Title VI Does Not Cover Protected Speech, But Antisemitic Actions at Cooper Union Went Beyond Speech

In Gartenberg v. The Cooper Union for the Advancement of Science and Art, (SD NY, Feb. 5, 2025), a New York federal district court held that Title VI of the 1964 Civil Rights Act must be applied consistent with the 1st Amendment, even as to private schools. In the case, a group of Jewish students asserted a claim for deliberate indifference to national-origin harassment under Title VI growing out of on-campus incidents after the Gaza-Israel conflict began. The court said in part:

First, speech “on a matter of public concern, directed to the college community,” will generally fail to “constitute unlawful harassment.” ...

[C]onstruing Title VI not to reach instances of pure speech on matters of public concern, or an institution’s failure to censor or punish the same, does not mean that such expression is irrelevant to determining whether actionable harassment occurred.  To make out a hostile environment claim, a plaintiff must plead (and then prove) not only that they suffered objectively severe or pervasive harassment, but that the harassment was motivated, at least in part, by a protected characteristic....

Cooper Union’s first line of defense is that none of the speech or conduct identified in Gartenberg’s Complaint was motivated by animus towards Jews, but was instead mere “criticism[] of Israel and/or its policies” and a “show[] of solidarity for the Palestinian cause.”... Gartenberg, by contrast, maintains that Zionism and support for Israel are “an integral part of the national origin and identity of many Jews,” and that Jews’ “belief in Israel as their ancestral national homeland is fundamental to their Jewish identity.” ...

... [T]his case can be resolved without opining on whether conduct or speech hostile to Zionism, itself a term subject to a considerable variety of interpretations, is necessarily antisemitic....

... That the demonstrators at Cooper Union generally avoided the use of overtly antisemitic language and symbols is ... not dispositive. Here, Gartenberg’s Complaint is replete with words and phrases that she alleges are thinly veiled “code words” designed to “activate conscious or subconscious [antisemitic] concepts and frames.”...  On October 25, 2023, for instance, pro-Palestinian students at Cooper Union chanted slogans like “[l]ong live the intifada,” “[r]esistance is justified,” and “[i]t is right to rebel.” ...  Although the parties offer competing interpretations of these slogans, when uttered just two weeks after the deadliest massacre of Jews since the Holocaust in a manner that reasonably appears to celebrate and glorify that same violence, the Court agrees that such phrases support at least a plausible inference of animus towards Jews....

Regardless of whether this expression is better characterized as righteous protest in support of a noble cause, as the vulgar celebration of terrorism and antisemitism, or as something in between, it is not a proper basis on which to impose civil liability on Cooper Union....

Gartenberg’s allegations, however, go beyond identifying instances of pure political speech.  Although the October 25 demonstration began as a peaceful, public protest concerning the Israeli-Palestinian conflict, Gartenberg alleges that after a couple hours a mob of protestors forced their way past campus security guards and into the Foundation Building....  

Once inside, the protestors obstructed the hallway and disrupted classes while apparently attempting to locate President Sparks.,,, Unable to find her, the protesters then “descended on the hallway surrounding the library” while continuing to chant their slogans...

It is plausible that this incident was physically threatening or humiliating to the Jewish students huddled inside the library.  The demonstrators “attempted to enter the library, banging on and rattling the locked library doors and shouting ‘let us in!’”...

The Court is dismayed by Cooper Union’s suggestion that the Jewish students should have hidden upstairs or left the building, or that locking the library doors was enough to discharge its obligations under Title VI.  These events took place in 2023—not 1943—and Title VI places responsibility on colleges and universities to protect their Jewish students from harassment, not on those students to hide themselves away in a proverbial attic or attempt to escape from a place they have a right to be.  In sum, the physically threatening or humiliating conduct that the Complaint alleges Jewish students in the library experienced “is entirely outside the ambit of the free speech clause,....

JNS reports on the court's decision.

Louisiana Grand Jury Indicts NY Doctor For Sending Abortion Medication to Purchaser in Lousiana

Louisiana Illuminator reports that last Friday a Baton Rouge, Louisiana grand jury indicted a New York doctor and her New York clinic for sending abortion pills into Louisiana in violation of a Louisiana statute enacted in 2022. This is the first criminal indictment of this kind since the overruling of Roe v. Wade. The abortion medication was ordered by a pregnant minor's mother who allegedly coerced her daughter into taking the pills. The mother has also been indicted in Louisiana. New York has a shield law designed to protect New York physicians from prosecution by other states for violation of their abortion laws.

Suit Challenges Museum's Diversity Policy as Violative of Employee's Religious Beliefs

Suit was filed last week in a New York federal district court by an employee of the Genesee Country Museum who was fired from her managerial position because her religious beliefs were inconsistent with the Museum's Diversity, Equity, Acceptance and Inclusion Policy. The complaint (full text) in Berkemeir v. Genesee County Museum, (WD NY, filed 1/2/2025), alleges that plaintiff's dismissal violates her free exercise and free speech rights, the Equal Protection Clause, and Title VII of the 1964 Civil Rights Act as well as other statutes. The complaint specifically focuses on requirements to address individuals by their preferred pronouns, but also sets out broader objections, stating in part:

80. Plaintiff also has the sincerely held religious belief, compelled by Scripture, that she is to “take no part in the unfruitful works of darkness,” but to “expose them.”... 

81. Plaintiff also has the sincerely held religious belief, compelled by Scripture, that silence in the face of evil is evil itself....

84. Plaintiff also has the sincerely held religious belief that for her to fail to speak out against things she knows are wrong results in the eternal condemnation of her soul....

228. Plaintiff’s sincerely held religious beliefs that compelled her to view all people as created by God in His image and equally deserving of respect did not comport with Defendants’ newly minted program of requiring all employees to view white people as “born oppressors” and somehow undeserving of identical respect and treatment. 

Liberty Counsel issued a press release announcing the filing of the lawsuit.

Ban on Firing Employee Because of Reproductive Health Decision May Violate Religious Employer's Expressive Association Rights

In CompassCare v. Hochul, (2nd Cir., Jan. 2, 2025), anti-abortion pregnancy centers and a Baptist Church challenge a New York statute which prohibits employers from discriminating against an employee based on any reproductive health care decision made by the employee or a dependent. Reviewing plaintiffs' expressive association claim, the court said in part:

[A]n entity like CompassCare, or another mission-based organization that advocates for a particular cause or set of beliefs, could plausibly allege that the compelled retention of a specific employee would impair its ability to express its message....

To sustain their challenge to the Act, each Plaintiff must adequately allege (and eventually prove) that the Act threatens “the very mission of its organization.”

However, the court rejected the claim that this provision violates free speech and free exercise rights.

The court also concluded that the law's notice provision which requires employee handbooks to include information on employees' rights under the New York labor law is subject only to rational basis review. The court said in part:

Requiring Plaintiffs to include among these wide-ranging provisions a notice informing employees of their available rights and remedies under a valid statute is not akin to requiring a crisis pregnancy center to distribute a notice about state-sponsored reproductive health services “at the same time [the centers] try to dissuade women from choosing that option.”... 

We conclude that the required notification does not interfere with Plaintiffs’ greater message and mission.

ADF issued a press release announcing the decision.

Ministerial Exception Is Affirmative Defense, Not Jurisdictional Bar

In Matter of Ibhawa v New York State Division of Human Rights, (NY Ct App, Nov. 26, 2024), New York's highest appellate court reversed a lower appellate court's dismissal of a priest's hostile work environment claim because the Appellate Division had treated the ministerial exception doctrine as a jurisdictional bar rather than as an affirmative defense.  The state Division of Human Rights had dismissed both the claim of racial and national origin discrimination and the hostile work environment claim by a Black Nigerian Catholic priest who was employed as a parish administrator. On appeal ultimately to the New York Court of Appeals, the court remanded the hostile work environment claim to the Division of Human Rights, saying in part:

... [O]nce the Diocese raised the ministerial exception as one of several affirmative defenses, the question confronting DHR was not whether the exception limited its power to consider Ibhawa's claim, but whether any of the Diocese's affirmative defenses—including the two statutory defenses raised by the Diocese—established that the case could not proceed beyond its current stage....

Because DHR erred in treating the ministerial exception as a jurisdictional bar rather than an affirmative defense, its determination was affected by an error of law. In reaching that conclusion, we express no view on whether any of the Diocese's defenses are meritorious.

[Thanks to John Melcon for the lead.]

2nd Circuit Hears Oral Arguments from Amish Seeking Vaccination Exemptions

The U.S. 2nd Circuit Court of Appeals yesterday heard oral arguments (audio of full oral arguments) in Miller v. McDonald. In the case, a New York federal district court upheld New York's removal of religious exemptions from its mandatory requirement for vaccination of school children. It rejected Free Exercise challenges by Amish individuals and schools, finding, in part that the law was both neutral and generally applicable, and thus did not trigger heightened scrutiny. (See prior posting.) Courthouse News Service reports on the oral arguments.

Court Refuses to Stay Discovery in Gay Teacher's Title VII Suit Against Catholic School

In Califano v. Roman Catholic Diocese of Rockville Centre, New York, (ED NY, Sept. 24, 2024), a New York federal district court refused to stay discovery in a Title VII sex discrimination suit brought by an openly gay math and English teacher at a Catholic elementary school. The court said in part:

... [A]t the motion to dismiss stage, “a [p]laintiff only has a minimal burden of alleging facts suggesting an inference of discriminatory motivation.”...

Plaintiff has plainly satisfied this standard.  Here, Plaintiff never received any criticisms about his job performance.  Instead, the Complaint alleges he was terminated based exclusively on his sexual preference after Defendants saw a social media post of him kissing his partner— another male.  More importantly, there is direct evidence for the termination: Defendants’ own personnel alluded to his homosexuality as a reason for the termination....

... [T]he question of application of the ministerial exception is fact specific.  That said, resolution on a motion to dismiss would be inappropriate....

... Plaintiff’s duties are not as intertwined with religious doctrine.  He was not a rabbi, priest, or member of the clergy with formal doctrinal training.  Therefore, deciding his Title VII claim would not impinge on the church autonomy doctrine and Defendants’ defense fails.  And here, Defendants fail to point to demonstrate that they would have fired Plaintiff even in spite of his identifying as a homosexual male....  

Although the ministerial and church autonomy doctrines appear to be inapplicable to Plaintiff’s claim, at the very least, discovery is necessary to proceed with this case--namely to discern whether the exceptions even apply to Plaintiff’s role as a Math and English teacher here.

Supreme Court Review Sought for NY Health Insurance Abortion Coverage Mandate

 A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Roman Catholic Diocese of Albany v. Harris, (Sup. Ct., filed 9/18/24). In the case New York's highest appellate court rejected a claim that the "religious employer" exemption to the state's requirement that health insurance policies cover medically necessary abortion services is too narrow.  The exemption is only available to entities whose purpose is to inculcate religious values and that primarily employ and serve persons who share their religious tenets. Plaintiffs, which are religiously affiliated entities, contend that their free exercise rights are infringed because they do not meet the criteria for the exemption. (See prior posting.) Becket Fund issued a press release announcing the filing of the petition for review.

NY AG Enjoined from Enforcing False Advertising Ban Against Clinics Promoting Abortion Pill Reversal

In National Institute for Family & Life Advocates v. James, (WD NY, Aug. 22, 2024), a New York federal district court preliminarily enjoined New York's Attorney General from enforcing New York's false advertising law against two pregnancy centers that promote abortion pill reversal in their promotional material and on their websites. The court said in part:

In short, a "morally and religiously motivated offering of free services cannot be described as a bare 'commercial transaction.'"... As such, the speech at issue here is not commercial.... . Nothing could be fundamentally less commercial than this speech about how a woman might save her pregnancy....

Because Plaintiffs' speech is noncommercial, restrictions are subject to strict scrutiny.... The State's enforcement of the New York Statutes against pro-life pregnancy centers based on their speech about APR is a content-based restriction, as it "target[s] speech based on its communicative content."... It is also viewpoint-based. The Attorney General targets statements supporting the APR protocol....

At the preliminary injunction hearing, the State conceded that it does not attempt to satisfy strict scrutiny. And the record is devoid of anything to suggest that this standard could be met....

Organizations Promoting Abortion Pill Reversal Sue New York Attorney General

Three anti-abortion organizations that promote abortion-pill reversal this week filed suit in a New York federal district court against New York Attorney General Letitia James. The complaint (full text) in Summit Life Outreach Center, Inc. v. James, (WD NY, filed 8/7/2024), alleges in part:

In a blitz attack that month, James mailed boilerplate notices-of-intention-to-sue (NOIs) to eleven New York-based pregnancy help organizations (PHOs) and the nonprofit operator of the national Abortion Pill Reversal Network. The NOIs alleged (without evidence) that recipients’ truthful noncommercial statements about APR constituted commercial fraud under two state statutes....

Plaintiffs in this action, pro-life organizations whose mission is informed by their religious conviction that abortion is the killing of an innocent human being, are not parties to that state court suit. But James’ years-long campaign of intimidation against pro-lifers creates considerable “risk of catastrophic harm” that Plaintiffs could soon suffer if (and highly likely when) they are targeted by similar lawfare over their own similar pro-APR communications.... Plaintiffs indeed already are being harmed because the litigative sword of Damocles that hangs above their heads has chilled their speech and forced them to discontinue communicating the science of APR.

Plaintiffs thus are compelled to file this suit to defend their rights to free speech, free exercise of religion, and due process under the First and Fourteenth Amendments. They seek declaratory and injunctive relief, and other such relief as the Court may deem just and equitable, so they can continue speaking about APR and refocus their attention on women in need.

 Thomas More Society issued a press release announcing the lawsuit.

Leader in International Neo-Nazi Group Indicted for Soliciting Hate Crimes and Mass Violence

The U.S. Attorney's Office for the Eastern District of New York announced last week the federal indictment of the leader of an international neo-Nazi group. The press release said in part:

A federal grand jury in Brooklyn yesterday returned a four-count indictment charging Georgian national Michail Chkhikvishvili, also known as ... “Commander Butcher” ... with soliciting hate crimes and acts of mass violence in New York City.  Chkhikvishvili was arrested in Chișinău, Moldova on July 6, 2024 pursuant to an Interpol Wanted Person Diffusion.... Chkhikvishvili is alleged to be a leader of the Maniac Murder Cult,... an international racially or ethnically motivated violent extremist group.  Chkhikvishvili allegedly recruited others to commit violent acts in furtherance of MKY’s ideologies, including planning and soliciting a mass casualty attack in New York City....

Beginning in approximately November 2023, Chkhikvishvili solicited [an FBI undercover agent ("UC")] ... to commit violent crimes....  Chkhikvishvili provided detailed plans and materials such as bomb-making instructions and guidance on making Molotov cocktails.... In November 2023, Chkhikvishvili began planning a mass casualty attack in New York City to take place on New Year’s Eve.  The scheme involved an individual dressing up as Santa Claus and handing out candy laced with poison to racial minorities.  The scheme also involved providing candy laced with poison to children at Jewish schools in Brooklyn.  Chkhikvishvili drafted step-by-step instructions to carry out the scheme and shared with the UC detailed manuals on creating and mixing lethal poisons and gases.  He also instructed the UC on methods of making ricin-based poisons in powder and liquid form....

Diocese Not Liable in Bankruptcy for Sex Abuse Without Agency Relationship with Abuser or Abuser's Institution

In In re Roman Catholic Diocese of Rockville Centre, New York, (SD NY, July 15, 2024), a New York federal district court affirmed a bankruptcy court's dismissal of appellants' claims that they were sexually abused as children by clergy and staff at religious institutions in the diocese's territory. The court said in part:

... [T]o adequately assert state law tort claims, Claimants must plead that the Debtor had some control over the abusers or the religious institutions where the abuse occurred....  In other words, Claimants were required to plead the existence of an employment or agency relationship between the Diocese and the alleged abusers, or an agency relationship between the Diocese and the religious institutions.   

The bankruptcy court properly determined that Claimants offered no non-conclusory allegations to support either theory of liability....

The bankruptcy court correctly observed that “the Free Exercise Clause and Establishment Clause of the United States Constitution bar courts from interpreting issues of religious Canon Law to resolve disputes.”...  Instead, “the claimants must show that an employment or agency relationship existed between the Debtor and abuser or Religious Institutions/Orders, based on facts relevant to those theories as they are normally established in the secular context.”... [T]he resolution of the issue presented in this case ... does not, however, depend upon any interpretation of Canon Law that would violate the First Amendment.  Here, Claimants fail to state a claim because the allegation that the Diocese revoked the faculties of one abuser accused in connection with a claim that is not at issue in this appeal is insufficient to plausibly allege that the specific abusers at issue here were employees or agents of the Diocese, or that their institutions were agencies of the Diocese.... [A]n allegation that the Diocese hired, fired, supervised, or disciplined an individual not at issue in this appeal does not support an inference that the Diocese has the power to control all clergy or staff at Catholic institutions within its geographic territory or exercised that power over any specific abuser in this appeal....

2nd Circuit: Trial Court Must Make Further Findings in Wedding Photographer's Challenge to NY Public Accommodation Law

In Emilee Carpenter, LLC, dba Emilee Carpenter Photography v. James, (2d Cir., July 12, 2024), the U.S. 2nd Circuit Court of Appeals reversed and remanded a New York federal district court's dismissal of a free speech challenge by a wedding photographer to New York's public accommodation law that bars discrimination on the basis of sexual orientation.  The photographer refuses because of her religious and personal beliefs to photograph same-sex weddings.  The court held that the case must be remanded for further fact finding in light of the U.S. Supreme Court's intervening decision in 303 Creative LLC v. Elenis. The court said in part:

... [W]hether Carpenter’s actual wedding photography services constitute expressive conduct is an open threshold question for the district court to consider on remand...

To state a compelled speech claim, it is not enough for a plaintiff to show that the service at issue involves a medium of expression.  The plaintiff must also demonstrate that the expressive activity is her own – that is, she created the expressive content herself or, by compiling or curating third-party content in some forum, she is also engaged in her own expressive activity....

Here, to the extent Carpenter is using her photographs or website to host the expressive content of third parties (such as the wedding couple who hired her), rather than her own, the district court must determine ... whether the law compels Carpenter’s own speech....

Specifically, the court should assess whether Carpenter’s blogging is more akin to, for instance, advertisement than to a service Carpenter offers to the general public, which her customers purchase from her—in other words, whether Carpenter’s blogging is a good or service regulated by New York’s public accommodations laws....

The court rejected the photographer's expressive association, free exercise, Establishment Clause and vagueness claims, saying in part:

Nowhere in her complaint does Carpenter allege that she offers as a service to the public her active religious participation in the weddings that she photographs.  New York’s laws therefore do not require Carpenter to sing, pray, follow an officiant’s instructions, act as a “witness” of the union “before God,” or otherwise participate in any same-sex wedding....

Courthouse News Service and ADF report on the decision. 

Church Ceremony Without Marriage License Was Enough to Create a Civil Marriage In New York

In L.F. v. M.A., (NY Cnty. Sup. Ct., July 9, 2024), a New York state trial court, in a divorce action, held that a ceremony at a Coptic Orthodox Church in New York was sufficient to consider the parties civilly married even though they did not obtain a civil marriage license. Defendant had contended that the ceremony was merely a family blessing, and that the parties were never married.  According to the court:

At stake is not just the status of the parties' young child in common or spousal maintenance, but potentially millions of dollars in what would be marital assets versus separate property.

In a prior decision, the court ordered the Bishop who performed the ceremony to testify about it. In the current decision, the court said in part:

... [T]he parties participated in a religious solemnized ceremony, one that so looked like a wedding that the church's Father H.H. prepared the marriage certificate, and until one day before his testimony here, never thought anything other than that the parties were married that day in that ceremony. Plaintiff believed she was married — that is undisputed. Defendant now states that he did not think he was married, but his actions during the years immediately after the ceremony paint a clear and undisputed picture that he could have only thought that he was married and not otherwise.... In reaching its determination, the Court must, and does, apply neutral principles of law, and does not reach into religious details of a ceremony within the Coptic Orthodox Church. The court finds, by a preponderance of the evidence, that Plaintiff has more than carried her burden that there was indeed a religious marriage ceremony that day, and further, that both parties so understood, as well, as did Father H.H. (and at least some of their wedding's witnesses).

United Methodist Church Is Not a Jural Entity That Can Be Sued Under NY Child Victims Act

In Chestnut v. United Methodist Church, (NY App. Div., July 10, 2024), a New York state appellate court held that the "United Methodist Church" is not a jural entity that can be sued under New York's Child Victims Act. Plaintiff, who alleged that she was sexually abused as a young child over a 4-year period by a youth group leader who was also the son of a clergyman, named 6 defendants. She alleged that United Methodist Church was in a principal-agent relationship with the Woodbury, New York church that employed the abuser. The court said in part:

Here, the issue of whether United Methodist Church is a jural entity capable of being sued does not concern a religious controversy, and, therefore, does not require the interpretation or application of ecclesiastical doctrine. Instead, the issue of whether United Methodist Church may be considered an unincorporated association rests entirely on neutral principles of law....

... [W]e conclude that the defendants established that United Methodist Church ... is a religious denomination ... and not a jural entity amenable to suit as an unincorporated association. It is undisputed that United Methodist Church does not have a principal place of business, does not have its own offices or employees, and does not and cannot hold title to property, and there is no proof in the record that United Methodist Church has incorporated or held itself out as a jural entity in any other jurisdiction....

... United Methodist Church governs itself through the efforts of United Methodists from all over the world who, at various levels, propose and adopt policies and procedures in the Discipline to be followed by, among others, local churches, annual conferences, and the various corporate entities at the general church level, such as GCFA. Given this unique structure, the hierarchical nature of United Methodist Church's "connectional" structure does not, in and of itself, suggest that United Methodist Church is an unincorporated association or anything other than a religious denomination.

Claims That College Encouraged Jewish Plaintiffs to File Antisemitism Claims Are Dismissed

As previously reported, five Orthodox Jewish faculty members at New York's Kingsborough Community College are suing the school, the faculty union and various faculty members asserting religious hostile work environment and retaliation claims. Two of the faculty member defendants in turn filed cross claims against the school (which is part of City University of New York) alleging breach of contract and First Amendment violations. They alleged that the school was complicit with plaintiffs in attempting to retaliate against them for their expression of anti-Israel views. In Lax v. City University of New York, (Kings Cty. NY Sup. Ct., July 5, 2024), a New York state trial court dismissed the cross claims. The court said that cross claimants had not alleged any retaliatory animus or adverse action taken by the school. The court said in part:

CUNY, as a governmental entity, cannot be held liable for failing to prevent plaintiffs from allegedly violating Wetzel and Perea's right to free speech since CUNY was not charged with any affirmative duty to silence plaintiffs regarding their complaints of discrimination and anti-Semitism....

Having an anti-Israel political agenda is not a protected group under the NYSHRL or the NYCHRL....

... Wetzel and Perea have not alleged that CUNY instigated or encouraged plaintiffs to file their EEOC complaints or to otherwise accuse them of anti-Semitism. 

--[CORRECTED] 

[Thanks to Volokh Conspiracy for the lead.] 

Court Upholds Firing of Nurse with Religious Objections to Flu Vaccine

In French v. Albany Medical Center, (ND NY, June 12, 2024), a New York federal district court upheld a hospital's firing of a nurse who refused for religious reasons to receive the flu vaccine. Plaintiff based her religious exemption claim on teachings of the "Israelite" religion which she adopted in 2018. Rejecting plaintiff's claim that the hospital violated Title VII by refusing to accommodate her religious beliefs, the court said in part:

[T]he Court concludes that Plaintiff's requested accommodation was not reasonable as it was a blanket exemption request which would have allowed her to continue interacting with staff and vulnerable patients while unvaccinated. This exemption would have caused an undue hardship on Defendant.

The court also rejected plaintiff's claims of disparate treatment and retaliation, saying in part:

Plaintiff has not presented any evidence that her religion was a motivating factor in Defendant's decision to suspend and terminate her.

New York's Top Court Says That Religious Employer Exemption from Abortion Coverage Mandate Is Not Too Narrow

In Roman Catholic Diocese of Albany v Vullo, (NY Ct. App., May 21, 2024), New York's highest appellate court rejected a claim that the "religious employer" exemption to the state's requirement that health insurance policies cover medically necessary abortion services is too narrow.  The exemption is available only to an employer that meets 4 criteria-- it is a non-profit organization whose purpose is the inculcation of religious values and it primarily employs and serves persons who share the entity's religious tenets. Plaintiffs, which are religiously affiliated entities, contend that their free exercise rights are infringed because they do not meet the criteria for the exemption, The court said in part:

... [B]oth the regulation itself and the criteria delineating a "religious employer" for the purposes of the exemption are generally applicable and do not violate the Free Exercise Clause. Neither the existence of the exemption in the regulation nor the defined criteria allow for "individualized exemptions" that are standardless and discretionary, nor do they allow for comparable secular conduct while discriminating against religious conduct.

Reuters reports on the decision.

Religious Discrimination Claim for Denial of Personal Leave Moves Ahead

In Balchan v. New Rochelle City School District, (SD NY, May 7, 2024), a New York federal district court refused to dismiss claims of religious discrimination, retaliation for submitting claims of religious discrimination, and a due process claim for stigmatization plus loss of employment. Plaintiff is a Jewish woman who was employed as the school district's Medial Director. At issue are disciplinary charges brought against her for allegedly using personal leave days for a vacation and the stigmatizing report by a hearing officer in connection with those charges. The court details the factual background in part as follows:

Plaintiff observes Jewish holidays including, but not limited to, Yamim Nora’im (a/k/a the “Days of Awe”), Rosh Hashanah, and Yom Kippur..... Plaintiff alleges that her personal scheme of things religious evolved over the course of her life, and that marriage to her Trinidadian husband resulted in her “meld[ing] many of her Jewish religious beliefs into her new Trinidadian identity.” ...

... Specifically, Plaintiff’s “personal scheme of things religious required that she take personal leave during [the Days of Awe] to adjust, meditate, repair her connection to [God], and re-focus . . . .” Accordingly, she planned a trip with her family to Trinidad and Tobago which she alleges was “religious in nature given its relation to the Jewish high holy days” and what had been going on in her personal and professional life....

Court Says NY Proposed Amendment on Abortion, Sexual Orientation and Gender May Not Go on Ballot

In Byrnes v. Senate of the State of New York, (Livingston County NY Sup. Ct., May 7, 2024), a New York state trial court held that the proposed state Equal Protection constitutional amendment must be removed from the November 2024 ballot because the state legislature did not follow the proper procedures in approving the amendment for placement on the ballot.  The proposed amendment (full text) would expand the state constitution's Equal Protection clause by adding ethnicity, national origin, age, disability, sex (including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes and reproductive healthcare and autonomy) to race, color, creed and religion that are already protected against discrimination by the clause. The clause covers discrimination by private individuals and firms as well as by the state and the proposed amendment provides that no characteristic listed in the section shall be interpreted to interfere with the civil rights of any other person based on any of the other characteristics listed. The court held that the state legislature's failure to wait 20 days for an Attorney General's opinion on the proposed amendment before taking the initial vote on it invalidated the Resolution proposing the amendment. The City reports on the decision.