Religion Clause

Monday, September 04, 2023

Saturday, September 02, 2023

Court Refuses Stay Pending Appeal of Order That Attorneys Get Religious-Liberty Training

As previously reported, last month a Texas federal district court ordered sanctions against Southwest Airlines for its failing to comply with an earlier Order in the case that found the Airline had violated Title VII when it fired a flight attendant because of her social media messages about her religiously-motivated views on abortion. Southwest then filed a motion to stay the sanctions while the case is appealed. In Carter v. Transport Workers Union of America, Local 556, (ND TX, Aug. 31, 2023), the court denied the motion to stay the sanctions. Among other things, Southwest objected to the court's requirement that three of the Airline's attorneys who were responsible for non-compliance with the earlier Order attend at least 8 hours of religious liberty training conducted by the Christian legal non-profit Alliance Defending Freedom. The court said in part:

... Southwest complains that “[r]equiring religious-liberty training from an ideological organization with a particular viewpoint on what the law requires” is “unprecedented.” That appears to be more of a gripe than a legal objection, because Southwest doesn’t make any legal argument for why training with an “ideological organization” is unconstitutional or otherwise contrary to law.

In any event, the Court selected ADF for the following reason: Southwest does not appear to understand how federal law operates to protect its employees’ religious liberties. ADF has won multiple Supreme Court cases in recent years on the topic of religious liberties, evidencing an understanding of religious liberties. And because ADF has agreed to conduct topical trainings in the past, ADF appears well-suited to train Southwest’s lawyers on a topic with which the lawyers evidently struggle.

In a footnote, the court added:

This doesn’t appear to be a First Amendment argument, as Southwest doesn’t cite the First Amendment or any First Amendment caselaw, so it appears that Southwest forfeited any First Amendment arguments concerning ADF’s viewpoint.

LawDork reports on the decision.

Friday, September 01, 2023

Texas Supreme Court Allows Ban on Transgender Care for Minors to Go into Effect

The Texas Supreme Court yesterday in State of Texas v. Loe, (TX Sup. Ct., Aug. 31, 2023), issued an Order allowing SB 14 to go into effect. The law prohibits treating minors for gender dysphoria with surgery, puberty blocker or hormones. According to an ACLU press release:

A Travis County District Court had granted a temporary injunction last week that blocked implementation of the ban, but the Texas Attorney General immediately appealed to the Texas Supreme Court, thereby staying the injunction. The Texas Supreme Court did not provide any written explanation for allowing the law to remain in effect.

Court OK's Denial of Unemployment Benefits for Religious Objector to Covid Vaccine Mandate

In In re Parks v. Commissioner of Labor, (NY App., Aug. 31, 2023), a New York state appellate court affirmed the decision of the state Unemployment Insurance Appeal Bord denying unemployment compensation to a medical center security guard who was fired for refusing to comply with a Covid vaccine mandate. The court said in part:

Although claimant refused to comply with the mandate for personal reasons that he characterized as based upon his religious beliefs, the state mandate did not authorize a religious exemption. Contrary to claimant's contention that the vaccine mandate violates his First Amendment religious and other constitutional rights, religious beliefs do not excuse compliance with a valid, religion-neutral law of general applicability that prohibits conduct that the state is free to regulate, as the Board recognized.... When employment is terminated as a consequence of the failure to comply with such a law, including noncompliance with a religious motivation, the First Amendment does not prohibit the denial of unemployment insurance benefits based upon that noncompliance where, as here, the mandate has a rational public-health basis and is justified by a compelling government interest....

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Reproductive Rights Proponents Sue Ohio Ballot Board Over Ballot Language

On Monday, a suit seeking a writ of mandamus was filed in the Ohio Supreme Court by backers of Issue 1, "Right to Reproductive Freedom with Protections for Health and Safety." The suit challenges the Ohio Ballot Board's revised language describing the state constitutional amendment that will be on the November ballot in the state. (See prior posting.) Instead of placing the text of the proposed Amendment on ballots, the Ballot Board drafted new language which plaintiffs say misrepresents the proposed amendment. The complaint (full text) in State of Ohio ex rel. Ohioans United for Reproductive Rights v. Ohio Ballot Board, (OH Sup. Ct. filed 8/28/2023), alleges in part:

Article XVI of the Ohio Constitution requires the Ohio Ballot Board to prescribe ballot language for the Amendment that “properly identif[ies] the substance of the proposal to be voted upon” and does not “mislead, deceive, or defraud” voters. The language the Ballot Board adopted at its August 24, 2023, meeting flouts those requirements and aims improperly to mislead Ohioans and persuade them to oppose the Amendment. Accordingly, Relators request that the Court issue a writ of mandamus directing the Ballot Board to reconvene and adopt the full text of the Amendment as the ballot language. That remedy is appropriate because the Ballot Board’s prescribed language is irreparably flawed. In the alternative, Relators request that the Court issue a writ of mandamus directing the Ballot Board to reconvene and adopt ballot language that properly and lawfully describes the Amendment, correcting the numerous defects in the existing language....

CBS News reports on the lawsuit.

Thursday, August 31, 2023

8th Circuit Rejects Satanic Temple's Complaint Over Closing Park to Its Display

In The Satanic Temple v. City of Belle Plaine, Minnesota,(8th Cir., Aug. 30, 2023), the U.S. 8th Circuit Court of Appeals held that the district court was correct in dismissing free speech, free exercise, equal protection, and RLUIPA claims brought by The Satanic Temple (TST) against the City of Belle Plaine. As summarized by the court:

In March 2017, the City gave two groups permits [to place monuments in Veterans Memorial Park]: the Belle Plaine Veterans Club and the Satanic Temple. The Veterans Club returned the kneeling soldier statue to the Park in April, but the Satanic Temple’s display wasn’t ready yet. While the Satanic Temple’s display was being built, people objected to it being placed in the Park. In June, the Satanic Temple told the City that its display was ready. The City Council then passed a “Recission Resolution,” closing the Park as a limited public forum, terminating both permits, and instructing the Veterans Club to remove its statue.

The court held:

The City closed the limited public forum to everyone, not just speakers with certain views. The Satanic Temple has not plausibly alleged that closing the Park as a limited public forum was unreasonable or viewpoint discriminatory....

...The Satanic Temple has not alleged any facts showing that its religious conduct was targeted for “distinctive treatment.”...

... The Satanic Temple has not plausibly alleged that the City’s resolutions burden its religious conduct or philosophy....

The Satanic Temple has not plausibly alleged that it and the Veterans Club were similarly situated or that it was treated differently. Nor has it plausibly alleged that the Rescission Resolution was discriminatory on its face or had a discriminatory purpose or impact. The City gave a permit to both groups, had no control over the fact that the Veterans Club placed its statue first, and closed the Park as a limited public forum to everyone. So the Satanic Temple has not plausibly alleged an equal protection claim.

Muslim Call to Prayer Can Be Amplified In New York City

Yesterday, New York City Mayor Eric Adams announced a new initiative to permit mosques to broadcast the call to public prayer on Fridays and during Ramadan. According the announcement from the Mayor's office:

“Today, we are cutting red tape and saying clearly that mosques and houses of worship are free to amplify their call to prayer on Fridays and during Ramadan without a permit necessary....

... The NYPD’s new legal guidance clarifies for mosques and masjids that the call to prayer is allowed in New York City and not prohibited despite sound restrictions in city neighborhoods.

Under the new guidance, a mosque or masjid can broadcast the call to prayer every Friday between 12:30 PM and 1:30 PM as well as during the sunset prayers every evening during Ramadan....

The NYPD Community Affairs Bureau and Muslim faith leaders will work collaboratively in every neighborhood with mosques and masjids to communicate the new plans for Adhan to local community leaders and stakeholders. They will work to ensure that any sound device used to broadcast an Adhan is set at appropriate decibel levels and in accordance with the rules of the noise code within the city’s administrative code.

Wednesday, August 30, 2023

Jewish Faculty at NY College Can Move Ahead with Hostile Work Environment Lawsuit

In Lax v. City University of New York, (NY Kings Cty. Sup. Ct., Aug. 24, 2023), a New York state trial court allowed five Orthodox Jewish faculty members at Kingsborough Community College to move ahead with their religious hostile work environment and retaliation claims against the school, the faculty union and others (except for certain claims that duplicated ones being pursued administratively). According to the court:

Plaintiffs allege that they and other observant Jewish faculty and staff members at Kingsborough have faced pervasive, anti-religious discrimination from a particular segment of fellow faculty members who are the leaders of a faculty group called the Progressive Faculty Caucus of Kings borough Community College (PFC).... The New Caucus closely coordinated with the PFC.... Plaintiffs claim that the New Caucus members collaborated with the PFC members to dominate campus elections and call for the removal of observant Jewish faculty members, administrators, department chairs, and others at Kings borough. Plaintiffs allege that each of the defendants actually participated in, and aided and abetted, the conduct giving rise to their discrimination and retaliation claims.

Plaintiffs assert, among numerous alleged acts of discriminatory conduct, that ... the PFC and the New Caucus members lobbied against ... observant Jewish candidates running in campus elections; that the PFC members called for the removal of observant Jewish faculty members...; that the PFC organized an anti-discrimination event for a Friday night ... with the purpose of excluding Sabbath-observant Jewish members...; that the Union leaders applied pressure to Kingsborough's chief diversity officer ... to suppress the investigation of the Friday Night Event....

... CUNY claims that it is not responsible for the alleged discrimination against plaintiffs by a faculty group, i.e., the PFC, or the political party composed of certain members of the faculty, i.e., the New Caucus. CUNY maintains that plaintiffs lump all of their disparate allegations together in an attempt to hold it responsible for the alleged actions of the other defendants.

An employer, such as CUNY, however, can be held liable for an employee's discriminatory act where "the employer became a party to it by encouraging, condoning, or approving it"....

Legal Insurrection reports on the lawsuit.

Ecclesiastical Abstention Doctrine Does Not Apply to Church's Fraud Claims Against Former Pastor

In New Bethel Baptist Church v. Taylor, (TX App., Aug. 29, 2023), a Texas state appellate court held that the ecclesiastical abstention doctrine does not prevent civil courts from adjudicating fraud, breach of fiduciary duty and conversion claims against its former pastor who also served as the general contractor on a church construction project. Plaintiff claims that the pastor withdrew $300,000 from the church's bank account without authorization. The court concluded that the claims can be resolved using neutral principles of law. the court said in part:

... [T]he resolution of these causes of action does not depend on the interpretation of New Bethel’s bylaws and constitutions or other relevant provisions of governing documents. Indeed, this is an example of a civil law controversy in which a church official happens to be involved....

However, the court affirmed the dismissal of the suit because the attorney did not carry her burden of proof that she was authorized to represent the church. The court said in part:

... [R]egardless of how it is named or classified in the underlying suit, it is undisputed that there is only one church. Within this one church, there are two competing factions claiming control, i.e., the board of deacons and directors. With two competing factions claiming control of the church, attorney Robinson, as the challenged attorney, was either authorized to represent both entities, or she was not. In granting Taylor’s rule 12 motion to show authority, the trial court concluded that attorney Robinson failed to discharge her burden of proof to show her authority to act and nothing more.

Title VII Claim for Denying Religious Exemption from Vaccine Mandate Moves Ahead

In MacDonald v. Oregon Health & Science University, (D OR, Aug, 28, 2023), an Oregon federal district court refused to dismiss a Title VII claim by a former nurse in a hospital's Mother and Baby Unit who was denied a religious exemption from the hospital's Covid vaccine mandate. The hospital argued that because plaintiff's job duties required her to interact with vulnerable pregnant mothers and newborn babies, any accommodation would pose an "undue hardship" on the hospital. The court pointed out that on a motion to dismiss, unlike on a motion for summary judgment, the court is generally not permitted to consider evidence outside of the pleadings, saying in part:

Accordingly, this Court finds that, at this stage, it is unable to properly consider the extrinsic evidence on which Defendants rely to show either that there were no other viable accommodations to Plaintiff’s vaccination, or that any accommodations would have created an undue hardship consistent with Groff....

... [O]n a fuller evidentiary record, Defendants may be able to satisfy their burden to show that any accommodation would indeed have resulted in a substantial cost to OHSU. But Defendants have not met that burden at this stage.

The court however dismissed plaintiff's 1st Amendment free exercise claim, concluding that defendants had qualified immunity.

Tuesday, August 29, 2023

Challenge To Maine's Past Covid Restrictions on Churches Is Dismissed

In In re COVID-Related Restrictions on Religious Services, (DE Super., Aug. 28, 2023), a Delaware Superior Court dismissed a suit challenging now-rescinded restrictions that limited the number of attendees and the activities in houses of worship during the Covid pandemic. The court concluded that the governor had qualified immunity from damage claims because at the time it was not clearly established that these types of restrictions violated the U.S. Constitution. The State Tort Claims Act gives the governor immunity from damage actions for violation of the Delaware Constitution. The court also concluded that there is no case or controversy to give it jurisdiction to issue a declaratory judgment and that plaintiffs lack standing to bring their claims, saying in part:

The Court can have no influence on the alleged past harm caused by the Restrictions when they have already been terminated years ago.

WDEL News reports that plaintiffs plan an appeal to the state Supreme Court.

New Jersey Settles With Township Accused of Discriminating Against Orthodox Jewish Residents

A Consent Order (full text) was entered yesterday by a New Jersey trial court in Platkin v. Jackson Township, (NJ Super., Aug. 28, 2023). In the suit, the state alleged that the Township had violated the Law Against Discrimination by taking zoning and enforcement actions against the growing Orthodox Jewish population in the Township. (See prior posting.) Under the Order, the Township must pay $275,000 in penalties and place another $150,000 in a Restitution Fund. It must end its discriminatory use of land use and zoning regulations and create a Multicultural Committee. It must create procedures for erecting Sukkahs and eruvim, and must comply with a previously issued order in federal enforcement case to zone to allow religious schools, including schools with dormitories, in various parts of the Township. The New Jersey Attorney General issued a press release with further information on the settlement agreement.

Monday, August 28, 2023

Now Ohio Ballot Language On Abortion Rights Is The Issue

As reported by the Statehouse News Bureau, proponents of a reproductive rights amendment to the Ohio Constitution which will be voted on in November are considering a lawsuit against the Ohio Ballot Board which rejected the language proponents asked to be used on the ballot that voters will see. The Board replaced proponents' language with language drafted by Ohio's Secretary of State who is an abortion opponent. Proponents' Initiative Petition asked for the full 250-word text of the proposed Amendment to appear on the ballot. Secretary of State Frank LaRose, saying that this was too long, instead drafted a 203-word Summary which uses the term "unborn child" four times in describing the effect of the proposed Amendment.

Sunday, August 27, 2023

Jewish Couple Denied Child Placement Services by United Methodist Agency Have Standing to Sue

In Rutan-Ram v. Tennessee Department of Children's Services, (Aug. 24, 2023), a Tennessee state appellate court reversed a decision of a special 3-judge trial court (see prior posting) and held that a Jewish couple who allege religious discrimination by a state-subsidized United Methodist child-placement agency have standing to sue. The agency refused to provide the couple with foster care training and a home study because the couple did not share the agency's religious beliefs. A Tennessee statute protects faith-based agencies that refuse to participate in placing a child because of the agency's religious or moral convictions. Subsequently the Department of Children's Services provided the couple directly with the training required. The court said in part:

In the present case, the allegations of the complaint assert that the Couple has been denied and are being denied equal access to stated-funded foster and adoption services because of their Jewish faith. In finding that the Couple lacked standing, the three-judge panel again emphasized that the State was providing the Couple with child placement services. However, when the state makes it more difficult for members of one group than for members of another group to obtain services, the injury in fact “is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” ...

When a statute subjects a group of people to unequal treatment based upon their religious beliefs, the fact that the statute may allow discrimination against other religious groups does not negate a disfavored group’s standing to challenge the statute....

The court also concluded that six other Tennessee taxpayers who were co-plaintiffs have taxpayer standing to sue. AP reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Friday, August 25, 2023

West Virginia's Ban on Prescribing Mifepristone By Telemedicine Is Pre-Empted By FDA Rules

In GenBioPro, Inc. v. Sorsaia,, (D WV, Aug. 24, 2023), a West Virginia federal district court dismissed a challenge to West Virginia abortion restrictions that are no longer in effect. The restrictions will go back into effect only if provisions of the more recent Unborn Child Protection Act (UCPA) are held unconstitutional. The court held that neither federal statutes nor FDA rules pre-empt state restrictions on when abortions may be performed. However, the court refused to rule further on the UCPA provisions, saying in part:

[T]he Court has not found that the UCPA is unconstitutional. As none of these prior restrictions are currently in effect, this Court may not issue an advisory opinion as to the constitutionality of a law not presently operative.

The court also rejected arguments that state restrictions on the sale of mifepristone violate the Commerce Clause, saying in part:

[T]he Supreme Court and Courts of Appeals have repeatedly affirmed that morality-based product bans do not intrinsically offend the dormant Commerce Clause.

However the court did find that West Virginia's ban on prescribing mifepristone by telemedicine, which is still in effect, is pre-empted by FDA rules allowing telemedicine prescriptions for the drug. The Hill reports on the decision.

Religious or Parental Rights Not Violated By School Classroom Discussion of LGBTQ-Themed Books

In Mahmoud v. McKnight, (D MD, Aug. 24, 2023), a Maryland federal district court refused to issue an injunction to allow parents to opt their public-school children out of classroom reading and discussion of books with LGBTQ themes. Parents claim that the books' messages violate parents' sincerely held religious beliefs. The court said in part:

In essence, the plaintiffs argue that by being forced to read and discuss the storybooks, their children will be pressured to change their religious views on human sexuality, gender, and marriage. The Court interprets this argument as an indoctrination claim....

The plaintiffs have not identified any case recognizing a free exercise violation based on indoctrination....

Here, the plaintiffs have not shown that the no-opt-out policy likely will result in the indoctrination of their children....

Separate from any indoctrination claim, Mahmoud and Barakat contend their son would be forced to violate Islam’s prohibition of “prying into others’ private lives” and its discouragement of “public disclosure of sexual behavior” if his teacher were to ask him to discuss “romantic relationships or sexuality.”... Forcing a child to discuss topics that his religion prohibits him from discussing goes beyond the mere exposure to ideas that conflict with religious beliefs. But nothing in the current record suggests the child will be required to share such private information. Based on the evidence of how teachers will use the books, it appears discussion will focus on the characters, not on the students.....

The parents assert that their children’s exposure to the storybooks, including discussion about the characters, storyline, and themes, will substantially interfere with their sacred obligations to raise their children in their faiths.... [T]he parents’ inability to opt their children out of reading and discussion of the storybooks does not coerce them into violating their religious beliefs.... The parents still may instruct their children on their religious beliefs regarding sexuality, marriage, and gender, and each family may place contrary views in its religious context. No government action prevents the parents from freely discussing the topics raised in the storybooks with their children or teaching their children as they wish.

In a press release on the decision, Becket Fund announced that the case will be appealed to the 4th Circuit.

Human Resources Employee Sues Seeking Religious Accommodation to Avoid DEI Participation

A lawsuit was filed last month in a California federal district court by Courtney Rogers, a former human resources employee of a multinational food service company, who was fired after she objected to taking part in the company's DEI program, captioned Operation Equity. Rogers sought a religious accommodation because Operation Equity violates her religious and moral beliefs. The program offers special training and mentorship to women and people of color. The complaint (full text) in Rogers v. COMPASS Group USA, Inc., (SD CA, filed 7/24/2023), alleged in part:

59. ROGERS has sincerely held religious beliefs, based on deeply and sincerely held religious, moral, and ethical convictions, that people should not be discriminated against because of their race.

60. ROGERS’s religious beliefs conflicted with the job’s requirements because she was required to work on implementing something COMPASS called “Operation Equity,” an employment program designed to exclude white males from opportunities for training, mentorship and promotion.

Rogers had proposed swapping 2 to 3 hours per week of her duties with another employee, but the company refused to discuss an accommodation. The complaint alleges violations of Title VII and various provisions of California law. She seeks damages and reinstatement. SHRM reports on the lawsuit.

Thursday, August 24, 2023

South Carolina Supreme Court Upholds Heartbeat Abortion Ban

In Planned Parenthood South Atlantic v. State of South Carolina, (SC Sup. Ct., Aug. 23, 2023), the South Carolina Supreme Court upheld the 2023 version of South Carolina's heartbeat abortion ban enacted in response to an earlier decision by the same court striking down an earlier version of the law. The court said in part:

[T]he legislature has found that the State has a compelling interest in protecting the lives of unborn children. That finding is indisputable and one we must respect. The legislature has further determined, after vigorous debate and compromise, that its interest in protecting the unborn becomes actionable upon the detection of a fetal heartbeat via ultrasound by qualified medical personnel. It would be a rogue imposition of will by the judiciary for us to say that the legislature's determination is unreasonable as a matter of law—particularly on the record before us and in the specific context of a claim arising under the privacy provision in article I, section 10 of our state constitution.

As a result, our judicial role in this facial challenge to the 2023 Act has come to an end. The judiciary's role is to exercise our judgment as to whether the legislative weighing of competing interests was within the range of possible, reasonable choices rationally related to promoting the legislature's legitimate interests. Having concluded that it was, we consequently defer to the legislature's gauging of the profound, competing interests at stake. Accordingly, we vacate the preliminary injunction and hold the 2023 Act is constitutional.

Justice Few filed a concurring opinion, saying in part:

Ultimately, the General Assembly did not attempt to simply re-enact the same legislation, as Planned Parenthood argues. Rather, it amended the 2021 Act in what appears to be a sincere attempt to comply with the narrowest reading of this Court's ruling in Planned Parenthood I. The question now before the Court, therefore, is whether the attempt was successful; do the changes the General Assembly made from the 2021 Act to the 2023 Act make it possible for this Court to find the 2023 Act constitutional under article I, section 10, despite the fact the threshold for banning most abortions did not change....

When this Court evaluated the constitutionality of the 2021 Act, we balanced the State's interest in protecting unborn life against the statutory countervailing interest of "informed choice" and the privacy interests arising from article I, section 10. As there is no "informed choice" provision in the 2023 Act, the State's interest in protecting unborn life is now balanced against only the constitutional privacy interests.

Chief Justice Beatty filed a dissenting opinion, saying in part:

In my view, because the material terms of the 2023 Act have not changed from the 2021 Act, logic and respect for the doctrine of stare decisis dictate that the 2023 Act should likewise be declared unconstitutional.

AP reports on the decision.

Statute of Limitations Not Tolled on Navy Chaplains' Claims

In In re: Naval Chaplaincy, (D DC, Aug. 23, 2023), the D.C. federal district court held that plaintiffs have not shown that the running of the statute of limitations on their free exercise claims should be tolled because of fraudulent concealment. In the case, which has been in litigation for nearly 25 years, non-liturgical Protestant chaplains alleged discrimination against them by selection boards that control promotions and early retirements of Navy chaplains. (See prior posting.)