Nebraska Governor Says State Will Not Comply with New Title IX Rules On Gender Identity Discrimination

As previously reported, last month the U.S. Department of Education promulgated new rules under Title IX on sex discrimination by educational programs receiving federal financial assistance. Among other things, the new rules provide that sex discrimination includes discrimination on the basis of sexual orientation or gender identity. Last Friday, Nebraska Governor Jim Pillen announced that Nebraska will not comply with the new title IX requirements which go into effect on August 1.  His announcement says in part:

 “The Biden administration’s rewrite of Title IX is an affront to the commonsense idea that men do not belong in women’s only spaces,” said Gov. Pillen. “It’s also a direct attack on the Women’s Bill of Rights, established by my executive order last August.” 

Gov. Pillen’s executive order declares the biological definition of male and female and protects women’s sports and the privacy of women-only spaces. 

"Protecting our kids and women’s athletics is my duty," said Gov. Pillen. "The President's new rules threaten the safety of women and their right to participate in women’s sports. Nebraska will not comply. We must fight against radical gender ideology and vigorously protect the rights of Nebraska women and girls.”

Vice President Issues Statement on Yom HaShoah

Today is Yom HaShoah. The White House has posted a Statement from Vice President Harris on Holocaust Remembrance Day (full text).  The Statement says in part:

[I]n recent days in the United States, we have seen hateful rhetoric and harassment against Jews. This is Antisemitism and must be condemned unequivocally. Hate of any kind has no place in our country.

For the Jewish people, the past seven months have evoked the memories—along with fear and anguish—of the Holocaust. So to all the Jewish people around the world, know this: President Joe Biden and I stand with you. We will fight Antisemitism with the full force of the U.S. government, including through the first-ever National Strategy to Counter Antisemitism. We will continue to stand with the people of Israel and its right to defend itself from those that threaten its existence. And we remain committed to Holocaust remembrance and education.

Like many Jewish Americans, my husband Doug has learned the harrowing stories of his family members that perished in the Holocaust. Last year, he traveled to the town where some of them lived in what is now Poland, and heard stories of family members shot and others who were deported to an unknown fate. He walked through the old Jewish Quarter of Krakow. And he visited Auschwitz-Birkenau, and the gas chambers, to bear witness.

President Biden will deliver the keynote address at tomorrow's commemoration at the Capitol Visitors Center, along with Congressional leaders.

UPDATE: On May 3, President Biden issued A Proclamation on Days of Remembrance of the Victims of the Holocaust, 2024 declaring May 5 through May 12 as a week of observance of the Days of Remembrance.  The Proclamation says in part:

I often reflect on memories of sitting around our kitchen table where my father would educate my siblings and me about the horrors of the Holocaust.  Entire families wiped out.  Communities savagely destroyed.  Survivors left with memories and traumas that will never go away — even as the tattoos etched into their skin by the Nazis fade and the number of survivors dwindles.  My dad taught us that silence is complicity — a lesson I have passed down to my children and grandchildren by taking them to the Dachau concentration camp in Germany.

Recent Articles of Interest

 From SSRN:

• Caitlin Millat, Race, Religion, and the Antiparallel, (American Journal of Law and Equality, Arizona State University Sandra Day O'Connor College of Law Legal Studies Research Paper No. 4776907 (2024).
• Danny Li, The Comstock Act's Equal Protection Problem, (April 26, 2024).
• Lawrence B. Solum, Original Public Meaning, (Michigan State Law Review, Vol. 2023, No. 807).
• Liz Tobin-Tyler, Putting Your Money Where Your Mouth Is: Maternal Health Policy After Dobbs, (Seton Hall Law Review, Vol. 53, 2023).
• Carlo A. Pedrioli, In re Marriage Cases, Same-Sex Marriage, and the California Supreme Court as Critical Social Movement Ally, (33 S. Cal. Interdisc. L.J. 137 (2023)).
• Alberto Alemanno, Philanthropy’s Commitment With the Future, (in Futures Philanthropy: Aspirations in the 21st century. Anticipation for the common good, Copenhagen Institute for Future Studies and Philea, Brussels, March 2024).

From SSRN (Non-U.S. Law):

• Nicholas Stamates, The Legal Status of American Indians, South American Indians, and Alaska Natives under the Canon Law of the Catholic and Orthodox Churches as seen through Papal Bull, Missions, Indian Boarding Schools, the Amazonian Synod, and Orthodox Autocephaly, (Indigenous Peoples' Journal of Law, Culture & Resistance, UCLA School of Law, Vol 10. (Forthcoming)).
• Abubakar Yusuf Mamud, Ummah: a Holistic Framework for Preventing and Countering Violent Extremism in Nigeria, (March 16, 2024).
• Neil James Foster, Liability of a Bishop for Sexual Abuse Committed by Clergy: Bird v DP (A Pseudonym). (April 28, 2024).
• Tabrez Ebrahim, Islamic Intellectual Property, (Seton Hall Law Review, Vol. 54, No. 4, 2024).
• Craig B. Mousin, A Migrant 4 Life Journeys to the New Tower of Babel: Christianity and Immigration,  (Abrahamic Hospitality and Its Contemporary Implications, Ori Z. Soltes and Rachel Stern, eds., (NY: Fordham University Press, 2024)).
• Ebenezer Kojo Gyesi Mensah, Investigating International Criminal Law and Sovereignty Issues Surrounding the Prosecution of Heads of State for War Crimes and Genocide, (April 30, 2024).

From elsewhere:

• Special Issue: Theology and Jurisprudence, Australian Journal of Law & Religion, Volume 4 (2024).

White House Sends Greetings on Orthodox Christian Easter

The White House today issued a Statement from President Biden (full text) sending warm wishes from him and the First Lady to those celebrating Orthodox Christian Easter. The Statement says in part:

The Resurrection of Jesus Christ reminds us of God’s abundant love for us and the power of light over darkness. We join Orthodox Christians in giving thanks for these and other blessings and rededicate ourselves to caring for those most in need.

In this sacred season, we hold people who are suffering from war and persecution especially close to our hearts. We will continue to pray and work for peace and justice for all people.

Feds Sue Texas Correctional Authorities for Failing to Accommodate Employee's Religious Head Covering

The Justice Department today filed suit against the Texas Department of Criminal Justice alleging that it violated Title VII by failing to accommodate a clerical employee's religious practice of wearing a head covering pursuant to her Ifa faith. The complaint (full text) in United States v. Texas Department of Criminal Justice, (SD TX, filed 5/3/2024), alleges in part:

34. Though Spears identified her belief in the Ifa faith and her religious practice of wearing a head covering, TDCJ was not satisfied that her religious beliefs were sincere or should be accommodated. 

35. Instead, when Spears turned in her accommodation form, Fisk informed her that TDCJ would further research her religion and its practices. Spears questioned whether it was a normal practice to research religions. Specifically, she asked whether research would be done for more mainstream religions. Fisk indicated that it was not TDCJ’s normal practice.

 36. On October 15, 2019, Fisk conducted an internet search of the Ifa religion and practices and faxed the search results along with Spears’s accommodation request to Terry Bailey for her consideration. 

37. Then, on October 16, 2019, TDCJ further questioned the sincerity of Spears’s faith when Bailey mailed a letter demanding documentation or a statement from a religious institution pointing to the specific Ifa belief or doctrine that supported the necessity of Spears’s head covering. The letter also stated that TDCJ would not take any further action to review Spears’s accommodation request until the additional information was submitted.

The Department of Justice issued a press release announcing the filing of the lawsuit.

USCIRF Issues Annual Report on Countries Violating Religious Freedom

On Tuesday, the U.S. Commission on International Religious Freedom released its 96-page 2024 Annual Report (full text). It detail developments in 28 countries and makes additional policy recommendations as well. As summarized by the agency's press release announcing the Report:

In its 2024 Annual Report, USCIRF recommends 17 countries to the U.S. Department of State for designation as Countries of Particular Concern (CPCs) based on their governments engaging in or tolerating particularly severe violations of the right to freedom of religion or belief. These include 12 that the State Department designated as CPCs in December 2023: Burma, China, Cuba, Eritrea, Iran, Nicaragua, North Korea, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan—as well as five additional recommendations: Afghanistan, Azerbaijan, India, Nigeria, and Vietnam.

The 2024 Annual Report also recommends 11 countries for placement on the State Department’s Special Watch List (SWL) based on their governments’ perpetration or toleration of severe violations of religious freedom. These include one that the State Department placed on that list in December 2023: Algeria—as well as 10 additional recommendations: Egypt, Indonesia, Iraq, Kazakhstan, Kyrgyzstan, Malaysia, Sri Lanka, Syria, Turkey, and Uzbekistan. While the State Department included Vietnam on its SWL in December 2023, USCIRF believes the government of Vietnam’s violations rise to the level of CPC status. Additionally, USCIRF recommends the State Department add Kyrgyzstan to the SWL for the first time due to the Kyrgyz government’s heightened religious repression in 2023.

USCIRF further recommends to the State Department seven non-state actors for redesignation as Entities of Particular Concern (EPCs) for particularly severe religious freedom violations. The State Department designated all seven of these groups as EPCs in December 2023: al-Shabaab, Boko Haram, Hay’at Tahrir al-Sham (HTS), the Houthis, Islamic State Sahel Province (IS Sahel), Islamic State in West Africa Province (ISWAP) (also referred to as ISIS-West Africa), and Jamaat Nasr al-Islam wal Muslimin (JNIM).

Northern Ireland Appeals Court Rejects Challenge To Religious Education In Schools

In re an Application by JR87, (NI CA, April 30, 2024), is an appeal in a challenge to the legality of religious education and collective worship practices in schools in Northern Ireland. In the case, parents who are humanists and are not raising their daughter in any religious tradition object to the Christian religious education and collective worship in their daughter's school. Among other things, they rely on Article 9 of the European Convention on Human Rights (Freedom of thought, conscience and religion) and Article 2 of Protocol 1 to the Convention which provides in part:

Education that is provided, whether public or private, must respect parents' religious and philosophical convictions. But so long as the curriculum and tuition are objective and pluralistic, the fact that it may conflict with some parents' convictions is not a breach.

The Northern Ireland Court of Appeal said in part:

In contrast to the secular reform of the education system in England and Wales facilitated through the 1870 and 1902 Education Acts, the Irish churches retained their ties to the school system.  In Northern Ireland, the 1923 Education Act introduced by the first Belfast government maintained the influence of the main churches in our education system.

A hundred years later, the provision of mandatory Christian education as standard in controlled schools was challenged by way of judicial review in these proceedings.  In the court below the applicants contended that the mandatory Christian religious education (“RE”) and collective worship (“CW”) currently provided in controlled primary schools in Northern Ireland is contrary to the religious freedom protections guaranteed by the European Convention on Human Rights (“ECHR”)....

... [W]e uphold the trial judge’s finding that the curriculum at issue in the present case is not conveyed in an objective, critical and pluralistic manner.  However, we hold that no breach of A2P1 has been established because of the existence of the unqualified statutory right of the parents to have their child excused wholly or partly from attendance at religious education or collective worship, or both in accordance with their request.

The Court's Communications Office also issued a summary of the decision. Law & Religion UK reports on the case.

Today Is National Day of Prayer

Pursuant to 36 USC §119, President Biden has issued a Proclamation (full text) declaring today as this year's National Day of Prayer.  The Proclamation reads in part:

On this National Day of Prayer, we recognize the power of prayer to strengthen our spirits, draw us together, and create hope for a better tomorrow.

The right to practice our faiths freely and openly is enshrined in the Constitution and remains at the core of our American spirit.  For centuries, Americans of every religion and background have come together to lift up one another and our Nation in prayer.  Throughout America’s history, faith and prayer have helped fuel some of the greatest moral missions of our time — from the abolition of slavery to the fight for voting rights and the Civil Rights Movement.  Many of our Nation’s greatest leaders have been motivated by faith to push all of us toward a more perfect Union and to bend the arc of the moral universe toward justice....

This year, my prayer for our Nation is that we keep faith that our best days are ahead of us and continue to believe in honesty, decency, dignity, and respect.  May we see each other not as enemies but as fellow human beings, each made in the image of God and each precious in His sight.  May we leave no one behind, give everyone a fair shot, and give hate no safe harbor.  May we remember that nothing is beyond our capacity if we act together.

The non-governmental National Day of Prayer Task Force has scheduled a Prayer Broadcast for 8:00 PM this evening. 

Arizona Legislature Repeals 160-Year-Old Abortion Ban

Yesterday the Arizona legislature gave final passage to HB2677 (full text) which repeals Arizona's 160-year-old near-total abortion ban that, according to the state Supreme Court, came back into effect when Roe v. Wade was overruled. (See prior posting.) However, the repeal does not go into effect until 90 days after the end of the legislative session. Governor Katie Hobbs has said she will sign the bill. When the repeal becomes effective, Arizona's 15-week abortion ban will be effective.  In November, Arizona voters will vote on a referendum to protect the right to pre-viability abortions. The Hill reports on developments.

Kansas Legislature Overrides Veto of Bill Requiring Information on Patient's Reason for Seeking Abortion

On April 29, the Kansas legislature overrode Governor Laura Kelly's veto of House Bill 2749. (Full text of bill and veto message). The bill requires abortion providers to ask each patient which of 11 reasons was the most important factor in the patient's decision to seek an abortion.  Biannual reports that do not disclose the identity of patients or doctors involved are to be filed with the state. They are to tabulate the reasons given and also provide demographic information about patients. A public report on abortions performed in the state is then to be issued. In vetoing the bill, Governor Kelly called the bill "invasive and unnecessary". ADF issued a press release supporting the legislature's override.

Court Dismisses Suit Over Disclosure of Clergy-Penitent Conversation

In Stephens v. Metropolitan New York Synod of the Evangelical Lutheran Church in America, (Dutchess Cty. NY Sup. Ct., April 29, 2024), a New York state trial court dismissed a suit for breach of fiduciary duty, infliction of emotional distress, hostile work environment and defamation brought by an Episcopal clergyman, who was also on the Roster of Ministers of the Evangelical Lutheran Church. Plaintiff had sought out pastor Christopher Mietlowski for a confidential confessional conversation about an extramarital affair. Despite the assurance of confidentiality, Mietlowski disclosed the information to the bishop of the New York Synod of the ELCA who in turn disclosed the information to plaintiff's wife who was also a pastor. The bishop also disclosed the information to the Episcopal Church which suspended plaintiff's license to officiate. Subsequently, ELCA removed plaintiff from its roster of clergy.

The court held that even though New York has codified the clergy-penitent privilege, that provision does not give rise to a cause of action for breach of fiduciary duty when a conversation between a congregant and a member of the clergy is disclosed. The court also rejected plaintiff's claims growing out of his removal from the roster of ministers of the ELCA saying that this was an ecclesiastical decision about a minister's qualifications to serve which is beyond the power of civil courts to review.

President Declares May To Be Jewish American Heritage Month

On April 30, President Biden issued a Proclamation (full text) declaring May 2024 as Jewish American Heritage Month. The Proclamation reads in part:

This Jewish American Heritage Month, we honor Jewish Americans, who have never given up on the promise of our Nation.  We celebrate the contributions, culture, and values that they have passed down from generation to generation and that have shaped who we are as Americans.  We remember that the power lies within each of us to rise together against hate, to see each other as fellow human beings, and to ensure that the Jewish community is afforded the safety, security, and dignity they deserve as they continue to shine their light in America and around the world.

Accommodating Teacher's Anti-Transgender Beliefs Created Undue Hardship for School Under Title VII

In Kluge v. Brownsburg Community School Corporation, (SD IN, April 30, 2024), an Indiana federal district court in a 46-page opinion that sets out extensive factual background information, dismissed an orchestra teacher's Title VII claim that the school had failed to reasonably accommodate his religious objections to referring to transgender students by their preferred names and pronouns. The school had initially permitted the teacher to refer to students by their last names only, but later withdrew that accommodation and forced the teacher's resignation. A primary issue in the case was whether continuing to allow a last-names-only accommodation would create an "undue hardship" for the school under the Supreme Court's definition of that term in its 2023 decision in Groff v. DeJoy. Finding that it would, the court said in part:

BCSC's business is "educating all students," which it achieves by "fostering a learning environment of respect and affirmation."...  Part of that is BCSC's mission to "afford[] dignity and empathy toward transgender students."...  Parents, medical professionals, administrators, and many students all agree that pursuing that mission would require transgender students to be addressed by their preferred names and pronouns....

Lest there be any doubt about disruption, Mr. Kluge himself believed that the Last Names Only Accommodation would result in disruption and indeed was encouraged by it.  He explained to Dr. Daghe that far from resigning, he was "encouraged all the more to stay." ...  After all, he believed, his "persecution" was "a sign that [his] faith as witnessed by using last-names-only . . . was being effective."...  Faced with Mr. Kluge's own statements—"pleading" with the school to avoid going down the "transgender path," seeking to discuss with students their "eternal destination," and hoping to stay because his "persecution" surrounding the Last Names Only Accommodation was being "effective"—complaints from others were hardly necessary.  While the Last Names Only Accommodation might have been intended as neutral, it ultimately was perceived as intentional....

As the Supreme Court held in Groff, undue hardship is to be viewed within the context of a particular business, not a particular employee.  The Court compares the cost to BCSC's mission, not Mr. Kluge's.  BCSC could either support its transgender students in pursuit of its mission and comply with the law, or accede to Mr. Kluge's accommodation and risk harm to students and the learning environment and/or substantial and disruptive litigation.... The law of Title VII does not require BCSC to continue an accommodation that actually resulted in substantial student harm, and an unreasonable risk of liability, each sharply contradicting the school's legally entitled mission to foster a supportive environment for all.  The Last Names Only Accommodation was an undue burden to BCSC as a matter of law.....

Excluding Gender-Affirming Care from Governmental Insurance Coverage Violates Equal Protection

In Kadel v. Folwell, (4th Cir., April 29, 2024), the U.S. 4th Circuit Court of Appeals sitting en banc, in an 8-6 decision, held that an exclusion in North Carolina's state employee healthcare plan for treatment "in connection with sex changes or modifications" violates the equal protection clause. The majority held that "the coverage exclusions facially discriminate on the basis of sex and gender identity, and are not substantially related to an important government interest...." The majority held that the exclusion for "transexual surgery" in West Virginia's Medicaid program similarly violates the equal protection clause as well as the Medicaid Act. The majority in its 58-page opinion said in part:

[D]iscriminating on the basis of diagnosis is discriminating on the basis of gender identity and sex.  The coverage exclusions are therefore subject to intermediate scrutiny.  They cannot meet that heightened standard.

Judge Richardson, joined by Judges Wilkinson, Niemeyer, and Quattlebaum, and joined in part by Judges Agee and Rushing, said in part:

The Equal Protection Clause does not license judges to strike down any policy we disagree with.  It instead grants the states leeway to tailor policies to local circumstances, while providing a carefully calibrated remedy for truly illicit discrimination.  No such discrimination appears in these cases.  North Carolina and West Virginia do not target members of either sex or transgender individuals by excluding coverage for certain services from their policies.  They instead condition coverage on whether a patient has a qualifying diagnosis....

Judge Wilkinson filed a dissenting opinion, saying in part:

In the era of Roe, it was substantive due process. Now it is substantive equal protection. Make no mistake. The fundamental rights prong of equal protection is what is at play here, and while constitutionally mandating state-funded transgender rights will please some, it will politicize the courts in the eyes of all as assuredly as its substantive due process predecessor did....

Some States are reluctant to fund emerging treatments until the science can tell us more. Not only is the medical data conflicting, but there is a moral caution in this case as well. Self-righteous folly has long run through us all. The Tower of Babel toppled of its own hubristic weight. Yet still we moderns strive to bend nature to desire.

Judge Quattlebaum, joined by Judges Agee, Richardson and Rushing, filed a dissenting opinion, saying in part:

In order to conclude that no legitimate, non-discriminatory reasons support denying coverage for certain treatments of gender dysphoria, the majority abandons settled evidentiary principles. Properly accounting for the record, questions about the medical necessity and efficacy of such treatments linger. And those lingering questions support the states’ coverage decisions.

NPR reports on the decision.

Recent Articles of Interest

From SSRN:

• Mohammad Fadel, Sacrifice, Liberalism and the Qurʾan's Revisionist Reading of the Akeda: An Islamic Contribution to the Political Theology of Democracy, (Behind the Story: Ethical Readings of Qurʾānic Narratives, Studies in Islamic Ethics, Vol. 6 (Brill, 2024)).
• Nicholas Hatzis, Wearing Religious Symbols, (Ian Loveland (ed.) British and Canadian Public Law in Comparative Perspective (Hart 2021)).
• Mark Kende, The U.S. Supreme Court's Dobbs Abortion Decision: a Bitter Pill to Swallow, (Drake Law Review, Vol. 71, No. 1, 2024).
• Reva B. Siegel, The 'Levels of Generality' Game, or 'History and Tradition' as the Right’s Living Constitution, (Harvard Journal of Law and Public Policy, Vol. 47, 2024).
• Teri Dobbins Baxter, Child Sacrifices: The Precarity of Minors’ Autonomy and Bodily Integrity After Dobbs, (University of Pennsylvania Journal of Constitutional Law, Vol. 26, No. 4, 2024).
• Nicole Steitz, Brian G. Slocum & Kevin Tobia, The Broad Church of Modern Textualism, (Brooklyn Journal of Law and Policy, Forthcoming).

Arizona Governor Vetoes Bill That Would Have Required Transgender Individuals to Use Alternate Single Occupancy Showers in Public Schools

On April 23, Arizona Governor Katie Hobbs vetoed Arizona Senate bill 1182. (Full text of veto letter.) The bill, titled the "Arizona Accommodations for All Children Act" (full text) would have required public schools to provide single occupancy showers to transgender individuals who are unwilling to use multi-occupancy showers that correspond to their biological sex as determined at birth. In order to obtain the accommodation of a single occupancy shower, the individual would have been required to make a written request and to furnish satisfactory evidence of the person's sex. If that accommodation is refused, the person would have a cause of action against the public school. Conversely, any person who encounters a person of the opposite sex in a multi-occupancy shower room also has a cause of action against the school if a school employee or administrator gave the person permission to use the shower. In either case, the plaintiff could recover for psychological, emotional and physical harm.

New HIPPA Rules Protect Against Disclosure to Law Enforcement of Out-of-State Abortions

On April 22, the Department of Health and Human Services issued new rules under HIPPA to protect the privacy of reproductive health care.  The rules were adopted in a 291-page Release (full text) (press release). The rules are designed to protect women (and those who assist them) who travel out of state for an abortion that is not legal in their state of residence. A Fact Sheet issued by the Department of Health and Human Services summarizes the new rules, saying in part:

The Final Rule strengthens privacy protections by prohibiting the use or disclosure of protected health information (PHI) by a covered health care provider, health plan, or health care clearinghouse—or their business associate—for either of the following activities:

To conduct a criminal, civil, or administrative investigation into or impose criminal, civil, or administrative liability on any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care, where such health care is lawful under the circumstances in which it is provided.

The identification of any person for the purpose of conducting such investigation or imposing such liability.

... [T]he prohibition applies where...:

The reproductive health care is lawful under the law of the state in which such health care is provided under the circumstances in which it is provided....

The reproductive health care is protected, required, or authorized by Federal law, including the U.S. Constitution, regardless of the state in which such health care is provided....

19th News reports on the new rules. [Thanks to Scott Mange for the lead.]

Sikh Court Opens in Britain

Religion Media Center reports that in England, the world's first Sikh court opened last Saturday. However, unlike Muslim and Jewish religious courts, Sikhism does not have its own legal code.

 According to the report:

The court [in London] was set up by Sikh lawyers who felt that secular judges lacked the religious and cultural expertise to deal with disputes between Sikhs. It will operate as an alternative forum for dispute resolution for UK-based Sikhs involved in family and civil disputes....

[Baldip Singh] aid its purpose would be “to assist Sikh families in their time of need when dealing with conflict and disputes in line with Sikh principles”....

[The court will] work within the remit of the Arbitration Act (1996), under which anyone — legally qualified or not — can sit as arbitrator so long as both parties agree to submit to the same set of rules....

At the first instance, Sikh court “magistrates” will mediate in disputes to try to negotiate a settlement, as well as directing court users to courses that can help them work on issues that have contributed to the dispute. These courses, developed with Sikh charities, cover low-level domestic violence, anger management, gambling and substance misuse and are available in Punjabi as well as English....

Florida Authorizes Volunteer Chaplains in Schools

On April 18, Florida Governor Ron DeSantis signed HB 931. The bill (full text) allows school districts to authorize volunteer school chaplains to provide support, services, and programs to students. Schools must require parental consent for students to avail themselves of chaplain's support, services or programs. Liberty Counsel issued a press release announcing the signing of the bill.

Qualified Immunity Granted in Denial of Religious Exemption from Vaccine Mandate

In Babiy v. Oregon Health and Science University, (D OR, April 22, 2024), an Oregon federal district court dismissed claims for damages brought against a medical school and involved individuals by a patient access specialist who was denied a religious exemption from its Covid vaccine mandate. The University's policy was to deny religious exemptions where their claim was based solely on fetal cell concerns. The court said in part:

... Plaintiff has failed to prove that it was clearly established at the relevant time that the Doe Defendants were barred from (1) attempting to distinguish between religious and secular objections to a vaccine or (2) in that effort, denying exemptions to a state-mandated vaccine mandate to employees who expressed ostensibly religious objections to the use of fetal cells in the development of the vaccine. Accordingly, the Court grants Defendants’ Motion and dismisses Plaintiff's second claim under the doctrine of qualified immunity to the extent that Plaintiff seeks damages. The Court, however, denies Defendants’ Motion to the extent that Plaintiff seeks declaratory or injunctive relief under her first amendment claim.