Eminent Domain Violated Rights of Chabad

In Chabad Lubavitch of the Beaches, Inc. v. Incorporated Village of  Atlantic Beach, (ED NY, Sept. 6, 2022), a New York federal district court granted a preliminary injunction, concluding that an attempt to acquire the property of a Jewish religious group by eminent domain likely violated the group's 1st Amendment free exercise rights. Chabad acquired the property in order to build a center on it. Eminent domain proceedings were initiated shortly after Chabad held a Menorah lighting ceremony on the property. The court explained:

[T]he Village’s acquisition decision was made in a manner intolerant of Chabad’s members’ religious beliefs and which would restrict Chabad’s practices because of its religious nature. Thus, the Village’s acquisition decision was targeted and not done neutrally, thereby requiring the Court to apply strict scrutiny in deciding whether that decision is constitutionally permissible. 

... The Village never inquired from the Property’s prior owner whether he was interested in selling the Property ... notwithstanding it being adjacent to and/or in very close proximity to Village-owned and controlled properties and it having sat vacant for three years, with a prominent “For Sale” sign having been erected in front of the Property for the last two of those three years.... Instead, for vague reasons, not strongly supported by direct evidence ... the Village’s apparent urgency to acquire the Properties intensified during the same time when Chabad purchased the Property....

Further, the several anti-Semitic comments posted to the FB Group page after the January 10 open meeting, i.e., community member comments, add to the suspicion caused by the timing of events and call into question the Village’s stated motivation for acquiring the Property by eminent domain....  [O]ne of the Village Trustees, was an administrator/monitor of the FB Group; thus, it is difficult not to conclude that at least one member of the Village Board was aware of several strong opponents to Chabad’s presence in the Village, based upon impermissible religious animus.

California Assisted Suicide Law Violates Free Speech rights Of Objecting Doctors

In Christian Medical & Dental Association v. Bonta, (CD CA, Sept. 2, 2022), a California federal district court held likely unconstitutional a provision in the California End of Life Option Act which requires doctors who refuse on conscience, moral or ethical grounds to participate in procedures set out by the act to nevertheless document in a patient's record the date of the patient's request for an aid-in-dying drug. This notation serves as one of two required requests by a patient before the patient may obtain the drug. The court rejected the argument that this violates the free exercise rights of medical providers who object on religious grounds, saying in part:

The court recognizes that Plaintiffs have sincerely held religious beliefs, and that compliance with the documentation requirements contained in Section 443.14(e)(2) infringes on the free exercise of their religion. However, under clearly established doctrine in Smith, Lukumi, and Fulton, strict scrutiny does not apply to a neutral and generally applicable law, like the Act here.

The court also rejected equal protection and due process challenges. However, the court did conclude that plaintiffs are likely to succeed on their free speech challenges to the requirement, saying in part:

[T]he documentation requirement imposed by the Act “plainly alters the content” of non-participating health care providers’ speech.... The ultimate outcome of this requirement is that non-participating providers are compelled to participate in the Act through this documentation requirement, despite their objections to assisted suicide.

The court issued a preliminary injunction barring state enforcement of the requirement against objecting health care providers. ADF issued a press release announcing the decision.

Qualified Immunity Denied In Muslim Woman's Challenge To Jail's Booking Photo Policy

In Chaaban v. City of Detroit, Michigan Department of Corrections, (ED MI, Sept. 2, 2022), a Michigan federal district court denied a motion in a RLUIPA case for reconsideration of the denial of qualified immunity to corrections officials who forced a Muslim woman to remove her hijab for a booking photograph. The court concluded that it was premature to grant immunity on a motion to dismiss, saying in part:

[D]iscovery is needed to determine “whether the state of the law . . . gave [the defendants] fair warning that [the plaintiff’s] alleged treatment was unconstitutional.”... Plaintiff plausibly alleged in her complaint that prison officers threatened to make Plaintiff “sleep on the concrete floor of the booking cell without a bed, blanket, mattress or pillow” if she did not remove her hijab.... Taking this and other allegations in Plaintiff’s complaint as true ... the Court properly determined that qualified immunity is not appropriate at this time.

Recent Articles of Interest

From SSRN:

• Aviam Soifer, Remembrance, Group Gripes, and Legal Frictions: Rule of Law or Awful Lore?, (Touro Law Review, Vol. 37, No. 4, 2022).
• Louis E. Wolcher, Ronald Dworkin's Wittgenstein, (Wittgenstein and Other Philosophers, edited by A. Khani & G. Kemp (Routledge), Forthcoming).
• Jeffrey R. Baker, A Sermon on the Law: The Jurisprudence of Love,  (August 26, 2022).
• Antony Kolenc, 'No Help You God' - Religion, the Courtroom, and a Proposal to Amend the Federal Rules of Evidence, (Mississippi Law Journal, Vol. 91, No. 1, 2022).

From SSRN (Islamic Law):

• Hedayat Aly Heikal, Editor's Introduction to the Special Issue,  (Journal of Islamic Law, Vol. 3, No. 1 (2022).
• Masoud Noori & Zahra Azhar, Shīʿī Ideas of Slavery: A Study of Iran in the Qājar Era Before and After the Constitutional Revolution,  Journal of Islamic Law, Vol. 3, No. 1 (2022)).
• Adnan Zulfiqar, The Immorality of Incarceration: Between Jāvēd Aḥmad Ghāmidī and Angela Y. Davis, (Journal of Islamic Law, Vol. 3, No. 1 (2022).
• Dawood Ashraf, Digital Finance and Artificial Intelligence: Islamic Finance Challenges and Prospects, (August 24, 2021).

From SmartCILP:

• Wadie E. Said, Material Support Prosecutions and Their Inherent Selectivity, 27 Michigan Journal of Race & Law 163-170 (2021).
• Ramzi Kassem, American Informant, 27 Michigan Journal of Race & Law 171-192 (2021).
• Khaled Ali Beydoun, The Ban and Its Enduring Bandwidth, 27 Michigan Journal of Race & Law 193-202 (2021).
• Asma T. Uddin, A Religious Double Standard: Post-9/11 Challenges to Muslims' Religious Land Use, 27 Michigan Journal of Race & Law 223-232 (2021).

UPDATE: Journal of Law & Religion, Volume 37, Issue 2, May 2022, is also available for a limited time online without charge.

Church's Attempt To Separate From Parent To Avoid Receivership Was Fraudulent

In Pentecostal Church of God v. City of Refuge Ministries Toledo Ohio, (OH Com. Pl., Aug. 15, 2022), an Ohio state trial court held that the transfer of a Toledo, Ohio church building by a quitclaim deed to City of Refuge, a separate non-profit entity, was fraudulent.  The court concluded that Toledo congregation was a satellite church of Detroit Pentecostal Church of God, and the members signing the deed had no authority to transfer the property. The transfer was made in order to attempt to separate the Toledo congregation from the receivership imposed on the Detroit congregation. The court said in part:

Here, the dispute is over a quit-claim deed that transferred property held by PCG to City of Refuge in 2018. Deciding if that deed was fraudulently transferred from PCG to City of Refuge will not invade upon protected ecclesiastical matters.....

[T]his Court finds that the deed executed in 2018, conveying the contested property from PCG to City of Refuge Ministries Toledo, Ohio as void, ab initio. Further, the title to said property is vested to PCG alone and the defendant, City of Refuge does not have any estate, right, title, or interest in the property.

UN Issues Report On Human Rights Concerns In China's Uyghur Region

On Wednesday, the United Nations Human Rights Office issued a report on human rights concerns in China's Xinjiang Uyghur Autonomous Region. (Full text of report.) A portion of the report focuses on restrictions on religious expression, and says in part:

The “Strike Hard” campaign has led to the adoption or amendment of various legal instruments to further tighten the regulation of religion.... “[E]xtremism” is defined broadly, while the legal instruments include a list of “primary expressions of extremism” that have in practice been accompanied by lists of “signs” of “religious extremism” to assist officials and the general public in identifying “extremist” behaviour.... These ... include conduct that may in the circumstances be of legitimate concern, such as “inciting ‘Jihad’, advocating and carrying out violent terrorist activities”, but range far more widely, encompassing an exceptionally broad range of acts that in themselves constitute exercise of protected fundamental freedoms connected to the enjoyment of cultural and religious life by these communities. These include wearing hijabs and “abnormal” beards; expanding the scope of “Halal”; closing restaurants during Ramadan; participating in cross-county religious activities “without valid reason”; using Virtual Private Networks (VPNs), social media and Internet to teach scriptures and preach; and giving one’s child a Muslim name....

Such exceptionally broad interpretations of “extremism”, often explicitly targeting standard tenets of Islamic religion and practice, in effect renders virtually all such conduct in potential breach of the regulation of religion....  An environment is thus created in which religious or cultural practice or expression is conflated with “extremism” ....

Alongside the increasing restrictions on expressions of Muslim religious practice are recurring reports of the destruction of Islamic religious sites, such as mosques, shrines and cemeteries....

China filed a 122-page response (full text) to the report contending that China is fighting terrorism and extremism. It says in part:

Religious extremists advocate extremist ideologies, incite hatred against other religions and "heretics", and undermine Xinjiang's religious harmony and ethnic unity.

AP reports on these developments.

District Court: Public Accommodation Law Violates Wedding Photographer's Free Speech Rights

In Chelsey Nelson Photography, LLC v. Louisville/ Jefferson County, (WD KY, Aug. 30, 2022), a Kentucky federal district court held that Louisville's public accommodation ordinance violates the free speech rights of a Christian wedding photographer who has moral and religious objections to same-sex marriages. The court said in part:

Courts across the country have addressed whether bakers, florists, website designers, and other creative professionals must either provide their services for weddings that violate their beliefs or else abstain entirely from the wedding business. And those courts’ disagreement on whether this amounts to prohibited discrimination or protected dissent is what the U.S. Supreme Court has set out to resolve during its upcoming term....

This is a real conflict between nondiscrimination and speech that cannot be wished away: compelling access for all necessarily clashes with the liberty of some. The City contends that Nelson’s speech demeans same-sex couples, while Nelson says the City’s Ordinance demeans her speech....

The First Amendment’s protections for religious exercise ... are unlikely to help those in Nelson’s position: at least as currently construed, that aspect of the Constitution does not shield people whose sincerely held religious beliefs conflict with generally applicable laws....

But the government’s authority over public accommodations does not extend to “abridging the freedom of speech.”...

So although Louisville may require restaurants and hotels and stores to provide services regardless of the proprietors’ views or their customers’ legal status, the government may not force singers or writers or photographers to articulate messages they don’t support.

The court also concluded that the ordinance violates the Kentucky Religious Freedom Restoration Act. [Thanks to Thomas Rutledge for the lead.]

Church Autonomy Doctrine Bars Catholic High School Teacher's Suit Against Archdiocese

In Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Sup. Ct., Aug. 31, 2022), the Indiana Supreme Court held that the church autonomy doctrine bars a suit by a former Catholic school teacher against the Catholic Archdiocese for interfering with his employment contract with a Catholic high school. The suit alleges that the Archdiocese pressured the school to fire plaintiff because he had entered a same-sex marriage. Citing a 2003 decision, the court said in part:

[U]nder the church-autonomy doctrine a civil court may not (1) penalize via tort law (2) a communication or coordination among church officials or members (3) on a matter of internal church policy or administration that (4) does not culminate in a criminal act.

Becket issued a press release announcing the decision.

Suit Contends Indiana Abortion Restrictions Violate State Constitution

Suit was filed Tuesday in an Indiana state trial court challenging the state's recently-enacted law that bans abortions, with exceptions during early pregnancy to protect the life or to prevent serious health risk to the mother, in cases if lethal fetal anomaly, and in cases of rape or incest. Also all abortions are required to be performed in hospitals or hospital-owned outpatient surgical centers. The complaint (full text) in Planned Parenthood Great Northwest v. Members of the Medical Licensing Board of Indiana, (IN Cir. Ct., filed 8/3-/2022), contends in part:

S.B. 1’s total abortion ban strips away the fundamental rights of people seeking abortion care in Indiana in violation of the State Constitution. It will infringe on Hoosiers’ right to privacy, violate Indiana’s guarantee of equal privileges and immunities, and violate the Constitution’s due course of law clause through its unconstitutionally vague language.

Courthouse News Service reports on the lawsuit.

Nurse Sues Clinic For Violating State Conscience Protections

Suit was filed yesterday in a Virginia state court by a Catholic nurse practitioner who was fired by a CVS Minute Clinic after she insisted that, for religious reasons, she would not provide or facilitate the use of hormonal contraceptives, Plan B and Ella which she considers abortifacients. For three years, the clinic had accommodated her religious beliefs, but it then changed its policy and refused to do so.  The complaint (full text) in Casey v. MinuteClinic Diagnostic of Virginia, LLC, (VA Cir. Ct., filed 8/31/2021) challenges her firing as a violation of Va. Code § 18.2-75 which provides that:

any person who shall state in writing an objection to any abortion or all abortions on personal, ethical, moral or religious grounds shall not be required to participate in procedures which will result in such abortion.

ADF issued a press release announcing the filing of the lawsuit.

Michigan Abortion Rights Amendment Faces Possible Ballot Exclusion Because of Typographical Formatting Errors

Earlier today, the Michigan Board of State Canvassers deadlocked 2-2, along party lines, in its vote on approving for inclusion on the November ballot an abortion rights state constitutional amendment. As reported by the Detroit Free Press, while backers had obtained far more than the minimum number of petition signatures need for inclusion on the ballot, challengers focused on the formatting of the text of the proposed amendment on the petition which erroneously ran several words together so that there were no spaces between the words. The Board of State Canvassers staff report said in part:

The Michigan Constitution of 1963 requires that the “petition shall include the full text of the proposed amendment”....

The RFFA petition includes the same letters, arranged in the same order, as the petition conditionally approved at the March 23rd Board meeting... Certain portions of the petition have smaller spaces between words; the spacing between words in some instances appears similar to the spacing between letters within words. The Michigan Election Law is silent on the amount of space that must be between letters and words in a petition.

Challengers argued that because of these typographical errors, the petitions do not contain the full text of the proposed amendment.

Under MCL §168.479, a decision of the Board of State Canvassers may be challenged by a petition filed with the state Supreme Court within 7 days of the decision. The group sponsoring the amendment, Reproductive Freedom For All, has already announced that it will appeal to the Michigan Supreme Court.

Another Lawsuit Over Touro Synagogue Dismissed On A Technicality

Providence Journal reports on the latest legal scuffle over the historic Touro Synagogue which is owned by New York's Shearith Israel congregation, but which has been the home of Rhode Island-based Congregation Jeshuat Israel. (See prior related posting.) Shearith Israel had filed an action to evict Jeshuat Israel, though Shearith Israel says it was merely trying to obtain more transparency and two seats on Jeshuat Israel's 15-person board. A Rhode Island state trial court judge seized on a technicality to dismiss the eviction action. Judge Colleen Hastings concluded in an Aug. 29 decision that the eviction notice ordered Jeshuat Israel to vacate the premises on January 31, the last day of its lease, while it should have ordered it to vacate on February 1, the day after the lease expired. Apparently this latest controversy arose when the New York congregation discovered that a tombstone had been erected in the Rhode Island synagogue's cemetery for New York businessman, diplomat and philanthropist John Loeb, though Loeb is still alive. Loeb contributed $12 million for the building of the visitor center at Touro Synagogue.

Religious Discrimination Claims Against Child Protective Services Meet Procedural Hurdles

In Gautreaux v. Masters, (WD TX, Aug. 29, 2022), a Texas federal magistrate judge recommended that the court dismiss some or all of the free exercise and due process claims brought by foster parents who were accused by the Texas Department of Family and Protective Services (DFPS) of child abuse. The opinion describes plaintiffs' allegations:

[DFPS] asked the couple to identify their religion during the application process, and they identified themselves as practicing members of the Church of Jesus Christ of Latterday Saints.... Gautreaux alleges that DFPS demonstrated "hostility toward the Gautreauxes' religion" at their initial interview, while their follow-up interview "exclusively concerned the Gautreauxes' religious practices and beliefs."...

... DFPS informed Gautreaux that the department had found there was "reason to believe" she had committed the alleged abuse, resulting in Gautreaux being placed on the DFPS central registry "as a child abuser." ... Gautreaux alleges that DFPS's decision was motivated by religious "animus" and that there was no evidence of abuse to support the finding....

Gautreaux alleges that she is unable to practice her religion as a result of her placement on the DFPS central registry. Specifically, Gautreaux alleges that she cannot participate in her "calling" - an assignment made by Church leaders - which is to "teach singing to children in her local church."

In a lengthy opinion, the Magistrate Judge recommended either that all the claims be dismissed under the Younger abstention doctrine, or alternatively that most of plaintiffs' free exercise claims be dismissed because of 11th Amendment sovereign immunity. Under the alternative recommendation, the court could move ahead on  claims challenging DFPS's policies of considering religious beliefs and practices as a concern in abuse investigations and its disregarding of inconsistent court rulings.

7th Circuit: Plaintiffs Failed To Show Facts Supporting Free Exercise Objections To COVID Vaccine Mandate

In Lukaszczyk v. Cook County, (7th Cir., Aug. 29, 2022), the U.S. 7th Circuit Court of Appeals, ruling on three separate district court cases, refused to order preliminary injunctions against local and state COVID vaccine mandates.  The court said in part:

The plaintiffs argue the mandates violate their constitutional rights to substantive due process, procedural due process, and the free exercise of religion. They also contend the mandates violate Illinois state law. Although the plaintiffs could have presented some forceful legal arguments, they have failed to develop factual records to support their claims. Because the plaintiffs have not shown a likelihood of success on the merits, we affirm the decisions of the district judges....

Discussing plaintiffs' Free Exercise claims, the court said in part: 

[I]f these assertions have merit, there is no record evidence to support them. The plaintiffs should have gathered facts and created a record detailing any wrongful denials of requests for religious exemptions. Instead, they made a facial challenge, which ignored the text of the policy’s religious exemption and the status of the plaintiffs’ exemption requests. This does not show a violation of their right to freely exercise their religions.

9th Circuit: High School Must Recognize Fellowship of Christian Athletes

In Fellowship of Christian Athletes v. San Jose Unified School District Board of Education, (9th Cir., Aug. 29. 2022), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, ordered reinstatement of the Fellowship of Christian Athletes as an official student club at San Jose high schools.  The majority said in part:

This case pits two competing values that we cherish as a nation: the principle of non-discrimination on the one hand, and the First Amendment’s protection of free exercise of religion and free speech on the other hand.

The Fellowship of Christian Athletes (FCA) requires students serving in leadership roles to abide by a Statement of Faith, which includes the belief that sexual relations should be limited within the context of a marriage between a man and a woman. The San Jose Unified School District ... revoked FCA’s status as an official student club at its high schools, claiming that FCA’s religious pledge requirement violates the School District’s non-discrimination policy.

... Under the First Amendment, our government must be scrupulously neutral when it comes to religion: It cannot treat religious groups worse than comparable secular ones. But the School District did just that.

The School District engaged in selective enforcement of its own non-discrimination policy, penalizing FCA while looking the other way with other student groups. For example, the School District blessed student clubs whose constitutions limited membership based on gender identity or ethnicity, despite the school’s policies barring such restricted membership. The government cannot set double standards to the detriment of religious groups only.

Judge Lee filed a concurring opinion, saying in part:

One schoolteacher called the Fellowship of Christian Athletes’ (FCA) beliefs “bullshit” and sought to ban it from campus. Another described evangelical Christians as “charlatans” who perpetuate “darkness” and “ignorance.”...

This is not, to put it mildly, neutral treatment of religion. More than a whiff, a stench of animus against the students’ religious beliefs pervades the Pioneer High School campus. I write separately to highlight the depth of that animus and explain why it is yet another reason why the School District violated the Free Exercise Clause.

Judge Christen dissented, saying in part:

My colleagues are correct that the competing values at issue in this case are cherished by our nation and enshrined in our Constitution. The plaintiffs will surely have their day in court for their claims of past harm. Once they do, the court will have to consider both the plaintiffs’ rights and the rights of those they would exclude. Notably, the majority offers no limiting principle to the permission it grants allowing one club to discriminate. In the meantime, we are not free to contort our standing jurisprudence in order to prematurely reach the merits and we ought not do so in a case of this magnitude before the record has been developed and tested.

NYC Vaccine Mandate Upheld

In Kane v. DeBlasio, (SD NY, Aug. 26, 2022), a New York federal district court rejected a challenge by New York City teachers, administrators and staff to New York City's public employee COVID vaccine mandate. They claimed the mandate violates their 1st and 14th amendment rights.  Discussing plaintiffs' free exercise claim, the court said in part:

The Second Circuit has already found that “[t]he Vaccine Mandate, in all its iterations, is neutral and generally applicable.”...

Ignoring the fact that the pandemic has claimed the lives of more than a million people in the United States, plaintiffs take the bold position that the Mandate has the “express purpose of inflicting special disability against minority religious viewpoints,” ... rather than its obvious and explicit goals to ... “potentially save lives, protect public health, and promote public safety.”...

Plaintiffs’ arguments that the Vaccine Mandate is not generally applicable again rely on arguments that the Second Circuit already rejected. 

Christian Healthcare Organization Sues Over Michigan Non-Discrimination Law

Suit was filed yesterday in a Michigan federal district court by a faith-based healthcare organization contending that Michigan's employment discrimination law violates its free exercise, free speech and due process rights. The 73-page complaint (full text) in Christian Healthcare Centers, Inc. v. Nessel, (WD MI, filed 8/29/2022), contends in part:

Under the guise of stopping discrimination, the law discriminates against religious organizations, requiring them to forfeit their religious character and hire people who do not share their faith. That same law also forces Christian Healthcare to prescribe cross-sex hormones and refer to patients in communications and medical records according to their stated gender identity, rather than their biological sex. All of this violates Christian Healthcare’s religious convictions. In effect, the law requires Christian Healthcare to check its religious faith at the clinic door—the very faith that motivates the clinic to open its doors to help those in need....

290. Michigan’s laws do not contain a religious exemption for religious entities like Christian Healthcare.

291. Michigan’s Employment Clause allows employers to apply to the Commission for an exemption on the basis that religion is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the business or enterprise. MCL 37.2208; MDCR Rule 37.25(1)....

297. Because Christian Healthcare requires all employees to affirm and live in accordance with its Religious Statements, which prohibit same-sex relationships and expressing a transgender identity, it would need a BFOQ exemption from discrimination on the basis sexual orientation, gender identity, and religion for every one of its employees.

ADF issued a press release announcing the filing of the lawsuit.

Yeshiva University Asks Supreme Court For Stay While State Court Ruling On Recognizing LGBTQ Group Is Appealed

Yesterday, an emergency Application for a Stay Pending Appellate Review (full text) was filed in Yeshiva University v. YU Pride Alliance, (Sup. Ct., filed 8/29/2022). In the case,  a New York state trial court held that New York City's public accommodation law requires Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. (See prior posting.) State appellate courts refused to stay the ruling. The petition contends that Yeshiva University is likely to succeed on its contention that forcing it to recognize the group violates the University's free exercise rights and the principles of church autonomy. The filing asks that alternatively it be treated as a petition for certiorari. Becket issued a press release announcing the filing of the Application.

RFRA Defense Cannot Be Decided On Pre-Trial Motion

In United States v. Skeet, (D NM, Aug. 26, 2022), a New Mexico federal district court held that defendant, a member of the Navajo nation, must assert as a defense at trial rather than in a pre-trial motion, the contention that the Migratory Bird Treaty Act and the Bald and Gold Eagle Protection Act violate his rights under the Religious Freedom Restoration Act. The court said in part:

[B]ecause Mr. Skeet’s RFRA defense implicates primarily factual rather than legal issues, the Court finds that this defense is “territory reserved to the jury as the ultimate finder of fact in our criminal justice system.” ... Additionally, because the RFRA defense goes to the ultimate issue of Mr. Skeet’s guilt, it would require a trial on the merits of the case—a prospect that is proscribed by Rule 12(b)(1) and that disserves judicial economy.... Nevertheless, Mr. Skeet is welcome to assert a RFRA defense at trial.

Marine Corps Enjoined From Discharging Religious Objectors To COVID Vaccination

In Colonel Financial Management Officer v. Austin, (MD FL, Aug. 18, 2022), a Florida federal district court certified as a class all Marines who have a sincere religious objection to COVID vaccination and whose request for a religious accommodation has been (or will  be) denied on appeal. According to the court:

The Marine Corps has granted only eleven accommodations, less than three-tenths of a percent (0.295%) of the 3,733 applications. The record presents no successful applicant other than a few who are due for retirement and prompt separation.

The court found "a systemic failure by the Marine Corps to satisfy RFRA." It said in part:

Notwithstanding a chaplain's affirmation, the Marine Corps rejects as insubstantial any religious objection grounded in the vaccine's connection to aborted fetal tissue because "fetal stem cells are neither used in the manufacture of the Pfizer COVID-19 vaccine nor are they present in the vaccine itself." This "finding," a unilateral lay declaration about a much discussed and much-debated topic, says nothing about the use of aborted fetal cells in the development of the vaccine and this finding says nothing about (and can say nothing about) the theological consequences of that use or about either moral or factual uncertainty. The "finding" says nothing about the religious concepts of, for example, accepting a personal benefit from evil, assisting someone in profiting from evil, cooperating in evil, appropriation of evil, de-sensitization to evil, moral contamination by intimacy with evil, ratification of evil, complicity with evil, or other considerations undoubtedly familiar to a theologian and likely familiar to a thoughtful and religious lay person who has contemplated evil.

The court issued a preliminary injunction against enforcement of the vaccine mandate against class members, or discharge or harassment of them.