Recent Articles of Interest

 From SSRN:

• Russell G. Pearce & Laynie Soloman, ’Nothing About Us Without Us’: Toward a Liberatory Heterodox Halakha, (Forthcoming, 37 Touro L. Rev. 1769-1835, 2022).
• Matthew Goldammer, Protecting Church Autonomy in the Twenty-First Century: A Defense of the Compulsory Deference Approach for Church Property Litigation, (Notre Dame Journal of Law, Ethics and Public Policy, Forthcoming).
• Giancarlo Anello, Mohamed A. Arafa & Sergio Alberto Gramitto Ricci, Sacred Corporate Law, (Seattle University Law Review, Vol. 45, 2021).
• Ido Katri, The Perils of Gender Self-Determination- Global Shifts in Sex Reclassification Law and Policy, (American Journal of Comparative Law (Forthcoming)).

From SmartCILP and elsewhere:

• Steven K. Green, The Supreme Court's Ahistorical Religion Clause Historicism, 73 Baylor Law Review 505-561 (2021).
• William Thomas Worster, The Human Rights Obligations of the Holy See under the Convention on the Rights of the Child, 31 Duke Journal of Comparative and International Law 351-424 (2021).
• Australian Journal of Law & Religion, Volume 1 (2022).

5th Circuit Approves Injunction Shielding Religious Organizations From Mandate On Transgender Medical Care

In Franciscan Alliance, Inc. v. Becerra, (5th Cir., Aug. 26, 2022), the U.S. 5th Circuit Court of Appeals, invoking RFRA, upheld a Texas federal district court's issuance of a permanent injunction barring the government from interpreting or enforcing provisions of the Affordable Care Act to require religious organizations, in violation of their religious beliefs, to perform or provide insurance coverage for gender-reassignment surgeries or abortions. At issue is the interpretation of the ACA's ban on discrimination on the basis of sex. The court however held that an alternative claim based on the Administrative Procedure Act was moot. Becket issued a press release announcing the decision.

California Must Allow Churches To Opt Out Of Abortion Coverage In Their Health Care Plans

In Foothill Church v. Watanabe, (ED CA, Aug. 25, 2022), a California federal district court held that the California Department of Managed Health Care (DMHC) should have taken steps so that objecting churches could be exempt from the Department's requirement that health insurance policies cover abortion services. DMHC argued that only health care plans are subject to its regulation, so exemptions will be granted only to plans, not to employers. Subjecting plaintiffs' Free Exercise claim to strict scrutiny because the DMHC rule is subject to a system of individual exemptions and thus is not "generally applicable," the court said in part:

[T]he court assumes without deciding that the Director’s understanding of the scope of her regulatory authority, that she is limited to regulating health plans, is correct. Nonetheless, nothing in the statutory text explicitly precludes her from fielding requests for exemptions from religious claimants. Likewise, nothing appears to preclude the Director from directing the religious claimant’s plan to submit a revised evidence of coverage document comporting with the religious claimant’s belief to the DMHC for approval. The Director’s authority to give orders to a plan does not foreclose the authority to consider requests for those orders from others. In the end, the Director is still regulating the plan.

... The Director’s denial of the Churches’ request for exceptions to accommodate their religious beliefs, based solely on the fact that those requests did not originate with a plan, was not narrowly tailored to serve a compelling interest.

ADF issued a press release announcing the decision.

8th Circuit Upholds Injunction On Gender Transition Procedures Ban

In Brandt v. Rutledge, (8th Cir., Aug. 25, 2022), the U.S. 8th Circuit Court of Appeals affirmed an Arkansas district court's grant of a preliminary injunction against enforcement of Arkansas' ban on healthcare professionals providing gender transition procedures to anyone under 18, or referring minors for such procedures. Finding that the law violates the Equal Protection Clause, the court said in part:

[U]nder the Act, medical procedures that are permitted for a minor of one sex are prohibited for a minor of another sex. A minor born as a male may be prescribed testosterone or have breast tissue surgically removed, for example, but a minor born as a female is not permitted to seek the same medical treatment. Because the minor’s sex at birth determines whether or not the minor can receive certain types of medical care under the law, Act 626 discriminates on the basis of sex.

Arkansas’s characterization of the Act as creating a distinction on the basis of medical procedure rather than sex is unpersuasive.

Arkansas Times reports on the decision.

Sikh Marine Recruits Lose Bid For Turbans and Unshorn Hair During Recruit Training

In Toor v. Berger, (D DC, Aug. 24, 2022), the D.C. federal district court refused to grant a preliminary injunction to three Sikh Marine recruits who wanted to prevent enforcement of the Marine's uniform and grooming policies during recruit training while their case continues to be litigated. Sikh religious beliefs require plaintiffs to maintain an unshorn beard and hair, wear a turban and wear other religious items. Plaintiffs contend that denying accommodation of their religious practices violates RFRA, the Free Exercise Clause and the Equal Protection Clause. The court held that even if plaintiffs have shown a likelihood of success on the merits and irreparable injury, the balance of equities and the overall public interest favor the military at this preliminary stage of proceedings. The court said in part:

The Marines have thus "credibly alleged" that "training in [the] manner" that would be required by the requested injunction will "pose a serious threat to national security" by disrupting defendant's well established method of transforming recruits through the discipline of uniformity.

Court Enjoins Idaho Abortion Ban When It Conflicts With Federal Emergency Treatment Requirement

In United States v. State of Idaho, (D ID, Aug. 24, 2022), an Idaho federal district court enjoined the state of Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act.  The court said in part:

[T]he State of Idaho, including all of its officers, employees, and agents, are prohibited from initiating any criminal prosecution against, attempting to suspend or revoke the professional license of, or seeking to impose any other form of liability on, any medical provider or hospital based on their performance of conduct that (1) is defined as an “abortion” under Idaho Code § 18-604(1), but that is necessary to avoid (i) “placing the health of” a pregnant patient “in serious jeopardy”; (ii) a “serious impairment to bodily functions” of the pregnant patient; or (iii) a “serious dysfunction of any bodily organ or part” of the pregnant patient, pursuant to 42 U.S.C. § 1395dd(e)(1)(A)(i)-(iii).

Idaho law permits an abortion only to save the life of the mother.  The Hill reports on the decision.

Court Enjoins Enforcement In Texas Of HHS Emergency Abortion Guidance

In State of Texas v. Becerra, (ND TX, Aug. 23, 2022), a Texas federal district court issued a preliminary injunction prohibiting enforcement in Texas of the Department of Health and Human Services' guidance to hospitals (and accompanying letter) which, relying on the federal Emergency Medical Treatment & Labor Act, requires hospital emergency rooms to perform certain abortions even when they violate Texas law. According to the Guidance, when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition, EMTALA requires emergency rooms to perform it. The court's 67-page opinion said in part:

Texas law already overlaps with EMTALA to a significant degree, allowing abortions in life-threatening conditions and for the removal of an ectopic or miscarried pregnancy. But in Dobbs’s wake and in an attempt to resolve any potential conflict with state law, the Department of Health and Human Services issued Guidance purporting to remind providers of their existing EMTALA obligations to provide abortions regardless of state law. That Guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict. Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child. Nor can it, in doing so, create a conflict with state law where one does not exist. The Guidance was thus unauthorized. In any event, HHS issued it without the required opportunity for public comment.

Reuters reports on the decision.

Synagogue's Suit Over Zoning Denial Is Dismissed

In Chabad of Prospect, Inc. v. Louisville Metro Board of  Zoning Adjustment,(WD KY, Aug. 23, 2022), a Kentucky federal district court dismissed a suit brought against zoning officials by a synagogue that was denied a conditional use permit to use a home purchased by it for religious services. When the property was put up for sale, zoning rules allowed its use for religious purposes.  However, before plaintiff purchased the property the city removed that provision and required a conditional use permit. Plaintiff was unaware of the change. The court held that plaintiff's Sec. 1983 claim alleging 1st Amendment violations was barred by the statute of limitations. Additionally, it held that plaintiff failed to state a claim under RLUIPA, saying in part:

Chabad alleged only that it chose and purchased the property “specifically” to open a synagogue for the community given that there are “[v]ery few synagogues” in the area and having one in “Prospect is vital to its mission.”... It didn’t allege any delay, expense, and uncertainty due to the burden of the denial. And Chabad never alleged that alternatives are infeasible, nor any other facts that indicate a substantial burden.

The court also rejected a claim under RLUIPA's "equal terms" provision, saying in part:

Chabad hasn’t offered anything to rebut the prediction that a house of worship would be more likely to cause greater traffic problems than regular residential events, even if the religious services are currently smaller....

Finally, the court rejected plaintiffs' state law claims.

Utah Court Strikes Down Ban On Transgender Girls On School Sports Teams

 In Roe v. Utah High School Activities Association, (UT Dist. Ct., Aug. 19, 2022), a Utah state trial court issued a preliminary injunction barring enforcement of a provision in Utah law that bans transgender girls from competing on pre-college girls sports teams. Under Utah law, if the ban is enjoined a School Activity Eligibility Commission is to be created that will consider confidentially on a case-by-case basis whether it would be fair for a particular transgender student to compete on girls' teams. The court said in part:

The Court finds that Plaintiffs have shown a substantial likelihood that the Ban violates the uniform operation of laws (“UOL”) clause of the Utah Constitution....

Both a plain reading of the Ban and relevant case law demonstrate that the legislation classifies individuals based on transgender status and, therefore, on sex....

During the 2021-22 school year, only four of the 75,000 students that played high school sports in Utah were transgender. Of those four, only one student played on a girls’ team.... There is no support for a claim “that allowing transgender women to compete on women’s teams would substantially displace female athletes.”....  

Similarly, Plaintiffs’ evidence suggests that there is no basis to assume that transgender girls have an automatic physiological advantage over other girls. Before puberty, boys have no significant athletic advantage over girls.... Many transgender girls – including two of the plaintiffs in this case – medically transition at the onset of puberty, thereby never gaining any potential advantages that the increased production of testosterone during male puberty may create.... Other transgender girls may mitigate any potential advantages by receiving hormone therapy.... And still others may simply have no discernable advantage in any case, depending on the student’s age, level of ability, and the sport in which they wish to participate. The evidence suggests that being transgender is not “a legitimate accurate proxy” for athletic performance.

AP reports on the decision.

School Policy On Treatment of Transgender Students Upheld

In Parents 1 v. Montgomery County Board of Education, (D MD, Aug. 18, 2022), a Maryland federal district court upheld Guidelines promulgated by Montgomery County, Maryland school officials on dealing with transgender and gender non-conforming students.  Parents particularly challenge the portion of the Guidelines that advise school personnel not to disclose a student’s gender identity to their parents without the student’s consent, especially when the student has not yet disclosed their gender identity to their parents, or if the student either expects or knows their parents are unsupportive. Plaintiffs contend that this violates their parental rights protected by the due process clause of the 14th Amendment. The court said in part:

My review of the Guidelines reveals that the Plaintiff Parents’ argument is based on a selective reading that distorts the Guidelines into a calculated prohibition against the disclosure of a child’s gender identity that aims to sow distrust among MCPS students and their families. In reality, the Guidelines instruct MCPS staff to keep a student’s gender identity confidential until the student consents to the disclosure out of concern for the student’s well-being, and as a part of a more comprehensive gender support plan that anticipates and encourages eventual familial involvement whenever possible....

The court concluded that the Guidelines are subject only to rational basis review. It went on to say that even if it were to apply strict scrutiny, the Guidelines would still be upheld because the state's interest in safeguarding a minor's physical and psychological well-being is compelling. The court also dismissed various claims under Maryland law. WTOP News reports on the decision.

Postal Worker Seeks Supreme Court Modification Of Title VII Precedents On Reasonable Accommodation

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Groff v. DeJoy. In the case, the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, held that accommodating a Sunday sabbath observer by allowing him not to report for work on Sunday would cause an "undue hardship" to the U.S. Postal Service.  Thus, failure to grant that accommodation did not violate Title VII. (See prior posting.) Appellants are asking the Supreme Court to repudiate the definition of "undue hardship" which the Court approved in its 1977 decision in TWA v. Hardison. First Liberty issued a press release announcing the filing of the petition for review.

Court Gives Guidance On Assessing Whether Parents Had Sincerely Held Religious Belief Opposing Vaccination

In In the Interest of C.C., (GA Sup. Ct., Aug. 23, 2022), the Georgia Supreme Court gave guidance to a Juvenile Court on how to determine whether parents' objections to vaccinating their children (who were now in custody of the state) are based on a sincerely held religious belief. The court said in part:

Even if the Chandlers do not “observe a particular religion” or attend church consistently, and even if their objection to vaccination is partly secular, they may still be able to identify a religious belief that they sincerely hold and that would be violated by the vaccination of their children.... The juvenile court’s sincerity finding apparently rested at least in part on an assumption to the contrary; this prevents us from affirming this ruling....

In fairness to the juvenile court, the proper standard is not easily reducible to a simple formula; accordingly, we offer the following guidance.... Ultimately, the juvenile court must determine whether the Chandlers’ religious objection to the vaccination of their children is “truly held.” ... The court should “sh[y] away from attempting to gauge how central a sincerely held belief is to the believer’s religion.” And it must bear in mind that “a belief can be both secular and religious. The categories are not mutually exclusive.”...

The juvenile court can weigh various factors, including ... how long the Chandlers have asserted their professed religious belief, how much they know about it, and their reliance on “religious literature and teachings supporting the belief[.]” ... Whether the Chandlers have wavered in their actions related to vaccination “also appears to be relevant[.]”... But the juvenile court should also be cautious in affording more than a little weight to evidence that the Chandlers were inconsistent in visibly living out their religious beliefs; for example, the frequency of the family’s church attendance....

Last Defendant In Poway Synagogue Tax Fraud Scheme Sentenced

The U.S. Attorney's Office for the Southern District of California announced on Friday that attorney Elliot Adler, the eleventh and last individual being prosecuted for the tax fraud scheme connected with Chabad of Poway, was sentenced to one year and one day in prison, fined $20,000, and ordered to forfeit gold coins purchased with funds used in the fraud. According to the announcement:

Beginning at least as early as 2010 and continuing through October 2018, Adler participated in a so-called “90/10” tax scheme with Rabbi Goldstein. Specifically, Adler gave money to Rabbi Goldstein that purported to be a donation to Chabad of Poway. Goldstein then secretly funneled ninety percent of the funds back to Adler, keeping ten percent of the funds as his fee. None of the donated funds was actually given to the Chabad as a charitable donation. Adler then falsely claimed that the fraudulent donations were tax-deductible on his tax returns, allowing him to reduce his personal income tax liability by approximately $500,000 (cumulatively) for tax years 2011 through 2017.

(See prior related posting.)

Religious Objections To Air Force COVID Mandate Dismissed For Lack of Standing and Ripeness

In Miller v. Austin, (D WY, Aug. 22, 2022), a Wyoming federal district court dismissed on standing and ripeness grounds a suit by two Air Force sergeants who face discharge because of their refusal on religious grounds to receive the COVID vaccine.  The court said in part:

Defendants correctly point out "Plaintiffs have filed this lawsuit to avoid the possibility of involuntary separation."... Furthermore, due to the pending class action, Defendants confirmed Miller's August 25, 2022 separation hearing has been paused.... There is no current threat of separation. Plaintiffs have not yet suffered a concrete, particularized, actual injury in fact because Plaintiffs have not been separated from the USAF. Plaintiffs do not have standing to bring this issue.

More damning to Plaintiffs' case, however, is the fact that the religious exemption is still subject to administrative review within the USAF.

International Day Commemorating Victims Of Religious Persecution

Today was International Day Commemorating the Victims of Acts of Violence based on Religion or Belief, so designated by a United Nations General Assembly Resolution (full text) adopted in 2019. A U.N. web page sets out the background and importance of the day. U.S. Secretary of State Anthony Blinken issued a statement (full text) saying in part:

May this day offer assurance to those suffering for their beliefs that the United States and likeminded partners have not forgotten or forsaken you.  We see you, we hear you, and we remain unwavering in our commitment to ensure your freedom, protection, and peaceful exercise of your beliefs.

The Council of the European Union issued a press release marking the occasion, saying in part:

In these times of armed conflicts and humanitarian crises across the globe, individuals, including those belonging to minority groups, continue to be discriminated against, persecuted targeted, killed, detained, expelled or forcefully displaced because of their religion or for holding humanists and /or atheist beliefs. Today is an opportunity to highlight their situation.

No State Action Involved In Barring Of Plaintiff From Moorish Science Temple

In Bey v. Sirius-El, (ED NY, Aug. 19, 2022), a New York federal district court dismissed a suit seeking damages, injunctive relief and criminal prosecution of defendants for barring plaintiff from attending the Brooklyn Moorish Science Temple in person. Plaintiff was barred because of the potential for a conflict between her and a "competing love interest" who has also been attending services. Plaintiff's free exercise claims were dismissed because she did no allege that any state action was involved.

Recent Articles of Interest

From SSRN:

• David Simson, Most Favored Racial Hierarchy: The Ever-Evolving Ways of the Supreme Court’s Superordination of Whiteness,  (Michigan Law Review, Vol. 120, No. 8, 2022).
• Kathleen Brady, Independent and Overlapping: Institutional Religious Freedom and Religious Providers of Social Services, (Loyola University Chicago Law Journal, Forthcoming).
• Perry Dane, The Anomalous Free Speech Clause (August 12, 2022).
• Hershey H. Friedman & Linda Weiser Friedman, Encounters with God: Rabbinic Stories and What We Can Learn from Them, (August 14, 2022).
• Kaiponanea T. Matsumura, The Marital Habitus, (Washington University Law Review, Vol. 99, No. 6, 2022).
• Zheng Zhang, Counterterrorism in the Post-Epidemic Era, (April 1, 2022).

From SSRN (Abortion Rights):

• Tyler Valeska, Abortion Speech Suppression (July 28, 2022).
• David Landau & Rosalind Dixon, Dobbs, Democracy, and Dysfunction (August 9, 2022).
• I. Glenn Cohen, Melissa Murray & Lawrence O. Gostin, The End of Roe v Wade and New Legal Frontiers on the Constitutional Right to Abortion, (The Journal of the American Medical Association, published online July 8, 2022).
• Dov Fox, What Will Happen if Doctors Defy the Law to Provide Abortions?, (New York Times (online), July 17, 2022).

From SSRN (European Law):

• Julie Ringelheim & Stijn Smet, Secularism and State Neutrality in Constitutional Adjudication: A Comparative Analysis of Belgium, Germany and France, (in P. Nihoul, B. Renauld and J. Theunis (eds), Réflexions autour de la laïcité – Reflecties over laïciteit. Liber amicorum François Daout, Anthemis (2022)).
• Daid de Groot, Bans on Conversion 'Therapies' - The Situation in Selected EU Member States, (European Parliamentary Research Service, PE 733.521 (2022)).

From SmartCILP and Elsewhere:

• C. Scott Maravilla, Lifting the Veil by Covering It: European Prohibitions on the Practice of Veiling Constitute the Forced Covering of Muslim Women, 51 University of Baltimore Law Review 73-102 (2021).
• Columbia Law School Law, Rights and Religion Project, A Religious Right To Abortion: Legal History and Analysis,(2022).

Michigan County Prosecutors Temporarily Enjoined From Enforcing Pre-Roe Abortion Ban

As reported by Bridge Michigan, a Michigan state trial court judge yesterday issued a preliminary injunction barring county prosecutors from enforcing a 1931 statute banning abortion. The injunction prevents enforcement while the constitutionality of the statute is being litigated. According to the report:

[Judge] Cunningham said the danger of harm to women and doctors if the ban were allowed to take effect “could not be more crystal clear.”

“The court finds the statute dangerous and chilling to our state's population, childbearing people and the medical professionals that care for them”....

Other Michigan courts have already barred the state Attorney General's office from enforcing the pre-Roe statute. (See prior posting.) The court yesterday postponed any further hearings until after the November elections in which a proposed state constitutional amendment on abortion rights will likely be on the Michigan ballot.

Michigan Governor Gretchen Whitmer issued a statement (full text) welcoming the court's decision.

Some Of Fired Pastor's Claims Can Move Ahead

In Nation Ford Baptist Church Inc. v. Davis, (NC Sup.Ct., Aug. 19, 2020), the North Carolina Supreme Court allowed a Pastor to move ahead with a portion of his claims challenging his firing, saying in part:

Which set of corporate bylaws were in effect at the relevant time, whether the Church and Board followed the procedures set forth in the bylaws, and whether there was a contract of employment between Pastor Davis and the Church that was breached are factual and legal questions that are appropriately answered by reference to neutral principles of corporate, employment, and contract law....

Nonetheless, other claims raise questions that cannot be answered without considering spiritual matters. These claims must be dismissed for lack of subject matter jurisdiction....

[I]n all other respects the first claim for relief goes too far, particularly in the remedy sought, because the court can neither declare Pastor Davis the spiritual leader of the Church nor require that he be allowed to conduct services. Addressing this controversy would entangle the court in religious matters such as whether Pastor Davis adequately performed his duties as a pastor as that role is understood in accordance with the Church’s faith and religious traditions.

[Thanks to Will Esser via Religionlaw for the lead.]

Fire Department Chaplain Dismissed Because Of His Blog Posts Files Suit

An ordained Christian minister who has been a volunteer fire department chaplain in Austin, Texas filed suit in a Texas federal district court yesterday alleging that his free speech and free exercise rights were violated when the fire department terminated him as a chaplain because of his social media posts.  The complaint (full text) in Fox v. City of Austin, (WD TX, filed 8/18/2022), alleges in part:

Dr. Andrew K. Fox ... helped start Austin’s fire chaplaincy program and served as its lead chaplain—a volunteer position—for eight years. That abruptly changed when Dr. Fox posted something on his personal blog that Austin officials considered unacceptable: his religious belief that men and women are created biologically distinct and his view that men should not compete on women’s sports teams. After Austin officials demanded that Dr. Fox recant and apologize for expressing these beliefs and Dr. Fox refused, they terminated him....

Under the City’s standard, no one who openly holds historic Christian beliefs about the immutable differences between men and women can serve as a chaplain or in any other fire department position.... When the government can needlessly punish people for professing views outside of work on matters of ongoing public debate, that chills everyone’s speech and discourages democratic participation.

ADF issued a press release announcing the lawsuit.