Thursday, October 19, 2023

5th Circuit: Religious Objection to Medications Must Be Considered In Forcible Medication Determination

United States v. Harris, (5th Cir., Oct. 17, 2023), involved a defendant who was charged with threatening to assault a federal judge. Defendant was found incompetent to stand trial and was involuntarily hospitalized to determine whether it was likely that he will attain competency in the foreseeable future. The government sought to involuntarily medicate defendant who, as a Jehovah's Witness, had refused for religious reasons to take medications.  Under Supreme Court precedent (Sell v. United States), one of the factors to be considered in deciding whether involuntary medication is permissible is whether important governmental interests are at stake, taking into account that special circumstances may lessen the importance of that interest.  In the case the U.S. 5th Circuit Court of Appeals held that said in part:

If ... secular circumstances are important enough to lessen the Government’s interest in prosecution, ... we believe religious liberty must be at least as important....

Harris’s religious beliefs, combined with his lengthy detention and his potential civil confinement, thus lessen the Government’s interests under the first Sell factor.

We hasten to emphasize the limits in today’s holding. We do not hold that religious faith constitutes a get-out-of-jail-free card. We also do not hold that all religious objections eliminate the Government’s interests under the first Sell factor. We hold only that religious liberty can constitute a “special circumstance” under Sell,,,,

Employees' Objections to Covid Vaccine Were Not Religious

In Foshee v. AstraZeneca Pharmaceuticals LP, (D MD, Oct. 17, 2023), a Maryland federal district court dismissed a Title VII religious discrimination claim by two employees who were denied a religious exemption from a company's Covid vaccine mandate, finding that their objections were not religious in nature. The court said in part:

Both Foshee and Pivar made similar assertions – that they are guided in their important decisions by God or the Holy Spirit, respectively, that they personally do not see the value in and are concerned about the risks associated with the COVID-19 vaccines, and that they have not felt God or the Holy Spirit calling them to disregard their consciences and get the vaccine....

Foshee’s position, that God gave him a conscience that tells him what to do, similarly amounts to a “blanket privilege.” The same conscience-based justification could be used to evade any job requirement that Foshee disagreed with. Pivar’s position that he listens to the guidance of the Holy Spirit which guides him in his difficult decisions is in the same vein....

Of course, harboring secular reasons alongside religious reasons does not automatically disqualify the religious beliefs, but in this circumstance, the reasons are inextricably intertwined in a way that dilutes the religious nature. For example, plaintiffs do not want to take the vaccines, therefore their consciences tell them not to do it, and they believe it is God’s will or in accord with the Holy Spirit that they follow their consciences. That reasoning is not subject to any principled limitation in its scope. Their beliefs thus confer the type of unverifiable “blanket privilege” that courts cannot permit to be couched as religious in nature.

Wednesday, October 18, 2023

School Material on Islam Did Not Violate Current Establishment Clause Test

As previously reported, in November 2020 in Hilsenrath v. School District of the Chathams, a New Jersey federal district court held that the 7th grade World Cultures and Geography course presentation of material about Islam did not violate the Establishment Clause. Subsequently the U.S. 3rd Circuit Court of Appeals (2022 U.S. App. LEXIS 20588 (July 20, 2022)) remanded the case to the district court for further consideration in light of the U.S. Supreme Court's decision in Kennedy v. Bremerton School District. Now in Hilsenrath v. School District of the Chathams, (D NJ, Oct. 16, 2023), the district court reaffirmed its former conclusion, saying in part:

In sum, the curriculum and materials here were not coercive and do not otherwise bear or resemble the “hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.” Accordingly, the Board did not violate the Establishment Clause. I will enter summary judgment in the Board’s favor on Hilsenrath’s remaining nominal-damages claim.

India's Supreme Court Refuses to Recognize Same-Sex Marriage

In Supriyo @ Supriya Chakraborty v. Union of India, (Sup. Ct. India, Oct. 17, 2023), a 5-judge bench of India's Supreme Court, in 4 opinions spanning 366 pages, refused to recognize same-sex marriages, but called on the government to study and implement further rights for same-sex couples. As summarized by BBC News:

The petitioners had argued that not being able to marry violated their constitutional rights and made them "second-class citizens".

They had suggested that the court could just replace "man" and "woman" with "spouse" in the Special Marriage Act - which allows marriage between people from different religions, castes and countries - to include same-sex unions.

The government and religious leaders had strongly opposed the petitions. The government had insisted that only parliament could discuss the socio-legal issue of marriage and argued that allowing same-sex marriage would lead to "chaos" in society.

On Tuesday, the judges agreed with the government, saying that only parliament could make law and the judges could only interpret them.

They accepted Solicitor General Tushar Mehta's proposal on behalf of the government to set up a committee, headed by the country's top bureaucrat, to consider "granting queer couples" rights and privileges available to heterosexual couples.

Tuesday, October 17, 2023

FBI Releases 2022 Hate Crime Statistics

The FBI yesterday released 2022 Crime Statistics, including data on hate crimes (Methodology)  (Data on Incidents). According to the FBI:

In 2022, law enforcement agency participation significantly increased ... with a population coverage of 91.7% submitting incident reports.... There were over 11,000 single-bias hate crime incidents.... [T]he top three bias categories ... were race/ethnicity/ancestry, religion, and sexual-orientation.

The FBI reported 2,042 incidents of religiously-motivated hate crimes. 1,122 of these were anti-Jewish. The next most numerous were 181 anti-Sikh incidents; 158 anti-Muslim and 107 anti-Catholic. President Biden issued a Statement (full text) on the Hate Crime Statistics, saying in part:

The data is a reminder that hate never goes away, it only hides. Any hate crime is a stain on the soul of America.

To those Americans worried about violence at home, as a result of the evil acts of terror perpetrated by Hamas in Israel, we see you. We hear you. And I have asked members of my team ... to prioritize the prevention and disruption of any emerging threats that could harm Jewish, Muslim, Arab American, or any other communities during this time. My Administration will continue to fight Antisemitism and Islamophobia.

Restaurant Settles EEOC Religious Discrimination Suit

The EEOC announced last week that a now-closed restaurant in Atlanta that was part of Landry's, a national restaurant group that continues to operate, has settled a Title VII religious discrimination lawsuit through a consent decree filed in a Georgia federal district court.  The EEOC said in part:

The EEOC alleged in its suit that Del Frisco’s violated federal law by failing to accommodate an employee’s religious practices and then discharging her. The employee, a server at the restaurant, had an existing religious accommodation of not working on Tuesdays so she could attend worship services. In 2019, when New Year’s Eve fell on a Tuesday, Del Frisco’s revoked her accommodation and tried to force her to work—alleging it was mandatory for servers to work the holiday. Despite saying it was a mandatory workday, Del Frisco’s gave other servers who did not need a religious accommodation the day off....

Under the consent decree resolving the lawsuit, Del Frisco’s will pay $25,000 in monetary damages to the former employee and train its management employees on religious discrimination at approximately 30 Del Frisco’s sister restaurants.

Monday, October 16, 2023

Recent Articles of Interest

From SSRN:

From SmartCILP:

Sunday, October 15, 2023

State May Regulate Health Care Sharing Ministries

In Gospel Light Mennonite Church Medical Aid Plan v. New Mexico Office of the Superintendent of Insurance(D NM, Oct. 13, 2023), a New Mexico federal district court refused to enjoin New Mexico's insurance superintendent from regulating Health Care Sharing Ministries. The court held that the state's Insurance Code is a neutral, generally applicable statute, saying in part:

Individual Plaintiffs argue that the Superintendent’s March 26, 2020, press release, --- which cautions consumers about HCSMs and stating that these plans are unauthorized insurance products—is not neutral because it “sends a signal of official disapproval” of Individual Plaintiffs’ religious beliefs.... The Court disagrees....

Applying rational basis review, the court said that it "has little difficulty concluding that state laws mandating compliance with the Insurance Code constitute a legitimate area of governmental concern."

Friday, October 13, 2023

Japan Seeks to Revoke Tax Exempt Status of Unification Church

AP reports that Japan's government today asked the Tokyo District Court to revoke the Unification  Church's status as a religious organization. Japan's branch of the Church is known as the Family Federation for World Peace and Unification.  The step was taken after an Education Ministry investigation concluded that the Church for decades has manipulated its followers into donating money.  According to Japan's Education Minister, the church pushed its followers to purchase expensive goods and donate money beyond their financial ability, causing fear and harm to them and their families. If successful, the government action would remove the Church's tax exemption, but would not prevent it from operating in the country. [Thanks to Scott Mange for the lead.]

Court Gives Limited Relief to Native Americans Who Object to Park Improvements Project

 In Perez v. City of San Antonio, (WD TX, Oct. 11, 2023), a Texas federal district court held that members of the Native American Church should be given access for religious services to a point on the San Antonio River which is a Sacred Site for them.  Access is limited to 15 to 20 people for no more than an hour on astronomical dates that coincide with their spiritual beliefs.  The court deferred ruling on whether access for all-night peyote ceremonies will be allowed. The court refused to grant plaintiffs' request that the proposed improvements to the park in which the Sacred Site is located be limited so that the spiritual ecology of the Sacred Area would be preserved by minimizing tree removal and allowing cormorants to nest. The court said in part:

The most important part of Plaintiffs’ spiritual ecology is the confluence of the shape of the Mother Waters at the bend of the San Antonio River with the shape of the Eridanus constellation of stars.

Given the current extended drought, the lack of water flow from the Blue Hole Springs and other natural sources, there would be no San Antonio River/Mother Waters but for the City artificially assisting the river by pumping recycled waste water, presumably from the sewer reclamation system.... This creates something of a secular/religious symbiotic relationship between Plaintiffs and Defendant until it rains, the springs come to life and until the reformation and resurrection of the Project Area is complete. Amen.

... [T]he Court heard credible testimony of thousands of egrets, herons, and cormorants and their excrement nesting in the Project Area during their migrations at different times of the year. Once nested, the Migratory Bird Treaty Act precludes removal. The Court finds the bird deterrent operation is in the realm of public health and safety....

... [T]he Court finds the City has met its burden of proving a compelling government interest for public health and safety....

Moreover, Plaintiffs desire possibly to save trees by ordering the City to “reevaluate the Bond Project to develop alternative plans” would, given the lengthy redesign and re-permitting processes, exponentially extend Plaintiffs’ and the public’s presently fettered ability to enjoy the area. The temporary closing becomes semi-permanent. Instead of months, access would likely remain limited for years, as is the case of the faithful who find the Notre Dame Cathedral to be their sacred place and who for several years will have to use alternative places of worship. By its Order, it is the Court’s intent to make the fettered unfettered as soon as reasonably possible. It will be up to the parties to decide how long they wish to delay the unfettered with continuing litigation.

UPDATE: On Oct. 25, 2023, the Texas federal district court denied plaintiffs' emergency motion for an injunction pending appeal. 2023 U.S. Dist. LEXIS 192796.

 

Ban on California's Publicly Funded Home School Program Covering Faith-Based Instruction Challenged

California's public charter school program includes schools that fund independent study home schooling. Parents may use state funds for secular educational materials, but not for religious materials.  A school staff member must approve materials purchased with state funds and must periodically review work samples to assure that state educational standards are met. California Constitution Art. IX, Sec. 8 prohibits the teaching of religious doctrine in public schools, and the California Education Code requires charter schools to be non-sectarian. Suit was filed this week in a California federal district court seeking an injunction that will allow parents to spend instructional funds for faith-based materials and will require schools to accept work samples that derive from a faith-based curriculum.  The complaint (full text) in Woolard v. Thurmond, (ED CA, filed 10/11/2023), alleges that applying state law to prevent disbursement of instructional funds for faith-based materials and refusal to accept faith-based work samples violates plaintiffs Free Exercise and Free Speech rights. First Liberty Institute issued a press release announcing the filling of the lawsuit.

Thursday, October 12, 2023

Kansas AG Asks 10th Circuit To End Required Use of Preferred Pronouns

Kansas Attorney General Kris Kobach in an Oct. 6 letter (full text) to the Chief Judge of the U.S. 10th Circuit Court of Appeals asks the court to end the practice of some district and circuit court judges to require references to counsel, parties and witnesses by use of their preferred pronouns.  The letter says in part:

There are lawyers in my office who, for both religious and non-religious reasons, reject the idea of individuals dictating their own applicable pronouns....

The idea that a person can dictate his or her own pronouns based on internal feelings and then expect others to go along with that choice is a quite recent development....  But regardless of the merits of this idea as an abstract matter, enlisting the power of the state to force others to affirm such individual choices or feelings crosses a line and raises major questions regarding compelled speech and the First Amendment.

Many people have religious beliefs that would prevent them from using pronouns that do not correspond to a person’s sex. In Christianity (the most common religion in the United States), this position generally proceeds from interpretations of Genesis 1:27 and other scriptures that speak of a male/female dichotomy among persons. Other major world religions likewise have doctrines that point in the same direction.... To force these individuals to violate their religious beliefs in order to be heard in court is a restriction on their free exercise of religion....

Indeed, “gender identity” is the subject of growing wave of legislation and litigation. So requiring those appearing in court to use (or refrain from using) certain pronouns may reveal a prejudgment on issues in litigation.

The Attorney General's office also issued a press release summarizing the letter.

Wednesday, October 11, 2023

Crisis Pregnancy Center Sues Protesters Under FACE Act

 A civil suit under the Freedom of Access to Clinic Entrances (FACE) Act was filed last week in a New York federal district court by CompassCare which operates an anti-abortion crisis pregnancy center in a Buffalo, NY suburb.  The complaint (full text) in Crisis Pregnancy Services, Inc. v. Kamke, (WD NY, filed 10/5/2023), alleges that defendant organized a counter-protest to CompassCare's Walk for Life at which protesters blocked a highway and assaulted walkers and police.  It alleges that subsequently, one of the defendants wrote graffiti on the organization's driveway, intending to deter staff, volunteers and patients from entering, and on another occasion stole a no-trespassing sign. Another defendant allegedly spray painted the word Liars over the center's entrance sign.  Finally it alleges that Jane Doe defendants were involved with a firebombing and graffiti. LifeNews reports on the lawsuit.

Cert. Filed In Abortion Sidewalk Counseling Dispute

 A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Reilly v. City of Harrisburg, (Sup. Ct., filed 10/10/2023).  In the case, the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a suit brought by anti-abortion sidewalk counselors challenging Harrisburg's ordinance creating a 20-foot buffer zone designed to exclude protesters around health-care facilities, including abortion clinics. In its opinion, the 3rd Circuit agreed that the city did not have a policy or custom prohibiting one-on-one sidewalk counseling. Liberty Counsel issued a press release announcing the filing of the petition for review.

Tuesday, October 10, 2023

Indiana Man Indicted for Sending Death Threats to ADL Staff

The Department of Justice announced last week that a federal grand jury has indicted an Indiana man for making telephone death threats to offices of the Anti-Defamation League in New York, Houston, Denver and Las Vegas. The Indictment (full text) in United States v. Boryga, (SD IN, Oct. 3, 2023), charges defendant with four counts of transmitting in interstate commerce a threat to injure. It charges that defendant chose the threat targets because of the actual and perceived religion of ADL employees and members. According to DOJ:

If convicted on all counts, Boryga faces a maximum penalty of 20 years in prison, three years of supervised release and a fine of up to $250,000.

Feds Settle Suit Brought by Native American Tribes Over Destruction of Sacred Site

 A settlement between several federal agencies and Native American tribes in Oregon was reached last week in a case challenging the government's destruction of a small sacred site near Mount Hood when it widened a highway.  (See prior related posting.) The 9th Circuit had dismissed the case as moot, and plaintiffs filed an appeal with the U.S. Supreme Court.  Last week the parties filed a Joint Stipulation to Dismiss (full text) in Slockish v. U.S. Department of Transportation, (Sup. Ct, Oct. 5, 2023). Under the settlement, the government is to construct a tree or plant barrier to protect the site, allow access to an existing quarry for ceremonial and cultural uses, and allow plaintiffs to rebuild a stone altar on the site. [Note that the filed stipulation appears to be erroneously dated "2022" instead of "2023". The Supreme Court docket for the case confirms that 2023 is the correct date.] Oregon Capital Chronicle  and AP report on the settlement.

Monday, October 09, 2023

1st Circuit Remands Covid Vaccine Religious Exemption Case

In Brox v. Woods Hole, Martha's Vineyard and Nantucket Steamship Authority, (1st Cir., Oct. 6, 2023), the U.S. 1st Circuit Court of Appeal affirmed in part and vacated in part a trial court's refusal to require that plaintiffs be given a religious exemption from a state agency's Covid vaccine mandate. The court said in part:

[T]he appellants argue that the Policy, as administered, provides medical exemptions that permit unvaccinated employees to work "in close contact with colleagues, despite the purported direct threat . . . [their] unvaccinated status poses to them" but not religious exemptions that would permit unvaccinated employees to do the same even though their unvaccinated status poses no greater threat. And, according to the appellants, the Policy, as administered, is therefore not generally applicable -- and thus is subject to strict scrutiny -- because it "prohibits religious conduct while permitting secular conduct that undermines the government's asserted interests in a similar way"....

The appellees do argue that the Policy is generally applicable -- and so not subject to strict scrutiny -- for reasons having to do with the differing statutory liability that the Authority would face in denying requests for exemption that are medically rather than religiously based. The appellees assert in that regard that an employer may show that an accommodation for religious practice would constitute an "undue hardship" under Title VII of the Civil Rights Act of 1964 ... more easily than an employer may show that an accommodation for a disability would constitute an undue hardship under the Americans with Disabilities Act.... 

But even if we were to accept the appellees' contention about the greater leeway that an employer has under Title VII,.., the appellees do not develop any argument as to why we must conclude that, as a matter of law, the greater federal statutory liability that an employer faces for denying a medical exemption from a COVID-19 vaccine mandate than for denying a religious exemption from one suffices in and of itself to show that, for free exercise purposes, the former exemption may be granted and the latter exemption may be denied to employees who pose comparable risks of spreading the virus without thereby rendering the mandate not generally applicable and so subject to strict scrutiny....

We thus do not see how we may rely on this ground to affirm the District Court's "likelihood of success" ruling as to the appellants' free exercise claim....

Thus, we vacate the District Court's ruling with respect to its denial of the requested injunctive relief on the appellants' free exercise claim. We leave it to the parties and to the District Court on remand, therefore, to consider the appellants' request for that relief under the applicable legal framework that we have set forth....

Recent Articles of Interest

From SSRN:

From SSRN (Abortion rights):

From SmartCILP and elsewhere:

Sunday, October 08, 2023

California Governor Vetoes Bill Explicitly Barring Caste Discrimination

Yesterday, California Governor Gavin Newsome vetoed Senate Bill 403 (veto message). The bill would have explicitly outlawed discrimination on the basis of caste. The Governor's message said that caste discrimination is already prohibited by current law that bars discrimination, among other things, on the basis of race, color, religion, ancestry and national origin. As reported by Reuters, opponents of the bill contend that it broadly paints the Hindu and South Asian communities as being discriminatory.

Friday, October 06, 2023

School District Settles Suit by Native Americans Over Cutting of Students' Hair

A consent decree (full text) was entered this week in Johnson v. Cody-Kilgore Unified School District, (D NE, Oct. 4, 2023). In the case, Native American parents (members of the Rosebud Sioux tribe) who practice traditional Lakota religious traditions sued over the school's cutting of their children's hair as part of a lice check and disposing of the hair in violation of Lakota tradition. (See prior posting.) Under the Consent Order, the School District will prohibit School Officials from cutting students' hair for any reason without the written parental (or guardian's) consent. It will also provide recognition of Native American Heritage Month and Indigenous Peoples' Day. Also the school district will pay damages totaling $227,500. Nebraska Examiner reports on the settlement agreement.