Religion Clause

Monday, December 11, 2023

Litigation Over Air Force's Handling of Religious Objections to Vaccine Mandate Dismissed as Moot by Supreme Court

The U.S. Supreme Court today in Kendall v. Doster, (Docket No. 23-154, GVR'd 12/11/2023) (Order List), granted certiorari, vacated the judgment below, and remanded the case to the 6th Circuit with instructions to direct the District Court to vacate its preliminary injunctions as moot. In the case, the 6th Circuit Court of Appeals affirmed a district court's grant of a class-wide preliminary injunction barring the Air Force from disciplining Air Force personnel who had sought religious exemptions from the military's COVID vaccine mandate. (See prior posting.) The case is moot because the vaccine mandate has been rescinded by the military in compliance with Congressional legislation ordering the recission. (See prior posting.) The court similarly remanded as moot two other cases involving other challenges to rescinded federal vaccine mandates.

Sunday, December 10, 2023

2nd Circuit: NY Ban on Firearms in Places of Worship Violates Free Exercise Rights

Antonyuk v. Chiumento, (2d Cir., Dec. 8, 2023), is a 261-page opinion upholding in part and rejecting in many other respects constitutional challenges to New York's Concealed Carry Improvement Act. One of the constitutional challenges which the court upheld was a claim by a pastor and his church that applying a firearms ban to non-security personnel in places of worship violates the Free Exercise and Establishment Clauses. In the case, the pastor alleged that the New York restrictions interfere with his religious duty to protect his congregation by being armed in church and by inviting other congregants with concealed carry licenses to bring their firearms. In accepting that argument, the court said in part:

[T]he CCIA is not neutral because it allows the owners of many forms of private property, including many types of retail businesses open to the public, to decide for themselves whether to allow firearms on the premises while denying the same autonomy to places of worship. By adopting a law that applies differently as to places of worship (alongside the other enumerated sensitive places) than to most other privately owned businesses and properties, the CCIA is, on its face, neither neutral nor generally applicable....

The State provides no explanation for why leaders of religious groups in general, and the Plaintiffs specifically, are less able to “eject persons carrying firearms” than any other property owner who is permitted to make a free choice whether to allow firearms on their premises.... A place of worship that prohibits guns will be equally reliant on the police and the criminal law to eject a person carrying a firearm, whether it does so pursuant to a sensitive place designation or a church policy. Either way, someone will have to call the cops. And if the State has determined that places of worship must be designated as sensitive places because criminal trespass law is not enough to keep out guns, then the decision to regulate places of worship more assiduously than other locations amounts to an unequal pursuit of the interest in preventing gun violence. Such an approach is understandable, but unconstitutional....

Reuters reports on the decision.

Saturday, December 09, 2023

U Penn Sued Over Hostile Antisemitic Campus Environment

Suit was filed earlier this week in a Pennsylvania federal district court by two Jewish students alleging that the hostile environment for Jewish students on the University of Pennsylvania's campus violates Title VI of the 1964 Civil Rights Act, the Pennsylvania Unfair Trade Practices and Consumer Protection Law and constitutes a breach of contract. The 84-page complaint (full text) in Yakoby v. University of Pennsylvania, (ED PA, filed 12/5/2023), alleges in part:

1. Penn, the historic 300-year-old Ivy League university, has transformed itself into an incubation lab for virulent anti-Jewish hatred, harassment, and discrimination. Once welcoming to Jewish students, Penn now subjects them to a pervasively hostile educational environment. Among other things, Penn enforces its own rules of conduct selectively to avoid protecting Jewish students from hatred and harassment, hires rabidly antisemitic professors who call for anti-Jewish violence and spread terrorist propaganda, and ignores Jewish students’ pleas for protection. In doing so, Penn has placed plaintiffs and other Jewish and Israeli students at severe emotional and physical risk.

2. This lawsuit seeks to hold Penn accountable under Title VI of the Civil Rights Act of 1964 for the damages it has caused plaintiffs and for its failure to remedy the hostile environment on its campus. The harassment and discrimination on campus and in the classroom are relentless and intolerable. Plaintiffs and their Jewish peers are routinely subjected to vile and threatening antisemitic slurs and chants such as “Intifada Revolution,” “from the River to the Sea,” “Fuck the Jews,” “the Jews deserve everything that is happening to them,” “you are a dirty Jew, don’t look at us,” “keep walking you dirty little Jew,” “get out of here kikes!” and “go back to where you came from.” Plaintiffs and other Jewish students must traverse classrooms, dormitories, and buildings vandalized with antisemitic graffiti. Subjected to intense anti-Jewish vitriol, these students have been deprived of the ability and opportunity to fully and meaningfully participate in Penn’s educational and other programs.

The Daily Pennsylvanian reports on the lawsuit.

Friday, December 08, 2023

Texas Court Issues TRO Permitting an Abortion; Texas AG Responds

A Texas state trial court yesterday issued a Temporary Restraining Order prohibiting the Texas Attorney General and the state Medical Board from enforcing Texas' abortion ban against plaintiff physician and her staff for performing a D&E abortion for plaintiff Kate Cox who is carrying a fetus diagnosed with a chromosomal condition that will result in its death before birth or at most in a few days after birth. The court in Cox v. State of Texas, (TX Dist. Ct., Dec. 7, 2023), said in part:

The longer Ms. Cox stays pregnant, the greater the risks to her life. Ms. Cox has already been to three emergency rooms with severe cramping, diarrhea, and leaking unidentifiable fluid.... If she is forced to carry this pregnancy to term, she will likely need a third C-section ... [which would] make it less likely that Ms. Cox would be able to carry another child in the future.

Dr. Karsan has met Ms. Cox, reviewed her medical records, and believes in good faith, exercising her best medical judgment, that a D&E abortion is medically recommended for Ms. Cox and that the medical exception to Texas' abortion bans and laws permits an abortion in Ms. Cox's circumstances. Dr. Karsan, however, cannot risk liability under Texas's abortion bans and laws for providing Ms. Cox's abortion absent intervention from the Court confirming that doing so will not jeopardize Dr. Karsan's medical license, finances and personal liberty.

Responding to the decision, Texas Attorney General Ken Paxton said in a press release:

The Temporary Restraining Order (“TRO”) granted by the Travis County district judge purporting to allow an abortion to proceed will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws. This includes first degree felony prosecutions.... and civil penalties of not less than $100,000 for each violation.... And, while the TRO purports to temporarily enjoin actions brought by the OAG and TMB against Dr. Karsan and her staff, it does not enjoin actions brought by private citizens.... Nor does it prohibit a district or county attorney from enforcing Texas’ pre-Roe abortion laws against Dr. Karsan or anyone else. The TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires.

He also sent a letter (full text) to three hospitals-- which were not parties to the case-- warning that they may be liable for negligently credentialing the physician and failing to exercise appropriate medical judgment if they permit the abortion to be performed in their facility. Austin-American Statesman reports on the decision.

UPDATE: On Dec. 8, the Texas Supreme Court administratively stayed the trial court's order while it considers the case on appeal.

UN Marks 75th Anniversary of Genocide Convention

Today is the United Nations International Day of Commemoration and Dignity of the Victims of the Crime of Genocide and of the Prevention of This Crime. (UN press release.) It marks Saturday's 75th Anniversary of the 1948 Genocide Convention. The U.S. Commission on International Religious Freedom also issued a press release marking the occasion, saying in part:

USCIRF notes with deep sadness that since the convention’s ratification, millions of people, including those targeted on the basis of religion, have been killed in genocidal campaigns by states and nonstate actors alike.

6th Circuit Hears Arguments on Standing to Challenge Gender Identity Ban in Health Care

On Wednesday, the U.S. 6th Circuit Court of appeals heard oral arguments in American College of Pediatricians v. Becerra. (Audio of full oral arguments.) In the case, a Tennessee federal district court dismissed for lack of standing a challenge to a rule promulgated by the Department of Health and Human Services that barred discrimination on the basis of gender identity in the furnishing of health care. The court also concluded that plaintiffs lacked standing to challenge an HHS rule requiring grant recipients to recognize same-sex marriages. (See prior posting.)

Appeals Court Hears Religious Challenges to Indiana Abortion Restrictions

On Wednesday, the Indiana Court of Appeals heard oral arguments in Individual Members of the Medical Licensing Board of Indiana et al. v. Anonymous Plaintiff 1. (Video of full oral arguments.) In the case, an Indiana state trial court preliminarily enjoined the state from enforcing Indiana's law restricting abortions against plaintiffs whose religious beliefs permit or require abortions in situations not allowed under Indiana law. (See prior posting.) The trial court also certified the case as a class action. (See prior posting.) Indy Star reports on the oral arguments.

Thursday, December 07, 2023

Denial of Permission to Build Grotto Did Not Violate RLUIPA

In Frederic v. City of Park Hills Board of Adjustment, (KY App., Dec. 1, 2023), a Kentucky state appeals court held that a denying a church permission to build a grotto on its property does not violate the Religious Land Use and Institutionalized Persons Act. The court said in part:

The application of the ordinance to prohibit construction of the grotto may make practice of religion somewhat more difficult for the church’s congregation or the adherents of the Catholic faith broadly, but the Zoning Ordinance is not inherently inconsistent with their religious beliefs. Accordingly, we find the Park Hills Zoning Ordinance imposes no substantial burden on the religious exercise of any Appellee and, therefore, the ordinance does not constitute a violation of RLUIPA.

Elimination of Religious Exemption from School Vaccination Requirements Is Upheld

In Milford Christian Church v. Russell-Tucker, (D CT, Dec. 1, 2023), a Connecticut federal district court dismissed 1st and 14th Amendment challenges to Connecticut's removal of its religious exemption from school vaccination requirements. The court said in part:

To be clear, Plaintiffs do argue that Conn. Gen. Stat. § 10-204a is not a neutral law and that it “specifically targeted religious practices that it disagreed with – refusing to take a vaccine because of its ingredients – and it eliminated any tolerance for those religious beliefs by completely foreclosing all avenues for parents who hold religious beliefs against taking vaccines to education their children at al.”... But this argument ... is based on Plaintiffs contention that Defendants’ failure to eliminate medical exemptions and legacy exemptions undermines their stated goal of protecting children’s and community health. ...

Here, the conduct regulated by Conn. Gen. Stat. § 10-204a—requiring vaccination before attending school—is applied to everyone regardless of religious or secular objections.

The secular conduct permitted—exemptions for medical reasons—does not “undermine[] the government’s asserted interests in a similar way,”... These medical exemptions—because they are limited in number—are not “at least as harmful to the legitimate government interest purportedly justifying it,”....

In We the Patriots...., the Second Circuit held that that “protecting public health is a compelling government interest,”... and that “Act’s repeal of the religious exemption is rationally related to that interest because it seeks to maximize the number of students in Connecticut who are vaccinated against vaccine-preventable diseases.”...

To the extent that mandating the vaccination of students affects the Plaintiffs’ speech rights, it is “an incidental burden” related to a “neutral regulation” for “substantial” public health reasons, an interest not achievable by not requiring vaccinations, despite any “incidental” message it sends Plaintiffs’ about their religion....

Exclusion of Parochial School Students from District's Extracurricular Activities Violates Free Exercise

In Religious Rights Foundation of PA v. State College Area School District, (MD PA, Dec. 1, 2023), a Pennsylvania federal district court refused to dismiss a free exercise challenge to a school district's policy that allowed district students enrolled in a home school program or in a charter school to participate in the district's extracurricular activities, but did not allow parochial school students to participate. The court said in part:

SCASD presents its policy as one prohibiting private students’ involvement in extracurricular programming and argues that by this definition its policy would be generally applicable. But by carving exemptions out of the definition of a policy, a defendant can make any policy appear generally applicable. This approach is clearly circular for the obvious reason that “every law applies to everything it applies to.” ...

Instead, the policy is more accurately stated at a broader level of generality—only students enrolled in SCASD may participate in its extracurricular activities. That general policy is subject to two categorical exemptions for charter-schooled and homeschooled students....

Where a regime refuses to exempt religious conduct but imposes a categorical exemption for secular conduct which threatens an analogous harm to the stated interest, it is a foregone conclusion that the regime is underinclusive. For if SCASD had a policy narrowly tailored to prevent overcrowding of its extracurricular programming, it would not have had the homeschool and charter school exemptions in the first place.....

Plaintiffs attend parochial schools as a form of religious exercise. Other students attend homeschool and charter school for their own reasons. Under the Free Exercise Clause, religious reasons for not attending public school must be considered at least as important as any secular reason. Plaintiffs have adequately alleged that SCASD’s failure to extend its exemption to students who do not attend its school for religious reasons offends the Free Exercise Clause, as it denies a government benefit on the basis of religious exercise through a law which is not generally applicable....

At one point in its opinion, the court added:

If SCASD proffers different justifications for its scheme of exemptions later in this litigation, such that strict scrutiny does not apply, it might succeed in defending the status quo. But such a justification must actually be grounded in some fact distinguishing homeschooled and charter-schooled students from parochially schooled students, in relation to the risks posed by allowing their participation.

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

Sunday, December 03, 2023

RELIGION CLAUSE IS ON A PUBLICATION BREAK UNTIL DECEMBER 7

Friday, December 01, 2023

Christian Non-Profit Cannot Rescind Job Offer Because of Same-Sex Marriage

In McMahon v. World Vision, Inc., (WD WA, Nov. 28, 2023), a Washington federal district court held that a Christian non-profit organization violated Title VII and the Washington Law Against Discrimination when it rescinded a job offer originally made to plaintiff after it learned that she was in a same-sex marriage. Plaintiff had been offered the position of customer service representative which involved telephone cultivation of donor relationships. The court held that the religious employer exemption in Title VII only immunizes religious discrimination by such organizations; it does not immunize them from sex discrimination claims. It also held that the ministerial exception doctrine does not apply to the position offered to plaintiff.

Similarly, the rejected the bona fide occupational qualification defense, saying in part:

Nothing in the record indicates that being in a same-sex marriage affects one’s ability to place and field donor calls, converse with donors, pray with donors, update donor information, upsell World Vision programs, or participate in devotions and chapel.

The court went on to find that both Title VII and the WLAD are neutral laws of general applicability so that only rational basis review is required. Finally the court rejected defendants' free speech and expressive association claims.

Thursday, November 30, 2023

British Appeals Court Upholds Preacher's Fraud Conviction For Selling COVID Preventative

In Wiseman v. Rex, (EWCA, Nov. 20, 2023), Britain's Court of Appeal upheld the fraud conviction of the head of the Kingdom Church for selling an oil mixture that he represented would protect against or cure COVID. According to the court:

5.... Using the name Prophet Climate Wiseman, he described the oil mixture on his website ... as containing cedar wood, hyssop and prayer, and stated that it had “sat upon the altar for 7 days”.

6. The oil was generally referred to as “plague protection oil” or “divine cleansing oil”. Through its use, together with a scarlet yarn, it was said that the special ingredients “act like an invisible barrier” and that “coronavirus and any other deadly thing will pass over” the user....

8. The prosecution case was that promotion and sale of the oil mixture was little more than exploitative commercial opportunism disguised as an article of faith....

9. The defence case was that the appellant had promoted and sold the oil mixture in good faith. It was aimed at people who believed in God, and when the oil mixture was combined with prayer it would work to protect against and cure coronavirus.... He believed in the truth of claims made by him in respect of the oil mixture....

Appellant was given a suspended prison sentence, a 130 hour community service requirement and a costs order equivalent to more than $76,000 (US). Appellant's unsuccessful appeal focused primarily on the judge's instructions to the jury and on statements by counsel during closing arguments. PA Media reports on the decision.

Wednesday, November 29, 2023

EU Court OK's Neutral Ban on Employees Wearing Any Symbol of Belief

In Request for a preliminary ruling under Article 267 TFEU from the tribunal du travail de Liège (Labour Court, Liège, Belgium), (EUCJ, Nov. 28, 2023), the European Union Court of Justice, interpreting Council Directive 2000/78 (Equal Treatment in Employment) held:

an internal rule of a municipal authority prohibiting, in a general and indiscriminate manner, the members of that authority’s staff from visibly wearing in the workplace any sign revealing, in particular, philosophical or religious beliefs may be justified by the desire of the said authority to establish, having regard to the context in which it operates, an entirely neutral administrative environment provided that that rule is appropriate, necessary and proportionate in the light of that context and taking into account the various rights and interests at stake....

The Court also issued a press release summarizing the decision.

Jewish Groups Sue Over Berkeley Law Student Organizations' Antisemitic Policies

Suit was filed yesterday in a California federal district court against the University of California at Berkely and Berkeley Law School challenging growing antisemitic discrimination and harassment on campus. The complaint (full text) in Louis D. Brandeis Center, Inc. v. Regents of the University of California, (ND CA, filed 11/28/2023), alleges that policies of law student organizations violate the Equal Protection and Free Exercise Clauses, violates the §1981 right to contract and violates Title VI of the 1964 Civil Rights Act. The complaint alleges in part:

4. In spite of the recognition of anti-Zionism as a form of anti-Semitism, no fewer than 23 Berkeley Law student organizations have enacted policies to discriminate against and exclude Jewish students, faculty, and scholars. For example:

• To be a member of Women of Berkeley Law, the Queer Caucus at Berkeley, or the Asian Pacific American Law Students Association, Jewish students must accede to the groups' support of the Boycott Divestment and Sanctions movement, which seeks to dismantle the modern State of Israel;

• In order to volunteer to provide pro bono legal services through a number of Berkeley Law Legal Services organizations, Jewish students must undergo a "Palestine 101" training program that emphasizes the illegitimacy of the State of Israel;

• And to speak to any of these student organizations, invited speakers must first repudiate Zionism under a bylaw that prohibits speakers who hold Zionist views (the "Exclusionary Bylaw"). In fact, the Berkeley Journal of Gender, Law, and Justice, goes one step further, prohibiting Zionists not only from speaking to its members but from publishing in its pages.

5. Under these policies, Jewish students, faculty, and guest speakers must deny a central part of their cultural, ancestral heritage and a fundamental tenet of their faith in order to be eligible for the same opportunities Berkeley accords to others....

118. Specifically, Defendants have selectively chosen not to enforce Berkeley's all-comers policy and Policy on Nondiscrimination against student organizations in the Law School and the undergraduate campus that have discriminated against or excluded Jewish members of the school community from participating in organizations, programs, and activities. For similar reasons, Defendants' decision not to enforce the Policy on Nondiscrimination against these groups where they refuse to accept Jewish speakers is unlawful.,,,

Politico reports on the lawsuit.

Tuesday, November 28, 2023

2nd Circuit: 1st Amendment Free Exercise Claim Requires Only "Burden", Not "Substantial Burden" On Religion

In Kravitz v. Purcell, (2d Cir., Nov. 27, 2023), the U.S. 2nd Circuit Court of Appeals held that unlike suits under RFRA, an inmate alleging a 1st Amendment violation of his religious freedom need not show a "substantial burden" on his sincere religious beliefs, but only a "burden." The suit was brought by an inmate whose observance of the Jewish holiday of Shavuot was impaired by harassment of prison correctional officers. As described by the court:

The admissible evidence shows that Kravitz was unable to observe his religious holiday due to the abusive conduct of corrections officers. On the first night, corrections officers obstructed all communal prayer and threw paper bags at the inmates, “laughing and say[ing], here is your kosher meal. You Jew, blah, blah, and F-U.” ... On the second night, an officer interrupted Kravitz’s prayer after approximately thirty seconds, stating, “I don’t want to hear that. You need to stop and get eating that food. I got things to do.” ...

In vacating the district court's grant of summary judgment, the court said in part:

When we are considering government policies that are not neutral and generally applicable—that is, policies that discriminate against religion rather than burden it incidentally—there is no justification for requiring a plaintiff to make a threshold showing of substantial burden. “The indignity of being singled out for special burdens on the basis of one’s religious calling is so profound that the concrete harm produced can never be dismissed as insubstantial...."

... The district court erred in deciding that the burden on Kravitz’s observance was insufficient to establish an infringement of his right to free exercise under the First Amendment. The district court could reach that conclusion only by deciding that thirty seconds of prayer or a blessing over bread suffices for Shavuot observance. But what the observance of Shavuot entails is beyond the competence of a federal court.

Attorney Fee Award to Freedom from Religion Foundation of $342K Recommended.

In another demonstration of the high cost to governmental entities of litigating First Amendment claims, a Texas federal magistrate judge in Freedom from Religion Foundation v. Abbott, (WD TX, Nov. 27, 2023) has recommended an award of attorneys' fees to FFRF of $342,566 (plus costs of $3,957). At issue in the case was the removal of FFRF's "Bill of Right Nativity Exhibit" from the Texas state capitol. The case twice made its way to the 5th Circuit Court of Appeals (see prior postings 1, 2).

Kapparot Protesters Lose Suit Against City

In Karlan v. City of Los Angeles, (CA App., Nov. 27, 2023), a California state appellate court affirmed the dismissal of a lawsuit brought by protesters who objected to an Orthodox synagogue's pre-Yom Kippur kapparot ritual in which chickens are killed and their carcasses are discarded. According to the court:

The complaint alleged the City abused its discretion and endorsed the exercise of religion by refusing to enforce Penal Code section 597, which prohibits the intentional and malicious killing of animals, against Kapparot practitioners. The complaint also alleged violations of the Tom Bane Civil Rights Acts ... and the Ralph Civil Rights Act of 1976... against Captain Vernon for his threats to arrest appellants if they used a projector or amplified sound during their protest....

The order appellants seek in this case—“to compel [the City] ‘to make enforcement decisions without regard to religion’”—would control the manner in which the City exercises its discretion to enforce criminal laws. This type of order is barred under the rule codified in Civil Code section 3369....

Appellants here fail to demonstrate how the City acted unreasonably and arbitrarily. Appellants admit their purpose in filing this action was to obtain a ruling as to whether “religious motivation [can lawfully] create[ ] an exemption from prosecution” under Penal Code section 597. Appellants’ pursuit of a definitive ruling means the issue remained unsettled at the time the City made its choice not to enforce the law....

... Appellants identify no allegation in which Captain Vernon threatened them with violence beyond his threats of arrest. Without more, appellants have failed to plead sufficient facts to establish violations under the Bane and Ralph Act....

Appellants finally contend ... violation of the Establishment Clause..... Raised for the first time on appeal, appellants contend they have taxpayer standing to assert this claim. Appellants’ failure to present this theory in the trial court and adequately brief the issue on appeal has forfeited the argument....

Monday, November 27, 2023

Australian State's Religious Vilification Act Takes Effect

As reported by Law and Religion Australia, the New South Wales Religious Vilification Act 2023 (full text) which was enacted in August took effect on November 11. The law provides in part:

It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for or severe ridicule of—

(a) a person on the ground the person— (i) has, or does not have, a religious belief or affiliation, or (ii) engages, or does not engage, in religious activity, or

(b) a group of persons on the ground the members of the group— (i) have, or do not have, a religious belief or affiliation, or (ii) engage, or do not engage, in religious activity.

Among the exceptions in the law are:

[A] public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of an act or matter.