Religion Clause

Wednesday, May 25, 2022

University's Vaccine Mandate Did Not Violate Free Exercise Rights Of Students

In America's Frontline Doctors v. Wilcox, (CD CA, May 5, 2022), a California federal district court dismissed the associational plaintiff for lack of standing and rejected individual plaintiffs' free exercise challenge (as well as their other challenges) to the University of California Riverside's COVID vaccine mandate. The court said in part:

Plaintiffs contend that Defendants' enforcement of the Policy violates their right to free exercise of religion. The SAC alleges that Defendants "coerc[e] students to make an unnatural choice...either quickly injecting themselves...[with a COVID-19 vaccine] ... or ...disclosing under duress their religious beliefs to Defendants' religious exemption approval panels."... They also contend that Defendants "prejudicially segregate religious people in order to subject them to...testing."... Plaintiffs have religious exemptions from the Policy. Even so, Plaintiffs contend that testing and masks "substantially interfere with students' religious practices of prayer, speech, and deed."...

The Policy is a neutral and generally applicable. It applies to all students, professors, and staff at the University of California and seeks to protect public health and safety. Defendants offer exemptions for religious beliefs, medical reasons, and disability.... The Policy's exemptions pass constitutional muster.... Plaintiffs allege that they requested religious exemptions under "duress" but fail to explain how their decisions to voluntarily submit a one-page exemption form were executed under "duress." Plaintiffs also fail to describe how masks and testing interfere with the students' religious practices of prayer, speech, and deed. Plaintiffs are only required to mask while indoors—a restriction that also applied to vaccinated students at the time the SAC was filed. Presumably Plaintiffs would be indoors to attend class, so it is unclear how the Policy interferes with religious practices.

Anti-SLAPP Motion Denied In Suit Against Archdiocese Over Priest's Molestation of Children

In Ratcliff v. Roman Catholic Archbishop of Los Angeles, (CA App., May 19, 2022), a California state appellate court affirmed the denial of an anti-SLAPP motion sought by the Los Angeles Archdiocese. The court explained:

Seven adults allege they were molested by a priest when they were children. They brought suit against The Roman Catholic Archbishop of Los Angeles and related entities ..., alleging defendants were vicariously liable for ratifying the molestation and directly liable for their own negligence in failing to supervise the priest, and related acts and omissions. The Archdiocese moved to strike the operative complaint under the anti-SLAPP law (Code Civ. Proc., § 425.16), arguing that some of the acts by which it purportedly ratified the molestation or acted negligently constituted speech or litigation conduct protected by the anti-SLAPP statute....

The court concluded however that:

The Archdiocese, both in its anti-SLAPP motion before the trial court, and in its briefing on appeal, goes to great lengths to overlook the actual allegations of ratification, namely the acts of failing to investigate and supervise (and, instead, transferring to different parishes)...

The four purported negligence claims identified by the Archdiocese have one key factor in common: they are all based on a decision not to speak, not speech itself.... We conclude the failure to speak alleged as a basis for liability here is not conduct in furtherance of the right of free speech.

Report Ranks Large Corporations' Commitment To Religious Diversity and Inclusion

On Tuesday. the Religious Freedom & Business Foundation released its third annual report on the Fortune 500’s Commitment to Workplace Religious Inclusion. (Summary)(Full Text). The top four companies in its Corporate Religious Equity, Diversity & Inclusion (REDI) Index 2022 are: American Airlines, Intel, Dell Technologies and PayPal.

New York Enacts One-Year Window To Bring Old Adult Sex Abuse Cases

Yesterday New York Governor Kathy Hochul signed S66A (full text), a bill which creates a one-year window to bring previously time-barred civil actions for sexual assaults that were committed on an adult. New York Post reports on the bill. Previously, in 2019, New York enacted the Child Victims Act applying to prior child sexual abuse. (See prior posting.)

Tuesday, May 24, 2022

Dispute Over Kosher Certification Agencies Dismissed On Ecclesiastical Abstention Grounds

In Chimichurri v. Vaad Hakashrusof the Five Towns Far Rockaway, (Sup Ct Nassau Cnty NY, May 17, 2022), a New York state trial court dismissed on ecclesiastical abstention grounds a suit by a restaurant owner against a kosher certification agency. The monopoly of a community-wide certification agency was broken when two rabbis formed a competing agency. 53 rabbis issued a letter urging members of the community not to patronized establishments certified by the new agency. A restaurant making use of the new agency sued, claiming the letter cost it $156,000 per year in revenue. In dismissing the suit, the court said in part:

Here, the dispute is essentially one that involves the religious principles concerning the Kashrut, or Jewish dietary laws. Cases have long recognized that such disputes are ecclesiastical in nature....

It is apparent that the Defendant represents the efforts of the Five Towns and Rockaway community to break away from the historical disagreement over the laws of Kashrut and to develop generally agreed upon standards for that particular community. The Plaintiff chose to deviate from that. This Court is precluded, by the First Amendment, from considering the merits of the Plaintiff’s contentions arising from these facts.

The Forward reports on the decision.

Cert. Denied In Challenge To NY Repeal Of Religious Exemption To School Vaccinations

The U.S. Supreme Court yesterday denied review in F.F. v. New York, (Docket No. 21-1003, certiorari denied 5/23/2022). (Order List). In the case, a New York state appellate court rejected parents' constitutional challenges to New York's repeal of the religious exemption from mandatory vaccination for school children. (See prior posting). SCOTUSblog's case page has links to the filings in the case. Christian Post reports on the denial of certiorari.

European Court Upholds Custody Order Barring Father From Involving Daughter In Jehovah's Witness Practices

In T.C. v. Italy, (ECHR, May 19, 2022), the European Court of Human Rights in a 5-2 Chamber Judgment upheld an Italian court's order in a custody case in which an 8-year old's mother who was a nominal Catholic, and who had the daughter enrolled in catechism classes, objected to the girl's father involving her in his Jehovah's Witness religion. The court ordered the father to refrain from actively involving the daughter in his religion. The European Court rejected the father's argument that the Italian court's order disproportionately interfered with his right to family life and his freedom of religion. The European Court said in part:

[I]n the present case the domestic courts ... had regard above all to the child’s interests. The child’s interests lay primarily in the need to maintain and promote her development in an open and peaceful environment, reconciling as far as possible the rights and convictions of each of her parents.

... [I]nvolving E.[the daughter] in the applicant’s religious practices would destabilise her in that she would be induced to abandon her Roman Catholic religious habits....

... [T[he contested measure had little influence on the applicant’s religious practices and was in any event aimed solely at resolving the conflict arising from the opposition between the two parents’ educational concepts, with a view to safeguarding the child’s best interests.

The Court also published a summary of its decision. Law & Religion UK has more on the decision.

Monday, May 23, 2022

Report Finds Southern Baptist Convention Mishandled Sexual Abuse Allegations

Yesterday, the report of an independent investigation into the Southern Baptist Convention Executive Committee’s Response to Sexual Abuse Allegations was released. The 288-page report (full text) (Appendix 1 & 2) summarizes its findings in part:

For almost two decades, survivors of abuse and other concerned Southern Baptists have been contacting the Southern Baptist Convention (“SBC”) Executive Committee (“EC”) to report child molesters and other abusers who were in the pulpit or employed as church staff. They made phone calls, mailed letters, sent emails, appeared at SBC and EC meetings, held rallies, and contacted the press…only to be met, time and time again, with resistance, stonewalling, and even outright hostility from some within the EC.

Our investigation revealed that, for many years, a few senior EC leaders, along with outside counsel, largely controlled the EC’s response to these reports of abuse. They closely guarded information about abuse allegations and lawsuits, which were not shared with EC Trustees, and were singularly focused on avoiding liability for the SBC to the exclusion of other considerations. In service of this goal, survivors and others who reported abuse were ignored, disbelieved, or met with the constant refrain that the SBC could take no action due to its polity regarding church autonomy – even if it meant that convicted molesters continued in ministry with no notice or warning to their current church or congregation....

The Report also disclosed:

During the course of our investigation, an SBC pastor and his wife came forward to report that former SBC President Johnny Hunt (2008-2010), who was the immediate past SBC President at the time, had sexually assaulted the wife on July 25, 2010. The allegations include grooming of the wife during Dr. Hunt’s term as SBC President. At the time of the allegations, Dr. Hunt was also Senior Pastor at First Baptist Church, Woodstock, Georgia.

The Report also sets out a series of recommendations to improve SBC's response to sexual abuse and misconduct allegations in the future.

Houston Chronicle has more on the Report.

Appeals Court Asked To Dismiss Michigan Abortion Law Challenge

As previously reported, In Planned Parenthood of Michigan v. Attorney General of the State of Michigan, the Michigan Court of Claims issued a preliminary injunction barring enforcement of the state's 1931 pre-Roe abortion ban while a challenge to that law under the Michigan state constitution is being litigated. On Friday, instead of filing an appeal in that case, plaintiffs filed a Complaint (full text) with the Michigan Court of Appeals captioned In re Jarzynka, (Ct. App., filed 5/20/2022) seeking an Order of Superintending Control and filed a Motion for Immediate Consideration. In the Complaint, petitioners allege:

Judge Gleicher refused to dismiss the case for lack of jurisdiction even though the Attorney General—a preeminent supporter of abortion rights—admits there is no adversity between the parties or actual controversy because the Attorney General refuses to defend or enforce the challenged law. The ACLU and Planned Parenthood’s claims are obviously moot and not ripe.

Prosecutors Jarzynka and Becker, Right to Life of Michigan, and the Michigan Catholic Conference respectfully ask this Court to issue an order of superintending control requiring the Hon. Elizabeth Gleicher of the Court of Claims to dismiss the case for lack of jurisdiction. Doing so will not prevent other adverse cases from moving forward....

At a minimum, Prosecutors Jarzynka and Becker, Right to Life of Michigan, and the Michigan Catholic Conference respectfully ask the Court to issue an order vacating the preliminary injunction order and requiring Judge Gleicher to adhere to the objective appearance-of-impropriety standard and recuse herself.

ADF issued a press release announcing the filing.

Sunday, May 22, 2022

NYT Details Russian Orthodox Patriarch's Important Support For Invasion Of Ukraine

The New York Times yesterday posted a long article detailing the crucial support given by Russian Orthodox Church leader Patriarch Kirill I to Vladimir Putin's actions in Ukraine, saying in part:

Patriarch Kirill I has provided spiritual cover for the invasion of Ukraine, reaping vast resources for his church in return. Now, in an extraordinary step, the E.U. is threatening him with sanctions....

Kirill has called Mr. Putin’s long tenure “a miracle of God,” and has characterized the war as a just defense against liberal conspiracies to infiltrate Ukraine with “gay parades.”...

Kirill has in recent years aspired to expand his church’s influence, pursuing an ideology consistent with Moscow being a “Third Rome,” ... in which Mr. Putin’s Russia would become the spiritual center of the true church after Rome and Constantinople.

It is a grand project that dovetails neatly with — and inspired — Mr. Putin’s mystically tinged imperialism of a “Russkiy Mir,” or a greater Russian world.

Saturday, May 21, 2022

Archbishop Bars Pelosi From Communion Because Of her Support For Abortion Rights

On Thursday, San Francisco Catholic Archbishop Salvatore J. Cordileone formally notified Nancy Pelosi, Speaker of the House of Representatives, of the consequences under Church law of her support for codifying Roe v. Wade into law:

you are not to present yourself for Holy Communion and, should you do so, you are not to be admitted to Holy Communion, until such time as you publically repudiate your advocacy for the legitimacy of abortion and confess and receive absolution of this grave sin in the sacrament of Penance.

The Notification (full text) also says in part:

The Second Vatican Council, in its Decree on the Church in the Modern World, Gaudium et spes, reiterated the Church’s ancient and consistent teaching that “from the first moment of conception life must be guarded with the greatest care while abortion and infanticide are unspeakable crimes”....

... A Catholic legislator who supports procured abortion, after knowing the teaching of the Church, commits a manifestly grave sin which is a cause of most serious scandal to others....

The Archbishop also sent a lengthy Letter to the Faithful (full text) explaining his action, saying in part:

Please know that I find no pleasure whatsoever in fulfilling my pastoral duty here. Speaker Pelosi remains our sister in Christ. Her advocacy for the care of the poor and vulnerable elicits my admiration. I assure you that my action here is purely pastoral, not political.

He also sent a Letter to the Priests of the Archdiocese (full text) explaining the Canon Law basis of his decision and giving them further background. It reads in part:

Canon 915 is found in Book IV of the Code of Canon Law, which has to do with the Sanctifying Office of the Church. It is not in Book VI, which is the Church’s legislation on penal law. Thus, this is not a sanction, or a penalty, but rather a declaration of fact: the Speaker is “obstinately persevering in manifest grave sin” (canon 915). A sanction, on the other hand, such as excommunication, has its own particular process and reasons for being applied. This is quite distinct from the application of canon 915....

Let us not fool ourselves: this is, essentially, a spiritual battle. It is not poetic rhetoric to call the proliferation of abortion demonic. The prophets of old excoriated the people of Israel when they passed over to the worship of Moloch, sacrificing their children to this pagan idol (cf. Lev 18:21; Lev 20:2; Ps 106:37-38). Recall that in the biblical mentality, pagan idols are synonymous with demons. It should come as no surprise, then, that the first one to challenge the Texas heartbeat law was the Satanic Temple, and precisely on the grounds of denial of religious freedom: they need abortion to carry out their rituals....

In closing, allow me to observe that what we are facing in this particular moment of history is a powerful reminder to us that the Priesthood is not for the faint-hearted. Of course, it never was. But for a long time, up until recently, we lived in a society that allowed us to imagine that it was. Let us not fool ourselves any longer.

NPR reports on the Archbishop's action.

Friday, May 20, 2022

House Overwhelmingly Passes Resolution Condemning Antisemitism

On Thursday, the U.S. House of Representatives by a vote of 420-1 passed House Resolution 1125 (full text) condemning rising antisemitism. Among the various actions called for by the Resolution, it:

(1) calls on elected officials, faith leaders, and civil society leaders to use their bully pulpit to condemn and combat any and all manifestations of antisemitism;

(2) calls on elected officials to condemn and combat any and all denials and distortions of the Holocaust and to promote Holocaust and antisemitism education;...

(5) calls on social media platforms to institute stronger and more significant efforts to measure and address online antisemitism while protecting free speech concerns;

The only Representative voting against the Resolution was Thomas Massie of Kentucky. Seven Representatives were listed as "not voting." JNS reports on the Resolution.

Court Denies Relief To Air Force Members With Religious Objections To COVID Vaccine

In a 61-page opinion in Roth v. Austin, (D NE, May 18, 2022), a Nebraska federal district court denied a preliminary injunction to 36 members of the Air Force, Air Force Reserve and Air National Guard who have religious objections to complying with the military's COVID vaccine mandate. The court said in part:

One objection made by several airmen is that part of the science giving rise to approved COVID19 vaccines involved use of research derived from aborted fetal cell tissue that was developed decades ago. Certain major religions of the world have long strenuously objected to the use of such research in medicine. However, having lost that battle in significant regard over the decades, many of those same religions have concluded that the remote impact of what they deem to be religiously or ethically objectionable research utilized for the vaccines does not support refusal to take the vaccines on religious grounds today....

The Court concludes, at least at this preliminary stage, that the Air Force has demonstrated it has a compelling interest in the health and readiness of its forces, including individual service members like Plaintiffs. The Court also concludes that the Air Force’s COVID-19 vaccination mandate is the least restrictive means of furthering that compelling interest, as to both the Air Force generally and as to individual Plaintiffs in particular. The Air Force has demonstrated that its process for consideration of religious exemptions was not simply “theater” or “a sham,” but was a process that adhered to the requirements of the law, most specifically RFRA. These conclusions mean that Plaintiffs do not have sufficient likelihood of success on the merits of either their RFRA claim or their Free Exercise of Religion claim to warrant issuance of a preliminary injunction.

Yesterday a notice of appeal to the U.S. 8th Circuit Court of Appeals was filed.

Employee Sues After Being Fired For Religious Objection To Rainbow As Gay Pride Symbol

Suit was filed this week in an Iowa federal district court by a former employee of a metal engineering and manufacturing company who says he was fired for expressing his Christian beliefs. The complaint (full text) in Snyder v. Arconic, Inc., (SD IA, filed 5/18/2022), charges religious discrimination and retaliation in violation of Title VII and state law. It alleges:

In June 2021, in attempting to respond to an anonymous company survey, Mr. Snyder briefly commented that the company’s use of the rainbow to promote “Gay Pride Month” was “an abomination to God,” as the rainbow “is not meant to be a sign for sexual gender.”

... Arconic informed Mr. Snyder that his comment had been posted publicly on the company “intranet”—which was not Mr. Snyder’s intent—and that it had offended a fellow employee. Mr. Snyder was summarily suspended and then terminated, allegedly for violating the company’s “diversity policy.”

Thomas More Society issued a press release announcing the filing of the lawsuit.

Posting Of National Motto In School Does Not Violate Establishment Clause

In JLF v. Tennessee State Board of Education, (MD TN, May 18, 2022), a Tennessee federal district court upheld Tennessee's statute that requires all public schools to post the national motto "In God We Trust" in a prominent location. The law was challenged under the Establishment Clause by the father of a kindergartener on behalf of his daughter whose school has posted the motto as part of a display in the entryway to the school. The court said in part:

The court finds ... in light of the substantial body of law ... repeatedly concluding in a variety of contexts that the national motto has a secular purpose and that its display does not violate the Establishment Clause, that the Lemon test is of limited utility in this context.... The fact that the display is in a public school does not require enhanced scrutiny.... [T]he posting of the national motto in schools “involves no coercion,” “does not purport to compel belief or acquiescence,” “does not command participation in any form of religious exercise,” “does not assert a preference for one religious denomination or sect over others, and it does not involve the state in the governance of any church.”...

Oklahoma Legislature Bans Most Abortions From Time Of Fertilization

The Oklahoma legislature yesterday gave final passage to HB4327 (full text), a bill that bans abortions beginning at the time of fertilization. However, it does not ban Plan B, morning-after pills, or any other type of contraception or emergency contraception. It also contains exclusions for abortions to save the life of the mother in a medical emergency resulting from a physical condition, or in cases of rape, sexual assault or incest, and for procedures aimed at saving the life or health of the unborn child or removing a fetus in case of a miscarriage or ectopic pregnancy.

Enforcement is solely by private lawsuits for injunctions or damages of not less than $10,000. Suit may be brought against anyone (other than the mother) who performs and abortion, or aids and abets procurement of an abortion, including anyone who reimburses the costs of an abortion through insurance or otherwise. State courts are deprived of jurisdiction over suits to prevent a private person from suing. Civil actions under the law are not covered by the Oklahoma Religious Freedom Act, but the Act should not be construed to authorize a government entity to substantially burden any religious belief. KJRH News reports on the bill. Earlier this year, Oklahoma enacted a ban on abortions after six weeks of pregnancy. (See prior posting.)

Thursday, May 19, 2022

Biden Issues Greetings To Buddhists Celebrating Vesak

Earlier this week, President Biden issued a Statement (full text) extending warm wishes to Buddhists in the United States and around the world celebrating Vesak. The Statement says in part:

This sacred day is a time to reflect on the Buddha’s teachings, including the need to work for peace and justice, recognize our common humanity, respect and preserve the nature that surrounds us, and cultivate humility and compassion.

Vesak was celebrated this year on May 16.

South Carolina Governor Signs Law On Transgender Students In Sports

On Monday, South Carolina Governor Henry McMaster signed H4608, the Save Women's Sports Act (full text). The law requires school athletic teams to be designated based on biological sex at birth of team members, and provides in part:

(2) Athletic teams or sports designated for males, men, or boys shall not be open to students of the female sex, unless no team designated for females in that sport is offered at the school in which the student is enrolled.

(3) Athletic teams or sports designated for females, women, or girls shall not be open to students of the male sex.

The law applies to interscholastic, intercollegiate, intramural, or club athletic teams or sports that are sponsored by a public elementary or secondary school or public postsecondary institution, and to private school teams that compete against public schools. Washington Examiner reports on the new law.

In Israel, Jewish Group Sues Haredi News Site Over Policy On Photos Of Women

Times of Israel reported yesterday that the Israel Religious Action Center, a branch of the Judaism's Reform movement, is suing an ultra-Orthodox Jewish news website in Israel for $100,000(US) in damages because of its policy of digitally blurring faces of females in news photos it posts. Last year, the news site B'hadrei Haredim blurred the faces of female leaders of Jewish movements in a photo of their meeting with Israel's President Isaac Herzog. A number of Orthodox news sites follow this policy in order to observe religious doctrines regarding modesty.