Michigan Supreme Court Adopts New Rule Requiring Use of Preferred Pronouns, or Respectful Alternative

In Amendment of Rule 1.109 of the Michigan Court Rules, (MI Sup. Ct., Sept. 27, 2023), the Michigan Supreme Court by a vote of 5-2 adopted a Rule requiring Michigan courts to use the name and personal pronouns listed by parties and attorneys on pleadings in the case when addressing, referring to or identifying a party or attorney orally or in writing. Alternatively, the court may use "other respectful means of address not inconsistent with the individual’s designated salutation or personal pronouns." Two Justices filed opinions concurring in the adoption of the Rule, and two other Justices filed dissents. Justice Welch, concurring, said in part:

[P]eople object to honoring a person’s specified pronouns on the basis that they do not personally agree with the notion that someone can switch genders or be nonbinary. This was the subject of a great deal of the input we received after publishing the proposed amendments. Whether for religious or other reasons, many comments reflected a personal belief that gender could not change. But the rule provides that “other respectful means” can be used to address a party who makes a specific pronoun request. Certainly, asking our judges to be respectful to litigants using other general neutral means (such as addressing a party as “Attorney Smith” or “Plaintiff Smith”) does not force anyone to violate their beliefs.

Justice Bolden concurring said in part:

Some commenters have raised First Amendment concerns, arguing that the amendment compels speech and/or infringes upon religious liberty. However, Code of Judicial Conduct, Canon 2(A) ...requires judges to “accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and [they] should do so freely and willingly.”... Similarly, the United States Supreme Court has explained that government employees have certain limitations on their freedom that they must accept in the workplace....

Justice Zahra, dissenting, said in part:

Some believe that the use of preferred pronouns is simply a matter of courtesy and that those who oppose it are stubborn, perhaps even bigoted. Others, however, believe they should not be compelled, especially under oath and/or in conflict with their deeply held religious beliefs, to affirm a person’s preferred pronouns that are inconsistent with the biological gender on that person’s birth certificate. All told, this is a fluid political debate into which our judicial branch of state government should not wade, let alone dive headfirst and claim to have resolved. Such hubris has no place within the operation of a judicial branch of state government. As aptly stated by the Catholic Lawyers Society of Metropolitan Detroit, “[t]he Court should decline to insert itself into one of the most controversial social issues of our time, declare a winner, dismiss objections as mere products of bigotry, and threaten to punish dissenters whilst ignoring their constitutional rights.” I am deeply troubled by the Court’s willingness to do so.

Justice Viviano, dissenting, said in part:

... [A]ll the arguments that the concurrences employ against the constitutional concerns with the present action could in turn be employed to support the opposite rule. I have my doubts that the majority would be so cavalier about the First Amendment implications of their actions if the shoe was on the other foot.

CBS Detroit reports on the new rule.

Israel's High Court Orders Government To Explain Its Inaction Against Top Rabbi's Hateful Remarks

 Times of Israel and Jerusalem Post report that on Tuesday Israel's Supreme Court, sitting as the High Court of Justice, issued a temporary injunction ordering the government to explain why it has not taken disciplinary action against Jerusalem's Sephardi Chief Rabbi Shlomo Amar for the severely derogatory remarks he has made about Reform Judaism, the LGBTQ community and the Women of the Wall Movement.  For example, Amar has blamed small earthquakes in Israel earlier this year on the LGBTQ community and has called Reform Jews "evil people who do every injustice ... against the Torah." Petitioners-- the Reform Movement, the Women of the Wall, and the Jerusalem Open House for Pride and Tolerance-- say they have asked the government to take action 16 times in the last four years, but nothing was done.

Employees Failed to Show Sincere Religious Beliefs for Vaccine Exemptions

In Gardner-Alfred v. Federal Reserve Bank of New York, (SD NY, Sept. 25, 2023), a New York federal district court dismissed RFRA, Title VII and First Amendment claims by two Federal Reserve Bank employees who were denied religious exemptions from the FRB's Covid vaccine mandate.  The court, in a 52-page opinion, concluded that neither Lori Gardner-Alfred nor Jeanette Diaz had demonstrated that their objections to the vaccine were based on sincere religious beliefs. The court said in part:

Gardner-Alfred claims to be a member of the Temple of Healing Spirit, which is a belief system that she describes as “oppos[ing] the invasive techniques of traditional Western medicine.” ...

Defendant argues that no reasonable jury could find that Gardner-Alfred’s objections to the vaccine were grounded in sincerely held religious beliefs.,,,  Defendant argues that there is no evidence Gardner-Alfred enjoyed any relationship with the Temple of Healing Spirit beyond paying for a vaccination exemption package and that her medical history, both before and after she made her request for a religious accommodation, is inconsistent with her alleged religious beliefs....

 No reasonable jury thus would be able to conclude that her claimed religious beliefs were anything other than contrived....

... [T]here is undisputed evidence that Diaz would have a motive to “fraudulently hid[e] secular interests behind a veil of religious doctrine.”... Diaz submitted her accommodation request days after attending a secular anti-vaccination webinar featuring materials entitled “White Paper—Experimental Covid Vaccines,” and “Review of Ivermectin Efficacy.”...  [S]he subscribed to at least eight newsletters, which sent her several hundred emails, from sources opposing the vaccine on secular grounds.... 

There also is evidence of Diaz acting in a manner inconsistent with her claimed religious views.... Diaz concedes that she has on many occasions taken medications and received injections without first checking whether they contain or were made or manufactured with aborted fetal cell lines...

Diaz further does not dispute that the views that she now claims to hold are different from those held by the church of which she claims to be a member..... 

... She bases her objection on the letter she received from the Colorado Catholic Conference, an organization with which she had no prior affiliation and has no current affiliation.... The letter is available for download from the internet from anyone who seeks it....

DOJ Announces Outreach Programs on RLUIPA

In a press release last Friday, the Justice Department announced that to mark the 23rd anniversary of the Religious Land Use and Institutionalized Persons Act, it will hold a series of outreach events to highlight the Department's enforcement efforts, saying in part:

The department’s first RLUIPA outreach event will take place at Seton Hall Law School in Newark, New Jersey, on Oct. 30. The event will include remarks from officials with the Justice Department’s Civil Rights Division, the U.S. Attorney’s Office for the District of New Jersey, religious leaders in New Jersey whose organizations have benefited from RLUIPA’s protections and attorneys who have experience litigating RLUIPA cases. The department will host additional events across the country in the coming months, including in California and Michigan.

The Department has also posted updated material about RLUIPA, including information on identifying and reporting violations.

President Sends Yom Kippur Greetings

The White House today posted a Statement from President Biden (full text) sending best wishes for Yom Kippur to Jewish communities in the United States, Israel and around the world.  The Statement says in part:

The blessing of Yom Kippur is that it is not just a day of reflection, repentance, and reverence – but a day of transformation, forgiveness, and hope. God invites us to write a new chapter in the story of our lives, and in the life of our nation. As the High Holidays conclude, let us all summon the courage to make the changes required to bridge the gap between the world we see and the world we seek.

Yom Kippur begins at sundown this evening. 

Recent Articles of Interest

From SSRN:

• Rabiat Akande & Faisal Bhabha, Insulating the Church: Ethiopian Orthodox Church of Canada v. Aga and the Suppression of Public Law in the Construction of Religious Communities, (Osgoode Legal Studies Research Paper Forthcoming, (2023) 108 SCLR (2d) 191 - 212).
• Rabiat Akande, An Imperial History of Race-Religion in International Law, (American Journal of International Law Forthcoming).
• Rabiat Akande, Centring the Black Muslimah: Interrogating Gendered, Anti-Black Islamophobia, (Forthcoming in Systemic Islamophobia in Canada : a Research Agenda. Edited by Anver M. Emon, University of Toronto Press, 2023).
• Nasrin Sultana, Women's Property and Inheritance Rights: Application of Laws from the Perspective of Two Major Religions in Bangladesh, (Social Science & Humanities Open (2023).
• Tejaswini Kaushal, Position Of Women In Indian Society In Light Of Divorce And Allied Laws: A Critical Discourse (September 30, 2022).
• Rabiat Akande, The Construction of Minorities: Self-Determination and the Legal Politics of Religious Difference in Late Northern Nigeria, circa 1949-1960, (Forthcoming, in Religion, Race and Democracy in Africa, University of Virginia Press (under review)).
• Sarah Craig, et. al., European Union Developments in Equality and Human Rights: The Impact of Brexit on the Divergence of Rights and Best Practice on the Island of Ireland, (Equality Commission for Northern Ireland and the Irish Human Rights and Equality Commission, 2022).
• Scott Skinner-Thompson, Trans Animus, (Boston College Law Review, Forthcoming).
• Helen Flannery & Brian Mittendorf, Charitable Objectives or Donor Interests? What Sponsor Language Reveals about Donor-Advised Fund Priorities and Resource Flows, (September 7, 2023).

From SmartCILP:

• Lydia E. Lavelle, Freedom of Speech: Freedom to Creatively Discriminate?, 29 Cardozo Journal of Equal Rights and Social Justice 69-110 (2022).
• Shlomo Pill & Ariel J. Liberman, Roadmap to Reconciliation II: Ruminations on the Need for Integrity in Intellectual Interfaith Engagement, 38 Touro Law Review 847-870 (2022).

Expanded Protection of Utah Lands Did Not Violate Establishment Clause

In Huck v. United States, (D UT, Sept. 21, 2023), a Utah federal district court rejected Establishment Clause, equal protection, due process and other challenges to Congress' 2019 designation of certain public lands in Utah as wilderness areas. The designation resulted in the lands being subject to more stringent use restrictions, including a ban on motor vehicles. Plaintiffs alleged that the designation was done to support Earth-religions and their beliefs regarding the ‘sacredness’ of public lands, in violation of the Establishment Clause. The court said in part:

 Given the recency of the Kennedy v. Bremerton School District decision, there is limited case law interpreting and applying the Supreme Court’s new [Establishment Clause] standard....

Recognizing these are relatively unchartered waters, the court considers Plaintiffs’ challenge with an eye toward the historical practice and understanding of the Establishment Clause and federal public lands management. While the concept of designated wilderness areas and motor vehicles might have seemed outlandish to the Founding Fathers, there is substantial legal authority supporting the federal government’s historically broad authority to designate public lands and restrict the public’s access to them. These actions, without more, do not raise the specter of government coercion of religious practices or observances....

Similarly, Plaintiffs have not plausibly alleged BLM’s motor vehicle restrictions violate “governmental neutrality between religion and religion, and between religion and nonreligion.”

The court also rejected plaintiffs' equal protection claim, saying in part:

Though Plaintiffs speculate that “[t]he BLM (as well as other . . . agencies) [conspired] with Earth-religionists [to] . . . deprive the aged, disabled or handicapped . . . from being able to access and travel upon many of the public lands,” these conclusory allegations—or speculations—fall short of satisfying Plaintiffs’ burden of alleging that the challenged actions were driven by discriminatory intent. On the contrary, Plaintiffs stress that the Dingell Act and motor vehicle restrictions were the result of the Earth-religionists’ efforts to “preserve and protect ‘Gaia’ or ‘Mother Earth,’” rather than an attempt to hinder the elderly or disabled.

Physician Assistant Can Move Ahead with Challenges to Her Dismissal for Her Views on Gender Identity

In Kloosterman v. Metropolitan Hospital, (WD MI, Sept. 20, 2023), a Michigan federal district court refused to dismiss a physician assistant's free exercise, equal protection and Title VII religious discrimination and failure to accommodate claims against a hospital that dismissed her for her unwillingness, on religious grounds, to refer gender transitioning patients for various drugs and procedures, or to use pronouns that do not correspond to a patient’s biological sex. Plaintiff asserted that as a Christian she believes that one’s sex is ordained by God and that one should not attempt to erase or to alter his or her sex.

The court concluded in part that:

Plaintiff plausibly alleges that Defendants’ hostility toward her religious beliefs motivated them to terminate her employment.

The court however dismissed certain other claims by plaintiff, including her free speech claim. 

First Liberty Institute issued a press release announcing the decision. 

4th Circuit Hears Oral Arguments on Catholic School's Firing of Teacher Who Entered Same-Sex Marriage

The U.S. 4th Circuit Court of Appeals on Wednesday heard oral arguments (audio of full oral arguments) in Billard v. Charlotte Catholic High School.  In the case, a North Carolina federal district court held that a Catholic high school is liable under Title VII of the 1964 Civil Rights Act for firing a substitute drama teacher after he entered a same-sex marriage and stated on Facebook his disagreement with Catholic teaching on marriage. (See prior posting.) As reported by Reuters, during oral argument the judges pressed the parties on the applicability of the ministerial exception doctrine, even though the school had stipulated that it would not raise the doctrine as a defense in order to avoid protracted discovery on the teacher's job duties.

New Decisions on Covid Vaccine Religious Objection Claims

Decisions have been handed down in the past few days in several cases in which employees who were denied a religious exemption or accommodation from an employer's Covid vaccine mandate have sued:

In Dicapua v. City of New York, (Richmond Cty. NY Sup. Ct., Sept 18, 2923), 16 employees of the Department of Education brought suit.  A New York state trial court held that ten of the employees should have been granted a religious exemption, saying in part:

This Court sees no rational basis for not allowing unvaccinated classroom teachers in amongst an admitted population of primarily unvaccinated students.

In Mora v. New York State Unified Court System, (SD NY, Sept. 19, 2023), a New York federal district court dismissed a suit by a Poughkeepsie City Court Judge, saying in part:

Here, the Vaccine Mandate has been repealed, and plaintiff has been reinstated to his full in-person duties. Therefore, plaintiff has not alleged an ongoing violation of federal law, or a need for prospective relief...

Damage claims were  dismissed in part on the basis of 11th Amendment immunity and in part because Title VII does not apply to government appointees on the policymaking level. His Free Exercise claim was denied because the vaccine mandate was a neutral, generally applicable rule. Retaliation and equal protection claims were also rejected.

In Trusov v. Oregon Health & Science University, (D OR, Sept. 20, 2023), an Oregon federal district court dismissed some of the claims brought by a registered nurse who was denied a religious accommodation, and deferred consideration of another of her claims.  The court said in part:

Regarding Defendants’ challenge to Plaintiff’s First Claim, alleging religious discrimination in employment, the Court finds that OHSU’s arguments about undue hardship must await a motion for summary judgment, at which time the Court may consider matters outside the pleadings and, if necessary, motions to exclude expert testimony. Regarding Defendants’ challenge to Plaintiff’s second claim brought under § 1983 against the individual Defendants, the Court dismisses that claim under the doctrine of qualified immunity. Regarding, Defendants’ challenge to Plaintiff’s request for prospective declaratory relief, the Court dismisses that request for lack of standing.

In Mathisen v. Oregon Health & Science University, (D OR, Sept. 19, 2023), an Oregon federal district court rejected claims brought by a research laboratory manager who was denied a religious exemption as well as a medical exemption. The court said in part:

In support of their motion to dismiss, Defendants argue that Plaintiff’s Title VII claim fails because OHSU offered to accommodate Plaintiff’s religious beliefs by offering an accommodation—masking—to which Plaintiff has alleged no objection based on religion....

Plaintiff’s assertion that masking would not promote safety is a secular objection, not a religious one. That objection, therefore, does not establish that the offered accommodation to her religious objection was not reasonable for purposes of her claim of religious discrimination.

Other of Plaintiff's claims were dismissed on qualified immunity and standing grounds.

Ohio Supreme Court Upholds Most of Ballot Board's Description of Reproductive Rights Initiative

In State ex. rel. Ohioans United for Reproductive Rights v. Ohio Ballot Board, (OH Sup. Ct., Sept. 19, 2023), the Ohio Supreme Court, in a per curiam opinion concurred in fully by Justice Fischer and (with a short opinion) by Donnelly, upheld most of the ballot language drafted by the Ohio Ballot Board to describe a Reproductive Freedom initiative that will be on the November ballot.  The Board substituted its description for the proponent's request that the full text of the amendment appear on the ballot. (See prior related posting.) The majority of the Court disapproved only the Ballot Board's substitution of "citizens of the State of Ohio" for the term "State" used in the proposed amendment.  One of the Ballot Board's changes approved by the majority was its substitution of the term "unborn child" for the term "fetus" in the text of the proposed amendment.  The majority said in part:

According to relators, “[o]ne’s judgment about the developmental stage at which the ethical status of ‘unborn child’ attaches has obvious implications for whether and how one believes abortion should be regulated.” Relators argue that the terms “fetus” or “fetal viability,” which appear in the proposed amendment’s text, are scientifically accurate and do not carry the same moral judgment as “unborn child.”

We reject relators’ argument. Importantly, relators do not argue that the term “unborn child” is factually inaccurate. To the contrary, their argument asserts that “unborn child” is a divisive term that elicits a moral judgment whereas the terms “fetus” and “fetal viability” are more neutral and scientific. But this argument does not establish that the ballot board’s language constitutes improper persuasion.

Justice Stewart and Justice Brunner each filed an opinion finding all of the Ballot Board's language unacceptable. Justice Brunner said in part:

A majority of respondent Ohio Ballot Board’s members ... obfuscated the actual language of the proposed state constitutional amendment by substituting their own language and creating out of whole cloth a veil of deceit and bias in their desire to impose their views on Ohio voters about what they think is the substance of the proposed amendment. And they did this by completely recrafting simple and straightforward amendment language into a version that contains more words than the amendment itself. The evidence in the record makes clear that it was their intent to use their positions on the board to influence the outcome of the election with the ballot language the board certified for the proposed amendment.

Justice Deters, in an opinion concurred in by Chief Justice Kennedy and Justice DeWine, concluded that they would have upheld all of the Ballot Board's language, saying that it "does not mislead, deceive, or defraud voters."

NBC News reports on the decision.

Suit Says High Schoolers Deceived Into Attending Christian Religious Event

Suit was filed this week in a Louisiana federal district court by two plaintiffs suing on behalf of themselves and their high-school age daughters alleging that the Baton Rouge school board and its superintendent, along with a Christian youth organization, in 2022 created a religious "Day of Hope" event that was falsely promoted to public school students and their parents as a college and career fair. The complaint (full text) in Roe v. East Baton Rouge Parish School Board, (MD LA, filed 9/19/2023), alleges in part:

When students, parents, and other volunteers arrived for the “Day of Hope” event ..., it very quickly became evident to them that the event was nothing like what had been advertised. The event immediately took the form of a Christian church service, with speakers and presenters praying and making repeated, overt appeals to Jesus and God.....

Later that morning, students were segregated by gender....  [P]resenters and facilitators of the event acted with hostility toward transgender and gender non-binary students, ... forcing them into either the male or female segregated gender group based on their outward appearance and without their consent....

While the boys competed in physical activity contests for prize money, girls were graphically lectured by pastors and other religious figures about virginity, rape, abuse, and suicide and were even told to “forgive” their rapists and abusers....

Intimidation and harassment of LGBTQ+ students at this church event were likewise rampant....

The suit alleges claims under the Establishment Clause as well as various civil rights and state law violations. BRProud reports on the lawsuit.

EEOC Sues Over Refusal of Religious Exemption from Vaccine Mandate For Remote-Working Emloyee

The EEOC announced yesterday that it has filed suit against the healthcare provider United Healthcare Services for refusing to grant a religious exemption from the company's Covid vaccine mandate to an employee whose duties were performed entirely remotely. The EEOC said in part:

“Neither healthcare providers nor COVID-19 vaccination requirements are excepted from Title VII’s protections against religious discrimination.”

European Court Says Homophobic Posting Was Not Protected by Human Rights Convention

 In Lenis v. Greece, (ECHR, Aug. 31, 2023), the European Court of Human Rights declared inadmissible an application filed by a former Metropolitan of the Greek Orthodox Church who contended that his Freedom of Expression protected by Article 10 of the European Convention on Human Rights was infringed when he was convicted by Greek courts of public incitement to violence or hatred against people because of their sexual orientation.  The European Court pointed out that:

Speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10 by virtue of Article 17 of the Convention.... The decisive points when assessing whether statements, verbal or non-verbal, are removed from the protection of Article 10 by Article 17 are whether the statements are directed against the Convention’s underlying values.... 

At issue was a homophobic article that the Metropolitan posted on his personal blog as Parliament was about to debate civil unions for same-sex couples. He titled the article "The Scum of Society Have Reared Their Heads! Let's Be Honest! Spit on Them". The Court said in part:

54.  ... [C]riticism of certain lifestyles on moral or religious grounds is not in itself exempt from protection under Article 10 of the Convention. However, when the impugned remarks go as far as denying LGBTI people their human nature, as in the present case, and are coupled with incitement to violence, then engagement of Article 17 of the Convention should be considered.

55.  ... [T]aking account firstly of the nature of the disputed article, which included incitement to violence and dehumanising hate speech ...; secondly, of the applicant’s position as a senior official of the Church who could influence many people; thirdly, of the fact that the views expressed in the article were disseminated to a wide audience through the Internet; and, fourthly, of the fact that they related directly to an issue which is of high importance in modern European society – protection of people’s dignity and human value irrespective of their sexual orientation – the applicant’s complaint does not, in the light of Article 17 of the Convention, attract the protection afforded by Article 10.

EEOC Sues Over Refusal of Religious Accommodation from Vaccine Mandate

The EEOC announced yesterday that it has filed a Title VII suit against Arkansas-based Hank’s Furniture, Inc. for refusing to grant an employee a religious exemption from the company's Covid vaccine mandate. According to the EEOC:

When the Pensacola assistant store manager requested an accommodation exempting her from the requirement due to her Christian beliefs, her store manager and immediate supervisor informed her that the company would strip her of her management position if she refused to comply with the policy, no matter the reason. Despite her verbal and written requests for a religious accommodation, which Hank’s Furniture could have honored without undue hardship, the EEOC says, the company denied her requests and terminated her employment.

Denying Inmate Permission to Marry Was RFRA Violation

In Davis v. Wigen, (3d Cir., Sept. 19, 2023), the U.S. 3rd Circuit Court of Appeals reversed a district court's dismissal of a RFRA claim brought by a former federal inmate and his fiancée.  The suit was brought against a private prison that primarily houses alien inmates claiming that the prison denied all inmate marriage requests, even when the inmate met the criteria set out in Bureau of Prison policies for approval of the request.  The court, finding that plaintiffs adequately alleged that the denials imposed a substantial burden on religious exercise, said in part:

The District Court dismissed Plaintiffs’ RFRA claim because they failed to allege that Defendants pressured Plaintiffs to either refrain from conduct that their faith prescribed or participate in conduct that their faith prohibited....  Because neither Christian tradition nor doctrine requires adherents to marry, Defendants argue that the denial of Plaintiffs’ marriage request did not cause them to violate any religious precept or belief....

Here, Plaintiffs desired to marry because marriage “had profound religious significance for them” and because they “viewed their marriage as an expression of” their Christian faith.... Although marriage may not be required of every Christian, Plaintiffs allege that their desire to marry has significant religious meaning for them. They contend that marriage is an expression of their faith. By denying Plaintiffs’ marriage request, Defendants caused them to refrain from such religious expression and thereby “violate their beliefs.”...

... While not every government-imposed hurdle to the practice of sincere faith-based conduct will be a substantial burden, the more proximate the government action is to an outright bar, the more likely it is a substantial burden. We conclude, therefore, that Plaintiffs have adequately alleged a substantial burden on their religious beliefs. 

Suit Challenges Federal Terrorist Watchlist

Suit was filed yesterday in a Massachusetts federal district court challenging the federal government's terrorist watchlist system.  In a 185-page complaint, 12 Muslim plaintiffs sued 29 federal officials claiming violations of the 4th and 5th Amendments, the Religious Freedom Restoration Act and the Administrative Procedure Act.  The complaint (full text) in Khairullah v. Garland, (D MA, filed 9/18/2023), alleges in part:

3. Plaintiffs were placed on the federal terrorist watchlist by Defendants’ interagency watchlisting system, which evaluates individuals for inclusion under a vague, rubberstamp-at-best standard that is satisfied nearly 100% of the time. Plaintiffs were not notified of their nomination to or inclusion in the watchlist. They have no idea why the government considers them worthy of permanent suspicion, have no opportunity to dispute the government’s decision or confront the supposedly derogatory information on which their placement is based....

5. The stigma and harm of watchlisting placement lasts a lifetime, even if Defendants eventually ... remove an individual from the watchlist. Several agencies retain records of past watchlist status and continue to use that historic status to deny formerly-listed individuals ...  security clearances, employment, access to government buildings, and other licenses and permissions....

9. ... Over 98% of the names on leaked portions of the watchlist from 2019 are identifiably Muslim.... Defendants consider origin from Muslim-majority countries, travel to Muslim-majority countries, attending mosques and Islamic events, zakat donations to Muslim charities, the wearing of typical Muslim dress, Muslim-sounding names, the frequency of Muslim prayer, adherence to Islamic religious practices, Islamic religious study, the transfer of money to individuals residing in Muslim-majority countries, affiliations with Muslim organizations, and associations with Muslims in the United States or abroad to be suspicious, and routinely nominate Muslims to the watchlist on the basis of those characteristics and activities....

12. Defendants create, maintain, administer, and use the watchlisting system without congressional approval and oversight, targeting Plaintiffs and thousands of other American Muslims in the shadowy corners of federal agency power.

CAIR announced its filing of the lawsuit as well as the release of its 2023 Muslim Community Travel Discrimination Survey.   VOA also reports on the lawsuit.

Prof's Suit Over Display of Prophet Muhammad Paintings Will Move Ahead In Federal Court On Religious Discrimination Claim

In López Prater v. Trustees of Hamline University of Minnesota, (D MN, Sept. 15, 2023), a Minnesota federal district court upheld defendant's removal to federal court of a suit initially filed against it in state court by an Adjunct Art Instructor at Hamline University whose teaching contract was not renewed after she showed slides of two classic paintings of the Prophet Muhammad in her World Art class. (See prior posting.) The court held that because many of plaintiff's allegations involve matters covered by the collective bargaining agreement, her state law claims are pre-empted by §301(a) of the federal Labor-Management Relations Act that creates a federal cause of action for "[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce."

The court went on to dismiss several of plaintiff's claims, but refused to dismiss her claim under the Minnesota Human Rights Act for religious discrimination, saying in part:

Contrary to Hamline’s position, the Court finds that Ms. López Prater plausibly alleges that Hamline discriminated against her because she was not a Muslim or did not conform to a belief that certain Muslims share....

Ms. López Prater maintains that Hamline would not have labeled the act of showing the images “Islamophobic” if she were Muslim....

... [C]aselaw recognizes that an employer can discriminate against an employee if it acts on the preference of third parties such as customers or clients....  Therefore, Ms. López Prater alleging that Hamline discriminated against her by acting on the preferences of certain Muslim students and staff members is sufficient at this stage.

The court however dismissed plaintiff's reprisal claim under the Minnesota Human Rights Act, as well as her claims for defamation, intentional infliction of emotional distress and her claims under the Minnesota Whistleblower Act. Volokh Conspiracy also reports on the decision.

Recent Articles of Interest

From SSRN:

• Duane Rudolph, Dignity. Reverence. Desecration, (Seton Hall Law Review, Vol. 53, No. 1173, 2023).
• Kanak Kanti Karmakar, Hindu Personal Laws in Bangladesh: Challenges and Prospects of Women’s Rights, (International Journal of Law Management & Humanities, Volume 6, Issue 3, Page 2540 - 2565 (2023)).
• Christopher Ryan, Nearer to Thee: Cy Près and Religious Discrimination, (September 11, 2023).
• Marc Greendorfer, Trading Places: The Intersection of LGBTQ Rights and Zionist Rights under Federal Civil Rights Laws, (September 13, 2023).
• Jaclyn L. Neo, Constitutional Identity as Discourse: Mis-identity and Dis-identity, (Forthcoming in Ran Hirschl and Yaniv Roznai (eds.), Deciphering the Genome of Constitutionalism: The Foundations and Future of Constitutional Identity (Cambridge University Press)).
• Muhammad Mushtaq Ahmad, et. al., An Islamic Perspective on Restraint in War: A Pakistan Case Study, (International Committee of the Red Cross, 2022).
• Elizabeth Katz, Fostering Faith: Religion in the History of Family Policing, (Fordham Law Review, Forthcoming).
• SpearIt, Muslim Prisoner Litigation: An Unsung American Tradition (Introduction), (University of California Press, 2023).
• Abdul Aziz Shamhuna, Effects of Divorce on the Educational Performance of Muslim Child, (September 14, 2023).

From SmartCILP:

• Peretz Laine, To Keep or Not to Keep: Comparing Jewish Law, the Common Law, and Florida's Statutory Law on Finds, 47 Nova Law Review 1-30 (2022).
• Francine Klarsfeld, Connecticut's Path to Achieving Herd Immunity, 26 Quinnipiac Health Law Journal 251-286 (2023).

President Sends Rosh Hashanah Greetings

The White House today posted a Rosh Hashanah Statement from the President saying in part:

I’ve always believed that the message of Rosh Hashanah is universal. As Americans, the power lies within each of us to make our country more free and fair, to transform the story of our time, and to heal the soul of our nation.

Throughout the High Holidays and in the year ahead, let us summon the courage to reflect on who we are and extend compassion, love, and kindness to all. Let us celebrate and protect generations of Jewish Americans whose values, culture, and contributions have shaped our character as a nation, and enriched every part of American life. And let us remember the common values that bind us together as fellow Americans.

Jill and I extend our warmest wishes to all those celebrating Rosh Hashanah in the United States, Israel, and around the world.

Rosh Hashanah begins at sundown this evening.