Cert. Granted To Review Title VII "Undue Hardship" Test For Religious Accommodation

The U.S. Supreme Court yesterday granted review in Groff v. DeJoy, (Docket No. 22-174, certiorari granted, 1/13/2023). (Order list). In the case, the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, held that accommodating a Sunday sabbath observer by allowing him not to report for work on Sunday would cause an "undue hardship" to the U.S. Postal Service.  Thus, failure to grant that accommodation did not violate Title VII. (See prior posting.)In the case, petitioners are asking the Supreme Court to revisit and reject the test for "undue hardship" announced in TWA v. Hardison. (cert. petition). Here is SCOTUSblog's case page for the case.

New Report on Antisemitism In U.S.

The ADL yesterday issued its annual report on Antisemitic Attitudes in America (full text).  According to the Executive Summary:

Over three-quarters of Americans (85 percent) believe at least one anti-Jewish trope, as opposed to 61 percent found in 2019. Twenty percent of Americans believe six or more tropes, which is significantly more than the 11 percent that ADL found in 2019 and is the highest level measured in decades....

Many Americans believe in Israel-oriented antisemitic positions – from 40 percent who at least slightly believe that Israel treats Palestinians like Nazis treated the Jews, to 18 percent who are uncomfortable spending time with a person who supports Israel.

New Michigan City Ordinance Permits Animal Sacrifice

 As reported by the Detroit Free Press, the Hamtramck, Michigan City Council on Tuesday by a vote of 3-2 voted to amend the city's Animal Ordinance to permit animal sacrifices on residential property. The new Ordinance (full text) provides in part:

Any person wishing to conduct an animal sacrifice for religious purposes must notify the City by reporting such intention to the Clerk’s Office at least one week prior to the date of animal sacrifice;

(1) Such person shall provide the exact date and time of animal sacrifice to the City and shall schedule a time for the City to conduct post sacrifice inspection of the site to ensure, in the opinion of the inspector, that the area was properly cleaned and sanitized after the sacrifice was concluded.

(2) Such person shall pay the City a fee, as set by city council annually, for the sanitation inspection. Such fee shall be paid at the time when such person informs the City of the sacrifice as required above.

(B) Any and all actions necessary to restrict the act of sacrifice from public viewing must be taken without exception. The public, for the purposes of this subsection, shall be defined as any individual who has not formally indicated their intention to view the animal sacrifice.

Hamtramck has a large Muslim population and all members of City Council are Muslim.  Some Muslims sacrifice animals for Eid al-Adha.

Catholic Hospital's Denial of Gender Dysphoria Procedure Is Illegal Sex Discrimination

In Hammons v. University of Maryland Medical System Corp., (D MD, Jan. 6, 2023), a Maryland federal district court held that a hospital's refusal to allow plaintiff to have a hysterectomy performed at the hospital to treat gender dysphoria was sex discrimination in violation of the Affordable Care Act's discrimination ban. The hospital was originally a Catholic hospital, and when the University of Maryland System acquired it, the purchase agreement required it to continue to abide by the Ethical and Religious Directives for Catholic Health Services promulgated by the United States Conference of Catholic Bishops. In finding discrimination, the court said in part:

It may be true that St. Joseph prohibits medical personnel from performing hysterectomies on all individuals, regardless of sex, who do not have a medical need for that surgery—i.e., individuals who seek a hysterectomy solely for the purpose of elective sterilization. However, Mr. Hammons did have a medical need for his requested hysterectomy; he was not seeking a hysterectomy for the purpose of elective sterilization.

The court also concluded that since defendant is a wholly owned subsidiary of a state actor, a RFRA defense is not available to it. It added that even if defendant is considered a private actor, a RFRA defense is not available because RFRA only applies to burdens on free exercise imposed by the government. Daily Citizen reports on the decision.

Publication Schedule

From January 9 to 22, posts on Religion Clause will be more sporadic than usual. The regular publication schedule will resume on January 23.

Recent Articles of Interest

 From SSRN:

• Joanna Wuest & Briana Last, Church Against State: How Industry Groups Lead the Religious Liberty Assault on Civil Rights, Healthcare Policy, and the Administrative State, (Journal of Law, Medicine & Ethics, Forthcoming).
• Nicholas Aroney, Economics, Law, Education, and Religion - Contributions to the Composition of a Good Society, (in Michael Welker, John Witte, Piet Naudè and Stephen Pickard (eds), "The impact of the political economy on character formation, ethical education and the communication of values in late modern pluralistic societies" (Leipzig: Evangelische Verlagsanstalt, 2020)).
• Tal Zarsky & Nadav S. Berman, What Is the Juxtaposition between Silicon Valley and Mount Sinai? Covenantal Principles and the Conceptualization of Platform-User Relations, (Journal of Law and Religion, Vol. 37, No. 3, 2022).
• Craig A. Stern, Just As We Imagine, (12 J. Christian Legal Thought, no. 2, 2022, at 7).
• Ido Katri, Trans Bodies, Gay Sexuality, Dysphoria, (Enticements: Queer Legal Studies (Brenda Cossman and Joseph Fischel Eds.) (NYU Press, 2024)).
• June Carbone & Naomi R. Cahn, The Court’s Morality Play: The Punishment Lens, Sex, and Abortion, (Southern California Law Review, Forthcoming).

From SmartCILP:

• Michelle LeBaron & Mage Senbel, Conflicts with Religious or Worldview Dimensions: Why They Matter and How to Engage Them, 23 Cardozo Journal of Conflict Resolution 301-332 (2022).

Idaho Supreme Court Upholds Abortion Ban

 In Planned Parenthood Great Northwest, Hawaii, Alaska, Indiana, Kentucky v. State of Idaho, (ID Sup. Ct., Jan. 5, 2023), the Idaho Supreme Court in a 3-2 decision upheld three Idaho statutes banning abortions.  The majority summarized its decision in part as follows:

The Idaho Constitution does not contain an explicit right to abortion. Nevertheless, Petitioners argue that certain provisions implicitly enshrine abortion as a right entitled to heightened protection from the legislature’s broad power to regulate conduct.....

For the reasons discussed below, we cannot read a fundamental right to abortion into the text of the Idaho Constitution. 

The Inalienable Rights Clause in Article I, section 1 of the Idaho Constitution, which lists the rights to life, liberty, and property, provides the textual basis for the recognition of implicit fundamental rights. Indeed, Article I, section 21, while not purporting to be a repository of implicit rights, provides that the listing of rights in the Idaho Constitution “shall not be construed to impair or deny other rights retained by the people.” The Inalienable Rights Clause was framed at Idaho’s constitutional convention in 1889 and ratified by the people of Idaho later that same year. Thus, for us to read a fundamental right into the Idaho Constitution, we must examine whether the alleged right is so “deeply rooted” in the traditions and history of Idaho at the time of statehood that we can fairly conclude that the framers and adopters of the Inalienable Rights Clause intended to implicitly protect that right.

When we apply that test to this dispute, there simply is no support for a conclusion that aright to abortion was “deeply rooted” at the time the Inalienable Rights Clause was adopted....

Importantly, nothing about this decision prevents the voters of Idaho from answering the deeply moral and  political question of abortion at the polls....

Additionally, as explained below, we conclude that the Total Abortion Ban, 6-Week Ban, and Civil Liability Law each pass the familiar test for determining the constitutionality of most legislation: “rational-basis” review. Under that form of review, each of these laws is constitutional because it is rationally related to the government’s legitimate interest in protecting prenatal fetal life at all stages of development, and in protecting the health and safety of the mother.

Justice Zahn and Justice Stegner each filed a dissenting opinion. [Thanks to Dusty Hoesly for the lead.]

South Carolina Supreme Court Invalidates Fetal Heartbeat Abortion Ban

In Planned Parenthood South Atlantic v. State of South Carolina, (SC Sup. Ct., Jan. 5, 2023), the South Carolina Supreme Court in a 3-2 decision held that the state's Fetal Heartbeat and Protection from Abortion Act violates a woman's right to privacy protected by Art. I, Sec. 10 of the South Carolina Constitution. Each Justice wrote a separate opinion in the case. The opinions span 147 pages.  Justice Hearn, holding the law unconstitutional, said in part:

We hold that the decision to terminate a pregnancy rests upon the utmost personal and private considerations imaginable, and implicates a woman's right to privacy. While this right is not absolute, and must be balanced against the State's interest in protecting unborn life, this Act, which severely limits—and in many instances completely forecloses—abortion, is an unreasonable restriction upon a woman's right to privacy and is therefore unconstitutional....

The State unquestionably has the authority to limit the right of privacy that protects women from state interference with her decision, but any such limitation must be reasonable and it must be meaningful in that the time frames imposed must afford a woman sufficient time to determine she is pregnant and to take reasonable steps to terminate that pregnancy. Six weeks is, quite simply, not a reasonable period of time for these two things to occur, and therefore the Act violates our state Constitution's prohibition against unreasonable invasions of privacy.

Chief Justice Beatty concurred in a separate opinion, saying in part:

Although our determination turns on the right to privacy, I believe the Act is also void ab initio and denies state constitutional rights to equal protection, procedural due process, and substantive due process. Therefore, the Act violates our state constitution beyond a reasonable doubt. For the foregoing reasons, I concur with Justice Hearn's lead opinion regarding the right to privacy, and I write separately to address all of Petitioners' issues because our decision today will likely not be the final resolution of the quandary....

When life begins is a theoretical and religious question upon which there is no universal agreement among various religious faiths. In fact, because there are differing views on abortion and when life begins among religious faiths, challenges are already being made to some abortion laws on the basis they violate religious freedom by elevating one faith's views over the views of others. The question of when life begins is distinguishable from the constitutional questions raised here regarding whether a woman has the right to make her own medical decisions regarding her reproductive health (in consultation with her medical provider and based on scientific evidence). At its core, the question the Court faces today is can the government—by force of law—force a woman to give birth without her consent? As will be discussed, for a reasonable period of time, a woman, rather than the government, retains this important right to choose whether to become a mother.

Justice Few filed an opinion concurring only in the result, saying in part:

Political questions surrounding abortion have produced as much impassioned disagreement as any issue of our time. When those political questions intersect with questions of law, advocates on both sides of the political questions seem to believe that the more fervently they hold their political views, the more likely those views will become someone else's legal views. We have been asked in this case to ignore well-established principles of law in order to uphold the Fetal Heartbeat Act, and to create new and novel principles of law to strike down the Act. The parties who made these requests derive their positions not from sound legal reasoning, but from fervent political advocacy. These well-intentioned parties act on the basis of their politics. The Court must act on the basis of law. The article I, section 10 prohibition on "unreasonable invasions of privacy" is a principle of law. The six-week ban in the Fetal Heartbeat Act violates the provision because—as a matter of law—it is an unreasonable intrusion into a pregnant woman's right of privacy. The Fetal Heartbeat Act is, therefore, unconstitutional.

Justice Kittredge filed a dissenting opinion, saying in part:

Petitioners' due process claim fails. Abortion is not "deeply rooted" in our state's history, and it could not be reasonably suggested that abortion is "implicit in the concept of ordered liberty." To the contrary, it is the regulation and restriction of abortion that is deeply rooted in our state's history....

Justice Few and I have a fundamental difference of opinion on the reach and meaning of the state constitutional privacy provision. Justice Few views the privacy provision expansively; I view the privacy provision in line with its understood meaning at the time it was adopted, along with caselaw interpreting the provision. Yet Justice Few and I agree on a person's general privacy interest in his or her medical autonomy. It is the source of that privacy interest where we part company. Justice Few finds the source of the privacy interest in article I, section 10—the privacy provision. I believe this privacy interest in healthcare decisions is embedded in the due process concept of liberty from our nation's and state's foundings. That is why I find the source of that interest in article I, section 3—due process. This position aligns with my view that the most basic forms of privacy arise from natural law....

Justice James filed a dissenting opinion, agreeing in part with Justice Kittredge, saying in part:

Like Justice Kittredge, I would uphold the Act. However, I disagree with Justice Kittredge on one point: I would hold the privacy provision in article I, section 10 provides citizens with heightened Fourth Amendment protections, especially protection from unreasonable law enforcement use of electronic devices to search and seize information and communications. It goes no further.

CNN reports on the decision.

"Ministerial Exception" Doctrine Applies to Claims by Kosher Wine Supervisor

In Markel v. Union of Orthodox Jewish Congregations of America, (CD CA, Jan. 3, 2023), a California federal district court held that the "ministerial exception" doctrine bars claims rooted in the California Labor Code brought against a synagogue organization by a mashgiach (kosher food supervisor) formerly employed by it. The court found that the Orthodox Union meets the requirements for a religious organization and that Markel should be categorized as a "minister", saying in part:

[T]he OU designated Markel as a head mashgiach at the Delano winery, and he was tasked with overseeing the kosher production of wine. Although a mashgiach may not be a "minister in the usual sense of the term—[he] was not a pastor or deacon, did not lead a congregation, and did not regularly conduct religious services"—Markel's title and assigned duties as mashgiach satisfy the first Hosanna-Tabor factor.... As mashgiach, Markel was integral to the koshering of wine for use by Orthodox Jews and the greater Jewish community, and his efforts were necessary in fulfilling an important function of the Jewish faith.

Second, Markel's position "reflected a significant degree of religious training followed by a formal process of commissioning." ...

Third, Markel's duties as a head mashgiach reflected the religious mission of the OU and the importance of supervising the kosher production of wine for the Orthodox Jewish faith.

Vaccine Mandate Without Religious Exemption Is Upheld

In Spivack v. City of Philadelphia, (ED PA, Jan. 4, 2023), a Pennsylvania federal district court held that Philadelphia's District Attorney Lawrence Krasner did not violate the religious rights of an Orthodox Jewish Assistant District Attorney when he refused to grant her an exemption from the Office's COVID vaccine mandate. The mandate, in its final form, offered no religious exemptions and only limited medical exemptions. According to the court, in seeking a religious exemption plaintiff submitted a letter from her rabbi that explained:

congregation members are forbidden from (1) benefitting from the live dissection of animals; (2) using hybridization technologies; (3) "self-flagellating"; (4) exposing themselves to unnecessary risk (Spivack's "natural immunity" to the virus made vaccination unnecessary); and (5) injecting a product whose precise ingredients are undisclosed.... Neither Krasner nor the City disputes that Spivack's sincerely holds her religious beliefs.

Rejecting plaintiff's First Amendment challenge, the court said in part:

Spivack offers no evidence that Krasner's exemption changes "stemmed from religious intolerance, rather than an intent to more fully ensure that employees [at the DAO] receive the vaccine in furtherance of the State's public health goal."...

[T]he medical exemption Krasner finally approved was for an objectively and narrowly defined category of persons: non-union DAO employees for whom a vaccination could be life-threatening. This is not the kind of exemption that undermines the Policy's general applicability....

The DAO ... "seriously considered substantially less restrictive alternatives" in the hope that they could achieve the Office's compelling interest-- "trying to keep people as safe as we can."... Concluding that these alternatives were inadequate, the Office required vaccinations for all non-union employees save one.

In these circumstances, the DAO Vaccine Policy survives strict scrutiny review.

NY Governor Vetoes Bill on Notifying Defendants of Right to Secular 12-Step Programs

On Dec. 23, New York Governor Kathy Hochul vetoed New York Senate Bill 7313A which would have required courts, in imposing alcohol or substance abuse treatment on a defendant, to inquire if the defendant has religious objections to the program, and if the defendant does, to identify an alternative nonreligious treatment program for the defendant.  As reported by Only Sky, the veto was met with substantial criticism.  In her Veto Memo, Governor Hochul explained her veto in part as follows:

While I support the right to a substance use treatment program that will be most effective, codifying the right to object to mandated attendance at a religious substance use treatment program sets an uncomfortable precedent in that it may invite future selective legislative efforts to inject a similar burden upon judges to inform litigants of their rights to opt out of other court mandates. This process may raise questions whether litigants enjoy rights to opt out of other mandates on religious grounds where the underlying statutes have not been amended to codify those rights. Given that defendants already have the right to request nonreligious treatment, this bill is unnecessary and imposes an overly rigid burden on courts and judges.

Court Says Idiosyncratic Personal Religious Beliefs May Not Support Religious Accommodation

In In re Moscatelli v. New York City Police Department, (NY Cnty. Sup. Ct., Dec. 22, 2022), a New York trial court annulled an administrative determination that denied a New York City Detective a religious exemption from the city's COVID vaccine mandate. The court held that the administrative determination was arbitrary and capricious, saying that "the NYPD EEOD’s determination is a prime example of a determination that sets forth only the most perfunctory discussion of reasons for administrative action." The court went on, however, to say:

The court’s conclusion in this regard should not be construed as a ruling that, had the petitioner’s stated reasons for his request for an exemption, and his discussion of religious doctrine, properly been analyzed and explained by the Panel or the NYPD EEOD in the challenged decisions, those contentions would have constituted a proper basis for an exemption. That would have required a forthright engagement by those agencies with the religious contentions and arguments raised by the petitioner.... It would also have required some actual inquiry ... into the petitioner’s prior behavior concerning vaccines and medications. Had those agencies taken that approach, their determinations might have survived judicial scrutiny, as the petitioner provided scanty proof that the rejection of vaccinations or medications that have been developed, improved, or tested using fetal stem cells is an accepted tenet of Catholic doctrine, as opposed to a personal interpretation of doctrine by a lay person or even a few members of the clergy....

[T]he petitioner ... has not demonstrated that his conclusions about sin, the use of embryonic stem cells in the development and improvement of various vaccinations and medications, and the alleged proscription of desecrating the human body via any genetic manipulation that mRNA vaccinations might generate, are established Catholic doctrine, or merely his personal interpretation of his obligations as a practicing Catholic....  Nor has he demonstrated that he had previously declined to be treated with [other] drugs ... which were either developed, improved, or recently tested by their manufacturers for adverse side effects using stem cells from aborted fetuses.

Survey Shows Religious Affiliations of Members of New Congress

Pew Research Center has released its survey of the religious affiliations of members of the incoming 118th Congress. Titled Faith on the Hill, among the findings are that of the 469 total members of the House and Senate, 303 are Protestant, 148 are Catholic, 33 are Jewish, 9 are Mormon, 8 are Orthodox Christian. Among the faiths that have 3 or fewer members, 3 identify as Muslim, 2 as Hindu, and 1 as Messianic Jewish.  The full report has additional specifics.

Biden Renominates Persons To Be Commissioner and General Counsel of EEOC

With the convening of the 118th Congress yesterday, President Biden resubmitted a large number of nominations that had not been acted upon by the Senate last year. Among them were the nomination of Kalpana Kotagao to be a Member of the Equal Employment Opportunity Commission for a term expiring July 1, 2027, and Karla Ann Gilbride to be General Counsel of the EEOC for a four-year term. The EEOC enforces federal laws barring employment discrimination on the basis of race, color, religion, national origin, sex (including pregnancy, gender identity, and sexual orientation), age, disability or genetic information.

11th Circuit En Banc Upholds School Policy Assigning Restrooms on Basis of Biological Sex

In Adams v. School Board of St. Johns County, Florida, (11th Cir., Dec. 30, 2022), the U.S. 11th Circuit Court of Appeals sitting en banc in a 7-4 decision held that separating use of male and female bathrooms in public schools based on students' biological sex does not violate either the Equal Protection Clause or Title IX. The six opinions filed in the case span 150 pages.  A 3-judge panel in a 2-1 decision had previously ruled to the contrary. The majority opinion on en banc review said in part:

The School Board’s bathroom policy is clearly related to—indeed, is almost a mirror of—its objective of protecting the privacy interests of students to use the bathroom away from the opposite sex and to shield their bodies from the opposite sex in the bathroom, which, like a locker room or shower facility, is one of the spaces in a school where such bodily exposure is most likely to occur. Therefore, the School Board’s bathroom policy satisfies intermediate scrutiny.

The district court avoided this conclusion only by misconstruing the privacy interests at issue and the bathroom policy employed.... [T]he bathroom policy does not unlawfully discriminate on the basis of biological sex....

The policy impacts approximately 0.04 percent of the students within the School District—i.e., sixteen transgender students out of 40,000 total students—in a manner unforeseen when the bathroom policy was implemented. And to accommodate that small percentage, while at the same time taking into account the privacy interests of the other students in the School District, the School Board authorized the use of sex-neutral bathrooms as part of its Best Practices Guidelines for LGBTQ issues....

Contrary to the dissent’s claim, the School Board, through the Best Practices Guidelines, did not discriminatorily “single[] out transgender students.” ... The School Board sought to accommodate transgender students by providing them with an alternative—i.e., sex-neutral bathrooms—and not requiring them to use the bathrooms that match their biological sex— i.e., the bathroom policy Adams challenges.... Ultimately, there is no evidence of purposeful discrimination against transgender students by the School Board, and any disparate impact that the bathroom policy has on those students does not violate the Constitution.

Judge Lagoa filed an opinion Specially Concurring, saying in part:

 I write separately to discuss the effect that a departure from a biological understanding of “sex” under Title IX—i.e., equating “sex” to “gender identity” or “transgender status”—would have on girls’ and women’s rights and sports.

Judge Wilson dissented, saying in part:

Underlying this sex-assigned-at-matriculation bathroom policy ... is the presumption that biological sex is accurately determinable at birth and that it is a static or permanent biological determination. In other words, the policy presumes it does not need to accept amended documentation because a student’s sex does not change. This presumption is both medically and scientifically flawed....

The case of intersex students therefore proves that a privacy concern rooted in a thin conception of biological sex is untenable.

Judge Jordan filed a dissenting opinion, joined by Judges Wilson and Rosenbaum, saying in part:

[T]he School Board’s policy allows a transgender student just like Drew to use the boys’ bathroom if he enrolls after transition with documents listing him as male. Because such a student poses the same claimed safety and privacy concerns as Drew, the School Board’s bathroom policy can only be justified by administrative convenience.

Judge Rosenbaum filed a dissenting opinion, saying in part:

I join Judge Jordan’s dissent in its entirety and Judge Jill Pryor’s dissent’s equal-protection analysis. I write separately only to emphasize one point ...: the Majority Opinion’s misplaced suggestions that affirming the district court’s order on equal-protection grounds would require courts in this Circuit to find that all challenges involving restrooms, locker rooms, and changing facilities must necessarily be upheld are wrong.

Judge Jill Pryor filed a dissenting opinion (which Judge Rosenbaum joined as to her equal protection analysis) saying said in part:

In contrast to transgender students, all cisgender students are permitted to use the restroom matching their gender identity. The policy, therefore, facially discriminates against transgender students by depriving them of a benefit that is provided to all cisgender students. It places all transgender students on one side of a line, and all cisgender students on the other side. The School District cannot hide beyond facially neutral-sounding terms like “biological sex.” As the Supreme Court has observed, “neutral terms can mask discrimination that is unlawful.”...

[T]he bathroom policy’s assignment of Adams to the girls’ restrooms would actually undermine the abstract privacy interest the School District wished to promote. While he attended Nease and was excluded from the boys’ bathrooms, Adams had “facial hair,” “typical male muscle development,” a deep voice, and a short haircut.... He had no visible breast tissue; his chest appeared flat. He wore masculine clothing. Any occupant of the girls’ restroom would have seen a boy entering the restroom when Adams walked in. Thus, the district court found, “permitting him to use the girls’ restroom would be unsettling for all the same reasons the School District does not want any other boy in the girls’ restroom.”...

The School District’s policy categorically assigned transgender students, including Adams, to bathrooms based on only one biological marker: their sex assigned at birth. Adams’s claim that the School District’s notion of what “sex” means is discriminatory is not foreclosed by the Title IX carveouts....

Law & Crime reports on the decision. 

European Court Again Holds That Flying Spaghetti Monster Church Is Not a Protected "Religion"

In two recent Chamber Judgments, the European Court of Human Rights reaffirmed its prior holding in a 2021 case that the Church of the Flying Spaghetti Monster, whose adherents are also known as Pastafarians, does not qualify as a "religion" or "belief" protected by Article 9 of the European Convention on Human Rights. In Sager v. Austria, (ECHR, Dec. 15, 2022), Austria's Office for Religious Affairs refused to recognize the Church as a religious community. The European Court rejected petitioner's challenge to that decision, saying in part:

[B]y holding that Pastafarianism perceived itself as an ironical and critical movement with educational, scientific and political aims, and lacked religious rites, duties and an active following in Austria, the Office for Religious Affairs and the Federal Administrative Court duly applied the above‑mentioned standards requiring a certain level of cogency, seriousness, cohesion and importance.

In ALM v. Austria, (ECHR, Dec. 15, 2022), Austrian authorities refused to issue petitioner an identity card with a photograph showing him wearing a crown made of pasta.  Again, the European Court rejected petitioner's challenge to that decision. Law & Religion UK reports on the decisions.

Refusal To Approve Athletic Field Lights for Catholic School Did Not Violate RLUIPA

In Edgewood High School of the Sacred Heart, Inc. v. City of Madison, Wisconsin, a Wisconsin federal district court rejected RLUIPA, free speech and other challenges by a Catholic high school to the city's denial of a permit for outdoor lighting at its athletic fields. The surrounding residential neighborhood association objected to the proposal.  The court said in part:

The initial question is whether putting lights on an athletic field is a religious exercise for plaintiff Edgewood at all....  Edgewood suggests that athletics have long been a part of Edgewood, consistent with the Sinisawa Dominican tradition of educating the whole person. Yet this case is not about athletics in general; it is about Edgewood’s ability to install lights in order to use its athletic field at night.... [U]se of the field at night has never been a part of Sinisawa’s Dominican strategy, which largely takes place during regular school hours.

In fairness, plaintiff also suggests that the field could be used for liturgies and other religious ceremonies, but there is nothing in the record indicating that Edgewood ever uses the field for such purposes, much less that it has a need to do so at night....

Even if the court were to assume that night football (as opposed to a variety of sports conducted in gym classes and at practices) is an important element of Edgewood’s religious exercise, which is certainly not a given, plaintiff offers no evidence that it is substantially burdened by having to play night home games at a different field....

[I]t would be a misreading of [two prior cases cited by plaintiffs] to hold that public outcry is sufficient to show unequal treatment under RLUIPA absent proof of a substantial burden on religious exercise, something simply lacking in this case.

Recent Articles of Interest

From SSRN:

• Serap Güneş, De-Europeanisation as Counter-conduct: The Case of Non-Muslim Religious Minorities in Turkey, Romanian Journal of European Affairs (22(2), 5-29 (2022)).
• Nicholas Aroney, Economics, Law, Education, and Religion - Contributions to the Composition of a Good Society, (in Michael Welker, John Witte, Piet Naudè and Stephen Pickard (eds), "The Impact of the Political Economy on Character Formation, Ethical Education and the Communication of Values in Late Modern Pluralistic Societies" (Leipzig: Evangelische Verlagsanstalt, 2020).
• Susan Frelich Appleton, Out of Bounds?: Abortion, Choice of Law, and a Modest Role for Congress,  (Forthcoming, 35 American Academy of Matrimonial Lawyers Journal ___ (2023)).
• James Cleith Phillips, The Respect for Marriage Act's Polygamy Problem (December 22, 2022).
• Matthew Goldammer, A Defense of the Compulsory Deference Approach for Church Property Litigation, (Forthcoming in the Notre Dame Journal of Law, Ethics & Public Policy).
• Gabriella Kamran, Off-White: Al-Khazraji and Shaare Tefila's Potential to De-Essentialize Antidiscrimination Law, (17 Fla. A&M U. L. Rev. 129 (2022)).
• Zainuddin Zainuddin & Rosmini Rosmini, Distribution of Zakat for Communities Affected by COVID-19 in the Perspective of Socio-Economic Justice, (November 30, 2022).
• Nancy C. Marcus, Bendita Malakia, Ann E. Tweedy & Mya Reid, Bridging the Gap in LGBTQ Rights Litigation: A Community Discussion on Bisexual Visibility in the Law, (Hastings Women's Law Journal, Vol. 34, No. 1, 2023).

From SmartCILP:

• Corey Brettschneider, Praying for America: The Anti-Theocracy and Equal Status Principles of the Free Exercise, Equal Protection and Establishment Clauses, 47 BYU Law Review 1127-1170 (2022).
• Mark Satta, Political Partisanship and Sincere Religious Conviction, 47 BYU Law Review 1221-1274 (2022).
• Josh Blackman, The "Essential" Free Exercise Clause, 44 Harvard Journal of Law & Public Policy 637-762 (2021).

Happy New Year 2023!

Dear Religion Clause Readers:

Happy New Year 2023! I hope that you continue to find Religion Clause a valuable source of information on the intersection of law, religion and public policy. In this past year, we have seen important First Amendment doctrinal developments. Free exercise concerns have loomed larger in the view of the Supreme Court and the Establishment Clause has become a weaker limit on governmental actions. Cases which on their surface were not religion cases have nevertheless sharpened cultural and political divisions along religious lines.  And antisemitism has become a growing concern.

In reporting on these and other developments, I have attempted to retain Religion Clause's objectivity and its policy of linking to extensive primary source material. I hope that the blog continues to have a reputation for reliability at a time when the objectivity of social media is increasingly called into question.  

Religion Clause is a niche blog whose readership includes lawyers, social scientists, advocacy organization personnel, law school faculty, journalists, clergy, legislative and executive branch staff, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world. I attempt to avoid excessively technical matters in my posts in order to make the blog accessible as well to non-lawyers with a general interest in the area.

Thank you to all of you who are loyal readers of Religion Clause-- both those who have followed it for years and those who have only recently discovered it. I hope you will continue to follow Religion Clause in 2023. Please recommend the blog to colleagues, students and friends who may find it useful and interesting.

Best wishes as we all face the challenges that 2023 brings to us.  I hope that we are able to deal with these challenges by respecting divergent viewpoints and coming together with solutions to at least some of the many problems that we face.

Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions. Best wishes for 2023.

Howard Friedman

New York Ban on Firearms at Churches Violates 1st and 2nd Amendments

In Spencer v. Nigrelli, (WD NY, Dec. 29, 2022), a New York federal district court issued a preliminary injunction barring enforcement against plaintiffs-- a pastor and his church-- of New York state's ban on concealed-carry license holders possessing a firearm at any place of worship or religious observation. The court concluded that the ban violates the Free Exercise Clause, Establishment Clause and Second Amendment rights of plaintiffs, saying in part:

Pastor Spencer believes that he has "a moral and religious duty to take reasonable measures to protect the safety of those who enter the Church."... He explained that the "Bible often refers to religious leaders as 'shepherds' and tasks them with caring for and protecting their 'flocks."'... He therefore believes that "providing for the physical safety of the Church tin body of Christ—is [his] religious act and duty as a pastor."...

Pastor Spencer testified that members of the Church's security team of congregants protect the congregation pursuant to a calling from God. Hired outside security, Spencer believes, is not an adequate substitute because such individuals would be working for a paycheck—not acting pursuant to a spiritual calling.... Pastor Spencer and Church members have a religious belief that they, themselves, must protect the flock. Indeed, religious beliefs "need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection." ...

In sum, on this record, Plaintiffs have demonstrated that the State permits countless other private actors hosting secular activities to do what a house of worship may not. The houses of worship exclusion is not a neutral law of general applicability....

The new law, in effect, forces them to disregard this spiritual calling and, notably, dictates that protection of the Church may only be provided by a different group of people—i.e., individuals fitting into a statutory exemption. The Supreme Court instructs that "a component" of a church's "autonomy is the selection of the individuals who play certain key roles."... [T]he place of worship exclusion encroaches on matters "closely linked" with the Church's right to determine how best to conduct its own affairs.

However, the court issued a stay pending appeal allowing the church to designate individuals who have concealed carry licenses to carry firearms on church premises to keep the peace. This is consistent with stays issued by the Second Circuit in other cases now on appeal challenging the New York ban on firearms at places of worship. The Reload reports on the decision. Reason has more on the Second Amendment aspects of the case.