State Court Enjoins Enforcement Of Michigan's Pre-Roe Abortion Ban

In Planned Parenthood of Michigan v. Attorney General of the State of Michigan, (MI Ct. Cl., May 17, 2022), 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. The 1931 ban contains an exception only for preserving the life of the mother. The court said in part:

After 50 years of legal abortion in Michigan, there can be no doubt but that the right of personal autonomy and bodily integrity enjoyed by our citizens includes the right of a woman, in consultation with her physician, to terminate a pregnancy. From a constitutional standpoint, the right to obtain a safe medical treatment is indistinguishable from the right of a patient to refuse treatment. Based on the due process principles discussed above, the Court finds a substantial likelihood that MCL 750.14 violates the Due Process Clause of Michigan's Constitution.

ACLU of Michigan issued a press release announcing the decision.

U.S. Sanctions On Russia May Lead To Chabad Recovering Assets In Suit Over Return Of Jewish Library Collection

As previously reported, in 2013 the D.C. federal district court held the Russian government and three of its agencies in civil contempt for not complying with a 2010 default judgement ordering it to return two expropriated collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States.  Despite objections by the United States government, the court imposed civil sanctions of $50,000 per day until defendants comply with the court's order. Chabad ever since has been seeking Russian assets to satisfy the continually accruing civil sanctions. 

This week, JTA published an interesting analysis suggesting that Ukraine-related U.S. sanctions on Russia may set the stage for Chabad to recover assets:

By late 2021, two entities had emerged as Chabad’s primary targets: Russia’s main development bank, VEB, and Tenex, a subsidiary of a Russian state-run company called Rosatom that sells uranium to nuclear power plants in the United States.

The United States announced sanctions on VEB on Feb. 22 in the lead-up to Russia’s invasion of Ukraine, freezing the bank’s U.S. assets. Its determination that VEB is effectively state wealth has given [Steven] Lieberman [Chabad's attorney] confidence that Chabad can eventually convince the U.S. Treasury Department to turn over VEB assets....

If VEB’s U.S. assets are all tied up in sanctions, Tenex remains entirely unrestricted. That’s because when the Biden administration imposed sanctions on Russia’s energy industry on March 8, it exempted nuclear power, allowing the continued import of Russian uranium. 

“If we’re allowed to seize the assets of Tenex, Chabad will be the only religious organization in the world that has its own nuclear power supply,” Lieberman said, half-jokingly.

City Council's Opening Of Meetings With Lord's Prayer Violates Establishment Clause

In Cobranchi v. City of Parkersburg, (D WV, May 17, 2022), a West Virginia federal district court held that Parkersburg's City Council violated the Establishment Clause by opening each of its meetings with The Lord's Prayer.  The court said in part:

The City Council’s prayer practice most clearly runs afoul of the Fourth Circuit’s concern with identifying the government with a single preferred religious sect. As noted, the Lord’s Prayer is sourced from a biblical translation of the gospel of Matthew, and the version utilized by the town council includes a concluding Christian doxology.... [I]t seems apparent that a reasonable observer to City Council meetings would be aware of the origin, or at the least Christian nature, of the prayer. By continually reciting, over a number of years, the same prayer clearly identifiable with a particular faith, without the opportunity for other faiths to be heard, the City Council impermissibly identified itself with a preferred religion.

FFRF issued a press release announcing the decision.

Christian Flight Attendants Sue After Being Fired For Their Posted Views On LGBTQ Rights

Suit was filed yesterday in a Washington federal district court by two Alaska Air flight attendants who allege, under Title VII and state anti-discrimination laws, illegal religious discrimination, hostile work environment, workplace harassment and retaliation.  The flight attendants were fired after they posted on an internal employee message board their opposition to the Airline's support for the federal Equality Act which would add sexual orientation and gender identity as groups protected against workplace discrimination. According to the complaint (full text) in Brown v. Alaska Airlines Inc., (WD WA., filed 5/17/2022):

3.... Marli and Lacey felt compelled by their Christian faith to post one comment each, asking about the impact of the Equality Act on civil rights for religion and women in the workplace.

4. Alaska Airlines responded to Marli and Lacey’s posts by immediately removing Marli and Lacey from their flight schedules, terminating their employment, and disparaging their religious expression and beliefs as “discriminatory,” “hateful,” and “offensive.”

5. When Marli and Lacey—both union members—faced termination because of their religious practices and beliefs, AFA failed to effectively represent them, ignoring civil rights laws prohibiting both employers and unions from discriminating on the basis of religion.

First Liberty issued a press release announcing the filing of the lawsuit. 

Court Enjoins Application To Christian Employers Of Protections For Gender Transition Services

In Christian Employers Alliance v. U.S. Equal Opportunity Commission, (D ND, May 16, 2022), a North Dakota federal district court, responding to a suit by an employers' organization challenging federal agency interpretations of anti-discrimination requirements, issued a preliminary injunction barring the EEOC from interpreting Title VII to require plaintiff's members to provide insurance coverage for gender transition services. It also enjoined HHS from using Section 1557 of the Affordable Care Act to impose on plaintiff's members who are health care providers an obligation to furnish or facilitate gender transition services or to restrict their speech on gender identity issues. The court said in part:

Defendants argue they will comply with RFRA but cannot predict ahead of time how RFRA will apply to the facts of a particular matter.... Religious freedom cannot be encumbered on a case-by-case basis.... The Alliance maintains if the government interest is to increase access to gender transition services, the government itself could assume the costs for those unable to afford them or obtain them under their employer’s religious objections in the health insurance policies. The Alliance reiterates the government could also provide subsidies, reimbursements, tax credits or deductions. Defendants must demonstrate a compelling interest to the Alliance’s substantial burden and have failed to do so. Determining on a case-by-case basis if a religious exemption should apply is certainly not the least restrictive means.

Bloomberg Law reports on the decision. (See prior related posting.)

Charity Fraud Claims May Proceed Against Christian Apologetics Ministry

In Carrier v. Ravi Zacharias International Ministries, Inc., (ND GA, May 13, 2022), a Georgia federal district court allowed plaintiffs to move ahead with some of their charity fraud claims against RZIM, a Christian apologetics ministry, and the estate of its founder Ravi Zacharias. Plaintiffs claims include ones of unjust enrichment and violation of the state's Fair Business Practice Act. The court describes plaintiffs' claims:

They allege that the Defendants “bilked hundreds of millions of dollars from well-meaning contributors who believed RZIM and Zacharias to be faith-filled Christian leaders,” when “[i]n fact, Zacharias was a prolific sexual predator who used his ministry and RZIM funds to perpetrate sexual and spiritual abuse against women.”... 

Responding to defendants' assertion of the ecclesiastical abstention doctrine as a defense, the court said in part:

The Court will exercise jurisdiction over the Plaintiffs’ claims to the extent they are predicated on misuse-of-funds allegations but not faith-based allegations. At bottom, the faith-based allegations ask the Court to examine the theology and customs of Christianity and Christian apologetics to determine whether Zacharias and RZIM fulfilled the religion’s (and the Plaintiffs’) moral standards. The Court would have to make inherently ecclesiastical determinations as part of this inquiry, such as what it means to be a “faith-filled, moral, and upstanding Christian leader” ..., and whether Zacharias’s alleged sexual misconduct is “diametrically opposed to the teachings of Christianity.”... It is not the role of federal courts to answer these kinds of questions “because that would require defining the very core of what the religious body as a whole believes.”... 

On the other hand, the Court believes that the Plaintiffs’ misuse-of funds allegations do not pose the same First Amendment concerns. Those allegations, and the claims associated with them, raise what amounts to a secular factual question: whether the Defendants solicited funds for one purpose (i.e., Christian evangelism) but instead used those funds for another purpose (i.e., to perpetrate and cover up sexual abuse). That dispute “concerns the [D]efendants’ actions, not their beliefs,” and can be decided according to state statutes and common law principles. 

7th Circuit Hears Oral Arguments In Ministerial Exception Case Involving Catholic School

Yesterday, the US. 7th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Starkey v. Roman Catholic Archdiocese of Indianapolis. In the case, an Indiana federal district court  held that the ministerial exception doctrine bars Title VII retaliation, discrimination and hostile work environment claims as well as state law claims of interference with contractual and employment relationships in a suit brought by the former Co-Director of Guidance at a private Catholic high school. The school refused to renew its contract with Lynn Starkey, who had been employed by the school for nearly forty years, after the school learned of Starkey's same-sex marriage. (See prior posting.)

Louisiana Supreme Court Quashes Charges Against Pastor Who Violated COVID Orders

In State of Louisiana v. Spell (Parish of East Baton Rouge), (LA Sup. Ct., May 13, 2022), the Louisiana Supreme Court quashed bills of information that had been issued against a pastor, charging him with violating the governor's COVID orders early in the pandemic.  The Orders limited gatherings and imposed stay-at-home mandates. The pastor continued to lead in-person worship services in violation of the Orders. The majority said in part:

Orders 30 and 33 contain exemptions allowing certain secular activities to proceed as normal without limiting the number of people permitted in a single space at the same time. In many of those gatherings, the risk of spreading the virus appears no  less prevalent than at a comparable gathering in a church. At the very least, the state offered no evidence proving otherwise. The executive orders grant preferential treatment only to secular conduct. This disparate treatment “strike[s] at the very heart of the First Amendment’s guarantee of religious liberty.”

Chief Justice Weimer, joined by Justice Griffin, dissented, saying in part:

In the absence of an evidentiary record, the majority opinion takes the position that if any exceptions whatsoever were carved out from the orders, then strict scrutiny is warranted, and it was the State’s burden to establish that the orders were narrowly tailored. However, this position ignores the circumstances under which the orders were issued and, instead, holds the emergency orders to a standard of scrutiny that has thus far only been applied by the Supreme Court at a much later stage in the pandemic and at a time with much greater evidentiary knowledge

Justice Crichton filed a concurring opinion.  KAKE News reports on the decision, [Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

• Bruce P. Frohen, Common Good Constitutionalism and the Problem of Administrative Absolutism, (April 14, 2022).
• Jennifer Lee Koh, Race, Immigration Law, and Christianity: Reflections and Tensions Raised by United States v. Wong Kim Ark, (Political Theology (2022, Forthcoming).
• Kyle Velte, The Precarity of Justice Kennedy's Queer Canon, (13 ConLawNOW 75 (2022)).
• Beatrice Jessie Hill, Look Who's Talking: Conscience, Complicity, and Compelled Speech, (97 Indiana Law Journal 913 (2022)).
• Rachel Morrison, Gender Identity Policy Under the Biden Administration, (23 Federalist Society Review 85 (2022)).
• Ken Levy & Jody Lynee Madeira, Sophistry at the Supreme Court, (The Hill (May 6, 2022)).
• Gabriella Kamran, The Things We Bear: On Guns, Abortion, and Substantive Due Process, (Georgetown Journal of Gender and the Law, Vol. XXIV, 2022).
• Philip Hackney, Written Testimony for the Hearing on Laws and Enforcement Governing the Political Activity of Tax-Exempt Entities, (U.S. Senate Finance Committee Subcommittee on Taxation and IRS Oversight, May 4, 2022).

From SSRN (Non-U,S, Law):

• Alba Ruibal, Using Constitutional Courts to Advance Abortion Rights in Latin America, (International Feminist Journal of Politics 2021).
• Holning Lau & Suzanne A. Kim, Nonmarriage and Choice in South Africa and the United States, (Washington University Law Review, Vol. 99, 2022).
• Mischa Gureghian-Hall, Abortion Rights in International Law: The Inter-American Human Rights System and a Post-Roe v. Wade America, (21 UCLA Undergraduate Law Journal 63 (2022)).

Alabama Enjoined From Enforcing Ban On Medical Treatments For Transgender Minors

In Eknes-Tucker v. Marshall, (MD AL, May 13, 2022), an Alabama federal district court issued an injunction pending trial of  the portion of the Alabama Vulnerable Child Compassion and Protection Act that restricts transgender minors from being treated with puberty blockers and hormone therapies. The court said in part:

Parent Plaintiffs have a fundamental right to direct the medical care of their children. This right includes the more specific right to treat their children with transitioning medications subject to medically accepted standards. The Act infringes on that right and, as such, is subject to strict scrutiny. At this stage of litigation, the Act falls short of that standard because it is not narrowly tailored to achieve a compelling government interest. Accordingly, Parent Plaintiffs are substantially likely to succeed on their Substantive Due Process claim,

The court also found that parents were substantially likely to succeed on their equal protection challenge because "discrimination based on gender-nonconformity equates to sex discrimination." GLAD and other advocacy groups representing plaintiffs issued a press release announcing the decision.

Space Force Captain With Religious Objections To Vaccine Mandate Is Denied Injunction

In Creghan v. Austin, (D DC, May 12, 2022), the D.C. federal district court refused to grant a preliminary injunction to a captain in the U.S. Space Force who has religious objections to the military's COVID vaccine mandate,  The military refused to grant her a religious accommodation, but has not taken steps to separate from the military. The court said in part:

As the Court explained in a similar case, requests for religious exemptions from military-mandated medical requirements “raise particularly difficult questions that implicate a storm of colliding constitutional interests.” Navy SEAL v. Austin, 2022 WL 1294486, at *1 (D.D.C. Apr. 29, 2022). Although this case is much closer than Navy SEAL, the Court remains concerned that it lacks the competence to “evaluate the merits of military [epidemiological and tactical] expertise” or to “weigh technical issues of public health and immunology” necessary to resolve the case. Id. at *5. Justiciability is all the more uncertain given the unfixed, evolving science on which this vaccination mandate is based. These concerns permeate the merits of Plaintiff’s claims as well.

Intervenors Say USAF Senior Leaders Told To Deny All Religious Exemptions To Vaccine Mandate

In a Memorandum In Support of a Preliminary Injunction (full text) filed on behalf of 230 intervening plaintiffs in Doster v. Kendall, (SD OH, filed 5/3/2022), plaintiffs allege:

The 2021 CORONA Conference was held at  the United States Air Force Academy. (Id.) Whistleblowers have reported that all Chaplains and all persons other than those MAJCOM commanders responsible for adjudicating accommodation requests to the Air Force’s vaccine mandate, were asked to leave the room, so that the Secretary of the Air Force’s expectations concerning religious accommodation requests could be communicated to Air Force senior leaders....  Upon information and belief, the Secretary of the Air Force and/or his designees, communicated that no religious accommodations could or should be approved for anyone who would be remaining in the Department of the Air Force....

As of the date of the Intervening Complaint, the Department of the Air Force has received thousands of requests for religious accommodation, has only approved 42 – all of them at the end of their careers, who were otherwise eligible for an administrative exemption, and has denied 5,129 initial requests; and 1,692 final appeals, for a total of 6, 821 denials. In the meantime, the Air Force currently has granted 1,013 medical exemptions, and 1,273 administrative exemptions....  As of April 12, the Air Force has administratively separated 261 active-duty Airmen.... The granting of more than two thousand medical and administrative exemptions belies any assertion that vaccination is mission-critical and that no exemptions can be granted....

(See prior related posting.) Coffee or Die Magazine reports on the filing.

Tribe Is Required Party In Challenge To Directive On Repatriation of Native American Remains

 In Weiss v. Perez, (ND CA, May 10, 2022), a California federal district court dismissed a suit brought by a San Jose State University anthropology professor who objects to the University president's directive that denied her access to Native American remains housed at the University. The directive was issued to prepare the remains for repatriation to the Muwekma Ohlone Tribe. Plaintiff, Prof. Elizabeth Weiss is an opponent of repatriation. The court held in part:

The Court finds that the Muwekma Ohlone Tribe is a required party under Rule 19 to adjudication of Professor Weiss’s claims about the Directive. Because the Tribe has sovereign immunity from suit and thus cannot be joined, Professor Weiss’s claims regarding the Directive must be dismissed with prejudice. The Court will, however, give Professor Weiss leave to amend her complaint as to her allegations about retaliation in the form of restricting access to and use of non-Native American remains and retaliation for her protected speech as it may pertain to her teaching and curational responsibilities.

Certiorari Filed On Whether Falun Gong Tables Are Protected Under FACEA

A petition for certiorari (full text) was filed yesterday in Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc., (Docket No. 21-1429, filed 5/10/2022). In the case, the U.S. 2nd Circuit Court of Appeals held that five tables on the sidewalk in Flushing, Queens, New York where Falun Gong adherents passed out flyers and displayed posters were not a "place of religious worship" under the Freedom of Access To Clinics Entrances Act that prohibits intentionally injuring, intimidating, or interfering with anyone who is exercising 1st Amendment religious freedom rights “at a place of religious worship.” (See prior posting.) [Thanks to James A. Sonne for the lead.]

Court Enjoins Part Of School's Policy On Transgender Students' Preferred Names

Ricard v. USD 475 Geary County, KS School Board, (D KS, May 9, 2022), is a suit brought by a Christian middle school math teacher who objects on religious grounds the school's policy of requiring teachers to refer to transgender students by their preferred names and pronouns, and requiring teachers not to disclose those names and pronouns to parents without the student's consent. A Kansas federal district court enjoined the school district from from disciplining the teacher for referring to a student by the student’s preferred name and pronouns in communications with the student’s parents in the regular course of the teacher's duties. The parties reached an agreement on the other aspect of the school's policy. The teacher would use students' preferred names, but not their preferred pronouns.

Plaintiff Lacks Standing To Challenge No-Fault Divorce Law Under 1st Amendment

 In King v. State of New York, (2d Cir., May 9, 2022), the U.S. 2nd Circuit Court of Appeals held that plaintiff lacked standing to challenge New York's no-fault divorce law on free exercise or Establishment Clause grounds. The court said in part:

Ms. King alleges that this law and the resulting divorce violated her Free Exercise and Establishment Clause rights by requiring her to become divorced despite her religious belief in marriage until death..... Because Ms. King alleges only the termination of a civil contract, she has not plausibly alleged that the civil judgment of divorce entered against her “sever[ed] the holy marriage covenant made before God,” ... or “chang[ed] her status under . . . the laws of God”....

Recent Articles Of Interest

From SSRN:

• Faraz Sanei, Reclaiming Establishment: Identity and the ‘Religious Equality Problem’, (71 U. Kans. L. Rev. __ (Forthcoming 2022)).
• Ansley McLellan, A Prayer For The Ministerial Exception: The Need for More Transparency and Less Rigidity in Certain Claims and Definitions, (September 20, 2021).
• Rakesh K. Anand, Reasoning About Faith: On the Religious Lawyer, (16 FIU L. Rev. 259 (2022)).
• Ioan Rotaru, Scientia Moralitas Conference Proceedings, (April 30, 2021).
• Olivia Roat, Free-Exercise Arguments for the Right to Abortion: Reimagining the Relationship Between Religion and Reproductive Rights, (UCLA Women's Law Journal, Vol. 29, No. 1, 2022).
• Philip Hackney, Written Testimony of Philip Hackney for the Hearing on Laws and Enforcement Governing the Political Activity of Tax-Exempt Entities, (U.S. Senate Finance Committee Subcommittee on Taxation and IRS Oversight, May 4, 2022).
• Zalman Rothschild, Individualized Exemptions, Vaccine Mandates, and the New Free Exercise Clause, (131 Yale L.J.F. 1106 (2022)).

From SSRN (Non-U.S. Law):

• Jianlin Chen & Shao Yuan Chong, The Curse of the Lecherous Spiritual Charlatans: Law, Moral Panic and Newspaper Reports of Rape by Religious Fraud in Taiwan, (University of Pennsylvania Asian Law Review, Vol. 17, 89-136 (2022)).
• Samy Ayoub, A Theory of a State? How Civil Law Ended Legal Pluralism in Modern Egypt, (Journal of Law and Religion, Vol. 37, No. 1, 2022).
• James J. Friedberg, States and Laws, Jews and Palestinians: Yadgar's Traditionalist Alternative. A Reflection on Yadgar, Israel's Jewish Identity Crisis (Cambridge, 2020) (Intercultural Human Rights Law Review, Vol. 16 (2021)).
• Muhammad Munir, Consent of the Guardian in Islamic Law and Pakistani Legal System: An Introduction, (April 11, 2022).
• Raphaële  Xenidis, The Concept of Direct Discrimination in European Anti-Discrimination Law: Theory, Practice and Limits, (Forthcoming book chapter in Colm O’Cinneide, Julie Ringelheim, Iyiola Solanke (eds.), Research Handbook on European Anti-Discrimination Law).
• Jaafar Almashaal, Some Reservations by the Islamic States on Major Human Rights Treaties, (April 7, 2022).
• Lyla Latif, FinTech led Tax Justice: Redistribution Using Zakat for the Socio-Economic Improvement of Women, Kardan Journal of Social Sciences and Humanities 4 (2) 44–55 (2021).

From Elsewhere:

• Linda Greenhouse, Should Courts Assess the Sincerity of Religious Beliefs?, The Atlantic, May 5, 2022.

1st Circuit Hears Oral Arguments On Religious Exemption To School's Vaccine Mandate

The U.S. 1st Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Harris v. University of Massachusetts, Lowell.  In the case, a Massachusetts federal district court rejected a student's objections to the manner in which her request for a religious exemption from the school's COVID-19 vaccine requirement was handled. (See prior posting.)

Church Cannot Remove Cremated Remains Over Objections Of Families

In Church of the Holy Spirit of Wayland v. Heinrich, (MA App., May 5, 2022), a Massachusetts state appellate court held that a church which had sold its property was not free to relocate cremated remains buried in its churchyard over the objections of families of those buried there. In the case, an Episcopal parish that had ceased operating sold it church building and attached burial ground to a Coptic church.  The Coptic church wanted to develop the land; it also had religious objections to cremation. The court said in part:

[I]n the absence of a governing statute, common law trust principles apply to the disinterment of human remains from a dedicated burial ground until the families of the deceased have abandoned the remains or the burial ground is no longer recognizable as such....

It is uncontested that the Coptic church has a sincerely held opposition to cremation on religious grounds. The next question, however, is whether judicial relief in favor of the families would substantially burden the Coptic church's exercise of its religious beliefs.... [W]e fail to see how a judicial order preventing the Coptic church from removing those remains would constitute government interference with that church's free exercise of religion rights. And it bears noting that the unilateral disinterment of the remains potentially might implicate the families' own free exercise of religion rights.

The court also concluded that allowing two parties who had purchased burial rights for their own remains to be buried in the churchyard next to remains of their families would not infringe the free exercise rights of the Coptic church:

[I]t simply would prevent the Coptic church from interfering with rights that the individuals themselves hold in the property. Nor has the Coptic church demonstrated that such a judicial order could be seen as compelling it to endorse cremation.

Today Is National Day Of Prayer

Yesterday President Biden issued a Proclamation (full text) declaring today to be National Day of Prayer. Federal law, 36 USC §169h, provides:

The President shall set aside and proclaim the first Thursday in May in each year as a National Day of Prayer, on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

The President's Proclamation reads in part:

On this day, we recognize the healing power of prayer, especially as we recover from the trauma and loss of the COVID‑19 pandemic.  Today we find ourselves in a moment of renewal — of lives saved, of new jobs created, and of new hope for rebuilding America.  Today is also a moment of reflection when we are called to address some of the greatest challenges humanity has ever faced — saving our planet from the existential threat of climate change; responding to attacks on democracy at home and abroad; and living up to our Nation’s promise of liberty, justice, and equality for all.

Cert. Filed In Challenge To California's Extension Of Time To Bring Childhood Sex Assault Claims

A petition for certiorari (full text) was filed last month with the U.S. Supreme Court in Roman Catholic Bishop of Oakland v. Superior Court of the State of California,, (Docket No. 21-1377, filed 4/15/2022). In the case, 9 dioceses and archdioceses challenge California legislation that extended the limitation period for suits alleging childhood sexual assault to plaintiff’s 40th birthday or 5 years after discovery; created a 3-year window to bring previously time-barred civil actions for for childhood sexual assault; and provided for treble damages in cover-up cases. National Catholic Register reports on the cert. petition.

Satanic Temple Wants Its Flag To Be Raised At Boston City Hall

In the wake of the Supreme Court's decision earlier this week in Shurtleff v. City of Boston holding that Boston should have allowed Camp Constitution to  briefly fly a Christian flag on a flag pole outside city hall, The Satanic Temple has asked Boston for similar treatment.  AP reports:

The Salem-based group tweeted a request filed Tuesday with the city property management department to raise a flag marking “Satanic Appreciation Week” from July 23-29....

Lucien Greaves, the organization’s co-founder, said in an email Wednesday that the group wants to show that religious liberty must mean respect for “all forms” of religious practice and religious opinion.

Adventist School Sues Over Refusal Of Tournament To Accommodate Its Sabbath Observance

Suit was filed this week in an Alabama federal district court against the Alabama High School Athletic Association (AHSAA) by the Seventh Day Adventist Oakwood Academy that was forced to forfeit its further participation in this year's high school basketball championship tournament because the AHSAA refused to move the time of its game three hours later to permit the school to play without violating its Sabbath. The complaint (full text) in South Central Conference of Seventh Day Adventists v. Alabama High School Athletic Association, (MD AL, filed 5/3/2022), contends that the refusal to accommodate its religious exercise violated the Free Exercise and Establishment Clauses of the 1st Amendment. Al.com reports on the lawsuit.

European Court Says Belgium Can Protect Religion and Religious Beliefs Of Employees

In LF v. SCRL, (CJEU, April 28, 2022), the Advocate General of the Court of Justice of the European Union issued a recommended answer to a question referred to it by the Brussels (Belgium) Labor Court.  At issue was whether a provision in Belgian law giving special protection to "religious or philosophical belief" of employees is consistent with European Council Directive 2000/78 on equal treatment in  employment. The Directive allows countries to enact laws that are more protective than those set out in the Directive. The Advocate General concluded that Belgium could give special protection to "religion and religious beliefs" but not just to "religious or philosophical beliefs" since those are not separately protected categories. The question arose in a case in which a Muslim woman was not offered an internship for which she interviewed because she insisted on wearing a hijab or other head covering in violation of the employer's rule that employees not wear clothing that expresses their religious, philosophical or political beliefs. [Thanks to Law & Religion UK for the lead.]

Asatru Inmate Loses RLUIPA and Equal Protection Challenges

In Watkinson v. Alaska Department of Corrections, (9th Cir., May 2, 2022), the U.S. 9th Circuit Court of Appeals held that Alaska did not violate the rights of a prisoner who was a practitioner of Asatru when it prevented him from using firewood purchased through the Prison Welfare Fund (PWF) for religious purposes, and when it did not allow use of the Prison Welfare Fund for inmates to pool funds to purchase juice and honey in bulk. The court said in part:

RLUIPA does not require a state to facilitate or subsidize the exercise of religion or pay for devotional accessories.... ADOC policies do not deny Plaintiff access to any item necessary for his religious ceremonies, and Plaintiff may procure all necessary items without access to the PWF. Defendants’ policies thus did not substantially burden the exercise of Plaintiff’s religious practice...

The court also rejected plaintiff's 1st Amendment claim.  In addition it rejected his Equal Protection claim, even though prison authorities allowed a Native American cultural group to use PWF-purchased firewood at the prison sweat lodge. According to the court:

The prison director testified that the groups are not similarly situated because the sweat lodge is a cultural rather than a religious activity.

Scientology Sued By Plaintiffs Alleging Years Of Abuse As Children

Suit was filed in a Florida federal district court last week under the Trafficking Victims Protection Reauthorization Act against the Church of Scientology by three plaintiffs who allege that they were abused by Scientology as children.  The 90-page complaint (full text) in Baxter v. Miscavige, (MD FL, filed 4/28/2022), alleges in part:

As children, all three Plaintiffs grew up in, and were raised by Scientology. This was not a peaceful or loving environment; instead, it was a world filled with abuse, violence, intimidation, and fear. Defendants considered Plaintiffs to be possessions, void of any rights, whose sole purpose was to serve Defendants. Plaintiffs were placed on a ship they could not leave and routinely punished by being humiliated, interrogated, and imprisoned, for the sole purpose of ensuring Plaintiffs would continue to perform back breaking free labor for the Defendants.

Wonkette reports on the lawsuit.

Suit Challenges Ohio's Health Care Conscience Law

Suit was filed last week in an Ohio state trial court challenging ORC §4743.10 which allows health care practitioners, hospitals and insurers to refuse to participate any health care service that violates teir conscience as informed by the moral, ethical, or religious beliefs or principles they hold. The suit was filed by a community health care system that provides services to the LGBTQ+ community.  The complaint (full text) in Equitas Health v. State of Ohio, (OH Com. Pl., filed 4/29/2022) contends that the law violates the Ohio constitution in that it is void for vagueness and violates the single-subject rule for legislation.  The provision was inserted into last year's 2400-page budget bill. News5Cleveland reports on the lawsuit.

Preliminary Injunction Denied To Navy SEAL With Religious Objection To COVID Vaccines

 In Navy SEAL 1 v. Austin, (D DC, April 29, 2022), a DC federal district court refused to grant a preliminary injunction to bar discharge or other adverse action against a Navy SEAL who refuses for religious reasons to comply with the military's COVID-19 vaccine mandate.  The court said that plaintiff does not face imminent discharge because another federal district court has issued a class-wide injunction against that. As to other adverse action, the court said in part:

As currently pled, there are a plethora of weaknesses in Plaintiff’s claims that counsel against preliminary relief. First, there appears to be a serious question as to whether Plaintiff’s claims are justiciable, because they require the Court both to evaluate the merits of military expertise and to weigh technical issues of public health and immunology based on novel science that remains unfixed as the current COVID-19 pandemic turns endemic. Second, the Court is concerned that the record as it currently stands does not properly resolve whether mandatory vaccination is the least restrictive means as to Plaintiff to accomplish the Government’s interest in force readiness and national security more broadly. That fault permeates Plaintiff’s RFRA claim, Free Exercise claim, and Equal Protection claim. Taken together, the Court concludes these issues militate against preliminary relief at this early stage of the case.

Draft SCOTUS Opinion Overruling Roe v. Wade Is Leaked To The Press

Benefitting from an apparently unprecedented breach of Supreme Court confidentiality, Politico has obtained and published the first draft of a 67-page (plus Appendix) majority opinion written by Justice Alito in Dobbs v. Jackson Women's Health Organization.  The draft opinion (full text) overrules Roe v. Wade.  It reads in part:

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely-- the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be "deeply rooted in this Nation's history and tradition" and "implicit in the concept of ordered liberty."...

The right to abortion does not fall within this category.

The draft opinion goes on to discuss the standards that should apply to challenges of state laws limiting abortion, saying in part:

Under our precedents, rational basis review is the appropriate standard for such challenges.... It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.... These legitimate interests include respect for and preservation of prenatal life at all stages of development, ... the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability.

Unanimous Supreme Court Says Boston Violated Free Speech Clause In Barring Christian Flag Outside City Hall

In Shurtleff v. City of Boston, (Sup.Ct., May 2, 2022), the U.S. Supreme Court held unanimously that Boston violated the free speech rights of Camp Constitution when it refused to allow it to briefly fly a Christian flag on a third flagpole outside city hall which private groups have used to fly flags of their choice for ceremonies. In the past, the city had approved some 50 different flags and had never before refused a request. Boston contended that the flag was government speech and cited Establishment Clause concerns in barring the Christian flag. The Court rejected that contention, saying in part:

We conclude that, on balance, Boston did not make the raising and flying of private groups’ flags a form of government speech. That means, in turn, that Boston’s refusal to let Shurtleff and Camp Constitution raise their flag based on its religious viewpoint “abridg[ed]” their “freedom of speech.”

Justice Breyer wrote the majority opinion which was joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Kavanaugh and Barrett. Justice Kavanaugh also filed a concurring opinion. Justice Alito, joined by Justices Thomas and Gorsuch filed an opinion concurring only in the judgment, saying in part:

...I cannot go along with the Court’s decision to analyze this case in terms of the triad of factors—history, the public’s perception of who is speaking, and the extent to which the government has exercised control over speech.... [T]reating those factors as a test obscures the real question in government-speech cases: whether the government is speaking instead of regulating private expression.

Justice Gorsuch, joined by Justice Thomas, filed a concurring opinion saying in part:

Not a single Member of the Court seeks to defend Boston’s view that a municipal policy allowing all groups to fly their flags, secular and religious alike, would offend the Establishment Clause.

How did the city get it so wrong? To be fair, at least some of the blame belongs here and traces back to Lemon v. Kurtzman, 403 U. S. 602 (1971)....

To justify a policy that discriminated against religion, Boston sought to drag Lemon once more from its grave. It was a strategy as risky as it was unsound. Lemon ignored the original meaning of the Establishment Clause, it disregarded mountains of precedent, and it substituted a serious constitutional inquiry with a guessing game. This Court long ago interred Lemon, and it is past time for local officials and lower courts to let it lie.

Bidens Extend Wishes for Eid Mubarak To Muslims Around The World

The Muslim festival of Eid al-Fitr began at sundown last night. President Biden and First Lady Jill Biden issued a Statement (full text) yesterday extending warmest wishes and Eid Mubarak to those celebrating the end of Ramadan. The Statement says in part:

This year, as we mark Eid al-Fitr, we hold in our hearts the millions of displaced persons and refugees around the globe who are spending this sacred holiday separated from their families and unsure of their future, but still hoping for a brighter tomorrow. As a nation we must always keep faith with those seeking a better life, and uphold our commitment to serving as a beacon of hope for oppressed people around the world. And, Muslims across the United States celebrate Eid, let us renew our dedication to our foundational commitment to respecting all faiths and beliefs.

The President and First Lady later today will host a reception in the East Room to celebrate Eid.

UPDATE: Here are the President's remarks at the White House Eid reception.

Recent Articles of Interest

From SSRN:

• Justin Collings & Stephanie H. Barclay, Taking Justification Seriously: Proportionality, Strict Scrutiny, and the Substance of Religious Liberty, 63 Boston College Law Review 453 (2022).
• Nicholas Aroney, Christianity and Constitutional Law,  (Forthcoming, in John Witte and Rafael Domingo (eds), Oxford Handbook on Christianity and Law, Oxford University Press, 2022).
• Kelly Deere, Democratizing Emergencies: The Local Predicament,  (101 N.C.L. Rev. F. ___ (Forthcoming, 2022)).
• Lael Daniel Weinberger, The Limits of Church Autonomy, (Notre Dame Law Review, Forthcoming).
• Maya McGrath, Teacher Prayer in Public Schools, (Fordham Law Review, Vol. 90, No. 5, 2022).
• Rosemary Teele Langford & Miranda Webster, Misuse of Power in the Australian Charities Sector, (University of New South Wales Law Journal, Vol. 45, No. 1, 2022).
• Bryan Thomas, et. al., Vaccine Ins and Outs: An Exploration of the Legal Issues Raised by Vaccine Passports, (C.D. Howe Institute working paper, 2021).
• Michael Conklin, Anti-Semitism and the Overlooked Benefits of Allowing 'Hate Speech', (April 2022).
• Julie C. Suk, A World Without Roe: The Constitutional Future of Unwanted Pregnancy, (William & Mary Law Review, Vol. 64, No. 2, 2022).
• Gregory Bigler, Foundations of Tribal Society: Art, Dreams, and the Last Old Woman, (UCLA School of Law, The Indigenous Peoples’ Journal of Law, Culture & Resistance, 7(1) (2022)).
• Jeffrey Pennell & Reid K. Weisbord, Trust Alteration and the Dead Hand Paradox, (ACTEC Law Journal, 2023 Forthcoming).

From SmartCILP:

• Ayelet Hoffmann Libson & Adi Libson, Replacing God with Big Data: Personalizing Copyright Law, 39 Boston University International Law Journal 181-206 (2021).
• Kellen R. Funk, Book Review. Propertied Rites. Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion, by Jack N. Rakove. Church State Corporation: Construing Religion in US Law, by Winnifred Fallers Sullivan, 36 Constitutional Commentary 175-212 (2021).

Oklahoma Legislature Passes Fetal Heartbeat Abortion Law

The Oklahoma legislature on Thursday gave final approval to SB1503 (full text), a Fetal Heartbeat Abortion Law modeled after the Texas statute.  The law bars abortions once a physician detects a fetal heartbeat (usually around 6 weeks in a pregnancy) except in cases of medical emergency.  The ban is enforceable only through private civil actions for statutory damages of not less than $10,000 brought by any person other than a public official. An action may be brought against anyone who performs, induces, aids or abets an abortion (other than the woman on whom an abortion was performed). Once damages have been awarded in one action, a court may not award relief for the same abortion in subsequent actions. A court may not award attorney's fees to a defendant in actions under the law, and actions under the law are not subject to the Oklahoma Religious Freedom Act. Governor Kevin Stitt is expected to quickly sign the bill into law.

On Thursday, even though the law had not yet been signed by the governor, suit was filed in the Oklahoma Supreme Court challenging the law.  The complaint (full text) in Oklahoma Call for Reproductive Justice v. State of Oklahoma, (OK Sup. Ct., filed 4/28/2022), which also names as defendants the clerk of courts in every Oklahoma county, alleges that the law violates ten separate provisions of the Oklahoma Constitution. Vox reports on developments.

President Declares May "Jewish American Heritage Month"

President Biden today issued a Proclamation (full text) declaring May 2022 as Jewish American Heritage Month. The Proclamation reads in part:

The Jewish American story, and the story of our Nation as a whole, is fueled by faith, resilience, and hope.  It is a story defined by a firm belief in possibilities, the resolve to make real the promise of America for all Americans, and a commitment to perfecting our Union, heeding the timeless words of Rabbi Tarfon, the first-century scholar who taught “It is not your duty to finish the work, but neither are you at liberty to neglect it.”

An interesting sidelight: Typically Presidential Proclamations end with the date of the Proclamation. The year is routinely set out, for example, as: "in the year of our Lord two thousand twenty-two, and of the Independence of the United States of America the two hundred and forty-sixth." The Jewish American Heritage Month Proclamation omits the phrase "in the year of our Lord, recognizing the Christian nature of that reference.

Oklahoma Bans Nonbinary Designations On Birth Certificates

 On Tuesday, Oklahoma Governor Kevin Stitt signed SB 1100 (full text) which provides:

... [T]he biological sex designation on a certificate of birth issued under this section shall be either male or female and shall not be nonbinary or any symbol representing a nonbinary designation including but not limited to the letter “X”.

Fatherly reports on the new law.

11th Circuit Hears Oral Arguments In City Prayer Vigil Case

 Yesterday, the U.S. 11th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Rojas v. City of Ocala, Florida. In the case, , a Florida federal district court held that the City of Ocala, Florida and its police chief violated the Establishment Clause when they organized and promoted a prayer vigil in response to a shooting spree plaguing the city. (See prior posting.) Fox35 reports on the case ahead of the oral arguments.

Free Exercise Challenge To Washington Vaccine Mandate Is Dismissed

 In Wise v. Inslee, (ED WA, April 27, 2022), a Washington federal district court dismissed various challenges to Washington state's vaccine mandate for certain state employees, including free exercise, Title VII religious discrimination, and Establishment Clause claims. The court said in part:

... [T]he State clearly has a legitimate government interest in preventing the spread of COVID-19, an interest that has been endorsed by the Ninth Circuit.... Additionally, the Proclamation is rationally related to that interest because it is based on overwhelming evidence that the vaccines are safe and effective, and increasing vaccination rates among those employees who come into regular contact with vulnerable populations is a rational action to reduce the spread of COVID-19. Accordingly, the Proclamation easily survives federal constitutional scrutiny....

More Context Needed In Student's Suit Over Right To Wear Shirt With Anti-Gay Bible Verse

In B.A.P. v. Overton County Board of Education, (MD TN, April 27, 2022), a Tennessee federal district court refused to dismiss a suit challenging on free exercise and free speech grounds a school's disciplining of a student who refused to take off a shirt that read: "homosexuality is a sin - 1 Corinthians 6:9-10." The court said in part:

 "[T]o justify prohibition of a particular expression of opinion" under Tinker, a school must show that it acted out of '"more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,' but rather, 'that the school authorities had reason to anticipate that the [student’s expression] would substantially interfere with the work of the school or would impinge upon the rights of other students.'"...

Here, an adequate analysis of B.A.P.’s First Amendment claims ... requires a more developed record than is available on a motion to dismiss. ....

Plaintiffs allege that Henson removed B.A.P. from class due to the message on her shirt, Melton did not allow her to return to class because of this message, and both Melton and Henson told B.A.P. she could not wear the shirt to school going forward. The Amended Complaint does not, however, supply specific facts and context about Livingston Academy and the surrounding community at the time Melton and Henson took these actions. Without this context, the Court cannot determine whether Melton and Henson reasonably forecasted that the message on B.A.P.’s shirt would cause substantial disruption or interference with the rights of other students. Accordingly, B.A.P.’s First Amendment claims against Melton and Henson will not be dismissed for failure to state a claim.

Parents Sue Over School's Nondisclosure Of Children's Gender Identity Issues

Suit was filed in a Massachusetts federal district court earlier this month by four parents challenging a school policy to not notify parents of their child’s gender nonconformity or transgender status unless the child consents. The complaint in Foote v. Ludlow School Committee, (D MA, filed 4/12/2022), (full text) alleges that the policy violates parental rights of all the plaintiffs, as well as the free exercise rights of certain of the plaintiffs. It alleges in part:

158. Plaintiffs have sincerely held religious beliefs that all people are to be treated with respect and compassion, and that respect and compassion do not include misrepresenting an individual’s natural created identity as either a male or a female.

159. Plaintiffs have sincerely held religious beliefs that individuals are to speak the truth, including speaking the truth regarding matters of sexual identity as a male or female.

160. Defendants’ actions in excluding Plaintiffs Feliciano and Salmeron from decision making regarding their children’s sexual and gender identity target the Plaintiffs’ beliefs regarding the created order, human nature, sexuality, gender, ethics, and morality which constitute central components of their sincerely held religious beliefs.

Christian Post reports on the lawsuit.

Suit Challenges Maine's Ban On Sunday Hunting

Suit was filed yesterday in a Maine state trial court challenging Maine's ban on Sunday hunting. The complaint (full text) in Parker v. Camuso, (ME Super. Ct., filed 4/27/2022),  contends that the Right To Food Amendment to Maine's constitution (Art. I, Sec. 25) adopted in 2021 invalidates the state's ban on Sunday hunting as applied to individuals who hunt on Sundays to harvest food for themselves and their families. The complaint calls the Sunday hunting ban "a historical and religious anachronism."  Portland Press Herald reports on the lawsuit.

1st Circuit: Employees With Religious Objection To Vaccine Mandate Not Entitled To Injunction

In Together Employees v. Mass General Brigham, Inc., (1st Cir., April 27, 2022), the U.S. 1st Circuit Court of Appeals denied a preliminary injunction to hospital employees who were denied religious exemptions from the hospital's COVID vaccine mandate. The court held that the employees failed to show the irreparable injury necessary to obtain injunctive relief, saying in part:

It is black-letter law that "money damages ordinarily provide an appropriate remedy" for unlawful termination of employment.

European Court Says Switzerland Wrongly Denied Asylum To Pakistani Convert To Christianity

In M.A.M. v. Suisse, (ECHR, April 26, 2022) [decision in French], the European Court of Human Rights ruled in favor of a Pakistani asylee in Switzerland.  The Court's English language press release summarizes the case and its holding:

M.A.M. is a Pakistani national who had converted from Islam to Christianity while in Switzerland, where he had arrived in 2015 and where his asylum request had been rejected.

[T]he ... Court ... held, unanimously, that if the decision to expel the applicant to Pakistan were to be executed there would be a violation of Article 2 (right to life) and Article 3 (prohibition of torture, inhuman or degrading treatment) of the European Convention on Human Rights, in the absence of an assessment of the risk to which the applicant was exposed on account of the overall situation of Christian converts in Pakistan and of his own personal situation. The Court ruled that the assessment by the Swiss authorities of the risk facing the applicant on account of his conversion to Christianity if he were expelled to Pakistan had been insufficient to uphold the rejection of his asylum request....

[Thanks to @sacrareleges for the lead.]

California Court Says "Get" Denial Can Be Basis For Denying Husband Child Custody

The Forward last week reported on a February 7 decision by a California trial court which interpreted 2020 amendments to the state's Family Code (Senate Bill 1141) as allowing a family court to use a husband's refusal to give his wife a Jewish bill of divorce (a "get") as the basis for awarding the wife child custody. Senate Bill 1141 adds "coercive control", defined as "a pattern of behavior that in purpose or effect unreasonably interferes with a person’s free will and personal liberty," as the basis for ex parte orders.  That, in turn, creates a rebuttable presumption that awarding child custody to the person exerting coercive control is not in the best interests of the child. The court ruled that denial of a get amounted to coercive control. The full text of the court's decision does not appear to be available online.

CAIR Issues Report On Structural Islamophobia

Yesterday, the Council on American-Islamic Relations (CAIR) released a report titled Still Suspect: The Impact of Structural Islamophobia (full text).The Executive Summary says in part:

The title of this report is Still Suspect: The Impact of Structural Islamophobia. The word structural is significant in the understanding that Islamophobia has seeped into every part of our society. It has made its way into government institutions and the public sphere through laws and policies, political rhetoric, and other manifestations.  For example, in 2021, CAIR received a total of 6,720 complaints nationwide involving a range of issues including immigration and travel, discrimination, law enforcement and government overreach, hate and bias incidents, incarceree rights, school incidents, and anti-BDS/free speech. These complaints clearly indicate that government discrimination and bias continue to have a disproportionate effect on American Muslims and further demonstrate that our communities continue to be viewed with suspicion.

CLS Members Sue University Of Idaho Over No-Contact Orders

Three members of the Christian Legal Society at the University of Idaho filed suit against University administrators on Monday contending that the University's Title IX Policy and Conduct and Discipline Policies, facially and as applied to them violate their free speech, free exercise and due process rights.  The complaint (full text) in Perlot v. Green, (D ID, filed 4/25/2022) alleges that the University's Office of Civil Rights and Investigations issued "no contact" orders against the three students barring the from having contact with another student with whom they had had a discussion about Christian views on sexuality and marriage. ADF issued a press release announcing the filing of the lawsuit.

Reports On 2021 Antisemitic Incidents Released

 The ADL yesterday released its annual Audit of Antisemitic Incidents 2021 (full text). According to the report's Executive Summary:

In 2021, ADL tabulated 2,717 antisemitic incidents throughout the United States. This is a 34% increase from the 2,026 incidents tabulated in 2020 and the highest number on record since ADL began tracking antisemitic incidents in 1979.

Of the 2,717 incidents recorded in 2021, 1,776 were cases of harassment, a 43% increase from 1,242 in 2020, and 853 incidents were cases of vandalism, a 14% increase from 751 in 2020. The 88 incidents of antisemitic assault (a 167% increase from 33 in 2020), involved 131 victims; none of the assaults were deadly.

Meanwhile, last week B'nai B'rith Canada released its 2021 Audit of Antisemitic Incidents in Canada (full text). According to the report:

The 2021 numbers show an increase in antisemitic incidents, with an overall jump of 7.2% in comparison to 2020.

There were some changes in patterns. Covid quarantine restrictions including lockdowns appear to have caused the number of cases of in-person harassment to decline significantly. These cases dropped from 620 in 2020 to 367 in 2021 or a 40.8% decline. However, that lack of direct contact may have been a factor in the jump in cases of online hate.

In fact, online hate has become the preferred method of targeting Jews. B’nai Brith logged 2,093 incidents of online hate, or an increase of 12.3% over the 2020 figures of 1,863 cases....

According to the report, there were 75 incidents of antisemitic violence in 2021, compared to only 9 in 2020. Jewish News Syndicate reports on the Canadian audit. 

New Arizona Law Protects Right To Clergy Visits In Health Care Institutions

Arizona Governor Doug Ducey yesterday signed HB 2449 (full text) which protects the right of residents of assisted living, nursing and hospice facilities to receive visits by clergy even during states of emergency, as well as when a resident's death is imminent. ADF issued a press release on the bill.

USCIRF Issues 2022 Annual Report

Yesterday, the U.S. Commission on International Religious Freedom released its 2022 Annual Report (full text) which documents developments during 2021.  USCIRF issued a press release summarizing the 100-page report, saying in part:

USCIRF recommends 15 countries to the State Department for designation as “countries of particular concern” (CPCs) because their governments engage in or tolerate “systematic, ongoing, and egregious violations.” These include 10 that the State Department designated as CPCs in November 2021: Burma, China, Eritrea, Iran, North Korea, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan—as well as five others: Afghanistan, India, Nigeria, Syria, and Vietnam. For the first time ever, the State Department designated Russia as a CPC in 2021, which USCIRF had been recommending since 2017. Regrettably, the State Department removed Nigeria as a CPC....

The ... Report also recommends 12 countries for placement on the State Department’s Special Watch List (SWL) based on their governments’ perpetration or toleration of severe violations. These include three that the State Department placed on that list in November 2021: Algeria, Cuba, and Nicaragua—as well as nine others: Azerbaijan, CAR [Central African Republic], Egypt, Indonesia, Iraq, Kazakhstan, Malaysia, Turkey, and Uzbekistan....

The 2022 Annual Report further recommends to the State Department seven non-state actors for redesignation as “entities of particular concern” ... for systematic, ongoing, egregious violations...: al-Shabaab, Boko Haram, the Houthis, Hay’at Tahrir al-Sham ..., Islamic State in the Greater Sahara ..., Islamic State in West Africa Province ..., and Jamaat Nasr al-Islam wal Muslimin....

... The report also highlights [other] important global developments and trends related to religious freedom.... These include: the COVID-19 pandemic and religious freedom, blasphemy and hate speech law enforcement, transnational repression, religious intolerance in Europe, deteriorating religious freedom conditions in South Asia, and political upheaval that raises religious freedom concerns.

Waiver In Plea Agreement Precludes Appeal Of Ban On Possessing Antisemitic Material

In United States v. Holzer, (10th Cir., April 25, 2022), the U.S. 10th Circuit Court of Appeals held that the appellate waiver provision in defendant's plea agreement precludes him from appealing Special Condition Nine of his supervised release which he contends infringes his freedom of religion, thought and expression. The court explains:

Defendant Richard Holzer was arrested and criminally charged after federal undercover agents determined that Holzer had taken substantial steps towards bombing a synagogue in Pueblo, Colorado. Holzer subsequently pleaded guilty, pursuant to a written plea agreement, to one count of intentionally attempting to obstruct persons in the enjoyment of their free exercise of religious beliefs through force, in violation of 18 U.S.C. §§ 247(a)(2) and (d)(3), and one count of maliciously attempting to damage and destroy, by means of fire and explosives, a synagogue, in violation of 18 U.S.C. § 844(i). The district court sentenced Holzer to a term of imprisonment of 235 months, to be followed by a fifteen-year term of supervised release. The district court also ordered Holzer to comply with eleven special conditions of supervised release, including Special Condition Nine, that prohibits him from acquiring, possessing, or using any material depicting support for or association with antisemitism or white supremacy.

Marine With Religious Objections To COVID Vaccine Is Denied Preliminary Injunction

In Short v. Berger, (D AZ, April 22, 2022), an Arizona federal district court refused to grant a preliminary injunction to a Marine Corps major who was denied a religious exemption from the military's COVID vaccine mandate.  Plaintiff is serving as a staff judge advocate.  According to the court:

To date, the USMC has received over 3,600 requests for a religious exemption from the vaccine requirement but has approved only seven of those requests. It appears that, in all seven cases, the applicant was already in the process of separating from the Marines at the time the request was granted. In contrast, the USMC has approved over 900 medical exemptions, including at least 20 permanent medical exemptions.

The court went on:

In his motion for preliminary injunction, Major Short conspicuously does not assert that separation, loss of training and promotion opportunities, loss of pay, and/or a less-than-honorable discharge constitute irreparable injuries.... Instead, the sole theory of irreparable harm articulated in Major Short’s motion is that “being forced to choose between receiving the injection contrary to his religious beliefs, or defying an order, is itself a denial of free exercise, and directly causes irreparable harm.” ... [T]he tangible employment-related harms that Major Short may suffer ... do not qualify as irreparable under Ninth Circuit law because they can be remedied through retrospective relief....  

As for Major Short’s coercion theory, the Court acknowledges that, in many of the recent military vaccine challenges arising outside the Ninth Circuit, courts have suggested that a service member suffers an irreparable injury the moment he is forced to choose between following his religious beliefs and following an order to be vaccinated.... But however persuasive those cases might otherwise be, this Court must follow Ninth Circuit law and the Ninth Circuit has not adopted—and, indeed, appears to have rejected—this theory of irreparable harm....

The court also concluded that beyond the irreparable injury issue, there was uncertainty as to whether Plaintiff would succeed on his RFRA claim.

Prayer At The 50-Yard Line: SCOTUS Hears Football Coach's Case This Morning

This morning, the U.S. Supreme Court will hear oral arguments in Kennedy v. Bremerton School District. In the case, the U.S. 9th Circuit Court of Appeals upheld a high school's actions against a football coach who insisted on praying at the 50-yard line immediately after football games. The coach was placed on paid administrative leave and given negative performance reviews. He did not reapply to coach the following year. A divided 9th Circuit denied en banc review. (See prior posting.) Amy Howe at SCOTUSblog previews the case, saying in part:

... Kennedy and the school district disagree not only about the legal issues and their implications, but also about many of the facts, including exactly why Kennedy lost his job. Kennedy says he was fired for briefly and privately praying at midfield; Laser and the school district counter that he was suspended for “refusing to stop holding public prayers at the 50-yard line,” which created both pressure for students to join him and “genuine safety concerns for students on the fields because of the spectacle that ensued from his media outreach on praying.”

The SCOTUSblog case page has links to the filings in the case, including the dozens of amicus briefs that have been submitted. Live audio of the oral arguments, which begin at 10:00 AM, will be available at this link. When the transcript and recording of the oral arguments become available later today, I will update this post with links to them.

UPDATE Here are links to the transcript and audio of the oral arguments.

Recent Articles of Interest

From SSRN:

• Nelson Tebbe & Micah Schwartzman, The Politics of Proportionality,  (120 Michigan Law Review 1307 (2022)).
• Guy Baldwin, The Coronavirus Pandemic and Religious Freedom: Judicial Decisions in the United States and United Kingdom, ((2022) Judicial Review).
• Christopher Mills, Blake Davis & Richard Osborne, Is Viability Dicta?, (Regent University Law Review Pro Tempore (2022)).
• John Fee, The Freedom of Speech-Conduct, (109 Kentucky Law Journal 81 (2020-2021)).
• Aaron Tang, Consequences and the Supreme Court, (Northwestern University Law Review, Forthcoming).
• Rachel Rein, Justice Breyer’s Principled Pragmatism and Kagan’s New Living Constitutionalism and Lite Textualism, (Trento Student Law Review (Forthcoming Spring 2022)).

From SSRN (Non-U.S. Law):

• Ruji Auethavornpipat, Hate Speech and Incitement in Malaysia, (in Preventing Hate Speech, Incitement, and Discrimination: Lessons on Promoting Tolerance and Respect for Diversity in the Asia Pacific, 119-158 (2021)).
• Modh Imran, Nikah-Halala in India: Practice, Precept, and Perception, (April 15, 2022).
• John Picton, Lehtimäki v Cooper: Duty and Jurisdiction in Charity Law, ((2021) 84 Modern Law Review 383-393).
• Abdulla Galadari, Ijtihād Holds Supremacy in Islamic Law: Muslim Communities and the Evolution of Law, (Religions 13: 369 (2022)).

Plaintiff In Abuse Case May Discover Psychological Report In Priest's Personnel File

In Harmon v. Diocese of Albany, (NY App. Div., April 21, 2022), a New York state appellate court upheld a trial court's discovery order in a case alleging sexual abuse of  plaintiff by a Catholic priest in the 1980's.  The trial court ordered the Diocese to turn over to plaintiff a memo, a report and correspondence in the priest's personnel file from a psychologist who had been retained by the the Bishop to determine whether it would be appropriate for the priest to resume his ministry and the risk of recidivism. The court also upheld the trial court's order requiring disclosure to plaintiff of the personnel files of 48 former priests whose names are on the Diocese's list of credibly accused clergy. Albany Times-Union reports on the decision.

Denial Of Permission To Build Buddhist Meditation Center Did Not Violate RLUIPA

In Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama, an Alabama federal district court dismissed a RLUIPA and 1st Amendment challenge to the city's denial of permission to build a meditation center and related structures in an area zoned residential. Plaintiff is a Buddhist religious organization.  The court said in part:

The Court finds Plaintiffs have shown, for the purposes of summary judgment, the City’s decision effectively deprives them of any viable means by which to engage in protected religious exercise, but the application of the City’s Zoning Ordinance generally does not since the meditation center could be located at a commercially zoned property as of right.... 

... Plaintiffs have not demonstrated the City’s zoning decisions substantially burdened their religious exercise, and even if Plaintiffs’ religious exercise was substantially burdened by the denial of their Applications, the Court finds the decision was the least restrictive means to further the City’s compelling interest in its Zoning Ordinance...

Company Is Not "State Actor" When It Complies With Federal Vaccine Mandate

In Ciraci v. J. M. Smucker Co., (ND OH, April 20, 2022), an Ohio federal district court dismissed a suit by employees of a food manufacturer who claim that their 1st Amendment free exercise rights were infringed when their employer denied them religious exemptions and required them to comply with the Presidential Executive Order mandating COVID vaccinations for employees of federal contractors. The court said in part:

For Plaintiffs to succeed on their Free Exercise Clause ... claim, they need to establish first that Smucker is a state actor.... 

A private entity is not subject to constitutional constraints except in a few limited circumstances, for example: (1) “when the private entity performs a traditional, exclusive public function;” (2) “when the government compels the private entity to take a particular action;” (3) “when the government acts jointly with the private entity.”...

Here, Plaintiffs allege that Defendant is a federal actor because it acted pursuant to “policies, practices, customs, and procedures created, adopted, and enforced under color of federal law.” Without more facts, this allegation is conclusory and does not plead enough facts to place it in any of the exceptions listed above.

Court Enjoins Autopsy In Suit By Inmate Facing Execution

In Smith v. Li, (MD TN, April 20, 2022), a Tennessee federal district court, in a RLUIPA suit by an inmate about to be executed, enjoined the state's medical examiner from performing an autopsy after the execution, collecting fluids postmortem, or performing any other procedure violating plaintiff's the body's physical integrity after death. The court said in part:

It may be that the medical community does not consider the collection of fluid samples to constitute an “autopsy.” That fact, though, has no bearing on either the sincerity or the content of Smith’s religious beliefs, which do not depend on any such distinction. It is not the place of Dr. Li, the government, or the court to try to convince Smith that he should not consider the postmortem collection of his bodily fluids to be an impermissible intrusion on his religiously mandated bodily integrity. If Smith does sincerely believe that—and the court finds that he does— then Dr. Li’s stated intention to violate his beliefs implicates RLUIPA, whether Dr. Li finds Smith’s theological explanation persuasive or not....

Under these circumstances, where the decision whether to conduct an autopsy is left to the discretion of the county medical examiner and, alternatively, to that of the state chief medical examiner or the district attorney general, it is difficult to see how the government could show that conducting an autopsy is necessary to fulfill a compelling government interest. If the interest were truly compelling, the statute presumably would mandate it.

Baseball Team Scout Sues For Religious Exemption From Team's COVID Vaccine Mandate

Yesterday suit was filed in a D.C. federal district court by a scout for the Washington Nationals baseball team who was denied an accommodation for his religious objections to the baseball club's COVID vaccine mandate. The complaint (full text) in Gallo v. Washington Nationals Baseball Club, LLC, (D DC, filed 4/20/2022), claims discrimination on the basis of religion and disability. Thomas More Society issued a press release announcing the filing of the lawsuit.

Arizona Passes New Protections For Religious Organizations

The Arizona legislature this week gave final passage to HB 2507 (full text) which is primarily aimed at preventing state and local governments from closing down religious organizations in future states of emergency.  However it also includes this broader provision:

State government or any private person who sues under or attempts to enforce a law, rule or regulation that is adopted by the state or a political subdivision of this state may not take any discriminatory action against a religious organization on the basis that the organization ... engages in the exercise of religion as protected under the First Amendment....

AZ Mirror reports on the bill.

British Tribunal Rejects Complaint Of Muslim Employee Over Use Of "Allahu Akbar" In Security Test

In Ali v Heathrow Express Operating Company Ltd., (EAT, April 7, 2022), the United Kingdom Employment Appeal Tribunal upheld an Employment Tribunal's dismissal of an Equality Act religious harassment complaint brought by a Muslim employee of the Heathrow Express train service. At issue was the conduct of a Heathrow Airport employee who duties involved carrying out security checks. According to the Tribunal:

[T]his involved creating and leaving suspicious objects to test how security officers responded to them.  In August 2017 it carried out a test using a bag containing a box, some electric cabling and, visible at the top, a piece of paper with the words “Allahu Akbar” written in Arabic. 

The Tribunal below held:

We conclude that in the circumstances that existed at the time it was not reasonable for the claimant to take offence at this incident. He should have understood that in adding this phrase Mr Rutherford’s team were not seeking to associate Islam with terrorism - instead they were seeking to produce a suspicious item based on possible threats to the airport.

In affirming the Employment Tribunal, the appellate court said in part:

It is not said, on appeal, that the tribunal should have concluded that these words had been chosen gratuitously with the deliberate purpose of causing upset....

We understand that a strand of the claimant’s case was that the use of this phrase was particularly insensitive, and offensive to him, not merely because it referenced Islam, but because of the sacred nature and significance of this particular phrase in religious observance.  While we do not accept that it was perverse not to regard the conduct of the second respondent as amounting in itself to the stereotyping of Muslims generally as terrorists or terrorist sympathisers, we do understand that he also says that, because such stereotyping is a significant and serious blight on the lives of Muslims, the use of these words in this context was particularly charged for him, more than, say, the use of an animal-rights slogan co-opted by some terrorists would be for a vegan.  However, we cannot say that these features point to the conclusion that the tribunal could only properly have found that the claimant’s perception that the conduct had the effects on him of the kind referred to in section 26(1)(b) was a reasonable one.

Law & Religion UK reports on the decision.

New Jersey Diocese Settles Abuse Claims Of 300 Survivors For $87.5M

 The Catholic Diocese of Camden, New Jersey announced yesterday:

The Diocese ... and the Official Committee of Tort Claimant Creditors ... which represents the interests of approximately 300 survivors of sexual abuse, have reached a settlement which will provide for the establishment of a substantial trust to compensate survivors of sexual abuse within the Diocese. The trust will be funded with $87.5 million from the Diocese and related Catholic entities over a four-year period. The settlement also includes maintaining or enhancing the protocols for the protection of children, which were first implemented by the Diocese in 2002. The settlement remains subject to Bankruptcy Court approval.

AP reports on the settlement.

Kansas Governor Vetoes Transgender Athlete Ban

The Kansas City Star reports that on Friday, Kansas Governor Laura Kelley vetoed Senate Bill 160 which banned transgender women from competing in women's sports. The ban would have applied to interscholastic, intercollegiate, intramural and club athletic teams or sports sponsored by a public elementary or secondary school or a postsecondary educational institution, and to teams that compete against these schools. In her veto message, Kelley said in part:

We all want a fair and safe place for our kids to play and compete. However, this bill didn’t come from the experts at our schools, our athletes, or the Kansas State High School Activities Association. It came from politicians trying to score political points.

Supreme Court Refuses Interim Relief In Airman's Religious Challenge To COVID Vaccine Mandate

Yesterday, the U.S. Supreme Court by a vote of 6-3 refused to grant an injunction pending appeal in Dunn v. Austin, (Docket No. 21A599, April 18, 2022). Justices Thomas, Alito and Gorsuch would have granted relief. At issue was a suit by an Air Force Reserve officer who has religious objections to the COVID vaccine. His request for a religious exemption from the military's vaccine mandate was denied. The history is explained in the officer's Emergency Application for Injunction Pending Appeal:

[T]he district court denied a preliminary injunction and an injunction pending appeal. While the motion for a preliminary injunction was pending, respondents removed applicant from his command; he does not seek reinstatement to that post, but seeks only protection against further punishment, including a discharge, because of his religious beliefs. After entering interim relief, the United States Court of Appeals for the Ninth Circuit denied an injunction pending appeal in a one-page order over a dissent by Judge Bade.

(Full text of district court's ruling and the 9th Circuit's decision.) New York Times reports on the Supreme Court's ruling.

Recent Articles of Interest

From SSRN:

• Rafael Domingo Osle, Toward a Global Canon Law Centred on the Human Person, (March 4, 2022).
• Surya Prabhat Pali, Balancing Environment and Religion: An Analysis of the Judicial Approach, (Issue 37, Lex Terra 2022).
• Alan Edward Brownstein & Vikram D. Amar, Locating Free-Exercise Most-Favored-Nation-Status (MFN) Reasoning in Constitutional Context, (Forthcoming, 2022 Loyola University of Chicago Law Journal).
• Khaled Beydoun & Nura Sediqe, Unveiling, (California Law Review, Vol. 111, Forthcoming 2023).
• Patricia Wiater, Why Do Corporations Have Human Rights? The Emerging Jurisprudence on Non-Human Subjects in Regional Courts, (December 18, 2021).
• Anthony Sangiuliano, Can There Be a Unified Doctrine of Anti-Discrimination Law in Canada?, (Journal of Law & Equality, Vol. 18, No. 1, 2022).
• Reva B. Siegel & Melissa Murray, Equal Protection and Abortion: Brief of Equal Protection Constitutional Law Scholars Serena Mayeri, Melissa Murray, and Reva Siegel as Amici Curiae in Support of Respondents in Dobbs v. Jackson Women's Health Organization, (September 20, 2021).
• Kenneth Grad, Civil Law Alternatives in the Fight Against Hate Speech: The Case Study of the Marcus Hyman Act, (forthcoming in Canadian Jewish Studies / Études juives canadiennes, Vol. 33, Spring 2022).
• John Picton, Lehtimäki v Cooper: Duty and Jurisdiction in Charity Law, ((2021)84 Modern Law Review 383 – 393).

From SmartCILP:

• Vanita Saleema Snow, Veiling and Inverted Masking, 36 Berkeley Journal of Gender, Law & Justice 115-149 (2021).
• Alyssa Penick, From Disestablishment to Dartmouth College v. Woodward: How Virginia's Fight over Religious Freedom Shaped the History of American Corporations, 39 Law & History Review 479-512 (2021).
• Emily J. Hutchison, Book Review. Popular Memory and Gender in Medieval England: Men, Women, and Testimony in the Church Courts, c. 1200–1500, by Bronach C. Kane, 39 Law & History Review 601-603 (2021).

Biden Releases Statement On Easter

President Biden earlier today released a Statement on Easter (full text) wishing a Happy Easter to all. The statement reads in part:

On this day and each day, we pray for ... peace, freedom, and the basic dignity and respect for all of God’s children. As we look ahead with His blessing, may we share a common hope for the future, reaffirm love and compassion for one another, and cherish the blessing of the dawn of new possibilities.