COVID Vaccine Mandate Without Religious Exemption Is Upheld

In Does v. Hochul, (ED NY, Sept. 30, 2022), a New York federal district court dismissed challenges to New York's COVID vaccine mandate for healthcare workers brought by five employees with religious objections to the vaccine. In evaluating plaintiffs' free exercise claims, the court concluded that the regulation, which contains no religious exemption, is subject only to rational basis review, saying in part:

The plaintiffs argue that the mandate is not neutral because it includes a medical exemption, and thus “treats religious exemptions less favorably than some nonreligious exemptions;” in the plaintiffs’ words, this “double standard is not a neutral standard.”... 

Section 2.61 is neutral on its face. It does not refer to religion at all, and applies to “all persons employed or affiliated with a covered entity” who could “potentially expose other covered personnel, patients or residents to” COVID-19; the only exception is for employees with medical conditions that qualify for a medical exemption...

The rule at issue in this case involves no “singling out” of religious employees. Indeed, Section 2.61 applies equally to all employees who can be vaccinated safely, regardless of their religious beliefs or practices, whether they have political objections to the vaccine, or question their efficacy or safety, or any of the many other reasons that people choose not to get vaccinated....

The court also rejected plaintiffs' Title VII challenge, saying in part:

The sole “accommodation” the plaintiffs seek—a religious exemption from the vaccine requirement— would impose an undue hardship on the Private Defendants because it would require them to violate state law.

Village Residents Lack Standing In Establishment Clause Challenge To Zoning Law

In Citizens United to Protect Our Neighborhoods v. Village of Chestnut Ridge, New York, (SD NY, Sept. 30, 2022), a New York federal district court dismissed for lack of standing a suit by a civic organization and Village residents alleging that the Village's new zoning code violated the Establishment Clause by favoring one religious group, Orthodox Jews.  The Code created new categories of religious uses and houses of worship, including "residential gathering places" so that single-family homes could be opened for religious activities, subject to additional parking requirements. This facilitated small-scale worship services often used by Orthodox Jews who for religious reasons cannot drive on the Sabbath and holidays. The court said in part:

Plaintiffs claim the new zoning amendments “target religious uses with special favorable treatment over secular uses.” (Id.) However, Plaintiffs have not identified any injury, nonetheless a particularized and concrete one. The law is clear that generalized grievance is insufficient to establish standing....

Individual Plaintiffs claim they have direct exposure standing because the New Zoning Law was rushed into law and gives preferential treatment to OJC and religious uses over secular uses, such that “the construction of an untold number of houses of worship” will serve as “constant reminders of the law and its endorsement of religion.” ... This is an insufficient basis ... for finding direct exposure standing....

11th Circuit: City Council Invocation Is Government Speech

In Gundy v. City of Jacksonville Florida, (11th Cir., Sept. 30, 2022), the U.S. 11th Circuit Court of appeals held that an invocation opening a city council meeting delivered by Reginald Gundy, a pastor invited by a member of Council, is government speech.  At issue is a suit by the pastor whose microphone was cut off in the middle of his invocation by the city council president who concluded that the invocation had crossed over into a political attack. The court concluded that the pastor's suit should be dismissed, saying in part:

Mr. Gundy's appeal centers on the fact that he brought counts against Mr. Bowman and the City based on alleged violations of his free speech and free exercise rights under the United States Constitution and the Florida Constitution.

As a threshold and dispositive matter, ... we hold that the district court erred in deeming the invocation private speech in a nonpublic forum instead of government speech. And since Mr. Gundy did not allege a violation of his rights under the Establishment Clause, which is the proper constitutional vehicle to attack the government speech at issue here, his appeal must fail.

Certiorari Denied In Scientology Arbitration Case and Falun Gong Leafleting Case

Today's 48-page Order List from the U.S. Supreme Court on its opening day of the term includes the denial of review in two cases of interest:

Church of Scientology v. Bixler (Docket No. 22-60, cert. denied 10/3/2022): In the case, a California state appellate court held that former Church of Scientology members were not bound by their agreement to submit all disputes with the Church to the Church's Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the Church. (See prior posting.)

Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc. (Docket No. 21-1429, cert. denied 10/3/2022) and Chinese Anti-Cult World Alliance, Inc. v. Zhang Jinrong (Docket No. 21-1556, cert. denied 10/3/2022)- In the case the 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.” In addition, the cross-petition for review raised the issue of the validity of the statute under the commerce clause. (See prior posting.)

Special Permit Requirement Only For Houses Of Worship Violates 1st Amendment

In Omar Islamic Center Inc. v. City of Meriden, (D CT, Sept. 30, 2022), a Connecticut federal district court held that a zoning regulation that required places of worship to obtain a special permit to operate in areas zoned M-4 (Planned Industrial District) violates plaintiffs' 1st Amendment free exercise rights. Plaintiff sought to use a vacant commercial building as a mosque. The court said in part:

Regulations allowed hotels, motels, and convention centers, as well as numerous shops and stores including bakeries, restaurants, and theaters, to operate as of right in the M-4 district, without needing to apply for a special permit.... Places of worship, however, were required to obtain a special permit before opening their doors. It is clear to the Court that, under the test set forth by the Supreme Court in Tandon, at least some comparable secular activities were therefore treated more favorably than religious activities under the Regulations. Thus, the law is not neutral and generally applicable under free exercise principles, and it must be examined with strict scrutiny.

Defendants have not defended the law under either a rational basis or strict scrutiny standard. In fact, they have proffered no rationale underlying the law whatsoever.

The court also found that the regulation violated plaintiff's equal protection rights. The court refused to pass on plaintiff's RLUIPA claims because it was unclear whether or not plaintiff had an actual property interest in the building.

Qualified Immunity Protects Defendants Who Denied Religious Exemptions From COVID Vaccine Mandate

In Jane Does 1-11 v. Board of Regents of the University of Colorado, (D CO, Sept. 29, 2022), a Colorado federal district court dismissed a number of claims by current and former students and employees of the University of Colorado who were denied religious exemptions from the University's COVID vaccine mandate. Some of the claims were dismissed on mootness and sovereign immunity grounds. Other claims were dismissed on qualified immunity grounds, with the court saying in part:

Given the unprecedented nature and global scope of the Covid-19 pandemic as well as its devastating impacts, the Court finds the allegations in the Complaint do not establish that these Defendants acted unreasonably in light of existing precedent and in the specific context of this case. Therefore, at a minimum, they did not violate Plaintiffs’ clearly established rights.

Supreme Court Opens Its October 2022 Term Today

The Supreme Court opens its new term this morning.  Washington Times reports that the traditional Red Mass that precedes the Court's new term was held yesterday at Washington's Cathedral of St. Matthew the Apostle.  Chief Justice Roberts, Justice Barret and retired Justice Breyer attended. Among the cases already on the Court's docket for this term is 303 Creative LLC v. Elenis (SCOTUS blog case page). The date for its oral argument has not yet been set. In the case, the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for religious reasons refuses to create websites that celebrate same-sex marriages. (See prior posting.) The Court granted review only on the free speech issue in the case. The Court will continue to broadcast live audio feed of oral arguments at this link. We can also expect the traditional First Monday long Order List to be released this morning.

Recent Articles of Interest

From SSRN:

• David Schorr, History, Theory, and Jewish Tort Law: Sinai and Shmueli's Maimonides and Contemporary Tort Theory, (Jewish Law Annual, Forthcoming).
• Nicholas McBride, The Nature of Evil, (September 10, 2022).
• Joshua Neoh, The Allah Case: What is the Name of God?, (Law and Religion in the Commonwealth (Hart, 2022)).
• Robert W. McGee, Serkan Benk & Bahadir Yuzbasi, Religious Attitudes Toward Bribery: A Comparative Study (Chapter 2, Chapter 3, Chapter 4, Chapter 5, Chapter 6, Chapter 7, Chapter 8, by McGee & Benk,  Chapter 38, Chapter 39, (in Robert W. McGee & Serkan Benk (Eds.), The Ethics of Bribery: Theoretical and Empirical Studies. Switzerland: Springer, Forthcoming).
• Wendy Bach & Nicolas P. Terry, HIPAA v. Dobbs, (September 15, 2022).
• Joseph Cyriac & Ashim Alex, An Outlook into Cultural Hypocrisy and Caste Transformation in India, (August 31, 2022).
• Mayowa Aroyewun, Challenges and Prospects of Cryptocurrency in Islamic Finance in Nigeria, (October 8, 2021).
• Nicholas McBride, The Nature of Evil, (September 10, 2022).
• Miranda Webster & Rosemary Teele Langford, An Analysis of the ACNC's Approach to Compliance and Enforcement, (September 13, 2022).

From SmartCILP:

• Russell K. Robinson, What Christianity Loses When Conservative Christians Win at the Supreme Court, [Abstract], 2021 Supreme Court Review 185-224 (2021).
• Lee Epstein & Eric A. Posner, The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait, 2021 Sup. Ct. Rev. 315-348 (2021).

6th Circuit Affirms That County Clerk Kim Davis Had No Qualified Immunity Defense

In Ermold v. Davis, (6th Cir., Sept. 29, 2022), the U.S. 6th Circuit Court of Appeals affirmed a Kentucky federal district court decision that Rowan County Clerk Kim Davis does not have qualified immunity in a suit against her for stopping the issuance of all marriage licenses to avoid issuing licenses to same-sex couples. The court said in part:

[P]laintiffs have not only “alleged” but also now “shown” that Davis violated their constitutional right to marry.... And, as we held three years ago, that right was “clearly established in Obergefell.”

The court held that insofar as Davis has raised a free exercise defense under the First Amendment, that issue should be resolved when the case goes to trial and not at the current motion-to-dismiss stage. [Thanks to Thomas Rutledge for the lead.]

Courtroom Invocations Did Not Violate Establishment Clause [UPDATED]

In Freedom From Religion Foundation v. Mack, (5th Cir., Sept. 29, 2022), the U.S. 5th Circuit Court of Appeals held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain does not violate the Establishment Clause. The court said in part:

The plaintiffs cry coercion because Texas Justice of the Peace Wayne Mack opens his court with a ceremony that includes a prayer. But Mack also takes great pains to convince attendees that they need not watch the ceremony—and that doing so will not affect their cases. Some attendees say they feel subjective pressure anyway. Yet the plaintiffs have no evidence suggesting that “coercion is a real and substantial likelihood.” Town of Greece v. Galloway, 572 U.S. 565, 590 (2014).

Want of evidence showing coercion dooms their case. In holding otherwise, the district court disregarded the Supreme Court’s most recent guidance.

First Liberty Institute issued a press release announcing the decision.  The 5th Circuit had previously granted a stay which allowed the invocations to go on while the case was on appeal.

UPDATE: This was a 2-1 decision. Judge Jolly filed an opinion dissenting in part.  He argued that the case needed to be sent back to the district court for additional fact finding.  He criticized the majority's opinion, saying in part:

Plaintiffs have produced considerable evidence showing that Judge Mack conducts his opening prayer and other religious ceremonies “in such a way as to oblige the participation of objectors.” ...  For the majority to find that there is no evidence of coercion, suggests, in my opinion, willful blindness and indisputable error....

[D]espite digging into the history books, the majority’s opinion comes up dry on historical precedent.... [And] the majority inaccurately presents recent Supreme Court precedent.

DC Circuit Hears Oral Arguments From Abortion Protesters

On Wednesday, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments (audio of full oral arguments) in Frederick Douglass Foundation, Inc. v. DC.  In the case, a D.C. federal district court dismissed claims that enforcing ordinances prohibiting the defacing property against anti-abortion protesters but not against racial-justice protesters violated free exercise and free speech protections.  The abortion protesters sought to paint or chalk D.C. streets with the slogan "Black Pre-Born Lives Matter." (See prior posting.) An ADF press release has more on the case.

Jewish Plaintiffs Challenge New York's Ban On Firearms In Places of Worship Or Religious Observation

Suit was filed yesterday in a New York federal district court challenging the constitutionality of recently enacted New York Penal Law §265.01-e which bans possession of a firearm, rifle or shotgun in "any place of worship or religious observation." The suit was brought by a modern Orthodox Jewish synagogue, its president and another Jewish individual. The complaint (full text) in Goldstein v. Hochul, (SD NY, filed 9/29/2022) details a number of recent incidents of violence against Jews and alleges in part:

91. Penal Law § 265.01-2(2)(c) discriminates against religious beliefs and regulates and prohibits conduct because it is undertaken for religious reasons.

92. The Statute makes it more dangerous to attend a “sensitive location” than it would be had that law not been enacted, because it strips away the ability for people in that sensitive location to defend themselves. The Statute singles out religious locations for this elevated, state-sanctioned, danger. This acts as a deterrent for law-abiding people to enter such “sensitive locations,” including places of worship....

94. By singling out places of worship and religious observation for reduced Second Amendment rights, the Statute constitutes a religious gerrymander....

The suit also alleges that the statute is unconstitutionally vague, saying in part:

111. As observant Jews, nearly every location is a place of religious observation for plaintiffs Goldstein and Ornstein....

It also contends that the law violates the Second Amendment, the Equal Protection Clause and various provisions of the New York State Constitution. Hamodia reports on the lawsuit.

City Employees Did Not Show Sincere Religious Objection To COVID Vaccine

In Keene v. City and County of San Francisco, (ND CA, Sept. 23, 2022), a California federal district court dismissed a suit by two city employees who objected on religious grounds to the city's COVID vaccine mandate. The court said in part:

Neither Plaintiff has demonstrated that their religious beliefs are sincere or that those beliefs conflict with receiving the COVID-19 vaccine. There are no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines contain fetal cells or are otherwise derived from murdered babies.... Feeling passionately about something or having a specific personal preference does not merit the status of a sincere religious belief....

The court denied a preliminary injunction under Title VII and California's Fair Employment and Housing Law, also concluding: 

It is well-settled law that loss of employment does not constitute irreparable harm for purposes of an injunction....

Suit By Mosque Over Zoning Denials Can Move Ahead

In Adam Community Center v. City of Troy, (ED MI, Sept. 28., 2022), a Michigan federal district court refused to dismiss RLUIPA and constitutional claims against the city of Troy, Michigan. Plaintiff alleged wrongful denial of necessary zoning variances so plaintiff could use its property for Muslim religious services and classes. The court said in part:

Plaintiff has identified pieces of circumstantial evidence that may lead a fact-finder to conclude Troy acted with discriminatory animus towards Muslims. Thus, a question of fact on this claim exists and summary judgment is denied....

[T]here exists a question of fact for trial as to whether ZO § 6.21 was actually applied in a neutral manner or whether it was applied for the purpose of excluding Muslim assemblies from Troy...

The record contains ample evidence to support Adam’s contention that Troy’s stated reasons for denying Adam’s variance application were pretextual and intended to prevent Adam from opening a mosque in the City. Thus, a factfinder could conclude that Adam’s constitutional rights were violated.

The court previously concluded that the city had violated the equal terms and substantial burden provisions of RLUIPA, and now ordered a hearing on damages for those violations. Detroit News reports on the decision.

Suit Challenges California's Linking Of Hinduism With Caste System

A Hindu advocacy organization has filed suit in a California federal district court challenging allegations in the California Civil Rights Department's enforcement actions against caste discrimination that link the caste system to Hinduism. The complaint (full text) in Hindu American Foundation, Inc. v. Kish, (ED CA, filed 9/20/2022), alleges in part:

[A] caste system or discrimination on its basis are in no way a legitimate part of Hindu beliefs, teachings, or practices. 

HAF vehemently opposes all types of discrimination; and takes great exception to the State of California defaming and demeaning all of Hinduism by attempting to conflate a discriminatory caste system with the Hindu religion. 

Worse, California defames Hinduism by doing what the U.S. Constitution says it cannot, assert a government right to resolve questions of religious doctrine....

As a result, the CRD’s violation of the First Amendment rights of all Hindu Americans ... would likely lead employers to actively  discriminate against Hindu and South Asian Americans in order to avoid the undefined maze of  legal uncertainty that would be California’s caste-discrimination bar....

Stopping caste-based discrimination is a worthy goal that directly furthers Hinduism’s belief in the equal and divine essence of all people. But wrongly tying Hindu beliefs and practices to the abhorrent practice of caste-discrimination undermines that goal, violates the First Amendment rights of all Hindu-Americans, and can only lead to a denial of due process and  equal protection to Americans based on their religious affiliation and national origin.

(See prior related posting.) Hindu American Foundation issued a press release announcing the filing of the lawsuit.

Texas Supreme Court: Enforceability Of Islamic Pre-Nup Must Be Decided Before Ordering Arbitration

In In re Ayad, (TX Sup. Ct., Sept. 23, 2022), the Texas Supreme Court held that the trial court should determine the validity and enforceability of an Islamic Pre-Nuptial Agreement before, rather than after, ordering the parties to arbitration by a Fiqh Panel pursuant to the agreement. In a divorce proceeding, the wife challenged the enforceability of the agreement on various grounds, including that the term "Islamic Law" is too indefinite and that the Agreement is void as violating public policy. Volokh Conspiracy discusses the decision. [Thanks to Steven H. Sholk for the lead.]

3rd Circuit Remands RLUIPA Challenge To Sex-Offender Treatment Program

In Robins v. Wetzel, (3d Cir., Sept. 28, 2022), the U.S. 3rd Circuit Court of Appeals vacated the dismissal of a portion of a Pennsylvania federal district court opinion in a suit in which an inmate challenged the sex offender treatment program that was required for his release on parole.  The program required him to admit his guilt. According to the court:

Although he was willing to admit that he engaged in sexual relations with his wife, who was a minor child at the time, he was unwilling to admit that that conduct was illegal....

He contended that:

[M]arriage was a sacred tenet of his religion, and he could not admit the illegality of his sexual conduct, which he construed as denouncing his religious marital vows, without violating his religious beliefs.

The court held:

[T]his Court has not had occasion to consider an acceptance-of-responsibility component of a sex-offender treatment program in the context of RLUIPA or RFRA. Given the lack of controlling precedent, we ... remand for the District Court to address the RLUIPA and RFRA claims in the first instance.

California Governor Signs New Laws Protecting Abortion Rights

Yesterday California Governor Gavin Newsom signed a package of 13 additional bills to strengthen abortion rights in the state.  According to a press release from his office, these laws will:

further protect people from legal retaliation and prohibit law enforcement and corporations from cooperating with out-of-state entities regarding lawful abortions in California, while also expanding access to contraception and abortion providers in California.

The press release details each of the new laws.

Alabama High School Athletic Association Changes Rules To Accommodate Sabbath Observance

1819 News reports that yesterday the Alabama High School Athletic Association voted to amend its rules to accommodate religious requests for scheduling changes. The rule change comes in response to a lawsuit filed in May by Oakwood Adventist Academy after it was forced to forfeit a Saturday afternoon 1A high school playoff game that conflicted with its Sabbath observance. Becket issued a press release announcing the rule change.

Messianic Jewish Missionaries May Proceed With Their Defamation Suit

In One for Israel v. Reuven,(SD FL, Sept. 26, 2022), a Florida federal district court in a defamation case held that Messianic Jewish missionaries are not necessarily "limited public figures" who must prove "actual malice" to succeed in a defamation suit. Refusing to dismiss the suit, the court held that the theological conflict between Judaism and Christian missionaries is not a public controversy. At issue in the case was a YouTube video in which defendant, an Orthodox Jewish rabbi, claimed that the missionaries beat up another rabbi at a meeting with an individual who was considering converting to Messianic Judaism. The court also rejected the claim that the ecclesiastical abstention doctrine requires dismissal of the suit. The court said in part:

The statements said in the video have nothing to do with religion; they were about a violent attack that did not happen. These issues have nothing to do with religious doctrine or conflict.

Volokh Conspiracy has more on the decision.

Catholic Bishops Release Report On State of the Church

Last week, the U.S. Conference of Catholic Bishops released a report on the state of the Church in the United States. Titled National Synthesis of the People of God in the United States of America for the Diocesan Phase of the 2021-2023 Synod (full text), a section captioned "Enduring Wounds" says in part:

Chief among the enduring wounds ... is the still-unfolding effects of the sexual abuse crisis.... The sin and crime of sexual abuse has eroded not only trust in the hierarchy and the moral integrity of the Church, but also created a culture of fear that keeps people from entering into relationship with one another....

Another enduring wound widely reflected in synodal consultations was the experience that the Church is deeply divided. Participants felt this division as a profound sense of pain and anxiety. “As one participant shared, the divisive political ideologies present in our society have seeped into all aspects of our lives.” Division regarding the celebration of the liturgy was reflected in synodal consultations.... The most common issue regarding the liturgy is the celebration of the pre-Conciliar Mass.”...

Many regional syntheses cited the perceived lack of unity among the bishops in the United States, and even of some individual bishops with the Holy Father, as a source of grave scandal.

Cuba Referendum Approves Family Code Allowing Same-Sex Marriage and More

AP reports that on Sunday, voters in Cuba approved a new Family Law Code that allows same sex couples to marry and to adopt. The over 400-Article Code also allows surrogate pregnancies and expands grandparent rights. Cuba's evangelical movement opposed the new Code. The Code was approved by 66.9% in favor to 33.1% opposed. [Thanks to Scott Mange for the lead.]

President Biden Sends Rosh Hashana Greetings

The Jewish holiday of Rosh Hashana begins at sundown this evening. President Biden today issued a statement (full text) sending warm wishes from Jill and himself to everyone in the United States, Israel and around the world celebrating the holiday. He said in part:

Just as individuals can seek renewal, so too can nations. This past year has seen encouraging progress for our nation.... With COVID-19 no longer the same disruptive threat it was, families can once more gather around the Rosh Hashanah dinner table and sit together in their synagogues. 

At the same time, we have much more work to do to realize the values that bind us as Americans and to restore the soul of our nation.

Recent Articles of Interest

From SSRN:

• Harmony Decosimo, Taxonomizing Professional Identity Formation: The Soul of Legal Education, (67 Saint Louis University Law Journal, Forthcoming 2023).
• Nicholas Reaves, Religious Autonomy in Carson v. Makin, (Harvard Journal of Law and Public Policy Per Curiam 2022).
• Kenneth A. Bamberger & Ariel Mayse, Revisiting a Jurisprudence of Obligation, (Touro Law Review, Vol. 37, No. 4, 2022).
• Homayoon Rafatijo, Islamic Republic: An Oxymoron, (William Mitchell Law Review, Vol. 49, 2022).
• Or Bassok, Legitimacy without Legality, (September 12, 2022).
• Amanda Shanor, “LGBTQ+ Need Not Apply”, (The Regulatory Review (2021)).

From SSRN (Abortion Rights):

• Elizabeth E. Joh, Dobbs Online: Digital Rights as Abortion Rights, (September 5, 2022).
• David S. Cohen, Greer Donley & Rachel Rebouche,  Abortion Pills, (September 20, 2022).
• Christen Hammock Jones, A Second Chance at Choice?: Challenging Abortion 'Reversal' as Law and Medical Practice, (29 American University Journal of Gender, Social Policy & the Law (2022)).
• James W. Fox, An Historical and Originalist Defense of Abortion in Florida, (September 20, 2022).

Satanic Temple Files Novel Challenges To Indiana Abortion Law

Earlier this week, The Satanic Temple filed suit in an Indiana federal district court challenging on somewhat novel grounds Indiana's recently enacted restrictive abortion ban. The complaint (full text) in The Satanic Temple v. Holcomb, (SD IN, filed 9/21/2022) not only alleges that the ban violates Indiana's Religious Freedom Restoration Act because it outlaws the Satanic Abortion Ritual, but also alleges other constitutional defects. It contends in part:

59. The property right of an Involuntarily Pregnant Woman to exclude or remove a Protected Unborn Child from her uterus cannot be taken by the State of Indiana without just compensation pursuant to the Takings Clause of the Fifth Amendment to the U.S. Constitution.

60. The property right to exclude or remove a Protected Unborn Child from a woman’s uterus has substantial commercial value as established by over twenty-five years of experience with gestational surrogacy in Indiana.

It alleges a 13th Amendment violation, contending:

68. The Indiana Abortion Ban causes each Involuntarily Pregnant Woman to provide the services necessary to sustain the life of a Protected Unborn Child that occupies and uses her uterus.

The suit also alleges unconstitutional discrimination between women who become pregnant by accident and those who become pregnant by rape or incest, as well as unconstitutional discrimination between women who become pregnant by accident and those who become pregnant by in vitro fertilization. Courthouse News Service reports briefly on the lawsuit.

Arizona Judge Reinstates Pre-Roe Abortion Ban

Arizona §13-3603, a statute that originally was passed in 1864 and subsequently reenacted, criminalizes abortion unless it is necessary to save the life of the mother. Persons who procure of perform abortions are subject to imprisonment for not less than two or more than five years. In 1973, in a suit brought by Planned Parenthood, Arizona courts held that the statute was unconstitutional because of the U.S. Supreme Court's ruling in Roe v. Wade.  Now that Roe has been overruled, Arizona's Attorney General and an intervenor in the case filed a Motion for Relief From the 1973 Judgment.  In Planned Parenthood Center of Tucson, Inc. v. Brnovich, (AZ Super., Sept. 22, 2022), an Arizona trial court judge granted the motion, saying in part:

The Court finds that because the legal basis for the judgment entered in 1973 has now been overruled, it must vacate the judgment in its entirety.

In March of this year, Arizona enacted a law banning abortions after 15 weeks, except in a medical emergency. BBC News reporting on this week's decision allowing §13-3603 to go into effect, says:

It is now unclear whether the 15-week ban or the near-total ban will take precedence.

Governor of Arizona Doug Ducey said it would be the 15-week ban, but his fellow Republican Attorney General Mark Brnovich said it should be the older ban.

RLUIPA Suit Charges City Attempt To Prevent Growth Of Orthodox Jewish Population

Suit was filed earlier this month in an Ohio federal district court by a University Heights, Ohio homeowner who was told by the city that he needed to obtain a special use permit in order to hold Jewish prayer services with ten friends in his home. The complaint (full text) in Grand v. City of University Heights, Ohio, (ND OH, filed 9/8/2021), says in part:

3. Since Grand moved into his home in 2019, he experienced discrimination based on his religion. After Grand’s invitation for friends to join him in Orthodox Jewish prayer in January of 2021, the City, led by its mayor, waged a zealous campaign of capricious enforcement of its local ordinances specifically targeting Grand and several other Orthodox Jewish prayer groups. This campaign is directly responsive to a hostile segment of the mayor’s constituency that seeks to prevent the growth of the City’s Orthodox Jewish population by limiting the locations where Orthodox Jews can pray.

4. Additionally, the City has targeted Grand individually for intentional, arbitrary, and discriminatory application of its ordinances that have caused him substantial injuries.

5. This action challenges certain provisions of the [city ordnances under] ... the United States Constitution, the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”), the Ohio Constitution, and Ohio common law.

News5 Cleveland reports on the lawsuit. 

Indiana Abortion Ban Preliminarily Enjoined

In Planned Parenthood Northwest, Hawaii, Alaska, Indiana, Kentucky, Inc. v. Members of the Medical Licensing Board of Indiana, (IN Cir. Ct., Sept. 22, 2022), an Indiana state trial court judge yesterday issued a preliminary injunction barring enforcement of Indiana's recently enacted restrictive abortion ban. The court said in part:

Regardless of whether the right is framed as a privacy right, a right to bodily autonomy, a right of self-determination, a bundle of liberty rights, or by some other appellation, there is a reasonable likelihood that decisions about family planning, including decisions about whether to carry a pregnancy to term-- are included in [Indiana Constitution] Article I, §1's protections....

Because of these considerations, and the history of Indiana's constitution being interpreted to provide greater protection to individual citizens that its federal counterpart, there is a reasonable likelihood that this significant restriction of personal autonomy offends the liberty guarantees of the Indiana Constitution and the Plaintiffs will prevail on the merits as to their claim that S.B. 1 violates Article I, Section 1 of the Indiana Constitution.

The case was decided by a Special Judge after two other judges recused themselves (Background). ACLU Indiana issued a press release announcing the decision. ABC News reports that the state plans to file an appeal of the decision, and that abortion clinics in the state are preparing to reopen.

Police and Fire Fighters Sue Over COVID Vaccine Mandate

Suit was filed last week in a New Jersey federal district court by a group of seven police officers and firefighters who were denied a religious accommodation to excuse them from a COVID vaccine mandate. The complaint (full text) in Aliano v. Township of Maplewood, (D NY, filed 9/16/2022), contends that the denial violates Title VII and the New Jersey Law Against Discrimination. New Jersey 101.5 reports on the lawsuit.

Musicians Sue Over Denial Of Religious Exemption From Vaccine Mandate

A Title VII religious discrimination lawsuit was filed yesterday in a Florida federal district court by three musicians who have religious objections to COVID vaccines. They were placed on partial-paid leave by their private employer, an arts organization that operates the Naples Philharmonic, when they refused to comply with the employer's vaccine mandate.  The complaint (full text) in Leigh v. Artis-Naples, Inc., (MD FL, filed 9/21/2022), alleges in part:

Artis-Naples implemented an illegal policy that no exemption or accommodation would or could be granted to any employee who had to be present onsite to perform their job....

Artis-Naples irrationally and pretextually argues that accommodating unvaccinated employees who follow alternative preventative measures would place an “undue hardship” on its operations—specifically, that unvaccinated employees present “a direct threat” of infection to patrons and coworkers....

Florida law requires Artis-Naples to exempt Plaintiffs from the Mandate....

As a matter of law, it can never be an “undue hardship” for an employer to comply with the state law and public policy.

School Gets Declaratory Relief Stating That It Should Have Receive State Bus Transportation

In St. Augustine School v. Underly, (ED WI, Sept. 19, 2022), a Wisconsin federal district court, deciding a case on remand from the 7th Circuit, issued a declaratory judgment that state school officials violated Wisconsin law by failing to furnish bus transportation to students attending St. Augustine. At issue was whether St. Augustine School was affiliated with the same denomination as another nearby Catholic school so that only one of the schools would be entitled to bus transportation. The district court said that under the terms of the remand, it could not grant relief on plaintiff's constitutional claims. However, because another appeal was likely, the court did express its opinion on those claims, saying in part:

because the rule as applied by the defendants did not cut St. Augustine off from benefits “for no other reason” than that it was a religious school,... the defendants’ denial of benefits did not violate the Free Exercise Clause.

Employees Fired For Religious Refusal Of COVID Vaccine Bring Title VII Suit

Four former employees of a continuing care retirement community filed suit in an Alabama federal district court last week claiming that they were wrongly fired for refusing the COVID vaccine on religious grounds.  The 105-page complaint (full text) in Hamil v. Acts Retirement-Life Communities, Inc., (SD AL, filed 9/15/2002), contends that plaintiffs were subjected to a hostile work environment, harassment, and wrongful termination based on their sincerely held religious beliefs. They were denied religious exemptions, or had previously granted religious exemptions rescinded. According to the complaint:

Such conduct was undertaken to preserve Defendants' exorbitant sums of monetary assistance in the form of government grants, coronavirus relief funds, and Medicare and Medicaid funds....

In the case at hand, the crux of the issue is the unlawful employment practices undertaken by Defendant and not the constitutional validity of any vaccine mandate....

The complaint contains lengthy descriptions of plaintiffs' religious beliefs and alleges various violations of Title VII as well as numerous state law claims. 1819News reports on the lawsuit.

Appropriation To Christian School Challenged Under South Carolina Constitution

Suit was filed yesterday in a South Carolina state trial court contending that a state budget appropriation of $1.5 million to  Christian Learning Centers of Greenville County violates the provision in South Carolina's constitution that bars the use of public funds "for the direct benefit of any religious or other private educational institution." The complaint (full text) in Parker v. McMaster, (SC Com. Pl., filed 9/20/2022) asserts that the appropriation also contravenes the state constitution's Establishment Clause. The appropriation is aimed at partially funding a $14 million residential school for disadvantaged and at-risk youth. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

Christian Rescue Mission Charged With Religious Discrimination Files Suit

Suit was filed yesterday in a Wyoming federal district court by a Christian rescue mission challenging interpretations by the EEOC and the Wyoming Department of Workforce Services of the employment discrimination provisions of state and federal law.  The complaint (full text) in Rescue Mission v. EEOC, (D WY, filed 9/20/2022), contends that the Rescue Mission's free exercise and free expression rights were violated when the EEOC and WDWS found probable cause that the Mission engaged in religious discrimination in refusing to hire non-Christians as associates in its Thrift Stores.  The agencies took the position that a religious exemption was available only as to "ministerial" positions. The Rescue Mission's complaint alleges in part:

The [Thrift store] position has spiritual qualifications that require candidates to “[m]aintain a personal relationship with Jesus Christ,” “live a Godly life in public and private, thereby providing a Christian role model for those we seek to reach,” and “[a]gree with the WRM Statement of Faith.”

ADF issued a press release announcing the filing of the lawsuit.

11th Circuit: Muslim Prison Chaplain Loses Suit Over Exclusions From Execution Chamber

In Maisonet v. Commissioner, Alabama Department of Corrections, (11th Cir., Sept. 16, 2022), the U.S. 11th Circuit Court of Appeals affirmed the dismissal of a suit by a Muslim volunteer Chaplain who claimed that his free exercise rights were infringed when he was prevented from being in the execution chamber when two inmates to whom he ministered were executed. The court held that the chaplain lacked standing to obtain declaratory or injunctive relief because he did not identified any death row inmate whose execution he will be unable to attend in the future. Alabama now allows chaplains in the execution chamber. The court concluded that the chaplain did have standing to pursue his claim for damages in the cases of the two inmates whose executions he was unable to attend previously. However qualified immunity shields defendants from liability.

7th Circuit: Muslim Inmate Entitled To Religious Exemption From Strip Searches By Transgender Guards

In West v. Radtke, (7th Cir., Sept. 16, 2022), the U.S. 7th Circuit Court of Appeals held that a Muslim inmate's rights under RLUIPA were violated when prison authorities refused to exempt him from strip searches conducted by transgender men. Wisconsin first argued that the inmate, Rufus West, should not care that he is searched by a transgender inmate because Islam equally condemns exposing the naked body to any guard, male or female. The court responded that:

The substantial-burden inquiry does not ask whether West’s understanding of his faith obligations is correct.

Prison authorities went on to argue that the burden on West's religious exercise was justified by the state's compelling interest in complying with the anti-discrimination requirements of Title VII which bars discrimination against its transgender guards. The Court said, however:

The prison offers no argument under established Title VII doctrine that exempting West from cross-sex strip searches would inflict an adverse employment action on its transgender employees....

The prison’s Title VII argument would fail even if it could show that exempting West from cross-sex strip searches would lead to an adverse employment action. Title VII permits sex-based distinctions in employment where sex “is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise.” 42 U.S.C. § 2000e-2(e)....

Sex is a bona fide occupational qualification for performing strip searches of prisoners with sincere religious objections to cross-sex strip searches.

The Court also rejected the prison's equal protection defense. It remanded for further development the inmate's 4th Amendment claims. 

Recent Articles of Interest

From SSRN:

• Elizabeth Sepper & James David Nelson, Government's Religious Hospitals, (Virginia Law Review, Forthcoming 2023).
• Marc O. DeGirolami, Traditionalism Rising, (Journal of Contemporary Legal Issues, Forthcoming).
• Samuel Director, Of Blood Transfusions and Feeding Tubes: Anorexia-Nervosa and Consent, (Public Affairs Quarterly, Forthcoming).
• Bridget J. Crawford & Walter Edward Afield, Yesterday's Protestor May Be Tomorrow's Saint: Reimagining the Tax System Through the Work of Dorothy Day, (Tax Law Review, Forthcoming).
• Robert Kahn, The Mask Wars and Social Control: Lessons from the 1927 Unveiling Campaign in Soviet Uzbekistan, (California Western International Law Journal, forthcoming 2022).
• Thomas Donnelly, Supreme Court Legitimacy: A Turn to Constitutional Practice, (Brigham Young University Law Review, Vol. 47, No. 1487, 2022).
• Jack M. Balkin, Abortion and Partisan Entrenchment, (September 8, 2022).
• Mark Kende, Constitutional Pragmatism and Abortion, (Drake Law Review, Vol. 64, No. 4, 2021).
• Michael L. Smith, Abandoning Original Meaning, (Albany Law Review, Vol. 86, 2023 (Forthcoming)).
• Ari Ezra Waldman, Policing Queer Sexuality, (Michigan Law Review, Vol. 121, Forthcoming).

From SmartCILP:

• Eva Johan & Hanna Schebesta, Religious Regulation Meets International Trade Law: Halal Measures, a Trade Obstacle? Evidence from the SPS and TBT Committees, 25 Journal of International Economic Law 61-73 (2022).

Yeshiva University Suspends All Student Organization Activities Rather Than Recognize LGBTQ Organization

As previously reported, the U.S. Supreme Court last week in Yeshiva University v. YU Pride Alliance ordered Yeshiva University to first seek relief through appeals in state courts before asking the U.S. Supreme Court to stay a state trial court order requiring it to recognize an LGBTQ student group. Now, as reported by CNN, the University on Friday announced that it would put all undergraduate club activities on hold while it "takes steps to follow the roadmap provided by the US Supreme Court..."

UPDATE: Religion News Service reports:

A Jewish LGBTQ organization [JQY] announced Tuesday (Sept. 20) that it will step in to provide funding for all student clubs at Yeshiva University after school officials suspended all undergraduate student groups rather than recognize an LGBTQ campus group, the YU Pride Alliance.

UPDATE 2: In a statement (full text) issued Sept. 21, YU Pride Alliance announced that it would agree to a stay of the order requiring the University to recognize it while the litigation continues because it does not want YU to punish fellow-students. As reported by The Commentator, the University welcomed the response, saying it offers an opportunity for continuing discussions.

White House Hosts Summit Addressing Hate-Motivated Violence

Yesterday President Biden hosted the United We Stand Summit at the White House directed at countering hate-motivated violence. The President spoke at the Summit for nearly 25 minutes (full text of remarks), calling on Congress to pass budget increases to protect nonprofits and houses of worship from hate-fueled violence, and to pass legislation to hold social media platforms accountable for spreading hate-fueled violence. He said in part:

There is a through-line of hate from massacres of Indigenous people, to the original sin of slavery, the terror of the Klan, to ... anti-immigration violence against the Irish, Italians, Chinese, Mexicans, and so many others laced throughout our history.

There is a through-line of violence against religious groups: antisemitic, anti-Catholic, anti-Mormon, anti-Muslim, anti-Hindu, anti-Sikh.

Look, folks, and that through-line of hate never fully goes away.  It only hides.

The White House also issued a Fact Sheet on the Summit, announcing a number of new government and private initiatives to address hate-fueled violence. Several clergy were among the "Uniters" honored at the Summit.

Supreme Court Vacates Stay of Injunction Against Yeshiva University, Sending Case Back To State Courts

The U.S. Supreme court yesterday in Yeshiva University v. YU Pride Alliance, (Sup. Ct., Sept. 14, 2022), vacated the stay issued on Sept. 9 by Justice Sotomayor of a New York state trial court's injunction that required Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. In a 5-4 vote, the Court issued the following opinion directing the University to first seek expedited review and interim relief from New York trial courts.  Here is the full opinion [paragraph breaks added]:

The application (22A184) for stay pending appeal of a permanent injunction entered by the New York trial court, presented to Justice Sotomayor and by her referred to the Court, is denied without prejudice to applicants again seeking relief from this Court if, upon properly seeking expedited review and interim relief from the New York courts, applicants receive neither. The order heretofore entered by Justice Sotomayor is vacated.

Applicants Yeshiva University and its president seek emergency relief from a non-final order of the New York trial court requiring the University to treat an LGBTQ student group similarly to other student groups in its student club recognition process. The application is denied because it appears that applicants have at least two further avenues for expedited or interim state court relief. First, applicants may ask the New York courts to expedite consideration of the merits of their appeal. Applicants do not assert, nor does the Appellate Division docket reveal, that they have ever requested such relief. Second, applicants may file with the Appellate Division a corrected motion for permission to appeal that court’s denial of a stay to the New York Court of Appeals, as the Appellate Division clerk’s office directed applicants to do on August 25. Applicants may also ask the Appellate Division to expedite consideration of that motion.

If applicants seek and receive neither expedited review nor interim relief from the New York courts, they may return to this Court.

Justice Alito, with whom Justice Thomas, Justice Gorsuch, and Justice Barrett join, dissent.

NY Jewish Week reports on the decision. [Thanks to Rabbi Michael Simon for the lead.]

UPDATE: Here is the full text of Justice Alito's dissent. He said in part:

At least four of us are likely to vote to grant certiorari if Yeshiva’s First Amendment arguments are rejected on appeal, and Yeshiva would likely win if its case came before us. A State’s imposition of its own mandatory interpretation of scripture is a shocking development that calls out for review. The Free Exercise Clause protects the ability of religious schools to educate in accordance with their faith.

Study Of State Statutory Religious Liberty Protections Released

First Liberty Institute's Center for Religion, Culture and Democracy yesterday released a 95-page report titled Religious Liberty In the States 2022 (full text). The Report ranks each state by examining its statutory protections and exemptions for religious belief in the following areas: absentee voting for religious reasons; religious exemptions from childhood immunization requirements; conscience protections for health care providers; religious exemptions from health insurance contraceptive mandates; provisions for religious entities, public officials and businesses to refuse to participate in marriages and weddings that violate religious beliefs; and a state Religious Freedom Restoration Act.

6th Circuit Refuses To Stay Class-Wide Injunction Against Air Force Enforcing Vaccine Mandate Against Religious Objectors

In Doster v. Kendall, (6th Cir., Sept. 9, 2022), the U.S. 6th Circuit Court of Appeals refused to grant an emergency stay of a class-wide injunction that was issued by an Ohio federal district court in a suit by Air Force and Space Force members who object on religious grounds to receiving the COVID vaccine. The district court enjoined the military from taking enforcement measures, while litigation is pending, against service members who have submitted confirmed requests for a religious accommodation from the military's vaccine mandate. The 6th Circuit said in part:

[T]he Department challenges only the merits of the district court’s decision to certify the class—the Department’s position being that, even if the named plaintiffs are likely to prevail on their individual claims, the court’s certification of the class was an abuse of discretion, and thus so too was the court’s issuance of a class-wide preliminary injunction....

The Department ... argues that RFRA claims categorically cannot be certified for class treatment. Here, for example, it says that the plaintiffs’ RFRA claim requires the court to determine separately for each service member whether the vaccination mandate is the least restrictive means of furthering a compelling governmental interest. We agree that most RFRA claims require that kind of individualized analysis; and we have no quarrel with the Department’s contention that such an analysis could not be conducted class-wide here. But the Department’s argument misconceives the nature of the RFRA claim that the district court certified. The court’s order emphasized on almost every page that the RFRA claim it certified was one based on a class-wide “clear policy of discrimination against religious accommodation requests.” ... That claim ... does not turn on an analysis of the class members’ individual circumstances and likely can be adjudicated class-wide.

Liberty Counsel issued a press release announcing the decision.

West Virginia Legislature Passes Restrictive Abortion Bill

The West Virginia legislature yesterday gave final passage to House Bill 302 (full text) which outlaws most abortions. It provides in part:

An abortion may not be performed or induced or be attempted to be performed or induced unless in the reasonable medical judgment of a licensed medical professional: (A) there exists a nonmedically viable fetus; (B) there exists an ectopic pregnancy; or (C) there exists a medical emergency.

In addition ..., an abortion may be performed by a licensed medical professional when:(1) the patient is a victim of sexual assault or incest; (2) a report is made to a qualified law enforcement officer; (3) the licensed medical professional determines that probable gestational age of fetus has not exceed 14 weeks; and (4) the licensed medical professional complies with the provisions of §16-2R-5 [minors and reporting provisions].

A prison sentence of 3 to 10 years is prescribed for anyone (other than the mother) who violates the abortion prohibitions. West Virginia Public Broadcasting reports on the bill. [Thanks to Scott Mange for the lead.]

Mask Mandate Did Not Violate Free Exercise Rights

 In Bush v. Fantasia, (D MA, Sept. 12, 2022), a Massachusetts federal district court dismissed claims that a COVID mask mandate imposed by a town Board of Health and a public library violated plaintiffs free exercise rights. Plaintiffs claimed that they "have sincerely held religious beliefs that proscribe our wearing face masks and/or submitting to coerced medical devices/products such as face masks." The court said in part:

Plaintiffs do not identify a religious practice or explain the coercive effect the mask mandates had on that practice. A mere vague allegation that mask mandates violate their religion is not enough to survive even the most a generous pleading standard....

Even assuming arguendo that Plaintiffs have sufficiently alleged a burden on their exercise of religion, their claims would still fall. The mask mandates were facially neutral and generally applicable, i.e., they did not single out, or make any reference to, a religion or any religious practice and applied equally to all....

The court also rejected equal protection, due process and a number of other challenges. 

NY Board Of Regents Adopts "Substantial Equivalency" Guidelines For Private And Religious Schools

As reported by JTA, the New York Board of Regents yesterday approved the Final Substantial Equivalency Regulation (full text) (summary) which implements NY Education Law §3204(2) requiring instruction in nonpublic schools to be at least "substantially equivalent" to that in public schools in the same city or district. Originally proposed in March (see prior posting), the Regulation provides multiple pathways for private and religious schools to demonstrate compliance. The Regulation garnered increased attention after the New York Times on Sunday published a lengthy article setting out the findings of its study of the inadequacies of secular instruction in a number of Hasidic Jewish schools. (It also posted the article in Yiddish on its website.) The Forward also has background on the new rule.

Christian University Trustees Sued Over LGBTQ Hiring Policy

Suit was filed this week in a Washington state trial court against six members of the Board of Trustees of Seattle-Pacific University challenging the University's policy of refusing to hire LGBTQ faculty or staff if they are in a same-sex marriage or a same-sex relationship.  The complaint (full text) in Guillot v. Whitehead, (WA Super. Ct., filed 9/11/2022), brought by a group of students, faculty and staff, alleges breach of fiduciary duty, fraud, negligent misrepresentation and interference with contractual relationships. It contends that "rogue" members of the University Board of Trustees have misled other Board members about the vote necessary to eliminate the hiring policy. The University, which was founded by the Free Methodist Church of North America, defines itself as a Christian university. One-third of its board members and its president must be members of the Free Methodist Church. The complaint alleges in part:

1. This case is about six men who act as if they, and the educational institution they are charged to protect, are above the law.

2. They are powerful men who use their positions, as trustees of Seattle Pacific University (“SPU”), to advance the interests of a religious denomination at the expense of the students, alumni, staff, and faculty of the university....

102. SPU is a university in crisis, stemming from the abusive leadership of entrenched interests who usurped control of the BOT to place it in service of sectarian-motivated LGBTQ+ discrimination....

AP reports on the lawsuit.

Certiorari Petition Filed Again In Bakery's Refusal To Design Wedding Cake For Same-Sex Marriage

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Klein v. Oregon Bureau of Labor and Industries, (Sup. Ct., filed 9/7/2022). This is the second time the case has worked its way up to the Supreme Court. (See prior posting.) At issue is a finding by the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused on religious grounds to design and create a wedding cake for a same-sex wedding. In January, the state court of appeals remanded the case to the Bureau of Labor and Industries for it to determine a remedy after finding that the Bureau's first determination of damages was tainted by non-neutrality. (See prior posting.) In August, the Bureau imposed damages of $30,000. First Liberty has additional background.

Recent Articles of Interest

From SSRN:

• Leah Plunkett & Michael Lewis, The Wages of Crying Life: What States Must Do to Protect Children After the Fall of Roe,  (Pepperdine Law Review, 2022-2023).
• Aaron Tang, After Dobbs: History, Tradition, and the Uncertain Future of a Nationwide Abortion Ban, (Stanford Law Review, Forthcoming).
• Evan R. Seamone, Beyond 'Restoration of Honor': Compensating Veterans for the Psychological Injuries of the Gay and Transgender Bans, (28 William & Mary Journal of Race, Gender, & Social Justice 687 (2022)).
• Cameron Moody, Iranian Music Censorship & International Human Rights Law, (Brooklyn Journal of International Law, Vol. 47, No. 1, 2022).
• John Kenedi, Problematic of Correctional Service (Lapas) in the Perspective of Indonesian Penal Law and Islamic Criminal Law, (2022).

From SmartCILP:

Jordan Blair Woods, Book Review. Bigotry, Civil Rights, and LGBTQ Child Welfare. Who's the Bigot? Learning from Conflicts over Marriage and Civil Rights Law, by Linda C. McClain, 120 Michigan Law Review 1011-1032 (2022).

UK Government Issues Suggestions For Places of Worship To Take Part In Mourning For Queen

In Britain last Friday, the government's Department for Levelling Up, Housing and Communities issued National Mourning Period: Guidance for Faith and Belief Groups and Places of Worship. It contains liturgical and operational suggestions for religious venues that wish to take part in the Period of Mourning for Queen Elizabeth II. Law & Religion UK has links to additional resources.

Justice Sotomayor Stays NY Order Requiring Yeshiva University To Recognize LGBTQ Group

In Yeshiva University v. YU Pride Alliance, (Sup. Ct., Sept. 9, 2022),  U.S. Supreme Court Justice Sonia Sotomayor today issued an order staying a New York trial court's injunction that required Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. The New York trial court held that applying the public accommodation provisions of the New York City Human Rights Law to Yeshiva does not violate its First Amendment free exercise or free speech rights. (See prior posting.) Justice Sotomayor granted the University's Emergency Application for a Stay Pending Appellate Review without referring the petition to the full Court. However she wrote that her stay was granted "pending further order of the undersigned or of the Court." CNN reports on developments.

11th Circuit: No Liability For Withdrawing Permission For Religious Group To Use After School Classrooms

In Chabad Chayil, Inc. v. School Board of Miami-Dade County, Florida, (11th Cir., Sept. 8, 2022), the U.S. 11th Circuit Court of Appeals affirmed the district Court' dismissal of free exercise, equal protection and due process claims brought by a Jewish organization that ran a popular after-school Hebrew program for more than ten years using public school classrooms. In 2019, after a complaint and investigation of whether Chabad complied with the rules for use of school facilities without paying a fee, the Miami-Dade County superintendent withdrew permission for Chabad use of school classrooms. Chabad sued. The court held that plaintiff had not shown the elements necessary to assert liability against either the school board or the Inspector General's office that investigated complaints against Chabad.

Indiana Abortion Restrictions Challenged Under State RFRA

A class action lawsuit was filed yesterday in an Indiana state trial court court on behalf of all persons in the state whose religious beliefs direct them to obtain abortions in situations prohibited by the state's recently enacted restrictive abortion ban. The suit was filed by five anonymous plaintiffs and an organization, Hoosier Jews For Choice.  The complaint (full text) in Anonymous Plaintiffs 1-5 v. Individual Members of the Medical Licensing Board of Indiana, (IN Super. Ct., filed 9/8/2022), contends that the law violates Indiana's Religious Freedom Restoration Act. ACLU issued a press release announcing the filing of the lawsuit.

Michigan Court Permanently Enjoins Enforcement Of Pre-Roe Abortion Law

In Planned Parenthood of Michigan v. Attorney General of the State of Michigan, (MI Ct. Cl., Sept. 7, 2022), the Michigan Court of Claims issued a permanent injunction barring enforcement of Michigan's pre-Roe abortion ban.  The order follows on the Court's previous preliminary injunction against enforcement. It held that enforcement of the ban would violate both the due process and equal protection clauses of the Michigan constitution. The Court rejected the argument that it should interpret the due process clause in the state Constitution to track that of the due process clause in the U.S. Constitution. The court said in part:

... Dobbs relied on a version of history that began in the 13th Century and ended in 1868, when the federal Due Process Clause was ratified. Almost a century, two world wars, a constitutional amendment granting women the right to vote, the emergence of the civil rights movement, and a sea change in the laws regarding women's status in society separate the adoption of the fourteenth amendment from the ratification of our 1963 Constitution.... A court charged with an examination of the ideas giving rise to a 1963 Constitution is not assisted by an historical analysis of a clause drafted in a far different social and legal environment. What was "deeply rooted" in history and tradition in 1868, a focal point in Dobbs, bears little resemblance to the understanding of personal freedom, particularly for woman and people of color, motivating those who drafted and ratified our 1963 Constitution. The Court therefore rejects the intervenors' claim that this Court must reflexively adhere to Dobb's conclusions about the reach of the federal Due Process Clause....

By depriving women who choose abortion the ability to exercise a fundamental right while protecting the same right for pregnant women who choose to continue their pregnancies, MCL 750.14 violates Michigan's Equal Protection clause....

By criminalizing abortion, MCL 750.14 prevents a woman who seeks to exercise a constitutional right from controlling her ability to work or to go to school, and thereby determining for herself the shape of her present and future life.

Responding to a state Court of Appeals opinion that the court of Claims previous preliminary injunction only binds the Attorney General and not independent county prosecutors, the Court ordered the Attorney General to serve a copy of the opinion and accompanying order on every county prosecuting attorney.

Michigan Governor Gretchen Whitmer issued a statement (full text) in support of the Court's decision. Bridge Michigan reports on the decision.

Michigan Supreme Court Says Abortion Rights Proposal Must Go On November Ballot

In Reproductive Freedom For All v. Board of State Canvassers, (MI Sup. Ct., Sept. 8, 2022), the Michigan Supreme Court in a per curiam Order of Mandamus directed the Board of State Canvassers to certify the proposed Reproductive Freedom For All state constitutional amendment for placement on the November 8 election ballot. The Board of State Canvassers had deadlocked 2-2 along party lines with those voting against approval citing a typographical problem that led to several words being run together at places in the text of the proposed amendment as set out in the petitions that were circulated. (See prior posting.) In its Order, adopted by a 5-2 vote, the Court said in part:

It is undisputed that there are sufficient signatures to warrant certification. The only challenge to the petition is in regard to whether there is sufficient space between certain words of the text of the proposed amendment. MCL 168.482(3) requires only that “[t]he full text of the amendment so proposed must follow the summary and be printed in 8-point type.” The “full text” of the amendment is present: regardless of the existence or extent of the spacing, all of the words remain and they remain in the same order, and it is not disputed that they are printed in 8-point type. In this case, the meaning of the words has not changed by the alleged insufficient spacing between them.

Chief Justice McCormack filed a concurring opinion, saying in part:

[Two members of the Board of State Canvassers] would disenfranchise millions of Michiganders not because they believe the many thousands of Michiganders who signed the proposal were confused by it, but because they think they have identified a technicality that allows them to do so, a game of gotcha gone very bad. 

Justice Bernstein also filed a concurring opinion.  Justice Zahra filed a dissenting opinion, saying in part:

[T]he Court, under the pressure to decide the question forthwith in order to ensure timely production of the ballots, has decided to grant mandamus without oral argument. While I would prefer to engage in oral argument before deciding this issue, pressed for a ruling, I must conclude that plaintiffs have not met their burden of establishing a clear legal right to a writ of mandamus.

Justice Viviano filed a 14-page dissenting opinion, saying in part:

For well over a thousand years, we have conveyed thought and meaning by using spaces between words.... It was not always so. Ancient text employed scriptura continua, in which words were uninterrupted by word spaces.... But the objectives of reading in ancient times were different, with the focus being on memorization useful to an oral rather than a text-based culture....

If the full-text requirement is subject to an analysis that asks whether the meaning has sufficiently changed or become ambiguous enough to potentially mislead,... then presumably the determination of whether the full text is present involves at least some discretion. That is, a factual determination concerning the extent of the error and its probable effects must be made by the board. But if so, then it is hard to see how this decision can be characterized as ministerial and thus subject to mandamus.

NPR reports on the decision. 

ACA Mandate To Cover PrEP Drugs Violates RFRA

In Braidwood Management Inc. v. Becerra, (ND TX, Sept. 7, 2022), a Texas federal district court held that the ACA mandate for health insurance coverage of PrEP drugs violates the rights under the Religious Freedom Restoration Act of a for-profit corporation whose owner believes that providing such coverage for his employees would make him complicit in their homosexual conduct and sexual activity outside of marriage. The court said in part:

Defendants dispute Hotze’s beliefs. They argue that Hotze’s claim that PrEP drugs facilitate various kinds of behavior is an empirical one that requires factual support.... But Defendants inappropriately contest the correctness of Hotze’s beliefs, when courts may test only the sincerity of those beliefs...

Defendants claim a compelling interest in reducing the spread of HIV, a potentially fatal infectious disease.... 

But Defendants frame the interest too broadly. “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is being substantially burdened.” ...

... Defendants provide no evidence of the scope of religious exemptions, the effect such exemptions would have on the insurance market or PrEP coverage, the prevalence of HIV in those communities, or any other evidence relevant “to the marginal interest” in enforcing the PrEP mandate in these cases...

Even if Defendants had satisfied the compelling-interest prong, they have not shown that the PrEP mandate is the least restrictive means of furthering that interest...

Much of the court's 42-page opinion relates to other issues. Bloomberg reports on the decision. [Thanks to James Phillips for the lead.]

New York Violates Speech Rights of Adoption Agency By Requiring Placement With Unmarried and Same-Sex Families.

In New Hope Family Services, Inc. v. Poole, (ND NY, Sept. 6, 2022), a New York federal district court issued a permanent injunction prohibiting the state of New York from requiring New Hope, a religiously affiliated social service agency, to provide adoption services to unmarried or same-sex couples. The state Office of Children and Family Services contended that New Hope's policy of referring such clients to other agencies violated its anti-discrimination rules. Citing a previous holding by the Second Circuit, the court concluded that "by compelling it to place children with unmarried and same-sex couples, OCFS is necessarily compelling New Hope to engage in the speech required for that conduct...." While agreeing that the state has a compelling interest in avoiding discrimination and increasing the pool of potential adopting families, the court held that OCFS's rule is not narrowly tailored to advance those interests:

New Hope's "recusal-and-referral" practice was a more narrowly tailored means of avoiding discrimination than the closure of New Hope's adoption operation.

Ecclesiastical Abstention Doctrine Does Not Bar Suit Over Compliance With Non-Profit Corporation Law

 In Auguste v. Hyacinthe, (FL App., Sept. 7, 2022), a Florida state appellate court held that the ecclesiastical abstention doctrine does not bar the court's deciding whether defendants violated provisions of the Florida Not For Profit Corporation Act.  After the founding pastor of a Baptist church died, the congregation split into two factions.  Plaintiffs allege that after defendant was removed as a director, he continued to purport to act on behalf of the church by filing annual reports with the state, falsely listing members of his faction as officers and falsely removing others. Plaintiffs allege that he also, without proper notice, held a secret meeting with some church members and executed a false resolution claiming that other of the directors were expelled. The court said in part:

Count I alleged that Hyacinthe violated section 617.0808, Florida Statutes (2018), regarding removal of directors. Count II alleged that Tibois violated the same statute. Count III alleged that Appellees violated chapter 617 in holding secret meetings....

Appellants’ counts I-III did not raise claims that would necessarily require the trial court to decide which faction of the Church has control or seek resolution of questions regarding the Church’s governance. Instead, we conclude counts I-III raise issues of the propriety of actions of the board of trustees, board of directors, or corporate officials of a corporation under chapter 617, Florida Statutes....

Conversely, we determine that the trial court did not err in dismissing Appellants’ count IV – raising a cause of action for conversion against Appellees.... Appellants’ count IV would necessarily require the trial court to determine which faction controlled the Church....

Michigan Supreme Court To Decide Whether Abortion Rights Proposal Will Be On November Ballot

 As previously reported, backers of a proposed abortion rights amendment to the Michigan Constitution are appealing to the Michigan Supreme Court the refusal of the Board of State Canvassers to certify the proposal for the ballot.  Republicans on the Board created a deadlocked vote, contending that kerning of the text that ran some words together invalidated the petitions that were submitted. The complaint (full text) in Reproductive Freedom for All v. Board of State Canvassers, (MI Sup. Ct., filed 9/1/2022) is now available online, as are some of the amicus briefs filed in the case. Here are links to briefs from Michigan Attorney General Dana Nessel, from seven county Prosecuting Attorneys, and from a coalition of advocacy and religious groups. Bridge Michigan reports on these developments.

9th Circuit Upholds Washington's Ban On Conversion Therapy

In Tingley v. Ferguson, (9th Cir., Sept. 6, 2022), the U.S. 9th Circuit Court of Appeals rejected free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors.  The court said in part:

Washington’s licensing scheme for health care providers, which disciplines them for practicing conversion therapy on minors, does not violate the First or Fourteenth Amendments. States do not lose the power to regulate the safety of medical treatments performed under the authority of a state license merely because those treatments are implemented through speech rather than through scalpel....

SB 5722 is a neutral law targeted at preventing the harms associated with conversion therapy, and not at the religious exercise of those who wish to practice this type of therapy on minors.

 Judge Bennett concurred in part.  Courthouse News Service reported on the decision.

Eminent Domain Violated Rights of Chabad

In Chabad Lubavitch of the Beaches, Inc. v. Incorporated Village of  Atlantic Beach, (ED NY, Sept. 6, 2022), a New York federal district court granted a preliminary injunction, concluding that an attempt to acquire the property of a Jewish religious group by eminent domain likely violated the group's 1st Amendment free exercise rights. Chabad acquired the property in order to build a center on it. Eminent domain proceedings were initiated shortly after Chabad held a Menorah lighting ceremony on the property. The court explained:

[T]he Village’s acquisition decision was made in a manner intolerant of Chabad’s members’ religious beliefs and which would restrict Chabad’s practices because of its religious nature. Thus, the Village’s acquisition decision was targeted and not done neutrally, thereby requiring the Court to apply strict scrutiny in deciding whether that decision is constitutionally permissible. 

... The Village never inquired from the Property’s prior owner whether he was interested in selling the Property ... notwithstanding it being adjacent to and/or in very close proximity to Village-owned and controlled properties and it having sat vacant for three years, with a prominent “For Sale” sign having been erected in front of the Property for the last two of those three years.... Instead, for vague reasons, not strongly supported by direct evidence ... the Village’s apparent urgency to acquire the Properties intensified during the same time when Chabad purchased the Property....

Further, the several anti-Semitic comments posted to the FB Group page after the January 10 open meeting, i.e., community member comments, add to the suspicion caused by the timing of events and call into question the Village’s stated motivation for acquiring the Property by eminent domain....  [O]ne of the Village Trustees, was an administrator/monitor of the FB Group; thus, it is difficult not to conclude that at least one member of the Village Board was aware of several strong opponents to Chabad’s presence in the Village, based upon impermissible religious animus.

California Assisted Suicide Law Violates Free Speech rights Of Objecting Doctors

In Christian Medical & Dental Association v. Bonta, (CD CA, Sept. 2, 2022), a California federal district court held likely unconstitutional a provision in the California End of Life Option Act which requires doctors who refuse on conscience, moral or ethical grounds to participate in procedures set out by the act to nevertheless document in a patient's record the date of the patient's request for an aid-in-dying drug. This notation serves as one of two required requests by a patient before the patient may obtain the drug. The court rejected the argument that this violates the free exercise rights of medical providers who object on religious grounds, saying in part:

The court recognizes that Plaintiffs have sincerely held religious beliefs, and that compliance with the documentation requirements contained in Section 443.14(e)(2) infringes on the free exercise of their religion. However, under clearly established doctrine in Smith, Lukumi, and Fulton, strict scrutiny does not apply to a neutral and generally applicable law, like the Act here.

The court also rejected equal protection and due process challenges. However, the court did conclude that plaintiffs are likely to succeed on their free speech challenges to the requirement, saying in part:

[T]he documentation requirement imposed by the Act “plainly alters the content” of non-participating health care providers’ speech.... The ultimate outcome of this requirement is that non-participating providers are compelled to participate in the Act through this documentation requirement, despite their objections to assisted suicide.

The court issued a preliminary injunction barring state enforcement of the requirement against objecting health care providers. ADF issued a press release announcing the decision.

Qualified Immunity Denied In Muslim Woman's Challenge To Jail's Booking Photo Policy

In Chaaban v. City of Detroit, Michigan Department of Corrections, (ED MI, Sept. 2, 2022), a Michigan federal district court denied a motion in a RLUIPA case for reconsideration of the denial of qualified immunity to corrections officials who forced a Muslim woman to remove her hijab for a booking photograph. The court concluded that it was premature to grant immunity on a motion to dismiss, saying in part:

[D]iscovery is needed to determine “whether the state of the law . . . gave [the defendants] fair warning that [the plaintiff’s] alleged treatment was unconstitutional.”... Plaintiff plausibly alleged in her complaint that prison officers threatened to make Plaintiff “sleep on the concrete floor of the booking cell without a bed, blanket, mattress or pillow” if she did not remove her hijab.... Taking this and other allegations in Plaintiff’s complaint as true ... the Court properly determined that qualified immunity is not appropriate at this time.