5th Circuit Allows Part of Stay on Abortion Pills To Remain; U.S. Will Appeal to Supreme Court

 In Alliance for Hippocratic Medicine v. Food & Drug Administration,(5th Cir., April 12, 2023), the U.S. 5th Circuit Court of Appeals granted a partial stay of a Texas federal district court's decision invalidating the FDA's approval of the abortion drug mifepristone. The appeals court held that the statute of limitations barred a challenge to the FDA's initial approval of the drug in 2000. However, the court refused to stay the district court's disapproval of changes the FDA made in 2016.  Those changes significantly reduced prior restrictions on the administration and use of the drug. The court said in part:

Here, applicants have failed to carry their burden at this preliminary stage to show that FDA’s actions were not arbitrary and capricious. We have two principal concerns in that regard. First, FDA failed to “examine the relevant data” when it made the 2016 ... changes.... That’s because FDA eliminated ... safeguards based on studies that included those very safeguards....

Second, the 2016 ... Changes eliminated the requirement that non-fatal adverse events must be reported to FDA. After eliminating that adverse-event reporting requirement, FDA turned around in 2021 and declared the absence of non-fatal adverse-event reports means mifepristone is “safe.”... This ostrich’s-head-in-the-sand approach is deeply troubling.... It’s unreasonable for an agency to eliminate a reporting requirement for a thing and then use the resulting absence of data to support its decision.

Reuters reports on the decision. 

Earlier today, the Justice Department announced that it would seek emergency relief from the U.S. Supreme Court.

FDA Seeks Stay Pending Appeal of Order Ending Approval of Mifepristone

The Justice Department on behalf of the U.S. Food and Drug Administration yesterday filed an Emergency Motion for a Stay Pending Appeal (full text of motion) in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, (5th Cir., filed 4/10/2023). The motion seeks a stay while an appeal is heard by the 5th Circuit of a Texas federal district court decision setting aside the 2000 FDA order approving doctors prescribing mifepristone for medical abortions. The FDA argues in part:

The [district] court repeatedly characterizes mifepristone as unsafe. But over the last two decades, the available evidence conclusively demonstrates that mifepristone is safe under the approved conditions of use. More than five million women have used mifepristone to terminate their pregnancies in the United States.... Mifepristone is also approved in dozens of other countries..... The literature reflects “exceedingly rare” rates of serious adverse events.

AP reports on the appeal.

185 Methodist Churches in Georgia Sue Parent Body Seeking Disaffiliation

 At the end of last month, 185 Methodist congregations in Georgia filed suit in a Georgia state trial court against their parent body and its officials.  The congregations are attempting to disaffiliate from the North Georgia Conference of the United Methodist Church pursuant to a provision (❡2553) added to the Church's Book of Discipline in 2019.  The provision, which applies to disaffiliations completed by the end of 2023, allows disaffiliating congregations to keep their real and personal property.  The complaint (full text) in Carrollton First United Methodist Church, Inc. v. Trustees of the North Georgia Conference of the United Methodist Church, Inc., (GA Superior Ct., filed 3/30/2023), alleges in part that: 

Defendants have conspired to "run out the clock" on Plaintiffs ability to utilize ❡2553 by a combination of ultra vires actions, fraudulent misrepresentations, and promises which they have failed to keep so that, unless this court intervenes, Plaintiffs cannot and indeed will not be allowed to fulfill the legislated requirements of ❡2553 in time to meet the sunset date of 12/31/23.

The complaint also alleges that the parent body is no longer allowing disaffiliating churches a credit for their share of a $23 million pension plan reserve fund.

In introductory paragraphs, the complaint contends:

This case can be resolved in accordance with secular Georgia law ... without interfering with the separation of church and state.... Defendants cannot be heard to contest this point, as Defendants have availed themselves of the same principles recently in a substantially similar context in this very court....

UM News, reporting on the lawsuit, says in part:

The lawsuit ... involves more than a quarter of the North Georgia Conference’s nearly 700 congregations. 

It’s also the most congregations that have banded together in a single lawsuit since the denomination began undergoing a slow-motion separation after decades of intensifying debate over LGBTQ inclusion.

House Committee Seeks Documents on FBI Interest in Radical Traditionalist Catholic Extremists

Yesterday, U.S. House Judiciary Committee chairman Jim Jordan issued a subpoena to FBI Director Christopher Wray seeking documents related to the FBI's attempt to monitor possible violent extremism among radical-traditionalist Catholics.  In an April 10 Committee Press Release (full text), the Committee said in part:

From this limited production, it is apparent that the FBI, relying on information derived from at least one undercover employee, sought to use local religious organizations as “new avenues for tripwire and source development.”... 

The FBI similarly noted two other opportunities to engage in outreach with religious institutions in the Richmond area, citing a desire “to sensitize the congregation to the warning signs of radicalization and enlist their assistance to serve as suspicious activity tripwires.” This outreach plan even included contacting so-called “mainline Catholic parishes” and the local “diocesan leadership.” 

The subpoena cover letter (full text) says in part:

The Committee on the Judiciary is conducting oversight of the Federal Bureau of Investigation’s (FBI) handling of domestic violent extremism investigations against Catholic Americans and its effect on protected First Amendment activity....

We have repeatedly sought information from the FBI relating to a January 23, 2023 document generated by the Richmond Field Office entitled “Interest of Racially or Ethnically Motivated Violent Extremists in Radical-Traditionalist Catholic Ideology Almost Certainly Presents New Mitigation Opportunities”.... In this document, the FBI purported to categorize Catholic Americans based on theological distinctions and relied on the Southern Poverty Law Center to suggest that certain kinds of Catholic Americans may be domestic terrorists.

A report by Bloomberg on the subpoena adds:

There was no immediate response from Wray, but he told senators last month that the document “does not reflect FBI standards” and the bureau “took steps immediately to withdraw it and remove it from FBI systems.”

“We do not conduct investigations based on religious affiliation or practices, full stop,” Wray told the Senate Intelligence Committee.

7th Circuit: Accommodating Teacher's Religious Beliefs as To Transgender Students Imposed Undue Hardship

 In Kluge v. Brownsburg Community School Corp., (7th Cir., April 7, 2023), the U.S. 7th Circuit Court of Appeals in a 2-1 decision upheld a school's dismissal of a teacher who refused on religious grounds to comply with the school policy of calling transgender students by their names registered in the school's official database. In a 79-page majority opinion rejecting the teacher's Title VII claims, the court said in part:

After Brownsburg initially accommodated Kluge’s request to call all students by their last names only, the school withdrew the accommodation when it became apparent that the practice was harming students and negatively impacting the learning environment for transgender students, other students both in Kluge’s classes and in the school generally, as well as the faculty. The district court granted summary judgment in favor of the school after concluding that the undisputed evidence showed that the school was unable to accommodate Kluge’s religious beliefs and practices without imposing an undue hardship on the school’s conduct of its business of educating all students that entered its doors. The district court also granted summary judgment in favor of Brownsburg on Kluge’s retaliation claim. We agree that the undisputed evidence demonstrates that Kluge’s accommodation harmed students and disrupted the learning environment. Because no reasonable jury could conclude that harm to students and disruption to the learning environment are de minimis harms to a school’s conduct of its business, we affirm.

Judge Brennan dissented as to the reasonable accommodation claim. In a 54-page dissent, he said in part:

Kluge’s religious accommodation claim comes down to a fact-intensive inquiry: Did the School District demonstrate that Kluge’s gender-neutral accommodation of calling all students by only their last names causes undue hardship—that is, more than a de minimis cost? The majority opinion says “yes,” but it sidesteps Kluge’s countervailing evidence, fails to construe the record in his favor, and overlooks credibility issues on both sides, which are reserved for resolution by the factfinder. 

... [W]ithout supporting authority, my colleagues hold that the undue hardship inquiry looks only to evidence within the employer’s knowledge at the time of the adverse employment decision.... Considering the entire record, there is a genuine issue of material fact on undue hardship, which we should remand for trial.

Reuters reports on the decision.

Recent Articles of Interest

From SSRN:

• Sanchaali Chakravorty, Can the Vatican Really Be Called a "State"?, (March 21, 2023).
• Mordechai (Mordy) Sahler, Is This a Real Problem? – HOA Rules that Interfere with the Practice of Religion, (CSLR Research Paper No. 1.2023-ESS (2023).
• Robert Kahn, The Hijab Row in Karnataka, Egalitarian Uniformity and the Right to Adorn One’s Face, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 23-01 (2023).
• Suryapratim Roy & Rahul Sambaraju, Hindu Zion: The Politics of Constitutional Accommodation, (Mark Tushnet and Dimitry Kochenov (eds), Research Handbook on the Politics of Constitutional Law (Edward Elgar 2023)).
• Reva B. Siegel, How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization, (Houston Law Review, Vol. 60, 2023).

From SmartCILP:

• Javid Rehman, Revisiting the Jihad Ideology in Islamic International Law and Its Appropriation by Nonstate Actors [Abstract], 44 Human Rights Quarterly 417-440 (2022).
• Niaz A. Shah, The Application of Human Rights Treaties in Dualist Muslim States: The Practice of Pakistan, 44 Human Rights Quarterly 257-285 (2022).
•  Rabea, Benhalim, Oppression in American, Islamic, and Jewish Private Law. 94 University of Colorado Law Review 149-216 (2023).

Deed Restriction Does Not Violate Establishment Clause

In Hilo Bay Marina, LLC v. State of Hawaii, (HI Cir. Ct., March 21, 2023), a Hawaii trial court dismissed a suit seeking to void a deed restriction.  In 1922, the land at issue was conveyed by the Territory of Hawaii to the Church of Jesus Christ of Latter Day Saints, with a deed restriction that the land could only be used for church purposes. Under the restriction, the land would revert to Hawaii if it was used for non-church purposes.  In 2000, the land was conveyed to the Hilo Bay Marina, presumably triggering the reversion. Fifteen years later it was conveyed by the Marina to Keaukaha Ministry.  Now the Marina and the Ministry sue to void the deed restriction, among other things contending that it violates the Establishment Clause of the U.S. and the Hawaii Constitutions.  The court rejected the claim citing the U.S. Supreme Court's decision in Kennedy v. Bremerton Schol District, and saying in part:

The Establishment Clause "must be interpreted 'by reference to historical practices and understandings.'"...

The practice of selling government lands with deed restrictions was an early form of use-zoning and is interpreted as a historical practice of zoning....

Even if Article I, §4 of the Hawai'i Constitution is not coextensive with the Establishment Clause of the First Amendment..., the deed restriction passes constitutional muster under Lemon v. Kurtzman....

The deed restriction allows for any religious organization to benefit from the property, so it does not endorse or approve one religion over another....

The surveillance and monitoring required to enforce the deed restriction do not present excessive entanglement because they are no different than that of what is required to enforce any other zoning regulation.

White House Issues Easter Greetings

Today is Easter. In honor of the holiday, President Biden issued a Statement (full text) which says in part:

Jill and I join Christians around the world in celebrating Easter Sunday, a day of hope and joy, renewal and rebirth....

Today, we hold close the Easter message that nothing – not even death – can match the power of faith, hope, and love. And we remember Jesus’ sacrifice and recommit ourselves to love God with all our hearts and to love our neighbors as ourselves, embracing His call to treat one another with compassion.

Last week, the White House also issued a Release (full text) giving extensive details for this year's annual Easter Egg Roll. It says that "In total, approximately 30,000 people will take part in this year’s Easter “EGGucation” Roll...."

Ministerial Exception Doctrine Requires Dismissal of Hostile Work Environment Claims

In Montgomery v. St. John's United Church of Christ, (OH App., April 6, 2023), an Ohio state appellate court held that the ministerial exception doctrine requires dismissal of plaintiffs' hostile work environment claims. In the case, the church's minister and a pastoral assistant contended that they were sexually harassed by a lay leader of the church, and that their employment was terminated because of their resistance to this conduct. The court said in part:

The [trial] court found that due to the nature of relationships of the parties involved and the subject matter of the conversations and communications between them, it could not “adjudicate the sexual harassment claims of Appellants without distinguishing between Appellee Martin as a parishioner in the congregation seeking counsel, guidance, and comfort from his pastor and pastoral assistant, and Martin as a church officer engaging in harassing or hostile behavior.”... The court found that it could not make this distinction or determination without “delving deeply into the relationships and expectations of the parties and their church and their faith.” ... 

We agree that this is precisely the kind of state inquiry into church employment decisions that the First Amendment forbids....

Contradictory Orders From 2 District Court on FDA's Approval of Abortion Pill

In Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration, (ND TX, April 7, 2023), a Texas federal district court held that plaintiffs have a substantial likelihood of success on their claim that the FDA's 2021 action allowing the abortion drug mifepristone to be distributed by mail violates the Comstock Act and thus was also in violation of the Administrative Procedure Act. The court also concluded that the FDA's approval in 2000 of doctors prescribing mifepristone violated the agency's rules for approval of new drugs. The FDA rules (Subpart H) relied upon to approve the drug apply to "new drug products that have been studied for their safety and effectiveness in treating serious or life-threatening illnesses and that provide meaningful therapeutic benefit to patients over existing treatments...."  The court said in part:

[T]o satisfy Subpart H, FDA deemed pregnancy a “serious or life-threatening illness[]” and concluded that mifepristone “provide[d] [a] meaningful therapeutic benefit to patients over existing treatments.” See 21 C.F.R. §§ 314.500; 314.560. FDA was wrong on both counts....

Pregnancy is a normal physiological state most women experience one or more times during their childbearing years — a natural process essential to perpetuating human life. Defendants even admit pregnancy is not an “illness.”...

FDA also exceeded its authority under the second requirement of Subpart H. In addition to treating a serious or life-threatening illness, chemical abortion drugs must also provide a “meaningful therapeutic benefit” to patients over surgical abortion... [T]his cannot be the case because chemical abortion drugs do not treat “serious or life-threatening illnesses” — a prerequisite to reaching the second requirement.... Similarly, chemical abortion drugs cannot be “therapeutic” because the word relates to the treatment or curing of disease.

The court stayed the FDA's approval of mifepristone, but stayed the effectiveness of its order for 7 days so the government can appeal to the U.S. 5th Circuit Court of Appeals for emergency relief.  President Joe Biden issued a statement (full text) criticizing the court's decision and reporting that the Justice Department has already filed an appeal.  Vice President Kamala Harris also issued a statement (full text) criticizing the decision.

Meanwhile, in State of Washington v. U.S. Food & Drug Administration, (ED WA, April 7, 2023), a Washington federal district court issued a preliminary injunction barring the FDA from "altering the status quo and rights as it relates to the availability of Mifepristone" in the 17 states and District of Columbia that are plaintiffs in the case. Plaintiffs are challenging certain requirements for prescribing mifepristone added in 2023.

Seattle Times reports on the decisions.

Maryland Attorney General Releases Report on Child Sexual Abuse in Baltimore Archdiocese

Maryland's Attorney General today released a Report on Child Sexual Abuse in the Archdiocese of Baltimore (full text). The 463-page report details abuse by each of 156 individuals , with the names of ten of the individuals redacted. The Report says in part:

As the case descriptions in this Report make clear, from the 1940s through 2002, over a hundred priests and other Archdiocese personnel engaged in horrific and repeated abuse of the most vulnerable children in their communities while Archdiocese leadership looked the other way. Time and again, members of the Church’s hierarchy resolutely refused to acknowledge allegations of child sexual abuse for as long as possible. When denial became impossible, Church leadership would remove abusers from the parish or school, sometimes with promises that they would have no further contact with children. Church documents reveal with disturbing clarity that the Archdiocese was more concerned with avoiding scandal and negative publicity than it was with protecting children.

WBAL's news story has additional details.

Biden Marks Passover by Announcing Upcoming Release of National Strategy to Combat Antisemitism

Passover begins this evening. To mark the holiday, President Biden published an Op Ed (full text) on CNN (also posted on the White House website) titled "To fight antisemitism, we must remember, speak out and act". In it he announced that the federal government will be releasing the first-ever national strategy to counter antisemitism.  In the op-ed, after recounting a number of instances of antisemitism, the President went on to say in part:

These acts are unconscionable and despicable. They carry in them terrifying echoes of the worst chapters in human history. And they’re not only a strike against Jews, they’re also a threat to other minority communities and a stain on the soul of our nation.

To the Jewish community, I want you to know that I see your fear, your hurt and your concern that this venom is being normalized.... 

Rest assured that I am committed to the safety of the Jewish people. I stand with you. America stands with you. Under my presidency, we continue to condemn antisemitism at every turn. Failure to call out hate is complicity. Silence is complicity. And we will not be silent....

But government alone cannot root out antisemitism and hate. All Americans, including businesses and community leaders, educators, students, athletes, entertainers and influencers must help confront bigotry in all its forms. We must each do our part to create a culture of respect in our workplaces, in our schools, on our social media and in our homes.

IRS Correctly Denied Non-Profit Ruling to Church That Promoted Use of Ayahuasca

In Iowaska Church of Healing v. United States, (D DC, March 31, 2023), the D.C. federal district court upheld the IRS's refusal to grant §501(c)(3) non-profit status to a church that promotes the religious use of Ayahuasca, a tea brewed from plants containing a drug that is illegal under the federal Controlled Substances Act. The church, which has 20 members located around the world, applied to the Drug enforcement Administration for a religious exemption from CSA provisions. After four years, that application is still pending.  The court said in part:

The IRS correctly concluded that, until plaintiff obtains a CSA exemption, its promotion and use of Ayahuasca remains illegal under federal law, and plaintiff is neither organized nor operated exclusively for public purposes. As a result, plaintiff is not entitled to an exemption from income tax under section 501(c)(3).

Plaintiff had argued that the Supreme Court's decision in the O'Centro case entitled it to a tax exemption.  The court responded:

[T]he holding in O Centro stands only for the principle that obtaining a CSA exception for religious use of Ayahuasca is possible, if such use is in fact a sincere religious exercise. The flaw in plaintiff’s reliance on O Centro here, is that plaintiff has still not obtained that CSA exception—and whether plaintiff’s showing made to the DEA is sufficient to qualify for this exemption remains an open question that is not before this Court. O Centro simply does not stand for plaintiff’s asserted holding, that all Ayahuasca use is necessarily religious, and that case certainly does not establish that all organizations making use of Ayahuasca are entitled to an exemption from income tax, which is the issue pending here.

The court also held that the church lacks standing to challenge the denial of non-profit status as a violation of RFRA because "plaintiff’s inability to use Ayahuasca does not stem from the IRS Determination Letter, but rather from the CSA’s ban on using DMT, and plaintiff’s lack of a CSA exemption thus far."

Suit Challenges Oregon Requirement That Adoptive Parents Support Child's Sexual Orientation and Gender Identity

Suit was filed this week in an Oregon federal district court challenging a rule of the state's Department of Human Services that persons seeking to adopt children must agree to accept and support the sexual orientation and gender identity of any child placed with them. The complaint (full text) in Bates v. Pakseresht, (D OR, filed 4/3/2023), contends that the rule violates the free expression, free exercise and equal protection rights of plaintiff whose Christian religious beliefs do not permit her to comply with this requirement.  The complaint reads in part:

Under this rule, caregivers must agree to use a child’s preferred pronouns, take a child to affirming events like Pride parades, or sign the child up for dangerous pharmaceutical interventions like puberty blockers and hormone shots—no matter a child’s age, no matter whether a child actually desires these things, and no matter how deeply these requirements violate the caregiver’s religious convictions.

This puts Jessica in a bind. Like countless people of faith, Jessica believes that our biological sex carries spiritual significance for who we are and how we should act. Jessica cannot affirm that a male is or should try to be female or vice  versa....

... Because she will not agree to use a hypothetical child’s preferred pronouns or facilitate a hypothetical gender transition, she cannot even adopt a newborn who has no concept of, much less a desire for, these things.

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

9th Circuit: Jehovah's Witness' Suit Over State-Employee Loyalty Oath Is Remanded

In Bolden-Hardge v. Office of the California State Controller, (9th Cir., April 3, 2023), the U.S. 9th Circuit Court of Appeals reversed and remanded a district court's dismissal of a suit by a Jehovah's Witness who challenged California's refusal to allow her to add a paragraph to the state-employee loyalty oath specifying that by signing it she is not giving up the right to exercise her religion which requires her primary loyalty be to God. Reversing dismissal of plaintiff's Title VII claims, the court said in part:

California’s apparent rationale for the oath requirement is to ensure that if an oath taker’s religion ever comes into conflict with the federal or state constitutions, religion must yield....

[T]o exempt the Controller’s Office from a federal accommodation requirement solely because the requested accommodation would violate state law would essentially permit states to legislate away any federal accommodation obligation....

Bolden-Hardge alleges a disparate impact... She contends that her religious beliefs are “consistent with [those] of other Jehovah’s Witnesses,” who also believe that their faith forbids them from swearing primary allegiance to any human government.... [T]his belief is in tension with the loyalty oath requirement....

The loyalty oath is a business necessity, the Controller’s Office argues, because public employees must be “committed to working within and promoting the fundamental rule of law while on the job.”... It asserts that allowing addenda that indicate an oath-taker’s primary loyalty to God would render the oath meaningless and undermine critical state interests. This assertion may well prove true and, if so, the Controller’s Office may be able to defeat Bolden-Hardge’s disparate impact claim at a later stage of the litigation. But this is not apparent from the face of her Complaint,,,,

Catholic Media Group Can Move Ahead with Free Speech and Assembly Claims

In St. Michael's Media, Inc. v. Mayor and City Council of Baltimore, (D MD, March 31, 2023), a Maryland federal district court in an 80-page opinion allowed a conservative media organization that often criticizes the current leadership of the Catholic Church to move ahead with free speech and freedom of assembly claims against the city of Baltimore and the management of a city-owned concert venue.  The claims grew out of the cancellation of a contract for plaintiff to hold a conference and prayer rally to coincide with the Fall General Assembly of the U.S. Conference of Catholic Bishops. The court said in part:

St. Michael’s sufficiently alleges viewpoint-based discrimination.... St. Michael’s alleges that defendants cancelled the rally “specifically because they disapproved of the content and viewpoint of the speech that was expected to occur at the rally.”... St. Michael’s asserts that, when Voris spoke with Shea regarding the cancellation, “Shea told Mr. Voris that his office had received reports that St. Michael’s had ‘ties to the January 6 [2021] riot’ at the Capitol building in Washington, D.C.”.... As I acknowledged in granting the preliminary injunction ..., “invocation of the events of January 6, 2021, as horrifying as they were, cannot, without more, serve as a license for the City to dispense with its obligations under the First Amendment.”

The court however dismissed plaintiff's free exercise claim, saying in part:

[T]he Second Amended Complaint “does not raise any plausible suspicion”—even a slight suspicion—that plaintiff’s religious exercise was the “object” of the City’s decision to cancel the rally.

It also dismissed plaintiff's Establishment Clause claim, saying in part:

The only allegation in the SAC asserting City support for the USCCB is that “Shea unilaterally canceled St. Michael’s [sic] contract with SMG because the USCCB told him to.”...  [T]his still does not exhibit a religious preference. St. Michael’s bases this assertion on its belief that “Shea was told by USCCB members that the content of speech during St. Michael’s [sic] rally would be uncomfortable or offensive for the attendants of its Fall General Assembly to hear.”... Yet, the only religious element of the rally identified by St. Michael’s is praying the Rosary. There are no facts alleged to support the claim that defendants chose one religious group over another.

North Dakota Enacts A State RFRA

Last week, North Dakota Governor Dout Burgum signed House Bill No. 1136 (full text), North Dakota's version of the Religious Freedom Restoration Act. The new law provides in part:

... [A]state or local government entity may not:

a. Substantially burden a person's exercise of religion unless applying the burden to that person's exercise of religion in a particular situation is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling government interest;

b. Treat religious conduct more restrictively than any secular conduct of reasonably comparable risk; or

c. Treat religious conduct more restrictively than any comparable secular conduct because of alleged economic need or benefit.

ADF issued a press release announcing the signing of the bill. [Thanks to Greg Chaufen for the lead.]

Recent Articles of Interest

From SSRN:

• Carlo A. Pedrioli, Cakes and Communication: A Trans‐Atlantic Conversation Between the U.S. And U.K. Supreme Courts on the Tension Between Anti‐Discrimination Law and the Freedoms of Religion and Speech, (7 U. Bologna L. Rev. 183 (2023)).
• Debbie Kaminer, Religious Accommodation in the Workplace, Undue Hardship, and the Impact on Coworkers, (March 20, 2023).
• Patrick Parkinson, Gender Identity Discrimination and Religious Freedom, (Journal of Law and Religion, Vol. 38, No. 1, 2023).
• Raymond Caraher, Reproductive Injustice? A County-Level Analysis of the Impact of Abortion Restrictions on Abortion Rates, (Political Economy Research Institute Working Paper No. 573 (March 2023)).
• Allie Zunski, Ducking the System: Examining the Efficacy of Bounty Hunting Statutes that Stifle the Free Exercise of Constitutional Rights, (William & Mary Bill of Rights Journal, Vol. 31, No. 1, 2022).
• Kenneth Robert Davis, A Farewell to Harms: Rethinking the Injury Requirements of Title VII,   (Harvard Journal on Legislation, Vol. 61, 2024).

From SmartCILP:

• Joshua E. Kastenberg, Commander-in-Chief Authority and the Religious Rights of Service Members in Crisis Times: The Vaccine Mandate as a Call for Reincorporating the Standing Army Fears in Jurisprudence and Depoliticizing the Bench, 83 Louisiana Law Review 1-58 (2022).

Muslim Corrections Officer Applicant Can Move Ahead With 1st Amendment and Title VII Claims

In Talukder v. State of New York, (SD NY, March 31, 2023), a New York federal district court allowed a Sunni Muslim applicant to the New York Department of Corrections Training Academy to move ahead with his 1st Amendment free exercise claim as well as his Title VII failure to accommodate and disparate treatment claims.  Plaintiff sought to wear a 3-inch beard for religious reasons, while the Academy was unwilling to permit any beard longer than one-eighth of an inch. Finding a free exercise violation was adequately alleged, the court said in part:

DOCCS allows numerous uniformed staff to grow beards for secular reasons, while simultaneously denying trainees the same accommodation on religious grounds....

The justification that Defendants proffer for the ban—that “all trainees must pass a respirator fit test and applicable respirator training to become certified correctional officers,” ...—raises a fact-intensive inquiry that fails to justify dismissal at this stage. The Complaint raises a plausible inference that a policy requiring all trainees to be clean-shaven or wear facial hair no longer than 1/8 of an inch in order to pass a respiratory fit-test is not narrowly tailored to advance the goal of preparing trainees to become corrections officers—particularly given that many of those officers will never have to wear a respirator at all....

Maker of Religious-Themed Military Dog Tags Can Move Ahead with 1st Amendment Claims Against DoD

In Shields of Strength v. U.S. Department of Defense, (ED TX, March 31, 2023), a Texas federal district court allowed a company that manufactures military personnel "dog tags" to move ahead with certain of its 1st Amendment claims against the military that sought to prevent the company from producing dog tags with Biblical or other religious references near symbols or phrases that the military had registered for trademark protection. DoD regulations provide:

DoD marks may not be licensed for any purpose intended to promote ideological movements, sociopolitical change, religious beliefs (including non-belief), specific interpretations of morality, or legislative/statutory change.

 The court said in part:

If the military does not have meaningful conditions and controls on the licensing of its trademarks, the military may be deemed to have opened a limited public forum for private expression using those marks.... If a public forum were opened, disallowing views that promote religious beliefs would seem a prima facie case of unconstitutional viewpoint discrimination. So defendants’ motion to dismiss the viewpoint-discrimination claims ... is denied....

For purposes of the religious-exercise claims ... the court assumes that any marks not licensed for use on Shields’ dog tags are valid trademarks, used in a way likely to confuse consumers, without a defense to liability (other than religious-exercise rights). The question under Counts 2 and 8 is whether the military’s failure to license that usage violates the Free Exercise Clause or RFRA. 

The answer turns on the same categorization called for by the free-speech challenge.... If the military’s grants of trademark licenses are government speech, then any burden from the military’s licensing choice is justified by the compelling governmental interest that animates trademark law generally and, specifically, a trademark owner’s liberty to decide and control its own vision of a mark’s reputation....

On the other hand, if the military’s program here is so unrestrictive that the military has surrendered any licensing voice—making its licensing program a limited public forum for private speech using the marks—that deficiency also negates the compelling public interest for denying Shields’ ability to use the marks.... 

However, the court refused to issue a preliminary injunction because it found no substantial likelihood of success on the claims.

White House Recognizes Transgender Day of Visibility

Today the White House posted a Statement from President Joe Biden on Transgender Day of Visibility (full text) which says in part:

I want every member of the trans community to know that we see you. You’re each made in the image of God, and deserve love, dignity, and respect. You make America stronger, and we’re with you.

The White House also issued a Fact Sheet:  White House Honors Transgender Day of Visibility (full text), setting out a long list of initiatives of the Biden-Harris Administration supporting transgender individuals.

Church Preschool Challenges California's Anti-Discrimination Rules for Food Program Participants

Suit was filed earlier this month in a California federal district court by a Christian church and its preschool challenging the state's agreement form that was required for participants in the state's Child and Adult Food Care Program. The complaint (full text) in Church of Compassion v. Bonta, (SD CA, filed 3/10/2023), alleges in part:

The new 2022 CDSS PSA required the Church and Dayspring to certify that their management of the CACFP Food Program will be “operated in compliance with all applicable civil rights laws and will implement all applicable non-discrimination regulations....

Because of the Church’s orthodox religious beliefs regarding human sexuality, it was unable to comply with the PSA when it submitted its application for the 2022-2023 year. Specifically, Dayspring signed the PSA statement, but deleted the words “sexual orientation” and “gender identity.”

The complaint alleges that the requirement violates plaintiffs' Free Exercise, Free Speech and Establishment Clause rights. National Center for Law & Policy issued a press release announcing the filing of the lawsuit.

Militant Pro-Abortion Group Sued Under Access to Clinic Act

Suit was filed this week in a Florida federal district court against a militant abortion rights group by a pro-life pregnancy counseling and medical clinic that was vandalized and whose fundraising gala was disrupted by the group.  The complaint (full text) in Heartbeat of Miami, Inc. v. Jane's Revenge, (MD FL, filed 3/29/2023), charges violations of the Freedom of Access to Clinic Entrances Act, trespass, civil conspiracy and violation of the Florida RICO statute.

At the same time, Florida's attorney-general filed suit in the same court against two members of the organization who allegedly participated attacks against three abortion counseling centers in Florida. The complaint (full text) in Moody v. Freestone, (MD FL, filed 3/29/2023), seeks an injunction and civil penalties, invoking the Freedom of Access to Clinic Entrances Act.

Daily Signal and Fox News report on the lawsuits.

Fraudulent Misrepresentation Claims Against LDS Church Are Dismissed

 In Gaddy v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (D UT, March 28, 2023), a Utah federal district court, in a 56-page opinion, dismissed a Second Amended Complaint in a class action lawsuit brought by former members of the LDS Church. The suit alleges that the Church has fraudulently misrepresented its founding to its members while its leaders did not have a sincere religious belief in the narrative. It also alleges that the Church made fraudulent misrepresentations about the use of money received from members' tithing. The court said in part:

The court has twice considered and rejected Plaintiffs’ arguments that fraud-based claims directed towards the Church’s alleged misrepresentations and omissions concerning the First Vision, Church History, translations of the Books of Mormon and Abraham, and locations of events in the Book of Mormon are not subject to the church autonomy doctrine. The court also previously rejected Plaintiffs’ theory that they can avoid the church autonomy doctrine by arguing the sincerity of the Church’s beliefs or basing their claims on a theory of fraudulent omissions....

By pleading even more facts concerning Joseph Smith, Plaintiffs seek to have the court adjudicate the truth or falsity of the Church’s beliefs and teachings concerning its founder by challenging the accuracy of facts surrounding those beliefs. But again, “[i]f religious events themselves sit beyond judicial purview, religious beliefs concerning the details of those events must enjoy the same protection.”...

The court agrees with the Church that Plaintiffs’ fraud in the inducement claim fails, not for running into a First Amendment bar on the falsity or reliance elements, but for a more fundamental failure to plead the claim with the specificity required under Rule 9(b)....

The court agrees with the Church that Plaintiffs fail to state a claim for fraudulent nondisclosure on the tithing theory because Plaintiffs cannot show that a legal duty exists between the Church and its members requiring disclosure of material financial information....

The court is unaware of any case law supporting the proposition that “constructive fraud based on a breach of promises of future performance” is an independent, recognized cause of action in Utah....

Because the UCSA [Utah Charitable Solicitation Act] does not appear create a private cause of action, and because effectively Plaintiffs concede this point in their Opposition, the court dismisses Plaintiffs’ claim for violation of the UCSA....

The court agrees with the Church that Plaintiffs have failed to plead a cognizable civil RICO claim....

Kentucky Legislature Overrides Veto of Transgender Bill Restricting Schools and Doctors

As reported by AP, the Kentucky legislature yesterday voted to override Kentucky Governor Andy Beshear's veto of Senate Bill 150 (full text). The elaborate bill requires schools to notify parents of all school health and mental health services related to human sexuality, contraception or family planning and of parents' right to withhold consent for such services.

The bill prohibits policies that keep student information confidential from parents and policies that require use of pronouns that do not conform to a student's biological sex. However, information may be kept from parents if disclosure is likely to result in the child becoming abused or neglected.

Under the bill, no instruction on sexuality may be offered to children below grade 6, and no course at any grade level may discuss gender identity, gender expression or sexual orientation. Parental consent is required for students to take sex education courses. However, this does not bar discussing sexuality of historic persons or answering relevant student questions about human sexuality. 

The bill bars schools from allowing students to use restrooms or locker rooms reserved for students of the opposite biological sex. However other accommodations should be made for transgender students. 

Also, health care providers are prohibited from furnishing puberty blockers or providing other gender transition procedures to minors.

Governor Beshear's March 24 veto message said in part:

Senate Bill 150 allows too much government interference in healthcare issues and rips away the freedom of parents to make medical decision for their children. Senate Bill 150 further strips freedom from parents to make personal family decisions on the names their children are called and how people should refer to them....

I am also vetoing Senate Bill 150 because my faith teaches me that all children are children of God and Senate Bill 150 will endanger the children of Kentucky....

Lex18 reports on the bill.

11th Circuit: Jewish Student's Masking Objections Do Not Get 1st Amendment Protection

 In Zinman v. Nova Southeastern University, Inc., (11th Cir., March 29, 2023), the U.S. 11th Circuit Court of Appeals affirmed a Florida federal district court's dismissal of a suit by a Jewish law student challenging on religious grounds his school's COVID mask mandates. The court said in part:

None of Zinman’s claims are viable. His application for injunctive relief is moot as to all of the defendants. Zinman’s damages claims fare no better. His Title II claim fails because damages are not available under Title II of the Civil Rights Act. His Title VI claim fails because the Second Amended Complaint does not contain any factual allegations -- as it must -- from which we could infer that any of the masking decisions NSU made were animated by discriminatory intent. And his § 1983 claims fail because Zinman has not plausibly alleged that any of his constitutional rights were violated.....

Zinman has failed to state a claim for a free exercise violation arising under the First Amendment because Zinman does not explain why the mask mandates were not neutral and generally applicable. Neutral rules of general application are subject only to rational basis review.... The adoption of mask mandates easily passed this test.... 

Zinman has also failed to state a claim for a free speech violation because wearing a mask is not speech or expressive conduct protected by the First Amendment.... 

The likelihood is exceedingly remote and attenuated that a reasonable passerby observing Zinman without a mask on would interpret his unmasked status as an attempt to convey some sort of message. There are so many more probable explanations for a person’s decision to go unmasked that have nothing to do with conveying any sort of message -- political, religious, or otherwise. Thus, for example, a person may not be masked for medical reasons, or because he left his mask at home, or perhaps just on account of a personal dislike for masking.

Christain School Sues Over "Poison Pill" Provisions That Exclude It from Maine's Tuition Payment Program

Suit was filed this week in a Maine federal district court by a Christian school challenging 2021 amendments to Maine's Human Rights Act that operate to exclude the school from participating in Maine's tuition payment program for students from districts without public high schools.  The motion for a preliminary injunction (full text) which was filed along with the complaint in Crosspoint Church v. Makin, (D ME, filed 3/27/2023), focuses on provisions in 5 MRSA §4602 that now require schools that participate in the tuition reimbursement program to comply with the sexual orientation and gender identity non-discrimination provisions. Religious schools that do not receive public funding are exempt from that provision. The law also now provides that "to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing." Plaintiff characterizes these provisions as "poison pills" that prevent it from participating in the tuition payment program without violating its religious beliefs after the U.S. Supreme Court in Carson v. Makin upheld the right of sectarian schools to participate. Plaintiff seeks a preliminary injunction based on violations of the Free Exercise, Free Speech and Establishment Clauses. Washington Times reports on the lawsuit.

9th Circuit Hears Oral Arguments on Fire Chief's Religious Discrimination Claim

On Monday, the U.S. Court of Appeals for the 9th Circuit heard oral arguments in Hittle v. City of Stockton (video of full oral arguments). In the case (full text of district court opinion), a California federal district court rejected religious discrimination and retaliation claims brought by Ronald Hittle, Stockton, California's former Fire Chief. He was fired in part for attending a two-day religious "Global Leadership Summit" with three other city employees on city time and using a city vehicle. First Liberty issued a press release on the oral arguments.

New Florida Law Expands Eligibility for School Vouchers

Florida Governor Ron DeSantis yesterday signed HB1 (full text) into law. The law expands eligibility for school vouchers which were previously limited to low-income families. Now low-income families have a priority, but others are eligible as well. The House of Representatives Staff Analysis of the Bill says in part:

For decades, Florida has been a national leader in providing high quality education options for its parents and students. In addition to a myriad of public options, Florida offers scholarship programs that allow parents of eligible students to register and attend private schools that may better serve a student’s particular needs or to provide educational options for students with disabilities. These programs primarily consist of the Florida Tax Credit Scholarship (FTC), the Family Empowerment Scholarship for students attending private school (FES-EO), and the Family Empowerment Scholarship for students with disabilities (FES-UA)....

The bill expands eligibility for the FTC and FES-EO scholarships to any student who is a resident of Florida and is eligible to enroll in kindergarten through grade 12 in a public school.... The bill retains the priority for FTC and FES-EO scholarships for those students whose household income does not exceed 185 percent of the federal poverty level (FPL) and creates a second priority for households with income not exceeding 400 percent of the FPL.

Under the bill, each parent of an eligible student will receive an empowerment savings account to choose among a variety of options to customize their child’s K-12 education. The bill expands the scope of authorized uses for scholarships....

News Service of Florida reports on the new law.

Prosecutors' Council Releases Report on Past Child Sexual Abuse by Catholic Clergy In Georgia

Last week, the Prosecuting Attorneys Council of Georgia released its Report of Child Sexual Abuse in the Archdiocese of Atlanta and the Diocese of Savannah (full text) (press release). The 267-page report stems from a review of Catholic Archdiocese and Diocese records, files, documents and reports. Church officials cooperated fully in the review. The Report concludes in part:

This file review did not uncover any current, ongoing, or unreported sexual abuse by priests or criminal conduct. It did reveal historical criminal allegations in Georgia against priests. None of those priests could be prosecuted because they are either deceased, have already been prosecuted or the statute of limitations expired long before the review was agreed to by the parties. The evaluation of the files also uncovered that the Church, outside of and within Georgia, relocated priests after they were accused of sexually abusing children. At times, it appeared the church did so without providing notice to officials in the new parish, diocese, or archdiocese of the prior accusations of sexual abuse of children....

Further, this review uncovered historical acts by the church and its personnel that enabled sexual abuse of minors by its priests and prevented the discovery and investigation of these acts by public or civil authorities....

[S]ince 2002, the Archdiocese of Atlanta and the Diocese of Savannah have been notifying the appropriate authorities either by contacting the Department of Family and Children Services or law enforcement of child abuse allegations reported to their organizations....

Atlanta Journal Constitution discusses the Report.

Certiorari Denied in Catholic School Teacher's Suit Against His Union

The U.S. Supreme Court yesterday denied review in Jusino v. Federation of Catholic Teachers, Inc., (Docket No. 22-662, certiorari denied 3/27/2023). (Order List). In the case, the U.S. 2nd Circuit Court of Appeals held  that the National Labor Relations Act does not apply to a Catholic parochial school teacher's duty-of-fair-representation claim against his union.

Yeshivas Win Partial Victory In Challenge To New York's Substantial Equivalency Rules

In In re Parents for Educational and Religious Liberty in Schools v. Young, (Albany County Sup.  Ct., March 23, 2023), a New York state trial court gave a partial victory to Orthodox Jewish day schools (yeshivas) that are challenging the state's "substantial equivalency" regulations. The regulations require that students in non-public schools receive instruction in required subject areas that is substantially equivalent to instruction received by public school students in the same district. While the court rejected petitioners' constitutional challenges, it held that the Department of Education exceeded its authority in promulgating rules that require parents to withdraw their children from schools that do not meet the substantial equivalency standards and enroll them elsewhere, and which allow local school authorities to shut down schools that do not meet the required standards. The court said in part:

[T]the statutory scheme places the burden for ensuring a child's education squarely on the parent, not the school.... [T]he Compulsory Education Law does not authorize or contemplate the imposition of penalties or other consequences upon a nonpublic school that has been found not to provide substantially equivalent instruction.

... [T]the court finds that respondents lack authority to direct parents to completely unenroll their children from nonpublic schools that have been determined to fall short of meeting each and every substantial equivalency criteria, nor do respondents have authority to direct the closure of such schools. Rather, the parents should be given a reasonable opportunity to prove that the substantial equivalency requirements for their children's education are satisfied by instruction provided through a combination of sources. For example, parents should be permitted to supplement the education that their children receive at a nonpublic school with supplemental instruction that specifically addresses any identified deficiencies in that education, such as by providing supplemental home instruction in compliance with the home schooling regulations as set forth in 8 NYCRR 100.10. Therefore, if a student is found to be attending a school that is not deemed "substantially equivalent", the home schooling rules shall apply if the parent chooses to keep their child enrolled at that school. As such, the parent may submit a plan that utilizes said school along with supplemental education as needed to create a satisfactory Individualized Home Instruction Plan....

Hamodia reports on the decision. [Thank to Thomas Rutledge for the lead.]

Recent Articles of Interest

 From SSRN:

• Jeffrey A. Redding, Queer and Religious Alliances in India and Beyond ,(Law School Policy Review (The Queer Column) (2023)).
• Kamran Bajwa & Samuel E. Miller, Liberalism Versus Liberalism: An Analysis of Muslim-American Amicus Curiae Arguments Concerning Complicity-Based Conscience Claims, (Journal of Law and Religion, Vol. 38, No. 2, 2023 (Forthcoming)).
• Tasmiah Zaman, Freedom of Religion for Non-Muslims in Islam: A Pakistani Affair, (Law and Humanities Quarterly Reviews, Vol.5 No.2 (2022)).
• Douglas Laycock, Thomas Charles Berg, Carl H. Esbeck & Robin Fretwell Wilson, The Respect for Marriage Act: Living Together Despite Our Deepest Differences, (University of Illinois Law Review, Forthcoming).
• Muhammad Nur, Harun, Safrida & Alief Farhan, Sayam as a Sanction Model Against Children in Conflict with the Law in Aceh, (Law and Humanities Quarterly Reviews, Vol.1 No.4 (2022)).
• Shahbaz Ahmad Cheema, Section 4 of Muslim Family Laws Ordinance 1961, Pakistan: An Exploration of Interpretive Tensions (March 14, 2023).
• Ibrahim Abiodun Oladapo, et. al., Customers’ Perceptions of FinTech Adaptability in the Islamic Banking Sector: Comparative study on Malaysia and Saudi Arabia, (Journal of Modelling in Management, 17(4), 1241-1261. (online) (2022).
• Megawati Barthos, Responsibilities of Marketplace Providers in Providing Non-Halal Information as Consumer Protection, (Law and Humanities Quarterly Reviews, Vol.2 No.1 (2023)).

From SmartCILP and elsewhere:

• Nathaniel Romano, Subsidiary & Vulnerability Theory: A Case Study for Deepening the Relationship between Catholic Social Teaching and the Responsive State, 71 Catholic University Law Review 731-762 (2022).
• Satvinder S. Juss, Religious Satire, Moral Restraint and the Charlie Hebdo Cartoons, 44 Human Rights Quarterly 142-167.
• James G. Dwyer, Smith's Last Stand? Free Exercise and Foster Care Exceptionalism, 24 University of Pennsylvania Journal of Constitutional Law 856-906 (2022).

NYPD Administrative Review of Religious Exemption Claim Was Arbitrary

In Matter of Quagliata v New York City Police Department, (NY County Sup. Ct., March 17, 2023), a New York state trial court remanded a case in which an administrative Panel refused to grant an NYPD police officer a religious exemption from New York City's COVID vaccine mandate. The court said in part:

Inasmuch as the Panel’s determination sets forth absolutely no rationale whatsoever for its conclusions, other than to incorporate the conclusory reasons articulated by the NYPD EEOD, the Panel’s determination is facially arbitrary and capricious, and may be annulled on that ground alone....

Even were the court directly to review the NYPD EEOD’s initial determination, it nonetheless would be constrained to conclude that the initial determination also was arbitrary and capricious. The NYPD EEOD’s determination is a prime example of a determination that sets forth only the most perfunctory discussion of reasons for administrative action....

The court’s conclusion in this regard should not be construed as a ruling that, had the petitioner’s stated reasons for his request for an exemption, and his discussion of religious doctrine, properly been analyzed..., the petitioner’s contentions would have constituted a proper basis for an exemption... 

With respect to ... violation of his First Amendment right to free exercise of religion and discrimination in employment..., the petitioner has not established either that the City’s vaccine mandate or the termination of his own employment were premised upon religion, as he has not demonstrated that his conclusions about sin, the use of embryonic stem cells in the development and improvement of various vaccinations and medications, and the alleged proscription of desecrating the human body via any genetic manipulation that mRNA vaccinations might generate, are established Catholic doctrine, or merely his personal interpretation of his obligations as a practicing Catholic.

ADL Report: Antisemitic Incidents In U.S. In 2022 Reach New High

Yesterday the Anti-Defamation League issued its 2022 annual Audit of Antisemmitic Incidents. The Executive Summary rads in part:

In 2022, ADL tabulated 3,697 antisemitic incidents throughout the United States. This is a 36% increase from the 2,717 incidents tabulated in 2021 and the highest number on record since ADL began tracking antisemitic incidents in 1979. This is the third time in the past five years that the year-end total has been the highest number ever recorded.

Incidents increased in each of the major Audit categories: antisemitic harassment increased 29% to 2,298; antisemitic vandalism increased 51% to 1,288 and antisemitic assaults increased 26% to 111. The vast majority of antisemitic assaults (107 out of 111) were perpetrated without the use of a deadly weapon. There was one fatality. Notably, visibly Orthodox Jews were targeted in 53% of the assault incidents nationally. This year, no assaults perpetrated against the Jewish community resulted in mass causalities.

President Sends Ramadan Greetings

Yesterday President Biden issued a Statement (full text) extending best wishes from himself and the First Lady to Muslims across the U.S. and around the world as they begin the holy month of Ramadan. The Statement says in part:

Today especially, we remember the universal human right to practice, pray, and preach our faiths peacefully and openly. And together with our partners, the United States stands in solidarity with Muslims who continue to face oppression—including Uyghurs in the People’s Republic of China, Rohingya in Burma, and other Muslim communities facing persecution around the world.

Immigration Officials Violated Pastor's Free Exercise Rights

In Dousa v. U.S. Department of Homeland Security, (SD CA, March 21, 2023), a California federal district court held that U.S. immigration officials violated the free exercise rights of Kaji Dousa, a pastor at New York City's Park Avenue Christian Church. Dousa worked extensively with immigrants in Mexico and at the southern border.  The court concluded that her rights were violated when in December 2018 a U.S. Customs and Border Patrol official e-mailed the Mexican government urging it to deny the pastor entry into Mexico and to send her back to the United States. Dousa performed religious marriage ceremonies for immigrant couples with children entering the United States who were in common-law marriages. This made it more likely that they would not be subject to family separation in the U.S. The court said in part:

While the United States undoubtedly has a compelling state interest in protecting the border, Oliveri’s admission that the email was “[l]iterally, creative writing . . . [w]ithout any basis” indicates that there exists no substantial state interest in requesting that Mexican authorities deny entry to Dousa. And, as evidenced by the United States’ other investigative efforts, there exist more “narrowly tailored” approaches to achieve border security. Dousa therefore has established that the CBP violated her Free Exercise rights by restricting her ability to minister to migrants in Mexico.

The court however rejected Dousa's claim that the investigation of her activities violated her free exercise rights. The court ordered:

... Defendants SHALL COMMUNICATE in writing to appropriate Mexican immigration authorities that their request in Oliveri’s December 10, 2018 email is fully and immediately rescinded and revoked as to Dousa.

[Thanks to Heather Kimmel for the lead.] 

Moving of Confederate Monument Did Not Violate Plaintiffs' Religious Rights

In Edgerton v. City of St. Augustine, (MD FL, March 20, 2023), a Florida federal district court rejected plaintiffs' challenges to the city's moving a monument honoring Confederate Civil War veterans from City Park to a new location.  Among other things, the court rejected Establishment Clause and Free Exercise challenges, saying in part:

Plaintiffs allege that "the message [the monument] conveyed has changed over time[,] which demonstrates why the removal of it. . . appears hostile and offensive to those who use it for moments of respect, prayer, and remembrance of those long gone." ... Plaintiffs do not allege the City considered any of Plaintiffs' religious beliefs when it decided to remove and relocate the monument. Additionally, Plaintiffs provide no allegations of historical practices or understandings of similar instances of a city removing a monument, and such removal amounting to an Establishment Clause violation.

... Mr. Edgerton "expressed his religious beliefs by paying respect to the dead [soldiers] by praying at and protecting the 'empty tomb' of his 'Southern family[.]"... Mr. Ross alleges that he "had participated in prayer at the site" of the monument, but since it has been relocated, his ability to continue doing so is "nearly impossible."... Ms. Pacetti alleges that she "has freely exercised her right to Christian memorial expression of her deceased family member at the Plaza next to the [m]onument[.]"... Mr. Parham alleges that he "continued to visit the [m]onument after his father's death . . . exercising his religious memorial expressions.",,,

Accepting these allegations as true, Plaintiffs do not state a plausible violation of their Free Exercise rights. Plaintiffs can still exercise any and all of the beliefs they have alleged.... Plaintiffs do not allege facts that the City relocated the monument because of Plaintiffs' religious beliefs....

Presidential Proclamation Protects Sacred 500,000+ Acres in Nevada Under Antiquities Act

Yesterday, President Biden issued A Proclamation on Establishment of the Avi Kwa Ame National Monument (full text). The lengthy Proclamation sets aside 506,814 acres in southern Nevada, and items within that area, as protected under the Antiquities Act. The Proclamation reads in part:

The mountain and the surrounding arid valleys and mountain ranges are among the most sacred places for the Mojave, Chemehuevi, and some Southern Paiute people, and are also significant to other Tribal Nations and Indigenous peoples, including the Cocopah, Halchidhoma, Havasupai, Hopi, Hualapai, Kumeyaay, Maricopa, Pai Pai, Quechan, Yavapai, and Zuni....

For the Tribal Nations that trace their creation to Avi Kwa Ame, the power and significance of this place reside not just in the mountain itself, but radiate across the valleys and mountain ranges of the surrounding desert landscape containing the landmarks and spiritually important locations that are linked by oral traditions and beliefs.  Tribal Nations have shared those traditions and beliefs across many generations through ... origin songs, which are central to Tribal members’ knowledge of the landscape, enabling them to navigate across the diverse terrain, find essential resources, and perform healing, funeral, and other rituals....

This entire landscape is an object of historic and scientific interest requiring protection under ... the "Antiquities Act".... As well as being an object itself, the landscape contains innumerable individual geologic features, archaeological sites, and havens for sensitive and threatened species... and it provides habitat for centuries-old Joshua trees and other objects that are independently of historic or scientific interest and require protection under the Antiquities Act.  Some of the objects are also sacred to Tribal Nations; are sensitive, rare, or vulnerable to vandalism and theft; or are dangerous to visit and, therefore, revealing their specific names and locations could pose a danger to the objects or the public.

The White House also issued a Fact Sheet on the Proclamatioin. In another Proclamation issued yesterday, the President also created the Castner Range National Monument in El Paso, Texas. E&E News reports on these and related Presidential actions.

3rd Circuit: Qualified Immunity Can Be Asserted in RFRA Case, But Not in This One

In Mack v. Yost, (3rd Cir., March 21, 2023), the U.S. 3rd Circuit Court of Appeals in a 2-1 decision held that qualified immunity can be asserted as a defense by prison officers in a suit against them under RFRA, but also concluded that at the summary judgment stage here defendants had not shown facts demonstrating that they are entitled to the defense. The majority summarized its 48-page opinion in part as follows:

When Mack was incarcerated, he worked at the prison commissary, where two supervising prison guards singled him out for harassment because of his Muslim faith. Most significantly, the evidence as it now stands shows that, when Mack would go to the back of the commissary to pray during shift breaks, the guards would follow him and deliberately interfere with his prayers by making noises, talking loudly, and kicking boxes. Fearing retaliation if he continued to pray at work, Mack eventually stopped doing so, but the guards nevertheless engineered his termination from his commissary job. He then sued.

... The guards ... moved for summary judgment ... on the theory that they are entitled to qualified immunity.... [T]he District Court sided with them. It held that ... no clearly established caselaw would have put a reasonable person on notice of the illegality of the guards’ actions. Mack has again appealed.

We agree with Mack that granting summary judgment was wrong. While ... qualified immunity can be asserted as a defense under RFRA, the officers have not – at least on this record – met their burden of establishing that defense.... [E]vidence of the RFRA violation here involved significant, deliberate, repeated, and unjustified interference by prison officials with Mack’s ability to pray as required by his faith. Based on those facts ..., the officers are not entitled to qualified immunity. But if different facts come out at trial, the officers may again raise qualified immunity....

Judge Hardiman dissented, saying in part:

Even accepting the majority’s articulation of the right at issue, I would not find it clearly established here.

The cases Mack cites, as the majority notes, are not factually analogous. And the majority identifies no other precedent—from our Court or elsewhere, before or after RFRA was enacted—sufficiently similar to deny Defendants qualified immunity.

President Biden Sends Greeting To Those Celebrating Nowruz

Yesterday the White House issued a statement (full text) from President Biden and the First Lady extending best wishes to everyone celebrating Nowruz across the United States and around the world. Nowruz is the Persian New Year, celebrated in the Middle East, Central and South Asia, the Caucasus and parts of Europe. The Statement says in part:

This year, Nowruz comes at a difficult time for many families, when hope is needed more than ever—including for the women of Iran who are fighting for their human rights and fundamental freedoms. The United States will continue to stand with them, and all the citizens of Iran who are inspiring the world with their conviction and courage. And together with our partners, we will continue to hold Iranian officials accountable for their attacks against their people.

New Arkansas Law Authorizes Monument to Unborn Children on Capitol Grounds

As reported by ABC News, on Thursday Arkansas Governor Sarah Huckabee Sanders signed SB307 (full text) into law. The new law provides for a privately funded Monument To Unborn Children to be placed on the state Capitol grounds.  The monument is to commemorate "unborn children aborted during the era of Roe v. Wade..." The monument is to be funded by gifts, grants and donations from individuals and organizations.  The law also provides for legal defense of the monument if it is challenged, for maintenance of the monument and for replacement of it "if necessary due to catastrophic damage."

USCIRF Holds Hearing on Russian Violation of Religious Freedom Through Its Invasion of Ukraine

Last Wednesday, the U.S. Commission on International Religious Freedom held a virtual hearing on Russia's Invasion of Ukraine: Implications for Religious Freedom. (Video of full Hearing and transcripts of written presentations.) USCIRF described the hearings:

Since Russian President Vladimir Putin launched the full-scale military invasion of Ukraine a year ago, Russian forces have committed numerous religious freedom and other related human rights violations in Ukraine, including the killing and torture of religious leaders and the destruction of countless houses of worship. Russian officials have repeatedly turned to antisemitic rhetoric and Holocaust distortion in an effort to justify the country’s groundless invasion. In the areas of Ukraine that Russia has occupied since 2014, its de facto authorities and proxies have imposed draconian laws to suppress religious communities such as the Orthodox Church of Ukraine, predominantly Muslim Crimean Tatars and Jehovah’s Witnesses. Meanwhile, in Russia, the state has continued to prosecute an ever-growing list of religious groups as so-called “extremists” for their peaceful religious activities and launched a ruthless campaign to silence civil society and independent media.

Certiorari Denied in Challenge by Preacher to University's Speaker Permit Rule

The U.S. Supreme Court today denied review in Keister v. Bell, (Docket No. 22-388, certiorarari dened, 3/20/2023). (Order List.) In the case, the U.S. 11th Circuit Court of Appeals rejected a challenge to the University of Alabama's policy that requires a permit in order for a speaker to participate in expressive conduct on University grounds, with an exception for “casual recreational or social activities.” The challenge was brought by a traveling evangelical preacher who, with a friend, set up a banner, passed out religious literature and preached through a megaphone on a campus sidewalk. (See prior posting.) Links to filings with the Supreme Court in the case are available here.  Reuters reports on the Court's action. [Thanks to Thomas Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Barbara Hoffman, Accommodating Disabilities in the Post-COVID-19 Workplace, (Indiana Journal of Law and Social Equality, Forthcoming).
• Andrew M. Koppelman, The Use and Abuse of Tradition: A comment on DeGirolami’s Traditionalism Rising, (Journal of Contemporary Legal issues, 2023 Forthcoming).
• Jane Tien, From The Vatican With Cash: Prosecuting Money Laundering In London Real Estate, (University of Miami International & Comparative Law Review, Vol. 30, 2022).
• Shubhankar Agnihotri, A Critical Analysis of Doctrine of Pious Obligation, (March 10, 2022).
• SpearIt, Understanding an American Paradox: An Overview of The Racial Muslim: When Racism Quashes Religious Freedom, (Hastings Constitutional Law Quarterly, Vol. 50, p. 141, 2023).
• Tasmiah Zaman, Freedom of Religion for Non-Muslims in Islam: A Pakistani Affair, (Law and Humanities Quarterly Reviews, Vol.5 No.2 (2022)).
• Jonathan F. Mitchell, Why Was Roe v. Wade Wrong?. (Forthcoming Geoffrey R. Stone and Lee Bollinger, eds., Roe v. Dobbs: The Past, Present, and Future of a Constitutional Right to Abortion (Oxford 2023)).
• Ashraf M,A. Elfakharani, The Impact of Covid 19 on the Obligations of Contractors through the Commercial Contract in Saudi Arabia and the Islamic Law Perspective, (Law and Humanities Quarterly Reviews, Vol.1 No.3 (2022)).

From SmartCILP:

• A Festschrift Honoring Abdullahi Ahmed An-Naim, Emory International Law Review, Vol. 36, Issue 4 (2022).
• Amanda Whiting, Book Review. Constituting Religious Conflict in a Multicultural State. Constituting Religion: Islam, Liberal Rights, and the Malaysian State, by Tamir Moustafa, [Abstract], 47 Law & Social Inquiry 1321-1326 (2022).

Transcript of Hearing Released in Challenge to FDA Approval of Mifepristone

On March 15, Judge Matthew Kacsmaryk in the federal district court in the Northern District of Texas held a hearing on the preliminary injunction motion in the widely-watched case of Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration. The full transcript of the hearing has now been released. As previously reported, the case challenges the FDA's long-standing approval for use in the United States of the chemical abortion drug mifepristone. Axios reports on the hearing.

New Utah Law Requires All Abortions To Be In Hospitals, Not In Clinnics

On Wednesday, Utah Governor Spencer Cox signed HB467 (full text) which requires that after January 1, 2024, all abortions be performed in hospitals, not in abortion clinics. Additionally, it expands the exception for rape and incest to also include any pregnancy of a child under 14 years of age. In another change, however, the new law allows abortions in all of these cases only before 18 weeks of pregnancy. The new law also makes a number of other changes in the state's abortion statutes.  Legislative history of the bill is available here.  AP reports on the new law. AP says in part:

Last year’s Supreme Court ruling [in Dobbs] triggered two previously passed pieces of legislation— a 2019 ban on abortion after 18 weeks and a 2020 ban on abortions regardless of trimester, with several exceptions including for instances of risk to maternal health as well as rape or incest reported to the police. The Planned Parenthood Association of Utah sued over the 2020 ban, and in July, a state court delayed implementing it until legal challenges could be resolved. The 18-week ban has since been de facto law.

Abortion-access proponents have decried this year’s clinic ban as a back door that anti-abortion lawmakers are using to limit access while courts deliberate.

Kamala Harris: Abortion Bans Without Rape and Incest Exceptions Are "Immoral"

Vice President Kamala Harris spoke yesterday in Des Moines, Iowa at a Roundtable on Reproductive Rights. (Full text of her remarks). She said in part:

We have seen what I would consider and do consider, as a former prosecutor, to be an immoral approach to survivors of rape or incest where, in states, there is even no exception after an individual has survived such an act of violation to their body and then, by their state, being deprived of the ability, after that, to make other decisions about their body.  It’s immoral. 

And let’s be clear: On this issue, one does not have to abandon their faith or deeply held beliefs to agree the government should not be telling her or any individual what to do with their body. 

Let them make that decision if they choose with their priest, with their pastor, with their rabbi, with whomever.  But the government should not be telling her what to do with her own body.

North Dakota Supreme Court: State Constitution Protects Right to Abortion to Save Life or Health of Mother

In Wrigley v. Romanick, (ND Sup. Ct., March 16, 2023), the North Dakota Supreme Court refused to vacate a trial court's preliminary injunction that barred enforcement of the state's 2007 abortion ban whose effectiveness was to be triggered by the overruling of Roe v. Wade. In particular, the court concluded that the absence of an exception in the abortion ban for preserving the health of the mother was a critical defect in the law.  The court said in part:

The North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety. These rights implicitly include the right to obtain an abortion to preserve the woman’s life or health....

Fundamental rights are those which are deeply rooted in history and tradition and are implicit in the concept of ordered liberty.... North Dakota’s history and traditions, as well as the plain language of its Constitution, establish that the right of a woman to receive an abortion to preserve her life or health was implicit in North Dakota’s concept of ordered liberty before, during, and at the time of statehood....

Justice Tufte filed a concurring opinion, saying in part:

At this time we consider only the preliminary injunction, and we need not decide the constitutionally necessary scope of any health exception.

Justice McEvers, joined by Justice Crothers and Judge Narum, filed an opinion concurring specially, and saying in part:

I write separately to explain how and why the rights protected under the North Dakota Constitution may be broader than those protected under the United States Constitution.

NPR reports on the decision.

Albany, NY Catholic Diocese Files for Bankruptcy Reoganization

The Roman Catholic Diocese of Albany, New York announced that on Wednesday it filed a petition for bankruptcy reorganization in federal bankruptcy court.  The Bishop's letter to the faithful said in part:

We maintain global mediation would have provided the most equitable distribution of the Diocese’s limited financial resources but as more Child Victims Act (CVA) cases reached large settlements, those limited funds have been depleted. The Chapter 11 filing is the best way, at this point, to ensure that all Victim/Survivors with pending CVA litigation will receive some compensation. The decision to file was not arrived at easily, but we, as a Church, can get through this and grow stronger together.

To date, the Diocese has been named in more than 400 CVA lawsuits which were filed between Aug. 15, 2019, and Aug. 14, 2021. With the assistance of the Court and demonstrating its ongoing good faith commitment to Victim/Survivor claims, the Diocese has separately settled more than 50 CVA cases....

This filing also puts on hold the lawsuits involving the St Clare’s pensioners. That was not our purpose for filing. While many questions remain regarding the St. Clare’s pension fund, the plight of the pensioners is of great concern to me. The St. Clare’s pensioners are certainly close to my heart and, as I would do with anyone in a difficult situation, I offer my pastoral care.

CNA reports on the bankruptcy filing.

Suit Challenges Connecticut's Elimination of Religious Exemption from School Vaccination Requirement

Suit was filed last week in a Connecticut federal district court by a Christian preschool and the church that sponsors it challenging Connecticut's removal of religious exemptions from its statute requiring various vaccinations for preschool children. The complaint (full text) in Milford Christian Church v. Russell-Tucker, (D CT, filed 3/6/2023) alleges that the requirement violates plaintiffs' free exercise, free speech, freedom of association, equal protection, and child rearing rights. It alleges in part:

63. Conn. Gen. Stat. § 10-204a denies a generally available benefit – education– to children if their parents do not abandon their religious beliefs while affording the same benefit to parents and children who assert a medical exemption.

64. Adding insult to injury, Conn. Gen. Stat. § 10-204a prevents parents from seeking alternative education options for their children by applying the same mandate to private schools, daycares, and pre-schools, including those operated by churches and religious organizations.

65. In other words, Conn. Gen. Stat. § 10-204a forces parents to either renounce their religious beliefs and vaccinate their children or homeschool their children– something that many parents cannot do – thus depriving them any educational opportunities.

Christian Post reports on the lawsuit.

Catholic Diocese of Santa Rosa, California Files for Bankruptcy

Last week, the Catholic Diocese of Santa Rosa, California (the state's smallest Catholic diocese) announced that it is filing for Chapter 11 bankruptcy reorganization. According to the Diocese, the decision was made because of the large number of child sex abuse lawsuits filed against it during a 3-year window created by the California legislature for suits to be filed even though the statute of limitations had previously run. Some of the lawsuits relate to conduct that occurred as long as 60 years ago. The Diocese said in part:

These cases are too numerous to settle individually and so they have accumulated until the closing of the three-year window. Now that the window is closed, we have received notice of at least 160 claims and we have information that perhaps more than 200 claims have been filed in total against the Diocese.

 ... [I]n 2003 the Diocese faced similar circumstances but with many fewer cases. At that time excess property was sold, money borrowed and the Diocese paid approximately $12 million dollars with an additional $19 million coming from insurance. Since then, the Diocese has expended an additional $4 million on individual settlements. Now, facing at least 160 new cases, with excess property depleted, with insurance for many of the years either non-existent or exhausted it is impossible to see any way forward without recourse to the bankruptcy protections our Country makes available....

[W]e are deeply saddened that so many have endured abuse in the past and that the scourge of child sexual abuse is a part of our diocesan history. The present action of the Diocese is necessary and through this process we hope to provide for those who have come forward and who are yet to come forward at least some compensation for the harms they have endured.

Links to all the legal filings in the case are available at this website. Catholic News Agency reports on the bankruptcy filing.