8th Circuit: Street Preacher Did Not Show Entitlement To Preliminary Injunction

In Sessler v. City of Davenport, (8th Cir., March 18, 2021), the U.S. 8th Circuit Court of Appeals affirmed the denial of a preliminary injunction to a street preacher who in 2018 had been required by police to leave the Street Fest area in Davenport. He was limited to preaching across the street from one of the festival entrances. Plaintiff sought a preliminary injunction to bar enforcement of the city's Special Events Policy against him through December 2022. The court held:

Although Sessler possesses a First Amendment right to communicate his messages in a public forum, he does not have the wholesale right to disrupt an event covered by a permit....

Even if we assume for purposes of this appeal, without deciding, that Sessler has shown a likelihood of success on the merits, we find Sessler’s inability to demonstrate a threat of irreparable harm heavily weighs against granting preliminary injunctive relief....

The facts as alleged by Sessler show that he was allowed to continue preaching in the City’s public sidewalks and streets, just not those demarcated and secured for use by Street Fest in July 2018. And, although Sessler’s Complaint is based on his removal from a festival governed by the City’s Policy, Sessler does not provide any concrete plans to share his messages at future festivals in the City.

New York's Repeal Of Religious Exemption From Vaccination Requirement Is Upheld

In F.F. v. State of New York, (App. Div., March 18, 2021), a New York state appellate court rejected parents' constitutional challenges to New York's repeal of the religious exemption from mandatory vaccination for school children. The court upheld the repeal, finding that it was a neutral law of general applicability prompted by the measles outbreak, even though the repeal eliminated a religious exemption. The court said in part:

[W]e do not find that the timing of the repeal reveals political or ideological motivation; rather, the record reflects that the repeal simply worked its way through the basic legislative process and was motivated by a prescient public health concern....

[W]e reject plaintiffs' claims that, based upon statements by some of the legislators, the repeal was motivated by religious animus. Significantly, the 11 statements alleged to suggest religious hostility were attributed to only five of the over 200 legislators in office at any given time.... More importantly, many of the statements do not demonstrate religious animus, as plaintiffs suggest, but instead display a concern that there were individuals who abused the religious exemption to evade the vaccination requirement based upon non-religious beliefs.... The repeal relieves public school officials from the challenge of distinguishing sincere expressions of religious beliefs from those that may be fabricated.

9th Circuit: Football Coach's Past-Game Prayers Violate Establishment Clause

In Kennedy v. Bremerton School District, (9th Cir., March 18, 2021), the U.S. 9th Circuit Court of Appeals upheld a Washington state school board's dismissal of a high school football coach who insisted on prominently praying at the 50-yard line immediately after football games. The long-running high-profile case was before the 9th Circuit for the second time. (See prior posting.) The court issued a Summary of its decision along with the opinion, saying in part:

The panel held that the record before it and binding Supreme Court precedent compelled the conclusion that the District would have violated the Establishment Clause by allowing Kennedy to engage in the religious activity he sought. Kennedy’s attempts to draw nationwide attention to his challenge to the District showed that he was not engaging in private prayer. Instead, he was engaging in public speech of an overtly religious nature while performing his job duties. The District tried to accommodate Kennedy, but that was spurned by Kennedy insisting that he be allowed to pray immediately after the conclusion of each game, potentially surrounded by students. The panel held that the district court correctly granted summary judgment to the District on Kennedy’s free speech and free exercise claims.

The panel held that Kennedy’s Title VII claims alleging failure to rehire, disparate treatment, failure to accommodate and retaliation also failed.

Judge Christen also issued a concurring opinion, joined by Judge Nelson. Friendly Atheist blog has more on the decision. [Thanks to Mel Kaufman for the lead.]

Court Rejects Claims of Discrimination Against Yemeni Family Members Of US Citizens

In Almakalani v. McAleenan, (ED NY, March 16, 2021), a New York federal district court rejected a number of challenges to alleged unreasonable delays by the federal government in adjudicating whether 86 family members of petitioners could lawfully immigrate from Yemen as family members of U.S. citizens. Special procedures were promulgated in 2012 for Yemeni family members because of the unreliability of documentation from Yemen. Plaintiffs alleged that the special procedures "are the result of a conspiracy between the Defendants—all members of former President Donald J. Trump’s administration, including former President Trump himself—to halt Yemeni Muslim immigration to the United States."  The court said in part:

Plaintiffs’ only specific factual allegations of animus or intentional discrimination evoke Islamophobic rhetoric in statements and actions attributable to former President Trump and his administration.... Those statements and actions do not specifically relate to the Yemen Guidance or the adjudication of Form I-130 petitions. Moreover, USCIS issued and implemented the Yemen Guidance in 2012, during the administration of former President Barack Obama and prior to any of the statements and actions that allegedly support Plaintiffs’ claims of discriminatory animus....

Plaintiffs claim that Defendants have violated the Establishment Clause of the First Amendment by subjecting Form I-130 petitions brought by and on behalf of Muslim individuals to higher burdens of proof than those petitions brought by or on behalf of non-Muslims....

To the extent that Form I-130 petitions on behalf of Yemeni beneficiaries are adjudicated differently than petitions on behalf of beneficiaries from other countries, Defendants have articulated a logical justification grounded in the unreliability of Yemen’s official processes for maintaining and issuing civil records. That justification is unrelated to matters of religious faith or affiliation, and it provides a rational explanation for the challenged policies and practices. Accordingly, Plaintiffs fail to state a claim under the Establishment Clause of the First Amendment.

USCIRF Reports On 10 Countries That Use Sharia To Justify Death Penalty For Same-Sex Relationships

This week, the U.S. Commission on International Religious Freedom issued a Fact Sheet on The Use of Shari’a as Religious Justification for Capital Punishment Against LGBTI Persons. It states in part:

There are 10 countries where consensual same-sex relationships are formally punishable by death, all of which justify denial of rights and personhood on official interpretations of Shari’a.

It lists those countries as: Iran, Saudi Arabia, Yemen, Nigeria, Somalia, Mauritania, United Arab Emirates, Qatar, Pakistan, Afghanistan.

Injunction Governing Competing Factions' Access To Church Building Upheld

In Yakob v. Kidist Mariam Ethiopian Orthodox Tewahedo Church, Inc., (GA App., March 16, 2021), a Georgia state appeals court, in a dispute between the church's administrative board and its former priest Abba Yakov (who also served as Archbishop over several churches), reversed the trial court's grant of an interlocutory injunction to compel attendance of board members at board meetings. It held that the interlocutory injunction altered the status quo.  However the court affirmed the trial court's interlocutory injunction that gave access to the two factions to conduct services at different times. The challenged portion of that injunction dealt with Yakob's role during the times that the opposing faction had access. It provided:

Defendant Yakob may attend the Church’s services as a parishioner, but he is prohibited from presiding over, controlling, or attempting to preside over or control the Church’s services in any way. Defendant Yakob may enjoy the Church’s services from the pew, but he may not enter areas of the Church’s sanctuary for which access to parishioners is prohibited and may not participate in those services in any role other than as a parishioner.

The court concluded: 

[T]he complaint addresses itself to matters outside of First Amendment jurisprudence, such as issues of Church property and board governance issues. Given the Church’s hybrid form of governance ..., those property and governance issues are capable of resolution by reference to neutral principles of law. Importantly, nothing in the April 2017 injunction relates to the propriety or validity of Yakob’s termination as priest, or his role as Archbishop.

Church's Appeal of Bank's Interpleader Is Dismissed

United Community Bank v. Wakefield Missionary Baptist Church,  (NC App., March 16, 2021), involves a dispute over who is entitled to bank accounts of Wakefield Missionary Baptist Church on deposit at United Community Bank. The Bank filed an interpleader action. The church trustees sought dismissal on the ground that the dispute was an ecclesiastical matter requiring determination of who is a church member, and their roles and authority. As recounted by the appeals court:

The trial court granted the Bank’s motion for interpleader and discharge, ordering the Bank to relinquish all of the disputed funds to the Clerk of Superior Court to be held until further orders. The Bank complied.

The court dismissed the appeal as interlocutory, saying in part:

The interlocutory order granting interpleader does not impair the Trustee Defendants’ ... rights because the issue of who has control over the Church’s assets with the Bank is the very thing yet to be decided at the trial court.... The proceeding does not interfere with the Trustee Defendants’ substantial right to be free from ecclesiastical entanglement because the trial court can resolve the controversy based on neutral principles of law.

Litigation Between Indian Tribes Over Burial Sites Dismissed On Sovereign Immunity Grounds

In Muscogee (Creek) Nation v. Poarch Band of Creek Indians, (MD AL, March 15, 2021), the Creek Nation-- an Indian tribe that was forced into Oklahoma in the 1830's from its original location in Alabama-- sued the Poarch Band of Creek Indians (PBCI) as well as federal officials over a casino and hotel which PCBI built on land in Alabama that contained ceremonial grounds and burial sites that once belonged to the Creek Nation. The court held that the claims against PCBI and its officials are barred because of sovereign immunity. Because the tribe or its officials are an indispensable party to the litigation, the other defendants were also dismissed. The court added:

A narrower suit seeking more limited relief--such as the return of the bodies and funerary objects buried at Hickory Ground to the descendants of the deceased--may not trigger the same sovereign interests that preclude this litigation from proceeding, particularly if such a suit were directed at specific tribal officials responsible for PBCI’s ongoing control of those bodies and artifacts.

Consent Decree Orders End To Village's Zoning Rules That Discriminate Against Orthodox Jewish Residents

Yesterday a New York federal district court in United States v. Village of Airmont, (SD NY, March 15, 2021), entered a consent decree requiring modification of the village's zoning code. A press release by the Department of Justice describes the order:

[The preliminary injunction mandates] that the Village... immediately cease enforcement of zoning code provisions enacted in 2018 that discriminate against Orthodox Jewish residents in violation of the Religious Land Use and Institutionalized Persons Act....  [T]he zoning code provisions at issue limit the amount of space in private homes that can be used as a Residential Place of Worship..., restrict whom residents are allowed to invite into their own homes to pray, and expand the use of an arbitrary, drawn-out application process designed to delay and effectively deny permits for even minor alterations to private houses.... [T]he Government presented evidence that the provisions had been motivated by discriminatory animus and served no legitimate governmental purpose....

3rd Circuit: State Legislators Have Immunity In Suit By Islamic Group Over Blocking Its Land Purchase

In HIRA Educational Services North America v. Augustine, (3d Cir., March 15, 2021), a consulting agency for Islamic educational groups sued, among others, three Pennsylvania state legislators for actions that prevented the agency from purchasing state land to use for a youth intervention center and Islamic boarding school. Plaintiffs claim that the legislators' actions were discriminatory and violated RLUIPA and the Pennsylvania Religious Freedom Protection Act. The legislators claimed absolute and qualified immunity as a defense.

Plaintiffs pointed to the following actions by defendants:

(1) introducing a resolution to divest [the Pennsylvania Department of General Services] of its authority to sell the property; (2) co-authoring a letter to Governor Wolf describing their concerns...; (4) making public statements against the sale....; (6) meeting with the Secretary of DGS to try to persuade him to halt the sale....

The court held that absolute legislative immunity extends to acts that are "quintessentially legislative" or are integral steps in the legislative process, such as offering resolutions, voting, conducting legislative investigations and writing committee reports, and concluded:

Vogel’s introduction of Senate Resolution 154 and Sainato and Bernstine’s presentation of it to the House were quintessentially legislative activities.... Absolute legislative immunity also applies to the Legislators’ letter to Governor Wolf and Bernstine’s calls to HIRA because both are examples of protected legislative factfinding....

In addition ..., HIRA claimed the Legislators made disparaging public comments about HIRA, met with the DGS Secretary in an attempt to get DGS to cancel the sale to HIRA, and gave preferential treatment to the subsequent purchaser of the property. These are most accurately described as political “errands” or “speeches delivered outside [of] Congress,” so the Legislators are not entitled to absolute immunity for those activities.... 

[However] qualified immunity shields officials from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 

HIRA’s claims against Vogel and Sainato fail because HIRA has not pointed to any precedential case prohibiting legislators from speaking against the sale of state-owned property or from extending preferential treatment to certain recipients of government contracts.

Scottish Parliament Passes Hate Crime Bill

According to BBC News, the Scottish Parliament last week passed the Hate Crime and Public Order (Scotland) Bill (full text). Among other things, the new law (§3(2)) outlaws threatening or abusive behavior or communications made with the intent to stir up hatred against a group based on its religion or perceived religious affiliation, or based on the group's sexual orientation or transgender identity. It goes on to provide (§9A), however,:

... [B]ehaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves or includes—

(a) discussion or criticism of matters relating to—(i) age, (ii) disability, (iii) sexual orientation, (iv) transgender identity,(v) variations in sex characteristics,

(b) discussion or criticism relating to, or expressions of antipathy, dislike, ridicule or insult towards— (i) religion, whether religions generally or a particular religion, (ii) religious beliefs or practices, whether religious beliefs or practices generally or a particular religious belief or practice, (iii) the position of not holding religious beliefs, whether religious beliefs generally or a particular religious belief,

(c) proselytising, or

(d) urging of persons to cease practising their religion.

The bill (§16) also abolishes the common law offense of blasphemy.

Recent Articles of Interest

From SSRN:

• Cecile Laborde, On the Parity between Secular and Religious Reasons, Social theory and Practice (2021).
• Adam Swift, Parents’ Rights, Children’s Religion: A Familial Relationship Goods Approach, (Journal of Practical Ethics, Vol. 8 No. 2, Dec 2020).
• Doug Magendanz, How Norms Interact: On Normative Plasticity, (March 6, 2021).
• Blaine Hutchison, Raymond J Lajeunesse, Jr., Bruce Cameron & Frank D. Garrison, Comments on EEOC Proposed Updates to Compliance Manual on Religious Discrimination,  (December 17, 2020).
• Alexander Lindvall, Forgive Me, Your Honor, For I Have Sinned: Limiting the Ecclesiastical Abstention Doctrine to Allow Suits for Defamation and Negligent Employment Practices, (South Carolina Law Review, Vol. 72, No. 1, 2020).
• Deborah Cantrell, Transformative Silence and Protest, (Rutgers Journal of Law & Religion, Forthcoming).
• Katie R. Eyer, The But-For Theory of Anti-Discrimination Law, (Virginia Law Review, Forthcoming).
• Amanda Harmon Cooley, The Powerful Problem of Prayer at Public School Board Meetings, (March 7, 2021).
• Reva B. Siegel, Why Restrict Abortion? Expanding the Frame on June Medical, (2020 Sup. Ct. Rev. (Forthcoming).
• Robert G. Schwemm, Fair Housing and the Causation Standard After Comcast, (Villanova Law Review, Vol. 66, No. No. 1, 2021).
• Shuai Chen & Jan van Ours, Mental Health Effects of Same-Sex Marriage Legalization, (Tinbergen Institute Discussion Paper 2021-003/V (2021)).

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

• Dimitry Gegenava, Legal and Social Status of the Georgian Orthodox Church: Challenges and Perspectives, (Teka Komisji Prawniczej PAN Oddział w Lublinie, t. XIII, 2020, nr 2).
• Cochav Elkayam-Levy, Re-Imagining the Rules – the Global Transition to Transformative Equality and the Narratives of Feminist Religious Movements, (December 31, 2020).
• Vincenzo Pacillo, The Role of Mario Piacentini and Mario Falco in the Drafting of the Italian Fascist Laws on Religious Minorities and Jewish Communities, Highlighting the Danger of Nationalism for the Freedom of Religion or Belief, (October 27, 2020).
• Warto Ahmad Saifuddin, Zainal Arif, Efri Syamsul Bahr & Zulfitria, Opportunities and Challenges of Halal Product Business Pasca COVID-19 in Indonesia, (November 10, 2020).
• Muhammad Sher Abbas, Honour Killings In Pakistan And Status Of Women In Islamic Law, (January 5, 2021).
• Faisal Kutty, In Search of the Elusive Middle Ground Between Blasphemy and Free Speech: From Defamation of Religion to Incitement to Hate, (August 5, 2020).

New Pressure On Baha'is In Iran Revealed

In a March 9 press release, the International Federation for Human Rights reported on a recently discovered set of minutes (full text in English translation) of a September 2020 meeting in the city of Sari, Iran of the Commission on Ethnicities, Sects and Religions. The minutes reflect decisions to increase pressure on Baha'is in the city.  A resolution adopted at the meeting provides in part:

To control the misguided movements of the subversive Baha’i sect, it was decided:

A- The intelligence, security and law enforcement community should conduct strict controls at the county level by monitoring their operations, the type of services provided to the networks and websites of enemies, private and public meetings, and their other activities....

B- Departments of Education in Districts 1 and 2 of Sari shall increase the level of alertness and awareness among school principals and educators on their handling of Baha’i students in order to win them to Islam.

Swiss Airline Settles Suit By Female Passenger Pressured To Move Seats

As reported this week by Live and Let's Fly, the Swiss airline easyJet has settled a lawsuit brought against it in an Israeli court by a woman passenger who, on a Tel Aviv to London flight, was pressured into moving her seat because a Haredi Jewish passenger refused for religious reasons to sit next to a woman. The airline said that pressuring the woman to move is inconsistent with it policies. [Thanks to Tom Rutledge for the lead.]

Texas Human Rights Act Bars LGBT Discrimination

In Tarrant County College District v. Sims, (TX App., March 10, 2021), a Texas state appellate court, in a 2-1 decision, held that the Texas Commission on Human Rights Act (TCHRA) should be read to prohibit discrimination on the basis of sexual orientation or gender identity. In the case, plaintiff, a community college employee, claimed that the college discriminated against her because she is a lesbian. The majority said in part:

In order to reconcile and conform the TCHRA with federal antidiscrimination and retaliation laws under Title VII, we conclude we must follow Bostock and read the TCHRA’s prohibition on discrimination “because of . . . sex” as prohibiting discrimination based on an individual’s status as a homosexual or transgender person. See Bostock, 140 S. Ct. at 1738–43; Chatha, 381 S.W.3d at 504–05.

The majority also refused to dismiss plaintiff's claims under the Texas constitution. 

Justice Schenck filed an opinion dissenting in part, contending that Bostock does not control the interpretation of the state anti-discrimination statute. Human Rights Campaign issued a press release on the decision.

British Court Upholds Convictions of Stonehenge Protesters

In Halcrow v. Crown Prosecution Service, (EWHC, March 10, 2021), the England and Wales High Court held that the religious freedom rights of pagan and Druid protesters at Stonehenge were not infringed when they were convicted of violating restrictions on entry to the stone circle in violation of provisions of the Ancient Monuments and Archaeological Areas Act 1979 and the Stonehenge Regulations. The court said in part:

[T]he removal of restrictions on access to the stone circle because the appellants turned up and wanted access to the stone circle to protest and exercise religious freedoms, would not strike a fair balance between the important rights of the individual appellants and the general interest of the community to see Stonehenge preserved for present and future generations. This is because it would have meant in practice that access to the stone circle would have had to be lifted as and when any person chose to walk into the stone circle, so long as they were protesting or exercising religious rights. Such access would inevitably have an adverse effect on Stonehenge to the detriment of current and future generations. Therefore the interference on the specific occasions with the appellants' rights under articles 9, 10 and 11 of the ECHR [European Convention on Human Rights] was justifiable and proportionate.

Law & Religion UK has more on the decision.

Mississippi Bans Transgender Women From Girls' and Women's Sports Teams

Yesterday Mississippi Governor Tate Reeves signed Senate Bill 2536 (full text) which prohibits women's or girl's athletic teams being open to transgender women.  The ban applies to any interscholastic or intramural athletic teams or sports that are sponsored by a public primary or secondary school or any school that is a member of the Mississippi High School Activities Association or public institution of higher education or any higher education institution that is a member of the NCAA, NAIA or NJCCA. According to an AP report, in the signing ceremony for the bill, Gov. Tate said in part:

But for the fact that President Biden as one of his first initiatives sat down and signed an executive order — which, in my opinion, encourages transgenderism amongst our young people — but for that fact, we wouldn't be here today.

Communications Decency Act Allows Video Hosting Site To Ban Conversion Therapy Promoter

In Domen v. Vimeo, Inc., (2d Cir., March 11, 2021), the U.S. 2nd Circuit Court of Appeals held that Section 230 of the federal  Communications Decency Act immunizes the video sharing platform Vimeo from a lawsuit alleging religious and sexual orientation discrimination under California law. The suit was filed by Church United and its founder after Vimeo deleted their account because plaintiffs had uploaded videos that promote sexual orientation change therapy. The court said in part:

A broad provision [in Section 230], subsection (c)(2) immunizes interactive computer service providers from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” 12 U.S.C § 230(c)(2). Notably, the provision explicitly provides protection for restricting access to content that providers “consider[] . . . objectionable,” ... granting significant subjective discretion.... Therefore, Vimeo is statutorily entitled to consider SOCE content objectionable and may restrict access to that content as it sees fit.

Bloomberg Equality reports on the decision.

California COVID Restrictions On Singing At Worship Services Upheld

In Calvary Chapel of Ukiahv. Newsom, (ED CA, March 10, 2021), a California federal district court refused to issue a preliminary injunction against California's COVID-19 restriction on indoor singing and chanting during worship services. The court rejected plaintiffs' free exercise, free speech, equal protection and Establishment Clause claims. The court said in part:

[T]he State has now issued protocols allowing those who serve as performers during church services, presumably including choir members or soloists, to sing indoors subject to masking and distancing. Under these newest rules, the State argues, “worship services are treated more favorably than the entertainment industry.” ... To the extent one might question whether churches were being treated equivalently to the entertainment industry, that doubt appears to have been eliminated beyond a shadow of a doubt.

Justice Department Announces Settlement of RLUIPA Suit Against New Jersey Town

The Department of Justice announced yesterday that it has filed a proposed consent decree reflecting an agreement with the Township of Toms River, New Jersey. If approved by the court the decree will settle a RLUIPA lawsuit that was filed against the Township:

The complaint alleges that since 2009, Toms River has enacted a series of revisions to its zoning code—including a ten-acre parcel minimum requirement—which greatly reduced both the number of zoning districts in which houses of worship can locate and the number of sites available for houses of worship. These restrictions have had a particular impact on the Township’s Orthodox Jewish population, who, because of their faith and religious traditions, tend to worship at small houses of worship which they walk to and from on the Sabbath and holidays.....

As part of the consent decree, the Township will revise its zoning code to: reduce the minimum acreage required for a house of worship ... to two acres; allow houses of worship as-of-right in certain zoning districts; allow smaller houses of worship to be located on minor collector roads; and treat houses of worship on comparable terms to nonreligious places of assembly....