6th Circuit: RLUIPA Requires More Than Vegan Sabbath And Holiday Meals For Jewish Inmates

In Ackerman v. Washington, (6th Cir., Oct. 12, 2021), the U.S. 6th Circuit Court of Appeals held that Michigan Department of Corrections universal religious meal plan is inadequate to meet the religious needs of Jewish prisoners. The court summarized its holding:

The Michigan Department of Corrections serves a universal religious diet to all prisoners with religious dietary needs. It created this meal plan to avoid forcing prisoners to eat foods that violate their sincere religious beliefs. And because some religious beliefs forbid eating animal products, the universal religious meals are vegan. Because other prisoners require kosher food, the vegan meal is also kosher.

Gerald Ackerman and Mark Shaykin are Jewish prisoners confined in MDOC facilities. Their religious beliefs require them to eat a meal with kosher meat and a meal with dairy on the Jewish Sabbath and four Jewish holidays. They also believe that they must eat cheesecake on the holiday of Shavuot to celebrate the holiday properly. So they claim that MDOC policies that force them to eat vegan meals on these days substantially burden their sincere religious beliefs. And they argue that the MDOC needs to accommodate their beliefs under the Religious Land Use and Institutionalized Persons Act (RLUIPA). We agree and affirm the district court’s judgment in the prisoners’ favor.

Law & Crime reports on the decision.

New York Enjoined Over Elimination of Religious Exemptions In Vaccine Mandate

In Dr. A v. Hochul, (ND NY, Oct. 12, 2021), a New York federal district court issued a preliminary injunction to health care workers who object to the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID. The court concluded that the absence of an exemption conflicts with the anti-discrimination provisions of Title VII and with the Free Exercise clause.  The court said in part:

What matters here is not whether a religious practitioner would win or lose a future Title VII lawsuit. What matters is that plaintiffs’ current showing establishes that § 2.61 has effectively foreclosed the pathway to seeking a religious accommodation that is guaranteed under Title VII.....

The court also concluded that the law is neither neutral nor generally applicable. The state's original vaccine mandate included both medical and religious exemptions. Subsequently religious exemptions were eliminated. The court said in part:

This intentional change in language is the kind of “religious gerrymander” that triggers heightened scrutiny.

The court had previously issued a temporary restraining order in the case. (See prior posting.) Liberty Counsel issued a press release announcing the decision. AP reports on the decision.

 

Wyoming Supreme Court Rejects Nun's Claim That She Was Engaged In Ritual Of Mortification

In ASM v. State of Wyoming, (WY Sup. Ct., Oct. 12, 2021), the Wyoming Supreme Court rejected appellant's claim that the state violated her free exercise rights when it ordered her involuntary hospitalization after she began injuring herself while in detention on arson charges. Appellant (ASM) claimed that she is a Catholic nun and that she was engaged in the Catholic ritual of mortification when she scratched skin off her face. According to the Court, the psychiatrist who examined ASM explained her conduct in part as follows:

Dr. Schaaf was aware of ASM’s religious beliefs but believed that she “engage[d] [in] and promote[d] religious beliefs as a way to manipulate others around her.” He was also aware of some form of self-chastisement in Catholicism, but opined that it did not fit the way ASM chose to self harm.... Further, ASM’s self-harming behaviors correlated with many occasions when she contacted police officers to report being assaulted when she had in fact been hitting herself. He explained that “at some level [ASM] engage[d] in self[-]harm behaviors not as a way to express herself in a spiritual sense but to again manipulate.” That manipulation was due to her personality disorder.

The Court concluded:

... [E]ven assuming ASM held a sincere religious belief about the Catholic ritual of mortification, she failed to establish that she was engaged in such practice when she injured herself in the detention facility.

Supreme Court Hears Arguments Today On State AG's Intervention To Defend Abortion Law [UPDATED]

Today the U.S. Supreme Court hears oral arguments in Cameron v. EMW Women’s Surgical Center. In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision (full text of decision) refused to allow the state attorney general to intervene to defend the constitutionality of a Kentucky statute which banned D&E abortions prior to fetal demise. The AG sought to intervene after the 6th Circuit held the statute unconstitutional and no state official would seek a rehearing or an appeal. The Supreme Court's grant of review was limited to the question of whether intervention should have been allowed. SCOTUSblog has a preview of today's arguments. The arguments will be streamed live on C-SPAN at 10:00 a.m. EST. The SCOTUSblog case page has links to all the filings in the case. When a transcript and recordings of the arguments become available, I will update this post with links to them.

UPDATE: Here are links to the transcript and audio of the oral arguments. CNBC reports extensively on the oral arguments in an article titled Supreme Court signals it will side with Kentucky attorney general in bid to defend restrictive abortion law.

Israeli Court On Appeal Upholds Ban On Jewish Prayer On Temple Mount

In Israel last Friday, a Jerusalem district court reversed a Magistrate Court's decision that would have allowed Jews to pray on the Temple Mount. The appeals court heeded concerns by Israeli authorities that allowing Jewish prayer there could lead to violence that could endanger national security. As reported by Haaretz:

The earlier ruling by the Jerusalem Magistrate’s Court concerned a Jewish man, Arye Lipo, who was barred from the Temple Mount for 15 days after the police caught him quietly praying there. The court rescinded the ban, ruling that the man, “like many others, prays on a daily basis on the Temple Mount.”...

Under an unofficial understanding, Jews are allowed to visit but not pray on the Mount, which is known to Muslims as the Haram al-Sharif, or the Noble Sanctuary. Although the police enforce this, recent months have seen a loosening of the status quo, with more Jews praying in the compound individually and even in groups.

Noting that Lipo prayed “quietly” and privately, the magistrate's court said that “this activity by itself is not enough to violate the police’s instructions.”...

Hamas spokesman Abdel Latif al-Qanua called the decision "blatant aggression against the Al-Aqsa Mosque and a declaration of war...."

Biden Picks Former Indiana Senator As Ambassador To Vatican

Last Friday, the White House announced that President Biden will nominate former Indiana senator Joseph Donnelley as Ambassador Extraordinary and Plenipotentiary to the Holy See. Indianapolis Star reported on the nomination. Donnelley has also been a faculty member at Notre Dame and is presently a partner at the law firm of Aiken Gump.

Recent Articles of Interest

 From SSRN:

• Saud M. Alholiby & Zakaria A. Almulhim, From the Lack to the Requirement: The Public Consultation Reform in Saudi Arabia,  (UCLA Journal of Islamic and Near Eastern Law, Forthcoming).
• Mark Movsesian, Law, Religion, and the COVID Crisis, (Journal of Law and Religion, Forthcoming).
• Scott W. Gaylord, Roe as Potemkin Village: Fallacies, Facades, and Stare Decisis (September 17, 2021).
• Jean-Francois Achille, 'Unnecessary Cruelty': Freedom of Religion and the Humane Slaughter Act (May 15, 2021).
• David R. Stras, What My Grandparents’ Experiences in the Holocaust Taught Me About the First Amendment, (NYU Journal of Law & Liberty, Forthcoming).
• Moorthy S. Muthuswamy, Does Sharia Act as both a Mediator and Moderator in Salafi Radicalism?, (August 29, 2021).

New Journal

• The Inaugural Issue of the Australian Journal of Law & Religion is now being developed.

From SmartCILP:

• Richard S. Myers, The Significance of Trinity Lutheran, 17 Ave Maria Law Review 1-17 (2019).
• John C. Eastman, "Religiously Scrupulous"': Freedom of Conscience at the Founding, 17 Ave Maria Law Review 18-34 (2019).
• Massimo Campanini & Mohamed 'Arafa, Islam and Democracy: Appreciating the Nuance and Complexity of Legal Systems with a Basis in Religion, 26 Barry Law Review 1-30 (2020).
• Volume 5, Buddhism Law & Society (2019-20).

5th Circuit Issues Narrow Stay Of Injunction Against Texas "Heartbeat" Abortion Law

As has been widely reported (CNN), the U.S. 5th Circuit Court of Appeals early today in United States v. State of Texas, (5th Cir. Oct. 9, 2021) temporarily lifted the Texas federal district court's preliminary injunction against enforcement of Texas S.B. 8, the state's "heartbeat" abortion ban that is enforced solely through private civil actions for statutory damages. An appeal was filed by Texas and by three intervenors who planned to sue under the new law. In its motion (full text) filed yesterday, Texas said:

The State respectfully requests an emergency stay pending appeal ...  and an administrative stay as soon as possible to prevent it from being held in contempt for the actions of third parties it cannot and does not control.

In its motion, Texas argued in part:

[S]tate court clerks are now enjoined from “accepting,” “docketing,” or “maintaining” any S.B. 8 case, ... but “[t]he longstanding rule in Texas is that an instrument is deemed in law filed at the time it is left with the clerk, regardless of whether or not” a clerk adds “a file mark.”... Thus, an S.B. 8 suit “is ‘filed’ when it is tendered to the clerk,” regardless of the clerk’s actions.... Once such a suit is filed, clerks can be accused of “accepting,” “docketing,” and “maintaining” it, especially given the district court’s failure to define the terms it used. Put simply, there is no way for the State to ensure compliance with this injunction and avoid contempt proceedings.

In its decision today, the 5th Circuit apparently focused on this narrow concern. Its order provides:

IT IS ORDERED that Intervenors’ emergency motion to stay the preliminary injunction pending appeal is temporarily held in abeyance pending further order by this motions panel. Appellee is directed to respond to the emergency motion by 5 pm on Tuesday, October 12, 2021.

IT IS ORDERED that Intervenors’ motion for a temporary administrative stay pending the court’s consideration of the emergency motion is GRANTED.

Canadian Court Says Tai Chi Institute Is A Religious Institution

In Fung Loy Kok Taoism Institute v. City of Montreal, (Quebec Super. Ct., Sept. 20, 2021), a Canadian trial court in Quebec held that a Taoist Tai chi Institute is entitled to an exemption from property, municipal and school taxes. The court's 50-page opinion includes a lengthy discussion of what constitutes a "religion". Summarizing its ultimate conclusion on the tax issues, the court says in part:

These ... requests ... raise two major questions: what is a religion? What is a religious institution?....

... [S]hould Taoist Tai chi , as practiced, taught and disseminated in Canada by the Chinese monk Moy Lin-Shin ("master Moy"), be regarded as a religion in its own right rather than for proper gymnastics to promote internal balance and health?

... The Fung Loy Kok Institute of Taoism ... which offers classes or sessions of tai chi for a monetary contribution from the participants, does it qualify as a religious institution within the meaning of the law allowing it to benefit in Quebec from an exemption from property taxes? ...

At the end of its analysis, the Tribunal comes to the conclusion that both the first and the second of these two questions must be answered in the affirmative.

Windsor Star reports on the decision.

Police Officer Who Prayed Outside Abortion Clinic Sues Over Suspension From Duty

An officer in the Louisville, Kentucky police department this week filed suit in a Kentucky federal district court seeking damages for the Department's four-month suspension of him. The suspension was in effect during an extended investigation of the officer's praying outside an abortion clinic while in uniform, but before he went on duty for the day. He was ultimately cleared of any violation of rules.  The complaint (full text) in Schrenger v. Shields, (WD KY, filed 10/4/2021) alleges violations of the 1st and 14th amendments as well as of Title VII, and state civil rights laws. It also alleges a claim for intentional infliction of emotional distress. WDRB News, reporting on the lawsuit, says:

EMW staff said the officer intimidated patients and medical staff while wearing his uniform and gun.

Surveillance video from the clinic showed Schrenger in a marked police cruiser. He marched outside of the clinic for approximately 45 minutes, at one point holding a sign that read "pray to end abortion."

6th Circuit: Christian Student Athletes Wrongly Denied Exemption From COVID Vaccine Mandate

In Dahl v. Board of Trustees of Western Michigan University, (6th Cir., Oct. 7, 2021), the U.S. 6th Circuit Court of Appeals upheld, pending appeal, a district court's injunction barring Western Michigan University from enforcing its COVID vaccine mandate against 16 Christian student athletes who had applied for religious exemptions. The university requires student athletes to be vaccinated, but provides for medical and religious exemptions. Plaintiffs here however were denied a religious exemption. The court said in part:

[W]here a state extends discretionary exemptions to a policy, it must grant exemptions for cases of “religious hardship” or present compelling reasons not to do so....

True, the University did maintain plaintiffs’ athletic scholarships and did not formally dismiss them from their teams. But that is not the same thing as granting an exception from the University’s policy of conditioning “full involvement in the athletic department” on vaccination status. After all, the purported exception plaintiffs received did not allow them to play college sports. Yet playing on the team (and not just receiving a scholarship) is their goal, a point the University itself recognized....

Because the University’s policy is not neutral and generally applicable, we analyze the policy through the lens of what has come to be known as “strict scrutiny.” ... The University’s interest in fighting COVID-19 is compelling..... But the University falters on the narrow tailoring prong. For one, public health measures are not narrowly tailored if they allow similar conduct that “create[s] a more serious health risk.”... That is the case at the University, which allows non-athletes—the vast majority of its students—to remain unvaccinated. One need not be a public health expert to recognize that the likelihood that a student-athlete contracts COVID-19 from an unvaccinated non-athlete with whom she lives, studies, works, exercises, socializes, or dines may well meet or exceed that of the athlete contracting the virus from a plaintiff who obtains a religious exemption to participate in team activities....

Fox2Detroit reports on the decision.

Woman Required To Remove Hijab Loses Suit Against Security Guard and County

In Niblett v. Universal Protection Service, LP, (CD CA, Oct. 5, 2021), a California federal district court dismissed a damage action by a Muslim woman who was required by a security guard to remove her hijab in order to enter Los Angeles County's Department of Public Social Services building. The court dismissed on qualified immunity grounds the suit against the security guard and his employer that were hired to provide security for the county building, saying in part:

Assuming that Rodriguez and UPS were acting under color of state law when they exercised their authority to control access to a County building, which the Court does not decide, Plaintiff has not alleged a violation of any clearly established First Amendment right. Plaintiff ... cites no authority whatsoever holding that requiring someone to remove a hijab to pass through a metal detector violates the First Amendment.

Plaintiff's suit against the County was dismissed for failure to show a policy or practice of constitutional violations, saying in part:

Plaintiff does not allege that before her encounter with Rodriguez any County employee or agent had ever forced a Muslim woman to remove her hijab in any context, much less that County employees and agents had a widespread practice of requiring Muslim women to remove their hijabs in order to pass through security screenings at County buildings. Similarly, she does not allege facts suggesting that the County knew of such a practice and endorsed it or had reason to know further training was required about allowing hijabs to be worn through metal detectors.

Federal District Court Enjoins Texas' Controversial "Heartbeat" Abortion Ban

In United States v. State of Texas, (WD TX, Oct. 6, 2021), a Texas federal district court in a 113-page decision, preliminarily enjoined enforcement of Texas S.B. 8, the state's "heartbeat" abortion ban that is enforced solely through private civil actions for statutory damages. In another case, the U.S. Supreme Court last month refused to prevent the Texas law from going into effect while its constitutionality was being litigated. Today's decision comes in a lawsuit filed by the U.S. Department of Justice. In it, the court explores at length the standing and redressability issues that have been seen as impediments to courts' reviewing the law that effectively bans almost all abortions after six weeks of gestation.  The court said in part:

A person’s right under the Constitution to choose to obtain an abortion prior to fetal viability is well established. With full knowledge that depriving its citizens of this right by direct state action would be flagrantly unconstitutional, the State contrived an unprecedented and transparent statutory scheme whereby it created a private cause of action in which private citizens with no personal interest in or connection to a person seeking an abortion would be able to interfere with that right using the state’s judicial system, judges, and court officials.....

This Court finds that S.B. 8 concretely injures the United States by prohibiting federal personnel and contractors from carrying out their obligations to provide abortion-related services and subjecting federal employees and contractors to civil liability for aiding and abetting the performance of an abortion....

The next question is whether the United States suffers an injury-in-fact such that it has standing to challenge a potential violation of Constitutional rights that not only impacts federal agencies, but the public at large.... The United States has standing to file suit in parens patriae for probable violations of its citizens’ Constitutional rights.... [W]hen, as here, a state appears to deprive individuals of their constitutional rights by adopting a scheme designed to evade federal judicial review, the United States possesses sovereign interest in preventing such a harm. This interest is sufficient to establish a particularized injury....

... [I]n the alternative, ... the concepts underpinning In Re Debs and its progeny likewise establish a particularized injury to sovereign interests of the United States.... Debs supports standing where the government’s interest is preventing harms to “the general welfare” and the “public at large."... 

However, this Court notes that were Debs’s progeny to be read narrowly to support standing only in cases involving interstate commerce, the United States has likewise demonstrated an interest sufficient to establish standing..... By extending liability to persons anywhere in the country, S.B. 8’s structure all but ensures that it will implicate commerce across state lines.... In addition to imposing liability on those coming into Texas, the law has also already had the effect of pushing individuals seeking abortions into other states.... This stream of individuals across state lines burdens clinics in nearby states and impedes pregnant individuals in surrounding states from accessing abortions due to backlogs.....

[T]he State’s scheme to disguise its enforcement role and disclaim accountability collapses upon cursory inspection. The State enacted S.B. 8 and created a private enforcement scheme that clothes private individuals with the State’s enforcement power.... That delegation alone would have been sufficient to show state action. The practical operation of an S.B. 8 lawsuit in Texas courts deepens the State’s enforcement role.... [T]he State plays a role at every step of an S.B. 8’s lifecycle in Texas courts. A private cause of action enforcement scheme is meaningless without state action.... An injunction properly runs against the State....

... [T]he State has intentionally crafted a statute to employ private citizens as its proxy. Put simply, the State’s participation in enforcing S.B. 8 lawsuits amounts to actionable state action....

... [P]rivate individuals enforcing S.B. 8 are properly regarded as state actors.... The private individuals who bring S.B. 8 lawsuits are [also] in active concert with the State to enforce S.B. 8....

IT IS ORDERED that the State of Texas, including its officers, officials, agents, employees, and any other persons or entities acting on its behalf, are preliminarily enjoined from enforcing Texas Health and Safety Code §§ 171.201–.212, including accepting or docketing, maintaining, hearing, resolving, awarding damages in, enforcing judgments in, enforcing any administrative penalties in, and administering any lawsuit brought pursuant to the Texas Health and Safety Code §§171.201–.212. For clarity, this Court preliminarily enjoins state court judges and state court clerks who have the power to enforce or administer Texas Health and Safety Code §§171.201– .212.

As set out above, this Court has the authority to enjoin the private individuals who act on behalf of the State or act in active concert with the State.... However, the Court need not craft an injunction that runs to the future actions of private individuals per se, but, given the scope of the injunctions discussed here and supported by law, those private individuals’ actions are proscribed to the extent their attempts to bring a civil action ... would necessitate state action that is now prohibited.

IT IS ORDERED that the State of Texas must publish this preliminary injunction on all of its public-facing court websites with a visible, easy-to-understand instruction to the public that S.B. 8 lawsuits will not be accepted by Texas courts.....

CNN reports on today's decision and notes that quickly after the decision, Texas filed a notice of appeal to the 5th Circuit.

French Commission Reports On History Of Sexual Abuse In Catholic Church

As reported by CNN, France's Independent Commission on Sexual Abuse in the Church (CIASE) yesterday filed its final report:

Members of the Catholic clergy in France sexually abused an estimated 216,000 minors over the past seven decades, according to a damning report published Tuesday that said the Church had prioritized the protection of the institution over victims who were urged to stay silent.

The number of abused minors rises to an estimated 330,000 when including victims of people who were not clergy but had other links to the Church, such as Catholic schools and youth programs. Between 2,900 and 3,200 abusers were estimated to have worked in the French Catholic Church between 1950 and 2020, out of a total of 115,000 priests and other clerics, the report found.

An English language 32-page summary (full text) of the Final Report is available online. It includes 45 recommendations to prevent future abuse, Links to the full text in French of the Final Report, Testimony and other documents are available here.

Trial Court Bars Some, Allows Other Oklahoma Abortion Restrictions

An Oklahoma state trial court judge yesterday, in a ruling from the bench in Oklahoma Call for Reproductive Justice v. O'Connor, (OK Dist. Ct., Oct. 4, 2021) (full text of complaint), issued a temporary restraining order barring enforcement of some of Oklahoma's new abortion restrictions, but denying a TRO as to other provisions. According to a press release from Center for Reproductive Rights:

The laws blocked by today’s ruling include: a total abortion ban declaring that providing abortion at any stage in pregnancy qualifies as “unprofessional conduct” by physicians; and a law banning abortion as early as six weeks into pregnancy, before many people even know they are pregnant. The state conceded that these laws are unconstitutional under Roe v. Wade.

However the court refused to enjoin provisions that would require doctors performing abortions to be board-certified OB/GYNs; and various restrictions on medication abortions, including an admitting privilege requirement and and ultrasound requirement.

HHS Reverses Trump Administration Rules For Family Planning Grantees

The Department of Health and Human Services yesterday revoked the Trump Administration rules that prohibit family planning clinics receiving Title X funds from making referrals for abortions and which require strict physical and financial separation between abortion services and services funded by Title X monies. The HHS 124-page rule release (full text) titled Ensuring Access to Equitable, Affordable, Client-Centered, Quality Family Planning Services reinstates pre-2019 requirements, saying in part:

In addition to readopting the requirements as they existed prior to the 2019 rule, the 2021 rule also includes several revisions that will strengthen the Title X program and ensure access to equitable, affordable, client-centered, quality family planning services for all clients, especially for low-income clients, while retaining the longstanding prohibition on directly promoting or performing abortion that follows from Section 1008’s text and subsequent appropriations enactments.

The new rules require that grantees offer the opportunity for clients to receive non-directive counseling on the range of options available-- pre-natal care and delivery; infant care, foster care or adoption; and pregnancy termination. However "objecting individuals and grantees will not be required to counsel or refer for abortions in the Title X program in accordance with applicable federal law."

The new rules become effective on Nov. 6. AP reports on the new rules. Planned Parenthood issued a press release regarding the new rules.

Cert. Denied In COVID, Chaplaincy and Abortion Cases

Today the U.S. Supreme Court issued its lengthy (66-page) first-day-of-the-Term Order List denying review in several hundred cases. It includes the denial of certiorari in the following:

Calvary Chapel of Bangor v. Mills (Docket No. 20-1346): In the case, the 1st Circuit Court of Appeals dismissed a church's interlocutory appeal challenging the Maine governor's COVID Orders limiting attendance at faith-based events. (See prior posting.)

Chaplaincy of Full Gospel v. Department of Navy (Docket No. 20-1794): A case in litigation for over 20 years involving allegations by non-liturgical Protestant chaplains of discrimination against them by selection boards that control promotions and early retirements of Navy chaplains. (See prior posting.)

Schmitt v. Planned Parenthood (Docket No. 21-3): A challenge to Missouri  HB 126 imposing Down Syndrome and Gestational Age limits on abortions. The Supreme Court noted: "After this petition was filed, the United States Court of Appeals for the Eighth Circuit withdrew the panel opinion from which the petition sought certiorari. Accordingly, given the absence of any opinion for our review at this time, the petition is denied  without prejudice to the filing of a new petition by either party following the Eighth Circuit’s final disposition of the case."

Recent Articles of Interest

From SSRN:

• Sahar F. Aziz, Reflections on Security, Race, and Rights Twenty Years After 9/11, (12 J. Nat'l Sec. L. & Pol. 135 (2021)).
• Carl H. Esbeck, An Extended Essay on Church Autonomy, (22 Federalist Society Review 244 (2021)).
• Richard W. Garnett & Mitchell Koppinger, Tandon v. Newsome, South Bay Pentecostal, & Roman Catholic Diocese of Brooklyn on Religious Liberty and the Pandemic, (Ch. 13, M. Marietta, ed., SCOTUS 2021: Major Decisions and Developments of the U.S. Supreme Court (Forthcoming 2021)).
• Nausica Palazzo, Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships, (Columbia Journal of Gender and Law, Forthcoming).
• Duncan Kennedy, Consciousness, Doctrine, and Politics in the History of American Family Law, (February 2, 2020).

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

• Robert C. Blitt, Russia’s 2020 Constitutional Amendments and the Entrenchment of the Moscow Patriarchate as a Lever of Foreign Policy Soft Power, (Peter Mandaville (ed.), The Geopolitics of Religious Soft Power: How States Use Religion in Foreign Policy, Oxford University Press, Forthcoming 2022).
• Thomas McMahon, Canada Needs the Every Child Matters Act: What Needs to Be in the Act, (September 30, 2021).
• Saud Alholiby & Zakaria A. Almulhim, From the Lack to the Requirement: The Public Consultation Reform in Saudi Arabia, (UCLA Journal of Islamic and Near Eastern Law, Forthcoming).
• Christian Bjørnskov, Stefan Voigt & Mahdi Khesali,   Unconstitutional States of Emergency, (August 30, 2021).

From SmartCILP:

• Fatemah AlBader, Cultural Oppression Disguised as Religious Obligation: A Fatal Misrepresentation to the Advancement of Muslim Women's Rights in the Context of the So-Called Honor Killings, 24 Asian Pacific American Law Journal 1-16 (2020).
• Stephanie Hennette-Vauchez, Religious Neutrality, Laicite and Colorblindness: A Comparative Analysis, 42 Cardozo Law Review 539-596 (2021).
• Mark Strasser, Conscience Clauses and the Placement of Children: Introduction, 15 Journal of Law & Family Studies 1-18 (2013).

Kentucky Governor Has Qualified Immunity From Church's Damage Suit Over COVID Orders

In Pleasant View Baptist Church v. Beshear, (ED KY, Sept. 30, 2021), a Kentucky federal district court held that Kentucky's governor has qualified immunity from a damage action against him brought by a church that objected to his COVID Orders that temporarily suspended in-person classes in public and private schools. Plaintiff sought compensatory and punitive damages. The court said in part:

After examining the applicable precedent, particularly in light of a global pandemic, Pleasant View cannot demonstrate that Governor Beshear’s issuance of Executive Order 2020-969 violated a clearly established constitutional right, and qualified immunity will be granted on that basis. In fact, courts across the country have addressed qualified immunity for government officials at the 12(b)(6) stage regarding Covid-19 measures and found government officials to be immune from suit in their personal capacities.

The court found that plaintiff's claims for declaratory relief are moot.

Rhode Island Vaccine Mandate, Silent On Religious Exemptions, Is Upheld

In Dr. T v. Alexander-Scott, (D RI, Sept. 30, 2021), a Rhode Island federal district court refused to issue a temporary restraining order to prevent enforcement of a Rhode Island Department of Health Emergency Regulation that requires all healthcare workers (except if medically exempt) to be vaccinated against COVID-19. Plaintiffs challenge the absence of a provision for religious exemptions.  Rejecting plaintiffs' 1st Amendment challenge, the court held that the regulation is a neutral law of general applicability. Responding to plaintiffs' claim that the Regulation is in conflict with Title VII, the court said in part:

Nothing in the language [of the Regulation] prevents any employer from providing a reasonable accommodation to an employee who seeks one in accord with their sincerely held religious beliefs. Indeed, the Regulation is silent on the issue of religious exemptions. Title VII requires employers to accommodate religious beliefs, practices, or observances only to the extent that doing so would not impose “undue hardship” on the employer.... While the Regulation may make it more difficult for employers to accommodate religious objections; it does not create a “physical impossibility.”