Oklahoma AG Sues To Invalidate Biden's Vaccine Mandate For Federal Employees

Oklahoma's Attorney General and its Governor, along with 16 Oklahoma Air National Guard members, have sued to invalidate President Biden's Executive Order requiring COVID-19 vaccination for all federal employees. The complaint (full text) in State of Oklahoma v. Biden, (WD OK, filed 12/2/2021), contends that the mandate violates various provisions of the Constitution and federal law, including the Free Exercise Clause:

The vaccine mandate is undermining the sincerely held religious beliefs of Oklahoma residents and at least some individual Plaintiffs. This mandate is not a law of  general applicability because it contains exemptions that almost certainly will be unavailable to some individual Plaintiffs. Specifically, although EO 14043 does not even discuss religious exemptions, the SFWTF says only that a religious exemption might apply.... It adds: “Determining whether an exception is legally required will include consideration of factors such as the basis for the claim; the nature of the employee’s job responsibilities; and the reasonably foreseeable effects on the agency’s operations, including protecting other agency employees and the public from COVID-19.” Id. This non-committal and uncertain language gives Plaintiffs no assurance whatsoever.

The Oklahoma Attorney General issued a press release announcing the filing of the lawsuit.

Religious Child Placement Agency Challenges HHS Non-Discrimination Regulations

Suit was filed yesterday against the U.S. Department of Health and Human Services in a Tennessee federal district court by a religious child welfare agency that offers residential and foster care services for abused and neglected children. The suit challenges an HHS regulation that prohibits foster care and adoption programs receiving federal funds from discriminating on the basis of religion, sex, sexual orientation, gender identity or same-sex marriage status. The regulation expands upon the statutory prohibition on discrimination in such programs on the basis of race, color or national origin. The complaint (full text) in Holston United Methodist Home for Children v. Becerra,(ED TN. filed 12/2/2021), alleges that the regulation exceeds the federal agency's authority and that it violates RFRA and various 1st Amendment rights. The complaint alleges in part:

28. It would substantially burden Holston Home’s exercise of its religious beliefs to knowingly engage in child placing activities in connection with persons that do not agree with its Christian statement of faith and beliefs....

30. It would substantially burden Holston Home’s exercise of its religious beliefs to knowingly engage in child placing activities in connection with couples who may be romantically cohabitating but not married, or who are couples of the same biological sex.

The Trump Administration had issued waivers of the rule for faith-based agencies, but those waivers were rescinded by the Biden Administration last month. (See prior posting). ADF issued a press release announcing the filing of the lawsuit.

White House Hosts Hanukkah Celebration

CNN Reports on yesterday's Hanukkah celebration at the White House, saying in part:

The first and second families held a menorah lighting ceremony to celebrate Hanukkah at the White House on Wednesday evening, marking the first time the holiday has been celebrated at 1600 Pennsylvania Avenue with the Jewish spouse of a president or vice president.

"This is a White House tradition, but for the first time in history it is a family tradition," President Joe Biden said during the event in the East Room. He said the White House was honored to have second gentleman Doug Emhoff, who is Jewish, leading the lighting.

Here is a video of the 30 minute ceremony, via PBS.  The Forward has background on Hanukkah celebrations at the White House.

Suits In Delaware Seek Bans On Future Emergency Orders Affecting Worship Activities

Two similar lawsuits were filed yesterday in a Delaware state trial court seeking to prevent any future pandemic or other emergency declarations from placing limits on gatherings for religious worship.  The complaints in Hines v. Carney, (DE Ch., filed 12/1/2021) (full text) and Landow v. Carney, (DE Ch., filed 12/1/2021) (full text), citing state and federal constitutional protections, seek injunctions to prohibit

(1) any shutdown Order prohibiting Sunday or weekday assembly for religious worship or setting any attendance limit of 10 or more on the number of persons permitted to worship; (2) any shutdown or subsequent Orders preventing or directing how speech, preaching and teaching from the pulpit is to occur; (3) any shutdown or subsequent Orders prohibiting speech through singing in worship of God, individually or as a group; (4) any shutdown or subsequent Orders prohibiting assembly of worshipers based on age or any other personal characteristics such as health, wealth, race, gender, or other physical or emotional characteristic; (5) any Orders prohibiting Baptism or directing how the ritual is to be conducted; (6) any Orders prohibiting the Lord’s Supper or directing how the ritual is to be conducted; and (7) expressing preferences or favoritism for the practices of one religion over another.

WDEL News reports on the lawsuits.

Oral Arguments In Supreme Court On Mississippi Abortion Case

Here are links to the transcript and audio of oral arguments this morning in Dobbs v. Jackson Women’s Health Organization, a challenge to the Mississippi law which bars most abortions after 15 weeks of gestation. CNN reports on the arguments.

Supreme Court Denies Injunction Pending Appeal Of Case On Vaccine Mandate Exemptions

On Monday, the U.S. Supreme Court in Together Employees v. Mass General Brigham Inc. through an Order by Justice Breyer denied an Emergency Application for an injunction pending appeal to the 1st Circuit of a district court decision. At issue is the denial to eight employees of religious or medical exemptions from a health care system's COVID vaccine mandate.  The 1st Circuit in an Opinion handed down Nov. 18 had previously denied an injunction pending appeal. Boston Globe reports on the case.

Supreme Court Will Hear Arguments Wednesday In Term's Major Abortion Case

Tomorrow morning, the U.S. Supreme Court will hear arguments in Dobbs v. Jackson Women’s Health Organization, a challenge to the Mississippi law which bars most abortions after 15 weeks of gestation. In the case, the U.S. 5th Circuit Court of Appeals struck down the statute. (See prior posting.) In granting certiorari, the Supreme Court limited the question on review to: "Whether all pre-viability prohibitions on elective abortions are unconstitutional." Mississippi's brief in the case starkly lay out the major issue, contending: "Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition."

Amy Howe at SCOTUSblog has a preview of the arguments. The SCOTUSblog case page has links to the vast number of amicus briefs and other filings in the case. The oral arguments will be streamed live at this link when the Court convenes at 10:00 AM Eastern Time on Wednesday.

9th Circuit Enjoins School District Vaccine Mandate Pending Appeal

In an Order in John Doe v. San Diego Unified School District, (9th Cir., Nov. 28, 2021), the U.S. 9th Circuit Court of Appeals enjoined, pending appeal, the San Diego school district's COVID vaccine mandate which, while allowing certain medical exemptions, does not provide for religious exemptions for students. Judges Berzon and Bennett said the injunction would be removed if the school district removed its "per se" deferral option for pregnant students.  Judge Ikuta, in a partial dissent, said:

I would keep the injunction in effect until the ... School District ceases to treat any students (not just pregnant students) seeking relief from the vaccination mandate for secular reasons more favorably than students seeking relief for religious reasons, because any unvaccinated student attending in-person classes poses the same risk to the school district’s interest in ensuring a safe school environment

The court said that written opinions explaining the order "will follow shortly." California Globe reports on the decision.

New York City Educators' COVID Mandate Falters On Religious Exemption Procedures

In Kane v. De Blasio, (2d Cir., Nov. 28, 2021), the U.S. 2nd Circuit Court of Appeals held that New York City's COVID vaccine mandate for school teachers and administrators is not facially unconstitutional under the 1st Amendment because it is a neutral law of general applicability. However the court held that the process-- determined by an arbitrator-- for deciding whether a person is entitled to a religious exemption is unconstitutional:

The Accommodation Standards allowed employees to request a religious accommodation by submitting a request that is “documented in writing by a religious official (e.g., clergy).”... Requests “shall be denied where the leader of the religious organization has spoken publicly in favor of the vaccine, where the documentation is readily available (e.g., from an online source), or where the objection is personal, political, or philosophical in nature.”...

Denying an individual a religious accommodation based on someone else’s publicly expressed religious views — even the leader of her faith —runs afoul of the Supreme Court’s teaching that “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds.”

Bloomberg Law reports on the decision.

Recent Articles of Interest

 From SSRN:

• Krikor Ghazarian, A Neophyte's Comparison of Religious and Secular Natural Law Theories (September 25, 2021).
• H. Omer Tontus, Basic Principles of Islamic Perspectives in Organ Donation by a Surgeon's Approach, (October 20, 2020).
• Michael Conklin, Life Hangs in the Balance: Weighing Coronavirus Church Closings Against the Religious Freedom and Restoration Act, (NW U. L. Rev. Online (2020)).
• Raymond Shih Ray Ku, Free Speech & Abortion: The First Amendment Case Against Compelled Motherhood, (43 Cardozo Law Review (2021 Forthcoming)).
• DiMaris Medina-Cortes, Nonprofit Fraud Detection and Prevention Techniques From A Leader’s Perspective: A Q-Methodology Study (February 19, 2021).

From SmartCILP:

• Samuel A. Marcosson, Masterpiece Cakeshop and Tolerance as a Constitutional Mandate: Strategic Compromise in the Enactment of Civil Rights Laws, 15 Duke Journal of Constitutional Law & Public Policy 139-182 (2020).

President Biden Issues Hanukkah Message

President Biden issued a statement (full text) today wishing everyone a Happy Hanukah, and saying in part:

At its core, Hanukkah recounts a story at the heart of the human spirit – one that is inherently Jewish and undeniably American. It commemorates how even the most fragile flame can sustain a tradition and nourish the soul of a people. It teaches us that even a little bit of light, wherever it is found, can dispel the darkness and illuminate a path forward. And it reminds us that whether it is the Holy Temple in Jerusalem or the temple of our democracy, nothing broken or profaned is beyond repair.

Vaccine Mandate For Chicago City Employees Upheld

In Troogstad v. City of Chicago, (ND IL, Nov. 24, 2021), an Illinois federal district court refused to grant a temporary restraining order to city employees who were challenging the state and city mandatory COVID vaccination policy.  Among plaintiffs' various challenges was a free exercise claim, to which the court said in part:

To be clear, if a particular employee is denied a religious exemption, she may challenge that denial, based on the particular facts of her case, as a violation of her free exercise rights. But no Plaintiffs have been denied a religious exemption on grounds other than failing to adequately articulate their individual circumstances, as the City Vaccination Policy requires....

The court also rejected plaintiffs' claims that the vaccination mandate violates the Illinois Healthcare Right of Conscience Act, saying in part:

Plaintiffs might well be correct, if the City Vaccination Policy did not contain any avenue for religious exemptions.

But the City Vaccination Policy does provide a detailed religious exemption process that protects anyone who holds sincere religious objections to being vaccinated.

Court Upholds Testing Requirement For Employees Granted Religious Exemption From Vaccination

In Federoff v. Geisinger Clinic, (MD PA, No. 23, 2021), a Pennsylvania federal district court refused to issue a preliminary injunction in a suit by 100 clinic employees who had been granted religious exemptions from the COVID vaccine mandate so long as they submit to tests twice per week. The employees sue seeking to eliminate the testing requirement or, alternatively, to require vaccinated employees as well to submit to testing. The court, in rejecting plaintiffs' constitutional and statutory claims, said in part:

First, they assert constitutional claims against a private entity without so much as a paragraph describing how Geisinger could be considered a state actor....

Second, while the Geisinger Employees are in the right area code in alleging that Geisinger violated their rights under federal and state antidiscrimination law ... their allegations fail to touch on these statutes’ most basic requirements. To make out a prima facie case of religious discrimination, the Geisinger Employees must tell the Court what their religious belief is. They have not done so....

[Also] the antidiscrimination statutes require that employees first file their complaint with either the Pennsylvania Human Relations Commission or the Equal Employment Opportunity Commission. The Geisinger Employees have not done so..... 

[T]he Employees also fail to show that they would suffer irreparable harm...

Biden Issues Thanksgiving Day 2021 Proclamation

President Biden this week issued a Proclamation (full text) declaring today "a National Day of Thanksgiving" and saying in part:

Thanksgiving provides us with a time to reflect on our many blessings — from God, this Nation, and each other.  We are grateful for these blessings, even — and especially — during times of challenge.

...  Just as 400 years ago when the Pilgrims were able to celebrate a successful first harvest thanks to the generosity and support of the Wampanoag, today we too express our gratitude for those who have helped us get through this difficult past year.

9th Circuit: BIA Should Consider Evangelical Christians Separately From All Christians In Assessing Deportation Risk

In Nababan v. Garland, (9th Cir., Nov. 23, 2021), the U.S. 9th Circuit Court of Appeals remanded to the Board of Immigration Appeals (BIA) a petition by two Indonesians who are members of the Seventh Day Adventist Church who are seeking asylum, withholding of removal, and relief under the Convention Against Torture.  In order for the BIA to reopen petitioners' case, they would need to show changed conditions in Indonesia since the earlier denial of their petitions. In a 2-1 decision, the appeals court held that the BIA had committed legal error in finding no material change of conditions. The majority said in part:

[The BIA] failed, ... to account for Petitioners’ status as evangelical Christians or the evidence they presented indicating that evangelical Christians have experienced a particular increase in violence and persecution, beyond that experienced by Indonesian Christians in general.

Judge VanDyke dissented, saying in part:

The majority’s emphasis on the term “evangelical Christian” is not just absurdly fussy, it’s also inherently fuzzy. The majority latches onto the term, but never defines what it means. Does the majority mean that “evangelical Christians” are a subgroup of Christianity, akin to the commonly used distinction between, say, Catholics and Protestants? Or does the majority simply mean that “evangelical Christians” refers to any “Christians” who evangelize? If the latter, this broad categorization encompasses the vast majority, if not all, Christians....

Greyhound Settles EEOC Religious Accommodation Lawsuit

The EEOC announced this week that Greyhound Lines has agreed to settle a religious discrimination lawsuit brought against it on behalf of a Muslim woman who, after being accepted into the bus line's driver training program, was told she could not wear an abaya. The abaya is a loose fitting outer garment worn because of religious beliefs regarding modesty. Greyhound will pay $45,000 in damages, and will train its human resource and hiring personnel on handling of religious accommodations.

European Court Says Russia Violated Rights of Krishna Movement, Vaishnavism and Unification Church

As reported by Courthouse News Service, yesterday in Chamber Judgments, Russia lost two separate freedom of religion cases in the European Court of Human Rights.

In Centre of Societies for Krishna Consciousness In Russia and Frolov v. Russia, (ECHR, Nov. 23, 2021), the court held that a hostile description of the Krishna movement in government brochure titled “Watch out for cults!” violated petitioner's rights:

The Court considers that, even where the measures taken by the Government did not actually restrict the applicants’ freedom to manifest their beliefs through worship and practice, the hostile terms which the State authorities used to describe their movement may have had negative consequences for them and constitute an interference with their rights under Article 9 § 1 of the Convention.

The court also held that the rights of freedom of religion and assembly were violated when the District government refused permission for a meeting to promote the teaching of Vaishnavism.

In Corley and Others v. Russia, (ECHR, Nov. 23, 2021), the court held that the enforced departures of two religious workers were designed to prevent the spread of the Unification Church's teachings in Russia, in violation of various provisions of the European Convention on Human Rights.

Appeals Court Reverses Dismissal Of Fired Catholic Teacher's Suit

In Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Ct. App., Nov. 23, 2021), an Indiana state appellate court reversed a trial court's dismissal of a suit by a former teacher in a Catholic high school who claimed that the Archdiocese intentionally interfered with his contractual and employment relationships with the school. After plaintiff married his same-sex partner, the Archbishop insisted that the school terminate his teaching contract or else it could no longer designate itself as "Catholic." In rejecting dismissal of the suit, the appeals court said in part:

Here, the parties have yet to undertake the requisite “fact-sensitive and claim specific” analysis that must precede analysis of whether the First Amendment bars Payne-Elliott’s claims against the Archdiocese. For instance, do genuine issues of material fact exist regarding: (1) whether Payne-Elliott’s job duties as a teacher at an Archdiocese-affiliated school rendered him a “minister”; or (2) the applicability of the ecclesiastical abstention doctrine?  At this juncture, discovery in this matter is ongoing, and we find that this matter is well shy of being ripe for summary disposition....

Moreover, at this very early juncture, this Court cannot say that “it appears to a certainty on the face of the complaint” that Payne-Elliott is not entitled to any relief.... Nor can we say that the allegations present no possible set of facts upon which the complainant can recover.

WISH-TV News reports on the decision.

Free Exercise Challenge To Mandate For Masks On Public Transit Is Rejected

In Mahwikizi v. Centers for Disease Control & Prevention, (ND IL, Nov. 22, 2021), an Illinois federal district court refused to issue a preliminary injunction against enforcement of the federal COVID-19 requirement that people wear masks on public transit. Plaintiff who is a Catholic rideshare driver contended that "the mandate requires him to leave maskless passengers on the side of the road in violation of Christian teachings about the Good Samaritan." The court rejected plaintiff's free speech argument, saying in part:

Giving rides to maskless passengers isn’t speech; it is conduct. And conduct does not suddenly become speech simply because the person engaging in it intends to express an idea.

It rejected plaintiff's free exercise argument because it found that the mandate is a neutral law of general applicability that is subject only to rational basis review. In response to plaintiff's hybrid rights claim, the court said in part:

But “a plaintiff does not allege a hybrid rights claim entitled to strict scrutiny analysis merely by combining a free exercise claim with an utterly meritless claim of the violation of another alleged fundamental right.”

11th Circuit Rejects Nuclear Protesters' RFRA Defense

In United States v. Grady, (11th Cir., Nov. 22, 2021), the U.S. 11th Circuit Court of Appeals upheld the convictions of three members of the Plowshares movement, a Catholic protest organization opposed to nuclear weapons. Defendants were convicted for their illegal entry onto a Naval submarine base that was followed by a religious "symbolic disarmament" protest. The court rejected defendants' argument that their indictments should have been dismissed under the Religious Freedom Restoration Act, saying in part:

In this case, the parties agree that the defendants were exercising sincerely held religious beliefs, the government substantially burdened the defendants’ religious exercise, and the government has a compelling interest. Accordingly, the fourth prong in the RFRA analysis is the only prong in dispute in this appeal—whether the government met its burden of demonstrating that criminal prosecution of the defendants was the least-restrictive means of furthering its significant compelling interests in the safety and security of the naval base, naval base personnel, and naval base assets....

[I]n order to be a viable least-restrictive means for purposes of RFRA, the proposed alternative needed to accommodate both the religious exercise practiced in this case— unauthorized entry onto the naval base and destructive actions, including spray painting monuments, doors, and sidewalks, pouring human blood on doors and other areas, hammering on a static missile display, hanging banners and crime scene tape, as well as removing and partially destroying signage and monuments around the naval base—and simultaneously achieve the government’s compelling interests in the safety and security of the naval base, naval base assets, personnel, and critical operations....

[N]othing in RFRA supports destructive, national-security-compromising conduct as a means of religious exercise.