Transit System's Rejection Of Religious Ads Violates Synagogue's Free Speech Rights

In Young Israel of Tampa, Inc. v. Hillsborough Regional Transit Authority, (MD FL, Jan. 20, 2022), a Florida federal district court held that the free speech rights of an Orthodox Jewish synagogue were violated when the local transit system (HART) refused to accept its display ad promoting its "Chanukah on Ice" event. HART refused the ad under its rule against advertisements that primarily promote a religious faith or religious organization. The court said in part:

Here, HART’s Advertising Policy constitutes viewpoint discrimination.... HART allowed advertisements for a secular holiday event with ice skating and seasonal food ..., but it disallowed an ice skating event with seasonal food that was in celebration of Chanukah. Thus, HART’s ban ... targets the “specific motivating ideology or the opinion or perspective of the speaker.”

The court added that even if HART's policy were viewpoint neutral, it does not have objective, workable standards for applying it.

Trial Set On Why Street Preachers Were Removed From Gay Pride Event

In Waldrop v. City of Johnson City, Tennessee,(ED TN, Jan. 26, 2022), a Tennessee federal district court, in a case on remand from the 6th Circuit, set for trial a suit by two street preachers who were removed from a Pride event. The court said in part:

A genuine issue of material fact exists as to whether the officers removed Plaintiffs from Founders Park, and if so, whether they did so for a content-neutral or content-based reason.

11th Circuit Undercuts State Attempt To Limit Inmate's Right To Sue

In a prisoner Free Exercise case, the U.S. 11th Circuit Court of Appeals has issued an opinion which bars a tactic by which prison officials might obtain dismissal of a prisoner suit without reaching the merits of the case.  The so-called "three-strike" provision in 28 U.S.C. § 1915(g) limits an inmate's ability to bring a suit in forma pauperis, i.e. without paying the usual filing fee, if the inmate has previously had three suits dismissed for lack of merit.  In Maldonado v. Baker County Sheriff's Office, (11th Cir., Jan. 25, 2022), a three-strike plaintiff (along with a co-plaintiff) filed suit in forma pauperis in Florida state court contending that they were prevented from attending Jummah prayer services. Defendants then removed the case to federal court and sought dismissal under the three-strike provision.  The court held

The plain and ordinary meaning of § 1915(g) is clear—it only applies to cases commenced in federal court by a prisoner who sought and was granted in forma pauperis status in that court.  As such, § 1915(g) does not apply to actions, like the one here, brought by a three-strikes litigant in state court that was removed to federal court by another party.

Nevada Prison's Ban On Prayer Oil Violates RLUIPA

In Johnson v. Baker, (9th Cir., Jan. 26, 2022), the U.S. 9th Circuit Court of Appeals held that the Nevada prison system violated RLUIPA when it banned a Muslim inmate from possessing a small amount of scented oil in his cell for use when he prayed, saying in part:

Given that Nevada’s prison regulation prevents Johnson from praying according to his faith, it has substantially burdened his religious exercise. Nevada also fails to show that its regulation is the least restrictive means of furthering its compelling interest....

Nevada argues that prison officials depend on their sense of smell to detect contraband and scented oil could be used to cover the smell of contraband, such as drugs....

Nevada’s prison regulations as to other scented products undermines the State’s argument. It’s undisputed that Nevada prisoners may keep many scented products in their cells....  [T]hese products all have “strong scents” and are available to purchase in larger quantities than the half-ounce of scented oil sought by Johnson.

Oregon Court Rejects Part Of Its Earlier Decision In Wedding-Cake Dispute

In Klein v. Oregon Bureau of Labor and Industries, (OR App., Jan. 26, 2022), the Oregon Court of Appeals, in a case on remand from the U.S. Supreme Court, reaffirmed its prior decision in part in a challenge to the religious refusal by a bakery (Sweetcakes by Melissa) to provide a wedding cake for a same-sex marriage. The court reaffirmed its conclusion that the refusal violates the anti-discrimination provisions of the state's public accommodation law that prohibits discrimination on the basis of sexual orientation. It held that the U.S. Supreme Court's decision in Fulton v. City of Philadelphia does not change its earlier conclusion, saying in part:

the Kleins have not demonstrated that Fulton alters our prior conclusion that ORS 659A.403 is a “generally applicable” law for purposes of Smith, nor our related conclusion that, under Smith, the application of the law to Aaron’s conduct of denying cake-making services based on sexual orientation does not violate the Kleins’ rights under the Free Exercise Clause.

The court however did set aside the damage order entered by the Oregon Bureau of Labor and Industries, finding that, in light of the U.S. Supreme Court's Masterpiece Cakeshop decision, BOLI’s decision on damages violates the Free Exercise Clause.  The court said in part:

[T]he prosecutor’s closing argument apparently equating the Kleins’ religious beliefs with “prejudice,” together with the agency’s reasoning for imposing damages in connection with Aaron’s quotation of Leviticus, reflect that the agency acted in a way that passed judgment on the Kleins’ religious beliefs, something that is impermissible under Masterpiece Cakeshop.

The Oregonian reports on the decision.

Universal Life Church Can Move Ahead With Suit On Marriage Solemnization Right

In Universal Life Church Monastery Storehouse v. McGeever, (WD PA, Jan. 25, 2022), a Pennsylvania federal district court refused to dismiss a suit against Allegheny County, Pennsylvania court officials who refuse to allow Universal Life Church ministers to solemnize marriages. the court said in part:

[A[ live case or controversy exists. Universal has alleged that its ministers are being singled out as “illegitimate” and unworthy of solemnizing marriages in the Commonwealth. According to Universal, this “singling out” has chilled the exercise of its ministers’ First Amendment rights. This harm is ongoing and exists whether Defendants’ offices, in fact, refuse to issue licenses for marriages performed by Universal’s ministers.

Today Is International Holocaust Remembrance Day

Today is International Holocaust Remembrance Day as designated by United Nations Resolution 60/7 (full text), adopted by the General Assembly in 2005.  January 27 is the anniversary of the liberation of Auschwitz-Birkenau. Yesterday, President Biden announced the names of 12 individuals he intends to appoint to the United States Holocaust Memorial Council.  As chair, he will appoint Stuart Eizenstat.

3rd Circuit Hears Oral Arguments In Title VII Reasonable Accommodation Case

Yesterday, the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Groff v. DeJoy.  In the case, a Pennsylvania federal district court (full text of district court opinion) dismissed Title VII claims brought by an Evangelical Christian postal worker who resigned after receiving warning letters and suspensions for refusing to work on Sundays. The district court rejected claims of religious discrimination and held that plaintiff had been offered shift swapping that met the "reasonable accommodation" requirement of Title VII.  The Third Circuit has not previously decided an issue on which the Circuits are split-- whether an employer must wholly eliminate a conflict between work and religion in order for an accommodation to be reasonable under Title VII. The district court concluded that complete elimination is not required.

9th Circuit: Fact Issues Remain As To Prison's Confiscation of NOI Texts

 In Jones v. Slade, (9th Cir., Jan. 24, 2022), the U.S. 9th Circuit Court of Appeals reversed a district court's grant of summary judgment and held that there remains genuine issues of fact in connection with an Arizona prison's confiscation of six hip-hop music CD's and two Nation of Islam texts which plaintiff received by mail.  The Court held that questions remain as to selective enforcement of prison rules as to the music CD's.  It concluded that plaintiff's RLUIPA and Free Exercise claims relate to his religious practice of reading Nation of Islam texts authored by Elijah Muhammad during Ramadan.  The court said in part:

RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” ... That means that RLUIPA protects not only practices deemed orthodox by some recognized religious organization,  but also idiosyncratic practices—practices “not compelled by, or central, to a [given] system of religious belief.”

The court held that as to both plaintiff's RLUIPA claim and his 1st Amendment Free Exercise claim, "there is a genuine issue of fact as to whether denying Jones essential religious texts during Ramadan is a substantial burden on his religious exercise...."  Tucson Sentinel reports on the decision.

Biden and Harris Issue Statement In Support Of Roe v. Wade

Last Saturday (Jan. 22) was the 49th anniversary of the decision in Roe v. Wade that established a constitutional right to abortion.  On Saturday, the White House issued a statement from President Biden and Vice President Harris (full text), saying in part:

The Biden-Harris Administration strongly supports efforts to codify Roe, and we will continue to work with Congress on the Women’s Health Protection Act. All people deserve access to reproductive health care regardless of their gender, income, race, zip code, health insurance status, immigration status, disability, or sexual orientation. And the continued defense of this constitutional right is essential to our health, safety, and progress as a nation.

We must ensure that our daughters and granddaughters have the same fundamental rights that their mothers and grandmothers fought for and won on this day, 49 years ago....

10th Circuit Affirms Dismissal Of Churches Challenge To Colorado COVID Restrictions

In Denver Bible Church v. Polis, (10th Cir., Jan. 24, 2022), the U.S. 10th Circuit Court of Appeals affirmed a district court's denial of a preliminary injunction in a free exercise challenge by two churches and one of their pastors to COVID restrictions imposed by the state of Colorado.  It similarly affirmed the dismissal of a challenge to the federal government's award of COVID relief aid to the state.  The court dismissed most of the claims against the state on mootness grounds, finding that changes in state restrictions have lifted all COVID limits on churches. The facial challenge to the state's emergency disaster statute was dismissed because the statute is neutral and generally applicable.  The court then dismissed for lack of standing plaintiffs' claim that the federal government violated RFRA by distributing COVID relief aid to Colorado while the state was violating plaintiffs' free exercise rights.

Free Exercise Challenges To OSHA Vaccine Mandate Dismissed By Supreme Court In Light Of NFIB Decision

 As has been widely reported, earlier this month in National Federation of Independent Business v. OSHA, (Sup. Ct., Jan. 13, 2022), the Supreme Court held that OSHA exceeded its statutory authority in ordering vaccination of employees in all businesses with more than 100 employees.  Today, the Supreme Court dismissed 13 cases in which the same OSHA regulation was challenged. (Order List). Among those dismissed were two cases brought by religious institutions that raised specific religious freedom objections to the vaccine mandate: Southern Baptist Theological Seminary v. OSHA, (Docket No. 21A246, dismissed 1/24/2022) and Word of God Fellowship, Inc. v. OSHA, (Docket No. 21A250, dismissed 1/24/2022). More details of the challenges in those two cases are discussed in this prior posting.

Recent Articles of Interest

 From SSRN:

• SpearIt, 9/11 Impacts on Muslims in Prison, (Michigan Journal of Race & Law, Vol. 27, p. 101, 2021, forthcoming).
• Gila Stopler, From Private Prejudice to Public Policy: How Religious Conservatives Use Liberalism to Control Women’s Bodies the U.S. and Israel in Comparative Perspective,  (Forthcoming in 30 William and Mary Bill of Rights Journal,).
• Bruce A. Green & Rebecca Roiphe, ABA Model Rule 8.4(g), Discriminatory Speech, and the First Amendment, (Hofstra Law Review, Vol. 50, 2022).
• Ronit Irshai, Tanya Zion-Waldoks & Bana Shoughry, The First Female Qadi in Israel's Shari`A (Muslim) Courts: Nomos and Narrative, (Shofar 38.2 (2020): pp. 229–262).

From SmartCILP:

• Therese M. Stewart, Judicial Words Matter, 21 Journal of Appellate Practice & Process 433-454 (2021).
• George Nicholson, Appendix A: Court-Clergy Outreach, 21 Journal of Appellate Practice & Process 505-520 (2021).

Senate Confirms Joseph Donnelley As Ambassador To The Vatican

On Jan. 20, the U.S. Senate, by voice vote, confirmed Joseph Donnelley of Indiana to be U.S. Ambassador to the Vatican. AP reports:

Donnelly is a Democrat who served six years in the U.S. House from a South Bend-area district before winning election to the Senate in 2012. He lost his 2018 reelection bid to Republican Mike Braun.

Donnelly has bachelor’s and law degrees from the University of Notre Dame, where he has been a part-time professor while also working for the Washington law firm Akin Gump.

Notre Dame President Rev. John Jenkins called Donnelly “a person of deep Catholic faith and commitment to public service.”

 [Thanks to Scott Mange for the lead.]

Pastor's Suit Against Church For Mishandling Investigation Dismissed On Ecclesiastical Abstention Grounds

In Taylor v. Evangelical Covenant Church, (IL App., Jan. 12, 2022), an Illinois state appeals court dismissed on ecclesiastical abstention grounds a suit by a pastor against his former church for breach of contract and intentional interference with economic advantage. Plaintiff claimed that the church carelessly handled an investigation into malicious accusations against him of sexual assault supposedly occurring some forty years earlier, before plaintiff became a pastor. Plaintiff was suspended during the investigation, and after the suspension was lifted he was never returned to his former position. The court said in part:

Even viewed in the light most favorable to him, plaintiff’s claims arise from a wholly internal investigation and suspension conducted by his church. Plaintiff’s claims are inexorably intertwined with defendant’s investigation as to whether he was fit to serve as a pastor, given the accusation of sexual misconduct against him. That is, the substance of plaintiff’s complaint relates to internal matters of church governance and discipline. Ecclesiastical abstention is required because this case necessarily involves matters of internal discipline....  [N]o matter how egregiously defendant may have departed from proper investigatory procedures, the subject matter of the dispute makes abstention compulsory.

Ann Arbor, Michigan City Council Condemns Synagogue Picketers

The Ann Arbor, Michigan City Council on January 18 adopted a Resolution Condemning Antisemitism (full text) which explicitly condemns a group of individuals who have picketed the local Conservative synagogue every Saturday for the last 18 years.  The Resolution reads in part:

Whereas, A small group has picketed the Beth Israel Congregation, an Ann Arbor synagogue, every Saturday for 18 years, erecting antisemitic signs along the Washtenaw Avenue right-of-way including those that allege conspiracy and tarnish the Star of David, creating an atmosphere of hate;

RESOLVED, That the Ann Arbor City Council condemns all forms of antisemitism, and in particular the weekly antisemitic rally on Washtenaw Avenue; calls upon the persons who rally to express antisemitism on Washtenaw Avenue to renounce extremism, disband, and cease their weekly show of aggressive bigotry; and declares its support for the Beth Israel Congregation, their guests, and all members of the Jewish Community in Ann Arbor, each of whom has the right to worship, gather, and celebrate free from intimidation, harassment, and fear of violence.

Last year, the U.S. 6th Circuit Court of Appeals dismissed a suit against the picketers finding that their actions are protected by the 1st Amendment. (See prior posting.) MLive has a detailed report on the Council meeting at which the resolution was adopted.

Supreme Court Assures Further Delay In Challenge To Texas Heartbeat Abortion Law

Yesterday, in In re Whole Woman's Health, (Sup.Ct., Jan. 20, 2022),  the U.S. Supreme Court in a brief Order refused to issue a writ of mandamus requested by Texas abortion providers who are seeking a speedy adjudication of the constitutionality of Texas SB8, the state's "heartbeat" abortion law that essentially bans almost all abortions after six weeks of pregnancy.  Courts, including the Supreme Court, have refused to enjoin enforcement of the Texas law while its constitutionality is being litigated. Earlier this week, the 5th Circuit assured further delay by certifying a state law issue in the case to the Texas Supreme Court instead of remanding the case to the Texas federal district court for it to act on the constitutional question. (See prior posting.) Yesterday, Justice Breyer filed a dissenting opinion that was joined by Justices Sotomayor and Kagan, and Justice Sotomayor filed a dissenting opinion joined by Justices Breyer and Kagan, objecting to the Court's denial of mandamus.  Justice Sotomayor said in part:

Today’s decision shows that any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory. As it turns out, Texas did not even have to amend its law to sidestep the minimal relief this Court left available. Instead, Texas wagered that this Court did not mean what little it said in Whole Woman’s Health II or, at least, that this Court would not stand behind those words, meager as they were. That bet has paid off.... [This Court] accepts yet another dilatory tactic by Texas.... 

This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee.

Texas Tribune reports on the decision.

Report Criticizes Cardinal Who Later Became Pope For Not Acting On Sex Abuse Reports

A German law firm yesterday released a lengthy report (full text in German) on sexual abuse by clerics and employees in the Archdiocese of Munich and Freising from 1945 to 2019.  The report is of particular interest because then-Cardinal Joseph Ratzinger who later became Pope Benedict XVI headed the Archdiocese from 1977 to 1982. Vatican News Service summarizes the Report's findings:

At least 497 people were abused in the Archdiocese of Munich-Freising over a period of almost 74 years (from 1945 to 2019). Most of them were young; 247 are male victims and 182 are female. Sixty percent of the victims were between the ages of 8-14. The report identifies 235 perpetrators of abuse including 173 priests, nine deacons, five pastoral workers, 48 people from the school environment.

According to NPR:

The report ... contradicts Benedict's long-running denial that he covered up or ignored abuse.

Two of the cases involved two perpetrators who committed the abuse while Ratzinger was in office.... The two were kept in pastoral work after being punished by the judicial system. A third case involved a cleric who had been convicted by a court outside Germany and was put back into service in the Munich archdiocese despite evidence showing Ratzinger knew of the man's past....

The law firm's report also criticizes Cardinal Reinhard Marx, who is currently the archbishop of Munich and Freising, for his role in two cases in 2008.

RFRA Defense Successful For Tribal Member Charged In Protest Over Border Wall Construction

In United States v. Ortega, (D AZ, Jan. 19, 2022), an Arizona federal district court reversed its earlier ruling (see prior posting) and allowed Amber Ortega, a member of the Tohono O’odham Nation, to raise a Religious  Freedom Restoration Act defense in her trial on two misdemeanor charges for violating a closure order at the Organ Pipe Cactus National Monument. Ortega was protesting construction of a border wall at Organ Pipe. At the hearing on Wednesday, the court went on to acquit Ortega.  According to KJZZ News, at the hearing Ortega's new lawyer argued:

[T]he religious act in question was not prayer at Quitobaquito.  It was the act of standing at the construction line and witnessing what she saw as the destruction of her ancestral land.

Former Scientology Members No Longer Bound By Arbitration Agreement

In Bixler v. Superior Court for the State of California, (CA App., Jan. 19, 2022), a California state appellate court, reversing the trial court, held that former Church of Scientology members were not bound by their agreement to submit all disputes with the Church to the Church's Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the Church. Plaintiffs reported to the police that "That 70’s Show" star Danny Masterson, who was also a Scientology member, had raped them. In retaliation for their reporting, plaintiffs claim that the Church encouraged its members to engage in an elaborate harassment campaign using the Church's so-called Fair Game tactics. The court summarized its holding:

Individuals have a First Amendment right to leave a religion. We hold that once petitioners had terminated their affiliation with the Church, they were not bound to its dispute resolution procedures to resolve the claims at issue here, which are based on alleged tortious conduct occurring after their separation from the Church and do not implicate resolution of ecclesiastical issues.

New York Post reports on the decision.