Bidens Extend Greetings For Nowruz

Yesterday, President Biden and Jill Biden issued a statement extending New Years greetings for Nowruz. The Statement (full text) reads in part:

Jill and I extend our best wishes to all who are celebrating Nowruz in the United States and around the world today — including in Iran and across the Middle East, in Central and South Asia, in the Caucuses, and in Europe....

That spirit of new beginnings and the joy of Nowruz is reflected in our own Haft-Sin table at the White House, representing our hopes for the new year.

Certiorari Denied In Dispute Over Anti-Discrimination Exemption for Religious Employers

The U.S. Supreme Court today in Seattle's Union Gospel Mission v. Woods, (certiorari denied, March 21, 2022) denied review, but Justice Alito, joined by Justice Thomas, filed an opinion saying in part:

The Washington Supreme Court’s decision may warrant our review in the future, but threshold issues would make it difficult for us to review this case in this posture.

At issue was the Mission's refusal on religious grounds to hire a bisexual male who was in a same-sex relationship as a staff attorney for its legal clinic.  Justice Alito said in part:

Because of such federal statutory exemptions and their state analogs, we have yet to confront whether freedom for religious employers to hire their co-religionists is constitutionally required....

But in this case the confrontation may be inevitable, as it involves an employment dispute between a religious employer and an applicant who was not hired because he disagreed with that employer’s religious views. The Washington Supreme Court expressly declined to apply its state employment law exemption for religious entities to this dispute. Instead, it held that if that state exemption applied to employment decisions beyond those involving church ministers, such an exemption would violate the Washington State Constitution’s protection for other individual rights and could become a “license to discriminate.”

USCIRF Warns of Religious Oppression By Russians In Ukraine

Last week, the U.S. Commission on International Religious Freedom issued a press release warning that Russia will likely target religious communities across Ukraine with violence and oppression. The release reads in part:

The Russian government uses distortions of religious history to support its claim that Ukrainians have no independent ethno-religious identity or state tradition,” said USCIRF Commissioner James W. Carr. “In 2019, the Ecumenical Patriarch of Constantinople recognized an independent Orthodox Church of Ukraine, allowing many parishes previously under the jurisdiction of Moscow to sever those ties in a move that infuriated Russian nationalist sentiments. These parishes and their leadership are in jeopardy if Russian control expands.”...

“In the areas of Ukraine already occupied by Russia in 2014, we have seen the Russian government use baseless charges of religious extremism and terrorism to silence dissent, justify endless raids and mass arrests, and close religious institutions that do not conform to its narrow interpretation of ‘traditional’ religion,” said USCIRF Commissioner Khizr Khan. “Indigenous Crimean Tatar Muslims—who oppose the Russian occupation of their homeland—are routinely charged with terrorism based on their ethno-religious identity rather than any substantive evidence. Many of these individuals receive prison sentences of up to 20 years. 

New York Releases New Proposed Curriculum Rules For Nonpublic Schools

On March 10, the New York Education Department announced the release of the third version of Proposed Regulations (full text) to assure substantially equivalent instruction for non-public school students. According to Hamodia:

These regulations, like the those previously proposed, require periodic reviews of every nonpublic school by their LSA (local school district or authority).

Where they differ is that they offer a few paths for a nonpublic school to avoid those reviews, at least initially. One such path is “registration” — which is the technical term for a high school that administers the Regents examinations. Another is “accreditation” by an agency that is approved by the State Education Department....

Our analysis is that all of the non-Jewish private schools will be exempt from LSA reviews while a majority of yeshivos will not be exempt. As a result, these regulations governing the substantial equivalency reviews by LSAs will be applied exclusively at yeshivos.

Churches Can Move Ahead On Damage Claims Against County For Its COVID Orders

In Calvary Chapel San Jose v. Cody, (ND CA, March 18, 2022), two churches and their pastors sued the state of California and Santa Clara County over their COVID orders. As explained by the court:

Beginning in March 2020, both the State and the County issued emergency orders that instituted capacity limits for certain types of facilities, restricted the practice of certain activities (including singing and chanting), and required individuals to wear masks in many situations....

[Plaintiffs alleged] that the emergency orders imposed harsher restrictions on churches than on other institutions. When Calvary Chapel admittedly defied those orders, Plaintiffs allege that the County sent threatening letters to the church’s bank and levied against it millions of dollars in fines for the violations. Plaintiffs bring nine claims, alleging violations of their First, Eighth, and Fourteenth Amendment rights under the Federal Constitution, violations of the California Constitution, and a violation of California’s Bane Act.

The court granted the state of California's motion to dismiss, finding that plaintiffs' claims for injunctive and declaratory relief are moot, and that any claim for damages is barred by the 11th Amendment. However damage claims against the county were allowed to move forward. The court concluded that plaintiffs had adequately plead free exercise, freedom of assembly, equal protection, and excessive fines claims.

Recent Articles of Interest

From SSRN:

• Muhammad Munir, The Role of Shari‘a in the Legal System of Pakistan, (January 16, 2022).
• Donna M. Gitter, First Amendment Challenges to State Vaccine Mandates: Why the U.S. Supreme Court Should Hold That the Free Exercise Clause Does Not Require Religious Exemptions, 71 Am. U. L. Rev. (2022, Forthcoming).
• Robert K. Vischer, Christian Nationalism and the Rule of Law, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 22-18 (2022).
• Gregory C. Sisk & Michael Heise, Where to Place the “Nones” in the Church and State Debate? Empirical Evidence from Establishment Clause Cases in Federal Court, (St. John's Law Review , Vol. 96, No. 3, 2022).
• Patricia Wiater, Not Who but What Can Hold Human Rights? Companies and Nature as Subjects of Human Rights Protection, (December 18, 2021).
• Emad H. Atiq, Reasonable Moral Doubt, (97 N.Y.U. Law Review (Forthcoming 2022)).
• Rachel Tomlinson Dick, Play Like A Girl: Bostock, Title IX's Promise, and the Case for Transgender Inclusion in Sports, 101:1 Neb. L. Rev. (2022 Forthcoming)).

From SmartCILP and elsewhere:

• Brett A. Geier, Funding God's Schools—A Legal Analysis of Appropriating Public Dollars to Parochial Schools: Does Michigan's Latest Legislation Violate the Separation of Church and State?, [Abstract], 49 Journal of Law & Education 285-338 (2020).
• Journal of Law & Religion, Volume 37, Issue 1, January 2022.

Court Clerk Violated Rights Of Same-Sex Couples

In Ermold v. Davis, (ED KY, March 18, 2022), a high-profile case that has been pending since 2015, a Kentucky federal district court held that Rowan County Clerk Kim Davis violated the constitutional rights of two same-sex couples when she refused, on religious grounds, to issue them marriage licenses. Rejecting Davis' claim of qualified immunity, the court said: "Davis did not make a mistake. Rather, she knowingly violated the law."  Allowing plaintiffs to move ahead with their civil rights claim, the court said in part:

Ultimately, this Court’s determination is simple—Davis cannot use her own constitutional rights as a shield to violate the constitutional rights of others while performing her duties as an elected official.

The court said that a jury should decide whether plaintiffs are entitled to compensatory and punitive damages. AP reports on the decision. [Thanks to Scott Mange for the lead.] [UPDATED]

New Washington State Law Protects Abortion Rights

As reported by MyNorthwest, on Thursday, Washington Governor Jay Inslee signed HB1851 (full text) protecting the right to abortion before viability of the fetus or to protect the life or health of the pregnant individual.  It provides in part:

The state shall not penalize, prosecute, or otherwise take adverse action against an individual based on their actual, potential, perceived, or alleged pregnancy outcomes. Nor shall the state penalize, prosecute, or otherwise take adverse action against someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.

The new law also provides in part in its statement of policy:

Although the abortion rights movement has historically centered on women in our advocacy, that must no longer be the case and it is critical that we recognize that transgender, nonbinary, and gender expansive people also get pregnant and require abortion care.

Consistent with this, references to "woman" in the state's abortion laws were changed to "pregnant individual". 

New Ohio Law Allows Religious Apparel For Student Athletes

On Feb. 28, Ohio Governor Mike DeWine signed into law Senate Bill 181 (full text) which allows students to wear religious apparel while competing in inter-scholastic athletic competitions or extracurricular activities.  A limited exception allows regulation where the apparel would create a legitimate danger. In such cases, reasonable accommodation is required. Don Byrd has additional background on the law.

Anti-Abortion Protesters Can Move Ahead With Challenge To COVID Order

 In Global Impact Ministries, Inc. v. City of Greenspboro, (MD NC, March 16, 2022), a North Carolina federal district court allowed plaintiffs who were anti-abortion protesters, to move ahead with their free speech, freedom of association, equal protection, due process and 4th Amendment claims.  Plaintiffs allege that the city's COVID stat-at-home order was enforced to bar them from walking, praying, and counseling outside of an abortion clinic while others who were not praying or engaging in religious speech were allowed to walk in the area. The court did dismiss plaintiffs' free exercise claim, finding that the COVID order was neutral and generally applicable.

ABC Surveys Religious Views Of SCOTUS Nominee Jackson

 ABC News features an article surveying what is known about Supreme Court nominee Ketanji Brown Jackson's religious beliefs. ABC points to religious references in two speeches out of 2000 pages of documents and one year of service on an advisory board of Montrose Christian School where Jackson focused mainly on fundraising.  ABC reports:

Friends and former colleagues close to Jackson have described her religious practice as private and deeply personal, neither a frequent topic of conversation nor an overly outward display. She identifies as a Protestant Christian, one Jackson associate, who asked to speak anonymously due to sensitivity of the matter, told ABC News.

Indian Court Upholds Hijab Ban In Schools and Colleges

As reported by CBS News:

The top court in the southern Indian state of Karnataka on Tuesday upheld a ban on hijabs, or Muslim headscarves, in schools and colleges in a ruling that could deepen the religious divide in the country.

In Resham v. State of Karnataka, (High Ct. Karnataka, March 15, 2022), a 3-judge panel of the High Court of the Indian state of Karnataka in a 129-page opinion upheld the ban, saying in part:

wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith.

Kansas Teacher Sues Over Requirement To Use Students' Preferred Pronouns

 CNN reported last week on a lawsuit filed by a Fort Riley, Kansas middle school teacher who was disciplined for refusing to call a transgender student by the student's preferred name and pronouns. The complaint alleges in part:

Any policy that requires Ms. Ricard to refer to a student by a gendered, non-binary, or plural pronoun (e.g., he/him, she/her, they/them, zhe/zher, etc.) or salutation (Mr., Miss, Ms.) or other gendered language that is different from the student's biological sex actively violates Ms. Ricard's religious beliefs.

Recent Articles of Interest

 From SSRN:

• Ronald J. Colombo, A Legal Analysis of Religious Arbitration, (Canopy Forum 2022 (Center for Law and Religion / Emory University)).
• Kyle Velte, Lesson for LGBT Rights Advocates from Who's the Bigot?, (Journal of Law and Religion, Vol. 36, No. 341, 2021).
• Andrew M. Koppelman, The Increasingly Dangerous Variants of the “Most-Favored-Nation” Theory of Religious Liberty, (Northwestern Public Law Research Paper No. 22-1 (2022).
• Pasquale Annicchino, Friends of the Court: Christian Conservative Arguments on Human Dignity Before the U.S. Supreme Court and the European Court of Human Rights, (BYU Law Review 2021).
• Carliss Chatman, We Shouldn't Need Roe, (UCLA Women's Law Journal, Forthcoming).

From SSRN (Non-U.S. Law)

• Samiul Hasan, Islam in Bangladesh: Decline of the Liberal Hanafi School in the Information Age, (March 7, 2022).
• Imran A. Nyazee, The Future of Islamic Law, (February 12, 2022).
• Laura T. Kessler, Achieving Equality without a Constitution: Lessons from Israel for Queer Family Law, (in Queer and Religious Alliances in Family Law Politics and Beyond (Nausica Palazzo & Jeffrey A. Redding eds., Anthem Press) (2022 Forthcoming).
• Raphael Cohen-Almagor, The Republic, Secularism and Security: France versus the Burqa and the Niqab (Introduction), (Cham: Springer, 2022).
• Kristopher Kinsinger, Quebec's Bill 21 and the Secular Conceit of Religious Neutrality, (IJRF Vol 13:1/2 2020).
• Jeffrey A. Redding, Translating 'Courts' Cautiously, (The Immanent Frame: Secularism, Religion, and the Public Sphere 2021).
• Jeffrey A. Redding, Religion, (The Cambridge Companion to the Constitution of India (Aparna Chandra, Gautam Bhatia, Niraja Gopal Jayal eds., 2022).
• Alec Stone Sweet, Wayne Sandholtz & Andenas, The Failure to Destroy the Authority of the European Court of Human Rights: 2010-2018, (March 12, 2022).
• Berihun Adugna Gebeye, Global Constitutionalism and Cultural Diversity: The Emergence of Jurisgenerative Constitutionalism in Africa, (Global Constitutionalism 2021).

From SmartCILP:

• Daniel Cameron & Matthew F. Kuhn, Religious Liberty in the Age of COVID-19: Kentucky's Experience, 59 University of Louisville Law Review 203-226 (2021).

Defamation Suit Dismissed On Ecclesiastical Abstention Doctrine

In Heras v. Diocese of Corpus Christie, (TX App, March 10, 2022), a Texas state appellate court affirmed the dismissal on ecclesiastical abstention grounds of defamation suits by two priests who were included on the diocese's list of clergy who have been credibly accused of sexually abusing a minor. The court said in part:

[W]e hold appellants’ defamation suits are barred by the ecclesiastical abstention doctrine because the substance and nature of the appellants’ claims against appellees are inextricably intertwined with appellees’ internal directive for openness and transparency.... More specifically, appellants’ claims are inextricably intertwined with appellees’ decision to release the list incompliance with an internal church directive....

Texas Supreme Court Effectively Ends Challenge To Heartbeat Abortion Ban

The Texas Supreme Court, answering a question of state law certified to it by the U.S. 5th Circuit Court of Appeals, has effectively prevented abortion providers from challenging Texas "heartbeat" abortion law.  In Whole Woman's Health v. Jackson, (TX Sup.Ct., March 11, 2022), the court concluded:

Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly.

CNN reports on the decision. 

Israel's Chief Rabbi Proposes Special Court To Aid Ukrainian Refugees In Proving Religious Status

Jewish Press and Israel Hayom yesterday reported that Israel's Chief Ashkenazi Rabbi David Lau in a letter to Israel's attorney general has proposed setting up a special religious court (Beit Din) to assist the expected 30,000 or more refugees from Ukraine in proving their Jewish status, thus entitling them to Israeli citizenship under the Law of Return.  The refugees are now entering the country with tourist visas.  Lau pointed out that many Ukrainians fled their homes without documentation of their religious status. Lau plans to appoint three retired religious court judges with experience in this area to the special Beit Din.

Lawsuit By Nun Seeks A Religious Exemption From D.C.'s Healthcare Professionals' Vaccine Mandate

Litigation over the denial of religious exemptions from COVID vaccine mandates continues. This week, a suit was filed in the D.C. federal district court by a nun who is a surgeon and family physician. The DC health department denied her request for a religious exemption from its vaccine requirement for health care professionals.  The complaint (full text) in Byrne v. Bowser, (D DC, filed 3/9/2022) contends that this violates Sr. Deirdre's rights under RFRA and the Free Exercise Clause. In seeking a temporary restraining order and preliminary injunction. plaintiff lists the various medical services she will be unable to perform, including "her abortion pill reversal ministry with the result that human lives that could have been saved in utero might well be lost." Attached to the complaint are nearly 450 pages of exhibits. Thomas More Society issued a press release announcing the filing of the lawsuit.

Legal Responses Continue To Texas Ban On Gender Transition For Minors

 As previously reported, last month Texas Attorney General Ken Paxton in an Attorney General Opinion concluded that a number of procedures used to treat gender dysphoria, i.e. assist transgender individuals in their gender transitions, can amount to child abuse under Texas law. Building on this opinion, Governor Greg Abbott sent a letter to the head of the Texas Department of Family and Protective Services, instructing them to promptly investigate cases covered by the Attorney General's Opinion. As those investigations began, numerous legal developments followed.

On March 2, the Office for Civil Rights of the U.S. Department of Health and Human Services issued a Guidance on Gender Affirming Care which read in part:

Section 1557 protects the right of individuals to access the health programs and activities of recipients of federal financial assistance without facing discrimination on the basis of sex, which includes discrimination on the basis of gender identity.... [I]f a parent and their child visit a doctor for a consultation regarding or to receive gender affirming care, and the doctor or other staff at the facility reports the parent to state authorities for seeking such care, that reporting may constitute violation of Section 1557 if the doctor or facility receives federal financial assistance.

In response, the state of Texas filed an amended complaint (full text) in its pending lawsuit against the federal government (State of Texas v. EEOC, ND TX filed 3/9/2022)  challenging this Guidance.

Meanwhile, in Jane Doe v. Abbott, (TX Dist. Ct., March 2, 2022), a Texas state trial court granted a temporary restraining order providing: "Defendants are immediately enjoined and restrained from taking any actions against Plaintiffs based solely on the Governor’s letter and DFPS statement ... as well as Attorney General Paxton’s Opinion...." The state Court of Appeals in Abbott v. Jane Doe, (TX App., March 9, 2022), held that the TRO was not an appealable order. Texas Tribune reports on some of these developments.

Alaska Supreme Court Upholds Award Of Vaccination Decision-Making To Father Over Mother's Religious Objections

 In Lady Donna Dutchess v. Dutch, (AK, March 9, 2022), the Alaska Supreme Court upheld a trial court's decision awarding sole authority to make decisions regarding vaccinations to a divorced father. The mother objected to all vaccinations for the children on religious grounds. The mother contended that this violated her free exercise rights under the state and federal constitutions. Rejecting that argument, the Alaska Supreme Court said in part:

We are not convinced that heightened scrutiny necessarily applies to child custody determinations allocating decision-making authority between parents, nor did the parties brief this issue. We note that several other state courts have concluded that strict scrutiny does not apply to a custody determination between parents with divergent religious convictions.... [A] court’s application of custody statutes in a manner exhibiting “a preference for the religious over the less religious” would essentially place “government on the side of organized religion, a non-secular result that the establishment clause is designed to prevent.” ...[T]he superior court here properly considered how the mother’s desire not to vaccinate the children was contrary to the recommendation of the children’s pediatrician and counter to their best interests.

Even if we were to apply heightened scrutiny ... , the superior court’s ruling would withstand review. The Statehas “an undeniably compelling interest in protecting the health of minors.”