Recent Articles of Interest

From SSRN:

• Rafael Domingo Osle, Toward a Global Canon Law Centred on the Human Person, (March 4, 2022).
• Surya Prabhat Pali, Balancing Environment and Religion: An Analysis of the Judicial Approach, (Issue 37, Lex Terra 2022).
• Alan Edward Brownstein & Vikram D. Amar, Locating Free-Exercise Most-Favored-Nation-Status (MFN) Reasoning in Constitutional Context, (Forthcoming, 2022 Loyola University of Chicago Law Journal).
• Khaled Beydoun & Nura Sediqe, Unveiling, (California Law Review, Vol. 111, Forthcoming 2023).
• Patricia Wiater, Why Do Corporations Have Human Rights? The Emerging Jurisprudence on Non-Human Subjects in Regional Courts, (December 18, 2021).
• Anthony Sangiuliano, Can There Be a Unified Doctrine of Anti-Discrimination Law in Canada?, (Journal of Law & Equality, Vol. 18, No. 1, 2022).
• Reva B. Siegel & Melissa Murray, Equal Protection and Abortion: Brief of Equal Protection Constitutional Law Scholars Serena Mayeri, Melissa Murray, and Reva Siegel as Amici Curiae in Support of Respondents in Dobbs v. Jackson Women's Health Organization, (September 20, 2021).
• Kenneth Grad, Civil Law Alternatives in the Fight Against Hate Speech: The Case Study of the Marcus Hyman Act, (forthcoming in Canadian Jewish Studies / Études juives canadiennes, Vol. 33, Spring 2022).
• John Picton, Lehtimäki v Cooper: Duty and Jurisdiction in Charity Law, ((2021)84 Modern Law Review 383 – 393).

From SmartCILP:

• Vanita Saleema Snow, Veiling and Inverted Masking, 36 Berkeley Journal of Gender, Law & Justice 115-149 (2021).
• Alyssa Penick, From Disestablishment to Dartmouth College v. Woodward: How Virginia's Fight over Religious Freedom Shaped the History of American Corporations, 39 Law & History Review 479-512 (2021).
• Emily J. Hutchison, Book Review. Popular Memory and Gender in Medieval England: Men, Women, and Testimony in the Church Courts, c. 1200–1500, by Bronach C. Kane, 39 Law & History Review 601-603 (2021).

Biden Releases Statement On Easter

President Biden earlier today released a Statement on Easter (full text) wishing a Happy Easter to all. The statement reads in part:

On this day and each day, we pray for ... peace, freedom, and the basic dignity and respect for all of God’s children. As we look ahead with His blessing, may we share a common hope for the future, reaffirm love and compassion for one another, and cherish the blessing of the dawn of new possibilities.

White House Issues Two Holiday Statements

The White House this morning issued two holiday statements. It announced (full text) the theme and activities for for the 2022 Easter Egg Roll to be held on April 18, saying in part:

The White House announced today the full program of activities for the 2022 White House Easter Egg Roll, a tradition dating back to 1878.  A teacher for more than 30 years, First Lady Jill Biden created this year’s event theme, “EGGucation!,” with the South Lawn to be transformed into a school community, full of fun educational activities for children to enjoy.

President Biden also issued a Statement on Passover (full text), saying in part:

This Passover, we hold in our hearts the people of Ukraine and those around the world whose heroic stand against tyranny inspires us all. The enduring spirit of this holiday continues to teach us that with faith, the driest desert can be crossed, the mightiest sea can be split, and hope never stops marching towards the promised land. 

Second Gentleman Emhoff Is At Center Of White House Passover Celebrations

The Jewish festival of Passover begins at sundown this evening. Yesterday, the White House held a virtual Seder which was streamed live and is available on YouTube. Labelled "The People's Seder," Jewish Americans from around the country spoke or made presentations.  The Seder was hosted by Second Gentleman Doug Emhoff and was emceed by Chanan Y. Weissman, the White House’s liaison to the Jewish community. Tonight, Vice President Harris and Emhoff, who is Jewish, will host a Seder at the Vice President's official residence. According to CNN:

Harris told Israeli President Isaac Herzog during their phone call Thursday that she would hold a Seder in person at the Naval Observatory, according to a White House official.

The official said Harris and Emhoff will be joined by Jewish members of their staff and their loved ones.

$400,000 Settlement In Favor Of Prof Who Refused To Recognize Student's Gender Transition

After the U.S. 6th Circuit Court of Appeals in 2021 held that Shawnee State University violated the free speech and free exercise rights of a philosophy professor when the school insisted that Professor Nick Meriwether address a transgender student by her preferred gender pronoun, a settlement has been reached in the case. According to a press release from ADF, the university agreed to pay $400,000 in damages plus attorneys' fees. Also, according to the press release:

As part of the settlement, the university has agreed that Meriwether has the right to choose when to use, or avoid using, titles or pronouns when referring to or addressing students. Significantly, the university agreed Meriwether will never be mandated to use pronouns, including if a student requests pronouns that conflict with his or her biological sex.

A stipulation of voluntary dismissal was filed yesterday in Meriwether v. Trustees of Shawnee State University, (SD OH filed 4/14/2022).

Kentucky Legislature Overrides Veto Of Ban On Transgender Girls On Middle and High School Girl's Teams

Last week, Kentucky Governor Andy Beshear vetoed (veto message) SB 83 (full text) which bars transgender girls in grades 6 though 12 from competing on girls' athletic teams or activities in Kentucky public schools. As reported by the Courier Journal, yesterday the Kentucky legislature overrode the governor's veto.

State Department Issues 2021 Report On Human Rights Practices Around The World

On Tuesday, the State Department released the 2021 Country Reports on Human Rights Practices. This year's reports cover 198 countries and territories. While these reports include information on the status of religious freedom in the countries surveyed, the State Department also issues a report each year focused specifically in International Religious Freedom. The 2021 Report on International Religious Freedom will be issued later this year.

Sikhs Sue Marine Corps For Religious Accommodation

On Monday, suit was filed against the Marine Corps and the Defense Department by four Sikh recruits who are seeking an accommodation that would allow them to wear religious beards and turbans while serving in the Marines. The complaint (full text) in Toor v. Berger, (D DC, filed 4/11/2022), claims that the Marine Corps treatment of plaintiffs violates their rights under RFRA as well as the 1st and 5th Amendments. The Sikh Coalition issued a press release announcing the filing of the lawsuit.

Plaintiff's Ban From Space Center Upheld

In Duvall v. United States Space and Rocket Center, (ND AL, April 11, 2022) an Alabama federal district court dismissed claims that plaintiff's free exercise, free speech and freedom of assembly rights were violated when he was banned from the Space Center's property. The ban was imposed after plaintiff was trying at the Center "to bust open Seal No. 7 of the Holy Bible.”

New Alabama Ban On Gender Transition Procedures For Minors Is Challenged

Suit was filed last week in an Alabama federal district court challenging SB 184, the Alabama Vulnerable Child Compassion and Protection Act (full text), which prohibits medical procedures or the prescription of drugs for a minor child to alter the child's gender or delay puberty. The law was given final passage by the legislature on April 7 and signed by the governor on the next day. Parents of two transgender teenagers and two physicians filed suit 3 days later. The complaint (full text) in Ladinsky v. Ivey, (ND AL, filed 4/11/2022), contends that the law is pre-empted by a provision in the Affordable Care Act, that the law violates equal protection, parents rights to direct medical care of their children, and is void for vagueness. Courthouse News Service reports on the lawsuit.

Recent Articles of Interest

 From SSRN:

• Scott D. Gerber, Liberal Originalism in Connecticut Constitutional Interpretation, (Quinnipiac Law Review, Forthcoming).
• Marc Spindelman, Dobbs' Dilemma (Why Justice Brett Kavanaugh's Ideal of 'Scrupulous Neutrality' in Dobbs is a Pipe Dream), (National Law Journal (March 31, 2022)).
• Alexander Gouzoules, Clouded Precedent: Tandon v. Newsom and its Implications for the Shadow Docket, (Buffalo Law Review Vol. 70, No. 87 (2022)).
• Damonta Morgan & Austin Piatt, Making Sense of the Ministerial Exception in the Era of Bostock, (University of Illinois Law Review, Vol. 2022, No. 26, 2022).
• Jennifer Levi & Kevin M. Barry, Transgender Rights & the Eighth Amendment, (Southern California Law Review, Vol. 95, No. 109, 2021).
• Yvonne Lindgren, The Fathers’ Veto and Fatherhood As Property, (February 24, 2022).

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

• Destiny Aisekhaghe, ‘The Right to Freedom of Marriage and the Constitutionality of the Prohibition of Same Sex Marriage in Nigeria’: Another View, (February 27, 2022).
• Nehaluddin Ahmad & Norulaziemah binti Haji Zulkiffle, Discriminatory Policies and Laws Target Indian Muslim Minorities in the Recent Time: A Socio-Legal Study, (Law and Humanities Quarterly Reviews, Vol.1 No.2 (2022)).
• Yifat Bitton & Tamar Kricheli Katz, Disparities on the Basis of Nationality, Ethnicity and Gender in Road Accident Compensation in Israel, (Journal of Law and Courts 2022).
• David Gilchrist, Better Financial Reporting for Australian NFPs, (March 2, 2022).

Deputy Sheriff May Be Liable For Failing To Stop Fellow Officer From Carrying Out Coercive Baptism

In Riley v. Hamilton County Government, (ED TN, April 7, 2022), a Tennessee federal district court refused to dismiss an Establishment Clause, as well as a 4th Amendment, claim against Deputy Sheriff Jacob Goforth for his role in Deputy Sheriff Daniel Wilkey's baptism of Shandle Riley. Wilkey had pulled Riley over for a traffic stop and discovered that she had marijuana in her car. After searching Riley and her car, Wilkey began to talk with Riley about religion, asking her if she had been baptized. According to the court:

Wilkey told her “God [was] talking to him” and assured her that, if she got baptized, he would only write her a citation and she would be free to go about her business.... According to Riley, Wilkey also indicated that he would speak at court on her behalf if she agreed.... Riley decided to go along with this plan because she“[did not] want to go to jail.” ... She also “thought [Wilkey] was a God-fearing, church-like man who saw something . . . in [her], that God talked to him,” and testified that “it felt good to believe that for a minute.”

Wilkey asked another deputy on duty, Jacob Goforth, to witness his baptism of Riley. According to the court: 

any reasonable officer would have recognized that coerced participation in a Christian baptism—an overtly religious act with no secular purpose—was unlawful.... There are genuine disputes of material fact concerning whether Riley was coerced into the baptism, whether she would have faced harsher penalties had she refused to be baptized, and whether Goforth should have known that Riley was being coerced. This is enough to preclude summary judgment on this issue....

Goforth had fair warning that he had a duty to intervene to stop constitutional violations of this nature. And a reasonable jury could conclude that Goforth had both notice of the violation and an opportunity to stop the baptism. Accordingly, Goforth is not entitled to summary judgment on Riley’s First Amendment claim....

The court also held that that Goforth was not entitled to qualified immunity on Riley's claim of an unreasonable seizure.

5th Circuit Hears Oral Arguments In Texas Courtroom Prayer Case

On Tuesday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Freedom From Religion Foundation v. Mack. (Audio of full oral arguments). In the case, a Texas federal district court held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain violates the Establishment Clause. (See prior posting.)  Last July, the 5th Circuit granted a stay pending appeal of the Texas district court's declaratory judgment order. (See prior posting.)

Oklahoma Passes Bill Outlawing Almost All Abortions

On Wednesday, the Oklahoma legislature sent to the governor for his signature, SB612 (full text). The bill provides in part:

1. Notwithstanding any other provision of law, a person shall not purposely perform or attempt to perform an abortion except to save the life of a pregnant woman in a medical emergency.

2. A person convicted of performing or attempting to perform an abortion shall be guilty of a felony punishable by a fine not to exceed... $100,000.00 ... or by confinement ... for a term not to exceed ten ... years, or by such fine and imprisonment.

3.  This section does not: a. authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child....

NPR reports on the legislation.

Alabama Legislature Passes Bill On Bathrooms and LGBT Instruction In Public Schools

Yesterday the Alabama legislature gave final passage to, and sent to the governor for her signature, HB322 (full text). The bill, with certain exceptions, requires:

A public K-12 school shall require every multiple occupancy restroom or changing area designated for student use to be used by individuals based on their biological sex.

The bill also provides:

... [I]ndividuals providing classroom instruction to students in kindergarten through the fifth grade at a public K-12 school shall not engage in classroom discussion or provide classroom instruction regarding sexual orientation or gender identity in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.

Two Suits Challenge Michigan's 1931 Abortion Ban

Planned Parenthood and a Michigan abortion provider filed suit yesterday in the Michigan Court of Claims seeking to invalidate Michigan's 1931 statute that outlaws all abortions, except those necessary to save the life of the pregnant woman.  The complaint (full text) in Planned Parenthood of Michigan v. Attorney General of the State of Michigan, (Ct.Cl., filed April 7, 2022), contends that the statute violates various provisions of the Michigan Constitution.  ACLU issued a press release announcing the lawsuit. Even though Attorney General Dana Nessel is named as defendant in the lawsuit, she issued a statement saying in part:

I will not use the resources of my office to defend Michigan's 1931 statute criminalizing abortion.

WMUK expands on Nessel's position:

She says her office would not defend the abortion ban using a process that assigns teams of attorneys to argue both sides of a legal controversy. Nessel says she would only do that if ordered to by a court. “I will not enforce it and neither will I defend it,” she said. “I will take no part in driving women back into the dark ages and into the back alleys.”

Nessel says she will leave it up local prosecutors to defend their ability to enforce an abortion ban in their counties if they want to do that. And the Democratic attorney general says she would not object if Republicans in the Legislature want to join the case and take on the role of defending the state’s abortion ban.

Meanwhile, yesterday Michigan Governor Gretchen Whitmer filed another lawsuit challenging the 1931 abortion ban. A press release from her office, describing the lawsuit, says in part:

Today, Governor Gretchen Whitmer filed a lawsuit and used her executive authority to ask the Michigan Supreme Court to immediately resolve whether Michigan’s Constitution protects the right to abortion....

The lawsuit asks the court to recognize a constitutional right to an abortion under the Due Process Clause of the Michigan Constitution.  It also asks the court to stop enforcement of the 1931 Michigan abortion ban. The abortion ban violates Michigan’s due process clause, which provides a right to privacy and bodily autonomy that is violated by the state’s near-total criminal ban of abortion. It also violates Michigan’s Equal Protection Clause due to the way the ban denies women equal rights because the law was adopted to reinforce antiquated notions of the proper role for women in society.

Seventh Day Adventist Can Proceed With Title VII Suit

In Weston v. Sears, (SD OH, April 5, 2022), an Ohio federal magistrate judge recommended that plaintiff, a Seventh Day Adventist, be permitted to proceed in forma pauperis with her Title VII claim for religious discrimination.  She was fired for failing, until after the end of her Sabbath, to return multiple phone calls from her manager. However plaintiff is required to exhaust her administrative remedies by filing charges with the EEOC or her state agency.

European Court Says Jehovah's Witnesses Were Wrongly Denied Tax Exemption

In Affaire Assemblée chrétienne des Témoins de Jéhovah d’Anderlecht et autres c. Belgique, (ECHR, April 5, 2022), the European Court of Human Rights ruled in favor of a Jehovah's Witnesses congregation in Belgium that was denied a property tax exemption for property they used for religious worship. The regional tax law gave exemptions only to "recognized religions".  Jehovah's Witnesses were not recognized. According to the Court's press release:

The Court held that since the tax exemption in question was contingent on prior recognition, governed by rules that did not afford sufficient safeguards against discrimination, the difference in treatment to which the applicant congregations had been subjected had no reasonable and objective justification. It noted, among other points, that recognition was only possible on the initiative of the Minister of Justice and depended thereafter on the purely discretionary decision of the legislature. A system of this kind entailed an inherent risk of arbitrariness, and religious communities could not reasonably be expected, in order to claim entitlement to the tax exemption in issue, to submit to a process that was not based on minimum guarantees of fairness and did not guarantee an objective assessment of their claims.

Preacher's Challenge To Large Group Vigils On Capitol Grounds Fails

In Mahoney v. United States Capitol Police Board, (D DC, April 5, 2022), a D.C. federal district court refused to grant a preliminary injunction to a clergyman who was denied a permit to hold a large prayer vigil on part of the Capitol grounds.  Groups of 20 or more were permitted at that location only if sponsored by a member of Congress. The court rejected plaintiff's selective enforcement claim, saying in part:

Members of Congress sponsoring or organizing demonstrations on the Capitol Grounds present “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.”...  Consider the numerous ways in which Members are different from non-Members while on the Capitol Grounds. In such a setting, for instance, the Member is at her workplace, she enjoys private access to many areas that are otherwise restricted, and she is carrying out her unique constitutional duties as a legislator and representative of her constituents. Numerous legal principles recognize this reality and accord Members unique status while on the Capitol Grounds.

The court also found that plaintiff was unlikely to succeed on his freedom of assembly claim. 

Biden Nominates Kalpana Kotagal For EEOC Commissioner

President Biden yesterday sent to the Senate the nomination of  Kalpana Kotagal to be a Member of the 5-member Equal Employment Opportunity, replacing Janet Dhillon whose term is expiring July 1. Kotagal is a partner at Washington, D.C. law firm of Cohen Milstein and is a member of the firm’s Civil Rights & Employment practice group. The EEOC enforces employment discrimination laws, including laws barring religious discrimination in employment.