Hawaii County's Denial of Permit to Temple Did Not Meet Strict Scrutiny Test

In Spirit of Aloha Temple v. County of Maui, (D HI, Aug. 11, 2023), in a case that has been in litigation for more than seven years, a Hawaii federal district court entered partial summary judgment for plaintiffs on one issue in the case. It held that the state had not met the strict scrutiny test on plaintiffs RLUIPA, free exercise and equal protection challenges to the denial of a special use permit to allow Spirit of Aloha Temple to use agriculturally-zoned land for a church and several other church-operated facilities including a wedding venue site. The court concluded that the denial was neither narrowly tailored nor the least restrictive means of furthering a compelling governmental interest. However, a number of other issues remain to be decided before determining whether there were statutory or constitutional violations. There remains the question of whether denial of the special use permit imposed a substantial burden on the Temple. According to the court, for purposes of RLUIPA that, in turn, depends on whether plaintiffs had a reasonable expectation of being able to build a religious institution on the land when they acquired it. For plaintiffs' federal and state free exercise claims, plaintiffs must show that their operation of the property was rooted in religious belief and that the county had an intent to discriminate. The court went on to hold that the RLUIPA non-discrimination (as opposed to its "substantial burden") provisions do not turn on strict-scrutiny review, but instead on whether there was religious discrimination.  When the regulation is neutral, that requires showing an intent to discriminate.

Near-Final Tally of Ohio Issue 1

With over 99% of the votes now counted, Ohio's Issue 1 failed on Tuesday by a vote of 57.01% against and 42.99% in favor. (Results from Secretary of State.) Issue 1 would have made it more difficult for voters to amend the Ohio Constitution, among other things by raising the required popular vote to 60% instead of the current majority.  The immediate aim of proponents of Issue 1 was to make it more difficult to pass a Reproductive Rights amendment that will be on the November ballot.

Expelled Church Members' Claims Barred by Statute of Limitations

In Boyett v. First Baptist Church of Bossier, (LA App., Aug. 9,2023), a Louisiana state appellate court in a 2-1 decision affirmed the trial court's holding that Louisiana's statute of limitations (called "prescription" in Louisiana law) barred a suit by members who had been expelled from the church.  Plaintiffs claimed that the Articles under which they were expelled had been improperly adopted.  Judge Hunter dissenting argued that the majority applied the wrong statute of limitations, so that the trial court should reach the merits of the case using the "neutral principles of law" approach.  He contended that the ecclesiastical abstention doctrine did not require dismissal of the case, and that the court should reverse the trial court's dismissal and remand the case for the taking of additional evidence.

Catholic Couple Sues Foster Care Agency For Religious Discrimination [Revised]

 A Catholic couple has filed suit in a Massachusetts federal district court against the Massachusetts Department of Children and Families claiming free exercise and free speech violations. Plaintiffs were denied a foster care license because they would not be affirming to a child who identified as LGBTQIA.  The complaint (full text) in Burke v. Walsh, (D MA, filed 8/8/2023), alleges in part:

As faithful Catholics, the Burkes believe that all children should be loved and supported, and they would never reject a child placed in their home. They also believe that children should not undergo procedures that attempt to change their God-given sex, and they uphold Catholic beliefs about marriage and sexuality....

In effect, DCF has interpreted its regulations, which require foster families to “support[] and respect[] a child’s sexual orientation or gender identity,” 110 CMR 7.104(1)(d), as an absolute bar for Catholics who agree with the Church’s teaching on sex, marriage, and gender.

Becket issued a press release announcing the filing of the lawsuit. 

[Note-- this post was erroneously published previously with a title but no text.]

11th Circuit: PLRA Exhaustion Requirement Does Not Include Filing of Rule Change Petition

In Sims v. Secretary, Florida Department of Corrections,(11th Cir., July 31, 2023), the U.S. 11th Circuit Court of Appeals held that the Prison Litigation Reform Act's requirement that prisoners exhaust available administrative remedies before filing suit only requires exhaustion of the prison system's grievance process.  A prisoner does not also have to file a petition with the Department of Corrections seeking a change in its rules.  At issue was the Florida prison system's denial of a request by a Muslim inmate for an exemption from grooming rules that require beards be no longer than one-half inch.

Suit By Christian Ministry Says Quebec Wrongly Cancelled Its Use of Convention Center

In Canada, suit was filed last week in a Quebec trial court by the Christian organization Harvest Ministries International challenging the province's cancellation of the organization's contract reserving the Quebec City Convention Centre for its Faith, Fire and Freedom Rally.  According to the Motion to Institute Proceedings (full text) in Harvest Ministries International v. Proulx, (Quebec Dist. Ct., filed 8/2/2023), the reservation was cancelled because Harvest Ministries anti-abortion views contradict Quebec's fundamental principles, even though the Rally itself was not an anti-abortion event.  The suit alleges that the cancellation violates Harvest Ministries' freedom of religion, expression and assembly and its right equality protected by Quebec's Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms. It seeks damages of $212,000. The Justice Centre For Constitutional Freedoms issued a press release announcing the filing of the lawsuit.

FSIA Precludes Suit Against Hungary for Property Confiscated from Its Jewish Population In Holocaust

In Simon v. Republic of Hungary, (DC Cir., Aug. 8, 2023), in a case on remand from the Supreme Court, the Court of Appeals for the D.C. Circuit held that under the Foreign Sovereign Immunities Act, the government of Hungary may not be sued in United States Courts for taking of property from its own nationals. The court said in part:

In 1944, as World War II neared its end, the Hungarian government implemented an accelerated campaign to exterminate its remaining Jewish population. Within a matter of months, the government systematically executed over half a million Jews—roughly two-thirds of the Jewish population in Hungary at the war’s outset. This state-perpetrated genocidal campaign ranks among the greatest crimes in human history.

The questions raised by these appeals bear on whether survivors of the Hungarian Holocaust may hale the Hungarian government and its instrumentalities into United States courts to answer for a subset of the wrongs they committed—namely, their confiscation of property from victims of the Holocaust. The plaintiffs invoke the Foreign Sovereign Immunities Act’s expropriation exception as a means to pierce the Hungarian state’s sovereign immunity and assert jurisdiction in federal district court. Defendants object that the exception is inapplicable....

Cognizant of the Supreme Court’s recent holding that “a country’s alleged taking of property from its own nationals” generally falls outside the scope of the Foreign Sovereign Immunities Act’s expropriation exception ..., the plaintiffs in these suits assert they were not Hungarian nationals at the time of the takings at issue. They instead claim that they were either stateless or Czechoslovakian nationals. The district court dismissed the claims of the plaintiffs asserting statelessness but concluded that most of the plaintiffs asserting Czechoslovakian nationality could proceed. 

We largely affirm. Like the district court, we conclude that the plaintiffs claiming statelessness ... have not made out a recognized claim within a Foreign Sovereign Immunities Act exception....

We likewise affirm the district court’s denial of the defendants’ motions to dismiss the claims of some of the plaintiffs asserting Czechoslovakian nationality, with a few exceptions....

Judge Randolph dissented as to the plaintiffs claiming Czechoslovakian nationality.

 

In Contempt Sanction, Court Orders Attorneys To Attend Religious Liberty Training

In Carter v. Transport Workers of America, Local 556, (ND TX, Aug.7, 2023), a Texas federal district court ordered sanctions against Southwest Airlines for its failing to comply with an earlier Order in the case that found the Airline had violated Title VII when it fired a flight attendant because of  her social media messages about her religiously-motivated views on abortion. Southwest claimed that the flight attendant had violated the company's social media policy regarding civility. In its current Order, The court set out a specifically worded communication that the Airline is required to send to its flight attendants regarding its obligation under Title VII not to engage in religious discrimination. The court also ordered that three of the Airline's attorneys who were responsible for non-compliance with the earlier Order attend at least 8 hours of religious liberty training conducted by the Christian legal non-profit Alliance Defending Freedom. The court explained, in part:

When a litigant “does not appear to comprehend” a legal concept, training in “the relevant subject area” constitutes a “particularly apropos” sanction.

[Thanks to Joel Taubman for the lead.]

Challenges To School's Transgender Bathroom Policy Dismissed

In Doe No. 1 v. Bethel Local School District Board of Education, (SD OH, Aug. 7, 2023), an Ohio federal district court, in a 52-page opinion, dismissed a wide-ranging group of challenges-- including due process, equal protection and free exercise challenges-- to a school board policy allowing students to use school bathrooms corresponding to their gender identity. The court said in part:

All Plaintiffs claim that the School District is “providing communal intimate facilities for transgender students in accordance with their believed core identity while denying the Muslim and Christian families communal intimate facilities in accordance with their believed core identity.”...

Parents have a right to make the initial choice about where their child attends school.... But inventing a constitutional right to strike down a state school’s choices about curriculum and school operations would impermissibly extend that right and, in our pluralistic society, require State schools to cater to inconsistent obligations from parents who may have different moral objections about how a school operates.... The substantive protections in the Due Process Clause do not extend so far....

The Muslim and Christian Plaintiffs—parents and students alike—allege that the School District’s actions have burdened the exercise of their religion.... Namely, both student groups have sincerely held religious beliefs that prevent them from sharing bathrooms with the opposite gender and receiving instruction about LGBTQ+ beliefs.... In exposing the Muslim and Christian Student Plaintiffs to the prospect that they will encounter a transgender individual in the bathroom, the School District has allegedly indirectly burdened the exercise of their faith because they have caused them to refrain from using the bathroom.... As to the Muslim and Christian Parent Plaintiffs, they allege that the School District’s actions are denying them “the ability to exercise their good-faith religious beliefs in raising their children in [their] faith.”... 

... [T]he School District’s policy ... is neutral and generally applicable. As a reminder, the School District announced that it would allow students to use the bathroom that corresponded with their gender identity..... This is (1) facially neutral because it makes no reference, overt or implied, to religion or religious conduct; and (2) generally applicable because it restricts religious and nonreligious conduct equally—every student gets to use the bathroom that corresponds with their gender identity.....

Moreover, Plaintiffs’ complaint does not hint of any plausible fact that suggests the School District is using this policy to suppress religious beliefs, as the School District’s actions make no mention of, and do not reference, religion whatsoever....

Because the bathroom policy is generally applicable, it is subject only to rational basis review. 

Cincinnati Enquirer reports on the decision.

Proposed Regulations Under Pregnant Workers Fairness Act Include Abortion as Pregnancy Related Condition

Yesterday the EEOC filed for publication in the Federal Register Proposed Rules (full text) under the Pregnant Workers Fairness Act. The Act requires employers with 15 or more employees to provide reasonable accommodations for employees and applicants arising out of pregnancy, childbirth or related medical conditions, absent undue hardship on the operation of the business. "Related medical conditions" are defined by the proposed regulations as including "termination of pregnancy, including via miscarriage, stillbirth, or abortion." Anti-abortion advocacy organizations say the proposed regulations will force employers to violate their religious beliefs. (See ADF press release.)

9th Circuit: Fraud Claim Against LDS Church By Prominent Donor May Move Ahead

In Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (9th Cir., Aug. 7, 2023), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, reversed a California federal district court's dismissal of a fraud claim brought against the LDS Church by James Huntsman, a prominent former member who had contributed over $2.6 million in tithes to the Church. The court described Huntsman's claim:

Huntsman alleged that the Church represented that tithing money was not used to finance commercial projects, but that, in fact, the Church used tithing money to finance a shopping mall development and to bail out a troubled for-profit life insurance company owned by the Church.

The court rejected the Church's claim that the suit was barred by the ecclesiastical abstention doctrine, saying in part:

In the case before us, we are not required to rely on or interpret the Church’s religious teachings to determine if it misrepresented how it was using tithing funds. Nor are we required to examine Huntsman’s religious beliefs about the appropriate use of church money. 

Instead, as presented to us, the questions are secular. The questions are whether the Church’s statements about how it would use tithing funds were true, and whether Huntsman reasonably relied on those statements when he made tithing contributions. A court or jury can answer these questions based on secular evidence and analysis.....

The majority then concluded that the district court had erred in granting summary judgment to the Church, saying in part:

The question before the district court, and before us, is whether a reasonable juror could conclude that the five statements by church officials and in church publications amounted to fraudulent misrepresentation by the Church.... Huntsman contends that a reasonable juror could conclude from the five statements that the Church fraudulently misrepresented that neither tithing principal nor earnings on tithing principal were being or would be used to finance the City Creek Mall project. We agree.

Judge Korman dissented in part, agreeing with the district court that no reasonable juror could find that the Church had misrepresented the source of funding for the mall project.

2nd Circuit Upholds Connecticut's Repeal of Religious Exemptions from Vaccination Requirements

In We the Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (2d Cir., Aug. 4, 2013), the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision, upheld the constitutionality of Connecticut's repeal of religious exemptions from its mandatory vaccination laws, while retaining medical exemptions. The majority said in part:

 At bottom, plaintiffs' argument that the Act is not neutral under Smith boils down to the proposition that repealing any existing religious exemption is hostile to religion per se.... We find this argument unpersuasive, for four reasons....

Plaintiffs and the dissent suggest that further development of the factual record might reveal that medical exemptions and religious exemptions are comparable for Free Exercise Clause purposes. But because the Act's medical exemptions further the State's interest in a way a religious exemption would not, permitting plaintiffs to proceed to discovery would require more of the State than what the Supreme Court has prescribed.

Judge Bianco dissented in part, saying in part:

Notwithstanding these many fact-intensive questions regarding whether this law satisfies the general applicability requirement under Smith, the majority opinion closes the courthouse doors to plaintiffs on their free exercise claim on a motion to dismiss before any discovery and before plaintiffs had an opportunity to present evidence bearing on the general applicability requirement in this particular context. The majority opinion does so by concluding, inter alia, that medical and religious exemptions are not comparable for free exercise purposes as a matter of law. Neither Supreme Court precedent nor this Court’s jurisprudence allows a court to so summarily cast aside the fundamental constitutional right of individuals to the free exercise of religion. In reaching this conclusion ... the majority opinion ignores two recent decisions by this Court addressing similar COVID-19 vaccination requirements.

AP reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Asma Uddin, Religious Liberty Interest Convergence, (William & Mary Law Review, Vol. 64, No. 1, 2022-2023).
• Nathon B. Oman,  'A Welding Link of Some Kind': A Minimalist Theology of Same-Sex Marriage Sealings, (in Nathan B. Oman, Law and the Restoration: Law and Latter-day Saint History, Thought, and Scripture (Salt Lake City, Utah: Kofford Books, Forthcoming)).
• Aaron Tang, Lessons From Lawrence: How "History" Gave Us Dobbs—And How History Can Help Overrule It, (133 Yale L.J. Forum ___ (forthcoming 2023)).
• Daffa Rizqi Prayudya & Solahuddin Al-Ayubi, Islamic Central Bank Digital Currency (CBDC) Design, (Al-Infaq: Jurnal Ekonomi Islam (2023).
• Milena Kojić, Markus Vogl, Petar Mitić & Aida Hanić, Nonlinear Dynamics of Islamic Fixed Income Securities: Evidence from Generalized Chaos Analysis Framework, (June 30, 2023).

Australian State's Ban on Kirpan in Schools Is Invalid

 In Athwal v. State of Queensland, (Queensland Sup. Ct., Aug. 1, 2023), a 3-judge panel of the Supreme Court of the Australian state of Queensland held invalid a provision in the Weapons Act that specifically provides carrying a knife for religious purposes is not one of the exceptions to the ban on possessing a knife in a school. The court concluded that the provision, which has the effect of barring Sikhs from wearing a kirpan, in a school, is inconsistent with a provision of the national Commonwealth Racial Discrimination Act. Justice Dalton filed a concurring opinion. New Indian Express reports on the decision.

9th Circuit: Fire Chief's Dismissal Was Not Motivated by Religious Discrimination

In Hittle v. City of Stockton, California, (9th Cir., Aug. 4, 2023), the U.S. 9th Circuit Court of Appeals affirmed a district court's dismissal of a religious discrimination suit under Title VII and the California Fair Employment and Housing Act brought by the city's former Fire Chief.  Among the several reasons given to plaintiff by the city for his dismissal was his attendance at a religious leadership event on city time and with use of a city vehicle, and his approval for three other Department employees to also attend. The city had also received anonymous complaints that plaintiff gave favored treatment to other employees who were part of his Christian coalition. The court said in part:

Hittle must demonstrate that his religion was “a motivating factor” in Defendants’ decision to fire him with respect to his federal claims, ..., and that his religion was “a substantial motivating factor” for his firing with respect to his FEHA claims....

[B]ecause neither Montes nor Deis made any remarks demonstrating their own hostility to religion, but focused on the Summit’s lack of benefit to the City and other evidence of Hittle’s misconduct, Hittle failed to demonstrate that hostility to religion was even a motivating factor in his termination....

... [B]ased on the record before us, the district court’s granting of summary judgment in Defendants’ favor was appropriate where Defendants’ legitimate, non-discriminatory reasons for firing Hittle were, in sum, sufficient to rebut Hittle’s evidence of discrimination, and Hittle has failed to persuasively argue that these non-discriminatory reasons were pretextual.

In a press release, First Liberty Institute said it would seek review of the 9th Circuit panel's decision.

Trial Court Expands Exemptions in Texas Abortion Law; Appeal Suspends Ruling

In Zurawski v. State of Texas, (TX Dist. Ct., Aug. 4, 2023), a Texas state trial court issued a temporary injunction barring enforcement of Texas' abortion ban in more situations than the limited exceptions in the statute.  The court restrained enforcement against any physician who provides abortions where the pregnant person has a complication that poses a risk of infection or makes continuing a pregnancy unsafe, has a condition exacerbated by pregnancy that cannot be effectively treated during pregnancy or where the fetus is unlikely to survive the pregnancy.

The court said in part:

The Court further finds that any official’s enforcement of Texas’s abortion bans as applied to a pregnant person with an emergent medical condition for whom an abortion would prevent or alleviate a risk of death or risk to their health (including their fertility) would be inconsistent with the rights afforded to pregnant people under Article I, §§ 3, 3a, and/or 19 of the Texas Constitution and therefore would be ultra vires.

The state immediately filed a Notice of Accelerated Interlocutory Appeal which apparently has the effect under Texas law of suspending the trial court's temporary injunction pending action by the state Supreme Court. (Attorney General's press release.)  NPR reports on the decision. [Thanks to Thomas Rutledge for the lead.]

New Jersey Issues Guidance On Public Accommodation Law Coverage After 303 Creative Decision

Earlier this week (July 31), the New Jersey Division on Civil Rights issued a Guidance on the New Jersey Law Against Discrimination Following the U.S. Supreme Court’s Decision in 303 Creative LLC v. Elenis (full text) (press release). The Release says in part:

The Supreme Court’s ruling exempts from anti-discrimination laws like the LAD only a narrow set of services offered by some places of public accommodation. In order to assert an exemption, at a minimum, a public accommodation must establish that (1) its creative services are “original” and “customized and tailored” for each customer; (2) the creation is “expressive” and expresses the creator’s own First Amendment-protected speech; and (3) the public accommodation’s refusal to provide the creative service to a customer is based on the message it conveys, not the customer’s identity or protected characteristic standing alone. As a practical matter, many of the products or services that meet that narrow definition—for example, a documentary film created by a movie director—are created by artists or businesses that fall outside the LAD’s definition of a public accommodation already. Moreover, because the overwhelming majority of places of public accommodation do not provide “customized,” “original,” and “expressive” products or services to the public that express the creator’s own speech, the Court’s decision does not exempt most places of public accommodation—or most goods and services—from the LAD. That is why, as the Court itself acknowledged, state civil rights law still applies to “a vast array of businesses” selling “innumerable goods and services.”

[Thanks to Jeff Pasek for the lead.] 

Application For Tax Exemption Does Not Violate Organization's Free Exercise Rights

In Children of the Kingdon v. Central Appraisal District of Taylor County, (TX App, Aug. 3, 2023), a Texas state appeals court affirmed a $32,000 property tax assessment against a religious organization that had not filed an application for a tax exemption. Responding to the organization's free exercise claim, the court said in part:

[W]e construe Appellants’ ... argument to be that the Free Exercise Clause of the First Amendment protects their religious belief to not enter into written agreements with the government; thus, they would not be required to file an application for a property tax exemption in order to not be held liable for the payment of property taxes....

Here, Appellant asserts that the requirement that one must file an application for a property tax exemption violates their rights guaranteed by the Free Exercise Clause, because it is their religious belief to be governed separately from secularism and thus not enter into any agreement or accept any privilege from secular governments. We disagree with Appellants assertion and hold that this requirement does not violate their First Amendment rights. 

First, the exemption application requirement is neutral. It is not specifically directed at or to a religious practice; instead, the requirement is a means of protecting the equality and uniformity of the property tax scheme as guaranteed by the Texas constitution. Second, the requirement is generally applicable....

Ecclesiastical Abstention Doctrine Bars Court from Deciding Dispute Over Parish Funds

 In Salado v. Roman Catholic Diocese of El Paso, (TX App, Aug. 2, 2023), a Texas state appellate court held that the ecclesiastical abstention doctrine prevents the court from deciding whether funds raised by parishioners to build a new church building had been wrongfully misappropriated by the diocese. Parishioners had raised some $1.4 million, but the bishop decided that a new church should not be built and instead merged the parish with another one and transferred the funds to the new merged parish. The court said in part:

To resolve the dispute of whether the funds raised by the Parishioners on behalf of Sant Jose Parish were misappropriated when they transferred to the new Saint John Paul II Parish would require this Court to interpret Cannon Law and policies of the Roman Catholic Church regarding the rights and authority of bishops regarding the patrimony of a parish. Churches have a fundamental right “to decide for themselves, free from state interference, matters of church government[.]”

Denying Satanic Temple's Invocation Request Upheld

In The Satanic Temple, Inc. v. City of Boston, (D MA, July 31, 2023), a Massachusetts federal district court upheld Boston City Council's refusal to invite a representative of The Satanic Temple ("TST")  to deliver an invocation at a City Council meeting. The court said in part:

TST can prevail on its Establishment Clause claim if the evidence shows that the City's denial of TST's request to give the invocation was based on TST's religious beliefs. The City provides ample evidence that the refusal to invite TST to give an invocation was not because of TST's religious beliefs. All of the evidence submitted suggests that individual City Councilors invited speakers who served their constituents and were active in their communities, and TST did not qualify as such....

While TST provides some evidence that it had been involved in the greater Boston community, which is the primary factor City Councilors consider when selecting invocation speakers, through “Menstruatin’ with Satan,” “Warmer than Hell,” and Boston Pride tabling, there is no evidence that the City Councilors knew of those activities, nor that those activities took place within the Councilors’ districts. Indeed, the evidence clearly conflicts with that conclusion.....

The emails sent from the public to the City Councilors fall short of supporting TST's discrimination claim. Emails from the public expressing disagreement with TST's beliefs —particularly where, as here, there is no evidence that any City Councilor responded to those emails—do not support an inference that City Councilors did not invite TST to give an invocation because they shared the same opinion as the senders....

The City Council's process—or lack thereof—for selecting invocation speakers is the most troublesome to the Court of all factors to consider regarding legislative prayer practices. There is no dispute that the selection of the invocation speaker is left to each individual City Councilor's discretion, and there are no formal written policies governing this procedure. This leaves ample room for abuse, which concerns the Court. However, the lack of a formal, written policy does not by itself create a constitutional problem (though the existence of one could provide neutrality-enforcing guidelines that would help avoid constitutional issues in the future), nor does the fact that the selection of speakers is left to the discretion of the individual Councilors.

The court also rejected a free exercise claim. [Thanks to Greg Chaufen for the lead.]