Trump's Anti-Muslim Statements Did Not Taint Passport Revocations

In Abuhajeb v. Pompeo, (D MA, March 31, 2021), a Massachusetts federal district court dismissed Establishment Clause and Equal Protection challenges, among others, to the 2019 revocation of the U.S. passports of five siblings who were born in Jordan and whose father is a U.S. citizen. Claiming that the passports were initially issued erroneously, the revocations took place 14 years after the passports were initially issued.  According to the court:

The Siblings argue that President Trump’s statements during his 2016 campaign and administration, the series of executive orders barring immigrants from mostly Muslim-majority countries from entering the United States, and the State Department’s corresponding actions revoking their passports in August 2019 demonstrate that they were the targets of a new “deliberate revocation policy” based on their race and religion.

Rejecting this argument, the court said in part:

Even if the Siblings have alleged circumstantial evidence of President Trump’s discriminatory intent, they have not alleged how that intent motivated the State Department’s decision to revoke their passports. The 2017 Travel Ban and extreme vetting for immigrant visa applicants program allege discriminatory intent against Muslim and non-white immigrants, but not U.S. passport holders in the Siblings’ positions. The Department of Justice’s increase in denaturalization cases may implicate the Siblings, but the government has not moved to strip their citizenship in the past year since revoking their passports.

Recent Articles of Interest

 From SSRN:

• Iddo Porat, The Starting at Home Principle: On Ritual Animal Slaughter, Male Circumcision and Proportionality, (Oxford Journal of Legal Studies, 2020).
• Margaret Chavez, Employing Smith to Prevent a Constitutional Right to Discriminate Based on Faith: Why the Supreme Court Should Affirm the Third Circuit in Fulton v. City of Philadelphia, (American University Law Review, Vol. 70, No. 3, Feb. 2021).
• Shubhank Patel, Anuparna Chatterjee & Rishi Raj Mukherjee, The Sisyphean Dilemma: Analyzing the Transient Landscape of Essential Practice Doctrine vis-a-vis Santhara, (International Journal of Legal Developments and Allied Issues, Vol 6, Issue 6 (2020).
• C. Christine Fair & Parina Patel, Barriers to Covenantal Pluralism in Bangladeshi Public Opinion, (The Review of Faith & International Affairs (2020).
• Kevin D. Brown, Annapurna Deborah Waughray, Lalit Khandare & Kenneth Glenn Dau-Schmidt, Bostock v Clayton County Game Changer: US Federal Employment Law Now Covers Caste Discrimination Based on Untouchability, (Forthcoming, New York University Review of Law & Social Change, Vol. 46, 2022).
• James G. Hodge & Emily Carey, Charting the Legality of Religious-based Exemptions to COVID-19 Vaccinations, (Berkley Forum. 2021; (online February 16)).
• Netta Barak Corren, Noam Gidron & Yuval Feldman, Majority Nationalism Laws and the Equal Protection of Minorities: Experimental and Observational Evidence from Israel, (March 31, 2021).
• Md Tasnimul Hassan, Criminalization of Cattle Slaughter and Individual Rights under the Indian Constitution, (November 5, 2020).

Biden Issues Holocaust Remembrance Proclamation

Today President Biden issued a Proclamation (full text) designating April 4 through April 11 as Days of Remembrance of Victims of the Holocaust.  The Proclamation reads in part:

On Yom HaShoah — Holocaust Remembrance Day — we stand in solidarity with the Jewish people in America, Israel, and around the world to remember and reflect on the horrors of the Holocaust. An estimated six million Jews perished alongside millions of other innocent victims — Roma and Sinti, Slavs, disabled persons, LGBTQ+ individuals, and others — systematically murdered by the Nazis and their collaborators in one of the cruelest and most heinous campaigns in human history....

I remember learning about the horrors of the Holocaust from my father when I was growing up, and I have sought to impart that history to my own children and grandchildren in turn. I have taken them on separate visits to Dachau, so that they could see for themselves what happened there, and to impress on them the urgency to speak out whenever they witness anti-Semitism or any form of ethnic and religious hatred, racism, homophobia, or xenophobia. The legacy of the Holocaust must always remind us that silence in the face of such bigotry is complicity — remembering, as Rabbi Abraham Joshua Heschel wrote, that there are moments when “indifference to evil is worse than evil itself.”

Survey On Anti-Semitism In U.S. Released

The Anti-Defamation League this week released its 2021 Survey on Jewish Americans’ Experiences with Antisemitism. It found:

Well over half (63 percent) of Jews in America have either experienced or witnessed some form of antisemitism in the last five years.

USCIRF Focuses On Financial Regulation of Religious Organizations

Earlier this week, the U.S. Commission on International Religious Freedom issued a Fact Sheet titled Controlling Civil Society's Pursestrings. The Fact Sheet focuses on the impact of financial regulation on religious organizations and religious freedom. It concludes:  

Around the globe, governments rely on excessive financial restrictions to hamper civil society actors.... Efforts to restrict foreign funding, or label civil society organizations as “foreign agents,” often reflect broader xenophobic policies under which religious minorities are targeted as dangerous foreign influences or potential fifth columns.

Financial harassment can take many forms, from attempts to delegitimize the work of foreign-funded civil society by enacting requirements to register as “foreign agents,” to imposing excessive and intrusive reporting requirements, as well as exorbitant fees and fines for religious activity, to seizing assets or religious property.... [T]he ability to solicit and receive financial contributions is an integral component of the freedom of religion or belief....

Biden Declaration of March 31 As "Transgender Day of Visibility"

Earlier this week, President Biden signed a Presidential Proclamation (full text) declaring March 31 as "Transgender Day of Visibility". The Proclamation reads in part:

Transgender Day of Visibility recognizes the generations of struggle, activism, and courage that have brought our country closer to full equality for transgender and gender non-binary people in the United States and around the world.  Their trailblazing work has given countless transgender individuals the bravery to live openly and authentically.  This hard-fought progress is also shaping an increasingly accepting world in which peers at school, teammates and coaches on the playing field, colleagues at work, and allies in every corner of society are standing in support and solidarity with the transgender community.

Synagogues Lose Suit Over Repealed Zoning Law

In Orthodox Jewish Coalition of Chestnut Ridge v. Village of Chestnut Ridge, New York, (SD NY, March 31, 2021), a New York federal district court dismissed a suit by Orthodox Jewish synagogues contending that the village's former zoning law violated RLUIPA, the free exercise clause and the New York constitution. The court held RLUIPA's safe harbor provision protects municipalities that correct their laws from damage suits under RLUIPA. It also dismissed plaintiffs' equal protection claim because they failed to show that the old zoning law was enacted with discriminatory intent. The court found that claims for prospective relief were moot and that certain other claims were not ripe.

Court Upholds NY Law Barring Discrimination Against Employees Because Of Reproductive Health Decisions

In Slattery v. Cuomo, (ND NY, March 31, 2021), a New York federal district court dismissed free exercise, free speech, freedom of association and vagueness challenges to a New York Labor Law §203-e  which prohibits employers from discriminating or taking retaliatory action against an employee because of the person's reproductive health decision making. The law was challenged by a pro-life crisis pregnancy center which required its employees to agree with, adhere to and convey the Catholic view on abortion and sexual relations outside of marriage. The court concluded that the law does not target the Catholic religion in violation of the free exercise clause. Rejecting plaintiffs' free speech challenge, the court said in part:

Section 203-e does not serve to limit any of Plaintiffs’ advocacy against abortion, promotion of certain religious views, and public arguments for particular versions of sexual morality. The statute does not prevent the Plaintiffs, who provide medical information to pregnant women, from telling those women that they should not get abortions, urging them not to use contraception, or telling them about Plaintiffs’ religious beliefs. The statute simply prohibits employers from taking employment action based on the reproductive health decisions of an employee or potential employee. Hiring, firing, or refusing to hire an employee is conduct, not speech, and the law does not implicate Plaintiffs’ First-Amendment rights in that.

Minister Sues To Hold Good Friday Vigil On U.S. Capitol Grounds

On Tuesday, a complaint was filed in D.C. federal district court by a Presbyterian minister who wants to host a prayer vigil on theWestern Terrace of the U.S. Capitol for Good Friday, as he did in 2020.  He was refused a permit because the Capitol grounds have been fenced off since the January 6 attack on the Capitol.  Plaintiff alleges that the denial of a permit violates his free speech, freedom of assembly, free exercise and other rights.  The complaint (full text) in Mahoney v. Pelosi, (D DC, filed 3/30/2021), alleges in part:

In closing the sidewalks and public areas around the Capitol, including the Lower Western Terrace Plaintiff seeks to utilize, Defendants have effectively created a no-speech zone around the nations Capitol. Defendants prevent any First Amendment activities on/in these areas, even though no specific threat to the Capitol has been identified in justification....

Defendants’ restrictions have specifically and explicitly targeted Plaintiff’s religious and “faith based” service and are thus not neutral on their face. Defendants have prohibited Plaintiff’s religious gathering while exempting a laundry list of other activities that occur at the Capitol, including media events, non-religious public gatherings, and various political and other events.

Fox News reports on the lawsuit. [Thanks to Scott Mange for the lead.]

North Dakota Enacts Law To Limit Restrictions On Religious Exercise During Health Emergencies

On March 29, North Dakota Governor Doug Burgum signed into law Senate Bill 2181 (full text) which limits the authority of the State Health Officer and the governor to issue disease control or other emergency orders that restrict the free exercise of religion.  Under the new law, an order may not:

(1) Substantially burden a person's exercise of religion unless the order is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest;

(2) Treat religious conduct more restrictively than any secular conduct of reasonably comparable risk, unless the government demonstrates through clear and convincing scientific evidence that a particular religious activity poses an extraordinary health risk; or

(3) Treat religious conduct more restrictively than comparable secular conduct because of alleged economic need or benefit.

Williston Herald reported on the legislature's passage of the bill.

9th Circuit Upholds California Limits On In-Home Bible Study Groups

In Tandon v. Newsom, (9th Cir., March 30, 2021), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, refused to issue an emergency injunction pending appeal to prevent enforcement of California's COVID-19 limitations against appellants' in-home Bible study and communal worship sessions. The majority said in part:

[T]he district court concluded that the State reasonably distinguishes in-home private gatherings from the commercial activity Appellants assert is comparable. For example, the district court found that the State reasonably concluded that when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting; that participants in a social gathering are more likely to be involved in prolonged conversations; that private houses are typically smaller and less ventilated than commercial establishments; and that social distancing and mask-wearing are less likely in private settings and enforcement is more difficult.... Appellants do not dispute any of these findings. Therefore, we conclude that Appellants have not established that strict scrutiny applies to the gatherings restrictions.

Judge Bumatay dissented, saying in part:

Even if studying scripture at home risks some level of transmission of COVID-19, the exemptions for barbershops, tattoo and nail parlors, and other personal care businesses reveal that less-restrictive alternatives are available to California to mitigate that concern. If the State is truly concerned about the “proximity, length, and interaction” of private gatherings, as it claims, it could regulate those aspects of religious gatherings in a narrowly tailored way. But the one thing California cannot do is privilege tattoo parlors over Bible studies when loosening household limitations.

Biden To Nominate First Muslim Federal Judge

On Tuesday, President Biden announced eleven nominees for federal judgeships. Among the nominees is  Zahid Quraishi who is to be nominated to the New Jersey federal district court where he is currently a magistrate judge.  As reported by Fox News, if confirmed by the Senate, Quraishi would become the first Muslim American to serve as a lifetime-appointed federal judge.

State Department Releases Country Reports On Human Rights

On Tuesday, the U.S. State Department released its 2020 Country Reports on Human Rights Practices. According to the Department:

The annual Country Reports ... cover internationally recognized individual, civil, political, and worker rights, as set forth in the Universal Declaration of Human Rights and other international agreements.

However for the most part the country reports cross refer to the Department's International Religious Freedom Reports for discussion of religious freedom issues. The 2020 Report on religious freedom has not yet been released.

LGBTQ+ Students Challenge Title IX Religious Institution Exemption

In a class action lawsuit filed earlier this week in an Oregon federal district court, 33 LGBTQ+ students enrolled at religious colleges that receive federal financial assistance challenge the constitutionality of the exemption in Title IX for educational institutions controlled by religious organizations.  The exemption applies if the non-discrimination provisions of Title IX would conflict with the organization's religious tenets. The complaint (full text) in Hunter v. U.S. Department of Education, (D OR, filed 3/29/2021) alleges that the Department of Education's refusal to enforce non-discrimination provisions against religious colleges:

leaves students unprotected from the harms of conversion therapy, expulsion, denial of housing and healthcare, sexual and physical abuse and harassment, as well as the less visible, but no less damaging, consequences of institutionalized shame, fear, anxiety and loneliness.

Alleging equal protection and Establishment Clause claims, plaintiffs contend:

[W]hile the statutory religious exemption to Title IX may permit, or even require, the Department to refuse assistance to sexual and gender minority students like the Plaintiffs, the Constitution forbids such inaction.

NBC News reports on the lawsuit.

UPDATE: An amended complaint (full text) was filed on June 7, 2021).

Virginia Public School Guidance On Transgender Students Is Challenged

Suit was filed yesterday in a Virginia state trial court challenging a guidance document titled Model Policies on the Treatment of Transgender Students In Virginia's Public Schools developed by the Virginia Department of Education (DOE). The guidance document calls for safe, supportive and inclusive school environments for transgender students. The lawsuit filed by a parent and two advocacy organizations contends that during the adoption process, the Department of Education failed to respond to a number comments raising constitutional and other legal objections to the proposed guidance document. The complaint (full text) in Family Foundation v. Virginia Department of Education, (VA Cir. Ct., filed 3/30/2021) alleges that the document violates free speech, free exercise, privacy, equal protection, and parental rights. Family Foundation issued a press release announcing the filing of the lawsuit. AP reported on the lawsuit.

Challenge To Bible In Schools Program Survives Motion To Dismiss

In Freedom From Religion Foundation, Inc. v. Mercer County Board of Education, (SD WV, March 26, 2021), a West Virginia federal district court denied a motion to dismiss filed by a school principal in an Establishment Clause challenge to the county's Bible in the Schools program. The court also found that it is impossible to determine at this stage of the case whether the principal is entitled to qualified immunity.

Anti-Abortion Protesters Lose Challenge To D.C.'s Defacement Ordinance

In Frederick Douglass Foundation, Inc. v. District of Columbia,  (DDC, March 26, 2021), the federal district court for the District of Columbia refused to enjoin enforcement of D.C.'s Defacement Ordinance against two groups that organized an anti-abortion demonstration. Protesters attempted to paint or chalk the streets with their slogan "Black Pre-Born Lives Matter." The court rejected plaintiffs' free speech, equal protection, RFRA and free exercise claims. Plaintiffs claim that the Ordinance is enforced in a viewpoint discriminatory manner in that "Black Lives Matter" and "Defund the Police" protesters were not prosecuted. The court said in part, however:

It seems far more plausible, rather, that law enforcement opted against enforcing the Ordinance [against Black Lives Matter protesters] in light of the foreseeable risks of intervention in the moment — e.g., inflaming what may well have already been a tense, fervent, and chaotic protest scene.

South Dakota Governor Issues Executive Orders On Transgender Women In Sports After Vetoing Legislation On The Issue

On March 8, the South Dakota Legislature gave final passage to HB1217 which banned transgender women from participating on women's athletic teams or sports in schools and colleges in the state. It also included various enforcement provisions. On March 19, Governor Kristi Noem, instead of signing the bill, returned it to the legislature with a number of suggested changes. When the legislature failed to act on those changes, the Governor instead issued two executive orders to deal with the issue. Executive Order 2021-05 bans transgender girls from participation in girl's athletics in Grade K-12 public schools, but eliminates the causes of action and much of the paper work that was in HB1217. Executive Order 2021-06 calls for the Board of Regents to take the steps necessary within state law to implement a similar policy for colleges and universities controlled by the Board of Regents. CNN reports on the governor's actions.

Recent Articles of Interest

 From SSRN:

• Giancarlo Anello, The Concept of 'Contractual Citizenship' in the Charter of Medina (622 C.e.): A Contemporary Interpretation, (Islamochristiana, Journal of the PISAI Rome (2021)).
• Engy Abdelkader, Myanmar's Rohingya Population: The Case for Genocide, (Oxford University Press,  2021).
• Howard Kislowicz & Kathryn Chan, Divine Intervention, Part II: Narratives of Norm Entrepreneurship in Canadian Religious Freedom Litigation, (Dalhousie Law Journal (Forthcoming)).
• Arnab Kumar Banerjee, Uniform Civil Code: A Need Of Hour, March 1, 2021).
• Brian Miller, Changing Demographics and the Future of Religious Exercise, (January 28, 2021).
• Kanstantsin Dzehtsiarou, et. al., Human Rights in Action. Assessing the Positive Impact of the Human Rights Act 1998 in the UK, (March 3, 2021).
• Nathan Moelker, Beyond Bostock: Justice Gorsuch's Free Exercise Jurisprudence as a Model in Addressing the Contemporary Crisis in Religious Liberty, (December 23, 2020).
• Ronli Sifris & Tania Penovic, Barriers to Abortion Access in Australia before and during the COVID-19 Pandemic, (Women's Studies International Forum (2021)).
• Dr. Rifai Sulaiman Lebbe, Some Challenges in Sri Lankan Muslim Education Today, (March 21, 2021).
• Eric Franklin Amarante, States as Laboratories for Charitable Compliance: An Empirical Study, (George Washington Law Review, Forthcoming).

DC's Capacity Restrictions On Churches Held Invalid

In Roman Catholic Archbishop of Washington v. Bowser, (D DC, March 25, 2021), the D.C. federal district court granted a preliminary injunction against D.C.'s COVID-19 capacity restrictions on houses of worship, finding that they violate the 1st Amendment as well as RFRA. The limit of the lesser of 25% or 250 congregants particularly affects the  Basilica of the Shrine of the Immaculate Conception which seats at least 3000 people. The court said in part:

In practical terms, this means that the Archdiocese’s churches must stop admitting parishioners once they become a quarter full, but Whole Foods or Target can take in as many customers as they wish while complying with social-distancing requirements. “[O]nce a State creates a favored class of businesses, as [the District] has done in this case, [it] must justify why houses of worship are excluded from that favored class.”....

The District’s restrictions are also problematic because the 250-person cap uniquely burdens churches. The Mayor’s order explained that the District set the hard cap at 250 based on the number of persons that “the largest restaurant” could serve at 25 percent capacity....   But as the District admits, “no restaurant in the District has a room that can hold 1,000 people.”

Courthouse News Service reports on the decision.