Biden Statement on the Beginning of Ramadan

Yesterday President Biden issued a Statement on the Beginning of Ramadan (full text), saying in part:

On my first day as President, I was proud to end the shameful Muslim travel ban, and I will continue to stand up for human rights everywhere, including for Uyghurs in China, Rohingya in Burma, and Muslim communities all over the world.

As we remember those who we have lost since last Ramadan, we are hopeful for brighter days ahead.  The Holy Qur’an reminds us that “God is the light of the heavens and earth,” who leads us out of darkness to the light.  Although our White House festivities will be held virtually this Ramadan, Jill and I look forward to resuming the traditional White House Eid celebration in person next year, inshallah.  We wish your families an inspiring and rewarding month.

Russian Opposition Leader Navalny Sues Prison Officials To Obtain A Quran

According to reports from AP and The Hill, imprisoned Russian opposition leader Alexei Navalny is suing prison officials to obtain access to volumes of the Quran with commentary that he purchased. AP says in part:

Navalny has faced criticism over the years for using nationalist rhetoric regarding migrants, many of whom arrive in Russia from predominantly Muslim nations in Central Asia.

He said Tuesday he had realized his “development as a Christian requires studying the Quran,” adding that he decided to become “the Quran champion among Russian non-Muslim politicians.”

Prison authorities say that they must screen all books for extremism before making them available to prisoners, and that this will take three months. Navalny is in the midst of a hunger strike and prison officials are threatening to force feed him. 

Ramadan Began Last Night; Minnesota Gives Religious Exemption From Curfew Order

Ramadan began last night. As reported by the Minneapolis Star Tribune, Minnesota Governor Tim Walz's 7:00 pm curfew order for several counties-- issued after 20-year-old Daunte Wright was shot and killed by police in a Minneapolis suburb-- contains an exemption for those traveling to and from religious services. The exemption was clarified after the Minnesota chapter of CAIR issued a statement calling for such an exemption.

6th Circuit Grants Initial Hearing En Banc In Tennessee Abortion Case

On Friday, the U.S. 6th Circuit Court of Appeals in a high-profile abortion case, by a vote of 10-6, took the unusual step of agreeing to hear an initial appeal en banc, rather than allowing the appeal to be heard initially by a 3-judge panel.  In Bristol Regional Women's Center, P.C. v. Slatery, (6th Cir., April 9, 2021), Judge Moore, joined by 5 other judges, issued a dissent to the majority's one-sentence order:

This case concerns abortion. Specifically, it concerns the constitutionality of a Tennessee abortion law that sets a 48-hour waiting period before a woman can obtain an abortion. After the district court held Tennessee’s waiting-period law unconstitutional and permanently enjoined its enforcement, the officials defending the law appealed. Appellants sought a stay pending appeal. A three-judge panel denied that request, with Judge White and myself concluding that Appellants were unlikely to succeed on the merits of their appeal. Judge Thapar disagreed. So vehemently did he disagree that he called for “immediate correction” of the stay order, urging Appellants to seek initial hearing en banc. Appellants readily obliged, filing a petition for initial hearing en banc. By granting that petition, a majority of this court has sent a dubious message about its willingness to invoke that extraordinary—and extraordinarily disfavored—procedure in ideologically charged cases....

The grant of initial hearing en banc in this case damages the reputation of this court.... Indeed, the inescapable suggestion of Appellants’ petition for initial hearing en banc is that there are judges on this court who will always side with Appellants on the issue of abortion and will upend standard practice to do so. Today we could have sent a message affirming this court’s impartiality and independence. The majority declined.

Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

 From SSRN:

• Adam McDuffie, 'Law and Order,' Canopy Forum, (January 11, 2021).
• Jennifer Piatt, James G. Hodge & Leila Barraza, When Can You Be Required to Get a COVID-19 Vaccine?, (Slate - Future Tense, Forthcoming).
• James Stern, First Amendment Lochnerism & the Origins of the Incorporation Doctrine, (University of Illinois Law Review, Vol. 2020, No. 5, 1501).
• Zalman Rothschild, Free Exercise Partisanship, (Cornell Law Review, Vol. 107, No. 4, 2022).

From SmartCILP:

• John Witte Jr. & Andrea Pin, Faith in Strasbourg and Luxembourg? The Fresh Rise of Religious Freedom Litigation in the Pan-European Courts, 70 Emory Law Journal 587-662 (2021).
• Dallan F. Flake, Restoring Reasonableness to Workplace Religious Accommodations, 95 Washington Law Review 1673-1724 (2020).

Supreme Court Enjoins, Pending Appeals, California Limits On In-Home Worship Services

Late Friday night, in another case on its so-called "shadow docket", the U.S. Supreme Court in Tandon v. Newsom,  (Sup. Ct., April 9, 2021), granted an injunction preventing enforcement during the appeal process of California's COVID-19 order limiting religious gatherings in homes to three households. In a 5-4 decision, the majority in a 4-page per curiam opinion outlined important principles to be applied in deciding free exercise claims, saying in part:

First, government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise....

Second, whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue....

California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.

Justice Kagan filed a 2-page dissent, joined by Justices Breyer and Sotomayor. They said in part:

The First Amendment requires that a State treat religious conduct as well as the State treats comparable secular conduct. Sometimes finding the right secular analogue may raise hard questions. But not today. California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at home gatherings of all kinds, religious and secular alike. California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons—and thus unlike at-home secular gatherings, the obvious comparator here.

Chief Justice Roberts also dissented, without filing an opinion. Volokh Conspiracy blog has more on the decision.

Idaho Supreme Court: Marijuana Ban Does Not Violate Free Exercise Rights

In State of Idaho v. Heath, (ID Sup. Ct., April 8, 2021), the Idaho Supreme Court held that the state's prohibition of marijuana does not violate defendant-appellant's right to religious liberty.  The issue arose as appellant attempted to recover a pipe and bong made from elk antler, seized as contraband (along with marijuana), during a police traffic stop. The court said in part:

... Heath contends that the provisions of the [Controlled Substances Act] prohibiting the use of marijuana are not neutral and generally applicable. However, Heath's arguments do not support his conclusion. Certainly, the prohibition of marijuana under the CSA impairs Heath's ability to consume marijuana, which he attests is an important element of his belief system.... [W]e will not question the sincerity of his beliefs. But the impact of the CSA on Heath's ability to legally practice his beliefs is not the dispositive issue. Rather, the issue is whether the CSA proscribes religious use of marijuana while permitting non-religious use, or has been designed so that it applies primarily to religiously motivated conduct..... Heath has made no such argument.

11th Circuit: Rastafarian Paramedic Was Offered Reasonable Accommodation

In Bailey v. Metro Ambulance Services, Inc., (11th Cir., April 6, 2021), the U.S. 11th Circuit Court of Appeals held that an ambulance company had offered a Rastafarian paramedic a reasonable accommodation of his religious beliefs as required by Title VII. The court said in part:

AMR offered Bailey a reasonable accommodation. It provided Bailey with the opportunity to maintain his beard and to work on the non-emergency-transport side of its operations, for which DeKalb County’s facial-hair policy did not apply. Had Bailey accepted the offer, his salary, hours, and job description would have remained the same as if he had worked either exclusively on the emergency side or on both the emergency and non-emergency sides of AMR’s operations. As a result, his terms and conditions of employment would not have been affected by the accommodation AMR offered.

Judge Rosenbaum filed a concurring opinion. [Thanks to Joshua Sarnoff via Religionlaw for the lead.]

Muslim Group Sues Facebook For Consumer Fraud Because of Online Hate Speech

The non-profit organization Muslim Advocates filed suit yesterday in District of Columbia Superior Court against Facebook and its executives alleging that their failure to take down anti-Muslim posts, while claiming to do so, is fraudulent and violates the D.C. Consumer Protection Procedures Act.  The complaint (full text) in Muslim Advocates v. Zuckerberg, (DC Super. Ct., filed 4/8/2021) alleges in part:

Every day, ordinary people are bombarded with harmful content in violation of Facebook’s own policies on hate speech, bullying, harassment, dangerous organizations, and violence. Hateful, anti-Muslim attacks are especially pervasive on Facebook. 

Yet Facebook refuses to “remove” this content or “take it down,” as its executives repeatedly promised that they and the company would do when they learn of such content. Instead, in an effort to convince Congress, civil rights groups, and the public that their product is safe, Facebook’s officials have consistently misrepresented the company’s actual practices when it comes to enforcing Facebook’s own its own standards and policies to keep Facebook free of hate speech and other harmful content....

Facebook has been used, among other things, to orchestrate the Rohingya genocide in Myanmar, mass murders of Muslims in India, and riots and murders in Sri Lanka that targeted Muslims for death. Anti-Muslim hate groups and hate speech run rampant on Facebook with anti-Muslim posts, ads, private groups, and other content.....

Washington Post reports on the lawsuit.

Christian Wedding Photographer Sues Over NY Public Accommodation Law

Suit was filed this week in a New York federal district court challenging on 1st Amendment grounds the application of New York's public accommodation law to a Christian wedding photographer.  Among other things, the law broadly prohibits sexual orientation discrimination.  The complaint (full text) in Emilee Carpenter, LLC v. James, (WD NY, filed 4/6/2021), alleges in part:

[T]he Accommodations Clause ... makes it unlawful for Emilee to treat photography requests for same-sex engagements and weddings different from photography requests for opposite-sex weddings—whether by responding to the former more slowly, by always referring the former to another photographer, or by offering any part of her services to the latter but not the former, such as posting wedding photographs or blogs for opposite-sex weddings on her website but not posting wedding photographs or blogs for same-sex weddings.

... In short, the Accommodations Clause forces Emilee to celebrate same-sex engagements or weddings and would require her to promote messages that violate her religious beliefs or require her to participate in religious ceremonies that violate her religious beliefs, something she cannot do....

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

7th Circuit: Walmart Need Not Accommodate Seventh Day Adventist

In EEOC v. Walmart Stores East, L.P., (7th Cir., March 31, 2021), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, held that accommodating the scheduling need of a Seventh Day Adventist would impose an undue burden on Walmart. The majority, in an opinion by Judge Easterbrook, said in part:

According to the EEOC, Walmart could have offered Hedican several accommodations that would have enabled him to be an assistant manager. One would have been to give him that job and let him trade shifts with other assistant managers. But that would not be an accommodation by the employer, as Title VII contemplates. This proposal would thrust on other workers the need to accommodate Hedican’s religious beliefs. That’s not what the statute requires..... Title VII does not require an employer to offer an “accommodation” that comes at the expense of other workers.

Judge Rovner dissented, saying in part:

Although Ahern considered whether it might be feasible to adjust other assistant managers’ schedules in some manner (including voluntary shift‐trades) so that Hedican would never have to work on a Friday night or Saturday, one thing she did not do is consult with the other managers in making her assessment....

Discussion of the difficulty of accommodating Hedican brings to mind the sorts of excuses employers long trotted out for why it was impractical to hire women of child‐bearing age....

JD Supra reports on the decision.

Suit Against Alabama Is Dropped After Voter Registration Form Is Amended

Last October, the Freedom From Religion Foundation sued Alabama's Secretary of State challenging language in Alabama's voter registration form. The oath in the form ends with "so help me God." (See prior posting.) Yesterday, FFRF announced that it is voluntarily dismissing the suit because Alabama has amended the form to allow voters to opt out of that language. The new mail-in form allows a voter to check a box that says, "OPTIONAL: Because of a sincerely held belief, I decline to include the final four words of the oath above." The online form has also been changed.

Missouri Supreme Court Upholds Some Claims of Failure To Supervise Abusive Clergy

In John Doe 122 v. Marianist Province of the United States, (MO Sup. Ct., April 6, 2021), the Missouri Supreme Court dismissed negligent supervision claims of plaintiff who was sexually abused by a Marianist brother in the early 1970's. In dismissing the claim, the court relied on its earlier precedent in Gibson v. Brewer, (1997). However the court reversed the trial court's dismissal of plaintiff's intentional failure to supervise claims, saying in part:

Using all of the evidence before them, including Father Doyle’s expert testimony, the jury may infer Chaminade knew the risk that Brother Woulfe would visit sexual abuse upon a student was certain or substantially certain and – if so – whether Chaminade disregarded that known risk. And they may not. The only issue before this Court, and the issue on which the circuit court erred, is whether Father Doyle’s testimony (taken together with all the other evidence) is sufficient for the jury to draw that inference reasonably if persuaded to do so. This Court concludes there is.... 

St. Louis Today reports on the decision.

British Court Says Removal of Franklin Graham Bus Ads Violated Religion and Speech Rights

In Lancaster Festival of Hope With Franklin Graham v. Blackpool Borough Council, (Manchester Cty. Ct., April 1, 2021), a British trial court held that the Equality Act 2010 and the European Convention on Human Rights were violated when banner ads for the Lancaster Festival of Hope were removed from public buses. According to the court:

Upon the Defendants receiving complaints from members of the public about the advertisements, the advertisements were removed from the buses. The complaints related to Franklin Graham and his association with the Festival, and predominantly referred to his views on homosexuality and same-sex marriage as being offensive.

In finding a violation of the Equality Act, the court said in part:

The complaints arose from the objections of members of the public to the religious beliefs. The removal came about because of those complaints. I find it also came about because the Defendants allied themselves on the issue of the religious beliefs with the complainants, and against the Claimant and others holding them. If there were any doubt about that it is made explicit by the content of the press statement issued on behalf of the Second Defendant when the advertisements were removed....

Finding a violation of the European Convention, and thus of the Human Rights Act 1998, the court said in part:

Yes, the Claimant was still able to advertise its event and yes, it was still a success. But “it turned out all right in the end” cannot be an answer to the question of whether the interference with a fundamental right to freedom of expression can be justified. The Defendants had a wholesale disregard for the right to freedom of expression possessed by the Claimant. It gave a preference to the rights and opinions of one part of the community without having any regard for the rights of the Claimant or those who shared its religious beliefs. It made no effort to consider whether any less intrusive interference than removing the advertisements altogether would meet its legitimate aim.

Christianity Daily reports on the decision.

Suit Says Housing Discrimination Based On Family Size Is Religious Discrimination Against Orthodox Jews

A lawsuit was filed yesterday in a New York federal district court by a couple who claim that the city's public housing rules which effectively limit the size of families that are eligible for apartments through the affordable housing lottery operate to discriminate against Orthodox Jewish families. The complaint (full text) in Katz v. New York City Housing Preservation & Development, (SD NY, filed 4/6/2021) alleges:

Plaintiffs and their family members have a sincerely held religious belief that having a large family is both an obligation and a blessing from God....

Orthodox Jewish families are at an inherent disadvantage in applying for affordable housing lotteries, because even the average family, with 4.1 children, would exceed the maximum family size requirement of 6 individuals.

Plaintiffs allege that the policy violates city, state and federal anti-discrimination laws as well as the 1st Amendment.   AP reports on the lawsuit.

Republican Arkansas Governor Vetoes Bill Banning Gender Transition Procedures [Update: Veto Override]

 As reported by NPR, Arkansas Republican Governor Asa Hutchinson yesterday vetoed Arkansas House Bill 1570 ("Save Adolescents From Experimentation (SAFE) Act") which prohibits physicians from providing gender transition procedures to minors. Hutchinson told reporters that the bill would set:

new standards of legislative interference with physicians and parents as they deal with some of the most complex and sensitive matters involving young people.

A majority of the Arkansas legislature can override the Governor's veto.

UDATE: On April 6, the Arkansas legislature overrode the Governor's veto by a vote of 71-24. (ABC News).

Suit Claims Enforcement of Deed Restriction Against Synagogue Violates Religious Exercise Rights

Suit was filed late last month in a Texas federal district court against the City of Houston seeking to block it from enforcing a deed restriction against a small Orthodox synagogue that meets in a house zoned only for residential use.  The complaint (full text) in TORCH (Torah Outreach Resource Center of Houston) v. City of Houston, Texas, (SD TX, filed 3/25/2021), alleges that the city's selective enforcement of the deed restriction violates RLUIPA, the Texas Religious Freedom Restoration Act, and the federal Fair Housing Act. First Liberty Institute issued a press release announcing the filing of the lawsuit.

UPDATE: An April 20 announcement by First Liberty indicates that the case has been settled, with the City of Houston agreeing not to enforce deed restrictions against the synagogue and to dismiss citations it has already issued.

Christian Student Group Wins Suit Seeking To Limit Its Leadership To Believers

In Intervarsity Christian Fellowship/USA v. Board of Governors of Wayne State University, (ED MI, April 5, 2021), a Michigan federal district court held that Wayne State University violated the free exercise, free speech, association and assembly rights of a Christian student organization (IVCF) when the University suspended the group's status as a Recognized Student Organization.  The University took this action because IVCF violated the school's non-discrimination policy by insisting that its leaders agree with IVCF's  “Doctrine and Purpose Statements,” “exemplify Christ-like character, conduct and leadership,” and describe their Christian beliefs. In an 83-page opinion, the court said in part:

The First Amendment provides religious organizations the right to select their own ministers, and, under the First Amendment and §1983, organizations can sue the government for violating that right....

Plaintiffs also provide uncontradicted evidence that student leaders, called “Christian leaders,” qualify as ministers under the First Amendment....  In essence, Plaintiffs’ student leaders participate in proselytizing efforts and are Plaintiffs’ chosen spiritual resource for students at Wayne State....

No religious group can constitutionally be made an outsider, excluded from equal access to public or university life, simply because it insists on religious leaders who believe in its cause...

Defendants have barred Plaintiffs from selecting leaders that share its Christian views while allowing other groups to engage in similar form of leadership selection. This divergent treatment cannot withstand constitutional scrutiny....

The court awarded an injunction and nominal damages. Detroit News reports on the decision.

Supreme Court Denies Review In Cases Seeking To Overturn Hardison's Interpretation Of Title VII

The U.S. Supreme Court today denied review in two Title VII religious discrimination cases. (Order List). In both, petitioners were asking the Supreme Court to overturn its 1977 decision in Trans World Airlines v. Hardison which, interpreting the statutory term "undue hardship", allows an employer to refuse to accommodate an employee's religious requirements if doing so would impose  anything more than a de minimis cost. In Dalberiste v. GLE Associates, Inc. (Docket No. 19-1461, certiorari denied 4/5/2021), a Seventh Day Adventist sought a religious accommodation for his Sabbath observance. (SCOTUSblog case page.)  In Small v. Memphis Gas, Light & Water, (Docket No. 19-1388, certiorari denied      4/5/2021), a Jehovah's Witness employee sought scheduling accommodations that would allow him to attend church services. (SCOTUSblog case page). 

Justice Gorsuch, joined by Justice Alito, dissented from the denial of certiorari in the Small case, saying that the statutory interpretation involved there is out of step with subsequently adopted federal civil rights laws in other areas. Their opinion contends in part:

... Title VII’s right to religious exercise has become the odd man out. Alone among comparable statutorily protected civil rights, an employer may dispense with it nearly at whim. As this case illustrates, even subpar employees may wind up receiving more favorable treatment than highly performing employees who seek only to attend church.

Reuters reports on the Court's actions.

Churches' Challenge to Minnesota COVID Orders Moves Ahead

In Northland Baptist Church of St. Paul, Minnesota v. Walz, (D MN, March 30, 2021), a Minnesota federal district court refused to dismiss at the pleading stage complaints by two churches and a pastor that Minnesota's COVID-19 orders treat religious services less favorably than comparable secular activities. The decision also dealt extensively with several procedural and jurisdictional issues, as well as with other challenges by business plaintiffs.