Senate Holds Hearings On Atrocities Against Uyghurs

Yesterday the U.S. Senate Foreign Relations Committee held a joint subcommittee hearing on atrocities against the Uyghurs in China's  Xinjiang province. A video of the hearing titled Atrocities in Xinjiang: Where Do We Go From Here? is available online from the Committee's website. Prepared written testimony of committee witnesses is also available at the website.

First Muslim Article 3 Judge Is Confirmed

Yesterday, the U.S. Senate by a vote of 81-16, confirmed  Zahid N. Quraishi to be U.S. District Judge for the District of New Jersey.  Quraishi is currently a federal magistrate judge.  As reported by NPR, Quraishi will be the first Muslim to be confirmed as an Article 3 federal judge.

5th Circuit Hears Arguments On Louisiana COVID Limits On Churches

On Monday, the U.S. 5th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Spell v. Edwards. In the case, a Louisiana federal district court dismissed a suit by a pastor challenging the state's COVID-19 limits on worship services. (See prior posting.) An application to the U.S. Supreme Court for an emergency injunction pending appeal was rejected by Justice Alito. (See prior posting.) AP reports on the oral arguments.

European Court Says Lithuania Should Have Recognized Pagan Group

In Ancient Baltic Religious Association of  Romuva v. Lithuania, (ECHR, June 8, 2021), the European Court of Human Rights in a Chamber Judgment held that the Lithuanian Parliament (Seimas) violated Articles 9, 13 and 14 of the European Convention on Human Rights when it refused to grant the status of a State‑recognized religious association to Romuva.  Romuva is a community following traditional Baltic pagan beliefs. The court noted that the Lithuanian Bishops Conference opposed recognition of Romuva.  The court concluded:

The Court has repeatedly emphasized that maintaining true religious pluralism is vital to the survival of a democratic society .... The role of the authorities is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other....

... [W]hen refusing to grant State recognition to the applicant association, the State authorities did not provide a reasonable and objective justification for treating the applicant association differently from other religious associations that had been in a relevantly similar situation, and the members of the Seimas who voted against the granting of State recognition did not remain neutral and impartial in exercising their regulatory powers.

The Wild Hunt reports on the decision.

DOJ's Memo In Title IX Litigation Raises Controversy

As previously reported, in a class action filed in April, LGBTQ+ students enrolled at religious colleges that receive federal financial assistance sued the Department of Education challenging the constitutionality of the exemption for religious organizations from anti-discrimination requirements of Title IX.  Subsequently, three Christian universities filed a motion to intervene as defendants, contending that the Department of Education would not adequately defend the exemption. The government's memo in opposition to the motion to intervene (full text) in Hunter v. U.S. Department of Education, (D OR, filed 6/8/2021) has created controversy.  As reported by the Washington Post:

Some LGBTQ advocates were disturbed by the filing...,  saying its wording went further than necessary, further than just an obligation to defend an existing law. They want the administration to agree with them that it’s unconstitutional for federally-funded schools to discriminate against LGBTQ people....

To others, including Biden supporters, the administration had no other option, since ... Title 9 ...exempts religion..... 

However, in a possible sign of the pressure on the administration, the Justice Department amended the document Wednesday, taking out the word “vigorously” to describe its defense of the religious exemption and retaining multiple uses of the word “adequate.” It removed wording that said the Department of Education and the Christian schools “share the same ‘ultimate objective’ … namely, to uphold the Religious Exemption as it is currently applied.”

... Slate legal writer Mark Joseph Stern said the Justice Department was “trying to prevent a Christian organization from . . . mounting extreme arguments." Stern said the religious exemption to Title 9 isn’t “blatantly, invidiously unconstitutional” and thus the administration has no choice but to defend it.

Meat Packing Company Settles EEOC Suit Charging Discrimination Against Somali Muslim Employees

The EEOC announced yesterday that the meat processing company JBS Swift & Co. has settled an EEOC lawsuit against it that charged discrimination against Muslim employees who were immigrants from Somalia and were black. The EEOC had charged that the prayer obligations of Muslim employees were not accommodated, and that these employees were harassed when they tried to pray during regular breaks and at other times. It also charged that JBS shut off water fountains during Ramadan 2008, which stopped Muslim employees from getting water after fasting and from washing before prayers. JBS will pay up to $5.5 million to the 300 employees who are eligible to share in the judgment. According to the EEOC:

JBS will make all former employees covered under the decree eligible for rehire. It will review, update, and post its anti-discrimination policies; maintain a 24-hour hotline for reporting discrimination; investigate employee complaints; support a diversity committee; and provide annual trainings to all employees on the laws prohibiting employment discrimination. JBS also must provide clean, quiet, and appropriate locations other than bathrooms for employees’ religious observances, including daily prayers, and must also allow employees to use locker rooms or other locations that do not pose a safety risk for observation of their religious practices.

Suspension of Teacher Who Objected To Transgender Policy Is Enjoined

In Cross v. Louden County School Board, (VA Cir. Ct., June 8, 2021), a Virginia state trial court issued a temporary injunction ordering the Louden County School Board to reinstate a teacher who was suspended for speaking at a school board meeting in opposition to proposed policies that would require teacher to address students using pronouns that conform to their gender identity.  The Board was also ordered to remove its ban on plaintiff's accessing school grounds. The court concluded:

Plaintiff's speech and religious content are central to the determination made by Defendants to suspend Plaintiff's employment.

ADF issued a press release announcing the decision.

Utah Supreme Court: Lemon Test Is No Longer Controlling

In Williams v. Kingdom Hall of Jehovah's Witnesses, Roy, Utah, (UT Sup. Ct., June 3, 2021), the Utah Supreme Court vacated the trial and appellate courts' dismissal of a claim for intentional infliction of emotional distress against the Elders of a Jehovah's Witnesses church. At issue was the manner in which the Elders conducted an investigation of whether a 14-year old girl who was raped by a congregant was herself guilty of the sin of "porneia". The state Supreme Court said in part:

Although the conclusion reached by the district court and the court of appeals may ultimately prove to be the correct one, we note that in reaching that conclusion both courts relied on the excessive entanglement test established in Lemon. But ... Lemon has been overtaken by more recent Supreme Court cases.  Because the district court applied the excessive entanglement test from Lemon instead of the approach followed in these more recent cases, we vacate the district court‘s decision and remand for any additional proceedings necessary to adequately conduct the Supreme Court‘s current approach to the Establishment Clause.

... [T]he district court should focus on the particular issue at hand and look to history for guidance as to the correct application of the Establishment Clause.... [T]he court should identify ―an overarching set of principles and explain how those principles should be applied in this case.

Ogden Standard-Examiner reports on the decision. [Thanks to James Phillips for the lead.]

Supreme Court Grants Cert. In Challenge To Surveillance of Muslims

The U.S. Supreme Court today granted review in Federal Bureau of Investigation v. Fagazi, (Docket No. 20-828, certiorari granted 6/7/2021). (Order List). In the case, a 3-judge panel of the 9th Circuit held that three Muslim plaintiffs may move ahead with many of their claims growing out of an FBI investigation that they allege involved unlawful searches and anti-Muslim discrimination. Subsequently the panel filed an amended opinion and the 9th Circuit denied en banc review. However, ten judges joined all or most of an opinion dissenting from the denial of en banc review. At issue is the relationship between the provisions of FISA and the state secrets privilege. Here is the SCOTUSblog case page with links to all the filings in the case. Politico has additional background.

Recent Articles of Interest

 From SSRN:

• Idahosa Ojo & Eghosa Ekhator, Precolonial Legal System in Africa: An Assessment of Indigenous Laws of Benin before 1897, (5 (2020) Umewaen: Journal of Benin and Edo Studies 38-73).
• Oren Gross, What Both Hart and Fuller Got Wrong, (11 Wake Forest L. Rev. Online 54 (2021)).
• Deborah A. Widiss Proving Discrimination by the Text, (Minnesota Law Review, Forthcoming).
• Dr. Rifai Sulaiman Lebbe, Muslim Countries and the Underdevelopment: An Islamic Perspective, (May 27, 2021).
• Dr. Rifai Sulaiman Lebbe, Islamic Epistemology in the Works of Ashraf Adeel. F. H Malkawi, (May 24, 2021).

From SmartCILP:

• Festschrift For Professor Robert Cochran, Jr., Pepperdine Law Review, Vol. 47, No. 2 (2020).
• Kyle C. Velte, Recovering the Race Analogy in LGBTQ Religious Exemption Cases, 42 Cardozo Law Review 67-142 (2020).
• Panel. Masterpiece Cakeshop and Its Implications, [Abstract], 45 University of Dayton Law Review 289-314 (2020).

FFRF Wins Right To Display "Bill of Rights Nativity Scene"

In Freedom from Religion Foundation v. Abbott, 2021 U.S. Dist. LEXIS 104950 (WD TX, May 5, 2021), on remand from the 5th Circuit, a Texas federal district court issued a declaratory judgment and an injunction barring state officials from excluding FFRF's "Bill of Rights Nativity Exhibit" from display space in the state capitol building under now-revised rules. The court said in part:

Defendants violate the Foundation's First Amendment rights and engage in viewpoint discrimination as a matter of law when they exclude the Foundation's Exhibit based on the perceived offensiveness of its message.

The court however rejected plaintiff's claim that the state has unconstitutional unbridled discretion under the current rules.

Church's Suit On COVID Limits Dismissed As Moot

In Calvary Chapel of Bangor v. Mills, (D ME, June 4, 2021), a Maine federal district court dismissed on mootness grounds a church's challenge to Maine Governor Janet Mills now-superseded COVID-19 limits on the number of people permitted to attend worship services. The court said in part:

Governor Mills has not employed a strategy of “moving the goalposts.” The fact that she retains some authority to reimpose restrictions does not mean that she is likely to do so, particularly given her counsel’s statements and her actions thus far. I conclude that the Defendant has demonstrated that it is absolutely clear that Governor Mills cannot reasonably be expected to reinstate the GATHERING ORDERS that are identified in the Complaint.

Previously the court had denied a temporary restraining order, and an appeal of that decision is currently pending in the U.S. Supreme court. Nevertheless, last week's decision was immediately appealed to the U.S. 1st Circuit Court of Appeals. Liberty Counsel issued a press release on the case.

Court Refuses To Allow Chabad To File Amended RLUIPA Complaint

In Friends of Lubavitch v. Baltimore County, Maryland,(D MD, June 3, 2021), a Maryland federal district court found no RLUIPA or other violations in denying a motion to file an amended complaint and a motion for reconsideration.  At issue was an earlier decision that dismissed a suit in which a Chabad House serving students at Towson University and Goucher College challenged a state court order requiring it to raze the expansion of its building which was constructed in violation of zoning rules and a deed restriction.

Justice Gorsuch Denies "Shadow Docket" Injunction Pending Appeal Sought By Two Churches

In a little-noticed order on the Supreme Court's "shadow docket", earlier this week Justice Gorsuch, without referring the petition to the entire Court, denied an emergency application for an injunction pending appeal filed by two churches who oppose Colorado's COVID-19 executive orders and public health orders. In Denver Bible Church v. Polis, (US Sup. Ct., application denied 6/1/2021), the churches sought an injunction while appeals are pending to prohibit the state from issuing future disaster emergency or public health orders against houses of worship and from enforcing against them any current orders issued since the beginning of the COVID pandemic. (Full text of application and brief in support). SCOTUSblog has more on the action. Here are links to other filings in the case.

Catholic Group Challenges Zoning Refusal To Allow Building Of Chapel

Suit was filed this week in a Michigan federal district court challenging Genoa Township's refusal to allow a Catholic religious organization to develop and construct a 95-seat Chapel and prayer campus on land it acquired from the Diocese of Lansing in 2020. The Township has also demanded that all religious signage already on the property be removed. The complaint (full text) in Catholic Healthcare International, Inc. v. Genoa Charter Township, (ED MI, filed 6/2/2021), alleges that the Township's actions violate plaintiff's rights under RLUIPA, the Michigan Constitution and the First and 14th Amendments of the U.S. Constitution. American Freedom Law Center issued a press release announcing the filing of the lawsuit.

Suspended Teacher Who Opposed Policy On Transgender Students Sues

Suit was filed this week in a Virginia state trial court seeking a temporary restraining order and preliminary injunction to require the Loudon County School Board to reinstate Bryon Cross, a teacher who was suspended for comments he made at a public school board meeting. The Motion and Memorandum in Support (full text) in Cross v. Loudon County School Board, (VA Cir. Ct., filed 6/1/2021) contend that Cross' free speech and free exercise rights were violated when he was placed on administrative leave for opposing a proposed policy that would require teachers to address students using the student's preferred pronoun. At the school board meeting, Cross said in part:

I'm a teacher but I serve God first. And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion. It's lying to a child. It's abuse to a child. And it's sinning against our God.

ADF issued a press release announcing the filing of the law suit.

Ministerial Exception Leads To Dismissal Of Part of Nuns' Sexual Harassment Claims

In Brandenburg v. Greek Orthodox Archdiocese of North America, (SD NY, June 1, 2021), two nuns who formerly worked at a Greek Orthodox monastery sued the Archdiocese and several clergy members for sexual harassment by Father Makris at the monastery. One of the plaintiffs also sued over the conduct of Father Makris when he was Dean of Students at the religious college she attended in Massachusetts. When the student reported a sexual assault by a male student, Makris made her marry her attacker to cure the assault.

Invoking the ministerial exception doctrine, the court dismissed plaintiffs' sex discrimination claims and their retaliation claims to the extent they are based on tangible employment action (hiring, firing, job assignments, promotion, compensation).  However the court held that the claims for constructive discharge survive, as do the claims for retaliation to the extent they are based on harassment and not a tangible employment action. Some of plaintiffs' defamation claims also survived the motion to dismiss.

Challenges To Alabama COVID-19 Orders Are Unsuccessful

In Case v. Ivey, MD AL, June 1, 2021), six plaintiffs brought a range of constitutional challenges to Alabama Governor Kay Ivey's COVID-19 Orders. In a 68-page opinion, the court dismissed all of them-- some on standing or mootness grounds, others on substantive or qualified immunity grounds. Among the claims, one plaintiff contended that the Orders denied her the right to attend the church of her choice. Two pastors claimed that the Orders resulted in the denial of their right to preach and conduct in-person services. The court concluded that defendants had qualified immunity as to the damage claims against them for violating the First Amendment's Free Exercise, Freedom of Assembly and Establishment Clauses because plaintiffs did not plausibly allege that defendants’ conduct violated law that was clearly established at the time of their actions.

Court Says Wayne State Also Violated State Constitution and 14th Amendment In Denying Recognition To Christian Group

In Intervarsity Christian Fellowship/USA v. Board of Governors of Wayne State University, (ED MI, June 1, 2021), a Michigan federal district court denied defendants' motion for reconsideration of the breadth of an injunction the court issued in April which prohibits Defendants from revoking the recognized student organization status of IVCF. (See prior posting.) Wayne State had claimed that 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. The court's April decision found violations of the 1st Amendment. The current decision concludes that the school also violated the free speech provision of the Michigan Constitution and the equal protection clause of the 14th Amendment.

2nd Circuit: Vermont Town Tuition Program Cannot Exclude Parochial Schools

 In A.H. v. French, (2d Cir., June 2, 2021), the U.S. 2nd Circuit Court of Appeals filed its opinion explaining its Feb. 3, 2021 Order granting a petition for a writ of mandamus.  At issue was Vermont's refusal to allow students attending religious schools to participate in the state's Town Tuition Program. School districts that do not operate their own high schools must pay tuition costs for students in their district to attend another public high school or an approved non-religious private high school. The Second Circuit held that the exclusion of religious high schools from the program violates the First Amendment, saying in part:

Four years ago, the Supreme Court reminded states that it “has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order.” Trinity Lutheran Church of Columbia, Inc. v. Comer.... Last June, the Court clarified that this rule does not allow a state to apply a state constitutional prohibition on aid to religion that would “bar[] religious schools from public benefits solely because of the religious character of the schools.” Espinoza v. Mont. Dep't of Revenue.... The Court emphasized that “[s]tatus-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses”....

Judge Menashi filed a concurring opinion.