Home-Based Synagogue Sues Over Zoning Restrictions

Suit was filed this month in an Ohio federal district court by a home-based synagogue in a Cleveland suburb alleging that the city's land use regulations violate the Religious Land Use an Institutionalized Persons Act, as well as the federal and state constitutions. The complaint (full text) in Aleksander Shul v. City of University Heights, Ohio, (ND OH, filed 10/13/2021), alleges in part:

Since 2009, Rabbi Shnior Zalman Denciger ... has engaged in prayer services at his residence.... The Property has become known throughout the City as the “Aleksander Shul,” ... that offers Orthodox Jewish prayer services in the Polish Chassidic style, and according to the unique customs of the Aleksander Chassidic sect, which was decimated by the Nazis during the Holocaust.

The City for many years permitted the Aleksander Shul to operate informally at the Property. For many residents of the City, the Aleksander Shul is the only place for them to exercise their religion because, pursuant to their Orthodox Jewish beliefs, they do not travel in cars on the Sabbath....The City, however, has taken various actions to shut down Orthodox Jewish shuls, including the Aleksander Shul, and the City’s zoning scheme makes it impossible to locate any parcel within the City where a place of worship can legally operate.

News 5 Cleveland has additional background on the lawsuit.

Canadian Court Upholds Job Program Funding Limited To Groups Supporting Abortion Rights

In Right to Life Association of Toronto v. Canada , (Fed.Ct., Oct. 22, 2021), Canada's Federal Court in a 63-pagae opinion upheld a requirement in the 2018 Canada Summer Jobs program that required organizations applying for funding to attest that they respected individual human rights, Charter rights and reproductive rights. A right-to-life organization and individuals associated with it claimed that the attestation went beyond the Ministry's authority, was added at the behest of an abortion rights lobby, and infringes their freedom of religion and of speech. The court said in part:

[191] As found, the Attestation was a reasonable policy decision and within the Minister’s authority in accordance with the DESDA [Department of Employment and Social Development Act]. The decision to add the Attestation was not made with a closed mind, for improper purposes, or based on irrelevant considerations.

[192] The effect of the Attestation restricted or limited the Applicants’ rights to freedom of religion and protection against compelled speech, but only minimally and only in the context of the application for 2018 CSJ [Canadian Summer Jobs] funding. The limitation on the Applicants’ Charter rights reflects a proportionate balancing with the objectives of the DESDA and the CSJ program.

National Post reports on the decision.

USCIRF Calls Attention To Persecution of Ahmadiyya Muslims

The U.S. Commission on International Religious Freedom has recently issued a new Factsheet on Persecution of Ahmadiyya Muslims, focusing particularly on issues in Pakistan, Algeria and Malaysia, saying part:

In these countries, authorities have targeted Ahmadis through hate speech and speech inciting violence against them, denied them citizenship, restricted their rights to worship, and prosecuted them for practicing their faith, including by charging them with, and in some cases convicting them of, blasphemy. Some states prohibit Ahmadis from declaring their faith publicly, criminalize them for identifying as Muslim, and prohibit them from calling their houses of worship mosques....

 USCIRF explains:

Because of the differences between Ahmadiyya beliefs and beliefs in Sunni and Shi’a Islam, many Muslims consider Ahmadiyya Muslims to be heretics.

Recent Articles and Books of Interest

 From SSRN:

• Linda C. McClain & James Fleming,  Civic Education in Circumstances of Constitutional Rot and Strong Polarization, (Boston University Law Review, Vol. 101, No. 1771, 2021).
• Judith Geldenhuys & Michelle Kelly-Louw, Demystifying Hate Speech under the PEPUDA, (PER / PELJ 2020(23)).
• Charles W. (Rocky) Rhodes & Howard Wasserman, Solving the Procedural Puzzles of Texas’ Fetal-Heartbeat Law and its Imitators: The Potential for Defensive Litigation, (SMU Law Review, (forthcoming 2022)).
• Howard Wasserman & Charles W. (Rocky) Rhodes, Solving the Procedural Puzzles of Texas’ Fetal-Heartbeat Law and its Imitators: The Limits and Opportunities for Offensive Litigation, (American University Law Review, Vol. 71, 2022).
• Abdul Muqaddas Opeyemi Ishaaq El-Mubarak, Zakariya Mustapha & Isyaku Hassan, Regulation Not Mere Legislation: The Issue of Enhancing Islamic Banking Performance Across Nigeria, (International Journal of Academic Research in Business and Social Sciences 2021).

Recent Books of Interest:

• Spencer W. McBride, Joseph Smith for President-- The Prophet, the Assassins, and the Fight for American Religious Freedom, (Oxford Univ. Press, May 2021).
• Michael Graziano, Errand into the Wilderness of Mirrors-- Religion and the History of the CIA, (University of Chicago Press, June 2021).
• Greg Bourke, Gay, Catholic, and American-- My Legal Battle for Marriage Equality and Inclusion, (Notre Dame Univ. Press, Sept. 2021).
• Alvin H. Rosenfeld (ed.), Contending with Antisemitism in a Rapidly Changing Political Climate,(Indiana Univ. Press, Nov. 2021).

9th Circuit Hears Arguments In Apache Attempt To Prevent Sacred Land Transfer

Last Friday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Apache Stronghold v. United States. (Video of full oral arguments.) In the case, an Arizona federal district court refused to issue a preliminary injunction to prevent a land exchange between the federal government and two foreign mining companies known as Resolution Copper. The land to be conveyed to Resolution Copper contains a sacred Apache ceremonial ground know as Oak Flat. (See prior posting.) In March, the 9th Circuit refused to issue an injunction pending appeal sought by Apache tribal members. (See prior posting.) Eagle Tribune reports on last week's oral arguments.

General Religious Objection Available Under Hawaii's COVID Mandate

In Pelekai v. State of Hawai'i, (D HI, Oct. 22, 2021), a Hawaii federal district court rejected various challenges to Hawaii state and county mandates that public employees be vaccinated against COVD or else submit to regular testing. One of plaintiffs' objections was to language rejecting any religious exemption based on opposition to "specific vaccinations". The court rejected that claim, saying in part:

The policy ... does not prohibit an employee from making the following objection: “I object to all vaccines that have been developed using aborted fetal cell lines on religious grounds.” The latter is not an objection to a specific vaccine, is not prohibited by Honolulu’s policy, and is the objection Plaintiffs themselves claim to want to make.

Oklahoma Governor Condemns State's Issuance Of Non-Binary Birth Certificate

According to The Oklahoman, Oklahoma Governor Kevin Stitt has reacted sharply to a legal settlement by the state's former attorney general. Under the settlement, a state district court in August ordered the State Health Department to reissue a birth certificate with a non-binary sex designation. Last week, Gov. Stitt issued a statement saying:

I believe that people are created by God to be male or female. Period. There is no such thing as non-binary sex and I wholeheartedly condemn the purported OSDH court settlement that was entered into by rogue activists who acted without receiving proper approval or oversight.

Oklahoma House Speaker Charles McCall contended that the settlement is invalid because state law requires any settlement that "substantially impacts the operation or programs of a state agency" be reviewed first by legislative leaders and the governor's office. A member of the legislature has already pre-filed a bill to prevent non-binary designations on birth certificates in the future. Oklahoma House Minority Leader Emily Virgin says she is disgusted by the Governor's statement. [Thanks to Scott Mange for the lead.]

U.S. Returns As Member Of U.N. Human Rights Council

As reported by CNN, on Thursday the United States was elected by the U.N. General Assembly to the United Nations Human Rights Council. This reverses the Trump Administration's withdrawal from the Council three years ago. US Ambassador to the United Nations Linda Thomas-Greenfield, commenting on the U.S.'s role, said in part:

[W]e will promote respect for fundamental freedoms and women's rights, and oppose religious intolerance, racial and ethnic injustices, and violence and discrimination against members of minority groups, including LGBTQI+ persons and persons with disabilities....

[The U.S.]  will oppose the Council's disproportionate attention on Israel, which includes the Council's only standing agenda item targeting a single country.

Also on Thursday, President Biden announced his intention to nominate Michèle Taylor as U.S Representative to the UN Human Rights Council with the rank of Ambassador. The Atlanta Jewish Times has extensive background information on Taylor.

Supreme Court Grants Extra Rapid Review In Texas Abortion Cases, But Postpones Granting Interim Stay

The U.S. Supreme Court today took action to decide quickly whether Texas has effectively shielded its new "heartbeat" abortion law (S.B. 8) from review.  In two cases in which emergency relief was sought, the Court granted review ahead of any decision by the Court of Appeals. In Whole Woman's Health v. Jackson, it granted a petition for certiorari before judgment. (Order List). In the case, the Supreme Court previously refused to prevent Texas' S.B.8 from continuing in effect while its constitutionality is being litigated. (See prior posting.) Also today, the Court acted in United States v. Texas, the Justice Department's challenge to the Texas law.  The Court granted certiorari before judgment and "deferred pending oral argument" the government's motion to vacate the 5th Circuit's stay of the district court's injunction barring enforcement of S.B.8. The grant of review was limited to:

May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.

This parallels the question presented by the Petition for Certiorari in Whole Woman's Health:

[W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.

In both cases, the Court ordered that petitioners' briefs (as well as any amicus briefs) be filed electronically by Oct. 27, and reply briefs be filed by Oct. 29. Oral argument in both cases is set for Nov. 1.

Justice Sotomayor filed a dissent to the Court's refusal in United States v. Texas to grant an immediate stay, pending the appellate process, of enforcement of the law, saying in part:

[T]he Court’s failure to issue an administrative stay of the Fifth Circuit’s order pending its decision on this application will have profound and immediate consequences. By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended... 

 CNN reports on the Court's action, as does the New York Times.

Catherine Lhamon Confirmed By Senate To Head DOE's Office For Civil Rights

On Wednesday, the United States Senate confirmed the nomination of Catherine Lhamon to be Assistant Secretary for Civil Rights at the U.S. Department of Education.  The vote was 51-50, with Vice-President Harris casting a tie-breaking vote. This returns Lhamon to a position she held under the Obama administration. According to Education Week:

During her first tenure under Obama, Lhamon oversaw the office when it helped draft 2016 guidance to schools directing them to allow transgender students to use facilities like restrooms and locker rooms that matched their gender identity.

Canadian Court Upholds COVID Restrictions On Churches

In Gateway Bible Baptist Church v. Province of Manitoba, (MBQB, Oct. 21, 2021), a Manitoba (Canada) trial court, in a 156-page opinion, upheld against constitutional challenges the public health restrictions imposed by the province on gatherings at places of worship and at private homes.  Plaintiffs were several churches and individuals. The court concluded that while the restrictions infringed the rights to freedom of conscience and religion; freedom of thought, belief, opinion and expression; and freedom of peaceful assembly, the Public Health Orders are constitutionally justifiable as reasonable limits under Section 1 of the Charter of Rights and Freedoms. The court said in part:

[T]he decision to temporarily close places of worship and otherwise limit the size of gatherings, was rational, reasoned and defensible in the circumstances of an undeniable public health crisis.

The court went on to conclude that the restrictions did not infringe the rights of liberty or security and did not amount to religious discrimination. The court said in part:

It is the position of the applicants that the impugned PHOs discriminate on the basis of religion in that they classify liquour, cannabis and big-box retailers as “essential” and therefore allow them to remain open [while they] classify churches and religious gatherings as “non-essential”.... Put simply, the applicants submit that it is discriminatory to allow people to assemble in liquor and grocery stores, but not worship at church.... [T]he applicants have inaccurately described Manitoba’s use of the adjective “essential” as it relates to churches and religious gatherings just as they have also failed to appreciate that the distinction in question (between what is permitted to remain open and what must remain closed) is not based on religion.

The Justice Centre for Constitutional Freedoms issued a press release discussing the decision.

European Court Says Tabloid Coverage Of Deceased Priest Violated Privacy Rights

In M.L. v. Slovenia, (ECHR, Oct. 14, 2021), the European Court of Human Rights held that Article 8 (Respect for private life) of the European Convention on Human Rights was violated when Slovenian courts rejected claims that the mother of a deceased Roman Catholic priest brought against three newspapers. The son had been convicted in 1999 and 2002 on charges growing out of homosexual conduct. The son died in 2006, apparently of suicide. In 2008, three tabloid newspapers published sensationalized stories about the son's life. The Court said in part:

[I]t was crucial in the present case that the domestic courts make a careful assessment of the presence and level of public interest in the publishing of the information in question, and that the domestic courts strike a balance between any such public interest and the applicant’s individual interests....

[T]he domestic courts failed to carry out a balancing exercise between the applicant’s right to private life and the newspaper publishers’ freedom of expression in conformity with the criteria laid down in the Court’s case-law.

The Court awarded damages of 5000 Euros plus costs.  The Spectator reports on the decision.

Defamation Suit Filed By Prominent Pastor Against Former Southern Baptist Ethics Commission Head

Suit was filed this week in a Tennessee federal district court by Michael Stone, a prominent Southern Baptist pastor of a congregation in Georgia, against Russell Moore, former head of the Ethics and Religious Liberty Commission (ERLC) of the Southern Baptist Convention. The complaint (full text) in Stone v. Moore, (MD TN, filed 10/18/2021), alleges that soon after Stone, as Chairman of the Executive Committee, began to serve on a task force created to assess whether the actions of ERLC and Moore were negatively affecting the Southern Baptist Convention's fiscal well-being, Moore defamed him in two letters leaked to the news media. According to the complaint:

The First Letter ... contained numerous false allegations against Plaintiff, who was then a prominent candidate for the presidency of the SBC.... [It] indirectly identifies Plaintiff by alleging that “the current chairman of the Executive Committee” and the “Executive Committee... ‘exonerated’ churches, in a spur-of-the-moment meeting, from serious charges of sexual abuse cover-up.”...

[A]dditional statements made by Defendant in the First Letter, including a statement declaring the existence of an SBC “culture where countless children have been torn to shreds, where women have been raped” are demonstrably false.

Stone seeks damages of $750,000 for libel, false light invasion of privacy and intentional infliction of emotional distress. Religion News Service has more background on the case.

DC Circuit: USCIS Denial Of Religious Worker Visa Violated RFRA

In National Capital Presbytery v. Mayorkas, (D DC, Oct. 19, 2021), the D.C. federal district court held that USCIS violated the Religious Freedom Restoration Act when it refused to renew the R-1 nonimmigrant religious worker visa for one of National Capital Presbytery's (NCP) ministers who is a citizen of Myanmar. The church applying for a R-1 visa must show how it intends to compensate the religious worker. Here the agency's Administrative  Appeals Office concluded that NCP had not adequately shown this. The court said in part:

Plaintiffs note that Defendants promulgated the compensation regulation to improve its “ability to detect and deter fraud and other abuses in the religious worker program.”... No compelling interest exists here. Defendants do not argue that NCP does not exist, or that there is any fraud afoot here. Given the interest the compensation regulation serves, and that Defendants do not allege fraud, they cannot show a compelling interest in denying NCP’s petition for the reasons asserted....

Justice Breyer Refuses To Enjoin Maine Vaccine Mandate Pending Appeal

As previously reported, a Maine federal district court rejected claims by health care employees that Maine violated their free exercise rights when it eliminated religious exemptions from its COVID vaccine mandate for health care workers. The 1st Circuit refused to issue an injunction pending appeal, and plaintiffs sought similar relief from the U.S. Supreme Court through a filing with Justice Breyer. Yesterday in John Does 1-2 v. Mills, Justice Breyer issued an Order reading:

The application is denied without prejudice to applicants filing a new application after the Court of Appeals issues a decision on the merits of the appeal, or if the Court of Appeals does not issue a decision by October 29, 2021.

AP reports on developments.

Christian Employers Group Challenges HHS And EEOC Protection for Transgender Health Care

Suit was filed this week in a North Dakota federal district court by a Christian membership ministry that serves for-profit and non-profit employers challenging two federal rules on health care coverage for gender transition surgery. At issue are (1) an EEOC interpretation of Title VII that requires employers to cover gender transition services in their health plans; and (2) An HHS non-discrimination requirement that forces religiously-affiliated healthcare providers to perform gender transition surgeries, procedures, counseling, and treatments. The complaint (full text) Christian Employers Alliance v. U.S. EEOC, (D ND, filed 10/18/21), alleges in part:

31. CEA members believe and teach that each human being bears the image and likeness of God, and that the two, distinct biological sexes of male and female are complementary and together reflect the image and nature of God.

32. CEA members believe and teach that rejection of one’s biological sex is a rejection of the image of God within that person.

The suit alleges violations of RFRA, free exercise and free speech protections. ADF issued a press release announcing the filing of the lawsuit.

Appellate Court Says Injunction Against Church Picketer Was Too Broad

In Tenth Presbyterian Church v. Snyder, (PA Super, Oct. 18, 2021), a Pennsylvania state appellate court held that the trial court was justified in issuing a preliminary injunction against Phillip Snyder, an excommunicated member of the church, who picketed the church every Sunday. However the appellate court held that the preliminary injunction's requirement that Snyder remain at least 5,000 feet from the church property was not narrowly enough tailored. The appellate court pointed out that Snyder had engaged in aggressive and agitated behavior that frightened Church members, and that he carried a concealed firearm. Nevertheless, it concluded:

[T]he trial court couched its preliminary injunction in the broadest terms to protect the interest of the Church and its members, disregarding Snyder’s constitutional right to protest the Church and its leadership. A five-thousand-foot restriction places Snyder well beyond the point at which his constitutional right to protest is utterly extinguished.  Put succinctly, the five-thousand-foot restriction is not “couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of public order.”

2nd Circuit Upholds Prison's Change In Schedule For Quaker Meetings

In Green Haven Prison Preparative Meeting of the Religious Society of Friends v. New York State Department of Corrections and Community Supervision, (2d Cir., Oct. 18, 2021), the U.S. 2nd Circuit Court of Appeals affirmed the district court's denial of a preliminary injunction to plaintiffs who are individual and groups of Quakers who object to changes in the schedules for Quaker meetings at a maximum security prison. The court held that as to quarterly meetings attended by incarcerated as well outside Quakers, the non-incarcerated plaintiffs had not shown that under RLUIPA the schedule change had imposed a substantial burden on their exercise of religion. As to weekly meetings attended only by incarcerated Quakers, plaintiffs had not exhausted their administrative remedies as required by the Prison Litigation Reform Act.

Justice Department Asks Supreme Court To Reinstate District Court's Injunction Against Texas Abortion Law

In United States v. Texas, the Justice Department today filed in the Supreme Court an Application (full text) to vacate the 5th Circuit's stay of a preliminary injunction that had been granted by a Texas federal district court. The application on the Court's Shadow docket was filed with Justice Alito who is assigned to take emergency filings from the 5th Circuit. At issue is the Justice Department's challenge to the Texas "heartbeat" abortion law. The Justice Department adds that the Court may treat this as a petition for a grant of certiorari before judgment. The Application says in part:

The question now is whether Texas’s nullification of this Court’s precedents should be allowed to continue while the courts consider the United States’ suit. As the district court recognized, it should not: The United States is likely to succeed on the merits because S.B. 8 is clearly unconstitutional and because the United States has authority to seek equitable relief to protect its sovereign interests -- including its interest in the supremacy of federal law and the availability of the mechanisms for judicial review that Congress and this Court have long deemed essential to protect constitutional rights.... 

Again, the Fifth Circuit disputed none of this. Instead, the divided panel’s one-paragraph order stayed the preliminary injunction solely for “the reasons stated in” two decisions addressing a prior challenge to S.B. 8.... But those reasons do not apply to this very different suit. Sovereign immunity forced the private plaintiffs in Whole Woman’s Health to sue individual state officers, and this Court and the Fifth Circuit questioned whether those officers were proper defendants. This suit does not raise those questions because it was brought against the State of Texas itself, and the State has no immunity from suits by the United States. The Fifth Circuit ignored that distinction, which refutes the court’s only justification for the stay.

Justice Alito ordered Texas to file a response by noon on Thursday.  Twenty-three states and the District of Columbia filed a joint amicus brief (full text) in support of the Justice Department.

CNN reports on these developments.

Recent Articles of Interest

From SSRN:

• Caroline Mala Corbin, The Pledge of Allegiance Revisited: Requiring Parental Consent, (Indiana Law Journal, Forthcoming).
• Rafael Domingo Osle, The Right to Religious Freedom: Extension or Erosion?, (Tom Angier, Iain Benson, and Marc Retter (eds), Handbook on Natural Law and Human Rights (Cambridge University Press Forthcoming)).
• Mohammad Fadel, Sovereignty, Territoriality and Islamic Private International Law, (October 12, 2021).

From SmartCILP:

• UCLA Journal of Islamic and Near Eastern Law, Vol. 18 (2020): Engy Abdelkader, China's Repression of Uigher Muslims: A Human Rights Perspective in Historical Context; Yael Efron & Mohammed S. Watad, When "Allahu Akbar" Becomes a Crime: The Israeli Case; Hallie Ludsin, International Human Rights Law and Religious and Cultural Law: Breaking the Impasse; Ryan Riegg, Sources of Saudi Conduct: How Saudi Family Law and Royal Polygyny Produce Political Instability.