Nurse's Religious Objections Should Have Been Accommodated Under Illinois Right of Conscience Act

 In Rojas v. Martell,(IL Cir. Ct., Oct. 25, 2021), an Illinois state trial court held that under Illinois Healthcare Right of Conscience Act, a county Health Department Clinic should have accommodated the objections of a nurse who on religious grounds would not participate in abortion referrals or provide contraceptives to patients. However, the court found that plaintiff was entitled only to the statutory minimum damages of $2500 because she should have mitigated damages by pursuing a position that was available at a nursing home. The court summarized its holding:

[W]hen one member of a team of employees makes an objection of conscience to performing a minority of her job duties, the employer should be required to accommodate the employee in her present position if doing so does not unreasonably compromise the employer's operations.

ADF issued a press release announcing the decision.

Suit Seeking Permission For Sidewalk Proselytizing Moves Ahead

In Peters v. Metropolitan Government of Nashville & Davidson County, Tennessee, (MD TN, Nov. 1, 2021), a Tennessee federal district court allowed plaintiffs who were prevented from religious proselytizing in areas, including the plaza and sidewalks, outside Nashville's Bridgestone Arena to move ahead with most their 1st and 14th Amendment, and failure-to-train, claims. The court said in part:

Drawing all reasonable inferences in favor of the Plaintiffs, it is reasonable to infer that Metro police officers were enforcing the Arena Policies with the approval or direction of the Metro legal department. At the motion to dismiss stage, this is sufficient to allege plausibly the existence of a municipal policy or custom.

California Ban On Harassing Persons Entering Vaccination Site Violates 1st Amendment

In Right to Life of Central California v. Bonta, (ED CA, Oct. 30, 2021), a California federal district court issued a temporary restraining order barring enforcement of a portion of a California statute that protects patients near vaccine sites from "harassment." The statute was challenged by a right-to-life organization that approaches women entering a Planned Parenthood clinic. The clinic is covered by the statute because it offers HPV vaccine. The court concluded that the 1st Amendment's free speech protections are violated by the prohibition on "harassing" anyone entering or exiting within 100 feet of the site.  The harassment ban bars approaching within 30 feet of such person to give them a leaflet or handbill, or to display a sign, or engage in oral protest, education or counseling. The court did not enjoin enforcement of the ban on obstructing, injuring, intimidating, or interfering with such person.  ADF issued a press release announcing the decision.

Illinois Legislature Eliminates Religious Exemption For COVID Vaccine Employer Mandates

Last week, the Illinois legislature gave final passage to SB 1169 (full text) which amends the Illinois Health Care Right of Conscience Act to provide:

It is not a violation of this Act for any person or public official, or for any public or private association, agency, corporation, entity, institution, or employer, to take any measures or impose any requirements ... intended to prevent contraction or transmission of COVID-19....

JD Supra explains:

The HCRCA has recently gained notoriety as a way for individuals to avoid complying with employer-mandated vaccine and testing policies and other COVID-19 safety measures. The HCRCA was enacted primarily to ensure that health care providers would not be compelled to participate in providing health care services that they find morally objectionable, such as performing abortions or dispensing contraceptives. However, the HCRCA is broadly worded.... 

While these protections are similar in some ways to Title VII in terms of requiring employers to accommodate employee religious beliefs ..., unlike Title VII, the HCRCA has no “undue hardship” exemption, even if granting an exception would create a significant risk to health and safety or prevent the employer from complying with federal or state regulations.

Religious Exemptions From Title VII Allow LGBTQ Employment Discrimination

In Bear Creek Bible Church v. EEOC, (ND TX, Oct. 31, 2021), a Christian church and a Christian-owned business filed a class action in a Texas federal district court seeking religious exemptions from provisions of Title VII of the Civil Rights Act of 1964. Under the U.S. Supreme Court's Bostock case, Title VII's ban on sex discrimination prohibits employment discrimination based on sexual orientation or gender identity. The court, in a 70-page opinion, held that as to churches and similar religious employers, the religious organization exemption in Title VII allows more than just religious discrimination:

[A] religious employer is not liable under Title VII when it refuses to employ an individual because of sexual orientation or gender expression, based on religious observance, practice, or belief.

As to businesses that assert a religious objection to homosexual and transgender behavior, the court held that Title VII substantially burdens their religious exercise in conducting business, in violation of the Religious Freedom Restoration Act as well as of the 1st Amendment's Free Exercise and Freedom of Association protections.

The court went on to rule on several other questions which the Supreme Court's Bostock decision arguably left unresolved. It concluded: 

• Title VII bars discrimination against bisexuals, just as it does against gays, lesbians and transgender individuals. 
• Policies that require employees to refrain from certain sexual activities, including sodomy, premarital sex, adultery, and other sexual activity outside of marriage between a man and a woman are permitted because they do not apply exclusively to bar homosexual conduct.
• Sex-specific dress codes based on biological sex are permitted because they apply evenly to those who identify with their biological sex and to transgender individuals.
• Policies that prohibit employees from obtaining genital modification surgery or hormone treatment for gender dysphoria violate Title VII.
• Title VII allows employers to have policies that promote privacy, such as requiring the use of separate bathrooms on the basis of biological sex.

Bloomberg Law reports on the decision.

Supreme Court GVR's Challenge To New York's Abortion Coverage Mandate

In Roman Catholic Diocese v. Emami, (Docket No. 20-1501, GVR, 11/1/2021) (Order List) the U.S. Supreme Court today granted certiorari, vacated the judgment below and remanded the case to New York's Appellate Division for further consideration in light of Fulton v. Philadelphia. Justices Thomas, Alito and Gorsuch would have granted full review of the New York decision. In the case, the New York court rejected a challenge by several religious organizations and other plaintiffs to a New York administrative regulation requiring health insurance policies in New York to provide coverage for medically necessary abortion services. (See prior posting.) Becket Law issued a press release discussing the Court's action.

Certiorari Denied In Catholic Hospital's Free Exercise Claim

The U.S. Supreme Court today denied review in Dignity Health v. Minton, (Docket No. 19-1135, certiorari denied 11/1/2021) (Order List.) Justices Thomas, Alito and Gorsuch would have granted review. In the case, a California state appellate court (full text of opinion) held that California's Unruh Civil Rights Act allows a suit against a Catholic hospital for unequal access by a transgender man whose doctor was not permitted to perform a hysterectomy on him at the hospital. The hospital argued that performing the procedure would violate its long-held religious beliefs.

Recent Articles of Interest

 From SSRN:

• Charlie Martel, Racism and Bigotry as Grounds for Impeachment, (New York University Review of Law and Social Change, 45 Rev. L. & Soc. Change 101 (2021)).
• Muhammad Abdullah Fazi, Post-9/11 U.S. Immigration Laws and Implications for Muslims, (Hong Kong Journal of Social Sciences 2021).
• Gunjan Dubey & Ibrahima Haneef, Status of Indian Muslims with Special Consideration to Their Educational Attainment, (January 22, 2021).
• Robert W. Tuttle, Foster Care and the Growing Tension Between the Religion Clauses: A Comment on Rogers v. HHS, (60 Family Court Review ___ (forthcoming 2022)).
• Chao-Ju Chen, Single Equality in the Age of Marriage Equality,  (International Journal of Constitutional Law, Volume 18, Issue 2, July 2020, Pages 461–465).

From SmartCILP:

• Branton J. Nestor, Revisiting Smith: Stare Decisis and Free Exercise Doctrine, 44 Harvard Journal of Law & Public Policy 403-462 (2021).

Supreme Court Will Hear Arguments Today In Texas "Heartbeat" Abortion Ban

The U.S. Supreme Court will hear arguments this morning in two cases challenging the Texas "heartbeat" abortion ban. The question the Supreme Court agreed to consider is not the ultimate constitutionality of the ban, but whether Texas has effectively insulated the law from pre-enforcement challenge.  In Whole Woman’s Health v. Jackson, the question presented by the petition for certiorari is:

whether 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 United States v. Texas, the Supreme Court's grant of certiorari was limited to the question:

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.

The SCOTUS blog case pages for the cases (1, 2 ) have links to all the filings by the parties, as well as to the numerous amicus briefs that have been filed. SCOTUS blog has an extensive preview of the arguments. The arguments will be streamed live by C-SPAN.  At 10:00 AM (EST) arguments in Whole Woman's Health can be heard here. At 11:00 AM (EST) arguments in U.S. v. Texas can be  heard here. I will update this post to furnish links to the transcripts and recordings of the arguments when those become available later today.

UPDATE: Here are links to the transcript and audio of arguments in Whole Woman's Health. And here are the links in United States v. Texas.

Pope Says Biden Should Not Be Denied Communion

According to a New York Times report yesterday:

President Biden told reporters on Friday that Pope Francis had called him a “good Catholic” and said he should keep receiving communion, an unexpected development that appeared to put a papal finger on the scale in a debate raging in the United States’ Roman Catholic Church over whether the president and other Catholic politicians who support abortion rights should be denied the sacrament....

Asked to confirm Mr. Biden’s remarks, Matteo Bruni, the Vatican spokesman, said the Holy See limited its comments to the news release about subjects discussed during the meeting and added, “It’s a private conversation.”

In a separate article today, the New York Times reports that President Biden received communion Saturday evening at St. Patrick’s Church in Rome, an English-speaking church dedicated to the American Catholic community. President Biden is in Italy for a meeting of G20 leaders, as well as for his meeting with Pope Francis.

Supreme Court, 6-3, Denies Injunction Pending Appeal In Maine COVID Vaccination Case

The U.S. Supreme Court yesterday, by a vote of 6-3, in John Does 1-3 v. Mills, (Sup. Ct., Oct. 29, 2021), refused to enjoin enforcement of Maine's COVID vaccine mandate while a petition for Supreme Court review of the 1st Circuit's decision is pending. Healthcare workers sued objecting to the absence of religious exemptions from the mandate. The 1st Circuit in an Oct. 19 opinion (full text) refused a preliminary injunction against enforcement. The Supreme Court's Order was issued without an accompanying majority opinion. However, Justice Barrett, joined by Justice Kavanaugh, issued a short concurring opinion which appears to recognize the concern with the Court's increasing use of its "shadow docket" to render important decision.  Justice Barrett wrote in part:

When this Court is asked to grant extraordinary relief, it considers, among other things, whether the applicant “‘is likely to succeed on the merits.’” ... I understand this factor to encompass not only an assessment of the underlying merits but also a discretionary judgment about whether the Court should grant review in the case.... Were the standard otherwise, applicants could use the emergency docket to force the Court to give a merits preview in cases that it would be unlikely to take—and to do so on a short fuse without benefit of full briefing and oral argument....

Justice Gorsuch, joined by Justices Thomas and Alito, filed an opinion dissenting from the denial of injunctive relief, saying in part:

Maine has so far failed to present any evidence that granting religious exemptions to the applicants would threaten its stated public health interests any more than its medical exemption already does.

This case presents an important constitutional question, a serious error, and an irreparable injury.... [H]ealthcare workers who have served on the front line of a pandemic for the last 18 months are now being fired and their practices shuttered. All for adhering to their constitutionally protected religious beliefs. Their plight is worthy of our attention.

SCOTUS blog reports on the decision.

Biden Meets With Pope Francis

As reported by CNN, President Joe Biden met for 90 minutes this morning with Pope Francis at the Vatican. The White House released a brief readout (full text) of the meeting, which said:

In his audience with Pope Francis today, President Biden thanked His Holiness for his advocacy for the world’s poor and those suffering from hunger, conflict, and persecution. He lauded Pope Francis’ leadership in fighting the climate crisis, as well as his advocacy to ensure the pandemic ends for everyone through vaccine sharing and an equitable global economic recovery.

After his audience with the Pope, Biden met with Vatican Secretary of State Cardinal Parolin. They discussed a variety of issues (White House readout), including advocacy for religious freedom world-wide.

Supreme Court Lifts Stay Of Execution Despite Inmates' Religious Objections To Sentence Conditions

The U.S. Supreme Court yesterday, by a vote of 5-3, in a brief Order (full text) vacated a stay of execution that had been entered by the 10th Circuit in Crow v. Jones (Sup. Ct., Docket No. 21A116). According to the New York Times:

The inmates, John Marion Grant and Julius Jones, had argued that the state’s [Oklahoma's] lethal injection protocol, which uses three chemicals, could subject them to excruciating pain.

They also objected on religious grounds to a requirement imposed by a trial judge that they choose among proposed alternative methods of execution, saying that doing so would amount to suicide.

President Biden's Statement On International Religious Freedom Day

Yesterday was International Religious Freedom Day, commemorating the signing of the International Religious Freedom Act of 1998.(Current version). Yesterday President Biden issued a Statement (full text) marking the day, saying in part:

We stand in defense of religious freedom not only as an expression of our deepest values but also because it is a vital national security priority. The United States will continue to rally the globe to protect and promote the right of freedom of religion or belief, including through multilateral coalitions such as the International Religious Freedom or Belief Alliance.

2nd Circuit Hears Arguments On New York Vaccine Mandate

The U.S. 2nd Circuit Court of Appeals yesterday heard oral arguments in Dr. A v. Hochul. (Audio of oral arguments (mp3 file download)). In the case, a New York federal district court issued a preliminary injunction to health care workers who object to the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID. (See prior posting.) The case was consolidated for oral argument with We the Patriots USA, Inc. v. Hochul which poses similar issues. (Memorandum of Law ).

Texas Governor Signs Ban On Transgender Girls Participating On Female Sports Teams

On Monday, Texas Governor Gregg Abbott signed HB 25 (full text) which requires transgender students on interscholastic high school athletic teams to compete only on teams that conform to their biological sex as specified on their original birth certificate. The only exception is for female students competing on male teams when no female team is available. The law states that its purpose is:

to further the governmental interest of ensuring that sufficient interscholastic athletic opportunities remain available for girls to remedy past discrimination on the basis of sex.

KRIS TV reports on the new legislation. [Thanks to Scott Mange for the lead.]

Washington Vaccine Mandate Upheld Over Free Exercise Challenge

 In Wise v. Inslee, (ED WA, Oct. 25, 2021), a Washington federal district court refused to enjoin Washington state's COVID vaccine mandate for for educators, healthcare workers, and state employees and contractors. One claim was that the mandate violates free exercise rights. The mandate recognizes that individuals may be entitled to disability related or religious accommodations under various anti-discrimination statutes. According to the court:

Plaintiffs appear to argue Proclamation 21-14 is facially neutral but not generally applicable because it essentially creates “an unlawful faith-based barrier to gainful employment.”....

As Defendants rightly indicate, because there are no exemptions for political, personal, or other objections, if anything, the Proclamation encourages religious practice....   Plaintiffs cannot demonstrate a discriminatory application solely because they disagree with the availability of accommodations. Plaintiffs have failed to demonstrate how the Proclamation is not generally applicable....

Plaintiffs’ objections to the Proclamation relate primarily to their disagreement with Defendants’ judgment regarding public health, which is insufficient to overcome the constitutionality of Defendants’ actions in enacting and promulgating the Proclamation, regardless of which level of scrutiny is applied.

Center Square reports on the decision.

Christian Student Group Challenges University's Non-Discrimination Policy

Suit was filed this week in a Texas federal district court by a Christian student organization at the University of Houston challenging the University's non-discrimination policy that led to a denial of recognition of the group as a Registered Student Organization. The complaint (full text) in Ratio Christi at the University of Houston- Clear Lake v. Khator, (SD TX, filed 10/25/2021), contends that the University violated the 1st and 14th Amendments by:

a. Denying Ratio Christi registered status because it requires that its officers, who have religious responsibilities, share the organization’s religious beliefs and support its purposes;

b. Conditioning a student organization’s access to campus resources and student services fee funding on a system where UHCL officials have unbridled discretion... [and [c]] must consider multiple content- and viewpoint-based factors; and

d. Compelling Plaintiffs to pay student service fees into a system that is viewpoint discriminatory.

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

UPDATE: ADF announced on Oct. 29 that the University has now recognized Ratio Christi as a Registered Student Organization.

New Survey of Antisemitism In U.S. Released

The American Jewish Committee yesterday released it latest annual State of Antisemitism in America report. It includes a Survey of American Jews, a Survey of the U.S. General Public, and a Comparison of the two surveys. Among other things, it indicates that 40% of American Jews and 21% of the general public think that anti-Semitism is a "very serious problem."

EEOC Updates Guidance On Religious Objections To COVID Vaccine

The Equal Employment Opportunity Commission yesterday announced an update to its Technical Assistance Questions and Answers, adding Part L Title VII and Religious Objections to COVID-19 Vaccine Mandates. The extensive new guidance provides in part:

The employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement.  Although prior inconsistent conduct is relevant to the question of sincerity, an individual’s beliefs – or degree of adherence – may change over time and, therefore, an employee’s newly adopted or inconsistently observed practices may nevertheless be sincerely held.  An employer should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others.  No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

When an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation.

Bloomberg Law reports on the new guidance.