Catholic School Parents Lose Challenge To School Mask Requirement

In  Resurrection School v. Hertel, (WD MI, Nov. 3, 2021), a Michigan federal district court refused to issue a preliminary injunction against a county health department COVID order requiring (with certain exceptions) all persons in indoor educational settings to wear face coverings. Parents of Catholic school students argued that the order violates their free exercise rights because masks in school inhibit their children's Catholic education. The court said in part:

[Plaintiffs] argue that ... they are likely to succeed on the merits ... because (1) the emergency order targets Catholic and private schools, (2) the emergency order does not pass strict scrutiny ... and (3) the emergency order is not generally applicable because it only applies to schools and not all public spaces. The Court does not find any of these arguments to be persuasive and instead finds that Plaintiffs are not likely to succeed on the merits.

Magistrate Says Texas Pension Participant Lacks Standing To Challenge Israel Boycott Law

In Abdullah v. Paxton, (WD TX, Nov. 8, 2021), a Texas federal magistrate judge recommended dismissing on standing and sovereign immunity grounds a suit by a participant in the Texas Employee Retirement System (ERS) challenging a Texas law that requires ERS to divest fund assets from companies that boycott Israel if divestment can be carried out without harming the value of fund. Plaintiff claims that the divestment requirement violates his free speech, Establishment Clause and due process rights. He also asserts a dormant commerce clause claim. The court said in part:

[A] Declaratory Judgment that Section 808 is unconstitutional and enjoinment of its use would have no effect on Abdullah’s financial interests or his ultimate annuity payments. Abdullah has failed to allege a harm to him that would be redressed by a finding that Section 808 violated his rights. He therefore does not have standing to bring this claim.

Navy's Limits On Religious Exemptions To Vaccine Mandate Are Challenged

New litigation over limited religious exemptions to COVID vaccine mandates continues to arise.  This time, 35 members of the U.S. Navy filed suit in a Texas federal district court contending that the Navy's policy of denying exemptions or disqualifying from special operations deployment personnel who claim a religious exemption violates their rights under RFRA and the 1st Amendment, as well as the Administrative Procedure Act. The complaint (full text) in U.S. Navy SEALs 1-26 v. Biden, (ND TX, filed 11/9/2021) alleges a wide variety of religious objections held by various of the plaintiffs who represent Catholic, Protestant and Eastern Orthodox traditions:

60. Plaintiffs believe that receiving a COVID-19 vaccine that was tested, developed, or produced using aborted fetal cell lines would force them to violate their sincerely held religious beliefs by causing them to participate in the abortion enterprise, which they believe to be immoral and highly offensive to God....

63. Multiple Plaintiffs hold to the sincere religious belief that the human body is God’s temple, and that they must not take anything into their bodies that God has forbidden or that would alter the functions of their body such as by inducing the production of a spike protein in a manner not designed by God....

73. Multiple Plaintiffs hold to the sincere religious belief that, upon seeking guidance from God as to whether to receive a COVID-19 vaccine, God instructed them not to do so.

74. One Plaintiff holds to the sincere religious belief that trace animal cells in the COVID-19 vaccines, such as from swine, should not be injected into his body.

First Liberty issued a press release announcing the filing of the lawsuit.

 

Bipartisan Infrastructure Bill Provides Grants For Non-Profits To Increase Energy Efficiency

H.R.3684, the bipartisan Infrastructure Investment and Jobs Act, which was passed by Congress last week and now awaits President Biden's signature includes a provision (Sec. 40542) that permits Section 501(c)(3) non-profit organizations to apply for grants of up to $200,000 for materials to make their buildings more energy-efficient. The grants are available for buildings "operated and owned" by a non-profit. Among the criteria to be considered in awarding a grant is "the financial need of the applicant." The bill authorizes a total of $50 million for the program through the year 2026. The Forward reports on these provisions.

Supreme Court Hears Arguments On Role Of Chaplain In Execution Chamber

The Supreme Court hears oral arguments this morning in Ramirez v. Collier. In the case, a convicted murderer is suing for permission to have his pastor lay hands on him as he receives a lethal injection and dies. The 5th Circuit, by a vote of 2-1, affirmed a Texas federal district court's refusal to grant a stay of execution. However the Supreme Court granted a stay and scheduled early oral argument in the case. (See prior posting.) Here is the SCOTUS blog case page with links to filings in the case. AP has more background. The oral arguments will be live-streamed here. I will update this post with links to the transcript and audio of the oral arguments when they become available.

UPDATE: Here are links to the transcript and audio of arguments in the case. SCOTUS blog reports on the oral arguments.

Pastor Sues Real Estate Organization Over Ethics Rule On Hate Speech

Suit was filed last week in a Montana state trial court against a local chapter of the National Organization of Realtors by Pastor Brandon Huber who is also a part-time realtor challenging the National Organization's Code of Ethics provision that prohibits realtors from using "harassing speech, hate speech, epithets, or slurs based on race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity." The Code of Ethics provision applies to all activities of a realtor, not just to those related to real estate transactions. 

The complaint (full text) in Huber v. Missoula Organization of Realtors, Inc., (MT Dist. Ct., filed 11/3/2021), states that the Missoula Organization of Realtors has scheduled an ethics hearing for Huber after a complaint regarding his use of language about gays and lesbians. Huber says that his church merely ended its partnership with a summer kid's lunch program when it discovered that LGBTQ Pride inserts that violated the church's religious teachings were included with the lunches. The church instead began its own lunch program, and explained its decision in a letter to its congregation. The complaint alleges that the ethics provision is void for vagueness and that the action by the realtors' organization violates Art. II, Sec. 4 of the Montana Constitution which provides:

... Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.

Volokh Conspiracy reports on the lawsuit.

Labor Department Proposes Rescinding Trump Era's Broad Religious Employer Exemption Rule

The Department of Labor yesterday released a proposal (full text) to rescind a Trump Administration rule (see prior posting) that defined expansively the religious exemption in the agency's rules imposing anti-discrimination requirements on government contractors and subcontractors. Yesterday's Release says in part:

OFCCP believes that the 2020 rule creates a lack of clarity regarding the scope and application of the exemption because ... it misstates the law in key respects. In addition, as a threshold matter, OFCCP has reevaluated the need for the rule. For the 17 years prior to 2020, OFCCP implemented the Executive Order 11246 religious exemption without seeking to codify its scope and application in specific regulatory language....

[T]he 2020 rule creates its own religious employer test, independent of Title VII case law interpreting the identical term. The test adopted in the 2020 rule permits a contractor whose purpose and/or character is not primarily religious to qualify for the Executive Order 11246 religious exemption....

In addition, the 2020 rule retreats from the general principle that qualifying religious employers are prohibited from taking employment actions that amount to discrimination on the basis of protected characteristics other than religion, even if the decisions are made for sincerely held religious reasons....

FCW reports on the proposed rule rescission.

School Must Offer Alternatives To Nursing Students Who Assert Religious Objection To COVID Vaccination Requirement

In Thoms v. Maricopa County Community College District,(D AZ, Nov. 5, 2021), an Arizona federal district court granted a preliminary injunction to two nursing students who sought religious exemptions from the COVID vaccination requirement they faced in order to complete their 3-day clinical rotation. Originally the school required all students to comply with the placement requirements of its most stringent clinical partner, but later modified this for students doing their rotation at a clinic that had less stringent standards. However this did not help plaintiffs since their clinic required universal vaccination with no religious exemptions. The court held that under Arizona's Free Exercise of Religion Act, the school had not shown that it met the compelling interest/ least restrictive means test.  It undermined its interest in preventing the spread of COVID by allowing religious exemptions when students were assigned to rotations at clinics which did not mandate vaccination. It also had options such as simulated clinical experiences that could be offered as accommodations. The court applied a similar strict scrutiny analysis to plaintiffs' 1st Amendment free exercise claim, finding that the school's policy is not a generally applicable one since in at least one case the school provided an alternative to in-person clinicals.

Before-School Religious Club Requirement To Play Basketball OK'd

In K.K. & K.K. v. Comer, (ED TN, Nov. 5, 2021), a Tennessee federal district court dismissed a suit brought by the married lesbian mothers of a middle school student challenging a before-school basketball program which allowed students to participate only if they also participated in the Teens For Christ Club. The court dismissed the claim against the Knox County Board of Education, saying in part:

Plaintiff’s allegations only suggest that a policymaker was aware of the existence of the Teens for Christ Club, but Plaintiff’s allegations do not go so far as to make it plausible that a final policymaker was put on notice of ongoing unconstitutional conduct like the alleged condition precedent.

The court also found that plaintiffs had failed to allege sufficient facts to support their claim that the school board failed to adequately train employees.

In addition, the court went on to dismiss the Establishment Clause claim brought against the physical education teacher involved on qualified immunity grounds, saying in part: 

Defendant Comer argues that the Court must assume that he was reading from the Bible and proselytizing to voluntary participants of the Teens for Christ Club and simply allowed those participants to shoot basketballs in the gymnasium before school. Lastly, Defendant Comer asserts that while he was allegedly reading from the Bible to the voluntary participants, he was lawfully exercising his own First Amendment rights....

Plaintiff cites to no caselaw clearly establishing that it is patently unconstitutional for a teacher like Defendant Comer to allow a religious school club to use the school gymnasium to shoot basketballs outside of regular school hours.

Recent Articles of Interest

From SSRN:

• Benjamin Porat, From a Conception of Territorial Jurisdiction to a Conception of Extra-Territorial Jurisdiction: A Study of a Tannaitic Legal Transition, (AJS Review (Forthcoming)).
• Walter Edward Afield, Framing Tax Enforcement Against the Poor Through Catholic Social Teaching, ((October 28, 2021), Canopy Forum).
• Britta van Beers & Gareth T. Davies, Human Dignity and Bioethics at the Beginning and End of Life, (in G.N.Cornelisse and C.H. Slingenberg (eds) Fundamental Rights in Europe (forthcoming, Edward Elgar, 2022)).

From SmartCILP and elsewhere:

• Journal of Law & Religion, Vol. 36, Issue 2 (Aug. 2021).
• Erwin Chemerinsky & Michele Goodwint, Civil Liberties in a Pandemic: The Lessons of History, 106 Cornell Law Review 815-850 (2021).

Supreme Court Will Hear Oral Arguments In FISA And Muslim Surveillance

The U.S. Supreme Court this morning will hear oral arguments in Federal Bureau of Investigation v. Fazaga. This case grows out of a suit for damages against FBI agents for discriminatory surveillance of Muslims in California. The issue for the Supreme Court is whether a provision in FISA displaces the state secrets privilege to allow the district court to move ahead in camera, rather than dismissing the claims. Here is the SCOTUS blog case page with links to all of the filings in the case. The arguments will be streamed live by the Court at 10:00 AM from this link. Al Jazeera has a lengthy report on the background of the case. When the transcript and audio of today's oral arguments become available, I will update this post with links.

UPDATE: Here are links to the transcript and audio of the oral arguments. AP reports on the oral arguments.

Ministerial Exception Doctrine Requires Dismissal Of Priest's Interference With Contract Claim

In Tracy v. O'Bell, (PA Super., Nov. 5, 2021), a Pennsylvania state appellate court held that the ministerial exception doctrine requires dismissal of a tortious interference with contract suit by Father Tracy, a Catholic priest, against three influential lay members of the Catholic parish which employed Tracy.  Tracy alleges that these members made false and defamatory statements to parish members and to the bishop in order to have him removed from his position after he discovered unexplained amounts of parish cash in a file cabinet under defendants' control. The court said in part:

[T]he First Amendment provides special protection to communications regarding the selection and retention of religious ministers.... [O]ur result does not insulate lay people from liability from defamatory statements against clergy. Nor do we deprive clergy of the ability to seek to redress all civil wrongs committed against them by lay people. We have no occasion to address those questions. Appellant’s complaint is very specific—he alleges that Appellees, through their communications with the local bishop and others, sought and successfully procured Appellant’s removal from ministry. Our holding is correspondingly narrow—Appellant’s allegations are inextricably intertwined with his removal from ministry, and therefore the trial court properly sustained Appellees’ preliminary objection based on the ministerial exception. 

Greek Top Court Bans Kosher and Halal Slaughter

Last week, Greece's highest administrative court-- the Hellenic Council of State-- in a ruling essentially banned kosher and Halal slaughter of animals in Greece. As reported by Israel Hayom:

The ruling saw the court revoke the standing slaughter permit, which was provided through a ministerial decision that exempted ritual Jewish and Muslim slaughter practices from the general requirement to stun animals prior to killing them.

The ruling further called on Greek lawmakers to devise a way to meet the demands of animal rights advocates and the needs of Jews and Muslims who follow the laws about food in their traditions.

According to the Jerusalem Post:

The reason the court gave for the law being balanced is that it allows for “reversible stunning.”

The court said the law limits one specific aspect of the ritual act of slaughter, not the act of slaughter itself; as such, it does not count as interference with religious practice.

First Ever Scientology Arbitration Award Upheld By 11th Circuit

In Garcia v. Church of Scientology Flag Service Organization, Inc., (11th Cir., Nov. 2, 2021), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, affirmed a district court decision refusing to vacate a arbitration award made under arbitration agreements between the Church of Scientology and two of its former members. After Luis and Maria Garcia were expelled from the Church as "suppressive members", they unsuccessfully sought refunds of their donations and payments. They then sued in federal court seeking $400,000 in damages. The district court compelled arbitration, and the arbitrators awarded the Garcia's only $18,495 in refunds in the first arbitration in the history of the Church of Scientology. The Garcia's unsuccessfully challenged the validity of the arbitration agreement and the conduct of the arbitrators.

On appeal to the 11th Circuit, the majority rejected the argument that the arbitration agreements were procedurally unconscionable because they did not adequately disclose the procedures that would govern the arbitration. The agreements provided that the arbitration would be “conducted in accordance with Scientology principles” by arbitrators who were “Scientologists in good standing with the Mother Church.” They also rejected the claim of substantive unconscionability.  The Garcia's argued that Scientology doctrine prevented a fair hearing for suppressive members.  The Church disagreed.  The court concluded that the 1st Amendment prevents civil courts from resolving disputes about church doctrine.

Judge Rosenbaum dissented, contending in part:

[T]he arbitration agreement is not a valid agreement to arbitrate. Rather, in requiring the Garcias to agree to be governed at arbitration by rules that did not exist and would be devised by the Church and evolve while the arbitration proceeded, the arbitration agreement was as one-sided and unconscionable as an arbitration agreement can be.

News Service of Florida reports on the decision.

4th Circuit: Denial Of Church's Application For Water and Sewer Plan Amendment Violated RLUIPA

In Redeemed Christian Church of God (Victory Temple) Bowie, Maryland v. Prince George's County, Maryland, (4th Cir., Nov. 3, 2021), the U.S. 4th Circuit Court of Appeals held that the legislative amendment to the County’s Water and Sewer Plan which Victory Temple sought to recategorize its property constitutes a "land use regulation" subject to RLUIPA. It also concluded that the denial of Victory Temple's application for a recategorization imposed a substantial burden on its exercise of religion. The court concluded in part:

[T]he County never sought to show at trial that it considered alternatives — such as roadway improvements or additional road signs — before denying the Application. At bottom, we agree with the district court that the County’s denial of the Application fails strict scrutiny review. In these circumstances, the court did not abuse its discretion in granting Victory Temple the injunctive relief that is appealed from.

From 2nd Circuit To Supreme Court, Fight Over NY's Removal Of Vaccine Religious Exemptions Continues

One day after hearing oral arguments in the cases challenging the elimination of religious exemptions from New York's requirement that health care workers be vaccinated against COVID, the U.S. 2nd Circuit Court of Appeals vacated temporary injunctions that had been issued in We the Patriots USA, Inc. v. Hochul  and Dr. A v. Hochul. In its October 29 Order (full text), the 2nd Circuit said that written opinions in the two cases would follow expeditiously. On Nov. 1, petitioners in We the Patriots case filed an Emergency Application (full text) with the U.S. Supreme Court seeking a new injunction while they file a petition for certiorari with the Court. Washington Examiner reports on the filing.

UPDATE: Here is the 2nd Circuit's 50-page opinion supporting its Order rejecting requests for a preliminary injunction. We the Patriots USA, Inc. v. Hochul, (2d Cir., Nov. 4, 2021).

UPDATE2: On Nov. 12, petitioners in the Dr. A case also filed an Emergency Application for an Injunction or in the alternative the granting of certiorari. (Full text of application).

Mississippi City Is Sued Over Refusal To Approve Mosque Site Plan

Suit was filed yesterday in a Mississippi federal district court alleging that the City of Horn Lake denied approval of the site plan for a proposed mosque because of religious animus. The suit alleges violation of various provisions of RLUIPA as well as the 1st Amendment. The complaint (full text) in Abraham House of God and Cemetery, Inc. v. City of Horn Lake, (ND MS, filed 11/3/2021) alleges in part:

Despite the pretextual excuses for their decision, Board members did not work very hard to hide the true reason they denied approval for the project—anti-Muslim prejudice. As then Alderman John E. Jones Jr. told the local newspaper: “I don’t care what they say, their religion says they can lie or do anything to the Jews or gentiles because we’re not Muslims.” In making his motion to reject the mosque’s proposed site plan, Jones ominously warned his fellow Board members, “[I]f you let them build it, they will come. So I think we need to stop it before it gets here.”...

In sum, what should have been an uncomplicated approval of the site plan for the Abraham House of God foundered in a storm of anti-Muslim bias.

ACLU of Mississippi issued a press release announcing the filing of the lawsuit.

Christian Parents Challenge Virginia Ban On Religious Discrimination In Hiring Babysitter

Suit was filed last week in a Virginia state trial court by Christian parents of a developmentally disabled child who sought to employ a regular babysitter who is Christian to help raise their daughter in the Christian tradition. The Virginia Human Rights Act was amended in July 2021 to bars use of religion as a motivating factor in hiring domestic workers, including babysitters, and to bar expressing religious preferences in employment ads. The complaint (full text) in Woodruff v. Herring, (VA Cir. Ct., filed 10/28/2021) contends that application of this law to plaintiffs burdens their free exercise of religion in violation of the Virginia Religious Freedom Restoration Act. Foundation for Parental Rights issued a press release announcing the filing of the lawsuit. [Thanks to Scott Mange for the lead.]

Texas Voters Approve Measure To Ban Limits On Religious Services

In reaction to limits imposed on religious gatherings during the COVID pandemic, Texas voters yesterday approved Proposition 3, a state constitutional amendment which provides:

This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.

The vote was 62.42% in favor, 37.58% opposed. More details at Ballotpedia.

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.