President Biden Issues Hanukkah Message

President Biden issued a statement (full text) today wishing everyone a Happy Hanukah, and saying in part:

At its core, Hanukkah recounts a story at the heart of the human spirit – one that is inherently Jewish and undeniably American. It commemorates how even the most fragile flame can sustain a tradition and nourish the soul of a people. It teaches us that even a little bit of light, wherever it is found, can dispel the darkness and illuminate a path forward. And it reminds us that whether it is the Holy Temple in Jerusalem or the temple of our democracy, nothing broken or profaned is beyond repair.

Vaccine Mandate For Chicago City Employees Upheld

In Troogstad v. City of Chicago, (ND IL, Nov. 24, 2021), an Illinois federal district court refused to grant a temporary restraining order to city employees who were challenging the state and city mandatory COVID vaccination policy.  Among plaintiffs' various challenges was a free exercise claim, to which the court said in part:

To be clear, if a particular employee is denied a religious exemption, she may challenge that denial, based on the particular facts of her case, as a violation of her free exercise rights. But no Plaintiffs have been denied a religious exemption on grounds other than failing to adequately articulate their individual circumstances, as the City Vaccination Policy requires....

The court also rejected plaintiffs' claims that the vaccination mandate violates the Illinois Healthcare Right of Conscience Act, saying in part:

Plaintiffs might well be correct, if the City Vaccination Policy did not contain any avenue for religious exemptions.

But the City Vaccination Policy does provide a detailed religious exemption process that protects anyone who holds sincere religious objections to being vaccinated.

Court Upholds Testing Requirement For Employees Granted Religious Exemption From Vaccination

In Federoff v. Geisinger Clinic, (MD PA, No. 23, 2021), a Pennsylvania federal district court refused to issue a preliminary injunction in a suit by 100 clinic employees who had been granted religious exemptions from the COVID vaccine mandate so long as they submit to tests twice per week. The employees sue seeking to eliminate the testing requirement or, alternatively, to require vaccinated employees as well to submit to testing. The court, in rejecting plaintiffs' constitutional and statutory claims, said in part:

First, they assert constitutional claims against a private entity without so much as a paragraph describing how Geisinger could be considered a state actor....

Second, while the Geisinger Employees are in the right area code in alleging that Geisinger violated their rights under federal and state antidiscrimination law ... their allegations fail to touch on these statutes’ most basic requirements. To make out a prima facie case of religious discrimination, the Geisinger Employees must tell the Court what their religious belief is. They have not done so....

[Also] the antidiscrimination statutes require that employees first file their complaint with either the Pennsylvania Human Relations Commission or the Equal Employment Opportunity Commission. The Geisinger Employees have not done so..... 

[T]he Employees also fail to show that they would suffer irreparable harm...

Biden Issues Thanksgiving Day 2021 Proclamation

President Biden this week issued a Proclamation (full text) declaring today "a National Day of Thanksgiving" and saying in part:

Thanksgiving provides us with a time to reflect on our many blessings — from God, this Nation, and each other.  We are grateful for these blessings, even — and especially — during times of challenge.

...  Just as 400 years ago when the Pilgrims were able to celebrate a successful first harvest thanks to the generosity and support of the Wampanoag, today we too express our gratitude for those who have helped us get through this difficult past year.

9th Circuit: BIA Should Consider Evangelical Christians Separately From All Christians In Assessing Deportation Risk

In Nababan v. Garland, (9th Cir., Nov. 23, 2021), the U.S. 9th Circuit Court of Appeals remanded to the Board of Immigration Appeals (BIA) a petition by two Indonesians who are members of the Seventh Day Adventist Church who are seeking asylum, withholding of removal, and relief under the Convention Against Torture.  In order for the BIA to reopen petitioners' case, they would need to show changed conditions in Indonesia since the earlier denial of their petitions. In a 2-1 decision, the appeals court held that the BIA had committed legal error in finding no material change of conditions. The majority said in part:

[The BIA] failed, ... to account for Petitioners’ status as evangelical Christians or the evidence they presented indicating that evangelical Christians have experienced a particular increase in violence and persecution, beyond that experienced by Indonesian Christians in general.

Judge VanDyke dissented, saying in part:

The majority’s emphasis on the term “evangelical Christian” is not just absurdly fussy, it’s also inherently fuzzy. The majority latches onto the term, but never defines what it means. Does the majority mean that “evangelical Christians” are a subgroup of Christianity, akin to the commonly used distinction between, say, Catholics and Protestants? Or does the majority simply mean that “evangelical Christians” refers to any “Christians” who evangelize? If the latter, this broad categorization encompasses the vast majority, if not all, Christians....

Greyhound Settles EEOC Religious Accommodation Lawsuit

The EEOC announced this week that Greyhound Lines has agreed to settle a religious discrimination lawsuit brought against it on behalf of a Muslim woman who, after being accepted into the bus line's driver training program, was told she could not wear an abaya. The abaya is a loose fitting outer garment worn because of religious beliefs regarding modesty. Greyhound will pay $45,000 in damages, and will train its human resource and hiring personnel on handling of religious accommodations.

European Court Says Russia Violated Rights of Krishna Movement, Vaishnavism and Unification Church

As reported by Courthouse News Service, yesterday in Chamber Judgments, Russia lost two separate freedom of religion cases in the European Court of Human Rights.

In Centre of Societies for Krishna Consciousness In Russia and Frolov v. Russia, (ECHR, Nov. 23, 2021), the court held that a hostile description of the Krishna movement in government brochure titled “Watch out for cults!” violated petitioner's rights:

The Court considers that, even where the measures taken by the Government did not actually restrict the applicants’ freedom to manifest their beliefs through worship and practice, the hostile terms which the State authorities used to describe their movement may have had negative consequences for them and constitute an interference with their rights under Article 9 § 1 of the Convention.

The court also held that the rights of freedom of religion and assembly were violated when the District government refused permission for a meeting to promote the teaching of Vaishnavism.

In Corley and Others v. Russia, (ECHR, Nov. 23, 2021), the court held that the enforced departures of two religious workers were designed to prevent the spread of the Unification Church's teachings in Russia, in violation of various provisions of the European Convention on Human Rights.

Appeals Court Reverses Dismissal Of Fired Catholic Teacher's Suit

In Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Ct. App., Nov. 23, 2021), an Indiana state appellate court reversed a trial court's dismissal of a suit by a former teacher in a Catholic high school who claimed that the Archdiocese intentionally interfered with his contractual and employment relationships with the school. After plaintiff married his same-sex partner, the Archbishop insisted that the school terminate his teaching contract or else it could no longer designate itself as "Catholic." In rejecting dismissal of the suit, the appeals court said in part:

Here, the parties have yet to undertake the requisite “fact-sensitive and claim specific” analysis that must precede analysis of whether the First Amendment bars Payne-Elliott’s claims against the Archdiocese. For instance, do genuine issues of material fact exist regarding: (1) whether Payne-Elliott’s job duties as a teacher at an Archdiocese-affiliated school rendered him a “minister”; or (2) the applicability of the ecclesiastical abstention doctrine?  At this juncture, discovery in this matter is ongoing, and we find that this matter is well shy of being ripe for summary disposition....

Moreover, at this very early juncture, this Court cannot say that “it appears to a certainty on the face of the complaint” that Payne-Elliott is not entitled to any relief.... Nor can we say that the allegations present no possible set of facts upon which the complainant can recover.

WISH-TV News reports on the decision.

Free Exercise Challenge To Mandate For Masks On Public Transit Is Rejected

In Mahwikizi v. Centers for Disease Control & Prevention, (ND IL, Nov. 22, 2021), an Illinois federal district court refused to issue a preliminary injunction against enforcement of the federal COVID-19 requirement that people wear masks on public transit. Plaintiff who is a Catholic rideshare driver contended that "the mandate requires him to leave maskless passengers on the side of the road in violation of Christian teachings about the Good Samaritan." The court rejected plaintiff's free speech argument, saying in part:

Giving rides to maskless passengers isn’t speech; it is conduct. And conduct does not suddenly become speech simply because the person engaging in it intends to express an idea.

It rejected plaintiff's free exercise argument because it found that the mandate is a neutral law of general applicability that is subject only to rational basis review. In response to plaintiff's hybrid rights claim, the court said in part:

But “a plaintiff does not allege a hybrid rights claim entitled to strict scrutiny analysis merely by combining a free exercise claim with an utterly meritless claim of the violation of another alleged fundamental right.”

11th Circuit Rejects Nuclear Protesters' RFRA Defense

In United States v. Grady, (11th Cir., Nov. 22, 2021), the U.S. 11th Circuit Court of Appeals upheld the convictions of three members of the Plowshares movement, a Catholic protest organization opposed to nuclear weapons. Defendants were convicted for their illegal entry onto a Naval submarine base that was followed by a religious "symbolic disarmament" protest. The court rejected defendants' argument that their indictments should have been dismissed under the Religious Freedom Restoration Act, saying in part:

In this case, the parties agree that the defendants were exercising sincerely held religious beliefs, the government substantially burdened the defendants’ religious exercise, and the government has a compelling interest. Accordingly, the fourth prong in the RFRA analysis is the only prong in dispute in this appeal—whether the government met its burden of demonstrating that criminal prosecution of the defendants was the least-restrictive means of furthering its significant compelling interests in the safety and security of the naval base, naval base personnel, and naval base assets....

[I]n order to be a viable least-restrictive means for purposes of RFRA, the proposed alternative needed to accommodate both the religious exercise practiced in this case— unauthorized entry onto the naval base and destructive actions, including spray painting monuments, doors, and sidewalks, pouring human blood on doors and other areas, hammering on a static missile display, hanging banners and crime scene tape, as well as removing and partially destroying signage and monuments around the naval base—and simultaneously achieve the government’s compelling interests in the safety and security of the naval base, naval base assets, personnel, and critical operations....

[N]othing in RFRA supports destructive, national-security-compromising conduct as a means of religious exercise. 

Court Defers Ruling On Military's Actions On Religious Exemption Requests From Vaccine Mandate

In Seal I v. Biden, (MD FL, Nov. 22, 2021), a Florida federal district court, after a lengthy discussion of free exercise protection under the 1st Amendment and RFRA, deferred until at least Jan. 7, 2022, ruling on a motion for a preliminary injunction sought by service members seeking religious exemptions from the federal government's COVID vaccine mandate for members of the military. According to the court:

[P]laintiffs claim the regulations — governing in each respective branch the availability of a religious exemption from the COVID vaccine and purporting to comply with the demands of RFRA — in reality disguise an unlawful and pervasive policy of the Secretary of Defense and each branch of the armed forces to deny individual consideration of each claim for a religious exemption, to instead “deny them all,” and to punish, possibly by discharge, without exemption and without accommodation, those who assert a sincere religious objection and accordingly refuse the vaccine....

[T]he data produced by the defendants show that more than 16,643 requests for a religious exemption pend. The military has granted no exemptions but has denied hundreds. This disparity, although susceptible to a benign explanation is, as well, susceptible to an explanation actionable and remediable under RFRA.

The court ordered each branch of the armed forces, beginning Jan. 7, 2022, to file bi-weekly reports on the number of exemption requests and the number granted, as well as on the number of service members court martialed after the denial of a religious exemption. Liberty Counsel issued a press release announcing the decision.

6th Circuit Affirms Dismissal of Minister's Hostile Work Environment Claim

In Middleton v. United Church of Christ Board, (6th Cir., Nov. 22, 2021), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of a Title VII racial discrimination suit brought by a minister claiming an anti-Black hostile work environment. The three-judge panel unanimously agreed that while plaintiff may have been treated badly, it did not rise to the level of a hostile work environment. Two of the judges (Boggs and Larsen, JJ) went on to hold:

[T]he ministerial exception bars any judicial consideration of a church’s tangible employment actions taken against a minister in a discrimination claim, regardless of its underlying basis....  Otherwise, the church would be required to respond that its tangible employment actions were motivated not by discriminatory animus, but by nondiscriminatory reasons.... [T]he court would then be required to conduct a pretext inquiry to determine the church’s true motivation. This would involve an examination of the church’s reasons for determining the fitness and qualifications of its ministers—a determination necessarily informed by religious belief. This is precisely the kind of state inquiry into church employment decisions that the First Amendment forbids.

Judge Moore in a concurring opinion argued that the court need not reach the ministerial exception issue. [Thanks to Heather Kimmel for the lead.] 

 

State Department Designates "Countries of Particular Concern" For Violating Religious Freedom Rights

Last week, in a little noticed move, pursuant to the International Religious Freedom Act the U.S. State Department published this year's designation of countries and non-state actors that are major violators of religious freedom. In a statement, Secretary of State Blinken said:

I am designating Burma, the People’s Republic of China, Eritrea, Iran, the DPRK, Pakistan, Russia, Saudi Arabia, Tajikistan, and Turkmenistan as Countries of Particular Concern for having engaged in or tolerated “systematic, ongoing, and egregious violations of religious freedom.”  I am also placing Algeria, Comoros, Cuba, and Nicaragua on a Special Watch List for governments that have engaged in or tolerated “severe violations of religious freedom.”  Finally, I am designating al-Shabab, Boko Haram, Hayat Tahrir al-Sham, the Houthis, ISIS, ISIS-Greater Sahara, ISIS-West Africa, Jamaat Nasr al-Islam wal-Muslimin, and the Taliban as Entities of Particular Concern.

Many of the designations are the same as last year, except that Russia was moved from the Special Watch List to become a Country of Particular Concern (CPC) and Nigeria was placed on the Special Watch List instead of being designated a CPC. Also the State Department noted "The Taliban’s designation is based on information analyzed as of August 15, 2021." As is often the case, the State Department's designations vary to some extent from the recommendations of the U.S. Commission on International Religious Freedom.

RFRA Defense Precluded In Prosecution of Tribal Member For Violating Closure Order

In United States v. Ortega, (D AZ, Nov. 18, 2021), an Arizona federal district court, ruling on the government's motion in limine to preclude a defense under the Religious Freedom Restoration Act in the prosecution of a member of the Tohono O’odham Nation for violating a closure order at the Organ Pipe Cactus National Monument, said in part:

There was no evidence presented that proved that the government interfered with Ms. Ortega’s prayers or ceremony at Quitobaquito Springs on 9/9/20, other than the distant sound of the heavy machinery. Ms. Ortega left the springs where she was praying and entered the closed construction area. The park rangers advised Ms. Ortega that the area under construction was closed to the public and she was instructed to leave, or she would be arrested.

Ms. Ortega was disturbed by the destruction and desecration of the land near the springs. She was spiritually wounded by the knowledge that the border wall was going to interrupt access of tribal members to their ancestral lands and that important medicinal plants would be destroyed. Construction of the border wall raised painful memories of the harms suffered by native people at the hands of the government throughout history. Ms. Ortega’s testimony was emotional and heartfelt. There is no question that her suffering is genuine and is rooted in her sincerely held religious beliefs. However, the defense was unable to prove that on 9/9/20 the closure order and the ranger’s lawful order that Ms. Ortega leave the construction zone imposed a substantial burden on her ability to engage in her religious activities.

School's Vaccine Mandate Without Religious Exemptions Upheld

In Doe v. San Diego Unified School District, (SD CA, Nov. 18, 2021), a California federal district court denied a temporary restraining order in a suit by a high school student and her parents objecting to the school district's COVID vaccine mandate which did not provide for religious exemptions. The court held that the scope of the injunction sought by plaintiff created standing issues, but regardless of that:

In light of the overwhelming weight of authority upholding vaccination requirements in response to free exercise challenges, the Court finds that Plaintiffs are not likely to succeed on the merits of their claim.

Thomas More Society has more background on the case.

Magistrate Recommends Dismissing Religious Objections To School's Teaching Transgender Understanding

In Jones v. Boulder Valley School District RE-2, (D CO, Oct. 4, 2021), a Colorado federal magistrate judge recommended dismissing a suit by parents of three elementary school students who contended that their free exercise and equal protection rights, as well as their parental rights to control the upbringing of their children, were violated when the school instituted a program to teach tolerance and understanding of transgender individuals that conflicted with the parents religious beliefs.

Plaintiffs ... emphasize that all they want is proper advance notice and the ability to opt-out of transgender programming as provided for by Colorado law....  The problem is that the federal constitution does not mandate advance notice or the ability to opt out of particular classes or programs, and especially not from particular classroom discussions. The federal constitution protects religious children and families by ensuring that a state cannot punish them if they choose to educate their children outside the public system, whether at home or at areligious school. But the federal constitution gives parents no First Amendment or due process right to direct to what is taught in the schools based on their own personal religious beliefs, nor does the federal constitution mandate the right to a religious "opt-out" option from particular classes or specific programming. From the federal constitutional perspective ..., it is up to the local school district to decide what is taught and at what age....

A Notice of Settlement was filed with the court on Nov. 15, and the case was terminated.

Recent Articles of Interest

From SSRN:

• Frederick Mark Gedicks, Custom, Preference, or Nature? Mormon Polygamy, Same-Sex Marriage, and Natural Law Theory, (In Queer and Religious Alliances: Friendship in Family Law and Beyond (Anthem Press, forthcoming 2022)).
• Brady Earley, Contagions, Congregations, and Constitutional Law: Comparing Religious Freedom in the 1918 and 2020 Pandemics, (August 20, 2021).
• Brady Earley, Sacred Ground: Unearthing Religious Freedom of African American Slaves, (September 9, 2021).
• Brady Earley, Religious Freedom 'with Chinese Characteristics', (August 20, 2021).
• Kyler Palmer, Bostock, Backlash, and Beyond the Pale: Religious Retrenchment and the Future of LGBTQ Antidiscrimination Advocacy in the Wake of Title VII Protection, (DePaul Journal for Social Justice, Forthcoming Winter 2021).
• Perry Dane, Robert Cover and Legal Pluralism - Redux, (October 17, 2021).
• Caroline Mala Corbin, The Pledge of Allegiance Revisited: Speech Rights vs Parental Rights, (Indiana Law Journal, Forthcoming).

From SSRN (Abortion Rights):

• Adam Lamparello, Charles MacLean & Brian Owsley, Amicus Brief of Professors Lamparello, MacLean, and Owsley in favor of Petitioners in Whole Woman's Health v. Jackson, US Supreme Court No. 21-463, (October 26, 2021).
• Gary J. Simson & Rosalind Simson, Rescuing Roe, (N.Y.U. Journal of Legislation and Public Policy, volume 24, issue 2, Forthcoming Winter 2022).
• I. Glenn Cohen, Eli Y. Adashi & Lawrence O. Gostin, The Supreme Court, the Texas Abortion Law (SB8), and the Beginning of the End of Roe v Wade?, (The Journal of the American Medical Association Health Forum, published online September 23, 2021, at E1-E2).

From SSRN (Non-U.S. Law):

• Abdulmumini Adebayo Oba & Ismael Ismael, Revisiting the Causes of Delay in the Adjudication of Islamic Personal Law Cases in Nigerian Jurisprudence, (Nnamdi Azikiwe University Journal of International Law and Jurisprudence Vol. 11 No. 1, 2020, pp. 1-14).
• Melanie Levy, Surrogacy and Parenthood: a European Saga of Genetic Essentialism and Gender Discrimination, (Michigan Journal of Gender & Law, Forthcoming).
• Assaf Likhovski & Aviram Shahal, The History of Israeli Pre-State Constitutionalism, (The Oxford Handbook of the Israeli Constitution, Aharon Barak, Barak Medina and Yaniv Roznai (eds.) (Forthcoming)).
• Ismael Ismael & Abdulmumini Adebayo Oba, Judicial Practice in Distribution of Inheritance (Mīrāth) in Islamic Courts in Nigeria,  (De Jure: Jurnal Hukum dan Syari’ah Vol. 11 No. 1, 2019, pp. 1-22).

From elsewhere:

• Columbia Law School, Law, Rights and Religion Project, The Southern Hospitals Report: Faith, Culture, and Abortion Bans in the U.S. South, Nov. 2021).
• U.S. Holocaust Memorial Museum, “To Make Us Slowly Disappear” The Chinese Government’s Assault on the Uyghurs, (Nov. 2021).

Humanist Association Releases 2021 Freedom of Though Report

Last week, the American Humanist Association and Humanists International announced the release of the 2021 Freedom of Thought Report. The press release reads in part:

The 2021 Freedom of Thought report details the risks faced by nonreligious individuals around the world. The focus is on state-imposed discrimination, defined as systemic, legal, or official forms of restrictions on freedom of thought, belief, and expression. 

The report sharply criticizes Saudi Arabia, Iran, Pakistan, and Afghanistan, as well as other countries, for grave violations against the rights of nonreligious people, including the enforcement of blasphemy laws, religious or ideological indoctrination in schools, and more. The 2021 report includes consideration of recent developments in Myanmar and Uruguay as well.

141 Amicus Briefs Filed In Mississippi Abortion Law Case

Oral arguments in Dobbs v. Jackson Women’s Health Organization, the much-watched Mississippi abortion case, will be heard by the Supreme Court on December 1. A near-record number of amicus (friend-of-the-court) briefs have been filed in the case-- 141 in total on the merits. Links to nearly all of the briefs are available on the SCOTUS blog case page for the case. A 2020 National Law Journal article says that the record for number of amicus briefs in one Supreme Court case is 156.

European Court Dismisses Challenges To Irish Constitution's Religious Oaths

In Shortall v. Ireland, (ECHR, Nov. 18, 2021), the European Court of Human Rights dismissed as inadmissible a suit filed by several politicians in Ireland complaining that the Irish Constitution requires the President and members of the Council of State to take oaths containing religious language, without a secular alternative.  The court concluded that none of the litigants were directly affected by the challenged provisions:

[N]one of the applicants have so far been invited to serve on the Council of State, and none claimed that such an appointment was under consideration....

[T]he applicants have not provided any evidence – or even sought to argue – that they could secure the nomination required to stand for election as President.... [T]he applicants ... are seeking to have their victim status accepted, not in the context of a clear, immediate and compelling factual matrix which would allow them to adduce reasonable and convincing evidence that they are at a real risk of being adversely affected by the impugned measure, but rather as a hypothetical outcome, without addressing the very many challenges they would potentially have to overcome to secure that office.

The Court also issued a press release summarizing the decision.