Supreme Court Will Hear Arguments Tomorrow In Maine School Tuition Case

Tomorrow, the U.S. Supreme Court will hear oral arguments in Carson v. Makin. In the case, the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that call for paying tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Schools that provide religious instruction do not qualify. (See prior posting.) 

The SCOTUSblog case page has links to the briefs and other filings in the case. The oral arguments will be streamed live at this link when the Court convenes at 10:00 AM Eastern Time on Wednesday.

Jewish Airline Passenger Sues After He Was Forced Off Plane For Refusing To Place Tallit Bag On Floor

The New York Post reports on a lawsuit filed by an elderly Jewish couple who were forced off their American Airlines flight from Miami to New York after an argument with a flight attendant who insisted that Roberto Birman's tallit (prayer shawl) bag be removed from the overhead compartment and placed on the floor beneath his seat. Birman objected saying that his religious beliefs precluded him from placing the tallit on the floor. The Post reports:

As soon as they were ushered out, the crew member allegedly told his coworkers, “Close the gate!”...

They were left without Roberto’s diabetes medications, which were in the checked luggage, got no help from the airline for securing food or a place to stay that night, and were forced to take a taxi to a friend’s home as a hurricane swept in.

Insurance Brokerage Firm Settles EEOC Religious Discrimination Suit

EEOC announced yesterday that Arthur J. Gallagher & Co., an insurance brokerage firm, has agreed to settle a religious discrimination lawsuit by paying $40,000 in damages to an underwriting associate it fired, explaining:

According to the EEOC’s lawsuit, filed last year, Gallagher knew of Yu Rex Noda’s Christian religious practices, including fasting in conjunction with Lent. As set out in the EEOC’s complaint, a “Termination Memo” Gallagher issued cited “fasting” and “meditating” among reasons for firing Noda.

The company will also provide anti-discrimination training to Midwest regional managers.

9th Circuit Lifts Injunction Against School District's Vaccine Mandate

On Nov. 28, the U.S. 9th Circuit Court of Appeals enjoined, pending appeal, the San Diego school district's COVID vaccine mandate because it denied religious exemptions while allowing a deferral option for pregnant students. (See prior posting.) Subsequently the school district removed the deferral option for pregnant students. So in John Doe v. San Diego Unified School District, (9th Cir., Dec. 4, 2021), the court, in a 2-1 decision, held:

Given the removal of the “per se” deferral option for pregnant students, the injunction issued in the November 28, 2021 order has terminated under its own terms.

The majority rejected the claim that medical exemptions, temporary exemptions for students who are homeless, in migrant status or foster care, or in military families, and special provisions for students with Individualized Education Programs, but the absence of religious exemptions, undermine the general applicability of the vaccine mandate.

Judge Ikuta dissented, arguing that these secular exemptions mean that the mandate is not generally applicable and thus must be evaluated under the strict scrutiny standard, saying in part:

These religious and secular activities pose identical risks to the government’s asserted interest in ensuring the “safest environment possible for all students and employees,” because both result in the presence of unvaccinated students in the classroom, who could spread COVID-19 to other students and employees.

Plaintiff's attorney has said that emergency relief will be sought from the U.S. Supreme Court.

UPDATE: Here is plaintiffs' Petition for emergency relief from the Supreme Court, asking for an injunction or stay pending appeal.

Seventh Day Adventist Can Sue Over Forced Sedation

In Snyder v. Robinson, (D ID, Dec. 1, 2021), an Idaho federal district court in its initial screening of an in forma pauperis lawsuit concluded that plaintiff, a Seventh Day Adventist, can move ahead with his allegations that a nurse injected him with drugs to sedate him, in violation of his known religious beliefs. The court also permitted him to proceed with his 4th Amendment and his 14th Amendment right to privacy and bodily integrity claims.

Recent Articles of Interest

From SSRN:

• Nelson Tebbe, The Principle and Politics of Liberty of Conscience,  Harvard Law Review, Vol. 135, p. 267, 2021.
• Robert Forster & Christine Bell, Divine Intervention: Invoking God in Peace Agreements, (in J. Mitchell, S. R. Millar, F. Po and P. Martyn (eds.) The Wiley Blackwell Companion to Religion and Peace, Hoboken: John Wiley and Sons, Forthcoming 2022).
• Divyanshu Dembi, Hate Speech under Article 19(1)(a): Conceptualising the Case for Constitutional Protection of Hate Speech under Indian Law, (June 25, 2021).
• Nelson Robert Lund, Textualism and Bostock, (George Mason Legal Studies Research Paper No. LS 21-12, 2021).
• Roger Colinvaux, Speeding Up Benefits to Charity: Donor Advised Fund and Foundation Reform, (Boston College Law Review, Forthcoming).

From SmartCILP:

• Amy J. Sepinwall, Free Speech and Off-Label Rights, 54 Georgia Law Review 463-522 (2020).

Synagogue Can Move Ahead With Damage Claim for Zoning Denial

In Khal Anshei Tallymawr, Inc. v. Township of Toms River, New Jersey, (D NJ, Dec. 3, 2021), a New Jersey federal district court allowed an Orthodox Jewish congregation to move ahead with its free exercise, RLUIPA, equal protection and state law claims for damages growing out of the zoning denial of a permit to construct a synagogue in an area zoned rural residential. However, since subsequently the challenged regulations have been amended to permit houses of worship as conditional uses in residential zones, the court denied prospective relief while plaintiff determines whether the zoning board will now permit the construction. The zoning amendments were enacted pursuant to the settlement of a RLUIPA lawsuit brought by the Department of Justice. (See prior posting.)

Younger Abstention Applied While Santeria Priestess Is Tried Criminally

In Santeria Sanctuary v. Madison County, Tennessee, (WD TN, Dec. 2, 2021), a Tennessee federal district court applied the Younger abstention doctrine and stayed a federal civil suit while state criminal court proceedings are under way against a Santeria priestess who is under indictment on 676 counts of cruelty to animals. According to the court, plaintiffs claims under RLUIPA and the Tennessee Religious Freedom Restoration Act:

center on Defendants destruction of the Sanctuary and their forced entry into the house of worship during a religious ceremony, along with their seizure of tithes and offerings in violation of the Plaintiffs’ First Amendment right to free exercise of religion.... In addition, Plaintiffs contend the County officers raid on the property, as well as an unlawful search and seizure of money and animals, violates Plaintiffs’ Fourth Amendment rights.... Plaintiffs further maintain that such actions by Defendants imposed substantial burdens on the Plaintiffs by forcing them and the adherents of the Sanctuary to forego the practice of their religious precepts—namely, the sacrifice of live animals....

Cert. Filed In Suit By Parolee Against Christian Homeless Shelter Director

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Carmack v. Janny, (cert. filed 12/3/2021). In the case, the U.S. 10th Circuit Court of Appeals held that a parolee, who is an atheist, should be able to move ahead with his Free Exercise and Establishment Clause claims against his parole officer and the director of a Christian homeless shelter. To stay out of jail, plaintiff was required to stay at the shelter and participate in its religious programming. (See prior posting.) The petition for review frames the question presented as:

Whether the employee of a private, religious nonprofit may be held liable, as a state actor, for making pro bono housing and social services at the nonprofit’s facility contingent on participation in religious programming.

ADF issued a press release discussing the case.

Ministry Designated As "Hate Group" Asks Supreme Court To Reconsider "Actual Malice" Test For Defamation

A petition for certiorari (full text) has been filed with the U.S. Supreme court in Coral Ridge Media Ministries, Inc. v. Southern Poverty Law Center, (cert. filed 11/24/2021). In the case, the U.S. 11th Circuit Court of Appeals affirmed an Alabama federal district court's dismissal of a defamation and religious discrimination suit brought by a Christian ministry and media company. (See prior posting.)  Coral Ridge is designated as a "hate group" by the Southern Poverty Law Center because of Coral Ridge's religious beliefs opposing LGBTQ conduct. The court dismissed the defamation claim because plaintiff failed to adequately plead actual malice (i.e., knowledge of falsity or reckless disregard of the truth). The certiorari petition asks the Supreme Court to reconsider the actual malice standard set out in New York Times v. Sullivan. Los Angeles Blade reports on the filing of the cert. petition.

Oklahoma AG Sues To Invalidate Biden's Vaccine Mandate For Federal Employees

Oklahoma's Attorney General and its Governor, along with 16 Oklahoma Air National Guard members, have sued to invalidate President Biden's Executive Order requiring COVID-19 vaccination for all federal employees. The complaint (full text) in State of Oklahoma v. Biden, (WD OK, filed 12/2/2021), contends that the mandate violates various provisions of the Constitution and federal law, including the Free Exercise Clause:

The vaccine mandate is undermining the sincerely held religious beliefs of Oklahoma residents and at least some individual Plaintiffs. This mandate is not a law of  general applicability because it contains exemptions that almost certainly will be unavailable to some individual Plaintiffs. Specifically, although EO 14043 does not even discuss religious exemptions, the SFWTF says only that a religious exemption might apply.... It adds: “Determining whether an exception is legally required will include consideration of factors such as the basis for the claim; the nature of the employee’s job responsibilities; and the reasonably foreseeable effects on the agency’s operations, including protecting other agency employees and the public from COVID-19.” Id. This non-committal and uncertain language gives Plaintiffs no assurance whatsoever.

The Oklahoma Attorney General issued a press release announcing the filing of the lawsuit.

Religious Child Placement Agency Challenges HHS Non-Discrimination Regulations

Suit was filed yesterday against the U.S. Department of Health and Human Services in a Tennessee federal district court by a religious child welfare agency that offers residential and foster care services for abused and neglected children. The suit challenges an HHS regulation that prohibits foster care and adoption programs receiving federal funds from discriminating on the basis of religion, sex, sexual orientation, gender identity or same-sex marriage status. The regulation expands upon the statutory prohibition on discrimination in such programs on the basis of race, color or national origin. The complaint (full text) in Holston United Methodist Home for Children v. Becerra,(ED TN. filed 12/2/2021), alleges that the regulation exceeds the federal agency's authority and that it violates RFRA and various 1st Amendment rights. The complaint alleges in part:

28. It would substantially burden Holston Home’s exercise of its religious beliefs to knowingly engage in child placing activities in connection with persons that do not agree with its Christian statement of faith and beliefs....

30. It would substantially burden Holston Home’s exercise of its religious beliefs to knowingly engage in child placing activities in connection with couples who may be romantically cohabitating but not married, or who are couples of the same biological sex.

The Trump Administration had issued waivers of the rule for faith-based agencies, but those waivers were rescinded by the Biden Administration last month. (See prior posting). ADF issued a press release announcing the filing of the lawsuit.

White House Hosts Hanukkah Celebration

CNN Reports on yesterday's Hanukkah celebration at the White House, saying in part:

The first and second families held a menorah lighting ceremony to celebrate Hanukkah at the White House on Wednesday evening, marking the first time the holiday has been celebrated at 1600 Pennsylvania Avenue with the Jewish spouse of a president or vice president.

"This is a White House tradition, but for the first time in history it is a family tradition," President Joe Biden said during the event in the East Room. He said the White House was honored to have second gentleman Doug Emhoff, who is Jewish, leading the lighting.

Here is a video of the 30 minute ceremony, via PBS.  The Forward has background on Hanukkah celebrations at the White House.

Suits In Delaware Seek Bans On Future Emergency Orders Affecting Worship Activities

Two similar lawsuits were filed yesterday in a Delaware state trial court seeking to prevent any future pandemic or other emergency declarations from placing limits on gatherings for religious worship.  The complaints in Hines v. Carney, (DE Ch., filed 12/1/2021) (full text) and Landow v. Carney, (DE Ch., filed 12/1/2021) (full text), citing state and federal constitutional protections, seek injunctions to prohibit

(1) any shutdown Order prohibiting Sunday or weekday assembly for religious worship or setting any attendance limit of 10 or more on the number of persons permitted to worship; (2) any shutdown or subsequent Orders preventing or directing how speech, preaching and teaching from the pulpit is to occur; (3) any shutdown or subsequent Orders prohibiting speech through singing in worship of God, individually or as a group; (4) any shutdown or subsequent Orders prohibiting assembly of worshipers based on age or any other personal characteristics such as health, wealth, race, gender, or other physical or emotional characteristic; (5) any Orders prohibiting Baptism or directing how the ritual is to be conducted; (6) any Orders prohibiting the Lord’s Supper or directing how the ritual is to be conducted; and (7) expressing preferences or favoritism for the practices of one religion over another.

WDEL News reports on the lawsuits.

Oral Arguments In Supreme Court On Mississippi Abortion Case

Here are links to the transcript and audio of oral arguments this morning in Dobbs v. Jackson Women’s Health Organization, a challenge to the Mississippi law which bars most abortions after 15 weeks of gestation. CNN reports on the arguments.

Supreme Court Denies Injunction Pending Appeal Of Case On Vaccine Mandate Exemptions

On Monday, the U.S. Supreme Court in Together Employees v. Mass General Brigham Inc. through an Order by Justice Breyer denied an Emergency Application for an injunction pending appeal to the 1st Circuit of a district court decision. At issue is the denial to eight employees of religious or medical exemptions from a health care system's COVID vaccine mandate.  The 1st Circuit in an Opinion handed down Nov. 18 had previously denied an injunction pending appeal. Boston Globe reports on the case.

Supreme Court Will Hear Arguments Wednesday In Term's Major Abortion Case

Tomorrow morning, the U.S. Supreme Court will hear arguments in Dobbs v. Jackson Women’s Health Organization, a challenge to the Mississippi law which bars most abortions after 15 weeks of gestation. In the case, the U.S. 5th Circuit Court of Appeals struck down the statute. (See prior posting.) In granting certiorari, the Supreme Court limited the question on review to: "Whether all pre-viability prohibitions on elective abortions are unconstitutional." Mississippi's brief in the case starkly lay out the major issue, contending: "Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition."

Amy Howe at SCOTUSblog has a preview of the arguments. The SCOTUSblog case page has links to the vast number of amicus briefs and other filings in the case. The oral arguments will be streamed live at this link when the Court convenes at 10:00 AM Eastern Time on Wednesday.

9th Circuit Enjoins School District Vaccine Mandate Pending Appeal

In an Order in John Doe v. San Diego Unified School District, (9th Cir., Nov. 28, 2021), the U.S. 9th Circuit Court of Appeals enjoined, pending appeal, the San Diego school district's COVID vaccine mandate which, while allowing certain medical exemptions, does not provide for religious exemptions for students. Judges Berzon and Bennett said the injunction would be removed if the school district removed its "per se" deferral option for pregnant students.  Judge Ikuta, in a partial dissent, said:

I would keep the injunction in effect until the ... School District ceases to treat any students (not just pregnant students) seeking relief from the vaccination mandate for secular reasons more favorably than students seeking relief for religious reasons, because any unvaccinated student attending in-person classes poses the same risk to the school district’s interest in ensuring a safe school environment

The court said that written opinions explaining the order "will follow shortly." California Globe reports on the decision.

New York City Educators' COVID Mandate Falters On Religious Exemption Procedures

In Kane v. De Blasio, (2d Cir., Nov. 28, 2021), the U.S. 2nd Circuit Court of Appeals held that New York City's COVID vaccine mandate for school teachers and administrators is not facially unconstitutional under the 1st Amendment because it is a neutral law of general applicability. However the court held that the process-- determined by an arbitrator-- for deciding whether a person is entitled to a religious exemption is unconstitutional:

The Accommodation Standards allowed employees to request a religious accommodation by submitting a request that is “documented in writing by a religious official (e.g., clergy).”... Requests “shall be denied where the leader of the religious organization has spoken publicly in favor of the vaccine, where the documentation is readily available (e.g., from an online source), or where the objection is personal, political, or philosophical in nature.”...

Denying an individual a religious accommodation based on someone else’s publicly expressed religious views — even the leader of her faith —runs afoul of the Supreme Court’s teaching that “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds.”

Bloomberg Law reports on the decision.

Recent Articles of Interest

 From SSRN:

• Krikor Ghazarian, A Neophyte's Comparison of Religious and Secular Natural Law Theories (September 25, 2021).
• H. Omer Tontus, Basic Principles of Islamic Perspectives in Organ Donation by a Surgeon's Approach, (October 20, 2020).
• Michael Conklin, Life Hangs in the Balance: Weighing Coronavirus Church Closings Against the Religious Freedom and Restoration Act, (NW U. L. Rev. Online (2020)).
• Raymond Shih Ray Ku, Free Speech & Abortion: The First Amendment Case Against Compelled Motherhood, (43 Cardozo Law Review (2021 Forthcoming)).
• DiMaris Medina-Cortes, Nonprofit Fraud Detection and Prevention Techniques From A Leader’s Perspective: A Q-Methodology Study (February 19, 2021).

From SmartCILP:

• Samuel A. Marcosson, Masterpiece Cakeshop and Tolerance as a Constitutional Mandate: Strategic Compromise in the Enactment of Civil Rights Laws, 15 Duke Journal of Constitutional Law & Public Policy 139-182 (2020).