Arizona Law On Rights Of Unborn Is Unconstitutionally Vague

In Isaacson v. Brnovich, (D AZ, July 11, 2022), an Arizona federal district court issued a preliminary injunction barring the application of Arizona's "Interpretation Policy" to abortion care that is otherwise permissible under Arizona law.  At issue is an Arizona statute that provides:

The laws of this state shall be interpreted and construed to acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of this state....

The court said in part:

The Interpretation Policy is intolerably vague because it is entirely unclear what it means to construe and interpret Arizona law to “acknowledge” the equal rights of the unborn.....

Because of the indeterminate meaning and applicability of the Interpretation Policy, abortion providers do not have fair notice of whether, if they conform their conduct to these laws, they nonetheless may face criminal, civil, or professional liability under other statutes based solely on what licensing, law enforcement, or judicial officials think it means to “acknowledge” the equal rights of the unborn.

Courthouse News Service reports on the decision.

5th Circuit: Policy Change Did Not Moot Prisoner's Suit Seeking Congregate Services For NOGE

In Tucker v. Gaddis, (5th Cir., July 11, 2022), the U.S. 5th Circuit Court of Appeals held that a suit by Texas prison inmates seeking to hold religious gatherings for Nation of Gods and Earths adherents is not moot. The court, in a per curiam opinion, said in part:

The State now says that it has promulgated a new policy to govern congregation requests on behalf of the Nation’s adherents. As a result, the State contends that this suit is now moot.

We disagree. The new policy merely allows Tucker to apply for a congregation. It does not in fact allow the Nation to congregate. To the contrary, any such requests remain subject to “time, space, and safety concerns.” And to date, Texas has never permitted the Nation’s adherents to congregate. Nor is there any indication that Texas will allow them to do so anytime soon. So this case is not moot.

 Judges King and Ho each filed a concurring opinion.

Suit Over Content Of Subway Tuna Sandwiches Moves Forward

In a case that is important to those whose religious beliefs prohibit consumption of meat or pork products, a California federal district court in Amin v. Subway Restaurants, Inc., (ND CA, July 7, 2022), refused to dismiss a suit alleging that Subway's tuna sandwiches contain non-tuna products. As reported by Reuters, the suit, alleging fraud and violations of California's consumer protection statutes, contends that DNA analyses of tuna from Subway indicates it contains other fish species, chicken, pork and cattle. According to the court:

Subway argues that any non-tuna DNA discovered when testing its tuna products must come from the eggs in mayonnaise or from cross-contact with other Subway ingredients.... Although it is possible that Subway’s explanations are the correct ones, it is also possible that these allegations refer to ingredients that a reasonable consumer would not reasonably expect to find in a tuna product.

U.N. Appoints Oxford Prof As Special Rapporteur on Freedom of Religion or Belief

At the end of its 50th annual session on July 8, the United Nations Human Rights Council appointed Nazila Ghanea as Special Rapporteur on Freedom of Religion or Belief (press release). Ghanea is Professor of International Human Rights Law and Director of International Human Rights Programs at Britain's Oxford University (biography). Her research has included a focus on religious minorities in the Middle East, including Bahá'is in Iran. The United Nations press release announcing Ghanea's selection lists her nationality as Islamic Republic of Iran. 

President's Executive Order On Reproductive Health Care

Here is the full text of President Biden's Executive Order on Protecting Access to Reproductive Healthcare Services issued last Friday. It calls on the Secretary of Health and Human Services to submit a report to the President on ways to protect access to reproductive health care. It also calls for the Justice Department, the Federal Trade Commission and the Department of Homeland Security to consider or implement certain additional steps to protect access and protect privacy rights.

Biden's Send Greetings To Those Celebrating Eid al-Adha

Yesterday the Muslim world celebrated Eid al-Adha. Yesterday the White House issued a Statement (full text) from the President sending greetings from himself and Jill Biden to all of those celebrating the festival.  The Statement says in part:

The Eid traditions and Hajj rituals that commemorate the devotion of Abraham and his son to God are an opportunity for Muslims to renew their faith, and a reminder of the common roots of the world’s great Abrahamic religions. And the act of sharing the sacrifice with those less fortunate in service of God mirrors our common commitment to work together to meet the challenges of our world today.

Israeli Trial Court Rules That Government Must Recognize Online Civil Marriage Ceremony

 Times of Israel reports:

A ruling by the Lod District Court has upended the religious status quo in Israel and could augur a marriage revolution in the Jewish state.

In a decision published on Friday, Judge Efrat Fink ruled that the Population and Immigration Authority of the Interior Ministry is obligated to register as married couples who wed through an online civil marriage service carried out under the auspices of the US state of Utah.

The decision means that Israeli couples can now get married in civil ceremonies without leaving the country, granting a de facto victory to advocates in the decades-long struggle for civil marriage in Israel.

Recent Articles and Books of Interest

From SSRN:

• David A. Skeel, The Corporation as Trinity, (Seattle University Law Review, Forthcoming).
• Michael J. Broyde & Shlomo Pill, Human Rights in Judaism, (CSLR Research Paper No. 7.2022-AFF (2022)).
• David S. Cohen, Greer Donley & Rachel Rebouche, Re-Thinking Strategy after Roe, (75 Stanford Law Review Online (Forthcoming 2022)).

Recent Books:

• Mary Ziegler, Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment, (Yale Univ. Press, June 2022).
• Rached Ghannouchi, Public Freedoms in the Islamic State, (Yale Univ. Press, September, 2022).
• Jason C. Bivins, Embattled America: The Rise of Anti-Politics and America's Obsession with Religion, (Oxford Univ. Press, July 2022).
• Samira Idllalène, Rediscovery and Revival in Islamic Environmental Law: Back to the Future of Nature's Trust, (Cambridge Univ. Press, Sept. 2022).

Damage Claim For Denying Lincoln Memorial Religious Demonstration Permit Dismissed

In Ferguson v. Owen, (D DC, July 8, 2022), a D.C. federal district court dismissed, with leave to amend, a suit for damages against the head of the National Park Service Division of Permits Management for refusing plaintiff a permit for a 4-month long demonstration at the Lincoln Memorial.  He was offered a permit to demonstrate at the Korean War Veterans Memorial site. Plaintiff, a street musician, wanted to convey a religious/ political message.  The court rejected plaintiff's RFRA claim, finding that the denial had not imposed a substantial burden on his religious exercise, saying in part:

Must an individual have a central religious belief that requires demonstrating at the Lincoln Memorial in order for the denial of permit applications to demonstrate at the Lincoln Memorial—accompanied by the approval of permit applications to demonstrate at nearby locations—to constitute a substantial burden under RFRA? The answer to this question is yes.

The court also rejected plaintiff's 1st Amendment claim, refusing to extend implied Bivens causes of action to this type of claim.

10th Circuit: School Cannot Expel Student For Antisemitic Snapchat Post

In Cl.G. v. Siegfried, (10th Cir., July 6, 2022), the U.S. 10th Circuit Court of Appeals reversed a district court's dismissal of a high school student's claim that his 1st Amendment rights were violated when he was expelled for an antisemitic Snapchat post. His captioned a picture of his friends in wigs and hats to read "Me and the boys bout [sic] to exterminate the Jews." He removed the post after two hours and posted an apology, saying it was meant to be a joke.  Relying in large part on the U.S. Supreme Court's 2021 decision in Mahanoy Area Sch. Dist. v. B.L., the court said in part:

Because CCHS cannot stand in loco parentis and the Complaint alleges no reasonable forecast of substantial disruption or actual disruption, Plaintiff has properly alleged that Defendants’ discipline of C.G. for his off-campus speech is a First Amendment violation that cannot be dismissed at this stage.

Reuters reports on the decision.

Texas Must Grant Execution Chamber Religious Accommodations

 AP reports that on July 5 the federal district court for the Southern District of Texas in Gonzales v. Collier issued a temporary injunction barring the execution of death row inmate Ramiro Gonzales unless authorities grant all of his requested religious accommodations. According to AP:

Gonzales, 39, has asked that when he is executed, his spiritual adviser be allowed in the death chamber so she can pray aloud, hold his hand and place her other hand on his chest.

“...The specific physical contact I have requested is vitally important to me as I am making my spiritual transition into the paradise of God,” Gonzales said in court documents filed last month.

... [O]fficials have argued allowing the hand holding could be a security risk as the adviser would be too close to the IV lines that deliver the lethal injection and the adviser would be in a location that would block the view of authorities and witnesses.

Two Religious Figures Among Recipients Of Presidential Medal of Freedom

Yesterday at the White House, President Biden awarded the Presidential Medal of Freedom to 17 individuals. (List of all recipients). Among the recipients were: (1)  Sister Simone Campbell, a member of the Sisters of Social Service and former Executive Director of NETWORK, a Catholic social justice organization; and (2) Father Alexander Karloutsos, former Vicar General of the Greek Orthodox Archdiocese of America and counselor to several U.S. Presidents. 

Sister Campbell gained national attention in  2010 as author of the "nun's letter" in support of health care reform legislation, while the U.S. Conference of Catholic Bishops opposed the bill.

Tribal Court Dismisses Trespass Charges Against Members Holding Religious Ceremony To Block Pipeline

An Ojibwe Tribal Court has dismissed civil trespass charges against three members of the Minnesota Chippewa Tribe who took part in an 8-day ceremonial gathering blocking construction of a pipeline by Enbridge Energy Corp.  A press release from the Civil Liberties Defense Center gives more background:

Pipeline construction threatened sacred waters, including the Mississippi headwaters, as well as the concomitant ability to hunt, fish, gather, and engage in religious and cultural practices central to Anishinaabe people, and threatened the safety and wellbeing of Indigenous women, girls, and two-spirits as part of the epidemic of Missing and Murdered Indigenous Women and Relatives.  In the face of these threats, Indigenous Water Protectors and their invited guests lit a ceremonial fire, gathered in prayer, and camped on the matting that stretched over the Mississippi River so that Enbridge’s pipeline could be built through it.  

Fire Light Camp participants were originally charged and prosecuted for trespass by the State of Minnesota in Clearwater County District Court.  The cases of several Indigenous participants were subsequently transferred to White Earth Tribal Court....

In White Earth Band of Ojibwe v. Beaulieu, (White Earth Band Tribal Court, June 27, 2022), the court concluded that the Tribal Code defines trespass as returning to property "without claim of right." Here defendants had the right to hold religious ceremonies (with invited guests) on land ceded to the United States. The Tribal Code recognizes "the rights to travel, use and occupy traditional lands and spiritual places for cultural purposes are part of each tribal members' individually held, historically inherent and inalienable rights that have existed from time immemorial."

Mississippi Trial Court Says State's High Court Would No Langer Find Abortion Right In State Constitution

 In Jackson Women's Health Organization v. Dobbs, (MS Ch., July 5, 2022), an abortion provider on behalf of itself and its patients sought a preliminary injunction to prohibit enforcement of two Mississippi abortion bans-- a 2007 Trigger Ban statute (triggered by the overruling of Roe v. Wade) and a 2019 six-week Fetal Heartbeat ban.  Plaintiffs, relying on Pro-Choice Mississippi v Fordice, a 1998 Mississippi Supreme Court decision, argued that the Mississippi Constitution protects the right to an abortion. The Chancery Court, however, denied a preliminary injunction, concluding that the Mississippi Supreme Court will no longer affirm its holding in Fordice, saying in part:

The Fordice court compared Section 32 of the Mississippi Constitution to the Ninth Amendment of the U.S. Constitution. Neither Constitutional provision made specific reference to any protection for abortion. The Court largely rested its finding of a state protected right to abortion to that federal constitutional right found by the Roe Court to flow from the Ninth Amendment.

Mississippi Free Press reports on the decision. [Thanks to Scott Mange for the lead.]

References To Defendant's Amish Community In Sentencing Was Not Improper

In State of Wisconsin v. Whitaker, (WI Sup. Ct., July 5, 2022), the Wisconsin Supreme Court rejected a defendant's claim that his religious liberty and associational rights were violated when the judge sentencing him made reference to his Amish community. According to the court:

As a teenager, Westley Whitaker preyed on his three younger sisters, repeatedly sexually assaulting them while they all were living in an Amish community in Vernon County. Whitaker's parents and elders in the community became aware of the assaults, but failed to protect the victims by either stopping Whitaker from continuing his sexual abuse or alerting secular authorities. A decade later, Whitaker confessed, was charged with six counts of sexual assault, and pled no contest to one of the charges. The circuit court sentenced Whitaker to two years of initial confinement and two years of extended supervision.....

In sentencing Whitaker, the judge said in part:

I happen to live in the midst of an Amish community. They're my neighbors. And sexual assault of sisters is not something that is accepted. I understand it often happens and that it is dealt with in the community. And that's not sufficient. That's not sufficient when it is not a one-time thing and not when the women, the daughters, the wives in the Amish community are not empowered to come forward.... I'm hoping that this sentence deters, as I said, the community.

In upholding the sentence, the Wisconsin Supreme Court said in part: 

[W]e conclude that the circuit court's challenged statements bore a reasonable nexus to the relevant and proper sentencing factors of general deterrence and protection of the public. Nothing in the transcript suggests the circuit court increased Whitaker's sentence solely because of his religious beliefs or his association with the Amish community.... Therefore, we will not disturb the circuit court's wide sentencing discretion. 

Jewish Couple Lacks Standing To Challenge Tennessee Law Allowing Christian Foster Care Agency To Deny Services

In Rutan-Ram v. Tennessee Department of Children's Services, (TN Chanc., June 27, 2022), a Tennessee state 3-judge panel sitting under a special provision of Tennessee law that applies to constitutional challenges, held 2-1 that a Jewish couple who were denied foster-parent training by a state-funded Christian child placement agency lack standing to challenge a Tennessee law permitting faith-based adoption and foster care agencies to refuse to provide services that violate their religious convictions. The standing decision was based on the fact that the state Department of Children's Services ultimately provided training directly to the couple, rather than the couple obtaining it through a private agency. (See prior related posting.) Americans United issued a press release on the case.

Iowa Asks Its Supreme Court To Follow Dobbs On Standard Of Review For Abortion Regulation

As previously reported, last month the Iowa Supreme Court in Planned Parenthood of Heartland, Inc. v. Reynolds overruled its own 2018 decision and held that neither the due process nor the equal protection clause of Iowa's constitution grants a fundamental right to an abortion. It thus rejected subjecting abortion regulation to strict scrutiny under the state Constitution, but did not decide what level of scrutiny should apply. Now that the U.S. Supreme Court in Dobbs has held that the standard of review under the federal constitution for abortion regulation is rational-basis review, the state has filed with the Iowa Supreme Court a petition for rehearing (full text) in Planned Parenthood of Heartland asking the Court to now hold that rational-basis review is also the correct standard under the Iowa Constitution for review of abortion regulations. ADF issued a press release announcing the filing.

Break-Away Faction In Church of God Not Entitled To Property Ownership

In Blue v. Church of God Sanctified, Inc., (TN App., June 27, 2022), a Tennessee state appellate court held that in a property dispute between a break-away faction of a local Church of God and the National Body (as well as a faction loyal to the National Body, labeled the Mother Church), the National Body and its local adherents own church property.  The court said in part:

 We agree with the trial court’s determination that as a matter of ecclesiastical government, the procedure for separation of an affiliated member church from a hierarchical church organization is an issue over which civil courts do not have subject matter jurisdiction.... The trial court did not err in declining to exercise subject matter jurisdiction over Local Church’s initial request for a judgment declaring it to be a separate entity from the National Body....

The court went on to apply the "hybrid neutral principles" approach to affirm the trial court's conclusion that the local church property belongs to the National Body. It described the "hybrid neutral principles" approach:

 “[u]nder this approach, courts defer to and enforce trust language contained in the constitutions and governing documents of hierarchical religious organizations, even if this language of trust is not included in a civil legal document and does not satisfy the formalities that the civil law normally requires to create a trust.”

The court concluded:

 Although no ecclesiastical judgment is in the record, we conclude that the evidence presented at the summary judgment stage demonstrates that the National Body considered Mother Church to be the congregation entitled to possession and use of the Property.... Moreover, as the trial court found, Local Church had already sought disaffiliation from the National Body and had “appointed [its] own pastor, deacons, and trustees outside of the requirements of the [Manual].” We therefore defer to the National Body’s determination, acting through Bishop Hill, that Mother Church is the congregation entitled to possession and use of the Property and its associated personalty.

Lesson On Ancient Mesopotamia Did Not Violate Establishment Clause

In Ervins v. Sun Prairie Area School District, (WD WI, July 1, 2022), a Wisconsin federal district court rejected a claim that a 6th-grade lesson on ancient Mesopotamia which called on students to apply the Code of Hammurabi to a hypothetical situation amounted to a violation of the Establishment Clause.  The assignment, which coincided with the first day of Black History Month, caused outrage because it involved the death penalty for a defiant slave. The court said in part:

[T]eaching Hammurabi’s Code was not religious education, it was a history lesson.... Neither the school district nor the teachers who used the Mesopotamia materials promoted or endorsed Hammurabi’s Code as a viable moral code or a religious way of life. No reasonable jury could accept plaintiff’s contention that the district forced students to “engage in religion” by asking them to answer in the first person how they would punish a slave....

... [E]ven if all of Mesopotamian culture was theologically based, the teaching of that historical period would not constitute a governmental endorsement of Mesopotamian theology.

The court also rejected Title VI and 14th Amendment claims.

Biden Appoints Imam To USCIRF

Last Friday, President Biden appointed Mohamed Hag Magid to the U.S. Commission on International Religious Freedom. Imam Magid, among other things, is Executive Religious Director of All Dulles Area Muslim Society Center, is Chairman of International Interfaith Peace Corps and is the former President of the Islamic Society of North America. USCIRF is comprised of 9 commissioners, 3 of whom are appointed by the President.