Religion Clause

Monday, November 07, 2022

Saturday, November 05, 2022

European Court: Human Rights Convention Violated When French Authorities Failed to Assure Respect for Foster Child's Birth Religion

In Loste v. France, (ECHR, Nov. 3, 2022) (full text in French) (Press Release summary in English), the European Court of Human Rights in a Chamber judgment held that France's child welfare service violated Article 9 of the European Convention on Human Rights when it failed to assure that a Jehovah's Witness foster family was respecting the Muslim beliefs of its foster child's birth family. The Court's decision also dealt with a separate issue--French authorities' failure to protect the foster child from sexual abuse by her foster father. Law & Religion UK has more on the decision.

Friday, November 04, 2022

Suit Challenges New York Ban on Firearms in Houses of Worship

Suit was filed this week in a New York federal district court challenging the constitutionality of New York's ban on carrying firearms in houses of worship. The complaint (full text) in His Tabernacle Family Church, Inc. v. Nigrelli, (WD NY, filed 11/3/2022) alleges that the ban violates the free exercise, Establishment Clause, Second Amendment, and equal protection rights of a church and its pastor. The complaint says in part:

S51001 forbids Pastor Spencer and the Church’s members, under threat of criminal penalties, from exercising their religious conviction to carry firearms into the Church to protect themselves and other congregants.....

[S51101] subjects houses of worship to disfavored treatment while treating comparable secular organizations, such as retail stores or restaurants, more favorably than those offering religious exercise....

A church’s authority over who may enter the sanctuary and under what circumstances lies at the very heart of “the general principle of church autonomy” protected by the Establishment Clause.....

First Liberty issued a press release announcing the filing of the lawsuit. Last month, in another case, the same court issued a temporary restraining order barring enforcement of this statutory provision. (See prior posting.)

Emergency Injunction Against NYC City-Worker Vaccine Mandates Sought from Supreme Court

An Emergency Application for an Injunction Pending Appellate Review (full text) was filed with the U.S. Supreme Court yesterday in New Yorkers for Religious Liberty v. City of New York. The petition seeks an injunction against enforcing New York City's Covid vaccine mandates for city workers against those with religious objections to the vaccine. Petitioners argue in part:

Because the City’s Mandates provide for individualized exemptions, play denominational favorites, grant the government substantial discretion, and treat religious objectors less favorably than secular (e.g., economic) objectors, the Mandates violate Applicants’ free-exercise rights.

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

Challenges To School COVID Mitigation Requirements Are Dismissed

In Tracy v. Stephens, (D UT, Nov. 1, 2022), a Utah federal district court dismissed claims that plaintiffs' rights were violated by school district COVID orders requiring the wearing of masks and social distancing. The court said in part:

Plaintiffs have not identified what speech or type of speech was suppressed, meaning the court cannot apply the correct test to determine whether a regulation of it was permissible.... Plaintiffs have also not pleaded facts allowing for a plausible inference that by declining to wear masks or face coverings, or to participate in social distancing or isolation measures, they were engaged in inherently expressive conduct protected by the First Amendment....

Plaintiffs assert the Free Exercise Clause is implicated because they “hold a deeply held religious belief against the covering of their faces as this would violate their religious conscience,” and that they have a “God-given right to refuse unwanted medical treatment.”... But the Amended Complaint does not contain sufficient facts for the court to engage in the required analysis. Plaintiffs neither sufficiently identify the religious practices targeted and suppressed by Defendants, nor the provision(s) of the regulation(s) used by Defendants to target these practices. But Plaintiffs do identify an exemption process that would seemingly have allowed them to avoid the regulations’ requirements....

The court also dismissed plaintiffs' freedom of association, due process, equal protection, 4th, 9th and 13th Amendment, Civil Rights Act, conspiracy and state constitutional claims.

Disciplinary Warning to Justice of the Peace Who Would Not Perform Same-Sex Weddings Is Upheld

In Hensley v. State Commission on Judicial Conduct, (TX App., Nov. 3, 2022), a Texas state appellate court affirmed the dismissal of a suit challenging a public warning issued by the Commission on Judicial Conduct that concluded plaintiff, a justice of the peace, has cast doubt on her ability to act impartially toward LGBTQ litigants. Plaintiff refused to perform same-sex weddings, while continuing to perform weddings for heterosexual couples. Instead of appealing the Commission's public warning to a special court of review, as provided by Texas statutes, plaintiff filed suit in state trial court arguing that the Commission had violated her rights under the Texas Religious Freedom Act and that her conduct had not violated the Code of Judicial Conduct. She sought damages and additional declaratory relief. The appeals court said in part:

The trial court correctly dismissed this impermissible collateral attack on the Commission’s order....

Because the evidence establishes that the Commission has in fact not threatened further disciplinary action against Hensley, she has failed to carry her burden of demonstrating that the TRFRA waives the Commission’s immunity for her claim that threats of further discipline by the Commission have burdened her free exercise of religion.

Justice Goodwin filed a concurring opinion saying in part:

I would decide Hensley’s TRFRA claims on the ground that she did not comply with its notice provisions.... I do not agree with the Court’s analysis..., particularly the Court making an implicit finding by the Commission that its investigation and disciplinary action did not substantially violate Hensley’s free exercise of religion and that this implied finding foreclosed any future claims.

KWTX News reports on the decision.

Thursday, November 03, 2022

9th Circuit: Requiring Beauty Pageant to Include Transgender Female Violates Its Free Speech Rights

In Green v. Miss United States of America, LLC, (9th Cir., Nov. 2, 2022), the U.S. 9th Circuit Court of Appeals held that it violates the free speech rights of the Miss USA Pageant to require it under Oregon's Public Accommodations Act to include a transgender female in the Pageant. The court's majority, in an opinion by Judge VanDyke joined by Judge Bea, said in part:

Requiring Miss United States of America to allow Green to compete in its pageants would be to explicitly require Miss United States of America to remove its “natural born female” rule from its entry requirements. This in turn would directly affect the message that is conveyed by every single contestant in a Miss United States of America pageant. With the Pageant’s “natural born female” rule, every viewer of a Miss United States of America pageant receives the Pageant’s message that the “ideal woman” is a biological female, because every contestant is a “natural born female.” If the Pageant were no longer able to enforce its “natural born female” rule, even if a given transgender contestant or contestants never openly communicated to anyone outside of the Pageant their transgender status and were otherwise fully indistinguishable from the “natural born female” contestants (at least as presented in the Pageant)—and more fundamentally, even if no transgender contestants were to enter a Miss United States of America pageant—the Pageant’s expression would nonetheless be fundamentally altered. Without the “natural born female” rule, viewers would be viewing a fundamentally different pageant from that which presently obtains: one which could contain contestants who are not “natural born female[s].” Thus, the Pageant’s desired expression of who can be an “ideal woman” would be suppressed and thereby transformed through the coercive power of the law if the OPAA were to be applied to it....

Application of the OPAA would force the Pageant to include Green and therefore alter its speech. Such compulsion is a content-based regulation under our caselaw, and as such warrants strict scrutiny.

Judge VanDyke also filed a concurring opinion speaking only for himself, saying that forced inclusion of a transgender female in the Pageant infringes the Pageant's freedom of association as well as its freedom of speech.

Judge Graber dissented, contending that the court should not reach the constitutional question until it is determined whether the Oregon Public Accommodations Act even applies to the Miss USA Pageant. Reuters reports on the decision.

Wednesday, November 02, 2022

Religious Parties Winning 33 Seats In Israel's Knesset Election

Haaretz reports that as of 4:07 PM Nov. 2 (Israeli time), with 85.9% of the vote in yesterday's election counted, three Jewish religious parties appear to have won seats in the Knesset: Religious Zionism- 14 seats; Shas- 11 seats; United Torah Judaism- 8 seats. Benjamin Netanyahu's Likud Party appears to have won 32 seats, so that in coalition with the religious parties, they will have a majority of the 120 seats in the Knesset. There could be some change in these numbers as Meretz has won 3.19% of the vote so far. If this increases to 3.25% in the final tabulation, it will take a seat.

Suit Challenges Law Limiting Employer Right to Force Employees to Listen to Religious Presentations

A number of business organizations filed suit yesterday in a Connecticut federal district court challenging on free speech grounds a Connecticut statute that protects employees from being made into captive audiences. The statute imposes liability on employers that discipline employees who refuse to attend employer-sponsored meetings or listen to employer communications whose primary purpose is to express the employer's views on religious or political matters. The complaint (full text) in Chamber of Commerce of the USA v. Bartolemo, (D CT, filed 11/1/2022), also contends that the state law is pre-empted by the National Labor Relations Act. Ct Mirror reports on the lawsuit.

Tuesday, November 01, 2022

New Survey Covers Attitudes About Religion, Christianity and Christian Nationalism in Public Life

The Pew Research Center last week (Oct. 27) released an extensive poll on the attitudes of the American public about religion's role in public life. It asked questions about whether the U.S. should be a Christian nation, whether respondents have heard of Christian nationalism, and much more. The 65-page report (full text) on the poll says in part:

Overall, six-in-ten U.S. adults – including nearly seven-in-ten Christians – say they believe the founders “originally intended” for the U.S. to be a Christian nation. And 45% of U.S. adults – including about six-in-ten Christians – say they think the country “should be” a Christian nation. A third say the U.S. “is now” a Christian nation.

At the same time, a large majority of the public expresses some reservations about intermingling religion and government. For example, about three-quarters of U.S. adults (77%) say that churches and other houses of worship should not endorse candidates for political offices. Two-thirds (67%) say that religious institutions should keep out of political matters rather than expressing their views on day-to-day social or political questions. And the new survey – along with other recent Center research – makes clear that there is far more support for the idea of separation of church and state than opposition to it among Americans overall.

Student and Coach Sue After Being Disciplined for Criticizing Transgender Student's Use of Girl's Locker Room

Suit was filed last week in a Vermont federal district court by a 14-year old student and her father, a school soccer coach, contending that their free speech and due process rights were violated when the school disciplined them for remarks they made criticizing a transgender female's use of the girl's locker room. The daughter's remarks were made to friends in a French class. The father made his remarks in a Facebook post. The controversy escalated and was covered by a local TV station. The complaint (full text) in Allen v. Millington, (D VT, filed 10/27/2022), alleges in part:

The First Amendment does not countenance this kind of government censorship, where a public school mandates that students and coaches refrain from expressing any view that offends its prescribed views....This case presents a textbook example of unconstitutional viewpoint discrimination, and Plaintiffs are entitled to all appropriate relief.

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

Legal Changes to Promote Religious Harmony Come into Effect in Singapore

A press release from the Singapore Ministry of Home Affairs points out that 2019 amendments to the Maintenance of Religious Harmony Act and 2021 amendments to the Criminal Law go into effect today. According to the press release:

Key administrative leadership positions in religious groups are to be held only by Singapore Citizens (SC) or Permanent Residents (PR), and the majority of the governing body has to be SCs....

Religious groups must declare single monetary donations of S$10,000 or more from foreign sources...

Religious groups must declare any affiliations to foreign persons or organisations which are in a position of control or power over the local religious group....

... [W]e will introduce the CRI [Community Remedial Initiative], to be offered by the Minister for Home Affairs, as an opportunity for a person to take remedial actions to soothe communal tensions and repair disrupted ties.

(a) Examples of such remedial actions include a public or private apology to the aggrieved parties, or participation in inter-religious events. This will provide an opportunity for the person to make amends to the affected community, and better understand the sensitivities of Singapore’s multi-religious society....

... [A]mendments will update the RO [Restraining Order] regime to enable us to swiftly and effectively respond to offensive online content that might cause widespread harm to religious harmony. The updated RO regime will also allow us to safeguard against foreign influences on our local religious groups that may undermine our religious harmony....

Monday, October 31, 2022

Cert. Denied in Mootness Dismissal of Free Exercise Challenge to Mask Mandate

The U.S. Supreme Court this morning denied review in Resurrection School v. Hertel, (Docket No. 22-181, certiorari denied 10/31/2022). (Order List.) In the case, an en banc panel of the U.S. 6th Circuit Court of Appeals held by a vote of 13-1-3 that a free exercise challenge to Michigan's COVID mask mandate for school children is moot. (See prior posting.)

National Motto in Public Schools Again Upheld

In JLF v. Tennessee State Board of Education, (MD TN, Oct. 27, 2022), plaintiff asked a Tennessee federal district court to reconsider its prior holding that display of the national motto "In God We Trust" in a public charter school lobby did not violate the Establishment Clause. Plaintiff argued that the U.S. Supreme Court's holding in Kennedy v. Bremerton School District which rejected the Lemon test and adopted the Historical Practice test for Establishment Clause cases constitutes an intervening change in controlling law. However, the court denied plaintiff's motion to reconsider, saying in part:

Kennedy has no effect on the court’s previous ruling, because the court did not rely on Lemon to reject the plaintiff’s Establishment Clause claim and, instead, considered the national motto in its historical context to conclude that its posting in public schools does not violate the Establishment Clause.

Sunday, October 30, 2022

Denial of Jury Instruction on Defendant's Religious Exercise Is Upheld

In United States v. Dickey, (7th Cir., Oct. 28, 2022), the U.S. 7th Circuit Court of Appeals upheld a trial court's refusal to give a jury instruction sought by a criminal defendant who was the leader of her own church, Deliverance Tabernacle Ministry, who was convicted of wire fraud and forced labor. According to the court:

[T]hrough her proselytizing, Dickey groomed vulnerable victims and forced them to disavow their families, live in the church, and work multiple full‐time jobs. The victims would then give Dickey all their wages, which she would keep for herself.... If someone disobeyed, Dickey threatened them with violence and required them to be homeless until she considered them redeemed. All told, her scheme netted $1.5 million, most of which came from DTM members. She spent over $1 million on personal expenses, such as travel, rental and vacation properties, and luxury hotels....

Dickey wanted the jury instructed as follows:

You should not consider the ways in which the Defendant exercised or practiced her religion in determining whether she is guilty of these charges. All individuals have a right to the free exercise of religion.

Her proposed jury instruction failed at the outset because it is not an accurate statement of the law. Dickey’s proposed instruction would have excused her criminal conduct based on her religious assertions. That broad interpretation finds no support in the caselaw. To the contrary, neutral laws of general applicability are consistent with the First Amendment.

Friday, October 28, 2022

Suit Over Teaching 1st Graders About Transgender Topics Moves Forward

In Tatel v. Mt. Lebanon School District, (WD PA, Oct. 27, 2022), a Pennsylvania federal district court allowed parents of first graders to move ahead with their due process, equal protection and free exercise claims against a teacher who has a transgender child for teaching their students about transgender topics over parental objections. It also permitted plaintiffs to move ahead against school administrators, the school board and the school district The court summarized its decision, saying in part:

[T]he factual allegations in the complaint present plausible claims that Parents have fundamental constitutional rights (pursuant to Substantive and Procedural Due Process under the Fourteenth Amendment and the First Amendment Free Exercise clause) that were violated by a public school teacher, over the Parents’ objections and without notice and opt out rights, when the teacher promoted her own agenda to their first grade children about gender dysphoria and transgender transitioning, including showing videos or reading books about those topics, telling the children that the Parents may be wrong about the child’s gender, telling a child she would never lie (implying the parents may be lying about the child’s identity), telling the children to keep the discussions about transgender topics secret, and grooming a student to become a transgender child. The Equal Protection and familial privacy claims asserted by the Plaintiffs are plausible, but will benefit from further factual development.

A claim based on the children's privacy rights was dismissed without prejudice.

Scottish Court Awards Damages for Franklin Graham's Cancelled Event

In Billy Graham Evangelistic Association v. Scottish Event Campus Limited, (Glascow Sheriff's Ct., Oct. 24, 2022), a trial court in Scotland concluded that a large arena in Scotland whose majority owner is the city of Glascow violated the Equality Act when it cancelled an appearance by evangelist Franklin Graham because of concern that he might make homophobic and Islamophobic comments during his appearance. The court awarded Graham's organization damages equivalent to $112,000(US). The court said in part:

The event was cancelled because of (a) the religious or philosophical beliefs of the pursuer and Franklin Graham as viewed by the defender and (b) the reaction by others to the religious or philosophical beliefs professed by the pursuer and/or Franklin Graham. Those objectors had included the defender’s principal shareholder, its sponsor, objectors on social media, some press, an MSP and persons representing contrasting religious views.

(See prior related posting.) Charlotte Observer and BBC News report on the decision.

Prof Who Criticized Native American Grave Repatriation Laws Can Move Ahead with Retaliation Suit

In Weiss v. Perez, (ND CA, Oct. 19, 2022), a California federal district court allowed a tenured professor of physical anthropology at San Jose State University to move ahead against most of the defendants she named in a lawsuit alleging that the University has retaliated her against because of her opposition to repatriation of Native American remains. In a book that Prof. Elizabeth Weiss co-authored that was published in 2020, she argued that the Native American Graves Protection and Repatriation Act and the California Native American Graves Protection and Repatriation Act "undermine objective scientific inquiry and violate the Establishment Clause of the United States Constitution by favoring religion over science." She expressed similar views in an op-ed and on Twitter. Weiss claims that because of her speaking on this issue, the University has interfered with her research and limited her professional activities in a number of ways that have reduced her responsibilities and damaged her professional reputation. The Art Newspaper reports on the decision.

Kroger Settles Religious Accommodation Suit With EEOC

As reported by HR Dive, the EEOC announced yesterday that it has reached a settlement in a religious discrimination suit it had filed against a Conway, Arkansas Kroger store for failing to accommodate two employees who refused to wear the company's apron which features a four-color heart symbol. Kroger developed the symbol as part of a campaign emphasizing the company's four service-based commitments. The employees insisted that the symbol promotes the LGBT community which the employees' religious beliefs preclude them from doing. (See prior posting.) Under the settlement, Kroger will pay each employee $20,000 in back pay plus $52,000 each in additional damages. Another $36,000 in damages is apparently for attorneys' fees. Kroger has also agreed to create a religious accommodation policy and will give additional religious discrimination training to store management.