Suit Challenging School's Scheduling of Revival As An Assembly May Move Ahead

In Mays v. Cabell County Board of Education, (SD WV, Dec. 13, 2022), a West Virginia federal district court refused to dismiss a suit against a school, its principal and a substitute teacher for scheduling and hosting an evangelical Christian revival as an assembly in the school auditorium during homeroom period in violation of the Establishment Clause.  The court said in part:

At the very least, the allegations against Principal Gleason and Mr. Jones are that they organized and scheduled a revival that was initiated and sponsored by adults, not students. The revival also was given preferential treatment as it was scheduled during a time and in a location that was unavailable to other groups who wanted to bring in outside speakers. Moreover, Mr. Jones’ entire class and another class were taken to the revival without being told what it was, and Mr. Jones would not let S.F. leave once he was there.... 

Here, Principal Gleason and Mr. Jones encourage the Court to simply accept their version of events and conclude that the Nik Walker Ministries was sponsored by the FCA, and the FCA was allowed to hold an assembly during non-instructional time pursuant to a neutral policy in a limited public forum. Mr. Jones also states he did not require the students in his classroom to attend the revival. However, as this Court previously expressed, the Amended Complaint directly contradicts Defendants’ narrative, creating factual issues that should be explored through discovery, not resolved on a motion to dismiss.

WOWKTV reports on the decision.

Catholic Charities Is Not Exempt from Unemployment Compensation Statute

In Catholic Charities Bureau, Inc. v. State of Wisconsin Labor and Industry Review Commission, (WI App., Dec. 13, 2022), a Wisconsin state appellate court held that Catholic Charities and its sub-entities are not exempt from the Wisconsin Unemployment Compensation Act as organizations "operated primarily for religious purposes." It emphasized that the statute should be "liberally construed to effect unemployment compensation coverage for workers who are economically dependent upon others in respect to their wage-earning status." The court said that it must look to the work of Catholic Charities, not the Catholic Church itself, to determine whether there is an exemption.  Deciding that the court should look both to motives and activities, the court concluded that while Catholic Charities has a religious motivation for its work, the nature of its activities is not religious.  The court said in part:

[T]he activities of CCB and its sub-entities are the provision of charitable social services that are neither inherently or primarily religious activities. CCB and its sub-entities do not operate to inculcate the Catholic faith; they are not engaged in teaching the Catholic religion, evangelizing, or participating in religious rituals or worship services with the social service participants; they do not require their employees, participants, or board members to be of the Catholic faith; participants are not required to attend any religious training, orientation, or services; their funding comes almost entirely from government contracts or private companies, not from the Diocese of Superior; and they do not disseminate any religious material to participants. Nor do CCB and its sub-entities provide program participants with an “education in the doctrine and discipline of the church.”...

UPDATE: On Feb. 9, 2023, the original opinion was withdrawn and was replaced by this opinion on Feb. 14, 2023.

Teacher Sues Over School's Policy on Transgender Students

Suit was filed this week in an Ohio federal district court by a middle school teacher who resigned after refusing on religious grounds to comply with the school's policy regarding transgender students.  The school required teachers to address students by their preferred names and pronouns. The complaint (full text) in Geraghty v. Jackson Local School District Board of Education, (ND OH, filed 12/12/20222), alleges in part:

2. The Constitution guarantees a freedom of thought that includes a freedom to differ.... 

3. The Constitution protects this freedom to differ, in part, by prohibiting the government from adopting and enforcing a set of approved views on these matters in America’s public schools.... 

4. Defendants have abandoned this guiding light and adopted one particular view on this subject: that a person’s subjective identity determines whether a person is male or female, not a person’s sex. Compounding their unlawful adoption of an orthodoxy in this area, they have created and implemented a Policy requiring teachers, including Plaintiff Vivian Geraghty, to mouth her own support of Defendants’ views by forcing her, as a condition of keeping her job as a public school teacher, to participate in the “social transition” of children in her class.

5. Ms. Geraghty has a different view of this fundamental matter, informed by her scientific understanding and her Christian faith....

7. Because no interest justifies the state’s treatment of Ms. Geraghty—indeed, the very nature of free speech, free exercise of religion, and freedom from state-enforced orthodoxy on fundamental matters condemns the state’s attempt to purge contrary views from its schools—she brings this Complaint for injunctive, declaratory, and compensatory relief.

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

Ministerial Exception Doctrine Applies Categorically to Hostile Work Environment Claims

In Rivera v. Diocese of Venice in Florida, Inc., (SD FL., Dec. 12, 2022), a Florida federal district court dismissed under the ministerial exception doctrine a suit by the former principal of a Catholic elementary/ middle school who alleged that a racially motivated hostile work environment led him to resign his position. Plaintiff, who is black, was repeatedly the subject of racial harassment by the priest of the school's parish. The court said in part:

The principal question presented is whether the ministerial exception categorically bars hostile work environment claims under Title VII and FCRA. As further explored below, this is an issue of constitutional interpretation not yet specifically addressed by the Eleventh Circuit....

[T]he Court concludes that the ministerial exception categorically bars Plaintiff's hostile work environment claims....

To determine whether a minister's claim of hostile work environment proceeds based on the degree to which a court believes the fact-specific allegations require excessive entanglement with a church's internal governance is itself to promote and risk excessive entanglement and interference with a church's authority to supervise and manage its ministers. Put another way, the reason why a functional approach is necessary to resolve the threshold question of "minister status" is also one of the reasons why applying the ministerial exception to claims of hostile work environment is necessary to respect the First Amendment. The opposite rule would thrust courts into examining the inner workings of a church's supervision and management of its clergy—the precise harm the ministerial exception seeks to protect. Therefore, Court declines Plaintiff's "nuanced" invitation to treat "non-terminal employment claims" of hostile work environment differently than "tangible" claims of employment discrimination brought by ministers....

[S]hould the Eleventh Circuit disagree with the Court's "categorical" determination or otherwise decide that no such ruling is necessary on these facts, the Court concludes in the alternative that Plaintiff's Amended Complaint merits dismissal because it clearly contains allegations that trigger excessive entanglement into the church's internal governance and supervision of its ministers.

White House Creates Inter-Agency Group to Counter Anitsemitism

White House Press Secretary Karine Jean-Pierre yesterday announced the formation of an inter-agency anti-bias task force whose first priority is developing a national strategy to combat antisemitism.  Her Statement (full text) said in part:

The President is establishing an inter-agency group led by Domestic Policy Council staff and National Security Council staff to increase and better coordinate U.S. Government efforts to counter antisemitism, Islamophobia, and related forms of bias and discrimination within the United States. The President has tasked the inter-agency group, as its first order of business, to develop a national strategy to counter antisemitism. This strategy will raise understanding about antisemitism and the threat it poses to the Jewish community and all Americans, address antisemitic harassment and abuse both online and offline, seek to prevent antisemitic attacks and incidents, and encourage whole-of-society efforts to counter antisemitism and build a more inclusive nation.

The Hill reports on this development.

French Catholic Bishops Set Up National Canonical Penal Court

On December 5, the Conference of Bishops of France in a lengthy press release (full text in French) announced the creation of a National Canonical Penal Court.  According to National Catholic Reporter:

[The Bishops' statement] said the 20-member court, approved by the Vatican in September, would be tasked with judging "canonical offenses committed by clergy and laity" nationwide, such as acts of sacrilege, apostasy, schism, misuse of sacraments and teachings against the church's magisterium. The court aimed to "strengthen and harmonize" procedures formerly followed by diocesan and archdiocesan tribunals....

Establishment of the court, partly staffed by lay experts, was one of 45 recommendations by an Independent Commission on Sexual Abuse in the Church in its 2,500-page report released in October 2021.... 

However, while the new court would hear accusations involving adults, claims of sexual offenses by clergy against minors and canonical complaints against bishops would continue to be referred to the Vatican, the statement said.

The bishops' statement said church courts were "specific to the church's religious purposes," and complied with the country's 1905 church-state separation law.

Canadian Court Says School Demonstration of Indigenous Rituals Did Not Violate Religious Freedom

In Servatius v. Alberni School District No. 70, (BC CA, Dec. 12, 2022), the Court of Appeal for the Canadian province of British Columbia held that a public elementary school did not violate the religious freedom rights of an evangelical Protestant mother when her daughters' classes were made to view a demonstration of indigenous cultural practices. A Nuu-chah-nulth elder demonstrated a smudging ceremony and at a later time a hoop dancer performed at a school assembly and said a prayer during his performance. The appeals court agreed with the trial judge's conclusion that there was no violation of the Charter of Rights and Freedoms because the children merely viewed, and did not participate in the smudging or the prayer. The court said: "religious freedom is not compromised when students are taught about other beliefs." CTV News reports on the decision.

Texas Sues HHS To Invalidate Rule on LGBTQ Discrimination by Adoption Agencies

Suit was filed yesterday in a Texas federal district court challenging a rule adopted by the Department of Health and Human Services that prohibits adoption and foster care agencies receiving federal funds from discriminating on the basis of sexual orientation or gender identity.  It also requires them to recognize same-sex marriages.  In 2019, amidst other litigation, the government previously issued a Notice of Nonenforcement of this rule. (See prior posting.) However, that Notice is being challenged in other litigation.  The complaint (full text) in State of Texas v. Becerra, (SD TX, filed 12/12/22), contends that the rule by its terms does not apply to child placing agencies that contract with state agencies that initially receive federal grants, and that the rule, for numerous reasons, is an invalid exercise of agency authority. Texas Attorney General Ken Paxton issued a press release announcing the filing of the lawsuit.

Recent Articles of Intrerest

 From SSRN:

• David Grenardo, How A Person of Faith Can Address Imposter Syndrome in Law School, (Notre Dame Journal of Law, Ethics and Public Policy, Considerations, Forthcoming 2023).
• Hilary Hogan, The Right to Life and The State’s Investigative Obligations: Fox v Minister for Justice, (November 15, 2022).
• Andrew Coan, What Is the Matter with Dobbs?, (Arizona Legal Studies Discussion Paper No. 22-24 (2022)).
• I. Glenn Cohen, Reproductive Technologies and Embryo Destruction After Dobbs, (in Roe v. Dobbs: The Past, Present and Future of a Constitutional Right of Abortion, (Geoffrey R. Stone and Lee Bolinger eds., 2023, Forthcoming)).
• Gabrielle Dohmen, Academic Freedom and Misgendered Honorifics in the Classroom, (89 U. Chi. L. Rev. 1557 (2022)).
• Liam Concannon, Gay Men as Adoptive Fathers, Hegemonic Heteronormativity, and the Advent of the Queer Family, (October 24, 2022).

HHS Must Assure Parental Consent in Grantee Programs That Distribute Contraceptives to Minors

In Deanda v. Becerra, (ND TX, Dec, 8, 20222), a Texas federal district court held that a Texas statute which protects parental rights to consent to a minor's medical care applies to all Title X grantees in Texas.  Title X of the Public Health Service Act provides for grants to entities offering family planning services.  Plaintiff, a Christian raising his daughters in accordance with Christian teachings that require unmarried children to refrain from sexual intercourse until marriage, contends that the Department of Health and Human Services is not monitoring grantees to ensure that they obtain parental consent to providing contraceptives to minors. The court rejected defendant's claim that Title X pre-empts Texas law on parental rights. It went on to hold that parents have a federal constitutional right to control the medical care of their minor children, and this includes the right to consent to contraception.  The court said in part:

Contraception is a serious matter - both medically and for parents' rights to control the upbringing and education of their children. Several popular methods of birth control carry serious side effects. The courts that have denied parental consent rights apparently presume contraceptive drugs are "no big deal." ... 

[O]mitting parental consent gives insufficient weight to the undesirability of teenage promiscuity.

9th Circuit: Native American Student's Suit Over Wearing Eagle Feather at Graduation Should Move Ahead

 In Waln v. Dysart School District, (9th Cir., Dec. 9, 2022), the U.S. 9th Circuit Court of Appeals held that a free speech and free exercise suit against an Arizona school district should not have been dismissed by the district court.  The school district refused to allow a Native American student to wear an eagle feather in her cap during graduation ceremonies. Wearing the eagle feather, which had been blessed and is considered a sacred object, was a religious practice. Sustaining plaintiff's Free Exercise claim, a majority of the court said in part:

Plaintiff has carried her burden, at the motion-to-dismiss stage, to show that the District’s policy [prohibiting decoration of graduation caps] is not generally applicable because it was enforced in a selective manner.

The court also held that plaintiff should be able to move ahead on her free speech claim, saying in part:

Here, the complaint plausibly alleges that the District enforced its facially neutral policy in a selective way.

The majority rejected the school district's contention that it had a compelling interest in complying with the Establishment Clause. 

Judge Baker filed an opinion dissenting in part, contending that plaintiff had not adequately alleged that the school district selectively enforced its policy against decorating graduation caps. However, he believed that the district court erred in not permitting plaintiff to amend her complaint to provide more factual content.

Human Rights Day/ Week

Yesterday was Human Rights Day and this week is Human Rights Week.  On Friday, President Biden issued a Presidential Proclamation (full text) recognizing the dates. December 10 is the anniversary of the U.N.'s adoption of the Universal Declaration of Human Rights. The Presidential Proclamation reads in part:

Around the world — from China to Burma, Afghanistan to Iran, Ethiopia to Ukraine, and beyond — courageous people are standing up to abuses of power, staying strong amid threats to their lives, and speaking out against violations of their fundamental freedoms. 

The United States stands fully with these brave women and men fighting for their basic human rights in the face of oppression and injustice — and we always will.  That is why we moved to rejoin the United Nations Human Rights Council in 2021 and reassert our moral leadership on the global stage.  It is why my Administration is amplifying the voices of religious, racial, and ethnic minorities; women and girls; LGBTQI+ communities; persons with disabilities; and pro-democracy activists and defenders, who are too often targeted by violence or denied equal protection under the law.

8th Circuit Affirms RFRA Rights of Catholic Health Care Organizations to Refuse Gender Transition Services

In Religious Sisters of Mercy v. Becerra, (8th Cir., Dec. 9, 2022), the U.S. 8th Circuit Court of Appeals affirmed a district court decision that enjoined the federal government from requiring various Catholic health care organizations to perform or provide insurance coverage for gender transition procedures. The district court concluded that plaintiffs' rights under the Religious Freedom Restoration Act were violated by the requirements imposed by the government's interpretation of the Affordable Care Act and Title VII.  On appeal, the government raised only jurisdictional challenges-- standing, ripeness and lack of irreparable harm.  The 8th Circuit rejected the government's challenges, except as to standing of one organizational plaintiff.

4th Annual Religious Freedom Index Released

Becket Fund for Religious Liberty this week released its fourth annual Religious Freedom Index. The 99-page Report (full text) (summary) is described in its Executive Summary:

The Index is designed to give a holistic view of American attitudes toward religious freedom by surveying a nationally representative sample of approximately 1,000 American adults each year. The survey consists of 21 annually repeating questions that cover a broad range of topics, from the rights of religious people to practice their respective faiths to the role of government in protecting and promoting religious beliefs. The responses to these questions break down into six dimensions: 1) Religious Pluralism, 2) Religion and Policy, 3) Religious Sharing, 4) Religion in Society, 5) Church and State, and 6) Religion in Action.

According to Becket's press release:

When asked about religious pluralism, more respondents than ever said that they think people should be free to choose a religion, to worship without fear of persecution, and to practice religion in daily life. Since 2020, this dimension of religious freedom increased by over 10 points, with over 90 percent of respondents completely or mostly agreeing to protect these freedoms.  

Americans’ support for religious minorities was also high. New questions on the Index asked respondents about protections for Native American sacred sites on federal land. Overall, 89 percent of respondents supported these protections, with strong support for these protections (57 percent) dwarfing strong opposition (three percent) by nearly 20 to 1.

European Commission Appoints Special Envoy for Promoting Religious Freedom

The European Commission announced this week that it has appointed Belgian diplomat Frans van Daele as Special Envoy for the Promotion of Freedom of Religion or Belief Outside the EU. (EC News Release [scroll down to "Appointments"]). The announcement describes the Special Envoy's duties:

The Special Envoy will establish a dialogue with national authorities and other stakeholders in countries suffering from discrimination on the grounds of religion or belief. He will support for intercultural and interreligious dialogue processes, including encouraging dialogue between representatives of different faiths and the setting up of joint initiatives. He will put in place measures to target de-radicalisation and prevention of extremism on grounds of religion or belief in third countries. In cooperation with authorities from third countries, he will promote religious diversity and tolerance within educational programmes and curricula. The Special Envoy will coordinate his activities closely with the EU Special Representative on Human Rights.

Among his prior diplomatic position, van Daele served as Belgian Ambassador to the United States from 2002 to 2006. ADF International issued a press release commenting on the appointment.

Congress Gives Final Passage To Respect For Marriage Act

 Yesterday the U.S. House of Representatives gave final passage to HR 8404 the Respect for Marriage Act (full text). By a vote of 258- 169, the House accepted the amendments added to the original bill by the Senate. The bill now goes to President Biden for his signature. Biden issued a statement yesterday praising Congress' passage of the bill. The bill assures federal recognition of same-sex and interracial marriages between two individuals and requires states to recognize same-sex and interracial marriages from other states. The bill goes on to provide:

Consistent with the First Amendment to the Constitution, nonprofit religious organizations, including churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, religious educational institutions, and nonprofit entities whose principal purpose is the study, practice, or advancement of religion, and any employee of such an organization, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any refusal under this subsection to provide such services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action....

 Nothing in this Act, or any amendment made by this Act, shall be construed to deny or alter any benefit, status, or right of an otherwise eligible entity or person which does not arise from a marriage, including tax-exempt status, tax treatment, educational funding, or a grant, contract, agreement, guarantee, loan, scholarship, license, certification, accreditation, claim, or defense.

Fox4 reports on contents of the bill.

UPDATE: On Sept. 13, President Biden signed the bill into law. (White House press release.)

House Hearing Explores Lobbying of Supreme Court by Religious Conservatives

Yesterday, the House Judiciary Committee held a hearing titled Undue Influence: Operation Higher Court and Politicking at SCOTUS. One of the witnesses was Rev. Robert Schenck who, in his written testimony, expanded on his previously published interview with the New York Times.  Schenck recounts his organization's attempts to gain access to Supreme Court Justices through donors to the Supreme Court Historical Society. He said in part:

My purpose was to develop relationships with the Justices who held positions sympathetic to religious conservatives' general concerns. In this way, I could gain insights into their thinking regarding the questions and cases that come before them and, perhaps, read their disposition toward the topics of most significant interest to me and my cohorts. Over time, I also thought my associates and supporters might be able to shore up the resolve of the conservative members. Our concern was for cases we adjudged beneficial to the country's culture, such as those restricting or banning abortion, euthanasia and assisted suicide, as well as same-sex relationships, especially marriage, and those expanding religious liberty, predominantly Christian practice, and public displays of Christian belief. The Historical Society was also a place where my cohorts and I could learn more about the customs, traditions, mores, and protocols of the Court, easing our entry into their social circles.

His testimony went on to describe his learning in advance about the outcome of the Hobby Lobby case. 

Another witness before the Committee, Mark R. Paoletta, in his written testimony sharply criticized Schenck's account, saying that Schenck has "built his career on deception and deceit."  NPR reports on the hearing.

UK Supreme Court Upholds Northern Ireland Abortion Clinic Buffer Zone Law

In Reference by the Attorney General for Northern Ireland - Abortion Services (Safe Access Zones) (Northern Ireland) Bill, (UK SC, Dec. 7, 2022), the United Kingdom Supreme Court held that Northern Ireland legislation creating a safe access zone of 100 meters from abortion clinic entrances that is off limits to abortion protesters does not violate the European Convention on Human Rights. The Court said in part:

156. The right of women in Northern Ireland to access abortion services has now been established in law through the processes of democracy. That legal right should not be obstructed or impaired by the accommodation of claims by opponents of the legislation based, some might think ironically, on the liberal values protected by the Convention. A legal system which enabled those who had lost the political debate to undermine the legislation permitting abortion, by relying on freedom of conscience, freedom of expression and freedom of assembly, would in practice align the law with the values of the opponents of reform and deprive women of the protection of rights which have been legislatively enacted.

A press release by the Court summarizes the 56-page opinion.  Catholic World Report discusses the decision.

Jewish Congregation Sues for Return of Deeds To 5000 Burial Plots

 An unusual suit was filed this week in a New York state trial court by a Bukharian Jewish religious organization which is seeking to recover nearly 5,000 burial plot deeds that the organization says belong to it. The complaint (full text) in Bukharian Jewish Community Center v. Nektalova, (NY County Sup. Ct., filed 12/6/2022) alleges that United Bukharian Congregation holds cemetery documents in trust for members of the Bukharian Jewish community in New York. One of its members, 92-year old Roman Nektalov, was in charge of providing the relevant deeds to cemeteries and families when funerals of members were being arranged.  During COVID, Nektalov took the deeds to his home so he could distribute them from there. A domestic dispute arose between Nektalov and his wife. His wife obtained a protective order which prevents Nektalov from accessing the deeds in his home. She later filed for divorce and refuses to turn the deeds over to the religious organizations, claiming that they are marital property. The Jewish organizations ask the court to hold that they are the rightful owners of the deeds, and to order them turned over to them or to a receiver. AMNY reports on the lawsuit. [Names in post corrected]

Oklahoma Attorney General's Opinion Says Ban on Sectarian Charter Schools Is Unconstitutional

 In Attorney General Opinion 2022-7, (Dec. 1, 2022), Oklahoma Attorney General John M. O'Connor concluded that the ban in Oklahoma law on publicly funded charter schools being sectarian or religiously affiliated is unconstitutional. He said in part:

You ask what effect, if any, the Trinity Lutheran, Espinoza, and Carson decisions have on the validity of the non-sectarian restrictions found in Section 3-136(A)(2) of the Oklahoma Charter School Act. That passage states as follows:

A charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations. A sponsor may not authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution....

We believe, based on the First Amendment and the Trinity Lutheran, Espinoza, and Carson line of decisions, that the U.S. Supreme Court would likely hold these restrictions unconstitutional....

It is important to emphasize, however, that to the extent that neutral and generally applicable limitations may be found elsewhere in the Act, those limitations can likely be applied to religious charter schools, so long as they are truly neutral and applied equally to all charter schools alike.... The constitutional problem is singling out religion, not necessarily the provisions found elsewhere regulating various aspects of charter schools.

The Oklahoman reports on the Attorney General's Opinion.