New Michigan Law Bars Employment Discrimination Because of Abortion

Yesterday, Michigan Governor Gretchen Whitmer signed SB147 (full text) which amends the Elliott-Larsen Civil Rights Act to bar discrimination because the individual has had an abortion. Bridge Michigan reports on the new law.

European Court Upholds Politician's Conviction for Failing to Remove Third Party Hate Speech from His Facebook Page

In Sanchez v. France, (ECHR, May 15, 2023), the European Court of Human Rights by a vote of 13-4 in a Grand Chamber judgment upheld France's conviction of a candidate for election to Parliament who was convicted of inciting violence against Muslims when he failed to promptly remove anti-Muslim postings by third parties placed on his Facebook page. The authors of the comments were convicted as accomplices. The majority concluded that the conviction did not violate Article 10, §1 of the European Convention on Human Rights since that section permits an interference with free expression when "necessary in a democratic society."  The majority said in part:

148.  While political speech calls for an elevated level of protection, the freedom of political debate is not absolute in nature....

149.  Since tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society, it follows that, in principle, it may be considered necessary in certain democratic societies to penalise or even prevent all forms of expression that propagate, encourage, promote or justify hatred based on intolerance (including religious intolerance), provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued.... 

176.  ... [I]n an election context, the impact of racist and xenophobic discourse becomes greater and more harmful.... That is particularly true in the present circumstances where the political and social climate was troubled, especially at the local level with “clear tensions within the population, which were evident in particular from the comments at issue, but also between the protagonists”.... 

209.  ... [T]he Court finds that the decisions of the domestic courts were based on relevant and sufficient reasons, both as to the liability attributed to the applicant, in his capacity as a politician, for the unlawful comments posted in the run-up to an election on his Facebook “wall” by third parties, who themselves were identified and prosecuted as accomplices, and as to his criminal conviction. The impugned interference can therefore be considered to have been “necessary in a democratic society”.

The Court also posted a Legal Summary of the decision.

Counselor Sues After Being Fired for Speaking About School's Gender Support Plan

Suit was filed yesterday in an Indiana federal district court by a school counselor who was fired for speaking with a reporter about her school's Gender Support Plan policy which involves using a gender transitioning student's preferred name and pronouns, sometimes without informing the student's parents. The school claimed that some of the counselor's statements to the reporter were false. The complaint (full text) in McCord v. South Madison Community School Corporation, (SD IN, filed 5/18/2023), alleges that the firing violated the counselor's free speech rights. It also alleged that the school district violated plaintiff's right to free exercise of religion, in violation of the 1st Amendment and of Indiana's Religious Freedom Restoration Act. The complaint alleges in part:

420. ... Mrs. McCord has sincerely held religious beliefs that require her not to participate in the Gender Support Plan policy; socially transitioning students and hiding social transitions from parents would violate those beliefs.

421. If South Madison had not taken adverse employment action against Mrs. McCord in retaliation for exercising her constitutional rights, she could not comply and would not intend to comply with the Gender Support Plan policy’s requirements regarding socially transitioning students and parental notification.

422. South Madison has failed to act in a neutral manner toward Mrs. McCord’s religious beliefs but has instead acted with hostility towards those beliefs.

423. Among other things, its employee, Mr. Taylor, acting pursuant to South Madison’s policies and practices, instructed Mrs. McCord to leave her religious beliefs out of her job as a school counselor.

424. Additionally, South Madison has targeted Mrs. McCord for her religious beliefs by granting accommodations allowing other employees who have not asserted Mrs. McCord’s religious beliefs not to comply with the Gender Support Plan policy, while refusing to grant one to Mrs. McCord.

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

5th Circuit Hears Arguments on FDA Approval of Abortion Drug

Yesterday the U.S. 5th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Alliance for Hippocratic Medicine v. Food & Drug Administration.  In the case, a Texas federal district court held that plaintiffs have a substantial likelihood of success on their claim that the FDA's 2021 action allowing the abortion drug mifepristone to be distributed by mail violates the Comstock Act and thus was also in violation of the Administrative Procedure Act. The court also concluded that the FDA's approval in 2000 of doctors prescribing mifepristone violated the agency's rules for approval of new drugs. (See prior posting.) Last month, the U.S. Supreme Court granted a stay of the district court's order that is to last until appeals to both the 5th Circuit and the Supreme Court have run their course. (See prior posting.)  CNN reports on yesterday's oral arguments.

Texas Legislature Passes Law Banning Gender-Affirming Health Care for Individuals Under 18

Yesterday the Texas legislature gave final approval to SB 14 (full text) which prohibits the provision of gender transitioning or gender reassignment procedures to individuals under 18 years of age. The bill bars both surgeries and puberty suppression or blockers. The state medical board is required to revoke the license of any physician who violates the treatment ban. Texas Governor Greg Abbott is expected to sign the bill.  AP reports on the bill's passage.

Establishment Clause Challenge to Transcendental Meditation Program in High School Moves Ahead

In Williams v. Board of Education of the City of Chicago, (ND IL, May 16, 2023), an Illinois federal district court refused to grant summary judgment to either side on an Establishment Clause challenge to a high school's elective instruction in Transcendental Meditation brought by former student Amonte Williams.  The court said in part:

[T]here is evidence that a Transcendental Meditation instructor separated Williams from his classmates and brought him individually to a different classroom for the initiation. A reasonable jury could find that Williams, having arguably signed up to be trained in Transcendental Meditation, was then required to observe a religious ceremony in order to learn meditation and was misled about the ceremony's religious nature. The scenario as presented by Williams differs from the school prayer cases ... because there was no imposition or mention of any specific beliefs by the defendants. But the initiation ceremony distinguishes this situation from those cases involving the simple practice of Yoga in schools.... The evidence in this record— most notably the details of the initiation ceremony—suggest that a reasonable jury could find that the Transcendental Meditation training as implemented was religious in nature or at least included a required religious ceremony....

... A reasonable jury could find that Williams felt pressured to support the purportedly religious aspects of Transcendental Meditation during the initiation ceremony, when he saw various items placed around a picture of a teacher of Transcendental Meditation while the instructor spoke in a language he did not understand. It is less clear whether Williams would have felt pressured to support the instructor-led meditation in the classrooms.... [T]he Court denies the defendants' motion for summary judgment.... To the extent that Williams intended to move for summary judgment on his Establishment Clause claim ...,  the Court denies the motion. The reason is that a reasonable jury could find that there was no "captive audience," that the initiation ceremony was not religious in nature, or that Williams did not feel pressured to support any religious aspects of the program.

7th Grader Sues Over School's Hate Speech Dress Code

Suit was filed yesterday in a Massachusetts federal district court challenging the Middleborough school district's Dress Code which provides:

Clothing must not state, imply, or depict hate speech or imagery that target groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.

The complaint (full text) in Morrison v. Town of Middleborough, (ED MA, filed 5/17/2023), alleges that a 7th-grader's free speech rights were violated when he was not permitted to attend classes wearing a T-shirt carrying the message, "There are only two genders". Two weeks later he came to school wearing a shirt with the message, "There are censored genders". He was also barred from wearing this shirt.  The complaint alleges in part:

101. As Defendants interpret their Speech Policy, some viewpoints on the topic of “gender identity or expression” are permitted while some viewpoints on the same topic are prohibited. In particular, speech expressing the viewpoint that there are only two genders is prohibited, while speech expressing the viewpoint that gender is fluid and is on a spectrum is permitted....

135. Defendants’ censorship of Liam’s shirts while permitting shirts and other apparel with different messages on related topics is viewpoint discrimination, which is unconstitutional in any type of forum....

153. The Due Process Clause of the Fourteenth Amendment prohibits the government from censoring speech pursuant to vague standards that grant enforcement officials unbridled discretion.

154. The arbitrary determination by school officials of what is and is not “hate speech,” what speech “targets” a specific group, or what speech is “unacceptable to community standards” violates this norm.

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

North Carolina Legislature Overrides Veto of Abortion Law

 The North Carolina legislature last night voted to override Governor Roy Cooper's veto of Senate Bill 20 which imposes elaborate new restrictions on abortions in the state, summarized in this prior posting. 

Reuters reports on the legislature's action.

Air Force Announces Portal To Process Religious Exemption Requests

The U.S. Air Force announced last week that it has developed a Portal to streamline requests for religious accommodation filed by Air Force, Space Force, and civilian employees, as well as appeals from denials of requests. According to an Air Force official:

The service has seen an exponential increase in religious accommodation requests, and the portal offers a systemic automated solution to ensure our servicemembers and civilians are assisted in the most expeditious manner going forward.

The Air Force has been embroiled in litigation filed by service members seeking religious exemptions from the military's COVID vaccine mandate. (See prior posting.)

9th Circuit Remands Employees' Challenge to Vaccine Exemption Denial

In Keene v. City and County of San Francisco, (9th Cir., May 15, 2023), the U.S. 9th Circuit Court of Appeals reversed and remanded a decision from a California federal district court that denied preliminary relief to two city and county employees who were denied religious exemptions from CCSF's COVID vaccine mandate. The appeals court said in part:

The district court erroneously concluded that “[n]either Plaintiff has demonstrated that their religious beliefs are sincere or that those beliefs conflict with receiving the COVID-19 vaccine...."...

Beyond the district court’s factual error, its decision reflects a misunderstanding of Title VII law. A religious belief need not be consistent or rational to be protected under Title VII, and an assertion of a sincere religious belief is generally accepted.... 

The district court did not explain its conclusion that Appellants had not established sincerity beyond stating that there are “no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines . . . are . . . derived from murdered babies” and generally stating that personal preferences are not sincere religious beliefs. And CCSF offered no argument or evidence that Appellants’ beliefs are insincere. Absent any indication otherwise, it seems that the district court erroneously held that Appellants had not asserted sincere religious beliefs because their beliefs were not scientifically accurate. Remand is warranted for the district court to reevaluate Appellants’ claims applying the proper failure-to-accommodate inquiry....

Courthouse News Service reports on the decision.

DOE Updates Guidance on Prayer In Public Schools

Yesterday, the U.S. Department of Education issued an updated Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools. The Guidance document points out that the Elementary and Secondary Education Act requires the Secretary of Education to issue such guidance to state and local education agencies, and local agencies must certify that they do not have policies that deny participation in constitutionally protected prayer. The Guidance reads in part:

Teachers, school administrators, and other school employees may not encourage or discourage private prayer or other religious activity.

The Constitution does not, however, prohibit school employees themselves from engaging in private prayer during the workday where they are not acting in their official capacities and where their prayer does not result in any coercion of students. Before school or during breaks, for instance, teachers may meet with other teachers for prayer or religious study to the same extent that they may engage in other conversation or nonreligious activities. School employees may also engage in private religious expression or brief personal religious observance during such times, subject to the same neutral rules the school applies to other private conduct by its employees. Employees engaging in such expression or observance may not, however, compel, coerce, persuade, or encourage students to join in the employee's prayer or other religious activity, and a school may take reasonable measures to ensure that students are not pressured or encouraged to join in the private prayer of their teachers or coaches.

Americans United issued a press release welcoming the updated Guidance.

State Department Releases 2022 Report on International Religious Freedom

Yesterday the U.S. State Department released its 2022 Report on International Religious Freedom (full text). The Report describes the status of religious freedom in 196 countries. The Report is submitted annually to Congress in compliance with the International Religious Freedom Act. Secretary of State Blinken, announcing release of the report, said in part:

Over the past year we’ve seen real progress in some parts of the world on expanding religious freedom as people demanded their rights.  Civil society groups pushed for change and governments listened.

Unfortunately, the report also documents the continuation and, in some instances, the rise of very troubling trends.  Governments in many parts of the world continue to target religious minorities using a host of methods, including torture, beatings, unlawful surveillance, and so-called re-education camps.  They also continued to engage in other forms of discrimination on the basis of faith or lack of faith, like excluding religious minorities from certain professions or forcing them to work during times of religious observance.

Governments use anti-conversion, blasphemy, apostasy laws, which ban the act of leaving a faith, to justify harassment against those who don’t follow their particular interpretation of a theology, often weaponizing those laws against humanists, atheists, and LGBTQI+ individuals....

In a press release, the U.S. Commission on International Religious Freedom reacted to the State Department's Report.

Recent Articles of Interest

From SSRN:

• Raphaële Xenidis, Intersectionality from Critique to Practice: Towards An Intersectional Discrimination Test in the Context of ‘Neutral Dress Codes’, (European Equality Law Review 2/2022).
• Brian Hutler, Public Health Deference: Rethinking the Judicial Enforcement of Constitutional Rights during a Pandemic, (Syracuse Law Review, Vol. 73, No. 1, 2023).
• Bruno Santos Cunha & Renato Saeger Magalhaes Costa, Brazilian Supreme Court to Judge whether Jehovah’S Witnesses May Refuse Blood Transfusions Occasionally Needed after or during Surgical Procedures,( 2023).
• Leonardo Madio & Francesco Principe, Who Supports Liberal Policies? A Tale of Two Referendums in Italy (May 10, 2023).
• Naeem Rind & Danish Ahmed Siddiqui, A Comparative Analysis of Jurisprudence: Common, Muslim, Jewish and Civil Laws, (April 28, 2023).
• Michael P. Moreland, Response: Contingency and Contestation in Christianity and Liberalism, (Notre Dame Law Review, Forthcoming).
• Michael P., Moreland, Germaneness and Religious Liberty, (Notre Dame Law Review, Forthcoming).
• Michael P. Moreland, Christianity and Torts, (Forthcoming in John Witte, Jr. and Rafael Domingo, eds., Oxford Handbook on Christianity and Law (Oxford University Press, 2023)).
• Jamie R. Abrams, Re-evaluating Regional Law Reform Strategies After Dobbs, (ConLawNOW, Vol. 14, 2023).
• Hisham Ul Wahab Puthiyakath, Islamophobia: Discourse, Recognition and Implications, (March 30, 2023).

From SmartCILP:

• Dennis P. Petri & Marlies Glasius, Vulnerability and Active Religious Behavior: Christians and Crime Syndicates in Mexico, 44 Human Rights Quarterly 514-536 (2022).
• Frank S. Ravitch, Contextual Benefits of a Neutral Principles Approach to Religious Property Disputes, 2021 Michigan State Law Review 1347-1376 (2021).
• Anita Bernstein, Without Religion, W(h)ither Family Law?, 2021 Michigan State Law Review 1489-1528 (2021).

North Carolina Governor Vetoes New Abortion Restrictions

Yesterday, North Carolina Governor Roy Cooper vetoed (veto message) (press release) Senate Bill 20 (full text) which imposed numerous new restrictions on abortions.  According to the General Asembly Conference Committee's summary of the bill:

Part I of the Conference Committee Substitute to Senate Bill 20 would repeal and replace the current abortion law in North Carolina. Under the new law, abortion would be permitted through the first twelve weeks of pregnancy for any reason, through the twentieth week of pregnancy if the pregnancy resulted from rape or incest, through the twenty-fourth week of pregnancy if there is a life-limiting anomaly in the unborn child, and at any time if there is a medical emergency for the pregnant woman. Part I would also criminalize the provision or advertising of abortion-inducing drugs in certain circumstances, prohibit eugenic abortions, and establish informed consent and reporting requirements for abortion.

NPR reports on the governor's action, saying that now a veto override battle will take place in the legislature.

Montana Supreme Court: State Constitution Protects Abortion Care by Advance Practice Registered Nurses

In Weems v. State of Montana, (MT Sup. Ct., May 12, 2023), the Montana Supreme Court held that a 2005 Montana statute that bars Advance Practice Registered Nurses from delivering abortion care violates the Montana Constitution.  The court summarized its decision:

Article II, Section 10, of the Montana Constitution guarantees a woman a fundamental right of privacy to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk. The State has failed to meet its burden of demonstrating that APRN-FNPs and APRN-CNMs providing abortion care present a medically acknowledged, bona fide health risk. The State has failed to present any evidence that demonstrates abortions performed by APRNs include more risk than those provided by physicians or PAs. The State has failed to identify any reason why APRNs should be restricted from providing abortions, and thus failed to articulate a medically acknowledged, bona fide health risk. The District Court correctly determined that no genuine dispute of material fact exists regarding the safety and efficacy of APRNs providing early abortion care. Accordingly, § 50-20-109(1)(a), MCA, is an unconstitutional interference with a woman’s right of privacy to seek medical care from a qualified provider of her choice.

Law & Crime reports on the decision.

New Florida Law Protects Conscience Rights of Health Care Providers

 Yesterday Florida Governor Ron DeSantis signed Senate Bill 1580 (full text) which protects conscience rights of health care providers and insurers. The law provides in part:

It is the intent of the Legislature to provide the right of medical conscience for health care providers and payors to ensure they can care for patients in a manner consistent with their moral, ethical, and religious convictions. Further, it is the intent of the Legislature that licensed health care providers and payors be free from threat of discrimination for providing conscience-based health care....

 A health care provider or health care payor has the right to opt out of participation in or payment for any health care service on the basis of a conscience-based objection....

A board ... may not take disciplinary action against a health care practitioner’s license or deny a license to an individual solely because the individual has spoken or written publicly about a health care service or public policy, including, but not limited to, speech through the use of a social media platform ... provided that the individual is not using such speech or written communication to provide medical advice or treatment to a specific patient or patients....

Pensacola News Journal reports on the new law.

8th Circuit Upholds Constitutionality of Federal Ban on Damaging Religious Real Property

In United States v. Hari, (8th Cir., May 10, 2023), the U.S. 8th Circuit Court of Appeals upheld the constitutionality under the Commerce Clause of 18 USC §247.  The statute bars damaging religious real property because of the religious character of the property, and bars obstructing a person's enjoyment of free exercise of religion by force or threat of force against them or against religious real property, when the person's conduct affects interstate commerce. The court said in part:

Here, the statute specifically requires that the offense “affects interstate or foreign commerce.” This “ensures, through a case-by-case inquiry, that each defendant’s [offense] affected interstate commerce.”

The court also upheld defendant's conviction under 18 USC § 924(c)(1) for carrying or using a destructive device during and in relation to any crime of violence.  The conduct for which defendant was convicted was described by the court:

In August 2017, Emily Hari loaded a pickup truck with a 20 pound pipe bomb, two assault rifles, and a sledgehammer and drove with two confederates from Illinois to the Dar al-Farooq Islamic Center in Bloomington, Minnesota. The trio smashed a window of the Imam’s office before the parishioners’ dawn prayer and threw gasoline, diesel fuel, and the pipe bomb inside. The bomb detonated. No one was injured; the building suffered fire and smoke damage. Hari and the others fled.

Alabama Law Protects Identity of Donors, Supporters, Volunteers and Members of Non-Profits

Yesterday, Alabama Governor Kay Ivey signed S-59, The Personal Privacy Protection Act (full text). The new law prohibits any governmental agency from requiring disclosure of, or from releasing information about, the identity any member. supporter, volunteer, or donor of a non-profit organization.  It also bars requiring any current or prospective contractor or grantee to disclose non-profits to which it has donated or provided support. The Act contains a number of exceptions, including required disclosures under campaign finance laws.  Indiana has recently enacted a similar statute. (See prior posting.) ADF issued a press release announcing the signing of the law.

European Court: Finland May Require Jehovah's Witnesses to Obtain Consent Before Taking Notes on Those They Visit

In Jehovah's Witnesses v. Finland, (ECHR, May 9, 2023), the European Court of Human Rights held that Finland's data collection regulations did not infringe the religious freedom protected by Article 9 of the European Convention on Human Rights of Jehovah's Witnesses who proselytized door-to-door.  At issue was notes taken by Jehovah's Witnesses in the course of their door-to-door preaching identifying those who did not wish to be visited again, and those who are deaf or spoke a foreign language so Witnesses who knew sign language or the relevant foreign language could visit in the future. Finland's Data Protection Ombudsman had held that this personal data could not be collected without the explicit consent of the person in question. Upholding that determination, the court said in part:

The relevant order had been based on the Personal Data Act in force at the time of the proceedings. That law was formulated with sufficient precision and aimed to protect the rights and freedoms of others. The Supreme Administrative Court had taken into account the fact that individuals whose personal data had been collected were entitled to trust that their data were not collected without their knowledge and consent. They also had a legitimate expectation, guaranteed by law, that they would have access to the data and, if necessary, the right to require that the data be corrected or deleted. Ensuring the rights of data subjects therefore inspired confidence rather than distrust in the applicant community’s activities. The consent requirement and the fact that it did not interfere with the core areas of the applicant community’s freedom of religion or freedom of expression had thus been proportionate.

Courthouse News Service reports on the decision.

EEOC Sues IHOP Restaurant for Failing to Accommodate Cook's Religious Beliefs

The EEOC announced yesterday that it has filed a Title VII religious discrimination suit in a North Carolina federal district court against a Charlotte, North Carolina IHOP restaurant operated by Suncakes, LLC.  The EEOC charged that the restaurant failed to reasonably accommodate an employee's religious exercise:

... Suncakes hired a cook ... in January 2021. At the time of hire, the employee requested and was granted a religious accommodation of not working on Sundays to honor his religious observances. After a change in management in April 2021, the new general manager expressed hostility toward the accommodation and required the employee to work on Sunday, April 25 and Sunday, May 9. After the May 9 shift, the employee told the general manager he would not be working the following Sunday. The general manager refused to allow the employee to work his next scheduled shift and fired him. The manager then made comments to other employees such as, “religion should not take precedence over [the employee’s] job”” and that the employee “thinks it is more important to go to church than to pay his bills.”