Wednesday, March 27, 2024

DOJ Sues California Prisons for Failing to Accommodate Officers' Religious Beard Requirements

The Department of Justice this week filed suit in a California federal district court seeking to enjoin the California correctional system from requiring its peace officers to be clean shaven in contravention of their sincerely held religious beliefs.  The problem arose for Muslim and Sikh correctional employees when they were required to meet the conditions for wearing tight-fitting respirators.  The complaint (full text) in United States v. California Department of Corrections and Rehabilitation, (ED CA, filed 3/25/2024), contends that the Department of Corrections has not attempted to accommodate the peace officers' concerns by offering them positions in the Department that do not require wearing of respirators or by offering alternative respirators that could be worn with beards.  The complaint alleges in part:

The Charging Parties allege that CDCR has discriminated against them on the basis of religion in violation of Title VII, 42 U.S.C. § 2000e(a)(2), by: a. Failing to provide a religious accommodation;  b. failing to adequately engage in the interactive process with the Charging Parties, including by failing to make good faith efforts to consider whether alternative accommodations will eliminate the conflict between the Charging Parties’ religious beliefs and CDCR’s clean  shaven policy; and c. failing to demonstrate that implementing the alternative accommodations proposed by the Charging Parties would pose an undue hardship.

The Department of Justice issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.

New Idaho Law Bars Adverse Action Because of Religious Conduct in Adoption, Foster Care, Licensing and State Contracting

On Monday, Idaho Governor Brad Little signed House Bill 578 (full text) which prohibits state and local governments from treating adversely any adoption or foster care agency that declines to provide services because of a sincerely held religious belief. The new law also provides:

The state government shall not take any discriminatory action against a person who the state grants custody of a foster or adoptive child wholly or partially on the basis that the person guides, instructs, or raises a child, or intends to guide, instruct, or raise a child, based on or in a manner consistent with a sincerely held religious belief. The state government may consider whether a person shares the same religious or faith tradition as a foster or adoptive child when considering placement of the child in order to prioritize placement with a person of the same religious or faith tradition.

The new law goes on to provide that the state cannot deny licensing or the award of a contract to a person because the person believes, maintains policies and procedures, or acts in accordance with a sincerely held religious belief. ADF issued a press release announcing the governor's signing of the bill.

California's Removal of Personal Belief Exemption from School Immunization Requirement Is Upheld

 In Royce v. Bonta, (SD CA, March 25, 2024), a California federal district court upheld the constitutionality of a law enacted by California in response to a 2015 measles outbreak. The law removed the personal belief exemption, but retained the medical exemption, from the requirement that school children enrolled in public and private schools be immunized against nine specific diseases.  The law also gives immigrant and homeless children a grace period in which to prove compliance with the immunization requirement. The court rejected parents free exercise challenge to the law, concluding that the law is neutral and generally applicable, saying in part:

In considering California’s interest in the health and safety of students and the public at large, the risk posed by SB 277’s enumerated exemptions does not qualify as comparable to the risk posed by a personal belief exemption....  Accordingly, SB 277 is generally applicable....

There is a legitimate State interest in protecting the health and safety of students and the public at large, and SB 277’s repeal of California’s prior personal belief exemption is rationally related to furthering that interest.  Because Plaintiffs fail to allege facts from which an inference can be drawn to hold otherwise, SB 277 survives rational basis review.  Accordingly, Plaintiffs’ Free Exercise claim fails as a matter of law.

Tuesday, March 26, 2024

Supreme Court Hears Oral ArgumentsToday On Abortion Pill Restrictions

 The U.S. Supreme Court is hearing oral arguments today in two related cases-- FDA v. Alliance for Hippocratic Medicine and Danco Laboratories, LLC v. Alliance for Hippocratic Medicine.  At issue is the FDA's actions in 2016 and 2021 regarding the administration and distribution of the abortion pill mifepristone. (See prior posting.) Links to briefs and pleadings in the cases can be found on the SCOTUSblog case pages (Danco, Alliance).  Live audio broadcast of the arguments beginning at 10:00 AM EDT can be accessed here. SCOTUS blog has further background on the issues being argued today. This posting will be updated to link to the transcript and recording of the arguments when they become available later today.

UPDATE: Here is a link to the transcript and audio of this morning's oral arguments. NBC News reports on the oral arguments.

Interference With Contractual Relationship Created by Jewish Marriage Contract Is Not Actionable

In S.E. v. Edelstein, (OH App., March 25, 2024), an Ohio state appellate court affirmed the dismissal of a suit for intentional interference with a contractual relationship brought by an Orthodox Jewish wife (Kimberly) against her father-in-law (Max) who disapproved of her marriage to his son (Elliott). The court held that the suit essentially sought damages for alienation of affections and breach of promise to marry which were barred as causes of action by Ohio Revised Code 2305.29. The court said in part:

In the complaint, it was alleged that Max had intentionally interfered with the ketubah, the supposed "contract" at issue in this case, by engaging in a continuous "campaign to undermine" Kimberly and Eliott's contractual relationship (i.e., their marriage) for nearly 20 years.  The complaint alleged that this included Max being "emotionally abusive" towards Kimberly, as well as Max making "negative and derogatory statements" about Kimberly.  This, according to the complaint, included Max criticizing Kimberly's "status as a convert to Judaism" and by frequently stating that Kimberly's and Eliott's children "were not Jewish."  The complaint also alleged that Max, "with the intent to destroy the contractual relationship between" Kimberly and Eliott, routinely disparaged Kimberly to "persuade" Eliott to "terminate his contractual relationship with [her]."...

[T]he complaint raises amatory claims of a breach of a promise to marry and alienation of affections against Max couched in terms of an intentional interference with a contractual relationship ..., loss of consortium... , loss of parental consortium ..., intentional infliction of emotional distress ...,, and malice.....  As stated previously, pursuant to R.C. 2305.29, neither Max, nor any other person, could be held liable in civil damages.... for any breach of a promise to marry or alienation of affection.  This holds true despite those claims being pled within the complaint in other, generally more suitable terms....   

Just as a rose is a rose by any other name, a non-actionable claim does not become actionable simply by masquerading as one that is....

Denial of Religious Exemption from Vaccine Mandate Did Not Violate Title VII or Constitution

In White v. University of Washington, (WD WA, March 22, 2024), a Washington federal district court rejected Title VII as well as constitutional challenges brought by a healthcare worker who was denied a religious exemption from Washington's Covid vaccine mandate. In discussing Plaintiff's Title VII claim of failure to reasonably accommodate, the court said in part:

With respect to COVID-19 in particular, guidance from the EEOC indicates that “increasing ‘the risk of the spread of COVID-19 to other employees or to the public’” is a ground for finding undue hardship on employers asked to grant religious exemptions to COVID-19 vaccination mandates....

 The Ninth Circuit also has found on a motion to dismiss that undue hardship is established as a matter of law where a religious accommodation would require an employer to violate state or federal law.

The court also rejected plaintiff's due process, equal protection and free exercise claims, saying in part:

Plaintiff has made no allegations regarding what her religious beliefs are, let alone how they were burdened by Defendants’ adherence to Proclamation 21-14.

Denial of Church's Property Tax Exemption Did Not Violate RLUIPA

In Sandstrom v. Wendell, (WD NY, March 22, 2024), a New York federal district court rejected RLUIPA challenges to local tax officials' denial of a tax exemptions for two properties owned and converted to religious use by the Church of the Holy Redemption. Plaintiff, pastor of the church, argued that his religious exercise was substantially burdened by the denial. Tax officials contended that the Church did not qualify for a tax exemption. The court held in part:

[D]espite Plaintiff’s attempts to recharacterize his claims as amounting to a zoning challenge, ... Plaintiff has not plausibly alleged any burden on his religious beliefs apart from having to apply for tax-exempt status or being required to pay taxes.  At its core, Plaintiff is seeking a federal court ruling on a local tax matter, which is specifically circumscribed by the Tax Injunction Act and principles of comity....

Here, Plaintiff has not alleged that he submitted a meaningful application to challenge the controversy or gave Defendants an opportunity to commit to a position intended to be “final.”  Plaintiff does not allege that he completed the necessary requirements to challenge the properties’ status, commenced any appeal of the determination, or that such efforts would be futile, weighing against a finding that the claims are ripe....

Monday, March 25, 2024

Religious Marriage Without Marriage License and Later Annulled by Religious Court Is Still Recognized By New York

 In T.I. v. R.I., (NY Sup Ct Kings Cty, March 20, 2024), a New York state trial court held that the state would recognize a couple's marriage that was performed in a Jewish religious ceremony even though the couple did not obtain a civil marriage license and the marriage was annulled eight years later by a religious tribunal.  In a long-running dispute between the parties, there had been a prior divorce action which the parties discontinued and there had been protection orders in favor of the wife against the husband issued by the Family Court and Criminal Court. Now the husband, claiming that no marriage between them existed any longer, sought to have the wife's divorce action dismissed so that the court could not issue orders for him to pay child support, spousal maintenance or equitable distribution of property. According to the court:

The husband contends that the rabbinical court invalidated the parties' religious marriage on two Jewish religious concepts: 1) based upon "concealment" because the wife did not disclose her alleged mental health history to him prior to the religious solemnization ceremony; and 2) because the person who conducted the solemnization ceremony was not, although unknown to the parties, authorized to do so by at least some portion of the religious community....

Nothing related to the wife's request for a civil divorce requires this Court to address or assess the religious issues that the husband brought before the rabbinical court or that may have been part of the rabbinical court's determination and, as such, the husband's theory that the issue of whether the wife can seek a divorce of any marriage recognized by the State of New York is not prohibited by the First Amendment. Here, the determination of whether a marriage recognized by the State of New York exists between the parties separate and apart from any religious marriage rests not upon religious doctrine but upon neutral principles of law.

Any religious determinations and any ramification of religious doctrine made by the rabbinical court as to the parties' religious marriage are separate and apart from the Supreme Court's jurisdiction over whether, based on neutral principles of law, there exists here a marriage recognized by the State between the parties....

Recent Articles of Interest

From SSRN:

From SmartCILP:

Saturday, March 23, 2024

Court Enforces Arbitration Award Requiring Husband to Furnish Jewish Bill of Divorce

In S.I. v. M.I., (NJ App., March 22, 2024), a New Jersey state appellate court held that a husband was required to comply with an arbitration agreement he had signed that required him to accept Rabbi David Twersky's decision on his obligation to give his wife a get (Jewish bill of divorce). The rabbi ordered giving of a get, but the husband refused to comply. The trial court declined to confirm the arbitration award because it concluded that it could not order a party to carry out a religious act.  The court of appeals reversed, saying in part:

Here, confirmation of the award can be granted under neutral principles of law and without interpretation of religious doctrine.  We therefore conclude the Establishment Clause is not violated because the parties' arbitration agreement regarding a get serves the "purpose of enforcing the parties' contractual obligations" and "encouraging divorce litigants to resolve disputes by negotiating and entering" into marital agreements....

Additionally, enforcement does not infringe on the Free Exercise Clause as the parties voluntarily entered into the MOU arbitration provision and agreement....

Confirmation of the award strictly required a determination of defendant's contractual obligation.

Friday, March 22, 2024

New Indiana Law Strengthens Parents' Right to Have Children Attend Released-Time Religious Instruction

Last week, Indiana Governor Eric Holcomb signed House Bill 1137 (full text) which strengthens parents' rights to have their children attend up to two hours per week of released-time religious instruction. Previously Indiana law permitted, but did not require, a public school to honor parents' requests for their children to attend up to two hours per week of religious instruction provided by a church or other religious educational organization. As amended, the law now requires the principal to allow attendance at up to two hours of religious instruction when a parent has requested it. The law calls for the principal, the parent and the religious school to work cooperatively in finding the least disruptive time for the religious instruction. ADF issued a press release on the new legislation.

7th Circuit: Refusal to Dismiss Under Church Autonomy Doctrine Is Not Appealable Interlocutory Order

 In Garrick v. Moody Bible Institute, (7th Cir., March 18, 2024), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision, held that that an order refusing to dismiss a Title VII employment discrimination case under the church autonomy doctrine is not an appealable interlocutory order. The suit was brought by a former communications instructor who claimed sex discrimination.  According to the Bible Institute, the instructor's firing resulted from her disagreement with the Institute's doctrine that only men should serve as clergy. Plaintiff contended that this was merely a pretext for sex discrimination. In denying appealability, the court said in part:

... Moody’s argument that it will experience irreparable harm without immediate review and reversal of the district court’s order is unavailing. Religious autonomy to shape and control doctrine will not be threatened. Within its discretion to manage discovery, the district court should limit discovery to instances of discriminatory treatment in situations not implicated by Moody’s complementarian beliefs.

Judge Brennan dissented, arguing that the interlocutory dismissal order should be appealable. Americans United issued a press release announcing the decision.

Thursday, March 21, 2024

Satanic Temple Sues School Board Over Discriminatory Rental Fees for Satan Club

The Satanic Temple filed suit this week in a Tennessee federal district court complaining that the Memphis-Shelby County School Board is placing hurdles in the way of its renting space for use by an After-School Satan Club. The complaint (full text) in The Satanic Temple, Inc. v. Shelby County Board of Education, (WD TN, filed 3/19/2024), alleges in part:

160. ... MSCS has demonstrated a widespread custom and practice of unnecessarily delaying approval or denial of the Satanic Temple’s rental applications....

169. ... MSCS is unconstitutionally discriminating against the Satanic Temple on the basis of its disfavored viewpoint and the content of its speech by charging the Temple a discriminatory hourly rental rate for its monthly ASSC meetings and ... an arbitrary and exorbitant security fee while not charging the same rates or security fees to the Good News Club....

170. ... MSCS’s discriminatory actions are ... arising from disagreement with, and hostility toward, the viewpoint and/or content of the Satanic Temple’s speech, as well as hostility towards the Satanic Temple’s religion by school board members, MSCS administrators, MSCS officials, community members and others....

196. The Satanic Temple’s before- and-after school clubs are a vital part of its religiously motivated mission to provide a safe, inclusive, and welcoming club for students whose parents are members of the Satanic Temple, as well as other students who may not feel welcomed or comfortable at other available before- or after-school religious clubs.

197. MSCS’s widespread custom and practice of discriminating against the Satanic Temple and attempting to constructively block and deter the ASSC from meeting ... substantially burdens the Satanic Temple’s exercise of its sincerely held non-theistic religious belief.

Freedom From Religion foundation issued a press release announcing the filing of the lawsuit.

4th Circuit: Inmate's Claim for Religious Diet Should Move Forward

In Pendleton v. Jividen, (4th Cir., March 20, 2024), the U.S. 4th Circuit Court of Appeals held that a West Virginia federal district court should not have dismissed a RLUIPA religious diet claim brought by an inmate who follows the Sufi Original Traditions of Islam. Those Traditions allow him to only eat fruit, vegetables and certain fish. The court said in part:

In 2014 ... prison officials introduced a new diet program for those with religious dietary restrictions. Under that program, a single “religious special diet” is served—one designed to meet the needs of all faiths by following the rules of the most diet-restrictive ones. With all forms of meat off the table, the diet uses soy as its primary protein source....

Although Pendleton’s religious beliefs do not forbid consumption of soy as such, the complaint alleges that Pendleton experiences vomiting, abdominal pain, constipation, and other digestive issues when he does so. And this, the complaint asserts, is of “religious significance” to Pendleton because his inability to properly digest soy renders such foods "Haram" for him....

Defendants insist that Pendleton could obtain a meat-free and soy-free diet by obtaining test results showing he has a medically significant allergy to soy. And, the defendants continue, because Pendleton has refused to submit to allergy testing ... he has not plausibly alleged a substantial burden on his religious practice. That argument fails too. Pendleton need not produce documentation of his alleged soy allergy to survive a motion to dismiss.... Even if Pendleton took an allergy test and that test was negative, it would not eliminate his religiously based objections to eating soy.  For that reason, Pendleton has plausibly alleged a substantial burden on his religious practices, and the district court erred in concluding otherwise.

Christian Food Ministry Sues to End City's Attempts to Close It Down

 Last week, a Yuma County, Arizona Baptist church filed suit in an Arizona federal district court challenging actions the city of San Luis has taken to close down the church's food distribution ministry which it has operated for 23 years. The complaint (full text) in Gethsemani Baptist Church v. City of San Luis, (D AZ, filed 3/13/2024), says that with the election of a new mayor in 2022, the city ended its prior support for the food ministry and used zoning rules to attempt to end its operations. The city contends that the growth of the church's Food Ministry has changed it sufficiently that it may no longer rely on its prior treatment as a legal non-conforming use. The church alleges that the city's actions violate RLUIPA, the Free Exercise Clause, and Arizona's Free Exercise of Religion Act. First Liberty issued a press release announcing the filling of the lawsuit.

Wednesday, March 20, 2024

Montana Supreme Court Says AG Wrongly Rejected Language of Reproductive Rights Initiative

In Montanans Securing Reproductive Rights v. Knudson,(MT Sup. Ct., March 18, 2024), the Montana Supreme Court held that the state Attorney General was incorrect in in concluding that a proposed reproductive rights ballot initiative violates the separate vote requirement of the Montana Constitution. It also held that the Attorney General lacked authority to append a fiscal statement to the initiative. The court ordered the Attorney General to prepare a ballot statement for the initiative and forward it to the Secretary of State. 

Justice McKinnon filed a concurring opinion. Justice Rice filed a dissenting opinion, saying in part:

I believe it is clear that the provisions of CI-14 are not readily understood, have effects that are concealed, and would result in voter confusion this review is designed to prevent.

(See prior related posting.) Montana Free Press reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Indiana Governor Vetoes Antisemitism Bill for Omitting Examples in Widely-Adopted Definition

As previously reported, earlier this month the Indiana legislature passed House Enrolled Act 1002 which would amend the state Education Code to specifically protect against antisemitism in public schools and colleges. The bill adopts the International Holocaust Remembrance Alliance's Working Definition of Antisemitism, but, in a controversial compromise, excludes examples given by IHRA that, among other things, indicate when criticism of Israel amounts to antisemitism. As reported by JNS, that exclusion led Jewish groups to encourage Governor Eric Holcomb to veto the bill, which he did on Monday. His veto message (full text) said in part:

While I applaud the General Assembly's effort to address and define antisemitism, I cannot agree with the outcome. The language that emerged in the final days of the session fails to incorporate the entire International Holocaust Remembrance Alliance ("IHRA") definition and its important contemporary examples. Additionally, the confusing language included in the bill could be read to exclude those examples....

However, I also refuse to leave a void as to Indiana's stance on antisemitism. That is why I am happy to share that I have also signed a proclamation reiterating that Indiana condemns all forms of antisemitism and ensures we join numerous states and countries by supporting the entire IHRA definition with its inextricable examples....

The Governor's lengthy (full text) says in part:

Whereas, the Working Definition provides a clear, comprehensive and non-legally binding definition that can be used to determine contemporary manifestations of antisemitism.... 

The State of Indiana condemns antisemitism and stands in solidarity with the Jewish community in the face of this pernicious and insidious hatred.

While the Proclamation makes clear that its embrace of the IHRA Working Definition includes its examples, the Proclamation makes no explicit mention of criticism of Israel.

Pharmacist Violated Sex Discrimination Ban in Refusing to Fill Prescription for Emergency Contraceptive

 In Anderson v. Aitkin Pharmacy Services, LLC, (MN App., March 18, 2024), a Minnesota state appellate court held that a pharmacist violated the Minnesota Human Rights Act that prohibits intentionally refusing to do business with a person because of the person's sex. The pharmacist refused to dispense plaintiff's prescription for the emergency contraceptive ella because of his conscientious objection to dispensing any medication that prevents the implantation of a fertilized egg. The statute defines sex discrimination as including discrimination because of pregnancy. The court said in part:

Badeaux refused to dispense Anderson’s valid prescription because Badeaux believed she may have been pregnant.  Thus, pregnancy was a substantial causative factor in Badeaux’s refusal to dispense ella....

Badeaux did not assert a constitutional defense in district court and does not argue that the MHRA actually violates his constitutional rights.  Instead, he argues on appeal that the sex-discrimination language in the MHRA should be interpreted to avoid a constitutional conflict.... But we do not apply the constitutional-avoidance canon to a party’s proposed interpretation of a statute if the interpretation is contrary to the plain language of the statute.

The court however refused to reverse the jury's finding that the Pharmacy, as opposed to the individual pharmacist, did not violate the sex discrimination ban. The court said in part:

The evidence shows that Aitkin Pharmacy wanted to fill all valid prescriptions and had a pharmacist on staff who was willing to dispense emergency contraception.  The evidence also shows that, when Badeaux called Anderson on January 21, he communicated both that he was unwilling to dispense ella and that there was another pharmacist scheduled to work who was willing to dispense her prescription.... [T]here is a reasonable theory of the evidence to support the verdict that Aitkin Pharmacy did not intentionally refuse to do business with Anderson...

The court also concluded that, because of erroneous jury instructions, plaintiff should have been granted a new trial on her claim that the pharmacy violated the state's public accommodation law that bans denial of the full and equal enjoyment of goods and services in places of public accommodation because of sex. Courthouse News Service reports on the decision. [Thanks to Thomas Rutledge for the lead.]