Key Cases
COVID-19
Vaccine Exemption Policy Requiring Citation to Official Doctrine Violates First Amendment
Madison Houghton and Nathan A. Adams IV
In Does 1-11 v. Bd. of Regents of Univ. of Colorado, 100 F. 4th 1251 (10th Cir. 2024), former employees and students sought a religious exemption to the University of Colorado's COVID-19 vaccine mandate. Initially, the university's Anschutz Campus allowed students and employees to submit a form attesting to their religious beliefs to become exempt. Then, the university amended its policy to require evidence of an official doctrine of an organized religion, as announced by the leaders of that religion, teaching that all immunizations are forbidden. The university fired the plaintiff employees or took other adverse action against them when they did not qualify for a religious exemption under this policy. The plaintiffs threatened suit, whereupon the university announced a new policy for employees allowing a religious exemption as long as it did not unduly burden the health and safety of others on campus. The plaintiffs filed suit under the Free Exercise Clause and Establishment Clause. The U.S. District Court for the District of Colorado denied the plaintiffs' motions for preliminary injunction on grounds of mootness, even after the university declined to exempt any of the plaintiffs under the second amended policy and because it considered the exemption policy neutral and generally applicable.
In a partially split opinion, the U.S. Court of Appeals for the Tenth Circuit agreed that no student has standing to seek an injunction, but reversed the district court's ruling as to former employees. The court of appeals ruled the first amended exemption policy "categorically unconstitutional" and likely motivated by animus toward certain religions, resulting in "real-world discrimination among religions." The university concluded that Christian Scientists and Jehovah's Witnesses qualified for exemption, but not Roman Catholics, Eastern Orthodox adherents, Evangelical Christians, nondenominational Protestants or those who did not specify whether they were affiliated with a particular religion. The court of appeals ruled that the second amended policy, tailored as it was to reach the same results as the first, also was motivated by religious animus and favored secular exemptions over religious ones. The court of appeals began its decision as follows: "A government employer may not punish some employees, but not others, for the same activity, due only to differences in the employees' religious beliefs. Likewise, the government may not test the sincerity of an employee's religious beliefs by judging whether his or her beliefs are doctrinally coherent or legitimate in the eyes of the government. Nor may a government employer discriminate against religion by implementing policies that exempt employees for secular reasons more readily than religious ones." The court of appeals concluded that the university's religious exemption policies could not survive strict scrutiny. In partial dissent, Judge David Ebel agreed that the first amended exemption policy was likely unconstitutional and should be enjoined, but differed over whether the policy was adopted out of religious animus.
Claim Stated Under Title VII After Termination for Refusing Vaccination
Ryan Martin Kocse
In Phillips v. Rector & Visitors of the University of Virginia, No. 3:22-cv-00075, 2024 WL 1201639 (W.D. Va. March 20, 2024), the U.S. District Court for the Western District of Virginia ruled on the defendants' motions to dismiss a complaint brought by former University of Virginia (UVA) Health employees who had been terminated for refusing to be vaccinated for COVID-19 on religious grounds. The plaintiffs, 11 former UVA Health employees, sued the Rector & Visitors of UVA, as well as various members of the administration in their official capacities (and some in their personal capacities), alleging violations of the Free Exercise and Establishment Clauses of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the free exercise and establishment rights guaranteed in Article I Section 16 of the Virginia Constitution and Title VII of the Civil Rights Act of 1964. Whereas the court dismissed most of the plaintiffs' claims for a variety of reasons, it refused to dismiss some of the plaintiffs' Title VII claims, holding that those plaintiffs sufficiently alleged that certain defendants, acting in their official capacities, failed to accommodate those plaintiffs' protected religious beliefs.
Free Exercise
Transfer of Federal Land Sacred to Apache for Mining Not a Free Exercise or RFRA Violation
Nathan A. Adams IV
In Apache Stronghold v. United States, 101 F 4th 1036 (9th Cir. 2024), the U.S. Court of Appeals for the Ninth Circuit ruled en banc in a split opinion that it was not a violation of the Free Exercise Clause, Religious Freedom Restoration Act (RFRA) or an 1852 treaty between the U.S. and the Apache Tribe for the U.S. to transfer per federal statute federally owned land that was of great spiritual value to Western Apache Indians to a copper mining company for "panel caving." Panel caving entails digging a network of shafts and tunnels below the ore body and detonating explosives to fracture the ore, which causes the ground above to collapse inward, leaving a large surface crater likely to span 1.8 miles in diameter and a depression between 800 and 1,115 feet deep. The court of appeals affirmed denial of a preliminary injunction that would have stopped the land transfer. The Western Apache Indians showed that for at least a millennium they believed that federally owned land known as Oak Flat was a "sacred place" that serves as a "direct corridor" to "speak to [their] creator." Members reported that they "cannot have this spiritual connection with the land anywhere else on Earth." Nevertheless, Congress passed, and the president signed, the Carl Levin and Howard P. "Buck" McKeon National Defense Authorization Act for Fiscal Year 2015, containing a version of the "Southeast Arizona Land Exchange and Conservation Act," which directed an exchange of land between Resolution Copper and the U.S., including transfer of Oak Flat and the surrounding area.
One en banc majority of the court of appeals determined that the transfer does not violate the rights of members of the San Carlos Apache Tribe under the Free Exercise Clause under the reasoning of Lyng v. Nw. Indian Cemetery Protective Ass'n, 108 S.Ct. 1319 (1988). Under Lyng, a disposition of government real property does not impose a substantial burden on religious exercise when it 1) has no tendency to coerce individuals into acting contrary to their religious beliefs, 2) does not discriminate against religious adherents, 3) does not penalize them, and 4) does not deny them an equal share of the rights, benefits and privileges enjoyed by other citizens. The court also determined that RFRA subsumes rather than overrides Lyng and, thus, the transfer also does not violate the rights of members of the San Carlos Apache Tribe. Another en banc majority of the court of appeals decided that RFRA and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) must be interpreted uniformly. This majority determined that preventing access to religious exercise is an example of a substantial burden. Last, the court determined that any trust obligation of the federal government arising under the 1852 treaty between the U.S. and the Apache Tribe to preserve traditional Apache religious practices on its historic homeland was abrogated by Congress in the statute authorizing the challenged land transfer.
University Lacked Standing to Challenge AG Investigation, But Stated Claim Against WLAD
Madison Houghton
In Seattle Pac. Univ. v. Ferguson, No. 22-35986, 2024 WL 2873376 (9th Cir. June 7, 2024), a private religious university, Seattle Pacific University (SPU), brought action against Washington Attorney General (AG) Robert Ferguson, alleging that the enforcement of the Washington Law Against Discrimination (WLAD) violated the First Amendment. Specifically, SPU sued for retaliation, interference with church autonomy, selective enforcement of WLAD and a denominational preference. The U.S. District Court for the Western District of Washington dismissed the action, and then the U.S. Court of Appeals for the Ninth Circuit affirmed in part and reversed in part. The AG received "hundreds of complaints" against SPU related to its policy prohibiting employees from engaging in same-sex intercourse and marriage. Consequently, the AG began an investigation of SPU under the WLAD and requested documents related to employment policies, employee complaints and employee job descriptions. Rather than tender the documents, SPU sued, asserting pre-enforcement claims challenging the impending enforcement of the WLAD and retrospective claims challenging the AG's investigation. The court of appeals affirmed in part and reversed in part the U.S. District Court for the Western District of Washington's dismissal of the lawsuit. The court of appeals agreed with the district court that the AG's investigation was not an injury in fact for standing purposes sufficient to assert SPU's retrospective claims, but disagreed with the district court that SPU was without standing to bring its prospective pre-enforcement claims. Furthermore, the court of appeals determined that Younger abstention was not warranted and remanded the lawsuit to the district court with instructions to consider the ripeness of the claims.
Churches Lack Standing to Challenge California Child Day Care Facilities Act
Keiana René Wilkerson
In Foothills Christian Ministries v. Johnson, No. 22-cv-0950-BAS-DLL, 2024 WL 2306282 (S.D. Cal. May 20, 2024), the U.S. District Court for the Southern District of California concluded that the plaintiffs' churches lacked standing to challenge state licensing regulations for the opening of preschools because they did not demonstrate that the regulations caused foreseeable harm to or infringement of their faith-based practices or beliefs. The plaintiffs, churches that aimed to open or reopen preschools, challenged the licensing requirements of the California Child Day Care Facilities Act as violating their rights under procedural due process, the Establishment Clause, the Free Exercise Clause and the Free Speech Clause. The plaintiffs contended that: 1) the act's requirement that schools grant "personal religious autonomy" to enrolled students infringed upon the plaintiff's religious practice requiring student mandatory attendance at religious events; 2) the California Department of Social Services impermissibly violated the ministerial exception doctrine by interfering with the plaintiffs' religious practice of deferring to parents' healthcare decisions regarding their children; 3) the act violated the Establishment Clause and the ministerial exception doctrine by exempting five entities, two of which were religious organizations, from licensing requirements when the entities were acting as recreation programs; 4) the act violated due process by imposing unconstitutional conditions as a requirement of licensure that would require the plaintiffs to waive several constitutional rights; and 5) the act violated the plaintiffs' free speech rights by forcing them to include a notice to parents that attendance at religious services should be voluntary and by forcing the plaintiffs to communicate a pro-mask wearing curriculum against their wishes.
The U.S. District Court for the Southern District of California concluded that the plaintiff churches lacked standing to challenge the act under the numerous causes of action the plaintiffs brought. The court held that the plaintiffs' claims related to past injury were not suitable for the requested injunctive or declaratory relief without evidence that a similar injury could arise in the foreseeable future. It also found that the plaintiffs lacked standing to challenge the licensure requirements because they did not articulate facts showing that the act conflicted with their faith-based commitment to administer uniform religious education. Similarly, the court held that there was no credible threat of enforcement against the plaintiffs related to the requirement that children be able optionally to attend religious services. The court additionally concluded that the plaintiffs had not shown a credible threat that the act's requirement of posting signs would be enforced against it, even though the plaintiffs had demonstrated that the signs contravened their religious beliefs and that posting the signs was required by law. Though the court concluded that the plaintiffs established standing under their Establishment Clause and due process claims, the court nonetheless held that these claims must be dismissed because the plaintiffs failed to allege any facts demonstrating that the act violated historical practices and understandings by exempting certain religious organizations and nonreligious organizations from operating without licensure, and because the plaintiffs failed to allege that a legally protected interest was at issue.
Church Challenges Law Barring Religious, Sexual Orientation and Gender Identity Discrimination
Ryan Martin Kocse
In Crosspoint Church v. Makin, No. 1:23-cv-00146-JAW, 2024 WL 810033 (D. Me. Feb. 27, 2024), the plaintiff, which operated a religious school, sued the state's education commissioner and human rights commissioners, alleging that the state's educational and employment antidiscrimination laws that penalized discrimination on the basis of religion, sexual orientation and gender identity effectively excluded it from participating in the state's school tuition program in violation of the Free Exercise, Establishment and Free Speech clauses of the U.S. Constitution. The plaintiff sought a preliminary injunction preventing enforcement of the statutory provisions at issue. The defendants moved to dismiss on the grounds that the church's pre-enforcement challenge was not ripe.
The U.S. District Court for the District of Maine denied both motions. While the court held that the plaintiff's pre-enforcement challenge was ripe for review and thus refused to dismiss the complaint, it found that the plaintiff failed to demonstrate a likelihood of success on the merits on its Free Exercise Clause challenge. The court determined that the statutory provisions at issue, even though they "burdened [the plaintiff's] religious exercise," were permissible as "neutral, generally applicable [laws] ... rationally related to a legitimate government interest." On the plaintiff's Free Speech Clause claim, the court held that the challenged statutory provisions limited conduct, not speech, and therefore did not infringe on the plaintiff's right to free expression.
Process for Electing School Board's Student Member Did Not Violate Free Exercise Clause
Ryan Martin Kocse
In Kim v. Board of Education of Howard County, 93 F.4th 733 (4th Cir. 2024), parents of public and private school students filed a putative class action against the Board of Education of Howard County, Maryland, alleging that the board's process for selecting student members, which permitted only public school students to vote for a student member of the county school board, violated the Fourteenth Amendment's Equal Protection Clause and the First Amendment's Free Exercise Clause. One of the parents argued that letting public school students pick the student member on the school board, among other things, contravened the Free Exercise Clause since it excluded students who do not attend public schools, including those who do so for religious reasons.
The U.S. Court of Appeals for the Fourth Circuit affirmed the dismissal of the complaint by the U.S. District Court for the District of Maryland. In rejecting the Free Exercise claim brought by a parent whose son attended a Catholic private school and therefore could not participate in the student member selection process, the court held that the relevant law was neutral because it "d[id] not consider religious motivation but depend[ed] on public school enrollment." Furthermore, the court held the law was generally applicable because it made "no distinction between religious and secular. It bars non-public-school students, religious and nonreligious alike, from choosing or serving as the student member." Then, the court determined that the law satisfied rational basis review since "[empowering] ... students to help select from among themselves a representative to serve a yearlong term on the county's school board is not 'wholly irrelevant' to achieving Maryland's possible interests in making room for student perspectives on its school boards or providing students with civics training."
Firefighters May Move Forward with Free Exercise Claims Over Vaccine Mandate
Anthony J. Sirven
In Bacon v. Woodward, 104 F.4th 744 (9th Cir. 2024), the U.S. Court of Appeals for the Ninth Circuit overturned the U.S. District Court for the Eastern District of Washington's dismissal of a challenge to a void vaccine mandate that city firefighters brought based on the Free Exercise Clause. The district court held that the Spokane firefighters could state no claim because, even if it were to apply a strict scrutiny analysis, the mandate was sufficiently "narrowly tailored in that it applies to a specific job sector whose employees come into regular contact with vulnerable segments of the public ... and whose employees work in close contact with their peers and other healthcare professionals in other facilities." Furthermore, the district court held the claims became moot once the governor rescinded the mandate, even though the rescission took effect after some of the firefighters had already been terminated. The court of appeals disagreed.
For the court of appeals, "the district court's strict-scrutiny analysis left much to be desired." Indeed, whenever a law "burden[s] religious exercise," it must be "subject to 'the most rigorous scrutiny' unless it is both neutral and generally applicable." Based on the firefighters' pleadings, the court of appeals was satisfied that the mandate was not "generally applicable," given they alleged that the mandate provided certain exemptions on "secular" (nonreligious) grounds, while imposing a higher burden for those seeking an exemption on religious grounds. The mandate thus had to survive strict scrutiny. On that front, the court of appeals found the firefighters sufficiently alleged the mandate could not get around a strict scrutiny analysis, particularly given the government could have accomplished the same goal through narrower means – such as giving the firefighters the option to mask or socially distance and, additionally, considering those who had "natural immunity" – rendering it insufficiently "narrowly tailored." Additionally, the court of appeals disagreed that the issue had become moot after the mandate had been rescinded, as some of the firefighters had lost their jobs because of the mandate.
Injunction Denied Against School Board to Prevent Exposing Children to Certain Books
Anthony J. Sirven
In Mahmoud v. McKnight, 102 F.4th 191 (4th Cir. 2024), parents whose children attend a Maryland public school district sought a preliminary injunction against the school board to prevent schools from exposing elementary- and preschool-age children to certain "LGBTQ-inclusive books" and related discussions based on their free exercise and due process rights. The parents, including many of several different faith traditions, challenged the school board's curriculum as teaching their children lessons "at odds with the religious faith"; others challenged the content on age-appropriate (i.e., secular) grounds, deeming it inappropriate for the "children's age and development," including certain books targeting "three- and four-year-old audience[s]." The parents thus sought for the policy to be amended to provide them with the ability to "opt out" of such lessons, along with being given sufficient notice to keep their children from attending class on days when the lessons would include such curriculum.
The U.S. District Court for the District of Maryland and, later, the U.S. Court of Appeals for the Fourth Circuit found that the parents, at this early stage, had not demonstrated a sufficient "likelihood of success on the merits" to warrant a preliminary injunction, particularly in light of the "threadbare" record – which it deemed insufficient to show the school board had affirmatively burdened the parents' or their children's religious beliefs. The court of appeals clarified that it took "no view on whether the Parents will be able to present evidence sufficient to support [their claims]," but affirmed the district court's conclusion that the parents had not met the "very high burden to obtain a preliminary injunction" at "this early stage."
RFRA
Church's Challenges to City Development of Religiously Significant Area Fail
Keiana René Wilkerson
In Perez v. City of San Antonio, 98 F. 4th 586 (5th Cir. 2024), the U.S. Court of Appeals for the Fifth Circuit concluded that the appellants, members of a Native American church, were not likely to succeed on the merits of their challenges under the Texas Religious Freedom Restoration Act (TRFRA), the Texas Constitution and the U.S. Constitution to the City of San Antonio's planned development of an area of a public park routinely used by the appellants for religious observances. The appellants claimed that the city's development plan burdened their religious practices because it closed an area of religious significance to the appellants and interfered with the area's religiously significant ecology. The appellants sought injunctive relief directing the city to grant the appellants access to the area, preserve the area's ecology and reevaluate the project to determine alternatives that would accommodate the appellants' beliefs. On appeal, the court of appeals affirmed the U.S. District Court for the Western District of Texas' denial of injunctive relief.
The court of appeals concluded that the appellants' challenge regarding access to the area was moot since the city had since voluntarily provided public access to the area and allowed the appellants to conduct their religious ceremonies during hours the park was normally closed. The court held that under the TRFRA, the plan did not significantly burden the appellants because the impact it would have on the ecology was minimal and only indirectly impacted the appellants' religious conduct. However, the court additionally concluded that the city's plan survived a strict scrutiny analysis because the city proved a compelling interest in promoting public safety by removing accident and disease hazards, and because the city used the least restrictive means to promote this goal after thorough consideration of stakeholder interests, including that of the appellants, and narrowly tailored the plan to remove as few trees as possible. The appellants' Free Exercise Clause claim under the U.S. Constitution also failed because the city had a proven interest in creating the plan and narrowly tailored the plan to accomplish its goals. The court lastly dismissed the appellants' claim under the Texas Religious Service Protections of the Texas Constitution because it was unclear whether it contemplated the preservation of ecology related to spiritual services.
Establishment Clause
Adding "Caste" to Antidiscrimination Laws Held Not to Violate First Amendment
Keiana René Wilkerson
In Bagal v. Sawant, no. C23-0721-RAJ, 2024 WL 1012908 (W.D. Wash. March 8, 2024), the U.S. District Court for the Western District of Washington held that the City of Seattle's ordinance adding "caste" as a protected class to the city's antidiscrimination laws did not violate the Establishment Clause, the Free Exercise Clause or the Equal Protection Clause. The plaintiff, a member of the Hindu religion, alleged that by incorporating "caste" into the city ordinances, the city stigmatized members of the Hindu religion in violation of the Establishment Clause and the Free Exercise Clause, and in contravention of the Equal Protection Clause. The court dismissed the plaintiff's Free Exercise Clause claim, concluding that the plaintiff lacked standing to raise this claim since he did not demonstrate that the ordinance in any way burdened his religious practices. The court also dismissed the plaintiff's Establishment Clause claim, holding that the city's ordinance did not endorse or disfavor a religion or religious beliefs by acknowledging "castes," even though the ordinance might refer to "caste" in a way that may "strike some members of a religion as reflecting poorly on their religious beliefs." The court lastly dismissed the plaintiff's Equal Protection Clause claim, alleging that the ordinance caused "loss of reputation," because the ordinance did not facially discriminate or have a discriminatory impact or intent.
Challenge to Zoning Law as Preferring Religious Uses Dismissed
Madison Houghton
In Citizens United to Protect our Neighborhoods v. Village of Chestnut Ridge, N.Y., 98 F. 4th 386 (2nd Cir. 2024), a civic membership organization and individual residents filed a lawsuit against the Village of Chestnut Ridge for a new zoning law, which revised the permit process for religious use and included a provision for automatic blanket variances for residential gathering places and neighborhood places of worship. The plaintiff challenged the zoning law based on the Establishment Clause, claiming that the law was an affirmative action on the part of the village to give religious uses a preferred status over secular uses. The U.S. Court of Appeals for the Second Circuit affirmed dismissal of the lawsuit by the U.S. District Court of the Southern District of New York for lack of subject matter jurisdiction, finding that the individual plaintiffs lacked municipal taxpayer standing, direct harm or denial-of-benefits standing, and that the membership organization lacked associational or organizational standing.
Title VII
Teacher's Termination for Not Following Name and Pronoun Guidelines Upheld
Ryan Martin Kocse
In Kluge v. Brownsburg Community School Corp., No. 1:19-cv-02462-JMS-KMB, 2024 WL 1885848 (S.D. Ind. Apr. 30, 2024), the U.S. District Court for the Southern District of Indiana granted the defendant public school's motion for summary judgment against a former teacher on his failure-to-accommodate claim under Title VII. The former teacher had been terminated for refusing to follow the school's guidelines for addressing transgender students by their chosen first names and pronouns in the school's database, despite the teacher's objection based on religious beliefs. Although the plaintiff, a Christian, initially was granted an accommodation to refer to all students on a last-name only basis (and without explaining to students that the practice was due to his religious beliefs), students and teachers who attended the school's Equality Alliance Club meetings began complaining about the plaintiff's use of last names for everyone instead of the preferred first names and pronouns for the transgender students.
The court analyzed the plaintiff's claim under Groff v. DeJoy, 600 U.S. 447 (2023), which clarified the standard for undue hardship in Title VII religious accommodation cases. Under Groff, an undue hardship is imposed upon an employer if granting the accommodation would result in "substantial increased costs in relation to the conduct of its particular business." Groff, 600 U.S. at 470. The court found that "BCSC is a public-school corporation and as such has an obligation to meet the needs of all of its students, not just a majority of students or the students that were unaware of or unbothered by [the plaintiff's] practice of using last names only." Given that the school had "presented evidence that two specific students were affected by [the plaintiff's] conduct and that other students and teachers complained," the court held that "[a]s a matter of law, this is sufficient to demonstrate undue hardship, because if BCSC is not able to meet the needs of all of its students, it is incurring substantially increased cost to its mission to provide adequate public education that is equally open to all."
The plaintiff filed an appeal with the Seventh Circuit on May 31, 2024.
Termination of Fire Chief Not Religious Discrimination
Nathan A. Adams IV
In Hittle v. City of Stockton, California, 101 F 4th 1000 (9th Cir. 2024), the U.S. Court of Appeals for the Ninth Circuit affirmed summary judgment against a former fire chief for the City of Stockton on his lawsuit for religious discrimination in violation of Title VII and California's Fair Employment and Housing Act (FEHA). The court of appeals agreed with the city that the deputy city manager's comments about the chief being part of a "Christian coalition" and part of a "church clique" did not constitute direct evidence of discriminatory animus because they originated from anonymous complaint letters from a fire department employee. According to the court of appeals, these comments and the deputy city manager's instruction not to "further religious activities" or "favor one religion over another" reflected her legitimate concern that the city could violate the Establishment Clause if it was seen to engage in favoritism with certain employees because they were members of a particular religion. Likewise, the court of appeals agreed that a removal notice issued by the city to its chief did not demonstrate direct evidence of religious discrimination despite repeated references to his attendance at a "religious event," which the chief referred to as a "leadership conference." Rather, the comments were due to a legitimate nondiscriminatory reason; i.e., lack of benefit to the city. The city terminated the chief for attending the event on the city's time and using a city vehicle, defending the union president's leak of confidential data, failing to disclose his personal relationships and financial interests with respect to a consultant and the union president, refusing to discipline the fire marshal for improper overtime practices, and refusing to prepare a layoff plan or recommend staffing cuts during the city's fiscal crisis. Several judges dissented from denial of rehearing en banc. Judges Consuelo Callahan and Lawrence VanDyke said that disputed issues of fact should have been decided by the jury and questioned whether the court was applying a double standard to the Christian exercise of religion. Judges Sandra Ikuta, Callahan and Ryan Nelson would have taken the case en banc to correct, in their judgment, the dilution of the summary judgment standard.
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