Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., the Seventh Circuit held that the Co-Director of Guidance at a Catholic high school was a “minister” for purposes of the ministerial exception doctrine. The court also held that the ministerial exception doctrine applies to state tort claims for interference with contractual relationships and intentional interference with employment relationships. 
  • In The School of the Ozarks, Inc. v. Biden, the Eighth Circuit held that a Christian college lacks standing to challenge a memorandum issued by the U.S. Department of Housing and Urban Development. The memorandum directs the HUD office that enforces the Fair Housing Act to investigate all discrimination complaints, including discrimination based on sexual orientation or gender identity. At issue is the school’s religiously-inspired Code of Conduct, which specifies that biological sex determines a person’s gender and therefore requires single-sex residence halls. 
  • In Rojas v. City of Ocala, Florida, the Eleventh Circuit vacated and remanded a district court’s Establishment Clause decision that had relied on the now-repudiated Lemon test. In the case, plaintiffs challenged a prayer vigil that was co-sponsored by the Ocala police department and held in response to a shooting spree that had injured several children. 
  • In Buettner-Hartsoe v. Baltimore Lutheran High School Association, a Maryland federal district court held that a §501(c)(3) tax exemption for a religiously-affiliated high school constitutes federal financial assistance so that the school is subject to Title IX. The court also stated that schools that discriminate on the basis of sex are not entitled to federal tax exemptions. 
  • In Chris v. Kang, an Oregon federal district court dismissed a claim of race and national origin discrimination brought by a plaintiff who was not hired as the Worship Pastor of a Baptist Church. The court held that the ministerial exception doctrine applies to both Title VII and state employment discrimination claims, insulating from judicial review the church’s decisions on who should be its ministers. 
  • A petition for certiorari was filed in Church of Scientology International v. Bixler. In the case, a California state appellate court held that former Church of Scientology members were not bound by their agreement to submit disputes to the church’s Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the church. 

Around the Web

Here are some important law-and-religion news stories from around the web:

  • In Kennedy v. Bremerton School District, the U.S. Supreme Court held that a school district violated the First Amendment’s Free Speech and Free Exercise Clauses when the district disciplined a football coach for visibly praying at midfield following football games. Writing for the majority, Justice Gorsuch found that the coach sought to engage in private, sincerely motivated religious exercise and decided that the district could not bar this activity because of its own Establishment Clause concerns. In reaching this decision, the Court repudiated the Lemon test – which had been relied upon by the lower courts in deciding the case. 
  • In LaCroix v. Town of Fort Myers Beach, Florida, the Eleventh Circuit preliminarily enjoined a town’s ban on all portable signs. The ordinance was challenged by an individual who was cited for carrying a sign on a public sidewalk that conveyed his “religious, political and social message” that Christianity offers hope and salvation. 
  • In Apache Stronghold v. United States, the Ninth Circuit held that a proposed federal government land exchange in Arizona will not substantially burden Apache religious exercise in violation of RFRA. The court also held it will not violate the First Amendment because the Land Exchange Provision is a neutral and generally applicable law. 
  • In Halczenko v. Ascension Health, Inc., the Seventh Circuit affirmed the denial of a preliminary injunction that had been sought by a pediatric critical care specialist. The specialist was fired from his hospital position after he refused, on religious grounds, to comply with the hospital’s COVID vaccine mandate. The court concluded that Plaintiff had shown neither irreparable injury nor inadequate remedies through a Title VII action. 
  • In Mishler v. Mishler, a Texas state appellate court held that there is neither a state nor a federal free exercise issue with a divorce decree, based on the parties’ prior agreement that the husband would deliver certain property to the wife only upon the wife’s acceptance of a “Gett” (a Jewish divorce document that the wife must accept for the divorce to be valid under Jewish religious law). 

Second Circuit Holds that National Motto, “In God We Trust,” on the Currency is Constitutional

In a decision last week, the U.S. Court of Appeals for the Second Circuit joined four other circuits (the D.C. Circuit, the Tenth Circuit, the Fifth Circuit, and the Ninth Circuit) in upholding the constitutionality of two federal statutes that require that the national motto, “In God We Trust,” be placed on all coinage and paper currency. The court affirmed the dismissal of the complaint by the district court (Baer, J.).

The panel noted that there was some dispute and confusion about the proper Establishment Clause standard to apply in the case. It settled on the Lemon test, which is the “prevailing test in this circuit.” How odd that there is a “prevailing test” in a circuit that may well have been rejected by a current majority of the Supreme Court. And yet while the Second Circuit applied a test whose viability is in question, it also deferred to repeated Supreme Court dicta on the issue, indicating that the motto and its inclusion on the currency is a reference to our religious heritage and therefore satisfies the “secular purpose” and “primary secular effect” prongs of Lemon. The court then saw fit to rely on statements in several dissenting Supreme Court opinions. Even Justice Stevens in his Van Orden v. Perry dissent believed that “In God We Trust” was ok as “an appendage to a common article of commerce” (not quite sure what that means). And Justice Brennan once stated in dissent that “In God We Trust” did not violate the Constitution because the words have lost “any significant religious content” through “rote repetition.” That, too, was claimed by the panel to be persuasive.

The plaintiffs also brought free exercise and RFRA claims. These were rejected as well.

Second Circuit Upholds NY’s Kosher Labeling Statute

New York’s Kosher Law Protection Act of 2004 requires sellers who market food products as kosher to label the products “kosher” and identify the person who has made the “kosher” certification. Unlike an earlier statute, which defined “kosher” by reference to Orthodox Jewish kashrut rules, the 2004  act does not define the term or authorize state inspectors to determine whether products satisfy particular kashrut requirements. It simply requires sellers to affix a label and disclose the basis for their assertion that the products are, in fact, kosher.

A New York deli that sells kosher food under the supervision of a non-Orthodox rabbi challenged the 2004 statute under the Establishment and Free Exercise Clauses. The deli pointed out that non-Orthodox interpretations of Jewish law do not require kosher food to bear a label, and argued that the labeling requirement thus amounted to an establishment of Orthodox Judaism. The deli also argued that the labeling requirement burdened its free exercise of a non-Orthodox form of Judaism.

Yesterday, the Second Circuit dismissed these claims. With respect to establishment, the court applied the  Lemon test. It held that the 2004 act had the secular purpose of preventing consumer fraud and did not advance religion. It’s true that the labeling requirement coincided with Orthodox Jewish practice, the court reasoned, but that did not amount to a legislative endorsement of Orthodox Judaism. A reasonable observer would see the labeling requirement as a neutral guide for consumers who wished to purchase kosher food — 70% of whom, the court noted, were not even Jewish, according to market research (who knew?). And, because the statute did not require the government to assess the correctness of a kosher designation, but only required sellers to identify the private persons that had made the designation, the statute did not threaten any entanglement with religion. With respect to the free exercise claim, the court held under Smith that the 2004 act was a neutral and generally applicable consumer protection law that did not violate plaintiff’s rights. The case is Commack Self-Service Kosher Meats v. Hooker, 2012 WL 1633143  (May 10, 2012).