Thursday, November 18, 2021
Tuesday, November 16, 2021
All you need to know/All I would like to know
I would really like for someone to go slide by slide and debunk this without resort to ad hominin attacks, calls to authority, anecdotes, or other non-substantive rebuttal.
Monday, November 15, 2021
Religious Freedom Restoration Act, a Super Statute
The Religious Freedom Restoration Act (RFRA) is one of those rare laws which lives up to its name.
Reasonableness not up for debate; sincerity, tread lightly
One thing I like about the RFRA is that it prohibits the federal government from second-guessing the reasonableness of sincerely held religious beliefs. As the Department of Justice website describes:
RFRA applies to all sincerely held religious beliefs, whether or not central to, or mandated by, a particular religious organization or tradition. Religious adherents will often be required to draw lines in the application of their religious beliefs, and government is not competent to assess the reasonableness of such lines drawn, nor would it be appropriate for government to do so. Thus, for example, a government agency may not second-guess the determination of a factory worker that, consistent with his religious precepts, he can work on a line producing steel that might someday make its way into armaments but cannot work on a line producing the armaments themselves. Nor may the Department of Health and Human Services second-guess the determination of a religious employer that providing contraceptive coverage to its employees would make the employer complicit in wrongdoing in violation of the organization's religious precepts.
The government may question the sincerity of a belief to a certain degree, but not the reasonableness. Even with respect to sincerity, the government must tread lightly. As the 5th Circuit explained in Tagore v. United States, 735 F.3d 324 (5th Cir. 2013):
The specific religious practice must be examined rather than the general scope of applicable religious tenets, and the plaintiff's “sincerity” in espousing that practice is largely a matter of individual credibility. Id. at 792. In fact, the sincerity of a plaintiff's engagement in a particular religious practice is rarely challenged. Id. at 791. As Moussazadeh explains, “[t]hough the sincerity inquiry is important, it must be handled with a light touch, or ‘judicial shyness.’ ” Id. at 792 (quoting A.A. ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 611 F.3d 248, 262 (5th Cir.2010)). “[E]xamin[ing] religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread.” Id. (fn. omitted). Both before and following Moussazadeh, claims of sincere religious belief in a particular practice have been accepted on little more than the plaintiff's credible assertions. See, e.g., Garner v. Kennedy, 713 F.3d 237, 241 (5th Cir.2013) (Muslim prisoner's desire to wear a beard not challenged by TDCJ); Betenbaugh, 611 F.3d at 261–62 (Native American schoolboy wearing long hair a sincere religious belief; Texas RFRA parallels RFRA); Mayfield v. Tex. Dept. of Criminal Justice, 529 F.3d 599 (5th Cir.2008) (Odin worshiper's religious need for runestones and rune literature not challenged by TDCJ).
Officials can be sued for monetary damages, in their personal capacities
A really interesting thing about the RFRA is that it allows plaintiffs to recover monetary damages against government officials in their personal capacities. The Supreme Court confirmed as much in Tanzin v. Tanvir last year. The Court described the issues there:
Respondents Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari are practicing Muslims who claim that Federal Bureau of Investigation agents placed them on the No Fly List in retaliation for their refusal to act as informants against their religious communities. Respondents sued various agents in their official capacities, seeking removal from the No Fly List. They also sued the agents in their individual capacities for money damages. According to respondents, the retaliation cost them substantial sums of money: airline tickets wasted and income from job opportunities lost. More than a year after respondents sued, the Department of Homeland Security informed them that they could now fly, thus mooting the claims for injunctive relief.
The District Court then dismissed the individual-capacity claims for money damages, ruling that RFRA does not permit monetary relief. The Second Circuit reversed. 894 F. 3d 449 (2018). It determined that RFRA’s express remedies provision, combined with the statutory definition of “Government,” authorizes claims against federal officials in their individual capacities. Relying on our precedent and RFRA’s broad protections for religious liberty, the court concluded that the open-ended phrase “appropriate relief” encompasses money damages against officials. We granted certiorari, 589 U. S. ___ (2019), and now affirm.
An important thing to keep in mind about Tanzin v. Tanvir, is that the plaintiffs had already been removed from the No Fly List by the time the case was before the Court. The government argued that this fact made the case moot. But the Court disagreed. Plaintiffs might still be entitled to damages. To me, this means that federal employees who take the injections after having their religious exceptions denied might still have non-moot claims for damages.
A super statute which creates standing
Perhaps one of its most important aspects is the RFRA's power to provide plaintiffs with standing to bring their claims in federal court. The RFRA mandated that the law “'be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.’” Hobby Lobby, 573 U.S. at 696 (quoting 42 U.S.C. § 2000cc—3(g)). “RFRA operates as a kind of super statute, displacing the normal operation of other federal laws.” Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754 (2020).
A big question is whether the RFRA provide federal employees with standing to file lawsuits against the federal government. When addressing this issue, the the EEOC's website lists four cases.
They represent a mixed bag.
In two circuit court cases, the 8th and 3rd Circuits found that Title VII provides the "exclusive remedy" for religious discrimination claims of federal employees.
- Harrell v. Donahue, 638 F.3d 975, 984 (8th Cir. 2011)(holding RFRA claims alleging religious discrimination in federal employment are barred because “Title VII provides the exclusive remedy for [] claims of religious discrimination”);
- Francis v. Mineta, 505 F.3d 266, 272 (3d Cir. 2007) (stating that “[i]t is equally clear that Title VII provides the exclusive remedy for job-related claims of federal religious discrimination, despite [plaintiff’s] attempt to rely upon the provisions of RFRA”). [In a third case, not on the EEOC website, the 9th Circuit sided with the 8th and the 3rd. See Holly v. Jewell, 196 F.Supp.3d 1079, 1085 (N.D. Cal. 2016) (dismissing constitutional claim arising from alleged First Amendment religious discrimination as covered exclusively by Title VII)]
But in one district court case, out of the Southern District of Ohio (6th Circuit), the judge found that Title VII does not preclude such an action.
- Lister v. Def. Logistics Agency, No. 2:05-CV-495, 2006 WL 162534, at *3 (S.D. Ohio Jan. 20, 2006) (denying defendants’ motion to dismiss as to RFRA claim and finding that “Title VII does not preclude Plaintiff from pursuing claims under the Fifth Amendment to the United States Constitution and RFRA” because “[a]lthough the claims arise from the same factual circumstance as the Title VII claim, the claims are distinct from Plaintiff’s claim for employment discrimination and therefore are not precluded by Title VII”).
In the fourth case, the 5th Circuit found that the RFRA provided standing to a federal employee who was suing a federal agency which was not her employer.
- In addition, one appellate court has held that a federal employee is not preempted from bringing a RFRA claim against another agency (not his employer) to challenge that agency’s action interfering with employment. See, e.g., Tagore v. United States, 735 F.3d 324 (5th Cir. 2013) (allowing employee’s RFRA claim to proceed against agency that enforced building security regulations and denied her permission to enter building while wearing a kirpan).
Targore is an interesting case. Plaintiff there brought a Title VII case against the her employer (IRS) as well as an RFRA case against DHS which had barred her from wearing a religious weapon which had led to her discharge from the IRS. The 5th Circuit dismissed the Title VII claim, but not on standing grounds. Rather, the court found that the IRS did not control the building and had not failed its duty to attempt to reasonably accommodate the plaintiff. The 5th Circuit found that the plaintiff did have standing and a triable case against DHS.
The RFRA has only grown stronger since Targore and the other cases cited by the EEOC. As Justice Gorsuch wrote in Bostock, "[b]ecause the "RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases."
So, what does this all portend for vaccine mandate cases? It seems to me that if the RFRA's definition of "government officials" includes FBI agents in their personal capacities, it also includes presidents who sign executive orders in their official and personal capacities, as well as the officials who make up the Safer Federal Workforce Task Force, and various agency officials who make decisions about whether to provide employees with religious exceptions and what kinds of questions about their religion they should be forced to answer.
In my view, there are two distinct religious burden issues. First, there is the issue of the religious burden imposed on those who have a religious belief that runs contra taking the mandated injections. Second, there is the issue of the burdens involved in seeking relief from the mandate. For instance, if the exception process is an elaborate, bad faith charade where officials know that they will not be accommodating any religious exceptions, but they lead employees on to write out requests for them...that would seem to me to represent an undue burden on religious practice.
But I will caution the reader to do his own research. My research on these issues is done without access to legal resources like Westlaw, and it is done on my own time (which is pretty limited by fact of the five children who keep me pretty busy). Which is to say that it is always possible that I am missing something important. Do your own research (and if you find any relevant authority, please send it my way).
david.foley.JMJ@protonmail.com
Saturday, November 13, 2021
Litmus Test Failures at Intelligence Agencies
As reported by Reuters, there seem to be a good number of employees in the civilian intelligence community who are resisting the mandate. Presumably those intelligence employees know a thing or two about how to detect lies, including "big lies."
It is hard to know how many we are talking about because the percentages (except for the CIA which reports 97% vaccination rate) are secret:
"The Biden administration classified information it gave the intelligence committee on each of the nation’s 18 intelligence agencies, said Stewart, who noted generally that agencies more closely affiliated with the military tended to report lower vaccination rates."
An op-ed by US Reps. Chris Stewart (R-UT) and Devin Nunes (R-CA) raises some important questions.
One can also reasonably ask whether the Biden administration believes that a benefit of this policy will be to shrink a demographic within the realm of government service that the administration perceives to lean conservative.
I raise the same issue in my lawsuit. ("the Order acts as a loyalty test and will have the effect of purging [straight, white, conservative, Christian men] from the ranks of the federal government")
The congressmen go on to note:None of this is even to mention how these employees might react to being fired over a personal medical decision. It is a legitimate concern to create significant numbers of unemployed intelligence professionals with Top Secret clearances. These officers very well may feel betrayed, angry, and underappreciated by a country they chose to protect.
Good point.
Friday, November 12, 2021
Covid Mandate Jokes
1. I was going to tell a Covid symptom joke...
but it was bad taste
Although 99.95% of you would not have
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