Religion Clause

Monday, February 24, 2025

Foster Parent Requirements for Affirming Transgender Children Are Upheld

Last week, a Vermont federal district court in a series of opinions in two cases focused on challenges to the state's rules on licensing of foster parents. The suits were brought by couples who objected on religious grounds to the state's requirement that they be willing to accept any child regardless of sexual orientation or gender identity.

In Antonucci v. Winters I, (D VT, Feb. 20, 2025), the foster care license of plaintiffs was withdrawn because of their inability to comply with the state's non-discrimination requirement that included a commitment to facilitate the social and medical transition of a hypothetical future foster child. Plaintiffs asserted that complying with the requirement would violate their Christian religious beliefs about gender and sexuality. They sued seeking a preliminary injunction, contending that the requirement violated their free speech and free exercise rights. The court denied the preliminary injunction, saying in part:

Plaintiffs argue that, in this case, the state’s interest is not compelling because there is national, and even global, disagreement about the propriety of medical transitioning....

Evaluating the efficacy or safety of a particular procedure is not within this Court’s purview. The Court’s role is to determine whether the Rules and Policies enforced here, which pertain to medical and social transitioning as well as the use of gender-appropriate pronouns, serve a compelling state interest. At this stage in the case, Defendants have submitted sufficient evidence of the benefits of those policies to satisfy that portion of the strict scrutiny test....

The Court ... finds, based upon the current record, that the Rules and Policies established and implemented by DCF and Defendants serve the compelling interest of protecting the health and welfare of LGBTQ youth, and are narrowly-tailored to necessarily address that interest....

In Antonucci v. Winters II, (D VT, Feb. 20, 2025), the court on qualified immunity grounds dismissed plaintiffs' claim for damages for free exercise and free speech violations. It allowed plaintiffs to proceed on claims for injunctive and declaratory relief. The court did not dismiss plaintiffs' retaliation or equal protection claims because defendants had not offered specific arguments that they were covered by qualified immunity.

In Wuoti v. Winters, (D VT, Feb. 20, 2025), two couples whose foster parent licenses were not renewed challenged the state's foster parent policy on free speech, freedom of association and free exercise grounds. The court denied their motion for a preliminary injunction, saying in part:

Plaintiffs argue that Defendants are compelling them to “speak the State’s views while prohibiting them from expressing their religious views.”... Compliance with DCF Rules and Policies, however, is different from speech. Defendants did not compel Plaintiffs to change their beliefs, or to make any statements that disavowed those beliefs. Instead, Defendants were pursuing their mission of ensuring a welcoming, affirming, and safe home for each child....

Plaintiffs further argue that Defendants were compelling them to use preferred pronouns and to otherwise speak in ways that are contrary to their religious beliefs about gender and sexuality, while at the same time restricting them from expressing their own views on those issues. The DCF Rules and Policies at issue, however, are based upon research and feedback regarding outcomes for LGBTQ youth. The record does not establish that they are targeted at any religious viewpoint. Indeed, the alleged restrictions are at most incidental to rules of conduct designed to promote healthy and affirming homes....

Nothing in the record indicates that Defendants are compelling Plaintiffs to associate with any specific person or group. Plaintiffs protest that their license denials were based in part on their professed inability to associate with certain events, as in a pride parade. When DCF raised the possibility of attending a gay pride parade, however, the suggestion was merely hypothetical. Indeed, while Policy 76 suggests that staff “encourage” such activities, there is no requirement that foster families engage in them. Nor are Defendants preventing Plaintiffs from associating with others who share their beliefs, as in attending church. What foster parents may not do is require children in their care to engage in activities that are non-affirming....

Here, nothing on the face of DCF’s Rules and Policies targets religious practices or religious applicants....

... [T]he Court finds that Rules and Policies at issue are generally applicable, and that Plaintiffs are unlikely to succeed on their free exercise claim....

Plaintiffs are concerned about foster families whose religious beliefs are not consistent with DCF policies, DCF does not compel such families to change or reject their beliefs. What it does require is the provision of an affirming environment for children who are, or who come to identify as, LGBTQ.

Sunday, February 23, 2025

Title VII Applies to Liberty University's Firing of Transgender Employee

In Zinski v. Liberty University, Inc., (WD VA, Feb. 21, 2025), a Virginia federal district court refused to dismiss a Title VII sex discrimination lawsuit against Liberty University brought by a former employee whose employment as an IT Apprentice was terminated because she underwent a male to female sex transition. In an extensively reasoned 70-page opinion, the court rejected several defenses asserted by the University. First the University contended that §§702 and 703 of the 1964 Civil Rights Act allow a religious employer to discriminate on the basis of transgender status when that is consistent with the employer’s religious belief. Those section allow a religious employer to discriminate "with respect to the employment of individuals of a particular religion." The court said in part:

Having determined that no source of law—from statutory text to legislative history to precedent—answers the question before us, the Court is left to weigh the imperfect arguments above, alongside the potential legal and social consequences of our decision. Drawing upon all of these considerations, we conclude that Sections 702 and 703 must be narrowly construed so as to permit discrimination only on the basis of an employee’s espoused religious belief or practice, such that religious employers have no license to discriminate on the basis of any other protected class. Where a religious employer discriminates on the basis of any other protected class in a but-for fashion, a statutory violation occurs, even if the decision was religiously motivated....

To decide that sex discrimination is acceptable so long as it is religiously motivated would allow employers to achieve all manner of discrimination under the banner of religion. So long as the religious institution can show that its view—despite directly implicating sex, race, or national origin—is a sincerely held religious belief, the religious institution would have free license to discriminate at will and evade the scrutiny of civil law. Not only would this subject potentially thousands of people to discrimination..., but it would supply religious institutions with a power not afforded to secular institutions, thereby generating favorites under the law and raising Establishment Clause questions....

The court also rejected the University's RFRA defense, concluding first that RFRA applies only to suits in which the government is a party. It added:

And even if Liberty were entitled to raise RFRA as a defense, we find that Title VII likely passes strict scrutiny....

On the record before us, enforcing this statute in Zinksi’s case merely requires Liberty to maintain an employee who has not followed the university’s Doctrinal Statement to the letter, i.e., an employee who has sinned. It does not require Liberty to change its belief, to endorse Zinksi’s behavior, or to allow Zinksi to spread a new message within the organization.... The minimal inroad on religious liberty here is easily justified by the exceedingly compelling governmental interest in eradicating sex discrimination in employment. Accordingly, we find that Liberty’s brief argument as to burden is insufficient to show substantial burden at this stage of litigation. Thus, strict scrutiny does not apply, and our analysis can come to an end.....

The court rejected the ministerial exception defense, saying in part that "nothing in the record suggests that Zinski was a minister." The court also rejected the University's freedom of expressive association claim, saying in part:

... [W]e must defer Liberty’s claim that it opposes transgender identification and seeks to avoid any promotion of transgender status as an appropriate form of behavior. However,... we cannot conclude that Zinksi’s presence at Liberty would “force the organization to send a message” that Liberty accepts transgender conduct as a “legitimate form of behavior.”... Zinksi is an IT employee who has limited to no interactions with students, has no role in influencing or promoting Liberty’s value system, and has no role in Liberty’s religious curriculum or programming. The only inference that we can draw for Liberty is that Liberty may be seen as a hypocrite for employing a transgender person when it opposes transgender identity; but the same could be said for Liberty’s employment of any other type of person who “sins” despite Liberty’s opposition to sin in general....

Finally, the court rejected the University's ecclesiastical abstention defense, saying in part:

Zinski’s complaint asks the Court to determine whether Title VII prohibits a religious institution from firing a transgender person, not whether a religious institution, like Liberty, has properly interpreted its religious doctrine when determining that a transgender person violates religious law and must be fired.

Friday, February 21, 2025

HHS Issues Guidance On Defining Gender-Based Terms

On Wednesday, the Department of Health and Human Services issued a release titled "Defining Sex: Guidance for Federal Agencies, External Partners, and the Public Implementing Executive Order 14168, Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government." (full text). The 1½ page memo says in part:

There are only two sexes, female and male, because there are only two types of gametes. An individual human is either female or male based on whether the person is of the sex characterized by a reproductive system with the biological function of producing eggs (ova) or sperm....

Recognizing the immutable and biological nature of sex is essential to ensure the protection of women’s health, safety, private spaces, sports, and opportunities. Restoring biological truth to the Federal government is critical to scientific inquiry, public safety, morale, and trust in government itself.

The Release goes on to define the terms "sex", "female", "male". "woman", "girl", "man", "boy", "mother", and "father",

Catholic Bishops Sue Feds Over Cutoff of Refugee Resettlement Funding

The U.S. Conference of Catholic Bishops this week filed suit against the State Department and HHS challenging the abrupt cutoff of funds for refugee resettlement. The complaint (full text) in U.S. Conference of Catholic Bishops v. U.S. Department of State,, (DDC, filed 2/18/2025), alleges in part:

First, the Refugee Funding Suspension contravenes appropriations-related statutes and flouts the Constitution’s vesting of the power of the purse in Congress....

Second, the Refugee Funding Suspension is arbitrary and capricious. For the first time in forty-five years, and without warning, the government has cut off funding to USCCB for the essential services USCCB provides to government-approved refugees, including refugees already placed with USCCB and its subrecipients....

Third, the Refugee Funding Suspension is unlawful because it was done without public notice and opportunity to comment.

The U.S. Conference of Catholic bishops issued a press release announcing the filing of the lawsuit.

Thursday, February 20, 2025

ED's Title IX Rule Violates 1st Amendment

In Carroll Independent School District v. U.S. Department of Education, (ND TX, Feb. 19, 2025), a Texas federal district court invalidated the Department of Education’s rule that interprets Title IX as prohibiting discrimination based on sexual orientation and gender identity. The court had previously issued a preliminary injunction barring enforcement of the rule against plaintiff school district. The court now permanently vacates the Rule, finding, among other things, that it violates the First Amendment. The court said in part:

Because “misgendering” could, under this broad standard, constitute hostile environment harassment, teachers will “assume they should use subjective gender terms to avoid discipline under the Final Rule.”

As a consequence, recipients of Title IX funds, including teachers, are forced “to be an instrument for fostering public adherence to an ideological point of view [they] find[] unacceptable.”... The Final Rule functionally turns recipients of federal funds into federally commandeered censors of speech, forcing schools to require engagement in or, at a minimum, to prohibit certain kinds of speech, which in turn represses what has long been regarded as protected forms of expression and religious exercise.

ADF issued a press release announcing the decision.

Wednesday, February 19, 2025

Suit Challenges Software Company's Denial of Discount to Christian Nonprofit

A suit under California's Unruh Civil Rights Act was filed yesterday in a California federal district court by a Christian nonprofit organization that offers a video curriculum designed to instruct teenagers about Christian beliefs on sexuality. The complaint (full text) in Holy Sexuality v. Asana, Inc., (SD CA, filed 2/18/25), alleges that Asana, Inc. which sells subscriptions for project management software, violated the public accommodation religious discrimination provisions of California law when it denied plaintiff the 50% discount offered to nonprofits. According to the complaint:

To qualify, nonprofits must: have 501(c)(3) status; not be an education or academic institution, hospital, hospital auxiliary, nurse register, mutual organization, or credit union; and not “advocate, support, or practice discrimination based on age, ethnicity, gender, national origin, disability, race, size, religion, sexual orientation, or socioeconomic background.”...

But, under its Religious Discrimination Policy, Asana denies that discount to “[r]eligious organizations that exist to solely propagate a belief in a specific faith.”...

Asana’s religious discrimination was and remains arbitrary, especially because Asana grants discounts to nonprofits who hold views opposite to Holy Sexuality’s and grants discounts to other religious nonprofits.

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

Tuesday, February 18, 2025

Refusing to Allow Minister To Wear Collar At His Criminal Trial Was Not Reversable Error

In People v. Johnson, (CA App., Feb. 18, 2025), a California state appellate court held that a trial court's refusal to allow a criminal defendant, an ordained minister, to wear his clerical collar and have a Bible with him during his trial was not reversable error. Defendant was charged with gross vehicular homicide while intoxicated. The court said in part:

Assuming only for purposes of argument that the trial court erred in not allowing defendant to wear a collar, we must determine whether the error would have been prejudicial. Federal constitutional error requires reversal unless the beneficiary of the error can show it was “harmless beyond a reasonable doubt.” ...

... [P]rohibiting defendant from wearing a clerical collar did not result in a structural defect in the constitution of his trial. Nothing in the record indicates his inability to wear a collar impacted the outcome of his trial, interfered with his fundamental trial rights, or in any way impacted the trial’s structural truth-finding process. Any error by the trial court in not allowing defendant to wear a collar was not structural.

We thus must determine whether the assumed error was harmless beyond a reasonable doubt... Defendant offers no argument on this point. As a result, he has forfeited the issue.... Any error by the trial court denying defendant his request to wear a clerical collar was harmless beyond a reasonable doubt and not prejudicial.

The trial court sentenced defendant to 25 years to life under California's Three Strikes Law. The Court of Appeals however remanded the case for resentencing, finding that defendant did not receive fair notice that a three-strike sentence would be sought.

Monday, February 17, 2025

Court Issues TRO Barring Cutoff of Funds to Institutions Offering Gender-Affirming Care to Minors

In PFLAG, Inc. v. Trump, (D MD, Feb. 14, 2025), a Maryland federal district court set out its reasons for issuing a nation-wide temporary restraining order barring enforcement of the sections of two Executive Orders that prohibit federal funding for institutions that provide gender affirming care for patients under 19 years of age. At issue are provisions in Executive Order 14168, titled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government and in Executive Order 14187, titled Protecting Children from Chemical and Surgical Mutilation. The court said in part:

Defendants admit in the very first line of their response in opposition to the motion for a TRO that the President "issued two Executive Orders directing agencies to take steps, as permitted by law, to condition certain federal grant funding on his policy preferences."23 ECF 55, at 3. This is a clear violation of the Constitution as "attempt[s] [by the Executive Branch] to place new conditions on federal funds [are] an improper attempt to wield Congress's exclusive spending power and is a violation of the Constitution's separation of powers principles."....

Because the challenged portions of the Executive Orders are facially discriminatory on the basis of transgender identity, and therefore sex under Kadel and Bostock, in violation of Section 1557 of the ACA and Section 1908 of the PHSA, the Court finds that Plaintiffs are likely to succeed on the merits of their ultra vires statutory claim....

Defendants assert that the challenged portions of the Executive Orders are based on the important government interest of "protecting the physical and emotional well-being of youth."... Defendants assert that the Orders are substantially related to this important government interest because "[ e ]vidence. abounds that treatments covered by the Protecting Children EO 'are dangerous and ineffective."'... Though Defendants might well have support for this argument, the en banc Fourth Circuit in Kadel rejected a similar claim by noting that "those criticisms do not support the notion that gender-dysphoria treatments are ineffective so much as still developing."... Plaintiffs are likely to succeed on the merits of their Equal Protection claim....

AP reports on the decision.