Governors In Minnesota and Washington Sign Bills Protecting Access to Abortion and Gender-Affirming Care

On April 27, Minnesota Governor Tim Walz signed three bills protecting right to abortion and gender-affirming health care.  A press release from the Governor's Office describes the legislation:

Chapter 28, House File 16 prohibits mental health practitioners or mental health professionals from providing conversion therapy to vulnerable adults and clients under age 18. The bill also prohibits fraudulent or deceptive advertising practices relating to conversion therapy.

Chapter 29, House File 146 prevents state courts or officials from complying with child removal requests, extraditions, arrests, or subpoenas related to gender-affirming health care that a person receives in Minnesota....

Chapter 31, House File 366 , the Reproductive Freedom Defense Act, ensures that patients traveling to Minnesota for abortion care, and the providers who serve them, are protected from legal attacks and criminal penalties from other states.

In Washington state, on April 27 Governor Jay Inslee signed five bills protecting access to abortion and gender-affirming services. A press release from the Governor's office describes the legislation:

In anticipation of a Trump-appointed judge’s ruling pulling a common and safe abortion pill from shelves nationally, the governor acted quickly to secure a three-year supply of mifepristone for the state that could be distributed regardless of federal court action.

With the 30,000 doses being held by the state Department of Corrections, all that was left to do was pass a bill that authorized the department to distribute the medication to health providers.... SB 5768 ... does just that....

... Shield Law, HB 1469... prohibits compliance with out-of-state subpoenas related to abortion and gender affirming care services; prevents cooperation with out-of-state investigations; bans extraditions related to abortion and gender affirming care services that occur legally in Washington; and protects providers from harassment for providing these services.....

Inslee also signed a bill to ensure health providers can’t be disciplined for providing legal reproductive health services or gender affirming care in Washington. HB 1340... protects health providers from disciplinary action or having their licenses revoked for “unprofessional conduct” if the care provided follows state law, regardless of where their patient resides.....

HB 1155, the “My Health, My Data” Act, ... will increase privacy protections around collecting, sharing and selling consumer health data. Some popular consumer products can track and share data on individuals’ health — and protections around the use of that data became more necessary with the attack on abortion care in other states....

Patients often face cost-sharing [under their health insurance plans] for receiving abortion care. SB 5242 eliminates cost-sharing for abortions and protects patients from unexpected expenses they may not be able to cover.

Biden Declares May As Jewish American Heritage Month

Yesterday President Biden issued a Proclamation (full text) declaring May to be Jewish American Heritage Month. The Proclamation reads in part:

 Jewish Americans continue to enrich every part of American life as educators and entrepreneurs, athletes and artists, scientists and entertainers, public officials and activists, labor and community leaders, diplomats and military service members, public health heroes, and more.... 

All Americans — including business and community leaders, educators, students, athletes, entertainers, and influencers — must help confront bigotry in all its forms.  We must each do our part to put an end to antisemitism and hatred and create a culture of respect in our workplaces, schools, and homes and across social media.

This Jewish American Heritage Month, let us join hands across faiths, races, and backgrounds to make clear that evil, hate, and antisemitism will not prevail.  Let us honor the timeless values, contributions, and culture of Jewish Americans, who carry our Nation forward each and every day.  And let us rededicate ourselves to the sacred work of creating a more inclusive tomorrow, protecting the diversity that defines who we are as a Nation, and preserving the dignity of every human being — here at home and around the world.

Suit Seeks Historic Preservation Funds for Churches

Two historic churches have filed suit in a New Jersey federal district court challenging Morris County's exclusion of properties currently used for religious purposes from receiving Historic Preservation funds from the county. Plaintiffs contend that recent U.S. Supreme Court cases invalidate an earlier state Supreme Court decision barring churches from participation in such funding programs. The complaint (full text) in Mendham Methodist Church v. Morris County, New Jersey, (D NJ, filed 4/28/2023), alleges in part:

In 2018 ... the New Jersey Supreme Court concluded that the Religious Aid Clause of the New Jersey Constitution bars state and local governments from providing grants to preserve the architecture of historic churches. Freedom From Religion Found. v. Morris Cnty. Bd. of Chosen Freeholders ...

This is unconstitutional discrimination on the basis of religion: States and local governments that choose to provide a generally available public benefit—such as historic preservation grants—cannot exclude an otherwise-qualified applicant solely because the applicant happens to be a house of worship. See Carson v. Makin, 142 S. Ct. 1987, 1996 (2022).... ;Espinoza v. Mont. Dep’t of Revenue...., 140 S. Ct. 2246, 2262 (2020)....

First Liberty Institute issued a press release announcing the filing of the lawsuit.

Florida Enacts Ban on Religious and Ethnic Intimidation

NBC News reports that Florida Governor Ron DeSantis, while in Israel, signed CS/CS/HB269 a bill (full text) that amends Florida's Public Nuisances law to prohibit threats and intimidation of various sorts. Among the provisions added by the new law is the following:

A person may not willfully and maliciously harass or intimidate another person based on the person's wearing or displaying of any indicia relating to any religious or ethnic heritage.

The law provides for enhanced sanctions if a person "in the course of committing the violation makes a credible threat to the person who is the subject of the harassment or intimidation...."

Former Cantor's Claims Against Synagogue Are Dismissed

In Sklar v. Temple Israel, Westport Inc., (CT Super., April 21, 2023), a Connecticut state trial court dismissed breach of contract and intentional infliction of emotional distress claims asserted by the former Cantor of defendant synagogue, Temple Israel.  Plaintiff contended that the Temple failed to provide him the procedural protections to which he was entitled under his contract before it fired him for three incidents of unsatisfactory performance of duties. The court held that the ministerial exception doctrine precludes plaintiff's contract claims, saying in part:

[T]he manner in which the defendant Temple Israel discharged or disciplined the plaintiff would constitute government interference with an internal decision that affects the faith and mission of the synagogue, thereby violating the Free Exercise Clause. The Court also finds that it would also violate the Establishment Clause, which prohibits government involvement in ecclesiastical decisions because it concerns internal management decisions of the synagogue as to its employment relationship with its clergy.

The court concluded that plaintiff's other allegations, while serious, are legally insufficient to support a claim for intentional infliction of emotional distress. Plaintiff had complained of lapses in COVID protocols and lack of enhanced security which exacerbated his post-traumatic stress disorder.

UK Supreme Court: Jehovah's Witness Organization Not Vicariously Liable for Rape by An Elder

In Trustees of the Barry Congregation of Jehovah's Witnesses v. BXB, (UK Sup. Ct., April 26, 2023), Britain's Supreme Court held that the Jehovah's Witnesses organization is not vicariously liable for the rape of a church member by an elder of the church.  The court said in part:

First, the rape was not committed while Mark Sewell was carrying out any activities as an elder on behalf of the Jehovah’s Witnesses. He was at his own home and was not at the time engaged in performing any work connected with his role as an elder. So, eg, he was not conducting a bible class, he was not evangelising or giving pastoral care, he was not on premises of the Jehovah’s Witnesses and the incident had nothing to do with any service or worship of the Jehovah Witnesses. The lack of direct connection to the role assigned to him as an elder makes these facts significantly different from the institutional sex abuse cases where, eg, as part of their jobs the [defendants] ... were living in the same institution as their victims....

Secondly, in contrast to the child sexual abuse cases, at the time of the rape, Mark Sewell was not exercising control over Mrs B because of his position as an elder. It was because of her close friendship with Mark Sewell and because she was seeking to provide emotional support to him, and not because Mark Sewell had control over her as an elder, that Mrs B went to the back room. The driving force behind their being together in the room at the time of the rape was their close personal friendship not Mark Sewell’s role as an elder. Put another way, the primary reason that the rape took place was not because Mark Sewell was abusing his position as an elder but because he was abusing his position as a close friend of Mrs B when she was trying to help him....

The Court issued a press release summarizing the decision.

Ex-Husband Brings Wrongful Death Suit Against Wife's Friends Who Supplied Abortion Pills

 A novel wrongful death lawsuit was filed last month in a Texas state trial court by the ex-husband of a woman whose two friends assisted her in obtaining abortion medication.  The complaint (full text) in Silva v. Noyola, (TX Dist. Ct., filed 3/10/2023), alleges in part:

Under the law of Texas, a person who assists a pregnant woman in obtaining a self-managed abortion has committed the crime of murder and can be sued for wrongful death.... In defiance of these laws, defendants Jackie Noyola and Amy Carpenter  assisted Brittni Silva in murdering Ms. Silva’s unborn child with illegally obtained abortion pills. Ms. Noyola and Ms. Carpenter also instructed Ms. Silva to conceal their criminal and murderous actions from plaintiff Marcus A. Silva, the father of the child and the husband of Brittni Silva. Ms. Noyola arranged for the delivery of the illegal drugs from Aracely Garcia, which were used to murder baby Silva in July of 2022. 

Marcus Silva recently learned of the defendants’ involvement in the murder of his child, and he brings suit against them for wrongful death and conspiracy....

The manufacturer of the abortion pills that Brittni used is jointly and severally liable for the wrongful death of baby Silva, and it will be added as a defendant once identified in discovery. The manufacturer of the pills caused the death of baby Silva through a “wrongful act” because it violated 18 U.S.C. §§ 1461–1462, which imposes federal criminal liability on anyone who knowingly sends abortion pills through the mail or through any express company, common carrier, or interactive computer service.

The Intercept reports on the lawsuit.

British Court Rejects Parents' Challenge To School's LGBT Curriculum

In Montague v. Governing Body of Heavers Farm Primary School, (UK Cty. Ct., April 24, 2023), a British County Court, in an 89-page opinion, dismissed a suit by Christian parents who objected to a primary school's activities relating to LGBT equality. The court described the claims:

This is a claim for compensation, damages, declarations and recommendations pursuant to alleged violations of the Equality Act 2010, the Human Rights Act 1998 and for breach of Statutory duty....

The Claimants are black Christians whose 4 year old son Izaiyah Montague attended the school between 11th September 2017 and 19th October 2018....

In broad terms, the focus of this case is on the events from mid 2018 when the school decided to arrange a number of activities which would coincide with ‘Pride Month’ in June. It is the school’s position that these events were part of broader teaching throughout the year. This was directed towards supporting tolerance, challenging stereotypes and to prevent bullying....

The parents’ case is that the teaching at the school caused a conflict between their religious household and the approach adopted by the school, exposing their young and vulnerable child to the possibility of conflict and confusion. They further assert that the treatment of the complaints, the detention of Izaiyah and the barring of the Second Claimant were the direct result of their adherence to Christian beliefs and prosecution of a well founded complaint to the school....

In rejecting the parents' claims, the court said in part:

I do not accept that, as formulated, the curriculum the teaching I have outlined, was designed to promote LGBT beliefs over others. The difficulty that the Claimants face is that they have focussed on one aspect of a year long SMSC curriculum. There was very little examination of and criticism of the other five elements of the teaching. By throwing an intense concentration on one sixth of the teaching they have lost sight of, and distorted, the overall SMSC curriculum.... [T]he school were under a duty to meet the requirements of the Education Act....  Indeed I confess that I am very uneasy about some of the comments being made at the school gate and it is important for the children’s responsibilities and experiences in later life that there is some corrective to the ill informed views which were being articulated by some of the parents.

Fox News reporting on the case says that plaintiff is appealing the decision.

Bankruptcy Court Rejects Sex Abuse Claims Arising Outside Boundaries of Diocese

In In re Roman Catholic Diocese of Rockville Centre, New York,(SD NY Bkrptcy., April 19, 2023), a New York federal bankruptcy court held that two groups of claims filed in the Chapter 11 Bankruptcy Reorganization of the Rockville Centre Diocese should be expunged. The claims grow out of alleged sexual abuse by Franciscan brothers that occurred outside of the Diocese.  Claimants argued that the Rockville Centre Diocese had control over the Franciscan Brothers religious organization and so had control over the alleged abusers.  The court said in part:

It is well-established under New York law that for the Diocese to be liable for torts of alleged abusers, the Diocese must have had a duty to control them....

The Brooklyn Claimants’ position is that the Objection fails to settle the question of “control” as a matter of law considering the internal rules of the Catholic Church, and therefore there is a disputed fact that warrants discovery. The parties agree that the Franciscan Brothers operated the five schools and parishes at issue in the Brooklyn Claims, and the Brooklyn Claimants focus solely on whether the Debtor had control over the Franciscan Brothers. They contend that the Diocese had control over the Subject Entities through its control over the Franciscan Brothers....

The additional allegations in the Brooklyn Response frame Catholic Canon Law as a set of rules that govern employer-employee or principal-agent liability outside of secular legal  principles governing these relationships. Not so. As discussed above, there is a clear constitutional prohibition on this Court weighing in on the parties’ dispute over Catholic Canon Law.... New York courts have rejected the argument that Catholic Canon Law imposes diocesan liability where secular law would not.

Polish Court Convicts LGBT Marchers of Offending Religious Feelings

 Notes from Poland reports that a district court in Częstochowa, Poland last week concluded that two women were guilty of "offending religious feelings" in violation of Article 196 of Poland's Penal Code. The defendants were identified only as Kamila Ł.-B. and Magdalena W.-D.  During the 2021 Equality March in Częstochowa, they displayed images of the Virgin Mary and Jesus with rainbow haloes above their heads. In a procedure which did not require a full trial, the court relied on the opinion of an expert who said that the haloes were not of the Biblical, seven-colors symbolizing hope and closeness to God, but instead were the six-colored LGBT symbol. The court imposed 5 months of community service on one defendant and fined the other 2,000 zloty. Defendants' lawyer says they will contest the judgment, requiring the case to go to a full public trial.

North Dakota Governor Signs New Abortion Ban That Has Limited Exceptions

Yesterday, North Dakota Governor Doug Burgum signed SB 2150 (full text) into law. The new law bars abortions except when it was intended to prevent the pregnant female's death or a serious physical health risk. The law also permits abortions during the first 6 weeks of pregnancy if the pregnancy resulted from gross sexual imposition, sexual imposition, sexual abuse of a ward, or incest. AP reports on the new law, saying in part:

The North Dakota law is designed to take effect immediately, but last month the state Supreme Court ruled a previous ban is to remain blocked while a lawsuit over its constitutionality proceeds. Last week, lawmakers said they intended to pass the latest bill as a message to the state’s high court signaling that the people of North Dakota want to restrict abortion.

In its decision last month, the state Supreme Court concluded that the absence of an exception in the abortion ban for preserving the health of the mother is a critical defect in the state's prior abortion ban.  The new law is presumably designed to respond to that concern.

Defrocked Cardinal McCarrick Indicted in Wisconsin on Sexual Assault Charge

 In an April 17 press release, Wisconsin Attorney General Josh Kaul and Walworth County District   Attorney Zeke Wiedenfeld announced that former cardinal Theodore McCarrick, age 92, has been charged with one count of Fourth-Degree Sexual Assault.  The charge stems from an incident that occurred in April of 1977. The complaint alleges that McCarrick repeatedly abused the victim sexually over time. In 2019, the Vatican defrocked McCarrick because of past sexual misconduct. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Howard A. Palley, The Overturning of Roe v. Wade: A Theocratic and Anti-Democratic Decision, (March 31, 2023).
• Noura Erakat, Darryl Li & John Reynolds, Race, Palestine, and International Law, (AJIL Unbound, Vol. 117, No. 2, pp. 77-81, 2023).
• Andrew M. Koppelman, Religious Liberty as a Judicial Autoimmune Disorder: The Supreme Court Repudiates its Own Authority in Kennedy v. Bremerton, (Hastings Law Review, 2023 Forthcoming).
• Joel A. Nichols, Faith and Faithfulness: Vocation as Self, Others, and a Third Thing, (Touro Law Review, Vol. 38, 2023).
• Kelley Loper, Equality, Dignity and Same-sex Marriage: Reflections on Developments in Hong Kong, 53 Hong Kong Law Journal, Forthcoming.
• Malinda L. Seymore, Adoption as a Substitute for Abortion?, (University of Colorado Law Review, Vol. 95, 2023).
• Lu-in Wang, Reframing Hate,, (Journal of Criminal Law and Criminology, Vol. 112, p. 847, 2022).
• Daniel Bird & Eric Maier, Wayward Samaritans: 'Non-Profit' Hospitals and Their Tax Exempt Status, (University of Pittsburgh Law Review, Forthcoming,).

From SmartCILP:

• Khaled A. Beydoun, Killing an Arab, 101 North Carolina Law Revies 207-222 (2022).
• Blaine L. Hutchison, Revisiting Employment Division v. Smith, 91 University of Cincinatti Law Review 396-436 (2022).
• Justin Burnworth, Replacing Smith with a "Graduated Scale" Approach to the Free Exercise Clause, 54 University of Toledo Law Review 1-26 (2022).

Judge Refuses to Recuse Himself from New Orleans Archdiocese Bankruptcy Matters

AP and WWL-TV reported on Saturday that federal district court judge for the Eastern District of Louisiana, Greg Guidry, has refused to recuse himself from reviewing matters related to the bankruptcy reorganization proceedings of the Catholic Archdiocese of New Orleans. An investigation by the Associated Press found:

... [S]ince being nominated to the federal bench in 2019 by then-President Donald Trump, [Guidry] has given nearly $50,000 to local Catholic charities from leftover contributions he received after serving 10 years as a Louisiana Supreme Court justice.

Most of that giving, $36,000 of it, came in the months after the archdiocese sought Chapter 11 bankruptcy protection in May 2020 amid a crush of sexual abuse lawsuits. That included a $12,000 donation to the archdiocese's Catholic Community Foundation in September 2020 on the same day of a series of filings in the bankruptcy, and a $14,000 donation to the same charity in July of the following year.

At a pre-trial status conference last Friday, Guidry read from an advisory opinion he had received from the federal Judicial Conference's Committee on Codes of Conduct. It concluded that no reasonable person would question Guidry's impartiality. The Advisory Opinion said in part:

none of the charities to which you contributed some of your wind-down campaign funds has been or is an actual party in any proceeding before you....

AP had also reported that Guidry had once served as a board member on the Archdiocese's charitable arm for eight years.  The Advisory Opinion said, however:

[Y]our leadership as a board member of one of the charities ended 15 years ago, which is a significant span of time.

Guidry, who as district court judge would hear appeals from rulings of the district's bankruptcy judge, told the lawyers at the status conference:

Based upon that advice and based upon my certainty that I can be fair and impartial, I have decided not to recuse myself.

Fire Fighter Can Move Ahead with Free Speech and Free Exercise Claims

In Misjuns v. Lynchburg Fire Department, (WD VA, April 20, 2023), a Virginia federal district court held that a fire department captain who was denied training necessary for promotion, and who was ultimately investigated and terminated from his position, had adequately alleged free speech and free exercise violations. One of plaintiff's contentions was that adverse action was taken against him because of a religious anti-transgender posting on one of his Facebook pages. According to the court:

Plaintiff posted a meme ,,, which stated: “In the beginning, God created Adam & Eve. Adam could never be a Madam. Eve could never become Steve. Anyone who tells you otherwise defies the one true God.”...

Plaintiff has sufficiently alleged ... that Defendants’ retaliatory actions against him were due to religious beliefs, not just political beliefs.

Lynchburg News & Advance reports on the court's decision.

Supreme Court Stays District Court's Order That Invalidated FDA's Approval of Abortion Pill

The U.S. Supreme Court yesterday evening in Danco Laboratories, LLC v. Alliance for Hippocratic Medicine, (Sup. Ct., April 21, 2023), and in a companion case in which the FDA was a party, granted stays of a Texas federal district court's order that had found the FDA's approval of the abortion drug mifepristone to be invalid. The stays will remain in effect while appeals work their way through the courts. Justice Thomas indicated that he would have denied the applications for stays.  Justice Alito filed an opinion dissenting from the grant of the stays, saying that the applicants have not shown that they would suffer irreparable harm if the stays were not granted. SCOTUSblog has additional reporting on the Supreme Court's action.

Suit Challenges Tennessee's Ban On Gender Transition Treatment For Minors

Suit was filed yesterday in a Tennessee federal district court challenging Tennessee's recently enacted law banning medical or surgical treatment of gender dysphoria in minors. The complaint (full text) in L.W. v. Skrmetti, (MD TN, filed 4/20/2023), alleges that the ban violates plaintiffs' Equal Protection rights and their rights to parental autonomy, as well as violating provisions of the Affordable Care Act. ACLU issued a press release announcing the filing of the lawsuit.

Suit By Florida Breakaway Methodist Churches Is Dismissed

In Grace United Methodist Church Inc. v. Board of Trustees of FL Annual Conf of UMC Inc., (FL Cir. Ct., April 18, 2023). a Florida state trial court dismissed a suit by 71 Methodist congregations throughout Florida which seek to break away from their parent body because of their objections to United Methodist Church allowing bishops and clergy to officiate at same-sex weddings and to be openly gay. The congregations want to reaffiliate with the more conservative Global Methodist Church. Current UMC rules impose substantial financial costs on congregations seeking to disaffiliate. The court concluded that, under Florida precedent, it must defer to decisions of church hierarchical bodies. It also concluded that actions to determine title to property must be brought in local courts covering the jurisdiction in which the property is located. The court added:

[C]onsidering the recent clarifications from the Supreme Court of the United States on matters of discrimination and unequal treatment based on religious status, along with the abrogation of Lemon v. Kurtzman ... it seems to the Court that merely deferring to the UMC on all matters and denying the Plaintiffs access to the courts to litigate neutral property and trust matters does not meet the strictest scrutiny. Nevertheless, the Court is bound to follow the law as established by the higher courts in the State of Florida.

UM News reports on the decision.

Mississippi Must Grant Religious Exemptions To School Vaccination Requirements

 In Bosarge v. Edney, (SD MS, April 18, 2023), a Mississippi federal district court issued a preliminary injunction requiring Mississippi's State Health Officer, as well as school officials named as defendants, to provide religious exemptions from the state's mandatory vaccination requirements for school children. The court said in part:

The face of the statute allows for medical exemptions but affords no exemption for religious beliefs, and the Complaint alleges that this constitutes “an unconstitutional value judgment that secular (i.e., medical) motivations for opting out of compulsory immunization are permitted, but that religious motivations are not.”....

The Attorney General’s argument is essentially that the Compulsory Vaccination Law does not violate the Free Exercise Clause because the [Mississippi Religious Freedom Restoration Act] MRFRA saves it.... Taking this argument to its logical conclusion as to Plaintiffs’ facial challenge, no Mississippi statute could ever violate the Free Exercise Clause on its face because the more general, non-specific MRFRA applies to all State laws and operates to cure any law that would otherwise be deemed to violate the Free Exercise Clause.... However, at least in this case, the Court is not persuaded that the MRFRA can be read in this fashion with respect to Plaintiffs’ facial challenge.

RNS reports on the decision.

Additional Administrative Stay Issued By Supreme Court In Abortion Pill Case

U.S. Supreme Court Justice Samuel Alito today (April 19) in Food & Drug Administration v. Alliance for Hippocratic Medicine issued an Order (full text) extending the Court's April 14 administrative stay until Friday April 21. At issue is a Texas federal district court's decision invalidating the FDA's approval of the abortion drug mifepristone. Previously the Supreme Court had stayed the district court's order only until today. (See prior posting.) CNBC reports on Justice Alito's action.

President Biden Issues Yom HaShoah Proclamation

President Biden yesterday evening at the start of Yom Hashoah issued A Proclamation on Days Of Remembrance Of Victims Of The Holocaust, 2023 (full text). It reads in part:

During Yom HaShoah and throughout these days of remembrance, we mourn the six million Jews who were murdered during the horror of the Holocaust — as well as the millions of Roma and Sinti, Slavs, disabled persons, LGBTQI+ individuals, and political dissidents who were murdered at the hands of the Nazis and their collaborators.  Together with courageous survivors, descendants of victims, and people around the world, we renew our solemn vow:  “never again.”...

Hate must have no safe harbor in America or anywhere else.  Today and always, we make our message clear:  Evil will not win.  Hate will not prevail.  And the violence of antisemitism will not be the story of our time.  Together, we can ensure that “never again” is a promise we keep....

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 16 through April 23, 2023, as a week of observance of the Days of Remembrance of Victims of the Holocaust, and I call upon the people of the United States to observe this week and pause to remember victims and survivors of the Holocaust.

Report on Worldwide Antisemitism Released

Yesterday, the Center for the Study of European Jewry at Tel Aviv university, along with the ADL, published the 86-page Antisemitism Worldwide Report for 2022 (full text). The Report says in part:

The Antisemitism Worldwide Report for 2022 informs of both increases and decreases, some more meaningful than others, in the number of antisemitic incidents in different countries. The United States, where the largest Jewish minority in the world lives, saw a particularly alarming rise in anti-Jewish violence and slander.

These data are not encouraging. The record-levels of 2021 were attributed in part to the exceptional social tensions created by the Covid-19 epidemic and the political tensions created by the Guardian of the Walls operation in Gaza. The data for 2022 suggest that the motivations for present-day antisemitism are not transient as some may have hoped. Despite the investment of substantial legal, educational, and political efforts, thousands of antisemitic incidents took place across the globe in 2022, including hundreds of physical assaults. Everyone who cares about human dignity and justice must recognize the need to prevent this reality from becoming normalized....

The current state of antisemitism is serious, but must not be inflated or self-servingly politicized. Antisemitic incidents should be reported and analyzed based on rigorous and careful methodologies and definitions and aspire for accuracy rather than sensationalism. Throughout 2022, a spate of studies that seemed oriented towards nothing more than newspaper headlines were published, presenting hysterical data, some grotesquely so. Such efforts do little more than feed cynicism, inaction, and allegations that the fight against antisemitism is an act of “crying wolf.” 

Several of the case studies presented in this Report point to one of the most disturbing attributes of antisemitism: Jews do not have to be a part of a society for them to be defamed there. Last year, the Houthis of Yemen, where almost no Jews live, were one of the loudest antisemitic propagandists in the Arab world ..., while in Japan, two minor political parties that advance vicious anti-Jewish conspiracy theories made it to parliament for the first time.... 

Supreme Court Hears Oral Arguments Today In Title VII Religious Accommodation Case

The U.S. Supreme Court will hear oral arguments today in Groff v. DeJoy, an important religious liberty case testing the extent to which Title VII requires accommodation of employees' religious practices. In the case, the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, held that accommodating a Sunday sabbath observer by allowing him not to report for work on Sunday would cause an "undue hardship" to the U.S. Postal Service.  Thus, failure to grant that accommodation did not violate Title VII. (See prior posting.) In the case, petitioners are asking the Supreme Court to revisit and reject the "more than de minimis" test for "undue hardship" announced in TWA v. Hardison. SCOTUSblog has a Case Preview with more details on the parties' arguments. The SCOTUSblog Case Page has links to the filings by the parties as well as to the more than 50 amicus briefs that have been filed. The arguments will be streamed live from the Supreme Court today at 10:00 AM here. The transcript and audio of the full oral arguments will be available later today here on the Supreme Court's website.

Supreme Court Review Sought in Challenge to Conversion Therapy Ban

On March 27, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Tingley v. Ferguson. In the case, the U.S. 9th Circuit Court of Appeals denied an en banc rehearing of a 3-judge panel's decision rejecting free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors. Conversion therapy encourages change in sexual orientation or gender identity. (See prior posting). SCOTUSblog  reports on the petition for review.

Recent Articles of Interest

From SSRN:

• Carolyn Sharp, A Heart-Centered Defense, (March 18, 2023).
• Miranda McGowan, The Democratic Deficit of Dobbs, (Loyola University Chicago Law Journal, (forthcoming 2023)).
• Deborah Hellman, Defining Disparate Treatment: A Research Agenda for Our Times, (Indiana Law Review, Forthcoming).
• Francesca Laguardia, Pain That Only She Must Bear: On the Invisibility of Women in Judicial Abortion Rhetoric, (Journal of Law and the Biosciences, Volume 9, Issue 1, January-June 2022, lsac003).
• Carlos A. Ball, Balancing Abortion, (Santa Clara Law Review, Vol. 63, 2023, Forthcoming).
• Gerard Letterie & Dov Fox, Legal Personhood and Frozen Embryos: Implications for Fertility Patients and Providers in Post-Roe America, (Journal of Law and the Biosciences, Vol. 10 (2023)).
• Kyle Velte, The Supreme Court's Gaslight Docket (March 30, 2023).
• Sara Friedman & Chao-Ju Chen, Same-Sex Marriage Legalization and the Stigmas of LGBT Co-Parenting in Taiwan, (Law & Social Inquiry, 1-29 (2022).
• Shea Esterling, The Journey Home: The Repatriation of the Maaso Kova, (27 American Society of International Law Insights 3 (March 2023)).
• Rosemary Teele Langford & Miranda Webster, The Australian Charitable Incorporated Organisation: A Reform Proposal, ((2023) 39 Company and Securities Law Journal 347).

From SmartCILP:

• M. Mehdi Ali, Shi'i Legal Discourses in Iraq and Lebanon: Exploring the Intersection of Juristic Rulings and State Legal Regimes, 45 Loyola Los Angeles International & Comparative Law Review 249-280 (2022).

Biden Sends Greetings on Orthodox Christian Easter

President Biden today issued a Statement (full text) sending warm wishes from himself and the First Lady to those in the Orthodox Christian community celebrating Easter today. He said in part:

 Today, as we pray for all those suffering from war and persecution, we also give thanks for people around the world who are binding up the wounds of the injured and working to protect the dignity of all—including by welcoming refugees and standing up for human rights....

During this sacred season and the years ahead, we look forward to continuing to work together to build a more just and compassionate world for all God’s children.

WAPO Says Judge Hid His Authorship of Anti-Abortion, Anti-LGBT Law Review Article

Washington Post reported today that Texas federal district court judge Matthew Kacsmaryk who issued last week's controversial opinion finding the FDA's approval of the abortion medication mifepristone invalid removed his name as author of a pending law review article as his nomination to the federal bench became imminent.  According to the Post:

As a lawyer for a conservative legal group, Matthew Kacsmaryk in early 2017 submitted an article to a Texas law review criticizing Obama-era protections for transgender people and those seeking abortions.

The Obama administration, the draft article argued, had discounted religious physicians who “cannot use their scalpels to make female what God created male” and “cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children.”

But a few months after the piece arrived, an editor at the law journal ... received an unusual email: ... Kacsmaryk, who had originally been listed as the article’s sole author, said he would be removing his name and replacing it with those of two colleagues at his legal group, First Liberty Institute....

The article, titled “The Jurisprudence of the Body,” was published in September 2017 by the Texas Review of Law and Politics, a right-leaning journal that Kacsmaryk had led as a law student at the University of Texas. But Kacsmaryk’s role in the article was not disclosed, nor did he list the article on the paperwork he submitted to the Senate in advance of confirmation hearings....

A spokesman for First Liberty ... said that Kacsmaryk’s name had been a “placeholder” on the article and that Kacsmaryk had not provided a “substantive contribution.”....

The full Post article has additional details.

Colorado Bars Abortion Pill Reversal; Suit Challenges New Law

Yesterday, Colorado Governor Jared Polis signed into law SB23-190 (full text). The new law makes it a deceptive trade practice to advertise that a clinic offers abortions, referrals for abortions or emergency contraceptives when it does not offer these services.  It also provides that it is unprofessional conduct for a healthcare provider to prescribe or administer medication abortion reversal, unless by Oct. 1 the state medical, pharmacy and nursing boards all have in effect rules finding that it is a generally accepted standard of practice to engage in medication abortion reversal.

On the same day the bill was signed, an anti-abortion Catholic healthcare clinic filed suit in a Colorado federal district court challenging the new law's provisions on medication abortion reversal as violating its 1st and 14th Amendment rights. The complaint (full text) in Bella Health and Wellness v. Weiser, (D CO, filed 4/14/2023), alleges that the law violates its Free Exercise rights because it is neither neutral nor generally applicable, saying in part:

[A]bortion pill reversal is nothing more than supplemental progesterone. And there are a multitude of off-label uses of progesterone, which has been widely prescribed to women—including pregnant women—for more than 50 years.

... Yet SB 23-190 makes no attempt to regulate—much less outright prohibit— the off-label use of progesterone in any other circumstance. That omission renders SB 23-190 not generally applicable.

The complaint also alleges that the law violates their free speech rights and patients' right to medical treatment.  According to Becket Law, the district court quickly granted Bella Health temporary emergency relief and set a hearing on a preliminary injunction while litigation proceeds for April 24. CPR News reports on the lawsuit.

Two Justices Say Iowa Should Adopt Ministerial Exception Doctrine

In Konchar v. Pins, (IA Sup. Ct., April 14, 2023), the Iowa Supreme Court affirmed a trial court's dismissal of fraud, defamation and breach of contract claims by the former long-time principal of a Catholic school.  The court said in part:

Ultimately ... Konchar’s defamation claim is about whether a Catholic priest was justified in deciding that Konchar should no longer serve as principal at a Catholic school. But the district court believed that this kind of inquiry would run afoul of the First Amendment’s Free Exercise Clause.... In fact, the district court specifically found that the First Amendment precludes inquiries by “a civil court” into “the decision of whether Konchar was suitable for the role of Principal at St. Joseph’s.” And Konchar’s briefs do not challenge this conclusion. So we presume without deciding that the district court was correct, and we decline to reverse.

Justice Waterman, joined by Justice McDermott, filed a concurring opinion saying in part:

I write separately to confirm the majority opinion leaves the door open to formally apply the ministerial exception in our state. I would apply that exception in this case as an alternative ground to affirm dismissal of all tort claims asserted by Phyllis Konchar related to her termination as principal and “spiritual leader” of this church-operated private school. The ministerial exception better protects the autonomy of religious organizations guaranteed under the First Amendment to choose who ministers their faith and spares churches, dioceses, priests, and bishops the entanglement with costly civil litigation this case exemplifies. The extensive discovery, depositions, and trial spanning two weeks that these church defendants endured could have been avoided by a prompt dispositive motion under the ministerial exception long recognized by the United States Supreme Court, federal circuit courts, and other state courts.

Supreme Court Grants 5-Day Administrative Stay of Texas District Court's Abortion Pill Order

U.S. Supreme Court Justice Samuel Alito this afternoon in Food & Drug Administration v. Alliance for Hippocratic Medicine, (Docket No. 22A902, April 14, 2023), granted a 5-day administrative stay of a Texas federal district court's order invalidating the FDA's approval of the abortion drug mifepristone. Any response to the application for a lengthier stay must be filed by 11:59 pm April 18. Any response to that filing must be submitted by noon the next day. CNN reports on developments.

UPDATE: Here is the White House's reaction to the Court's stay.

Supreme Court Asked to Stay Abortion Pill Rulings

Today both the FDA and the manufacturer of the abortion drug mifepristone filed with the U.S. Supreme Court applications for a stay of the Texas federal district court's Order invalidating the FDA's approval of the drug. The 5th Circuit Court of Appeals allowed part of the district court's order to remain in effect. Today's Applications for a Stay were filed with Justice Alito, the Justice assigned by the Court to receive emergency applications from the 5th Circuit.  Here is the filing by Danco Laboratories, and here is the Solicitor General's filing on behalf of the FDA.  Axios reports on the filings.

Dismissal Recommended in Healthcare Worker's Claim for Religious Exemption from Vaccine Mandate

In Bolonchuk v. Cherry Creek Nursing Center/ Nexion Health, (D CO, April 12, 2023), a Colorado federal magistrate judge recommended dismissing a suit by a former nursing home healthcare employee whose 18-year long employment was terminated after she refused on religious grounds to comply with her employer's Covid vaccine mandate for healthcare workers. A state regulation required the vaccine mandate. The court rejected plaintiff's 1st Amendment claim because defendant was not alleged to be a state actor.  It also rejected her claim that Title VII required a religious accommodation, saying in part:

Defendant would have had to violate a state law (i.e., the regulation mandate) in order to accommodate Plaintiff, clearly establishing an undue hardship.

Florida Enacts More Restrictive Abortion Law

Yesterday, Florida Governor Ron DeSantis signed SB 300 (full text) which bans abortions after 6 weeks of pregnancy, amending the state's prior law that permitted abortions until 15 weeks.  Under the new law, exceptions remain for saving the mother's life or preventing imminent substantial and irreversible physical impairment of a major bodily function other than a psychological condition. There are also exceptions before the third trimester where the fetus has a fatal fetal abnormality, and during the first 15 weeks in cases of documented rape, incest or human trafficking.  A press release from the Governor's office announcing the signing or the said in part:

While other states like California and New York have legalized infanticide up until birth, Governor DeSantis has enacted historic measures to defend the dignity of human life and transform Florida into a pro-family state.

The White House issued a statement sharply criticizing the bill.  CNN reports on the new law.

5th Circuit Allows Part of Stay on Abortion Pills To Remain; U.S. Will Appeal to Supreme Court

 In Alliance for Hippocratic Medicine v. Food & Drug Administration,(5th Cir., April 12, 2023), the U.S. 5th Circuit Court of Appeals granted a partial stay of a Texas federal district court's decision invalidating the FDA's approval of the abortion drug mifepristone. The appeals court held that the statute of limitations barred a challenge to the FDA's initial approval of the drug in 2000. However, the court refused to stay the district court's disapproval of changes the FDA made in 2016.  Those changes significantly reduced prior restrictions on the administration and use of the drug. The court said in part:

Here, applicants have failed to carry their burden at this preliminary stage to show that FDA’s actions were not arbitrary and capricious. We have two principal concerns in that regard. First, FDA failed to “examine the relevant data” when it made the 2016 ... changes.... That’s because FDA eliminated ... safeguards based on studies that included those very safeguards....

Second, the 2016 ... Changes eliminated the requirement that non-fatal adverse events must be reported to FDA. After eliminating that adverse-event reporting requirement, FDA turned around in 2021 and declared the absence of non-fatal adverse-event reports means mifepristone is “safe.”... This ostrich’s-head-in-the-sand approach is deeply troubling.... It’s unreasonable for an agency to eliminate a reporting requirement for a thing and then use the resulting absence of data to support its decision.

Reuters reports on the decision. 

Earlier today, the Justice Department announced that it would seek emergency relief from the U.S. Supreme Court.

FDA Seeks Stay Pending Appeal of Order Ending Approval of Mifepristone

The Justice Department on behalf of the U.S. Food and Drug Administration yesterday filed an Emergency Motion for a Stay Pending Appeal (full text of motion) in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, (5th Cir., filed 4/10/2023). The motion seeks a stay while an appeal is heard by the 5th Circuit of a Texas federal district court decision setting aside the 2000 FDA order approving doctors prescribing mifepristone for medical abortions. The FDA argues in part:

The [district] court repeatedly characterizes mifepristone as unsafe. But over the last two decades, the available evidence conclusively demonstrates that mifepristone is safe under the approved conditions of use. More than five million women have used mifepristone to terminate their pregnancies in the United States.... Mifepristone is also approved in dozens of other countries..... The literature reflects “exceedingly rare” rates of serious adverse events.

AP reports on the appeal.

185 Methodist Churches in Georgia Sue Parent Body Seeking Disaffiliation

 At the end of last month, 185 Methodist congregations in Georgia filed suit in a Georgia state trial court against their parent body and its officials.  The congregations are attempting to disaffiliate from the North Georgia Conference of the United Methodist Church pursuant to a provision (❡2553) added to the Church's Book of Discipline in 2019.  The provision, which applies to disaffiliations completed by the end of 2023, allows disaffiliating congregations to keep their real and personal property.  The complaint (full text) in Carrollton First United Methodist Church, Inc. v. Trustees of the North Georgia Conference of the United Methodist Church, Inc., (GA Superior Ct., filed 3/30/2023), alleges in part that: 

Defendants have conspired to "run out the clock" on Plaintiffs ability to utilize ❡2553 by a combination of ultra vires actions, fraudulent misrepresentations, and promises which they have failed to keep so that, unless this court intervenes, Plaintiffs cannot and indeed will not be allowed to fulfill the legislated requirements of ❡2553 in time to meet the sunset date of 12/31/23.

The complaint also alleges that the parent body is no longer allowing disaffiliating churches a credit for their share of a $23 million pension plan reserve fund.

In introductory paragraphs, the complaint contends:

This case can be resolved in accordance with secular Georgia law ... without interfering with the separation of church and state.... Defendants cannot be heard to contest this point, as Defendants have availed themselves of the same principles recently in a substantially similar context in this very court....

UM News, reporting on the lawsuit, says in part:

The lawsuit ... involves more than a quarter of the North Georgia Conference’s nearly 700 congregations. 

It’s also the most congregations that have banded together in a single lawsuit since the denomination began undergoing a slow-motion separation after decades of intensifying debate over LGBTQ inclusion.

House Committee Seeks Documents on FBI Interest in Radical Traditionalist Catholic Extremists

Yesterday, U.S. House Judiciary Committee chairman Jim Jordan issued a subpoena to FBI Director Christopher Wray seeking documents related to the FBI's attempt to monitor possible violent extremism among radical-traditionalist Catholics.  In an April 10 Committee Press Release (full text), the Committee said in part:

From this limited production, it is apparent that the FBI, relying on information derived from at least one undercover employee, sought to use local religious organizations as “new avenues for tripwire and source development.”... 

The FBI similarly noted two other opportunities to engage in outreach with religious institutions in the Richmond area, citing a desire “to sensitize the congregation to the warning signs of radicalization and enlist their assistance to serve as suspicious activity tripwires.” This outreach plan even included contacting so-called “mainline Catholic parishes” and the local “diocesan leadership.” 

The subpoena cover letter (full text) says in part:

The Committee on the Judiciary is conducting oversight of the Federal Bureau of Investigation’s (FBI) handling of domestic violent extremism investigations against Catholic Americans and its effect on protected First Amendment activity....

We have repeatedly sought information from the FBI relating to a January 23, 2023 document generated by the Richmond Field Office entitled “Interest of Racially or Ethnically Motivated Violent Extremists in Radical-Traditionalist Catholic Ideology Almost Certainly Presents New Mitigation Opportunities”.... In this document, the FBI purported to categorize Catholic Americans based on theological distinctions and relied on the Southern Poverty Law Center to suggest that certain kinds of Catholic Americans may be domestic terrorists.

A report by Bloomberg on the subpoena adds:

There was no immediate response from Wray, but he told senators last month that the document “does not reflect FBI standards” and the bureau “took steps immediately to withdraw it and remove it from FBI systems.”

“We do not conduct investigations based on religious affiliation or practices, full stop,” Wray told the Senate Intelligence Committee.

7th Circuit: Accommodating Teacher's Religious Beliefs as To Transgender Students Imposed Undue Hardship

 In Kluge v. Brownsburg Community School Corp., (7th Cir., April 7, 2023), the U.S. 7th Circuit Court of Appeals in a 2-1 decision upheld a school's dismissal of a teacher who refused on religious grounds to comply with the school policy of calling transgender students by their names registered in the school's official database. In a 79-page majority opinion rejecting the teacher's Title VII claims, the court said in part:

After Brownsburg initially accommodated Kluge’s request to call all students by their last names only, the school withdrew the accommodation when it became apparent that the practice was harming students and negatively impacting the learning environment for transgender students, other students both in Kluge’s classes and in the school generally, as well as the faculty. The district court granted summary judgment in favor of the school after concluding that the undisputed evidence showed that the school was unable to accommodate Kluge’s religious beliefs and practices without imposing an undue hardship on the school’s conduct of its business of educating all students that entered its doors. The district court also granted summary judgment in favor of Brownsburg on Kluge’s retaliation claim. We agree that the undisputed evidence demonstrates that Kluge’s accommodation harmed students and disrupted the learning environment. Because no reasonable jury could conclude that harm to students and disruption to the learning environment are de minimis harms to a school’s conduct of its business, we affirm.

Judge Brennan dissented as to the reasonable accommodation claim. In a 54-page dissent, he said in part:

Kluge’s religious accommodation claim comes down to a fact-intensive inquiry: Did the School District demonstrate that Kluge’s gender-neutral accommodation of calling all students by only their last names causes undue hardship—that is, more than a de minimis cost? The majority opinion says “yes,” but it sidesteps Kluge’s countervailing evidence, fails to construe the record in his favor, and overlooks credibility issues on both sides, which are reserved for resolution by the factfinder. 

... [W]ithout supporting authority, my colleagues hold that the undue hardship inquiry looks only to evidence within the employer’s knowledge at the time of the adverse employment decision.... Considering the entire record, there is a genuine issue of material fact on undue hardship, which we should remand for trial.

Reuters reports on the decision.

Recent Articles of Interest

From SSRN:

• Sanchaali Chakravorty, Can the Vatican Really Be Called a "State"?, (March 21, 2023).
• Mordechai (Mordy) Sahler, Is This a Real Problem? – HOA Rules that Interfere with the Practice of Religion, (CSLR Research Paper No. 1.2023-ESS (2023).
• Robert Kahn, The Hijab Row in Karnataka, Egalitarian Uniformity and the Right to Adorn One’s Face, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 23-01 (2023).
• Suryapratim Roy & Rahul Sambaraju, Hindu Zion: The Politics of Constitutional Accommodation, (Mark Tushnet and Dimitry Kochenov (eds), Research Handbook on the Politics of Constitutional Law (Edward Elgar 2023)).
• Reva B. Siegel, How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization, (Houston Law Review, Vol. 60, 2023).

From SmartCILP:

• Javid Rehman, Revisiting the Jihad Ideology in Islamic International Law and Its Appropriation by Nonstate Actors [Abstract], 44 Human Rights Quarterly 417-440 (2022).
• Niaz A. Shah, The Application of Human Rights Treaties in Dualist Muslim States: The Practice of Pakistan, 44 Human Rights Quarterly 257-285 (2022).
•  Rabea, Benhalim, Oppression in American, Islamic, and Jewish Private Law. 94 University of Colorado Law Review 149-216 (2023).

Deed Restriction Does Not Violate Establishment Clause

In Hilo Bay Marina, LLC v. State of Hawaii, (HI Cir. Ct., March 21, 2023), a Hawaii trial court dismissed a suit seeking to void a deed restriction.  In 1922, the land at issue was conveyed by the Territory of Hawaii to the Church of Jesus Christ of Latter Day Saints, with a deed restriction that the land could only be used for church purposes. Under the restriction, the land would revert to Hawaii if it was used for non-church purposes.  In 2000, the land was conveyed to the Hilo Bay Marina, presumably triggering the reversion. Fifteen years later it was conveyed by the Marina to Keaukaha Ministry.  Now the Marina and the Ministry sue to void the deed restriction, among other things contending that it violates the Establishment Clause of the U.S. and the Hawaii Constitutions.  The court rejected the claim citing the U.S. Supreme Court's decision in Kennedy v. Bremerton Schol District, and saying in part:

The Establishment Clause "must be interpreted 'by reference to historical practices and understandings.'"...

The practice of selling government lands with deed restrictions was an early form of use-zoning and is interpreted as a historical practice of zoning....

Even if Article I, §4 of the Hawai'i Constitution is not coextensive with the Establishment Clause of the First Amendment..., the deed restriction passes constitutional muster under Lemon v. Kurtzman....

The deed restriction allows for any religious organization to benefit from the property, so it does not endorse or approve one religion over another....

The surveillance and monitoring required to enforce the deed restriction do not present excessive entanglement because they are no different than that of what is required to enforce any other zoning regulation.

White House Issues Easter Greetings

Today is Easter. In honor of the holiday, President Biden issued a Statement (full text) which says in part:

Jill and I join Christians around the world in celebrating Easter Sunday, a day of hope and joy, renewal and rebirth....

Today, we hold close the Easter message that nothing – not even death – can match the power of faith, hope, and love. And we remember Jesus’ sacrifice and recommit ourselves to love God with all our hearts and to love our neighbors as ourselves, embracing His call to treat one another with compassion.

Last week, the White House also issued a Release (full text) giving extensive details for this year's annual Easter Egg Roll. It says that "In total, approximately 30,000 people will take part in this year’s Easter “EGGucation” Roll...."

Ministerial Exception Doctrine Requires Dismissal of Hostile Work Environment Claims

In Montgomery v. St. John's United Church of Christ, (OH App., April 6, 2023), an Ohio state appellate court held that the ministerial exception doctrine requires dismissal of plaintiffs' hostile work environment claims. In the case, the church's minister and a pastoral assistant contended that they were sexually harassed by a lay leader of the church, and that their employment was terminated because of their resistance to this conduct. The court said in part:

The [trial] court found that due to the nature of relationships of the parties involved and the subject matter of the conversations and communications between them, it could not “adjudicate the sexual harassment claims of Appellants without distinguishing between Appellee Martin as a parishioner in the congregation seeking counsel, guidance, and comfort from his pastor and pastoral assistant, and Martin as a church officer engaging in harassing or hostile behavior.”... The court found that it could not make this distinction or determination without “delving deeply into the relationships and expectations of the parties and their church and their faith.” ... 

We agree that this is precisely the kind of state inquiry into church employment decisions that the First Amendment forbids....

Contradictory Orders From 2 District Court on FDA's Approval of Abortion Pill

In Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration, (ND TX, April 7, 2023), a Texas federal district court held that plaintiffs have a substantial likelihood of success on their claim that the FDA's 2021 action allowing the abortion drug mifepristone to be distributed by mail violates the Comstock Act and thus was also in violation of the Administrative Procedure Act. The court also concluded that the FDA's approval in 2000 of doctors prescribing mifepristone violated the agency's rules for approval of new drugs. The FDA rules (Subpart H) relied upon to approve the drug apply to "new drug products that have been studied for their safety and effectiveness in treating serious or life-threatening illnesses and that provide meaningful therapeutic benefit to patients over existing treatments...."  The court said in part:

[T]o satisfy Subpart H, FDA deemed pregnancy a “serious or life-threatening illness[]” and concluded that mifepristone “provide[d] [a] meaningful therapeutic benefit to patients over existing treatments.” See 21 C.F.R. §§ 314.500; 314.560. FDA was wrong on both counts....

Pregnancy is a normal physiological state most women experience one or more times during their childbearing years — a natural process essential to perpetuating human life. Defendants even admit pregnancy is not an “illness.”...

FDA also exceeded its authority under the second requirement of Subpart H. In addition to treating a serious or life-threatening illness, chemical abortion drugs must also provide a “meaningful therapeutic benefit” to patients over surgical abortion... [T]his cannot be the case because chemical abortion drugs do not treat “serious or life-threatening illnesses” — a prerequisite to reaching the second requirement.... Similarly, chemical abortion drugs cannot be “therapeutic” because the word relates to the treatment or curing of disease.

The court stayed the FDA's approval of mifepristone, but stayed the effectiveness of its order for 7 days so the government can appeal to the U.S. 5th Circuit Court of Appeals for emergency relief.  President Joe Biden issued a statement (full text) criticizing the court's decision and reporting that the Justice Department has already filed an appeal.  Vice President Kamala Harris also issued a statement (full text) criticizing the decision.

Meanwhile, in State of Washington v. U.S. Food & Drug Administration, (ED WA, April 7, 2023), a Washington federal district court issued a preliminary injunction barring the FDA from "altering the status quo and rights as it relates to the availability of Mifepristone" in the 17 states and District of Columbia that are plaintiffs in the case. Plaintiffs are challenging certain requirements for prescribing mifepristone added in 2023.

Seattle Times reports on the decisions.

Maryland Attorney General Releases Report on Child Sexual Abuse in Baltimore Archdiocese

Maryland's Attorney General today released a Report on Child Sexual Abuse in the Archdiocese of Baltimore (full text). The 463-page report details abuse by each of 156 individuals , with the names of ten of the individuals redacted. The Report says in part:

As the case descriptions in this Report make clear, from the 1940s through 2002, over a hundred priests and other Archdiocese personnel engaged in horrific and repeated abuse of the most vulnerable children in their communities while Archdiocese leadership looked the other way. Time and again, members of the Church’s hierarchy resolutely refused to acknowledge allegations of child sexual abuse for as long as possible. When denial became impossible, Church leadership would remove abusers from the parish or school, sometimes with promises that they would have no further contact with children. Church documents reveal with disturbing clarity that the Archdiocese was more concerned with avoiding scandal and negative publicity than it was with protecting children.

WBAL's news story has additional details.

Biden Marks Passover by Announcing Upcoming Release of National Strategy to Combat Antisemitism

Passover begins this evening. To mark the holiday, President Biden published an Op Ed (full text) on CNN (also posted on the White House website) titled "To fight antisemitism, we must remember, speak out and act". In it he announced that the federal government will be releasing the first-ever national strategy to counter antisemitism.  In the op-ed, after recounting a number of instances of antisemitism, the President went on to say in part:

These acts are unconscionable and despicable. They carry in them terrifying echoes of the worst chapters in human history. And they’re not only a strike against Jews, they’re also a threat to other minority communities and a stain on the soul of our nation.

To the Jewish community, I want you to know that I see your fear, your hurt and your concern that this venom is being normalized.... 

Rest assured that I am committed to the safety of the Jewish people. I stand with you. America stands with you. Under my presidency, we continue to condemn antisemitism at every turn. Failure to call out hate is complicity. Silence is complicity. And we will not be silent....

But government alone cannot root out antisemitism and hate. All Americans, including businesses and community leaders, educators, students, athletes, entertainers and influencers must help confront bigotry in all its forms. We must each do our part to create a culture of respect in our workplaces, in our schools, on our social media and in our homes.

IRS Correctly Denied Non-Profit Ruling to Church That Promoted Use of Ayahuasca

In Iowaska Church of Healing v. United States, (D DC, March 31, 2023), the D.C. federal district court upheld the IRS's refusal to grant §501(c)(3) non-profit status to a church that promotes the religious use of Ayahuasca, a tea brewed from plants containing a drug that is illegal under the federal Controlled Substances Act. The church, which has 20 members located around the world, applied to the Drug enforcement Administration for a religious exemption from CSA provisions. After four years, that application is still pending.  The court said in part:

The IRS correctly concluded that, until plaintiff obtains a CSA exemption, its promotion and use of Ayahuasca remains illegal under federal law, and plaintiff is neither organized nor operated exclusively for public purposes. As a result, plaintiff is not entitled to an exemption from income tax under section 501(c)(3).

Plaintiff had argued that the Supreme Court's decision in the O'Centro case entitled it to a tax exemption.  The court responded:

[T]he holding in O Centro stands only for the principle that obtaining a CSA exception for religious use of Ayahuasca is possible, if such use is in fact a sincere religious exercise. The flaw in plaintiff’s reliance on O Centro here, is that plaintiff has still not obtained that CSA exception—and whether plaintiff’s showing made to the DEA is sufficient to qualify for this exemption remains an open question that is not before this Court. O Centro simply does not stand for plaintiff’s asserted holding, that all Ayahuasca use is necessarily religious, and that case certainly does not establish that all organizations making use of Ayahuasca are entitled to an exemption from income tax, which is the issue pending here.

The court also held that the church lacks standing to challenge the denial of non-profit status as a violation of RFRA because "plaintiff’s inability to use Ayahuasca does not stem from the IRS Determination Letter, but rather from the CSA’s ban on using DMT, and plaintiff’s lack of a CSA exemption thus far."

Suit Challenges Oregon Requirement That Adoptive Parents Support Child's Sexual Orientation and Gender Identity

Suit was filed this week in an Oregon federal district court challenging a rule of the state's Department of Human Services that persons seeking to adopt children must agree to accept and support the sexual orientation and gender identity of any child placed with them. The complaint (full text) in Bates v. Pakseresht, (D OR, filed 4/3/2023), contends that the rule violates the free expression, free exercise and equal protection rights of plaintiff whose Christian religious beliefs do not permit her to comply with this requirement.  The complaint reads in part:

Under this rule, caregivers must agree to use a child’s preferred pronouns, take a child to affirming events like Pride parades, or sign the child up for dangerous pharmaceutical interventions like puberty blockers and hormone shots—no matter a child’s age, no matter whether a child actually desires these things, and no matter how deeply these requirements violate the caregiver’s religious convictions.

This puts Jessica in a bind. Like countless people of faith, Jessica believes that our biological sex carries spiritual significance for who we are and how we should act. Jessica cannot affirm that a male is or should try to be female or vice  versa....

... Because she will not agree to use a hypothetical child’s preferred pronouns or facilitate a hypothetical gender transition, she cannot even adopt a newborn who has no concept of, much less a desire for, these things.

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

9th Circuit: Jehovah's Witness' Suit Over State-Employee Loyalty Oath Is Remanded

In Bolden-Hardge v. Office of the California State Controller, (9th Cir., April 3, 2023), the U.S. 9th Circuit Court of Appeals reversed and remanded a district court's dismissal of a suit by a Jehovah's Witness who challenged California's refusal to allow her to add a paragraph to the state-employee loyalty oath specifying that by signing it she is not giving up the right to exercise her religion which requires her primary loyalty be to God. Reversing dismissal of plaintiff's Title VII claims, the court said in part:

California’s apparent rationale for the oath requirement is to ensure that if an oath taker’s religion ever comes into conflict with the federal or state constitutions, religion must yield....

[T]o exempt the Controller’s Office from a federal accommodation requirement solely because the requested accommodation would violate state law would essentially permit states to legislate away any federal accommodation obligation....

Bolden-Hardge alleges a disparate impact... She contends that her religious beliefs are “consistent with [those] of other Jehovah’s Witnesses,” who also believe that their faith forbids them from swearing primary allegiance to any human government.... [T]his belief is in tension with the loyalty oath requirement....

The loyalty oath is a business necessity, the Controller’s Office argues, because public employees must be “committed to working within and promoting the fundamental rule of law while on the job.”... It asserts that allowing addenda that indicate an oath-taker’s primary loyalty to God would render the oath meaningless and undermine critical state interests. This assertion may well prove true and, if so, the Controller’s Office may be able to defeat Bolden-Hardge’s disparate impact claim at a later stage of the litigation. But this is not apparent from the face of her Complaint,,,,

Catholic Media Group Can Move Ahead with Free Speech and Assembly Claims

In St. Michael's Media, Inc. v. Mayor and City Council of Baltimore, (D MD, March 31, 2023), a Maryland federal district court in an 80-page opinion allowed a conservative media organization that often criticizes the current leadership of the Catholic Church to move ahead with free speech and freedom of assembly claims against the city of Baltimore and the management of a city-owned concert venue.  The claims grew out of the cancellation of a contract for plaintiff to hold a conference and prayer rally to coincide with the Fall General Assembly of the U.S. Conference of Catholic Bishops. The court said in part:

St. Michael’s sufficiently alleges viewpoint-based discrimination.... St. Michael’s alleges that defendants cancelled the rally “specifically because they disapproved of the content and viewpoint of the speech that was expected to occur at the rally.”... St. Michael’s asserts that, when Voris spoke with Shea regarding the cancellation, “Shea told Mr. Voris that his office had received reports that St. Michael’s had ‘ties to the January 6 [2021] riot’ at the Capitol building in Washington, D.C.”.... As I acknowledged in granting the preliminary injunction ..., “invocation of the events of January 6, 2021, as horrifying as they were, cannot, without more, serve as a license for the City to dispense with its obligations under the First Amendment.”

The court however dismissed plaintiff's free exercise claim, saying in part:

[T]he Second Amended Complaint “does not raise any plausible suspicion”—even a slight suspicion—that plaintiff’s religious exercise was the “object” of the City’s decision to cancel the rally.

It also dismissed plaintiff's Establishment Clause claim, saying in part:

The only allegation in the SAC asserting City support for the USCCB is that “Shea unilaterally canceled St. Michael’s [sic] contract with SMG because the USCCB told him to.”...  [T]his still does not exhibit a religious preference. St. Michael’s bases this assertion on its belief that “Shea was told by USCCB members that the content of speech during St. Michael’s [sic] rally would be uncomfortable or offensive for the attendants of its Fall General Assembly to hear.”... Yet, the only religious element of the rally identified by St. Michael’s is praying the Rosary. There are no facts alleged to support the claim that defendants chose one religious group over another.

North Dakota Enacts A State RFRA

Last week, North Dakota Governor Dout Burgum signed House Bill No. 1136 (full text), North Dakota's version of the Religious Freedom Restoration Act. The new law provides in part:

... [A]state or local government entity may not:

a. Substantially burden a person's exercise of religion unless applying the burden to that person's exercise of religion in a particular situation is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling government interest;

b. Treat religious conduct more restrictively than any secular conduct of reasonably comparable risk; or

c. Treat religious conduct more restrictively than any comparable secular conduct because of alleged economic need or benefit.

ADF issued a press release announcing the signing of the bill. [Thanks to Greg Chaufen for the lead.]

Recent Articles of Interest

From SSRN:

• Carlo A. Pedrioli, Cakes and Communication: A Trans‐Atlantic Conversation Between the U.S. And U.K. Supreme Courts on the Tension Between Anti‐Discrimination Law and the Freedoms of Religion and Speech, (7 U. Bologna L. Rev. 183 (2023)).
• Debbie Kaminer, Religious Accommodation in the Workplace, Undue Hardship, and the Impact on Coworkers, (March 20, 2023).
• Patrick Parkinson, Gender Identity Discrimination and Religious Freedom, (Journal of Law and Religion, Vol. 38, No. 1, 2023).
• Raymond Caraher, Reproductive Injustice? A County-Level Analysis of the Impact of Abortion Restrictions on Abortion Rates, (Political Economy Research Institute Working Paper No. 573 (March 2023)).
• Allie Zunski, Ducking the System: Examining the Efficacy of Bounty Hunting Statutes that Stifle the Free Exercise of Constitutional Rights, (William & Mary Bill of Rights Journal, Vol. 31, No. 1, 2022).
• Kenneth Robert Davis, A Farewell to Harms: Rethinking the Injury Requirements of Title VII,   (Harvard Journal on Legislation, Vol. 61, 2024).

From SmartCILP:

• Joshua E. Kastenberg, Commander-in-Chief Authority and the Religious Rights of Service Members in Crisis Times: The Vaccine Mandate as a Call for Reincorporating the Standing Army Fears in Jurisprudence and Depoliticizing the Bench, 83 Louisiana Law Review 1-58 (2022).

Muslim Corrections Officer Applicant Can Move Ahead With 1st Amendment and Title VII Claims

In Talukder v. State of New York, (SD NY, March 31, 2023), a New York federal district court allowed a Sunni Muslim applicant to the New York Department of Corrections Training Academy to move ahead with his 1st Amendment free exercise claim as well as his Title VII failure to accommodate and disparate treatment claims.  Plaintiff sought to wear a 3-inch beard for religious reasons, while the Academy was unwilling to permit any beard longer than one-eighth of an inch. Finding a free exercise violation was adequately alleged, the court said in part:

DOCCS allows numerous uniformed staff to grow beards for secular reasons, while simultaneously denying trainees the same accommodation on religious grounds....

The justification that Defendants proffer for the ban—that “all trainees must pass a respirator fit test and applicable respirator training to become certified correctional officers,” ...—raises a fact-intensive inquiry that fails to justify dismissal at this stage. The Complaint raises a plausible inference that a policy requiring all trainees to be clean-shaven or wear facial hair no longer than 1/8 of an inch in order to pass a respiratory fit-test is not narrowly tailored to advance the goal of preparing trainees to become corrections officers—particularly given that many of those officers will never have to wear a respirator at all....

Maker of Religious-Themed Military Dog Tags Can Move Ahead with 1st Amendment Claims Against DoD

In Shields of Strength v. U.S. Department of Defense, (ED TX, March 31, 2023), a Texas federal district court allowed a company that manufactures military personnel "dog tags" to move ahead with certain of its 1st Amendment claims against the military that sought to prevent the company from producing dog tags with Biblical or other religious references near symbols or phrases that the military had registered for trademark protection. DoD regulations provide:

DoD marks may not be licensed for any purpose intended to promote ideological movements, sociopolitical change, religious beliefs (including non-belief), specific interpretations of morality, or legislative/statutory change.

 The court said in part:

If the military does not have meaningful conditions and controls on the licensing of its trademarks, the military may be deemed to have opened a limited public forum for private expression using those marks.... If a public forum were opened, disallowing views that promote religious beliefs would seem a prima facie case of unconstitutional viewpoint discrimination. So defendants’ motion to dismiss the viewpoint-discrimination claims ... is denied....

For purposes of the religious-exercise claims ... the court assumes that any marks not licensed for use on Shields’ dog tags are valid trademarks, used in a way likely to confuse consumers, without a defense to liability (other than religious-exercise rights). The question under Counts 2 and 8 is whether the military’s failure to license that usage violates the Free Exercise Clause or RFRA. 

The answer turns on the same categorization called for by the free-speech challenge.... If the military’s grants of trademark licenses are government speech, then any burden from the military’s licensing choice is justified by the compelling governmental interest that animates trademark law generally and, specifically, a trademark owner’s liberty to decide and control its own vision of a mark’s reputation....

On the other hand, if the military’s program here is so unrestrictive that the military has surrendered any licensing voice—making its licensing program a limited public forum for private speech using the marks—that deficiency also negates the compelling public interest for denying Shields’ ability to use the marks.... 

However, the court refused to issue a preliminary injunction because it found no substantial likelihood of success on the claims.