Religion Clause: July 2023

Monday, July 31, 2023

6th Circuit Hears Oral Arguments In Wedding Photographer Case

On Friday, the U.S 6th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Chelsey Nelson Photography LLC v Louisville Jefferson Co KY. In the case, a Kentucky federal district court held that Louisville's public accommodation ordinance violates the free speech rights of a Christian wedding photographer who has moral and religious objections to same-sex marriages. (See prior posting.) Louisville Public Media reports on the oral arguments.

New Ukrainian Law Moves Christmas To EDec. 25, Rejecting Russian Orthodox Date

AP reports that last Friday. Ukrainian President Volodymyr Zelenskyy signed a law that moves the date on which Ukraine will celebrate Christmas from January 7 (the date observed by the Russian Orthodox Church) to December 25. According to AP:

The explanatory note attached to the law said its goal is to “abandon the Russian heritage,” including that of “imposing the celebration of Christmas” on Jan. 7. It cited Ukrainians’ “relentless, successful struggle for their identity” and “the desire of all Ukrainians to live their lives with their own traditions, holidays,”....

The law also moves the dates for two other Ukrainian patriotic holidays.

Sunday, July 30, 2023

Suit Challenges Ohio Reproductive Freedom Amendment Ballot Issue

A legal action was filed Friday in the Ohio Supreme Court seeking to disqualify from the November ballot a proposed Reproductive Freedom amendment to the state constitution which has been certified for inclusion on the ballot by the state Secretary of State. The complaint (full text) in Giroux v. Committee Representing Petitioners, (OH Sup. Ct., filed 7/28/2023) contends that the initiative petitions failed to comply with the legal requirement to include the text of existing statutes that would be implicitly repealed by the amendment if it is adopted. Cincinnati Enquirer reports on the lawsuit. [Thanks to Thomas Rutledge for the lead.]

Church Autonomy Doctrine Does Not Shield Criminal Conduct

In Hochstetler v. State of Indiana, (IN App., July 27, 2023), an Indiana state appellate court held that criminal conduct is not shielded by the church autonomy doctrine. In the case, three Old Order Amish bishops were convicted of misdemeanor intimidation for threatening to place an Amish wife under a bann if she did not remove herself from a protective order she had obtained to protect her and her children from her husband.

Thursday, July 27, 2023

Some Claimed Exemptions From Vaccine Mandate Were Not Religious In Nature

In Ellison v. Inova Health Care Services, three hospital employees sued because their claims for religious exemptions from the Covid vaccine mandate were rejected. They asserted that their employer violated Title VII by failing to accommodate their religious beliefs. The court found that only the aborted fetal cell objections of one defendant were adequately linked in the pleadings to plaintiff's religious beliefs. Other objections to the vaccine were not religious in nature. The court said in part:

In Ellison’s request for exception, he claims that, as a Christian, he has a right to refuse the vaccine. Specifically, he claims that the Bible requires Christians to treat their bodies as “temple[s] of the Holy Spirit,” meaning that he is “compel[led]” to care for his mind and body.... And because, in his view, taking the COVID-19 vaccine would “introduce to [his] body a medication that could induce harm,” he claims that complying with the hospital’s policy would be “antithetical to [his] desire to honor God.”...

... [T]he Court finds that, though couched in religious terms, Ellison refused the vaccines based on concerns of vaccine safety.

Two of the plaintiffs claimed that they pray over their health care decisions and follow God's answers. The court rejected this, calling it an unverifiable claim of a blanket privilege that undermines our system of ordered liberty.

Conscience Clause in Health Insurance Mandate Does Not Violate Church's Free Exercise

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, July 25, 2023), a Washington federal district court dismissed a free exercise challenge by a church to a Washington law requiring all health insurance plans that provide maternity coverage to also provide substantially equivalent abortion coverage. Under the law, employers with religious or moral objections to specific services do not have to purchase coverage for those services, but enrollees must still be able to access coverage for the services. The court said in part:

None of the State’s arguments seem to fully address the crux of Cedar Park’s facilitation complaint: that its employees would not have access to covered abortion services absent Cedar Park’s post-SB 6219 plan. This fact is undisputed and undoubtedly true. Because of SB 6219, Cedar Park’s employees gained coverage for abortion services under their employer-sponsored health insurance plan that they would not otherwise have. Even if the “facilitation” is somewhat minimal, SB 6219 requires Cedar Park to facilitate access to covered abortion services contrary to Cedar Park’s religious beliefs....

Because the Court concludes that SB 6219 is neutral and generally applicable, the law is valid if it is rationally related to a legitimate governmental purpose....

The Washington legislature identified multiple legitimate governmental purposes for enacting SB 6219, including promoting gender equity, promoting economic success of women, improving women’s health, and protecting privacy.

Wednesday, July 26, 2023

Hindu Profs May Move Ahead with Some Challenges To "Caste" In Anti-Discrimination Policy

In Kumar v. Koester, (CD CA, July 25, 2023), a California federal district court dismissed for lack of standing plaintiffs' free exercise and equal protection challenges to California State University's inclusion of the term "caste" in its Interim Non-discrimination Policy. However, the court concluded that plaintiffs-- South-Asian, Hindu CSU professors-- may move ahead with their Establishment Clause and vagueness claims.

Plaintiffs object to the University's policy that treats "caste" as a social and religious hierarchy created by the Hindu religion. They contend that caste is no part of Hinduism and that its inclusion in the University policy promotes racial and religious stereotypes and subjects plaintiffs' Hindu religious beliefs to public ridicule. The court dismissed plaintiffs' equal protection challenges because "abstract stigmatic injuries" are not sufficient to create standing. Insofar as plaintiffs argue that the Policy provides insufficient protection to non-Asian victims of caste discrimination, plaintiffs allege no injury to themselves. As to plaintiffs' free exercise challenges, the court said in part:

Plaintiffs emphatically denounce the caste system and reject the notion that it is part of their religion. Thus, the Policy does not threaten any of Plaintiffs' rights to practice their religion.

As to plaintiffs' Establishment Clause claims, the court said in part:

To evaluate the merits of an Establishment Clause claim, a court must reference historical practices and understandings.... A government practice that unevenly impacts religion may nevertheless be constitutional if it is supported by history and tradition.... Defendant contends that inclusion of the term "caste" is supported by a long history and tradition of disallowing racial discrimination in schools. While Defendant is correct that there is a long history of preventing racial discrimination in education, Defendant has not adequately demonstrated that there is a history or tradition of incorporating words with religious connotations to curb racial discrimination. Therefore, Defendant has failed to demonstrate that implicating Hinduism through the Policy's inclusion of the term "caste" is supported by history and tradition.

[Thanks to Glenn Katon for the lead.]

Vermont Pregnancy Counseling Centers Sue Over New Restrictions

Suit was filed yesterday in a Vermont federal district court attacking Vermont's recently-enacted SB 37 which, among other things, imposes new regulation on anti-abortion pregnancy counseling centers. The law prohibits advertising of services that is "untrue or clearly designed to mislead the public about the nature of the services provided." It also provides that licensed health care professionals who provide services at such centers are responsible for ensuring that services, information and counseling at the center complies with these requirements. The complaint (full text) in National Institute of Family and Life Advocates v. Clark, (D VT, filed 7/25/2023) contends that these provisions are unconstitutionally vague and also violate the free speech rights of clinics, alleging in part:

111. The Advertising Prohibition provides no guidance as to how it should be applied to advertisements including medical information on which there is no medical consensus.

112. The Advertising Prohibition is also unclear as to whether it requires a disclosure in all advertisements that the pregnancy center does not provide abortions or "emergency contraception."

113. Requiring such a disclosure would compel the centers' speech.

114. The Advertising Prohibition has chilled Plaintiffs' speech.

115. For example, Aspire's medical director created a video about abortion pill reversal that Aspire would like to post on its website....

168. Because Plaintiffs do not charge for their services, the Provider Restriction, 9 V.S.A. § 2493(b), regulates Plaintiffs' non-commercial speech.

169. The Provider Restriction is a viewpoint- and content-based regulation of pure speech because it directly regulates speech about health-care-related" information" and "counseling" by "limited-services pregnancy centers," even when no medical treatment or procedure is involved. 9 V.S.A. § 2493(b).

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

Tuesday, July 25, 2023

Guam Legislature Overrides Veto of Bill Authorizing Government-Funded Religious Charter Schools

On July 24, the Guam legislature by a vote of 13-0 overrode Governor Lourdes Leon Guerrero's July 12 veto of Bill No.62-37. (Full text of veto message). The bill allows both private religious schools and private non-sectarian schools to petition to convert to government-funded Academy Charter Schools. The legislation authorizes up to 7 charter schools to operate at any one time. (Full text of bill and veto override vote). The legislature's introductory language in the bill reads in part:

I Liheslaturan Guåhan intends to remove any discrimination or distinction between private sectarian or non-sectarian applicants for converting existing schools or for new charter schools. I Liheslaturan Guåhan recognizes the enormous contribution and history of private sectarian education on Guam and intends for all applicants to be considered on their records and applications to convert to an Academy Charter School.

According to the Guam Daily Post:

Gov. Lou Leon Guerrero in a veto message this month said that Bill 62 violated the First Amendment and the doctrine of separation of church and state, as well as the Organic Act of Guam. She stated she couldn’t authorize the spending of taxpayer money on a religious school, which would then be regulated by the government.

But Attorney General Doug Moylan differed in a legal opinion issued to lawmakers. Several faith-based organizations receive money from the government of Guam already, he noted.

Monday, July 24, 2023

Court Upholds Procedure for Obtaining Immigrant Religious Worker Classification

In Society of the Divine Word v. U.S. Citizenship & Immigration Services, (ND IL, July 20, 2023), an Illinois federal district court rejected RFRA, free exercise, Establishment Clause and equal protection challenges brought by more than a dozen religious institutions to the way in which federal law treats foreign-born ministers and international religious workers who the institutions seek to employ. Current federal law does not allow them to file their application for a "green card" until after their employer has obtained a special immigrant religious worker classification for them. This is different than the rules for employees of secular organizations who may file for a green card concurrently with their employer's filing. The court said in part:

Plaintiffs counter that § 245.2(a)(2)(i)(B) violates the RFRA because their decisions regarding “when and where religious workers may be put into religious service” are protected by the First Amendment. They argue that § 245.2(a)(2)(i)(B) places “extreme and sometimes insurmountable burdens” on their ability to staff their religious missions. These burdens include processing delays, resource expenditure to follow up on and seek expedited adjudication of petitions, and lapses in employment authorization....

The court agrees with plaintiffs that § 245.2(a)(2)(i)(B) is still capable of substantially burdening their religious exercise even if they can use other employment-based immigration categories to hire their foreign-born religious workers. That being said, the court disagrees with plaintiffs that they have demonstrated that these alleged burdens (time, planning, and cost) have a substantial impact on their ability to determine when and where to hire and fire the religious ministers of their choice. Instead, § 245.2(a)(2)(i)(B) requires employers to plan the timing of employment decisions based on immigration status, and potentially limits the pool of qualified applicants that plaintiffs can choose from if they fail to plan accordingly. Limiting the pool of available employees based on immigration status is not the same as interfering with a religious organization’s hiring decision by pressuring them to hire or fire a particular employee, as in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012)...

Plaintiffs’ next argument is that § 245.2(a)(2)(i)(B) violates the Equal Protection and Due Process Clauses because it discriminates against them on the basis of religion....

... [T]his court concludes that § 245.2(a)(2)(i)(B) is not based on religion; it is based on the demonstrated risk of fraud in the special immigrant religious worker program, which is not subject to other requirements that might avoid fraud in other employment-based categories.

Saturday, July 22, 2023

UN Human Rights Council Adopts Resolution Condemning Burning of Qur'an

The United Nations Press Centre reports that on July 14, the United Nations Human Rights Council

concluded its fifty-third regular session after adopting 30 resolutions and holding an urgent debate on the alarming rise in premeditated and public acts of religious hatred as manifested by recurrent desecration of the Holy Quran in some European and other countries.

The Council adopted Resolution A/HRC/53/L.23, Countering Religious Hatred Constituting Incitement to Discrimination, Hostility or Violence (full text), which reads in part:

Affirming that burning the Holy Qur’an or any other holy book is offensive, disrespectful and a clear act of provocation, constituting incitement to discrimination, hostility or violence and a violation of international human rights law, ...

Condemning any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, whether it involves the use of print, audiovisual or electronic media or any other means...

1. Condemns and strongly rejects the recent public and premeditated acts of desecration of the Holy Qur’an, and underscores the need for holding the perpetrators of these acts of religious hatred to account in line with obligations of States arising from international human rights law....

ADF-UK issued a press release criticizing the Council's Resolution as an anti-blasphemy resolution that infringes free expression rights.

Friday, July 21, 2023

Missouri Supreme Court Orders Steps to Allow Reproductive Rights Initiative Petitions to Be Circulated

In State of Missouri ex rel. Dr. Anna Fitz-James v. Bailey, (MO Sup. Ct., July 20, 2023), the Missouri Supreme Court affirmed a trial court's issuance of a writ of mandamus requiring the state Attorney General to approve the State Auditor's fiscal note summaries to eleven Reproductive Rights initiative petitions. That approval is necessary so that the Secretary of State can certify the ballot language and proponents can begin to circulate the petitions for signatures. (Full text of petitions [scroll to No. 2024-77 through 2024-87]). AP reports on the case. State Attorney General Andrew Bailey-- a gubernatorial appointee in Missouri-- contended that the Auditor's conclusion that the proposed constitutional amendments would have no fiscal impact were inaccurate. Bailey, an abortion opponent, contended that. if approved by voters, the state could lose $12.5 billion in Medicaid funds and $51 billion in future tax revenues because of fewer births. This earlier report by the Missouri Independent has additional background.

In its opinion, the Missouri Supreme Court said in part:

The Attorney General’s narrow authority to approve the “legal content and form” of the fiscal note summaries cannot be used as a means of usurping the Auditor’s broader authority to assess the fiscal impact of the proposals and report that impact in a fiscal note and fiscal note summary....

The Attorney General, nevertheless, characterizes his claim as challenging the “legal content and form” of the fiscal notes and their summaries because he contends they use language that is argumentative or likely to prejudice readers in favor of the proposed measure.... [H]e claims the content of the notes is likely to prejudice voters in favor of the proposals by underestimating the fiscal impact. And, because he believes the fiscal notes understate the costs to state and local governments, the Attorney General claims the summaries inevitably do so as well. The Attorney General has no authority under section 116.175 to refuse to approve fiscal note summaries on such grounds....

For more than 40 years, this Court has noted “that procedures designed to effectuate [the rights of initiative and referendum] should be liberally construed to avail voters with every opportunity to exercise these rights” and that “[t]he ability of voters to get before their fellow voters issues they deem significant should not be thwarted in preference for technical formalities.”... If the Attorney General had complied with his duty ..., the Secretary would have certified the official ballot titles for Fitz-James’s initiative petitions nearly 100 days ago.

Court Rejects Muslim Americans' Challenge to Their Treatment at U.S. Borders

In Kariye v. Mayorkas, (CD CA, July 19, 2023), a California federal district court dismissed claims by three Muslim plaintiffs that their rights have been violated by ongoing religious questioning of Muslim Americans at ports of entry. The court rejected plaintiffs' Establishment Clause challenge, saying in part:

In light of the case law holding that the government has plenary authority at the border and that maintaining border security is a compelling government interest, the court finds that "reference to historical practices and understandings" weighs against finding an Establishment Clause violation based on religious questioning at the border.... Plaintiffs' allegations to the contrary—that American history and tradition protect religious belief—do not sufficiently address historical practices and understandings at the border.

Rejecting plaintiffs' Free Exercise claim, the court said in part:

[T]he ongoing harms alleged by Plaintiffs here—their modifications to religious practices during international travel— ... can ... be categorized as subjective chilling effects insufficient to constitute a substantial burden under the Free Exercise Clause....

... Plaintiffs have not plausibly alleged they were deprived of a government benefit or coerced to act contrary to their religious beliefs...

... Plaintiffs' allegations support the conclusion that the questioning alleged in this case would be a narrowly tailored means of achieving the compelling government interest of maintaining border security.

The court also rejected plaintiffs' freedom of association, retaliation, equal protection and RFRA claims.

Thursday, July 20, 2023

6th Circuit Hears Oral Arguments in RLUIPA Land Use Dispute

The U.S. 6th Circuit Court of Appeals yesterday (July 19) heard oral arguments (audio of full oral arguments) in a RLUIPA land use case, Catholic Healthcare International, Inc. v Genoa Charter Township, Michigan. The dispute is summarized by a Michigan federal district court in one of its opinions:

CHI acquired title to a parcel of undeveloped property... and requested Township approval to construct a grotto/prayer area with associated parking and drive access on the Property.... In response, the Township informed a CHI representative that the proposed construction would be considered a special land use requiring special land use and site plan approval.... Despite this instruction from the Township, CHI erected the desired religiously symbolic structures: a Station of the Cross, similar in size and appearance to a birdhouse, and a shrine consisting of an image within a brick wall, referred to as a “grotto,” on the Property without approval or permits from the Township....

The complex history of the case is outlined on the website of the American Freedom Law Center. Yesterday's oral arguments, which focused in part on the issue of ripeness, are discussed by Courthouse News Service.

Biden Appoints New Member of USCIRF

Last week, President Biden announced his appointment of Susie Gelman as a Commissioner on the U.S Commission on International Religious Freedom. From 2016-2023, Gelman served as Board Chair of Israel Policy Forum. She previously served, among other positions, as President of the Jewish Federation of Greater Washington. JNS reports on the appointment.

Wednesday, July 19, 2023

Louisiana Legislature Overrides Veto of Gender Transition Ban for Minors

Yesterday the Louisiana legislature overrode Governor John Bel Edwards' veto of HB648, the Stop Harming Our Kids Act (full text). The law prohibits medical professionals from providing puberty blockers, hormonal treatments or surgery to treat gender dysphoria in minors. AP reports on the legislative override.

Coach Sues Over Dismissal for His Remarks About Transgender Athletes

Suit was filed this week in a Vermont federal district court by a high school snowboarding coach who was dismissed because of a comment he made regarding a transgender woman on a team that would be competing against his female high school team. The school's notice of termination (Exhibit 8 in Complaint) alleges that the coach used "disparaging names" that created "an objectively offensive environment and constituted harassment based on gender identity...." In the Complaint (full text) in Bloch v. Bouchey, (DD VT, filed 7/17/2023), the coach however alleged in part:

3. Coach Bloch is also a practicing Roman Catholic who believes that God creates males and females with immutable sex. His understanding of science complements his religious beliefs. Coach Bloch believes, based on scientific evidence, that there are only two sexes, which are male and female, and that sex is determined by a person's chromosomes.

4. But Coach Bloch's respectful expression of his beliefs contradicted the prevailing orthodoxy of the Defendant Vermont state officials, school district, and superintendent. So, Defendant Superintendent Sherry Sousa terminated him and barred him from future employment in the school district.

5. On February 8, 2023, Coach Bloch and his team were waiting in the lodge for a competition to start. That day, his team was to compete against a team that had a male snowboarder who identifies as a female and competes against females. During downtime in the lodge, Coach Bloch overheard a conversation between two of his athletes about that male competing against females.

6. Coach Bloch joined the conversation to offer that people express themselves differently and that there can be masculine women and feminine men.

7. But he affirmed that as a matter of biology, males and females have different DNA, which causes males to develop differently from females and have different physical characteristics. Coach Bloch discussed that biological differences generally give males competitive advantages in athletic events.

8. The conversation was respectful among all parties and lasted no more than three minutes. It took place entirely outside the presence of the transgender-identifying snowboarder.

9. Coach Bloch's team and the team with the male who identifies as a female competed without incident. After the competition, the two teams and their coaches, including Coach Bloch, shared a bus home.

The complaint goes on to allege that the school was acting pursuant to Vermont's Harassment, Hazing and Bullying Law. It contends that the HHB Law and policies under it violated the coach's free speech rights, including the 1st Amendment's ban on viewpoint discrimination, prior restraints and overbreadth. It also alleges due process violations. ADF issued a press release announcing the filing of the lawsuit.

Denial of Teacher's Religious Exemption from Covid Vaccine Mandate Is Upheld

In In re Matyas v. Board of Education of the City School District of the City of New York, (NY County Sup. Ct., July 11, 2023), a New York trial court rejected a teacher's challenge to the Department of Education's denial of an exemption from its Covid vaccine mandate. The court said in part:

[P]etitioner submitted, to the DOE, a request for a reasonable accommodation exempting her from the COVID-19 vaccination requirement on the ground that her childhood Roman Catholic faith, and what appears to have been her recent conversion to an unspecified sect of Evangelical Protestant Christianity, made it impossible for her to take any type of vaccination. She cited several passages from both the Old and New Testaments of the Bible... most which discuss one’s faith and trust in the almighty, and the last of which proscribes the mixing of human blood with the mixing of the blood of sacrificed animals. . As the petitioner phrased it, although she teaches biology,
“[t]here is only one GOD. To trust that a vaccine will protect us more than God would, is to have a false idol. I cannot betray my faith and GOD and my conscious. I will not follow any false idols in search of salvation I know that my salvation is secure in my faith in GOD.”...

With respect to ... her First Amendment right to the free exercise of religion and discrimination in employment on the basis of religion, the petitioner has not established either that the City’s vaccine mandate was premised upon religion, as she has not demonstrated that her conclusions about the alleged proscription of desecrating the human body with vaccinations is an established Catholic or Evangelical doctrine, or shown that they were more than her personal interpretation of her obligations as a practicing Catholic or Evangelical....

Tuesday, July 18, 2023

Iowa Trial Court Temporarily Enjoins State's New Heartbeat Abortion Ban

In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Dist. Ct., July 17, 2023), an Iowa state trial court issued a temporary injunction barring enforcement of Iowa's new heartbeat abortion ban. The court held that a decision of the Iowa Supreme Court in 2022 left the federal undue burden test as the controlling test in Iowa abortion cases. The trial court said in part:

When the undue burden standard is applied, it is readily apparent that the Petitioners are likely to succeed on their claim that H.F.732 violates the Due Process clause, article I, section 9 of the Iowa Constitution.

The court's decision was complicated by the fact that in 2018, Iowa passed a similar heartbeat law which was enjoined by a trial court. That injunction remained in place when last month the Iowa Supreme Court deadlocked 3-3 in an appeal of that decision. In yesterday's decision by the trial court, the temporary injunction had one exception. The court said:

The court believes it must follow current Iowa Supreme Court precedent and preserve the status quo ante while this litigation and adversarial presentation which our Supreme Court has invited moves forward.

However, as the Governor has now signed H.F. 732 into law, the court should except from that status quo, section 2, paragraph 5 of H.F. 732, directing the Iowa Board of Medicine to adopt rules pursuant to Chapter 17A. Should the injunction entered today ultimately be dissolved, it would only benefit all involved, patients and providers alike, to have rules in place to administer the law.

Iowa ACLU issued a press release announcing the decision.

Parochial School Students Sue For Equal Access to District Extracurricular Activities

Suit was filed last week in a Pennsylvania federal district court on behalf of two parochial school students and their parents challenging a school district policy that allowed home school and charter school students to participate in the district's extracurricular and co-curricular activities but does not allow private and parochial school students the same right. The complaint (full text) in Religious Rights Foundation of Pa v. State College Area School District, (MD PA, filed 7/10/2023), contends that exclusion of religious parochial schools violates plaintiff's free exercise and equal protection rights. Penn Live reports on the lawsuit..

Monday, July 17, 2023

Biden and VP Laud Rev. Jesse Jackson on His Retirement

At the Rainbow PUSH Coalition's 57th Annual Convention in Chicago yesterday, the Reverend Jesse Jackson officially announced his retirement as the organization's president and Reverend Dr. Frederick Douglass Haynes III of Dallas was named to succeed Jackson. (NBC DFW News). Vice President Kamala Harris spoke at the Convention, (Full text of Remarks.) Also President Joe Biden issued a Statement (full text) thanking Rev. Jackson for his life's work, saying in part:

The promise of America is that we are all created equal in the image of God and deserve to be treated equally throughout our lives. While we’ve never fully lived up to that promise, we’ve never fully walked away from it because of extraordinary leaders like Reverend Jesse Jackson, Sr.

Friday, July 14, 2023

Catholic School's Non-Renewal of Counsellor Who Entered Same-Sex Marriage Upheld

In Fitzgerald v. Roncalli High School, Inc., (7th Cir., July 13, 2023), the U.S. 7th Circuit Court of Appeals held that the ministerial exception doctrine requires dismissal of a suit which was brought by a Catholic high school guidance counselor whose contract was not renewed because her same-sex marriage was inconsistent with the Catholic school's religious mission. The court found this to be an easy case because last year in a different decision the 7th Circuit held that a suit by plaintiff's Co-Director of Guidance was barred by the ministerial exception doctrine. (See prior posting.) The court said in part:

Our precedent makes clear that Fitzgerald was a minister at Roncalli and that the ministerial exception bars this suit. But cases like today’s—involving two plaintiffs with the same title, at the same school, performing the same duties, and bringing the same claims in our court—are rare. A fact-specific inquiry remains necessary in cases where the ministerial exception is asserted as a defense to balance the enforcement of our laws against the protections of our Constitution.

Judge Brennan filed a concurring opinion pointing out that the case could also have been resolved by relying on the statutory religious employer exemption in Title VII which would have avoided the constitutional question. Becket issued a press release announcing the decision.

Court Says HHS Used "Smurfing" To Avoid Review of Guidance To Pharmacies

In State of Texas v. U.S. Department of Health & Human Services, (WD TX, July 12, 2023), a Texas federal district court refused to dismiss a challenge by the state of Texas and a pharmacy company to the Department of Health & Human Service's July 14, 2022, Guidance to Nation's Retail Pharmacies: Obligations under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services. Texas claims that the Guidance is an attempt to pre-empt Texas' abortion bans. Plaintiffs contend that the Guidance exceeds HHS's statutory authority and violates the Administrative Procedure Act. HHS alleges the plaintiffs lack standing. According to the court:

Plaintiffs’ standing in this case turns on the answer to a single question: does the Pharmacy Guidance require pharmacies to dispense drugs for abortion purposes? Defendants argue now that the Pharmacy Guidance only “addresses situations in which a pharmacy would fail to fill a prescription for non-abortion purposes.” What’s more, Defendants argue that “Texas cannot point to any language in the guidance that purports to require pharmacies to dispense drugs for abortion purposes.” Thus, in Defendants’ view, because the Pharmacy Guidance is not about abortion, it “does not conflict with, or purport to preempt, Texas laws that restrict abortion.” But that argument perfectly evidences agency smurfing—an executive branch breaking up a policy goal into silos, hoping to sever the threads that link the compartmentalized pieces to the executive’s goal....

This administration has, before and since Dobbs, openly stated its intention to operate by fiat to find non-legislative workarounds to Supreme Court dictates. This Court will not play along with such a breach of constitutional constraints.

Earlier in its opinion, the court set out at greater length its concern about "smurfing":

A recent trend among federal agencies appears to be borrowing a technique common among money launderers to avoid judicial review. The technique known as “smurfing” in the financial arena occurs when the launderer divides a large transaction—which might otherwise trigger a bank’s reporting requirements—into various smaller transactions to avoid detection....

Agency smurfing, similar to financial smurfing, occurs when the executive branch smurfs one policy goal into multiple, supposedly “unreviewable” and “unchallengeable” pieces. Consider an executive branch, who, immediately following a Supreme Court decision, seeks to achieve a policy goal contrary to the Court’s holding. The executive branch knows, however, that courts will likely view that policy goal as incompatible with the Supreme Court’s reasoning. In its efforts to avoid scrutiny, and eventual discovery of their true purpose, the executive branch breaks up the policy goal into separate, seemingly unrelated and innocent pieces—an executive order here, a press release and guidance there.

Mayo Pharmacy, a co-plaintiff, also alleged violation of its free exercise rights under RFRA. The court held that the case was brought in the wrong venue to assert that claim, and it transferred that claim to the District of North Dakota where venue lies. ADF issued a press release announcing the decision.

Thursday, July 13, 2023

Iowa Passes Fetal Heartbeat Abortion Ban

In a one-day special legislative session on Tuesday, the Iowa legislature passed HF732 (full text), a ban on most abortions if a fetal heartbeat can be detected (usually after 6 weeks of pregnancy). The law has exceptions for medical emergencies, and for rape or incest if reported to law enforcement or health authorities. "Medical emergency" is defined in Iowa Code §146B.1 as where necessary to preserve the life of the pregnant woman or where the pregnancy poses a serious risk of substantial and irreversible impairment of a major bodily function. AP in its coverage of the bill reports that Governor Kim Reynolds, who called the special session of the legislature, says she will sign the bill on Friday. Earlier this year, the Iowa Supreme Court was evenly divided, thereby affirming a state trial court's holding that a previous fetal heartbeat law violates the Iowa constitution.

9th Circuit: Prison Official's Referencing Bible Verse Did Not Violate Establishment Clause

In Forter v. Young, (9th Cir., July 12, 2023), the U.S. 9th Circuit Court of Appeals rejected former prisoner Jeffrey Forter's complaints about the procedure used to deny his religious meal accommodation request. In seeking access to kosher meals, Forter cited a Bible verse. A response from a prison official disagreed with Forster's interpretation of the verse and cited an additional verse. Forster claimed that response violated the Establishment Clause. The court disagreed, saying in part:

[T]he Establishment Clause does not prevent religious references by state actors... and the prison official’s actions do not constitute an unconstitutional “official policy that ‘establishes a religion or religious faith, or tends to do so,’”

Wednesday, July 12, 2023

Contractor Lacks Standing to Sue Texas AG In Challenge To Anti-BDS Law

In A&R Engineering and Testing, Inc. v. Scott, (5th Cir., July 10, 2023), the U.S. 5th Circuit Court of Appeals held that a company and its Palestinian owner, both of whom boycott Israel, lack standing to sue the Texas Attorney General in a challenge to Texas' anti-Boycott, Divestment and Sanctions (BDS) Act. The law requires government contracts to include a clause certifying that the contractor does not and will not boycott Israel during the duration of the contract. Plaintiff wanted to renew its long-standing $1.5 million contract with the city of Houston without the anti-BDS clause in it. The court said in part:

[I]t’s unclear how A&R can trace its economic injury to the Attorney General.... Traceability is particularly difficult to show where the proffered chain of causation turns on the government’s speculative future decisions regarding whether and to what extent it will bring enforcement actions in hypothetical cases....

The court said that the anti-BDS statute does not expressly provide a way for the Attorney General to enforce it, and the Attorney General has not taken any action suggesting that he might enforce it. The court went on:

The City told the district court it would follow state law and include the provision. But the City never attributed its actions to any enforcement or threatened enforcement by the Attorney General. A&R’s injury depended on the “unfettered,” “independent” choices of the City ..., so the injury isn’t traceable to the Attorney General.... And A&R does not have standing to sue him.

(See prior related posting.) Jerusalem Post reports on the court's decision.

Tuesday, July 11, 2023

British House of Commons Debates Role of Bishops in House of Lords

In Britain last week (July 6), the House of Commons held a 90-minute debate on current law which gives 26 bishops of the Church of England the right to automatically have seats in the House of Lords. (Full text of debate.) The debate was led by Tommy Sheppard, the co-chair of the all-party parliamentary humanist group, who at the beginning framed the debate by saying in part:

There are only two countries in the world where clerics are automatically guaranteed a place in the legislature. One is the United Kingdom, and the other is the Islamic Republic of Iran. The question before us is whether we wish to be able to make that same comparison in future.

As the debate ended, he concluded:

I want to stress that no one is suggesting that there is not a role for people of faith in our public life and in our Parliament. No one is suggesting that Anglicans should not be represented in the House of Lords or that bishops should not be in the House of Lords. In fact, 60% of the non-spiritual peers in the House of Lords identify as Christian, so it is hard to make an argument that that particular Church is under-represented in the upper Chamber. What we are talking about is whether this anachronistic situation of additional, guaranteed representation should exist for one Church and one institution alone, above all others.

Among those supporting the role of Bishops was Andrew Selous who said in part:

We have an angry and divided public square, social media lynch mobs, and so on. The world view that we pick up from the Church, however imperfectly demonstrated by the bishops, is one of love, forgiveness and grace, and we have never needed that more in our public life than we do at the moment. We need humility and hopefulness, and that is part of what the bishops point to. That is very necessary and extremely important in a troubled and hurting world. If it’s not broke, don’t change it.

And Neil Coyle who said in part:

I support reform of the House of Lords, but just targeting bishops for removal would leave the House full of Tory donors and political patronage, and that is not a House I would be happy to see.... Frankly, the composition of the upper House is less of an issue than its role....

I am mindful that a bishop at least represents a diocese, which gives them—more than others they sit with—a constituency, of sorts, to reflect in the House of Lords.... The bishops’ contributions come from their expertise and experience, are based on years of service, and are underpinned by values that are integral to what they bring to our upper Chamber.... Although there are so few bishops in the Lords, they have been crucial to narrow recent wins. Their votes have been decisive—I thank them for their service—including on the Government’s plan to sack nurses for daring to strike in favour of their employment rights and pay.... Lords should be commended for serving until 4 am, rather than being told that their contribution is unwelcome.

[Thanks to Law & Religion UK for the lead.]

County Did Not Show Compelling Interest in Requiring Amish Plaintiffs to Use Septic Tanks

In Must v. County of Fillmore, (MN App., July 10, 2023), a Minnesota state appellate court in a suit brought under RLUIPA held that the county had not shown that it has a compelling interest in requiring appellants-- 3 members of the Amish community-- to use septic tanks in violation of their religious beliefs. The court said in part:

[T]he district court relied on speculation in making key findings about the harmful content of Amish gray water, the amount of water the Amish use, the number of objecting households, and the amount of Amish gray-water discharge. The district court’s reliance on speculation is precisely what the Supreme Court forbids in Fulton [v. City of Philadelphia]. Thus, we conclude that the record evidence is insufficient to support the district court’s ruling that the septic-tank requirement furthers a compelling state interest specific to these appellants.

In 2021, the U.S. Supreme Court had remanded the case for consideration in light of the Fulton decision. (See prior posting.) Courthouse News Service reports on yesterday's Minnesota court decision.

Monday, July 10, 2023

9th Circuit: Falun Gong Can Move Ahead With Human Rights Suit Against Cisco

In Doe I v. Cisco Systems, Inc., (9th Cir., July 7, 2023), the U.S. 9th Circuit Court of Appeals in a 93-page opinion, held that Falun Gong victims of human rights abuses carried out by China can move ahead with claims against Cisco Systems and its executives for their assistance that enabled China to carry out monitoring of Internet activity by Falun Gong members. The court said in part:

Plaintiff-Appellants are practitioners of Falun Gong, a religion originating in China in the 1990s. They allege that they or family members are victims of human rights abuses committed by the Chinese Communist Party and Chinese government officials. The alleged abuses, Plaintiffs contend, were enabled by the technological assistance of Defendants, U.S. corporation Cisco Systems, Inc., and two Cisco executives....

Plaintiffs initiated this lawsuit more than a decade ago, alleging that Cisco aided and abetted or conspired with Chinese officials in violation of the Alien Tort Statute, the Torture Victim Protection Act of 1991 ... and other federal and state laws. Specifically, Plaintiffs contend that Cisco, operating largely from its corporate headquarters in California, “designed, implemented and helped to maintain a surveillance and internal security network” for Chinese officials, greatly enhancing their capacity to identify Falun Gong practitioners and ensnare them in a system of physical and mental torture, forced labor, and prolonged and arbitrary detention.

... We once again recognize aiding and abetting liability under the ATS ... and hold Plaintiffs’ allegations against corporate defendant Cisco sufficient to meet the applicable aiding and abetting standard. We also conclude that this case involves a permissible domestic application of the ATS against corporate defendant Cisco, because much of the corporation’s alleged conduct constituting aiding and abetting occurred in the United States. Finally, we reverse the district court’s dismissal of the claim under the TVPA against Chambers and Cheung, as the TVPA does provide a private right of action against those who aid and abet torture, and the allegations against [Cisco executives] Chambers and Cheung are sufficient to meet the aiding and abetting standard.

NTD reports on the decision.

Sunday, July 09, 2023

6th Circuit Stays Injunction Against Tennessee's Ban on Treatment of Transgender Youth

In L.W. v. Skrmetti, (6th Cir., July 8, 2023), the U.S. 6th Circuit Court of Appeals in a 2-1 decision stayed a district court's preliminary injunction against Tennessee's ban on providing puberty blockers and hormone therapy for minors suffering from gender dysphoria. Chief Judge Sutton's majority opinion first held that the district court had abused its power by issuing a state-wide injunction in the case. It went on to hold that plaintiffs are unlikely to prevail on their due process or equal protection challenges, saying in part:

Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field....

Parents, it is true, have a substantive due process right “to make decisions concerning the care, custody, and control of their children.”.... But the Supreme Court cases recognizing this right confine it to narrow fields, such as education ... and visitation rights.... No Supreme Court case extends it to a general right to receive new medical or experimental drug treatments.....

Gender-affirming procedures often employ FDA-approved drugs for non-approved, “off label” uses. Tennessee decided that such off-label use in this area presents unacceptable dangers.... Many medical professionals and many medical organizations may disagree. But the Constitution does not require Tennessee to view these treatments the same way as the majority of experts or to allow drugs for all uses simply because the FDA has approved them for some....

Equal protection.... The Act bans gender-affirming care for minors of both sexes. The ban thus applies to all minors, regardless of their biological birth with male or female sex organs. That prohibition does not prefer one sex to the detriment of the other.....

The plaintiffs separately claim that the Act amounts to transgender-based discrimination, violating the rights of a quasi-suspect class. But neither the Supreme Court nor this court has recognized transgender status as a quasi-suspect class. Until that changes, rational basis review applies to transgender-based classifications....

These initial views, we must acknowledge, are just that: initial. We may be wrong. It may be that the one week we have had to resolve this motion does not suffice to see our own mistakes. In an effort to mitigate any potential harm from that possibility, we will expedite the appeal of the preliminary injunction....

Judge White dissented in part, agreeing that the injunction was too broad, but concluding that plaintiffs would likely succeed on their Equal Protection challenge because the law discriminates on the basis of sex.

Politico reports on the decision.

Saturday, July 08, 2023

State AG's Warn Target Corp. About Consequences of Its Pride Campaign

Earlier this week, the Indiana Attorney General, joined by the Attorneys General of Arkansas, Idaho, Kentucky, Mississippi, Missouri and South Carolina sent a joint letter (full text) to the CEO of Target Corp. complaining about the company's promotion and sale of products supporting Pride month. The states' legal officers suggested that Target may have violated state child-protection and parental rights laws. It also suggests that Target has violated its duties to the states as shareholders of Target stock (presumably held in state pension funds). The 5-page, heavily footnoted letter said in part:

As the chief legal officers of our States, we are charged with enforcing state laws protecting children and safeguarding parental rights....

In light of these responsibilities, we wish to communicate our concern for Target’s recent “Pride” campaign. During this campaign, Target wittingly marketed and sold LGBTQIA+ promotional products to families and young children as part of a comprehensive effort to promote gender and sexual identity among children... Target also sold products with anti-Christian designs, such as pentagrams, horned skulls, and other Satanic products....

In connection with its “Pride” campaign, Target provides financial support to an organization called GLSEN (pronounced “glisten”). GLSEN furnishes resources to activists for the purpose of undermining parents’ constitutional and statutory rights by supporting “secret gender transitions for kids” and directing public schools to withhold “any information that may reveal a student’s gender identity to others, including [to] parents or guardians.”...

...Target’s directors and officers have a fiduciary duty to our States as shareholders in the company. The evidence suggests that Target’s directors and officers may be negligent in undertaking the “Pride” campaign, which negatively affected Target’s stock price. Moreover, it may have improperly directed company resources for collateral political or social goals unrelated to the company’s and its shareholders’ best interests....

We live in a different day and age from our nation’s founding. But certain immutable precepts and principles must always endure so long as America is to remain free and prosperous.

CBS News reports on the letter.

Friday, July 07, 2023

North Carolina Governor Vetoes Bills On Women's Sprots, Parental Rights and Gender Transition

On Wednesday, North Carolina Governor Roy Cooper announced that he has vetoed three bills passed by the state's legislature:

(1) House Bill 574, Fairness in Women's Sports Act that prohibits transgender women from participating on school sports teams designated for women.

(2) Senate Bill 49, Parents Bill of Rights which increases parental rights and involvement in their children's education, including the right to seek a religious exemption from immunization requirements, the right to withhold consent for the child to participate in reproductive health education programs, and the right to review all material their child has borrowed from a school library, among many other rights.

(3) House Bill 808, Gender Transition for Minors, which prohibits medical professionals from performing surgical gender transition procedures on a minor or prescribe puberty blocking drugs or cross-sex hormones to a minor.

Christian Post reports on the Governor's action.

Ministerial Exception Applies to Slander, But Not Contract Claims

In Gackenheimer v. Southern New England Conference of the United Church of Christ, Inc., (CT Super., June 29, 2023), a minister who was fired from his position as executive director of a church's conference center sued the church and its senior leaders for defamation, infliction of emotional distress and breaches of express and implied contract. Plaintiff alleged that the leaders misrepresented the reasons for his firing in communications to community religious leaders and church volunteers. A Connecticut trial court applied the ministerial exception doctrine to dismiss defamation related claims, but permitted plaintiff to move ahead with his contract claims. The court said in part:

The ministerial exception ... does not categorically preclude all claims brought against a religious institution. ..."...[E]ven if it is established that the plaintiff's primary duties render him a ministerial employee ... Connecticut courts must consider whether adjudicating the particular claims and defenses in the case would require the court to intrude into a religious institution's exclusive right to decide matters pertaining to doctrine or its internal governance or organization."... Therefore, the court will separately examine each of the plaintiff's causes of action in order to determine whether they are barred by the ministerial exception.

In counts one and two, the plaintiff alleges slander and slander per se causes of action based on two statements allegedly made by SNE's senior leaders to members of the community.... Therefore, to adjudicate the plaintiff's slander claims, the court would necessarily have to delve into the veracity of comments made by SNE's leaders regarding its decision to terminate the plaintiff's employment.... Such an examination into the decision-making process of church leadership is exactly what the ministerial exception prohibits. Accordingly, the court strikes counts one and two.

Counts three and four state claims for negligent and intentional infliction of emotional distress... based on SNE's decision to terminate his employment and the immediate aftermath of the process... . "[T]hese claims arise directly from, and in furtherance of, the defendants' decision to terminate the employment of the plaintiff...." On that basis, the court grants the motion to strike counts three and four....

Unlike the claims brought by the plaintiff in counts one through four, counts five through eight do not involve the plaintiff's termination process and the reasons behind it. Rather, in these counts, the plaintiff asks the court to determine if SNE breached its employment contract with him or, alternatively, ... the plaintiff is entitled to relief under the doctrine of promissory estoppel. Importantly, the plaintiff alleges that he earned this claimed compensation years before he was fired. Therefore, when deciding this dispute, the court will not be excessively entangled in SNE's decision about whether to retain the plaintiff as its minister.... The court ... therefore denies the motion to strike counts five, six, seven and eight.

Thursday, July 06, 2023

School District's Preferred Name Policy Upheld

In Willey v. Sweetwater County School District No. 1 Board of Trustees, (D WY, June 30, 2023), a Wyoming federal district court, in a 56-page opinion, upheld, over parental objections, most of a school district's policy requiring school district personnel to use a student's preferred/ chosen name or pronoun in verbal, written, and electronic communications. However, the court issued a preliminary injunction barring the school district from (absent a reasonable concern of harm or abuse) precluding teachers from responding to a parent's inquiry, or lying to parents. The court then largely rejected a challenge by a teacher who had religious objections to the policy. It said that "it is hard to imagine why a public employee's free exercise rights would warrant more protection than their free speech rights." It went on to say that, as to free speech, the policy only compels the teacher to speak pursuant to her official duties and does not restrict her speech as a citizen on matters of public concern.

Wednesday, July 05, 2023

Court Says Dobbs Decision Does Not Undercut Freedom of Access To Clinic Entrances Act

In United States v. Gallagher, (MD TN, July 3, 2023), a Tennessee federal district court became the first court to rule on whether the Supreme Court's Dobbs decision affects the constitutionality of the Freedom of Access to Clinic Entrances ("FACE") Act. In the case, eleven co-defendants sought dismissal of their indictments for violating FACE. They first argued that since Dobbs held abortion is not entitled to heightened protection under the 14th Amendment, Congress' reliance in enacting the law on its 14th Amendment Section 5 enforcement powers is undercut. The court responded in part:

While the question of how section 5 applies to the FACE Act may be of some abstract or academic interest, however, it is of limited practical importance, given that section 5 is only one of two powers on which Congress relied in enacting the FACE Act, the other of which—the power to regulate interstate commerce—was not at issue in Dobbs.

Later in its opinion, the court rejected defendants' argument that Dobbs effectively created a carveout of abortion services from commerce clause coverage. It also rejected defendants' argument that they could not be prosecuted under 18 USC §241 for conspiring to prevent the exercise of a federal right. The court said "§ 241 does not require that the right in question be constitutional, only that it be federal. FACE is, of course, a federal statute...."

The court also rejected defendants' argument that the government is engaged in impermissible selective enforcement because it has not brought enough prosecutions under the FACE Act against individuals who have interfered in the operation of anti-abortion “crisis pregnancy centers.”

It went on to reject defendants' free speech arguments, saying in part:

Nor is the FACE Act being applied in an unconstitutional manner to these particular defendants based on their viewpoints or participation in First Amendment-protected activities, as would be required for a so-called “vindictive prosecution” defense. “...

Because there is no actual evidence of any such improper motive, the defendants engage in a sleight of hand, whereby they have treated any statement by the Department of Justice indicating a desire to safeguard access to abortion as evidence of a desire to punish these defendants for Dobbs. The defendants, though, are not the center of the moral or political universe. A desire to safeguard access to abortion is a desire to safeguard access to abortion—not an affront directed at them. More importantly, safeguarding access to abortion is, particularly under Dobbs, an entirely appropriate thing for legislatures and executives to do, if that is the course they choose. Indeed, it is harder to imagine a more fulsome endorsement of the elected branches’ power to set abortion policy than Dobbs...

Moving to defendants' Free Exercise/ RFRA claims, the court said in part:

The boundaries of the Free Exercise Clause are a topic of much disagreement.... The defendants’ argument, however, goes to something much more fundamental. Although the defendants go to great lengths to make this issue more complicated than it is, they ultimately ask a straightforward question: Does the Free Exercise Clause grant individuals who are acting out of religious motivations freedom to commit actions that otherwise would be crimes against the person or property of others through physical invasion, intimidation, or threat? The answer is similarly straightforward: No, it does not....

The defendants argued that RFRA requires that the state have a compelling interest to substantially burden religious exercise, and that after Dobbs there cannot be a compelling interest in protecting access to abortion. The court responded in part:

... [T]he Supreme Court has never held that a “compelling interest” depends upon something being considered a fundamental right. They are different constitutional concepts, performing different jurisprudential functions.

Court Strongly Criticizes Performance of Counsel for The Satanic Temple

In March 2021, The Satanic Temple and one of its members filed suit in a Texas federal district court challenging Texas' requirement that a woman have a sonogram prior to an abortion. The complaint alleged that in light of the Satanic Temple's Satanic Abortion Ritual, the Texas requirement violated plaintiffs' free exercise, substantive due process and equal protection rights. (See prior posting.) After the U.S. Supreme Court's Dobbs decision, The Satanic Temple filed a Third Amended Complaint. In The Satanic Temple, Inc. v. Young, (SD TX, July 3, 2023), the Texas district court then dismissed the suit for lack of standing and on sovereign immunity grounds. The court added:

Without any supporting detail, Plaintiffs assert two causes of action under the First Amendment, one being a claim swirling together the Free Speech and Free Exercise Clauses, and the other pertaining to the Establishment Clause. Young argues that these claims are so inadequately pleaded as to deprive her of fair notice as to what exactly this suit is about in the wake of Dobbs....

The court also refused to grant plaintiffs leave to replead their claims. In doing so, the court set out an unusually strong criticism of the performance of plaintiffs' counsel, saying in part:

Given the detail of the prior complaints and these substantial changes in the law, the deficiencies in the operative complaint are no doubt intentional. And indeed, the filing of a willfully deficient amended complaint is of a piece with the mulish litigation conduct by counsel for Plaintiffs, Attorney Matt Kezhaya, in this and other actions representing The Satanic Temple. Recently considered in this regard was whether to revoke his permission to proceed pro hac vice in light of sanctions entered against him in other federal courts after his appearance here. For example, [in one of those cases:]

He ... filed a second motion for TRO containing negligible legal analysis, with six pages of the main analysis dedicated to presentation of what’s purported to be a five-act play.....

Litigation of constitutional claims is a serious matter. Such issues deserve serious attention from counsel desiring to be taken seriously. As it turns out, Plaintiffs might have been better served by proceeding pro se, as applicable standards would dictate that their filings would be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers.”...

And any repleading at this stage would manifest undue prejudice to a range of current and former Defendants who still have little clue as to the exact nature of the claims brought in this case. The Court is also of the firm belief that any further attempt at repleading would be futile, given that Attorney Kezhaya’s filings become more conclusory, reductive, and intemperate over time, in line with his performative and obstinate conduct to date.

Suit Challenges Georgia Ban on Treatment of Minors for Gender Dysphoria

Suit was filed last week in a Georgia federal district court challenging the constitutionality of Georgia Senate Bill 140 which prohibits irreversible sex reassignment surgery and hormone replacement treatment of minors for gender dysphoria. The complaint (full text) in Koe v. Noggle, (ND GA, filed 6/29/2023), alleges in part:

The Health Care Ban violates the fundamental rights of parents to make medical decisions to ensure the health and well-being of their children. By prohibiting medical providers from treating minors with gender dysphoria—a rare condition often requiring medical and therapeutic treatment and care—in accordance with the standards of care and clinical practice guidelines, the Ban prohibits Georgia parents from seeking and obtaining appropriate medical treatment for their children.

... [It] also violates the guarantees of equal protection by denying transgender youth essential, and often lifesaving, medical treatment based on their sex and on their transgender status.

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

Tuesday, July 04, 2023

Defendant's Beliefs About Psilocybin Were Personal, Not Religious

In State of Ohio v. Sobel, (OH App., June 30, 2023), an Ohio appellate court rejected appellant's claim that his sentence for drug possession was based in part on his statements about his use of mushrooms as part of his religion. The court said in part:

... Sobel failed to establish that he uses psilocybin mushrooms in connection with a sincerely held religious belief. He described the “Church of Freewater” as consisting of three people providing life coaching to drug and alcohol addicted persons in the manner of Tony Robbins (a noted inspirational, self-help, motivational personality). Sobel does not describe any particular religious beliefs or tenets of the organization, other than to help people “be themselves, through mind, body, and spirit.” Freewater’s core belief appears to be allowing people to believe whatever he or she wants to believe....

Sobel also does not describe how the mushrooms are utilized in furtherance of the religion as part of a rite or ceremony. He only states opaquely, “mushrooms are a holy sacrament and [unintelligible] medicine for myself and for the Freewater organization that helps me with past traumas both immediate and ancestral and tap into the divine knowledge that is only accessible with the aid of these divine teachers.” ...

[T]hroughout the proceedings, rather than claiming a religious use, Sobel represented that mushrooms were used to treat chronic pain and PTSD.

Under the circumstances of this case, the alleged belief that was infringed would be most accurately characterized as a personal preference, rather than as a deeply held religious conviction.

Monell Claims Opposing Transcendental Meditation Program in Chicago Schools Move Ahead

In Hudgins v. Board of Education of the City of Chicago, (ND IL, June 30, 2023), two former high school students and the mother of one of the students sued claiming that a Quiet Time transcendental meditation program in the Chicago public schools violated the Free Exercise and Establishment Clauses as well as the Illinois Religious Freedom Restoration Act. Plaintiffs claim that the program contained hidden Hindu religious elements. A number of plaintiffs' claims were dismissed, primarily on statute-of-limitations grounds. However, the court allowed plaintiffs to move ahead with their Section 1983 Monell claims for damages against the Chicago Board of Education and the David Lynch Foundation which operated the program under contract in the schools.

Monday, July 03, 2023

4th Circuit Panel Members Disagree on Use of Ministerial Exception Doctrine in Suit Against Liberty University

In Palmer v. Liberty University, Inc., (4th Cir., June 30, 2023), the three judges on the panel of the U.S. 4th Circuit Court of Appeals disagreed on whether they should consider the ministerial exception doctrine in deciding an age discrimination case brought by a Liberty University art professor. In 2018, the University notified plaintiff who was then 79 years old that her teaching contract would not be renewed for the following year. Judge King's majority opinion held that the professor had not produced evidence of age discrimination. Instead, the university dismissed her because she was not meeting its expectations regarding digital art skills.

Despite that favorable ruling, the University, in a cross-appeal, asked the court to also rule that the ministerial exception doctrine applied. Judge King held that the court need not reach that issue.

Judge Richarson filed a concurring opinion contending that dismissal of the professor's claim should be based on the ministerial exception doctrine, saying in part:

Though Palmer did not perform formal religious instruction, her job description required her to integrate a “Biblical worldview” into her teaching. And Palmer admits to regularly praying with students, indeed starting her classes with a psalm or a prayer. Accordingly, Liberty viewed her as an official “messenger” of its faith...

If a court imposes a minister on a congregation that doesn’t want her—even if the court does so based on employment-law principles—it nonetheless impinges on the church’s religious interest in choosing who speaks for it....

Skirting the ministerial exception by dismissing an employment-discrimination claim on its merits forces us to inquire into the church’s motives for firing its minister. But, as discussed already, the church’s decision is intrinsically bound up in religious doctrine. To subject such a decision to the scrutiny of temporal courts threatens the church’s “power to decide for themselves, free from state interference, matters of . . . faith.”...

Because Palmer—like every professor at Liberty—served as the school’s religious “messenger” to its students, she was its “minister” for First Amendment purposes. The ministerial exception thus bars her employment-discrimination claim.

Judge Motz filed a concurring opinion responding to Judge Richardson's opinion. Judge Motz said in part:

Make no mistake: the conception of the ministerial exception advanced by my concurring colleague is no mere application of existing precedent. It is a dramatic broadening of the ministerial exception that would swallow the rule....

The ministerial exception effectively “gives an employer free rein to discriminate because of race, sex, pregnancy, age, disability, or other traits protected by law when selecting or firing their ‘ministers,’ even when the discrimination is wholly unrelated to the employer’s religious beliefs or practices.”... It is no exaggeration to say that the ministerial exception “condones animus.”... Thus, the necessary implication of greatly expanding the ministerial exception is that far fewer employees would be protected from employment discrimination.

When it comes to key religious figures, this is a necessary tradeoff....

But Palmer was not a key religious figure or a minister. She was an art professor. Indeed, if basic acts like praying with one’s students and referencing God in the classroom are enough to transform an art professor into the type of key faith messenger who qualifies for the ministerial exception, one can only speculate as to who else might qualify for the exception...

An employee does not shed her right to be free from workplace discrimination simply because she believes in God, prays at work, and is employed by a religious entity.

Sunday, July 02, 2023

Indiana Supreme Court Rejects Facial Challenge to State's Abortion Law

In Members of the Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., (IN Sup. Ct., June 30, 2023), the Indiana Supreme Court rejected a facial challenge under the Indiana Constitution to Indiana's 2022 abortion law. The law bans abortions except when necessary to save a woman’s life or to prevent a serious health risk, or during limited time periods when there is a lethal fetal anomaly or when the pregnancy results from rape or incest. Interpreting the broad language of Art. I, Sec, 1 of the Indiana Constitution, the court said in part:

... Article 1, Section 1 protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk. Yet, this holding does not support Plaintiffs’ claim for a preliminary injunction. That is because they framed their claim as a facial challenge to the entire statute in all conceivable circumstances rather than an as-applied challenge to the law’s application in any particular set of circumstances where a pregnancy endangers a woman’s life or health. So this appeal does not present an opportunity to establish the precise contours of a constitutionally required life or health exception and the extent to which that exception may be broader than the current statutory exceptions....

We do not diminish a woman’s interest in terminating a pregnancy because, for starters, it is a privately held interest—informed by privately held considerations. Moreover, we recognize that many women view the ability to obtain an abortion as an exercise of their bodily autonomy. Yet, and however compelling that interest is, it does not follow that it is constitutionally protected in all circumstances....

In sum, our State’s history and traditions, as reflected in our Court’s precedents, indicate that the common understanding of Section 1 among those who framed and ratified it was that it generally left the General Assembly with broad legislative discretion to limit abortion....

Justice Slaughter filed an opinion concurring only in the judgment, saying in part:

For the first time in our state’s history, the Court holds that the Indiana Constitution protects a woman’s right to terminate her pregnancy. The Court’s unprecedented conclusion is both momentous and unnecessary on this record. The only issue before us is the propriety of the trial court’s preliminary injunction. That narrow issue can, and thus should, be resolved without reaching any of the constitutional questions upon which the Court opines gratuitously...

Justice Goff filed an opinion concurring in part and dissenting in part, saying in part:

To be sure, Senate Bill 1 itself recognizes a woman’s liberty interest, if only in part, by allowing time-limited exceptions for victims of rape and incest and pregnancies involving a lethal fetal anomaly. But by holding that the legislature retains the discretion “to prohibit abortions which are unnecessary to protect a woman’s life or health,” the Court puts these exceptions at risk, effectively inviting the legislature to repeal even the most basic protections to a woman’s liberty....

It seems to me that reproductive liberty is too personal and too important for the General Assembly to set at naught when weighed in the balance against the protection of fetal life.

Indy Star reports on the decision.