Wednesday, June 18, 2025

Supreme Court Upholds Tennessee's Ban on Gender Affirming Care for Minors

In United States v. Skrmetti,(Sup.Ct., June 18, 2025), the U.S. Supreme Court today by a vote of 6-3 upheld Tennessee's law that bars both hormonal and surgical gender transition procedures for minors. The case generated 5 separate opinions spanning 118 pages. Chief Justice Roberts' majority opinion held that the Tennessee law does not trigger heightened scrutiny. He said in part:

This Court has not previously held that transgender individuals are a suspect or quasi-suspect class. And this case, in any event, does not raise that question because SB1 does not classify on the basis of transgender status. As we have explained, SB1 includes only two classifications: healthcare providers may not administer puberty blockers or hormones to minors (a classification based on age) to treat gender dysphoria, gender identity disorder, or gender incongruence (a classification based on medical use). The plaintiffs do not argue that the first classification turns on transgender status, and our case law forecloses any such argument as to the second....

... [T]here is a rational basis for SB1’s classifications. Tennessee concluded that there is an ongoing debate among medical experts regarding the risks and benefits associated with administering puberty blockers and hormones to treat gender dysphoria, gender identity disorder, and gender incongruence. SB1’s ban on such treatments responds directly to that uncertainty....

Justice Thomas filed a concurring opinion, saying in part: 

This case carries a simple lesson: In politically contentious debates over matters shrouded in scientific uncertainty, courts should not assume that self-described experts are correct.

Deference to legislatures, not experts, is particularly critical here. Many prominent medical professionals have declared a consensus around the efficacy of treating children’s gender dysphoria with puberty blockers, cross-sex hormones, and surgical interventions, despite mounting evidence to the contrary. They have dismissed grave problems undercutting the assumption that young children can consent to irreversible treatments that may deprive them of their ability to eventually produce children of their own. They have built their medical determinations on concededly weak evidence. And, they have surreptitiously compromised their medical recommendations to achieve political ends.

Justice Barrett, joined by Justice Thomas, filed a concurring opinion, saying in part:

Because the Court concludes that Tennessee’s Senate Bill 1 does not classify on the basis of transgender status, it does not resolve whether transgender status constitutes a suspect class.... I write separately to explain why, in myview, it does not....

Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy—ranging from access to restrooms to eligibility for boys’ and girls’ sports teams. If laws that classify based on transgender status necessarily trigger heightened scrutiny, then the courts will inevitably be in the business of “closely scrutiniz[ing] legislative choices” in all these domains....

Justice Alito filed an opi nion concurring in part, saying in part:

I do notjoin Part II–A–2 of the opinion of the Court, which concludes that SB1 does not classify on the basis of “transgender status.” There is a strong argument that SB1does classify on that ground, but I find it unnecessary to decide that question. I would assume for the sake of argument that the law classifies based on transgender status, but I would nevertheless sustain the law because such a classification does not warrant heightened scrutiny. I also do not join Part II–A–3 of the Court’s opinion because I do not believe that the reasoning employed in Bostock v. Clayton County ... is applicable when determining whether a law classifies based on sex for Equal Protection Clause purposes.

Justice Sotomayor filed a dissenting opinion, joined by Justice Jackson and joined in part by Justice Kagan, saying in part:

Tennessee’s law expressly classifies on the basis of sex and transgender status, so the Constitution and settled precedent require the Court to subject it to intermediate scrutiny. The majority contorts logic and precedent to say otherwise, inexplicably declaring it must uphold Tennessee’s categorical ban on lifesaving medical treatment so long as “‘any reasonably conceivable state of facts’” might justify it... Thus, the majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims....

Justice Kagan filed a dissenting opinion, saying in part:

I take no view on how SB1 would fare under heightened scrutiny.... So I would both start and stop at the question of what test SB1 must satisfy. As JUSTICE SOTOMAYOR shows, it is heightened scrutiny...

SCOTUSblog reports on the decision.

Religious Liberty Commission Holds First Hearing

On June 16, the new Justice Department Religious Liberty Commission held it first hearing at the Museum of the Bible in Washington, DC. Video of the full hearing is available in three parts on YouTube: Part 1, Part 2, Part 3OSV News reports on some of the testimony. A critical slant on the hearing was published by Americans United.

California May Proceed With False Advertising Charges Against Abortion Pill Reversal Promoters

In Culture of Life Family Services, Inc. v. Bonta, (SD CA, June 13, 2025), a California federal district court refused to enter a preliminary injunction to prevent California's attorney general from moving ahead with an enforcement action against a Catholic community health clinic that promoted "abortion pill reversal". California claimed that the clinic violated Unfair Commpetition and False Advertising laws. The clinic contended its promotion of abortion pill reversal is speech protected by the First Amendment. The court said in part:

The Court has already found that the challenged laws are not content-based and do not warrant application of a strict scrutiny standard.... But as content-neutral regulations, they are generally subject to heightened scrutiny: the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open....

The court concluded that the clinic was engaged in commercial speech and that, "it would be at the very least potentially misleading to state that supplemental progesterone can “reverse” an abortion." It went on to conclude that a number of other staements that the clinic made regarding abortion pill reversal are, or are potentially, false and misleading. The court went on to say in part:

Although this regulation involves reproductive rights, AG Bonta is not aiming to limit the actual practice of APR. And reproductive choices are not apart from consumer choices: women, in exercising their reproductive rights, are also consumers who must be given the correct information to make knowledgeable decisions for themselves....

In sum, Plaintiff cannot carry its burden of showing likelihood of success. Commercial speech that is inherently false or misleading does not receive First Amendment protection. For potentially misleading speech, the AG has more than carried his burden under Central Hudson.

Monday, June 16, 2025

Cert. Granted In Litigation Over Investigatory Demands

The U.S Supreme Court today granted review in First Choice Women's Resource v. Platkin, (Docket No. 24-781, certiorari granted 6/16/2025). (Order List). The petition for certiorari describes the complex fact situation involved:

New Jersey’s Attorney General served an investigatory subpoena on First Choice Women’s Resource Centers, Inc., a faith-based pregnancy center, demanding that it turn over most of its donors’ names. First Choice challenged the Subpoena under 42 U.S.C. 1983 in federal court, and the Attorney General filed a subsequent suit to enforce it in state court. The state court granted the Attorney General’s motion to enforce the Subpoena but expressly did not decide First Choice’s federal constitutional challenges. The Attorney General then moved in state court to sanction First Choice. Meanwhile, the district court held that First Choice’s constitutional claims were not ripe in federal court.

The Third Circuit affirmed in a divided percuriam decision.. [T]he majority concluded First Choice’s claims were not yet ripe because First Choice could litigate its constitutional claims in state court.... It did not address the likely loss of a federal forum once the state court rules on the federal constitutional issues.

The question presented is: Where the subject of a state investigatory demand has established a reasonably objective chill of its First Amendment rights, is a federal court in a first-filed action deprived of jurisdiction because those rights must be adjudicated in state court?

Supreme Court GVR's Battle Over Health Insurance Abortion Coverage

In Roman Catholic Diocese v. Harris, (Sup. Ct., June 16, 2025), the U.S. Supreme Court granted certiorari, vacated the judgment of New York's highest court and remanded the case for further consideration in light of the Supreme Court's recent decision in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission. At issue in the case that was gvr'd today was whether the "religious employer" exemption to the state's requirement that health insurance policies cover medically necessary abortion services is too narrow.  The exemption is only available to entities whose purpose is to inculcate religious values and that primarily employ and serve persons who share their religious tenets. (See prior posting.)

Texas Supreme Court Interprets Religious Services Clause of State Consitution

As previously reported, in a suit by members of the Lipan Apache tribe challenging improvements to a park that destroyed  their ability to use a sacred site for certain religious ceremonies, the U.S. 5th Circuit Court of Appeals certified to the Texas Supreme Court a question on the meaning of a 2021 amendment to the Texas Consitution that prohibits the government from interfering with religious services. In Perez v. City of San Antonio,(TX Sup. Ct., June 13, 2025), the Texas Supreme Court in an 8-1 opinion said in part:

When the Texas Religious Services Clause applies, its force is absolute and categorical, meaning it forbids governmental prohibitions and limitations on religious services regardless of the government’s interest in that limitation or how tailored the limitation is to that interest, but the scope of the clause’s applicability is not unlimited, and it does not extend to governmental actions for the preservation and management of public lands. We express no opinion on whether the Free Exercise Clause or the Texas RFRA protect the religious liberties Perez asserts, and we leave it to the federal courts to apply our answer in the underlying case.

Justice Sullivan filed a dissenting opinion, saying in part:

With deepest respect for my esteemed friends on the Fifth Circuit and on our Court, I would decline this expansive invitation to issue an advisory opinion on a “new provision” of our Bill of Rights that “[n]o Texas court has construed.”

Friday, June 13, 2025

Court Denies TRO In Challenge To Trump's Executive Orders on Antisemitism

In McClanahan v. Trump, (WD MO, June 9, 2025), a Missouri federal district court refused to grant a temporary restraining order in a challenge to President Trump's Executive Orders directing federal agencies to use the International Holocaust Remembrance Alliance (“IHRA”) definition of antisemitism in enforcing Title VI of the Civil Rights Act and which direct federal agencies to withhold funding from universities that do not bar criticism of Israel.  According to the court:

Plaintiff brings his action challenging the constitutionality of Executive Orders 13899 and 14188 based on alleged violations of his First Amendment Right of free speech, Violation of his Fifth Amendment Right under the Due Process Clause; and violation of the Establishment Clause of the First Amendment....

Plaintiff identifies five constitutional arguments he believes have a likelihood of succeeding on the merits. Those arguments are First Amendment – Viewpoint Discrimination; First Amendment – Chilling Effect; First Amendment – Right to Petition; Establishment Clause; and Fifth Amendment – Due Process and Vagueness. Defendants argue that Plaintiff has alleged not facts indicating a reasonable belief that he will lose his federal benefits and no link betweean y prospective loss of his federal benefits and the challenged executive orders. 

The court concluded that plaintiff's likelihood of success on any of these claims was low.

Thursday, June 12, 2025

Supreme Court Review Sought In High School Football Game Prayer Dispute

A petition for certiorari (full text) was filed with the U.S.Supreme Court last week in Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., (Sup. Ct., cert. filed 6/6/2025).In th e case, the U.S. 11th Circuit Court of Appeals rejected free speech and free exercise claims by a Christian school that was refused the use of a stadium's public address system for a pre-game prayer at the FHSAA state championship football game in which it was playing. (See prior posting).

Wednesday, June 11, 2025

DOJ Sues California Coffee House for Discriminating Against Jewish Customers

On Monday, the Justice Department filed suit in a California federal district court against an Oakland, California coffee house alleging violations of Title II, the Public Accommodation provisions, of the 1964 Civil Rights Act. The suit alleges that the coffee house refuses to serve Jewish patrons.  The complaint (full text) in United States v. Harara, (ND CA, filed 6/9/2025), alleges in part:

Among the drinks the coffee house sells are "Iced In Tea Fada," an apparent reference to intifada and "Sweet Sinwar." The coffee house announced these new drinks on Instagram on the one-year anniversary of the October 7, 2023 Hamas terrorist attacks on Israel....

The Justice Department's press release announcing the filing of the suit summarizes the discrimination charges in the complaint, saying in part:

The lawsuit ... alleges that defendants discriminated against Jewish customers through policies and practices that denied them the full and equal enjoyment of the Jerusalem Coffee House’s services, accommodations, and privileges. Specifically, the lawsuit alleges that on two separate occasions, Harara ordered Jewish customers — identified because they were wearing baseball caps with Stars of David on them — to leave the coffee house. During one incident, an employee told a Jewish customer who was trying to make a purchase, “You’re the guy with the hat. You’re the Jew. You’re the Zionist.  We don’t want you in our coffee shop. Get out.” During another incident, Harara accused another Jewish customer who was with his five-year-old son of wearing a “Jewish star,” being a “Zionist,” and supporting “genocide.” Harara repeatedly demanded that the customer and his son leave and falsely accused them of “trespassing” to the Oakland police....

Tuesday, June 10, 2025

Iowa Enacts Law Allowing Released-Time Religious Instruction in Schools

On June 6, Iowa Governor Kim Reynolds signed a bill that gives students in public and accredited nonpublic schools the right to attend up to five hours per week of off-site released time religious instruction offered by private organizations. HF 870 (full text) provides that the students must agree to make up any school work that they do not complete while attending the religious classes. The new law also provides:

A child’s parent, guardian, or legal or actual custodian ... who alleges that a school district has violated this section may bring a civil action for injunctive relief and actual damages against the school district....

ADF issued a press release commenting on the new law.

NYC Mayor Adams Signs Executive Order on Antisemitism

On June 8, New York City Mayor Eric Adams signed Executive Order No. 52, Defining Antisemitism (full text), which instructs New York City Agencies to "consider as appropriate, the IHRA Working Definition of Antisemitism ... as well as the 11 contemporary examples." The Forward, reporting on Mayor Adams' action, said in part:

Mayor Eric Adams is getting the jump on his rivals in the November mayoral race by adopting a controversial definition of antisemitism, a key issue in the crowded campaign....

Adams has made combating antisemitism central to his campaign. Elected as a Democrat in 2021, he has since left the party and is running for reelection on an independent line dubbed “End Antisemitism.”...

Former Gov. Andrew Cuomo, former Controller Scott Stringer and investor Whitney Tilson pledged to adopt the IHRA definition if elected. Others, including Brad Lander, who is Jewish, have argued that the definition would suppress criticism of Israeli policy.

Zohran Mamdani, a Democratic Socialist and a vocal critic of Israel who identifies as anti-Zionist, has spoken out against the use of measures which he says silence Palestinian voices and their allies. Mamdani is running second behind front-runner Cuomo.

Monday, June 09, 2025

Recent Articles of Interest

From SSRN:

From SmartCILP: