Challenges To School COVID Mitigation Requirements Are Dismissed

 In Tracy v. Stephens, (D UT, Nov. 1, 2022), a Utah federal district court dismissed claims that plaintiffs' rights were violated by school district COVID orders requiring the wearing of masks and social distancing.  The court said in part:

Plaintiffs have not identified what speech or type of speech was suppressed, meaning the court cannot apply the correct test to determine whether a regulation of it was permissible.... Plaintiffs have also not pleaded facts allowing for a plausible inference that by declining to wear masks or face coverings, or to participate in social distancing or isolation measures, they were engaged in inherently expressive conduct protected by the First Amendment....

Plaintiffs assert the Free Exercise Clause is implicated because they “hold a deeply held religious belief against the covering of their faces as this would violate their religious conscience,” and that they have a “God-given right to refuse unwanted medical treatment.”... But the Amended Complaint does not contain sufficient facts for the court to engage in the required analysis. Plaintiffs neither sufficiently identify the religious practices targeted and suppressed by Defendants, nor the provision(s) of the regulation(s) used by Defendants to target these practices. But Plaintiffs do identify an exemption process that would seemingly have allowed them to avoid the regulations’ requirements....

The court also dismissed plaintiffs' freedom of association, due process, equal protection, 4th, 9th and 13th Amendment, Civil Rights Act, conspiracy and state constitutional claims. 

Profs Sue University for Including Caste in Antidiscrimination Policy

Suit was filed on Monday in a California federal district court by two California State University professors challenging the University's inclusion of discrimination on the basis of caste in its Interim Antidiscrimination Policy adopted in January. The complaint (full text) in Kumar v. Koester, (CD CA, filed 10/17/2022) alleges in part:

[T]he Interim Policy seeks to define the Hindu religion as including “caste” and an alleged oppressive and discriminatory caste system as foundational religious tenets. That not only is an inaccurate depiction of the Hindu religion, but the First Amendment to the United States Constitution prohibits California and CSU from defining the contours of Hinduism (or any religion)....

The Interim Policy also singles out only CSU’s Hindu employees, professors and students, as well as those of Indian/South Asian origin. No other Protected Status in the Interim Policy addresses any specific ethnicity, ancestry, religion or alleged religious practice,,,

Plaintiffs seek a determination that the term “caste” as used in the Interim Policy is unconstitutionally vague, and the Interim Policy as drafted violates the rights of Plaintiffs (and similarly situated individuals) under the First and Fourteenth Amendments to the United States Constitution, as well as their rights under the California Constitution.

The Hindu American Foundation issued a press release announcing the filing of the lawsuit.

Religious Questioning Of Muslim Travelers By Border Officers Upheld

In Kariye v. Mayorkas, (CD CA, Oct. 12, 2022), three Muslim plaintiffs sued the Department of Homeland Security alleging that border officers routinely and intentionally single out Muslim-American travelers to demand they answer religious questions. The court, in a 71-page opinion in its official format, first dismissed plaintiffs' Establishment Clause challenge. Applying the Supreme Court's test articulated in Kennedy v. Bremerton School District, the court said in part:

The court finds substantial legal authority supporting the government's historically broad authority to implement security measures at the border.... Additionally, the court finds substantial authority holding that maintaining border security is a compelling government interest.

The court rejected plaintiffs' free exercise claim, finding that plaintiffs had not sufficiently alleged a substantial burden on their religious exercise. It additionally concluded that even if there was a substantial burden, officers' questioning was narrowly tailored to advance a compelling governmental interest in protecting borders and preventing potential terrorism.

The court also rejected freedom of association, retaliation, equal protection and RFRA challenges to practices of border officers.

Certiorari Denied In Fetal Personhood Case

The U.S. Supreme Court today denied review in Doe v. McKee,  (Docket No. 22-201, certiorari denied 10/11/2022) (Order List). The certiorari petition  asked the Supreme Court to review a decision of the Rhode Island Supreme Court that held unborn fetuses do not have due process and equal protection rights under the U.S. Constitution and do not have standing to challenge Rhode Island's Reproductive Privacy Act which granted the right to abortions consistent with Roe v. Wade. CNN reports on the Court's action. [Thanks to Thomas Rutledge for the lead.]

Alternatives For Employees With Religious Exemptions From Vaccination Are Not Discriminatory

In Dollar v. Goleta Water District, (CD CA, Oct. 3, 2022), a California federal district court held that the COVID vaccination policy for employees of the Goleta Water District did not discriminate on the basis of religion against employees who obtained a religious exemption. Plaintiffs contended that the District's policy is discriminatory because it imposes special mask and testing requirements and requires authorization to enter certain buildings for plaintiffs because they have a religious exemption. The court said in part:

[P]laintiffs have not alleged that employees who receive exemptions on religious grounds are treated any differently from employees who receive exemptions on non-religious grounds. Instead, plaintiffs have only alleged that the policy treats them differently from other employees because of their vaccination status, not because of their religion.

Michigan Ban On Use Of State Funds For Private And Religious Schools Upheld

In Hile v. State of Michigan, (WD MI, Sept. 30, 2022), a Michigan federal district court dismissed free exercise and equal protection challenges to a provision in the Michigan Constitution that prohibits the use of state funds, tax benefits or vouchers to aid "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school" or student attendance at such schools. Plaintiffs contend that the provision reflects an anti-religious and anti-Catholic sentiment. Plaintiffs base their challenge on the unavailability of Michigan's Section 529 savings plan for them to use to send their children to private religious schools. The state, however, argues that its Plan is not available for any private high school tuition. Plaintiffs argue that the state is misinterpreting its own legislation.  The court said in part:

The court is satisfied that principles of comity preclude merits consideration of plaintiffs’ First Amendment Challenges because they would require this court to disregard the State’s own interpretation and consistent application of its own tax law, neither of which raises First Amendment concerns. Plaintiffs can take the issue up with Michigan tax authorities in the ordinary administration of the Michigan income tax collection process. But unless and until Michigan changes the interpretation and application of its own tax law, and replaces it with the version Plaintiffs say it should have, there is no First Amendment issue.

The court also rejected plaintiffs' equal protection challenge, saying that it is unwilling to expand the "political process" doctrine. Plaintiffs had argued that by placing the limits on use of state funds in the state Constitution, the state had burdened their ability to seek changes in the law. Bridge Michigan reports on the decision.

Special Permit Requirement Only For Houses Of Worship Violates 1st Amendment

In Omar Islamic Center Inc. v. City of Meriden, (D CT, Sept. 30, 2022), a Connecticut federal district court held that a zoning regulation that required places of worship to obtain a special permit to operate in areas zoned M-4 (Planned Industrial District) violates plaintiffs' 1st Amendment free exercise rights. Plaintiff sought to use a vacant commercial building as a mosque. The court said in part:

Regulations allowed hotels, motels, and convention centers, as well as numerous shops and stores including bakeries, restaurants, and theaters, to operate as of right in the M-4 district, without needing to apply for a special permit.... Places of worship, however, were required to obtain a special permit before opening their doors. It is clear to the Court that, under the test set forth by the Supreme Court in Tandon, at least some comparable secular activities were therefore treated more favorably than religious activities under the Regulations. Thus, the law is not neutral and generally applicable under free exercise principles, and it must be examined with strict scrutiny.

Defendants have not defended the law under either a rational basis or strict scrutiny standard. In fact, they have proffered no rationale underlying the law whatsoever.

The court also found that the regulation violated plaintiff's equal protection rights. The court refused to pass on plaintiff's RLUIPA claims because it was unclear whether or not plaintiff had an actual property interest in the building.

Jewish Plaintiffs Challenge New York's Ban On Firearms In Places of Worship Or Religious Observation

Suit was filed yesterday in a New York federal district court challenging the constitutionality of recently enacted New York Penal Law §265.01-e which bans possession of a firearm, rifle or shotgun in "any place of worship or religious observation." The suit was brought by a modern Orthodox Jewish synagogue, its president and another Jewish individual. The complaint (full text) in Goldstein v. Hochul, (SD NY, filed 9/29/2022) details a number of recent incidents of violence against Jews and alleges in part:

91. Penal Law § 265.01-2(2)(c) discriminates against religious beliefs and regulates and prohibits conduct because it is undertaken for religious reasons.

92. The Statute makes it more dangerous to attend a “sensitive location” than it would be had that law not been enacted, because it strips away the ability for people in that sensitive location to defend themselves. The Statute singles out religious locations for this elevated, state-sanctioned, danger. This acts as a deterrent for law-abiding people to enter such “sensitive locations,” including places of worship....

94. By singling out places of worship and religious observation for reduced Second Amendment rights, the Statute constitutes a religious gerrymander....

The suit also alleges that the statute is unconstitutionally vague, saying in part:

111. As observant Jews, nearly every location is a place of religious observation for plaintiffs Goldstein and Ornstein....

It also contends that the law violates the Second Amendment, the Equal Protection Clause and various provisions of the New York State Constitution. Hamodia reports on the lawsuit.

11th Circuit: No Liability For Withdrawing Permission For Religious Group To Use After School Classrooms

In Chabad Chayil, Inc. v. School Board of Miami-Dade County, Florida, (11th Cir., Sept. 8, 2022), the U.S. 11th Circuit Court of Appeals affirmed the district Court' dismissal of free exercise, equal protection and due process claims brought by a Jewish organization that ran a popular after-school Hebrew program for more than ten years using public school classrooms. In 2019, after a complaint and investigation of whether Chabad complied with the rules for use of school facilities without paying a fee, the Miami-Dade County superintendent withdrew permission for Chabad use of school classrooms. Chabad sued. The court held that plaintiff had not shown the elements necessary to assert liability against either the school board or the Inspector General's office that investigated complaints against Chabad.

Michigan Court Permanently Enjoins Enforcement Of Pre-Roe Abortion Law

In Planned Parenthood of Michigan v. Attorney General of the State of Michigan, (MI Ct. Cl., Sept. 7, 2022), the Michigan Court of Claims issued a permanent injunction barring enforcement of Michigan's pre-Roe abortion ban.  The order follows on the Court's previous preliminary injunction against enforcement. It held that enforcement of the ban would violate both the due process and equal protection clauses of the Michigan constitution. The Court rejected the argument that it should interpret the due process clause in the state Constitution to track that of the due process clause in the U.S. Constitution. The court said in part:

... Dobbs relied on a version of history that began in the 13th Century and ended in 1868, when the federal Due Process Clause was ratified. Almost a century, two world wars, a constitutional amendment granting women the right to vote, the emergence of the civil rights movement, and a sea change in the laws regarding women's status in society separate the adoption of the fourteenth amendment from the ratification of our 1963 Constitution.... A court charged with an examination of the ideas giving rise to a 1963 Constitution is not assisted by an historical analysis of a clause drafted in a far different social and legal environment. What was "deeply rooted" in history and tradition in 1868, a focal point in Dobbs, bears little resemblance to the understanding of personal freedom, particularly for woman and people of color, motivating those who drafted and ratified our 1963 Constitution. The Court therefore rejects the intervenors' claim that this Court must reflexively adhere to Dobb's conclusions about the reach of the federal Due Process Clause....

By depriving women who choose abortion the ability to exercise a fundamental right while protecting the same right for pregnant women who choose to continue their pregnancies, MCL 750.14 violates Michigan's Equal Protection clause....

By criminalizing abortion, MCL 750.14 prevents a woman who seeks to exercise a constitutional right from controlling her ability to work or to go to school, and thereby determining for herself the shape of her present and future life.

Responding to a state Court of Appeals opinion that the court of Claims previous preliminary injunction only binds the Attorney General and not independent county prosecutors, the Court ordered the Attorney General to serve a copy of the opinion and accompanying order on every county prosecuting attorney.

Michigan Governor Gretchen Whitmer issued a statement (full text) in support of the Court's decision. Bridge Michigan reports on the decision.

8th Circuit Upholds Injunction On Gender Transition Procedures Ban

In Brandt v. Rutledge, (8th Cir., Aug. 25, 2022), the U.S. 8th Circuit Court of Appeals affirmed an Arkansas district court's grant of a preliminary injunction against enforcement of Arkansas' ban on healthcare professionals providing gender transition procedures to anyone under 18, or referring minors for such procedures. Finding that the law violates the Equal Protection Clause, the court said in part:

[U]nder the Act, medical procedures that are permitted for a minor of one sex are prohibited for a minor of another sex. A minor born as a male may be prescribed testosterone or have breast tissue surgically removed, for example, but a minor born as a female is not permitted to seek the same medical treatment. Because the minor’s sex at birth determines whether or not the minor can receive certain types of medical care under the law, Act 626 discriminates on the basis of sex.

Arkansas’s characterization of the Act as creating a distinction on the basis of medical procedure rather than sex is unpersuasive.

Arkansas Times reports on the decision.

Sikh Marine Recruits Lose Bid For Turbans and Unshorn Hair During Recruit Training

In Toor v. Berger, (D DC, Aug. 24, 2022), the D.C. federal district court refused to grant a preliminary injunction to three Sikh Marine recruits who wanted to prevent enforcement of the Marine's uniform and grooming policies during recruit training while their case continues to be litigated. Sikh religious beliefs require plaintiffs to maintain an unshorn beard and hair, wear a turban and wear other religious items. Plaintiffs contend that denying accommodation of their religious practices violates RFRA, the Free Exercise Clause and the Equal Protection Clause. The court held that even if plaintiffs have shown a likelihood of success on the merits and irreparable injury, the balance of equities and the overall public interest favor the military at this preliminary stage of proceedings. The court said in part:

The Marines have thus "credibly alleged" that "training in [the] manner" that would be required by the requested injunction will "pose a serious threat to national security" by disrupting defendant's well established method of transforming recruits through the discipline of uniformity.

Georgia Abortion Law Challenged Under State Constitution

After the U.S. 11th Circuit Court of Appeals last week upheld Georgia's abortion laws against federal constitutional challenges, suit was filed Monday in a Georgia state trial court challenging Georgia's 6-week abortion ban under Georgia's state constitution. The complaint (full text) in Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., filed 7/26/2022) alleges in part:

91. Because federal constitutional law clearly prohibited pre-viability abortion bans when the Six-Week Ban was enacted in 2019, the Act is void ab initio and unenforceable....

92. By banning abortion from the earliest weeks of pregnancy and thus forcing pregnancy and childbirth upon countless Georgians, H.B. 481 violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy guaranteed by various provisions of the Georgia Constitution ... and (b) equal protection....

93. By specifically excluding pregnant Georgians experiencing an acute psychiatric emergency from H.B. 481’s “medical emergency” exception, H.B. 481 violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy....

94. By requiring Georgians pregnant as a result of rape/incest to disclose their assault to law enforcement as a condition of ending the pregnancy, H.B. 481 violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy ... and (b) equal protection....

95. By allowing district attorneys to access abortion patients’ personal medical records without due process protections, the Records Access Provision violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy...

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

Kentucky Abortion Bans Violate State Constitution

In EMW Women's Surgical Center v. Cameron, (KY Cir. Ct., July 22, 2022), a Kentucky state trial court issued a temporary injunction against enforcement of two statutes restricting abortions-- a six-week fetal heartbeat ban, and a ban on almost all abortions triggered by the overruling of Roe v. Wade. Relying on provisions of the Kentucky state constitution, the court found that the Trigger Ban constituted an unconstitutional delegation of legislative authority to the U.S. Supreme Court, and also concluded that the law is unconstitutionally vague. the court concluded that the six-week ban violates provisions of the Kentucky constitution protecting the right to privacy, equal protection and the prohibition on the establishment of religion and the protection of the free exercise of religion. The court said in part:

Defendants' witnesses ... argue that life begins at the very moment of fertilization and as such is entitled to full constitutional protection at that point. However, this is a distinctly Christian and Catholic belief. Other faiths hold a wide variety of views on when life begins and at what point a fetus should be recognized as an independent human being....

The General Assembly is not permitted to single out and endorse the doctrine of a favored faith for preferred treatment.... There is nothing in our laws or history that allows for such theocratic based policymaking.

AP reports on the decision.

UPDATE: A Kentucky appellate court lifted the injunction while the case is on appeal, and the Kentucky Supreme Court refused to reinstate the injunction but set the case for argument on Nov. 15. An ACLU press release reports on these developments.

Minnesota Abortion Restrictions Struck Down Under State Constitution

In Doe v. State of Minnesota, (MN Dist. Ct., July 11, 2022), a Minnesota state trial court judge in a 140-page opinion held that a series of state abortion restrictions violate various provisions in the Minnesota state Constitution. The court summarized its conclusions:

[T]his court concludes that Minnesota abortion laws relating to mandated physician care, hospitalization, criminalization, parental notification, and informed consent are unconstitutional. 

These abortion laws violate the right to privacy because they infringe upon the fundamental right under the Minnesota Constitution to access abortion care and do not withstand strict scrutiny. The parental notification law violates the guarantee of equal protection for the same reasons. The informed consent law also violates the right to free speech under the Minnesota Constitution, because it is misleading and confusing, and does not withstand intermediate scrutiny. Accordingly, this court is declaring those laws unconstitutional and permanently enjoining their enforcement.

Courthouse News Service reports on the decision.

Iowa Supreme Court Overrules 2018 Decision That State Constitution Strongly Protects Abortion Rights

In a complicated set of opinions that span 182 pages, the Iowa Supreme Court overruled their own 2018 decision (referred to in the opinion as "PPH II") and held by a vote of 5-2 that neither the due process nor the equal protection clause of Iowa's constitution grants a fundamental right to an abortion. It thus rejected subjecting abortion regulation-- here a new 24-hour waiting period-- to strict scrutiny under the state Constitution. However the court did not decide what level of scrutiny should apply.  This left the standard to be the undue burden test imposed by federal law. In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Sup. Ct., June 17, 2022), Justice Mansfield's majority opinion said in part:

[Law] professors [in an amicus brief] urge that adhering to a precedent when the membership of a court changes “refutes the cynical view that a supreme court is a political institution guided by the justices’ personal values, rather than the law.” But we know that the professors do not share that cynical view, so why do they ask us to act in fear of it? Shouldn’t we instead follow our solemn oaths to uphold the Iowa laws and constitution? In the end, court decisions should be—and we believe are—judged by the strength of their reasoning, not by the identity of the persons who wrote or joined them....

Constitutions—and courts—should not be picking sides in divisive social and political debates unless some universal principle of justice stands on only one side of that debate. Abortion isn’t one of those issues....

In summary, PPH II lacks textual and historical support. It is doctrinally inconsistent with prior Iowa jurisprudence concerning family rights that followed a balancing approach. Its rhetoric is one-sided. Its constitutional footing is unsound. While it is true that some other states have provided heightened protection for abortion rights, they have done so by invoking more relevant substantive constitutional guarantees—such as the right of privacy—not a procedural clause like due process.....

While 5 Justices concurred in that conclusion, 2 of those Justices in an opinion by Justice McDermott disagreed with the instructions on remand given in Justice Mansfield's opinion, saying in part:

I join almost all parts of the court’s opinion, including...  its overruling of ... PPH II.... But I dissent from my colleagues’ remand directing the district court to apply an “undue burden” standard, subject (apparently) to the standard being “litigated further” by the parties. In my view, we should emphatically reject—not recycle—Casey’s moribund undue burden test and instead direct the district court to apply the rational basis test to the plaintiffs’ constitutional challenge.

Chief Justice Christensen filed an opinion dissenting in part, saying: 

Out of respect for stare decisis, I cannot join the majority’s decision to overrule ... PPH II ... because I do not believe any special justification “over and above the [majority’s] belief ‘that the precedent was wrongly decided’ ” warrants such a swift departure from the court’s 2018 decision....

Since 2018, the makeup of our court has significantly changed with the appointment of four new justices to replace outgoing justices. Coincidentally, all four outgoing justices were part of the 5–2 majority that recognized a fundamental right to decide whether to continue or terminate a pregnancy in the 2018 case.

Justice Appel, who is the only Justice on the court who was part of the majority in 2018, filed an 88-page dissent, concluding in part:

The majority has chosen to simply rule that strict scrutiny is not the applicable test of a statute regulating abortion ... and has remanded the case to the district court for further consideration of other issues. The problem with this approach is twofold. First, the majority opinion grossly understates the importance of this life-changing abortion decision on women. Second, the majority opinion eliminates a strong, workable, and widely accepted barrier to governmental intrusion into the reproductive choices of a woman and invites us to stare into the standard-less abyss....

I have some thoughts to seek to salvage what can be salvaged from the decision. First, the district court must recognize the rights primacy of the Iowa Constitution and reject summarily a rational basis test, which is too often no test at all. Second, if a version of the undue burden test is to be adopted, it must be with teeth.

Des Moines Register reports on the decision. [Thanks to Scott Mange for the lead.]

Alabama Enjoined From Enforcing Ban On Medical Treatments For Transgender Minors

In Eknes-Tucker v. Marshall, (MD AL, May 13, 2022), an Alabama federal district court issued an injunction pending trial of  the portion of the Alabama Vulnerable Child Compassion and Protection Act that restricts transgender minors from being treated with puberty blockers and hormone therapies. The court said in part:

Parent Plaintiffs have a fundamental right to direct the medical care of their children. This right includes the more specific right to treat their children with transitioning medications subject to medically accepted standards. The Act infringes on that right and, as such, is subject to strict scrutiny. At this stage of litigation, the Act falls short of that standard because it is not narrowly tailored to achieve a compelling government interest. Accordingly, Parent Plaintiffs are substantially likely to succeed on their Substantive Due Process claim,

The court also found that parents were substantially likely to succeed on their equal protection challenge because "discrimination based on gender-nonconformity equates to sex discrimination." GLAD and other advocacy groups representing plaintiffs issued a press release announcing the decision.

Asatru Inmate Loses RLUIPA and Equal Protection Challenges

In Watkinson v. Alaska Department of Corrections, (9th Cir., May 2, 2022), the U.S. 9th Circuit Court of Appeals held that Alaska did not violate the rights of a prisoner who was a practitioner of Asatru when it prevented him from using firewood purchased through the Prison Welfare Fund (PWF) for religious purposes, and when it did not allow use of the Prison Welfare Fund for inmates to pool funds to purchase juice and honey in bulk. The court said in part:

RLUIPA does not require a state to facilitate or subsidize the exercise of religion or pay for devotional accessories.... ADOC policies do not deny Plaintiff access to any item necessary for his religious ceremonies, and Plaintiff may procure all necessary items without access to the PWF. Defendants’ policies thus did not substantially burden the exercise of Plaintiff’s religious practice...

The court also rejected plaintiff's 1st Amendment claim.  In addition it rejected his Equal Protection claim, even though prison authorities allowed a Native American cultural group to use PWF-purchased firewood at the prison sweat lodge. According to the court:

The prison director testified that the groups are not similarly situated because the sweat lodge is a cultural rather than a religious activity.

New Alabama Ban On Gender Transition Procedures For Minors Is Challenged

Suit was filed last week in an Alabama federal district court challenging SB 184, the Alabama Vulnerable Child Compassion and Protection Act (full text), which prohibits medical procedures or the prescription of drugs for a minor child to alter the child's gender or delay puberty. The law was given final passage by the legislature on April 7 and signed by the governor on the next day. Parents of two transgender teenagers and two physicians filed suit 3 days later. The complaint (full text) in Ladinsky v. Ivey, (ND AL, filed 4/11/2022), contends that the law is pre-empted by a provision in the Affordable Care Act, that the law violates equal protection, parents rights to direct medical care of their children, and is void for vagueness. Courthouse News Service reports on the lawsuit.

Preacher's Challenge To Large Group Vigils On Capitol Grounds Fails

In Mahoney v. United States Capitol Police Board, (D DC, April 5, 2022), a D.C. federal district court refused to grant a preliminary injunction to a clergyman who was denied a permit to hold a large prayer vigil on part of the Capitol grounds.  Groups of 20 or more were permitted at that location only if sponsored by a member of Congress. The court rejected plaintiff's selective enforcement claim, saying in part:

Members of Congress sponsoring or organizing demonstrations on the Capitol Grounds present “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.”...  Consider the numerous ways in which Members are different from non-Members while on the Capitol Grounds. In such a setting, for instance, the Member is at her workplace, she enjoys private access to many areas that are otherwise restricted, and she is carrying out her unique constitutional duties as a legislator and representative of her constituents. Numerous legal principles recognize this reality and accord Members unique status while on the Capitol Grounds.

The court also found that plaintiff was unlikely to succeed on his freedom of assembly claim.