Wisconsin Supreme Court: Harassment Injunction Against Anti-Abortion Protester Vacated

In Kindschy v. Aish, (WI Sup. Ct., June 27, 2024), the Wisconsin Supreme Court ordered a trial court to vacate a harassment injunction issued against an anti-abortion protester.  At issue were allegedly threatening statements made to nurse practitioner Nancy Kindschy on three different dates as she left work at a family planning clinic. For example, defendant Brian Aish warned Kindschy that she "had time to repent, that 'it won't be long before bad things will happen to you and your family,' and that 'you could get killed by a drunk driver tonight.' " The court said in part:

We conclude that the injunction is a content-based restriction on Aish's speech, and therefore complies with the First Amendment only if: (1) Aish's statements were "true threats" and he "consciously disregarded a substantial risk that his [statements] would be viewed as threatening violence;" or (2) the injunction satisfies strict scrutiny; that is, it is narrowly tailored to achieve a compelling state interest.... On the record before us, we hold that the injunction fails to satisfy either of these two standards. We therefore reverse the decision of the court of appeals and remand to the circuit court with instructions to vacate the injunction.

The court explained further:

In this case, the circuit court's harassment injunction was issued before Counterman [v. Colorado] was decided [by the U.S. Supreme Court]. The circuit court therefore did not evaluate whether Aish's statements were true threats, or whether he "consciously disregarded a substantial risk that his communications would be viewed as threatening violence." ... Because the circuit court failed to make clear findings regarding Aish's subjective mental state as it relates to his statements to Kindschy, we need not decide whether Aish's statements were true threats. Whether they were true threats or not, the injunction cannot be justified on true-threats grounds.,,,

Justice Bradley filed a concurring opinion, saying in part:

On their face, Aish's statements cannot be interpreted as true threats.

Aish uttered words of caution or warnings, not threats of violence....

More importantly, none of the three statements suggested Aish or a co-conspirator would be the one to cause any harm to Kindschy. At most, the statements suggested unaffiliated third parties could cause Kindschy harm, like a "drunk driver."

Thomas More Society issued a press release announcing the decision.

Pro-Life Pregnancy Centers May Move Ahead with Challenges to Vermont Regulations

 In National Institute of Family and Life Advocates v. Clark, (D VT, June 14, 2024), a Vermont federal district court allowed three pro-life pregnancy centers to move ahead with free speech challenges to Vermont's regulation of limited-service pregnancy centers. At issue is a prohibition on disseminating misleading information about the services offered by such pregnancy centers as well as a provision making health care professionals at these pregnancy centers responsible for the conduct and speech of non-licensed individuals.  The statute also provides that offering services to reverse a medication abortion constitutes unprofessional conduct by health care workers at the centers. The court rejected the state's claim that the speech being regulated is commercial speech or is regulation of professional conduct that merely incidentally regulates speech. It allowed plaintiffs to move ahead with their claims that the statutes discriminate on the basis of the viewpoint. However, the court dismissed plaintiffs' vagueness claims. ADF issued a press release announcing the decision.

State Funding of Only Secular Home-School Materials Upheld

In Woolard v. Thurmond, (ED CA, June 10, 2024), a California federal district court rejected challenges by parents of children enrolled in home study programs through California public charter schools to the requirement that state funds be used only for secular instructional materials. Parents contended that refusing to fund faith-based curricular materials denied families equal access to state benefits solely because of their religious nature.  The court disagreed, saying in part:

The state action of failing to provide requested religious curriculum is not an infringement on Plaintiffs’ freedom of exercise.  As confirmed in Plaintiffs’ own cited case, Carson v. Makin, states are allowed to provide a strictly secular education in its public schools....  A strictly secular education does not substantially burden the Plaintiffs’ practice of religion....

This case involves California’s laws and regulations for state funded public schools, not private schools.  There are no “public benefits” in the form of grants or otherwise that the state is excluding Plaintiffs from....

Texas Must Pay FFRF $346K Attorneys' Fees by August 5

 Freedom From Religion Foundation, Inc. v. Abbott, (WD TX, June 5, 2024), is an opinion and order requiring the state of Texas to pay Freedom From Religion Foundation an award of attorneys' fees and costs totaling $346,500 that had been entered against the state in January 2024.  The award grew out of long-running litigation challenging the state's action in 2015 removing from the state Capitol building FFRF's Bill of Rights Nativity display. (See prior posting.) Texas contended that under state law, the judgment against it could only be paid through an appropriation from the state legislature which would come on September 1, 2025, at the earliest. The court said in part:

The Court finds that it is empowered to compel execution of the judgment. Given that Defendants maintain that they lack the ability to disburse these funds prior to the end of next year, it appears to the Court that “an order directing the responsible state official to satisfy the judgment out of state funds is the only reasonable way to ensure compliance with a valid federal judgment.”... While the Court acknowledges that execution of the judgment is a drastic step, the Court believes that this step is warranted to ensure that FFRF timely recovers for Defendants’ federal civil rights violation. Texas “may not successfully hide behind state procedural shields to avoid the consequences of a valid district court judgment effectuating an appropriate § 1988 award.” 

The court ordered this payment to be made by August 5, 2024. It also allowed FFRF to recover for attorneys' fees and costs incurred in enforcing payment of the prior award.

Suit Challenges Vermont Foster Care Rules on Sexual Orientation and Gender Identity

Suit was filed yesterday in a Vermont federal district court by two couples challenging a policy adopted by the state foster care agency relating to sexual orientation, gender identity/ expression (SOGIE). Plaintiffs allege that the policy is inconsistent with their Christian religious beliefs. The complaint (full text) in Wuoti v. Winters, (D VT, filed 6/4/2024) alleges in part:

According to the Department, to meet the “needs of each foster child” under Rule 301 (emphasized), all parents must demonstrate that they can support any hypothetical child’s SOGIE....

All foster families must show that they will unconditionally support and affirm a child’s desire to dress, cut their hair, or wear accessories to express their stated gender identity,,,,

Plaintiffs allege that as applied the policy violates their 1st Amendment free speech rights:

... [T]he Department’s Mandate requires applicants to agree to speak certain words, like inaccurate pronouns, and to engage in certain expressive activities, like pride parades, that express the Department’s preferred views on human sexuality, as a condition for accessing child-welfare services. 

... [T]he Department’s Mandate forbids applicants from expressing certain views, like the Plaintiffs’ religious views on human sexuality, and engaging in certain expressive activities, like attending church, as a condition for accessing child-welfare services....

They also allege that the policy violates their 1st Amendment religious free exercise rights:

... The Wuotis and the Gantts have certain sincerely held religious beliefs about the human body and human sexuality, and they are also religiously motivated to provide foster care and adoption. 

... The Department’s SOGIE Mandate conditions Plaintiffs’ ability to obtain a foster-care license on their willingness to speak and act contrary to these religious beliefs.

The complaint also alleges due process and equal protection claims. ADF issued a press release announcing the filing of the lawsuit. 

Lifeguard Sues L.A. County Over Required Flag Raising for Pride Month

A suit was filed last week in a California federal district court by plaintiff who is employed as a lifeguard by Los Angeles County objecting to the requirement that he raise the Progress Pride Flag at his lifeguard station during June which has been designated as LGBTQ+ Pride month. The complaint (full text) in Little v. Los Angeles County Fire Department, (CD CA, filed 5/24/2024), alleges in part:

Captain Little is ... an evangelical Christian with beliefs on marriage, family, sexual behavior and identity that align with the traditional and orthodox biblical-social teachings....

... While Captain Little understands that the government can speak its own messages, and thus may promote Pride Month, he believes that he cannot personally do so by raising the Progress Pride Flag. Doing so would be to personally participate in, espouse, and promote messages contrary to his sincerely held religious beliefs, similar to how many courts have recognized that Jehovah’s Witnesses may not salute or pledge allegiance to the flag of any nation or state....

The complaint alleges that requiring him to raise the Pride Flag, refusing to provide him with a religious accommodation and taking retaliatory action against him violate Title VII of the 1964 Civil Rights Act, the California Fair Employment and Housing Law, the Free Exercise Clause of the U.S. and California Constitutions and the Free Speech clause of the U.S. Constitution.

Thomas More Society issued a press release announcing the filing of the lawsuit. Los Angeles Times has additional details.

UPDATE: According to a June 5. 2024 press release from the Thomas More Society, Los Angeles County has agreed to give plaintiff a partial accommodation by not requiring him to raise the Progress Pride Flag as part of his job for the remainder of June.

New Hampshire Divisive Concepts Law Is Void For Vagueness

 In Local 8027, AFT-N.H., AFL-CIO v. Edelblut, (D NH, May 28, 2024), a New Hampshire federal district court held that statutes enacted in 2021 that ban the teaching in public schools, or by employers, or in government programs of specified divisive concepts are void for vagueness. The banned concepts found in NH Revised Statutes §193.40 , §354A-31 and §354A-32, are:

(a) That one's age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion or national origin is inherently superior to people of another age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin;

(b) That an individual, by virtue of his or her age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;

(c) That an individual should be discriminated against or receive adverse treatment solely or partly because of his or her age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin; or

(d) That people of one age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin cannot and should not attempt to treat others without regard to age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.

The court concluded:

The Amendments are viewpoint-based restrictions on speech that do not provide either fair warning to educators of what they prohibit or sufficient standards for law enforcement to prevent arbitrary and discriminatory enforcement. Thus, the Amendments violate the Fourteenth Amendment to the U.S. Constitution.

Concord Monitor reports on the decision.

Churches' Challenges To Day Care Licensing Dismissed

In Foothills Christian Ministries v. Johnson, (SD CA, May 20, 2024), a California federal district court dismissed challenges by three churches to the California Child Day Care Facilities Act. The churches wish to open day cares but object to the requirement that they obtain a license to do so. The opinion relates to plaintiffs' First Amended Complaint after a prior dismissal. (See prior posting.) The court said in part:

... [I]ndignation is not injury and Plaintiffs have provided no further grounds for standing to challenge the licensure requirement itself beyond that they do not want a preschool that operates at the pleasure of DSS through the State’s licensing scheme...

The court also dismissed claims relating to removal of a preschool director and actions against it for refusing to comply with a past masking mandate over the objection of parents to the mandate. Plaintiffs' Establishment Clause, free speech and due process claims were dismissed without prejudice.

Ban of Bus Ads on Controversial Issues Violates Constitution

In WallBuilder Presentations v. Clarke, (D DC, May 21, 2024), a D.C. federal district court granted a preliminary injunction barring enforcement of a Guideline of the Washington Metropolitan Transit Authority which bars bus ads that are "intended to influence members of the public regarding an issue on which there are varying opinions...." Plaintiffs submitted two ads that promoted the idea that the nation's founders were Christians. The court said in part:

... [N]othing in Guideline 9’s text answers basic questions about its reach, and the “indeterminate scope” of Guideline 9 is not “clarif[ied]” or “saved” by any official guidance..... Enforcement of Guideline 9 is thus left to individual reviewers to determine, on a....case-by-case basis, what constitutes an “[a]dvertisement intended to influence” and what constitutes “an issue on which there are varying opinions.”  Such determinations “require[] a government decision-maker to maintain a mental index” of all the issues on which varying opinions exist—which, in turn, requires the decisionmaker to know not only the issues on which opinions differ, but also the precise degree to which opinions differ—an enterprise that the D.C. Circuit has said is “not reasonable.”....   

This Court thus joins the many courts that have rejected similar phrases as constitutionally suspect.... Without objective, workable standards in Guideline 9’s text or accompanying official guidance, reviewers’ “own politics may shape [their] views on what counts” as “an issue on which there are varying opinions,” and the risk of “unfair or inconsistent enforcement,” and even “abuse” is “self-evident.”  ....

However, relying on Circuit Court precedent, the court refused to enjoin enforcement of Guideline 12 that  prohibits advertisements that promote or oppose any religion, religious practice or belief.

ACLU issued a press release announcing the decision.

Alabama May Not Prosecute Those Who Arrange Out-of-State Abortions for Women

In Yellowhammer Fund v. Marshall, (MD AL, May 6, 2024), an Alabama federal district court held that the state Attorney General would violate women's right to travel and the free expression rights of reproductive health providers and their staffs if he carried out his threat to prosecute anyone who assists women in arranging out-of-state abortions that would be illegal if performed in Alabama. Refusing to dismiss these claims by plaintiffs, the court said in part:

... [T]he Constitution protects the right to cross state lines and engage in lawful conduct in other States, including receiving an abortion.  The Attorney General’s characterization of the right to travel as merely a right to move physically between the States contravenes history, precedent, and common sense.  Travel is valuable precisely because it allows us to pursue opportunities available elsewhere.  “If our bodies can move among states, but our freedom of action is tied to our place of origin, then the ‘right to travel’ becomes a hollow shell.”...

Moving to plaintiffs' free expression claim, the court rejected the state's reliance on the exception found in the Supreme Court's 1949 Giboney decision for speech integral to unlawful conduct. The court went on to say in part:

Having established that the Attorney General’s attempt to invoke Giboney is unavailing, the court turns to whether the plaintiffs have stated a viable First Amendment claim, taking the factual allegations in their complaints as true.  The plaintiffs submit that the State plans to initiate a prosecution under Alabama’s statutes punishing conspiracy, complicity, solicitation, and other crimes based on the content of the speech they and their staff wish to engage in about out-of-state abortions.  “[C]ontent-based speech regulations face ‘strict scrutiny,’ the requirement that the government use the least restrictive means of advancing a compelling government interest.”...   

The Attorney General does not argue that his threatened prosecutions can satisfy strict scrutiny.

The Hill reports on the decision.

Satanic Temple Can Move Ahead with Establishment Clause Challenge to Its Treatment by City Council

In The Satanic Temple v. The City of Chicago, (ND IL, March 31, 2024), an Illinois federal district court held that The Satanic Temple ("TST") had alleged enough to move ahead on its claim that the city had violated the Establishment Clause by constantly delaying for over three years a request by a TST clergyman to deliver an invocation at a Chicago City Council meeting.  The court said in part:

The Establishment Clause requires that the City treat Vavrick the same as it would any other clergy member from any other religion. Assuming, therefore, that the City has not scheduled Vavrick to give an invocation because of his religious beliefs, such practice violates the Establishment Clause.

The court however dismissed plaintiffs' free speech claim finding that plaintiffs had not plausibly alleged that City Council invocations are anything other than government speech. It also refused to grant a preliminary injunction.

District Court Enters Final Order in Wedding Website Designer Case

As previously reported, last year the U.S. Supreme Court in 303 Creative LLC v. Elenis held that the 1st Amendment's free speech protection bars Colorado from using its public accommodation anti-discrimination law to require a wedding website designer to design websites for same-sex weddings in violation of her religious beliefs. Now in the case on remand, 303 Creative LLC v. Elenis, (D CO, March 26, 2024), the Colorado federal district court entered a final Order in the case which provides in part:

ORDERED that the First Amendment’s Free Speech Clause prohibits Colorado from enforcing CADA’s Communication Clause to prevent plaintiffs from posting the following statement on her website or from making materially similar statements on her website and directly to prospective clients:  

I firmly believe that God is calling me to this work. Why? I am personally convicted that He wants me – during these uncertain times for those who believe in biblical marriage – to shine His light and not stay silent. He is calling me to stand up for my faith, to explain His true story about marriage, and to use the talents and business He gave me to publicly proclaim and celebrate His design for marriage as a life-long union between one man and one woman.  

These same religious convictions that motivate me also prevent me from creating websites promoting and celebrating ideas or messages that violate my beliefs. So I will not be able to create websites for same-sex marriages or any other marriage that is not between one man and one woman. Doing that would compromise my Christian witness and tell a story about marriage that contradicts God’s true story of marriage – the very story He is calling me to promote.

It is further ORDERED that defendants, their officers, agents, servants, employees, attorneys, and those acting in active concert or participation with them who receive actual notice of this order are permanently enjoined from enforcing:  

a. CADA’s Accommodations Clause to compel plaintiffs to create custom websites celebrating or depicting same-sex weddings or otherwise to create or depict original, expressive, graphic or website designs inconsistent with her beliefs regarding same-sex marriage; and  

b. CADA’s Communication Clause to prevent plaintiffs from posting the above statement on her website and from making materially similar statements on her website and directly to prospective clients.

Satanic Temple Sues School Board Over Discriminatory Rental Fees for Satan Club

The Satanic Temple filed suit this week in a Tennessee federal district court complaining that the Memphis-Shelby County School Board is placing hurdles in the way of its renting space for use by an After-School Satan Club. The complaint (full text) in The Satanic Temple, Inc. v. Shelby County Board of Education, (WD TN, filed 3/19/2024), alleges in part:

160. ... MSCS has demonstrated a widespread custom and practice of unnecessarily delaying approval or denial of the Satanic Temple’s rental applications....

169. ... MSCS is unconstitutionally discriminating against the Satanic Temple on the basis of its disfavored viewpoint and the content of its speech by charging the Temple a discriminatory hourly rental rate for its monthly ASSC meetings and ... an arbitrary and exorbitant security fee while not charging the same rates or security fees to the Good News Club....

170. ... MSCS’s discriminatory actions are ... arising from disagreement with, and hostility toward, the viewpoint and/or content of the Satanic Temple’s speech, as well as hostility towards the Satanic Temple’s religion by school board members, MSCS administrators, MSCS officials, community members and others....

196. The Satanic Temple’s before- and-after school clubs are a vital part of its religiously motivated mission to provide a safe, inclusive, and welcoming club for students whose parents are members of the Satanic Temple, as well as other students who may not feel welcomed or comfortable at other available before- or after-school religious clubs.

197. MSCS’s widespread custom and practice of discriminating against the Satanic Temple and attempting to constructively block and deter the ASSC from meeting ... substantially burdens the Satanic Temple’s exercise of its sincerely held non-theistic religious belief.

Freedom From Religion foundation issued a press release announcing the filing of the lawsuit.

Certiorari Denied in Case of Anorexic Transgender Teen Placed Under State's Care

The U.S. Supreme Court today denied review in M.C. v. Indiana Department of Child Services, (Docket No. 23-450, certiorari denied, 3/18/2024) (Order List). In the case, an Indiana state appellate court upheld the removal to state custody of a 16-year-old transgender child who was suffering from anorexia. The teen's parents, because of their Christian religious beliefs, refused to accept their child's transgender identity. The appellate court also upheld an order barring the parents from discussing the child's transgender identity during visitation.  (See prior posting.)  USA Today reports on the Supreme Court's action.

Settlement Narrows Interpretation of Florida's "Don't Say Gay" Law

On Monday, a Settlement Agreement (full text) was filed with the U.S. Court of Appeals for the 11th Circuit in Equality Florida v. Florida State Board of Education. In the case, plaintiffs challenged the constitutionality of Florida's Parental Rights in Education Act (sometimes known as the "Don't Say Gay" law). The Settlement Agreement defines narrowly the conduct that is prohibited by the law. According to the Agreement, the law only bans instruction on sexual orientation or gender identity that takes place in the classroom in grades 1-3. It does not ban references by teachers or students that do not amount to "instruction." Library books and extracurricular activities are not impacted by the ban.

In a press release, Florida Governor Ron Desantis' referred to the settlement as 

a major win against the activists who sought to stop Florida’s efforts to keep radical gender and sexual ideology out of the classrooms of public-school children in kindergarten through third grade (5- to 9-year-olds).

Plaintiffs in the case however describe it as a win for them, saying in part:

The agreement effectively nullifies the most dangerous and discriminatory impacts of Florida’s controversial “Don’t Say Gay Law,” and makes clear that the law must be applied neutrally and is no license to discriminate against or erase LGBTQ+ families.

The settlement restores the ability of students, teachers, and others in Florida schools to speak and write freely about sexual orientation and gender identity in class participation and schoolwork. It also restores safeguards against bullying on the basis of sexual orientation and gender identity, and reinstates Gay-Straight Alliances (GSAs). Critically, the settlement also requires the State Board of Education to send today’s agreement to every school district, and to make clear that the settlement reflects the considered position of the State of Florida on the scope and meaning of this law.

Student Sues School Board Alleging Gender Affirming Policies Violate Her Rights

Suit was filed earlier this week in a Virgina state trial court by a high school student challenging Fairfax County School Board regulations (full text) that support transgender students.  The complaint (full text) in Doe v. Fairfax County School Board, (VA Cir. Ct., filed 3/4/2024), alleges in part:

... FCPS Regulation 2603.2 and its application unconstitutionally violates the Petitioner’s sincerely held philosophical and religious beliefs by compelling her to refer to “[s]tudents who identify as gender-expansive or transgender [] by their chosen name and pronoun ....  

... [They] further unconstitutionally violate the Petitioner’s philosophical and religious beliefs by compelling her to share a restroom with a biological male. 

... [They] unconstitutionally discriminate against the Petitioner on the basis of her sex by requiring her to use a private restroom to remain consistent with her beliefs while allowing a biological male to use the female restroom... [and by permitting] a biological male to feel safe and comfortable by having full access to any restroom of his choice while not allowing the Petitioner to feel safe and comfortable by using the restroom of her biological sex....

... FCPS has knowingly and blatantly violated the Petitioner’s rights by forcing her to accept the ideological viewpoint of the government and the claimed rights and privileges of other students. 

America First Legal issued a press release announcing its filing or the lawsuit. FFXNow reports on the lawsuit.

Christian Organization Challenges Grant Rule Barring Religious Favoritism in Hiring

Suit was filed this week in an Oregon federal district court challenging an anti-discrimination rule of the Oregon Department of Education that disqualified a Christian youth-mentoring ministry from receiving $410,000 in grants for which it had initially been selected. The Christian group requires all of its board members, its 30 employees and 100+ volunteers to adhere to the organization's Statement of Faith. The Grant Program's rule bars grantees from favoring co-religionists as employees or volunteers. The complaint (full text) in Yourh 71Five Ministries v. Williams, (D OR, filed 3/4/2024), contends that the rule violates its Free Exercise and Free Expression rights, saying in part:

Because it emphasizes one-to-one mentoring and creating authentic, trusting relationships, 71Five Ministries depends on its staff and volunteers to fulfill the ministry’s distinctly Christian mission and purpose....

Defendants cannot disqualify otherwise eligible religious organizations from participation in otherwise available government benefit programs, including the Youth Community Investment Grant Program, “solely because of their religious character,”

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

LGBTQ+ Support Group Fights Texas AG's Demand for Information

Suit was filed this week in a Texas state trial court by PFLAG, a national support group for LGBTQ+ individuals and their families, seeking to set aside civil investigative demands from the Texas Attorney General's Office. PFLAG contends that the demands from the AG's Office indicate that the Attorney General is seeking to identify Texas families that are seeking gender-affirming care for their transgender adolescents. The investigative demands were issued under the Texas Deceptive Trade Practices Act.  The petition (full text) in PFLAG, Inc. v. Office of the Attorney General of the State of Texas, (TX Dist. Ct., filed 2/28/2024), alleges in part:

The goal of the OAG in serving these Demands is neither to enforce Texas law, nor to protect Texas consumers under the DTPA. These Demands are a clear and unmistakable overreach by the OAG in retaliation for PFLAG successfully standing up for its members, who include Texas transgender youth and their families, against the OAG’s, the Attorney General’s, and the State of Texas’s relentless campaign to persecute Texas trans youth and their loving parents. While that retaliation is itself a reason to set aside the Demands, PFLAG is entitled to a temporary restraining order and temporary and permanent injunctive relief because the Demands violate PFLAG and its members’ rights to freedom of petition, speech and assembly and to be free from unjustified searches and seizures, are contrary to the OAG’s authority under the DTPA, and impermissibly seek to evade the protections afforded to PFLAG as a civil litigant. 

In 2022, PFLAG successfully obtained temporary injunctive relief shielding its member families from the Texas Department of Family Protective Services’ (“DFPS”) operationalization of Governor Greg Abbott’s directive to investigate families of transgender youth who receive gender-affirming medical care for the treatment of gender dysphoria—a directive based on the Attorney General’s non-binding opinion claiming that necessary, evidence-based gender affirming medical treatment for transgender youth is per se “child abuse” under Texas law....  And in 2023, PFLAG successfully obtained a temporary injunction at the district court enjoining enforcement of Senate Bill 14 ... which seeks to prohibit the provision and state funding of gender-affirming medical care for the treatment of gender dysphoria of transgender adolescents.....

Through the OAG’s own actions, discovery has been stayed in both [cases].... But through these Demands, the OAG seeks to circumvent the normal discovery process along with its attendant protections, and in so doing, seeks to chill the ability of PFLAG and its members to exercise their free speech and associational rights and avail themselves of the courts when their constitutional rights are threatened.

ACLU issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.

Cert. Filed In Religious Broadcasters' Appeal of Mandatory Royalty Rates

 A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in National Religious Broadcasters Noncommercial Music License Committee v. Copyright Royalty Board, (Sup. Ct., cert. filed 2/23/2024).  In the case, the D.C. Circuit Court of Appeals in a July 28, 2023, opinion (full text) upheld the royalty rates set by the Royalty Board for calendar years 2021 through 2025 that must be paid by various classes of webcasters that stream copyrighted songs over the Internet. In its certiorari petition, the Religious Broadcasters set out the following as one of the Questions Presented for review:

Recently, the Board adopted rates requiring noncommercial religious webcasters to pay over 18 times the secular NPR-webcaster rate to communicate religious messages to listeners above a modest 218-average listener threshold. The D.C. Circuit upheld that disparate burden based on the Board treating some secular webcasters as poorly as religious webcasters. The result is suppression of online religious speech....

Its decision presents ... important legal questions: 

1. Whether approving noncommercial rates that favor NPR’s secular speech over religious speech violates the Religious Freedom Restoration Act (RFRA) or the First Amendment....

ADF issued a press release announcing the filing of the cert. petition.

Questions of Fact Remain in Challenge to Application Process for Prison Chaplaincy Supervisor

 In Bridges v. Prince Georges County, Maryland, (D MD, Feb. 1, 2024), a Maryland federal district court refused to grant summary judgment for either plaintiff or the defendants in a suit by a Muslim chaplain alleging that his 1st Amendment rights were violated by the application process for a paid supervisory position at the county detention center.  At issue was a "Statement of Applicant's Christian Faith" that was part of the application form created by Prison Ministry of America (PMA) which, under contract with the county, was to provide a non-denominational chaplain supervisor for the jail.  After finding that plaintiff had standing and that PMA was a state actor during the hiring process, the court said in part:

Because a reasonable jury could find the Statement of Christian Faith to be “a religious test” ..., summary judgment cannot be granted in favor of Defendants on this count.  However, Defendants’ assertion that the Statement was optional creates a sufficient dispute of material fact as to render summary judgment inappropriate in Plaintiff’s favor, as well....

Regardless of whether the Statement of Christian Faith was mandatory or not, the inclusion of such a statement, especially given that it appeared on its face to be required, clearly employed a non-neutral policy as it specifically allowed for participation by Christians and no others.  This non-neutral practice, then, could be viewed by a reasonable jury as placing a burden on Plaintiff’s religious expression by denying him the ability to apply for a job that he otherwise would have been able to seek, due to his religion....  As such, a reasonable jury could find that this burdened Plaintiff’s freedom of expression and that the policy was not narrowly tailored to meet a compelling government interest, and thus summary judgment cannot be granted in favor of Defendants.  However, the question of whether the inclusion of the Statement of Christian Faith in the application burdened Plaintiff’s religious exercise, given Defendants’ assertion that the Statement of Christian Faith was not actually required, creates a genuine dispute of material fact, and, therefore, summary judgment cannot be granted in favor of Plaintiff, either.