Suit Uniquely Brings Together Issues of Abortion and Vaccines

Suit was filed this week in a California federal district court challenging California's recently enacted SB 742 which creates a 30-foot floating buffer zone to prevent harassment or interference with any person who is entering or exiting a vaccination site. The buffer zone applies to anyone within 100 feet from the vaccination site entrance. The complaint (full text) in Right To Life of Central California v. Bonta, (ED CA, filed 10/13/2021), raises the challenge in a unique factual context. Right to Life is an organization that attempts to dissuade women from having abortions and which provides support to pregnant women and those who have had abortions. Its Outreach Center is located next door to a Planned Parenthood clinic and its staff regularly approaches women who are entering Planned Parenthood. The new law prevents this-- even when outreach staff is on its own property-- because the contiguous Planned Parenthood Center offers HPV vaccine. The complaint alleges that the new law violates plaintiff's 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

Suit Challenges Connecticut Regulation Of Limited Services Pregnancy Centers

Suit was filed this week in a Connecticut federal district court challenging a Connecticut Public Act 21-17 that prohibits deceptive advertising practices by limited services pregnancy centers which are facilities that do not provide or refer for abortions or emergency contraception. The complaint (full text) in Pregnancy Support Center, Inc. v. Tong, (D CT, filed 10/12/2021), alleges that the law violates plaintiff's free speech, expressive association, free exercise, equal protection and due process rights. It contends in part:

The Act ... is informed by hostility toward pregnancy services centers’ religious beliefs and pro-life viewpoint, and it targets pregnancy service centers’ disfavored religious beliefs for punishment.

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

Baltimore Wrongly Denied Permission For Rally To Protest USCCB Conference

In St. Michael's Media, Inc v. Mayor and City Council of Baltimore, (D MD, Oct. 12, 2021), a Maryland federal district court in an 86-page opinion held that the city of Baltimore violated the free speech and assembly rights of St. Michael's (also known as "Church Militant") when it instructed the company managing the city-owned Pavilion to cease contract discussions with Church Militant.  Church Militant was planning a protest prayer rally across from the Fall General Assembly of the U.S. Conference of Catholic Bishops. According to the court, Church Militant:

“often criticizes the current leadership” of the Catholic Church for what it perceives as “corruption in the Church,” including the Church’s protection of priests and others implicated in the sexual abuse of minors.... In addition, St. Michael’s “is a vocal critic of what it perceives as politicization of the Catholic Church by the USCCB.” ... In particular, it “disagrees with, and criticizes, a number of the USCCB’s positions on religious doctrine and morality, as well as the Catholic Church’s covering up of the sexual abuse committed by priests.”

The city contended:

Church Militant is attempting to hold an event on November 16, 2021 with confirmed speakers including Steve Bannon and others whose speaking engagements and statements have a track record of inviting protestors and counter protestors and supporting the January 6 attack on the Capitol in Washington, D.C. According to available media reports, their events and statements have a demonstrated history of inciting property destruction, physical assaults, and other violence....

The court held, however:

Even under the more lenient standard applied to nonpublic and limited fora, viewpoint discrimination is constitutionally impermissible.... I conclude that plaintiff is likely to succeed on the merits of its claim that the City was not viewpoint-neutral in barring the rally. Therefore, I need not consider whether the City’s actions would have been reasonable in the absence of viewpoint discrimination....

Without question, the City reacted to a perceived safety concern arising from past use of inflammatory remarks by some of the rally speakers. In thwarting the rally, the City essentially invoked or relied on the heckler’s veto. And, in doing so, it exercised complete, unfettered discretion; it acted on an ad hoc basis, without any standards. Further, it has presented somewhat shifting justifications for its actions, with little evidence to show that the decision was premised on these justifications....

The City cannot conjure up hypothetical hecklers and then grant them veto power.... Moreover, invocation of the events of January 6, 2021, as horrifying as they were, cannot, without more, serve as a license for the City to dispense with its obligations under the First Amendment.

The court granted a preliminary injunction and the city has appealed to the Fourth Circuit.

UPDATE: In an Order dated Nov. 3 (full text), the U.S. 4th Circuit Court of Appeals, without opinion, affirmed the district court.

Police Officer Who Prayed Outside Abortion Clinic Sues Over Suspension From Duty

An officer in the Louisville, Kentucky police department this week filed suit in a Kentucky federal district court seeking damages for the Department's four-month suspension of him. The suspension was in effect during an extended investigation of the officer's praying outside an abortion clinic while in uniform, but before he went on duty for the day. He was ultimately cleared of any violation of rules.  The complaint (full text) in Schrenger v. Shields, (WD KY, filed 10/4/2021) alleges violations of the 1st and 14th amendments as well as of Title VII, and state civil rights laws. It also alleges a claim for intentional infliction of emotional distress. WDRB News, reporting on the lawsuit, says:

EMW staff said the officer intimidated patients and medical staff while wearing his uniform and gun.

Surveillance video from the clinic showed Schrenger in a marked police cruiser. He marched outside of the clinic for approximately 45 minutes, at one point holding a sign that read "pray to end abortion."

Vegetarian Leafleter Loses Suit Against Police and City

In a Sept. 24, 2021 Order, a Louisiana federal district court accepted the recommendation set out in the magistrate judge's opinion in Hershey v. City of Bossier City, (WD LA, Aug. 23, 2021), and dismissed a suit against the city and two police officers. At issue was police conduct in ordering plaintiff to stop distributing leaflets on a public sidewalk outside an arena at which a Christian rock concert was being held. Plaintiff was distributing literature from the Christian Vegetarian Association. The court held that plaintiff had adequately alleged that the police were given unbridled discretion and engaged in viewpoint discrimination. However the court dismissed plaintiff's claims, summarizing its reasons in part:

[T]he city police officers are entitled to dismissal based on qualified immunity because Plaintiff has not made an adequate showing of clearly established law in the context of this case. The City of Bossier City is entitled to dismissal because the amended complaint does not allege sufficient facts to plead an actionable Monell claim of municipal liability.

Supreme Court Grants Certiorari In Case On Display of "Christian Flag" At City Hall

The U.S. Supreme Court today granted review in Shurtleff v. City of Boston, (Docket No. 20-1800, certiorari granted 9/30/2021) (Docket List). In the case, the U.S. 1st Circuit Court of Appeals upheld the city of Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) The SCOTUSblog case page with links to all the briefs and pleadings is here.

Satanic Temple Loses Fight Over City's Revocation Of Display Permit

In The Satanic Temple v. City of Belle Plaine, Minnesota, (D MN, Sept. 15, 2021), a Minnesota federal district court dismissed the promissory estoppel claim by The Satanic Temple (TST) growing out of Belle Plaine's rescission of a resolution allowing private groups to place displays in a city park. The city had originally created a limited public forum for private displays honoring veterans, and TST had received a permit to do so. The court said in part:

Here, as addressed, TST received the benefit of Belle Plaine’s alleged promise: TST had a limited-time opportunity, for nearly four months, to display its monument in Veterans Memorial Park. That Belle Plaine terminated TST’s permit early was both authorized by the Enacting Resolution and understood by TST as a possibility when TST applied for a permit. Any contrary expectation held by TST when relying on Belle Plaine’s alleged promise would have been unreasonable. There also is no allegation or evidence that Belle Plaine was unjustly enriched. The only money Belle Plaine received from TST was a $100 permit fee, which Belle Plaine reimbursed to TST. In addition, as addressed, the evidence reflects that TST was not financially harmed and there is no evidence of reputational harm.

The court upheld a magistrate's refusal to allow TST to belatedly amend its complaint to allege free speech, free exercise, equal protection claims and due process claims. Similar claims were previously dismissed. The court also imposed sanctions, in the form of the city's attorney's fees, against TST for maintaining a frivolous lawsuit.

6th Circuit Dismisses Suit Against Anti-Israel Picketers of Synagogue

In Gerber v. Herskovitz, (6th Cir., Sept. 15, 2021), the U.S. 6th Circuit Court of Appeals dismissed a suit by synagogue members against anti-Israel pickets who have picketed services at the Beth Israel Synagogue in Ann Arbor, Michigan every week since 2003.  The district court had dismissed the suit on standing grounds. (See prior posting.) On appeal, the majority said in part:

The district court granted the defendants’ motions to dismiss for lack of standing. We disagree on that point, as the plaintiffs have alleged a concrete and particularized harm to a legally protected interest. But the reality that they have standing to bring these claims does not entitle them to relief. The key obstacle is the robust protections that the First Amendment affords to nonviolent protests on matters of public concern. We affirm the district court’s dismissal on that basis.

Judge Clay filed a concurring opinion stating that he would have affirmed the district court's dismissal on standing grounds, saying in part:

Plaintiffs’ allegations of extreme emotional distress fail to establish standing in this case because there is no legally protected interest in not being offended by the speech of others.

Courthouse News Service reports on the decision.

Right-Wing Catholic Group Sues Over Cancellation Of Its Protest Rally

Suit was filed yesterday in a Maryland federal district court by the right-wing Catholic group Church Militant against the city of Baltimore for requiring the cancellation of Church Militant's prayer rally scheduled to be held across from the U.S. Conference of Catholic Bishops Fall General Assembly. The rally was titled "Bishops: Enough Is Enough." The complaint (full text) in St. Michael's Media, Inc. v. City of Baltimore, (D MD, filed 9/13/2021), alleges that the cancellation violates the group's free speech, free exercise, free association and Establishment Clause rights, saying in part:

The purpose of the rally is to engage in protected speech criticizing elements of the power structure of the Catholic Church in a situation where the speech would reach the Church's leadership.

Baltimore Brew reports on the lawsuit.

Suit By Anti-Abortion Protesters Seeking To Chalk Slogan On DC Streets Is Dismissed

In Frederick Douglass Foundation, Inc. v. District of Columbia, (D DC, Sept. 1, 2021), the D.C. federal district court faced on a motion to dismiss the nearly identical questions that it decided in the case in March when it denied a preliminary injunction to anti-abortion protesters who wished to paint or chalk D.C. streets with the slogan "Black Pre-Born Lives Matter." Now the court dismissed plaintiffs' claims that enforcing ordinances prohibiting the defacing property against them but not against racial-justice protesters violated their free exercise and free speech rights. Discussing plaintiffs' RFRA claim, the court said in part:

Taking as true ... allegations that the individual Plaintiffs hold religious beliefs about abortion that motivate their organizing and other activities, Plaintiffs still do not allege any facts to support the claim that painting or chalking the street is needed to express those beliefs.

Moving to plaintiffs' 1st Amendment free exercise claim, the court said in part:

As with their RFRA claim, the individual Plaintiffs allege only that they “share sincerely held religious beliefs” about the preciousness of life and “engage in pro-life advocacy and witness as part of” those beliefs.... Taken as true, this statement does not establish that the inability to paint or chalk substantially burdened their religious exercise.

Washington Conversion Therapy Ban Upheld

In Tingley v. Ferguson, (WD WA, Aug. 30, 2021), a Washington federal district court dismissed First Amendment challenges by a family therapist to a Washington state statute that prohibits licensed counselors in treating minors from engaging in "conversion therapy" aimed at changing sexual orientation or gender identity. The court held that performing conversion therapy is "conduct", not speech. According to the court, the law still allows therapists to discuss the option of conversion therapy by someone else-- including someone within the exception for practitioners operating under the auspices of religious organizations. The court also rejected plaintiff's religious free exercise argument, saying in part:

[T]he object of the Conversion Law is not to infringe upon or restrict practices because of their religious motivation.... Plaintiff is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.

Virginia Supreme Court Sides With Teacher Who Spoke Against School's Transgender Policy

In Louden County School Board v. Cross, (VA Sup. Ct., Aug. 30, 2021), the Virginia Supreme Court upheld a preliminary injunction issued by a trial court in a suit by a teacher who had been suspended because of his remarks at a school board meeting. Tanner Cross, an elementary school physical education teacher, at a school board meeting spoke in opposition to a proposed policy on transgender students which, among other things, required school staff to use a student's chosen name and gender pronouns. Cross told the board, in part:

I’m a teacher but I serve God first. And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion. It’s lying to a child. It’s abuse to a child. And it’s sinning against our God.

The Supreme Court said in part:

The only disruption the Defendants can point to is that a tiny minority of parents requested that Cross not interact with their children. However, the Defendants identify no case in which such a nominal actual or expected disturbance justified restricting speech as constitutionally valued as Cross’ nor have they attempted to explain why immediate suspension and restricted access to further Board meetings was the proportional or rational response to addressing the concerns of so few parents.

ADF issued a press release announcing the decision.

2nd Circuit Upholds Denial Of Preliminary Injunction Against Abortion Protesters

In New York ex rel. James v. Griepp, (2d Cir., Aug. 26, 2021), the U.S. 2nd Circuit Court of Appeals affirmed a New York federal district court's refusal to grant a preliminary injunction against anti-abortion protesters who had been clashing with volunteer clinic escorts outside a Queens medical center. The decision came after the court earlier vacated its prior opinion in the case. (See prior posting.) The 2nd Circuit now said in part:

[T]he district court concluded that the Attorney General had not demonstrated irreparable harm. Some members of this Court might have reached different conclusions, both as to the existence of violations and as to the appropriateness of a preliminary injunction. But many of the issues are close ones, and we cannot say that the district court abused its considerable discretion in denying a preliminary injunction....

Liberty Counsel issued a press release announcing the decision.

Suit Challenges Arizona's New Abortion Law

Suit was filed in an Arizona federal district court yesterday challenging two provisions in an abortion law enacted earlier this year. At issue are (1) a provision (the Reason Ban) which bans abortion whenever the providing physician knows that the abortion is due to “a genetic abnormality” and (2) a provision (the Personhood Provision) which requires Arizona laws to be interpreted to give all fertilized eggs, embryos, and fetuses the same rights as other persons. The complaint (full text) in Isaacson v. Brnovich, (D AZ, filed 8/17/2021), alleges in part:

Any reading of [the Reason] ban violates the Due Process Clause of the Fourteenth Amendment and decades of binding precedent confirming that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”...

Because the Personhood Provision fails to provide adequate notice of prohibited conduct and invites arbitrary and discriminatory enforcement..., it is unconstitutionally vague.

The complaint also alleges that the accomplice liability provisions infringe on physicians' speech rights. Center for Reproductive rights issued a press release announcing the filing of the lawsuit.

11th Circuit: Exclusion of Anti-LGBT Group From Charitable Donation Program Is Upheld

In Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., (11th Cir., July 28, 2021), the U.S. 11th Circuit Court of Appeals affirmed an Alabama federal district court's dismissal of a defamation and religious discrimination suit brought by a Christian ministry and media company.  At issue is Amazon's customer-choice charitable donation program which excludes as possible beneficiaries organizations that are designated as hate groups by the Southern Poverty Law Center. Coral Ridge was listed as a hate group because of its religious beliefs opposing LGBTQ conduct. The court dismissed the defamation claim because plaintiff failed to adequately plead actual malice (i.e., knowledge of falsity or reckless disregard of the truth). The court dismissed Coral Ridge's claim of religious discrimination in violation of the public accommodation provisions of the 1964 Civil Rights Act, saying in part:

[T]he district court was correct in finding that Coral Ridge’s interpretation of Title II would violate the First Amendment by essentially forcing Amazon to donate to organizations it does not support.... 

Coral Ridge’s proposed interpretation of Title II would infringe on Amazon’s First Amendment right to engage in expressive conduct and would not further Title II’s purpose....

Courthouse News Service reports on the decision.

10th Circuit: Colorado Anti-Discrimination Law Can Apply To Wedding Website Designer

 In 303 Creative LLC v. Elenis, (10th Cir., July 26, 2021), the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for religious reasons refuses to create websites that celebrate same-sex marriages. The Act bars refusing services because of a customer's sexual orientation and publishing any communication that indicates such discriminatory practices. The majority conceded that the law compelled speech and acted as a content-based restriction. However the majority found that it nevertheless was constitutional because it was narrowly tailored to further a compelling state interest.  The majority said in part:

Here, Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace....

To be clear, we, like the Dissent, do not question Appellants’ “sincere religious beliefs” or “good faith.”... Yet, we fail to see how Appellants’ sincerity or good faith should excuse them from CADA. Appellants’ intent has no bearing on whether, as a consequence, same-sex couples have limited access to goods or services....

The Communication Clause does not violate the Appellants’ Free Speech rights. As the district court correctly held, Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination....

Chief Judge Tymkovich filed a lengthy dissenting opinion. saying in part:

While everyone supports robust and vigorously enforced anti-discrimination laws, those laws need not and should not force a citizen to make a Hobson’s choice over matters of conscience. Colorado is rightfully interested in protecting certain classes of persons from arbitrary and discriminatory treatment. But what Colorado cannot do is turn the tables on Ms. Smith and single out her speech and religious beliefs for discriminatory treatment under the aegis of anti-discrimination laws.

 ADF issued a press release announcing the decision.

Food Ordinance Does Not Violate Rights Of Christians Distributing Sandwiches

In Redlich v. City of St. Louis, (ED MO, July 22, 2021), a Missouri federal magistrate judge dismissed a suit by two officers of the New Life Evangelical Center who, as part of their religious obligation, conduct outreach to the homeless.  They seek an injunction to prevent enforcement of a city ordinance that bans the distribution of “potentially hazardous foods” to the public without a temporary food permit. Plaintiffs were cited for distributing bologna sandwiches without a permit. The court rejected free exercise, free speech, freedom of association, equal protection and other challenges by plaintiffs, saying in part:

Plaintiffs have not established that the Ordinance constitutes a substantial burden on their free exercise rights. Assuming that food sharing is a central tenet of Plaintiffs’ religious beliefs, the evidence does not show that enforcement of the Ordinance prohibits Plaintiffs’ meaningful ability to adhere to their faith or denies Plaintiffs reasonable opportunities to engage in fundamental religious activities....

Plaintiffs show that the Ordinance certainly limits their ability to express their message in distributing sandwiches, but admit there is nothing about bologna sandwiches specifically that inherently expresses their religion. The facts show that in the alternative to obtaining a charitable feeding permit, Plaintiffs can and have distributed other types of food, bottled water, clothes, literature, and offered community and prayer without providing food subject to the Ordinance...

The record supports that the City enacted the Ordinance to adopt the National Food Code for public health and safety reasons, not to curtail a religious message. Thus, the Ordinance and its Amendment are content neutral and generally applicable....

California Law Barring Misgendering Of Long Term Care Residents Violates 1st Amendment

In Taking Offense v. State of California, (CA App., July 16, 2021), a California state appellate court held that a provision in California's Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights violates free speech rights.  At issue is a provision that prohibits staff members of long-term care facilities from willfully and repeatedly referring to a resident by anything except the person's preferred name or pronoun. The court said in part:

[W]e conclude the pronoun provision ... is overinclusive in that it restricts more speech than is necessary to achieve the government’s compelling interest in eliminating discrimination, including harassment, on the basis of sex.... [T]he law criminalizes even occasional, isolated, off-hand instances of willful misgendering-- provided there has been at least one prior instance--without requiring that such occasional instances of misgendering amount to harassing or discriminatory conduct.

The court however rejected an equal protection challenge to a different provision of the law that requires room assignments in long term care facilities to be made on the basis of a resident's gender identity, unless a transgender resident requests otherwise.

Judge Hull filed a concurring opinion discussing the right of intimate association. Judge Robie also filed a concurring opinion.

Court Enjoins Statute Requiring Warning About Restroom Access

In Bongo Productions, LLC v. Lawrence, (MD TN, July 9, 2021), a Tennessee federal district court issued a preliminary injunction against enforcement of a recent Tennessee statute that requires businesses which allow individuals to use rest rooms consistent with their gender identity to post a sign by each rest room stating: "This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation of the restroom." The court concluded that the statute violates plaintiffs' First Amendment free speech rights by compelling speech. The court said in part:

[T]here is simply no basis whatsoever for concluding that the Act is narrowly tailored to serve any compelling governmental purpose....

The defendants are right that, as the Supreme Court has held, strict scrutiny typically does not apply to laws compelling commercial actors to disclose “purely factual and uncontroversial information about the terms under which [their] services will be available.”...

The Supreme Court has expressly recognized that “sexual orientation and gender identity” are, generally speaking, “controversial subjects.”...

[P]eople on one side of a disagreement do not get to unilaterally declare their position to be uncontroversial, because that is not how the concept of “controversy” works. Put another way, the defendants might be wise to accept that, once you are in a heated argument with multiple folks about whether your position is uncontroversial, there is a good chance that you may have already lost.

Gay City News reports on the decision.

5th Circuit: Ban On Proselytizing At Outdoor Market Violates Free Speech Rigths

In Denton v. City of El Paso, Texas, (5th Cir., July 6, 2021), the U.S. 5th Circuit Court of Appeals remanded the case to a Texas federal district court ordering it to grant a preliminary injunction barring El Paso from prohibiting religious proselytizing at the weekly outdoor El Paso Art and Farmers Market. The city's rules bar fundraising, political campaigning and religious proselytizing from the market. The court held that these exclusions are content-based, and concluded:

It is unclear whether the City has asserted a compelling government interest. We need not decide this issue because, even assuming that it did assert a compelling government interest, a prior restraint of speech based on a viewpoint is unlikely to be the least restrictive means of regulation available.