Showing posts with label Kentucky. Show all posts
Showing posts with label Kentucky. Show all posts

Thursday, December 07, 2023

Denial of Permission to Build Grotto Did Not Violate RLUIPA

 In Frederic v. City of Park Hills Board of Adjustment, (KY App., Dec. 1, 2023), a Kentucky state appeals court held that a denying a church permission to build a grotto on its property does not violate the Religious Land Use and Institutionalized Persons Act.   The court said in part:

The application of the ordinance to prohibit construction of the grotto may make practice of religion somewhat more difficult for the church’s congregation or the adherents of the Catholic faith broadly, but the Zoning Ordinance is not inherently inconsistent with their religious beliefs. Accordingly, we find the Park Hills Zoning Ordinance imposes no substantial burden on the religious exercise of any Appellee and, therefore, the ordinance does not constitute a violation of RLUIPA.

Tuesday, October 03, 2023

6th Circuit Upholds TN and KY Laws Barring Gender Transition Treatment For Minors

 In L.W. v. Skrmetti, (6th Cir., Sept. 28, 2023), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, reversed preliminary injunctions issued by district courts in challenges to statutes in Tennessee and Kentucky prohibiting chemical, hormonal or surgical treatment of minors for gender dysphoria. The majority rejected due process and equal protection challenges to the state laws, saying in part:

No one in these consolidated cases debates the existence of gender dysphoria or the distress caused by it. And no one doubts the value of providing psychological and related care to children facing it. The question is whether certain additional treatments—puberty blockers, hormone treatments, and surgeries—should be added to the mix of treatments available to those age 17 and under. As to that, we return to where we started. This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two. Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments. That is precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges.

Judge White dissented, saying in part:

The statutes we consider today discriminate based on sex and gender conformity and intrude on the well-established province of parents to make medical decisions for their minor children. Despite these violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the majority concludes that the statutes are likely constitutional and reverses district court orders enjoining the statutes. I respectfully dissent.

Friday, September 15, 2023

Kim Davis Assessed $100K Damages In One Case, $0 in Another

Last year, in a long-running case, a Kentucky federal district court held that Rowan County Clerk Kim Davis violated the constitutional rights of two same-sex couples when she refused, on religious grounds, to issue them marriage licenses. The court said that damages should be assessed by a jury.  (See prior posting.) That case, along with another making similar claims, were recently tired in parallel before two separate juries. In one of the cases-- Yates v. Davis -- the jury yesterday awarded zero damages.  In a second case-- Emold v. Davis-- a different jury awarded $100,000 damages. Liberty Counsel says the decision will be appealed. USA Today reports on the cases.

Wednesday, August 16, 2023

6th Circuit: Kentucky Governor Had Qualified Immunity For Covid School-Closing Order

 In Pleasant View Baptist Church v. Beshear, (6th Cir., Aug. 14, 2023), the U.S. 6th Circuit Court of Appeals held that Kentucky Governor Andy Beshear had qualified immunity in a suit challenging his Covid order temporarily barring in-person classes at public and private schools. The suit was brought by a group of churches, private religious schools and parents alleging that the 2020 Covid order violated their free exercise rights (as well as parental rights to send their children to religious schools and  their right to freedom of association). Plaintiffs' request for declaratory relief became moot when the orders were lifted. However, their claims for monetary damages did not. Affirming the district court's finding of qualified immunity, the appeals court said in part:

Neither this court’s nor the Supreme Court’s precedent clearly established that temporarily closing in-person learning at all elementary and secondary schools would violate the Free Exercise Clause when Governor Beshear issued EO 2020-969 on November 18, 2020. As the Governor points out, Plaintiffs have not provided this court with any cases denying a government official qualified immunity for their immediate public-health response to the COVID-19 pandemic.... Because the Governor issued EO 2020-969 in the midst of a vibrant debate on this constitutional issue, he is thus entitled to a qualified-immunity defense. Accordingly, because Plaintiffs cannot demonstrate that a clearly established right existed at the time Governor Beshear issued EO 2020-969....

Judge Murphy filed a concurring opinion.

Monday, July 31, 2023

6th Circuit Hears Oral Arguments In Wedding Photographer Case

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

Saturday, July 08, 2023

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

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

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

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

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

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

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

CBS News reports on the letter.

Thursday, June 29, 2023

Court Issues Preliminary Injunction Against Kentucky Ban on Puberty Blockers and Hormonal Treatment for Minors

 In Doe v. Thornbury, (WD KY, June 28, 2023), a Kentucky federal district court issued a preliminary injunction barring the state from enforcing the portions of SB150 that prohibit health care providers from prescribing puberty blockers or testosterone, estrogen, or progesterone to minors suffering from gender dysphoria. The court held that the ban violates the equal protection rights of minors as well as parents' due process rights to make medical decisions for their children. CNN reports on the decision.

Thursday, March 30, 2023

Kentucky Legislature Overrides Veto of Transgender Bill Restricting Schools and Doctors

As reported by AP, the Kentucky legislature yesterday voted to override Kentucky Governor Andy Beshear's veto of Senate Bill 150 (full text). The elaborate bill requires schools to notify parents of all school health and mental health services related to human sexuality, contraception or family planning and of parents' right to withhold consent for such services.

The bill prohibits policies that keep student information confidential from parents and policies that require use of pronouns that do not conform to a student's biological sex. However, information may be kept from parents if disclosure is likely to result in the child becoming abused or neglected.

Under the bill, no instruction on sexuality may be offered to children below grade 6, and no course at any grade level may discuss gender identity, gender expression or sexual orientation. Parental consent is required for students to take sex education courses. However, this does not bar discussing sexuality of historic persons or answering relevant student questions about human sexuality. 

The bill bars schools from allowing students to use restrooms or locker rooms reserved for students of the opposite biological sex. However other accommodations should be made for transgender students. 

Also, health care providers are prohibited from furnishing puberty blockers or providing other gender transition procedures to minors.

Governor Beshear's March 24 veto message said in part:

Senate Bill 150 allows too much government interference in healthcare issues and rips away the freedom of parents to make medical decision for their children. Senate Bill 150 further strips freedom from parents to make personal family decisions on the names their children are called and how people should refer to them....

I am also vetoing Senate Bill 150 because my faith teaches me that all children are children of God and Senate Bill 150 will endanger the children of Kentucky....

Lex18 reports on the bill.

Saturday, February 18, 2023

Kentucky Supreme Court Finds Procedural Problems with Abortion Providers' Attempt to Enjoin Abortion Bans

In Cameron v. EMW Women's Surgical Center, P.S.C., (KY Sup. Ct., Feb. 16, 2023), the Kentucky Supreme Court considered challenges by abortion providers to two Kentucky statutes banning abortions. The "trigger ban" prohibits all abortions, except when necessary to preserve the life of the mother or prevent permanent impairment of a life-sustaining organ. The "heartbeat ban" bars abortions after there is a detectable human heartbeat, with a similar exception for preserving the life of the mother or preventing irreversible impairment of a major bodily function. The trial court issued a preliminary injunction preventing enforcement of both laws. The state Court of Appeals granted emergency relief and dissolved the injunction, and then transferred the case to the state Supreme Court. In this opinion, the state Supreme Court affirmed the Court of Appeals dissolution of the injunction, holding that abortion providers lack third-party standing to challenge the laws on behalf of their patients. However, they held that abortion providers do have standing to challenge the "trigger ban" on their own behalf, and remanded the case to the trial court on that issue. Justice Lambert, joined by Justice Conley, said in part:

[T]he abortion providers’ arguments that the trigger ban improperly delegates legislative authority and that becomes effective on the authority of an entity other than the General Assembly remain live issues. If the abortion providers were to receive a favorable ruling on those issues, the statute would be invalidated if the offending enactment provision could not be severed. This in turn would provide the abortion providers with the relief they seek, satisfying the redressability prong of constitutional standing. 

However, although the abortion providers have constitutional standing to challenge the trigger ban on the foregoing two grounds, they made no arguments concerning their own rights in relation to the heartbeat ban. Their only assertion against the heartbeat ban was that it violated their patients’ constitutional rights to privacy and self-determination....

[T]he personal harm asserted by the abortion providers, the harm to their business, is not considered an irreparable injury for the purposes issuing a temporary injunction.

The circuit court also erred when balancing the equities involved....

To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion, as no appropriate party to raise that issue is before us. Nothing in this opinion shall be construed to prevent an appropriate party from filing suit at a later date....

This matter is accordingly remanded to the circuit court for the determination of the first-party constitutional claims of the abortion providers as to the trigger ban. Specifically, whether the trigger ban was an unlawful delegation of legislative authority in violation of Sections 27, 28, and 29 of the Kentucky Constitution and if the trigger ban became effective upon the authority of an entity other than the General Assembly in violation of Section 60 of the Kentucky Constitution.

Chief Justice VanMeter concurred only in the result.

Four other Justices each filed separate opinions, concurring in part and dissenting in part.

Justice Bisig, joined by Justice Keller, said in part:

Thus, while I concur with the majority’s conclusion that Plaintiffs have first-party standing to challenge the Trigger Ban and with their recognition of third-party standing for purposes of Kentucky law, I respectfully dissent from the remainder of their Opinion. I would reverse the Court of Appeals, affirm the trial court, and direct reinstatement of the temporary injunction....

Because the statutes infringe upon a pregnant patient’s fundamental rights to pursue safety and to self-determination and are likely not sufficiently narrowly tailored to a compelling government interest, I would hold that EMG presented a substantial question on the merits of the case below.

Justice Keller, joined by Justics Bisig, concurred in part, saying in part:

I concur with the Majority’s holding that the physicians have first-party standing to assert their claims in the case at bar. However, I dissent from the remainder of the Majority’s Opinion. Further, I join Justice Bisig’s separate opinion, as I also believe that the physicians have third-party standing to assert the claims of their patients and that the trial court did not abuse its discretion in granting the temporary injunction.

Nickell, J. concurred in part and dissented in part, saying in part:

I concur with the view that the trial court abused its discretion by enjoining the enforcement of the abortion bans. However, I respectfully dissent from any conclusion that Appellees have first-party standing or third-party standing to assert this pre-enforcement constitutional challenge. There should not be one set of procedural rules for abortion providers and another for everyone else.

Thompson, J. concurred in part, saying in part:

I concur in the majority opinion that first party standing was established for the abortion providers and dissent from its conclusion that they lacked third party standing. I believe we should err on the side of finding standing when at all possible, so that parties can gain needed review. 

Accordingly, I urge the trial court to fully exercise its authority on remand by freely allowing intervention by all interested parties so that first party standing may be established for all issues....

Liberty Counsel issued a press release announcing the decision. CNN reports on the decision.

Thursday, December 29, 2022

6th Circuit: Healthcare Buffer Zone Law Violates Pro-Lifer's Free Speech Rights

In Sisters for Life, Inc. v. Louisville-Jefferson County, KY Metro Government, (6th Cir., Dec. 21, 2022), the U.S. 6th Circuit Court of Appeals held that an ordinance imposing a 10-foot buffer zone around the entrance of any healthcare facility abridges the free speech rights of pro-life groups and individuals who wish to hand out leaflets and speak with women entering abortion clinics. The court said in part:

Even though caselaw permits a city to enact access laws focused on abortion facilities, ... the County sought to advance its interests by imposing a buffer zone on all medical facilities in Louisville. And why? The record does not reveal access problems beyond EMW.... Yet the ordinance covers every single hospital, clinic, and dentist’s office in the area.... Because the County may not “burden substantially more speech than is necessary” to further the County’s order and access interests,..., and because the County has not made any showing that all medical facilities need this kind of regulation, the ordinance lacks any tailoring, to say nothing of narrow tailoring.... 

The second problem is that the County has not shown that it “seriously undertook to address” its concerns “with less intrusive tools.”... [T]he County offers no tenable... explanation why the first prohibition in the law—that no one shall “knowingly obstruct, detain, hinder, impede, or block another person’s entry to or exit from a healthcare facility,”... will not work.

Sunday, October 09, 2022

Suit Challenges Kentucky Abortion Bans As Violating Jewish Religious Beliefs

Suit was filed last Thursday in a Kentucky state trial court by three Jewish women who contend that Kentucky's strict abortion bans violate their religious freedom rights. The complaint (full text) in Sobel v. Cameron, (KY Cir. Ct., filed 10/6/2022), alleges that Kentucky law might be read to make it a capital offense to discard excess embryos created in the process of in vitro fertilization. The complaint alleges in part:

35. Under Jewish law, a fetus does not become a human being or child until birth. Under no circumstances has Jewish law defined a human being or child as the moment that a human spermatozoon fuses with a human ovum.

36. The question of when life begins for a human being is a religious and philosophical question without universal beliefs across different religions....

39. Plaintiff’s religious beliefs demand that they have more children through IVF, yet the law forces Plaintiffs to spend exorbitant fees to keep their embryos frozen indefinitely or face potential felony charges. This dilemma forces Plaintiffs to abandon their sincere religious beliefs of having more children by limiting access to IVF and substantially burdens their right to freely exercise these sincerely held religious belief....

51. Kentucky's contemporary Abortion Law is focused on preservation of ova and blastocysts on the basis of a religious understanding of fetal personhood.....

The complaint alleges that Kentucky abortion laws are void for vagueness and unintelligibility; violate the Kentucky Religious Freedom Restoration Act; and violate the Kentucky Constitution by giving preference to sectarian Christianity and diminishing Plaintiffs' privileges, rights, and capacities on account of their Jewish faith and beliefs. Los Angeles Times reports on the lawsuit.

Sunday, October 02, 2022

6th Circuit Affirms That County Clerk Kim Davis Had No Qualified Immunity Defense

In Ermold v. Davis, (6th Cir., Sept. 29, 2022), the U.S. 6th Circuit Court of Appeals affirmed a Kentucky federal district court decision that Rowan County Clerk Kim Davis does not have qualified immunity in a suit against her for stopping the issuance of all marriage licenses to avoid issuing licenses to same-sex couples. The court said in part:

[P]laintiffs have not only “alleged” but also now “shown” that Davis violated their constitutional right to marry.... And, as we held three years ago, that right was “clearly established in Obergefell.”

The court held that insofar as Davis has raised a free exercise defense under the First Amendment, that issue should be resolved when the case goes to trial and not at the current motion-to-dismiss stage. [Thanks to Thomas Rutledge for the lead.]

Thursday, September 01, 2022

District Court: Public Accommodation Law Violates Wedding Photographer's Free Speech Rights

In Chelsey Nelson Photography, LLC v. Louisville/ Jefferson County, (WD KY, Aug. 30, 2022), a Kentucky federal district court held that Louisville's public accommodation ordinance violates the free speech rights of a Christian wedding photographer who has moral and religious objections to same-sex marriages. The court said in part:

Courts across the country have addressed whether bakers, florists, website designers, and other creative professionals must either provide their services for weddings that violate their beliefs or else abstain entirely from the wedding business. And those courts’ disagreement on whether this amounts to prohibited discrimination or protected dissent is what the U.S. Supreme Court has set out to resolve during its upcoming term....

This is a real conflict between nondiscrimination and speech that cannot be wished away: compelling access for all necessarily clashes with the liberty of some. The City contends that Nelson’s speech demeans same-sex couples, while Nelson says the City’s Ordinance demeans her speech....

The First Amendment’s protections for religious exercise ... are unlikely to help those in Nelson’s position: at least as currently construed, that aspect of the Constitution does not shield people whose sincerely held religious beliefs conflict with generally applicable laws....

But the government’s authority over public accommodations does not extend to “abridging the freedom of speech.”...

So although Louisville may require restaurants and hotels and stores to provide services regardless of the proprietors’ views or their customers’ legal status, the government may not force singers or writers or photographers to articulate messages they don’t support.

The court also concluded that the ordinance violates the Kentucky Religious Freedom Restoration Act. [Thanks to Thomas Rutledge for the lead.]

Tuesday, July 26, 2022

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.

Thursday, April 14, 2022

Kentucky Legislature Overrides Veto Of Ban On Transgender Girls On Middle and High School Girl's Teams

Last week, Kentucky Governor Andy Beshear vetoed (veto message) SB 83 (full text) which bars transgender girls in grades 6 though 12 from competing on girls' athletic teams or activities in Kentucky public schools. As reported by the Courier Journal, yesterday the Kentucky legislature overrode the governor's veto.

Wednesday, April 06, 2022

Kentucky Governor Signs Bill Protecting Houses Of Worship During Emergencies

Yesterday, Kentucky Governor Andy Beshear signed into law House Bill 43 (full text) that prohibits the governor, during a state of emergency, from seizing or condemning "houses of worship, except to the extent that such houses have become unsafe to a degree that would justify condemnation in the absence of a state of emergency." ADF issued a press release announcing the governor's action.

Saturday, March 19, 2022

Court Clerk Violated Rights Of Same-Sex Couples

In Ermold v. Davis, (ED KY, March 18, 2022), a high-profile case that has been pending since 2015, a Kentucky federal district court held that Rowan County Clerk Kim Davis violated the constitutional rights of two same-sex couples when she refused, on religious grounds, to issue them marriage licenses. Rejecting Davis' claim of qualified immunity, the court said: "Davis did not make a mistake. Rather, she knowingly violated the law."  Allowing plaintiffs to move ahead with their civil rights claim, the court said in part:

Ultimately, this Court’s determination is simple—Davis cannot use her own constitutional rights as a shield to violate the constitutional rights of others while performing her duties as an elected official.

The court said that a jury should decide whether plaintiffs are entitled to compensatory and punitive damages. AP reports on the decision. [Thanks to Scott Mange for the lead.] [UPDATED]

Friday, March 04, 2022

Supreme Court Allows New Kentucky AG To Intervene To Defend Abortion Restrictions

Yesterday in Cameron v. EMW Women's Surgical Center, (Sup. Ct., March 3, 2022), the U.S. Supreme Court by an 8-1 vote ruled that the newly-elected Kentucky Attorney General (a Republican) should have been allowed to intervene to defend a Kentucky statute that banned D&E abortions prior to fetal demise. The newly elected Democratic governor (through a cabinet official) had agreed not to pursue appeals of the 6th Circuit's decision holding the law unconstitutional. Justice Alito wrote the opinion for the Court. Justice Thomas filed a concurring opinion. Justice Kagan, joined by Justice Breyer, concurred in the judgment, writing an opinion that reached the same conclusion as the majority, but through a different rationale. Only Justice Sotomayor dissented. CNN reports on the decision.

Monday, February 14, 2022

Relocation Of Native American Graves Can Proceed

In Asher v. Clay County Board of Education, (ED KY, Feb. 11, 2022), a Kentucky federal district court refused to enjoin a school district from relocating graves from cemetery land which it had purchased. The school board followed procedures in Kentucky law to obtain permission for the relocation.  Plaintiffs claim the the cemetery contains graves of members of the White Top Band of Native Indians.  The court held that the Native American Graves Protection and Repatriation Act does not apply because the cemetery is not on federal or tribal lands. The court rejected plaintiffs' 1st Amendment free exercise claim, saying in part:

Plaintiffs argue that the Defendants’ actions would prevent religious fulfilment.... But like the respondents in Lyng [v. Nw. Indian Cemetery Protective Ass’n], Plaintiffs are not being coerced into violating their religious beliefs, nor are they being penalized because of their religious or traditional beliefs or practices. Instead, they seek to overturn the lawful process undertaken by the BOE to move the graves in the Hoskins Cemetery so that Plaintiffs can continue to practice their traditional and religious beliefs.... This is not “free exercise” of religion protected by the First Amendment. Rather, it amounts to Plaintiffs seeking to exact a benefit from the local government and to “divest the [BOE] of its right to use what is, after all, its land.”

Friday, October 08, 2021

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."