Challenge to Louisiana COVID Worship Restrictions Dismissed As Moot

In Spell v. Edwards, (MD LA, Jan. 12, 2022), a Louisiana federal district court, on remand from the 5th Circuit, again dismissed a challenge to a now expired COVID Order limiting the size of religious gatherings. The court explained:

On July 6, 2021, the U.S. Court of Appeals for the Fifth Circuit vacated this Court’s November 10 dismissal order, and remanded with instructions to reconsider Plaintiffs’ First Amendment Free Exercise Clause claim in light of new guidance from the U.S. Supreme Court, specifically, Roman Catholic Diocese of Brooklyn v. Cuomo, ... South Bay United Pentecostal Church v. Newsom, ... and Tandon v. Newsom....

Now, with the benefit of the Supreme Court’s guidance, the Court reaches the same result as before: Plaintiffs’ consolidated actions will, again, be dismissed. In short, the Supreme Court’s most recent jurisprudence cannot save Plaintiffs’ claims for injunctive relief because the challenged restrictions have expired on their own terms and there is no indication whatsoever that crowd-size limits on indoor assembly will be reinstated. Thus, an injunction is a moot point. Further, Plaintiffs’ demand for damages fails because there is not now, and never has been, a “clearly established” right to unrestricted religious assembly.... Thus, Defendants are shielded from liability by qualified immunity.

RNS reports on the decision.

New Orleans Archdiocese Settles False Claims Act Lawsuit

The Department of Justice announced this week that in a settlement of a False Claims Act lawsuit that was originally brought by a whistleblower, the Catholic Archdiocese of New Orleans has agreed to pay the federal government more than $1 million in damages. (Full text of Settlement Agreement).  The whistleblower will receive nearly $200,000. The lawsuit alleges that the Archdiocese knowingly submitted false claims to FEMA for repair or replacement of facilities damaged by Hurricane Katrina. This included damage to a nonexistent central air conditioning unit and misstatement of the sized of a facility. The settlement was approved last month by the U.S. Bankruptcy Court handling the Archdiocese's bankruptcy reorganization. National Catholic Register reports on the settlement.

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.

Ban On Cockfighting Does Not Violate Pastor's Free Exercise Rights

 In Plumbar v. Landry, (MD LA, Aug. 26, 2021), a Louisiana federal district court rejected a free exercise challenge to Louisiana's ban on cockfighting. Plaintiff who challenged the law was pastor of Holy Fight Ministries, a church that believes cockfighting is an essential part of its faith.  The court held that the ban is a neutral, generally applicable statute whose purpose is to prevent animal cruelty.

Religious Objections To Medical College's COVID Vaccination Requirement Upheld

In Magliulo v. Edward Via College of Osteopathic Medicine, ((WD LA, Aug. 17, 2021), a Louisiana federal district court issued a temporary restraining order barring a medical college from conditioning plaintiff students' enrollment on their receiving a COVID-19 vaccination. The students had requested an exemption from the college's requirements for religious reasons-- they believed the vaccine was derived from aborted fetal tissue. The college would grant the exemption only if the objecting students complied with extensive restrictions. The court held that Louisiana statutes allow students to assert religious or philosophical objections to the vaccine requirement. It also concluded that the refusal to exempt religious objectors violates the free exercise clause of the Louisiana constitution and the Louisiana Preservation of Religious Freedom Act.  The Louisiana Attorney General had backed the students' position in the case, and the AG's Office issued a press release discussing the decision.

Louisiana Governor Vetoes Ban On Transgender Women Playing On Girls' Sports Teams

The Louisiana governor's office announced yesterday that Gov. John Bel Edwards has vetoed SB156, the Fairness In Women's Sports Act (full text), saying in part:

The bill ... sought to prevent transgender girls and women from participating on athletic teams or in sporting events designated for girls or women at elementary, secondary and postsecondary schools. Gov. Edwards issued the following statement:

As I have said repeatedly when asked about this bill, discrimination is not a Louisiana value, and this bill was a solution in search of a problem that simply does not exist in Louisiana. Even the author of the bill acknowledged throughout the legislative session that there wasn’t a single case where this was an issue.

Louisiana Illuminator reports on the Governor's action.

5th Circuit Hears Arguments On Louisiana COVID Limits On Churches

On Monday, the U.S. 5th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Spell v. Edwards. In the case, a Louisiana federal district court dismissed a suit by a pastor challenging the state's COVID-19 limits on worship services. (See prior posting.) An application to the U.S. Supreme Court for an emergency injunction pending appeal was rejected by Justice Alito. (See prior posting.) AP reports on the oral arguments.

Suit Challenging Louisiana COVID-19 Limits On Churches Fails

 In Spell v. Edwards, (MD LA, Nov. 10, 2020), a Louisiana federal district court dismissed a suit by a pastor challenging the state's COVID-19 limits on worship services. The court held that plaintiffs' claim for injunctive relief is moot because the specific Proclamation they challenge has expired. The court also dismissed plaintiffs' claim for damages, saying in part:

Governor Edwards's Proclamations have always treated comparable secular institutions similarly to comparable religious institutions.... 

To the extent that Plaintiffs argue that any restrictions on their right to gather violate the U.S. Constitution, they are clearly incorrect.

The Advocate reports on the decision.

New Developments In the Abortion Rights Controversy

The past few days have brought several developments in the battle over abortion rights. In Colorado, an Initiative measure on the ballot that would have banned abortions after 22 weeks of gestation was defeated 59% to 41% (89% of precincts reporting). In Louisiana voters approved by a margin of 62% to 38% an amendment to the state constitution providing "To protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion."

Meanwhile last week, the Alabama Supreme Court in Magers v. Alabama Women's Center Reproductive Alternatives, LLC, (LA Sup. Ct., Oct. 30, 2020), dismissed a wrongful death action brought by the father of an aborted 6-week old fetus against a clinic that provided the mother with a pill to induce a medication abortion. The trial court dismissed the suit, and the state Supreme Court dismissed because appellant did not comply with the procedural requirements for the type of brief that needs to be submitted for an appeal. However Justice Mitchell, joined by 3 other justices wrote concurring opinion that said in part:

I write separately, however, to state my view that Roe v. Wade ... and Planned Parenthood of Southeastern Pennsylvania v. Casey ... are due to be overruled by the United States Supreme Court....

First, the central holding of Roe -- that there is a constitutional right to have an abortion based on a judicially created trimester framework -- has no grounding in the text of the United States Constitution....

Second, the right to have an abortion has no foundation "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

[Thanks to Scott Mange for the lead as to Alabama.]

Court Rejects Church's Claim That Its Free Exercise Rights Include Cockfighting

In Plumbar v. Perrilloux, (MD LA, July 13, 2020), a Louisiana federal district court refused to issue a preliminary injunction against enforcement of Louisiana's statute that bans cockfighting.  Members of Holy Fight Ministries claim that cockfighting is an integral and essential part of their religious faith. In denying the injunction, the court said in part:

Defendants have provided satisfactory evidence to show that the state has a compelling interest in enacting a law banning cockfighting and because the evidence casts doubt upon the type of institution operated by Plaintiffs. In other words, the evidence suggests that the cockfighting activities were more commercial in nature than a bona fide religious ritual.

Supreme Court Invalidates Louisiana Abortion Law Requiring Clinic Doctors To Have Hospital Admitting Privileges

The U.S. Supreme Court today in June Medical Services L.L.C. v. Russo, (U.S. Sup. Ct., June 29, 2020), by a 5-4 vote, struck down Louisiana's law that requires doctors at abortion clinics to hold active admitting privileges at a hospital within 30 miles of the clinic.  At issue in the case were (1) whether abortion providers have standing to assert their patients' abortion rights, and (2) whether the Louisiana statute is constitutional.  The Court in 2016 in Whole Women's Health v. Hellerstedt struck down a similar Texas statute.

Justice Breyer wrote today's plurality opinion which was joined by Justices Ginsburg, Sotomayor and Kagan.  As to standing, the plurality held:

The State did not mention its current objection until it filed its cross-petition—more than five years after it argued that the plaintiffs’ standing was beyond question.

The State’s unmistakable concession of standing as part of its effort to obtain a quick decision from the District Court on the merits of the plaintiffs’ undue-burden claims bars our consideration of it here.

On the merits, the plurality said in part:

The District Court found that enforcing the admitting privileges requirement would “result in a drastic reduction in the number and geographic distribution of abortion providers.” ... In light of demographic, economic, and other evidence, the court concluded that this reduction would make it impossible for “many women seeking a safe, legal abortion in Louisiana . . . to obtain one” and that it would impose “substantial obstacles” on those who could....

The District Court found that there was “‘no significant health-related problem that the new law helped to cure.’” ...

We conclude, in light of the record, that the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is “clearly erroneous.” Given the facts found, we must also uphold the District Court’s related factual and legal determinations. These include its determination that Louisiana’s law poses a “substantial obstacle” to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an “undue burden” on a woman’s constitutional right to choose to have an abortion.

Chief Justice Roberts filed a concurring opinion, saying in part:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.....

The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.

Justice Thomas filed a dissenting opinion, saying in part:

Despite the fact that we granted Louisiana’s petition specifically to address whether “abortion providers [can] be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients,” ... a majority of the Court all but ignores the question. The plurality and THE CHIEF JUSTICE ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.

Justice Alito filed a dissenting opinion, joined by Justice Gorsuch, and joined in part by Justices Thomas and Kavanaugh, saying in part:

The plurality concludes that the Louisiana law does nothing to protect the health of women, but that is disproved by substantial evidence in the record. And the plurality upholds the District Court’s finding that the Louisiana law would cause a drastic reduction in the number of abortion providers in the State even though this finding was based on an erroneous legal standard and a thoroughly inadequate factual inquiry....

Both the plurality and THE CHIEF JUSTICE hold that abortion providers can invoke a woman’s abortion right when they attack state laws that are enacted to protect a woman’s health. .... [T]he idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.

Justice Gorsuch filed a dissenting opinion, saying in part:

The judicial power is constrained by an array of rules. Rules about the deference due the legislative process, the standing of the parties before us, the use of facial challenges to invalidate democratically enacted statutes, and the award of prospective relief. Still more rules seek to ensure that any legal tests judges may devise are capable of neutral and principled administration. Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.

Today’s decision doesn’t just overlook one of these rules. It overlooks one after another....

Justice Kavanaugh filed a dissent, saying in part:

[I]n my view, additional fact finding is necessary to properly evaluate Louisiana’s law. As JUSTICE ALITO thoroughly and carefully explains, the factual record at this stage of plaintiffs’ facial, pre-enforcement challenge does not adequately demonstrate that the three relevant doctors ... cannot obtain admitting privileges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-privileges law.

New York Times reports on the decision.

5th Circuit Dismisses Church's Challenge To COVID-19 Order As Moot

In Spell v. Edwards, (5th Cir., June 18, 2020), the U.S. 5th Circuit Court of Appeals dismissed as moot a constitutional challenge to Louisiana Governor John Bel Edwards' COVID-19 order that restricted in-person church services to ten congregants. On June 5, the Governor issued a new order allowing churches to operate at 50% of capacity. Judge Ho concurred, but said that a future case might turn out differently.  He said in part:

If protests are exempt from social distancing requirements, then worship must be too....

Such support for the protests reflects a commendable commitment to equality. But public officials cannot devalue people of faith while elevating certain protestors. That would offend the First Amendment—not to mention the principle of equality for which the protests stand.

Minister Challenges Louisiana Cockfighting Ban

Suit was filed last week in a Louisiana federal district court by Holy Fight Ministries and its minister claiming that Louisiana's ban on cockfighting violates their federal and state free exercise rights as well as the Establishment Clause. The complaint (full text) in Plumbar v. Landry, (MD LA, filed 6/12/2020), alleges in part:

Reverend Plumbar, Holy Fight Ministries and its congregation hold the sincere religious belief that cockfighting represents that while they strive for CHRIST, they have a necessary symbolic physical manifestation, an epiphany through the fighting cock, a religious mandate of the struggle between good and evil, a struggle for life or death for the Salvation of the soul, and thus cockfighting is an integral and essential part of their religious faith.

[Thanks to Scott Mange for the lead.]

Louisiana Limits On Church Services Upheld

In Spell v. Edwards, (MD LA, May 15, 2020), a Louisiana federal district court upheld the validity of the Louisiana governor's COVID-19 restrictions on church services.The court said in part:

At the core of their argument, Plaintiffs submit that their congregation “is a large assembly of more than 2,000 individuals” whose religious beliefs require them to assemble for church in person.... Additionally, Plaintiff Spell avers that he is imbued with a “duty to lay hands on the sick and pray for them so that they may become well,” which, along with holy communion and the love offering, would lose meaning absent a public gathering.... 

The Court finds that there is a substantial relationship between the occupancy limitations in the Governor’s orders and the current severe public health crisis. Such restrictions are directly intended to limit the contact-based spread of COVID-19. Additionally, like the law at issue in Jacobson, Proclamation No. 52 JBE 2020 is not a complete ban on Plaintiffs’ rights as alleged by Plaintiffs. Under the terms of the order, Plaintiffs have been free to hold outdoor services with as many congregants as they would like and nothing in the orders proscribes, inhibits or regulates the content of their religious speech. Plaintiffs have always been free to fully exercise their rights to assembly, although for smaller numbers of congregants.

(See prior related posting).

Pastor Sues Over COVID-19 Orders and Conditions of Bond

In Louisiana, Pastor Tony Spell, who has defied state COVID-19 stay-at-home orders by holding large church services at Life Tabernacle Church in Central, Louisiana, has filed suit against Governor John Bel Edwards and other officials seeking a temporary restraining order allowing him to continue to hold services.  The suit challenges both the Governor's emergency orders and special conditions of bond imposed on Spell after he was charged with nearly running over a protester with his church bus. Those special conditions include compliance with the Governor's orders. The complaint (full text) in Spell v. Edwards, (MD LA, filed 5/7/2020) alleges in part:

There has been no factual determination made that Pastor Spell has actually violated the ambiguous and contradictorily-worded Emergency Orders, but Defendants are enforcing by penalties and home incarceration the Emergency Orders against him as if alleged violations were proven fact by the "end run" of a misplaced "special condition of bond," currently imposed by a Louisiana State District Court judge. Furthermore Defendants have explicitly failed and refused to even allow argument regarding the discriminatory and disparately applied orders against Pastor Spell and Life Tabernacle Church while allowing local and similarly situated non-religious businesses-"big box" retailers, groceries and hardware stores to continue business accommodating gatherings, crowds of more than ten (10) people or of any limit whatsoever, without the enforcement of any "social distancing," or other measures supposedly required by the Emergency Orders.

WBRZ News reports on the lawsuit.

Administrative Offices of New Orleans Archdiocese File For Bankruptcy

On Friday, the Catholic Archdiocese of New Orleans announced that the Administrative Offices of the Archdiocese have filed for Chapter 11 bankruptcy reorganization, saying in part:

The move was necessitated by the growing financial strain caused by litigation stemming from decades-old incidents of clergy abuse as well as ongoing budget challenges. The unforeseen circumstances surrounding COVID-19 have added more financial hardships to an already difficult situation.  

This filing only affects the Archdiocesan administrative offices.... The Archdiocese’s action will not affect individual church parishes, their schools, schools run by the various religious orders, or ministries of the church. These offices will continue daily ministry as usual....

The intention of the filing is to allow time to develop a reorganization plan detailing how available assets and insurance coverage will be used to settle outstanding claims and to negotiate reasonable settlements while enabling the administrative offices to continue and emerge better prepared for the future. This reorganization will also allow the Archdiocese to address remaining clergy abuse cases in a way that will allow funds to go directly to victims instead of funding prolonged, costly litigation.

5th Circuit Dismisses Street Preacher's Suit Over Summons

In Roy v. City of Monroe, (5th Cir., Feb. 13, 2020), the U.S. 5th Circuit Court of Appeals affirmed the dismissal of a suit by a street preacher who was issued a summons, but then acquitted, of disturbing the peace. He then sued the police and the city of Monroe, Louisiana for violation of his free speech and free exercise as well as for other violations.  The 5th Circuit summarized it conclusions:

[T]he city of Monroe’s “disturbing the peace” ordinance is not unconstitutionally vague; that, because Sergeant Booth had probable cause to issue a summons under the ordinance, he was entitled to qualified immunity from Roy’s First Amendment retaliation claim; and that, in the light of these holdings, Roy cannot prevail on his claims under the Fourth Amendment and Due Process Clause.

AP reports on the decision.

Supreme Court Grants Certiorari On Louisiana Abortion Law Restriction

The U.S. Supreme Court today agreed to hear appeals involving the constitutionality of Louisiana's abortion law.  The Louisiana Unsafe Abortion Protection Act requires any abortion provider to have admitting privileges at a hospital within 30 miles of the location where abortions are performed. The cases are June Medical Services LLC v. Gee, (Docket No. 18-1323, cert. granted 10/4/2019), and Gee v. June Medical Services, LLC, (Docket No. 18-1460, cert. granted 10/4/2019). (Order list).  In March 2016, the U.S. Supreme Court summarily upheld a preliminary injunction preventing the Act from going into effect. (See prior posting.) In September 2018, the U.S. 5th Circuit Court of Appeals upheld the statute. (Full text of opinion.) In January 2019, the full 5th Circuit, by a vote of 6-9, denied en banc review. (Full text.) Plaintiff appealed the substantive holding to the Supreme Court. (SCOTUSblog case page). The state cross-appealed the grant of standing to plaintiffs. (SCOTUSblog case page). NPR reports on the grant of certiorari.

Supreme Court Keeps Injunction Against Louisiana Abortion Law In Effect

In June Medical Services, L.L.C. v. Gee, (US Sup. Ct. Feb. 7, 2019), a case involving Louisiana's new abortion law, the U.S. Supreme Court by a 5-4 vote prevented the law from going into effect pending the filing of a petition for certiorari.  A 5th Circuit Court of Appeals decision  had stayed a district court's injunction against the law.  Now the Supreme Court has stayed the 5th Circuit's action. At issue is a facial challenge to Louisiana's law that requires doctors at abortion clinics to have admitting privileges at nearby hospitals.  Challengers had argued that this would leave only one abortion clinic operating in the state.  In allowing the law to go into effect, the 5th Circuit questioned that conclusion.  In the Supreme Court, Justices Thomas, Alito, Gorsuch and Kavanaugh would have denied the application so that the law could take effect.  Justice Gorsuch, writing only for himself, filed an opinion saying that:

I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period if the Fifth Circuit’s factual prediction about the doctors’ ability to obtain admitting privileges proves to be inaccurate.

NBC News reports on the decision.

Settlement Filed In Louisiana Religion In Schools Case

Yesterday a settlement agreement was filed with a Louisiana federal district court in Does 1-4 v. Bossier Parish School Board.  In the case (see prior posting), plaintiffs claimed widespread Establishment Clause violations in classrooms at at school events.  As part of the settlement, the school board has adopted a revised religious expression policy.  KTBS News reports that both sides are stressing elements of the settlement that they consider victories:

Americans United said provisions of the settlement include:

• Creation of a monitoring committee to review and resolve potential violations or disputes involving religious freedom.
• An agreement by the School Board to create, expand or seek out appropriate facilities to minimize the need to hold school events in places of worship.
• A commitment to protecting the rights of all Bossier students to pray in school, as long as the prayers are initiated by students, aren’t disruptive and don’t occur during class time.
• Permission for Bossier teachers to teach about religion in an objective manner, but not proselytize students.

The School Board said the agreement also includes the following:

• Students maintain the right to pray at school and at school events.
• Students will be allowed to speak about religion at school events.
• Does not penalize school employees who bow their heads when prayers are offered.
• Allows teachers to teach about religion in an objective manner.
• Allows student clubs of all kinds, including Fellowship of Christian Athletes, to continue to organize, meet and be active on campus.
• Allows students to express their own ideas verbally and to distribute literature.
• Allows employees to wear items of jewelry that include symbols associated with religion