Court Denies TRO In Challenge To Trump's Executive Orders on Antisemitism

In McClanahan v. Trump, (WD MO, June 9, 2025), a Missouri federal district court refused to grant a temporary restraining order in a challenge to President Trump's Executive Orders directing federal agencies to use the International Holocaust Remembrance Alliance (“IHRA”) definition of antisemitism in enforcing Title VI of the Civil Rights Act and which direct federal agencies to withhold funding from universities that do not bar criticism of Israel.  According to the court:

Plaintiff brings his action challenging the constitutionality of Executive Orders 13899 and 14188 based on alleged violations of his First Amendment Right of free speech, Violation of his Fifth Amendment Right under the Due Process Clause; and violation of the Establishment Clause of the First Amendment....

Plaintiff identifies five constitutional arguments he believes have a likelihood of succeeding on the merits. Those arguments are First Amendment – Viewpoint Discrimination; First Amendment – Chilling Effect; First Amendment – Right to Petition; Establishment Clause; and Fifth Amendment – Due Process and Vagueness. Defendants argue that Plaintiff has alleged not facts indicating a reasonable belief that he will lose his federal benefits and no link betweean y prospective loss of his federal benefits and the challenged executive orders. 

The court concluded that plaintiff's likelihood of success on any of these claims was low.

Missouri Supreme Court Orders Re-evaluation of Injunction Barring Enforcement of Abortion Clinic Licensing

In State ex rel. Kehoe v. Zhang, (MO Sup. Ct., May 27, 2025) the Missouri Supreme Court held that a state trial court judge who enjoined enforcement of licensing requirements imposed on abortion clinics applied the wrong standard in determining whether preliminary injunctions should be granted. The Court ordered the trial court judge to vacate her orders granting preliminary relief and re-evaluate the requests under the new stricter standard two abortion clinics' requests for preliminary injunctions. St. Louis Public Radio reports on the Court's decision.

Employees' Suit Against School Board for Denying Religious Exemption from Covid Vaccine Moves Ahead

Decisions in suits by former employees who were denied religious exemptions from employer Covid vaccine mandates continue to be handed down by the courts.  Here is a recent example:

In Brandon v. Board of Education of the City of St. Louis, (ED MO, May 8, 2025), a Missouri federal district court in a 76-page opinion refused to dismiss 16 employees' free exercise, equal protection, Title VII and state human rights act claims against the St. Louis school board. However, damage claims against the superintendent and the chief human resource officer were dismissed on qualified immunity grounds. Plaintiffs all had requested religious exemptions from the Board's Covid vaccine mandate. The Board received 189 requests for religious exemptions from its 3500 employees. None of the requests were granted. The board granted between 40 and 50 disability and medical exemptions. The court said in part:

Defendants have failed to meet their initial summary-judgment burden of showing that no genuine dispute of material fact exists as to Plaintiffs’ sincere religious beliefs....

... [T]he very providing of exemptions rendered the contract not generally applicable because it “‘invite[d]’ the government to decide which reasons for not complying with the policy [were] worthy of solicitude.”...  For these reasons, the Court holds that the strict-scrutiny standard governs here....

Defendants point to three interests that Policy 4624 purportedly served: (1) education, (2) stemming the spread of COVID-19, and (3) promoting “the health, safety, and general welfare of students.”...

Defendants argue that Policy 4624 was necessary to providing “children of any and all backgrounds safe access to education, social mobility, and athletic, cultural[,] and social development.”...  The Court agrees that these interests are compelling. ...

But the Court disagrees that  Defendants have satisfied their summary-judgment burden and proven that Policy 4624 was narrowly tailored to serve those interests....

... [T]he Board could have granted every request for religious exemption, while still granting all the disability and medical exemptions that it granted, and achieved a total employee vaccination rate of between 93.1%  ... and 93.4%.....

In sum, the record at a minimum strongly indicates that the Board denied all religious-exemption requests wholesale, and Plaintiffs thus received vastly different treatment than their comparators did....

Plaintiffs marshal evidence that the Board denied Plaintiffs’ religious-exemption requests because the Board thought that the religious-exemption requests were less important than other exemption requests. With this evidence, Plaintiffs more than show that a genuine dispute of material fact exists as to whether Defendants unlawfully intended to discriminate against Plaintiffs based on Plaintiffs’ protected religious beliefs....

Missouri Regulation of Church-Run Child Care Homes Upheld

In CNS International Ministries, Inc. v. Bax, (ED MO, March 3, 2025), a Missouri federal district court rejected a series of challenges to Missouri's Residential Care Facility Notification Act. The Act requires disclosures, background checks, recordkeeping, and health and safety standards for residential care facilities housing children that are run by religious organizations. In particular CNS objected to background checks that disqualified two of its employees. Among other things, the court concluded that the statute did not infringe CNS's 1st Amendment right to expressive association, saying in part:

Under the statute and its regulations, members of CNSIMI have the potential to be excluded from HCYH, one of CNSIMI’s programs and not its entire ministry.  Plaintiff has not established partial exclusion from HCYH would amount to a significant burden on its right to freedom of association.  But even if partial exclusion were a significant burden, the Court finds the State has a compelling interest in protecting children who are residents of LERCFs, and the RCFNA’s disclosure and background check requirements are narrowly tailored to achieve that interest....

Rejecting plaintiff's parental rights argument, the court said in part:

Under Pierce, parents cannot be compelled to send their children to public schools; they have a fundamental right to choose a private school....  Parents, however, do not have a fundamental right to send their children to a private school free of state regulation, including reasonable background check requirements.  ...

Rejecting CNS's ministerial exception argument, the court said in part:

CNSIMI does not claim that any of its “ministers” have been deemed to be ineligible for employment or presence at HCYH.  It is undisputed that two CNSIMI employees did not meet RCFNA’s background check requirements, but Plaintiff does not argue that these two employees – one who was a janitor and the other who was a cafeteria worker – meet the functional requirements of a “minister.”... Furthermore, the Court declines to make a blanket determination that CNSIMI’s teachers, house parents, administrators, and board members qualify under the ministerial exception without evidence as to how specific individuals perform these jobs....

8th Circuit: Damages Available Under RLUIPA When Defendant Received Federal Funds

In Barnett v. Short, (8th Cir., Feb. 28. 2025), the U.S. 8th Circuit Court of Appeals reversed in part the dismissal of a suit brought by a former inmate who alleges that while in administrative segregation in the Jefferson, Missouri County jail he was denied access to a Bible. The court held that damages are available in suits under the Religious Land Use and Institutionalized Persons Act, at least where the defendant does not enjoy sovereign immunity, saying in part:

Though damages against a defendant that enjoys sovereign immunity may not be "suitable" or "proper," damages against those that don't are the norm....

We therefore conclude that the district court erred in dismissing Barnett's RLUIPA claim against the county.

The court however affirmed the dismissal of the suit against the jail administrator in her individual capacity, saying in part: 

RLUIPA permits claims against a "government," see 42 U.S.C. § 2000cc–2(a), and it defines "government" to include county officials and "any other person acting under color of State law." ... That language permits suits against individual defendants in both their official and individual capacities....

But we conclude that Congress's authorization of suits against non-recipients of federal money in their individual capacities exceeds its spending power. That's because "the legitimacy of Congress' power to enact Spending Clause legislation rests not on its sovereign authority to enact binding laws, but on whether the recipient voluntarily and knowingly accepts the terms of that 'contract.'"...

The court also reversed the dismissal of plaintiff's free exercise claim against the jail administrator, but affirmed dismissal of that claim against the county because " Short did not possess the authority needed to render the county liable for her decision."

Judge Loken dissented in part, saying that he would affirm the decision to dismiss the free exercise claim against the jail administrator, agreeing with the trial court that the deprivation of the Bible did not impose a substantial burden on plaintiff's religious exercise.

Missouri and Christian Counselors Sue Localities Over Conversion Therapy Bans

Suit was filed last week in a Missouri federal district court against Kansas City and Jackson County, Missouri by the state of Missouri and Christian licensed counselors challenging ordinances passed by those jurisdictions which broadly ban licensed counselors from engaging in counseling directed at changing a minor's sexual orientation or gender identity. The complaint (full text) in Wyatt Bury, LLC v. City of Kansas City, Missouri, (WD MO, filed 2/7/2025), alleges in part:

Kansas City and Jackson County recently passed ordinances that ban purely consensual conversations—pure speech—about gender identity and sexual orientation. These ordinances not only require counselors to parrot these governments’ preferred views on sexual ethics; they also ban different views. That violates the First Amendment. 

340. The Counseling Ordinances facially and as-applied restrict speech based on content and viewpoint by prohibiting the Counselors and other licensed professionals who are Missouri citizens from proclaiming only certain content and viewpoints; by applying to speech based solely on its content; by authorizing counseling that supports only one viewpoint of gender identity and sexual orientation....  

353. The Public Accommodation Ordinance forces the Counselors to speak messages they object to by requiring them to offer and provide same-sex marital and relationship counseling because the Counselors offer and provide counseling about marriages and relationships between one man and one woman.... and to refer to clients and prospective clients by using those persons’ self-selected pronouns....

376. The City’s Public Accommodation Ordinance substantially burdens the Counselors’ sincerely held religious beliefs by requiring them either to operate their counseling practices in ways that violate their religious beliefs or to close their practices....

Plaintiffs also challenge the ordinances on vagueness grounds. 

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

Court Enjoins Most of Missouri's Abortion Restrictions, But Clinics Still Impeded from Reopening

In Comprehensive Health of Planned Parenthood Great Plains v. State of Missouri, (Cir. Ct., Dec. 20, 2024), a Missouri state trial court issued a preliminary injunction barring enforcement of many of Missouri's abortion restrictions. The court found that many of the state's restrictive laws, including the state's total ban, gestational age ban and reasons ban, to be unenforceable under the Right to Reproductive Freedom constitutional amendment approved by Missouri voters in November. However, the court refused to enjoin certain existing abortion regulations, finding that plaintiffs had not shown a likelihood of success in challenging these. Among the provisions that remain in effect are the abortion facility licensing requirements, the requirement for in-person appointments and the requirement that only physicians perform abortions. In a press release, Planned Parenthood said that some of the restrictions that remain in effect preclude it from beginning to again offer abortion services, saying in part:

... [T]he practical effect of the decision is that no health center in the state can restart abortion services because none has an abortion license, or can get one under the state’s draconian requirements. The vast majority of Planned Parenthood health centers cannot comply with the medically irrelevant size requirements for hallways, rooms, and doors—and no health centers are able to comply with an equally irrelevant, invasive vaginal exam for patients seeking medication abortion. Plaintiffs will continue to fight to see that these restrictions are enjoined.

[Thanks to Thomas Rutledge for the lead.]

SNAP Work Requirement Did Not Violate Free Exercise Rights of Plaintiff's Adult Children

In Light v. Missouri Department of Social Services, (WD MO, Dec. 12, 2024), a Missouri federal district court dismissed a suit challenging the removal of plaintiff's four adult children from the SNAP (food stamp) program because they failed to comply the requirement to register for work and accept suitable employment offers.  According to the court:

Plaintiff alleges that participation of her four adult children in the SNAP work program is against their sincerely held beliefs under the Holy Bible New Testament KJV. Specifically, Plaintiff alleges that the work registration and training requirements would cause her children to give up their time to an employer placing them under ownership, and be placed in a position of a servant....

Plaintiff does not cite, and the Court has not found, any indication where the SNAP work and training requirements are not generally applicable. 

If a law is neutral and generally applicable courts will apply a rational basis review.... Courts uphold a valid and neutral law of general applicability if it is rationally related to a legitimate governmental purpose even if there is an incidental effect on religious belief.... SNAP was established to raise levels of nutrition among low-income households. To be eligible for the program both households and individuals had to adhere to certain eligibility requirements. This is a rationally related law to a legitimate government purpose of raising levels of nutrition among low-income households....

Missouri AG Issues Opinion on Which Abortion Restrictions Remain Enforceable After Reproductive Freedom Amendment

Missouri Attorney General Andrew Bailey has issued Opinion Letter No. 22-2024, (Nov. 22, 2024) outlining the extent to which the state's restrictive abortion laws are still enforceable after voter adoption of a state constitutional amendment protecting abortion rights. The Opinion Letter was requested by Missouri Governor-Elect Mike Kehoe. The Attorney General's Opinion Letter reads in part:

... Amendment 3 was adopted-- just barely-- by a margin of 3%. In a contest where the "yes:" side was able in effect to rewrite the ballot summary language, receive tens of millions of dollars in funding from out of state, and outspent the "no" side 6 to 1, this tight margin suggests the result may be very different if a future constitutional amendment is put up for a vote.

Nevertheless, until and unless voters have an opportunity to vote again ..., Amendment 3 will render some statutes unenforceable.... Missouri statutes entirely prohibit elective abortions-- i.e., abortions other than those performed because of a medical emergency.... Amendment 3 ... will generally prohibit ... officials from enforcing these provisions....

... [T]here will remain some circumstances where these five statutes are enforceable....

First, under the express terms of the amendment, the government may still protect innocent life after viability....

Second, the Attorney General will continue to enforce these statutes in circumstances where parents do not consent to an adolescent minor obtaining an abortion. Under the U.S. Constitution, parents have a "fundamental right ... to make decisions concerning the care, custody, and control of their children."... This includes the "right to refuse unwanted medical treatment."... Amendment 3 cannot displace that federal constitutional right....

... [W]hen the Supreme Court reversed the Roe line of cases, ... the court restored longstanding parental rights.

Third... [t]he right of parents to forbid minors from obtaining abortions should not be misunderstood to somehow imply a right to force abortion on minors.

The same is true for adults coerced into abortion.... Amendment 3 does not give abortion clinics a right to perform abortions on women who have been coerced....

Missouri Independent reports on the Attorney General's Opinion Letter. [Thanks to Scott Mange for the lead.]

Missouri Trial Court Upholds State's Ban on Gender Affirming Care for Minors

In Noe v. Parson, (MO Cir. Ct., Nov. 25, 2024), a Missouri state trial court upheld the constitutionality of Missouri's ban on gender transition surgery for minors and its 4-year moratorium on puberty-blocking drugs and cross-sex hormones for minors for the purpose of treating gender dysphoria. It also upheld the state's ban on the use of state Medicaid funds for gender transition procedures.  The decision, reflected in a 74-page opinion setting out extensive findings of fact and conclusions of law, comes in a facial challenge to Missouri's Save Adolescents from Experimentation (SAFE) Act. The court said in part:

This Court finds an almost total lack of consensus as to the medical ethics of adolescent gender dysphoria treatment....

Furthermore, the credible evidence shows that a vast majority of children who are diagnosed with gender dysphoria outgrow the condition....

Critically, Plaintiffs made the strategic decision to bring a facial challenge to the entirety of several provisions, meaning they must establish that "no set of circumstances exists under which the [provisions] would be valid."... They chose not to seek an as-applied exception, a carve-out exception, to the regulation. The Constitution does not permit a single judge to nullify the results of democratically enacted legislation where, as here, there is a medical dispute about the safety or efficacy of those interventions....

There is nothing arbitrary or irrational ... about putting in place a 4-year pause on interventions that medical authorities across the world have said lack any substantial evidentiary support....

Lambda Legal and ACLU of Missouri said they will appeal the decision. Missouri Independent reports on the decision.

Missouri Supreme Court Issues Opinions Supporting Prior Order on Abortion Ballot Measure

As previously reported, on September 14 the Missouri Supreme Court ruled that the Missouri's Right to Reproductive Freedom amendment must appear on the November ballot, reversing a decision by a trial court. It indicated that opinions supporting its order would follow. Now the Court has filed those opinions.  In Coleman v. Ashcroft, (MO Sup. Ct., Sept. 20, 2024), the Missouri Supreme Court in a 4-3 decision held that petitions proposing a state constitutional amendment only need to identify existing sections of the state constitution that are inconsistent and irreconcilable with the proposed amendment. Petitions need not identify all statutes that might later be declared invalid if the proposed amendment is approved. The court also held that the proposed amendment does not violate the state constitution's single subject requirement.

Judge Powell issued a concurring opinion.  Judge Broniec, joined by Judges Fischer and Gooch, filed a dissenting opinion contending that Missouri law also requires petitions to list existing statutes that would be in direct conflict with the proposed constitutional amendment.

Missouri Supreme Court: Abortion Rights Issue Must Appear on November Ballot

 The Missouri Supreme Court yesterday ruled that the Missouri's Right to Reproductive Freedom amendment must appear on the November ballot, reversing a decision by a trial court last week. (See prior posting.) The Supreme Court in Coleman v. Ashcroft, (MO Sup. Ct., Sept. 10, 2024) said in part in its Order:

By a majority vote of this Court, the circuit court’s judgment is reversed. Respondent John R. Ashcroft shall certify to local election authorities that Amendment 3 be placed on the November 5, 2024, general election ballot and shall take all steps necessary to ensure that it is on said ballot. Opinions to follow. ...

Pursuant to section 116.150.3, the secretary of state must certify a petition as sufficient or insufficient by 5:00 p.m. on the thirteenth Tuesday before the election.  Respondent Ashcroft certified the petition as sufficient prior to that deadline, and any action taken to change that decision weeks after the statutory deadline expired is a nullity and of no effect....

Missouri Independent reports on the decision.

Trial Court Says Missouri's Abortion Rights Initiative Petitions Were Invalid

In Coleman v. Ashcroft, (MO Cir. Ct., Sept. 6, 2024), a Missouri state trial court held that the petitions used to obtain signatures to include Missouri's Right to Reproductive Freedom amendment on the November ballot violated the provision in Missouri law that the petitions must include all sections of existing law or of the constitution which would be repealed by the measure. The court said in part:

Defendants argued on the record that such omission was made because it would confuse voters in that Amendment 3 would eventually have some type of effect on all sorts of laws.  That theory, of course, is not an exception to the requirements of 116.050 RSMo.

The secretary of state has already certified the measure to appear on the ballot. The court said that the only remedy for such omissions was enjoining certification of the measure and its appearance on the ballot. However, the court delayed execution of the injunction until September 10, the deadline for printing the measure on the ballot, so the issue could be reviewed by an appellate court.

AP reports on the decision.

Missouri Appeals Court Refers Question of Church's Duty of Supervision to State Supreme Court

 In Doe v. First Baptist Church of Pierce City, Missouri, (MO App., Sept. 2, 2023), a Missouri appellate court described plaintiff's claim:

Plaintiff asserts that FBC, a Southern Baptist religious institution, had a duty to supervise the youth ministries program members, including herself, while they were transported on a church van as part of that program, that FBC breached this duty by failing to either have or follow a policy to protect minors from sexual abuse, and that Plaintiff was injured as a result by the actions of a fellow youth ministries program member....

The court said that a prior state Supreme Court opinion, Gibson v Brewer, would call for dismissal of the case, saying in part:

Returning to the negligence claims at issue in Gibson, we must first address the negligent hiring/ordination/retention and negligent failure to supervise claims.  Our high court observed that “[q]uestions of hiring, ordaining, and retaining clergy . . . necessarily involve interpretation of religious doctrine, policy, and administration.”...  “Such excessive entanglement between church and state has the effect of inhibiting religion, in violation of the First Amendment” and “would result in an endorsement of religion, by approving one model for church hiring, ordination, and retention of clergy.”... Similarly ... “[a]djudicating the reasonableness of a church’s supervision of a cleric—what the church ‘should know’—requires inquiry into religious doctrine” and, as with the negligent hiring/ordination/retention claim, “would create an excessive entanglement, inhibit religion, and result in the endorsement of one model of supervision.” 

The court concluded, however:

We would affirm the summary judgment of the circuit court, but due to the general interest and importance of the issues on appeal, we transfer the case to the Supreme Court of Missouri pursuant to Rule 83.02.

6 More States Enjoin Enforcement of New Title IX Rules Barring Transgender Discrimination

Yet another court has enjoined the Department of Education from enforcing its new Title IX rules that interpret Title IX's ban on sex discrimination as including a ban on gender identity discrimination. In State of Arkansas v. U.S. Department of Education, (ED MO, July 24, 2024), a Missouri federal district court issued a preliminary injunction barring enforcement against Arkansas, Missouri, Iowa, Nebraska, North Dakota, South Dakota and the individual plaintiff, a student in a school in Arkansas who says the rule violates her religious beliefs.  the court said in part:

After preliminary review and without ultimately deciding the issue, the Court is persuaded that plaintiffs have a fair chance of prevailing on their argument that the reasoning of Bostock, a Title VII employment discrimination case, should not apply to Title IX. ...

Given that notice is the touchstone of Title IX, the statute contains no definition of sex or express prohibition of discrimination on the basis of gender identity, and it expressly permits sex-based differential treatment in certain circumstances, plaintiff States have met their preliminary burden of establishing a fair chance of prevailing on their argument that they lacked constitutionally sufficient notice that sex discrimination would be interpreted as including gender identity discrimination when they accepted federal funding under Title IX.

The court also preliminarily enjoined the new rules' expansion of the definition of harassment, concluding that the definition may violate the 1st Amendment by chilling speech. ADF issued a press release announcing the decision.

Missouri Abortion Bans Do Not Violate State Constitution's Establishment Clauses

In Blackmon v. State of Missouri, (MO Cir. Ct., June 1, 2024), a Missouri trial court held that Missouri's various statutory provisions banning abortion do not violate the Establishment Clauses of the Missouri Constitution. Plaintiffs focused particularly on the mention of God in one of the statutory provisions and the legislative determination that life begins at conception in other provisions. The court concluded that the language mentioning God was similar to that in the Preamble to the Missouri Constitution, and that finding that language problematic would call into question whether the state Constitution's Preamble itself violates the Constitution.  In rejecting plaintiffs' other challenges, the court said in part:

Large portions of the parties' arguments centered around comments made by legislators concerning their religious motivations for supporting the Challenged Provisions. However, the court finds that individual comments by legislators should be given little to no consideration when determining the constitutionality of the Challenged Provisions....

The court does not accept Petitioners' argument that the determination that life begins at conception is strictly a religious one. The plain language of the Challenged Provisions stating that life begins at conception do not do so in religious terms.... While the determination that life begins at conception may run counter to some religious beliefs, it is not itself necessarily a religious belief. As such, it does not prevent all men and women form worshiping Almighty God or not worshipping according to the dictates of their own consciences....

Americans United issued a press release responding to the decision.

Negligence Claims Against Religious Boarding School Barred by Establishment Clause

In Drew v. Householder, (WD MO, Dec. 19, 2023), plaintiff sued Circle of Hope Boarding School, a fundamentalist Baptist school for girls, and its schoolmasters alleging that during the five years she was there she was subjected to sexual, physical and emotional abuse, and received inadequate and unaccredited formal instruction. She also alleged that the schoolmasters took $25,000 plus social security money from her. While allowing plaintiff to move ahead with several claims, the court dismissed, among others, her negligence claims, saying in part:

The Missouri Supreme Court has considered the extent to which judicial decision making may involve analysis of ecclesiastical matters without running afoul of the First Amendment’s establishment and free exercise clauses....

[A]llegations based in Missouri common law of negligence against religious institutions run afoul of the First Amendment, except in limited instances where the negligence allegation does not require interpretation of religious doctrine, policy, or interpretation.... It is plain neither of Plaintiff’s remaining negligence claims—Count Seven’s general negligence and Count Eight’s negligent supervision of students—falls into this narrow exception.... [N]egligent supervision claims against a religious institution violate the First Amendment because they require a court to evaluate “what the church ‘should know.’”... Likewise, general negligence claims against religious institutions violate the First Amendment, as it forces the court to consider how a reasonably prudent religious institution would act, thereby “excessively entangle[ing] itself in religious doctrine, policy, and administration.”...

... [T]his Court likewise finds that dismissal of Plaintiff’s negligence claims in Counts Six, Seven, Eight, and Eleven is appropriate also under the provisions of the Missouri Constitution declaring separation of church and state....

Missouri Appeals Court Finds Secretary of State's Ballot Summary of Abortion Rights Initiatives Unfair

In Fitz-James v. Ashcroft, (MO App., Oct. 31, 2023), a Missouri state appeals court agreed with a trial court that ballot summaries prepared by the Secretary of State for six different abortion rights initiative proposals were insufficient and unfair.  Three of the offending summaries read as follows:

Do you want the Missouri Constitution to:

• allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth, without requiring a medical license or potentially being subject to medical malpractice;

• nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion;

• allow for laws to be enacted regulating abortion procedures after Fetal Viability, while guaranteeing the right of any woman, including a minor, to end the life of their unborn child at any time; and 

• require the government not to discriminate against persons providing or obtaining an abortion, potentially including tax-payer funding.

The appeals court, with a few modifications, accepted the trial court's rewritten versions of the ballot summaries. For example, the appeals court prescribed the following rewrite for one of the proposals:

Do you want to amend the Missouri Constitution to:

• establish a right to make decisions about reproductive health care, including abortion and contraceptives, with any governmental interference of that right presumed invalid;

• remove Missouri’s ban on abortion;

• allow regulation of reproductive health care to improve or maintain the health of the patient;

• require the government not to discriminate, in government programs, funding, and other activities, against persons providing or obtaining reproductive health care; and

• allow abortion to be restricted or banned after Fetal Viability except to protect the life or health of the woman?

The Secretary of State issued a press release criticizing the decision and saying that he plans to appeal it.  AP reports on the decision. (See prior related posting.) [Thanks to Thomas Rutledge for the lead.]

Missouri Supreme Court Orders Steps to Allow Reproductive Rights Initiative Petitions to Be Circulated

In State of Missouri ex rel. Dr. Anna Fitz-James v. Bailey, (MO Sup. Ct., July 20, 2023), the Missouri Supreme Court affirmed a trial court's issuance of a writ of mandamus requiring the state Attorney General to approve the State Auditor's fiscal note summaries to eleven Reproductive Rights initiative petitions. That approval is necessary so that the Secretary of State can certify the ballot language and proponents can begin to circulate the petitions for signatures. (Full text of petitions [scroll to No. 2024-77 through 2024-87]). AP reports on the case. State Attorney General Andrew Bailey-- a gubernatorial appointee in Missouri-- contended that the Auditor's conclusion that the proposed constitutional amendments would have no fiscal impact were inaccurate.  Bailey, an abortion opponent, contended that. if approved by voters, the state could lose $12.5 billion in Medicaid funds and $51 billion in future tax revenues because of fewer births. This earlier report by the Missouri Independent has additional background.

 In its opinion, the Missouri Supreme Court said in part:

The Attorney General’s narrow authority to approve the “legal content and form” of the fiscal note summaries cannot be used as a means of usurping the Auditor’s broader authority to assess the fiscal impact of the proposals and report that impact in a fiscal note and fiscal note summary....

The Attorney General, nevertheless, characterizes his claim as challenging the “legal content and form” of the fiscal notes and their summaries because he contends they use language that is argumentative or likely to prejudice readers in favor of the proposed measure.... [H]e claims the content of the notes is likely to prejudice voters in favor of the proposals by underestimating the fiscal impact. And, because he believes the fiscal notes understate the costs to state and local governments, the Attorney General claims the summaries inevitably do so as well. The Attorney General has no authority under section 116.175 to refuse to approve fiscal note summaries on such grounds....

For more than 40 years, this Court has noted “that procedures designed to effectuate [the rights of initiative and referendum] should be liberally construed to avail voters with every opportunity to exercise these rights” and that “[t]he ability of voters to get before their fellow voters issues they deem significant should not be thwarted in preference for technical formalities.”... If the Attorney General had complied with his duty ..., the Secretary would have certified the official ballot titles for Fitz-James’s initiative petitions nearly 100 days ago.

Certiorari Granted in Case on Interpretation of Title VII

On Friday, the U.S. Supreme Court granted review in Muldrow v. St. Louis, MO, (Docket No. 22-193, certiorari granted 6/30/2023) (Order List), a Title VII employment discrimination case. The grant of certiorari was limited to the question of:

Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?

At issue is a Title VII sex discrimination claim by a female police sergeant who was transferred from the St. Louis police department's Intelligence Division to work in the city's Fifth District and was subsequently denied a transfer to the Second District. The Court of Appeals in Muldrow v. City of St. Louis, (8th Cir., April 4, 2022), held that absent a showing of harm resulting from a transfer, there has been no adverse employment action for purposes of Title VII. The Court's decision will impact religious discrimination in employment cases under Title VII as well as sex discrimination cases. Here is SCOTUSblog's case page with links to all the filings in the Supreme Court in the case.