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.

Teachers May Move Ahead with Suit Challenging Denial of Exemption from Covid Vaccine Mandate

 In Brandon v. Board of Education of the City of St. Louis, (ED MO, June 21, 2023), a Missouri federal district court refused to dismiss Free Exercise and Equal Protection claims, as well as Missouri Human Rights Act and Title VII claims by 41 of the 43 teachers and staff, in a suit challenging the denial of religious exemptions from the school district's Covid vaccine mandate. Discussing plaintiffs' First Amendment claim, the court said in part:

[Eighth Circuit precedent] instructs district courts to apply Jacobson to laws passed and enforced while an emerging public-health emergency is “developing rapidly, poorly understood, and in need of immediate and decisive action,.., but the tiers of scrutiny when “time [was] available for more reasoned and less immediate decision-making by public health officials” and “the immediate public health crisis [had] dissipated,”.... Again, which standard applies depends upon a “factual determination,”..., and the Court must at this point accept Plaintiffs’ well-pleaded factual allegations as true.... Because Plaintiffs have pleaded the existence of a late-2021 policy apparently lacking the urgency that characterized the regulations and executive orders issued early in the pandemic, [precedent] compels the Court—at least for now—to apply the ordinary tiers of scrutiny to the District’s Policy as alleged.

Among the claims dismissed by the court was the claim that refusal to grant the religious exemptions violated a Missouri statute that prohibits discrimination for refusal to participate in abortions.

Suit By Clergy Challenges Missouri Abortion Bans

Suit was filed this week in a Missouri state trial court by 13 clergy from several Christian denominations, as well as from Unitarian Universalist and Jewish traditions challenging a series of Missouri abortion restrictions and bans as violating the state constitution's prohibition on favoring any religion and its protection of free exercise of religion.  The 83-page complaint (full text) in Blackmon v. State of Missouri, (MO Cir. Ct., filed 1/19/2023), alleges in part:

8. This open invocation of religion in enacting H.B. 126 marked a departure from earlier legislative efforts to restrict abortion, when the sponsors claimed that their intent was to protect Missouri women. The legislative debate over those provisions reveals that, as with H.B. 126, the true purpose and effect of these laws was to enshrine certain religious beliefs in law. In enacting S.B. 5, for example, legislators spoke repeatedly of their intent to protect “innocent life,” could point as justification for the law only to biased investigations by the Senate “Sanctity of Life” Committee, and ignored the testimony of clergy who warned that targeting providers to limit abortion access impermissibly imposed one religious view on everyone else....

10. Collectively, Plaintiffs, like other clergy and faith communities all across this State, have through their work providing care, counseling, teaching, and preaching, spent decades countering the false but all too common assertion that faith and abortion access are incompatible. Their beliefs and lived experiences stand in stark contrast to the religious dictates that the Total Abortion Ban, Gestational Age Bans, Reason Ban, 72-Hour Delay, Same-Physician Requirement, Medication Abortion Restrictions, and Concurrent Original Jurisdiction Provision (collectively, the “Challenged Provisions”) impose on all Missourians.

NPR reports on the lawsuit. 

8th Circuit: City Food Ordinance Did Not Violate Pastor's Free Speech Rights

In Redlich v. City of St. Louis, (8th Cir., Oct. 12, 2022), the U.S. 8th Circuit Court of Appeals affirmed the dismissal of a suit brought by a Christian pastor and his assistant challenging a city ordinance that required a permit to distribute potentially hazardous food. Plaintiffs had previously been cited for distributing bologna sandwiches to hungry people they encountered in St. Louis. They contended that as applied to them, the ordinance violated their free speech rights. The court held that even assuming plaintiffs' actions amounted to expressive conduct, the ordinance furthers a substantial governmental interest and is narrowly tailored to that interest. It said in part:

Appellants would be required to pay a $50 fee for the permit at least two days in advance of their food-sharing activities and notify the City of both the time and place where the food would be distributed. These provisions ensure that health inspectors have an opportunity to determine whether the temporary food establishment is complying with the Ordinance.

Courthouse News Service reports on the decision.

Christian Mission's Suit Over Sex Offender Statute Is Moot

In City Union Mission, Inc. v. Sharp, (8th Cir., June 10, 2022), the U.S. 8th Circuit Court of Appeals affirmed the dismissal of a suit brought by an organization that offers meals, shelter and a Christian Life Program for men seeking help with life skills and addiction. At issue was whether a state statute barring sex offenders from being present or loitering within 500 feet of a children's playground is constitutional. The court held that the statute does not apply to the Mission because it does not allege that its clients are loitering when they are receiving services. Therefore its suit seeking an injunction is moot.  Its claim for damages against the former sheriff who enforced the statute were dismissed on qualified immunity grounds. The court said in part:

we can find no “controlling case” or “robust consensus of cases of persuasive authority” that would have notified Sheriff Sharp that Affected Persons had a clearly established right to seek City Union Mission’s services in a building located within 500 feet of a park containing playground equipment.

Judge Kobes filed a concurring opinion.

Muslim Woman Sues Gun Range For Religious Discrimination

A religious discrimination suit was filed yesterday in a Missouri federal district court against a "faith, family and freedom" based indoor gun range that refuses admission to Muslim women wearing hijabs. The complaint (full text) in Barakat v. Brown, (WD MO, filed 12/28/2021) alleges that this policy of the Frontier Justice gun range, owned by a Christian family, violates the public accommodation anti-discrimination provisions in Title II of the 1964 Civil Rights Act.  CAIR issued a press release announcing the filing of the lawsuit.

8th Circuit: Challenge To Church Capacity Limits Dismissed On Mootness and Standing Grounds

 In Hawse v. Page, (8th Cir., July 30, 2021), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, dismissed on standing and mootness grounds challenges to St. Louis County, Missouri's now-superseded COVID-related limit on the number of persons who could attend church services. The majority said in part:

Whether or not the churches were formally closed in April 2020, the complaint is bereft of an allegation that but for the Order, the churches attended  by the appellants would have allowed groups of ten or more persons to gather in the early weeks of the pandemic.

Judge Stras filed a dissenting opinion. 

Food Ordinance Does Not Violate Rights Of Christians Distributing Sandwiches

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

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

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

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

College Seeks Injunction Pending Appeal To 8th Circuit In Suit Against HUD's Transgender Policy On Student Housing

In February of this year, the Department of Housing and Urban Development issued a Directive interpreting the Fair Housing Act as barring discrimination on the basis of sexual orientation or gender identity. This meant, among other things, that colleges could not discriminate against transgender individuals in access to student housing. College of the Ozarks filed suit challenging the Directive as a violation of its religious freedom rights. (See prior posting.) A Missouri federal district court refused to issue a TRO or a preliminary injunction, denied an injunction pending appeal, and dismissed the case as non-justiciable on the ground that the Directive is a non-binding policy statement.  Now the College has filed a motion with the U.S. 8th Circuit Court of Appeals seeking an injunction pending appeal. The School of the Ozarks, Inc. v. Biden, (8th Cir., filed 6/11/2021). (Full text of memorandum in support of the motion.) ADF issued a press release announcing the filing of the motion.

County's Current COVID Restrictions Upheld

In Abundant Life Baptist Church of Lee's Summit, Missouri v. Jackson County, Missouri, (WD MO, May 17, 2021), a Missouri federal district court held that free exercise, free speech, freedom of assembly and Establishment Clause challenges to prior versions of Jackson County's COVID-19 restrictions should not be dismissed. However challenges to the current version of the restrictions were dismissed because the restrictions do not distinguish between churches and other businesses or indoor spaces.

Missouri AG Sues County Over COVID Restrictions

Missouri's Attorney General yesterday filed suit in state court against the St. Louis County Executive challenging the county's COVID-19 orders.  The complaint (full text) in State of Missouri ex. rel. Schmitt v. Page, (MO Cir. Ct., filed 5/11/2021), alleges, among other things, that the orders violate the state's Religious Freedom Restoration Act by requiring pre-approval of large religious gatherings and imposing capacity limits and  masking requirements. The Attorney General issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.