DC Minor Consent Law Violates Parents' Free Exercise Rights

In Booth v. Bowser, (D DC, March 18, 2022), a D.C. federal district court granted a preliminary injunction on free exercise grounds against the Minor Consent for Vaccinations Act Amendment of 2020 which allows minors who are at least 11 years old to consent to vaccinations without parental approval. The court concluded that the Act burdens religious practice, explaining:

If a minor’s parent has filed a religious exemption for the child and the child elects to get a vaccine anyway, a healthcare provider must leave blank part 3 of the Certificate. Id. Part 3 is the child’s immunization record. This serves to obfuscate the child’s vaccination from his parents. But the MCA does not require providers to leave blank part 3 of the Certificate for students whose parents filed a medical exemption.

Washington Post reports on the decision.

9th Circuit: COVID Closure of Private Schools May Have Violated Due Process Rights of Parents

In Brach v. Newsom. (9th Cir., July 23, 2021), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, rejected due process challenges to California's COVID-related closure of in-person instruction in public schools, but held that the closure of in-person instruction in private schools may have violated parents' and students' due process rights. The court said in part:

We reach a different conclusion, however, as to the State’s interference in the in-person provision of private education to the children of five of the Plaintiffs in this case. California’s forced closure of their private schools implicates a right that has long been considered fundamental under the applicable caselaw—the right of parents to control their children’s education and to choose their children’s educational forum. Because California’s ban on in-person schooling abridges a fundamental liberty of these five Plaintiffs that is protected by the Due Process Clause, that prohibition can be upheld only if it withstands strict scrutiny. Given the State closure order’s lack of narrow tailoring, we cannot say that, as a matter of law, it survives such scrutiny.

Judge Hurwitz dissented in a lengthy opinion, arguing that the case is moot and also disagreeing with the majority's substantive reasoning.

Israel's Supreme Court Extends Surrogacy Rights To Same-Sex Couples and Single Men

As reported by AP and The Forward, Israel's Supreme Court sitting as the High Court of Justice yesterday ruled that the government must allow same-sex couples and single men to become parents through surrogate mothers on a equal basis with heterosexual couples and single women. Its ruling takes effect in 6 months, in order to give time for the creation of professional guidelines. AP explains:

The court ruled in 2020 that a surrogacy law, which had expanded access to single women but excluded gay couples, “disproportionately harmed the right to equality and the right to parenthood” and was unlawful.

It gave the government a year to draw up a new law, but parliament failed to meet the deadline.

[Thanks to Steven H. Sholk for the lead.]

6th Circuit Rejects Free Exercise Challenge To Corporal Punishment Limitations

In Clark v. Stone, (6th Cir., May 19, 2021), the U.S. 6th Circuit Court of Appeals rejected a challenge by fundamentalist Christian parents that a child abuse investigation infringed their free exercise and due process rights. The parents believe that their religion requires them to use corporal punishment when necessary upon their children. The investigation led to a Juvenile Court order prohibiting the parents from physically disciplining their children. The court said in part:

While we can state with ease that there is a general right to use reasonable corporal punishment at home and in schools, that right is not an unlimited one. The Clarks have offered no authority that imposing corporal punishment that leaves marks is reasonable and is therefore a protected right....

... [A]lthough targeting religious beliefs is never acceptable, a generally applicable law that incidentally burdens one’s free exercise rights will typically be upheld....

Furthermore, any challenge to this regulation would likely survive strict scrutiny.... Here, the state certainly has a compelling interest in protecting children from physical abuse, and the regulation is written such that it explicitly does not prohibit corporal punishment that does not leave marks, bruises, etc. Thus, the regulation is narrowly tailored....

Mask-In-School Requirement Challenged On Free Exercise Grounds

Suit was filed last week in an Ohio state trial court challenging as too narrow the religious exemption from Ohio's COVID-19 mask requirement in schools. The complaint (full text) in Miller v. Himes, (Putnam Cty. Com Pl., filed Sept. __, 2020), contends that the exemption for students "when an established sincerely held religious requirement exists which does not permit a facial covering" violates their free exercise rights. A school district denied an exemption to one of the plaintiffs even though she had a sincerely held religious belief  opposing masks. The district took the position that a belief is different from a religious requirement.  The suit also challenges the school mask requirement on various other grounds, including compelled speech and parental rights claims. Cincinnati Enquirer reports on the lawsuit.

Suit Challenges COVID-19 Closure of Jewish Overnight Camps

Suit was filed yesterday in a New York federal district court challenging New York COVID-19 orders that require Jewish overnight camps to remain closed this summer. The complaint (full text) in Association of Jewish Camp Operators v. Cuomo, (ND NY, filed 6/18/2020), alleges in part:

5. On June 12, 2020, Defendant announced that overnight camps would be closed for the summer of 2020 under his COVID-19 orders, without making any exceptions for Jewish overnight camps, notwithstanding that these overnight camps involve core religious exercise.

6. In contrast, Defendant has made a broad First Amendment exception from his COVID-19 orders for First Amendment activities that he favors. In particular, Defendant has created a de facto exemption from his COVID-19 orders for mass demonstrations ... even though these mass protests pose greater risks of the transmission of COVID-19 than do Jewish overnight camps.

7. Defendant also has allowed a wide array of similar, secular activities to remain open....

11. Defendant’s statewide closure of all Jewish overnight camps this summer violates Plaintiffs’ constitutional rights of the free exercise of religion and the fundamental rights of parents to control the religious education and upbringing of their children, guaranteed by the First and Fourteenth Amendments of the United States Constitution and Article III, § 3 of the New York Constitution. 

[Thanks to Steven H. Sholk for the lead.]

Parent's Challenge To California's Boarding School Regulation Is Dismissed

In Teen Rescue v. Becerra, (ED CA, Sept. 19, 2019), a California federal district court dismissed a suit brought by the parent of a child attending River View Christian Academy, a Christian boarding school which is subject to the California Community Care Facilities Act.  The Act requires private alternative boarding schools to allow students full autonomy on maters of religion and sexual identity.  Seeking to represent all parents and guardians of students in the school, plaintiff alleges that subjecting the school to these requirement violates his religious free exercise and his parental rights. The court dismissed the complaint, saying in part:

Merely developing a plan to train RVCA staff in issues relating to the lesbian, gay, bisexual, and transgender communities does not invade the First Amendment rights of RVCA parents....

Similarly, preventing a community care facility from attempting to change the sexual orientation of its students is not an invasion of the parents’ First Amendment rights. The First Amendment gives Williams the right to believe and profess whatever religion he desires. If sending his child to an exclusively faith-based educational institution is an important part of Williams’ faith, there is nothing in the CCFA that prevents him from doing so.... Williams is free to enroll his child at a CCFA-exempt religious boarding school....

[T]he only injuries alleged here were suffered by Teen Rescue, not the parents. Williams failed to identify a concrete and particularized injury in fact under the Free Exercise Clause. Thus, Williams and the other RVCA parents lack standing to bring a claim under the First Amendment.

Cert. Filed: Do Parents Have Due Process Rights In Emancipation of Teen?

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Calgaro v. St. Louis County. The petition frames the question presented as:

Whether parents’ Due Process Clause rights apply to local governments and medical providers ending parental rights, responsibilities or duties over their minor children’s welfare, educational, and medical care decisions without a court order of emancipation.

As described by the U.S. 8th Circuit Court of Appeals in its March 25, 2019 decision below (full text):

In May 2015, E.J.K. moved out of Calgaro’s home in St. Louis County, Minnesota. Calgaro never surrendered her parental rights, but E.J.K. obtained a letter from Mid-Minnesota Legal Aid describing E.J.K.’s father and Calgaro as “hav[ing] given up control and custody of their child.” The letter concluded that E.J.K. was therefore “legally emancipated under Minnesota law.”... Based on E.J.K.’s claims of emancipation, St. Louis County provided E.J.K. with funding for medical services and other living expenses, and E.J.K. obtained gender transition care from Park Nicollet Health Services.

Thomas More Society issued a press release announcing the filing of the petition for review.

Mother Challenges State's Law On Emancipation of Minors

In a suit filed earlier this week in a Minnesota federal district court, the mother of a 17-year old challenges the Minnesota statute that allows minors who are living separate and apart from their parents or legal guardians and who are managing their own financial affairs to alone consent to their own personal medical, dental, mental and other health services.  The complaint (full text) in Calgaro v. St. Louis County, (D MN, filed 11/16/2016), challenges the furnishing of medical treatment to the 17-year old-- including furnishing prescription drugs and clinical treatment for gender transition from male to female. The complaint also challenges a determination by the minor's school district of emancipation so that the mother is not entitled to the teen's school records or to participate in the minor's educational decisions.  Plaintiff claims that, because there is no procedure for the parent to challenge the determination of emancipation that was made without court order, this deprives her without due process of her parental rights to make decisions on the care of her child. Thomas More Society announced the filing of the lawsuit. NBC News reports on the litigation.