Religion Is Relevant In Trial For Marketing Unlicensed Drug

In United States v. Grenon, (SD FL, June 12, 2023), a Florida federal district court, ruled on a motion in liwas through which the government was seeking to exclude various pieces of evidence in the criminal trial of defendants for manufacturing, marketing and distributing an unlicensed drug. The court summarized the charges against defendants:

Defendants are members of Genesis II Church of Health and Healing ... which the Government alleges is “an explicitly nonreligious entity that [Defendant, Mark Scott Grenon] co-founded[.]”...

Under the guise of Genesis, Defendants promoted MMS as a miracle cure to various illnesses and ailments, even though “[w]hen ingested orally as directed by [] Defendants, MMS became chlorine dioxide, a powerful bleaching agent typically used for industrial water treatment or bleaching textiles, pulp, and paper.”...

The court ruled in part:

The Government first seeks to prevent Defendants from suggesting that their conduct was “a religious exercise, constitutionally protected under the First Amendment.”...

... [C]onsidering the Government’s accusations regarding Defendants and Genesis..., it would likely be impossible to conduct this trial without discussion of Defendants’ alleged religion, as well as their personal beliefs regarding the First Amendment...

The court also refused to preclude defendants from raising a defense under RFRA, but did rule that the applicability of RFRA is a pure question of law so that no jury instruction on the applicability of RFRA should be permitted.

9th Circuit: U.S. Has Not Waived Sovereign Immunity For Damages Under RFRA

In Donovan v. Vance, (9th Cir., June 13, 2023), the U.S. 9th Circuit Court of Appeals held that claims for injunctive and declaratory relief by Department of Energy employees who objected to the government's Covid vaccine mandate are moot because the Executive Orders being challenged have been revoked. Insofar as employees with religious objections to the vaccine were seeking damages, the court held that the United States has not waived sovereign immunity for damages under RFRA. Plaintiffs had sued federal officials in their official capacity.

Ministerial Exception and RFRA Defenses Rejected in Suit Over Firing of Bible Translation Company IT Employee

In Ratlliff v. Wycliffe Associates, Inc., (MD FL, May 26, 2023), a Florida federal district court refused to dismiss a Title VII employment discrimination suit brought against a Bible translation company by a software developer who was fired after the company learned that he had entered a same-sex marriage. The court rejected defendant's reliance on RFRA, concluding that "s RFRA does not apply to lawsuits in which the government is not a party."  It rejected defendant's "ministerial exception" defense, saying in part:

... Plaintiff does not qualify as a minister.

... Plaintiff was seemingly hired for his technological aptitude.... Accordingly, Plaintiff’s role was to employ his knowledge to develop software, not to act as a source of religious conveyance.... While the software’s purpose may have been to translate the Bible, Plaintiff himself was not doing so.... Further, Plaintiff’s direct interactions involved other software and database developers—not the individuals seeking out Defendant’s mission....

... [A]t bottom here, Plaintiff is a software developer, with no idiosyncratic religious title, background, education, or function.....

Clergy Sue Federal Penitentiary To Obtain Physical Contact With Death Row Inmates

Suit was filed last week in an Indiana federal district court by two ministers who regularly visit death row inmates in a federal penitentiary in Indiana. One plaintiff is an Episcopal minister and the other in the Unitarian Universalist Church and the Christian Church (Disciples of Christ). The complaint (full text) in Eiler v. Complex Warden, Federal Correctional Complex, Terre Haute, (SD IN, filed 4/25/2023), alleges violations of the Religious Freedom Restoration Act, saying in part:

The plaintiffs have sincere religious beliefs that at times during prayer they must be able to touch the prisoners and the prisoners desire that this physical contact occur during prayer. However, they are precluded from touching the prisoners by defendant’s policy that allows them only non-contact visitation. This policy burdens plaintiffs’ religious exercise without justification.

The complaint also alleges that barring physical contact with prisoners as they are being executed violates plaintiffs' free exercise rights under RFRA. WFIU reports on the lawsuit.

Mississippi Must Grant Religious Exemptions To School Vaccination Requirements

 In Bosarge v. Edney, (SD MS, April 18, 2023), a Mississippi federal district court issued a preliminary injunction requiring Mississippi's State Health Officer, as well as school officials named as defendants, to provide religious exemptions from the state's mandatory vaccination requirements for school children. The court said in part:

The face of the statute allows for medical exemptions but affords no exemption for religious beliefs, and the Complaint alleges that this constitutes “an unconstitutional value judgment that secular (i.e., medical) motivations for opting out of compulsory immunization are permitted, but that religious motivations are not.”....

The Attorney General’s argument is essentially that the Compulsory Vaccination Law does not violate the Free Exercise Clause because the [Mississippi Religious Freedom Restoration Act] MRFRA saves it.... Taking this argument to its logical conclusion as to Plaintiffs’ facial challenge, no Mississippi statute could ever violate the Free Exercise Clause on its face because the more general, non-specific MRFRA applies to all State laws and operates to cure any law that would otherwise be deemed to violate the Free Exercise Clause.... However, at least in this case, the Court is not persuaded that the MRFRA can be read in this fashion with respect to Plaintiffs’ facial challenge.

RNS reports on the decision.

IRS Correctly Denied Non-Profit Ruling to Church That Promoted Use of Ayahuasca

In Iowaska Church of Healing v. United States, (D DC, March 31, 2023), the D.C. federal district court upheld the IRS's refusal to grant §501(c)(3) non-profit status to a church that promotes the religious use of Ayahuasca, a tea brewed from plants containing a drug that is illegal under the federal Controlled Substances Act. The church, which has 20 members located around the world, applied to the Drug enforcement Administration for a religious exemption from CSA provisions. After four years, that application is still pending.  The court said in part:

The IRS correctly concluded that, until plaintiff obtains a CSA exemption, its promotion and use of Ayahuasca remains illegal under federal law, and plaintiff is neither organized nor operated exclusively for public purposes. As a result, plaintiff is not entitled to an exemption from income tax under section 501(c)(3).

Plaintiff had argued that the Supreme Court's decision in the O'Centro case entitled it to a tax exemption.  The court responded:

[T]he holding in O Centro stands only for the principle that obtaining a CSA exception for religious use of Ayahuasca is possible, if such use is in fact a sincere religious exercise. The flaw in plaintiff’s reliance on O Centro here, is that plaintiff has still not obtained that CSA exception—and whether plaintiff’s showing made to the DEA is sufficient to qualify for this exemption remains an open question that is not before this Court. O Centro simply does not stand for plaintiff’s asserted holding, that all Ayahuasca use is necessarily religious, and that case certainly does not establish that all organizations making use of Ayahuasca are entitled to an exemption from income tax, which is the issue pending here.

The court also held that the church lacks standing to challenge the denial of non-profit status as a violation of RFRA because "plaintiff’s inability to use Ayahuasca does not stem from the IRS Determination Letter, but rather from the CSA’s ban on using DMT, and plaintiff’s lack of a CSA exemption thus far."

North Dakota Enacts A State RFRA

Last week, North Dakota Governor Dout Burgum signed House Bill No. 1136 (full text), North Dakota's version of the Religious Freedom Restoration Act. The new law provides in part:

... [A]state or local government entity may not:

a. Substantially burden a person's exercise of religion unless applying the burden to that person's exercise of religion in a particular situation is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling government interest;

b. Treat religious conduct more restrictively than any secular conduct of reasonably comparable risk; or

c. Treat religious conduct more restrictively than any comparable secular conduct because of alleged economic need or benefit.

ADF issued a press release announcing the signing of the bill. [Thanks to Greg Chaufen for the lead.]

Maker of Religious-Themed Military Dog Tags Can Move Ahead with 1st Amendment Claims Against DoD

In Shields of Strength v. U.S. Department of Defense, (ED TX, March 31, 2023), a Texas federal district court allowed a company that manufactures military personnel "dog tags" to move ahead with certain of its 1st Amendment claims against the military that sought to prevent the company from producing dog tags with Biblical or other religious references near symbols or phrases that the military had registered for trademark protection. DoD regulations provide:

DoD marks may not be licensed for any purpose intended to promote ideological movements, sociopolitical change, religious beliefs (including non-belief), specific interpretations of morality, or legislative/statutory change.

 The court said in part:

If the military does not have meaningful conditions and controls on the licensing of its trademarks, the military may be deemed to have opened a limited public forum for private expression using those marks.... If a public forum were opened, disallowing views that promote religious beliefs would seem a prima facie case of unconstitutional viewpoint discrimination. So defendants’ motion to dismiss the viewpoint-discrimination claims ... is denied....

For purposes of the religious-exercise claims ... the court assumes that any marks not licensed for use on Shields’ dog tags are valid trademarks, used in a way likely to confuse consumers, without a defense to liability (other than religious-exercise rights). The question under Counts 2 and 8 is whether the military’s failure to license that usage violates the Free Exercise Clause or RFRA. 

The answer turns on the same categorization called for by the free-speech challenge.... If the military’s grants of trademark licenses are government speech, then any burden from the military’s licensing choice is justified by the compelling governmental interest that animates trademark law generally and, specifically, a trademark owner’s liberty to decide and control its own vision of a mark’s reputation....

On the other hand, if the military’s program here is so unrestrictive that the military has surrendered any licensing voice—making its licensing program a limited public forum for private speech using the marks—that deficiency also negates the compelling public interest for denying Shields’ ability to use the marks.... 

However, the court refused to issue a preliminary injunction because it found no substantial likelihood of success on the claims.

3rd Circuit: Qualified Immunity Can Be Asserted in RFRA Case, But Not in This One

In Mack v. Yost, (3rd Cir., March 21, 2023), the U.S. 3rd Circuit Court of Appeals in a 2-1 decision held that qualified immunity can be asserted as a defense by prison officers in a suit against them under RFRA, but also concluded that at the summary judgment stage here defendants had not shown facts demonstrating that they are entitled to the defense. The majority summarized its 48-page opinion in part as follows:

When Mack was incarcerated, he worked at the prison commissary, where two supervising prison guards singled him out for harassment because of his Muslim faith. Most significantly, the evidence as it now stands shows that, when Mack would go to the back of the commissary to pray during shift breaks, the guards would follow him and deliberately interfere with his prayers by making noises, talking loudly, and kicking boxes. Fearing retaliation if he continued to pray at work, Mack eventually stopped doing so, but the guards nevertheless engineered his termination from his commissary job. He then sued.

... The guards ... moved for summary judgment ... on the theory that they are entitled to qualified immunity.... [T]he District Court sided with them. It held that ... no clearly established caselaw would have put a reasonable person on notice of the illegality of the guards’ actions. Mack has again appealed.

We agree with Mack that granting summary judgment was wrong. While ... qualified immunity can be asserted as a defense under RFRA, the officers have not – at least on this record – met their burden of establishing that defense.... [E]vidence of the RFRA violation here involved significant, deliberate, repeated, and unjustified interference by prison officials with Mack’s ability to pray as required by his faith. Based on those facts ..., the officers are not entitled to qualified immunity. But if different facts come out at trial, the officers may again raise qualified immunity....

Judge Hardiman dissented, saying in part:

Even accepting the majority’s articulation of the right at issue, I would not find it clearly established here.

The cases Mack cites, as the majority notes, are not factually analogous. And the majority identifies no other precedent—from our Court or elsewhere, before or after RFRA was enacted—sufficiently similar to deny Defendants qualified immunity.

West Virginia Legislature Passes Religious Freedom Act

The West Virginia legislature yesterday gave final passage to the Equal Protection for Religion Act (full text). The bill bars state action that substantially burdens a person's exercise of religion unless there is a compelling governmental interest and the least restrictive means are used. It also prohibits treating religious conduct more restrictively than other conduct of reasonably comparable risk, or more restrictively than comparable conduct for economic reasons. It provides for injunctive or declaratory relief and recovery of costs and attorneys' fees. Among other things, the bill does not "protect actions or decisions to end the life of any human being, born or unborn..." The bill which now goes to Governor Jim Justice for his signature passed the Senate in accelerated fashion after it voted 30-3 to suspend its rules that normally require three readings. AP and the legislature's Wrap Up blog report on the bill's passage.

FBI Agents Have Qualified Immunity in Suit by Muslims Placed on No-Fly List for Refusing to Spy on Their Communities

On remand from the U.S. Supreme Court (see prior posting), a New York federal district court in Tanvir v. Tanzin, (SD NY, Feb. 24, 2023), held that FBI agents who placed or kept plaintiffs on the federal no-fly list in retaliation for their refusal to act as informants on their Muslim communities have qualified immunity in a suit for damages under RFRA. Plaintiffs contend that gathering information on fellow Muslims contravenes their religious beliefs.  The court concluded that FBI agents had not violated a clearly established law, saying in part:

The Court is sympathetic to Plaintiffs, who claim that, despite never posing a threat to aviation security, they were, for years, unable to visit ailing loved ones outside of the United States, burdened financially with the loss of job opportunities which required them to travel, and repeatedly forced to endure the basic indignity of being denied boarding passes for flights to which they had legitimately purchased tickets. Accepting their allegations as true, Plaintiffs were subjected to this treatment by way of the FBI’s misuse of the No Fly List simply because they were Muslim, and because they refused to spy on other members of their faith. 

Nevertheless—and notwithstanding varied criticisms of the doctrine of qualified immunity, the Court is required to apply the law faithfully to the issues before it....

At the time of Defendants’ alleged activity, no federal court had addressed claims—let alone actually held—that law enforcement pressuring individuals to inform on members of their religious communities through retaliatory or coercive means substantially burdened their religious exercise in violation of RFRA. Plaintiffs point to four cases in an attempt to make out their claim of clearly established law at the time of the alleged violations, but each of those cases are plainly distinguishable.....

National Archives Sued for Requiring Visitors to Remove Pro-Life Apparel

Suit was filed this week in the D.C. federal district court by three anti-abortion proponents who visited the National Archives on the day of the March for Life in Washington. The complaint (full text) in Tamara R. v. National Archives and Records Administration, (D DC, filed 2/8/2023) alleges in part:

5. While in the National Archives, Plaintiffs were subject to a pattern of ongoing misconduct by federal government officials, specifically National Archives security officers, Defendants John Does and Jane Doe, who targeted Plaintiffs and intentionally chilled their religious speech and expression by requiring Plaintiffs to remove or cover their attire because of their pro-life messages.

6. This case seeks to protect and vindicate Plaintiffs’ fundamental and statutory rights under federal law, the First and Fifth Amendments to the United States Constitution, and the Religious Freedom Restoration Act (“RFRA”).

American Center for Law and Justice issued a press release announcing the filing of the lawsuit. A similar suit was filed against the National Air & Space Museum earlier this week. (See prior posting.)

Catholic School Students Sue Air & Space Museum for Barring Pro-Life Apparel

Suit was filed this week in the D.C. federal district court by or on behalf of eleven South Carolina Catholic high school students against the National Air and Space Museum and seven members of its staff alleging that the students were required to remove their hats which carried a pro-life message during their visit to the Museum. The students visited the Museum after participating in the D.C. March for Life event. The complaint (full text) in Kristi L. v. National Air and Space Museum, (D DC, filed 2/6/2023), alleging violations of the 1st and 5th Amendments and RFRA, states in part:

Plaintiffs were subjected to a pattern of ongoing misconduct ... which included targeting, harassment, discrimination and, ultimately, eviction from NASM simply because they wore blue hats with the inscription, “Rosary Pro-Life.”...

Defendants’ restriction on Plaintiffs’ speech is content and viewpoint-based and demonstrates a concerted effort to single out, embarrass, intimidate, exclude, and ultimately silence the message expressed by Plaintiffs in wearing their “Rosary Pro-Life” hat....

The disparate treatment of Plaintiffs based on their viewpoints was a result of a discriminatory purpose on the part of Defendants...

Defendants’ restriction on Plaintiffs’ expressive religious activity as set forth in this Complaint imposes a substantial burden on Plaintiffs’ religious exercise in violation of RFRA....

American Center for Law & Justice issued a press release announcing the filing of the lawsuit.

Federal Reserve Bank Can Be Sued Under Both Title VII and RFRA

In Gardner-Alfred v. Federal Reserve Bank of New York, (SD NY, Jan. 18, 2023), a New York federal district court held that two former employees of the Federal Reserve Bank of New York may bring Title VII as well as RFRA and Free Exercise claims against FRBNY for denying them a religious exemption from the Bank's COVID vaccine mandate. It distinguished cases holding that other governmental entities can be sued only under Title VII. It held however that New York City and New York state anti-discrimination laws are pre-empted by federal law giving NYFRB the power to dismiss employees.

DC Circuit: Marines Must Accommodate Sikh Recruits in Boot Camp

In Singh v. Berger, (DC Cir., Dec. 23, 2022), the D.C. Circuit Court of Appeals granted a preliminary injunction to two Sikh Marine Corps recruits who seek an accommodation to wear unshorn hair, beards and certain articles of faith during boot camp training. The court, relying on RFRA, said in part:

So the Plaintiffs’ likelihood of success comes down to whether the Marine Corps has demonstrated a compelling interest accomplished by the least restrictive means in refusing to accommodate their faith for the thirteen weeks of boot camp. The Marine Corps has failed to meet its burden on both fronts....

[T]he Marine Corps argues that excepting the Plaintiffs from the repeated ritual of shaving their faces and heads alongside fellow recruits, and permitting them to wear a head covering, will impede its compelling interest in forging unit cohesion and a uniform mindset during boot camp....

... Colonel Jeppe’s claimed compelling need for inflexible grooming uniformity does not stand up against the “system of exceptions” to boot camp grooming rules that the Corps has already created and that seriously “undermine[]” the Corps’ contention that it “can brook no departures” for Plaintiffs....

To sum up, Plaintiffs have demonstrated not just a likely, but an overwhelming, prospect of success on the merits of their RFRA claim. At a general level, the Government has certainly articulated a compelling national security interest in training Marine Corps recruits to strip away their individuality and adopt a team-oriented mindset committed to the military mission and defense of the Nation. But RFRA requires more than pointing to interests at such a broad level.... The Marine Corps has to show that its substantial burdening of these Plaintiffs’ religion furthers that compelling interest by the least restrictive means. That is where the Marine Corps has come up very short.... 

Becket issued a press release announcing the decision.

Army Enjoined from Disciplining Plaintiffs Who Refuse COVID Vaccine on Religious Grounds

A Texas federal district court this week issued a preliminary injunction preventing the military from taking disciplinary action against ten members of the Army who object on religious grounds to complying with the Army's COVID vaccine mandate.  However, the injunction does not prevent the military from taking their vaccination status into account in making deployment, assignment and other operational decisions.  In the case, Schelske v. Austin, (ND TX, Dec. 21, 2022), the court said in part:

The Army has a valid interest in vaccinating its soldiers, and it has made the COVID-19 vaccine mandatory. But its soldiers have a right to religious freedom, which in this case includes a sincere religious objection to the COVID-19 vaccine. Which side must yield? The answer lies in the Religious Freedom Restoration Act, which applies to the military: The Army must accommodate religious freedom unless it can prove that the vaccine mandate furthers a compelling interest in the least restrictive means. The Army attempts to meet that burden by pointing to the need for military readiness and the health of its force. But ... these generalized interests are insufficient. Rather, the Army must justify denying these particular plaintiffs’ religious exemptions under current conditions. Here, with 97% of active forces vaccinated and operating successfully in a post-pandemic world, the Army falls short of its burden....

The parties’ dispute centers on whether the Army can prove that application of the vaccine mandate to these plaintiffs furthers a compelling government interest through the least restrictive means possible. At every turn, however, the evidence before the Court weighs against the Army and in favor of the plaintiffs....

Finally, the Court recognizes that much of this litigation may soon be moot. Congress recently passed the National Defense Authorization Act for Fiscal Year 2023.... If signed by the President into law, the NDAA would require the Secretary of Defense to “rescind the mandate that members of the Armed Forces be vaccinated against COVID-19” within 30 days of enactment.... Despite these developments, the Army has refused to commit to halting separation proceedings against the plaintiffs by way of any agreement that this Court can enforce.

8th Circuit Affirms RFRA Rights of Catholic Health Care Organizations to Refuse Gender Transition Services

In Religious Sisters of Mercy v. Becerra, (8th Cir., Dec. 9, 2022), the U.S. 8th Circuit Court of Appeals affirmed a district court decision that enjoined the federal government from requiring various Catholic health care organizations to perform or provide insurance coverage for gender transition procedures. The district court concluded that plaintiffs' rights under the Religious Freedom Restoration Act were violated by the requirements imposed by the government's interpretation of the Affordable Care Act and Title VII.  On appeal, the government raised only jurisdictional challenges-- standing, ripeness and lack of irreparable harm.  The 8th Circuit rejected the government's challenges, except as to standing of one organizational plaintiff.

Indiana Court Enjoins Abortion Restrictions as Violating State's RFRA

In Anonymous Plaintiff 1 v. Individual Members of the Medical Licensing Board of Indiana, (IN Super. Ct., Dec. 2, 2022), an Indiana state trial court preliminarily enjoined the state from enforcing Indiana's law restricting abortions against plaintiffs whose religious beliefs permit or require abortions in situations not allowed under Indiana law.  Plaintiffs were Jewish and Muslim, and one plaintiff of no specific denomination. The court, invoking Indiana's Religious Freedom Restoration Act, said in part:

26. This Court finds that the Plaintiffs practices regarding abortion are religious in nature: they have established that, under circumstances that would be prohibited by S.E.A. 1, their religious beliefs would compel them to have abortions....

43. The undisputed evidence establishes that the Plaintiffs do not share the State’s belief that life begins at fertilization or that abortion constitutes the intentional taking of a human life. To the contrary, they have different religious beliefs about when life begins, and they believe that under certain circumstances not permitted by S.E.A. 1, they would be required to receive abortions. Under the law, the Court finds these are sincere religious beliefs.

44. The State has not asserted a compelling interest in refusing to provide an exception to the Plaintiffs if the law were otherwise enforceable. Indiana has no interest in violating the sincere religious beliefs and exercise of the Plaintiffs....

49. The Plaintiffs argue that S.E.A. 1 is not narrowly tailored and is underinclusive, in that it provides exceptions for some abortions—though not religious exceptions—in circumstances that directly contravene the State’s purported interest. 

50. The State argues that abortion, regardless of gestational age of the zygote, embryo, or fetus, is the killing of an innocent human being, and its interest is in preventing that killing....

51. However, the statute explicitly allows abortions in circumstances that the State acknowledges constitute the “killing” of an “innocent human being”: for example, where the pregnancy is the result of rape or incest and where the fetus is viable but will not live beyond three months after birth.

A different state trial court has previously enjoined enforcement of the Act on state constitutional grounds. (See prior posting.)

Indianapolis Star reports on the decision. [Thanks to Daniel Conkle via Religionlaw for the lead.]

6th Circuit Affirms Preliminary Injunction Protecting Air Force Personnel Who Have Religious Objections to COVID Vaccine

 In Doster v. Kendall, (6th Cir., Nov. 29, 2022), the U.S. 6th Circuit Court of Appeals affirmed a district court's grant of a class-wide preliminary injunction barring the Air Force from disciplining Air Force personnel who have sought religious exemptions from the military's COVID vaccine mandate. The injunction however did not interfere with the Air Force’s operational decisions over the Plaintiffs’ duties. The 6th Circuit concluded that plaintiffs' RFRA claim was likely to succeed on the merits, saying in part:

Some 10,000 members with a wide array of duties have requested religious exemptions from this mandate. The Air Force has granted only about 135 of these requests.... Yet it has granted thousands of other exemptions for medical reasons (such as a pregnancy or allergy) or administrative reasons (such as a looming retirement)....

Under RFRA, the Air Force wrongly relied on its “broadly formulated” reasons for the vaccine mandate to deny specific exemptions to the Plaintiffs, especially since it has granted secular exemptions to their colleagues.... The Air Force’s treatment of their exemption requests also reveals common questions for the class: Does the Air Force have a uniform policy of relying on its generalized interests in the vaccine mandate to deny religious exemptions regardless of a service member’s individual circumstances? And does it have a discriminatory policy of broadly denying religious exemptions but broadly granting secular ones? A district court can answer these questions in a “yes” or “no” fashion for the entire class.....

In the abstract, the Air Force may well have a compelling interest in requiring its 501,000 members to get vaccinated. It has also largely achieved this general interest, as evidenced by its ability to vaccinate over 97% of its force.... Under RFRA, however, the Air Force must show that it has a compelling interest in refusing a “specific” exemption to, say, Lieutenant Doster or Airman Colantonio.... To succeed ..., the Air Force must identify the duties of each Plaintiff and offer evidence as to why it has a compelling interest in forcing someone with those duties to take the vaccine or face a sanction....

If the Air Force can permanently retain those who cannot deploy because of their religious objections to a war, it must explain why it cannot permanently retain those who cannot deploy because of their religious objections to a vaccine.

(See prior related posting.) Courthouse News Service reports on the decision.

Disciplinary Warning to Justice of the Peace Who Would Not Perform Same-Sex Weddings Is Upheld

In Hensley v. State Commission on Judicial Conduct, (TX App., Nov. 3, 2022), a Texas state appellate court affirmed the dismissal of a suit challenging a public warning issued by the Commission on Judicial Conduct that concluded plaintiff, a justice of the peace, has cast doubt on her ability to act impartially toward LGBTQ litigants. Plaintiff refused to perform same-sex weddings, while continuing to perform weddings for heterosexual couples. Instead of appealing the Commission's public warning to a special court of review, as provided by Texas statutes, plaintiff filed suit in state trial court arguing that the Commission had violated her rights under the Texas Religious Freedom Act and that her conduct had not violated the Code of Judicial Conduct.  She sought damages and additional declaratory relief. The appeals court said in part:

The trial court correctly dismissed this impermissible collateral attack on the Commission’s order....

Because the evidence establishes that the Commission has in fact not threatened further disciplinary action against Hensley, she has failed to carry her burden of demonstrating that the TRFRA waives the Commission’s immunity for her claim that threats of further discipline by the Commission have burdened her free exercise of religion.

Justice Goodwin filed a concurring opinion saying in part:

I would decide Hensley’s TRFRA claims on the ground that she did not comply with its notice provisions.... I do not agree with the Court’s analysis..., particularly the Court making an implicit finding by the Commission that its investigation and disciplinary action did not substantially violate Hensley’s free exercise of religion and that this implied finding foreclosed any future claims.

KWTX News reports on the decision.