Religious School Asserts Ecclesiastical Abstention Defense

As reported by Houston Chronicle, an Episcopal elementary school in Galveston, Texas has asserted an ecclesiastical abstention defense to a lawsuit filed by the mother of a student alleging an inadequate response by the school to bullying and racial harassment of her sixth-grade son.  Plaintiff says that 3 of her son's classmates gave her son a piece of paper folded to resemble a KKK hood, and bullied them in other ways. The school only required the students to send apology notes, and gave a one day suspension to one of the students.  The defendants' motion to dismiss (full text) in Beans v. Trinity Episcopal School, (TX Dist. Ct., filed 8/1/2017) argues:

As a religious institution, Trinity has a constitutionally-protected freedom to make decisions regarding the discipline of its students without judicial interference. The courts cannot second guess those decisions, even in the guise of purportedly "secular" causes of action arising from tort principles. Plaintiffs' claims ask the Court to intrude upon Trinity's internal affairs and governance relating to discipline, investigation, and standards of conduct—which is precisely what the ecclesiastical abstention doctrine was designed to prevent.

Texas Supreme Court Keeps Life In Challenge To City's Same-Sex Couple Benefits

In a complex opinion, the Texas Supreme court has given two Houston taxpayer-voters another chance to challenge the legality of the city's extending spousal benefits to same-sex married couples.  At issue in Pidgeon v. Turner, (TX Sup. Ct., June 30, 2017), is the instructions on remand given by a state appeals court in reversing a trial court's temporary injunction against the city's action.  Plaintiffs' suit is based on the contention that Texas' Defense of Marriage Act still has residual effect and that the state appeals court incorrectly indicated to the trial court that the 5th Circuit's DeLeon decision invalidating the state's DOMA is binding on it.  The Texas Supreme Court agreed that the appeals court was incorrect in telling the trial court to proceed "consistent with" DeLeon:

We agree with Pidgeon that De Leon does not bind the trial court in this case and the court of appeals should not have instructed the trial court to conduct further proceedings “consistent with” De Leon. Penrod Drilling, 868 S.W.2d at 296.17 That does not mean, however, that the trial court should not consider De Leon when resolving Pidgeon’s claims. Fifth Circuit decisions, particularly those regarding federal constitutional questions, can certainly be helpful and may be persuasive for Texas trial courts. Moreover, De Leon could potentially affect the relief the trial court might provide on remand, since De Leon has enjoined the Governor from enforcing the Texas DOMAs and the State of Texas is thus providing benefits to state employees’ same-sex spouses. The trial court should certainly proceed on remand “in light of” De Leon, but it is not required to proceed “consistent with” it.

The Texas Supreme Court refused to reach another argument by plaintiffs that they have standing to seek a clawback of payments the city made to same-sex couples before the U.S. Supreme Court's Obergefell decision.  Plaintiff's cited the U.S. Supreme Court's Hobby Lobby decision, contending that as taxpayers they have been injured by the payments "because they are devout Christians who have been compelled by the mayor’s unlawful edict to subsidize homosexual relationships that they regard as immoral and sinful."  NPR reports on the decision.

Suit Fights Deportation Using RFRA

KHOU News reports on a lawsuit filed Monday in a Texas federal district court which argues that deporting an El Salvadoran who has been in the United States illegally for over a decade would violate the Religious Freedom Restoration Act. Juan Rodriguez's wife and three daughters are all U.S. citizens.  The lawsuit alleges that Rodriguez's Seventh-Day Adventist beliefs requiring the family to stay together would be violated by his deportation.

Texas Legislature Passes Conscience Protections For Adoption, Foster Care, Counseling Services

The Texas legislature yesterday gave final passage to HB 3859 (full text), a bill that prohibits any governmental agency from discriminating or taking adverse action against a child welfare service provider that refuses to provide adoption, foster care, counseling or other services that conflict with the agency's religious beliefs.  The bill, which now goes to the governor for signature, also protects agencies that place children with providers who will give the children a religious education. Where an agency refuses to serve a client, it must refer the client to, or to a listing of, other agencies that can serve them.  AP, reporting on the bill, says:

The private foster care and adoption organizations, which are paid by the state to place children with families, make up about 25 percent of the agencies working in Texas. Those groups say they face a threat of lawsuits for exercising their religious beliefs if they don’t get specific state legal protection.  Many Texas adoption agencies admit they don’t work with adoptive parents who are single, gay or non-Christian, and the bill could keep them from being sued.

[Thanks to Scott Mange for the lead.]

Texas Governor Signs Bill Protecting Sermons From Subpoena By Government

On Friday, Texas Governor Greg Abbott signed SB24 (full text).  The new law protects sermons delivered by religious leaders from being subpoenaed by any governmental unit in litigation or in administrative proceedings.  The legislation is a reaction to controversy over the city of Houston's attempt in 2014 to subpoena sermons of 5 members of the clergy as part of the city's defense in a lawsuit challenging its rejection of petitions seeking repeal of the city's Equal Rights Ordinance. (See prior posting.)  Houston Chronicle reports that the governor and lieutenant governor on Sunday preached sermons at a Houston area church before a second signing of the bill.

Civil Rights Suit By Student Alarm-Clock Maker Dismissed

In Mohamed v. Irving Independent School District, (ND TX, May 18, 2017), a Texas federal district court dismissed the civil rights claims brought on behalf of an African-American Muslim high school student who was arrested and suspended from school for 3 days when a home-made clock he brought to school was mistaken by his teachers for a bomb. (See prior posting.) The incident received national attention. Plaintiff (the student's father) alleged violations of the Equal Protection clause, the 4th and 5th Amendments, and Title VI of the 1964 Civil Rights Act. WDBO News reports on the decision.

Suit Over Ownership of Astronauts' Bibles Is Settled

AP reports that last week, ahead of a hearing that had been scheduled by an Oklahoma state trial court for today, the Texas Department of Aging and Disability Services withdrew its claim of ownership to ten microfilm Bibles that Apollo 14 astronauts took with them into space in 1971.  The 6-year legal battle over ownership ended as the court last Friday awarded ownership to Tulsa author and businesswoman Carol Mersch who said the postage-stamp size Bibles had been given to her by NASA Chaplain John M. Stout while she was writing a book about the chaplain's work. Texas had claimed the Bibles should go to Stout's son who became a ward of the state in his later years.  Mersch says she will comply with Chaplain Stout's wishes and donate some of the Bibles to museums or seminaries around the world.

Woman Sues Claiming Her Firing Was For Not Being Christian Enough

Suit was filed earlier this week in a Texas trial court by a managerial employee of Gulf Winds International who alleges that she was fired because she was not Christian enough.  The complaint (full text) in Thomson v. Gulf Winds International, Inc., (TX  Dist. Ct., filed 4/18/2017) alleges that the company "discriminated and retaliated against Plaintiff based on religion and because of her opposition of forced religious material in the work place in violation of the Texas Commission on Human rights Act...." Courthouse News Service reports on the lawsuit.

Judge Sued Over Opening Prayers In Courtroom

Freedom From Religion Foundation filed suit last week in a Texas federal district court against a Montgomery County, Texas Justice of the Peace who opens his court sessions with a chaplain-led prayer.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Mack, (SD TX., filed 3/21/2017), contends that the practice violates the Establishment Clause. FFRF issued a press release announcing the filing of the lawsuit. (See prior related posting.)

Texas High School Rules Force Transgender Male Wrestler To Compete In Girl's League

In Texas, high school athletics is governed by the University Interscholastic League (UIL). Rules of the UIL require student-athletes to compete as the gender listed on their birth certificate.  Another rule specifically prohibits boys from wrestling girls. AP reported this week on Mack Beggs, a transgender high schooler who is transitioning from female to male who, under these rules, is required to compete as a female. Beggs won the high school regional wrestling competition after her opponent forfeited rather than wrestle Beggs. Beggs is taking testosterone as part of her transitioning. Earlier this month, the parent of another wrestler filed a lawsuit against the UIL seeking to have Beggs disqualified for using steroids, saying that allowing Beggs to wrestle girls creates a risk of bodily harm.  The Texas Education Code allows steroid use when administered by a medical practitioner for a valid medical purpose.

Removal of Secular "Nativity Scene" May Be Viewpoint Discrimination

In Freedom From Religion Foundation v. Abbott, (WD TX, Dec. 20, 2016), a Texas federal district court allowed plaintiff to move ahead with one aspect of its free speech claim in its challenge to the Texas governor's order removing from the Texas State Capitol exhibition area plaintiff's Bill of Rights "Nativity Scene." The display was accompanied by a banner that focuses on the Winter Solstice and separation of church and state.  The Texas State Preservation Board originally approved the display, but Texas Gov. Greg Abbott who is executive director of the Board instructed that it be taken down.  He contended that the display did not meet the requirement of promoting a "public purpose." The court held:

In this case, a genuine issue of material fact exists as to whether Defendants' decision to remove FFRF's exhibit constitutes viewpoint discrimination.

Plaintiff's other 1st and 14th Amendment challenges were dismissed. Dallas News reports on the decision.

Court Allows Peanuts Christmas Poster To Go Back Up, With Minor Change

As previously reported, on Tuesday of this week the Kileen, Texas school board voted to support a middle school principal who told a staff member to take down a 6-foot tall Peanuts character Christmas poster because it featured a Biblical quotation, or else to remove the religious language from it. Texas Values blog reports on the quick reaction.  On Wednesday, a lawsuit was filed on behalf of Dedra Shannon, the school clinic aide who had put up the poster.  The complaint (full text) in Shannon v. Kileen Independent School District, (TX Dist. Ct., filed 12/14/2016), contends that the censoring of the poster violates Shannon's free speech and free exercise rights. Yesterday, Texas Attorney General Ken Paxton moved to intervene on Shannon's side, arguing that "Texas must ensure that schools respect the ability of religious people to express freely their ideas and not misapply establishment principles." (Full text of Plea in Intervention.) Yesterday afternoon the court issued a temporary restraining order allowing Ms. Shannon to again put up her Christmas poster, but required an additional line on it stating: "Ms. Shannon’s Christmas Message."

Church Lacks Standing In Recall Petition Counterclaim

In City of El Paso, Texas v. Tom Brown Ministries, (TX App., Dec. 7, 2016), a Texas state appeals court dismissed on standing grounds a counterclaim by a church that had been involved in recall efforts against the mayor of El Paso who supported re-establishing domestic partnership benefits for city employees. In this phase of the long-running case, at issue was the Church's counterclaim against the city and the Mayor in his official capacity contending that they violated the Church's constitutional right to circulate recall petitions when they brought suit claiming that the Church's recall activities violated election laws. The court concluded in part:

[T]he City never took any unconstitutional actions against Appellees and never applied any unconstitutional policies against them. Rather, it was Cook [the Mayor], in his individual capacity, who sought redress for private injuries arising from Appellees’ alleged violations of the Election Code in circulating the recall petitions, and it was this Court that directed the City to decertify the recall petitions and to cancel the recall election.... The City never engaged in any past unconstitutional conduct toward Appellees, and there is no basis for any fear the City will unlawfully enforce the Election Code against Appellees in the future.

Questions On Abortion and Gay Marriage Violated Rights of Constable Candidate

In Lloyd v. Birkman, (WD TX, Dec. 2, 2016), a Texas federal district court held that members of the Williamson County (TX) Commissioners' Court violated the equal protection rights of plaintiff when, in an interview for appointment as interim County Constable, they asked him his views on same-sex marriage, abortion and religious affiliation.  The Commissioners had argued that the purpose of their questions was to determine whether the appointee was likely to be electable for a full term to the position in the next popular election. KXAN News reports on the decision.

Satanic Temple Will Challenge Texas' New Fetal Remains Rules

As reported yesterday by Jezebel, the Satanic Temple says that it plans to challenge Texas' new rules requiring burial or cremation of fetal remains as a violation of its members' rights under the Texas Religious Freedom Restoration Act.  A spokesman for Satanic Temple said:

Texas health officials are baldly imposing the view that the fetal tissue is elevated to personhood—a religious opinion that conflicts with our own. If Texas is going to treat the disposal of fetal tissue differently from the disposal of any other biological material, in contradiction to our own religious beliefs, they need to present a compelling state interest for doing so. Of course, there is no such state interest, and it’s perfectly clear the demand for fetal tissue burial is a punitive measure imposed by sadistic theocrats. It’s clear these officials deem harassment an acceptable form of pushing their misguided religious agendas.

The organization plans to file for an injunction as soon as the state attempts to apply the new rules to one of its members. [Thanks to Scott Mange for the lead.]

Final Texas Rules On Disposal of Fetal Remains Are Adopted

Texas Tribune reports that yesterday the Texas Health and Human Services Commission filed final rules on disposition of fetal tissue with the Secretary of State's office.  Under the rules, which take effect December 19, hospitals, abortion clinics and other health care facilities may not dispose of fetal remains in sanitary landfills and instead are required to cremate or bury all remains regardless of the period of gestation. Amendments to the proposed rules that appear in the final rules clarify that the requirements do not apply to miscarriages or abortions that occur at home. Also, to protect privacy, birth or death certificates will not be required before disposal. Health care facilities, not patients, will be responsible for the costs of burial or cremation. [Thanks to Scott Mange for the lead.]

Court Again Refuses To Narrow Injunction Against Title IX Transgender Guidelines

In State of Texas v. United States, (ND TX, Nov. 20, 2016), a Texas federal district court denied defendants' request for a partial stay of the court's previously issued nationwide preliminary injunction against enforcement of Department of Education Title IX Guidelines barring discrimination by schools on the basis of gender identity. This is the second time the court has refused to narrow its preliminary injunction. Defendants had sought removal of non-plaintiff states from the reach of the injunction. The court said in part:

The Court remains convinced that Plaintiffs, not Defendants, have shown a great likelihood of success on the merits of their claims....   The federal statutes prohibiting discrimination on the basis of “sex”—the scope and meaning of which Defendants claim now includes gender identity—were promulgated more than forty years ago.... The federal government did not articulate, much less enforce, the Guidelines’ interpretation of sex as including gender identity for nearly fifty years after Title VII was passed in 1964 and the Court views this delay as strong evidence that Defendants will suffer no irreparable injury if a stay is denied and enforcement of the Guidelines delayed until their legality is established.

Liberty Counsel issued a press release announcing the decision.

Texas Anti-SLAPP Law Does Not Protect Free Exercise Rights

In Davis v. Mount Gilead Baptist Church, (TX App., Aug. 25, 2016), a Texas state appellate court held that Texas' anti-SLAPP statute-- designed to prevent the use of frivolous suits to chill speech rights-- only applies to suits filed in response to defendant's exercise of free speech, right of petition or right of association.  It does not apply to suits that respond to free exercise of religion.

Suit Challenges New HHS Rules On Discrimination Against Transgender Individuals

A lawsuit was filed in a Texas federal court yesterday by a religiously-affiliated hospital network, two medical associations and the states of Texas, Wisconsin, Nebraska, Kentucky and Kansas challenging new rules (full text) adopted by the Department of Health and Human Services in May barring discrimination on the basis of gender identity in the delivery of medical services by, among others, health facilities receiving federal financial assistance.  The 79-page complaint (full text) in Franciscan Alliance, Inc. v. Burwell, (ND TX, filed 8/23/2016), contends that the new regulations infringe free speech, free exercise and due process rights of plaintiffs, as well as their rights under the Religious Freedom Restoration Act. It also contends that the regulations infringe states' rights in various ways.  The complaint focuses particularly on requirements relating to provision of gender transition procedures, saying in part:

On pain of significant financial liability, the Regulation forces doctors to perform controversial and sometimes harmful medical procedures ostensibly designed to permanently change an individual’s sex—including the sex of children. Under the new Regulation, a doctor must perform these procedures even when they are contrary to the doctor’s medical judgment and could result in significant, long-term medical harm. Thus, the Regulation represents a radical invasion of the federal bureaucracy into a doctor’s medical judgment....

The Regulation not only forces healthcare professionals to violate their medical judgment, it also forces them to violate their deeply held religious beliefs. Plaintiffs include the Christian Medical & Dental Associations ... and Franciscan Alliance, a network of religious hospitals founded by the Sisters of St. Francis of Perpetual Adoration. These religious organizations are deeply committed to the dignity of every human person, and their doctors care for everyone with joy and compassion. They eagerly provide comprehensive care to society’s most vulnerable populations, but their religious beliefs will not allow them to perform medical transition procedures that can be deeply harmful to their patients.....

Texas Attorney General Ken Paxton issued a press release announcing the filing of the lawsuit, and saying in part:

This is the thirteenth lawsuit I have been forced to bring against the Obama Administration’s continued threats on constitutional rights of Texans. The federal government has no right to force Texans to pay for medical procedures designed to change a person’s sex.

Becket Fund which represents the medical association plaintiffs also issued a press release.  Texas Tribune, reporting on the lawsuit, says that the case has been assigned to the same judge who earlier this week blocked federal Guidelines on transgender students' rights under Title IX from going into effect. (See prior posting.)

Texas AG Opinion OK's Courtroom Chaplains

Texas Attorney General Ken Paxton yesterday issued Attorney General Opinion No. KP-0109 (Aug. 15, 2016), responding to three Establishment Clause concerns.  The Opinion first concludes:

Courts do not violate the Establishment Clause by opening court proceedings with a statement such as, "God save the State of Texas and this Honorable Court."

It then moves to questions about the more controversial practice of a Texas justice of the peace who is also the county coroner.  As previously reported the judge created a volunteer chaplaincy program to help grieving family, friends and witnesses at death scenes to which the coroner is called.  To recognize these volunteer chaplains, they are also invited to give a brief prayer to open justice of the peace court proceedings. The state's Commission on Judicial Conduct had urged an end to these practices.  However, yesterday's AG opinion concluded that each of these practices is constitutional. A press release from First Liberty Institute discusses the AG opinion.