Part Of Texas Anti-BDS Law Held Unconstitutional

In A & R Engineering and Testing, Inc. v. City of Houston, (SD TX, Jan. 28, 2022), a Texas federal district court held unconstitutional a portion of the Texas statute requiring companies entering contracts with governmental entities to certify that they do not, and will not during the term of the contract, boycott Israel. The court said in part:

[Plaintiff] denies any anti-Jewish motivation and testified that his desire to boycott has nothing to do with Jewish people (American or Israeli) but is focused on the acts of the Israeli government.... Nevertheless, the legislation at issue did not originate in an historical vacuum.... [A]nyone with a basic knowledge of modern history knows that one of the first anti-Jewish acts taken by the Nazis after they took power in Germany was the boycott of Jewish businesses in 1933.

The court found a portion of the law unobjectionable:

[T]he court agrees that the mere refusal to engage in a commercial/ economic relationship with Israel or entities doing business in Israel is not "inherently expressive" and therefore does not find shelter under the protections of the First Amendment.

However the court went on to find a First Amendment problem with the provision in the statute that requires businesses also to refrain from "otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations" with Israel or Israeli entities.  The court said in part:

[A]ctions intended to penalize or inflict economic harm on Israel could include conduct protected by the First Amendment, such as giving speeches, nonviolent picketing outside Israeli businesses, posting flyers, encouraging others to refuse to deal with Israel or Israeli entities, or sponsoring a protest which encourages local businesses to terminate business activities with Israel.

The court issued a preliminary injunction limited to this plaintiff, refusing a state-wide injunction or one covering other businesses.  Arab News reports on the decision.

Supreme Court Assures Further Delay In Challenge To Texas Heartbeat Abortion Law

Yesterday, in In re Whole Woman's Health, (Sup.Ct., Jan. 20, 2022),  the U.S. Supreme Court in a brief Order refused to issue a writ of mandamus requested by Texas abortion providers who are seeking a speedy adjudication of the constitutionality of Texas SB8, the state's "heartbeat" abortion law that essentially bans almost all abortions after six weeks of pregnancy.  Courts, including the Supreme Court, have refused to enjoin enforcement of the Texas law while its constitutionality is being litigated. Earlier this week, the 5th Circuit assured further delay by certifying a state law issue in the case to the Texas Supreme Court instead of remanding the case to the Texas federal district court for it to act on the constitutional question. (See prior posting.) Yesterday, Justice Breyer filed a dissenting opinion that was joined by Justices Sotomayor and Kagan, and Justice Sotomayor filed a dissenting opinion joined by Justices Breyer and Kagan, objecting to the Court's denial of mandamus.  Justice Sotomayor said in part:

Today’s decision shows that any hope that Whole Woman’s Health II might protect the Constitution’s guarantees in this case was illusory. As it turns out, Texas did not even have to amend its law to sidestep the minimal relief this Court left available. Instead, Texas wagered that this Court did not mean what little it said in Whole Woman’s Health II or, at least, that this Court would not stand behind those words, meager as they were. That bet has paid off.... [This Court] accepts yet another dilatory tactic by Texas.... 

This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies. I will not stand by silently as a State continues to nullify this constitutional guarantee.

Texas Tribune reports on the decision.

5th Circuit Certifies Texas Heartbeat Abortion Case To Texas Supreme Court

In Whole Woman's Health v. Jackson, (5th Cir., Jan. 17, 2022), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, certified to the Texas Supreme Court the question of whether under Texas law, any state officials have authority to take disciplinary action against doctors who violate Texas' Heartbeat Act.  The Act bans abortions if the physician has detected a fetal heartbeat-- usually at around 6 weeks of a pregnancy. The case is on remand from the U.S. Supreme Court (see prior posting), which has previously refused to enjoin enforcement of the Texas law while appeals are under way. (See prior posting.) The ability of Texas state officials to enforce the law in some way was crucial to the Supreme Court's decision that abortion providers could sue the state in a challenge to the law. (See prior posting.)  Judge Higginson dissented from the 5th Circuit's decision to certify the question to the Texas Supreme Court, saying in part:

By granting the defendants’ certification motion, we contravene the Supreme Court’s mandate, effectively telling the Court that its opinion was advisory.

Yahoo News reports on the 5th Circuit's decision.

Ecclesiastical Abstention Doctrine Bars Adjudication Of Some Claims In Dispute Between Church Factions

In In re Thomas, (TX App., Jan.14, 2022), Jan. 14, 2022), a Texas state appellate court ruled on the extent to which the ecclesiastical abstention doctrine bars various claims in a dispute between two factions in a Baptist church over who should be its pastor and which faction controls its large bank account. The court held that the ecclesiastical abstention doctrine bars civil courts from ruling on the deacons' authority to terminate the church's pastor and on whether one group is obligated to relinquish control over the church's financial records and bank account. However, the ecclesiastical abstention doctrine did not necessarily bar adjudication of claims for breach of fiduciary duty, conversion of church funds and access to the church's books, records and bank statements.

Maneuvering Continues In Challenge To Texas Heartbeat Abortion Law

Procedural maneuvering continues in the challenge by abortion providers to the Texas "heartbeat" abortion law. The courts have kept the Texas law in effect while the maneuvering goes on, with Texas seeking to delay proceedings as long as possible and plaintiff abortion providers seeking to speed them forward.  

The U.S. Supreme Court held that the law could be challenged despite the state's attempt to draft the law to prevent anyone from being able to do so because there were still some state officials involved in enforcing the law. The Supreme Court then remanded the case to the 5th Circuit (which had previously allowed the law to remain in effect), instead of to the district court (which had previously enjoined the law while appeals were pending). In the 5th Circuit, Texas is seeking to have the question of whether state officials are in fact still involved in enforcing the law certified to the Texas Supreme Court for resolution, while the abortion providers challenging the law contend that the U.S. Supreme Court has already decided that issue. The 5th Circuit has scheduled oral arguments for Friday on the appropriateness of certifying the case, as well as on other jurisdictional questions.

 So yesterday, in In re Whole Woman's Health, (U.S. Sup. Ct., filed 1/3/2022), the plaintiffs in the case filed a petition (full text) with the U.S. Supreme Court asking it to issue a writ of mandamus directing the Court of Appeals to remand the case immediately to the district court. Texas Tribune reports on these developments.

Church Dispute Dismissed On Ecclesiastical Abstention Grounds

In Iglesia Pentecostal Filadelfia, Inc. v. Rodriguez, (TX App., Dec. 29, 2021), a Texas state appellate court affirmed a trial court's dismissal of an internal church dispute on ecclesiastical abstention grounds. Jose  Rodriguez, Jr. took over as pastor of the church when his mother passed away. Plaintiffs sued on behalf of the church challenging Rodriguez's actions in that role. The court said in part:

Here, the trial court found that neither side complied with the Church’s organizational and governing documents, including the Bylaws, a decision we find support for in the record .... Therefore, we find that a determination of the Church’s claims at issue would impermissibly embroil the trial court in a religious controversary to include choosing its church leaders....

Further, the Church’s second declaration is clearly a matter of church authority or governance as opposed to substantively and effectively a property dispute as it asks the trial court to declare that “[Jose Jr.] has no right or authority to act on the behalf of [the Church] and its congregation.”

Moreover, to develop the Church’s conversion claim would impermissibly force the trial court to decide the Church’s corporate governance because to do so would require it to determine which board to inquire of for the reason behind the alleged unlawful use of funds.

More Delays Likely Ahead In Challenge To Texas "Heartbeat" Abortion Law

The procedural complexities in Whole Woman's Health v. Jackson-- the challenge by abortion providers to Texas' "heartbeat" abortion ban-- have increased as Justice Gorsuch yesterday granted challenger's request to issue a certified copy of the judgment immediately rather than in the normal 25-day time frame.  However Gorsuch remanded the case to the 5th Circuit, rather than to the district court. National Law Journal explains the implications of this action:

In its opposition, Texas Solicitor General Judd Stone argued that the justices’ holding that the four licensing officials could be sued “turned on its tentative resolution of a question of Texas Law, and ‘Texas courts and not [the Supreme Court] are the final arbiters of the meaning of state statutory directions.’” A remand to the district court, he argued, would prevent the four officials from asking the appellate court to certify the state law question of the officials’ enforcement authority to the Texas Supreme Court.

If Texas does indeed ask the appellate court to certify that question to the Texas Supreme Court, resolution of the constitutional challenge to the law will be delayed indefinitely.

5th Circuit Denies En Banc Review In Teacher Qualified Immunity Case

In Oliver v. Arnold, (5th Cir., Dec. 15, 2021), the U.S. 5th Circuit Court of Appeals by a vote of 7-10 denied an en banc rehearing in a suit against a Texas high school teacher by a former student who refused on religious grounds to transcribe the Pledge of Allegiance as part of an assignment. The student alleges that she was retaliated against by the teacher.  The district court refused to grant summary judgment on the teacher's qualified immunity defense and a 3-judge appellate panel, in a 2-1 decision, agreed. (See prior posting). Judge Ho filed a 19-page opinion concurring the denial of an en banc  rehearing of the panel's decision. Three dissenting opinions spanning 15 pages were also filed. Among the issues raised by these are whether the teacher's motive in giving the assignment is relevant and whether the Supreme Court's flag salute cases apply to written school assignments in addition to ceremonies. 

Texas State Court Holds That SB8-- Heartbeat Abortion Law-- Is Unconstitutional

In Van Stean v. Texas Right To Life, (TX Dist. Ct., Dec. 9, 2021), a Texas state trial court issued a declaratory judgment concluding that SB8, the Texas "heartbeat" abortion law, is unconstitutional under the Texas state constitution as well as the 14th Amendment. In a 48-page opinion, it concluded:

A. Standing for uninjured person. SB 8's grant of standing to "any person" to be awarded "no less than $10,000" and a mandatory injunction without showing harm to himself, taken from a person who has not harmed him, violates the Texas Constitution's "open courts" provision and is unconstitutional.

B. Punishment without due process. SB 8's mandate that trial courts "shall" award "no less than $10,000" to an unharmed claimant from a defendant who did him no harm is punishment and not compensation that will deprive persons of property without due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution.

C. Delegation of executive power to private persons. SB 8's grant of enforcement power to "any person" is an unlawful delegation of power to private persons that violates the Texas Constitution's separation of powers provision and is unconstitutional.

Volokh Conspiracy reports on the decision.

Supreme Court Says Texas Heartbeat Abortion Law Can Be Challenged In Court

The U.S. Supreme Court today in Whole Woman's Health v. Jackson, (Sup. Ct., Dec. 10, 2021), held that abortion providers may sue one set of defendants in their challenge to Texas "heartbeat" abortion law. Eight of the Justices (all but Justice Thomas) concluded that Texas still involved one set of state officials in enforcement of the heartbeat abortion ban. Plaintiffs may challenge the statute by suing the state officials who have disciplinary authority over medical licensees who violate the ban. Thus Texas failed to completely insulate the law from pre-enforcement challenge. 

Justice Thomas filed a dissenting opinion arguing in part:

The principal opinion then proposes that the Texas Medical Board may enforce S. B. 8 under §164.055 of the Texas Occupations Code. Thus, on that view, S. B. 8 permits the Medical Board to discipline physicians for violating the statute despite the Act’s command that “the requirements of this subchapter shall be enforced exclusively through . . . private civil actions,” “[n]otwithstanding . . . any other law.” .... By its terms, S. B. 8’s saving clause preserves enforcement only of laws that “regulate or prohibit abortion.” 

Chief Justice Roberts, joined by Justices Breyer, Sotomayor and Kagan concluded that the Attorney General and court clerks should also be able to be sued in a challenge to the law. His opinion says in part:

The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison....  Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”... The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

Justice Sotomayor filed a dissenting opinion, joined by Justices Breyer and Kagan, saying in part:

My disagreement with the Court runs far deeper than a quibble over how many defendants these petitioners may sue. The dispute is over whether States may nullify federal constitutional rights by employing schemes like the one at hand. The Court indicates that they can, so long as they write their laws to more thoroughly disclaim all enforcement by state officials, including licensing officials. This choice to shrink from Texas’ challenge to federal supremacy will have far-reaching repercussions....

This is a brazen challenge to our federal structure. It echoes the philosophy of John C. Calhoun, a virulent defender of the slaveholding South who insisted that States had the right to “veto” or “nullif[y]” any federal law with which they disagreed....

What are federal courts to do if, for example, a State effectively prohibits worship by a disfavored religious minority through crushing “private” litigation burdens amplified by skewed court procedures, but does a better job than Texas of disclaiming all enforcement by state officials? Perhaps nothing at all, says this Court....

Houston Public Media reports on the decision.

Then in the other challenge to the Texas law, United States v. Texas, (Sup. Ct., Dec. 10, 2021), the Court, over the dissent of Justice Sotomayor, dismissed the writ of certiorari as improvidently granted.

HHS Rescinds Trump Era Religious Exemptions For Child Welfare Agencies In Three States

Yesterday, the Department of Health and Human Services announced that it is rescinding waivers of non-discrimination requirements issued during the Trump Administration to South Carolina, Texas and Michigan, along with certain child welfare agencies in those states. The waivers allowed faith-based foster care placement agencies to receive federal funds even though they select foster parents on the basis of religion. (See prior posting.) In its release yesterday, HHS summarized the background for its action:

Through these waivers, States and child welfare agencies – including States and organizations that did not make such requests - were granted exemptions from program nondiscrimination requirements in a rule that was not in effect. In taking today's actions, HHS is reestablishing its long-standing Department practice of evaluation of religious exemptions and modifications of program requirements on a case-by-case basis, as needed, and as is required by law—which was unprecedently changed in 2017 by the previous Administration. Today, HHS reaffirms its important commitment to core American values:  HHS will not condone the blanket use of religious exemptions against any person or blank checks to allow discrimination against any persons, importantly including LGBTQ+ persons in taxpayer-funded programs.

Magistrate Says Texas Pension Participant Lacks Standing To Challenge Israel Boycott Law

In Abdullah v. Paxton, (WD TX, Nov. 8, 2021), a Texas federal magistrate judge recommended dismissing on standing and sovereign immunity grounds a suit by a participant in the Texas Employee Retirement System (ERS) challenging a Texas law that requires ERS to divest fund assets from companies that boycott Israel if divestment can be carried out without harming the value of fund. Plaintiff claims that the divestment requirement violates his free speech, Establishment Clause and due process rights. He also asserts a dormant commerce clause claim. The court said in part:

[A] Declaratory Judgment that Section 808 is unconstitutional and enjoinment of its use would have no effect on Abdullah’s financial interests or his ultimate annuity payments. Abdullah has failed to allege a harm to him that would be redressed by a finding that Section 808 violated his rights. He therefore does not have standing to bring this claim.

Texas Voters Approve Measure To Ban Limits On Religious Services

In reaction to limits imposed on religious gatherings during the COVID pandemic, Texas voters yesterday approved Proposition 3, a state constitutional amendment which provides:

This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.

The vote was 62.42% in favor, 37.58% opposed. More details at Ballotpedia.

Religious Exemptions From Title VII Allow LGBTQ Employment Discrimination

In Bear Creek Bible Church v. EEOC, (ND TX, Oct. 31, 2021), a Christian church and a Christian-owned business filed a class action in a Texas federal district court seeking religious exemptions from provisions of Title VII of the Civil Rights Act of 1964. Under the U.S. Supreme Court's Bostock case, Title VII's ban on sex discrimination prohibits employment discrimination based on sexual orientation or gender identity. The court, in a 70-page opinion, held that as to churches and similar religious employers, the religious organization exemption in Title VII allows more than just religious discrimination:

[A] religious employer is not liable under Title VII when it refuses to employ an individual because of sexual orientation or gender expression, based on religious observance, practice, or belief.

As to businesses that assert a religious objection to homosexual and transgender behavior, the court held that Title VII substantially burdens their religious exercise in conducting business, in violation of the Religious Freedom Restoration Act as well as of the 1st Amendment's Free Exercise and Freedom of Association protections.

The court went on to rule on several other questions which the Supreme Court's Bostock decision arguably left unresolved. It concluded: 

• Title VII bars discrimination against bisexuals, just as it does against gays, lesbians and transgender individuals. 
• Policies that require employees to refrain from certain sexual activities, including sodomy, premarital sex, adultery, and other sexual activity outside of marriage between a man and a woman are permitted because they do not apply exclusively to bar homosexual conduct.
• Sex-specific dress codes based on biological sex are permitted because they apply evenly to those who identify with their biological sex and to transgender individuals.
• Policies that prohibit employees from obtaining genital modification surgery or hormone treatment for gender dysphoria violate Title VII.
• Title VII allows employers to have policies that promote privacy, such as requiring the use of separate bathrooms on the basis of biological sex.

Bloomberg Law reports on the decision.

Supreme Court Will Hear Arguments Today In Texas "Heartbeat" Abortion Ban

The U.S. Supreme Court will hear arguments this morning in two cases challenging the Texas "heartbeat" abortion ban. The question the Supreme Court agreed to consider is not the ultimate constitutionality of the ban, but whether Texas has effectively insulated the law from pre-enforcement challenge.  In Whole Woman’s Health v. Jackson, the question presented by the petition for certiorari is:

whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.

In United States v. Texas, the Supreme Court's grant of certiorari was limited to the question:

May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.

The SCOTUS blog case pages for the cases (1, 2 ) have links to all the filings by the parties, as well as to the numerous amicus briefs that have been filed. SCOTUS blog has an extensive preview of the arguments. The arguments will be streamed live by C-SPAN.  At 10:00 AM (EST) arguments in Whole Woman's Health can be heard here. At 11:00 AM (EST) arguments in U.S. v. Texas can be  heard here. I will update this post to furnish links to the transcripts and recordings of the arguments when those become available later today.

UPDATE: Here are links to the transcript and audio of arguments in Whole Woman's Health. And here are the links in United States v. Texas.

Texas Governor Signs Ban On Transgender Girls Participating On Female Sports Teams

On Monday, Texas Governor Gregg Abbott signed HB 25 (full text) which requires transgender students on interscholastic high school athletic teams to compete only on teams that conform to their biological sex as specified on their original birth certificate. The only exception is for female students competing on male teams when no female team is available. The law states that its purpose is:

to further the governmental interest of ensuring that sufficient interscholastic athletic opportunities remain available for girls to remedy past discrimination on the basis of sex.

KRIS TV reports on the new legislation. [Thanks to Scott Mange for the lead.]

Christian Student Group Challenges University's Non-Discrimination Policy

Suit was filed this week in a Texas federal district court by a Christian student organization at the University of Houston challenging the University's non-discrimination policy that led to a denial of recognition of the group as a Registered Student Organization. The complaint (full text) in Ratio Christi at the University of Houston- Clear Lake v. Khator, (SD TX, filed 10/25/2021), contends that the University violated the 1st and 14th Amendments by:

a. Denying Ratio Christi registered status because it requires that its officers, who have religious responsibilities, share the organization’s religious beliefs and support its purposes;

b. Conditioning a student organization’s access to campus resources and student services fee funding on a system where UHCL officials have unbridled discretion... [and [c]] must consider multiple content- and viewpoint-based factors; and

d. Compelling Plaintiffs to pay student service fees into a system that is viewpoint discriminatory.

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

UPDATE: ADF announced on Oct. 29 that the University has now recognized Ratio Christi as a Registered Student Organization.

Supreme Court Grants Extra Rapid Review In Texas Abortion Cases, But Postpones Granting Interim Stay

The U.S. Supreme Court today took action to decide quickly whether Texas has effectively shielded its new "heartbeat" abortion law (S.B. 8) from review.  In two cases in which emergency relief was sought, the Court granted review ahead of any decision by the Court of Appeals. In Whole Woman's Health v. Jackson, it granted a petition for certiorari before judgment. (Order List). In the case, the Supreme Court previously refused to prevent Texas' S.B.8 from continuing in effect while its constitutionality is being litigated. (See prior posting.) Also today, the Court acted in United States v. Texas, the Justice Department's challenge to the Texas law.  The Court granted certiorari before judgment and "deferred pending oral argument" the government's motion to vacate the 5th Circuit's stay of the district court's injunction barring enforcement of S.B.8. The grant of review was limited to:

May the United States bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit S.B. 8 from being enforced.

This parallels the question presented by the Petition for Certiorari in Whole Woman's Health:

[W]hether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.

In both cases, the Court ordered that petitioners' briefs (as well as any amicus briefs) be filed electronically by Oct. 27, and reply briefs be filed by Oct. 29. Oral argument in both cases is set for Nov. 1.

Justice Sotomayor filed a dissent to the Court's refusal in United States v. Texas to grant an immediate stay, pending the appellate process, of enforcement of the law, saying in part:

[T]he Court’s failure to issue an administrative stay of the Fifth Circuit’s order pending its decision on this application will have profound and immediate consequences. By delaying any remedy, the Court enables continued and irreparable harm to women seeking abortion care and providers of such care in Texas—exactly as S. B. 8’s architects intended... 

 CNN reports on the Court's action, as does the New York Times.

Justice Department Asks Supreme Court To Reinstate District Court's Injunction Against Texas Abortion Law

In United States v. Texas, the Justice Department today filed in the Supreme Court an Application (full text) to vacate the 5th Circuit's stay of a preliminary injunction that had been granted by a Texas federal district court. The application on the Court's Shadow docket was filed with Justice Alito who is assigned to take emergency filings from the 5th Circuit. At issue is the Justice Department's challenge to the Texas "heartbeat" abortion law. The Justice Department adds that the Court may treat this as a petition for a grant of certiorari before judgment. The Application says in part:

The question now is whether Texas’s nullification of this Court’s precedents should be allowed to continue while the courts consider the United States’ suit. As the district court recognized, it should not: The United States is likely to succeed on the merits because S.B. 8 is clearly unconstitutional and because the United States has authority to seek equitable relief to protect its sovereign interests -- including its interest in the supremacy of federal law and the availability of the mechanisms for judicial review that Congress and this Court have long deemed essential to protect constitutional rights.... 

Again, the Fifth Circuit disputed none of this. Instead, the divided panel’s one-paragraph order stayed the preliminary injunction solely for “the reasons stated in” two decisions addressing a prior challenge to S.B. 8.... But those reasons do not apply to this very different suit. Sovereign immunity forced the private plaintiffs in Whole Woman’s Health to sue individual state officers, and this Court and the Fifth Circuit questioned whether those officers were proper defendants. This suit does not raise those questions because it was brought against the State of Texas itself, and the State has no immunity from suits by the United States. The Fifth Circuit ignored that distinction, which refutes the court’s only justification for the stay.

Justice Alito ordered Texas to file a response by noon on Thursday.  Twenty-three states and the District of Columbia filed a joint amicus brief (full text) in support of the Justice Department.

CNN reports on these developments.

5th Circuit Reinstates Texas "Heartbeat" Abortion Ban While Appeal Is Pending

By a 2-1 vote tonight, in United States v. State of Texas, (5th Cir., Oct. 14, 2021), the U.S. 5th Circuit Court of Appeals in a one-page Order allowed Texas' restrictive "heartbeat" abortion law to go back into effect while an expedited appeal of the district court's decision enjoining it is heard.