5th Circuit Upholds Qualified Immunity Defense Of Prison Officials Who Confiscated Hijab

In Taylor v. Nelson, (5th Cir., Aug. 2, 2022), the U.S. 5th Circuit Court of Appeals held that Texas prison authorities who confiscated a female inmate's hijab that exceeded the size permitted by prison policies can claim qualified immunity in a suit for damages against them. The court held that plaintiff failed to identify a clearly established right that officials violated and reasonable officials would not have understood that enforcing the policy on size of hijabs was unconstitutional.

Texas Sues Feds Over Abortion Guidance Given To Hospital Emergency Rooms

On Thursday, the state of Texas filed suit against the Biden administration challenging HHS's guidance to hospitals that the Emergency Medical Treatment & Labor Act requires hospital emergency rooms to perform an abortions when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition. The complaint (full text) in State of Texas v. Becerra, (ND TX, filed 7/14/2022) alleges in part:

The Biden Administration’s response to Dobbs v. Jackson Women’s Health Org.... which ended the terrible regime of Roe v. Wade, is to attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic.

The suit contends that the guidance exceeds statutory authority and violates various constitutional provisions. The Texas attorney general issued a press release announcing the filing of the lawsuit.

Texas Must Grant Execution Chamber Religious Accommodations

 AP reports that on July 5 the federal district court for the Southern District of Texas in Gonzales v. Collier issued a temporary injunction barring the execution of death row inmate Ramiro Gonzales unless authorities grant all of his requested religious accommodations. According to AP:

Gonzales, 39, has asked that when he is executed, his spiritual adviser be allowed in the death chamber so she can pray aloud, hold his hand and place her other hand on his chest.

“...The specific physical contact I have requested is vitally important to me as I am making my spiritual transition into the paradise of God,” Gonzales said in court documents filed last month.

... [O]fficials have argued allowing the hand holding could be a security risk as the adviser would be too close to the IV lines that deliver the lethal injection and the adviser would be in a location that would block the view of authorities and witnesses.

Court Enforcement Of Divorce Agreement Involving Acceptance of "Gett" Creates No Free Exercise Problem

In Mishler v. Mishler, (TX App., June 30, 2022), a Texas state appellate court held that there is no state or federal free exercise problem with a divorce decree, based on the parties prior agreement, that certain property would be delivered by the husband to the wife only upon the wife's acceptance of a "Gett" (Jewish divorce document that the wife must accept in order for the divorce to be valid under Jewish religious law).

Prosecutor's Ethical Objection To Death Penalty Was Not Reason To Withdraw Execution Warrant

Texas Tribune reports that yesterday a Texas state trial court judge rejected a request submitted jointly by the prosecutor and the defense attorney to withdraw a warrant setting the execution date for convicted murderer John Ramirez for October 5. The request to withdraw the execution date came two days after the court set it. District Attorney Mark Gonzalez said that he is ethically opposed to the death penalty and did not want the death penalty imposed on any prisoner while he is in office. An assistant district attorney had filed the request to set the execution date without conferring with Gonzalez. An appeal is planned. Ramirez was the petitioner in a RLUIPA case decided by the U.S. Supreme Court last year holding that he was entitled to a preliminary injunction barring Texas from proceeding with his execution without permitting his pastor, during the execution, to lay hands on the him and audibly pray with him. (See prior posting.)

5th Circuit Hears Oral Arguments In Texas Courtroom Prayer Case

On Tuesday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Freedom From Religion Foundation v. Mack. (Audio of full oral arguments). In the case, a Texas federal district court held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain violates the Establishment Clause. (See prior posting.)  Last July, the 5th Circuit granted a stay pending appeal of the Texas district court's declaratory judgment order. (See prior posting.)

Ban On Proselytizing At City Farmers Market Violates Free Speech Rights

In Denton v. City of El Paso, (WD TX, March 29, 2022), a Texas federal magistrate judge concluded that plaintiff's free speech rights were violated by a policy of the city whose Museums and Cultural Affairs Department refused to allow Plaintiff to proselytize at the Downtown Art and Farmers Market.  The city's policy barred First Amendment expression and religious proselytizing within and during the Market. The magistrate judge recommended granting of nominal damages and injunctive relief.

Supreme Court Says Pastor Should Be Allowed To Pray Audibly And Lay Hands On Prisoner Being Executed

In Ramirez v. Collier, (Sup.Ct., March 24, 2022), the U.S. Supreme court in n 8-1 decision held that a death row prisoner was likely to succeed in his RLUIPA lawsuit challenging limits on his pastor's activities in the execution chamber.  The Court held that petitioner is entitled to a preliminary injunction barring Texas from proceeding with his execution without permitting his pastor, during the execution, to lay hands on the prisoner and audibly pray with him. Chief Justice Roberts majority opinion said in part:

First, prison officials say that absolute silence is necessary in the execution chamber so they can monitor the inmate’s condition through a microphone suspended overhead. They say that audible prayer might impede their ability to hear subtle signs of trouble or prove distracting during an emergency.... But respondents fail to show that a categorical ban on all audible prayer is the least restrictive means of furthering their compelling interests....

Second, prison officials say that if they allow spiritual advisors to pray aloud during executions, the opportunity “could be exploited to make a statement to the witnesses or officials, rather than the inmate.” ... But there is no indication in the record that Pastor Moore would cause the sorts of disruptions that respondents fear...

Respondents’ categorical ban on religious touch in the execution chamber fares no better.... Under Texas’s current protocol, spiritual advisors stand just three feet from the gurney in the execution chamber.... A security escort is posted nearby, ready to intervene if anything goes awry.... We do not see how letting the spiritual advisor stand slightly closer, reach out his arm, and touch a part of the prisoner’s body well away from the site of any IV line would meaningfully increase risk.

Justices Sotomayor and Kavanaugh each filed a concurring opinion.  Justice Thomas filed a 23-page dissent, saying in part:

Petitioner John Henry Ramirez stabbed Pablo Castro 29 times during a robbery that netted $1.25. Castro bled to death in a parking lot. Since that day, Ramirez has manufactured more than a decade of delay to evade the capital sentence lawfully imposed by the State of Texas. This Court now affords yet another chance for him to delay his execution. Because I think Ramirez’s claims either do not warrant equitable relief or are procedurally barred, I respectfully dissent.

CNN reports on the decision.

Idaho Governor Signs A Heartbeat Abortion Ban

Yesterday, Idaho Governor Brad Little signed Senate Bill 1309, the Fetal Heartbeat Preborn Child Protection Act (full text). While news media report that the law is modeled on Texas SB8, there are differences between the two laws. Like the Texas law, SB 1309 prohibits abortions after a fetal heartbeat can be detected-- generally 6 weeks, and provides for private enforcement. However the Idaho law has an exception for rape or incest (if reported to law enforcement authorities) or for medical emergencies. The Texas law only excepts medical emergency. Under the Idaho law, a private enforcement action may be brought only by the father, grandparent, sibling, aunt or uncle of the pre-born child. They may sue for actual damages plus statutory damages of $20,000. Under the Texas law, anyone (other than a state or local official) may sue. Under the Idaho law, criminal penalties and license suspensions for health care professionals who violate the law are triggered "thirty (30) days following the issuance of the judgment in any United States appellate court case in which the appellate court upholds a restriction or ban on abortion for a pre-born child because a detectable heartbeat is present on the grounds that such restriction or ban does not violate the United States constitution."

Defamation Suit Dismissed On Ecclesiastical Abstention Doctrine

In Heras v. Diocese of Corpus Christie, (TX App, March 10, 2022), a Texas state appellate court affirmed the dismissal on ecclesiastical abstention grounds of defamation suits by two priests who were included on the diocese's list of clergy who have been credibly accused of sexually abusing a minor. The court said in part:

[W]e hold appellants’ defamation suits are barred by the ecclesiastical abstention doctrine because the substance and nature of the appellants’ claims against appellees are inextricably intertwined with appellees’ internal directive for openness and transparency.... More specifically, appellants’ claims are inextricably intertwined with appellees’ decision to release the list incompliance with an internal church directive....

Texas Supreme Court Effectively Ends Challenge To Heartbeat Abortion Ban

The Texas Supreme Court, answering a question of state law certified to it by the U.S. 5th Circuit Court of Appeals, has effectively prevented abortion providers from challenging Texas "heartbeat" abortion law.  In Whole Woman's Health v. Jackson, (TX Sup.Ct., March 11, 2022), the court concluded:

Texas law does not grant the state-agency executives named as defendants in this case any authority to enforce the Act’s requirements, either directly or indirectly.

CNN reports on the decision. 

Legal Responses Continue To Texas Ban On Gender Transition For Minors

 As previously reported, last month Texas Attorney General Ken Paxton in an Attorney General Opinion concluded that a number of procedures used to treat gender dysphoria, i.e. assist transgender individuals in their gender transitions, can amount to child abuse under Texas law. Building on this opinion, Governor Greg Abbott sent a letter to the head of the Texas Department of Family and Protective Services, instructing them to promptly investigate cases covered by the Attorney General's Opinion. As those investigations began, numerous legal developments followed.

On March 2, the Office for Civil Rights of the U.S. Department of Health and Human Services issued a Guidance on Gender Affirming Care which read in part:

Section 1557 protects the right of individuals to access the health programs and activities of recipients of federal financial assistance without facing discrimination on the basis of sex, which includes discrimination on the basis of gender identity.... [I]f a parent and their child visit a doctor for a consultation regarding or to receive gender affirming care, and the doctor or other staff at the facility reports the parent to state authorities for seeking such care, that reporting may constitute violation of Section 1557 if the doctor or facility receives federal financial assistance.

In response, the state of Texas filed an amended complaint (full text) in its pending lawsuit against the federal government (State of Texas v. EEOC, ND TX filed 3/9/2022)  challenging this Guidance.

Meanwhile, in Jane Doe v. Abbott, (TX Dist. Ct., March 2, 2022), a Texas state trial court granted a temporary restraining order providing: "Defendants are immediately enjoined and restrained from taking any actions against Plaintiffs based solely on the Governor’s letter and DFPS statement ... as well as Attorney General Paxton’s Opinion...." The state Court of Appeals in Abbott v. Jane Doe, (TX App., March 9, 2022), held that the TRO was not an appealable order. Texas Tribune reports on some of these developments.

Court Issues TRO Preventing Enforcement Of Texas Governor's Order On Gender Transition Treatment For Minors

As reported in an ACLU press release, earlier this week a Texas state trial court in Jane Doe v. Abbott, (TX Dist. Ct., March 2, 2022), issued a temporary restraining order barring enforcement against the named plaintiffs of Texas Gov. Greg Abbott's order to investigate for child abuse parents who facilitate gender reassignment treatment for minors. (See prior posting.) The court said in part:

[T]he Court finds Plaintiffs will suffer irreparable injury unless Defendants are immediately restrained.... Jane Doe has been placed on administrative leave at work and is at risk of losing her job and ... Jane, John and Mary Doe face the imminent and ongoing deprivation of their constitutional rights, the potential loss of necessary medical care, and the stigma attached to being the subject of an unfounded child abuse investigation.... [I]f placed on the Child Abuse Registry, Jane Doe could lose the ability to practice her profession and both Jane and John Doe could lose their ability to work with minors and volunteer in their community.

The Court further finds that Plaintiff Mooney could face civil suit by patients for failing to treat them in accordance with professional standards and loss of licensure for failing to follow her professional ethics if she complies with Defendants’ orders and actions. If she does not comply with Defendants’ orders, Dr. Mooney could face immediate criminal prosecution, as set forth in the Governor’s letter.

The court set a temporary injunction hearing for March 11.

Texas AG and Governor Say Gender Transition Of Minors Can Constitute Child Abuse

On Feb. 18, Texas Attorney General Ken Paxton in Attorney General Opinion No. KP-401 concluded that a number of procedures used to treat gender dysphoria, i.e. assist transgender individuals in their gender transitions, can amount to child abuse under Texas law.  The 13-page Opinion states in part:

To the extent that these procedures and treatments could result in sterilization, they would deprive the child of the fundamental right to procreate, which supports a finding of child abuse under the Family Code....

Where, as a factual matter, one of these procedures or treatments cannot result in sterilization, a court would have to go through the process of evaluating, on a case-by-case basis, whether that procedure violates any of the provisions of the Family Code—and whether the procedure or treatment poses a similar threat or likelihood of substantial physical and emotional harm....

To the extent the specific procedures about which you ask may cause mental or emotional injury or physical injury within these provisions, they constitute abuse.

Further, the Legislature has explicitly defined “female genital mutilation” and made such act a state jail felony.... While the Legislature has not elsewhere defined the phrase “genital mutilation”, nor specifically for males of any age, the Legislature’s criminalization of a particular type of genital mutilation supports an argument that analogous procedures that include genital mutilation—potentially including gender reassignment surgeries—could constitute “abuse” under the Family Code’s broad and nonexhaustive examples of child abuse or neglect.

On Feb. 22, Texas Governor Greg Abbott sent a letter (full text) to the head of the Texas Department of Family and Protective Services, instructing them to promptly investigate cases covered by the Attorney General's Opinion.  the Governor said in part:

Texas law imposes reporting requirements upon all licensed professionals who have direct contact with children who may be subject to such abuse, including doctors, nurses, and teachers, and provides criminal penalties for failure to report such child abuse.... There are similar reporting requirements and criminal penalties for members of the general public....

Texas law also imposes a duty on DFPS to investigate the parents of a child who is subjected to these abusive gender-transitioning procedures, and on other state agencies to investigate licensed facilities where such procedures may occur.

Washington Post and Axios report on these developments.

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.