Texas Legislature Approves Chaplains in Public Schools

 The Texas legislature today gave final passage to SB763 (full text) which allows public schools to employ or accept as volunteers chaplains to provide support for students.  Chaplains need not be certified as teachers.  The only requirements are that they be subject to a criminal history review and that they have not been convicted or placed on deferred adjudication community supervision for an offense for which sex-offender registration is required. Texas Tribune reports on the passage of the bill, saying in part:

The bill was delayed last week after Texas House members sought an amendment that would have required chaplains to have similar accreditation as chaplains who work in prisons or the U.S. military. That amendment was defeated during negotiations between both chambers Friday.

Earlier this month, House Democrats also offered amendments to bar proselytizing or attempts to convert students from one religion to another; to require chaplains to receive consent from the parents of school children; and to make schools provide chaplains from any faith or denomination requested by students. All of those amendments failed.

[Thanks to Thomas Rutledge for the lead.]

Texas Legislature Passes Law Banning Gender-Affirming Health Care for Individuals Under 18

Yesterday the Texas legislature gave final approval to SB 14 (full text) which prohibits the provision of gender transitioning or gender reassignment procedures to individuals under 18 years of age. The bill bars both surgeries and puberty suppression or blockers. The state medical board is required to revoke the license of any physician who violates the treatment ban. Texas Governor Greg Abbott is expected to sign the bill.  AP reports on the bill's passage.

Ex-Husband Brings Wrongful Death Suit Against Wife's Friends Who Supplied Abortion Pills

 A novel wrongful death lawsuit was filed last month in a Texas state trial court by the ex-husband of a woman whose two friends assisted her in obtaining abortion medication.  The complaint (full text) in Silva v. Noyola, (TX Dist. Ct., filed 3/10/2023), alleges in part:

Under the law of Texas, a person who assists a pregnant woman in obtaining a self-managed abortion has committed the crime of murder and can be sued for wrongful death.... In defiance of these laws, defendants Jackie Noyola and Amy Carpenter  assisted Brittni Silva in murdering Ms. Silva’s unborn child with illegally obtained abortion pills. Ms. Noyola and Ms. Carpenter also instructed Ms. Silva to conceal their criminal and murderous actions from plaintiff Marcus A. Silva, the father of the child and the husband of Brittni Silva. Ms. Noyola arranged for the delivery of the illegal drugs from Aracely Garcia, which were used to murder baby Silva in July of 2022. 

Marcus Silva recently learned of the defendants’ involvement in the murder of his child, and he brings suit against them for wrongful death and conspiracy....

The manufacturer of the abortion pills that Brittni used is jointly and severally liable for the wrongful death of baby Silva, and it will be added as a defendant once identified in discovery. The manufacturer of the pills caused the death of baby Silva through a “wrongful act” because it violated 18 U.S.C. §§ 1461–1462, which imposes federal criminal liability on anyone who knowingly sends abortion pills through the mail or through any express company, common carrier, or interactive computer service.

The Intercept reports on the lawsuit.

FDA Seeks Stay Pending Appeal of Order Ending Approval of Mifepristone

The Justice Department on behalf of the U.S. Food and Drug Administration yesterday filed an Emergency Motion for a Stay Pending Appeal (full text of motion) in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, (5th Cir., filed 4/10/2023). The motion seeks a stay while an appeal is heard by the 5th Circuit of a Texas federal district court decision setting aside the 2000 FDA order approving doctors prescribing mifepristone for medical abortions. The FDA argues in part:

The [district] court repeatedly characterizes mifepristone as unsafe. But over the last two decades, the available evidence conclusively demonstrates that mifepristone is safe under the approved conditions of use. More than five million women have used mifepristone to terminate their pregnancies in the United States.... Mifepristone is also approved in dozens of other countries..... The literature reflects “exceedingly rare” rates of serious adverse events.

AP reports on the appeal.

Contradictory Orders From 2 District Court on FDA's Approval of Abortion Pill

In Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration, (ND TX, April 7, 2023), a Texas federal district court held that plaintiffs have a substantial likelihood of success on their claim that the FDA's 2021 action allowing the abortion drug mifepristone to be distributed by mail violates the Comstock Act and thus was also in violation of the Administrative Procedure Act. The court also concluded that the FDA's approval in 2000 of doctors prescribing mifepristone violated the agency's rules for approval of new drugs. The FDA rules (Subpart H) relied upon to approve the drug apply to "new drug products that have been studied for their safety and effectiveness in treating serious or life-threatening illnesses and that provide meaningful therapeutic benefit to patients over existing treatments...."  The court said in part:

[T]o satisfy Subpart H, FDA deemed pregnancy a “serious or life-threatening illness[]” and concluded that mifepristone “provide[d] [a] meaningful therapeutic benefit to patients over existing treatments.” See 21 C.F.R. §§ 314.500; 314.560. FDA was wrong on both counts....

Pregnancy is a normal physiological state most women experience one or more times during their childbearing years — a natural process essential to perpetuating human life. Defendants even admit pregnancy is not an “illness.”...

FDA also exceeded its authority under the second requirement of Subpart H. In addition to treating a serious or life-threatening illness, chemical abortion drugs must also provide a “meaningful therapeutic benefit” to patients over surgical abortion... [T]his cannot be the case because chemical abortion drugs do not treat “serious or life-threatening illnesses” — a prerequisite to reaching the second requirement.... Similarly, chemical abortion drugs cannot be “therapeutic” because the word relates to the treatment or curing of disease.

The court stayed the FDA's approval of mifepristone, but stayed the effectiveness of its order for 7 days so the government can appeal to the U.S. 5th Circuit Court of Appeals for emergency relief.  President Joe Biden issued a statement (full text) criticizing the court's decision and reporting that the Justice Department has already filed an appeal.  Vice President Kamala Harris also issued a statement (full text) criticizing the decision.

Meanwhile, in State of Washington v. U.S. Food & Drug Administration, (ED WA, April 7, 2023), a Washington federal district court issued a preliminary injunction barring the FDA from "altering the status quo and rights as it relates to the availability of Mifepristone" in the 17 states and District of Columbia that are plaintiffs in the case. Plaintiffs are challenging certain requirements for prescribing mifepristone added in 2023.

Seattle Times reports on the decisions.

Presidential Proclamation Protects Sacred 500,000+ Acres in Nevada Under Antiquities Act

Yesterday, President Biden issued A Proclamation on Establishment of the Avi Kwa Ame National Monument (full text). The lengthy Proclamation sets aside 506,814 acres in southern Nevada, and items within that area, as protected under the Antiquities Act. The Proclamation reads in part:

The mountain and the surrounding arid valleys and mountain ranges are among the most sacred places for the Mojave, Chemehuevi, and some Southern Paiute people, and are also significant to other Tribal Nations and Indigenous peoples, including the Cocopah, Halchidhoma, Havasupai, Hopi, Hualapai, Kumeyaay, Maricopa, Pai Pai, Quechan, Yavapai, and Zuni....

For the Tribal Nations that trace their creation to Avi Kwa Ame, the power and significance of this place reside not just in the mountain itself, but radiate across the valleys and mountain ranges of the surrounding desert landscape containing the landmarks and spiritually important locations that are linked by oral traditions and beliefs.  Tribal Nations have shared those traditions and beliefs across many generations through ... origin songs, which are central to Tribal members’ knowledge of the landscape, enabling them to navigate across the diverse terrain, find essential resources, and perform healing, funeral, and other rituals....

This entire landscape is an object of historic and scientific interest requiring protection under ... the "Antiquities Act".... As well as being an object itself, the landscape contains innumerable individual geologic features, archaeological sites, and havens for sensitive and threatened species... and it provides habitat for centuries-old Joshua trees and other objects that are independently of historic or scientific interest and require protection under the Antiquities Act.  Some of the objects are also sacred to Tribal Nations; are sensitive, rare, or vulnerable to vandalism and theft; or are dangerous to visit and, therefore, revealing their specific names and locations could pose a danger to the objects or the public.

The White House also issued a Fact Sheet on the Proclamatioin. In another Proclamation issued yesterday, the President also created the Castner Range National Monument in El Paso, Texas. E&E News reports on these and related Presidential actions.

Texas Supreme Court Dismisses Defamation Actions Brought Against Anti-Abortion Proponents

In Lilith Fund for Reproductive Equity v. Dickson, (TX Sup. Ct., Feb. 24, 2023), the Texas Supreme Court in two companion cases ordered trial courts to dismiss defamation actions brought against Mark Lee Dickson and Right to Life East Texas.  At issue were statements Dickson made on his own and on Right to Life's Facebook pages describing plaintiffs, two pro-choice organizations, as "criminal organizations" and saying that the organizations "exist to help pregnant Mothers murder their babies." The postings were part of a campaign to convince other Texas cities to enact anti-abortion ordinances similar to one enacted in 2019 by Waskom, Texas. The court, concluding that defendants' postings were expressions of opinion rather than fact, and that the suits should be dismissed under the Texas Citizens Participation Act, said in part:

A reasonable person, equipped with the national, historical, and temporal context, and informed by the overall exhortative nature of his posts, could not understand Dickson as conveying false information about the plaintiffs’ underlying conduct, as opposed to his opinion about the legality and morality of that conduct. A reasonable person would understand that Dickson is advancing longstanding arguments against legalized abortion, in the context of an ongoing campaign to criminalize abortion, on public-discourse sites regularly used for such advocacy. 

The plaintiffs argue that opinion based on a false assertion of fact can be actionable defamation. In other words, they argue that Dickson’s advocacy declaring them to be “criminal” goes beyond mere opinion....

Notable is what Dickson does not say in his statements. He does not refer to the Penal Code nor to any Texas criminal law. He does not falsely claim that the plaintiffs have been arrested or prosecuted, or otherwise indicate to the reasonable person that the plaintiffs have been convicted of crimes based on specific conduct. To the contrary, Dickson invokes a moral premise, calling for his readers to change existing law to match that moral premise....

A subjective belief, even when sincerely held by a speaker, is not the standard for determining whether a statement of opinion is defamatory. The touchstone is the reasonable reader’s reception, not the speaker’s self-serving statements of intent or interpretation.

Justice Devine, joined by Justice Blacklock, filed a concurring opinion saying in part:

I join in full the Court’s well-reasoned and thorough opinion. But it is regrettable that it took the courts of our State so long to dismiss the Funds’ obviously meritless lawsuits that were filed to silence their political adversaries. Defamation law must never become a weapon of intimidation against opponents, no matter the party or the side of a political issue.

The Texas Supreme Court has links to the briefs and oral arguments in the case.  Jonathan Turley discusses the decision.

Another Challenge to Texas' Heartbeat Abortion Ban Fails on Standing Grounds

In Davis v. Sharp, (WD TX, Feb. 15, 2023), another attempt to challenge Texas' SB 8, the heartbeat abortion ban enforceable only by private lawsuits, failed on standing grounds.  The suit was brought by Stigma Relief Fund and three of its supporters against defendants who threatened to enforce the law against abortion funds and their associates for aiding illegal abortions. However, because defendants filed statements disclaiming any intention to sue the particular fund and supporters who are plaintiffs in this case, plaintiffs failed to show any injury sufficient to give them standing to sue. Law & Crime reports on the decision.

5th Circuit: FFRF's Suit Against Texas Governor Is Moot

In Freedom From Religion Foundation, Inc. v. Abbott, (5th Cir., Jan.  27, 2023), the U.S. 5th Circuit Court of Appeals held that FFRF's suit against the Governor of Texas for wrongfully removing its display from the state Capitol became moot when the Texas State Preservation Board repealed the rule that had allowed private displays in the Capitol. The court said in part:

It is not seriously disputed that the Foundation’s exhibit satisfied the requirements for display or that the Board’s removal of the exhibit violated the First Amendment restrictions concerning speech communicated in a limited public forum. ...

Because the Foundation’s injury is premised on exclusion from expressing its message in a public forum, and because the public forum no longer exists, the permanent injunctive relief ordered by the district court cannot remain.

The court, however, refused to vacate the trial court's order and declaratory judgment, saying that "they might provide important guidance to future disputes." (See prior related posting.)

Texas Sues HHS To Invalidate Rule on LGBTQ Discrimination by Adoption Agencies

Suit was filed yesterday in a Texas federal district court challenging a rule adopted by the Department of Health and Human Services that prohibits adoption and foster care agencies receiving federal funds from discriminating on the basis of sexual orientation or gender identity.  It also requires them to recognize same-sex marriages.  In 2019, amidst other litigation, the government previously issued a Notice of Nonenforcement of this rule. (See prior posting.) However, that Notice is being challenged in other litigation.  The complaint (full text) in State of Texas v. Becerra, (SD TX, filed 12/12/22), contends that the rule by its terms does not apply to child placing agencies that contract with state agencies that initially receive federal grants, and that the rule, for numerous reasons, is an invalid exercise of agency authority. Texas Attorney General Ken Paxton issued a press release announcing the filing of the lawsuit.

5th Circuit: District Court's Order on Religious Rights in Execution Chamber Was Too Broad

In Barbee v. Collier, (5th Cir., Nov. 11, 2022), the U.S. 5th Circuit Court of Appeals vacated and remanded for further proceedings an injunction issued by a Texas federal district court that barred the execution of convicted murderer Stephen Barbee until the Texas Department of Criminal Justice publishes a clear policy on inmates' religious rights in the execution chamber. Barbee wants his spiritual advisor to pray aloud with him and hold his hand. (See prior posting.) The 5th Circuit said in part:

While a written policy may be desirable ..., the available remedy for Barbee’s RLUIPA violation “is an injunction ordering the accommodation,” ... As it stands, the preliminary injunction ordering the Defendants to enact a written policy on religious accommodation that would apply to all executions is overbroad and must be vacated. The district court may instead consider what relief specific to Barbee is consistent with Ramirez and is appropriate in this case.

On Monday, Barbee filed with U.S. Supreme Court Justice Samuel Alito an Application for a Stay of Execution (full text) and a Petition for Certiorari (full text). Yesterday, the state filed a Brief in Opposition to Barbee's filings (full text). Barbee's execution is currently scheduled for 6:00 pm Central Time today.  Courthouse News Service reports on these developments.

UPDATE: On Wednesday, Nov. 16, the U.S. Supreme Court denied Barbee's application for a stay of execution and his petition for certiorari. (Full text of Order.). Courthouse News Service reports.

Texas Prisons Must Adopt Formal Policy on Religious Rights in Execution Chamber

In Barbee v. Collier, (SD TX, Nov. 3, 2022), an inmate whose execution had been scheduled sought a court order from a Texas federal district requiring Texas to allow his spiritual advisor to be present with him in the execution chamber, to pray audibly with him and have physical contact with him, holding his hand, to confer a blessing on him. The Director of the Texas Department of Criminal Justice filed a series of affidavits assuring the court that these requests would be granted and moved dismiss the lawsuit as moot. The court, however, was unconvinced, saying in part:

In Ramirez [v.  Collier], the Supreme Court encouraged States to "adopt clear rules" and "streamlined procedures" that would protect an inmate's religious rights in the execution chamber.... TDCJ has not responded by enacting any formal policy guaranteeing religious expression in the execution chamber. Instead, TDCJ has left in place an official execution protocol that contains provisions describing the presence, approval process, and vetting requirements for spiritual advisors. Hence, the 2021 protocol is silent as to what a spiritual advisor may do, if anything, inside the execution chamber.,,, 

TDCJ has apparently left the question of what a spiritual advisor may do to the discretion of prison officials.... Until quite recently, TDCJ officials interpreted the silence in the official protocol to prohibit any physical touch or audible prayer in the execution chamber. Now, TDCJ would have the Court accept their latest pronouncement that the same provisions may be read to allow physical contact and audible prayer.... TDCJ officials have initiated a practice of allowing physical contact and audible prayer when the requests are sufficiently timely and permit security checks.

However, the defendants have not specifically formalized in a policy or otherwise described what the basis is for it unwritten practice....

[TDJC] has been encouraged by the highest court in the land to develop a policy that can be reviewed.  The stubbornness of TDCJ to enact a policy that removes all discretion, except in critical instances, militates against extending the lesser burden to TDCJ.

The court entered a Preliminary Injunction that provides:

Texas [TDCJ] may proceed with the execution of Stephen Barbee on November 16, 2022, only after it publishes a clear policy that has been approved by its governing policy body that (1) protects an inmate's religious rights in the execution chamber and (2) sets out any exceptions to that policy, further describing with precision what those exceptions are or may be.

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. 

Texas Federal District Court Invalidates HHS and EEOC Guidance On Application Of Bostock Decision

In State of Texas v. EEOC, (ND TX, Oct. 1, 2022), a Texas federal district court held that Guidance documents issued by the EEOC and by the Department of Health and Human Services are unlawful. It vacated and set aside the Guidance documents. At issue are the HHS and EEOC applications of the Supreme Court's Bostock decision. Bostock held that sex discrimination in Title VII includes discrimination because of sexual orientation or gender identity. The HHS Guidance interprets the Affordable Care Act, the Rehabilitation Act and the ADA to prohibit denial of gender-affirming care by healthcare providers. The Texas federal district court says that Bostock  only bars discrimination based on sexual orientation or gender identity status, and does not extend to discrimination based on conduct related to those statuses. The court concluded that the HHS Guidance is arbitrary and capricious because it misstates the law (in part by suggesting that gender dysphoria is a disability under the ADA) and does not detail what went into the Department's decision making. The court held that the EEOC violated procedural rules in issuing its Guidance. Texas Attorney General Ken Paxton issued a press release reacting to the decision. Texas Tribune reports on the decision.

Courtroom Invocations Did Not Violate Establishment Clause [UPDATED]

In Freedom From Religion Foundation v. Mack, (5th Cir., Sept. 29, 2022), the U.S. 5th Circuit Court of Appeals 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 does not violate the Establishment Clause. The court said in part:

The plaintiffs cry coercion because Texas Justice of the Peace Wayne Mack opens his court with a ceremony that includes a prayer. But Mack also takes great pains to convince attendees that they need not watch the ceremony—and that doing so will not affect their cases. Some attendees say they feel subjective pressure anyway. Yet the plaintiffs have no evidence suggesting that “coercion is a real and substantial likelihood.” Town of Greece v. Galloway, 572 U.S. 565, 590 (2014).

Want of evidence showing coercion dooms their case. In holding otherwise, the district court disregarded the Supreme Court’s most recent guidance.

First Liberty Institute issued a press release announcing the decision.  The 5th Circuit had previously granted a stay which allowed the invocations to go on while the case was on appeal.

UPDATE: This was a 2-1 decision. Judge Jolly filed an opinion dissenting in part.  He argued that the case needed to be sent back to the district court for additional fact finding.  He criticized the majority's opinion, saying in part:

Plaintiffs have produced considerable evidence showing that Judge Mack conducts his opening prayer and other religious ceremonies “in such a way as to oblige the participation of objectors.” ...  For the majority to find that there is no evidence of coercion, suggests, in my opinion, willful blindness and indisputable error....

[D]espite digging into the history books, the majority’s opinion comes up dry on historical precedent.... [And] the majority inaccurately presents recent Supreme Court precedent.

Texas Supreme Court: Enforceability Of Islamic Pre-Nup Must Be Decided Before Ordering Arbitration

In In re Ayad, (TX Sup. Ct., Sept. 23, 2022), the Texas Supreme Court held that the trial court should determine the validity and enforceability of an Islamic Pre-Nuptial Agreement before, rather than after, ordering the parties to arbitration by a Fiqh Panel pursuant to the agreement. In a divorce proceeding, the wife challenged the enforceability of the agreement on various grounds, including that the term "Islamic Law" is too indefinite and that the Agreement is void as violating public policy. Volokh Conspiracy discusses the decision. [Thanks to Steven H. Sholk for the lead.]

Religious Discrimination Claims Against Child Protective Services Meet Procedural Hurdles

In Gautreaux v. Masters, (WD TX, Aug. 29, 2022), a Texas federal magistrate judge recommended that the court dismiss some or all of the free exercise and due process claims brought by foster parents who were accused by the Texas Department of Family and Protective Services (DFPS) of child abuse. The opinion describes plaintiffs' allegations:

[DFPS] asked the couple to identify their religion during the application process, and they identified themselves as practicing members of the Church of Jesus Christ of Latterday Saints.... Gautreaux alleges that DFPS demonstrated "hostility toward the Gautreauxes' religion" at their initial interview, while their follow-up interview "exclusively concerned the Gautreauxes' religious practices and beliefs."...

... DFPS informed Gautreaux that the department had found there was "reason to believe" she had committed the alleged abuse, resulting in Gautreaux being placed on the DFPS central registry "as a child abuser." ... Gautreaux alleges that DFPS's decision was motivated by religious "animus" and that there was no evidence of abuse to support the finding....

Gautreaux alleges that she is unable to practice her religion as a result of her placement on the DFPS central registry. Specifically, Gautreaux alleges that she cannot participate in her "calling" - an assignment made by Church leaders - which is to "teach singing to children in her local church."

In a lengthy opinion, the Magistrate Judge recommended either that all the claims be dismissed under the Younger abstention doctrine, or alternatively that most of plaintiffs' free exercise claims be dismissed because of 11th Amendment sovereign immunity. Under the alternative recommendation, the court could move ahead on  claims challenging DFPS's policies of considering religious beliefs and practices as a concern in abuse investigations and its disregarding of inconsistent court rulings.

5th Circuit Approves Injunction Shielding Religious Organizations From Mandate On Transgender Medical Care

In Franciscan Alliance, Inc. v. Becerra, (5th Cir., Aug. 26, 2022), the U.S. 5th Circuit Court of Appeals, invoking RFRA, upheld a Texas federal district court's issuance of a permanent injunction barring the government from interpreting or enforcing provisions of the Affordable Care Act to require religious organizations, in violation of their religious beliefs, to perform or provide insurance coverage for gender-reassignment surgeries or abortions. At issue is the interpretation of the ACA's ban on discrimination on the basis of sex. The court however held that an alternative claim based on the Administrative Procedure Act was moot. Becket issued a press release announcing the decision.

Court Enjoins Enforcement In Texas Of HHS Emergency Abortion Guidance

In State of Texas v. Becerra, (ND TX, Aug. 23, 2022), a Texas federal district court issued a preliminary injunction prohibiting enforcement in Texas of the Department of Health and Human Services' guidance to hospitals (and accompanying letter) which, relying on the federal Emergency Medical Treatment & Labor Act, requires hospital emergency rooms to perform certain abortions even when they violate Texas law. According to the Guidance, when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition, EMTALA requires emergency rooms to perform it. The court's 67-page opinion said in part:

Texas law already overlaps with EMTALA to a significant degree, allowing abortions in life-threatening conditions and for the removal of an ectopic or miscarried pregnancy. But in Dobbs’s wake and in an attempt to resolve any potential conflict with state law, the Department of Health and Human Services issued Guidance purporting to remind providers of their existing EMTALA obligations to provide abortions regardless of state law. That Guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict. Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child. Nor can it, in doing so, create a conflict with state law where one does not exist. The Guidance was thus unauthorized. In any event, HHS issued it without the required opportunity for public comment.

Reuters reports on the decision.

Fire Department Chaplain Dismissed Because Of His Blog Posts Files Suit

An ordained Christian minister who has been a volunteer fire department chaplain in Austin, Texas filed suit in a Texas federal district court yesterday alleging that his free speech and free exercise rights were violated when the fire department terminated him as a chaplain because of his social media posts.  The complaint (full text) in Fox v. City of Austin, (WD TX, filed 8/18/2022), alleges in part:

Dr. Andrew K. Fox ... helped start Austin’s fire chaplaincy program and served as its lead chaplain—a volunteer position—for eight years. That abruptly changed when Dr. Fox posted something on his personal blog that Austin officials considered unacceptable: his religious belief that men and women are created biologically distinct and his view that men should not compete on women’s sports teams. After Austin officials demanded that Dr. Fox recant and apologize for expressing these beliefs and Dr. Fox refused, they terminated him....

Under the City’s standard, no one who openly holds historic Christian beliefs about the immutable differences between men and women can serve as a chaplain or in any other fire department position.... When the government can needlessly punish people for professing views outside of work on matters of ongoing public debate, that chills everyone’s speech and discourages democratic participation.

ADF issued a press release announcing the lawsuit.