Utah Supreme Court Upholds Preliminary Injunction Against Law Banning Most Abortions

 In Planned Parenthood Association of Utah v. State of Utah, (UT Sup. Ct., Aug. 1, 2024), the Utah Supreme Court, in a 4-1 decision, affirmed a trial court's entry of a preliminary injunction against enforcement of SB174, a trigger law that prohibits all abortions except for death or substantial bodily harm of the mother, lethal defect or brain abnormality of the fetus, or the mother was pregnant as a result of rape or incest. The state Supreme Court said in part:

In re J.P. discussed, among other [state constitutional] rights, the right to marry the person of one’s choosing and the right to establish a home.... The commonality these rights share is not a child, but the right to make certain intimate decisions about one’s life free from government intrusion. At this point in the litigation, we cannot say whether a restriction on the ability to choose to have an abortion infringes the rights we recognized in In re J.P., but there are serious questions regarding the scope of those rights that merit further litigation....

PPAU has standing to press its claims and the claims of its patients. 

The district court did not err when it concluded that PPAU had raised serious issues about the constitutionality of SB 174. The court did not abuse its discretion when it concluded that PPAU and its patients would be irreparably harmed without the injunction. Likewise, the court did not abuse its discretion when it concluded that the balance of harms tipped in favor of enjoining SB 174 while the parties litigate its constitutionality. Nor did the court act outside the bounds of its discretion when it concluded that the injunction would not be adverse to the public interest.

Chief Justice Durrant filed a dissenting opinion, contended that Planned Parenthood lacked standing to bring the lawsuit.

Utah News Dispatch reports on the decision.

Two Additional Courts Enjoin Enforcement of New Title IX Rules

In addition to the nationwide preliminary injunction against enforcement of the Department of Education's new Title IX rules on transgender discrimination (see prior posting), two other federal district court last week issued more geographically limited preliminary injunctions against enforcement of the same rules. In State of Florida v. Department of Health and Human Services, (MD FL, July 3, 2024),  a Florida federal district court enjoined enforcement within Florida, saying in part:

HHS and the Final Rule interpret Title IX, and hence section 1557, to prohibit discrimination based on “gender identity.” 89 Fed. Reg. at 37,699 (45 C.F.R. § 92.101(a)(2)). The Final Rule is stillborn and a nullity if Title IX does not prohibit discrimination on the basis of “gender identity.” The Eleventh Circuit has spoken on this point, clearly: Title IX does not address discrimination on the basis of gender identity. Adams v. Sch. Bd. of St. John’s Cnty., 57 F. 4th 791, 812–15 (11th Cir. 2022) (en banc). Frankly, this ends the issue—the new Rule appears to be a dead letter in the Eleventh Circuit.

In State of Kansas v. U.S. Department of Education, (D KS, July 2, 2024), a Kansas federal district court issued a preliminary injunction against enforcement of the new rules in Kansas, Alaska, Utah and Wyoming, saying in part:

... [T]he purpose of Title IX was to protect “biological women from discrimination in education[;] [s]uch purpose makes it difficult to sincerely argue that, at the time of enactment, ‘discrimination on the basis of sex’ included gender identity, sex stereotypes, sexual orientation, or sex characteristics.”... The DoE’s reinterpretation of Title IX to place gender identity on equal footing with (or in some instances arguably stronger footing than) biological sex would subvert Congress’ goals of protecting biological women in education....

... [T]he court finds that the Final Rule involves issues of both vast economic and political significance and therefore involves a major question.... As such, Congress must have given the agency “clear statutory authorization” to promulgate such a Final Rule.....The court finds that Congress did not give such clear statutory authorization to the DoE....

... [T]he Final Rule violates the Spending Clause because it introduces conditions for spending that were not unambiguously clear in Title IX....

The court finds that Plaintiffs have shown that the Final Rule violates he First Amendment by chilling speech through vague and overbroad language.....

 [T]he court finds that the Final Rule is arbitrary and capricious because it offers an implausible explanation for agency action, is a sharp departure from prior action without a reasonable explanation, and failed to consider important interests as discussed herein.

Utah Legislature Passses Religious Freedom Bill

The Utah legislature yesterday gave final passage to S.B. 150: Exercise of Religion Amendments (full text). The bill is similar, though not identical to, Religious Freedom Restoration Acts passed in 35 other states. It prohibits governmental imposition of a substantial burden on the free exercise of religion unless the government demonstrates a compelling interest and uses the least restrictive means to further that interest. In a compromise with LGBTQ advocates, the sponsor of the bill added language in the introductory "Whereas" clauses to preserve existing protections against discrimination in employment and housing based on sexual orientation or gender identity. (Background). Those clauses read:

(d) WHEREAS, Utah has enacted a number of laws that balance religious freedom with other important civil rights; and

(e) WHEREAS, this part complements, rather than disrupts, the balance described in Subsection (1)(d).

The bill now goes to Governor Spencer Cox for his signature. States Newsroom reports on passage of the bill.

Expanded Protection of Utah Lands Did Not Violate Establishment Clause

In Huck v. United States, (D UT, Sept. 21, 2023), a Utah federal district court rejected Establishment Clause, equal protection, due process and other challenges to Congress' 2019 designation of certain public lands in Utah as wilderness areas. The designation resulted in the lands being subject to more stringent use restrictions, including a ban on motor vehicles. Plaintiffs alleged that the designation was done to support Earth-religions and their beliefs regarding the ‘sacredness’ of public lands, in violation of the Establishment Clause. The court said in part:

 Given the recency of the Kennedy v. Bremerton School District decision, there is limited case law interpreting and applying the Supreme Court’s new [Establishment Clause] standard....

Recognizing these are relatively unchartered waters, the court considers Plaintiffs’ challenge with an eye toward the historical practice and understanding of the Establishment Clause and federal public lands management. While the concept of designated wilderness areas and motor vehicles might have seemed outlandish to the Founding Fathers, there is substantial legal authority supporting the federal government’s historically broad authority to designate public lands and restrict the public’s access to them. These actions, without more, do not raise the specter of government coercion of religious practices or observances....

Similarly, Plaintiffs have not plausibly alleged BLM’s motor vehicle restrictions violate “governmental neutrality between religion and religion, and between religion and nonreligion.”

The court also rejected plaintiffs' equal protection claim, saying in part:

Though Plaintiffs speculate that “[t]he BLM (as well as other . . . agencies) [conspired] with Earth-religionists [to] . . . deprive the aged, disabled or handicapped . . . from being able to access and travel upon many of the public lands,” these conclusory allegations—or speculations—fall short of satisfying Plaintiffs’ burden of alleging that the challenged actions were driven by discriminatory intent. On the contrary, Plaintiffs stress that the Dingell Act and motor vehicle restrictions were the result of the Earth-religionists’ efforts to “preserve and protect ‘Gaia’ or ‘Mother Earth,’” rather than an attempt to hinder the elderly or disabled.

High School's Failure to Supervise Student Did Not Violate Parents' Free Exercise Rights

In Doe v. Alpine School District, (D UT, June 21, 2023), a Utah federal district court rejected claims by the parents of a high school student that the school's practice of giving students long periods of unsupervised time during the last week of the school year violated their religious free exercise rights.  According to the court:

The Does are members of the Church of Jesus Christ of Latter-day Saints and have raised their son under its doctrines and to follow its practices, one of which prohibits premarital sex. The Does had previously discovered that JD had begun having sex with his girlfriend and had placed restrictions on JD’s activity to prevent him from having premarital sex thereafter, such as requiring him to be accompanied by other persons when he was with his girlfriend.... The Does learned that JD had had sex with his girlfriend in the parking lot next to the school during school hours three times during the final week of school....

The Does’ claim under the Free Exercise Clause fails because they have not alleged that the Alpine School District coerced them to abandon a religious tenet or belief. First, the school district did not coerce JD into acting against his religious beliefs. He freely chose to have premarital sex with his girlfriend, even though this was against the teachings of his religion. 

Second, the Alpine School District did not coerce the Does to act contrary to their religious principles. The Does allege that they have a religious duty to encourage JD to abstain from premarital sex. The district did nothing to pressure or force the Does to refrain from passing on those teachings to her son. The Does instead argue that the district’s policies allowed JD a window of opportunity to have sex, thwarting their attempts to prevent him from doing so. In essence, the Does assert that the Alpine School District did not do enough to help them perform their religious obligations. But the Free Exercise Clause does not impose such a duty on government entities....

The court also rejected plaintiffs' 14th Amendment parental rights claim.

New Utah Law Requires All Abortions To Be In Hospitals, Not In Clinnics

On Wednesday, Utah Governor Spencer Cox signed HB467 (full text) which requires that after January 1, 2024, all abortions be performed in hospitals, not in abortion clinics. Additionally, it expands the exception for rape and incest to also include any pregnancy of a child under 14 years of age. In another change, however, the new law allows abortions in all of these cases only before 18 weeks of pregnancy. The new law also makes a number of other changes in the state's abortion statutes.  Legislative history of the bill is available here.  AP reports on the new law. AP says in part:

Last year’s Supreme Court ruling [in Dobbs] triggered two previously passed pieces of legislation— a 2019 ban on abortion after 18 weeks and a 2020 ban on abortions regardless of trimester, with several exceptions including for instances of risk to maternal health as well as rape or incest reported to the police. The Planned Parenthood Association of Utah sued over the 2020 ban, and in July, a state court delayed implementing it until legal challenges could be resolved. The 18-week ban has since been de facto law.

Abortion-access proponents have decried this year’s clinic ban as a back door that anti-abortion lawmakers are using to limit access while courts deliberate.

Israel's Supreme Court Says Interior Ministry Must Register Marriages Performed on Zoom Through Utah

The Times of Israel and Jerusalem Post report on yesterday's decision by Israel's Supreme Court in    Ministry of the Interior v. Brill (Israel Sup. Ct., March 7, 2023) (summary and full text of decision in Hebrew). The Court ruled that the Interior Ministry's Population and Immigration Authority must register marriages of Israelis performed online through Zoom by a Deputy Clerk in the U.S. state of Utah with the other marriage participants being located in Israel. Utah County has created a fairly simple procedure for "Marriage Ceremonies By Remote Appearance." The Supreme Court's ruling affirms decisions by two separate Israeli trial courts. The Supreme Court insisted that it was ruling only on the obligation of the Registry Clerk to register the marriage once presented with the relevant documentation and was not ruling on the marriage's validity. The Registry Clerk, the Court said, did not have authority to decide the difficult legal question of whether the marriage should be seen as having taken place in Utah or in Israel.

Previously, Israeli Jewish couples wishing to marry without leaving the country have been required to marry through the Chief Rabbinate. Civil marriage has been unavailable. Some 1200 Israeli couples have already married through Utah in ceremonies performed on Zoom. According to The Times of Israel:

The court’s ruling is a significant win for advocates of civil marriage in Israel who have campaigned for it for decades, but will be bitterly opposed by the coalition’s religious parties, which denounced the decision as soon as it was published.

The controversial ruling comes as Israel is in the midst of a bitter battle over proposed judicial reforms that, among other things, would give the Knesset (the Parliament) the power through a simple majority vote to overrule Supreme court decisions.

Utah Supreme Court Says Order in Divorce Proceeding on Children's Religious Teaching Is Too Broad

Kingston v. Kingston, (UT Sup. Ct., Dec. 22, 2022), is a challenge by Ryan Kingston to a trial court's order in a divorce proceeding that barred him from encouraging his children to adopt the teachings of any religion without the consent of his former wife, Jessica. According to the Court:

At the time of their marriage, Ryan and Jessica were both members of the Order, also known as the Kingston Group, a polygamous religious community. Ryan remains a member of the Order today, but Jessica left the Order before the divorce.

During the divorce proceedings, the teachings and practices of the Order became a key issue as both Ryan and Jessica sought custody of their four children.

In a 3-2 decision, the Court remanded the case to the trial court for it to "craft a more narrowly tailored remedy." The majority said in part:

 [W]e agree with Jessica that the State has a compelling interest in shielding the children from psychological harm. The district court found that "[t]he Order's religious teachings jeopardize the health or safety of the children, and will cause harm to the children's welfare." Specifically, the court identified two potentially substantial harms to the children associated with Ryan's religious beliefs: (1) grooming of the children for early marriage; and (2) exposure to Order teachings that ostracize outsiders and demonize those who have left the group, including Jessica. Protecting the children from these harms is a compelling state interest....

The district court's prohibition is broader than necessary to prevent the identified potential harms to the children. The court prohibited Ryan from "encourag[ing] [the children] to adopt the teachings of any religion" without Jessica's consent. This prohibition applies broadly to "the teachings of any religion," but the court only identified specific harms associated with the Order. As written, the prohibition would prevent Ryan from teaching the children the Lord's Prayer or encouraging them to adopt the teachings of Islam. Based on a plain language reading of the prohibition, Ryan would have to seek Jessica's consent before engaging in either of these activities. The prohibition cannot be described as "narrowly tailored" when it reaches far beyond the compelling interest it is meant to address....

 Associate Chief Justice Pearce filed a dissenting opinion, joined by Justice Peterson.  They said in part:

[S]trict scrutiny is the wrong test to apply.... I would follow the Utah Code and analyze whether the district court found, by a preponderance of the evidence, real or substantiated potential harm to the child if the parent is allowed to participate in the child's religious upbringing.....

There is absolutely no evidence in the record that Ryan's objection to the district court's order is fueled by a desire to read the Quran to his children or to lead them in the Lord's Prayer....

... I respectfully dissent and would affirm the district court's order.

Utah Court Strikes Down Ban On Transgender Girls On School Sports Teams

 In Roe v. Utah High School Activities Association, (UT Dist. Ct., Aug. 19, 2022), a Utah state trial court issued a preliminary injunction barring enforcement of a provision in Utah law that bans transgender girls from competing on pre-college girls sports teams. Under Utah law, if the ban is enjoined a School Activity Eligibility Commission is to be created that will consider confidentially on a case-by-case basis whether it would be fair for a particular transgender student to compete on girls' teams. The court said in part:

The Court finds that Plaintiffs have shown a substantial likelihood that the Ban violates the uniform operation of laws (“UOL”) clause of the Utah Constitution....

Both a plain reading of the Ban and relevant case law demonstrate that the legislation classifies individuals based on transgender status and, therefore, on sex....

During the 2021-22 school year, only four of the 75,000 students that played high school sports in Utah were transgender. Of those four, only one student played on a girls’ team.... There is no support for a claim “that allowing transgender women to compete on women’s teams would substantially displace female athletes.”....  

Similarly, Plaintiffs’ evidence suggests that there is no basis to assume that transgender girls have an automatic physiological advantage over other girls. Before puberty, boys have no significant athletic advantage over girls.... Many transgender girls – including two of the plaintiffs in this case – medically transition at the onset of puberty, thereby never gaining any potential advantages that the increased production of testosterone during male puberty may create.... Other transgender girls may mitigate any potential advantages by receiving hormone therapy.... And still others may simply have no discernable advantage in any case, depending on the student’s age, level of ability, and the sport in which they wish to participate. The evidence suggests that being transgender is not “a legitimate accurate proxy” for athletic performance.

AP reports on the decision.

Indiana and Utah Governors Veto Bans Of Transgender Females On Sports Teams

Indiana Governor Eric Holcomb on Monday vetoed HEA 1041 (full text) which bans transgender females from competing on female interscholastic athletic teams.  In his veto letter (full text), the Governor said in part:

[T]he presumption of the policy laid out in HEA 1041 is that there is an existing problem in K-12 sports in Indiana that requires further state government intervention. It implies that the goals of consistency and fairness in competitive female sports are not currently being met. After thorough review, I find no evidence to support either claim even if I support the overall goal.

AP reports on the governor's action.

Meanwhile, yesterday Utah Governor Spencer Cox vetoed H.B.11 (full text) which similarly prohibited transgender females from competing on female interscholastic athletic teams. The bill provided that if this ban was struck down by the courts, a School Activity Eligibility Commission would be created to determine the eligibility for gender-specific teams of students who are undergoing gender transition. The Commission would establish a baseline range of physical characteristics for different sports and ages to use in making its determinations.

Governor Cox issued a lengthy and detailed veto letter (full text), which reads in part:

Because the bill was substantially changed in the final hours of the legislative session with no public input and in a way that will likely bankrupt the Utah High School Athletic Association and result in millions of dollars in legal fees for local school districts with no state protection, and for several other reasons below, I have chosen to veto this bill....

Four kids and only one of them playing girls sports. That’s what all of this is about. Four kids who aren’t dominating or winning trophies or taking scholarships. Four kids who are just trying to find some friends and feel like they are a part of something. Four kids trying to get through each day. Rarely has so much fear and anger been directed at so few. I don’t understand what they are going through or why they feel the way they do. But I want them to live. And all the research shows that even a little acceptance and connection can reduce suicidality significantly. For that reason, as much as any other, I have taken this action in the hope that we can continue to work together and find a better way. If a veto override occurs, I hope we can work to find ways to show these four kids that we love them and they have a place in our state.

AP reports on the governor's action, and reports that legislative leaders plan to reconvene on Friday to consider a veto override.  The Governor has issued a Proclamation calling a special session of the legislature for Friday to consider an indemnification provision for the Utah High School Athletic Association and local school districts that will be sued.

UPDATE: As reported by AP, on March 25, the Utah legislature overrode the governor's veto.

UPDATE: As reported by WYFI, on May 24 the Indiana legislature overrode the governor's veto. The ACLU has filed suit challenging the law.

Huntsman's Fraud Claim Against Mormon Church Dismissed

In Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (CD CA, Sept. 10, 2021), a California federal district court dismissed a fraud suit brought by James Huntsman against the LDS Church. Huntsman, a prominent LDS Church member, alleged that the Church falsely claimed that no tithing funds would be used in its development of commercial real estate in Salt Lake City. Huntsman claims this was false because the Church used earnings on invested tithing funds for the project. First the court held that the church autonomy doctrine does not require dismissal of the case because the dispute is purely secular. It does not involve an analysis of Church policy or doctrine. However, the court concluded that no reasonable juror could conclude that defendant made a misrepresentation. The President of the Church, while stating that no tithing funds would be used, added that earnings of invested reserve funds will be used. The court also rejected a fraud claim relating to a second project. A Notice of Appeal of the decision to the 9th Circuit has been filed.

Most Misrepresentation Claims Against LDS Church Dismissed; RICO Claim Survives

In Gaddy v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (D UT, July 28, 2021), a Utah federal district court dismissed most of the claims in an amended complaint by a former LDS Church member alleging that several basic teachings of the Church involve misrepresentations. The court previously dismissed plaintiff's original complaint. (See prior posting.) In passing on her amended complaint, the court said in part:

Gaddy's new factual allegations relating to the locations of events described in the Book of Mormon and the founding prophet Joseph Smith's marriages directly implicate the Church's core religious teachings.... [S]he seeks to attack the veracity of the Church's teachings about the Book of Mormon and its doctrines by challenging the accuracy of certain facts contained in the text. As this court previously explained, a plaintiff may not, for example, challenge in a court of law religious beliefs that Noah built an ark, loaded it with his family and representative animals of the world, and was thereby saved from world-engulfing floods. Neither may a plaintiff circumvent this restriction by merely attacking religious accounts concerning the locations where Noah built the ark or where the ark came to rest....

Gaddy is correct that courts are required to evaluate the sincerity of religious beliefs.... However, courts engage in this inquiry of those seeking religious accommodation or exception to a rule or law of general application ... for the purpose of ensuring the government accommodate only genuine religious beliefs that are sincerely held.

This rationale is inapplicable here because the church autonomy doctrine is not an accommodation.... Rather, it is a "fundamental right of churches to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine."

The court however did allow plaintiff to move ahead with her civil RICO claim based on alleged misrepresentations about the way in which tithed funds would be spent:

Here, Gaddy does not challenge the Church's tithing doctrine or teachings related to it.... Gaddy instead points to specific factual statements allegedly made by the Church ... concerning the Church's use of tithing funds and alleges those statements are false. The inquiry required to adjudicate this claim does not implicate religious principles of the Church or the truth of the Church's beliefs concerning the doctrine of tithing. This claim further does not require the court to determine whether the Church or its members were acting in accord with what they perceived to be the commandments of their faith. Gaddy has instead challenged secular representations....

Utah Supreme Court: Lemon Test Is No Longer Controlling

In Williams v. Kingdom Hall of Jehovah's Witnesses, Roy, Utah, (UT Sup. Ct., June 3, 2021), the Utah Supreme Court vacated the trial and appellate courts' dismissal of a claim for intentional infliction of emotional distress against the Elders of a Jehovah's Witnesses church. At issue was the manner in which the Elders conducted an investigation of whether a 14-year old girl who was raped by a congregant was herself guilty of the sin of "porneia". The state Supreme Court said in part:

Although the conclusion reached by the district court and the court of appeals may ultimately prove to be the correct one, we note that in reaching that conclusion both courts relied on the excessive entanglement test established in Lemon. But ... Lemon has been overtaken by more recent Supreme Court cases.  Because the district court applied the excessive entanglement test from Lemon instead of the approach followed in these more recent cases, we vacate the district court‘s decision and remand for any additional proceedings necessary to adequately conduct the Supreme Court‘s current approach to the Establishment Clause.

... [T]he district court should focus on the particular issue at hand and look to history for guidance as to the correct application of the Establishment Clause.... [T]he court should identify ―an overarching set of principles and explain how those principles should be applied in this case.

Ogden Standard-Examiner reports on the decision. [Thanks to James Phillips for the lead.]

Utah Administrative Rule Banning Conversion Therapy Becomes Effective

As reported by NPR, in Utah a new rule under the Mental Health Professional Practice Act (full text of rule [scroll to pp. 61-66]) bans mental health professionals from providing conversion therapy to minors. The rule defines conversion therapy as

any practice or treatment that seeks to change the sexual orientation or gender identity of a patient or client, including mental health therapy that seeks to change, eliminate, or reduce behaviors, expressions, attractions, or feelings related to a patient or client's sexual orientation or gender identity.

The new rule became effective yesterday.  It excludes from coverage:

(i) a clergy member or religious counselor who is acting substantially in a pastoral or religious capacity and not in the capacity of a mental health therapist; or

(ii) a parent or grandparent who is a mental health therapist and who is acting substantially in the capacity of a parent or grandparent and not in the capacity of a mental health therapist.

KUER traces the evolution of the ban in Utah. After the original version of the ban failed to pass the state legislature last year, Utah Gov. Gary Herbert negotiated a version with the above exclusions that gained the support of the Church of Jesus Christ of Latter Day Saints. While Utah becomes the 19th state to pass this sort of ban, it is the first with a Republican governor and Republican controlled legislature to do so. [Thanks to Scott Mange for the lead.]

Judicial Oversight of FLDS Land Trust Ended

According to AP, a Utah state court judge on Tuesday agreed to end the 14-year judicial oversight of the United Effort Plan Trust that holds property of members of the polygamous FLDS Church. The Trust has resold over 200 homes and buildings to former FLDS members. Those seeking continued judicial oversight say that favoritism is shown by the community board that determines who may purchase property from the Trust. (See prior related posting.)

Utah Enacts Hate Crimes Law

Utah Governor Gary Herbert yesterday signed S.B. 103 Victim Targeting Penalty Enhancements (full text). The new law creates enhanced penalties for various crimes when the victim was targeted because of 18 personal attributes. These include race, religion, sex, sexual orientation and gender identity. Utah Policy reports on the enactment of this hate crimes bill.

Court Dismisses Suit Challenging Church's Internal Investigation

In Williams v. Kingdom Hall of Jehovah's Witnesses, (UT App, March 21, 2019), a Utah state appellate court upheld the dismissal of an intentional infliction of emotional distress claim brought by a member of the Jehovah's Witnesses against church bodies and individuals.  At issue was the manner in which a judicial committee of the Church conducted an investigation into plaintiff Ria Williams sexual conduct.  The court said in part:

In the summer of 2007, Williams met another Jehovah’s Witnesses congregant (“Church Member”). Williams and Church Member began seeing each other socially, but the relationship quickly changed and throughout the rest of the year Church Member physically and sexually assaulted Williams, who was a minor....

After questioning Williams about her sexual conduct, the Elders played an audio recording of Church Member raping Williams. Church Member recorded this incident and gave it to the Elders during their investigation of Williams. The recording was “several hours” in length. Williams cried and protested as the Elders replayed the recording. The Elders played the recording for “four to five hours” stopping and starting it to ask Williams whether she consented to the sexual acts. During the meeting Williams was “crying and physically quivering.” Williams conceded she was able to leave but risked being disfellowshipped if she did....

Allowing Williams’s claims in this case to be litigated would require the district court to unconstitutionally inject itself into substantive ecclesiastical matters. Williams argues she is not challenging the Church’s ability to determine what constitutes “sinful behavior”.... But Williams asks the factfinder to assess the manner in which the Church conducted a religious judicial committee, which requires it to assess religiously prescribed conduct....

We conclude Williams’s claim for IIED requires an inquiry into the appropriateness of the Church’s conduct in applying a religious practice and therefore violates the Establishment Clause of the First Amendment.

Utah Legislature Repeals Ban On Fornication

On Wednesday, the Utah state legislature gave final passage to S.B.43 (full text) and sent it to the governor for his signature. The bill, which enacts several amendments to the state's Criminal Code includes a repeal of Sec. 76-7-104, Utah's prohibition on fornication.  Fox 13 News reports on the legislature's action. [Thanks to Scott Mange for the lead.]

Suit Charges Mormon Church With Dominating Utah In Change To Marijuana Initiative

A lawsuit was filed Wednesday in a Utah state trial court challenging the Utah legislature's enactment of H.B. 3001 which weakens a medical marijuana initiative passed by Utah voters last month. According to an AP report, the new law, among other things, bans a number of marijuana edibles; bars people from growing their own marijuana if they live far from a dispensary; and narrows the list of eligible medical conditions for which the drug can be used. The original Initiative was opposed by the Mormon Church, and H.B.. 3001 reflects a compromise designed to prevent the legislature from completely repealing the Initiative measure. The complaint (full text) in Epilepsy Association of Utah v. Herbert, (UT Dist. Ct., filed 12/5/2018), alleges in part:

This is an action for declaratory and injunctive relief arising from, first, the unconstitutional violation by the Utah Legislature of the constitutional right of the People to directly pass legislation through the initiative process under Article VI, Section 1 of the Utah Constitution and, second, the unconstitutional domination of the State, and interference with the State’s functions, by The Church of Jesus Christ of Latter-day Saints (“the Church”), in violation of Article I, Section 4 of the Utah Constitution.

Art. I, Sec. 4 of the state constitution provides: "There shall be no union
of Church and State, nor shall any church dominate the State or interfere with its functions."

Suit Claims Utah Medical Marijuana Initiative Violates Mormons' Religious Freedom

The Salt Lake Tribune reports that yesterday a suit was filed in Utah state court seeking, on free exercise and free speech grounds, to remove Utah's medical marijuana initiative from the November ballot.  The suit, citing the U.S. Supreme Court's recent Masterpiece Cakeshop decision, challenges the provision (Sec. 26-60b-110) in the initiative (full text) that bars refusals to rent to a medical marijuana card holder. The complaint reads in part:

In the United States of America, members of all religions, including the Church of Jesus Christ of Latter Day Saints have a constitutional right to exercise their religious beliefs. This includes the right not to consort with, be around, or do business with people engaging in activities which their religion finds repugnant....

The State of Utah is attempting to compel the speech of Utah landowners by suppressing their ability to speak out against cannabis use and consumption by only renting to tenants who do not possess or consume cannabis," the complaint reads, “and who support their viewpoints in opposition against cannabis possession and consumption.

In the suit, plaintiff contends that his "religious beliefs include a strict adherence to a code of health which precludes the consumption and possession of mind-altering drugs, substances and chemicals, which includes cannabis and its various derivatives." Apparently this is based on interpretation of the Mormon Word of Wisdom health code.