New Washington State Law Protects Abortion Rights

As reported by MyNorthwest, on Thursday, Washington Governor Jay Inslee signed HB1851 (full text) protecting the right to abortion before viability of the fetus or to protect the life or health of the pregnant individual.  It provides in part:

The state shall not penalize, prosecute, or otherwise take adverse action against an individual based on their actual, potential, perceived, or alleged pregnancy outcomes. Nor shall the state penalize, prosecute, or otherwise take adverse action against someone for aiding or assisting a pregnant individual in exercising their right to reproductive freedom with their voluntary consent.

The new law also provides in part in its statement of policy:

Although the abortion rights movement has historically centered on women in our advocacy, that must no longer be the case and it is critical that we recognize that transgender, nonbinary, and gender expansive people also get pregnant and require abortion care.

Consistent with this, references to "woman" in the state's abortion laws were changed to "pregnant individual". 

Settlement Agreement Reached In Arleen's Flowers LGBT Discrimination Case

ADF announced yesterday that a settlement agreement (full text) has been reached in the long-running Arleen's Flowers litigation. In the case, the Washington state Supreme Court held that a florist shop's refusal to provide flowers for a same-sex wedding constitutes sexual orientation discrimination under the Washington Law Against Discrimination, and that enforcement of the law does not violate the constitutional rights of the floral shop owner. In July, the U.S. Supreme Court denied review (see prior posting). According to ADF:

A settlement agreement ... ends a lawsuit brought against floral artist Barronelle Stutzman nearly a decade ago without forcing her to act against her religious beliefs or to pay potentially ruinous attorneys’ fees.... Stutzman has chosen to retire so her beloved employees can run her business, Arlene’s Flowers. She will withdraw a pending petition for rehearing at the U.S. Supreme Court and make a payment of only $5,000 to the two men who sued her.

Stutzman, 77 and a great-grandmother, explained that she is at peace because the settlement allows her to finally retire with her conscience intact, and she knows that the legal effort to protect the artistic freedoms of creative professionals will continue in cases like 303 Creative v. Elenis, which the U.S. Supreme Court could decide to hear soon.

Tri-City Herald reports on the settlement.

Cert. Filed In Case Of Football Coach Seeking To Pray On Field

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Kennedy v. Bremerton School District, (US Sup. Ct., cert. filed 9/14/2021). In the case, the U.S. 9th Circuit Court of Appeals upheld the firing of a high school football coach who insisted on prominently praying at the 50-yard line immediately after football games. A divided 9th Circuit denied en banc review. (See prior posting.) First Liberty issued a press release announcing the filing of the petition for review.

Washington Conversion Therapy Ban Upheld

In Tingley v. Ferguson, (WD WA, Aug. 30, 2021), a Washington federal district court dismissed First Amendment challenges by a family therapist to a Washington state statute that prohibits licensed counselors in treating minors from engaging in "conversion therapy" aimed at changing sexual orientation or gender identity. The court held that performing conversion therapy is "conduct", not speech. According to the court, the law still allows therapists to discuss the option of conversion therapy by someone else-- including someone within the exception for practitioners operating under the auspices of religious organizations. The court also rejected plaintiff's religious free exercise argument, saying in part:

[T]he object of the Conversion Law is not to infringe upon or restrict practices because of their religious motivation.... Plaintiff is free to express and exercise his religious beliefs; he is merely prohibited from engaging in a specific type of conduct while acting as a counselor.

Cert. Filed In Case On Washington State's Religious Exemption From Anti-Discrimination Law

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Seattle's Union Gospel Mission v. Woods, (cert. filed 8/2/2020). In the case, Washington state's Supreme Court held that, as applied, the religious and non-profit exemption to the state's anti-discrimination law may be unconstitutional. Plaintiff in the case was denied employment as a staff attorney by a Christian legal aid program for the homeless because he was in a same-sex relationship. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

9th Circuit: Church Has Standing To Challenge Washington Abortion Coverage Mandate

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (9th Cir., July 22, 2021), the U.S. 9th Circuit Court of Appeals reversed a Washington federal district court's dismissal for lack of standing of a challenge to a Washington statute that requires health insurance plans that cover maternity care to also cover abortions. The court said in part:

The state’s argument that Cedar Park did not suffer an injury because SB 6219 did not prevent Kaiser Permanente from continuing to offer a plan that restricted abortion coverage fails because Kaiser Permanente reasonably understood the plain language of SB 6219 as precluding such restrictions, and it acted accordingly when it removed the restrictions from Cedar Park’s health plan.

The court affirmed the dismissal of the church's equal protection claim. ADF issued a press release announcing the decision.

9th Circuit Denies En Banc Review Of Football Coach's Challenge To Dismissal For On-Field Prayer

In Kennedy v. Bremerton School District, (9th Cir., July 19, 2021), the U.S. 9th Circuit Court of Appeals rejected a sua sponte request for a rehearing en banc in the case of a high school football coach who insisted on prominently praying at the 50-yard line immediately after football games. A 3-judge panel upheld upheld a Washington state school board's dismissal of the coach. (See prior posting.) The denial of the rehearing however generated six concurring and dissenting opinions and statements spanning 92 pages, reflecting sharp differences. Judge Smith's opinion concurring in the denial of review says in part:

Unlike Odysseus, who was able to resist the seductive song of the Sirens by being tied to a mast and having his shipmates stop their ears with bees’ wax, our colleague, Judge O’Scannlain, appears to have succumbed to the Siren song of a deceitful narrative of this case spun by counsel for Appellant, to the effect that Joseph Kennedy, a Bremerton High School (BHS) football coach, was disciplined for holding silent, private prayers. That narrative is false.... [T]he reader should know the following basic truth ab initio: Kennedy was never disciplined by BHS for offering silent, private prayers.

Senior Judge O'Scannlain, joined in full by 5 other judges and in part by two more, said in part:

It is axiomatic that teachers do not “shed” their First Amendment protections “at the schoolhouse gate.”... Yet the opinion in this case obliterates such constitutional protections by announcing a new rule that any speech by a public school teacher or coach, while on the clock and in earshot of others, is subject to plenary control by the government. Indeed, we are told that, from the moment public high school football coach Joseph Kennedy arrives at work until the very last of his players has gone home after a game, the Free Speech Clause simply doesn’t apply to him.

First Liberty announced that an appeal will be filed with the U.S. Supreme Court.

9th Circuit Hears Oral Arguments In Washington Insurance Coverage Mandate Challenge

On Friday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Cedar Park Assembly of God v. Kreidler. (Video of full oral arguments.) In the case, a Washington federal district court refused to grant a preliminary injunction to a church that objects to Washington's SB 6219 which requires health insurance plans that cover maternity care to also cover abortions. A Washington federal district court had dismissed the suit on standing grounds. (See prior posting.) Washington Examiner reports on the oral arguments.

Street Preacher Lacks Standing To Challenge COVID Restrictions

 In Gibson v. City of Vancouver, (WD WA, June 7, 2021), a Washington federal district court dismissed for lack of standing a suit by a street preacher who claims that Washington state's COVID-19 restrictions unconstitutionally target religious activities. He also contended that the City of Vancouver selectively targets religious protesters for arrest for violating COVID-19 restrictions. The court said in part:

The Defendants accurately describe this matter as a case in search of a controversy. There has been no specific or credible threat of enforcement, and there is no history of enforcement. Gibson’s claims were never ripe, and he did not and does not have standing to assert them....

Denial of Insurance Coverage For Gender Dysphoria Violates ACA

In Pritchard v. Blue Cross Blue Shield of Illinois, (WD WA, May 4, 2021), a Washington federal district court held that denying a transgender male insurance coverage for treatment of gender dysphoria violates the sex discrimination ban in the Affordable Care Act.  At issue was an exclusion in the Catholic Health Initiatives Health Plan that prevented a minor covered by his mother's health insurance from receiving an implant that delivers puberty-delaying hormones and a mastectomy.  The ACA incorporates the anti-discrimination provisions of Title IX. The court also rejected defendant's RFRA defense, concluding that RFRA only applies in suits in which the government is a party.

9th Circuit: Football Coach's Past-Game Prayers Violate Establishment Clause

In Kennedy v. Bremerton School District, (9th Cir., March 18, 2021), the U.S. 9th Circuit Court of Appeals upheld a Washington state school board's dismissal of a high school football coach who insisted on prominently praying at the 50-yard line immediately after football games. The long-running high-profile case was before the 9th Circuit for the second time. (See prior posting.) The court issued a Summary of its decision along with the opinion, saying in part:

The panel held that the record before it and binding Supreme Court precedent compelled the conclusion that the District would have violated the Establishment Clause by allowing Kennedy to engage in the religious activity he sought. Kennedy’s attempts to draw nationwide attention to his challenge to the District showed that he was not engaging in private prayer. Instead, he was engaging in public speech of an overtly religious nature while performing his job duties. The District tried to accommodate Kennedy, but that was spurned by Kennedy insisting that he be allowed to pray immediately after the conclusion of each game, potentially surrounded by students. The panel held that the district court correctly granted summary judgment to the District on Kennedy’s free speech and free exercise claims.

The panel held that Kennedy’s Title VII claims alleging failure to rehire, disparate treatment, failure to accommodate and retaliation also failed.

Judge Christen also issued a concurring opinion, joined by Judge Nelson. Friendly Atheist blog has more on the decision. [Thanks to Mel Kaufman for the lead.]

Washington Supreme Court Rejects Facial Challenge To Discrimination Exemption for Non-Profits

In Woods v. Seattle's Union Gospel Mission, (WA Sup. Ct., March 4, 2021), the state of Washington's Supreme Court rejected a facial challenge to an exemption in the state's anti-discrimination law for religious and other non-profit corporations. Plaintiff was denied employment by a Christian legal aid program for the homeless because he was in a same-sex relationship. The majority held that because reasonable grounds exist to distinguish non-profit corporations from others, the exemption does not, on its face, violate Article I, §12 of the state constitution that prohibits any law granting privileges or immunities which are not equally available to all. The majority concluded, however, that the law may be unconstitutional as applied to plaintiff in this case.  It held that courts should look to federal case law on the ministerial exception doctrine to determine this:

Here, Woods seeks employment as a lawyer with SUGM. SUGM has rejected his application because it maintains that all employees’ first duty is to minister. In order to balance Woods’ fundamental rights with the religious protections guaranteed to SUGM, we hold that article I, section 12 is not offended if WLAD’s exception for religious organizations is applied concerning the claims of a “minister” as defined by Our Lady of Guadalupe and Hosanna-Tabor.

Justice Yu filed a concurring opinion which was joined by Chief Justice Gonzalez. Justice Stephens filed an opinion dissenting in part, joined by Justice Fairhurst.

9th Circuit Hears Oral Arguments In Case of High School Coach Who Prayed At 50-Yard Line

Earlier this week (Jan. 25), the U.S. 9th Circuit Court of Appeals heard oral arguments in Kennedy v. Bremerton School District. (Audio, Video of full oral arguments.) In the case, a Washington federal district court dismissed 1st Amendment and Title VII claims by a high school football coach who was suspended when he insisted on prominently praying at the 50-yard line immediately after football games. The court concluded that his prayer amounted to endorsement of religion by the school district in violation of the Establishment Clause. (See prior posting.) First Liberty issued a press release on Monday's oral argument.

Hypothetical Religious Objections On LGBTQ Issues Cannot Disqualify Foster Parents

In Blais v. Hunter, (ED WA, Oct. 8, 2020), a Washington federal district court held that the Washington Department of Children, Youth and Families cannot use its policy to protect LGBTQ+ foster children as the sole determining factor in rejecting a foster family that expresses sincere religious beliefs that would preclude them from supporting gender transition in hypothetical future situation.  Plaintiffs in the case were a Seventh Day Adventist family that wanted to care for their great-granddaughter who might be removed from her home. The court concluded that the Department’s policies “operate as a religious gerrymander and are thus not neutral as applied to the Blaises and others similarly situated.” [Thanks to Eugene Volokh via Religionlaw for the lead.]

Cert. Petition Filed In Hierarchical Deference Case

 A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Schulz v. Presbytery of  Seattle. In the case, a Washington state appellate court upheld a trial court's deference to decisions of the Administrative Commission set up by the Presbyterian Church USA's representative in connection with disputes regarding a break-away congregation.  (See prior posting.) The petition for review frames the Question Presented as:

In a dispute between a local congregation and its former denomination over ownership of property to which the local congregation holds legal title, does the First Amendment permit courts to apply a rule of absolute deference to assertions of ownership by the denomination?

[Thanks to Paul Harold for the lead.]

Ban On Sex Offender Attending Church Services Is Upheld

In State of Washington v. Duschene, (WA App., June 8, 2020), a Washington state appellate court upheld the sentence and community custody provisions imposed on a convicted sex offender.  Among other things, defendant argued that the condition that prohibits him from entering areas where children's activities regularly occur violates his 1st Amendment free exercise rights because this prohibits him from attending church services.  The court disagreed, saying in part:

A burden on the exercise of religion ... must withstand strict scrutiny.... Once the complaining party establishes a coercive effect, the burden of proof shifts to the government to show the restrictions serve a compelling state interest and are the least restrictive means for achieving that interest....

The record shows that DuSchene has regularly attended church in the past, and that he considers himself a Christian. But he does not argue that he sincerely holds his religious convictions, that those convictions are central to the practice of his religion, or that the challenged enactment burdens the free exercise of his religion. Thus, he has not established that the condition has a coercive effect, and his challenge on this ground fails.

Church Lacks Standing To Challenge State's Insurance Coverage Mandate

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, May 6, 2020), a Washington federal district court refused to grant a preliminary injunction to a church that objects to Washington's SB 6219 which requires all health insurance plans to cover all FDA-approved contraceptive products. The court concluded that the church lacks standing to pursue the claim, saying in part:

Cedar Park has failed to establish that any injury is fairly traceable to SB 6219. When Cedar Park needed to renew its health insurance plan on September 1, 2019, there was no product in the marketplace that complied with Cedar Park’s preferred requirements. Cedar Park has failed to establish that this absence of a product was because of SB 6219. In fact, Cedar Park’s previous plan did not conform to its beliefs despite SB 6219 not having legal effect when Cedar Park purchased that plan. Now, Providence offers what appears to be an acceptable product despite the continued applicability of SB 6219. Thus, Cedar Park has failed to establish an injury or an injury that is fairly traceable to SB 6219.

Supervision of Sex Offender's Church Attendance Upheld

In State of Washington v. Mecham, (WA App., March 2, 2020), a Washington state appellate court rejected a free exercise challenge to a community custody condition imposed on a convicted sex offender. Under a negotiated plea agreement, appellant, among other things, was prohibited from attending church services unless accompanied and supervised by an adult aware of his offenses and approved by his Community Corrections Officer.  In upholding the prohibition, the court said in part:

Mecham’s crime involved abusing an unsupervised child at church. The day of the offense, Mecham was attending church with his mother, father, and older brother. Mecham has failed to show that these members of his family, who presumably know his offense, will be unable to supervise his attendance at church. Thus, from the record, Mecham will be able to continue attending church services in the same manner as before his conviction.

Further, even if the restriction unduly burdened Mecham’s free exercise, the restriction satisfies strict scrutiny....

The State has a compelling interest to protect families who attend church services from Mecham. Mecham committed the offense in a church. He abused a seven-year-old in the church playroom while the congregation enjoyed lunch upstairs....  Mecham needs supervision to prevent this type of contact.

Cert. Filed In Florist's Refusal To Provide Same-Sex Wedding Flowers

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Arlene's Flowers, Inc. v. State of Washington, (Sup. Ct., cert. filed 9/11/2019).  In the long-running case, the Washington state Supreme Court held that a florist shop's refusal to provide flowers for a same-sex wedding constitutes sexual orientation discrimination under the Washington Law Against Discrimination, and that enforcement of the law does not violate the constitutional rights of the floral shop owner. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

State Has Compelling Interest In Licensing of Medical and Naturopathy Practice

In Jimenez v. Washington State Department of Health, (WA App., Aug. 5, 2019), a Washington state appellate court affirmed a finding by the health department that a marriage and family therapist engaged in the unlicensed practice of medicine and naturopathy. The court rejected Arely Jiminez's claim that the health department violated her free exercise rights protected by the U.S. and Washington state constitutions.  The court said in art:

Here, even assuming that the Department’s actions have infringed on Jimenez’s right to freedom of religion, the Department has a compelling public health and welfare interest in limiting the practice of medicine and naturopathy to individuals licensed by the Department. To the extent that Jimenez’s practice of Medicine without a Washington license burdened her exercise of religion, the Department’s interest in public health and safety justified any infringement of her constitutional rights.