Showing posts with label West Virginia. Show all posts
Showing posts with label West Virginia. Show all posts

Thursday, March 21, 2024

4th Circuit: Inmate's Claim for Religious Diet Should Move Forward

In Pendleton v. Jividen, (4th Cir., March 20, 2024), the U.S. 4th Circuit Court of Appeals held that a West Virginia federal district court should not have dismissed a RLUIPA religious diet claim brought by an inmate who follows the Sufi Original Traditions of Islam. Those Traditions allow him to only eat fruit, vegetables and certain fish. The court said in part:

In 2014 ... prison officials introduced a new diet program for those with religious dietary restrictions. Under that program, a single “religious special diet” is served—one designed to meet the needs of all faiths by following the rules of the most diet-restrictive ones. With all forms of meat off the table, the diet uses soy as its primary protein source....

Although Pendleton’s religious beliefs do not forbid consumption of soy as such, the complaint alleges that Pendleton experiences vomiting, abdominal pain, constipation, and other digestive issues when he does so. And this, the complaint asserts, is of “religious significance” to Pendleton because his inability to properly digest soy renders such foods "Haram" for him....

Defendants insist that Pendleton could obtain a meat-free and soy-free diet by obtaining test results showing he has a medically significant allergy to soy. And, the defendants continue, because Pendleton has refused to submit to allergy testing ... he has not plausibly alleged a substantial burden on his religious practice. That argument fails too. Pendleton need not produce documentation of his alleged soy allergy to survive a motion to dismiss.... Even if Pendleton took an allergy test and that test was negative, it would not eliminate his religiously based objections to eating soy.  For that reason, Pendleton has plausibly alleged a substantial burden on his religious practices, and the district court erred in concluding otherwise.

Friday, October 27, 2023

West Virginia School Settles Suit Over Religious Activities

The Freedom From Religion Foundation announced yesterday the settlement of a suit against a West Virginia school, its principal and a substitute teacher for scheduling and hosting an evangelical Christian revival as an assembly in the school auditorium during homeroom period in violation of the Establishment Clause.  Yesterday the parties jointly dismissed Mays v. Cabell County Board of Education, (SD WV, dismissed 10/26/2023).. According to FFRF:

As part of a settlement, the board agreed to amend its policies relating to religion in schools. The board voted on Oct. 17 to adopt the policy revisions. Significantly, those changes require annual training of teachers about religion in school. School administrators also are tasked with greater monitoring of school events. Finally, the policy provides greater detail to ensure that employees do not initiate or lead students in religious activities. [Full text of amended policy.]

The settlement also includes nominal damages and attorneys' fees of $175,000 paid by the school board's insurers. (See prior related posting.)

Friday, August 25, 2023

West Virginia's Ban on Prescribing Mifepristone By Telemedicine Is Pre-Empted By FDA Rules

In GenBioPro, Inc. v. Sorsaia,, (D WV, Aug. 24, 2023), a West Virginia federal district court dismissed a challenge to West Virginia abortion restrictions that are no longer in effect. The restrictions will go back into effect only if provisions of the more recent Unborn Child Protection Act (UCPA) are held unconstitutional. The court held that neither federal statutes nor FDA rules pre-empt state restrictions on when abortions may be performed. However, the court refused to rule further on the UCPA provisions, saying in part:

[T]he Court has not found that the UCPA is unconstitutional. As none of these prior restrictions are currently in effect, this Court may not issue an advisory opinion as to the constitutionality of a law not presently operative.

The court also rejected arguments that state restrictions on the sale of mifepristone violate the Commerce Clause, saying in part:

[T]he Supreme Court and Courts of Appeals have repeatedly affirmed that morality-based product bans do not intrinsically offend the dormant Commerce Clause. 

However the court did find that West Virginia's ban on prescribing mifepristone by telemedicine, which is still in effect, is pre-empted by FDA rules allowing telemedicine prescriptions for the drug. The Hill reports on the decision.

Wednesday, March 01, 2023

West Virginia Legislature Passes Religious Freedom Act

The West Virginia legislature yesterday gave final passage to the Equal Protection for Religion Act (full text). The bill bars state action that substantially burdens a person's exercise of religion unless there is a compelling governmental interest and the least restrictive means are used. It also prohibits treating religious conduct more restrictively than other conduct of reasonably comparable risk, or more restrictively than comparable conduct for economic reasons. It provides for injunctive or declaratory relief and recovery of costs and attorneys' fees. Among other things, the bill does not "protect actions or decisions to end the life of any human being, born or unborn..." The bill which now goes to Governor Jim Justice for his signature passed the Senate in accelerated fashion after it voted 30-3 to suspend its rules that normally require three readings. AP and the legislature's Wrap Up blog report on the bill's passage.

Thursday, December 15, 2022

Suit Challenging School's Scheduling of Revival As An Assembly May Move Ahead

In Mays v. Cabell County Board of Education, (SD WV, Dec. 13, 2022), a West Virginia federal district court refused to dismiss a suit against a school, its principal and a substitute teacher for scheduling and hosting an evangelical Christian revival as an assembly in the school auditorium during homeroom period in violation of the Establishment Clause.  The court said in part:

At the very least, the allegations against Principal Gleason and Mr. Jones are that they organized and scheduled a revival that was initiated and sponsored by adults, not students. The revival also was given preferential treatment as it was scheduled during a time and in a location that was unavailable to other groups who wanted to bring in outside speakers. Moreover, Mr. Jones’ entire class and another class were taken to the revival without being told what it was, and Mr. Jones would not let S.F. leave once he was there.... 

Here, Principal Gleason and Mr. Jones encourage the Court to simply accept their version of events and conclude that the Nik Walker Ministries was sponsored by the FCA, and the FCA was allowed to hold an assembly during non-instructional time pursuant to a neutral policy in a limited public forum. Mr. Jones also states he did not require the students in his classroom to attend the revival. However, as this Court previously expressed, the Amended Complaint directly contradicts Defendants’ narrative, creating factual issues that should be explored through discovery, not resolved on a motion to dismiss.

WOWKTV reports on the decision.

Wednesday, September 14, 2022

West Virginia Legislature Passes Restrictive Abortion Bill

The West Virginia legislature yesterday gave final passage to House Bill 302 (full text) which outlaws most abortions. It provides in part:

An abortion may not be performed or induced or be attempted to be performed or induced unless in the reasonable medical judgment of a licensed medical professional: (A) there exists a nonmedically viable fetus; (B) there exists an ectopic pregnancy; or (C) there exists a medical emergency.

In addition ..., an abortion may be performed by a licensed medical professional when:(1) the patient is a victim of sexual assault or incest; (2) a report is made to a qualified law enforcement officer; (3) the licensed medical professional determines that probable gestational age of fetus has not exceed 14 weeks; and (4) the licensed medical professional complies with the provisions of §16-2R-5 [minors and reporting provisions].

A prison sentence of 3 to 10 years is prescribed for anyone (other than the mother) who violates the abortion prohibitions. West Virginia Public Broadcasting reports on the bill. [Thanks to Scott Mange for the lead.]

Thursday, May 26, 2022

Suit Challenging Bible In Schools Program Is Settled

An Order of Dismissal was entered last week in Freedom From Religion Foundation v. Mercer County Board of Education, (SD WV, May 16, 2022). According to Christian Post, in January 2019 the school board ended the Bible In The Schools program that was being challenged in the lawsuit. According to an FFRF press release:

The Mercer County Board of Education, through its insurance coverage, agreed to pay $225,000 to cover the costs and attorneys fees of the plaintiffs. Those payments will reimburse two private law firms and FFRF for hundreds of hours of time spent by attorneys litigating the case.

Wednesday, May 18, 2022

City Council's Opening Of Meetings With Lord's Prayer Violates Establishment Clause

In Cobranchi v. City of Parkersburg, (D WV, May 17, 2022), a West Virginia federal district court held that Parkersburg's City Council violated the Establishment Clause by opening each of its meetings with The Lord's Prayer.  The court said in part:

The City Council’s prayer practice most clearly runs afoul of the Fourth Circuit’s concern with identifying the government with a single preferred religious sect. As noted, the Lord’s Prayer is sourced from a biblical translation of the gospel of Matthew, and the version utilized by the town council includes a concluding Christian doxology.... [I]t seems apparent that a reasonable observer to City Council meetings would be aware of the origin, or at the least Christian nature, of the prayer. By continually reciting, over a number of years, the same prayer clearly identifiable with a particular faith, without the opportunity for other faiths to be heard, the City Council impermissibly identified itself with a preferred religion.

FFRF issued a press release announcing the decision.

Friday, February 18, 2022

Suit Challenges School Assembly Featuring Evangelical Minister

Suit was filed yesterday in a West Virginia federal district court by students at Huntington High School and their parents alleging that a school assembly featuring Nik Walker, a Christian evangelical minister, violated the Establishment Clause.  The complaint (full text) in Mays v. Cabell County Board of Education, (SD WV, filed 2/17/2022), alleges in part:

Most recently, schools within Cabell County sponsored religious revivals during the school day. At the behest of adult evangelists, Huntington High School held an assembly for students that sought to convert students to evangelical Christianity. Some students were forced to attend. Regardless of whether attendance is mandatory or voluntary, the Defendants violate the First Amendment by permitting, coordinating, and encouraging students to attend an adult-led worship service and revival at their school during the school day.

Freedom From Religion Foundation, in a press release announcing the lawsuit, reports that on Feb. 9, more than 100 students staged a walkout in protest of the assembly.

 

Friday, July 23, 2021

Court Enjoins Enforcement of West Virginia's Ban On Transgender Girls Being On Girl's Sports Teams

In B.P.J. v. West Virginia State Board of Education, (D WV, July 21, 2021), a West Virginia federal district court granted a preliminary injunction to an 11-year old transgender girl who was kept off the girl's cross country and track teams under a West Virginia statute that bars students whose biological sex is male from girls' teams. The court found a likelihood of success on plaintiff's equal protection and Title IX claims, saying in part:

B.P.J. has not undergone endogenous puberty and will not so long as she remains on her prescribed puberty blocking drugs. At this preliminary stage, B.P.J. has shown that she will not have any inherent physical advantage over the girls she would compete against on the girls’ cross country and track teams....

As applied to B.P.J., Section 18-2-25d is not substantially related to protecting girls’ opportunities in athletics or their physical safety when participating in athletics. I find that B.P.J. is likely to succeed on the merits of her equal protection claim.

Courthouse News Service reports on the decision.

Thursday, April 29, 2021

New West Virginia Law Bans Transgender Women From Women's Competitive Athletic Teams

The Hill reports that West Virginia Governor Jim Justice yesterday signed into law HB 3293 (full text) which bars transgender girls or women from competing on women's athletic teams at public middle or high schools or at state colleges and universities. The ban is limited to teams where selection is based on competitive skill or the activity involved is a contact sport.

Wednesday, March 31, 2021

Challenge To Bible In Schools Program Survives Motion To Dismiss

In Freedom From Religion Foundation, Inc. v. Mercer County Board of Education, (SD WV, March 26, 2021), a West Virginia federal district court denied a motion to dismiss filed by a school principal in an Establishment Clause challenge to the county's Bible in the Schools program. The court also found that it is impossible to determine at this stage of the case whether the principal is entitled to qualified immunity.

Tuesday, November 17, 2020

West Virginia Supreme Court Exempts Religious Schools and Camps From Deceptive Practices Ban

 In State of West Virginia ex rel. Morrisey v. Diocese of Wheeling-Charleston, (WV Sup. Ct., Nov. 16, 2020), the West Virginia Supreme Court held that the deceptive practices provisions of the state's Consumer Credit and Protection Act cannot be applied to educational and recreational services offered by a religious institution. It concluded that state statutory provisions protecting religious schools and institutions lead to this result.  It also held that 

the entire relationship between Church and State arising from the Attorney General’s application of the Act constitute an excessive entanglement of  Church and State...

According to the court:

[T]he Attorney General claimed that the Diocese had violated the deceptive practices provisions when it knowingly employed admitted and credibly-accused sexual abusers in its schools and camps but neither disclosed that material information to consumers nor warned them of the alleged dangers inherent to the educational and recreational services it provided. The Attorney General also claimed that the Diocese had made material misrepresentations regarding the safety of those services....

Justice Workman filed a dissenting opinion, saying in part:

The majority opinion is transparently result-oriented which explains its logical incoherence and sins of omission. The issue before the Court is one of fairness and honesty in commercial communications to the public---potential purchasers of goods and services. The fundamental question involves matters of unfair or deceptive acts or practices in advertising or selling and in advertising based on false promises. That is all. Nothing else is at issue. This case has absolutely nothing to do with the free exercise or expression of religious thought and nothing to do with regulating religious institutions in the sense of excessive State entanglement....

In conclusion, the majority opinion slams the door shut on enforcement of even the most blatant unfair or deceptive commercial conduct on the grounds that false or misleading advertising was perpetrated by a religious institution.... Ironically, religious institutions have been given an unfair marketplace advantage with respect to their commercial enterprises. 

AP reports on the decision.

Thursday, April 02, 2020

Challenge To School Bible Program Is Dismissed After Program Is Terminated

In Freedom From Religion Foundation, Inc. v. Mercer County Board of Education, (SD WV. March 31, 2020), a West Virginia federal district court in a 25-page opinion dismissed as moot a suit to enjoin Mercer County's Bible in the Schools program.  The Board terminated the 70-year old program after litigation challenging it had continued for two years.

Thursday, March 05, 2020

West Virginia Legislature Enacts Law To Permit Courses On The Bible

The West Virginia legislature yesterday gave final passage to House Bill 4780 (full text) which authorizes public schools to offer elective social studies courses on the Bible in grades 9 and above. Such courses are to:
Teach students knowledge of biblical content, characters, poetry, and narratives that are prerequisites to understanding the development of American society and culture, including literature, art, music, mores, oratory, and public policy....
The bill now goes to Governor Jim Justice for his signature.  WV Metro News reports on the legislation.

Friday, November 08, 2019

State False Advertising Ban Does Not Apply To Catholic Schools

In State of West Virginia ex. rel. Morrisey v. Diocese of Wheeling-Charleston, (WV Cir. Ct., Nov. 6, 2019), a West Virginia Trial Court held that West Virginia's Consumer Credit and Protection Act does not apply to religious institutions' advertising or sale of educational or recreational services.  In the case, plaintiffs contended that the Diocese engaged in deceptive acts or practices by failing to disclose that in the past it had knowingly employed some priests and laity that had sexually abused children while it advertises a safe learning environment in its schools and camps. The court also held that application of the Act to religious schools would involve an unconstitutional excessive entanglement of church and state. After reaching its conclusions, the trial court stayed the action and certified the questions raised in the case to the West Virginia Supreme Court. The Intelligencer reports on the decision. [Thanks to Mark Chopko for the lead.]

Wednesday, March 20, 2019

West Virginia Sues Catholic Diocese For Past Abuse of Minors

As reported by The Hill, West Virginia's Attorney General announced yesterday that the state had filed a civil suit against the Catholic Diocese of Wheeling-Charleston.  The case grew out of Pennsylvania's Statewide Investigating Grand Jury Report on sexual abuse of minors. (See prior posting.)  Some of the priests identified in that Report had at one time been employed by the West Virginia diocese. The complaint (full text) in State of West Virginia v. Diocese of Wheeling Charleston, (WV Cir. Ct., filed 3/19/2019), alleges that the Diocese knowingly employed admitted and credibly accused sexual abusers and hired priests and lay employees without adequate background checks. The suit was brought under West Virginia's Consumer Credit and Protection Act and contends that the Diocese falsely advertised that it provided a safe learning environment and intentionally concealed the danger in its educational and recreational services.

Sunday, March 03, 2019

Anti-Muslim Display In West Virginia Capitol Sparks Controversy

WV News and NBC News report on an anti-Muslim display and pamphlets set up in the West Virginia Capitol Rotunda as part of "WVGOP Day" by the organization ACT for America. According to NBC:
The display featured a picture of the World Trade Center in New York City as a fireball exploded from the one of the Twin Towers, set above a picture of Democratic Rep. Ilhan Omar, who is Muslim.
"'Never forget' - you said. . ." read a caption on the first picture. "I am the proof - you have forgotten," read the caption under the picture of Omar, who is wearing a hijab....
Several Democrats strongly objected to the display, and got into an argument with the House's sergeant at arms, Anne Lieberman, who allegedly remarked that "All Muslims are terrorists." Lieberman resigned Friday night.  Republican House speaker Roger Hanshaw issued a statement saying in part:
The West Virginia House of Delegates unequivocally rejects hate in all of its forms.

Saturday, January 19, 2019

Claim of Religious Targeting Against Child Welfare Worker Dismissed

In Glasser v. McCumbers, 2019 U.S. Dist. LEXIS 7541 (SD WV, Jan 15, 2019), a West Virginia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 219514, Nov. 30, 2018) and dismissed a suit against a Child Protective Services worker.  Plaintiff, whose child was removed from his custody, alleged that he was was subjected to an Abuse and Neglect charge in part because of the contempt for which the CPS worker Melissa McCumbers held his religious communal living conditions.  The court concluded that McCumbers failed to establish a substantial burden on the exercise of his religion.

Wednesday, December 19, 2018

4th Circuit Says Student Has Standing To Challenge Bible In Schools Program

In Deal v. Mercer Coounty Board of Education, (4th Cir., Dec. 17, 2018), the U.S. 4th Circuit Court of Appeals reversed a West Virginia federal district court and held that a student who had withdrawn from the offending school system (and her parent) had standing to challenge the school system's Bible in the Schools program. It also held that the claim was ripe for adjudication. The Beckley (WV) Register Herald reports on the decision. [case title corrected from earlier post].