Kamala Harris: Abortion Bans Without Rape and Incest Exceptions Are "Immoral"

Vice President Kamala Harris spoke yesterday in Des Moines, Iowa at a Roundtable on Reproductive Rights. (Full text of her remarks). She said in part:

We have seen what I would consider and do consider, as a former prosecutor, to be an immoral approach to survivors of rape or incest where, in states, there is even no exception after an individual has survived such an act of violation to their body and then, by their state, being deprived of the ability, after that, to make other decisions about their body.  It’s immoral. 

And let’s be clear: On this issue, one does not have to abandon their faith or deeply held beliefs to agree the government should not be telling her or any individual what to do with their body. 

Let them make that decision if they choose with their priest, with their pastor, with their rabbi, with whomever.  But the government should not be telling her what to do with her own body.

North Dakota Supreme Court: State Constitution Protects Right to Abortion to Save Life or Health of Mother

In Wrigley v. Romanick, (ND Sup. Ct., March 16, 2023), the North Dakota Supreme Court refused to vacate a trial court's preliminary injunction that barred enforcement of the state's 2007 abortion ban whose effectiveness was to be triggered by the overruling of Roe v. Wade. In particular, the court concluded that the absence of an exception in the abortion ban for preserving the health of the mother was a critical defect in the law.  The court said in part:

The North Dakota Constitution explicitly provides all citizens of North Dakota the right of enjoying and defending life and pursuing and obtaining safety. These rights implicitly include the right to obtain an abortion to preserve the woman’s life or health....

Fundamental rights are those which are deeply rooted in history and tradition and are implicit in the concept of ordered liberty.... North Dakota’s history and traditions, as well as the plain language of its Constitution, establish that the right of a woman to receive an abortion to preserve her life or health was implicit in North Dakota’s concept of ordered liberty before, during, and at the time of statehood....

Justice Tufte filed a concurring opinion, saying in part:

At this time we consider only the preliminary injunction, and we need not decide the constitutionally necessary scope of any health exception.

Justice McEvers, joined by Justice Crothers and Judge Narum, filed an opinion concurring specially, and saying in part:

I write separately to explain how and why the rights protected under the North Dakota Constitution may be broader than those protected under the United States Constitution.

NPR reports on the decision.

Albany, NY Catholic Diocese Files for Bankruptcy Reoganization

The Roman Catholic Diocese of Albany, New York announced that on Wednesday it filed a petition for bankruptcy reorganization in federal bankruptcy court.  The Bishop's letter to the faithful said in part:

We maintain global mediation would have provided the most equitable distribution of the Diocese’s limited financial resources but as more Child Victims Act (CVA) cases reached large settlements, those limited funds have been depleted. The Chapter 11 filing is the best way, at this point, to ensure that all Victim/Survivors with pending CVA litigation will receive some compensation. The decision to file was not arrived at easily, but we, as a Church, can get through this and grow stronger together.

To date, the Diocese has been named in more than 400 CVA lawsuits which were filed between Aug. 15, 2019, and Aug. 14, 2021. With the assistance of the Court and demonstrating its ongoing good faith commitment to Victim/Survivor claims, the Diocese has separately settled more than 50 CVA cases....

This filing also puts on hold the lawsuits involving the St Clare’s pensioners. That was not our purpose for filing. While many questions remain regarding the St. Clare’s pension fund, the plight of the pensioners is of great concern to me. The St. Clare’s pensioners are certainly close to my heart and, as I would do with anyone in a difficult situation, I offer my pastoral care.

CNA reports on the bankruptcy filing.

Suit Challenges Connecticut's Elimination of Religious Exemption from School Vaccination Requirement

Suit was filed last week in a Connecticut federal district court by a Christian preschool and the church that sponsors it challenging Connecticut's removal of religious exemptions from its statute requiring various vaccinations for preschool children. The complaint (full text) in Milford Christian Church v. Russell-Tucker, (D CT, filed 3/6/2023) alleges that the requirement violates plaintiffs' free exercise, free speech, freedom of association, equal protection, and child rearing rights. It alleges in part:

63. Conn. Gen. Stat. § 10-204a denies a generally available benefit – education– to children if their parents do not abandon their religious beliefs while affording the same benefit to parents and children who assert a medical exemption.

64. Adding insult to injury, Conn. Gen. Stat. § 10-204a prevents parents from seeking alternative education options for their children by applying the same mandate to private schools, daycares, and pre-schools, including those operated by churches and religious organizations.

65. In other words, Conn. Gen. Stat. § 10-204a forces parents to either renounce their religious beliefs and vaccinate their children or homeschool their children– something that many parents cannot do – thus depriving them any educational opportunities.

Christian Post reports on the lawsuit.

Catholic Diocese of Santa Rosa, California Files for Bankruptcy

Last week, the Catholic Diocese of Santa Rosa, California (the state's smallest Catholic diocese) announced that it is filing for Chapter 11 bankruptcy reorganization. According to the Diocese, the decision was made because of the large number of child sex abuse lawsuits filed against it during a 3-year window created by the California legislature for suits to be filed even though the statute of limitations had previously run. Some of the lawsuits relate to conduct that occurred as long as 60 years ago. The Diocese said in part:

These cases are too numerous to settle individually and so they have accumulated until the closing of the three-year window. Now that the window is closed, we have received notice of at least 160 claims and we have information that perhaps more than 200 claims have been filed in total against the Diocese.

 ... [I]n 2003 the Diocese faced similar circumstances but with many fewer cases. At that time excess property was sold, money borrowed and the Diocese paid approximately $12 million dollars with an additional $19 million coming from insurance. Since then, the Diocese has expended an additional $4 million on individual settlements. Now, facing at least 160 new cases, with excess property depleted, with insurance for many of the years either non-existent or exhausted it is impossible to see any way forward without recourse to the bankruptcy protections our Country makes available....

[W]e are deeply saddened that so many have endured abuse in the past and that the scourge of child sexual abuse is a part of our diocesan history. The present action of the Diocese is necessary and through this process we hope to provide for those who have come forward and who are yet to come forward at least some compensation for the harms they have endured.

Links to all the legal filings in the case are available at this website. Catholic News Agency reports on the bankruptcy filing.

6th Circuit: Employees Have No Free Exercise Claim Against Company That Denied Them a Religious Exemption from Vaccine Mandate

In Ciraci v. J.M. Smucker Company, (6th Cir., March 14, 2023), the U.S. 6th Circuit Court of Appeals held that employees of a company that sells food products to the federal government may not assert a 1st Amendment free-exercise claim against the company for denying them a religious exemption from a COVID vaccine mandate imposed by the company after the federal government required government contractors to do so. The court said in part:

Constitutional guarantees conventionally apply only to entities that exercise sovereign power, such as federal, state, or local governments.... Smucker’s may be a big company. But it is not a sovereign. Even so, did Smucker’s become a federal actor—did it exercise sovereign power?—for purposes of this free-exercise claim when it sold products to the federal government and when it imposed the vaccine mandate because the federal government required it to do so as a federal contractor? No, as the district court correctly held. We affirm....

Smucker’s does not perform a traditional, exclusive public function; it has not acted jointly with the government or entwined itself with it; and the government did not compel it to deny anyone an exemption. That Smucker’s acted in compliance with a federal law and that Smucker’s served as a federal contractor—the only facts alleged in the claimants’ complaint—do not by themselves make the company a government actor.

The court went on to suggest that even if the company were a state actor, there may be no cause of action against them:

To the extent the claimants seek damages directly under the First Amendment against a federal official, they must rely on the kind of implied cause of action created by Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). But extending Bivens is “disfavored” ...

That leaves claimants’ demands for a declaratory judgment, reinstatement, and other equitable relief. In equity, it is true, claimants sometimes may “sue to enjoin unconstitutional actions by state and federal officers” even in the absence of a statutory cause of action.... But today’s claimants seek more than a prohibitory injunction. They seek reinstatement and other affirmative relief. It is not clear whether, as a matter of historical equitable practice, we may infer, imply, or create a cause of action for such relief. But because the parties have not briefed or argued these points and because they do not go to our jurisdiction, we need not decide them today.

Massachusetts Supreme Court: Church May Relocate Cremated Remains Over Objection of Families

In Church of the Holy Spirit of Wayland v. Heinrich, (MA Sup. Jud. Ct., March 14, 202), the Massachusetts Supreme Judicial Court rejected claims by families attempting to prevent the disinterment and relocation of cremated remains sought by a church in order to facilitate the sale of its churchyard property. The court said in part:

This case concerns the scope of rights conveyed by a set of burial certificates, as sold by a church to its parishioners. After dwindling membership compelled the Church of the Holy Spirit of Wayland ... to close and sell its property, do the certificates permit the church to disinter and relocate the cremated remains buried on that property despite the objections of the decedents' families?

Although we acknowledge the sensitive -- even sacred -- nature of the subject matter of this dispute, we conclude that the burial certificates' unambiguous language permits the disinterment and that no common-law right held by the families prevents it.

Good News Clubs Sue to Get Access for After School Programs

Suit was filed last week in a Rhode Island federal district court by the Good News Clubs contending that their 1st and 14th Amendment rights were violated when Providence, RI school officials blocked approval of their use of school facilities for after-school programs. The complaint (full text) in Child Evangelism Fellowship of Rhode Island, Inc. v. Providence Public School District, (D RI, filed 3/10/2023) alleges in part:

CEF Rhode Island and its proposed Good News Clubs are similarly situated to the other organizations the District allows to host their afterschool programs in District elementary schools because all the organizations provide teaching and activities to develop things like confidence, character, leadership, and life skills in their participants. CEF Rhode Island, however, offers its programming from a Christian religious viewpoint, while the other organizations offer their similar programming from a nonreligious viewpoint....

The increasingly burdensome requirements the District has imposed on CEF Rhode Island as conditions to access for its Good News Clubs are discriminatory and pretextual disguises for the District’s hostility towards CEF Rhode Island’s Christian identity, message, and viewpoint.

Liberty Counsel issued a press release announcing the filing of the lawsuit.

Fatwa Council Condemns Hamas Action In Gaza

 The Islamic Fatwa Council, a non-governmental religious body based in Najaf in Iraq, describes itself as

... the first global governing judicial body specializing in deducing Fatwas from indisputable and moderate Islamic references. The IFC transcends borders and continents as its jurists and legal scholars come from all Islamic denominations and sects, reinforcing the credibility and legality of the issued verdict. It is a representative legal body of all sects of Islam, critical for denouncing and opposing all forms of violent verdicts and hateful public statements.

Last week, the Council issued a Fatwa condemning Hamas as a terrorist organization. Fatwa F2301 (full text) provides in part:

 ... The Islamic Fatwa Council has reviewed extensive documentation of Hamas behavior toward Palestinians in Gaza.... Our findings ... result in our ruling that:

A) Hamas bears responsibility for its own reign of corruption and terror against Palestinian civilians within Gaza;

B) It is prohibited to pray for, join, support, finance, or fight on behalf of Hamas-- an entity that adheres to the ideology of the Muslim Brotherhood movement.

Furthermore, the Islamic Fatwa Council joins the UAE Fatwa Council and the Council of Senior Scholars of Saudi Arabia in declaring the Muslim Brotherhood movement and all of its branches as terrorist organizations that defame Islam and operate in opposition to mainstream Islamic unity, theology and jurisprudence.

Fox News reports on the Council's action. Fatwa Council officials comment on the Fatwa.

Suit Challenges California's Exclusion of Religious Schools from Funding for Students With Disabilities

Suit was filed yesterday in a California federal district court by six Jewish parents and two Orthodox Jewish day schools challenging the exclusion of sectarian schools from receiving funds made available to California under the Individuals with Disabilities Education Act. The complaint (full text) in Loffman v. California Department of Education, (CD CA, filed 3/13/2023), alleges in part:

12. Defendants’ administration and implementation of California law excludes Plaintiffs from the generally available public funding necessary to provide an education to students with disabilities.

13. Plaintiffs merely seek to educate and care for children with disabilities and practice their Jewish faith on an equal basis with other California citizens. 

14. As the Supreme Court recently held, they are entitled to equal treatment because “religious schools and the families whose children attend them . . . ‘are members of the community too.’” Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2262 (2020). Excluding Plaintiffs from government programs—for no other reason than the fact that they are  religious—is “odious to our Constitution and cannot stand.”

Becket issued a press release announcing the filing of the lawsuit.

COVID Order Violated Priest's Free Exercise Rights

 In Urso v. Mohammad, (D CT, March 10, 2023), a Catholic priest sued a town's health director over COVID orders that cancelled religious gatherings and congregational prayers. The court concluded that the health Directive violated plaintiff's free exercise rights, but left for trial the question of whether plaintiff suffered an injury, saying in part:

[N]ot all secular businesses in the Town of Orange were closed, and the Directive itself is unquestionably stricter than the Governor’s Executive Orders, which imposed capacity limits on religious institutions in line with those imposed on other secular businesses, and never cancelled all religious services completely.... In Agudath Israel, the Second Circuit applied strict scrutiny when businesses such as retail stores, news media, financial services, and construction were not as restricted as houses of religious worship.... Thus, the Second Circuit has already made the determination there is no meaningful difference between a retail store and a house of worship in terms of COVID-19 risk.... Regardless of how well intentioned it might have been and the difficult circumstances under which it was issued, the Directive “expressly singles out religion for less favored treatment” by subjecting religious services to complete cancellation while not imposing such strict measures on other businesses regardless of their size or the length of time people were gathering there ... and is thus subject to strict scrutiny....

The Court determines therefore as a matter of law both that the Directive is subject to strict scrutiny, and that it fails that scrutiny, thus violating the First Amendment....

The court concluded that plaintiff's equal protection claim is tied to the free exercise claim.  The court found that claims for injunctive and declaratory relief were now moot. It rejected plaintiff's Establishment Clause claim saying that the health directive did not "establish religion or espouse a religious message." It rejected plaintiff's free speech and freedom of assembly claims, relying on the Supreme Court's 1905 decision in Jacobson v. Massachusetts.

Rastafarian Police Officer's Free Exercise Claim May Move Ahead

In Taylor v. City of New Haven, (D CT, March 10, 2023), a Rastafarian police officer sued claiming religious and disability discrimination after being denied an exemption from the police department's grooming policy. While dismissing a half dozen of plaintiff's claims largely on procedural and jurisdictional grounds, the court permitted him to move ahead with his First Amendment free exercise claim for damages, saying in part:

The plaintiff has alleged facts sufficient to show that the general order at issue burdened his religious conduct..., and that the order lacked general applicability, both because it invited individualized exemptions... and because the City of New Haven permitted secular conduct contrary to the general order.... Thus, the plaintiff has alleged facts which, if true, demonstrate that the general order is subject to strict scrutiny and that the government can achieve its interests in a manner that does not burden religion. Consequently, for purposes of this stage of the case, the plaintiff has shown that he had a right protected by the First Amendment.

Recent Articles of Interest

From SSRN:

• Robert C. Blitt, Justifying War: Russia’s 2020 Constitutional Amendments and the Invasion of Ukraine, (March 1, 2023).
• Samuel D. Brunson & Philip Hackney, A More Capacious Concept of Church, (Loyola of Los Angeles Law Review, Vol. 56, No. 4, forthcoming).
• Ekhorutomwen Gabriel Ekhator, Noise Nuisance and Religious Freedom: Balancing Religious Activities and Religious Freedom when Activities of Religious Houses Bring Discomfort to the Neighourhood, (November 1, 2023).
• Nicole B. Godfrey, The Religious Freedom Restoration Act, Federal Prison Officials, and the Doctrinal Dinosaur of Qualified Immunity, (New York University Law Review, forthcoming).
• Amanda Reid, Roadside Memorial Crosses: Highway to Healing or Crossroads of Conflict, (in Equal Protection v. Religious Freedom: Clashing American Rights, (2022).
• Nqobizwe Mvelo Ngema & Desab Iyer, Penalty for Committing Fornication & Adultery (Zina) in Islamic Law as a Violation of Freedom from Torture, (OIDA International Journal of Sustainable Development, Vol. 15, No. 06, pp. 11-18, 2022).
• Jiangfeng Hao, On the Logic of the Rule of Law Applicable to Euthanasia (February 20, 2023).
• Linda Sugin, Tax Benefits and Fairness in K–12 Education, (111 Georgetown Law Journal Online 140 (2023)).

From SSRN (Abortion Rights):

• Caroline Mala Corbin, Religious Liberty for All? A Religious Right to Abortion, (Wisconsin Law Review, Forthcoming).
• Paula A. Monopoli, Situating Dobbs, (14 ConLawNOW 45 (2023)).
• Malinda L. Seymore, Social Costs of Dobbs' Pro-Adoption Agenda, (57 U.C. Davis Law Review ___ (Forthcoming 2023)).
• I. Glenn Cohen, Rebecca Reingold & Lawrence O. Gostin, Supreme Court Ruling on the Texas Abortion Law: Beginning to Unravel Roe v Wade, (The Journal of the American Medical Association, published online January 28, 2022, at E1-E2).

Latest Attempt to Prevent City from Removing Cross from Public Park Fails On Procedural Grounds

Lion's Club of Albany, California v. City of Albany, (ND CA, March 9, 2023), is the latest installment in the ongoing litigation over the removal of a 28-foot tall, illuminated Latin cross located in a park which the city has purchased. (See prior related posting.) The Lioin's Club has an easement allowing it access to the cross to maintain it. After a prior decision finding that the city violated the Establishment Clause when it purchased the park and left the cross standing, the city instituted eminent domain proceedings in state court to acquire the easement so it could remove the cross. The state trial court judge granted the city prejudgment possession of the easement so the city could take down the cross and store it in a safe place pending the outcome of the eminent domain proceedings. The Lion's Club asked the state court of appeals to stay the trial court's order. That petition was denied for technical reasons that could have been cured. Instead, the Lion's Club came back to federal court seeking a temporary restraining order to prohibit removal of the cross.  In this decision, the court denied that request invoking the Rooker-Feldman doctrine which requires a federal court to dismiss a case when the plaintiff is essentially attempting to appeal a state court decision through the lower federal courts rather than by filing appeals through state court channels.

Michigan Legislature Repeals 1931 Criminal Abortion Ban

The Michigan legislature on Wednesday gave final passage to HB-4006 (full text) which repeals Section 750.14 and 750.15 of the Michigan Penal Code. These sections, which were enacted in 1931, criminalize abortion and require pharmacies to keep records of purchasers of abortion medications and of physicians prescribing them. The bill now goes to Governor Gretchen Whitmer for her signature. It is expected that she will sign the bill. WZZM13 News reports on the bill. An injunction against enforcement of Section 750.14 had previously been issued by the state Court of Claims (see prior posting) and the section was effectively overridden by a state constitutional amendment guaranteeing reproductive freedom passed by Michigan voters last November.

Christian University Sues Over Termination of Student Teaching Arraangements

Suit was filed yesterday in an Arizona federal district court by a Christian university alleging that a public school district violated free exercise, free speech and other federal constitutional provisions as well as Arizona law when it terminated the student teacher agreement between the university and the school district.  The complaint (full text) in Arizona Christian University v. Washington Elementary School District No. 6, (D AZ, riled 3/9/2023) alleges in part:

For the last eleven years, Arizona Christian and Washington Elementary School District, the largest elementary school district in Arizona, had a mutually beneficial partnership where students in Arizona Christian’s Elementary Education degree programs would student teach and shadow teachers in the School District....

Despite there being zero complaints about an Arizona Christian student teacher or alumnus, the School District decided to terminate its relationship with Arizona Christian and its students solely because of their religious status and beliefs on biblical marriage and sexuality.

ADF issued a press release announcing the filing of the lawsuit.

UPDATE: A settlement agreement (full text) was reached on May 3, 2023, under which the parties will enter a revised student teacher agreement. World News Group reports on the settlement.

Wyoming Legislature Passes Abortion Bans; Governor Undecided on Whether to Sign Them

On March 3, the Wyoming legislature gave final passage to two bills outlawing most abortions. HB 152 (full text) outlaws medical and surgical abortions with several exceptions. Exceptions include ectopic pregnancy, treatment of the woman for cancer or another disease where the medical treatment may be fatal to the unborn baby, preventing the death or substantial risk of death of the mother, and incest or sexual assault (which are to be reported to law enforcement). SF 109 (full text) prohibits prescribing or distributing any abortion drug, with exceptions for imminent physical peril that endangers the woman's life or health, and for rape or sexual assault. WyoFile reports that Governor Mark Gordon is still deciding whether or not to veto either or both bills.

UPDATE: Gov. Gordon signed SF 109 and allowed HB 152 to become law without his signature.

Satanic Temple Is Not Limited Purpose Public Figure for Defamation Law Purposes

In The Satanic Temple, Inc. v. Newsweek Magazine LLC, (SD NY, March 8, 2023), a defamation suit by The Satanic Temple (TST) over a Newsweek article about it, a New York federal district court concluded that TST is not a limited purpose public figure for purposes of defamation law.  The court said in part:

,,, Plaintiff “advocates for the religious rights of its membership, and must sometimes take legal action to protect those rights.... Defendants contend that this activity is sufficient to make Plaintiff a limited purpose public figure because the “advocacy tends to attract attention.”...

But attention alone is not enough. Plaintiff must have “invited public attention to [its] views in an effort to influence others.” ... Defendants offer no evidence to show that Plaintiff “openly invited media attention,” by “issuing press releases, making public statements [or] addressing ‘open letters.’”... Plaintiff initiated lawsuits for the sole purpose of protecting the religious rights of its members, not to influence the minds of others. One does not voluntarily inject itself into a public controversy simply by filing a lawsuit to vindicate its rights, even if doing so incidentally attracts public attention.

Nevertheless, the court found that most of the statements cited by TST were not defamatory. Only a statement claiming that TST covered up sexual abuse survived the motion to dismiss. Volokh Conspiracy reports on the decision.

Michigan Legislature Adds LGBTQ Protections to State Civil Rights Act

The Michigan legislature today gave final approval to Senate Bill 4 (full text) which adds "sexual orientation" and "gender identity or expression" to the anti-discrimination provisions of the Elliott-Larsen Civil Rights Act. The bill now goes to Governor Gretchen Whitmer for her signature. Detroit News reports that she has promised to sign the bill into law. During its consideration of the bill, the Michigan Senate rejected a number of proposed religious liberty amendments. The Michigan Supreme Court previously held that existing language of the Act bars sexual orientation discrimination. The state Court of Claims has held that it also bars discrimination on the basis of gender identity. (See prior posting.) Senate Bill 4 now makes these holdings explicit.

European Court Says Russian Regulation of Proselytizing Violated Human Rights Convention

In Ossewaarde v. Russia, (ECHR, March 7, 2023), the European Court of Human Rights held that legal restrictions imposed by Russia in 2016 on religious proselytizing violated the rights of a Baptist pastor who was a U.S. national living in Russia.  The court found violations of Articles 9 (freedom religion) and 14 (prohibition of discrimination) of the European Convention on Human Rights.  The court said in part:

By requiring prior authorisation from a duly constituted religious association and excluding private homes from the list of places where the right to impart information about religion may be exercised, the new regulation has left no room for people in the applicant’s situation who were engaged in individual evangelism. The requirement of prior authorisation also eliminated the possibility of spontaneous religious discussion among members and non-members of one’s religion and burdened religious expression with restrictions greater than those applicable to other types of expression.

...  [S]o long as the new restrictions did not regulate the content of the religious expression or the manner of its delivery, they were not fit to protect society from “hate speech” or to shield vulnerable persons from improper methods of proselytism which ... could have been legitimate aims for the regulation of missionary activities.... [T]he Court finds that the need for such new restrictions, in respect of which the applicant was sanctioned for non-compliance, has not been convincingly established. Accordingly, the interference with the applicant’s right to freedom of religion on account of his missionary activities has not been shown to pursue any “pressing social need”....

While the application of the additional penalty of expulsion exclusively to non-nationals may be objectively justified by the fact that it cannot be applied to nationals, the Court finds no justification for the considerably higher minimum fines applicable to non‑nationals in respect of the same offence. The difference in treatment also appears hard to reconcile with the provisions of Russia’s Religions Act which posits that non-nationals lawfully present in Russia may exercise the right to freedom of religion on the same conditions as Russian nationals.

The court also issued a press release summarizing the decision.