Court Issues TRO Preventing Enforcement Of Texas Governor's Order On Gender Transition Treatment For Minors

As reported in an ACLU press release, earlier this week a Texas state trial court in Jane Doe v. Abbott, (TX Dist. Ct., March 2, 2022), issued a temporary restraining order barring enforcement against the named plaintiffs of Texas Gov. Greg Abbott's order to investigate for child abuse parents who facilitate gender reassignment treatment for minors. (See prior posting.) The court said in part:

[T]he Court finds Plaintiffs will suffer irreparable injury unless Defendants are immediately restrained.... Jane Doe has been placed on administrative leave at work and is at risk of losing her job and ... Jane, John and Mary Doe face the imminent and ongoing deprivation of their constitutional rights, the potential loss of necessary medical care, and the stigma attached to being the subject of an unfounded child abuse investigation.... [I]f placed on the Child Abuse Registry, Jane Doe could lose the ability to practice her profession and both Jane and John Doe could lose their ability to work with minors and volunteer in their community.

The Court further finds that Plaintiff Mooney could face civil suit by patients for failing to treat them in accordance with professional standards and loss of licensure for failing to follow her professional ethics if she complies with Defendants’ orders and actions. If she does not comply with Defendants’ orders, Dr. Mooney could face immediate criminal prosecution, as set forth in the Governor’s letter.

The court set a temporary injunction hearing for March 11.

Supreme Court In Muslim Surveillance Case Says State Secrets Doctrine Survives FISA

The U.S. Supreme Court today, in a unanimous opinion written by Justice Alito issued a narrow decision in Federal Bureau of Investigation v. Fazaga, (Sup. Ct., March 4, 2022). The case involves a class action lawsuit filed by Muslims in California who claim they were subjected to illegal surveillance. The district court dismissed the suit under the "state secrets" doctrine.  The 9th Circuit reversed holding that FISA displaced the state secrets doctrine. The Supreme Court held that FISA does not displace the state secrets doctrine, but did not resolve the parties disagreement about the interpretation of the relevant portion of FISA, nor did it decide whether the district court was correct in dismissing the suit on the pleadings. Deseret News reports on the decision.

Florida Passes 15-Week Abortion Ban

Yesterday the Florida legislature gave final passage to H5 (full text) which, among other things, prohibits abortions after 15 weeks of pregnancy except to save the mother's life, to avert serious risk of imminent substantial and irreversible physical impairment of a major bodily function, or in the case of a non-viable fetus that has a fatal abnormality. AP reports on the legislation.

Supreme Court Allows New Kentucky AG To Intervene To Defend Abortion Restrictions

Yesterday in Cameron v. EMW Women's Surgical Center, (Sup. Ct., March 3, 2022), the U.S. Supreme Court by an 8-1 vote ruled that the newly-elected Kentucky Attorney General (a Republican) should have been allowed to intervene to defend a Kentucky statute that banned D&E abortions prior to fetal demise. The newly elected Democratic governor (through a cabinet official) had agreed not to pursue appeals of the 6th Circuit's decision holding the law unconstitutional. Justice Alito wrote the opinion for the Court. Justice Thomas filed a concurring opinion. Justice Kagan, joined by Justice Breyer, concurred in the judgment, writing an opinion that reached the same conclusion as the majority, but through a different rationale. Only Justice Sotomayor dissented. CNN reports on the decision.

French High Court Upholds Ban On Lawyers Wearing Religious Garb In Court

France's Court of Cassation, one of the country's four courts of last resort, this week upheld a rule of the Lille bar association that provides: "the lawyer may not wear with the robe either decoration or sign ostensibly manifesting a religious, philosophical, community or political affiliation or opinion."  One of the litigants was a law student who wears a hijab.  In Appeal No. 20-20.185, (Ct. Cassation, March 2, 2022), the court said in part:

[T]he Court of Appeal held that the will of a bar association to impose on its members, when they appear before a court ... to wear a uniform suit contributes to ensuring the equality of lawyers and, through this, the equality of litigants..., that in order to protect their rights and freedoms, each lawyer, in the exercise of his functions of defense and representation, must erase what is personal to him and that the wearing of the costume of his profession without any sign distinctive is necessary to testify to its availability to any litigant.

24. The Court of Appeal ... rightly deduced that the prohibition ... was necessary in order to achieve the legitimate aim pursued, namely to protect the independence of the lawyer and ensure the right to a fair trial, but was also, without any discrimination, adequate and proportionate to the objective sought.

Jurist reports on the decision.

Stay Of Injunction Denied In Suit Over Religious Exemptions From Military's Vaccine Mandate

In Navy Seal 1 v. Austin, (MD FL, March 2, 2022), a Florida federal district court refused to stay, pending appeal, an injunction that had been granted to two service members who refused to comply with the military's COVID vaccine mandate.(See prior posting.)  In refusing the stay, the court said in part:

Although certainly not “given the task of running the Army,” the courts in the narrow instance of RFRA are given the task of ensuring that those who are given the task of running the Army (and the armed forces in general and every other component of the federal government) conform their actions to the governing law, to RFRA, to which the admirals and the generals and commandants are unquestionably subordinate — just like the President, the Speaker of the House, the Chief Justice, and every other person in the federal government.

Liberty Counsel issued a press release announcing the decision.

9th Circuit: Arizona's Free Exercise Statute Did Not Repeal Limit On Prisoner Suits

In Crespin v. State of Arizona, (9th Cir., March 3, 2022), the U.S. 9th Circuit Court of Appeals held that Arizona's Free Exercise of Religion Act did not repeal by implication a provision in Arizona's statutes that allows prisoners to sue for injuries suffered while incarcerated only if the inmate alleges serious physical injury.

Pro-Life Demonstrators Have Free Exercise Claim After Arrest For Violating COVID Order

In Global Impact Ministries v. Mecklenburg County, (WD NC, March 1, 2022), a North Carolina federal district court allowed pro-life demonstrators who were arrested for violating a county-city COVID stay-at-home order to move ahead with their free exercise, but not their free speech, claim for nominal damages. Discussing the free exercise claim, the court said in part:

Until fairly recently, the Supreme Court’s Free Exercise jurisprudence was highly deferential to COVID-19 regulations that burdened religion.... That deference changed dramatically with the Supreme Court’s decisions in Roman Catholic Diocese v. Cuomo ... and Tandon v. Newsom....

Plaintiffs allege that the Proclamation precluded them from engaging in pro-life activities, which Plaintiffs believe are a form of religious ministry.... They allege that shoppers at Home Depot were exempted from gathering limits, while their religiously motivated gatherings were prohibited.... Those activities are comparable for purposes of the Free Exercise analysis.... Because shopping indoors is likely to present greater risk for spreading COVID-19 than socially distanced sidewalk advocacy, strict scrutiny must apply here....

Moving to the free speech claim, the court said in part:

Defendant Mecklenburg County argues that the Proclamation was a valid content-neutral time, place, and manner restriction.... The Court agrees....

There is admittedly an obvious logical incongruity in finding that the Proclamation was not content-neutral for purposes of the free exercise claim, but content-neutral for purposes of the free speech claim. But neither the Supreme Court nor the Fourth Circuit has applied Tandon’s modified approach to content neutrality outside of the context of free exercise claims.

3rd Circuit: Foster Parents Have Religious Discrimination Claim For License Suspension Over Their Anti-LGBT Views

In Lasche v. State of New Jersey, (3rd Cir, March 1, 2022), the U.S. 3rd Circuit Court of Appeals reversed a district court's dismissal of a suit by former foster parents who alleged that their free exercise rights were infringed when their foster care license was suspended because of their religious opposition to same-sex marriage and their religious belief that homosexual conduct is sinful. The court remanded for further proceedings plaintiffs' claims under 42 USC §1983 and §1985(3).  It also remanded for further proceedings their claim that defendants' action violated New Jersey's Law Against Discrimination, finding that the state's Division of Child Protection and Permanency is a "place of public accommodation" under that law.

Court Concludes Church Did Not Fire Cook Who Cohabited Outside of Marriage

In Sandoval v. Madison Equal Opportunities Commission, (WI App, Feb. 24, 2022), a Wisconsin state appellate court upheld the finding of the Madison Equal Opportunities Commission that Capitoland Christian Center Church did not engage in employment discrimination against plaintiff who was employed as a cook by the church.  Plaintiff violated an agreement with the church that she would not cohabit with members of the opposite gender outside of wedlock. The court concluded that substantial evidence supported the Commission's finding that plaintiff resigned and was not fired nor constructively discharged. Christian Post reports on the decision.

Satanic Temple Sues Billboard Company Over Abortion Ritual Ads

The Satanic Temple filed suit last week in an Arkansas federal district court claiming that a billboard advertising company violated the Arkansas Civil Rights Act by refusing to perform under its contract  to put up billboards in Arkansas and Indiana that would spread awareness of TST's Satanic Abortion Ritual. Arkansas Code § 16-123-107 prohibits religious discrimination in contractual and property transactions. The complaint (full text) in The Satanic Temple, Inc. v. Lamar Media Company, (WD AR, filed 2/25/2022), alleges in part:

Part of this case will involve proving that TST’s Satanic Abortion Ritual is substantively different than getting a secular abortion, even though it involves the abortive act, such that this advertising contract contemplated a religious message.....

The Satanic Abortion Ritual is a ceremonious casting off of guilt, doubt, and mental discomfort that the member may be experiencing in connection with their election to abort the pregnancy.

The complaint also alleged breach of contract claims. Arkansas Democrat Gazette reported on the lawsuit.

5th Circuit Upholds Injunction Against Vaccine Mandate For Navy Seals With Religious Objections

In U.S. Navy Seals 1-26 v. Biden, (5th Cir., Feb. 28, 2022), the U.S. 5th Circuit Court of Appeals refused to grant the Navy a partial stay of an injunction issued by a Texas federal district court protecting 35 special warfare personnel who object on religious grounds to complying with the military's COVID vaccine mandate. The court said in part:

Defendants have not demonstrated “paramount interests” that justify vaccinating these 35 Plaintiffs against COVID-19 in violation of their religious beliefs. They insist that “given the small units and remote locations in which special-operations forces typically operate, military commanders have determined that unvaccinated service members are at significantly higher risk of becoming severely ill from COVID-19 and are therefore medically unqualified to deploy.” But “[r]outine [Naval Special Warfare] mission risks include everything from gunshot wounds, blast injuries, parachute accidents, dive injuries, aircraft emergencies, and vehicle rollovers to animal bites, swimming or diving in polluted waters, and breathing toxic chemical fumes.” There is no evidence that the Navy has evacuated anyone from such missions due to COVID-19 since it instituted the vaccine mandate, but Plaintiffs engage in life-threatening actions that may create risks of equal or greater magnitude than the virus.

Air Force Reservist With Religious Objection To COVID Vaccine Wins Injunction

In Poffenbarger v. Kendall, (SD OH, Feb. 28, 2022), an Ohio federal district court issued a preliminary injunction barring the Air Force from taking further adverse action against an Air Force reservist who refuses for religious reasons to comply with the military's COVID vaccine mandate.  The court concluded that plaintiff's rights under both RFRA and the free exercise clause were violated, saying in part:

Defendants have not shown that the Air Force’s action meets the least-restrictive-means test. The evidence indicates that the Air Force has granted virtually zero exemptions to the COVID-19 vaccine mandate on religious grounds.... At the same time, the Air Force has granted thousands of exemptions to the COVID-19 vaccine mandate on non-religious grounds.... This supports that less restrictive means of furthering the Air Force’s interests are being provided (even if only on a “temporary” basis) on non-religious grounds. And, the Defendants have not shown why such less restrictive means cannot likewise be provided to Poffenbarger.

Springfield News-Sun reports on the decision.

Cert. Denied In Ministerial Exception Case, With 4 Justices Expressing Concerns

The U.S. Supreme Court today denied review in Gordon College v. DeWeese-Boyd, (Docket No. 21-145, certiorari denied 2/28/2022) (Order List).  In the case, the Massachusetts Supreme Judicial Court held that the ministerial exception does not apply in a suit by an associate professor of social work at a private Christian liberal arts college who claims her promotion to full professor was denied because of her vocal opposition to the school's policies on LGBTQ individuals. (See prior posting.) Justice Alito, joined by Justices Thomas, Kavanaugh and Barrett, filed an opinion (full text) concurring in the denial of certiorari, but expressing concern with the lower court's decision, saying in part:

The Supreme Judicial Court of Massachusetts held that this “ministerial exception” did not apply to a professor at a religious college who “did not teach religion or religious texts,” but who was still expected to “integrate her Christian faith into her teaching and scholarship.” ...  Although the state court’s understanding of religious education is troubling, I concur in the denial of the petition for a writ of certiorari because the preliminary posture of the litigation would complicate our review. But in an appropriate future case, this Court may be required to resolve this important question of religious liberty....

What many faiths conceive of as “religious education” includes much more than instruction in explicitly religious doctrine or theology.... [M]any religious schools ask their teachers to “show students how to view the world through a faith-based lens,” even when teaching nominally secular subjects.

Recent Articles of Interest

From SSRN:

• Samuel L. Bray & Paul B. Miller, Christianity and Equity, (Oxford Handbook of Christianity and Law (Forthcoming)).
• Laura Portuondo, Effecting Free Exercise and Equal Protection, (72 Duke Law Journal (forthcoming 2023)).
• Gregory C. Sisk & Michael Heise, Cracks in the Wall: The Persistent Influence of Ideology in Establishment Clause Decisions, (Arizona State Law Journal (forthcoming 2022)).
• Frederick Mark Gedicks, Coase and Accommodation: A Reply, (Emory Law Journal, Vol. 71, Forthcoming 2022).
• Daniil Parenkov, On Guard of the Religious Diaspora: Catholic Lobby in the Field of US Migration Legislation, (December 28, 2021).
• Muhammad Munir, Maqāṣid Al-Sharī‘Ah or the Higher Objectives of Islamic Law: An Introduction, (December 27, 2021).

From SmartCILP:

• Symposium on Indirect Discrimination on the Basis of Religion, Vol. 34, Issue 2.

Texas AG and Governor Say Gender Transition Of Minors Can Constitute Child Abuse

On Feb. 18, Texas Attorney General Ken Paxton in Attorney General Opinion No. KP-401 concluded that a number of procedures used to treat gender dysphoria, i.e. assist transgender individuals in their gender transitions, can amount to child abuse under Texas law.  The 13-page Opinion states in part:

To the extent that these procedures and treatments could result in sterilization, they would deprive the child of the fundamental right to procreate, which supports a finding of child abuse under the Family Code....

Where, as a factual matter, one of these procedures or treatments cannot result in sterilization, a court would have to go through the process of evaluating, on a case-by-case basis, whether that procedure violates any of the provisions of the Family Code—and whether the procedure or treatment poses a similar threat or likelihood of substantial physical and emotional harm....

To the extent the specific procedures about which you ask may cause mental or emotional injury or physical injury within these provisions, they constitute abuse.

Further, the Legislature has explicitly defined “female genital mutilation” and made such act a state jail felony.... While the Legislature has not elsewhere defined the phrase “genital mutilation”, nor specifically for males of any age, the Legislature’s criminalization of a particular type of genital mutilation supports an argument that analogous procedures that include genital mutilation—potentially including gender reassignment surgeries—could constitute “abuse” under the Family Code’s broad and nonexhaustive examples of child abuse or neglect.

On Feb. 22, Texas Governor Greg Abbott sent a letter (full text) to the head of the Texas Department of Family and Protective Services, instructing them to promptly investigate cases covered by the Attorney General's Opinion.  the Governor said in part:

Texas law imposes reporting requirements upon all licensed professionals who have direct contact with children who may be subject to such abuse, including doctors, nurses, and teachers, and provides criminal penalties for failure to report such child abuse.... There are similar reporting requirements and criminal penalties for members of the general public....

Texas law also imposes a duty on DFPS to investigate the parents of a child who is subjected to these abusive gender-transitioning procedures, and on other state agencies to investigate licensed facilities where such procedures may occur.

Washington Post and Axios report on these developments.

Suit Challenges Latest Application Of Vermont Town Tuition Program

Suit was filed last week in a Vermont federal district court challenging the manner in which the state administers its Town Tuition Program that provides tuition reimbursement for students from towns that do not have their own public high schools. Reimbursement is available for attendance at private or out-of-district public high schools.  The complaint (full text) in Plaintiff E. W. v. French, (D VT, filed 2/24/2022), alleges that the state's current policy:

requires school districts to collect information on private religious schools' religious activity and to reduce or deny tuition benefits to account for religious schools' "religious worship" or "religious education."

The suit contends that this violates plaintiffs free exercise, free speech, Establishment Clause and due process rights, saying in part:

Defendants have no legitimate interest in enacting a greater separation of Church and State than is provided by the Establishment Clause of the First Amendment to the United States Constitution.

The Town Tuition Program has been the subject of extensive prior litigation. (See prior posting.) ADF issued a press release announcing the filing of the lawsuit.

9th Circuit: Qualified Immunity Requires Dismissal Of Inmate's Religious Meal Complaint

In Miller v. Acosta, (9th Cir., Feb. 25, 2022), a suit by an inmate, the U.S. 9th Circuit Court of Appeals held:

The district court properly determined that defendant Acosta was entitled to qualified immunity on Miller’s free exercise claim because Acosta’s conduct in refusing to provide Miller with his RMA [Religious Meat Alternative] meals when Miller did not show him a Religious Diet Card did not violate clearly established law.

Jackson Chosen By Biden For Supreme Court: Little Record On Religion Issues

President Biden has announced that he will nominate D.C. Circuit Judge Ketanji Brown Jackson to succeed Justice Breyer on the U.S. Supreme Court. She was a former clerk for Breyer.  Jackson has very little public record on church-state and free exercise issues.  I have been able to locate only one religion case (a Title VII case) in which she has written an opinion as either federal district or circuit court judge: Tyson v. Brennan, 306 F.Supp. 365) (D DC, Sept. 27, 2017).  It appears that the most extensive indication of her views on the religion clauses are found in her Responses to Questions for the Record in connection with her nomination to the D.C. Circuit (at pages 16, 18, 26, 27, 28, 35, 41, 49, 58, 63, 73, 74). There appears to be no reliable information available about Jackson's own religious affiliation.  Americans United for Separation of Church and State has issued a statement supporting her nomination.

Sexual Assault Victim Sues Tennessee Catholic Diocese

Suit was filed this week in a Tennessee state trial court against the Catholic Diocese of Knoxville and its bishop. A press release from plaintiff's attorneys summarizes the complaint (full text) in John Doe v. Catholic Diocese of Knoxville, (TN Cir. Ct., filed 2/22/2022):

A lawsuit filed in the Circuit Court for Knox County, Tennessee alleges that the Catholic Diocese of Knoxville and its bishop, Richard Stika, negligently failed to stop a diocesan seminarian from raping and sexual harassing a fellow employee in 2019, then spread false and defamatory rumors about the employee to protect itself and the seminarian, a friend of the bishop.