Ohio Enacts Conscience Protections For Medical Personnel and Institutions

On July 1, Ohio Governor Mike DeWine signed Am. Sub. House Bill 110, Ohio's Budget bill. (Signing ceremony.) Included in the 2438-page bill is a provision providing conscience protections for health care practitioners, institutions and insurers (at pg. 1453- 1455, enacting ORC Sec. 4743.10). The new section reads in part:

Notwithstanding any conflicting provision of the Revised Code, a medical practitioner, health care institution, or health care payer has the freedom to decline to perform, participate in, or pay for any health care service which violates the practitioner's, institution's, or payer's conscience as informed by the moral, ethical, or religious beliefs or principles held by the practitioner, institution, or payer. Exercise of the right of conscience is limited to conscience-based objections to a particular health care service.

... When possible and when the medical practitioner is willing, the medical practitioner shall seek to transfer the patient to a colleague who will provide the requested health care service. If participation in a transfer of care for a particular health care service violates the medical practitioner's beliefs or convictions or no willing colleague is identified, the patient shall be notified and provided the opportunity to seek an alternate medical practitioner. Upon patient request, the patient's medical records shall be promptly released to the patient.

The law provides for treble damage actions and injunctive relief for medical personnel where the new conscience provisions have been violated.

Metro Weekly reports on the enactment of this provision. [Thanks to Scott Mange for the lead.]

Wisconsin Supreme Court Interprets Statute Limiting School Aid To One Area School Of Each Denomination

In St. Augustine School v. Taylor, (WI Sup. Ct., July 2, 2021), the Wisconsin Supreme Court answered a certified question from the U.S. 7th Circuit Court of Appeals on how to apply a state statute regarding transportation aid to parochial schools. Under Wis. Stat. §§ 121.51 and 121.54, private schools can receive funding for transporting children to school, but in each attendance area only one school affiliated with each religious denomination can get funding. At issue in this case is how a court is to determine whether two Catholic schools in the same area are affiliated with the same denomination.  The court concluded:

... [I]n determining whether schools are "affiliated with the same religious denomination" pursuant to Wis. Stat. § 121.51, the Superintendent is not limited to consideration of a school's corporate documents exclusively. In conducting a neutral and secular inquiry, the Superintendent may also consider the professions of the school with regard to the school's self-identification and affiliation, but the Superintendent may not conduct any investigation or surveillance with respect to the school's religious beliefs, practices, or teachings.

Justice Roggensack filed a concurring opinion arguing that whether both schools are "affiliated" with the Archdiocese of Milwaukee depends on whether there is a mutual organizational relationship between the schools and the Archdiocese.

Justice Hagedorn filed a concurring opinion, saying in part:

[A] "religious denomination" is an organizational entity, not a synonym for religious faith generally. Thus, when Wis. Stat. § 121.51(1) asks whether two schools are "affiliated with the same religious denomination," the question is not whether both schools share the same creed, but whether they are both affiliated with a particular kind of religious organization——a religious denomination.

Justice Bradley filed a dissenting opinion arguing that the provision denying benefits where two religious schools serve overlapping attendance areas is unconstitutional, saying in part:

On its face, § 121.51(1) denies a public benefit only to students attending religious schools in overlapping attendance areas. Private but secular schools located in overlapping attendance areas are not disqualified from receiving benefits on this basis. Denying an otherwise publicly available benefit on account of religious identity violates the First Amendment to the United States Constitution....

 Any governmental overriding of a religious school's profession of independence from the "religious denomination" of another school ... would "require us to rule that some religious adherents misunderstand their own religious beliefs. We think such an approach cannot be squared with the Constitution or with our precedents, and that it would cast the Judiciary in a role that [courts] were never intended to play."

Supreme Court GVR's Amish Families' Challenge To Septic Tank Requirements

On Friday, in Mast v. Fillmore County, Minnesota, (Sup. Ct., July 2, 2021), the U.S. Supreme Court granted certiorari, summarily vacated the judgment of the Minnesota Court of Appeals, and remanded for consideration in light of the Court's recent decision in Fulton v. Philadelphia, the case of Amish families who object to state sewage system regulations. In the case, the Minnesota appellate court rejected claims by Swartzentruber Amish community members that laws requiring them to install septic systems to dispose of their waste water violate their rights under the Religious Land Use and Institutionalized Persons Act. (See prior posting.) 

Two Justices filed opinions concurring in the Court's action. Justice Alito in a brief opinion said that the lower court "plainly misinterpreted and misapplied" RLUIPA. Justice Gorsuch, in a longer concurring opinion, said in part:

Perhaps most notably, the County and courts below erred by treating the County’s general interest in sanitation regulations as “compelling” without reference to the specific application of those rules to this community. As Fulton explains, strict scrutiny demands “a more precise analysis.”

Supreme Court Denies Cert. In Case of Florist's Refusal To Provide Flowers For Same-Sex Wedding

On Friday, the U.S. Supreme Court, by a vote of 6-3, denied review in the long-running case of Arlene's Flowers, Inc. v. Washington,  (Docket No. 19-333, certiorari denied 7/2/2021). (Order List.) Justices Thomas, Alito and Gorsuch would have granted review.  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. (See prior posting.)

Supreme Court Grants Cert. In Maine Case On Tuition Vouchers For Sectarian Schools

The U.S. Supreme Court on Friday granted review in Carson v. Makin, (Docket No. 20-1088, certiorari granted 7/2/2021). (Order List.) In the case, the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that pay tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Schools that provide religious instruction do not qualify. (See prior posting.) The SCOTUSblog case page has links to the briefs and other filings in the case.

5th Circuit Refuses To Dismiss Suit Against Teacher Who Required Writing The Pledge

In Oliver v. Arnold, (5th Cir., June 29, 2021), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision  dismissed a high school teacher's appeal of a Texas federal district court's refusal to grant his summary judgment on qualified immunity grounds. The suit was brought by his former student who refused on religious grounds to recite the Pledge of Allegiance. The student alleged that the teacher attempted to require her to transcribe the Pledge and when she refused, he continued to retaliate against her in class. The majority said in part:

Because Arnold seeks to have this court resolve the very factual disputes that the district court found to be genuine and properly submitted for trial on the merits, which we do not have jurisdiction to do, we grant Oliver’s motion and DISMISS the appeal.

Judge Duncan dissented, saying in part:

[C]onsider the implications of the majority’s approach. It sends to trial a § 1983 claim based on a student’s objection to a written assignment, merely because there is a question about the teacher’s motive for giving it. One can imagine where this approach might lead. It is not a happy place.

Supreme Court Strikes Down California Donor Disclosure Rules

The U.S. Supreme Court today in Americans for Prosperity Foundation v. Bonta, (Sup. Ct., July 1,2021), held unconstitutional California's requirement that charitable organizations soliciting funds in the state disclose their major donors to the state Attorney General. In a 6-3 opinion written by Chief Justice Roberts, the Court said in part:

We are left to conclude that the Attorney General’s disclosure requirement imposes a widespread burden on donors’ associational rights. And this burden cannot be justified on the ground that the regime is narrowly tailored to investigating charitable wrongdoing, or that the State’s interest in administrative convenience is sufficiently important. We therefore hold that the up-front collection of Schedule Bs is facially unconstitutional, because it fails exacting scrutiny in “a substantial number of its applications . . . judged in relation to [its] plainly legitimate sweep.

Justice Thomas filed a concurring opinion. Justice Alito, joined by Justice Gorsuch, filed a concurring opinion. Justice Sotomayor, joined by Justices Breyer and Kagan, dissented, saying in part:

Today, the Court holds that reporting and disclosure requirements must be narrowly tailored even if a plaintiff demonstrates no burden at all. The same scrutiny the Court applied when NAACP members in the Jim Crow South did not want to disclose their membership for fear of reprisals and violence now applies equally in the case of donors only too happy to publicize their names across the websites and walls of the organizations they support. 

SCOTUSblog reports on the decision in greater detail.

Firefighter Loses Suit Over Refusal To Be Photographed

In Swartz v. Sylvester, (D MA, June 28, 2021), a Massachusetts federal district court dismissed a damage action brought by a firefighter who was disciplined after he refused, based on his personal Christian religious beliefs, to sit for an in -uniform photograph because it might be used for promotional purposes, and not just for ID tags and cards. The court said in part:

[T]he order was both facially neutral (and neutral in light of the totality of the circumstances) and generally applicable. Therefore, Sylvester must show only a “rational basis” for the policy....

The court also found qualified immunity:

even assuming that Swartz’s rights under the Free Exercise Clause were in fact violated, the legal contours of those rights were not sufficiently clear that a reasonable official would have understood that what he was doing violated them. 

UN Tribunal Sentences 2 For War Crimes In Bosnia

The Guardian reports that the International Criminal Tribunal for the former Yugoslavia today sentenced Jovica Stanišić, former head of Serbia's state security service (DB), and his deputy Franko “Frenki” Simatović who ran DB’s special forces, to 12 years in prison for war crimes.  The court found that they provided support to the Serbian paramilitary units that engaged in ethnic cleansing in the Bosnian town of Bosanski Šamac. According to The Guardian:

The ruling marks the first time senior Serbian officials from Slobodan Milošević’s regime in the 1990s have been found guilty for war crimes committed in Bosnia.

It has been the longest running international war crimes case in history. Stanišić and Simatović were first charged in 2003.

The men have already served 6 years in jail while trials and appeals were under way. This will be deducted from their sentence. They are expected to appeal.

North Carolina Governor Vetoes Race/ Sex/ Down Syndrome Abortion Ban

On June 25, North Carolina Governor Roy Cooper vetoed HB 453 which banned abortions unless the physician has determined that it is not being sought because of the race or sex of the fetus or because the fetus has Down Syndrome. In his veto message (full text), Cooper said: 

This bill gives the government control over what happens and what is said in the exam room between a woman and her doctor at a time she faces one of the most difficult decisions of her life. The bill is unconstitutional and it damages the doctor-patient relationship with an unprecedented governmental intrusion.

Gibraltar Voters Approve Liberalized Abortion Law

Last week, in a referendum, voters in Gibraltar by a vote of 7,656 to 4,520 approved the coming into force of Parliament's Crimes (Amendment) Act of 2019  The Act creates exceptions to the current near-total ban ban on abortions in the country. (Background on proposal.)  With certain restrictions, the law allows abortions in the first 12 weeks of pregnancy where there is risk to the physical or mental health of the mother. Abortion is allowed at any time where there is graver threat to the mother's life or health, or where the fetus has a fatal abnormality. Medical personnel may assert conscience objections to participating in abortions. AP reports on the referendum. [Thanks to Scott Mange for the lead.]

Cert. Denied In Religious Objection To Use of Social Security Number

The U.S. Supreme Court yesterday denied review in Ricks v. Idaho Contractors Board, (Docket No. 19-66, certiorari denied 6/28/2021). (Order List). In the case, an Idaho appeals court dismissed free exercise challenges to the state's requirement that an applicant for a contractor's license furnish his Social Security number.  Federal child support enforcement laws require states to collect Social Security numbers as part of applications for professional licenses if the state wishes to be eligible for certain federal grants.  George Ricks refused to furnish his Social Security number because of his religious belief that Social Security numbers are a form of the Biblical "mark of the beast." (See prior posting.) The Idaho Supreme Court denied a petition for review. Reuters reports on the case and the denial of certiorari, pointing out that the cert. petition asked the Supreme Court to overrule the Smith case.

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Supreme Court Denies Review In Transgender School Bathroom Case

With Justices Thomas and Alito dissenting, the U.S. Supreme Court today denied review in Gloucester County School Board v. Grim, (Docket No. 20-1163, certiorari denied 6/28/2021). (Order list.)  In the case, the U.S. 4th Circuit Court of Appeals, in a 2-1 decision, held that a Virginia school board violated the equal protection clause and Title IX in refusing to allow a transgender male to use the boys' school restrooms. CNN reports on the denial of certiorari.

Supreme Court Denies Cert. In Ecclesiastical Abstention Case

The U.S. Supreme Court today denied review in North American Mission Board v. McRaney, (Docket No. 20-1158, certiorari denied 6/28/2021). (Order List.) In the case the U.S. 5th Circuit Court of Appeals, by a vote of 9-8, denied en banc review of a panel decision that had refused to invoke the ecclesiastical abstention doctrine in a dispute between the Mission Board and its former executive director. (See prior posting.)

Recent Articles of Interest

From SSRN:

• William Leathers, Tandon in Light of Lukumi, and Smith in Light of Them Both: Value Judgments, Levels of Generality, and the General Applicability Standard, (June 9, 2021).
• Marc Spindelman, Bostock's Paradox: Textualism, Legal Justice, and the Constitution, (69 Buffalo Law Review 553 (2021)).

From Elsewhere:

• Symposium: Is This a Christian Nation?, Roger Williams University Law Review, Vol. 26, No. 2 (Spring 2021).

NY Governor Signs Gender Recognition Act

Yesterday, New York Governor Andrew Cuomo signed the Gender Recognition Act (full text of legislation).  The press release announcing the signing summarized the legislation:

The legislation (S.4402-B/A.5465-D) allows New Yorkers to use "X" as a non-binary sex designation on New York State driver's licenses. It also ensures that New Yorkers will be able to have their gender identity on official documents and provides protections to reduce discrimination against nonbinary and transgender New Yorkers by permitting name change and sex designation changes to be sealed more easily. Finally, the legislation will provide New Yorkers the ability to amend their birth certificates and use a designation of mother, father, or parent for the first time.

Random COVID Screening In Parochial Schools Not An Establishment Clause Violation

In In re King v. Board of Education of the City School District of the City of New York, (App. Div., June 24, 2021), a New York appellate court upheld randomized in-school Covid-19 screening tests for students in parochial and private schools. The court said in part:

We reject respondents' contention that section 912 must be construed as permitting only health screening tests which primarily benefit the child, so as to avoid running afoul of the Establishment Clause. Respondents do not explain how randomized in-school Covid-19 screening tests would have "a primary effect that advances religion," the touchstone of the Establishment Clause.

Cockfighting Ban Does Not Violate Establishment Clause

 In Hinds v. State of Texas,(TX App., June 24, 2021), a Texas state appellate court rejected petitioner's argument that the state's ban on cockfighting and on training animals for cockfighting violates the Establishment Clause. Petitioner, who was convicted of violating Texas Penal Code §42.105, according to the court, argued that:

paganism is a “nature worshiping religion” and that “animal rights laws are a clandestinely designed effort to institute laws respecting the establishment of the Pagan religion and animal worship.

EEOC Complaint Charges Stanford University With Anti-Jewish Hostile Work Environment

 As reported by The Forward, a complaint was filed last week with the EEOC (full text and summary of June 15 complaint) on behalf of a psychiatrist and a clinical social worker at Stanford University  Counseling & Psychological Services division charging that a hostile work environment has been created for Jewish employees.  The complaint alleges in part:

... Stanford University ... has permitted the DEI [Diversity, Equity and Inclusion] program to be perverted so that it accomplishes precisely the opposite of its intended aims....

... [T]he CAPS DEI program has maligned and marginalized Jews on the basis of religion, race and ethnic identity by castigating Jews as white, powerful and privileged members of society who contribute to systemic racism and denying and attempting to erase Jewish ancestral identity. In addition, the DEI program has denigrated the concept of Jewish victimhood and deliberately excluded anti-Semitism from the program’s agenda.... 

The CAPS DEI program... relies upon racial and ethnic stereotyping and scapegoating by describing all Jews as white or white-passing and therefore complicit in anti-Black racism. Jewish staff have been pressured to attend the DEI program’s racially segregated “whiteness accountability” affinity group, which was created for “staff who hold privilege via white identity” and “who are white identified, may be newly grappling with or realizing their white identity, or identify as or are perceived as white presenting or passing (aka seen as white by others even though you hold other identities).”