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

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

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

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

Recent Articles of Interest

From SSRN:

• Kent Roach, Trial by Jury and the Toronto 18, ((2021) 44 Manitoba Law Journal 221).
• Ira C. Lupu & Robert W. Tuttle, The Radical Uncertainty of Free Exercise Principles: A Comment on Fulton v. City of Philadelphia, (Forthcoming, American Constitution Society, Supreme Court Review (5th ed., 2020-21)).
• Jayanta Boruah & Junu Das, Conceptualizing Religious Offences and Understanding Secularism under Indian Legal System: An Empirical Study from Assam, (June 28, 2021).
• Rachel Casper, When Harassment at Work is Harassment at Church: Hostile Work Environments and the Ministerial Exception,  (University of Pennsylvania Journal of Law and Social Change, 2021).
• Muhammad Munir, Immunity, Independence and Accountability of Judges: An Islamic Law Perspective, (Majallah-yi Talim o Tahqiq, Vol. 3, Issue No. 2 April-June (2021), pp. 138-148).
• Tabrez Ebrahim, Intellectual Property Through a Non-Western Lens: Patents in Islamic Law, (Georgia State University Law Review, Vol. 37, No. 3, 2021).
• Ian Murray, How do we Regulate Activities within a Charity Law Framework Focused on Purposes?, ((2020) 26(2) Third Sector Review 65).
• Ian Murray & Rosemary Teele Langford, The Best Interests Duty and Corporate Charities — The Pursuit of Purpose, ((2021) 15 Journal of Equity 92).

From SmartCILP:

• Jonathan K. Van Patten, The Trial of Jesus, 65 South Dakota Law Review 285-316 (2020).
• Thomas E. Simmons, Saint Paul's Trial Narrative in Acts: Imperium Romanum vs. Vasileia Tou Theou, [Abstract],  65 South Dakota Law Review 317-370 (2020).

Food Ordinance Does Not Violate Rights Of Christians Distributing Sandwiches

In Redlich v. City of St. Louis, (ED MO, July 22, 2021), a Missouri federal magistrate judge dismissed a suit by two officers of the New Life Evangelical Center who, as part of their religious obligation, conduct outreach to the homeless.  They seek an injunction to prevent enforcement of a city ordinance that bans the distribution of “potentially hazardous foods” to the public without a temporary food permit. Plaintiffs were cited for distributing bologna sandwiches without a permit. The court rejected free exercise, free speech, freedom of association, equal protection and other challenges by plaintiffs, saying in part:

Plaintiffs have not established that the Ordinance constitutes a substantial burden on their free exercise rights. Assuming that food sharing is a central tenet of Plaintiffs’ religious beliefs, the evidence does not show that enforcement of the Ordinance prohibits Plaintiffs’ meaningful ability to adhere to their faith or denies Plaintiffs reasonable opportunities to engage in fundamental religious activities....

Plaintiffs show that the Ordinance certainly limits their ability to express their message in distributing sandwiches, but admit there is nothing about bologna sandwiches specifically that inherently expresses their religion. The facts show that in the alternative to obtaining a charitable feeding permit, Plaintiffs can and have distributed other types of food, bottled water, clothes, literature, and offered community and prayer without providing food subject to the Ordinance...

The record supports that the City enacted the Ordinance to adopt the National Food Code for public health and safety reasons, not to curtail a religious message. Thus, the Ordinance and its Amendment are content neutral and generally applicable....

Court Enjoins Arkansas Abortion Ban

In Little Rock Family Planning Services v. Jegley, (ED AR, July 20, 2021), an Arkansas federal district court issued a preliminary injunction against enforcing Arkansas Act 309 against pre-viability abortions. The statute bans all abortions, except when necessary to save the life of the pregnant woman.  The court said in part:

The Act thus “prohibit[s] any woman from making the ultimate decision to terminate her pregnancy before viability.”... Defendants do not make any argument to the contrary.... Instead, defendants argue that Roe and Casey were wrongly decided and that there is no constitutional right to abortion.... As a federal district court, this Court “is bound by the Supreme Court’s decisions in Casey.”... Accordingly, the Act is categorically unconstitutional, and plaintiffs have demonstrated that they are likely to succeed on the merits.

AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

Pennsylvania Supreme Court: Abuse Victim's Suit Against Diocese Barred By Limitations Statute

In Rice v. Diocese of Altoona-Johnstown, (PA Sup. Ct., July 21, 2021), the Pennsylvania Supreme Court in a 5-2 decision held that the statute of limitations bars a suit against the Diocese of Altoona-Johnstown and its bishops for their role in covering up and facilitating a series of sexual assaults by plaintiff's childhood priest. Suit was filed 35 years after the assaults. Plaintiff sued after a Pennsylvania grand jury report detailed clergy abuse. The court held that the discovery rule did not toll the statute:

Because her claims for damages against the Diocese are based on [her priest's] alleged conduct, she was on inquiry notice regarding other potentially liable actors, including the Diocese, as a matter of law.

The court also rejected a claim that fraudulent concealment tolled the statute:

Under our jurisprudence, before a plaintiff may invoke the principles of fraudulent concealment, the plaintiff must use reasonable diligence to investigate her claims.

Chief Justice Baer filed a concurring opinion. Justice Wecht, joined by Justice Todd, filed a dissenting opinion, saying in part:

The Majority’s conclusion that Rice failed to exercise reasonable diligence in investigating the Diocese’s role in her attack is based on nothing more than the fact that Rice knew that she was assaulted on church property by a priest employed by the Diocese.... This analysis dramatically oversimplifies the reasonable diligence inquiry.

AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

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.

Satanic Temple Can Move Ahead With Establishment Clause Claim As To Invocation Denial

In The Satanic Temple, Inc. v. City of Boston, MA (D MA, July 21, 2021), a Massachusetts federal district court refused to dismiss an Establishment Clause challenge to Boston's City Council invocation policy.  The court said in part:

TST reached out to the Boston City Council, which opens each of its meetings with a prayer, asking to give the invocation.... Defendant denied those requests, explaining that City Councilors choose speakers from their communities for their assigned weeks, and that TST could not lead the prayer without an invitation from a City Councilor.... Those denials were made after members of the Boston public objected to the possibility of TST opening a City Council session with a prayer and in the wake of a public outcry and 2,000-person protest after TST attempted to stage a “Black Mass” at Harvard....

Given the fact-specific nature of the inquiry into the constitutionality of legislative prayer schemes and the lack of controlling authority from the First Circuit or Supreme Court, this Court will not dismiss TST’s Establishment Clause claim at the motion to dismiss stage....  TST has plausibly raised a claim that Defendant’s prayer selection policy has discriminated against it in violation of the Establishment Clause.

The court dismissed plaintiff's free exercise, free speech and equal protection challenges. Universal Hub reports on the decision.

10th Circuit Rejects Qualified Immunity Defense In Suit By Native American Inmates

In Williams v. Hansen, (10th Cir., July 21, 2021), the U.S. 10th Circuit Court of Appeals held that a suit by Native American inmates against prison officials should not have been dismissed on qualified immunity grounds. Banning Native American religious services for at least 9 days and the use of tobacco for services for 30 days could have violated a clearly established constitutional right of prisoner to freely exercise their religious beliefs.

6th Circuit Hears Arguments On Masking Requirement For K-5 Religious Schools

Yesterday, the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Resurrection School v. Hertel. In the case, a Michigan federal district court refused to issue a preliminary injunction sought by parents of Catholic school children to eliminate the COVID face covering requirement for children attending K through Grade 5 at religious schools. Parents contend that the requirement interferes with the free exercise of the students' religion. (See prior posting.) Washington Post, reporting on appellants' arguments, said in part:

[A]ttorneys for Resurrection School in Lansing and two parents will tell the U.S. Court of Appeals for the Sixth Circuit that Catholic doctrine holds that every person is made in God’s image.

“Unfortunately, a mask shields our humanity,” the school argued in its lawsuit. “And because God created us in His image, we are masking that image.”

9th Circuit Remands Churches' Challenge To California Abortion Coverage Mandate

In Foothill Church v. Watanabe, (9th Cir., July 19, 2021), the U.S. 9th Circuit Court of Appeals in a 2-1 decision vacated a California federal district court's rejection of free exercise and equal protection challenges to California's requirement that insurance companies include coverage for abortion services in all health insurance policies. The court remanded for further consideration in light of the U.S. Supreme Court's recent decision in Fulton v. City of Philadelphia. Judge Bress filed a dissenting opinion, saying in part:

We should have decided the appeal that was properly before us and held what the law pre- and post-Fulton plainly requires: the Director’s broad discretionary authority to issue individualized exemptions from the abortion coverage obligation means that we must apply strict scrutiny to California’s requirement that the churches’ health planscover elective abortions.

Separately, in a memorandum opinion issued at the same time, the court unanimously affirmed the dismissal of the churches' Establishment Clause claim, saying that all religious organizations are treated alike, and the Establishment Clause is not violated merely because a rule happens to coincide with the beliefs of some religions.

California Law Barring Misgendering Of Long Term Care Residents Violates 1st Amendment

In Taking Offense v. State of California, (CA App., July 16, 2021), a California state appellate court held that a provision in California's Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights violates free speech rights.  At issue is a provision that prohibits staff members of long-term care facilities from willfully and repeatedly referring to a resident by anything except the person's preferred name or pronoun. The court said in part:

[W]e conclude the pronoun provision ... is overinclusive in that it restricts more speech than is necessary to achieve the government’s compelling interest in eliminating discrimination, including harassment, on the basis of sex.... [T]he law criminalizes even occasional, isolated, off-hand instances of willful misgendering-- provided there has been at least one prior instance--without requiring that such occasional instances of misgendering amount to harassing or discriminatory conduct.

The court however rejected an equal protection challenge to a different provision of the law that requires room assignments in long term care facilities to be made on the basis of a resident's gender identity, unless a transgender resident requests otherwise.

Judge Hull filed a concurring opinion discussing the right of intimate association. Judge Robie also filed a concurring opinion.

Bidens Send Eid Greetings

Today is Eid al-Adha. Yesterday President and Mrs. Biden issued a statement (full text) sending greetings to those celebrating the holiday. The statement reads in part:

The Hajj, which convenes people from all walks of life and from every corner of the globe, is also a reminder of Islam’s commitment to equality and the shared roots of the world’s Abrahamic faiths. The United States is committed to working with the international community to emerge stronger from the pandemic, and thousands of Muslim Americans are among those eager to perform the pilgrimage next year, God willing.

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

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

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

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

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

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

Recent Articles of Interest

From SSRN:

• Brian Bix, Protestant Interpretation, Conventions, and Legal Truth, (Thomas Bustamante & Thiago Lopes Decat (eds.), Philosophy of Law as an Integral Part of Philosophy: Essays on the Jurisprudence of Gerald J. Postema (Hart Publishing, 2020)).
• Marc Spindelman, Justice Gorsuch's Choice: From Bostock to Dobbs (What a Blockbuster LGBT Rights Ruling Might Mean for the Future of Abortion Rights), (Nat'l L.J. (July 9, 2021)).
• Nelson Tebbe, The Principle and Politics of Equal Value, (Columbia Law Review, Forthcoming).
• Nakul Nayak, Constitutional Morality: An Indian Framework,  (American Journal of Comparative Law (forthcoming)).

From SmartCILP:

• Kristen A. Carpenter, Book Review. Living the Sacred: Indigenous Peoples and Religious Freedom. Defend the Sacred: Native American Religious Freedom beyond the First Amendment, by Michael D. McNally, 134 Harvard Law Review 2103-2157 (2021).
• Peter B. Janci, Helping #ChurchToo Abuse Victims Hold Religious Entities Accountable in Civil Cases, 14 Liberty University Law Review 317-350 (2020).
• Victor I. Vieth et al., Keeping Faith: The Potential Role of a Chaplain to Address the Spiritual Needs of Maltreated Children and Advise Child Abuse Multi-Disciplinary Teams, 14 Liberty University Law Review 351-380 (2020).
• Bradley J. Lingo & Michael G. Schietzelt, Fulton and the Future of Free Exercise, 33 Regent University Law Review 5-38 (2020).

Minnesota Governor Orders Agencies To Combat Conversion Therapy

On July 15, Minnesota Governor Tim Walz issued Executive Order 21-25 (full text) providing:

All state agencies must pursue opportunities and coordinate with each other to protect Minnesotans, particularly minors and vulnerable adults, from conversion therapy to the fullest extent of their authority.

The Executive Order then details administrative actions that are to be taken by various state departments and agencies to prevent mental health professionals from working to change individuals' sexual orientation or gender identity.  AP reports on the governor's action. [Thanks to Scott Mange for the lead.]

EU Court of Justice Says Neutral Ban On Employees Wearing Any Religious Or Political Symbols Is Permitted

In IX v. WABE eV, (CJ EU, July 15, 2021), the Court of Justice of the European Union gave preliminary rulings in two cases from German Labor Courts on the extent to which employers can ban employees from wearing visible political, religious or philosophical signs in the workplace.  At issue was whether applying such a ban to Islamic headscarves constitutes either direct discrimination or indirect discrimination. EU Directive 2000/78 allows apparently neutral rules that particularly impact persons of a specific religion or belief only if they are "objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."

In one case, at issue was whether a day care center could apply such a ban to a special needs teacher. The court held the ban does not constitute direct religious discrimination "provided that that rule is applied in a general and undifferentiated way." It held that the ban would not constitute prohibited indirect discrimination if the policy meets a genuine need on the part of that employer; the difference of treatment is appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, and the ban is limited to what is strictly necessary.

The second case involves a sales assistant/ cashier at a drug store. The employer's policy only banned "conspicuous, large-sized political, philosophical or religious signs." The Court concluded that a ban limited to the wearing of conspicuous, large-sized signs cannot be a neutral policy since the wearing of any sign, even a small-sized one, undermines the ability ... to achieve the aim allegedly pursued and therefore calls into question the consistency of that policy of neutrality."

AP reports on the decision. [Thanks to Scott Mange for the lead.]

8th Circuit: University of Iowa Discriminated Against Christian Student Group

In Intervarsity Christian Fellowship/ USA v. University of Iowa, (8th Cir., July 16, 2021), the U.S. 8th Circuit Court of Appeals held that the University of Iowa violated the 1st Amendment rights of Intervarsity Christian Fellowship when the University applied its Human Rights Policy against ICF in a discriminatory manner. ICF required students seeking leadership positions to affirm a statement of faith based on biblical Christianity-- including the belief that same-sex relationships were against the Bible. The court said in part:

For decades, the University permitted RSOs to base their membership and leadership on religious affirmations or other traits that are protected by the Human Rights Policy.... In fact, the University still permits this; but it didn’t for InterVarsity. The district court found that the defendants likely violated BLinC’s constitutional rights and ordered the University to apply the Human Rights Policy equally to all RSOs. But instead of doing that, the University started a compliance review that prioritized religious organizations. That review led to InterVarsity’s deregistration, along with other religious groups. The University’s fervor dissipated, however, once they finished with religious RSOs. Sororities and fraternities got exemptions from the Human Rights Policy. Other groups were permitted to base membership on sex, race, veteran status, and even some religious beliefs.

Take LoveWorks, for example. It was formed by the student who was denied a leadership role in BLinC. LoveWorks requires its members and leaders to sign a “gay-affirming statement of Christian faith.’” ... Despite that requirement—which violates the Human Rights Policy just as much as InterVarsity’s—the University did nothing. 

We are hard-pressed to find a clearer example of viewpoint discrimination.

Becket issued a press release announcing the decision.

Suit Claims Change Of High School's Name Was Motivated By Anti-Catholic Sentiment

Suit was filed this week in a California state trial court challenging on Establishment Clause, as well as other, grounds the change of name of San Diego's Junipero Serra High School to Canyon Hills High School.  The complaint (full text) in Cox v.Renfree, (CA Super. Ct., filed 7/14/2021) alleges in part:

the entire effort to rebrand Junipero Serra High School has demonstrated systemic, deep-seated, anti-Catholic motivations....

The Franciscan priest, Junipero Serra, has been regarded as California's founding father. He established a Mission on the shores of San Diego Bay in 1769. The complaint in the lawsuit contends:

In the summer of 2020, Black Lives Matter protests and other demonstrations swept across the county, sparking an acute interest in Critical Race Theory and public erasure of symbols of colonialism—including Serra himself. Statues of Serra were defaced and attacked, and one of his churches was burned in an attack that represented animosity toward the Catholic faith and its role in California history. 

The complaint goes on to argue:

By selecting the rattlesnake as the school’s new mascot, which tribal members have stated is a sacred creature to their people, and removing the name of a Catholic saint from the school, Defendants are clearly endorsing and celebrating the religion of one group at the expense of another.

Thomas More Society issued a press release announcing the filing of the lawsuit.

European Court Says Russia Violated Convention In Refusing To Register Same-Sex Unions

In Fedotova and Others v. Russia, (ECHR, July 13, 2021), the European Court of Human Rights in a Chamber Judgment held that Russia violated Article 8 (Respect For Private and Family Life) of the European Convention on Human Rights when it refused to register the marriage of same-sex couples. The Court said in part:

49.  ... Article 8 ... does not explicitly impose ... an obligation to formally acknowledge same-sex unions. However, it implies the need for striking a fair balance between the competing interests of same-sex couples and of the community as a whole....

54.  The Court notes that the protection of “traditional marriage” stipulated by the amendments to the Russian Constitution in 2020 ... is in principle weighty and legitimate interest, which may have positive effect in strengthening family unions. The Court, however, cannot discern any risks for traditional marriage which the formal acknowledgment of same-sex unions may involve, since it does not prevent different-sex couples from entering marriage, or enjoying the benefits which the marriage gives....

56.  ... [T]he respondent Government have a margin of appreciation to choose the most appropriate form of registration of same-sex unions taking into account its specific social and cultural context (for example, civil partnership, civil union, or civil solidarity act). In the present case they have overstepped that margin, because no legal framework capable of protecting the applicants’ relationships as same-sex couples has been available under domestic law.

According to Euronews, Russian authorities have rejected the Court's judgment, saying that the Court is meddling in the country's internal affairs. 

Samuels Confirmed For Second Term On EEOC

According to a press release from the U.S. Equal Employment Opportunity Commission, the U.S. Senate yesterday confirmed the nomination of Jocelyn Samuels to serve a second term as an EEOC Commissioner. She will serve a 5-year term and continue to serve as Vice-Chair of the EEOC. Before joining the EEOC, Samuels was Executive Director of UCLA's Williams Institute which conducts research on sexual orientation and gender identity law and public policy. The EEOC enforces federal laws barring employment discrimination, including religious discrimination.