Hungarian Parliament Passes Law Banning Schools From Teaching About LGBT Issues

 AP reports that on Tuesday, Hungary's National Assembly adopted legislation (full text of law in Hungarian) that bans school sex education programs, as well as films and ads aimed at minors, from presenting information about non-heterosexual sexual orientation. It also bans presenting information about gender reassignment. The legislation began as a bill to battle pedophilia, but amendments expanded it to include anti-LGBT provisions. Fidesz, the conservative ruling party of Prime Minister Viktor Orban, introduced the legislation which passed by a vote of 157-1.  Opposition parties boycotted the voting session of parliament.

Challenge To "Sanctuary City for Unborn" Dismissed On Standing And Abstention Grounds

In Planned Parenthood of Greater Texas Surgical Health Services v. City of Lubbock, (ND TX, June 1, 2021), a Texas federal district court dismissed on standing and Pullman abstention grounds a pre-enforcement challenge to a Lubbock, Texas ordinance declaring the city a "sanctuary city for the unborn." The ordinance includes a private enforcement provision that comes into effect only upon certain future events, such as the overruling of Roe v. Wade. The court said in part:

 Although the Court assumes that plaintiffs can show injury that stems from the city's passage of the ordinance's private-enforcement provision, they fail to show that an order from the Court would redress the injury. Plaintiffs admit that this Court cannot force the city to revoke or amend its ordinance.... They also concede that any order from this Court regarding the ordinance's constitutionality or validity would not bind the state courts that would hear the private-enforcement suits.... Instead, plaintiffs claim that a declaration of invalidity from the Court may deter lawsuits and may help convince state courts of plaintiffs' arguments.... But this potential relief is too speculative to show, as they must, that the Court's order would likely redress their injury....

"[U]nder the Pullman doctrine, a federal court should abstain from exercising its jurisdiction 'when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided.'"...

Therefore, even if the Court had jurisdiction, the Court would dismiss the case without prejudice so that the state courts could resolve whether Texas law prohibits cities from enacting private rights of action or whether state law preempts any component of the ordinance.

Baker Violated Public Accommodation Law In Refusing To Sell Gender Transition Cake

Scardina v. Masterpiece Cakeshop, Inc., (CO Dist. Ct., June 15, 2021), is the latest installment in lawsuits against the owner of a Lakewood, Colorado bakery who refuses to furnish cakes that violate his religious beliefs.  Here, a transgender woman sought to order a birthday cake with a pink interior and blue exterior to reflect her transition from male to female. According to the court:

Mr. Phillips ... claims his religious beliefs prevent him from creating a custom cake celebrating a transition from male to female because expressing that message—that such a transition is possible and should be celebrated—would violate his religious convictions.... He and his wife believe that God designed people male and female, that a person’s gender is biologically determined, and that gender does not change based on an individual’s perception or feelings.....  

The court concluded that defendants violated the Colorado Anti-Discrimination Act, and that the law does not infringe defendants' free speech or free exercise rights:

Defendants denied Ms. Scardina goods and services because of her transgender status. Defendants admit that they were willing to make the requested cake until Ms. Scardina identified that she chose the colors to reflect and celebrate her identity as a transgender female....

The Court concludes that a reasonable observer of the requested cake would not attribute any message to Defendants and would not understand the cake to convey the message claimed by Defendants, i.e., endorsement of a gender transition. Therefore, Defendants have failed to carry their burden to show that providing the requested cake constituted any type of symbolic or expressive speech protected by the First Amendment.....

A press release from ADF says that the decision will be appealed.

South Carolina City Bans Conversion Therapy for Minors

According to The State, yesterday the Columbia, South Carolina City Council, by a vote of 4-3, passed a ban on licensed professional therapists offering conversion therapy for minors. Violations will result in a $500 civil fine. The paper reports:

A number of people spoke on the conversion therapy ban during Tuesday’s [City Council] meeting. Eleven of the 14 speakers were against the measure, with several saying they believed it infringed on religious liberties and First Amendment rights. Several of the speakers against the ordinance were connected to Columbia International University, a Christian college in North Columbia.

[Councilman Howard] Duvall said the ordinance would not interfere with conversations between a pastor and a resident.....  "It is clearly aimed at licensed practitioners. Most of the pastors in South Carolina are not licensed practitioners licensed by the state of South Carolina."

By a vote of 6-1, Council also passed a resolution supporting statewide legislation outlawing conversion therapy for minors.

Michigan Governor Bans Use Of State Funds For Conversion Theapy

Yesterday, Michigan Governor Gretchen Whitmer issued an Executive Directive (full text) directing the Michigan Department of Health and Human Services to take action "to prohibit the use of state and federal funds for the practice of conversion therapy on minors." In the Executive Directive, Whitmer said in part:

The assumptions underlying the practice of conversion therapy are not supported by medicine or science. Being LGBTQ+ is not a disorder, disease, or deficiency. Treating it as such through conversion therapy is not only ineffectual, but may cause significant long-term harm, including anxiety, depression, internalized homophobia, lowered self-esteem, and self-blame, as well as alienation, loneliness, social isolation, loss of social supports, and suicidal behaviors.

It also called on other state agencies to explore what they can do to protect minors from conversion therapy. MLive reports on the Governor's action.

College Seeks Injunction Pending Appeal To 8th Circuit In Suit Against HUD's Transgender Policy On Student Housing

In February of this year, the Department of Housing and Urban Development issued a Directive interpreting the Fair Housing Act as barring discrimination on the basis of sexual orientation or gender identity. This meant, among other things, that colleges could not discriminate against transgender individuals in access to student housing. College of the Ozarks filed suit challenging the Directive as a violation of its religious freedom rights. (See prior posting.) A Missouri federal district court refused to issue a TRO or a preliminary injunction, denied an injunction pending appeal, and dismissed the case as non-justiciable on the ground that the Directive is a non-binding policy statement.  Now the College has filed a motion with the U.S. 8th Circuit Court of Appeals seeking an injunction pending appeal. The School of the Ozarks, Inc. v. Biden, (8th Cir., filed 6/11/2021). (Full text of memorandum in support of the motion.) ADF issued a press release announcing the filing of the motion.

Street Preacher Lacks Standing To Challenge COVID Restrictions

 In Gibson v. City of Vancouver, (WD WA, June 7, 2021), a Washington federal district court dismissed for lack of standing a suit by a street preacher who claims that Washington state's COVID-19 restrictions unconstitutionally target religious activities. He also contended that the City of Vancouver selectively targets religious protesters for arrest for violating COVID-19 restrictions. The court said in part:

The Defendants accurately describe this matter as a case in search of a controversy. There has been no specific or credible threat of enforcement, and there is no history of enforcement. Gibson’s claims were never ripe, and he did not and does not have standing to assert them....

Cert. Denied In Unification Church Leadership Dispute

The U.S. Supreme Court today denied review in Moon v. Moon,   (Docket No. 20-1415, certiorari denied 6/14/2021). (Order List) (Links to pleadings.) In the case, the U.S. 2nd Circuit Court of Appeals in a Nov. 5, 2020 decision (full text) applied the ecclesiastical abstention doctrine to refuse to adjudicate a dispute over who is the true leader of the Unification Church.

Recent Articles of Interest

From SSRN:

• Mike Madden, Equal, but only Conceptually: Explaining the Trend of Religious Losses in Contemporary Canadian Constitutional Cases Involving Conflicting Rights, (forthcoming in Dalhousie Law Journal).
• Anuj C. Desai, Is Title VII an "Anti-Discrimination" Law?, (93 University of Colorado Law Review Forum (Forthcoming 2021)).
• Cary Franklin, Living Textualism, (Supreme Court Review, forthcoming 2021).
• Dr. Rifai Sulaiman Lebbe, Islamic Seminaries: A Brief Historical Survey, (June 1, 2021).

From SmartCILP:

Symposium, Jewish Law and American Law: A Comparative Study, (Touro Law Review, Vol. 36, Issue 1, (2020).

Wisconsin COVID Order Closing Schools Violated Free Exercise Rights

In James v. Heinrich, (WI Sup. Ct., June 11, 2021), the Wisconsin Supreme Court in a 4-3 decision, held that under Wisconsin statutes, the local health officer had no authority to issue a COVID-19 Order that closed schools.  In addition, the majority held that such orders are unconstitutional under the Wisconsin state constitution, saying in part:

[T]hose portions of the Order restricting or prohibiting in-person instruction are unconstitutional because they violate a citizen's right to the free exercise of religion guaranteed in Article I, Section 18 of the Wisconsin Constitution....

Under Heinrich's Order, all schools in Dane County——including these private religious institutions——were required to cease all in-person instruction for students in grades 3-12 and instead provide a virtual learning environment. Consequently, all in-person religious practices interwoven with religious education at these schools——ones deemed essential to the Petitioners' exercise of their faith——were suspended by government decree.

Justice Hagedorn filed a concurring opinion. Justice Dallet, joined by Justices Bradley and Karofsy, dissented, disagreeing with the majority's statutory interpretation and contending the majority did not need to reach the constitutional question.

Deacon's Defamation Suit Against Diocese Dismissed Under Ecclesiastical Abstention Doctrine

In In re Diocese of Lubbock, (TX Sup. Ct., June 11, 2021), the Texas Supreme Court in a 7-1 decision, held that the ecclesiastical abstention doctrine requires the trial court to dismiss an action for defamation and intentional infliction of emotional distress brought by against the Diocese of Lubbock by one of its ordained deacons. The deacon's name was included on a published list of those against whom credible allegations of sexual abuse of a minor have been raised. The deacon contended that he was wrongly included on the list because the person accusing him was not a minor. The court said in part:

[T]he Diocese ... based the scope of its investigation on the canonical meaning of minor: “a person who habitually lacks the use of reason,” which includes “vulnerable adults.” Thus, a court would have to evaluate whether the Diocese had credible allegations against Guerrero under the canonical meaning of “minor.” This would necessarily entail a secular investigation into the Diocese’s understanding of the term “minor,” whether a court agrees that the woman he allegedly sexually abused qualifies as a “minor” under Canon Law, and whether the allegations it possesses were sufficiently “credible.” ...

This inquiry would not only cause a court to evaluate whether the Diocese properly applied Canon Law but would also permit the same court to interlineate its own views of a Canonical term. Indeed, any investigation would necessarily put to question the internal decision making of a church judicatory body.

Justice Blacklock filed a concurring opinion. Justice Boyd filed a lengthy dissenting opinion. The briefs and oral arguments in the case are available online.

In a companion case in a per curiam order in Diocese of Lubbock v. Guerrero,(TX Sup. Ct., June 11, 2021), the court vacated and dismissed a trial court order in a suit invoking the Texas Citizens Participation Act.

Senate Holds Hearings On Atrocities Against Uyghurs

Yesterday the U.S. Senate Foreign Relations Committee held a joint subcommittee hearing on atrocities against the Uyghurs in China's  Xinjiang province. A video of the hearing titled Atrocities in Xinjiang: Where Do We Go From Here? is available online from the Committee's website. Prepared written testimony of committee witnesses is also available at the website.

First Muslim Article 3 Judge Is Confirmed

Yesterday, the U.S. Senate by a vote of 81-16, confirmed  Zahid N. Quraishi to be U.S. District Judge for the District of New Jersey.  Quraishi is currently a federal magistrate judge.  As reported by NPR, Quraishi will be the first Muslim to be confirmed as an Article 3 federal judge.

5th Circuit Hears Arguments On Louisiana COVID Limits On Churches

On Monday, the U.S. 5th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Spell v. Edwards. In the case, a Louisiana federal district court dismissed a suit by a pastor challenging the state's COVID-19 limits on worship services. (See prior posting.) An application to the U.S. Supreme Court for an emergency injunction pending appeal was rejected by Justice Alito. (See prior posting.) AP reports on the oral arguments.

European Court Says Lithuania Should Have Recognized Pagan Group

In Ancient Baltic Religious Association of  Romuva v. Lithuania, (ECHR, June 8, 2021), the European Court of Human Rights in a Chamber Judgment held that the Lithuanian Parliament (Seimas) violated Articles 9, 13 and 14 of the European Convention on Human Rights when it refused to grant the status of a State‑recognized religious association to Romuva.  Romuva is a community following traditional Baltic pagan beliefs. The court noted that the Lithuanian Bishops Conference opposed recognition of Romuva.  The court concluded:

The Court has repeatedly emphasized that maintaining true religious pluralism is vital to the survival of a democratic society .... The role of the authorities is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other....

... [W]hen refusing to grant State recognition to the applicant association, the State authorities did not provide a reasonable and objective justification for treating the applicant association differently from other religious associations that had been in a relevantly similar situation, and the members of the Seimas who voted against the granting of State recognition did not remain neutral and impartial in exercising their regulatory powers.

The Wild Hunt reports on the decision.

DOJ's Memo In Title IX Litigation Raises Controversy

As previously reported, in a class action filed in April, LGBTQ+ students enrolled at religious colleges that receive federal financial assistance sued the Department of Education challenging the constitutionality of the exemption for religious organizations from anti-discrimination requirements of Title IX.  Subsequently, three Christian universities filed a motion to intervene as defendants, contending that the Department of Education would not adequately defend the exemption. The government's memo in opposition to the motion to intervene (full text) in Hunter v. U.S. Department of Education, (D OR, filed 6/8/2021) has created controversy.  As reported by the Washington Post:

Some LGBTQ advocates were disturbed by the filing...,  saying its wording went further than necessary, further than just an obligation to defend an existing law. They want the administration to agree with them that it’s unconstitutional for federally-funded schools to discriminate against LGBTQ people....

To others, including Biden supporters, the administration had no other option, since ... Title 9 ...exempts religion..... 

However, in a possible sign of the pressure on the administration, the Justice Department amended the document Wednesday, taking out the word “vigorously” to describe its defense of the religious exemption and retaining multiple uses of the word “adequate.” It removed wording that said the Department of Education and the Christian schools “share the same ‘ultimate objective’ … namely, to uphold the Religious Exemption as it is currently applied.”

... Slate legal writer Mark Joseph Stern said the Justice Department was “trying to prevent a Christian organization from . . . mounting extreme arguments." Stern said the religious exemption to Title 9 isn’t “blatantly, invidiously unconstitutional” and thus the administration has no choice but to defend it.

Meat Packing Company Settles EEOC Suit Charging Discrimination Against Somali Muslim Employees

The EEOC announced yesterday that the meat processing company JBS Swift & Co. has settled an EEOC lawsuit against it that charged discrimination against Muslim employees who were immigrants from Somalia and were black. The EEOC had charged that the prayer obligations of Muslim employees were not accommodated, and that these employees were harassed when they tried to pray during regular breaks and at other times. It also charged that JBS shut off water fountains during Ramadan 2008, which stopped Muslim employees from getting water after fasting and from washing before prayers. JBS will pay up to $5.5 million to the 300 employees who are eligible to share in the judgment. According to the EEOC:

JBS will make all former employees covered under the decree eligible for rehire. It will review, update, and post its anti-discrimination policies; maintain a 24-hour hotline for reporting discrimination; investigate employee complaints; support a diversity committee; and provide annual trainings to all employees on the laws prohibiting employment discrimination. JBS also must provide clean, quiet, and appropriate locations other than bathrooms for employees’ religious observances, including daily prayers, and must also allow employees to use locker rooms or other locations that do not pose a safety risk for observation of their religious practices.

Suspension of Teacher Who Objected To Transgender Policy Is Enjoined

In Cross v. Louden County School Board, (VA Cir. Ct., June 8, 2021), a Virginia state trial court issued a temporary injunction ordering the Louden County School Board to reinstate a teacher who was suspended for speaking at a school board meeting in opposition to proposed policies that would require teacher to address students using pronouns that conform to their gender identity.  The Board was also ordered to remove its ban on plaintiff's accessing school grounds. The court concluded:

Plaintiff's speech and religious content are central to the determination made by Defendants to suspend Plaintiff's employment.

ADF issued a press release announcing the decision.

Utah Supreme Court: Lemon Test Is No Longer Controlling

In Williams v. Kingdom Hall of Jehovah's Witnesses, Roy, Utah, (UT Sup. Ct., June 3, 2021), the Utah Supreme Court vacated the trial and appellate courts' dismissal of a claim for intentional infliction of emotional distress against the Elders of a Jehovah's Witnesses church. At issue was the manner in which the Elders conducted an investigation of whether a 14-year old girl who was raped by a congregant was herself guilty of the sin of "porneia". The state Supreme Court said in part:

Although the conclusion reached by the district court and the court of appeals may ultimately prove to be the correct one, we note that in reaching that conclusion both courts relied on the excessive entanglement test established in Lemon. But ... Lemon has been overtaken by more recent Supreme Court cases.  Because the district court applied the excessive entanglement test from Lemon instead of the approach followed in these more recent cases, we vacate the district court‘s decision and remand for any additional proceedings necessary to adequately conduct the Supreme Court‘s current approach to the Establishment Clause.

... [T]he district court should focus on the particular issue at hand and look to history for guidance as to the correct application of the Establishment Clause.... [T]he court should identify ―an overarching set of principles and explain how those principles should be applied in this case.

Ogden Standard-Examiner reports on the decision. [Thanks to James Phillips for the lead.]

Supreme Court Grants Cert. In Challenge To Surveillance of Muslims

The U.S. Supreme Court today granted review in Federal Bureau of Investigation v. Fagazi, (Docket No. 20-828, certiorari granted 6/7/2021). (Order List). In the case, a 3-judge panel of the 9th Circuit held that three Muslim plaintiffs may move ahead with many of their claims growing out of an FBI investigation that they allege involved unlawful searches and anti-Muslim discrimination. Subsequently the panel filed an amended opinion and the 9th Circuit denied en banc review. However, ten judges joined all or most of an opinion dissenting from the denial of en banc review. At issue is the relationship between the provisions of FISA and the state secrets privilege. Here is the SCOTUSblog case page with links to all the filings in the case. Politico has additional background.