HRSA Wrongly Eliminated Required Insurance Coverage For Natural Family Planning Methods

 In Tice-Harouff v. Johnson, (ED TX, Aug. 12, 2022), a Texas federal district court held that changes in the language of federal regulations specifying the required cost-free contraceptive coverage by qualified health plans eliminated coverage for fertility-awareness based methods. These natural family planning methods are used, among others, by women with religious objections to use of contraceptives. The court held that the Health Resources and Services Administration violated the Notice and Comment requirement of the Administrative Procedure Act in adopting the amendments and that the amendments were arbitrary and capricious. The court rejected the government's claim that the change in language had not eliminated coverage for such methods. ADF issued a press release announcing the decision.

Preliminary Relief Denied In Challenge To Georgia Anti-Abortion Law

In Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., Aug. 15, 2022), a Georgia state trial court refused to grant a preliminary injunction to prevent enforcement of Georgia's LIFE Act while its constitutionality is being litigated. The Act, with limited exceptions, bars abortions once a heartbeat is detectable. The court held that Georgia's constitutional provision that waives sovereign immunity for an injunction after the award of declaratory relief does not waive sovereign immunity for a preliminary injunction before declaratory relief has been granted. The Georgia ACLU issued a press release discussing the decision.

USDA Clarifies Title IX Religious Institution Exemption

On Aug. 12, the Department of Agriculture issued a Guidance (full text) clarifying that a Title IX exemption is available for religious educational institutions if there is a conflict between Title IX and a school’s governing religious tenets. The Guidance provides in part:

USDA regulations do not require a religious educational institution to submit a written request for a Title IX exemption in order to claim that exemption.

If, however, a religious educational institution wishes to seek USDA recognition of their religious exemption, it may do so through a written request under USDA regulations....

The Guidance comes after litigation by a Christian school in Florida that objected to submitting an exemption request in order to participate in the USDA's school lunch program and maintain its policies on gender identity. (See prior posting.)  ADF issued a press release on the USDA's action.

Recent Articles of Interest

From SSRN:

• Mark Movsesian, The New Thoreaus, (Loyola University Chicago Law Journal, Forthcoming).
• Jake Linford, Justin Sevier & Allyson Willis, Trademark Tarnishmyths (August 6, 2022).
• Dov Fox, Medical Disobedience, (Harvard Law Review, Vol. 136, Forthcoming).
• Daniel O. Conkle, Religion, Law, and the Constitution, Second Edition, (Foundation Press, 2022).
• Kerri Froc, A Law in Rupture: Section 28, Equal Rights, and the Constitutionality of Québec's Bill 21 Religious Symbols Ban, (July 24, 2022).
• Frank Buono, A Compendium of Federal Authorities (Executive – Legislative - Judicial) Governing American Indian Sacred Sites on Federal Lands, (July 12, 2022).
• Shahbaz Ahmad Cheema, Rights of the Child in Islam: Theory, Mechanisms, Practices and Convention on the Rights of the Child – A Book Review, (LUMS Law Journal (2022) Vol. 9, pp. 108-112).

From SSRN (Abortion rights):

• Adam Richardson, The Originalist Case for Why the Florida Constitution's Right of Privacy Protects the Right to an Abortion, (August 10, 2022).
• Reva B. Siegel, Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance, (Texas Law Review, Forthcoming).

From SmartCILP and elsewhere:

• Ido Shahar & Karin Carmit Yefet, Kadijustiz in the Ecclesiastical Courts: Naming, Blaming, Reclaiming,  56 Law & Society Review 53-77 (2022).
• Journal of Law and Religion, Volume 37, Issue 2 (May 2022).

Louisiana Supreme Court Refuses Stay Of Abortion Ban During Appeals

In an Order (full text) signed by four of the seven Justices on the Louisiana Supreme Court in June Medical Services, LLC v. Landry, (LA Sup. Ct., Aug. 11, 2022), the court denied a petition by abortion providers seeking to reinstate a trial court's injunction on enforcing Louisiana's abortion ban while appeals are being pursued.  As explained by The Advocate, the trial court had found that the law was likely unconstitutionally vague.  A state appellate court ordered the trial court to suspend its ruling, and now the Supreme Court has refused to overturn that decision.

Idaho Supreme Court Refuses To Stop Effectiveness Of Abortion Bans

In Planned Parenthood Great Northwest v. State of Idaho,(ID Sup. Ct., Aug. 12, 2022), the Idaho Supreme Court, in a 3-2 decision, refused to issue a preliminary injunction to prevent enforcement while litigation is pending of a statute triggered by the overruling of Roe v. Wade imposing a near-total abortion ban, as well as of a six-week abortion ban. The court also vacated a preliminary stay it had previously issued barring enforcement of a law that creates civil liability in suits against persons performing abortions after a fetal heartbeat is detectable. Plaintiffs contend that the statutes violate various provisions of the Idaho constitution. The majority concluded that petitioners had not shown a substantial likelihood of success or violation of a clear legal right as to either of the statutes.

Justice Stegner, joined by Justice Zahn, dissented contending that it is sufficient that petitioners showed irreparable harm if a stay in not granted; they do not need to also show a likelihood of success. The dissent said in part:

The State and the Legislature’s only argument that irreparable harm will not result is that the Idaho Constitution does not protect the right to an abortion. This argument fails because it is premised on a decision we have not yet made.

Fox News reports on the decision.

Justice Department Initiates Investigation Of Sex Abuse By Southern Baptist Clergy And Executives

Baptist Press reported yesterday that the Justice Department has informed the Executive Committee of the Southern Baptist Convention that it has initiated an investigation that will involve multiple SBC entities. This comes after an independent investigation (full text of report) of sexual abuse allegations against clergy and Executive Committee members commissioned by SBC. A Release by the SBC Executive Committee (quoted in full in the Baptist Press report) says in part:

Individually and collectively each SBC entity is resolved to fully and completely cooperate with the investigation. While we continue to grieve and lament past mistakes related to sexual abuse, current leaders across the SBC have demonstrated a firm conviction to address those issues of the past and are implementing measures to ensure they are never repeated in the future. 

Data On Canadian Hate Crimes Released

On Aug. 2, Statistics Canada released Police-reported crime statistics in Canada, 2021. One section (Text Box 5) focuses on hate crimes and says in part:

The number of police-reported hate crimes in Canada increased by 27% in 2021, rising from 2,646 incidents to 3,360.... From 2020 to 2021, increases were noted in the number of police-reported hate crimes targeting religion (+354 incidents, +67%).... 

Police-reported hate crimes targeting the Jewish (+47%), Muslim (+71%) and Catholic (+260%) religions were up. The increase in hate crimes targeting the Muslim population follows a similar decrease in 2020; the increase also occurred in the same year as an attack in London, Ontario which targeted a Muslim family and resulted in four homicides and one attempted homicide.... In 2021, there were discoveries of unmarked graves on former residential school sites. Following these discoveries, there were reports of hate incidents targeting the Indigenous population as well as churches and other religious institutions....

JNS reports on the data.

Suspension Of Attorney Did Not Violate Her Free Exercise Rights

In In re Kelly, (DE Sup. Ct., Aug. 10, 2022), the Delaware Supreme Court accepted the report of its Board on Professional Responsibility and involuntarily transferred a state bar member to disability inactive status. The attorney's incoherent court filings, many containing religious references, led to the proceedings to move respondent to inactive status.  Respondent claimed, among other things, that the proceedings violated her free exercise rights. The court said in part:

It is the unfocused, irrelevant, and incoherent nature of many of Kelly’s submissions that led to this proceeding, not her religious or political beliefs as she contends. Kelly’s references to her religious and political views throughout her submissions do not shield her from scrutiny concerning her competency to practice law.

9th Circuit: Prof Gets Qualified Immunity In Suit Challenging His Course Presentation Of Islam

In Sabra v. Maricopa County Community College District,(9th Cir., Aug. 10, 2022), the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a Community College professor is entitled to qualified immunity in a suit against him claiming that his online module on Islamic terrorism in a World Politics course violated plaintiffs' Establishment Clause and Free Exercise rights. Plaintiffs claimed the module's primary message was disapproval of Islam and that the end-of-module quiz forced a Muslim student to disavow his religion by choosing answers reflecting a radical interpretation of Islam. The majority held that there is no case law "clearly establishing" that defendants' actions violated the First Amendment. It also concluded that plaintiffs had abandoned their municipal liability claim against the College on appeal.

Judge VanDyke filed a concurring opinion saying in part that "The only thing clearly established about ... [Plaintiffs' free exercise] claim is that nothing about it is clearly established."

Judge Bress dissented, saying in part:

I would have met Sabra’s Free Exercise claim on the merits rather than rely on legally infirm alternative grounds for affirmance. Sabra’s allegations are troubling, concern matters of sincerely held religious conviction, and warrant further judicial inquiry.

9th Circuit Hears Oral Arguments In Suit By Fellowship Of Christian Athletes On High School Rules

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in Fellowship of Christian Athletes v. San Jose Unified School District Board of Education. In the case, a California federal district court upheld a high school's non-discrimination policy for recognized student groups that precluded Fellowship of Christian Athletes from requiring its leaders to agree with and live in accordance with the group's Christian beliefs. (See prior posting.)

Subsidized Housing Family Size Limit Did Not Violate Rights Of Orthodox Jewish Family

In Katz v. New York City Housing Preservation & Development, (SD NY, Aug. 8, 2022), a New York federal district court rejected Free Exercise and Affordable Housing Act claims brought by an Orthodox Jewish family whose applications for an affordable housing unit were denied  because their family size exceeded the apartments' maximum occupancy limit. Plaintiffs claim that their religious beliefs require them to have a large family.  As to the Free Exercise claim, the court said in part:

The Katzes do not claim that Defendants’ policies disfavor acts only religious in nature or that Defendants otherwise showed overt animus in denying their applications or later appeals. Nor do they claim that the maximum occupancy limit is not generally applicable. They thus ask the Court to apply rational-basis review to analyze the occupancy restrictions....

Here, the City has a legitimate state interest in preventing overcrowding in subsidized apartment units. And limiting a unit’s occupancy to two people per bedroom is rationally related to that legitimate interest by setting a numerical cap on each apartment....

Rejecting the Fair Housing Act claim, the court said in part:

Here, the Katzes have failed to plausibly allege that the policies have created a disproportionate effect on Orthodox Jews because they never allege that the occupancy limits have or will result in an underrepresentation of Orthodox Jews in affordable housing lotteries in New York City. That is because at no point does the Complaint compare Orthodox Jews applying for New York City affordable housing lotteries to similarly situated individuals.

Anti-Muslim Facebook Postings Are Subject To Pickering Balancing Test

In Hernandez v. City of Phoenix, (9th Cir., Aug. 5, 2022), the U.S. 9th Circuit Court of Appeals remanded to the district court a case in which the Phoenix police department had disciplined an employee for social media posts he made disparaging Muslims.  The district court had held that the posts did not address matters of public concern and so were not subject to the balancing test of Pickering v. Board of Education  that protects as free speech some statements by public employees which are objectionable to the public employer. The Court of Appeals disagreed, saying in part:

It is true that each of Hernandez’s posts expressed hostility toward, and sought to denigrate or mock, a major religious faith and its adherents. The Supreme Court has made clear, however, that “[t]he inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”...

Having concluded that Hernandez’s Facebook posts constitute speech on matters of public concern at the first step of the Pickering balancing test, we would ordinarily proceed to the next step and assess whether the Phoenix Police Department has shown an adequate justification for punishing Hernandez’s otherwise protected speech. We cannot do so here, however, because the district court dismissed Hernandez’s First Amendment retaliation claim at the motion-to-dismiss stage.... Although it seems likely that Hernandez’s posts could impede the performance of his job duties and interfere with the Phoenix Police Department’s ability to effectively carry out its mission, no evidence of the actual or potential disruptive impact caused by Hernandez’s posts is properly before us at this stage of the proceedings....

In remanding the case, we do not mean to suggest that the Department will face a particularly onerous burden to justify disciplining Hernandez for his posts, given the comparatively low value of his speech.

Reuters reports on the decision.

Preliminary Injunction Bars Indiana Enforcement Of Ban On Transgender Girl Playing On Girls' Baseball Team

A recently enacted Indiana statute prohibits transgender girls from playing on girls' athletic teams sponsored by public schools or certain private schools.  In A.M. v. Indianapolis Public Schools, (SD IN, July 26, 2022), an Indiana federal district court, relying on Title IX, issued a preliminary injunction barring school officials from applying the statute to prevent plaintiff, a transgender girl entering the 5th grade, from playing on the girl's softball team. The court said in part:

[N]otably, § 20-33-13-4 does not prohibit all transgender athletes from playing with the team of the sex with which they identify – it only prohibits transgender females from doing so. The singling out of transgender females is unequivocally discrimination on the basis of sex, regardless of the policy argument as to why that choice was made. The Court finds that A.M. has established a strong likelihood that she will succeed on the merits of her Title IX claim.

The Hill reports on the decision.

Recent Articles of Interest

From SSRN:

• Richard H. Weisberg, Robert Cover's Love of Stories: Ruminations on his Wanting to Discuss The Brothers Karamazov with Me Across Five Conversations During the Last Five Years of His Life, with an Application to the Chauvin Murder Trial of 2021, (Touro Law Review, Vol. 37, 2022).
• S. Ernie Walton, In Loco Parentis and Constitutional Rights - Can They Coexist in Public Schools?, (August 3, 2022).
• Hila Keren, Market Humiliation, (August 2, 2022).
• Kaiponanea T. Matsumura, Beyond Polygamy, (Iowa Law Review, Vol. 107, No. 5, 2022).
• Michael Nesbitt, Leah West & Amarnath Amarasingam, The Illusive Motive Requirement In Canada's Terrorism Offences: Defining and Distinguishing Ideology, Religion, and Politics, (Forthcoming 2023, Osgoode Hall Law Journal 60:3).
• Christopher Ryan, An Historical and Empirical Analysis of the Cy-Près Doctrine, (48 ACTEC L. J. __ (Forthcoming 2023)).

From SSRN (Constitutional Interpretation):

• John Witte, Back to the Sources? What’s Clear and Not So Clear About the Original Intent of the First Amendment, (47 BYU L. Rev. 1303 (2022)).
• Noah Garver, The Institutional Natural Law Approach to Constitutional Interpretation, (August 1, 2022).
• R. George Wright, On the Logic of History and Tradition in Constitutional Rights Cases, (August 2, 2022).

From SSRN (Free Speech):

• Kristine L. Bowman & Katharine Gelber, Responding to Hate Speech: Counterspeech and the University, (28 Virginia Journal of Social Policy and the Law 248 (2021)).
• G. Alex Sinha, The End of Government Speech,(August 1, 2022).

From SSRN (LGBTQ Issues):

• Dominic Bayer, Child Gender Transition Bans and the Constitution: The Equal Protection Clause and Bostock, (Regent University Law Review, Forthcoming).
• Katie R. Eyer, Transgender Constitutional Law, (July 26, 2022).
• Robin S. Maril, Queer Rights After Dobbs v. Jackson Women’s Health Organization, (August 1, 2022).

From SSRN (Abortion Rights):

• Bruce Ledewitz, Dobbs Is Not a Religion Case, (Canopy Forum, August 1, 2022).
• Sherif Girgis, Update: Why the Equal-Protection Case for Abortion Rights Rises or Falls with Roe's Rationale, (Harvard Journal of Law and Public Policy, Vol. 17, No. Per Curiam, 2022).
• Gray Sutton, The Case Against Reason-Based Abortion Bans, (University of Chicago Legal Forum, Vol. Forthcoming 2023).

From SSRN (Judaism/ Islam):

• Michael Lewyn, Bringing Judaism Downtown: A Smart Growth Policy for Orthodox Jews, (University of Baltimore Law Review, Vol. 51, No. 37, 2021).
• Saadiya Suleman, Menstruation and Islam: Analysing the Impurity in Justice Nariman’s Sabrimala Opinion, (1(1) Journal of Law and Religious Affairs 41 (2021)).
• Zalman Rothschild, Sovereignty, Reason, and Will: Carl Schmitt and Hasidic Legal Thought, (Journal of Law and Religion, Vol. 37, No. 2, 2022).

No Church Autonomy Defense To Catholic Organization's Sexual Orientation Discrimination

In Doe v. Catholic Relief Services, (D MD, Aug. 3, 2022), a Maryland federal district court granted summary judgment in favor of plaintiff who was denied spousal health insurance coverage for his same-sex husband. Rejecting a church-autonomy defense, the court said in part:

CRS insists that any judicial inquiry into this case inevitably requires an inquiry into matters of Catholic faith and doctrine. This is not so; this case concerns a social service organization's employment benefit decisions regarding a data analyst and does not involve CRS's spiritual or ministerial functions.

The court held that Catholic Relief Services violated Title VII, and that the exemption in Title VII for religious organizations only applies to discrimination by them on the basis of religion. It also held that RFRA does not provide a defense because it applies only to claims against the government. The court also found no First Amendment violation, saying in part:

Our Constitution's solicitousness of religious exercise is not carte blanche for any religious institution wishing to place itself beyond the reach of any neutral and generally applicable law. This court need not engage in a strict scrutiny analysis that would apply if a truly comparable secular institution were being treated favorably compared to CRS.

The court went on to find violations of the federal and state Equal Pay Acts, and ordered certification to the state court of a question of coverage by Maryland's Fair Employment Practices Act.

Indiana Governor Signs New Law Restricting Abortions

On Friday, Indiana Governor Eric Holcomb signed Senate Enrolled Act 1 (full text). Under the new law, Indiana's former ban on abortions after 20 weeks or viability (whichever is sooner) except for life or substantial health reasons is amended to allow abortions only when necessary to prevent a serious health risk to the pregnant woman or to save her life, or for 20 weeks when the fetus is diagnosed with a fatal abnormality. Abortions may be performed during the first 10 weeks of pregnancy when the result of rape or incest. Parental consent for abortion for a minor is not required in the case of rape or incest. The law does not apply to in vitro fertilizations. ABC News reports on the new law. [Post revised for accuracy.]

5th Circuit Hears Oral Arguments In Challenge To Former Health Care Non-Discrimination Rule

Yesterday, the U.S. 5th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Franciscan Alliance v. Becerra. In the case, a Texas federal district court permanently enjoined enforcing the anti-discrimination provisions of the Affordable Care Act or implementing regulations against Christian health care providers and health plans in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions. (See prior posting.) As explained by Reuters report on the case:

The administration argues that the court order, which applies only to the Christian medical groups behind a 2016 lawsuit, is moot because the rule they originally challenged is no longer in effect.

Biden Issues Executive Order On Access To Reproductive Health Care Services

Yesterday, President Biden issued an Executive Order on Securing Access to Reproductive and Other Healthcare Services (full text). The White House also issued a Fact Sheet explaining the Executive Order.  The Executive Order reads in part:

There have been numerous reports of women denied health- and life-saving emergency care, as providers fearful of legal reprisal delay necessary treatment for patients until their conditions worsen to dangerous levels.  There are also reports of women of reproductive age being denied prescription medication at pharmacies — including medication that is used to treat stomach ulcers, lupus, arthritis, and cancer — due to concerns that these medications, some of which can be used in medication abortions, could be used to terminate a pregnancy.  Reportedly, a healthcare provider, citing a State law restricting abortion, even temporarily stopped providing emergency contraception.

As it remains the policy of my Administration to support women’s access to reproductive healthcare services, including their ability to travel to seek abortion care in States where it is legal, I am directing my Administration to take further action to protect access to reproductive healthcare services and to address the crisis facing women’s health and public health more broadly.

The Executive Order among other things directs the HHS Secretary to advance access to Medicaid coverage for patients traveling across state lines for medical care. It also directs the Secretary to promote compliance with non-discrimination laws in obtaining medical care. 

5th Circuit Upholds Qualified Immunity Defense Of Prison Officials Who Confiscated Hijab

In Taylor v. Nelson, (5th Cir., Aug. 2, 2022), the U.S. 5th Circuit Court of Appeals held that Texas prison authorities who confiscated a female inmate's hijab that exceeded the size permitted by prison policies can claim qualified immunity in a suit for damages against them. The court held that plaintiff failed to identify a clearly established right that officials violated and reasonable officials would not have understood that enforcing the policy on size of hijabs was unconstitutional.

Street Preacher Gets Injunction Against Ordinance Limiting Microphones

In Miller v. City of Excelsior, Minnesota, (D MN, Aug. 2, 2022), a Minnesota federal district court granted a preliminary injunction against enforcement of a city's ordinance on amplified sound and portions of its special-event permit regulation. Plaintiff wanted to preach on sidewalks in the downtown business area. The city ordinance effectively prevents use of amplification on the narrow sidewalks of downtown. Outside the business district, to use amplification audible more than 30 feet away requires a permit with a $150 per day fee and 30 days advance notice. The court said in part:

By prohibiting all unpermitted amplified sound that can be heard at the property line from where the sound emanates in the B-1 and B-2 zoning districts, it is more likely than not that Section 16-105(b)(3) burdens substantially more speech than necessary to further the City’s interests. The ... restriction effectively eliminates amplified sound in the public ways of those districts. In doing so, the ordinance becomes untethered to the City’s legitimate interests in protecting the use and enjoyment of those public areas....

Miller has shown a sufficient likelihood that the City’s 30-day notice requirement, as applied, is not narrowly tailored. Miller is a single speaker, and a 30 day-notice period places a substantial burden on his right to speak spontaneously in his desired public forum....

On this record, it’s more likely than not that a $150 per-day fee is not narrowly tailored to the City’s administrative expenses in hosting Miller’s First Amendment activity.

Fetus Now A Deductible Dependent On Georgia Income Tax Return

Georgia's Living Infants Fairness and Equality (LIFE) Act amends the definition of "natural person" in Georgia's statutes to mean "any human being including an unborn child". Last month, the U.S. 11th Circuit Court of Appeals upheld the constitutionality of the Act. In light of that, Georgia's Department of Revenue has issued Guidance related to House Bill 481, Living Infants and Fairness Equality (LIFE) Act (Aug. 1, 2022), reading in part:

[T]he Department will recognize any unborn child with a detectable human heartbeat, as defined in O.C.G.A. § 1-2-1, as eligible for the Georgia individual income tax dependent exemption. The 11th Circuit’s ruling made HB 481’s amendment to O.C.G.A § 48-7-26(a), adding an unborn child with a detectable heartbeat to the definition of dependent, effective as of the date of the court’s ruling, which was July 20, 2022.

[Thanks to Scott Mange for the lead.]

French Constitutional Tribunal Upholds Regulation Of Religious Associations

France's Constitutional Council last month in Union of Diocesan Associations of France and others  (Conseil constitutionnel, July 22, 2022) upheld the constitutionality of several provisions of law governing religious institutions in France. It upheld the requirement that a religious organization must register with a government official in order to enjoy benefits available specifically to a religious association.  It found that this did not infringe freedom of association, and also concluded in part:

[The provisions] have neither the purpose nor the effect of carrying the recognition of a religion by the Republic or of hindering the free exercise of religion.... Accordingly, the contested provisions, which do not deprive the free exercise of worship of legal guarantees, do not infringe the principle of secularism.

The court also rejected an equal protection challenge to a provision limiting religious organizations to realizing no more than 50% of their revenues from apartment buildings they own. Finally it upheld provisions allowing the state to require a religious association to conform its stated purposes to its actual activities and requirements; for reporting of a religious association's places of worship; and, when requested, to provide a government official with financial information including amounts used for religious activities and amounts of foreign financing. However, the court cautioned:

While such obligations are necessary and suited to the objective pursued by the legislator, it will nevertheless be up to the regulatory power to ensure, by setting the specific methods for implementing these obligations, that the constitutional principles of freedom of action are respected.

The court issued a press release announcing the decision.  Law & Religion UK also reports on the decision.

Massachusetts Law Exonerates Last Convicted Witch

 Section 105 of the Massachusetts FY23 Budget Bill signed by Governor Charlie Baker on July 28 exonerates Elizabeth Johnson, Jr., the last Massachusetts resident who was legally classified as a witch. As reported by Courthouse News Service, Johnson is one of 30 people convicted in Salem witch trials in 1693. All the others have previously been exonerated by the legislature. The exoneration was pushed by an eighth-grade civic teacher in North Andover, Massachusetts where Johnson had lived.

Clergy Sue Challenging Florida's Abortion Restrictions

The Washington Post reports that in Florida, seven members of the clergy-- Christian, Jewish, Unitarian-Universalist and Buddhist-- have filed lawsuits contending that Florida's 15-week abortion ban violates their free exercise, free speech and Establishment Clause rights. Typical of the lawsuits is the complaint (full text) in Hafner v. State of Florida, (FL Cir. Ct., filed 8/1/2022), filed by a pastor of the United Church of Christ.  It alleges in part:

 59. The Act establishes as the law of the State of Florida, a particular and narrow religious view about abortion and when “life” begins. This view is contrary to the religious beliefs of Plaintiff and the UCC, which does not necessarily make a claim regarding when “life” begins, but instead, centers on the mother’s right to have a choice, oversee her own body, and make her own decisions.

60. The Act further provides for no exceptions for the psychological health of the mother or family, non-fatal fetal abnormalities, or victims of incest, rape, or trafficking, which are all circumstances in which the UCC would, amongst other circumstances, support a girl or woman’s decision to have an abortion before or after fifteen weeks....

65. Plaintiff’s beliefs are consistent with the UCC principles set forth above and, as a result, the Act substantially burdens the exercise of her religious faith because it hampers her ability to counsel congregants and speak freely on reproductive rights and issues and burdens her congregants’ ability to seek counsel from their religious leader.

Here is the complaint in a similar suit filed by three rabbis (Pomerantz v. State of Florida, (FL Cir. Ct., filed 8/1/2022).

UPDATE: Here is the complaint in Chotso v. State of Florida, (FL Cir. Ct., filed 8/1/2022), filed by a Buddhist Lama.

Wisconsin Violated Archdiocese Rights In Excluding Clergy As COVID Precaution After Other Outsiders Were Allowed In

 As previously reported, last June a Wisconsin trial court issued a Provisional Writ of Mandamus ordering the Wisconsin prison system to allow Catholic clergy the opportunity, at least once a week, to conduct in-person religious services in state correctional institutions. Access for clergy is mandated by Wis. Stat. 301.33(1). The state had suspended visits beginning in March 2020 to minimize the spread of COVID.  Now, in Archdiocese of Milwaukee v. Wisconsin Department of Corrections, (WI Cir. Ct., July 14, 2022), the same court issued a declaratory judgment and permanent injunction, concluding that once the prison system allowed some external visitors to enter correctional institutions, it was required to honor the clergy's statutory privilege to do so, and refusal to do so violated plaintiff's free exercise rights under the Wisconsin Constitution. CBN News reports on the decision.

Michigan's Pre-Roe Abortion Ban May Now Be Enforceable By County Prosecutors

As previously reported, in May Michigan Court of Claims issued a preliminary injunction barring enforcement of the state's 1931 pre-Roe abortion ban while a challenge to that law under the Michigan state constitution is being litigated. In response, two county prosecutors and two anti-abortion organizations filed a complaint with the state Court of Appeals seeking an Order of Superintending Control that would require the state Court of Claims to dismiss the case for lack of jurisdiction. (See prior posting.) Today in In re Jarzynka, (MI App., Aug. 1, 2022), the Michigan Court of Appeals dismissed that suit for lack of standing. It held that the anti-abortion groups have not suffered a sufficient injury by the Court of Claims decision to give them standing to challenge it.  As to the prosecuting attorneys, the Court of Appeals held that the Court of Claims injunction applies only to the state Attorney General's office and does not apply to county prosecutors. As reported by the Detroit News, this holding would seem to now allow county prosecutors to file criminal charges under the 1931 statute against abortion providers. State Attorney General Dana Nessel says that Democratic prosecuting attorneys have committed to not enforcing the 1931 ban.

UPDATE: AP reports that just hours after the Court of Appeals decision, an Oakland County judge, at the request of Michigan Governor Gretchen Whitmer, issued a temporary restraining order against prosecutors in counties with abortion providers barring enforcement of the 1931 law.  He scheduled a hearing for Wednesday.

Michigan Supreme Court: State's Public Accommodation Law Bars Sexual Orientation Discrimination

In Rouch World, LLC v. Department of Civil Rights, (MI Sup. Ct., July 28, 2022), the Michigan Supreme Court, in a 5-2 decision, held that the Elliott-Larsen Civil Rights Act's ban on sex discrimination on the basis of sex includes discrimination based on sexual orientation. The case was brought in the state Court of Claims by two businesses which, on religious grounds, refused to serve LGBT clients. One of the plaintiffs had refused to host a same-sex wedding at its event center. The other had refused to provide electrolysis hair-removal services to a transgender woman. The Court of Claims, bound by higher state court precedent, held that the ELCRA did not cover sexual orientation discrimination. However, lacking state court precedent on its application to transgender discrimination, the Court of Claims held that the ECLRA does ban discrimination on the basis of gender identity.  Only the holding regarding sexual orientation was appealed to the state Supreme Court.

Justice Clement's majority Supreme Court opinion said in part:

[W]e conclude that discrimination on the basis of sexual orientation necessarily involves discrimination because of sex in violation of the ELCRA. In so doing, we find persuasive Bostock’s application of Title VII’s but-for standard. While we are encouraged but not bound to consider persuasive Title VII federal case law, ... we find that Bostock offers a straightforward analysis of the plain meaning of analogous statutory language and we agree with its reasoning....

Plaintiff Rouch World, along with the dissent, also criticizes this conclusion as inconsistent with the intent of the 1976 Legislature that enacted the ELCRA. It argues that the ELCRA’s legislative history demonstrates that the Legislature intentionally chose to exclude protections from discrimination based on sexual orientation, both at the time of its enactment by declining to include the specific language and repeatedly thereafter by rejecting proposed amendments that would have added the specific language. However, the legislative history of a statute is relevant to the statute’s meaning only where the statute is ambiguous.... When the statute’s language is clear, as it is here, we rely on that plain language as the best evidence of its meaning.

Judge Zahra, dissenting, said in part:

I take no issue with the merits of the policy adopted today by a majority of this Court. I also harbor no doubt that my colleagues in the majority are acting in good faith, with pure hearts and the best of intentions.

Yet ... this Court’s duty is to say what the law is, not what it thinks the law ought to be.

The majority opinion declares that “because of . . . sex” means something that nobody in 1976 thought it meant.... [T]he majority opinion also declares that phrase to encompass something that the enacting Legislature specifically and explicitly considered including but ultimately chose not to embrace.... If we are to be faithful to our constitutional mandate to say what the law is, we simply cannot pretend that the ELCRA says something that it does not say.

Justice Viviano filed a dissenting opinion which says in part:

The relevant statutory provision, MCL 37.2302(a), prohibits certain discriminatory actions taken “because of . . . sex,” among other things. Properly interpreted, this requires that the defendant maintain some prejudice, bias, animus, or belief about “sex” or the other characteristics protected by the statute....

[D]iscrimination on the basis of one’s sexual orientation is not discrimination because of some prejudice, bias, animus, or belief about the male sex or the female sex.

Bridge Michigan reports on the decision.

Recent Articles of Interest

 From SSRN:

• Michael A. Helfand, The Law of Torah U’Madda: Considering the Legal Implications of an Integrated Curriculum, (COVID 19 and Chinuch: Lessons Learned and Opportunities Uncovered. Volume 3: Families, Communities and Funders).
• Jeffrey A. Redding, Islamic Challenges to Pakistan’s Transgender Rights Law, (10 Melbourne Asia Review (2022)).
• William Wagner, Amicus Brief in Kennedy v Bremerton School District, (U.S. Supreme Court (No. 21-418) (February 28, 2022)).
• Lael Daniel Weinberger, Carson v. Makin and the Relativity of Religious Neutrality, (Forthcoming, Harvard Journal of Law & Public Policy Per Curiam).
• Emmanuel Umbu & Joseph Agada, The Right to Freedom of Marriage and the Constitutionality of the Prohibition of Same Sex Marriage in Nigeria, (Nigerian Bar Journal (2021), Vol. 11, Issue 1).

From SSRN (Abortion Rights):

• Paul Benjamin Linton, Neutralizing State Constitutions as a Source of Abortion Rights: The Path Forward, (Regent University Law Review, Vol. 34, No. 3, 2021-2022).
• Richmond Idaeho, Turning Point in American Abortion Law: US Supreme Court’s Reversal of Roe V. Wade, (July 9, 2022).
• Peggy Cooper Davis, The Reconstruction Amendments Matter when Considering Abortion Rights, (The Washington Post 2022).
• Peggy Cooper Davis, Overturning Abortion Rights Ignores Freedoms Awarded after Slaverys's End, (The Economist 2022).
• Melanie Kalmanson, Death After Dobbs: Addressing the Viability of Capital Punishment for Abortion, (July 11, 2022).

Class Action Settlement Reached In Religious Challenge To Vaccine Mandate

 A 24-page class action Settlement Agreement (full text) was filed last week in an Illinois federal district court in Doe 1 v. NorthShore University HealthSystem, (ND IL, filed 7/292/2022).  The suit was brought on behalf of approximately 523 employees who requested, but were denied, a religious exemption or accommodation from the hospital system's COVID vaccination mandate. If the settlement is approved by the court, the hospital system will pay $10,330,500 in damages. Most former employees will receive $25,000 each.  $2,061,500 of the settlement amount will go to plaintiffs' counsel. Liberty Counsel issued a press release announcing the settlement and National Catholic Register reported on the settlement agreement.

7th Circuit: Ministerial Exception Doctrine Applies To State Tort Claims

In Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., (7th Cir., July 28, 2022), the U.S. 7th Circuit Court of Appeals held that the the Co-Director of Guidance at a Catholic high school was a "minister" for purposes of the ministerial exception doctrine. It went on to hold that the ministerial exception doctrine applies to state tort claims against the Archdiocese for Interference with Contractual Relationship and Intentional Interference with Employment Relationship. In the case, the school refused to renew its contract with Lynn Starkey, who had been employed by the school for nearly forty years, after the school learned of Starkey's same-sex marriage. Starkey sued both the school and the Archdiocese. Summarizing its holding, the court said in part:

Starkey was a minister because she was entrusted with communicating the Catholic faith to the school’s students and guiding the school’s religious mission. The ministerial exception bars all her claims, federal and state.

Becket issued a press release discussing the decision.

Interlocutory Appeal Available On Charitable Immunity Ruling, But Not On Church Autonomy Holding

In Doe v. Roman Catholic Bishop of Springfield, (MA Sup. Jud. Ct., July 28, 2022), the Massachusetts Supreme Judicial Court held that an defendant cannot not take an interlocutory appeal from the trial court's refusal to dismiss portions of a lawsuit on church autonomy grounds. The suit alleged that plaintiff, in the 1960's when he served as an altar boy, was sexually abused by multiple church officials including a parish priest, a pastor and the bishop. The court said in part:

The [ecclesiastical abstention] rule's central purpose is to address the historic, philosophical concern with government interference in religious affairs by maintaining the constitutional separation between religion and government; at least originally, another purpose was to prevent civil courts from addressing matters in which they lack competence.... 

Both these concerns can be addressed on appeal after final judgment if a lower court inadvertently rules on a religious issue.

The court held, however, that an interlocutory appeal is available from the trial court's ruling on charitable immunity, saying in part:

Unlike ecclesiastical abstention, then, the purpose of common-law charitable immunity was to protect certain parties "from the burden of litigation and trial." 

 At common law, charitable immunity extended only to wrongdoing "committed in the course of activities carried on to accomplish charitable activities." ... The abuse allegedly carried out by Weldon and other church leaders was not, and could not be, related in any way to a charitable mission....

However, one count should have been dismissed.... Count six alleges that the Roman Catholic Bishop of Springfield negligently hired and supervised the church leaders who allegedly assaulted the plaintiff. A negligent supervision claim is exactly the sort of allegation against which common-law charitable immunity was meant to protect.

Ministerial Exception Doctrine Requires Dismissal Of Race and National Origin Discrimination Claim

In Chris v. Kang, (D OR, July 26, 2022), an Oregon federal district court dismissed a claim of race and national origin discrimination brought by plaintiff who was not hired as the Worship Pastor of Village Baptist Church.  Plaintiff claimed he was not hired because he was not a native English speaker, was said to be unfamiliar with American culture and to speak with an accent. The court held that the ministerial exception doctrine applies to both Title VII and state employment discrimination claims, insulating from judicial review the church's decisions on who should be its ministers.

Christian School Challenges USDA's Interpretation Of Sex Discrimination Under Title IX

A Christian school which enrolls 56 students in grades Pre-K to 8 filed suit this week in a Florida federal district court challenging a U.S. Department of Agriculture Departmental Regulation defining sex discrimination as including discrimination on the basis of sexual orientation or gender identity.  The school is covered by the regulation because it participates in Title IX federal meal programs for its low-income students. The complaint (full text) in Faith Action Ministry Alliance, Inc. v. Fried, (MD FL, filed 7/27/2022) alleges in part:

9. If Grant Park Christian Academy does not comply with the new school lunch mandate, it will lose lunch funding for its children.

10. But if Grant Park Christian Academy complies with the new school lunch mandate, it will suffer harms to its educational mission, free speech, and religious exercise. It will no longer be able to maintain sex-separated restrooms for boys and girls based on their biological differences. It will no longer be able to maintain sex-specific dress code and uniform policies, in which, for example, only female students are permitted to wear skorts. It will no longer be able to draw its workforce from among those who share and live out its religious convictions. It will no longer be able to refrain from using pronouns that do not correspond to biological sex.

The complaint concedes that there is an exemption in Title IX for religious organizations where compliance would be inconsistent with their religious tenets. However, plaintiff objects to the requirement that it submit an exemption request for USDA approval, saying in part:

This exemption should apply by operation of statute, but USDA interprets Title IX to require religious schools to submit exemption requests.... These requests do not guarantee that schools have been, or even will be, exempt—but submitting requests do subject schools to a name-and-shame harassment campaign from activists.

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

UPDATE: In an August 5 court filing, the parties informed the court:

Today ... state officials informed Grant Park Christian Academy that the school would be allowed to continue participating in the National School Lunch Program.... In addition, attorneys for the United States Department of Justice ... acknowledged that Grant Park Christian Academy qualifies for a religious exemption under Title IX of the Education Amendments of 1972 and issued a written letter confirming the school’s religious exemption....

Christian University Sues To Stop Investigation of LGBTQ Discrimination

Suit was filed yesterday in a Washington federal district court by a Christian university challenging the state of Washington's investigation of whether the university has discriminated in hiring on the basis of sexual orientation.  The complaint (full text) in Seattle Pacific University v. Ferguson, (WD WA, filed 7/27/2022), alleges in part:

4. As part of its religious commitment, Seattle Pacific expects its faculty, staff and leadership to agree with the University’s statement of faith and to live out that faith as a model for others, including by living according to the University’s religious teachings on marriage. Seattle Pacific relies on its faculty, staff, and leadership to provide a Christian higher education by integrating faith and learning.

5. The U.S. Constitution recognizes and protects the right of Seattle Pacific University to decide matters of faith and doctrine, to hire employees who share its religious beliefs, and to select and retain ministers free from government interference.

6. Defendant does not recognize that right. Despite the Constitution’s clear prohibition on interference in matters of church governance, including entangling investigations of religious employment decisions and the selection of ministers, Washington’s attorney general has launched a probe that does just that.

Courthouse News Service reports on the lawsuit.

8th Circuit: Christian School Lacks Standing To Challenge HUD Memo On Sex Discrimination In Housing

 In The School of the Ozarks, Inc. v. Biden, (8th Cir., July 27, 2022), the U.S. 8th Circuit Court of Appeals held in a 2-1 decision that a Christian college lacks standing to challenge a memorandum issued by an acting assistant secretary of the U.S. Department of Housing and Urban Development. The memorandum directs the HUD office that enforces the Fair Housing Act to investigate all discrimination complaints, including discrimination on the basis of sexual orientation or gender identity. The school's religiously-inspired Code of Conduct specifies that biological sex determines a person's gender. The school maintains single-sex residence halls and does not permit transgender individuals to live in residence halls that do not match their biological sex. The majority said in part:

The Memorandum does not, as the College presupposes, require that HUD reach the specific enforcement decision that the College’s current housing policies violate federal law. The Memorandum, for example, says nothing of how the Religious Freedom Restoration Act or the Free Exercise Clause may limit enforcement of the Fair Housing Act’s prohibition on sex discrimination as applied to the College....

The College’s alleged injury also lacks imminence because it is speculative that HUD will file a charge of discrimination against the College in the first place.... [T]he agency has never filed such a charge against a college for sex discrimination based on a housing policy that is specifically exempted from the prohibition on sex discrimination in education under Title IX....

Judge Grasz dissented, arguing in part that the school has already suffered an injury-- the right to notice and comment on proposed rules. He said: "In my view, HUD’s Memorandum is an interpretative rule."

Respect For Marriage Act Receives Bipartisan Support But Is Opposed By Christian Groups

On July 19, by a bipartisan vote of 267-157, the U.S. House of Representatives passed and sent to the Senate HR 8404, the Respect For Marriage Act (full text). The bill provides in part:

No person acting under color of State law may deny—

(1) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of the sex, race, ethnicity, or national origin of those individuals; or

(2) a right or claim arising from such a marriage on the basis that such marriage would not be recognized under the law of that State on the basis of the sex, race, ethnicity, or national origin of those individuals.

On Tuesday, 83 Christian and other conservative organizations sent a letter (full text) to Senate Minority Leader Mitch McConnell asking him to oppose the bill, and saying in part:

anyone who supports this measure is crossing a line into aiding and abetting the persecution of people of faith.

The letter suggests that the bill may be interpreted to require religiously-affiliated child placement and social service agencies that receive government funding or work closely with the government to recognize same-sex marriages. Washington Times reports on the letter.

Georgia Abortion Law Challenged Under State Constitution

After the U.S. 11th Circuit Court of Appeals last week upheld Georgia's abortion laws against federal constitutional challenges, suit was filed Monday in a Georgia state trial court challenging Georgia's 6-week abortion ban under Georgia's state constitution. The complaint (full text) in Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., filed 7/26/2022) alleges in part:

91. Because federal constitutional law clearly prohibited pre-viability abortion bans when the Six-Week Ban was enacted in 2019, the Act is void ab initio and unenforceable....

92. By banning abortion from the earliest weeks of pregnancy and thus forcing pregnancy and childbirth upon countless Georgians, H.B. 481 violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy guaranteed by various provisions of the Georgia Constitution ... and (b) equal protection....

93. By specifically excluding pregnant Georgians experiencing an acute psychiatric emergency from H.B. 481’s “medical emergency” exception, H.B. 481 violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy....

94. By requiring Georgians pregnant as a result of rape/incest to disclose their assault to law enforcement as a condition of ending the pregnancy, H.B. 481 violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy ... and (b) equal protection....

95. By allowing district attorneys to access abortion patients’ personal medical records without due process protections, the Records Access Provision violates Plaintiffs’ patients’ and members’ rights to: (a) liberty and privacy...

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

Suit Challenges Wyoming's Abortion Ban [UPDATED]

On Monday, suit was filed in a Wyoming state trial court seeking a temporary restraining order as well as preliminary and permanent injunctions against enforcement of the recently enacted Wyoming Criminal Abortion Ban. The Complaint (full text) and supporting Memorandum (full text) in Johnson v. State of Wyoming, (WY Dist. Ct., filed 7/25/2022), contends that the ban violates plaintiffs' fundamental rights protected by the Wyoming Constitution, saying in part:

Plaintiff's fundamental rights which make up the right to be left alone by the government absent a compelling need narrowly drawn include, but are not limited to, their rights to equality, due process, uniform operation of the laws, family composition, privacy and bodily integrity, conscience, and access to health care.

One of the six plaintiffs alleges:

She is a reproductive age woman with immediate plans to marry and have children. Ms. Dow is a life-long practicing conservative Jew who intends to continue practicing her faith, including raising her children in her faith, which requires her to consider abortion as an available health care alternative in the event of pregnancy conditions which threaten her health.

WyoFile reports that a district judge has found good cause exists for an emergency hearing and has set a hearing for today.

UPDATE: The Casper Star Tribune reports that the court issued a 14-day temporary restraining order against enforcement of the law on July 27, the day the law was to go into effect.

Title IX Applies To Religiously Affiliated School That Is Tax Exempt

The provisions of Title IX of the Education Amendments Act of 1972 which bar sex discrimination apply to "any education program or activity receiving federal financial assistance". In Buettner-Hartsoe v. Baltimore Lutheran High School Association, (D MD, July 21, 2022),  a Maryland federal district court held that a §501(c)(3) tax exemption for a religiously-affiliated high school constitutes federal financial assistance so that the school is subject to Title IX. The court added that also in its view, schools that discriminate on the basis of sex, just like those that discriminate on the basis of race, are not entitled to federal tax exemptions. The court's opinion applies to cases brought by 5 women who are former students at the high school who allege sexual assault and verbal sexual harassment by male students at the school. JDSupra reports on the decision.

Disaffiliated Congregation Not Entitled To Church Property

In Hebron Community Methodist Church v. Wisconsin Conference Board of Trustees of the United Methodist Church, Inc., (WD WI, July 25, 2022), a Wisconsin federal district court rejected a claim by a local congregation that it retained title to the church's real property after it disaffiliated from its parent organization.  The local congregation asked for a declaration that a Wisconsin statute specifically governing property of disaffiliated Methodist congregations is unconstitutional.  The statute provides:

Whenever any local Methodist church or society shall become defunct or be dissolved the rights, privileges and title to the property thereof, both real and personal, shall vest in the annual conference and be administered according to the rules and discipline of said church.

The court however held that it need not reach the constitutional question, because the local congregation "has not pleaded facts sufficient to show that any neutral principle of law would allow Hebron to retain its property after disaffiliation." Wisconsin law directs courts to look to the Church's governing documents. The congregation had adopted the Book of Discipline as its governing document.  The Book of Discipline provides in part:

All properties of United Methodist local churches and other United Methodist agencies and institutions are held, in trust, for the benefit of the entire denomination....

Courthouse News Service reports on the decision.

HHS Proposes Rule Expanding Health Care Nondiscrimination Requirements

The Department of Health and Human Services yesterday issued a 308-page rule proposal (full text) titled Nondiscrimination in Health Programs and Activities. The proposed rule would reverse a narrower interpretation of the nondiscrimination provisions in the Affordable Care Act that was reflected in a Trump Administration rule. As summarized by the American Hospital Association:

[T]he proposed rule restores and strengthens civil rights protections for patients and consumers in certain federally funded health programs after a 2020 version of the rule limited its scope and power to cover fewer programs and services. Specifically, HHS said the rule affirms protections against discrimination on the basis of sex, including sexual orientation and gender identity, consistent with the U.S. Supreme Court’s holding in Bostock v. Clayton County, and reiterates protections from discrimination for seeking reproductive health care services.

Bloomberg Law has more on the proposed rule.

International Court Of Justice Says Genocide Case Against Myanmar May Move Ahead

 In The Gambia v. Myanmar, (Intl. Ct. Justice, July 22, 2022), the United Nations International court of Justice rejected various procedural defenses raised by Myanmar to the suit against it alleging genocide against the Rohingya. Among other things, it held that Gambia has standing to bring the lawsuit, saying in part:

112. It follows that any State party to the Genocide Convention may invoke the responsibility of another State party, including through the institution of proceedings before the Court, with a view to determining the alleged failure to comply with its obligations erga omnes partes under the Convention and to bringing that failure to an end.

113. The Court acknowledges that Bangladesh, which borders Myanmar, has faced a large influx of members of the Rohingya group who have fled Myanmar. However, this fact does not affect the right of all other Contracting Parties to assert the common interest in compliance with the obligations erga omnes partes under the Convention and therefore does not preclude The Gambia’s standing in the present case.

AP reports on the decision.

Kentucky Abortion Bans Violate State Constitution

In EMW Women's Surgical Center v. Cameron, (KY Cir. Ct., July 22, 2022), a Kentucky state trial court issued a temporary injunction against enforcement of two statutes restricting abortions-- a six-week fetal heartbeat ban, and a ban on almost all abortions triggered by the overruling of Roe v. Wade. Relying on provisions of the Kentucky state constitution, the court found that the Trigger Ban constituted an unconstitutional delegation of legislative authority to the U.S. Supreme Court, and also concluded that the law is unconstitutionally vague. the court concluded that the six-week ban violates provisions of the Kentucky constitution protecting the right to privacy, equal protection and the prohibition on the establishment of religion and the protection of the free exercise of religion. The court said in part:

Defendants' witnesses ... argue that life begins at the very moment of fertilization and as such is entitled to full constitutional protection at that point. However, this is a distinctly Christian and Catholic belief. Other faiths hold a wide variety of views on when life begins and at what point a fetus should be recognized as an independent human being....

The General Assembly is not permitted to single out and endorse the doctrine of a favored faith for preferred treatment.... There is nothing in our laws or history that allows for such theocratic based policymaking.

AP reports on the decision.

UPDATE: A Kentucky appellate court lifted the injunction while the case is on appeal, and the Kentucky Supreme Court refused to reinstate the injunction but set the case for argument on Nov. 15. An ACLU press release reports on these developments.

Pope Francis Apologizes To Canada's Indigenous Peoples For Residential School System

Pope Francis yesterday in his first public event on his trip to Canada addressed representatives of Canada's Indigenous Peoples to apologize for the policies of cultural destruction and forced assimilation which led to abusive residential schools operated by the Church. In his address (full text), the Pope said in part:

It is necessary to remember how the policies of assimilation and enfranchisement, which also included the residential school system, were devastating for the people of these lands.... I think back on the stories you told: how the policies of assimilation ended up systematically marginalizing the indigenous peoples; how also through the system of residential schools your languages and cultures were denigrated and suppressed; how children suffered physical, verbal, psychological and spiritual abuse; how they were taken away from their homes at a young age, and how that indelibly affected relationships between parents and children, grandparents and grandchildren....

Although Christian charity was not absent, and there were many outstanding instances of devotion and care for children, the overall effects of the policies linked to the residential schools were catastrophic. What our Christian faith tells us is that this was a disastrous error, incompatible with the Gospel of Jesus Christ. It is painful to think of how the firm soil of values, language and culture that made up the authentic identity of your peoples was eroded, and that you have continued to pay the price of this. In the face of this deplorable evil, the Church kneels before God and implores his forgiveness for the sins of her children.... I myself wish to reaffirm this, with shame and unambiguously. I humbly beg forgiveness for the evil committed by so many Christians against the indigenous peoples.

Vatican News reports on the Pope's address.

England's Law Commission Urges Reform Of Law Regulating Weddings

On July 19, the Law Commission of England and Wales released a 452-page report (full text) on reform of English weddings law. The Commission summarized its recommendations:

We recommend comprehensive reform from the foundations up: an entirely new scheme to govern weddings. Our recommendations will transform the law from a system based on regulation of buildings to one based on regulation of the officiant responsible for the ceremony.

Under our recommendations, all couples, as well as all religious groups and (if enabled by Government to conduct weddings) non-religious belief groups, will have the freedom to decide where and how their weddings will take place.

Law & Religion UK has extensive discussion of the proposals.

Cert. Filed In Scientology Arbitration Case

A petition for certiorari (full text) was filed last week in Church of Scientology International v. Bixler, (cert. file 7/19/2022). In the case, a California state appellate court held that former Church of Scientology members were not bound by their agreement to submit all disputes with the Church to the Church's Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the Church. (See prior posting.) Law & Crime reports on the filing.

Recent Articles of Interest

From SSRN:

• SpearIt, Muslims in American Prisons: Advancing the Rule of Law Through Litigation Praxis, (Journal of Islamic Law, Vol. 3 (2022)).
• Richard Luedeman, Voting as a Genuinely Religious Act in a World of Free Exercise Maximalism, (UC Davis Law Review Online (2021)).
• Lael Daniel Weinberger, Is Church Autonomy Jurisdictional?, (Loyola University Chicago Law Journal, Forthcoming).
• Teresa Stanton Collett & Paul Benjamin Linton, Brief Amicus Curiae of the Prolife Center at the University of St. Thomas in Support of Petitioners in Dobbs v. Jackson Women's Health Center, (U of St. Thomas (Minnesota) Legal Studies Research Paper Forthcoming).
• F. Lee Francis, Who Decides: What the Constitution Says about Parental Authority and the Rights of Minor Children to Seek Gender Transition Treatment, (Southern Illinois University Law Journal, Forthcoming).

From SmartCILP:

• Charlotte Garden, Ministerial Employees and Discrimination without Remedy, 97 Indiana Law Journal 1007-1024 (2022).
• Mark Goldfeder, Defining Antisemitism, 52 Seton Hall Law Review 119-198 (2021).

11th Circuit Remands Establishment Clause Case That Had Relied On Lemon Test

In Rojas v. City of Ocala, Florida, (11th Cir., July 22, 2022), the U.S. 11th Circuit Court of Appeals vacated and remanded a district court's Establishment Clause decision that had relied on the now-repudiated Lemon test. In the case, plaintiffs who are atheists and humanists sued, challenging a prayer vigil that was co-sponsored by the Ocala police department held in response to a shooting spree that had injured several children. The district court granted summary judgment to plaintiffs.  On appeal, the court said in part:

When the district court granted summary judgment, it believed that the analytical framework articulated in Lemon v. Kurtzman ... was the controlling law. Even though many Justices soured on Lemon over the years, the Court seemingly could not rid itself of that much-maligned decision. Justice Scalia colorfully described Lemon as “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”...

After this appeal was filed, however, the Supreme Court drove a stake through the heart of the ghoul and told us that the Lemon test is gone, buried for good, never again to sit up in its grave. Finally and unambiguously, the Court has “abandoned Lemon and its endorsement test offshoot.” Kennedy v. Bremerton Sch. Dist. ... (2022)....

[T]he Supreme Court has definitively decided that Lemon is dead — long live historical practices and understandings....

We remand this case to the district court to give it an opportunity to apply in the first instance the historical practices and understandings standard endorsed in Kennedy.

Ecclesiastical Abstention Doctrine Deprives Civil Court Of Jurisdiction Over Seventh-Day Adventist Church Dispute

In In re Texas Conference of Seventh-Day Adventists, (TX App, July 21, 2022), a Texas state appellate court held that the eccleisastical abstention doctrine deprives the trial court of jurisdiction over a dispute between the Fort Worth Northwest Seventh-Day Adventist Church and the Conference, its hierarchical parent body. At issue was control over the Church's funds and property. The court said in part:

The Northwest Church’s suit asks civil courts to resolve its dispute with the Conference based on its rights under the Church Manual. This is precisely the type of civil court inquiry that the First Amendment prohibits....

The Northwest Church’s case is not one in which it has separated from its hierarchical organization and in which it and the hierarchical organization dispute who owns what.... Rather, this is a dispute over who has the authority to make decisions on behalf of the Northwest Church....

Admittedly, under the Church Manual, the local church funds appear to belong to the “local church”.... Nevertheless, the dispute is over whether the Northwest Church is the “local church,” as contemplated by the Church Manual, when the Conference has not recognized the newly elected governing board.

Whether the Conference acted in a manner consistent with the Church Manual is an internal matter for the Northwest Church and the Seventh-Day Adventist hierarchy to resolve.... The Northwest Church’s claims are inextricably intertwined with matters of doctrine or church governance....

11th Circuit Upholds Georgia's LIFE Act

In Sistersong Women of Reproductive Justice Collective v. Governor of State of Georgia, (11th Cir., July 20, 2022), the U.S. 11th Circuit Court of Appeals upheld the constitutionality of Georgia's Living Infants Fairness and Equality (LIFE) Act which amends the definition of "natural person" in Georgia's statutes to mean "any human being including an unborn child". It also prohibits abortions after a fetal heartbeat is detected. The court said in part:

The district court entered a summary judgment for the abortionists challenging the Georgia law and permanently enjoined state officials from enforcing it. But intervening Supreme Court precedent, Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022), makes clear that no right to abortion exists under the Constitution, so Georgia may prohibit them. And the expanded definition of natural person is not vague on its face. We vacate the injunction, reverse the judgment in favor of the abortionists, and remand with instructions to enter judgment in favor of the state officials.

Reporting on the decision, CBS News also noted:

Normally, the ruling wouldn't take effect for weeks. But the court issued a second order Wednesday allowing the law to take effect immediately.

11th Circuit Denies En Banc Review In Conversion Therapy Case

In Otto v. City of Boca Raton, Florida, (11th Cir., July 20, 2022), the U.S. 11th Circuit Court of Appeals, by a vote of 7-4,, denied an en banc rehearing in a case in which a panel decision of the court struck down a conversion therapy ban.  (See prior posting). Concurring and dissenting opinions spanning 110 pages accompanied the brief order denying review. Judge Grant, joined by Judges Branch and Lagoa filed an opinion concurring in the denial, saying in part:

The perspective enforced by these local policies is extremely popular in many communities. And the speech barred by these ordinances is rejected by many as wrong, and even dangerous. But the First Amendment applies even to—especially to—speech that is widely unpopular....

Today’s dissenters decry the result of the panel decision—namely, that speech they consider harmful is (or may be) constitutionally protected. But to reach their preferred outcomes, they ask us to ignore settled First Amendment law

Judge Jordan joined by Judge Wilson, and joined in part by Judges Rosenbaum and Pryor, said in part:

[T]he panel majority in this preliminary injunction appeal ignored the clear error standard of review—never acknowledging or applying it —and substituted its own factual findings for those of the district court on important issues.

Judge Rosenbaum joined by Judge Pryor filed a dissenting opinion, saying in part

By incorrectly labeling talk therapy mental-healthcare treatments as mere “conversation” and “not medical at all,” the panel opinion necessarily subjects to First Amendment strict scrutiny all government regulations that require licensed mental-healthcare professionals to comply with the governing substantive standard of care in administering talk therapy. And that scrutiny rings the death knell for any such regulation.

San Francisco Permit Requirement For Park Church Services Enjoined

In Stewart v. City and County of San Francisco, California, (ND CA, June 22, 2022), a California federal district court issued a preliminary injunction barring enforcement of a provision in the San Francisco Park Code requiring a permit for any religious event held in a public park involving 50 or more persons. The court found the provision to be a content-based restriction that triggers strict scrutiny, and concluded that it violates free speech and free exercise protections. However the court upheld a provision requiring a permit for events utilizing sound amplification equipment. Plaintiffs hold their weekly church services in public parks.

DOJ Sues City For Failure To Accommodate Seventh Day Adventist Employee

A Title VII lawsuit was filed last week by the Justice Department on behalf of a newly-hired Seventh Day Adventist detention officer against the city of Lansing, Michigan. The complaint (full text) in United States v. City of Lansing, Michigan, (WD MI, filed 7/15/2022) alleges that the city "failed to provide [the officer] with a reasonable accommodation or to show undue hardship and terminated her employment because she could not work from Friday sundown through Saturday sundown due to her religious observance of the Sabbath..." The Justice Department issued a press release announcing the filing of the lawsuit.

Non-Profits Are Seeking IRS Classification As "Churches"

Both Baptist News Global and ProPublica have recently published lengthy investigative articles on the growing number of non-profit entities that have sought classification by the IRS as a "church" or "association of churches" or an "integrated auxiliary of a church." this exempts them from filing the annual Form 990 required of other non-profits. Form 990 disclose income, expenditures and compensation of officers, directors and key employees.

Britain's Sexual Offenses Act Now Outlaws Child Sexual Abuse By Religious Instructors

Britain's Sexual Offenses Act 2003 (Secs. 16-19) criminalizes abuse of a position of trust by engaging in sexual activity with a child or causing a child to witness sexual activity.  As reported by Law & Religion UK, amendments to the Act which expand the definition of "position of trust" came into effect on June 28. The Act now defines "position of trust" to include any person who knowingly coaches, teaches, trains, supervises or instructs on a regular basis in a sport or a religion. Religion is defined to include

(a) a religion which involves belief in more than one god, and (b) a religion which does not involve belief in a god.

Southwest Flight Attendant Fired Over Anti-Abortion Social Media Posts Wins $5.1M Verdict

One Mile At A Time reports on a jury verdict handed down last Thursday:

After a roughly five year legal battle, a former Southwest flight attendant has been awarded damages over being fired from the airline. Southwest claims that the flight attendant violated the company’s social media policy with her public and offensive anti-abortion posts, and she was also accused of harassing the union president, after union dues were used to attend a rally in Washington DC.

The article explains: 

 A federal jury in Texas has sided with the former Southwest flight attendant, arguing that she was unlawfully discriminated against for her sincerely held religious beliefs. Furthermore, the jury found that the union did not fairly represent her and retaliated against her for expressing her views.

If this stands, Carter will be awarded $5.3 million, including $4.15 million from Southwest Airlines and $1.15 million from Transportation Workers Union of America (TWU) Local 556. This consists primarily of punitive damages, but also consists of some back pay from the airline.

Recent Articles of Interest

From SSRN:

• Adnan Zulfiqar, The Dominion of Rights, the Resistance of Duties, (Rutgers Journal of Law and Religion, Vol. 22, No. 3, 2022).
• Francis Beckwith, Separated at Baptism: What the Mortara Case Can Teach Us About the Rejection of Natural Justice by Integralists and Progressives, (Brigham Young University Law Review, Vol. 47, No. 4, 2022).
• Dov Fox, Medical Disobedience, (July 2, 2022).
• Cometan, Recognition of Religion or Belief (RoRB), (June 29, 2022).
• Intisar A. Rabb, Metacanons: Comparative Textualism, (May 2022).
• James Diamond, An Uncomfortable Truth: Law as a Weapon of Oppression of the Indigenous Peoples of Southern New England,(Roger Williams University Law Review, Vol. 27, No. 2, 2022).
• Rosemary Teele Langford & Malcolm Edward Anderson, Charity Trustees: Governance Duties and Conflicts of Interest, ((2022) 28 (7) Trusts and Trustees).

From SSRN (Islamic Law):

• Intisar A. Rabb, Legal Canons—In the Classroom and in the Courtroom or, Comparative Perspective on the Origins of Islamic Legal Canons, 1265–1519, (Villanova Law Review, Vol. 66, No. 831-63, 2021).
• Intisar A. Rabb, Enforcement and Punishment in Medieval Islamic Law, (in Cultural History of Crime and Punishment in the Medieval Age (Sarah McDougall, Karl Shoemaker eds., Bloomsbury 2022) [Forthcoming]).
• Sandra Antoniazzi, Islamic Banks and the European Banking System: Critical Profiles and Law, (European Banking Institute Working Paper Series No 125, 2022).
• Adnan Zulfiqar, The Immorality of Incarceration: Between Jāvēd Aḥmad Ghāmidī and Angela Y. Davis, (Journal of Islamic Law [Harvard] (2022)).

From SmartCILP:

• Christian Zendri, Book Review. Erasmo da Rotterdam, Prefazioni ai Vangeli, 1516–1522, edited by Silvana Seidel Menchi, [Abstract], 61 American Journal of Legal History 335-337 (2021).

Court Enjoins DOE and EEOC From Enforcing LGBT Anti-Discrimination Interpretations Because Of Procedural Issues

 In State of Tennessee v. U.S. Department of Education, (ED TN, July 15, 2022), a Tennessee federal district court enjoined the Department of Education and the EEOC from enforcing against 20 states that are plaintiffs in the case documents interpreting Title IX and Title VII as including prohibitions on discrimination on the basis of sexual orientation or gender identity. According to the court:

Plaintiffs have demonstrated that they are likely to succeed on their claim that Defendants’ guidance documents are legislative rules and that the guidance is invalid because Defendants failed to comply with the required notice and comment procedures under the APA.

CNN reports on the decision.

Texas Sues Feds Over Abortion Guidance Given To Hospital Emergency Rooms

On Thursday, the state of Texas filed suit against the Biden administration challenging HHS's guidance to hospitals that the Emergency Medical Treatment & Labor Act requires hospital emergency rooms to perform an abortions when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition. The complaint (full text) in State of Texas v. Becerra, (ND TX, filed 7/14/2022) alleges in part:

The Biden Administration’s response to Dobbs v. Jackson Women’s Health Org.... which ended the terrible regime of Roe v. Wade, is to attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic.

The suit contends that the guidance exceeds statutory authority and violates various constitutional provisions. The Texas attorney general issued a press release announcing the filing of the lawsuit.