Texas Supreme Court Dismisses Defamation Actions Brought Against Anti-Abortion Proponents

In Lilith Fund for Reproductive Equity v. Dickson, (TX Sup. Ct., Feb. 24, 2023), the Texas Supreme Court in two companion cases ordered trial courts to dismiss defamation actions brought against Mark Lee Dickson and Right to Life East Texas.  At issue were statements Dickson made on his own and on Right to Life's Facebook pages describing plaintiffs, two pro-choice organizations, as "criminal organizations" and saying that the organizations "exist to help pregnant Mothers murder their babies." The postings were part of a campaign to convince other Texas cities to enact anti-abortion ordinances similar to one enacted in 2019 by Waskom, Texas. The court, concluding that defendants' postings were expressions of opinion rather than fact, and that the suits should be dismissed under the Texas Citizens Participation Act, said in part:

A reasonable person, equipped with the national, historical, and temporal context, and informed by the overall exhortative nature of his posts, could not understand Dickson as conveying false information about the plaintiffs’ underlying conduct, as opposed to his opinion about the legality and morality of that conduct. A reasonable person would understand that Dickson is advancing longstanding arguments against legalized abortion, in the context of an ongoing campaign to criminalize abortion, on public-discourse sites regularly used for such advocacy. 

The plaintiffs argue that opinion based on a false assertion of fact can be actionable defamation. In other words, they argue that Dickson’s advocacy declaring them to be “criminal” goes beyond mere opinion....

Notable is what Dickson does not say in his statements. He does not refer to the Penal Code nor to any Texas criminal law. He does not falsely claim that the plaintiffs have been arrested or prosecuted, or otherwise indicate to the reasonable person that the plaintiffs have been convicted of crimes based on specific conduct. To the contrary, Dickson invokes a moral premise, calling for his readers to change existing law to match that moral premise....

A subjective belief, even when sincerely held by a speaker, is not the standard for determining whether a statement of opinion is defamatory. The touchstone is the reasonable reader’s reception, not the speaker’s self-serving statements of intent or interpretation.

Justice Devine, joined by Justice Blacklock, filed a concurring opinion saying in part:

I join in full the Court’s well-reasoned and thorough opinion. But it is regrettable that it took the courts of our State so long to dismiss the Funds’ obviously meritless lawsuits that were filed to silence their political adversaries. Defamation law must never become a weapon of intimidation against opponents, no matter the party or the side of a political issue.

The Texas Supreme Court has links to the briefs and oral arguments in the case.  Jonathan Turley discusses the decision.

Recent Articles of Interest

From SSRN:

• Andrew M. Koppelman, Madison's Non Sequitur: A Comment on Vincent Phillip Muñoz, Religious Liberty and the American Founding, (American Political Thought: A Journal of Ideas, Institutions, and Culture , forthcoming).
• Leah Litman, Disparate Discrimination, (Michigan Law Review, Vol. 121, No. 1, 2022).
• C'Zar Bernstein, The Constitutional Personality of the Unborn, (October 8, 2022).
• Dara E. Purvis, Transgender Students and the First Amendment, (February 18, 2023).
• Jeremiah A. Ho, Colonizing Queerness, (February 21, 2023).
• R. George Wright, University Missions and Legal Limitations on Campus Speech, (February 18, 2023).
• Benjamin Eidelson, The Etiquette of Equality, (51 Philosophy & Public Affairs (2023)).
• Melissa J Ganz, Corporate Persons, Collective Responsibility, and the Literary Imagination, (Critical Analysis of Law: An Interdisciplinary and International Law Review 9, no. 2 (Fall 2022): 46-5).
• Lloyd Hitoshi Mayer, Nonprofits, Taxes, and Speech, (56 Loyola of Los Angeles Law Review (Forthcoming)).

From SmartCILP:

• Ruth L. Okediji, Is the Public Domain Just?: Biblical Stewardship and Legal Protection for Traditional Knowledge Assets, 45 Columbia Journal of Law & Arts 461-524 (2022).
• Nicole Stelle Garnett & Patrick E. Reidy, Religious Covenants, 74 Florida Law Review 821-878 (2022).
• Francesco Seatzu, Extraditing Persons from Italy to Vatican City: Chimera or Real Possibility, 32 Indiana International & Comparative Law Review 515-530 (2022).

Nuns' Hostile Work Environment and Retaliation Claims Can Move Forward

In Brandenburg v. Greek Orthodox Archdiocese of North America, (SD NY, Feb. 23, 2023), a New York federal district court held that it can proceed to adjudicate hostile work environment and some of the retaliation claims brought by two nuns against the Greek Orthodox Archdiocese and several of its clergy members. The nuns claimed that Father Makris, the school's director of student life and their "spiritual father" subjected them to unwanted sexual attention for 13 to 14 years. According to the court:

[T]he ministerial exception flows from the plaintiff’s status as a “minister.” In this case, however, Defendants’ argument has nothing to do with the fact that Plaintiffs were sanctified nuns; instead, it flows from Father Makris’s status as minister and the alleged rationale for his conduct.... 

These and other cases make plain that the First Amendment does not shield all decisions by religious institutions, whether or employment-related or otherwise, from review. Instead, a court is barred from adjudicating a dispute involving a religious institution “only where resolution of the dispute will require the Court or a jury to choose between competing religious views or interpretations of church doctrine or dogma in order to resolve the dispute.”... 

Defendants do ... assert a religious rationale for ... one relatively minor aspect of Father Makris’s conduct: his kissing of Plaintiffs..... [T]he fact that Defendants proffer a religious rationale does not mean that Defendants should be granted immunity from Plaintiffs’ claims. It merely means that Plaintiffs “may not offer a conflicting interpretation of the teachings of the [Greek Orthodox] Church or canon law to rebut [Defendants’] proffered religious reason.”... [H]owever, Plaintiffs are entitled to offer evidence and argument that Defendants’ proffered religious rationale was not the true rationale for Father Makris’s behavior.

FBI Agents Have Qualified Immunity in Suit by Muslims Placed on No-Fly List for Refusing to Spy on Their Communities

On remand from the U.S. Supreme Court (see prior posting), a New York federal district court in Tanvir v. Tanzin, (SD NY, Feb. 24, 2023), held that FBI agents who placed or kept plaintiffs on the federal no-fly list in retaliation for their refusal to act as informants on their Muslim communities have qualified immunity in a suit for damages under RFRA. Plaintiffs contend that gathering information on fellow Muslims contravenes their religious beliefs.  The court concluded that FBI agents had not violated a clearly established law, saying in part:

The Court is sympathetic to Plaintiffs, who claim that, despite never posing a threat to aviation security, they were, for years, unable to visit ailing loved ones outside of the United States, burdened financially with the loss of job opportunities which required them to travel, and repeatedly forced to endure the basic indignity of being denied boarding passes for flights to which they had legitimately purchased tickets. Accepting their allegations as true, Plaintiffs were subjected to this treatment by way of the FBI’s misuse of the No Fly List simply because they were Muslim, and because they refused to spy on other members of their faith. 

Nevertheless—and notwithstanding varied criticisms of the doctrine of qualified immunity, the Court is required to apply the law faithfully to the issues before it....

At the time of Defendants’ alleged activity, no federal court had addressed claims—let alone actually held—that law enforcement pressuring individuals to inform on members of their religious communities through retaliatory or coercive means substantially burdened their religious exercise in violation of RFRA. Plaintiffs point to four cases in an attempt to make out their claim of clearly established law at the time of the alleged violations, but each of those cases are plainly distinguishable.....

Oklahoma AG Withdraws Opinion Permitting Sectarian Charter Schools

As previously reported, last December Oklahoma Attorney General John M. O'Connor issued Attorney General Opinion 2022-7 concluding that the ban in Oklahoma law on publicly funded charter schools being sectarian or religiously affiliated is unconstitutional. On Feb. 23, current state Attorney General Gentner Drummond withdrew that Opinion issued by his predecessor.  In a letter to the Executive Director of the Statewide Virtual Charter School Board (full text) explaining his action, the AG said in part:

Without binding precedent clearly addressing whether charter schools are state actors, this office is not currently comfortable advising your board members to violate the Oklahoma Constitution's clear directive: "Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and free from sectarian control...." Okla. Const. art I, §5 (emphasis added). Likewise, without clear precedent, this office is not comfortable advising you to violate the Legislature's clear directive that "[a] charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations." 70 O.S. §3-136(A)(2) (emphasis added).

Noting that Opinion 2022-7 was issued in anticipation of a Charter School application by St. Isidore of Seville Catholic Virtual School, Drummond's letter pointed out:

[A]pproval of the SISCVS application will create a slippery slope. While many Oklahomans undoubtedly support charter schools sponsored by various Christian faiths, I doubt most Oklahomans would want their tax dollars to fund a religious school whose tenets are diametrically opposed to their own faith. Unfortunately, the approval of a charter school by one faith will compel the approval of charter schools by all faiths, even those most Oklahomans would consider reprehensible and unworthy of public funding. Consequently, I urge your board members to use caution in reviewing the SISCVS application.

Virginia Legislature Passes Law Protecting Houses of Worship from Discriminatory Restrictions During Emergencies

Yesterday, the Virginia General Assembly gave final passage to HB 2171 (full text). The bill, which is a reaction to restrictions imposed during the COVID pandemic, provides:

No rule, regulation, or order issued by the Governor or other governmental entity pursuant to this chapter shall impose restrictions on the operation of a place of worship that are more restrictive than the restrictions imposed on any other business, organization, or activity.

Virginia Mercury, reporting on the bill's passage, says that Gov. Glenn Youngkin is expected to sign the bill. It quotes a proponent of the bill as saying: "This bill means the governor’s not gonna open liquor stores and close churches."

Seattle Becomes First U.S. City To Outlaw Caste Discrimination

Seattle, Washington this week became the first U.S. city to add "caste" discrimination to its anti-discrimination laws. The Ordinance (full text), enacted on Feb. 21, in Section 14.04.030 defines caste as:

a system of rigid social stratification characterized by hereditary status, endogamy, and social barriers sanctioned by custom, law, or religion.

The Ordinance begins with some two-dozen "Whereas" clauses. They assert in part that:

... caste discrimination is based on birth and descent, and occurs in the form of social segregation, physical and psychological abuse, and violence; and

... caste discrimination manifests in employment, education, and housing....

 Time has a lengthy background article on the new legislation.

Christian Teacher Did Not Show That Her Removal Was Retaliation for Protected Speech or Beliefs

In Barr v. Tucker (SD GA, Feb. 21, 2023), a Georgia federal district court denied a preliminary injunction to plaintiff whose position as a substitute elementary school teacher was terminated after she complained to her own children's teachers and to the principal about the school librarian's reading aloud to classes a book that contains illustrations of same-sex couples with school-age children. The court explained:

Plaintiff told Defendant Tucker [the school principal] that she believed the book was '"inappropriate for young children, conflicted with her Christian faith, and appeared to bean effort to indoctrinate young children into a progressive ideological agenda[]" and asked that her children be excused from the read-aloud program.

Plaintiff contended that the school had retaliated against her for her exercising her free speech and free exercise rights. The court disagreed, saying in part:

... Plaintiff's inquiries principally addressed her personal concerns about exempting her children from the read-aloud program, and the context of her speech suggests she spoke on a matter of private or personal interest.

Accordingly ... Plaintiff has failed to establish a substantial likelihood of success in showing she spoke on a matter of public concern .... As a result. Plaintiff has also failed to establish a substantial likelihood of success on the merits of her First Amendment [free speech] retaliation claim....

The Court accepts, as Plaintiff alleges, that her sincerely held religious beliefs include ''that God created marriage to be between one man and one woman, and that family formation should occur within the confines of heterosexual marriage."... However, at this stage. Plaintiff has not established that she is substantially likely to succeed on showing that Defendants substantially burdened her religious beliefs by terminating her.

It is not clear that Defendants called for Plaintiff's removal due to her religious beliefs....

Defendants maintain they removed Plaintiff due to her inappropriately timed interactions with her children's teachers and concern about how she would support students or parents that identify as gay, not because of her beliefs about marriage and family formation.

Alaska Supreme Court Reverses Dismissal of Muslim Inmate's RLUIPA Claims

In Din v. State of Alaska, Department of Corrections, (AK Sup. Ct., Feb. 22, 2023) the Alaska Supreme Court vacated a trial court's dismissal of a suit brought under RLUIPA and the Alaska constitution by a Muslim inmate and remanded the case for further factual development.  At issue was the inmate's requests to pray five time per day using scented prayer oils and to eat halal meat as part of his diet. Prison rules only allowed use of scented oils for weekly outdoor congregate religious activities and only provided vegetarian or vegan meals for those requesting a halal diet. The court concluded that both restrictions imposed a substantial burden on the inmate's religious exercise. It went on:

Prison security is a compelling government interest. But DOC’s position that possessing prayer oils is prohibitively dangerous is difficult to reconcile with the fact that it allows inmates to possess “skin cream/oil.” Inmate and staff health are also important government interests, and DOC asserts that “even a seemingly mild scent may cause an adverse respiratory reaction.” But DOC’s position is difficult to reconcile with its policies allowing prisoners to possess other fragranced items, like deodorant, hair spray, and air fresheners....

DOC also asserts that the estimated additional cost of providing “halal/kosher meals . . . to accommodate all Alaska inmates who claim to need a special halal/kosher diet . . . would exceed $1,000,000 annually.” Din contends that this is not a compelling reason because providing him pre-packaged halal food would cost DOC approximately $7,700 more than the cost of regular meals, a small sum compared to its massive budget. 

Cost management obviously is an important government interest. But Congress contemplated that RLUIPA may “require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise”....

The court also concluded that there are genuine issues of material fact as to whether present policies are the least restrictive means to achieve the state's interests. 

DOE Proposes to Rescind Trump Administration Rules Shielding Student Religious Groups at Public Colleges

The Department of Education yesterday released a Notice of Proposed Rulemaking (full text) proposing to rescind two related rules adopted by the Trump Administration in September 2020. Those rules require that public colleges and universities which receive DOE grants (either direct grants or grants under state-administered formula grant programs) must not deny to religious student groups any of the rights, benefits, or privileges that other student groups enjoy because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely-held religious beliefs.

According to yesterday's Notice of Proposed Rulemaking:

Some faith-based and civil rights organizations ... worried that [these rules] could be interpreted to require IHEs [institutions of higher education] to go beyond what the First Amendment mandates and allow religious student groups to discriminate against vulnerable and marginalized students....

There is nothing in the regulatory text that clarifies or guarantees that an institution may insist that such religious organizations comply with the same neutral and generally-applicable practices, policies, and membership and leadership standards that apply equally to nonreligious student organizations, including but not limited to nondiscrimination requirements.

The disparity between the language of the regulatory text and the Department’s stated intent has engendered confusion and uncertainty about what institutions must do to avoid risking ineligibility for covered Department grants....

If IHEs do discriminate against religious student organizations on the basis of the organizations’ beliefs or character, such organizations can and do seek relief in Federal and State courts, which have longstanding expertise in and responsibility for protecting rights under the Free Speech and Free Exercise Clauses, including in cases where there are complex, fact-dependent disputes about whether a policy is neutral and generally-applicable.

Daily Citizen critiques the proposal.

The Department of Education yesterday also published a Request for Information on the effect of current free speech protections required of DOE grantees.

Catholic Bookstore Sues Challenging Florida City's Public Accommodation Law

Suit was filed yesterday in a Florida federal district court challenging the constitutionality of applying Jacksonville's public accommodation law to Queen of Angels, a Catholic bookstore. The complaint (full text) in The Catholic Store, Inc. v. City of Jacksonville, (MD FL, filed 2/22/2023) alleges Free Speech, Free Exercise and vagueness claims, saying in part:

Following a disturbing nationwide trend, the City has expanded its public-accommodation law to cover gender-identity discrimination and thereby require businesses to address customers using their preferred pronouns and titles regardless of a customer's biological sex. The law even prevents businesses from publishing "any communication" a customer or government official might subjectively interpret as making someone feel "unwelcome, objectionable, or unacceptable," such as statements opposing gender-identity ideology.

All this in turn puts Jacksonville's law on a collision course with the First Amendment and ... "Queen of Angels"...,.The bookstore also publishes a website (with blog) any YouTube channel to promote its Catholic faith and products.

As a Catholic bookstore, Queen of Angels follows Catholic teachings-- including the belief that God created everyone in His image, male or female, worthy of dignity and respect. The store serves and sells everything to everyone regardless of gender identity. The bookstore just cannot speak contrary to its beliefs-- to affirm, for example, the view that sex can be changed. So the store cannot use customers' pronouns or titles contrary to their biological sex. Queen of Angels must instead profess an ideological view it opposes....  In effect, the law requires this Catholic bookstore to stop being fully Catholic....

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

Cert. Denied in Challenge to Arkansas' Ban on Companies Boycotting Israel

The U.S. Supreme Court yesterday denied review in Arkansas Times LP v. Waldrip, (Docket No. 22-379, certiorari denied 2/21/2023). (Order List.)  In the case, the U.S. 8th Circuit Court of Appeals sitting en banc, in a 9-1 opinion, upheld against a free speech challenge Arkansas' law requiring public contracts to include a certification from the contractor that it will not boycott Israel.  The 8th Circuit held that the law only bans non-expressive commercial decisions. (See prior posting.) JNS reports on the denial of certiorari. Here is the SCOTUSblog case page with links to briefs filed in the case.

SEC Imposes $5M In Fines On Mormon Church and Its Adviser For Concealing Ownership of Billions In Securities

In In re Ensign Peak Advisor, Inc., (SEC, Feb. 21, 2023), the Securities and Exchange Commission instituted cease and desist proceedings against the Church of Jesus Christ of Latter Day Saints and the entity which manages the Church's assets for making misleading filings designed to conceal the fact that the Church had $32 billion of publicly traded securities in reserve funds in 2018 and $37.8 billion by 2020. The SEC accepted the Offers of Settlement put forward by the respondents.  SEC Release 2023-35 summarizes the SEC's findings and the sanctions imposed:

The Securities and Exchange Commission today announced charges against Ensign Peak Advisers Inc., a non-profit entity operated by The Church of Jesus Christ of Latter-day Saints to manage the Church’s investments, for failing to file forms that would have disclosed the Church’s equity investments, and for instead filing forms for shell companies that obscured the Church’s portfolio and misstated Ensign Peak’s control over the Church’s investment decisions. The SEC also announced charges against the Church for causing these violations. To settle the charges, Ensign Peak agreed to pay a $4 million penalty and the Church agreed to pay a $1 million penalty.

The SEC’s order finds that, from 1997 through 2019, Ensign Peak failed to file Forms 13F, the forms on which investment managers are required to disclose the value of certain securities they manage. According to the order, the Church was concerned that disclosure of its portfolio, which by 2018 grew to approximately $32 billion, would lead to negative consequences....

Market Watch reports on the SEC's action.

Parties Cannot Be Forced to Arbitration Over Issues Surrounding Jewish Religious Divorce

In Bierig-Kiejdan v. Kiejdan, (NJ App., Feb. 16, 2023), a New Jersey state appeals court held that a family court judge could not order parties to a divorce to return to arbitration over issues surrounding which religious tribunal should oversee the issuance of a get-- Jewish divorce document-- when the parties' original agreement to arbitrate terms of the divorce had expired and they had not entered a new arbitration agreement covering issues that would arise later. JD Supra reports on the decision.

Another Challenge to Texas' Heartbeat Abortion Ban Fails on Standing Grounds

In Davis v. Sharp, (WD TX, Feb. 15, 2023), another attempt to challenge Texas' SB 8, the heartbeat abortion ban enforceable only by private lawsuits, failed on standing grounds.  The suit was brought by Stigma Relief Fund and three of its supporters against defendants who threatened to enforce the law against abortion funds and their associates for aiding illegal abortions. However, because defendants filed statements disclaiming any intention to sue the particular fund and supporters who are plaintiffs in this case, plaintiffs failed to show any injury sufficient to give them standing to sue. Law & Crime reports on the decision.

5th Circuit Rejects Pastor's Jurisdictional Theory of Religion Clauses

 In Spell v. Edwards, (5th Cir., Feb. 17, 2023), the U.S. Court of Appeals for the 5th Circuit affirmed the dismissal of a suit brought by a pastor and his church claiming that their First Amendment rights were violated by enforcement against them of COVID orders in the early months of the pandemic that barred their holding church services. The court said in part:

Pastor Spell explicitly waived the argument that defendants’ actions violated his constitutional rights under current free exercise jurisprudence....  Pastor Spell instead advanced an absolute, categorical theory of the Religion Clauses, arguing that church assembly is “beyond the jurisdiction of the government.”... He maintained that, under Everson v. Board of Education of Ewing Township, there is a “jurisdictional limit on intrusion by the state into the church.”  In so doing, he expressly waived other arguments.

Pastor Spell is the master of his case, and he cannot prevail on the theory he advances. Controlling precedent directly contradicts Pastor Spell’s jurisdictional theory of the Religion Clauses.

Unfiltered With Kiran reports on the decision.

Nurse Denied Religious Exemption From Vaccine Mandate Loses Title VII and Free Exercise Challenges

In Riley v. New York City Health and Hospitals Corp., (SD NY, Feb. 17, 2023), a New York federal district court dismissed without prejudice a suit by a Christian nurse in a hospital's surgical unit who claimed that denying her a religious exemption from the hospital's COVID vaccine mandate violated her rights under Title VII and the Free Exercise Clause. The court said in part:

Title VII cannot be used to require employers to break the law..... When the defendant implemented its vaccine mandate, [New York State Department of Health Rule] Section 2.61, a binding state regulation, required the defendant to “continuously require personnel” like the plaintiff “to be fully vaccinated against COVID-19, absent receipt of” a medical exemption. 10 N.Y.C.C.R. § 2.61(c)....

The plaintiff does not argue that the defendant’s vaccine mandate was not generally applicable. She argues only that the mandate “was not neutral and was and is hostile to the religious beliefs of the plaintiff, as it presupposed the illegitimacy of her religious beliefs and practices.”... An enactment violates the neutrality principle if it “explicitly singles out a religious practice” or “targets religious conduct for distinctive treatment.”... The plaintiff pleads no facts suggesting that the defendant’s mandate is guilty of either. To the extent the plaintiff alleges that the mandate’s lack of a religious exception alone makes it non-neutral, We The Patriots forecloses that argument. See 17 F.4th at 282....

White House Celebrates 2nd Anniversary of Its Office of Faith-Based Partnerships

Last Friday, the White House issued a Fact Sheet titled Biden-⁠Harris Administration Celebrates the Second Anniversary of the Reestablishment of the White House Office of Faith-Based and Neighborhood Partnerships (full text). Among other things, the Fact Sheet discusses ten initiatives undertaken with the goal of "Safeguarding the right to practice faith without fear and other aspects of religious freedom."

Recent Articles of Interest

From SSRN:

• Gentian Zyberi & Eduardo Sánchez Madrigal, The Practice of Judicial and Quasi-Judicial Human Rights Bodies on Conscientious Objection to Military Service, (Michael Wiener and David Fernández Puyana (eds.), A Missing Piece for Peace: Bringing Together the Right to Peace and Freedom of Conscientious Objection to Military Service (UPEACE Press, 2022), pp. 121-139).
• Josh Blackman, Howard Slugh & Tal Fortgang, Abortion and Religious Liberty, (Texas Review of Law & Politics, Vol. 27, 2023).
• Amanda Harmon Cooley, Quiet Encroachments on School Prayer Jurisprudence, (January 31, 2023).
• Dallan Flake, When "Close Enough" is Not Enough: Accommodating the Religiously Devout, (February 14, 2023).
• Roberta Lea Brilmayer, Abortion, Full Faith and Credit, and the 'Judicial Power' Under Article III: Does Article IV of the U.S. Constitution Require Sister-state Enforcement of Anti-abortion Damages Awards?,(January 10, 2023).
• Peter Kirsanow, Gail L. Heriot & Dan Morenoff, Brief of the American Civil Rights Project as Amicus Curiae in Support of Appellee and Affirmance in Tennessee v. Department of Education, (January 31, 2023).

From SmartCILP:

• Symposium: Berle XII: Corporate Capitalism and the City of God, Seattle University Law Review, Vol. 45, issue 1 (2021).
• Asma T. Uddin, Religious Liberty Interest Convergence, 64 William & Mary Law Review 83-168 (2022).

Military Will Provide Travel Allowances for Service Members Who Need to Travel to Obtain Abortions

In a press release issued on Feb. 16, the Department of Defense announced that it has issued policy memoranda (full texts1, 2, 3) that assure access to reproductive health care for service members.  Among other things, the policies will now allow service members to receive travel and transportation allowances if abortion or assisted reproduction services are not available in the local area. The health care services however are at the service member's own expense. Different policies apply to covered abortions, those where the life of the mother would be endangered if the fetus were carried to term or the pregnancy was the result of rape or incest.

Kentucky Supreme Court Finds Procedural Problems with Abortion Providers' Attempt to Enjoin Abortion Bans

In Cameron v. EMW Women's Surgical Center, P.S.C., (KY Sup. Ct., Feb. 16, 2023), the Kentucky Supreme Court considered challenges by abortion providers to two Kentucky statutes banning abortions. The "trigger ban" prohibits all abortions, except when necessary to preserve the life of the mother or prevent permanent impairment of a life-sustaining organ. The "heartbeat ban" bars abortions after there is a detectable human heartbeat, with a similar exception for preserving the life of the mother or preventing irreversible impairment of a major bodily function. The trial court issued a preliminary injunction preventing enforcement of both laws. The state Court of Appeals granted emergency relief and dissolved the injunction, and then transferred the case to the state Supreme Court. In this opinion, the state Supreme Court affirmed the Court of Appeals dissolution of the injunction, holding that abortion providers lack third-party standing to challenge the laws on behalf of their patients. However, they held that abortion providers do have standing to challenge the "trigger ban" on their own behalf, and remanded the case to the trial court on that issue. Justice Lambert, joined by Justice Conley, said in part:

[T]he abortion providers’ arguments that the trigger ban improperly delegates legislative authority and that becomes effective on the authority of an entity other than the General Assembly remain live issues. If the abortion providers were to receive a favorable ruling on those issues, the statute would be invalidated if the offending enactment provision could not be severed. This in turn would provide the abortion providers with the relief they seek, satisfying the redressability prong of constitutional standing. 

However, although the abortion providers have constitutional standing to challenge the trigger ban on the foregoing two grounds, they made no arguments concerning their own rights in relation to the heartbeat ban. Their only assertion against the heartbeat ban was that it violated their patients’ constitutional rights to privacy and self-determination....

[T]he personal harm asserted by the abortion providers, the harm to their business, is not considered an irreparable injury for the purposes issuing a temporary injunction.

The circuit court also erred when balancing the equities involved....

To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion, as no appropriate party to raise that issue is before us. Nothing in this opinion shall be construed to prevent an appropriate party from filing suit at a later date....

This matter is accordingly remanded to the circuit court for the determination of the first-party constitutional claims of the abortion providers as to the trigger ban. Specifically, whether the trigger ban was an unlawful delegation of legislative authority in violation of Sections 27, 28, and 29 of the Kentucky Constitution and if the trigger ban became effective upon the authority of an entity other than the General Assembly in violation of Section 60 of the Kentucky Constitution.

Chief Justice VanMeter concurred only in the result.

Four other Justices each filed separate opinions, concurring in part and dissenting in part.

Justice Bisig, joined by Justice Keller, said in part:

Thus, while I concur with the majority’s conclusion that Plaintiffs have first-party standing to challenge the Trigger Ban and with their recognition of third-party standing for purposes of Kentucky law, I respectfully dissent from the remainder of their Opinion. I would reverse the Court of Appeals, affirm the trial court, and direct reinstatement of the temporary injunction....

Because the statutes infringe upon a pregnant patient’s fundamental rights to pursue safety and to self-determination and are likely not sufficiently narrowly tailored to a compelling government interest, I would hold that EMG presented a substantial question on the merits of the case below.

Justice Keller, joined by Justics Bisig, concurred in part, saying in part:

I concur with the Majority’s holding that the physicians have first-party standing to assert their claims in the case at bar. However, I dissent from the remainder of the Majority’s Opinion. Further, I join Justice Bisig’s separate opinion, as I also believe that the physicians have third-party standing to assert the claims of their patients and that the trial court did not abuse its discretion in granting the temporary injunction.

Nickell, J. concurred in part and dissented in part, saying in part:

I concur with the view that the trial court abused its discretion by enjoining the enforcement of the abortion bans. However, I respectfully dissent from any conclusion that Appellees have first-party standing or third-party standing to assert this pre-enforcement constitutional challenge. There should not be one set of procedural rules for abortion providers and another for everyone else.

Thompson, J. concurred in part, saying in part:

I concur in the majority opinion that first party standing was established for the abortion providers and dissent from its conclusion that they lacked third party standing. I believe we should err on the side of finding standing when at all possible, so that parties can gain needed review. 

Accordingly, I urge the trial court to fully exercise its authority on remand by freely allowing intervention by all interested parties so that first party standing may be established for all issues....

Liberty Counsel issued a press release announcing the decision. CNN reports on the decision.

Bankruptcy Reorganization Plan for Harrisburg Diocese Approved By Court

On Feb. 15, the U.S. Bankruptcy Court for the Middle District of Pennsylvania gave final approval to the Plan of Reorganization for the Catholic Diocese of Harrisburg. (Full text of Reorganization Plan.) (Announcement by Diocese.) A Questions and Answers document explaining the Plan says in part:

The Plan outlines how the RCDH and related entities will (a) establish a Survivor Compensation Trust, (b) provide funding to the Trust in an amount equal to $7,500,000 to provide financial restitution for survivors of clergy sexual abuse, and (c) adopt enhanced child protection protocols. In addition to the financial restitution from the RCDH and related entities, current and historical insurance providers will also contribute $10,750,000 to the Trust....

Prior to filing for reorganization, the RCDH authorized an independent Survivor Compensation Program be established, in order to provide financial restitution to abuse survivors. Through this program, $12,784,450 was provided to assist 111 survivors.... 

More than 60 proofs of claim were submitted during the reorganization process and may be eligible for financial distributions from the Survivor Compensation Trust....

The majority of the claims involve accusations against Diocesan priests. As part of the confirmation process, the Diocese issued a list of persons involved in the claims. That list is available www.hbgdiocese.org/reorganization-information. All claims of abuse received during the bankruptcy process were reported to law enforcement.

Links to all the major legal documents filed in the reorganization are available on the Diocese's website. WHP CBS21 reports on the Plan's approval. The Survivor's Network SNAP issued a press release reacting to the Plan approval.

Consent Decree on Preliminary Injunction Signed in Pro-Lifers Suit Against National Archives [CORRECTED]

As previously reported, a suit was filed in D.C. federal district court last week against the National Archives after its security officers required three anti-abortion proponents who were visiting the museum to cover their pro-life t-shirts and remove pro-life buttons and hats.   In a press release yesterday, the American Center for Law and Justice announced that the court has signed a consent decree (full text) in the case.  The decree preliminarily enjoins the National Archives from prohibiting visitors from wearing t-shirts, hats, buttons or other attire that displays religious or political speech. In addition, National Archives will provide personal tours and personal apologies to two of the plaintiffs in the case. The National Archives has already issued a press release apologizing for the incident. The case has been referred to the D.C. Circuit's Mediation Program for 90 days to explore a final settlement. Politico reports on the parties' agreement. [Note: An earlier version of this post incorrectly stated that the case had been finally settled.]

Suit Says Sheriff's Office Pressures Employees to Join Favored Church

Suit was filed this week in a Washington federal district court by an ex-deputy sheriff who alleges that Chelan County (WA) Sheriff's Office employees pressured him to join the "'alt-right' militant" Grace City Church and to attend its 12-week marriage counseling program. The complaint (full text) in Shepard v. Chelan County, (ED WA, filed 2/14/2023), alleges in part:

Defendant Chelan County Sheriff's Department targeted law enforcement officers who are not Grace City Church members by disciplining, terminating, and denying advancement to them for alleged internal Chelan County Sheriff's Office policy violations by arbitrarily enforcing certain policies against those employees and officers for the same conduct they allow, promote, or engage in themselves.

The suit alleges violation of Title VII, the Washington Law Against Discrimination and the Establishment Clause. NCWLIFE reports on the lawsuit.

DOJ Enters Consent Decree with Lansing, MI In Suit Over Firing of 7th Day Adventist Employee

The U.S. Department of Justice announced yesterday that it has entered into a consent decree with the city of Lansing, Michigan to settle a Title VII religious accommodation and retaliation lawsuit that alleged the city fired a Seventh Day Adventist police officer rather than accommodating her Sabbath observance. Under the terms of the consent decree, which must still be approved by the court, Lansing will develop religious accommodation and retaliation policies, and trainings on them. It will also pay the former employee $50,000 in back pay and compensatory damages. UPI reports on the settlement.

Church Can Move Ahead Against County in Suit on Covid Restrictions

 In Abiding Place Ministries v. Newsom, (SD CA, Feb. 14, 2023), a California federal district court allowed a church to move ahead with certain of its claims against San Diego County for enforcing Covid restrictions against public gatherings. The court held that the county's public health officer had qualified immunity against the damage claims because "there was no clear precedent in March or April 2020 that would have put every reasonable official on notice that promulgating orders restricting in person religious gatherings to slow the spread of the COVID-19 virus was clearly and definitively unconstitutional."

The court however allowed plaintiff to move ahead with Free Exercise, Freedom of Assembly, Establishment Clause, Free Speech and Equal Protection claims against the County. The court said in part:

The County threatened enforcement, penalties, and fines if Plaintiff did not comply with the County Order.... Plaintiff alleges this action by the County “forced the Church’s members to remain away from church against their will, under threat of punishment,,,,”  [T]he allegations of the FAC regarding the County’s alleged unconstitutional policy is sufficient overcome the County Defendants’ argument that it cannot be liable under Monell. Accordingly, the County Defendants’ motion to dismiss is DENIED on this ground.....

[The FAC] alleges the County’s Orders and Defendants’ enforcement “had the primary effect of inhibiting religious activity” and caused “excessive government entanglement with religion.” ... Plaintiff contends its religious services exempted from gatherings were treated differently than other public gatherings.... At this stage of the pleadings, the County Defendants’ motion to dismiss the second cause of action is DENIED....

Whatever level of scrutiny is applied, Plaintiff has alleged they were prohibited from engaging in protected speech and assembling in person for the purpose of worship while other gatherings promoting non-religious speech were permissible.... Taking those allegations as true, Plaintiff has plausibly alleged claims for violations of the First Amendment’s freedom of speech and freedom of assembly clauses....

Plaintiff contends Defendants “intentionally and arbitrarily categorized individuals and conduct as either ‘essential’ or ‘non-essential.’”... At the pleading stage, Plaintiff has alleged sufficient facts to state a claim for violation of the Equal Protection clause....

Ministerial Exception Bars Disability Discrimination Suit Against Zen Center

In Behrend v. San Francisco Zen Center, Inc., (ND CA, Feb. 14, 2023), a California federal district court dismissed on ministerial exception grounds a disability discrimination suit brought against a Zen Center by plaintiff who was participating in the Center's Zen Buddhism practice program. The program included both a "formal practice" (meditations, services, educational programs) and a "work practice" (cooking, dishwashing, bathroom and guest room cleaning, ringing bells) component. Finding that the ministerial exception applied, the court said in part:

[B]oth the formal practice and the work practice, “lie[s] at the very core of the mission of” SF Zen Center. Guadalupe, 140 S. Ct. at 2064. And so, drawing all reasonable inferences in Mr. Behrend’s favor, every reasonable trier of fact would be compelled to find his position implicates the fundamental purpose of the ministerial exception. The Work Practice Apprentice position was undisputedly a residential religious training program, and work practice was undisputedly a part of that religious training. Work as part of learning to practice the faith and work as part of training to lead the faith implicate the same fundamental purpose of the exception.

New York's Hateful Conduct Law Violates 1st Amendment

 In Volokh v. James, (SD NY, Feb. 14, 2023), a New York federal district court issued a preliminary injunction barring enforcement of New York's Hateful Conduct Law against social media platforms that are plaintiffs in the case. The court found that plaintiffs were likely to succeed in both their facial and their "as applied" free speech challenges. The law defines hateful conduct as:

the use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.

It goes on to provide:

 A social media network that conducts business in the state, shall provide and maintain a clear and easily accessible mechanism for individual users to report incidents of hateful conduct. Such mechanism shall be clearly accessible to users of such network and easily accessed from both a social media networks' application and website, and shall allow the social media network to provide a direct response to any individual reporting hateful conduct informing them of how the matter is being handled.

Each social media network shall have a clear and concise policy readily available and accessible on their website and application which includes how such social media network will respond and address the reports of incidents of hateful conduct on their platform.

The court concluded in part:

The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal....

[T]he law requires that social media networks devise and implement a written policy—i.e., speech....

Similarly, the Hateful Conduct Law requires a social media network to endorse the state’s message about “hateful conduct”.... To be in compliance ..., a social media network must make a “concise policy readily available and accessible on their website and application” detailing how the network will “respond and address the reports of incidents of hateful conduct on their platform.”... Implicit in this language is that each social media network’s definition of “hateful conduct” must be at least as inclusive as the definition set forth in the law itself....

[Thanks to Volokh Conspiracy for the lead.]

Canadian Church Not in Contempt for Violating Covid Restrictions

In New Brunswick v. His Tabernacle Family Church Inc., (KB NB, Feb. 3, 2023), a trial court in the Canadian province of New Brunswick refused to hold a church in contempt for a violation of Covid restrictions because it was not unequivocally clear that the church knew it was in violation of a previous consent decree.  The church, after signing a consent decree, moved its services to a commercial tent in order to avoid restrictions on gatherings in "public indoor spaces." Initially the sides of the tent were raised, but as weather became colder, the church lowered the sides.  The Province contended that once the sidewalls of the tent were down, the tent became an enclosed space. The court said in part:

The Applicant was aware that initially the Respondents were using the commercial tent with the side walls up. My understanding of the Applicant's position is that such activity would not be in violation of the Mandatory Order as it relates to "public indoor spaces." However, once all four side walls of the tent were down, the Applicant was of the view that the Mandatory Order had been breached. At a minimum, it was incumbent on the Applicant to advise the Respondents at what point they would be in breach of the Mandatory Order.... [T]here is a point at which the use of the commercial tent becomes an "enclosed space". However, as I write this decision, it is unclear to me when that occurs and counsel for the Applicant were unable to provide a clear answer to the question.... [T]he court struggles to understand how the Respondents were to know....

Fox News reports on the decision.

Denial of NYPD Officer's Religious Objection to Vaccination Was Arbitrary and Capricious

 In Grullon v. City of New York, (NY County Sup. Ct., Feb. 3, 2023), a New York state trial court held that the New York Police Department's denial in internal appeals of a police officer's religious objections to the Department's Covid vaccine mandate was arbitrary and capricious. The court said in part:

[D]espite Petitioner's detailed submission, the Appeals Panel failed to even mention any of Petitioner's arguments, let alone refute them as being non-religious in nature or not sincerely held beliefs. The decision also failed to mention NYPD's underlying decision denying Petitioner's application or the basis of the decision including the reasons listed on the checked boxes. The decision also failed to mention that it was affirming NYPD's denial and that it agreed with any of the reasons for which the underlying denial was based. Simply, the denial of the appeal is devoid of any explanation, reasoning, or support for its determination that Petitioner's request for a reasonable accommodation did not meet criteria. The Appeals Panel failed to state what the criteria was for obtaining a reasonable accommodation, it failed to include which criteria Petitioner's request failed to satisfy, or any details or support for its determination. Without any explanation or details, the purported reason provided that it did not meet criteria is tantamount to no reason at all.

The court concluded that the officer is entitled to employment with a reasonable accommodation of weekly Covid testing.

Recent Articles of Interest

From SSRN:

• Ellen P. Aprill & Lloyd Hitoshi Mayer, 21st Century Churches and Federal Tax Law, (Loyola Law School, Los Angeles Legal Studies Research Paper No. 2023-01).
• Steven J. Heyman, Natural Rights, Natural Religion, and the Free Exercise Clause: An Essay for Michael Kent Curtis, (Wake Forest Law Review, Vol. 57, No. 4, pp. 865-95, 2022).
• Paul A. Gowder, Why Majority Religions Should Not Be Accommodated, (Forthcoming, Iowa Law Review, 2023).
• Yolanda van der Vyver, The Roles of Law, Religion and the Covid-19 Pandemic in South African Church Architecture, (M.Christian Green, Faith Kabata and Fortune Sibanda, eds. 2022. Law, Religion, Health and Healing in Africa, African Consortium for Law and Religion Studies (ACLARS).
• Christopher C. Lund, Discrimination, Trump v. Hawaii, and Masterpiece Cakeshop, (Georgia Law Review, Vol. 56, p. 1551 (2022) (symposium)).
• Brian Soucek & Ryan Chen, Misunderstanding Meriwether, (UC Davis Legal Studies Research Paper Forthcoming).
• Deborah L. Brake, Title IX's Trans Panic, (William & Mary Journal of Race, Gender, and Social Justice, Vol. 29, p. 41 (forthcoming 2023)).
• Lloyd Hitoshi Mayer, Allocating State Authority Over Charitable Nonprofit Organizations. (UCLA Law Review Discourse, Forthcoming).

From SSRN (Islamic Law):

• Sayed Qudrat Hashimy, Tracing the History of the Legal System in Afghanistan, (February 9, 2023).
• Mohammad Rasikh Wasiq, Cryptocurrencies: A Critical Analysis from the Perspective of Islamic Law, (September 4, 2022).
• Joseph Kaminski, Irredeemable Failure: The Modern Nation-State as a Nullifier of Ummatic Unity (Ummatics 2022).

From SmartCILP:

• Alexander Tsesis, Government Speech and the Establishment Clause, 2022 Univeristy of Illinois Law Review 1761-1808 (2022).

South Dakota Passes Law Banning All Gender-Affirming Treatments For Minors

The South Dakota legislature last week gave final passage to House Bill 1080 (full text) which prohibits healthcare professionals from providing either drug, hormonal or surgical treatments to minors for the purpose of altering the appearance of the minor's sex or validating a minor's perception of their sex that is inconsistent with the biological indication of their gender. The bill specifically includes a ban on administering drugs that delay puberty for minors. Minors currently receiving drug or hormonal treatments for gender dysphoria must be weaned off their medication by Dec. 31, 2023.  According to CNN, Gov. Noem will sign the bill into law.

National Archives Sued for Requiring Visitors to Remove Pro-Life Apparel

Suit was filed this week in the D.C. federal district court by three anti-abortion proponents who visited the National Archives on the day of the March for Life in Washington. The complaint (full text) in Tamara R. v. National Archives and Records Administration, (D DC, filed 2/8/2023) alleges in part:

5. While in the National Archives, Plaintiffs were subject to a pattern of ongoing misconduct by federal government officials, specifically National Archives security officers, Defendants John Does and Jane Doe, who targeted Plaintiffs and intentionally chilled their religious speech and expression by requiring Plaintiffs to remove or cover their attire because of their pro-life messages.

6. This case seeks to protect and vindicate Plaintiffs’ fundamental and statutory rights under federal law, the First and Fifth Amendments to the United States Constitution, and the Religious Freedom Restoration Act (“RFRA”).

American Center for Law and Justice issued a press release announcing the filing of the lawsuit. A similar suit was filed against the National Air & Space Museum earlier this week. (See prior posting.)

Federal Circuit Hears Arguments By Organization Seeking "Church", But Not Non-Profit, Tax Status

The Court of Appeals for the Federal Circuit heard oral arguments on Wednesday in an unusual appeal, Alearis, Inc. v. United States. (Audio of full oral arguments.) In the case, the U.S. Court of Federal Claims dismissed a challenge by Alearis to the refusal by the Internal Revenue Service to pass on its application to classify it as a "church". (Alearis, Inc. v. United States, (Ct. Fed. Cl., Jan. 11, 2022)). "Church" status would exempt the organization from various restrictions otherwise imposed on "private foundations." IRS forms require organizations seeking classification as a church to first apply on Form 1023 for an exemption as a non-profit organization under Section 501(c)(3).  Alearis says it does not seek non-profit status, only "church" status. It contends that completing Form 1023 would violate its religious tenets, presumably because it would require disclosure of elements of the religion that its doctrines require to be kept secret. The Court of Federal Claims opinion described Alearis as follows:

Plaintiff, Alearis, Inc., is an organization incorporated in the state of Delaware. Its sole member, “the Church,” was “founded at time immemorial when the Old Ones placed the Game into ecclesiastical trust for such purpose.” Plaintiff is “organized exclusively for religious purposes to perform or carry out the functions of the Church.”

Student Loses Free Exercise Challenge To University's COVID Vaccine Mandate

In Collins v. City University of New York, (SD NY, Feb. 8, 2023), a New York federal district court rejected a student's claims that his free exercise, equal protection and procedural due process rights were violated when he was denied a religious exemption from City University's COVID vaccine mandate.  In rejecting the student's free exercise claim, the court said in part:

As established by recent Second Circuit case law, the Vaccination Policy is neutral, generally applicable, and easily passes rational basis review.

Bishop Must Testify in Divorce Case with Millions of Dollars at Stake

L.M. v. M.A., (NY County Sup. Ct., Feb. 6, 2023), is a decision by a New York state trial court refusing to quash a subpoena that orders a Coptic Orthodox Church Bishop to testify in a divorce action.  At issue is whether the parties to the divorce action were ever married. If they were, the wife may share in millions of dollars of assets in her claims for equitable distribution of marital property and spousal support. The court explains:

The parties here disagree about whether they were married in 2017, with plaintiff stating that they were married, and defendant stating that the Bishop "blessed" their relationship, but did not marry them. The parties agree that their infant son was baptized, as planned.... The parties also agree that Plaintiff mother L.M., who had previously been baptized by another church ... was then baptized in front of many witnesses in the church in an unplanned ceremony immediately following the child's baptism. What occurred next is the crux of the parties' dispute. Defendant father M.A. asserts that the Bishop, the subject of the instant subpoena, who had conducted the two baptisms, then proceeded to perform a family blessing. Plaintiff mother, on the other hand, claims that the Bishop offered to marry the parties ... and that he then performed the parties' previously unplanned wedding ceremony....  The Bishop performed the ceremonies in a combination of the English, Arabic and Coptic languages and most of the guests, all of whom had only been invited to the child's baptism, were not sure whether or not the final ceremony was a marriage ceremony....

As the Bishop has refused to testify as to which ceremony he performed, allegedly because his religious conviction prevents him from testifying in a civil action involving church members, and the parties and their witnesses have testified to diametrically conflicting views as to which ceremony took place, the Court and the parties have all asked the Bishop to testify. Defendant served a valid subpoena upon the Bishop and the Bishop ... has moved to quash the subpoena, stating through counsel and an affidavit from a Coptic theologian, that it is contrary to the tenets of the religion for the Bishop to testify in civilian court "brother against brother."

The court however refused to quash the subpoena, saying in part:

[T]he Court does not have a sufficient factual basis to find that either (i) Bishop A.B. personally has a religious belief that he cannot come into a civilian court to testify "brother against brother," or that (ii) even if he had such a belief, that it is applicable here, where he is not being asked to testify against a co-religionist but instead to describe a public factual event, and both parties (the only people who could plausibly be considered to be a person "against" whom he is testifying) are instead asking him to testify about those facts.....

In a lengthy discussion, the court went on to say that even if this did pose a 1st Amendment issue, there was no violation here.

2nd Circuit Hears Arguments on Religious Objections to NYC Employee Vaccine Mandate

The U.S. 2nd Circuit Court of Appeals heard oral arguments yesterday in New Yorkers For Religious Liberty, Inc. v. The City of New York. (Mp3 audio of full oral arguments.) At issue are 1st and 14th Amendment challenges to New York City's public employee COVID vaccine mandate by employees with religious objections to the vaccines. (See prior posting). ADF has links to some of the pleadings filed in the case.

2nd Circuit Denies En Banc Review in Church Autonomy Case

In Belya v. Kapral, (2d Cir., Feb. 8, 2023), the U.S. 2nd Circuit Court of Appeals denied en banc review of a 3-judge panel decision which held that the collateral order doctrine does not allow appeal of an interlocutory order rejecting a church autonomy defense. The defense was raised in an action in which plaintiff contended that he was defamed when defendants publicly accused him of forging a series of letters regarding his appointment as Bishop of Miami in the Russian Orthodox Church Outside Russia. Judge Lohier, joined by Judges Lee, Robinson, Nathan and Merriam, filed an opinion concurring in the denial of review, saying in part:

[T]he panel’s decision regarding appellate jurisdiction at this stage in the case poses no threat to the church autonomy doctrine, which has thrived without help from the expansion of the collateral order doctrine that the dissent proposes.

Senior Judge Chin filed a statement in support of denying review, saying in part:

While the church autonomy doctrine provides religious associations with "independence in matters of faith and doctrine and in closely linked matters of internal government," ... it does not provide them with "a general immunity from secular laws"...

Judge Cabranes dissented, citing the exceptional importance of the issues involved.

Judge Park, joined by Chief Judge Livingston and Judges Sullivan, Nardini and Menashi, filed a dissenting opinion, saying in part:

This case arises from a minister’s suspension by his church. The church autonomy doctrine, which is rooted in the Religion Clauses of the First Amendment, generally requires courts to stay out of such matters. But the panel decision leaves the church defendants subject to litigation, including discovery and possibly trial, on matters relating to church governance. This imperils the First Amendment rights of religious institutions. Denials of church autonomy defenses should be included in the narrow class of collateral orders that are immediately appealable.

Reuters reports on the decision.

Ministerial Exception Doctrine Requires Dismissal of Jewish Teacher's Defamation Suit

In Hyman v. Rosenbaum Yeshiva of North Jersey, (NJ Super., Feb. 8, 2023), a New Jersey state appellate court held that the ministerial exception doctrine required dismissal of a defamation suit brought by a rabbi who was an elementary school Judaic studies teacher at an Orthodox Jewish school. An investigation by an outside law firm employed by the school concluded that the rabbi had inappropriately touched 5th and 6th grade female students in his classes. The school terminated the rabbi's employment and, after consulting halachic authorities, e-mailed a letter to school parents informing them that the rabbi was terminated because his conduct violated the Orthodox Jewish standards of conduct set out in the school's Staff Handbook. According to the court:

The letter was spread throughout the entire school community and similar Jewish communities. Additionally, plaintiff's picture appeared on Jewish websites such as "Frums Follies" and "Lost Messiah," and the allegations were disseminated by bloggers. As a result, plaintiff was allegedly branded as a pedophile among the Jewish community, which affected any possibility of him obtaining future employment in education.

In affirming the dismissal of the rabbi's defamation suit, the court concluded that the ministerial exception doctrine applies to more than just employment discrimination lawsuits.  It said in part:

We ... conclude that the ministerial exception applies to bar tort claims, provided (1) the injured party is a minister formerly employed by a religious institution and (2) the claims are related to the religious institution's employment decision.

In Israel, Jerusalem Municipality Places Tax Lien on Vatican-Owned Guest House

Times of Israel reports that the Jerusalem Municipality has placed a lien on the bank accounts of the Vatican-owned Notre Dame of Jerusalem Center.  The Center contains a guest house with rooms and suites for travelers, a chapel, restaurants and other facilities.  Municipal authorities say that the Center owes $5 million in back taxes, contending that it operates as a regular hotel. The Vatican says it is a non-profit organization serving Christian pilgrims. The paper explains in part:

Religious institutions in Israel, including churches and monasteries, are exempt from paying property tax. However, in recent years, Israel has sought to come to an agreement with the Vatican that would place Church-owned commercial enterprises — like hotels and coffee shops — under taxation.....

The Church’s position is that since the sides have not come to a final agreement, the existing arrangement in which no properties are taxed should remain in force.

The state has not fought this claim, but in 2018, the Jerusalem municipality decided — citing the legal opinion of Gabriel Hallevy, whom it described as an international law expert — that the exemption for churches applies only to properties used “for prayer, for the teaching of religion, or for needs arising from that.”

The church argues that the guest house functions as a religious institution, and should be exempt from the taxes....

Court Tells City to Negotiate Damages After Its Wrongful Arrest of "Psalm Sing" Protesters Against Covid Restrictions

In Rench v. City of Moscow, (D ID, Feb. 1, 2023), an Idaho federal district court refused to dismiss a suit by three plaintiffs who were arrested for violating a COVID Public Health Emergency Order requiring masking or social distancing in public settings.  The Order was issued pursuant to an Ordinance that excluded expressive and associative activity protected by the 1st Amendment if the activity was not specifically prohibited in the Public Health Order. Plaintiffs participated in a local church's "psalm sing" to protest the Order.  In making the arrests, authorities overlooked the exclusion for 1st Amendment activity. Eventually the city moved to dismiss the case, but not before plaintiffs incurred significant legal expenses, The court said in part:

The City’s Code could not be more clear: Under a plain reading of the Order in conjunction with the Ordinance, all expressive activity was excluded from the mask or distance mandate because such conduct was not explicitly addressed in the Order itself. In other words, during the relevant time period, those participating in expressive or associative conduct were not required to mask or distance. Plaintiffs should never have been arrested in the first place, and the constitutionality of what the City thought it’s Code said is irrelevant.....

Given that Plaintiffs were wrongfully arrested, the City indisputably erred in interpreting its own Code, the City consequently misadvised its officers as to the Code’s application, and Plaintiffs are so far reasonable in their damages requests, this case should not need to see the inside of a courtroom. It would behoove everyone involved to take a step back from their respective positions and prepare to negotiate in good faith.

Christian Post reports on the decision.

Supreme Court Review Sought in Ministerial Exception Case

 A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Faith Bible Chapel International v. Tucker, (cert. filed 2/3/2023).  In the case, the U.S. 10th Circuit Court of Appeals by a vote of 6-4, denied en banc review of a panel decision which held that interlocutory appeals from the denial of a ministerial exception defense are not permitted. (See prior posting.) In the case, a former high school teacher and administrator/ chaplain contends that he was fired for opposing alleged racial discrimination by a Christian school. The petition for review frames the Questions Presented in part as follows:

Whether the First Amendment’s “ministerial exception” should be understood as an immunity from judicial interference in church employment decisions falling within the exception, or instead as a mere defense against liability. 

WORLD reports on the petition.  Becket Law has additional background on the case.

Catholic School Students Sue Air & Space Museum for Barring Pro-Life Apparel

Suit was filed this week in the D.C. federal district court by or on behalf of eleven South Carolina Catholic high school students against the National Air and Space Museum and seven members of its staff alleging that the students were required to remove their hats which carried a pro-life message during their visit to the Museum. The students visited the Museum after participating in the D.C. March for Life event. The complaint (full text) in Kristi L. v. National Air and Space Museum, (D DC, filed 2/6/2023), alleging violations of the 1st and 5th Amendments and RFRA, states in part:

Plaintiffs were subjected to a pattern of ongoing misconduct ... which included targeting, harassment, discrimination and, ultimately, eviction from NASM simply because they wore blue hats with the inscription, “Rosary Pro-Life.”...

Defendants’ restriction on Plaintiffs’ speech is content and viewpoint-based and demonstrates a concerted effort to single out, embarrass, intimidate, exclude, and ultimately silence the message expressed by Plaintiffs in wearing their “Rosary Pro-Life” hat....

The disparate treatment of Plaintiffs based on their viewpoints was a result of a discriminatory purpose on the part of Defendants...

Defendants’ restriction on Plaintiffs’ expressive religious activity as set forth in this Complaint imposes a substantial burden on Plaintiffs’ religious exercise in violation of RFRA....

American Center for Law & Justice issued a press release announcing the filing of the lawsuit.

5th Circuit Hears Oral Arguments in Navy SEAL's Suit Seeking COVID Vaccine Exemption

The U.S. 5th Circuit Court of Appeals on Monday heard oral arguments in U.S. Navy SEAL's 1-26 v. Biden, (Docket No. 22-10077, argued 2/6/2022) (audio recording of full oral arguments). In the case, a Texas federal district court issued preliminary injunctions barring the U.S. Navy from imposing its COVID-19 vaccine mandate on Navy service members who sought religious exemptions from the requirement. (See prior postings 1 and 2). Politico reports on the oral arguments.

Judge Asks for Briefing on Whether 13th Amendment Protects Abortion Rights

 In United States v. Handy, (D DC, Feb. 6, 2023), a D.C. federal district court refused to dismiss a criminal case charging ten defendants with conspiracy to block access to a Washington, D.C. abortion clinic. The court said in part:

In part, Defendant moves to dismiss the Superseding Indictment based on the Supreme Court's statement in Dobbs v. Jackson Women's Health Org. ... that “the Constitution does not confer a right to abortion.”... [I]t appears that Defendant’s constitutional argument is predicated on the false legal premise that the predicate statute at issue in the Superseding Indictment only regulates access to abortion. In fact, it regulates a broad category of “reproductive health services,” including, among other things, “counselling or referral services.” See 18 U.S.C. § 248(5). Nevertheless, to the extent that Defendants seek resolution of this matter via a constitutional holding, the Court will require additional briefing....

Here, the “issue” before the Court in Dobbs was not whether any provision of the Constitution provided a right to abortion. Rather, the question before the Court in Dobbs was whether the Fourteenth Amendment to the Constitution provided such a right....  [I]n consideration of the Supreme Court’s longstanding admonition against overapplying its own precedent, it is entirely possible that the Court might have held in Dobbs that some other provision of the Constitution provided a right to access reproductive services had that issue been raised. However, it was not raised. 

Of those provisions that might contain some right to access to such services, the Thirteenth Amendment has received substantial attention among scholars and, briefly, in one federal Court of Appeals decision. E.g., Andrew Koppelman, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 Nw. U. L. Rev. 480 (1990); Jane L. v. Bangerter, 61 F.3d 1505, 1514-15 (10th Cir. 1995). Therefore, and to ensure the correct and just disposition of this criminal action, the parties shall address in their forthcoming briefing: (1) whether the scope of Dobbs is in fact confined to the Fourteenth Amendment and (2) whether, if so, any other provision of the Constitution could confer a right to abortion as an original matter....

Politico reports on the court's Order.

Pope Francis Again Speaks Out Against Criminalization of Homosexuality

Yesterday Pope Francis returned from his visit to South Sudan.  On the flight back, he was joined by the Archbishop of Canterbury and the Moderator of the Church of Scotland for a joint press conference. (Full text). In response to a question from a Radio France reporter, the Pope reiterated his opposition to the criminalization of homosexuality, saying in part:

The criminalization of homosexuality is an issue that must not be allowed to pass by. It is estimated that, more or less, fifty countries, in one way or another, promote this kind of criminalization - they tell me more, but let's say at least fifty - and some of these - I think it's ten, even foresee the death penalty [for homosexual persons]. This is not right, people with homosexual tendencies are children of God, God loves them, God accompanies them. It is true that some are in this state because of various unwanted situations, but to condemn such people is a sin; to criminalize people with homosexual tendencies is an injustice. I am not talking about groups, but about people. Some say: they join in groups that generate noise. I am talking about people; lobbies are something different. I am talking about people. And I believe the Catechism of the Catholic Church says they should not be marginalized. This point, I believe, is clear.

Archbishop Welby indicated agreement with the Pope, saying in part:

[T]he Church of England, the Anglican Communion – has passed resolutions at two Lambeth conferences against criminalization, but it has not really changed many people's mind.

Idaho Legislature Cannot Intervene in Suit by U.S. Challenging Idaho's Abortion Ban In Emergency Situations

In United States v. State of Idaho, (D ID, Feb. 3, 2023), an Idaho federal district court refused to allow the Idaho legislature to intervene as a matter of right in a suit in which the U.S. Department of Justice is suing on a claim that Idaho's total abortion ban is preempted by federal law to the extent that it is contrary to the Emergency Medical Treatment and Labor Act.  The court concluded that the legislature has failed to show that the state's attorney general is inadequately representing the state's identical interest in defending the abortion ban.  The same court has previously issued a preliminary injunction against enforcing the ban against any medical provider or hospital that performs an abortion that is required as emergency treatment guaranteed by federal law. (See prior posting.) In that suit, the court permitted the legislature to permissively intervene on a limited basis.

Recent Articles of Interest

 From SSRN:

• Hans Morten Haugen, A Decade of Revitalizing UN Work for Freedom Concerning Religion or Belief 2010-2020, (Journal of Human Rights, January 2023).
• Ira C. Lupu & Robert W. Tuttle, The Remains of the Establishment Clause, (74 Hastings L.J. (forthcoming)).
• Arvind P. Bhanu, Paul T. Babie & Gian-Luca Stirling, Protecting Religious Speech as Expressive Conduct in the Constitutions of Australia, United States, and India, (University of Detroit Mercy Law Review, Vol. 100, No. 1, 2022).
• Shamshad Pasarlay, The Taliban and Islamic Constitutionalism in Afghanistan, (ICONnect: Blog of the International Journal of Constitutional Law (23 December 2022)).
• L. Joe Dunman, Brief for Amicus Curiae The Kentucky Commission on Human Rights, Nelson v. Louisville Metro, (Sixth Circuit Court of Appeals, Nos 22-5884/22-5912) (January 30, 2023).
• Ellen P. Aprill & Lloyd Hitoshi Mayer, 21st Century Churches and Federal Tax Law, (Loyola Law School, Los Angeles Legal Studies Research Paper No. 2023-01 (2023)).
• Lee J. Strang, Originalism's Promise: An Intentionally Thin, Natural Law Account of Our Fundamentally Just, Complex, Constitutional System, (11 Faulkner L. Rev. ___ (2023)).
• Miles Gray, Viewpoint, Not Content: Strengthening First Amendment Protection for Nonconforming Gender Expression, (February 1, 2023).

From SSRN (Abortion Rights):

• Evan D. Bernick & Jull Wieber Lens, Abortion, Original Public Meaning, and the Ambiguities of Pregnancy (January 30, 2023).
• Jensen Lillquist, Comity & Federalism in Extraterritorial Abortion Regulation, (Utah Law Review, Forthcoming).
• Martha Minow, The Unraveling: What Dobbs May Mean for Contraception, Liberty, and Constitutionalism, (Lee Bollinger and Geoffrey R. Stone, eds., Roe v. Dobbs: The Past, Present and Future of a Constitutional Right to Abortion, Forthcoming).

From SSRN (Legal History):

• Simon Stern, Defining Obscenity before Hicklin: Corrupting Texts in the Seventeenth and Eighteenth Centuries, (Forthcoming in in Sylvia Sasse and Matthias Meindl, eds., Literature on Trial).
• Matthew Cavedon, Early Stirrings of Modern Liberty in the Thought of St. Thomas Aquinas, (January 28, 2023).
• Robert J. Miller & Harry Hobbs, Unraveling the International Law of Colonialism: Lessons from Australia and the United States, (February 3, 2023).

20 State AG's Warn Pharmacies Against Mailing Abortion Pills

Missouri Attorney General Andrew Bailey announced on Tuesday that 20 state attorneys general have sent letters to Walgreen's and CVS pharmacies warning that their plan to distribute the abortion pills mifepristone and misoprostol using the mails violates both state and federal law. (Full text of letters to Walgreen's and CVS). The letters contend that distribution of the pills by mail violates 18 USC §1461 and reject an Opinion of the Justice Department's Office of Legal Counsel (full text) to the contrary.

Satanic Temple Opens Reproductive Health Clinic Offering Its Abortion Ritual

In a press release issued this week, The Satanic Temple ("TST") announced that it has set up its first Reproductive Health Clinic in New Mexico. TST has developed an abortion ritual that it claims is protected by the First Amendment. According to the press release:

[A]nyone in New Mexico seeking to perform The Satanic Temple’s abortion ritual will be able to receive free online medical services. Patients undergo a confidential screening and virtual appointment before having their prescriptions sent to the clinic’s pharmacy partner, who will mail the medications in a discreet package. The pharmacy’s fees will fall around $90 USD in order to keep prices at a minimum. TST Health’s licensed medical staff will be available for patient questions and concerns and will initiate follow-up communications with patients. In addition, the clinic has a dedicated patient hotline that is on call 24/7. 

The Satanic Temple hopes to expand operations into other states, including those that do not allow clinicians to perform abortions.

TST's press release added that it has named the facility "The Samuel Alito’s Mom's Satanic Abortion Clinic," and went on to elaborate on that choice. Christian Post reports on TST's actions.

Faith-Based Resource Center for Homeless Sues Over Right to Serve Snacks to Its Clients

Suit was filed this week in a California federal district court by a Resource Cener for impoverished and disabled individuals alleging that the city of Santa Ana has violated its rights under RLUIPA and the First Amendment by insisting that it stop serving snacks to its clients in order to receive a Certificate of Occupancy, even though it had been operating without one for 15 years.  The complaint (full text) in Micha's Way v. City of Santa Ana, (CD CA, filed 1/30/2023), asks for an injunction and declaratory relief.  Voice of OC, reporting on the lawsuit, summarizes the allegations in the 44-page complaint:

For years, homeless people would come by the red roof house on 4th Street in Santa Ana for help with the basics: Personal documents, mail collection, maybe motel vouchers on a good day.

And on their way back out the door, they’d likely take a pastry from the faith-based center called Micah’s Way — a small parting token in the service of Christian ministry, but an unpermitted property use in the eyes of Santa Ana city officials....

On Monday, Micah’s Way attorney Edmond Connor filed a lawsuit against the city, citing federal protections for religious exercises like feeding and sheltering the homeless.

It accuses city officials of scapegoating Micah’s Way for neighborhood impacts from a nearby needle exchange program.

Chabad's Long-Running Suit Over Land Use Dismissed In Part

In Lubavitch of Old Westbury, Inc. v. Incorporated Village of Old Westbury, New York, (ED NY, Jan. 31, 2023), a New York federal magistrate judge recommended that the district court dismiss on various procedural and jurisdictional grounds (including statute of limitations) a number of the claims in a long-running suit by an Orthodox Jewish Chabad organization that has been unable to obtain permission to use some seven acres of property for religious education, worship and related activities. The magistrate judge began his lengthy Report and Recommendation as follows:

Presently before the Court is a motion to partially dismiss this action, which has been pending for more than fourteen years and involves factual allegations going back to 1994. In the years since the initial complaint was filed on December 17, 2008, this case has been assigned (and then reassigned) to four District Judges ... and four Magistrate Judges.... Furthermore, numerous law firms and attorneys have come and gone on behalf of the parties over this lengthy time span. As a reminder to the parties, they have an affirmative obligation under Federal Rule of Civil Procedure ("Rule") 1 "to secure the just, speedy, and inexpensive determination of every action and proceeding."...

A 237-page Second Amended Complaint in the case asserted 17 causes of action under the 1st, 4th, 5th and 14th Amendments, RLUIPA and the state Constitution.

National Prayer Breakfast Held Yesterday

As reported by AP, the National Prayer Breakfast, attended by 450 invitees, was held yesterday in the Capitol's Visitor Center. As reported in an earlier AP article:

The National Prayer Breakfast, one of the most visible and long-standing events that brings religion and politics together in Washington, is splitting from the private religious group that had overseen it for decades, due to concerns the gathering had become too divisive.

The organizer and host for this year’s breakfast ... [was] the National Prayer Breakfast Foundation, headed by former Sen. Mark Pryor, D-Ark.

Sen. Chris Coons, a regular participant and chairman of the Senate ethics committee, said the move was prompted in part by concerns in recent years that members of Congress did not know important details about the larger multiday gathering.

President Biden spoke at this year's Breakfast. (Full text of remarks.) The prior sponsor of Prayer Breakfasts, the International Foundation, held its own gathering at the nearby Washington Hilton hotel at which attendees watched the President's remarks.  Some 1300 people attended that event.