Teachers Get Religious Exemption from School Policy Barring Disclosure to Parents of Gender Identity Changes

In Mirabelli v. Olson, (SD CA, Sept. 14, 2023), a California federal district court granted a preliminary injunction prohibiting the Escondido Union School District from taking any adverse employment action against two teachers who have religious objections to the school district's policy of faculty confidentiality when communicating with parents about a student's change in gender identity. The court said in part:

The result of the new EUSD policy is that a teacher ordinarily may not disclose to a parent the fact that a student identifies as a new gender, or wants to be addressed by a new name or new pronouns during the school day – names, genders, or pronouns that are different from the birth name and birth gender of the student. Under the policy at issue, accurate communication with parents is permitted only if the child first gives its consent to the school....

The plaintiffs in this action are two experienced, well-qualified, teachers. The teachers maintain sincere religious beliefs that communications with a parent about a student should be accurate; communications should not be calculated to deceive or mislead a student’s parent....

... Mirabelli believes that the relationship between parents and children is an inherently sacred and life-long bond, ordained by God, in which the parents have the ultimate right and responsibility to care for and guide their children..... In a similar vein, West believes that the relationship between parents and their child is created by God with the intent that the parents have the ultimate responsibility to raise and guide their child. Both Mirabelli and West believe that God forbids lying and deceit...

EUSD contends that the government purpose of protecting gender diverse students from (an undefined) harm is a compelling governmental interest and the policy of non-disclosure to parents is narrowly tailored.... This argument is unconvincing. First, both the Ninth Circuit and the Supreme Court have found overly broad formulations of compelling government interests unavailing.... Second, keeping parents uninformed and unaware of significant events that beg for medical and psychological experts to evaluate a child, like hiding a gym student’s soccer concussion, is precisely the type of inaction that is likely to cause greater harm and is not narrowly tailored. ....

In the end, Mirabelli and West face an unlawful choice along the lines of: “lose your faith and keep your job, or keep your faith and lose your job.”... The only meaningful justification the District offers for its insistence that the plaintiffs not reveal to parents gender information about their own children rests on a mistaken view that the District bears a duty to place a child’s right to privacy above, and in derogation of, the rights of a child’s parents....

[Thanks to Jeffrey Trissell for the lead.]

Kim Davis Assessed $100K Damages In One Case, $0 in Another

Last year, in a long-running case, a Kentucky federal district court held that Rowan County Clerk Kim Davis violated the constitutional rights of two same-sex couples when she refused, on religious grounds, to issue them marriage licenses. The court said that damages should be assessed by a jury.  (See prior posting.) That case, along with another making similar claims, were recently tired in parallel before two separate juries. In one of the cases-- Yates v. Davis -- the jury yesterday awarded zero damages.  In a second case-- Emold v. Davis-- a different jury awarded $100,000 damages. Liberty Counsel says the decision will be appealed. USA Today reports on the cases.

Suit Challenges Adoption of Ethnic Studies Courses That Contain Anti-Jewish Materials

Suit was filed last week in a California state trial court by several Jewish groups who contend that the ethnic studies curriculum adopted by the Santa Ana Unified School District Board of Education includes antisemitic and anti-Israel content.  The complaint (full text) in Louis D. Brandeis Center for Human Rights Under Law v. Santa Ana Unified School District Board of Education, (CA Super. Ct., filed 9/8/2023), alleges violations of California's open meeting law ("Brown Act") that prevented adequate participation in school board meetings by members of the Jewish community.  The complaint alleges both inadequate notice of meetings and harassment during the meetings.  The complaint alleges in part:

Comments made by members of the public during the May 23, 2023 meeting included classic antisemitic tropes as well as threatening and violent language against Jews and Israelis. Furthermore, audience members hissed as the names of Jewish attendees were called, applause broke out in response to antisemitic slurs, and during a presentation by two Jewish high school students, Board meeting attendees shouted, “you’re racists” and “you’re killers.” A Jewish student reported being followed to her car and harassed by a meeting attendee, and that SAUSD’s security was unable to provide sufficient protection or support.

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

9th Circuit En Banc: California School District Must Recognize Fellowship of Christian Athletes Clubs

In Fellowship of Christian Athletes v. San Jose Unified School District board of Education, (9th Cir., Sept. 13, 2023), the U.S. 9th Circuit Court of Appeals sitting en banc, in a set of opinions spanning 134 pages, held that Fellowship of Christian Athletes (FCA) is entitled to a preliminary injunction requiring the school district to restore recognition to FCA chapters as student clubs. Because FCA requires its officers to affirm a Statement of Faith and abide by a sexual purity policy, i.e. because a homosexual student could not be an officer of FCA, the District had revoked FCA's recognition. The court said in part:

While it cannot be overstated that anti-discrimination policies certainly serve worthy causes—particularly within the context of a school setting where students are often finding themselves—those policies may not themselves be utilized in a manner that transgresses or supersedes the government’s constitutional commitment to be steadfastly neutral to religion. Under the First Amendment’s protection of free exercise of religion and free speech, the government may not “single out” religious groups “for special disfavor” compared to similar secular groups.... 

The District, rather than treating FCA like comparable secular student groups whose membership was limited based on criteria including sex, race, ethnicity, and gender identity, penalized it based on its religious beliefs. Because the Constitution prohibits such a double standard—even in the absence of any motive to do so—we reverse the district court’s denial of FCA’s motion for a preliminary injunction....

Plaintiffs are likely to succeed on their Free Exercise claims because the District’s policies are not neutral and generally applicable and religious animus infects the District’s decision making.

Judge Forrest filed a concurring opinion contending that the case should be seen as a free-speech care more than a religious freedom case.

Judge Smith filed an opinion concurring in part and dissenting in part, with two other judges partially joining his opinion. Judge Sung filed an opinion concurring in part and dissenting in part. Chief Judge Murguia filed a dissenting opinion, joined in part by Judge Sung.

National Review reports on the decision.

Plaintiffs Must Seek Narrower Relief Against Restrictions on LGBTQ Books in Children's Section of Library

In Virden v. Crawford County, Arkansas, (WD AR, Sept. 12, 2023), the court denied plaintiffs' request for a preliminary injunction because the proposed injunction was too broad, but left open the possibility of a narrower injunction later on.  The court described the dispute:

According to Plaintiffs’ amended complaint, in late 2022 or early 2023 the Crawford County Library System implemented a policy under which its library branches must remove from their children’s sections all books containing LGBTQ themes, affix a prominent color label to those books, and place them in a newly-created section called the “social section.” Plaintiffs allege this policy was imposed on the Library System by the Crawford County Quorum Court in response to political pressure from constituents who objected, at least partly on religious grounds, to the presence of these books in the children’s section.

Plaintiffs claimed that this policy violates the Establishment Clause as well as their 1st Amendment free speech right.  The court said in part:

First, with respect to the Establishment Clause claim, it must be noted that—as Defendants acknowledge—there is little useful precedent to guide this Court’s analysis. The United States Supreme Court’s most recent guidance on such claims amounts to little more than the extremely general and abstract direction that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” Kennedy v. Bremerton Sch. Dist..... In the face of this instruction, the County resorts to arguing that book banning and censorship, for reasons both religious and otherwise, have a centuries-long history in America and the broader Western world....

Neither side’s argument regarding the Establishment Clause claim is satisfactory. Plaintiffs’ argument simply sidesteps the “historical practices and understandings” analysis altogether. But the County’s argument, which is essentially that the Establishment Clause does not prohibit state-sponsored religious viewpoint discrimination because state actors have been violating the Free Speech Clause for centuries, seems out of step with the Kennedy Court’s admonition that the First Amendment’s Establishment, Free-Exercise, and Free-Speech Clauses “have complementary purposes, not warring ones where one Clause is always sure to prevail over the others.”.... 

The court found that plaintiffs had alleged sufficient facts to avoid dismissal of their claim that their 1st Amendment right to receive information had been infringed. However, it refused to enter a preliminary injunction requiring the library to return to its prior procedures for classifying and processing books, saying in part:

... Plaintiffs’ proposals would essentially freeze in perpetuity the Library’s method for processing all types of books—not only children’s books relating to LGBTQ topics. The Court does not see any reason, on the record before it, why it should curtail the Library’s discretion in processing books on such disparate topics as caring for houseplants, playing chess, or mystery novels. Furthermore, the requested injunctions are so vague and general that they could potentially prevent the Library from altering these processes even for reasons that could be perfectly benign, prudent, and constitutionally inoffensive. 

6th Circuit Says Zoning Restrictions on Prayer Trail Violate RLUIPA

In Catholic Healthcare International, Inc. v. Genoa Charter Township, (6th Cir., Sept. 11, 2023), the U.S. 6th Circuit Court of Appeals ordered a Michigan federal district court to promptly enter a preliminary injunction that will allow a Catholic healthcare organization to restore a Stations of the Cross prayer trail along with a stone altar and mural. Genoa Township zoning officials had insisted that the Prayer Trail should be treated as a church for zoning purposes. Plaintiffs sued contending that the zoning ordinance as applied to them violates RLUIPA. The court said in part:

The question here is whether the Township’s decision to treat the prayer trail as the equivalent of a church building—thereby requiring plaintiffs to apply for a special land-use permit—imposed a substantial burden on their “religious exercise[.]”...

The only factor that the Township mentions, in arguing that plaintiffs have not borne a substantial burden, is whether “a plaintiff has imposed a burden upon itself[.]” Id. This factor reflects that, when a plaintiff has good reason to know in advance that its proposed usage will be subject to an onerous review process, the burdens of that process are not likely to count as substantial for purposes of 42 U.S.C. § 2000cc(a)(1). But here the Township’s zoning ordinance gave plaintiffs little reason to expect the treatment they have received....

... [P]laintiffs had reason to think that their prayer trail would be treated in the same manner as “[p]rivate non-commercial parks, nature preserves and recreational areas”—none of which require a special land-use permit in the type of zoning district ... in which plaintiffs’ parcel is located....

The court also held that a Township ban on organized gatherings on plaintiffs' property would likely substantially burden their religious exercise.

Judge Clay filed a concurring opinion expanding on the legal standards governing claims under RLUIPA.  CBS News reports on the decision.

Former Israeli Prime Minister Wins Defamation Action

Times of Israel reports that a Tel Aviv Magistrate's Court yesterday ruled in favor of former Israeli Prime Minister Naftali Bennett in his defamation action against Rabbi Yosef Mizrachi.  Mizrachi had falsely claimed that Bennett's mother is not Jewish. The court ordered Mizrachi to pay damages and to post an apology on his YouTube channel. The suit is part of a series of defamation actions that Bennett has filed since he left office seeking to “clean the internet” of "poison and fake news" in Israel.

Bulgaria Violates European Convention by Failing to Recognize Same-Sex Married Couple

In Koilova and Babulkova v. Bulgaria, (ECHR, Sept 5, 2023) (full text of decision in French) (Court's English Summary of decision), the European Court of Human Rights ruled that Bulgaria violated Article 8 of the European Convention on Human Rights (Respect for private and family life) by failing to have a procedure for recognizing or registering a same-sex marriage entered in another country. According to the English language summary of the decision, the Court said in part:

... [I]n the absence of official recognition, same-sex couples were nothing more than de facto unions for the purposes of national law, even where a marriage had been validly contracted abroad. The partners were unable to regulate fundamental aspects of life as a couple such as those concerning property, family matters and inheritance, except as private individuals entering into contracts under the ordinary law, where possible, rather than as an officially recognised couple. They were not able to rely on the existence of their relationship in dealings with the judicial or administrative authorities or with third parties. Even assuming that national law had allowed the applicants to apply to the domestic courts for protection of their basic needs as a couple, the necessity of taking such a step would have constituted in itself a hindrance to respect for their private and family life.

[Thanks to Law & Religion UK for the lead.]

Florida Supreme Court Hears Arguments On 15-Week Abortion Ban

On Friday the Florida Supreme Court heard oral arguments (video of full oral arguments) in Planned Parenthood of Southwest and Central Florida v. State of Florida, (FL Sup. Ct., 9/8/2-23). At issue in the case is a state constitutional challenge to Florida's 15-week abortion ban.  The Florida Supreme Court has links to all the pleadings and briefs in the case.

France's Conseil D'Etat Upholds Ban on Wearing Abayas in Schools

On Thursday, France's Council of State upheld the government's ban Muslim girls wearing the abaya at school.   France 24 explains:

President Emmanuel Macron's government announced last month it was banning the abaya in schools, saying it broke the rules on secularism in education that have already seen Muslim headscarves banned on the grounds that they constitute a display of religious affiliation. 

But an association representing Muslims filed a motion with the State Council, France's highest court for complaints against state authorities, for an injunction against the ban on the abaya and the qamis, its equivalent dress for men.

The association argued the ban was discriminatory and could incite hatred against Muslims, as well as racial profiling.

The court's decision, available in French (Association Action Droits des Musulman, (Conseil D'Etat, Sept. 7, 2023) (full text), is summarized by Daily News:

Wearing the abaya "is part of a logic of religious affirmation", estimated the judge in summary proceedings....

Accordingly, its prohibition "does not constitute a serious and manifestly unlawful interference with the right to respect for private life, freedom of worship, the right to education and respect for the best interests of the child or principle of non-discrimination,” he said.

Recent Articles of Interest

From SSRN:

• Ronald J. Colombo, The Repeal of Religious Accommodations – A Constitutional Analysis, (American University Law Review, Forthcoming 2024 Volume 73, Issue 3).
• Laetitia-Ann Greeff, A Critical Analysis of Parental Corporal Punishment: A Call for Legislative Reform (October 18, 2022).
• Elizabeth Platt, The Abortion Exception: A Response to 'Abortion and Religious Liberty', (124 Colum. L. Rev. Forum (2024 Forthcoming)).
• Siddharth Kamath, Reservation in India With Special Reference to EWS Quota, (March 6, 2023).
• Ronnie R. Gipson Jr, The Interjurisdictional Abortion Wars Have Arrived , (University of North Texas at Dallas Law Review On the Cusp, Forthcoming).
• Sai Jahnavi Thota & Shreya Dubey, Succession Rights of Women in India and Muslim Countries: Comparative Analysis, (May 2, 2023).

From SmartCILP:

• David N. Wecht, William O. Douglas Lecture. Majoritarianism Run Riot: Christian Supremacism and the Religion Clauses, 58 Gonzaga Law. Review 93-108 (2022-2023).
• Adam Mestyan & Rezk Nori, The Probate Regime: Enchanted Bureaucracy, Islamic Law, and the Capital of Orphans in Nineteenth-Century Egypt, 40 Law & History Review 597-624 (2022).
• Thomas C. Berg, Freedom in Serving Others: Arguments and Sources for Religious Institutional Freedom, 19 University of St. Thomas Law Journal 33-62 (2023).

Video Pressing Estranged Husband to Give Wife a Get Is Protected Speech

In S.B.B. v. L.B.B., (NJ App., Sept. 6, 2023), a New Jersey appellate court vacated a Final Restraining Order (FRO) issued by a trial court under the Prevention of Domestic Violence Act. The court said in part:

The FRO was based on the predicate act of harassment. The communication underlying the trial judge's finding of harassment was defendant's creation and dissemination of a video accusing her estranged husband of improperly withholding a get, a Jewish bill of divorce, and asking community members to "press" her husband to deliver the get. Because defendant's communication constituted constitutionally protected free speech, we reverse.

In reaching that conclusion, the appellate court said in part:

[The trial court] judge's finding that the Jewish community was prone to violence against get refusers—and the implicit holding that defendant was aware of and intentionally availed herself of such violent tendencies—is not supported by the record. The video was intended to get a get. The video did not threaten or menace plaintiff, and nothing in the record suggests that plaintiff's safety or security was put at risk by the video.... Without credible evidence that the video incited or produced imminent lawless action or was likely to do so, defendant's speech does not fall within the narrow category of incitement exempted from First Amendment protection.

Volokh Conspiracy has more on the decision.

Consent Decree Affirms Public Accommodation Law Exemption for Catholic Bookstore

 A Florida federal district court entered a Consent Order (full text) yesterday in The Catholic Store, Inc. v. City of Jacksonville, (MD FL, Sept. 7, 2023).  The Order concludes that plaintiff, a privately-owned, for-profit Catholic bookstore qualifies for the religious-organization exemption in Jacksonville, Florida's public accommodation law. This exempts the bookstore from the non-discrimination provisions relating to sexual orientation and gender identity. In its original complaint, the store contended that the public accommodation law would have required that employees address customers using their preferred pronouns and titles, regardless of their biological sex. The store also said it wants to post its Catholic beliefs about sexuality on its website and on social media. (See prior posting.) ADF issued a press release announcing the settlement in the case.

Coach Kennedy Resigns After One Post-Game Prayer

Last year, in a widely publicized Supreme Court decision, Bremerton, Washington high school football coach Joe Kennedy won the right to offer a personal prayer on the 50-yard line immediately after football games. After his Supreme Court win, Kennedy was reinstated as coach.  AP now reports that on Wednesday, after one game back at which he offered a brief post-game prayer, Kennedy resigned his coaching position and returned to Florida where he had been living full time. Kennedy posted a statement on his personal website, saying in part: "I believe I can best continue to advocate for constitutional freedom and religious liberty by working from outside the school system so that is what I will do."

California AG Challenges School District's Policy On Disclosure To Parents of Students' Gender Dysphoria

Suit was filed last week by California's Attorney General against the Chino Valley Unified School District challenging the district's policy that requires school personnel to notify parents whenever a student asks to be identified or treated as a gender other than the biological sex listed on the student's birth certificate.  The complaint (full text) in People ex rel. Bonta v. Chino Valley Unified School District, (CA Super. Ct., filed 8/28/2023), alleges in part:

Policy 5020.1 has placed transgender and gender nonconforming students in danger of imminent, irreparable harm from the consequences of forced disclosures. These students are currently under threat of being outed to their parents or guardians against their express wishes and will. They are in real fear that the District’s policy will force them to make a choice: either “walk back” their constitutionally and statutorily protected rights to gender identity and gender expression, or face the risk of emotional, physical, and psychological harm from non-affirming or unaccepting parents or guardians.

Policy 5020.1 unlawfully discriminates against transgender and gender nonconforming students, subjecting them to disparate treatment, harassment, and abuse, mental, emotional, and physical. This is by design: the Board’s plain motivations in adopting Policy 5020.1 were to create and harbor animosity, discrimination, and prejudice towards these transgender and gender nonconforming students, without any compelling reason to do so.

The Attorney General issued a press release announcing the filing of the lawsuit.

Yesterday, in an oral ruling from the bench, the court issued a temporary restraining order barring the school district from enforcing its disclosure policy. The Attorney General issued a press release announcing the court's ruling and providing links to briefs in the case.

California Legislature Passes Amendment to Outlaw Caste Discrimination

California's Unruh Civil Rights Act already bars discrimination, among other things, on the basis of "ancestry". The California legislature this week gave final passage to an amendment to the Act (full text) that adds a definition of "ancestry", making it clear that it includes discrimination on the basis of caste. The amendment defines "caste" as "a system of social stratification on the basis of inherited status". The bill now goes to Governor Gavin Newsom for his signature. The Independent reports on the passage of the bill and on those who opposed its passage.

Church Member's Defamation Suit Dismissed on Church Autonomy Grounds

In David v. South Congregational Church, (MA Super. Ct., Sept. 1, 2023), a Massachusetts trial court dismissed on church autonomy grounds a defamation suit against a Church, its Pastor and its Moderator brought by a Church member who was removed from the Church's Leadership, Finance and Investment Committees.  Plaintiff, a financial advisor, claims that he was inaccurately charged with unethical conduct in handling the funds of another church member. He seeks damages and other remedial action, including reinstatement on church committees. The court said in part:

... [T]here is no evidence that the defendant Moderator Figueroa's email to six Church leaders advising of the plaintiff's removal from the three Church leadership committees was ever communicated or published by the defendant Church officials beyond those leadership officials.... The sole disciplinary action taken by the church defendants was the plaintiff's removal from Church committees and positions of [Church] leadership.... Plaintiff's claimed defamation damages ... are necessarily limited exclusively to his reputation amongst the internal Church leadership.

But even limiting the scope of plaintiff's tort damage claim will not save his cause of action against the defendant Church, its Pastor and Moderator. A jury ... may not be permitted to second-guess church officials' and require them to pay damages because the jury disagrees with internal church discipline decisions...

The plaintiff is improperly asking this court to interject itself into-- and moreover reverse-- the internal disciplinary action imposed by the Church Pastor and Moderator upon another Chruch member.

[Thanks to John Egan for the lead.]

CT Supreme Court Upholds Refusal to Enforce Ketubah in Divorce Action

In Tilsen v. Benson, (CT Sup. Ct., Sept. 5, 2023), the Connecticut Supreme Court upheld a trial court's refusal to enforce the provisions of the parties' ketubah (Jewish marriage document) in setting alimony in a marital dissolution action. The husband, a rabbi, sought enforcement of the ketubah as a prenuptial agreement.  The ketubah provided that any divorce would be "according to Torah law."  Husband contended that meant a 50/50 division of property and no obligation to pay alimony, but conflicting interpretations of Jewish law were presented to the trial court.  The Supreme Court said in part:

... [W]e conclude that the plaintiff’s desired relief violates the establishment clause under the neutral principles of law doctrine. Most significant, the parties’ ketubah is facially silent as to each spouse’s support obligations in the event of dissolution of the marriage, thus leaving the court to determine those obligations from external sources as to Jewish law, namely, the parties’ expert witnesses, whose proffered opinions differed in this case, instantly alerting the court as to the establishment clause dilemma....

The court also rejected husband's argument that refusal to enforce the ketubah violated his free exercise rights by preventing him from divorcing according to Jewish law and denying him the generally available benefit of enforcing a prenuptial agreement only because of the agreement's religious nature.  The court said in part:

... [E]nforcement of this vaguely worded ketubah in the guise of protecting the plaintiff’s free exercise rights would have put the trial court on the horns of an establishment clause dilemma.

Second, the trial court did not deny the plaintiff access to the court or otherwise exact some kind of penalty in connection with his religious beliefs or practices; its decision simply meant that this dissolution action would be governed by generally applicable principles of Connecticut law as expressed in our alimony and equitable distribution statutes. Parties who desire specific tenets of their religious beliefs to govern the resolution of marital dissolution actions remain free to contract for that relief via a properly executed antenuptial, postnuptial, or separation agreement that is specifically worded to express those beliefs in a way that avoids establishment clause concerns under the neutral principles of law doctrine.

Religious Organization Lacks Standing to Challenge Interpretation of State Anti-Discrimination law

In Union Gospel Mission of Yakima, Wash. v. Ferguson, (ED WA, Sept. 1, 2023), a Washington federal district court dismissed for lack of standing a suit challenging the constitutionality of the Washington Supreme Court's interpretation of the state's anti-discrimination law. The state Supreme Court in a prior case interpreted the statute's exemption for non-profit religious organizations to be limited to situations covered by the ministerial exemption doctrine.  In this case, plaintiff that operates a homeless shelter and thrift store and also provides social services sought a declaration that religious organizations have a constitutional right to hire, even in non-ministerial positions, only those who agree with its religious beliefs and who will comply with its religious tenets and behavior requirements. In dismissing the lawsuit, the court found that there was no credible threat of enforcement against plaintiff, and that this suit was a disguised attempt to appeal a Washington Supreme Court decision in violation of the Rooker-Feldman Doctrine.

Hindu Organization Lacks Standing to Challenge State's Caste Discrimination Charges

In Hindu American Foundation, Inc. v. Kish,(ED CA, Aug. 31, 2023, a California federal district court held that a national education and policy organization that promotes religious freedom for Hindu Americans lacks standing to sue the California Civil Rights Department for asserting in enforcement actions that the caste system and caste discrimination is part of Hindu teachings and practices.

... [P]laintiff’s complaint fails to allege facts that, if proven, would show that plaintiff is “sufficiently identified with and subject to the influence” of the individuals it seeks to represent in this lawsuit.... Indeed, it is unclear even which specific individuals plaintiff seeks to represent in this action because its complaint merely alleges that it seeks to protect the constitutional rights of “all Hindu Americans” and “all Americans of faith.”...

See prior related posting.  Courthouse News Service reports on the decision.

Recent Articles and Books of Interest

From SSRN:

• Shelley Ross Saxer, Owning Church Property, (Florida State University Law Review, Forthcoming).
• Hershey H. Friedman, The Art of Argumentation: A Jewish Approach, (August 15, 2023).
• Elizabeth Sepper, Free Exercise of Abortion, (Brigham Young University Law Review, Vol. 49, 2023).
• Marc Spindelman, Trans Sex Equality Rights After Dobbs, (172 U. Pa. L. Rev. Online 1 (2023)).
• Rona Kaufman Kitchen, Privacy: Pre- and Post-Dobbs, (Duquesne University Law Review, Vol. 61, No. 1, 2023).
• Naomi R. Cahn, Mary E. Ziegler & Maxine Eichner, Erosion by Misdirection: The New Uses and Abuses of Parental Rights, (Virginia Public Law and Legal Theory Research Paper No. 2023-62 (2023)).

From SSRN (Islamic Law):

• Nzube Udechukwu, Critical Analysis of the Punishments of Canning and Amputation Under the Penal Code Act and Other Sharia Criminal Legislation Vis-à-vis the 1999 Constitution of the Federal Republic of Nigeria, as Amended, (August 15, 2023).
• Nasratullah Nasrat, Rohullah Hamidi, Abdul Rahman Mubashir & Shahidullah Safi, Ways to Reduce Poverty in the Economic System of Islam, (Integrated Journal for Research in Arts and Humanities, Volume-3 Issue-4, July 2023, pp. 113-120).
• Abdulrasaq Ariwoola, Challenges and Prospects of Cryptocurrency in Islamic Finance in Nigeria, (August 22, 2021).
• Zainuddin, Sahban & Andi Risma, Halal Certification as Sharia Legitimacy for Economic Empowerment of Zakat Mustahiq, (Journal of Law, Policy and Globalization, Vol.127, 2022).

From SmartCILP:

• Michael D. McNally, The Sacred and the Profaned: Protection of Native American Sacred Places That Have Been Desecrated, 111 California Law Review 395-464 (2023).
• Khaled A. Beydoun & Nura A. Sediqe, Unveiling: The Law of Gendered Islamophobia,111 California Law Review 465-527 (2023).
• Patricia McGuire, Title IX and Catholic Colleges' Long March into Modernity, [Abstract], 56 Creighton Law Review 341-358 (2023).
• Pooja R. Dadhania, Gender-Based Religious Persecution, 107 Minnesota Law Review 1563-1619 (2023).
• Thomas John Paprocki, Foreword. The Essential Relationship of the Judeo-Christian Intellectual Tradition to Ethics, Law & Public Policy, 37 Notre Dame Journal of Law Ethics & Public Policy 1-10 (2023).
• John S. Ehrett, Virtue and the Administrative State, [Abstract], 37 Notre Dame Journal of Law Ethics & Public Policy 43-80 (2023).

Recent Books:

• Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience, (Oxford University Press, June 27, 2023). reviewed in the Wall Street Journal.
• Paul L. Heck, Political Theology and Islam From the Birth of Empire to the Modern State, (Notre Dame University Press, November 2023).
• Thomas C. Berg, Religious Liberty in a Polarized Age, (W.D. Eerdmans Publishing Co., (July 11, 2023). Reviewed in a University of St. Thomas press release.

Court Refuses Stay Pending Appeal of Order That Attorneys Get Religious-Liberty Training

As previously reported, last month a Texas federal district court ordered sanctions against Southwest Airlines for its failing to comply with an earlier Order in the case that found the Airline had violated Title VII when it fired a flight attendant because of her social media messages about her religiously-motivated views on abortion. Southwest then filed a motion to stay the sanctions while the case is appealed. In Carter v. Transport Workers Union of America, Local 556, (ND TX, Aug. 31, 2023), the court denied the motion to stay the sanctions. Among other things, Southwest objected to the court's requirement that three of the Airline's attorneys who were responsible for non-compliance with the earlier Order attend at least 8 hours of religious liberty training conducted by the Christian legal non-profit Alliance Defending Freedom. The court said in part:

... Southwest complains that “[r]equiring religious-liberty training from an ideological organization with a particular viewpoint on what the law requires” is “unprecedented.” That appears to be more of a gripe than a legal objection, because Southwest doesn’t make any legal argument for why training with an “ideological organization” is unconstitutional or otherwise contrary to law.

In any event, the Court selected ADF for the following reason: Southwest does not appear to understand how federal law operates to protect its employees’ religious liberties. ADF has won multiple Supreme Court cases in recent years on the topic of religious liberties, evidencing an understanding of religious liberties.  And because ADF has agreed to conduct topical trainings in the past, ADF appears well-suited to train Southwest’s lawyers on a topic with which the lawyers evidently struggle.

In a footnote, the court added:

This doesn’t appear to be a First Amendment argument, as Southwest doesn’t cite the First Amendment or any First Amendment caselaw, so it appears that Southwest forfeited any First Amendment arguments concerning ADF’s viewpoint.

LawDork reports on the decision.

Texas Supreme Court Allows Ban on Transgender Care for Minors to Go into Effect

The Texas Supreme Court yesterday in State of Texas v. Loe, (TX Sup. Ct., Aug. 31, 2023), issued an Order allowing SB 14 to go into effect.  The law prohibits treating minors for gender dysphoria with surgery, puberty blocker or hormones. According to an ACLU press release:

A Travis County District Court had granted a temporary injunction last week that blocked implementation of the ban, but the Texas Attorney General immediately appealed to the Texas Supreme Court, thereby staying the injunction. The Texas Supreme Court did not provide any written explanation for allowing the law to remain in effect.

Court OK's Denial of Unemployment Benefits for Religious Objector to Covid Vaccine Mandate

In In re Parks v. Commissioner of Labor, (NY App., Aug. 31, 2023), a New York state appellate court affirmed the decision of the state Unemployment Insurance Appeal Bord denying unemployment compensation to a medical center security guard who was fired for refusing to comply with a Covid vaccine mandate. The court said in part:

Although claimant refused to comply with the mandate for personal reasons that he characterized as based upon his religious beliefs, the state mandate did not authorize a religious exemption. Contrary to claimant's contention that the vaccine mandate violates his First Amendment religious and other constitutional rights, religious beliefs do not excuse compliance with a valid, religion-neutral law of general applicability that prohibits conduct that the state is free to regulate, as the Board recognized.... When employment is terminated as a consequence of the failure to comply with such a law, including noncompliance with a religious motivation, the First Amendment does not prohibit the denial of unemployment insurance benefits based upon that noncompliance where, as here, the mandate has a rational public-health basis and is justified by a compelling government interest....

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Reproductive Rights Proponents Sue Ohio Ballot Board Over Ballot Language

On Monday, a suit seeking a writ of mandamus was filed in the Ohio Supreme Court by backers of Issue 1, "Right to Reproductive Freedom with Protections for Health and Safety." The suit challenges the Ohio Ballot Board's revised language describing the state constitutional amendment that will be on the November ballot in the state. (See prior posting.) Instead of placing the text of the proposed Amendment on ballots, the Ballot Board drafted new language which plaintiffs say misrepresents the proposed amendment. The complaint (full text) in State of Ohio ex rel. Ohioans United for Reproductive Rights v. Ohio Ballot Board, (OH Sup. Ct. filed 8/28/2023), alleges in part:

Article XVI of the Ohio Constitution requires the Ohio Ballot Board to prescribe ballot language for the Amendment that “properly identif[ies] the substance of the proposal to be voted upon” and does not “mislead, deceive, or defraud” voters. The language the Ballot Board adopted at its August 24, 2023, meeting flouts those requirements and aims improperly to mislead Ohioans and persuade them to oppose the Amendment. Accordingly, Relators request that the Court issue a writ of mandamus directing the Ballot Board to reconvene and adopt the full text of the Amendment as the ballot language. That remedy is appropriate because the Ballot Board’s prescribed language is irreparably flawed. In the alternative, Relators request that the Court issue a writ of mandamus directing the Ballot Board to reconvene and adopt ballot language that properly and lawfully describes the Amendment, correcting the numerous defects in the existing language....

CBS News reports on the lawsuit.

8th Circuit Rejects Satanic Temple's Complaint Over Closing Park to Its Display

 In The Satanic Temple v. City of Belle Plaine, Minnesota,(8th Cir., Aug. 30, 2023), the U.S. 8th Circuit Court of Appeals held that the district court was correct in dismissing free speech, free exercise, equal protection, and RLUIPA claims brought by The Satanic Temple (TST) against the City of Belle Plaine.  As summarized by the court:

In March 2017, the City gave two groups permits [to place monuments in Veterans Memorial Park]: the Belle Plaine Veterans Club and the Satanic Temple. The Veterans Club returned the kneeling soldier statue to the Park in April, but the Satanic Temple’s display wasn’t ready yet. While the Satanic Temple’s display was being built, people objected to it being placed in the Park. In June, the Satanic Temple told the City that its display was ready. The City Council then passed a “Recission Resolution,” closing the Park as a limited public forum, terminating both permits, and instructing the Veterans Club to remove its statue.

The court held:

The City closed the limited public forum to everyone, not just speakers with certain views. The Satanic Temple has not plausibly alleged that closing the Park as a limited public forum was unreasonable or viewpoint discriminatory....

...The Satanic Temple has not alleged any facts showing that its religious conduct was targeted for “distinctive treatment.”...

... The Satanic Temple has not plausibly alleged that the City’s resolutions burden its religious conduct or philosophy....

The Satanic Temple has not plausibly alleged that it and the Veterans Club were similarly situated or that it was treated differently. Nor has it plausibly alleged that the Rescission Resolution was discriminatory on its face or had a discriminatory purpose or impact. The City gave a permit to both groups, had no control over the fact that the Veterans Club placed its statue first, and closed the Park as a limited public forum to everyone. So the Satanic Temple has not plausibly alleged an equal protection claim.

Muslim Call to Prayer Can Be Amplified In New York City

Yesterday, New York City Mayor Eric Adams announced a new initiative to permit mosques to broadcast the call to public prayer on Fridays and during Ramadan. According the announcement from the Mayor's office:

 “Today, we are cutting red tape and saying clearly that mosques and houses of worship are free to amplify their call to prayer on Fridays and during Ramadan without a permit necessary....

... The NYPD’s new legal guidance clarifies for mosques and masjids that the call to prayer is allowed in New York City and not prohibited despite sound restrictions in city neighborhoods.

Under the new guidance, a mosque or masjid can broadcast the call to prayer every Friday between 12:30 PM and 1:30 PM as well as during the sunset prayers every evening during Ramadan....

The NYPD Community Affairs Bureau and Muslim faith leaders will work collaboratively in every neighborhood with mosques and masjids to communicate the new plans for Adhan to local community leaders and stakeholders. They will work to ensure that any sound device used to broadcast an Adhan is set at appropriate decibel levels and in accordance with the rules of the noise code within the city’s administrative code.

Jewish Faculty at NY College Can Move Ahead with Hostile Work Environment Lawsuit

In Lax v. City University of New York, (NY Kings Cty. Sup. Ct., Aug. 24, 2023), a New York state trial court allowed five Orthodox Jewish faculty members at Kingsborough Community College to move ahead with their religious hostile work environment and retaliation claims against the school, the faculty union and others (except for certain claims that duplicated ones being pursued administratively). According to the court:

Plaintiffs allege that they and other observant Jewish faculty and staff members at Kingsborough have faced pervasive, anti-religious discrimination from a particular segment of fellow faculty members who are the leaders of a faculty group called the Progressive Faculty Caucus of Kings borough Community College (PFC).... The New Caucus closely coordinated with the PFC.... Plaintiffs claim that the New Caucus members collaborated with the PFC members to dominate campus elections and call for the removal of observant Jewish faculty members, administrators, department chairs, and others at Kings borough. Plaintiffs allege that each of the defendants actually participated in, and aided and abetted, the conduct giving rise to their discrimination and retaliation claims.

Plaintiffs assert, among numerous alleged acts of discriminatory conduct, that ... the PFC and the New Caucus members lobbied against ... observant Jewish candidates running in campus elections; that the PFC members called for the removal of observant Jewish faculty members...; that the PFC organized an anti-discrimination event for a Friday night ... with the purpose of excluding Sabbath-observant Jewish members...; that the Union leaders applied pressure to Kingsborough's chief diversity officer ... to suppress the investigation of the Friday Night Event....

... CUNY claims that it is not responsible for the alleged discrimination against plaintiffs by a faculty group, i.e., the PFC, or the political party composed of certain members of the faculty, i.e., the New Caucus. CUNY maintains that plaintiffs lump all of their disparate allegations together in an attempt to hold it responsible for the alleged actions of the other defendants. 

An employer, such as CUNY, however, can be held liable for an employee's discriminatory act where "the employer became a party to it by encouraging, condoning, or approving it"....

Legal Insurrection reports on the lawsuit.

Ecclesiastical Abstention Doctrine Does Not Apply to Church's Fraud Claims Against Former Pastor

 In New Bethel Baptist Church v. Taylor, (TX App., Aug. 29, 2023), a Texas state appellate court held that the ecclesiastical abstention doctrine does not prevent civil courts from adjudicating fraud, breach of fiduciary duty and conversion claims against its former pastor who also served as the general contractor on a church construction project.  Plaintiff claims that the pastor withdrew $300,000 from the church's bank account without authorization. The court concluded that the claims can be resolved using neutral principles of law. the court said in part:

... [T]he resolution of these causes of action does not depend on the interpretation of New Bethel’s bylaws and constitutions or other relevant provisions of governing documents. Indeed, this is an example of a civil law controversy in which a church official happens to be involved....

However, the court affirmed the dismissal of the suit because the attorney did not carry her burden of proof that she was authorized to represent the church. The court said in part:

... [R]egardless of how it is named or classified in the underlying suit, it is undisputed that there is only one church. Within this one church, there are two competing factions claiming control, i.e., the board of deacons and directors. With two competing factions claiming control of the church, attorney Robinson, as the challenged attorney, was either authorized to represent both entities, or she was not. In granting Taylor’s rule 12 motion to show authority, the trial court concluded that attorney Robinson failed to discharge her burden of proof to show her authority to act and nothing more.

Title VII Claim for Denying Religious Exemption from Vaccine Mandate Moves Ahead

In MacDonald v. Oregon Health & Science University, (D OR, Aug, 28, 2023), an Oregon federal district court refused to dismiss a Title VII claim by a former nurse in a hospital's Mother and Baby Unit who was denied a religious exemption from the hospital's Covid vaccine mandate. The hospital argued that because plaintiff's job duties required her to interact with vulnerable pregnant mothers and newborn babies, any accommodation would pose an "undue hardship" on the hospital.  The court pointed out that on a motion to dismiss, unlike on a motion for summary judgment, the court is generally not permitted to consider evidence outside of the pleadings, saying in part:

Accordingly, this Court finds that, at this stage, it is unable to properly consider the extrinsic evidence on which Defendants rely to show either that there were no other viable accommodations to Plaintiff’s vaccination, or that any accommodations would have created an undue hardship consistent with Groff....

... [O]n a fuller evidentiary record, Defendants may be able to satisfy their burden to show that any accommodation would indeed have resulted in a substantial cost to OHSU. But Defendants have not met that burden at this stage.

The court however dismissed plaintiff's 1st Amendment free exercise claim, concluding that defendants had qualified immunity.

Challenge To Maine's Past Covid Restrictions on Churches Is Dismissed

In In re COVID-Related Restrictions on Religious Services, (DE Super., Aug. 28, 2023), a Delaware Superior Court dismissed a suit challenging now-rescinded restrictions that limited the number of attendees and the activities in houses of worship during the Covid pandemic. The court concluded that the governor had qualified immunity from damage claims because at the time it was not clearly established that these types of restrictions violated the U.S. Constitution. The State Tort Claims Act gives the governor immunity from damage actions for violation of the Delaware Constitution. The court also concluded that there is no case or controversy to give it jurisdiction to issue a declaratory judgment and that plaintiffs lack standing to bring their claims, saying in part:

The Court can have no influence on the alleged past harm caused by the Restrictions when they have already been terminated years ago.

WDEL News reports that plaintiffs plan an appeal to the state Supreme Court.

New Jersey Settles With Township Accused of Discriminating Against Orthodox Jewish Residents

 A Consent Order (full text) was entered yesterday by a New Jersey trial court in Platkin v. Jackson Township, (NJ Super., Aug. 28, 2023).  In the suit, the state alleged that the Township had violated the Law Against Discrimination by taking zoning and enforcement actions against the growing Orthodox Jewish population in the Township. (See prior posting.) Under the Order, the Township must pay $275,000 in penalties and place another $150,000 in a Restitution Fund. It must end its discriminatory use of land use and zoning regulations and create a Multicultural Committee. It must create procedures for erecting Sukkahs and eruvim, and must comply with a previously issued order in federal enforcement case to zone to allow religious schools, including schools with dormitories, in various parts of the Township. The New Jersey Attorney General issued a press release with further information on the settlement agreement.

Now Ohio Ballot Language On Abortion Rights Is The Issue

As reported by the Statehouse News Bureau, proponents of a reproductive rights amendment to the Ohio Constitution which will be voted on in November are considering a lawsuit against the Ohio Ballot Board which rejected the language proponents asked to be used on the ballot that voters will see. The Board replaced proponents' language with language drafted by Ohio's Secretary of State who is an abortion opponent. Proponents' Initiative Petition asked for the full 250-word text of the proposed Amendment to appear on the ballot.  Secretary of State Frank LaRose, saying that this was too long, instead drafted a 203-word Summary which uses the term "unborn child" four times in describing the effect of the proposed Amendment.

Recent Articles of Interest

From SSRN:

• Perry Dane, 'Luminous and Obscure': Into the Depths of Constitutional Meaning, (Canopy Forum, Center for the Study of Law and Religion at Emory University (online), August 2023).
• Roman Zinigrad & Stephen W. Sawyer, State and Religion: The French Response to Jihadist Violence,  (Religions 14, no. 8: 1010, 2023).
• Jose Ryan Pelongco, Promoting Equality in the Workplace: Debunking the Heteronormative Assumption Applied to Philippine Legislation,((66 Ateneo L.J. 1411 (2022)).
• Matthew Cavedon, Las Casas’s Use of Legal Interpretive Rules at Valladolid, (August 11, 2023).
• Nathan Ristuccia, Penitent Privilege in the Age of Abrogation, (Mississippi Law Journal Online, 2023).
• Lisa Spagnolo & Maria Bhatti, Conflicts of Interest between Shariah and International Sale of Goods: Does CISG Interest Fit with Islamic Law?, (49(1) Monash University Law Review (2023)).
• Dov Fox & Jill Wieber Lens, Texas Says a Fetus Is a Child, Except When a Parent Sues a Negligent Doctor or State Official, (Slate (online), August 23, 2023).
• Zainuddin Zainuddin, Salle Salle & Andi Risma, Balanced Justice in Islamic Inheritance to Realize Unity and Sustainability of Collective Life, (August 13, 2023).

From SmartCILP:

• Wilson Huhn, Analysis of Carson v. Makin, 61 Duquesne Law Review 50-61 (2023).
• Michael J. Broyde & Ariel J. Liberman, Learning Law Young: Towards a More Robust, Impactful Civics Education Modeled off of Jewish Law Learning, 52 Journal of Law & Education 1-45 (2023). 
• Mark Strasser, Primary and Secondary Religious Schools and the Disestablishment of Everson, 32 Southern California Interdisciplinary Law Journal 355-388 (2023).
• Mark Strasser, God-Talk in the Public Schools, 29 Virginia Journal of Social Policy & the Law 268-310 (2022).

Jewish Couple Denied Child Placement Services by United Methodist Agency Have Standing to Sue

In Rutan-Ram v. Tennessee Department of Children's Services, (Aug. 24, 2023), a Tennessee state appellate court reversed a decision of a special 3-judge trial court (see prior posting) and held that a Jewish couple who allege religious discrimination by a state-subsidized United Methodist child-placement agency have standing to sue.  The agency refused to provide the couple with foster care training and a home study because the couple did not share the agency's religious beliefs. A Tennessee statute protects faith-based agencies that refuse to participate in placing a child because of the agency's religious or moral convictions. Subsequently the Department of Children's Services provided the couple directly with the training required. The court said in part:

In the present case, the allegations of the complaint assert that the Couple has been denied and are being denied equal access to stated-funded foster and adoption services because of their Jewish faith. In finding that the Couple lacked standing, the three-judge panel again emphasized that the State was providing the Couple with child placement services. However, when the state makes it more difficult for members of one group than for members of another group to obtain services, the injury in fact “is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” ...

When a statute subjects a group of people to unequal treatment based upon their religious beliefs, the fact that the statute may allow discrimination against other religious groups does not negate a disfavored group’s standing to challenge the statute....

The court also concluded that six other Tennessee taxpayers who were co-plaintiffs have taxpayer standing to sue. AP reports on the decision. [Thanks to Thomas Rutledge for the lead.]

West Virginia's Ban on Prescribing Mifepristone By Telemedicine Is Pre-Empted By FDA Rules

In GenBioPro, Inc. v. Sorsaia,, (D WV, Aug. 24, 2023), a West Virginia federal district court dismissed a challenge to West Virginia abortion restrictions that are no longer in effect. The restrictions will go back into effect only if provisions of the more recent Unborn Child Protection Act (UCPA) are held unconstitutional. The court held that neither federal statutes nor FDA rules pre-empt state restrictions on when abortions may be performed. However, the court refused to rule further on the UCPA provisions, saying in part:

[T]he Court has not found that the UCPA is unconstitutional. As none of these prior restrictions are currently in effect, this Court may not issue an advisory opinion as to the constitutionality of a law not presently operative.

The court also rejected arguments that state restrictions on the sale of mifepristone violate the Commerce Clause, saying in part:

[T]he Supreme Court and Courts of Appeals have repeatedly affirmed that morality-based product bans do not intrinsically offend the dormant Commerce Clause. 

However the court did find that West Virginia's ban on prescribing mifepristone by telemedicine, which is still in effect, is pre-empted by FDA rules allowing telemedicine prescriptions for the drug. The Hill reports on the decision.

Religious or Parental Rights Not Violated By School Classroom Discussion of LGBTQ-Themed Books

In Mahmoud v. McKnight, (D MD, Aug. 24, 2023), a Maryland federal district court refused to issue an injunction to allow parents to opt their public-school children out of classroom reading and discussion of books with LGBTQ themes. Parents claim that the books' messages violate parents' sincerely held religious beliefs.  The court said in part: 

In essence, the plaintiffs argue that by being forced to read and discuss the storybooks, their children will be pressured to change their religious views on human sexuality, gender, and marriage. The Court interprets this argument as an indoctrination claim.... 

The plaintiffs have not identified any case recognizing a free exercise violation based on indoctrination....

Here, the plaintiffs have not shown that the no-opt-out policy likely will result in the indoctrination of their children....

Separate from any indoctrination claim, Mahmoud and Barakat contend their son would be forced to violate Islam’s prohibition of “prying into others’ private lives” and its discouragement of “public disclosure of sexual behavior” if his teacher were to ask him to discuss “romantic relationships or sexuality.”... Forcing a child to discuss topics that his religion prohibits him from discussing goes beyond the mere exposure to ideas that conflict with religious beliefs. But nothing in the current record suggests the child will be required to share such private information. Based on the evidence of how teachers will use the books, it appears discussion will focus on the characters, not on the students.....

The parents assert that their children’s exposure to the storybooks, including discussion about the characters, storyline, and themes, will substantially interfere with their sacred obligations to raise their children in their faiths.... [T]he parents’ inability to opt their children out of reading and discussion of the storybooks does not coerce them into violating their religious beliefs....  The parents still may instruct their children on their religious beliefs regarding sexuality, marriage, and gender, and each family may place contrary views in its religious context. No government action prevents the parents from freely discussing the topics raised in the storybooks with their children or teaching their children as they wish.

In a press release on the decision, Becket Fund announced that the case will be appealed to the 4th Circuit.

Human Resources Employee Sues Seeking Religious Accommodation to Avoid DEI Participation

 A lawsuit was filed last month in a California federal district court by Courtney Rogers, a former human resources employee of a multinational food service company, who was fired after she objected to taking part in the company's DEI program, captioned Operation Equity.  Rogers sought a religious accommodation because Operation Equity violates her religious and moral beliefs. The program offers special training and mentorship to women and people of color. The complaint (full text) in Rogers v. COMPASS Group USA, Inc., (SD CA, filed 7/24/2023), alleged in part:

59. ROGERS has sincerely held religious beliefs, based on deeply and sincerely held religious, moral, and ethical convictions, that people should not be discriminated against because of their race.

60. ROGERS’s religious beliefs conflicted with the job’s requirements because she was required to work on implementing something COMPASS called “Operation Equity,” an employment program designed to exclude white males from opportunities for training, mentorship and promotion.

Rogers had proposed swapping 2 to 3 hours per week of her duties with another employee, but the company refused to discuss an accommodation. The complaint alleges violations of Title VII and various provisions of California law. She seeks damages and reinstatement. SHRM reports on the lawsuit.

South Carolina Supreme Court Upholds Heartbeat Abortion Ban

In Planned Parenthood South Atlantic v. State of South Carolina, (SC Sup. Ct., Aug. 23, 2023), the South Carolina Supreme Court upheld the 2023 version of South Carolina's heartbeat abortion ban enacted in response to an earlier decision by the same court striking down an earlier version of the law. The court said in part:

[T]he legislature has found that the State has a compelling interest in protecting the lives of unborn children. That finding is indisputable and one we must respect. The legislature has further determined, after vigorous debate and compromise, that its interest in protecting the unborn becomes actionable upon the detection of a fetal heartbeat via ultrasound by qualified medical personnel. It would be a rogue imposition of will by the judiciary for us to say that the legislature's determination is unreasonable as a matter of law—particularly on the record before us and in the specific context of a claim arising under the privacy provision in article I, section 10 of our state constitution.

As a result, our judicial role in this facial challenge to the 2023 Act has come to an end. The judiciary's role is to exercise our judgment as to whether the legislative weighing of competing interests was within the range of possible, reasonable choices rationally related to promoting the legislature's legitimate interests. Having concluded that it was, we consequently defer to the legislature's gauging of the profound, competing interests at stake. Accordingly, we vacate the preliminary injunction and hold the 2023 Act is constitutional.

Justice Few filed a concurring opinion, saying in part:

Ultimately, the General Assembly did not attempt to simply re-enact the same legislation, as Planned Parenthood argues. Rather, it amended the 2021 Act in what appears to be a sincere attempt to comply with the narrowest reading of this Court's ruling in Planned Parenthood I. The question now before the Court, therefore, is whether the attempt was successful; do the changes the General Assembly made from the 2021 Act to the 2023 Act make it possible for this Court to find the 2023 Act constitutional under article I, section 10, despite the fact the threshold for banning most abortions did not change....

When this Court evaluated the constitutionality of the 2021 Act, we balanced the State's interest in protecting unborn life against the statutory countervailing interest of "informed choice" and the privacy interests arising from article I, section 10. As there is no "informed choice" provision in the 2023 Act, the State's interest in protecting unborn life is now balanced against only the constitutional privacy interests.

Chief Justice Beatty filed a dissenting opinion, saying in part:

In my view, because the material terms of the 2023 Act have not changed from the 2021 Act, logic and respect for the doctrine of stare decisis dictate that the 2023 Act should likewise be declared unconstitutional.

 AP reports on the decision.

Statute of Limitations Not Tolled on Navy Chaplains' Claims

In In re: Naval Chaplaincy, (D DC, Aug. 23, 2023), the D.C. federal district court held that plaintiffs have not shown that the running of the statute of limitations on their free exercise claims should be tolled because of fraudulent concealment. In the case, which has been in litigation for nearly 25 years, non-liturgical Protestant chaplains alleged discrimination against them by selection boards that control promotions and early retirements of Navy chaplains. (See prior posting.)

Church Autonomy Bars Court Adjudicating Dispute Over Withdrawal from Parent Body

 In Deutsche Evangelisch Lutherische Zions Gemeinde v. Evangelical Lutheran Church in America, (Kings Cty NY Sup. Ct., Aug. 16, 2023), a New York state trial court dismissed a suit brought by a German Lutheran church in Brooklyn that claims it has broken away from its parent bodies, the Evangelical Lutheran Church in America (ELCA) and ELCA's Metropolitan New York Synod over the parent bodies' stance accepting same-sex marriage and ordination of gay clergy. The parent bodies claim that the church is still affiliated with them. Plaintiff asks the court to determine that its membership with the parent bodies has been terminated and that the parent bodies lack authority to take control of church property. It also alleges in defamation claims that false statements about its affiliation injure its reputation and dissuade new members from joining. In rejecting those claims, the court said in part:

... [T]he neutral principles of law approach cannot be applied to adjudicate plaintiff's property claims which directly call into question the authority that has been vested in the synod to impose synodical administration which would allow it to dissolve the church and take control over its property....

The MNYS's power to impose synodical administration is far broader, however, than its authority to take control over a local church's property.... Plaintiff's argument ... ignores the inherent religious elements.... [T]he decision to impose synodical administration over a church involves consideration by the Synod of such issues as church governance, religious doctrine and practice, scripture, and the spiritual well-being of the local church's remaining members. Thus, it concerns subject matter with which this court is forbidden from entangling itself pursuant to the First Amendment. Indeed, synodical administration is an inherently religious matter although it incidentally concerns a local church's property.....

In order to resolve the dispute of whether plaintiff terminated its membership with defendants, this court would necessarily intrude into areas of church polity, religious doctrine, practice, and scripture in order to force the Synod to accept the votes taken by plaintiff's congregation in 2008 and 2009 to terminate the relationship. Whether plaintiff remains a member church of the ELCA and the MNYS is more than just a mere associational question but a religious one.

San Francisco Archdiocese Files for Bankruptcy Reorganization

In a press release yesterday, the Catholic Archdiocese of San Francisco announced that it has filed for Chapter 11 Bankruptcy Reorganization. According to the press release:

The filing is necessary to manage and resolve the more than 500 lawsuits alleging child sexual abuse brought against RCASF under California Assembly Bill 218, which allowed decades-old claims to be filed by December 31, 2022, that otherwise were time barred....

The 88 parishes within the Archdiocese are independently managed and self-financed and, along with their parochial schools, are not included in the filing. The Real Property Support Corporation, Capital Asset Support Corporation, high schools, Catholic cemeteries, St Patrick’s Seminary & University, and Catholic Charities associated with RCASF also are not included in the filing and will continue to operate as usual.

KEYT News reports on the filing and reactions to it.

5th Circuit En Banc Expands Its Interpretation of Title VII

In Hamilton v. Dallas County, (5th Cir., Aug. 18, 2023), the U.S. 5th Circuit Court of appeals in an en banc decision overturned the Circuit's previous precedent that held employment discrimination violates Title VII only if the discrimination involved an ultimate employment decision such as hiring, granting leave, discharging, promoting or compensating. In this case, the Dallas County Sheriff's Department gave its detention service officers two days off each week.  However, only men could choose to take two weekend days; women officers could only have one weekend day and one weekday, or two weekdays. The majority said in part:

Nowhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions. To be sure, the statute prohibits discrimination in ultimate employment decisions—“hir[ing],” “refus[ing] to hire,” “discharg[ing],” and “compensation”—but it also makes it unlawful for an employer “otherwise to discriminate against” an employee “with respect to [her] terms, conditions, or privileges of employment.”

Our ultimate-employment-decision test ignores this key language.

While the decision relates to a sex discrimination claim, the holding applies equally to religious discrimination.

Judge Ho filed a concurring opinion.

Judge Jones, joined by Judges Smith and Oldham concurred only in the judgment, saying in part:

The majority's incomplete ruling ... leaves the bench, bar, and employers and employees with no clue as to what this court will finally declare to be the minimum standard for Title VII liability....

... [A]s the majority recognizes, the Supreme Court emphasizes that Title VII does not effectuate a workplace “general civility code.”...Yet as written, the majority opinion has no baseline for “discrimination” based on terms or conditions of employment.

Court Preliminarily Enjoins Georgia's Ban on Hormone Therapy for Transgender Minors

In Koe v. Noggle, (ND GA, Aug. 20, 2023), a Georgia federal district court issued a preliminary injunction against enforcement of Georgia's ban on hormone replacement therapy for treatment of gender dysphoria in minors. The court said in part:

... SB 140 is subject to intermediate scrutiny both because it classifies on the basis of natal sex ... Adams, and because it places a special burden on nonconformity with sex stereotypes....

First, the preliminary record evidence of the medical risks and benefits of hormone therapy shows that a broad ban on the treatment is not substantially likely to serve the state’s interest in protecting children.... 

... [I]t should be recalled that the question put to the Court is not what the correct course of treatment is for an adolescent with gender dysphoria. The question is whether Georgia has shown an “exceedingly persuasive justification” for the challenged legislative scheme—a scheme that prohibits clinicians and parents from determining the correct course of treatment on an individualized basis, and which does so in a sex-based manner in that it imposes this prohibition only when it comes to “hormone replacement therapy” as a treatment for gender dysphoric youth....

... Defendants’ position that the quality of the existing evidence supporting hormone therapy justifies a ban of that therapy is not persuasive.

The court's decision was handed down one day before the 11th Circuit Court of Appeals (which includes Georgia) issued an opinion vacating a preliminary injunction against Alabama's ban on hormone treatment for minors with gender dysphoria. (See prior posting.)  The Hill reports on the decision.

Illinois Regulation of Limited Purpose Pregnancy Centers Violates 1st Amendment

In National Institute of Family and Life Advocates v. Raoul, (ND IL, Aug. 4, 2023), an Illinois federal district court issued a preliminary injunction against enforcement of Illinois SB 1909 which amends the state Consumer Fraud Act to prohibit limited purpose pregnancy centers from using misrepresentations or concealment to interfere with a person's access to abortion or emergency contraception. the court said in part:

SB 1909 is content based discrimination. The subject of the prohibited speech is not just abortion but speech that emphasizes the negative effects of abortion. What's more, there is ample evidence in the record before the Court at this time that SB 1909 was adopted because of Defendant Raoul's disagreement about the content of Plaintiffs' speech. The message of Plaintiffs' speech is subject to prohibition under SB 1909 but abortion providers' speech is specifically excluded from being sanctioned under the Consumer Fraud Act.

1st Amendment Requires Exemption from Anti-Bias Law for Business That Discriminates Against Same-Sex Weddings

In Country Mill Farms, LLC v. City of East Lansing, (ED MI, Aug. 21, 2023), a Michigan federal district court held that the city of East Lansing violated the Free Exercise rights of Country Mill Farms and its owner when the city refused to invite Country Mill to be a vendor at East Lansing's Farmer's Market.  The refusal was based on Country Mill's violation of the city's anti-discrimination ordinance in another part of Country Mill's business.  Country Mill rents out a portion of its farm property for weddings, but for religious reason will not rent it out for same-sex weddings. The court held that the discrimination ban was not generally applicable because of exemptions in the anti-discrimination ordinance that would allow the city to do business with firms that discriminate on the basis of sexual orientation. The court concluded in part:

In light of the nondiscretionary and the discretionary exemptions in the ordinance, the City has not demonstrated a compelling interest in excluding Plaintiffs from the Farmer’s Market. The City’s nondiscrimination ordinance tolerates the same discrimination in other situations.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

11th Circuit: No Constitutional Right to Treat Minors with Gender Transition Medications

 In Eknes-Tucker v. Governor of Alabama, (11th Cir., Aug. 21, 2023), the U.S. 11th Circuit Court of Appeals vacated a district court's preliminary injunction against Alabama's ban on hormone blockers and cross-sex hormones to treat minors with gender dysphoria. The court said in part:

On review, we hold that the district court abused its discretion in issuing this preliminary injunction because it applied the wrong standard of scrutiny. The plaintiffs have not presented any authority that supports the existence of a constitutional right to “treat [one’s] children with transitioning medications subject to medically accepted standards.” Nor have they shown that section 4(a)(1)–(3) classifies on the basis of sex or any other protected characteristic. Accordingly, section 4(a)(1)–(3) is subject only to rational basis review. Because the district court erred by reviewing the statute under a heightened standard of scrutiny, its determination that the plaintiffs have established a substantial likelihood of success on the merits cannot stand.

Judge Brasher filed a concurring opinion, saying in part:

[E]ven if the statute did discriminate based on sex, I think it is likely to satisfy intermediate scrutiny. If Alabama’s statute involves a sex-based classification that triggers heightened scrutiny, it does so because it is otherwise impossible to regulate these drugs differently when they are prescribed as a treatment for gender dysphoria than when they are prescribed for other purposes. As long as the state has a substantial justification for regulating differently the use of puberty blockers and hormones for different purposes, then I think this law satisfies intermediate scrutiny.

AL.com reports on the decision.

Enforcing Agreement To Cooperate With Jewish Religious Court Does Not Violate Establishment Clause

In Satz v. Satz, (NJ Super., Aug. 18, 2023), a New Jersey state appellate court upheld a trial court's order enforcing a marital settlement agreement (MSA) that the parties had entered in connection with their divorce proceedings. One provision in the agreement obligated the parties to comply with recommendations of a Jewish religious court (beis din) regarding the husband giving a get (Jewish bill of divorce) to the wife. According to the court:

On July 6, 2022, the beis din issued a fifteen-page ruling finding that defendant had not properly responded to summonses from rabbinical courts, that defendant is "obligated to divorce [plaintiff] forthright and immediately," and that his refusal to provide plaintiff a get "is a form of abuse." 

Affirming the trial court, the appellate court rejected the husband's Establishment Clause challenge, saying in part:

In this case ... the trial court was asked to enforce a civil contract, not a religious one. Nor did the trial court substantively review or affirm the beis din ruling. For purposes of this appeal, the beis din ruling is essentially a report confirming plaintiff's assertion that defendant failed to participate in the beis din proceeding in violation of his obligations under the MSA....

Defendant agreed in the MSA to abide by the beis din ruling, whatever that might be. In enforcing that agreement, the trial court in no way interpreted religious doctrine. The orders entered in this case scrupulously avoid entanglement with religion because the trial court applied well-established principles of civil contract law, not rabbinical law. The latter body of law remained solely within the province of the beis din and was not interpreted or applied by the Family Part judge, nor by us.

Recent Articles of Interest

From SSRN:

• Lili Levi, Anti-antisemitism Now, (August 8, 2023).
• Nicholas Aroney & Paul Taylor, Building Tolerance into Hate Speech Laws: Australian State and Territory Anti-vilification Legislation Reviewed Against International Law Standards, (University of Queensland Law Journal, 2023, Vol 42).
• Asma Uddin, Religious Liberty for Religious Child-Welfare Organizations: Promises and Perils, (Notre Dame Law Review Reflection, Vol 98:S89, 2023).
• Nicholas A. R. Fraser & Colton Fehr, Studying Religious Symbols and Bias in Court Proceedings, (Osgoode Legal Studies Research Paper Forthcoming).
• Beatrice Jessie Hill, Religious Nondelegation, (Loyola University Chicago Law Journal, Vol. 54, 2023).
• Michael Morley & F. Andrew Hessick, Against Associational Standing, (University of Chicago Law Review, Forthcoming).
• Richard M. Re,  Does the Discourse on 303 Creative Portend a Standing Realignment?, (Notre Dame Law Review Reflection, Forthcoming).
• Joseph Blocher & Brandon L. Garrett, Originalism and Historical Fact-Finding, (Georgetown Law Journal, Forthcoming).
• Carlos A. Ball, First Amendment Exemptions for Some, (Harvard Law Review Forum, Vol. 137, p. ___ (2023, Forthcoming)).
• Gennady Shkliarevsky, In the Name of Inclusion: Why Repealing Affirmative Action is a Right Thing to Do ,(August 4, 2023).

From SSRN (Islamic Law):

• Karim Aboul-Dahab, The Contribution of the Islamic and Social Banks to the Concept of Sustainable Development, (European Journal of Islamic Finance, Vol. 10, No. 2 (2023)).
• Imran A. Nyazee, Denying the Islamic Right of the Poor in Minerals in Pakistan, (August 3, 2023).
• Ghulam Mustafa Nukhba, Exploring the Analytical Approach in Analyzing Prophetic Hadith: Methodologies and Insights from Hadith Critics, (Integrated Journal for Research in Arts and Humanities, 3(4), 29–37, July 2023).

From SmartCILP:

• Lena Khor, Open Love, Religion, and Human Rights, [Abstract], 45 Human Rights Quarterly 134-156 (2023).

9th Circuit Affirms Preliminary Injunction Against Idaho's Ban on Transgender Women in School Sports

 In Hecox v. Little, (9th Cir., Aug. 17, 2023), the U.S. 9th Circuit Court of Appeals upheld a preliminary injunction issued by the district court barring enforcement of Idaho's ban on transgender women participating on women's sports teams.  The ban applies to public primary and secondary schools and public colleges, as well as to other schools that compete against public schools or colleges. The Act also creates a procedure for disputing the sex of a member of a women's team. The court said in part:

The district court did not err in concluding that heightened scrutiny applies because the Act discriminates against transgender women by categorically excluding them from female sports, as well as on the basis of sex by subjecting all female athletes, but no male athletes, to invasive sex verification procedures to implement that policy....

... [T]he Act sweeps much more broadly than simply excluding transgender women who have gone through “endogenous puberty.” The Act’s categorical ban includes transgender students who are young girls in elementary school or even kindergarten. Other transgender women take puberty blockers and never experience endogenous puberty, yet the Act indiscriminately bars them from participation in women’s student athletics, regardless of their testosterone levels....

Second, as the district court found, there was very little anecdotal evidence at the time of the Act’s passage that transgender women had displaced or were displacing cisgender women in sports or scholarships or like opportunities....

We must “reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn.”...

We agree with the district court that, contrary to the Act’s express purpose of ensuring women’s equality and opportunities in sports, the sex dispute verification process likely will discourage the participation of Idaho female students in student athletics by allowing any person to dispute their gender and then subjecting them to unnecessary medical testing and genital inspections. Because the Act’s means undermine its purported objectives and impose an unjustifiable burden on all female athletes in Idaho, the district court did not abuse its discretion by finding that the sex verification provision likely would not survive heightened scrutiny....

Judge Christen dissented in part, contending that the verification procedure discriminates on the basis of the team an athlete chooses to join, not on the basis of sex. She also contends that the trial court's injunction is not sufficiently specific or sufficiently tailored.  UPI reports on the decision.

Catholic Schools Sue Over Rules for Inclusion in Colorado's Universal Preschool Funding

Suit was filed this week in a Colorado federal district court by the Catholic Archdiocese of Denver and two Catholic schools challenging the restrictions imposed on participation in Colorado's universal preschool funding program. The complaint (full text) in St. Mary Catholic Parish in Littleton v. Roy, (D CO, filed 8/16/2023) alleges that plaintiffs' free exercise and free speech rights were infringed by conditions that did not allow giving preference to Catholic families. Rules did allow preference for members of the church's congregation, but not for a broader religious preference. The complaint also alleged that the program's non-discrimination requirements prevent Catholic schools from requiring teachers. administrators and staff to abide by Catholic teachings on marriage, gender and sexuality; from considering whether a student or family has identified as LGBTQ; and from assigning dress requirements, pronoun usage and restroom use on the basis of biological sex. Becket issued a press release announcing the filing of the lawsuit.