DOE Enjoined from Applying New Title IX Rules Protecting Transgender Students In 4 States

In State of Louisiana v. U.S. Department of Education, (WD LA, June 13, 2024), a Louisiana federal district court enjoined the Department of Education from enforcing against four states new rules under Title IX which, among other things, bar discrimination by educational institutions against transgender students. (See prior posting). The new rules essentially apply the Supreme Court's interpretation of Title VII in the Bostock case to Title IX as well. The injunction applies to the states that were plaintiffs in the case-- Louisiana, Mississippi, Montana and Idaho. The court found that the new rules violate a number of statutory and constitutional provisions, saying in part:

In applying these statutory principles to Title IX, the Court finds that the term “sex discrimination” only included discrimination against biological males and females at the time of enactment. ,,,,

... [T]his Court finds that the application of Bostock and the Final Rule’s definition of “sex discrimination” contradict the purpose of Title IX.... Bostock does not apply because the purpose of Title VII to prohibit discrimination in hiring is different than Title IX’s purpose to protect biological women from discrimination in education.  ...

Defendants thus seemingly use Bostock in an attempt to circumvent Congress and make major changes to the text, structure, and purpose of Title IX. Such changes are undoubtedly contrary to Title IX and contrary to the Law.....

Plaintiffs argue the Final Rule’s new broad “severe or pervasive” standard, which considers speech or other expressive conduct that “limits” a person’s ability to participate in a program to be discriminatory harassment, cannot be squared with Title IX....

While Title VII is vastly important, and the Court sees the merits in harassment standards set forth in those provisions, the Court cannot simply apply the same standard to federally funded educational institutions. The “harassment standard” created by the Final Rule is obviously contrary to Title IX, and Plaintiffs have made compelling arguments for how it can violate the free speech right of the First Amendment. ...

Because the Final Rule is a matter of both vast economic and political significance, the Court finds the enactment of this rule involves a major question pursuant to the major questions doctrine. Therefore, Congress must have given “clear statutory authorization” to the applicable agency. The Court finds that Congress did not give clear statutory authorization to this agency....

This Court finds the Final Rule violates the Spending Clause because it contains ambiguous conditions and because the Final Rule violates other constitutional provisions – free speech and free exercise. Because this Court has found the Final Rule violates the Spending Clause, there is no need to discuss the Plaintiffs’ argument that the Final Rule violates the non-delegation doctrine....

This Court further finds that the Final Rule is arbitrary and capricious because the DOE (1) failed to address relevant factors and (2) and failed to consider important aspects of the problem. 

Court Upholds Firing of Nurse with Religious Objections to Flu Vaccine

In French v. Albany Medical Center, (ND NY, June 12, 2024), a New York federal district court upheld a hospital's firing of a nurse who refused for religious reasons to receive the flu vaccine. Plaintiff based her religious exemption claim on teachings of the "Israelite" religion which she adopted in 2018. Rejecting plaintiff's claim that the hospital violated Title VII by refusing to accommodate her religious beliefs, the court said in part:

[T]he Court concludes that Plaintiff's requested accommodation was not reasonable as it was a blanket exemption request which would have allowed her to continue interacting with staff and vulnerable patients while unvaccinated. This exemption would have caused an undue hardship on Defendant.

The court also rejected plaintiff's claims of disparate treatment and retaliation, saying in part:

Plaintiff has not presented any evidence that her religion was a motivating factor in Defendant's decision to suspend and terminate her.

Florida Restrictions on Gender-Affirming Care Are Unconstitutional

In Doe v. Ladapo, (ND FL, June 11, 2024), a Florida federal district court in a 105-page opinion held unconstitutional many of the provisions in Florida law that ban gender-affirming care for minors and regulate it for adults. The court, analyzing equal protection and substantive due process challenges, said in part:

The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear….

For some, the denial that transgender identity is real—the opposition to transgender individuals and to their freedom to live their lives—is not different in kind or intensity from the animus that has attended racism and misogyny, less as time has passed but still today. And some transgender opponents invoke religion to support their position, just as some once invoked religion to support their racism or misogyny. Transgender opponents are of course free to hold their beliefs. But they are not free to discriminate against transgender individuals just for being transgender. In time, discrimination against transgender individuals will diminish, just as racism and misogyny have diminished. To paraphrase a civil-rights advocate from an earlier time, the arc of the moral universe is long, but it bends toward justice…..

This record includes overwhelming evidence that the House sponsors and a significant number of other House members were motivated by anti-transgender animus. This is clear from their own animus-based statements and from the failure of other members to call them out…..

Banning gender-affirming care for minors across the board in all circumstances, rather than appropriately regulating such care, is not sufficiently related to the legitimate state interest in safeguarding health.  

The ban on care for minors does not survive intermediate scrutiny….

[T]here are some, including the Governor and quite a few members of the Florida Legislature, who believe transgenderism—and thus gender-affirming care—is morally wrong. Enforcing this moral view is not, however, a legitimate state interest that can sustain this statute, even under rational-basis scrutiny….

[W]hether based on morals, religion, unmoored hatred, or anything else, prohibiting or impeding a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest…..

In addition to invalidating the ban on care for minors, the court also struck down various unnecessary limits placed on gender affirming care for adults.

The Hill reports on the decision and says that the state will appeal it.

Supreme Court Says Plaintiffs Lack Standing To Challenge FDA's Rules on Abortion Drugs

In Food and Drug Administration v. Alliance for Hippocratic Medicine, (Sup. Ct., June 13, 2024), the U.S. Supreme court today held unanimously that plaintiffs who are challenging the FDA’s rules on prescribing and distributing the abortion drug mifepristone lack standing to bring the lawsuit.  The Court said in part:

Here, the plaintiff doctors and medical associations are unregulated parties who seek to challenge FDA’s regulation of others. Specifically, FDA’s regulations apply to doctors prescribing mifepristone and to pregnant women taking mifepristone. But the plaintiff doctors and medical associations do not prescribe or use mifepristone. And FDA has not required the plaintiffs to do anything or to refrain from doing anything….

The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone. But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court. Here, the plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact. For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions. The plaintiffs may present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process. And they may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral processes. 

“No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”

Justice Kavanaugh wrote the Court’s opinion, and Justice Thomas filed a concurring opinion.

AP reports on the decision.

State Funding of Only Secular Home-School Materials Upheld

In Woolard v. Thurmond, (ED CA, June 10, 2024), a California federal district court rejected challenges by parents of children enrolled in home study programs through California public charter schools to the requirement that state funds be used only for secular instructional materials. Parents contended that refusing to fund faith-based curricular materials denied families equal access to state benefits solely because of their religious nature.  The court disagreed, saying in part:

The state action of failing to provide requested religious curriculum is not an infringement on Plaintiffs’ freedom of exercise.  As confirmed in Plaintiffs’ own cited case, Carson v. Makin, states are allowed to provide a strictly secular education in its public schools....  A strictly secular education does not substantially burden the Plaintiffs’ practice of religion....

This case involves California’s laws and regulations for state funded public schools, not private schools.  There are no “public benefits” in the form of grants or otherwise that the state is excluding Plaintiffs from....

Catholic Bishops Sue EEOC Over Rules Implementing Pregnant Workers Fairness Act

Suit was filed last month in a Louisiana federal district court by the U.S. Conference of Catholic Bishops, Catholic University of America and two Louisiana Catholic dioceses challenging rules adopted in April of this year by the Equal Employment Opportunity Commission implementing the Pregnant Workers Fairness Act.  The Act requires employers to provide reasonable accommodation for employees in connection with pregnancy, childbirth or related medical conditions. At issue in the recent lawsuit is the EEOC's inclusion of abortion as a related medical condition. The complaint (full text) in United States Conference of Catholic Bishops v. Equal Employment Opportunity Commission, (WD LA, filed 5/22/2024) alleges in part:

The PWFA is not an abortion accommodation mandate. Rather, it fills a gap in federal employment law by ensuring pregnant women receive workplace accommodations to protect their pregnancies and their preborn children. Plaintiff United States Conference of Catholic Bishops (USCCB) enthusiastically supported the law’s bipartisan passage. That support reflected the PWFA’s uncontroversial and laudable purpose, which is fully consistent with the Catholic Church’s belief that all human life is imbued with innate dignity and its goal of ensuring a fairer workplace for women. But EEOC has now shoehorned a mandate that employers across the country knowingly support abortion into a statute explicitly designed to protect the health and safety of preborn babies and their mothers.  

Worse, at the same time that it expands federal law into fraught areas, EEOC also insists on nullifying the explicit religious exemption that Congress wrote into the PWFA. In the PWFA, Congress imported Title VII’s religious exemption, which expressly allows employers to make employment decisions based on sincere religious beliefs. See 42 U.S.C. § 2000gg-5(b). Of course, since the PWFA concerns only pregnancy in the workplace, this makes clear that Congress meant to allow religious exemptions from pregnancy-accommodation claims. Yet now EEOC claims the exemption bars only religious discrimination claims—which aren’t authorized by the PWFA in the first place. That renders the exception a nullity, protecting employers from PWFA claims that don’t exist.

National Review yesterday reported on the lawsuit.

Texas Must Pay FFRF $346K Attorneys' Fees by August 5

 Freedom From Religion Foundation, Inc. v. Abbott, (WD TX, June 5, 2024), is an opinion and order requiring the state of Texas to pay Freedom From Religion Foundation an award of attorneys' fees and costs totaling $346,500 that had been entered against the state in January 2024.  The award grew out of long-running litigation challenging the state's action in 2015 removing from the state Capitol building FFRF's Bill of Rights Nativity display. (See prior posting.) Texas contended that under state law, the judgment against it could only be paid through an appropriation from the state legislature which would come on September 1, 2025, at the earliest. The court said in part:

The Court finds that it is empowered to compel execution of the judgment. Given that Defendants maintain that they lack the ability to disburse these funds prior to the end of next year, it appears to the Court that “an order directing the responsible state official to satisfy the judgment out of state funds is the only reasonable way to ensure compliance with a valid federal judgment.”... While the Court acknowledges that execution of the judgment is a drastic step, the Court believes that this step is warranted to ensure that FFRF timely recovers for Defendants’ federal civil rights violation. Texas “may not successfully hide behind state procedural shields to avoid the consequences of a valid district court judgment effectuating an appropriate § 1988 award.” 

The court ordered this payment to be made by August 5, 2024. It also allowed FFRF to recover for attorneys' fees and costs incurred in enforcing payment of the prior award.

Recent Articles of Interest

 From SSRN:

• Stephen E. Sachs, Good and Evil in the American Founding: The 2023 Vaughan Lecture on America's Founding Principles, (Harvard Journal of Law and Public Policy, Forthcoming).
• Jonathan Crowe, Natural Law with and without God, ((2024) 4 Australian Journal of Law and Religion 17).
• Jamie R. Abrams & Amanda Potts, The Rhetoric of Abortion in Amicus Briefs, (June 03, 2024).
• Brannon P. Denning, Privacy and Autonomy Post-Dobbs, (May 05, 2023).
• Kerry L. Macintosh, Dobbs, Abortion Laws, and in Vitro Fertilization, (Journal of Health Care Law & Policy, Vol. 26, No. 1, 2023).
• Scott Altman, Discrimination-Free Zones and Free-to-Discriminate Zones: Where Should Discrimination Laws Apply?, (May 31, 2024).
• Celia Parry, Strange Bedfellows: Guardians for Fetuses and Future Generations, (May 31, 2024).

From SSRN (Non-U.S. Law):

• Clark B. Lombardi, Islam and Constitutional Law: Insights for the Emerging Field of Buddhist Constitutional Law, (Chapter 19, Buddhism and Comparative Constitutional Law (Tom Ginsburg & Benjamin Schonthal, eds, 2022).
• Rohan Mehrotra, Hindu Legal Traditions and Conceptions of State Mechanisms and their impact on the Modern Indian Constitutionalism, (Kanpur Philosophers Journal, Vol. 10, Issue. 1, (June 2023), pp. 165-169).
• M. Mohsin Alam Bhat, Constitutional Citizenship in India: Contours and Contradictions, (The Cambridge Companion to the Constitution of India (2024)).
• Shamila Dawood, Married Women Property Rights under Muslim Marriage and Divorce Act of Sri Lanka: A Critical Analysis, ATSK Journal of Law, Volume 1, Issue 1, Article 4, 33-41 (2024).

From SmartCILP:

• Symposium on "The Racial Muslim: When Racism Quashes Religious Freedom", 50 UC Law Constitutional Quarterly, Issue 2 (2023).
• Jonathan C. Augustine, And Who Is My Neighbor?: A Faith-Based Argument for Immigration Policy Reform in Welcoming Undocumented Refugees, 66 Howard Law Journal 439-474 (2023).
• Justin Collings & Anna Bryner, Defining Religion and Accommodating Religious Exercise, 99 Indiana Law Journal 515-562 (2024).

5th Circuit Stays Contempt Order Requiring 3 Attorneys Take Religious Liberty Training

In Carter v. Local 556, Transport Workers Union of America, (5th Cir., June 7, 2024), the U.S. 5th Circuit Court of Appeals granted a stay pending appeal of a controversial contempt sanction imposed by a Texas federal district court against three attorneys for Southwest Airlines. (See prior posting.) Southwest had failed to adequately comply with a remedial Order imposed on it for firing a flight attendant because of her social media posts and private messaging featuring aborted fetuses to illustrate her religious objections to abortion.  The district court, among other things, ordered that the attorneys responsible for non-compliance with the prior Order attend at least 8 hours of religious liberty training conducted by the Christian legal non-profit Alliance Defending Freedom. In staying the contempt sanction, the Court of Appeals said in part:

[T]here is a strong likelihood that the contempt order exceeded the district court’s civil contempt authority....

Civil contempt sanctions are “remedial” and “designed to compel future compliance with a court order” by either “coerc[ing] the defendant into compliance with the court’s order” or “compensat[ing] the complainant for losses sustained” as a result of the noncompliance.... Criminal contempt sanctions, by contrast, are used to “punish defiance of the court and deter similar actions.”... Generally, “criminal [contempt] penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings.”...

At bottom, it appears that the district court sought, at least in part, to punish Southwest for what the district court viewed as conduct flouting its holding that Southwest had violated Title VII. But its punitive sanctions likely exceed the scope of the court’s civil-contempt authority.

Law dork reports on the decision.

New Report on Cultural Issues and the 2024 Election

The Pew Research Center yesterday published the results of an extensive survey on Cultural Issues and the 2024 Election. The 80-page report (full text) deals with attitudes on various topics, including religious values, sexual orientation and gender identity, and issues of family and reproductive rights. The Report says in part:

Voters who support Joe Biden and Donald Trump have starkly different views of the role religion should play in the U.S. government and politics. 

Across several measures, Trump supporters are much more likely than Biden supporters to favor an expansive government role in support of religion. Biden and Trump supporters differ on government support for religion and the Bible’s influence on the nation’s laws.

At the same time, larger shares of Trump supporters than Biden supporters also say religion – and particularly the Bible – should have influence on government policy....

 A majority of Trump supporters (56%) say religion should be kept separate from government policy, while 43% say government policies should support religious values. By more than six-to one (86% vs. 13%), Biden supporters say religion should be kept separate from government. 

These views differ by race and ethnicity and – especially among Trump supporters – by religious affiliation.

Russian Court Places Pro-Putin Witch in Pre-Trial Detention

The English language Moscow Times reports on a hearing held in a Russian court this week, saying in part:

A Moscow court on Thursday remanded the self-proclaimed witch Alyona Polyn, known for casting spells in support of President Vladimir Putin, shortly after she collapsed in court, state media reported.

Polyn, whose real name is Yelena Sulikova, was detained in the Moscow region earlier this week on charges of disseminating “extremist” literature and “insulting believers’ religious feelings.”

She is accused of sharing reading materials that call for “violence against the Russian Orthodox Church clergy” and posting videos online that insult people of faith....

 Polyn received medical attention but was not hospitalized. The court later ruled to place her in pre-trial detention, TASS reported....

UCLA Students Sue University For Failing to Protect Jewish Students

Three Jewish students at UCLA yesterday filed a civil rights lawsuit in a California federal district court alleging that the University, by tolerating widespread antisemitic behavior, has violated a lengthy list of state and federal statutory and constitutional provisions.  The complaint (full text) alleges in part:

1.  The University of California, Los Angeles ..., has deteriorated into a hotbed of antisemitism. This rampant anti-Jewish environment burst into view on October 8, 2023, the day after Hamas terrorists attacked Israel....

2. In the wake of these horrifying events, UCLA should have taken steps to ensure that its Jewish students were safe and protected from harassment and undeterred in obtaining full access to campus facilities. Instead, UCLA officials routinely turned their backs on Jewish students, aiding and abetting a culture that has allowed calls for the annihilation of the Jewish people, Nazi symbolism, and religious slurs to go unchecked....

4. Starting on April 25, 2024, and continuing until May 2, 2024, UCLA allowed a group of activists to set up barricades in the center of campus and establish an encampment that blocked access to critical educational infrastructure on campus....

6. With the knowledge and acquiescence of UCLA officials, the activists enforced what was effectively a “Jew Exclusion Zone,” segregating Jewish students and preventing them from accessing the heart of campus, including classroom buildings and the main undergraduate library....

11. Yet even as the activists continued to enforce the Jew Exclusion Zone, Defendants not only failed to marshal resources to intervene— they adopted a policy facilitating the Jew Exclusion Zone.....

19. The administration’s cowardly abdication of its duty to ensure unfettered access to UCLA’s educational opportunities and to protect the Jewish community is not only immoral—it is illegal.  

20. Specifically, it violates numerous federal and state constitutional guarantees, including the Equal Protection Clause, the Free Exercise Clause, and the freedom of speech.  

21. And it contravenes the basic guarantee of equal access to educational facilities that receive federal funding, as well as numerous other statutory guarantees of equality and fair treatment.

Fox 11 reports on the lawsuit. Becket Fund issued a press release announcing the filing of the suit.

 

Catholic Preschools Must Be Able to Conditionally Participate in Colorado Universal Preschool Program

In St. Mary Catholic Parish in Littleton v. Roy, (D CO, June 4, 2024), a Colorado federal district court in a 101-page opinion, held that Colorado cannot exclude from its Universal Preschool Program two Catholic schools that will not enroll LGBTQ children or children from LGBTQ families so long as the state continues to improperly grant an exemption from religious anti-discrimination requirements to faith-based pre-schools that limit their enrollment to members of their own congregations. The court said in part:

Defendants have established a compelling interest in denying an exemption from the sexual-orientation and gender-identity aspects of the equal-opportunity requirement for Plaintiff Preschools specifically....

In sharp contrast to the evidence Defendants presented to establish a compelling interest with respect to the sexual-orientation and gender-identity aspects of the equal-opportunity requirement, Defendants did not offer any evidence relating to discrimination on the basis of religious affiliation....

Defendants enable faith-based providers to effectively discriminate on the basis of religious affiliation in their admission of preschoolers but, at the same time, deny Plaintiff Preschools an explicit exemption from the related aspect of the equal-opportunity requirement. Defendants have provided no compelling interest for their course of conduct....

The application by Defendants ... acting in their official capacities on behalf of the Colorado Department of Early Childhood, of the religious affiliation aspect of the equal-opportunity requirement...violates Plaintiffs’ rights secured by the Free Exercise Clause of the First Amendment to the U.S. Constitution....

The Court immediately and permanently enjoins Defendants ... from requiring, as a condition for participation in the Colorado Universal Preschool Program, that the preschools operated by Plaintiffs St. Mary Catholic Parish ... and St. Bernadette Catholic Parish... agree to provide or provide eligible children an equal opportunity to enroll and receive preschool services regardless of religious affiliation for as long as Defendants allow exceptions from the religious affiliation aspect of the equal-opportunity requirement set out in Colorado Revised Statute § 26.5-4-205(2)(b) and in the Colorado Universal Preschool Program Service Agreement.

Becket Fund issued a press release announcing the decision. 

Louisiana Governor Signs Women's Safety and Protection Act, Rejecting Gender Identity Classifications

On June 3, Louisiana Governor Jeff Landry signed HB 608, the Women's Safety and Protection Act (full text) into law. The law states as part of its purpose:

To provide protections for women and girls against sexual assault, harassment, and violence in correctional facilities, juvenile detention facilities, domestic violence shelters, dormitories, and restrooms, or where women have been traditionally afforded safety and protection from acts of abuse committed by biological men.

Where there are multi-occupancy restrooms, changing rooms or sleeping quarters, the new law requires transgender men and transgender women to use only those facilities that conform to their biological sex. The limitation applies to public schools, domestic violence shelters, correctional facilities and juvenile detention facilities. The new law also provides a detailed biological definition of male and female that is to be applied to any state law or administrative rule that refers to an individual's sex. It additionally provides:

"Sex" means an individual's biological sex, either male or female, as observed or clinically verified at birth.  Gender identity and other subjective terms shall not apply to this Part and shall not be used as synonyms or substitutes for sex.

The new law goes on to provide in part:

Notwithstanding any other provision of law to the contrary, no governmental agency ... shall prohibit distinctions between the sexes with respect to athletics, correctional facilities, juvenile detention facilities, domestic violence shelters, or other accommodation where biology, safety, or privacy are implicated and that result in separate accommodations that are substantially related to the important government interest of protecting the health, safety, and privacy of individuals in such circumstances.

The law creates a cause of action for injunctive relief or damages to anyone who suffers direct or indirect harm from a violation of the Act. It provides:

It is a rebuttable presumption that requiring an individual to be housed with members of the opposite sex at a domestic violence shelter, juvenile detention center, corrections facility, or public school that is subject to the provisions of this Part is inherently discriminatory and is a cognizable harm to biological women under this Part.

Louisiana Illuminator has more details on the bill. ADF issued a press release announcing the governor's signing of the bill.

Ohio AG Sues to Prevent Reform Rabbinical College from Dismantling Its Valuable Library Collection

Ohio's Attorney General filed suit this week in an Ohio trial court seeking a temporary restraining order and an injunction to prevent Hebrew Union College in Cincinnati from selling off any of its valuable library collection of Judaica which the college was exploring the possibility of doing in order to deal with a crippling financial deficit.  The complaint (full text) in State of Ohio ex rel. Yost v. Hebrew Union College- Jewish Institute of Religion, (OH Com. Pl., filed 6/3/2024) alleges in part that the college is violating Ohio law by soliciting contributions from donors without disclosing that it is exploring the sale of parts of the Klau Library collection. It also alleges breach of fiduciary duty in administering charitable assets according to the donors' intent and alleges in part:

By the acts, omissions, and imminent acts identified in this Complaint, Defendant has breached and/or is breaching its fiduciary duties to collect, preserve, and share the Cincinnati Library collection for the charitable benefit of the public, including the Greater Cincinnati community.

Attorney General Dave Yost issued a press release announcing the filing of the lawsuit. According to the Cincinnati Enquirer:

Following Yost's move Tuesday, HUC spokeswoman Patricia Keim said the college has made no plans to sell books or close the library. "We have retained a rare books expert to assess our holdings," she said. "We remain committed to responsible management of the Klau Library and its critical role in the study of Judaism, Jewish history, and Jewish civilization."

Neo-Nazi Sentenced for Defacing Michigan Synagogue

 In a press release, the Department of Justice announced yesterday:

A Michigan man was sentenced today to 26 months in prison followed by three years of supervised release for conspiring with other members of a white supremacist group, The Base, to victimize Black and Jewish people, and for defacing Temple Jacob, a Jewish synagogue in Hancock, Michigan, using swastikas and symbols associated with The Base....

The evidence at trial established that, in September 2019, Weeden, Tobin and Barasneh, all members of The Base, used an encrypted messaging platform to discuss vandalizing property associated with Black and Jewish Americans. Weeden and his co-conspirators dubbed their plan, "Operation Kristallnacht” — a term that means "Night of Broken Glass,” and refers to events that took place on Nov. 9 and 10, 1938, when Nazis murdered Jews and burned and destroyed their homes, synagogues, schools and places of business. Weeden carried out this plan on Sept. 21, 2019, when he spray-painted swastikas and symbols associated with The Base on the outside walls of Temple Jacob....

Suit Challenges Vermont Foster Care Rules on Sexual Orientation and Gender Identity

Suit was filed yesterday in a Vermont federal district court by two couples challenging a policy adopted by the state foster care agency relating to sexual orientation, gender identity/ expression (SOGIE). Plaintiffs allege that the policy is inconsistent with their Christian religious beliefs. The complaint (full text) in Wuoti v. Winters, (D VT, filed 6/4/2024) alleges in part:

According to the Department, to meet the “needs of each foster child” under Rule 301 (emphasized), all parents must demonstrate that they can support any hypothetical child’s SOGIE....

All foster families must show that they will unconditionally support and affirm a child’s desire to dress, cut their hair, or wear accessories to express their stated gender identity,,,,

Plaintiffs allege that as applied the policy violates their 1st Amendment free speech rights:

... [T]he Department’s Mandate requires applicants to agree to speak certain words, like inaccurate pronouns, and to engage in certain expressive activities, like pride parades, that express the Department’s preferred views on human sexuality, as a condition for accessing child-welfare services. 

... [T]he Department’s Mandate forbids applicants from expressing certain views, like the Plaintiffs’ religious views on human sexuality, and engaging in certain expressive activities, like attending church, as a condition for accessing child-welfare services....

They also allege that the policy violates their 1st Amendment religious free exercise rights:

... The Wuotis and the Gantts have certain sincerely held religious beliefs about the human body and human sexuality, and they are also religiously motivated to provide foster care and adoption. 

... The Department’s SOGIE Mandate conditions Plaintiffs’ ability to obtain a foster-care license on their willingness to speak and act contrary to these religious beliefs.

The complaint also alleges due process and equal protection claims. ADF issued a press release announcing the filing of the lawsuit. 

GAO Says DEA Should Improve Its Process for Granting Religious Exemptions for Psilocybin Use

Last Week, the Government Accountability Office (GAO) released an 80-page Report to Congressional Committees (full text) titled DEA Should Improve its Religious Exemptions Petition Process for Psilocybin (Mushrooms) and Other Controlled Substances. The Report says in part:

Selected stakeholders reported several barriers to the legal access and use of psilocybin for religious practices under the Religious Freedom Restoration Act. For example, DEA established a process for parties to petition for a religious exemption from the Controlled Substances Act to use controlled substances for religious purposes. However, DEA’s guidance does not inform petitioners on its timeframes to make determinations on completed petitions. DEA officials stated the agency is aware of public concerns on the need to better understand its policies and processes that impact the petitions for religious exemptions. In 2019, DEA initiated a draft notice of proposed rulemaking related to its process for petitioning for religious exemptions. Four years later, in February 2023, the final draft notice was submitted to DEA’s Office of the Administrator, according to DEA officials; but there is no timeframe for issuance of the notice or final regulations....

Including timeframes to make determinations about religious exemption petitions in DEA’s guidance will provide better transparency about the agency’s process.

Filter has additional details.

Oklahoma Legislature Enacts Bill Requiring Schools to Offer Released Time for Credit Courses in Religious or Moral Instruction

Last week the Oklahoma legislature passed and sent to Governor Kevin Stitt for his signature HB 1425 (full text) which requires every school district board to adopt a policy that allows students to attend a released-time course in religious or moral instruction for up to three class periods per week. The course is to be taught by an independent entity off of school property. The school district is to award students credit for the released-time course after the course is evaluated using secular criteria set out in the new law.

According to KRMG News, before the Governor announced whether or not he would sign the bill, The Satanic Temple issued a statement saying that if the bill becomes law, it will offer a released-time course through its Hellion Academy of Released Time Learning. The Satanic Temple said in part that it "believes that public schools should be free from religious influence, [but is] ... prepared to ensure our members’ children receive the same opportunities as those participating in other religion’s programs."

Alabama Supreme Court Refuses to Order United Methodist Conference to Allow Church Disaffiliations

In Aldersgate United Methodist Church of Montgomery v. Alabama- West Florida Conference of the United Methodist Church, Inc., (AL Sup. Ct., May 31, 2024), the Alabama Supreme Court, in a per curiam opinion, applied the ecclesiastical abstention doctrine and dismissed a challenge by 44 Methodist congregations to a refusal by their parent Conference to allow the congregations to disaffiliate and retain their property. A few months before the congregations sought to disaffiliate, the Conference had changed its rules to provide that a member church could disaffiliate only after the Conference approved an eligibility statement that set out the reasons of conscience that led to the congregation's request. Prior to that, under a policy that was to expire at the end of 2023, congregations could disaffiliate and retain their property merely if they disagreed with the Chruch's policy on same-sex marriage and homosexuality. In affirming the dismissal of the case, the court said in part:

In order to grant the churches the relief they seek -- the right to vote on disaffiliation -- the trial court would have to survey the Judicial Council's ecclesiastical decisions, interpret the doctrinal scope of ¶ 2553 of the Book of Discipline, and review Conference determinations about the religious adequacy of the churches' eligibility statements.  That is, to decide any property questions, the trial court would have to adjudicate whether each of the churches had adequate "reasons of conscience...."  Resolving those issues would "inherently entail inquiry … into the substantive criteria by which [courts] are supposedly to decide the ecclesiastical question" -- whether the churches' reasons of conscience were sufficient for disaffiliation under ¶ 2553....   "But [that] is exactly the inquiry that the First Amendment prohibits."

Justice Bryan filed an opinion concurring specially which Justice Mitchell joined. Justice Cook filed an opinion concurring specially which Chief Justice Parker joined. Both opinions expressed sympathy with the churches' claim that the last-minute change in rules was engineered to prevent them from disaffiliating. Justice Mundheim filed an opinion concurring in the result, but not in the reasoning of the main opinion. Justice Sellers concurred in the result without filing a separate opinion. Justices Shaw, White and Stewart recused themselves.

Recent Articles of Interest

From SSRN:

• Muthoifin Muthoifin & Dimas Adi Saputra, Early Marriage in Islam and its Implementation in Indonesia, (May 27, 2024).
• David E. Guinn, Negotiating Peace in Ethno-Religious Infused Conflict: Applying Religiously Informed Socio-Secular Analysis to the Israeli-Palestinian Conflict, (May 16, 2024).
• Robert W. Gomulkiewicz, Separated by a Door Not a Wall: Replacing a Powerful Establishment Clause Metaphor, (University of Pennsylvania Journal of Constitutional Law, Forthcoming vol. 27 (2025)).
• Clark B. Lombardi, Reynolds Revisited: The Original Meaning of Reynolds v. United States and Free Exercise after Fulton, 75 Ala. L. Rev. 1009 (2024).
• Christopher C. Lund, Church Autonomy in the United States, (in Freedom of Religion and Religious Pluralism (Md Jahid Hossain Bhuiyan & Carla M. Zoethout, eds., Brill, 2023).
• Michael Lewyn, Intentional Discrimination and Haredi Jews, (51 Real Estate L.J. 25 (2022)).
• Holning Lau, Decriminalizing Same-Sex Sexual Activity: Jurisprudence from the Global South, (International Journal of Constitutional Law, Vol. 22 (2024 forthcoming)).
• An Qi Tan, The Impact of Charitable Giving on Financial Wellbeing: Aligning Values with Financial Security (May 28, 2024).
• S. Ernie Walton & Eric A. DeGroff, Brief as Amici Curiae in Support of Petitioners in John and Jane Parents 1 v. Montgomery County Bd. of Educ., (January 24, 2024).

From SSRN (Islamic Law):

• Fatima Idrees, Concept of Mal and Ownership: Comparison in Positive Law and Shariah Law (April 25, 2024).
• Fatima Idrees, Islamic Perspective: Terrorism and Human Rights (April 25, 2024).
• Fatima Idrees, A Comparative Analysis of the Responsibility and Limitations of an Agent in Contract Act, 1872 and Islamic Law of Contract, (April 25, 2024).
• Fatima Idrees, Charter of Madina: The First Constitutional Document, (April 25, 2024).
• Zainuddin Zainuddin, Islamic Economic Law Perspectives of Profit-Sharing Systems (Teseng) in the Cultivation of Rice Fields in Bugis-Makassar Community, South Sulawesi, Indonesia, (April 24, 2024).
• Murtala, Wazeer, Beyond Religious Divide: How the Muslim Community in Romania are Helping Refugees from Ukraine, (April 29, 2023).

From SmartCILP and elsewhere:

• Ahmed Al Rawi, Blocking Faith: How American Muslims Are Chilled through the New Anti-Muslim Statutes and the Security Agencies' Surveillance in the Era of Digital Policing, 39 Touro Law Review 1-42 (2023).
• Journal of Law and Religion, Vol. 39, Issue 1 (Jan 2024). (Open access until 6/30/2024).

Obstructing Police Clearing Abortion Clinic Demonstrators Not Protected as Free Exercise

In People of the State of Michigan v. Connolly, (MI App., May 30, 2024), a Michigan state appellate court upheld convictions of four anti-abortion activists. Defendants had conducted a "red rose" rescue-- entering an abortion clinic, handing each client in the waiting room a rose and attempting to convince them not to proceed with abortions. When ordered by police to leave, defendants instead fell limp to the floor, and officers had to carry them out of the building. Defendants were convicted of resisting or obstructing a police officer, trespass and disturbing the peace. Defendants contended in part that the obstructing police conviction violated their First Amendment rights to the Free Exercise of religion because their actions were motivated by their Catholic faith. The court responded:

Defendants do not dispute that MCL 750.81d(1) is facially neutral because it does not refer to religion in any manner.  However, “[f]acial neutrality is not determinative.”... While a law plainly targeting a religion obviously is not neutral, “if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law [also] is not neutral[.]” ...

...  The language of MCL 750.81d is facially neutral, and defendants have not identified any possible legislative intent directed at individuals who practice Catholicism, or even those who oppose abortion on religious grounds.  Indeed, even a brief review of recent caselaw from this Court reveals MCL 750.81d is regularly used to prosecute individuals for reasons completely unrelated to religious beliefs.

The court also rejected vagueness and equal protection defenses.

Texas Supreme Court Rejects Expansion of Medical Exceptions to Abortion Ban

 In State of Texas v. Zurawski, (TX Sup. Ct., May 31, 2024), the Texas Supreme Court vacated a temporary injunction entered by a state trial court which had broadened the medical exception to Texas' abortion ban. The trial court had relied on the Due Course of Law and Equal Protection clauses of the Texas Constitution. The Supreme Court said in part:

Under the Human Life Protection Act, a woman with a life-threatening physical condition and her physician have the legal authority to proceed with an abortion to save the woman’s life or major bodily function, in the exercise of reasonable medical judgment and with the woman’s informed consent. As our Court recently held, the law does not require that a woman’s death be imminent or that she first suffer physical impairment. Rather, Texas law permits a physician to address the risk that a life-threatening condition poses before a woman suffers the consequences of that risk. A physician who tells a patient, “Your life is threatened by a complication that has arisen during your pregnancy, and you may die, or there is a serious risk you will suffer substantial physical impairment unless an abortion is performed,” and in the same breath states “but the law won’t allow me to provide an abortion in these circumstances” is simply wrong in that legal assessment. 

Given this construction, we conclude that Dr. Karsan has not demonstrated that the part of the Human Life Protection Act that permits life-saving abortion is narrower than the Texas Constitution allows.

Justice Lehrmann filed a concurring opinion. Justice Busby also filed a concurring opinion which Justice Lehrmann joined.

CBS News reported on the decision.

Lifeguard Sues L.A. County Over Required Flag Raising for Pride Month

A suit was filed last week in a California federal district court by plaintiff who is employed as a lifeguard by Los Angeles County objecting to the requirement that he raise the Progress Pride Flag at his lifeguard station during June which has been designated as LGBTQ+ Pride month. The complaint (full text) in Little v. Los Angeles County Fire Department, (CD CA, filed 5/24/2024), alleges in part:

Captain Little is ... an evangelical Christian with beliefs on marriage, family, sexual behavior and identity that align with the traditional and orthodox biblical-social teachings....

... While Captain Little understands that the government can speak its own messages, and thus may promote Pride Month, he believes that he cannot personally do so by raising the Progress Pride Flag. Doing so would be to personally participate in, espouse, and promote messages contrary to his sincerely held religious beliefs, similar to how many courts have recognized that Jehovah’s Witnesses may not salute or pledge allegiance to the flag of any nation or state....

The complaint alleges that requiring him to raise the Pride Flag, refusing to provide him with a religious accommodation and taking retaliatory action against him violate Title VII of the 1964 Civil Rights Act, the California Fair Employment and Housing Law, the Free Exercise Clause of the U.S. and California Constitutions and the Free Speech clause of the U.S. Constitution.

Thomas More Society issued a press release announcing the filing of the lawsuit. Los Angeles Times has additional details.

UPDATE: According to a June 5. 2024 press release from the Thomas More Society, Los Angeles County has agreed to give plaintiff a partial accommodation by not requiring him to raise the Progress Pride Flag as part of his job for the remainder of June.

Civil Court Must Accept Disciplinary Actions by Hierarchical Church's Parent Body

In San Jose Korean Central Church v. Korean Evangelical Church of America, (CA App., May 29, 2024), a California state appellate court applied the ecclesiastical abstention doctrine, holding that a trial court was required to accept as binding internal disciplinary judgments by a church's parent body, Korean Evangelical Church of America (KECA).  At issue was an attempt by a local congregation, San Jose Korean Central Church (SJKCC) to disaffiliate from KECA. As explained by the court:

... [T]he board of SJKCC, led by its senior pastor, Francis Chung, purportedly approved new bylaws and voted to disaffiliate itself from KECA.  One week later, at a special meeting set by the board, the congregation ... approved the new bylaws and voted in favor of SJKCC’s disaffiliation from KECA.  Prior to these actions, however, KECA had issued a disciplinary judgment suspending Chung from performing his duties as an SJKCC board member.  KECA therefore contended that the purported actions taken by the SJKCC board, with Chung acting as its chairman ... were void.  As a result of Chung’s disobedience of the judgment of suspension, ... KECA entered a further disciplinary judgment revoking Chung’s SJKCCs pastorship and excommunicating him from KECA.  Shortly before that date, ... KECA entered a disciplinary judgment against two Chung allies, Ki Soo Kim, Jung Young Lee, removing their status as elders and as members of the SJKCC board....

... [I]t is plain that the May 26, 2019 judgment suspending Francis Chung—being a disciplinary action taken by the national hierarchical church, KECA, through the Judgment Committee of its Northern California District Conference—was an internal ecclesiastical decision that was not subject to review by the civil judicial system.  The rule of judicial deference to ecclesiastical matters applies not only to decisions related to matters of religious doctrine; it “also [applies to] issues of membership, clergy credentials and discipline, and church polity and administration.... The rule of deference to internal decisions of clergy discipline applies irrespective of whether the action taken was “by a procedure contrary to church law and regulations, and for improper, false and fraudulent motives.” ...

Louisiana Legislature Requires Posting of 10 Commandments in Every Public School and College Classroom

The Louisiana legislature this week gave final passage to HB71 (full text) which requires all public schools to display the Ten Commandments in each classroom. The bill specifies the Ten Commandments text which must be used-- choosing the text that appeared on the Ten Commandments marker at the Texas State Capitol that was the subject of the U.S. Supreme Court's decision in Van Orden v. Perry. The Louisiana bill requires:

The nature of the display shall be determined by each governing authority with a minimum requirement that the Ten Commandments shall be displayed on a poster or framed document that is at least eleven inches by fourteen inches.  The text of the Ten Commandments shall be the central focus of the poster or framed document and shall be printed in a large, easily readable font.

A specified "context statement" that details the appearance of the Ten Commandments in public school textbooks since 1688 must be displayed along with the Ten Commandments. It permits, but does not require, public schools to also display the Mayflower Compact, the Declaration of Independence and the Northwest Ordinance along with the Ten Commandments.

Public colleges must display the same text of the Ten Commandments (but apparently not the context statement) in each classroom on their campuses.

The bill's substantive provisions are preceded by legislative findings, including the following:

Recognizing the historical role of the Ten Commandments accords with our nation's history and faithfully reflects the understanding of the founders of our nation with respect to the necessity of civic morality to a functional self-government. History records that James Madison, the fourth President of the United States of America, stated that "(w)e have staked the whole future of our new nation . . . upon the capacity of each of ourselves to govern ourselves according to the moral principles of the Ten Commandments.

The bill now goes to Governor Jeff Landry for his signature. CNN reports on the bill.

UPDATE: On June 19, Governor Landry signed HB71, and the ACLU quickly announced that several advocacy organization would file suit to challenge the law.

2nd Circuit: Former Hindu Inmate's Challenges to Mandated Treatment Program Dismissed

 In Tripathy v. McKoy, (2d Cir., May 29, 2024), the U.S. 2nd Circuit Court of Appeals affirmed the dismissal of a suit brought against prison officials by a former inmate who contended that his rights were violated when he was forced to enroll in a specific sex offender treatment program in order to get lighter parole and registration requirements. According to the court: 

A devout Hindu, Tripathy objected to this requirement on religious grounds, arguing that he was innocent of the crimes for which he was convicted and that accepting responsibility for his crimes would require him to make a false statement, in violation of the “core” Hindu “tenet[]” against lying.

The court summarized its holdings:

We agree with the district court that Tripathy’s claim for damages under RLUIPA is barred by our precedent holding that the statute does not permit individual capacity damages; we likewise agree that his demands for injunctive and declaratory relief became moot when his state convictions were vacated and he was released from prison.  With respect to his constitutional claims brought pursuant to 42 U.S.C. § 1983, the district court properly concluded that Tripathy’s free exercise claim under the First Amendment is barred by qualified immunity, that he lacks standing to seek damages for his due process claim under the Fourteenth Amendment, and that he fails to state a claim for retaliation in violation of the First Amendment.

New Hampshire Divisive Concepts Law Is Void For Vagueness

 In Local 8027, AFT-N.H., AFL-CIO v. Edelblut, (D NH, May 28, 2024), a New Hampshire federal district court held that statutes enacted in 2021 that ban the teaching in public schools, or by employers, or in government programs of specified divisive concepts are void for vagueness. The banned concepts found in NH Revised Statutes §193.40 , §354A-31 and §354A-32, are:

(a) That one's age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion or national origin is inherently superior to people of another age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin;

(b) That an individual, by virtue of his or her age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously;

(c) That an individual should be discriminated against or receive adverse treatment solely or partly because of his or her age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin; or

(d) That people of one age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin cannot and should not attempt to treat others without regard to age, sex, gender identity, sexual orientation, race, creed, color, marital status, familial status, mental or physical disability, religion, or national origin.

The court concluded:

The Amendments are viewpoint-based restrictions on speech that do not provide either fair warning to educators of what they prohibit or sufficient standards for law enforcement to prevent arbitrary and discriminatory enforcement. Thus, the Amendments violate the Fourteenth Amendment to the U.S. Constitution.

Concord Monitor reports on the decision.

President Issues Memorial Day Prayer for Peace Proclamation

Today is Memorial Day. Last week, President Biden issued his Memorial Day 2024 Proclamation, titled A Proclamation on Prayer for Peace (full text), which says in part:

This Memorial Day, we honor the brave women and men who made the ultimate sacrifice for our Nation’s freedom.  We recommit to keeping our sacred obligation to their survivors, families, and caregivers.  Together, we vow to honor their memories by carrying on their work to forge a more perfect Union....

In honor and recognition of all of our fallen service members, the Congress, by a joint resolution approved May 11, 1950, as amended (36 U.S.C. 116), has requested that the President issue a proclamation calling on the people of the United States to observe each Memorial Day as a day of prayer for permanent peace and designating a period on that day when the people of the United States might unite in prayer and reflection.  The Congress, by Public Law 106-579, has also designated 3:00 p.m. local time on that day as a time for all Americans to observe, in their own way, the National Moment of Remembrance.

     NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, do hereby proclaim Memorial Day, May 27, 2024, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time when people might unite in prayer and reflection.  I urge the press, radio, television, and all other information media to cooperate in this observance.  I further ask all Americans to observe the National Moment of Remembrance beginning at 3:00 p.m. local time on Memorial Day.

Recent Articles of Interest

From SSRN:

• Muhammad Ali Malik, Muhammad Rashid & Muhammad Abdullah Ejaz, How Mainstream Video Games Are Unethically Targeting a Specific Religion, (May 17, 2024).
• Bernard M. Levinson, Neglected Contributions to the Study of Kingship in the Pentateuch and the Deuteronomistic History, (Pages 33–40 in The Formation of Biblical Texts: Chronicling the Legacy of Gary N. Knoppers. Edited by Deirdre N. Fulton, Kenneth A. Ristau, Jonathan S. Greer, and Margaret E. Co, (2024)).
• Melvin Otey, A Modern Reflection on Premodern Allegory, (Studies of Biblical Interest | Vol. 1, No. 1 (2023)).
• Ashish Khanna, Conversion and Hindu Law: Addressing the Societal Impact and Matrimonial Conflict at Play, (April 13, 2024).
• Paulino Faque Moisés, What Are the Differences Between Takleefiyyah and Wad’iyyah, (May 23, 2024).
• Ashley McWilliam, Critical Abortion Theory, (24 J.L. Soc'y 57 (2024)).

8th Circuit Reverses Dismissal of Suit for Failure to Accommodate Religious Objections to Vaccine Mandate

In Ringhofer v. Mayo Clinic, Ambulance, (8th Cir., May 24, 2024), the U.S. 8th Circuit Court of Appeals reversed a Minnesota federal district court's dismissal of suits by Mayo Clinic employees who sought accommodations because their employer's Covid vaccine mandate violated their religious beliefs. The court concluded that two of the employees did properly exhaust their administrative remedies under Title VII. It also found that all the employees had adequately pleaded a conflict between their Christian religious beliefs and the vaccine mandate. Finally, it concluded that the Minnesota Human Rights Act provides a cause of action for failure to accommodate religious beliefs.

Louisiana Legislature Bans Fraudulently Giving Women Abortion Pills; Reclassifies Abortion Pills as Dangerous Drugs

The Louisiana legislature yesterday gave final passage to Senate Bill 276 (full text). The bill creates the crime of "coerced criminal abortion by means of fraud", defined as "knowingly and intentionally engag[ing] in the use of an abortion-inducing drug on a pregnant woman, without her knowledge or consent, with the intent to cause an abortion."  The bill also categorizes the abortion drugs Mifepristone and Misoprostol as Schedule IV controlled substances which it is illegal to possess except pursuant to a valid prescription. It goes on to provide, however, that it is not a violation for a woman to possess these drugs for her own consumption.

AP reports on the bill in greater detail and explains:

[The bill's sponsor, Sen. Thomas] Pressly said both the bill and the amendment were motivated by what happened to his sister Catherine Herring of Texas. In 2022, Herring’s husband slipped her seven misoprostol pills in an effort to induce an abortion without her knowledge or consent.

The bill now goes to Governor Jeff Landry who is expected to sign the bill.

President Extends Warm Wishes To Buddhists Celebrating Vesak

The White House today issued a Statement by President Biden (full text) extending warm wishes from him and the First Lady to Buddhists in the United States and around the world celebrating Vesak. the Statement says in part:

As we honor the birth, passing, and enlightenment of Buddha, we recognize the American Buddhists who contribute so much to our communities and our country. For over 2,500 years, those who adhere to the Buddha’s teachings have enriched and strengthened this world we share. Vesak is a time to reflect on the Buddha’s teachings, including the need to work for peace and justice, and cultivate humility and compassion as we work together towards a brighter future.

Secretary of State Anthony Blinken also issued a statement (full text) recognizing the day. 

A posting on the United Nations website explains the holiday in more detail, saying in part:

"Vesak", the Day of the Full Moon in the month of May, is the most sacred day to millions of Buddhists around the world. It was on the Day of Vesak two and a half millennia ago, in the year 623 B.C., that the Buddha was born. It was also on the Day of Vesak that the Buddha attained enlightenment, and it was on the Day of Vesak that the Buddha in his eightieth year passed away.

Churches' Challenges To Day Care Licensing Dismissed

In Foothills Christian Ministries v. Johnson, (SD CA, May 20, 2024), a California federal district court dismissed challenges by three churches to the California Child Day Care Facilities Act. The churches wish to open day cares but object to the requirement that they obtain a license to do so. The opinion relates to plaintiffs' First Amended Complaint after a prior dismissal. (See prior posting.) The court said in part:

... [I]ndignation is not injury and Plaintiffs have provided no further grounds for standing to challenge the licensure requirement itself beyond that they do not want a preschool that operates at the pleasure of DSS through the State’s licensing scheme...

The court also dismissed claims relating to removal of a preschool director and actions against it for refusing to comply with a past masking mandate over the objection of parents to the mandate. Plaintiffs' Establishment Clause, free speech and due process claims were dismissed without prejudice.

Ban of Bus Ads on Controversial Issues Violates Constitution

In WallBuilder Presentations v. Clarke, (D DC, May 21, 2024), a D.C. federal district court granted a preliminary injunction barring enforcement of a Guideline of the Washington Metropolitan Transit Authority which bars bus ads that are "intended to influence members of the public regarding an issue on which there are varying opinions...." Plaintiffs submitted two ads that promoted the idea that the nation's founders were Christians. The court said in part:

... [N]othing in Guideline 9’s text answers basic questions about its reach, and the “indeterminate scope” of Guideline 9 is not “clarif[ied]” or “saved” by any official guidance..... Enforcement of Guideline 9 is thus left to individual reviewers to determine, on a....case-by-case basis, what constitutes an “[a]dvertisement intended to influence” and what constitutes “an issue on which there are varying opinions.”  Such determinations “require[] a government decision-maker to maintain a mental index” of all the issues on which varying opinions exist—which, in turn, requires the decisionmaker to know not only the issues on which opinions differ, but also the precise degree to which opinions differ—an enterprise that the D.C. Circuit has said is “not reasonable.”....   

This Court thus joins the many courts that have rejected similar phrases as constitutionally suspect.... Without objective, workable standards in Guideline 9’s text or accompanying official guidance, reviewers’ “own politics may shape [their] views on what counts” as “an issue on which there are varying opinions,” and the risk of “unfair or inconsistent enforcement,” and even “abuse” is “self-evident.”  ....

However, relying on Circuit Court precedent, the court refused to enjoin enforcement of Guideline 12 that  prohibits advertisements that promote or oppose any religion, religious practice or belief.

ACLU issued a press release announcing the decision.

Texas School Sues Over New Title IX Rules on Sex Discrimination

Suit was filed this week in a Texas federal district court challenging the Biden administration's new rules under Title IX on sex discrimination by educational programs receiving federal financial assistance. Among other things, the new rules provide that sex discrimination includes discrimination on the basis of sexual orientation or gender identity.  The complaint (full text) in Carroll Independent School District v. U.S. Department of Education, (ND TX, filed 5/21/2024), alleges in part:

7.... This bureaucratic fiat prevents Carroll ISD from protecting private spaces like bathrooms, locker rooms, and showers for both girls and boys, opens girls’ sports to males, and infringes on the constitutional rights of students and staff.  

8. The administrative rewrite achieves the exact opposite of Title IX’s goal to promote equal opportunity for women. For fifty years, “sex” has meant the biological binary—differences between male and female. Respecting these biological differences is essential to achieving that goal—and Title IX recognizes as much. But now the Biden administration’s regulations will require schools to ignore sex to promote a person’s subjective “sense” of their gender.  

9. Schools must do so even though it deprives their female students of the equal opportunities in education that Title IX promised.

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

New York's Top Court Says That Religious Employer Exemption from Abortion Coverage Mandate Is Not Too Narrow

In Roman Catholic Diocese of Albany v Vullo, (NY Ct. App., May 21, 2024), New York's highest appellate court rejected a claim that the "religious employer" exemption to the state's requirement that health insurance policies cover medically necessary abortion services is too narrow.  The exemption is available only to an employer that meets 4 criteria-- it is a non-profit organization whose purpose is the inculcation of religious values and it primarily employs and serves persons who share the entity's religious tenets. Plaintiffs, which are religiously affiliated entities, contend that their free exercise rights are infringed because they do not meet the criteria for the exemption, The court said in part:

... [B]oth the regulation itself and the criteria delineating a "religious employer" for the purposes of the exemption are generally applicable and do not violate the Free Exercise Clause. Neither the existence of the exemption in the regulation nor the defined criteria allow for "individualized exemptions" that are standardless and discretionary, nor do they allow for comparable secular conduct while discriminating against religious conduct.

Reuters reports on the decision.

Medicaid Limit on Reimbursing for Family Care Did Not Violate Muslim Family's Free Exercise Rights

In Alsyrawan v. Department of Human Services, (PA Commonwealth Ct., May 20, 2024), a Pennsylvania state appellate court held that Medicaid rules limiting reimbursement of family members providing in-home and companion services to a total of 60 hours per week did not violate a Muslim family's rights under Pennsylvania's Religious Freedom Protection Act. The Medicaid recipient was a non-verbal adult male with Down syndrome and several other disabilities who was being cared for by his mother and sister. According to the court:

... [The] family, including Petitioner, follows Islamic law set forth in the Quran, which forbids ... unrelated males and females from being alone together, and unrelated males from providing personal care involving nudity or exposed private areas....  Therefore, to protect Petitioner from sin, only Mother, Sister, or other closely related female relatives may be alone with Petitioner, and only a father, brother, uncle, or grandfather could provide his more intimate bathroom and shower care....  Mother added that the prohibition of unrelated males and females being alone together likewise prohibits her from being alone with an unrelated male caretaker while he is tending to Petitioner....

... Petitioner also asserts that the Department’s refusal to grant him an exception to the 40/60 Rule violates the RFPA, where he has shown by clear and convincing evidence that placement of an unrelated caregiver in his home would burden his and his family’s religious exercise, and the Department cannot show that its denial of an exception is the least burdensome way to serve a compelling interest....

... [S]substantial record evidence supports that Islamic law allows an unrelated, non-Islamic male aide to assist Petitioner outside Mother’s presence (i.e., either outside the home or when Mother leaves the home to attend to personal business), before and after which Mother could provide Petitioner’s necessary intimate personal care.... 

... Because Petitioner has not shown by clear and convincing evidence that the 40/60 Rule “[s]ignificantly constrains or inhibits conduct or expression mandated by [his] sincerely held religious beliefs[,]” “[s]ignificantly curtails [his] ability to express adherence to [his] faith[,]” “[d]en[ies] [him] reasonable opportunity to engage in activities . . . fundamental to [his] religion[,]” nor “[c]ompels conduct or expression which violates a specific tenet of [his] religious faith[,]” 71 P.S. § 2403, he has failed to meet his initial burden of proving that the application of the 40/60 Rule substantially burdens his free exercise of religion under the Free Exercise Clause or the RFPA.

Rabbi Sues Homeowners' Association for Blocking Synagogue Construction

Suit was filed last week in a Florida federal district court by a Chabad rabbi and related plaintiffs charging a Homeowners' Association with religious discrimination in violation of state and federal Fair Housing Acts and civil rights protections. The complaint (full text) in Hertzel v. Loggers' Run, Inc., (SD FL, filed 5/17/2024), alleges in part:

This action arises out of a campaign by the HOA... to discriminate against the Hertzels and, more broadly, to slow the growth of Jews within the Loggers’ Run planned residential community..... 

The campaign began when the Hertzels began exploring the possibility of constructing a synagogue within Loggers’ Run, which they proposed locating near multiple similarly situated churches attended by HOA board members and residents. This synagogue is essential to the growth of the Orthodox Jewish community within Loggers’ Run because central tenets of that faith prohibit driving to religious services on the Sabbath and Jewish holidays. Members of the HOA Board intervened to prevent the HOA from even considering the Hertzels’ proposal.... Although the HOA would eventually muster pretextual reasons for the rejection, individual members of the HOA and its agents were shockingly honest, explaining that the HOA “didn’t want Jews” in Loggers’ Run and, more recently, that a synagogue would be constructed over then-HOA Board President Harp’s “dead body.”

First Liberty issued a press release announcing the filing of the lawsuit.

Supreme Court Denies Review of Standing Decision in Challenge to School's Policy Supporting Transgender Students

Yesterday the U.S. Supreme Court denied review in John and Jane Parents 1 v. Montgomery County Board of Education, (Docket No. 23-601, certiorari denied 5/20/2024) (Order List). In the case, the U.S. 4th Circuit Court of Appeals, in a 2-1 decision (full text of the Aug. 14, 2023 opinion) held that parents who did not allege a substantial risk of injury lacked standing to challenge school board Guidelines that allowed schools to support transgender students and to withhold information from parents about this when the family is not supportive of the student's gender transition. The district court had upheld the Guidelines. (See prior posting).  SCOTUSblog reports on the denial of certiorari.

Church Sues Town Over Zoning Objections to Temporary Shelter Ministry

Suit was filed last week in a Colorado federal district court by a non-denominational Christian church challenging a town's claim that the church's Temporary Shelter Ministry violates the town's zoning ordinance. The complaint (full text) in Church of the Rock, Inc. v. Town of Castle Rock, Colorado, (D CO, filed 5/13/2024) alleges that the church's rights under the First Amendment as well as the Religious Land Use and Institutionalized Persons Act are violated by the town's objections to the church's use of an RV and a trailer in the church's parking lot as temporary or emergency shelter for homeless families. The church also claimed unlawful retaliation by the town. Plaintiff additionally filed a Memorandum in Support of Its Motion for Preliminary Injunction (full text). First Liberty issued a press release announcing the filing of the lawsuit.

Civil Rights Commission Holds Briefing on Prisoners' Religious Freedom

Last Friday, the U.S. Commission on Civil Rights held a lengthy hearing on The Federal Role in Enforcing Religious Freedom in Prisons. A video of the full hearing is available on YouTube. In announcing the hearing, the Commission said:

The U.S. Commission on Civil Rights will hold a briefing on, Friday, May 17, 2024, on whether prisoners’ religious freedom rights are being protected and enforced in accordance with constitutional and statutory provisions. This is an update to the Commission’s 2008 statutory enforcement report, Enforcing Religious Freedom in Prison.

Specifically, the Commission will review the constitutional and federal statutory provisions of the First Amendment, the Civil Rights of Institutionalized Persons Act of 1980 (CRIPA), the Religious Freedom Restoration Act of 1990 (RFRA), the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), and the Prison Litigation Reform Act (PLRA).

At this public briefing, the Commission will hear from subject matter experts such as government officials, religious leaders, academics, prisoners’ rights advocates, religious liberty organizations, and legal experts. The Commission will accept written materials from the public for consideration as we prepare our report....

Recent Articles of Interest

From SSRN:

• Chad G. Marzen & Michael Conklin, Solar Eclipses and the Law, (May 13, 2024).
• Michele Statz, The Scandal of Particularity: A New Approach to Rural Attorney Shortages and Access to Justice, (South Dakota Law Review, Forthcoming).
• Nicole Stelle Garnett & Tim Rosenberger, Unconstitutional Religious Discrimination Runs Rampant in State Programs, (Manhattan Institute Policy Report, December 2023).
• Nicole Huberfeld, Brief for Amici Curiae Legal Scholars, Moyle v. U.S./Idaho v. U.S,. (Boston Univ. School of Law Research Paper Forthcoming).
• Stephen E. Sachs, Dobbs and the Originalists, (Harvard Journal of Law and Public Policy, Forthcoming).
• Mark Satta, The Supreme Court’s Refusal to Acknowledge Sexual-Orientation Discrimination in 303 Creative v. Elenis, (Wayne State University Law School Research Paper Forthcoming).
• Nicole Huberfeld, Confusion, Chaos, and Conflict in U.S. Law and Health Care after Dobbs, (Boston Univ. School of Law Research Paper Forthcoming).

From SSRN (Non-U.S. Law):

• Emmanuel Arthur-Ewusie, The Cross - Cultural Legitimacy of Human Rights: Can Human Rights be Relocated in Cultures different from their Origin?, (May 10, 2024).
• Emmanuel Arthur-Ewusie, Has the Non -refoulement Principle Acquired Customary Status in International Law?, (May 10, 2024).
• Csongor István Nagy, The Diagonal Application of the EU Charter of Fundamental Rights: From “Displacement” through “Agency” to “Scope” and Beyond, (German Law Journal, 2024, vol. 25, no. 2, pp. 155-184).
• Cynthia Soohoo, Turning Away From Criminal Abortion Laws and Towards Support for Pregnant People and Their Families, (104 B.U. Law Review Online 109 (2024)).
• Jean d'Aspremont, Affects, Emotions and the Cartesian Epistemology of International Law, (14 Journal of International Dispute Settlement (2023) 281–284).
• Talia Einhorn, Parenthood in Israeli Law, (Liber Amicorum Bea Verschraegen (Heindler, Huber & Schacherreiter, eds.), Manz Verlag (Wien, 2023)).

Longer Bus Routes for Parochial School Students Upheld

In Swiech v. Board of Education of the Sylvania City School District, (OH Com. Pl., March 19, 2024), an Ohio trial court dismissed a suit brought by parents of students attending a Catholic school. Plaintiffs complained that bus transportation furnished by the District to and from non-public schools involved much longer transportation times than bus service for public school students. While public school students were taken directly to school, non-public students were taken to a central transfer point and then transferred to other busses to get to their schools.  Among the court's holdings was that no Equal Protection violation was involved because the District only needed a rational basis for the differential treatment. Conservation of limited financial resources meets that test.  The court also rejected plaintiffs' Free Exercise challenge

Plaintiffs have offered no evidence of any coercive effects on their religious practice: there is no evidence that the transportation plan has compelled Plaintiffs to do anything forbidden by their religion or that it has caused them to refrain from doing something required by their religion. Plaintiffs have also not offered any evidence that the transportation plan has compelled them to affirm or disavow a belief forbidden or required by their religion.

Congressional Committee Releases Staff Report on Harvard's Response to Antisemitism on Campus

Yesterday the House Committee on Education and the Workforce released a Staff Report titled Investigative Update-- The Antisemitism Advisory Group and Harvard’s Response: Clarity and Inaction (full text). The Report's Executive Summary says in part:

On October 27, 2023, Harvard University’s then-President Claudine Gay announced the formation of an eight-member Antisemitism Advisory Group (AAG, or the Group) amidst considerable scrutiny of the University’s response to increased antisemitism on its campus following Hamas’ October 7, 2023, terrorist attack on Israel....

The Committee on Education and the Workforce investigation has found that in mid-December 2023 the AAG presented Harvard’s leaders with a robust set of significant recommendations on combating antisemitism at Harvard, which were not made public and remain unimplemented. 

These recommendations include “zero tolerance” of classroom disruptions; protecting shared learning environments; holding student organizations accountable for adhering to University rules; countering antisemitic speech; reviewing the academic rigor of classes and programs with antisemitic content; reviewing Harvard’s Office of Equity, Diversity, Inclusion, and Belonging’s (OEDIB) inadequacy in addressing antisemitism; increasing intellectual diversity; and investigating the potential influence of “dark money” from Iran, Qatar, and associates of terrorist groups on campus....

The failure to implement the AAG’s advice did not come from a lack of engagement by Harvard’s seniormost leaders.... Unfortunately, this involvement, even if well-intentioned, did not translate to taking the actions required to address the explosion of virulent antisemitism at Harvard in a meaningful way.

JNS has a lengthy report on reactions to the release of the Congressional committee staff report.

3 New USCIRF Commissioners Appointed by House Speaker Johnson

The U.S. Commission on International Religious Freedom is comprised of 9 Commissioners, 3 selected by the President, 2 selected by Congressional leaders of the President's party, and 4 selected by Congressional leaders of the other party. Commissioners are appointed for two-year terms.  Wednesday, the appointment of 3 Commissioners by Speaker of the House Mike Johnson was announced in the Congressional Record. The new Commissioners are Vicky Hartzler, Maureen Ferguson and Asif Mahmood.

Maureen Ferguson is a Senior Fellow with The Catholic Association and co-host of the radio show Conversations with Consequences. She is also on the Advisory Committee for the de Nicola Center for Ethics and Culture at the University of Notre Dame.

Asif Mahmood, who was born in Pakistan and received his medical education there, is a member of the Medical Board of California, is on the board of Hope of the Valley Rescue Mission, is on the California Democratic Party Central Committee and was an unsuccessful Democratic candidate for Congress from California in 2022. 

Vicky Hartzler, a conservative Christian, served 6 terms in Congress from Missouri before losing a bid for a Senate seat from Missouri in 2022. According to the Kansas City Star:

She rose to prominence in Missouri as face of the campaign to ban same-sex marriage in Missouri in 2004, traveling the state to support an amendment to the state’s constitution defining marriage as between a man and a woman....

[In Congress] She sponsored bills to protect Christians persecuted in China and often signed on to legislation purporting to advance religious freedom. She also continued to push back against LGBTQ rights.

CLARIFICATION UPDATE: Sec. 6431 of the International Religious Freedom Act provides:

(ii) Three members of the Commission shall be appointed by the President pro tempore of the Senate, of which two of the members shall be appointed upon the recommendation of the leader in the Senate of the political party that is not the political party of the President, and of which one of the members shall be appointed upon the recommendation of the leader in the Senate of the other political party. (iii) Three members of the Commission shall be appointed by the Speaker of the House of Representatives, of which two of the members shall be appointed upon the recommendation of the leader in the House of the political party that is not the political party of the President, and of which one of the members shall be appointed upon the recommendation of the leader in the House of the other political party.

South Carolina Legislature Passes Bill Barring Gender Transition Care for Minors and Mandating Schools Notifying Parents

The South Carolina legislature this week gave final passage to H4624 (full text) which prohibits health care professionals from providing puberty blocking drugs, cross-sex hormones or gender reassignment surgery to individuals under 18 years of age. It also bars use of public funds for gender transition procedures and provides:

(A) A nurse, counselor, teacher, principal, or other official or staff at a public school shall not knowingly: (1) encourage or coerce a minor to withhold from the minor's parent or legal guardian the fact that the minor's perception of his or her gender is inconsistent with his or her sex, as defined in Section 44-42-310; or (2) withhold from a minor's parent or legal guardian information related to the minor's perception that his or her gender is inconsistent with his or her sex, as defined in Section 44-42-310.

(B) The principal, vice principal, or counselor at a public school shall immediately notify in writing a minor's parent or legal guardian if the minor: (1) asserts to any school employee that the minor's gender is inconsistent with his or her sex, as defined in Section 44-42-310; or (2) requests a school employee to address a minor using a pronoun or title that does not align with the minor's sex.

The bill now goes to Governor Henry McMaster for his signature. The Hill reports on the passage of the bill.