Michigan Court Enjoins Abortion Restrictions Including 24-Hour Waiting Period and Consent Form

 In Northland Family Planning Center v. Nessel, (MI Ct. Cl., June 25, 2024), the Michigan Court of Claims issued a preliminary injunction against enforcement of three restrictions on abortion procedures found in Michigan law.  The enjoined provisions impose a 24-hour mandatory waiting period, require a uniform informed consent for women seeking an abortion, and bar advanced practice clinicians from performing abortions. The court held that the provisions are unconstitutional under a state constitutional amendment adopted by referendum in 2022 which grants every individual a fundamental right to reproductive freedom and provides that an "individual’s right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means." The court said in part:

... [T]he Court is convinced that the [24-hour] mandatory delay exacerbates the burdens that patients experience seeking abortion care, including by increasing costs, prolonging wait times, increasing the risk that a patient will have to disclose their decision to others, and potentially preventing a patient from having the type of abortion that they prefer....

The informed-consent provisions, read as whole, are designed to force a patient to consider the alternative of not having an abortion. The manner in which the information is presented is not neutral; it is designed to eschew abortion in favor of completing a pregnancy. This forced deliberation, through the mandatory informed-consent process, burdens and infringes upon a patient’s right to make and effectuate decisions about abortion care. The State is metaphorically putting its finger on the scale, thereby infringing upon a patient’s deliberative process.

The court however refused to enjoin provisions calling for oral counseling against coercion and providing resources to victims of domestic violence. Bridge Michigan reports on the decision.

Oklahoma Supreme Court Says Creation of Religious Charter School Is Unconstitutional

In Drummond v. Oklahoma Statewide Virtual Charter School Board, (OK Sup, Ct., June 25, 2024), the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. The court said in part:

Although a public charter school, St. Isidore is an instrument of the Catholic church, operated by the Catholic church, and will further the evangelizing mission of the Catholic church in its educational programs. The expenditure of state funds for St. Isidore's operations constitutes the use of state funds for the benefit and support of the Catholic church. It also constitutes the use of state funds for "the use, benefit, or support of . . . a sectarian institution." The St. Isidore Contract violates the plain terms of Article 2, Section 5 of the Oklahoma Constitution....

Because it is a governmental entity and a state actor, St. Isidore cannot ignore the mandates of the Establishment Clause, yet a central component of St. Isidore's educational philosophy is to establish and operate the school as a Catholic school. St. Isidore will fully incorporate Catholic teachings into every aspect of the school, including its curriculum and co-curricular activities. It will require students to spend time in religious instruction and activities, as well as permit state spending in direct support of the religious curriculum and activities within St. Isidore--all in violation of the Establishment Clause....

... [W]hat St. Isidore requests from this Court is beyond the fair treatment of a private religious institution in receiving a generally available benefit, implicating the Free Exercise Clause. It is about the State's creation and funding of a new religious institution violating the Establishment Clause.12 Even if St. Isidore could assert free exercise rights, those rights would not override the legal prohibition under the Establishment Clause. Compliance with the Establishment Clause in this case is a compelling governmental interest that satisfies strict scrutiny under other provisions of the First Amendment.

Vice Chief Justice Rowe concurred in part and dissented in part, saying that he concurred only in the conclusion "that Article 1, Section 5 of the Oklahoma Constitution mandates that public charter schools are nonsectarian."

Justice Kuehn dissented, saying in part:

St. Isidore would not become a "state actor" merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.

AP reports on the decision.

Israel's Supreme Court Orders Drafting of Haredi Men

Yesterday, Israel's Supreme Court in a controversial ruling ordered the government to end draft deferments that have been given to ultra-Orthodox Jewish men studying in yeshivas.  According to The Guardian:

The unanimous ruling on Tuesday, from an expanded panel of nine judges, upheld an interim decision last month that the state had no authority to offer the current exemption for ultra-Orthodox, or Haredi, men. It found that yeshivas – Orthodox seminaries for Torah study – should be ineligible for state subsidies unless students enlisted in the military.

The court ruled the state was carrying out “invalid selective enforcement, which represents a serious violation of the rule of law, and the principle according to which all individuals are equal before the law … In the midst of a grueling war, the burden of inequality is harsher than ever and demands a solution.”

According to Times of Israel, within hours after the Court's decision, Israel's Attorney General ordered the Israel Defense Forces to immediately draft 3000 yeshiva students and ordered government ministries to stop transferring already-appropriated funds to yeshivas where students were studying in lieu of military service.

Suit Challenges Louisiana's Law Requiring Posting of 10 Commandments in Public Schools

Suit was filed yesterday in a Louisiana federal district court by a group of parents (some of whom are clergy) on behalf of their minor children challenging Louisiana's recently enacted statute that requires the posting of the Ten Commandments in every public-school classroom. Contending that the law violates the Free Exercise and Establishment Clauses, the complaint (full text) in Roake v. Brumley, (MD LA, filed 6/24/2024) alleges in part:

Permanently posting the Ten Commandments in every Louisiana public-school classroom—rendering them unavoidable—unconstitutionally pressures students into religious observance, veneration, and adoption of the state’s favored religious scripture. It also sends the harmful and religiously divisive message that students who do not subscribe to the Ten Commandments—or, more precisely, to the specific version of the Ten Commandments that H.B. 71 requires schools to display—do not belong in their own school community and should refrain from expressing any faith practices or beliefs that are not aligned with the state’s religious preferences. And it substantially interferes with and burdens the right of parents to direct their children’s religious education and upbringing.  

...The state’s main interest in passing H.B. 71 was to impose religious beliefs on public-school children, regardless of the harm to students and families. The law’s primary sponsor and author, Representative Dodie Horton, proclaimed during debate over the bill that it “seeks to have a display of God’s law in the classroom for children to see what He says is right and what He says is wrong.”

The advocacy groups bringing the suit (ACLU, Americans United, FFRF) issued a press release announcing the filing of the suit.

Certiorari Denied In Religious Broadcasters Challenge to Royalty Rates

The U.S. Supreme Court yesterday denied review in National Religious Broadcasters Noncommercial Music License Committee v. Copyright Royalty Board, (Docket No. 23-927, certiorari denied 6/24/2024). (Order List.) At issue in the case was whether the Copyright Royalty Board violated the Religious Freedom Restoration Act when the royalties it set for non-commercial religious broadcasters that stream copyrighted songs over the Internet were 18 time higher than the rates it set for the secular National Public Radio. (See prior related posting and ADF's press release for additional details.) Here are links to all the documents filed in the case.

Supreme Court Will Review Question of Sovereign Immunity for Taking of Assets in Holocaust

The U.S. Supreme Court yesterday granted review in Republic of Hungary v. Simon, (Docket No. 23-867, certiorari granted 6/24/2024) (Order List), a long-running case in which Holocaust survivors have sued to recover the value of property which Hungary expropriated from them during the Holocaust. At issue is whether the expropriation exception to sovereign immunity under the Foreign Sovereign Immunities Act applies so that the suit can be pursued in American courts. Here the seized assets were liquidated, and the proceeds were placed in the Hungarian treasury.  Under the FSIA, those proceeds must have been used in a commercial activity in the United States in order for U.S. courts to have jurisdiction. At issue in the appeal are questions of who must show that commercial nexus.  The D.C. Circuit below in its 2023 decision (full text) which is on appeal began its opinion as follows:

In 1944, as World War II neared its end, the Hungarian government implemented an accelerated campaign to exterminate its remaining Jewish population. Within a matter of months, the government systematically executed over half a million Jews—roughly two-thirds of the Jewish population in Hungary at the war's outset. This state-perpetrated genocidal campaign ranks among the greatest crimes in human history.

The questions raised by these appeals bear on whether survivors of the Hungarian Holocaust may hale the Hungarian government and its instrumentalities into United States courts to answer for a subset of the wrongs they committed—namely, their confiscation of property from victims of the Holocaust.

The SCOTUSblog case page has links to all the pleadings in the case.

Certiorari Denied in Connecticut Repeal of Religious Exemptions from Vaccination Requirements

The U.S. Supreme Court yesterday denied review in We the Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (Docket No. 23-643, certiorari denied 6/24/2024). (Order List.) In the case, the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision, upheld the constitutionality of Connecticut's repeal of religious exemptions from its mandatory vaccination laws, while retaining medical exemptions. (See prior posting.) AP reports on the Supreme Court's action.

Supreme Court Grants Cert. in Ban on Gender-Affirming Care for Minors

The U.S. Supreme Court today granted review in United States v. Skrmetti, (Sup. Ct., Docket No. 23-477, certiorari granted 6/24/2024). (Order List.) In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision, reversed a preliminary injunction issued by a district court in a challenge to Tennessee's ban on chemical, hormonal or surgical treatment of minors for gender dysphoria. The majority rejected due process and equal protection challenges to the state law. (See prior posting.) SCOTUSblog reports on the Supreme Court's action.

Namibia Court Strikes Down Bans on Male Homosexual Conduct

In Dausab v. Minister of Justice, (NA HC MD, June 21, 2024), a 3-judge panel of the High Court of Namibia held that the common law and statutory provisions that ban "sodomy" and "unnatural sexual offenses" unconstitutionally discriminate against gay men. The court said in part:

What emerges from the definition of sodomy is that the offense clearly and undoubtedly criminalises such sexual conduct between males.... What furthermore emerges is that various forms of sexual conduct, which have been held to constitute an offense, if committed by a male person with another male person are not regarded as criminal, if committed by a male person with a female person....

...[T]he impugned laws differentiate ... between male and female and between gay men and heterosexual men.... [T]he differentiation ... in so far as it criminalises anal sex between men and men but not between men and women, [is] based on one of the enumerated grounds set out in Article 10(2).... [I]n so far as the impugned laws differentiate between heterosexual men and gay men, it is not based on one of the enumerated grounds in Article 10(2)....

We have no qualms with counsel's argument that Article 10 does not make express reference to 'sexual orientation' as a ground of discrimination.... We, however, hold the view that the matter is not as simple as counsel portrays it to be, because the fact that a ground is not listed in Article 10(2) is not a license for the law to discriminate on that ground....

A press release by Human Dignity Trust has further background on the decision. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

From SSRN:

• Luke Boso, Expressive Conduct and the First Amendment Assault on Civil Rights, (June 19, 2024).
• Giuseppe Martinico, Identity Politics and the Militarisation of Constitutional Law, (April 15, 2024).
• Maria Florencia Saulino & Patricio Enrique Kenny, Can Churches Discriminate? Religious Freedom, Non-Discrimination, and the Search for an Inter-American Standard, (July 07, 2023).
• David A. Skeel & Anna Statz, Abortion Politics After Dobbs, (Arizona Law Review, Forthcoming).
• Nancy J. Knauer, Property and the LGBTQ Community: The US Example, (Research Handbook on Property Law and Theory (Chris Bevans ed., Edward Elgar Publishing – Law and Society Series) (forthcoming 2024)).
• Andrea Martin, Balancing Freedom of Expression and Equality on College Campuses in the Wake of Intensified Antisemitism, (Forthcoming, Brooklyn Law Review).

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

• Shamika Ravi, Abraham Jose & Apurv Kumar Mishra, Share of Religious Minorities: A Cross-Country Analysis (1950-2015), (May 07, 2024).
• Harshit Sangwan, The Influence of Constituent Assembly Debates on the Final Formulation of the Indian Preamble: A Study of Ideological and Political Considerations, (June 07, 2024).
• M. Mohsin Alam Bhat & Neil Chakraborti, Lost in Translation? Applying the Hate Crime Concept to an Indian Context, (Journal of Interpersonal Violence (2024)).
• Nizamuddin Ahmad Siddiqui, Uniform Civil Code and the Dynamics of Muslim Identity in India: An Introduction, ((2023) 19(4) Manchester Journal of Transnational Islamic Law and Practice 1).
• Urooj Khan & Danish Ahmed Siddiqui, How Belief of Tawhid Leads to Well-being in Muslims: The Serial Mediation of Tawakul, and Self-Regulation, Complemented by the Belief of Reward in the Afterlife, (June 13, 2024).
• Valentin Jeutner, The Function of Legal Ritual in the Peace Palace, (Oxford Journal of Law and Religion (2024) (forthcoming)).

From SmartCILP and elsewhere:

• Richard F. Duncan, Why School Choice Is Necessary for Religious Liberty and Freedom of Belief, 73 Case Western Reserve Law Review 1055-1082 (2023).
• Laura Beth Nielsen, Elsinore Kuo & Evan Zhao, Misgendering, Academic Freedom, the First Amendment, and Trans Students, 73 Case Western Reserve Law Review 1177-1208 (2023).
• Roberta Rosenthal Kwall, The Role of Ghetto Art in Holocaust Education and Fighting Antisemitism, 73 DePaul Law Review 39-56 (2023).
• Joseph Kersteins, A Historical, Philosophical, and Etymological Study of the Word "Religion" as Used in the First Amendment: Coming to a Textually-Based Definition, 31 George Mason Law Review 75-118 (2024).
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) and 501(c)(4) Organizations, (June 2024 edition).

Illegal Hajj Pilgrims Contributes to Large Death Toll; Countries Take Actions Against Tour Companies and Pilgrims

 According to CNN, Saudi Arabia says that 1301 people died while on the recently-completed Hajj where temperatures soared as high as 120 degrees Fahrenheit. 83% of those who died were on unauthorized trips that generally lacked air-conditioned busses and easy access to air-conditioned tents, food and water. According to BBC, nationals of Egypt, Indonesia, India, Pakistan, Malaysia, Jordan, Iran, Senegal, Sudan, Kurdistan and the United States were among the dead. The largest death toll seems to have been among Egyptians. Egypt announced today that it will revoke the licenses of 16 tourism companies who were involved in making illegal trip arrangements. According to VisaGuide, earlier this month Saudi Arabia announced that it would impose fines on citizens, expatriates and visitors who are caught in the area of the Hajj without a Hajj permit. Anyone caught transporting visitors who do not have Hajj permits will also be subject to fines and up to six months in prison. BBC says that mismanagement by Saudi authorities also contributed to the death toll.

DC Circuit: No Tax-Exempt Status for Church Promoting Psychedelics Unless It Has Received DEA or Judicial Exemption

In Iowaska Church of Healing v. Werfel, (DC Cir., June 21, 2024), the U.S. Court of Appeals for the District of Columbia Circuit upheld the IRS's denial of tax-exempt status to a church whose practices revolved around the use of the psychedelic Ayahuasca.  According to the court:

The Church’s purpose and mission revolve primarily around the consumption of Ayahuasca and embracing certain spiritual benefits that the Church’s members believe follow from Ayahuasca consumption.  

The church contended that denial of tax-exempt status violated the Religious Freedom Restoration Act. However, the court concluded that the church lacked standing to assert a RFRA claim because it did not show sufficient economic injury, and it had waived other theories of standing.

Additionally, the church argued that it qualified for an exemption under Internal Revenue Code §501(c)(3) because it was organized for religious purposes. The court said, however, that tax-exempt status can be denied if its purposes or activities are illegal.  Use of Ayahuasca in religious ceremonies is legal only if the Drug Enforcement Agency or a federal court has issued the church an exemption from the Controlled Substances Act. The church had received no exemption. The court rejected the church's argument that the Supreme Court's 2006 O Centro decision made the use of Ayahuasca presumptively legal for churches. the court concluded:

... [T]he IRS was correct in concluding that the Church’s Ayahuasca use foreclosed its eligibility for tax-exempt status.

EEOC Obtains Settlement for Failure to Accommodate Jewish Employee's Sabbath Observance

The EEOC today announced that two related automotive hauling and logistics companies have agreed to a $65,000 settlement (plus an injunction, reporting, monitoring and employee training requirements) to settle a Title VII suit charging them with religious and racial discrimination and retaliation.  The EEOC said in part in its press release:

According to the EEOC’s lawsuit, Wheeler subjected Charles R. Lynch, III, a Torah Observant employee at its Sheffield, Ohio, location to discrimination when they revoked his religious accommodation that would have allowed him to continue having Saturdays off to observe the Sabbath. The company also exposed Lynch, who is Israeli, to unlawful harassment that included likening him to a terrorist and mocking his religious beliefs.

Louisiana Governor Signs "Given Name Act", School Chaplaincy and 10 Commandments Bills

On Wednesday, Louisiana Governor Jeff Landry signed a package of 18 separate bills which the Governor's office described as " bills that will transform our education system and bring back common sense in our classrooms."  Among the bills were:

HB 121, the "Given Name Act" (full text). The new law prohibits any public or charter school policy "that provides for an inquiry of" the pronouns of a student or employee that are inconsistent with their biological sex, or "that provides for an inquiry of" their name that is not their legal name or a derivative of it. Teachers and other employees as well as other students may not be required to address a student by a name other than the student's legal name or a derivative of it, or to address a student using pronouns that are inconsistent with the person's biological sex. A parent may seek corrective action if a school employee refers to a student by other pronouns or by another name and may bring suit if corrective action is intentionally not taken. ADF issued a press release announcing the governor's signing of the bill.

HB 334 (full text) which permits public school boards to "employ or accept as a volunteer a certified chaplain to provide support, services, and programs for students, staff, and parents as assigned by a school board...." The new law also provides the chaplain with immunity from suit for actions or statements made under the program unless they were "maliciously, willfully, and deliberately intended to cause harm to harass or intimidate those seeking support, services and programs."

HB 71 that requires the posting of the Ten Commandments in every public school and college classroom. See this post for additional details.

Court Says States Lack Standing to Challenge EEOC's New PWFA Abortion-Accommodation Rule [CORRECTED]

In States of Tennessee et. al. v. EEOC, (ED AR, June 17, 2024), an Arkansas federal district court held that 17 states that are plaintiffs in the case lack standing to challenge an EEOC Final Rule implementing the Pregnant Workers Fairness Act.  At issue is the Rule's requirement that employers provide reasonable accommodation for employees' elective abortions. The court said in part:

[The states] press dual theories of injury -- sovereign harms and economic harms. The sovereign harms, the States say, are twofold: the rule will abridge their ability to regulate abortions and their interests in maintaining a pro-life message in dealing with state employees. The economic harms are the rule-related compliance costs the States say they will incur in response to potential enforcement....

The sovereign harms are not imminent because there is no credible threat of enforcement. ...

Even assuming an injury in fact, though, the States' sovereign-injury theory still fails for lack of causation and redressability. ...

Unlike in situations involving private employers, the EEOC cannot bring enforcement actions against state employers....  If an agreement isn't reached within thirty days after a charge is filed, the EEOC "shall take no further action and shall refer the case to" the Department of Justice"....

That leaves the alleged economic harms. The States don't claim any sunk costs. They only say that their compliance costs are imminent.. This economic-harm theory fails for two reasons.

First, the challenged costs-- those resulting only from rule-related compliance activities associated with illegal, elective abortions are neither concrete nor particularized. ...

Second, even assuming some concrete and particularized compliance costs related to illegal, elective abortions, these costs are not fairly traceable to any threat of enforcement....

Beyond the intense controversy surrounding abortion, there are no signs that this is a major questions case. Chevron's general rule applies.

CORRECTION: An earlier version of this post incorrectly said this was decided by a Tennessee federal district court. 

A Louisiana federal district court has just reached the opposite conclusion (see prior posting.) [Thanks to Thomas Rutledge for the lead.]

Court Says EEOC Exceeded Its Authority in New Rules Under Pregnant Workers Fairness Act

In State of Louisiana v. EEOC, (WD LA, June 17, 2024), a Louisiana federal district court granted a preliminary injunction to the states of Louisiana and Mississippi, as well as to the U.S. Conference of Catholic Bishops and two Louisiana dioceses, postponing the effectiveness of new EEOC rules under the Pregnant Workers Fairness Act that require employers to accommodate employees' elective abortions. The court said in part:

If Congress had intended to mandate that employers accommodate elective abortions under the PWFA, it would have spoken clearly when enacting the statute, particularly given the enormous social, religious, and political importance of the abortion issue in our nation at this time (and, indeed, over the past 50 years).  The Court is therefore not persuaded, on the record before it, that Congress could reasonably be understood to have granted the EEOC the authority to interpret the scope of the PWFA in a way that imposes a nationwide mandate on both public and private employers – irrespective of applicable abortion-related state laws enacted in the wake of Dobbs – to provide workplace accommodation for the elective abortions of employees.

In this sense, EEOC’s use of its regulatory power to insert the issue of abortion into a law designed to ensure healthy pregnancies for America’s working mothers squarely implicates the “major questions doctrine” as enunciated by the Supreme Court....  The major questions doctrine applies when an “agenc[y] assert[s] highly consequential power beyond what Congress could reasonably be understood to have granted.”...

Clearly, EEOC failed to include a broad religious exception in the Final Rule, and... EEOC’s interpretation of the PWFA religious exception – inasmuch as it mirrors the religious exception in Title VII, an antidiscrimination statute – does not square with the PWFA.

See prior related posting.

9th Circuit Reverses Dismissal of Suit Challenging Refusal to Grant Religious Exemptions to Vaccine Mandate

 In Bacon v. Woodward, (9th Cir., June 18, 2024), the U.S. 9th Circuit Court of Appeals in a 2-1 decision reversed a Washington federal district court's dismissal of a suit by firefighters who claim that their free exercise rights were infringed by the city of Spokane refusing to accommodate their religious objections to the Covid vaccine. The majority said in part:

The Complaint alleges that, once unvaccinated firefighters were terminated, Spokane would turn to firefighters from neighboring fire departments to fill the gaps left by the firefighters’ departure even though those fire departments granted religious accommodations to their employees.  In other words, Spokane implemented a vaccine policy from which it exempted certain firefighters based on a secular criterion—being a member of a neighboring department—while holding firefighters who objected to vaccination on purely religious grounds to a higher standard.  The Free Exercise Clause prohibits governments from “treat[ing] comparable secular groups more favorably.”...

 ... [T]he Complaint alleges at least three less restrictive ways that “[t]he Mayor, the Fire Chief, and the City could accomplish its same compelling purpose.”...

Judge Hawkins dissented, saying that rational basis review should apply:

The complaint alleges that the City Defendants applied the Proclamation to their employees uniformly and treated medical and religious objectors the same.  The complaint also alleges that other cities and entities adopted different policies and the City Defendants had pre-existing mutual aid agreements with some neighboring fire departments.  The complaint then predicts that, as a result of those pre-existing mutual aid agreements, some unvaccinated firefighters from neighboring departments may operate within the City of Spokane.  In my view, these allegations are insufficient to plausibly show that the Proclamation, as implemented by the City Defendants, is not neutral or generally applicable.

9th Circuit: Homeowner's Intrusive Christmas Display at Center of Fragmented Decision on Fair Housing Act Claims

 In Morris v. West Hayden Estates First Addition Homeowners Association, Inc., (9th Cir., June 17, 2024), the U.S. 9th Circuit Court of Appeals partially affirmed an Idaho federal district court's rejection of a jury's verdict against a Homeowner's Association charged by plaintiff with violating provisions of the Fair Housing Act. At issue was efforts by the Homeowners Association to prevent plaintiffs from purchasing a home in the subdivision because of plaintiffs' plans to put on at their home a multi-day Christmas festival with thousands of lights, a live nativity scene, costumed characters and a real camel, all in order to raise funds for charity. A letter from the Homeowners Association to plaintiffs included a sentence reading: "And finally, I am somewhat hesitant in bringing up the fact that some of our residents are non-Christians or of another faith and I don’t even want to think of the problems that could bring up."

Judge Berzon's opinion, reflecting the conclusion of a majority of the 3-judge panel, held that there was insufficient evidence to support the jury's verdict of religious discrimination in violation of §3604(b) the Fair Housing Act, saying in part:

... [T]o support a disparate treatment claim, plaintiffs must be able to point to some concrete adverse impact suffered as a result of the defendants’ behavior.  The Morrises have pointed to no such harm.

Similarly she held that the evidence did not support claims of a violation of §3604(c), saying in part:

Viewing the letter as a whole, an ordinary reader would understand the Board to have indicated a preference, limitation, or discrimination based not on whether the prospective homeowners were themselves religious or nonreligious, Christian or atheist, but on whether the event they proposed to host once a year would disturb the neighbors, both by its size and raucousness and by offending non-Christians. 

However, the court upheld the jury's conclusion that the Homeowners Association violated §3617 of the Act, saying in part:

The Board’s letter to the Morrises could reasonably be read to indicate that the program’s association with the Christian faith was one consideration in the Board’s opposition to the show....

These statements sufficiently support an inference by the jury that an anti-Christian purpose was at least a motivating factor in the Board’s conduct regarding the proposed Christmas event, independent of any other concerns also underlying that conduct.  And given this permissible inference, there was sufficient evidence for the jury rationally to conclude that the Board interfered with the Morrises’ exercise of their right to purchase and enjoy their home at least in part because of their religious expression, and therefore violated § 3617 of the FHA.

Judge Berzon went on to conclude that on the facts of this case, the Homeowners Association was not liable for harassing conduct of subdivision residents.

Judge Tashima dissented in part, contending that the district court correctly granted judgment for the Homeowners Association on all claims because the Homeowners Association's concern was with the size and scale of the Morrises' holiday events, not with the Morrises' religion.

Judge Collins dissented in part saying that he would have affirmed the jury's finding of liability on all the Morrises' claims.

6 More States Fend Off Enforcement of Title IX Transgender Discrimination Rules

Four days after a Louisiana federal district court enjoined the Department of Education from enforcing its new sex-discrimination rules under Title IX against Louisiana, Mississippi, Montana and Idaho (see prior posting), a Kentucky federal district court issued an opinion barring enforcement against Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia which were plaintiffs in the case. DOE's new rules interpret the Title IX ban on sex discrimination to include discrimination against transgender students and faculty by institutions receiving federal financial assistance. Intervenors in the Kentucky case are an organization of Christian educators and a cisgender high school girl who objects to a transgender female who was on her Middle School track team. In State of Tennessee v. Cardona, (ED KY, June 17, 2024), the court in a 93-page opinion said in part:

The Department’s new definition of “discrimination on the basis of sex” wreaks havoc on Title IX and produces results that Congress could not have intended....

For purposes of Title IX, “sex” is unambiguous.  Therefore, there is no “implicit delegation from Congress” to the Department to change or expand its meaning.... But even if the word were ambiguous, there would be significant reason for pause before assuming that Congress “had intended such an implicit  delegation.”...  Education is one of the most important functions of state and local governments and is an area where states “historically have been sovereign.” ...  Accordingly, it is unlikely that Congress would have intended to delegate the authority to deviate from Title IX’s original purpose “in so cryptic a fashion.”...

The major questions doctrine assumes that Congress speaks clearly when it delegates to an agency the authority to make “decisions of vast economic and political significance.”...

The court also concluded that the new rules violate teachers' free speech rights, saying in part:

... [P]rivate and public institutions, as well as the students, faculty, and staff therein, will be forced to convey a particular message that may contradict moral or religious values....  For example, the Final Rule’s definition of harassment will likely compel “students and teachers to use ‘preferred’ rather than accurate pronouns.” ...

It is unclear how the Government’s articulated position can be seen as anything less than a tacit endorsement of a content-based heckler’s veto So long as the offended individuals complain with sufficient vigor, the refusal to abide by preferred pronouns can be deemed harassment and exposes a recipient of Federal funds to liability under Title IX....

The court also focused on parental rights and privacy rights, saying in part:

Although the Final Rule gestures at retaining a certain role for parents, it does not provide that parental opposition to their child’s selective gender identity requires schools to exempt that student from Title IX’s new mandate.  To the contrary, it implies that Title IX could supersede parental preferences about a child’s treatment depending on the case.

... [D]espite society’s enduring recognition of biological differences between the sexes, as well as an individual’s basic right to bodily privacy, the Final Rule mandates that schools permit biological men into women’s intimate spaces, and women into men’s, within the educational environment based entirely on a person’s subjective gender identity.  This result is not only impossible to square with Title IX but with the broader guarantee of education protection for all students.

ADF issued a press release announcing the decision.

White House Statements Extend Greetings On Eid al-Adha

Today is Eid al-Adha.  Yesterday the White House posted a message from President Biden (full text) and a separate message from Vice-President Harris (full text) conveying holiday wishes to American Muslims and Muslims around the world.  President Biden said in part:

This year, Eid al-Adha comes at a difficult time for many Muslims around the world. In Gaza, innocent civilians are suffering the horrors of the war between Hamas and Israel. Too many innocent people have been killed, including thousands of children. Families have fled their homes and seen their communities destroyed. Their pain is immense. My Administration is doing everything we can to bring an end to the war, free all hostages, deliver humanitarian relief, and work toward a future two-state solution, which I continue to believe is the only way to achieve a lasting peace for Palestinians and Israelis. And I strongly believe that the three-phase ceasefire proposal Israel has made to Hamas and that the U.N. Security Council has endorsed is the best way to end the violence in Gaza and ultimately end the war.

We’re also working to bring a peaceful resolution to the horrific conflict in Sudan. And we continue to advocate for the rights of other Muslim communities – including the Rohingya in Burma and the Uyghurs in the People’s Republic of China – facing persecution around the world. They, like all people, deserve to live free from violence and fear....

In the spirit of Eid al-Adha, let us all renew our commitment to values that unite us – compassion, empathy, and mutual respect – which are both American and Islamic. We look forward to welcoming home our American Muslim pilgrims who have earned the title “Al-Hajj.” To them and all Muslims across the globe, we wish you a blessed and meaningful holiday. Eid Mubarak!

The White House also posted a Fact Sheet (full text) setting out a lengthy list of steps it has taken this year to support the Muslim community.

Recent Articles of Interest

From SSRN:

• Yofi Tirosh, Consent, Multiculturalism, and Exit: A Contemporary Critique of Religious Accommodation and the Right to Sex Equality, Political Theology (forthcoming).
• Caroline Mala Corbin, Religion Clause Challenges to Early Abortion Bans, (Forthcoming, Boston University Law Review Online, Vol. 104, p. 37, 2024).
• Dov Fischer, A Modern Commentary to Maimonides, Chapter 7 קביעוּת ודחיוֹת שׁל ראשׁ השׁנה הלכות קידוש החודש, (May 13, 2024).
• Kalaghe Ndunda, Sex or Both Sex and Sexual Orientation? Critique of Supreme Court Decision in Eric Gitare in Line With Holistic Interpretation of the Constitution of Kenya 2010, (March 7, 2024).
• Kristen Popham, Embryos Are Not People, but Disability Is Difference: Toward an Antidiscrimination Theory for Reproductive Services, (January 10, 2024).
• Ahmer Bilal Soofi, Al-ma’rūf—the Wonder Phrase of the Quran and Contemporary Laws (May 14, 2024).

From SmartCILP and elsewhere:

• Angela R. Pruitt, Maybe Today, Satan: A Christian Supreme Court, Unbalanced Religious Clauses, and the Rise of The Satanic Temple, 26 Journal of Gender, Race & Justice 271 (2023).
• M. Williams, Conversion Therapy on LGBTQ+ Children as a Form of Torture and the Rights of the Child in the Face of the United States Constitution’s Free Speech and Religious Free Exercise Clauses, 26 Journal of Gender, Race & Justice 393 (2023).

6th Circuit: DOE's Interpretive Letter on Title IX Should Have Gone Through Notice and Comment Procedure

In State of Tennessee v. Department of Education, (6th Cir., June 14, 2024), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that a "Dear Educator" Letter and accompanying Fact Sheet from the Department of Education interpreting Title IX should be set aside because they amount to a legislative rule which did not go through the required notice and comment procedure.  At issue are documents from DOE interpreting Title IX's ban on sex discrimination as covering discrimination based on sexual orientation and gender identity in education programs and activities that receive federal financial aid. The suit challenging these documents was brought by 20 states whose policies on separate sex programs are based on biological sex.  In a footnote, the majority added:

We are aware that the Federal Register recently published a final rule amending the Department of Education’s Title IX regulations.... This new rule does not moot this case for two reasons.  First, the final rule does not go into effect until August 2024.  Second, the final rule does not cover everything that is covered by the documents, like housing and athletics.

Judge Boggs dissented, contending that plaintiffs lacked standing to bring the lawsuit, saying in part:

... [T]he Interpretation, “Dear Educator” Letter, and Fact Sheet ,,, are interpretative rules or policy statements, which are generally not final for purposes of judicial review under the Administrative Procedure Act.....

I agree that the Documents are intended to have in terrorem effect on states and school districts such as the plaintiffs.  They clearly can be interpreted as desiring a change in voluntary policies by recipients of federal funding.  However, the same could be said of a major Presidential address or a Secretarial campaign targeting the States with speeches and public statements.

Missouri Abortion Bans Do Not Violate State Constitution's Establishment Clauses

In Blackmon v. State of Missouri, (MO Cir. Ct., June 1, 2024), a Missouri trial court held that Missouri's various statutory provisions banning abortion do not violate the Establishment Clauses of the Missouri Constitution. Plaintiffs focused particularly on the mention of God in one of the statutory provisions and the legislative determination that life begins at conception in other provisions. The court concluded that the language mentioning God was similar to that in the Preamble to the Missouri Constitution, and that finding that language problematic would call into question whether the state Constitution's Preamble itself violates the Constitution.  In rejecting plaintiffs' other challenges, the court said in part:

Large portions of the parties' arguments centered around comments made by legislators concerning their religious motivations for supporting the Challenged Provisions. However, the court finds that individual comments by legislators should be given little to no consideration when determining the constitutionality of the Challenged Provisions....

The court does not accept Petitioners' argument that the determination that life begins at conception is strictly a religious one. The plain language of the Challenged Provisions stating that life begins at conception do not do so in religious terms.... While the determination that life begins at conception may run counter to some religious beliefs, it is not itself necessarily a religious belief. As such, it does not prevent all men and women form worshiping Almighty God or not worshipping according to the dictates of their own consciences....

Americans United issued a press release responding to the decision.

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).