Kansas Supreme Court Invalidates Ban on D&E Abortions, Abortion Clinic Regulations

In Hodes & Nauser MDs, P.A. v. Kobach, (KS Sup. Ct., July 5, 2024), the Kansas Supreme Court, in a 5-1 decision, held that a 2015 statute that bans (except in limited circumstances) so-called "dismemberment abortions" violates the Kansas state constitution. The court said in part:

S.B. 95 effectively bans a common method of second-trimester abortion called Dilation and Evacuation except when a D & E is "necessary to preserve the life of the pregnant women" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman."...

The State devoted much of its brief to inviting us to reverse our earlier ruling in this case that the Kansas Constitution protects a right to abortion. We decline the invitation....

The State has not carried its burden to establish S.B. 95 is narrowly tailored to furthering any compelling interest.

Justice Wilson filed a concurring opinion, saying in part:

I write separately because I believe S.B. 95 is unconstitutional, though for a different reason than the majority. In my view, this purported law is unconstitutionally vague, leaving a doctor vulnerable to criminal culpability, while providing dubious notice and insufficient explanation to the doctor of what conduct is criminalized. Thus, prosecutors and juries determine retroactively when and how S.B. 95's rules are violated.

Justice Stegall dissented, saying in part:

First, it is noteworthy that the majority cannot bring itself to acknowledge the government's compelling interest in unborn human life. Yes, the majority maneuvers around this problem by skipping it in favor of its narrow tailoring analysis. But the truth is, the majority doesn't answer this question because it is so decidedly troublesome to the majority's new section 1 regime. For the majority, an interest in protecting unborn life— including the dignity of that life—is only "aspirational" with "many nuances and facets" that have "potentially far-reaching precedential effect."...  For those unfamiliar with legalese, this translates to, "We don't want to tie our hands with such inconveniences."

In a second 5-1 decision in Hodes & Nauser, MDs. P.A. v. Stanek, (KS Sup. Ct., July 5, 2024), the Kansas Supreme Court, in majority and dissenting opinions covering 114 pages, struck down "a series of statutes and implementing regulations ... relating to licensure of abortion provider facilities." The court said in part:

... [T]he State failed to meet its evidentiary burden to show the Challenged Laws further its identified compelling interest in protecting maternal health and regulating the medical profession as it relates to maternal health. Without this showing, the Challenged Laws do not survive strict scrutiny and are constitutionally infirm. We decline the State's request to sever the unconstitutional licensure requirements because the State failed to meet its burden to show severability is proper under applicable Kansas law. Finally, we deem it unnecessary to address the district court's finding of an equal protection violation because we are affirming the district court's decision on grounds that the State failed to satisfy its burden to show the Challenged Laws further a compelling state interest....

Justice Rosen and Justice Biles each filed a concurring opinion.

Justice Wilson filed a concurring opinion, saying in part:

... I am duty bound to follow the clear and essential path illuminated by our precedent. This is necessary to protect the stability, predictability, and trust in our legal system. My decision to do so is further buttressed by the people's vote on this very matter, which can be interpreted as a repudiation of legislative attempts to eliminate the core holdings of Hodes I—holdings which survive today's confusing and troubling revisions.

Justice Stegall filed a dissenting opinion, saying in part:

The saga of this court's section 1 jurisprudence has now taken its bizarre—but predicted—turn. Recall I wrote at the conclusion of my lengthy dissent in Hodes I that a legal regime of unrestricted access to abortion is now "the judicially preferred policy tail wagging the structure of government dog" and, as such, every rule and even judicial coherence and consistency will "give way, at every turn, to the favored policy." ... Should proof of this claim be required, one need look no further than the pudding of today's decision.... The betrayal of this court's promise of neutral, uniform, and rational constitutional adjudication is as far-reaching as it is audacious—and its damaging impact on this institution's legitimacy will be felt for years to come.

UPI reports on the decision.

 

Christian Released-Time Education Provider Sues Foe for Copyright Infringement

LifeWise, Inc. is a Christian nonprofit organization that provides released-time religious education to public school students where state law permits. It uses a copyrighted curriculum which it has developed.  Last week it filed a copyright infringement suit in an Indiana federal district court against Fort Wayne parent Zachary Parrish who was a creator of a Facebook group and a website opposing use of the LifeWise curriculum.  Parrish's website contends that "Lifewise Academy is spreading Evangelical Christianity, Purity Culture, Christian Nationalism, homophobic beliefs, transphobia, and hateful rhetoric to the youngest of our children."  The complaint (full text) in LifeWise, Inc. v. Parish, (ND IN, filed 7/2/2024), alleges in part:

30. ... Mr. Parrish signed up online to volunteer for LifeWise. 

31. ... Mr. Parrish does not support LifeWise’s mission. Instead, his goal was to gather information and internal documents with the hope of publishing information online which might harm LifeWise’s reputation and galvanize parents to oppose local LifeWise Academy chapters in their communities. 

32. ... [A]fter submitting his fraudulent volunteer application, Mr. Parrish improperly gained access to LifeWise’s information storage systems, downloaded internal LifeWise documents, and posted them to his Website. He also improperly obtained and posted a digital copy of the entire LifeWise Curriculum.

33. On April 9, 2024, LifeWise’s attorney sent Mr. Parrish a cease and desist letter informing him of his infringement and requesting he remove LifeWise’s internal documents, which are currently unregistered works, from the Website. 

34. Mr. Parrish responded by emailing a meme stating: “it’s called fair use bitch.”

WOSU Public Media and Cleveland.com report on the lawsuit.

Claims That College Encouraged Jewish Plaintiffs to File Antisemitism Claims Are Dismissed

As previously reported, five Orthodox Jewish faculty members at New York's Kingsborough Community College are suing the school, the faculty union and various faculty members asserting religious hostile work environment and retaliation claims. Two of the faculty member defendants in turn filed cross claims against the school (which is part of City University of New York) alleging breach of contract and First Amendment violations. They alleged that the school was complicit with plaintiffs in attempting to retaliate against them for their expression of anti-Israel views. In Lax v. City University of New York, (Kings Cty. NY Sup. Ct., July 5, 2024), a New York state trial court dismissed the cross claims. The court said that cross claimants had not alleged any retaliatory animus or adverse action taken by the school. The court said in part:

CUNY, as a governmental entity, cannot be held liable for failing to prevent plaintiffs from allegedly violating Wetzel and Perea's right to free speech since CUNY was not charged with any affirmative duty to silence plaintiffs regarding their complaints of discrimination and anti-Semitism....

Having an anti-Israel political agenda is not a protected group under the NYSHRL or the NYCHRL....

... Wetzel and Perea have not alleged that CUNY instigated or encouraged plaintiffs to file their EEOC complaints or to otherwise accuse them of anti-Semitism. 

--[CORRECTED] 

[Thanks to Volokh Conspiracy for the lead.] 

Mohamed Elsanousi Appointed to USCIRF

On June 26, President Biden announced his appointment of Dr. Mohamed Elsanousi as a member of the United States Commission on International Religious Freedom. Dr. Elsanousi is Executive Director of the Network for Religious and Traditional Peacemakers. He was a founder of Faiths4Vaccines which promoted equitable distribution of the Covid vaccine and combatted vaccine hesitancy. According to the organization's website, he holds a bachelor’s degree in Shariah and Law from Islamabad, Pakistan's International Islamic University, an LL.M. and a Ph.D from Indiana University School of Law, as well as a graduate diploma in philanthropic studies from the Indiana University Center on Philanthropy. USCIRF's announcement of his appointment says in part:

Elsanousi was the Principal Coordinator for developing the standards and protocols for safeguarding the rights of Christian, Jewish, and other religious minorities in Muslim-majority communities. His efforts in this role led to the adoption of the Marrakech Declaration, the most recognized Islamic theological document advocating for improved religious freedom.

Recent Articles of Interest

 From SSRN:

• Kyle Velte, The Supreme Court's Gaslight Docket, (June 28, 2024).
• Stephanie H. Barclay, The Religion Clauses After Kennedy v. Bremerton School District, 108 Iowa L. Rev. 2097 (2023).
• Kathleen Brady, Catholic Liberalism and the Liberal Tradition, (June 11, 2023).
• Sophia Palumbo, Preserving the Sacred Medicine: Why Peyote Should Be Excluded from Entheogenic Plant Decriminalization Efforts, (Ohio State Legal Studies Research Paper No. 862 (2024)).
• Felice Batlan, The Displaced Persons Act of 1948 and Home-Grown Antisemitism, (April 01, 2024).
• Reva B. Siegel & Mary Ziegler, Abortion's New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs and the 2023 Term, (Yale Law School, Public Law Research Paper (July 1, 2024).
• Peter J. Mazzacano, From Covenant to Compact to Contract: The Legal Transplantation of Puritan Jurisprudence to America, (A Civil Society with no Hierarchy, Bădescu & Livni (eds.) (2023)).

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

• Mohammad Sarim, Re-Smothering of India's Independence: A study about Discriminated Indian Muslims, (May 27, 2024).
• Kaushal Singh, Rethinking Secularism: An Inquiry into its Viability and Adaptation in the Indian Context, (April 23, 2024).
• Yohannes Eneyew Ayalew & Karin Frodé, Regulating Online Hate Speech in Ethiopia Through International Human Rights Standards: (Infra)structural Challenges, (December 15, 2023).

From SmartCILP:

• Tracy Hester, Ecoworship and Federal Environmental Law, 48 Columbia Journal of Environmental Law 311-365 (2023).
• Mara Poulsen, Comment. I Will Multiply Thy Sorrow and Thy Conception: Abortion as a Crime of Moral Turpitude, 96 Temple Law Review 95-134 (2023).

Two Additional Courts Enjoin Enforcement of New Title IX Rules

In addition to the nationwide preliminary injunction against enforcement of the Department of Education's new Title IX rules on transgender discrimination (see prior posting), two other federal district court last week issued more geographically limited preliminary injunctions against enforcement of the same rules. In State of Florida v. Department of Health and Human Services, (MD FL, July 3, 2024),  a Florida federal district court enjoined enforcement within Florida, saying in part:

HHS and the Final Rule interpret Title IX, and hence section 1557, to prohibit discrimination based on “gender identity.” 89 Fed. Reg. at 37,699 (45 C.F.R. § 92.101(a)(2)). The Final Rule is stillborn and a nullity if Title IX does not prohibit discrimination on the basis of “gender identity.” The Eleventh Circuit has spoken on this point, clearly: Title IX does not address discrimination on the basis of gender identity. Adams v. Sch. Bd. of St. John’s Cnty., 57 F. 4th 791, 812–15 (11th Cir. 2022) (en banc). Frankly, this ends the issue—the new Rule appears to be a dead letter in the Eleventh Circuit.

In State of Kansas v. U.S. Department of Education, (D KS, July 2, 2024), a Kansas federal district court issued a preliminary injunction against enforcement of the new rules in Kansas, Alaska, Utah and Wyoming, saying in part:

... [T]he purpose of Title IX was to protect “biological women from discrimination in education[;] [s]uch purpose makes it difficult to sincerely argue that, at the time of enactment, ‘discrimination on the basis of sex’ included gender identity, sex stereotypes, sexual orientation, or sex characteristics.”... The DoE’s reinterpretation of Title IX to place gender identity on equal footing with (or in some instances arguably stronger footing than) biological sex would subvert Congress’ goals of protecting biological women in education....

... [T]he court finds that the Final Rule involves issues of both vast economic and political significance and therefore involves a major question.... As such, Congress must have given the agency “clear statutory authorization” to promulgate such a Final Rule.....The court finds that Congress did not give such clear statutory authorization to the DoE....

... [T]he Final Rule violates the Spending Clause because it introduces conditions for spending that were not unambiguously clear in Title IX....

The court finds that Plaintiffs have shown that the Final Rule violates he First Amendment by chilling speech through vague and overbroad language.....

 [T]he court finds that the Final Rule is arbitrary and capricious because it offers an implausible explanation for agency action, is a sharp departure from prior action without a reasonable explanation, and failed to consider important interests as discussed herein.

Arizona Governor Vetoes Bill That Would Have Required Equal Insurance Coverage and Access for Gender Detransitioning

On June 18, Arizona Governor Katie Hobbs vetoed (full text of veto letter) vetoed Senate Bill 1151 (full text) that would have required health insurers that cover gender transition procedures to also provide coverage for gender detransition procedures. It would also have required physicians and hospitals that provide gender transition procedures to provide or pay for gender detransition procedures. It also would have required insurance companies to report data to the state (without identifying information on patients) on detransition claims. Governor Hobbs in her veto letter said that the bill is unnecessary and would create privacy risks for patients. Catholic News Agency reported on the Governor's veto, quoting many who disapproved of her action.

Court Grants Nationwide Injunction Barring Extensiion of Title IX To Gender Identity Discrimination

In State of Tennessee v. Becerra, (SD MS, July 3, 2024), in a suit brought by 15 states a Mississippi federal district court issued a nationwide preliminary injunction barring the Department of Education from enforcing its new rules under Title IX insofar as they define sex discrimination as including discrimination on the basis of gender identity. The court said in part:

The Supreme Court recently held that agencies are no longer entitled to deference pursuant to Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.... because Chevron “allow[ed] agencies to change course even when Congress [had] given them no authority to do so.” Loper Bright Enters. v. Raimondo,....

The Supreme Court further held that “statutes, no matter how impenetrable, do — in fact, must — have a single, best meaning....

In summary, the Court has found no basis for applying Bostock’s Title VII analysis to Section 1557’s incorporation of Title IX. HHS acted unreasonably when it relied on Bostock’s analysis in order to conflate the phrase “on the basis of sex” with the phrase “on the basis of gender identity.”...

... [T]his Court cannot accept the suggestion that Congress, with a “clear voice,” adopted an ambiguous or evolving definition of “sex” when it acted to promote educational opportunities for women in 1972.

Mississippi Today reports on the decision.

NY Sanitation Worker Can Move Ahead on Failure To Accommodate Anti-Vax Beliefs

Decisions on suits by individuals who were denied religious exemptions from now-rescinded Covid vaccine mandates are still being issued by the courts.  In Rizzo v. New York City Department of Sanitation, (SD NY, July 2, 2024), a New York federal district court refused to dismiss a Title VII failure to accommodate claim (as well as similar state-law and local-law claims) brought by a New York City sanitation worker. The court rejected the city's arguments that the worker's objections were based on conscience, not religion. It also rejected, at least at this stage of the litigation, the city's argument that accommodation would impose an undue burden on the city.  The court also allowed plaintiff to move forward on his claim that the city failed to engage in cooperative dialogue as required by the New York City Human Rights Law.  However, the court dismissed plaintiff's Title VII disparate impact claim and his 1st Amendment Free Exercise claim.

Court Rejects Texas AG's Challenge To Catholic Agency Assisting Migrants

 As previously reported, a legal battle has been underway between Annunciation House, a Catholic agency serving migrants and refugees in El Paso, and Texas Attorney General Ken Paxton who accuses the agency of sheltering migrants who have entered the country illegally. This week the Attorney General failed in his efforts to close down Annunciation House.  In Annunciation House, Inc. v. Paxton (I), (TX Dist. Ct., July 1, 2024), a Texas state trial court held that Texas statutes which bar harboring migrants to induce them to stay illegally in the U.S. are pre-empted by federal law and cannot be used as the basis for a quo warranto action to revoke the agency's registration to operate in Texas. The court said in part:

The State’s proposed counterclaim in the nature of quo warranto violates the Texas Religious Freedom Restoration Act by substantially burdening Annunciation House’s free exercise of religion and failing to use the “least restrictive means” of securing compliance with the law.

In Annunciation House, Inc. v. Paxton (II), (TX Dist. Ct., July 1, 2024), the court dismissed the Attorney General's suit against Annunciation House, saying in part:

The record before this Court makes clear that the Texas Attorney General’s use of the request to examine documents from Annunciation House was a pretext to justify its harassment of Annunciation House employees and the persons seeking refuge.

El Paso Times reports on the case.

Belgian Court Fines Catholic Archbishop and Cardinal for Denying Woman Clergy Training

The Pillar and Catholic News Agency report that a Belgian civil court has fined a Cardinal and an Archbishop each 1500 Euros for refusing to allow a woman to register for training as a deacon in the Catholic Church. Article 10 of Belgium's Constitution provides that "Equality between women and men is guaranteed." In Belgium, the state pays the salaries of clergy, but the Catholic Church reserves holy orders to baptized men. While the court held that the Church should have admitted Veer Dusauchoit for training, it did not address whether the Church would later be required to ordain her.

Alaska Supreme Court Rejects Facial Challenge To Law Allowing State Reimbursement to Home Schoolers For Materials

In State of Alaska, Department of Education & Early Development v. Alexander, (AK Sup. Ct., June 28, 2024), the Alaska Supreme Court refused to hold unconstitutional on its face a state statute that permits school districts to approve an allotment of funds to families to purchase educational materials and services for correspondence study programs from public, private or religious organizations. Plaintiffs contended that the law violates a provision in the Alaska Constitution barring the use of public funds for the direct benefit of any religious or other private educational institution. The Supreme Court said that there are some clearly constitutional applications of the statute, so a facial challenge does not succeed. It added:

Under AS 14.13.300-.310 it is school districts, not the State, that design students’ individual learning plans and authorize particular uses of allotment funds to purchase services and materials in connection with those plans. For this reason, Alexander’s claim that certain uses of allotment funds are unconstitutional cannot proceed without joining a school district that has authorized those uses of allotment funds.

The superior court rejected this argument, which was error. We therefore vacate the court’s denial of the State’s motion to dismiss Alexander’s as-applied challenge and remand for further proceedings. To proceed with an as-applied challenge on remand, Alexander must decide which particular uses of allotments he believes are unconstitutional and then identify and join the school district or districts that authorized that spending.

Alaska Watchman reports on the decision.

Jewish Women Lack Standing in Religious Freedom Challenge to Kentucky Abortion Restrictions

In Sobel v. Cameron, (KY Cir. Ct., June 28, 2024), plaintiffs, three Jewish women, alleged, among other things, that the lack of exceptions for complications during pregnancy and lethal fetal anomalies in Kentucky's restrictive abortion laws impinge on their willingness to follow their religious obligations to expand their families in a manner that does not jeopardize their health or the health of their unborn children. Plaintiffs say that "In Judaism, having children is considered a blessing, and the commandment to be fruitful and multiply is paramount." Plaintiffs alleged that the abortion statutes are unconstitutionally vague, violate the Kentucky Religious Freedom Restoration Act and reflect sectarian Christian views that denigrate Jewish practice. A Kentucky state trial court dismissed the case, saying in part:

... [T]he alleged injuries of the three Plaintiffs are hypothetical as none are currently pregnant or undergoing IVF at the present time. Accordingly, the Court simply cannot find that the plaintiffs have shown "the existence of an actual controversy respecting justiciable questions which is a required condition precedent for a declaratory judgment action.... Therefore, the Court must conclude that the Plaintiffs here lack standing to proceed in this action.

NPR reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Robert C. Blitt, Agent of Russian Interests Abroad: Assessing the Moscow Patriarchate’s Activity in the Balkans and Beyond, (27(2) Gonzaga Journal of International Law 57, Forthcoming).
• Elizabeth Sepper, Crisis of Conscience in Post-Roe America, (25 J. of Contemp. Legal Issues 67 (2024)).
• Sahar F. Aziz, Racing Religion in the Palestine-Israel Discourse, (May 20, 2024).
• Netta Barak Corren, Cleaning the Mess of 303 Creative v. Elenis, (Notre Dame Law Review, Forthcoming).
• Mark V. Tushnet, Hate Speech, (May 30, 2024).
• Itay Ravid & Jonathan Zandberg, The Business of Abortion: Access to Capital Post Dobbs, (75(4) UC L. J. 977 (2024)).
• Daniel Del Gobbo, Reckoning with Queer History: The Canadian 'LGBT Purge' Case and the Limits of Forgiveness, (Forthcoming in (2025) 62:1 Osgoode Hall Law Journal).
• Andrew M. Koppelman, The Ugly Rhetoric of Dobbs, or, Why Jack Balkin is History, (William & Mary Bill of Rights Journal (Forthcoming)).
• Christopher R. Green, Moral Reality as a Guide to Original Meaning: In Defense of United States v. Fisher, (Journal of Christian Legal Thought, Volume 14, no. 1, pp. 35-43).
• Trace Maddox, “No Superior But God”: History, Post Presidential Immunity, and the Intent of the Framers, (81 Wash. & Lee L. Rev. Online 333 (2024)).

From SmartCILP:

• Muhammad Ahmad Munir & Brian Wright, Reshaping Insanity in Pakistani Law: The Case of Safia Bano, 49 American Journal of Law & Medicine 301-313 (2023).
•  Anne Alstott, Melisa Olgun, Henry Robinson & Meredithe McNamara, "Demons and Imps": Misinformation and Religious Pseudoscience in State Anti-Transgender Laws, 35 Yale Journal of Law & Feminism 223-288 (2024).

Justice of the Peace's Challenge to Reprimand for Refusing Same-Sex Marriage Officiation Is Remanded

 In Hensley v. State Commission on Judicial Conduct, (TX Sup. Ct., June 28, 2024), the Texas Supreme Court, in an 8-1 decision, held that a Justice of the Peace may move ahead with her suit brought against members of the Judicial Conduct Commission who issued a formal warning to the Justice of the Peace because of her refusal to perform same-sex marriages. The Justice of the Peace would perform marriages for heterosexual couples, but referred same-sex couples to others that would perform a ceremony for them. She contended that the Commissioners' actions violated the Texas Religious Freedom Restoration Act as well as her free speech rights. The court held that there was no requirement to exhaust administrative remedies before filing suit, nor was the suit against individual commissioners (as opposed to the Commission itself) barred by sovereign immunity.

Justice Blacklock, joined by Justice Devine, filed a concurring opinion, agreeing that as a procedural matter the case can move forward, but said that the Supreme Court should have reached the substantive claims and dismissed them.  He said in part:

There are no victims. There was no crime. We have a Christian justice of the peace in a small Texas city doing her best to navigate her duties to God and to the public. We have no real people even claiming to be harmed by her actions. We certainly have no same-sex couples denied a marriage—or anything even close to that. There is no good reason for this case to exist.

But it does exist. It exists because of the Judicial Conduct Commission, which veered far outside its proper lane by self-initiating this victimless but politically and emotionally charged case. The Commission misinterpreted the Code of Judicial Conduct and violated Judge Hensley’s religious-freedom rights by publicly sanctioning her and by continuing to hold over her head the threat of a future, harsher sanction should she resume her marriage-referral policy. To her credit, Judge Hensley did not capitulate. And for the last several years, the Commission has doubled down again and again on this misbegotten case, all the way to the Texas Supreme Court.

Justice Young filed a brief concurring opinion. Justice Lehrmann filed a dissenting opinion contending that plaintiff failed to exhaust her administrative remedies before filing suit.

First Liberty Institute issued a press release announcing the decision.

Iowa Supreme Court Allows 6-Week Abortion Ban to Go into Effect

In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Sup.Ct., June 28, 2024), the Iowa Supreme Court in a 4-3 decision reversed the grant of a temporary injunction against Iowa's 6-week fetal heartbeat abortion ban. The Court said in part:

We have previously held that abortion is not a fundamental right under the Iowa Constitution....  Applying our established tiers of scrutiny, we hold that abortion restrictions alleged to violate the due process clause are subject to the rational basis test. Employing that test here, we conclude that the fetal heartbeat statute is rationally related to the state’s legitimate interest in protecting unborn life. We thus reverse the district court order entering the temporary injunction blocking enforcement of the fetal heartbeat statute....

Chief Justice Christensen, joined by Justices Waterman and Mansfield, filed a dissenting opinion, saying in part:

Today, our court’s majority strips Iowa women of their bodily autonomy by holding that there is no fundamental right to terminate a pregnancy under our state constitution. I cannot stand by this decision. The majority’s rigid approach relies heavily on the male-dominated history and traditions of the 1800s, all the while ignoring how far women’s rights have come since the Civil War era. It is a bold assumption to think that the drafters of our state constitution intended for their interpretation to stand still while we move forward as a society. Instead, we should interpret our constitution through a modern lens that recognizes how our lives have changed with the passage of time.

Justice Mansfield, joined by Chief Justice Christensen and Justice Waterman, filed a dissenting opinion saying in part:

I believe that subjecting a near-total ban on abortion to a rational basis test—the same test we apply to traffic cameras, and a more forgiving test than the one we apply to a law not allowing county auditors to correct defective absentee ballot applications—disserves the people of Iowa and their constitution. The liberty protected by article I, section 9 of the Iowa Constitution includes a woman’s ability to make decisions regarding her own body, just as it includes rights of procreation, parenting, and to use contraception.

Wisconsin Supreme Court: Harassment Injunction Against Anti-Abortion Protester Vacated

In Kindschy v. Aish, (WI Sup. Ct., June 27, 2024), the Wisconsin Supreme Court ordered a trial court to vacate a harassment injunction issued against an anti-abortion protester.  At issue were allegedly threatening statements made to nurse practitioner Nancy Kindschy on three different dates as she left work at a family planning clinic. For example, defendant Brian Aish warned Kindschy that she "had time to repent, that 'it won't be long before bad things will happen to you and your family,' and that 'you could get killed by a drunk driver tonight.' " The court said in part:

We conclude that the injunction is a content-based restriction on Aish's speech, and therefore complies with the First Amendment only if: (1) Aish's statements were "true threats" and he "consciously disregarded a substantial risk that his [statements] would be viewed as threatening violence;" or (2) the injunction satisfies strict scrutiny; that is, it is narrowly tailored to achieve a compelling state interest.... On the record before us, we hold that the injunction fails to satisfy either of these two standards. We therefore reverse the decision of the court of appeals and remand to the circuit court with instructions to vacate the injunction.

The court explained further:

In this case, the circuit court's harassment injunction was issued before Counterman [v. Colorado] was decided [by the U.S. Supreme Court]. The circuit court therefore did not evaluate whether Aish's statements were true threats, or whether he "consciously disregarded a substantial risk that his communications would be viewed as threatening violence." ... Because the circuit court failed to make clear findings regarding Aish's subjective mental state as it relates to his statements to Kindschy, we need not decide whether Aish's statements were true threats. Whether they were true threats or not, the injunction cannot be justified on true-threats grounds.,,,

Justice Bradley filed a concurring opinion, saying in part:

On their face, Aish's statements cannot be interpreted as true threats.

Aish uttered words of caution or warnings, not threats of violence....

More importantly, none of the three statements suggested Aish or a co-conspirator would be the one to cause any harm to Kindschy. At most, the statements suggested unaffiliated third parties could cause Kindschy harm, like a "drunk driver."

Thomas More Society issued a press release announcing the decision.

Oklahoma Education Head Requires All Schools to Incorporate the Bible into Their Curriculum

Yesterday, Oklahoma State Superintendent of Public Instruction Ryan Walters issued a Memo (full text) to all public-school superintendents in the state requiring them to incorporate the Bible into their schools' curriculum. The Memo reads in part:

Effective immediately, all Oklahoma schools are required to incorporate the Bible, which includes the Ten Commandments, as an instructional support into the curriculum across specified grade levels, e.g. grades 5 through 12....

The Bible is one of the most historically significant books and a cornerstone of Western civilization, along with the Ten Commandments. they will be referenced as an appropriate study of history, civilization, ethics, comparative religion, or the like, as well as for their substantial influence on our nation's founders and the foundational principles of our Constitution. This is not merely an educational directive but a crucial step in ensuring our students grasp the core values and historical context of our country....

Adherence to this mandate is compulsory.... 

The Department of Education also issued a press release announcing the new policy. KFOR News reports on the new policy. [Thanks to Thomas Rutledge for the lead.]

UPDATE: To implement the policy, in July 2024, the Oklahoma Department of Education issued Guidelines for Teachers.

City-Sponsored Prayer Vigil Violated Establishment Clause

In Rojas v. City of Ocala, (MD FL, June 26, 2024), a Florida federal district court held that a prayer vigil in the town square organized by the police department violated the Establishment Clause. The 2014 vigil was planned in order to encourage witnesses to a shooting spree to come forward. The court in a previous decision found that the vigil violated the Establishment Clause, but the 9th Circuit remanded the case after the U.S. Supreme Court in 2022 repudiated the Lemon test and adopted a new test for determining when there has been an Establishment Clause violation. (See prior posting.) Reflecting on the time that had passed since the vigil, the court said:

In the meantime, the Chief of Police, Greg Graham, passed away; the Mayor of Ocala at the time left office; and the Prayer Vigil (which occurred in 2014) has not been repeated. Thus, the Court inquired whether it would make sense to call it a day on this timeworn litigation. But the parties, both represented by lawyers who specialize in First Amendment religion cases, insist on going forward. And, as the Court previously awarded nominal damages, the case is not moot....  So on we go.

Reaching the conclusion that under the Supreme Court's new Establishment Clause test set out in Kennedy v. Bremerton School District there was still an Establishment Clause violation, the court said in part:

Based on the undisputed facts, the City’s involvement in conceiving, organizing, and implementing the Prayer Vigil is government sponsorship of a religious event...

... [T]he City’s support of the Prayer Vigil favored a religious viewpoint. While the Prayer Vigil was geared towards Christianity, there is some evidence that it was not limited to any one faith.... But that thin layer of neutrality is not enough to avoid an Establishment Clause violation....

Similarly, Chief Graham’s offer to connect an objector, Paul Tjaden, with organizers... is not comparable to neutrality....  Trying to achieve neutrality towards religion by inviting an atheist to speak at an event whose only purpose is prayer fails to treat the secular viewpoint with the same level of respect being provided to religious prayer.

As Kennedy commands, the Court bases its decision on a “historically sensitive understanding of the Establishment Clause”....

Suit Challenges Michigan Medicaid Ban on Abortion Funding

Suit was filed yesterday in the Michigan Court of Claims challenging the exclusion of abortion coverage from the state's Medicaid program. Plaintiff is a local YWCA which operates a Reproductive Health Fund that provides financial support for county residents for reproductive health care, including abortion services. The complaint (full text) Young Women's Christian Association of Kalamazoo, Michigan v. State of Michigan, (MI Ct. Cl., filed 6/27/2024), alleges that the exclusion violates the state Constitutional Amendment protecting reproductive freedom, the Michigan Reproductive Health Act which implemented the Amendment and the ban on sex discrimination. ACLU issued a press release announcing the filing of the lawsuit.

Supreme Court Backs Off Deciding Whether EMTALA Pre-empts Idaho's Abortion Ban

In Moyle v. United States, (Sup. Ct., June 27, 2024), the U.S. Supreme Court reinstated an injunction that had been issued by an Idaho federal district court (see prior posting) which barred Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act.  The Supreme Court did this in a per curiam order that vacated a previous stay of the injunction issued by the Supreme Court and which returned the case to the 9th Circuit Court of Appeals, finding that certiorari had been improvidently granted.

Justice Kagan, joined by Justice Sotomayor filed an opinion concurring with the dismissal, saying in part: 

Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute....

[Idaho] mainly argues that EMTALA never requires a hospital to “offer medical treatments that violate state law,” even when they are needed to prevent substantial health harms.... In my view, that understanding of EMTALA is not “likely to succeed on the merits,” and so cannot support a stay of the injunction.

Justice Jackson concurred in the portion of Justice Kagan's opinion that responded to Justice Alito's dissenting opinion. 

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh filed a concurring opinion, saying in part:

A grant of certiorari before judgment presumes that further proceedings below are unnecessary to the Court’s resolution of the question presented. That was a miscalculation in these cases, because the parties’ positions are still evolving. The United States has clarified that EMTALA’s reach is far more modest than it appeared when we granted certiorari and a stay. Idaho law has materially changed since the District Court entered the preliminary injunction, and, based on the parties’ arguments before us, it seems that the framing of these cases has not had sufficient opportunity to catch up...

On top of that, petitioners have raised a difficult and consequential argument, which they did not discuss in their stay applications, about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal law.

Justice Jackson filed an opinion concurring in part and dissenting in part, saying in part:

This Court typically dismisses cases as improvidently granted based on “circumstances . . . which ‘were not . . . fully apprehended at the time certiorari was granted.’” ... This procedural mechanism should be reserved for that end—not turned into a tool for the Court to use to avoid issues that it does not wish to decide.

The reasons that justified our grant of certiorari in these cases still hold true today.... The importance of recognizing Congress’s judgments in EMTALA remains as imperative as ever. The United States is still hamstrung in its ability to enforce federal law while States pass laws that effectively nullify EMTALA’s requirements. And, on the ground, healthcare providers “have been all but paralyzed by legal uncertainties,” placing pregnant patients at risk while they are waiting to be transferred out of State to receive the care they need....

If anything, the need for a clear answer to the Supremacy Clause question has only increased in the intervening months....

Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects....

Justice Alito, joined by Justice Thomas and in part by Justice Gorsuch, filed a dissenting opinion, saying in part:

 At no point in its elaboration of the screening, stabilization, and transfer requirements does EMTALA mention abortion. Just the opposite is true: EMTALA requires the hospital at every stage to protect an “unborn child” from harm....

For those who find it appropriate to look beyond the statutory text, the context in which EMTALA was enacted reinforces what the text makes clear. Congress designed EMTALA to solve a particular problem—preventing private hospitals from turning away patients who are unable to pay for medical care.... And none of many briefs submitted in this suit has found any suggestion in the proceedings leading up to EMTALA’s passage that the Act might also use the carrot of federal funds to entice hospitals to perform abortions. To the contrary, EMTALA garnered broad support in both Houses of Congress, including the support of Members such as Representative Henry Hyde who adamantly opposed the use of federal funds to abet abortion.....

EMTALA is an exercise of Congress’s spending power. And when Congress relies on its authority to attach conditions to the receipt of federal funds, special rules apply....

The potential implications of permitting preemption here are far-reaching. Under the Government’s view, Congress could apparently pay doctors to perform not only emergency abortions but also third-trimester elective abortions or eugenic abortions. It could condition Medicare funds on hospitals’ offering assisted suicide even in the vast majority of States that ban the practice....

NBC News reports on the decision.

Pro-Life Pregnancy Centers May Move Ahead with Challenges to Vermont Regulations

 In National Institute of Family and Life Advocates v. Clark, (D VT, June 14, 2024), a Vermont federal district court allowed three pro-life pregnancy centers to move ahead with free speech challenges to Vermont's regulation of limited-service pregnancy centers. At issue is a prohibition on disseminating misleading information about the services offered by such pregnancy centers as well as a provision making health care professionals at these pregnancy centers responsible for the conduct and speech of non-licensed individuals.  The statute also provides that offering services to reverse a medication abortion constitutes unprofessional conduct by health care workers at the centers. The court rejected the state's claim that the speech being regulated is commercial speech or is regulation of professional conduct that merely incidentally regulates speech. It allowed plaintiffs to move ahead with their claims that the statutes discriminate on the basis of the viewpoint. However, the court dismissed plaintiffs' vagueness claims. ADF issued a press release announcing the decision.

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.