Recent Articles of Interest

 From SSRN:

• L. Joe Dunman, Testing Religious Insanity, (70 Wayne Law Review __ (2025) (forthcoming)).
• Aaron J. Rappaport, The American Creed and the Constitutional Order, (58 Creighton L. Rev. __ (2024)).
• L. Ali Khan, The German Far-Right An Examination of the AfD Manifesto, (August 17, 2024).
• Sara Saleem, Inheritance to Great-Grand Children, (July 15, 2024).
• Andre Oboler, et. al., Online Anti-Muslim Hate and Racism Against Palestinians and Arabs, (October 2023 – February 2024 | Report: IR2403).
• Samiul Hasan, Constitutionalism in Muslim Majority Countries: Religiously Required, Judicially Wrecked, (August 01, 2024).
• Ross Hickey, A. Abigail Payne & Justin Smith, Canadian Tax Foundation (CTF), Policy Forum: Understanding the Efficacy of Tax Credits for Charitable Donations in Canada, (Canadian Tax Journal/Revue fiscale canadienne, Vol. 72, No. 2, 2024, pp. 317 - 327).
• Teresa Stanton Collett, Personhood and the Post-Dobbs Abortion Debate, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 24-12 (2024).

From SmartCILP:

• Larry J. Obhof, Assessing the Future of "Offended Observer" Standing in Establishment Clause Cases,72 Cleveland State Law Review 395-432 (2024).
• Mark Strasser, Free Exercise, the Respect for Marriage Act, and Some Potential Surprises,72 Cleveland State Law Review 433-474 (2024).
• Nathan J. Ristuccia, The Priesthood of All Citizens: On the Pseudo-Theology of Penitent Privilege, 93 Mississippi Law Journal 291-348 (2023).
• Andrew B. Rogers, Beyond Undue Hardship: Religion and Sincerity in a Post-Groff World, 62 University of Louisville Law Review 341-482 (2024).

Buffer Zone Ordinance Violates Free Speech Rights of Protesters Because of Inadvertent Breadth of Ban

In Sisters for Life, Inc. v. Louisville-Jefferson County Metro Government, (WD KY, Sept. 13, 2024), anti-abortion sidewalk counselors challenged a city ordinance that created a ten-foot buffer zone from the street to the door of health care clinics.  Only clinic personnel, patients and those accompanying them, law enforcement and persons walking through to a different destination could enter the buffer zone. The ordinance was passed because of problems at one particular abortion clinic. The court found that the Ordinance would have been permissible if limited to clinics with problems but violated free speech rights because it applies to all healthcare facilities. The court said in part:

At the time of the ordinance’s passage, the city had established healthcare access problems at only one facility—EMW—and principally on Saturday mornings.... It is clear from the record that the Council intended for the ordinance to create buffer zones only at facilities which were having access or safety issues and chose to request a buffer zone, like abortion clinics, battered women’s shelters, and emergency rooms.... This is what the legislators expected in drafting and passing the ordinance.... And how EMW understood the ordinance to work....  And how LMPD enforced its terms.... 

... Metro Council gave careful consideration to each alternative and endeavored to choose the least burdensome option.  But for its inadvertent application to facilities with no established access issues, it is difficult to imagine how the ordinance could be more closely tailored to the city’s interest in preserving safe access to healthcare facilities. Regardless, the Court is bound by the Sixth Circuit’s holding: “The [Supreme] Court’s conclusion in McCullen applies here.  This buffer zone is not narrowly tailored.”...

The court also concluded that the ordinance did not violate plaintiffs' free exercise rights or the Kentucky Religious Freedom Restoration Act because the ordinance is neutral and generally applicable. 

Tribe Seeks Supreme Court Review of Transfer of Sacred Site to Mining Company

A petition for certiorari (full text) was filed this week with the U.S. Supreme Court in Apache Stronghold v. United States, (Sup. Ct., filed 9/11/2024). In the case, the U.S. 9th Circuit Court of Appeals sitting en banc, by a vote of 6-5, refused to enjoin the government from transferring to a copper mining company federally-owned forest land that is of significant spiritual value to the Western Apache Indians. (See prior posting.) The petition for review raises issues under both RFRA and the 1st Amendment's Free Exercise clause. Becket Fund issued a press release announcing the filing of the petition seeking Supreme Court review.

Indiana Trial Court Rejects "As Applied" Challenge to State Abortion Restrictions

Last year, Indiana's Supreme Court rejected a facial challenge to the state's 2022 abortion law. In that case, the Indiana Supreme Court held:

Article 1, Section 1 protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk. Yet, this holding does not support Plaintiffs’ claim for a preliminary injunction. That is because they framed their claim as a facial challenge to the entire statute in all conceivable circumstances rather than an as-applied challenge to the law’s application in any particular set of circumstances where a pregnancy endangers a woman’s life or health. (See prior posting.)

Plaintiffs then filed an "as applied" constitutional challenge to the Indiana law. In Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky, Inc. v. Members of the Medical Licensing Board of Indiana, (IN Cir. Ct., Sept. 11, 2024), an Indiana state trial court now rejected that challenge.  The court said in part:

Plaintiffs have not shown a that S.B.1 materially burdens the rights of any specific patient or well-defined class of patients to access constitutionally protected abortion care. Significant and compelling evidence regarding the policy implications of S.B. 1-- and its effect on medical professionals in particular-- was presented. However, the Court cannot substitute its own policy preferences for that of the Indiana General Assembly and the Court limits its examination to the General Assembly's constitutional authority post-Planned Parenthood. Plaintiffs have not shown an instance where an abortion is necessary to treat a serious health risk but would also fall outside of the Health and Life Exception.  Additionally, Plaintiffs have not demonstrated that the Hospital Requirement is materially burdensome to constitutionally protected abortion access, nor that it fails rational basis review as to statutorily authorized (but not constitutionally protected) abortions.

Liberty Counsel issued a press release announcing the decision.

North Dakota Trial Court Says State Abortion Ban Violates State Constitution

 In Access Independent Health Services, Inc. v. Wrigley, (ND Dist, Ct., Sept. 12, 2024), a North Dakota state trial court judge held that the state's current abortion law that bans abortions (with limited exceptions), violates the state constitution.  The court said in part:

[T]he court concludes that (1) the Amended Abortion Ban set forth in Chapter 12.1-19.1, N.D.C.C., as currently drafted, is unconstitutionally void for vagueness; and (2) pregnant women in North Dakota have a fundamental right to choose abortion before viability exists under the enumerated and unenumerated interests protected by the North Dakota Constitution for all North Dakota individuals, including women-- specifically, but not necessarily limited to, the interests in life, liberty, safety, and happiness enumerated in Articles [I], section 1 of the North Dakota Constitution.

The court also observed:

... [T]he decision in this matter may be one of the most important this Court issues during its time on the bench. However, in reaching the decision below, it is also not lost on the Court that, on appeal, this Court's decision is given no deference.

... The Court is left to craft findings and conclusions on an issue of vital public importance when the longstanding precedent on that issue no longer exists federally, and much of the North Dakota precedent on that issue relied on the federal precedent now upended-- with relatively no idea how the appellate court in this state will address the issue.

North Dakota Monitor reports on the decision.

South Carolina Supreme Court: State Scholarship Program for Private School Students Violates State Constitution

 In Edison v. South Carolina Department of Education, (SC Sup. Ct., Sept. 11, 2024), the South Carolina Supreme Court in a 3-2 decision held that the state's Education Scholarship Trust Fund Act violates the state constitution insofar as it authorizes use of ESTF funds to pay tuition and fees to private educational institutions.  Article XI, Sec. 4 of the South Carolina Constitution provides:

No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.

The court said in part:

A parent who chooses to use a scholarship to pay their child's private school tuition is undoubtedly using public funds to provide a direct benefit to the private school....  After we clear away the window dressing, we can see the Act funnels public funds to the direct benefit of private schools.  This is what our constitution forbids.  We conclude Petitioners have carried their burden of proving beyond a reasonable doubt the portion of the Act that allows tuition payments from public funds for the direct benefit of private educational institutions violates Article XI, Section 4.

Chief Justice Kittredge, joined by Justice Few, filed a dissenting opinion, saying in part:

Under the South Carolina Constitution, the use of public funds for the direct benefit of a private school is impermissible; the use of public funds for the indirect benefit of a private school is entirely permissible....

In my view, ... the structure and operation of the ESTF Act provide an indirect benefit to schools of the families' choice—both private and public alike. Nonetheless, the majority opinion today defines the phrase "direct benefit" so broadly that it swallows any possible meaning of "indirect benefit" in the process.

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

10th Circuit: School Administrator Fired Over Religious Comments Has Discrimination, But Not Retaliation, Claim

 In McNellis v. Douglas County School District, (10th Cir., Sept. 10, 2024), the U.S. 10th Circuit Court of Appeals affirmed dismissal of retaliation claims by a high school Assistant Principal/ Athletic Director, but reversed dismissal of his religious discrimination claims under Title VII and the Colorado Anti-Discrimination Act.  Plaintiff Corey McNellis was fired after he complained about the depiction of Christians in an upcoming school play about the 1998 hate-motivated murder of Matthew Shepard in Wyoming. The court concluded the McNellis's speech was not protected by the 1st Amendment because it was made in the course of performing his official duties. It also concluded the McNellis's complaints about being investigated because of his Christian beliefs were not the cause of his firing. In allowing plaintiff to proceed with his discrimination claims, the court said that plaintiff had alleged sufficient facts to give rise to an inference of discrimination.

9th Circuit: Requiring Tree Trimming Did Not Violate Plaintiff's Free Exercise Rights

In Joseph v. City of San Jose, (9th Cir., Sept. 11, 2024), the U.S. 9th Circuit Court of Appeals rejected plaintiff's claim that enforcement of municipal code restrictions violated his 1st Amendment religious free exercise rights. The court said in part:

Joseph asserts that the City’s assessments against his trees placed a substantial burden on the free exercise of his “religious and spiritual beliefs,” which he describes as having “Buddhist, Taoist, Celtic, quantum physics, evolutionary, neurological, numerological, and cosmological foundations.”  Although “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds,” a court may properly consider “whether the alleged burden imposed by the [challenged state action] is a substantial one.”... We hold that the City’s actions did not create a substantial burden.  Joseph voluntarily complied with the generally applicable municipal code requirements to trim the trees’ overgrown vines, and he stated during his deposition that such trimming did not impair the trees’ spiritual or religious value.... .  “The right to freely exercise one’s religion ... ‘does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”....

Maryland Supreme Court Hears Arguments in Challenge to Child Victims Act

 On Tuesday, the Maryland Supreme Court heard oral arguments in three related cases that raise the question of whether the Maryland Child Victims Act of 2023 impermissibly abrogated a vested right created by a 2017 statute. The 2023 Act eliminated the statute of limitations for damage actions alleging sexual abuse while the victim was a minor. The cases heard by the court are Key School, Inc. v. Bunker (video of oral argument); Board of Education of Harford County v. John Doe (videos of oral argument on constitutional question and on standing); and Roman Catholic Archbishop of Washington v. John Doe (video of oral argument). AP reports on the oral arguments. [Thanks to Thomas Rutledge for the lead.]

Missouri Supreme Court: Abortion Rights Issue Must Appear on November Ballot

 The Missouri Supreme Court yesterday ruled that the Missouri's Right to Reproductive Freedom amendment must appear on the November ballot, reversing a decision by a trial court last week. (See prior posting.) The Supreme Court in Coleman v. Ashcroft, (MO Sup. Ct., Sept. 10, 2024) said in part in its Order:

By a majority vote of this Court, the circuit court’s judgment is reversed. Respondent John R. Ashcroft shall certify to local election authorities that Amendment 3 be placed on the November 5, 2024, general election ballot and shall take all steps necessary to ensure that it is on said ballot. Opinions to follow. ...

Pursuant to section 116.150.3, the secretary of state must certify a petition as sufficient or insufficient by 5:00 p.m. on the thirteenth Tuesday before the election.  Respondent Ashcroft certified the petition as sufficient prior to that deadline, and any action taken to change that decision weeks after the statutory deadline expired is a nullity and of no effect....

Missouri Independent reports on the decision.

USCIRF Report: US Better at Condemning Violations of Religious Freedom Than at Promoting Change

Last week (Sept. 6), the U.S. Commission on International Religious Freedom issued a 28-page report (full text) titled Revisiting the CPC Designation. The report evaluates the effectiveness of the provisions of the International Religious Freedom Act that call for designating as Countries of Particular Concern those nations where the government has engaged in or tolerated particularly severe violations of religious freedom. The Report says in part:

Key informant interviews and independent discourse analysis reveal that the CPC designation mechanism is far more effective at condemning religious freedom violations than promoting changes to policy..... 

In its 25-year history, IRFA has played a significant role in elevating international religious freedom as a U.S. foreign policy priority and galvanizing a global effort to advance this fundamental human right. The CPC designation mandate, including its requirement for subsequent actions, represents a core component of that policy effort. When appropriately utilized, it has energized action across the IRF ecosystem. Maintaining this energy has been critical in cases of success; this is true both within the U.S. foreign policy sphere and with violator states. When the United States is able to make a sustained, coherent, and adaptive case for religious freedom, U.S. interlocutors take note. The CPC designation tool is the enforcement mechanism that undergirds these efforts. 

However, its use can be improved through more consistent application, integration into U.S. bilateral relationships, and documentation of changes to freedom of religion or belief. Too often, the application of IRFA has failed to produce genuine change to advance religious freedom. The repeated use of sanctions waivers backed by vague justifications and the repurposed application of preexisting sanctions dilute the effectiveness of the CPC designation. The indefinite suspension of sanctions or other punitive measures for religious freedom violators, whether due to inertia or competing policy priorities, impedes accountability for religious freedom violators. When waivers must be issued, as the act permits, the State Department should provide clear justifications and timelines.

Baptist Press reports on USCIRF's findings.

Muslim Woman Can Move Ahead on Some Challenges to Sheriff's Booking Photo Policy

In Hague v. Kent County, (WD MI, Sept. 9, 2024), plaintiff, a Muslim woman, challenged the Kent County, Michigan, Sheriff Office's policy on booking photos for detainees wearing a religious head covering. Two photos were taken, one with the head covering and one without.  Only the one with the head covering is released to the public. The other was uploaded to the Michigan State Police data base. Multiple officers could be present when the photos were taken. The court held that the photo policy imposed a substantial burden on plaintiff's religious exercise in violation of RLUPA. but that money damages are not available for RLUIPA violations. Declaratory or injunctive relief is available. It also allowed plaintiff to move forward with her 1st Amendment free exercise claim, including for damages, against the county and the sheriff's office. The sheriff, though, has qualified immunity as to damage claims under the 1st Amendment.

Texas Sues HHS Over Rule Protecting Privacy of Information About Out-of-State Abortions

Last week, Texas Attorney General Ken Paxton filed suit against the U.S. Department of Health and Human Services challenging two HHS privacy rules that limit entities covered by HIPPA from disclosing certain health care information about patients to state law enforcement officials. The rule adopted earlier this year (see prior posting) specifically prohibits disclosure of information to enforcement officials in a woman's home state for their use in a civil, criminal or administrative proceeding investigating reproductive health care (including abortions) provided in another state where the health care was lawful in the state where it was provided. The complaint (full text) in State of Texas v. U.S. Department of Health and Human Services, (ND TX, filed 9/4/2024), alleges in part that HIPAA explicitly preserves state investigative authority and does not give HHS authority to promulgate rules limiting has HIPPA regulated entities may share information with state governments. The Texas Attorney General's office issued a press release announcing the filing of the lawsuit.  AP reports on the lawsuit. [Thanks to Thomas Rutledge for the lead.]

6th Circuit: Permit Requirement Did Not Substantially Burden Church

 In Dad's Place of Bryan, Ohio v. City of Bryan, Ohio, (6th Cir., Sept. 5, 2024), the U.S. 6th Circuit Court of Appeals refused to enter a preliminary injunction pending appeal to prevent the city from enforcing requirements that the church obtain a permit or variance before people may sleep on the first floor of the church building. Rejecting plaintiff's RLUIPA argument, the court said in part:

Dad's Place fails to show that it will likely succeed on establishing that the City's zoning laws substantially burden its religious exercise.... [T]he burdens alleged by Dad's Place are self-imposed.... The City provides a process by which entities in the commercial district can seek a variance or conditional use permit ("CUP") allowing them to operate as residential facilities.... Yet, despite being opened in 2018, Dad's Place has never applied to the City for a CUP or variance.... RLUIPA does not entitle Dad's Place to engage in unauthorized uses without ever seeking a permit or variance to do so....

Additionally, Dad's Place has not shown that it lacks adequate alternatives. For example, it can use a second floor as a residential facility or open a second facility. It asserts that such alternatives "transform the nature of the Church's ministry," but it gives no explanation as to why its ministry requires people to sleep on the ground floor of the building as opposed to the second floor, or why its ministry would be less effective if people slept in a different building that was properly zoned for residential use....

The court also rejected plaintiff's free exercise claim.

RLUIPA Success Unlikely on Challenge to Denial of Special Use Permit for Jewish Retreat Center

In Fresh Start Center v. Township of Grosse Ile, (ED MI, Sept. 5, 2024), a Michigan federal district court refused to grant a preliminary injunction in a RLUIPA lawsuit challenging the denial of a variance and a special land use permit to the Fresh Start Center to operate a religious retreat center in an area zoned residential. The Center holds retreats twice a month for Orthodox Jews who have experienced a loss of faith because of trauma. Each retreat involves 4 to 5 participants from all over the world and up to 4 other staff. The court said in part:

Because Plaintiff has not demonstrated a strong likelihood of establishing a substantial burden on the Center’s religious exercise, the Court need not determine whether that substantial burden was the least restrictive means of furthering a compelling government interest....  Here, the Center has not shown there are no feasible alternate locations within the Township and outside the Township where the Center can conduct its retreats.  The only burden the Center has demonstrated is disappointment that it cannot conduct its retreats at the Property.  The present record reveals that being unable to conduct its retreats at a desired location does not rise to the level of a substantial burden.  While the Center may ultimately succeed on the merits once the record is more fully developed, at this juncture it has not shown a strong likelihood of success on the merits of its substantial burden RLUIPA claim....

The court also concluded that plaintiff is unlikely to prevail on a claim that the denial violated the equal terms provision of RLUIPA.

Factual Issues Remain in Chaplain's Suit Over Ouster for Anti-Trans Blog Post

 In Fox v. City of Austin, (WD TX, Sept. 4, 2024), a Texas federal district court refused to grant summary judgment to either side on several claims in a suit brought by a volunteer chaplain for the Austin, Texas fire department.  Plaintiff was fired because of his blog posts saying that God created each person as male or female, that sex is immutable and that it is unfair to allow males to compete in women's sports. Applying the balancing test in the Supreme Court's Pickering decision, the court concluded that there is a genuine dispute of material fact as to the extent of the disruption that the blog posts caused within the Fire Department.  Thus, the court refused to grant summary judgment on plaintiff's free speech retaliation claim, his free exercise claim and his claim under the Texas Religious Freedom Restoration Act. The court did dismiss plaintiff's claim that his free speech rights were violated when the Department requested that plaintiff write an apology note and it found that the fire chief had qualified immunity in the claim against him for damages.

Recent Articles of Interest

From SSRN:

• Bray, Samuel L. Bray & D.N. Keane, James Ussher (1581-1656), (August 13, 2024).
• Habeeb Olayinka Lawal, Debunking Myth: Islamic Banking and Riba (Interest Or Usury), (July 29, 2024).
• Nicholas Tramposch & Daniel J.H. Greenwood, After Smith Falls: Corporate Free Exercise Lochnerism, (Hofstra Univ. Legal Studies Research Paper (forthcoming)).
• Paula A. Monopoli, The Nineteenth Amendment and Dobbs, (15 ConLawNOW 227 (2024)).

From SmartCILP:

• Shlomo C. Pill, Issues in Law and Ministry: Tort and Employment Law, 69 Wayne Law Review 243-310 (2024).
• Russell Powell, Religious Originalism, 69 Wayne Law Review 311-362 (2024).

Trial Court Says Missouri's Abortion Rights Initiative Petitions Were Invalid

In Coleman v. Ashcroft, (MO Cir. Ct., Sept. 6, 2024), a Missouri state trial court held that the petitions used to obtain signatures to include Missouri's Right to Reproductive Freedom amendment on the November ballot violated the provision in Missouri law that the petitions must include all sections of existing law or of the constitution which would be repealed by the measure. The court said in part:

Defendants argued on the record that such omission was made because it would confuse voters in that Amendment 3 would eventually have some type of effect on all sorts of laws.  That theory, of course, is not an exception to the requirements of 116.050 RSMo.

The secretary of state has already certified the measure to appear on the ballot. The court said that the only remedy for such omissions was enjoining certification of the measure and its appearance on the ballot. However, the court delayed execution of the injunction until September 10, the deadline for printing the measure on the ballot, so the issue could be reviewed by an appellate court.

AP reports on the decision.

Parents Sue Over School Policy That Places Students Together on Overnight Trips on Basis of Gender Identity

Suit was filed this week in a Colorado federal district court by parents of Jefferson County, Colorado school children challenging the district's policy of assigning students and counselors on overnight school trips to room together on the basis of shared gender identity rather than biological sex. The complaint (full text) in Wailes v. Jefferson County Public Schools, (D CO, filed 9/4/2024), alleges that the policy violates parents' right to control the upbringing and education of their children, students' right of bodily privacy, and the free exercise rights of both parents and students.  The complaint, which asks that Plaintiff students in the future not be placed in accommodations with transgender students, says in part:

346. Parent Plaintiffs have a sincere religious belief that they must teach their children to practice modesty and protect their children’s modesty. This requires that their children not undress, use the restroom, shower, complete other intimate activities, or share overnight accommodations with the opposite sex. 

347. Parent Plaintiffs have a sincere religious belief that God created all people in His image as male and female. Genesis 1:27; Genesis 5:2. 

348. Parent Plaintiffs believe that a person’s sex is binary and fixed at conception. They do not believe a person can change their sex....

412. Student Plaintiffs’ sincerely held religious beliefs require them to avoid intimate exposure, or the risk of intimate exposure, of their own bodies or intimate activities to the opposite sex.

413. Student Plaintiffs’ sincerely held religious beliefs also require them to avoid intimate exposure, or the risk of intimate exposure, to the body or intimate activities of someone of the opposite sex....

415. Student Plaintiffs have a sincere religious belief that God created all people in His image as male and female. Genesis 1:27; Genesis 5:2. 

416. Student Plaintiffs believe that a person’s sex is binary and fixed at conception. They do not believe a person can change their sex.

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

Missouri Appeals Court Refers Question of Church's Duty of Supervision to State Supreme Court

 In Doe v. First Baptist Church of Pierce City, Missouri, (MO App., Sept. 2, 2023), a Missouri appellate court described plaintiff's claim:

Plaintiff asserts that FBC, a Southern Baptist religious institution, had a duty to supervise the youth ministries program members, including herself, while they were transported on a church van as part of that program, that FBC breached this duty by failing to either have or follow a policy to protect minors from sexual abuse, and that Plaintiff was injured as a result by the actions of a fellow youth ministries program member....

The court said that a prior state Supreme Court opinion, Gibson v Brewer, would call for dismissal of the case, saying in part:

Returning to the negligence claims at issue in Gibson, we must first address the negligent hiring/ordination/retention and negligent failure to supervise claims.  Our high court observed that “[q]uestions of hiring, ordaining, and retaining clergy . . . necessarily involve interpretation of religious doctrine, policy, and administration.”...  “Such excessive entanglement between church and state has the effect of inhibiting religion, in violation of the First Amendment” and “would result in an endorsement of religion, by approving one model for church hiring, ordination, and retention of clergy.”... Similarly ... “[a]djudicating the reasonableness of a church’s supervision of a cleric—what the church ‘should know’—requires inquiry into religious doctrine” and, as with the negligent hiring/ordination/retention claim, “would create an excessive entanglement, inhibit religion, and result in the endorsement of one model of supervision.” 

The court concluded, however:

We would affirm the summary judgment of the circuit court, but due to the general interest and importance of the issues on appeal, we transfer the case to the Supreme Court of Missouri pursuant to Rule 83.02.

11th Circuit: Barring Use of PA System for Pre-Game Prayers Does Not Violate 1st Amendment

 In Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., (11th Cir., Sept. 3, 2024), the U.S. 11th Circuit Court of Appeals rejected free speech and free exercise claims by a Christian school that was refused the use of a stadium's public address system for a pre-game prayer at the FHSAA state championship football game in which it was playing. The court held that pre-game PA announcements at state championship games are government speech. It also concluded that government control of its own expression does not violate the free exercise rights of private individuals.

Florida Phoenix reports on the decision.

Catholic Diocese Sues Feds Over Rule Change For Religious Worker Visas

Suit was filed last month in a New Jersey federal district court by the Catholic diocese of Patterson, New Jersey and by several Catholic priests who are citizens of foreign countries and are in the United States on R-1 Temporary Religious Worker visas.  The lawsuit challenges a State Department rule change adopted in March 2023 which makes it more difficult for religious workers on R-1 visas to obtain EB-4 special immigrant religious worker permanent resident status ("green card"). The complaint (full text) in Roman Catholic Diocese of Patterson, New Jersey v. U.S. Department of State, (D NJ, filed 8/8/2024) alleges in part:

This civil action asserts that in March of 2023, Defendant-DOS acted arbitrarily and capriciously when it imposed an unfounded and unsupported interpretation of the Act as it relates to visa availability for individuals and subject to the EB-4 preference category and employers who must rely upon the EB-4 preference category for their workers.  The recent and sudden agency action governing the calculation of visa availability and allocation by Defendant DOS was conducted without proper notice, failed to provide for a proper period of comment, exceeded the authority of Defendant-DOS, and directly threatens Individual-Plaintiffs’ ongoing ability to carry out their religious and spiritual vocation.  In doing so, Defendant-DOS acted in a manner certain to disrupt countless religious workers, forcing Individual-Plaintiffs to either violate the terms of their nonimmigrant visa or face imminent and abrupt departure the United States without any knowledge as to when, or even if, Individual-Plaintiffs will return to the United States.

The complaint alleges, among other things, violation of the Religious Freedom Restoration Act and the 1st Amendment's Free Exercise Clause.

Americal Magazine reports on the lawsuit.  North Jersey.com reports that the State Department's reaction to the lawsuit has been a statement that says in part:

[O]nly Congress has the ability to address the imbalance between the limited supply of EB-4 visas and the increasing demand. We recognize the importance of religious ministers and workers as well as their U.S. employers who lead faith-based institutions, and we share your concern about the long wait times for EB-4 visas.

Suit Challenges Nebraska Abortion Rights Ballot Proposal

On August 23, the Nebraska Secretary of State certified two competing abortion related petitions for inclusion on the November ballot-- the Protect the Right to Abortion amendment and the Protect Women and Children amendment. On Aug. 30, an anti-abortion proponent filed a petition in the Nebraska Supreme Court seeking a writ of mandamus requiring the Secretary of State to exclude the Protect the Right to Abortion proposal from the ballot. On the same day, the state Supreme Court granted petitioner leave to commence the action and set an extremely rapid hearing schedule. The state must file an answer by today, September 4, and a hearing is set for September 9. The petition (full text) in State of Nebraska ex rel LaGreca v. Evnen, (NE Sup. Ct., filed 8/30/2024) alleges as its only claim that the initiative proposal violates the single subject rule of the Nebraska constitution. Thomas More Society issued a press release announcing the lawsuit.

Teaching of Evolution Does Not Violate Establishment Clause

In Reinoehl v. Penn-Harris-Madison School Corporation, (SD IN, Aug. 30, 2024), an Indiana federal district court held that teaching the theory of evolution in public schools does not violate the Establishment Clause. The court said in part:

We find that Plaintiffs have failed to allege an Establishment Clause violation here because "it is clearly established in the case law, and perhaps also in common sense, that evolution is not a religion and that teaching evolution does not violate the Establishment Clause." ...

Nonetheless, according to Plaintiffs, "[e]volution promotes positions taken by advocates of Atheism," embodies "all the tenets of atheistic religious belief[,] and fail[s] to follow scientific laws . . . ." Plaintiffs thus "perceive" that the teaching of evolution in public schools "convey[s] a governmental message that students should subscribe to Atheism."... Despite Plaintiffs' assertions to the contrary, the purported similarities between evolution and atheism do not render the teaching of evolution in public schools violative of the Establishment Clause, which has never been understood to prohibit government conduct that incidentally "coincide[s] or harmonize[s] with the tenets of some or all religions."...

9th Circuit: Title IX's Religious Exemption Does Not Violate Establishment Clause

In Hunter v. U.S. Department of Education, (9th Cir., Aug. 30, 2024), the U.S. 9th Circuit Court of Appeals held that the exemption available to religious educational institutions from Title IX's ban on sex discrimination (including sexual orientation and gender identity) does not violate the Establishment Clause or equal protection guaranties. The court said in part:

Any practice that was “accepted by the Framers and has withstood the critical scrutiny of time and political change” does not violate the Establishment Clause....

Given the dearth of historical equivalents, ... tax exemptions are the most analogous case to Title IX’s statutory exemption.... Absent additional historical evidence—and Plaintiffs point us to none here—the history of tax exemptions near the time of the Founding suggests that the statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning.

Having considered the history of religious exemptions at or near the Founding, the history and tradition test requires us to look next to the “uninterrupted practice” of a law in our nation’s traditions....  The Department identifies a relevant tradition in “modern legislative efforts to accommodate religious practice.” ...

... [T]here is no evidence in the record that the exemption here “was drafted with the explicit intention of including particular religious denominations and excluding others.”...

... Here, when a school claims an exemption, the Department must make two determinations—whether the school is controlled by a religious organization and whether Title IX would conflict with the religious tenets of the controlling organization....  The Department has ... “never rejected an educational institution’s assertion that it is controlled by a religious organization” and “never denied a religious exemption when a religious educational institution asserts a religious objection.” ...

The exemption substantially relates to the achievement of limiting government interference with the free exercise of religion....

Disclosure of Covid Status to Plaintiff's Pastor Did Not Infringe Privacy or Free Exercise Rights

In Fulmore v. City of Englewood, (NJ App., Aug. 30, 2024), a New Jersey appellate court dismissed a suit brought by an employee of the city's Department of Public Works who contended that his rights were violated when, early in the Covid pandemic, the city's health officer disclosed to plaintiff's pastor that plaintiff was supposed to be under quarantine because of exposure to Covid. Plaintiff, who was an associate minister at a Baptist church, had participated in an in-person recording of a religious service without disclosing to other participants that he was supposed to be in quarantine. the court said in part:

Here, plaintiff's claim that Fedorko violated his constitutional right to privacy when he disclosed plaintiff's quarantine status to Pastor Taylor is unavailing.  Fedorko's disclosure to Pastor Taylor occurred on April 10, 2020, in the context of a public health emergency, where COVID-19 "created an immediate and ongoing public health emergency that require[d] swift action to protect not only the City's employees, but the public they [were] hired to serve....

... "Given the scientifically undisputed risk of spreading this deadly virus," defendants' interest in protecting the public health from potential exposure to COVID-19 outweighed plaintiff's privacy interest in his quarantine status....

Rejecting plaintiff's claim that his religious free exercise rights were violated, the court said in part:

Here, even when viewed in the light most favorable to plaintiff, the record is devoid of evidence indicating that Fedorko's disclosure of plaintiff's quarantine status to Pastor Taylor had a "coercive effect" on plaintiff's religious practice....

... At his deposition, plaintiff testified that defendants' actions "changed [his] whole religious belief" and his "whole outlook on church."  He claimed defendants "ruined the relationship" he had had with Pastor Taylor "for the last [twenty-eight] years."...

However, plaintiff acknowledged that since the April 2020 incident, he had not been "barred" from church, nor had he ever received any "texts or messages [from Pastor Taylor] . . . saying [he was not] welcome at the church" or that Pastor Taylor "did[ not] want [plaintiff] to preach there anymore."

11th Circuit Denies En Banc Rehearing in Alabama's Ban on Gender-Affirming Treatment of Minors

In August 2023, the U.S. 11th Circuit Court of Appeals vacated a district court's preliminary injunction against Alabama's ban on hormone blockers and cross-sex hormones to treat minors with gender dysphoria, holding that the statute is only subject to rational basis review. (See prior posting.) Now, in Eknes-Tucker v. Governor of the State of Alabama, (11th Cir., Aug. 28, 2024), a majority of the 11th Circuit voted not to grant an en banc rehearing in the case. However, that decision generated a series of concurring and dissenting opinions spanning 173 pages.

Chief Judge William Pryor concurred in the denial but filed an opinion to respond to the dissenting opinion of Judge Jordan. The Chief Judge said in part:

The doctrine of substantive due process does violence to the text of the Constitution, enjoys no historical pedigree, and offers judges little more than shifting and unilluminating standards with which to protect unenumerated rights.... [U]nelected judges with life tenure enjoin enforcement of laws enacted by elected representatives following regular procedures, all in the name of fundamental rights that the Constitution never names but allegedly secures....

Judge Lagoa filed a concurring opinion, saying in part:

The propriety of the medications at issue is a quintessential legislative question, not a constitutional one.  Judges Jordan and Rosenbaum would have this Court end the debate by judicially fencing off these questions from state legislatures.  But our experience with the intersection of the Constitution and these types of issues suggests that this is a misguided effort. See Roe v. Wade.... 

Judge Rosenbaum’s and Judge Wilson’s dissents also disagree with our equal-protection holding, arguing that the Act discriminates based on sex and transgender status....  But the Act applies equally to everyone regardless of their sex or transgender status.  And transgender status is not a classification protected by the Equal Protection Clause.

Judge Wilson, joined by Judge Jordan, filed a dissenting opinion, saying in part:

This case presents numerous questions “of exceptional importance” worthy of en banc review.... Seeing that this case implicates the contours of substantive due process, fundamental rights, and equal protection, it is difficult to envision issues of greater importance.

Judge Jordan, joined by Judges Rosenbaum and Jill Pryor, filed a dissenting opinion, saying in part:

In this case, the panel characterized the liberty interest in part by asking whether there is a history of recorded uses of transitioning medications for transgender individuals (e.g., puberty blockers and cross-sex hormone treatments) as of 1868, when the Fourteenth Amendment was ratified....

The panel’s decision necessarily means that the fundamental right of parents to obtain medical treatment for their children extends only to procedures and medications that existed in 1868, and not to modern advances like the polio vaccine...,, cardiac surgery..., organ transplants..., and treatments for cancer like radiation ... and chemotherapy...

Judge Rosenbaum, joined by Judge Jill Pryor and in part by Judge Jordan, filed a dissenting opinion, saying in part:

... [P]arents’ liberty interest in directing that their child receive well-established, evidence-based, non-experimental medical treatment, subject to medically accepted standards and a physician’s independent examination and medical judgment, is a fundamental right, “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed”....

We ... receive no medical training in law school.  We don’t go through residencies or fellowships.  We don’t engage in medical research.  And we don’t practice medicine at all.  In fact, many of us went into the law because, among other reasons, we weren’t good at math or science.  Given our lack of medical expertise, we have no business overriding either the medical consensus that transitioning medications are safe and efficacious or clinicians’ ability to develop individualized treatment plans that follow the governing standards of care....

... [T]he Act discriminates based on two quasi-suspect classifications: sex and transgender status.  So either classification requires us to apply intermediate scrutiny.  When we do that, the Act cannot survive.  

Recent Articles of Interest

From SSRN:

• Stephen R. Munzer, Temptation, Sinlessness, and Impeccability, (International Philosophical Quarterly Vol. 63, No. 1, Issue 249 (March 2023)).
• Shamshad Pasarlay & Clark. B. Lombardi, The Constitutional Imagination of the Mujahidin: A History and Translation of Two Constitutions Proposed by Afghan Islamist Militias in the 1990s, (32 Wash. Int'l L.J. 283 (2023)).
• Itamar Mann & Lihi Yona, Defending Jews From The Definition of Antisemitism, (71 UCLA Law Review 2024).
• Michael Bindas, The Once and Future Promise of Religious Schools for Poor and Minority Students, (November 17, 2022).
• Alvin Velazquez, Instructing AI Through the Exercise of Labor's Solidarity: A Christian Perspective, (Indiana Legal Studies Research Paper No. 530 (2024).
• Gregor Puppinck, The Development and Contestation of Humanae Vitae, (June 15, 2023).
• Gregor Puppinck, The Five Paths of Conscientious Objection in Medicine, (December 08, 2022).
• Max Matthew Schanzenbach & Kim Yuracko, Promising the First Amendment: (De)Regulating Speech in Higher Education, (August 05, 2024).

6th Circuit Reverses Dismissal of Muslim Inmate's Religious Accommodation Complaints

 In Mustin v. Wainwright, (6th Cir., Aug. 27, 2024), the U.S. 6th Circuit Court of Appeals reversed the dismissal of free exercise, RLUIPA, equal protection and certain retaliation claims brought by a Muslim inmate who objected to the manner in which space was made for religious services and objected to inadequate Ramadan meals.  The court said in part:

Mustin contends that defendants ... substantially burdened his ability to attend Jummah and Taleem by (1) “constantly” moving Jummah and Taleem to small rooms that could safely accommodate only half of the attendees, and (2) inconsistently allowing inmates to attend Taleem services and sending inmates back to their cells to accommodate other religious events.... Mustin properly alleged that defendants ... substantially burdened Mustin’s ability to safely attend Jummah and Taleem by forcing him to put his personal safety at risk in order to fulfill his religious obligations by attending services in a room packed with roughly twice the number of people it can safely house....

At this early stage, Mustin has alleged facts sufficient to support an inference that defendants’ provision of expired, offending, and otherwise nutritionally insufficient meals during Ramadan pressured him to violate his religious beliefs or face potential malnutrition.  Mustin alleges that he was served raw food and expired drinks in his breakfast bags, and that his dinner bags often contained pork-based main courses, which Muslims are forbidden from eating.... Mustin plausibly alleged that the non-expired and non-pork-based foods he received during Ramadan were insufficient in quantity and nutrition quality to meet his nutritional needs.

PA Supreme Court: Yard Signs Responding to Neighbors' Antisemitism Protected by Pennsylvania Constitution

In a 4-2 decision in Oberholzer v. Galapo, (PA Sup. Ct., Aug. 20, 2024), the Pennsylvania Supreme Court, relying on the broad free speech protections in Art. I, Sec. 7 of the Pennsylvania Constitution, dissolved an injunction issued by a trial court in an unusual dispute between neighbors. As described by Justice Dougherty's majority opinion:

In November 2014, a brewing feud between the neighbors over landscaping issues reached a boiling point after Dr. Galapo confronted Mr. Oberholzer about a resurveyed property line and Mrs. Oberholzer responded by calling him a “fucking Jew.”  This prompted the Galapos in June 2015 to erect the first of many signs primarily displaying anti-hate and anti-racist messages “along the back tree-line directly abutting [the Oberholzers’] property line, pointed directly at [the Oberholzers’] house, and in direct sight of [other] neighbors’ houses.” ...  All told, the Galapos posted twenty-three signs over a years-long span, during which the neighbors continued to quarrel over other minor nuisances.

Among other things, the Oberholzers sued claiming the signs placed them in a false light. The majority concluded:

We hold the Galapos engaged in protected speech when they posted in their own yard stationary signs decrying hatred and racism.  We further hold the Oberholzers failed to prove that substantial privacy interests are being invaded in an essentially intolerable manner by the Galapos’ pure residential speech.  As such, Article I, Section 7 of the Pennsylvania Constitution and this Court’s precedents precluded the trial court from enjoining the signs, regardless of the nature of the torts alleged.  The injunction imposed an improper prior restraint on speech in violation of Article I, Section 7.

Justice Wecht filed a dissenting opinion, saying in part:

The Galapos argue that the present injunction violates the no-injunction rule, that it is an unconstitutional prior restraint on speech, and that it fails strict scrutiny.  These arguments are unpersuasive.  The no-injunction rule does not exist in Pennsylvania.  Moreover, even if it did exist, it would not apply here because the equity court did not purport to enjoin defamatory speech.... The argument that the injunction constitutes a prior restraint is also mistaken because the injunction does not restrict speech in advance of its publication.  Finally, the injunction withstands application of strict scrutiny because it is narrowly tailored to serve a compelling state interest.

Justice Brobson also filed a dissenting opinion, saying in part:

I would conclude that the trial courts of this Commonwealth have the authority to enjoin residential speech protected by Article I, Section 7 of the Pennsylvania Constitution that rises to the level of a private nuisance and disrupts the quiet enjoyment of a neighbor’s home.  I would further find that the Injunction is content neutral, furthers the Commonwealth’s significant interest in protecting the privacy and quiet enjoyment of the Oberholzers’ home, and burdens no more of the Galapos’ speech than necessary to protect the Oberholzers’ right to residential privacy.

AP reports on the decision.

Churches Challenge Constitutionality of Johnson Amendment

The Johnson Amendment which prohibits 501(c)(3) tax-exempt organizations from supporting or opposing political candidates was challenged this week as being unconstitutional as applied to churches. The complaint (full text) in National Religious Broadcasters v. Werfel, (ED TX, filed 8/28/2024) alleges in part:

Churches are placed in a unique and discriminatory status by the IRC. Under § 508(c)(1) of the IRC, churches need not apply to the Internal Revenue Service [“IRS”] to obtain recognition of their 501(c)(3) status. The IRC places them automatically within the ambit of 501(c)(3) and thereby silences their speech, while providing no realistic alternative for operating in any other fashion. Churches have no choice; they are automatically silenced vis-à-vis political candidates.

Hundreds of newspapers are organized under § 501(c)(3), and yet many openly endorse political candidates....

Many 501(c)(3) organizations engage in electoral activities that are open, obvious, and well known, yet the IRS allows some, but not all, such organizations to do so without penalty. Again, Plaintiffs believe that such churches have the constitutional right to engage in such participation; they simply want the same right for themselves. ...

The IRS operates in a manner that disfavors conservative organizations and conservative, religious organizations in its enforcement of § 501(c)(3). This is a denial of both religious freedom and equal protection....

Plaintiffs contend that the Johnson Amendment, as written and as applied by the IRS, violates the First Amendment’s Free Speech Clause, Free Exercise Clause, the Fifth Amendment’s Due Process Clause (Void for Vagueness), the Fifth Amendment’s Due Process Clause (Equal Protection), and the Religious Freedom Restoration Act.

Catholic News Agency reports on the lawsuit.

Pregnancy Resource Center Sues Massachusetts Officials Over Opposition Campaign

Suit was filed last week in a Massachusetts federal district court by Your Options Medical Center, an anti-abortion pregnancy resource center, against Massachusetts officials and an abortion rights foundation, alleging deprivation of free speech, free exercise and equal protection rights. The complaint (full text) in A Woman's Concern v. Healy, (D MA, filed 8/19/2024), alleges in part:

This case is necessitated by an overt viewpoint-based campaign of harassment, suppression, and threats against YOM and other PRCs. Directed by Governor Healey and the other Defendants, this campaign involves selective law enforcement prosecution, public threats, and even a state-sponsored advertising campaign with a singular goal – to deprive YOM, and groups like it, of their First Amendment rights to voice freely their religious and political viewpoints regarding the sanctity of human life in the context of the highly controversial issue of abortion. 

Defendants’ retaliation and selective-enforcement campaign accuses YOM and other PRCs of being a public health threat, of carrying out false and misleading advertising, and of other falsehoods, while actively urging citizens to report PRCs to State law enforcement....

It is well-settled that viewpoint discrimination applied through threats of legal sanctions and other means of coercion and intimidation violates the United States Constitution where, as here, such measures chill protected First Amendment activities. That very kind of selective censorship scheme is evidenced here. Moreover, the threats in this case were targeted explicitly against the religious speech of PRCs in violation of the Free Exercise Clause.

Catholic News Agency reports on the lawsuit.

5th Circuit Reopens Lipan-Apache's Suit Objecting to Park Modifications

 In 2021, Texas voters approved an amendment to the state constitution that provides:

This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.

The amendment was a response to orders during the Covid pandemic that limited the size of gatherings for religious services. (Background.)

In Perez v. City of San Antonio, (5th Cir., Aug. 28, 2024), the U.S. 5th Circuit Court of Appeals certified to the Texas Supreme Court the question of whether this ban is an absolute one, or whether the amendment merely imposes a strict scrutiny requirement on any limitation. The issue arises in a suit by members of the Lipan-Apache Native American Church who claim that improvements to a park that include tree removal and rookery management destroy their ability to use a sacred site in the park for certain religious ceremonies. In a prior decision, the 5th Circuit rejected plaintiffs' claim under the Texas Religious Freedom Restoration Act. It then held that plaintiffs had not adequately briefed the question of whether the Religious Services Amendment to the constitution covers a compelled preservation of spiritual ecology. (See prior posting.) Plaintiffs filed a motion for a rehearing, and in this week's decision the panel withdrew its original opinion and certified the question of the meaning of the Religious Services Amendment to the Texas Supreme Court, saying in part:

Neither party has cited any cases interpreting this constitutional provision, nor has this court found any. This potentially outcome determinative issue raises novel and sensitive questions....

11th Circuit Reinstates, Pending Appeal, Florida Ban on Gender-Affirming Care for Minors

In Doe v. Surgeon General, State of Florida, (11th Cir., Aug. 26, 2024), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, allowed Florida's ban on prescribing puberty blockers and cross-sex hormones to minors suffering from gender dysphoria to go back into effect, pending appeal of a district court injunction against enforcement of the ban. The district court had concluded that the ban was motivated by anti-transgender animus. (See prior posting.) 

First, the district court likely misapplied the presumption that the legislature acted in good faith when it concluded that the prohibition and regulation provisions, and the implementing rules, were based on invidious discrimination against transgender minors and adults....

... [E]ven if the district court were correct in its animus decision, heightened scrutiny under the Equal Protection Clause does not apply to invidious discrimination based on a non-suspect class, and “[n]either the Supreme Court nor this court has recognized transgender status as a quasi-suspect class.”

The majority ordered an expedited calendar for hearing of the appeal. 

Judge Wilson dissented, saying in part:

First, the district court appropriately recognized the presumption of legislative good faith, but identified sufficient record evidence to support concluding that the act’s passage was based on invidious discrimination against transgender adults and minors....

The district court found that the statute is subject to intermediate scrutiny because it is (1) based on sex and (2) based on gender nonconformity.

Tallahassee Democrat reports on the decision.

3rd Circuit: District Court Did Not Show Compelling Interest in Denying Muslim Inmate Religious Accommodations

In Nunez v. Wolf, (3d Cir., Aug. 27, 2024), the U.S. 3rd Circuit Court of Appeals, in a suit under RLUIPA, held that the district court had not established that the Department of Corrections had a compelling interest in denying a Muslim inmate religious accommodations so that he could consummate his marriage, have ongoing conjugal visits with his wife, engage in congregate prayer with visitors and be circumcised. The court said in part:

To be clear, we are not holding that the DOC’s denials of Nunez’s requests cannot satisfy strict scrutiny if properly supported on remand.  What we do hold is that this determination cannot be made on the current record and that, as we have now clarified the nature of its burden, the DOC should have the opportunity to supplement the record before renewing its motion for summary judgment.

6th Circuit: Off-Duty Police Did Not Violate Dismissed Pastor's Free Exercise Rights

In Couzens v. City of Forest Park, Ohio, (6th Cir., Aug. 27, 2024), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of a suit brought by a church's former pastor against off-duty city police officers who assisted the congregation in physically removing a pastor who had been dismissed from his position by the congregation. The court concluded that the off-duty officers acted reasonably in threatening to arrest the pastor if he did not leave the premises. It also concluded that the pastor's free exercise rights had not been infringed, saying in part:

Couzens contends that the Forest Park Defendants interfered with his free exercise of religion when the officers threatened to arrest him during a church service. He relies primarily on Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94 (1952)....

Kedroff’s church-autonomy doctrine, though, guarantees the independence of ecclesiastical bodies, not individuals.... And, unlike in Kedroff, the officers’ actions here did not reflect the state’s preference for one contender for a church’s control over another. Instead, the officers attempted to enforce what, from their perspective, appeared to be a settled matter: Couzens’s removal as IBC’s pastor....

Arkansas Supreme Court Keeps Abortion Rights Measure Off November Ballot

 In Cowles v. Thurston,(AR Sup. Ct., Aug. 22, 2024), the Arkansas Supreme Court in a 4-3 decision held that the Secretary of State properly refused to count signatures collected by paid canvassers on petitions to have an abortion rights amendment submitted to the voters in November. Proponents failed to submit paid canvasser training certifications along with the petitions, and there were insufficient signatures collected only by volunteer canvassers. Proponents claimed that an employee in the Secretary of State's Office told them that filing the certifications was unnecessary.

Chief Justice Kemp dissented contending that the Secretary of State should complete counting the signatures and grant a provisional cure period.  Justice Baker, Joined by Justice Hudson dissented contending that proponents later filing of certifications adequately complied with the filing requirements, saying that "nothing in the statute requires that the certification and the petition be filed simultaneously." She said in part:

In my view, the majority has reconfigured the relevant statute in order to cater the initiative process to the preference of the respondent while this process is the first power reserved for the people. In fact, despite the majority’s acknowledgment that “[t]his court cannot rewrite the statute[,]” the majority has done just that multiple times to achieve a particular result.

AP reports on the decision. [Thanks to Scott Mange and Thomas Rutledge for the lead.]

Australian Court Upholds Gender Identity Discrimination Ban

 In Tickle v Giggle for Girls Pty. Ltd., (Australia Fed. Ct., Aug. 23, 2024), an Australian Federal Court judge upheld the constitutionality of the ban on discrimination on the basis of gender identity in Australia's Sex Discrimination Act. The suit was brought by Roxanne Tickle, a transgender woman, who was denied access to a women's-only online app. The court explained:

The respondents do not accept that a person’s sex can be a matter for self-identification. Correspondingly, they do not accept either the validity or legitimacy of the gender identity discrimination provisions of the SDA....

In about February 2021, Ms Tickle downloaded the Giggle App. The Giggle App had been marketed as being a means for women to communicate with one another in what was described as a digital women-only safe space. Ms Tickle undertook a registration process to gain access to the Giggle App, which including providing information and uploading a self-taken photograph of her face, commonly known as a selfie.

The photograph provided by Ms Tickle to Giggle was assessed by third-party artificial intelligence (AI) software, designed to distinguish between the facial appearance of men and women.... Ms Tickle gained access to the Giggle App.

In the period between February and sometime in September 2021, Ms Tickle had access to the Giggle App’s features and used it to read content posted by other users. In September or early October 2021, Ms Tickle logged on to the Giggle App, but found that she could no longer post content or comment on other users’ posts, or read comments on posts made by other users.... When she attempted to purchase premium features on the Giggle App, she received a “User Blocked” message. Her attempts to contact Giggle via the in-App contact form received no response....

It is most likely that Ms Tickle was denied user access to the Giggle App as a result of a general review process by a natural person of the AI acceptances of registration, rather than by reason of her being singled out....

Law & Religion Australia has an extensive discussion of the decision.

11th Circuit Enjoins New Title IX Rules in 4 States, Pending Appeal

 In State of Alabama v. U.S. Secretary of Education, (11th Cir., Aug. 22, 2024), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, issued an injunction pending appeal barring enforcement in Alabama, Florida, Georgia, and South Carolina of the Department of Education's new rules under Title IX.  The new rules define discrimination on the basis of sex as including discrimination on the basis of gender identity. They also reduce the threshold for concluding that conduct amounts to sex discrimination. The majority pointed out:

Before this action, every court to consider the issue across the nation—seven district courts and two courts of appeals— preliminarily enjoined enforcement of the rule.  The district court here, by contrast, refused to enjoin the rule a day before it was supposed to go into effect.

Judge Wilson dissented contending that plaintiffs have not shown the irreparable injury required for obtaining an injunction. ADF issued a press release announcing the decision.

Anti-Injunction Act Precludes RLUIPA Claim, But Church's Constitutional Claims Move Ahead

 In Resurrection House Ministries, Inc. v. City of Brunswick, (SD GA, Aug. 23, 2024), a Georgia federal district court held that the federal Anti-Injunction Act required dismissal of a RLUIPA lawsuit brought by a Ministry against which the city had filed a nuisance action.  The ministry had attempted to open a shelter for the homeless, to which the city objected. However, the court permitted the Ministry to move ahead with its 1st, 4th, 5th and 14th Amendment claims against the city, concluding that the Younger abstention doctrine did not apply. It concluded that plaintiff had adequately alleged that the nuisance action had been brought against it in bad faith, saying in part:

RHM alleges providing a shelter to needy individuals is a tenet of its Christian religion and, therefore, institution of the temporary emergency shelter is a practice of such religion. And practice of RHM’s religion is constitutionally protected by the Free Exercise Clause.... Therefore, RHM has satisfied its burden under the first prong of the Court’s analysis because it has sufficiently alleged that “the conduct allegedly retaliated against or sought to be deterred was constitutionally protected.”...  

The Court also finds that RHM’s allegations are sufficient to set forth that Defendants’ institution of the Nuisance Proceedings “was motivated at least in part by a purpose to retaliate for or to deter that conduct.”

NY AG Enjoined from Enforcing False Advertising Ban Against Clinics Promoting Abortion Pill Reversal

In National Institute for Family & Life Advocates v. James, (WD NY, Aug. 22, 2024), a New York federal district court preliminarily enjoined New York's Attorney General from enforcing New York's false advertising law against two pregnancy centers that promote abortion pill reversal in their promotional material and on their websites. The court said in part:

In short, a "morally and religiously motivated offering of free services cannot be described as a bare 'commercial transaction.'"... As such, the speech at issue here is not commercial.... . Nothing could be fundamentally less commercial than this speech about how a woman might save her pregnancy....

Because Plaintiffs' speech is noncommercial, restrictions are subject to strict scrutiny.... The State's enforcement of the New York Statutes against pro-life pregnancy centers based on their speech about APR is a content-based restriction, as it "target[s] speech based on its communicative content."... It is also viewpoint-based. The Attorney General targets statements supporting the APR protocol....

At the preliminary injunction hearing, the State conceded that it does not attempt to satisfy strict scrutiny. And the record is devoid of anything to suggest that this standard could be met....

Recent Articles of Interest

From SSRN:

• Hershey H. Friedman, Transformative Concepts: How Revolutionary Ideas from the Torah Shaped Our World, (July 09, 2024).
• Meg Mary Margaret Penrose, Understanding 303 Creative LLC in a Polycentric Constitutional World, (William & Mary Bill of Rights Journal, Vol. 32, No. 4, 2024, pp. 943-57).
• Joshua J. Craddock, Civic Friendship in the Postmodern Polis: Law as Mediator in Shakespeare's Merchant of Venice, (Journal of Law & Civil Governance at Texas A&M (forthcoming)).
• Asma Uddin, Religion and Identity Capitalism, (Wayne Law Review Vol 70.1:303 (2024).
• Kellen Funk, Sect and Superstition: The Protestant Framework of American Codification, (American Journal of Legal History, 2024).
• Anthony Gill, Of Principals, Agents, and Transaction Costs: A Response to d'Avray, (Public Choice. Forthcoming 2025).
• Terence C. Halliday, Freedom Struggles of China’s Christian Rights Lawyers, (September 19, 2023).
• Frederick Mark Gedicks, The Myth of Second-Class Free Exercise, (Villanova Law Review, Vol. 72, 2025).
• Craig B. Mousin, Nonrefoulement: Responding to Asylum-seekers through the Prism of Subversive Stories: A Study of Three Trials of Innocence, (Chapter 11 in: Furthering Interfaith Biblical Scholarship, A Festschrift in Memory of André LaCocque, (Wipf & Stock, 2024)).
• Raphael Cohen-Almagor, Freedom From Religion: Multiculturalism and the Rights of Women and Children, (July 18, 2024).

From SmartCILP:

• Rabea Benhalim, Contract Customization, Sex, and Islamic Law, 108 Minnesota Law Review 1861-1954 (2024).
• Eleni Polymenopoulou, Sharia and Human Rights Law in the Constitutional Framework of Gulf States, [Abstract], 46 Human Rights Quarterly 1-24 (2024).

Knights of Columbus May Move Ahead with Suit for Denial of Permit for Christmas Program

 In Knights of Columbus Council 2616 v. Town of Fairfield, (D CT, Aug. 22, 2024), a Connecticut federal district court allowed the Knights of Columbus to move ahead with free speech, free exercise and equal protection claims when the town denied its Special Event Permit Application to host a Christmas Vigil in a prominent public park rather than a less centrally located one. The court said in part:

... [P]laintiffs have shown that the defendants’ stated reason for denying their 2020 application, i.e. COVID-19 concerns, was pretextual....

Therefore, the motion to dismiss the plaintiffs’ claims to the extent they are based on the 2020 application, on the grounds that denial of the 2020 application was a valid discretionary action by the Town to mitigate a public health emergency, is being denied. ...

The Special Events Permitting Scheme does not satisfy the requirement that it contain adequate standards to guide the official’s decision. It contains no criteria, restraints, temporal limits, or guidelines to which the Commission must adhere when ruling on an application. Nor does it contain a method to appeal the Commission’s determination or require that the Commission furnish justifications for its decisions with respect to applications for Special Events Permits. Rather, the Special Events Permitting Scheme vests the Commission with unbridled discretion....

 Viewing the factual allegations in the light most favorable to the plaintiffs, the plaintiffs have plausibly alleged that the defendants’ actions were content-based. They have alleged facts showing that the Commission permitted other groups to use Sherman Green in a manner that was inconsistent with the reasons the Commission gave for denying the plaintiffs’ applications....

The Hartford Courant reports on the decision.

Supreme Court Refuses to Lift Preliminary Injunction Against DOE's Title IX Changes

 In Department of Education v. Louisiana, (US Sup. Ct., Aug. 16, 2024), the U.S. Supreme Court refused to stay preliminary injunctions that two district courts issued to prevent enforcement of the Department of Education's new rules under Title IX. The new rules, in part, expand the definition of sex discrimination under Title IX to include discrimination on the basis of sexual orientation and gender identity. All the Justices agreed that the injunctions should remain in place as to this portion of the new rules. Justice Sotomayor, joined by Justices Kagan, Gorsuch and Jackson would have allowed other portions of the new rules to go into effect. Liberty Counsel issued a press release announcing the court's decision.

Court Dismisses Church's Suit Over Disaffiliation Request

In North United Methodist Church v. New York Annual Conference, (CT Super. Ct., Aug 14, 2024), a Connecticut trial court dismissed a local church's petition for a declaratory judgment. The local church sought a finding that it submitted its request to disaffiliate from the parent church in "sufficient time" to complete disaffiliation under the Book of Discipline. The court concluded that it would require the court to resolve a question of church policy and administration to resolve this issue. However, the court retained jurisdiction over the church's request for a declaratory judgment as to property rights, its quiet tile claim and its quantum meruit and unjust enrichment claims.

Arizona Supreme Court Keeps Abortion Initiative on the Ballot

In Arizona Right to Life v. Fontes, (AZ Sup. Ct., Aug. 20, 2024), the Arizona Supreme Court rejected challenges to the ballot description of the Arizona Abortion Access Act that will appear on the November ballot. This keeps the abortion rights initiative on the ballot. Politico reports on the decision.

Claim That Deprioritizing Religious Vaccine Exemption Requests Violates Title VII Moves Ahead

 In Desmarais v. Granholm, (D DC, Aug. 16, 2024), a D.C. federal district court refused to dismiss a Title VII complaint by a Department of Energy employee that his request for a religious exemption from the Department's Covid vaccine mandate was given lower priority than requests for medical exemptions. The court said in part:

 Of course, there could well be a legitimate, non-discriminatory reason for such a policy—but that is an inquiry for summary judgment, not for a motion to dismiss.  The court therefore concludes that Mr. Desmarais has plausibly alleged a causal connection between his protected characteristic and DOE’s decision to put his accommodation request “on hold.” 

9th Circuit: Religious-Based Hiring Does Not Bar Christian Group from Participating in Oregon Grant Program

 In Youth 71Five Ministries v. Williams, (9th Cir., Aug. 8, 2024), the U.S. 9th Circuit Court of Appeals issued an injunction pending appeal allowing a Christian organization that mentors at-risk youths to participate in Oregon's Youth Community Investment Grant Program. The state had canceled $410,000 in grants to the organization when it discovered that it only hires those that share its faith in violation of the state's "Certification Rule" that bars grantee from discriminating in its employment practices.  The court said in part:

Although Oregon strictly enforced the Certification Rule against 71Five, it has looked the other way with secular groups that also receive state funding.  The record indicates that the state continues to fund many groups that discriminate—by providing services to only subsets of the population—in violation of the Certification Rule.  For example, a group named Ophelia’s Place continues to receive funds even though it provides services only to “girl-identifying youth.”  And another group called the Black Parent Initiative receives funds, despite only serving African and African American families....

The Free Exercise Clause bars the government from treating religious groups worse than secular ones—but Oregon has apparently done just that in selectively enforcing its Certification Rule against 71Five....

Court Grants Injunction to Jewish Students at UCLA Impeded by Gaza Protests

In Frankel v. Regents of the University of California, (CD CA, Aug. 13, 2024), a California federal district court issued a preliminary injunction in a suit brought by Jewish students at UCLA who were blocked from accessing portions of the campus by pro-Palestinian encampments protesting Israel's retaliation in Gaza. The court said in part:

In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom that it bears repeating, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. UCLA does not dispute this. Instead, UCLA claims that it has no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by third-party protesters. But under constitutional principles, UCLA may not allow services to some students when UCLA knows that other students are excluded on religious grounds, regardless of who engineered the exclusion....

Under the Court’s injunction, UCLA retains flexibility to administer the university. Specifically, the injunction does not mandate any specific policies and procedures UCLA must put in place, nor does it dictate any specific acts UCLA must take in response to campus protests. Rather, the injunction requires only that, if any part of UCLA’s ordinarily available programs, activities, and campus areas become unavailable to certain Jewish students, UCLA must stop providing those ordinarily available programs, activities, and campus areas to any students. How best to make any unavailable programs, activities, and campus areas available again is left to UCLA’s discretion.

Becket issued a press release announcing the decision.

Using Students' Preferred Pronouns Is Not Part of Teacher's Ordinary Job Duties

 In Geraghty v. Jackson Local School District Board of Education, (ND OH, Aug. 12, 2024) an Ohio federal district court ruled in part in favor of a middle-school English teacher's compelled speech and free exercise claims.  Plaintiff resigned under pressure when a school board required her against her religious beliefs to use the preferred names and pronouns of students who were socially transitioning genders. However, the court held that certain issues remain to be decided by a jury.

The court said in part:

For the school, using the students’ preferred names and pronouns carried the message that it supported its students....  And, most importantly, for the students, using their preferred names and pronouns carried the message that the speaker respected their gender identity.... 

So, the question is not whether using preferred names and pronouns was part of Geraghty’s ordinary job duties, but whether it was part of her ordinary job duties to convey (or refuse to convey) the message that those names and pronouns carried.  It was not.  Geraghty was a middle school English Language Arts teacher.... Her job was to teach English to the appropriate state standards....  It was not her job “to teach anything with regard to LGBTQ issues.”....

Under the Pickering-Connick framework, the Court asks two questions: First, was the speech at issue “a matter of public concern?”...  And second, was Geraghty’s interest in remaining silent greater than Defendants’ interest in “promoting the efficiency of the public services it performs through its employees?”...

... [W]hen Defendants compelled Geraghty to use the students’ preferred names and pronouns, they forced her to “wade[] into a matter of public concern.” ... The final question is whether Geraghty’s “interest in” remaining silent on a “matter[] of public concern” outweighs “the interest of [Defendants], as [Geraghty’s] employer, in promoting the efficiency of the public services it performs through its employees.”...

Defendants assert that they have a compelling interest that “teachers teach and do not use their position of trust and authority to impose their religious beliefs.”...

As the diametrically opposed opinions of the parties’ experts demonstrate, “the use of gender-specific titles and pronouns has produced a passionate political and social debate” in this country....  Whether use of student’s preferred names and pronouns creates a safe and supportive environment for students is a factual question a jury should decide after hearing the parties’ expert testimony. 

Accordingly, while the Court concludes that Geraghty’s compelled speech was not pursuant to her ordinary job duties, it denies the parties’ Motions for Summary Judgment as to the Pickering balancing test....

Focusing on plaintiff's free exercise claim, the court said in part:

[W]hile the District’s practice might look neutral and generally applicable, it was ill defined and provided the District a discretionary “mechanism for individualized exemptions.”... Accordingly, it must survive “the most rigorous of scrutiny.”  

9th Circuit: Ministry Has Standing to Challenge Washington Antidiscrimination Law

In Union Gospel Mission of Yakima, Washington v. Ferguson, (9th Cir., Aug. 12, 2024), the U.S. 9th Circuit Court of Appeals held that a Christian Ministry has standing to challenge the constitutionality of the Washington Law Against Discrimination insofar as it bars plaintiff from requiring all its employees to sign a statement of faith and core values.  The statement requires employees to adhere to Christian lifestyle and behavior, including Christian beliefs on marriage and sexuality. However, the court remanded the case for the trial court to consider the issue of prudential ripeness and to consider plaintiff's motion for a preliminary injunction. [Thanks to Thomas Rutledge for the lead.]

RELIGION CLAUSE IS ON A PUBLICATION BREAK FROM AUGUST 12 TO AUGUST 20. NEW POSTS WILL RETURN ON AUGUST 21.

Illinois Governor Signs 3 Bills Protecting Abortion Rights

On Aug. 7, Illinois Governor J.B. Pritzker signed HB4867 (full text) which amends the Illinois Human Rights Act to make discrimination on the basis of reproductive health decisions, including decisions relating to termination of a pregnancy, unlawful discrimination. He also signed HB 5239 (full text) that prohibits the state from assisting out-of-state officials or individuals who are seeking to impose civil or criminal liability on a person or entity for reproductive health care activity that was lawful in Illinois. And he signed HB 581 (full text) which requires hospital emergency rooms to provide stabilizing treatment including abortion when "abortion is necessary to resolve the patient's injury or acute medical condition that is liable to cause death or severe injury or serious illness." Lawndale News reports on the governor's action.