Religion Clause

Monday, January 06, 2025

Louisiana AG Issues Guidance to Schools on Posting the Ten Commandments in Classrooms

Last week, Louisiana Attorney General Liz Murrill issued Guidance (full text) to public schools on implementing the state's new Ten Commandments Law that requires display of the Ten Commandments in each public-school classroom. The Guidance requires posting only if the displays themselves or funding for the displays are donated. The Guidance includes four separate thematic posters that pair the Ten Commandments with other pictures or texts. The Attorney General says that these assure the constitutionality of the displays. Schools may choose any of the posters. The themes of the posters are The House of Representatives & the Lawgivers; The Supreme Court & the Lawgivers; Religion's Role in American Public Education; and The Supreme Court & the Religion Clauses of the Constitution. Reporting on the new Guidance, the Louisiana Illuminator points out that "The new law does not include any punishment for not posting the display in classrooms." A federal district court has enjoined five Parishes from implementing the new law. (See prior posting.) The state is appealing that decision to the Fifth Circuit. [Thanks to Scott Mange for the lead.]

Church of Satanology's Suit to Display Banner in Schools Moves Ahead

In Stevens v. School Board of Broward County, Florida, (SD FL, Jan. 2, 2025), a Florida federal district court refused to dismiss free exercise, free speech and Establishment Clause claims brought by a minister of The Church of Satanology and Perpetual Soiree whose request to display a religious banner at a high school and a middle school were denied. Schools had permitted other churches to display banners, but refused plaintiff's request to display a banner reading "Satan Loves the First Amendment". The court said in part:

... Reverend Stevens has adequately alleged that he “has engaged in the exercise of religion.”... The school board’s arguments as to the lack of evidence regarding the Church’s tenets are better addressed on a motion for summary judgment or at trial, not on a motion to dismiss. And by preventing Reverend Stevens from displaying these banners, the school board has allegedly “substantially burdened this religious exercise.”...

The Court concludes that Reverend Stevens has stated a claim for viewpoint discrimination.

The school board has arguably created a limited public forum at its schools by allowing some advertisements to be displayed on school grounds. ...

To the extent that Reverend Stevens’s First Amendment claim is brought as an Establishment Clause claim, rather than a Free Exercise Clause claim, the school board has not established that it should be dismissed....

Friday, January 03, 2025

Ban on Firing Employee Because of Reproductive Health Decision May Violate Religious Employer's Expressive Association Rights

In CompassCare v. Hochul, (2nd Cir., Jan. 2, 2025), anti-abortion pregnancy centers and a Baptist Church challenge a New York statute which prohibits employers from discriminating against an employee based on any reproductive health care decision made by the employee or a dependent. Reviewing plaintiffs' expressive association claim, the court said in part:

[A]n entity like CompassCare, or another mission-based organization that advocates for a particular cause or set of beliefs, could plausibly allege that the compelled retention of a specific employee would impair its ability to express its message....

To sustain their challenge to the Act, each Plaintiff must adequately allege (and eventually prove) that the Act threatens “the very mission of its organization.”

However, the court rejected the claim that this provision violates free speech and free exercise rights.

The court also concluded that the law's notice provision which requires employee handbooks to include information on employees' rights under the New York labor law is subject only to rational basis review. The court said in part:

Requiring Plaintiffs to include among these wide-ranging provisions a notice informing employees of their available rights and remedies under a valid statute is not akin to requiring a crisis pregnancy center to distribute a notice about state-sponsored reproductive health services “at the same time [the centers] try to dissuade women from choosing that option.”...

We conclude that the required notification does not interfere with Plaintiffs’ greater message and mission.

ADF issued a press release announcing the decision.

Church's Claims Against Parent Body Can Largely Be Decided on Neutral Principles of Secular Law

In Fifth Avenue United Methodist Church of Wilmington v. North Carolina Conference, Southeastern Jurisdiction, of the United Methodist Church, Inc., (NC App., Dec. 31, 2024), a North Carolina appellate court, in a 2-1 decision, held that the trial court had improperly dismissed a number of claims by a church whose parent body closed its down and seized its property while the church was seeking to disaffiliate from the parent body. The majority said in part:

... Fifth Avenue contends that the trial court has subject matter jurisdiction to consider its property and trust claims because there remains a genuine, secular question of whether it was in a connectional relationship with the UMC concerning the Property. Fifth Avenue maintains as such because none of the deeds pertaining to the Property refer to the trust clauses contained in the BOD [Book of Discipline], “save one green space parcel conveyed in 1986.” After carefully considering our precedents resolving similar disputes, we agree....

Fifth Avenue next argues that even if the Property is subject to a trust under the BOD, the trial court erred in dismissing its claim arising from its right to disaffiliate and retain the Property free of the trust clause under paragraph 2553. Fifth Avenue contends that its breach of contract claim survives dismissal at this stage because it does not require a determination of ecclesiastical issues and can be settled by neutral principles of contract law. Fifth Avenue maintains that Defendants failed to follow the disaffiliation procedures set out in paragraph 2553 by not allowing a church conference vote within 120 days... [W]e agree and hold that the trial court committed error by dismissing Fifth Avenue’s breach of contract claim because determining whether Defendants “acted within the scope of their authority” and “observed the organization’s own organic forms and rules is founded in neutral principles of secular law.” ...

Fifth Avenue next submits that the trial court committed error by dismissing its claims for fraud and constructive fraud because they do not require the court to examine or determine ecclesiastical issues. More precisely, Fifth Avenue contends that whether Defendants colluded to take the Property “under the guise of legitimate action can be determined without delving into the validity of the reasons” provided for closure. After scrutinizing the record and applicable law, we agree....

Judge Arrowood filed an opinion dissenting from much of the majority's holdings, saying in part:

I believe the trial court is permitted to assess whether Fifth Avenue is contractually entitled to disaffiliate following closure, as this can be decided under neutral principles of law. However, I respectfully dissent from the remainder of the majority opinion. I believe the First Amendment church doctrine warrants dismissal of Fifth Avenue’s claims apart from the breach of contract claim and would affirm the trial court’s judgment in those respects.

Thursday, January 02, 2025

4th Circuit: Abstention Doctrine Does Not Apply in Challenge to No Religious Exemption in Vaccination Law

In West Virginia Parents for Religious Freedom v. Christiansen, (4th Cir., Dec. 31, 2024), the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a West Virginia federal district court erred in applying the Pullman abstention doctrine in a suit challenging the constitutionality of West Virginia's vaccine mandate for school children. Plaintiffs contended that the absence of a religious exemption in the mandate violates the 1st Amendment's Free Exercise Clause. The majority said in part:

Pullman abstention is typically reserved for a situation where the state law being presented is unclear and could be interpreted in a way that avoids the federal constitutional issue.... And Pullman abstention is not applicable if the state law is not subject to an interpretation that would render unnecessary the adjudication of a federal constitutional question....

... [T]he only state law presented for decision here is the Vaccination Mandate. On the other hand, the only state law identified as being unclear is the recently adopted [Equal Protection for Religion Act]. And the Plaintiffs are not challenging the Vaccination Mandate under EPRA. Rather, the Plaintiffs pursue their Free Exercise claim solely under the Free Exercise Clause....

... “[A]bstention cannot be ordered simply to give state courts the first opportunity to vindicate the federal claim.”

Judge Berner filed a dissenting opinion, saying in part:

In several cases ..., this court and the Supreme Court have found abstention proper because the challenged law’s relationship with a different state law or constitutional provision was unsettled....

Because the relationship between the Vaccination Mandate and the EPRA is unsettled, this case satisfies the first Pullman requirement.

This case also meets the second Pullman precondition.... There is no requirement that the resolution of the state law issue necessarily moot the federal constitutional issue. Instead, it is enough that questions of state law “may dispose of the case and avoid the need for deciding the constitutional question.”

Wednesday, January 01, 2025

Happy New Year 2025!

Dear Religion Clause Readers:

Happy New Year 2025!

I hope that you continue to find Religion Clause a valuable source of information on the intersection of law, religion and public policy. Recently the total number of posts since Religion Clause began publication in 2005 broke the 25,000 mark .

It has been a busy year for those of us who follow legal developments impacting free exercise rights and church-state separation. As political, cultural and health care issues have increasingly taken on religious significance for many individuals, deciding which developments qualify as ones of religious concern has become a more difficult project. I have generally treated all legislative and judicial developments relating to reproductive rights as ones that I should cover. It has been more difficult to decide which developments regarding transgender rights are ones that implicate religious views.

Another coverage challenge has been created by the explosion in the number of court decisions on denial of religious exemptions from Covid vaccine mandates during the height of the pandemic. Many of these decisions are repetitive in their legal analysis. I have generally moved to covering only appellate court decisions in this area or the rare trial court decision that has a unique twist to it. (This is the same standard that I have applied for a number of years in covering prisoner free exercise cases.)

Religion Clause has always been a niche blog which has particularly attracted lawyers, social scientists, advocacy organization personnel, law school faculty, journalists, clergy, legislative and executive branch staff, students and others working professionally or avocationally interested in church-state relations and religious liberty issues. I invite your feedback on the continued effectiveness of the current format.

The Religion Clause website is the most effective way of accessing posts, ad-free. However, Religion Clause posts are also available through e-mail subscriptions, through X (formerly known as Twitter) and through Facebook, though the format, accompanying advertising, and availability of posts through these channels are handled by third parties over whom I have no control. Hopefully the technical issues that earlier this year interfered with access through Facebook and X are now resolved.

As always, I have attempted to retain Religion Clause's objectivity and its policy of linking to extensive primary source material. I hope that the blog continues to have a reputation for reliability at a time when the objectivity of social media is increasingly called into question.

I also urge you to look at the blog's Sidebar which has dozens of links to useful sites. Scroll down and you will also find resources to subscribe for e-mails giving you access to the latest posts, and access to the X (Twitter) account.

Thank you to all who are loyal readers of Religion Clause-- both those who have followed it for many years and those who have only recently discovered it. I hope you will continue to follow Religion Clause in 2025. Please recommend the blog to colleagues, students and friends who may find it useful and interesting.

I want to extend a special thanks to those of you who have sent me leads to developments of interest. I have tried to acknowledge them in the posts that they generate. To all my readers, feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions.

Best wishes for a New Year that is more peaceful and tolerant than the past year,

Howard Friedman

Tuesday, December 31, 2024

President Jimmy Carter's Views on Religion

Jimmy Carter, 39th President of the United Staes, passed away on Sunday at the age of 100. The White House issued a Proclamation from President Biden formally announcing Carter's death. Religion played an extremely important role in Carter's life. In October 1976, just a month before the election in which he narrowly defeated Gerald Ford, Carter gave a lengthy interview (full text) with leaders of "National Religious Broadcasters" and "World Religious News" that set out his personal views on religion as well as on separation of church and state. Here are a few excerpts:

Q. Mr. Carter, ... can you tell us what Jesus Christ means to you, and to what extent you have dedicated your life to Him?

Governor Carter. The most important thing in my life is Jesus Christ....

I had my deepest and most personal turning to Christ about 10 years ago. 1966 or 1967, when I realized that in spite of the achievement within my church circle, as chairman of the board of deacons, superintendent of the Sunday School, and so forth, that there was an absence of a deep, constant personal relationship with Christ I went to some other states to witness among those who had no church affiliation. During the trips, I felt very personally present to the Holy Spirit and began to be able to testify for the first time with complete sincerity about what Christ meant to me. I found it easy to pray without a special extra effort; it became part of my consciousness, and I felt a sense of peace and security that I had never felt before....

Q. How does your Christian commitment affect political decisions you have made and will make in the future?

Governor Carter. As a Baptist I believe very strongly in the principle of separation of church and state....

As far as my decisions as a political leader, they are affected very heavily by my Christian beliefs. I spent more time on my knees as governor of Georgia than I had spent all the rest of my life put together because I felt the responsibility of many other people's lives. I cling to the principles of the Judeo-Christian ethic. Honesty, integrity, compassion, love, hope, charity, humility are integral parts of any person's life, no matter what his position in life may be. But when someone is elected and trusted by others to help determine one's own life quality, it puts an additional responsibility on the pastor or the schoolteacher or someone who has a public life. So, the Christian or the religious commitment is one that's especially useful tome....

... Not too long ago, I taught a Sunday school lesson about how Paul and Peter reacted to the laws or government of that day. Their admonition was to obey the law and to obey the chosen rulers.

If there was a violation of God's laws by the civil law, to obey God's law is to be willing to accept the punishment administered by the civil law and to try to work to make sure the civil law was compatible with God's law.

Q. In the past, much has been discussed concerning prayer and Bible reading in public schools. In the event you become the President of the United States, what proposals or plans would you have concerning this particular area?

Governor Carter. I don't favor the state, through the public schools, requiring a certain kind of prayer or worship. I believe that ought to be a decision made by the individual student. There ought not to be any prohibition against any self-initiated worship. But the requirement of conformity of worship is something that is contrary to my own beliefs....

9th Circuit: Ministerial Exception Bars Claim by Mashgiach for Wages and Promotion

In Markel v. Union of Orthodox Jewish Congregations, (9th Cir., Dec. 30, 2024), the U.S. 9th Circuit Court of Appeals held that the ministerial exception requires dismissal of a suit alleging wage and hour violations as well as fraud and misrepresentation brought by a mashgiach (kosher food inspector) against the kosher certification agency that employed him. Plaintiff alleged that he never received a promotion and raise that were promised to him and certain compensation for overtime. The court concluded that defendant, the Orthodox Union, is a religious organization and that plaintiff Markel is a "minister." saying in part:

... [I]f OU is a religious organization and Markel is its minister, the exception applies to Markel’s claims, which are all employment related. We address each in turn....

Because only observant Orthodox Jews can serve as a mashgiach for the OU, and because they are necessary to carrying out OU’s religious mission of “ensuring the wide availability of kosher food,” a mashgiach is a minister for purposes of the ministerial exception....

... Markel invites us to create a rule that if a religious purpose did not animate the relevant employment decisions, then the ministerial exception should not apply, and the case should be allowed to proceed to discovery....

Markel’s argument raises two separate, but related issues. First, can issues involving a religious institution ever be bifurcated into being either “religious” or “non-religious?” And second, does a religious institution need to identify a “religious” justification for its employment related decisions to invoke the ministerial exception? The answer to both questions is no....

... Since the same constitutional harm looms regardless of whether an employee-plaintiff’s employment-related claims are against the religious organization or its leaders, we hold that the ministerial exception protects both....

Judge Sanchez filed an opinion concurring in part and concurring in the judgment. Reuters reports on the decision.

Monday, December 30, 2024

Court Denies Preliminary Injunction Against Moratorium Delaying Building of Mosque

In Zikar Holdings, LLC v. Ruhland, (D MN, Dec. 26, 2024), a Minnesota federal district court refused to issue a preliminary injunction to enjoin the city of Lino Lakes from enforcing a one-year moratorium on development of an area of the city where plaintiffs had proposed to build a housing development that included a mosque. Plaintiffs contended that the moratorium was motivated by discriminatory intent in violation of the free exercise clause, RLUIPA and the Fair Housing Act. The court said in part:

Here, Plaintiffs are likely to show that the Moratorium might have delayed Plaintiffs’ ability to build a place of worship and potential future residences near it in the northwest corner of Lino Lakes. The language of the Moratorium, however, places no permanent restrictions on Plaintiff’s ability to build anything and, perhaps more importantly, it places no restriction on Plaintiff’s ability to seek development of a mosque elsewhere in the City or to worship elsewhere in the City. Plaintiffs have therefore not shown that they are likely to prove the Moratorium was a “substantial burden” on their ability to practice Islam....

On this evidence, the Court believes a reasonable juror could infer that the Moratorium was pretextual. However, the evidence presented at this stage, prior to discovery, is not so strong that it satisfies the heightened Rounds standard. The motives and beliefs of the council members, as well as the basis for the timing of the Moratorium decision remain unknown at this stage, and absent additional circumstantial evidence of discriminatory intent, a reasonable fact-finder could conclude that supporting the Moratorium reflected the importance of complying with the 2040 Plan and prudent infrastructure and resource planning. Thus, the Court concludes that this factor is neutral, weighing neither in favor of nor against granting Plaintiffs’ preliminary injunction motion.....

Saturday, December 28, 2024

White House Releases National Strategy to Counter Islamophobia and Anti-Arab Hate

Earlier this month (Dec. 12), the White House released a U.S. National Strategy to Counter Islamophobia and Anti-Arab Hate (full text). The 67-page document says in part:

Islamophobia is hatred, discrimination, or bias directed at Muslims or those perceived to be Muslim. It can have a profound negative impact on people of all ages and backgrounds, threatening their personal safety and their ability to fully exercise their constitutional rights. This Strategy also seeks to counter hate targeting Arab Americans because they are Arab. It is important not to conflate Muslims with Arabs and Sikhs, who also often experience unique forms of hate, bias, and discrimination because of who they are, not because they are perceived to be Muslims.

This Strategy sets forth actions to counter hate, discrimination, and bias affecting these communities, remaining mindful of their unique experiences. We have listened to community and civil society leaders, as well as subject matter experts from various backgrounds throughout the development of this Strategy, and they have shared both their common and distinctive concerns.

For far too long, it has been common to conflate Arabs and Muslims. As we note in this Strategy, the majority of Arab Americans are not Muslim, and the vast majority of Muslim Americans are not Arab. Arab Americans practice a number of religions, including Christianity and Islam, and they are ethnically and racially diverse. Throughout this Strategy, we identify unique challenges facing Arab Americans and emphasize the importance of avoiding conflation with other communities, even as we put forward a number of common strategies to address many forms of hatred.

AP reported on the release of the National Strategy.

Friday, December 27, 2024

EEOC Sues Employer for Refusal to Grant Religious Accommodation to Covid Vaccine Mandate

The EEOC announced yesterday that it had filed a Title VII lawsuit against the North Carolina-based Rex Healthcare, Inc. for refusing to grant a religious accommodation to an employee who objected to receiving the Covid vaccination. According to the EEOC:

[I]n 2021 Rex Healthcare implemented a policy mandating that all employees receive a COVID-19 vaccination unless they were granted an exemption because of their religious beliefs or a disability. The charging party in the EEOC’s suit, who worked remotely, requested a religious exemption in accordance with the policy. Even though the employee had previously been granted an exemption from being required to take the flu vaccination based on her religious beliefs, the request for an exemption from the COVID-19 vaccination was denied.

The employee submitted multiple follow up requests with additional explanations of her religious beliefs in support of her request. Despite the employee articulating a sincerely held religious belief, Rex Healthcare denied the employee’s accommodation requests and subsequently fired her for failing to comply with the company’s COVID-19 vaccine mandate.

Thursday, December 26, 2024

Top 10 Religious Liberty and Church-State Developments of 2024

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year. My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention. With each pick, I link to one or a few of numerous postings on the topic. The selection of top stories obviously involves a good deal of subjective judgment. Indeed, as religion, culture and politics increasingly overlap, there are even questions about whether certain developments should be seen as "religion" stories at all. I welcome e-mail comment at religionclause@gmail.com on my choices. Here are my Top Ten picks:

1. Title VI investigations by the Department of Education and Title VI lawsuits by Jewish students proliferate as the continuing Gaza war triggers antisemitic and anti-Zionist demonstrations on campuses across the country.

2. States increasingly ban gender-affirming care for minors.

3. Voters in 7 states approve abortion rights ballot measures; proposals lose in 3 states.

4. Religion in public schools roars back as an issue: Bibles in the classroom, school chaplains, 10 Commandments in classrooms, released time programs.

5. Supreme Court punts on two sensitive issues: FDA approval of abortion pills (lack of standing), and whether federal law on emergency room care pre-empts state abortion bans (cert. improvidently granted).

6. Mixed results in suits by teachers who claim religious right to refuse to call students by their preferred pronouns as courts enjoin Title IX rules that protect transgender students from discrimination in schools.

7. Oklahoma Supreme Court says religious charter school is unconstitutional.

8. Indiana appellate courts say state's Religious Freedom law is violated when women are prohibited by from obtaining an abortion that their religious beliefs direct them to obtain.

9. Alabama Supreme Court says wrongful death statute covers destruction of frozen embryos. Legislature quickly reverses that result.

10. Dozens of cases brought by employees who were denied religious exemptions to Covid vaccine mandate continue to work their way through the courts with mixed results.

Wednesday, December 25, 2024

Christmas Greetings from National Leaders

President Biden yesterday issued Christmas greetings on X (formerly Twitter), saying:

This Christmas Eve, my wish for you and your family is that you take a few moments of quiet reflection and find that stillness that's at the center of the Christmas story.

May you find peace in this silent night. And warmth from those surrounding you.

Canadian Prime Minister Justin Trudeau also issued Christmas greetings yesterday, saying in part:

As we reflect on the past year and look to the future, let us continue to show love and kindness – to ourselves and to those in need. Let us also take a moment to thank those who give so much of themselves to make Canada the place we are proud to call home, including the brave members of our Canadian Armed Forces, the dedicated first responders and essential workers, and the countless volunteers. Thank you, to all of you.

Here is United Kingdom Prime Minister Keir Starmer's Christmas message in which he said in part:

Because as Christians celebrate the birth of Jesus Christ, the Christmas story reminds all of us to reach out to one another. To care for one another. And to look after those around us.

This Christmas, I will be hoping for peace, particularly in the Middle East as the birthplace of the Christmas story.

I’ll be looking towards a better, brighter future for every person and celebrating the joy and wonder that Christmas brings.

Tuesday, December 24, 2024

HIPPA Rule Barring Reporting of Legal Abortions to Out-of-State Enforcement Authorities Is Preliminarily Enjoined

In April of this year, the Department of Health and Human Services adopted new privacy rules under HIPPA designed to protect women (and those who assist them) who travel out of state for an abortion that is not legal in their state of residence. The rules prohibit doctors, clinics and insurance companies from disclosing information about patients' reproductive health care that is lawful where provided when the information is sought by the patient's home state for the purpose of an investigation that may lead to civil or criminal liability there. (See prior posting.) In Purl v. U.S. Department of Health and Human Services, (ND TX, Dec. 22, 2024), a Texas federal district court issued a preliminary injunction barring enforcement of the rule against the physician and the clinic that are plaintiffs in the suit. The court held that the HHS rule violates a provision of HIPPA protecting state rules requiring reporting of child abuse. The court said in part:

Congress mandated that HIPPA cannot be "construed to invalidate or limit the authority, power, or procedures established under any law providing for the reporting of disease or injury, child abuse, birth, or death, public health surveillance, or public health investigation or intervention." ...

Plaintiffs argue that the 2024 Rule "unlawfully limits disclosures about child abuse" to states like Texas..... They aver HHS limits such disclosures by curtailing doctors' ability to freely report suspected "child abuse" and instead forces them into a "labyrinth of criteria" to determine what can and cannot be disclosed....

The 2024 Rule "limits" practitioners from reporting "child abuse" in several ways. It requires "covered entities" to determine whether the relevant "reproductive healthcare" was "lawful" under the circumstances it was acquired....

But, of course, many "covered entities" are not prepared or equipped to make nuanced legal judgments....

Again, even if a more nuanced reading of the 2024 Rule allowed child-abuse reporting to Texas CPS, a nonlawyer licensed physician is not equipped to navigate these intersecting legal labyrinths. And it is precisely such restraints and impediments that Congress forbade when it comes to child-abuse reporting.

Ministerial Exception Doctrine to Development Director's Suit Against Holocaust Education Organization

In Lavy v. American Society for Yad Vashem, (CD CA, Dec. 19, 2024), a California federal district court refused to find that the ministerial exception doctrine requires dismissal of a pregnancy discrimination and retaliation lawsuit against an organization dedicated to preserving the legacy of Holocaust victims. The court said in part:

... [T]he record does not support a finding that Plaintiff is a “minister” within the meaning of the ministerial exception. The record does not show that Plaintiff’s job duties required her to be of any specific faith, to educate anyone on a particular religion’s customs or laws, to spread a religious message, or to oversee or participate in any religious ceremonies. Plaintiff’s primary job duty throughout her employment with Defendant was fundraising development....

Defendant does not provide either evidence or legal authority demonstrating that its mission of historical education and memorialization moves it under the broad umbrella of “religious institutions” for purposes of the ministerial exception. Rather, the Court concludes that Plaintiff has raised a genuine dispute that Defendant operates primarily as a fundraising organization. For example, Defendant has not offered any evidence that its bylaws or certificate of incorporation set forth any religious purpose....

The court similarly found that defendant did not show that it qualifies for the religious corporation exemption from California's anti-discrimination law.

Monday, December 23, 2024

Court Enjoins Most of Missouri's Abortion Restrictions, But Clinics Still Impeded from Reopening

In Comprehensive Health of Planned Parenthood Great Plains v. State of Missouri, (Cir. Ct., Dec. 20, 2024), a Missouri state trial court issued a preliminary injunction barring enforcement of many of Missouri's abortion restrictions. The court found that many of the state's restrictive laws, including the state's total ban, gestational age ban and reasons ban, to be unenforceable under the Right to Reproductive Freedom constitutional amendment approved by Missouri voters in November. However, the court refused to enjoin certain existing abortion regulations, finding that plaintiffs had not shown a likelihood of success in challenging these. Among the provisions that remain in effect are the abortion facility licensing requirements, the requirement for in-person appointments and the requirement that only physicians perform abortions. In a press release, Planned Parenthood said that some of the restrictions that remain in effect preclude it from beginning to again offer abortion services, saying in part:

... [T]he practical effect of the decision is that no health center in the state can restart abortion services because none has an abortion license, or can get one under the state’s draconian requirements. The vast majority of Planned Parenthood health centers cannot comply with the medically irrelevant size requirements for hallways, rooms, and doors—and no health centers are able to comply with an equally irrelevant, invasive vaginal exam for patients seeking medication abortion. Plaintiffs will continue to fight to see that these restrictions are enjoined.

[Thanks to Thomas Rutledge for the lead.]

Sunday, December 22, 2024

ED Withdraws Notice of Proposed Rulemaking on Transgender Students on Sports Teams

In a Notice (full text) to be published in the Federal Register on Dec. 26, the Department of Education withdrew a Notice of Proposed Rulemaking under Title IX on Sex-Related Eligibility Criteria for Male and Female Athletic Teams. The Rulemaking Notice was originally published 17 months ago. The proposed rule would have provided that criteria preventing a transgender student from participating on a team consistent with the student's gender identity would need to be substantially related to an important educational objective, and would need to minimize harms to the affected transgender students, The Department received more than 150,000 comments on the Proposed Rule during the 30-day comment period. In withdrawing the rule, DOE said:

In light of the comments received and ... various pending court cases, the Department has determined not to regulate on this issue at this time.

Saturday, December 21, 2024

Ohio Legislature Passes Bill Requiring Released Time Programs and Providing Parents' Bill of Rights

On Dec. 18, the Ohio legislature gave final approval to House Bill 8 (full text) which includes a Parents' Bill of Rights and a provision requiring school boards to adopt a released time program, defined as "a period of time during which a student is excused from school to attend a course in religious instruction conducted by a private entity off school district property." Ohio law has previously made released time programs permissible rather than mandatory. The bill also adds a provision requiring schools to cooperate with sponsoring entities to identify a time during the school day for released time programs.

The parental rights portions of the bill include provisions requiring that parents be given the opportunity to review any instructional material that includes sexuality content. No sexuality instruction is permitted before 4th grade. The bill also requires notification to parents of changes in counseling services provided to their children, including any request by a student to identify as a gender that does not align with the student's biological sex. Numerous provisions call for parental involvement in other health care services provided by schools to their children. Once the legislature forwards the bill to the governor, he will have 10 days to sign or veto the bill. Ohio Capital Journal reports on the bill. [Thanks to Scott Mange for the lead.]

Friday, December 20, 2024

House Republicans Release Report on Antisemitism

Yesterday, Speaker Mike Johnson and Republican leadership released the 42-page U.S. House of Representatives Staff Report on Antisemitism. (Full text). The Report says in part:

The House-wide investigation has uncovered deeply troubling realities about how antisemitism has been allowed to fester unchecked, including in universities and institutions across the country, with little to no accountability or oversight to prevent its continued spread. The events of the past year have laid bare the systemic failures of many universities, other nonprofit organizations, public officials, higher education administrators, and the federal government in addressing antisemitism – a pervasive issue they can no longer ignore.

The findings expose a disturbing pattern of defensiveness and denial among institutions. Rather than confronting the severity of the problem, many institutions have dismissed congressional and public criticism and abdicated responsibility for the hostile environments they have enabled. This refusal to acknowledge or address the issue has allowed antisemitism to take root and thrive in spaces that contravene the values of this great nation.

The House-wide effort has culminated in a set of recommendations for schools, Congress, and the executive branch to consider. These actionable steps are designed to ensure that the rising tide of antisemitism is confronted and eradicated at its core. By holding institutions accountable and fostering an environment of responsibility, these measures aim to restore safety and respect for Jewish Americans across the country.

House Committee Holds Hearing on Biden Administration's Use of the FACE Act

On Wednesday, the House Judiciary Subcommittee on the Constitution and Limited Government held a hearing titled Revisiting the Implications of the FACE Act: Part II. The hearing focused largely on whether the current administration has applied the Freedom of Access to Clinics Act unequally, and on the impact of the Dobbs decision on FACE. A video of the hearing and links to witnesses' prepared statements are available at the Judiciary Committee's website.

Yeshiva Denied Preliminary Injunction Against Zoning Enforcement

In Anash, Inc., d/b/a Wyoming Valley Yeshiva v. Borough of Kingston, (MD PA, Dec. 19, 2024), a Pennsylvania federal district court refused to grant a preliminary injunction to an Orthodox Jewish Yeshiva whose property was condemned because it was being used for a school and dormitory in violation of zoning ordinances. The court concluded that plaintiff was not suffering irreparable harm, and that it was not likely that plaintiff would succeed on the merits of its challenge to the relevant zoning ordinance. The court said in part:

Plaintiffs also provide no support for their assertion that Rabbi Hellinger’s inability to access the Properties impairs his religious freedom, ability to act as a religious leader to others, or others’ freedoms. Defendants are not refusing to allow Rabbi Hellinger to practice his religion in any manner or gather with members of his congregation in any location other than the Properties.... Plaintiffs concede that they have been able to secure temporary alternative locations to gather to study Torah and engage in religious activities.... While Plaintiffs testified that the temporary or alternative locations do not allow for the same level of participation or consistency, the Court does not find that such imperfections show “irreparable harm.”...

Importantly, Plaintiffs have refused to engage in any sort of efforts to compromise or come to a resolution with the Borough....

The parties agree that the seminal issue for Plaintiffs’ religious discrimination claims, asserted under RLUIPA, the First Amendment, and the Equal Protection Clause, all require this Court to determine if Plaintiffs can show evidence that the Zoning Ordinance restricts their freedom of religion in some way, that Defendants’ actions were somehow motivated by animus, or that Plaintiffs were treated differently than similarly situated individuals based upon their religion.... Plaintiffs have not established any of these scenarios....

Plaintiffs can and have practiced their religion in alternative locations and may, but have not, apply for a variance to use the Properties as a school, dormitory, or house of worship.... There is no convincing evidence that Plaintiffs’ freedom of religion is legitimately burdened. Further, even if they had shown such evidence, the Zoning Ordinance is the least restrictive manner of furthering a compelling government regulatory interest in health and safety,...

Ecclesiastical Abstention Doctrine Requires Dismissal of Pastor's Allegations of Sham Investigation to Oust Him

In Weems v. Association of Related Churches, (MD FL, Dec. 19, 2024), a Florida federal district court dismissed on ecclesiastical abstention grounds a suit alleging tortious interference and conspiracy brought by Charles Weems, the former senior pastor and co-founder of Celebration Church and by his wife, the other co-founder. Plaintiffs allege that defendants hatched a plan to oust him as senior pastor because his vision for the church would lead to reduced financial contributions to defendant's church planting activities. Weems alleged that, based on manufactured evidence, the church initiated a sham investigation of him to determine if he had engaged in improper financial practices and had failed to fulfill his duties as Senior Pastor. Targeting of Weems eventually led to his resigning. The court said in part:

... [W]hile Plaintiffs frame their claims as tortious interference and conspiracy, these claims cannot be decided without resolving whether Celebration Church investigated Pastor Weems for legitimate religious reasons, or because of the tortious conduct of Defendants.... Such an inquiry would result in the Court entangling itself in matters of “theological controversy, church discipline, [and] ecclesiastical government,” which the ecclesiastical abstention doctrine squarely prohibits....

Thursday, December 19, 2024

Indiana Supreme Court Lets Preliminary Injunction Against Abortion Ban When It Violates Religious Beliefs Stand

Last week, the Indiana Supreme Court, by a vote of 3-2, refused to review at this stage in the litigation a preliminary injunction entered by lower courts in a suit claiming that the state's Religious Freedom Restoration Act is violated when plaintiffs are prohibited by Indiana's abortion law from obtaining an abortion that their religious beliefs direct them to obtain. (See prior posting.) In Individual Members of the Medical Licensing Board of Indiana v. Anonymous Plaintiff 1, (IN Sup. Ct., Dec. 10, 2024), the Order denying the petition to transfer the case to the Supreme Court was not accompanied by a majority opinion. However, Justice Molter joined by Justice Rush filed a concurring opinion saying in part:

This case involves an unusual preliminary injunction—the trial court temporarily enjoined state officials from enforcing the State’s abortion law, but only for a particular group of women who are not pregnant and therefore are not seeking an abortion. The Court of Appeals concluded that the trial court didn’t exceed its discretion by entering a preliminary injunction while the case continues to be litigated. But the panel also directed the trial court to narrow the preliminary injunction on remand. So thus far, this case is not stopping the defendants from doing anything. And we don’t yet know if it ever will, including because the defendants may ultimately prevail in the lawsuit....

I conclude the more prudent course is for the Court to review the case after a final judgment rather than following a preliminary injunction, which remains a work in progress and subject to more deferential appellate review. In essence, it is better that we review the trial court’s final answer rather than its first guess....

Justice Slaughter, joined by Justice Massa, filed a dissenting opinion, saying in part:

Our denial of transfer means the trial court’s “final answer” will lack the benefit of our current thinking. By saying nothing, we may leave the misimpression that the injunction’s only vulnerability is its scope. As my colleagues acknowledge, this case “presents transfer-worthy issues with previously undecided questions of statewide importance”.

Indiana ACLU issued a press release announcing the decision.

Cert Granted on Whether Medicaid Beneficiary Can Challenge Cutoff of Funds to Planned Parenthood

The U.S. Supreme Court yesterday granted review in Kerr v. Planned Parenthood, (Docket No. 23-1275, certiorari granted 12/18/2024) on the question of whether individual Medicaid beneficiaries have a private right of action to enforce the Medicaid Act’s any-qualified provider provision. The case arises from a challenge to South Carolina's termination of Medicaid funding to Planned Parenthood. This was Question 1 presented by the petition for certiorari, the issue on which the Supreme Court granted review. Here is the SCOTUSblog case page with links to pleadings and briefs in the case.

Hospital Employee's Vaccine Objections Were Religious

In Lavelle-Hayden v. Employment Dept., (OR App., Dec. 18, 2024), an Oregon state appellate court held that a hospital respiratory therapist who was denied a religious exemption from the hospital's Covid vaccine requirement should receive unemployment benefits. It held that the state Employment Appeals Board's (EAB) conclusion that the employee's objection to the Covid vaccine was secular or personal in nature, rather than religious, was not supported by substantial evidence. The court said in part:

First, the EAB appears to have overlooked the Supreme Court’s injunction that tribunals ordinarily must refrain from assessing the plausibility of a claim of religious belief, and to have read the record with unreasonable parsimony in view of that standard....

Second, the EAB drew unreasonable inferences from the fact that claimant’s church declined to provide her a letter in support of her exemption request. The EAB inferred that “the fact that claimant’s own religious leader refused to provide a letter weighs to some extent against finding that claimant’s opposition to taking the vaccine was rooted in religion.” The EAB also inferred that the fact “that the leader told claimant it might be ‘too political to get involved’ supports an inference that when claimant asked for the letter, the religious leader regarded claimant’s objection to receiving a vaccine to be based on her political beliefs, not religion.”... But that reasoning ... presupposes that one’s religious beliefs and political beliefs are necessarily mutually exclusive....

... [T]here is no basis on which to sustain the denial of benefits that is consistent with the evidence and Free Exercise Clause.

Wednesday, December 18, 2024

Circuit Court Nominee Says Anti-Muslim Prejudice Derailed His Confirmation

On Monday, Adeel Mangi, President Biden's nominee to fill a vacancy on the U.S. 3rd Circuit Court of Appeals, submitted a letter (full text) to the President acknowledging that the Senate will not confirm his nomination. (See prior related posting.) Mangi would have been the first Muslim to sit on a federal Circuit Court. In his lengthy letter, Mangi attributed his inability to obtain Senate confirmation largely to anti-Muslim prejudice. The letter reads in part:

I saw in America a country where I could succeed based on my professional skill, hard work, and character regardless of my faith or background....

When my nomination then came before the Senate Judiciary Committee, I was prepared to answer any questions about my qualifications, philosophy, or legal issues. I received none. Instead, I was asked questions about Israel, whether I supported Hamas, and whether I celebrated the anniversary of 9-11. Even more revealing, however, was the tone. The underlying premise appeared to be that because I am Muslim, surely I support terrorism and celebrate 9-11.....

The pretext for these questions was that I had agreed to serve on an outside advisory panel for an academic center that was being established at a preeminent New Jersey Law School to combat bigotry and discrimination, including Islamophobia....

After Jewish groups came to my defense, these same attackers pivoted focus to a new absurdity, claiming that I supported the killing of police officers -- silently underpinned, in my view, by the notion that as a Muslim I surely support violence, including against law enforcement....

Resurgent efforts after the election towards confirmation were derailed by the deal in the Senate that denied all circuit nominees a vote....

American Muslims are part of this nation's fabric and will not cower. This campaign was intended to make it intolerable for Muslims proud of their identity to serve this nation. It will fail. Our Constitution forbids religious tests for any Office of the United States and American Muslims will cherish that fundamental American value, even if others apply it only selectively....

Pittsburgh Post-Gazette reports on these developments.

Justice Department Sues Georgia City for Violating RLUIPA

On Monday, the Justice Department filed a lawsuit in a Georgia federal district court against the city of Brunswick, Georgia, alleging that the city violated RLUIPA by attempting to shut down The Well, a hospitality and religious resource center for homeless individuals. The complaint (full text) in United States v. City of Brunswick, Georgia, (SD GA, filed 12/16/2024), alleges in part:

2. Through its campaign to shut down The Well, including a mandatory closure order and a nuisance lawsuit, Brunswick imposed a substantial burden on the religious exercise of FaithWorks, and of The Well’s staff and leadership, without a compelling interest and without using the least restrictive means of achieving that interest, in violation of RLUIPA....

52. Operating The Well is an expression of faith that is substantially burdened by the City’s efforts to permanently close The Well. FaithWorks, which runs The Well, is an extension of the Methodist Church, and providing basic services to the poor and unhoused individuals are cornerstones of FaithWorks’ religious practice. FaithWorks and The Well are led by Reverend Culpepper and his staff of Christian ministers. And at The Well, staff members offer the opportunity for prayer and religious study to those who are interested....

57. Even if a compelling interest was implicated, the City cannot show that shutting down The Well or forcing FaithWorks to adopt new religious leadership is the least restrictive means of achieving the City’s purported interest. The City cannot show that shutting down The Well is necessary to protect safety, particularly when The Well has already adopted procedures that have addressed the City’s purported safety concerns, and has successfully operated under those procedures for over a year.

The Department of Justice issued a press release announcing the filing of the lawsuit.

Tuesday, December 17, 2024

Montana Supreme Court Upholds Preliminary Injunction Against Ban on Gender Affirming Care for Minors

In Cross v. State of Montana, (MT Sup. Ct., Dec. 11, 2024), the Montana Supreme Court upheld a trial court's preliminary injunction against enforcement of Montana's ban on medical or surgical treatment of minors for gender dysphoria. The court said in part:

¶37 The statute’s impact on individual privacy rights triggers strict scrutiny review, which requires the State to demonstrate that “the legislation [is] justified by a compelling state interest and [is] narrowly tailored to effectuate only that compelling interest.” ... Though the State has a compelling interest in “safeguarding the physical and psychological wellbeing of a minor,” a statute implicating their privacy rights must be narrowly tailored to serve that interest.... SB 99 affords no room for decision-making by a patient in consultation with their doctors and parents. The statute is a complete ban, prohibiting individualized care tailored to the needs of each patient based on the exercise of professional medical judgment and informed consent.

¶38 At this stage of the proceedings, the District Court conscientiously weighed the parties’ evidence.... Our role is not to reweigh conflicting evidence or to question a district court’s assessment of the strength of the evidence on a preliminary injunction appeal....

Justice McKinnon, joined by Justice Gustafson, filed a concurring opinion, saying in part:

I write separately because I believe Plaintiffs’ equal protection claim should likewise be addressed by the Court.

Justice Rice dissented in part, saying in part:

¶68 I concur with the Court’s holding affirming the District Court’s entry of a preliminary injunction enjoining SB 99’s medical restrictions. A legislative prohibition of an approved medical procedure must satisfy the high bar of being narrowly tailored to serve a compelling state interest in addressing a bona fide health risk....

¶69 However, it should also be noted that both the medical and legal grounds regarding the subject treatment of minors addressed by SB 99 are moving under our feet, and the status quo itself is becoming a moving target, even as this litigation continues....

¶70 I would reverse the District Court’s enjoinder of the funding prohibition of SB 99...

Daily Montanan reports on the decision.

Monday, December 16, 2024

Sunday, December 15, 2024

SNAP Work Requirement Did Not Violate Free Exercise Rights of Plaintiff's Adult Children

In Light v. Missouri Department of Social Services, (WD MO, Dec. 12, 2024), a Missouri federal district court dismissed a suit challenging the removal of plaintiff's four adult children from the SNAP (food stamp) program because they failed to comply the requirement to register for work and accept suitable employment offers. According to the court:

Plaintiff alleges that participation of her four adult children in the SNAP work program is against their sincerely held beliefs under the Holy Bible New Testament KJV. Specifically, Plaintiff alleges that the work registration and training requirements would cause her children to give up their time to an employer placing them under ownership, and be placed in a position of a servant....

Plaintiff does not cite, and the Court has not found, any indication where the SNAP work and training requirements are not generally applicable.

If a law is neutral and generally applicable courts will apply a rational basis review.... Courts uphold a valid and neutral law of general applicability if it is rationally related to a legitimate governmental purpose even if there is an incidental effect on religious belief.... SNAP was established to raise levels of nutrition among low-income households. To be eligible for the program both households and individuals had to adhere to certain eligibility requirements. This is a rationally related law to a legitimate government purpose of raising levels of nutrition among low-income households....

Saturday, December 14, 2024

Supreme Court Grants Review of Wisconsin's Denial of Unemployment Comp Exemption for Catholic Charities

Yesterday, the U.S. Supreme Court granted review in Catholic Charities Bureau, Inc. v. Wisconsin Labor Review Commission, (Docket No. 24-154, certiorari granted 12/13/2024). (Order List). In the case, the Wisconsin Supreme Court by a vote of 4-3 held that Catholic Charities Bureau and four of its sub-entities are not entitled to an exemption from the state's unemployment compensation law. (See prior posting.) Catholic Charities' petition for certiorari asks the Supreme Court to decide if Wisconsin violated the 1st Amendment's religion clauses when it held that Catholic Charities activities are primarily charitable and secular so that the statutory religious organization exemption is not available to it. The SCOTUSblog case page has links to the pleadings and briefs filed in the case.

Friday, December 13, 2024

India's Supreme Court Orders Stay While It Considers Constitutionality of Place of Worship Act

The Hindu reports on a controversial Order issued yesterday by India's Supreme Court. The Order bars lower courts from accepting new lawsuits or entering orders in pending suits in which Hindu plaintiffs are attempting to reclaim temples destroyed by the Mughal Empire in the 16th century. Eighteen suits involving ten Muslim religious shrines are pending in lower courts. In 1991, India's Parliament passed the Place of Worship Act which prohibits the conversion of any place of worship into a place of worship for a different religion and provides that "the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day." The Supreme Court is currently considering the constitutionality of the Place of Worship Act. It Order is designed to prevent a race in which lower courts attempt to issue orders ahead of the Supreme Court's ruling on the 1991 law. According to The Hindu:

Recently, Chief Justice Khanna’s Bench had to intervene after violence broke out and lives were lost in Sambhal following a local court order to survey the Shahi Jama Masjid site. The civil judge had passed an order on the basis of a suit that the mosque was built on a temple demolished by Mughal emperor Babar in 1526.

Britain Appoints New Special Envoy for Freedom of Religion or Belief

In a press release issued Wednesday, the United Kingdom's Foreign, Commonwealth and Development Office along with its Minister for Human Rights announced that David Smith, MP, has been appointed as the new UK Special Envoy for Freedom of Religion or Belief (FoRB). The press release said in part:

As Envoy, David will champion FoRB for all overseas, promoting tolerance and mutual respect through and alongside the UK’s global diplomatic network and engagements in multilateral fora. David will represent the UK in international discussions on FoRB, working closely with other special envoys, experts and civil society partners. This work supports the UK’s wider human rights efforts, underpinning our belief that human rights are universal.

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

Christian Haven for Sex Trafficking Victims Sues to Receive Federal Funding

Gracehaven, a Christian organization that cares for young survivors of sex trafficking, filed suit this week in an Ohio federal district court challenging the county's refusal to contract with it to receive federal Title IV-E funding for foster care services. The complaint (full text) in Gracehaven, Inc. v. Montgomery County Department of Job and Family Services, (SD OH, filed 12/9/2024), says in part:

12. Because Gracehaven is a Christian ministry that requires all employees to share and live out its religious beliefs, it told Montgomery County that it was not waiving or surrendering its right to employ only those who share its faith by signing the contract, and that it would sign the contract “as is.”

13. The County responded that it would no longer “move forward with the renewal” of the contract with Gracehaven because of the ministry’s religiously based employment practices. ...

15. But Defendants’ position conflicts with federal law, which expressly allows religious organizations to prefer members of their own faith as employees.

18. The United States Supreme Court has clearly established—indeed, has held three times in the past seven years—that the government “violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”

The complaint also alleges that the county's action violates its freedom of expressive association and its religious freedom rights under the Ohio Constitution. ADF issued a press release announcing the filing of the lawsuit.

Thursday, December 12, 2024

Good News Clubs Sue California School District for Access

Suit was filed yesterday in a California federal district court by Child Evangelism Fellowship alleging that a California school district has prevented Good News Clubs from meeting in district elementary schools. The complaint (full text) in Child Evangelism Fellowship NORCAL, Inc. v. Oakland Unified School District Board of Education, (ND CA, filed 12/11/2024), alleges in part:

1. For over two years, Defendant OUSD and its officials have unconstitutionally and impermissibly prohibited CEF from hosting its Good News Clubs in public elementary school facilities owned by OUSD. The Good News Club provides free moral and character training to students from a Christian viewpoint and strategically meets at public schools after school hours for the convenience of parents. CEF’s Good News Club has enriched the emotional, physical, and spiritual well-being of students across OUSD for over a decade.

2. ... CEF was forced to temporarily end its Good News Club meetings in 2020 due to COVID-19 but sought to resume its meetings starting in January 2023. Despite having a long and storied history of providing after-school enrichment programs to students in OUSD, numerous schools within OUSD inexplicably denied the Good News Club access to use OUSD facilities while allowing numerous secular organizations and activities to resume meeting after school hours.

3. CEF seeks a judgment declaring Defendants’ discriminatory use policies unconstitutional, both on their face and as applied, under the Free Speech, Establishment, and Free Exercise Clauses of the First Amendment to the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment. CEF also seeks preliminary and permanent injunctive relief ... together with damages....

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

Texas Supreme Court Hears Arguments on Interpretation of "Religious Service Protections" Constitutional Amendment

Last Wednesday, The Texas Supreme Court heard oral arguments (video of full oral arguments) in Perez v. City of San Antonio. The court is being asked to respond to a certified question from the U.S. 5th Circuit Court of Appeals in a case in which members of the Lipan Apache Native American Church 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. The certified question involves interpretation of a provision in the Texas state Constitution that was adopted in response to restrictions imposed during the Covid pandemic. The constitutional provision prohibits the state and localities from placing limits on religious services, without specifying whether the ban applies even in cases of a compelling governmental interest in doing so. (See prior posting.) The certified question reads:

Does the “Religious Service Protections” provision of the Constitution of the State of Texas—as expressed in Article 1, Section 6-a—impose a categorical bar on any limitation of any religious service, regardless of the sort of limitation and the government’s interest in that limitation?

The Texas Supreme Court has links to pleadings and briefs (including amicus briefs) filed in the case. Oral argument for appellants was presented by a faculty member from the University of Texas College of Law, Law and Religion Clinic. Religion News Service reports on the oral arguments.

Wednesday, December 11, 2024

9th Circuit Hears Oral Arguments on Whether EMTALA Pre-empts State Abortion Ban

Yesterday, the U.S. 9th Circuit Court of Appeals, sitting en banc, heard oral arguments (video of full oral arguments) in United States v. State of Idaho, (9th Cir., 12/10/2024). The case poses the question of whether the federal Emergency Medical Treatment and Labor Act that requires hospitals accepting Medicare to provide stabilizing emergency treatment to patients preempts state abortion bans when such treatment would involve pregnancy termination. Links to the numerous amicus briefs and court orders in the case are available at the Health Care Litigation Tracker. (See prior related posting.)

Supreme Court Denies Cert. In Dispute Over Standing to Challenge School Gender Identity Support Policy

On Monday, the U.S. Supreme Court denied review in Parents Protecting Our Children, UA v. Eau Claire Area School District, Wisconsin, (Sup. Ct., certiorari denied 12/9/2024). In the case, the U.S. 7th Circuit Court of Appeals held that a parents' organization lacked standing to challenge a school district's policy on Gender Identity Support for students. The Supreme Court denied certiorari over the dissents of Justices Kavanaugh, Alito and Thomas. In a dissenting opinion written by Justice Alito and joined by Justice Thomas. Justice Alito said in part:

This case presents a question of great and growing national importance: whether a public school district violates parents’ “fundamental constitutional right to make decisions concerning the rearing of ” their children ... when, without parental knowledge or consent, it encourages a student to transition to a new gender or assists in that process. We are told that more than 1,000 districts have adopted such policies....

I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions....

Advocate reports on the Court's action.

Tuesday, December 10, 2024

Catholic Bishops, Pope Francis Call on President Biden to Commute Sentences of All Federal Death Row Prisoners to Life in Prison

According to Catholic News Agency:

The U.S. Conference of Catholic Bishops (USCCB) on Monday launched a campaign urging Catholics to contact outgoing President Joe Biden and ask him to commute the death sentences of the 40 men currently on federal death row to life in prison.

The USCCB Action Center posted online a statement calling on individuals to urge the President to commute the sentences. The webpage contains a suggested letter to the President and provides a form for sending and posting the request online.

Meanwhile, on Sunday in the Vatican, Pope Francis joined in the call for commutation. In his Sunday Angelus, he said in part:

Today, it comes to my heart to ask you all to pray for the prisoners who are on death row in the United States. I believe there are thirteen or fifteen of them. Let us pray that their sentence be commuted, changed. Let us think of these brothers and sisters of ours and ask the Lord for the grace to save them from death.

Neither the Bishops' statement nor that of the Pope makes mention of President Biden's Roman Catholic faith.

Today Is Human Rights Day

Today is Human Rights Day marking the 76th anniversary of the adoption of the Universal Declaration of Human Rights by the United Nations General Assembly. Article 18 of the Declaration provides:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Yesterday President Biden issued a Proclamation (full text) declaring today to be Human Rights Day, and the week beginning today as Human Rights Week. The Proclamation declares in part:

Today, our country continues to stand with our partners and allies to defend human rights and fundamental freedoms around the world — from combatting threats to silence and intimidate human rights defenders like journalists to championing democracy, fair elections, and the universal human rights to freedoms of association, peaceful assembly, religion, and expression. When crises erupt, we protect civilians from mass atrocities, promote accountability for those responsible for human rights violations and abuses, seek to free political prisoners, and create space for civilian dialogue.

2nd Circuit: Lawyers Have Standing to Challenge Bar Rule That Limits Comments on Transgender and Religious Subject Matter

In Cerame v. Slack, (2d Cir., Dec. 9, 2024), the U.S. 2nd Circuit Court of Appeals held that two Connecticut lawyers have standing to bring a pre-enforcement challenge to a state Rule of Professional Conduct which prohibits lawyers from engaging in harassing or discriminatory conduct against members of various protected classes in the practice of law. It bars harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status. Commentary to the Rule defines discrimination as including harmful verbal conduct directed at an individual that manifests bias or prejudice. The attorneys allege that they often speak out on legal blogs, in articles and legal seminars in ways that could be construed as personally derogatory. According to the court:

Moynahan and Cerame ... allege... that “[t]here are numerous examples of speech” fully protected by the First Amendment that members of the Connecticut bar will be reluctant to engage in, given the fear of a misconduct complaint...." These include using “the pronoun associated with a transgender individual’s biological sex when addressing that individual”; using the term “‘gender preference’ rather than ‘gender orientation’”; ... and publishing cartoons that “satiri[ze] or mock[]” “a religious deity”.....

Appellees argue that the commentary to Rule 8.4, providing that an attorney “does not violate paragraph (7) when the conduct in question is protected under the first amendment to the United States constitution,” ...“unambiguously shows that the Rule does not proscribe protected speech”....

Although the First Amendment carve-out may make it more likely that the SGC will conclude that some speech that would otherwise fall within the text of Rule 8.4(7) is not in fact proscribed, the carve-out is not enough, on its own, to render Appellants’ fear of a misconduct complaint and its professional repercussions “imaginary or wholly speculative” for Article III purposes...

At this stage in the proceedings, Appellants have alleged plausibly that they intend to engage in speech proscribed, at least arguably, by a recently enacted, focused regulation. This gives rise to a credible threat of enforcement.

Reuters reports on the decision.

Monday, December 09, 2024

Teacher Sues After Being Suspended for Having Books With LGBTQ+ Characters in Her Classroom

A third-grade teacher in the southern Ohio village of New Richmond filed suit last week in an Ohio federal district court seeking damages for the 3-day suspension imposed on her for having four books in her classroom's book collection that have LGBTQ+ characters in them. The school claimed that the books violated the District's Policy 2240 on Controversial Issues in the Classroom. The complaint (full text) in Cahall v. New Richmond Exempted Village School District Board of Education, (SD OH, filed 12/2/2024), alleges in part:

12. Plaintiff Karen Cahall maintained these books in her classroom amongst over one hundred other books spanning a wide variety of subject matters in furtherance of her sincerely held moral and religious beliefs that that all children, including children who are LGBTQ+ or the children of parents who are LGBTQ+, deserve to be respected, accepted, and loved for who they are....

50. During the course of her employment with defendant New Richmond, other teachers, staff and administrators have publicly displayed insignias and symbols of their religious beliefs in the presence of students, including but not limited to Christian crosses worn as jewelry, that are more visible to students than the books identified herein, without any consequence....

70. New Richmond Board Policy No. 2240 is unconstitutionally vague ... because it fails to provide fair notice to plaintiff Karen Cahall and other teachers ... of what they can and cannot maintain in their classrooms....

81. By using New Richmond Board Policy No. 2240 to suspend plaintiff Karen Cahall ... based upon a perceived community objection to plaintiff Karen Cahall’s sincerely held moral and religious beliefs, defendant Tracey Miller unlawfully and with discriminatory intent determined that plaintiff Karen Cahall’s religious viewpoints and beliefs were unacceptable, in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.....

87. By using New Richmond Board Policy No. 2240 to suspend plaintiff Karen Cahall ..., defendant Tracey Miller unlawfully and with discriminatory intent determined that plaintiff Karen Cahall’s moral and religious viewpoints and beliefs were unacceptable in comparison to the moral and religious viewpoints of others. in violation of the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution.

Cincinatti Enquirer reported on the lawsuit.