HHS Proposes Rule Expanding Health Care Nondiscrimination Requirements

The Department of Health and Human Services yesterday issued a 308-page rule proposal (full text) titled Nondiscrimination in Health Programs and Activities. The proposed rule would reverse a narrower interpretation of the nondiscrimination provisions in the Affordable Care Act that was reflected in a Trump Administration rule. As summarized by the American Hospital Association:

[T]he proposed rule restores and strengthens civil rights protections for patients and consumers in certain federally funded health programs after a 2020 version of the rule limited its scope and power to cover fewer programs and services. Specifically, HHS said the rule affirms protections against discrimination on the basis of sex, including sexual orientation and gender identity, consistent with the U.S. Supreme Court’s holding in Bostock v. Clayton County, and reiterates protections from discrimination for seeking reproductive health care services.

Bloomberg Law has more on the proposed rule.

International Court Of Justice Says Genocide Case Against Myanmar May Move Ahead

 In The Gambia v. Myanmar, (Intl. Ct. Justice, July 22, 2022), the United Nations International court of Justice rejected various procedural defenses raised by Myanmar to the suit against it alleging genocide against the Rohingya. Among other things, it held that Gambia has standing to bring the lawsuit, saying in part:

112. It follows that any State party to the Genocide Convention may invoke the responsibility of another State party, including through the institution of proceedings before the Court, with a view to determining the alleged failure to comply with its obligations erga omnes partes under the Convention and to bringing that failure to an end.

113. The Court acknowledges that Bangladesh, which borders Myanmar, has faced a large influx of members of the Rohingya group who have fled Myanmar. However, this fact does not affect the right of all other Contracting Parties to assert the common interest in compliance with the obligations erga omnes partes under the Convention and therefore does not preclude The Gambia’s standing in the present case.

AP reports on the decision.

Kentucky Abortion Bans Violate State Constitution

In EMW Women's Surgical Center v. Cameron, (KY Cir. Ct., July 22, 2022), a Kentucky state trial court issued a temporary injunction against enforcement of two statutes restricting abortions-- a six-week fetal heartbeat ban, and a ban on almost all abortions triggered by the overruling of Roe v. Wade. Relying on provisions of the Kentucky state constitution, the court found that the Trigger Ban constituted an unconstitutional delegation of legislative authority to the U.S. Supreme Court, and also concluded that the law is unconstitutionally vague. the court concluded that the six-week ban violates provisions of the Kentucky constitution protecting the right to privacy, equal protection and the prohibition on the establishment of religion and the protection of the free exercise of religion. The court said in part:

Defendants' witnesses ... argue that life begins at the very moment of fertilization and as such is entitled to full constitutional protection at that point. However, this is a distinctly Christian and Catholic belief. Other faiths hold a wide variety of views on when life begins and at what point a fetus should be recognized as an independent human being....

The General Assembly is not permitted to single out and endorse the doctrine of a favored faith for preferred treatment.... There is nothing in our laws or history that allows for such theocratic based policymaking.

AP reports on the decision.

UPDATE: A Kentucky appellate court lifted the injunction while the case is on appeal, and the Kentucky Supreme Court refused to reinstate the injunction but set the case for argument on Nov. 15. An ACLU press release reports on these developments.

Pope Francis Apologizes To Canada's Indigenous Peoples For Residential School System

Pope Francis yesterday in his first public event on his trip to Canada addressed representatives of Canada's Indigenous Peoples to apologize for the policies of cultural destruction and forced assimilation which led to abusive residential schools operated by the Church. In his address (full text), the Pope said in part:

It is necessary to remember how the policies of assimilation and enfranchisement, which also included the residential school system, were devastating for the people of these lands.... I think back on the stories you told: how the policies of assimilation ended up systematically marginalizing the indigenous peoples; how also through the system of residential schools your languages and cultures were denigrated and suppressed; how children suffered physical, verbal, psychological and spiritual abuse; how they were taken away from their homes at a young age, and how that indelibly affected relationships between parents and children, grandparents and grandchildren....

Although Christian charity was not absent, and there were many outstanding instances of devotion and care for children, the overall effects of the policies linked to the residential schools were catastrophic. What our Christian faith tells us is that this was a disastrous error, incompatible with the Gospel of Jesus Christ. It is painful to think of how the firm soil of values, language and culture that made up the authentic identity of your peoples was eroded, and that you have continued to pay the price of this. In the face of this deplorable evil, the Church kneels before God and implores his forgiveness for the sins of her children.... I myself wish to reaffirm this, with shame and unambiguously. I humbly beg forgiveness for the evil committed by so many Christians against the indigenous peoples.

Vatican News reports on the Pope's address.

England's Law Commission Urges Reform Of Law Regulating Weddings

On July 19, the Law Commission of England and Wales released a 452-page report (full text) on reform of English weddings law. The Commission summarized its recommendations:

We recommend comprehensive reform from the foundations up: an entirely new scheme to govern weddings. Our recommendations will transform the law from a system based on regulation of buildings to one based on regulation of the officiant responsible for the ceremony.

Under our recommendations, all couples, as well as all religious groups and (if enabled by Government to conduct weddings) non-religious belief groups, will have the freedom to decide where and how their weddings will take place.

Law & Religion UK has extensive discussion of the proposals.

Cert. Filed In Scientology Arbitration Case

A petition for certiorari (full text) was filed last week in Church of Scientology International v. Bixler, (cert. file 7/19/2022). In the case, a California state appellate court held that former Church of Scientology members were not bound by their agreement to submit all disputes with the Church to the Church's Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the Church. (See prior posting.) Law & Crime reports on the filing.

Recent Articles of Interest

From SSRN:

• SpearIt, Muslims in American Prisons: Advancing the Rule of Law Through Litigation Praxis, (Journal of Islamic Law, Vol. 3 (2022)).
• Richard Luedeman, Voting as a Genuinely Religious Act in a World of Free Exercise Maximalism, (UC Davis Law Review Online (2021)).
• Lael Daniel Weinberger, Is Church Autonomy Jurisdictional?, (Loyola University Chicago Law Journal, Forthcoming).
• Teresa Stanton Collett & Paul Benjamin Linton, Brief Amicus Curiae of the Prolife Center at the University of St. Thomas in Support of Petitioners in Dobbs v. Jackson Women's Health Center, (U of St. Thomas (Minnesota) Legal Studies Research Paper Forthcoming).
• F. Lee Francis, Who Decides: What the Constitution Says about Parental Authority and the Rights of Minor Children to Seek Gender Transition Treatment, (Southern Illinois University Law Journal, Forthcoming).

From SmartCILP:

• Charlotte Garden, Ministerial Employees and Discrimination without Remedy, 97 Indiana Law Journal 1007-1024 (2022).
• Mark Goldfeder, Defining Antisemitism, 52 Seton Hall Law Review 119-198 (2021).

11th Circuit Remands Establishment Clause Case That Had Relied On Lemon Test

In Rojas v. City of Ocala, Florida, (11th Cir., July 22, 2022), the U.S. 11th Circuit Court of Appeals vacated and remanded a district court's Establishment Clause decision that had relied on the now-repudiated Lemon test. In the case, plaintiffs who are atheists and humanists sued, challenging a prayer vigil that was co-sponsored by the Ocala police department held in response to a shooting spree that had injured several children. The district court granted summary judgment to plaintiffs.  On appeal, the court said in part:

When the district court granted summary judgment, it believed that the analytical framework articulated in Lemon v. Kurtzman ... was the controlling law. Even though many Justices soured on Lemon over the years, the Court seemingly could not rid itself of that much-maligned decision. Justice Scalia colorfully described Lemon as “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.”...

After this appeal was filed, however, the Supreme Court drove a stake through the heart of the ghoul and told us that the Lemon test is gone, buried for good, never again to sit up in its grave. Finally and unambiguously, the Court has “abandoned Lemon and its endorsement test offshoot.” Kennedy v. Bremerton Sch. Dist. ... (2022)....

[T]he Supreme Court has definitively decided that Lemon is dead — long live historical practices and understandings....

We remand this case to the district court to give it an opportunity to apply in the first instance the historical practices and understandings standard endorsed in Kennedy.

Ecclesiastical Abstention Doctrine Deprives Civil Court Of Jurisdiction Over Seventh-Day Adventist Church Dispute

In In re Texas Conference of Seventh-Day Adventists, (TX App, July 21, 2022), a Texas state appellate court held that the eccleisastical abstention doctrine deprives the trial court of jurisdiction over a dispute between the Fort Worth Northwest Seventh-Day Adventist Church and the Conference, its hierarchical parent body. At issue was control over the Church's funds and property. The court said in part:

The Northwest Church’s suit asks civil courts to resolve its dispute with the Conference based on its rights under the Church Manual. This is precisely the type of civil court inquiry that the First Amendment prohibits....

The Northwest Church’s case is not one in which it has separated from its hierarchical organization and in which it and the hierarchical organization dispute who owns what.... Rather, this is a dispute over who has the authority to make decisions on behalf of the Northwest Church....

Admittedly, under the Church Manual, the local church funds appear to belong to the “local church”.... Nevertheless, the dispute is over whether the Northwest Church is the “local church,” as contemplated by the Church Manual, when the Conference has not recognized the newly elected governing board.

Whether the Conference acted in a manner consistent with the Church Manual is an internal matter for the Northwest Church and the Seventh-Day Adventist hierarchy to resolve.... The Northwest Church’s claims are inextricably intertwined with matters of doctrine or church governance....

11th Circuit Upholds Georgia's LIFE Act

In Sistersong Women of Reproductive Justice Collective v. Governor of State of Georgia, (11th Cir., July 20, 2022), the U.S. 11th Circuit Court of Appeals upheld the constitutionality of Georgia's Living Infants Fairness and Equality (LIFE) Act which amends the definition of "natural person" in Georgia's statutes to mean "any human being including an unborn child". It also prohibits abortions after a fetal heartbeat is detected. The court said in part:

The district court entered a summary judgment for the abortionists challenging the Georgia law and permanently enjoined state officials from enforcing it. But intervening Supreme Court precedent, Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022), makes clear that no right to abortion exists under the Constitution, so Georgia may prohibit them. And the expanded definition of natural person is not vague on its face. We vacate the injunction, reverse the judgment in favor of the abortionists, and remand with instructions to enter judgment in favor of the state officials.

Reporting on the decision, CBS News also noted:

Normally, the ruling wouldn't take effect for weeks. But the court issued a second order Wednesday allowing the law to take effect immediately.

11th Circuit Denies En Banc Review In Conversion Therapy Case

In Otto v. City of Boca Raton, Florida, (11th Cir., July 20, 2022), the U.S. 11th Circuit Court of Appeals, by a vote of 7-4,, denied an en banc rehearing in a case in which a panel decision of the court struck down a conversion therapy ban.  (See prior posting). Concurring and dissenting opinions spanning 110 pages accompanied the brief order denying review. Judge Grant, joined by Judges Branch and Lagoa filed an opinion concurring in the denial, saying in part:

The perspective enforced by these local policies is extremely popular in many communities. And the speech barred by these ordinances is rejected by many as wrong, and even dangerous. But the First Amendment applies even to—especially to—speech that is widely unpopular....

Today’s dissenters decry the result of the panel decision—namely, that speech they consider harmful is (or may be) constitutionally protected. But to reach their preferred outcomes, they ask us to ignore settled First Amendment law

Judge Jordan joined by Judge Wilson, and joined in part by Judges Rosenbaum and Pryor, said in part:

[T]he panel majority in this preliminary injunction appeal ignored the clear error standard of review—never acknowledging or applying it —and substituted its own factual findings for those of the district court on important issues.

Judge Rosenbaum joined by Judge Pryor filed a dissenting opinion, saying in part

By incorrectly labeling talk therapy mental-healthcare treatments as mere “conversation” and “not medical at all,” the panel opinion necessarily subjects to First Amendment strict scrutiny all government regulations that require licensed mental-healthcare professionals to comply with the governing substantive standard of care in administering talk therapy. And that scrutiny rings the death knell for any such regulation.

San Francisco Permit Requirement For Park Church Services Enjoined

In Stewart v. City and County of San Francisco, California, (ND CA, June 22, 2022), a California federal district court issued a preliminary injunction barring enforcement of a provision in the San Francisco Park Code requiring a permit for any religious event held in a public park involving 50 or more persons. The court found the provision to be a content-based restriction that triggers strict scrutiny, and concluded that it violates free speech and free exercise protections. However the court upheld a provision requiring a permit for events utilizing sound amplification equipment. Plaintiffs hold their weekly church services in public parks.

DOJ Sues City For Failure To Accommodate Seventh Day Adventist Employee

A Title VII lawsuit was filed last week by the Justice Department on behalf of a newly-hired Seventh Day Adventist detention officer against the city of Lansing, Michigan. The complaint (full text) in United States v. City of Lansing, Michigan, (WD MI, filed 7/15/2022) alleges that the city "failed to provide [the officer] with a reasonable accommodation or to show undue hardship and terminated her employment because she could not work from Friday sundown through Saturday sundown due to her religious observance of the Sabbath..." The Justice Department issued a press release announcing the filing of the lawsuit.

Non-Profits Are Seeking IRS Classification As "Churches"

Both Baptist News Global and ProPublica have recently published lengthy investigative articles on the growing number of non-profit entities that have sought classification by the IRS as a "church" or "association of churches" or an "integrated auxiliary of a church." this exempts them from filing the annual Form 990 required of other non-profits. Form 990 disclose income, expenditures and compensation of officers, directors and key employees.

Britain's Sexual Offenses Act Now Outlaws Child Sexual Abuse By Religious Instructors

Britain's Sexual Offenses Act 2003 (Secs. 16-19) criminalizes abuse of a position of trust by engaging in sexual activity with a child or causing a child to witness sexual activity.  As reported by Law & Religion UK, amendments to the Act which expand the definition of "position of trust" came into effect on June 28. The Act now defines "position of trust" to include any person who knowingly coaches, teaches, trains, supervises or instructs on a regular basis in a sport or a religion. Religion is defined to include

(a) a religion which involves belief in more than one god, and (b) a religion which does not involve belief in a god.

Southwest Flight Attendant Fired Over Anti-Abortion Social Media Posts Wins $5.1M Verdict

One Mile At A Time reports on a jury verdict handed down last Thursday:

After a roughly five year legal battle, a former Southwest flight attendant has been awarded damages over being fired from the airline. Southwest claims that the flight attendant violated the company’s social media policy with her public and offensive anti-abortion posts, and she was also accused of harassing the union president, after union dues were used to attend a rally in Washington DC.

The article explains: 

 A federal jury in Texas has sided with the former Southwest flight attendant, arguing that she was unlawfully discriminated against for her sincerely held religious beliefs. Furthermore, the jury found that the union did not fairly represent her and retaliated against her for expressing her views.

If this stands, Carter will be awarded $5.3 million, including $4.15 million from Southwest Airlines and $1.15 million from Transportation Workers Union of America (TWU) Local 556. This consists primarily of punitive damages, but also consists of some back pay from the airline.

Recent Articles of Interest

From SSRN:

• Adnan Zulfiqar, The Dominion of Rights, the Resistance of Duties, (Rutgers Journal of Law and Religion, Vol. 22, No. 3, 2022).
• Francis Beckwith, Separated at Baptism: What the Mortara Case Can Teach Us About the Rejection of Natural Justice by Integralists and Progressives, (Brigham Young University Law Review, Vol. 47, No. 4, 2022).
• Dov Fox, Medical Disobedience, (July 2, 2022).
• Cometan, Recognition of Religion or Belief (RoRB), (June 29, 2022).
• Intisar A. Rabb, Metacanons: Comparative Textualism, (May 2022).
• James Diamond, An Uncomfortable Truth: Law as a Weapon of Oppression of the Indigenous Peoples of Southern New England,(Roger Williams University Law Review, Vol. 27, No. 2, 2022).
• Rosemary Teele Langford & Malcolm Edward Anderson, Charity Trustees: Governance Duties and Conflicts of Interest, ((2022) 28 (7) Trusts and Trustees).

From SSRN (Islamic Law):

• Intisar A. Rabb, Legal Canons—In the Classroom and in the Courtroom or, Comparative Perspective on the Origins of Islamic Legal Canons, 1265–1519, (Villanova Law Review, Vol. 66, No. 831-63, 2021).
• Intisar A. Rabb, Enforcement and Punishment in Medieval Islamic Law, (in Cultural History of Crime and Punishment in the Medieval Age (Sarah McDougall, Karl Shoemaker eds., Bloomsbury 2022) [Forthcoming]).
• Sandra Antoniazzi, Islamic Banks and the European Banking System: Critical Profiles and Law, (European Banking Institute Working Paper Series No 125, 2022).
• Adnan Zulfiqar, The Immorality of Incarceration: Between Jāvēd Aḥmad Ghāmidī and Angela Y. Davis, (Journal of Islamic Law [Harvard] (2022)).

From SmartCILP:

• Christian Zendri, Book Review. Erasmo da Rotterdam, Prefazioni ai Vangeli, 1516–1522, edited by Silvana Seidel Menchi, [Abstract], 61 American Journal of Legal History 335-337 (2021).

Court Enjoins DOE and EEOC From Enforcing LGBT Anti-Discrimination Interpretations Because Of Procedural Issues

 In State of Tennessee v. U.S. Department of Education, (ED TN, July 15, 2022), a Tennessee federal district court enjoined the Department of Education and the EEOC from enforcing against 20 states that are plaintiffs in the case documents interpreting Title IX and Title VII as including prohibitions on discrimination on the basis of sexual orientation or gender identity. According to the court:

Plaintiffs have demonstrated that they are likely to succeed on their claim that Defendants’ guidance documents are legislative rules and that the guidance is invalid because Defendants failed to comply with the required notice and comment procedures under the APA.

CNN reports on the decision.

Texas Sues Feds Over Abortion Guidance Given To Hospital Emergency Rooms

On Thursday, the state of Texas filed suit against the Biden administration challenging HHS's guidance to hospitals that the Emergency Medical Treatment & Labor Act requires hospital emergency rooms to perform an abortions when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition. The complaint (full text) in State of Texas v. Becerra, (ND TX, filed 7/14/2022) alleges in part:

The Biden Administration’s response to Dobbs v. Jackson Women’s Health Org.... which ended the terrible regime of Roe v. Wade, is to attempt to use federal law to transform every emergency room in the country into a walk-in abortion clinic.

The suit contends that the guidance exceeds statutory authority and violates various constitutional provisions. The Texas attorney general issued a press release announcing the filing of the lawsuit.

Wire Fraud Indictment Did Not Violate RFRA

In United States v. Stevens, (SD FL, July 12, 2022), a Florida federal district court adopted the magistrate's lengthy opinion of (May 2, 2022) and refused to dismiss a money laundering and wire fraud indictment against a religious psychic. The fraud victim, Ilena Torruella, believed that she was cursed because she possessed millions of dollars of "dirty" family money. Defendant offered to break the curse by "cleansing" the money and showing God that the victim was not attached to it. According to the court:

The key point Defendant relies upon to seek dismissal of this indictment is that Stevens never expressly promised to return Torruella’s money and Torruella never directly asked whether it would be returned before turning over her funds to Stevens.... Without an express agreement or promise to return the money, Stevens concludes that Torruella received exactly what she bargained for. The money was cleansed when Torruella gave it away.

Defendant contends that the indictment infringes her free exercise rights under RFRA and the 1st Amendment. However the magistrate's opinion rejects that contention, saying in part:

[Stevens] does not allege that any religious belief or practice of hers requires her to convert other people’s money for her benefit on false pretenses.... She instead argues that in general terms her Roma beliefs are burdened by the prosecution of this case based on her inability to practice her spiritual healing practices without government intervention. But that is too attenuated under RFRA because there are plenty of alternatives for Stevens to practice her religion....

The court concluded:

The jury must, of course, determine that her conduct was carried out with fraudulent intent. Defendant may present a defense that she was simply pursuing her religious practices, which may be antithetical with criminal intent. If the jury finds her belief to be sincere, she may be acquitted. But that is a matter for trial, not for a motion to dismiss.

Volokh Conspiracy has additional excerpts from the decision.