Supreme Court Asked to Stay Abortion Pill Rulings

Today both the FDA and the manufacturer of the abortion drug mifepristone filed with the U.S. Supreme Court applications for a stay of the Texas federal district court's Order invalidating the FDA's approval of the drug. The 5th Circuit Court of Appeals allowed part of the district court's order to remain in effect. Today's Applications for a Stay were filed with Justice Alito, the Justice assigned by the Court to receive emergency applications from the 5th Circuit.  Here is the filing by Danco Laboratories, and here is the Solicitor General's filing on behalf of the FDA.  Axios reports on the filings.

Dismissal Recommended in Healthcare Worker's Claim for Religious Exemption from Vaccine Mandate

In Bolonchuk v. Cherry Creek Nursing Center/ Nexion Health, (D CO, April 12, 2023), a Colorado federal magistrate judge recommended dismissing a suit by a former nursing home healthcare employee whose 18-year long employment was terminated after she refused on religious grounds to comply with her employer's Covid vaccine mandate for healthcare workers. A state regulation required the vaccine mandate. The court rejected plaintiff's 1st Amendment claim because defendant was not alleged to be a state actor.  It also rejected her claim that Title VII required a religious accommodation, saying in part:

Defendant would have had to violate a state law (i.e., the regulation mandate) in order to accommodate Plaintiff, clearly establishing an undue hardship.

Florida Enacts More Restrictive Abortion Law

Yesterday, Florida Governor Ron DeSantis signed SB 300 (full text) which bans abortions after 6 weeks of pregnancy, amending the state's prior law that permitted abortions until 15 weeks.  Under the new law, exceptions remain for saving the mother's life or preventing imminent substantial and irreversible physical impairment of a major bodily function other than a psychological condition. There are also exceptions before the third trimester where the fetus has a fatal fetal abnormality, and during the first 15 weeks in cases of documented rape, incest or human trafficking.  A press release from the Governor's office announcing the signing or the said in part:

While other states like California and New York have legalized infanticide up until birth, Governor DeSantis has enacted historic measures to defend the dignity of human life and transform Florida into a pro-family state.

The White House issued a statement sharply criticizing the bill.  CNN reports on the new law.

5th Circuit Allows Part of Stay on Abortion Pills To Remain; U.S. Will Appeal to Supreme Court

 In Alliance for Hippocratic Medicine v. Food & Drug Administration,(5th Cir., April 12, 2023), the U.S. 5th Circuit Court of Appeals granted a partial stay of a Texas federal district court's decision invalidating the FDA's approval of the abortion drug mifepristone. The appeals court held that the statute of limitations barred a challenge to the FDA's initial approval of the drug in 2000. However, the court refused to stay the district court's disapproval of changes the FDA made in 2016.  Those changes significantly reduced prior restrictions on the administration and use of the drug. The court said in part:

Here, applicants have failed to carry their burden at this preliminary stage to show that FDA’s actions were not arbitrary and capricious. We have two principal concerns in that regard. First, FDA failed to “examine the relevant data” when it made the 2016 ... changes.... That’s because FDA eliminated ... safeguards based on studies that included those very safeguards....

Second, the 2016 ... Changes eliminated the requirement that non-fatal adverse events must be reported to FDA. After eliminating that adverse-event reporting requirement, FDA turned around in 2021 and declared the absence of non-fatal adverse-event reports means mifepristone is “safe.”... This ostrich’s-head-in-the-sand approach is deeply troubling.... It’s unreasonable for an agency to eliminate a reporting requirement for a thing and then use the resulting absence of data to support its decision.

Reuters reports on the decision. 

Earlier today, the Justice Department announced that it would seek emergency relief from the U.S. Supreme Court.

FDA Seeks Stay Pending Appeal of Order Ending Approval of Mifepristone

The Justice Department on behalf of the U.S. Food and Drug Administration yesterday filed an Emergency Motion for a Stay Pending Appeal (full text of motion) in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, (5th Cir., filed 4/10/2023). The motion seeks a stay while an appeal is heard by the 5th Circuit of a Texas federal district court decision setting aside the 2000 FDA order approving doctors prescribing mifepristone for medical abortions. The FDA argues in part:

The [district] court repeatedly characterizes mifepristone as unsafe. But over the last two decades, the available evidence conclusively demonstrates that mifepristone is safe under the approved conditions of use. More than five million women have used mifepristone to terminate their pregnancies in the United States.... Mifepristone is also approved in dozens of other countries..... The literature reflects “exceedingly rare” rates of serious adverse events.

AP reports on the appeal.

185 Methodist Churches in Georgia Sue Parent Body Seeking Disaffiliation

 At the end of last month, 185 Methodist congregations in Georgia filed suit in a Georgia state trial court against their parent body and its officials.  The congregations are attempting to disaffiliate from the North Georgia Conference of the United Methodist Church pursuant to a provision (❡2553) added to the Church's Book of Discipline in 2019.  The provision, which applies to disaffiliations completed by the end of 2023, allows disaffiliating congregations to keep their real and personal property.  The complaint (full text) in Carrollton First United Methodist Church, Inc. v. Trustees of the North Georgia Conference of the United Methodist Church, Inc., (GA Superior Ct., filed 3/30/2023), alleges in part that: 

Defendants have conspired to "run out the clock" on Plaintiffs ability to utilize ❡2553 by a combination of ultra vires actions, fraudulent misrepresentations, and promises which they have failed to keep so that, unless this court intervenes, Plaintiffs cannot and indeed will not be allowed to fulfill the legislated requirements of ❡2553 in time to meet the sunset date of 12/31/23.

The complaint also alleges that the parent body is no longer allowing disaffiliating churches a credit for their share of a $23 million pension plan reserve fund.

In introductory paragraphs, the complaint contends:

This case can be resolved in accordance with secular Georgia law ... without interfering with the separation of church and state.... Defendants cannot be heard to contest this point, as Defendants have availed themselves of the same principles recently in a substantially similar context in this very court....

UM News, reporting on the lawsuit, says in part:

The lawsuit ... involves more than a quarter of the North Georgia Conference’s nearly 700 congregations. 

It’s also the most congregations that have banded together in a single lawsuit since the denomination began undergoing a slow-motion separation after decades of intensifying debate over LGBTQ inclusion.

House Committee Seeks Documents on FBI Interest in Radical Traditionalist Catholic Extremists

Yesterday, U.S. House Judiciary Committee chairman Jim Jordan issued a subpoena to FBI Director Christopher Wray seeking documents related to the FBI's attempt to monitor possible violent extremism among radical-traditionalist Catholics.  In an April 10 Committee Press Release (full text), the Committee said in part:

From this limited production, it is apparent that the FBI, relying on information derived from at least one undercover employee, sought to use local religious organizations as “new avenues for tripwire and source development.”... 

The FBI similarly noted two other opportunities to engage in outreach with religious institutions in the Richmond area, citing a desire “to sensitize the congregation to the warning signs of radicalization and enlist their assistance to serve as suspicious activity tripwires.” This outreach plan even included contacting so-called “mainline Catholic parishes” and the local “diocesan leadership.” 

The subpoena cover letter (full text) says in part:

The Committee on the Judiciary is conducting oversight of the Federal Bureau of Investigation’s (FBI) handling of domestic violent extremism investigations against Catholic Americans and its effect on protected First Amendment activity....

We have repeatedly sought information from the FBI relating to a January 23, 2023 document generated by the Richmond Field Office entitled “Interest of Racially or Ethnically Motivated Violent Extremists in Radical-Traditionalist Catholic Ideology Almost Certainly Presents New Mitigation Opportunities”.... In this document, the FBI purported to categorize Catholic Americans based on theological distinctions and relied on the Southern Poverty Law Center to suggest that certain kinds of Catholic Americans may be domestic terrorists.

A report by Bloomberg on the subpoena adds:

There was no immediate response from Wray, but he told senators last month that the document “does not reflect FBI standards” and the bureau “took steps immediately to withdraw it and remove it from FBI systems.”

“We do not conduct investigations based on religious affiliation or practices, full stop,” Wray told the Senate Intelligence Committee.

7th Circuit: Accommodating Teacher's Religious Beliefs as To Transgender Students Imposed Undue Hardship

 In Kluge v. Brownsburg Community School Corp., (7th Cir., April 7, 2023), the U.S. 7th Circuit Court of Appeals in a 2-1 decision upheld a school's dismissal of a teacher who refused on religious grounds to comply with the school policy of calling transgender students by their names registered in the school's official database. In a 79-page majority opinion rejecting the teacher's Title VII claims, the court said in part:

After Brownsburg initially accommodated Kluge’s request to call all students by their last names only, the school withdrew the accommodation when it became apparent that the practice was harming students and negatively impacting the learning environment for transgender students, other students both in Kluge’s classes and in the school generally, as well as the faculty. The district court granted summary judgment in favor of the school after concluding that the undisputed evidence showed that the school was unable to accommodate Kluge’s religious beliefs and practices without imposing an undue hardship on the school’s conduct of its business of educating all students that entered its doors. The district court also granted summary judgment in favor of Brownsburg on Kluge’s retaliation claim. We agree that the undisputed evidence demonstrates that Kluge’s accommodation harmed students and disrupted the learning environment. Because no reasonable jury could conclude that harm to students and disruption to the learning environment are de minimis harms to a school’s conduct of its business, we affirm.

Judge Brennan dissented as to the reasonable accommodation claim. In a 54-page dissent, he said in part:

Kluge’s religious accommodation claim comes down to a fact-intensive inquiry: Did the School District demonstrate that Kluge’s gender-neutral accommodation of calling all students by only their last names causes undue hardship—that is, more than a de minimis cost? The majority opinion says “yes,” but it sidesteps Kluge’s countervailing evidence, fails to construe the record in his favor, and overlooks credibility issues on both sides, which are reserved for resolution by the factfinder. 

... [W]ithout supporting authority, my colleagues hold that the undue hardship inquiry looks only to evidence within the employer’s knowledge at the time of the adverse employment decision.... Considering the entire record, there is a genuine issue of material fact on undue hardship, which we should remand for trial.

Reuters reports on the decision.

Recent Articles of Interest

From SSRN:

• Sanchaali Chakravorty, Can the Vatican Really Be Called a "State"?, (March 21, 2023).
• Mordechai (Mordy) Sahler, Is This a Real Problem? – HOA Rules that Interfere with the Practice of Religion, (CSLR Research Paper No. 1.2023-ESS (2023).
• Robert Kahn, The Hijab Row in Karnataka, Egalitarian Uniformity and the Right to Adorn One’s Face, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 23-01 (2023).
• Suryapratim Roy & Rahul Sambaraju, Hindu Zion: The Politics of Constitutional Accommodation, (Mark Tushnet and Dimitry Kochenov (eds), Research Handbook on the Politics of Constitutional Law (Edward Elgar 2023)).
• Reva B. Siegel, How "History and Tradition" Perpetuates Inequality: Dobbs on Abortion's Nineteenth-Century Criminalization, (Houston Law Review, Vol. 60, 2023).

From SmartCILP:

• Javid Rehman, Revisiting the Jihad Ideology in Islamic International Law and Its Appropriation by Nonstate Actors [Abstract], 44 Human Rights Quarterly 417-440 (2022).
• Niaz A. Shah, The Application of Human Rights Treaties in Dualist Muslim States: The Practice of Pakistan, 44 Human Rights Quarterly 257-285 (2022).
•  Rabea, Benhalim, Oppression in American, Islamic, and Jewish Private Law. 94 University of Colorado Law Review 149-216 (2023).

Deed Restriction Does Not Violate Establishment Clause

In Hilo Bay Marina, LLC v. State of Hawaii, (HI Cir. Ct., March 21, 2023), a Hawaii trial court dismissed a suit seeking to void a deed restriction.  In 1922, the land at issue was conveyed by the Territory of Hawaii to the Church of Jesus Christ of Latter Day Saints, with a deed restriction that the land could only be used for church purposes. Under the restriction, the land would revert to Hawaii if it was used for non-church purposes.  In 2000, the land was conveyed to the Hilo Bay Marina, presumably triggering the reversion. Fifteen years later it was conveyed by the Marina to Keaukaha Ministry.  Now the Marina and the Ministry sue to void the deed restriction, among other things contending that it violates the Establishment Clause of the U.S. and the Hawaii Constitutions.  The court rejected the claim citing the U.S. Supreme Court's decision in Kennedy v. Bremerton Schol District, and saying in part:

The Establishment Clause "must be interpreted 'by reference to historical practices and understandings.'"...

The practice of selling government lands with deed restrictions was an early form of use-zoning and is interpreted as a historical practice of zoning....

Even if Article I, §4 of the Hawai'i Constitution is not coextensive with the Establishment Clause of the First Amendment..., the deed restriction passes constitutional muster under Lemon v. Kurtzman....

The deed restriction allows for any religious organization to benefit from the property, so it does not endorse or approve one religion over another....

The surveillance and monitoring required to enforce the deed restriction do not present excessive entanglement because they are no different than that of what is required to enforce any other zoning regulation.

White House Issues Easter Greetings

Today is Easter. In honor of the holiday, President Biden issued a Statement (full text) which says in part:

Jill and I join Christians around the world in celebrating Easter Sunday, a day of hope and joy, renewal and rebirth....

Today, we hold close the Easter message that nothing – not even death – can match the power of faith, hope, and love. And we remember Jesus’ sacrifice and recommit ourselves to love God with all our hearts and to love our neighbors as ourselves, embracing His call to treat one another with compassion.

Last week, the White House also issued a Release (full text) giving extensive details for this year's annual Easter Egg Roll. It says that "In total, approximately 30,000 people will take part in this year’s Easter “EGGucation” Roll...."

Ministerial Exception Doctrine Requires Dismissal of Hostile Work Environment Claims

In Montgomery v. St. John's United Church of Christ, (OH App., April 6, 2023), an Ohio state appellate court held that the ministerial exception doctrine requires dismissal of plaintiffs' hostile work environment claims. In the case, the church's minister and a pastoral assistant contended that they were sexually harassed by a lay leader of the church, and that their employment was terminated because of their resistance to this conduct. The court said in part:

The [trial] court found that due to the nature of relationships of the parties involved and the subject matter of the conversations and communications between them, it could not “adjudicate the sexual harassment claims of Appellants without distinguishing between Appellee Martin as a parishioner in the congregation seeking counsel, guidance, and comfort from his pastor and pastoral assistant, and Martin as a church officer engaging in harassing or hostile behavior.”... The court found that it could not make this distinction or determination without “delving deeply into the relationships and expectations of the parties and their church and their faith.” ... 

We agree that this is precisely the kind of state inquiry into church employment decisions that the First Amendment forbids....

Contradictory Orders From 2 District Court on FDA's Approval of Abortion Pill

In Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration, (ND TX, April 7, 2023), a Texas federal district court held that plaintiffs have a substantial likelihood of success on their claim that the FDA's 2021 action allowing the abortion drug mifepristone to be distributed by mail violates the Comstock Act and thus was also in violation of the Administrative Procedure Act. The court also concluded that the FDA's approval in 2000 of doctors prescribing mifepristone violated the agency's rules for approval of new drugs. The FDA rules (Subpart H) relied upon to approve the drug apply to "new drug products that have been studied for their safety and effectiveness in treating serious or life-threatening illnesses and that provide meaningful therapeutic benefit to patients over existing treatments...."  The court said in part:

[T]o satisfy Subpart H, FDA deemed pregnancy a “serious or life-threatening illness[]” and concluded that mifepristone “provide[d] [a] meaningful therapeutic benefit to patients over existing treatments.” See 21 C.F.R. §§ 314.500; 314.560. FDA was wrong on both counts....

Pregnancy is a normal physiological state most women experience one or more times during their childbearing years — a natural process essential to perpetuating human life. Defendants even admit pregnancy is not an “illness.”...

FDA also exceeded its authority under the second requirement of Subpart H. In addition to treating a serious or life-threatening illness, chemical abortion drugs must also provide a “meaningful therapeutic benefit” to patients over surgical abortion... [T]his cannot be the case because chemical abortion drugs do not treat “serious or life-threatening illnesses” — a prerequisite to reaching the second requirement.... Similarly, chemical abortion drugs cannot be “therapeutic” because the word relates to the treatment or curing of disease.

The court stayed the FDA's approval of mifepristone, but stayed the effectiveness of its order for 7 days so the government can appeal to the U.S. 5th Circuit Court of Appeals for emergency relief.  President Joe Biden issued a statement (full text) criticizing the court's decision and reporting that the Justice Department has already filed an appeal.  Vice President Kamala Harris also issued a statement (full text) criticizing the decision.

Meanwhile, in State of Washington v. U.S. Food & Drug Administration, (ED WA, April 7, 2023), a Washington federal district court issued a preliminary injunction barring the FDA from "altering the status quo and rights as it relates to the availability of Mifepristone" in the 17 states and District of Columbia that are plaintiffs in the case. Plaintiffs are challenging certain requirements for prescribing mifepristone added in 2023.

Seattle Times reports on the decisions.

Maryland Attorney General Releases Report on Child Sexual Abuse in Baltimore Archdiocese

Maryland's Attorney General today released a Report on Child Sexual Abuse in the Archdiocese of Baltimore (full text). The 463-page report details abuse by each of 156 individuals , with the names of ten of the individuals redacted. The Report says in part:

As the case descriptions in this Report make clear, from the 1940s through 2002, over a hundred priests and other Archdiocese personnel engaged in horrific and repeated abuse of the most vulnerable children in their communities while Archdiocese leadership looked the other way. Time and again, members of the Church’s hierarchy resolutely refused to acknowledge allegations of child sexual abuse for as long as possible. When denial became impossible, Church leadership would remove abusers from the parish or school, sometimes with promises that they would have no further contact with children. Church documents reveal with disturbing clarity that the Archdiocese was more concerned with avoiding scandal and negative publicity than it was with protecting children.

WBAL's news story has additional details.

Biden Marks Passover by Announcing Upcoming Release of National Strategy to Combat Antisemitism

Passover begins this evening. To mark the holiday, President Biden published an Op Ed (full text) on CNN (also posted on the White House website) titled "To fight antisemitism, we must remember, speak out and act". In it he announced that the federal government will be releasing the first-ever national strategy to counter antisemitism.  In the op-ed, after recounting a number of instances of antisemitism, the President went on to say in part:

These acts are unconscionable and despicable. They carry in them terrifying echoes of the worst chapters in human history. And they’re not only a strike against Jews, they’re also a threat to other minority communities and a stain on the soul of our nation.

To the Jewish community, I want you to know that I see your fear, your hurt and your concern that this venom is being normalized.... 

Rest assured that I am committed to the safety of the Jewish people. I stand with you. America stands with you. Under my presidency, we continue to condemn antisemitism at every turn. Failure to call out hate is complicity. Silence is complicity. And we will not be silent....

But government alone cannot root out antisemitism and hate. All Americans, including businesses and community leaders, educators, students, athletes, entertainers and influencers must help confront bigotry in all its forms. We must each do our part to create a culture of respect in our workplaces, in our schools, on our social media and in our homes.

IRS Correctly Denied Non-Profit Ruling to Church That Promoted Use of Ayahuasca

In Iowaska Church of Healing v. United States, (D DC, March 31, 2023), the D.C. federal district court upheld the IRS's refusal to grant §501(c)(3) non-profit status to a church that promotes the religious use of Ayahuasca, a tea brewed from plants containing a drug that is illegal under the federal Controlled Substances Act. The church, which has 20 members located around the world, applied to the Drug enforcement Administration for a religious exemption from CSA provisions. After four years, that application is still pending.  The court said in part:

The IRS correctly concluded that, until plaintiff obtains a CSA exemption, its promotion and use of Ayahuasca remains illegal under federal law, and plaintiff is neither organized nor operated exclusively for public purposes. As a result, plaintiff is not entitled to an exemption from income tax under section 501(c)(3).

Plaintiff had argued that the Supreme Court's decision in the O'Centro case entitled it to a tax exemption.  The court responded:

[T]he holding in O Centro stands only for the principle that obtaining a CSA exception for religious use of Ayahuasca is possible, if such use is in fact a sincere religious exercise. The flaw in plaintiff’s reliance on O Centro here, is that plaintiff has still not obtained that CSA exception—and whether plaintiff’s showing made to the DEA is sufficient to qualify for this exemption remains an open question that is not before this Court. O Centro simply does not stand for plaintiff’s asserted holding, that all Ayahuasca use is necessarily religious, and that case certainly does not establish that all organizations making use of Ayahuasca are entitled to an exemption from income tax, which is the issue pending here.

The court also held that the church lacks standing to challenge the denial of non-profit status as a violation of RFRA because "plaintiff’s inability to use Ayahuasca does not stem from the IRS Determination Letter, but rather from the CSA’s ban on using DMT, and plaintiff’s lack of a CSA exemption thus far."

Suit Challenges Oregon Requirement That Adoptive Parents Support Child's Sexual Orientation and Gender Identity

Suit was filed this week in an Oregon federal district court challenging a rule of the state's Department of Human Services that persons seeking to adopt children must agree to accept and support the sexual orientation and gender identity of any child placed with them. The complaint (full text) in Bates v. Pakseresht, (D OR, filed 4/3/2023), contends that the rule violates the free expression, free exercise and equal protection rights of plaintiff whose Christian religious beliefs do not permit her to comply with this requirement.  The complaint reads in part:

Under this rule, caregivers must agree to use a child’s preferred pronouns, take a child to affirming events like Pride parades, or sign the child up for dangerous pharmaceutical interventions like puberty blockers and hormone shots—no matter a child’s age, no matter whether a child actually desires these things, and no matter how deeply these requirements violate the caregiver’s religious convictions.

This puts Jessica in a bind. Like countless people of faith, Jessica believes that our biological sex carries spiritual significance for who we are and how we should act. Jessica cannot affirm that a male is or should try to be female or vice  versa....

... Because she will not agree to use a hypothetical child’s preferred pronouns or facilitate a hypothetical gender transition, she cannot even adopt a newborn who has no concept of, much less a desire for, these things.

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

9th Circuit: Jehovah's Witness' Suit Over State-Employee Loyalty Oath Is Remanded

In Bolden-Hardge v. Office of the California State Controller, (9th Cir., April 3, 2023), the U.S. 9th Circuit Court of Appeals reversed and remanded a district court's dismissal of a suit by a Jehovah's Witness who challenged California's refusal to allow her to add a paragraph to the state-employee loyalty oath specifying that by signing it she is not giving up the right to exercise her religion which requires her primary loyalty be to God. Reversing dismissal of plaintiff's Title VII claims, the court said in part:

California’s apparent rationale for the oath requirement is to ensure that if an oath taker’s religion ever comes into conflict with the federal or state constitutions, religion must yield....

[T]o exempt the Controller’s Office from a federal accommodation requirement solely because the requested accommodation would violate state law would essentially permit states to legislate away any federal accommodation obligation....

Bolden-Hardge alleges a disparate impact... She contends that her religious beliefs are “consistent with [those] of other Jehovah’s Witnesses,” who also believe that their faith forbids them from swearing primary allegiance to any human government.... [T]his belief is in tension with the loyalty oath requirement....

The loyalty oath is a business necessity, the Controller’s Office argues, because public employees must be “committed to working within and promoting the fundamental rule of law while on the job.”... It asserts that allowing addenda that indicate an oath-taker’s primary loyalty to God would render the oath meaningless and undermine critical state interests. This assertion may well prove true and, if so, the Controller’s Office may be able to defeat Bolden-Hardge’s disparate impact claim at a later stage of the litigation. But this is not apparent from the face of her Complaint,,,,

Catholic Media Group Can Move Ahead with Free Speech and Assembly Claims

In St. Michael's Media, Inc. v. Mayor and City Council of Baltimore, (D MD, March 31, 2023), a Maryland federal district court in an 80-page opinion allowed a conservative media organization that often criticizes the current leadership of the Catholic Church to move ahead with free speech and freedom of assembly claims against the city of Baltimore and the management of a city-owned concert venue.  The claims grew out of the cancellation of a contract for plaintiff to hold a conference and prayer rally to coincide with the Fall General Assembly of the U.S. Conference of Catholic Bishops. The court said in part:

St. Michael’s sufficiently alleges viewpoint-based discrimination.... St. Michael’s alleges that defendants cancelled the rally “specifically because they disapproved of the content and viewpoint of the speech that was expected to occur at the rally.”... St. Michael’s asserts that, when Voris spoke with Shea regarding the cancellation, “Shea told Mr. Voris that his office had received reports that St. Michael’s had ‘ties to the January 6 [2021] riot’ at the Capitol building in Washington, D.C.”.... As I acknowledged in granting the preliminary injunction ..., “invocation of the events of January 6, 2021, as horrifying as they were, cannot, without more, serve as a license for the City to dispense with its obligations under the First Amendment.”

The court however dismissed plaintiff's free exercise claim, saying in part:

[T]he Second Amended Complaint “does not raise any plausible suspicion”—even a slight suspicion—that plaintiff’s religious exercise was the “object” of the City’s decision to cancel the rally.

It also dismissed plaintiff's Establishment Clause claim, saying in part:

The only allegation in the SAC asserting City support for the USCCB is that “Shea unilaterally canceled St. Michael’s [sic] contract with SMG because the USCCB told him to.”...  [T]his still does not exhibit a religious preference. St. Michael’s bases this assertion on its belief that “Shea was told by USCCB members that the content of speech during St. Michael’s [sic] rally would be uncomfortable or offensive for the attendants of its Fall General Assembly to hear.”... Yet, the only religious element of the rally identified by St. Michael’s is praying the Rosary. There are no facts alleged to support the claim that defendants chose one religious group over another.

North Dakota Enacts A State RFRA

Last week, North Dakota Governor Dout Burgum signed House Bill No. 1136 (full text), North Dakota's version of the Religious Freedom Restoration Act. The new law provides in part:

... [A]state or local government entity may not:

a. Substantially burden a person's exercise of religion unless applying the burden to that person's exercise of religion in a particular situation is essential to further a compelling governmental interest and is the least restrictive means of furthering that compelling government interest;

b. Treat religious conduct more restrictively than any secular conduct of reasonably comparable risk; or

c. Treat religious conduct more restrictively than any comparable secular conduct because of alleged economic need or benefit.

ADF issued a press release announcing the signing of the bill. [Thanks to Greg Chaufen for the lead.]