Religion Clause

Tuesday, April 25, 2023

North Dakota Governor Signs New Abortion Ban That Has Limited Exceptions

Yesterday, North Dakota Governor Doug Burgum signed SB 2150 (full text) into law. The new law bars abortions except when it was intended to prevent the pregnant female's death or a serious physical health risk. The law also permits abortions during the first 6 weeks of pregnancy if the pregnancy resulted from gross sexual imposition, sexual imposition, sexual abuse of a ward, or incest. AP reports on the new law, saying in part:

The North Dakota law is designed to take effect immediately, but last month the state Supreme Court ruled a previous ban is to remain blocked while a lawsuit over its constitutionality proceeds. Last week, lawmakers said they intended to pass the latest bill as a message to the state’s high court signaling that the people of North Dakota want to restrict abortion.

In its decision last month, the state Supreme Court concluded that the absence of an exception in the abortion ban for preserving the health of the mother is a critical defect in the state's prior abortion ban. The new law is presumably designed to respond to that concern.

Defrocked Cardinal McCarrick Indicted in Wisconsin on Sexual Assault Charge

In an April 17 press release, Wisconsin Attorney General Josh Kaul and Walworth County District Attorney Zeke Wiedenfeld announced that former cardinal Theodore McCarrick, age 92, has been charged with one count of Fourth-Degree Sexual Assault. The charge stems from an incident that occurred in April of 1977. The complaint alleges that McCarrick repeatedly abused the victim sexually over time. In 2019, the Vatican defrocked McCarrick because of past sexual misconduct. (See prior posting.)

Monday, April 24, 2023

Sunday, April 23, 2023

Judge Refuses to Recuse Himself from New Orleans Archdiocese Bankruptcy Matters

AP and WWL-TV reported on Saturday that federal district court judge for the Eastern District of Louisiana, Greg Guidry, has refused to recuse himself from reviewing matters related to the bankruptcy reorganization proceedings of the Catholic Archdiocese of New Orleans. An investigation by the Associated Press found:

... [S]ince being nominated to the federal bench in 2019 by then-President Donald Trump, [Guidry] has given nearly $50,000 to local Catholic charities from leftover contributions he received after serving 10 years as a Louisiana Supreme Court justice.

Most of that giving, $36,000 of it, came in the months after the archdiocese sought Chapter 11 bankruptcy protection in May 2020 amid a crush of sexual abuse lawsuits. That included a $12,000 donation to the archdiocese's Catholic Community Foundation in September 2020 on the same day of a series of filings in the bankruptcy, and a $14,000 donation to the same charity in July of the following year.

At a pre-trial status conference last Friday, Guidry read from an advisory opinion he had received from the federal Judicial Conference's Committee on Codes of Conduct. It concluded that no reasonable person would question Guidry's impartiality. The Advisory Opinion said in part:

none of the charities to which you contributed some of your wind-down campaign funds has been or is an actual party in any proceeding before you....

AP had also reported that Guidry had once served as a board member on the Archdiocese's charitable arm for eight years. The Advisory Opinion said, however:

[Y]our leadership as a board member of one of the charities ended 15 years ago, which is a significant span of time.

Guidry, who as district court judge would hear appeals from rulings of the district's bankruptcy judge, told the lawyers at the status conference:

Based upon that advice and based upon my certainty that I can be fair and impartial, I have decided not to recuse myself.

Saturday, April 22, 2023

Fire Fighter Can Move Ahead with Free Speech and Free Exercise Claims

In Misjuns v. Lynchburg Fire Department, (WD VA, April 20, 2023), a Virginia federal district court held that a fire department captain who was denied training necessary for promotion, and who was ultimately investigated and terminated from his position, had adequately alleged free speech and free exercise violations. One of plaintiff's contentions was that adverse action was taken against him because of a religious anti-transgender posting on one of his Facebook pages. According to the court:

Plaintiff posted a meme ,,, which stated: “In the beginning, God created Adam & Eve. Adam could never be a Madam. Eve could never become Steve. Anyone who tells you otherwise defies the one true God.”...

Plaintiff has sufficiently alleged ... that Defendants’ retaliatory actions against him were due to religious beliefs, not just political beliefs.

Lynchburg News & Advance reports on the court's decision.

Supreme Court Stays District Court's Order That Invalidated FDA's Approval of Abortion Pill

The U.S. Supreme Court yesterday evening in Danco Laboratories, LLC v. Alliance for Hippocratic Medicine, (Sup. Ct., April 21, 2023), and in a companion case in which the FDA was a party, granted stays of a Texas federal district court's order that had found the FDA's approval of the abortion drug mifepristone to be invalid. The stays will remain in effect while appeals work their way through the courts. Justice Thomas indicated that he would have denied the applications for stays. Justice Alito filed an opinion dissenting from the grant of the stays, saying that the applicants have not shown that they would suffer irreparable harm if the stays were not granted. SCOTUSblog has additional reporting on the Supreme Court's action.

Friday, April 21, 2023

Suit Challenges Tennessee's Ban On Gender Transition Treatment For Minors

Suit was filed yesterday in a Tennessee federal district court challenging Tennessee's recently enacted law banning medical or surgical treatment of gender dysphoria in minors. The complaint (full text) in L.W. v. Skrmetti, (MD TN, filed 4/20/2023), alleges that the ban violates plaintiffs' Equal Protection rights and their rights to parental autonomy, as well as violating provisions of the Affordable Care Act. ACLU issued a press release announcing the filing of the lawsuit.

Suit By Florida Breakaway Methodist Churches Is Dismissed

In Grace United Methodist Church Inc. v. Board of Trustees of FL Annual Conf of UMC Inc., (FL Cir. Ct., April 18, 2023). a Florida state trial court dismissed a suit by 71 Methodist congregations throughout Florida which seek to break away from their parent body because of their objections to United Methodist Church allowing bishops and clergy to officiate at same-sex weddings and to be openly gay. The congregations want to reaffiliate with the more conservative Global Methodist Church. Current UMC rules impose substantial financial costs on congregations seeking to disaffiliate. The court concluded that, under Florida precedent, it must defer to decisions of church hierarchical bodies. It also concluded that actions to determine title to property must be brought in local courts covering the jurisdiction in which the property is located. The court added:

[C]onsidering the recent clarifications from the Supreme Court of the United States on matters of discrimination and unequal treatment based on religious status, along with the abrogation of Lemon v. Kurtzman ... it seems to the Court that merely deferring to the UMC on all matters and denying the Plaintiffs access to the courts to litigate neutral property and trust matters does not meet the strictest scrutiny. Nevertheless, the Court is bound to follow the law as established by the higher courts in the State of Florida.

UM News reports on the decision.

Thursday, April 20, 2023

Mississippi Must Grant Religious Exemptions To School Vaccination Requirements

In Bosarge v. Edney, (SD MS, April 18, 2023), a Mississippi federal district court issued a preliminary injunction requiring Mississippi's State Health Officer, as well as school officials named as defendants, to provide religious exemptions from the state's mandatory vaccination requirements for school children. The court said in part:

The face of the statute allows for medical exemptions but affords no exemption for religious beliefs, and the Complaint alleges that this constitutes “an unconstitutional value judgment that secular (i.e., medical) motivations for opting out of compulsory immunization are permitted, but that religious motivations are not.”....

The Attorney General’s argument is essentially that the Compulsory Vaccination Law does not violate the Free Exercise Clause because the [Mississippi Religious Freedom Restoration Act] MRFRA saves it.... Taking this argument to its logical conclusion as to Plaintiffs’ facial challenge, no Mississippi statute could ever violate the Free Exercise Clause on its face because the more general, non-specific MRFRA applies to all State laws and operates to cure any law that would otherwise be deemed to violate the Free Exercise Clause.... However, at least in this case, the Court is not persuaded that the MRFRA can be read in this fashion with respect to Plaintiffs’ facial challenge.

RNS reports on the decision.

Wednesday, April 19, 2023

Additional Administrative Stay Issued By Supreme Court In Abortion Pill Case

U.S. Supreme Court Justice Samuel Alito today (April 19) in Food & Drug Administration v. Alliance for Hippocratic Medicine issued an Order (full text) extending the Court's April 14 administrative stay until Friday April 21. At issue is a Texas federal district court's decision invalidating the FDA's approval of the abortion drug mifepristone. Previously the Supreme Court had stayed the district court's order only until today. (See prior posting.) CNBC reports on Justice Alito's action.

Tuesday, April 18, 2023

President Biden Issues Yom HaShoah Proclamation

President Biden yesterday evening at the start of Yom Hashoah issued A Proclamation on Days Of Remembrance Of Victims Of The Holocaust, 2023 (full text). It reads in part:

During Yom HaShoah and throughout these days of remembrance, we mourn the six million Jews who were murdered during the horror of the Holocaust — as well as the millions of Roma and Sinti, Slavs, disabled persons, LGBTQI+ individuals, and political dissidents who were murdered at the hands of the Nazis and their collaborators. Together with courageous survivors, descendants of victims, and people around the world, we renew our solemn vow: “never again.”...

Hate must have no safe harbor in America or anywhere else. Today and always, we make our message clear: Evil will not win. Hate will not prevail. And the violence of antisemitism will not be the story of our time. Together, we can ensure that “never again” is a promise we keep....

NOW, THEREFORE, I, JOSEPH R. BIDEN JR., President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 16 through April 23, 2023, as a week of observance of the Days of Remembrance of Victims of the Holocaust, and I call upon the people of the United States to observe this week and pause to remember victims and survivors of the Holocaust.

Report on Worldwide Antisemitism Released

Yesterday, the Center for the Study of European Jewry at Tel Aviv university, along with the ADL, published the 86-page Antisemitism Worldwide Report for 2022 (full text). The Report says in part:

The Antisemitism Worldwide Report for 2022 informs of both increases and decreases, some more meaningful than others, in the number of antisemitic incidents in different countries. The United States, where the largest Jewish minority in the world lives, saw a particularly alarming rise in anti-Jewish violence and slander.

These data are not encouraging. The record-levels of 2021 were attributed in part to the exceptional social tensions created by the Covid-19 epidemic and the political tensions created by the Guardian of the Walls operation in Gaza. The data for 2022 suggest that the motivations for present-day antisemitism are not transient as some may have hoped. Despite the investment of substantial legal, educational, and political efforts, thousands of antisemitic incidents took place across the globe in 2022, including hundreds of physical assaults. Everyone who cares about human dignity and justice must recognize the need to prevent this reality from becoming normalized....

The current state of antisemitism is serious, but must not be inflated or self-servingly politicized. Antisemitic incidents should be reported and analyzed based on rigorous and careful methodologies and definitions and aspire for accuracy rather than sensationalism. Throughout 2022, a spate of studies that seemed oriented towards nothing more than newspaper headlines were published, presenting hysterical data, some grotesquely so. Such efforts do little more than feed cynicism, inaction, and allegations that the fight against antisemitism is an act of “crying wolf.”

Several of the case studies presented in this Report point to one of the most disturbing attributes of antisemitism: Jews do not have to be a part of a society for them to be defamed there. Last year, the Houthis of Yemen, where almost no Jews live, were one of the loudest antisemitic propagandists in the Arab world ..., while in Japan, two minor political parties that advance vicious anti-Jewish conspiracy theories made it to parliament for the first time....

Supreme Court Hears Oral Arguments Today In Title VII Religious Accommodation Case

The U.S. Supreme Court will hear oral arguments today in Groff v. DeJoy, an important religious liberty case testing the extent to which Title VII requires accommodation of employees' religious practices. In the case, the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, held that accommodating a Sunday sabbath observer by allowing him not to report for work on Sunday would cause an "undue hardship" to the U.S. Postal Service. Thus, failure to grant that accommodation did not violate Title VII. (See prior posting.) In the case, petitioners are asking the Supreme Court to revisit and reject the "more than de minimis" test for "undue hardship" announced in TWA v. Hardison. SCOTUSblog has a Case Preview with more details on the parties' arguments. The SCOTUSblog Case Page has links to the filings by the parties as well as to the more than 50 amicus briefs that have been filed. The arguments will be streamed live from the Supreme Court today at 10:00 AM here. The transcript and audio of the full oral arguments will be available later today here on the Supreme Court's website.

Monday, April 17, 2023

Supreme Court Review Sought in Challenge to Conversion Therapy Ban

On March 27, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Tingley v. Ferguson. In the case, the U.S. 9th Circuit Court of Appeals denied an en banc rehearing of a 3-judge panel's decision rejecting free speech, free exercise and vagueness challenges to Washington state's ban on practicing conversion therapy on minors. Conversion therapy encourages change in sexual orientation or gender identity. (See prior posting). SCOTUSblog reports on the petition for review.

Sunday, April 16, 2023

Biden Sends Greetings on Orthodox Christian Easter

President Biden today issued a Statement (full text) sending warm wishes from himself and the First Lady to those in the Orthodox Christian community celebrating Easter today. He said in part:

Today, as we pray for all those suffering from war and persecution, we also give thanks for people around the world who are binding up the wounds of the injured and working to protect the dignity of all—including by welcoming refugees and standing up for human rights....

During this sacred season and the years ahead, we look forward to continuing to work together to build a more just and compassionate world for all God’s children.

Saturday, April 15, 2023

WAPO Says Judge Hid His Authorship of Anti-Abortion, Anti-LGBT Law Review Article

Washington Post reported today that Texas federal district court judge Matthew Kacsmaryk who issued last week's controversial opinion finding the FDA's approval of the abortion medication mifepristone invalid removed his name as author of a pending law review article as his nomination to the federal bench became imminent. According to the Post:

As a lawyer for a conservative legal group, Matthew Kacsmaryk in early 2017 submitted an article to a Texas law review criticizing Obama-era protections for transgender people and those seeking abortions.

The Obama administration, the draft article argued, had discounted religious physicians who “cannot use their scalpels to make female what God created male” and “cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children.”

But a few months after the piece arrived, an editor at the law journal ... received an unusual email: ... Kacsmaryk, who had originally been listed as the article’s sole author, said he would be removing his name and replacing it with those of two colleagues at his legal group, First Liberty Institute....

The article, titled “The Jurisprudence of the Body,” was published in September 2017 by the Texas Review of Law and Politics, a right-leaning journal that Kacsmaryk had led as a law student at the University of Texas. But Kacsmaryk’s role in the article was not disclosed, nor did he list the article on the paperwork he submitted to the Senate in advance of confirmation hearings....

A spokesman for First Liberty ... said that Kacsmaryk’s name had been a “placeholder” on the article and that Kacsmaryk had not provided a “substantive contribution.”....

The full Post article has additional details.

Colorado Bars Abortion Pill Reversal; Suit Challenges New Law

Yesterday, Colorado Governor Jared Polis signed into law SB23-190 (full text). The new law makes it a deceptive trade practice to advertise that a clinic offers abortions, referrals for abortions or emergency contraceptives when it does not offer these services. It also provides that it is unprofessional conduct for a healthcare provider to prescribe or administer medication abortion reversal, unless by Oct. 1 the state medical, pharmacy and nursing boards all have in effect rules finding that it is a generally accepted standard of practice to engage in medication abortion reversal.

On the same day the bill was signed, an anti-abortion Catholic healthcare clinic filed suit in a Colorado federal district court challenging the new law's provisions on medication abortion reversal as violating its 1st and 14th Amendment rights. The complaint (full text) in Bella Health and Wellness v. Weiser, (D CO, filed 4/14/2023), alleges that the law violates its Free Exercise rights because it is neither neutral nor generally applicable, saying in part:

[A]bortion pill reversal is nothing more than supplemental progesterone. And there are a multitude of off-label uses of progesterone, which has been widely prescribed to women—including pregnant women—for more than 50 years.

... Yet SB 23-190 makes no attempt to regulate—much less outright prohibit— the off-label use of progesterone in any other circumstance. That omission renders SB 23-190 not generally applicable.

The complaint also alleges that the law violates their free speech rights and patients' right to medical treatment. According to Becket Law, the district court quickly granted Bella Health temporary emergency relief and set a hearing on a preliminary injunction while litigation proceeds for April 24. CPR News reports on the lawsuit.

Two Justices Say Iowa Should Adopt Ministerial Exception Doctrine

In Konchar v. Pins, (IA Sup. Ct., April 14, 2023), the Iowa Supreme Court affirmed a trial court's dismissal of fraud, defamation and breach of contract claims by the former long-time principal of a Catholic school. The court said in part:

Ultimately ... Konchar’s defamation claim is about whether a Catholic priest was justified in deciding that Konchar should no longer serve as principal at a Catholic school. But the district court believed that this kind of inquiry would run afoul of the First Amendment’s Free Exercise Clause.... In fact, the district court specifically found that the First Amendment precludes inquiries by “a civil court” into “the decision of whether Konchar was suitable for the role of Principal at St. Joseph’s.” And Konchar’s briefs do not challenge this conclusion. So we presume without deciding that the district court was correct, and we decline to reverse.

Justice Waterman, joined by Justice McDermott, filed a concurring opinion saying in part:

I write separately to confirm the majority opinion leaves the door open to formally apply the ministerial exception in our state. I would apply that exception in this case as an alternative ground to affirm dismissal of all tort claims asserted by Phyllis Konchar related to her termination as principal and “spiritual leader” of this church-operated private school. The ministerial exception better protects the autonomy of religious organizations guaranteed under the First Amendment to choose who ministers their faith and spares churches, dioceses, priests, and bishops the entanglement with costly civil litigation this case exemplifies. The extensive discovery, depositions, and trial spanning two weeks that these church defendants endured could have been avoided by a prompt dispositive motion under the ministerial exception long recognized by the United States Supreme Court, federal circuit courts, and other state courts.

Friday, April 14, 2023

Supreme Court Grants 5-Day Administrative Stay of Texas District Court's Abortion Pill Order

U.S. Supreme Court Justice Samuel Alito this afternoon in Food & Drug Administration v. Alliance for Hippocratic Medicine, (Docket No. 22A902, April 14, 2023), granted a 5-day administrative stay of a Texas federal district court's order invalidating the FDA's approval of the abortion drug mifepristone. Any response to the application for a lengthier stay must be filed by 11:59 pm April 18. Any response to that filing must be submitted by noon the next day. CNN reports on developments.

UPDATE: Here is the White House's reaction to the Court's stay.