Florida's Ban On Medicaid Payments For Puberty Blockers and Cross-Sex Hormones Is Invalid

In Dekker v. Weida, (ND FL, June 31, 2023), a Florida federal district court held that Florida Statutes §286.31(2) and Florida Administrative Code Rule 59G-1.050(7) which bar the expenditure of state funds, including Medicaid funds, for puberty blockers and cross-sex hormones violate the Equal Protection Clause and the Affordable Care Act's ban on sex discrimination, as well as provisions of the Medicaid Act. The statute and rule also ban Medicaid coverage for gender-affirming surgery, but none of the plaintiffs had standing to challenge these provisions. The court said in part:

The record establishes that for some minors, including Susan Doe and K.F., a treatment regimen of mental-health therapy followed by GnRH agonists and eventually by cross-sex hormones is the best available treatment. They and their parents, in consultation with their doctors and multidisciplinary teams, have rationally chosen this treatment. The State of Florida’s decision to ban payment for GnRH agonists and cross-sex hormones for transgender individuals is not rationally related to a legitimate state interest. 

Dissuading a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest. The defendants apparently acknowledge this. But the State’s disapproval of transgender status—of a person’s gender identity when it does not match the person’s natal sex—was a substantial motivating factor in enactment of the challenged rule and statute....

The rule and statute at issue were motivated in substantial part by the plainly illegitimate purposes of disapproving transgender status and discouraging individuals from pursuing their honest gender identities. This was purposeful discrimination against transgenders....

Florida Politics reports on the decision.

Biden, Modi Respond To Questions About Religious Freedom In India

Yesterday, President Biden and Indian Prime Minister Narendra Modi who is making a state visit to the United States held a joint Press Conference (full transcript) at the White House. Reporters raised questions regarding India's treatment of religious minorities. Here is the relevant portion of the questions and answers:

Q    So, as you raise these broader issues of human rights and democracy, what is your message to those — including some members of your own party — who believe that your administration is overlooking the targeting of religious minorities and a crackdown on dissent in India?

PRESIDENT BIDEN:  Well, look, the Prime Minister and I had a good discussion about democratic values.  And ... that’s the nature of our relationship: We’re straightforward with each other, and — and we respect each other.

One of the fundamental reasons that I believe the U.S.-China relationship is not in the space it is with the U.S.- Indian relationship is that there’s an overwhelming respect for each other because we’re both democracies.  And it’s a common democratic ... character of both our countries that — and our people — our diversity; our culture; our open, tolerant, robust debate. 

And I believe that we believe in the dignity of every citizen.  And it is in America’s DNA and, I believe, in India’s DNA that the whole world — the whole world has a stake in our success, both of us, in maintaining our democracies.  It makes us appealing partners and enables us to expand democratic institutions across — around the world.  And I believe this, and I still believe this.

Q    Mr. Prime Minister, India has long prided itself as the world’s largest democracy, but there are many human rights groups who say that your government has discriminated against religious minorities and sought to silence its critics.  As you stand here in the East Room of the White House, where so many world leaders have made commitments to protecting democracy, what steps are you and your government willing to take to improve the rights of Muslims and other minorities in your country and to uphold free speech?

PRIME MINISTER MODI:  (As interpreted.)  I’m actually really surprised that people say so.  And so, people don’t say it.  Indeed, India is a democracy. 

And as President Biden also mentioned, India and America — both countries, democracy is in our DNA.  Democracy is our spirit.  Democracy runs in our veins.  We live democracy.  And our ancestors have actually put words to this concept, and that is in the form of our constitution.

Our government has taken the basic principles of democracy.  And on that basis, our constitution is made and the entire country runs on that — our constitution and government.  We have always proved that democracy can deliver.  And when I say deliver, this is regardless of caste, creed, religion, gender.  There’s absolutely no space for discrimination. 

And when you talk of democracy, if there are no human values and there is no humanity, there are no human rights, then it’s not a democracy.

And that is why, when you say “democracy” and you accept democracy and when we live democracy, then there is absolutely no space for discrimination.  And that is why India believes in moving ahead with everybody with trust and with everybody’s efforts.

These are our foundation principles, which are the basis of how we operate, how we live our lives.  In India, the benefits that are provided by the government is accessible to all.  Whoever deserves those benefits is available to everybody.  And that is why, in India’s democratic values, there’s absolutely no discrimination neither on basis of caste, creed, or age, or any kind of geographic location.

Teachers May Move Ahead with Suit Challenging Denial of Exemption from Covid Vaccine Mandate

 In Brandon v. Board of Education of the City of St. Louis, (ED MO, June 21, 2023), a Missouri federal district court refused to dismiss Free Exercise and Equal Protection claims, as well as Missouri Human Rights Act and Title VII claims by 41 of the 43 teachers and staff, in a suit challenging the denial of religious exemptions from the school district's Covid vaccine mandate. Discussing plaintiffs' First Amendment claim, the court said in part:

[Eighth Circuit precedent] instructs district courts to apply Jacobson to laws passed and enforced while an emerging public-health emergency is “developing rapidly, poorly understood, and in need of immediate and decisive action,.., but the tiers of scrutiny when “time [was] available for more reasoned and less immediate decision-making by public health officials” and “the immediate public health crisis [had] dissipated,”.... Again, which standard applies depends upon a “factual determination,”..., and the Court must at this point accept Plaintiffs’ well-pleaded factual allegations as true.... Because Plaintiffs have pleaded the existence of a late-2021 policy apparently lacking the urgency that characterized the regulations and executive orders issued early in the pandemic, [precedent] compels the Court—at least for now—to apply the ordinary tiers of scrutiny to the District’s Policy as alleged.

Among the claims dismissed by the court was the claim that refusal to grant the religious exemptions violated a Missouri statute that prohibits discrimination for refusal to participate in abortions.

Biden Announces Intent to Nominate Charlotte Burrows For Third Term on EEOC

Yesterday, President Biden announced his intent to nominate Charlotte A. Burrows for a third term as a Member of the Equal Employment Opportunity Commission. She has served as Chair of the Commission since 2021. Before her appointment to the EEOC, Burrows served as Associate Deputy Attorney General at the U.S. Department of Justice.  Burrows' nomination must be confirmed by the Senate. The EEOC enforces federal employment anti-discrimination laws, including the ban on religious discrimination.

Christian Pre-School Challenges Exclusion from Colorado State Aid Program

Suit was filed this week in a Colorado federal district court challenging requirements that Colorado has imposed on pre-schools in order for them to participate and receive funding in the state's universal pre-school program. The complaint (full text) in Darren Patterson Christian Academy v. Roy, (D CO, filed 6/20/2023), alleges in part:

9.... [T]he Colorado Department of Early Childhood ... is requiring religious preschools like Darren Patterson Christian Academy to forgo their religious character, beliefs, and exercise to participate in UPK.

10. The Department does so through two provisions that prohibit discrimination against any person based on religion, sexual orientation, or gender identity.

11. So even though the school welcomes all families and children, these provisions would force it to hire employees who do not share its faith and to alter internal rules and policies that are based on the school’s religious beliefs about sexuality and gender, including those that relate to restroom usage, pronouns, dress codes, and student housing during school expeditions and field trips....

Plaintiff contends that the requirements violate its rights under the federal Constitiuion's Free Exercise, Free Speech and Equal Protection Clauses. ADF issued a press release announcing the filing of the lawsuit.

2nd Circuit Rejects Challenge to Abortion Clinic Bubble Zone Law

In Vitagliano v. County of Westchester, (2d Cir., June 21, 2023), the U.S. 2nd Circuit Court of Appeals held that plaintiff, who the court describes as "an aspiring pro-life sidewalk counselor who wishes to approach women entering abortion clinics and engage them in peaceful conversation about abortion alternatives," has standing to challenge Westchester County's recently-enacted 8-foot "bubble-zone" law. The court concluded that plaintiff has standing.  She had demonstrated a credible threat of enforcement of the law against her. Plaintiff conceded that the bubble-zone law survived constitutional attack under existing Supreme Court precedent.  She brought suit hoping to convince the Supreme court to overrule its 2000 decision that upheld a similar law. The 2nd Circuit thus affirmed the district court's dismissal of the challenge to Westchester County's ordinance, opening the way for appellant to seek Supreme Court review. Becket has background on the case.

Colorado Window to Bring Expired Child Sex Abuse Claims Is Unconstitutional

In Aurora Public Schools v. A.S., (CO Sup.Ct., June 20, 2023), the Colorado Supreme Court held that the Child Sexual Abuse Accountability Act 

is unconstitutionally retrospective [under Art. II, Sec. 11 of the Colorado Constitution] to the extent that it permits a victim to bring a claim for sexual misconduct based on conduct that predates the Act and for which previously available causes of action were time-barred.

The Act created a 3-year window during which victims could bring claims for any child sexual abuse that occurred between 1960 and 2022. In the case, plaintiffs sued a former high school coach and his school district for sexual abuse that occurred between 2001 and 2005. The court said in part:

The legislature was careful with S.B. 21-088 not to directly revive time-barred claims, which would plainly impair vested rights.... Instead, it created a three-year window to bring a new cause of action to accomplish the same ends. But the retrospectivity clause prohibits the legislature from “accomplish[ing] that indirectly, which it could not do directly.”...

... Our holding does not affect claims brought under the CSAAA for which the previously applicable statute of limitations had not run as of January 1, 2022.

AP reports on the decision.

RFRA Requires Title VII Exemption for Business Operating on Christian Gender Beliefs

In Braidwood Management, Inc. v. EEOC, (5th Cir., June 20, 2023), the U.S. 5th Circuit Court of Appeals held that RFRA requires an exemption from the sex discrimination provisions of Title VII for a company that operates three related health and wellness businesses on the basis of Christian beliefs regarding sexual orientation and gender identity.  The court said in part: 

RFRA requires that Braidwood ... be exempted from Title VII because compliance with Title VII post-Bostock would substantially burden its ability to operate per its religious beliefs about homosexual and transgender conduct. Moreover, the EEOC wholly fails to carry its burden to show that it has a compelling interest in refusing Braidwood an exemption, even post-Bostock....

Although the Supreme Court may some day determine that preventing commercial businesses from discriminating on factors specific to sexual orientation or gender identity is such a compelling government interest that it overrides religious liberty in all cases, it has never so far held that....

Under RFRA, the government cannot rely on generalized interests but, instead, must demonstrate a compelling interest in applying its challenged rule to “the particular claimant whose sincere exercise of religion is being substantially burdened.”...

[T]he EEOC fails to carry its burden. It does not show a compelling interest in denying Braidwood, individually, an exemption. The agency does not even attempt to argue the point outside of gesturing to a generalized interest in prohibiting all forms of sex discrimination in every potential case. Moreover, even if we accepted the EEOC’s formulation of its compelling interest, refusing to exempt Braidwood, and forcing it to hire and endorse the views of employees with opposing religious and moral views is not the least restrictive means of promoting that interest.

Reuters reports on the decision.

Court Enjoins Arkansas Ban on Gender-Affirming Medical Care

In Brandt v. Rutledge, (ED AR, June 20, 2023), an Arkansas federal district court in an 80-page opinion permanently enjoined the state from enforcing Act 626, the state's ban on gender-affirming medical care for minors.  The court, finding that the Act violates the14th Amendment's equal protection and due process clauses, as well as the 1st Amendment's free speech protections, said in part:

Act 626 prohibits a physician or other healthcare professional from providing “gender transition procedures” to any individual under eighteen years of age and from referring any individual under eighteen years of age to any healthcare professional for “gender transition procedures.”...

The State claims that by banning gender-affirming care the Act advances the State’s important governmental interest of protecting children from experimental medical treatment and safeguarding medical ethics. Throughout this litigation, the State has attempted to meet their heavy burden by offering the following assertions in support of banning gender-affirming medical care for adolescents: (i) that there is a lack of evidence of efficacy of the banned care; (ii) that the banned treatment has risks and side effects; (iii) that many patients will desist in their gender incongruence; (iv) that some patients will later come to regret having received irreversible treatments; and (v) that treatment is being provided without appropriate evaluation and informed consent. The evidence presented at trial does not support these assertions....

Even if the Court found that Act 626 passed constitutional muster under the Equal Protection Clause, it fails under due process analysis.... 

As the Court has previously found, the Parent Plaintiffs have a fundamental right to seek medical care for their children and, in conjunction with their adolescent child’s consent and their doctor’s recommendation, make a judgment that medical care is necessary. “[T]the Fourteenth Amendment ‘forbids the government to infringe . . . ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.’”...

Act 626 is a content and viewpoint-based regulation of speech because it restricts healthcare professionals from making referrals for “gender transition procedures” only, not for other purposes. As a content and viewpoint-based regulation, it is “presumptively unconstitutional” and is subject to strict scrutiny...

 Arkansas Attorney General Tim Griffen in a statement said that he plans to appeal the decision to the 8th Circuit.  The Hill reports on the court's decision.

Supreme Court Denies Review in Christian College's Challenge to Fair Housing Act Enforcement

The U.S. Supreme Court yesterday denied review in The School of the Ozarks v. Biden, (Docket No. 22-816, certiorari denied, 6/20/2023). (Order List). In the case, the U.S. 8th Circuit Court of Appeals held in a 2-1 decision that a Christian college lacks standing to challenge a memorandum issued by an acting assistant secretary of the U.S. Department of Housing and Urban Development. The memorandum directs the HUD office that enforces the Fair Housing Act to investigate all discrimination complaints, including discrimination on the basis of sexual orientation or gender identity. The school's religiously-inspired Code of Conduct specifies that biological sex determines a person's gender. The school maintains single-sex residence halls and does not permit transgender individuals to live in residence halls that do not match their biological sex. (See prior posting.)

Supreme Court GVR's South Carolina Planned Parenthood Defunding Case

In Kerr v. Planned Parenthood, (Sup. Ct., Docket No. 21-1431, June 20, 2023) (Order List), the Supreme Court remanded for further consideration South Carolina's appeal of a 4th Circuit decision that barred South Carolina from terminating Medicaid funding to Planned Parenthood. The Court's action today granted certiorari, vacated the judgment below and remanded the case in light of the Court's June 8, decision in Health and Hospital Corporation of Marion Cty. v. Talevski. That case held that 42 USC §1983 may be used to enforce rights created by statutes enacted under Congress' spending power, a holding consistent with the 4th Circuit's decision below in Kerr. Here is the SCOTUSblog's case page for the Kerr case, with links to all the pleadings and briefs in the case. Reuters reports on today's Supreme Court ruling.

Army Appeals Court: Poisoning Through Vodou Not Protected by Free Exercise Clause or RFRA

In United States v. Lindor, (ACCA, June 14, 2023), the Army Court of Criminal Appeals rejected appellant's claim that his murder sentence violated his free exercise rights under the 1st Amendment and RFRA.  The case involves a Staff Sergeant who, after multiple attempts, succeeded in murdering his wife through the use of rituals and poisons recommended by a Vodou practitioner in Haiti. The court said in part:

[A]ppellant's actions to summon Vodou rituals ... were consistent with his First Amendment right to freely exercise his religious beliefs.... [T]he record contains no indication that they called for any illegal activity or result.... The stipulation's derogatory references to these Vodou rituals—after all, they were categorized as "aggravation" evidence—violated the First Amendment's free exercise clause. The government, consistent with the Constitution's guarantee of free exercise, "cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices."...

However, our analysis does not end there,.... [Appellant] waived his objection to evidence of these particular spells in two ways.... First, the military judge directly advised appellant and his counsel that, if he admitted it, he would consider the stipulation of fact to decide whether appellant was guilty, and, if so, an appropriate sentence; appellant and his counsel agreed. Second, the military judge specifically asked appellant's counsel whether he had any objections to the stipulation; counsel responded, "No, Your Honor."...

Turning to appellant's violence toward RL, we view this as substantially different from the rituals about AD and government officials. We have searched for, but cannot find, any authority to support appellant's tacit argument that the First Amendment's "free exercise" clause can broadly shield one from government action to describe, prosecute, and punish conduct that unlawfully endangers another person's life...

Put plainly, we decline to characterize appellant's violent misconduct toward RL as the free exercise of religious belief.... [A]ctivities that harm others are not protected by the free exercise clause. To characterize appellant's chosen techniques to plan, express, and actuate his intent to murder RL as the free exercise of his religious beliefs would expropriate the free exercise clause of any principled, reasonable meaning. The United States Constitution's framers and the various ratifying conventions plainly and deliberately did not contemplate that one could seek protection in the clause for an act that violated another's right to be free from malicious violence.

FBI Charges Michigan Man with Plotting Mass Casualty Attack at Synagogue

Last week, the FBI filed a Criminal Complaint charging a 19-year-old Michigan man with taking steps to plan a mass casualty suicide attack on a synagogue in Lansing, Michigan. The Criminal Complaint (full text) in United States v. Seann Patrick Pietila, (WD MI, filed 6/16/2023) sets out extensive Instagram postings and alleges in part:

[Pietla] communicated Neo-Nazi style ideology, antisemitism, suicidal ideologies, glorification of past mass shooters (that advocate similar ideology), and a desire and his intent to mimic past mass shooters/mass casualty incidents.

... [He] specifically references admiration for Brenton Tarrant.... Tarrant committed acts of mass murder in New Zealand. On March 15, 2019, Tarrant committed two consecutive mass shootings on Mosques located in New Zealand. Tarrant killed 51 people and injured 40 more. Tarrant live-streamed his attack via Facebook Live.

The Criminal Complaint alleges violation of 18 U.S.C. § 875(c) which bans sending in interstate commerce any communication containing a threat to injure another person, reports:

During the execution of the search warrant, investigators located the following items of evidence: .40 caliber pistol ammunition, .22 caliber ammunition, 12 gauge shotgun ammunition, a 12-gauge shotgun, a .22 caliber rifle, a Sig Sauer .40 caliber pistol (serial # 24B049058), .223 rifle magazines, an Apple iPhone 11, various knives and bladed instruments, scopes and firearms accessories, a camouflage tactical vest, a black tactical vest, black skull masks, a red and white Nazi flag, a ghillie suit, gas masks, and military sniper/survival manuals.

 Law & Crime reports on the charges.

Recent Articles of Interest

From SSRN:

• Richard W. Garnett, Justice Breyer and the Establishment Clause: Notes on 'Appeasement,' 'Legal Judgment,' and 'Divisiveness', (First Amendment Law Review (2023)).
• Rohan Tigadi, The Anatomy and Constitutionality of Religious Conversion Laws in India, (Feb 18, 2023).
• Brady Earley, Data-Driven Accommodations: Religious Exemptions in Markets of Discrimination, (May 23, 2023).
• Perry Dane, Weaponization, Polarization, and the Structure of Religious Exemptions, (June 11, 2023).
• Susan Frelich Appleton & Laura A. Rosenbury, Reflections on “Personal Responsibility” after COVID and Dobbs: Doubling Down on Privacy, 972 Wash. U J.L. & Pol'y 129 (2023)).
• Teneille R. Brown, Abortion and the Extremism of Bright Line Rules,  (Northwestern University Law Review, Forthcoming).

From SmartCILP:

• Abner S. Greene, The Dilemma of Liberal Pluralism, 70 Buffalo Law Review 1637-1753 (2022).
• Sebastian Guidi, Law over Legalism: International Court Legitimacy in Lautsi v. Italy, 33 Duke Journal of Comparative & International Law 45-96 (2022).
• Shalini Bhargava Ray, Noncitizen Harboring and the Freedom of Association,101 North Carolina Law Review 677-728 (2023).
• Radhika Saxena & Rajarshi Sen, The Instant Triple Talaq Judgment—Its Contents and Discontents, 25 University of Pennsylvania Journal of Law & Social Change 53-80 (2021).

Reports:

• Inter-Parliamentary Union, Parliamentary Report on Religion and Belief: Working Towards More Peaceful and Inclusive Societies, (June 2023).

California Law Does Not Interfere With Pre-Schools' Religious Curriculum

In Foothills Christian Church v. Johnson, (SD CA, June 15, 2023), a California federal district court dismissed a free exercise challenge by Christian pre-schools to California's child care licensing requirement. It held that California's Child Day Care Facilities Act does not prevent the schools from offering a program that includes compulsory participation in religious activities and events. While the Act requires that schools make attendance at religious activities voluntary in the discretion of the child's parents or guardian, it also allows schools to refuse to admit children whose parents or guardians are unwilling to agree that their children will attend religious instruction and activities. The court thus held that since plaintiffs inaccurately assessed the Act's requirements, they lack standing to pursue their free exercise claims.

Iowa Supreme Court, 3-3, Affirms Invalidation Of Heartbeat Abortion Law

As previously reported, in 2019 an Iowa state trial court judge held that Iowa's "fetal heartbeat" abortion law violates the Iowa state constitution. The case was not appealed. However, in 2022 the state filed a motion to dissolve the injunction and revive the law. The trial court refused to do so, and that decision was appealed to the Iowa Supreme Court.  Now in Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Sup. Ct., June 16, 2023), the Iowa Supreme Court announced that it was evenly divided, 3-3, on the case (with one Justice recused), so that by operation of law the trial court's decision stands. However individual Justices filed opinions in the case. 

The newly decided case was made more complicated by a decision of the Iowa Supreme Court last year in which it rejected subjecting a different abortion regulation to strict scrutiny under the state Constitution, but did not decide what level of scrutiny should apply.  This left the standard to be the undue burden test imposed by federal law. (See prior posting.)

Now in last week's decision on the fetal heartbeat law, Justice Waterman (joined by Chief Justice Christensen and Justice Mansfield ) wrote that they would not grant the discretionary writ of certiorari, thus refusing to review the trial court decision. He went on to indicate that even if review were granted, they would affirm the trial court, saying in part:

The law as of today has not changed in a way that removes the “constitutional defect” in the fetal heartbeat bill. The undue burden test remains the governing standard under the Iowa Constitution, and the State concedes, as it must, that the fetal heartbeat bill is unconstitutional under that test. The State therefore has failed to establish that the district court acted illegally. There is no basis for certiorari relief.

Justice McDonald filed a separate opinion, joined by Justices McDermott and May, saying in part:

Because there was no controlling decision from this court..., the district court should have applied this court’s other controlling precedents to constitutional claims of this type. Under this court’s controlling precedents, where there is no fundamental right at issue, statutes are subject only to rational basis review.

Justice McDermott filed a separate opinion, joined by Justices McDonald and May, saying in part:

Last year, we were presented with an appeal challenging the constitutionality of a different statute regulating abortion, yet we failed to declare the constitutional standard that applied. This case again presented that same basic task. And for the second time in as many years, we’ve ducked it. It isn’t for us to dictate abortion policy in the state, but simply to interpret and apply the law as best we can in cases that come before us. We fail the parties, the public, and the rule of law in our refusal today to apply the law and decide this case. 

Des Moines Register reports on reactions to the decision.

Maine Sued Over New Limits On Religious Schools In Tuition Payment Program

 On Tuesday, a Catholic school in Maine and parents who would like to send their children to that school under Maine's tuition payment program for students from districts without public high schools filed suit in a Maine federal district court challenging new restrictions which the Maine legislature imposed on schools participating in the tuition payment program. The complaint (full text) in St. Dominic Academy v. Makin, (D ME, filed 6/13/2023), contends that the legislature enacted the new provisions to exclude religious schools after the U.S. Supreme Court in Carson v. Makin invalidated a requirement that participating schools be nonsectarian. The complaint explains: 

Among other things, Maine:

• Imposed a new religious neutrality requirement on schools, stating that “to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing”;

• Imposed a new religious nondiscrimination requirement on schools; and

• Removed the religious exemption that had previously allowed religious (but “nonsectarian”) schools to handle sensitive issues relating to sexual orientation and gender identity in a way that reflected their faith commitments....

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

Religion Is Relevant In Trial For Marketing Unlicensed Drug

In United States v. Grenon, (SD FL, June 12, 2023), a Florida federal district court, ruled on a motion in liwas through which the government was seeking to exclude various pieces of evidence in the criminal trial of defendants for manufacturing, marketing and distributing an unlicensed drug. The court summarized the charges against defendants:

Defendants are members of Genesis II Church of Health and Healing ... which the Government alleges is “an explicitly nonreligious entity that [Defendant, Mark Scott Grenon] co-founded[.]”...

Under the guise of Genesis, Defendants promoted MMS as a miracle cure to various illnesses and ailments, even though “[w]hen ingested orally as directed by [] Defendants, MMS became chlorine dioxide, a powerful bleaching agent typically used for industrial water treatment or bleaching textiles, pulp, and paper.”...

The court ruled in part:

The Government first seeks to prevent Defendants from suggesting that their conduct was “a religious exercise, constitutionally protected under the First Amendment.”...

... [C]onsidering the Government’s accusations regarding Defendants and Genesis..., it would likely be impossible to conduct this trial without discussion of Defendants’ alleged religion, as well as their personal beliefs regarding the First Amendment...

The court also refused to preclude defendants from raising a defense under RFRA, but did rule that the applicability of RFRA is a pure question of law so that no jury instruction on the applicability of RFRA should be permitted.

Church Autonomy Doctrine Requires Dismissal of Title VII Claim By Non-Ministerial Employee

In McMahon v. World Vision Inc., (WD WA, June 12, 2023), a Washington federal district court dismissed a Title VII sex discrimination suit, finding it is barred by the Church Autonomy Doctrine.  A Christian ministry's job offer to plaintiff for the full-time position of Donor/Customer Service Representative Trainee was rescinded when defendant learned that plaintiff was in a same-sex marriage. The court discussed the relationship between the Church Autonomy Doctrine and the Ministerial Exception, concluding that the Church Autonomy Doctrine may be invoked when a non-ministerial employee brings a Title VII action.  The court said in part:

... [T]he Church Autonomy Doctrine requires the court to abstain from resolving employment discrimination claims where a religious institution takes an adverse action pursuant to a religious belief or policy—regardless of whether the employer allegedly discriminated on religious or other protected grounds—unless it is possible for the court resolve the claims without resolving underlying controversies over religious doctrine or calling into question the reasonableness, validity, or truth of a religious doctrine or practice....

The court joins other courts ... in cautioning religious employers against over-reading the impact of the court’s holding. It is by no means the case that all claims of discrimination against religious employers are barred....  [I]f a religious employer does not offer a religious justification for an adverse employment action against a non-ministerial employee or if the plaintiff presents sufficient secular evidence that would allow a factfinder to conclude that the religious justification was pretext without wading into the plausibility of the asserted religious doctrine, it is unlikely that serious constitutional questions will be raised by applying Title VII.

New York Sues Anti-Abortion Group That Physically Obstructs Clinics

New York Attorney General Letitia James announced last week that she has filed suit against the anti-abortion group Red Rose Rescue and various of its members seeking to enjoin them from physically interfering with persons seeking abortions or providing abortion services. The complaint (full text) in People of the State of New York v. Red Rose Rescue, (SD NY, filed 6/8/2023), alleges in part:

8. Red Rose Rescue is an anti-abortion group whose members conspire to illegally trespass into private medical facilities that perform abortions and shut down or physically obstruct the provision of all reproductive health services, refusing all requests to leave by staff and law enforcement. 

9. Criminal trespass at reproductive health facilities is not incidental to Red Rose Rescue members’ activism, but rather is the core mission of their group.

The complaint alleges violations of the federal Freedom of Access to Clinic Entrances Act and New York's Clinic Access Act. In addition to injunctive relief, the suit also seeks damages and civil penalties. Catholic News Agency reports on the lawsuit.