Wednesday, July 05, 2023

Court Says Dobbs Decision Does Not Undercut Freedom of Access To Clinic Entrances Act

In United States v. Gallagher, (MD TN, July 3, 2023), a Tennessee federal district court became the first court to rule on whether the Supreme Court's Dobbs decision affects the constitutionality of the Freedom of Access to Clinic Entrances ("FACE") Act.  In the case, eleven co-defendants sought dismissal of their indictments for violating FACE. They first argued that since Dobbs held abortion is not entitled to heightened protection under the 14th Amendment, Congress' reliance in enacting the law on its 14th Amendment Section 5 enforcement powers is undercut. The court responded in part:

While the question of how section 5 applies to the FACE Act may be of some abstract or academic interest, however, it is of limited practical importance, given that section 5 is only one of two powers on which Congress relied in enacting the FACE Act, the other of which—the power to regulate interstate commerce—was not at issue in Dobbs.

Later in its opinion, the court rejected defendants' argument that Dobbs effectively created a carveout of abortion services from commerce clause coverage. It also rejected defendants' argument that they could not be prosecuted under 18 USC §241 for conspiring to prevent the exercise of a federal right. The court said "§ 241 does not require that the right in question be constitutional, only that it be federal. FACE is, of course, a federal statute...."

The court also rejected defendants' argument that the government is engaged in impermissible selective enforcement because it has not brought enough prosecutions under the FACE Act against individuals who have interfered in the operation of anti-abortion “crisis pregnancy centers.”

It went on to reject defendants' free speech arguments, saying in part:

Nor is the FACE Act being applied in an unconstitutional manner to these particular defendants based on their viewpoints or participation in First Amendment-protected activities, as would be required for a so-called “vindictive prosecution” defense. “...

Because there is no actual evidence of any such improper motive, the defendants engage in a sleight of hand, whereby they have treated any statement by the Department of Justice indicating a desire to safeguard access to abortion as evidence of a desire to punish these defendants for Dobbs. The defendants, though, are not the center of the moral or political universe. A desire to safeguard access to abortion is a desire to safeguard access to abortion—not an affront directed at them. More importantly, safeguarding access to abortion is, particularly under Dobbs, an entirely appropriate thing for legislatures and executives to do, if that is the course they choose. Indeed, it is harder to imagine a more fulsome endorsement of the elected branches’ power to set abortion policy than Dobbs...

Moving to defendants' Free Exercise/ RFRA claims, the court said in part:

The boundaries of the Free Exercise Clause are a topic of much disagreement.... The defendants’ argument, however, goes to something much more fundamental. Although the defendants go to great lengths to make this issue more complicated than it is, they ultimately ask a straightforward question: Does the Free Exercise Clause grant individuals who are acting out of religious motivations freedom to commit actions that otherwise would be crimes against the person or property of others through physical invasion, intimidation, or threat? The answer is similarly straightforward: No, it does not....

The defendants argued that RFRA requires that the state have a compelling interest to substantially burden religious exercise, and that after Dobbs there cannot be a compelling interest in protecting access to abortion. The court responded in part:

... [T]he Supreme Court has never held that a “compelling interest” depends upon something being considered a fundamental right. They are different constitutional concepts, performing different jurisprudential functions.

Court Strongly Criticizes Performance of Counsel for The Satanic Temple

In March 2021, The Satanic Temple and one of its members filed suit in a Texas federal district court challenging Texas' requirement that a woman have a sonogram prior to an abortion. The complaint alleged that in light of the Satanic Temple's Satanic Abortion Ritual, the Texas requirement violated plaintiffs' free exercise, substantive due process and equal protection rights. (See prior posting.) After the U.S. Supreme Court's Dobbs decision, The Satanic Temple filed a Third Amended Complaint.  In The Satanic Temple, Inc. v. Young, (SD TX, July 3, 2023), the Texas district court then dismissed the suit for lack of standing and on sovereign immunity grounds.  The court added:

Without any supporting detail, Plaintiffs assert two causes of action under the First Amendment, one being a claim swirling together the Free Speech and Free Exercise Clauses, and the other pertaining to the Establishment Clause. Young argues that these claims are so inadequately pleaded as to deprive her of fair notice as to what exactly this suit is about in the wake of Dobbs....

The court also refused to grant plaintiffs leave to replead their claims.  In doing so, the court set out an unusually strong criticism of the performance of plaintiffs' counsel, saying in part:

Given the detail of the prior complaints and these substantial changes in the law, the deficiencies in the operative complaint are no doubt intentional. And indeed, the filing of a willfully deficient amended complaint is of a piece with the mulish litigation conduct by counsel for Plaintiffs, Attorney Matt Kezhaya, in this and other actions representing The Satanic Temple. Recently considered in this regard was whether to revoke his permission to proceed pro hac vice in light of sanctions entered against him in other federal courts after his appearance here. For example, [in one of those cases:]

He ... filed a second motion for TRO containing negligible legal analysis, with six pages of the main analysis dedicated to presentation of what’s purported to be a five-act play.....

Litigation of constitutional claims is a serious matter. Such issues deserve serious attention from counsel desiring to be taken seriously. As it turns out, Plaintiffs might have been better served by proceeding pro se, as applicable standards would dictate that their filings would be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers.”...

And any repleading at this stage would manifest undue prejudice to a range of current and former Defendants who still have little clue as to the exact nature of the claims brought in this case. The Court is also of the firm belief that any further attempt at repleading would be futile, given that Attorney Kezhaya’s filings become more conclusory, reductive, and intemperate over time, in line with his performative and obstinate conduct to date.

Suit Challenges Georgia Ban on Treatment of Minors for Gender Dysphoria

Suit was filed last week in a Georgia federal district court challenging the constitutionality of Georgia Senate Bill 140 which prohibits irreversible sex reassignment surgery and hormone replacement treatment of minors for gender dysphoria. The complaint (full text) in Koe v. Noggle, (ND GA, filed 6/29/2023), alleges in part:

The Health Care Ban violates the fundamental rights of parents to make medical decisions to ensure the health and well-being of their children. By prohibiting medical providers from treating minors with gender dysphoria—a rare condition often requiring medical and therapeutic treatment and care—in accordance with the standards of care and clinical practice guidelines, the Ban prohibits Georgia parents from seeking and obtaining appropriate medical treatment for their children.

... [It] also violates the guarantees of equal protection by denying transgender youth essential, and often lifesaving, medical treatment based on their sex and on their transgender status.

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

Tuesday, July 04, 2023

Defendant's Beliefs About Psilocybin Were Personal, Not Religious

In State of Ohio v. Sobel, (OH App., June 30, 2023), an Ohio appellate court rejected appellant's claim that his sentence for drug possession was based in part on his statements about his use of mushrooms as part of his religion. The court said in part:

... Sobel failed to establish that he uses psilocybin mushrooms in connection with a sincerely held religious belief. He described the “Church of Freewater” as consisting of three people providing life coaching to drug and alcohol addicted persons in the manner of Tony Robbins (a noted inspirational, self-help, motivational personality). Sobel does not describe any particular religious beliefs or tenets of the organization, other than to help people “be themselves, through mind, body, and spirit.” Freewater’s core belief appears to be allowing people to believe whatever he or she wants to believe....

Sobel also does not describe how the mushrooms are utilized in furtherance of the religion as part of a rite or ceremony. He only states opaquely, “mushrooms are a holy sacrament and [unintelligible] medicine for myself and for the Freewater organization that helps me with past traumas both immediate and ancestral and tap into the divine knowledge that is only accessible with the aid of these divine teachers.” ...

[T]hroughout the proceedings, rather than claiming a religious use, Sobel represented that mushrooms were used to treat chronic pain and PTSD.

Under the circumstances of this case, the alleged belief that was infringed would be most accurately characterized as a personal preference, rather than as a deeply held religious conviction.

Monell Claims Opposing Transcendental Meditation Program in Chicago Schools Move Ahead

In Hudgins v. Board of Education of the City of Chicago, (ND IL, June 30, 2023), two former high school students and the mother of one of the students sued claiming that a Quiet Time transcendental meditation program in the Chicago public schools violated the Free Exercise and Establishment Clauses as well as the Illinois Religious Freedom Restoration Act. Plaintiffs claim that the program contained hidden Hindu religious elements. A number of plaintiffs' claims were dismissed, primarily on statute-of-limitations grounds. However, the court allowed plaintiffs to move ahead with their Section 1983 Monell claims for damages against the Chicago Board of Education and the David Lynch Foundation which operated the program under contract in the schools.

Monday, July 03, 2023

4th Circuit Panel Members Disagree on Use of Ministerial Exception Doctrine in Suit Against Liberty University

 In Palmer v. Liberty University, Inc., (4th Cir., June 30, 2023), the three judges on the panel of the U.S. 4th Circuit Court of Appeals disagreed on whether they should consider the ministerial exception doctrine in deciding an age discrimination case brought by a Liberty University art professor.  In 2018, the University notified plaintiff who was then 79 years old that her teaching contract would not be renewed for the following year. Judge King's majority opinion held that the professor had not produced evidence of age discrimination. Instead, the university dismissed her because she was not meeting its expectations regarding digital art skills. 

Despite that favorable ruling, the University, in a cross-appeal, asked the court to also rule that the ministerial exception doctrine applied. Judge King held that the court need not reach that issue.

Judge Richarson filed a concurring opinion contending that dismissal of the professor's claim should be based on the ministerial exception doctrine, saying in part:

Though Palmer did not perform formal religious instruction, her job description required her to integrate a “Biblical worldview” into her teaching. And Palmer admits to regularly praying with students, indeed starting her classes with a psalm or a prayer. Accordingly, Liberty viewed her as an official “messenger” of its faith...

If a court imposes a minister on a congregation that doesn’t want her—even if the court does so based on employment-law principles—it nonetheless impinges on the church’s religious interest in choosing who speaks for it....

Skirting the ministerial exception by dismissing an employment-discrimination claim on its merits forces us to inquire into the church’s motives for firing its minister. But, as discussed already, the church’s decision is intrinsically bound up in religious doctrine. To subject such a decision to the scrutiny of temporal courts threatens the church’s “power to decide for themselves, free from state interference, matters of . . . faith.”...

Because Palmer—like every professor at Liberty—served as the school’s religious “messenger” to its students, she was its “minister” for First Amendment purposes. The ministerial exception thus bars her employment-discrimination claim.

Judge Motz filed a concurring opinion responding to Judge Richardson's opinion.  Judge Motz said in part:

Make no mistake: the conception of the ministerial exception advanced by my concurring colleague is no mere application of existing precedent. It is a dramatic broadening of the ministerial exception that would swallow the rule.... 

The ministerial exception effectively “gives an employer free rein to discriminate because of race, sex, pregnancy, age, disability, or other traits protected by law when selecting or firing their ‘ministers,’ even when the discrimination is wholly unrelated to the employer’s religious beliefs or practices.”... It is no exaggeration to say that the ministerial exception “condones animus.”...  Thus, the necessary implication of greatly expanding the ministerial exception is that far fewer employees would be protected from employment discrimination.

When it comes to key religious figures, this is a necessary tradeoff.... 

But Palmer was not a key religious figure or a minister. She was an art professor. Indeed, if basic acts like praying with one’s students and referencing God in the classroom are enough to transform an art professor into the type of key faith messenger who qualifies for the ministerial exception, one can only speculate as to who else might qualify for the exception...

An employee does not shed her right to be free from workplace discrimination simply because she believes in God, prays at work, and is employed by a religious entity.

Recent Articles of Interest

From SSRN:

From SmartCILP:

  • Jeremy P. Kehr, Fundamental Rights in the United States Court of Federal Claims, 35 Regent University Law Review 233-256 (2023).
  • Ariel J. Liberman, Educational Permutations: The Church's Canon Law as Inspiration for Changes to Education Regulation, [Abstract], 35 Regent University law Review 257-294 (2023).
  • Mallory B. Rechtenbach, Personal Foul-- Encroachment: How Kennedy v. Bremerton School District Blurs the Line between Government Endorsement of Religion and Private Religious Expression, [Abstract], 35 Regent University Law Review 295-338 (2023).

Sunday, July 02, 2023

Indiana Supreme Court Rejects Facial Challenge to State's Abortion Law

In Members of the Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., (IN Sup. Ct., June 30, 2023), the Indiana Supreme Court rejected a facial challenge under the Indiana Constitution to Indiana's 2022 abortion law. The law bans abortions except when necessary to save a woman’s life or to prevent a serious health risk, or during limited time periods when there is a lethal fetal anomaly or when the pregnancy results from rape or incest. Interpreting the broad language of Art. I, Sec, 1 of the Indiana Constitution, the court said in part: 

... Article 1, Section 1 protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk. Yet, this holding does not support Plaintiffs’ claim for a preliminary injunction. That is because they framed their claim as a facial challenge to the entire statute in all conceivable circumstances rather than an as-applied challenge to the law’s application in any particular set of circumstances where a pregnancy endangers a woman’s life or health. So this appeal does not present an opportunity to establish the precise contours of a constitutionally required life or health exception and the extent to which that exception may be broader than the current statutory exceptions....

We do not diminish a woman’s interest in terminating a pregnancy because, for starters, it is a privately held interest—informed by privately held considerations. Moreover, we recognize that many women view the ability to obtain an abortion as an exercise of their bodily autonomy. Yet, and however compelling that interest is, it does not follow that it is constitutionally protected in all circumstances....

In sum, our State’s history and traditions, as reflected in our Court’s precedents, indicate that the common understanding of Section 1 among those who framed and ratified it was that it generally left the General Assembly with broad legislative discretion to limit abortion....

Justice Slaughter filed an opinion concurring only in the judgment, saying in part:

For the first time in our state’s history, the Court holds that the Indiana Constitution protects a woman’s right to terminate her pregnancy. The Court’s unprecedented conclusion is both momentous and unnecessary on this record. The only issue before us is the propriety of the trial court’s preliminary injunction. That narrow issue can, and thus should, be resolved without reaching any of the constitutional questions upon which the Court opines gratuitously...

Justice Goff filed an opinion concurring in part and dissenting in part, saying in part:

To be sure, Senate Bill 1 itself recognizes a woman’s liberty interest, if only in part, by allowing time-limited exceptions for victims of rape and incest and pregnancies involving a lethal fetal anomaly. But by holding that the legislature retains the discretion “to prohibit abortions which are unnecessary to protect a woman’s life or health,” the Court puts these exceptions at risk, effectively inviting the legislature to repeal even the most basic protections to a woman’s liberty....

It seems to me that reproductive liberty is too personal and too important for the General Assembly to set at naught when weighed in the balance against the protection of fetal life.

Indy Star reports on the decision.

Saturday, July 01, 2023

Certiorari Granted in Case on Interpretation of Title VII

On Friday, the U.S. Supreme Court granted review in Muldrow v. St. Louis, MO, (Docket No. 22-193, certiorari granted 6/30/2023) (Order List), a Title VII employment discrimination case. The grant of certiorari was limited to the question of:

Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?

At issue is a Title VII sex discrimination claim by a female police sergeant who was transferred from the St. Louis police department's Intelligence Division to work in the city's Fifth District and was subsequently denied a transfer to the Second District. The Court of Appeals in Muldrow v. City of St. Louis, (8th Cir., April 4, 2022), held that absent a showing of harm resulting from a transfer, there has been no adverse employment action for purposes of Title VII. The Court's decision will impact religious discrimination in employment cases under Title VII as well as sex discrimination cases. Here is SCOTUSblog's case page with links to all the filings in the Supreme Court in the case.

Supreme Court GVR's Case on Bakers' Refusal To Design Cake For Same-Sex Wedding

On Friday, in Klein v. Oregon Bureau of Labor and Industries, (Docket No. 22-204, GVR'd June 30, 2023) (Order List) the U.S. Supreme Court granted certiorari, vacated the lower court's judgment and remanded the case to the Oregon Court of Appeals for further consideration in light of the Supreme Court's decision the same day in 303 Creative LLC v. Elenis. At issue in Klein was a finding by the state Bureau of Labor and Industries that the owners of Sweetcakes bakery violated Oregon's public accommodation law when they refused on religious grounds to design and create a wedding cake for a same-sex wedding. (See prior posting.)

Friday, June 30, 2023

Supreme Court: Web Designer's Free Speech Rights Allow Her to Refuse to Design Websites for Same-Sex Weddings

The U.S. Supreme Court today in 303 Creative LLC v. Elenis, (Sup. Ct., June 30, 2023), in a 6-3 decision, held that the 1st Amendment's free speech protections bars Colorado from using its public accommodation anti-discrimination law to require a wedding website designer to design websites for same-sex weddings in violation of her religious beliefs. Justice Gorsuch's majority opinion says in part:

The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as “pure speech” under this Court’s precedents.... We agree....

Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait.... Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages.....

Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.”... But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world’s great works of literature and art were created with an expectation of compensation. Nor, this Court has held, do speakers shed their First Amendment protections by employing the corporate form to disseminate their speech. This fact underlies our cases involving everything from movie producers to book publishers to newspapers....

In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.

Justice Sotomayor, joined by Justices Kagan and Jackson, filed a dissenting opinion, saying in part:

A public accommodations law has two core purposes. First, the law ensures “equal access to publicly available goods and services.”...

Second, a public accommodations law ensures equal dignity in the common market. Indeed, that is the law’s “fundamental object”: “to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’”...

Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today. Today, the Court shrinks....

This Court has long held that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.”...

CADA’s Accommodation Clause and its application here are valid regulations of conduct. It is well settled that a public accommodations law like the Accommodation Clause does not “target speech or discriminate on the basis of its content.”... Rather, “the focal point of its prohibition” is “on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services.”...

Petitioners remain free to advocate the idea that same-sex marriage betrays God’s laws.... Even if Smith believes God is calling her to do so through her for-profit company, the company need not hold out its goods or services to the public at large. Many filmmakers, visual artists, and writers never do....

The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God . . . did not intend for the races to mix.’”... Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child.... And so on.....

AP reports on the decision.

Court Refuses To Enjoin New York's Ban On Firearms In Places of Worship

In Goldstein v. Hochul, (SD NY, June 28, 2023), a New York federal district court refused to issue a preliminary injunction in a challenge to New York's 2022 Concealed Carry Improvement Act that bans carrying firearms in "sensitive locations," including "any place of worship or religious observation."  The suit, filed by an Orthodox Jewish congregation, its president, and Jewish residents of New York who say that they have carried handguns for self-defense in synagogues. The court rejected Second Amendment, First Amendment Free Exercise, Equal Protection, and void-for vagueness challenges to the law. Discussing plaintiffs' Second Amendment challenge, the court said in part:

Beyond the historical record of laws restricting the carrying of firearms in places of worship, there is also historical precedent for the restriction of firearm-carry for law-abiding citizens either in specific physical locations or for public safety reasons....

The laws cited by Plaintiffs concerning the mandatory carry of firearms in places of worship are rooted in racial supremacy, and had the reprehensible and shameful goal of preserving slavery. They should not be considered or at a minimum deserve little or no weight in the analysis of the history and tradition of the regulation of firearm carry by law-abiding citizens for self-defense. However, the fact that these regulations existed suggests that legislatures have long exercised significant regulatory power over firearm carry, and individuals’ ability to carry firearms in houses of worship.

Responding to plaintiffs' Free Exercise and equal protection claims, the court said in part:

Plaintiffs’ claim that their religious practice is burdened by the Challenged Provision of the CCIA because they would prefer to worship while carrying a firearm does not establish a free exercise claim. Having a preference to worship while carrying a firearm is not a religious practice.....

The Challenged Provision applies to all individuals, regardless of their religious beliefs, practices, or identity. Individuals of all religions or no religion are forbidden from possession of firearms in places of worship.

Preliminary Injunction Issued Against Tennessee's Ban on Gender-Affirming Treatment for Minors

In L.W. v. Skrmetti,(MD TN, June 28, 2023), a Tennessee federal district court issued a preliminary injunction against enforcement of SB1 insofar as it bans health care personnel from providing or offering minors puberty blockers or hormone treatments for gender dysphoria. (Plaintiffs lacked standing to challenge the law's ban on gender-affirming surgery.) The court concluded that plaintiffs demonstrated a substantial likelihood of success on their due process claim, saying in part:

The Court ... agrees with Plaintiffs that under binding Sixth Circuit precedent, parents have a fundamental right to direct the medical care of their children, which naturally includes the right of parents to request certain medical treatments on behalf of their children....

It similarly found that plaintiffs had demonstrated a substantial likelihood of success on their equal protection claim, saying in part:

Defendants’ argument that SB1 does not discriminate based on transgender status is unpersuasive....

The Court is satisfied that current precedent supports the finding that transgender individuals constitute a quasi-suspect class under the Equal Protection Clause....

[T]he Court finds that SB1 discriminates on the basis of sex, which in turn provides an alternative basis for the application of intermediate scrutiny.

ACLU issued a press release announcing the decision. [Posting updated to clarify scope of holding.]

Thursday, June 29, 2023

Supreme Court Says "De Minimis" Is Incorrect Standard for Religious Accommodation Under Title VII

The U.S. Supreme Court today in Groff v. DeJoy,(Sup. Ct., June 29, 2023), held that lower courts have largely been misreading the Hardison case's standard for determining when accommodation of religious practices of employees imposes an "undue hardship on the conduct of the employer's business." The case involves a postal worker who was seeking accommodation of his Sabbath observance. In a unanimous decision, written by Justice Alito, the Court said in part:

Today, the Solicitor General disavows its prior position that Hardison should be overruled—but only on the understanding that Hardison does not compel courts to read the “more than de minimis” standard “literally” or in a manner that undermines Hardison’s references to “substantial” cost....With the benefit of comprehensive briefing and oral argument, we agree.

We hold that showing “more than a de minimis cost,” as that phrase is used in common parlance, does not suffice to establish “undue hardship” under Title VII. Hardison cannot be reduced to that one phrase. In describing an employer’s “undue hardship” defense, Hardison referred repeatedly to “substantial” burdens, and that formulation better explains the decision. We therefore, like the parties, understand Hardison to mean that “undue hardship” is shown when a burden is substantial in the overall context of an employer’s business....

[B]oth parties agree that the language of Title VII requires an assessment of a possible accommodation’s effect on “the conduct of the employer’s business.”... As the Solicitor General put it, not all “impacts on coworkers . . . are relevant,” but only “coworker impacts” that go on to “affec[t] the conduct of the business.”...

An employer who fails to provide an accommodation has a defense only if the hardship is “undue,” and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.” If bias or hostility to a religious practice or a religious accommodation provided a defense to a reasonable accommodation claim, Title VII would be at war with itself....

Second, ... Title VII requires that an employer reasonably accommodate an employee’s practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations.... Faced with an accommodation request like Groff’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.

Justice Sotomayor, joined by Justice Jackson, filed a concurring opinion, saying in part:

Petitioner Gerald Groff asks this Court to overrule Hardison.... The Court does not do so. That is a wise choice because stare decisis has “enhanced force” in statutory cases.De   

Court Issues Preliminary Injunction Against Kentucky Ban on Puberty Blockers and Hormonal Treatment for Minors

 In Doe v. Thornbury, (WD KY, June 28, 2023), a Kentucky federal district court issued a preliminary injunction barring the state from enforcing the portions of SB150 that prohibit health care providers from prescribing puberty blockers or testosterone, estrogen, or progesterone to minors suffering from gender dysphoria. The court held that the ban violates the equal protection rights of minors as well as parents' due process rights to make medical decisions for their children. CNN reports on the decision.

ADL Reports Rise in Online Hate and Harassment

 On Tuesday, the Anti-Defamation League released its report titled Online Hate and Harassment: The American Experience 2023 (full text). The Executive Summary reads in part:

Over the past year, online hate and harassment rose sharply for adults and teens ages 13-17. Among adults, 52% reported being harassed online in their lifetime, the highest number we have seen in four years, up from 40% in 2022. Both adults and teens also reported being harassed within the past 12 months, up from 23% in 2022 to 33% in 2023 for adults and 36% to 51% for teens. Overall, reports of each type of hate and harassment increased by nearly every measure and within almost every demographic group.

Axios discusses the report.

Michigan Legislature Bans Conversion Therapy-- 22nd State To Do So

The Michigan legislature yesterday gave final passage to HB 4616 (full text) and HB 4617 (full text), bills which together prohibit mental health professionals from engaging in conversion therapy with a minor. HB4617 contains an elaborate definition of "conversion therapy" which explicitly excludes, among other things, "counseling that provides acceptance, support, or understanding of an individual or facilitates an individual's coping, social support, or identity exploration and development ...  as long as the counseling does not seek to change an individual's sexual orientation or gender identity."  When signed by the Governor, Michigan will become the 22nd state (plus the District of Columbia) to ban conversion therapy for those under 18. M Live reports on the new legislation.

Wednesday, June 28, 2023

6th Circuit: Michigan Prisons Must Recognize Christian Identity As A Religion

In Fox v. Washington, (6th Cir., June 26, 2023), the U.S. 6th Circuit Court of Appeals held that the Michigan Department of Corrections had not adequately justified its refusal to recognize Christian Identity as a religion for purposes of the Michigan prison system. The court had previously remanded the case for the state to demonstrate that it met the requirement under RLUIPA that it has a compelling governmental interest in not recognizing Christian Identity, and that it has employed the least restrictive means in doing so. The state focused on the safety concerns growing out of the white supremacist ideology of the religious movement. The 6th Circuit concluded that this is insufficient, in part because the prison system had not considered alternatives short of non-recognition, saying in part:

Begin with the Department’s “policy directive” for “religious beliefs and practices of prisoners.” It plainly does not allow unfettered group worship simply because the Department recognizes a religion....

RLUIPA ... requires an individual inquiry even when group worship is the sought accommodation.... Indeed, each plaintiff testified that he was nonviolent and would prevent others from acting aggressively at group services. The Department offered silence in response—it did not, for example, present any evidence that plaintiffs or any other inmates who follow Christian Identity are violent. True, Bechler linked Christian Identity to racial violence outside the prison setting. But nothing in the record links plaintiffs to any prison violence, racially motivated or otherwise. In short, the Department presented evidence regarding Christian Identity as a whole, but not concerning plaintiffs. In failing to conduct an individualized inquiry, the Department’s decision-making process was deficient....

Although the record links Christian Identity to white nationalist groups, nothing in the record addresses how many Christian Identity adherents are members of those groups. The Department has the burden to show that refusing to recognize Christian Identity is the least restrictive means to advance facility security.... It cannot meet that burden by simply gesturing toward some Christian Identity adherents being members of white supremacist groups and rely on this court to fill in the gaps....

AP reports on the decision.

Islamic Marriage Contract Enforceable in Civil Court

In Alulddin v. Alfartousi, (AZ App., June 27, 2023), an Arizona state appeals court held that civil courts can enforce an Islamic marriage contract's dowry provision (mahr) as a valid premarital agreement without violating the 1st Amendment's free exercise clause. The court said in part:

By its plain terms, the Agreement required Husband to pay Wife a total dowry of $25,000 “when she demands it.” These clear, unambiguous contractual provisions are subject to interpretation under neutral principles of law.... Thus, the superior court did not need to assume the role of a religious court or consider ecclesiastical matters forbidden by the First Amendment to enforce the agreement as written.

... A premarital agreement is “an agreement between prospective spouses that is made in contemplation of marriage and that is effective on marriage.” A.R.S. § 25-201(1).... It “is enforceable without consideration.” ...

Husband contends that the parties did not enter into the Agreement in contemplation of marriage because under Islamic law the Agreement constituted their marriage. The record controverts this contention. The parties signed the Agreement five months before their legal marriage. Although Husband testified that it signified their cultural marriage, he also stated that they signed it on their “engagement.” Moreover, he testified that their actual marriage occurred after the execution of the Agreement....

Next, Husband asserts that he did not sign the Agreement voluntarily because it was a compulsory religious act....

Here, the superior court did not err in finding that Husband failed to meet his burden of proof. He did not present any evidence to suggest that his religion “mandated” or “compelled” him to sign the Agreement. In his prehearing statement, he described the Agreement as “customary”—not compulsory—in a Muslim marriage....

Tuesday, June 27, 2023

Certiorari Denied In Case Holding Charter Schools Are State Actors

Yesterday the U.S. Supreme Court denied review in Charter Day School, Inc. v. Peltier, (Docket No. 22-238, certiorari denied 6/26/2023). (Order List.) In the case, the U.S. 4th Circuit Court of Appeals sitting en banc in a 10-6 decision (full text of opinions) held that a publicly funded North Carolina charter school is a state actor and thus subject to the equal protection clause.  At issue was the school's promulgation of a dress code requiring female students to wear skirts.