Conscience Clause in Health Insurance Mandate Does Not Violate Church's Free Exercise

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, July 25, 2023), a Washington federal district court dismissed a free exercise challenge by a church to a Washington law requiring all health insurance plans that provide maternity coverage to also provide substantially equivalent abortion coverage. Under the law, employers with religious or moral objections to specific services do not have to purchase coverage for those services, but enrollees must still be able to access coverage for the services. The court said in part:

None of the State’s arguments seem to fully address the crux of Cedar Park’s facilitation complaint: that its employees would not have access to covered abortion services absent Cedar Park’s post-SB 6219 plan. This fact is undisputed and undoubtedly true. Because of SB 6219, Cedar Park’s employees gained coverage for abortion services under their employer-sponsored health insurance plan that they would not otherwise have. Even if the “facilitation” is somewhat minimal, SB 6219 requires Cedar Park to facilitate access to covered abortion services contrary to Cedar Park’s religious beliefs....

Because the Court concludes that SB 6219 is neutral and generally applicable, the law is valid if it is rationally related to a legitimate governmental purpose....

The Washington legislature identified multiple legitimate governmental purposes for enacting SB 6219, including promoting gender equity, promoting economic success of women, improving women’s health, and protecting privacy.

Hindu Profs May Move Ahead with Some Challenges To "Caste" In Anti-Discrimination Policy

In Kumar v. Koester, (CD CA, July 25, 2023), a California federal district court dismissed for lack of standing plaintiffs' free exercise and equal protection challenges to California State University's inclusion of the term "caste" in its Interim Non-discrimination Policy. However, the court concluded that plaintiffs-- South-Asian, Hindu CSU professors-- may move ahead with their Establishment Clause and vagueness claims. 

Plaintiffs object to the University's policy that treats "caste" as a social and religious hierarchy created by the Hindu religion. They contend that caste is no part of Hinduism and that its inclusion in the University policy promotes racial and religious stereotypes and subjects plaintiffs' Hindu religious beliefs to public ridicule. The court dismissed plaintiffs' equal protection challenges because "abstract stigmatic injuries" are not sufficient to create standing.  Insofar as plaintiffs argue that the Policy provides insufficient protection to non-Asian victims of caste discrimination, plaintiffs allege no injury to themselves. As to plaintiffs' free exercise challenges, the court said in part:

Plaintiffs emphatically denounce the caste system and reject the notion that it is part of their religion. Thus, the Policy does not threaten any of Plaintiffs' rights to practice their religion.

As to plaintiffs' Establishment Clause claims, the court said in part:

To evaluate the merits of an Establishment Clause claim, a court must reference historical practices and understandings.... A government practice that unevenly impacts religion may nevertheless be constitutional if it is supported by history and tradition.... Defendant contends that inclusion of the term "caste" is supported by a long history and tradition of disallowing racial discrimination in schools. While Defendant is correct that there is a long history of preventing racial discrimination in education, Defendant has not adequately demonstrated that there is a history or tradition of incorporating words with religious connotations to curb racial discrimination. Therefore, Defendant has failed to demonstrate that implicating Hinduism through the Policy's inclusion of the term "caste" is supported by history and tradition.

[Thanks to Glenn Katon for the lead.]

Vermont Pregnancy Counseling Centers Sue Over New Restrictions

Suit was filed yesterday in a Vermont federal district court attacking Vermont's recently-enacted SB 37 which, among other things, imposes new regulation on anti-abortion pregnancy counseling centers. The law prohibits advertising of services that is "untrue or clearly designed to mislead the public about the nature of the services provided." It also provides that licensed health care professionals who provide services at such centers are responsible for ensuring that services, information and counseling at the center complies with these requirements. The complaint (full text) in National Institute of Family and Life Advocates v. Clark, (D VT, filed 7/25/2023) contends that these provisions are unconstitutionally vague and also violate the free speech rights of clinics, alleging in part:

111. The Advertising Prohibition provides no guidance as to how it should be applied to advertisements including medical information on which there is no medical consensus.

112. The Advertising Prohibition is also unclear as to whether it requires a disclosure in all advertisements that the pregnancy center does not provide abortions or "emergency contraception."

113. Requiring such a disclosure would compel the centers' speech.

114. The Advertising Prohibition has chilled Plaintiffs' speech.

115. For example, Aspire's medical director created a video about abortion pill reversal that Aspire would like to post on its website....

168. Because Plaintiffs do not charge for their services, the Provider Restriction, 9 V.S.A. § 2493(b), regulates Plaintiffs' non-commercial speech.

169. The Provider Restriction is a viewpoint- and content-based regulation of pure speech because it directly regulates speech about health-care-related" information" and "counseling" by "limited-services pregnancy centers," even when no medical treatment or procedure is involved. 9 V.S.A. § 2493(b).

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

Guam Legislature Overrides Veto of Bill Authorizing Government-Funded Religious Charter Schools

On July 24, the Guam legislature by a vote of 13-0 overrode Governor Lourdes Leon Guerrero's July 12 veto of Bill No.62-37.  (Full text of veto message). The bill allows both private religious schools and private non-sectarian schools to petition to convert to government-funded Academy Charter Schools. The legislation authorizes up to 7 charter schools to operate at any one time. (Full text of bill and veto override vote). The legislature's introductory language in the bill reads in part:

I Liheslaturan Guåhan intends to remove any discrimination or distinction between private sectarian or non-sectarian applicants for converting existing schools or for new charter schools. I Liheslaturan Guåhan recognizes the enormous contribution and history of private sectarian education on Guam and intends for all applicants to be considered on their records and applications to convert to an Academy Charter School.

According to the Guam Daily Post:

Gov. Lou Leon Guerrero in a veto message this month said that Bill 62 violated the First Amendment and the doctrine of separation of church and state, as well as the Organic Act of Guam. She stated she couldn’t authorize the spending of taxpayer money on a religious school, which would then be regulated by the government.

But Attorney General Doug Moylan differed in a legal opinion issued to lawmakers. Several faith-based organizations receive money from the government of Guam already, he noted.

Court Upholds Procedure for Obtaining Immigrant Religious Worker Classification

In Society of the Divine Word v. U.S. Citizenship & Immigration Services, (ND IL, July 20, 2023), an Illinois federal district court rejected RFRA, free exercise, Establishment Clause and equal protection challenges brought by more than a dozen religious institutions to the way in which federal law treats foreign-born ministers and international religious workers who the institutions seek to employ.  Current federal law does not allow them to file their application for a "green card" until after their employer has obtained a special immigrant religious worker classification for them. This is different than the rules for employees of secular organizations who may file for a green card concurrently with their employer's filing. The court said in part:

Plaintiffs counter that § 245.2(a)(2)(i)(B) violates the RFRA because their decisions regarding “when and where religious workers may be put into religious service” are protected by the First Amendment. They argue that § 245.2(a)(2)(i)(B) places “extreme and sometimes insurmountable burdens” on their ability to staff their religious missions. These burdens include processing delays, resource expenditure to follow up on and seek expedited adjudication of petitions, and lapses in employment authorization....

The court agrees with plaintiffs that § 245.2(a)(2)(i)(B) is still capable of substantially burdening their religious exercise even if they can use other employment-based immigration categories to hire their foreign-born religious workers. That being said, the court disagrees with plaintiffs that they have demonstrated that these alleged burdens (time, planning, and cost) have a substantial impact on their ability to determine when and where to hire and fire the religious ministers of their choice. Instead, § 245.2(a)(2)(i)(B) requires employers to plan the timing of employment decisions based on immigration status, and potentially limits the pool of qualified applicants that plaintiffs can choose from if they fail to plan accordingly. Limiting the pool of available employees based on immigration status is not the same as interfering with a religious organization’s hiring decision by pressuring them to hire or fire a particular employee, as in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012)...

Plaintiffs’ next argument is that § 245.2(a)(2)(i)(B) violates the Equal Protection and Due Process Clauses because it discriminates against them on the basis of religion....

... [T]his court concludes that § 245.2(a)(2)(i)(B) is not based on religion; it is based on the demonstrated risk of fraud in the special immigrant religious worker program, which is not subject to other requirements that might avoid fraud in other employment-based categories. 

Recent Articles of Interest

From SSRN:

• Mark Edward Blankenship Jr., 'Apprenticeship' as IP Metaphor: A Modern & Innovative Natural Law Approach in Intellectual Property Law, (Northern Kentucky Law Review, Vol. 50, No. 1, 2023).
• Elizabeth Sepper & James David Nelson, Religion Law and Political Economy, (Iowa Law Review, Vol. 108, No. 5, 2023).
• Nathan B. Oman, Travel Bans: Mormons and Muslims, (William & Mary Law School Research Paper No. 09-472 (2023).
• Leonardo Madio & Francesco Principe, Who Supports Liberal Policies? A Tale of Two Referendums in Italy, (July 19, 2023).
• Mritunjay Kumar, Chanchal Kumar Singh & Aastha Naresh Kohli, Breaking Down the Code, (India Legal Magazine, 2023).
• Keith Wanyangu, Kenya's Conversation on the Right to Sexual Orientation Is Just Cultural, (July 9, 2023).
• Mahbobullah Hazim & Abdulaziz Nazari, The Negative Consequences of Gender Mixing and Its Rulings in Islamic Shariah, (Integrated Journal for Research in Arts and Humanities, 3(4), July 2023, 6–19).

From SSRN (Abortion rights):

• Joseph W. Singer, Conflict of Abortion Laws, (Northeastern University Law Review, Vol. 16, No. 2 (2024, Forthcoming).
• Paul J. Zwier, US State Abortion Law in an International Context: Distinguishing Religion and Politics, (July 14, 2023).
• Gemma Donofrio, Bruen, Dobbs, Rahimi, and Domestic Violence: Fewer Abortions, More Guns, and the Effects of Both on Survivors of Intimate Partner Violence, (July 17, 2023).

From SmartCILP:

• Stephen M. Feldman, The Roberts Court's Transformative Religious Freedom Cases: The Doctrine and the Politics of Grievance, [Abstract], 28 Cardozo Journal of Equal Rights & Social Justice 507-558 (2022).
• B. Jessie Hill, Due Process, Delegation, and Private Veto Power, 108 Iowa Law Review 1199-1246 (2023).

UN Human Rights Council Adopts Resolution Condemning Burning of Qur'an

The United Nations Press Centre reports that on July 14, the United Nations Human Rights Council

concluded its fifty-third regular session after adopting 30 resolutions and holding an urgent debate on the alarming rise in premeditated and public acts of religious hatred as manifested by recurrent desecration of the Holy Quran in some European and other countries.

The Council adopted Resolution A/HRC/53/L.23, Countering Religious Hatred Constituting Incitement to Discrimination, Hostility or Violence (full text), which reads in part:

Affirming that burning the Holy Qur’an or any other holy book is offensive, disrespectful and a clear act of provocation, constituting incitement to discrimination, hostility or violence and a violation of international human rights law, ...

Condemning any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence, whether it involves the use of print, audiovisual or electronic media or any other means...

1. Condemns and strongly rejects the recent public and premeditated acts of desecration of the Holy Qur’an, and underscores the need for holding the perpetrators of these acts of religious hatred to account in line with obligations of States arising from international human rights law....

ADF-UK issued a press release criticizing the Council's Resolution as an anti-blasphemy resolution that infringes free expression rights.

Missouri Supreme Court Orders Steps to Allow Reproductive Rights Initiative Petitions to Be Circulated

In State of Missouri ex rel. Dr. Anna Fitz-James v. Bailey, (MO Sup. Ct., July 20, 2023), the Missouri Supreme Court affirmed a trial court's issuance of a writ of mandamus requiring the state Attorney General to approve the State Auditor's fiscal note summaries to eleven Reproductive Rights initiative petitions. That approval is necessary so that the Secretary of State can certify the ballot language and proponents can begin to circulate the petitions for signatures. (Full text of petitions [scroll to No. 2024-77 through 2024-87]). AP reports on the case. State Attorney General Andrew Bailey-- a gubernatorial appointee in Missouri-- contended that the Auditor's conclusion that the proposed constitutional amendments would have no fiscal impact were inaccurate.  Bailey, an abortion opponent, contended that. if approved by voters, the state could lose $12.5 billion in Medicaid funds and $51 billion in future tax revenues because of fewer births. This earlier report by the Missouri Independent has additional background.

 In its opinion, the Missouri Supreme Court said in part:

The Attorney General’s narrow authority to approve the “legal content and form” of the fiscal note summaries cannot be used as a means of usurping the Auditor’s broader authority to assess the fiscal impact of the proposals and report that impact in a fiscal note and fiscal note summary....

The Attorney General, nevertheless, characterizes his claim as challenging the “legal content and form” of the fiscal notes and their summaries because he contends they use language that is argumentative or likely to prejudice readers in favor of the proposed measure.... [H]e claims the content of the notes is likely to prejudice voters in favor of the proposals by underestimating the fiscal impact. And, because he believes the fiscal notes understate the costs to state and local governments, the Attorney General claims the summaries inevitably do so as well. The Attorney General has no authority under section 116.175 to refuse to approve fiscal note summaries on such grounds....

For more than 40 years, this Court has noted “that procedures designed to effectuate [the rights of initiative and referendum] should be liberally construed to avail voters with every opportunity to exercise these rights” and that “[t]he ability of voters to get before their fellow voters issues they deem significant should not be thwarted in preference for technical formalities.”... If the Attorney General had complied with his duty ..., the Secretary would have certified the official ballot titles for Fitz-James’s initiative petitions nearly 100 days ago.

Court Rejects Muslim Americans' Challenge to Their Treatment at U.S. Borders

In Kariye v. Mayorkas, (CD CA, July 19, 2023), a California federal district court dismissed claims by three Muslim plaintiffs that their rights have been violated by ongoing religious questioning of Muslim Americans at ports of entry. The court rejected plaintiffs' Establishment Clause challenge, saying in part:

In light of the case law holding that the government has plenary authority at the border and that maintaining border security is a compelling government interest, the court finds that "reference to historical practices and understandings" weighs against finding an Establishment Clause violation based on religious questioning at the border.... Plaintiffs' allegations to the contrary—that American history and tradition protect religious belief—do not sufficiently address historical practices and understandings at the border.

Rejecting plaintiffs' Free Exercise claim, the court said in part:

[T]he ongoing harms alleged by Plaintiffs here—their modifications to religious practices during international travel— ... can ... be categorized as subjective chilling effects insufficient to constitute a substantial burden under the Free Exercise Clause....

... Plaintiffs have not plausibly alleged they were deprived of a government benefit or coerced to act contrary to their religious beliefs...

... Plaintiffs' allegations support the conclusion that the questioning alleged in this case would be a narrowly tailored means of achieving the compelling government interest of maintaining border security.

The court also rejected plaintiffs' freedom of association, retaliation, equal protection and RFRA claims.

6th Circuit Hears Oral Arguments in RLUIPA Land Use Dispute

The U.S. 6th Circuit Court of Appeals yesterday (July 19) heard oral arguments (audio of full oral arguments) in a RLUIPA land use case, Catholic Healthcare International, Inc. v Genoa Charter Township, Michigan. The dispute is summarized by a Michigan federal district court in one of its opinions:

CHI acquired title to a parcel of undeveloped property... and requested Township approval to construct a grotto/prayer area with associated parking and drive access on the Property.... In response, the Township informed a CHI representative that the proposed construction would be considered a special land use requiring special land use and site plan approval.... Despite this instruction from the Township, CHI erected the desired religiously symbolic structures: a Station of the Cross, similar in size and appearance to a birdhouse, and a shrine consisting of an image within a brick wall, referred to as a “grotto,” on the Property without approval or permits from the Township....

The complex history of the case is outlined on the website of the American Freedom Law Center. Yesterday's oral arguments, which focused in part on the issue of ripeness, are discussed by Courthouse News Service.

Biden Appoints New Member of USCIRF

Last week, President Biden announced his appointment of Susie Gelman as a Commissioner on the U.S Commission on International Religious Freedom. From 2016-2023, Gelman served as Board Chair of Israel Policy Forum. She previously served, among other positions, as President of the Jewish Federation of Greater Washington. JNS reports on the appointment.

Louisiana Legislature Overrides Veto of Gender Transition Ban for Minors

Yesterday the Louisiana legislature overrode Governor John Bel Edwards' veto of HB648, the Stop Harming Our Kids Act (full text). The law prohibits medical professionals from providing puberty blockers, hormonal treatments or surgery to treat gender dysphoria in minors. AP reports on the legislative override.

Coach Sues Over Dismissal for His Remarks About Transgender Athletes

Suit was filed this week in a Vermont federal district court by a high school snowboarding coach who was dismissed because of a comment he made regarding a transgender woman on a team that would be competing against his female high school team. The school's notice of termination (Exhibit 8 in Complaint) alleges that the coach used "disparaging names" that created "an objectively offensive environment and constituted harassment based on gender identity...." In the Complaint (full text) in Bloch v. Bouchey, (DD VT, filed 7/17/2023), the coach however alleged in part:

3. Coach Bloch is also a practicing Roman Catholic who believes that God creates males and females with immutable sex. His understanding of science complements his religious beliefs. Coach Bloch believes, based on scientific evidence, that there are only two sexes, which are male and female, and that sex is determined by a person's chromosomes. 

4. But Coach Bloch's respectful expression of his beliefs contradicted the prevailing orthodoxy of the Defendant Vermont state officials, school district, and superintendent. So, Defendant Superintendent Sherry Sousa terminated him and barred him from future employment in the school district. 

5. On February 8, 2023, Coach Bloch and his team were waiting in the lodge for a competition to start. That day, his team was to compete against a team that had a male snowboarder who identifies as a female and competes against females. During downtime in the lodge, Coach Bloch overheard a conversation between two of his athletes about that male competing against females. 

6. Coach Bloch joined the conversation to offer that people express themselves differently and that there can be masculine women and feminine men. 

7. But he affirmed that as a matter of biology, males and females have different DNA, which causes males to develop differently from females and have different physical characteristics. Coach Bloch discussed that biological differences generally give males competitive advantages in athletic events. 

8. The conversation was respectful among all parties and lasted no more than three minutes. It took place entirely outside the presence of the transgender-identifying snowboarder. 

9. Coach Bloch's team and the team with the male who identifies as a female competed without incident. After the competition, the two teams and their coaches, including Coach Bloch, shared a bus home.

The complaint goes on to allege that the school was acting pursuant to Vermont's Harassment, Hazing and Bullying Law. It contends that the HHB Law and policies under it violated the coach's free speech rights, including the 1st Amendment's ban on viewpoint discrimination, prior restraints and overbreadth. It also alleges due process violations.  ADF issued a press release announcing the filing of the lawsuit.

Denial of Teacher's Religious Exemption from Covid Vaccine Mandate Is Upheld

In In re Matyas v. Board of Education of the City School District of the City of New York, (NY County Sup. Ct., July 11, 2023), a New York trial court rejected a teacher's challenge to the Department of Education's denial of an exemption from its Covid vaccine mandate. The court said in part:

[P]etitioner submitted, to the DOE, a request for a reasonable accommodation exempting her from the COVID-19 vaccination requirement on the ground that her childhood Roman Catholic faith, and what appears to have been her recent conversion to an unspecified sect of Evangelical Protestant Christianity, made it impossible for her to take any type of vaccination. She cited several passages from both the Old and New Testaments of the Bible... most which discuss one’s faith and trust in the almighty, and the last of which proscribes the mixing of human blood with the mixing of the blood of sacrificed animals. . As the petitioner phrased it, although she teaches biology, 

“[t]here is only one GOD. To trust that a vaccine will protect us more than God would, is to have a false idol. I cannot betray my faith and GOD and my conscious. I will not follow any false idols in search of salvation I know that my salvation is secure in my faith in GOD.”...

With respect to ... her First Amendment right to the free exercise of religion and discrimination in employment on the basis of religion, the petitioner has not established either that the City’s vaccine mandate was premised upon religion, as she has not demonstrated that her conclusions about the alleged proscription of desecrating the human body with vaccinations is an established Catholic or Evangelical doctrine, or shown that they were more than her personal interpretation of her obligations as a practicing Catholic or Evangelical....

Iowa Trial Court Temporarily Enjoins State's New Heartbeat Abortion Ban

In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Dist. Ct., July 17, 2023), an Iowa state trial court issued a temporary injunction barring enforcement of Iowa's new heartbeat abortion ban. The court held that a decision of the Iowa Supreme Court in 2022 left the federal undue burden test as the controlling test in Iowa abortion cases. The trial court said in part:

When the undue burden standard is applied, it is readily apparent that the Petitioners are likely to succeed on their claim that H.F.732 violates the Due Process clause, article I, section 9 of the Iowa Constitution.

The court's decision was complicated by the fact that in 2018, Iowa passed a similar heartbeat law which was enjoined by a trial court. That injunction remained in place when last month the Iowa Supreme Court deadlocked 3-3 in an appeal of that decision. In yesterday's decision by the trial court, the temporary injunction had one exception. The court said:

The court believes it must follow current Iowa Supreme Court precedent and preserve the status quo ante while this litigation and adversarial presentation which our Supreme Court has invited moves forward. 

However, as the Governor has now signed H.F. 732 into law, the court should except from that status quo, section 2, paragraph 5 of H.F. 732, directing the Iowa Board of Medicine to adopt rules pursuant to Chapter 17A. Should the injunction entered today ultimately be dissolved, it would only benefit all involved, patients and providers alike, to have rules in place to administer the law.

Iowa ACLU issued a press release announcing the decision.

Parochial School Students Sue For Equal Access to District Extracurricular Activities

Suit was filed last week in a Pennsylvania federal district court on behalf of two parochial school students and their parents challenging a school district policy that allowed home school and charter school students to participate in the district's extracurricular and co-curricular activities but does not allow private and parochial school students the same right. The complaint (full text) in Religious Rights Foundation of Pa v. State College Area School District, (MD PA, filed 7/10/2023), contends that exclusion of religious parochial schools violates plaintiff's free exercise and equal protection rights. Penn Live reports on the lawsuit..

Biden and VP Laud Rev. Jesse Jackson on His Retirement

 At the Rainbow PUSH Coalition's 57th Annual Convention in Chicago yesterday, the Reverend Jesse Jackson officially announced his retirement as the organization's president and Reverend Dr. Frederick Douglass Haynes III of Dallas was named to succeed Jackson. (NBC DFW News). Vice President Kamala Harris spoke at the Convention, (Full text of Remarks.) Also President Joe Biden issued a Statement (full text) thanking Rev. Jackson for his life's work, saying in part:

The promise of America is that we are all created equal in the image of God and deserve to be treated equally throughout our lives. While we’ve never fully lived up to that promise, we’ve never fully walked away from it because of extraordinary leaders like Reverend Jesse Jackson, Sr.

Recent Articles and Reports of Interest

From SSRN:

• Kathryn Chan, Lakeside Colony of Hutterian v Hofer: Jurisdiction, Justiciability and Religious Law, (in Renae Barker, Paul T Babie and Neil Foster eds., Law and Religion in the Commonwealth: The Evolution of Case Law (Hart Bloomsbury, 2022) 211-226).
• Ahmed Izzidien, Using the Interest Theory of Rights and Hohfeldian Taxonomy to Address a Gap in Machine Learning Methods for Legal Document Analysis, (University of Cambridge Faculty of Law Research Paper Forthcoming, Humanit Soc Sci Commun 10, 251 (2023)).
• Justin Burnworth, The Ministerial Exception Paradox, (Quinnipiac Law Review [Forthcoming]).
• Priyansha Agarwal & Kanha Sawlani, Euthanasia and Article 21: A Review on its Constitutional Validity with Special Reference to Religious Practices, (August 30, 2022).
• Sital Kalantry, Foreign Law in Dobbs: The Need for A Principled Framework, (14 ConLawNOW 37 (2023)).
• Catherine T. Struve, Allowing the Courts to Step in Where Needed: Applying the PLRA’s 90-Day Limit on Preliminary Relief , (University of St. Thomas Law Journal, Vol. 19, p. 407, 2023).
• Reva B. Siegel, How Dobbs Weaponizes Brown: The Roots of Dobbs’s History-and-Tradition Method in the Defense of Segregation, (Yale Law Journal, Forthcoming).
• Afsha Moin, LGBTQIA and Feminism: All Individuals Are Entitled to Equal Rights (April 9, 2023).

From SmartCILP:

• Yael Efron & Mohammed S. Wattad, Speaking Arabic in Israel: "He Whose Hand Is in the Water Is Not like Whose Hand Is in the Fire.", 24 Cardozo Journal of Conflict Resolution 1-28 (2022).
• Ariel Dulitzky, Rereading Cain and Abel: New Approaches to Enforced Disappearances, 44 Human Rights Quarterly 659-703 (2022).

Reports:

• Center for Religion, Culture and Democracy, Religious Liberty in the States. 2023.

Catholic School's Non-Renewal of Counsellor Who Entered Same-Sex Marriage Upheld

In Fitzgerald v. Roncalli High School, Inc., (7th Cir., July 13, 2023), the U.S. 7th Circuit Court of Appeals held that the ministerial exception doctrine requires dismissal of a suit which was brought by a Catholic high school guidance counselor whose contract was not renewed because her same-sex marriage was inconsistent with the Catholic school's religious mission. The court found this to be an easy case because last year in a different decision the 7th Circuit held that a suit by plaintiff's Co-Director of Guidance was barred by the ministerial exception doctrine. (See prior posting.) The court said in part:

Our precedent makes clear that Fitzgerald was a minister at Roncalli and that the ministerial exception bars this suit. But cases like today’s—involving two plaintiffs with the same title, at the same school, performing the same duties, and bringing the same claims in our court—are rare. A fact-specific inquiry remains necessary in cases where the ministerial exception is asserted as a defense to balance the enforcement of our laws against the protections of our Constitution.

Judge Brennan filed a concurring opinion pointing out that the case could also have been resolved by relying on the statutory religious employer exemption in Title VII which would have avoided the constitutional question. Becket issued a press release announcing the decision.

Court Says HHS Used "Smurfing" To Avoid Review of Guidance To Pharmacies

In State of Texas v. U.S. Department of Health & Human Services, (WD TX, July 12, 2023), a Texas federal district court refused to dismiss a challenge by the state of Texas and a pharmacy company to the Department of Health & Human Service's July 14, 2022, Guidance to Nation's Retail Pharmacies: Obligations under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services.  Texas claims that the Guidance is an attempt to pre-empt Texas' abortion bans. Plaintiffs contend that the Guidance exceeds HHS's statutory authority and violates the Administrative Procedure Act. HHS alleges the plaintiffs lack standing. According to the court:

Plaintiffs’ standing in this case turns on the answer to a single question: does the Pharmacy Guidance require pharmacies to dispense drugs for abortion purposes? Defendants argue now that the Pharmacy Guidance only “addresses situations in which a pharmacy would fail to fill a prescription for non-abortion purposes.” What’s more, Defendants argue that “Texas cannot point to any language in the guidance that purports to require pharmacies to dispense drugs for abortion purposes.” Thus, in Defendants’ view, because the Pharmacy Guidance is not about abortion, it “does not conflict with, or purport to preempt, Texas laws that restrict abortion.” But that argument perfectly evidences agency smurfing—an executive branch breaking up a policy goal into silos, hoping to sever the threads that link the compartmentalized pieces to the executive’s goal....

This administration has, before and since Dobbs, openly stated its intention to operate by fiat to find non-legislative workarounds to Supreme Court dictates. This Court will not play along with such a breach of constitutional constraints.

Earlier in its opinion, the court set out at greater length its concern about "smurfing":

A recent trend among federal agencies appears to be borrowing a technique common among money launderers to avoid judicial review. The technique known as “smurfing” in the financial arena occurs when the launderer divides a large transaction—which might otherwise trigger a bank’s reporting requirements—into various smaller transactions to avoid detection....

Agency smurfing, similar to financial smurfing, occurs when the executive branch smurfs one policy goal into multiple, supposedly “unreviewable” and “unchallengeable” pieces. Consider an executive branch, who, immediately following a Supreme Court decision, seeks to achieve a policy goal contrary to the Court’s holding. The executive branch knows, however, that courts will likely view that policy goal as incompatible with the Supreme Court’s reasoning. In its efforts to avoid scrutiny, and eventual discovery of their true purpose, the executive branch breaks up the policy goal into separate, seemingly unrelated and innocent pieces—an executive order here, a press release and guidance there.

Mayo Pharmacy, a co-plaintiff, also alleged violation of its free exercise rights under RFRA. The court held that the case was brought in the wrong venue to assert that claim, and it transferred that claim to the District of North Dakota where venue lies. ADF issued a press release announcing the decision.