Recent Articles of Interest

 From SSRN:

• Michael Stokes Paulsen, Freedom for Religion, (Yale Law Journal Forum (2023)).
• Stephanie H. Barclay, Replacing Smith, (Yale Law Journal, (2023)).
• Trudo Lemmens, When Death Becomes Therapy: Canada’s Troubling Normalization of Health Care Provider Ending of Life, (American Journal of Bioethics (2023) 23(11): 79-84).
• Indri Kurnia, et. al., Understanding the Governance of Family Endowments in the Context of Dual Accountability, (International Journal of Scientific and Management Research, Volume 06 Issue 11, pp. 88-100 (2023)).
• Christopher Ryan, Confusing Cy Près, (Georgia Law Review, Vol. 58, 17-96 (2023)).
• Nicolas Duquette, Wealth Shocks Don't Affect Charitable Giving Much, (December 18, 2023).

From SmartCILP:

• Symposium: The Religiously Affiliated Law Schools Conference, Touro Law Review, Vol. 38, No. 4 (2023).
• Shamshad Pasarlay & Clark Lombardi, The Constitutional Imagination of the Mujahidin: A History and Translation of Two Constitutions Proposed by Afghan Islamist Militias in the 1990s, [Abstract], 32 Washington International Law Journal 283-305 (2023).

School Board Not Liable for Teacher's Proselytization of Muslim Student

In Chaudhry v. Community Unit School District 300 Board of Education, (ND IL, Dec. 29, 2023), an Illinois federal district court dismissed Establishment Clause, Due Process and Equal Protection claims by Muslim parents against an Illinois school board that employed teacher Pierre Thorsen who convinced their daughter to convert to Christianity.  The court said in part:

[T]he complaint continues to state an implausible theory of Monell liability because it does not plead enough factual matter to raise the inference that any assertedly unconstitutional practice had become so widespread that the Board was bound to have noticed it. It likewise continues to fail to plausibly allege that anyone other than Thorsen was the moving force behind any of the Parents’ asserted injuries.... At best, the Parents have alleged facts consistent only with the “isolated wrongdoing of one . . . rogue employee[].”... Because Monell does not allow for respondeat superior liability, these claims are not plausibly pleaded, and they therefore fail.

Ohio Governor Vetoes Ban on Gender Affirming Treatments for Minors and Women's Sports Provisions: Proposes Administrative Alternatives

 Ohio Governor Mike DeWine today vetoed HB 68 which prohibited physicians from performing gender reassignment surgery or prescribing cross-sex hormones or puberty blockers to minors, and prohibited transgender women from participating on women's athletic teams in schools that participate in interscholastic athletics and in public and private colleges. (Full text of Governor's Veto Message, his prepared Statement at a News Conference, and a video of his lengthy News Conference on the veto.) Focusing only on the ban on treatment of minors, the Governor said in part:

Were I to sign Substitute House Bill 68 or were Substitute House Bill 68 to become law, Ohio would be saying that the State, that the government, knows what is best medically for a child rather than the two people who love that child the most, the parents...

I have listened to the concerns the Legislature ... and agree that action is necessary regarding a number of issues raised.

I believe we can address a number of goals in Substitute House Bill 68 by administrative rules that will have a better chance of surviving judicial review and being adopted....

I adamantly agree with the General Assembly that no surgery of this kind should ever be performed on those under the age of 18. I am directing our agencies to draft rules to ban this practice in Ohio.

I share with the legislature their concerns that there is no comprehensive data regarding persons who receive this care, nor independent analysis of any such data. I am today directing our agencies to immediately draft rules to require reporting to the relevant agencies and to report this data to the General Assembly and the public every six months. We will do this not only when patients are minors, but also when the patients are adults.

I also share with the legislature’s concerns about clinics that may pop up and try to sell patients inadequate or even ideological treatments. This is a concern shared by people I spoke with who had both positive experiences and negative experiences with their own treatments....

Therefore, I am directing our agencies to draft rules that establish restrictions that prevent pop-up clinics or fly-by-night operations and provide important protections for Ohio children and their families and for adults.

Israel's Top Court OK's Adoption by Same-Sex Couples

 As reported by Times of Israel, a 3-judge panel of Israel's Supreme Court sitting as the High Court of Justice yesterday ruled that under Israel's 1981 adoption law, same-sex couples are eligible to adopt children. The court said in part:

Though the language of clause 3 [of the child adoption law, 1981] is more consistent, on its face, with the interpretation according to which the phrase of ‘a man and his wife together’ refers to heterosexual couples, an interpretation according to which this section also includes same-sex couples does not go beyond the range of possible linguistic interpretations.

This is because examining the phrase in its full linguistic context shows that the language of the section creates a distinction between two general categories: those who belong to a family framework that includes two parents, versus those who seek to adopt into a single-parent family framework. That is, the focus of the section is that it is an adoption by a stable marital framework to which the child will be given, unlike an single [parent framework].

According to Times of Israel, reporting on Acting Supreme Court President Uzi Vogelman's opinion:

He added that historical record showed that when the law was legislated the question of whether same-sex couples were fit to adopt was not considered. Vogelman wrote that the language of the law was devised by the Knesset to determine that it was for the benefit of the child up for adoption to be adopted into a two-parent family, and it was not aimed at making a determination regarding same-sex couples.

Court Finds Idaho's Ban on Gender Affirming Care for Minors Unconstitutional

In Poe v. Labrador, (D ID, Dec. 26, 2023), an Idaho federal district court issued a preliminary injunction barring enforcement of Idaho's recently enacted Vulnerable Child Protection Act which prohibits medical providers from surgically or chemically treating gender dysphoria in minors. The court held that because the statute discriminates on the basis of sex and transgender status, it is subject to heightened scrutiny under the equal protection clause, and found that the statute likely fails that test, saying in part:

Generally, the State Defendants say the legislature’s purpose in passing HB 71 was to protect vulnerable children from the dangers of unproven medical and surgical treatments. At a general level, safeguarding the physical wellbeing of children is of course important.... But in this case, the Court finds that the asserted objective is pretextual, given that HB 71 allows the same treatments for cisgender minors that are deemed unsafe and thus banned for transgender minors. That is, the medications and procedures that are used in gender-affirming medical care (such as puberty blockers, hormones, and surgeries) are used to treat cisgender adolescents for other purposes. But rather than targeting the treatments themselves, HB 71 allows children to have these treatments—but only so long as they are used for any reason other than as gender-affirming medical care....

The court also found the likelihood of success on plaintiffs' due process claims, saying in part:

[T]his Court easily concludes that the parent plaintiffs enjoy a fundamental right to seek a specific form of medical treatment for their children, which would include the gender-affirming medical care banned by HB 71.

The court however did dismiss plaintiffs' unusual claim against the publisher of Idaho's annotated statutes. Plaintiffs had argued that by failing to include annotations to federal cases that would indicate that Idaho's statute is unconstitutional, the publishers violated plaintiffs' due process rights.

Los Angeles Blade reports on the decision.

EEOC Announces Settlements In 2 Religious Discrimination Lawsuits

In the last several days, the EEOC has announced settlements in two unrelated Title VII religious discrimination suits filed by the agency.  Last week the EEOC announced that Children's Healthcare of Atlanta will pay $45,000 in damages to a former maintenance employee who was denied a religious exemption from the healthcare system's flu vaccine requirement. The employee, who worked primarily outside and had limited contact with the public or other staff, had been granted an exemption in 2017 and 2018, but was denied one and fired in 2019. Under the consent decree settling the suit, Children's Healthcare will also modify its religious exemption policy to presume eligibility for employees who work away from patients and other staff.

Yesterday the EEOC announced that Triple Canopy, Inc., a company that provides protective services to federal agencies, will pay $110,759 in damages to an employee who was denied a religious accommodation of his Christian belief that men must wear beards. The company denied the accommodation because the employee was unable to provide additional substantiation of his beliefs or a supporting statement from a documented religious leader. The company will also institute a new religious accommodation policy.

Indian Court Bars Exclusion of Scheduled Caste from Temple Festival

Last week in the Indian state of Tamil Nadu, the Madras High Court issued an order to prevent members of a Scheduled Caste from being excluded from a Temple Festival. In Pandiarajan v. District Collector, (Madras High Ct., Dec. 19, 2023), the court said in part:

... [P]etitioner submits that the people from Maravar community in their Village are not permitting the Scheduled caste people to participate in the temple festival and they are preventing them from taking mulaippari and not collecting tax from them for the temple festival.... [A] peace committee meeting ... between both the groups ... [decided] that the village festival has to be performed only as per the advice of the HR & CE [Hindu Religious and Charitable Endowments] Department that no community people is entitled to conduct the festival by collecting tax separately that the parties are restrained from spreading any rumors in the social media.... [P]etitioner submits that even after this resolution... the caste hindus are not permitting the scheduled caste people to participate inthe Margazhi festival of the above temple.... 

Even after 75 years of independence, if this state of affairs prevails on account of community in the village, it needs to be addressed and prevented. No person nor any group can restrain a person from performing his religious duties and it is the right guaranteed under the Constitution.

... The temple worshipped by the public is a public temple and the HR & CE Department is having every right to interfere with the affairs of the temple.  It was, in fact agreed between the parties in the peace committee meeting that the festival has to be conducted by the HR & CE Department.

LiveLaw 10 reports on the decision.

Top 10 Church-State and Religious Liberty Developments of 2023

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention. With each pick, I link to one of numerous postings on the topic. The selection of top stories obviously involves a good deal of subjective judgment. Here is a somewhat different list of top stories and newsmakers from the Religion News Association, the professional association of religion journalists. I welcome e-mail comment at religionclause@gmail.com on my choices. Here are my Top Ten picks:

1. Antisemitism spikes in U.S. as President releases National Strategy to Combat Antisemitism.

2. Supreme Court in 303 Creative v. Elenis says free speech protection allows website designer to refuse to create sites for same-sex weddings in violation of her religious beliefs.

3. State legislatures restrict gender dysphoria treatment for minors and transgender women's participation in competitive sports, while teachers sue over school policies requiring them to use students' preferred pronouns or conceal students' social transitions from parents.

4. Court challenges to state abortion bans continue. Plaintiffs claim bans violate state constitutions or violate their religious beliefs regarding abortion.

5. Supreme Court grants review of FDA rules that permit mail distribution of abortion pill.

6. Suits over past denials of religious exemptions from COVID vaccine mandates continue to play out in the courts.

7. Federal agencies say Title VI prohibits certain forms of antisemitic, Islamophobic, and related forms of discrimination in federally funded programs and activities, even though Title VI does not specifically ban religious discrimination.

8. California's targeting of caste discrimination challenged by Hindu Americans.

9. Oklahoma approves state-funded online Catholic charter school. State AG sues.

10. 9th Circuit allows fraud claim against LDS Church over representations about use of tithed funds to proceed.  Plaintiff is prominent former member who had tithed over $2.6 million.

Recent Articles of Interest

From SSRN:

• David Simson, Methodological Gerrymandering, (Cleveland State Law Review, Vol. 72, No. 1, 2023).
• Tolga Bozkurt, The Mihrabs of the Early Ottoman Imperial Mosques, (December 12, 2023).
• Sahar F. Aziz, Presumptively Antisemitic: Islamophobic Tropes in the Palestine Israel Discourse, ((November 12, 2023). Rutgers Center for Security, Race and Rights).
• C.G. Bateman, Bishops on the Bench: Why Constantine Legislated Christian Bishops into the Role of Judges, (Approved PhD Thesis. Electronic Theses and Dissertations (ETDs) 2008+. University of British Columbia, 2022).
• David H. Schraub, Renewing Study into the Oldest Hatred: Introduction to the Law vs. Antisemitism Symposium, (Lewis & Clark Law Review, Vol. 27, 2024).
• Barak Medina, State and Religion: The Israeli Model, (December 20, 2023).
• Thomas Charles Berg, The Irony of American Religious-Freedom Disputes, (Wayne Law Review, Forthcoming).
• Andrew T. Hayashi, Christianity and the Liberal(ish) Income Tax, (Notre Dame Journal of Law, Ethics and Public Policy, Forthcoming).
• Swethaa Ballakrishnen, Rethinking Inclusion: Ideal Minorities, Inclusion Cultures, and Identity Capitals in the Legal Profession, (Law & Social Inquiry, Vol. 48, No. 4, 2023).

From SmartCILP:

• Erwin Chemerinsky, Keynote Address: Justice Breyer and the First Amendment, 21 First Amendment Law Review 291-302 (2023).
• William T. Sharon, Religious and Secular Comparators, 30 George Mason Law Review 763-830 (2023).
• Zeina Jallad, Identity Annexation: Israel's Non-Territorial and Psychic Annexation of West Bank Samaritans in the Occupied Palestinian Territories, 26 University of Pennsylvania Journal of Law & Social Change 73-120 (2023).

Minnesota Court Hears Oral Arguments on Pharmacist's Refusal To Dispense Morning-After Pill

The Minnesota Court of Appeals yesterday heard oral arguments (audio of full oral arguments) in Anderson v. Aitkin Pharmacy Services, LLC, (Dec. 21, 2023). At issue is whether a pharmacist violated the sex discrimination provisions of the Minnesota Human Rights Act when, because of his religious belief, he refused to dispense the morning-after emergency contraception drug ella and instead referred her to another pharmacist who could fill her prescription the next day. ADF issued a press release regarding the case.

Negligence Claims Against Religious Boarding School Barred by Establishment Clause

In Drew v. Householder, (WD MO, Dec. 19, 2023), plaintiff sued Circle of Hope Boarding School, a fundamentalist Baptist school for girls, and its schoolmasters alleging that during the five years she was there she was subjected to sexual, physical and emotional abuse, and received inadequate and unaccredited formal instruction. She also alleged that the schoolmasters took $25,000 plus social security money from her. While allowing plaintiff to move ahead with several claims, the court dismissed, among others, her negligence claims, saying in part:

The Missouri Supreme Court has considered the extent to which judicial decision making may involve analysis of ecclesiastical matters without running afoul of the First Amendment’s establishment and free exercise clauses....

[A]llegations based in Missouri common law of negligence against religious institutions run afoul of the First Amendment, except in limited instances where the negligence allegation does not require interpretation of religious doctrine, policy, or interpretation.... It is plain neither of Plaintiff’s remaining negligence claims—Count Seven’s general negligence and Count Eight’s negligent supervision of students—falls into this narrow exception.... [N]egligent supervision claims against a religious institution violate the First Amendment because they require a court to evaluate “what the church ‘should know.’”... Likewise, general negligence claims against religious institutions violate the First Amendment, as it forces the court to consider how a reasonably prudent religious institution would act, thereby “excessively entangle[ing] itself in religious doctrine, policy, and administration.”...

... [T]his Court likewise finds that dismissal of Plaintiff’s negligence claims in Counts Six, Seven, Eight, and Eleven is appropriate also under the provisions of the Missouri Constitution declaring separation of church and state....

11th Circuit: Appeal of DEA's Denial of Religious Exemption to Controlled Substances Act Must Be in Circuit Court

In Soul Quest Chruch of Mother Earth, Inc. v. Attorney General, (11th Cir., Dec. 18, 2023), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, held that an appeal of the DEA's denial of a religious exemption to a church so it could legally use ayahuasca (a sacramental tea) needs to be made to a Circuit Court of Appeals, not to a federal district court. The issue turned on whether the DEA's denial was made "under" the statutory provisions of the Controlled Substances Act, or whether it was made "under" the Religious Freedom Restoration Act.  21 USC §877 requires appeals of final decisions made under the Control and Enforcement subchapter of the CSA to go to federal circuit courts.  Judge Newsom dissenting argued that the decision was made "under" the Religious Freedom Restoration Act, and so was appealable to a federal district court.

Pope OK's Non-Marital Blessings for Same-Sex Couples

In a Declaration titled "Fiducia Supplicans: On the Pastoral Meaning of Blessings" (full text) issued by the Vatican's Dicastery for the Doctrine of the Faith and approved by Pope Francis, the Pope has given priests permission to give a blessing to same-sex or other unmarried couples. The Declaration says in part:

31. Within the horizon outlined here appears the possibility of blessings for couples in irregular situations and for couples of the same sex, the form of which should not be fixed ritually by ecclesial authorities to avoid producing confusion with the blessing proper to the Sacrament of Marriage. In such cases, a blessing may be imparted that ... descends from God upon those who—recognizing themselves to be destitute and in need of his help—do not claim a legitimation of their own status, but who beg that all that is true, good, and humanly valid in their lives and their relationships be enriched, healed, and elevated by the presence of the Holy Spirit. These forms of blessing express a supplication that God may grant those aids that come from the impulses of his Spirit ... so that human relationships may mature and grow in fidelity to the Gospel, that they may be freed from their imperfections and frailties, and that they may express themselves in the ever-increasing dimension of the divine love.

32. Indeed, the grace of God works in the lives of those who do not claim to be righteous but who acknowledge themselves humbly as sinners, like everyone else. This grace can orient everything according to the mysterious and unpredictable designs of God. Therefore ... the Church welcomes all who approach God with humble hearts, accompanying them with those spiritual aids that enable everyone to understand and realize God’s will fully in their existence.

Catholic News Service reported on the document, and summarized it as follows:

The Vatican offered a narrow set of conditions under which a priest or deacon could give a blessing to a same-sex or other unmarried couple, making it clear the church does not consider their unions a marriage but also recognizing how anyone can ask for a blessing when they are seeking God's assistance, mercy and grace.

Parents Sue School for Using Teen's Preferred Masculine Name and Pronouns

Suit was filed yesterday in a Michigan federal district court by parents of a 13-year-old biologically female child whose school concealed from the parents that the school was referring to the child by masculine name and male pronouns. The complaint (full text) in Mead v. Rockford Public School District, (WD MI, filed 12/18/2023), alleges in part:

7. These actions ... violated the Meads’ long-settled constitutional rights. The First Amendment protects their right to exercise their religion by directing G.M.’s education and upbringing, including on fundamental questions of existence like how G.M. identifies herself. And the Fourteenth Amendment guarantees their fundamental right to make decisions about her upbringing, education, and healthcare. 

8. By intentionally concealing from the Meads important information about their daughter’s education and health—on a subject as morally fraught as gender confusion—the District denied them these constitutional rights. Absent extraordinary circumstances, a school district’s concealment from parents of such information violates the Constitution.

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

Church Buses Used in Released-Time Programs Not Subject to School Bus Regulations

In CBM Ministries of South Central Pennsylvania, Inc. v. Commonwealth of Pennsylvania, (PA Commonwlth.. Ct., Dec. 18, 2023), the Pennsylvania Commonwealth Court in a 5-2 decision held that privately owned vehicles used by a Bible ministry to transport children from public schools to off-site locations for religious instruction during the school day in released-time programs are not subject to state standards for school buses. CBM operates 87 released-time programs in 8 Pennsylvania counties. It contended that requiring it to comply with the heightened standards for school buses would burden its religious exercise in violation of the Pennsylvania Religious Freedom Protection Act (RFPA). The majority concluded:

While CBM does transport children to and from public schools for the released time program, DOT’s regulations, by their plain language, do not apply to vehicles that are neither owned by nor contracted with a school. In other words, the text of the enabling statute expressly limits the reach of DOT’s regulatory power in this area.

President Judge Jubelirer, joined by Judge Wojcik dissented, saying in part:

I fear the Majority’s overly narrow reading of the enabling statute thwarts the legislature’s intent, pursuant to its police power, to empower PennDOT to keep children safe when they are being transported to and from public school during the school day.

The dissenters rejected plaintiff's religious freedom argument saying that Vehicle Code provisions that protect the public from unsafe operation of motor vehicles are explicitly excluded from coverage under the RFPA, and that "for a given regulation to violate RFPA, it must 'substantially den[y an organization] a reasonable opportunity to engage in activities . . . fundamental to its religion.'"

2nd Circuit En Banc: Athletes Have Standing To Sue Under Title IX Over Transgender Girls on Girls' Teams

In Soule v. Connecticut Association of Schools, Inc., (2d Cir., Dec. 15, 2023), the U.S. 2nd Circuit Court of Appeals sitting en banc held that four cisgender female track and field athletes (plus two intervenors) have standing to sue a Connecticut high school athletic conference under Title IX for allowing transgender girls to compete in girls' track and field meets. Plaintiffs claimed that this deprived them of equal athletic opportunity. the court summarized its holding as follows:

We do not consider whether Plaintiffs’ Title IX claims have any merit or whether they would be entitled to the relief that they seek as a matter of equity, but rather whether the district court has jurisdiction to hear their claims in the first instance. We conclude that it does.... Plaintiffs have established Article III standing at this stage in the litigation. They have pled a concrete, particularized, and actual injury in fact that is plausibly redressable by monetary damages and an injunction ordering Defendants to alter certain athletic records. Second, the district court was not required to determine whether Defendants had adequate notice of a Title IX violation to be liable for monetary damages before reaching the merits of Plaintiffs’ Title IX claims.

This majority arose from splintered views expressed in 8 separate opinions concurring in part and dissenting in part from each other and spanning 142 pages. NBC News reports on the decision.

Recent Articles of Interest

From SSRN:

• Timothy Lubin, Religious Endowments in Ancient India and the Institutionalization of Brahmin Caste Status, (Special Symposium Issue: Status in Ancient and Medieval Law (edited by Timothy Lubin), American Journal of Legal History 63: 97–114 (2023)).
• Mark Movsesian, Christians and U.S. Policy on Armenia: Historically and Today, (Armenia and the Community of States (Georgi Asatryan ed.) (Forthcoming 2024)).
• Guy Baldwin, Freedom of Religion under the Australian Constitution: Is Proportionality the Answer?, ((2023) 3 Australian Journal of Law and Religion 20).
• Sébastien Laymond, Chechnya: a Wild Tale of Syncretism, (December 1, 2023).
• Cassidy Terrazas, Conceiving a New Legal Framework: The Implications of Texas Abortion Regulations for In Vitro Fertilization, (November 29, 2023).
• Abu Hayyan Saeed, Jurisprudence of Islam, (December 3, 2023).
• James M. Oleske, Jr., Free Exercise Uncertainty: Original Meaning? History and Tradition? Pragmatic Nuance?, (Wayne Law Review, Forthcoming).

From SmartCILP:

• Robert A. Destro, "Engines of the Ruling Party": The Establishment Clause and the Power Politics of "Managing Diversity", 74 Hastings Law Journal 1683-1750 (2023).
• John Witte Jr. & Eric Wang, The New Fourth Era of Religious Freedom, 74 Hastings Law Journal 1813-1848 (2023).
• Yuksel Sezgin, A Global and Historical Exploration: Legislative Reform in Muslim Family Laws in Muslim-Majority versus Muslim-Minority Countries, [Abstract], 45 Law & Policy 110-136 (2023).

European Court Advisory Opinion: Security Clearance May Be Withdrawn for Supporter of Religion That Is Threat to the State

In a Grand Chamber advisory opinion, the European Court of Human Rights has concluded that Belgium many deny a person the right to work as a security guard because he belongs to a religious movement that poses a threat to the state.  In Requested by the Conseil d’État of Belgium, (ECHR, Dec. 14, 2023), the Belgian Ministry of Interior had withdrawn the identification card of a security guard who was a supporter of the scientific branch of Salafism. The Ministry gave the following justifications:

... [S]cientific Salafism represents a threat to our model of society and to our country. Any security guard or officer must display conduct that is respectful of the fundamental rights of his or her fellow citizens and must respect democratic values....

Even though you have stated that you reject any violence in the name of Islam, the State Security Service has nevertheless indicated that you are a supporter of an ideology which, in particular, questions the legitimacy of Belgian law, advocates community sectarianism, fosters a backward view of the role of women and takes positions which threaten the fundamental rights and freedoms of citizens by a reactionary vision seeking to rid Islam of all its non-Islamic evolutions and influences.

The Court in its Advisory Opinion concluded:

The established fact that an individual belongs to a religious movement that, in view of its characteristics, is considered by the competent administrative authority to represent a threat to the State may justify a refusal to authorise that individual to work as a security guard or officer, provided that the measure in question: (1) has an accessible and foreseeable legal basis; (2) is adopted in the light of the conduct or acts of the individual concerned; (3) is taken, having regard to the individual’s occupational activity, for the purpose of averting a real and serious risk for democratic society, and pursues one or more of the legitimate aims under Article 9 § 2 of the Convention; (4) is proportionate to the risk that it seeks to avert and to the legitimate aim or aims that it pursues; and (5) may be referred to a judicial authority for a review that is independent, effective and surrounded by appropriate procedural safeguards, such as to ensure compliance with the requirements listed above.

Virginia Supreme Court Rules For Teacher Who Refused To Use Student's Preferred Pronouns

In Vlaming v. West Point School Board, (VA Sup. Ct., Dec. 14, 2023), the Virginia Supreme Court, in a 4-3 decision, held that a teacher who was fired after refusing for religious reasons to use masculine pronouns in referring to a biologically female student has a claim for violation of the free exercise provisions of the Virginia state Constitution. The majority, in a 73-page opinion, held that the Virginia Constitution requires greater accommodation than does the First Amendment of the U.S. Constitution when a neutral law of generally applicability conflicts with a religious belief.  The majority said in part:

[W]e hold that in the Commonwealth of Virginia, the constitutional right to free exercise of religion is among the “natural and unalienable rights of mankind,” ... and that “overt acts against peace and good order,”  correctly defines the limiting principle for this right and establishes the duty of government to accommodate religious liberties that do not transgress these limits.

The majority also held that plaintiff had adequately stated a claim under the Virginia Religious Freedom Restoration Act as well as a claim for violation of the free speech and due process provisions of the Virginia Constitution. The majority said in part:

Because the gravamen of Vlaming’s free-speech claims involves an allegation of compelled speech on an ideological subject, we hold that the circuit court erred when it dismissed Vlaming’s free-speech claims....

At the time that the School Board fired Vlaming, no clearly established law — whether constitutional, statutory, or regulatory — put a teacher on notice that not using third-person pronouns in addition to preferred names constituted an unlawful act of discrimination against transgender students. If the government truly means to compel speech, the compulsion must be clear and direct.

Finally the majority concluded that plaintiff adequately alleged that the School Board had breached his contract.

Justice Powell, joined by Chief Justice Goodwyn concurred in part, saying in part:

I write separately to clarify that, in my opinion, the proper test to evaluate a free exercise claim under Article I, Section 16 of the Virginia Constitution is traditional strict scrutiny as expressed in Sherbert v. Verner.... I disagree with the majority’s conclusion “that ‘overt acts against peace and good order,’ ... correctly defines the limiting principle for this right [in Article I, Section 16] and establishes the duty of the government to accommodate religious liberties that do not transgress these limits.”

Justice Mann filed a 64-page opinion dissenting in part. He said in part:

I dissent from the majority’s analysis and interpretation of Article I, Section 16.... The majority’s proposed limiting principle for the free exercise provision ... is not supported by the plain words of our Constitution, its history, our legal precedent, or legislative action of the General Assembly. I also dissent with respect to the majority’s rulings on Vlaming’s free speech and due process claims. Regarding Vlaming’s free-exercise claim, the majority establishes a sweeping super scrutiny standard with the potential to shield any person’s objection to practically any policy or law by claiming a religious justification for their failure to follow either.,,, 

Where a claimant alleges that the government was hostile towards his religious free exercise or that the government did not neutrally apply the law, the reviewing court should apply strict scrutiny to determine whether the government’s enforcement was narrowly tailored to achieve a compelling state interest....

As for Vlaming’s free speech and due process claims, the facts speak for themselves. Under well-established federal precedent, Vlaming’s allegations as pleaded establish that Vlaming was (1) a public employee engaged in curricular speech pursuant to his official job duties, (2) not speaking as a private citizen on a matter of public concern; and (3) had ample notice that his refusal to use Doe’s preferred pronouns was a violation of the School Board’s policies, and the School Board provided him an opportunity to be heard on his discipline.... 

Justice Powell and Chief Justice Goodwyn joined the portions of Justice Mann's opinion that relate to the Virginia Religious Freedom Restoration Act, and the free speech and due process provisions of the Virginia Constitution.

Florida Transgender Teachers Challenge Law That Bars Them from Using Their Preferred Pronouns

Suit was filed this week in a Florida federal district court by three current and former Florida public-school teachers who identify as transgender or non-binary. They challenge a provision of Florida law that bars K-12 teachers from providing students with the teacher's preferred title or pronouns if they do not reflect the teacher's biological sex. The 61-page complaint (full text) in Wood v. Florida Department of Education, (ND FL, filed 12/13/2023) alleges in part:

[The statute] unlawfully discriminates against Plaintiffs on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and Title IX of the Education Amendments of 1972 because whether Plaintiffs may provide to students a particular title or pronoun depends entirely on Plaintiffs’ sex, and Florida has only an invidious basis—not an exceedingly persuasive or even a rational one—for discriminating in this harmful way. It also unconstitutionally restrains Plaintiffs’ speech in violation of the Free Speech Clause of the First Amendment to the U.S. Constitution because it prohibits Plaintiffs from using the titles and pronouns that express who they are, the same way that their colleagues do.

The Hill reports on the lawsuit.