Court Upholds Kansas Law Requiring Biological Sex at Birth on Driver's Licenses

 In State of Kansas ex rel. Kobach v. Harper, (KS Dist. Ct., March 11, 2024), a Kansas state trial court, in issuing a preliminary injunction, rejected challenges to a Kansas law that requires driver's licenses to reflect a person's "biological sex, either male or female, at birth." The court said in part:

The crux of Intervenors’ constitutional argument is that requiring KDOR to display a licensee’s sex at birth on a driver’s license and in the KDOR database violates Section 1 of the Kansas Constitution Bill of Rights. Section 1 says: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” ...

[The Kansas Supreme court decision in] Hodes said Kansans have the right to control their own bodies. It did not say Kansans have a fundamental state constitutional right to control what information is displayed on a state-issued driver’s license. And the Intervenors’ testimony at the hearing was that producing a driver’s license indicating a sex different than their expressed gender did not result in physical violence, verbal harassment, loss of employment, loss of benefits, refusal of service, or negative interaction with law enforcement. Rather, Intervenors testified about feeling embarrassed, humiliated, or unsafe if someone gave them a puzzled look, hesitated, or questioned their identity when looking at their driver’s license. They testified to the discomfort of airport security pat downs that are a universal feature of modern travel. K.S.A. 77-207 does not violate any right to personal autonomy under Section 1....

Finally, Intervenors assert that K.S.A. 77-207 deprives them of equal protection of the law .... The rules are the same for identifying each person who seeks a driver’s license. Similarly situated people are not treated differently under the statute, thus there is no equal protection violation.

AP reports on the decision.

D.C. Circuit Hears Arguments on Tax Exempt Status of Church Promoting Religious Use of Psychedelic Drug

The U.S. court of Appeals for the D.C. Circuit yesterday heard oral arguments in Iowaska Church of Healing v. Werfel (audio of full oral arguments). In the case, the D.C. federal district court upheld the IRS's refusal to grant §501(c)(3) non-profit status to a church that promotes the religious use of Ayahuasca, a tea brewed from plants containing a drug that is illegal under the federal Controlled Substances Act. (See prior posting.) Bloomberg Law reports on the oral arguments.

Orthodox Jewish Passengers Sue JetBlue For Discrimination

Suit was filed late last month in a New York federal district court against JetBlue Airways by three observant Jewish passengers who were forced off of a flight by airline personnel after one of the passengers, an Orthodox Jewish man, asked other passengers to switch seats with him so, consistent with his religious beliefs, he would not be sitting next to a woman who was not his wife or a blood relative. The complaint (full text) in Ungar v. JetBlue Airways Corp., (SD NY, filed 2/27/2024), alleges in part:

48. ... At no time while Mr. Lunger was trying to observe his religious beliefs, did he force, become loud, or use a stern voice to intimidate any other passengers into changing seats with him.  

49. Even though Mr. Lunger had figured out a way to observe his religious beliefs without interfering with the flight, Defendant Doe [the flight attendant] discriminated against Mr. Lunger because of his race and his religion.

50. Defendant Doe brought the JetBlue pilot to the back of the plane.

51.  The JetBlue pilot falsely told the Plaintiffs that they could not change seats because it was a violation and it would cause a weight imbalance.... 

Plaintiffs claim they suffered discrimination and retaliation on the basis of religion and race in violation of 42 USC §1981 and California's Unruh Civil Rights Act. Live and Let's Fly reports on the lawsuit.

President Sends Ramadan Greetings Outlining Policy Initiatives

 President Biden yesterday issued a Statement on the Occasion of Ramadan (full text), saying in part:

Tonight—as the new crescent moon marks the beginning of the Islamic holy month of Ramadan—Jill and I extend our best wishes and prayers to Muslims across our country and around the world....

...As Muslims gather around the world over the coming days and weeks to break their fast, the suffering of the Palestinian people will be front of mind for many. It is front of mind for me.

The United States will continue to lead international efforts to get more humanitarian assistance into Gaza by land, air, and sea....

While we get more life-saving aid to Gaza, the United States will continue working non-stop to establish an immediate and sustained ceasefire for at least six weeks as part of a deal that releases hostages. And we will continue building toward a long-term future of stability, security, and peace. That includes a two-state solution to ensure Palestinians and Israelis share equal measures of freedom, dignity, security, and prosperity. That is the only path toward an enduring peace.

Here at home, we have seen an appalling resurgence of hate and violence toward Muslim Americans. Islamophobia has absolutely no place in the United States, a country founded on freedom of worship and built on the contributions of immigrants, including Muslim immigrants. My Administration is developing the first-ever National Strategy to Counter Islamophobia and Related Forms of Bias and Discrimination, to take on hate against Muslim, Sikh, South Asian, and Arab American communities, wherever it occurs.

Ban on Caste Discrimination Is Constitutional

In Bagal v. Sawant, (WD WA, March 8, 2024), a Washington federal district court rejected First and 14th Amendment challenges to the City of Seattle's adding of "caste" as a protected class under its anti-discrimination Ordinance. The court said in part:

First, Plaintiff argues that incorporating “caste” into existing anti-discrimination laws ipso facto creates a stigma, levelled towards a specific and insular minority group, namely members of the Hindu religion....

Plaintiff simply does not allege they are burdened, in any manner, from practicing their faith.... [H]aving failed to allege a cognizable injury, Plaintiff de facto lacks standing to assert a Free Exercise challenge to the Ordinance. Plaintiff’s Establishment Clause claim is similarly unavailing.... Fundamentally, Plaintiff’s reasoning is that the City of Seattle’s involvement on an issue of equal importance to practitioners of a certain religion becomes, as a consequence, activity in favor or opposition to that religion. And that, because the City of Seattle opted to disfavor caste-based forms of discrimination, a fortiori it condemned all notions of caste as it was understood by any religion. But that logic proves too much. And even assuming, arguendo, that the Ordinance does condemn notions of caste as is believed by a certain religion, that does not constitute activity in support or disparagement of that religion. For instance, birth control is a topic that involves both religious beliefs and general welfare concerns. And yet, no court has ever held that government approval of birth control violates the Establishment Clause....

It is not enough, in other words, that the anti-caste legislation strikes members of a religion as reflecting poorly on their religious beliefs.... In this case, the Ordinance’s principal effect is not to endorse a religion, but simply to bolster local anti-discrimination laws.  Any coincidental reference to a shared phenomenon (such as caste) is secondary, if not wholly, immaterial....

Second, Plaintiff contends that the Ordinance violates the Equal Protection Clause....

Nowhere does the text of the Ordinance make use of prohibited classifications.  Rather, the Ordinance is facially neutral and of general applicability.  Moreover, wholly absent from Plaintiff’s complaint are any facts suggesting that the legislative drafters were actually motivated by racial or ethnic animus.... Further to the point, Plaintiff’s complaint does not plausibly allege that the City of Seattle has applied the Ordinance in a discriminatory manner.

Recent Articles of Interest

From SSRN:

• James Gerard Dwyer, Smith's Last Stand? Free Exercise and Foster Care Exceptionalism, (University of Pennsylvania Journal of Constitutional Law, Vol. 24, No. 856, 2022).
• Jianlin Chen, Law and Politics of Religious Fraud Regulation: China, Taiwan and Hong Kong, (Edward Elgar 2023).
• Kyle Velte, Debunking the Narrowness Narrative in LGBTQ Religious Exemption Claims, (St. Louis University Law Journal (forthcoming 2024) (Childress Lecture Symposium)).
• Aziza Ahmed, Nicole Huberfeld & Linda C. McClain, Introduction: Securing Reproductive Justice After Dobbs, (51 Journal of Law, Medicine, & Ethics 463 (Fall 2023)).
• Kenneth Robert Davis, A Farewell to Harms: Rethinking the Injury Requirements of Title VII, (Harvard Journal on Legislation, Vol. 61, No. 1, 2024).

From SmartCILP:

• Syafiq Hasyim, Book Review. The Shariatisation of Indonesia: The Politics of the Council of Indonesian Ulama (MUI), by Syafiq Hasyim, 57 Law & Society Review 554-556 (2023).
• Hayden J. Bellenoit, Legal Limbo and Caste Consternation: Determining Kayasthas' Varna Rank in Indian Law Courts, 1860–1930, 41 Law & History Review 43-63 (2023).
• Paolo Astorri, The Redefinition of Clandestine Marriage by Sixteenth-Century Lutheran Theologians and Jurists, 41 Law & History Review 65-92 (2023).

Federal Agencies Finalize Rule Amendments on Grants to Faith-Based Organizations

On March 4, nine federal agencies published a 52-page joint release titled Partnerships With Faith-Based and Neighborhood Organizations (full text) in the Federal Register amending rules adopted by them during the Trump Administration. In a press release, Americans United summarizes the rule changes in part as follows:

The new regulations:

• Reinstate the requirement that people seeking services be informed of their religious freedom rights, which include that:

• They can’t be discriminated against because of their religion or because they are nonreligious.

• They can’t be required to pray or participate in religious activities.

• They can file a complaint if their rights are violated.

• Reinstate safeguards that ensure that people who obtain social services through vouchers are not forced to attend or participate in religious activities.

• Eliminate Trump-era provisions that were designed to allow social service providers to refuse to provide key services....

Ramadan Begins Sunday Evening

 As announced by the Fiqh Council of North America, Ramadan begins this evening (Sunday, March 10). CAIR has released a Ramadan Toolkit with templates for employees and students to use to seek accommodations for Ramadan observance.  It also includes templates and sample texts for a resolution on Ramadan and Eid that can be adopted by governmental bodies, as well as a template letter regarding a Gaza Ceasefire resolution.

Indiana Legislature Passes Bill Barring Antisemitism in Public Schools and Colleges

On Friday, the Indiana legislature gave final passage to House Bill 1002 (full text) which amends the state Education Code to specifically protect against antisemitism in public schools and colleges.  The bill, as finally enacted, defines antisemitism by adopting the text of the International Holocaust Remembrance Alliance's definition, but, in a compromise, excludes examples given by IHRA that, among other things, indicate when criticism of Israel amounts to antisemitism.  AP reports on the bill's passage, discussing the compromise in greater detail. The bill now goes to Governor Eric Holcomb for his signature.

Student Sues School Board Alleging Gender Affirming Policies Violate Her Rights

Suit was filed earlier this week in a Virgina state trial court by a high school student challenging Fairfax County School Board regulations (full text) that support transgender students.  The complaint (full text) in Doe v. Fairfax County School Board, (VA Cir. Ct., filed 3/4/2024), alleges in part:

... FCPS Regulation 2603.2 and its application unconstitutionally violates the Petitioner’s sincerely held philosophical and religious beliefs by compelling her to refer to “[s]tudents who identify as gender-expansive or transgender [] by their chosen name and pronoun ....  

... [They] further unconstitutionally violate the Petitioner’s philosophical and religious beliefs by compelling her to share a restroom with a biological male. 

... [They] unconstitutionally discriminate against the Petitioner on the basis of her sex by requiring her to use a private restroom to remain consistent with her beliefs while allowing a biological male to use the female restroom... [and by permitting] a biological male to feel safe and comfortable by having full access to any restroom of his choice while not allowing the Petitioner to feel safe and comfortable by using the restroom of her biological sex....

... FCPS has knowingly and blatantly violated the Petitioner’s rights by forcing her to accept the ideological viewpoint of the government and the claimed rights and privileges of other students. 

America First Legal issued a press release announcing its filing or the lawsuit. FFXNow reports on the lawsuit.

Alabama Passes Law Protecting IVF Clinics from Liability

Reacting to the recent Alabama Supreme Court decision holding that the state's wrongful death statute applies to the negligent destruction of frozen embryos created during IVF treatment, the Alabama legislature yesterday passed, and Governor Kay Ivey immediately signed SB159 (full text) which provides in part:

Related to in vitro fertilization and notwithstanding any provision of law ..., no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization....

... [N]o criminal prosecution may be brought for the damage to or death of an embryo against the manufacturer of goods used to facilitate the in vitro fertilization process or the transport of stored embryos.

The statute explicitly has retroactive effect. NPR reports on the new law.

Virginia Legislature Passes Symbolic Bill Recognizing Same-Sex Marriages

In Virginia, Governor Glenn Youngkin has until tomorrow to decide whether or not to sign HB 174/ SB 101 (full text) which provides:

No person authorized by § 20-14 to issue a marriage license shall deny the issuance of such license to two parties contemplating a lawful marriage on the basis of the sex, gender, or race of such parties. Such lawful marriages shall be recognized in the Commonwealth regardless of the sex, gender, or race of the parties.

Religious organizations and members of the clergy acting in their religious capacity shall have the right to refuse to perform any marriage.

As reported by Dogwood, the bill was introduced because of concern that the U.S. Supreme Court might overrule its caselaw protecting same-sex marriages. Even if the Governor signs the bill, its impact on same-sex marriages would only be symbolic since the Virginia Constitution Sec. 15-A prohibits recognition of same-sex marriages in the state and would take precedence over the statute if the U.S. Supreme Court returned the issue of recognition of same-sex marriages to the states.

9th Circuit Grants En Banc Rehearing in Huntsman's Suit Against LDS Church

In an Order (full text) issued March 1, the U.S. 9th Circuit Court of Appeals voted to grant en banc review in Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints.  In doing so, the Order vacates the decision of the 3-judge panel in the case in which James Huntsman, a prominent former member of the LDS Church who had contributed over $2.6 million to it, charged the Church with fraudulently misrepresenting the manner in which funds from tithes would be used. (See prior posting.) Arguments in the rehearing are set for June 24.  ABC News 4 reports on the court's action.

Christian Organization Challenges Grant Rule Barring Religious Favoritism in Hiring

Suit was filed this week in an Oregon federal district court challenging an anti-discrimination rule of the Oregon Department of Education that disqualified a Christian youth-mentoring ministry from receiving $410,000 in grants for which it had initially been selected. The Christian group requires all of its board members, its 30 employees and 100+ volunteers to adhere to the organization's Statement of Faith. The Grant Program's rule bars grantees from favoring co-religionists as employees or volunteers. The complaint (full text) in Yourh 71Five Ministries v. Williams, (D OR, filed 3/4/2024), contends that the rule violates its Free Exercise and Free Expression rights, saying in part:

Because it emphasizes one-to-one mentoring and creating authentic, trusting relationships, 71Five Ministries depends on its staff and volunteers to fulfill the ministry’s distinctly Christian mission and purpose....

Defendants cannot disqualify otherwise eligible religious organizations from participation in otherwise available government benefit programs, including the Youth Community Investment Grant Program, “solely because of their religious character,”

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

Man Sentenced To 1 Year + For Threatening Synagogue Shooting

According to a press release from the U.S. Attorney's Office for the Western District of Michigan, on Monday a 20-year old Michigan man was sentenced to 12 months and one day in prison, 3 years of supervised release and restitution payment of $10,648 for sending numerous Instagram messages threatening a mass shooting at an East Lansing, MI synagogue. Notes on defendant's cell phone indicated that he planned to commit suicide after the mass shooting.

France Adds Abortion Rights to Its Constitution

 As reported by AP, France's Parliament yesterday gave final approval to a Constitutional amendment that guarantees abortion rights:

The measure was approved in a 780-72 vote in the Palace of Versailles. Abortion enjoys wide support in France across most of the political spectrum, and has been legal since 1975....

Both houses of France’s parliament, the National Assembly and Senate, had separately adopted a bill to amend Article 34 of the French Constitution, but the amendment needed final confirmation by a three-fifths majority in the special joint session. The measure specifies that “the law determines the conditions by which is exercised the freedom of women to have recourse to an abortion, which is guaranteed.”...

The government argued in its introduction to the bill that the right to abortion is threatened in the United States, where the Supreme Court in 2022 overturned a 50-year-old ruling that used to guarantee it....

Christian Employers Protected from Requirement to Provide Insurance for Gender Transition Procedures

 In Christian Employers Alliance v. U.S. EEOC, (D ND, March 4, 2024), a North Dakota federal district court enjoined the Department of Health and Human Services from enforcing the Affordable Care Act, and the EEOC from enforcing Title  to require the Christian Employers Alliance or its present or future members to provide their employees insurance coverage for gender transition procedures. The court said in part:

... [I]f CEA had to comply with these mandates, its members would have to violate their sincerely held religious beliefs which is an impermissible exercise under the First Amendment and RFRA. ...

While protecting the right of transgender patients to access crucial healthcare and protecting workers from sex discrimination is certainly a compelling interest, the Defendants here have done nothing more than identify a broadly formulated interest in an attempt to justify the general applicability of the government mandates....  Even if the Court were to accept the Defendants’ purpose for the mandates as a compelling interest, the Defendants failed to provide any evidence showing this policy was the only feasible means to achieve its compelling interest....

Just The News reports on the decision.

Right Wing Catholic Website Will Close Down After Settling Defamation Lawsuit

 AP reports on the imminent closing of the Church Militant website following the website's settlement of a defamation lawsuit.  According to AP:

A far-right, unofficial Catholic media website has agreed to pay $500,000 to a New Hampshire priest who sued for defamation over a 2019 article that it now disavows. The website also is planning to shut down soon, the priest’s attorney says.

The apology by Church Militant [full text] came after the organization agreed last week to a federal court judgment in favor of the Rev. Georges de Laire, an official with the Diocese of Manchester. This legal setback comes just months after its founder’s resignation over a breach of its morality clause.

“As part of the parties’ resolution, Church Militant has represented that it will be shutting down at the end of April,” attorney Howard Cooper of the Boston law firm Todd & Weld, which represented de Laire, said via email....

Church Militant and its sleek newscasts drew a loyal following for years with a mix of fiercely right-wing politics and radically conservative Catholicism in which many of America’s bishops were viewed with suspicion and disgust. It “is not recognized as a Church apostolate” and lacks authorization to promote itself as Catholic, according to the Archdiocese of Detroit, in whose territory it is based....

The full AP article has additional details.

UPDATE: On March 7, AP reports that in the settlement of a lawsuit the city of Baltimore has agreed to pay $275,000 toward the legal fees incurred by St. Michael's Media, the parent of Church Militant.  The suit successfully prevented the city from cancelling a protest rally against Catholic Bishops. (See prior posting.)

Certiorari Denied in Ministerial Exception Case

Yesterday the U.S. Supreme Court denied review in two companion appeals, Bowes v. Liberty University, Inc. (Docket No. 23-550) and Liberty University, Inc. v. Bowes (Docket No. 23-703, certiorari denied 3/4/2024) (Order List.).  The three judges on the 4th Circuit panel deciding the case below each had a different view on application of the ministerial exception doctrine in this age discrimination case brought by a Liberty University art professor. (See prior posting.) The case also posed other interpretive questions under Title VII of the 1964 Civil Rights Act.

9th Circuit En Banc Refuses to Bar U.S. Transfer of Sacred Apache Site to Copper Mining Company

In Apache Stronghold v. United States, (9th Cir., March 1, 2024), the U.S. 9th Circuit Court of Appeals sitting en banc, by a vote of 6-5, refused to enjoin the government from transferring to a copper mining company federally-owned forest land that is of significant spiritual value to the Western Apache Indians. The land sits on the third largest deposit of copper ore in the world. The case generated six separate opinions spanning 241 pages. The court's per curiam opinion summarizes the holding:

A majority of the en banc court ...concludes that (1) the Religious Land Use and Institutionalized Persons Act of 2000 ... and the Religious Freedom Restoration Act ... are interpreted uniformly; and (2) preventing access to religious exercise is an example of substantial burden.  A majority of the en banc court therefore overrules Navajo Nation v. U.S. Forest Service to the extent that it defined a “substantial burden” under RFRA as “imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder).”...   

A different majority ...concludes that (1) RFRA subsumes, rather than overrides, the outer limits that the Supreme Court’s decision in Lyng v. Northwest Indian Cemetery Protective Ass’n ... places on what counts as a governmental imposition of a substantial burden on religious exercise; and (2) under Lyng, a disposition of government real property does not impose a substantial burden on religious exercise when it has “no tendency to coerce individuals into acting contrary to their religious beliefs,” does not “discriminate” against religious adherents, does not “penalize” them, and does not deny them “an equal share of the rights, benefits, and privileges enjoyed by other citizens.”... The same majority holds that Apache Stronghold’s claims under the Free Exercise Clause and RFRA fail under these Lyng-based standards and that the claims based on the 1852 Treaty fail for separate reasons.  

We therefore AFFIRM the district court’s order denying the motion for a preliminary injunction.

Becket issued a press release announcing the decision and saying in part: "With the help of Becket, Apache Stronghold has vowed to appeal the decision to the U.S. Supreme Court." Los Angeles Times reports on the decision.

UPDATE: On May 14, 2024, the Court issued an amended opinion, clarifying some of the reasoning of the majority.