EEOC Obtains Settlement for Failure to Accommodate Jewish Employee's Sabbath Observance

The EEOC today announced that two related automotive hauling and logistics companies have agreed to a $65,000 settlement (plus an injunction, reporting, monitoring and employee training requirements) to settle a Title VII suit charging them with religious and racial discrimination and retaliation.  The EEOC said in part in its press release:

According to the EEOC’s lawsuit, Wheeler subjected Charles R. Lynch, III, a Torah Observant employee at its Sheffield, Ohio, location to discrimination when they revoked his religious accommodation that would have allowed him to continue having Saturdays off to observe the Sabbath. The company also exposed Lynch, who is Israeli, to unlawful harassment that included likening him to a terrorist and mocking his religious beliefs.

Louisiana Governor Signs "Given Name Act", School Chaplaincy and 10 Commandments Bills

On Wednesday, Louisiana Governor Jeff Landry signed a package of 18 separate bills which the Governor's office described as " bills that will transform our education system and bring back common sense in our classrooms."  Among the bills were:

HB 121, the "Given Name Act" (full text). The new law prohibits any public or charter school policy "that provides for an inquiry of" the pronouns of a student or employee that are inconsistent with their biological sex, or "that provides for an inquiry of" their name that is not their legal name or a derivative of it. Teachers and other employees as well as other students may not be required to address a student by a name other than the student's legal name or a derivative of it, or to address a student using pronouns that are inconsistent with the person's biological sex. A parent may seek corrective action if a school employee refers to a student by other pronouns or by another name and may bring suit if corrective action is intentionally not taken. ADF issued a press release announcing the governor's signing of the bill.

HB 334 (full text) which permits public school boards to "employ or accept as a volunteer a certified chaplain to provide support, services, and programs for students, staff, and parents as assigned by a school board...." The new law also provides the chaplain with immunity from suit for actions or statements made under the program unless they were "maliciously, willfully, and deliberately intended to cause harm to harass or intimidate those seeking support, services and programs."

HB 71 that requires the posting of the Ten Commandments in every public school and college classroom. See this post for additional details.

Court Says States Lack Standing to Challenge EEOC's New PWFA Abortion-Accommodation Rule [CORRECTED]

In States of Tennessee et. al. v. EEOC, (ED AR, June 17, 2024), an Arkansas federal district court held that 17 states that are plaintiffs in the case lack standing to challenge an EEOC Final Rule implementing the Pregnant Workers Fairness Act.  At issue is the Rule's requirement that employers provide reasonable accommodation for employees' elective abortions. The court said in part:

[The states] press dual theories of injury -- sovereign harms and economic harms. The sovereign harms, the States say, are twofold: the rule will abridge their ability to regulate abortions and their interests in maintaining a pro-life message in dealing with state employees. The economic harms are the rule-related compliance costs the States say they will incur in response to potential enforcement....

The sovereign harms are not imminent because there is no credible threat of enforcement. ...

Even assuming an injury in fact, though, the States' sovereign-injury theory still fails for lack of causation and redressability. ...

Unlike in situations involving private employers, the EEOC cannot bring enforcement actions against state employers....  If an agreement isn't reached within thirty days after a charge is filed, the EEOC "shall take no further action and shall refer the case to" the Department of Justice"....

That leaves the alleged economic harms. The States don't claim any sunk costs. They only say that their compliance costs are imminent.. This economic-harm theory fails for two reasons.

First, the challenged costs-- those resulting only from rule-related compliance activities associated with illegal, elective abortions are neither concrete nor particularized. ...

Second, even assuming some concrete and particularized compliance costs related to illegal, elective abortions, these costs are not fairly traceable to any threat of enforcement....

Beyond the intense controversy surrounding abortion, there are no signs that this is a major questions case. Chevron's general rule applies.

CORRECTION: An earlier version of this post incorrectly said this was decided by a Tennessee federal district court. 

A Louisiana federal district court has just reached the opposite conclusion (see prior posting.) [Thanks to Thomas Rutledge for the lead.]

Court Says EEOC Exceeded Its Authority in New Rules Under Pregnant Workers Fairness Act

In State of Louisiana v. EEOC, (WD LA, June 17, 2024), a Louisiana federal district court granted a preliminary injunction to the states of Louisiana and Mississippi, as well as to the U.S. Conference of Catholic Bishops and two Louisiana dioceses, postponing the effectiveness of new EEOC rules under the Pregnant Workers Fairness Act that require employers to accommodate employees' elective abortions. The court said in part:

If Congress had intended to mandate that employers accommodate elective abortions under the PWFA, it would have spoken clearly when enacting the statute, particularly given the enormous social, religious, and political importance of the abortion issue in our nation at this time (and, indeed, over the past 50 years).  The Court is therefore not persuaded, on the record before it, that Congress could reasonably be understood to have granted the EEOC the authority to interpret the scope of the PWFA in a way that imposes a nationwide mandate on both public and private employers – irrespective of applicable abortion-related state laws enacted in the wake of Dobbs – to provide workplace accommodation for the elective abortions of employees.

In this sense, EEOC’s use of its regulatory power to insert the issue of abortion into a law designed to ensure healthy pregnancies for America’s working mothers squarely implicates the “major questions doctrine” as enunciated by the Supreme Court....  The major questions doctrine applies when an “agenc[y] assert[s] highly consequential power beyond what Congress could reasonably be understood to have granted.”...

Clearly, EEOC failed to include a broad religious exception in the Final Rule, and... EEOC’s interpretation of the PWFA religious exception – inasmuch as it mirrors the religious exception in Title VII, an antidiscrimination statute – does not square with the PWFA.

See prior related posting.

9th Circuit Reverses Dismissal of Suit Challenging Refusal to Grant Religious Exemptions to Vaccine Mandate

 In Bacon v. Woodward, (9th Cir., June 18, 2024), the U.S. 9th Circuit Court of Appeals in a 2-1 decision reversed a Washington federal district court's dismissal of a suit by firefighters who claim that their free exercise rights were infringed by the city of Spokane refusing to accommodate their religious objections to the Covid vaccine. The majority said in part:

The Complaint alleges that, once unvaccinated firefighters were terminated, Spokane would turn to firefighters from neighboring fire departments to fill the gaps left by the firefighters’ departure even though those fire departments granted religious accommodations to their employees.  In other words, Spokane implemented a vaccine policy from which it exempted certain firefighters based on a secular criterion—being a member of a neighboring department—while holding firefighters who objected to vaccination on purely religious grounds to a higher standard.  The Free Exercise Clause prohibits governments from “treat[ing] comparable secular groups more favorably.”...

 ... [T]he Complaint alleges at least three less restrictive ways that “[t]he Mayor, the Fire Chief, and the City could accomplish its same compelling purpose.”...

Judge Hawkins dissented, saying that rational basis review should apply:

The complaint alleges that the City Defendants applied the Proclamation to their employees uniformly and treated medical and religious objectors the same.  The complaint also alleges that other cities and entities adopted different policies and the City Defendants had pre-existing mutual aid agreements with some neighboring fire departments.  The complaint then predicts that, as a result of those pre-existing mutual aid agreements, some unvaccinated firefighters from neighboring departments may operate within the City of Spokane.  In my view, these allegations are insufficient to plausibly show that the Proclamation, as implemented by the City Defendants, is not neutral or generally applicable.

9th Circuit: Homeowner's Intrusive Christmas Display at Center of Fragmented Decision on Fair Housing Act Claims

 In Morris v. West Hayden Estates First Addition Homeowners Association, Inc., (9th Cir., June 17, 2024), the U.S. 9th Circuit Court of Appeals partially affirmed an Idaho federal district court's rejection of a jury's verdict against a Homeowner's Association charged by plaintiff with violating provisions of the Fair Housing Act. At issue was efforts by the Homeowners Association to prevent plaintiffs from purchasing a home in the subdivision because of plaintiffs' plans to put on at their home a multi-day Christmas festival with thousands of lights, a live nativity scene, costumed characters and a real camel, all in order to raise funds for charity. A letter from the Homeowners Association to plaintiffs included a sentence reading: "And finally, I am somewhat hesitant in bringing up the fact that some of our residents are non-Christians or of another faith and I don’t even want to think of the problems that could bring up."

Judge Berzon's opinion, reflecting the conclusion of a majority of the 3-judge panel, held that there was insufficient evidence to support the jury's verdict of religious discrimination in violation of §3604(b) the Fair Housing Act, saying in part:

... [T]o support a disparate treatment claim, plaintiffs must be able to point to some concrete adverse impact suffered as a result of the defendants’ behavior.  The Morrises have pointed to no such harm.

Similarly she held that the evidence did not support claims of a violation of §3604(c), saying in part:

Viewing the letter as a whole, an ordinary reader would understand the Board to have indicated a preference, limitation, or discrimination based not on whether the prospective homeowners were themselves religious or nonreligious, Christian or atheist, but on whether the event they proposed to host once a year would disturb the neighbors, both by its size and raucousness and by offending non-Christians. 

However, the court upheld the jury's conclusion that the Homeowners Association violated §3617 of the Act, saying in part:

The Board’s letter to the Morrises could reasonably be read to indicate that the program’s association with the Christian faith was one consideration in the Board’s opposition to the show....

These statements sufficiently support an inference by the jury that an anti-Christian purpose was at least a motivating factor in the Board’s conduct regarding the proposed Christmas event, independent of any other concerns also underlying that conduct.  And given this permissible inference, there was sufficient evidence for the jury rationally to conclude that the Board interfered with the Morrises’ exercise of their right to purchase and enjoy their home at least in part because of their religious expression, and therefore violated § 3617 of the FHA.

Judge Berzon went on to conclude that on the facts of this case, the Homeowners Association was not liable for harassing conduct of subdivision residents.

Judge Tashima dissented in part, contending that the district court correctly granted judgment for the Homeowners Association on all claims because the Homeowners Association's concern was with the size and scale of the Morrises' holiday events, not with the Morrises' religion.

Judge Collins dissented in part saying that he would have affirmed the jury's finding of liability on all the Morrises' claims.

6 More States Fend Off Enforcement of Title IX Transgender Discrimination Rules

Four days after a Louisiana federal district court enjoined the Department of Education from enforcing its new sex-discrimination rules under Title IX against Louisiana, Mississippi, Montana and Idaho (see prior posting), a Kentucky federal district court issued an opinion barring enforcement against Tennessee, Kentucky, Ohio, Indiana, Virginia, and West Virginia which were plaintiffs in the case. DOE's new rules interpret the Title IX ban on sex discrimination to include discrimination against transgender students and faculty by institutions receiving federal financial assistance. Intervenors in the Kentucky case are an organization of Christian educators and a cisgender high school girl who objects to a transgender female who was on her Middle School track team. In State of Tennessee v. Cardona, (ED KY, June 17, 2024), the court in a 93-page opinion said in part:

The Department’s new definition of “discrimination on the basis of sex” wreaks havoc on Title IX and produces results that Congress could not have intended....

For purposes of Title IX, “sex” is unambiguous.  Therefore, there is no “implicit delegation from Congress” to the Department to change or expand its meaning.... But even if the word were ambiguous, there would be significant reason for pause before assuming that Congress “had intended such an implicit  delegation.”...  Education is one of the most important functions of state and local governments and is an area where states “historically have been sovereign.” ...  Accordingly, it is unlikely that Congress would have intended to delegate the authority to deviate from Title IX’s original purpose “in so cryptic a fashion.”...

The major questions doctrine assumes that Congress speaks clearly when it delegates to an agency the authority to make “decisions of vast economic and political significance.”...

The court also concluded that the new rules violate teachers' free speech rights, saying in part:

... [P]rivate and public institutions, as well as the students, faculty, and staff therein, will be forced to convey a particular message that may contradict moral or religious values....  For example, the Final Rule’s definition of harassment will likely compel “students and teachers to use ‘preferred’ rather than accurate pronouns.” ...

It is unclear how the Government’s articulated position can be seen as anything less than a tacit endorsement of a content-based heckler’s veto So long as the offended individuals complain with sufficient vigor, the refusal to abide by preferred pronouns can be deemed harassment and exposes a recipient of Federal funds to liability under Title IX....

The court also focused on parental rights and privacy rights, saying in part:

Although the Final Rule gestures at retaining a certain role for parents, it does not provide that parental opposition to their child’s selective gender identity requires schools to exempt that student from Title IX’s new mandate.  To the contrary, it implies that Title IX could supersede parental preferences about a child’s treatment depending on the case.

... [D]espite society’s enduring recognition of biological differences between the sexes, as well as an individual’s basic right to bodily privacy, the Final Rule mandates that schools permit biological men into women’s intimate spaces, and women into men’s, within the educational environment based entirely on a person’s subjective gender identity.  This result is not only impossible to square with Title IX but with the broader guarantee of education protection for all students.

ADF issued a press release announcing the decision.

White House Statements Extend Greetings On Eid al-Adha

Today is Eid al-Adha.  Yesterday the White House posted a message from President Biden (full text) and a separate message from Vice-President Harris (full text) conveying holiday wishes to American Muslims and Muslims around the world.  President Biden said in part:

This year, Eid al-Adha comes at a difficult time for many Muslims around the world. In Gaza, innocent civilians are suffering the horrors of the war between Hamas and Israel. Too many innocent people have been killed, including thousands of children. Families have fled their homes and seen their communities destroyed. Their pain is immense. My Administration is doing everything we can to bring an end to the war, free all hostages, deliver humanitarian relief, and work toward a future two-state solution, which I continue to believe is the only way to achieve a lasting peace for Palestinians and Israelis. And I strongly believe that the three-phase ceasefire proposal Israel has made to Hamas and that the U.N. Security Council has endorsed is the best way to end the violence in Gaza and ultimately end the war.

We’re also working to bring a peaceful resolution to the horrific conflict in Sudan. And we continue to advocate for the rights of other Muslim communities – including the Rohingya in Burma and the Uyghurs in the People’s Republic of China – facing persecution around the world. They, like all people, deserve to live free from violence and fear....

In the spirit of Eid al-Adha, let us all renew our commitment to values that unite us – compassion, empathy, and mutual respect – which are both American and Islamic. We look forward to welcoming home our American Muslim pilgrims who have earned the title “Al-Hajj.” To them and all Muslims across the globe, we wish you a blessed and meaningful holiday. Eid Mubarak!

The White House also posted a Fact Sheet (full text) setting out a lengthy list of steps it has taken this year to support the Muslim community.

Recent Articles of Interest

From SSRN:

• Yofi Tirosh, Consent, Multiculturalism, and Exit: A Contemporary Critique of Religious Accommodation and the Right to Sex Equality, Political Theology (forthcoming).
• Caroline Mala Corbin, Religion Clause Challenges to Early Abortion Bans, (Forthcoming, Boston University Law Review Online, Vol. 104, p. 37, 2024).
• Dov Fischer, A Modern Commentary to Maimonides, Chapter 7 קביעוּת ודחיוֹת שׁל ראשׁ השׁנה הלכות קידוש החודש, (May 13, 2024).
• Kalaghe Ndunda, Sex or Both Sex and Sexual Orientation? Critique of Supreme Court Decision in Eric Gitare in Line With Holistic Interpretation of the Constitution of Kenya 2010, (March 7, 2024).
• Kristen Popham, Embryos Are Not People, but Disability Is Difference: Toward an Antidiscrimination Theory for Reproductive Services, (January 10, 2024).
• Ahmer Bilal Soofi, Al-ma’rūf—the Wonder Phrase of the Quran and Contemporary Laws (May 14, 2024).

From SmartCILP and elsewhere:

• Angela R. Pruitt, Maybe Today, Satan: A Christian Supreme Court, Unbalanced Religious Clauses, and the Rise of The Satanic Temple, 26 Journal of Gender, Race & Justice 271 (2023).
• M. Williams, Conversion Therapy on LGBTQ+ Children as a Form of Torture and the Rights of the Child in the Face of the United States Constitution’s Free Speech and Religious Free Exercise Clauses, 26 Journal of Gender, Race & Justice 393 (2023).

6th Circuit: DOE's Interpretive Letter on Title IX Should Have Gone Through Notice and Comment Procedure

In State of Tennessee v. Department of Education, (6th Cir., June 14, 2024), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that a "Dear Educator" Letter and accompanying Fact Sheet from the Department of Education interpreting Title IX should be set aside because they amount to a legislative rule which did not go through the required notice and comment procedure.  At issue are documents from DOE interpreting Title IX's ban on sex discrimination as covering discrimination based on sexual orientation and gender identity in education programs and activities that receive federal financial aid. The suit challenging these documents was brought by 20 states whose policies on separate sex programs are based on biological sex.  In a footnote, the majority added:

We are aware that the Federal Register recently published a final rule amending the Department of Education’s Title IX regulations.... This new rule does not moot this case for two reasons.  First, the final rule does not go into effect until August 2024.  Second, the final rule does not cover everything that is covered by the documents, like housing and athletics.

Judge Boggs dissented, contending that plaintiffs lacked standing to bring the lawsuit, saying in part:

... [T]he Interpretation, “Dear Educator” Letter, and Fact Sheet ,,, are interpretative rules or policy statements, which are generally not final for purposes of judicial review under the Administrative Procedure Act.....

I agree that the Documents are intended to have in terrorem effect on states and school districts such as the plaintiffs.  They clearly can be interpreted as desiring a change in voluntary policies by recipients of federal funding.  However, the same could be said of a major Presidential address or a Secretarial campaign targeting the States with speeches and public statements.

Missouri Abortion Bans Do Not Violate State Constitution's Establishment Clauses

In Blackmon v. State of Missouri, (MO Cir. Ct., June 1, 2024), a Missouri trial court held that Missouri's various statutory provisions banning abortion do not violate the Establishment Clauses of the Missouri Constitution. Plaintiffs focused particularly on the mention of God in one of the statutory provisions and the legislative determination that life begins at conception in other provisions. The court concluded that the language mentioning God was similar to that in the Preamble to the Missouri Constitution, and that finding that language problematic would call into question whether the state Constitution's Preamble itself violates the Constitution.  In rejecting plaintiffs' other challenges, the court said in part:

Large portions of the parties' arguments centered around comments made by legislators concerning their religious motivations for supporting the Challenged Provisions. However, the court finds that individual comments by legislators should be given little to no consideration when determining the constitutionality of the Challenged Provisions....

The court does not accept Petitioners' argument that the determination that life begins at conception is strictly a religious one. The plain language of the Challenged Provisions stating that life begins at conception do not do so in religious terms.... While the determination that life begins at conception may run counter to some religious beliefs, it is not itself necessarily a religious belief. As such, it does not prevent all men and women form worshiping Almighty God or not worshipping according to the dictates of their own consciences....

Americans United issued a press release responding to the decision.

DOE Enjoined from Applying New Title IX Rules Protecting Transgender Students In 4 States

In State of Louisiana v. U.S. Department of Education, (WD LA, June 13, 2024), a Louisiana federal district court enjoined the Department of Education from enforcing against four states new rules under Title IX which, among other things, bar discrimination by educational institutions against transgender students. (See prior posting). The new rules essentially apply the Supreme Court's interpretation of Title VII in the Bostock case to Title IX as well. The injunction applies to the states that were plaintiffs in the case-- Louisiana, Mississippi, Montana and Idaho. The court found that the new rules violate a number of statutory and constitutional provisions, saying in part:

In applying these statutory principles to Title IX, the Court finds that the term “sex discrimination” only included discrimination against biological males and females at the time of enactment. ,,,,

... [T]his Court finds that the application of Bostock and the Final Rule’s definition of “sex discrimination” contradict the purpose of Title IX.... Bostock does not apply because the purpose of Title VII to prohibit discrimination in hiring is different than Title IX’s purpose to protect biological women from discrimination in education.  ...

Defendants thus seemingly use Bostock in an attempt to circumvent Congress and make major changes to the text, structure, and purpose of Title IX. Such changes are undoubtedly contrary to Title IX and contrary to the Law.....

Plaintiffs argue the Final Rule’s new broad “severe or pervasive” standard, which considers speech or other expressive conduct that “limits” a person’s ability to participate in a program to be discriminatory harassment, cannot be squared with Title IX....

While Title VII is vastly important, and the Court sees the merits in harassment standards set forth in those provisions, the Court cannot simply apply the same standard to federally funded educational institutions. The “harassment standard” created by the Final Rule is obviously contrary to Title IX, and Plaintiffs have made compelling arguments for how it can violate the free speech right of the First Amendment. ...

Because the Final Rule is a matter of both vast economic and political significance, the Court finds the enactment of this rule involves a major question pursuant to the major questions doctrine. Therefore, Congress must have given “clear statutory authorization” to the applicable agency. The Court finds that Congress did not give clear statutory authorization to this agency....

This Court finds the Final Rule violates the Spending Clause because it contains ambiguous conditions and because the Final Rule violates other constitutional provisions – free speech and free exercise. Because this Court has found the Final Rule violates the Spending Clause, there is no need to discuss the Plaintiffs’ argument that the Final Rule violates the non-delegation doctrine....

This Court further finds that the Final Rule is arbitrary and capricious because the DOE (1) failed to address relevant factors and (2) and failed to consider important aspects of the problem. 

Court Upholds Firing of Nurse with Religious Objections to Flu Vaccine

In French v. Albany Medical Center, (ND NY, June 12, 2024), a New York federal district court upheld a hospital's firing of a nurse who refused for religious reasons to receive the flu vaccine. Plaintiff based her religious exemption claim on teachings of the "Israelite" religion which she adopted in 2018. Rejecting plaintiff's claim that the hospital violated Title VII by refusing to accommodate her religious beliefs, the court said in part:

[T]he Court concludes that Plaintiff's requested accommodation was not reasonable as it was a blanket exemption request which would have allowed her to continue interacting with staff and vulnerable patients while unvaccinated. This exemption would have caused an undue hardship on Defendant.

The court also rejected plaintiff's claims of disparate treatment and retaliation, saying in part:

Plaintiff has not presented any evidence that her religion was a motivating factor in Defendant's decision to suspend and terminate her.

Florida Restrictions on Gender-Affirming Care Are Unconstitutional

In Doe v. Ladapo, (ND FL, June 11, 2024), a Florida federal district court in a 105-page opinion held unconstitutional many of the provisions in Florida law that ban gender-affirming care for minors and regulate it for adults. The court, analyzing equal protection and substantive due process challenges, said in part:

The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear….

For some, the denial that transgender identity is real—the opposition to transgender individuals and to their freedom to live their lives—is not different in kind or intensity from the animus that has attended racism and misogyny, less as time has passed but still today. And some transgender opponents invoke religion to support their position, just as some once invoked religion to support their racism or misogyny. Transgender opponents are of course free to hold their beliefs. But they are not free to discriminate against transgender individuals just for being transgender. In time, discrimination against transgender individuals will diminish, just as racism and misogyny have diminished. To paraphrase a civil-rights advocate from an earlier time, the arc of the moral universe is long, but it bends toward justice…..

This record includes overwhelming evidence that the House sponsors and a significant number of other House members were motivated by anti-transgender animus. This is clear from their own animus-based statements and from the failure of other members to call them out…..

Banning gender-affirming care for minors across the board in all circumstances, rather than appropriately regulating such care, is not sufficiently related to the legitimate state interest in safeguarding health.  

The ban on care for minors does not survive intermediate scrutiny….

[T]here are some, including the Governor and quite a few members of the Florida Legislature, who believe transgenderism—and thus gender-affirming care—is morally wrong. Enforcing this moral view is not, however, a legitimate state interest that can sustain this statute, even under rational-basis scrutiny….

[W]hether based on morals, religion, unmoored hatred, or anything else, prohibiting or impeding a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest…..

In addition to invalidating the ban on care for minors, the court also struck down various unnecessary limits placed on gender affirming care for adults.

The Hill reports on the decision and says that the state will appeal it.

Supreme Court Says Plaintiffs Lack Standing To Challenge FDA's Rules on Abortion Drugs

In Food and Drug Administration v. Alliance for Hippocratic Medicine, (Sup. Ct., June 13, 2024), the U.S. Supreme court today held unanimously that plaintiffs who are challenging the FDA’s rules on prescribing and distributing the abortion drug mifepristone lack standing to bring the lawsuit.  The Court said in part:

Here, the plaintiff doctors and medical associations are unregulated parties who seek to challenge FDA’s regulation of others. Specifically, FDA’s regulations apply to doctors prescribing mifepristone and to pregnant women taking mifepristone. But the plaintiff doctors and medical associations do not prescribe or use mifepristone. And FDA has not required the plaintiffs to do anything or to refrain from doing anything….

The plaintiffs have sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone. But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court. Here, the plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact. For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions. The plaintiffs may present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process. And they may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral processes. 

“No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.”

Justice Kavanaugh wrote the Court’s opinion, and Justice Thomas filed a concurring opinion.

AP reports on the decision.

State Funding of Only Secular Home-School Materials Upheld

In Woolard v. Thurmond, (ED CA, June 10, 2024), a California federal district court rejected challenges by parents of children enrolled in home study programs through California public charter schools to the requirement that state funds be used only for secular instructional materials. Parents contended that refusing to fund faith-based curricular materials denied families equal access to state benefits solely because of their religious nature.  The court disagreed, saying in part:

The state action of failing to provide requested religious curriculum is not an infringement on Plaintiffs’ freedom of exercise.  As confirmed in Plaintiffs’ own cited case, Carson v. Makin, states are allowed to provide a strictly secular education in its public schools....  A strictly secular education does not substantially burden the Plaintiffs’ practice of religion....

This case involves California’s laws and regulations for state funded public schools, not private schools.  There are no “public benefits” in the form of grants or otherwise that the state is excluding Plaintiffs from....

Catholic Bishops Sue EEOC Over Rules Implementing Pregnant Workers Fairness Act

Suit was filed last month in a Louisiana federal district court by the U.S. Conference of Catholic Bishops, Catholic University of America and two Louisiana Catholic dioceses challenging rules adopted in April of this year by the Equal Employment Opportunity Commission implementing the Pregnant Workers Fairness Act.  The Act requires employers to provide reasonable accommodation for employees in connection with pregnancy, childbirth or related medical conditions. At issue in the recent lawsuit is the EEOC's inclusion of abortion as a related medical condition. The complaint (full text) in United States Conference of Catholic Bishops v. Equal Employment Opportunity Commission, (WD LA, filed 5/22/2024) alleges in part:

The PWFA is not an abortion accommodation mandate. Rather, it fills a gap in federal employment law by ensuring pregnant women receive workplace accommodations to protect their pregnancies and their preborn children. Plaintiff United States Conference of Catholic Bishops (USCCB) enthusiastically supported the law’s bipartisan passage. That support reflected the PWFA’s uncontroversial and laudable purpose, which is fully consistent with the Catholic Church’s belief that all human life is imbued with innate dignity and its goal of ensuring a fairer workplace for women. But EEOC has now shoehorned a mandate that employers across the country knowingly support abortion into a statute explicitly designed to protect the health and safety of preborn babies and their mothers.  

Worse, at the same time that it expands federal law into fraught areas, EEOC also insists on nullifying the explicit religious exemption that Congress wrote into the PWFA. In the PWFA, Congress imported Title VII’s religious exemption, which expressly allows employers to make employment decisions based on sincere religious beliefs. See 42 U.S.C. § 2000gg-5(b). Of course, since the PWFA concerns only pregnancy in the workplace, this makes clear that Congress meant to allow religious exemptions from pregnancy-accommodation claims. Yet now EEOC claims the exemption bars only religious discrimination claims—which aren’t authorized by the PWFA in the first place. That renders the exception a nullity, protecting employers from PWFA claims that don’t exist.

National Review yesterday reported on the lawsuit.

Texas Must Pay FFRF $346K Attorneys' Fees by August 5

 Freedom From Religion Foundation, Inc. v. Abbott, (WD TX, June 5, 2024), is an opinion and order requiring the state of Texas to pay Freedom From Religion Foundation an award of attorneys' fees and costs totaling $346,500 that had been entered against the state in January 2024.  The award grew out of long-running litigation challenging the state's action in 2015 removing from the state Capitol building FFRF's Bill of Rights Nativity display. (See prior posting.) Texas contended that under state law, the judgment against it could only be paid through an appropriation from the state legislature which would come on September 1, 2025, at the earliest. The court said in part:

The Court finds that it is empowered to compel execution of the judgment. Given that Defendants maintain that they lack the ability to disburse these funds prior to the end of next year, it appears to the Court that “an order directing the responsible state official to satisfy the judgment out of state funds is the only reasonable way to ensure compliance with a valid federal judgment.”... While the Court acknowledges that execution of the judgment is a drastic step, the Court believes that this step is warranted to ensure that FFRF timely recovers for Defendants’ federal civil rights violation. Texas “may not successfully hide behind state procedural shields to avoid the consequences of a valid district court judgment effectuating an appropriate § 1988 award.” 

The court ordered this payment to be made by August 5, 2024. It also allowed FFRF to recover for attorneys' fees and costs incurred in enforcing payment of the prior award.

Recent Articles of Interest

 From SSRN:

• Stephen E. Sachs, Good and Evil in the American Founding: The 2023 Vaughan Lecture on America's Founding Principles, (Harvard Journal of Law and Public Policy, Forthcoming).
• Jonathan Crowe, Natural Law with and without God, ((2024) 4 Australian Journal of Law and Religion 17).
• Jamie R. Abrams & Amanda Potts, The Rhetoric of Abortion in Amicus Briefs, (June 03, 2024).
• Brannon P. Denning, Privacy and Autonomy Post-Dobbs, (May 05, 2023).
• Kerry L. Macintosh, Dobbs, Abortion Laws, and in Vitro Fertilization, (Journal of Health Care Law & Policy, Vol. 26, No. 1, 2023).
• Scott Altman, Discrimination-Free Zones and Free-to-Discriminate Zones: Where Should Discrimination Laws Apply?, (May 31, 2024).
• Celia Parry, Strange Bedfellows: Guardians for Fetuses and Future Generations, (May 31, 2024).

From SSRN (Non-U.S. Law):

• Clark B. Lombardi, Islam and Constitutional Law: Insights for the Emerging Field of Buddhist Constitutional Law, (Chapter 19, Buddhism and Comparative Constitutional Law (Tom Ginsburg & Benjamin Schonthal, eds, 2022).
• Rohan Mehrotra, Hindu Legal Traditions and Conceptions of State Mechanisms and their impact on the Modern Indian Constitutionalism, (Kanpur Philosophers Journal, Vol. 10, Issue. 1, (June 2023), pp. 165-169).
• M. Mohsin Alam Bhat, Constitutional Citizenship in India: Contours and Contradictions, (The Cambridge Companion to the Constitution of India (2024)).
• Shamila Dawood, Married Women Property Rights under Muslim Marriage and Divorce Act of Sri Lanka: A Critical Analysis, ATSK Journal of Law, Volume 1, Issue 1, Article 4, 33-41 (2024).

From SmartCILP:

• Symposium on "The Racial Muslim: When Racism Quashes Religious Freedom", 50 UC Law Constitutional Quarterly, Issue 2 (2023).
• Jonathan C. Augustine, And Who Is My Neighbor?: A Faith-Based Argument for Immigration Policy Reform in Welcoming Undocumented Refugees, 66 Howard Law Journal 439-474 (2023).
• Justin Collings & Anna Bryner, Defining Religion and Accommodating Religious Exercise, 99 Indiana Law Journal 515-562 (2024).

5th Circuit Stays Contempt Order Requiring 3 Attorneys Take Religious Liberty Training

In Carter v. Local 556, Transport Workers Union of America, (5th Cir., June 7, 2024), the U.S. 5th Circuit Court of Appeals granted a stay pending appeal of a controversial contempt sanction imposed by a Texas federal district court against three attorneys for Southwest Airlines. (See prior posting.) Southwest had failed to adequately comply with a remedial Order imposed on it for firing a flight attendant because of her social media posts and private messaging featuring aborted fetuses to illustrate her religious objections to abortion.  The district court, among other things, ordered that the attorneys responsible for non-compliance with the prior Order attend at least 8 hours of religious liberty training conducted by the Christian legal non-profit Alliance Defending Freedom. In staying the contempt sanction, the Court of Appeals said in part:

[T]here is a strong likelihood that the contempt order exceeded the district court’s civil contempt authority....

Civil contempt sanctions are “remedial” and “designed to compel future compliance with a court order” by either “coerc[ing] the defendant into compliance with the court’s order” or “compensat[ing] the complainant for losses sustained” as a result of the noncompliance.... Criminal contempt sanctions, by contrast, are used to “punish defiance of the court and deter similar actions.”... Generally, “criminal [contempt] penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings.”...

At bottom, it appears that the district court sought, at least in part, to punish Southwest for what the district court viewed as conduct flouting its holding that Southwest had violated Title VII. But its punitive sanctions likely exceed the scope of the court’s civil-contempt authority.

Law dork reports on the decision.