9th Circuit Hears Oral Arguments on Requiring Adoptive Parents to Support Gender Identity of Adoptees

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments (video of full oral arguments) in Bates v. Pakseresht. In the case, an Oregon federal district court rejected plaintiff's free exercise and free speech challenges to the state's denial of her application to be certified to adopt children through the Oregon Department of Human Services.  Plaintiff was denied certification because, consistent with her Christian religious beliefs, she would not agree in advance to support an adoptive child's sexual orientation, gender identity, and gender expression. (See prior posting.) Oregon Capital Chronicle reports on the oral arguments.

Kansas Supreme Court Invalidates Ban on D&E Abortions, Abortion Clinic Regulations

In Hodes & Nauser MDs, P.A. v. Kobach, (KS Sup. Ct., July 5, 2024), the Kansas Supreme Court, in a 5-1 decision, held that a 2015 statute that bans (except in limited circumstances) so-called "dismemberment abortions" violates the Kansas state constitution. The court said in part:

S.B. 95 effectively bans a common method of second-trimester abortion called Dilation and Evacuation except when a D & E is "necessary to preserve the life of the pregnant women" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman."...

The State devoted much of its brief to inviting us to reverse our earlier ruling in this case that the Kansas Constitution protects a right to abortion. We decline the invitation....

The State has not carried its burden to establish S.B. 95 is narrowly tailored to furthering any compelling interest.

Justice Wilson filed a concurring opinion, saying in part:

I write separately because I believe S.B. 95 is unconstitutional, though for a different reason than the majority. In my view, this purported law is unconstitutionally vague, leaving a doctor vulnerable to criminal culpability, while providing dubious notice and insufficient explanation to the doctor of what conduct is criminalized. Thus, prosecutors and juries determine retroactively when and how S.B. 95's rules are violated.

Justice Stegall dissented, saying in part:

First, it is noteworthy that the majority cannot bring itself to acknowledge the government's compelling interest in unborn human life. Yes, the majority maneuvers around this problem by skipping it in favor of its narrow tailoring analysis. But the truth is, the majority doesn't answer this question because it is so decidedly troublesome to the majority's new section 1 regime. For the majority, an interest in protecting unborn life— including the dignity of that life—is only "aspirational" with "many nuances and facets" that have "potentially far-reaching precedential effect."...  For those unfamiliar with legalese, this translates to, "We don't want to tie our hands with such inconveniences."

In a second 5-1 decision in Hodes & Nauser, MDs. P.A. v. Stanek, (KS Sup. Ct., July 5, 2024), the Kansas Supreme Court, in majority and dissenting opinions covering 114 pages, struck down "a series of statutes and implementing regulations ... relating to licensure of abortion provider facilities." The court said in part:

... [T]he State failed to meet its evidentiary burden to show the Challenged Laws further its identified compelling interest in protecting maternal health and regulating the medical profession as it relates to maternal health. Without this showing, the Challenged Laws do not survive strict scrutiny and are constitutionally infirm. We decline the State's request to sever the unconstitutional licensure requirements because the State failed to meet its burden to show severability is proper under applicable Kansas law. Finally, we deem it unnecessary to address the district court's finding of an equal protection violation because we are affirming the district court's decision on grounds that the State failed to satisfy its burden to show the Challenged Laws further a compelling state interest....

Justice Rosen and Justice Biles each filed a concurring opinion.

Justice Wilson filed a concurring opinion, saying in part:

... I am duty bound to follow the clear and essential path illuminated by our precedent. This is necessary to protect the stability, predictability, and trust in our legal system. My decision to do so is further buttressed by the people's vote on this very matter, which can be interpreted as a repudiation of legislative attempts to eliminate the core holdings of Hodes I—holdings which survive today's confusing and troubling revisions.

Justice Stegall filed a dissenting opinion, saying in part:

The saga of this court's section 1 jurisprudence has now taken its bizarre—but predicted—turn. Recall I wrote at the conclusion of my lengthy dissent in Hodes I that a legal regime of unrestricted access to abortion is now "the judicially preferred policy tail wagging the structure of government dog" and, as such, every rule and even judicial coherence and consistency will "give way, at every turn, to the favored policy." ... Should proof of this claim be required, one need look no further than the pudding of today's decision.... The betrayal of this court's promise of neutral, uniform, and rational constitutional adjudication is as far-reaching as it is audacious—and its damaging impact on this institution's legitimacy will be felt for years to come.

UPI reports on the decision.

 

Christian Released-Time Education Provider Sues Foe for Copyright Infringement

LifeWise, Inc. is a Christian nonprofit organization that provides released-time religious education to public school students where state law permits. It uses a copyrighted curriculum which it has developed.  Last week it filed a copyright infringement suit in an Indiana federal district court against Fort Wayne parent Zachary Parrish who was a creator of a Facebook group and a website opposing use of the LifeWise curriculum.  Parrish's website contends that "Lifewise Academy is spreading Evangelical Christianity, Purity Culture, Christian Nationalism, homophobic beliefs, transphobia, and hateful rhetoric to the youngest of our children."  The complaint (full text) in LifeWise, Inc. v. Parish, (ND IN, filed 7/2/2024), alleges in part:

30. ... Mr. Parrish signed up online to volunteer for LifeWise. 

31. ... Mr. Parrish does not support LifeWise’s mission. Instead, his goal was to gather information and internal documents with the hope of publishing information online which might harm LifeWise’s reputation and galvanize parents to oppose local LifeWise Academy chapters in their communities. 

32. ... [A]fter submitting his fraudulent volunteer application, Mr. Parrish improperly gained access to LifeWise’s information storage systems, downloaded internal LifeWise documents, and posted them to his Website. He also improperly obtained and posted a digital copy of the entire LifeWise Curriculum.

33. On April 9, 2024, LifeWise’s attorney sent Mr. Parrish a cease and desist letter informing him of his infringement and requesting he remove LifeWise’s internal documents, which are currently unregistered works, from the Website. 

34. Mr. Parrish responded by emailing a meme stating: “it’s called fair use bitch.”

WOSU Public Media and Cleveland.com report on the lawsuit.

Claims That College Encouraged Jewish Plaintiffs to File Antisemitism Claims Are Dismissed

As previously reported, five Orthodox Jewish faculty members at New York's Kingsborough Community College are suing the school, the faculty union and various faculty members asserting religious hostile work environment and retaliation claims. Two of the faculty member defendants in turn filed cross claims against the school (which is part of City University of New York) alleging breach of contract and First Amendment violations. They alleged that the school was complicit with plaintiffs in attempting to retaliate against them for their expression of anti-Israel views. In Lax v. City University of New York, (Kings Cty. NY Sup. Ct., July 5, 2024), a New York state trial court dismissed the cross claims. The court said that cross claimants had not alleged any retaliatory animus or adverse action taken by the school. The court said in part:

CUNY, as a governmental entity, cannot be held liable for failing to prevent plaintiffs from allegedly violating Wetzel and Perea's right to free speech since CUNY was not charged with any affirmative duty to silence plaintiffs regarding their complaints of discrimination and anti-Semitism....

Having an anti-Israel political agenda is not a protected group under the NYSHRL or the NYCHRL....

... Wetzel and Perea have not alleged that CUNY instigated or encouraged plaintiffs to file their EEOC complaints or to otherwise accuse them of anti-Semitism. 

--[CORRECTED] 

[Thanks to Volokh Conspiracy for the lead.] 

Mohamed Elsanousi Appointed to USCIRF

On June 26, President Biden announced his appointment of Dr. Mohamed Elsanousi as a member of the United States Commission on International Religious Freedom. Dr. Elsanousi is Executive Director of the Network for Religious and Traditional Peacemakers. He was a founder of Faiths4Vaccines which promoted equitable distribution of the Covid vaccine and combatted vaccine hesitancy. According to the organization's website, he holds a bachelor’s degree in Shariah and Law from Islamabad, Pakistan's International Islamic University, an LL.M. and a Ph.D from Indiana University School of Law, as well as a graduate diploma in philanthropic studies from the Indiana University Center on Philanthropy. USCIRF's announcement of his appointment says in part:

Elsanousi was the Principal Coordinator for developing the standards and protocols for safeguarding the rights of Christian, Jewish, and other religious minorities in Muslim-majority communities. His efforts in this role led to the adoption of the Marrakech Declaration, the most recognized Islamic theological document advocating for improved religious freedom.

Recent Articles of Interest

 From SSRN:

• Kyle Velte, The Supreme Court's Gaslight Docket, (June 28, 2024).
• Stephanie H. Barclay, The Religion Clauses After Kennedy v. Bremerton School District, 108 Iowa L. Rev. 2097 (2023).
• Kathleen Brady, Catholic Liberalism and the Liberal Tradition, (June 11, 2023).
• Sophia Palumbo, Preserving the Sacred Medicine: Why Peyote Should Be Excluded from Entheogenic Plant Decriminalization Efforts, (Ohio State Legal Studies Research Paper No. 862 (2024)).
• Felice Batlan, The Displaced Persons Act of 1948 and Home-Grown Antisemitism, (April 01, 2024).
• Reva B. Siegel & Mary Ziegler, Abortion's New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs and the 2023 Term, (Yale Law School, Public Law Research Paper (July 1, 2024).
• Peter J. Mazzacano, From Covenant to Compact to Contract: The Legal Transplantation of Puritan Jurisprudence to America, (A Civil Society with no Hierarchy, Bădescu & Livni (eds.) (2023)).

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

• Mohammad Sarim, Re-Smothering of India's Independence: A study about Discriminated Indian Muslims, (May 27, 2024).
• Kaushal Singh, Rethinking Secularism: An Inquiry into its Viability and Adaptation in the Indian Context, (April 23, 2024).
• Yohannes Eneyew Ayalew & Karin Frodé, Regulating Online Hate Speech in Ethiopia Through International Human Rights Standards: (Infra)structural Challenges, (December 15, 2023).

From SmartCILP:

• Tracy Hester, Ecoworship and Federal Environmental Law, 48 Columbia Journal of Environmental Law 311-365 (2023).
• Mara Poulsen, Comment. I Will Multiply Thy Sorrow and Thy Conception: Abortion as a Crime of Moral Turpitude, 96 Temple Law Review 95-134 (2023).

Two Additional Courts Enjoin Enforcement of New Title IX Rules

In addition to the nationwide preliminary injunction against enforcement of the Department of Education's new Title IX rules on transgender discrimination (see prior posting), two other federal district court last week issued more geographically limited preliminary injunctions against enforcement of the same rules. In State of Florida v. Department of Health and Human Services, (MD FL, July 3, 2024),  a Florida federal district court enjoined enforcement within Florida, saying in part:

HHS and the Final Rule interpret Title IX, and hence section 1557, to prohibit discrimination based on “gender identity.” 89 Fed. Reg. at 37,699 (45 C.F.R. § 92.101(a)(2)). The Final Rule is stillborn and a nullity if Title IX does not prohibit discrimination on the basis of “gender identity.” The Eleventh Circuit has spoken on this point, clearly: Title IX does not address discrimination on the basis of gender identity. Adams v. Sch. Bd. of St. John’s Cnty., 57 F. 4th 791, 812–15 (11th Cir. 2022) (en banc). Frankly, this ends the issue—the new Rule appears to be a dead letter in the Eleventh Circuit.

In State of Kansas v. U.S. Department of Education, (D KS, July 2, 2024), a Kansas federal district court issued a preliminary injunction against enforcement of the new rules in Kansas, Alaska, Utah and Wyoming, saying in part:

... [T]he purpose of Title IX was to protect “biological women from discrimination in education[;] [s]uch purpose makes it difficult to sincerely argue that, at the time of enactment, ‘discrimination on the basis of sex’ included gender identity, sex stereotypes, sexual orientation, or sex characteristics.”... The DoE’s reinterpretation of Title IX to place gender identity on equal footing with (or in some instances arguably stronger footing than) biological sex would subvert Congress’ goals of protecting biological women in education....

... [T]he court finds that the Final Rule involves issues of both vast economic and political significance and therefore involves a major question.... As such, Congress must have given the agency “clear statutory authorization” to promulgate such a Final Rule.....The court finds that Congress did not give such clear statutory authorization to the DoE....

... [T]he Final Rule violates the Spending Clause because it introduces conditions for spending that were not unambiguously clear in Title IX....

The court finds that Plaintiffs have shown that the Final Rule violates he First Amendment by chilling speech through vague and overbroad language.....

 [T]he court finds that the Final Rule is arbitrary and capricious because it offers an implausible explanation for agency action, is a sharp departure from prior action without a reasonable explanation, and failed to consider important interests as discussed herein.

Arizona Governor Vetoes Bill That Would Have Required Equal Insurance Coverage and Access for Gender Detransitioning

On June 18, Arizona Governor Katie Hobbs vetoed (full text of veto letter) vetoed Senate Bill 1151 (full text) that would have required health insurers that cover gender transition procedures to also provide coverage for gender detransition procedures. It would also have required physicians and hospitals that provide gender transition procedures to provide or pay for gender detransition procedures. It also would have required insurance companies to report data to the state (without identifying information on patients) on detransition claims. Governor Hobbs in her veto letter said that the bill is unnecessary and would create privacy risks for patients. Catholic News Agency reported on the Governor's veto, quoting many who disapproved of her action.

Court Grants Nationwide Injunction Barring Extensiion of Title IX To Gender Identity Discrimination

In State of Tennessee v. Becerra, (SD MS, July 3, 2024), in a suit brought by 15 states a Mississippi federal district court issued a nationwide preliminary injunction barring the Department of Education from enforcing its new rules under Title IX insofar as they define sex discrimination as including discrimination on the basis of gender identity. The court said in part:

The Supreme Court recently held that agencies are no longer entitled to deference pursuant to Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.... because Chevron “allow[ed] agencies to change course even when Congress [had] given them no authority to do so.” Loper Bright Enters. v. Raimondo,....

The Supreme Court further held that “statutes, no matter how impenetrable, do — in fact, must — have a single, best meaning....

In summary, the Court has found no basis for applying Bostock’s Title VII analysis to Section 1557’s incorporation of Title IX. HHS acted unreasonably when it relied on Bostock’s analysis in order to conflate the phrase “on the basis of sex” with the phrase “on the basis of gender identity.”...

... [T]his Court cannot accept the suggestion that Congress, with a “clear voice,” adopted an ambiguous or evolving definition of “sex” when it acted to promote educational opportunities for women in 1972.

Mississippi Today reports on the decision.

NY Sanitation Worker Can Move Ahead on Failure To Accommodate Anti-Vax Beliefs

Decisions on suits by individuals who were denied religious exemptions from now-rescinded Covid vaccine mandates are still being issued by the courts.  In Rizzo v. New York City Department of Sanitation, (SD NY, July 2, 2024), a New York federal district court refused to dismiss a Title VII failure to accommodate claim (as well as similar state-law and local-law claims) brought by a New York City sanitation worker. The court rejected the city's arguments that the worker's objections were based on conscience, not religion. It also rejected, at least at this stage of the litigation, the city's argument that accommodation would impose an undue burden on the city.  The court also allowed plaintiff to move forward on his claim that the city failed to engage in cooperative dialogue as required by the New York City Human Rights Law.  However, the court dismissed plaintiff's Title VII disparate impact claim and his 1st Amendment Free Exercise claim.

Court Rejects Texas AG's Challenge To Catholic Agency Assisting Migrants

 As previously reported, a legal battle has been underway between Annunciation House, a Catholic agency serving migrants and refugees in El Paso, and Texas Attorney General Ken Paxton who accuses the agency of sheltering migrants who have entered the country illegally. This week the Attorney General failed in his efforts to close down Annunciation House.  In Annunciation House, Inc. v. Paxton (I), (TX Dist. Ct., July 1, 2024), a Texas state trial court held that Texas statutes which bar harboring migrants to induce them to stay illegally in the U.S. are pre-empted by federal law and cannot be used as the basis for a quo warranto action to revoke the agency's registration to operate in Texas. The court said in part:

The State’s proposed counterclaim in the nature of quo warranto violates the Texas Religious Freedom Restoration Act by substantially burdening Annunciation House’s free exercise of religion and failing to use the “least restrictive means” of securing compliance with the law.

In Annunciation House, Inc. v. Paxton (II), (TX Dist. Ct., July 1, 2024), the court dismissed the Attorney General's suit against Annunciation House, saying in part:

The record before this Court makes clear that the Texas Attorney General’s use of the request to examine documents from Annunciation House was a pretext to justify its harassment of Annunciation House employees and the persons seeking refuge.

El Paso Times reports on the case.

Belgian Court Fines Catholic Archbishop and Cardinal for Denying Woman Clergy Training

The Pillar and Catholic News Agency report that a Belgian civil court has fined a Cardinal and an Archbishop each 1500 Euros for refusing to allow a woman to register for training as a deacon in the Catholic Church. Article 10 of Belgium's Constitution provides that "Equality between women and men is guaranteed." In Belgium, the state pays the salaries of clergy, but the Catholic Church reserves holy orders to baptized men. While the court held that the Church should have admitted Veer Dusauchoit for training, it did not address whether the Church would later be required to ordain her.

Alaska Supreme Court Rejects Facial Challenge To Law Allowing State Reimbursement to Home Schoolers For Materials

In State of Alaska, Department of Education & Early Development v. Alexander, (AK Sup. Ct., June 28, 2024), the Alaska Supreme Court refused to hold unconstitutional on its face a state statute that permits school districts to approve an allotment of funds to families to purchase educational materials and services for correspondence study programs from public, private or religious organizations. Plaintiffs contended that the law violates a provision in the Alaska Constitution barring the use of public funds for the direct benefit of any religious or other private educational institution. The Supreme Court said that there are some clearly constitutional applications of the statute, so a facial challenge does not succeed. It added:

Under AS 14.13.300-.310 it is school districts, not the State, that design students’ individual learning plans and authorize particular uses of allotment funds to purchase services and materials in connection with those plans. For this reason, Alexander’s claim that certain uses of allotment funds are unconstitutional cannot proceed without joining a school district that has authorized those uses of allotment funds.

The superior court rejected this argument, which was error. We therefore vacate the court’s denial of the State’s motion to dismiss Alexander’s as-applied challenge and remand for further proceedings. To proceed with an as-applied challenge on remand, Alexander must decide which particular uses of allotments he believes are unconstitutional and then identify and join the school district or districts that authorized that spending.

Alaska Watchman reports on the decision.

Jewish Women Lack Standing in Religious Freedom Challenge to Kentucky Abortion Restrictions

In Sobel v. Cameron, (KY Cir. Ct., June 28, 2024), plaintiffs, three Jewish women, alleged, among other things, that the lack of exceptions for complications during pregnancy and lethal fetal anomalies in Kentucky's restrictive abortion laws impinge on their willingness to follow their religious obligations to expand their families in a manner that does not jeopardize their health or the health of their unborn children. Plaintiffs say that "In Judaism, having children is considered a blessing, and the commandment to be fruitful and multiply is paramount." Plaintiffs alleged that the abortion statutes are unconstitutionally vague, violate the Kentucky Religious Freedom Restoration Act and reflect sectarian Christian views that denigrate Jewish practice. A Kentucky state trial court dismissed the case, saying in part:

... [T]he alleged injuries of the three Plaintiffs are hypothetical as none are currently pregnant or undergoing IVF at the present time. Accordingly, the Court simply cannot find that the plaintiffs have shown "the existence of an actual controversy respecting justiciable questions which is a required condition precedent for a declaratory judgment action.... Therefore, the Court must conclude that the Plaintiffs here lack standing to proceed in this action.

NPR reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Robert C. Blitt, Agent of Russian Interests Abroad: Assessing the Moscow Patriarchate’s Activity in the Balkans and Beyond, (27(2) Gonzaga Journal of International Law 57, Forthcoming).
• Elizabeth Sepper, Crisis of Conscience in Post-Roe America, (25 J. of Contemp. Legal Issues 67 (2024)).
• Sahar F. Aziz, Racing Religion in the Palestine-Israel Discourse, (May 20, 2024).
• Netta Barak Corren, Cleaning the Mess of 303 Creative v. Elenis, (Notre Dame Law Review, Forthcoming).
• Mark V. Tushnet, Hate Speech, (May 30, 2024).
• Itay Ravid & Jonathan Zandberg, The Business of Abortion: Access to Capital Post Dobbs, (75(4) UC L. J. 977 (2024)).
• Daniel Del Gobbo, Reckoning with Queer History: The Canadian 'LGBT Purge' Case and the Limits of Forgiveness, (Forthcoming in (2025) 62:1 Osgoode Hall Law Journal).
• Andrew M. Koppelman, The Ugly Rhetoric of Dobbs, or, Why Jack Balkin is History, (William & Mary Bill of Rights Journal (Forthcoming)).
• Christopher R. Green, Moral Reality as a Guide to Original Meaning: In Defense of United States v. Fisher, (Journal of Christian Legal Thought, Volume 14, no. 1, pp. 35-43).
• Trace Maddox, “No Superior But God”: History, Post Presidential Immunity, and the Intent of the Framers, (81 Wash. & Lee L. Rev. Online 333 (2024)).

From SmartCILP:

• Muhammad Ahmad Munir & Brian Wright, Reshaping Insanity in Pakistani Law: The Case of Safia Bano, 49 American Journal of Law & Medicine 301-313 (2023).
•  Anne Alstott, Melisa Olgun, Henry Robinson & Meredithe McNamara, "Demons and Imps": Misinformation and Religious Pseudoscience in State Anti-Transgender Laws, 35 Yale Journal of Law & Feminism 223-288 (2024).

Justice of the Peace's Challenge to Reprimand for Refusing Same-Sex Marriage Officiation Is Remanded

 In Hensley v. State Commission on Judicial Conduct, (TX Sup. Ct., June 28, 2024), the Texas Supreme Court, in an 8-1 decision, held that a Justice of the Peace may move ahead with her suit brought against members of the Judicial Conduct Commission who issued a formal warning to the Justice of the Peace because of her refusal to perform same-sex marriages. The Justice of the Peace would perform marriages for heterosexual couples, but referred same-sex couples to others that would perform a ceremony for them. She contended that the Commissioners' actions violated the Texas Religious Freedom Restoration Act as well as her free speech rights. The court held that there was no requirement to exhaust administrative remedies before filing suit, nor was the suit against individual commissioners (as opposed to the Commission itself) barred by sovereign immunity.

Justice Blacklock, joined by Justice Devine, filed a concurring opinion, agreeing that as a procedural matter the case can move forward, but said that the Supreme Court should have reached the substantive claims and dismissed them.  He said in part:

There are no victims. There was no crime. We have a Christian justice of the peace in a small Texas city doing her best to navigate her duties to God and to the public. We have no real people even claiming to be harmed by her actions. We certainly have no same-sex couples denied a marriage—or anything even close to that. There is no good reason for this case to exist.

But it does exist. It exists because of the Judicial Conduct Commission, which veered far outside its proper lane by self-initiating this victimless but politically and emotionally charged case. The Commission misinterpreted the Code of Judicial Conduct and violated Judge Hensley’s religious-freedom rights by publicly sanctioning her and by continuing to hold over her head the threat of a future, harsher sanction should she resume her marriage-referral policy. To her credit, Judge Hensley did not capitulate. And for the last several years, the Commission has doubled down again and again on this misbegotten case, all the way to the Texas Supreme Court.

Justice Young filed a brief concurring opinion. Justice Lehrmann filed a dissenting opinion contending that plaintiff failed to exhaust her administrative remedies before filing suit.

First Liberty Institute issued a press release announcing the decision.

Iowa Supreme Court Allows 6-Week Abortion Ban to Go into Effect

In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Sup.Ct., June 28, 2024), the Iowa Supreme Court in a 4-3 decision reversed the grant of a temporary injunction against Iowa's 6-week fetal heartbeat abortion ban. The Court said in part:

We have previously held that abortion is not a fundamental right under the Iowa Constitution....  Applying our established tiers of scrutiny, we hold that abortion restrictions alleged to violate the due process clause are subject to the rational basis test. Employing that test here, we conclude that the fetal heartbeat statute is rationally related to the state’s legitimate interest in protecting unborn life. We thus reverse the district court order entering the temporary injunction blocking enforcement of the fetal heartbeat statute....

Chief Justice Christensen, joined by Justices Waterman and Mansfield, filed a dissenting opinion, saying in part:

Today, our court’s majority strips Iowa women of their bodily autonomy by holding that there is no fundamental right to terminate a pregnancy under our state constitution. I cannot stand by this decision. The majority’s rigid approach relies heavily on the male-dominated history and traditions of the 1800s, all the while ignoring how far women’s rights have come since the Civil War era. It is a bold assumption to think that the drafters of our state constitution intended for their interpretation to stand still while we move forward as a society. Instead, we should interpret our constitution through a modern lens that recognizes how our lives have changed with the passage of time.

Justice Mansfield, joined by Chief Justice Christensen and Justice Waterman, filed a dissenting opinion saying in part:

I believe that subjecting a near-total ban on abortion to a rational basis test—the same test we apply to traffic cameras, and a more forgiving test than the one we apply to a law not allowing county auditors to correct defective absentee ballot applications—disserves the people of Iowa and their constitution. The liberty protected by article I, section 9 of the Iowa Constitution includes a woman’s ability to make decisions regarding her own body, just as it includes rights of procreation, parenting, and to use contraception.

Wisconsin Supreme Court: Harassment Injunction Against Anti-Abortion Protester Vacated

In Kindschy v. Aish, (WI Sup. Ct., June 27, 2024), the Wisconsin Supreme Court ordered a trial court to vacate a harassment injunction issued against an anti-abortion protester.  At issue were allegedly threatening statements made to nurse practitioner Nancy Kindschy on three different dates as she left work at a family planning clinic. For example, defendant Brian Aish warned Kindschy that she "had time to repent, that 'it won't be long before bad things will happen to you and your family,' and that 'you could get killed by a drunk driver tonight.' " The court said in part:

We conclude that the injunction is a content-based restriction on Aish's speech, and therefore complies with the First Amendment only if: (1) Aish's statements were "true threats" and he "consciously disregarded a substantial risk that his [statements] would be viewed as threatening violence;" or (2) the injunction satisfies strict scrutiny; that is, it is narrowly tailored to achieve a compelling state interest.... On the record before us, we hold that the injunction fails to satisfy either of these two standards. We therefore reverse the decision of the court of appeals and remand to the circuit court with instructions to vacate the injunction.

The court explained further:

In this case, the circuit court's harassment injunction was issued before Counterman [v. Colorado] was decided [by the U.S. Supreme Court]. The circuit court therefore did not evaluate whether Aish's statements were true threats, or whether he "consciously disregarded a substantial risk that his communications would be viewed as threatening violence." ... Because the circuit court failed to make clear findings regarding Aish's subjective mental state as it relates to his statements to Kindschy, we need not decide whether Aish's statements were true threats. Whether they were true threats or not, the injunction cannot be justified on true-threats grounds.,,,

Justice Bradley filed a concurring opinion, saying in part:

On their face, Aish's statements cannot be interpreted as true threats.

Aish uttered words of caution or warnings, not threats of violence....

More importantly, none of the three statements suggested Aish or a co-conspirator would be the one to cause any harm to Kindschy. At most, the statements suggested unaffiliated third parties could cause Kindschy harm, like a "drunk driver."

Thomas More Society issued a press release announcing the decision.

Oklahoma Education Head Requires All Schools to Incorporate the Bible into Their Curriculum

Yesterday, Oklahoma State Superintendent of Public Instruction Ryan Walters issued a Memo (full text) to all public-school superintendents in the state requiring them to incorporate the Bible into their schools' curriculum. The Memo reads in part:

Effective immediately, all Oklahoma schools are required to incorporate the Bible, which includes the Ten Commandments, as an instructional support into the curriculum across specified grade levels, e.g. grades 5 through 12....

The Bible is one of the most historically significant books and a cornerstone of Western civilization, along with the Ten Commandments. they will be referenced as an appropriate study of history, civilization, ethics, comparative religion, or the like, as well as for their substantial influence on our nation's founders and the foundational principles of our Constitution. This is not merely an educational directive but a crucial step in ensuring our students grasp the core values and historical context of our country....

Adherence to this mandate is compulsory.... 

The Department of Education also issued a press release announcing the new policy. KFOR News reports on the new policy. [Thanks to Thomas Rutledge for the lead.]

UPDATE: To implement the policy, in July 2024, the Oklahoma Department of Education issued Guidelines for Teachers.

City-Sponsored Prayer Vigil Violated Establishment Clause

In Rojas v. City of Ocala, (MD FL, June 26, 2024), a Florida federal district court held that a prayer vigil in the town square organized by the police department violated the Establishment Clause. The 2014 vigil was planned in order to encourage witnesses to a shooting spree to come forward. The court in a previous decision found that the vigil violated the Establishment Clause, but the 9th Circuit remanded the case after the U.S. Supreme Court in 2022 repudiated the Lemon test and adopted a new test for determining when there has been an Establishment Clause violation. (See prior posting.) Reflecting on the time that had passed since the vigil, the court said:

In the meantime, the Chief of Police, Greg Graham, passed away; the Mayor of Ocala at the time left office; and the Prayer Vigil (which occurred in 2014) has not been repeated. Thus, the Court inquired whether it would make sense to call it a day on this timeworn litigation. But the parties, both represented by lawyers who specialize in First Amendment religion cases, insist on going forward. And, as the Court previously awarded nominal damages, the case is not moot....  So on we go.

Reaching the conclusion that under the Supreme Court's new Establishment Clause test set out in Kennedy v. Bremerton School District there was still an Establishment Clause violation, the court said in part:

Based on the undisputed facts, the City’s involvement in conceiving, organizing, and implementing the Prayer Vigil is government sponsorship of a religious event...

... [T]he City’s support of the Prayer Vigil favored a religious viewpoint. While the Prayer Vigil was geared towards Christianity, there is some evidence that it was not limited to any one faith.... But that thin layer of neutrality is not enough to avoid an Establishment Clause violation....

Similarly, Chief Graham’s offer to connect an objector, Paul Tjaden, with organizers... is not comparable to neutrality....  Trying to achieve neutrality towards religion by inviting an atheist to speak at an event whose only purpose is prayer fails to treat the secular viewpoint with the same level of respect being provided to religious prayer.

As Kennedy commands, the Court bases its decision on a “historically sensitive understanding of the Establishment Clause”....