Court Grants Injunction to Jewish Students at UCLA Impeded by Gaza Protests

In Frankel v. Regents of the University of California, (CD CA, Aug. 13, 2024), a California federal district court issued a preliminary injunction in a suit brought by Jewish students at UCLA who were blocked from accessing portions of the campus by pro-Palestinian encampments protesting Israel's retaliation in Gaza. The court said in part:

In the year 2024, in the United States of America, in the State of California, in the City of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantee of religious freedom that it bears repeating, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. UCLA does not dispute this. Instead, UCLA claims that it has no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by third-party protesters. But under constitutional principles, UCLA may not allow services to some students when UCLA knows that other students are excluded on religious grounds, regardless of who engineered the exclusion....

Under the Court’s injunction, UCLA retains flexibility to administer the university. Specifically, the injunction does not mandate any specific policies and procedures UCLA must put in place, nor does it dictate any specific acts UCLA must take in response to campus protests. Rather, the injunction requires only that, if any part of UCLA’s ordinarily available programs, activities, and campus areas become unavailable to certain Jewish students, UCLA must stop providing those ordinarily available programs, activities, and campus areas to any students. How best to make any unavailable programs, activities, and campus areas available again is left to UCLA’s discretion.

Becket issued a press release announcing the decision.

Using Students' Preferred Pronouns Is Not Part of Teacher's Ordinary Job Duties

 In Geraghty v. Jackson Local School District Board of Education, (ND OH, Aug. 12, 2024) an Ohio federal district court ruled in part in favor of a middle-school English teacher's compelled speech and free exercise claims.  Plaintiff resigned under pressure when a school board required her against her religious beliefs to use the preferred names and pronouns of students who were socially transitioning genders. However, the court held that certain issues remain to be decided by a jury.

The court said in part:

For the school, using the students’ preferred names and pronouns carried the message that it supported its students....  And, most importantly, for the students, using their preferred names and pronouns carried the message that the speaker respected their gender identity.... 

So, the question is not whether using preferred names and pronouns was part of Geraghty’s ordinary job duties, but whether it was part of her ordinary job duties to convey (or refuse to convey) the message that those names and pronouns carried.  It was not.  Geraghty was a middle school English Language Arts teacher.... Her job was to teach English to the appropriate state standards....  It was not her job “to teach anything with regard to LGBTQ issues.”....

Under the Pickering-Connick framework, the Court asks two questions: First, was the speech at issue “a matter of public concern?”...  And second, was Geraghty’s interest in remaining silent greater than Defendants’ interest in “promoting the efficiency of the public services it performs through its employees?”...

... [W]hen Defendants compelled Geraghty to use the students’ preferred names and pronouns, they forced her to “wade[] into a matter of public concern.” ... The final question is whether Geraghty’s “interest in” remaining silent on a “matter[] of public concern” outweighs “the interest of [Defendants], as [Geraghty’s] employer, in promoting the efficiency of the public services it performs through its employees.”...

Defendants assert that they have a compelling interest that “teachers teach and do not use their position of trust and authority to impose their religious beliefs.”...

As the diametrically opposed opinions of the parties’ experts demonstrate, “the use of gender-specific titles and pronouns has produced a passionate political and social debate” in this country....  Whether use of student’s preferred names and pronouns creates a safe and supportive environment for students is a factual question a jury should decide after hearing the parties’ expert testimony. 

Accordingly, while the Court concludes that Geraghty’s compelled speech was not pursuant to her ordinary job duties, it denies the parties’ Motions for Summary Judgment as to the Pickering balancing test....

Focusing on plaintiff's free exercise claim, the court said in part:

[W]hile the District’s practice might look neutral and generally applicable, it was ill defined and provided the District a discretionary “mechanism for individualized exemptions.”... Accordingly, it must survive “the most rigorous of scrutiny.”  

9th Circuit: Ministry Has Standing to Challenge Washington Antidiscrimination Law

In Union Gospel Mission of Yakima, Washington v. Ferguson, (9th Cir., Aug. 12, 2024), the U.S. 9th Circuit Court of Appeals held that a Christian Ministry has standing to challenge the constitutionality of the Washington Law Against Discrimination insofar as it bars plaintiff from requiring all its employees to sign a statement of faith and core values.  The statement requires employees to adhere to Christian lifestyle and behavior, including Christian beliefs on marriage and sexuality. However, the court remanded the case for the trial court to consider the issue of prudential ripeness and to consider plaintiff's motion for a preliminary injunction. [Thanks to Thomas Rutledge for the lead.]

RELIGION CLAUSE IS ON A PUBLICATION BREAK FROM AUGUST 12 TO AUGUST 20. NEW POSTS WILL RETURN ON AUGUST 21.

Illinois Governor Signs 3 Bills Protecting Abortion Rights

On Aug. 7, Illinois Governor J.B. Pritzker signed HB4867 (full text) which amends the Illinois Human Rights Act to make discrimination on the basis of reproductive health decisions, including decisions relating to termination of a pregnancy, unlawful discrimination. He also signed HB 5239 (full text) that prohibits the state from assisting out-of-state officials or individuals who are seeking to impose civil or criminal liability on a person or entity for reproductive health care activity that was lawful in Illinois. And he signed HB 581 (full text) which requires hospital emergency rooms to provide stabilizing treatment including abortion when "abortion is necessary to resolve the patient's injury or acute medical condition that is liable to cause death or severe injury or serious illness." Lawndale News reports on the governor's action.

Organizations Promoting Abortion Pill Reversal Sue New York Attorney General

Three anti-abortion organizations that promote abortion-pill reversal this week filed suit in a New York federal district court against New York Attorney General Letitia James. The complaint (full text) in Summit Life Outreach Center, Inc. v. James, (WD NY, filed 8/7/2024), alleges in part:

In a blitz attack that month, James mailed boilerplate notices-of-intention-to-sue (NOIs) to eleven New York-based pregnancy help organizations (PHOs) and the nonprofit operator of the national Abortion Pill Reversal Network. The NOIs alleged (without evidence) that recipients’ truthful noncommercial statements about APR constituted commercial fraud under two state statutes....

Plaintiffs in this action, pro-life organizations whose mission is informed by their religious conviction that abortion is the killing of an innocent human being, are not parties to that state court suit. But James’ years-long campaign of intimidation against pro-lifers creates considerable “risk of catastrophic harm” that Plaintiffs could soon suffer if (and highly likely when) they are targeted by similar lawfare over their own similar pro-APR communications.... Plaintiffs indeed already are being harmed because the litigative sword of Damocles that hangs above their heads has chilled their speech and forced them to discontinue communicating the science of APR.

Plaintiffs thus are compelled to file this suit to defend their rights to free speech, free exercise of religion, and due process under the First and Fourteenth Amendments. They seek declaratory and injunctive relief, and other such relief as the Court may deem just and equitable, so they can continue speaking about APR and refocus their attention on women in need.

 Thomas More Society issued a press release announcing the lawsuit.

De Facto Exclusion of Catholic Schools From Tuition Grant Program Through Antidiscrimination Law Survives Strict Scrutiny

In St. Dominic Academy v. Makin, (D ME, Aug. 8, 2024), a Maine federal district court, in a 75-page opinion, refused to preliminarily enjoin enforcement of Maine's educational and employment antidiscrimination laws in a suit brought by a Catholic diocese, a Catholic school and a Catholic family. In 2022, the U.S. Supreme Court held that Maine could not exclude parochial schools from participating in its program that pays tuition for certain out-of-district students. While that litigation was pending, the Maine legislature amended state law to provide that schools receiving state funds could not discriminate on the basis of religion, sexual orientation or gender identity. This had the effect of excluding Catholic schools. Plaintiffs contend that this violates their free exercise rights.

The court concluded that the statute must meet strict scrutiny review because it is not a generally applicable law.  However, the court found that the statute survives struct scrutiny, saying in part:

 As a general matter, Maine’s asserted interest in eliminating discrimination within publicly funded institutions is compelling....

Furthermore, all the challenged provisions are written to prohibit only discriminatory conduct.  Under the provisions, “St. Dominic would still be free to conduct morning prayers however it wants, teach from a Catholic perspective, and promote Catholicism to the exclusion of all other religions.”... While the Plaintiffs put forth a number of policies and practices that arguably violate the challenged provisions, at this early stage—no state court has interpreted Chapter 366—it is not sufficiently clear the Act would reach any conduct that the state does not consider discriminatory.... 

Accordingly, the Court concludes that Chapter 366 survives strict scrutiny.  In reaching this result, the Court is mindful of the Supreme Court’s admonition that a “law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.” ...  However, “rare” does not mean “never.”  Based on the record before it at this preliminary stage, the Court determines that the weighty interest advanced by the Defendants and the tailoring of Chapter 366 to fit that interest support a determination that Chapter 366 is likely to survive strict scrutiny....

In reaching its conclusions, the Court has discussed and decided the difficult constitutional questions presented.  At the same time, the Court recognizes that this case poses novel constitutional issues and ... the Court has attempted to frame its opinion as a prelude to a challenge to the Court of Appeals for the First Circuit for a more authoritative ruling.

[Post corrected to accurately reflect the scoope and timing of the Maine legislation.]

Jail Guard's Required Training in Treatment of LGBTQI+ Inmates Did Not Violate His Free Exercise Rights

In Goodknight v. County of Douglas, (D OR, Aug. 6, 2024), an Oregon federal district court rejected religious discrimination claims brought by a county jail guard who objected to required LGBTQI Community Training. The training was impelled by the recently enacted federal Prison Rape Elimination Act.  According to the court:

Plaintiff alleges this Training required employees “to affirm and validate homosexual unions and the self-proclaimed ‘transgender,’ ‘non-binary,’ or ‘genderqueer’ identities of AICs and fellow employees.”...

Plaintiff concluded by confirming his believe that “PREA standards demands [sic] we deny, [sic] God, science, and the common sense verified by our very eyes. This is a Pandora’s box of perversion I refuse to help open. I appeal to you one last time, please repent of this sinful path for the sake of the county, inmates, and my fellow deputies....

Rejecting plaintiff's claims under Title VII and state law, the court said in part:

Despite Plaintiff’s attempt, intentionally or otherwise, to conflate private citizen cases with public employee cases, the fact that the dispute here concerned training regarding how Defendant processed and housed LGBTQI+ individuals—i.e., that the Training concerned how Defendant wanted Plaintiff to perform his basic job duties—demonstrates Plaintiff’s free speech claim necessarily fails. ... 

Plaintiff’s specific factual allegations, along with the Court’s own common sense, confirm that the speech here concerned nothing more than Plaintiff’s dispute with his supervisors over how to perform his job when dealing with certain AICs....

Plaintiff alleges Defendant violated his rights under the First Amendment’s Free Exercise clause when Defendant “lent it’s power to one side in a controversy over religious dogma – specifically, the controversy over whether what [sic] constitutes respectful treatment of persons who self-identify as LGBTQI+.”... This argument is meritless.  ...

Plaintiff’s attempt to conflate ‘government employers forcing their employees’ with “the government forcing its citizens’ ignores longstanding, black‐letter law recognizing that “[a] public employer ‘may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large.’”

Ohio Court Rejects Challenge to Ban on Treatment of Minors for Gender Dysphoria

In Moe v. Yost, (OH Com. Pl., Aug. 6, 2024), an Ohio state trial court held that Ohio's ban on surgical or hormonal treatment of minors for gender dysphoria does not violate the equal protection or due process clause of the 14th Amendment, or the Ohio constitution's single subject rule, due course of law clause or its Health Care Freedom Amendment. The court said in part:

25. The State of Ohio has a legitimate government interest in protecting the health and safety of its citizens.  

26. The Court finds that upon weighing the evidence received at trial, the Health Care Ban is rationally related to this interest. It is limited to minors. Moreover, the medical care banned carries with it undeniable risk and permanent outcomes.  Indeed, countries once confident in the administration of gender affirming care to minors are now reversing their position as a result of the significant inconsistencies in results and potential side effects of the care.  Thus, there can be no doubt that the Health Care Ban is neither arbitrary nor unreasonable.

The court thus vacated the temporary restraining order previously entered in the case. 

The ACLU announced that it would file an immediate appeal of the decision.

1st Circuit: Satanic Temple Loses Bid to Deliver City Council Invocation

In The Satanic Temple, Inc. v. City of Boston, (1st Cir., Aug. 6, 2024), the U.S. 1st Circuit Court of Appeals rejected arguments that the failure to invite Satanic Temple to deliver an invocation at a Boston City Council meeting violated the 1st Amendment's Establishment Clause and the free exercise clause of the Massachusetts Constitution. Individual members of Council invite invocation speakers, without any guidelines as to selection. They choose speakers based on personal relations or based on the work the speaker does in the member's district or with the member's constituents. The court said in part:

TST has not shown that any of the Boston City Councilors have chosen invocation speakers based on the Councilors' own religious preferences or biases or barred potential speakers from delivering invocations that oppose the Councilors' religious beliefs.  The record shows rather that speakers were invited based on their contributions to the Councilors' districts and to the Boston community....

The record shows that there are many neutral, non-discriminatory reasons why TST has not been invited to give an invocation, including the following.  TST does not claim to have had a personal or working relationship with any Councilor on the basis of work it has done to benefit Boston communities. ...

Chief Judge Barron filed a concurring opinion, saying in part:

The City starkly sets forth the argument that causes me concern in its brief to us on appeal.  It contends -- seemingly unabashedly -- that the Establishment Clause permits City Councilors to choose invocation speakers based on how likely the selection is to earn them votes at the ballot box from certain religious communities.... 

I suppose the City is right that using invocations to attract political support from certain religious communities does not constitute invidious religious discrimination.  But I am dubious that the Establishment Clause blesses the practice that the City describes....

Court Enjoins Enforcement Against Texas of DOE Guidance Documents on Transgender Students

In State of Texas v. Cardona, (ND TX, Aug. 5, 2024), a Texas federal district court in a 113-page opinion enjoined enforcement against Texas schools of a Notice of Interpretation, a Dear Educator Letter and a Fact Sheet ("Guidance Documents") issued by the U.S. Department of Education that interpreted Title IX's ban on sex discrimination to include discrimination on the basis of gender identity.  The court said in part:

The Guidance Documents' interpretation of "sex" and the accompanying requirement that schools treat "gender identity" the same as biological sex flouts Title IX. The Department lacks the authority to "rewrite clear statutory terms to suit its own sense of how the statute should operate," particularly in a way that undercuts a statute's purpose.... Yet this is exactly what the Guidance Documents do. By interpreting the term "sex" in Title IX to embrace "gender identity" as distinct from biological sex, the Guidance Documents are contrary to law and exceed the Department's statutory authority....

The Guidance Documents' expanded definition of "sex" are contrary to law due to violating another rule of interpretation. That is, Congress must "speak clearly when authorizing an agency to exercise powers of 'vast economic and political significance.'"... Known as the Major Questions Doctrine, it promotes the principle of statutory interpretation that courts should not assume Congress delegated questions of "deep 'economic and political significance'" unless done expressly....

Despite the Department's lack of authority, Defendants nonetheless maintain that Bostock supports the expanded definition of "sex." But this argument falls flat. Bostock stated without equivocation that its holding only applies to Title VII....

The Guidance Documents are substantively and procedurally unlawful in violation of the APA. They are substantively unlawful because the Department's purported interpretations of Title IX squarely conflict with the statute.... Additionally, the Guidance Documents are procedurally unlawful because they impose new substantive obligations on states and other regulated entities without adhering to the APA's notice-and-comment requirements—which were designed to ensure public participation....

Connecticut Supreme Court: Constitutional (But Not Statutory) Challenges to Removal of School Vaccination Religious Exemptions Barred by Sovereign Immunity

In Spillane v. Lamont, (CT Sup. Ct., July 30, 2024), the Connecticut Supreme Court in a complicated opinion held that the doctrine of sovereign immunity bars constitutional claims asserted in a class action suit by school parents against the governor, the commissioners of education and of public health, and two boards of education. Plaintiffs were challenging the legislature's removal of previously available religious exemptions from school vaccination requirements. Under Connecticut law, sovereign immunity for constitutional claims is waived only when actions for declaratory relief or an injunction allege a substantial claim that the state or a state official has violated plaintiffs' constitutional rights. Here plaintiffs did not have a substantial claim that their free exercise or equal protection rights under the federal constitution were violated, nor that their right to education under the Connecticut constitution was violated.

However, the Supreme Court agreed with the trial court that plaintiffs' statutory claim under the Connecticut Religious Freedom Restoration Act was not barred by sovereign immunity. Connecticut's RFRA waived sovereign immunity for violations and applying the Act here does not violate the principles that one legislature may not bind the authority of a later one or that enactments are presumed to repeal inconsistent portions of prior legislation.

(See prior related posting.) WTNH News reports on the decision.

Recent Articles of Interest

From SSRN:

• Mohammad Sarim, Enduring Inequality and Oppression: The Plight of Dalits within Hinduism in India (July 21, 2024).
• Denis Wieboldt, How 'Religious' is a 'Religious Employer'?: Church History and the Future of American Religious Liberty Litigation, (N.Y.U. Journal of Law and Liberty (forthcoming)).
• Myriam Caroline Hunter-Henin, Religious Expression and Exemptions in the Private Sector Workplace: Spotting Bias, (Forthcoming in Current Legal Problems (2024)).
• Richard W. Garnett, Paul J. Schierl & Stephanie Barclay, Brief of Amici Curiae Professors in Individual Members of the Medical Licensing Board of Indiana v. Anonymous Plaintiff 1, (2024).
• William M. Carter, Jr., "Trans Talk" and the First Amendment, (U. of Pittsburgh Legal Studies Research Paper No. 2024-25 (2024)).
• Karim Mussa Karim, Islamic Banking in Tanzania Products and Practices, (May 28, 2024).

From SmartCILP:

• Adnan A. Zulfiqar, Belief as Status: Premodern Islamic Law, Duties, and the Martyr Conundrum, [Abstract], 63 American Journal of Legal History 115-130 (2023).
• Melissa Vise, The Matter of Personae in Medieval Italy, [Abstract], 63 American Journal of Legal History 131-149 (2023).

Court Dismisses Title VI Suit Claiming Hostile Environment Affecting Jewish Students At MIT

In StandWithUs Center for Legal Justice v. Massachusetts Institute of Technology, (D MA, July 30, 2024), a Massachusetts federal district court dismissed a suit against MIT that alleged deliberate indifference to a hostile educational environment impacting Jewish and Israeli students in violation of Title VI of the Civil Rights Act of 1964. The court said in part:

The [complaint] compellingly depicts a campus embroiled in an internecine conflict that caused Jewish and Israeli students great anguish.  Plaintiffs frame MIT’s response to the conflict largely as one of inaction.  But the facts alleged tell a different story.  Far from sitting on its hands, MIT took steps to contain the escalating on-campus protests that, in some instances, posed a genuine threat to the welfare and safety of Jewish and Israeli students, who were at times personally victimized by the hostile demonstrators.  MIT began by suspending student protestors from non-academic activities....while suspending one of the most undisciplined of the pro-Palestine student groups.  These measures proved ineffective when, in April of 2024, protestors erected the Kresge lawn encampment.  MIT immediately warned students of impending disciplinary action, but its threat went unheeded....  When MIT’s attempt to peacefully clear the encampment proved futile, it suspended and arrested trespassing students. In hindsight, one might envision things MIT could have done differently.  Indeed, some campus administrators elsewhere ... reacted to the protests differently (and with more positive results) than MIT.  But that is not the applicable standard.  That MIT’s evolving and progressively punitive response largely tracked its increasing awareness of the hostility that demonstrators directed at Jewish and Israeli students shows that MIT did not react in a clearly unreasonable manner.

The court also dismissed conspiracy, negligence and breach of contract claims. Bloomberg Law reports on the decision.

Utah Supreme Court Upholds Preliminary Injunction Against Law Banning Most Abortions

 In Planned Parenthood Association of Utah v. State of Utah, (UT Sup. Ct., Aug. 1, 2024), the Utah Supreme Court, in a 4-1 decision, affirmed a trial court's entry of a preliminary injunction against enforcement of SB174, a trigger law that prohibits all abortions except for death or substantial bodily harm of the mother, lethal defect or brain abnormality of the fetus, or the mother was pregnant as a result of rape or incest. The state Supreme Court said in part:

In re J.P. discussed, among other [state constitutional] rights, the right to marry the person of one’s choosing and the right to establish a home.... The commonality these rights share is not a child, but the right to make certain intimate decisions about one’s life free from government intrusion. At this point in the litigation, we cannot say whether a restriction on the ability to choose to have an abortion infringes the rights we recognized in In re J.P., but there are serious questions regarding the scope of those rights that merit further litigation....

PPAU has standing to press its claims and the claims of its patients. 

The district court did not err when it concluded that PPAU had raised serious issues about the constitutionality of SB 174. The court did not abuse its discretion when it concluded that PPAU and its patients would be irreparably harmed without the injunction. Likewise, the court did not abuse its discretion when it concluded that the balance of harms tipped in favor of enjoining SB 174 while the parties litigate its constitutionality. Nor did the court act outside the bounds of its discretion when it concluded that the injunction would not be adverse to the public interest.

Chief Justice Durrant filed a dissenting opinion, contended that Planned Parenthood lacked standing to bring the lawsuit.

Utah News Dispatch reports on the decision.

Delaware Supreme Court Dismisses Suits Challenging Prior Covid Restrictions on Houses of Worship

 In In re Covid-Related Restrictions on Religious Services, (DE Sup. Ct., Aug. 1, 2024), the Delaware Supreme Court upheld the dismissal by two lower courts of challenges to restrictions on houses of worship imposed by orders of Delaware's governor during the early stages of the Covid pandemic. Plaintiffs filed suit in the Chancery Court over 18 months after the restrictions were lifted seeking an injunction, and when that was rejected, filed suit in Superior Court seeking damages and a declaratory judgment. The Delaware Supreme Court said in part:

Plaintiffs could not demonstrate reasonable apprehension of future conduct.  As the Court of Chancery noted below, “[a]lthough it is true that the virus continues to circulate and mutate, the possibility of a future surge, much less one that will necessitate emergency measures on par with what the world experienced in the first half of 2020, is speculative at best.”  Appellants do not confront the speculative nature of the future threat they allege, and instead invoke a generalized refrain that any restriction on their religious freedom causes irreparable harm.  This argument, such that it is, does not address the Court of Chancery’s analysis or carry Appellants’ burden to establish subject matter jurisdiction.  The importance of Appellants’ constitutional rights is not disputed, but it also is not dispositive.  The fact remains that, by the time Appellants filed suit, the Challenged Restrictions had been lifted, the Governor had entered into a binding agreement not to impose future restrictions targeting Houses of Worship, and the apprehension of a future pandemic and conditions like those of the early days of the emergency was hypothetical and speculative.  This Court “decline[s] to render an advisory opinion on a hypothetical scenario.”...

... [T]he Superior Court correctly held that Appellants’ injury could not be redressed through a prospective declaratory judgment.  In much the same way that Appellants’ irreparable harm argument crumbled because the Challenged Restrictions no longer were in effect and any future action imposing similar restrictions was speculative, the declaratory judgment sought in the Superior Court would not alter the status quo.  Moreover, Appellants’ constitutional rights would not be restored or further protected by declaratory relief because the complained-of harm had long since ceased and the threat of future harm was speculative....

The Delaware Supreme Court also concluded that a damage action against the Governor was barred by the Delaware State Tort Claims Act and qualified immunity.

Jury Must Decide Whether School Board Had Religious Animus

In Pines Church v. Hermon School Department, (D ME, July 31, 2024), a Maine federal district court denied both parties' motions for summary judgment.  Pines Church sought to enter a 12-month lease to use space at Hermon High School for Sunday religious services.  The School Committee offered only a month-to-month lease. Plaintiffs claimed that the denial of a long-term lease was motivated by animus against their orthodox Christian religious beliefs. The court said in part:

Plaintiffs rely on the relatively blatant bias and the inferences that arise from the interrogatories posed by one Committee member who demanded to know from Pastor Gioia the Church’s “position” on a spate of religious, political, and cultural flashpoints before evaluating whether to extend a lease on behalf of a publicly funded school.  Plaintiffs also rely on a somewhat more tepid bias, sanitized through fear-of-association comments by others, along the lines that association with the Church may not fit with the Committee’s “goals” and may therefore create a “negative image” by not comporting with the School Department’s “mission” and evidently its own beliefs.  This evidence certainly is probative of Plaintiffs’ position that the School Committee’s refusal to offer Plaintiffs a lease was motivated by unconstitutional considerations, such as animus toward the Church’s orthodox religious beliefs.  For its part, the School Department counters that the School Committee’s decision, save for the one Committee member’s bill of particulars put to the Pastor, simply resulted from humdrum, benign space and cost concerns, although that narrative is far from conclusive based on the summary judgment record.  These competing characterizations of the Committee’s motivations form the most conspicuous reason I deny summary judgment to the parties in favor of a jury trial.

Trans Woman Fired by Liberty University Sues

Suit was filed this week in a Virginia federal district court against Liberty University by a transgender woman who was fired from her position as an Apprentice at the IT Help Desk because she was undergoing gender transition treatment. The complaint (full text) in Zinski v. Liberty University, Inc., (WD VA, filed 7/29/2024), alleges that terminating plaintiff's employment violated Title VII's ban on sex discrimination. A press release from ACLU of Virginia elaborates on plaintiff's dismissal, saying in part:

Liberty University officials read a termination notice aloud to Ellenor citing “denying biological and chromosomal sex assigned at birth” as the basis for her termination, stating a conflict with Liberty’s Doctrinal Statement that names “denial of birth sex by self-identification with a different gender” as a “sinful act prohibited by God.” 

6th Circuit: School District's Ban on Students Calling Others by Non-Preferred Pronouns Does Not Violate 1st Amendment

In Parents Defending Education v. Olentangy Local School District, (6th Cir., July 29, 2024), the U.S. 6th Circuit Court of Appeals in a 2-1 decision rejected free speech challenges to a school district's anti-bullying and anti-harassment policies that prohibit students from using pronouns that are inconsistent with another student’s gender identity if the use amounts to harassment. The majority said in part:

... Parent A-D’s children intend to communicate a message by using non-preferred pronouns to refer to their classmates.... [T]he single thing on which the parties agree is that pronouns matter.  That is true for transgender students in the District, who experience the use of preferred pronouns as a vital part of affirming their existence and experience the use of non-preferred pronouns as dehumanizing, degrading, and humiliating.  It is also true for Parent A-D’s children, whose parents aver that using pronouns inconsistent with a person’s biological sex at birth contradicts their “deeply held beliefs” about the immutability of sex.  The intentional use of preferred or non-preferred pronouns therefore represents speech protected by the First Amendment....

Students who do not want to use their transgender classmates’ preferred pronouns may permissibly use no pronouns at all, and refer to their classmates using first names.... Parents A-D, to be sure, have made clear that this option is not their preference because their children “don’t want to avoid using pronouns ... they want to use biologically correct pronouns.”... But using first names is remarkably similar to a proposed “compromise” we praised in Meriwether—the plaintiff’s proposal to “call on [the transgender student in his class] using [that student’s] last name alone,” rather than any honorifics....

Outside instructional time, moreover, students may elect to not refer to their transgender classmates at all.  This choice to not speak mirrors the generally accepted accommodation for students morally opposed to reciting the Pledge of Allegiance....

At bottom, PDE has failed to make a clear showing that the District’s prohibition on the intentional use of non-preferred pronouns unconstitutionally compels speech. ...

... [T]he District’s position that students may communicate their belief that sex is immutable through means other than the use of nonpreferred pronouns, indicate that the District is not attempting to prohibit any viewpoints....

Judge Batchelder dissented, saying in part:

As I understand it, the plaintiffs’ position—based on their scientific (biology, physiology, and genetics) and religious beliefs—is that biological gender is immutable, people are either male or female, and there is no such thing as “gender transition”; that is a made-up thing, imaginary or make believe, and a public school cannot force their children to pretend it is a real thing.  Agree or disagree, but that is their position.   

In that light, the speech at issue here concerns the existence of gender transition, not just a debate about gender-identity issues or misgendering.  The Olentangy Local School District’s view—contrary to Parents Defending Education’s—is that there is such a thing as gender transition; it is real, worthy of recognition and, in fact, worthy of protection in the public schools.  Why else would the District require preferred pronouns, prohibit biological pronouns, or press the odd compromise of no pronouns at all?  Therefore, the governmental authority (the District) has taken a clear position (viewpoint) in which all of its captive subjects (students) must affirm the existence of gender transition (either through words or silence), regardless of their own view.  This is a viewpoint-based regulation of speech....

Courthouse News Service reports on the decision.

Requiring Conditional Use Permit Is Not Substantial Burden Under RLUIPA

In Athey Creek Christian Fellowship v. Clackamas County, (D OR, July 30, 2024), an Oregon federal district court dismissed a RLUIPA challenge to the denial of a Conditional Use Permit for construction of the second phase of a church building. The court said in part: 

... [P]laintiff filed this suit in November of 2022, alleging that the zoning ordinance that required churches to apply for a conditional use permit and did not allow churches as a primary use is facially invalid under the RLUIPA, and that the County violated plaintiff’s rights under the RLUIPA, the First Amendment, and the Oregon Constitution by not allowing plaintiff to build phase 2 of the project and forcing plaintiff to re-apply for a new or modified conditional use permit. 

The purported burden here then includes the County’s conclusion that the 2006 CUP has expired, and the County’s resulting insistence that plaintiff must now apply to build phase 2 under the new “primary use” .... Neither one of these carries the traditional hallmarks of a substantial burden under the RLUIPA....

Notably, the record in case is missing a common, even pervasive, attribute in those cases where the plaintiffs succeeded on a substantial burden claim, namely that the relevant zoning authority displayed some outward hostility toward or pretextual decision-making about the plaintiffs’ proposed religious use....

... [P]laintiff has not shown why seeking an extension of the 2006 CUP or timely obtaining the relevant building permits for phase 2 were a substantial burden to its religious exercise....

The same reasoning applies to the alleged burden that resulted from the County’s insistence now that plaintiff must now re-apply as a primary use. It is not a substantial burden to file an application for a proposed land use.