Texas Sues HHS Over Rule Protecting Privacy of Information About Out-of-State Abortions

Last week, Texas Attorney General Ken Paxton filed suit against the U.S. Department of Health and Human Services challenging two HHS privacy rules that limit entities covered by HIPPA from disclosing certain health care information about patients to state law enforcement officials. The rule adopted earlier this year (see prior posting) specifically prohibits disclosure of information to enforcement officials in a woman's home state for their use in a civil, criminal or administrative proceeding investigating reproductive health care (including abortions) provided in another state where the health care was lawful in the state where it was provided. The complaint (full text) in State of Texas v. U.S. Department of Health and Human Services, (ND TX, filed 9/4/2024), alleges in part that HIPAA explicitly preserves state investigative authority and does not give HHS authority to promulgate rules limiting has HIPPA regulated entities may share information with state governments. The Texas Attorney General's office issued a press release announcing the filing of the lawsuit.  AP reports on the lawsuit. [Thanks to Thomas Rutledge for the lead.]

6th Circuit: Permit Requirement Did Not Substantially Burden Church

 In Dad's Place of Bryan, Ohio v. City of Bryan, Ohio, (6th Cir., Sept. 5, 2024), the U.S. 6th Circuit Court of Appeals refused to enter a preliminary injunction pending appeal to prevent the city from enforcing requirements that the church obtain a permit or variance before people may sleep on the first floor of the church building. Rejecting plaintiff's RLUIPA argument, the court said in part:

Dad's Place fails to show that it will likely succeed on establishing that the City's zoning laws substantially burden its religious exercise.... [T]he burdens alleged by Dad's Place are self-imposed.... The City provides a process by which entities in the commercial district can seek a variance or conditional use permit ("CUP") allowing them to operate as residential facilities.... Yet, despite being opened in 2018, Dad's Place has never applied to the City for a CUP or variance.... RLUIPA does not entitle Dad's Place to engage in unauthorized uses without ever seeking a permit or variance to do so....

Additionally, Dad's Place has not shown that it lacks adequate alternatives. For example, it can use a second floor as a residential facility or open a second facility. It asserts that such alternatives "transform the nature of the Church's ministry," but it gives no explanation as to why its ministry requires people to sleep on the ground floor of the building as opposed to the second floor, or why its ministry would be less effective if people slept in a different building that was properly zoned for residential use....

The court also rejected plaintiff's free exercise claim.

RLUIPA Success Unlikely on Challenge to Denial of Special Use Permit for Jewish Retreat Center

In Fresh Start Center v. Township of Grosse Ile, (ED MI, Sept. 5, 2024), a Michigan federal district court refused to grant a preliminary injunction in a RLUIPA lawsuit challenging the denial of a variance and a special land use permit to the Fresh Start Center to operate a religious retreat center in an area zoned residential. The Center holds retreats twice a month for Orthodox Jews who have experienced a loss of faith because of trauma. Each retreat involves 4 to 5 participants from all over the world and up to 4 other staff. The court said in part:

Because Plaintiff has not demonstrated a strong likelihood of establishing a substantial burden on the Center’s religious exercise, the Court need not determine whether that substantial burden was the least restrictive means of furthering a compelling government interest....  Here, the Center has not shown there are no feasible alternate locations within the Township and outside the Township where the Center can conduct its retreats.  The only burden the Center has demonstrated is disappointment that it cannot conduct its retreats at the Property.  The present record reveals that being unable to conduct its retreats at a desired location does not rise to the level of a substantial burden.  While the Center may ultimately succeed on the merits once the record is more fully developed, at this juncture it has not shown a strong likelihood of success on the merits of its substantial burden RLUIPA claim....

The court also concluded that plaintiff is unlikely to prevail on a claim that the denial violated the equal terms provision of RLUIPA.

Factual Issues Remain in Chaplain's Suit Over Ouster for Anti-Trans Blog Post

 In Fox v. City of Austin, (WD TX, Sept. 4, 2024), a Texas federal district court refused to grant summary judgment to either side on several claims in a suit brought by a volunteer chaplain for the Austin, Texas fire department.  Plaintiff was fired because of his blog posts saying that God created each person as male or female, that sex is immutable and that it is unfair to allow males to compete in women's sports. Applying the balancing test in the Supreme Court's Pickering decision, the court concluded that there is a genuine dispute of material fact as to the extent of the disruption that the blog posts caused within the Fire Department.  Thus, the court refused to grant summary judgment on plaintiff's free speech retaliation claim, his free exercise claim and his claim under the Texas Religious Freedom Restoration Act. The court did dismiss plaintiff's claim that his free speech rights were violated when the Department requested that plaintiff write an apology note and it found that the fire chief had qualified immunity in the claim against him for damages.

Recent Articles of Interest

From SSRN:

• Bray, Samuel L. Bray & D.N. Keane, James Ussher (1581-1656), (August 13, 2024).
• Habeeb Olayinka Lawal, Debunking Myth: Islamic Banking and Riba (Interest Or Usury), (July 29, 2024).
• Nicholas Tramposch & Daniel J.H. Greenwood, After Smith Falls: Corporate Free Exercise Lochnerism, (Hofstra Univ. Legal Studies Research Paper (forthcoming)).
• Paula A. Monopoli, The Nineteenth Amendment and Dobbs, (15 ConLawNOW 227 (2024)).

From SmartCILP:

• Shlomo C. Pill, Issues in Law and Ministry: Tort and Employment Law, 69 Wayne Law Review 243-310 (2024).
• Russell Powell, Religious Originalism, 69 Wayne Law Review 311-362 (2024).

Trial Court Says Missouri's Abortion Rights Initiative Petitions Were Invalid

In Coleman v. Ashcroft, (MO Cir. Ct., Sept. 6, 2024), a Missouri state trial court held that the petitions used to obtain signatures to include Missouri's Right to Reproductive Freedom amendment on the November ballot violated the provision in Missouri law that the petitions must include all sections of existing law or of the constitution which would be repealed by the measure. The court said in part:

Defendants argued on the record that such omission was made because it would confuse voters in that Amendment 3 would eventually have some type of effect on all sorts of laws.  That theory, of course, is not an exception to the requirements of 116.050 RSMo.

The secretary of state has already certified the measure to appear on the ballot. The court said that the only remedy for such omissions was enjoining certification of the measure and its appearance on the ballot. However, the court delayed execution of the injunction until September 10, the deadline for printing the measure on the ballot, so the issue could be reviewed by an appellate court.

AP reports on the decision.

Parents Sue Over School Policy That Places Students Together on Overnight Trips on Basis of Gender Identity

Suit was filed this week in a Colorado federal district court by parents of Jefferson County, Colorado school children challenging the district's policy of assigning students and counselors on overnight school trips to room together on the basis of shared gender identity rather than biological sex. The complaint (full text) in Wailes v. Jefferson County Public Schools, (D CO, filed 9/4/2024), alleges that the policy violates parents' right to control the upbringing and education of their children, students' right of bodily privacy, and the free exercise rights of both parents and students.  The complaint, which asks that Plaintiff students in the future not be placed in accommodations with transgender students, says in part:

346. Parent Plaintiffs have a sincere religious belief that they must teach their children to practice modesty and protect their children’s modesty. This requires that their children not undress, use the restroom, shower, complete other intimate activities, or share overnight accommodations with the opposite sex. 

347. Parent Plaintiffs have a sincere religious belief that God created all people in His image as male and female. Genesis 1:27; Genesis 5:2. 

348. Parent Plaintiffs believe that a person’s sex is binary and fixed at conception. They do not believe a person can change their sex....

412. Student Plaintiffs’ sincerely held religious beliefs require them to avoid intimate exposure, or the risk of intimate exposure, of their own bodies or intimate activities to the opposite sex.

413. Student Plaintiffs’ sincerely held religious beliefs also require them to avoid intimate exposure, or the risk of intimate exposure, to the body or intimate activities of someone of the opposite sex....

415. Student Plaintiffs have a sincere religious belief that God created all people in His image as male and female. Genesis 1:27; Genesis 5:2. 

416. Student Plaintiffs believe that a person’s sex is binary and fixed at conception. They do not believe a person can change their sex.

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

Missouri Appeals Court Refers Question of Church's Duty of Supervision to State Supreme Court

 In Doe v. First Baptist Church of Pierce City, Missouri, (MO App., Sept. 2, 2023), a Missouri appellate court described plaintiff's claim:

Plaintiff asserts that FBC, a Southern Baptist religious institution, had a duty to supervise the youth ministries program members, including herself, while they were transported on a church van as part of that program, that FBC breached this duty by failing to either have or follow a policy to protect minors from sexual abuse, and that Plaintiff was injured as a result by the actions of a fellow youth ministries program member....

The court said that a prior state Supreme Court opinion, Gibson v Brewer, would call for dismissal of the case, saying in part:

Returning to the negligence claims at issue in Gibson, we must first address the negligent hiring/ordination/retention and negligent failure to supervise claims.  Our high court observed that “[q]uestions of hiring, ordaining, and retaining clergy . . . necessarily involve interpretation of religious doctrine, policy, and administration.”...  “Such excessive entanglement between church and state has the effect of inhibiting religion, in violation of the First Amendment” and “would result in an endorsement of religion, by approving one model for church hiring, ordination, and retention of clergy.”... Similarly ... “[a]djudicating the reasonableness of a church’s supervision of a cleric—what the church ‘should know’—requires inquiry into religious doctrine” and, as with the negligent hiring/ordination/retention claim, “would create an excessive entanglement, inhibit religion, and result in the endorsement of one model of supervision.” 

The court concluded, however:

We would affirm the summary judgment of the circuit court, but due to the general interest and importance of the issues on appeal, we transfer the case to the Supreme Court of Missouri pursuant to Rule 83.02.

11th Circuit: Barring Use of PA System for Pre-Game Prayers Does Not Violate 1st Amendment

 In Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., (11th Cir., Sept. 3, 2024), the U.S. 11th Circuit Court of Appeals rejected free speech and free exercise claims by a Christian school that was refused the use of a stadium's public address system for a pre-game prayer at the FHSAA state championship football game in which it was playing. The court held that pre-game PA announcements at state championship games are government speech. It also concluded that government control of its own expression does not violate the free exercise rights of private individuals.

Florida Phoenix reports on the decision.

Catholic Diocese Sues Feds Over Rule Change For Religious Worker Visas

Suit was filed last month in a New Jersey federal district court by the Catholic diocese of Patterson, New Jersey and by several Catholic priests who are citizens of foreign countries and are in the United States on R-1 Temporary Religious Worker visas.  The lawsuit challenges a State Department rule change adopted in March 2023 which makes it more difficult for religious workers on R-1 visas to obtain EB-4 special immigrant religious worker permanent resident status ("green card"). The complaint (full text) in Roman Catholic Diocese of Patterson, New Jersey v. U.S. Department of State, (D NJ, filed 8/8/2024) alleges in part:

This civil action asserts that in March of 2023, Defendant-DOS acted arbitrarily and capriciously when it imposed an unfounded and unsupported interpretation of the Act as it relates to visa availability for individuals and subject to the EB-4 preference category and employers who must rely upon the EB-4 preference category for their workers.  The recent and sudden agency action governing the calculation of visa availability and allocation by Defendant DOS was conducted without proper notice, failed to provide for a proper period of comment, exceeded the authority of Defendant-DOS, and directly threatens Individual-Plaintiffs’ ongoing ability to carry out their religious and spiritual vocation.  In doing so, Defendant-DOS acted in a manner certain to disrupt countless religious workers, forcing Individual-Plaintiffs to either violate the terms of their nonimmigrant visa or face imminent and abrupt departure the United States without any knowledge as to when, or even if, Individual-Plaintiffs will return to the United States.

The complaint alleges, among other things, violation of the Religious Freedom Restoration Act and the 1st Amendment's Free Exercise Clause.

Americal Magazine reports on the lawsuit.  North Jersey.com reports that the State Department's reaction to the lawsuit has been a statement that says in part:

[O]nly Congress has the ability to address the imbalance between the limited supply of EB-4 visas and the increasing demand. We recognize the importance of religious ministers and workers as well as their U.S. employers who lead faith-based institutions, and we share your concern about the long wait times for EB-4 visas.

Suit Challenges Nebraska Abortion Rights Ballot Proposal

On August 23, the Nebraska Secretary of State certified two competing abortion related petitions for inclusion on the November ballot-- the Protect the Right to Abortion amendment and the Protect Women and Children amendment. On Aug. 30, an anti-abortion proponent filed a petition in the Nebraska Supreme Court seeking a writ of mandamus requiring the Secretary of State to exclude the Protect the Right to Abortion proposal from the ballot. On the same day, the state Supreme Court granted petitioner leave to commence the action and set an extremely rapid hearing schedule. The state must file an answer by today, September 4, and a hearing is set for September 9. The petition (full text) in State of Nebraska ex rel LaGreca v. Evnen, (NE Sup. Ct., filed 8/30/2024) alleges as its only claim that the initiative proposal violates the single subject rule of the Nebraska constitution. Thomas More Society issued a press release announcing the lawsuit.

Teaching of Evolution Does Not Violate Establishment Clause

In Reinoehl v. Penn-Harris-Madison School Corporation, (SD IN, Aug. 30, 2024), an Indiana federal district court held that teaching the theory of evolution in public schools does not violate the Establishment Clause. The court said in part:

We find that Plaintiffs have failed to allege an Establishment Clause violation here because "it is clearly established in the case law, and perhaps also in common sense, that evolution is not a religion and that teaching evolution does not violate the Establishment Clause." ...

Nonetheless, according to Plaintiffs, "[e]volution promotes positions taken by advocates of Atheism," embodies "all the tenets of atheistic religious belief[,] and fail[s] to follow scientific laws . . . ." Plaintiffs thus "perceive" that the teaching of evolution in public schools "convey[s] a governmental message that students should subscribe to Atheism."... Despite Plaintiffs' assertions to the contrary, the purported similarities between evolution and atheism do not render the teaching of evolution in public schools violative of the Establishment Clause, which has never been understood to prohibit government conduct that incidentally "coincide[s] or harmonize[s] with the tenets of some or all religions."...

9th Circuit: Title IX's Religious Exemption Does Not Violate Establishment Clause

In Hunter v. U.S. Department of Education, (9th Cir., Aug. 30, 2024), the U.S. 9th Circuit Court of Appeals held that the exemption available to religious educational institutions from Title IX's ban on sex discrimination (including sexual orientation and gender identity) does not violate the Establishment Clause or equal protection guaranties. The court said in part:

Any practice that was “accepted by the Framers and has withstood the critical scrutiny of time and political change” does not violate the Establishment Clause....

Given the dearth of historical equivalents, ... tax exemptions are the most analogous case to Title IX’s statutory exemption.... Absent additional historical evidence—and Plaintiffs point us to none here—the history of tax exemptions near the time of the Founding suggests that the statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning.

Having considered the history of religious exemptions at or near the Founding, the history and tradition test requires us to look next to the “uninterrupted practice” of a law in our nation’s traditions....  The Department identifies a relevant tradition in “modern legislative efforts to accommodate religious practice.” ...

... [T]here is no evidence in the record that the exemption here “was drafted with the explicit intention of including particular religious denominations and excluding others.”...

... Here, when a school claims an exemption, the Department must make two determinations—whether the school is controlled by a religious organization and whether Title IX would conflict with the religious tenets of the controlling organization....  The Department has ... “never rejected an educational institution’s assertion that it is controlled by a religious organization” and “never denied a religious exemption when a religious educational institution asserts a religious objection.” ...

The exemption substantially relates to the achievement of limiting government interference with the free exercise of religion....

Disclosure of Covid Status to Plaintiff's Pastor Did Not Infringe Privacy or Free Exercise Rights

In Fulmore v. City of Englewood, (NJ App., Aug. 30, 2024), a New Jersey appellate court dismissed a suit brought by an employee of the city's Department of Public Works who contended that his rights were violated when, early in the Covid pandemic, the city's health officer disclosed to plaintiff's pastor that plaintiff was supposed to be under quarantine because of exposure to Covid. Plaintiff, who was an associate minister at a Baptist church, had participated in an in-person recording of a religious service without disclosing to other participants that he was supposed to be in quarantine. the court said in part:

Here, plaintiff's claim that Fedorko violated his constitutional right to privacy when he disclosed plaintiff's quarantine status to Pastor Taylor is unavailing.  Fedorko's disclosure to Pastor Taylor occurred on April 10, 2020, in the context of a public health emergency, where COVID-19 "created an immediate and ongoing public health emergency that require[d] swift action to protect not only the City's employees, but the public they [were] hired to serve....

... "Given the scientifically undisputed risk of spreading this deadly virus," defendants' interest in protecting the public health from potential exposure to COVID-19 outweighed plaintiff's privacy interest in his quarantine status....

Rejecting plaintiff's claim that his religious free exercise rights were violated, the court said in part:

Here, even when viewed in the light most favorable to plaintiff, the record is devoid of evidence indicating that Fedorko's disclosure of plaintiff's quarantine status to Pastor Taylor had a "coercive effect" on plaintiff's religious practice....

... At his deposition, plaintiff testified that defendants' actions "changed [his] whole religious belief" and his "whole outlook on church."  He claimed defendants "ruined the relationship" he had had with Pastor Taylor "for the last [twenty-eight] years."...

However, plaintiff acknowledged that since the April 2020 incident, he had not been "barred" from church, nor had he ever received any "texts or messages [from Pastor Taylor] . . . saying [he was not] welcome at the church" or that Pastor Taylor "did[ not] want [plaintiff] to preach there anymore."

11th Circuit Denies En Banc Rehearing in Alabama's Ban on Gender-Affirming Treatment of Minors

In August 2023, the U.S. 11th Circuit Court of Appeals vacated a district court's preliminary injunction against Alabama's ban on hormone blockers and cross-sex hormones to treat minors with gender dysphoria, holding that the statute is only subject to rational basis review. (See prior posting.) Now, in Eknes-Tucker v. Governor of the State of Alabama, (11th Cir., Aug. 28, 2024), a majority of the 11th Circuit voted not to grant an en banc rehearing in the case. However, that decision generated a series of concurring and dissenting opinions spanning 173 pages.

Chief Judge William Pryor concurred in the denial but filed an opinion to respond to the dissenting opinion of Judge Jordan. The Chief Judge said in part:

The doctrine of substantive due process does violence to the text of the Constitution, enjoys no historical pedigree, and offers judges little more than shifting and unilluminating standards with which to protect unenumerated rights.... [U]nelected judges with life tenure enjoin enforcement of laws enacted by elected representatives following regular procedures, all in the name of fundamental rights that the Constitution never names but allegedly secures....

Judge Lagoa filed a concurring opinion, saying in part:

The propriety of the medications at issue is a quintessential legislative question, not a constitutional one.  Judges Jordan and Rosenbaum would have this Court end the debate by judicially fencing off these questions from state legislatures.  But our experience with the intersection of the Constitution and these types of issues suggests that this is a misguided effort. See Roe v. Wade.... 

Judge Rosenbaum’s and Judge Wilson’s dissents also disagree with our equal-protection holding, arguing that the Act discriminates based on sex and transgender status....  But the Act applies equally to everyone regardless of their sex or transgender status.  And transgender status is not a classification protected by the Equal Protection Clause.

Judge Wilson, joined by Judge Jordan, filed a dissenting opinion, saying in part:

This case presents numerous questions “of exceptional importance” worthy of en banc review.... Seeing that this case implicates the contours of substantive due process, fundamental rights, and equal protection, it is difficult to envision issues of greater importance.

Judge Jordan, joined by Judges Rosenbaum and Jill Pryor, filed a dissenting opinion, saying in part:

In this case, the panel characterized the liberty interest in part by asking whether there is a history of recorded uses of transitioning medications for transgender individuals (e.g., puberty blockers and cross-sex hormone treatments) as of 1868, when the Fourteenth Amendment was ratified....

The panel’s decision necessarily means that the fundamental right of parents to obtain medical treatment for their children extends only to procedures and medications that existed in 1868, and not to modern advances like the polio vaccine...,, cardiac surgery..., organ transplants..., and treatments for cancer like radiation ... and chemotherapy...

Judge Rosenbaum, joined by Judge Jill Pryor and in part by Judge Jordan, filed a dissenting opinion, saying in part:

... [P]arents’ liberty interest in directing that their child receive well-established, evidence-based, non-experimental medical treatment, subject to medically accepted standards and a physician’s independent examination and medical judgment, is a fundamental right, “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed”....

We ... receive no medical training in law school.  We don’t go through residencies or fellowships.  We don’t engage in medical research.  And we don’t practice medicine at all.  In fact, many of us went into the law because, among other reasons, we weren’t good at math or science.  Given our lack of medical expertise, we have no business overriding either the medical consensus that transitioning medications are safe and efficacious or clinicians’ ability to develop individualized treatment plans that follow the governing standards of care....

... [T]he Act discriminates based on two quasi-suspect classifications: sex and transgender status.  So either classification requires us to apply intermediate scrutiny.  When we do that, the Act cannot survive.  

Recent Articles of Interest

From SSRN:

• Stephen R. Munzer, Temptation, Sinlessness, and Impeccability, (International Philosophical Quarterly Vol. 63, No. 1, Issue 249 (March 2023)).
• Shamshad Pasarlay & Clark. B. Lombardi, The Constitutional Imagination of the Mujahidin: A History and Translation of Two Constitutions Proposed by Afghan Islamist Militias in the 1990s, (32 Wash. Int'l L.J. 283 (2023)).
• Itamar Mann & Lihi Yona, Defending Jews From The Definition of Antisemitism, (71 UCLA Law Review 2024).
• Michael Bindas, The Once and Future Promise of Religious Schools for Poor and Minority Students, (November 17, 2022).
• Alvin Velazquez, Instructing AI Through the Exercise of Labor's Solidarity: A Christian Perspective, (Indiana Legal Studies Research Paper No. 530 (2024).
• Gregor Puppinck, The Development and Contestation of Humanae Vitae, (June 15, 2023).
• Gregor Puppinck, The Five Paths of Conscientious Objection in Medicine, (December 08, 2022).
• Max Matthew Schanzenbach & Kim Yuracko, Promising the First Amendment: (De)Regulating Speech in Higher Education, (August 05, 2024).

6th Circuit Reverses Dismissal of Muslim Inmate's Religious Accommodation Complaints

 In Mustin v. Wainwright, (6th Cir., Aug. 27, 2024), the U.S. 6th Circuit Court of Appeals reversed the dismissal of free exercise, RLUIPA, equal protection and certain retaliation claims brought by a Muslim inmate who objected to the manner in which space was made for religious services and objected to inadequate Ramadan meals.  The court said in part:

Mustin contends that defendants ... substantially burdened his ability to attend Jummah and Taleem by (1) “constantly” moving Jummah and Taleem to small rooms that could safely accommodate only half of the attendees, and (2) inconsistently allowing inmates to attend Taleem services and sending inmates back to their cells to accommodate other religious events.... Mustin properly alleged that defendants ... substantially burdened Mustin’s ability to safely attend Jummah and Taleem by forcing him to put his personal safety at risk in order to fulfill his religious obligations by attending services in a room packed with roughly twice the number of people it can safely house....

At this early stage, Mustin has alleged facts sufficient to support an inference that defendants’ provision of expired, offending, and otherwise nutritionally insufficient meals during Ramadan pressured him to violate his religious beliefs or face potential malnutrition.  Mustin alleges that he was served raw food and expired drinks in his breakfast bags, and that his dinner bags often contained pork-based main courses, which Muslims are forbidden from eating.... Mustin plausibly alleged that the non-expired and non-pork-based foods he received during Ramadan were insufficient in quantity and nutrition quality to meet his nutritional needs.

PA Supreme Court: Yard Signs Responding to Neighbors' Antisemitism Protected by Pennsylvania Constitution

In a 4-2 decision in Oberholzer v. Galapo, (PA Sup. Ct., Aug. 20, 2024), the Pennsylvania Supreme Court, relying on the broad free speech protections in Art. I, Sec. 7 of the Pennsylvania Constitution, dissolved an injunction issued by a trial court in an unusual dispute between neighbors. As described by Justice Dougherty's majority opinion:

In November 2014, a brewing feud between the neighbors over landscaping issues reached a boiling point after Dr. Galapo confronted Mr. Oberholzer about a resurveyed property line and Mrs. Oberholzer responded by calling him a “fucking Jew.”  This prompted the Galapos in June 2015 to erect the first of many signs primarily displaying anti-hate and anti-racist messages “along the back tree-line directly abutting [the Oberholzers’] property line, pointed directly at [the Oberholzers’] house, and in direct sight of [other] neighbors’ houses.” ...  All told, the Galapos posted twenty-three signs over a years-long span, during which the neighbors continued to quarrel over other minor nuisances.

Among other things, the Oberholzers sued claiming the signs placed them in a false light. The majority concluded:

We hold the Galapos engaged in protected speech when they posted in their own yard stationary signs decrying hatred and racism.  We further hold the Oberholzers failed to prove that substantial privacy interests are being invaded in an essentially intolerable manner by the Galapos’ pure residential speech.  As such, Article I, Section 7 of the Pennsylvania Constitution and this Court’s precedents precluded the trial court from enjoining the signs, regardless of the nature of the torts alleged.  The injunction imposed an improper prior restraint on speech in violation of Article I, Section 7.

Justice Wecht filed a dissenting opinion, saying in part:

The Galapos argue that the present injunction violates the no-injunction rule, that it is an unconstitutional prior restraint on speech, and that it fails strict scrutiny.  These arguments are unpersuasive.  The no-injunction rule does not exist in Pennsylvania.  Moreover, even if it did exist, it would not apply here because the equity court did not purport to enjoin defamatory speech.... The argument that the injunction constitutes a prior restraint is also mistaken because the injunction does not restrict speech in advance of its publication.  Finally, the injunction withstands application of strict scrutiny because it is narrowly tailored to serve a compelling state interest.

Justice Brobson also filed a dissenting opinion, saying in part:

I would conclude that the trial courts of this Commonwealth have the authority to enjoin residential speech protected by Article I, Section 7 of the Pennsylvania Constitution that rises to the level of a private nuisance and disrupts the quiet enjoyment of a neighbor’s home.  I would further find that the Injunction is content neutral, furthers the Commonwealth’s significant interest in protecting the privacy and quiet enjoyment of the Oberholzers’ home, and burdens no more of the Galapos’ speech than necessary to protect the Oberholzers’ right to residential privacy.

AP reports on the decision.

Churches Challenge Constitutionality of Johnson Amendment

The Johnson Amendment which prohibits 501(c)(3) tax-exempt organizations from supporting or opposing political candidates was challenged this week as being unconstitutional as applied to churches. The complaint (full text) in National Religious Broadcasters v. Werfel, (ED TX, filed 8/28/2024) alleges in part:

Churches are placed in a unique and discriminatory status by the IRC. Under § 508(c)(1) of the IRC, churches need not apply to the Internal Revenue Service [“IRS”] to obtain recognition of their 501(c)(3) status. The IRC places them automatically within the ambit of 501(c)(3) and thereby silences their speech, while providing no realistic alternative for operating in any other fashion. Churches have no choice; they are automatically silenced vis-à-vis political candidates.

Hundreds of newspapers are organized under § 501(c)(3), and yet many openly endorse political candidates....

Many 501(c)(3) organizations engage in electoral activities that are open, obvious, and well known, yet the IRS allows some, but not all, such organizations to do so without penalty. Again, Plaintiffs believe that such churches have the constitutional right to engage in such participation; they simply want the same right for themselves. ...

The IRS operates in a manner that disfavors conservative organizations and conservative, religious organizations in its enforcement of § 501(c)(3). This is a denial of both religious freedom and equal protection....

Plaintiffs contend that the Johnson Amendment, as written and as applied by the IRS, violates the First Amendment’s Free Speech Clause, Free Exercise Clause, the Fifth Amendment’s Due Process Clause (Void for Vagueness), the Fifth Amendment’s Due Process Clause (Equal Protection), and the Religious Freedom Restoration Act.

Catholic News Agency reports on the lawsuit.

Pregnancy Resource Center Sues Massachusetts Officials Over Opposition Campaign

Suit was filed last week in a Massachusetts federal district court by Your Options Medical Center, an anti-abortion pregnancy resource center, against Massachusetts officials and an abortion rights foundation, alleging deprivation of free speech, free exercise and equal protection rights. The complaint (full text) in A Woman's Concern v. Healy, (D MA, filed 8/19/2024), alleges in part:

This case is necessitated by an overt viewpoint-based campaign of harassment, suppression, and threats against YOM and other PRCs. Directed by Governor Healey and the other Defendants, this campaign involves selective law enforcement prosecution, public threats, and even a state-sponsored advertising campaign with a singular goal – to deprive YOM, and groups like it, of their First Amendment rights to voice freely their religious and political viewpoints regarding the sanctity of human life in the context of the highly controversial issue of abortion. 

Defendants’ retaliation and selective-enforcement campaign accuses YOM and other PRCs of being a public health threat, of carrying out false and misleading advertising, and of other falsehoods, while actively urging citizens to report PRCs to State law enforcement....

It is well-settled that viewpoint discrimination applied through threats of legal sanctions and other means of coercion and intimidation violates the United States Constitution where, as here, such measures chill protected First Amendment activities. That very kind of selective censorship scheme is evidenced here. Moreover, the threats in this case were targeted explicitly against the religious speech of PRCs in violation of the Free Exercise Clause.

Catholic News Agency reports on the lawsuit.