Religion Clause

Thursday, September 12, 2024

Maryland Supreme Court Hears Arguments in Challenge to Child Victims Act

On Tuesday, the Maryland Supreme Court heard oral arguments in three related cases that raise the question of whether the Maryland Child Victims Act of 2023 impermissibly abrogated a vested right created by a 2017 statute. The 2023 Act eliminated the statute of limitations for damage actions alleging sexual abuse while the victim was a minor. The cases heard by the court are Key School, Inc. v. Bunker (video of oral argument); Board of Education of Harford County v. John Doe (videos of oral argument on constitutional question and on standing); and Roman Catholic Archbishop of Washington v. John Doe (video of oral argument). AP reports on the oral arguments. [Thanks to Thomas Rutledge for the lead.]

Wednesday, September 11, 2024

Missouri Supreme Court: Abortion Rights Issue Must Appear on November Ballot

The Missouri Supreme Court yesterday ruled that the Missouri's Right to Reproductive Freedom amendment must appear on the November ballot, reversing a decision by a trial court last week. (See prior posting.) The Supreme Court in Coleman v. Ashcroft, (MO Sup. Ct., Sept. 10, 2024) said in part in its Order:

By a majority vote of this Court, the circuit court’s judgment is reversed. Respondent John R. Ashcroft shall certify to local election authorities that Amendment 3 be placed on the November 5, 2024, general election ballot and shall take all steps necessary to ensure that it is on said ballot. Opinions to follow. ...

Pursuant to section 116.150.3, the secretary of state must certify a petition as sufficient or insufficient by 5:00 p.m. on the thirteenth Tuesday before the election. Respondent Ashcroft certified the petition as sufficient prior to that deadline, and any action taken to change that decision weeks after the statutory deadline expired is a nullity and of no effect....

Missouri Independent reports on the decision.

USCIRF Report: US Better at Condemning Violations of Religious Freedom Than at Promoting Change

Last week (Sept. 6), the U.S. Commission on International Religious Freedom issued a 28-page report (full text) titled Revisiting the CPC Designation. The report evaluates the effectiveness of the provisions of the International Religious Freedom Act that call for designating as Countries of Particular Concern those nations where the government has engaged in or tolerated particularly severe violations of religious freedom. The Report says in part:

Key informant interviews and independent discourse analysis reveal that the CPC designation mechanism is far more effective at condemning religious freedom violations than promoting changes to policy.....

In its 25-year history, IRFA has played a significant role in elevating international religious freedom as a U.S. foreign policy priority and galvanizing a global effort to advance this fundamental human right. The CPC designation mandate, including its requirement for subsequent actions, represents a core component of that policy effort. When appropriately utilized, it has energized action across the IRF ecosystem. Maintaining this energy has been critical in cases of success; this is true both within the U.S. foreign policy sphere and with violator states. When the United States is able to make a sustained, coherent, and adaptive case for religious freedom, U.S. interlocutors take note. The CPC designation tool is the enforcement mechanism that undergirds these efforts.

However, its use can be improved through more consistent application, integration into U.S. bilateral relationships, and documentation of changes to freedom of religion or belief. Too often, the application of IRFA has failed to produce genuine change to advance religious freedom. The repeated use of sanctions waivers backed by vague justifications and the repurposed application of preexisting sanctions dilute the effectiveness of the CPC designation. The indefinite suspension of sanctions or other punitive measures for religious freedom violators, whether due to inertia or competing policy priorities, impedes accountability for religious freedom violators. When waivers must be issued, as the act permits, the State Department should provide clear justifications and timelines.

Baptist Press reports on USCIRF's findings.

Muslim Woman Can Move Ahead on Some Challenges to Sheriff's Booking Photo Policy

In Hague v. Kent County, (WD MI, Sept. 9, 2024), plaintiff, a Muslim woman, challenged the Kent County, Michigan, Sheriff Office's policy on booking photos for detainees wearing a religious head covering. Two photos were taken, one with the head covering and one without. Only the one with the head covering is released to the public. The other was uploaded to the Michigan State Police data base. Multiple officers could be present when the photos were taken. The court held that the photo policy imposed a substantial burden on plaintiff's religious exercise in violation of RLUPA. but that money damages are not available for RLUIPA violations. Declaratory or injunctive relief is available. It also allowed plaintiff to move forward with her 1st Amendment free exercise claim, including for damages, against the county and the sheriff's office. The sheriff, though, has qualified immunity as to damage claims under the 1st Amendment.

Tuesday, September 10, 2024

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.

Monday, September 09, 2024

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.

Sunday, September 08, 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.

Friday, September 06, 2024

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.

Thursday, September 05, 2024

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.

Wednesday, September 04, 2024

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.

Tuesday, September 03, 2024

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."

Monday, September 02, 2024

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.