Tribe Seeks Supreme Court Review of Transfer of Sacred Site to Mining Company

A petition for certiorari (full text) was filed this week with the U.S. Supreme Court in Apache Stronghold v. United States, (Sup. Ct., filed 9/11/2024). In the case, the U.S. 9th Circuit Court of Appeals sitting en banc, by a vote of 6-5, refused to enjoin the government from transferring to a copper mining company federally-owned forest land that is of significant spiritual value to the Western Apache Indians. (See prior posting.) The petition for review raises issues under both RFRA and the 1st Amendment's Free Exercise clause. Becket Fund issued a press release announcing the filing of the petition seeking Supreme Court review.

Indiana Trial Court Rejects "As Applied" Challenge to State Abortion Restrictions

Last year, Indiana's Supreme Court rejected a facial challenge to the state's 2022 abortion law. In that case, the Indiana Supreme Court held:

Article 1, Section 1 protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk. Yet, this holding does not support Plaintiffs’ claim for a preliminary injunction. That is because they framed their claim as a facial challenge to the entire statute in all conceivable circumstances rather than an as-applied challenge to the law’s application in any particular set of circumstances where a pregnancy endangers a woman’s life or health. (See prior posting.)

Plaintiffs then filed an "as applied" constitutional challenge to the Indiana law. In Planned Parenthood Great Northwest, Hawai'i, Alaska, Indiana, Kentucky, Inc. v. Members of the Medical Licensing Board of Indiana, (IN Cir. Ct., Sept. 11, 2024), an Indiana state trial court now rejected that challenge.  The court said in part:

Plaintiffs have not shown a that S.B.1 materially burdens the rights of any specific patient or well-defined class of patients to access constitutionally protected abortion care. Significant and compelling evidence regarding the policy implications of S.B. 1-- and its effect on medical professionals in particular-- was presented. However, the Court cannot substitute its own policy preferences for that of the Indiana General Assembly and the Court limits its examination to the General Assembly's constitutional authority post-Planned Parenthood. Plaintiffs have not shown an instance where an abortion is necessary to treat a serious health risk but would also fall outside of the Health and Life Exception.  Additionally, Plaintiffs have not demonstrated that the Hospital Requirement is materially burdensome to constitutionally protected abortion access, nor that it fails rational basis review as to statutorily authorized (but not constitutionally protected) abortions.

Liberty Counsel issued a press release announcing the decision.

North Dakota Trial Court Says State Abortion Ban Violates State Constitution

 In Access Independent Health Services, Inc. v. Wrigley, (ND Dist, Ct., Sept. 12, 2024), a North Dakota state trial court judge held that the state's current abortion law that bans abortions (with limited exceptions), violates the state constitution.  The court said in part:

[T]he court concludes that (1) the Amended Abortion Ban set forth in Chapter 12.1-19.1, N.D.C.C., as currently drafted, is unconstitutionally void for vagueness; and (2) pregnant women in North Dakota have a fundamental right to choose abortion before viability exists under the enumerated and unenumerated interests protected by the North Dakota Constitution for all North Dakota individuals, including women-- specifically, but not necessarily limited to, the interests in life, liberty, safety, and happiness enumerated in Articles [I], section 1 of the North Dakota Constitution.

The court also observed:

... [T]he decision in this matter may be one of the most important this Court issues during its time on the bench. However, in reaching the decision below, it is also not lost on the Court that, on appeal, this Court's decision is given no deference.

... The Court is left to craft findings and conclusions on an issue of vital public importance when the longstanding precedent on that issue no longer exists federally, and much of the North Dakota precedent on that issue relied on the federal precedent now upended-- with relatively no idea how the appellate court in this state will address the issue.

North Dakota Monitor reports on the decision.

South Carolina Supreme Court: State Scholarship Program for Private School Students Violates State Constitution

 In Edison v. South Carolina Department of Education, (SC Sup. Ct., Sept. 11, 2024), the South Carolina Supreme Court in a 3-2 decision held that the state's Education Scholarship Trust Fund Act violates the state constitution insofar as it authorizes use of ESTF funds to pay tuition and fees to private educational institutions.  Article XI, Sec. 4 of the South Carolina Constitution provides:

No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.

The court said in part:

A parent who chooses to use a scholarship to pay their child's private school tuition is undoubtedly using public funds to provide a direct benefit to the private school....  After we clear away the window dressing, we can see the Act funnels public funds to the direct benefit of private schools.  This is what our constitution forbids.  We conclude Petitioners have carried their burden of proving beyond a reasonable doubt the portion of the Act that allows tuition payments from public funds for the direct benefit of private educational institutions violates Article XI, Section 4.

Chief Justice Kittredge, joined by Justice Few, filed a dissenting opinion, saying in part:

Under the South Carolina Constitution, the use of public funds for the direct benefit of a private school is impermissible; the use of public funds for the indirect benefit of a private school is entirely permissible....

In my view, ... the structure and operation of the ESTF Act provide an indirect benefit to schools of the families' choice—both private and public alike. Nonetheless, the majority opinion today defines the phrase "direct benefit" so broadly that it swallows any possible meaning of "indirect benefit" in the process.

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

10th Circuit: School Administrator Fired Over Religious Comments Has Discrimination, But Not Retaliation, Claim

 In McNellis v. Douglas County School District, (10th Cir., Sept. 10, 2024), the U.S. 10th Circuit Court of Appeals affirmed dismissal of retaliation claims by a high school Assistant Principal/ Athletic Director, but reversed dismissal of his religious discrimination claims under Title VII and the Colorado Anti-Discrimination Act.  Plaintiff Corey McNellis was fired after he complained about the depiction of Christians in an upcoming school play about the 1998 hate-motivated murder of Matthew Shepard in Wyoming. The court concluded the McNellis's speech was not protected by the 1st Amendment because it was made in the course of performing his official duties. It also concluded the McNellis's complaints about being investigated because of his Christian beliefs were not the cause of his firing. In allowing plaintiff to proceed with his discrimination claims, the court said that plaintiff had alleged sufficient facts to give rise to an inference of discrimination.

9th Circuit: Requiring Tree Trimming Did Not Violate Plaintiff's Free Exercise Rights

In Joseph v. City of San Jose, (9th Cir., Sept. 11, 2024), the U.S. 9th Circuit Court of Appeals rejected plaintiff's claim that enforcement of municipal code restrictions violated his 1st Amendment religious free exercise rights. The court said in part:

Joseph asserts that the City’s assessments against his trees placed a substantial burden on the free exercise of his “religious and spiritual beliefs,” which he describes as having “Buddhist, Taoist, Celtic, quantum physics, evolutionary, neurological, numerological, and cosmological foundations.”  Although “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds,” a court may properly consider “whether the alleged burden imposed by the [challenged state action] is a substantial one.”... We hold that the City’s actions did not create a substantial burden.  Joseph voluntarily complied with the generally applicable municipal code requirements to trim the trees’ overgrown vines, and he stated during his deposition that such trimming did not impair the trees’ spiritual or religious value.... .  “The right to freely exercise one’s religion ... ‘does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”....

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.]

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.

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.