Supreme Court Grants Review of EMTALA's Impact on State Abortion Restrictions

Yesterday, the U.S. Supreme Court agreed to review an Idaho federal district court decision (see prior posting) that preliminarily enjoined the state of Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act. The Supreme Court Order (full text) comes in the companion cases of Moyle v. United States, (Docket No. 23-726) and Idaho v. United States, (Docket No. 23-727) (certiorari granted, 1/5/2024). In September 2023, a 3-judge panel of the U.S. 9th Circuit Court of Appeals stayed the district court's injunction pending appeal. (See prior posting.)  However, the full 9th Circuit in an en banc Order vacated the panel's opinion that stayed the injunction and granted en banc review. In yesterday's Order, the Supreme Court allowed plaintiffs to bypass review by the 9th Circuit and present the case to the Supreme Court.  The Supreme Court also again stayed the district court's preliminary injunction that limited enforcement of Idaho's abortion ban. It granted review on the Question Presented in Idaho's Application:

Whether EMTALA preempts state laws that protect human life and prohibit abortions, like Idaho's Defense of Life Act.

The Court set arguments for the April 2024 argument session. Here is the SCOTUSblog case page that will link to pleadings in the Supreme Court.

AP reports on the Supreme Court's decision. Yesterday President Biden issued a Statement (full text) criticizing the Supreme Court's action, saying in part:

Today’s Supreme Court order allows Idaho’s extreme abortion ban to go back into effect and denies women critical emergency abortion care required by federal law. The overturning of Roe v. Wade has enabled Republican elected officials to pursue dangerous abortion bans like this one that continue to jeopardize women’s health, force them to travel out of state for care, and make it harder for doctors to provide care, including in an emergency. These bans are also forcing doctors to leave Idaho and other states because of laws that interfere with their ability to care for their patients. This should never happen in America.

Court Enjoins Idaho's Ban on Aiding a Minor in Obtaining an Abortion

In Matsumoto v, Labrador I, (D ID, Nov. 8, 2023), an Idaho federal district court issued a preliminary injunction against enforcing Idaho Code Section 18-623 which provides in part:

An adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion ... or obtains an abortion-inducing drug for the pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking.

The court said in part:

The Court finds Idaho Code Section 18-623 is a content-based regulation of protected speech and expression. The statute plainly regulates expression based on content by restricting adults from engaging in activities that advocate, assist, and communicate information and support to pregnant minors about legal abortion options....

Here, Idaho Code Section 18-623 fails to provide fair notice or ascertainable standard of what is and what is not abortion trafficking. The terms “recruiting, harboring, or transporting” are undefined, overbroad, and vague, making it impossible for a reasonable person to distinguish between permissible and impermissible activities....

In Matsumoto v. Labrador II, (D ID, Nov. 8, 2023), the same court refused to dismiss plaintiffs' First Amendment speech and 14th Amendment vagueness challenges as well as their right to interstate travel claims. However the court did dismiss plaintiffs right to intrastate travel challenge.

Reuters reports on the preliminary injunction.

Expanded Protection of Utah Lands Did Not Violate Establishment Clause

In Huck v. United States, (D UT, Sept. 21, 2023), a Utah federal district court rejected Establishment Clause, equal protection, due process and other challenges to Congress' 2019 designation of certain public lands in Utah as wilderness areas. The designation resulted in the lands being subject to more stringent use restrictions, including a ban on motor vehicles. Plaintiffs alleged that the designation was done to support Earth-religions and their beliefs regarding the ‘sacredness’ of public lands, in violation of the Establishment Clause. The court said in part:

 Given the recency of the Kennedy v. Bremerton School District decision, there is limited case law interpreting and applying the Supreme Court’s new [Establishment Clause] standard....

Recognizing these are relatively unchartered waters, the court considers Plaintiffs’ challenge with an eye toward the historical practice and understanding of the Establishment Clause and federal public lands management. While the concept of designated wilderness areas and motor vehicles might have seemed outlandish to the Founding Fathers, there is substantial legal authority supporting the federal government’s historically broad authority to designate public lands and restrict the public’s access to them. These actions, without more, do not raise the specter of government coercion of religious practices or observances....

Similarly, Plaintiffs have not plausibly alleged BLM’s motor vehicle restrictions violate “governmental neutrality between religion and religion, and between religion and nonreligion.”

The court also rejected plaintiffs' equal protection claim, saying in part:

Though Plaintiffs speculate that “[t]he BLM (as well as other . . . agencies) [conspired] with Earth-religionists [to] . . . deprive the aged, disabled or handicapped . . . from being able to access and travel upon many of the public lands,” these conclusory allegations—or speculations—fall short of satisfying Plaintiffs’ burden of alleging that the challenged actions were driven by discriminatory intent. On the contrary, Plaintiffs stress that the Dingell Act and motor vehicle restrictions were the result of the Earth-religionists’ efforts to “preserve and protect ‘Gaia’ or ‘Mother Earth,’” rather than an attempt to hinder the elderly or disabled.

EEOC Commissioner, In Unusual Procedure, Targets Abortion Travel Benefits By Employers

 Bloomberg Law reported yesterday:

Republican EEOC Commissioner Andrea Lucas is deploying a rarely used agency procedure to silently initiate targeted discrimination probes against at least three companies providing their employees with abortion travel benefits....

The investigations triggered by Commissioner Charges are based on claims by Lucas that by favoring employees seeking abortions and not furnishing comparable benefits to pregnant workers or disabled workers, employers are violating the pregnancy discrimination ban in Title VII or the Americans with Disabilities Act. Bloomberg Law also reports that the EEOC's former general counsel, even though she no longer held a position with the agency after being fired by the Biden administration, last month sent letters to a number of employers warning them of the possibility of such actions by the EEOC.

California Group Publishes Proposals To Protect Abortion In A Post- Roe v. Wade World

In California, the Future of Abortion Council, an organization comprised of 40 advocacy organizations and abortion providers,  yesterday released a Report (full text) setting out 45 recommendations for the legislature to consider if the Supreme Court overturns Roe v. Wade. According to ABC News:

With more than two dozen states poised to ban abortion if the U.S. Supreme Court gives them the OK next year, California clinics and their allies in the state Legislature on Wednesday revealed a plan to make the state a “sanctuary" for those seeking reproductive care, including possibly paying for travel, lodging and procedures for people from other states....

The recommendations are not just a liberal fantasy. Some of the state's most important policymakers helped write them, including Toni Atkins, the San Diego Democrat who leads the state Senate and attended multiple meetings.

Supreme Court Refuses Original Suit By Texas Against California

Yesterday, the U.S. Supreme Court in Texas v. California, (Sup. Ct., April 26, 2021), (SCOTUSblog case page) denied the state of Texas leave to invoke the Supreme Court's original jurisdiction to file a bill of complaint against the state of California. USA Today described the background:

California passed a law in 2016 prohibiting taxpayer-funded travel – such as for state employees to attend conferences – to any state that doesn’t ban discrimination on the basis of sexual orientation. Texas law allows foster-care and adoption agencies to deny same-sex couples on religious grounds.

Texas took California directly to the Supreme Court last year, asserting the travel ban was "born of religious animus" and that it violates the Constitution....

The justices had been considering whether to take the suit for months. The court did not explain its decision not to hear the case.

Justice Alito, joined by Justice Thomas, dissented, saying in part:

The practice of refusing to permit the filing of a complaint in cases that fall within our original jurisdiction is questionable, and that is especially true when, as in this case, our original jurisdictional is exclusive. As the history recounted above reveals, the Court adopted this practice without ever providing a convincing justification....

Texas raises novel constitutional claims, arguing that California’s travel ban violates the Privileges and Immunities Clause, U. S. Const., Art. IV, §2, cl. 1, the Commerce Clause, Art. I, §8, cl. 3, and the Equal Protection Clause, Amdt. 14, §1. I express no view regarding any of those claims, but I respectfully dissent from the Court’s refusal even to permit the filing of Texas’s complaint.

Biden Statement on the Beginning of Ramadan

Yesterday President Biden issued a Statement on the Beginning of Ramadan (full text), saying in part:

On my first day as President, I was proud to end the shameful Muslim travel ban, and I will continue to stand up for human rights everywhere, including for Uyghurs in China, Rohingya in Burma, and Muslim communities all over the world.

As we remember those who we have lost since last Ramadan, we are hopeful for brighter days ahead.  The Holy Qur’an reminds us that “God is the light of the heavens and earth,” who leads us out of darkness to the light.  Although our White House festivities will be held virtually this Ramadan, Jill and I look forward to resuming the traditional White House Eid celebration in person next year, inshallah.  We wish your families an inspiring and rewarding month.

Trump's Anti-Muslim Statements Did Not Taint Passport Revocations

In Abuhajeb v. Pompeo, (D MA, March 31, 2021), a Massachusetts federal district court dismissed Establishment Clause and Equal Protection challenges, among others, to the 2019 revocation of the U.S. passports of five siblings who were born in Jordan and whose father is a U.S. citizen. Claiming that the passports were initially issued erroneously, the revocations took place 14 years after the passports were initially issued.  According to the court:

The Siblings argue that President Trump’s statements during his 2016 campaign and administration, the series of executive orders barring immigrants from mostly Muslim-majority countries from entering the United States, and the State Department’s corresponding actions revoking their passports in August 2019 demonstrate that they were the targets of a new “deliberate revocation policy” based on their race and religion.

Rejecting this argument, the court said in part:

Even if the Siblings have alleged circumstantial evidence of President Trump’s discriminatory intent, they have not alleged how that intent motivated the State Department’s decision to revoke their passports. The 2017 Travel Ban and extreme vetting for immigrant visa applicants program allege discriminatory intent against Muslim and non-white immigrants, but not U.S. passport holders in the Siblings’ positions. The Department of Justice’s increase in denaturalization cases may implicate the Siblings, but the government has not moved to strip their citizenship in the past year since revoking their passports.

Recent Articles of Interest

 From SSRN:

• Nicole Stelle Garnett, Religious Charter Schools: Legally Permissible? Constitutionally Required?, (Manhattan Institute Policy Report (December 2020)).
• Stijn Smet, Toleration and the Law, (AOV of chapter published in Mitja Sardoč (ed), The Palgrave Handbook of Toleration (Palgrave Macmillan, 2021)).
• Ram Rivlin, The Morality of “Get-Threats”: Withholding Divorce as Extortion, (I·CON - International Journal of Constitutional Law 18(3) 849–869 (2020)).
• Andrew R. DeLoach, What's the Use of Religious Freedom?,  (Journal of Christian Legal Thought, Vol. 10, No. 2 (2020).
• Barbara P. Billauer, Fundamentalism in Roman Catholic Diocese v. Cuomo: The Court’s Farrago of Religious Freedom, Public Health Law, and Scientific (Il)Literacy, (February 17, 2021).
• Christopher C. Lund, Sex Offenders and the Free Exercise of Religion, (Notre Dame Law Review, Vol. 96, p. 1025, 2021).
• Mark D. Martin, Bradley J. Lingo & Michael Schietzelt, A Center Dedicated to Preserving a Constitution Designed for a Moral and Religious People, (Regent University Law Review, Vol. 33, No. 1, p. 1 (2020)).
• Abigail Burman, Abortion Sanctuary Cities: A Local Response to The Criminalization of Self-Managed Abortion, (California Law Review, Vol. 108, No. 6, 2020).
• Kyle Velte, Mitigating the 'LGBT Disconnect': Title IX’s Protection of Transgender Students, Birth Certificate Correction Statutes, and the Transformative Potential of Connecting the Two, (American University Journal of Gender, Social Policy & the Law, Vol. 27, No. 29, 2019).

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

• Hannibal Travis, Ethnic Cleansing and Genocidal Intent: Conceptualizing Destruction of Local Populations, (Global Studies Law Review, Vol. 19, No. 4).
• Virginia Beard, Demanding Democracy and Rejecting Autocracy in Africa: The Role of Religion and Regime Experience,  (February 5, 2021).
• Abdullahi Abdulquadir, An Examination of the Methods of Revenue Generation by Kwara State Internal Revenue Service (KWIRS) from Islamic Law Perspective, (August 14, 2019).
• Md Tasnimul Hassan, Is India Demonizing Muslims in the Name of Freedom of Speech and Expression?, (November 12, 2020).

From SmartCILP:

• Symposium on Catholic Legal Education, Journal of Catholic Legal Studies, Vol. 58, No. 1.
• Maja Munivrana Vajda, The Right to Mock, Ridicule and Criticize Religion—Exploring the Limits of Free Speech in a Democratic and Just Society, 55 Gonzaga Law Review 273-290 (2019-2020).
• Rodrigo Cespedes, A Comparative Case Law Analysis of Religious Speech, Academic Freedom, and Religious Institutions' Autonomy on a Global Scale, 55 Gonzaga Law Review 291-308 (2019-2020).
• Laura De Pasqual, Freedom of Religion in a Multicultural Europe: The Achbita and Bougnaoui Cases, 55 Gonzaga Law Review 309-330 (2019-2020).
• Charles Adside III, It's a Blowhorn, Not a Dog-Whistle: How President Trump's Travel Ban Orders, Not His Statements, Are Enough to Establish a Violation under the Religion Clauses, 47 Hastings Constitutional Law Quarterly 267-302 (2020).
• Gilad Abiri, Divisiveness, National Narratives, and the Establishment Clause, 40 Pace Law Review 399-457 (2019).
• Joseph J. Martins, Losing Liberty: A Biblical Defense for the Freedom of Speech on Campus, 32 Regent University Law Review 345-386 (2019-2020).

Supreme Court Enjoins, Pending Appeal, New York's COVID-19 Capacity Limits On Houses of Worship

The U.S. Supreme Court late last night, in a 5-4 decision, enjoined-- while appeals are pending-- New York's 10 and 25 person occupancy limits on houses of worship in red and orange zones of high COVID infections. In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, (Sup. Ct., Nov. 25, 2020), in a decision that also applies to Agudath Israel of America v. Cuomo, the Court's per curiam opinion said in part: 

[S]tatements made in connection with the challenged rules can be viewed as targeting the “ ‘ultra-Orthodox [Jewish] community.’ ”... But even if we put those comments aside, the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities....

[T]here are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue....

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.

Justice Gorsuch filed a concurring opinion, stating in part:

The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids....

Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.

Chief Justice Roberts filed a dissenting opinion arguing that while the restrictions pose serious concerns, the Court should not rule on them because the houses of worship before the Court are no longer in red and orange zones. He also criticized Justice Gorsuch's attack on the dissenters in the case.

Justice Kavanaugh filed a concurring opinion, explaining why he disagrees with Chief Justice Roberts' approach.

Justice Breyer, joined by Justices Sotomayor and Kagan, dissented, pointing out that the houses of worship are no longer under the challenged capacity limits and saying in part:

The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the State has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges.

Justice Sotomayor, joined by Justice Kagan, filed a dissenting opinion, saying in part:

It is true that New York’s policy refers to religion on its face. But as I have just explained, that is because the policy singles out religious institutions for preferential treatment in comparison to secular gatherings, not because it discriminates against them....

Finally, the Diocese points to certain statements by Governor Cuomo as evidence that New York’s regulation is impermissibly targeted at religious activity—specifically, ... New York’s Orthodox Jewish community.... The Diocese suggests that these comments supply “an independent basis for the application of strict scrutiny.”... I do not see how.... Just a few Terms ago, this Court declined to apply heightened scrutiny to a Presidential Proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the Proclamation as a “Muslim Ban,”....

 New York Times reports on the decision.

Recent Articles of Interest

 From SSRN:

• Michael Conklin, Andrew Koppelman's Proposal: A Lose-Lose Solution for Religious Liberty and Gay Rights (August 2020).
• Nelson Tebbe & Micah Schwartzman, Re-upping Appeasement: Religious Freedom and Judicial Politics in the 2019 Term, Virginia Public Law and Legal Theory Research Paper No. 2020-68 (2020)).
• Netta Barak Corren, Taking Conflicting Rights Seriously,  (Villanova Law Review, Vol. 65, No. 2, 2020).
• John Ip, The Travel Ban, Judicial Deference, and the Legacy of Korematsu, ((2020) 63 Howard Law Journal 153).
• Leonore Carpenter & Ellie Margolis, One Sequin at a Time: Lessons on State Constitutions and Incremental Change from the Campaign for Marriage Equality, (75 N.Y.U. Ann. Surv. Am. L. 255 (2020)).
• Michael J. Higdon, (In)Formal Marriage Equality, (July 19, 2020).
• Cynthia Conti-Cook, Surveying the Digital Abortion Diary: A Preview of How Anti-Abortion Prosecutors Will Weaponize Commonly-Used Digital Devices As Criminal Evidence Against Pregnant People and Abortion Providers in a Post-Roe America, (University of Baltimore Law Review, Forthcoming).
• Alyssa Bryant & Ezra Young, Transgender Politics: The Civil Rights of Transgender Persons, (Transgender and Gender Diverse Persons: A Handbook for Service Providers, Educators, and Families (Routledge 2019)).
• Ezra Young, Demarginalizing Trans Rights, (Deploying Intersectionality: Legal, Intellectual, and Activist Interventions (Kimberlé Crenshaw et al. eds., New Press 2021, Forthcoming).
• Eza Young, What the Supreme Court Could Have Heard in R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee  Stephens,  (California Law Review Online, 2020).

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

• Ronli Sifris, Tania Penovic & Caroline Henckels, Advancing Reproductive Rights through Legal Reform: The Example of Abortion Clinic Safe Access Zones, (University of New South Wales Law Journal, Vol. 43, No. 3, 2020).
• Kriti Aeron, Triple Talaq – a Battle towards Gender Justice with Reference to Shayara Bano, (March 5, 2019).
• Taiyba Khan, The Citizenship Amendment Act, 2019: A Religion Based Pathway to Indian Citizenship, (April 21, 2020).
• Peter Ottuh & Akpotor Eboh, A Philosophical Assessment of Tithing as a Tool for Tax Avoidance and Evasion in Nigeria, (August 5, 2020).
• Patrick Quirk, Protecting Religious Freedom and Conscience: What Australia Might Learn from Germany, (Fordham International Law Journal, Vol. 43, No. 163, 2019).
• Harsh Mahaseth, The Non-enforcement of Singapore’s Anti-gay Law Is Not a Good ‘Compromise’, (Economic and Political Weekly, Vol. 55, Issue No. 13, 28 Mar, 2020).

From elsewhere:

• Journal of Law & Religion, Vol. 35, Issue 2 (Aug. 2020).

Sudan Liberalizes Its Laws On Apostasy, Alcohol, Criminal Sanctions and Women's Rights

Al Jazeera reported earlier this week on important legal reforms being implemented in Sudan:

Sudan approved wide-ranging amendments to its criminal law including repealing the death penalty for apostasy as well as no longer requiring women to need a permit from male family members to travel with their children....

Public flogging will also be ended and the consumption of alcohol by non-Muslims will now be permitted. ...

The new laws will also ban female genital mutilation (FGM)....

Recent Articles of Interest

From SSRN:

• Angela Carmella, Progressive Religion and Free Exercise Exemptions, (Kansas Law Review, Vol. 68, 2020).
• Elizabeth M. Donovan, Catholic Social Teaching and Neo-Abolitionism: Tearing Down the House of the Rising Sun, (Cleveland State Law Review, Vol. 67, No. 3, 2019).
• Angela Carmella, 'Agape' and the Life and Work of Robert F. Cochran, Jr., (47 Pepperdine L. Rev. 287 (2020)).
• Thomas M. Keck, Nathan Carrington & Claire Sigsworth, Minority Rights, Governing Regimes, or Secular Elites: Who Benefits from the Protection of Religious Speech by the U.S. Supreme Court and European Court of Human Rights? (May 13, 2020).
• Mark Storslee, Church Taxes and the Original Understanding of the Establishment Clause, (169 University of Pennsylvania Law Review, Forthcoming).
• Aaron J. Saiger, School Funding Under the Neutrality Principle: Notes on a Post-Espinoza Future, (88 Fordham L. Rev. Online 213 (2020)).
• Patrick Ward, What is the (Undue) Burden for Reversing Precedent? Analysis of June Medical Services v. Russo in a Newly Configured Supreme Court, (April 15, 2020).

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

• M. Mohsin Alam Bhat Mob, Murder, Motivation: The Emergence of Hate Crime Discourse in India, (16(1) Socio-Legal Review (2020)).
• Ayesha Rasheed, Prioritizing Fair Information Practice Principles Based on Islamic Privacy Law, (Forthcoming, 10 Berkeley Journal of Middle Eastern and Islamic Law (2019)).
• Ahmad Shaikh, The King of Mysore Tipu Sultan and His Religious Legacy, (May 12, 2020).
• M. Mohsin Alam Bhat, Twilight Citizenship, (729 Seminar (May 2020)).

From SmartCILP and elsewhere:

• Paul Baumgardner & Brian K. Miller, Moving from the Statehouses To the State Courts? The Post-RFRA Future of State Religious Freedom Protections, 82 Albany Law Review 1385-1410 (2018-2019).
• Charles J. Russo, Kicking the Can Down the Road in Masterpiece Cakeshop: Is Finding a Happy Medium Possible, Or Will the Solution Remain Half-Baked?, [Abstract], 44 University of Dayton Law Review 399-442 (2019).
• Jeffrey F. Addicott, The Trump Travel Ban: Rhetoric vs. Reality, [Abstract], 44 University of Dayton Law Review 491-528 (2019).
• Zalman Rothschild, Free Exercise in a Pandemic, (University of Chicago Law Review Online (June 2020).

Another Suit Challenges Kentucky Ban On In-Person Church Services

A class-action lawsuit was filed last week in a Kentucky federal district court by three individuals who attended in-person Easter Sunday services at Maryville Baptist Church in Hillview, Kentucky. The in-person services violated Governor Andy Beshear's COVID-19 ban on mass gatherings.  State troopers placed notices on all cars in the church parking lot imposing a 14-day quarantine on those associated with the vehicle attending the service and others in their household. The complaint (full text) in Roberts v. Neace, (ED KY, filed 4/14/2020) alleges a violation of plaintiffs' free exercise rights, alleging in part:

Defendants’ prohibition of any in person church services, in the name of fighting Covid-19, is not generally applicable. There are numerous exceptions to the March 19, 2020 Order, such as an exception for factories, or attending establishments like shopping malls, where far more people come into closer contact with less oversight.

The suit also challenges the governor's travel ban. WTVQ News reports on the lawsuit. A different Kentucky federal district court has refused to restrain enforcement of the ban on mass gatherings. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Helen M. Alvare, Beyond Moralism: A Critique and a Proposal for Catholic Institutional Religious Freedom, (Connecticut Public Interest Law Journal, Vol. 19, No. 1, 2019).
• Terri Day, Revisiting Masterpiece Cakeshop -- Free Speech and the First Amendment: Can Political Correctness Be Compelled?, (Hofstra Law Review, Volume 48 (Forthcoming)).
• Joao Pedro Padua, Discursive Devices for Inserting Morality Into Law: Initial Exploration From the Analysis of a Brazilian Supreme Court Decision, (Language and Law / Linguagem e Direito, Vol. 6(1), 2019, p. 11-29).
• Shamshad Pasarlay, Shīʿī Constitutionalism in Afghanistan: A Tale of Two Draft Constitutions, (Australian Journal of Asian Law, Vol. 20, No. 2, Article 1, 2020).
• Greer Donley, Parental Autonomy over Prenatal End-of-Life Decisions, (Minnesota Law Review, Vol. 105, Forthcoming).

From SmartCILP:

• Jonathan J. Kim & Eugene Temchenko, Constitutional Intolerance to Religious Gerrymandering, 18 Connecticut Public Interest Law Journal 1-57 (2019).
• L. Darnell Weeden, Using Rational Basis Review in an Establishment Clause Challenge to an Alleged Muslim Travel Ban Undermines Religious Liberty, 18 Connecticut Public Interest Law Journal 165-186 (2019).

Texas Sues California In Supreme Court Over Travel Ban To States Allowing LGBTQ Discrimination

This week, the state of Texas filed an original suit in the U.S. Supreme Court against the state of California challenging California's ban on the state paying for travel by its employees to other states that allow discrimination against LGBTQ individuals or families. The complaint (full text of complaint and brief in support) in State  of Texas v. State of California, (US Sup. Ct., filed/2/10/2020) reads in part:

California has enacted and is enforcing economic sanctions against Texas, Texas citizens,and Texas businesses. California has targeted Texas and its residents because To Texas protects the religious freedom of faith-based child welfare providers within its borders....

California’s sanctions against Texas and Texans are born of religious animus and violate the Constitution’s Privileges and Immunities Clause, U.S. Const. art. IV, § 2, cl. 1; Interstate Commerce Clause, id. art. I, § 8, cl. 3; and guarantee of Equal Protection, id. amend. XIV, § 1.

The complaint and brief in support of the state's motion for leave to file a bill of complaint which is attached to the complaint seeks an order forcing California to take down its travel ban or remove Texas from it. Texas Attorney General's office has issued a press release announcing the filing of the suit.

Trump Extends Some Travel Ban Restrictions To Six More Countries

In an exceptionally long Presidential Proclamation (full text), President Trump on Friday extended tailored restrictions under his controversial travel ban to immigrants (but not temporary visitors) from six additional countries. As explained by a News Release from the Department of Homeland Security:

.... For four countries – Burma, Eritrea, Kyrgyzstan, and Nigeria – the President has imposed travel restrictions on immigrant visas.

The reason is straightforward – individuals who have entered the U.S. on immigrant visas are challenging to remove even if, after admission into the U.S., the individual is linked to disqualifying information such as terrorist connections, criminal ties, or misrepresented information. 

 And because each of these countries have deficiencies in sharing terrorist, criminal or identity information, it is likely that information reflecting that a visa applicant is a threat may not be available at the time the visa or entry is approved. This is unacceptable.

 Two countries – Sudan and Tanzania – performed marginally better and the President decided to impose travel restrictions on Diversity Visas.  This is a less severe sanction compared to the general restriction on immigrant visas, given the significantly fewer number of aliens affected....

... [T]his Proclamation only restricts entry on certain categories of immigrant visas. Family members can still visit their loved ones, businesses can still employ qualified candidates, and other visits can take place on a temporary basis with a non-immigrant visa.

DHS also issued this shorter news release. Vox has more on the President's action.

4th Circuit Hears Arguments In Challenge To Trump's Travel Ban

The U.S. 4th Circuit Court of Appeals yesterday heard oral arguments (audio of full oral arguments) in International Refugee Assistance Project v. Trump.  In the case, a Maryland federal district court refused to dismiss Establishment Clause, due process and equal protection challenges to President Trump's third travel ban Proclamation. (See prior posting.) The case had been remanded by the U.S. Supreme Court in light of its rejection of an Establishment Clause challenge in a parallel case. Brown County Democrat reports on the oral arguments.

Recent Articles of Interest

From SSRN:

• Hashika Durai & K. Niranjana, A Study on Religious Laws and Religious Crimes in India, (August 26, 2019).
• Cyra Akila Choudhury, Reflections on the Christchurch Massacre: Incorporating a Critique of Islamophobia and TWAIL, (TWAILR: Reflections - 9/2019).
• Perry Dane, Echad: A D’var Torah on Parshat Vaetchanan, (August 17, 2019).
• Mark Kelman, What is in a Name?, (Taxation and Regulation Across Constitutional Domains (Carolina Academic Press, 2019)).
• Richard W. Garnett, The Communitarian Work and Vision(s) of Robert Cochran (and Thomas Shaffer), (Pepperdine Law Review, Vol. 46, 2019).
• Thomas Charles Berg, Religious Freedom and the Common Good: A Summary of Arguments and Issues, (15 University of St. Thomas Law Journal 517 (2019)).
• Etienne Wain, The Blessing of Same Gender Relationships in the Anglican Church of Aotearoa New Zealand and Polynesia: A Mixed Blessing?, (Victoria University of Wellington Legal Research Paper (Sept. 2019)).
• Khaled Beydoun, The Ban and the Borderlands Within: The Travel Ban As a Domestic War on Terror Tool, (Stanford Law Review, Vol. 71, 2019).
• Shahnawaz Ahmed Malik, Minority Rights Protection in India; From Sachar Committee Recommendations to Mob Lynching, (Review Of Research Journal, 2018).
• Douglas NeJaime, The Constitution of Parenthood, (Stanford Law Review, Vol. 72, Forthcoming).

From SmartCILP:

• L. Darnell Weeden, A Functional Free Exercise Clause Analysis Requires a State To Prove a Compelling Interest Before Interfering With an Individual's Faith-Based Same-Sex Marriage Participation Objections, [Abstract], 18 Appalachian Journal of Law 113-150 (2018-2019).
• Rabea Benhalim, The Case for American Muslim Arbitration, [Abstract], 2019 Wisconsin Law Review 531-591.

District Court Says Challenge To Trump's Alleged Muslim Travel Ban May Proceed

In International Refugee Assistance Project v. Trump, (D MD, May 2, 2019), a Maryland federal district court, in a case on remand from the U.S. Supreme Court and the 4th Circuit, refused to dismiss Establishment Clause, due process and equal protection challenges to President Trump's third travel ban Proclamation. The Supreme Court's remand was ordered in light of its rejection of an Establishment Clause challenge in a parallel case (Hawaii II). In its latest decision, the district court said, however:

Notably, at no point in Hawaii II did the Supreme Court state that its conclusion that the Proclamation would satisfy rational basis review, based on the record before it and in the context of a motion for a preliminary injunction, required dismissal of the Establishment Clause claim in either that case or the present case. Indeed, two Justices, including one in the majority, identified the possibility that constitutional claims would proceed.

Setting out it reasons for allowing the constitutional challenges to now move ahead, the district court said in part:

Plaintiffs have provided detailed allegations for why the Proclamation is not rationally related to its stated national security interests and is instead grounded in the illegitimate and unconstitutional purpose of disadvantaging Muslims.

First, the Complaints provide detailed allegations of statements by the President exhibiting religious animus toward Muslims and articulating a desire to ban Muslims from entering the United States, including his statement as a presidential candidate that he planned to institute "a total and complete shutdown of Muslims entering the United States" and numerous later statements reaffirming this position... 

Contrary to the Government's claim during the hearing on the Motion, Hawaii II does not instruct courts to disregard these statements or any public pronouncements of a President, nor does it hold that the subjective intent of the President and his advisors in formulating and issuing the Proclamation is irrelevant. Rather, the Supreme Court specifically stated that this evidence "may be considered," so long as the "authority of the Presidency itself' is given its due....