Religion Clause Blog Gets Press Coverage

Religion Clause blog received press coverage today in the Detroit Legal News in an article titled Faith and light: Professor's blog helps keep 'church-state' debate alive.

NYT Investigates Religious Fundamentalism In Saudi Arabia Today

The New York Times carries a very long investigative piece on the state of fundamentalist Islam in Saudi Arabia today. Beginning on the front page of today's print edition, the article in the Times online edition is titled A Saudi Morals Enforcer Called for a More Liberal Islam. Then the Death Threats Began. It focuses in part on a former employee of the Commission for the Promotion of Virtue and the Prevention of Vice who earned the wrath of fundamentalists when he decided that much of what Saudis practice as religion is in fact merely Arabian cultural norms.

Recent Articles of Interest

From SSRN:

• Shaun Alberto de Freitas, Doctrinal Sanction and the Protection of the Rights of Religious Associations: Ecclesia De Lange v the Presiding Bishop of the Methodist Church of Southern Africa, (726/13) [2014] ZASCA 151 (July 1, 2016).
• Joanna Diane Caytas, Disposing of Relics: Overt and Covert Blasphemy Statutes in Europe, (Columbia Journal of European Law: Preliminary Reference (April 1, 2016)).
• Sylvia Ann Law, Scott Skinner-Thompson & Hugh Baran, Marriage, Abortion and Coming Out, (Columbia Law Review Sidebar, Vol. 116, Forthcoming).
• Lucia Ann Silecchia, Laudato Si' and Care for Our Common Home: What Does it Mean for the Legal Professional?, (6 Seattle J. of Envtl. L. 1 (2016)).
• Adedayo Damilola Oyebade, Human Rights Protection: A Panacea for the Use and Involvement of Women in Terrorism, (June 29, 2016).

From SmartCILP and elsewhere:

• Alex Reed, RFRA v. ENDA: Religious Freedom and Employment Discrimination, 23 Virginia Journal of Social Policy and Law 1-37 (2016).
• Vincent J. Samar, Toward a New Separation of Church and State: Implications for Analogies to the Supreme Court Decision in Hobby Lobby by the Decision in Obergefell v. Hodges, 36 Boston College Journal of Law & Social Justice 1-31 (2016).
• 21st International Law and Religion Symposium. Keynote address by Sen. Orrin G. Hatch; articles by Neville Rochow, Vanja-Ivan Savic, Asma T. Uddin and Jean-Paul Willaime; comments by students Jarom R. Jones & Zachary D. Smith. 2015 BYU L. Rev. 585-874.
• Joseph D. Kearney, The Supreme Court and Religious Liberty, 99 Marquette Law Review 427-445 (2015).
• Mark Strasser, Free Exercise and Substantial Burdens Under Federal Law. 94 Nebraska Law Review 633-684 (2016).
• Human Rights and the National Interest: The Case Study of Asylum, Migration, and National Border Protection. Article by Fr. Frank Brennan; response by Mary Ellen O'Connell. 39 Boston College International & Comparative Law Review 47-95 (2016).
• Women in the Revolution: Gender and Social Justice After the Arab Spring. Introduction by Adrien K. Wing; articles by Mounira Maya Charrad, Shafiqa Ahmadi, Karima Bennoune, Sahar F. Aziz, Seval Yildirim and Fatina Abdrabboh; roundtable participation by Adrien K. Wing, moderator; Fatina Abdrabboh, Shafiqa Ahmadi, Sahar F. Aziz, Karima Bennoune, Mounira Maya Charrad, Sara Ghadiri, Ahmad E. Souaiaia, Seval Yildirim, discussants; interview of Mounira Maya Charrad. 18 Journal of Gender Race & Justice 341-476 (2016).
• Symposium, Public Religion, Private Communities and Human Rights, Law & Ethics of Human Rights, Vol. 10, Issue 1 (May 2016).

Russian President Signs Anti-Terrorism Law That Restricts Religious Proselytizing

According to reports from USCIRF, Russia Religion News, and Forum18, last week Russian President Vladimir Putin signed into law a package of anti-terrorism measures that were passed by the Russian State Duma in late June. The measures, part of which place extensive new restrictions on religious missionary activity, take effect on July 20. As explained by USCIRF:

The anti-terrorism measures would, among other provisions, amend the 1997 Russian religion law by redefining "missionary activities" as religious practices that take place outside of state-sanctioned sites. The new law thus would ban preaching, praying, proselytizing, and disseminating religious materials outside of these officially-designated sites, and authorize fines of up to $15,000 for these activities conducted in private residences or distributed through mass print, broadcast or online media.  Foreign missionaries also must prove they were invited by state-registered religious groups and must operate only in regions where their sponsoring organizations are registered; those found in violation face deportation and major fines.

According to Forum18:

Another part of the package of laws sharply increases Criminal Code Article 282.2 punishments for those convicted of allegedly "extremist" activity, who are often Jehovah's Witnesses and Muslims who study the works of theologian Said Nursi. These punishments were last increased in February 2014.

[Thanks to Scott Mange for the lead.] 

Recent Prisoner Free Exercise Cases

In Gilbert v. Fox, 2016 U.S. Dist. LEXIS 86811 (D CO, June 9, 2016), a Colorado federal district court held that an inmate's claim that his free exercise rights are violated by refusal to recognize his Nuwaupian Certificate of Live Birth Name is a challenge to conditions of confinement and cannot be decided in a habeas corpus proceeding.

In Gadbury v. California, 2016 U.S. Dist. LEXIS 86891 (ED CA, July 1, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's attempt to obtain a vegetarian diet (which also meets his medical needs) for religious reasons.

In Ryan v. Graham, 2016 U.S. Dist. LEXIS 87477 (ND NY, July 5, 2016), a New York federal magistrate judge recommended dismissing a complaint by a Muslim inmate that his free exercise rights were infringed by limiting him to having eleven books in his cell while in special housing unit.

In Deen v. Albritton, 2016 U.S. Dist. LEXIS 87607 (ND CA, July 6, 2016), a California federal magistrate judge allowed a Muslim inmate to move ahead with his complaint that Muslim inmates are not allowed to pray in groups of more than four.

In Davis v. Bateman, 2016 U.S. Dist. LEXIS 88532 (ED PA, July 7, 2016), a Pennsylvania federal district court dismissed an inmate's complaint that he was denied access to attend religious services on four occasions. He had attended both Christian and Muslim services a total of 61 times.

In Pierre v. Geo Group, 2016 U.S. Dist. LEXIS 88698 (MD GA, June 3, 2016), a Georgia federal magistrate judge recommended that a Muslim inmate be permitted to move ahead with his complaint that he was forced to shave rather than being allowed to grow a beard as required by his religious beliefs.

Jehovah's Witnesses Win Another Round In Bid To Access Gated Communities In Puerto Rico

Watchtower Bible Tract Society of New York, Inc. v. Municipality of Ponce, (D PR, July 6, 2016), is the latest installment in a 12-year battle by Jehovah's Witnesses to gain access to gated communities in Puerto Rico in order to proselytize door-to-door.  In prior decisions, the federal courts have ordered communities to grant access to Jehovah's Witnesses.  However in response certain gated communities argued that they are not subject to the court's orders because their roads and streets are completely private.  In this 50-page opinion, a Puerto Rico federal district court ruled that the streets within Estancias del Golf Club in the Municipality of Ponce are subject to the court's earlier orders  The court said in part:

Up to 2012, the residents of EGC went above and beyond to complete the last steps of the transfer of their streets to the Municipality. Suddenly, they took a one hundred eighty degree turn and demanded their streets now be private, when it became convenient to them. This Court will not allow Plaintiffs’ First  Amendment protected activity to be held hostage by the whim of residents associations within gated communities....

It has become quite common for urbanizations and some of their residents to believe it is unacceptable to have non-residents walk the streets within their gated communities. This constitutes a discriminatory pattern that our Constitution forbids....  Community gates in Puerto Rico narrow the concept of community and of individual through decisions about group social worth and social threat, about who is redeemable and who is dispensable, about who is “good” and allowable, and about who is “bad” and made to “go away.”

Texas Proposes Rule Change On Handling of Fetal Tissue

As reported by Catholic News Agency, on July 1 the Texas Health and Human Services Commission proposed rule amendments (full text) that would change the way in which health care facilities dispose of fetal tissue from an abortion or miscarriage.  Fetal tissue, regardless of how early in a pregnancy, would need to be disposed of by cremation or burial, instead of being treated in the same way as other pathological waste. The proposed change comes less than one week after the U.S. Supreme Court struck down Texas' restrictive regulation of abortion clinics. (See prior posting.)

In New Suit, 10 States Challenge Feds' Interpretation of Transgender Rights

Yesterday, Nebraska and nine other states filed suit against the federal government challenging interpretations of the anti-discrimination provisions of Title VII and Title IX by the Department of Justice, the Department of Education, OSHA and the EEOC.  Federal agencies have asserted that the ban on discrimination on the basis of "sex" includes a ban on discrimination based on gender identity. The complaint (full text) in State of Nebraska v. United States, (D NE, filed 7/8/2016) contends that these interpretations were adopted in violation of the Administrative Procedure Act and various constitutional provisions.  Joining Nebraska in the lawsuit are Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota and Wyoming. Omaha World-Herald reports on the lawsuit. In May, eleven other states filed a similar lawsuit in federal district court in Texas. (See prior posting.)

Suit Alleges Grants For Church Preservation Projects Violate Massachusetts No-Aid Provision

A suit was filed yesterday against the town of Acton, Massachusetts by 13 of the town's residents and taxpayers challenging the town's approval of three Community Preservation grants to restore core facilities and religious imagery of two active local churches. The complaint (full text) in Caplan v. Town of Acton, Massachusetts, (MA Super. Ct., filed 7/7/2016) alleges that the grants violate Article XVIII, Section 2 of the Massachusetts Constitution that prohibits use of public funds "for the purpose of founding, maintaining or aiding any church, religious denomination or society." Grants to Acton Congregational Church funded a master plan for historic preservation of the 170-year old church building and for repair of major stained glass window's in the church's building. A grant to the South Acton Congregational Church funded roof repairs. Americans United issued a press release announcing the filing of the lawsuit. Boston Globe reports on the lawsuit.

Suit Challenges Michigan's Attempt To Dissuade Assertion of Religious Objection To Immunizations

In Michigan yesterday, the mother of four children filed a federal lawsuit challenging Michigan's rules regarding exemption from the state's immunization requirements for school children.  Mich. Comp. Laws § 333.9215 allows parents to obtain an exemption from the requirements by presenting school officials a written statement "to the effect that the requirements ... cannot be met because of religious convictions or other objection to immunization." The state Department of Health and Human Services (HHS) in 2014 adopted a rule (R 325.176(12)) requiring that any request for a non-medical exemption be certified by the local health department after giving the parents warning of the risks of their child not receiving vaccines.

The complaint (full text) in Nikolao v. Lyon, (ED MI, filed 7/7/2016), alleges that HHS has furnished local employees with a "Religious Waiver Note" providing them guidance on how to convince those with religious objections to nevertheless allow their children to be immunized. Plaintiff, a Catholic, contends that the Note contains misrepresentations about Catholic beliefs as to vaccination. She alleges further that when she went to the Wayne County health department to obtain certification of her religious objections, employees insisted that she needed to declare what religion she practices, explain her religious beliefs, and engage in a back and forth discussion with the ... nurse concerning her religious objection...." The complaint goes on:

54. Defendants attempted to use Mrs. Nikolao’s beliefs and adherence to Papal authority to coerce her into vaccinating her children by telling her lies about the Catholic faith and untrue Papal statements.

55. In the end ... Defendants refused to give Mrs. Nikolao a religious exemption, requiring her to mask her religious beliefs in the shroud of an “other” objection.

56. This façade on its own violated Mrs. Nikolao’s religion since, as a Catholic, she has a “grave responsibility . . . to make a conscientious objection with regard to those [vaccines] which have moral problems.”

Plaintiff claims that this violated her free exercise rights under the state and federal constitutions, the Establishment Clause and Michigan statutory law.  The Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Chaplains' Group Says New Military Policy On Transgenders Poses Religious Freedom Concerns

On June 30, Secretary of Defense Ash Carter announced that the ban on transgender individuals serving in the military is being lifted. (Links to DOD documents.) Those already in the military will be permitted to serve openly and will be provided appropriate medical care and treatment after receiving a diagnosis from a military medical provider indicating that gender transition is medically necessary. (Fact Sheet). The Chaplain Alliance for Religious Liberty issued a statement (full text) yesterday raising questions about the new policy. The statement reacts to a conference call with a Pentagon official, and reads in part:

The official said that such persons will be required to receive a medical statement from a military medical professional that they suffer from gender dysphoria.... 

An endorser on the call asked whether medical professionals who hold a biblical view on human sexuality will be required to violate their consciences and do as these persons demand, and the response was that it is the responsibility of medical professionals to serve military persons. It’s an understatement to say that this raises serious religious liberty concerns,” said Chaplain (COL) Ron Crews.... “The Department of Defense must ensure ... that doctors and nurses who hold to a biblical view of human sexuality can serve in today’s military...."

The official on the conference call went on to say that “mixed genitalia” will be present in military bathrooms, showers, and barracks because service members will be in various stages of change in their sexual identity.... Crews said. “Do we want our sons and daughters to be forced to share showers and sleeping spaces in a ‘mixed genitalia’ environment with no recourse for objections of conscience?”

USCIRF Criticizes China's Restrictions On Muslims During Ramadan

The U.S. Commission on International Religious Freedom yesterday issued a statement (full text) strongly criticizing restrictions imposed by the Chinese government on religious practices during Ramadan, ending with Eid al-Fitr. USCIRF Chair Thomas Reese, S.J. said:

The Chinese government once again has banned government employees, students, and children from fasting, and in some cases praying, during Ramadan.  While restrictions on Uighur Muslims’ religious practices take place year round, they are particularly onerous during Ramadan, giving lie to the government’s claim that Uighur Muslims in Xinjiang enjoy religious freedom.  They do not.  The Chinese government is violating its own constitution and international human rights standards by denying religious freedom to its citizens.

Obama Sends Eid al-Fitr Greetings

President Obama yesterday issued a statement (full text) sending greetings to the Muslim community on the arrival of Eid al-Fitr-- the holiday that marks the end of the month of Ramadan.  The President said in part:

Muslim Americans are as diverse as our nation itself—black, white, Latino, Asian, and Arab. Eid celebrations around the country remind us of our proud history as a nation built by people of all backgrounds; our history of religious freedom and civil liberties, and our history of innovation and strength. These legacies would not be possible without the contributions of Muslim Americans that make our country even stronger.

This past month, our country and the world endured challenges and senseless violence that broke our hearts and tried our souls.  Our prayers are with the hundreds of innocent lives, many of them Muslim, taken during the month of Ramadan in places like Orlando, Istanbul, Dhaka, Baghdad, and Medina. 

Here at home, we’ve also seen a rise in attacks against Muslim Americans. No one should ever feel afraid or unsafe in their place of worship. Many Americans have shared in the experience of Ramadan by volunteering in community service efforts to assist those in need and even fasting a few days with their fellow Muslim American co-workers. In the face of hate, it’s our American values and strength that bring us together to stand in solidarity and protect one another—thereby, making our Nation stronger and safer.

Muslim Americans have been part of our American family since its founding. This Eid, we recommit to protecting Muslim Americans against bigotry and xenophobia, while celebrating the contributions of Muslim Americans around the country, including one of our finest, the People’s Champion Muhammad Ali, to whom we bade farewell this Ramadan. Later this month, Michelle and I will host an Eid celebration at the White House and we look forward to welcoming Americans from around the country to celebrate the holiday.

NYC Human Rights Commission OKs Limited Women-Only Swimming Hours

As reported yesterday by dna info, the New York City Human Rights Commission has granted the city's Parks Department a limited exemption for gender anti-discrimination rules in order to accommodate religious objections to mixed gender swims at two of the city's pools.  Reserving a limited number of hours for women-only swimming to accommodate Hasidic Jewish women had become a controversial issue in recent weeks, with the New York Times last month editorializing against the practice. However now an HRC spokesman says:

Everyone in New York City should have an equal opportunity to enjoy recreation centers.  After weighing the Parks Department’s request for an exemption for limited women-only swimming hours at two Brooklyn pools and balancing the impact on the broader community, the Commission has granted a limited exemption. Maintaining limited women-only swim hours at these pools will allow all women to enjoy the pool without being asked to compromise their religious beliefs or affiliations and will have a minimal impact on other community members’ ability to access the pool.

The Parks Department though will substantially reduce the number of women-only swim hours to four hours per week.

Obergefell Decision Attacked By Suit Demanding License For Man-Object Marriage

As reported in a Liberty Counsel press release, in a rambling 44-page complaint filed last week Mark "Chris" Sevier, a Vanderbilt Law School graduate who was suspended from practice in 2011, filed suit challenging Kentucky's refusal to issue him a marriage license to allow him to marry his laptop computer.  Framed as a challenge to the U.S. Supreme Court's Obergefell decision, the complaint (full text) in Sevier v. Davis, (ED KY, filed 7/1/2016)) alleges in part:

The Plaintiff seek one of two forms of relief: (1) that the state be enjoined from enforcing any laws and policies that prevents him from legally marrying an inanimate object in light of the decision in Obergefell v. Hodge ... and United States v. Windsor ... or alternatively, (2) that all forms of marriage outside the traditional definition of marriage be nullified in reviving the original marriage laws and bans, since laws that try to establish the plausibility of gay rights violates the establishment clause of the first amendment....

If the plaintiffs request to many a machine is frivolous and "removed from reality," then certainly a man's request to many a man in order to call him his lawfully wedded wife in hopes that the society will whomp up more dignity for such marriages is equally "removed from reality" and culturally imperialistically arrogant. It is this kind of moral relativist that causes Middle Eastern Nations to hate the United States so much - because the adaptation of these values are a threat to the integrity of families - and they recognize that.

Sevier has previously filed similar lawsuits in Texas, Florida and Utah (see Above The Law). This time however he named as one of the defendants the equally adamant opponent of same-sex marriage, Rowan County Kentucky Clerk Kim Davis. (See prior posting.)  Alluding to this, the complaint alleges:

Unless total marriage equality is permitted as demanded by the Plaintiff, Mrs. Davis will have a valid cause of action under racketeering statutes against those who conspired to persecute and prosecute her maliciously as an an attempt to force her to convert to their sexually exploitative self-justifying world view.... Allowing the Plaintiff to marry an inanimate object will give those who put her in jail more credibility, since it will show that the Courts really believe that sexual orientation is based on civil rights matter and not an ideological religious one stemming from an attempt to legislate away feelings of shame and inadequacy.

Suit Challenges California's Elimination of Religious and Personal Belief Exemptions From Mandatory Immunization

A number of parents as well as several advocacy groups filed a lawsuit in a California federal district court last week challenging the constitutionality of California's SB 277, a law requiring school students (other than those being home-schooled) to be immunized against ten specific diseases, and removing the state's prior personal belief and religious belief exemptions. The law became effective on July 1. (See prior posting.) The complaint (full text) in Whitlow v. State of California, (SD CA, filed 7/1/2016) says that various plaintiffs have a variety of safety and religious objections to immunizations, including concern that some vaccines are manufactured with cell lines that began with aborted fetal cells. The complaint alleges that the new law violates a number of state and federal constitutional protections:

Defendants' conduct infringes on the Plaintiffs' and their children's fundamental rights, including parental rights, right to bodily integrity, right to informed consent and to refuse medical intervention, right to privacy, and/or right to free exercise of religion, by requiring Plaintiffs to choose between those rights and the right to education.

Los Angeles Times reports on the lawsuit.

UPDATE: The court denied a temporary restraining order, finding there were no allegations of immediate harm. Also there were no efforts to serve defendants. Whitlow v. California, 2016 U.S. Dist. LEXIS 86848 (SD CA, July 5, 2015).

Church Sues Iowa Officials Over Transgender Access Rules

In Iowa yesterday, a conservative Christian church filed a federal lawsuit against officials of the Iowa Civil Rights Commission and against the city of Des Moines alleging that their anti-discrimination laws requiring transgender access to restrooms and changing rooms consistent with gender identity violate its 1st and 14th Amendment rights.  The complaint (full text) in Fort Des Moines Church of Christ v. Jackson, (SD IA, filed 7/4/2016) focuses on the following Iowa Civil Rights Commission's interpretation of its public accommodation rules:

Sometimes. Iowa law provides that these protections do not apply to religious institutions with respect to any religion-based qualifications when such qualifications are related to bona fide religious purpose. Where qualifications are not related to a bona fide religious purpose, churches are still subject to the law’s provisions. (e.g. a child care facility operated at a church or a church service open to the public).

The complaint alleges that the church invites the public to all its services and events, and that even those that are not overtly religious nevertheless "engender other important elements of religious meaning, expression, and purpose." It goes on to allege in part:

13. The Church believes and teaches that maleness or femaleness is designed by God and is tied to biology, chromosomes, physiology, and anatomy.

14. The Church’s religious beliefs mandate that sex is an immutable trait from which springs the natural and healthy desires for physical privacy and modesty in states of partial or full undress, such as in restrooms, showers, and changing rooms.

15. The Church recognizes that some individuals do not identify with their biological sex, and the Church welcomes those individuals, wants to be a blessing to them, and wants to minister to them.

16. The Act and City Code prohibit the Church from issuing statements that might cause individuals to believe that they are unwelcome because of their perceived gender identity.

17. The language of the Act and the City Code are broad enough to include within that prohibition sermons, theological expositions, educational speeches, newsletters or church worship bulletin text, or other statements from the Church and its leaders....

27. Allowing biological males to use facilities reserved for women and girls, and vice versa, violates the Church’s religious beliefs about human sexuality.

Des Moines Register reports on the lawsuit.

UPDATE:  Shortly after the lawsuit was filed, the Iowa Civil Rights Commission revised its interpretive pamphlet (full text) to read:

Places of worship (e.g. churches, synagogues, mosques, etc.) are generally exempt from the Iowa law’s prohibition of discrimination, unless the place of worship engages in non-religious activities which are open to the public. For example, the law may apply to an independent day care or polling place located on the premises of the place of worship.

DC Circuit In Procedural Reversal Allows Religious Discrimination Suit To Proceed

In Al-Saffy v. Vilsack, (DC Cir., July 1, 2016), the U.S. Court of Appeals for the D.C. Circuit reversed the district court and allowed a religious and national origin discrimination claim against both the Department of Agriculture and the Department of State to proceed.  As stated by the court, "Determining whether Al-Saffy’s lawsuit was properly brought requires us to navigate a quagmire of procedural rules."  BNA Daily Labor Report summarizes the court's holding:

Mohamed Tahwid Al-Saffy raised genuine factual issues about whether Agriculture and State were his joint employers when he directed the trade offices in Saudi Arabia and Yemen.... Although Al-Saffy wasn't “officially employed” by the State Department, he reported directly to the ambassadors of Saudi Arabia and Yemen, who are State employees, the court said.....

The court also rejected arguments that Al-Saffy did not file his lawsuit in a timely manner.  Again BNA summarizes the court's holding:

An EEOC order that omits that required information can't trigger the 90-day deadline, the court said. Al-Saffy therefore retained the option to sue at any time after 180 days had elapsed from his filing of the original administrative complaint....

Israeli Court Says Shouting Allahu Akbar Can Amount To Breach of Peace

In Israel last week, a Jerusalem Magistrate's Court ruled that shouting Allahu akbar (God is great) at a group of Jews on the Temple Mount can be the basis for a conviction for disturbing the peace. According to The Algemeiner, the court wrote in part:

[chanting] Allahu akbar during prayer, at a site of prayer and in the spot in the prayer [book] where it is called for does not constitute a breach of the peace, but a fundamental right. However, when those calls are used as a form of demonstration or protest, or as a way of creating a riot or unrest, they do not constitute prayers and are therefore a clear disturbance of the peace.

German Court Says Legal Intern Can Wear Hijab

In Germany last week, a high-ranking law graduate who encountered a ban on wearing her hijab after she had begun her internship with the Bavarian judicial system won a court victory, at least for now.  According to The Local:

The battle started after [Aqilah] Sandhu successfully completed her state exams and started a traineeship with the Bavarian judicial system.

In July 2014, the highest court in the state sent her a letter informing her that she was forbidden from interrogating witnesses or fulfilling other legal duties as long as she continued to wear a headscarf....

She immediately asked for an explanation of the ban, to which she was told “[religious] clothing and symbols can impair the trust in the religious neutrality of the administration of justice.”...

Judge Bernhard Röthinger decided that the young lawyer was in the right, agreeing that there was no legal basis for the state's attack on her religious freedom.

Sandhu is now seeking damages.  However  the state says it will appeal.