Iowa Asks Its Supreme Court To Follow Dobbs On Standard Of Review For Abortion Regulation

As previously reported, last month the Iowa Supreme Court in Planned Parenthood of Heartland, Inc. v. Reynolds overruled its own 2018 decision and held that neither the due process nor the equal protection clause of Iowa's constitution grants a fundamental right to an abortion. It thus rejected subjecting abortion regulation to strict scrutiny under the state Constitution, but did not decide what level of scrutiny should apply. Now that the U.S. Supreme Court in Dobbs has held that the standard of review under the federal constitution for abortion regulation is rational-basis review, the state has filed with the Iowa Supreme Court a petition for rehearing (full text) in Planned Parenthood of Heartland asking the Court to now hold that rational-basis review is also the correct standard under the Iowa Constitution for review of abortion regulations. ADF issued a press release announcing the filing.

Break-Away Faction In Church of God Not Entitled To Property Ownership

In Blue v. Church of God Sanctified, Inc., (TN App., June 27, 2022), a Tennessee state appellate court held that in a property dispute between a break-away faction of a local Church of God and the National Body (as well as a faction loyal to the National Body, labeled the Mother Church), the National Body and its local adherents own church property.  The court said in part:

 We agree with the trial court’s determination that as a matter of ecclesiastical government, the procedure for separation of an affiliated member church from a hierarchical church organization is an issue over which civil courts do not have subject matter jurisdiction.... The trial court did not err in declining to exercise subject matter jurisdiction over Local Church’s initial request for a judgment declaring it to be a separate entity from the National Body....

The court went on to apply the "hybrid neutral principles" approach to affirm the trial court's conclusion that the local church property belongs to the National Body. It described the "hybrid neutral principles" approach:

 “[u]nder this approach, courts defer to and enforce trust language contained in the constitutions and governing documents of hierarchical religious organizations, even if this language of trust is not included in a civil legal document and does not satisfy the formalities that the civil law normally requires to create a trust.”

The court concluded:

 Although no ecclesiastical judgment is in the record, we conclude that the evidence presented at the summary judgment stage demonstrates that the National Body considered Mother Church to be the congregation entitled to possession and use of the Property.... Moreover, as the trial court found, Local Church had already sought disaffiliation from the National Body and had “appointed [its] own pastor, deacons, and trustees outside of the requirements of the [Manual].” We therefore defer to the National Body’s determination, acting through Bishop Hill, that Mother Church is the congregation entitled to possession and use of the Property and its associated personalty.

Lesson On Ancient Mesopotamia Did Not Violate Establishment Clause

In Ervins v. Sun Prairie Area School District, (WD WI, July 1, 2022), a Wisconsin federal district court rejected a claim that a 6th-grade lesson on ancient Mesopotamia which called on students to apply the Code of Hammurabi to a hypothetical situation amounted to a violation of the Establishment Clause.  The assignment, which coincided with the first day of Black History Month, caused outrage because it involved the death penalty for a defiant slave. The court said in part:

[T]eaching Hammurabi’s Code was not religious education, it was a history lesson.... Neither the school district nor the teachers who used the Mesopotamia materials promoted or endorsed Hammurabi’s Code as a viable moral code or a religious way of life. No reasonable jury could accept plaintiff’s contention that the district forced students to “engage in religion” by asking them to answer in the first person how they would punish a slave....

... [E]ven if all of Mesopotamian culture was theologically based, the teaching of that historical period would not constitute a governmental endorsement of Mesopotamian theology.

The court also rejected Title VI and 14th Amendment claims.

Biden Appoints Imam To USCIRF

Last Friday, President Biden appointed Mohamed Hag Magid to the U.S. Commission on International Religious Freedom. Imam Magid, among other things, is Executive Religious Director of All Dulles Area Muslim Society Center, is Chairman of International Interfaith Peace Corps and is the former President of the Islamic Society of North America. USCIRF is comprised of 9 commissioners, 3 of whom are appointed by the President.

University's No-Contact Orders To 3 Christian Students Violate Free Speech Rights

In Perlot v. Green, (D ID, June 30, 2022), an Idaho federal district court issued a preliminary injunction requiring the University of Idaho to rescind no-contact orders issued to three law students who are members of the Christian Legal Society and a limited-contact order issued to a faculty member who is the CLS advisor. Defendants were also barred from issuing future no-contact orders based on pure speech alone. The action, taken by the University because of its interpretation of Title IX provisions, were based on conversations or remarks by the students to a female LGBTQ student on the Christian biblical view of marriage and sexuality. The parties dispute the exact content of those remarks. The female student told university officials that she felt targeted and unsafe. The court said in part:

Defendants issued the no-contact orders to Plaintiffs because Plaintiffs discussed their sincerely held religious beliefs about marriage and because they discussed religious discrimination. Thus, it appears the no-contact orders apply to Plaintiffs because of the “message expressed.” ...

Similarly, Defendants’ orders targeted the viewpoint of Plaintiffs’ speech. Both students and professors expressed opposing viewpoints to the views expressed by Plaintiffs without any type of intervention, let alone punishment..... Thus, while all of these parties’ speech was on the same topic, only one viewpoint—Plaintiffs—was deemed worthy of intervention and discipline.....

Instead of focusing on sexual harassment, Defendants focus on harassment in general and argue that people have a right to be free from being bothered. Title IX does not provide such a right....

... The Court in Hill made a clear distinction between the right to attempt to persuade others to change their views and offensive speech that is so intrusive that the unwilling audience cannot avoid it. The right to free speech cannot be curtailed simply because the speaker’s message may be offensive to his audience....

In a footnote, commenting on a faculty member's statement that religious beliefs are not an excuse to deprive others of their rights, the court said:

Phrases such as this have taken root in recent years and paint an overtly negative picture of religious liberty. The assumption such phrases implicate is that people use their religion to mask discriminatory conduct and then try to “hide” from any legal consequences by invoking religious protection. The Court will not dissect why this assumption is a shallow look at religion, and fails to provide any substance to numerous individual constitutional rights. Suffice it to say, in a pluralistic society, people should honor differing viewpoints and build bridges of understanding instead of arguing that opposing viewpoints are inherently discriminatory and must be punished or excluded from the public square.

Recent Articles of Interest

From SSRN:

• Kellen Funk, Propertied Rites, (36 Constitutional Commentary 175 (2021)).
• Gregory Velloze, The Single Religion Clause: Non-Established, Free, and Independent Exercise, (June 24, 2022).
• Max Deardorff, Synods and Councils of the Hispanic World, 1300-1700, (Max Planck Institute for Legal History and Legal Theory Research Paper Series No. 14 subsidia et instrumenta, 2022).
• Francis Beckwith, Lemon v. Kurtzman at 50, (Law & Liberty (June 1, 2021)).
• Clark D. Cunningham, "Abortion" in the Founding Era: A Reply to Methodological Critiques of Miller & Bacallao, Justice Alito's Question, (Georgia State University College of Law, Legal Studies Research Paper Forthcoming).
• Cass R. Sunstein, Dobbs and the Travails of Due Process Traditionalism (June 24, 2022).
• Jeremy Waldron, Denouncing Dobbs and Opposing Judicial Review, (June 10, 2022).

ADA Does Not Justify Lower Priority For Employees With Religious, Rather Than Disability, Exemptions From Vaccine Mandate

In UnifySCC v. Cody, (ND CA, June 39, 2022), a California federal district court granted a preliminary injunction barring enforcement of one portion of a California county's complex policy on accommodating county employees who have exemptions from the county's COVID vaccine mandate. While upholding significant portions of the county's policy, the court found Free Exercise problems with one part of the arrangement. Exempt employees in high-risk job settings were placed on administrative leave, with the possibility of being transferred to a lower risk job setting. The county gave priority in obtaining a lower-risk position to those with medical and disability exemptions over those with religious exemptions, arguing that this was required by the Americans With Disabilities Act and comparable California regulations. However, the court said in part:

Even if federal or California disability law requires priority consideration of disabled applicants for open government positions, the County cannot grant that class of individuals priority consideration over those with religious exemptions in violation of the First Amendment....

The different reasons for an exemption do not affect the amount of risk the exempt employees pose to other employees or the populations the County serves. Accordingly, the Court finds that it is more likely than not that while the general Accommodations framework is facially and operationally neutral, the part of the framework that prioritizes employees in high-risk roles with secular exemptions over those with religious exemptions for consideration for vacant County positions is not neutral....

Supreme Court Denies Review In New York Vaccine Mandate Case

Last Thursday, the U.S. Supreme Court denied review in Dr. A v. Hochul, (Sup. Ct., certiorari denied 6/30/2022). This is another of the many cases that contend COVID vaccine mandates-- this time for New York healthcare workers-- with medical, but without religious, exemptions violate the Free Exercise clause. Justice Thomas, in an opinion joined by Justices Alito and Gorsuch, dissented from the denial of certiorari, saying in part:

[T]here remains considerable confusion over whether a mandate, like New York’s, that does not exempt religious conduct can ever be neutral and generally applicable if it exempts secular conduct that similarly frustrates the specific interest that the mandate serves. Three Courts of Appeals and one State Supreme Court agree that such requirements are not neutral or generally applicable and therefore trigger strict scrutiny. Meanwhile, the Second Circuit has joined three other Courts of Appeals refusing to apply strict scrutiny. This split is widespread, entrenched, and worth addressing.

This case is an obvious vehicle for resolving that conflict.

The Supreme Court last December, by the same 6-3 vote, had denied an injunction pending the Supreme Court's review of the certiorari petition. (See prior posting.)

Court Enforcement Of Divorce Agreement Involving Acceptance of "Gett" Creates No Free Exercise Problem

In Mishler v. Mishler, (TX App., June 30, 2022), a Texas state appellate court held that there is no state or federal free exercise problem with a divorce decree, based on the parties prior agreement, that certain property would be delivered by the husband to the wife only upon the wife's acceptance of a "Gett" (Jewish divorce document that the wife must accept in order for the divorce to be valid under Jewish religious law).

Florida Judge Says 15-Week Abortion Ban Violates State Constitution

Palm Beach Post and Florida ACLU report that yesterday, a Florida state circuit court judge ruled from the bench that Florida's ban on abortions after 15 weeks of pregnancy violates the Florida Constitution's protection of the right of privacy. However the judge has not yet issued a formal written opinion or entered a preliminary injunction, so the 15 week ban will go into effect today until an injunction actually issues.

Indiana Supreme Court Hears Arguments In Suit By Fired Catholic School Teacher

Last Tuesday, the Indiana Supreme Court heard oral arguments in  Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc. (video of full oral arguments). In the case, an Indiana state appellate court reversed the dismissal of a suit by a former teacher in a Catholic high school who claimed that the Archdiocese intentionally interfered with his contractual and employment relationships with the school. After plaintiff married his same-sex partner, the Archbishop insisted that the school terminate his teaching contract or else it could no longer designate itself as "Catholic." (See prior posting). Indiana Public Media reports on the case.

Suit Seeks To Block Ohio's Heartbeat Abortion Law

 An original action seeking a writ of mandamus was filed in the Ohio Supreme Court this week by several abortion providers seeking to block enforcement of Ohio's 6-week Heartbeat abortion law and reinstate the state's former 20-week provision.  The complaint (full text) in State ex rel Preterm- Cleveland v. Yost, (Ohio Sup. Ct., filed 6/28/2022), contends various provisions in the Ohio Constitution  protect abortion rights:

12. The Ohio Constitution’s Due Course of Law Clause, when read together with other distinctive provisions, including Article I, Sections 1, 16, and 21, establishes an independent right to abortion under the Ohio Constitution. That right is infringed by S.B. 23.

13. Captured within the substantive due process rights protected by the Due Course of Law Clause are the rights to reproductive autonomy and bodily integrity....

14. Likewise, Ohio’s Equal Protection and Benefit Clause provides broader protections than its federal analogue.

Ohio Capital Journal reports on the lawsuit.

Britain's Employment Appeals Tribunal Rules Against Doctor Who Refused To Use Preferred Pronouns For Transgender Individuals

In Mackereth v. Department for Work and Pensions, (EAT, June 29, 2022), Britain's Employment Appeal Tribunal rejected a Christian doctor's claim that the policy of his government agency employer requiring him, as a disability benefits assessor, to refer to transgender claimants by their preferred pronoun amounted to illegal discrimination and harassment. While disagreeing with some of the conclusions of the Employment Tribunal (ET) below, the 61-page opinion which turns on doctrines developed under Britain's Equality Act, accepts the ultimate conclusion of the ET.  The Appellate decision is summarized by an article in Personnel Today which says in part:

Mackereth’s beliefs are based on what the bible says in Genesis 1:27; that we are born male and female and that a person cannot change their sex or gender. This belief conflicted with DWP’s policies....

...[T]he EAT ruled that Mackereth’s belief is protected under the Equality Act and Human Rights Act. Nevertheless, the judgment notes his belief could be deemed offensive....

... Justice Eady stated that the employment tribunal had properly taken account of the context in which Mackereth had expressed his beliefs and had carefully evaluated DWP’s concerns with them being expressed in his role.

The judgment says: “Given the particular context, it could not be said that the ET had erred in finding the measures adopted by the respondents were necessary and proportionate to meet a legitimate focus on the needs of potentially vulnerable service users, and on the risks to those individuals and, in consequence, to the respondents.

Portable Sign Ban Violates First Amendment

 In LaCroix v. Town of Fort Myers Beach, Florida, (11th Cir., June 28, 2022), the U.S. 11th Circuit Court of Appeals preliminarily enjoined a town's ban on all portable signs. The ordinance was challenged by plaintiff who was cited for carrying a sign on a public sidewalk that conveyed his "religious, political and social message" that Christianity offers hope and salvation. The court said in part:

The Ordinance’s ban on portable signs is content-neutral. But portable, handheld signs still are a rich part of the American political tradition and are one of the most common (if not the most common) methods of free expression. The ban on these signs leaves the residents of Fort Myers Beach without an effective alternative channel of communication; it very likely violates the First Amendment.

WINK News reports on the decision.

Maine AG Says Christian Schools May Still Be Ineligible For Tuition Assistance Program

 As previously reported, last week in Carson v. Makin, the U.S. Supreme Court held that sectarian schools could not be excluded from Maine's tuition aid program that is open to nonsectarian private schools. In a press release posted immediately after the Court's decision, Maine's Attorney General said that many religious schools may still not be able to participate in the program because they:

refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff....  Educational facilities that accept public funds must comply with anti-discrimination provisions of the Maine Human Rights Act, and this would require some religious schools to eliminate their current discriminatory practices.

Insurance Journal reports that in response to the AG's statement, a spokesperson for the American Association of Christian Schools said:

We don’t look at it as discrimination at all. We have a set of principles and beliefs that we believe are conducive to prosperity, to the good life, so to speak, and we partner with parents who share that vision....

EEOC Sues Company Over Requiring Employees To Attend Prayer Meetings

The EEOC announced yesterday that it has filed a religious discrimination lawsuit against North Carolina-based Aurora Pro Services. It explained:

[T]he company required all employees to attend daily employer-led Christian prayer meetings. The meetings were conducted by the company owner and included Bible readings, Christian devotionals, and solicitation of prayer requests from employees. Aurora’s owner took roll before some of the meetings and reprimanded employees who did not attend. When a construction manager asked to be excused from the prayer portion of the meetings in the fall of 2020, the defendant company refused to accommodate the employee’s religious beliefs (atheist), cut his pay, and fired him. A few months later, in January 2021, Aurora terminated a customer service representative who stopped attending the prayer meetings because the meetings conflicted with her religious beliefs (agnostic).

Church Autonomy Doctrine Bars Inquiry Into Pretext Claim In Catholic School's Firing Of Teacher

In Butler v. St. Stanislaus Kostka Catholic Academy, (ED NY, June 27, 2022), a New York federal district court dismissed a sexual orientation discrimination lawsuit brought by Cody Butler, a teacher of English Language Arts and Social Studies who was fired from his Catholic school teaching position shortly after he was hired. After his first teacher orientation session, Butler e-mailed the principal saying that the orientation made him uncomfortable because he is homosexual and plans in the future to marry his boyfriend. Within days, Butler was given a letter of termination.  The court dismissed the suit on both ministerial exception and church autonomy grounds. As to the ministerial exception, the court said in part:

[E]xtensive evidence leaves no doubt that Butler’s job did, and would have continued to, include important ministerial duties....

Butler argued that the school's claim he was fired because his intended same-sex marriage which violated church doctrine was a pretext for firing him because of his sexual orientation. The court said in part:

[T]he only way for the jury to find pretext would be to question the Church’s explanation of religious doctrine, or to question how much that particular religious doctrine really mattered to the Church. To do so, however, would violate the church-autonomy principle.... 

The bottom line is that courts have long recognized the church-autonomy doctrine, and no binding authority has ever said that the ministerial exception eclipses this doctrine in employment-discrimination cases.... I am constrained to conclude that no such limitation exists. Under controlling case law, the church autonomy doctrine applies in the employment-discrimination context, as it does elsewhere. And this principle forecloses judicial inquiry  into the plausibility of St. Stans’ asserted religious justifications in this case....

[Thanks to Mark Chopko for the lead.]

Kosher Certification Agency Sues Airline For Unauthorized Use Of Trademarked Symbol

Suit was filed last week in a New Jersey federal district court by Kof-K, a kosher certification agency, against JetBlue Airways claiming that the airline used the agency's certification symbol without authorization on a pre-packaged in-flight artichoke snack.  The complaint (full text) in Kosher Supervision Service, Inc. v. JetBlue Airways Corp., (D NJ, filed 6/23/2022), alleges trademark infringement and other trademark violations,  unfair competition and consumer fraud. As reported by The Observer, Kof-K does not contend that the snack was not kosher. It merely contends that it had not certified it as such.

Proposed Rule Amendments Say Title IX Bars LGBT Discrimination

Last Thursday, the Department of Education issued a 700-page Release (full text) proposing amendments to the regulations implementing Title IX which bars sex discrimination in education programs or activities that receive federal funding. Among other things, a new rule, 34 CFR 106.10, would provide:

Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

Certiorari Denied In Christian Ministry's Challenge To Defamation Standard

Yesterday the U.S. Supreme Court denied review in Coral Ridge Ministries Media, Inc. v. Southern Poverty Law Center, (Docket No. 21-802, certiorari denied 6/27/2022). In the case, the U.S. 11th Circuit Court of Appeals affirmed an Alabama federal district court's dismissal of a defamation suit brought by a Christian ministry and media company. Coral Ridge is designated as a "hate group" by the Southern Poverty Law Center because of Coral Ridge's religious beliefs opposing LGBTQ conduct. The Circuit Court dismissed the defamation claim because plaintiff failed to adequately plead actual malice (i.e., knowledge of falsity or reckless disregard of the truth). Justice Thomas filed an opinion dissenting from the denial of certiorari, saying in part:

I would grant certiorari in this case to revisit the “actual malice” standard. This case is one of many showing how New York Times and its progeny have allowed media organizations and interest groups “to cast false aspersions on public figures with near impunity.” ... SPLC’s “hate group” designation lumped Coral Ridge’s Christian ministry with groups like the Ku Klux Klan and Neo-Nazis. It placed Coral Ridge on an interactive, online “Hate Map” and caused Coral Ridge concrete financial injury by excluding it from the AmazonSmile donation program.

Law & Crime reports on the case.