Michigan Abortion Rights Amendment Faces Possible Ballot Exclusion Because of Typographical Formatting Errors

Earlier today, the Michigan Board of State Canvassers deadlocked 2-2, along party lines, in its vote on approving for inclusion on the November ballot an abortion rights state constitutional amendment. As reported by the Detroit Free Press, while backers had obtained far more than the minimum number of petition signatures need for inclusion on the ballot, challengers focused on the formatting of the text of the proposed amendment on the petition which erroneously ran several words together so that there were no spaces between the words. The Board of State Canvassers staff report said in part:

The Michigan Constitution of 1963 requires that the “petition shall include the full text of the proposed amendment”....

The RFFA petition includes the same letters, arranged in the same order, as the petition conditionally approved at the March 23rd Board meeting... Certain portions of the petition have smaller spaces between words; the spacing between words in some instances appears similar to the spacing between letters within words. The Michigan Election Law is silent on the amount of space that must be between letters and words in a petition.

Challengers argued that because of these typographical errors, the petitions do not contain the full text of the proposed amendment.

Under MCL §168.479, a decision of the Board of State Canvassers may be challenged by a petition filed with the state Supreme Court within 7 days of the decision. The group sponsoring the amendment, Reproductive Freedom For All, has already announced that it will appeal to the Michigan Supreme Court.

Another Lawsuit Over Touro Synagogue Dismissed On A Technicality

Providence Journal reports on the latest legal scuffle over the historic Touro Synagogue which is owned by New York's Shearith Israel congregation, but which has been the home of Rhode Island-based Congregation Jeshuat Israel. (See prior related posting.) Shearith Israel had filed an action to evict Jeshuat Israel, though Shearith Israel says it was merely trying to obtain more transparency and two seats on Jeshuat Israel's 15-person board. A Rhode Island state trial court judge seized on a technicality to dismiss the eviction action. Judge Colleen Hastings concluded in an Aug. 29 decision that the eviction notice ordered Jeshuat Israel to vacate the premises on January 31, the last day of its lease, while it should have ordered it to vacate on February 1, the day after the lease expired. Apparently this latest controversy arose when the New York congregation discovered that a tombstone had been erected in the Rhode Island synagogue's cemetery for New York businessman, diplomat and philanthropist John Loeb, though Loeb is still alive. Loeb contributed $12 million for the building of the visitor center at Touro Synagogue.

Religious Discrimination Claims Against Child Protective Services Meet Procedural Hurdles

In Gautreaux v. Masters, (WD TX, Aug. 29, 2022), a Texas federal magistrate judge recommended that the court dismiss some or all of the free exercise and due process claims brought by foster parents who were accused by the Texas Department of Family and Protective Services (DFPS) of child abuse. The opinion describes plaintiffs' allegations:

[DFPS] asked the couple to identify their religion during the application process, and they identified themselves as practicing members of the Church of Jesus Christ of Latterday Saints.... Gautreaux alleges that DFPS demonstrated "hostility toward the Gautreauxes' religion" at their initial interview, while their follow-up interview "exclusively concerned the Gautreauxes' religious practices and beliefs."...

... DFPS informed Gautreaux that the department had found there was "reason to believe" she had committed the alleged abuse, resulting in Gautreaux being placed on the DFPS central registry "as a child abuser." ... Gautreaux alleges that DFPS's decision was motivated by religious "animus" and that there was no evidence of abuse to support the finding....

Gautreaux alleges that she is unable to practice her religion as a result of her placement on the DFPS central registry. Specifically, Gautreaux alleges that she cannot participate in her "calling" - an assignment made by Church leaders - which is to "teach singing to children in her local church."

In a lengthy opinion, the Magistrate Judge recommended either that all the claims be dismissed under the Younger abstention doctrine, or alternatively that most of plaintiffs' free exercise claims be dismissed because of 11th Amendment sovereign immunity. Under the alternative recommendation, the court could move ahead on  claims challenging DFPS's policies of considering religious beliefs and practices as a concern in abuse investigations and its disregarding of inconsistent court rulings.

7th Circuit: Plaintiffs Failed To Show Facts Supporting Free Exercise Objections To COVID Vaccine Mandate

In Lukaszczyk v. Cook County, (7th Cir., Aug. 29, 2022), the U.S. 7th Circuit Court of Appeals, ruling on three separate district court cases, refused to order preliminary injunctions against local and state COVID vaccine mandates.  The court said in part:

The plaintiffs argue the mandates violate their constitutional rights to substantive due process, procedural due process, and the free exercise of religion. They also contend the mandates violate Illinois state law. Although the plaintiffs could have presented some forceful legal arguments, they have failed to develop factual records to support their claims. Because the plaintiffs have not shown a likelihood of success on the merits, we affirm the decisions of the district judges....

Discussing plaintiffs' Free Exercise claims, the court said in part: 

[I]f these assertions have merit, there is no record evidence to support them. The plaintiffs should have gathered facts and created a record detailing any wrongful denials of requests for religious exemptions. Instead, they made a facial challenge, which ignored the text of the policy’s religious exemption and the status of the plaintiffs’ exemption requests. This does not show a violation of their right to freely exercise their religions.

9th Circuit: High School Must Recognize Fellowship of Christian Athletes

In Fellowship of Christian Athletes v. San Jose Unified School District Board of Education, (9th Cir., Aug. 29. 2022), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, ordered reinstatement of the Fellowship of Christian Athletes as an official student club at San Jose high schools.  The majority said in part:

This case pits two competing values that we cherish as a nation: the principle of non-discrimination on the one hand, and the First Amendment’s protection of free exercise of religion and free speech on the other hand.

The Fellowship of Christian Athletes (FCA) requires students serving in leadership roles to abide by a Statement of Faith, which includes the belief that sexual relations should be limited within the context of a marriage between a man and a woman. The San Jose Unified School District ... revoked FCA’s status as an official student club at its high schools, claiming that FCA’s religious pledge requirement violates the School District’s non-discrimination policy.

... Under the First Amendment, our government must be scrupulously neutral when it comes to religion: It cannot treat religious groups worse than comparable secular ones. But the School District did just that.

The School District engaged in selective enforcement of its own non-discrimination policy, penalizing FCA while looking the other way with other student groups. For example, the School District blessed student clubs whose constitutions limited membership based on gender identity or ethnicity, despite the school’s policies barring such restricted membership. The government cannot set double standards to the detriment of religious groups only.

Judge Lee filed a concurring opinion, saying in part:

One schoolteacher called the Fellowship of Christian Athletes’ (FCA) beliefs “bullshit” and sought to ban it from campus. Another described evangelical Christians as “charlatans” who perpetuate “darkness” and “ignorance.”...

This is not, to put it mildly, neutral treatment of religion. More than a whiff, a stench of animus against the students’ religious beliefs pervades the Pioneer High School campus. I write separately to highlight the depth of that animus and explain why it is yet another reason why the School District violated the Free Exercise Clause.

Judge Christen dissented, saying in part:

My colleagues are correct that the competing values at issue in this case are cherished by our nation and enshrined in our Constitution. The plaintiffs will surely have their day in court for their claims of past harm. Once they do, the court will have to consider both the plaintiffs’ rights and the rights of those they would exclude. Notably, the majority offers no limiting principle to the permission it grants allowing one club to discriminate. In the meantime, we are not free to contort our standing jurisprudence in order to prematurely reach the merits and we ought not do so in a case of this magnitude before the record has been developed and tested.

NYC Vaccine Mandate Upheld

In Kane v. DeBlasio, (SD NY, Aug. 26, 2022), a New York federal district court rejected a challenge by New York City teachers, administrators and staff to New York City's public employee COVID vaccine mandate. They claimed the mandate violates their 1st and 14th amendment rights.  Discussing plaintiffs' free exercise claim, the court said in part:

The Second Circuit has already found that “[t]he Vaccine Mandate, in all its iterations, is neutral and generally applicable.”...

Ignoring the fact that the pandemic has claimed the lives of more than a million people in the United States, plaintiffs take the bold position that the Mandate has the “express purpose of inflicting special disability against minority religious viewpoints,” ... rather than its obvious and explicit goals to ... “potentially save lives, protect public health, and promote public safety.”...

Plaintiffs’ arguments that the Vaccine Mandate is not generally applicable again rely on arguments that the Second Circuit already rejected. 

Christian Healthcare Organization Sues Over Michigan Non-Discrimination Law

Suit was filed yesterday in a Michigan federal district court by a faith-based healthcare organization contending that Michigan's employment discrimination law violates its free exercise, free speech and due process rights. The 73-page complaint (full text) in Christian Healthcare Centers, Inc. v. Nessel, (WD MI, filed 8/29/2022), contends in part:

Under the guise of stopping discrimination, the law discriminates against religious organizations, requiring them to forfeit their religious character and hire people who do not share their faith. That same law also forces Christian Healthcare to prescribe cross-sex hormones and refer to patients in communications and medical records according to their stated gender identity, rather than their biological sex. All of this violates Christian Healthcare’s religious convictions. In effect, the law requires Christian Healthcare to check its religious faith at the clinic door—the very faith that motivates the clinic to open its doors to help those in need....

290. Michigan’s laws do not contain a religious exemption for religious entities like Christian Healthcare.

291. Michigan’s Employment Clause allows employers to apply to the Commission for an exemption on the basis that religion is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the business or enterprise. MCL 37.2208; MDCR Rule 37.25(1)....

297. Because Christian Healthcare requires all employees to affirm and live in accordance with its Religious Statements, which prohibit same-sex relationships and expressing a transgender identity, it would need a BFOQ exemption from discrimination on the basis sexual orientation, gender identity, and religion for every one of its employees.

ADF issued a press release announcing the filing of the lawsuit.

Yeshiva University Asks Supreme Court For Stay While State Court Ruling On Recognizing LGBTQ Group Is Appealed

Yesterday, an emergency Application for a Stay Pending Appellate Review (full text) was filed in Yeshiva University v. YU Pride Alliance, (Sup. Ct., filed 8/29/2022). In the case,  a New York state trial court held that New York City's public accommodation law requires Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. (See prior posting.) State appellate courts refused to stay the ruling. The petition contends that Yeshiva University is likely to succeed on its contention that forcing it to recognize the group violates the University's free exercise rights and the principles of church autonomy. The filing asks that alternatively it be treated as a petition for certiorari. Becket issued a press release announcing the filing of the Application.

RFRA Defense Cannot Be Decided On Pre-Trial Motion

In United States v. Skeet, (D NM, Aug. 26, 2022), a New Mexico federal district court held that defendant, a member of the Navajo nation, must assert as a defense at trial rather than in a pre-trial motion, the contention that the Migratory Bird Treaty Act and the Bald and Gold Eagle Protection Act violate his rights under the Religious Freedom Restoration Act. The court said in part:

[B]ecause Mr. Skeet’s RFRA defense implicates primarily factual rather than legal issues, the Court finds that this defense is “territory reserved to the jury as the ultimate finder of fact in our criminal justice system.” ... Additionally, because the RFRA defense goes to the ultimate issue of Mr. Skeet’s guilt, it would require a trial on the merits of the case—a prospect that is proscribed by Rule 12(b)(1) and that disserves judicial economy.... Nevertheless, Mr. Skeet is welcome to assert a RFRA defense at trial.

Marine Corps Enjoined From Discharging Religious Objectors To COVID Vaccination

In Colonel Financial Management Officer v. Austin, (MD FL, Aug. 18, 2022), a Florida federal district court certified as a class all Marines who have a sincere religious objection to COVID vaccination and whose request for a religious accommodation has been (or will  be) denied on appeal. According to the court:

The Marine Corps has granted only eleven accommodations, less than three-tenths of a percent (0.295%) of the 3,733 applications. The record presents no successful applicant other than a few who are due for retirement and prompt separation.

The court found "a systemic failure by the Marine Corps to satisfy RFRA." It said in part:

Notwithstanding a chaplain's affirmation, the Marine Corps rejects as insubstantial any religious objection grounded in the vaccine's connection to aborted fetal tissue because "fetal stem cells are neither used in the manufacture of the Pfizer COVID-19 vaccine nor are they present in the vaccine itself." This "finding," a unilateral lay declaration about a much discussed and much-debated topic, says nothing about the use of aborted fetal cells in the development of the vaccine and this finding says nothing about (and can say nothing about) the theological consequences of that use or about either moral or factual uncertainty. The "finding" says nothing about the religious concepts of, for example, accepting a personal benefit from evil, assisting someone in profiting from evil, cooperating in evil, appropriation of evil, de-sensitization to evil, moral contamination by intimacy with evil, ratification of evil, complicity with evil, or other considerations undoubtedly familiar to a theologian and likely familiar to a thoughtful and religious lay person who has contemplated evil.

The court issued a preliminary injunction against enforcement of the vaccine mandate against class members, or discharge or harassment of them.

Recent Articles of Interest

 From SSRN:

• Russell G. Pearce & Laynie Soloman, ’Nothing About Us Without Us’: Toward a Liberatory Heterodox Halakha, (Forthcoming, 37 Touro L. Rev. 1769-1835, 2022).
• Matthew Goldammer, Protecting Church Autonomy in the Twenty-First Century: A Defense of the Compulsory Deference Approach for Church Property Litigation, (Notre Dame Journal of Law, Ethics and Public Policy, Forthcoming).
• Giancarlo Anello, Mohamed A. Arafa & Sergio Alberto Gramitto Ricci, Sacred Corporate Law, (Seattle University Law Review, Vol. 45, 2021).
• Ido Katri, The Perils of Gender Self-Determination- Global Shifts in Sex Reclassification Law and Policy, (American Journal of Comparative Law (Forthcoming)).

From SmartCILP and elsewhere:

• Steven K. Green, The Supreme Court's Ahistorical Religion Clause Historicism, 73 Baylor Law Review 505-561 (2021).
• William Thomas Worster, The Human Rights Obligations of the Holy See under the Convention on the Rights of the Child, 31 Duke Journal of Comparative and International Law 351-424 (2021).
• Australian Journal of Law & Religion, Volume 1 (2022).

5th Circuit Approves Injunction Shielding Religious Organizations From Mandate On Transgender Medical Care

In Franciscan Alliance, Inc. v. Becerra, (5th Cir., Aug. 26, 2022), the U.S. 5th Circuit Court of Appeals, invoking RFRA, upheld a Texas federal district court's issuance of a permanent injunction barring the government from interpreting or enforcing provisions of the Affordable Care Act to require religious organizations, in violation of their religious beliefs, to perform or provide insurance coverage for gender-reassignment surgeries or abortions. At issue is the interpretation of the ACA's ban on discrimination on the basis of sex. The court however held that an alternative claim based on the Administrative Procedure Act was moot. Becket issued a press release announcing the decision.

California Must Allow Churches To Opt Out Of Abortion Coverage In Their Health Care Plans

In Foothill Church v. Watanabe, (ED CA, Aug. 25, 2022), a California federal district court held that the California Department of Managed Health Care (DMHC) should have taken steps so that objecting churches could be exempt from the Department's requirement that health insurance policies cover abortion services. DMHC argued that only health care plans are subject to its regulation, so exemptions will be granted only to plans, not to employers. Subjecting plaintiffs' Free Exercise claim to strict scrutiny because the DMHC rule is subject to a system of individual exemptions and thus is not "generally applicable," the court said in part:

[T]he court assumes without deciding that the Director’s understanding of the scope of her regulatory authority, that she is limited to regulating health plans, is correct. Nonetheless, nothing in the statutory text explicitly precludes her from fielding requests for exemptions from religious claimants. Likewise, nothing appears to preclude the Director from directing the religious claimant’s plan to submit a revised evidence of coverage document comporting with the religious claimant’s belief to the DMHC for approval. The Director’s authority to give orders to a plan does not foreclose the authority to consider requests for those orders from others. In the end, the Director is still regulating the plan.

... The Director’s denial of the Churches’ request for exceptions to accommodate their religious beliefs, based solely on the fact that those requests did not originate with a plan, was not narrowly tailored to serve a compelling interest.

ADF issued a press release announcing the decision.

8th Circuit Upholds Injunction On Gender Transition Procedures Ban

In Brandt v. Rutledge, (8th Cir., Aug. 25, 2022), the U.S. 8th Circuit Court of Appeals affirmed an Arkansas district court's grant of a preliminary injunction against enforcement of Arkansas' ban on healthcare professionals providing gender transition procedures to anyone under 18, or referring minors for such procedures. Finding that the law violates the Equal Protection Clause, the court said in part:

[U]nder the Act, medical procedures that are permitted for a minor of one sex are prohibited for a minor of another sex. A minor born as a male may be prescribed testosterone or have breast tissue surgically removed, for example, but a minor born as a female is not permitted to seek the same medical treatment. Because the minor’s sex at birth determines whether or not the minor can receive certain types of medical care under the law, Act 626 discriminates on the basis of sex.

Arkansas’s characterization of the Act as creating a distinction on the basis of medical procedure rather than sex is unpersuasive.

Arkansas Times reports on the decision.

Sikh Marine Recruits Lose Bid For Turbans and Unshorn Hair During Recruit Training

In Toor v. Berger, (D DC, Aug. 24, 2022), the D.C. federal district court refused to grant a preliminary injunction to three Sikh Marine recruits who wanted to prevent enforcement of the Marine's uniform and grooming policies during recruit training while their case continues to be litigated. Sikh religious beliefs require plaintiffs to maintain an unshorn beard and hair, wear a turban and wear other religious items. Plaintiffs contend that denying accommodation of their religious practices violates RFRA, the Free Exercise Clause and the Equal Protection Clause. The court held that even if plaintiffs have shown a likelihood of success on the merits and irreparable injury, the balance of equities and the overall public interest favor the military at this preliminary stage of proceedings. The court said in part:

The Marines have thus "credibly alleged" that "training in [the] manner" that would be required by the requested injunction will "pose a serious threat to national security" by disrupting defendant's well established method of transforming recruits through the discipline of uniformity.

Court Enjoins Idaho Abortion Ban When It Conflicts With Federal Emergency Treatment Requirement

In United States v. State of Idaho, (D ID, Aug. 24, 2022), an Idaho federal district court 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 court said in part:

[T]he State of Idaho, including all of its officers, employees, and agents, are prohibited from initiating any criminal prosecution against, attempting to suspend or revoke the professional license of, or seeking to impose any other form of liability on, any medical provider or hospital based on their performance of conduct that (1) is defined as an “abortion” under Idaho Code § 18-604(1), but that is necessary to avoid (i) “placing the health of” a pregnant patient “in serious jeopardy”; (ii) a “serious impairment to bodily functions” of the pregnant patient; or (iii) a “serious dysfunction of any bodily organ or part” of the pregnant patient, pursuant to 42 U.S.C. § 1395dd(e)(1)(A)(i)-(iii).

Idaho law permits an abortion only to save the life of the mother.  The Hill reports on the decision.

Court Enjoins Enforcement In Texas Of HHS Emergency Abortion Guidance

In State of Texas v. Becerra, (ND TX, Aug. 23, 2022), a Texas federal district court issued a preliminary injunction prohibiting enforcement in Texas of the Department of Health and Human Services' guidance to hospitals (and accompanying letter) which, relying on the federal Emergency Medical Treatment & Labor Act, requires hospital emergency rooms to perform certain abortions even when they violate Texas law. According to the Guidance, when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition, EMTALA requires emergency rooms to perform it. The court's 67-page opinion said in part:

Texas law already overlaps with EMTALA to a significant degree, allowing abortions in life-threatening conditions and for the removal of an ectopic or miscarried pregnancy. But in Dobbs’s wake and in an attempt to resolve any potential conflict with state law, the Department of Health and Human Services issued Guidance purporting to remind providers of their existing EMTALA obligations to provide abortions regardless of state law. That Guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict. Since the statute is silent on the question, the Guidance cannot answer how doctors should weigh risks to both a mother and her unborn child. Nor can it, in doing so, create a conflict with state law where one does not exist. The Guidance was thus unauthorized. In any event, HHS issued it without the required opportunity for public comment.

Reuters reports on the decision.

Synagogue's Suit Over Zoning Denial Is Dismissed

In Chabad of Prospect, Inc. v. Louisville Metro Board of  Zoning Adjustment,(WD KY, Aug. 23, 2022), a Kentucky federal district court dismissed a suit brought against zoning officials by a synagogue that was denied a conditional use permit to use a home purchased by it for religious services. When the property was put up for sale, zoning rules allowed its use for religious purposes.  However, before plaintiff purchased the property the city removed that provision and required a conditional use permit. Plaintiff was unaware of the change. The court held that plaintiff's Sec. 1983 claim alleging 1st Amendment violations was barred by the statute of limitations. Additionally, it held that plaintiff failed to state a claim under RLUIPA, saying in part:

Chabad alleged only that it chose and purchased the property “specifically” to open a synagogue for the community given that there are “[v]ery few synagogues” in the area and having one in “Prospect is vital to its mission.”... It didn’t allege any delay, expense, and uncertainty due to the burden of the denial. And Chabad never alleged that alternatives are infeasible, nor any other facts that indicate a substantial burden.

The court also rejected a claim under RLUIPA's "equal terms" provision, saying in part:

Chabad hasn’t offered anything to rebut the prediction that a house of worship would be more likely to cause greater traffic problems than regular residential events, even if the religious services are currently smaller....

Finally, the court rejected plaintiffs' state law claims.

Utah Court Strikes Down Ban On Transgender Girls On School Sports Teams

 In Roe v. Utah High School Activities Association, (UT Dist. Ct., Aug. 19, 2022), a Utah state trial court issued a preliminary injunction barring enforcement of a provision in Utah law that bans transgender girls from competing on pre-college girls sports teams. Under Utah law, if the ban is enjoined a School Activity Eligibility Commission is to be created that will consider confidentially on a case-by-case basis whether it would be fair for a particular transgender student to compete on girls' teams. The court said in part:

The Court finds that Plaintiffs have shown a substantial likelihood that the Ban violates the uniform operation of laws (“UOL”) clause of the Utah Constitution....

Both a plain reading of the Ban and relevant case law demonstrate that the legislation classifies individuals based on transgender status and, therefore, on sex....

During the 2021-22 school year, only four of the 75,000 students that played high school sports in Utah were transgender. Of those four, only one student played on a girls’ team.... There is no support for a claim “that allowing transgender women to compete on women’s teams would substantially displace female athletes.”....  

Similarly, Plaintiffs’ evidence suggests that there is no basis to assume that transgender girls have an automatic physiological advantage over other girls. Before puberty, boys have no significant athletic advantage over girls.... Many transgender girls – including two of the plaintiffs in this case – medically transition at the onset of puberty, thereby never gaining any potential advantages that the increased production of testosterone during male puberty may create.... Other transgender girls may mitigate any potential advantages by receiving hormone therapy.... And still others may simply have no discernable advantage in any case, depending on the student’s age, level of ability, and the sport in which they wish to participate. The evidence suggests that being transgender is not “a legitimate accurate proxy” for athletic performance.

AP reports on the decision.

School Policy On Treatment of Transgender Students Upheld

In Parents 1 v. Montgomery County Board of Education, (D MD, Aug. 18, 2022), a Maryland federal district court upheld Guidelines promulgated by Montgomery County, Maryland school officials on dealing with transgender and gender non-conforming students.  Parents particularly challenge the portion of the Guidelines that advise school personnel not to disclose a student’s gender identity to their parents without the student’s consent, especially when the student has not yet disclosed their gender identity to their parents, or if the student either expects or knows their parents are unsupportive. Plaintiffs contend that this violates their parental rights protected by the due process clause of the 14th Amendment. The court said in part:

My review of the Guidelines reveals that the Plaintiff Parents’ argument is based on a selective reading that distorts the Guidelines into a calculated prohibition against the disclosure of a child’s gender identity that aims to sow distrust among MCPS students and their families. In reality, the Guidelines instruct MCPS staff to keep a student’s gender identity confidential until the student consents to the disclosure out of concern for the student’s well-being, and as a part of a more comprehensive gender support plan that anticipates and encourages eventual familial involvement whenever possible....

The court concluded that the Guidelines are subject only to rational basis review. It went on to say that even if it were to apply strict scrutiny, the Guidelines would still be upheld because the state's interest in safeguarding a minor's physical and psychological well-being is compelling. The court also dismissed various claims under Maryland law. WTOP News reports on the decision.