Religion Clause

Thursday, February 29, 2024

7th Circuit Reinstates Indiana Ban on Gender Affirming Care For Minors

In K.C. v. Individual Members of the Medical Licensing Board of Indiana, (7th Cir., Feb. 27, 2024), the U.S. 7th Circuit Court of Appeals stayed a preliminary injunction against Indiana's ban on non-surgical gender transition procedures for minors. The preliminary injunction was granted by an Indiana federal district court in June 2023 (full text of district court opinion). The 7th Circuit issued its Order lifting the injunction, saying that an opinion will follow. In a press release, the ACLU called the 7th Circuit's action "a heartbreaking development for thousands of transgender youth, their doctors, and their families." Indiana Attorney General Todd Rokita, in a post on X (formerly Twitter) said in part: "We are proud to win this fight against the radicals who continue pushing this horrific practice on our children for ideological and financial reasons." Indy Star reports on the case.

Election of Student School Board Member by Public School Students Did Not Violate Free Exercise Clause

In Kim v. Board of Education of Howard County, (4th Cir., Feb. 28, 2024), the U.S. 4th Circuit Court of Appeals affirmed the dismissal of equal protection and free exercise challenges to the procedure that Howard County, Maryland uses to select a high school student to be one member of its 8-member school board. The student member is chosen by a vote of public-school students in grades 6 through 11. One of the plaintiffs contended that this process violates the Free Exercise clause because it excludes plaintiff's son who attends a Catholic school from participating in the selection process. The court concluded that the selection process is neutral and generally applicable and therefore subject only to rational basis review. The court said in part:

Maryland’s law does not consider religious motivation but depends on public school enrollment. To the extent the law has an effect of excluding religious students, it does so “in spite of” and not “because of” those students’ religious reasons for forgoing public education.... The law is neutral.

It is also generally applicable.,,, Maryland’s law makes no distinction between religious and secular. It bars non-public-school students, religious and nonreligious alike, from choosing or serving as the student member.....

Howard County does not let any private schools, religious or nonreligious, participate in selecting the board of education student member.... Strict scrutiny plays no role in judging this textbook neutral and generally applicable selection criterion.....

Without the benefit of heightened judicial scrutiny, the parents have failed to state a viable claim under either the Equal Protection Clause or the Free Exercise Clause under rational basis review.

Wednesday, February 28, 2024

Court Upholds Maine's Law Barring LGBTQ Discrimination by Christian School Receiving State Funds

In Crosspoint Church v. Maikin, (D ME, Feb. 27, 2024), a Maine federal district court refused to enjoin application of the state's educational antidiscrimination laws against a private Christian school. In 2022, the U.S. Supreme Court struck down Maine's exclusion of sectarian schools from its tuition payment program to out-of-district schools when districts do not operate their own public high schools. (See prior posting.) While that litigation was in progress, Maine's legislature amended its civil right laws to now bar schools that receive public funds from discriminating on the basis of sexual orientation or gender identity. In rejecting the school's challenges, the court said in part:

The Court concludes that Crosspoint is not entitled to a preliminary injunction. With this said, the Court acknowledges that Crosspoint is raising important legal questions. Despite the plaintiffs’ hard-fought and significant victory at the United States Supreme Court in Carson, the Maine Legislature and the Maine Attorney General have largely deprived Crosspoint and similar religious schools of the fruit of their victory. Crosspoint essentially argues that the Maine Legislature’s enactment of statutes that prohibit discrimination on the basis of sexual orientation and gender identity is a form of state-enforced, secular religion. Yet, the Maine Legislature has the authority to define protected classes under its antidiscrimination laws. The rub comes when the Maine Legislature’s view of the categories of people meriting protected status conflicts with sincerely held beliefs of members of religious communities. This is a tension as old as the nation itself. Although it has done its best to set out, analyze, and decide these difficult constitutional issues, the Court also recognizes that this case poses novel constitutional questions and has attempted to frame its opinion as a prelude to a challenge to the Court of Appeals for the First Circuit for a more authoritative ruling....

UN Says Belarus Legislation on Religion and Belief Violates International Human Rights Law

In a Feb.20 press release (full text), the United Nations Office of the High Commissioner for Human Rights said that its experts believe recent legislation on freedom of conscience and activities of religious organizations adopted by Belarus violates international human rights law. The press release, in part quoting the experts' report, says in part:

“The provisions on compulsory registration unduly restrict the right to freedom of thought, conscience, religion or belief,”...

“The law establishes broad yet imprecise legal grounds for the State to suspend and dissolve religious organisations, such as conducting an activity directed against the main direction of domestic and foreign policy of the Republic of Belarus, discrediting the Republic of Belarus, humiliating the national honour, engaging in political activities or other undefined extremist activities,” ...

The experts warned that the law imposes extensive State control over religious education and literature, stipulating that religious education, religious literature or any other material with religious content must not contradict “the generally recognised traditional values of the Belarusian people and the ideology of the Belarusian State”....

The law stipulates that religious organisations can only be led by Belarusian citizens with permanent residence in the country, which appears to discriminate against certain religions....

“The law appears to be aimed at further strengthening the overarching control of the State over all aspects of the existence of religious communities....

Tuesday, February 27, 2024

White House Announces 2024 Easter Egg Roll

In a Release (full text) yesterday, the White House announced information on the 2024 White House Easter Egg Roll. The traditional event, which is geared toward children 12 years of age and under, will be held on the White House South Lawn on Monday, April 1. Between now and March 4, the public may enter the free lottery for tickets. Applications to volunteer to assist at the event may also be submitted online. The White House Easter Egg Roll has been held annually (with a few exceptions) since 1878.

Cert. Filed In Religious Broadcasters' Appeal of Mandatory Royalty Rates

A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in National Religious Broadcasters Noncommercial Music License Committee v. Copyright Royalty Board, (Sup. Ct., cert. filed 2/23/2024). In the case, the D.C. Circuit Court of Appeals in a July 28, 2023, opinion (full text) upheld the royalty rates set by the Royalty Board for calendar years 2021 through 2025 that must be paid by various classes of webcasters that stream copyrighted songs over the Internet. In its certiorari petition, the Religious Broadcasters set out the following as one of the Questions Presented for review:

Recently, the Board adopted rates requiring noncommercial religious webcasters to pay over 18 times the secular NPR-webcaster rate to communicate religious messages to listeners above a modest 218-average listener threshold. The D.C. Circuit upheld that disparate burden based on the Board treating some secular webcasters as poorly as religious webcasters. The result is suppression of online religious speech....

Its decision presents ... important legal questions:

1. Whether approving noncommercial rates that favor NPR’s secular speech over religious speech violates the Religious Freedom Restoration Act (RFRA) or the First Amendment....

ADF issued a press release announcing the filing of the cert. petition.

Tennessee Legislature Passes Healthcare Sharing Ministries Exemption

Yesterday the Tennessee legislature took the final procedural steps needed to send HB 1163, Healthcare Sharing Ministries Freedom to Share Act (full text) to the Governor for his signature. It exempts from state insurance regulation tax-exempt plans under which members who share a common religious or ethical belief provide for the medical or financial needs of other members through their financial contributions.

Monday, February 26, 2024

Civil Conspiracy Claims Against Religious Organization Survive 1st Amendment Defenses

In re Gothard, (TX App., Feb. 22, 2024), is a mandamus action that is essentially an appeal of a trial court's refusal to dismiss civil conspiracy claims against Institute in Basic Life Principles and its founder, William Gothard. Plaintiffs claimed that ILBP is a cult that "teachers distorted and heretical Christian doctrines" that led to their sexual abuse by their father and brother. The Texas state appellate court rejected Relators', i.e. defendants', First Amendment defenses, saying in part:

Gothard maintains that religious teachings and the publication thereof are constitutionally protected. IBLP contends the ecclesiastical abstention doctrine bars RPIs’ cause of action. It argues that the “alleged religiously motivated conduct of IBLP is the advocacy and publication of religious beliefs.” According to Relators, if RPIs’ claim is considered valid, any religious leader who speaks on religious topics and publishes his beliefs could be subject to a civil cause of action if a listener or reader improperly applies those beliefs in sexually abusing another person or committing some other unlawful act. ...

But the First Amendment does not bar all claims against religious bodies.,,, A court may exercise jurisdiction over a controversy if it can apply neutral principles of law that will not require inquiry into religious doctrine, interference with the free-exercise rights of believers, or meddling in church government....

The relevant question is whether it appears certain that resolution of [plaintiffs']’ claims will require the trial court to address purely ecclesiastical questions.... IBLP represents that its teachings and materials are based on scriptures from the Bible, none of which “advocate sexual abuse or any other form of sexual immorality.” Accordingly, by its own admission, IBLP’s teachings and materials do not advocate sexual abuse and consequently, the intentional tort of sexual assault that underlies the civil conspiracy claim is not rooted in religious belief. ....

Because sexual assault is not part of Relators’ belief system, we cannot definitively say, based on the record before us, that this is a situation in which religious beliefs are so intertwined with a tort claim so as to unconstitutionally burden Relators’ rights and embroil the court in an assessment of those religious beliefs.

Saturday, February 24, 2024

Pakistan Supreme Court Defends Free Exercise Rights of Ahmadis; Protests Follow

Earlier this month, a 2-judge panel of the Pakistani Supreme Court in Mubarak Ahmad Sani v. The State, (Pakistan Sup. Ct., Feb. 6, 2024) (full text in Urdu), ordered the release on personal bond of a member of the Ahmadi sect who had already been held for 13 months pending trial on charges of disseminating a banned religious text.

As explained in the Feb. 25 issue of Dawn:

Petitioner Sami had sought deletion of certain charges in an FIR [First Information Report] registered against him on Dec 6, 2022 at the Chenab Nagar police station in Chiniot district.

The petitioner was accused of distributing/disseminating a proscribed book, Tafseer-i-Sagheer, which, according to the prosecution, was an offence under the Punjab Holy Quran (Printing and Recording) (Amendment) Act enforced in 2021, whereas the FIR alleged that the petitioner had done this in 2019 when the distribution/dissemination of the proscribed book was not an offence....

The petitioner was arrested on Jan 7, 2023 and remained incarcerated for 13 months — more than double the permissible punishment under Section 5 of the Criminal Law Amendment Act, 1932....

The verdict observed that the principle of there being no compulsion in religion mentioned in the Holy Quran is enshrined in the Constitution as a fundamental right. Clause (a) of Article 20 of the Constitution stipulates that “every citizen shall have the right to profess, practice and propagate his religion”, while clause (b) of Article 20 states that “every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions”.

Article 22 of the Constitution requires and prescribes that “no religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination”.

“These fundamental rights cannot be derogated from, circumvented or diluted.... ” the judgement observed.

The court regretted that bail was declined to the petitioner by the additional sessions judge on June 10 last year, without considering that the petitioner had already served out the maximum prescribed imprisonment for these offence.

According to a Feb. 23 AFP report, the Supreme Court's decision led to demonstrations in Peshawar by some 3000 Pakistani Muslims who consider the Ahmadi text blasphemous. As reported by the Times of India, the Supreme Court on Thursday issued a statement defending the decision.

UPDATE: According to a Feb. 24 report in The News, the Punjab government has petitioned the Supreme Court seeking a revision of its decision, asking it to clarify that Article 20 of the Constitution qualifies its protection of the profession, propagation and practice of religion by making it subject to "public order and morality". At a hearing on accepting the petition, the Chief Justice's comments suggested that the Court would agree to that modification. The Court adjourned the hearing until Feb. 26.

Friday, February 23, 2024

Utah Legislature Passses Religious Freedom Bill

The Utah legislature yesterday gave final passage to S.B. 150: Exercise of Religion Amendments (full text). The bill is similar, though not identical to, Religious Freedom Restoration Acts passed in 35 other states. It prohibits governmental imposition of a substantial burden on the free exercise of religion unless the government demonstrates a compelling interest and uses the least restrictive means to further that interest. In a compromise with LGBTQ advocates, the sponsor of the bill added language in the introductory "Whereas" clauses to preserve existing protections against discrimination in employment and housing based on sexual orientation or gender identity. (Background). Those clauses read:

(d) WHEREAS, Utah has enacted a number of laws that balance religious freedom with other important civil rights; and

(e) WHEREAS, this part complements, rather than disrupts, the balance described in Subsection (1)(d).

The bill now goes to Governor Spencer Cox for his signature. States Newsroom reports on passage of the bill.

State Constitutional Challenge to Abortion Restrictions Filed in Wisconsin Supreme Court

Last year in Kaul v. Urmanski, (WI Cir. Ct., Dec. 5, 2023), a Wisconsin state trial court held that Wisconsin Statute §940.04 which prohibits destroying the life of an unborn child applies only to feticide, and not to consensual abortions. That case is now on appeal to the Wisconsin Supreme Court. Yesterday, Planned Parenthood filed a petition with the Wisconsin Supreme Court asking it to take original jurisdiction over a state constitutional challenge to §940.04. It contends that the Court should decide the constitutional question before it engages in the statutory interpretation issue presented in the Kaul case. The petition (full text) in Planned Parenthood of Wisconsin v. Linton, (WI Sup.Ct., filed 2/22/2024), contends that Wisconsin Statute §940.04, if interpreted to ban abortions in all cases except to save the life of the mother, violates Art. I, Sec. 1 of the Wisconsin Constitution. The Petition asserts that the abortion ban (enacted in the mid 19th century) violates the right to bodily integrity, autonomy and self-determination; the physician's and the patient's right to equal protection, and the physician's right to practice his or her profession. Courthouse News Service reports on Planned Parenthood's petition.

Thursday, February 22, 2024

Tennessee Governor Signs Law Allowing Potential Officiants to Refuse to Solemnize a Marriage

Yesterday, Tennessee Governor Bill Lee signed into law HB 878 (full text) which adds to the Tennessee Code section which lists who may solemnize marriages (clergy as well as various current and former public officials) language that provides:

A person shall not be required to solemnize a marriage.

As originally introduced, the bill would have allowed refusals only by those who had objections based on conscience or religious belief. CNN reporting on the bill notes that LGBTQ advocates criticized the bill for allowing public officials to discriminate based on their personal beliefs.

Texas AG Seeks to Liquidate Catholic Agency Providing Services to Migrants

A legal battle is underway between Annunciation House, a Catholic agency serving migrants and refugees in El Paso, and Texas Attorney General Ken Paxton who accuses the agency of sheltering migrants who have entered the country illegally. On Feb. 7, Paxton demanded that Annunciation House turn over various records within one day. The next day, Annunciation House filed suit in a Texas state trial court seeking a declaratory judgment and temporary restraining order. The complaint (full text- Scroll to Exhibit 6) in Annunciation House, Inc. v. Paxton, (TX Dist. Ct., filed 2/8/2024), in part asks the court to determine:

whether Defendants’ unexplained demand for sensitive information infringes on AHI’s constitutional rights, including religious liberty, association, and equal protection, and the privacy rights of third parties, including their sensitive medical, legal, and personal information.

The same day, the court issued a TRO (full text, scroll to Exhibit 7) temporarily barring the Attorney General's office from enforcing its Request to Examine Annunciation House's records. On Feb. 20, the Attorney General filed a counter claim (full text), seeking, as a sanction for failing to produce the requested documents, to bar Annunciation House from transacting business in Texas and asking for appointment of a receiver to wind up Annunciation House's affairs. In a press release announcing the filling, the Attorney General's office said in part:

Texas Attorney General Ken Paxton has sued Annunciation House, a nongovernmental organization (“NGO”), to revoke their registration to operate in Texas. The Office of the Attorney General (“OAG”) reviewed significant public record information strongly suggesting Annunciation House is engaged in legal violations such as facilitating illegal entry to the United States, alien harboring, human smuggling, and operating a stash house....

The chaos at the southern border has created an environment where NGOs, funded with taxpayer money from the Biden Administration, facilitate astonishing horrors including human smuggling....

In a Feb. 21 press release, Annunciation House responded, saying in part:

The AG has now made explicit that its real goal is not records but to shut down the organization. It has stated that it considers it a crime for a Catholic organization to provide shelter to refugees.

The Attorney General’s illegal, immoral and anti-faith position to shut down Annunciation House is unfounded. Annunciation House has provided hospitality to hundreds of thousands of refugees for over forty-six years. It is a work recognized by the Catholic Church and is listed in the National Catholic Directory. Annunciation House has done this work of accompaniment out of the scriptural and Gospel mandate to welcome the stranger. Annunciation House’s response to the stranger is no different from that of the schools who enroll children of refugees, the clinics and hospitals who care for the needs of refugees, and the churches, synagogues, and mosques who welcome families to join in worship.

Texas Tribune reports on the litigation.

Tuesday, February 20, 2024

Certiorari Denied in Case of Jurors Disqualified Because of Religious Beliefs

Today the Supreme Court denied review in Missouri Department of Corrections v. Finney, (certiorari denied, 2/20/2024). In the case a Missouri state appellate court (full text of state court opinion) upheld a trial court's striking of three potential jurors for cause. The suit involved claims against the Department of Corrections by a lesbian employee alleging sex discrimination and hostile work environment. The potential jurors were disqualified because of their strongly-held religious views that homosexuality is a sin. Homosexuality was an important issue in the case. Justice Alito filed a Statement respecting the denial of certiorari indicating that were it not for a complicating state law issue in the case, he would have voted to grant review, saying in part:

Before us, the Department of Corrections argues that these for-cause dismissals were unconstitutional, and I agree that the Court of Appeals’ reasoning raises a very serious and important question that we should address in an appropriate case. The judiciary, no less than the other branches of State and Federal Government, must respect people’s fundamental rights, and among these are the right to the free exercise of religion and the right to the equal protection of the laws. When a court, a quintessential state actor, finds that a person is ineligible to serve on a jury because of his or her religious beliefs, that decision implicates fundamental rights.

New Report on Antisemitism in America Released

Last week, the American Jewish Committee released its report The State of Antisemitism in America 2023. The Report includes a Survey of American Jews, a Survey of the General Public, a Comparison of the Attitudes of the two groups, and a Methodology Report. AJC CEO Ted Deutch, commenting on the Report, said in part:

With nearly half of American Jews reporting they changed their behavior in the past year because of fear of antisemitism, we need to take action – now. AJC’s report also found that over the last year, 4 in 10 Jewish college students have felt the consequences of antisemitism, with one-in-five saying they have been excluded from a group or event because they are Jewish. This should alarm everyone especially with the dramatic increase of antisemitic activity on college campuses that has continued into 2024.

[Thanks to Burt Shifman for the lead.]

9th Circuit: On Supervised Release, Must Have Secular Alternative To 12-Step Program Requirement

In United States v. Rourke, (9th Cir., Feb. 15, 2024), the U.S. 9th Circuit Court of Appeals held that it was "plain error" for a district court to impose as a condition of supervised release, without a non-religious alternative, that defendant live at and participate in a 12-step based halfway house if his probation officer requires it. The court said in part:

A twelve-step program is “a distinctive approach to overcoming addictive, compulsive, or behavioral problems,” which “asks each member to ... recognize a supreme spiritual power, which can give the member strength.” .... We have previously held that compelling a parolee to participate in an “Alcoholics Anonymous 12 step program” violated the Establishment Clause....

... [R]emand to the district court to modify the condition is required. So long as the revised condition explicitly notes Rourke’s right to object to the imposition of religious-based treatment and to be offered a secular alternative, no Establishment Clause violation will result.

Title VII Challenge to Denial of Vaccine Exemption Survives Motion to Dismiss

In Prodan v. Legacy Health, (D OR, Feb. 12, 2024), an Oregon federal district court refused to dismiss a Title VII religious discrimination claim brought by two former employees of Legacy Health who were denied religious exemptions from the Covid vaccine mandate for healthcare workers. The court said in part:

... [C]ourts appear to be in agreement that a general allegation of religious conflict without identifying a conflicting belief is insufficient to survive a motion to dismiss....

... [However] allegations of an allegedly religious belief coupled with an assertion that the COVID-19 vaccine conflicts with that belief is enough to plead a prima facie case of religious discrimination.

In the case, one plaintiff alleged that her body is a temple of God and taking the Covid vaccine violates her conscience. The second defendant alleged that her body is a Temple of the Holy Spirit and refraining from injecting it with harmful chemicals and unknown substances honors the Temple.

Monday, February 19, 2024

Alabama Supreme Court: Wrongful Death Law Covers Destruction of Frozen Embryos

In LePage v. Center for Reproductive Medicine, P.C., (AL Sup. Ct., Feb. 16, 2024), the Alabama Supreme Court held, by a vote of 7-2, that Alabama's Wrongful Death of a Minor Act covers the negligent destruction of frozen embryos created during IVF treatment and kept in a clinic's cryogenic nursery. The destruction occurred when a patient wandered into the fertility clinic, removed several embryos and then dropped them when his hands were freeze burned. Justice Mitchell's majority opinion said in part:

[Defendants] ask us to recognize an unwritten exception for extrauterine children in the wrongful-death context because, they say, our own precedents compel that outcome....

... [Defendants and Alabama Medical Association as amicus] assert that treating extrauterine children as "children" for purposes of wrongful-death liability will "substantially increase the cost of IVF in Alabama" and could make cryogenic preservation onerous....

While we appreciate the defendants' concerns, these types of policy-focused arguments belong before the Legislature, not this Court.... Here, the text of the Wrongful Death of a Minor Act is sweeping and unqualified. It applies to all children, born and unborn, without limitation. It is not the role of this Court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the People of this State have adopted a Constitutional amendment directly aimed at stopping courts from excluding "unborn life" from legal protection. Art. I, § 36.06, Ala. Const.

Chief Justice Parker filed a concurring opinion focusing on Art. I of the Alabama Constitution which provides that declares "it is the public policy of this state to recognize and support the sanctity of unborn life...." The Chief Justice said in part:

... [T]he theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following: (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life -- that even before birth, all human beings bear the image of God, and their lives cannot be destroyed without effacing his glory.

Justice Shaw, joined by Justice Stewart filed a concurring opinion.

Justice Mendheim filed an opinion concurring in the result, saying in part:

In my judgment, the main opinion's view that the legal conclusion is "clear" and "black-letter law" is problematic because when the Wrongful Death of a Minor Act was first enacted in 1872, and for 100 years thereafter, IVF was not even a scientific possibility....

Ultimately ... we must be guided by the language provided in the Wrongful Death of a Minor Act and the manner in which our cases have interpreted it. Under those guideposts, today's result is correct. However, the decision undoubtedly will come as a shock in some quarters of the State. I urge the Legislature to provide more leadership in this area of the law given the numerous policy issues and serious ethical concerns at stake....

Justice Sellers filed an opinion dissenting in part, saying in part:

To equate an embryo stored in a specialized freezer with a fetus inside of a mother is engaging in an exercise of result-oriented, intellectual sophistry, which I am unwilling to entertain.

Justice Cook filed a 56-page dissenting opinion, saying in part:

... I believe the main opinion overrules our recent Wrongful Death Act caselaw that requires "congruence" between the definition of "person" in Alabama's criminal-homicide statutes and the definition of "minor child" in the Wrongful Death Act. Both the original public meaning and this recent caselaw indicate the same result here -- that the Wrongful Death Act does not address frozen embryos.

Moreover, there are other significant reasons to be concerned about the main opinion's holding. No court -- anywhere in the country -- has reached the conclusion the main opinion reaches. And, the main opinion's holding almost certainly ends the creation of frozen embryos through in vitro fertilization ("IVF") in Alabama....

1819 News reports on the decision.

[Thanks to Scott Mange for the lead.]