Religion Clause

Tuesday, July 02, 2024

Belgian Court Fines Catholic Archbishop and Cardinal for Denying Woman Clergy Training

The Pillar and Catholic News Agency report that a Belgian civil court has fined a Cardinal and an Archbishop each 1500 Euros for refusing to allow a woman to register for training as a deacon in the Catholic Church. Article 10 of Belgium's Constitution provides that "Equality between women and men is guaranteed." In Belgium, the state pays the salaries of clergy, but the Catholic Church reserves holy orders to baptized men. While the court held that the Church should have admitted Veer Dusauchoit for training, it did not address whether the Church would later be required to ordain her.

Alaska Supreme Court Rejects Facial Challenge To Law Allowing State Reimbursement to Home Schoolers For Materials

In State of Alaska, Department of Education & Early Development v. Alexander, (AK Sup. Ct., June 28, 2024), the Alaska Supreme Court refused to hold unconstitutional on its face a state statute that permits school districts to approve an allotment of funds to families to purchase educational materials and services for correspondence study programs from public, private or religious organizations. Plaintiffs contended that the law violates a provision in the Alaska Constitution barring the use of public funds for the direct benefit of any religious or other private educational institution. The Supreme Court said that there are some clearly constitutional applications of the statute, so a facial challenge does not succeed. It added:

Under AS 14.13.300-.310 it is school districts, not the State, that design students’ individual learning plans and authorize particular uses of allotment funds to purchase services and materials in connection with those plans. For this reason, Alexander’s claim that certain uses of allotment funds are unconstitutional cannot proceed without joining a school district that has authorized those uses of allotment funds.

The superior court rejected this argument, which was error. We therefore vacate the court’s denial of the State’s motion to dismiss Alexander’s as-applied challenge and remand for further proceedings. To proceed with an as-applied challenge on remand, Alexander must decide which particular uses of allotments he believes are unconstitutional and then identify and join the school district or districts that authorized that spending.

Alaska Watchman reports on the decision.

Monday, July 01, 2024

Jewish Women Lack Standing in Religious Freedom Challenge to Kentucky Abortion Restrictions

In Sobel v. Cameron, (KY Cir. Ct., June 28, 2024), plaintiffs, three Jewish women, alleged, among other things, that the lack of exceptions for complications during pregnancy and lethal fetal anomalies in Kentucky's restrictive abortion laws impinge on their willingness to follow their religious obligations to expand their families in a manner that does not jeopardize their health or the health of their unborn children. Plaintiffs say that "In Judaism, having children is considered a blessing, and the commandment to be fruitful and multiply is paramount." Plaintiffs alleged that the abortion statutes are unconstitutionally vague, violate the Kentucky Religious Freedom Restoration Act and reflect sectarian Christian views that denigrate Jewish practice. A Kentucky state trial court dismissed the case, saying in part:

... [T]he alleged injuries of the three Plaintiffs are hypothetical as none are currently pregnant or undergoing IVF at the present time. Accordingly, the Court simply cannot find that the plaintiffs have shown "the existence of an actual controversy respecting justiciable questions which is a required condition precedent for a declaratory judgment action.... Therefore, the Court must conclude that the Plaintiffs here lack standing to proceed in this action.

NPR reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Justice of the Peace's Challenge to Reprimand for Refusing Same-Sex Marriage Officiation Is Remanded

In Hensley v. State Commission on Judicial Conduct, (TX Sup. Ct., June 28, 2024), the Texas Supreme Court, in an 8-1 decision, held that a Justice of the Peace may move ahead with her suit brought against members of the Judicial Conduct Commission who issued a formal warning to the Justice of the Peace because of her refusal to perform same-sex marriages. The Justice of the Peace would perform marriages for heterosexual couples, but referred same-sex couples to others that would perform a ceremony for them. She contended that the Commissioners' actions violated the Texas Religious Freedom Restoration Act as well as her free speech rights. The court held that there was no requirement to exhaust administrative remedies before filing suit, nor was the suit against individual commissioners (as opposed to the Commission itself) barred by sovereign immunity.

Justice Blacklock, joined by Justice Devine, filed a concurring opinion, agreeing that as a procedural matter the case can move forward, but said that the Supreme Court should have reached the substantive claims and dismissed them. He said in part:

There are no victims. There was no crime. We have a Christian justice of the peace in a small Texas city doing her best to navigate her duties to God and to the public. We have no real people even claiming to be harmed by her actions. We certainly have no same-sex couples denied a marriage—or anything even close to that. There is no good reason for this case to exist.

But it does exist. It exists because of the Judicial Conduct Commission, which veered far outside its proper lane by self-initiating this victimless but politically and emotionally charged case. The Commission misinterpreted the Code of Judicial Conduct and violated Judge Hensley’s religious-freedom rights by publicly sanctioning her and by continuing to hold over her head the threat of a future, harsher sanction should she resume her marriage-referral policy. To her credit, Judge Hensley did not capitulate. And for the last several years, the Commission has doubled down again and again on this misbegotten case, all the way to the Texas Supreme Court.

Justice Young filed a brief concurring opinion. Justice Lehrmann filed a dissenting opinion contending that plaintiff failed to exhaust her administrative remedies before filing suit.

First Liberty Institute issued a press release announcing the decision.

Sunday, June 30, 2024

Iowa Supreme Court Allows 6-Week Abortion Ban to Go into Effect

In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Sup.Ct., June 28, 2024), the Iowa Supreme Court in a 4-3 decision reversed the grant of a temporary injunction against Iowa's 6-week fetal heartbeat abortion ban. The Court said in part:

We have previously held that abortion is not a fundamental right under the Iowa Constitution.... Applying our established tiers of scrutiny, we hold that abortion restrictions alleged to violate the due process clause are subject to the rational basis test. Employing that test here, we conclude that the fetal heartbeat statute is rationally related to the state’s legitimate interest in protecting unborn life. We thus reverse the district court order entering the temporary injunction blocking enforcement of the fetal heartbeat statute....

Chief Justice Christensen, joined by Justices Waterman and Mansfield, filed a dissenting opinion, saying in part:

Today, our court’s majority strips Iowa women of their bodily autonomy by holding that there is no fundamental right to terminate a pregnancy under our state constitution. I cannot stand by this decision. The majority’s rigid approach relies heavily on the male-dominated history and traditions of the 1800s, all the while ignoring how far women’s rights have come since the Civil War era. It is a bold assumption to think that the drafters of our state constitution intended for their interpretation to stand still while we move forward as a society. Instead, we should interpret our constitution through a modern lens that recognizes how our lives have changed with the passage of time.

Justice Mansfield, joined by Chief Justice Christensen and Justice Waterman, filed a dissenting opinion saying in part:

I believe that subjecting a near-total ban on abortion to a rational basis test—the same test we apply to traffic cameras, and a more forgiving test than the one we apply to a law not allowing county auditors to correct defective absentee ballot applications—disserves the people of Iowa and their constitution. The liberty protected by article I, section 9 of the Iowa Constitution includes a woman’s ability to make decisions regarding her own body, just as it includes rights of procreation, parenting, and to use contraception.

Friday, June 28, 2024

Wisconsin Supreme Court: Harassment Injunction Against Anti-Abortion Protester Vacated

In Kindschy v. Aish, (WI Sup. Ct., June 27, 2024), the Wisconsin Supreme Court ordered a trial court to vacate a harassment injunction issued against an anti-abortion protester. At issue were allegedly threatening statements made to nurse practitioner Nancy Kindschy on three different dates as she left work at a family planning clinic. For example, defendant Brian Aish warned Kindschy that she "had time to repent, that 'it won't be long before bad things will happen to you and your family,' and that 'you could get killed by a drunk driver tonight.' " The court said in part:

We conclude that the injunction is a content-based restriction on Aish's speech, and therefore complies with the First Amendment only if: (1) Aish's statements were "true threats" and he "consciously disregarded a substantial risk that his [statements] would be viewed as threatening violence;" or (2) the injunction satisfies strict scrutiny; that is, it is narrowly tailored to achieve a compelling state interest.... On the record before us, we hold that the injunction fails to satisfy either of these two standards. We therefore reverse the decision of the court of appeals and remand to the circuit court with instructions to vacate the injunction.

The court explained further:

In this case, the circuit court's harassment injunction was issued before Counterman [v. Colorado] was decided [by the U.S. Supreme Court]. The circuit court therefore did not evaluate whether Aish's statements were true threats, or whether he "consciously disregarded a substantial risk that his communications would be viewed as threatening violence." ... Because the circuit court failed to make clear findings regarding Aish's subjective mental state as it relates to his statements to Kindschy, we need not decide whether Aish's statements were true threats. Whether they were true threats or not, the injunction cannot be justified on true-threats grounds.,,,

Justice Bradley filed a concurring opinion, saying in part:

On their face, Aish's statements cannot be interpreted as true threats.

Aish uttered words of caution or warnings, not threats of violence....

More importantly, none of the three statements suggested Aish or a co-conspirator would be the one to cause any harm to Kindschy. At most, the statements suggested unaffiliated third parties could cause Kindschy harm, like a "drunk driver."

Thomas More Society issued a press release announcing the decision.

Oklahoma Education Head Requires All Schools to Incorporate the Bible into Their Curriculum

Yesterday, Oklahoma State Superintendent of Public Instruction Ryan Walters issued a Memo (full text) to all public-school superintendents in the state requiring them to incorporate the Bible into their schools' curriculum. The Memo reads in part:

Effective immediately, all Oklahoma schools are required to incorporate the Bible, which includes the Ten Commandments, as an instructional support into the curriculum across specified grade levels, e.g. grades 5 through 12....

The Bible is one of the most historically significant books and a cornerstone of Western civilization, along with the Ten Commandments. they will be referenced as an appropriate study of history, civilization, ethics, comparative religion, or the like, as well as for their substantial influence on our nation's founders and the foundational principles of our Constitution. This is not merely an educational directive but a crucial step in ensuring our students grasp the core values and historical context of our country....

Adherence to this mandate is compulsory....

The Department of Education also issued a press release announcing the new policy. KFOR News reports on the new policy. [Thanks to Thomas Rutledge for the lead.]

City-Sponsored Prayer Vigil Violated Establishment Clause

In Rojas v. City of Ocala, (MD FL, June 26, 2024), a Florida federal district court held that a prayer vigil in the town square organized by the police department violated the Establishment Clause. The 2014 vigil was planned in order to encourage witnesses to a shooting spree to come forward. The court in a previous decision found that the vigil violated the Establishment Clause, but the 9th Circuit remanded the case after the U.S. Supreme Court in 2022 repudiated the Lemon test and adopted a new test for determining when there has been an Establishment Clause violation. (See prior posting.) Reflecting on the time that had passed since the vigil, the court said:

In the meantime, the Chief of Police, Greg Graham, passed away; the Mayor of Ocala at the time left office; and the Prayer Vigil (which occurred in 2014) has not been repeated. Thus, the Court inquired whether it would make sense to call it a day on this timeworn litigation. But the parties, both represented by lawyers who specialize in First Amendment religion cases, insist on going forward. And, as the Court previously awarded nominal damages, the case is not moot.... So on we go.

Reaching the conclusion that under the Supreme Court's new Establishment Clause test set out in Kennedy v. Bremerton School District there was still an Establishment Clause violation, the court said in part:

Based on the undisputed facts, the City’s involvement in conceiving, organizing, and implementing the Prayer Vigil is government sponsorship of a religious event...

... [T]he City’s support of the Prayer Vigil favored a religious viewpoint. While the Prayer Vigil was geared towards Christianity, there is some evidence that it was not limited to any one faith.... But that thin layer of neutrality is not enough to avoid an Establishment Clause violation....

Similarly, Chief Graham’s offer to connect an objector, Paul Tjaden, with organizers... is not comparable to neutrality.... Trying to achieve neutrality towards religion by inviting an atheist to speak at an event whose only purpose is prayer fails to treat the secular viewpoint with the same level of respect being provided to religious prayer.

As Kennedy commands, the Court bases its decision on a “historically sensitive understanding of the Establishment Clause”....

Suit Challenges Michigan Medicaid Ban on Abortion Funding

Suit was filed yesterday in the Michigan Court of Claims challenging the exclusion of abortion coverage from the state's Medicaid program. Plaintiff is a local YWCA which operates a Reproductive Health Fund that provides financial support for county residents for reproductive health care, including abortion services. The complaint (full text) Young Women's Christian Association of Kalamazoo, Michigan v. State of Michigan, (MI Ct. Cl., filed 6/27/2024), alleges that the exclusion violates the state Constitutional Amendment protecting reproductive freedom, the Michigan Reproductive Health Act which implemented the Amendment and the ban on sex discrimination. ACLU issued a press release announcing the filing of the lawsuit.

Thursday, June 27, 2024

Supreme Court Backs Off Deciding Whether EMTALA Pre-empts Idaho's Abortion Ban

In Moyle v. United States, (Sup. Ct., June 27, 2024), the U.S. Supreme Court reinstated an injunction that had been issued by an Idaho federal district court (see prior posting) which barred Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act. The Supreme Court did this in a per curiam order that vacated a previous stay of the injunction issued by the Supreme Court and which returned the case to the 9th Circuit Court of Appeals, finding that certiorari had been improvidently granted.

Justice Kagan, joined by Justice Sotomayor filed an opinion concurring with the dismissal, saying in part:

Idaho’s arguments about EMTALA do not justify, and have never justified, either emergency relief or our early consideration of this dispute....

[Idaho] mainly argues that EMTALA never requires a hospital to “offer medical treatments that violate state law,” even when they are needed to prevent substantial health harms.... In my view, that understanding of EMTALA is not “likely to succeed on the merits,” and so cannot support a stay of the injunction.

Justice Jackson concurred in the portion of Justice Kagan's opinion that responded to Justice Alito's dissenting opinion.

Justice Barrett, joined by Chief Justice Roberts and Justice Kavanaugh filed a concurring opinion, saying in part:

A grant of certiorari before judgment presumes that further proceedings below are unnecessary to the Court’s resolution of the question presented. That was a miscalculation in these cases, because the parties’ positions are still evolving. The United States has clarified that EMTALA’s reach is far more modest than it appeared when we granted certiorari and a stay. Idaho law has materially changed since the District Court entered the preliminary injunction, and, based on the parties’ arguments before us, it seems that the framing of these cases has not had sufficient opportunity to catch up...

On top of that, petitioners have raised a difficult and consequential argument, which they did not discuss in their stay applications, about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal law.

Justice Jackson filed an opinion concurring in part and dissenting in part, saying in part:

This Court typically dismisses cases as improvidently granted based on “circumstances . . . which ‘were not . . . fully apprehended at the time certiorari was granted.’” ... This procedural mechanism should be reserved for that end—not turned into a tool for the Court to use to avoid issues that it does not wish to decide.

The reasons that justified our grant of certiorari in these cases still hold true today.... The importance of recognizing Congress’s judgments in EMTALA remains as imperative as ever. The United States is still hamstrung in its ability to enforce federal law while States pass laws that effectively nullify EMTALA’s requirements. And, on the ground, healthcare providers “have been all but paralyzed by legal uncertainties,” placing pregnant patients at risk while they are waiting to be transferred out of State to receive the care they need....

If anything, the need for a clear answer to the Supremacy Clause question has only increased in the intervening months....

Despite the clarity of the legal issue and the dire need for an answer from this Court, today six Justices refuse to recognize the rights that EMTALA protects....

Justice Alito, joined by Justice Thomas and in part by Justice Gorsuch, filed a dissenting opinion, saying in part:

At no point in its elaboration of the screening, stabilization, and transfer requirements does EMTALA mention abortion. Just the opposite is true: EMTALA requires the hospital at every stage to protect an “unborn child” from harm....

For those who find it appropriate to look beyond the statutory text, the context in which EMTALA was enacted reinforces what the text makes clear. Congress designed EMTALA to solve a particular problem—preventing private hospitals from turning away patients who are unable to pay for medical care.... And none of many briefs submitted in this suit has found any suggestion in the proceedings leading up to EMTALA’s passage that the Act might also use the carrot of federal funds to entice hospitals to perform abortions. To the contrary, EMTALA garnered broad support in both Houses of Congress, including the support of Members such as Representative Henry Hyde who adamantly opposed the use of federal funds to abet abortion.....

EMTALA is an exercise of Congress’s spending power. And when Congress relies on its authority to attach conditions to the receipt of federal funds, special rules apply....

The potential implications of permitting preemption here are far-reaching. Under the Government’s view, Congress could apparently pay doctors to perform not only emergency abortions but also third-trimester elective abortions or eugenic abortions. It could condition Medicare funds on hospitals’ offering assisted suicide even in the vast majority of States that ban the practice....

NBC News reports on the decision.

Pro-Life Pregnancy Centers May Move Ahead with Challenges to Vermont Regulations

In National Institute of Family and Life Advocates v. Clark, (D VT, June 14, 2024), a Vermont federal district court allowed three pro-life pregnancy centers to move ahead with free speech challenges to Vermont's regulation of limited-service pregnancy centers. At issue is a prohibition on disseminating misleading information about the services offered by such pregnancy centers as well as a provision making health care professionals at these pregnancy centers responsible for the conduct and speech of non-licensed individuals. The statute also provides that offering services to reverse a medication abortion constitutes unprofessional conduct by health care workers at the centers. The court rejected the state's claim that the speech being regulated is commercial speech or is regulation of professional conduct that merely incidentally regulates speech. It allowed plaintiffs to move ahead with their claims that the statutes discriminate on the basis of the viewpoint. However, the court dismissed plaintiffs' vagueness claims. ADF issued a press release announcing the decision.

Michigan Court Enjoins Abortion Restrictions Including 24-Hour Waiting Period and Consent Form

In Northland Family Planning Center v. Nessel, (MI Ct. Cl., June 25, 2024), the Michigan Court of Claims issued a preliminary injunction against enforcement of three restrictions on abortion procedures found in Michigan law. The enjoined provisions impose a 24-hour mandatory waiting period, require a uniform informed consent for women seeking an abortion, and bar advanced practice clinicians from performing abortions. The court held that the provisions are unconstitutional under a state constitutional amendment adopted by referendum in 2022 which grants every individual a fundamental right to reproductive freedom and provides that an "individual’s right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means." The court said in part:

... [T]he Court is convinced that the [24-hour] mandatory delay exacerbates the burdens that patients experience seeking abortion care, including by increasing costs, prolonging wait times, increasing the risk that a patient will have to disclose their decision to others, and potentially preventing a patient from having the type of abortion that they prefer....

The informed-consent provisions, read as whole, are designed to force a patient to consider the alternative of not having an abortion. The manner in which the information is presented is not neutral; it is designed to eschew abortion in favor of completing a pregnancy. This forced deliberation, through the mandatory informed-consent process, burdens and infringes upon a patient’s right to make and effectuate decisions about abortion care. The State is metaphorically putting its finger on the scale, thereby infringing upon a patient’s deliberative process.

The court however refused to enjoin provisions calling for oral counseling against coercion and providing resources to victims of domestic violence. Bridge Michigan reports on the decision.

Wednesday, June 26, 2024

Oklahoma Supreme Court Says Creation of Religious Charter School Is Unconstitutional

In Drummond v. Oklahoma Statewide Virtual Charter School Board, (OK Sup, Ct., June 25, 2024), the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. The court said in part:

Although a public charter school, St. Isidore is an instrument of the Catholic church, operated by the Catholic church, and will further the evangelizing mission of the Catholic church in its educational programs. The expenditure of state funds for St. Isidore's operations constitutes the use of state funds for the benefit and support of the Catholic church. It also constitutes the use of state funds for "the use, benefit, or support of . . . a sectarian institution." The St. Isidore Contract violates the plain terms of Article 2, Section 5 of the Oklahoma Constitution....

Because it is a governmental entity and a state actor, St. Isidore cannot ignore the mandates of the Establishment Clause, yet a central component of St. Isidore's educational philosophy is to establish and operate the school as a Catholic school. St. Isidore will fully incorporate Catholic teachings into every aspect of the school, including its curriculum and co-curricular activities. It will require students to spend time in religious instruction and activities, as well as permit state spending in direct support of the religious curriculum and activities within St. Isidore--all in violation of the Establishment Clause....

... [W]hat St. Isidore requests from this Court is beyond the fair treatment of a private religious institution in receiving a generally available benefit, implicating the Free Exercise Clause. It is about the State's creation and funding of a new religious institution violating the Establishment Clause.12 Even if St. Isidore could assert free exercise rights, those rights would not override the legal prohibition under the Establishment Clause. Compliance with the Establishment Clause in this case is a compelling governmental interest that satisfies strict scrutiny under other provisions of the First Amendment.

Vice Chief Justice Rowe concurred in part and dissented in part, saying that he concurred only in the conclusion "that Article 1, Section 5 of the Oklahoma Constitution mandates that public charter schools are nonsectarian."

Justice Kuehn dissented, saying in part:

St. Isidore would not become a "state actor" merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.

AP reports on the decision.

Israel's Supreme Court Orders Drafting of Haredi Men

Yesterday, Israel's Supreme Court in a controversial ruling ordered the government to end draft deferments that have been given to ultra-Orthodox Jewish men studying in yeshivas. According to The Guardian:

The unanimous ruling on Tuesday, from an expanded panel of nine judges, upheld an interim decision last month that the state had no authority to offer the current exemption for ultra-Orthodox, or Haredi, men. It found that yeshivas – Orthodox seminaries for Torah study – should be ineligible for state subsidies unless students enlisted in the military.

The court ruled the state was carrying out “invalid selective enforcement, which represents a serious violation of the rule of law, and the principle according to which all individuals are equal before the law … In the midst of a grueling war, the burden of inequality is harsher than ever and demands a solution.”

According to Times of Israel, within hours after the Court's decision, Israel's Attorney General ordered the Israel Defense Forces to immediately draft 3000 yeshiva students and ordered government ministries to stop transferring already-appropriated funds to yeshivas where students were studying in lieu of military service.

Tuesday, June 25, 2024

Suit Challenges Louisiana's Law Requiring Posting of 10 Commandments in Public Schools

Suit was filed yesterday in a Louisiana federal district court by a group of parents (some of whom are clergy) on behalf of their minor children challenging Louisiana's recently enacted statute that requires the posting of the Ten Commandments in every public-school classroom. Contending that the law violates the Free Exercise and Establishment Clauses, the complaint (full text) in Roake v. Brumley, (MD LA, filed 6/24/2024) alleges in part:

Permanently posting the Ten Commandments in every Louisiana public-school classroom—rendering them unavoidable—unconstitutionally pressures students into religious observance, veneration, and adoption of the state’s favored religious scripture. It also sends the harmful and religiously divisive message that students who do not subscribe to the Ten Commandments—or, more precisely, to the specific version of the Ten Commandments that H.B. 71 requires schools to display—do not belong in their own school community and should refrain from expressing any faith practices or beliefs that are not aligned with the state’s religious preferences. And it substantially interferes with and burdens the right of parents to direct their children’s religious education and upbringing.

...The state’s main interest in passing H.B. 71 was to impose religious beliefs on public-school children, regardless of the harm to students and families. The law’s primary sponsor and author, Representative Dodie Horton, proclaimed during debate over the bill that it “seeks to have a display of God’s law in the classroom for children to see what He says is right and what He says is wrong.”

The advocacy groups bringing the suit (ACLU, Americans United, FFRF) issued a press release announcing the filing of the suit.

Certiorari Denied In Religious Broadcasters Challenge to Royalty Rates

The U.S. Supreme Court yesterday denied review in National Religious Broadcasters Noncommercial Music License Committee v. Copyright Royalty Board, (Docket No. 23-927, certiorari denied 6/24/2024). (Order List.) At issue in the case was whether the Copyright Royalty Board violated the Religious Freedom Restoration Act when the royalties it set for non-commercial religious broadcasters that stream copyrighted songs over the Internet were 18 time higher than the rates it set for the secular National Public Radio. (See prior related posting and ADF's press release for additional details.) Here are links to all the documents filed in the case.

Supreme Court Will Review Question of Sovereign Immunity for Taking of Assets in Holocaust

The U.S. Supreme Court yesterday granted review in Republic of Hungary v. Simon, (Docket No. 23-867, certiorari granted 6/24/2024) (Order List), a long-running case in which Holocaust survivors have sued to recover the value of property which Hungary expropriated from them during the Holocaust. At issue is whether the expropriation exception to sovereign immunity under the Foreign Sovereign Immunities Act applies so that the suit can be pursued in American courts. Here the seized assets were liquidated, and the proceeds were placed in the Hungarian treasury. Under the FSIA, those proceeds must have been used in a commercial activity in the United States in order for U.S. courts to have jurisdiction. At issue in the appeal are questions of who must show that commercial nexus. The D.C. Circuit below in its 2023 decision (full text) which is on appeal began its opinion as follows:

In 1944, as World War II neared its end, the Hungarian government implemented an accelerated campaign to exterminate its remaining Jewish population. Within a matter of months, the government systematically executed over half a million Jews—roughly two-thirds of the Jewish population in Hungary at the war's outset. This state-perpetrated genocidal campaign ranks among the greatest crimes in human history.

The questions raised by these appeals bear on whether survivors of the Hungarian Holocaust may hale the Hungarian government and its instrumentalities into United States courts to answer for a subset of the wrongs they committed—namely, their confiscation of property from victims of the Holocaust.

The SCOTUSblog case page has links to all the pleadings in the case.

Certiorari Denied in Connecticut Repeal of Religious Exemptions from Vaccination Requirements

The U.S. Supreme Court yesterday denied review in We the Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (Docket No. 23-643, certiorari denied 6/24/2024). (Order List.) In the case, the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision, upheld the constitutionality of Connecticut's repeal of religious exemptions from its mandatory vaccination laws, while retaining medical exemptions. (See prior posting.) AP reports on the Supreme Court's action.