Two Additional Courts Enjoin Enforcement of New Title IX Rules

In addition to the nationwide preliminary injunction against enforcement of the Department of Education's new Title IX rules on transgender discrimination (see prior posting), two other federal district court last week issued more geographically limited preliminary injunctions against enforcement of the same rules. In State of Florida v. Department of Health and Human Services, (MD FL, July 3, 2024),  a Florida federal district court enjoined enforcement within Florida, saying in part:

HHS and the Final Rule interpret Title IX, and hence section 1557, to prohibit discrimination based on “gender identity.” 89 Fed. Reg. at 37,699 (45 C.F.R. § 92.101(a)(2)). The Final Rule is stillborn and a nullity if Title IX does not prohibit discrimination on the basis of “gender identity.” The Eleventh Circuit has spoken on this point, clearly: Title IX does not address discrimination on the basis of gender identity. Adams v. Sch. Bd. of St. John’s Cnty., 57 F. 4th 791, 812–15 (11th Cir. 2022) (en banc). Frankly, this ends the issue—the new Rule appears to be a dead letter in the Eleventh Circuit.

In State of Kansas v. U.S. Department of Education, (D KS, July 2, 2024), a Kansas federal district court issued a preliminary injunction against enforcement of the new rules in Kansas, Alaska, Utah and Wyoming, saying in part:

... [T]he purpose of Title IX was to protect “biological women from discrimination in education[;] [s]uch purpose makes it difficult to sincerely argue that, at the time of enactment, ‘discrimination on the basis of sex’ included gender identity, sex stereotypes, sexual orientation, or sex characteristics.”... The DoE’s reinterpretation of Title IX to place gender identity on equal footing with (or in some instances arguably stronger footing than) biological sex would subvert Congress’ goals of protecting biological women in education....

... [T]he court finds that the Final Rule involves issues of both vast economic and political significance and therefore involves a major question.... As such, Congress must have given the agency “clear statutory authorization” to promulgate such a Final Rule.....The court finds that Congress did not give such clear statutory authorization to the DoE....

... [T]he Final Rule violates the Spending Clause because it introduces conditions for spending that were not unambiguously clear in Title IX....

The court finds that Plaintiffs have shown that the Final Rule violates he First Amendment by chilling speech through vague and overbroad language.....

 [T]he court finds that the Final Rule is arbitrary and capricious because it offers an implausible explanation for agency action, is a sharp departure from prior action without a reasonable explanation, and failed to consider important interests as discussed herein.

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.

Alaska Supreme Court Reverses Dismissal of Muslim Inmate's RLUIPA Claims

In Din v. State of Alaska, Department of Corrections, (AK Sup. Ct., Feb. 22, 2023) the Alaska Supreme Court vacated a trial court's dismissal of a suit brought under RLUIPA and the Alaska constitution by a Muslim inmate and remanded the case for further factual development.  At issue was the inmate's requests to pray five time per day using scented prayer oils and to eat halal meat as part of his diet. Prison rules only allowed use of scented oils for weekly outdoor congregate religious activities and only provided vegetarian or vegan meals for those requesting a halal diet. The court concluded that both restrictions imposed a substantial burden on the inmate's religious exercise. It went on:

Prison security is a compelling government interest. But DOC’s position that possessing prayer oils is prohibitively dangerous is difficult to reconcile with the fact that it allows inmates to possess “skin cream/oil.” Inmate and staff health are also important government interests, and DOC asserts that “even a seemingly mild scent may cause an adverse respiratory reaction.” But DOC’s position is difficult to reconcile with its policies allowing prisoners to possess other fragranced items, like deodorant, hair spray, and air fresheners....

DOC also asserts that the estimated additional cost of providing “halal/kosher meals . . . to accommodate all Alaska inmates who claim to need a special halal/kosher diet . . . would exceed $1,000,000 annually.” Din contends that this is not a compelling reason because providing him pre-packaged halal food would cost DOC approximately $7,700 more than the cost of regular meals, a small sum compared to its massive budget. 

Cost management obviously is an important government interest. But Congress contemplated that RLUIPA may “require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise”....

The court also concluded that there are genuine issues of material fact as to whether present policies are the least restrictive means to achieve the state's interests. 

Alaska Supreme Court Upholds Award Of Vaccination Decision-Making To Father Over Mother's Religious Objections

 In Lady Donna Dutchess v. Dutch, (AK, March 9, 2022), the Alaska Supreme Court upheld a trial court's decision awarding sole authority to make decisions regarding vaccinations to a divorced father. The mother objected to all vaccinations for the children on religious grounds. The mother contended that this violated her free exercise rights under the state and federal constitutions. Rejecting that argument, the Alaska Supreme Court said in part:

We are not convinced that heightened scrutiny necessarily applies to child custody determinations allocating decision-making authority between parents, nor did the parties brief this issue. We note that several other state courts have concluded that strict scrutiny does not apply to a custody determination between parents with divergent religious convictions.... [A] court’s application of custody statutes in a manner exhibiting “a preference for the religious over the less religious” would essentially place “government on the side of organized religion, a non-secular result that the establishment clause is designed to prevent.” ...[T]he superior court here properly considered how the mother’s desire not to vaccinate the children was contrary to the recommendation of the children’s pediatrician and counter to their best interests.

Even if we were to apply heightened scrutiny ... , the superior court’s ruling would withstand review. The Statehas “an undeniably compelling interest in protecting the health of minors.”

Faith-Based Homeless Shelter Denied Injunction Against Alaska City's Anti-Discrimination Laws

In Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, Dec. 20, 2021), an Alaska federal district court refused to grant injunctive relief to a faith-based homeless shelter for women that objected to Anchorage's newly revised public accommodation and housing anti-discrimination laws. The shelter refuses to house transgender women. The court concluded that the faith-based shelter failed to show a credible threat of enforcement of either the public accommodation or the housing sections of the new law. The city takes the position that the provisions do not apply to the shelter and disclaims any intent to prosecute. However the court held that the shelter does have standing to sue for damages for the nearly 3-month period before the city disclaimed any intent to prosecute under the housing provisions. Anchorage Daily News reports on the decision. 

Alaska Homeless Shelter Challenges City's Public Accommodation Law

Last week, an Anchorage, Alaska women's homeless shelter filed suit in an Alaska federal district court contending that the city's recently amended public accommodation law that requires it to house transgender women violates the shelter's 1st and 14th Amendment rights.  The law prohibits discrimination on the basis of sex or gender identity. The complaint (full text) in Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, filed 6/30/2021), says in part:

Defendants insist Hope Center’s religious beliefs— specifically, its beliefs about sexuality and gender—are discriminatory and deserving of punishment. In Defendants’ view, providing charitable shelter exclusively to vulnerable women is unlawful sex and gender-identity discrimination....

Because of its religious beliefs and desire to create a safe and secure environment, Hope Center allows only biological women to stay overnight at the shelter....

No Hope Center policy prohibits biological women who identify as men from accessing the shelter....

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

Homeless Shelters Excluded From City's Anti-Discrimination Ordinances

In Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, Aug. 9, 2019), an Alaska federal district court issued a preliminary injunction barring enforcement of two of Anchorage's anti-discrimination ordinances against a faith-based homeless shelter for women which admits only individuals who were determined to be female at birth. Thus transgender men may be admitted, but transgender women may not.  The court concluded that homeless shelters are not covered by either the fair housing or public accommodation provisions of the city's code. ADF issued a press release announcing the decision.

Transgender Bathroom Issue In High School Leads To Protest and Reaction

The ongoing issue in public schools of allowing transgender students to use bathrooms of their choice has now created issues of how to treat student protests, self-help, and reactions to them. AP reports that a group of some seven boys at Alaska's North Pole High School went into the girl's bathroom to protest the use of the boys' bathroom by a transgender student who is transitioning from female to male.  A girl who was blocked from leaving the girl's bathroom kneed one of the seven boys, injuring him enough that he was sent to a hospital.  The girl was suspended from school and the seven boys were also disciplined.

Evangelists Win Narrow Settlement Victory In Alaska Park Dispute

According to KTUU News, a father-daughter evangelist team have won a narrow victory in the settlement of their lawsuit against the city of Girdwood, Alaska.  They sued challenging the city's "No dogs, no politics, no religious orders" requirement at Girdwood's annual Forest Fair. (See prior posting.) Under the settlement, the city will allow the evangelists to distribute leaflets in the park that is used by Forest Fair. However whether they will be able to proselytize at Forest Fiar itself next year will be up to the Fair's promoters.  A city attorney said that control of the park during events like the Fair in in the hands of the organization that has received a permit to stage the event.

Alaska Borough's Invocation Policy Held Unconstitutional

KBBI News reports that an Alaska state trial court judge yesterday in Hunt v. Kenai Peninsula Borough (complaint) held that the Kenai Peninsula Borough's invocation policy violates the Establishment Clause of the Alaska Constitution.  The Borough implemented a policy that allows only representatives of pre-approved religious organizations to offer invocations at meetings of the Kenai Peninsula Borough Assembly. The move came after a member of the Satanic Temple offered an invocation that ended with "Hail Satan."

Alaska Christian Women's Shelter Challenges Requirement It Serve Transgender Women

In Anchorage, Alaska, a Christian soup kitchen and women's shelter-- the Hope Center-- has filed a federal lawsuit against the Anchorage Equal Rights Commission seeking to end the Commission's investigation of the Center. According to KTTU News, The controversy grows out of the Hope Center's denial of shelter services to a transgender woman and her filing of a discrimination complaint. The suit seeks to end the Commission's investigation of the Center for violation of the city's anti-discrimination law that protects against discrimination on the basis of gender identity. The Center's complaint alleges in part:

It would not only be dangerous and against common sense, but would violate the Hope Center’s sincerely held religious beliefs to admit biological men into its shelter and allow them to sleep side by side and disrobe next to women, some of whom have been assaulted by men and fear for their safety.

Anti-Transgender Bathroom Initiative Voted Down In Anchorage

Anchorage Daily News reports that in Alaska's first-ever vote-by-mail election, a so-called "bathroom bill" initiative was defeated by Anchorage voters.  The Ballot Measure would have required that all municipally-owned facilities limit restrooms and locker rooms by sex as determined biologically rather than by gender identity.  The initiative would also have permitted other employers and public accommodations to adopt the same policy.  With virtually all ballots counted, the vote as reported last Friday was 40,378 opposed and 36,234 in favor.  Metro Weekly reports on reactions to the defeat.

Suit Challenges Rules Against Proselytizing At Alaska Town Festival

The Center for Religious Expression last week announced the filing of a federal lawsuit in Alaska challenging a rule at the Girdwood, Alaska Forest Fair that prohibits the distribution of religious literature.  Anchorage Daily News has more on the lawsuit:

During the Forest Fair, an annual Girdwood summer festival that celebrates tie-dye, home-spun crafts and public hula-hooping, signs posted on the tall trees alert visitors to three main rules: "No dogs, no politics, no religious orders."

But one of those rules, a doctrine of the fair for more than four decades, now faces a legal challenge. Last week, two evangelical Christians, one of whom is a well-known activist, filed a lawsuit in federal court saying the ban on "religious orders" infringes on their constitutional right to free speech....

The two plaintiffs say they were told that they could not continue to proselytize and distribute literature in the park where the festival is held.  They were required to move to sidewalks outside the park to distribute their gospel tracts. [Thanks to Jeff Pasek for the lead.]

Alaska Appeals Court: Reconsider Sex Offender's Bar On Taking His Children To Church

In Binder v. State of Alaska, (AK, March 30, 2016), an Alaska appeals court remanded a case to the trial court to reconsider defendant's request that his conditions of probation be modified to allow him to visit and attend church with his children. The court said that it was not enough to leave this issue to the discretion of defendant's probation officer. Instead the court should decide whether, for example, defendant could attend church with his children supervised by a person approved by the court or his probation officer. The appeals court explained:

When probation conditions potentially infringe fundamental constitutional rights, a sentencing judge must scrutinize the conditions and consider whether less restrictive alternatives might suffice.

Mother's Move To Eskimo Village Does Not Justify Reduction In Her Child Support Obligations

In Sharpe v. Sharpe, (AK Sup. Ct., Jan. 8. 2016), the Alaska Supreme Court in a 3-2 decision upheld a trial court's denial of a mother's motion to reduce the amount she is required to pay under a child-support order. The mother, who is the non-custodial parent of an 10 year old daughter, gave up her high-paying Alaska pipeline job to move back to her Yup'ik Eskimo community.  She adopted a subsistence lifestyle there to meet her her cultural, spiritual, and religious needs and help her in her battle with alcohol. Under Alaska rules, the court can order a parent to pay more than would otherwise be justified by his or her current income level if the parent is "voluntarily and unreasonably" unemployed or underemployed. The majority concluded that this was a voluntary and unreasonable decision by the mother to earn less than she is capable of earning.

On appeal, the mother also argued that the child support order burdens her free exercise of religion as protected by the Alaska Constitution.  She contended that the order in effect requires her to give up her Native religious and cultural heritage to maintain a stressful job in Anchorage. The majority rejected her claim because it had not been raised at trial.

Justice Winfree dissenting argued in part:

Today’s decision has enormous negative implications. It trivializes and devalues Alaska Natives’ cultural, spiritual, and religious connections to their villages and their subsistence lifestyle.  It requires a non-custodial Native parent in rural Alaska to pay child support based on what the parent could earn in urban Alaska regardless of the legitimacy of choosing to live in rural Alaska.... [I]t infringes on constitutionally protected religious and privacy rights. 

Anchorage, Alaska Passes LGBT Anti-Discrimination Law Over Religious Objections

Late Tuesday night, the Anchorage, Alaska Assembly by a vote of  9-2 enacted amendments to the city's equal rights ordinance barring discrimination on the basis of sexual orientation and gender identity in housing, employment, public accommodations and education. (Full text of Ordinance as proposed.) Alaska Dispatch News reporting on the Assembly's actions says that the ordinance will take effect when signed by Assembly Chair Dick Traini, expected on Friday. Mayor Ethan Berkowitz does not plan to veto the ordinance. A package of 17 proposed amendments (full text) were largely rejected. They focused on expanding religious exemptions and rules for gender-segregated restrooms.  According to the Dispatch News:

In the end, only two were approved: a Flynn amendment stating that nothing in the law would trump state and federal First Amendment rights, and an Evans amendment adding a reference to a Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church and School vs. EOCC, to define a “ministerial exemption.”

The Assembly narrowly rejected Assembly Chair Dick Traini's proposals to extend the city’s existing religious preference law to “nonprofit affiliates,” such as Providence Alaska Medical Center, and to add language that would prevent employers from firing employees for expressing religious views.

Opponents of the law, who argue that it infringes religious liberty, plan to seek a referendum to repeal it. The Assembly rejected a proposal to require a public advisory vote on the measure.  Alaska Public Media reported:

Opposition to the bill came primarily from two socially conservative Assembly Members from the Eagle River Chugiak area, Amy Demboski and Bill Starr, both of whom say it infringes on residents’ religious and free speech rights. Much of the audience was wearing red–a sign of opposition to the measure, called for by a coalition of conservative faith groups. After hours of impassioned testimony that often addressed the crowd instead of fellow Assembly Members, Starr left his seat behind the dais to speak from the floor as a citizen rather than official.

“I buy into that Bible, that book, that says homosexuality and that type of deviant behavior is wrong.”

He then slipped on a red vest before receiving the night’s only standing ovation.

“And I’ll tell you what red is–somebody said ‘well what what are you wearing red for?’ It’s the blood of Jesus Christ folks, that’s what it represents.”

Alaska Free Exercise Clause Defense To Illegal Salmon Fishing Is Rejected

In Phillip v. State of Alaska, (AK Ct. App., March 27, 2015), an Alaska court of appeals refused to dismiss criminal charges against 13 Yup'ik Eskimo fishermen charged with violating the Alaska Department of Fish and Game’s emergency orders restricting king salmon fishing on the Kuskokwim River.  The Yup'ik claimed that their conduct is protected by the free exercise clause of the Alaska Constitution. The Alaska Supreme Court has held that the test under the state Constitution for whether an individual is entitled to a religious exemption from a facially neutral law requires assessing the validity of the individual's religious interest and then determining whether the State can prove a compelling interest that would justify curtailing the religiously-based practice.  Applying that test here, the appeals court said:

[I]t would seriously hamper the Department’s ability to manage the fishery for sustained yield if courts required the State to show that each emergency action it took was the least restrictive alternative available. ... Instead, we agree with the district court that the question ... is whether the State can meet its burden of proving that its compelling interest in maintaining a healthy and sustainable king salmon population would be harmed if the court granted the religious exemption sought by the defendants.... [T]he State met that burden here.

AP reports on the decision.

Avalanche of Same-Sex Marriage Legal Developments

In the last several days there has been an avalanche of legal developments relating to same-sex marriages:

Alaska:  Yesterday in Parnell v. Hamby, the U.S. Supreme Court issued an order denying a stay of a federal district court's decision striking down Alaska's same-sex marriage ban.

Arizona: in Majors v. Horne,(D AZ, Oct. 17, 2014) and Connolly v. Jeanes, (D AZ, Oct. 17, 2014), an Arizona federal district court in two short and substantially identical opinions struck down Arizona's ban on same-sex marriages, citing the 9th Circuit's decision earlier this month in Latta v. Otter striking down bans in Nevada and Idaho. (See prior posting.) State Attorney General Tom Horne announced he would not appeal and sent a letter to the state's 15 county clerks telling them that they may not deny marriage licenses to same-sex couples. Arizona Republic reports on developments.

Wyoming: In Guzzo v. Mead, (D WY, Oct. 17, 2014), a Wyoming federal district court granted a preliminary injunction against Wyoming's ban on same-sex marriage and recognition of same-sex marriages performed elsewhere.  However the court also granted a stay of its injunction until Oct. 23 to allow an appeal to the 10th Circuit or until an earlier date at which the state informs the court that it will not appeal. Governor Matt Mead's office announced that the state will file a notice with the district court that it will not appeal the decision.

Idaho: Two Christian ministers and their for-profit wedding chapel located across the street from the Kootenai County (Idaho) Clerk’s office (which issues marriage licenses) brought suit in an Idaho federal district court to enjoin the city of Coeur d'Alene from enforcing its anti-discrimination ordinance against them. The 63-page complaint (full text) in Knapp v. City of Coeur d'Alene, (D ID, filed Oct. 17, 2014) contends that the Ordinance violates plaintiffs' 1st and 14th Amendment rights as well as their rights under state law. Plaintiffs also filed a motion for a temporary restraining order or preliminary injunction.  ADF issued a press release announcing the filing of the lawsuit.

North Carolina: In North Carolina, the general counsel of the state's Administrative Office of the Courts on Oct. 14 issued a memo (full text) to judges and magistrates stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples. Refusal to do so could lead to suspension, removal or even criminal charges. In response, on Thursday Rockingham County Magistrate Judge John Kallam who has religious objections to performing same-sex marriages resigned.  Alamance County Judge Jim Roberson, who originally suggested that Magistrates with religious objections be excused from performing same-sex ceremonies, issued a statement yesterday saying that magistrates in his county are required to perform ceremonies for same-sex couples. (Qnotes.)  Time Warner Cable News reported on developments.

Federal Government: On Friday, the U.S. Department of Justice announced that the federal government will now recognize same-sex marriages performed in Indiana, Oklahoma, Utah, Virginia, and Wisconsin for purposes of extending federal benefits. The action came after the Supreme Court refused review of Circuit Court decisions affecting those states. Apparently (though there is some slight ambiguity in DOJ's announcement) the federal government will also recognize same-sex marriages performed in Nevada and Idaho after the Supreme Court refused to stay the 9th Circuit's decision as to those states. (See prior posting.)

Same-Sex Marriage Developments In Kansas, West Virginia, Alaska

Developments relating to same-sex marriages have been moving rapidly in Kansas.  Last Wednesday, Chief Judge Kevin Moriarty of the state's 10th judicial district (Johnson County) issued Administrative Order No. 14-11 (Oct. 8, 2014), instructing the clerk of the court, as well as all deputy clerks, to issue marriage licenses to same-sex couples. However, on Friday (Oct. 10) Kansas Attorney General Derek Schmidt filed a petition (full text) for issuance of a writ of mandamus to stop the Johnson County order from taking effect, and asking the Kansas Supreme Court to decide the issue. (Press release; Memorandum in Support of Petition). Before the state Supreme Court could act, one same-sex couple in Johnson County were married. (Kansas Equality Coalition statement.) However a few hours later, in State of Kansas v. Moriarty, (KA Sup. Ct., Oct. 10, 2014), the state Supreme Court issued a stay of Judge Moriary's order "in the interest of establishing statewide consistency." It set oral arguments for Nov. 6, but said that applications for same-sex marriage licenses may continue to be accepted. As pointed out by KCTV 5 News, the November hearing date is two days after the general election.

Meanwhile in West Virginia, on Thursday (Oct. 9) state Attorney General Patrick Morrisey issued a statement (full text) saying in part:

In the upcoming days, we will now seek to bring to a close the pending litigation over West Virginia’s marriage laws, consistent with the Fourth Circuit’s now-binding decision.... [However] only the State Registrar may alter state marriage forms, and the Secretary of State’s Office has authority over marriage celebrants and their ability to solemnize marriages.  While we will take steps to seek to end the litigation, the conclusion of the lawsuit cannot and will not alone effectuate the Fourth Circuit’s mandate.

AP reports that after the Attorney General's statement, State Registrar Gary Thompson sent a letter to clerks in all 55 West Virginia counties setting out new protocols for marriage licenses allowing for same-sex marriages. At least one couple was issued a license on Friday.

And in Alaska yesterday, a federal court declared its ban on same-sex marriages to be in violation of the 14th Amendment's due process and equal protection clauses.  As reported by Think Progress, the decision in Hamby v. Parnell, (D AK, Oct. 12, 2014), came just two days after the court heard oral arguments in the case. However, according to KTUU News, Alaska Governor Sean Parnell issued a statement Sunday saying that he would appeal the decision.

Alaska Supreme Court Holds Tax Exemption Unconstitutionally Discriminates Against Same-Sex Couples

In State of Alaska v. Schmidt, (AK Sup. Ct., April 25, 2014), the Alaska Supreme Court held that a state tax exemption program that discriminates against same-sex couples violates the state constitution's equal protection clause. Same-sex marriages are not permitted or recognized in the state. Alaska exempts from municipal property tax up to $150,000 in value of a home of a senior citizen or disabled veteran.  The full exemption is available where the senior's or veteran's spouse who co-owns the home also lives there.  However the exemption is reduced where a same-sex partner who co-owns the home lives there. According to the court, this creates an equal protection problem:

we hold that committed same-sex domestic partners who would enter into marriages recognized in Alaska if they could are similarly situated to those opposite-sex couples who, by marrying, have entered into domestic partnerships formally recognized in Alaska.