Suit Challenges Arizona's New Abortion Law

Suit was filed in an Arizona federal district court yesterday challenging two provisions in an abortion law enacted earlier this year. At issue are (1) a provision (the Reason Ban) which bans abortion whenever the providing physician knows that the abortion is due to “a genetic abnormality” and (2) a provision (the Personhood Provision) which requires Arizona laws to be interpreted to give all fertilized eggs, embryos, and fetuses the same rights as other persons. The complaint (full text) in Isaacson v. Brnovich, (D AZ, filed 8/17/2021), alleges in part:

Any reading of [the Reason] ban violates the Due Process Clause of the Fourteenth Amendment and decades of binding precedent confirming that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”...

Because the Personhood Provision fails to provide adequate notice of prohibited conduct and invites arbitrary and discriminatory enforcement..., it is unconstitutionally vague.

The complaint also alleges that the accomplice liability provisions infringe on physicians' speech rights. Center for Reproductive rights issued a press release announcing the filing of the lawsuit.

9th Circuit: Arizona Prison Rules Did Not Substantially Burden Inmate's Religious Exercise

 In Yokois v. Ryan, (9th Cir., July 30, 2021), the U.S. 9th Circuit Court of Appeals affirmed the dismissal of an Arizona inmate's 1st Amendment and RLUIPA claims. The court said in part:

ADC’s policy requiring inmates to go through authorized vendors to purchase religious items was at most, an inconvenience, and not a substantial burden on Yokois’ ability to acquire religious items. Similarly, ... the ADC policy in question only prevented Yokois from pinning religious materials on his bulletin board while he was outside his cell and not using them. As a result, Yokois did not show that these policies so burdened his right to exercise his religion that he felt pressured to abandon his beliefs.

City's Use Permit Requirement Violated State Free Exercise Law

In  Henry v. City of Somerton, (D AZ, June 17, 2021), an Arizona federal district court held that an Arizona city violated the state's Free Exercise of Religion Act when, under a now-amended ordinance, it required a church to obtain a conditional use permit to use rented space for religious services. The court held in part:

The Court finds the unamended Ordinance’s CUP requirement treated the Iglesia on less than equal terms than nonreligious assemblies, such as fraternal organizations.

Because there is no genuine dispute of material facts, the Court will grant summary judgment on the FERA claim. ...

Various other claims against the city were dismissed, including plaintiffs' prior restraint claim:

... [W]ithout even having tried to apply for a CUP, any injury Plaintiffs claim that resulted from the CUP evaluation process is purely conjectural. Plaintiffs cannot claim they were deterred by the CUP evaluation process because, by all accounts, they have been conducting services uninterrupted since the Iglesia opened.

9th Circuit: Denial of Invocation Spot To Satanic Temple Was OK

 In The Satanic Temple, Inc. v. City of Scottsdale, (9th Cir., May 19, 2021), the U.S. 9th Circuit Court of Appeals affirmed an Arizona federal district court's dismissal of a religious discrimination suit by The Satanic Temple.  TST sued after it was not permitted to give a religious invocation at a city council meeting.  The district court concluded that the decision was based on a policy that only allowed organizations with substantial ties to the city to deliver invocations. According to the Court of Appeals:

After weighing the credibility of the witnesses, the district court properly concluded that TST had failed to prove by a preponderance of the evidence that TST’s religious beliefs were a factor, let alone a substantial motivating factor, in Biesemeyer’s decision not to approve TST to give a legislative prayer.

Friendly Atheist blog discusses the case.

Arizona Enacts New Abortion Restrictions

Yesterday Arizona Governor Doug Ducey signed SB 1457 (full text) placing additional limits on abortion in the state. The new law bans abortions sought because of a genetic abnormality of the fetus, except in medical emergencies. It prohibits performance of abortions in facilities run by or located on the property of public educational institutions, except when necessary to save the life of the mother. It prohibits the use of public funds for research that involves fetal cells. It prohibits mail delivery of abortion-inducing drugs. It requires that bodily remains from a surgical abortion be disposed of by cremation or burial, and gives the mother the right to determine the method to be used. ADF issued a press release announcing the bill signing.

9th Circuit Hears Oral Arguments In The Satanic Temple's Suit On Invocations

On Thursday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in The Satanic Temple v. City of Scottsdale. In the case, an Arizona federal district court held that the Satanic Temple had failed to prove that the denial of their request to deliver an invocation at a City Council meeting was because of their religious beliefs. The district court concluded rather that the decision was based on a policy that only allowed organizations with substantial ties to the city to deliver invocations. (See prior posting.) Law& Crime reports on the oral arguments. [Thanks to Scott Mange for the lead.]

School's Refusal To Allow Modified Graduation Cap Upheld

In Waln v. Dysart School District, 2021 U.S. Dist. LEXIS 38345 (D AZ, Feb. 28, 2021), an Arizona federal district court rejected free exercise, free speech and equal protection challenges to a school district's refusal to allow a graduating senior to wear a decorated cap at graduation ceremonies.  The student was a member of the Sioux tribe and for cultural and religious reasons wanted to wear a beaded cap adorned with an eagle feather. The school district allowed Native American students to wear in their hair, or as a necklace or jewelry, but did not permit altered commencement caps. The court said in part:

[A]dopting an appearance of neutrality with regard to religion or cultural viewpoints, and the avoidance of controversy, have been deemed reasonable bases for subject-matter limitations, such as limitations on religious expression, on a student's free speech rights.... In this matter, all expressive speech, including but not limited to religious speech, was prohibited by the dress code blanketly prohibiting the augmentation of graduation caps, and the restriction was reasonable and related to the purpose of the forum. And, most notably, the prohibition of any adornment of any kind on a student's graduation cap during the commencement ceremonies was content-neutral.

Exchange of Apache Sacred Land Does Not Violate RFRA or Free Exercise Clause

 In Apache Stronghold v. United States, (D AZ, Feb. 12, 2021), an Arizona federal district court refused to issue a preliminary injunction to prevent a land exchange between the federal government and two foreign mining companies known as Resolution Copper. The land to be conveyed to Resolution Copper contains a sacred Apache ceremonial ground know as Oak Flat. In addition to rejecting treaty claims, the court concluded that plaintiff has not shown a likelihood of prevailing on its claims under the Free Exercise clause and RFRA, saying in part:

Plaintiff has not been deprived a government benefit, nor has it been coerced into violating their religious beliefs. The Court does not dispute, nor can it, that the Government's mining plans ... will have a devastating effect on the Apache people's religious practices.... However, Oak Flat does not provide the type of "benefit" required under RFRA jurisprudence....

The Southeast Arizona Land Exchange and Conservation Act is facially neutral, and Plaintiff has provided no evidence of any discriminatory intent behind its passage....

Apache Stronghold issued a press release announcing the decision.

Apache Leaders Sue To Prevent Forest Service Transfer of Religious Site

Suit was filed this week in an Arizona federal district court on behalf of traditional Apache religious and cultural leaders seeking to prevent the U.S. Forest Service from transferring to mining companies a parcel of land used by the Western Apache Peoples for traditional religious ceremonies. The complaint (full text) in Apache Stronghold v. United States, (D AZ, filed 1/12/2021) alleges in part:

The deliberate and direct effect of the Defendants’ publicly stated plans and planned actions is to illegally annihilate the religious freedom rights of the Western Apache Peoples at a sacred and actively utilized religious place and traditional Western Apache cultural property known to the Apache since time immemorial as Chi’chil Biłdagoteel [or] as it is commonly known: “Oak Flat.” ***

[T]he Forest Service ... has suddenly publicly stated for the first time its intent to publish a Final Environmental Impact Statement ... on ... January 15, 2021.  That ... will immediately enable the Forest Service to attempt to convey a 2,422-acre parcel of “Forest Service land” to an entity owned entirely by foreign mining corporations, pursuant to a mandate in Section 3003 of the “Cromnibus” National Defense Authorization Act of 2015 ... slipped in at the 11th hour with a total federal government operational shutdown looming....

Apache Stronghold issued a press release announcing the filing of the lawsuit. 

Court Refuses To Decide Whether LDS Church Is Christian

 In Ball v. Ball, (AZ App., Dec. 10, 2020), an Arizona appellate court was called upon to interpret a Parenting Plan that parents had agreed upon three years earlier as part of the dissolution of their marriage. The Plan provided:

Each parent may take the minor children to a church or place of worship of his or her choice during the time that the minor children is/are in his or her care.

Both parents agree that the minor children may be instructed in the Christian faith.

A year after the divorce, the father joined the LDS Church and sometimes took the children to meetings there. The mother objected claiming that the father's church is not Christian. The court held that the reference to "Christian" in the second clause does not limit the father's right to take the children to any place of worship, Christian or not.

The court went on to hold that the ecclesiastical abstention doctrine would bar it from deciding whether the Church of Jesus Christ of Latter Day Saints is part of the Christian faith, saying in part:

That very question has long been a matter of theological debate in the United States. A secular court must avoid ruling on such issues to prevent the appearance that government favors one religious view over another.

Islamic Terrorism Unit In Course Does Not Violate 1st Amendment

In Sabra v. Maricopa County Community College District, (D AZ, Aug. 18, 2020), an Arizona federal district court dismissed a suit challenging the manner in which a community college faculty member taught a portion of a World Politics course. Plaintiffs contend that the instructor's primary message in teaching the Islamic Terrorism module of the course was disapproval of Islam.The court rejected both Establishment Clause and Free exercise challenges, saying in part:

Examining the course as a whole, a reasonable, objective observer would conclude that the teaching’s primary purpose was not the inhibition of religion. The offending component was only a part of one-sixth of the course and taught in the context of explaining terrorism. One aspect of terrorism is Islamic terrorism. Only in picking select quotes from the course can one describe the module as anti-Islam.... [T]he primary effect of Dr. Damask’s course is not the inhibition of the practice of Islam. Therefore, the Plaintiffs’ Establishment Clause claims must be dismissed....

Mr. Sabra was not required to adopt the views expressed by Dr. Damask or the authors Dr. Damask cited to in his course, but only to demonstrate an understanding of the material taught. Dr. Damask’s course did not inhibit Mr. Sabra’s personal worship in any way. Instead, Mr. Sabra was simply exposed to “attitudes and outlooks at odds” with his own religious perspective.... Therefore, as a matter of law, the Court finds that the Plaintiff’s allegations do not amount to a violation of the Free Exercise Clause by the Defendants....

[Thanks to Volokh Conspiracy for the lead.]

Court Upholds Denial of Invocation Slot For Satanic Temple

In Satanic Temple v. City of Scottsdale, (D AZ, Feb. 6, 2020), an Arizona federal district court held that the Satanic Temple failed to prove by a preponderance of the evidence that the denial of their request to deliver a non-theistic invocation at a City Council meeting was because of their religious beliefs. The court rejected defendants' claims that the beliefs of the Satanic Temple do not constitute a religion. However the court credited the testimony of the Acting City Manager that he based his decision on a long-standing unwritten policy that only organizations that had substantial ties to the city could deliver invocations. This decision followed substantial public opposition to the Satanic Temple's appearance, including the orchestration by a church of 15,000 e-mails in opposition. The blog For Infernal Use Only reports on the decision.

UPDATE: In an April 9 opinion (full text), the court, with one exception, refused to amend its findings of fact or to amend its judgment.

Son's Wish To Be Cremated Prevails Over Mother's Religious Objections

In In re Remains of Ghostley, (AZ App., Jan. 22, 2020), a mother appealed the order of a probate court directing that the remains of her adult son be cremated.  The son's father and the son's girl friend both affirmed that the son's wishes were to be cremated and to have his ashes spread over the places he loved.  The mother contended that her Jewish religious beliefs opposed cremation and that the thought of her son's being cremated caused her to suffer emotional hardship. Arizona statutes provide that the decedent's wishes must be followed "if they are reasonable and do not impose an economic or emotional hardship." The Arizona appellate court concluded:

[T]he probate court did not err in making the factual determination that Mother’s distress arising from her son’s wishes to be cremated did not rise to the level of “emotional hardship” as contemplated by § 36-831.01. We defer to a trial court’s factual findings unless they are clearly erroneous....

Mother testified that her distress stemmed primarily from her professed religious beliefs, the sincerity of which we do not purport to question here. However ... nothing compelled the court to elevate Mother’s religious beliefs above the wishes of her son. Notably, the record reflects that decedent was also religious, and his own spiritual beliefs could have played a role in his decision to be cremated.

AP reports on the decision.

Satanic Temple Can Proceed In Its Attempt To Offer City Council Invocation

In The Satanic Temple, Inc. v. City of Scottsdale, (D AZ, Nov. 18, 2019), an Arizona federal district court refused to dismiss a suit by The Satanic Temple (TST). Scottsdale City Council refused to allow the head of TST to deliver an invocation at a City Council meeting. The court, in finding that plaintiffs had standing to bring the lawsuit reasoned in part:

The injury alleged is discrimination – that Plaintiffs have been denied the opportunity to give an invocation when other religious groups have been allowed that privilege....

Although Establishment Clause violations can be asserted by the irreligious as well as the religious, such as a non-believing school student who is compelled to recite a prayer, Plaintiffs’ religious-discrimination claim necessarily requires that they be a religion....

In arguing that Plaintiffs are not religious, Defendant does not rely on any specific judicial definition. Defendant instead asserts that courts have distinguished between religious and secular prayers in legislative prayer cases....

The evidence discussed above suggests that Plaintiffs view their beliefs as religious and sincerely held. Whether Plaintiffs are religious for purposes of the merits of this case – for purposes of showing that the City’s action in the sphere of legislative prayer amounted to religious discrimination – is an issue for trial.

Citizen Lacks Standing To Challenge City's Annual Menorah Lighting

In Taylor v. City of Flagstaff, (D AZ, Oct. 9, 2019), an Arizona federal district court held that a citizen of Flagstaff, Arizona lacked standing to challenge the constitutionality of the city's annual Grand Menorah Lighting at City Hall.  The court said in part:

Although Plaintiff is a resident of Flagstaff..., Plaintiff did not allege that he has had direct contact with the Grand Menorah Lighting at City Hall, or any other religious ceremony purportedly held in City Hall. According to the Complaint, Plaintiff’s contact with the Grand Menorah Lighting at City Hall has, at most, been via newspaper articles reporting the “Flagstaff Hanukkah tradition.”.... While Plaintiff alleges that he has been “quite concerned” and “very disturbed” by the Grand Menorah Lighting at City Hall, ... —without more, the injury asserted by Plaintiff is too generalized and remote to confer standing....

The court concluded that the same test for standing applies to both plaintiff's Establishment Clause claim and his claim under the no-aid provision of the state constitution.

Arizona Supreme Court Backs Wedding Invitation Artists In Their Free Speech Claim

In Brush & Nib. v. City of Phoenix, (AZ Sup Ct., Sept. 16, 2019), the Arizona Supreme Court in a 4-3 decision held that Phoenix's public accommodation law cannot be applied to force owners of a wedding and event supply business to create custom wedding invitations for same-sex ceremonies when doing so violates their religious beliefs. The several opinions generated span 78 pages.  The majority opinion of Justice Gould, focusing largely on the compelled speech doctrine, said in part:

[Plaintiffs] have the right to refuse to express such messages under article 2, section 6 of the Arizona Constitution, as well as Arizona’s Free Exercise of Religion Act.... Our holding is limited to Plaintiffs’ creation of custom wedding invitations that are materially similar to those contained in the record.... We do not recognize a blanket exemption from the Ordinance for all of Plaintiffs’ business operations. Likewise, we do not, on jurisprudential grounds, reach the issue of whether Plaintiffs’ creation of other wedding products may be exempt from the Ordinance....

 Plaintiffs’ custom wedding invitations, and the creation of those invitations, constitute pure speech entitled to full First Amendment protection....

Here, Plaintiffs’ objection is based on neither a customer’s sexual orientation nor the sexual conduct that defines certain customers as a class. Plaintiffs will make custom artwork for any customers, regardless of their sexual orientation, but will not, regardless of the customer, make custom wedding invitations celebrating a same-sex marriage ceremony. Thus, although Plaintiffs’ refusal may ... primarily impact same sex couples, their decision is protected because it is not based on a customer’s sexual orientation.

Justice Bolick filed a concurring opinion. Three dissenting opinions were filed, one joined by all three dissenters. The primary dissent written by Justice Bales said in part:

Our constitutions and laws do not entitle a business to discriminate among customers based on its owners’ disapproval of certain groups, even if that disapproval is based on sincerely held religious beliefs. In holding otherwise, the majority implausibly characterizes a commercially prepared wedding invitation as “pure speech” on the part of the business selling the product and discounts the compelling public interest in preventing discrimination against disfavored customers by businesses and other public accommodations.

Arizona Republic reports on the decision.

9th Circuit: FLDS Towns Discriminated Against Non-Church Members

In United States v. Town of Colorado City, Arizona, (9th Cir., Aug. 26, 2019), the U.S. 9th Circuit Court of Appeals upheld an injunction issued by an Arizona federal district court, finding that the FLDS-controlled town of Colorado City engaged in a pattern or practice of discriminating against non-members of the Fundamentalist Latter Day Saints.  In affirming a finding that the city violated 34 U.S.C. § 12601, the court concluded that the statute imposes liability on governments for patterns of unconstitutional conduct by their officers and agents.  In the suit, the United States charged that Colorado City (as well Hildale, Utah) "functioned as an arm of the Church and conspired with FLDS leaders to use the Towns’ municipal resources to advance Church interests." AP reports on the decision.

Hung Jury In Trial of Activist For Aiding Aliens

AP reports that a mistrial was declared Tuesday after an Arizona federal court jury was unable to reach a verdict in the prosecution of Scott Warren, a volunteer with the humanitarian group No More Deaths. Warren was charged with concealing and harboring aliens after he offered aid to two migrants near the U.S.-Mexico border. Warren's defenses included a claim that his actions were protected by the Religious Freedom Restoration Act. (See prior posting.) [Thanks to Stephanie Inks for the lead.]

Arizona Supreme Court Hears Oral Arguments Over Refusal To Design Invitations For Same-Sex Wedding

Yesterday the Arizona Supreme Court heard oral arguments in Brush & Nib v. City of Phoenix. (Video of full oral arguments). In the widely-followed case, owners of an art studio that designs wedding products, citing their Christian religious beliefs, refused to create customer-specific merchandise for same-sex weddings. They sued to obtain an injunction against application of Phoenix's public accommodation anti-discrimination law to them. The state appeals court rejected most of plaintiffs' free speech and free exercise arguments. (See prior posting.)  AP reports on the oral arguments.

Hopi Tribe Loses Public Nuisance Challenge To Snowbowl Expansion

In Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership, (AZ Sup. Ct., Nov. 29, 2018), the Arizona Supreme Court in a 5-2 decision, rejected the Hopi Tribe's attempt to invoke public nuisance law to challenge the sale of wastewater to make artificial snow at a ski resort on federal land.  The land has been traditionally used by the Hopi for religious and ceremonial purposes.  Under Arizona law, a private party can challenge a public nuisance only if the party can show special injury different from that suffered by the public at large. In the latest chapter of the Hopi's long-running attempt to challenge the Snowbowl expansion, the majority held that environmental damage to public land with religious, cultural, or emotional significance to the tribe is not enough to create "special injury." The majority said in part:

because a particular place’s religious importance is inherently subjective, ... courts are ill-equipped to determine whether “one form of incidental interference with an individual’s spiritual activities” should be analyzed differently from that of another....

At its core, the special injury requirement serves a gatekeeping function that prevents courts from deciding issues under the guise of public nuisance claims when such issues are best left to public officials, a pivotal principle in federal cases grappling with religious freedom challenges to public land uses.

Chief Justice Bales, joined by Justice Bolick, dissented, saying in part:

[T]he Hopi face the destruction and desecration of some of their most sacred locations and practices. This is the harm that the majority claims is no different than that suffered by the public at large.... But the general public does not have millennia of religious practice in the area that will be covered in a fine film of reclaimed sewage. Nor does the general public have rights of access and use - rooted in Hopi tradition and cultural practices - recognized by federal statutes.

Arizona Republic reports on the decision.