Suit Challenging Anti-Zionist Proposed Curriculum Is Dismissed

In Concerned Jewish Parents and Teachers of Los Angeles v. Liberated Ethnic Studies Model Curriculum Consortium, (CD CA, Nov. 30, 2024), a California federal district court dismissed both for jurisdictional reasons and on the merits a suit by plaintiffs who were Jewish Zionists against a group that developed a set of teaching materials that the group hoped Los Angeles Public Schools would adopt. The court said in part:

According to plaintiffs, the challenged curriculum "denounces capitalism, the nuclear family, and the territorial integrity of the lower 48 states of the United States[,]"... and is designed "to expunge the idea of Zionism, and the legitimacy of the existence of the State of Israel, from the public square[.]"... Plaintiffs allege there is "rank discrimination embedded in the LESMC," ... because the challenged curriculum, among other things, "includes statements that the existence of the State of Israel is based on ethnic cleansing and land theft, apartheid and genocide" and that "Zionism is distinct from Judaism."... Because the challenged curriculum contains anti-Zionist material, plaintiffs allege that the curriculum is antisemitic.,,,

The court held that plaintiffs' claims were not ripe for judicial review and that plaintiffs lacked standing to bring their claims. It went on to also reject plaintiffs' equal protection and free exercise challenges on additional grounds. It held first that the defendants other than the school district were not state actors for purposes of the 14th Amendment. It went on to hold:

... [I]t is clear that the [complaint] is a direct "attack on curricula" — and "absent evidence of unlawful intentional discrimination, parents are not entitled to bring Equal Protection claims challenging curriculum content."... In short, plaintiffs' equal protection claims under both the California and United States constitutions must be dismissed....

In effect, the only hardship plaintiffs allege is that the existence of the challenged curriculum — and its possible adoption — offends them. But mere offense is insufficient to allege a burden on religious exercise....

In short, plaintiffs' claim that the challenged curriculum violates the Free Exercise Clause because it is intended "to suppress public expression of, and public support for, Zionist beliefs and to prevent Zionists from acting on their sincerely held religious belief[,]" ... must be dismissed, as plaintiffs have not adequately alleged a substantial burden on their religious exercise or practice.

The court also rejected claims under Title VI and the California Education Code. It then concluded:

... [I]t must also be noted that significant First Amendment concerns underlie plaintiffs' claims and requested relief.... In effect, plaintiffs seek to litigate the propriety and legality of a potential curriculum with which they disagree. Their claims thus conflict with the First Amendment in several respects, and are largely barred on that basis as well.

Various state law claims were also stricken under California's anti=SLAPP statute.

Noticias Newswire reports on the decision.

Parents Sue California High School Alleging Long History of Tolerating Antisemitism

Suit was filed last week in a California federal district court by parents of six high school students in the Sequoia Union High School District charging the high school with tolerating antisemitism expressed by students and teachers.  The complaint (full text) in Kasle v. Puttin, (ND CA, filed 11/15/2024), alleges in part:

SUHSD has a long history of tolerating casual antisemitism on its campuses.  Students and faculty have openly joked about Nazis and the Holocaust, while certain teachers have peddled antisemitic falsehoods about Middle East history without facing consequences.  District leadership has consistently turned a blind eye to such behavior.  SUHSD’s antisemitism problem worsened significantly after October 7, 2023, when Hamas—a U.S.-designated terrorist organization—invaded southern Israel and then mutilated, raped, and murdered more than 1,200 people.  Although quick to address other global injustices, SUHSD remained conspicuously silent about this historic massacre of Jews, contradicting the District’s professed commitment to equity....

The 64-page complaint alleges violation of Title VI, of the 1st and 14th Amendments as well as of parallel provisions of California law and asks for an injunction in part:

prohibiting Defendants’ discriminatory and harassing treatment of Plaintiffs in violation of Plaintiffs’ constitutional and statutory rights; 

prohibiting the District, its employees, agents, and representatives from engaging in any form of antisemitic behavior or conduct, including, but not limited to, verbal, written, or physical actions that demean, harass, or discriminate against individuals based on their Jewish identity or their identification with and commitment to Israel;

ordering the District to adopt and implement a clear and comprehensive policy specifically addressing antisemitism, as defined by the International Holocaust Remembrance Alliance’s Working Definition of Antisemitism....

It also asks the court to appoint a Special Master to monitor the district's implementation of policies against antisemitism. 

Ropes & Gray issued a press release announcing the filing of the lawsuit. 

Certiorari Denied in Challenge To West Virginia's Ban on Transgender Girls on Girls' Sports Teams

The U.S. Supreme Court yesterday denied review in West Virginia Secondary School Activities Commission v. B. P. J., (Docket No. 24-44, certiorari denied 11/18/2024). (Order List.)  In the case the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that the West Virginia Save Women's Sports Act violates Title IX on the facts of the case before it and remanded for further findings on whether the Act as applied to transgender girls violates the Equal Protection Clause.

UPDATE: The certiorari petition which the Court acted on here only raised the question of whether the Secondary School Activities Commission is a state actor. A cert. petition raising the Title IX and Equal Protection issues is still pending before the Court.

7th Circuit Vacates Injunction Against Indiana's Ban on Gender Transition Treatment for Minors

In K.C. v. Individual Members of the Medical Licensing Board of Indiana, (7th Cir., Nov. 13, 2024), the U.S. 7th Circuit Court of Appeals in a 2-1 decision reversed a federal district court's preliminary injunction against Indiana's ban on non-surgical gender transition procedures for minors. Rejecting the district court's conclusion that the treatment ban violates the Equal Protection Clause, the 7th Circuit majority held that the law need only meet the rational basis test. The court said in part:

The only way SEA 480 implicates sex at all is that the medical treatment at issue is sex specific—it denies each sex access to the other’s hormones. A physician could, if not for SEA 480, prescribe two medical treatments: one exclusively to girls with gender dysphoria—testosterone; and one exclusively to boys with gender dysphoria—estrogen.....

When a state regulates a “medical procedure that only one sex can undergo,” the courts apply rational-basis review “unless the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other.’”...

Bostock does not apply to every use of the word “sex” in American statutory and constitutional law. The case decided an interpretive question about Title VII’s reach. Title VII does not apply here, so neither does Bostock.

The majority also rejected the claim that the Indiana law violates the Due Process right of parents to make medical decisions for their children because it does not carve out an exception for treatment when a parent consents. The majority said in part:

SEA 480 is supported by a rational basis.... [P]rotecting minor children from being subjected to a novel and uncertain medical treatment is a legitimate end. And if Indiana had included a parental-consent provision, the exception would swallow the rule...

Finally the majority rejected the claim that the statute's ban on aiding and abetting violates physicians' free speech rights, saying in part:

... [W]hen the physicians and the state do not see eye-to-eye on treatment—and when the state validly regulates that treatment—the state must be able to preclude its physicians from using their authority to help the state’s citizens access the treatment. Otherwise, the physicians would hold a veto over the state’s power to protect its citizens. SEA 480’s secondary liability provision covers unprotected speech, and it reasonably relates to its primary liability provision, which itself is a reasonable regulation.

Judge Jackson-Akiwumi filed a dissenting opinion focusing primarily on the ban on Indiana physicians assisting minors in obtaining treatment in other states, saying in part:

The majority opinion holds that, insofar as the aiding and abetting provision regulates speech, it reaches only unprotected speech—either speech integral to unlawful conduct or speech incidental to regulated conduct. Our law, however, defies both conclusions....

So, Indiana can realize its objectives by enacting a law and punishing those who violate it; it cannot accomplish its objectives by punishing speech that somehow relates to the purpose of a state law, yet amounts to no criminal or civil primary violation.

ADF issued a press release announcing the decision.

6th Circuit Hears Oral Arguments in Transgender Bathroom Access Case

On Tuesday, the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Doe No. 1 v. Bethel Local Board of Education, (6th Cir., Docket No. 23-3740). In the case, an Ohio federal district court (see prior posting) dismissed a wide-ranging group of challenges-- including due process, equal protection and free exercise challenges-- to a school board policy allowing students to use school bathrooms corresponding to their gender identity. Ohio Capital Journal reports on the oral arguments.

9th Circuit: California IDEA Rules Violate Free Exercise Clause

In Loffman v, California Department of Education, (9th Cir., Oct. 28, 2024), the U.S. 9th Circuit Court of Appeals reversed a California federal district court's dismissal of a suit by the parents of a special needs child that challenges as a violation of the Free Exercise and Equal Protection Clauses a portion of California's rules implementing the federal Individuals With Disabilities Education Act (IDEA). In California, a private school may be certified as a NPS (non-public school offering special education programs) so long as the school is non-sectarian. When a local educational agency refers a child to an NPS, the state pays the child's full tuition there. However, religiously affiliated schools may not be certified as NPS's even if the curriculum offered to special needs children is secular. Here, plaintiffs wanted to send their children to an Orthodox Jewish school but obtain the benefits available from an NPS. The 9th Circuit said in part:

 ... [A]ny religiously affiliated school seeking to enter into an NPS contract in California must choose whether to maintain its religious affiliation or to serve as an NPS eligible for consideration ... in determining whether it may be in the best position to provide an IEP [individualized education program] for an individual child.  

Religious entities that are equally or better qualified than secular ones to provide special education and related services are disqualified solely because they are “owned, operated, controlled by, or formally affiliated with a religious group or sect, whatever might be the actual character of the education program or the primary purpose of the facility.”...

As we have previously recognized, a statutory scheme that requires a family to “forgo a sectarian education . . . in order to receive” special education benefits otherwise available in a private school setting imposes a “burden on their free exercise rights.”  ...

Parent Plaintiffs have plausibly alleged “that a government entity has burdened [their] sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable,’” so the focus “shifts to the defendant” to show that the challenged action survives strict scrutiny....

[E]ven if the State Appellee could demonstrate a compelling interest in neutrality here, it has failed to demonstrate that the nonsectarian requirement is narrowly tailored to serve that interest.  Thus, we conclude that the State Appellee fails to demonstrate that the nonsectarian requirement satisfies strict scrutiny.

National Catholic Register reports on the decision.

Court Enjoins Disciplining of Doctors Performing Certain Abortions in Tennessee

In Blackmon v. State of Tennessee, (TN Chanc. Ct., Oct. 17, 2024), a Tennessee state Chancery Court issued a temporary injunction barring the state from instituting disciplinary proceedings against plaintiff physicians for performing abortions in any of four specified medical situations. The court found that plaintiffs are likely to succeed in their challenges under the right to life, liberty or property and the equal protection clauses of the state constitution and in their vagueness challenge. The court said in part:

The question remains ... whether the Medical Necessity Exception, as currently written, serves a compelling state interest and is narrowly tailored to achieve that goal.  Given the range of interpretations proffered through the expert declarations ..., the Court finds that the issue of which conditions, and the timing of when they present and escalate to life-threatening conditions, constitute medical emergencies within the Medical Necessity Exception is demonstrably unclear, notwithstanding the “reasonable medical judgment’ of the physician standard set forth in the Exception.  This lack of clarity is evidenced by the confusion and lack of consensus within the Tennessee medical community on the circumstances requiring necessary health- and life-saving abortion care.  The evidence presented underscores how serious, difficult, and complex these issues are and raises significant questions as to whether the Medical Necessity Exception is sufficiently narrow to serve a compelling state interest....

Plaintiff Patients, as pregnant women, claim they are similarly situated to non-pregnant women who seek and are in need of emergency medical care.  Yet because of the criminal abortion statute, pregnant women are treated differently than non-pregnant women because their access to emergency medical care is restricted....

While the court enjoined disciplinary proceedings, it held that it lacked jurisdiction to enjoin enforcement of the state's criminal abortion statute. The Hill reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Religious College Sues Georgia Seeking Inclusion in State Grant and Scholarship Programs

Yesterday suit was filed in a Georgia federal district court challenging the constitutionality of excluding Luther Rice College and Seminary from state scholarship and grant programs for students attending private colleges. Georgia law excludes schools or colleges of theology or divinity. The complaint (full text) in Luther Rice College and Seminary v. Riley, (ND GA, filed 10/15/2024), alleges in part:

9. Georgia allows other religious schools—including schools with religious missions that offer religious undergraduate degree programs like Luther Rice—to participate in Georgia student aid programs....

11. If Luther Rice did not have a religious mission, offer religious degree programs, and teach all courses from a Christian worldview, its undergraduate students could receive Georgia student aid.

12. So Luther Rice faces a choice between (a) maintaining its religious mission and degree programs and teaching all courses from a Christian worldview, or (b) giving up that religious character and exercise to participate equally with other schools in the State.

13. Putting the school to that choice is unconstitutional....

Plaintiffs allege that the exclusion violates the free exercise and Establishment Clauses, the equal protection clause and plaintiff's free expression rights. ADF issued a press release announcing the filing of the lawsuit.

U.S. Supreme Court Opens New Term with Cert. Denials; Red Mass Yesterday

The U.S. Supreme Court's new term began today. Yesterday in Washington the annual Red Mass marking the opening of the Supreme Court's new term-- hosted by the D.C. Archdiocese and the John Carroll Society-- was held at the Cathedral of St. Matthew the Apostle. (Video of full Red Mass). According to the Washington Post, Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett were in attendance.

Today, the Supreme Court issued its typical very lengthy first Order List of the Term, denying review in several hundred cases.  Among them were:

Becerra v. State of Texas, (Docket No. 23-1076, certiorari denied 10/7/2024). In the case, the U.S. 5th Circuit Court of Appeals affirmed an injunction issued by a Texas federal district court barring enforcement of a Guidance document on emergency abortion care issued by the Department of Health and Human Services. (See prior posting.) The HHS Guidance to hospitals (and accompanying Letter) stated that the federal Emergency Medical Treatment & Labor Act requires hospital emergency rooms to perform certain abortions, even when they violate Texas law, when an abortion is the stabilizing treatment necessary to resolve an emergency medical condition. AP reports on the denial of review.

Young Israel of Tampa v. Hillsborough Regional Transit, (Docket No. 23-1276, certiorari denied 10/7/2024). In the case, the U.S. 11th Circuit Court of Appeals held unconstitutional a public transit agency's policy on the sale of advertising space on its vehicles and property.  (See prior posting.) The agency prohibited ads that "primarily promote a religious faith or religious organization." Applying this policy, the transit agency rejected an ad from plaintiff promoting a "Chanukah on Ice" event.

Hile v. State of Michigan, (Docket No. 23-1084, certiorari denied 10/7/2024). In the case, the U.S. 6th Circuit Court of Appeals held that an amendment placed in the Michigan Constitution in 1970 that prohibits public funds from being used to aid private or religious schools does not violate the equal protection rights of parents who cannot use Michigan Educational Savings Program to send their children to religious schools. (See prior posting.) The Hill reports on the Supreme Court's action.

Georgia's 6-Week Abortion Ban Declared Unconstitutional

In Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., Sept. 30, 2024), a Georgia state trial court held unconstitutional under the state constitution Georgia's ban on abortions once a fetal heartbeat is detected (usually around 6 weeks). The court said in part:

Before the LIFE Act, Georgia law required a woman to carry to term any fetus that was viable, that had become something that -- or more accurately someone who -- could survive independently of the woman.  That struck the proper balance between the woman’s right of “liberty of privacy” and the fetus’s right to life outside the womb.  Ending the pregnancy at that point would be ending a life that our community collectively can and would otherwise preserve; no one person should have the power to terminate that.  Pre-viability, however, the best intentions and desires of society do not control, as only the pregnant woman can fulfill that role of life support for those many weeks and months.  The question, then, is whether she should now be forced by the State via the LIFE Act to do so?  She should not.  Women are not some piece of collectively owned community property the disposition of which is decided by majority vote.  Forcing a woman to carry an unwanted, not-yet-viable fetus to term violates her constitutional rights to liberty and privacy, even taking into consideration whatever bundle of rights the not-yet-viable fetus may have....

For these women, the liberty of privacy means that they alone should choose whether they serve as human incubators for the five months leading up to viability.  It is not for a legislator, a judge, or a Commander from The Handmaid’s Tale to tell these women what to do with their bodies during this period when the fetus cannot survive outside the womb any more so than society could -- or should -- force them to serve as a human tissue bank or to give up a kidney for the benefit of another...

Anticipating the virtually certain appeal, the court went on to conclude that even if it is mistaken about the constitutionality of the 6-week ban, the exception for physical health emergencies, but not mental health ones, violates the equal protection clause of the Georgia constitution. It also found unconstitutional the provision of the act making health records of women obtaining abortions available to the district attorney. However, it held that if the 6-week ban is constitutional, the conditioning of the rape or incest ban on a police report having been filed is constitutional.  CNN reports on the decision.

9th Circuit: Title IX's Religious Exemption Does Not Violate Establishment Clause

In Hunter v. U.S. Department of Education, (9th Cir., Aug. 30, 2024), the U.S. 9th Circuit Court of Appeals held that the exemption available to religious educational institutions from Title IX's ban on sex discrimination (including sexual orientation and gender identity) does not violate the Establishment Clause or equal protection guaranties. The court said in part:

Any practice that was “accepted by the Framers and has withstood the critical scrutiny of time and political change” does not violate the Establishment Clause....

Given the dearth of historical equivalents, ... tax exemptions are the most analogous case to Title IX’s statutory exemption.... Absent additional historical evidence—and Plaintiffs point us to none here—the history of tax exemptions near the time of the Founding suggests that the statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning.

Having considered the history of religious exemptions at or near the Founding, the history and tradition test requires us to look next to the “uninterrupted practice” of a law in our nation’s traditions....  The Department identifies a relevant tradition in “modern legislative efforts to accommodate religious practice.” ...

... [T]here is no evidence in the record that the exemption here “was drafted with the explicit intention of including particular religious denominations and excluding others.”...

... Here, when a school claims an exemption, the Department must make two determinations—whether the school is controlled by a religious organization and whether Title IX would conflict with the religious tenets of the controlling organization....  The Department has ... “never rejected an educational institution’s assertion that it is controlled by a religious organization” and “never denied a religious exemption when a religious educational institution asserts a religious objection.” ...

The exemption substantially relates to the achievement of limiting government interference with the free exercise of religion....

11th Circuit Denies En Banc Rehearing in Alabama's Ban on Gender-Affirming Treatment of Minors

In August 2023, the U.S. 11th Circuit Court of Appeals vacated a district court's preliminary injunction against Alabama's ban on hormone blockers and cross-sex hormones to treat minors with gender dysphoria, holding that the statute is only subject to rational basis review. (See prior posting.) Now, in Eknes-Tucker v. Governor of the State of Alabama, (11th Cir., Aug. 28, 2024), a majority of the 11th Circuit voted not to grant an en banc rehearing in the case. However, that decision generated a series of concurring and dissenting opinions spanning 173 pages.

Chief Judge William Pryor concurred in the denial but filed an opinion to respond to the dissenting opinion of Judge Jordan. The Chief Judge said in part:

The doctrine of substantive due process does violence to the text of the Constitution, enjoys no historical pedigree, and offers judges little more than shifting and unilluminating standards with which to protect unenumerated rights.... [U]nelected judges with life tenure enjoin enforcement of laws enacted by elected representatives following regular procedures, all in the name of fundamental rights that the Constitution never names but allegedly secures....

Judge Lagoa filed a concurring opinion, saying in part:

The propriety of the medications at issue is a quintessential legislative question, not a constitutional one.  Judges Jordan and Rosenbaum would have this Court end the debate by judicially fencing off these questions from state legislatures.  But our experience with the intersection of the Constitution and these types of issues suggests that this is a misguided effort. See Roe v. Wade.... 

Judge Rosenbaum’s and Judge Wilson’s dissents also disagree with our equal-protection holding, arguing that the Act discriminates based on sex and transgender status....  But the Act applies equally to everyone regardless of their sex or transgender status.  And transgender status is not a classification protected by the Equal Protection Clause.

Judge Wilson, joined by Judge Jordan, filed a dissenting opinion, saying in part:

This case presents numerous questions “of exceptional importance” worthy of en banc review.... Seeing that this case implicates the contours of substantive due process, fundamental rights, and equal protection, it is difficult to envision issues of greater importance.

Judge Jordan, joined by Judges Rosenbaum and Jill Pryor, filed a dissenting opinion, saying in part:

In this case, the panel characterized the liberty interest in part by asking whether there is a history of recorded uses of transitioning medications for transgender individuals (e.g., puberty blockers and cross-sex hormone treatments) as of 1868, when the Fourteenth Amendment was ratified....

The panel’s decision necessarily means that the fundamental right of parents to obtain medical treatment for their children extends only to procedures and medications that existed in 1868, and not to modern advances like the polio vaccine...,, cardiac surgery..., organ transplants..., and treatments for cancer like radiation ... and chemotherapy...

Judge Rosenbaum, joined by Judge Jill Pryor and in part by Judge Jordan, filed a dissenting opinion, saying in part:

... [P]arents’ liberty interest in directing that their child receive well-established, evidence-based, non-experimental medical treatment, subject to medically accepted standards and a physician’s independent examination and medical judgment, is a fundamental right, “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed”....

We ... receive no medical training in law school.  We don’t go through residencies or fellowships.  We don’t engage in medical research.  And we don’t practice medicine at all.  In fact, many of us went into the law because, among other reasons, we weren’t good at math or science.  Given our lack of medical expertise, we have no business overriding either the medical consensus that transitioning medications are safe and efficacious or clinicians’ ability to develop individualized treatment plans that follow the governing standards of care....

... [T]he Act discriminates based on two quasi-suspect classifications: sex and transgender status.  So either classification requires us to apply intermediate scrutiny.  When we do that, the Act cannot survive.  

6th Circuit Reverses Dismissal of Muslim Inmate's Religious Accommodation Complaints

 In Mustin v. Wainwright, (6th Cir., Aug. 27, 2024), the U.S. 6th Circuit Court of Appeals reversed the dismissal of free exercise, RLUIPA, equal protection and certain retaliation claims brought by a Muslim inmate who objected to the manner in which space was made for religious services and objected to inadequate Ramadan meals.  The court said in part:

Mustin contends that defendants ... substantially burdened his ability to attend Jummah and Taleem by (1) “constantly” moving Jummah and Taleem to small rooms that could safely accommodate only half of the attendees, and (2) inconsistently allowing inmates to attend Taleem services and sending inmates back to their cells to accommodate other religious events.... Mustin properly alleged that defendants ... substantially burdened Mustin’s ability to safely attend Jummah and Taleem by forcing him to put his personal safety at risk in order to fulfill his religious obligations by attending services in a room packed with roughly twice the number of people it can safely house....

At this early stage, Mustin has alleged facts sufficient to support an inference that defendants’ provision of expired, offending, and otherwise nutritionally insufficient meals during Ramadan pressured him to violate his religious beliefs or face potential malnutrition.  Mustin alleges that he was served raw food and expired drinks in his breakfast bags, and that his dinner bags often contained pork-based main courses, which Muslims are forbidden from eating.... Mustin plausibly alleged that the non-expired and non-pork-based foods he received during Ramadan were insufficient in quantity and nutrition quality to meet his nutritional needs.

Churches Challenge Constitutionality of Johnson Amendment

The Johnson Amendment which prohibits 501(c)(3) tax-exempt organizations from supporting or opposing political candidates was challenged this week as being unconstitutional as applied to churches. The complaint (full text) in National Religious Broadcasters v. Werfel, (ED TX, filed 8/28/2024) alleges in part:

Churches are placed in a unique and discriminatory status by the IRC. Under § 508(c)(1) of the IRC, churches need not apply to the Internal Revenue Service [“IRS”] to obtain recognition of their 501(c)(3) status. The IRC places them automatically within the ambit of 501(c)(3) and thereby silences their speech, while providing no realistic alternative for operating in any other fashion. Churches have no choice; they are automatically silenced vis-à-vis political candidates.

Hundreds of newspapers are organized under § 501(c)(3), and yet many openly endorse political candidates....

Many 501(c)(3) organizations engage in electoral activities that are open, obvious, and well known, yet the IRS allows some, but not all, such organizations to do so without penalty. Again, Plaintiffs believe that such churches have the constitutional right to engage in such participation; they simply want the same right for themselves. ...

The IRS operates in a manner that disfavors conservative organizations and conservative, religious organizations in its enforcement of § 501(c)(3). This is a denial of both religious freedom and equal protection....

Plaintiffs contend that the Johnson Amendment, as written and as applied by the IRS, violates the First Amendment’s Free Speech Clause, Free Exercise Clause, the Fifth Amendment’s Due Process Clause (Void for Vagueness), the Fifth Amendment’s Due Process Clause (Equal Protection), and the Religious Freedom Restoration Act.

Catholic News Agency reports on the lawsuit.

Ohio Court Rejects Challenge to Ban on Treatment of Minors for Gender Dysphoria

In Moe v. Yost, (OH Com. Pl., Aug. 6, 2024), an Ohio state trial court held that Ohio's ban on surgical or hormonal treatment of minors for gender dysphoria does not violate the equal protection or due process clause of the 14th Amendment, or the Ohio constitution's single subject rule, due course of law clause or its Health Care Freedom Amendment. The court said in part:

25. The State of Ohio has a legitimate government interest in protecting the health and safety of its citizens.  

26. The Court finds that upon weighing the evidence received at trial, the Health Care Ban is rationally related to this interest. It is limited to minors. Moreover, the medical care banned carries with it undeniable risk and permanent outcomes.  Indeed, countries once confident in the administration of gender affirming care to minors are now reversing their position as a result of the significant inconsistencies in results and potential side effects of the care.  Thus, there can be no doubt that the Health Care Ban is neither arbitrary nor unreasonable.

The court thus vacated the temporary restraining order previously entered in the case. 

The ACLU announced that it would file an immediate appeal of the decision.

Religious College Loses RFRA Challenge to SBA's Loan Forgiveness Rules

 In Gordon College v. U.S. Small Business Administration, (D DC, July 18, 2024), the D.C. federal district court dismissed claims by a religious nonprofit college that its rights under RFRA as well as the 1st and 14th Amendments were infringed when it was denied forgiveness of a $7 million loan that it received under the Covid era Paycheck Protection Program. Loan forgiveness was available to qualifying small businesses. Gordon College's loan forgiveness application was denied because it had over 500 employees and thus did not meet the SBA's small-business size standard. Rejecting plaintiff's RFRA claim, the court said in part:

... [P]laintiff fails to identify a “sincere religious belief” that has been infringed by application of the PPP’s 500-employee cap to plaintiff.... Absent here ... is any articulated connection between plaintiff’s asserted need to have more than 500 employees and its exercise of religion.  Plaintiff, for example, does not allege that “any religious group” has “as one of its tenets” the requirement that an associated religious institution have more than 500 employees ... or that it has treated having more than 500 employees to “ris[e] to [any] level of significance in [its] religion.”...

As to plaintiff's Constitutional challenges, the court said in part: 

... [T]he application of the PPP’s 500-employee cap to plaintiff is neutral and generally applicable, thereby triggering rational basis review, rather than strict scrutiny.  Plaintiff has failed to bring a rational-basis challenge by not plausibly alleging that no reasonable set of facts could provide a rational basis for the PPP’s 500-employee cap.  Accordingly, plaintiff’s Free Exercise and Equal Protection claims are dismissed....

Here, plaintiff alleges that “[d]efendants have interfered with the autonomy of [plaintiff] to define its own doctrine, membership, employment, staffing, affiliation, and other internal requirements” by “insisting on certain requirements [sic] for determining staffing and employment.... [P]laintiff has failed ... to explain why the PPP’s 500-employee cap... interfered with any “matters of faith and doctrine.”  Plaintiff’s religious autonomy claim is thus dismissed.

Namibia Court Strikes Down Bans on Male Homosexual Conduct

In Dausab v. Minister of Justice, (NA HC MD, June 21, 2024), a 3-judge panel of the High Court of Namibia held that the common law and statutory provisions that ban "sodomy" and "unnatural sexual offenses" unconstitutionally discriminate against gay men. The court said in part:

What emerges from the definition of sodomy is that the offense clearly and undoubtedly criminalises such sexual conduct between males.... What furthermore emerges is that various forms of sexual conduct, which have been held to constitute an offense, if committed by a male person with another male person are not regarded as criminal, if committed by a male person with a female person....

...[T]he impugned laws differentiate ... between male and female and between gay men and heterosexual men.... [T]he differentiation ... in so far as it criminalises anal sex between men and men but not between men and women, [is] based on one of the enumerated grounds set out in Article 10(2).... [I]n so far as the impugned laws differentiate between heterosexual men and gay men, it is not based on one of the enumerated grounds in Article 10(2)....

We have no qualms with counsel's argument that Article 10 does not make express reference to 'sexual orientation' as a ground of discrimination.... We, however, hold the view that the matter is not as simple as counsel portrays it to be, because the fact that a ground is not listed in Article 10(2) is not a license for the law to discriminate on that ground....

A press release by Human Dignity Trust has further background on the decision. [Thanks to Scott Mange for the lead.]

Florida Restrictions on Gender-Affirming Care Are Unconstitutional

In Doe v. Ladapo, (ND FL, June 11, 2024), a Florida federal district court in a 105-page opinion held unconstitutional many of the provisions in Florida law that ban gender-affirming care for minors and regulate it for adults. The court, analyzing equal protection and substantive due process challenges, said in part:

The elephant in the room should be noted at the outset. Gender identity is real. The record makes this clear….

For some, the denial that transgender identity is real—the opposition to transgender individuals and to their freedom to live their lives—is not different in kind or intensity from the animus that has attended racism and misogyny, less as time has passed but still today. And some transgender opponents invoke religion to support their position, just as some once invoked religion to support their racism or misogyny. Transgender opponents are of course free to hold their beliefs. But they are not free to discriminate against transgender individuals just for being transgender. In time, discrimination against transgender individuals will diminish, just as racism and misogyny have diminished. To paraphrase a civil-rights advocate from an earlier time, the arc of the moral universe is long, but it bends toward justice…..

This record includes overwhelming evidence that the House sponsors and a significant number of other House members were motivated by anti-transgender animus. This is clear from their own animus-based statements and from the failure of other members to call them out…..

Banning gender-affirming care for minors across the board in all circumstances, rather than appropriately regulating such care, is not sufficiently related to the legitimate state interest in safeguarding health.  

The ban on care for minors does not survive intermediate scrutiny….

[T]here are some, including the Governor and quite a few members of the Florida Legislature, who believe transgenderism—and thus gender-affirming care—is morally wrong. Enforcing this moral view is not, however, a legitimate state interest that can sustain this statute, even under rational-basis scrutiny….

[W]hether based on morals, religion, unmoored hatred, or anything else, prohibiting or impeding a person from conforming to the person’s gender identity rather than to the person’s natal sex is not a legitimate state interest…..

In addition to invalidating the ban on care for minors, the court also struck down various unnecessary limits placed on gender affirming care for adults.

The Hill reports on the decision and says that the state will appeal it.

UCLA Students Sue University For Failing to Protect Jewish Students

Three Jewish students at UCLA yesterday filed a civil rights lawsuit in a California federal district court alleging that the University, by tolerating widespread antisemitic behavior, has violated a lengthy list of state and federal statutory and constitutional provisions.  The complaint (full text) alleges in part:

1.  The University of California, Los Angeles ..., has deteriorated into a hotbed of antisemitism. This rampant anti-Jewish environment burst into view on October 8, 2023, the day after Hamas terrorists attacked Israel....

2. In the wake of these horrifying events, UCLA should have taken steps to ensure that its Jewish students were safe and protected from harassment and undeterred in obtaining full access to campus facilities. Instead, UCLA officials routinely turned their backs on Jewish students, aiding and abetting a culture that has allowed calls for the annihilation of the Jewish people, Nazi symbolism, and religious slurs to go unchecked....

4. Starting on April 25, 2024, and continuing until May 2, 2024, UCLA allowed a group of activists to set up barricades in the center of campus and establish an encampment that blocked access to critical educational infrastructure on campus....

6. With the knowledge and acquiescence of UCLA officials, the activists enforced what was effectively a “Jew Exclusion Zone,” segregating Jewish students and preventing them from accessing the heart of campus, including classroom buildings and the main undergraduate library....

11. Yet even as the activists continued to enforce the Jew Exclusion Zone, Defendants not only failed to marshal resources to intervene— they adopted a policy facilitating the Jew Exclusion Zone.....

19. The administration’s cowardly abdication of its duty to ensure unfettered access to UCLA’s educational opportunities and to protect the Jewish community is not only immoral—it is illegal.  

20. Specifically, it violates numerous federal and state constitutional guarantees, including the Equal Protection Clause, the Free Exercise Clause, and the freedom of speech.  

21. And it contravenes the basic guarantee of equal access to educational facilities that receive federal funding, as well as numerous other statutory guarantees of equality and fair treatment.

Fox 11 reports on the lawsuit. Becket Fund issued a press release announcing the filing of the suit.

 

Longer Bus Routes for Parochial School Students Upheld

In Swiech v. Board of Education of the Sylvania City School District, (OH Com. Pl., March 19, 2024), an Ohio trial court dismissed a suit brought by parents of students attending a Catholic school. Plaintiffs complained that bus transportation furnished by the District to and from non-public schools involved much longer transportation times than bus service for public school students. While public school students were taken directly to school, non-public students were taken to a central transfer point and then transferred to other busses to get to their schools.  Among the court's holdings was that no Equal Protection violation was involved because the District only needed a rational basis for the differential treatment. Conservation of limited financial resources meets that test.  The court also rejected plaintiffs' Free Exercise challenge

Plaintiffs have offered no evidence of any coercive effects on their religious practice: there is no evidence that the transportation plan has compelled Plaintiffs to do anything forbidden by their religion or that it has caused them to refrain from doing something required by their religion. Plaintiffs have also not offered any evidence that the transportation plan has compelled them to affirm or disavow a belief forbidden or required by their religion.