Mayor's Statements About Prayer Event Sponsors May Have Violated Establishment Clause

Johnson v. City of Seattle, (WD WA, Feb. 18, 2026), is a suit by promoters of a worship event held in a Seattle park. According to the court:

Plaintiffs allege that ... a large group of protestors came to the park to agitate, disrupt, and assault Plaintiffs for the views, message, and content of their event....  [S]hortly after the event had begun, event organizers were approached by the police and told to shut down the event because of violent protestors that the police could not control....  Two protestors attacked the event’s stage, ripped down the fabric banners and kicked over equipment, and other protestors exposed body parts, engaged in lewd behavior in front of minor children, threw urine-filled water balloons, sprayed attendees with pepper spray and tear gas, and harassed Plaintiffs with curse words and violent threats....

On the same day, Mayor Harrell issued a press release stating that Plaintiffs’ event was an “Extreme Right-Wing Rally”, and that Plaintiffs were responsible for the violence that had been perpetrated against them.... Plaintiffs allege that they were blamed for deliberately provoking the reaction “by promoting beliefs that are inherently opposed to our city’s values, in the heart of Seattle’s most prominent LGBTQ+ neighborhood.”.... Mayor Harrell issued another press release ... which contained statements from the City’s “Christian and Faith Leaders” condemning Plaintiffs for their event and blaming them for the violence perpetrated against them.... According to the City’s faith leaders, Plaintiffs targeted the LGBTQ+ community....

The court refused to grant plaintiffs a preliminary injunction, saying in part:

Here, the dearth of allegations of intended future conduct, threat of future enforcement, or self-censorship, clearly does not satisfy a pre-enforcement injury in fact.

However, the court allowed plaintiffs to continue their lawsuit seeking other relief, including their Establishment Clause claim which defendants had asked the court to dismiss. The court said in part:

... Plaintiffs ... argue that the statements made by Defendant Harrell after the event was shut down are laden with hostility toward religion, and the condemning statements made by other religious sects and cited in the second press release demonstrates Defendants’ preference for other religions.... These statements were made in formal press releases from the “Office of the Mayor.”... Official expressions of hostility directly connected to Plaintiffs and their event, combined with the supporting hostile statements made by City religious leaders that are officially approved by the City, can have the effect of showing that the City is failing its duty of neutrality, invalidating the facial neutrality of an ordinance....

New ICE Policy Allowing Enforcement Operations at Churches Violates RFRA

 In New England Synod, Evangelical Lutheran Church in America v. Department of Homeland Security, (D MA, Feb. 13, 2026), a Massachusetts federal district court issued a preliminary injunction barring immigration officials from enforcing a new policy on enforcement operations at churches. The new policy allows ICE agents to conduct arrests, searches, or interrogations in or near churches and other houses of worship at the agents' own discretion. It replaces a 2021 Policy that allowed enforcement actions near churches only in exigent circumstances or with prior approval from Agency headquarters. The court concluded that the new policy violates the Religious Freedom Restoration Act.

The court first concluded that some, but not all, of the 11 Christian church organizations that brought suit have standing because only they demonstrated injuries of decreased attendance at worship services or at social ministries or financial consequences. In deciding to issue a preliminary injunction, the court said in part:

The prospect that a street-level law-enforcement agent—acting without a judicial warrant and with little or no supervisory control—could conduct a raid during a church service, or lie in wait to interrogate or seize congregants as they seek to enter a church, is profoundly troubling.  Indeed, according to the new policy, agents could conduct a raid, with weapons drawn, at any type of church proceeding—including a regular Sunday service, a wedding, a baptism, a christening, or a funeral—subject only to the exercise of their “discretion” and “common sense.”   

It hardly requires mentioning that freedom of religion is both a core American value and a basic liberty protected by the First Amendment and laws of the United States.  That freedom encompasses not merely the freedom to believe, but the freedom to worship, including the freedom to attend church and to participate in sacraments, rituals, and ceremonies.  If government interference with those freedoms is ever justifiable, it is only in relatively extreme circumstances, such as an immediate threat to public safety.  The routine enforcement of the immigration laws does not involve such a threat, and cannot justify the harm to religious freedom posed by the new policy.   

It is of course true that the presence of millions of illegal immigrants within the borders of the United States justifies a substantial government response.  But the need to address that problem cannot override the fundamental liberties on which our nation was founded....

In one important respect, the preliminary injunction is broader than the 2021 Policy.... The preliminary injunction issued by the Court will permit such operations only in exigent circumstances, regardless of supervisory approval.  The Court can conceive of no circumstance, outside of a true emergency, in which a law-enforcement operation to enforce the immigration laws inside a church would be justifiable under the First Amendment and RFRA. 

The preliminary injunction is also narrower than the 2021 Policy, in that it applies only to the plaintiffs in this case who have standing, and not nationwide....  The preliminary injunction will also, as noted, exempt immigration-enforcement actions taken pursuant to an administrative warrant or judicial warrant.

Democracy Forward issued a press release announcing the decision and linking to the original complaint filed in the case.

Court Orders Access for Clergy to ICE Facility on Ash Wednesday

In Coalition for Spiritual and Public Leadership v. Noem, (ND IL, Feb. 12, 2026), an Illinois federal district court issued a preliminary injunction requiring federal immigration authorities to allow plaintiffs, Catholic clergy, access on Ash Wednesday (Feb. 18) to the ICE facility in Broadview, Illinois. The court agreed that denial of access likely substantially burdens plaintiffs' religious exercise in violation of the Religious Freedom Restoration Act. The court said in part:

Plaintiffs argue that prayer and ministry to the migrants and detainees at Broadview is an important religious practice.  Defendants concede that “ministering to vulnerable Catholic immigrants is part of [plaintiffs’] religious exercise,” but argue that doing so at Broadview “is itself not essential to the practice.”  RFRA requires a court to analyze if a government practice substantially burdens a person’s exercise of religion, not whether the religious practice burdened is “essential.”

The Hill reports on the decision.

Florida Church Seeks Stay of Trial Court's Injunction Barring Use of Its Strip Mall Unit for Religious Services

Yesterday, a Florida church filed an emergency motion with a Florida state trial court asking it to stay a temporary injunction that it issued on January 23 while the church files an appeal. The emergency motion and the memorandum in support of it in Flagler Square-JAX, Inc. v. Palmer, (FL Cir. Ct., filed 1/26/2026) (full text) says in part:

The Order constitutes a prior restraint in speech, assembly, and religious exercise, prohibiting Defendant and Coastal Family Church from holding religious services. The Order has already prevented Defendant form hosting in-person religious services on Sunday, January 25, 2026. Each additional Sunday that passes inflicts continuing irreparable harm upon Defendant, the Church, and its congregants.

An October press release from Liberty Counsel provides background:

In July 2025, Pastor Roderick Palmer purchased a unit in the Flagler Square strip mall to serve as the home for Coastal Family Church. However, after the church began holding services, Flagler Square – JAX, Inc, the condominium association that oversees the mall’s four units, sued Pastor Palmer for holding “public assemblies” that allegedly violate a “condominium declaration” which prohibits such assemblies. In the complaint, the association claims the church’s services “would overwhelm available parking at all times” despite Sunday services leaving more than 160 parking spots available....

A January 26 Liberty Counsel press release summarizes the Church's arguments on appeal.

3rd Circuit Hears Arguments in Yeshiva's Zoning Dispute

Last Thursday, the U.S. Third Circuit Court of Appeals heard oral arguments (audio and transcript of full oral arguments) in Anash, Inc. v. Borough of Kingston, (3d Cir., argued 1/22/2026). In the case, a Pennsylvania federal district court refused to grant a preliminary injunction to an Orthodox Jewish Yeshiva whose property was condemned.  The Borough of Kingston contended that the property was being used for a school and dormitory in violation of zoning ordinances. The district court concluded that plaintiff was not suffering irreparable harm, and that it was not likely that plaintiff would succeed on the merits of its challenge to the relevant zoning ordinance. (See prior posting.)  On appeal, the Yeshiva claimed violations of RLUIPA and of the due process clause.

Supreme Court: Trump Administration Rules on Passport Gender Markers Can Go into Effect While Appeals Move Forward

In Trump v. Orr, (Sup. Ct., Nov. 6, 2025), the U.S. Supreme Court by a 6-3 vote granted an emergency stay of a preliminary injunction that had been entered by a Massachusetts federal district court.  The district court had enjoined, pending appeal, enforcement of the Trump Administration's policy of requiring U.S. passports to display the sex assigned to the passport holder at birth rather than the sex marker that matches their current gender identity. The challenged policy was put in place in compliance with a 2025 Executive Order on ... "Restoring Biological Truth to the Federal Government."   In staying the injunction, the Supreme Court's majority said in part:

Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment. And on this record, respondents have failed to establish that the Government’s choice to display biological sex “lack[s] any purpose other than a bare . . . desire to harm a politically unpopular group.”

Justice Jackson, joined by Justices Sotomayor and Kagan filed a dissenting opinion, saying in part:

What the Government needs (and what it does not have) is an explanation for why it faces harm unless the President’s chosen policy is implemented now....

 ... [The government] provides no evidence of harmful confusion or other problems caused by transgender Americans who are using passports with sex markers corresponding to their current gender identity.  To the contrary, as the plaintiffs’ experiences demonstrate, it is gender-incongruent passports that cause confusion and fail to provide a meaningful basis for identification.

 As for the Government’s suggestion that the President is harmed by not being able to impose a uniform definition of sex across various regulatory schemes, that assertion is just another species of the far-fetched contention that the President must be injured whenever he is prevented from doing as he wishes....

Politico reports on the decision.

Texas AG Tells School Districts That Were Not Enjoined to Comply with Statute Ordering Posting of 10 Commandments In Classrooms

As previously reported, on August 20 a Texas federal district court issued a preliminary injunction barring 11 Texas school districts from complying with Texas SB 10 that requires posting of a particular version of the Ten Commandments in every classroom. Yesterday, Texas Attorney General Ken Paxton in a press release (full text) directed the school districts that were not defendants in the litigation to comply with SB 10. He said in part:

From the beginning, the Ten Commandments have been irrevocably intertwined with America’s legal, moral, and historical heritage. Schools not enjoined by ongoing litigation must abide by S.B. 10 and display the Ten Commandments. The woke radicals seeking to erase our nation’s history will be defeated. I will not back down from defending the virtues and values that built this country.

As reported by the Houston Chronicle, there is some confusion as to whether the Attorney General's instructions to comply include two major school districts-- Houston and Austin. On Aug. 19, the Austin District was dismissed as a defendant on the condition that it would be bound by any injunction issued in the case against the remaining defendants. (Full text of Order.) The Houston District, on its motion, was excused from participating in the hearing on the preliminary injunction. In a version of the Attorney General's press release posted on X and on Facebook, neither Austin nor Houston was listed among the districts that Paxton said were excused from complying with SB 10. However, in the version posted on the Attorney General's website, both Austin and Houston were listed as districts affected by the injunction and thus excused from compliance.

The Attorney General's instructions follow an Aug. 21 letter (full text) from the ACLU, Americans United and FFRF sent to superintendents in Texas districts that were not defendants in the lawsuit, saying in part:

Even though your district is not a party to the ongoing lawsuit, all school districts have an independent obligation to respect students’ and families’ constitutional rights. Because the U.S. Constitution supersedes state law, public-school officials may not comply with S.B. 10. 

The organizations threaten possible litigation against districts that comply with S.B. 10.

California May Proceed With False Advertising Charges Against Abortion Pill Reversal Promoters

In Culture of Life Family Services, Inc. v. Bonta, (SD CA, June 13, 2025), a California federal district court refused to enter a preliminary injunction to prevent California's attorney general from moving ahead with an enforcement action against a Catholic community health clinic that promoted "abortion pill reversal". California claimed that the clinic violated Unfair Commpetition and False Advertising laws. The clinic contended its promotion of abortion pill reversal is speech protected by the First Amendment. The court said in part:

The Court has already found that the challenged laws are not content-based and do not warrant application of a strict scrutiny standard.... But as content-neutral regulations, they are generally subject to heightened scrutiny: the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open....

The court concluded that the clinic was engaged in commercial speech and that, "it would be at the very least potentially misleading to state that supplemental progesterone can “reverse” an abortion." It went on to conclude that a number of other staements that the clinic made regarding abortion pill reversal are, or are potentially, false and misleading. The court went on to say in part:

Although this regulation involves reproductive rights, AG Bonta is not aiming to limit the actual practice of APR. And reproductive choices are not apart from consumer choices: women, in exercising their reproductive rights, are also consumers who must be given the correct information to make knowledgeable decisions for themselves....

In sum, Plaintiff cannot carry its burden of showing likelihood of success. Commercial speech that is inherently false or misleading does not receive First Amendment protection. For potentially misleading speech, the AG has more than carried his burden under Central Hudson.

Missouri Supreme Court Orders Re-evaluation of Injunction Barring Enforcement of Abortion Clinic Licensing

In State ex rel. Kehoe v. Zhang, (MO Sup. Ct., May 27, 2025) the Missouri Supreme Court held that a state trial court judge who enjoined enforcement of licensing requirements imposed on abortion clinics applied the wrong standard in determining whether preliminary injunctions should be granted. The Court ordered the trial court judge to vacate her orders granting preliminary relief and re-evaluate the requests under the new stricter standard two abortion clinics' requests for preliminary injunctions. St. Louis Public Radio reports on the Court's decision.

Supreme Court Allows Ban on Transgender Individuals Serving in Military to Remain in Effect While Appeals Move Forward

In United States v. Shilling, (Sup. Ct., May 6, 2025), the U.S. Supreme Court by a vote of 6-3 granted a stay while appeals to the 9th Circuit and the Supreme Court move forward of a preliminary injunction that, had it remained in effect, would have disqualified transgender individuals from serving in the military.  The Supreme Court's one-paragraph order stays the preliminary injunction granted in Shilling v. United States, (WD WA, March 27, 2025). The district court in granting the injunction had said:

The government’s unrelenting reliance on deference to military judgment is unjustified in the absence of any evidence supporting “the military’s” new judgment reflected in the Military Ban—in its equally considered and unquestionable judgment, that very same military had only the week before permitted active-duty plaintiffs (and some thousands of others) to serve openly. Any evidence that such service over the past four years harmed any of the military’s inarguably critical aims would be front and center. But there is none.

In its Application for a Stay of the Injunction, the military had argued in part:

Absent a stay, the district court’s universal injunction will remain in place for the duration of further review in the Ninth Circuit and in this Court—a period far too long for the military to be forced to maintain a policy that it has determined, in its professional judgment, to be contrary to military readiness and the Nation’s interests.

NBC News reports on the Supreme Court's order.

EEOC Enjoined from Enforcing Pregnant Workers Fairness Act Against Christian Nonprofit Organization

In Stanley M. Herzog Foundation v. EEOC, (W.D. Mo. Oct 04, 2024), a Missouri federal district court issued a preliminary injunction barring the EEOC from enforcing the Pregnant Workers Fairness Act and rules implementing it against plaintiff, a nonprofit Christian educational organization, where enforcement would require plaintiff to accommodate abortions that are contrary to its sincere religious beliefs. The court said in part:

... [T]he EEOC has not established that it used the least restrictive means to advance its interests at this stage. The Final Rule’s approach requires employers to provide accommodations for employees who obtain abortions and permits a religious employer to assert a religious defense only after an employee brings a complaint against it for refusing to provide accommodations. There is no way for a religious employer to ensure it will not face investigation or prosecution ahead of time. The Foundation suggests a number of alternatives the EEOC could have taken, which are less restrictive of its free exercise rights....  The EEOC argues these alternatives are not feasible because the PWFA does not give it authority to predetermine religious exemptions or defenses. Ultimately, the burden is on the EEOC to “prove with evidence” that its policies are the least restrictive means “to achieve its compelling interest, including alternative forms of regulation.”

... [T]he Foundation is likely to succeed on the merits of its RFRA claim.....

The Heartlander reports on the decision.

DOJ Dismisses Suit Claiming Idaho's Abortion Restrictions Conflict With EMTALA

On Wednesday, both parties filed a Stipulation of Dismissal (full text) in United States v. State of Idaho, (D ID, filed 3/5/2025). According to the Stipulation, filing of this with the federal district court in which the suit was brought automatically dissolves the preliminary injunction which the court issued in August 2022.  In the case, the district court had enjoined the state of Idaho from enforcing its nearly total abortion ban to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act.  The case then worked its way to the U.S. Supreme Court which initially granted review and then instead returned the case to the 9th Circuit, finding that certiorari had been improvidently granted. (See prior posting.)  Most recently, the parties argued the case before the 9th Circuit. Idaho's Attorney General Raúl Labrador announced this week's dismissal of the case, saying in part that: "It has been our position from the beginning that there is no conflict between EMTALA and Idaho’s Defense of Life Act." Liberty Counsel issued a press release discussing these developments and pointing out:

Idaho’s abortion law continues to face a separate legal challenge. In January 2025, St. Luke’s Hospital System in Idaho brought a nearly identical lawsuit as to Biden’s claiming the state’s abortion ban prevents women from getting abortions as part of emergency medical care. In St. Luke’s Health System v. Labrador, U.S. District Judge B. Lynn Winmill, who had previously levied the injunction in Biden’s lawsuit, issued a temporary restraining order against Idaho’s attorney general’s office blocking it from enforcing the “Defense of Life Act” pending the results of a later proceedings.

Utah RFRA Protects Psilocybin-Using Religious Sect

In Jensen v. Utah County, (D UT, Feb. 20, 2025), a Utah federal district court issued a preliminary injunction under Utah's Religious Freedom Restoration Act barring law enforcement personnel from interfering with the sincere religious use of psilocybin by members of a new religious group known as Singularism. The court also ordered return of items that had been seized from the group. The court said in part:

Plaintiffs seek a preliminary injunction barring enforcement of the Utah Controlled Substances Act as applied to their psilocybin ceremonies....

Based on the evidence in this case, Plaintiffs have established that the government has substantially burdened their sincere religious exercise. Simply put, Plaintiffs offer a sacramental psilocybin tea to their voyagers, who then embark on a spiritual journey by which they write their own scripture. A law that categorically prohibits the possession and use of the psilocybin sacrament—thereby preventing Singularism’s adherents from pursuing their spiritual voyages and hindering them from producing their sacred scripture—substantially burdens the free exercise of Singularism and its adherents....

Defendants observe that Singularism “does not claim special access to divine truths,” instead encouraging its practitioners to more deeply “discover and define their own beliefs,” and explicitly states that “no organization, including [it], has all the answers to life’s most difficult questions.” In Defendants’ view, these features weaken Singularism’s claim to be a religion because they show that Singularism’s beliefs are not comprehensive....  As the court sees it, however, these features less so detract from Singularism’s religious nature than they illustrate Singularism’s commitment to existential humility...

From all the evidence in the record, the court is hard-pressed to find, as Defendants urge, that Singularism is essentially a drug-dealing business cloaked in a minister’s robe. To the contrary, the court is convinced that Singularism is a legitimate religion and that Plaintiffs are sincere practitioners of it. This is not a case where a group of people claim a religious right to do little more than use and distribute large quantities of drugs.... By establishing the sincerity of their religious beliefs, Plaintiffs have fulfilled their responsibility of establishing a prima facie case under the Utah RFRA, shifting the burden to the government to demonstrate that the Utah Controlled Substances Act accomplishes a compelling state interest using the least restrictive means....

Whatever legal regime a society chooses, however, it must apply its protections equally to unpopular or unfamiliar religious groups as to popular or familiar ones if that commitment to religious liberty is to mean anything. As sang Jonas Gwangwa, a South African jazz musician who was exiled by the apartheid government, “Freedom for some is freedom for none.” Indeed, the very founding of the State of Utah reflects the lived experience of that truth by members of the Church of Jesus Christ of Latter-day Saints. Perhaps it is ironic then that not long after enacting its RFRA to provide special protections for religious exercise, the State of Utah should so vigorously deploy its resources, particularly the coercive power of its criminal-justice system, to harass and shut down a new religion it finds offensive practically without any evidence that that religion’s practices have imposed any harms on its own practitioners or anyone else. 

DC Circuit Revives Contempt Proceedings in RFRA Suit Against Fire Department

In Calvert v. Potter, (DC Cir., Jan. 28, 2025), the U.S. Court of Appeals for the D.C. Circuit remanded to the district court a suit by a group of D.C. firefighters who claim that the D.C. Fire Department violated an injunction issued in 2007 vindicating their rights under the Religious Freedom Restoration Act. The injunction required the Department to allow firefighters who wore beards for religious reasons to work in field operations. However, 13 years later the situation became more complex, as the D.C. Circuit explained:

As COVID-19 spread in March 2020, the Department implemented a new facial hair policy and mandated the use of masks during patient contact. The Department transferred the four bearded firefighters it still employed to administrative roles “due to concerns about their ability to properly wear N95 respirators with facial hair.”...

The district court denied the motion for civil contempt.... The court declined to hold the Department in contempt because it “acted in a reasonably cautious way, under unprecedented and extraordinary circumstances, to keep plaintiffs and the public it served as safe as it could.”...

The Court of Appeals rejected the district court's conclusion: 

Good-faith compliance may be relevant to mitigation at the remedies stage, but the court lacks discretion to excuse civil contempt based on the contemnor’s good faith. ... 

The firefighters had a private right to enforcement of the original injunction, which protected their religious freedom and permanently forbade the Department from enforcing the 2005 facial hair policy against them. The district court had no general discretion to excuse civil contempt.... 

Instead, the court was required to determine whether the Department violated the firefighters’ rights under the 2007 injunction.... Even if the Department’s behavior was reasonable in light of the pandemic, good faith and lack of willfulness is not a defense to civil contempt....

First Liberty Institute issued a press release announcing the decision.

Yeshiva Denied Preliminary Injunction Against Zoning Enforcement

In Anash, Inc., d/b/a Wyoming Valley Yeshiva v. Borough of Kingston, (MD PA, Dec. 19, 2024), a Pennsylvania federal district court refused to grant a preliminary injunction to an Orthodox Jewish Yeshiva whose property was condemned because it was being used for a school and dormitory in violation of zoning ordinances. The court concluded that plaintiff was not suffering irreparable harm, and that it was not likely that plaintiff would succeed on the merits of its challenge to the relevant zoning ordinance. The court said in part:

Plaintiffs also provide no support for their assertion that Rabbi Hellinger’s inability to access the Properties impairs his religious freedom, ability to act as a religious leader to others, or others’ freedoms. Defendants are not refusing to allow Rabbi Hellinger to practice his religion in any manner or gather with members of his congregation in any location other than the Properties.... Plaintiffs concede that they have been able to secure temporary alternative locations to gather to study Torah and engage in religious activities.... While Plaintiffs testified that the temporary or alternative locations do not allow for the same level of participation or consistency, the Court does not find that such imperfections show “irreparable harm.”...

Importantly, Plaintiffs have refused to engage in any sort of efforts to compromise or come to a resolution with the Borough....

The parties agree that the seminal issue for Plaintiffs’ religious discrimination claims, asserted under RLUIPA, the First Amendment, and the Equal Protection Clause, all require this Court to determine if Plaintiffs can show evidence that the Zoning Ordinance restricts their freedom of religion in some way, that Defendants’ actions were somehow motivated by animus, or that Plaintiffs were treated differently than similarly situated individuals based upon their religion.... Plaintiffs have not established any of these scenarios....

Plaintiffs can and have practiced their religion in alternative locations and may, but have not, apply for a variance to use the Properties as a school, dormitory, or house of worship.... There is no convincing evidence that Plaintiffs’ freedom of religion is legitimately burdened. Further, even if they had shown such evidence, the Zoning Ordinance is the least restrictive manner of furthering a compelling government regulatory interest in health and safety,... 

Indiana Supreme Court Lets Preliminary Injunction Against Abortion Ban When It Violates Religious Beliefs Stand

Last week, the Indiana Supreme Court, by a vote of 3-2, refused to review at this stage in the litigation a preliminary injunction entered by lower courts in a suit claiming that the state's Religious Freedom Restoration Act is violated when plaintiffs are prohibited by Indiana's abortion law from obtaining an abortion that their religious beliefs direct them to obtain. (See prior posting.) In Individual Members of the Medical Licensing Board of Indiana v. Anonymous Plaintiff 1, (IN Sup. Ct., Dec. 10, 2024), the Order denying the petition to transfer the case to the Supreme Court was not accompanied by a majority opinion. However, Justice Molter joined by Justice Rush filed a concurring opinion saying in part:

This case involves an unusual preliminary injunction—the trial court temporarily enjoined state officials from enforcing the State’s abortion law, but only for a particular group of women who are not pregnant and therefore are not seeking an abortion. The Court of Appeals concluded that the trial court didn’t exceed its discretion by entering a preliminary injunction while the case continues to be litigated. But the panel also directed the trial court to narrow the preliminary injunction on remand. So thus far, this case is not stopping the defendants from doing anything. And we don’t yet know if it ever will, including because the defendants may ultimately prevail in the lawsuit....

I conclude the more prudent course is for the Court to review the case after a final judgment rather than following a preliminary injunction, which remains a work in progress and subject to more deferential appellate review. In essence, it is better that we review the trial court’s final answer rather than its first guess....

Justice Slaughter, joined by Justice Massa, filed a dissenting opinion, saying in part:

Our denial of transfer means the trial court’s “final answer” will lack the benefit of our current thinking. By saying nothing, we may leave the misimpression that the injunction’s only vulnerability is its scope. As my colleagues acknowledge, this case “presents transfer-worthy issues with previously undecided questions of statewide importance”.

Indiana ACLU issued a press release announcing the decision.

Montana Supreme Court Upholds Preliminary Injunction Against Ban on Gender Affirming Care for Minors

In Cross v. State of Montana, (MT Sup. Ct., Dec. 11, 2024), the Montana Supreme Court upheld a trial court's preliminary injunction against enforcement of Montana's ban on medical or surgical treatment of minors for gender dysphoria.  The court said in part:

 ¶37 The statute’s impact on individual privacy rights triggers strict scrutiny review, which requires the State to demonstrate that “the legislation [is] justified by a compelling state interest and [is] narrowly tailored to effectuate only that compelling interest.” ...  Though the State has a compelling interest in “safeguarding the physical and psychological wellbeing of a minor,” a statute implicating their privacy rights must be narrowly tailored to serve that interest....  SB 99 affords no room for decision-making by a patient in consultation with their doctors and parents.  The statute is a complete ban, prohibiting individualized care tailored to the needs of each patient based on the exercise of professional medical judgment and informed consent.  

¶38 At this stage of the proceedings, the District Court conscientiously weighed the parties’ evidence.... Our role is not to reweigh conflicting evidence or to question a district court’s assessment of the strength of the evidence on a preliminary injunction appeal....

Justice McKinnon, joined by Justice Gustafson, filed a concurring opinion, saying in part:

I write separately because I believe Plaintiffs’ equal protection claim should likewise be addressed by the Court.

Justice Rice dissented in part, saying in part:

¶68 I concur with the Court’s holding affirming the District Court’s entry of a preliminary injunction enjoining SB 99’s medical restrictions.  A legislative prohibition of an approved medical procedure must satisfy the high bar of being narrowly tailored to serve a compelling state interest in addressing a bona fide health risk....

 ¶69 However, it should also be noted that both the medical and legal grounds regarding the subject treatment of minors addressed by SB 99 are moving under our feet, and the status quo itself is becoming a moving target, even as this litigation continues....

¶70 I would reverse the District Court’s enjoinder of the funding prohibition of SB 99...

Daily Montanan reports on the decision.

9th Circuit Narrows Preliminary Injunction Against Idaho's Abortion Trafficking Law

 In a 2-1 decision in Matsumoto v. Labrador, (9th Cir., Dec. 2, 2024) the U.S. 9th Circuit Court of Appeals significantly narrowed an Idaho federal district court's preliminary injunction against enforcement of the state's ban on assisting a minor in various ways to obtain an abortion without her parent's consent. The majority concluded that plaintiffs were likely to succeed only in their challenge to one part of the law.

 Idaho Code §18-623 provides:

An adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion ... or obtains an abortion-inducing drug for the pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking.

The majority held that the statute is not void for vagueness, nor does it burden the right of expressive association. It concluded, however, that the statute's ban on "recruiting" is an unconstitutionally overbroad regulation of protected speech. The court said in part:

 ... “[R]ecruiting” has broad contours that overlap extensively with the First Amendment. It sweeps in a large swath of expressive activities—from encouragement, counseling, and emotional support; to education about available medical services and reproductive health care; to public advocacy promoting abortion care and abortion access. It is not difficult to conclude from these examples that the statute encompasses, and may realistically be applied to, a substantial amount of protected speech....

In our view, the “recruiting” prong of Section 18-623 is neither integral nor indispensable to the operation of the statute as the Idaho legislature intended and therefore may be severed from the rest of the law. Without the “recruiting” prong, the statute criminalizes “harboring or transporting” a minor to “procure an abortion” “with the intent to conceal [the abortion] from the parents or guardian” of the minor— an intelligible crime that reaches the problems the legislature sought to rectify.

Judge Bea dissented in part. He argued that plaintiffs lack standing and therefore the district court should dismiss the suit. Idaho Capital Sun reports on the decision.

Texas AG Sues Church-Run Homeless Center Alleging It Has Become a Public Nuisance

Texas Attorney General Ken Paxton this week filed a lawsuit in state court against a church-run homeless center that receives over $1 million in funding from the city of Austin. The complaint (full text) in State of Texas v. Sunrise Community Church, Inc. d/b/a Sunrise Homeless Navigation Center, (TX Dist. Ct., filed 11/26/2024), alleges that the homeless shelter's operations constitute a statutory common nuisance and a common law public nuisance. The complaint says in part:

In South Austin, a once peaceful neighborhood has been transformed by homeless drug addicts, convicted criminals, and registered sex offenders. These people do drugs in sight of children, publicly fornicate next to an elementary school, menace residents with machetes, urinate and defecate on public grounds, and generally terrorize the surrounding community....

The state asks for injunctions closing the homeless center for one year.  It also asks that the center be prohibited from operating within 1,000 feet of any school playground or youth center and from operating in any location "in a manner that frequently attracts patrons whose conduct violates the rights of neighborhood residents, school children, businesses, and the general public to peacefully use and enjoy the surrounding area."

Attorney General Paxton issued a press release announcing the filing of the lawsuit. Austin American- Statesman reports on the lawsuit.

PA Supreme Court: Yard Signs Responding to Neighbors' Antisemitism Protected by Pennsylvania Constitution

In a 4-2 decision in Oberholzer v. Galapo, (PA Sup. Ct., Aug. 20, 2024), the Pennsylvania Supreme Court, relying on the broad free speech protections in Art. I, Sec. 7 of the Pennsylvania Constitution, dissolved an injunction issued by a trial court in an unusual dispute between neighbors. As described by Justice Dougherty's majority opinion:

In November 2014, a brewing feud between the neighbors over landscaping issues reached a boiling point after Dr. Galapo confronted Mr. Oberholzer about a resurveyed property line and Mrs. Oberholzer responded by calling him a “fucking Jew.”  This prompted the Galapos in June 2015 to erect the first of many signs primarily displaying anti-hate and anti-racist messages “along the back tree-line directly abutting [the Oberholzers’] property line, pointed directly at [the Oberholzers’] house, and in direct sight of [other] neighbors’ houses.” ...  All told, the Galapos posted twenty-three signs over a years-long span, during which the neighbors continued to quarrel over other minor nuisances.

Among other things, the Oberholzers sued claiming the signs placed them in a false light. The majority concluded:

We hold the Galapos engaged in protected speech when they posted in their own yard stationary signs decrying hatred and racism.  We further hold the Oberholzers failed to prove that substantial privacy interests are being invaded in an essentially intolerable manner by the Galapos’ pure residential speech.  As such, Article I, Section 7 of the Pennsylvania Constitution and this Court’s precedents precluded the trial court from enjoining the signs, regardless of the nature of the torts alleged.  The injunction imposed an improper prior restraint on speech in violation of Article I, Section 7.

Justice Wecht filed a dissenting opinion, saying in part:

The Galapos argue that the present injunction violates the no-injunction rule, that it is an unconstitutional prior restraint on speech, and that it fails strict scrutiny.  These arguments are unpersuasive.  The no-injunction rule does not exist in Pennsylvania.  Moreover, even if it did exist, it would not apply here because the equity court did not purport to enjoin defamatory speech.... The argument that the injunction constitutes a prior restraint is also mistaken because the injunction does not restrict speech in advance of its publication.  Finally, the injunction withstands application of strict scrutiny because it is narrowly tailored to serve a compelling state interest.

Justice Brobson also filed a dissenting opinion, saying in part:

I would conclude that the trial courts of this Commonwealth have the authority to enjoin residential speech protected by Article I, Section 7 of the Pennsylvania Constitution that rises to the level of a private nuisance and disrupts the quiet enjoyment of a neighbor’s home.  I would further find that the Injunction is content neutral, furthers the Commonwealth’s significant interest in protecting the privacy and quiet enjoyment of the Oberholzers’ home, and burdens no more of the Galapos’ speech than necessary to protect the Oberholzers’ right to residential privacy.

AP reports on the decision.