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.

Anti-Injunction Act Precludes RLUIPA Claim, But Church's Constitutional Claims Move Ahead

 In Resurrection House Ministries, Inc. v. City of Brunswick, (SD GA, Aug. 23, 2024), a Georgia federal district court held that the federal Anti-Injunction Act required dismissal of a RLUIPA lawsuit brought by a Ministry against which the city had filed a nuisance action.  The ministry had attempted to open a shelter for the homeless, to which the city objected. However, the court permitted the Ministry to move ahead with its 1st, 4th, 5th and 14th Amendment claims against the city, concluding that the Younger abstention doctrine did not apply. It concluded that plaintiff had adequately alleged that the nuisance action had been brought against it in bad faith, saying in part:

RHM alleges providing a shelter to needy individuals is a tenet of its Christian religion and, therefore, institution of the temporary emergency shelter is a practice of such religion. And practice of RHM’s religion is constitutionally protected by the Free Exercise Clause.... Therefore, RHM has satisfied its burden under the first prong of the Court’s analysis because it has sufficiently alleged that “the conduct allegedly retaliated against or sought to be deterred was constitutionally protected.”...  

The Court also finds that RHM’s allegations are sufficient to set forth that Defendants’ institution of the Nuisance Proceedings “was motivated at least in part by a purpose to retaliate for or to deter that conduct.”

Utah Supreme Court Upholds Preliminary Injunction Against Law Banning Most Abortions

 In Planned Parenthood Association of Utah v. State of Utah, (UT Sup. Ct., Aug. 1, 2024), the Utah Supreme Court, in a 4-1 decision, affirmed a trial court's entry of a preliminary injunction against enforcement of SB174, a trigger law that prohibits all abortions except for death or substantial bodily harm of the mother, lethal defect or brain abnormality of the fetus, or the mother was pregnant as a result of rape or incest. The state Supreme Court said in part:

In re J.P. discussed, among other [state constitutional] rights, the right to marry the person of one’s choosing and the right to establish a home.... The commonality these rights share is not a child, but the right to make certain intimate decisions about one’s life free from government intrusion. At this point in the litigation, we cannot say whether a restriction on the ability to choose to have an abortion infringes the rights we recognized in In re J.P., but there are serious questions regarding the scope of those rights that merit further litigation....

PPAU has standing to press its claims and the claims of its patients. 

The district court did not err when it concluded that PPAU had raised serious issues about the constitutionality of SB 174. The court did not abuse its discretion when it concluded that PPAU and its patients would be irreparably harmed without the injunction. Likewise, the court did not abuse its discretion when it concluded that the balance of harms tipped in favor of enjoining SB 174 while the parties litigate its constitutionality. Nor did the court act outside the bounds of its discretion when it concluded that the injunction would not be adverse to the public interest.

Chief Justice Durrant filed a dissenting opinion, contended that Planned Parenthood lacked standing to bring the lawsuit.

Utah News Dispatch reports on the decision.

Canadian Court Enjoins Enforcement of Guidelines That Adversely Impact Kosher Slaughtering

 In Jewish Community Council of Montreal v. Canada (Attorney General), (CA Fed. Ct., July 24, 2024), a judge of the Canadian Federal Court issued an interlocutory injunction preventing the Canadian Food Inspection Agency from enforcing Guidelines that require kosher slaughterers that do not stun animals before slaughter to test three indicators of unconsciousness before suspending an animal. Jewish organizations that are plaintiffs in the case say that imposition of the new Guidelines has reduced the volume of kosher beef produced in Canada by 55% and the volume of kosher veal by 90%. The court said in part:

The issue is therefore whether the Guidelines requiring the application of the three indicators of unconsciousness to ensure that an animal is unconscious before suspension, as required under section 143 of the SFCR, are reasonable when applied to shechita, or whether they represent an encroachment on the Applicants’ right to freedom of religion under subsection 2(a) of the Charter, or whether the requirement is discriminatory under section 15 of the Charter....

The Applicants submit that the Guidelines constitute a major departure from prior practice and are unduly protective as they essentially require that the animal be brain-dead before being suspended, when section 143 of the SFCR only requires that the animal be unconscious.... The Guidelines therefore require an unreasonable application of the precautionary principle which does not measurably add to animal welfare (as required under sections 141 to 144 of the SFCR) while slowing down the operation of kosher slaughter to the point where licence holders prefer to cease production. As a result, the Guidelines restrict access to kosher meat and prevent Canadian Jews from exercising the requirements of their faith.

The Guidelines are also discriminatory as they unfairly associate a religious practice of shechita to animal pain, and impose a challenge that does not apply to non-kosher meat production. The Guidelines therefore impose on Jews a burden and deny them benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating a disadvantage. Their Charter rights to freedom of religion and the right to equality enshrined in the Charter are therefore unjustifiably restricted....

For the perspective of shochetim and bodkim, they are deprived of their ability to practise their faith and profession, as they can no longer exercise their duties as religious leaders in the community. As shochetim and bodkim represent a precious resource for the Canadian Jewish community, the loss of their expertise will encroach on the Canadian Jewish community’s culture and collective aspect of religious beliefs. The interference is therefore substantial, both from an individual and collective point of view....

Hamodia reports on the decision. 

Apaches Seek Review of Their RFRA Claim by 29-Judge Panel

As previously reported, last month the U.S. 9th Circuit Court of Appeals sitting en banc, by a vote of 6-5, refused to enjoin the government from transferring to a copper mining company federally-owned forest land that is of significant spiritual value to members of the Western Apache tribes. The land sits on the third largest deposit of copper ore in the world. The case generated six separate opinions spanning 241 pages which created separate majority alignments on different aspects of the interpretation of the Religious Freedom Restoration Act. Yesterday, plaintiffs filed a petition (full text) seeking review by a panel of all 29 judges on the 9th Circuit. The petition states in part:

If any case warrants full-court review, it is this one—where one en banc panel has overruled another, this Court’s judges are split 6-6, and a fractured decision has contradicted Supreme Court precedent on a question of existential importance to Native Americans. That question is whether the government “substantially burdens” religious exercise when it physically destroys a Native American sacred site, ending religious exercise forever. And the answer is plain: yes.

Becket Fund for Religious Liberty issued a press release announcing the filing.

Supreme Court Limits Scope of Injunction Against Idaho's Gender-Affirming Treatment Ban

In Labrador v. Poe, (Sup. Ct., April 15, 2024), the U.S. Supreme Court, in a case generating three separate opinions, but no opinion for the court, discussed three important issues-- the increasing number of cases on the Court's Emergency Docket (sometimes called its "Shadow Docket"); the increasing number of statewide or nationwide injunctions (sometimes called "Universal Injunctions") issued by federal district courts; and the constitutionality of bans on gender-affirming health care for minors. Last December, an Idaho federal district court issued a preliminary injunction barring the Idaho Attorney General and a county prosecutor from enforcing the state's recently enacted Vulnerable Child Protections Act against anyone. It concluded that the ban likely violated the equal protection clause and plaintiffs' parental rights to make medical decisions for their children. (See prior posting.) One reason given by the district court for issuing a statewide injunction was that plaintiffs, to maintain their privacy, were proceeding using pseudonyms, and it would be difficult to fashion an order applying only to plaintiffs without compromising their anonymity. The 9th Circuit issued a brief order affirming the district court.

In the petition filed with the Supreme Court, the state did not contest the granting of an injunction limited to the plaintiffs' obtaining gender-affirming drug treatments for their children. It only challenged the breadth of the district court's preliminary injunction. The Supreme Court, without issuing an opinion for the majority, stayed the district court's order "except as to the provision to the plaintiffs of the treatments they sought."   Justice Gorsuch, joined by Justices Thomas and Alito, issued a concurring opinion, saying in part:

The district court issued this sweeping relief even though, by its own admission, the plaintiffs had failed to “engage” with other provisions of Idaho’s law that don’t presently affect them—including the law’s provisions prohibiting the surgical removal of children’s genitals.... In choosing such an extraordinary remedy, the district court clearly strayed from equity’s traditional bounds.

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

Traditionally, one important factor when this Court decides an emergency application involving a new law is likelihood of success on the merits.  The likelihood of success on the merits factor can pose difficulty, however, because it can require the Court to assess the merits of important cases earlier and more quickly than is ordinarily preferable, and to do so without the benefit of full merits briefing and oral argument.  But when resolving emergency applications involving significant new laws, this Court often cannot avoid that difficulty. It is not ideal, but it is reality. Given that reality, the Court must then determine the best processes for analyzing likelihood of success on the merits in emergency cases.

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

This case presents numerous reasons for exercising restraint.  As explained in Part I below, the State of Idaho’s emergency application asks us to override the decisions of two lower courts based on an issue not clearly implicated and under circumstances where the State does not contest that its law should remain enjoined as likely unconstitutional, at least as applied to the plaintiffs.  As described in Part II, even if today’s application actually involved a “universal injunction,” the emergency docket would not be the place to address the open and challenging questions that that issue raises.

Justice Kagan dissented, without opinion. Chief Justice Roberts did not indicate how he voted.

SCOTUSblog reports at greater length on the opinions.

Satanic Temple Can Move Ahead with Establishment Clause Challenge to Its Treatment by City Council

In The Satanic Temple v. The City of Chicago, (ND IL, March 31, 2024), an Illinois federal district court held that The Satanic Temple ("TST") had alleged enough to move ahead on its claim that the city had violated the Establishment Clause by constantly delaying for over three years a request by a TST clergyman to deliver an invocation at a Chicago City Council meeting.  The court said in part:

The Establishment Clause requires that the City treat Vavrick the same as it would any other clergy member from any other religion. Assuming, therefore, that the City has not scheduled Vavrick to give an invocation because of his religious beliefs, such practice violates the Establishment Clause.

The court however dismissed plaintiffs' free speech claim finding that plaintiffs had not plausibly alleged that City Council invocations are anything other than government speech. It also refused to grant a preliminary injunction.

Suit For Misappropriating Church Funds Not Precluded by Church Autonomy Doctrine

In Buck v. Peace Apostolic Church, Inc., (CA Super. Ct., March 8, 2024), a California trial court rejected the contention that the church autonomy or ecclesiastical abstention doctrine precludes the court from adjudicating a claim that two church officers and directors improperly spent church funds.  The court said in part:

The First Amendment does not immunize the Church or the individual defendants from illegal acts that apply equally to everyone, religious or not. The Plaintiffs alleged and proved that Defendants committed fraud and engaged in false advertising. Defendants solicited donations from the public promising that “no part of the income or assets of this corporation shall ever inure to the benefit of any director, officer, or member thereof or to the benefit of any private person.”... Prince used her position in the church and the representations made by her and by the church to enrich herself. While Brown did not enrich herself, she facilitated the enrichment of her son, Howard Woods. The defendants cannot take money based on a representation that it would be used for charitable purposes and church mission and use it for personal benefit. That's not internal church governance. That's fraud. The activities that occurred in that case are not protected by the First Amendment.... 

On December 19, 2023, the Court ordered injunctive relief. In part, PAC was ordered to post warnings that read “WARNING: A Jury has found that Tamara Swancy-Prince, Priscilla Woods Brown and Peace Apostolic Church have improperly misappropriated donations.” PAC objects to the injunction arguing that the Court misapplied the law.... The Court is simply not convinced that similar abuses won’t recur.

Appeals Court Upholds Preliminary Injunctions Against Texas Treating Gender-Affirming Care as Child Abuse

In Abbott v. Doe, (TX App., March 29, 2024), a Texas state appellate court upheld a trial court's preliminary injunction against the state's Department of Family and Protective Services and its Commissioner. The preliminary injunction barred these defendants from taking investigative or enforcement action based on the state Attorney General's Opinion, the Governor's letter and Statement by the Department implementing it that deemed many of the procedures used to treat gender dysphoria to be child abuse. (See prior posting.) The court, concluding that the trial court had not abused its discretion in entering the injunction, said in part:

The injuries Appellees allege, and that the injunction redresses, are that the application or threatened application of the allegedly invalid rule announced in the Department Statement interferes with or impairs the Doe Parents’ right to make imminent decisions about their child’s medical care, Mary’s guarantee of equal rights and equality under law, and Appellees’ rights to due process because the rule is unconstitutionally vague.  See Tex. Const. art. I, §§ 3, 3a, 19....

The temporary injunction specifically precludes the Department from taking action against Appellees based on the rule announced in the Department Statement, which references the Governor’s Directive and the Attorney General’s opinion....  The temporary injunction remedies Appellees’ injuries because it temporarily reinstates Department policies and procedures for screening reports and conducting investigations as they existed prior to February 22, 2022....  At that time, the Department would have applied the same policies and standards to a report concerning gender-affirming medical care as to any other case of suspected child abuse....  Before February 22, 2022, the Department had no rule that categorically deemed the provision of gender-affirming medical care presumptively abusive or required investigation and a disposition for every report of gender-affirming medical care without regard to medical necessity....

In Muth v. Voe, (TX App, March 29, 2024), a second case upholding two temporary injunctions issued by a different state trial court, the appellate court said in part:

We hold that at a minimum the Families have established a probable right to relief on their claim that the Department Statement is an invalid rule because it is a rule within the meaning of the APA and it was adopted without following proper rulemaking procedures.  This claim is sufficient to support the trial court’s temporary injunctions.

Reuters reports on the decision.

9th Circuit En Banc Refuses to Bar U.S. Transfer of Sacred Apache Site to Copper Mining Company

In Apache Stronghold v. United States, (9th Cir., March 1, 2024), the U.S. 9th Circuit Court of Appeals sitting en banc, by a vote of 6-5, refused to enjoin the government from transferring to a copper mining company federally-owned forest land that is of significant spiritual value to the Western Apache Indians. The land sits on the third largest deposit of copper ore in the world. The case generated six separate opinions spanning 241 pages. The court's per curiam opinion summarizes the holding:

A majority of the en banc court ...concludes that (1) the Religious Land Use and Institutionalized Persons Act of 2000 ... and the Religious Freedom Restoration Act ... are interpreted uniformly; and (2) preventing access to religious exercise is an example of substantial burden.  A majority of the en banc court therefore overrules Navajo Nation v. U.S. Forest Service to the extent that it defined a “substantial burden” under RFRA as “imposed only when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit (Sherbert) or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Yoder).”...   

A different majority ...concludes that (1) RFRA subsumes, rather than overrides, the outer limits that the Supreme Court’s decision in Lyng v. Northwest Indian Cemetery Protective Ass’n ... places on what counts as a governmental imposition of a substantial burden on religious exercise; and (2) under Lyng, a disposition of government real property does not impose a substantial burden on religious exercise when it has “no tendency to coerce individuals into acting contrary to their religious beliefs,” does not “discriminate” against religious adherents, does not “penalize” them, and does not deny them “an equal share of the rights, benefits, and privileges enjoyed by other citizens.”... The same majority holds that Apache Stronghold’s claims under the Free Exercise Clause and RFRA fail under these Lyng-based standards and that the claims based on the 1852 Treaty fail for separate reasons.  

We therefore AFFIRM the district court’s order denying the motion for a preliminary injunction.

Becket issued a press release announcing the decision and saying in part: "With the help of Becket, Apache Stronghold has vowed to appeal the decision to the U.S. Supreme Court." Los Angeles Times reports on the decision.

UPDATE: On May 14, 2024, the Court issued an amended opinion, clarifying some of the reasoning of the majority.

7th Circuit Reinstates Indiana Ban on Gender Affirming Care For Minors

In K.C. v. Individual Members of the Medical Licensing Board of Indiana, (7th Cir., Feb. 27, 2024), the U.S. 7th Circuit Court of Appeals stayed a preliminary injunction against Indiana's ban on non-surgical gender transition procedures for minors. The preliminary injunction was granted by an Indiana federal district court in June 2023 (full text of district court opinion). The 7th Circuit issued its Order lifting the injunction, saying that an opinion will follow. In a press release, the ACLU called the 7th Circuit's action "a heartbreaking development for thousands of transgender youth, their doctors, and their families." Indiana Attorney General Todd Rokita, in a post on X (formerly Twitter) said in part: "We are proud to win this fight against the radicals who continue pushing this horrific practice on our children for ideological and financial reasons." Indy Star reports on the case.

Inmate's Speech and Religion Challenges to His Execution Method Are Not Dismissed, But Execution Not Enjoined

In Smith v. Hamm, (MD AL, Jan. 10, 2024), plaintiff, who is scheduled for execution by nitrogen hypoxia on January 25, challenges the legality of his execution on several grounds.  Among these are his claims that his free speech rights as well as his free exercise rights are violated because masking him will interfere with his making an audible statement and praying audibly during his execution.  The court concluded that plaintiff had made plausible claims that the execution protocol violates his First Amendment free speech rights and his religious free exercise rights under RLUIPA, the First Amendment and the Alabama Religious Freedom Act (as well as his 8th Amendment rights).  Therefore, it denied defendants' motion to dismiss those claims.  The court went on, however, to conclude that plaintiff had not shown a substantial likelihood of success on the merits of those claims. Therefore, the court refused to issue a preliminary injunction to bar execution of plaintiff. At issue in the case is the state's second attempt to execute plaintiff. A previous attempt to execute him by lethal injection failed when after 90 minutes of trying, authorities were unable to access his veins.

Canadian Church Not in Contempt for Violating Covid Restrictions

In New Brunswick v. His Tabernacle Family Church Inc., (KB NB, Feb. 3, 2023), a trial court in the Canadian province of New Brunswick refused to hold a church in contempt for a violation of Covid restrictions because it was not unequivocally clear that the church knew it was in violation of a previous consent decree.  The church, after signing a consent decree, moved its services to a commercial tent in order to avoid restrictions on gatherings in "public indoor spaces." Initially the sides of the tent were raised, but as weather became colder, the church lowered the sides.  The Province contended that once the sidewalls of the tent were down, the tent became an enclosed space. The court said in part:

The Applicant was aware that initially the Respondents were using the commercial tent with the side walls up. My understanding of the Applicant's position is that such activity would not be in violation of the Mandatory Order as it relates to "public indoor spaces." However, once all four side walls of the tent were down, the Applicant was of the view that the Mandatory Order had been breached. At a minimum, it was incumbent on the Applicant to advise the Respondents at what point they would be in breach of the Mandatory Order.... [T]here is a point at which the use of the commercial tent becomes an "enclosed space". However, as I write this decision, it is unclear to me when that occurs and counsel for the Applicant were unable to provide a clear answer to the question.... [T]he court struggles to understand how the Respondents were to know....

Fox News reports on the decision.

6th Circuit Affirms Preliminary Injunction Protecting Air Force Personnel Who Have Religious Objections to COVID Vaccine

 In Doster v. Kendall, (6th Cir., Nov. 29, 2022), the U.S. 6th Circuit Court of Appeals affirmed a district court's grant of a class-wide preliminary injunction barring the Air Force from disciplining Air Force personnel who have sought religious exemptions from the military's COVID vaccine mandate. The injunction however did not interfere with the Air Force’s operational decisions over the Plaintiffs’ duties. The 6th Circuit concluded that plaintiffs' RFRA claim was likely to succeed on the merits, saying in part:

Some 10,000 members with a wide array of duties have requested religious exemptions from this mandate. The Air Force has granted only about 135 of these requests.... Yet it has granted thousands of other exemptions for medical reasons (such as a pregnancy or allergy) or administrative reasons (such as a looming retirement)....

Under RFRA, the Air Force wrongly relied on its “broadly formulated” reasons for the vaccine mandate to deny specific exemptions to the Plaintiffs, especially since it has granted secular exemptions to their colleagues.... The Air Force’s treatment of their exemption requests also reveals common questions for the class: Does the Air Force have a uniform policy of relying on its generalized interests in the vaccine mandate to deny religious exemptions regardless of a service member’s individual circumstances? And does it have a discriminatory policy of broadly denying religious exemptions but broadly granting secular ones? A district court can answer these questions in a “yes” or “no” fashion for the entire class.....

In the abstract, the Air Force may well have a compelling interest in requiring its 501,000 members to get vaccinated. It has also largely achieved this general interest, as evidenced by its ability to vaccinate over 97% of its force.... Under RFRA, however, the Air Force must show that it has a compelling interest in refusing a “specific” exemption to, say, Lieutenant Doster or Airman Colantonio.... To succeed ..., the Air Force must identify the duties of each Plaintiff and offer evidence as to why it has a compelling interest in forcing someone with those duties to take the vaccine or face a sanction....

If the Air Force can permanently retain those who cannot deploy because of their religious objections to a war, it must explain why it cannot permanently retain those who cannot deploy because of their religious objections to a vaccine.

(See prior related posting.) Courthouse News Service reports on the decision.

Delaware Chancery Court Says Religious Leaders' Challenge to COVID Orders Was Filed in Wrong Court

In In re Covid Related Restrictions on Religious Services, (Del. Ch., Nov. 22, 2022), the Delaware Court of Chancery held that a challenge by religious leaders to now-lifted Covid-related restrictions on religious services should be brought in Superior Court, not in Delaware's Chancery Court which is limited to providing equitable relief. The state's other courts are capable of awarding damages and issuing a declaratory judgment. In reaching that conclusion, however, the court modified the test it has traditionally used to determine whether to grant a permanent injunction. The court said that in order to obtain a permanent injunction, as opposed to a TRO or preliminary injunction, petitioner must only show that remedies at law would be inadequate. Threat of irreparable harm is one way, but not the only way, to show this. The court went on, however, to conclude:

[W]hen a plaintiff seeks to ground equitable jurisdiction on the potential need for a permanent injunction, the pled facts must support a reasonable apprehension that the defendant will act in a manner that will necessitate the injunction’s issuance. Under the reasonable-apprehension test, a plaintiff’s subjective fears are not sufficient. There must be objectively good reasons to think that a permanent injunction will be warranted. The plaintiffs have not pled facts that make it reasonably conceivable that the Governor will re-impose the Challenged Restrictions.

Justice Sotomayor Stays NY Order Requiring Yeshiva University To Recognize LGBTQ Group

In Yeshiva University v. YU Pride Alliance, (Sup. Ct., Sept. 9, 2022),  U.S. Supreme Court Justice Sonia Sotomayor today issued an order staying a New York trial court's injunction that required Yeshiva University to officially recognize as a student organization an LGBTQ group, YU Pride Alliance. The New York trial court held that applying the public accommodation provisions of the New York City Human Rights Law to Yeshiva does not violate its First Amendment free exercise or free speech rights. (See prior posting.) Justice Sotomayor granted the University's Emergency Application for a Stay Pending Appellate Review without referring the petition to the full Court. However she wrote that her stay was granted "pending further order of the undersigned or of the Court." CNN reports on developments.

Court Lifts Pre-Dobbs Injunction Against Enforcement Of North Carolina Abortion Ban

 In Bryant v. Woodall, (MD NC, Aug 17, 2022), a North Carolina federal district court lifted an injunction it had entered in 2019 enjoining enforcement North Carolina statutes that prohibited pre-viability abortions. The court said in part:

None of the parties argue that the injunction remains legally enforceable, nor could they. The injunction was entered under the authority of Roe and Casey; that precedent has been overruled by Dobbs. Because the power to regulate abortion has been returned to the states, the parties’ suggestion that this court’s injunction is having an effect, whether preventing “confusion,”... or “preserv[ing] Plaintiffs’ ability to provide critical healthcare services,”... suggests the parties are improperly relying upon, and asserting, an injunction that is no longer lawful.

ADF issued a press release announcing the decision.

Arizona Law On Rights Of Unborn Is Unconstitutionally Vague

In Isaacson v. Brnovich, (D AZ, July 11, 2022), an Arizona federal district court issued a preliminary injunction barring the application of Arizona's "Interpretation Policy" to abortion care that is otherwise permissible under Arizona law.  At issue is an Arizona statute that provides:

The laws of this state shall be interpreted and construed to acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of this state....

The court said in part:

The Interpretation Policy is intolerably vague because it is entirely unclear what it means to construe and interpret Arizona law to “acknowledge” the equal rights of the unborn.....

Because of the indeterminate meaning and applicability of the Interpretation Policy, abortion providers do not have fair notice of whether, if they conform their conduct to these laws, they nonetheless may face criminal, civil, or professional liability under other statutes based solely on what licensing, law enforcement, or judicial officials think it means to “acknowledge” the equal rights of the unborn.

Courthouse News Service reports on the decision.

Florida Judge Says 15-Week Abortion Ban Violates State Constitution

Palm Beach Post and Florida ACLU report that yesterday, a Florida state circuit court judge ruled from the bench that Florida's ban on abortions after 15 weeks of pregnancy violates the Florida Constitution's protection of the right of privacy. However the judge has not yet issued a formal written opinion or entered a preliminary injunction, so the 15 week ban will go into effect today until an injunction actually issues.

1st Circuit: Employees With Religious Objection To Vaccine Mandate Not Entitled To Injunction

In Together Employees v. Mass General Brigham, Inc., (1st Cir., April 27, 2022), the U.S. 1st Circuit Court of Appeals denied a preliminary injunction to hospital employees who were denied religious exemptions from the hospital's COVID vaccine mandate. The court held that the employees failed to show the irreparable injury necessary to obtain injunctive relief, saying in part:

It is black-letter law that "money damages ordinarily provide an appropriate remedy" for unlawful termination of employment.