Missouri Supreme Court Hears Oral Arguments On Sexual Orientation and Gender Identity Discrimination

Yesterday, the Missouri Supreme Court heard oral arguments in two cases posing the question of whether the prohibition on "sex" discrimination in the state's civil rights laws includes discrimination on the basis of gender identity or sexual orientation. The first case, R.M.A. v. Blue Springs R-IV School District (audio of full arguments), involves discrimination claims by a middle school student who was born a female but transitioned to male, who has not been allowed by his school to use the boy's rest rooms or locker room.  Because of his female genitalia, the school required him to use a unisex bathroom.

The second case, Lampley v. Missouri Commission on Human Rights (audio of full arguments), Harold Lampley, a state department of social services employee, alleged discrimination and retaliation because he is gay and does not exhibit stereotypical attributes of male appearance and behavior. A second employee alleged discrimination and retaliation because of her association with Lampley.

The Missouri Supreme Court's Docket Summaries page includes more information on the cases and links to briefs (including amicus briefs) filed in each case case [scroll down to SC96683 and SC 96828.  AP reports on the oral arguments.

Missouri High Court Rejects Church's Challenge To Signage Limits

In Antioch Community Church v. Board of Zoning Adjustment, (MO Sup. Ct., April 3, 2018), the Missouri Supreme Court upheld a zoning decision denying a Kansas City church a variance it sought so that it could retain the digital display on the sign in front of its church building. The decision focused primarily on technical interpretation of language in the Kansas City zoning ordinances regarding permissible signs in residential zones. The church, however, also raised First Amendment arguments which were rejected by the Court:

the Church’s brief on appeal notes most churches are located in residential areas and argues this means ordinances imposing limitations on signs in residential areas but not in commercial areas inherently discriminate against churches because of their location in residential areas.... Assuming for present purposes the Church were correct that an ordinance imposing additional restrictions on signs in residential areas could be considered content-based and discriminatory because churches tend to be located in residential areas, the Church did not preserve this claim.

KCUR reports on the decision. Also Court accompanied the opinion with a summary.

Permanent Injunction Issued In Contraceptive Mandate Case

In Sharpe Holdings v. United States Department of Health & Human Services, 2018 U.S. Dist. LEXIS 51158 (ED MO, March 28, 2018), the complex current status of the Obama Administration's Affordable Care Act Contraceptive Mandate rules led a Missouri federal magistrate judge to grant a declaratory judgment and permanent injunction to two religious organizations that object to those rules.  The Trump Administration had issued broader exemptions that covered plaintiffs, and at that point the government moved to dismiss the case as moot.  However in December 2017, Pennsylvania and California federal district courts entered nationwide preliminary injunctions against enforcement of the Trump Administration's broader exemptions. (See prior postings 1, 2). Thus the Obama Administration rules were again in effect.  This led the court in yesterday's opinion to hold:

in light of the Eighth Circuit's prior reasoning on plaintiffs' RFRA challenge to the accommodation process, and particularly given that the government no longer advances a substantive defense thereof, this Court holds that plaintiffs have attained actual success on the merits and are entitled to a permanent injunction.

Missouri Abortion Restriction Challenged In New Suit By Satanic Temple Member

A suit filed last week in a Missouri federal district court by a member of The Satanic Temple challenges Missouri's restrictions on abortion as a violation of the Establishment Clause and Free Exercise Clause of the U.S. Constitution.  The complaint (full text) in Doe v. Greitens, (ED MO,filed 2/28/2018), focuses on the requirements in Missouri law that a woman seeking an abortion be furnished a booklet that states in part that life begins at conception and an abortion will terminate the life of a living human being. It also challenges Missouri's 72-hour waiting period and the requirement that the woman be given the opportunity to view an active ultrasound.  The complaint says that plaintiff does not believe that life begins at conception and holds the religious belief that she alone can decide whether to remove human tissue from her body, according to the best scientific understanding of the world.

As previously reported, the Missouri Supreme Court in January heard oral arguments in a state Religious Freedom Restoration Act challenge by The Satanic Temple to the same abortion restrictions.  As reported by Friendly Atheist blog, one of the purposes of the new lawsuit is to undercut a mootness argument in the Missouri Supreme Court.  The lower court dismissed the lawsuit because the plaintiff was no longer pregnant.  The new suit is presumably intended to show that this challenge is one that is  within the exception for controversies that are capable of repetition but evade review.

Missouri Supreme Court Hears Oral Arguments In Satanic Temple Believer's Challenge To Abortion Law [UPDATED]

As reported by the Washington Post, the Missouri Supreme Court yesterday heard oral arguments in Doe v. Nixon,  a case brought by a woman who is a member of the Satanic Temple, challenging Missouri's restrictions on abortion. (See prior related posting.) Missouri's requires that abortion providers give patients a pamphlet that states :"The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being." Plaintiff contends that this violates her rights under the state's Religious Freedom Restoration Act. As reported by the Post:

[T]he Satanic Temple has a set of tenets that stipulate that a woman’s body “is inviolable and subject to her will alone”; that “she makes decisions regarding her health based on the best scientific understanding of the world, even if the science does not comport with the religious or political beliefs of others”; and that “human tissue,” — how the complaint defines a pregnancy dating to its conception — is part of her body that “she alone” can decide whether to remove.

UPDATE: A recording of the full oral arguments is now available online. According to a press release from the Satanic Temple:

D. John Sauer, Missouri’s Solicitor General announced to the State’s Supreme Court that ultrasounds are not mandatory to obtain an abortion. This information no doubt comes as a surprise to Missouri’s abortion providers who regularly perform ultrasounds they have perceived as mandated by the State. The issue arose during oral arguments in The Satanic Temple’s (TST) lawsuit, which asserts that State interference with the ability for a member of TST ... to terminate her pregnancy violates her rights under Missouri’s Religious Freedom Restoration Act (RFRA) because that interference has no medical or other compelling purpose.... 

... In an audio recording of the arguments published by the court, Justices of the court asked the State’s representative if, “it’s the position of the State that an ultrasound does not have to be conducted unless a person says they want the opportunity to hear the fetal heartbeat.” (13:16) Mr. Sauer affirms that the State’s interpretation of statute (MO Rev Stat § 188.027) is that women only be offered the “opportunity,” to have an ultrasound and listen to the fetal heartbeat, and if a woman declines hearing the audio, the ultrasound need not be performed and the requirement has been satisfied (15:20).

Dismissal of Claims Against Church For Sex Abuse by Youth Director Is Upheld

In B.B. v. Methodist Church of Shelbina, Missouri, (MO App., Dec. 19, 2017), a Missouri appellate court upheld the dismissal of a suit for damages against a church growing out of the sexual molestation of appellant by the church's youth director.  The molestation occurred in 2006 when appellant was 12 years old.  The court summarized its holding in part as follows in an accompanying Opinion Summary:

(1) The Establishment Clause ... bars Appellant’s negligence-based claims and his claim for breach of fiduciary/confidential relationship against Respondents because we cannot resolve these claims without interfering with and interpreting the doctrine, policy, polity, practice, and administration of the Respondents.

(2) Appellant has not and will not be able to present sufficient evidence to prove an element of his claim for intentional failure to supervise.... Specifically, Appellant failed to establish the sexual abuse he suffered occurred on property possessed by the Church.

(3) Appellant’s claims for child sexual abuse and battery against the Church fail ... because: a. [The youth director's] misconduct was completely outside the course and scope of his employment with the Church; b. Appellant’s argument the trial court erred in not imposing liability on the Church based on its employee’s failure to act on information given to her ... is nothing more than a reconstituted claim of negligence against the Church, which is not cognizable pursuant to precedent from Missouri courts....

Missouri Offers State Employees Health Policies That Exclude Abortion, Contraception, Sterilization

As previously reported, last year a Missouri federal district court in Wieland v. HHS enjoined the federal government from enforcing the Affordable Care Act against a state legislator who, on religious grounds, objected to participating in a healthcare plan for himself, his wife and his daughters that provides coverage for contraceptives.  Now according to a press release from the Thomas More Society, the state of Missouri has begun to offer all state employees the option of selecting a health insurance plan that excludes coverage for abortion, contraceptives or sterilization.

Religious Challenge To Missouri Informed Consent Abortion Law Goes To State High Court

In Doe v. Greitens, (MO App., Oct. 3, 2017), a Missouri appellate court transferred to the state Supreme Court an appeal in a religious freedom challenge to the state's abortion Informed Consent Law.  Missouri's law requires that a person seeking an abortion first receive a booklet containing specified information, including a statement that life begins at conception and that abortion will terminate the life of a separate, unique, living human being.  It also requires that the woman be given the opportunity to view an ultrasound and hear a fetal heartbeat, and then wait 72 hours before the abortion procedure.  According to the court:

Ms. Doe has alleged that the Informed Consent Law restricted her free exercise of religion and constitutes the state’s establishment of religion. The law, allegedly based on a religious tenet, required that she act and spend time and money, before undergoing a medical procedure in this state, contrary to actions—substantially motivated by her sincerely held religious beliefs—that she would have taken or refused to undertake....

Ms. Doe has alleged that Missouri’s Informed Consent Law unconstitutionally fosters an excessive government entanglement with religion in violation of the Establishment Clause. In this regard, she claims that the sole purpose of the law is to indoctrinate pregnant women into the belief held by some, but not all, Christians that a separate and unique human being begins at conception. Because the law does not recognize or include other beliefs, she contends that it establishes an official religion and makes clear that the state disapproves of her beliefs.

Under Missouri law, a transfer to the Supreme Court is required where a constitutional claims are real and substantial.

Supreme Court Holds Denial of Playground Resurfacing Grant To Church Violates Free Exercise Clause [UPDATED]

In a 7-2 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, (Sup. Ct., June 26, 2017), the U.S. Supreme Court today held that the First Amendment free exercise rights of Trinity Lutheran Church were violated when the state of Missouri denied the church's Child Learning Center a grant for resurfacing of its playground with scrap tire material.  The state had relied on Missouri Constitution's Blaine Amendment which prohibits financial assistance directly to any church.

Chief Justice Roberts delivered the opinion of the court which was joined in full by Justices Kennedy, Alito and Kagan.  Justices Thomas and Gorsuch joined Roberts' opinion except for a footnote that attempted to limit the holding to the facts of this case. In his opinion for the Court, Roberts said in part:

In recent years, when this Court has rejected free exercise challenges, the laws in question have been neutral and generally applicable without regard to religion. We have been careful to distinguish such laws from those that single out the religious for disfavored treatment.....

The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.....

Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character.... Trinity Lutheran is a member of the community too, and the State’s decision to exclude it for purposes of this public program must withstand the strictest scrutiny....

Justice Thomas filed a separate opinion concurring in part in which Justice Gorsuch joined. Justice Gorsuch filed a separate opinion concurring in part in which Justice Thomas joined.  Both opinions agreed largely with Justice Roberts, but would have been even stronger in support of the free exercise conclusion.

Justice Sotomayor filed a 27-page dissenting opinion which was joined by Justice Ginsburg, saying in part:

To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.....

The constitutional provisions of thirty-nine States—all but invalidated today—the weighty interests they protect, and the history they draw on deserve more than this judicial brush aside.

Washington Post reports on the decision.

Missouri Governor Calls Special Legislative Session To Enact Pro-Life Bills

Missouri Governor Eric Greitens on Wednesday issued a Proclamation (full text) calling a Special Session of the state legislature for June 12 in order to enact legislation to respond to two pro-abortion developments.  One was the enactment by the City of St. Louis of of an Ordinance barring discrimination in employment and housing because of reproductive health decisions or pregnancy status. (See prior posting.)  The Governor's Proclamation states that the St. Louis Ordinance "undermines pregnancy care centers that provide critical resources for women seeking counseling and support for alternatives to abortion," and calls on the legislature to preempt legislation like that enacted by St. Louis.

The second development triggering the call for a Special Session of the legislature is the federal district court's decision last month in Comprehensive Health of Panned Parenthood Great Plains v. Williams, (WD MO, April 19, 2017) which preliminarily enjoined state law requirements that doctors who perform abortions have hospital admitting privileges, and that abortion clinics meet requirements for ambulatory surgical centers. The Governor's Proclamation contends that the effect of the ruling is to eliminate meaningful licensure of abortion clinics and the Proclamation calls for enactment of a number of new provisions on licensure of abortion clinics.

The Governor issued a press release and a Facebook video explaining his action in more detail, saying in part: "I'm pro-life, and I believe that we need to defend life and promote a culture of life here in the state of Missouri."

Suit Challenges Ordinance Barring Discrimination On Basis of Reproductive Health Services

In February 2017, the St. Louis (MO) Board of Aldermen enacted Ordinance 70459 which added to the city's existing laws against discrimination in employment and housing a prohibition on discrimination "because of ... reproductive health decisions or pregnancy status (including childbirth or a related medical condition)".  Yesterday suit was filed in a Missouri federal district court challenging the Ordinance which the lawsuit says was represented as barring discrimination against those who have had, or are planning to have, an abortion.  The complaint (full text) in Our Lady's Inn v. City of St. Louis, (ED MO, filed 5/22/2017) contends that in fact the Ordinance is much broader, saying in part:

Ordinance 70459 forbids Plaintiffs and others from making adverse employment, housing or realty decisions based on an individual or entity being an abortion activist, advocate or provider....  Thus, the Ordinance forbids Plaintiffs from refusing to sell or rent real property to individuals and corporate organizations that promote or provide abortions....

The complaint alleges that the Ordinance violates the speech and religion clauses of the 1st Amendment,  the due process and equal protection clauses of the 14th Amendment as well as various provisions of state law.  Thomas More Society issued a press release announcing the filing of the lawsuit.

Missouri Legislature Restores Employment Discrimination Exemption For Religious Hospitals and Colleges

The Missouri legislature on Monday gave final passage to SB 43 (full text) which, among other things, restores the exemption for religiously affiliated hospitals and colleges from the state's employment discrimination law.  The existing version of the state's employment discrimination law excludes from the definition of "employer" any corporation or association "owned and operated by religious or sectarian groups." In a 2013 decision the Missouri Supreme Court in Farrow v. St. Francis Medical Center held that a Catholic hospital did not qualify for the exclusion because, while it may have been operated by a religious organization, it was not "owned" by a religious group. The statute just passed by the legislature (Sec. 213.010(8)) now provides an exclusion for "corporations and associations owned or operated by religious or sectarian organizations." The Pathway reporting on the bill says that Gov. Eric Greitens is expected to sign the bill in the near future.

University Settles Suit By Christian Counseling Student

The Springfield News-Leader reports that last month Missouri State University agreed to pay former student Andrew Cash $25,000 to settle a lawsuit brought by him charging that he was suspended from the Masters program in Counseling because of his religious beliefs. (See prior posting.) Cash says he was not allowed to complete his internship at a Christian counseling institute because it refuses to counsel same-sex couples, a position which Cash embraces. Under the settlement, Cash cannot seek readmission to Missouri State University.

Court Grants Variance To Allow Digital Church Sign

In Antioch Community Church v. Board of Zoning Adjustment, (MO App., Dec. 13, 2016), a Missouri state appeals court held that the Kansas City Zoning Adjustment Board abused its discretion when it refused to grant a church a variance from the city's sign ordinance.  The church modified its sign which displayed messages by way of manually hung letters to substitute a digital display.  The upgrade cost the church $11,000, and it installed it unaware that the Kansas City sign code prohibits digital displays on church property in residential zones. In ordering the variance granted, the appeals court said in part:

The Church is on a busy roadway nestled in the middle of considerable commercial development. Its sign does not substantially change the character of the neighborhood, and no evidence was introduced to show a substantial detriment to neighboring properties.

KCUR reports on the decision.

Missouri Appeals Court: Frozen Pre-Embryos Are Marital Property, Not Children

In McQueen v. Gadberry, (MO App., Nov. 15, 2016), a Missouri state appellate court in a 2-1 decision held that frozen pre-embryos created from the husband's sperm and the wife's eggs for the purpose of in vitro fertilization are to be treated as marital property in a divorce proceeding, rather than being treated as children. The appeals court upheld the trial court's award of the pre-embryos to the husband and wife jointly with the stipulation that they could be used only with the consent of both parties.  The wife had argued that because Mo. Rev. Statutes Sec. 1.205 declares that "the life of each human being begins at conception," the court should have treated the pre-embryos as children and awarded her custody so that she could have them implanted to become pregnant. The majority held, however, that applying this declaration to pre-embryos would infringe the father's right to privacy and his right not to procreate.  The majority observed:

We balance the interests of the parties in this case because the frozen pre-embryos are still in vitro and have not been transferred to or implanted in McQueen’s uterus, and therefore, the disposition of the frozen pre-embryos does not implicate McQueen’s right to bodily integrity in the area of reproductive choice under Roe which would outweigh any of Gadberry’s interests in avoiding parenthood.

Judge Dowd, dissenting, argued that the embryos should have been treated as children and the trial court should have applied the statutory provisions on child custody in awarding them. He argued that the father already made a reproductive decision in creating the embryos and so has no further reproductive decision to protect. AP reports on the decision.

Court Enters Findings For Priest As Sanction For SNAP's Refusal To Comply With Discovery Order

Last year, St. Louis Catholic priest Xiu Hui "Joseph" Jiang, who had been charged with abusing a boy, but then had charges dropped, filed a federal lawsuit against a number of defendants, including the boy's parents and the victim advocacy group SNAP.  The suit charged SNAP with conspiracy, defamation and infliction of emotional distress. (See prior postings 1, 2).  As reported by the St. Louis Post-Dispatch, Jiang has been attempting through discovery to obtain information on people who had made complaints against him to SNAP.  The court ordered SNAP to produce that (and other) information, but it has refused.  So Jiang moved for the imposition of sanctions under Rule 37 of the Federal Rules of Civil Procedure.  In Jiang v. Porter, (ED MO, Aug. 22, 2016), a Missouri federal district court judge imposed unusual sanctions:

[T]he Court will direct that the facts alleged supporting elements of plaintiff’s claims against the SNAP defendants have been established for the purpose of this action.... 

[T]he Court will direct that it has been established that the SNAP defendants conspired with one another and others to obtain plaintiff’s conviction on sexual abuse charges and that they entered into this conspiracy due to discriminatory animus against plaintiff based on his religion, religious vocation, race and national origin.

Satanic Temple Challenge To Missouri Abortion Restrictions Dismissed On Standing Grounds

Last month in Satanic Temple v. Nixon. (ED MO, July 15, 2016), a Missouri federal district court dismissed for lack of standing a suit by the Satanic Temple and one of its members challenging on free exercise and establishment clause grounds Missouri's disclosure and waiting period requirements for women seeking an abortion.  Missouri requires the abortion provider to deliver to a woman seeking an abortion a pamphlet that states in part: "The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being"  The Missouri law also requires a 72 hour waiting period and the opportunity to view an ultrasound, Plaintiffs alleged that these requirements are inconsistent with beliefs of the Satanic Temple and are medically unnecessary.  The court concluded: "Plaintiff Doe is not now pregnant, there is no guaranty that she will become pregnant in the future, and that if she does, she will seek an abortion,,,," Last week in Verdict, Prof. Marci Hamilton commented on the decision. In January a Missouri state court dismissed a similar challenge brought under RFRA. (See prior posting.)

Amicus Briefs In Support of Petitioner In Trinity Lutheran Case Are Now Available

Next term, the U.S. Supreme Court will hear oral arguments in Trinity Lutheran Church of Columbia, Inc. v. Pauley challenging Missouri's exclusion under its "no aid" clause of churches from its secular grant program for playground improvements. (See prior posting.) The deadline for amicus briefs in support of petitioner has now passed, and 25 briefs in support of Trinity Lutheran Church have been filed, along with one amicus brief in support of neither side. Links to all of the amicus briefs are available from the SCOTUSblog case page for the case.  Respondent's brief is not due until June 28, with amicus briefs supporting respondent due a week after that.

Student Sues After Suspension From M.S. Program Over Refusal To Counsel Gay Couples

A suit was filed last week in federal district court in Missouri by a former student in the Masters in Counseling program at Missouri State University alleging that he was removed from the program because of his religious views on counseling same-sex couples on their relationships.  The complaint (full text) in Cash v. Governors of Missouri State University, (WD MO, filed 4/19/2016), alleges in part:

Plaintiff’s experience at MSU has been devastating, crushing, and tormenting, culminating in his termination from the program -- all because he interned with a Christian organization and expressed his religious beliefs on a hypothetical question about counseling a gay couple on relationship issues.

... Plaintiff was targeted and punished for expressing his Christian worldview ... regarding a hypothetical situation.... Since he did not give the “correct” answer required by his counseling instructors, he was considered unsuitable for counseling and terminated from the program.

Thomas More Society announced the filing of the lawsuit. AP reports on the case.

Break-Away Presbyterian Church Settles Suit By Paying $1.1M For Its Building

According to yesterday's St. Louis Post Dispatch, a break-away Presbyterian congregation in Chesterfield, Missouri has settled a lawsuit against it by the Giddings-Lovejoy Presbytery.  When Bonhomme Presbyterian Church broke away from the Presbyterian Church (USA) to join the more conservative Covenant Order of Evangelical Presbyterians, the Presbytery sued claiming that the congregation's property belongs to the Presbytery.  In the settlement, Bonhomme paid the Presbytery $1.1 million for the church building and property.