State Trial Court Strikes Down Wyoming Abortion Bans

In Johnson v. State of Wyoming, (WY Dist. Ct., Nov. 18, 2024), a Wyoming state trial court held that two Wyoming statutes barring abortions violate the Wyoming Constitution. One of the statutes bans all abortions with narrow exceptions. The other is a ban on prescribing or selling medication abortion drugs. The court said in part:

Under the Life Act and the Medication Abortion Ban, the State has enacted laws that impede the fundamental right to make health care decisions for an entire class of people, pregnant women. Wyoming Constitution, article 1, section 38 provides all individuals with the fundamental right to their own personal autonomy when making medical decisions. The Defendants have not established a compelling governmental interest to exclude pregnant women from fully realizing the protections afforded by the Wyoming Constitution during the entire term of their pregnancies, nor have the Defendants established that the Abortion Statutes accomplish their interest. The Court concludes that the Abortion Statutes suspend a woman's right to make her own health care decisions during the entire term of a pregnancy and are not reasonable or necessary to protect the health and general welfare of the people.

The court entered a permanent injunction, thus extending the temporary restraining orders that it had previously issued. Buckrail reports on the decision and reports that Wyoming Governor Mark Gordon has indicated that the decision will be appealed to the state Supreme Court.   [Thanks to Scott Mange for the lead.]

Two Additional Courts Enjoin Enforcement of New Title IX Rules

In addition to the nationwide preliminary injunction against enforcement of the Department of Education's new Title IX rules on transgender discrimination (see prior posting), two other federal district court last week issued more geographically limited preliminary injunctions against enforcement of the same rules. In State of Florida v. Department of Health and Human Services, (MD FL, July 3, 2024),  a Florida federal district court enjoined enforcement within Florida, saying in part:

HHS and the Final Rule interpret Title IX, and hence section 1557, to prohibit discrimination based on “gender identity.” 89 Fed. Reg. at 37,699 (45 C.F.R. § 92.101(a)(2)). The Final Rule is stillborn and a nullity if Title IX does not prohibit discrimination on the basis of “gender identity.” The Eleventh Circuit has spoken on this point, clearly: Title IX does not address discrimination on the basis of gender identity. Adams v. Sch. Bd. of St. John’s Cnty., 57 F. 4th 791, 812–15 (11th Cir. 2022) (en banc). Frankly, this ends the issue—the new Rule appears to be a dead letter in the Eleventh Circuit.

In State of Kansas v. U.S. Department of Education, (D KS, July 2, 2024), a Kansas federal district court issued a preliminary injunction against enforcement of the new rules in Kansas, Alaska, Utah and Wyoming, saying in part:

... [T]he purpose of Title IX was to protect “biological women from discrimination in education[;] [s]uch purpose makes it difficult to sincerely argue that, at the time of enactment, ‘discrimination on the basis of sex’ included gender identity, sex stereotypes, sexual orientation, or sex characteristics.”... The DoE’s reinterpretation of Title IX to place gender identity on equal footing with (or in some instances arguably stronger footing than) biological sex would subvert Congress’ goals of protecting biological women in education....

... [T]he court finds that the Final Rule involves issues of both vast economic and political significance and therefore involves a major question.... As such, Congress must have given the agency “clear statutory authorization” to promulgate such a Final Rule.....The court finds that Congress did not give such clear statutory authorization to the DoE....

... [T]he Final Rule violates the Spending Clause because it introduces conditions for spending that were not unambiguously clear in Title IX....

The court finds that Plaintiffs have shown that the Final Rule violates he First Amendment by chilling speech through vague and overbroad language.....

 [T]he court finds that the Final Rule is arbitrary and capricious because it offers an implausible explanation for agency action, is a sharp departure from prior action without a reasonable explanation, and failed to consider important interests as discussed herein.

School District's Preferred Name Policy Upheld

In Willey v. Sweetwater County School District No. 1 Board of Trustees, (D WY, June 30, 2023), a Wyoming federal district court, in a 56-page opinion, upheld, over parental objections, most of a school district's policy requiring school district personnel to use a student's preferred/ chosen name or pronoun in verbal, written, and electronic communications. However, the court issued a preliminary injunction barring the school district from (absent a reasonable concern of harm or abuse) precluding teachers from responding to a parent's inquiry, or lying to parents. The court then largely rejected a challenge by a teacher who had religious objections to the policy.  It said that "it is hard to imagine why a public employee's free exercise rights would warrant more protection than their free speech rights." It went on to say that, as to free speech, the policy only compels the teacher to speak pursuant to her official duties and does not restrict her speech as a citizen on matters of public concern.

Wyoming Legislature Passes Abortion Bans; Governor Undecided on Whether to Sign Them

On March 3, the Wyoming legislature gave final passage to two bills outlawing most abortions. HB 152 (full text) outlaws medical and surgical abortions with several exceptions. Exceptions include ectopic pregnancy, treatment of the woman for cancer or another disease where the medical treatment may be fatal to the unborn baby, preventing the death or substantial risk of death of the mother, and incest or sexual assault (which are to be reported to law enforcement). SF 109 (full text) prohibits prescribing or distributing any abortion drug, with exceptions for imminent physical peril that endangers the woman's life or health, and for rape or sexual assault. WyoFile reports that Governor Mark Gordon is still deciding whether or not to veto either or both bills.

UPDATE: Gov. Gordon signed SF 109 and allowed HB 152 to become law without his signature.

Christian Rescue Mission Charged With Religious Discrimination Files Suit

Suit was filed yesterday in a Wyoming federal district court by a Christian rescue mission challenging interpretations by the EEOC and the Wyoming Department of Workforce Services of the employment discrimination provisions of state and federal law.  The complaint (full text) in Rescue Mission v. EEOC, (D WY, filed 9/20/2022), contends that the Rescue Mission's free exercise and free expression rights were violated when the EEOC and WDWS found probable cause that the Mission engaged in religious discrimination in refusing to hire non-Christians as associates in its Thrift Stores.  The agencies took the position that a religious exemption was available only as to "ministerial" positions. The Rescue Mission's complaint alleges in part:

The [Thrift store] position has spiritual qualifications that require candidates to “[m]aintain a personal relationship with Jesus Christ,” “live a Godly life in public and private, thereby providing a Christian role model for those we seek to reach,” and “[a]gree with the WRM Statement of Faith.”

ADF issued a press release announcing the filing of the lawsuit.

Suit Challenges Wyoming's Abortion Ban [UPDATED]

On Monday, suit was filed in a Wyoming state trial court seeking a temporary restraining order as well as preliminary and permanent injunctions against enforcement of the recently enacted Wyoming Criminal Abortion Ban. The Complaint (full text) and supporting Memorandum (full text) in Johnson v. State of Wyoming, (WY Dist. Ct., filed 7/25/2022), contends that the ban violates plaintiffs' fundamental rights protected by the Wyoming Constitution, saying in part:

Plaintiff's fundamental rights which make up the right to be left alone by the government absent a compelling need narrowly drawn include, but are not limited to, their rights to equality, due process, uniform operation of the laws, family composition, privacy and bodily integrity, conscience, and access to health care.

One of the six plaintiffs alleges:

She is a reproductive age woman with immediate plans to marry and have children. Ms. Dow is a life-long practicing conservative Jew who intends to continue practicing her faith, including raising her children in her faith, which requires her to consider abortion as an available health care alternative in the event of pregnancy conditions which threaten her health.

WyoFile reports that a district judge has found good cause exists for an emergency hearing and has set a hearing for today.

UPDATE: The Casper Star Tribune reports that the court issued a 14-day temporary restraining order against enforcement of the law on July 27, the day the law was to go into effect.

"Parody Marriage" Bills Are Newest Attempt To Challenge To Same-Sex Marriage

A bill titled Marriage and Constitution Restoration Act (H 4949) was introduced into the South Carolina legislature last week (Feb. 15). A similar bill with the same title (HB 0167) was received for introduction in the Wyoming legislature on Feb. 14.  Taking a new approach to challenging same-sex marriage, the bills define marriage that does not involve one man and one woman as "parody marriage."  The bills then declare that parody marriages, as well as treating sexual orientation as a suspect class, violate the Establishment Clause because they are part of the religion of Secular Humanism.  They declare, on the other hand, that marriages between one man and one woman are secular because they arise "out of the nature of things" and are "natural, neutral and noncontroversial."   According to the Charleston City Paper, the bills in both states were written with the advice of Chris Sevier. Sevier has gained notice by filing lawsuits seeking to have his marriage to his computer recognized--- suits filed in an attempt to discredit non-traditional marriages. (See prior posting.)

Cert. Filed In Wyoming's Disciplining of Judge For Refusing To Perform Same-Sex Marriages

A petition for certiorari (full text) was filed with the U.S. Supreme Court today in Neely v. Wyoming Commission on Judicial Conduct and Ethics, (cert. filed 8/4/2017).  In the case, the Wyoming Supreme Court held that a judge who, because of religious objections, refuses to perform same-sex marriages violates the Wyoming Code of Judicial Conduct. (See prior posting). ADF issued a press release announcing the filing of the petition for review.

Wyoming Supreme Court Censures Judge Who Refused To Perform Same-Sex Marriages

In a 3-2 opinion yesterday, the Wyoming Supreme Court held that a judge who, because of religious objections, refuses to perform same-sex marriages violates the Wyoming Code of Judicial Conduct.  In Neely v. Wyoming Commission on Judicial Conduct and Ethics, (WY Sup. Ct., March 7, 2017), Justice Fox wrote for the majority, saying in part:

This case is not about same-sex marriage or the reasonableness of religious beliefs.... This case is also not about imposing a religious test on judges. Rather, it is about maintaining the public’s faith in an independent and impartial judiciary that conducts its judicial functions according to the rule of law, independent of outside influences, including religion, and without regard to whether a law is popular or unpopular.

Responding to petitioner's free exercise argument, the majority stated:

Allowing Judge Neely to opt out of same-sex marriages is contrary to the compelling state interest in maintaining an independent and impartial judiciary.

However, rejecting the Commission's recommendation that Judge Neely be removed from office, the majority said:

Weighing these factors, we find that Judge Neely’s misconduct warrants a public censure. We further find that Judge Neely must perform her judicial functions, including performing marriages, with impartiality. She must either commit to performing marriages regardless of the couple’s sexual orientation, or cease performing all marriage ceremonies.

Justice Kautz, joined by Justice Davis, dissented, saying in part:

The majority’s position that Judge Neely violated Rule 1.2 is based on the mistaken conclusion that Judge Neely refused “to follow the law of the land.” As discussed above, the undisputed evidence shows that Judge Neely made no such refusal. She did not state that she would deny marriage to same sex couples, but rather said she would assist such couples in finding someone to perform their civil marriage ceremony. The law does not require Judge Neely personally to perform every marriage.

Focusing on the majority's free exercise argument, the dissenters said in part:

Apparently some individuals might find it offensive that Judge Neely said she would decline to personally perform a same-sex marriage and instead would refer them to someone else. There is no compelling state interest in shielding individuals from taking such an offense.

AP reports on the decision. [Thanks to Gabe Rusk for the lead.]

Avalanche of Same-Sex Marriage Legal Developments

In the last several days there has been an avalanche of legal developments relating to same-sex marriages:

Alaska:  Yesterday in Parnell v. Hamby, the U.S. Supreme Court issued an order denying a stay of a federal district court's decision striking down Alaska's same-sex marriage ban.

Arizona: in Majors v. Horne,(D AZ, Oct. 17, 2014) and Connolly v. Jeanes, (D AZ, Oct. 17, 2014), an Arizona federal district court in two short and substantially identical opinions struck down Arizona's ban on same-sex marriages, citing the 9th Circuit's decision earlier this month in Latta v. Otter striking down bans in Nevada and Idaho. (See prior posting.) State Attorney General Tom Horne announced he would not appeal and sent a letter to the state's 15 county clerks telling them that they may not deny marriage licenses to same-sex couples. Arizona Republic reports on developments.

Wyoming: In Guzzo v. Mead, (D WY, Oct. 17, 2014), a Wyoming federal district court granted a preliminary injunction against Wyoming's ban on same-sex marriage and recognition of same-sex marriages performed elsewhere.  However the court also granted a stay of its injunction until Oct. 23 to allow an appeal to the 10th Circuit or until an earlier date at which the state informs the court that it will not appeal. Governor Matt Mead's office announced that the state will file a notice with the district court that it will not appeal the decision.

Idaho: Two Christian ministers and their for-profit wedding chapel located across the street from the Kootenai County (Idaho) Clerk’s office (which issues marriage licenses) brought suit in an Idaho federal district court to enjoin the city of Coeur d'Alene from enforcing its anti-discrimination ordinance against them. The 63-page complaint (full text) in Knapp v. City of Coeur d'Alene, (D ID, filed Oct. 17, 2014) contends that the Ordinance violates plaintiffs' 1st and 14th Amendment rights as well as their rights under state law. Plaintiffs also filed a motion for a temporary restraining order or preliminary injunction.  ADF issued a press release announcing the filing of the lawsuit.

North Carolina: In North Carolina, the general counsel of the state's Administrative Office of the Courts on Oct. 14 issued a memo (full text) to judges and magistrates stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples. Refusal to do so could lead to suspension, removal or even criminal charges. In response, on Thursday Rockingham County Magistrate Judge John Kallam who has religious objections to performing same-sex marriages resigned.  Alamance County Judge Jim Roberson, who originally suggested that Magistrates with religious objections be excused from performing same-sex ceremonies, issued a statement yesterday saying that magistrates in his county are required to perform ceremonies for same-sex couples. (Qnotes.)  Time Warner Cable News reported on developments.

Federal Government: On Friday, the U.S. Department of Justice announced that the federal government will now recognize same-sex marriages performed in Indiana, Oklahoma, Utah, Virginia, and Wisconsin for purposes of extending federal benefits. The action came after the Supreme Court refused review of Circuit Court decisions affecting those states. Apparently (though there is some slight ambiguity in DOJ's announcement) the federal government will also recognize same-sex marriages performed in Nevada and Idaho after the Supreme Court refused to stay the 9th Circuit's decision as to those states. (See prior posting.)

Court Says ACA Contraceptive Coverage Rules For Religious Non-Profits Do Not Violate RFRA

In Diocese of Cheyenne v. Sebelius, (D WY, My 13, 2014), a Wyoming federal district court denied a preliminary injunction in a challenge to the Affordable Care Act contraceptive coverage mandate rules for religious non-profits. Wyoming Catholic schools and charitable groups object to the opt out self-certification form that results in the third-party administrator of their self-insurance plans furnishing contraceptive coverage directly to the non-profits' employees.  The court concluded that this does not impose a substantial burden on plaintiffs' religious exercise:

It is not Plaintiffs' self-certification that authorizes or obligates the TPA to ensure the objectionable contraceptive coverage; it is the ACA that does so.... Consequently, Plaintiffs' argument that completing the self-certification form requires them to enable access to objectionable contraceptive products and services is inaccurate and unconvincing....

While Plaintiffs hold very strong religious views that the TPA should not provide (or be forced by federal law to provide) contraceptive coverage, the TPA's provision of such coverage cannot be said to be a substantial burden on Plaintiffs'religious exercise....

Through the ACA's accommodation, Plaintiffs have the right to be exempted from participating in, providing, or paying for the costs associated with the objectionable contraceptive coverage based on their sincere religious beliefs, but they have no right to prevent a third party (who does not hold those same religious objections) from meeting the ACA's requirements.

AP reports on the decision. (See prior related posting.)

Suit Challenges Wyoming Ban On Same-Sex Marriage

National Center for Lesbian Rights announced yesterday that it has filed a state court lawsuit challenging Wyoming's statutory ban on same-sex marriage and the state's refusal to recognize same-sex marriages performed elsewhere. Unlike a number of other states, Wyoming's same-sex marriage ban is found only in state statutes, and is not embodied in the state constitution.  Also the state's refusal to recognize same-sex marriages from other jurisdictions is merely a practice that is not supported by specific statutory provisions.   The complaint (full text) in Courage v. Wyoming, (WY Dist. Ct., filed 3/5/2014), alleges that the statutory ban on same-sex marriage and the practice of refusing to recognize same-sex marriages from elsewhere violate the due process and equal protection clauses of the Wyoming state Constitution.  It also alleges that the practice of refusing to recognize out-of-state same sex marriages violates Wyoming statutory provision (Sec. 20-1-111) that provides: "All marriage contracts which are valid by the laws of the country in which contracted are valid in this state." Unlike suits filed recently in other states, this lawsuit does not contain claims that the state's ban on same-sex marriage violates the federal constitution. [Thanks to Alliance Alert for the lead.]