Religion Clause

Sunday, August 07, 2022

Indiana Governor Signs New Law Restricting Abortions

On Friday, Indiana Governor Eric Holcomb signed Senate Enrolled Act 1 (full text). Under the new law, Indiana's former ban on abortions after 20 weeks or viability (whichever is sooner) except for life or substantial health reasons is amended to allow abortions only when necessary to prevent a serious health risk to the pregnant woman or to save her life, or for 20 weeks when the fetus is diagnosed with a fatal abnormality. Abortions may be performed during the first 10 weeks of pregnancy when the result of rape or incest. Parental consent for abortion for a minor is not required in the case of rape or incest. The law does not apply to in vitro fertilizations. ABC News reports on the new law. [Post revised for accuracy.]

Friday, August 05, 2022

5th Circuit Hears Oral Arguments In Challenge To Former Health Care Non-Discrimination Rule

Yesterday, the U.S. 5th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Franciscan Alliance v. Becerra. In the case, a Texas federal district court permanently enjoined enforcing the anti-discrimination provisions of the Affordable Care Act or implementing regulations against Christian health care providers and health plans in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions. (See prior posting.) As explained by Reuters report on the case:

The administration argues that the court order, which applies only to the Christian medical groups behind a 2016 lawsuit, is moot because the rule they originally challenged is no longer in effect.

Thursday, August 04, 2022

Biden Issues Executive Order On Access To Reproductive Health Care Services

Yesterday, President Biden issued an Executive Order on Securing Access to Reproductive and Other Healthcare Services (full text). The White House also issued a Fact Sheet explaining the Executive Order. The Executive Order reads in part:

There have been numerous reports of women denied health- and life-saving emergency care, as providers fearful of legal reprisal delay necessary treatment for patients until their conditions worsen to dangerous levels. There are also reports of women of reproductive age being denied prescription medication at pharmacies — including medication that is used to treat stomach ulcers, lupus, arthritis, and cancer — due to concerns that these medications, some of which can be used in medication abortions, could be used to terminate a pregnancy. Reportedly, a healthcare provider, citing a State law restricting abortion, even temporarily stopped providing emergency contraception.

As it remains the policy of my Administration to support women’s access to reproductive healthcare services, including their ability to travel to seek abortion care in States where it is legal, I am directing my Administration to take further action to protect access to reproductive healthcare services and to address the crisis facing women’s health and public health more broadly.

The Executive Order among other things directs the HHS Secretary to advance access to Medicaid coverage for patients traveling across state lines for medical care. It also directs the Secretary to promote compliance with non-discrimination laws in obtaining medical care.

5th Circuit Upholds Qualified Immunity Defense Of Prison Officials Who Confiscated Hijab

In Taylor v. Nelson, (5th Cir., Aug. 2, 2022), the U.S. 5th Circuit Court of Appeals held that Texas prison authorities who confiscated a female inmate's hijab that exceeded the size permitted by prison policies can claim qualified immunity in a suit for damages against them. The court held that plaintiff failed to identify a clearly established right that officials violated and reasonable officials would not have understood that enforcing the policy on size of hijabs was unconstitutional.

Street Preacher Gets Injunction Against Ordinance Limiting Microphones

In Miller v. City of Excelsior, Minnesota, (D MN, Aug. 2, 2022), a Minnesota federal district court granted a preliminary injunction against enforcement of a city's ordinance on amplified sound and portions of its special-event permit regulation. Plaintiff wanted to preach on sidewalks in the downtown business area. The city ordinance effectively prevents use of amplification on the narrow sidewalks of downtown. Outside the business district, to use amplification audible more than 30 feet away requires a permit with a $150 per day fee and 30 days advance notice. The court said in part:

By prohibiting all unpermitted amplified sound that can be heard at the property line from where the sound emanates in the B-1 and B-2 zoning districts, it is more likely than not that Section 16-105(b)(3) burdens substantially more speech than necessary to further the City’s interests. The ... restriction effectively eliminates amplified sound in the public ways of those districts. In doing so, the ordinance becomes untethered to the City’s legitimate interests in protecting the use and enjoyment of those public areas....

Miller has shown a sufficient likelihood that the City’s 30-day notice requirement, as applied, is not narrowly tailored. Miller is a single speaker, and a 30 day-notice period places a substantial burden on his right to speak spontaneously in his desired public forum....

On this record, it’s more likely than not that a $150 per-day fee is not narrowly tailored to the City’s administrative expenses in hosting Miller’s First Amendment activity.

Fetus Now A Deductible Dependent On Georgia Income Tax Return

Georgia's Living Infants Fairness and Equality (LIFE) Act amends the definition of "natural person" in Georgia's statutes to mean "any human being including an unborn child". Last month, the U.S. 11th Circuit Court of Appeals upheld the constitutionality of the Act. In light of that, Georgia's Department of Revenue has issued Guidance related to House Bill 481, Living Infants and Fairness Equality (LIFE) Act (Aug. 1, 2022), reading in part:

[T]he Department will recognize any unborn child with a detectable human heartbeat, as defined in O.C.G.A. § 1-2-1, as eligible for the Georgia individual income tax dependent exemption. The 11th Circuit’s ruling made HB 481’s amendment to O.C.G.A § 48-7-26(a), adding an unborn child with a detectable heartbeat to the definition of dependent, effective as of the date of the court’s ruling, which was July 20, 2022.

[Thanks to Scott Mange for the lead.]

Wednesday, August 03, 2022

French Constitutional Tribunal Upholds Regulation Of Religious Associations

France's Constitutional Council last month in Union of Diocesan Associations of France and others (Conseil constitutionnel, July 22, 2022) upheld the constitutionality of several provisions of law governing religious institutions in France. It upheld the requirement that a religious organization must register with a government official in order to enjoy benefits available specifically to a religious association. It found that this did not infringe freedom of association, and also concluded in part:

[The provisions] have neither the purpose nor the effect of carrying the recognition of a religion by the Republic or of hindering the free exercise of religion.... Accordingly, the contested provisions, which do not deprive the free exercise of worship of legal guarantees, do not infringe the principle of secularism.

The court also rejected an equal protection challenge to a provision limiting religious organizations to realizing no more than 50% of their revenues from apartment buildings they own. Finally it upheld provisions allowing the state to require a religious association to conform its stated purposes to its actual activities and requirements; for reporting of a religious association's places of worship; and, when requested, to provide a government official with financial information including amounts used for religious activities and amounts of foreign financing. However, the court cautioned:

While such obligations are necessary and suited to the objective pursued by the legislator, it will nevertheless be up to the regulatory power to ensure, by setting the specific methods for implementing these obligations, that the constitutional principles of freedom of action are respected.

The court issued a press release announcing the decision. Law & Religion UK also reports on the decision.

Massachusetts Law Exonerates Last Convicted Witch

Section 105 of the Massachusetts FY23 Budget Bill signed by Governor Charlie Baker on July 28 exonerates Elizabeth Johnson, Jr., the last Massachusetts resident who was legally classified as a witch. As reported by Courthouse News Service, Johnson is one of 30 people convicted in Salem witch trials in 1693. All the others have previously been exonerated by the legislature. The exoneration was pushed by an eighth-grade civic teacher in North Andover, Massachusetts where Johnson had lived.

Clergy Sue Challenging Florida's Abortion Restrictions

The Washington Post reports that in Florida, seven members of the clergy-- Christian, Jewish, Unitarian-Universalist and Buddhist-- have filed lawsuits contending that Florida's 15-week abortion ban violates their free exercise, free speech and Establishment Clause rights. Typical of the lawsuits is the complaint (full text) in Hafner v. State of Florida, (FL Cir. Ct., filed 8/1/2022), filed by a pastor of the United Church of Christ. It alleges in part:

59. The Act establishes as the law of the State of Florida, a particular and narrow religious view about abortion and when “life” begins. This view is contrary to the religious beliefs of Plaintiff and the UCC, which does not necessarily make a claim regarding when “life” begins, but instead, centers on the mother’s right to have a choice, oversee her own body, and make her own decisions.

60. The Act further provides for no exceptions for the psychological health of the mother or family, non-fatal fetal abnormalities, or victims of incest, rape, or trafficking, which are all circumstances in which the UCC would, amongst other circumstances, support a girl or woman’s decision to have an abortion before or after fifteen weeks....

65. Plaintiff’s beliefs are consistent with the UCC principles set forth above and, as a result, the Act substantially burdens the exercise of her religious faith because it hampers her ability to counsel congregants and speak freely on reproductive rights and issues and burdens her congregants’ ability to seek counsel from their religious leader.

Here is the complaint in a similar suit filed by three rabbis (Pomerantz v. State of Florida, (FL Cir. Ct., filed 8/1/2022).

UPDATE: Here is the complaint in Chotso v. State of Florida, (FL Cir. Ct., filed 8/1/2022), filed by a Buddhist Lama.

Tuesday, August 02, 2022

Wisconsin Violated Archdiocese Rights In Excluding Clergy As COVID Precaution After Other Outsiders Were Allowed In

As previously reported, last June a Wisconsin trial court issued a Provisional Writ of Mandamus ordering the Wisconsin prison system to allow Catholic clergy the opportunity, at least once a week, to conduct in-person religious services in state correctional institutions. Access for clergy is mandated by Wis. Stat. 301.33(1). The state had suspended visits beginning in March 2020 to minimize the spread of COVID. Now, in Archdiocese of Milwaukee v. Wisconsin Department of Corrections, (WI Cir. Ct., July 14, 2022), the same court issued a declaratory judgment and permanent injunction, concluding that once the prison system allowed some external visitors to enter correctional institutions, it was required to honor the clergy's statutory privilege to do so, and refusal to do so violated plaintiff's free exercise rights under the Wisconsin Constitution. CBN News reports on the decision.

Monday, August 01, 2022

Michigan's Pre-Roe Abortion Ban May Now Be Enforceable By County Prosecutors

As previously reported, in May Michigan Court of Claims issued a preliminary injunction barring enforcement of the state's 1931 pre-Roe abortion ban while a challenge to that law under the Michigan state constitution is being litigated. In response, two county prosecutors and two anti-abortion organizations filed a complaint with the state Court of Appeals seeking an Order of Superintending Control that would require the state Court of Claims to dismiss the case for lack of jurisdiction. (See prior posting.) Today in In re Jarzynka, (MI App., Aug. 1, 2022), the Michigan Court of Appeals dismissed that suit for lack of standing. It held that the anti-abortion groups have not suffered a sufficient injury by the Court of Claims decision to give them standing to challenge it. As to the prosecuting attorneys, the Court of Appeals held that the Court of Claims injunction applies only to the state Attorney General's office and does not apply to county prosecutors. As reported by the Detroit News, this holding would seem to now allow county prosecutors to file criminal charges under the 1931 statute against abortion providers. State Attorney General Dana Nessel says that Democratic prosecuting attorneys have committed to not enforcing the 1931 ban.

UPDATE: AP reports that just hours after the Court of Appeals decision, an Oakland County judge, at the request of Michigan Governor Gretchen Whitmer, issued a temporary restraining order against prosecutors in counties with abortion providers barring enforcement of the 1931 law. He scheduled a hearing for Wednesday.

Michigan Supreme Court: State's Public Accommodation Law Bars Sexual Orientation Discrimination

In Rouch World, LLC v. Department of Civil Rights, (MI Sup. Ct., July 28, 2022), the Michigan Supreme Court, in a 5-2 decision, held that the Elliott-Larsen Civil Rights Act's ban on sex discrimination on the basis of sex includes discrimination based on sexual orientation. The case was brought in the state Court of Claims by two businesses which, on religious grounds, refused to serve LGBT clients. One of the plaintiffs had refused to host a same-sex wedding at its event center. The other had refused to provide electrolysis hair-removal services to a transgender woman. The Court of Claims, bound by higher state court precedent, held that the ELCRA did not cover sexual orientation discrimination. However, lacking state court precedent on its application to transgender discrimination, the Court of Claims held that the ECLRA does ban discrimination on the basis of gender identity. Only the holding regarding sexual orientation was appealed to the state Supreme Court.

Justice Clement's majority Supreme Court opinion said in part:

[W]e conclude that discrimination on the basis of sexual orientation necessarily involves discrimination because of sex in violation of the ELCRA. In so doing, we find persuasive Bostock’s application of Title VII’s but-for standard. While we are encouraged but not bound to consider persuasive Title VII federal case law, ... we find that Bostock offers a straightforward analysis of the plain meaning of analogous statutory language and we agree with its reasoning....

Plaintiff Rouch World, along with the dissent, also criticizes this conclusion as inconsistent with the intent of the 1976 Legislature that enacted the ELCRA. It argues that the ELCRA’s legislative history demonstrates that the Legislature intentionally chose to exclude protections from discrimination based on sexual orientation, both at the time of its enactment by declining to include the specific language and repeatedly thereafter by rejecting proposed amendments that would have added the specific language. However, the legislative history of a statute is relevant to the statute’s meaning only where the statute is ambiguous.... When the statute’s language is clear, as it is here, we rely on that plain language as the best evidence of its meaning.

Judge Zahra, dissenting, said in part:

I take no issue with the merits of the policy adopted today by a majority of this Court. I also harbor no doubt that my colleagues in the majority are acting in good faith, with pure hearts and the best of intentions.

Yet ... this Court’s duty is to say what the law is, not what it thinks the law ought to be.

The majority opinion declares that “because of . . . sex” means something that nobody in 1976 thought it meant.... [T]he majority opinion also declares that phrase to encompass something that the enacting Legislature specifically and explicitly considered including but ultimately chose not to embrace.... If we are to be faithful to our constitutional mandate to say what the law is, we simply cannot pretend that the ELCRA says something that it does not say.

Justice Viviano filed a dissenting opinion which says in part:

The relevant statutory provision, MCL 37.2302(a), prohibits certain discriminatory actions taken “because of . . . sex,” among other things. Properly interpreted, this requires that the defendant maintain some prejudice, bias, animus, or belief about “sex” or the other characteristics protected by the statute....

[D]iscrimination on the basis of one’s sexual orientation is not discrimination because of some prejudice, bias, animus, or belief about the male sex or the female sex.

Bridge Michigan reports on the decision.

Sunday, July 31, 2022

Class Action Settlement Reached In Religious Challenge To Vaccine Mandate

A 24-page class action Settlement Agreement (full text) was filed last week in an Illinois federal district court in Doe 1 v. NorthShore University HealthSystem, (ND IL, filed 7/292/2022). The suit was brought on behalf of approximately 523 employees who requested, but were denied, a religious exemption or accommodation from the hospital system's COVID vaccination mandate. If the settlement is approved by the court, the hospital system will pay $10,330,500 in damages. Most former employees will receive $25,000 each. $2,061,500 of the settlement amount will go to plaintiffs' counsel. Liberty Counsel issued a press release announcing the settlement and National Catholic Register reported on the settlement agreement.

Friday, July 29, 2022

7th Circuit: Ministerial Exception Doctrine Applies To State Tort Claims

In Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., (7th Cir., July 28, 2022), the U.S. 7th Circuit Court of Appeals held that the the Co-Director of Guidance at a Catholic high school was a "minister" for purposes of the ministerial exception doctrine. It went on to hold that the ministerial exception doctrine applies to state tort claims against the Archdiocese for Interference with Contractual Relationship and Intentional Interference with Employment Relationship. In the case, the school refused to renew its contract with Lynn Starkey, who had been employed by the school for nearly forty years, after the school learned of Starkey's same-sex marriage. Starkey sued both the school and the Archdiocese. Summarizing its holding, the court said in part:

Starkey was a minister because she was entrusted with communicating the Catholic faith to the school’s students and guiding the school’s religious mission. The ministerial exception bars all her claims, federal and state.

Becket issued a press release discussing the decision.

Interlocutory Appeal Available On Charitable Immunity Ruling, But Not On Church Autonomy Holding

In Doe v. Roman Catholic Bishop of Springfield, (MA Sup. Jud. Ct., July 28, 2022), the Massachusetts Supreme Judicial Court held that an defendant cannot not take an interlocutory appeal from the trial court's refusal to dismiss portions of a lawsuit on church autonomy grounds. The suit alleged that plaintiff, in the 1960's when he served as an altar boy, was sexually abused by multiple church officials including a parish priest, a pastor and the bishop. The court said in part:

The [ecclesiastical abstention] rule's central purpose is to address the historic, philosophical concern with government interference in religious affairs by maintaining the constitutional separation between religion and government; at least originally, another purpose was to prevent civil courts from addressing matters in which they lack competence....

Both these concerns can be addressed on appeal after final judgment if a lower court inadvertently rules on a religious issue.

The court held, however, that an interlocutory appeal is available from the trial court's ruling on charitable immunity, saying in part:

Unlike ecclesiastical abstention, then, the purpose of common-law charitable immunity was to protect certain parties "from the burden of litigation and trial."

At common law, charitable immunity extended only to wrongdoing "committed in the course of activities carried on to accomplish charitable activities." ... The abuse allegedly carried out by Weldon and other church leaders was not, and could not be, related in any way to a charitable mission....

However, one count should have been dismissed.... Count six alleges that the Roman Catholic Bishop of Springfield negligently hired and supervised the church leaders who allegedly assaulted the plaintiff. A negligent supervision claim is exactly the sort of allegation against which common-law charitable immunity was meant to protect.

Ministerial Exception Doctrine Requires Dismissal Of Race and National Origin Discrimination Claim

In Chris v. Kang, (D OR, July 26, 2022), an Oregon federal district court dismissed a claim of race and national origin discrimination brought by plaintiff who was not hired as the Worship Pastor of Village Baptist Church. Plaintiff claimed he was not hired because he was not a native English speaker, was said to be unfamiliar with American culture and to speak with an accent. The court held that the ministerial exception doctrine applies to both Title VII and state employment discrimination claims, insulating from judicial review the church's decisions on who should be its ministers.

Christian School Challenges USDA's Interpretation Of Sex Discrimination Under Title IX

A Christian school which enrolls 56 students in grades Pre-K to 8 filed suit this week in a Florida federal district court challenging a U.S. Department of Agriculture Departmental Regulation defining sex discrimination as including discrimination on the basis of sexual orientation or gender identity. The school is covered by the regulation because it participates in Title IX federal meal programs for its low-income students. The complaint (full text) in Faith Action Ministry Alliance, Inc. v. Fried, (MD FL, filed 7/27/2022) alleges in part:

9. If Grant Park Christian Academy does not comply with the new school lunch mandate, it will lose lunch funding for its children.

10. But if Grant Park Christian Academy complies with the new school lunch mandate, it will suffer harms to its educational mission, free speech, and religious exercise. It will no longer be able to maintain sex-separated restrooms for boys and girls based on their biological differences. It will no longer be able to maintain sex-specific dress code and uniform policies, in which, for example, only female students are permitted to wear skorts. It will no longer be able to draw its workforce from among those who share and live out its religious convictions. It will no longer be able to refrain from using pronouns that do not correspond to biological sex.

The complaint concedes that there is an exemption in Title IX for religious organizations where compliance would be inconsistent with their religious tenets. However, plaintiff objects to the requirement that it submit an exemption request for USDA approval, saying in part:

This exemption should apply by operation of statute, but USDA interprets Title IX to require religious schools to submit exemption requests.... These requests do not guarantee that schools have been, or even will be, exempt—but submitting requests do subject schools to a name-and-shame harassment campaign from activists.

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

UPDATE: In an August 5 court filing, the parties informed the court:

Today ... state officials informed Grant Park Christian Academy that the school would be allowed to continue participating in the National School Lunch Program.... In addition, attorneys for the United States Department of Justice ... acknowledged that Grant Park Christian Academy qualifies for a religious exemption under Title IX of the Education Amendments of 1972 and issued a written letter confirming the school’s religious exemption....

Thursday, July 28, 2022

Christian University Sues To Stop Investigation of LGBTQ Discrimination

Suit was filed yesterday in a Washington federal district court by a Christian university challenging the state of Washington's investigation of whether the university has discriminated in hiring on the basis of sexual orientation. The complaint (full text) in Seattle Pacific University v. Ferguson, (WD WA, filed 7/27/2022), alleges in part:

4. As part of its religious commitment, Seattle Pacific expects its faculty, staff and leadership to agree with the University’s statement of faith and to live out that faith as a model for others, including by living according to the University’s religious teachings on marriage. Seattle Pacific relies on its faculty, staff, and leadership to provide a Christian higher education by integrating faith and learning.

5. The U.S. Constitution recognizes and protects the right of Seattle Pacific University to decide matters of faith and doctrine, to hire employees who share its religious beliefs, and to select and retain ministers free from government interference.

6. Defendant does not recognize that right. Despite the Constitution’s clear prohibition on interference in matters of church governance, including entangling investigations of religious employment decisions and the selection of ministers, Washington’s attorney general has launched a probe that does just that.

Courthouse News Service reports on the lawsuit.

8th Circuit: Christian School Lacks Standing To Challenge HUD Memo On Sex Discrimination In Housing

In The School of the Ozarks, Inc. v. Biden, (8th Cir., July 27, 2022), the U.S. 8th Circuit Court of Appeals held in a 2-1 decision that a Christian college lacks standing to challenge a memorandum issued by an acting assistant secretary of the U.S. Department of Housing and Urban Development. The memorandum directs the HUD office that enforces the Fair Housing Act to investigate all discrimination complaints, including discrimination on the basis of sexual orientation or gender identity. The school's religiously-inspired Code of Conduct specifies that biological sex determines a person's gender. The school maintains single-sex residence halls and does not permit transgender individuals to live in residence halls that do not match their biological sex. The majority said in part:

The Memorandum does not, as the College presupposes, require that HUD reach the specific enforcement decision that the College’s current housing policies violate federal law. The Memorandum, for example, says nothing of how the Religious Freedom Restoration Act or the Free Exercise Clause may limit enforcement of the Fair Housing Act’s prohibition on sex discrimination as applied to the College....

The College’s alleged injury also lacks imminence because it is speculative that HUD will file a charge of discrimination against the College in the first place.... [T]he agency has never filed such a charge against a college for sex discrimination based on a housing policy that is specifically exempted from the prohibition on sex discrimination in education under Title IX....

Judge Grasz dissented, arguing in part that the school has already suffered an injury-- the right to notice and comment on proposed rules. He said: "In my view, HUD’s Memorandum is an interpretative rule."