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.

Maine's COVID Vaccine Mandate, Without Religious Exemption, Is Upheld

 In Lowe v. Mills, (D ME, Aug. 18, 2022), a Maine federal district court rejected challenges by seven healthcare workers to Maine's COVID vaccination requirement for healthcare workers. No religious exemption is available; medical exemptions are available. The court rejected plaintiffs Title VII religious discrimination claim, saying in part:

[I]f the Hospital Defendants had granted the sole accommodation sought by the Plaintiffs, it would result in an undue hardship by subjecting the Hospital Defendants to the imposition of a fine and the “immediat[e] suspension of a license.”

The court also rejected plaintiffs' 1st Amendment Free Exercise claims, saying in part:

In the context of the COVID-19 vaccine mandate, the medical exemption is rightly viewed as an essential facet of the vaccine’s core purpose of protecting the health of patients and healthcare workers, including those who, for bona fide medical reasons, cannot be safely vaccinated. In addition, the vaccine mandate places an equal burden on all secular beliefs unrelated to protecting public health—for example, philosophical or politically-based objections to state-mandated vaccination requirements—to the same extent that it burdens religious beliefs. Thus, the medical exemption available as to all mandatory vaccines required by Maine law does not reflect a value judgment unfairly favoring secular interests over religious interests. As an integral part of the vaccine requirement itself, the medical exemption for healthcare workers does not undermine the vaccine mandate’s general applicability.

Commission Recommends Changes In Australian State's Anti-Discrimination Laws

On Aug. 16, the Law Reform Commission of Western Australia sent to Parliament its 297-page Final Report on its Review of the Equal Opportunity Act 1984 (WA) (full text). The Report makes 163 recommendations for changes in Western Australia's anti-discrimination laws. In connection with the Act's ban on discrimination based on religious conviction, the Report's Recommendation 51 provides:

Religious conviction should be defined in the Act. It should be defined as:
• having a religious conviction, belief, opinion or affiliation;
• engaging in religious activity;
• appearance or dress required by, or symbolic of, the person’s religious conviction;
• the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples;
• engaging in the cultural heritage and distinctive spiritual practices, observances, beliefs and teachings of Aboriginal and Torres Strait Islander peoples;
• not having a religious conviction, belief, opinion or affiliation; and
• not engaging in religious activity.

The word religious should not be defined.

The Report also makes recommendations relating to discrimination on the basis of gender identity, sex characteristics and sexual orientation. It makes extensive recommendations on religious exceptions to anti-discrimination rules.

Christian Schools Australia issued a press release criticizing the Report.

Court Reverses Sanctions Imposed On Church For Violating COVID Orders

In People v. Calvary Chapel, San Jose, (CA App., Aug. 15, 2022), a California state appellate court annulled contempt orders imposed by trial courts and reversed trial court imposition of monetary sanctions which resulted from a church's refusal to comply with state COVID public health orders. The order restricted the holding and conduct of public gatherings. The court said in part:

[W]e conclude that the temporary restraining orders and preliminary injunctions are facially unconstitutional pursuant to the recent guidance of the United States Supreme Court regarding the First Amendment’s protection of the free exercise of religion in the context of public health orders that impact religious practice (see, e.g., Tandon v. Newsom (2021) ....) As the underlying orders which Calvary Chapel violated are void and unenforceable, we will annul the orders of contempt in their entirety and reverse the orders to pay monetary sanctions.

Advocates for Faith & Freedom issued a press release announcing the decision and reporting that Santa Clara County is still attempting to enforce $2.8 million in fines imposed for violation of county health orders.

HRSA Wrongly Eliminated Required Insurance Coverage For Natural Family Planning Methods

 In Tice-Harouff v. Johnson, (ED TX, Aug. 12, 2022), a Texas federal district court held that changes in the language of federal regulations specifying the required cost-free contraceptive coverage by qualified health plans eliminated coverage for fertility-awareness based methods. These natural family planning methods are used, among others, by women with religious objections to use of contraceptives. The court held that the Health Resources and Services Administration violated the Notice and Comment requirement of the Administrative Procedure Act in adopting the amendments and that the amendments were arbitrary and capricious. The court rejected the government's claim that the change in language had not eliminated coverage for such methods. ADF issued a press release announcing the decision.

Preliminary Relief Denied In Challenge To Georgia Anti-Abortion Law

In Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., Aug. 15, 2022), a Georgia state trial court refused to grant a preliminary injunction to prevent enforcement of Georgia's LIFE Act while its constitutionality is being litigated. The Act, with limited exceptions, bars abortions once a heartbeat is detectable. The court held that Georgia's constitutional provision that waives sovereign immunity for an injunction after the award of declaratory relief does not waive sovereign immunity for a preliminary injunction before declaratory relief has been granted. The Georgia ACLU issued a press release discussing the decision.

USDA Clarifies Title IX Religious Institution Exemption

On Aug. 12, the Department of Agriculture issued a Guidance (full text) clarifying that a Title IX exemption is available for religious educational institutions if there is a conflict between Title IX and a school’s governing religious tenets. The Guidance provides in part:

USDA regulations do not require a religious educational institution to submit a written request for a Title IX exemption in order to claim that exemption.

If, however, a religious educational institution wishes to seek USDA recognition of their religious exemption, it may do so through a written request under USDA regulations....

The Guidance comes after litigation by a Christian school in Florida that objected to submitting an exemption request in order to participate in the USDA's school lunch program and maintain its policies on gender identity. (See prior posting.)  ADF issued a press release on the USDA's action.

Recent Articles of Interest

From SSRN:

• Mark Movsesian, The New Thoreaus, (Loyola University Chicago Law Journal, Forthcoming).
• Jake Linford, Justin Sevier & Allyson Willis, Trademark Tarnishmyths (August 6, 2022).
• Dov Fox, Medical Disobedience, (Harvard Law Review, Vol. 136, Forthcoming).
• Daniel O. Conkle, Religion, Law, and the Constitution, Second Edition, (Foundation Press, 2022).
• Kerri Froc, A Law in Rupture: Section 28, Equal Rights, and the Constitutionality of Québec's Bill 21 Religious Symbols Ban, (July 24, 2022).
• Frank Buono, A Compendium of Federal Authorities (Executive – Legislative - Judicial) Governing American Indian Sacred Sites on Federal Lands, (July 12, 2022).
• Shahbaz Ahmad Cheema, Rights of the Child in Islam: Theory, Mechanisms, Practices and Convention on the Rights of the Child – A Book Review, (LUMS Law Journal (2022) Vol. 9, pp. 108-112).

From SSRN (Abortion rights):

• Adam Richardson, The Originalist Case for Why the Florida Constitution's Right of Privacy Protects the Right to an Abortion, (August 10, 2022).
• Reva B. Siegel, Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance, (Texas Law Review, Forthcoming).

From SmartCILP and elsewhere:

• Ido Shahar & Karin Carmit Yefet, Kadijustiz in the Ecclesiastical Courts: Naming, Blaming, Reclaiming,  56 Law & Society Review 53-77 (2022).
• Journal of Law and Religion, Volume 37, Issue 2 (May 2022).

Louisiana Supreme Court Refuses Stay Of Abortion Ban During Appeals

In an Order (full text) signed by four of the seven Justices on the Louisiana Supreme Court in June Medical Services, LLC v. Landry, (LA Sup. Ct., Aug. 11, 2022), the court denied a petition by abortion providers seeking to reinstate a trial court's injunction on enforcing Louisiana's abortion ban while appeals are being pursued.  As explained by The Advocate, the trial court had found that the law was likely unconstitutionally vague.  A state appellate court ordered the trial court to suspend its ruling, and now the Supreme Court has refused to overturn that decision.

Idaho Supreme Court Refuses To Stop Effectiveness Of Abortion Bans

In Planned Parenthood Great Northwest v. State of Idaho,(ID Sup. Ct., Aug. 12, 2022), the Idaho Supreme Court, in a 3-2 decision, refused to issue a preliminary injunction to prevent enforcement while litigation is pending of a statute triggered by the overruling of Roe v. Wade imposing a near-total abortion ban, as well as of a six-week abortion ban. The court also vacated a preliminary stay it had previously issued barring enforcement of a law that creates civil liability in suits against persons performing abortions after a fetal heartbeat is detectable. Plaintiffs contend that the statutes violate various provisions of the Idaho constitution. The majority concluded that petitioners had not shown a substantial likelihood of success or violation of a clear legal right as to either of the statutes.

Justice Stegner, joined by Justice Zahn, dissented contending that it is sufficient that petitioners showed irreparable harm if a stay in not granted; they do not need to also show a likelihood of success. The dissent said in part:

The State and the Legislature’s only argument that irreparable harm will not result is that the Idaho Constitution does not protect the right to an abortion. This argument fails because it is premised on a decision we have not yet made.

Fox News reports on the decision.

Justice Department Initiates Investigation Of Sex Abuse By Southern Baptist Clergy And Executives

Baptist Press reported yesterday that the Justice Department has informed the Executive Committee of the Southern Baptist Convention that it has initiated an investigation that will involve multiple SBC entities. This comes after an independent investigation (full text of report) of sexual abuse allegations against clergy and Executive Committee members commissioned by SBC. A Release by the SBC Executive Committee (quoted in full in the Baptist Press report) says in part:

Individually and collectively each SBC entity is resolved to fully and completely cooperate with the investigation. While we continue to grieve and lament past mistakes related to sexual abuse, current leaders across the SBC have demonstrated a firm conviction to address those issues of the past and are implementing measures to ensure they are never repeated in the future. 

Data On Canadian Hate Crimes Released

On Aug. 2, Statistics Canada released Police-reported crime statistics in Canada, 2021. One section (Text Box 5) focuses on hate crimes and says in part:

The number of police-reported hate crimes in Canada increased by 27% in 2021, rising from 2,646 incidents to 3,360.... From 2020 to 2021, increases were noted in the number of police-reported hate crimes targeting religion (+354 incidents, +67%).... 

Police-reported hate crimes targeting the Jewish (+47%), Muslim (+71%) and Catholic (+260%) religions were up. The increase in hate crimes targeting the Muslim population follows a similar decrease in 2020; the increase also occurred in the same year as an attack in London, Ontario which targeted a Muslim family and resulted in four homicides and one attempted homicide.... In 2021, there were discoveries of unmarked graves on former residential school sites. Following these discoveries, there were reports of hate incidents targeting the Indigenous population as well as churches and other religious institutions....

JNS reports on the data.

Suspension Of Attorney Did Not Violate Her Free Exercise Rights

In In re Kelly, (DE Sup. Ct., Aug. 10, 2022), the Delaware Supreme Court accepted the report of its Board on Professional Responsibility and involuntarily transferred a state bar member to disability inactive status. The attorney's incoherent court filings, many containing religious references, led to the proceedings to move respondent to inactive status.  Respondent claimed, among other things, that the proceedings violated her free exercise rights. The court said in part:

It is the unfocused, irrelevant, and incoherent nature of many of Kelly’s submissions that led to this proceeding, not her religious or political beliefs as she contends. Kelly’s references to her religious and political views throughout her submissions do not shield her from scrutiny concerning her competency to practice law.

9th Circuit: Prof Gets Qualified Immunity In Suit Challenging His Course Presentation Of Islam

In Sabra v. Maricopa County Community College District,(9th Cir., Aug. 10, 2022), the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a Community College professor is entitled to qualified immunity in a suit against him claiming that his online module on Islamic terrorism in a World Politics course violated plaintiffs' Establishment Clause and Free Exercise rights. Plaintiffs claimed the module's primary message was disapproval of Islam and that the end-of-module quiz forced a Muslim student to disavow his religion by choosing answers reflecting a radical interpretation of Islam. The majority held that there is no case law "clearly establishing" that defendants' actions violated the First Amendment. It also concluded that plaintiffs had abandoned their municipal liability claim against the College on appeal.

Judge VanDyke filed a concurring opinion saying in part that "The only thing clearly established about ... [Plaintiffs' free exercise] claim is that nothing about it is clearly established."

Judge Bress dissented, saying in part:

I would have met Sabra’s Free Exercise claim on the merits rather than rely on legally infirm alternative grounds for affirmance. Sabra’s allegations are troubling, concern matters of sincerely held religious conviction, and warrant further judicial inquiry.

9th Circuit Hears Oral Arguments In Suit By Fellowship Of Christian Athletes On High School Rules

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in Fellowship of Christian Athletes v. San Jose Unified School District Board of Education. In the case, a California federal district court upheld a high school's non-discrimination policy for recognized student groups that precluded Fellowship of Christian Athletes from requiring its leaders to agree with and live in accordance with the group's Christian beliefs. (See prior posting.)

Subsidized Housing Family Size Limit Did Not Violate Rights Of Orthodox Jewish Family

In Katz v. New York City Housing Preservation & Development, (SD NY, Aug. 8, 2022), a New York federal district court rejected Free Exercise and Affordable Housing Act claims brought by an Orthodox Jewish family whose applications for an affordable housing unit were denied  because their family size exceeded the apartments' maximum occupancy limit. Plaintiffs claim that their religious beliefs require them to have a large family.  As to the Free Exercise claim, the court said in part:

The Katzes do not claim that Defendants’ policies disfavor acts only religious in nature or that Defendants otherwise showed overt animus in denying their applications or later appeals. Nor do they claim that the maximum occupancy limit is not generally applicable. They thus ask the Court to apply rational-basis review to analyze the occupancy restrictions....

Here, the City has a legitimate state interest in preventing overcrowding in subsidized apartment units. And limiting a unit’s occupancy to two people per bedroom is rationally related to that legitimate interest by setting a numerical cap on each apartment....

Rejecting the Fair Housing Act claim, the court said in part:

Here, the Katzes have failed to plausibly allege that the policies have created a disproportionate effect on Orthodox Jews because they never allege that the occupancy limits have or will result in an underrepresentation of Orthodox Jews in affordable housing lotteries in New York City. That is because at no point does the Complaint compare Orthodox Jews applying for New York City affordable housing lotteries to similarly situated individuals.

Anti-Muslim Facebook Postings Are Subject To Pickering Balancing Test

In Hernandez v. City of Phoenix, (9th Cir., Aug. 5, 2022), the U.S. 9th Circuit Court of Appeals remanded to the district court a case in which the Phoenix police department had disciplined an employee for social media posts he made disparaging Muslims.  The district court had held that the posts did not address matters of public concern and so were not subject to the balancing test of Pickering v. Board of Education  that protects as free speech some statements by public employees which are objectionable to the public employer. The Court of Appeals disagreed, saying in part:

It is true that each of Hernandez’s posts expressed hostility toward, and sought to denigrate or mock, a major religious faith and its adherents. The Supreme Court has made clear, however, that “[t]he inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”...

Having concluded that Hernandez’s Facebook posts constitute speech on matters of public concern at the first step of the Pickering balancing test, we would ordinarily proceed to the next step and assess whether the Phoenix Police Department has shown an adequate justification for punishing Hernandez’s otherwise protected speech. We cannot do so here, however, because the district court dismissed Hernandez’s First Amendment retaliation claim at the motion-to-dismiss stage.... Although it seems likely that Hernandez’s posts could impede the performance of his job duties and interfere with the Phoenix Police Department’s ability to effectively carry out its mission, no evidence of the actual or potential disruptive impact caused by Hernandez’s posts is properly before us at this stage of the proceedings....

In remanding the case, we do not mean to suggest that the Department will face a particularly onerous burden to justify disciplining Hernandez for his posts, given the comparatively low value of his speech.

Reuters reports on the decision.

Preliminary Injunction Bars Indiana Enforcement Of Ban On Transgender Girl Playing On Girls' Baseball Team

A recently enacted Indiana statute prohibits transgender girls from playing on girls' athletic teams sponsored by public schools or certain private schools.  In A.M. v. Indianapolis Public Schools, (SD IN, July 26, 2022), an Indiana federal district court, relying on Title IX, issued a preliminary injunction barring school officials from applying the statute to prevent plaintiff, a transgender girl entering the 5th grade, from playing on the girl's softball team. The court said in part:

[N]otably, § 20-33-13-4 does not prohibit all transgender athletes from playing with the team of the sex with which they identify – it only prohibits transgender females from doing so. The singling out of transgender females is unequivocally discrimination on the basis of sex, regardless of the policy argument as to why that choice was made. The Court finds that A.M. has established a strong likelihood that she will succeed on the merits of her Title IX claim.

The Hill reports on the decision.

Recent Articles of Interest

From SSRN:

• Richard H. Weisberg, Robert Cover's Love of Stories: Ruminations on his Wanting to Discuss The Brothers Karamazov with Me Across Five Conversations During the Last Five Years of His Life, with an Application to the Chauvin Murder Trial of 2021, (Touro Law Review, Vol. 37, 2022).
• S. Ernie Walton, In Loco Parentis and Constitutional Rights - Can They Coexist in Public Schools?, (August 3, 2022).
• Hila Keren, Market Humiliation, (August 2, 2022).
• Kaiponanea T. Matsumura, Beyond Polygamy, (Iowa Law Review, Vol. 107, No. 5, 2022).
• Michael Nesbitt, Leah West & Amarnath Amarasingam, The Illusive Motive Requirement In Canada's Terrorism Offences: Defining and Distinguishing Ideology, Religion, and Politics, (Forthcoming 2023, Osgoode Hall Law Journal 60:3).
• Christopher Ryan, An Historical and Empirical Analysis of the Cy-Près Doctrine, (48 ACTEC L. J. __ (Forthcoming 2023)).

From SSRN (Constitutional Interpretation):

• John Witte, Back to the Sources? What’s Clear and Not So Clear About the Original Intent of the First Amendment, (47 BYU L. Rev. 1303 (2022)).
• Noah Garver, The Institutional Natural Law Approach to Constitutional Interpretation, (August 1, 2022).
• R. George Wright, On the Logic of History and Tradition in Constitutional Rights Cases, (August 2, 2022).

From SSRN (Free Speech):

• Kristine L. Bowman & Katharine Gelber, Responding to Hate Speech: Counterspeech and the University, (28 Virginia Journal of Social Policy and the Law 248 (2021)).
• G. Alex Sinha, The End of Government Speech,(August 1, 2022).

From SSRN (LGBTQ Issues):

• Dominic Bayer, Child Gender Transition Bans and the Constitution: The Equal Protection Clause and Bostock, (Regent University Law Review, Forthcoming).
• Katie R. Eyer, Transgender Constitutional Law, (July 26, 2022).
• Robin S. Maril, Queer Rights After Dobbs v. Jackson Women’s Health Organization, (August 1, 2022).

From SSRN (Abortion Rights):

• Bruce Ledewitz, Dobbs Is Not a Religion Case, (Canopy Forum, August 1, 2022).
• Sherif Girgis, Update: Why the Equal-Protection Case for Abortion Rights Rises or Falls with Roe's Rationale, (Harvard Journal of Law and Public Policy, Vol. 17, No. Per Curiam, 2022).
• Gray Sutton, The Case Against Reason-Based Abortion Bans, (University of Chicago Legal Forum, Vol. Forthcoming 2023).

From SSRN (Judaism/ Islam):

• Michael Lewyn, Bringing Judaism Downtown: A Smart Growth Policy for Orthodox Jews, (University of Baltimore Law Review, Vol. 51, No. 37, 2021).
• Saadiya Suleman, Menstruation and Islam: Analysing the Impurity in Justice Nariman’s Sabrimala Opinion, (1(1) Journal of Law and Religious Affairs 41 (2021)).
• Zalman Rothschild, Sovereignty, Reason, and Will: Carl Schmitt and Hasidic Legal Thought, (Journal of Law and Religion, Vol. 37, No. 2, 2022).

No Church Autonomy Defense To Catholic Organization's Sexual Orientation Discrimination

In Doe v. Catholic Relief Services, (D MD, Aug. 3, 2022), a Maryland federal district court granted summary judgment in favor of plaintiff who was denied spousal health insurance coverage for his same-sex husband. Rejecting a church-autonomy defense, the court said in part:

CRS insists that any judicial inquiry into this case inevitably requires an inquiry into matters of Catholic faith and doctrine. This is not so; this case concerns a social service organization's employment benefit decisions regarding a data analyst and does not involve CRS's spiritual or ministerial functions.

The court held that Catholic Relief Services violated Title VII, and that the exemption in Title VII for religious organizations only applies to discrimination by them on the basis of religion. It also held that RFRA does not provide a defense because it applies only to claims against the government. The court also found no First Amendment violation, saying in part:

Our Constitution's solicitousness of religious exercise is not carte blanche for any religious institution wishing to place itself beyond the reach of any neutral and generally applicable law. This court need not engage in a strict scrutiny analysis that would apply if a truly comparable secular institution were being treated favorably compared to CRS.

The court went on to find violations of the federal and state Equal Pay Acts, and ordered certification to the state court of a question of coverage by Maryland's Fair Employment Practices Act.