6th Circuit Stays Injunction Against Tennessee's Ban on Treatment of Transgender Youth

In L.W. v. Skrmetti, (6th Cir., July 8, 2023), the U.S. 6th Circuit Court of Appeals in a 2-1 decision stayed a district court's preliminary injunction against Tennessee's ban on providing puberty blockers and hormone therapy for minors suffering from gender dysphoria. Chief Judge Sutton's majority opinion first held that the district court had abused its power by issuing a state-wide injunction in the case. It went on to hold that plaintiffs are unlikely to prevail on their due process or equal protection challenges, saying in part:

Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable federal constitution to occupy the field....

Parents, it is true, have a substantive due process right “to make decisions concerning the care, custody, and control of their children.”.... But the Supreme Court cases recognizing this right confine it to narrow fields, such as education ... and visitation rights.... No Supreme Court case extends it to a general right to receive new medical or experimental drug treatments.....

Gender-affirming procedures often employ FDA-approved drugs for non-approved, “off label” uses. Tennessee decided that such off-label use in this area presents unacceptable dangers.... Many medical professionals and many medical organizations may disagree. But the Constitution does not require Tennessee to view these treatments the same way as the majority of experts or to allow drugs for all uses simply because the FDA has approved them for some....

Equal protection.... The Act bans gender-affirming care for minors of both sexes. The ban thus applies to all minors, regardless of their biological birth with male or female sex organs. That prohibition does not prefer one sex to the detriment of the other.....

The plaintiffs separately claim that the Act amounts to transgender-based discrimination, violating the rights of a quasi-suspect class. But neither the Supreme Court nor this court has recognized transgender status as a quasi-suspect class. Until that changes, rational basis review applies to transgender-based classifications....

These initial views, we must acknowledge, are just that: initial. We may be wrong. It may be that the one week we have had to resolve this motion does not suffice to see our own mistakes. In an effort to mitigate any potential harm from that possibility, we will expedite the appeal of the preliminary injunction....

Judge White dissented in part, agreeing that the injunction was too broad, but concluding that plaintiffs would likely succeed on their Equal Protection challenge because the law discriminates on the basis of sex.

Politico reports on the decision.

State AG's Warn Target Corp. About Consequences of Its Pride Campaign

Earlier this week, the Indiana Attorney General, joined by the Attorneys General of Arkansas, Idaho, Kentucky, Mississippi, Missouri and South Carolina sent a joint letter (full text) to the CEO of Target Corp. complaining about the company's promotion and sale of products supporting Pride month. The states' legal officers suggested that Target may have violated state child-protection and parental rights laws.  It also suggests that Target has violated its duties to the states as shareholders of Target stock (presumably held in state pension funds).  The 5-page, heavily footnoted letter said in part:

As the chief legal officers of our States, we are charged with enforcing state laws protecting children and safeguarding parental rights.... 

In light of these responsibilities, we wish to communicate our concern for Target’s recent “Pride” campaign. During this campaign, Target wittingly marketed and sold LGBTQIA+ promotional products to families and young children as part of a comprehensive effort to promote gender and sexual identity among children...  Target also sold products with anti-Christian designs, such as pentagrams, horned skulls, and other Satanic products....

In connection with its “Pride” campaign, Target provides financial support to an organization called GLSEN (pronounced “glisten”). GLSEN furnishes resources to activists for the purpose of undermining parents’ constitutional and statutory rights by supporting “secret gender transitions for kids” and directing public schools to withhold “any information that may reveal a student’s gender identity to others, including [to] parents or guardians.”...

...Target’s directors and officers have a fiduciary duty to our States as shareholders in the company. The evidence suggests that Target’s directors and officers may be negligent in undertaking the “Pride” campaign, which negatively affected Target’s stock price. Moreover, it may have improperly directed company resources for collateral political or social goals unrelated to the company’s and its shareholders’ best interests....

We live in a different day and age from our nation’s founding. But certain immutable precepts and principles must always endure so long as America is to remain free and prosperous.

CBS News reports on the letter.

North Carolina Governor Vetoes Bills On Women's Sprots, Parental Rights and Gender Transition

On Wednesday, North Carolina Governor Roy Cooper announced that he has vetoed three bills passed by the state's legislature: 

(1) House Bill 574, Fairness in Women's Sports Act that prohibits transgender women from participating on school sports teams designated for women.

(2) Senate Bill 49, Parents Bill of Rights which increases parental rights and involvement in their children's education, including the right to seek a religious exemption from immunization requirements, the right to withhold consent for the child to participate in reproductive health education programs, and the right to review all material their child has borrowed from a school library, among many other rights.

(3) House Bill 808, Gender Transition for Minors, which prohibits medical professionals from performing surgical gender transition procedures on a minor or prescribe puberty blocking drugs or cross-sex hormones to a minor.

Christian Post reports on the Governor's action.

Ministerial Exception Applies to Slander, But Not Contract Claims

In Gackenheimer v. Southern New England Conference of the United Church of Christ, Inc., (CT Super., June 29, 2023), a minister who was fired from his position as executive director of a church's conference center sued the church and its senior leaders for defamation, infliction of emotional distress and breaches of express and implied contract.  Plaintiff alleged that the leaders misrepresented the reasons for his firing in communications to community religious leaders and church volunteers. A Connecticut trial court applied the ministerial exception doctrine to dismiss defamation related claims, but permitted plaintiff to move ahead with his contract claims. The court said in part:

The ministerial exception ... does not categorically preclude all claims brought against a religious institution. ..."...[E]ven if it is established that the plaintiff's primary duties render him a ministerial employee ... Connecticut courts must consider whether adjudicating the particular claims and defenses in the case would require the court to intrude into a religious institution's exclusive right to decide matters pertaining to doctrine or its internal governance or organization."... Therefore, the court will separately examine each of the plaintiff's causes of action in order to determine whether they are barred by the ministerial exception.

In counts one and two, the plaintiff alleges slander and slander per se causes of action based on two statements allegedly made by SNE's senior leaders to members of the community.... Therefore, to adjudicate the plaintiff's slander claims, the court would necessarily have to delve into the veracity of comments made by SNE's leaders regarding its decision to terminate the plaintiff's employment.... Such an examination into the decision-making process of church leadership is exactly what the ministerial exception prohibits. Accordingly, the court strikes counts one and two.

Counts three and four state claims for negligent and intentional infliction of emotional distress... based on SNE's decision to terminate his employment and the immediate aftermath of the process... . "[T]hese claims arise directly from, and in furtherance of, the defendants' decision to terminate the employment of the plaintiff...." On that basis, the court grants the motion to strike counts three and four....

Unlike the claims brought by the plaintiff in counts one through four, counts five through eight do not involve the plaintiff's termination process and the reasons behind it. Rather, in these counts, the plaintiff asks the court to determine if SNE breached its employment contract with him or, alternatively, ... the plaintiff is entitled to relief under the doctrine of promissory estoppel. Importantly, the plaintiff alleges that he earned this claimed compensation years before he was fired. Therefore, when deciding this dispute, the court will not be excessively entangled in SNE's decision about whether to retain the plaintiff as its minister.... The court ... therefore denies the motion to strike counts five, six, seven and eight.

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.

Court Says Dobbs Decision Does Not Undercut Freedom of Access To Clinic Entrances Act

In United States v. Gallagher, (MD TN, July 3, 2023), a Tennessee federal district court became the first court to rule on whether the Supreme Court's Dobbs decision affects the constitutionality of the Freedom of Access to Clinic Entrances ("FACE") Act.  In the case, eleven co-defendants sought dismissal of their indictments for violating FACE. They first argued that since Dobbs held abortion is not entitled to heightened protection under the 14th Amendment, Congress' reliance in enacting the law on its 14th Amendment Section 5 enforcement powers is undercut. The court responded in part:

While the question of how section 5 applies to the FACE Act may be of some abstract or academic interest, however, it is of limited practical importance, given that section 5 is only one of two powers on which Congress relied in enacting the FACE Act, the other of which—the power to regulate interstate commerce—was not at issue in Dobbs.

Later in its opinion, the court rejected defendants' argument that Dobbs effectively created a carveout of abortion services from commerce clause coverage. It also rejected defendants' argument that they could not be prosecuted under 18 USC §241 for conspiring to prevent the exercise of a federal right. The court said "§ 241 does not require that the right in question be constitutional, only that it be federal. FACE is, of course, a federal statute...."

The court also rejected defendants' argument that the government is engaged in impermissible selective enforcement because it has not brought enough prosecutions under the FACE Act against individuals who have interfered in the operation of anti-abortion “crisis pregnancy centers.”

It went on to reject defendants' free speech arguments, saying in part:

Nor is the FACE Act being applied in an unconstitutional manner to these particular defendants based on their viewpoints or participation in First Amendment-protected activities, as would be required for a so-called “vindictive prosecution” defense. “...

Because there is no actual evidence of any such improper motive, the defendants engage in a sleight of hand, whereby they have treated any statement by the Department of Justice indicating a desire to safeguard access to abortion as evidence of a desire to punish these defendants for Dobbs. The defendants, though, are not the center of the moral or political universe. A desire to safeguard access to abortion is a desire to safeguard access to abortion—not an affront directed at them. More importantly, safeguarding access to abortion is, particularly under Dobbs, an entirely appropriate thing for legislatures and executives to do, if that is the course they choose. Indeed, it is harder to imagine a more fulsome endorsement of the elected branches’ power to set abortion policy than Dobbs...

Moving to defendants' Free Exercise/ RFRA claims, the court said in part:

The boundaries of the Free Exercise Clause are a topic of much disagreement.... The defendants’ argument, however, goes to something much more fundamental. Although the defendants go to great lengths to make this issue more complicated than it is, they ultimately ask a straightforward question: Does the Free Exercise Clause grant individuals who are acting out of religious motivations freedom to commit actions that otherwise would be crimes against the person or property of others through physical invasion, intimidation, or threat? The answer is similarly straightforward: No, it does not....

The defendants argued that RFRA requires that the state have a compelling interest to substantially burden religious exercise, and that after Dobbs there cannot be a compelling interest in protecting access to abortion. The court responded in part:

... [T]he Supreme Court has never held that a “compelling interest” depends upon something being considered a fundamental right. They are different constitutional concepts, performing different jurisprudential functions.

Court Strongly Criticizes Performance of Counsel for The Satanic Temple

In March 2021, The Satanic Temple and one of its members filed suit in a Texas federal district court challenging Texas' requirement that a woman have a sonogram prior to an abortion. The complaint alleged that in light of the Satanic Temple's Satanic Abortion Ritual, the Texas requirement violated plaintiffs' free exercise, substantive due process and equal protection rights. (See prior posting.) After the U.S. Supreme Court's Dobbs decision, The Satanic Temple filed a Third Amended Complaint.  In The Satanic Temple, Inc. v. Young, (SD TX, July 3, 2023), the Texas district court then dismissed the suit for lack of standing and on sovereign immunity grounds.  The court added:

Without any supporting detail, Plaintiffs assert two causes of action under the First Amendment, one being a claim swirling together the Free Speech and Free Exercise Clauses, and the other pertaining to the Establishment Clause. Young argues that these claims are so inadequately pleaded as to deprive her of fair notice as to what exactly this suit is about in the wake of Dobbs....

The court also refused to grant plaintiffs leave to replead their claims.  In doing so, the court set out an unusually strong criticism of the performance of plaintiffs' counsel, saying in part:

Given the detail of the prior complaints and these substantial changes in the law, the deficiencies in the operative complaint are no doubt intentional. And indeed, the filing of a willfully deficient amended complaint is of a piece with the mulish litigation conduct by counsel for Plaintiffs, Attorney Matt Kezhaya, in this and other actions representing The Satanic Temple. Recently considered in this regard was whether to revoke his permission to proceed pro hac vice in light of sanctions entered against him in other federal courts after his appearance here. For example, [in one of those cases:]

He ... filed a second motion for TRO containing negligible legal analysis, with six pages of the main analysis dedicated to presentation of what’s purported to be a five-act play.....

Litigation of constitutional claims is a serious matter. Such issues deserve serious attention from counsel desiring to be taken seriously. As it turns out, Plaintiffs might have been better served by proceeding pro se, as applicable standards would dictate that their filings would be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers.”...

And any repleading at this stage would manifest undue prejudice to a range of current and former Defendants who still have little clue as to the exact nature of the claims brought in this case. The Court is also of the firm belief that any further attempt at repleading would be futile, given that Attorney Kezhaya’s filings become more conclusory, reductive, and intemperate over time, in line with his performative and obstinate conduct to date.

Suit Challenges Georgia Ban on Treatment of Minors for Gender Dysphoria

Suit was filed last week in a Georgia federal district court challenging the constitutionality of Georgia Senate Bill 140 which prohibits irreversible sex reassignment surgery and hormone replacement treatment of minors for gender dysphoria. The complaint (full text) in Koe v. Noggle, (ND GA, filed 6/29/2023), alleges in part:

The Health Care Ban violates the fundamental rights of parents to make medical decisions to ensure the health and well-being of their children. By prohibiting medical providers from treating minors with gender dysphoria—a rare condition often requiring medical and therapeutic treatment and care—in accordance with the standards of care and clinical practice guidelines, the Ban prohibits Georgia parents from seeking and obtaining appropriate medical treatment for their children.

... [It] also violates the guarantees of equal protection by denying transgender youth essential, and often lifesaving, medical treatment based on their sex and on their transgender status.

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

Defendant's Beliefs About Psilocybin Were Personal, Not Religious

In State of Ohio v. Sobel, (OH App., June 30, 2023), an Ohio appellate court rejected appellant's claim that his sentence for drug possession was based in part on his statements about his use of mushrooms as part of his religion. The court said in part:

... Sobel failed to establish that he uses psilocybin mushrooms in connection with a sincerely held religious belief. He described the “Church of Freewater” as consisting of three people providing life coaching to drug and alcohol addicted persons in the manner of Tony Robbins (a noted inspirational, self-help, motivational personality). Sobel does not describe any particular religious beliefs or tenets of the organization, other than to help people “be themselves, through mind, body, and spirit.” Freewater’s core belief appears to be allowing people to believe whatever he or she wants to believe....

Sobel also does not describe how the mushrooms are utilized in furtherance of the religion as part of a rite or ceremony. He only states opaquely, “mushrooms are a holy sacrament and [unintelligible] medicine for myself and for the Freewater organization that helps me with past traumas both immediate and ancestral and tap into the divine knowledge that is only accessible with the aid of these divine teachers.” ...

[T]hroughout the proceedings, rather than claiming a religious use, Sobel represented that mushrooms were used to treat chronic pain and PTSD.

Under the circumstances of this case, the alleged belief that was infringed would be most accurately characterized as a personal preference, rather than as a deeply held religious conviction.

Monell Claims Opposing Transcendental Meditation Program in Chicago Schools Move Ahead

In Hudgins v. Board of Education of the City of Chicago, (ND IL, June 30, 2023), two former high school students and the mother of one of the students sued claiming that a Quiet Time transcendental meditation program in the Chicago public schools violated the Free Exercise and Establishment Clauses as well as the Illinois Religious Freedom Restoration Act. Plaintiffs claim that the program contained hidden Hindu religious elements. A number of plaintiffs' claims were dismissed, primarily on statute-of-limitations grounds. However, the court allowed plaintiffs to move ahead with their Section 1983 Monell claims for damages against the Chicago Board of Education and the David Lynch Foundation which operated the program under contract in the schools.

4th Circuit Panel Members Disagree on Use of Ministerial Exception Doctrine in Suit Against Liberty University

 In Palmer v. Liberty University, Inc., (4th Cir., June 30, 2023), the three judges on the panel of the U.S. 4th Circuit Court of Appeals disagreed on whether they should consider the ministerial exception doctrine in deciding an age discrimination case brought by a Liberty University art professor.  In 2018, the University notified plaintiff who was then 79 years old that her teaching contract would not be renewed for the following year. Judge King's majority opinion held that the professor had not produced evidence of age discrimination. Instead, the university dismissed her because she was not meeting its expectations regarding digital art skills. 

Despite that favorable ruling, the University, in a cross-appeal, asked the court to also rule that the ministerial exception doctrine applied. Judge King held that the court need not reach that issue.

Judge Richarson filed a concurring opinion contending that dismissal of the professor's claim should be based on the ministerial exception doctrine, saying in part:

Though Palmer did not perform formal religious instruction, her job description required her to integrate a “Biblical worldview” into her teaching. And Palmer admits to regularly praying with students, indeed starting her classes with a psalm or a prayer. Accordingly, Liberty viewed her as an official “messenger” of its faith...

If a court imposes a minister on a congregation that doesn’t want her—even if the court does so based on employment-law principles—it nonetheless impinges on the church’s religious interest in choosing who speaks for it....

Skirting the ministerial exception by dismissing an employment-discrimination claim on its merits forces us to inquire into the church’s motives for firing its minister. But, as discussed already, the church’s decision is intrinsically bound up in religious doctrine. To subject such a decision to the scrutiny of temporal courts threatens the church’s “power to decide for themselves, free from state interference, matters of . . . faith.”...

Because Palmer—like every professor at Liberty—served as the school’s religious “messenger” to its students, she was its “minister” for First Amendment purposes. The ministerial exception thus bars her employment-discrimination claim.

Judge Motz filed a concurring opinion responding to Judge Richardson's opinion.  Judge Motz said in part:

Make no mistake: the conception of the ministerial exception advanced by my concurring colleague is no mere application of existing precedent. It is a dramatic broadening of the ministerial exception that would swallow the rule.... 

The ministerial exception effectively “gives an employer free rein to discriminate because of race, sex, pregnancy, age, disability, or other traits protected by law when selecting or firing their ‘ministers,’ even when the discrimination is wholly unrelated to the employer’s religious beliefs or practices.”... It is no exaggeration to say that the ministerial exception “condones animus.”...  Thus, the necessary implication of greatly expanding the ministerial exception is that far fewer employees would be protected from employment discrimination.

When it comes to key religious figures, this is a necessary tradeoff.... 

But Palmer was not a key religious figure or a minister. She was an art professor. Indeed, if basic acts like praying with one’s students and referencing God in the classroom are enough to transform an art professor into the type of key faith messenger who qualifies for the ministerial exception, one can only speculate as to who else might qualify for the exception...

An employee does not shed her right to be free from workplace discrimination simply because she believes in God, prays at work, and is employed by a religious entity.

Recent Articles of Interest

From SSRN:

• Patrick E. Reidy, C.S.C., Sacred Easements, (Virginia Law Review, Forthcoming).
• Julie Ada Tchoukou, Mothering Practices and Human Rights Abuses of Girls in Marginalized Contexts: Examining the Moral Culpability of Women who Abuse Children, (International Journal of Law, Policy and The Family, 2022, 00, 1–24).
• Jason T. Long, Navigating Scylla and Charybdis: For-Profit, Religious Businesses and Religious Exceptions to Title VII, (6 Business and Finance Law Review, Vol. 6:2 2023).
• Falco Muscante, “Play in the Joints” Among the Religion Clauses: Rebuilding the Strong Joints the Framers Formed, (May 13, 2023).
• Beatrice Jessie Hill, Big, Bad Roe, (14 ConLawNOW 65 (2022)).
• Michael L. Smith, Constitutional Interpretation and Zombie Provisions, (Georgia State University Law Review, Vol. 40, (Forthcoming)).
• Paul-Olivier Klein & Shee-Yee Khoo, P(r)aying for Religion? Religious Priming in Financial Contracts (June 9, 2023).

From SmartCILP:

• Jeremy P. Kehr, Fundamental Rights in the United States Court of Federal Claims, 35 Regent University Law Review 233-256 (2023).
• Ariel J. Liberman, Educational Permutations: The Church's Canon Law as Inspiration for Changes to Education Regulation, [Abstract], 35 Regent University law Review 257-294 (2023).
• Mallory B. Rechtenbach, Personal Foul-- Encroachment: How Kennedy v. Bremerton School District Blurs the Line between Government Endorsement of Religion and Private Religious Expression, [Abstract], 35 Regent University Law Review 295-338 (2023).

Indiana Supreme Court Rejects Facial Challenge to State's Abortion Law

In Members of the Medical Licensing Board of Indiana v. Planned Parenthood Great Northwest, Hawai’i, Alaska, Indiana, Kentucky, Inc., (IN Sup. Ct., June 30, 2023), the Indiana Supreme Court rejected a facial challenge under the Indiana Constitution to Indiana's 2022 abortion law. The law bans abortions except when necessary to save a woman’s life or to prevent a serious health risk, or during limited time periods when there is a lethal fetal anomaly or when the pregnancy results from rape or incest. Interpreting the broad language of Art. I, Sec, 1 of the Indiana Constitution, the court said in part: 

... Article 1, Section 1 protects a woman’s right to an abortion that is necessary to protect her life or to protect her from a serious health risk. Yet, this holding does not support Plaintiffs’ claim for a preliminary injunction. That is because they framed their claim as a facial challenge to the entire statute in all conceivable circumstances rather than an as-applied challenge to the law’s application in any particular set of circumstances where a pregnancy endangers a woman’s life or health. So this appeal does not present an opportunity to establish the precise contours of a constitutionally required life or health exception and the extent to which that exception may be broader than the current statutory exceptions....

We do not diminish a woman’s interest in terminating a pregnancy because, for starters, it is a privately held interest—informed by privately held considerations. Moreover, we recognize that many women view the ability to obtain an abortion as an exercise of their bodily autonomy. Yet, and however compelling that interest is, it does not follow that it is constitutionally protected in all circumstances....

In sum, our State’s history and traditions, as reflected in our Court’s precedents, indicate that the common understanding of Section 1 among those who framed and ratified it was that it generally left the General Assembly with broad legislative discretion to limit abortion....

Justice Slaughter filed an opinion concurring only in the judgment, saying in part:

For the first time in our state’s history, the Court holds that the Indiana Constitution protects a woman’s right to terminate her pregnancy. The Court’s unprecedented conclusion is both momentous and unnecessary on this record. The only issue before us is the propriety of the trial court’s preliminary injunction. That narrow issue can, and thus should, be resolved without reaching any of the constitutional questions upon which the Court opines gratuitously...

Justice Goff filed an opinion concurring in part and dissenting in part, saying in part:

To be sure, Senate Bill 1 itself recognizes a woman’s liberty interest, if only in part, by allowing time-limited exceptions for victims of rape and incest and pregnancies involving a lethal fetal anomaly. But by holding that the legislature retains the discretion “to prohibit abortions which are unnecessary to protect a woman’s life or health,” the Court puts these exceptions at risk, effectively inviting the legislature to repeal even the most basic protections to a woman’s liberty....

It seems to me that reproductive liberty is too personal and too important for the General Assembly to set at naught when weighed in the balance against the protection of fetal life.

Indy Star reports on the decision.

Certiorari Granted in Case on Interpretation of Title VII

On Friday, the U.S. Supreme Court granted review in Muldrow v. St. Louis, MO, (Docket No. 22-193, certiorari granted 6/30/2023) (Order List), a Title VII employment discrimination case. The grant of certiorari was limited to the question of:

Does Title VII prohibit discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage?

At issue is a Title VII sex discrimination claim by a female police sergeant who was transferred from the St. Louis police department's Intelligence Division to work in the city's Fifth District and was subsequently denied a transfer to the Second District. The Court of Appeals in Muldrow v. City of St. Louis, (8th Cir., April 4, 2022), held that absent a showing of harm resulting from a transfer, there has been no adverse employment action for purposes of Title VII. The Court's decision will impact religious discrimination in employment cases under Title VII as well as sex discrimination cases. Here is SCOTUSblog's case page with links to all the filings in the Supreme Court in the case.

Supreme Court GVR's Case on Bakers' Refusal To Design Cake For Same-Sex Wedding

On Friday, in Klein v. Oregon Bureau of Labor and Industries, (Docket No. 22-204, GVR'd June 30, 2023) (Order List) the U.S. Supreme Court granted certiorari, vacated the lower court's judgment and remanded the case to the Oregon Court of Appeals for further consideration in light of the Supreme Court's decision the same day in 303 Creative LLC v. Elenis. At issue in Klein was a finding by the state Bureau of Labor and Industries that the owners of Sweetcakes bakery violated Oregon's public accommodation law when they refused on religious grounds to design and create a wedding cake for a same-sex wedding. (See prior posting.)

Supreme Court: Web Designer's Free Speech Rights Allow Her to Refuse to Design Websites for Same-Sex Weddings

The U.S. Supreme Court today in 303 Creative LLC v. Elenis, (Sup. Ct., June 30, 2023), in a 6-3 decision, held that the 1st Amendment's free speech protections bars Colorado from using its public accommodation anti-discrimination law to require a wedding website designer to design websites for same-sex weddings in violation of her religious beliefs. Justice Gorsuch's majority opinion says in part:

The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as “pure speech” under this Court’s precedents.... We agree....

Under Colorado’s logic, the government may compel anyone who speaks for pay on a given topic to accept all commissions on that same topic—no matter the underlying message—if the topic somehow implicates a customer’s statutorily protected trait.... Taken seriously, that principle would allow the government to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty. The government could require “an unwilling Muslim movie director to make a film with a Zionist message,” or “an atheist muralist to accept a commission celebrating Evangelical zeal,” so long as they would make films or murals for other members of the public with different messages.....

Of course, as the State emphasizes, Ms. Smith offers her speech for pay and does so through 303 Creative LLC, a company in which she is “the sole member-owner.”... But none of that makes a difference. Does anyone think a speechwriter loses his First Amendment right to choose for whom he works if he accepts money in return? Or that a visual artist who accepts commissions from the public does the same? Many of the world’s great works of literature and art were created with an expectation of compensation. Nor, this Court has held, do speakers shed their First Amendment protections by employing the corporate form to disseminate their speech. This fact underlies our cases involving everything from movie producers to book publishers to newspapers....

In this case, Colorado seeks to force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance. In the past, other States in Barnette, Hurley, and Dale have similarly tested the First Amendment’s boundaries by seeking to compel speech they thought vital at the time. But, as this Court has long held, the opportunity to think for ourselves and to express those thoughts freely is among our most cherished liberties and part of what keeps our Republic strong.

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

A public accommodations law has two core purposes. First, the law ensures “equal access to publicly available goods and services.”...

Second, a public accommodations law ensures equal dignity in the common market. Indeed, that is the law’s “fundamental object”: “to vindicate ‘the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.’”...

Time and again, businesses and other commercial entities have claimed constitutional rights to discriminate. And time and again, this Court has courageously stood up to those claims—until today. Today, the Court shrinks....

This Court has long held that “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.”...

CADA’s Accommodation Clause and its application here are valid regulations of conduct. It is well settled that a public accommodations law like the Accommodation Clause does not “target speech or discriminate on the basis of its content.”... Rather, “the focal point of its prohibition” is “on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services.”...

Petitioners remain free to advocate the idea that same-sex marriage betrays God’s laws.... Even if Smith believes God is calling her to do so through her for-profit company, the company need not hold out its goods or services to the public at large. Many filmmakers, visual artists, and writers never do....

The decision threatens to balkanize the market and to allow the exclusion of other groups from many services. A website designer could equally refuse to create a wedding website for an interracial couple, for example. How quickly we forget that opposition to interracial marriage was often because “‘Almighty God . . . did not intend for the races to mix.’”... Yet the reason for discrimination need not even be religious, as this case arises under the Free Speech Clause. A stationer could refuse to sell a birth announcement for a disabled couple because she opposes their having a child.... And so on.....

AP reports on the decision.

Court Refuses To Enjoin New York's Ban On Firearms In Places of Worship

In Goldstein v. Hochul, (SD NY, June 28, 2023), a New York federal district court refused to issue a preliminary injunction in a challenge to New York's 2022 Concealed Carry Improvement Act that bans carrying firearms in "sensitive locations," including "any place of worship or religious observation."  The suit, filed by an Orthodox Jewish congregation, its president, and Jewish residents of New York who say that they have carried handguns for self-defense in synagogues. The court rejected Second Amendment, First Amendment Free Exercise, Equal Protection, and void-for vagueness challenges to the law. Discussing plaintiffs' Second Amendment challenge, the court said in part:

Beyond the historical record of laws restricting the carrying of firearms in places of worship, there is also historical precedent for the restriction of firearm-carry for law-abiding citizens either in specific physical locations or for public safety reasons....

The laws cited by Plaintiffs concerning the mandatory carry of firearms in places of worship are rooted in racial supremacy, and had the reprehensible and shameful goal of preserving slavery. They should not be considered or at a minimum deserve little or no weight in the analysis of the history and tradition of the regulation of firearm carry by law-abiding citizens for self-defense. However, the fact that these regulations existed suggests that legislatures have long exercised significant regulatory power over firearm carry, and individuals’ ability to carry firearms in houses of worship.

Responding to plaintiffs' Free Exercise and equal protection claims, the court said in part:

Plaintiffs’ claim that their religious practice is burdened by the Challenged Provision of the CCIA because they would prefer to worship while carrying a firearm does not establish a free exercise claim. Having a preference to worship while carrying a firearm is not a religious practice.....

The Challenged Provision applies to all individuals, regardless of their religious beliefs, practices, or identity. Individuals of all religions or no religion are forbidden from possession of firearms in places of worship.

Preliminary Injunction Issued Against Tennessee's Ban on Gender-Affirming Treatment for Minors

In L.W. v. Skrmetti,(MD TN, June 28, 2023), a Tennessee federal district court issued a preliminary injunction against enforcement of SB1 insofar as it bans health care personnel from providing or offering minors puberty blockers or hormone treatments for gender dysphoria. (Plaintiffs lacked standing to challenge the law's ban on gender-affirming surgery.) The court concluded that plaintiffs demonstrated a substantial likelihood of success on their due process claim, saying in part:

The Court ... agrees with Plaintiffs that under binding Sixth Circuit precedent, parents have a fundamental right to direct the medical care of their children, which naturally includes the right of parents to request certain medical treatments on behalf of their children....

It similarly found that plaintiffs had demonstrated a substantial likelihood of success on their equal protection claim, saying in part:

Defendants’ argument that SB1 does not discriminate based on transgender status is unpersuasive....

The Court is satisfied that current precedent supports the finding that transgender individuals constitute a quasi-suspect class under the Equal Protection Clause....

[T]he Court finds that SB1 discriminates on the basis of sex, which in turn provides an alternative basis for the application of intermediate scrutiny.

ACLU issued a press release announcing the decision. [Posting updated to clarify scope of holding.]

Supreme Court Says "De Minimis" Is Incorrect Standard for Religious Accommodation Under Title VII

The U.S. Supreme Court today in Groff v. DeJoy,(Sup. Ct., June 29, 2023), held that lower courts have largely been misreading the Hardison case's standard for determining when accommodation of religious practices of employees imposes an "undue hardship on the conduct of the employer's business." The case involves a postal worker who was seeking accommodation of his Sabbath observance. In a unanimous decision, written by Justice Alito, the Court said in part:

Today, the Solicitor General disavows its prior position that Hardison should be overruled—but only on the understanding that Hardison does not compel courts to read the “more than de minimis” standard “literally” or in a manner that undermines Hardison’s references to “substantial” cost....With the benefit of comprehensive briefing and oral argument, we agree.

We hold that showing “more than a de minimis cost,” as that phrase is used in common parlance, does not suffice to establish “undue hardship” under Title VII. Hardison cannot be reduced to that one phrase. In describing an employer’s “undue hardship” defense, Hardison referred repeatedly to “substantial” burdens, and that formulation better explains the decision. We therefore, like the parties, understand Hardison to mean that “undue hardship” is shown when a burden is substantial in the overall context of an employer’s business....

[B]oth parties agree that the language of Title VII requires an assessment of a possible accommodation’s effect on “the conduct of the employer’s business.”... As the Solicitor General put it, not all “impacts on coworkers . . . are relevant,” but only “coworker impacts” that go on to “affec[t] the conduct of the business.”...

An employer who fails to provide an accommodation has a defense only if the hardship is “undue,” and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.” If bias or hostility to a religious practice or a religious accommodation provided a defense to a reasonable accommodation claim, Title VII would be at war with itself....

Second, ... Title VII requires that an employer reasonably accommodate an employee’s practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations.... Faced with an accommodation request like Groff’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.

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

Petitioner Gerald Groff asks this Court to overrule Hardison.... The Court does not do so. That is a wise choice because stare decisis has “enhanced force” in statutory cases.De   

Court Issues Preliminary Injunction Against Kentucky Ban on Puberty Blockers and Hormonal Treatment for Minors

 In Doe v. Thornbury, (WD KY, June 28, 2023), a Kentucky federal district court issued a preliminary injunction barring the state from enforcing the portions of SB150 that prohibit health care providers from prescribing puberty blockers or testosterone, estrogen, or progesterone to minors suffering from gender dysphoria. The court held that the ban violates the equal protection rights of minors as well as parents' due process rights to make medical decisions for their children. CNN reports on the decision.