5th Circuit: Texas Statute Giving Parents Right to Consent to Teens' Contraceptives Is Consistent with Title X

 In Deanda v. Becerra, (5th Cir., March 12, 2024), the U.S. 5th Circuit Court of Appeals held that a Texas statute giving parents the right to consent to their teenagers' receiving contraceptives is consistent with Title X of the federal Public Health Service Act under which clinics are given grants to distribute contraceptives and other family planning services. HHS had given informal guidance to grantees that they could not require parental consent or notify parents before prescribing contraceptives to minors. The court's opinion describes the lawsuit:

In 2020, Alexander Deanda filed a federal lawsuit challenging the Secretary’s administration of the Title X program. He alleged that he is the father of three minor daughters1; that he is raising his daughters according to his Christian beliefs to abstain from pre-marital sex; and that he wants to be informed if any of his children access or try to access contraceptives. He further alleged that Texas law gives him a right to consent before his children obtain contraceptives. See Tex. Fam. Code § 151.001(a)(6); § 102.003(a)(1). Finally, he alleged that the Secretary administers Title X unlawfully by funding grantees who provide contraceptives to minors without notifying parents or obtaining parental consent. Accordingly, Deanda sought declaratory and injunctive relief on behalf of himself and a putative class, claiming that the Title X program violates (and does not preempt) Texas law and that it violates his constitutional right to direct his children’s upbringing as well as his rights under the Religious Freedom Restoration Act (“RFRA”).

The court concluded that Title X and the Texas statute reinforce each other because Title X calls for grantees to encourage family participation to the extent practicable.  The court however reversed the trial court's invalidation of a formal HHS Rule promulgated in 2021 forbidding grantees from notifying parents or requiring parental consent because the Rule was adopted after this lawsuit was filed and was not specifically challenged by the lawsuit. 

Houston Chronicle reports on the decision.

Complaint Charges Sarah Lawrence College with Antisemitism Violating Title VI

A Complaint (full text) was filed on March 11 with the Department of Education Office for Civil Rights by Hillels of Westchester asking OCR to initiate an investigation of antisemitism at Sarah Lawrence College. The 43-page Complaint (with 46 pages of Exhibits attached) reads in part:

We are submitting this Title VI Complaint1 as counsel for Hillels of Westchester2 ... which is acting on behalf of current and former Jewish students at Sarah Lawrence College (“SLC”) who, as an expression of their Jewish identity, affiliate with Hillel or have an affinity for Israel....

The hostile environment on campus, going back many years, forces these Jewish students to conceal their identity and precludes them from participating in SLC’s social, educational and extracurricular activities unless they disavow their affiliation with Hillel or affinity for Israel.  The administration at SLC has been well aware of this ongoing problem and not only has failed to address it, but at times has been complicit in contributing towards it.  In the painfully sardonic words of one Jewish student who transferred out of Sarah Lawrence College because of its toxic environment, “it is safe to be Jewish as long as you are openly anti-Israel.”...

... [I]n some cases SLC administrators and faculty have discouraged students from lodging formal complaints of anti-Semitism, or have delayed or “slow-walked” the complaint process – essentially, waiting out the students until they graduate or complete the school year. The complaint process itself is notoriously opaque, preventing students from knowing what measures, if any, have been taken to address their complaints.

National Review reports on the Complaint.

Settlement Narrows Interpretation of Florida's "Don't Say Gay" Law

On Monday, a Settlement Agreement (full text) was filed with the U.S. Court of Appeals for the 11th Circuit in Equality Florida v. Florida State Board of Education. In the case, plaintiffs challenged the constitutionality of Florida's Parental Rights in Education Act (sometimes known as the "Don't Say Gay" law). The Settlement Agreement defines narrowly the conduct that is prohibited by the law. According to the Agreement, the law only bans instruction on sexual orientation or gender identity that takes place in the classroom in grades 1-3. It does not ban references by teachers or students that do not amount to "instruction." Library books and extracurricular activities are not impacted by the ban.

In a press release, Florida Governor Ron Desantis' referred to the settlement as 

a major win against the activists who sought to stop Florida’s efforts to keep radical gender and sexual ideology out of the classrooms of public-school children in kindergarten through third grade (5- to 9-year-olds).

Plaintiffs in the case however describe it as a win for them, saying in part:

The agreement effectively nullifies the most dangerous and discriminatory impacts of Florida’s controversial “Don’t Say Gay Law,” and makes clear that the law must be applied neutrally and is no license to discriminate against or erase LGBTQ+ families.

The settlement restores the ability of students, teachers, and others in Florida schools to speak and write freely about sexual orientation and gender identity in class participation and schoolwork. It also restores safeguards against bullying on the basis of sexual orientation and gender identity, and reinstates Gay-Straight Alliances (GSAs). Critically, the settlement also requires the State Board of Education to send today’s agreement to every school district, and to make clear that the settlement reflects the considered position of the State of Florida on the scope and meaning of this law.

USCIRF Ends Saudi Visit After Its Jewish Chairman Was Told to Remove His Kippah in Public Places

In a press release issued Monday, the U.S. Commission on International Religious Freedom said that last week it ended an official visit to Saudi Arabia early after the delegation was told to leave the Diriyah UNESCO World Heritage Site in Riyadh because USCIRF Chairman Rabbi Abraham Cooper would not remove his kippah (head covering). The press release says in part:

The Saudi government had invited the delegation, led by Chair Cooper and Vice Chair Reverend Frederick A. Davie, to tour the site on March 5, as part of their official visit to the country that had started on March 3. After several delays to the tour, officials requested that Cooper, an Orthodox Jewish Rabbi, remove his kippah while at the site and anytime he was to be in public, even though the Saudi Ministry of Foreign Affairs had approved the site visit. U.S. Embassy staff accompanying the USCIRF delegation supported and conveyed to Saudi officials Chair Cooper’s polite but resolute refusal to remove the kippah. Despite their efforts, site officials escorted the delegation off the premises after Chair Cooper indicated he sought no confrontation or provocation but as an observant Jew could not comply with a request to remove his kippah.

The Saudi Embassy in Washington, D.C. issued a statement (full text) saying in part:

This unfortunate incident was the result of a misunderstanding of internal protocols.... We look forward to welcoming him back to the Kingdom.

New York's Removal of Religious Exemption from School Vaccination Requirement Is Upheld

In Miller v. McDonald, (WD NY, March 11, 2024), a New York federal district court upheld New York's removal of religious exemptions from its mandatory requirement for vaccination of school children. It rejected Free Exercise challenges by Amish individuals and schools, finding, in part in reliance on the 2nd Circuit's We the Patriots decision, that the law was both neutral and generally applicable, and thus did not trigger heightened scrutiny.  The court said in  part:

... Plaintiffs allege that PHL § 2164 is not neutral because “the State targeted religious adherents by eliminating [the] long-standing religious exemption while leaving the medical exemption process in place.”... This allegation fails to establish non-neutrality.  Nothing in the text of PHL § 2164 as amended demonstrates any hostility to religion.  To the contrary, PHL § 2164 is neutral on its face, neither targeting religious belief nor singling it out for particularly harsh treatment.  And, as previously noted, We the Patriots affirmatively held that the repeal of a previously existing religious exemption is not, of itself, hostile to religion....

Moreover, the legislative history related to the repeal of the non-medical exemption contains no evidence of hostility towards religious belief.  Those sponsoring the relevant legislation in both the New York State Senate and the New York State Assembly made clear that their concern was public health...

The We the Patriots court explained that “where a law provides for an objectively defined category of people to whom the vaccination requirement does not apply, including a category defined by medical providers’ use of their professional judgment, such an exemption affords no meaningful discretion to the State” and thus does not render the law not generally applicable.

Court Upholds Kansas Law Requiring Biological Sex at Birth on Driver's Licenses

 In State of Kansas ex rel. Kobach v. Harper, (KS Dist. Ct., March 11, 2024), a Kansas state trial court, in issuing a preliminary injunction, rejected challenges to a Kansas law that requires driver's licenses to reflect a person's "biological sex, either male or female, at birth." The court said in part:

The crux of Intervenors’ constitutional argument is that requiring KDOR to display a licensee’s sex at birth on a driver’s license and in the KDOR database violates Section 1 of the Kansas Constitution Bill of Rights. Section 1 says: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” ...

[The Kansas Supreme court decision in] Hodes said Kansans have the right to control their own bodies. It did not say Kansans have a fundamental state constitutional right to control what information is displayed on a state-issued driver’s license. And the Intervenors’ testimony at the hearing was that producing a driver’s license indicating a sex different than their expressed gender did not result in physical violence, verbal harassment, loss of employment, loss of benefits, refusal of service, or negative interaction with law enforcement. Rather, Intervenors testified about feeling embarrassed, humiliated, or unsafe if someone gave them a puzzled look, hesitated, or questioned their identity when looking at their driver’s license. They testified to the discomfort of airport security pat downs that are a universal feature of modern travel. K.S.A. 77-207 does not violate any right to personal autonomy under Section 1....

Finally, Intervenors assert that K.S.A. 77-207 deprives them of equal protection of the law .... The rules are the same for identifying each person who seeks a driver’s license. Similarly situated people are not treated differently under the statute, thus there is no equal protection violation.

AP reports on the decision.

D.C. Circuit Hears Arguments on Tax Exempt Status of Church Promoting Religious Use of Psychedelic Drug

The U.S. court of Appeals for the D.C. Circuit yesterday heard oral arguments in Iowaska Church of Healing v. Werfel (audio of full oral arguments). In the case, the D.C. federal district court upheld the IRS's refusal to grant §501(c)(3) non-profit status to a church that promotes the religious use of Ayahuasca, a tea brewed from plants containing a drug that is illegal under the federal Controlled Substances Act. (See prior posting.) Bloomberg Law reports on the oral arguments.

Orthodox Jewish Passengers Sue JetBlue For Discrimination

Suit was filed late last month in a New York federal district court against JetBlue Airways by three observant Jewish passengers who were forced off of a flight by airline personnel after one of the passengers, an Orthodox Jewish man, asked other passengers to switch seats with him so, consistent with his religious beliefs, he would not be sitting next to a woman who was not his wife or a blood relative. The complaint (full text) in Ungar v. JetBlue Airways Corp., (SD NY, filed 2/27/2024), alleges in part:

48. ... At no time while Mr. Lunger was trying to observe his religious beliefs, did he force, become loud, or use a stern voice to intimidate any other passengers into changing seats with him.  

49. Even though Mr. Lunger had figured out a way to observe his religious beliefs without interfering with the flight, Defendant Doe [the flight attendant] discriminated against Mr. Lunger because of his race and his religion.

50. Defendant Doe brought the JetBlue pilot to the back of the plane.

51.  The JetBlue pilot falsely told the Plaintiffs that they could not change seats because it was a violation and it would cause a weight imbalance.... 

Plaintiffs claim they suffered discrimination and retaliation on the basis of religion and race in violation of 42 USC §1981 and California's Unruh Civil Rights Act. Live and Let's Fly reports on the lawsuit.

President Sends Ramadan Greetings Outlining Policy Initiatives

 President Biden yesterday issued a Statement on the Occasion of Ramadan (full text), saying in part:

Tonight—as the new crescent moon marks the beginning of the Islamic holy month of Ramadan—Jill and I extend our best wishes and prayers to Muslims across our country and around the world....

...As Muslims gather around the world over the coming days and weeks to break their fast, the suffering of the Palestinian people will be front of mind for many. It is front of mind for me.

The United States will continue to lead international efforts to get more humanitarian assistance into Gaza by land, air, and sea....

While we get more life-saving aid to Gaza, the United States will continue working non-stop to establish an immediate and sustained ceasefire for at least six weeks as part of a deal that releases hostages. And we will continue building toward a long-term future of stability, security, and peace. That includes a two-state solution to ensure Palestinians and Israelis share equal measures of freedom, dignity, security, and prosperity. That is the only path toward an enduring peace.

Here at home, we have seen an appalling resurgence of hate and violence toward Muslim Americans. Islamophobia has absolutely no place in the United States, a country founded on freedom of worship and built on the contributions of immigrants, including Muslim immigrants. My Administration is developing the first-ever National Strategy to Counter Islamophobia and Related Forms of Bias and Discrimination, to take on hate against Muslim, Sikh, South Asian, and Arab American communities, wherever it occurs.

Ban on Caste Discrimination Is Constitutional

In Bagal v. Sawant, (WD WA, March 8, 2024), a Washington federal district court rejected First and 14th Amendment challenges to the City of Seattle's adding of "caste" as a protected class under its anti-discrimination Ordinance. The court said in part:

First, Plaintiff argues that incorporating “caste” into existing anti-discrimination laws ipso facto creates a stigma, levelled towards a specific and insular minority group, namely members of the Hindu religion....

Plaintiff simply does not allege they are burdened, in any manner, from practicing their faith.... [H]aving failed to allege a cognizable injury, Plaintiff de facto lacks standing to assert a Free Exercise challenge to the Ordinance. Plaintiff’s Establishment Clause claim is similarly unavailing.... Fundamentally, Plaintiff’s reasoning is that the City of Seattle’s involvement on an issue of equal importance to practitioners of a certain religion becomes, as a consequence, activity in favor or opposition to that religion. And that, because the City of Seattle opted to disfavor caste-based forms of discrimination, a fortiori it condemned all notions of caste as it was understood by any religion. But that logic proves too much. And even assuming, arguendo, that the Ordinance does condemn notions of caste as is believed by a certain religion, that does not constitute activity in support or disparagement of that religion. For instance, birth control is a topic that involves both religious beliefs and general welfare concerns. And yet, no court has ever held that government approval of birth control violates the Establishment Clause....

It is not enough, in other words, that the anti-caste legislation strikes members of a religion as reflecting poorly on their religious beliefs.... In this case, the Ordinance’s principal effect is not to endorse a religion, but simply to bolster local anti-discrimination laws.  Any coincidental reference to a shared phenomenon (such as caste) is secondary, if not wholly, immaterial....

Second, Plaintiff contends that the Ordinance violates the Equal Protection Clause....

Nowhere does the text of the Ordinance make use of prohibited classifications.  Rather, the Ordinance is facially neutral and of general applicability.  Moreover, wholly absent from Plaintiff’s complaint are any facts suggesting that the legislative drafters were actually motivated by racial or ethnic animus.... Further to the point, Plaintiff’s complaint does not plausibly allege that the City of Seattle has applied the Ordinance in a discriminatory manner.

Recent Articles of Interest

From SSRN:

• James Gerard Dwyer, Smith's Last Stand? Free Exercise and Foster Care Exceptionalism, (University of Pennsylvania Journal of Constitutional Law, Vol. 24, No. 856, 2022).
• Jianlin Chen, Law and Politics of Religious Fraud Regulation: China, Taiwan and Hong Kong, (Edward Elgar 2023).
• Kyle Velte, Debunking the Narrowness Narrative in LGBTQ Religious Exemption Claims, (St. Louis University Law Journal (forthcoming 2024) (Childress Lecture Symposium)).
• Aziza Ahmed, Nicole Huberfeld & Linda C. McClain, Introduction: Securing Reproductive Justice After Dobbs, (51 Journal of Law, Medicine, & Ethics 463 (Fall 2023)).
• Kenneth Robert Davis, A Farewell to Harms: Rethinking the Injury Requirements of Title VII, (Harvard Journal on Legislation, Vol. 61, No. 1, 2024).

From SmartCILP:

• Syafiq Hasyim, Book Review. The Shariatisation of Indonesia: The Politics of the Council of Indonesian Ulama (MUI), by Syafiq Hasyim, 57 Law & Society Review 554-556 (2023).
• Hayden J. Bellenoit, Legal Limbo and Caste Consternation: Determining Kayasthas' Varna Rank in Indian Law Courts, 1860–1930, 41 Law & History Review 43-63 (2023).
• Paolo Astorri, The Redefinition of Clandestine Marriage by Sixteenth-Century Lutheran Theologians and Jurists, 41 Law & History Review 65-92 (2023).

Federal Agencies Finalize Rule Amendments on Grants to Faith-Based Organizations

On March 4, nine federal agencies published a 52-page joint release titled Partnerships With Faith-Based and Neighborhood Organizations (full text) in the Federal Register amending rules adopted by them during the Trump Administration. In a press release, Americans United summarizes the rule changes in part as follows:

The new regulations:

• Reinstate the requirement that people seeking services be informed of their religious freedom rights, which include that:

• They can’t be discriminated against because of their religion or because they are nonreligious.

• They can’t be required to pray or participate in religious activities.

• They can file a complaint if their rights are violated.

• Reinstate safeguards that ensure that people who obtain social services through vouchers are not forced to attend or participate in religious activities.

• Eliminate Trump-era provisions that were designed to allow social service providers to refuse to provide key services....

Ramadan Begins Sunday Evening

 As announced by the Fiqh Council of North America, Ramadan begins this evening (Sunday, March 10). CAIR has released a Ramadan Toolkit with templates for employees and students to use to seek accommodations for Ramadan observance.  It also includes templates and sample texts for a resolution on Ramadan and Eid that can be adopted by governmental bodies, as well as a template letter regarding a Gaza Ceasefire resolution.

Indiana Legislature Passes Bill Barring Antisemitism in Public Schools and Colleges

On Friday, the Indiana legislature gave final passage to House Bill 1002 (full text) which amends the state Education Code to specifically protect against antisemitism in public schools and colleges.  The bill, as finally enacted, defines antisemitism by adopting the text of the International Holocaust Remembrance Alliance's definition, but, in a compromise, excludes examples given by IHRA that, among other things, indicate when criticism of Israel amounts to antisemitism.  AP reports on the bill's passage, discussing the compromise in greater detail. The bill now goes to Governor Eric Holcomb for his signature.

Student Sues School Board Alleging Gender Affirming Policies Violate Her Rights

Suit was filed earlier this week in a Virgina state trial court by a high school student challenging Fairfax County School Board regulations (full text) that support transgender students.  The complaint (full text) in Doe v. Fairfax County School Board, (VA Cir. Ct., filed 3/4/2024), alleges in part:

... FCPS Regulation 2603.2 and its application unconstitutionally violates the Petitioner’s sincerely held philosophical and religious beliefs by compelling her to refer to “[s]tudents who identify as gender-expansive or transgender [] by their chosen name and pronoun ....  

... [They] further unconstitutionally violate the Petitioner’s philosophical and religious beliefs by compelling her to share a restroom with a biological male. 

... [They] unconstitutionally discriminate against the Petitioner on the basis of her sex by requiring her to use a private restroom to remain consistent with her beliefs while allowing a biological male to use the female restroom... [and by permitting] a biological male to feel safe and comfortable by having full access to any restroom of his choice while not allowing the Petitioner to feel safe and comfortable by using the restroom of her biological sex....

... FCPS has knowingly and blatantly violated the Petitioner’s rights by forcing her to accept the ideological viewpoint of the government and the claimed rights and privileges of other students. 

America First Legal issued a press release announcing its filing or the lawsuit. FFXNow reports on the lawsuit.

Alabama Passes Law Protecting IVF Clinics from Liability

Reacting to the recent Alabama Supreme Court decision holding that the state's wrongful death statute applies to the negligent destruction of frozen embryos created during IVF treatment, the Alabama legislature yesterday passed, and Governor Kay Ivey immediately signed SB159 (full text) which provides in part:

Related to in vitro fertilization and notwithstanding any provision of law ..., no action, suit, or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization....

... [N]o criminal prosecution may be brought for the damage to or death of an embryo against the manufacturer of goods used to facilitate the in vitro fertilization process or the transport of stored embryos.

The statute explicitly has retroactive effect. NPR reports on the new law.

Virginia Legislature Passes Symbolic Bill Recognizing Same-Sex Marriages

In Virginia, Governor Glenn Youngkin has until tomorrow to decide whether or not to sign HB 174/ SB 101 (full text) which provides:

No person authorized by § 20-14 to issue a marriage license shall deny the issuance of such license to two parties contemplating a lawful marriage on the basis of the sex, gender, or race of such parties. Such lawful marriages shall be recognized in the Commonwealth regardless of the sex, gender, or race of the parties.

Religious organizations and members of the clergy acting in their religious capacity shall have the right to refuse to perform any marriage.

As reported by Dogwood, the bill was introduced because of concern that the U.S. Supreme Court might overrule its caselaw protecting same-sex marriages. Even if the Governor signs the bill, its impact on same-sex marriages would only be symbolic since the Virginia Constitution Sec. 15-A prohibits recognition of same-sex marriages in the state and would take precedence over the statute if the U.S. Supreme Court returned the issue of recognition of same-sex marriages to the states.

9th Circuit Grants En Banc Rehearing in Huntsman's Suit Against LDS Church

In an Order (full text) issued March 1, the U.S. 9th Circuit Court of Appeals voted to grant en banc review in Huntsman v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints.  In doing so, the Order vacates the decision of the 3-judge panel in the case in which James Huntsman, a prominent former member of the LDS Church who had contributed over $2.6 million to it, charged the Church with fraudulently misrepresenting the manner in which funds from tithes would be used. (See prior posting.) Arguments in the rehearing are set for June 24.  ABC News 4 reports on the court's action.

Christian Organization Challenges Grant Rule Barring Religious Favoritism in Hiring

Suit was filed this week in an Oregon federal district court challenging an anti-discrimination rule of the Oregon Department of Education that disqualified a Christian youth-mentoring ministry from receiving $410,000 in grants for which it had initially been selected. The Christian group requires all of its board members, its 30 employees and 100+ volunteers to adhere to the organization's Statement of Faith. The Grant Program's rule bars grantees from favoring co-religionists as employees or volunteers. The complaint (full text) in Yourh 71Five Ministries v. Williams, (D OR, filed 3/4/2024), contends that the rule violates its Free Exercise and Free Expression rights, saying in part:

Because it emphasizes one-to-one mentoring and creating authentic, trusting relationships, 71Five Ministries depends on its staff and volunteers to fulfill the ministry’s distinctly Christian mission and purpose....

Defendants cannot disqualify otherwise eligible religious organizations from participation in otherwise available government benefit programs, including the Youth Community Investment Grant Program, “solely because of their religious character,”

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

Man Sentenced To 1 Year + For Threatening Synagogue Shooting

According to a press release from the U.S. Attorney's Office for the Western District of Michigan, on Monday a 20-year old Michigan man was sentenced to 12 months and one day in prison, 3 years of supervised release and restitution payment of $10,648 for sending numerous Instagram messages threatening a mass shooting at an East Lansing, MI synagogue. Notes on defendant's cell phone indicated that he planned to commit suicide after the mass shooting.