Church Autonomy Bars Court Adjudicating Dispute Over Withdrawal from Parent Body

 In Deutsche Evangelisch Lutherische Zions Gemeinde v. Evangelical Lutheran Church in America, (Kings Cty NY Sup. Ct., Aug. 16, 2023), a New York state trial court dismissed a suit brought by a German Lutheran church in Brooklyn that claims it has broken away from its parent bodies, the Evangelical Lutheran Church in America (ELCA) and ELCA's Metropolitan New York Synod over the parent bodies' stance accepting same-sex marriage and ordination of gay clergy. The parent bodies claim that the church is still affiliated with them. Plaintiff asks the court to determine that its membership with the parent bodies has been terminated and that the parent bodies lack authority to take control of church property. It also alleges in defamation claims that false statements about its affiliation injure its reputation and dissuade new members from joining. In rejecting those claims, the court said in part:

... [T]he neutral principles of law approach cannot be applied to adjudicate plaintiff's property claims which directly call into question the authority that has been vested in the synod to impose synodical administration which would allow it to dissolve the church and take control over its property....

The MNYS's power to impose synodical administration is far broader, however, than its authority to take control over a local church's property.... Plaintiff's argument ... ignores the inherent religious elements.... [T]he decision to impose synodical administration over a church involves consideration by the Synod of such issues as church governance, religious doctrine and practice, scripture, and the spiritual well-being of the local church's remaining members. Thus, it concerns subject matter with which this court is forbidden from entangling itself pursuant to the First Amendment. Indeed, synodical administration is an inherently religious matter although it incidentally concerns a local church's property.....

In order to resolve the dispute of whether plaintiff terminated its membership with defendants, this court would necessarily intrude into areas of church polity, religious doctrine, practice, and scripture in order to force the Synod to accept the votes taken by plaintiff's congregation in 2008 and 2009 to terminate the relationship. Whether plaintiff remains a member church of the ELCA and the MNYS is more than just a mere associational question but a religious one.

San Francisco Archdiocese Files for Bankruptcy Reorganization

In a press release yesterday, the Catholic Archdiocese of San Francisco announced that it has filed for Chapter 11 Bankruptcy Reorganization. According to the press release:

The filing is necessary to manage and resolve the more than 500 lawsuits alleging child sexual abuse brought against RCASF under California Assembly Bill 218, which allowed decades-old claims to be filed by December 31, 2022, that otherwise were time barred....

The 88 parishes within the Archdiocese are independently managed and self-financed and, along with their parochial schools, are not included in the filing. The Real Property Support Corporation, Capital Asset Support Corporation, high schools, Catholic cemeteries, St Patrick’s Seminary & University, and Catholic Charities associated with RCASF also are not included in the filing and will continue to operate as usual.

KEYT News reports on the filing and reactions to it.

5th Circuit En Banc Expands Its Interpretation of Title VII

In Hamilton v. Dallas County, (5th Cir., Aug. 18, 2023), the U.S. 5th Circuit Court of appeals in an en banc decision overturned the Circuit's previous precedent that held employment discrimination violates Title VII only if the discrimination involved an ultimate employment decision such as hiring, granting leave, discharging, promoting or compensating. In this case, the Dallas County Sheriff's Department gave its detention service officers two days off each week.  However, only men could choose to take two weekend days; women officers could only have one weekend day and one weekday, or two weekdays. The majority said in part:

Nowhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions. To be sure, the statute prohibits discrimination in ultimate employment decisions—“hir[ing],” “refus[ing] to hire,” “discharg[ing],” and “compensation”—but it also makes it unlawful for an employer “otherwise to discriminate against” an employee “with respect to [her] terms, conditions, or privileges of employment.”

Our ultimate-employment-decision test ignores this key language.

While the decision relates to a sex discrimination claim, the holding applies equally to religious discrimination.

Judge Ho filed a concurring opinion.

Judge Jones, joined by Judges Smith and Oldham concurred only in the judgment, saying in part:

The majority's incomplete ruling ... leaves the bench, bar, and employers and employees with no clue as to what this court will finally declare to be the minimum standard for Title VII liability....

... [A]s the majority recognizes, the Supreme Court emphasizes that Title VII does not effectuate a workplace “general civility code.”...Yet as written, the majority opinion has no baseline for “discrimination” based on terms or conditions of employment.

Court Preliminarily Enjoins Georgia's Ban on Hormone Therapy for Transgender Minors

In Koe v. Noggle, (ND GA, Aug. 20, 2023), a Georgia federal district court issued a preliminary injunction against enforcement of Georgia's ban on hormone replacement therapy for treatment of gender dysphoria in minors. The court said in part:

... SB 140 is subject to intermediate scrutiny both because it classifies on the basis of natal sex ... Adams, and because it places a special burden on nonconformity with sex stereotypes....

First, the preliminary record evidence of the medical risks and benefits of hormone therapy shows that a broad ban on the treatment is not substantially likely to serve the state’s interest in protecting children.... 

... [I]t should be recalled that the question put to the Court is not what the correct course of treatment is for an adolescent with gender dysphoria. The question is whether Georgia has shown an “exceedingly persuasive justification” for the challenged legislative scheme—a scheme that prohibits clinicians and parents from determining the correct course of treatment on an individualized basis, and which does so in a sex-based manner in that it imposes this prohibition only when it comes to “hormone replacement therapy” as a treatment for gender dysphoric youth....

... Defendants’ position that the quality of the existing evidence supporting hormone therapy justifies a ban of that therapy is not persuasive.

The court's decision was handed down one day before the 11th Circuit Court of Appeals (which includes Georgia) issued an opinion vacating a preliminary injunction against Alabama's ban on hormone treatment for minors with gender dysphoria. (See prior posting.)  The Hill reports on the decision.

Illinois Regulation of Limited Purpose Pregnancy Centers Violates 1st Amendment

In National Institute of Family and Life Advocates v. Raoul, (ND IL, Aug. 4, 2023), an Illinois federal district court issued a preliminary injunction against enforcement of Illinois SB 1909 which amends the state Consumer Fraud Act to prohibit limited purpose pregnancy centers from using misrepresentations or concealment to interfere with a person's access to abortion or emergency contraception. the court said in part:

SB 1909 is content based discrimination. The subject of the prohibited speech is not just abortion but speech that emphasizes the negative effects of abortion. What's more, there is ample evidence in the record before the Court at this time that SB 1909 was adopted because of Defendant Raoul's disagreement about the content of Plaintiffs' speech. The message of Plaintiffs' speech is subject to prohibition under SB 1909 but abortion providers' speech is specifically excluded from being sanctioned under the Consumer Fraud Act.

1st Amendment Requires Exemption from Anti-Bias Law for Business That Discriminates Against Same-Sex Weddings

In Country Mill Farms, LLC v. City of East Lansing, (ED MI, Aug. 21, 2023), a Michigan federal district court held that the city of East Lansing violated the Free Exercise rights of Country Mill Farms and its owner when the city refused to invite Country Mill to be a vendor at East Lansing's Farmer's Market.  The refusal was based on Country Mill's violation of the city's anti-discrimination ordinance in another part of Country Mill's business.  Country Mill rents out a portion of its farm property for weddings, but for religious reason will not rent it out for same-sex weddings. The court held that the discrimination ban was not generally applicable because of exemptions in the anti-discrimination ordinance that would allow the city to do business with firms that discriminate on the basis of sexual orientation. The court concluded in part:

In light of the nondiscretionary and the discretionary exemptions in the ordinance, the City has not demonstrated a compelling interest in excluding Plaintiffs from the Farmer’s Market. The City’s nondiscrimination ordinance tolerates the same discrimination in other situations.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

11th Circuit: No Constitutional Right to Treat Minors with Gender Transition Medications

 In Eknes-Tucker v. Governor of Alabama, (11th Cir., Aug. 21, 2023), the U.S. 11th Circuit Court of Appeals vacated a district court's preliminary injunction against Alabama's ban on hormone blockers and cross-sex hormones to treat minors with gender dysphoria. The court said in part:

On review, we hold that the district court abused its discretion in issuing this preliminary injunction because it applied the wrong standard of scrutiny. The plaintiffs have not presented any authority that supports the existence of a constitutional right to “treat [one’s] children with transitioning medications subject to medically accepted standards.” Nor have they shown that section 4(a)(1)–(3) classifies on the basis of sex or any other protected characteristic. Accordingly, section 4(a)(1)–(3) is subject only to rational basis review. Because the district court erred by reviewing the statute under a heightened standard of scrutiny, its determination that the plaintiffs have established a substantial likelihood of success on the merits cannot stand.

Judge Brasher filed a concurring opinion, saying in part:

[E]ven if the statute did discriminate based on sex, I think it is likely to satisfy intermediate scrutiny. If Alabama’s statute involves a sex-based classification that triggers heightened scrutiny, it does so because it is otherwise impossible to regulate these drugs differently when they are prescribed as a treatment for gender dysphoria than when they are prescribed for other purposes. As long as the state has a substantial justification for regulating differently the use of puberty blockers and hormones for different purposes, then I think this law satisfies intermediate scrutiny.

AL.com reports on the decision.

Enforcing Agreement To Cooperate With Jewish Religious Court Does Not Violate Establishment Clause

In Satz v. Satz, (NJ Super., Aug. 18, 2023), a New Jersey state appellate court upheld a trial court's order enforcing a marital settlement agreement (MSA) that the parties had entered in connection with their divorce proceedings. One provision in the agreement obligated the parties to comply with recommendations of a Jewish religious court (beis din) regarding the husband giving a get (Jewish bill of divorce) to the wife. According to the court:

On July 6, 2022, the beis din issued a fifteen-page ruling finding that defendant had not properly responded to summonses from rabbinical courts, that defendant is "obligated to divorce [plaintiff] forthright and immediately," and that his refusal to provide plaintiff a get "is a form of abuse." 

Affirming the trial court, the appellate court rejected the husband's Establishment Clause challenge, saying in part:

In this case ... the trial court was asked to enforce a civil contract, not a religious one. Nor did the trial court substantively review or affirm the beis din ruling. For purposes of this appeal, the beis din ruling is essentially a report confirming plaintiff's assertion that defendant failed to participate in the beis din proceeding in violation of his obligations under the MSA....

Defendant agreed in the MSA to abide by the beis din ruling, whatever that might be. In enforcing that agreement, the trial court in no way interpreted religious doctrine. The orders entered in this case scrupulously avoid entanglement with religion because the trial court applied well-established principles of civil contract law, not rabbinical law. The latter body of law remained solely within the province of the beis din and was not interpreted or applied by the Family Part judge, nor by us.

Recent Articles of Interest

From SSRN:

• Lili Levi, Anti-antisemitism Now, (August 8, 2023).
• Nicholas Aroney & Paul Taylor, Building Tolerance into Hate Speech Laws: Australian State and Territory Anti-vilification Legislation Reviewed Against International Law Standards, (University of Queensland Law Journal, 2023, Vol 42).
• Asma Uddin, Religious Liberty for Religious Child-Welfare Organizations: Promises and Perils, (Notre Dame Law Review Reflection, Vol 98:S89, 2023).
• Nicholas A. R. Fraser & Colton Fehr, Studying Religious Symbols and Bias in Court Proceedings, (Osgoode Legal Studies Research Paper Forthcoming).
• Beatrice Jessie Hill, Religious Nondelegation, (Loyola University Chicago Law Journal, Vol. 54, 2023).
• Michael Morley & F. Andrew Hessick, Against Associational Standing, (University of Chicago Law Review, Forthcoming).
• Richard M. Re,  Does the Discourse on 303 Creative Portend a Standing Realignment?, (Notre Dame Law Review Reflection, Forthcoming).
• Joseph Blocher & Brandon L. Garrett, Originalism and Historical Fact-Finding, (Georgetown Law Journal, Forthcoming).
• Carlos A. Ball, First Amendment Exemptions for Some, (Harvard Law Review Forum, Vol. 137, p. ___ (2023, Forthcoming)).
• Gennady Shkliarevsky, In the Name of Inclusion: Why Repealing Affirmative Action is a Right Thing to Do ,(August 4, 2023).

From SSRN (Islamic Law):

• Karim Aboul-Dahab, The Contribution of the Islamic and Social Banks to the Concept of Sustainable Development, (European Journal of Islamic Finance, Vol. 10, No. 2 (2023)).
• Imran A. Nyazee, Denying the Islamic Right of the Poor in Minerals in Pakistan, (August 3, 2023).
• Ghulam Mustafa Nukhba, Exploring the Analytical Approach in Analyzing Prophetic Hadith: Methodologies and Insights from Hadith Critics, (Integrated Journal for Research in Arts and Humanities, 3(4), 29–37, July 2023).

From SmartCILP:

• Lena Khor, Open Love, Religion, and Human Rights, [Abstract], 45 Human Rights Quarterly 134-156 (2023).

9th Circuit Affirms Preliminary Injunction Against Idaho's Ban on Transgender Women in School Sports

 In Hecox v. Little, (9th Cir., Aug. 17, 2023), the U.S. 9th Circuit Court of Appeals upheld a preliminary injunction issued by the district court barring enforcement of Idaho's ban on transgender women participating on women's sports teams.  The ban applies to public primary and secondary schools and public colleges, as well as to other schools that compete against public schools or colleges. The Act also creates a procedure for disputing the sex of a member of a women's team. The court said in part:

The district court did not err in concluding that heightened scrutiny applies because the Act discriminates against transgender women by categorically excluding them from female sports, as well as on the basis of sex by subjecting all female athletes, but no male athletes, to invasive sex verification procedures to implement that policy....

... [T]he Act sweeps much more broadly than simply excluding transgender women who have gone through “endogenous puberty.” The Act’s categorical ban includes transgender students who are young girls in elementary school or even kindergarten. Other transgender women take puberty blockers and never experience endogenous puberty, yet the Act indiscriminately bars them from participation in women’s student athletics, regardless of their testosterone levels....

Second, as the district court found, there was very little anecdotal evidence at the time of the Act’s passage that transgender women had displaced or were displacing cisgender women in sports or scholarships or like opportunities....

We must “reject measures that classify unnecessarily and overbroadly by gender when more accurate and impartial lines can be drawn.”...

We agree with the district court that, contrary to the Act’s express purpose of ensuring women’s equality and opportunities in sports, the sex dispute verification process likely will discourage the participation of Idaho female students in student athletics by allowing any person to dispute their gender and then subjecting them to unnecessary medical testing and genital inspections. Because the Act’s means undermine its purported objectives and impose an unjustifiable burden on all female athletes in Idaho, the district court did not abuse its discretion by finding that the sex verification provision likely would not survive heightened scrutiny....

Judge Christen dissented in part, contending that the verification procedure discriminates on the basis of the team an athlete chooses to join, not on the basis of sex. She also contends that the trial court's injunction is not sufficiently specific or sufficiently tailored.  UPI reports on the decision.

Catholic Schools Sue Over Rules for Inclusion in Colorado's Universal Preschool Funding

Suit was filed this week in a Colorado federal district court by the Catholic Archdiocese of Denver and two Catholic schools challenging the restrictions imposed on participation in Colorado's universal preschool funding program. The complaint (full text) in St. Mary Catholic Parish in Littleton v. Roy, (D CO, filed 8/16/2023) alleges that plaintiffs' free exercise and free speech rights were infringed by conditions that did not allow giving preference to Catholic families. Rules did allow preference for members of the church's congregation, but not for a broader religious preference. The complaint also alleged that the program's non-discrimination requirements prevent Catholic schools from requiring teachers. administrators and staff to abide by Catholic teachings on marriage, gender and sexuality; from considering whether a student or family has identified as LGBTQ; and from assigning dress requirements, pronoun usage and restroom use on the basis of biological sex. Becket issued a press release announcing the filing of the lawsuit.

Challenge To Maine's Elimination of Religious Exemption To School Vaccination Mandate May Move Ahead

Fox v. Makin, (D ME, Aug. 16, 2023), is a challenge to the Maine legislature's removal of religious exemptions from the state's school vaccination requirements.  Plaintiffs' son was denied a religious exemption by the principal and vice-principal of the son's school at the direction of the state commissioner of education. In the case, a Maine federal district court allowed plaintiffs to move ahead with their claims for injunctive and declaratory relief against the Commissioner, principal and vice-principal. The court held that plaintiffs' free exercise claim was subject to strict scrutiny, finding that the vaccination law lacked general applicability. The court said in part:

Maine continues to permit multiple non-religious exemptions, including a 90-day grace period for non-religious students, a medical exemption, and the IEP sunset provision, all of which arguably undermine its student health and safety interests while restricting religious exemptions that may pose comparable risks....

The Court finds it plausible that section 6355 is not narrowly tailored to advance Maine’s interests.

The court also found that defendants had qualified immunity from damage claims, saying in part:

... [I]t was not clearly established during the period alleged in the Amended Complaint that failing to permit a religious exemption to mandatory school vaccination (while providing others certain non-religious exemptions) violates religious objectors’ constitutional rights. Thus, even if the Court were to assume – without deciding – that section 6355 is unconstitutional, it would be “unfair to subject” the Commissioner and the individual School Defendants “to money damages for picking the losing side of the controversy” by complying with section 6355....

North Carolina Legislature Overrides 3 Vetoes Relating To Transgender Youth and To Parental Rights

On Wednesday, the North Carolina legislature overrode Governor Roy Cooper's vetoes of three bills. House Bill 808 (full text) (veto message) (override vote) prohibits medical professionals from performing gender transition surgery on minors or prescribing puberty blockers or cross-sex hormones to minors. It also creates a cause of action for damages for minors who suffer physical, psychological, emotional, or physiological harm from such procedures or medication and allows minors to bring such actions up until they are 43 years old or 4 years after discovery of the injury and its cause, whichever is later.

House Bill 574 (full text) (veto message) (override vote) bars transgender women from middle school, high school and college athletic teams. The ban applies to all middle and high schools (specifically including church and religious schools) that are members of an organization that administers interscholastic athletic activities. Private church or religious schools that are not members of such an organization must comply with the ban in any game in which it is playing against a team that is a member. At the college level (public or private) the ban applies to all teams that are part of an intercollegiate athletic program. The law also creates a cause of action for any student who is deprived of an athletic opportunity or who is injured or likely to be injured by a violation of the Act. It also creates a cause of action for any student who is subject to retaliation for reporting a violation or any institution or employee harmed for complying with the law.

Senate Bill 49 (full text) (veto message) (override vote), labeled the "Parents' Bill of Rights", has broad provisions giving parents the right to direct the education, upbringing, moral or religious training and health care decisions of their children. It gives parents the right to seek medical or religious exemptions from immunization requirements and to withhold consent to reproductive health and safety education programs. It gives parents the right to access medical records of their children and to ban biometric scans, DNA storage or certain voice and video recordings of their children. It requires (with law enforcement exceptions) parental notification by the state of any suspected criminal offense against their children. It allows parents to review records of materials their children have borrowed from a school library.

The law includes extensive provisions on parental involvement in their children's public school education. Parents must be given information about a broad range of items relating to student progress, including "the course of study, textbooks, and other supplementary instructional materials for his or her child and the policies for inspection and review of those materials." The law requires procedures to notify parents of student physical and mental health, including advance notification of any name or pronoun changes used for the student.

  The law also provides:

Instruction on gender identity, sexual activity, or sexuality shall not be included in the curriculum provided in grades kindergarten through fourth grade, regardless of whether the information is provided by school personnel or third parties.

CNN reports on the new laws.

5th Circuit Says FDA Improperly Reduced Abortion Pill Restrictions, But Prior Supreme Court Order Keeps FDA Rules In Effect During Appeals

In Alliance for Hippocratic Medicine v. U.S. Food & Drug Administration, (5th Cir., Aug. 16, 2023), the U.S. 5th circuit Court of Appeals upheld the portions of a Texas federal district court's orders that stayed actions taken by the FDA in 2016 and 2021 regarding the administration and distribution of the abortion pill mifepristone. The 2016 action increased the gestational age when the drug can be used from 49 to 70 days. It also lightened certain other dosage and prescribing restrictions. In 2021, in connection with the Covid epidemic, the FDA removed the in-person prescribing requirement for mifepristone, allowing it to be sent by mail. The court found that doctors have standing to challenge these actions, among other things citing conscience injuries to objecting doctors.  Challenges to two other FDA actions on mifepristone were rejected on standing and statute of limitations grounds.

The court concluded that plaintiffs are likely to succeed on their Administrative Procedure Act challenges that the FDA's actions were arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. This was the case as to the 2016 action because the FDA did not consider the cumulative effect of the changes it was proposing. They were likely to succeed on their challenge to the 2021 action because the FDA did not adequately study adverse event data.

However, as the court recognized, the U.S. Supreme Court has already ordered a stay of all the district court's orders until federal appeals are completed. Thus the 5th Circuit's action does not reinstate the district court's bans. 

Judge Ho concurred in part and dissented in part, saying tht he would also hold that the initial approval of mifepristone in 2000 should be set aside.

NPR reports on the decision.

Pro-Life Protesters Can Continue Viewpoint Discrimination Suit Over D.C. Defacement Ordinance

 In Frederick Douglas Foundation, Inc. v. District of Columbia, (DC Cir., Aug.15, 2023), the U.S. Court of Appeals for the D.C. Circuit held that a pro-life group can move ahead with its viewpoint discrimination claim against the D.C. government, but not its equal protection claim.  Plaintiffs alleged that D.C. did not enforce its defacement ordinance against "Black Lives Matter" protesters who chalked or painted protest signs on public and private property. However it did enforce the ordinance against pro-life protesters who wished to paint or chalk "Black Pre-Born Lives Matter" on sidewalks or streets. The court said in part:

... [T]o make out a First Amendment selective enforcement claim, the Foundation is not required to allege discriminatory intent. Viewpoint discrimination violates the First Amendment, “regardless of the government’s benign motive … or lack of animus toward the ideas contained in the regulated speech.”... “Innocent motives do not eliminate the danger of censorship.”...

The Foundation, in the alternative, frames its selective enforcement claim in terms of equal protection. To the extent a separate equal protection claim for viewpoint discrimination arises under the Fifth Amendment, the Foundation has failed to allege an essential element—purposeful discrimination. Even taking the facts in the light most favorable to the Foundation, we find it has not put forward plausible evidence of the District’s animus....

The First Amendment prohibits the government from favoring some speakers over others. Access to public fora must be open to everyone and to every message on the same terms. The District may act to prevent the defacement of public property, but it cannot open up its streets and sidewalks to some viewpoints and not others.... The Foundation has plausibly alleged that its members were similarly situated to individuals against whom the defacement ordinance was not enforced, and that the District discriminated on the basis of viewpoint when enforcing the ordinance. Because the Foundation has failed to adequately allege animus on the part of the District, however, its equal protection challenge fails.

Judge Wilkins filed a concurring opinion, saying in part:

In my view, even though the Foundation must meet the high bar of pleading purposeful discrimination to prevail on its First Amendment claim,.. the high standard is met here.

ADF issued a press release announcing the decision.

 

Injuring Police Chief's Reputation At His Church Was Not Free Exercise Violation

In Chesley v. City of Mesquite,(D NV, Aug. 14, 2023), a Nevada federal district court dismissed a suit brought by Joseph Chesley, Mesquite's former police chief, against the city, its former city manager and others for spreading rumors that Chesley had inappropriate sexual relations with women (including underage women), that he had embezzled money from a local business and improperly approved police overtime. Among others, the rumors were spread to members of Chesley's church.  As one of his claims, Chesley alleged that his free exercise rights were violated because the rumors and the city's inaction in stopping the rumors from spreading destroyed his reputation at his place of worship and impaired his ability to take part in worship at his church. In dismissing this claim, the court said in part:

Under circumstances such as these, where “the government action is neither regulatory, proscriptive, or compulsory” the question is whether the challenged government action “substantially burdens a religious practice and either is not justified by a substantial state interest or is not narrowly tailored to achieve that interest.” ... Chesley has not pled any substantial burdening of his Free Exercise Rights. The harms he alleges—a “destroyed” reputation at his church, and consummate discomfort worshipping there—are subjective, and the Ninth Circuit is clear that “a subjective chilling effect on free exercise rights is not sufficient to constitute a substantial burden.”...

7th Circuit: Parties Cannot Force A Constitutional Ruling On School Aid By Rejecting Statutory Alternative

In St. Augustine School v. Underly, (7th Cir., Aug. 14, 2023), is the latest installment in a case that arose in 2015 and has been litigated up and down the federal and Wisconsin state court system ever since. A Wisconsin statute provides transportation benefits for private religious schools, but only for one school from a single organizational entity in each attendance district.  At issue in this case is whether two Catholic schools in the same attendance district (one billing itself as a "Traditional Catholic School") were sufficiently linked that only one of them could receive the transportation assistance. 

The state Superintendent had concluded that St. Augustine School could not receive benefits because another Catholic school in its attendance district was already getting them. After receiving guidance from the Wisconsin Supreme Court, in December 2021 the U.S. 7th Circuit held that the Superintendent violated Wisconsin statutory law in denying transportation benefits to St. Augustine School, and so remanded the case to the district court for it to impose a remedy. (See prior posting.) Plaintiffs, however, were unhappy because they wished to obtain a ruling on the federal constitutional issues involved, so they made no argument for damages under state law.  The district court thus only issued a declaratory judgment in favor of St. Augustine, denying an injunction and damages. Now on appeal of that decision, the 7th Circuit said in part:

The remaining question is what to do in light of the fact that the Forros unambiguously waived their right to relief under their state-law theories. If by so doing they hoped to force us to reach the federal theories, they were mistaken. We will not allow ourselves to be manipulated into constitutional adjudication in this manner; parties do not have the right to compel a court to write what would essentially be an advisory opinion on a theory that it did not need to reach. St. Augustine IV provided plaintiffs with a clear path to recovery that they chose to forego. Litigants are held to their choices, even when the consequences are harsh. We accordingly see no error in the district court’s decision to treat their requests for damages and injunctive relief under state law as waived and to issue only a declaratory judgment....

Judge Ripple dissented, arguing that the court should reach the federal constitutional issues, saying in part:

As this case has traveled its circuitous path, a regrettable analytical fog has progressively obscured the good faith and thoughtful attempts of all actors, judges and lawyers, to resolve this case. Today, in my view, despite its best efforts, the majority, impeded by this fog, further obscures the matter by drawing the wrong conclusions from this muddied procedural history and, in the process, by departing from the mandate of the Supreme Court of the United States dated July 2, 2020. I respectfully dissent.

6th Circuit: Kentucky Governor Had Qualified Immunity For Covid School-Closing Order

 In Pleasant View Baptist Church v. Beshear, (6th Cir., Aug. 14, 2023), the U.S. 6th Circuit Court of Appeals held that Kentucky Governor Andy Beshear had qualified immunity in a suit challenging his Covid order temporarily barring in-person classes at public and private schools. The suit was brought by a group of churches, private religious schools and parents alleging that the 2020 Covid order violated their free exercise rights (as well as parental rights to send their children to religious schools and  their right to freedom of association). Plaintiffs' request for declaratory relief became moot when the orders were lifted. However, their claims for monetary damages did not. Affirming the district court's finding of qualified immunity, the appeals court said in part:

Neither this court’s nor the Supreme Court’s precedent clearly established that temporarily closing in-person learning at all elementary and secondary schools would violate the Free Exercise Clause when Governor Beshear issued EO 2020-969 on November 18, 2020. As the Governor points out, Plaintiffs have not provided this court with any cases denying a government official qualified immunity for their immediate public-health response to the COVID-19 pandemic.... Because the Governor issued EO 2020-969 in the midst of a vibrant debate on this constitutional issue, he is thus entitled to a qualified-immunity defense. Accordingly, because Plaintiffs cannot demonstrate that a clearly established right existed at the time Governor Beshear issued EO 2020-969....

Judge Murphy filed a concurring opinion.

MD Supreme Court: State Law Sex Discrimination Ban Does Not Include Sexual Orientation Discrimination

In Doe v. Catholic Relief Services, (MD Sup. Ct., Aug. 14, 2023), the Maryland Supreme Court, responding to certified questions from a federal district court, refused in interpreting state law to follow the analogous holding of the U.S. Supreme Court in its Title VII Bostick decision.  The Maryland court held that, in light of the separate prohibition on sexual orientation discrimination in state law, the ban on sex discrimination in the Maryland Fair Employment Practices Act does not also cover discrimination on the basis of sexual orientation. It went on to hold that in light of the specific ban on pay disparities based on sex or gender identity, the Maryland Equal Pay for Equal Work Act does not bar pay disparities based on sexual orientation. Finally the court held that the exemption in the Maryland Fair Employment Practices Act for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion, sexual orientation, or gender identity to perform work connected with the activities of the religious entity" covers "claims brought by employees who perform duties that directly further the core mission (or missions) of the religious entity." It is not co-extensive with the ministerial exception doctrine.

Justice Hotten, joined by Justice Eaves, filed a dissenting opinion contending that the ban on sex discrimination in both statutes includes sexual orientation discrimination. They would also read the religious institution exemption more narrowly than the majority, contending that it only applies when a nexus exists between the employer’s religious activities and the work that an employee performs.

The underlying case that led to the certified questions involved a complaint by a Program Data Analyst employed by Catholic Relief Services who was denied spousal health benefits for his same-sex spouse.

[Thanks to Arthur Spitzer for the lead.]

Baylor Gets DOE Assurance That It Is Exempt From Title IX Sexual Harassment Rules

In a July 25 letter (full text), the U.S. Department of Education Office of Civil Rights has assured Baylor University that, as a university controlled by a religious organization, it is exempt from various regulations under Title IX to the extent that they are inconsistent with the University's religious tenets.  As reported by the Religious Exemption Accountability Project, in the past many religious universities have been assured they are exempt from Title IX regulations barring discrimination on the basis of sexual orientation, gender identity, marital status, sex outside of marriage, pregnancy or abortion. (See prior posting.) For the first time, however, Baylor was also assured that it is exempt from sexual harassment rules. More specifically, it was assured that compliance with its religious tenets by the University or its students would not constitute “unwelcome conduct” under the Department’s definition of “sexual harassment” under Title IX. 

Baylor's letter requesting a ruling (full text) was filed in response to several complaints filed with the DOE Office for Civil Rights. The letter reads in part:

The University does not discriminate on the basis of sexual orientation or gender identity or expression per se, but it does regulate conduct that is inconsistent with the religious values and beliefs that are integral to its Christian faith and mission....

The OCR complaints at issue here allege that Baylor violated OCR's Title IX regulations by its application of its Statement on Human Sexuality, Sexual Conduct Policy, Civil Rights Policy, Theological Seminary Policy, Baptist Faith and Message of 1963, and Truett Handbook to its campus community, both as a general matter and specifically in three situations: (1) the University's alleged decision to deny applications for an official charter for Gamma Alpha Upsilon, (2) the University's alleged response to notice that students were subjected to harassment based on their sexual orientation and/or gender identity, (3) and the University's alleged decision to pressure University media to not report on LGBTQ events and protests in September and October 2021.

According to an extensive report on Baylor's request, Baptist News Global says in part:

Baylor Assistant Vice President for Media and Public Relations Lori Fogleman said Baylor is responding to the “expanded definition of sexual harassment” under Title IX from the Biden administration, which includes discrimination against LGBTQ people.