Religion Clause

Monday, December 09, 2024

Teacher Sues After Being Suspended for Having Books With LGBTQ+ Characters in Her Classroom

A third-grade teacher in the southern Ohio village of New Richmond filed suit last week in an Ohio federal district court seeking damages for the 3-day suspension imposed on her for having four books in her classroom's book collection that have LGBTQ+ characters in them. The school claimed that the books violated the District's Policy 2240 on Controversial Issues in the Classroom. The complaint (full text) in Cahall v. New Richmond Exempted Village School District Board of Education, (SD OH, filed 12/2/2024), alleges in part:

12. Plaintiff Karen Cahall maintained these books in her classroom amongst over one hundred other books spanning a wide variety of subject matters in furtherance of her sincerely held moral and religious beliefs that that all children, including children who are LGBTQ+ or the children of parents who are LGBTQ+, deserve to be respected, accepted, and loved for who they are....

50. During the course of her employment with defendant New Richmond, other teachers, staff and administrators have publicly displayed insignias and symbols of their religious beliefs in the presence of students, including but not limited to Christian crosses worn as jewelry, that are more visible to students than the books identified herein, without any consequence....

70. New Richmond Board Policy No. 2240 is unconstitutionally vague ... because it fails to provide fair notice to plaintiff Karen Cahall and other teachers ... of what they can and cannot maintain in their classrooms....

81. By using New Richmond Board Policy No. 2240 to suspend plaintiff Karen Cahall ... based upon a perceived community objection to plaintiff Karen Cahall’s sincerely held moral and religious beliefs, defendant Tracey Miller unlawfully and with discriminatory intent determined that plaintiff Karen Cahall’s religious viewpoints and beliefs were unacceptable, in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.....

87. By using New Richmond Board Policy No. 2240 to suspend plaintiff Karen Cahall ..., defendant Tracey Miller unlawfully and with discriminatory intent determined that plaintiff Karen Cahall’s moral and religious viewpoints and beliefs were unacceptable in comparison to the moral and religious viewpoints of others. in violation of the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution.

Cincinatti Enquirer reported on the lawsuit.

Saturday, December 07, 2024

Street Preacher Who Refused to Leave Restricted Area Around Kentucky Derby Loses Challenges to His Arrest

In Blankenship v. Louisville-Jefferson County Metro Government, Kentucky, (WD KY, Dec. 6, 2024), a Kentucky federal district court dismissed free speech, free exercise and vagueness challenges to action by local law enforcement against a street preacher, Jacob Blankenship, who refused to leave a restricted area around Churchill Downs on Kentucky Derby Day. The Court said in part:

... [I]f the restriction of Blankenship’s speech was content-neutral, it makes no difference whether Blankenship was arrested in a traditional or limited public forum....

[B]ecause the restrictions of access to the permitted and ticketed areas served purposes unrelated to the content of speech, those restrictions were content-neutral. The purpose of establishing the permitted area—facilitating ingress and egress for Churchill Downs—can be justified without reference to the content of any speech.... Accordingly, Blankenship’s free speech claim calls for intermediate scrutiny....

...Those restrictions survive intermediate scrutiny. The ticketed area was narrowly tailored to serve Metro’s significant interests in traffic control and public safety. It also left open ample alternative channels for Blankenship to share his message with essentially the same audience.....

The purpose of Metro’s permitting scheme is not to infringe upon or restrict religious practices.... The ticketed area restricted Blankenship’s preaching no differently than it restricted non-religious conduct....

... Because the ticketed area’s restrictions only incidentally effected Blankenship’s preaching, on his free exercise claim, Metro and Young are entitled to judgment as matter of law....

Because Blankenship has not tethered his due process void-for-vagueness claim to any liberty or property interest, it fails as a matter of law.

Thursday, December 05, 2024

Ministerial Exception Is Affirmative Defense, Not Jurisdictional Bar

In Matter of Ibhawa v New York State Division of Human Rights, (NY Ct App, Nov. 26, 2024), New York's highest appellate court reversed a lower appellate court's dismissal of a priest's hostile work environment claim because the Appellate Division had treated the ministerial exception doctrine as a jurisdictional bar rather than as an affirmative defense. The state Division of Human Rights had dismissed both the claim of racial and national origin discrimination and the hostile work environment claim by a Black Nigerian Catholic priest who was employed as a parish administrator. On appeal ultimately to the New York Court of Appeals, the court remanded the hostile work environment claim to the Division of Human Rights, saying in part:

... [O]nce the Diocese raised the ministerial exception as one of several affirmative defenses, the question confronting DHR was not whether the exception limited its power to consider Ibhawa's claim, but whether any of the Diocese's affirmative defenses—including the two statutory defenses raised by the Diocese—established that the case could not proceed beyond its current stage....

Because DHR erred in treating the ministerial exception as a jurisdictional bar rather than an affirmative defense, its determination was affected by an error of law. In reaching that conclusion, we express no view on whether any of the Diocese's defenses are meritorious.

[Thanks to John Melcon for the lead.]

Wednesday, December 04, 2024

9th Circuit Narrows Preliminary Injunction Against Idaho's Abortion Trafficking Law

In a 2-1 decision in Matsumoto v. Labrador, (9th Cir., Dec. 2, 2024) the U.S. 9th Circuit Court of Appeals significantly narrowed an Idaho federal district court's preliminary injunction against enforcement of the state's ban on assisting a minor in various ways to obtain an abortion without her parent's consent. The majority concluded that plaintiffs were likely to succeed only in their challenge to one part of the law.

Idaho Code §18-623 provides:

An adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion ... or obtains an abortion-inducing drug for the pregnant minor to use for an abortion by recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking.

The majority held that the statute is not void for vagueness, nor does it burden the right of expressive association. It concluded, however, that the statute's ban on "recruiting" is an unconstitutionally overbroad regulation of protected speech. The court said in part:

... “[R]ecruiting” has broad contours that overlap extensively with the First Amendment. It sweeps in a large swath of expressive activities—from encouragement, counseling, and emotional support; to education about available medical services and reproductive health care; to public advocacy promoting abortion care and abortion access. It is not difficult to conclude from these examples that the statute encompasses, and may realistically be applied to, a substantial amount of protected speech....

In our view, the “recruiting” prong of Section 18-623 is neither integral nor indispensable to the operation of the statute as the Idaho legislature intended and therefore may be severed from the rest of the law. Without the “recruiting” prong, the statute criminalizes “harboring or transporting” a minor to “procure an abortion” “with the intent to conceal [the abortion] from the parents or guardian” of the minor— an intelligible crime that reaches the problems the legislature sought to rectify.

Judge Bea dissented in part. He argued that plaintiffs lack standing and therefore the district court should dismiss the suit. Idaho Capital Sun reports on the decision.

Supreme Court Will Hear Arguments Today on Tennesse Ban of Gender Affirming Medical Treatment for Minors

The U.S. Supreme Court this morning will hear oral arguments in United States v. Skrmetti. The case involves a challenge to Tennessee's ban on chemical, hormonal and surgical treatments of minors for gender dysphoria. In the case, the U.S. 6th Circuit Court of Appeals rejected Equal Protection and Due Process challenges to the law. A central issue in today's arguments will be whether transgender classifications trigger heightened scrutiny. SCOTUSblog has an extensive discussion of the issues in the case. More than 80 amicus briefs have been filed in the case. Links to all of them and additional pleadings in the case are available at the SCOTUSblog case page for the case.

Oral arguments will be streamed live at this link beginning at 10:00 AM. Argument audio will be archived at this link. A written transcript of the oral arguments will be available later today at this link.

Tuesday, December 03, 2024

Suit Challenging Anti-Zionist Proposed Curriculum Is Dismissed

In Concerned Jewish Parents and Teachers of Los Angeles v. Liberated Ethnic Studies Model Curriculum Consortium, (CD CA, Nov. 30, 2024), a California federal district court dismissed both for jurisdictional reasons and on the merits a suit by plaintiffs who were Jewish Zionists against a group that developed a set of teaching materials that the group hoped Los Angeles Public Schools would adopt. The court said in part:

According to plaintiffs, the challenged curriculum "denounces capitalism, the nuclear family, and the territorial integrity of the lower 48 states of the United States[,]"... and is designed "to expunge the idea of Zionism, and the legitimacy of the existence of the State of Israel, from the public square[.]"... Plaintiffs allege there is "rank discrimination embedded in the LESMC," ... because the challenged curriculum, among other things, "includes statements that the existence of the State of Israel is based on ethnic cleansing and land theft, apartheid and genocide" and that "Zionism is distinct from Judaism."... Because the challenged curriculum contains anti-Zionist material, plaintiffs allege that the curriculum is antisemitic.,,,

The court held that plaintiffs' claims were not ripe for judicial review and that plaintiffs lacked standing to bring their claims. It went on to also reject plaintiffs' equal protection and free exercise challenges on additional grounds. It held first that the defendants other than the school district were not state actors for purposes of the 14th Amendment. It went on to hold:

... [I]t is clear that the [complaint] is a direct "attack on curricula" — and "absent evidence of unlawful intentional discrimination, parents are not entitled to bring Equal Protection claims challenging curriculum content."... In short, plaintiffs' equal protection claims under both the California and United States constitutions must be dismissed....

In effect, the only hardship plaintiffs allege is that the existence of the challenged curriculum — and its possible adoption — offends them. But mere offense is insufficient to allege a burden on religious exercise....

In short, plaintiffs' claim that the challenged curriculum violates the Free Exercise Clause because it is intended "to suppress public expression of, and public support for, Zionist beliefs and to prevent Zionists from acting on their sincerely held religious belief[,]" ... must be dismissed, as plaintiffs have not adequately alleged a substantial burden on their religious exercise or practice.

The court also rejected claims under Title VI and the California Education Code. It then concluded:

... [I]t must also be noted that significant First Amendment concerns underlie plaintiffs' claims and requested relief.... In effect, plaintiffs seek to litigate the propriety and legality of a potential curriculum with which they disagree. Their claims thus conflict with the First Amendment in several respects, and are largely barred on that basis as well.

Various state law claims were also stricken under California's anti=SLAPP statute.

Noticias Newswire reports on the decision.

Monday, December 02, 2024

Saturday, November 30, 2024

Missouri AG Issues Opinion on Which Abortion Restrictions Remain Enforceable After Reproductive Freedom Amendment

Missouri Attorney General Andrew Bailey has issued Opinion Letter No. 22-2024, (Nov. 22, 2024) outlining the extent to which the state's restrictive abortion laws are still enforceable after voter adoption of a state constitutional amendment protecting abortion rights. The Opinion Letter was requested by Missouri Governor-Elect Mike Kehoe. The Attorney General's Opinion Letter reads in part:

... Amendment 3 was adopted-- just barely-- by a margin of 3%. In a contest where the "yes:" side was able in effect to rewrite the ballot summary language, receive tens of millions of dollars in funding from out of state, and outspent the "no" side 6 to 1, this tight margin suggests the result may be very different if a future constitutional amendment is put up for a vote.

Nevertheless, until and unless voters have an opportunity to vote again ..., Amendment 3 will render some statutes unenforceable.... Missouri statutes entirely prohibit elective abortions-- i.e., abortions other than those performed because of a medical emergency.... Amendment 3 ... will generally prohibit ... officials from enforcing these provisions....

... [T]here will remain some circumstances where these five statutes are enforceable....

First, under the express terms of the amendment, the government may still protect innocent life after viability....

Second, the Attorney General will continue to enforce these statutes in circumstances where parents do not consent to an adolescent minor obtaining an abortion. Under the U.S. Constitution, parents have a "fundamental right ... to make decisions concerning the care, custody, and control of their children."... This includes the "right to refuse unwanted medical treatment."... Amendment 3 cannot displace that federal constitutional right....

... [W]hen the Supreme Court reversed the Roe line of cases, ... the court restored longstanding parental rights.

Third... [t]he right of parents to forbid minors from obtaining abortions should not be misunderstood to somehow imply a right to force abortion on minors.

The same is true for adults coerced into abortion.... Amendment 3 does not give abortion clinics a right to perform abortions on women who have been coerced....

Missouri Independent reports on the Attorney General's Opinion Letter. [Thanks to Scott Mange for the lead.]

Friday, November 29, 2024

Texas AG Sues Church-Run Homeless Center Alleging It Has Become a Public Nuisance

Texas Attorney General Ken Paxton this week filed a lawsuit in state court against a church-run homeless center that receives over $1 million in funding from the city of Austin. The complaint (full text) in State of Texas v. Sunrise Community Church, Inc. d/b/a Sunrise Homeless Navigation Center, (TX Dist. Ct., filed 11/26/2024), alleges that the homeless shelter's operations constitute a statutory common nuisance and a common law public nuisance. The complaint says in part:

In South Austin, a once peaceful neighborhood has been transformed by homeless drug addicts, convicted criminals, and registered sex offenders. These people do drugs in sight of children, publicly fornicate next to an elementary school, menace residents with machetes, urinate and defecate on public grounds, and generally terrorize the surrounding community....

The state asks for injunctions closing the homeless center for one year. It also asks that the center be prohibited from operating within 1,000 feet of any school playground or youth center and from operating in any location "in a manner that frequently attracts patrons whose conduct violates the rights of neighborhood residents, school children, businesses, and the general public to peacefully use and enjoy the surrounding area."

Attorney General Paxton issued a press release announcing the filing of the lawsuit. Austin American- Statesman reports on the lawsuit.

Denial of Historic Preservation Grants to Churches Violates 1st Amendment

In The Mendham Methodist Church v. Morris County, New Jersey, (D NJ, Nov. 27, 2024), a New Jersey federal district court held that Rule 5.6.4 of New Jersey's Historic Preservation Grant program violates the 1st Amendment's Free Exercise Clause. Rule 5.6.4 bars grants for "property currently used for religious purposes or functions." The Rule was based on the state constitution's Religious Aid Clause which says in part: "[n]o person shall . . . be obliged to pay . . . taxes ... for building or repairing any church or ... place ... of worship....." In granting a preliminary injunction against denial of grants to plaintiff churches, the court said in part:

The Religious Aid Clause does not "zero in on any particular 'essentially religious' aspect of funding.... Therefore, Rule 5.6.4 is not narrowly tailored. It states that "[a]ny property that is currently used for religious purposes or functions is ineligible for Historic Preservation grant funding."... Plaintiff Mendham was informed in 2022 that it was ineligible for grant funding from the Fund because the application involved "the principle [sic] church building that is currently used for religious purposes."... Rule 5.6.4 does not limit funding to religious institutions to secular aspects of repair. Instead, it excludes the institutions from eligibility wholesale because they are religious institutions. Rule 5.6.4, as currently written and construed, therefore, likely violates the Free Exercise Clause.

The current construction of Rule 5.6.4 does not mean, however, that Locke [v. Davey] is not still good law, nor that any restriction on taxpayer funding of religious institutions is unconstitutional. Without deciding the issue, the Court notes that a different version of Rule 5.6.4 restricting mandated taxpayer funding of purely religious iconography or purposes may still survive under Locke. However, such a hypothetical, narrower provision is not before the Court.

Thursday, November 28, 2024

President Biden Issues Thanksgiving Proclamation

Today is Thanksgiving. Yesterday, President Biden issued the formal Proclamation (full text) declaring today as a National Day of Thanksgiving. The Proclamation reads in part:

This Thanksgiving — the last one I will declare as President — I express my gratitude to the American people. Serving as President has been the honor of a lifetime. America is the greatest country on Earth, and there is so much to be grateful for. May we celebrate all that unites us — because there is nothing beyond our capacity if we do it together.

... I encourage the people of the United States of America to join together and give thanks for the friends, neighbors, family members, and communities who have supported each other over the past year in a reflection of goodwill and unity.

The National Archives website displays the 1941 Congressional Joint Resolution that finally fixed the fourth Thursday in November as the date for Thanksgiving Day, along with some interesting history surrounding the selection of the date.

Ohio Governor Signs Transgender Bathroom Bill

AP reports that that on Tuesday Ohio Governor Mike DeWine signed Senate Bill 104, the Protect All Students Act (full text of bill). The Act requires public and most private elementary and secondary schools as well as all public and private colleges and universities to designate multiple occupancy restrooms, locker rooms, changing rooms and shower rooms for use either by the male biological sex or the female biological sex. No school may have a multi-occupancy facility designated as open to all genders, nor may a school permit a member of the female biological sex to share overnight accommodations with members of the male biological sex. Transgender individuals may use single occupancy restrooms or faculty restrooms. According to AP, DeWine signed the bill out of public view and issued no statement regarding the signing.

Wednesday, November 27, 2024

British Court Says Husband May Use IVF Embryo for Surrogate Pregnancy After Wife's Death

In EF v. Human Fertilisation and Embryology Authority, (EWHC, Nov. 22, 2024), the England and Wales High Court (Family Division) held that Article 8 (Right to respect for private and family life) of the European Convention on Human Rights gives a court discretion to look outside of written consent forms to determine a wife's wishes regarding use of embryos created with her eggs and her husband's sperm. In the case, when the wife unexpectedly died, the husband sought access to their embryo for implantation in a surrogate. Standard consent forms signed by the parties did not contemplate this situation. The court said in part:

They are each active members of the J religion which has as one of its core beliefs the sanctity of life and the divine purpose of all life forms. A priest from J religion has filed a detailed statement describing the couples’ deep faith, in particular in the context of conceiving and raising a family evidenced by her reaction when she had an earlier miscarriage. AB believed every living being has a soul and in the J religion’s belief in reincarnation, and considered the divine soul enters the embryos at the point of conception....

EF’s evidence sets out why he is certain that AB’s wish was that their jointly created embryo be used posthumously with a surrogate in the event of her death, if she had been given the chance to do so....

I am satisfied Sch 3 HFEA 1990 should be read down to introduce an implied discretion for the court to accept evidence of consent provided other than in writing where a failure to do so would result in a breach of Art 8. This conclusion does not go against the grain of the legislation, it supports the fundamental principle that the wishes of gamete providers should be paramount. It does not dispense with the requirement of consent, it provides for the possibility of it being provided other than in writing in circumstances where there is clear evidence of the gamete providers wishes and the only reason written consent was not given was due to the lack of opportunity to do so. There is nothing in the legislative history that suggests this situation was considered by Parliament.

While the court relied only on Article 8 in its decision, Applicant also argued:

In the context of Article 9 [Freedom of thought, conscience and religion]: (1) EF would be deprived of being able to honour or fulfil AB’s religious wishes for the embryo to be used in accordance with her beliefs to give the life form a chance. (2) If unused the embryo would be left to perish which is contrary to both EF and AB’s strongly held religious beliefs....

Law & Religion UK reports on the decision, as does UK Human Rights Blog.

Tuesday, November 26, 2024

Nominee To 3rd Circuit Who Would Have Been First Muslim Circuit Court Judge Will Not Be Confirmed by Senate

New Jersey Globe reports that President Biden's nomination of Adeel Mangi to the U.S. Third Circuit Court of Appeals will not be approved before the current Congressional session ends. Mangi, born in Pakistan, would have been the first Muslim to sit on a federal Circuit Court. Mangi is a partner in the New York law firm of Patterson Belknap whose website says in part:

Mr. Mangi has ... litigated numerous high-profile civil rights cases. These included some of the most closely watched religious freedom cases of the Trump era, which involved two different Muslim communities denied permission to build mosques in Bernards Township and Bayonne.... Both cases eventually resulted in settlements under which the mosques were approved and the municipalities involved paid significant compensation to the affected Islamic groups.

New Jersey Globe reports:

... Mangi came before the Senate Judiciary Committee for two fraught hearings in December 2023 and January 2024.... Republicans interrogated Mangi over his role on an advisory board for the Center for Security, Race and Rights at Rutgers Law School, a controversial group that they said had become an antisemitic, anti-American hotbed under Mangi’s nose.

Top Senate Democrats ... defended Mangi from the attacks, noting that his role at the center was a limited one and accusing Republicans of using Islamophobia to sink Mangi’s history-making nomination. But three Democratic senators ... came out publicly against Mangi, which in such a closely divided Senate was enough to deny him the votes needed for confirmation.

9th Circuit Hears Arguments on Youth Ministry's Access to State Grants

Last week (Nov. 20) the U.S. 9th Circuit Court of Appeals heard oral arguments in Youth 71Five Ministries v. Williams (video of full oral arguments). In the case, the state of Oregon canceled $410,000 in grants to Youth 71Five when the state discovered that the Ministries only hires those that share its faith. This violates of the state's "Certification Rule" that bars grantees from discriminating in their employment practices. An Oregon federal district court denied the Ministries' request for a preliminary injunction. In August 2024, the 9th Circuit Court of Appeals issued an injunction pending appeal allowing 71Five to participate in the 2023-25 Oregon Youth Community Investment Grant Program. (See prior posting.) It also ordered an expedited schedule for briefing and arguing the appeal. That is the appeal which the 9th Circuit heard last week. World reports on the decision.

Missouri Trial Court Upholds State's Ban on Gender Affirming Care for Minors

In Noe v. Parson, (MO Cir. Ct., Nov. 25, 2024), a Missouri state trial court upheld the constitutionality of Missouri's ban on gender transition surgery for minors and its 4-year moratorium on puberty-blocking drugs and cross-sex hormones for minors for the purpose of treating gender dysphoria. It also upheld the state's ban on the use of state Medicaid funds for gender transition procedures. The decision, reflected in a 74-page opinion setting out extensive findings of fact and conclusions of law, comes in a facial challenge to Missouri's Save Adolescents from Experimentation (SAFE) Act. The court said in part:

This Court finds an almost total lack of consensus as to the medical ethics of adolescent gender dysphoria treatment....

Furthermore, the credible evidence shows that a vast majority of children who are diagnosed with gender dysphoria outgrow the condition....

Critically, Plaintiffs made the strategic decision to bring a facial challenge to the entirety of several provisions, meaning they must establish that "no set of circumstances exists under which the [provisions] would be valid."... They chose not to seek an as-applied exception, a carve-out exception, to the regulation. The Constitution does not permit a single judge to nullify the results of democratically enacted legislation where, as here, there is a medical dispute about the safety or efficacy of those interventions....

There is nothing arbitrary or irrational ... about putting in place a 4-year pause on interventions that medical authorities across the world have said lack any substantial evidentiary support....

Lambda Legal and ACLU of Missouri said they will appeal the decision. Missouri Independent reports on the decision.

Monday, November 25, 2024

Sunday, November 24, 2024

Food Ministry Can Move Ahead with RLUIPA and Free Exercise Claims Against City

In Gethsemani Baptist Church v. City of San Luis, (D AZ, Nov. 22, 2024), an Arizona federal district court refused to dismiss RLUIPA, 1st Amendment and state law claims brought against the city by a church that operates a Food Ministry. When the city adopted its current zoning code in 2012, it considered the Ministry a permitted pre-existing non-conforming use. In 2023, however, the city alleged that the nature of the Ministry's activities had changed so that it could no longer be considered a legal pre-existing non-conforming use in a residential zone. The Church sued claiming enforcement placed a substantial burden on its exercise of religion. The city argued in part that the Church needed to apply for a conditional use permit and could sue only if and when that was denied. The court rejected the city's motion to dismiss for lack of ripeness. It also concluded that the Church had adequately stated a claim that RLUIPA applies because the city made an individualized assessment of the use of the property. The court refused to dismiss the Church's 1st Amendment claim, finding that it had pled sufficient facts to establish a plausible entitlement to relief. Finally, it refused to dismiss plaintiff's claims brought under the Arizona Free Exercise of Religion Act.

Saturday, November 23, 2024

House of Representatives Passes Resolution Condemning Rise of Antisemitism

On Nov. 20, the U.S. House of Representatives by a vote of 388-21 gave final approval to House Resolution 1449 (full text) condemning the rise of antisemitism in countries around the world and encouraging states and international bodies to endorse and embrace the July 2024 Global Guidelines for Combatting Antisemitism. The "no" votes were triggered by a reference in one of the Whereas clauses of the resolution to the International Holocaust Remembrance Alliance's “working definition” of antisemitism. JNS reports on the House action. The Algemeiner reports on the opposition votes.