Ecclesiastical Abstention Doctrine Requires Dismissal of Pastor's Allegations of Sham Investigation to Oust Him

 In Weems v. Association of Related Churches, (MD FL, Dec. 19, 2024), a Florida federal district court dismissed on ecclesiastical abstention grounds a suit alleging tortious interference and conspiracy brought by Charles Weems, the former senior pastor and co-founder of Celebration Church and by his wife, the other co-founder. Plaintiffs allege that defendants hatched a plan to oust him as senior pastor because his vision for the church would lead to reduced financial contributions to defendant's church planting activities. Weems alleged that, based on manufactured evidence, the church initiated a sham investigation of him to determine if he had engaged in improper financial practices and had failed to fulfill his duties as Senior Pastor. Targeting of Weems eventually led to his resigning. The court said in part:

... [W]hile Plaintiffs frame their claims as tortious interference and conspiracy, these claims cannot be decided without resolving whether Celebration Church investigated Pastor Weems for legitimate religious reasons, or because of the tortious conduct of Defendants.... Such an inquiry would result in the Court entangling itself in matters of “theological controversy, church discipline, [and] ecclesiastical government,” which the ecclesiastical abstention doctrine squarely prohibits....

Indiana Supreme Court Lets Preliminary Injunction Against Abortion Ban When It Violates Religious Beliefs Stand

Last week, the Indiana Supreme Court, by a vote of 3-2, refused to review at this stage in the litigation a preliminary injunction entered by lower courts in a suit claiming that the state's Religious Freedom Restoration Act is violated when plaintiffs are prohibited by Indiana's abortion law from obtaining an abortion that their religious beliefs direct them to obtain. (See prior posting.) In Individual Members of the Medical Licensing Board of Indiana v. Anonymous Plaintiff 1, (IN Sup. Ct., Dec. 10, 2024), the Order denying the petition to transfer the case to the Supreme Court was not accompanied by a majority opinion. However, Justice Molter joined by Justice Rush filed a concurring opinion saying in part:

This case involves an unusual preliminary injunction—the trial court temporarily enjoined state officials from enforcing the State’s abortion law, but only for a particular group of women who are not pregnant and therefore are not seeking an abortion. The Court of Appeals concluded that the trial court didn’t exceed its discretion by entering a preliminary injunction while the case continues to be litigated. But the panel also directed the trial court to narrow the preliminary injunction on remand. So thus far, this case is not stopping the defendants from doing anything. And we don’t yet know if it ever will, including because the defendants may ultimately prevail in the lawsuit....

I conclude the more prudent course is for the Court to review the case after a final judgment rather than following a preliminary injunction, which remains a work in progress and subject to more deferential appellate review. In essence, it is better that we review the trial court’s final answer rather than its first guess....

Justice Slaughter, joined by Justice Massa, filed a dissenting opinion, saying in part:

Our denial of transfer means the trial court’s “final answer” will lack the benefit of our current thinking. By saying nothing, we may leave the misimpression that the injunction’s only vulnerability is its scope. As my colleagues acknowledge, this case “presents transfer-worthy issues with previously undecided questions of statewide importance”.

Indiana ACLU issued a press release announcing the decision.

Cert Granted on Whether Medicaid Beneficiary Can Challenge Cutoff of Funds to Planned Parenthood

The U.S. Supreme Court yesterday granted review in Kerr v. Planned Parenthood, (Docket No. 23-1275, certiorari granted 12/18/2024) on the question of whether individual Medicaid beneficiaries have a private right of action to enforce the Medicaid Act’s any-qualified provider provision. The case arises from a challenge to South Carolina's termination of Medicaid funding to Planned Parenthood. This was Question 1 presented by the petition for certiorari, the issue on which the Supreme Court granted review. Here is the SCOTUSblog case page with links to pleadings and briefs in the case.

Hospital Employee's Vaccine Objections Were Religious

In Lavelle-Hayden v. Employment Dept., (OR App., Dec. 18, 2024), an Oregon state appellate court held that a hospital respiratory therapist who was denied a religious exemption from the hospital's Covid vaccine requirement should receive unemployment benefits. It held that the state Employment Appeals Board's (EAB) conclusion that the employee's objection to the Covid vaccine was secular or personal in nature, rather than religious, was not supported by substantial evidence. The court said in part:

First, the EAB appears to have overlooked the Supreme Court’s injunction that tribunals ordinarily must refrain from assessing the plausibility of a claim of religious belief, and to have read the record with unreasonable parsimony in view of that standard....

Second, the EAB drew unreasonable inferences from the fact that claimant’s church declined to provide her a letter in support of her exemption request. The EAB inferred that “the fact that claimant’s own religious leader refused to provide a letter weighs to some extent against finding that claimant’s opposition to taking the vaccine was rooted in religion.” The EAB also inferred that the fact “that the leader told claimant it might be ‘too political to get involved’ supports an inference that when claimant asked for the letter, the religious leader regarded claimant’s objection to receiving a vaccine to be based on her political beliefs, not religion.”... But that reasoning ... presupposes that one’s religious beliefs and political beliefs are necessarily mutually exclusive....

... [T]here is no basis on which to sustain the denial of benefits that is consistent with the evidence and Free Exercise Clause.

Circuit Court Nominee Says Anti-Muslim Prejudice Derailed His Confirmation

On Monday, Adeel Mangi, President Biden's nominee to fill a vacancy on the U.S. 3rd Circuit Court of Appeals, submitted a letter (full text) to the President acknowledging that the Senate will not confirm his nomination. (See prior related posting.) Mangi would have been the first Muslim to sit on a federal Circuit Court.  In his lengthy letter, Mangi attributed his inability to obtain Senate confirmation largely to anti-Muslim prejudice. The letter reads in part:

I saw in America a country where I could succeed based on my professional skill, hard work, and character regardless of my faith or background....

When my nomination then came before the Senate Judiciary Committee, I was prepared to answer any questions about my qualifications, philosophy, or legal issues. I received none. Instead, I was asked questions about Israel, whether I supported Hamas, and whether I celebrated the anniversary of 9-11. Even more revealing, however, was the tone. The underlying premise appeared to be that because I am Muslim, surely I support terrorism and celebrate 9-11.....

The pretext for these questions was that I had agreed to serve on an outside advisory panel for an academic center that was being established at a preeminent New Jersey Law School to combat bigotry and discrimination, including Islamophobia....

After Jewish groups came to my defense, these same attackers pivoted focus to a new absurdity, claiming that I supported the killing of police officers -- silently underpinned, in my view, by the notion that as a Muslim I surely support violence, including against law enforcement....

Resurgent efforts after the election towards confirmation were derailed by the deal in the Senate that denied all circuit nominees a vote....

 American Muslims are part of this nation's fabric and will not cower. This campaign was intended to make it intolerable for Muslims proud of their identity to serve this nation. It will fail. Our Constitution forbids religious tests for any Office of the United States and American Muslims will cherish that fundamental American value, even if others apply it only selectively....

Pittsburgh Post-Gazette reports on these developments.

Justice Department Sues Georgia City for Violating RLUIPA

On Monday, the Justice Department filed a lawsuit in a Georgia federal district court against the city of Brunswick, Georgia, alleging that the city violated RLUIPA by attempting to shut down The Well, a hospitality and religious resource center for homeless individuals. The complaint (full text) in United States v. City of Brunswick, Georgia, (SD GA, filed 12/16/2024), alleges in part:

2. Through its campaign to shut down The Well, including a mandatory closure order and a nuisance lawsuit, Brunswick imposed a substantial burden on the religious exercise of FaithWorks, and of The Well’s staff and leadership, without a compelling interest and without using the least restrictive means of achieving that interest, in violation of RLUIPA....

52. Operating The Well is an expression of faith that is substantially burdened by the City’s efforts to permanently close The Well. FaithWorks, which runs The Well, is an extension of the Methodist Church, and providing basic services to the poor and unhoused individuals are cornerstones of FaithWorks’ religious practice. FaithWorks and The Well are led by Reverend Culpepper and his staff of Christian ministers. And at The Well, staff members offer the opportunity for prayer and religious study to those who are interested....

57. Even if a compelling interest was implicated, the City cannot show that shutting down The Well or forcing FaithWorks to adopt new religious leadership is the least restrictive means of achieving the City’s purported interest. The City cannot show that shutting down The Well is necessary to protect safety, particularly when The Well has already adopted procedures that have addressed the City’s purported safety concerns, and has successfully operated under those procedures for over a year.

The Department of Justice issued a press release announcing the filing of the lawsuit.

Montana Supreme Court Upholds Preliminary Injunction Against Ban on Gender Affirming Care for Minors

In Cross v. State of Montana, (MT Sup. Ct., Dec. 11, 2024), the Montana Supreme Court upheld a trial court's preliminary injunction against enforcement of Montana's ban on medical or surgical treatment of minors for gender dysphoria.  The court said in part:

 ¶37 The statute’s impact on individual privacy rights triggers strict scrutiny review, which requires the State to demonstrate that “the legislation [is] justified by a compelling state interest and [is] narrowly tailored to effectuate only that compelling interest.” ...  Though the State has a compelling interest in “safeguarding the physical and psychological wellbeing of a minor,” a statute implicating their privacy rights must be narrowly tailored to serve that interest....  SB 99 affords no room for decision-making by a patient in consultation with their doctors and parents.  The statute is a complete ban, prohibiting individualized care tailored to the needs of each patient based on the exercise of professional medical judgment and informed consent.  

¶38 At this stage of the proceedings, the District Court conscientiously weighed the parties’ evidence.... Our role is not to reweigh conflicting evidence or to question a district court’s assessment of the strength of the evidence on a preliminary injunction appeal....

Justice McKinnon, joined by Justice Gustafson, filed a concurring opinion, saying in part:

I write separately because I believe Plaintiffs’ equal protection claim should likewise be addressed by the Court.

Justice Rice dissented in part, saying in part:

¶68 I concur with the Court’s holding affirming the District Court’s entry of a preliminary injunction enjoining SB 99’s medical restrictions.  A legislative prohibition of an approved medical procedure must satisfy the high bar of being narrowly tailored to serve a compelling state interest in addressing a bona fide health risk....

 ¶69 However, it should also be noted that both the medical and legal grounds regarding the subject treatment of minors addressed by SB 99 are moving under our feet, and the status quo itself is becoming a moving target, even as this litigation continues....

¶70 I would reverse the District Court’s enjoinder of the funding prohibition of SB 99...

Daily Montanan reports on the decision.

Recent Articles of Interest

From SSRN:

• Steven Douglas Smith, We Hold . . . What Truths? Further Reflections on the American Proposition, (Rice-Hasson Lecture, Delivered at Notre Dame Law School, November 1, 2024).
• Andrew C. Michaels, Ayahuasca and Religious Freedom, (October 15, 2024).
• Raphael Cohen-Almagor, Coercion by the Orthodox Minority in Israel, (October 28, 2024).
• Catherine E. Smith, Tanya Washington & Suzette Malveaux, Brief of Amici Curiae Scholars for the Advancement of Children’s Constitutional Rights in Support of Defendant-Appellees in St. Mary v. Roy, (October 24, 2024).
• Mark V. Tushnet, Some Thoughts About Free Speech and Hostile Environment Discrimination on College Campuses, (October 16, 2024).
• Bernard M. Levinson, In Memoriam Norbert Lohfink SJ (28 July 1928-23 September 2024), (Society of Biblical Literature In-Memoriam Archive (2024)).

From SSRN (Islamic Law):

• Ali Rod Khadem, Islamic Apocalyptic Justice, (Islamic Law and Society, Vol. 31, No. 3, p. 260 (2024)).
• A.B.M. Asrafuzaman & Mohammad Golam Sarwar, Recent Trends of Judicial Activism for the Advancement of Muslim Family Laws in Bangladesh: A Critical Appraisal, (September 12, 2020).
• Eleni Polymenopoulou, Sharia and Human Rights Law in the Constitutional Framework of Gulf States, (May 01, 2023).
• Zeeshan Rais Khattak, Examining Conditions of Maṣāliḥ Mursalah Fulfilling the Higher Objectives of Islamic Law (Maqāṣid al-Sharīʿah) in the Modern Age, (June 20, 2022).
• Rauf Iqbal, Muhammad Asghar Shazad, Abbas Abbas & Muhammad Akmal, Determinants of Performance of Insurance Companies having Window Takāful Operations in Pakistan, (Manchester Journal of Transnational Islamic Law & Practice, Vol 20, Issue 3, 2024).
• Madhushka Kannangara, The Transition from LIBOR to RFRs: Implications on Islamic Banking and Finance (May 23, 2024).

SNAP Work Requirement Did Not Violate Free Exercise Rights of Plaintiff's Adult Children

In Light v. Missouri Department of Social Services, (WD MO, Dec. 12, 2024), a Missouri federal district court dismissed a suit challenging the removal of plaintiff's four adult children from the SNAP (food stamp) program because they failed to comply the requirement to register for work and accept suitable employment offers.  According to the court:

Plaintiff alleges that participation of her four adult children in the SNAP work program is against their sincerely held beliefs under the Holy Bible New Testament KJV. Specifically, Plaintiff alleges that the work registration and training requirements would cause her children to give up their time to an employer placing them under ownership, and be placed in a position of a servant....

Plaintiff does not cite, and the Court has not found, any indication where the SNAP work and training requirements are not generally applicable. 

If a law is neutral and generally applicable courts will apply a rational basis review.... Courts uphold a valid and neutral law of general applicability if it is rationally related to a legitimate governmental purpose even if there is an incidental effect on religious belief.... SNAP was established to raise levels of nutrition among low-income households. To be eligible for the program both households and individuals had to adhere to certain eligibility requirements. This is a rationally related law to a legitimate government purpose of raising levels of nutrition among low-income households....

Supreme Court Grants Review of Wisconsin's Denial of Unemployment Comp Exemption for Catholic Charities

Yesterday, the U.S. Supreme Court granted review in Catholic Charities Bureau, Inc. v. Wisconsin Labor Review Commission, (Docket No. 24-154, certiorari granted 12/13/2024). (Order List). In the case, the Wisconsin Supreme Court by a vote of 4-3 held that Catholic Charities Bureau and four of its sub-entities are not entitled to an exemption from the state's unemployment compensation law. (See prior posting.) Catholic Charities' petition for certiorari asks the Supreme Court to decide if Wisconsin violated the 1st Amendment's religion clauses when it held that Catholic Charities activities are primarily charitable and secular so that the statutory religious organization exemption is not available to it. The SCOTUSblog case page has links to the pleadings and briefs filed in the case.

India's Supreme Court Orders Stay While It Considers Constitutionality of Place of Worship Act

The Hindu reports on a controversial Order issued yesterday by India's Supreme Court. The Order bars lower courts from accepting new lawsuits or entering orders in pending suits in which Hindu plaintiffs are attempting to reclaim temples destroyed by the Mughal Empire in the 16th century. Eighteen suits involving ten Muslim religious shrines are pending in lower courts. In 1991, India's Parliament passed the Place of Worship Act which prohibits the conversion of any place of worship into a place of worship for a different religion and provides that "the religious character of a place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that day." The Supreme Court is currently considering the constitutionality of the Place of Worship Act. It Order is designed to prevent a race in which lower courts attempt to issue orders ahead of the Supreme Court's ruling on the 1991 law. According to The Hindu:

Recently, Chief Justice Khanna’s Bench had to intervene after violence broke out and lives were lost in Sambhal following a local court order to survey the Shahi Jama Masjid site. The civil judge had passed an order on the basis of a suit that the mosque was built on a temple demolished by Mughal emperor Babar in 1526.

Britain Appoints New Special Envoy for Freedom of Religion or Belief

In a press release issued Wednesday, the United Kingdom's Foreign, Commonwealth and Development Office along with its Minister for Human Rights announced that David Smith, MP, has been appointed as the new UK Special Envoy for Freedom of Religion or Belief (FoRB). The press release said in part:

As Envoy, David will champion FoRB for all overseas, promoting tolerance and mutual respect through and alongside the UK’s global diplomatic network and engagements in multilateral fora. David will represent the UK in international discussions on FoRB, working closely with other special envoys, experts and civil society partners. This work supports the UK’s wider human rights efforts, underpinning our belief that human rights are universal.

[Thanks to Law & Religion UK for the lead.]

Christian Haven for Sex Trafficking Victims Sues to Receive Federal Funding

Gracehaven, a Christian organization that cares for young survivors of sex trafficking, filed suit this week in an Ohio federal district court challenging the county's refusal to contract with it to receive federal Title IV-E funding for foster care services.  The complaint (full text) in Gracehaven, Inc. v. Montgomery County Department of Job and Family Services, (SD OH, filed 12/9/2024), says in part:

12.  Because Gracehaven is a Christian ministry that requires all employees to share and live out its religious beliefs, it told Montgomery County that it was not waiving or surrendering its right to employ only those who share its faith by signing the contract, and that it would sign the contract “as is.”  

13. The County responded that it would no longer “move forward with the renewal” of the contract with Gracehaven because of the ministry’s religiously based employment practices.  ...

15. But Defendants’ position conflicts with federal law, which expressly allows religious organizations to prefer members of their own faith as employees. 

18. The United States Supreme Court has clearly established—indeed, has held three times in the past seven years—that the government “violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”

The complaint also alleges that the county's action violates its freedom of expressive association and its religious freedom rights under the Ohio Constitution. ADF issued a press release announcing the filing of the lawsuit.

Good News Clubs Sue California School District for Access

Suit was filed yesterday in a California federal district court by Child Evangelism Fellowship alleging that a California school district has prevented Good News Clubs from meeting in district elementary schools. The complaint (full text) in Child Evangelism Fellowship NORCAL, Inc. v. Oakland Unified School District Board of Education, (ND CA, filed 12/11/2024), alleges in part:

1. For over two years, Defendant OUSD and its officials have unconstitutionally and impermissibly prohibited CEF from hosting its Good News Clubs in public elementary school facilities owned by OUSD. The Good News Club provides free moral and character training to students from a Christian viewpoint and strategically meets at public schools after school hours for the convenience of parents. CEF’s Good News Club has enriched the emotional, physical, and spiritual well-being of students across OUSD for over a decade. 

2. ... CEF was forced to temporarily end its Good News Club meetings in 2020 due to COVID-19 but sought to resume its meetings starting in January 2023. Despite having a long and storied history of providing after-school enrichment programs to students in OUSD, numerous schools within OUSD inexplicably denied the Good News Club access to use OUSD facilities while allowing numerous secular organizations and activities to resume meeting after school hours.  

3. CEF seeks a judgment declaring Defendants’ discriminatory use policies unconstitutional, both on their face and as applied, under the Free Speech, Establishment, and Free Exercise Clauses of the First Amendment to the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment. CEF also seeks preliminary and permanent injunctive relief ... together with damages....

Liberty Counsel issued a press release announcing the filing of the lawsuit.

Texas Supreme Court Hears Arguments on Interpretation of "Religious Service Protections" Constitutional Amendment

Last Wednesday, The Texas Supreme Court heard oral arguments (video of full oral arguments) in Perez v. City of San Antonio. The court is being asked to respond to a certified question from the U.S. 5th Circuit Court of Appeals in a case in which members of the Lipan Apache Native American Church claim that improvements to a park that include tree removal and rookery management destroy their ability to use a sacred site in the park for certain religious ceremonies. The certified question involves interpretation of a provision in the Texas state Constitution that was adopted in response to restrictions imposed during the Covid pandemic.  The constitutional provision prohibits the state and localities from placing limits on religious services, without specifying whether the ban applies even in cases of a compelling governmental interest in doing so. (See prior posting.) The certified question reads:

Does the “Religious Service Protections” provision of the Constitution of the State of Texas—as expressed in Article 1, Section 6-a—impose a categorical bar on any limitation of any religious service, regardless of the sort of limitation and the government’s interest in that limitation?

The Texas Supreme Court has links to pleadings and briefs (including amicus briefs) filed in the case. Oral argument for appellants was presented by a faculty member from the University of Texas College of Law, Law and Religion Clinic. Religion News Service reports on the oral arguments.

9th Circuit Hears Oral Arguments on Whether EMTALA Pre-empts State Abortion Ban

Yesterday, the U.S. 9th Circuit Court of Appeals, sitting en banc, heard oral arguments (video of full oral arguments) in United States v. State of Idaho, (9th Cir., 12/10/2024). The case poses the question of whether the federal Emergency Medical Treatment and Labor Act that requires hospitals accepting Medicare to provide stabilizing emergency treatment to patients preempts state abortion bans when such treatment would involve pregnancy termination. Links to the numerous amicus briefs and court orders in the case are available at the Health Care Litigation Tracker. (See prior related posting.)

Supreme Court Denies Cert. In Dispute Over Standing to Challenge School Gender Identity Support Policy

On Monday, the U.S. Supreme Court denied review in Parents Protecting Our Children, UA v. Eau Claire Area School District, Wisconsin, (Sup. Ct., certiorari denied 12/9/2024). In the case, the U.S. 7th Circuit Court of Appeals held that a parents' organization lacked standing to challenge a school district's policy on Gender Identity Support for students. The Supreme Court denied certiorari over the dissents of Justices Kavanaugh, Alito and Thomas.  In a dissenting opinion written by Justice Alito and joined by Justice Thomas. Justice Alito said in part:

This case presents a question of great and growing national importance: whether a public school district violates parents’ “fundamental constitutional right to make decisions concerning the rearing of ” their children ... when, without parental knowledge or consent, it encourages a student to transition to a new gender or assists in that process. We are told that more than 1,000 districts have adopted such policies....

I am concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions....

Advocate reports on the Court's action.

Catholic Bishops, Pope Francis Call on President Biden to Commute Sentences of All Federal Death Row Prisoners to Life in Prison

According to Catholic News Agency:

The U.S. Conference of Catholic Bishops (USCCB) on Monday launched a campaign urging Catholics to contact outgoing President Joe Biden and ask him to commute the death sentences of the 40 men currently on federal death row to life in prison.

The USCCB Action Center posted online a statement calling on individuals to urge the President to commute the sentences.  The webpage contains a suggested letter to the President and provides a form for sending and posting the request online.

Meanwhile, on Sunday in the Vatican, Pope Francis joined in the call for commutation. In his Sunday Angelus, he said in part:

Today, it comes to my heart to ask you all to pray for the prisoners who are on death row in the United States. I believe there are thirteen or fifteen of them. Let us pray that their sentence be commuted, changed. Let us think of these brothers and sisters of ours and ask the Lord for the grace to save them from death.

Neither the Bishops' statement nor that of the Pope makes mention of President Biden's Roman Catholic faith.

Today Is Human Rights Day

Today is Human Rights Day marking the 76th anniversary of the adoption of the Universal Declaration of Human Rights by the United Nations General Assembly. Article 18 of the Declaration provides:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Yesterday President Biden issued a Proclamation (full text) declaring today to be Human Rights Day, and the week beginning today as Human Rights Week. The Proclamation declares in part:

Today, our country continues to stand with our partners and allies to defend human rights and fundamental freedoms around the world — from combatting threats to silence and intimidate human rights defenders like journalists to championing democracy, fair elections, and the universal human rights to freedoms of association, peaceful assembly, religion, and expression.  When crises erupt, we protect civilians from mass atrocities, promote accountability for those responsible for human rights violations and abuses, seek to free political prisoners, and create space for civilian dialogue.

2nd Circuit: Lawyers Have Standing to Challenge Bar Rule That Limits Comments on Transgender and Religious Subject Matter

In Cerame v. Slack, (2d Cir., Dec. 9, 2024), the U.S. 2nd Circuit Court of Appeals held that two Connecticut lawyers have standing to bring a pre-enforcement challenge to a state Rule of Professional Conduct which prohibits lawyers from engaging in harassing or discriminatory conduct against members of various protected classes in the practice of law. It bars harassment or discrimination on the basis of  race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status. Commentary to the Rule defines discrimination as including harmful verbal conduct directed at an individual that manifests bias or prejudice. The attorneys allege that they often speak out on legal blogs, in articles and legal seminars in ways that could be construed as personally derogatory.  According to the court:

Moynahan and Cerame ... allege... that “[t]here are numerous examples of speech” fully protected by the First Amendment that members of the Connecticut bar will be reluctant to engage in, given the fear of a misconduct complaint...."  These include using “the pronoun associated with a transgender individual’s biological sex when addressing that individual”; using the term “‘gender preference’ rather than ‘gender orientation’”;  ... and publishing cartoons that “satiri[ze] or mock[]” “a religious deity”..... 

Appellees argue that the commentary to Rule 8.4, providing that an attorney “does not violate paragraph (7) when the conduct in question is protected under the first amendment to the United States constitution,”  ...“unambiguously shows that the Rule does not proscribe protected speech”....

Although the First Amendment carve-out may make it more likely that the SGC will conclude that some speech that would otherwise fall within the text of Rule 8.4(7) is not in fact proscribed, the carve-out is not enough, on its own, to render Appellants’ fear of a misconduct complaint and its professional repercussions “imaginary or wholly speculative” for Article III purposes...

At this stage in the proceedings, Appellants have alleged plausibly that they intend to engage in speech proscribed, at least arguably, by a recently enacted, focused regulation.  This gives rise to a credible threat of enforcement.

Reuters reports on the decision.