Georgia's Heartbeat Abortion Ban Is Held Invalid

In Sistersong Women of Color Reproductive Justice Collective v. State of Georgia, (GA Super. Ct., Nov. 15, 2022), a Georgia state trial court enjoined enforcement of two sections of Georgia's Living Infants Fairness and Equality (LIFE) Act which was enacted in 2019.  The court invoked Georgia's "Void Ab Initio" doctrine. Quoting a Georgia Supreme Court case decided in 1900, the court said:

The time with reference to which the constitutionality of an act of the general assembly is to be determined is the date of its passage, and, if it is unconstitutional, then it is forever void.

Applying this, the court concluded that Section 4 which bans most abortions once a fetal heartbeat is detected, and Section 11 which requires physicians to file a justification for any abortions where a fetal heartbeat was detected, both were void when enacted and never became the law of Georgia.  However, Section 10 which requires doctors to determine the presence of a human heartbeat before performing an abortion is valid since even before the Dobbs decision, it could be justified as providing the mother with more information about the state of her pregnancy. The court also refused to dismiss a challenge to a provision of the law that authorizes district attorneys to access medical records relating to abortions. ACLU of Georgia issued a press release announcing the decision. 

EEOC Commissioner, In Unusual Procedure, Targets Abortion Travel Benefits By Employers

 Bloomberg Law reported yesterday:

Republican EEOC Commissioner Andrea Lucas is deploying a rarely used agency procedure to silently initiate targeted discrimination probes against at least three companies providing their employees with abortion travel benefits....

The investigations triggered by Commissioner Charges are based on claims by Lucas that by favoring employees seeking abortions and not furnishing comparable benefits to pregnant workers or disabled workers, employers are violating the pregnancy discrimination ban in Title VII or the Americans with Disabilities Act. Bloomberg Law also reports that the EEOC's former general counsel, even though she no longer held a position with the agency after being fired by the Biden administration, last month sent letters to a number of employers warning them of the possibility of such actions by the EEOC.

Court Says Title IX and ACA Do Not Bar Transgender Discrimination

In Neese v. Beccera, (ND TX, Nov. 11, 2022), a Texas federal district court granted declaratory relief concluding that neither Title IX nor Section 1557 of the Affordable Care Act that incorporates Title IX's ban on sex discrimination prohibit discrimination on the basis of sexual orientation and gender identity.  At issue is a Notice and Guidance on Gender Affirming Care issued by the Department of Health and Human Services in March 2022 which is challenged by two physicians who make sex-specific medical decisions relevant to gender identity. The court reasoned that the Supreme Court's Bostock decision that interprets Title VII's prohibition of discrimination "because of" sex does not automatically carry over to Title IX that prohibits discrimination "on the basis of" sex. The court began its opinion as follows:

In his Bostock dissent, Justice Alito foresaw how litigants would stretch the majority opinion like an elastic blanket to cover categories, cases, and controversies expressly not decided. Justice Alito warned: "The entire Federal Judiciary will be mired for years in disputes about the reach of the Court's reasoning."...

And here we are....

The court reasoned in part:

Title IX presumes sexual dimorphism in section after section, requiring equal treatment for each "sex."...

Defendants' reinterpretation of Title IX through the Notification imperils the very opportunities for women Title IX was designed to promote and protect -- categorically forcing biological women to compete against biological men.

ADF issued a press release announcing the decision.

Pakistan Court Quashes Blasphemy Charge-- Dreams Are Not Criminal

 In Khan v. Station House Officer, (Lahore High Ct., Nov.11, 2022), a Pakistani appellate court held that Pakistan Criminal Code Sec. 295A that prohibits deliberate and malicious insulting of religious beliefs was not violated by petitioner when he began telling the public that he could fly and that he saw Allah and various of his companions in his dreams. The court said in part:

[T]he offence under section 295-A PPC is not made out. There is no allegation that the Petitioner did anything to offend any group of people or insult their religion or religious beliefs. Furthermore, the Assistant Advocate General could not point out any circumstances that might indicate malice on his part.....

FIR No. 337/2021 accuses the Petitioner of entertaining and propagating blasphemous notions but does not provide any details. He is facing prosecution for claiming that he can fly and for having frequent dreams in which he sees Almighty Allah and some holy figures. As discussed above, scientists have many theories about why dreams happen and their purpose, but they all agree that one can only dream while sleeping. Sleep is a cyclical process. It happens in five stages, each of which contributes to the body’s goal of strengthening and rejuvenation....

Albeit one can have several dreams every night, one cannot control them. A person cannot be prosecuted for what he sees in his dreams or for sharing his thoughts, visions, or emotions during those times with others....

It frequently happens that those accused of blasphemy have a mental condition....

Article 10A of the Constitution and the principle of fair investigation discussed above require that when a police officer investigates an offence, particularly one under Chapter XV of the Penal Code, he should determine whether the accused is of sound mind. He must apply to the competent forum for his psychiatric evaluation if he suspects mental illness.

Dawn reports on the decision. 

Recent Articles of Interest

From SSRN:

• Brady Earley, Religious Freedom 'with Chinese Characteristics', (May 19, 2022).
• Dhruv Patel, Settling the Unending Legal Battle for the Holy Site in Ayodhya: Revisiting the Ram Janmabhoomi – Babri Masjid Case, (November 9, 2022).
• David H. Schraub, Liberal Jews and Religious Liberty, (November 5, 2022).
• Naiomi Metallic, Aboriginal Rights, Legislative Reconciliation and Constitutionalism, (October 31, 2022).
• Daniela Alaattinoglu, Intersex Rights in the Icelandic Gender Autonomy Act, (February 2022).
• Reiko Kato & Etsuko Toyoda, Marital Surname System in Japan - Fūfubessei Issues and Disparate Impact of Civil Code Article 750 and Koseki (Family Registry) Law, (June 30, 2022).
• Cynthia Soohoo, After Dobbs, Are Rights for Zygotes, Embryos, and Fetuses Next?, (CUNY Law Review Blog (2022)).
• Fazal Ahmad Ahmadi, The Role of Imam Muhammad Bin Hassan Shibani in the Codification and Development of Islamic International Law, (November 3, 2022).
• Rosemary Teele Langford, Charities and the Fiduciary Paradigm, ((2022) 16 Journal of Equity).
• Rosemary Teele Langford & Malcolm Edward Anderson, Governance Duties and Conflicts of Interest in the Charities Sector: Australia and England & Wales Compared, ((2022) 28 Third Sector Review).

From SmartCILP:

• Patrick Hornbeck, A Nun, a Synagogue Janitor, and a Social Work Professor Walk up to the Bar: The Expanding Ministerial Exception, 70 Buffalo Law Review 695-780 (2022).
• Benjamin Schonthal, The Case for Religious Constitutions: Comparative Constitutional Law among Buddhists and Other Religious Groups, [Abstract], (47 Law & Social Inquiry 391-419 (2022)).
• Sagnik Dutta, Competing Allies: Legal Pluralism, and Gendered Agency in Mumbai's Sharia Courts, (47 Law & Social Inquiry 514-534 (2022)).

Claims Against Social Worker Who Questioned Foster Parents' Religion Is Dismissed

 In Sarmiento v. Marquez, (ND CA, Nov. 10, 2022), a California federal district court dismissed religious discrimination and retaliation claims against county social work personnel who attempted, ultimately unsuccessfully, to remove a foster child from plaintiffs' care. The court explained:

Plaintiffs contend that, as they were proceeding toward adoption of the child in their care, County social worker Luz Sanclemente asked Sarmiento whether she “[believed] in God,” and whether she “[believed] in Jesus Christ.” ... Plaintiffs allege that defendants thereafter sought to remove the child from their care in “retaliation for not appearing to be Christians.”

However, the court concluded:

Sanclemente’s query into plaintiffs’ beliefs ... did not at all “coerce [them] into acting contrary to their religious beliefs or exert substantial pressure on [plaintiffs] to modify [their] behavior and to violate [their] beliefs.” ... Plaintiffs do not identify any action they took differently based on Sanclemente’s questioning. Plaintiffs do not represent that Sanclemente offered a quid pro quo, such as continued custody of the child in exchange for plaintiffs’ conversion to Christianity....

A First Amendment claim for retaliation requires a “substantial causal relationship” between a plaintiff’s “constitutionally protected activity” and “adverse [government] action . . . that would chill a person of ordinary firmness from continuing to engage in the protected activity.”,,,

Here, the [complaint] only speculates that there was a relationship between (1) plaintiffs’ response to Sanclemente that they are not Christians and (2) defendants’ actions to remove the child from plaintiffs’ care....

Texas Prisons Must Adopt Formal Policy on Religious Rights in Execution Chamber

In Barbee v. Collier, (SD TX, Nov. 3, 2022), an inmate whose execution had been scheduled sought a court order from a Texas federal district requiring Texas to allow his spiritual advisor to be present with him in the execution chamber, to pray audibly with him and have physical contact with him, holding his hand, to confer a blessing on him. The Director of the Texas Department of Criminal Justice filed a series of affidavits assuring the court that these requests would be granted and moved dismiss the lawsuit as moot. The court, however, was unconvinced, saying in part:

In Ramirez [v.  Collier], the Supreme Court encouraged States to "adopt clear rules" and "streamlined procedures" that would protect an inmate's religious rights in the execution chamber.... TDCJ has not responded by enacting any formal policy guaranteeing religious expression in the execution chamber. Instead, TDCJ has left in place an official execution protocol that contains provisions describing the presence, approval process, and vetting requirements for spiritual advisors. Hence, the 2021 protocol is silent as to what a spiritual advisor may do, if anything, inside the execution chamber.,,, 

TDCJ has apparently left the question of what a spiritual advisor may do to the discretion of prison officials.... Until quite recently, TDCJ officials interpreted the silence in the official protocol to prohibit any physical touch or audible prayer in the execution chamber. Now, TDCJ would have the Court accept their latest pronouncement that the same provisions may be read to allow physical contact and audible prayer.... TDCJ officials have initiated a practice of allowing physical contact and audible prayer when the requests are sufficiently timely and permit security checks.

However, the defendants have not specifically formalized in a policy or otherwise described what the basis is for it unwritten practice....

[TDJC] has been encouraged by the highest court in the land to develop a policy that can be reviewed.  The stubbornness of TDCJ to enact a policy that removes all discretion, except in critical instances, militates against extending the lesser burden to TDCJ.

The court entered a Preliminary Injunction that provides:

Texas [TDCJ] may proceed with the execution of Stephen Barbee on November 16, 2022, only after it publishes a clear policy that has been approved by its governing policy body that (1) protects an inmate's religious rights in the execution chamber and (2) sets out any exceptions to that policy, further describing with precision what those exceptions are or may be.

2nd Circuit Remands Challenge to Emergency Ban of Unvaccinated Children from Public Places

In M.A. v Rockland County Department of Health, (2d Cir., Nov. 9, 2022), the U.S. 2nd Circuit Court of Appeals sent back to the trial court a free exercise challenge to Rockland County, New York's Emergency Declaration barring children who were not vaccinated against measles from places of public assembly.  Children with medical exemptions were exempt from the ban. The court said in part:

Because there are factual issues relevant to whether the Emergency Declaration was neutral and generally applicable, the district court erred in granting summary judgment in favor of Defendants on Plaintiffs’ claim that the Emergency Declaration violated their rights under the Free Exercise Clause. While a reasonable juror could conclude that [County Executive] Day’s statements evinced religious animus, rendering the Declaration not neutral, a reasonable juror could also conclude the opposite. Similarly, there are disputes of fact regarding whether the Declaration, in practice, primarily affected children of religious objectors or whether there was a sizable population of children who were unvaccinated for a variety of non-medical and non-religious reasons. There are also disputes as to whether the County’s purpose in issuing the Declaration was to stop the spread of measles or to encourage vaccination. Given these fact-intensive issues, the district court’s grant of summary judgment on Plaintiffs’ Free Exercise Claim was erroneous.

Judge Park filed a concurring opinion, saying in part:

In the spring of 2019, Rockland County quarantined children who were unvaccinated for measles for religious reasons— prohibiting them from entering any public place—but not children who were unvaccinated with medical exemptions. County officials did not even try to hide their reasons for engaging in this “religious gerrymander[ing],” which served to isolate, target, and burden Plaintiffs’ religious practices.... To them, Plaintiffs were “anti-vaxxers” who were “loud, very vocal, [and] also very ignorant.”...

Court Upholds NY Law Banning Bars from Opening on New Year's When It Falls on Sunday

In Eris Evolution, LLC v. Bradley, (ED NY, Nov. 8, 2022), a New York federal district court rejected an Establishment Clause challenge to a provision in New York's liquor laws that allows bars to apply for permits to stay open all night on New Year's except when New Year's falls on a Sunday. The court concluded that the U.S. Supreme Court's 1961 decision in McGowan v. Maryland upholding Sunday closing laws forecloses plaintiff's claim.  The court said in part:

McGowan holds that a law with a secular purpose does not violate the Establishment Clause; it does not hold that providing a uniform day of rest is the only such purpose. Indeed, the Supreme Court enumerated the exceedingly broad categories of “health, safety, recreation and general well-being.” ... The only available legislative history states that the law at issue was amended in 1950 “to protect the health of the people.”...

Eris must do more than show that the law is irrational; it must also show that its real purpose is to advance a particular religion or religion in general. This it has failed to do.

Parties Agree To $2 Million + Attorneys' Fees in Christian Flag Case

After plaintiffs' win in the Supreme Court in Shurtleff v. City of Boston (the Christian flag case), plaintiffs sought to recover attorneys' fees and costs for the five years of litigation. On Nov. 8, the parties filed a Joint Notice of Settlement in the case in a Massachusetts federal district court. The City of Boston will pay $2,125,000 to Liberty Counsel, attorneys for plaintiffs.  Liberty Counsel issued a press release announcing the settlement.

SCOTUS Hears Arguments in Indian Child Welfare Act Case

Yesterday the U.S. Supreme Court heard oral arguments in Haaland v. Brackeen. (Audio and transcript of full oral arguments). SCOTUSblog reported on the arguments. At issue is the constitutionality of the Indian Child Welfare Act of 1978 which attempts to prevent child welfare and adoption agencies from placing Native American children outside of their tribe. (SCOTUSblog case page.) A number of commentators have pointed out that issues of religion underlie the controversy in the four consolidated cases heard yesterday. Religion News Service explains, saying that the Act was a reaction to past efforts by the U.S. government to remove Native American children from their homes and place them in boarding schools:

The U.S. is only now reckoning with the history of its boarding schools, which separated generations of children from their families and prohibited them from speaking Native languages, dressing and wearing their hair in traditional styles and taking part in traditional spiritual practices in an effort to assimilate them into the dominant white Christian culture.

Half of boarding schools likely were supported by Christian institutions, according to a report released earlier this year by the U.S. Department of the Interior. A number of denominations are now researching and repenting for their past involvement.

Results From Election Day on Ballot Issues of Interest

Here are Tuesday's vote results for the ten ballot issues of interest to those following law and religion developments.  More details and updated information are available at Ballotpedia.

Arkansas Issue 3: Constitutional amendment that would provide "government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability." Losing 49.56%- 50.44% with 97% of precincts reporting.

California Proposition 1: Right to Reproductive Freedom Amendment. Passed 65%- 35%.

Colorado Amendment F: Constitutional amendment to allow operators of charitable gaming activities to be paid and authorize the legislature to determine how long an organization must exist to obtain a charitable gaming license. Defeated 39%- 61%.

Kentucky Constitutional Amendment 2:  Amendment to the Kentucky Constitution to provide that nothing in the state constitution creates a right to abortion or requires government funding for abortion. Defeated 48%- 52%.

Michigan Proposal 3: Constitutional amendment to provide a right to reproductive freedom. Passed 57%- 43%

Montana LR-131: Referendum on statute that states infants born alive at any stage of development are legal persons, and requires medical care for infants born alive after an induced labor, cesarean section, or attempted abortion. Losing 48%- 52% with 85% of precincts reporting.

Nevada Question 1: Constitutional amendment to prohibit the denial or abridgment of rights on account of an individual's race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin. Winning 57%- 43% with 77% of precincts reporting.

Tennessee Constitutional Amendment 4: Amendment to repeal section of the Tennessee Constitution that disqualifies religious ministers from being elected to the state General Assembly. Passed 63%- 37%.

Vermont Proposal 5: Constitution amendment that would protect the right to personal reproductive autonomy and prohibit government infringement unless justified by a compelling state interest. Passed 77%- 23%.

West Virginia Amendment 3: Amendment to remove the state constitution's prohibition on incorporating religious denominations and churches and to authorize the state legislature to pass laws providing for such incorporations. Defeated 45%- 55%.

Suit Challenges Refusal to Grant Religious Exemption from Covid Vaccine Mandate

Suit was filed last week in a New Jersey state trial court by a Behavioral Support Technician at a state-operated group home who was fired after refusing on religious grounds to comply with the facility's Covid vaccine mandate. The facility refused to grant a religious exemption to plaintiff.  The complaint (full text) in Bowleg v. New Jersey Department of Human Services, (NJ Super. Ct., filed 11/3/2022), alleges that the New Jersey Law Against Discrimination was violated by failing to accommodate plaintiff's religious objections, and by wrongful termination and retaliation that constitute religious discrimination. Thomas More Society issued a press release announcing the filing of the lawsuit.

Airline Settles EEOC Suit on Behalf of Buddhist Pilot

The EEOC announced this week that United Airlines has settled a religious discrimination lawsuit filed by the agency on behalf of a Buddhist airline pilot.  According to the EEOC:

[T]he pilot was diagnosed with alcohol dependency and lost the medical certificate issued by the Federal Aviation Administration (FAA). One of the requirements of United’s HIMS program ... to obtain new medical certificates from the FAA is that pilots regularly attend Alcoholics Anonymous (AA). The pilot, who is Buddhist, objected to the religious content of AA and sought to substitute regular attendance at a Buddhism-based peer support group. United refused to accommodate his religious objection and, as a result, the pilot was unable to obtain a new FAA medical certificate permitting him to fly again, the agency charged....

Under the consent decree that resolves the lawsuit, United will pay the pilot $305,000 in back pay and damages and will reinstate him into its HIMS Program while allowing him to attend a non-12-step peer recovery program. The company will also accept religious accommo­dation requests in its HIMS Program going forward, institute a new policy on religious accom­modations, and train its employees.

Community College Vaccine Mandates Upheld

In George v. Grossmont Cuyamaca Community College District Board of Governors, (SD CA, Nov. 3, 2022), a California federal district court, in a 41-page opinion, rejected a variety of constitutional challenges and a religious discrimination challenge under Title VII to the Covid vaccine mandates of three community college districts. Plaintiffs were six employees and a student.  The mandates provided for medical and religious exemptions and accommodations. In evaluating plaintiffs' free exercise claims, the court concluded that both the mandates and the accommodation frameworks are neutral and generally applicable. In rejecting the Title VII claim, the court concluded that plaintiffs had shown no adverse employment action against them because they had all received religious exemptions.

Prisoner's RLUIPA Suit Remanded for Consideration of Statute's "Safe harbor" Provision

 In Richardson v. Clarke, (4th Cir., Nov. 7, 2022), the U.S. 4th Circuit Court of Appeals held that a prison's former policy that required inmates to remove head coverings, including religious head coverings, in certain areas of the prison imposed a substantial burden on plaintiff's religious exercise. The court remanded the case to the district court for consideration of the applicability of RLUIPA's safe harbor that allows prisons to avoid liability under RLUIPA by changing the policy or practice that imposes a substantial burden or by providing exemptions from it.

Student Statement Opposing Reproductive Rights Issue Must Be Read During School Announcements

 In Nielson v. Ann Arbor Public Schools, (ED MI, Nov. 4, 2022), a Michigan federal district court issued a temporary restraining order requiring a public high school to read an announcement from the school's Republican Club in opposition to the Reproductive Rights constitutional amendment on the Nov. 8 ballot.  The school contended that reading it would violate the Michigan Campaign Finance Act which bars the school from advocating for ballot issues.  However, the school was permitting students who favor the ballot proposal to take part in a walkout sponsored by the National Organization for Women.  The court said in part:

Plaintiffs have shown a likelihood of success on the merits of their First Amendment claim....

The Court finds that Defendants seek to silence Plaintiffs’ appropriate speech as to Proposal 3 by refusing to broadcast it with their morning announcements, while permitting students in favor of Proposal 3 to cut classes, and to demonstrate on school property in favor of Proposal 3.

Thomas More Law Center issued a press release announcing the decision (with links to pleadings in the case as well).

Tennessee AG: Abortion Ban Does Not Bar Disposal of Excess Embryos Created During IVF Process

Tennessee's Attorney General last month issued Opinion No. 22-12 (Oct. 20, 2022) clarifying that the abortion ban in Tennessee's Human Life Protection Act does not apply to the disposal of embryos which have not been transferred to a woman's uterus. Thus the law would not bar disposal of excess embryos created during the in vitro fertilization procedure. Tennessee Lookout reports on the AG's opinion. [Thanks to Scott Mange for the lead.]

Ten Issues of Interest Are on Today's Ballots Across the Country

Today voters in ten states will be voting on ballot measures that relate to religious institutions, reproductive rights, clergy, religious freedom or religious and LGBTQ discrimination.  Here are summaries of each measure with links to fuller explanations on Ballotpedia:

Arkansas Issue 3: Constitutional amendment that would provide "government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability."

California Proposition 1: Right to Reproductive Freedom Amendment.

Colorado Amendment F: Constitutional amendment to allow operators of charitable gaming activities to be paid and authorize the legislature to determine how long an organization must exist to obtain a charitable gaming license.

Kentucky Constitutional Amendment 2:  Amendment to the Kentucky Constitution to provide that nothing in the state constitution creates a right to abortion or requires government funding for abortion.

Michigan Proposal 3: Constitutional amendment to provide a right to reproductive freedom.

Montana LR-131: Referendum on statute that states infants born alive at any stage of development are legal persons, and requires medical care for infants born alive after an induced labor, cesarean section, or attempted abortion.

Nevada Question 1: Constitutional amendment to prohibit the denial or abridgment of rights on account of an individual's race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin.

Tennessee Constitutional Amendment 4: Amendment to repeal section of the Tennessee Constitution that disqualifies religious ministers from being elected to the state General Assembly.

Vermont Proposal 5: Constitution amendment that would protect the right to personal reproductive autonomy and prohibit government infringement unless justified by a compelling state interest.

West Virginia Amendment 3: Amendment to remove the state constitution's prohibition on incorporating religious denominations and churches and to authorize the state legislature to pass laws providing for such incorporations.

Actor's Disparate-Impact Religious Discrimination Claim Is Dismissed

 In Dunbar v. Disney, (CD CA, Nov. 3, 2022), a California federal district court dismissed an amended complaint filed by "9-1-1" actor Rockmond Dunbar in his Title VII disparate-impact religious discrimination claim against Walt Disney Company. Dunbar was denied a religious exemption from Disney's Covid vaccine mandate and was fired when he refused to be vaccinated. He claimed that according to beliefs of his Universal Wisdom Church it is a sacrilege to ingest medication, chemicals, or other foreign matters that defy natural law. His disparate impact claim failed originally because he was unable to identify other Universal Wisdom Church members who were similarly impacted. He then amended the complaint to allege that three other employees of other religious denominations were impacted. The court held, however, that this was insufficient to identify a "protected group" that was impacted because the group he points to is identified solely by the existence of the alleged discriminatory business practices. Hollywood Reporter reports on the decision.