New York Governor Announces Steps to Combat Hate Crimes

Earlier this week, New York Governor Kathy Hochul announced a number of steps to combat hate crimes. On Nov. 22, the Governor signed A1202 (full text) which makes mandatory rather than just permissive the requirement that sentences for hate crimes include an appropriate program, training session, or counseling session directed at hate crime prevention and education. She also signed A5913A (full text) which requires the state Division of Human Rights to develop and implement a campaign to promote acceptance, inclusion and tolerance of the state's diverse population with the purpose of combatting bias, hatred and discrimination based on religion, race, color, creed, sex, ethnicity, national origin, age, disability, sexual orientation, and gender identity or expression. She also announced plans for a Unity Summit and emphasized grant funding available to strengthen safety measures to protect against hate crimes.

Suit Claims School's Restroom Policy Burdens Muslim and Christian Religious Beliefs

Suit was filed this week in an Ohio federal district court challenging a school district's rule change that allows transgender students to use restrooms and locker rooms that conform to their gender identity.  Plaintiffs, who identify as Muslims and Christians, claim, among other contentions, that the new rules violate their free exercise and equal protection rights, their parental rights and Title IX.  The complaint (full text) in Doe No. 1 v. Bethel Local School District Board of Educaton, (SD OH, filed 11/22/2022), alleges in part:

67. The [Muslim] Plaintiffs ... sincerely believe that Allah makes men and women in the womb as distinct and separate genders. Allah desires modesty and separateness between the sexes. Satan attempts to entice humans to change and disobey what Allah has created and desires, and believers are to stay true to Allah’s creation and commands....

68. Muslim parents are responsible for raising their children in the faith including its morals and values....  This is a fundamental part of the parents’ exercise of their own faith. The Board is imposing a substantial burden on the free exercise of that faith by placing the children in intimate facilities with members of the opposite biological sex....

79. [Seven of the] Plaintiffs ... are all active members of the Christian community.

80. For thousands of years, Judeo-Christianity has taught that their identity as people comes from God, who made human beings in his image—male and female. See, e.g., Genesis 1:26-28; Matthew 19:4-6. Therefore, a human being’s dignity comes from the image of God himself. And God’s fashioning of a human being as a man or woman at birth is a fundamental part of that dignity. One cannot impose on that dignity without transgressing the fundamental core of a Christian.

Fox News reports on the lawsuit.

President Biden Issues Thanksgiving Proclamation

President Biden yesterday issued a Proclamation (full text) declaring today as a National Day of Thanksgiving.  The Proclamation reads in part:

We are grateful for our family and friends and for all of our fellow Americans, even those whom we may never meet but rely upon nonetheless.  We are thankful for the scientists, researchers, doctors, and nurses who have kept us safe through a pandemic, and for the frontline workers who have kept essential services going by growing and providing food for our tables.  We are grateful to faith leaders for their counsel, comfort, and support.  We thank our brave service members and veterans who sacrifice so much for our freedom, and the first responders who put so much on the line to keep us all safe. 

As Scripture says:  “let us rejoice always, pray continually, and give thanks in all circumstances.”  This is a special time in the greatest country on Earth, so let us be grateful.  America is a great Nation because we are a good people.  This holiday, we celebrate all that brings us together, grounded in history and our shared hopes for the future.

Georgia Supreme Court Reinstates Heartbeat Abortion Ban

As previously reported, last week a Georgia state trial court held Georgia's heartbeat abortion ban unconstitutional and enjoined enforcement of two key provisions of the law.  In reaching its conclusion, the trial court invoked Georgia's "void ab initio" doctrine. Today in State of Georgia v. SisterSong Women of Color Reproductive Justice Collective, (GA Sup. Ct., Nove 23, 2022), the Georgia Supreme Court in a brief order granted a stay of the trial court's order. This allows the ban to go back into effect. Seven of the nine justices concurred in the Order. One Justice was disqualified and one did not participate. ACLU issued a press release announcing the decision.

Delaware Chancery Court Says Religious Leaders' Challenge to COVID Orders Was Filed in Wrong Court

In In re Covid Related Restrictions on Religious Services, (Del. Ch., Nov. 22, 2022), the Delaware Court of Chancery held that a challenge by religious leaders to now-lifted Covid-related restrictions on religious services should be brought in Superior Court, not in Delaware's Chancery Court which is limited to providing equitable relief. The state's other courts are capable of awarding damages and issuing a declaratory judgment. In reaching that conclusion, however, the court modified the test it has traditionally used to determine whether to grant a permanent injunction. The court said that in order to obtain a permanent injunction, as opposed to a TRO or preliminary injunction, petitioner must only show that remedies at law would be inadequate. Threat of irreparable harm is one way, but not the only way, to show this. The court went on, however, to conclude:

[W]hen a plaintiff seeks to ground equitable jurisdiction on the potential need for a permanent injunction, the pled facts must support a reasonable apprehension that the defendant will act in a manner that will necessitate the injunction’s issuance. Under the reasonable-apprehension test, a plaintiff’s subjective fears are not sufficient. There must be objectively good reasons to think that a permanent injunction will be warranted. The plaintiffs have not pled facts that make it reasonably conceivable that the Governor will re-impose the Challenged Restrictions.

NY Child Victim Act Revives Claim Even Though Prior Order of Dismissal Did Not Specify Statute of Limitations Grounds

In D.P. v. Riverside Church in the City of New York, (NY Cnty. Sup. Ct., Nov. 14, 2022), a New York state trial court refused to dismiss on res judicata grounds a suit against Riverside Church alleging abuse of a teenage player by the founder of a Harlem basketball program sponsored by the church. A federal court lawsuit making similar allegations was dismissed in 2008 after plaintiff filed a stipulation of dismissal.  While the federal court's order of dismissal did not state the grounds for dismissal, plaintiff in this case filed an affidavit saying that the rationale was the statute of limitations.  The New York state court held that since the Child Victim Act revived causes of action that had previously been dismissed on limitations grounds, it would allow plaintiff to move ahead with the suit, saying in part:

As the Federal case was discontinued in 2008 and makes no mention as to why same occurred this court must give every deference to the party seeking an opportunity to proceed with this case under the CVA on the merits.

Football Coach Sues After Being Fired for Religious Refusal of Covid Vaccine

Suit was filed last week by the former head football coach for Washington State University who was fired after refusing on religious grounds to comply with the state's Covid vaccine mandate for state employees. The Athletic Department refused to grant him a religious accommodation, questioning the sincerity of his religious objections as well as the University's ability to accommodate his objections. The complaint (full text) in Rolovich v. Washington State University, (WA Super. Ct., filed 11/14/2022), alleges that the coach's firing amounts to religious discrimination in violation of state and federal law and infringement of plaintiff's free exercise and due process rights. Campus Reform reports on the lawsuit.

Maryland County's Election Process for Student School Board Member Survives Free Exercise Challenge

 In Kim v. Board of Education of Howard County, (D MD, Nov. 18, 2022), a Maryland federal district court rejected both equal protection and free exercise challenges to the manner in which the student member of the 8-member Howard County School Board is selected. In an elaborate process, the final step in the selection of the student member is a vote by public school students in grades 6 to 11. In rejecting the free exercise claim, the court said in part:

Plaintiffs argue that the Student Member selection process violates the First Amendment’s Free Exercise Clause because it bars certain students from voting for the Student Member “solely because they attend a religious school or are homeschooled for religious reasons.”... This claim will be dismissed because Plaintiffs have not plausibly alleged that the Student Member statute burdens religion—and even if it did, the law is neutral and generally applicable.

The court also rejected equal protection claims that the process violated the one-person one-vote mandate and uniformity rules.

Medical Organizations Challenge FDA's Past Approval of Chemical Abortion Drugs

In a new test of abortion rights, four medical organizations and four doctors filed suit last week in a Texas federal district court challenging the FDA's long-standing approval for use in the United States of the chemical abortion drugs mifepristone and misoprostol. The 113-page complaint (full text) in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, (ND TX, filed 11/18/2022), alleges in part:

3. To date, the FDA’s review, approval, and deregulation of chemical abortion drugs has spanned three decades, correlated with four U.S. presidential elections, and encompassed six discrete agency actions...

7. The only way the FDA could have approved chemical abortion drugs was to use its accelerated drug approval authority, necessitating the FDA to call pregnancy an “illness” and argue that these dangerous drugs provide a “meaningful therapeutic benefit” over existing treatments.

8. But pregnancy is not an illness, nor do chemical abortion drugs provide a therapeutic benefit over surgical abortion....

9. What’s more, the FDA needed to disavow science and the law because the FDA never studied the safety of the drugs under the labeled conditions of use....

10, Since then, the FDA has not followed the science, reversed course, or fixed its mistakes,,,

22...  [A]ll of the FDA’s actions on chemical abortion drugs—the 2000 approval, the 2016 major changes, the 2019 generic drug approval, and the two 2021 actions to eliminate the in-person dispensing requirement—failed to acknowledge and address the federal laws that prohibit the distribution of chemical abortion drugs by postal mail, express company, or common carrier.,,,

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

Challenge To HHS Health Care Non-Discrimination Rules Is Moot

 In American College of Pediatricians v. Becerra, (ED TN, Nov. 18, 2022), a Tennessee federal district court dismissed for lack of standing a challenge to a rule promulgated by the Department of Health and Human Services that barred discrimination on the basis of gender identity in the furnishing of health care.  The court said in part:

Given Plaintiffs’ failure to allege any of the McKay factors, the availability of a religious exemption by which they are arguably protected from enforcement, which has not yet been interpreted otherwise, the fact that Plaintiffs filed this lawsuit before seeking an exemption, and the Supreme Court’s mandate that the standing inquiry is “especially rigorous when reaching the merits of the dispute would force [a court] to decide the constitutionality of an action taken by one of the other two branches of the Federal Government,” the Court finds Plaintiffs have not established standing as to their claims. 

The court also concluded that plaintiffs lacked standing to challenge an HHS rule requiring grant recipients to recognize same-sex marriages.

Plaintiffs do not allege that HHS has any history of enforcing the 2016 Grants Rule against them or others, or that Plaintiffs have received any sort of enforcement warning regarding the 2016 Grants Rule.

The court's 41-paage opinion traces the complex history of rulemaking and litigation as to both rules.

President Biden Issues Statement on Transgender Day of Remembrance

The White House today released a statement (full text) from President Biden on Transgender Day of Remembrance. The Statement says in part:

On Transgender Day of Remembrance, we honor the 32 transgender Americans known to have been taken from us this year by horrific acts of brutality. The true toll is likely much higher, with Black and brown transgender women disproportionately targeted.

In the face of this ongoing assault, my Administration remains deeply committed to strengthening the rights of LGBTQI+ Americans, including transgender Americans. Since taking office, we have made it possible for transgender service members to once again serve proudly and openly in our military, improved the travel experience for transgender Americans, and provided resources to support the mental health of transgender kids and their families.... I continue to urge state leaders to combat the disturbing wave of discriminatory state laws targeting young transgender Americans—legislation that hurts young people who aren’t hurting anyone. With Congress poised to pass the bipartisan Respect For Marriage Act, I also reiterate my call for them to likewise pass the Equality Act and provide long overdue protections to transgender and all LGBTQI+ Americans.

NYT: In 2014 There Was a Leak of the Hobby Lobby Result

The New York Times today posted a lengthy investigative article revealing that the leak of the draft Dobbs opinion earlier this year was not the first time that there had been a leak of information about a decision not yet released by the Supreme Court.  The Times article is based largely on information from Rev. Rob Schenck, formerly the head of an evangelical non-profit, Faith and Action.  In a letter he sent to Chief Justice Roberts after the leak of the Dobbs draft opinion, Schenck said in part:

Back in June 2014, when so many awaited the Court's opinion in Burwell v. Hobby Lobby, I was informed by a donor to the Capitol Hill-based non-profit organization I led that she and her husband would be dining at the home of Justice and Mrs. Alito. She suggested that in their table conversation, she might be able to learn the status of the case, something she knew I had an interest in knowing. I received a follow -up message from her notifying me she had indeed obtained the information during that visit. We spoke on the phone, and she detailed the revelation. As I recall, we talked about the Green family, owners of Hobby Lobby, and how they, too, would be interested in this information.

According to the Times:

Mr. Schenck recruited wealthy donors like Mrs. Wright and her husband, Donald, encouraging them to invite some of the justices to meals, to their vacation homes or to private clubs. He advised allies to contribute money to the Supreme Court Historical Society and then mingle with justices at its functions. He ingratiated himself with court officials who could help give him access, records show.

All the while, he leveraged his connections to raise money for his nonprofit, Faith and Action. Mr. Schenck said he pursued the Hobby Lobby information to cultivate the business’s president, Steve Green, as a donor....

Mr. Schenck, 64, has shifted his views on abortion in recent years, alienating him from many of his former associates, and is trying to re-establish himself, now as a progressive evangelical leader. His decision to speak out now about the Hobby Lobby episode, he said, stems from his regret about the actions that he claims led to his advance knowledge about the case....

[Schenck]  had long been an ends-justify-the-means anti-abortion provocateur....

... Mr. Schenck wanted the conservatives on the court to hear from people who would hail them as heroes if they seized the opportunity to strike down Roe one day. The goal, he said in an interview, was to “embolden the justices” to lay the legal groundwork for an eventual reversal by delivering “unapologetically conservative dissents.”

UPDATE: Here is the Supreme Court Legal Counsel's response to the NYT article.

Religious Children's Home Lacks Standing To Challenge Now-Defunct HHS Non-Discrimination Rule

 In Holston United Methodist Home for Children, Inc. v. Becerra, (ED TN, Nov. 18, 2022), a Tennessee federal district court held that a religiously affiliated children's home that places children for foster care or adoption lacks standing to challenge a 2016 anti-discrimination rule promulgated by the Department of Health and Human Services. According to the court:

Holston Home requires prospective foster and adoptive parents to affirm a Christian statement of faith and beliefs before they can engage in child-placement activities.... Further, Holston Home does not place children with foster or adoptive parents who are in same-sex relationships or unmarried couples of any biological sex who are romantically cohabitating....

While the challenged rule, promulgated at the end of the Obama Administration, barred such restrictions, HHS policy had undergone successive changes in the Trump and Biden Administrations. These are traced at length in the court's 22-page opinion. In particular the court noted:

Although HHS had not enforced the 2016 Grants Rule since it became effective, on November 19, 2019, HHS published a formal notification in the Federal Register to inform the public that it would not enforce the 2016 Grants Rule after determining that the rulemaking raised “significant concerns about compliance with the Regulatory Flexibility Act [‘RFA’].”...

Because the 2016 Grants Rule is, for all intents and purposes, defunct pursuant to the Notification of Nonenforcement, Holston Home faces no credible threat of prosecution.... Having also failed to show any history of past enforcement of the 2016 Grants Rule, enforcement warning letters, or a feature of the regulation making it easier or more likely to be enforced, Holston Home lacks standing to bring this lawsuit.

Cross On Park Land Must Remain While State Court Reconsiders Its Eminent Domain Ruling

 In Lions Club of Albany, California v. City of Albany, (ND CA, Nov. 17, 2022), a California federal district court clarified its 2018 ruling in which it held that the city of Albany violated the Establishment Clause by acquiring for a public park a 1.1 acre parcel of land that includes a large cross. Originally the cross was on private property, and the Lion's Club held an easement to maintain the 20-foot high cross and to illuminate it each Christmas and Easter. In its earlier ruling the court said that the city could cure its Establishment Clause problem in one of several ways, one of which was by taking the Lion's Club easement by eminent domain. (See prior posting.) In May 2022, the city began state court eminent domain proceedings.  The state court permitted the city to take prejudgment possession of the Lion's Club easement and take down the cross and store it in a safe place. The Lion's Club than filed the present federal court action seeking a preliminary injunction, contending that its free speech and free exercise rights were being violated. The court said in part:

The City wants to keep the park and remove the cross, not sell the land. Further, as revealed at our hearing, there is and has been no current offer by the Lions Club to purchase a parcel that includes the cross. These considerations are relevant in weighing hardships and, as explained above, the question of provisional relief is wholly in the hands of the [state court] Judge Chatterjee. He is free to rule either way without offending any order or dictum by this court. 

At our hearing, however, it also developed that the City cannot say with any certainty whether it can put the cross back up after its provisional removal, should the City ultimately lose the eminent domain jury trial.... Thus, as the Court sees things, this is not just a decision merely pending litigation, but rather practically, once the cross is down, it is down for good. This raises a serious exercise of religion problem and in considering this issue, Judge Chatterjee’s ruling appears to have been based on a misunderstanding of this Court’s prior ruling. Therefore, until such time as Judge Chatterjee can reassess the motion for prejudgment possession, taking into consideration the correct understanding of the June 2018 Order, removal of the cross is ENJOINED.

Maryland AG Asks Court to Approve Release of Report on Clergy Abuse

 A 35-page motion (full text) was filed yesterday by the Attorney General of Maryland in a Maryland state trial court seeking court approval to release a 456-page Report on Clergy Abuse in Maryland.  In re Special Investigation No. CID 18-2673 (Baltomore City Cir. Ct., filed 11/17/2022).  The Report that is the subject of the motion is the product of a three-and-one-half year grand jury investigation into sexual abuse by priests assigned to the Archdiocese of Baltimore and the Archdiocese's response to that abuse. Court approval is needed in order to release grand jury material. According to the motion:

The Report identifies 115 priests that were prosecuted for sex abuse and/or identified publicly by the Archdiocese as having been "credibly accused" of sexual abuse. The Report includes an additional 43 priests accused of sexual abuse but not identified publicly by the Archdiocese....

As shown in the Report, both boys and girls were abused, with ages ranging from preschool through young adulthood....

Washington Post reports on the AG's motion.

USCIRF Issues Report on State-Favored Religions and Religious Freedom

Yesterday the U.S. Commission on International Religious Freedom issued a report (full text) titled Implications of Laws Promoting State-Favored Religions. The report identified 78 countries with official or favored religions, 57 of which maintain laws or policies that lead to religious discrimination or repression, or that have the potential to do so.  The Report says in part:

[C]ontrary to popular misconception, there is no inevitable contradiction between freedom of religion or belief and a country’s adoption of an official or favored religion. As such, there are examples of countries that maintain an official or favored religion and protect FoRB as an essential human right.... 

Conversely, the absence of an official or favored religion is no guarantee of a country’s protection or promotion of FoRB. USCIRF has recommended CPC or SWL designation for a range of avowedly secular countries where the government consistently perpetrates or tolerates severe or particularly severe religious freedom violations as defined in IRFA....

9th Circuit: Religious School's Challenge to Covid Restrictions Is Moot

In Horizon Christian School v. Brown, (9th Cir., Nov. 17, 2022), the U.S. 9th Circuit Court of Appeals held that the free exercise and parental rights challenges to the Oregon governor's previous Covid restrictions on in-person school classes is moot. The claim for nominal damages does not prevent mootness because the suit against the governor in her official capacity is barred by the 11th Amendment. The court denied leave to amend plaintiffs' complaint because defendant had qualified immunity.  Judge O'Scannlain filed a concurring opinion saying that if there were not qualified immunity, he would hold that the governor's order impinged a fundamental constitutional right.

Romania Passes Legislation Protecting Kosher Slaughter

Israel National News reports that on Tuesday the Parliament in Romania gave final passage to a law that explicitly allows kosher slaughter of animals. As explained by Jewish News Syndicate:

The move comes after some other European Union members have banned shechita in recent years, including Sweden, Denmark, Finland, Estonia, Slovenia, and Belgium (except for in Brussels).

10th Circuit Denies En Banc Review in Ministerial Exception Case

In Tucker v. Faith Bible Chapel International, (10th Cir., Nov. 15, 2022), the U.S. 10th Circuit Court of Appeals by a vote of 6-4, denied en banc review of a panel decision which held that interlocutory appeals from the denial of a ministerial exception defense are not permitted. In the case, a former high school teacher and administrator/ chaplain contends that he was fired for opposing alleged racial discrimination by a Christian school. Judge Ebel, joined by Judge McHugh, filed an opinion concurring in the denial of review, saying in part:

Our panel decision, then, is consistent with well-established lines of Supreme Court precedent. Our decision also does not create any circuit split. It appears that no other circuit has addressed the specific question presented here—whether a religious employer is entitled to an immediate appeal under Cohen from a district court’s interlocutory ruling denying the employer summary judgment on its affirmative ministerial exception defense because there are genuinely disputed issues of material fact as to whether the employee qualifies as a minister.

Judge Bacharach, joined by Judges Tymkovich and Eid, filed a dissenting opinion, saying in part:

This appeal involves a religious body’s invocation of the collateral-order doctrine to appeal the denial of summary judgment on the ministerial exception. The panel majority rejected that effort, treating the ministerial exception like other affirmative defenses reviewed by appellate courts after final judgment. 

In my view, that treatment reflects a fundamental misconception of the ministerial exception. Though most defenses protect only against liability, the ministerial exception protects a religious body from the suit itself. Without that protection, religious bodies will inevitably incur protracted litigation over matters of religion. The stakes are exceptionally important for religious bodies deciding whom to hire or fire.

Americans United issued a press release announcing the decision.

5th Circuit: District Court's Order on Religious Rights in Execution Chamber Was Too Broad

In Barbee v. Collier, (5th Cir., Nov. 11, 2022), the U.S. 5th Circuit Court of Appeals vacated and remanded for further proceedings an injunction issued by a Texas federal district court that barred the execution of convicted murderer Stephen Barbee until the Texas Department of Criminal Justice publishes a clear policy on inmates' religious rights in the execution chamber. Barbee wants his spiritual advisor to pray aloud with him and hold his hand. (See prior posting.) The 5th Circuit said in part:

While a written policy may be desirable ..., the available remedy for Barbee’s RLUIPA violation “is an injunction ordering the accommodation,” ... As it stands, the preliminary injunction ordering the Defendants to enact a written policy on religious accommodation that would apply to all executions is overbroad and must be vacated. The district court may instead consider what relief specific to Barbee is consistent with Ramirez and is appropriate in this case.

On Monday, Barbee filed with U.S. Supreme Court Justice Samuel Alito an Application for a Stay of Execution (full text) and a Petition for Certiorari (full text). Yesterday, the state filed a Brief in Opposition to Barbee's filings (full text). Barbee's execution is currently scheduled for 6:00 pm Central Time today.  Courthouse News Service reports on these developments.

UPDATE: On Wednesday, Nov. 16, the U.S. Supreme Court denied Barbee's application for a stay of execution and his petition for certiorari. (Full text of Order.). Courthouse News Service reports.