Nuns' Hostile Work Environment and Retaliation Claims Can Move Forward

In Brandenburg v. Greek Orthodox Archdiocese of North America, (SD NY, Feb. 23, 2023), a New York federal district court held that it can proceed to adjudicate hostile work environment and some of the retaliation claims brought by two nuns against the Greek Orthodox Archdiocese and several of its clergy members. The nuns claimed that Father Makris, the school's director of student life and their "spiritual father" subjected them to unwanted sexual attention for 13 to 14 years. According to the court:

[T]he ministerial exception flows from the plaintiff’s status as a “minister.” In this case, however, Defendants’ argument has nothing to do with the fact that Plaintiffs were sanctified nuns; instead, it flows from Father Makris’s status as minister and the alleged rationale for his conduct.... 

These and other cases make plain that the First Amendment does not shield all decisions by religious institutions, whether or employment-related or otherwise, from review. Instead, a court is barred from adjudicating a dispute involving a religious institution “only where resolution of the dispute will require the Court or a jury to choose between competing religious views or interpretations of church doctrine or dogma in order to resolve the dispute.”... 

Defendants do ... assert a religious rationale for ... one relatively minor aspect of Father Makris’s conduct: his kissing of Plaintiffs..... [T]he fact that Defendants proffer a religious rationale does not mean that Defendants should be granted immunity from Plaintiffs’ claims. It merely means that Plaintiffs “may not offer a conflicting interpretation of the teachings of the [Greek Orthodox] Church or canon law to rebut [Defendants’] proffered religious reason.”... [H]owever, Plaintiffs are entitled to offer evidence and argument that Defendants’ proffered religious rationale was not the true rationale for Father Makris’s behavior.

FBI Agents Have Qualified Immunity in Suit by Muslims Placed on No-Fly List for Refusing to Spy on Their Communities

On remand from the U.S. Supreme Court (see prior posting), a New York federal district court in Tanvir v. Tanzin, (SD NY, Feb. 24, 2023), held that FBI agents who placed or kept plaintiffs on the federal no-fly list in retaliation for their refusal to act as informants on their Muslim communities have qualified immunity in a suit for damages under RFRA. Plaintiffs contend that gathering information on fellow Muslims contravenes their religious beliefs.  The court concluded that FBI agents had not violated a clearly established law, saying in part:

The Court is sympathetic to Plaintiffs, who claim that, despite never posing a threat to aviation security, they were, for years, unable to visit ailing loved ones outside of the United States, burdened financially with the loss of job opportunities which required them to travel, and repeatedly forced to endure the basic indignity of being denied boarding passes for flights to which they had legitimately purchased tickets. Accepting their allegations as true, Plaintiffs were subjected to this treatment by way of the FBI’s misuse of the No Fly List simply because they were Muslim, and because they refused to spy on other members of their faith. 

Nevertheless—and notwithstanding varied criticisms of the doctrine of qualified immunity, the Court is required to apply the law faithfully to the issues before it....

At the time of Defendants’ alleged activity, no federal court had addressed claims—let alone actually held—that law enforcement pressuring individuals to inform on members of their religious communities through retaliatory or coercive means substantially burdened their religious exercise in violation of RFRA. Plaintiffs point to four cases in an attempt to make out their claim of clearly established law at the time of the alleged violations, but each of those cases are plainly distinguishable.....

Oklahoma AG Withdraws Opinion Permitting Sectarian Charter Schools

As previously reported, last December Oklahoma Attorney General John M. O'Connor issued Attorney General Opinion 2022-7 concluding that the ban in Oklahoma law on publicly funded charter schools being sectarian or religiously affiliated is unconstitutional. On Feb. 23, current state Attorney General Gentner Drummond withdrew that Opinion issued by his predecessor.  In a letter to the Executive Director of the Statewide Virtual Charter School Board (full text) explaining his action, the AG said in part:

Without binding precedent clearly addressing whether charter schools are state actors, this office is not currently comfortable advising your board members to violate the Oklahoma Constitution's clear directive: "Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and free from sectarian control...." Okla. Const. art I, §5 (emphasis added). Likewise, without clear precedent, this office is not comfortable advising you to violate the Legislature's clear directive that "[a] charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations." 70 O.S. §3-136(A)(2) (emphasis added).

Noting that Opinion 2022-7 was issued in anticipation of a Charter School application by St. Isidore of Seville Catholic Virtual School, Drummond's letter pointed out:

[A]pproval of the SISCVS application will create a slippery slope. While many Oklahomans undoubtedly support charter schools sponsored by various Christian faiths, I doubt most Oklahomans would want their tax dollars to fund a religious school whose tenets are diametrically opposed to their own faith. Unfortunately, the approval of a charter school by one faith will compel the approval of charter schools by all faiths, even those most Oklahomans would consider reprehensible and unworthy of public funding. Consequently, I urge your board members to use caution in reviewing the SISCVS application.

Virginia Legislature Passes Law Protecting Houses of Worship from Discriminatory Restrictions During Emergencies

Yesterday, the Virginia General Assembly gave final passage to HB 2171 (full text). The bill, which is a reaction to restrictions imposed during the COVID pandemic, provides:

No rule, regulation, or order issued by the Governor or other governmental entity pursuant to this chapter shall impose restrictions on the operation of a place of worship that are more restrictive than the restrictions imposed on any other business, organization, or activity.

Virginia Mercury, reporting on the bill's passage, says that Gov. Glenn Youngkin is expected to sign the bill. It quotes a proponent of the bill as saying: "This bill means the governor’s not gonna open liquor stores and close churches."

Seattle Becomes First U.S. City To Outlaw Caste Discrimination

Seattle, Washington this week became the first U.S. city to add "caste" discrimination to its anti-discrimination laws. The Ordinance (full text), enacted on Feb. 21, in Section 14.04.030 defines caste as:

a system of rigid social stratification characterized by hereditary status, endogamy, and social barriers sanctioned by custom, law, or religion.

The Ordinance begins with some two-dozen "Whereas" clauses. They assert in part that:

... caste discrimination is based on birth and descent, and occurs in the form of social segregation, physical and psychological abuse, and violence; and

... caste discrimination manifests in employment, education, and housing....

 Time has a lengthy background article on the new legislation.

Christian Teacher Did Not Show That Her Removal Was Retaliation for Protected Speech or Beliefs

In Barr v. Tucker (SD GA, Feb. 21, 2023), a Georgia federal district court denied a preliminary injunction to plaintiff whose position as a substitute elementary school teacher was terminated after she complained to her own children's teachers and to the principal about the school librarian's reading aloud to classes a book that contains illustrations of same-sex couples with school-age children. The court explained:

Plaintiff told Defendant Tucker [the school principal] that she believed the book was '"inappropriate for young children, conflicted with her Christian faith, and appeared to bean effort to indoctrinate young children into a progressive ideological agenda[]" and asked that her children be excused from the read-aloud program.

Plaintiff contended that the school had retaliated against her for her exercising her free speech and free exercise rights. The court disagreed, saying in part:

... Plaintiff's inquiries principally addressed her personal concerns about exempting her children from the read-aloud program, and the context of her speech suggests she spoke on a matter of private or personal interest.

Accordingly ... Plaintiff has failed to establish a substantial likelihood of success in showing she spoke on a matter of public concern .... As a result. Plaintiff has also failed to establish a substantial likelihood of success on the merits of her First Amendment [free speech] retaliation claim....

The Court accepts, as Plaintiff alleges, that her sincerely held religious beliefs include ''that God created marriage to be between one man and one woman, and that family formation should occur within the confines of heterosexual marriage."... However, at this stage. Plaintiff has not established that she is substantially likely to succeed on showing that Defendants substantially burdened her religious beliefs by terminating her.

It is not clear that Defendants called for Plaintiff's removal due to her religious beliefs....

Defendants maintain they removed Plaintiff due to her inappropriately timed interactions with her children's teachers and concern about how she would support students or parents that identify as gay, not because of her beliefs about marriage and family formation.

Alaska Supreme Court Reverses Dismissal of Muslim Inmate's RLUIPA Claims

In Din v. State of Alaska, Department of Corrections, (AK Sup. Ct., Feb. 22, 2023) the Alaska Supreme Court vacated a trial court's dismissal of a suit brought under RLUIPA and the Alaska constitution by a Muslim inmate and remanded the case for further factual development.  At issue was the inmate's requests to pray five time per day using scented prayer oils and to eat halal meat as part of his diet. Prison rules only allowed use of scented oils for weekly outdoor congregate religious activities and only provided vegetarian or vegan meals for those requesting a halal diet. The court concluded that both restrictions imposed a substantial burden on the inmate's religious exercise. It went on:

Prison security is a compelling government interest. But DOC’s position that possessing prayer oils is prohibitively dangerous is difficult to reconcile with the fact that it allows inmates to possess “skin cream/oil.” Inmate and staff health are also important government interests, and DOC asserts that “even a seemingly mild scent may cause an adverse respiratory reaction.” But DOC’s position is difficult to reconcile with its policies allowing prisoners to possess other fragranced items, like deodorant, hair spray, and air fresheners....

DOC also asserts that the estimated additional cost of providing “halal/kosher meals . . . to accommodate all Alaska inmates who claim to need a special halal/kosher diet . . . would exceed $1,000,000 annually.” Din contends that this is not a compelling reason because providing him pre-packaged halal food would cost DOC approximately $7,700 more than the cost of regular meals, a small sum compared to its massive budget. 

Cost management obviously is an important government interest. But Congress contemplated that RLUIPA may “require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise”....

The court also concluded that there are genuine issues of material fact as to whether present policies are the least restrictive means to achieve the state's interests. 

DOE Proposes to Rescind Trump Administration Rules Shielding Student Religious Groups at Public Colleges

The Department of Education yesterday released a Notice of Proposed Rulemaking (full text) proposing to rescind two related rules adopted by the Trump Administration in September 2020. Those rules require that public colleges and universities which receive DOE grants (either direct grants or grants under state-administered formula grant programs) must not deny to religious student groups any of the rights, benefits, or privileges that other student groups enjoy because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely-held religious beliefs.

According to yesterday's Notice of Proposed Rulemaking:

Some faith-based and civil rights organizations ... worried that [these rules] could be interpreted to require IHEs [institutions of higher education] to go beyond what the First Amendment mandates and allow religious student groups to discriminate against vulnerable and marginalized students....

There is nothing in the regulatory text that clarifies or guarantees that an institution may insist that such religious organizations comply with the same neutral and generally-applicable practices, policies, and membership and leadership standards that apply equally to nonreligious student organizations, including but not limited to nondiscrimination requirements.

The disparity between the language of the regulatory text and the Department’s stated intent has engendered confusion and uncertainty about what institutions must do to avoid risking ineligibility for covered Department grants....

If IHEs do discriminate against religious student organizations on the basis of the organizations’ beliefs or character, such organizations can and do seek relief in Federal and State courts, which have longstanding expertise in and responsibility for protecting rights under the Free Speech and Free Exercise Clauses, including in cases where there are complex, fact-dependent disputes about whether a policy is neutral and generally-applicable.

Daily Citizen critiques the proposal.

The Department of Education yesterday also published a Request for Information on the effect of current free speech protections required of DOE grantees.

Catholic Bookstore Sues Challenging Florida City's Public Accommodation Law

Suit was filed yesterday in a Florida federal district court challenging the constitutionality of applying Jacksonville's public accommodation law to Queen of Angels, a Catholic bookstore. The complaint (full text) in The Catholic Store, Inc. v. City of Jacksonville, (MD FL, filed 2/22/2023) alleges Free Speech, Free Exercise and vagueness claims, saying in part:

Following a disturbing nationwide trend, the City has expanded its public-accommodation law to cover gender-identity discrimination and thereby require businesses to address customers using their preferred pronouns and titles regardless of a customer's biological sex. The law even prevents businesses from publishing "any communication" a customer or government official might subjectively interpret as making someone feel "unwelcome, objectionable, or unacceptable," such as statements opposing gender-identity ideology.

All this in turn puts Jacksonville's law on a collision course with the First Amendment and ... "Queen of Angels"...,.The bookstore also publishes a website (with blog) any YouTube channel to promote its Catholic faith and products.

As a Catholic bookstore, Queen of Angels follows Catholic teachings-- including the belief that God created everyone in His image, male or female, worthy of dignity and respect. The store serves and sells everything to everyone regardless of gender identity. The bookstore just cannot speak contrary to its beliefs-- to affirm, for example, the view that sex can be changed. So the store cannot use customers' pronouns or titles contrary to their biological sex. Queen of Angels must instead profess an ideological view it opposes....  In effect, the law requires this Catholic bookstore to stop being fully Catholic....

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

Cert. Denied in Challenge to Arkansas' Ban on Companies Boycotting Israel

The U.S. Supreme Court yesterday denied review in Arkansas Times LP v. Waldrip, (Docket No. 22-379, certiorari denied 2/21/2023). (Order List.)  In the case, the U.S. 8th Circuit Court of Appeals sitting en banc, in a 9-1 opinion, upheld against a free speech challenge Arkansas' law requiring public contracts to include a certification from the contractor that it will not boycott Israel.  The 8th Circuit held that the law only bans non-expressive commercial decisions. (See prior posting.) JNS reports on the denial of certiorari. Here is the SCOTUSblog case page with links to briefs filed in the case.

SEC Imposes $5M In Fines On Mormon Church and Its Adviser For Concealing Ownership of Billions In Securities

In In re Ensign Peak Advisor, Inc., (SEC, Feb. 21, 2023), the Securities and Exchange Commission instituted cease and desist proceedings against the Church of Jesus Christ of Latter Day Saints and the entity which manages the Church's assets for making misleading filings designed to conceal the fact that the Church had $32 billion of publicly traded securities in reserve funds in 2018 and $37.8 billion by 2020. The SEC accepted the Offers of Settlement put forward by the respondents.  SEC Release 2023-35 summarizes the SEC's findings and the sanctions imposed:

The Securities and Exchange Commission today announced charges against Ensign Peak Advisers Inc., a non-profit entity operated by The Church of Jesus Christ of Latter-day Saints to manage the Church’s investments, for failing to file forms that would have disclosed the Church’s equity investments, and for instead filing forms for shell companies that obscured the Church’s portfolio and misstated Ensign Peak’s control over the Church’s investment decisions. The SEC also announced charges against the Church for causing these violations. To settle the charges, Ensign Peak agreed to pay a $4 million penalty and the Church agreed to pay a $1 million penalty.

The SEC’s order finds that, from 1997 through 2019, Ensign Peak failed to file Forms 13F, the forms on which investment managers are required to disclose the value of certain securities they manage. According to the order, the Church was concerned that disclosure of its portfolio, which by 2018 grew to approximately $32 billion, would lead to negative consequences....

Market Watch reports on the SEC's action.

Parties Cannot Be Forced to Arbitration Over Issues Surrounding Jewish Religious Divorce

In Bierig-Kiejdan v. Kiejdan, (NJ App., Feb. 16, 2023), a New Jersey state appeals court held that a family court judge could not order parties to a divorce to return to arbitration over issues surrounding which religious tribunal should oversee the issuance of a get-- Jewish divorce document-- when the parties' original agreement to arbitrate terms of the divorce had expired and they had not entered a new arbitration agreement covering issues that would arise later. JD Supra reports on the decision.

Another Challenge to Texas' Heartbeat Abortion Ban Fails on Standing Grounds

In Davis v. Sharp, (WD TX, Feb. 15, 2023), another attempt to challenge Texas' SB 8, the heartbeat abortion ban enforceable only by private lawsuits, failed on standing grounds.  The suit was brought by Stigma Relief Fund and three of its supporters against defendants who threatened to enforce the law against abortion funds and their associates for aiding illegal abortions. However, because defendants filed statements disclaiming any intention to sue the particular fund and supporters who are plaintiffs in this case, plaintiffs failed to show any injury sufficient to give them standing to sue. Law & Crime reports on the decision.

5th Circuit Rejects Pastor's Jurisdictional Theory of Religion Clauses

 In Spell v. Edwards, (5th Cir., Feb. 17, 2023), the U.S. Court of Appeals for the 5th Circuit affirmed the dismissal of a suit brought by a pastor and his church claiming that their First Amendment rights were violated by enforcement against them of COVID orders in the early months of the pandemic that barred their holding church services. The court said in part:

Pastor Spell explicitly waived the argument that defendants’ actions violated his constitutional rights under current free exercise jurisprudence....  Pastor Spell instead advanced an absolute, categorical theory of the Religion Clauses, arguing that church assembly is “beyond the jurisdiction of the government.”... He maintained that, under Everson v. Board of Education of Ewing Township, there is a “jurisdictional limit on intrusion by the state into the church.”  In so doing, he expressly waived other arguments.

Pastor Spell is the master of his case, and he cannot prevail on the theory he advances. Controlling precedent directly contradicts Pastor Spell’s jurisdictional theory of the Religion Clauses.

Unfiltered With Kiran reports on the decision.

Nurse Denied Religious Exemption From Vaccine Mandate Loses Title VII and Free Exercise Challenges

In Riley v. New York City Health and Hospitals Corp., (SD NY, Feb. 17, 2023), a New York federal district court dismissed without prejudice a suit by a Christian nurse in a hospital's surgical unit who claimed that denying her a religious exemption from the hospital's COVID vaccine mandate violated her rights under Title VII and the Free Exercise Clause. The court said in part:

Title VII cannot be used to require employers to break the law..... When the defendant implemented its vaccine mandate, [New York State Department of Health Rule] Section 2.61, a binding state regulation, required the defendant to “continuously require personnel” like the plaintiff “to be fully vaccinated against COVID-19, absent receipt of” a medical exemption. 10 N.Y.C.C.R. § 2.61(c)....

The plaintiff does not argue that the defendant’s vaccine mandate was not generally applicable. She argues only that the mandate “was not neutral and was and is hostile to the religious beliefs of the plaintiff, as it presupposed the illegitimacy of her religious beliefs and practices.”... An enactment violates the neutrality principle if it “explicitly singles out a religious practice” or “targets religious conduct for distinctive treatment.”... The plaintiff pleads no facts suggesting that the defendant’s mandate is guilty of either. To the extent the plaintiff alleges that the mandate’s lack of a religious exception alone makes it non-neutral, We The Patriots forecloses that argument. See 17 F.4th at 282....

White House Celebrates 2nd Anniversary of Its Office of Faith-Based Partnerships

Last Friday, the White House issued a Fact Sheet titled Biden-⁠Harris Administration Celebrates the Second Anniversary of the Reestablishment of the White House Office of Faith-Based and Neighborhood Partnerships (full text). Among other things, the Fact Sheet discusses ten initiatives undertaken with the goal of "Safeguarding the right to practice faith without fear and other aspects of religious freedom."

Recent Articles of Interest

From SSRN:

• Gentian Zyberi & Eduardo Sánchez Madrigal, The Practice of Judicial and Quasi-Judicial Human Rights Bodies on Conscientious Objection to Military Service, (Michael Wiener and David Fernández Puyana (eds.), A Missing Piece for Peace: Bringing Together the Right to Peace and Freedom of Conscientious Objection to Military Service (UPEACE Press, 2022), pp. 121-139).
• Josh Blackman, Howard Slugh & Tal Fortgang, Abortion and Religious Liberty, (Texas Review of Law & Politics, Vol. 27, 2023).
• Amanda Harmon Cooley, Quiet Encroachments on School Prayer Jurisprudence, (January 31, 2023).
• Dallan Flake, When "Close Enough" is Not Enough: Accommodating the Religiously Devout, (February 14, 2023).
• Roberta Lea Brilmayer, Abortion, Full Faith and Credit, and the 'Judicial Power' Under Article III: Does Article IV of the U.S. Constitution Require Sister-state Enforcement of Anti-abortion Damages Awards?,(January 10, 2023).
• Peter Kirsanow, Gail L. Heriot & Dan Morenoff, Brief of the American Civil Rights Project as Amicus Curiae in Support of Appellee and Affirmance in Tennessee v. Department of Education, (January 31, 2023).

From SmartCILP:

• Symposium: Berle XII: Corporate Capitalism and the City of God, Seattle University Law Review, Vol. 45, issue 1 (2021).
• Asma T. Uddin, Religious Liberty Interest Convergence, 64 William & Mary Law Review 83-168 (2022).

Military Will Provide Travel Allowances for Service Members Who Need to Travel to Obtain Abortions

In a press release issued on Feb. 16, the Department of Defense announced that it has issued policy memoranda (full texts1, 2, 3) that assure access to reproductive health care for service members.  Among other things, the policies will now allow service members to receive travel and transportation allowances if abortion or assisted reproduction services are not available in the local area. The health care services however are at the service member's own expense. Different policies apply to covered abortions, those where the life of the mother would be endangered if the fetus were carried to term or the pregnancy was the result of rape or incest.

Kentucky Supreme Court Finds Procedural Problems with Abortion Providers' Attempt to Enjoin Abortion Bans

In Cameron v. EMW Women's Surgical Center, P.S.C., (KY Sup. Ct., Feb. 16, 2023), the Kentucky Supreme Court considered challenges by abortion providers to two Kentucky statutes banning abortions. The "trigger ban" prohibits all abortions, except when necessary to preserve the life of the mother or prevent permanent impairment of a life-sustaining organ. The "heartbeat ban" bars abortions after there is a detectable human heartbeat, with a similar exception for preserving the life of the mother or preventing irreversible impairment of a major bodily function. The trial court issued a preliminary injunction preventing enforcement of both laws. The state Court of Appeals granted emergency relief and dissolved the injunction, and then transferred the case to the state Supreme Court. In this opinion, the state Supreme Court affirmed the Court of Appeals dissolution of the injunction, holding that abortion providers lack third-party standing to challenge the laws on behalf of their patients. However, they held that abortion providers do have standing to challenge the "trigger ban" on their own behalf, and remanded the case to the trial court on that issue. Justice Lambert, joined by Justice Conley, said in part:

[T]he abortion providers’ arguments that the trigger ban improperly delegates legislative authority and that becomes effective on the authority of an entity other than the General Assembly remain live issues. If the abortion providers were to receive a favorable ruling on those issues, the statute would be invalidated if the offending enactment provision could not be severed. This in turn would provide the abortion providers with the relief they seek, satisfying the redressability prong of constitutional standing. 

However, although the abortion providers have constitutional standing to challenge the trigger ban on the foregoing two grounds, they made no arguments concerning their own rights in relation to the heartbeat ban. Their only assertion against the heartbeat ban was that it violated their patients’ constitutional rights to privacy and self-determination....

[T]he personal harm asserted by the abortion providers, the harm to their business, is not considered an irreparable injury for the purposes issuing a temporary injunction.

The circuit court also erred when balancing the equities involved....

To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion, as no appropriate party to raise that issue is before us. Nothing in this opinion shall be construed to prevent an appropriate party from filing suit at a later date....

This matter is accordingly remanded to the circuit court for the determination of the first-party constitutional claims of the abortion providers as to the trigger ban. Specifically, whether the trigger ban was an unlawful delegation of legislative authority in violation of Sections 27, 28, and 29 of the Kentucky Constitution and if the trigger ban became effective upon the authority of an entity other than the General Assembly in violation of Section 60 of the Kentucky Constitution.

Chief Justice VanMeter concurred only in the result.

Four other Justices each filed separate opinions, concurring in part and dissenting in part.

Justice Bisig, joined by Justice Keller, said in part:

Thus, while I concur with the majority’s conclusion that Plaintiffs have first-party standing to challenge the Trigger Ban and with their recognition of third-party standing for purposes of Kentucky law, I respectfully dissent from the remainder of their Opinion. I would reverse the Court of Appeals, affirm the trial court, and direct reinstatement of the temporary injunction....

Because the statutes infringe upon a pregnant patient’s fundamental rights to pursue safety and to self-determination and are likely not sufficiently narrowly tailored to a compelling government interest, I would hold that EMG presented a substantial question on the merits of the case below.

Justice Keller, joined by Justics Bisig, concurred in part, saying in part:

I concur with the Majority’s holding that the physicians have first-party standing to assert their claims in the case at bar. However, I dissent from the remainder of the Majority’s Opinion. Further, I join Justice Bisig’s separate opinion, as I also believe that the physicians have third-party standing to assert the claims of their patients and that the trial court did not abuse its discretion in granting the temporary injunction.

Nickell, J. concurred in part and dissented in part, saying in part:

I concur with the view that the trial court abused its discretion by enjoining the enforcement of the abortion bans. However, I respectfully dissent from any conclusion that Appellees have first-party standing or third-party standing to assert this pre-enforcement constitutional challenge. There should not be one set of procedural rules for abortion providers and another for everyone else.

Thompson, J. concurred in part, saying in part:

I concur in the majority opinion that first party standing was established for the abortion providers and dissent from its conclusion that they lacked third party standing. I believe we should err on the side of finding standing when at all possible, so that parties can gain needed review. 

Accordingly, I urge the trial court to fully exercise its authority on remand by freely allowing intervention by all interested parties so that first party standing may be established for all issues....

Liberty Counsel issued a press release announcing the decision. CNN reports on the decision.

Bankruptcy Reorganization Plan for Harrisburg Diocese Approved By Court

On Feb. 15, the U.S. Bankruptcy Court for the Middle District of Pennsylvania gave final approval to the Plan of Reorganization for the Catholic Diocese of Harrisburg. (Full text of Reorganization Plan.) (Announcement by Diocese.) A Questions and Answers document explaining the Plan says in part:

The Plan outlines how the RCDH and related entities will (a) establish a Survivor Compensation Trust, (b) provide funding to the Trust in an amount equal to $7,500,000 to provide financial restitution for survivors of clergy sexual abuse, and (c) adopt enhanced child protection protocols. In addition to the financial restitution from the RCDH and related entities, current and historical insurance providers will also contribute $10,750,000 to the Trust....

Prior to filing for reorganization, the RCDH authorized an independent Survivor Compensation Program be established, in order to provide financial restitution to abuse survivors. Through this program, $12,784,450 was provided to assist 111 survivors.... 

More than 60 proofs of claim were submitted during the reorganization process and may be eligible for financial distributions from the Survivor Compensation Trust....

The majority of the claims involve accusations against Diocesan priests. As part of the confirmation process, the Diocese issued a list of persons involved in the claims. That list is available www.hbgdiocese.org/reorganization-information. All claims of abuse received during the bankruptcy process were reported to law enforcement.

Links to all the major legal documents filed in the reorganization are available on the Diocese's website. WHP CBS21 reports on the Plan's approval. The Survivor's Network SNAP issued a press release reacting to the Plan approval.