South Carolina Doctors Challenge Abortion Ban on Free Exercise Grounds

Suit was filed last week in a South Carolina federal district court by five physicians who contend that South Carolina's abortion ban violates their religious and conscientious beliefs in violation of the First Amendment's free exercise clause. The complaint (full text) in Bingham v. Wilson, (D SC, filed 1/8/2025), alleges in part:

137. Plaintiffs hold sincere religious and conscientious beliefs that they have unwavering duties to respect the dignity of every person, help people in critical need, and place others before themselves. For Plaintiffs, that includes using their medical training to honor a patient’s request to end a pregnancy that threatens to deeply harm her.

The complaint focuses on the narrow exceptions from the abortion ban in South Carolina law for health of the mother, rape or incest, and fatal fetal anomaly and contends:

168. It is neither religiously neutral nor generally applicable for South Carolina to allow abortion under the Abortion Ban’s secular Exceptions while criminalizing abortion when Plaintiffs’ religious beliefs compel it in substantially similar circumstances. 

169. In sum, South Carolina has criminalized religious conduct while allowing secular conduct that undermines its purported state interest in similar ways. In doing so, the State has made a value judgment that secular motivations for abortion care are important enough to overcome this interest, but that religious motivations are not. South Carolina has thus singled out religious conduct for unfavorable treatment.

Plaintiffs also allege that the health and fetal anomaly exceptions in the law are unconstitutionally vague.

Washington Examiner reports on the lawsuit.  [Thanks to Thomas Rutledge for the lead.]

Cert. Granted in Appointments Clause Case; Underlying Issue Is Religious Objection to Insurance Coverage Mandate

The U.S. Supreme Court yesterday granted review in Becerra v. Braidwood Management, Inc., (Docket No. 24-316, certiorari granted 1/10/2025).  (Order List). The issue before the Supreme Court set out in the petition for certiorari is whether the structure of the U.S. Preventive Services Task Force violates the Appointments Clause of the Constitution. Health insurance plans are required to cover without cost sharing various preventive services recommended by the Task Force and by two other advisory bodies. As explained in the 5th Circuit opinion being reviewed, plaintiffs object on religious grounds to providing the Task Force's mandated insurance coverage for pre-exposure drugs that prevent the transmission of HIV. Plaintiffs contend that this coverage makes them complicit in facilitating homosexual behavior, drug use and sexual activity outside of marriage. UPI reports on the Court's action.

Court Invalidates New Title IX Rules That Protected Transgender Students

In State of Tennessee v. Cardona, (ED KY, Jan. 9, 2025), a Kentucky federal district court issued a vacatur order invalidating rules under Title IX adopted by the Department of Education last April. Plaintiffs challenged provisions that extended sex discrimination bans to discrimination on the basis of gender identity. The court said in part:

Because the Final Rule and its corresponding regulations exceed the Department’s authority under Title IX, violate the Constitution, and are the result of arbitrary and capricious agency action, the plaintiffs’ motions for summary judgment will be granted....

... [T]he Final Rule’s definitions of sex discrimination and sex-based harassment, combined with the de minimis harm standard, require Title IX recipients, including teachers, to use names and pronouns associated with a student’s asserted gender identity....

The plaintiffs reasonably fear that teachers’ (and others’) speech concerning gender issues or their failure to use gender-identity-based pronouns would constitute harassment under the Final Rule.  Put simply, the First Amendment does not permit the government to chill speech or compel affirmance of a belief with which the speaker disagrees in this manner....

The Final Rule also is vague and overbroad. ....

... [A] vacatur order “takes the unlawful agency action ‘off the books’”—“an entirely appropriate response when a plaintiff successfully establishes that the agency’s conduct violates the law.”...  Vacatur operates on the rule itself and prevents the rule’s “application to all who would otherwise be subject to its operation.” ... See Kentucky, 728 F. Supp. 3d at 522 (quoting East Bay 

Although the Court has discretion to craft a different remedy, there is no reason to do so here.

ADF issued a press release announcing the decision.

Ecclesiastical Abstention Doctrine Does Not Apply To Pastor's Defamation Suit

In Garner v. Southern Baptist Convention, (TN App., Jan. 8. 2025), a Tennessee state appellate court held that the ecclesiastical abstention doctrine does not apply to a defamation suit brought by a Baptist pastor against the Southern Baptist Convention and various of its officials and staff. At issue are oral conversations and a letter from an SBC staff member suggesting that allegations of sexual misconduct had been made against Preston Garner, a pastor at Everett Hills Baptist Church. The court said in part:

The conduct at issue is the Appellants’ purported publication of written and oral statements that Mr. Garner was “an individual with an alleged history of abuse” and that the allegation was credible, while failing to also state that “the allegation[ was] made through an anonymous online portal” and that the Appellants “had not made any inquiry into the veracity of the anonymous report, or that no evidence supported the anonymous report.”  ... [T]he Appellants in this case have not raised any argument that their conduct resulted from the application or interpretation of any religious canon.  Moreover, any argument by the Appellants that the Letter was sent as part of a pastoral disciplinary process is undercut by the concession of the SBC and the Credentials Committee that “[t]he Credentials Committee does not ‘investigate what occurred or judge the culpability of an accused individual,’ but rather only reviews ‘how the SBC church responded to sexual abuse allegations and make[s] recommendations as to whether those actions or inactions are consistent with the SBC’s beliefs regarding sexual abuse.’”

... [C]onsidering the Garners’ claims will not require the trial court to resolve any religious disputes or to rely on religious doctrine. 

The court also concluded that the Tennessee Public Participation Act applies to the lawsuit, but that plaintiffs had carried their burden of proof needed to avoid early dismissal of the case.

The Religious Affiliations of Members of 119th Congress Are Reported

The Pew Research Center has published a study of the religious affiliation of members of the 119th Congress which began last week. In an article titled Faith on the Hill, Pew reports that 86.7% of the voting members of the Senate and House combined are Christian.  55.5% are Protestant and 28.2% are Catholic. The largest Protestant denomination represented is Baptist.  Other Christian denominations represented are Latter Day Saints (1.7%), Orthodox Christians (1.1%) and Messianic Jewish (0.2%).  6% of the new Congress is Jewish. Other religious groups represented by 4 or fewer members (less than 1%) each are Muslim (4), Hindu (4), Buddhist (3), Unitarian Universalist (3) and Humanist (1).  3 members report that they are unaffiliated. Affiliation of 21 members (3.9%) is unknown.

Challenges to School Policy on Disclosure of Gender Identity Change May Move Ahead

In Mirabelli v. Olson, (SD CA, Jan. 7, 2025), a California federal district court denied motions to dismiss a suit brought by teachers and parents challenging a policy of the state board of education that schools are not to disclose a student's announced change of gender identity to the student's parents without the student's consent. The policy is intended to protect student privacy.  Among other challenges, plaintiffs claimed that the policy violates their 1st Amendment free exercise and free speech rights. The court said in part:

According to the Complaint, the policies force parents to accede to a school’s plan to neither acknowledge nor disclose information about their child’s gender dysphoria.  By concealing a child’s gender health issues from the parents, parents are precluded from exercising their religious obligations to raise and care for their child at a time when it may be highly significant, because they are kept uninformed of the need for their child’s religious guidance.  “....

... Teachers do not completely forfeit their First Amendment rights in exchange for public school employment.  To the extent that teachers allege (as they do here) that EUSD has hired their speech to speak falsely or deceptively to parents of students, the teachers make out a plausible claim for relief under the First Amendment’s Free Speech Clause.  Likewise, to the extent teachers allege (as they do here) that EUSD’s curriculum includes what the teachers sincerely believe to be lies and deceptions for communications with school parents and that such prevarications are religiously or morally offensive, the teachers make out a plausible claim for relief under the First Amendment’s Free Exercise Clause.  EUSD contends that it is not a lie to not answer a question.  That the teachers sincerely held religious beliefs to the contrary cannot be simply dismissed....

There are no controlling decisions that would compel this Court to limit or infringe parental rights, notwithstanding the State’s laudable goals of protecting children.  This Court concludes that, in a collision of rights as between parents and child, the long-recognized federal constitutional rights of parents must eclipse the state rights of the child.  Therefore, the Court finds that the Plaintiffs have stated plausible claims upon which relief can be granted and the motions to dismiss are denied.

1st Circuit Hears Oral Arguments in Religious Schools' Challenge to Anti-Discrimination Provisions

In 2022, the U.S. Supreme Court held that Maine cannot exclude parochial schools from participating in its program that pays tuition for certain out-of-district students. While that litigation was pending, the Maine legislature amended state law to provide that schools receiving state funds cannot discriminate on the basis of religion, sexual orientation or gender identity. This had the effect of excluding Catholic and certain other Christian schools.  On Monday, the U.S. 1st Circuit Court of Appeals heard oral arguments in two cases challenging that anti-discrimination law on free exercise grounds:

One case was St. Dominic Academy v Makin (audio of full oral argument). In the case, a Maine federal district refused to preliminarily enjoin enforcement of Maine's educational and employment antidiscrimination laws in a suit brought by a Catholic diocese, a Catholic school and a Catholic family. (See prior posting.) Becket issued a press release giving additional background.

The second case was Crosspoint Church v Makin (audio of full oral argument). In the case, a Maine federal district court refused to enjoin application of the state's educational antidiscrimination laws against a private Christian school. (See prior posting.) First Liberty Institute issued a press release giving additional background.

4th Circuit: Covid Vaccine Religious Accommodation Suit Should Not Have Been Dismissed

 In Barnett v. INOVA Health Care Services, (4th Cir., Jan. 7, 2025), the U.S. 4th Circuit Court of Appeals reversed the dismissal of Title VII and state law claims by a former registered nurse who was denied a religious exemption or accommodation from her employer's Covid vaccine mandate. The court said in part:

Barnett has sufficiently alleged her beliefs are religious in nature.  Specifically, Barnett alleged, amongst other things:  (1) “it would be sinful for her to engage with a product such as the vaccination after having been instructed by God to abstain from it”; (2) her “religious reasons for declining the covid vaccinations. . . were based on her ‘study and understanding of the Bible and personally directed by the true and living God’”; and (3) receiving the vaccine would be sinning against her body, which is a temple of God, and against God himself....  At this stage, these allegations are sufficient to show that Barnett’s “belief is an essential part of a religious faith” that “must be given great weight[,]” ... and are plausibly connected with her refusal to receive the COVID-19 vaccine.

2nd Circuit Affirms Dismissal of Louis Farrakhan's Suit Against ADL

In Farrakhan v. Anti-Defamation League, (2nd Cir., Jan. 3, 2025), the U.S. 2nd Circuit Court of Appeals affirmed the dismissal of a suit brought against the Anti-Defamation League by Minister Louis Farrakhan and the Nation of Islam that alleged free speech and defamation claims. Upholding the trial court's dismissal of the First Amendment claims for lack of standing, the court said in part:

To the extent plaintiffs assert claims against defendants because third parties—Morgan State University and Vimeo—denied or rescinded plaintiffs’ access to speech platforms, those alleged First Amendment injuries are not fairly traceable to the defendants’ actions....

Plaintiffs’ remaining First Amendment claims do not state any injuries in fact....

As to the defamation claims, the court said in part:

Plaintiffs challenge a number of defendants’ statements that label plaintiffs in various ways as “anti-Semitic.”  Under New York law, these statements are nonactionable opinions....

Plaintiffs also challenge statements made by defendants interpreting Farrakhan’s own statements.  The challenged statements were either accompanied by disclosures of Farrakhan’s actual statements or were based on Farrakhan’s statements that were widely reported by the media....

Finally, plaintiffs challenge certain of defendants’ factual statements.  On de novo review, we agree with the district court that the SAC fails to sufficiently allege the falsity of those statements.  

Jonathan Turley reports on the decision.

President Biden Sends Greetings on Orthodox Christmas

In a Statement released today (full text), President Biden and Jill Biden sent greetings to Orthodox Christians who are celebrating Christmas today. The Statement says in part:

Today, we pray for Orthodox Christians who are suffering around the world due to war, conflict, deprivation, and oppression. They, like all human beings, are created in the image of God, and deserve safety and security, dignity and respect. We will continue to advocate for these core principles, including religious freedom, and on this day, we keep these communities close to our hearts.

Suit Challenges Museum's Diversity Policy as Violative of Employee's Religious Beliefs

Suit was filed last week in a New York federal district court by an employee of the Genesee Country Museum who was fired from her managerial position because her religious beliefs were inconsistent with the Museum's Diversity, Equity, Acceptance and Inclusion Policy. The complaint (full text) in Berkemeir v. Genesee County Museum, (WD NY, filed 1/2/2025), alleges that plaintiff's dismissal violates her free exercise and free speech rights, the Equal Protection Clause, and Title VII of the 1964 Civil Rights Act as well as other statutes. The complaint specifically focuses on requirements to address individuals by their preferred pronouns, but also sets out broader objections, stating in part:

80. Plaintiff also has the sincerely held religious belief, compelled by Scripture, that she is to “take no part in the unfruitful works of darkness,” but to “expose them.”... 

81. Plaintiff also has the sincerely held religious belief, compelled by Scripture, that silence in the face of evil is evil itself....

84. Plaintiff also has the sincerely held religious belief that for her to fail to speak out against things she knows are wrong results in the eternal condemnation of her soul....

228. Plaintiff’s sincerely held religious beliefs that compelled her to view all people as created by God in His image and equally deserving of respect did not comport with Defendants’ newly minted program of requiring all employees to view white people as “born oppressors” and somehow undeserving of identical respect and treatment. 

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

Louisiana AG Issues Guidance to Schools on Posting the Ten Commandments in Classrooms

Last week, Louisiana Attorney General Liz Murrill issued Guidance (full text) to public schools on implementing the state's new Ten Commandments Law that requires display of the Ten Commandments in each public-school classroom. The Guidance requires posting only if the displays themselves or funding for the displays are donated. The Guidance includes four separate thematic posters that pair the Ten Commandments with other pictures or texts.  The Attorney General says that these assure the constitutionality of the displays. Schools may choose any of the posters. The themes of the posters are The House of Representatives & the Lawgivers; The Supreme Court & the Lawgivers; Religion's Role in American Public Education; and The Supreme Court & the Religion Clauses of the Constitution. Reporting on the new Guidance, the Louisiana Illuminator points out that "The new law does not include any punishment for not posting the display in classrooms." A federal district court has enjoined five Parishes from implementing the new law. (See prior posting.) The state is appealing that decision to the Fifth Circuit. [Thanks to Scott Mange for the lead.]

Church of Satanology's Suit to Display Banner in Schools Moves Ahead

In Stevens v. School Board of Broward County, Florida, (SD FL, Jan. 2, 2025), a Florida federal district court refused to dismiss free exercise, free speech and Establishment Clause claims brought by a minister of The Church of Satanology and Perpetual Soiree whose request to display a religious banner at a high school and a middle school were denied. Schools had permitted other churches to display banners, but refused plaintiff's request to display a banner reading "Satan Loves the First Amendment". The court said in part:

... Reverend Stevens has adequately alleged that he “has engaged in the exercise of religion.”... The school board’s arguments as to the lack of evidence regarding the Church’s tenets are better addressed on a motion for summary judgment or at trial, not on a motion to dismiss. And by preventing Reverend Stevens from displaying these banners, the school board has allegedly “substantially burdened this religious exercise.”...

The Court concludes that Reverend Stevens has stated a claim for viewpoint discrimination.  

The school board has arguably created a limited public forum at its schools by allowing some advertisements to be displayed on school grounds. ...

To the extent that Reverend Stevens’s First Amendment claim is brought as an Establishment Clause claim, rather than a Free Exercise Clause claim, the school board has not established that it should be dismissed....