A COURT DECISION LEADING NOWHERE

We have repeatedly reported opinions of the United States Court of Appeals for the 9th Circuit that reveal a political agenda at work to suppress a legal one.  In 2019, in flagrant disregard of United States Supreme Court rulings to the contrary, see, Hosanna-Tabor Evangelical Lutheran Church & School v E.E.O.C., 565 US 171 (2012), the 9th Circuit continued holding that Catholic school teachers could still make federal employment law claims even though extra-ordinary dissents among their own ranks resulted.  See, Biel v St. James School, 911 F3d 603 (9th Cir. 2018).  The Supreme Court reversed the 9th Circuit.  Our Lady of Guadalupe School v Morrissey-Beru consolidated with St. James School v Biel, ___US___, 140 S. Ct. 2049 (2020).  The 9th Circuit uses various means to navigate past the First Amendment, the Ecclesiastical Abstention Doctrine, and the Ministerial Exception.

In Cedar Park Assembly of God v Kreidler, Order (WD Wash., 2022) the federal trial court ultimately allowed the Plaintiff’s challenge to state statutes imposing on church employers the duty to include abortion coverage in their medical coverage.  The 9th Circuit reversed a prior ruling of the federal trial that had swept aside a Free Exercise claim but affirmed that the church waived its Establishment Clause claim for failing to brief it in the church’s opening brief before the 9th Circuit.  Sadly, the error of the federal trial court pushed the church to the 9th Circuit and the lawyer for the church either made a drafting error or did not think that issue was before the 9th Circuit.  In any event, treating constitutional level jurisdictional challenges as waivable in an interlocutory appeal, particularly in light of a remand, seems typical of the 9th Circuit.  Also, ignoring the authority of the United States Supreme Court is another hallmark.  This issue was decided in Burwell v Hobby Lobby Stores, Inc., 573 US 682 (2014).  Amazingly, the Burwell opinion is not discussed in the Cedar Park Order by the federal trial court.  In any event, the Free Exercise claim, which is an Establishment Clause claim, are simply some of the names given to First Amendment claims.  The 9th Circuit seems to treat the language of the First Amendment (“Congress shall make no law…”) as subservient to its political agenda.

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