Morrisey wins lawsuit, fights challenges to state laws
CHARLESTON – West Virginia Attorney General Patrick Morrisey took a loss Thursday at the U.S. Supreme Court with one case, but scored a victory with another while also preparing to defend two new state laws.
West Virginia was one of several states party to the federal lawsuit Fulton v. City of Philadelphia where a Catholic adoption agency was suing Philadelphia over a city ordinance requiring the agency to screen same-sex couples who expressed interest in adoption services.
In a unanimous decision released Thursday, the U.S. Supreme Court ruled in favor of Catholic Social Services. The justices sided against the city’s 2018 decision to no longer refer families to Catholic Social Services due to the city’s non-discrimination ordinances.
The agency was fine with approving LGBTQ individuals as adopted parents and adopting out children who identify as LGBTQ. Chief Justice John Roberts, who penned the majority opinion, determined the city’s policy violated the agency’s First Amendment constitutional right to freedom of religion. West Virginia filed a friend-of-the-court brief in support of Catholic Social Services.
“This is a major victory for the First Amendment in that the Supreme Court unanimously ruled that the government cannot discriminate against Catholic Social Services on the basis of its religious convictions,” Morrisey said. “This is truly a great win for the free exercise of religion.”
Morrisey’s victory in Fulton v. City of Philadelphia came shortly after Morrisey’s defeat Thursday in the U.S. Supreme Court in California v. Texas. In a 7-2 decision, the U.S Supreme Court ruled against Morrisey and 17 other Republican state attorneys general and two private individuals in their effort to overturn the Patient Protection and Affordable Care Act. A majority of justices ruled the attorneys general had no standing to bring the case in the first place.
The Attorney General’s Office also announced intentions of defending two state laws being challenged in state and federal court.
Kanawha County Circuit Judge Tera Salango granted a temporary restraining order Tuesday on behalf of the West Virginia AFL-CIO and 11 other unions to block implementation of House Bill 2009, the Paycheck Protection Act.
The unions filed suit last month against HB 2009, relating to limitations on the use of wages and agency shop fees by employers and labor organizations for political activities.
The law, which would have gone into effect Thursday, prohibits employers and payroll agents from withholding a portion of an employee’s wages and salaries for political activities on behalf of a union or any other private organization without express written authorization by the employee. The bill also prohibits state, municipal, and county governments from withholding union or club dues from a public employee’s wages or salaries.
Morrisey said the state will appeal Salango’s stay blocking implementation of the Paycheck Protection Act.
“Nothing in this legislation discriminates against unions,” Morrisey said. “Rather, it simply eliminates the burden on the government to engage in payroll deductions that benefit voluntary organizations, such as unions, labor organizations and clubs, while preserving deductions for employment benefits offered to all employees by virtue of their employment such as pensions, required tax withholding, insurance benefits and others.”
Morrisey also said the state will intervene in a case brought last month against the state by Lambda Legal, the state and national chapters of the American Civil Liberties Union and the law firm Cooley LLP against House Bill 3293 relating to transgender student participation in interscholastic athletic events.
The suit, filed in the U.S. District Court for the Southern District of West Virginia, was brought on
behalf of an 11-year-old transgender girl who planned to try out for her middle school’s cross-country team. HB 3293 requires student-athletes in middle school, high school or college to participate in sports that match their biological sex based on the student’s sex at the time of their birth.
“There is good reason for our office to intervene. Chief among them is the Attorney General’s constitutional duty to protect the state’s interest,” Morrisey said. “Fair competition and preserving women’s sports is paramount. Defending this law also will preserve the many opportunities Title IX opened up for girls and women everywhere.”
The defense of HB 3293 might become harder as President Joe Biden’s administration reverses previous interpretations of Title IX. The Department of Education announced this week that Title IX protections extend to transgender students, which prohibits sex-based discrimination. The Department of Justice also filed a brief in the state transgender student-athlete case siding with Lambda Legal.
“The state claims HB 3293 will protect athletic opportunities for girls,” wrote Assistant U.S. Attorney Fred Westfall Jr. “Neither the facts nor the law support that assertion. To be sure, there remain significant barriers to providing full equity in athletics for female students. But permitting participation by transgender girls, who make up ‘approximately one half of one percent’ of the United States’ population, is not one of them.”
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