April 30, 2017

SB 17-062: Prohibiting Institutions of Higher Education from Limiting Students’ Free Speech

On January 13, 2017, Sen. Tim Neville and Rep. Stephen Humphrey introduced SB 17-062, “Concerning the Right to Free Speech on Campuses of Public Institutions of Higher Education.”

The bill prohibits public institutions of higher education (public institution) from limiting or restricting student expression in a student forum. ‘Expression’ is defined to mean any lawful verbal or written means by which individuals communicate ideas to one another, including all forms of peaceful assembly, protests, speaking verbally, holding signs, circulating petitions, and disstributing written materials. ‘Expression’ also includes voter registration activities but does not include speech that is primarily for a commercial purpose.

A public institution shall not subject a student to disciplinary action as a result of his or her expression. A public institution shall not designate any area on campus as a free speech zone or otherwise create policies that imply that its students’ expressive activities are restricted to a particular area of campus. Additionally, a public institution shall not impose restrictions on the time, place, and manner of student speech unless such restrictions are reasonable, justified without reference to the speech’s content, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication of the information or message.

The bill states that it does not grant other members of the college or university community the right to disrupt previously scheduled or reserved activities in a portion or section of the student forum at that scheduled time. Additionally, the bill clarifies that it is not to be interpreted as preventing the public institution from prohibiting, limiting, or restricting expression that is not protected under the 1st Amendment.

A student who has been denied access to a student forum for expressive purposes may bring a court action to recover reasonable court costs and attorney fees.

The bill was introduced in the Senate and assigned to the Education Committee. It was amended in committee, and was again amended on Second and Third Reading in the Senate. It passed the Senate and was introduced in the House and assigned to the State, Veterans, & Military Affairs Committee.

HB 17-1013: Concerning the Free Exercise of Religion

On January 11, 2017, Reps. Stephen Humphrey & Dave Williams and Sens. Tim Neville & Vicki Marble introduced HB 17-1013, “Concerning a Person’s Free Exercise of Religion.”

The bill:

  • Specifies that no state action may burden a person’s exercise of religion, even if the burden results from a rule of general applicability, unless it is demonstrated that applying the burden to a person’s exercise of religion is essential to further a compelling governmental interest and the least restrictive means of furthering that compelling governmental interest;
  • Defines ‘exercise of religion’ as the practice or observance of religion. The bill specifies that exercise of religion includes the ability to act or refuse to act in a manner substantially motivated by a person’s sincerely held religious beliefs, whether or not the exercise is compulsory or central to a larger system of religious belief; except that it does not include the ability to act or refuse to act based on race or ethnicity.
  • Provides a claim or defense to a person whose exercise of religion is burdened by state action; and
  • Specifies that nothing in the bill creates any rights by an employee against an employer unless the employer is a government employer.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs Committee. It is scheduled to be heard in committee on January 25, 2017 at 1:30 p.m.

Colorado Court of Appeals: Property Need Not be Used Exclusively for Religious Purposes for Tax Exemption

The Colorado Court of Appeals issued its opinion in Grand County Board of Commissioners v. Colorado Property Tax Administrator on Thursday, January 14, 2016.

This appeal after remand concerned a religious exemption from property taxes. The YMCA owns properties in Grand County and Larimer County for which it applied for property tax exemptions based on religious purposes and charitable use. The state property tax administrator determined the properties were being used for religious purposes and granted an exemption. The Grand and Larimer County Boards of County Commissioners appealed, contending the YMCA’s use was not sufficiently religious to justify an exemption. The Board of Assessment Appeals held a hearing and found the properties were not used exclusively for religious purposes, reversing the property tax administrator’s determination. The YMCA appealed to the court of appeals and a division reversed the Board’s findings, concluding the Board failed to apply the proper legal standard and setting forth the statutory and constitutional framework for religious exemptions.

On remand, the Board found the YMCA properties qualified for the exemption because the properties furthered the YMCA’s stated religious mission and purposes and the properties were not being used for private gain or corporate profit. The counties appealed, arguing that because the use of the properties was not inherently religious, they should not qualify for the exemption. The court of appeals disagreed, finding the Board applied the correct legal framework on remand.

The court of appeals affirmed the Board’s decision to grant the YMCA properties tax exemptions.

Colorado Court of Appeals: Christian-Themed Child Care Center Not Religious Organization for Purposes of CESA

The Colorado Court of Appeals issued its opinion in A Child’s Touch v. Industrial Claim Appeals Office on Thursday, December 31, 2015.

Child Care Center—Elementary School—Kindergarten—Unemployment Compensation Benefits—Religious Organization—Exemption.

A Child’s Touch is a state-licensed child care center providing infant and toddler day care, preschool, and kindergarten programs for children from 6 weeks to 6 years of age, and a summer camp for children ages 6 to 12 years. Christian-themed iconography, prayers, and devotions are incorporated into its daily curriculum. Claimant served as a maintenance worker at A Child’s Touch from approximately 1997 until his termination in September 2013, when his position was eliminated while he was on medical leave for double hip replacement surgery. A Child’s Touch denied claimant’s unemployment compensation claim, and the hearing officer upheld the denial. The Industrial Claim Appeals Office (Panel) set aside the hearing officer’s decision and awarded claimant benefits.

On appeal, A Child’s Touch argued that claimant was not in covered employment and that, as a religious organization, it was exempt from unemployment compensation taxes under the Colorado Employment Security Act (CESA). A Child’s Touch was not principally supported by a church or association of churches at the relevant period of time. Further, a child care facility that offers day care, preschool, and kindergarten, but does not teach any higher grades, is not an “elementary school” for purposes of a religious exemption from unemployment compensation taxes under CRS § 8-70-140(1)(a). Accordingly, the Panel correctly determined that A Child’s Touch is not entitled to a religious exemption from unemployment compensation taxes under CESA. Accordingly, the Panel’s order was affirmed, and the case was remanded to the Division of Unemployment Insurance to determine claimant’s entitlement to and eligibility for unemployment compensation benefits.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Prisoner’s Claim Dismissed as Moot Where Basis for Claim No Longer Exists

The Tenth Circuit Court of Appeals issued its opinion in Ind v. Colorado Department of Corrections on Friday, September 11, 2015.

Jacob Ind has been in prison since 1992. In September 1995, he was assigned to administrative segregation at the Colorado State Penitentiary (CSP), where he was subject to a limitation of two personal books. He filed suit in March 2009, alleging the two-book limitation was a substantial burden on his sincerely held religious beliefs in violation of the constitution and RLUIPA. In June 2011, he was transferred out of administrative segregation and into the general population, where he is allowed 15 personal books. The Colorado Department of Corrections (CDOC) moved to dismiss his suit as moot, and the magistrate judge recommended it be dismissed for mootness, but the district judge concluded Ind would likely be returned to segregation in the future and denied the motion. The court held after a bench trial that the two-book limitation violated Ind’s RLUIPA rights and that if he were returned to segregation CDOC was enjoined from enforcing the policy against Ind. CDOC appealed, arguing the case was moot.

The Tenth Circuit began its review by evaluating the doctrine of mootness, noting the exceptions to the mootness doctrine include if (1) secondary or collateral injuries survive after resolution of the primary injury, (2) the issue is deemed a wrong capable of repetition but evading review, (3) the defendant voluntarily ceases an illegal practice but is free to resume at any time, or (4) it is a properly certified class action. The second and third exceptions were at issue in Ind’s case, and the district court applied the third exception in ruling the limitation violated RLUIPA as applied to Ind.

The Tenth Circuit examined the record and found it void of any evidence that Ind’s return to the general population was a ploy by CDOC to deprive the court of jurisdiction. Instead, the record showed that Ind completed the required phases of administrative segregation and was then returned to the general population. Ind argued that his history of having spent more than half of his imprisonment in administrative segregation demonstrated a reasonable probability that he would return there. The Tenth Circuit declined to assume that he would repeat the misconduct that caused him to enter administrative segregation in the first place, and further noted that he had spent four years in the general population since being released from segregation, three years of which were after the district court issued its order. The Tenth Circuit concluded it was undisputed that Ind’s release from administrative segregation ended the alleged violation of his rights, and the CDOC carried its burden of showing the challenged conduct could not reasonably be expected to resume.

The Tenth Circuit then turned to Ind’s assertion that the harm was capable of repetition but evading review. To avail himself of the exception, Ind must show that the challenged action was too short in duration to be litigated prior to its cessation and there is a reasonable expectation that the complaining party will be subject to the same action again. The Tenth Circuit found Ind’s argument failed at the second prong, because, pursuant to Tenth Circuit precedent, the circuit declined to assume Ind would repeat the misconduct for which he was previously sent to administrative segregation.

The Tenth Circuit reversed the district court’s decision and remanded with instructions to dismiss the case as moot.

Tenth Circuit: Image on License Plate Conveys Message of Oklahoma’s Native American History

The Tenth Circuit Court of Appeals issued its opinion in Cressman v. Thompson on Tuesday, August 4, 2015.

In 2008, a task force created by the Oklahoma legislature chose a new design for the standard Oklahoma state license plate featuring an image of a Native American shooting an arrow into the sky along with the words “Native America.” The design is based on a sculpture by an acclaimed Oklahoma artist depicting a story in which an Apache warrior fired an arrow blessed by a medicine man into the heavens in order to carry prayers for rain into the spirit world. The license plate design was chosen as a “mobile billboard” to promote tourism in Oklahoma.

Keith Cressman, an Oklahoma resident with conservative Christian beliefs, objected to the standard license plate because he believed it promoted a message of pantheism with which he disagrees. Cressman tried to avoid displaying the message by covering it but was told that covering any part of the license plate is illegal. Cressman objected to having to purchase a specialty plate and asserted that the state should give him a specialty plate at no extra charge. He filed a 42 U.S.C. § 1983 lawsuit in November 2011, alleging that the license plate constituted forced speech in violation of his First Amendment rights and requesting an injunction prohibiting state officials from prosecuting him for covering the image or, alternatively, requiring the Oklahoma Tax Commission to provide him a specialty plate at the same cost as the standard plate.

Defendants filed motions to dismiss based on lack of standing and failure to state a claim. The district court determined that Cressman had standing but dismissed the claim because Cressman had failed to state a plausible claim of compelled speech. Cressman appealed, and the Tenth Circuit determined that he had Article III standing and reversed for further proceedings based on the panel’s conclusion that Cressman’s complaint stated a plausible compelled-speech claim. On remand, the parties engaged in discovery and filed cross-motions for summary judgment and a joint stipulation of uncontested facts. The district court granted partial summary judgment to certain defendants and held a bench trial regarding the remaining claims. The district court ultimately concluded the Native American image did not provide a basis for Cressman’s First Amendment claim. Cressman again appealed.

The Tenth Circuit, engaging in de novo review, first discussed how the law of the case doctrine applied based on its previous ruling, thus precluding the defendants’ preliminary arguments that Cressman lacked standing. The Tenth Circuit also rejected defendants’ argument that because Cressman does not utilize the standard license plate at issue he does not have standing, finding instead that Cressman suffered an injury in fact by being forced to use the license plate, cover it illegally, or purchase a specialty plate at an extra cost. The Tenth Circuit also rejected defendants’ claim that the license plate was government speech, finding that private First Amendment rights could still be implicated because the license plates are “readily associated” with vehicle owners and the cars act as “mobile billboards” for the state.

Turning to the substance of the appeal, the Tenth Circuit characterized Cressman’s sole argument as whether he has been unconstitutionally compelled to speak by Oklahoma’s requirement that he either use the standard license plate with no modifications or purchase a specialty plate at extra cost. The Tenth Circuit found Cressman’s argument failed because he could not demonstrate that the Native American image was in fact the speech to which he objected. The Tenth Circuit found that although a reasonable observer might know the history of the image of the warrior shooting an arrow into the sky, that same reasonable observer would know that the image was chosen to further tourism in Oklahoma based on its history with Native Americans. Although Cressman argued it was “eminently reasonable” for an observer to associate the image with the pantheistic ideals of Native Americans, the Tenth Circuit disagreed. The Tenth Circuit concluded that the image conveyed the precise message intended by the Oklahoma task force — that Oklahoma’s history and culture has been strongly influenced by Native Americans — and found that it qualified as symbolic speech. Because Cressman expressly did not object to any message other than the pantheistic message, and because the message conveyed by the license plate was not that pantheistic message, the Tenth Circuit found he was not compelled to express a view to which he would otherwise object.

The Tenth Circuit affirmed the district court’s judgment in favor of the defendants. Judge McHugh concurred; she would have simplified the analysis pursuant to the Supreme Court’s ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015).

Tenth Circuit: Utilizing Religious Accommodation Is Not Substantial Burden on Religious Exercise

The Tenth Circuit Court of Appeals issued its opinions in Little Sisters of the Poor v. BurwellSouthern Nazarene University v. Burwell, and Reaching Souls International v. Burwell on Tuesday, July 14, 2015.

Plaintiffs in the three companion cases are non-profit religious organizations who contend that the religious exemption to the Affordable Care Act’s birth control mandate substantially burdens their free exercise of religion. The Affordable Care Act requires employer-sponsored health plans to meet minimum coverage requirements, including covering preventive health care services. Coverage of women’s preventive health care services must include all FDA approved contraceptives, sterilization procedures, and patient education and counseling. An exemption for nonprofit religious employers was created in the Act, and a religious employer can receive the exemption if it (1) has religious objections to providing some or all of the contraceptive services mandated by the Act, (2) is organized and operates as a non-profit entity, (3) holds itself out as a religious organization, and (4) self-certifies that it satisfies the first three criteria. In order to utilize the exemption, organizations must submit a form to their health insurance issuer or third-party administrator notifying the insurer that the organization is exempt from the contraception mandate. This triggers a requirement that the insurer fulfill the contraception mandate without sharing costs with the exempt organization.

The religious organizations objected to the exemption procedures, contending that by sending the form to their insurers, they were complicit in the provision of contraception because sending the form triggers the insurers’ responsibility to provide contraception coverage. Plaintiffs argued that by sending the form and triggering the insurers’ coverage requirement, their right to free exercise of religion was substantially burdened. The district courts reached different conclusions in each of the three cases before the Tenth Circuit, denying a preliminary injunction in the Little Sisters case but granting it in the Southern Nazarene and Reaching Souls cases.

In the Little Sisters case, the district court determined that complying with the accommodation scheme would not impose a substantial burden on the businesses’ religious exercise. The court’s analysis of the preliminary injunction factors “began and ended by examining whether the plaintiffs would suffer irreparable injury if the requested relief were denied” and found it was the court’s duty to determine how the regulations operate as a matter of law. The district court concluded the accommodation scheme does not require Little Sisters to provide or participate in the provision of contraceptive coverage.

In Southern Nazarene, the district court analyzed the plaintiffs’ likelihood of success on the merits and determined the form imposed a substantial burden on plaintiffs’ sincere religious exercise. The court determined the government failed to show a compelling governmental interest or showed its approach was the least restrictive approach, and granted the preliminary injunction.

In Reaching Souls, the district court also analyzed the plaintiffs’ likelihood of success on the merits. The court rejected the government’s argument as a “variation of a proposition rejected” in Hobby Lobby, and emphasized that regardless of whether signing the form actually triggered the provision of contraceptive services, the plaintiffs believed signing the form signaled their tacit approval or complicity. The district court granted a preliminary injunction.

Before reaching the merits of the appeals, the Tenth Circuit highlighted the unusual nature of the plaintiffs’ claims. The Tenth Circuit distinguished the Hobby Lobby case and other RFRA cases, since those plaintiffs could not avail themselves of the religious employer exemption. The Circuit quoted its closest analog case, United States v. Friday, noting “‘Law accommodates religion; it cannot wholly exempt religion from the reaches of the law.'”

The Tenth Circuit admonished the religious organizations, noting that whether the form constitutes a substantial burden is a legal question to be left to the courts, not a subjective matter for an organization to decide. Finding the accommodation permissible under the RFRA, the Tenth Circuit noted that the plaintiffs do not “trigger” contraceptive coverage by opting out of direct provision because federal law, not the act of plan participants, mandates contraceptive coverage. Rather than becoming complicit in the contraceptive scheme, opting out relieves the plaintiffs of all complicity. The Tenth Circuit characterized the form completion as a de minimus administrative task. Although the plaintiffs and the dissent argue that by opting out the plaintiffs cause the legal responsibility for providing coverage to shift to the insurer, the Tenth Circuit found that shifting the responsibility to the insurer relieved the organization of its obligation to provide coverage. The Circuit noted that such arrangements are common and among permissible methods of religious accommodation in a pluralist society.

Analyzing the RFRA, the Tenth Circuit again stressed that “whether a law substantially burdens religious exercise . . . is a matter for courts—not plaintiffs—to decide.” Courts need not question whether a religious petitioner correctly perceived the commands of his or her faith, but rather whether a challenged law or policy substantially burdens religious exercise. The Tenth Circuit noted “accepting any burden alleged by Plaintiffs as ‘substantial’ would improperly conflate the determination that a religious belief is sincerely held with the determination that a law or policy substantially burdens religious exercise.” The Tenth Circuit found that accommodations such as the exemption at issue may eliminate burdens on religious exercise or reduce them to de minimus administrative tasks.

The Tenth Circuit rejected the plaintiffs’ argument that delivering the form “triggers” contraceptive coverage, emphasizing that federal law, not the form or delivery, mandates coverage. It found that the arrangement shifting responsibility of coverage “is typical of religious objection accommodations that shift responsibility to non-objecting entities only after an objector declines to perform a task on religious grounds.” The Tenth Circuit instructed that a religious accommodation reconciles rule of liberty with rule of law, so that when a religious institution is faced with a conflict between following the law or following religious belief, the religious objector can seek exception from the law without having to break it. The Tenth Circuit noted that shifting the burden from an objecting party to a non-objecting one is the point of accommodation.

The Tenth Circuit next turned to the plaintiffs’ arguments that the act of opting out makes them feel complicit in the overall contraceptive coverage scheme. The Tenth Circuit was not persuaded. Instead, it found that the exemption serves to ensure that plaintiffs are not complicit in the delivery of contraceptive services: “Opting out sends the unambiguous message that they oppose contraceptive coverage and refuse to provide it.” Since the only involvement of plaintiffs in the scheme of contraceptive coverage is the act of opting out, the Tenth Circuit found this did not impose a substantial burden, noting that all opt-out schemes require some affirmative action and having to file paperwork does not alone substantially burden religious exercise. The Tenth Circuit that plaintiffs’ religious objections cannot hamstring government efforts to ensure plan participants receive the coverage to which they are legally entitled.

Turning next to the plaintiffs’ First Amendment arguments, the Tenth Circuit found no merit in plaintiffs’ contention that the exemption requirement simultaneously compels and silences their speech in violation of the First Amendment. The Tenth Circuit applied the same analysis to the First Amendment claims as it applied to the RFRA claims. The Tenth Circuit found the ACA neutral and generally applicable, and determined the exemption “was developed to facilitate the free exercise of religion, not to target religious groups or burden religious practice.”

The Tenth Circuit affirmed the district court’s denial of a preliminary injunction in Little Sisters and reversed the district court’s grant of a preliminary injunction in Southern Nazarene and Reaching Souls. Judge Baldock dissented.

Tenth Circuit: No Agency Relationship Existed Between Purported Ministers and Church that would Supersede Tax Liability

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hartshorn on Monday, June 2, 2014.

Kevin Hartshorn was the head minister of the Church of Compassionate Service, which he founded in 2004. Hartshorn encouraged members to become “ministers,” whereby they would transfer all of their assets to the church and assign all of their income to the church. Hartshorn assured ministers that by transferring all of their assets and income to the church and taking a vow of poverty and obedience, they would be exempt from personal income tax liability. Approximately 90% of each minister’s earnings were returned to the minister as “local ministry funding.” The district court issued an injunction against Hartshorn under 26 U.S.C. § 7408, and Hartshorn appealed.

The Tenth Circuit analyzed the five factors for issuing injunctive relief: “(1) Defendant organized an entity, plan, or arrangement; (2) he made false or fraudulent statements concerning the tax benefits to be derived from the entity, plan, or arrangement; (3) he knew or had reason to know that the statements were false or fraudulent; (4) the false or fraudulent statements pertained to a material matter; and (5) an injunction was necessary to prevent recurrence of this conduct.” Only factors two and three were in dispute; Hartshorn argued that he did not believe the statements regarding non-payment of income taxes to be false or fraudulent. The Tenth Circuit considered whether a minister’s income is tax exempt only if he receives it as an agent of the church or whether it is sufficient that a minister assigns earnings to his church pursuant to a vow of poverty, and noted that all of the circuit courts that had considered the issue had determined that a minister must earn income as an agent of his church in order for his earnings to be tax exempt. Next, the Tenth Circuit examined the agency relationship between Hartshorn’s ministers and the church, and determined that there was no agency relationship – the ministers continued their life as usual with the sole exception that their paychecks were deposited in a church account instead of a personal account.

The Tenth Circuit affirmed the injunction, concluding a reasonable person in Hartshorn’s position would know that his representations regarding the tax consequences of the ministers’ actions were false. Judge O’Brien concurred eloquently.

Tenth Circuit: Summary Judgment for Prison Officials in RLUIPA Sweat Lodge Case Vacated

The Tenth Circuit Court of Appeals published its opinion in Yellowbear v. Lampert on Thursday, January 23, 2014.

Andrew Yellowbear is in a Wyoming prison for murdering his daughter. He is an enrolled member of the Northern Arapaho Tribe and seeks access to the prison’s existing sweat lodge to facilitate his religious exercises. The prison’s sweat lodge is located in the general prison yard and Yellowbear is housed in a special protective unit because of threats against him. Prison officials refused to allow his use of the sweat lodge, saying that the cost of providing the necessary security to take Yellowbear from the special protective unit to the sweat lodge and back is “unduly burdensome.” Yellowbear filed suit against prison officals and sought injunctive relief under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The district court entered summary judgment for the defendants.

The Tenth Circuit held that Yellowbear had satisfied his burden under RLUIPA to show his use of the sweat lodge would be a religious exercise motivated by sincere religious belief. He also met his summary judgment stage burden of showing the prison substantially burdened that exercise by prohibiting him from any access to the sweat lodge.

For the government to prevail, it had to show prohibiting access serves a compelling state interest and is the least restrictive means of furthering that interest in this case. The court found the government had not met its burden. It did not quantify the costs it would incur in providing security to take Yellowbear to and from the sweat lodge. Additionally, prison lockdowns already occurred daily for nonreligious reasons, such as transporting other specially housed inmates to the medical unit. The defendants did not address this evidence so the inference that the prison would not perform lockdowns for religious exercise because of a discriminatory reason was not countered.

The defendants also argued that granting Yellowbear’s request would lead to a flood of requests from other specially housed inmates but provided no information to back up that speculative claim.

The court held that the prison also failed to meet its burden of showing its policy of prohibiting Yellowbears’s access was the least restrictive means necessary to further its compelling interest. The prison did not demonstrate that Yellowbear’s suggested alternatives were ineffective in meeting the prison’s goals. Showing that he refused the prison’s suggested alternatives was not enough.

The court explained that its decision was made on the basis of absolutes (no access granted) at the summary judgment stage and that the relative strengths of the parties’ positions may change. The court vacated summary judgment for the defendants.

Tenth Circuit: Contraceptive Mandate in Affordable Care Act May Substantially Burden For-Profit Companies Under RFRA

The Tenth Circuit Court of Appeals published its opinion in Hobby Lobby Stores, Inc. v. Sebelius on Thursday, June 27, 2013.

Hobby Lobby is a craft store chain, and Mardel is a Christian bookstore chain. Both are for-profit companies. Their owners, the Greens, run both companies as closely held family businesses and operate them according to a set of Christian principles. They contended regulations implementing the 2010 Patient Protection and Affordable Care Act force them to violate their sincerely held religious beliefs. In particular, the plaintiffs brought an action challenging a regulation that requires them, beginning July 1, 2013, to provide certain contraceptive services as a part of their employer-sponsored health care plan.

In a 165 page opinion, containing six separate opinions, a divided en banc Tenth Circuit decided Hobby Lobby and Mardel were entitled to bring claims under the Religious Freedom Restoration Act (RFRA), had established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and had established an irreparable harm. The irreparable harm would be the fines the companies would face if they dropped their insurance coverage completely or did not provide the mandated contraceptive coverage. The court remanded the case to the district court for further proceedings on two of the remaining factors governing the grant or denial of a preliminary injunction (balance of equities and public interest).