Challenges To Alabama COVID-19 Orders Are Unsuccessful

In Case v. Ivey, MD AL, June 1, 2021), six plaintiffs brought a range of constitutional challenges to Alabama Governor Kay Ivey's COVID-19 Orders. In a 68-page opinion, the court dismissed all of them-- some on standing or mootness grounds, others on substantive or qualified immunity grounds. Among the claims, one plaintiff contended that the Orders denied her the right to attend the church of her choice. Two pastors claimed that the Orders resulted in the denial of their right to preach and conduct in-person services. The court concluded that defendants had qualified immunity as to the damage claims against them for violating the First Amendment's Free Exercise, Freedom of Assembly and Establishment Clauses because plaintiffs did not plausibly allege that defendants’ conduct violated law that was clearly established at the time of their actions.

Suit Against Alabama Is Dropped After Voter Registration Form Is Amended

Last October, the Freedom From Religion Foundation sued Alabama's Secretary of State challenging language in Alabama's voter registration form. The oath in the form ends with "so help me God." (See prior posting.) Yesterday, FFRF announced that it is voluntarily dismissing the suit because Alabama has amended the form to allow voters to opt out of that language. The new mail-in form allows a voter to check a box that says, "OPTIONAL: Because of a sincerely held belief, I decline to include the final four words of the oath above." The online form has also been changed.

Supreme Court Allows Execution Only If Clergy of Choice Allowed In Execution Chamber

As reported by SCOTUSblog, in a jigsaw puzzle-like set of opinions and orders the U.S. Supreme Court last night just before midnight Eastern Time allowed Alabama to move ahead with the execution of convicted murderer Willie Smith-- but only if the state allowed him to have the Pastor of his choice with him in the execution chamber. In Dunn v. Smith, (US Sup. Ct., Feb. 11, 2021), a majority of the Court refused to lift an injunction issued the day before by the 11th Circuit (see prior posting) holding that Alabama's exclusion of all clergy from the execution chamber violates RLUIPA. The order refusing to vacate the 11th Circuit's injunction was unsigned. However Justice Kagan wrote a concurring opinion, joined by Justices Breyer, Sotomayor and Barrett, saying that RLUIPA "sets a high bar for Alabama to clear." They added:

Prison security is, of course, a compelling state interest. But past practice, in Alabama and elsewhere, shows that a prison may ensure security without barring all clergy members from the execution chamber. Until two years ago, Alabama required the presence of a prison chaplain at an inmate’s side. (It gave up the practice only when this Court barred States from providing spiritual advisors of just one faith.) Still more relevant, other jurisdictions have allowed clergy members with no connection to the government to attend an inmate’s execution.... , dissenting from denial of application to vacate injunction). Nowhere, as far as I can tell, has the presence of a clergy member (whether state-appointed or independent) disturbed an execution.

Justice Kavanaugh, in an opinion joined by Chief Justice Roberts, dissented, saying in part:

Because the State’s policy is non-discriminatory and, in my view, serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room, I would have granted the State’s application to vacate the injunction.

Justice Thomas indicated (without joining the dissenting opinion) that he would have vacated the 11th Circuit's injunction.   Neither Justice Alito or Gorsuch indicated how they voted, but at least one of them would have had to agree with the 11th Circuit for the majority vote which the Court's unsigned Order commanded.

But this did not end the matter because there was also another outstanding stay of execution in the case which the 11th Circuit had granted on Feb. 10 in order to consider a different challenge to the execution. The Supreme Court yesterday vacated that stay (Order List) so that the execution, with the Pastor present, could move ahead.

As reported by SCOTUSblog, in the end the execution was not carried out because the execution warrant expired a midnight Central Time, only one hour after the Supreme Court orders were handed down.

11th Circuit: Pastor Should Be Allowed In Execution Chamber

In Smith v. Commissioner, Alabama Department of Corrections, (11t Cir., Feb. 10, 2021), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, reversed an Alabama district court's denial of an injunction to an inmate seeking to have his pastor present in the execution chamber with him. Prison rules allow only members of the execution team and certain medical personnel to be present. Focusing on RLUIPA, the majority said in part:

Although it correctly found Smith had a sincere belief that Pastor Wiley should be present in the execution chamber, the court erred by finding Smith’s exercise of that belief was not substantially burdened simply because Smith expressed a “preference” rather than prove his belief was fundamental to his religion. The court also improperly relied on alternative ways that Smith could practice his religion, including that Smith can visit and pray with Pastor Wiley leading up to his execution and Pastor Wiley can observe the execution from the viewing room.

The majority went on to conclude that while the state has a compelling interest in prison security, its policy is not the least restrictive means of achieving that interest.  It could, as does the federal prison system, require the prisoner to designate his spiritual advisor as soon as an execution date is set so that the state can conduct a background check.

Judge Jordan dissented, saying in part:

Whether the district court got RLUIPA’s least restrictive means requirement right or wrong, I do not believe that its decision constitutes an abuse of discretion.

11th Circuit: Anti-Abortion Protesters Challenge To Permit Requirements Rejected

In Henderson v. McMurray, (11th Cir., Feb. 9, 2021), the U.S. 11th Circuit Court of Appeals dismissed free speech, free exercise and due process challenges to Huntsville, Alabama's application of its permit requirements to activities of James and Carol Henderson, two anti-abortion protesters. When abortion rights counter-protesters drowned out the sidewalk counseling and prayers of the Hendersons, the Hendersons resorted to using amplification devices. This triggered the need for them to obtain a permit under Huntsville's municipal code. In dismissing the Hendersons' various challenges, the court concluded that they failed to plead facts showing that they did not have ample alternative channels of communication or that the limits on noise in their permit were a pretext for viewpoint discrimination. The court also held that the noise limits in the permit were not unconstitutionally vague and that the free exercise claim does not trigger strict scrutiny.

Imam Sues Alabama Over Exclusion of Clergy From Execution Chamber

Yesterday a Muslim imam filed suit in an Alabama federal district court challenging prison rules that preclude him from being present in the execution chamber with inmates sentenced to death. The complaint (full text) in Maisonet v. Dunn, (SD AL, filed 2/4/2021), alleges that a change in execution policy in 2019 that now excludes all religious advisors from the execution chamber was adopted

for the purpose of excluding non-Christian religious advisors and prohibiting condemned men of non-Christian faiths from requesting their religious advisors to accompany them in the execution chamber.

The suit contends that the execution policy violates the Free Exercise and Establishment Clauses as well as the Alabama Constitution's Religious Freedom Amendment.

Prior to 2019, prison rules required that the prison chaplain-- consistently a mainline Protestant clergyman-- be present in the execution chamber.  That practice was challenged and litigated up to the U.S. Supreme Court, which in 2019 allowed the Alabama execution of a Muslim inmate to proceed without reaching the merits of the challenge to that practice. (See prior posting.) Subsequently in 2019 the Supreme Court ruled against disparate treatment of non-Christian inmates facing execution in a Texas case. (See prior posting.) Courthouse News Service reports on the lawsuit.

11th Circuit Allows Buddhist Center To Move Ahead With RLUIPA and State Law Claims

 In Thai Meditation Association of Alabama, Inc. v. City of Mobile Alabama, (11th Cir., Nov. 16, 2020), the U.S. 11th Circuit Court of Appeals remanded to the district court some of the claims by a Buddhist group that its rights were violated when the city Planning Commission and City Commission refused to approve its proposed meditation center.  The court held that the district court had used the wrong test to determine whether  the refusal imposed a "substantial burden" in violation of RLUIPA and the 1st Amendment. The Court said in part:

it isn’t necessary for a plaintiff to prove—as the district court here seemed to assume—that the government required her to completely surrender her religious beliefs; modified behavior, if the result of government coercion or pressure, can be enough. ...

However the court rejected plaintiffs' religious discrimination claim, saying in part:

It’s not enough .. for the plaintiffs to show that community members opposed their applications on prohibited grounds—they must prove that the city officials who rejected them acted with discriminatory intent. And we cannot attribute the residents’ purported bias to city officials absent at least some proof that the officials “ratified” it.

The court also held that Alabama's Religious Freedom Amendment requires plaintiffs to merely show a "burden", rather than a "substantial burden" on their religious exercise. The Court said in part:

Given the post-RFRA context in which ARFA was adopted, and its pointed rejection of the phrase “substantially burden” in favor of “burden” simpliciter, we conclude that qualifier’s omission was intentional. No matter how tempting it may be—whether to harmonize state and federal law or, as the district court suggested, to “control[] the floodgates of litigation”—we aren’t at liberty to graft the adverb “substantially” onto a provision (or set of provisions) that won’t accommodate it....

New Developments In the Abortion Rights Controversy

The past few days have brought several developments in the battle over abortion rights. In Colorado, an Initiative measure on the ballot that would have banned abortions after 22 weeks of gestation was defeated 59% to 41% (89% of precincts reporting). In Louisiana voters approved by a margin of 62% to 38% an amendment to the state constitution providing "To protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion."

Meanwhile last week, the Alabama Supreme Court in Magers v. Alabama Women's Center Reproductive Alternatives, LLC, (LA Sup. Ct., Oct. 30, 2020), dismissed a wrongful death action brought by the father of an aborted 6-week old fetus against a clinic that provided the mother with a pill to induce a medication abortion. The trial court dismissed the suit, and the state Supreme Court dismissed because appellant did not comply with the procedural requirements for the type of brief that needs to be submitted for an appeal. However Justice Mitchell, joined by 3 other justices wrote concurring opinion that said in part:

I write separately, however, to state my view that Roe v. Wade ... and Planned Parenthood of Southeastern Pennsylvania v. Casey ... are due to be overruled by the United States Supreme Court....

First, the central holding of Roe -- that there is a constitutional right to have an abortion based on a judicially created trimester framework -- has no grounding in the text of the United States Constitution....

Second, the right to have an abortion has no foundation "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

[Thanks to Scott Mange for the lead as to Alabama.]

Alabama's Voter Registration Oath Is Challenged

Yesterday four Alabama residents filed suit challenging language in Alabama's voter registration form. The oath in the form ends with "so help me God." No secular alternative is available.  The complaint (full text) in Cragun v. Merrill, (ND AL, filed 10/01/2020) contends that the absence of a secular alternative violates the Establishment, Free Exercise, Free Speech and Equal Protection Clauses. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

Courts Grapple With State Abortion Bans In COVID-19 Responses

As previously reported, Texas and Ohio have included abortions as non-essential medical procedures which are banned to preserve resources for treatment of COVID-19 patients. Alabama has also imposed a similar ban. Wall Street Journal reports that district court judges in each of those states have blocked the bans. However yesterday in In re Abbott, (5th Cir., March 31, 2020), the U.S. 5th Circuit Court of Appeals in a 2-1 decision temporarily stayed the Texas federal district court's injunction, allowing the ban on abortions to remain, at least for the time being. The state however was directed to file an initial response by 8:00 a.m. today.

Noise Restrictions On Sidewalk Abortion Counselors Upheld

In Henderson v. McMurray, (ND AL, Feb. 4, 2020), an Alabama federal district court upheld a Huntsville, Alabama special events ordinance and the provision in a permit allowing plaintiffs, pro-life sidewalk abortion counselors, to use amplification only if they cannot be heard in adjacent buildings. The court concluded that the challenged restrictions do not violate plaintiffs' rights to free speech or free exercise of religion.

Specified Alabama Religious Schools and Church Can Create Their Own Police Forces

As reported last week by WBRC, Birmingham, Alabama's Briarwood Presbyterian Church has issued a press release expressing appreciation for the Governor's recent signing of HB 309 (full text) which adds Madison Academy  and Briarwood Presbyterian Church and its integrated auxiliary Briarwood Christian School to the list of colleges that can create their own police forces.  Both of the added schools are preK-12 Christian schools. According to MSN News, the Alabama ACLU is concerned that this could give the schools the ability to avoid reporting to outside authorities criminal activity that takes place on their premises. [Thanks to Tom Rutledge for the lead.]

Roy Moore To Run Again For Senate

Roy Moore, former Chief Justice of the Alabama Supreme Court, announced yesterday that he will once again run for the U.S. Senate seat from Alabama. CNN, reporting on Moore's announcement, said in part:

Moore has long been a controversial figure in the state. He was twice elected as Alabama chief justice but was removed both times, for installing a giant statue of the Ten Commandments in the state judicial building and for ordering lower court judges to refuse to marry same-sex couples.

"We have every right to recognize God," Moore said. "That'll be a main factor in my race."

Senate Republicans generally hope that Moore will be defeated in the Republican primary.

Alabama Passes Restrictive Abortion Law; Other States Have Also

The Alabama legislature yesterday gave final passage to House Bill 314 (full text), which criminalizes the performance of abortions at any stage of pregnancy, except in cases of serious health risk to the mother, ectopic pregnancy or lethal anomaly in the unborn child. As reported by CNN, attempts to also include exceptions for rape or incest failed.  The Guardian today has an analysis of the growing number of states that are enacting, or attempting to enact, abortion restrictions that go beyond those permitted under current Supreme Court precedent, saying in part:

Anti-abortion campaigners have successfully enacted a ban on all or most abortions in seven Republican-led states: Alabama, Arkansas, Kentucky, Mississippi, North Dakota, Ohio and Georgia.

Alabama’s law, which must be signed by the Republican governor, is the most severe.

At least 61 bills like this have been introduced across the country, in states including Louisiana, Missouri, South Carolina, Tennessee, Maryland, Minnesota, Texas and West Virginia. Even in states considered safe havens for abortion rights, such as New York and Illinois, anti-abortion lawmakers have introduced bills as a kind of protest.

The wave of restrictions is due primarily to the Trump administration’s judicial picks. Anti-abortion campaigners believe the chances of further restricting abortion through court cases are better today than they were a year ago....

Generally, the anti-abortion elements are made up of social conservatives. The Christian right has fought against abortion rights for decades, but some of its most extreme proposals have only recently started to pick up steam. The Christian right is also one of the Trump administration’s most fervent bases of political support.

Inmate's Suit Seeks Imam In Execution Chamber

In the wake of two widely publicized U.S. Supreme Court actions involving similar issues in Alabama and Texas, suit was filed this week by a Muslim death row inmate in Alabama who wants to have an imam present in the execution chamber when when he is executed. The complaint (full text) in Burton v. Dunn, (MD AL, April 4, 2019), alleges that Charles Burton's rights under RLUIPA, the Alabama Religious Freedom Amendment, the Establishment Clause and the Free Exercise clause are violated by the prison's current policy under which only the prison's mainline Protestant Christian chaplain is present in the execution chamber. Burton objects to that chaplain's presence. Stanford Law School's Legal Clinic issued a press release announcing the filing of the lawsuit. [Thanks to James Sonne for the lead.]

Alabamans Approve 10 Commandments and Right To Life Amendments

Alabama voters yesterday approved two state constitutional amendments. By a margin of 78% to 22%, voters approved Amendment 1, officially described as follows:

First, it provides that a person is free to worship God as he or she chooses, and that a person’s religious beliefs will have no effect on his or her civil or political rights. Second, it makes clear that the Ten Commandments may be displayed on public property so long as the display meets constitutional requirements, such as being displayed along with historical or educational items. Amendment 1 also provides that no public funds may be used to defend this amendment in court.

Voters, by a margin of 59% to 41% approved Amendment 2, officially described as follows:

Amendment 2 provides that it would be the public policy of the state to recognize and support the importance of unborn life and the rights of unborn children, including the right to life; and to protect the rights of unborn children. Additionally, the amendment would make clear that the state constitution does not include a right to abortion or require the funding of an abortion using public funds.

The proposed amendment does not identify any specific actions or activities as unlawful. It expresses a public policy that supports broad protections for the rights of unborn children as long as the protections are lawful.

Ballot Issues To Watch In Tomorrow's Elections

Several ballot measures that may be of interest to Religion Clause readers will be voted on around the country tomorrow:

• Alabama Ten Commandments Amendment, Amendment 1
• Alabama State Abortion Policy Amendment, Amendment 2
• Oregon Ban Public Funds for Abortions Initiative
• West Virginia Amendment 1, the No Right to Abortion in Constitution Measure

Permanent Injunction Issued In Ethics Battle By Alabama Justice

As previously reported, in March an Alabama federal district court issued a preliminary injunction, holding that provisions in the Alabama Canons of Judicial Ethics that were invoked against Alabama Supreme Court Justice Tom Parker are unconstitutional.  At issue was a ethics complaint over comments by Parker about the impact of the U.S. Supreme Court's Obergefell decision on an earlier Alabama Supreme Court order barring probate judges from issuing licenses for same-sex marriages.  Now the parties have agreed on the scope of a permanent injunction, and this week in Parker v. Judicial Inquiry Commission of the State of Alabama, (MD AL, June 11, 2018), the court issued an opinion and the consent injunction, barring the state Judicial Inquiry Commission from enforcing Canons 1, 2A and 3A(6):

to proscribe or punish any public comment by a judge unless the public comment can reasonably be expected to affect the outcome or impair the fairness of a proceeding pending or impending in any court. Public discussion by judges or judicial candidates of an issue of public importance cannot be proscribed or punished ... merely because that issue may happen to be the subject of a pending or impending proceeding in any court.

Liberty Counsel issued a press release on the court's action.

Church Testimony To Liquor Board Did Not Violate Establishment Clause

In Clarke v. Goodson, 2018 U.S. Dist. LEXIS 74419 (MD AL, May 1, 2018), and Alabama federal magistrate judge recommended dismissing an Establishment Clause challenge to Pike County, Alabama's denial to plaintiffs of a license for the sale of beer and wine at their restaurant.  Plaintiffs contended that it was a violation of the Establishment Clause for the Alcoholic Beverage Control Board to allow officials of a nearby church to testify in opposition to granting of the license.

[T]he law is settled that the "protect[ion] of churches and schools from disruption associated with liquor serving establishments" is a valid secular purpose.... Moreover, ... the Defendants' conduct would arguably have violated the Establishment Clause, if the Defendants had refused to allow citizens to speak in opposition to the Plaintiff's application on the basis of those individuals' affiliation with the church.

Alabama Legislature Approves Ballot Issue On Ten Commandments

The Alabama legislature yesterday approved S 181 (full text), submitting a proposed state constitutional amendment to the voters. The operative provisions of the proposed amendment read:

Every person shall be at liberty to worship God according to the dictates of his or her own conscience. No person shall be compelled to attend, or, against his or her consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes, or other rates for the support of any minister of the gospel. Property belonging to the state may be used to display the Ten Commandments, and the right of a public school and public body to display the Ten Commandments on property owned or administrated by a public school or public body in this state is not restrained or abridged. The civil and political rights, privileges, and capacities of no person shall be diminished or enlarged on account of his or her religious belief. No public funds may be expended in defense of the constitutionality of this amendment.

The Ten Commandments shall be displayed in a manner that complies with constitutional requirements, including, but not limited to, being intermingled with historical or educational items, or both, in a larger display within or on property owned or administrated by a public school or public body.

The inclusion of the ban on using public funds to defend the constitutionality of the amendment is apparently a response to criticism from opponents that the amendment will merely invite costly lawsuits. (See AP report on the passage of the bill.)  Also, apparently the amendment is not intended to repeal the somewhat overlapping provisions of the existing Sections 3 , 3.01 (Amendment 622) and 263 of the state constitution. [Thanks to Tom Rutledge for the lead.]