2nd Circuit Hears Oral Arguments from Amish Seeking Vaccination Exemptions

The U.S. 2nd Circuit Court of Appeals yesterday heard oral arguments (audio of full oral arguments) in Miller v. McDonald. In the case, a New York federal district court upheld New York's removal of religious exemptions from its mandatory requirement for vaccination of school children. It rejected Free Exercise challenges by Amish individuals and schools, finding, in part that the law was both neutral and generally applicable, and thus did not trigger heightened scrutiny. (See prior posting.) Courthouse News Service reports on the oral arguments.

Church Autonomy Doctrine Does Not Shield Criminal Conduct

 In Hochstetler v. State of Indiana, (IN App., July 27, 2023), an Indiana state appellate court held that criminal conduct is not shielded by the church autonomy doctrine. In the case, three Old Order Amish bishops were convicted of misdemeanor intimidation for threatening to place an Amish wife under a bann if she did not remove herself from a protective order she had obtained to protect her and her children from her husband.

County Did Not Show Compelling Interest in Requiring Amish Plaintiffs to Use Septic Tanks

In Must v. County of Fillmore, (MN App., July 10, 2023), a Minnesota state appellate court in a suit brought under RLUIPA held that the county had not shown that it has a compelling interest in requiring appellants-- 3 members of the Amish community-- to use septic tanks in violation of their religious beliefs. The court said in part:

[T]he district court relied on speculation in making key findings about the harmful content of Amish gray water, the amount of water the Amish use, the number of objecting households, and the amount of Amish gray-water discharge. The district court’s reliance on speculation is precisely what the Supreme Court forbids in Fulton [v. City of Philadelphia]. Thus, we conclude that the record evidence is insufficient to support the district court’s ruling that the septic-tank requirement furthers a compelling state interest specific to these appellants.

In 2021, the U.S. Supreme Court had remanded the case for consideration in light of the Fulton decision. (See prior posting.) Courthouse News Service reports on yesterday's Minnesota court decision.

References To Defendant's Amish Community In Sentencing Was Not Improper

In State of Wisconsin v. Whitaker, (WI Sup. Ct., July 5, 2022), the Wisconsin Supreme Court rejected a defendant's claim that his religious liberty and associational rights were violated when the judge sentencing him made reference to his Amish community. According to the court:

As a teenager, Westley Whitaker preyed on his three younger sisters, repeatedly sexually assaulting them while they all were living in an Amish community in Vernon County. Whitaker's parents and elders in the community became aware of the assaults, but failed to protect the victims by either stopping Whitaker from continuing his sexual abuse or alerting secular authorities. A decade later, Whitaker confessed, was charged with six counts of sexual assault, and pled no contest to one of the charges. The circuit court sentenced Whitaker to two years of initial confinement and two years of extended supervision.....

In sentencing Whitaker, the judge said in part:

I happen to live in the midst of an Amish community. They're my neighbors. And sexual assault of sisters is not something that is accepted. I understand it often happens and that it is dealt with in the community. And that's not sufficient. That's not sufficient when it is not a one-time thing and not when the women, the daughters, the wives in the Amish community are not empowered to come forward.... I'm hoping that this sentence deters, as I said, the community.

In upholding the sentence, the Wisconsin Supreme Court said in part: 

[W]e conclude that the circuit court's challenged statements bore a reasonable nexus to the relevant and proper sentencing factors of general deterrence and protection of the public. Nothing in the transcript suggests the circuit court increased Whitaker's sentence solely because of his religious beliefs or his association with the Amish community.... Therefore, we will not disturb the circuit court's wide sentencing discretion. 

Supreme Court GVR's Amish Families' Challenge To Septic Tank Requirements

On Friday, in Mast v. Fillmore County, Minnesota, (Sup. Ct., July 2, 2021), the U.S. Supreme Court granted certiorari, summarily vacated the judgment of the Minnesota Court of Appeals, and remanded for consideration in light of the Court's recent decision in Fulton v. Philadelphia, the case of Amish families who object to state sewage system regulations. In the case, the Minnesota appellate court rejected claims by Swartzentruber Amish community members that laws requiring them to install septic systems to dispose of their waste water violate their rights under the Religious Land Use and Institutionalized Persons Act. (See prior posting.) 

Two Justices filed opinions concurring in the Court's action. Justice Alito in a brief opinion said that the lower court "plainly misinterpreted and misapplied" RLUIPA. Justice Gorsuch, in a longer concurring opinion, said in part:

Perhaps most notably, the County and courts below erred by treating the County’s general interest in sanitation regulations as “compelling” without reference to the specific application of those rules to this community. As Fulton explains, strict scrutiny demands “a more precise analysis.”

Minnesota Amish Must Install Septic Tanks

In Mast v. County of Fillmore, (MN App., June 8, 2020), the Minnesota state Court of Appeals rejected claims by four members of the Amish community that laws requiring them to install septic systems to dispose of their waste water violate their freedom of conscience under the Minnesota Constitution and their rights under RLUIPA. The Court of Appeals said in part:

the district court appropriately concluded that respondents met their burden of demonstrating that appellants’ mulch-basin system does not provide a less-restrictive means of accomplishing the government’s compelling interests of protecting public health and the environment.

Rochester Post Bulletin reports on the decision.

New York Trial Court Upholds Vaccination Requirement

The Rochester Democrat & Chronicle reports that a New York state trial judge in Seneca County has rejected a challenge by an Amish family to New York's requirements that students be vaccinated in order to attend public or private school. The suit claimed that the immunization requirement violates the protection of religious freedom set out in the state constitution. The court wrote in part:

the free exercise clause of the New York Constitution would yield to a valid exercise of the state’s police powers.

IRS Urged To Accommodate Amish On Child Tax Credit Claims

As required by the Internal Revenue Code, last week the National Taxpayer Advocate released her FY2020 Objectives Report to Congress.  One of the recommendations of the Report is that the IRS reconsider its position on the application of the Religious Freedom Restoration Act to the requirement that taxpayers include the Social Security Number for each child for which they claim a Child Tax Credit.  The requirement disadvantages members of the Amish community who often refuse, on religious grounds, to obtain Social Security numbers.

Feds Settle Suit With Old Order Amish Woman Over Photo In Residency Application

According to the Indy Star, government agencies have settled a lawsuit brought by an Old Order Amish couple.  Under the settlement, the wife will be able to become a permanent U.S. resident without submitting photos of herself in the application for residency. She will also be able to cross the border without photographic identification.

Amish Couple Sue Seeking Exemption From Photo Requirement To Get Permanent U.S. Residency

AP reports that an Old Order Amish couple filed suit yesterday in an Indiana federal district court challenging the federal government's refusal to grant permanent residency to the wife--a Canadian-- unless the husband and wife furnish photos of themselves.  The couple has refused because of their religious belief that photos are graven images prohibited by the Second Commandment. The couple wed in 2014 after the husband's first wife died. They live with their 13 children in an Amish farming community in southern Indiana. They claim that the government's refusal to accommodate their religious beliefs violate their 1st and 5th Amendment rights. [Thanks to Tom Rutledge for the lead.]

Amish Get Remand For More Consideration of Religious Freedom Defenses In Permit Case

In Sugar Grove Township v. Byler, (PA Commnwlth. Ct., July 20, 2018), a 7-judge panel of the Pennsylvania Commonwealth Court remanded to the trial court a complaint against a member of the Old Order Amish who, it was contended, failed to obtain required permits under the Township's Privy Ordinance, and violated the Sewage Facilities Act and the Uniform Construction Code.  The trial court concluded that community safety concerns override religious objections. The appeals court said:

The trial court substantiates this conclusion by vaguely referencing testimony of an environmental hazard in the nature of high levels of E. coli bacteria being found in the area, without any explanation of how Appellant’s purported violations contributed to or exacerbated this hazard. Moreover, the trial court ignores additional protections provided by the Religious Freedom Protection Act....

The matter is remanded to the trial court to issue a new opinion considering the issue of the religious freedom protections of the First Amendment to the United States Constitution and Article I, section 3 of the Pennsylvania Constitution as well as the Religious Freedom Protection Act.

AP reports on the decision.

Amish Couple Required To Connect Property To Sewer System With Electric Pump

In Yoder v. Sugar Grove Area Sewer Authority, (Commonwlth. Ct. PA, Jan. 5, 2018), a Pennsylvania state appellate court, in a 2-1 decision, upheld the denial of an injunction sought by an Old Order Amish couple who object to the requirement that they connect to the local sewer system using an electric pump.  The dispute has wound its way through the courts for over five years.  (See prior related posting.)  The majority said in part:

Owners did not establish the injunction would not harm the public, or that the harm in denying the injunction outweighed the harm in granting it. We defer to the trial court’s findings as to weighing the harms and the adverse effect of an injunction on the public health. After several years of litigation on multiple fronts, we recognize a strong interest in accomplishing the mandatory connection without further delay. Because there are apparently reasonable grounds for the trial court’s denial of preliminary injunctive relief, we affirm.

Judge McCullough dissented, relying on the state's Religious Freedom Protection Act. She argued that the trial court wrongly placed the burden on the property owners, rather than the sewer authority, to show the least restrictive means of furthering the state's interest.  She went on:

... [T]his case [should be] remanded to the trial court with the instruction to place the burden on the Authority to demonstrate the least intrusive means of non-electric connection to its sewer system. It may be that there are none and, if that is the case, then the trial court should re-open the issue of compelling Owners, against their sincerely held religious beliefs, to connect to the Authority’s sewer system. The Act requires the interest of the agency/authority to be “compelling” before it imposes a substantial burden on religious freedom. I question whether mandatory electric connection is such a compelling interest so as to countenance this infringement upon Owners’ religious freedom.

Amish Drop Suit Against City Over Animal Waste Requirements

Bowling Green (KY) Daily News reported yesterday that two members of the Swartzentruber Amish community who had sued Auburn, Kentucky officials over an animal waste ordinance requiring horses to wear animal waste catching devices have now voluntarily dismissed their lawsuit. The sect's elders had ruled that it violates religious principles to comply with the requirement. (See prior posting.) Even though efforts to reach a compromise in the suit failed, plaintiffs dismissed their suit because of their discomfort with the publicity they were receiving.

Amish Sue Over City Requirement For Equine Diapers

Two members of the Old Order Swartzentruber Amish sect filed suit last week in a Kentucky state court challenging a 2014 amendment to Auburn, Kentucky's animal waste ordinance requiring horses and other large animals to wear animal catching devices.  As reported by WBKO and Bowling Green Daily News, the ordinance targets the Amish, requiring their horses to wear equine diapers.  The sect's elders decided that it violates religious principles to comply with the requirement. A number of Amish have already been prosecuted under the ordinance. (See prior posting). The lawsuit contends that the ordinance violates state and federal constitutional provisions as well as the Kentucky Religious Freedom Restoration Act.

Amish Say They Are Targets of Law Requiring Horses To Wear Collection Bags

The Bowling Green Kentucky Daily News reported last week that Amish defendants are challenging an Auburn, Kentucky ordinance (Sec. 90.088(B)) that requires horses and other large animals on city streets to wear collection bags to catch their excrement.  Auburn officials say the law is needed to keep city streets clean and prevent the spread of disease, but the Amish say the bags will frighten their horses.  Defendants in some of the 30 pending cases are arguing that the law unconstitutionally targets a particular group of Amish residents. [Thanks to Scott Mange for the lead.]

Amish Man Wins Exemption From State Building Code

A Michigan state trial court judge has held that a member of the Old Order Amish is entitled to an exemption from the Michigan Residential Building Code.  According to the Sault St. Marie News, in a June 6 opinion visiting Judge Harold Johnson sitting in the 50th District Court held that denial of the exemption would violate both the Fair Housing Act and the Religious Land Use and Institutionalized Persons Act. Amish defendant William Miller objected on religious grounds to requirements for electric and plumbing systems, indoor bathrooms, modernized kitchens and electronic devices such as smoke alarms and carbon monoxide detectors.

Sewer Connection To Amish Must Be Made In Least Religiously Intrusive Means

In Yoder v. Sugar Grove Area Sewer Authority, (PA Commw., June 3, 2016), a Pennsylvania appellate court remanded to the trial court a suit by an Old Order Amish family seeking to avoid connecting their property to the public sewer system.  In an earlier decision, the trial court had concluded that the interest in protecting public health through a sewer connection outweighed the Amish family's free exercise rights, but required that the connection to the sewer system be made in accordance with the family's religious convictions. The current suit stems from disagreements on how to carry out this prior order and the trial court's improper belated modification of it. According to the court, the Amish family has religious objections to having electricity power anything associated with the use of their outhouse, and risk excommunication if they use a privy tainted with the use of electric power. In remanding and requiring the trial court to reconsider the method by which a sewer connection would be made to the family's property, the court said in part:

The trial court’s analysis regarding the threat to public safety pertained to the lack of any sewer connection at all, not a connection by nonelectric means, or, failing that, electricity generated by natural, non-electricity provider means. Importantly, the trial court also did not address Owners’ alleged clear right to the least intrusive means of a mandatory connection. 

6th Circuit: Remaining Convictions In Amish Beard-Cutting Case Stand

In United States v. Mullet, (6th Cir., May 4, 2016), the U.S. 6th Circuit Court of Appeals affirmed convictions of 15 members of the Bergholz, Ohio Amish community on charges of conspiracy, concealing evidence and lying to the FBI.  The convictions grew out of hair and beard-cutting attacks by one faction of the Amish community against other Amish. Originally defendants had also been convicted of hate crimes, but those convictions were reversed in an earlier appeal due to faulty jury instructions. The government chose not to retry defendants on those charges. (See prior posting.)  In yesterday's decision, the 6th Circuit held that because the challenges raised to the remaining convictions were not raised in the first appeal, they cannot be raised now.  The court also rejected various challenges to the sentences imposed by the trial court.  Reuters reports on the decision. [Thanks to Tom Rutledge for the lead.]

Amish Contempt Citation Upheld; Free Exercise Issue Avoided

A Wisconsin state appeals court this week, avoiding the free exercise issue that appellants attempted to raise, upheld the contempt judgment against members of an Old Order Amish family who failed to obtain building and sanitary permits for their residence.  In In re the Contempt in: Eau Claire County v. Borntreger, (WI App., Jan. 5, 2016), the court held that the state constitutional issue that the Borntregers want to raise was not the subject of the contempt decision under appeal, but of the earlier grant of summary judgment to the county which the Borntregers failed to appeal. The court explained appellants' contentions:

The Borntregers argued their decision not to pursue building and sanitary permits was protected by article I, section 18 of the Wisconsin Constitution. The Borntregers subsequently filed a motion to dismiss on this ground, asserting the “county ordinance and the state statutes [the County] relies upon violate the defendants’ freedom of worship and liberty of conscience.” The Borntregers argued they would not sign any application, including those for building or sanitary permits, “that states they will adhere to building codes or adhere to all applicable codes, laws, statutes and ordinances.” The Borntregers reasoned that signing such a form would constitute a false statement because they had no intent to comply, and the making of false statements is prohibited by their religion.

However the trial court rejected their claim, concluding that the Borntregars' beliefs were not burdened by the application process.  The applications merely contained an acknowledgement that the proposed construction is "subject to" applicable codes. The court said that signing this merely confirms the applicant's awareness of the rules, and is not a promise to comply.

Meanwhile the Eau Claire Leader-Telegram yesterday reported that the Borntregars, as well as 20 other Old Order Amish families, have now obtained building permits after the Wisconsin legislature changed the applicable law. The state now allows Amish not to install smoke and carbon monoxide detectors, and to have simple plumbing.  However they still need permits for items like foundations, structure and entrances, and the Amish are willing to obtain these.

Amish Man Sues Challenging Photo ID Requirement To Buy Firearms

Under 18 USC 922(t)(1)(c) (part of the Brady Bill), in order to purchase a firearm an individual must present the seller with a valid identification document that includes the purchaser's photo. According to Penn Live, last Friday an Amish man filed suit in a Pennsylvania federal district court challenging the application of the photo requirement to those who have a religious objection to being photographed. Plaintiff Andrew Hertzler contends that his rights under the Second Amendment and the Religious Freedom Restoration Act were violated when the Bureau of Alcohol, Tobacco and Firearms refused to accommodate his Amish religious beliefs by accepting his state-issued non-photo ID along with other documentation.