Suit Challenges DC's Refusal To Allow "Black Pre-Born Lives Matter" Mural on Street

Suit was filed this week in D.C. federal district court challenging the constitutionality of D.C.'s refusal to allow protesting groups to paint a mural reading "Black Pre-Born Lives Matter" on the street near a Planned Parenthood Clinic. It also barred the chalking of the same message. The complaint (full text) in Frederick Douglass Foundation, Inc. v. District of Columbia, (D DC, filed 11/18/2020) points out that murals reading "Black Lives Matter" and "Defund the Police" were permitted to be painted along other D.C. streets. Plaintiffs contend that this differential treatment violates their free speech, equal protection and free exercise rights.  ADF issued a press release announcing the filing of the lawsuit.

DC Restrictions On Outdoor Church Services Violate RFRA

 In Capitol Hill Baptist Church v. Bowser, (D DC, Oct. 9, 2020), a D.C. federal district court issued a preliminary injunction allowing plaintiff church to hold outdoor services, with masks and appropriate social distancing, beyond the 100-person maximum set out in the D.C. mayor's COVID-19 restrictions. The court concluded that current restrictions on the church's outdoor services violate RFRA.  The court said in part:

The District proposes that under its current restrictions the Church could “hold multiple services, host a drive-in service, or broadcast the service online or over the radio,” as other faith communities in the District have done.... But the District misses the point. It ignores the Church’s sincerely held (and undisputed) belief about the theological importance of gathering in person as a full congregation. The “substantial burden inquiry asks whether the government has substantially burdened religious exercise . . . not whether [the Church] is able to engage in other forms of religious exercise.”... The District may think that its proposed alternatives are sensible substitutes. And for many churches they may be. But “it is not for [the District] to say that [the Church’s] religious beliefs” about the need to meet together as one corporal body “are mistaken or insubstantial.”... It is for the Church, not the District or this Court, to define for itself the meaning of “not forsaking the assembling of ourselves together.”...

The court made clear that its order applied only to the church that was plaintiff in this case. 

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Church Challenges D.C.'s COVID-19 Orders

The first suit by a church challenging the District of Columbia's COVID-19 Orders was filed last week by an 850-member evangelical congregation.  The D.C. Orders limit the number of persons who can gather for religious services. The complaint (full text) in Capitol Hill Baptist Church v. Bowser, (D DC, filed 9/22/2020), alleges in part:

For nearly 2,000 years, Christians have gathered each Sunday throughout the year in observance of Christ’s resurrection from the dead on the first day of the week, and the physical gathering of the church is central to that celebration. Indeed, the Greek word translated as “church” in our English versions of the Christian scriptures is “ekklesia,” which literally means “assembly.”... 

As with other communities of Christian faith around the country, CHBC believes that a central part of following Christ is worshipping together in the same physical space.

The suit alleges violations of the 1st Amendment, the 5th Amendment and RFRA. Washington Post reports on the lawsuit.

Order To Stay Away From Basilica Did Not Violate RFRA

 In De Bèarn v. United States, (DC Ct. App., Sept. 10, 2020), the District of Columbia's highest local appellate court held that a stay-away order barring appellant from the Basilica of the National Shrine of the Immaculate Conception did not violate his rights under the Religious Freedom Restoration Act. Gaston DeBéarn was arrested on charges of destruction property after he entered the Basilica yelling about the need to restore the traditional mass and ran to the altar knocking over candle sticks. A court issued the stay-away order as a condition of releasing DeBéarn before trial.  DeBéarn twice violated the order and was also charged with two counts of contempt. In rejecting DeBéarn's RFRA defense, the court said in part:

“Not just any imposition on religious exercise creates a substantial burden; a burden must have some degree of severity to be considered substantial.”...

At trial, appellant noted that the Shrine was his “favorite” place to attend mass and that he did not “go to other churches” because they are “just not as beautiful as that one.” He acknowledged, however, that he could go to other churches. “With so many alternative places to practice [his religion],” we are satisfied that the stay-away order imposed on appellant as to a single Catholic church “d[id] not force [appellant] to choose between abandoning [his] faith and facing criminal prosecution.”...

Establishment Clause Challenge To BLM Mural Dismissed For Lack of Standing

 In Penkoski v. Bowser, (D DC, Aug. 21, 2020), the D.C. federal district court dismissed for lack of standing a suit filed by a pastor and two lobbyists challenging the two-block long painting of "Black Lives Matter" on the pavement of 16th Street near the White House. Identifying themselves as non-Black Christians, plaintiffs claim that the painting violates both the Equal Protection Clause and the Establishment Clause. According to the court:

They claim that the Mural violates the Equal Protection Clause and the Establishment Clause because it labels them—non-black Christians—“second class citizens.” ... The “Black Lives Matter cult,” they allege, “is a denominational sect of the religion of Secular Humanism.” ... This is evidenced both by the BLM protestors’ behavior ... and the “scriptures lifted from the Black Lives Matter’s marxist liturgical creed".... The Mural, Plaintiffs claim, signals the District’s preference both for black citizens and for those that adhere to the BLM denomination.

The court found a lack of standing as to plaintiffs'equal protection claim, saying in part:

The Court does not doubt the sincerity of Plaintiffs’ feelings of ostracization nor quibble with their claims about the divisiveness of the Mayor’s actions.... But these feelings alone cannot justify standing.

It similarly found a lack of standing on plaintiffs' Establishment Clause claim, saying in part:

[A]s with their equal protection claim, Plaintiffs assert a psychological, stigmatic injury for their Establishment Clause claim....

[T]he development of the Establishment Clause and standing doctrines over the past fifty years counsels against adopting offended observer standing here and now, when no contrary precedent binds this Court. The Court, thus, declines to find that Penkoski, Sevier, and Christopher have standing just because they have been “expose[d]” to a display that offends them.

Supreme Court Denies Review In Bus Ad Case

The U.S. Supreme Court today denied certiorari in Archdiocese of Washington v. Washington Metropolitan Transit Authority, (Docket No. 18-1455, cert. denied 4/6/2020).  (Order List [scroll to end]).  In the case, the D.C. Circuit Court of Appeals rejected challenges to the WMATA's guidelines which preclude the sale of advertising space on public buses for issue-oriented advertising, including political, religious and advocacy ads.  The ban includes ads "that promote or oppose any religion, religious practice or belief."  The Catholic Archdiocese of Washington wished to purchase space on the exterior of buses for its Christmas season "Find the Perfect Gift" ad. (See prior posting.) The Circuit denied en banc review, over a dissents in an opinion written by Judge Griffith. (See prior posting.)

Justice Kavanaugh was part of the panel that heard the original arguments in the case in the D.C. Circuit, so he recused himself from considering the petition for review.  While the Supreme Court denied review, Justice Gorsuch joined by Justice Thomas filed a statement saying in part:

Because the full Court is unable to hear this case, it makes a poor candidate for our review. But for that complication, however, our intervention and a reversal would be warranted for reasons admirably explained by Judge Griffith in his dissent below and by Judge Hardiman in an opinion for the Third Circuit....

... [T]he government may minimize religious speech incidentally by reasonably limiting a forum like bus advertisement space to subjects where religious views are unlikely or rare. But once the government allows a subject to be discussed, it cannot silence religious views on that topic.... So the government may designate a forum for art or music, but it cannot then forbid discussion of Michelangelo’s David or Handel’s Messiah. And once the government declares Christmas open for commentary, it can hardly turn around and mute religious speech on a subject that so naturally invites it.

DC Circuit Denies En Banc Review In Bus Ad Case

Last Friday, the U.S. Court of Appeals for the D.C. Circuit, by a vote of 7-2, denied an en banc rehearing in Archdiocese of Washington v. Washington Metropolitan Transit Authority, (DC Cir., Dec. 21, 2018). In the case, a 3-judge panel rejected challenges to the WMATA's guidelines which preclude the sale of advertising space on public buses for issue-oriented advertising, including political, religious and advocacy ads. (See prior posting.) Judge Griffith, joined by Judge Kastas, filed an opinion dissenting from the denial of a rehearing, arguing in part"

WMATA allows entities like Walmart to speak on the subjects of the perfect Christmas gift (toys) and how to spend the Christmas season (buying gifts and visiting stores at specified hours). And WMATA permits the Salvation Army to run ads encouraging people to donate to certain charities. The Archdiocese would also like to express its views on the perfect Christmas gift (Christ), how to spend the holiday (caring for the needy and visiting churches for Mass at specified hours), and whether to contribute to charities (yes, and particularly to religious charities). By barring the Archdiocese from doing so, WMATA’s policy discriminates against religious viewpoints,,,,

[Thanks to James Phillips for the lead.] 

D.C. Opens Investigation of Local Clergy Sexual Abuse Charges

The Washington Post reported yesterday that the office of the District of Columbia Attorney General has opened a civil investigation into charges of sexual abuse by Catholic clergy in the Diocese of Washington. Earlier this month, Pope Francis accepted the resignation of the Diocese's Archbishop Cardinal Donald Wuerl after controversy over his handling of abuse claims as head of the Pittsburgh (PA) Diocese. (See prior posting.) According to yesterday's Post report:

D.C. statutes allow the attorney general to subpoena documents and seek penalties against a nonprofit — up to and including dissolving it — if it “has exceeded or abused and is continuing to exceed or abuse the authority conferred upon it by law” or if it “has continued to act contrary to its nonprofit purposes.”

[Attorney General Karl] Racine said that any felony crimes his office discovers in the course of its probe would be forwarded to the U.S. attorney. Racine’s staff could also prosecute any violations of the District’s mandated reporting requirements — which would be misdemeanors — separately from the civil investigation.

DC Circuit Upholds Bus Ad Restrictions On Religious Subject Matter

In Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (DC Cir., July 31, 2018), the D.C. Circuit Court of Appeals, in 44-pages of opinions, rejected challenges to the WMATA's guidelines which preclude the sale of advertising space on public buses for issue-oriented advertising, including political, religious and advocacy ads.  The ban includes ads "that promote or oppose any religion, religious practice or belief."  The Catholic Archdiocese of Washington wished to purchase space on the exterior of buses for its Christmas season "Find the Perfect Gift" ad.  Finding that advertising space on buses is a non-public forum, the court said in part:

the government has wide latitude to restrict subject matters — including those of great First Amendment salience ... — in a nonpublic forum as long as it maintains viewpoint neutrality and acts reasonably....

The Archdiocese’s position would eliminate the government’s prerogative to exclude religion as a subject matter in any non-public forum. It contends Supreme Court precedent prohibits governments from banning religion as a subject matter.... Not only is this position contrary to the Supreme Court’s recognition that governments retain the prerogative to exclude religion as a subject matter, see Rosenberger, 515 U.S. at 831, it would also undermine the forum doctrine because the Archdiocese offers no principled reason for excepting religion from the general proposition that governments may exclude subjects in their non-public forums....

The Archdiocese contends also that ... Guideline 12 is unconstitutional because, like the restrictions challenged in Rosenberger, Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384 (1993), and Good News Club v. Milford Central School, 533 U.S. 98 (2001), it suppresses the Archdiocese’s religious viewpoint on subjects that are otherwise includable in the forum. But far from being an abrogation of the distinction between permissible subject matter rules and impermissible viewpoint discrimination, each of these cases represents an application of the Supreme Court’s viewpoint discrimination analysis, of which Guideline 12 does not run afoul. In each, the Court held that the government had engaged in unconstitutional viewpoint discrimination because the challenged regulation operated to exclude religious viewpoints on otherwise includable topics. An examination of each case demonstrates the contrast between the breadth of subjects encompassed by the forums at issue and WMATA’s in which, unlike the restrictions struck down by the Court, Guideline 12 does not function to exclude religious viewpoints but rather proscribes advertisements on the entire subject matter of religion.

Judge Wilkins, while joining the court's opinion, filed a concurring opinion as well.  Washington Times reports on the decision.

DC Appeals Court Remands In Controversy Over Outreach To GW Jewish Students

In Steiner v. American Friends of Lubavitch (Chabad), (DC Ct. App., Feb. 1, 2018), the District of Columbia Court of Appeals found no absolute bar to enforcement of a non-compete clause in a contract of a Chabad rabbi who had been popular with Jewish students at George Washington University. However the court held that the trial court had enforced the clause too broadly.  At issue are tensions that have extended for many years between the Chabad organization and Rabbi Yehuda Steiner who had been employed to engage in campus outreach for Chabad.  After Steiner was fired, he continued his religious outreach to students. The Chabad organization brought a breach of contract action. The trial court applied the doctrine of equitable reformation to issue an injunction against Steiner, but limited non-competition to two years, to serving currently enrolled students, and to an area within one mile from campus. In this appeal, the court held:

Here, neither the noncompete as originally drafted nor the clause as reformed in the trial court‘s modified preliminary injunction contains terms that would require religious interpretation and therefore preclude a civil court‘s review of this dispute.

However the appellate court held that the trial court's injunction was too broad insofar as it limits activities that Rabbi Steiner and his wife can continue in their personal capacities, rather than through a competing organization. the court added:

More than 100 GW students signed a petition attesting to the special personal relationship they shared with their religious leader, Rabbi Steiner.  In such circumstances, the public interest may bear on the level of scrutiny we will apply to a decision to judicially modify a restrictive covenant.....

In this same vein, the profession of religious minister or rabbi is unique in that the tasks performed in an employment context overlap to a large extent with actions such a professional might undertake in his or her free time, without expectation of payment, as a member of the community engaging in religious practice or dialogue. It is thus imperative that an employer wishing to prohibit certain behavior post-termination narrowly tailor with specific language a restrictive covenant....

The court also remanded for clarification of a non-interference provision, and for a determination of whether the non-compete applies to Rabbi Steiner's wife as well.

Justice Department Supports Archdiocese Against Washington Area Transit Authority

As previously reported, the Court of Appeals for the D.C. Circuit is considering an appeal by the Archdiocese of Washington challenging the refusal of the Washington Area Metropolitan Transit Authority to accept bus ads that promote religion, religious practices or religious beliefs. Yesterday the U.S. Department of Justice filed an amicus brief (full text) supporting the Archdiocese whose Christmas ad was rejected by WMATA. The brief argues that "WMATA’s policy constitutes unconstitutional viewpoint discrimination." National Law Journal reports on DOJ's action.

DC Circuit Refuses Injunction Pending Appeal In DC Religious Bus Ad Case

In Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (DC Cir., Dec. 20, 2017), the Court of Appeals for the D.C. Circuit refused to issue an injunction pending appeal to prevent enforcement of a WMATA advertising policy that rejects bus ads which promote religion, religious practices or religious beliefs.  Earlier this month, the district court upheld WMATA's rejection of an ad from the Archdiocese promoting its "Find the Perfect Gift" Christmas campaign. (See prior posting.)  In denying the motion for an injunction, the Court of Appeals said in part:

Appellant has failed to establish a substantial likelihood of success because, at least at this early pre-discovery procedural stage, Appellant’s argument of discriminatory treatment is grounded in pure hypothesis. Appellant has not come forward with a single example of a retail, commercial, or other non-religious advertisement on a WMATA bus that expresses the view that the holiday season should be celebrated in a secular or non-religious manner.

The court did order an expedited briefing schedule, and urged the parties to limit the use of abbreviations, including acronyms, in their briefs.  Washington Post reports on the decision.

DC Transit Authority's Ban On Religious Ads Upheld

In Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (D DC, Dec. 8, 2017), the DC federal district court upheld advertising Guidelines of the Washington Metropolitan Area Transit Authority which, among other things, bar transit vehicle ads "that promote or oppose any religion, religious practice or belief."  The Catholic Archdiocese challenged the application of this Guideline after WMATA refused to allow the Archdiocese's "Find the Perfect Gift" Christmas campaign ad.  The ad, intended for the exterior of public buses, was designed "to invite the public to consider the spiritual meaning of Christmas..." Denying a preliminary injunction, the court found that plaintiff is unlikely to succeed  on the merits of its free speech, free exercise, equal protection or RFRA arguments.

Rejecting the Archdiocese's free speech claim, the court held that the exterior of a bus in not a "public forum," and WMATA's restriction is neutral and reasonable.  The court said in part:

plaintiff maintains that the Guideline has been discriminatorily and arbitrarily enforced, favoring other religious advertisements over those sponsored by the Catholic Archdiocese.... But the record does not support this contention. None of the advertisements plaintiff highlights to make that point – neither the ads heralding the opening of another CorePower Yoga fitness studio in Clarendon, Virginia (“Muscle + Mantra”), nor the ads soliciting contributions to the Salvation Army’s Red Kettle effort (“Give Hope. Change Lives”) “promote or oppose any religion.”

Rejecting plaintiff's RFRA argument, the court said that no "substantial burden" or religious exercise was shown here:

... RFRA decisions turn on an element of compulsion, and here plaintiff is under no pressure to do anything. The fact that plaintiff has a sincere belief in spreading the gospel is not in dispute, but the existence of that belief, and even the sincere desire to act in accordance with it, is not enough to sustain a claim.

Washington Post reports on the decision.

Refusal To Enter Requested Surname on Birth Certificate Did Not Violate Free Exercise Rights

In Nix El v. Williams, (D DC, March 30, 2016), the D.C. federal district court rejected a claim by the father of a newborn daughter that his religious rights were infringed when D.C. Department of Health officials refused to list his daughter's surname on her birth certificate as "Nix El" rather than as "Nix", the parents' surname. D.C. statutes require the surname to match that of a family member. Plaintiff, who is a member of the Moorish Science Temple, contended that he wished to add "El" to his daughter's name because it is a title of nobility. In the suit, plaintiff had asked for declaratory and injunctive relief, compensatory damages of $136 million plus punitive damages of $1 million per day for each day his daughter did not have a birth certificate.

Defamation Suit Stemming From Ground Zero Mosque Plans Dismissed

Forras v. Rauf, (DC Cir., Feb. 12, 2016), is another installment in the battle that began in 2010 over plans to build the so-called "Ground-Zero Mosque" near the site of the 2001 World Trade Center Attacks.  When the plans were announced, former firefighter Vincent Forras filed suit attempting to stop the project, contending it was a public nuisance and asserting claims for infliction of emotional distress and assault. (See prior posting.) In seeking dismissal of the case, defendant Imam Rauf's attorney submitted an affidavit contending that the lawsuit was motivated by "blind bigotry."  Forras' suit was dismissed, but he and his attorney Larry Klayman then sued Rauf and Bailey in federal district court in the District of Columbia for defamation. In this opinion, the D.C. Circuit held that the defamation suit should be dismissed because there is no personal jurisdiction in D.C. over defendants under D.C.'s long-arm statute.

Catholic and Conservative Christian Groups Urge Congressional Disapproval of Two D.C. Ordinances

Under Title VI of the District of Columbia Home Rule Act, Congress may disapprove laws enacted by the D.C. City Council.  Last week, fifteen Catholic and conservative Christian organizations sent a letter (full text) to members of Congress urging disapproval of two recently enacted D.C. laws-- the Reproductive Health Non-Discrimination Amendment Act of 2014 and Human Rights Amendment Act of 2014 (see prior posting). According to the U.S. Conference of Catholic Bishops press release:

The Reproductive Health Non-Discrimination Amendment Act of 2014 prevents religious institutions, faith-based employers, and pro-life advocacy organizations in the city from making employment decisions consistent with their sincerely held religious beliefs or moral convictions about the sanctity of human life.  

For example, the law requires “organizations to hire or retain individuals whose speech or public conduct contradicts the organizations’ missions,” the letter stated. “The law plainly violates the First Amendment, the federal Religious Freedom Restoration Act of 1993 (RFRA), and possibly other federal laws and clearly contradicts the Supreme Court’s recent, unanimous ruling in Hosanna-Tabor Evangelical Church and School v. EEOC.”  

Another law enacted by the Council of the District of Columbia, the Human Rights Amendment Act of 2014, requires religiously affiliated educational institutions to endorse, sponsor, and provide school resources to persons or groups that oppose the institutions’ religious teachings regarding human sexuality. 

“In doing so, the law violates the First Amendment and RFRA on similar grounds”....

D.C. Repeals Sexual Orientation Discrimination Exemption For Private Religious Schools

On Dec. 2, the District of Columbia City Council passed (vote history) B20-803 (full text) which repeals the religious educational institution exemption to certain provisions of the D.C. Human Rights Act.  The new law repeals D.C. Code Sec.2-1402.41(3) which read:

(3) Notwithstanding any other provision of the laws of the District of Columbia, it shall not be an unlawful discriminatory practice in the District of Columbia for any educational institution that is affiliated with a religious organization or closely associated with the tenets of a religious organization to deny, restrict, abridge, or condition -

(A) The use of any fund, service, facility, or benefit; or

(B) The granting of any endorsement, approval, or recognition, to any person or persons that are organized for, or engaged in, promoting, encouraging, or condoning any homosexual act, lifestyle, orientation, or belief.

Conservative Christian organizations opposed the bill, as reflected by this letter from Liberty Counsel.