Catholic Group Challenges Zoning Refusal To Allow Building Of Chapel

Suit was filed this week in a Michigan federal district court challenging Genoa Township's refusal to allow a Catholic religious organization to develop and construct a 95-seat Chapel and prayer campus on land it acquired from the Diocese of Lansing in 2020. The Township has also demanded that all religious signage already on the property be removed. The complaint (full text) in Catholic Healthcare International, Inc. v. Genoa Charter Township, (ED MI, filed 6/2/2021), alleges that the Township's actions violate plaintiff's rights under RLUIPA, the Michigan Constitution and the First and 14th Amendments of the U.S. Constitution. American Freedom Law Center issued a press release announcing the filing of the lawsuit.

Court Says Wayne State Also Violated State Constitution and 14th Amendment In Denying Recognition To Christian Group

In Intervarsity Christian Fellowship/USA v. Board of Governors of Wayne State University, (ED MI, June 1, 2021), a Michigan federal district court denied defendants' motion for reconsideration of the breadth of an injunction the court issued in April which prohibits Defendants from revoking the recognized student organization status of IVCF. (See prior posting.) Wayne State had claimed that IVCF violated the school's non-discrimination policy by insisting that its leaders agree with IVCF's  “Doctrine and Purpose Statements,” “exemplify Christ-like character, conduct and leadership,” and describe their Christian beliefs. The court's April decision found violations of the 1st Amendment. The current decision concludes that the school also violated the free speech provision of the Michigan Constitution and the equal protection clause of the 14th Amendment.

Lawsuit Claims South Carolina's Blaine Amendment Is Unconstitutional

Suit was filed yesterday in a South Carolina federal district court asking the court to declare that South Carolina's Blaine Amendment (Art. XI, Sec. 4 of the South Carolina Constitution) violates the Equal  Protection and Free Exercise clauses of the U.S. Constitution.  The complaint (full text) in Bishop of Charleston v. Adams, (D SC, filed 4/14/2021) reads in part:

1. In response to the COVID-19 pandemic ravaging our state and nation, the U.S. Congress and South Carolina General Assembly have appropriated substantial sums of public funds to provide relief to local governments, employers, non-profit organizations, schools, and colleges.

2. However, because the South Carolina Constitution contains a provision, a so-called Blaine Amendment, which prohibits public funds from being allocated to private or religious schools, the schools and universities represented by Plaintiffs are legally prohibited from accessing these relief funds.

3. Because the Blaine Amendment was born in bigotry and prejudice based on race and religion, it violates the equal protection and free exercise clauses of the U.S. Constitution, and should no longer bar Plaintiffs’ schools from equal access to these essential relief funds.

The complaint goes on to trace the specific history of the Blaine Amendment in South Carolina.  Plaintiffs in the case are a Catholic diocese that operates 33 schools and an association of private colleges. The Center Square reports on the lawsuit.

Synagogues Lose Suit Over Repealed Zoning Law

In Orthodox Jewish Coalition of Chestnut Ridge v. Village of Chestnut Ridge, New York, (SD NY, March 31, 2021), a New York federal district court dismissed a suit by Orthodox Jewish synagogues contending that the village's former zoning law violated RLUIPA, the free exercise clause and the New York constitution. The court held RLUIPA's safe harbor provision protects municipalities that correct their laws from damage suits under RLUIPA. It also dismissed plaintiffs' equal protection claim because they failed to show that the old zoning law was enacted with discriminatory intent. The court found that claims for prospective relief were moot and that certain other claims were not ripe.

Virginia Public School Guidance On Transgender Students Is Challenged

Suit was filed yesterday in a Virginia state trial court challenging a guidance document titled Model Policies on the Treatment of Transgender Students In Virginia's Public Schools developed by the Virginia Department of Education (DOE). The guidance document calls for safe, supportive and inclusive school environments for transgender students. The lawsuit filed by a parent and two advocacy organizations contends that during the adoption process, the Department of Education failed to respond to a number comments raising constitutional and other legal objections to the proposed guidance document. The complaint (full text) in Family Foundation v. Virginia Department of Education, (VA Cir. Ct., filed 3/30/2021) alleges that the document violates free speech, free exercise, privacy, equal protection, and parental rights. Family Foundation issued a press release announcing the filing of the lawsuit. AP reported on the lawsuit.

California COVID Restrictions On Singing At Worship Services Upheld

In Calvary Chapel of Ukiahv. Newsom, (ED CA, March 10, 2021), a California federal district court refused to issue a preliminary injunction against California's COVID-19 restriction on indoor singing and chanting during worship services. The court rejected plaintiffs' free exercise, free speech, equal protection and Establishment Clause claims. The court said in part:

[T]he State has now issued protocols allowing those who serve as performers during church services, presumably including choir members or soloists, to sing indoors subject to masking and distancing. Under these newest rules, the State argues, “worship services are treated more favorably than the entertainment industry.” ... To the extent one might question whether churches were being treated equivalently to the entertainment industry, that doubt appears to have been eliminated beyond a shadow of a doubt.

8th Circuit Upholds Missouri Immunization Opt-Out Form

In B.W.C. v. Williams, (8th Cir., March 5, 2021), the U.S. 8th Circuit Court of Appeals rejected free speech, free exercise, equal protection and hybrid rights challenges by parents and their children to the form they must file in Missouri to obtain a religious exemption from vaccination requirements. The form, which the parent must sign, contains a paragraph urging parents to immunize their child. The court said in part:

Form 11 states the government’s position, separated from the religious opt-out. Unlike a student required to recite the Pledge or a motorist required to display the state’s motto, there is no confusion here: it is the government’s message to parents considering Form 11....

Form 11 does not require the plaintiffs to engage in conduct against their religious beliefs. Plaintiffs object to the process of producing vaccines or introducing vaccines into their children’s bodies.... [S]ubmission of Form 11 does not increase the number of vaccines produced or force their children to get immunized....

Form 11 does not target religious believers or violate their right to equal protection. The defendants do not treat the plaintiffs differently than any other parent requesting an exemption from immunization: they were all required to submit a DHSS form to their school.

Courthouse News Service reports on the decision.

School's Refusal To Allow Modified Graduation Cap Upheld

In Waln v. Dysart School District, 2021 U.S. Dist. LEXIS 38345 (D AZ, Feb. 28, 2021), an Arizona federal district court rejected free exercise, free speech and equal protection challenges to a school district's refusal to allow a graduating senior to wear a decorated cap at graduation ceremonies.  The student was a member of the Sioux tribe and for cultural and religious reasons wanted to wear a beaded cap adorned with an eagle feather. The school district allowed Native American students to wear in their hair, or as a necklace or jewelry, but did not permit altered commencement caps. The court said in part:

[A]dopting an appearance of neutrality with regard to religion or cultural viewpoints, and the avoidance of controversy, have been deemed reasonable bases for subject-matter limitations, such as limitations on religious expression, on a student's free speech rights.... In this matter, all expressive speech, including but not limited to religious speech, was prohibited by the dress code blanketly prohibiting the augmentation of graduation caps, and the restriction was reasonable and related to the purpose of the forum. And, most notably, the prohibition of any adornment of any kind on a student's graduation cap during the commencement ceremonies was content-neutral.

Required Measles Inoculation Upheld

In W.D. v. Rockland County, (SD NY, Feb. 22, 2021), a New York federal district court dismissed free exercise, equal protection and due process challenges to an order of the Rockland County Department of Health requiring children between 6 months and 18 years of age to be vaccinated against measles in order to enter any place of public assembly, including for educational or religious purposes. The order did not apply to children with medical exemptions, but did apply to those with religious exemptions. Rejecting plaintiffs' free exercise challenge, the court said in part:

Here, the Emergency Declaration is subject to rational basis review because it is both facially neutral and generally applicable.... Under rational basis review, Defendants have demonstrated that the Declaration served the legitimate government purpose of protecting the County’s community from the measles outbreak.... Moreover, even if strict scrutiny applied, the Emergency Declaration satisfies that standard as well. 

Suit Challenges Disqualification of Ministers Ordained Online As Marriage Officiants

Suit was filed yesterday in a Pennsylvania federal district court seeking to declare unconstitutional the position taken by the Bucks County, Pennsylvania clerk of courts that ministers who were ordained online may not solemnize marriages under Pennsylvania law. Apparently the county takes the position that those ordained online are not clergy of a "regularly established church or congregation", as required by 23 Pa. Cons. Stat. Ann. § 1503. The complaint (full text) in Universal Life Church Monastery Storehouse v. Bobrin, (ED PA, filed 2/16/2021), alleges that this interpretation violates the Free Exercise, Establishment and Equal Protection Clauses, saying in part:

... Defendant has used the powers of her office to discourage ULC Monastery ministers from exercising rights afforded to ministers of other religions. Defendant’s apparent policy of discrimination unconstitutionally prefers certain religions or religious denominations over others and burdens ULC Monastery’s and its ministers’ free exercise of religion. To the extent Defendant is correct that 23 Pa. Cons. Stat. Ann. § 1503 bars ULC Monastery ministers from solemnizing marriages while granting that benefit to ministers of other religious denominations, the statute is unconstitutional.

Universal Life Church issued a press release announcing the filing of the lawsuit.

Jewish Organization Fails To Prove Violations In Denial of Its Use of Free After-School Space

In Chabad Chayil, Inc. v. School Board of Miami-Dade County Florida, (SD FL, Jan. 22, 2021), a Florida federal district court dismissed claims by a Jewish non-profit organization that the Miami-Dade County School Board and the County's Office of Inspector General (OIG) violated its 1st and 14th Amendment rights when it took away its rent free use of school facilities for after-school programs. The OIG, after investigating an anonymous complaint, claimed that Chabad Chayil violated various regulations in applying for rent-free use and in operating its program. The court concluded that Chabad Chayil had failed to show that its claims met the requirements for liability under 42 USC §1983. It "failed to allege facts showing that any School Board official or staff member was a final policymaker with respect to the decisions or actions that Chabad Chayil maintains were unconstitutional...." It failed to show a OIG custom or policy that would make it liable for free exercise violations. Chabad Chayil also failed to prove equal protection or due process violations.

Expanded Contraceptive Mandate Exemptions Again Upheld

Last July in Little Sisters of the Poor v. Pennsylvania, the U.S. Supreme Court rejected two kinds of challenges to the Trump Administration's expanded conscience exemptions from the Affordable Care Act's contraceptive coverage mandate. the Court held that the relevant federal departments had authority to promulgate the rules, and that the procedural process used to adopt the rules was valid. The case was remanded for consideration of any other issues. (See prior posting.) Now in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (D MA, Jan. 15, 2021), a Massachusetts federal district court on remand held that the expanded exemptions are not arbitrary and capricious, and do not violate either the Establishment Clause or the Equal Protection guarantee of the 5th Amendment. In rejecting the Establishment Clause challenge, the court said in part:

Permitting entities to practice their beliefs as they would in the absence of the relevant government-imposed regulations does not, in this instance, rise to an unconstitutional violation of the Establishment Clause.

4th Circuit Remands Muslim Inmate's RLUIPA and Equal Protection Claims

In Gentry v. Robinson, (4th Cir., Dec. 7, 2020), the U.S. 4th Circuit Court of Appeals affirmed in part and vacated in part a Virginia district court's dismissal of a suit by a Muslim inmate who, for religious reasons, seeks to maintain a full beard. The court remanded plaintiff's RLUIPA claim instructing the district court to consider, in light of the prison system's change in policy to now allow beards, whether the claim is moot. The court also remanded for further consideration plaintiff's equal protection claim. The court however agreed that plaintiff's claim for damages for violating his 1st Amendment free exercise rights should be dismissed, saying in part:

Because no law or precedent at the time of the challenged conduct “clearly established” that VDOC’s grooming policy violated the constitutional rights of religious objectors like Gentry, the defendants are entitled to qualified immunity on this claim.

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.

Another Religious Challenge To California's COVID-19 Orders

 In a suit filed late last month, a Catholic priest has challenged California Governor Gavin Newsom's COVID-19 emergency orders.  the 77-page complaint (full text) in Burfitt v. Newsom, (CA Super. Ct., filed 9/29/2020) charges that the Governor's orders violate various provisions of the California state constitution, including free exercise, equal protection, liberty of speech and equal protection.  Thomas More Society issued a press release announcing the filing of the lawsuit.

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.

Denial of Church's Sewer Extension Application Did Not Violate RLUIPA or Constitution

 In Canaan Christian Church v. Montgomery County, Maryland, (D MD, Sept. 30, 2020), a Maryland federal district court, in a 54-page opinion, rejected challenges to the county's refusal to extend public sewer lines to a site on which plaintiffs wished to build a 2000-seat church. The court rejected plaintiff's "substantial burden" claim under RLUIPA, finding that the church had no reasonable expectation that the sewer extension would be approved.  The court also rejected RLUIPA "unreasonable limits" and "unequal terms" claims. It went on to reject equal protection and free exercise challenges.

Preliminary Injunction Denied In Suit Targeting Colorado's COVID-19 Limits On Size of Religious Gatherings

On Monday, a challenge to Colorado's COVID-19 orders was filed.  In a 98-page complaint, a religious conference center and affiliated Bible college claim that Colorado's limitation on the number of persons who can attend in-person religious services violates its 1st and 14th Amendment rights. The complaint (full text) in Andrew Wommack Ministries, Inc. v. Polis, (D CO, filed 9/28/2020), alleges unconstitutional discrimination between religious gatherings and non-religious gatherings, as well as between the Ministries' religious and nonreligious gatherings in the same facilities, giving examples such as:

178. Under the Governor’s Orders, AWMI’s volunteers may provide nonreligious counseling, social services, and other necessities of life for women constituents of Life Network’s Colorado Springs Pregnancy Center and Choices Pregnancy Center may be administered in unlimited numbers, provided only that social distancing is satisfied.

179. But, if volunteers associated with AWMI and Charis Bible College students transition from providing these women with counseling, social services, food, clothing, and other necessities of life to providing them spiritual counseling, spiritual food in the form of communion, or otherwise transitions to a religious worship service with the same women in the same room, the Governor’s Orders would automatically subject them to criminal penalties for hosting an impermissible worship service if there is more than 175 women in the room.

The complaint says that speedy relief is required:

4. The Governor’s Orders interfere with and place a cloud of potential criminal and civil legal action over AWMI’s upcoming Pastor’s Conference scheduled to begin at 7:00 PM on October 5, 2020. In addition to outside pastors and ministers who are invited to the conference, attendance at the conference is a required part of the education program for all 652 students at Charis Bible College.

Liberty Counsel issued a press release announcing the filing of the lawsuit.

On Tuesday, in a 7-page order (full text), a Colorado federal district judge denied a preliminary injunction, pointing out:

United States District Judge Raymond Moore recently rejected Plaintiff’s arguments in High Plains Harvest Church v. Polis.... Additionally, the Seventh Circuit recently rejected a church’s argument that similar public health laws unconstitutionally favored secular activity

Plaintiff immediately filed a Notice of Appeal.

11th Circuit Invalidates School's Rule On Transgender Bathroom Assignments

 In Adams v. School Board of St. Johns County, Florida, (11th Cir., Aug. 7, 2020), the U.S. 11th Circuit Court of Appeals by a 2-1 vote held that a Florida high school's policy that prevented a transgender male from using the boy's bathroom violates the Equal Protection Clause as well as Title IX. The court said in part:

[W]e assume the government may promote its interest in protecting privacy by maintaining separate bathrooms for boys and girls or men and women. Mr. Adams, for his part, does not question the ubiquitous societal practice of separate bathrooms for men and women. Instead, Mr. Adams argues the School Board’s bathroom policy singles him out for differential treatment on the basis of his gender nonconformity and without furthering student privacy whatsoever. The record before us has persuaded us to his view.

The majority noted that the school relies on the student's sex designation on school enrollment forms, and not on their birth certificates. The majority went on:

 A public school may not punish its students for gender nonconformity. Neither may a public school harm transgender students by establishing arbitrary, separate rules for their restroom use. The evidence at trial confirms that Mr. Adams suffered both these indignities.

Chief Judge Pryor dissented, saying in part:

By failing to address head-on the lawfulness of sex-separated bathrooms in schools, the majority recasts the school policy as classifying students on the basis of transgender status. And based on this recasting, it reaches the remarkable conclusion that schoolchildren have no sex-specific privacy interests when using the bathroom. The majority opinion purports to allow only plaintiff Drew Adams, a female who identifies as a male, to use the boys’ bathroom, but the logic of this decision would require all schoolchildren to use sex-neutral bathrooms.

Lambda Legal issued a press release announcing the decision.

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.