Supreme Court Grants Review In Case Of Football Coach's Praying At 50-Yard Line

Yesterday the U.S. Supreme Court granted certiorari in Kennedy v. Bremerton School District, (Docket No. 21-418, cert. granted, 1/14/2022). (Order List.)  In the widely followed case, the U.S. 9th Circuit Court of Appeals upheld a high school's actions against a football coach who insisted on prominently praying at the 50-yard line immediately after football games. The coach was placed on paid administrative leave and given negative performance reviews. He did not reapply to coach the following year. A divided 9th Circuit denied en banc review. (See prior posting.) SCOTUS blog reports on the Supreme Court's grant of review. [Corrected. An earlier version of this post inaccurately stated that the coach was "fired".]

7th Circuit Now Says Wisconsin Wrongly Denied School Bus Aid To Catholic School Students

In St. Augustine School v. Underly, (7th Cir., Dec. 20, 2021), the U.S. 7th Circuit Court of Appeals sent back to the district court a suit challenging Wisconsin's refusal to provide bus transportation to students at St. Augustine School. The decision was based on a Wisconsin statute that requires school districts to bus private school students, but limits the obligation to only one private school affiliated with the same religious denomination or sponsoring group in each attendance district.  Another Catholic school in the same district was already receiving bussing aid.  In 2018, the 7th Circuit rejected 1st Amendment challenges to the law and upheld the state's decision. (See prior posting.)  

Plaintiffs sought review in the U.S. Supreme Court. In 2020, the Supreme Court granted certiorari, summarily vacated the judgment below and remanded the case to the 7th Circuit in light of its decision in Espinoza v. Montana Department of Revenue. At that point, the 7th Circuit decided to certify to the Wisconsin Supreme Court the state law question of how to determine if two schools are affiliated with the same denomination.  The Wisconsin Supreme Court responded to the certified question in July of this year. (See prior posting.) Applying that guidance, the 7th Circuit this week held:

We conclude that the Superintendent’s decision in the case before us was not justified by neutral and secular considerations, but instead necessarily and exclusively rested on a doctrinal determination that both St. Augustine and St. Gabriel’s were part of a single sponsoring group—the Roman Catholic church—because their religious beliefs, practices, or teachings were similar enough....

Mom Loses Attempt To Display Menorah At PTA Tree Lighting Ceremony

In Lyons v. Carmel Unified School District, (ND CA, Dec. 10, 2021), a California federal district court denied a temporary restraining order sought to allow the mother of Jewish children in a public school to display a 6-foot inflatable menorah at the PTA's tree lighting ceremony. The school was only willing to permit plaintiff to bring a small menorah to hang as a tree decoration. Rejecting plaintiff's Establishment Clause claim, the court said in part:

Plaintiffs contend that the event advances Christian religions over other religious ... by allowing display of Christian holiday symbols – the tree and ornaments – but banning display of non-Christian holiday symbols such as a menorah....  

Defendants argue that they have not referred to the tree lighting event as involving a “Christmas” tree. Even assuming that the event is viewed as involving the decoration and display of a Christmas tree, however, that would not implicate the Establishment Clause. The Supreme Court has held that “[t]he Christmas tree, unlike the menorah, is not itself a religious symbol.” Cty. of Allegheny v. Am. C.L. Union Greater Pittsburgh Chapter, 492 U.S. 573, 616 (1989)....

The court also rejected plaintiff's free speech claim because the school offered plaintiff the opportunity to reserve School grounds for her own event where she could display the menorah.

School District Sued For Favoring Christian Cultural and Speech Activities

Suit was filed this week in a California federal district court alleging that a California school district has given preference to Christian cultural and speech activities over those of other religions, including Judaism. The complaint (full text) in Lyons v. Carmel Unified School District, (ND CA, filed 12/7/2021), particularly focuses on the refusal by Carmel River School to allow the display of an inflatable menorah at a widely-promoted after-school holiday celebration which will include the decoration and lighting of a Christmas tree and Christmas-themed holiday songs. The complaint alleges that the school has violated the Establishment and Free Exercise Clauses as well as free speech and equal protection provisions. Courthouse News Service reports on the lawsuit.

Cert. Filed In Suit By Parolee Against Christian Homeless Shelter Director

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Carmack v. Janny, (cert. filed 12/3/2021). In the case, the U.S. 10th Circuit Court of Appeals held that a parolee, who is an atheist, should be able to move ahead with his Free Exercise and Establishment Clause claims against his parole officer and the director of a Christian homeless shelter. To stay out of jail, plaintiff was required to stay at the shelter and participate in its religious programming. (See prior posting.) The petition for review frames the question presented as:

Whether the employee of a private, religious nonprofit may be held liable, as a state actor, for making pro bono housing and social services at the nonprofit’s facility contingent on participation in religious programming.

ADF issued a press release discussing the case.

Magistrate Says Texas Pension Participant Lacks Standing To Challenge Israel Boycott Law

In Abdullah v. Paxton, (WD TX, Nov. 8, 2021), a Texas federal magistrate judge recommended dismissing on standing and sovereign immunity grounds a suit by a participant in the Texas Employee Retirement System (ERS) challenging a Texas law that requires ERS to divest fund assets from companies that boycott Israel if divestment can be carried out without harming the value of fund. Plaintiff claims that the divestment requirement violates his free speech, Establishment Clause and due process rights. He also asserts a dormant commerce clause claim. The court said in part:

[A] Declaratory Judgment that Section 808 is unconstitutional and enjoinment of its use would have no effect on Abdullah’s financial interests or his ultimate annuity payments. Abdullah has failed to allege a harm to him that would be redressed by a finding that Section 808 violated his rights. He therefore does not have standing to bring this claim.

Limited Religious Exemptions From Vaccine Mandate Challenged

Suit was filed this week in a Colorado federal district court challenging provisions limiting religious exemptions from the University of Colorado Medical School's vaccine mandate.  The school offers a religious exemption only to those whose objections are based on a religious belief whose teachings are opposed to all immunizations. The complaint (full text) in Jane Doe, M.D. v. University of Colorado,(D CO, filed 9/29/2021), says in part:

[The policy] imposes two necessary conditions to ... any religious accommodation, namely:

a. ... [A] sincere religious belief that opposes acceptance of “all immunizations” and vaccines; and

b. That the person requesting a religious accommodation be a member of an organized religion whose tenets include a hierarchically promulgated, authoritative position on the moral liceity of “all immunizations” and vaccines....

Both conditions are clearly forbidden by the Establishment, Free Exercise, and Equal Protection clauses of the United States constitution and the Religious Freedom provisions of the Colorado constitution.... [They] privileg[e] hierarchically prescribed religious belief over autonomously prescribed (yet sincerely held) religious belief.

Thomas More Society issued a press release announcing the filing of the lawsuit.

3rd Circuit Hears Arguments On School's Presentation of Material On Islam

On Sept. 23, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Hilsenrath v. School District of the Chathams (audio of full oral arguments). In the case, a New Jersey federal district court held that the Chathams' 7th grade World Cultures and Geography course presentation of material about Islam did not violate the Establishment Clause. (See prior posting.) Courthouse News Service reports in detail on the oral arguments, saying that the judges "posed tough questions to both sides." [Thanks to Scott Mange for the lead.]

Suit Challenges California's Ethnic Studies Model Curriculum

Suit was filed earlier this month in a California state trial court challenging a portion of the state's Ethnic Studies Model Curriculum.  The complaint (full text) in Californians for Equal Rights Foundation v. State of California, (Super. Ct., filed 9/3/2021), alleges that the chair of the committee that developed the model curriculum has shown in his writings an animus toward Christianity and Catholicism, and reflects this by including in the model curriculum various prayers based on indigenous religious principles. the complaint continues:

The ... ESMC Lesson Resources section contains a prayer entitled the “In Lak Ech Affirmation” .... The Aztec Prayer invokes the names of five beings worshiped by the Aztecs as gods or demi-gods.... The names of these Aztec gods are collectively invoked 20 times.... They are honored and praised by repeatedly invoking their respective names...

The ancient Aztec religion is not a philosophy, dead mythology, historic curiosity, general outlook on life, or mere symbol. Rather, it is a recognized living faith practiced today both by descendants of the Aztecs and by others..... The fact that it is not large, institutional, or well-known does not change its status as a religion.

The complaint also contends that the curriculum also includes the Ashe Affirmation taken from Yoruba religion of Nigeria. The complaint asserts violations of the establishment clause, free exercise clause and no-aid clause of the California constitution. Religion News Service reports on the lawsuit.

Right-Wing Catholic Group Sues Over Cancellation Of Its Protest Rally

Suit was filed yesterday in a Maryland federal district court by the right-wing Catholic group Church Militant against the city of Baltimore for requiring the cancellation of Church Militant's prayer rally scheduled to be held across from the U.S. Conference of Catholic Bishops Fall General Assembly. The rally was titled "Bishops: Enough Is Enough." The complaint (full text) in St. Michael's Media, Inc. v. City of Baltimore, (D MD, filed 9/13/2021), alleges that the cancellation violates the group's free speech, free exercise, free association and Establishment Clause rights, saying in part:

The purpose of the rally is to engage in protected speech criticizing elements of the power structure of the Catholic Church in a situation where the speech would reach the Church's leadership.

Baltimore Brew reports on the lawsuit.

After 20 Years Of Litigation, Suit On Religion In Child Placement Is Settled And Dismissed

This week, a Kentucky federal district court dismissed the remaining Establishment Clause claim in Pedreira v. Sunrise Children's Services, Inc., (WD KY, Sept. 8, 2021), after both plaintiffs and defendants filed a joint motion for voluntary dismissal with prejudice. The case, which involves a challenge to Kentucky's funding of treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization, has been in litigation for 20 years. On Sept. 9, Americans United announced that in January the parties had entered an 18-page, single-spaced Settlement Agreement (full text) which sets out in detail provisions to prevent children in child care facilities and foster home placements from having unwanted religious activities imposed and assures respect for a child's religious preference.  It also requires respect for a child's sexual orientation and gender identity. Parts of the settlement were required to be incorporated into state regulations. A previous settlement agreement had been held unenforceable. (See prior posting.)

Suit Claims Mask Mandates Violate Free Exercise Rights and Establishment Clause

In a wide-ranging 128-page complaint, a woman who alleges that her medical conditions make it dangerous for her to wear a face mask filed suit in an Indiana federal district court earlier this month against 16 separate defendants challenging the legality of COVID- related mandates or recommendations to wear cloth face masks. Defendants include the CDC, the FDA, Dr. Anthony Fauci, the governor of Indiana, state and local health departments, local officials and several private businesses. Among the numerous challenges, the complaint (full text) in Reinoehl v. Centers for Disease Control and Prevention, (ND IN, filed 8/18/2021), includes these state and federal free exercise and federal Establishment Clause claims:

418. Non-medical masks have been used since ancient times in pagan religious ceremonies to ward of evil spirits and prevent illness....

421. Wearing talismans and other pagan, non-medical masks is against Plaintiff's religious beliefs.

422. Mandating everyone wear non-medical masks to prevent disease when the mask manufacturers cannot make claims they prevent disease transmission is the same as the State establishing a religion in which the Mask Deity prevents its wearers from becoming infected with disease.

423. The State cannot mandate the Plaintiff follows its religion. Plaintiff has the right to freely exercise her religion according to the dictates of her own conscience.

Friendly Atheist blog has more on the lawsuit.

Meanwhile, elsewhere in the country novel religious freedom arguments are being asserted to avoid mask mandates.  According to Fox47 News, a Mason, Michigan mother is seeking a religious exemption from a school mask requirement for her children based on a verse from 2 Corinthians, Chap. 3: "But when one turns to the Lord, the veil is removed..."

Court Sorts Out Standing Issues And Substantive Challenges To Vermont Town Tuition Program

In Valente v. French, (D VT, Aug. 16, 2021), students and their parents sued various school agencies and districts challenging their policy of refusing to pay tuition to religious schools under Vermont's Town Tuition Program. Under that program, school districts that do not operate their own high schools pay tuition for students to attend other schools. However, sectarian schools are excluded unless there are adequate safeguards against the use of the tuition funds for religious worship. The court held that plaintiffs have standing to sue various state agencies, having alleged that they have not taken appropriate steps to prevent school districts from discriminating against religion in the Town Tuition Program. However the court found no standing to sue supervisory unions made up of local school boards which have no responsibility for the tuition payments.

The court went on to hold that plaintiffs have adequately alleged an equal protection claim and (except for one plaintiff) a free exercise claim against the state defendants, but have not adequately alleged an Establishment Clause or substantive due process claim. Eleventh Amendment defenses were also rejected.

In a companion case, A.H. v. French, (D VT, Aug. 16, 2021), students, parents and the Catholic Diocese sue challenging the refusal to allow Rice Memorial High School, a Catholic high school, to participate in the Town Tuition Program. The court held that the parents have standing to sue the state Agency of Education and its secretary, saying that plaintiffs allege these defendants set policy and directed school districts to exclude religious schools and their students. It also rejected 11th Amendment defenses by the head of the Agency. However the court held that the Diocese of Burlington lacks standing to assert the interests of parents who wish to send their children to Rice.

Court Dismisses Challenge To Contraceptive Mandate Exemption for Notre Dame

In Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, (ND IN, Aug. 12, 2021), an Indiana federal district court dismissed a suit challenging rules, as well as a settlement agreement, exempting Notre Dame University from the contraceptive coverage mandate of the Affordable Care Act. The court said in part:

With the Rules having been upheld by the Supreme Court, I can’t really say that the Settlement Agreement itself is causing injury to the Plaintiffs because the same result the Settlement Agreement provides Notre Dame (exempting it from the contraceptive coverage mandate) is equally provided by the Rules (the validity of which were upheld). The challenge to the Settlement Agreement “is not ripe for adjudication [because] it rests upon contingent future events that may not occur” - i.e., the speculative possibility that the exemption might be invalidated at some point in the future.

The court, relying on the Supreme Court's Little Sisters of the Poor decision and a Massachusetts federal district court case, also held that the rules creating religious exemptions from the contraceptive coverage mandate do not violate the Establishment Clause.

10th Circuit: Parolee May Move Ahead In Suit Challenging His Placement In Christian Housing

In Janny v. Gamez, (10th Cir., Aug. 6, 2021), the U.S. 10th Circuit Court of Appeals held that a parolee, who is an atheist, should be able to move ahead with his Free Exercise and Establishment Clause claims growing out of a requirement that in order to stay out of jail he stay at a Christian homeless shelter and participate in its religious programming.  The court said in part:

[W]hile the Lemon test remains a central framework for Establishment Clause challenges, it is certainly not the exclusive one.... And claims of religious coercion, like the one presented here, are among those that Lemon is ill suited to resolve. Lee [v. Weisman] teaches that a simpler, common-sense test should apply to such allegations: whether the government “coerce[d] anyone to support or participate in religion or its exercise.” ...

Mr. Janny argues that Officer Gamez’s written parole directive to abide by the Mission’s “house rules as established,”... shows the State required him to participate in the Mission’s religious programming.... These facts establish a genuine dispute as to whether the State, through Officer Gamez, acted not just to place Mr. Janny in the Mission, but to place him specifically into the Christian-based Program....

The record [also] allows Mr. Janny to reach the jury on his claim that Officer Gamez burdened his right to free exercise by allegedly presenting him with the coercive choice of obeying the Program’s religious rules or returning to jail.

The court also rejected defendants' qualified immunity defenses. 

Judge Carson dissented in part, contending that the director of the Mission should not be liable as a state actor.

ACLU issued a press release announcing the decision.

Satanic Temple Can Move Ahead With Establishment Clause Claim As To Invocation Denial

In The Satanic Temple, Inc. v. City of Boston, MA (D MA, July 21, 2021), a Massachusetts federal district court refused to dismiss an Establishment Clause challenge to Boston's City Council invocation policy.  The court said in part:

TST reached out to the Boston City Council, which opens each of its meetings with a prayer, asking to give the invocation.... Defendant denied those requests, explaining that City Councilors choose speakers from their communities for their assigned weeks, and that TST could not lead the prayer without an invitation from a City Councilor.... Those denials were made after members of the Boston public objected to the possibility of TST opening a City Council session with a prayer and in the wake of a public outcry and 2,000-person protest after TST attempted to stage a “Black Mass” at Harvard....

Given the fact-specific nature of the inquiry into the constitutionality of legislative prayer schemes and the lack of controlling authority from the First Circuit or Supreme Court, this Court will not dismiss TST’s Establishment Clause claim at the motion to dismiss stage....  TST has plausibly raised a claim that Defendant’s prayer selection policy has discriminated against it in violation of the Establishment Clause.

The court dismissed plaintiff's free exercise, free speech and equal protection challenges. Universal Hub reports on the decision.

9th Circuit Denies En Banc Review Of Football Coach's Challenge To Dismissal For On-Field Prayer

In Kennedy v. Bremerton School District, (9th Cir., July 19, 2021), the U.S. 9th Circuit Court of Appeals rejected a sua sponte request for a rehearing en banc in the case of a high school football coach who insisted on prominently praying at the 50-yard line immediately after football games. A 3-judge panel upheld upheld a Washington state school board's dismissal of the coach. (See prior posting.) The denial of the rehearing however generated six concurring and dissenting opinions and statements spanning 92 pages, reflecting sharp differences. Judge Smith's opinion concurring in the denial of review says in part:

Unlike Odysseus, who was able to resist the seductive song of the Sirens by being tied to a mast and having his shipmates stop their ears with bees’ wax, our colleague, Judge O’Scannlain, appears to have succumbed to the Siren song of a deceitful narrative of this case spun by counsel for Appellant, to the effect that Joseph Kennedy, a Bremerton High School (BHS) football coach, was disciplined for holding silent, private prayers. That narrative is false.... [T]he reader should know the following basic truth ab initio: Kennedy was never disciplined by BHS for offering silent, private prayers.

Senior Judge O'Scannlain, joined in full by 5 other judges and in part by two more, said in part:

It is axiomatic that teachers do not “shed” their First Amendment protections “at the schoolhouse gate.”... Yet the opinion in this case obliterates such constitutional protections by announcing a new rule that any speech by a public school teacher or coach, while on the clock and in earshot of others, is subject to plenary control by the government. Indeed, we are told that, from the moment public high school football coach Joseph Kennedy arrives at work until the very last of his players has gone home after a game, the Free Speech Clause simply doesn’t apply to him.

First Liberty announced that an appeal will be filed with the U.S. Supreme Court.

Suit Claims Change Of High School's Name Was Motivated By Anti-Catholic Sentiment

Suit was filed this week in a California state trial court challenging on Establishment Clause, as well as other, grounds the change of name of San Diego's Junipero Serra High School to Canyon Hills High School.  The complaint (full text) in Cox v.Renfree, (CA Super. Ct., filed 7/14/2021) alleges in part:

the entire effort to rebrand Junipero Serra High School has demonstrated systemic, deep-seated, anti-Catholic motivations....

The Franciscan priest, Junipero Serra, has been regarded as California's founding father. He established a Mission on the shores of San Diego Bay in 1769. The complaint in the lawsuit contends:

In the summer of 2020, Black Lives Matter protests and other demonstrations swept across the county, sparking an acute interest in Critical Race Theory and public erasure of symbols of colonialism—including Serra himself. Statues of Serra were defaced and attacked, and one of his churches was burned in an attack that represented animosity toward the Catholic faith and its role in California history. 

The complaint goes on to argue:

By selecting the rattlesnake as the school’s new mascot, which tribal members have stated is a sacred creature to their people, and removing the name of a Catholic saint from the school, Defendants are clearly endorsing and celebrating the religion of one group at the expense of another.

Thomas More Society issued a press release announcing the filing of the lawsuit.

Plaintiff Lacks Standing To Challenge Michigan COVID Order Exemption For Worship Services

In Bormuth v. Whitmer, (ED MI, July 12, 2021), a Michigan federal magistrate judge denied plaintiff's motion to file a supplemental complaint in a challenge to a portion of Michigan Governor Gretchen Whitmer's now-rescinded COVID-19 Orders. At issue was an exemption from penalties for violation of stay-at-home orders by places of religious worship that allowed worship services, or by individuals travelling to places of worship. The court said in part:

The exemptions from prosecution for places of religious worship and their owners caused no harm to Plaintiff; if anything, they provided a protection to him. Under the exemptions, he enjoyed the freedom to practice his own religion at any indoor or outdoor “place of religious worship” without fear of prosecution....

The exemptions at issue neither established a state religion, nor favored particular religions, nor inhibited Plaintiff’s own free expression of genuinely-held religious beliefs. Indeed, the exemptions protected his expression of such beliefs....

Plaintiff’s proposed supplemental complaint still fails to demonstrate standing on the basis of a “concrete, particularized, and actual or imminent” injury... His proposed supplemental pleading will not cure the lack of justiciability identified in my prior report and recommendation.

Plaintiffs Lack Standing To Challenge "Black Lives Matter" Mural As Establishment Clause Violation

In Penkoski v. Bowser, (D DC, July 12, 2021), the D.C. federal district court held that a Black Lives Matter mural painted on DC streets was government speech, rejecting plaintiffs' claim of content discrimination in a public forum.  The court also dismissed on standing grounds plaintiffs' claim that the mural violates the Establishment Clause by promoting the religion of Secular Humanism.