Supreme Court Says Montana Cannot Exclude Religious Schools From Tax-Credit Program

In Espinoza v. Montana Department of Revenue, (US Sup. Ct., June 30, 2020), the U.S. Supreme Court in a 5-4 decision held that Montana's exclusion of religious schools from its scholarship tax credit program violates the Free Exercise clause of the U.S. Constitution.  The Montana Supreme Court had invalidated the entire scholarship program because it included religious schools, relying on the "no aid" provision of the Montana constitution.  Chief Justice Roberts majority opinion, joined by Justices Thomas, Alito, Gorsuch and Kavanaugh, said in part:

This case also turns expressly on religious status and not religious use. The Montana Supreme Court applied the no-aid provision solely by reference to religious status. The Court repeatedly explained that the no-aid provision bars aid to “schools controlled in whole or in part by churches,” “sectarian schools,” and “religiously-affiliated schools.”... Applying this provision to the scholarship program, the Montana Supreme Court noted that most of the private schools that would benefit from the program were “religiously affiliated” and “controlled by churches,” and the Court ultimately concluded that the scholarship program ran afoul of the Montana Constitution by aiding “schools controlled by churches.”... The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran, which excluded organizations “owned or controlled by a church, sect, or other religious entity.”...

...Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.

Justice Thomas filed a concurring opinion which was joined by Justice Gorsuch, saying in part:

I write separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights. Until we correct course on that interpretation, individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom.

Justice Alito filed a concurring opinion, saying in part:

Respondents argue that Montana’s no-aid provision merely reflects a state interest in “preserv[ing] funding for public schools,”... known as “common schools” during the Blaine era. Yet just as one cannot separate the Blaine Amendment from its context, “[o]ne cannot separate the founding of the American common school and the strong nativist movement.”  Spearheaded by Horace Mann, Secretary of the Massachusetts Board of Education from 1837 to 1848, the common-school movement did not aim to establish a system that was scrupulously neutral on matters of religion. (In a country like ours, that would have been exceedingly difficult, if not impossible.) Instead the aim was to establish a system that would inculcate a form of “least-common denominator Protestantism.”This was accomplished with daily reading from the King James Bible, a curriculum that, Mann said, let the book “speak for itself.” ... Yet it was an affront to many Christians and especially Catholics, not to mention non-Christians.

Mann’s goal was to “Americanize” the incoming Catholic immigrants. In fact, he and other proponents of the common-school movement used language and made insinuations that today would be considered far more inflammatory.

Justice Gorsuch filed a concurring opinion, saying in part:

 I was not sure about characterizing the State’s discrimination in Trinity Lutheran as focused only on religious status, and I am even less sure about characterizing the State’s discrimination here that way....

Maybe it’s possible to describe what happened here as status-based discrimination. But it seems equally, and maybe more, natural to say that the State’s discrimination focused on what religious parents and schools do—teach religion....

Most importantly, though, it is not as if the First Amendment cares. The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.

Justice Ginsburg filed a dissenting opinion, joined by Justice Kagan, saying in part:

[T]he Montana court remedied the state constitutional violation by striking the scholarship program in its entirety. Under that decree, secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioners’ religion.

Justice Breyer filed a dissenting opinion, joined in part by Justice Kagan, saying in part:

It is true that Montana’s no-aid provision broadly bars state aid to schools based on their religious affiliation. But this case does not involve a claim of status-based discrimination. The schools do not apply or compete for scholarships, they are not parties to this litigation, and no one here purports to represent their interests. We are instead faced with a suit by parents who assert that their free exercise rights are violated by the application of the no-aid provision to prevent them from using taxpayer-supported scholarships to attend the schools of their choosing. In other words, the problem, as in Locke, is what petitioners “‘propos[e] to do—use the funds to’” obtain a religious education. ....

I agree with the majority that it is preferable in some areas of the law to develop generally applicable tests. The problem, as our precedents show, is that the interaction of the Establishment and Free Exercise Clauses makes it particularly difficult to design a test that vindicates the Clauses’ competing interests in all—or even most—cases.That is why, far from embracing mechanical formulas, our precedents repeatedly and frankly acknowledge the need for precisely the kind of “‘judgment-by-judgment analysis’” the majority rejects.

Justice Sotomayor filed a dissenting opinion, saying in part:

Neither differential treatment nor coercion exists here because the Montana Supreme Court invalidated the tax-credit program entirely....

To be sure, petitioners may want to apply for scholarships and would prefer that Montana subsidize their children’s religious education. But this Court had never before held unconstitutional government action that merely failed to benefit religious exercise....

[T]he Montana Supreme Court remedied a state constitutional violation by invalidating a state program on state-law grounds, having expressly declined to reach any federal issue....

NPR reports on the decision.

Minister Challenges Louisiana Cockfighting Ban

Suit was filed last week in a Louisiana federal district court by Holy Fight Ministries and its minister claiming that Louisiana's ban on cockfighting violates their federal and state free exercise rights as well as the Establishment Clause. The complaint (full text) in Plumbar v. Landry, (MD LA, filed 6/12/2020), alleges in part:

Reverend Plumbar, Holy Fight Ministries and its congregation hold the sincere religious belief that cockfighting represents that while they strive for CHRIST, they have a necessary symbolic physical manifestation, an epiphany through the fighting cock, a religious mandate of the struggle between good and evil, a struggle for life or death for the Salvation of the soul, and thus cockfighting is an integral and essential part of their religious faith.

[Thanks to Scott Mange for the lead.]

Suit Challenges Prof's Radical Interpretation of Islam

This week, a Muslim student at Scottsdale, Arizona Community College filed a lawsuit against the college and a World Politics professor claiming that the faculty member's course contains a module on Islamic terrorism that is based on one-sided, biased perspectives of Islam. The complaint in Sabra v. Maricopa County Community College District, (D AZ, filed 6/2/2020) (full text of complaint and exhibits are at the end of this CAIR press release) alleges that the professor violates the Establishment Clause by teaching that Islam mandates terrorism without telling students that only some extremists believe this. It also claims that the professor violated the free exercise clause by requiring the student to agree to the professor's radical interpretation of Islam in answering a quiz. A law firm was commissioned to conduct an outside review of the College's response to complaints about the professor's actions. The full text of that report is at the end of this article from Fronteras.

Local Wisconsin COVID-19 Orders Challenged On 1st Amendment Grounds

A lawsuit was filed this week in a Wisconsin federal district court against ten local public health officers and a number of other local and state officials seeking to prevent enforcement of local COVID-19 Emergency Orders after the Wisconsin Supreme Court invalidated a statewide emergency order because it exceeded legislative authority and was improperly adopted. (See prior posting.) This week's lawsuit was brought by seventeen plaintiffs, one of whom is a pastor.  The complaint (full text) in Yang v. Powers, (ED WI, filed 5/20/2020) alleges in part that the local orders violate plaintiffs' free exercise rights and the Establishment Clause, as well as their freedom of assembly and equal protection rights. Urban Milwaukee reports on the lawsuit.

Maine Ban On Religious Gatherings Over 10 Persons Is Upheld

In Calvary Chapel of Bangor v. Mills, (D ME, May 9, 2020), a Maine federal district court refused to issue a temporary restraining order against Maine Governor Janet Mills' COVID-19 order which prohibits religious gatherings of more than ten people. The court rejected plaintiff's free exercise, Establishment Clause and free speech challenges to the Order.

Waiver For Foster Care Agencies To Select Parents Using Religious Criteria Violates Establishment Clause

In Rogers v. U.S. Department of Health and Human Services, (D SC, May 8, 2020), a South Carolina federal district court refused to dismiss Establishment Clause and sexual orientation discrimination claims by a lesbian couple who challenged waivers granted by the state and federal government allowing religious child placement agencies (CPA's) receiving government funds to select foster parents on the basis of religion. (See prior posting.) The court said in part:

Plaintiffs allege that their inability to become foster parents through Miracle Hill was directly caused by the actions of the State Defendants and Federal Defendants because they have affirmatively enabled the discrimination against Plaintiffs by authorizing Miracle Hill and other religiously-affiliated CPAs to use religious criteria to reject prospective foster parents....

[T]he court finds that a reasonable, informed observer could conclude that the Defendants’ actions were taken in an effort to protect a specific CPA, Miracle Hill, and permit discrimination within South Carolina’s foster care program on the basis of Miracle Hill’s religious criteria. Other courts have similarly held that where, as Plaintiffs allege occurred in this case, a state’s authorization for faith-based CPAs to use religious criteria to exclude prospective foster parents “objectively endorses the religious views of those agencies[,] . . . sending a message . . . that [those prospective foster parents who are rejected] are outsiders, not full members of the community.”... Accordingly, taking all facts set forth in the Complaint as true, Plaintiffs have set forth sufficient allegations that Defendants’ actions had the primary effect of advancing and endorsing religion and, thereby, violate the Lemon test and the requirements of the Establishment Clause. ....

Contrary to Defendants’ argument, the Supreme Court has long recognized that the Constitution does not permit “a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.”... Therefore, to the extent Defendants’ assert that their actions are immune from challenge under the Establishment Clause as “religious accommodation,” such argument is directly contrary to the well-pled allegations in the Complaint and long-established federal jurisprudence and must be rejected at this stage of the proceedings.

Lambda Legal issued a press release announcing the decision.

Pastors Challenge Maryland's COVID-19 Limits On Worship Services

As reported by the Baltimore Sun:

Maryland politicians, pastors and business owners banded together Saturday afternoon to file a sweeping federal lawsuit aimed at ending restrictions enacted by Maryland Gov. Larry Hogan in response to the coronavirus.

The lawsuit argues that the governor’s orders banning large gatherings and closing most businesses violate constitutional and federal laws protecting commerce, freedom of assembly, the right to protest and the right to practice their religion.

The 56-page complaint (full text) in Antietam Battlefield KOA v. Hogan, (D MD, filed 5/2/2020) includes nine pastors and a deacon among the 19 plaintiffs.It alleges in part that the Governor's ten-person limit on gatherings for religious worship violates plaintiffs free exercise rights and violates the Establishment Clause by dictating the manner in which Christians and churches must worship.

Nativity Scene On Indiana County Building Property Held Unconstitutional

In Woodring v. Jackson County, Indiana, (SD IN, April 30, 2020), an Indiana federal district court held that the Establishment Clause is violated by a nativity scene displayed on the lawn of an historical courthouse that now houses county offices.  The court first concluded that plaintiff has standing to sue:

Her injury is the direct contact she must endure with a display that she alleges violates the Establishment Clause in the course of exercising her rights as a citizen of Jackson County.

Moving to the merits of the claim, the court said in part:

Here ... the Nativity scene is not on its own. It is accompanied by two other arguably secular symbols of Christmas: Santa Claus and a group of Christmas carolers....

Nevertheless, two facts persuade the Court that this Nativity scene would give a reasonable observer the impression that the government is endorsing a religion. The first of those facts is the geography of the display.... Santa and the carolers are placed to the far side of the display, away from the more centralized Nativity display, which straddles the sidewalk subdividing the lawn.... The crèche is the vast majority of the display ... making it appear much larger than the solitary Santa figure.... The carolers have been placed in the back of the display, lessening the attention they would draw from an observer....

The second fact that convinces the Court that the Nativity scene would give the impression of a religious endorsement is the scene’s history. For many years, it was only a Nativity scene, with no secular elements at all.... But in 2018, in response to a letter from the Freedom from Religion Foundation questioning the display’s constitutionality, the President of the County Commissioners ... physically moved Santa Claus and his sleigh and reindeer and the carolers to a place nearer the crèche.... The addition of less prominent secular symbols at the fringes of the display is not enough to counteract the impression a reasonable observer would have gotten from seeing the Nativity display placed on the lawn of the Courthouse for nearly 20 years. The Court has no doubt that a sufficient balancing between secular and nonsecular elements could bring this display into harmony with the First Amendment despite its history, but that balancing has not occurred here. Thus, the display fails the endorsement test.

1st Circuit OKs "So Help Me God" In Naturalization Oath

In Perrier-Bilbo v. United States, (1st Cir., April 3, 2020), the U.S. 1st Circuit Court of Appeals rejected constitutional challenges to the inclusion of "so help me God" at the end of the oath of allegiance administered at naturalization ceremonies. Plaintiff, a French citizen, was offered the options of just not repeating those words during the ceremony or of having a private ceremony where the oath would be administered without that phrase. She rejected these as inadequate.

The court denied plaintiff's Establishment Clause challenge, applying the test used by the Supreme Court in American Legion v. American Humanist Association, saying in part:

We follow the Supreme Court's most recent framework and apply American Legion's presumption of constitutionality to the phrase "so help me God" in the naturalization oath because we consider the inclusion of similar words to be a ceremonial, longstanding practice as an optional means of completing an oath. And because the record does not demonstrate a discriminatory intent in maintaining those words in the oath or "deliberate disrespect" by the inclusion of the words, Perrier-Bilbo cannot overcome the presumption.

Rejecting Plaintiff's Free Exercise claim, the court said in part:

We do not second-guess the sincerity of Perrier-Bilbo's beliefs or her feeling of distress upon hearing the phrase at issue. But even if the phrase offends her, offense "does not equate to coercion," Town of Greece, 572 U.S. at 589, and the Free Exercise Clause does not entitle her to a change in the oath's language as it pertains to others....

The court rejected Plaintiff's argument under RFRA, saying in part:

While she might find the options offered by the Government subjectively burdensome, however, the district court was right to conclude that not every imposition or inconvenience rises to the level of a "substantial burden."

The court also rejected equal protection and due process challenges.  Judge Barron filed a concurring opinion. Free Thinker blog discussed the decision.

8th Circuit: Catholic Hospital Retirement Plan Is Exempt From ERISA

In Sanzone v. Mercy Health, (8th Cir., March 27, 2020), the U.S. 8th Circuit Court of Appeals held that the retirement plan of a Catholic-affiliated hospital qualifies for the "church plan" exemption under ERISA. The court however remanded the case for consideration of whether deprivation of ERISA protections created sufficient injury to confer standing to challenge the church plan exemption as an Establishment Clause violation.  Reuters reports on the decision.

High School Football Coach's Complaint Over On-Field Prayer Ban Is Dismissed

In Kennedy v. Bremerton Schoool District, (W WA, March 5, 2020), a Washington federal district court dismissed 1st Amendment and Title VII claims by a high school football coach who was suspended when he insisted on prominently praying at the 50-yard line immediately after football games.  The court said in part:

The ensuing dispute has highlighted a tension in the First Amendment between a public-school educator’s right to free religious expression and their school’s right to restrict that expression when it violates the Establishment Clause....

Given this practical assessment of Kennedy’s duties as a coach, the Court must hold that his prayers at the 50-yard line were not constitutionally protected.... Like the front of a classroom or the center of a stage, the 50-yard line of a football field is an expressive focal point from which school-sanctioned communications regularly emanate. If a teacher lingers at the front of the classroom following a lesson, or a director takes center stage after a performance, a reasonable onlooker would interpret their speech from that location as an extension of the school-sanctioned speech just before it. The same is true for Kennedy’s prayer from the 50-yard line....

Here, Kennedy’s practice of praying at the 50-yard line fails both the endorsement and coercion tests and violates the Establishment Clause. While it may not convey school approval as universally as a public announcement system, speech from the center of the football field immediately after each game also conveys official sanction. This is even more true when Kennedy is joined by students or adults to create a group of worshippers in a place the school controls access to.

The case, at the preliminary injunction stage, has already worked its way to the U.S. Supreme Court where certiorari was denied, but with an unusual 6-page concurring statement by 4 justices. (See prior posting.) Kitsap Sun reports on yesterday's district court decision.

No 1st Amendment Violation In Requiring Parolee To Live At Christian Homeless Shelter

In Janny v. Gamez, (D CO, Feb. 21, 2020), a Colorado federal district court dismissed an inmate's First Amendment challenge to his arrest for parole violations. Mark Janny's parole officer directed him to stay at a Christian homeless shelter in order to meet the parole requirement that he establish a residence of record. Janny was expelled from the shelter's program when he refused to attend chapel religious services. The court held that plaintiff's Establishment Clause rights were not infringed because there was a secular purpose for the homeless shelter requirement. The court also accepted defendant's qualified immunity defense to an assertion of free exercise violations, saying that it was not clearly established that a parole officer violates a parolee’s rights by requiring him to reside at a facility that provides religious programming.

11th Circuit: Pensacola Cross May Stay

In Kondrat'yev v. City of Pensacola, Florida, (11th Cir., Feb. 19, 2020), the U.S. 11th Circuit Court of Appeals, in a case with a complicated procedural history, held that a 34-foot cross in Pensacola's Bayview Park does not violate the Establishment Clause. Originally a 3-judge panel of the 11th Circuit, relying on past precedent, reluctantly ordered the cross removed. (See prior posting.)  The case was appealed to the Supreme Court which summarily vacated the judgment and remanded the case to the 11th Circuit for further consideration in light of its decision in American Legion v. American Humanist Assn. (See prior posting).  Now the 11th Circuit has decided that the cross may stay.  However, two of the judges filed a concurring opinion questioning the circuit's precedent on when plaintiffs have standing to bring an Establishment Clause challenge, saying in part:

we should—whether in this case or some other— convene en banc in order to bring our own Establishment Clause standing precedent into line with the Supreme Court’s and to clarify that  offen[se],”“affront[],” and “exclu[sion]” fail to satisfy Article III’s injury-in-fact requirement.

Pensacola News Journal reports on the decision.

4th Circuit Hears Arguments In Challenge To Trump's Travel Ban

The U.S. 4th Circuit Court of Appeals yesterday heard oral arguments (audio of full oral arguments) in International Refugee Assistance Project v. Trump.  In the case, a Maryland federal district court refused to dismiss Establishment Clause, due process and equal protection challenges to President Trump's third travel ban Proclamation. (See prior posting.) The case had been remanded by the U.S. Supreme Court in light of its rejection of an Establishment Clause challenge in a parallel case. Brown County Democrat reports on the oral arguments.

8th Circuit Hears Arguments In Religion Clause Challenge To Missouri Abortion Restrictions

The U.S. 8th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Doe v. Parson (Docket No. 19-1578). In the case, a Missouri federal district court rejected both Establishment Clause and free exercise challenges to Missouri's abortion law.  The suit, filed by a member of the Satanic Temple, challenges the requirement that health care providers furnish women seeking an abortion in Missouri a state-prepared booklet that states, in part, that life begins at conception. (See prior posting.) Courthouse News Service reports on yesterday's arguments.

New Report On State Laws Impacting Church-State Separation and Religious Equality

Last week, American Atheists released its report: 2019 State of the Secular States.  The introduction to the 45-page report says in part:

In 2019 we saw a heightened awareness about the importance of the separation of religion and government, due in part to the increasing efforts to undermine this bedrock protection for religious freedom. At the federal level, the Trump Administration has stepped up its attempts to enshrine one particular religious viewpoint into the law by finalizing regulations promoting denial of health care by religious health care providers and by proposing rules which would prioritize religious beliefs over civil rights protections.

At the same time, Christian nationalists have continued to push forward Project Blitz, a well-organized and well-funded campaign designed to undermine religious equality around the country by using legislation at the state level to promote a distorted vision of religious freedom.... At www.BlitzWatch.orghttps://www.blitzwatch.org/, we provide tools to oppose this secretive campaign, and we closely track these negative bills....

In this second edition of the State of the Secular States report, we expand the number of evaluated law and policy measures. For every state, as well as the District of Columbia and Puerto Rico, we have assessed over 40 statewide law and policy measures, both positive and negative, pertaining to religious equality and the separation of religion and government.

Attorney Has Standing To Challenge Judge's Prayer Practices

In Freedom From Religion Foundation, Inc. v. Mack, (SD TX, Jan. 13, 2010), a Texas federal district court held that an attorney has standing to challenge a Texas Justice of the Peace's practice of having his court sessions opened with a prayer. The attorney, who is non-religious, has declined clients in order to avoid the judge's courtroom. The court said in part:

Here, Attorney Roe has offered testimony that he practices law in Montgomery County, Texas, has appeared in Judge Mack’s courtroom on several occasions, and that he avoids the courtroom because of Judge Mack’s practice. The harm alleged does not occur only because he enters the courtroom, but also because he must avoid the courtroom since the practice continues. Therefore, there is a substantive risk that were he to accept a case in Judge Mack’s court, he will be exposed to the prayer practice. Hence, Attorney Roe has satisfied the standing requirements.

Judge Mack also challenges the FFRF’s standing. Because the Court has determined that Attorney Roe has standing, the FFRF has associational standing.

Missouri AG Supports High School Football Coaches' Prayer Practices

Missouri Attorney General Eric Schmitt this week released a letter (full text) which he sent on Dec. 3 to the superintendent of the Cameron, Missouri School District supporting high school football coaches against charges in a letter (full text) from the Freedom From Religion Foundation . In its Oct. 28 letter, FFRF said in part:

It is our understanding the Cameron High School's head football coach, Jeff Wallace, and assistant football coach, David Stucky, have been holding religious "chapel" services for players before and after football games where coaches pray with players and read and discuss bible verses.  We understand that after games, Coach Wallace holds religious services with players on the fifty-yard line and leads players in prayer.  We understand that Coach Wallace often brings in outside preachers to proselytize to players as well.

It is illegal for public school athletic coaches to lead their teams in prayer or religious worship.

Responding to this, Attorney General Schmitt in his letter said in part:

FFRF is an extreme anti-religion organization that seeks to intimidate local governments into surrendering their citizens' religious freedom and to expunge any mention of religion from the public square....

Our understanding is that no coach or other Cameron official has forced any football player to participate in prayer or taken any action against any player who chose not to participate.   The prayer occurs outside of the football game.  The prayer is not broadcast over stadium loudspeakers, and fans evidently cannot hear any part of the prayer.  The school district reports that it received no complaints from anyone about the prayer, and FFRF does not reference any complainant in their letter.   Evidently, FFRF's threat does not reflect any discomfort with the prayers in the local community.  Rather, it reflects only FFRF's radical agenda. And without a complainant, FFRF lacks standing to sue the school district, no matter how strongly it objects to this voluntary prayer.

 Friendly Atheist blog reports on these developments.

Controversy Over Army Licensed Items With Religious Theme

First Liberty Institute yesterday sent a letter (full text) to the U.S. Army complaining about the Army's order to a private faith-based company that is licensed to produce Army-themed products. (Press release). The Army instructed the company to remove Biblical verses from its popular Shields of Strength (SoS) dog tags. Since 9-11, SoS has produced over 4 million dog tags, the most popular carrying the words of Joshua 1:9: "Have I not commanded you? Be strong and courageous. Do not be afraid; do not be discouraged, for the Lord your God will be with you wherever you go."

The Army's action follows a complaint from the Military Religious Freedom Foundation about the religious content of the Army-licensed products.  First Liberty argues, however:

once the Army creates a limited public forum via a trademark licensing regime and allows private entities such as SoS to obtain licenses, the Army cannot “discriminate against speech on the basis of its viewpoint” in the administration of the trademark licensing regime. The Army is therefore prohibited from discriminating against SoS because of its inclusion of biblical references on its products, in its advertisements, or on its website.....

More recently, in Iancu v. Brunetti the Supreme Court ...  invalidated the Lanham Act’s “immoral or scandalous” clause as viewpoint discrimination.....

Clearly, if a prohibition against trademarking offensive, immoral, or scandalous speech constitutes viewpoint discrimination, then certainly the Army’s prohibition against using religious speech in conjunction with its trademark does, too. This is especially true because the Army routinely grants licenses to similar, non-religious speech.

Cert. Denied In Challenge To High School Unit On Islam

On Tuesday, the U.S. Supreme Court denied review in Wood v. Arnold, (Docket No. 18-1438, certiorari denied 10/15/2019). (Order List.)   In the case, the 4th Circuit Court of Appeals rejected a high school student's Establishment Clause and compelled speech challenges to a classroom unit on The Muslim World.  One challenge was to the teacher's Power Point slide which included the statement that most Muslims' faith is stronger than that of the average Christian.  The other challenge was to the requirement on a work sheet for the student to fill in two words of the shahada. (See prior posting.) The Free Thinker blog has more on the case.