7th Circuit Hears Arguments On Christmas Pageant Challenge

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in Freedom From Religion Foundation v. Concord Community Schools. (Audio of oral arguments).  In the case, an Indiana federal district court upheld the constitutionality of a modified version of the annual Christmas Spectacular put on by an Indiana high school.  Plaintiffs had challenged the pageant under the Establishment Clause. The court had previously issued a preliminary injunction against the 2014 and proposed 2015 versions that included a live Nativity Scene and Bible passages. (See prior posting.)  Subsequently the court awarded nominal damages and a declaratory judgment as to the earlier versions. (See prior posting.)  Courthouse News Service reports in more detail on yesterday's oral arguments.

4th Circuit: Latin Cross War Memorial Violates Establishment Clause

In American Humanist Association v. Maryland-National Capital Park and Planning Commission, (4th Cir., Oct. 18, 2017), the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a 40-foot tall Latin Cross on government property created as a World War I Veterans' Memorial violates the Establishment Clause.  The majority summarized its holding:

The monument here has the primary effect of endorsing religion and excessively entangles the government in religion. The Latin cross is the core symbol of Christianity. And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds. Therefore, we hold that the purported war memorial breaches the “wall of separation between Church and State.”

Chief Judge Gregory, dissenting in part, said:

I conclude that a reasonable observer would understand that the Memorial, while displaying a religious symbol, is a war memorial built to celebrate the forty-nine Prince George’s County residents who gave their lives in battle. Such an observer would not understand the effect of the Commission’s display of the Memorial—with such a commemorative past and set among other memorials in a large state park— to be a divisive message promoting Christianity over any other religion or nonreligion. A cross near a busy intersection "need not be taken as a statement of governmental support for sectarian beliefs...."

Baltimore Sun reports on the decision.

Another Court Enjoins Enforcement of Third Travel Ban

In International Refugee Assistance Project v. Trump, (D MD, Oct. 17, 2017), a Maryland federal district court became the second court (see prior posting) to bar enforcement of most of the third version of President Trump's travel ban.  As did the Hawaii federal district court the day before, the Maryland federal court held that the Presidential Proclamation violates provisions of the Immigration and Nationality Act that prohibit denial of immigrant visas on the basis of nationality.  Disagreeing with the Hawaii federal court, it held that the government had made an adequate fining of "detrimental interest" to justify the ban.

Reaching an issue that the Hawaii court had avoided, the Maryland federal court concluded that, like the prior two bans, the third travel ban also violates the Establishment Clause.  It concluded that the third version of the ban is merely "the inextricable re-animation of the twice-enjoined Muslim ban." The court said in part:

... [A] simple check on the demographics of the geographic area affected by the Proclamation, with a combined population that is predominantly Muslim, reveals that its impact closely aligns with religious affiliation....  Likewise, the inclusion of two non-majority Muslim nations, North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the Proclamation. The Venezuela ban is qualitatively different from the others because it extends only to government officials, and the ban on North Korea will, according to Department of State statistics, affect fewer than 100 people....

Thus, while Defendants assert that the Proclamation’s travel ban was arrived at through the routine operations of the government bureaucracy, the public was witness to a different genealogy, one in which the President—speaking “straight to the American people,” ... announced his intention to go back to and get even tougher than in EO-1 and EO-2.... 

The reasonable observer using a “head with common sense” would rely on the statements of the President to discern the purpose of a Presidential Proclamation.... Here, those statements do not offer “persuasive” rejection of the President’s prior calls for a Muslim ban, or his stated intention to use a ban on certain “dangerous territory” to effectuate a Muslim ban, ... nor do they show that the stated intention to impose a Muslim ban has been “repealed or otherwise repudiated” 

The court, while issuing a nationwide injunction, limited its injunction to visa applicants who have a credible claim of a bona fide relationship with a person or entity in the United States, ad defined in prior litigation on the President's travel bans.  It also excluded travelers from Venezuela or North Korea. CNN reports on the decision.

Court Rejects Challenges To Policies Protecting Muslim Women Booking Photos

In Schlussel v. City of Dearborn Heights, (ED MI, Oct. 11, 2017), a Michigan federal district court rejected various challenges by a journalist to a partial denial of her state Freedom of Information Act request for booking photos and videos that were taken of a Muslim woman with her hijab removed.  The city denied the request under the state FOIA's privacy exception.  In the meantime the city had modified its booking procedures-- in response to litigation-- to allow women to continue to wear their hijabs or burkas in booking photos.

The court rejected claims by plaintiff, who was female and Jewish, that her equal protection rights were violated because the photos and videos in question had been released to a Muslim male who was the Muslim woman's lawyer.  The court also rejected a claim that the city's new booking policy violates the Establishment Clause because it applies only to Muslim women.

Court Says Tax Code's Parsonage Allowance Is Unconstitutional

In Gaylor v. Mnuchin, (WD WI, Oct. 6, 2017), a Wisconsin federal district court held that the parsonage allowance provision in Sec. 107(2) of the Internal Revenue Code violates the Establishment Clause. That section allows clergy to exclude from income the rental allowance they receive that is used to rent or provide a home.  In a 2013 decision, the same court reached a similar conclusion, but was reversed on appeal on standing grounds.  Plaintiffs cured those standing issues in the present case. The court summarized it holding:

any reasonable observer would conclude that the purpose and effect of § 107(2) is to provide financial assistance to one group of religious employees without any consideration to the secular employees who are similarly situated to ministers. Under current law, that type of provision violates the establishment clause.

As a remedy, however, the court issued only a declaratory judgment, and gave the parties the opportunity to file supplemental briefs on additional remedies such as a tax refund to plaintiffs who were taxed on their housing allowances from their employer (the Freedom From Religion Foundation), or an injunction of some sort.  FFRF issued a press release announcing the decision. [Thanks to Bob Ritter for the lead.]

Religious Challenge To Missouri Informed Consent Abortion Law Goes To State High Court

In Doe v. Greitens, (MO App., Oct. 3, 2017), a Missouri appellate court transferred to the state Supreme Court an appeal in a religious freedom challenge to the state's abortion Informed Consent Law.  Missouri's law requires that a person seeking an abortion first receive a booklet containing specified information, including a statement that life begins at conception and that abortion will terminate the life of a separate, unique, living human being.  It also requires that the woman be given the opportunity to view an ultrasound and hear a fetal heartbeat, and then wait 72 hours before the abortion procedure.  According to the court:

Ms. Doe has alleged that the Informed Consent Law restricted her free exercise of religion and constitutes the state’s establishment of religion. The law, allegedly based on a religious tenet, required that she act and spend time and money, before undergoing a medical procedure in this state, contrary to actions—substantially motivated by her sincerely held religious beliefs—that she would have taken or refused to undertake....

Ms. Doe has alleged that Missouri’s Informed Consent Law unconstitutionally fosters an excessive government entanglement with religion in violation of the Establishment Clause. In this regard, she claims that the sole purpose of the law is to indoctrinate pregnant women into the belief held by some, but not all, Christians that a separate and unique human being begins at conception. Because the law does not recognize or include other beliefs, she contends that it establishes an official religion and makes clear that the state disapproves of her beliefs.

Under Missouri law, a transfer to the Supreme Court is required where a constitutional claims are real and substantial.

Over Dissent, En Banc Rehearing Denied On Mississippi Conscience Protection Act

In Barber v. Bryant, (5th Cir., Sept. 29, 2017), the U.S. 5th Circuit Court of Appeals by a vote of 12-2 refused to grant an en banc rehearing in a challenge to a Mississippi law (HB 1523) that protects from discriminatory state action anyone who acts on religious or moral beliefs relating to traditional marriage, sex outside of marriage, or transgender rights.  In June, a 3-judge panel held that plaintiffs lack standing to challenge the law. (See prior posting.) Two judges dissented from the denial of an en banc rehearing in an opinion that argues:

... the panel opinion is wrong; the plaintiffs have standing to challenge HB 1523 under Supreme Court and Courts of Appeals precedents. The panel opinion misconstrues and misapplies the Establishment Clause precedent, and, as explained below, its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.

Reluctant Judge Holds Cross On County Seal Is Unconstitutional

In Freedom From Religion Foundation, Inc. v. County of Lehigh, (ED PA, Sept. 28, 2017), a Pennsylvania federal district court held that a large, central Latin cross in the seal and flag of Lehigh County, Pennsylvania violate the Establishment Clause under the Lemon test and the endorsement test.  However Judge Edward Smith devoted much of his opinion to explaining why he disagrees with the Supreme Court's interpretation of the Establishment Clause:

If the drafters’ intent and the plain text of the Establishment Clause had alone guided the evolution of modern First Amendment jurisprudence and shaped the law applicable to this case, its resolution would be cut-and-dry. By including a Latin cross on the Seal, the County has chosen to celebrate the Christian values important throughout its history. The County has not, however, legally compelled its citizens to practice and conform to Christianity, infringed on freedom of conscience, or created political conflict between the Christian Church and other religious sects. Simply put, the County of Lehigh did not intend to “establish” religion or institute a County religion when it adopted Commissioner Herzog’s design for the Seal. And if it had intended to do so, it has certainly failed—one of the plaintiffs himself testified that per the 2010 census, 49 percent of the County reported no religious affiliation at all....

While such considerations appear to be a matter of common-sense in determining whether a government has established a religion in violation of the First Amendment, binding precedent has taken the inquiry in a different direction.

FFRF issued a press release announcing the decision.

UPDATE: The judgment ordering a permanent injunction (full text) was entered on Nov. 2, 2017, to become effective 180 days later, and, if an appeal is filed, with a stay (except for any new uses of the seal) while the appeal is pending.

7th Circuit: Illinois May Apply Education Laws To Bible Colleges

In Illinois Bible Colleges Association v. Anderson, (7th Cir., Aug. 29, 2017), the U.S. 7th Circuit Court of Appeals rejected challenges to three Illinois statutes that require all colleges to obtain state approval before they may issue degrees.  Plaintiffs claimed that applying these statutes to Bible Colleges violates their 1st and 14th Amendment rights. The Court disagreed, saying;

[Plaintiffs] first argue the Illinois regulations violate the Establishment Clause by entangling the government with their religious operations. However, the plaintiffs have not sought ... approval from the State under the applicable statutes. Therefore, there is no basis to believe that the regulations would infringe on their religious beliefs or practices or would unnecessarily entangle the government in religion.... Likewise, the plaintiffs’ Free Exercise claim fails because the statutes are neutral laws of general application and apply equally to secular and religious institutions. The plaintiffs’ Equal Protection claim fares no better: While the state statutes exempt older educational institutions..., when no improper discrimination is involved, the government may include a grandfather clause in legislation without violating the guarantee of Equal Protection. Finally, the student-plaintiff alleges a violation of his right to practice a profession of his choice. But the regulations do not impact that choice. Rather, they merely determine whether he may obtain a degree from specific post-secondary institutions.

Establishment Clause Challenge To Portrayal of Hinduism In California Schools May Proceed

In California Parents for the Equalization of  Educational Materials v. Torlakson, (ND CA, July 13, 2017), plaintiffs challenge the treatment of Hinduism in the Standards and the Framework for history and social science courses taught in the California public schools.  They claim discrimination against Hinduism as compared to the treatment of other religions.  A California federal district court last week held that plaintiffs had stated a claim under the Establishment Clause.  The court relied on impressions of one sixth-grader to support its conclusion that the curriculum may have favored other religions over Hinduism:

The primary message that sixth grade student received was that her teacher and classmates considered Hinduism “cruel,” “primitive and unjust,” and that Hinduism had not been treated with “fairness and dignity.” ... The student formed this impression based in large part on the Framework’s content, which emphasized that the caste system was a part of Hinduism. 

The court however dismissed plaintiffs' equal protection challenge, holding that the equal protection clause may not be used to challenge the content of school curriculum.  The court also rejected plaintiffs' claims of discrimination in the process of adopting the curriculum Framework, as well as free exercise and substantive due process challenges. Courthouse News Service reports on the decision.

4th Circuit En Banc: Rowan County's Invocation Practice Violates Establishment Clause

In Lund v. Rowan County, North Carolina, (4th Cir., July 14, 2017), the U.S. 4th Circuit Court of appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners violates the Establishment Clause. Judge Wilkinson’s 42-page majority opinion reads in part:

We conclude that the Constitution does not allow what happened in Rowan County. The prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion. And because the commissioners were the exclusive prayer-givers, Rowan County’s invocation practice falls well outside the more inclusive, minister-oriented practice of legislative prayer described in Town of Greece. Indeed, if elected representatives invite their constituents to participate in prayers invoking a single faith for meeting upon meeting, year after year, it is difficult to imagine constitutional limits to sectarian prayer practice.

The great promise of the Establishment Clause is that religion will not operate as an instrument of division in our nation. Consistent with this principle, there is a time- honored tradition of legislative prayer that reflects the respect of each faith for other faiths and the aspiration, common to so many creeds, of finding higher meaning and deeper purpose in these fleeting moments each of us spends upon this earth. Instead of drawing on this tradition, Rowan County elevated one religion above all others and aligned itself with that faith. It need not be so. As the history of legislative invocations demonstrates, the desire of this good county for prayer at the opening of its public sessions can be realized in many ways that further both religious exercise and religious tolerance.

Judge Motz, joined by Judges Keenan and Harris, filed a concurring opinion emphasizing that the majority’s holding is consistent with Supreme Court precedent in Marsh and Town of Greece cases.

Judge Niemeyer, joined by Judge Shedd, filed a dissenting opinion arguing that the majority opinion “actively undermines the appropriate role of prayer in American civic life.”  Judge Agee also filed a dissenting opinion which was joined by Judges Niemeyer, Traxler, Shedd, and Diaz, arguing that the majority opinion is “irreconcilable” with Marsh and Town of Greece.  Charlotte Observer reports on the decision.

4th Circuit: OK For College To Downgrade Applicant Whose Interview Discussion of Religion Was Inappropriate

In Buxton v. Kurtinitis, (4th Cir., July 7, 2017), the 4th Circuit rejected free speech and Establishment Clause challenges brought by a rejected applicant seeking admission to a Maryland community college radiation therapy program.  The applicant was graded down on his interview score because he brought up the subject of religion often during the interview.  The court concluded:

... the Free Speech Clause does not protect speech expressed in an admissions interview from admissions consequences in a competitive process. Although Buxton argues that this conclusion will open the door to a wide range of discrimination ..., this fear is misplaced. That the Free Speech Clause is not implicated in this narrow context does not open the door to a parade of discriminatory horribles. Several constitutional protections against discrimination remain in full force even in a competitive application and interview process; the Free Speech Clause is simply not one of them.

The court also rejected the applicant's claim that his rejection that was based in part on his discussion of religion violates the Establishment Clause, saying in part:

... it was not Buxton’s religious belief that caused his low interview score, but rather his choice of topic in the interview room that informed the committee’s determination that he lacked interpersonal skills. This determination was “driven in part by a secular purpose,” ... and thus satisfies the first prong of Lemon.

Church Sues Over Zoning Ruling On Use of Building For Christian School

A suit was filed this week in a Virginia federal district court challenging Spotsylvania County officials' contention that a Baptist church must obtain a special use permit in order for the education wing of the church to house an independent Christian high school whose mission is to provide classical education rooted in the tradition of Catholic teaching. The church says the school is one of its ministries and does not require further zoning approval. The complaint (full text) in Zoan Baptist Church v. Spotsylvania County, (ED VA, filed 6/28/2017) alleges that the county ordinance and the way it has been enforced infringes the church's rights under RLUIPA, as well as under the Establishment and Free Exercise clauses. Plaintiffs have also filed a Brief in Support of their motion for equitable relief. (Full text of brief).

5th Circuit: Plaintiffs Lack Standing to Challenge Mississippi's Anti-LGBT Conscience Law

In Barber v. Bryant, (5th Cir., June 22, 2017), the U.S. 5th Circuit Court of Appeals dismissed for lack of standing two suits challenging Mississippi's HB 1523 which protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions on three topics.  The protected beliefs are that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth.  The district court had concluded that the statute violates the Establishment Clause and Equal Protection Clause. (See prior posting.) However the 5th Circuit concluded that plaintiffs had alleged nothing more than "a general stigmatic injury," and this is insufficient for standing. MS News Now reports on reactions to the decision.

Student Has Standing Under Establishment Clause To Challenge School's Christian Fundraising

In American Humanist Association, Inc. v. Douglas County School District RE-1, (10th Cir, June 20, 2017), the U.S. 10th Circuit Court of Appeals held that one of the plaintiffs challenging a Colorado public school's Christian fundraising efforts has standing to bring an Establishment Clause challenge seeking retrospective relief. However the 10th Circuit agreed with the district court (see prior posting) that the other plaintiffs do not have standing. The appeals court said in part:

Although we have no doubt that plaintiffs are genuinely and fervently committed to righting what they view as an injustice, “a generalized grievance, no matter how sincere, is insufficient to confer standing.”.... Most of the plaintiffs have failed to demonstrate that they or their children experienced “personal and unwelcome contact with government-sponsored religious” activities.....  Further, they have not made out a case for municipal taxpayer standing because they have not shown an expenditure of municipal funds on the challenged activities.

The sole exception is plaintiff Jane Zoe. She contends that DCSD violated the Establishment Clause when school officials announced they were “partnering” with a Christian student group and solicited her and her son for donations to a “mission trip.” The district court held that because Zoe’s contacts with the challenged actions were not conspicuous or constant, she did not suffer an injury for standing purposes.  We find no support in our jurisprudence for the proposition that an injury must meet some threshold of pervasiveness to satisfy Article III.

American Humanist Association issued a press release announcing the decision.

Latin Cross In City Park Violates Establishment Clause

In Kondrat'yev v. City of Pensacola, Florida, (ND FL, June 19, 2017), a clearly reluctant Florida federal district court judge held that a 34-foot concrete Latin Cross that has stood in the city's Bayview Park for decades violates the Establishment Clause.  The cross is the site for an annual Easter sunrise service as well as remembrance services on Veterans Day and Memorial Day.  The court laments:

... the historical record indicates that the Founding Fathers did not intend for the Establishment Clause to ban crosses and religious symbols from public property. Indeed, “the enlightened patriots who framed our constitution” ... would have most likely found this lawsuit absurd. And if I were deciding this case on a blank slate, I would agree and grant the plaintiffs no relief. But, alas, that is not what we have here.

The court concluded that  ACLU of Georgia v. Rabun County Chamber of Commerce, a 1983 case from the 11th Circuit Court of Appeals involving "this exact issue on virtually identical facts" required it to conclude that the Bayview Cross violates the Establishment clause under the Lemon test. The court concluded:

To be clear: None of this is to say that the cross would have to come down if the City sold or leased the area surrounding it to a private party or non-governmental entity (so long as the transfer was bona fide and not a subterfuge). Nor would there be a constitutional problem with worshipers using a temporary cross for their services in the park.... However, after about 75 years, the Bayview Cross can no longer stand as a permanent fixture on city-owned property.

The American Humanist Association issued a press release on the decision, with links to various pleadings in the case.

Fired Legislative Staffer Can Move Ahead With Suit Alleging Use of State Funds To Promote Church Facility

In Ali v. McClinton, (ED PA, June 14, 2017), a Pennsylvania federal district court refused to dismiss on 11th Amendment grounds a suit against a member of the Pennsylvania House of Representatives in her personal capacity. The court permitted fired constituent services staffer El Shafiyq Asad Ali to move ahead on his 1st Amendment Establishment Clause claim and one of his Pennsylvania Whistleblower Law claims.  Ali alleges that Rep. Joanna McClinton fired him after he objected to McClinton's asking him to organize an event, to be paid for from state funds, at a Philadelphia Housing Authority site. The event was designed to promote a nearby facility that the Open Door Mission True Light Church planned to open.  Rep. McClinton is a minister at the Church.  The court however did dismiss Ali's religious discrimination claims, certain of his Whistleblower Act claims and all of his "official capacity" claims against McClinton and the Pennsylvania House of Representatives.

9th Circuit Hears Oral Arguments On Second Trump Travel Ban Executive Order

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments (video of full arguments) in State of Hawaii v. Trump, (Docket No. 17-15589).  In the case, a Hawaii federal district court issued a nationwide temporary injunction against enforcement of key portions of  President Trump's second "travel ban" Executive Order. (See prior posting.) As reported by the New York Times, at issue in the arguments are whether the Executive Order can be considered a "Muslim ban" that violates the Establishment Clause.

Court Rejects Challenge To State's Use of Religiously Affiliated Child Placement Agency

In In re R.M., (KS Ct. App., May 12, 2017), the Kansas Court of Appeals rejected an argument that the state violated the Establishment Clause by contracting with  Saint Francis Community Services, an Episcopalian organization, to provide childcare services on behalf of the state.  The issue was raised by a mother who was contesting the state's termination of her parental rights to her two children.  The court said in part:

Mother has shown no evidence that Saint Francis encouraged, let alone coerced, her children into participating in religious activities or conditioned their receipt of any benefits on such participation. None of the case plans or court orders contains any reference to religious acts or beliefs or requires Mother or her children to do anything of a religious nature. Mother has not shown anything of a religious nature in the homes her children have been placed in.

Suit Over War Memorial Depicting Cross Is Settled

The American Humanist Association announced on Thursday that a settlement has been reached in  American Humanist Association v. Borough of Roselle Park.  In the case, plaintiffs brought an Establishment Clause challenge to a war memorial on public property depicting a soldier kneeling over a grave marked by a Christian cross. (See prior posting.) The city took down the memorial after the lawsuit was filed.  Under the settlement agreement, the city agreed it will not erect the same display or a similar one in the future.