9th Circuit Hears Oral Arguments In Case of High School Coach Who Prayed At 50-Yard Line

Earlier this week (Jan. 25), the U.S. 9th Circuit Court of Appeals heard oral arguments in Kennedy v. Bremerton School District. (Audio, Video of full oral arguments.) In the case, 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 concluded that his prayer amounted to endorsement of religion by the school district in violation of the Establishment Clause. (See prior posting.) First Liberty issued a press release on Monday's oral argument.

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.

Suit Challenges Trump Administration's Loosening of Limits On Faith-Based Federally Funded Programs

Suit was filed this week in a New York federal district court by seven advocacy groups challenging the Trump Administration's loosening of restrictions on faith-based organizations' operation of programs and activities funded by federal grants. The complaint (full text) in MAZON: A Jewish Response to Hunger v. Azar, (SD NY, filed 1/19/2021) alleges in part:

Because the Agencies provide no reasonable justification for the rule change, because they fail to account for the harms caused by the 2020 Rule, because their reasoning is inconsistent and contrary to the record, and because they fail to consider obvious alternatives, the 2020 Rule is arbitrary and capricious in violation of the APA.

The complaint explains the challenged rule as follows:

The 2020 Rule eliminates the common-sense and agreed-upon requirements from the 2016 Rule, such as that beneficiaries receiving services from a faith-based provider receive a notice of their rights not to be discriminated against based on religion and the option to request a referral to an alternate provider. These requirements imposed virtually no burden, but provided beneficiaries with much-needed information empowering them to protect their own religious liberty.

The 2016 rule reflected a consensus proposal of a number of different interest groups. American Atheists issued a press release announcing the filing of the lawsuit.

American Atheists Release Report On 2020 Legal Developments

Yesterday, American Atheists released a report titled 2020 State of the Secular States (full text). Assessing last year's developments, the 88-page report says in part:

Although state legislation did not significantly impact religious equality in 2020, that same cannot be said for the courts. We saw fundamental changes to the law of church-state separation in the courts this year, most of it extremely negative from a separationist perspective. The U.S. Supreme Court all but struck down the numerous state constitutional protections that limit the flow of public money to religious private schools, while at the same time greatly expanding the ability of religious organizations to evade nondiscrimination protections. And the lower courts granted exemption after exemption to religious organizations, allowing them to meet even in defiance of emergency restrictions by state governors, even at risk to public health.

The report describes its approach to analyzing last year's developments:

This report identifies four categories of public policy in each state that affect religious equality: Constitutional & Nondiscrimination Protections, Education & Youth, Health Care & Wellness, and Special Privileges for Religion. We assess nearly 50 related law and policy measures in each state as well as Puerto Rico and the District of Columbia. The states have been grouped into three broad categories, but they have not been individually ranked.

Court Denies Preliminary Injunction Against Nativity Scene

In Lamunion v. Fulton County, Indiana, (ND IN, Nov. 25, 2020), an Indiana federal district court refused to grant a preliminary injunction against a nativity display on the Fulton County courthouse lawn. The court explained:

[I]n 2018, [plaintiff] sued Fulton County, seeking declaratory and injunctive relief against the display. He did not seek preliminary injunctive relief when he filed his complaint, or during the next holiday season. Recently, however, almost two years after filing his complaint, he moved for a preliminary injunction prohibiting the county from erecting the display this year....

[P]laintiff contends that the display’s constitutionality would depend on a fact-intensive, totality-of-the-circumstances inquiry from the viewpoint of a reasonable observer. But the Court has only a couple snapshots of the display to consider. It is difficult from those few pictures to understand the context of the display and the way it would appear to a reasonable observer.... 

Resolving those difficult issues, while also giving due respect to the public’s interest and the sincere and deeply held convictions on both sides, requires a degree of care and deliberation simply not possible in the mere days the plaintiff has given the Court to rule.... The plaintiff asks this Court to pass judgment on a fifty-plus year old display in the span of a few days.... [E]ven assuming the plaintiff has established at least the minimum likelihood of success, the Court could not find that a preliminary injunction is warranted when weighing the preliminary injunction factors as a whole.

10th Circuit Dismisses Objections To Attempted Search of Church

 In Aguilera v. City of Colorado Springs, (10th Cir., Nov. 18, 2020), the U.S. 10th Circuit Court of Appeals affirmed the dismissal of a civil rights claim brought by the High Priestess/ Property Manager of Green Faith Ministry who objected to an attempt by a police officer and fire marshals to inspect the ministry's building. Officers apparently suspected marijuana usage or occupancy standard violations. The court rejected plaintiff's complaint that one officer told her to "praise the Lord." The court said in part:

Aguilera’s amended complaint does not allege facts indicating that an objective observer would view Officer Vargason’s purpose in saying “Praise the Lord” as an official endorsement of religion.

The court also rejected plaintiff's free exercise claim, concluding:

Aguilera has failed to allege that any defendant burdened her exercise of religious beliefs or practices.

7th Circuit Stays, Pending Appeal, Injunction Against Creche On County Property

 As the holiday season approaches, the U.S. 7th Circuit Court of Appeals by a vote of 2-1 in Woodring v. Jackson County, Indiana, (7th Cir., Nov. 17, 2020), granted a stay pending appeal of a district court order barring the display of a creche on the historical county courthouse-- now county office building-- lawn. The appeal on the merits in the case was argued before the 7th Circuit last week. (See prior posting.) Judge dissented, saying:

The relief granted by the stay violates the Establishment Clause. The dominant religious content of the display communicates to a reasonable observer a governmental endorsement of Christianity, a matter as to which governments must remain neutral. In addition, the county waited so long to seek this stay that it cannot plausibly claim it needs emergency relief.

Liberty Counsel issued a press release (including a photo of the display) announcing the grant of the stay.

New Jersey School's Presentation of Islam Did Not Violate Establishment Clause

 In Hilsenrath v. School District of the Chathams, (D NJ, Nov. 12, 2020), a New Jersey federal district court held that the 7th grade World Cultures and Geography course presentation of material about Islam did not violate the Establishment Clause.  The court held that a nominal damages claim is sufficient to give plaintiff standing to challenge the course material. The court said in part:

Here, the World Cultures course includes similar units on, for example, Hinduism and Buddhism, in which students watch videos on those religions to understand their tenets and practices.... A reasonable observer would not perceive an endorsement of Islam when the course also presented other religions in a similar manner. Further, Islam is introduced as part of a unit on the Middle East and North Africa in a course covering geography and world cultures, so it is presented in conjunction with nonreligious material about a region of the world....

This case falls into the category of those in which schools permissibly asked students to “read, discuss, and think” about a religion.

TAPinto reports on the decision.

7th Circuit Hears Oral Arguments In Creche Case

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in Woodring v. Jackson County, Indiana. (Audio of full oral arguments.) In the case, an Indiana federal district court refused to dismiss an Establishment Clause challenge to a nativity scene that is placed on the Jackson County courthouse lawn each December. (See prior posting).  Courthouse News Service reports on yesterday's oral arguments.

Certiorari Denied In Challenge To "So Help Me God" In Citizenship Oath

 Yesterday the United States Supreme Court denied review in Perrier-Bilbo v. United States, (Docket No. 20-349, certiorari denied 11/9/2020). (Order List.) In the case, 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. (See prior posting.)  Friendly Atheist reports on the Supreme Court's action.

Slam Poetry Book In Curriculum Upheld

In Coble v. Lake Norman Charter School, Inc., (WD NC, Nov. 6, 2020), a North Carolina federal district court refused to issue a temporary restraining order to prevent a public charter school from including The Poet X in its ninth-grade language arts curriculum. Plaintiffs claim that inclusion of the book violates the Establishment Clause as well as their free exercise rights. The court said in part:

The sincerity of Plaintiffs’ religious objections to The Poet X is not disputed, nor is the fact that the book deeply offends Plaintiffs. Even accepting, however, that the work is antithetical to the particular Christian beliefs espoused by Plaintiffs, its inclusion in the high school curriculum alone does not violate the Establishment Clause...

The issue is not whether The Poet X embodies anti-Christian elements; the Court assumes that it does. Instead, the issue is whether its selection and retention by school officials “communicat[es] a message of government endorsement” of those elements....

Similarly, inclusion of The Poet X as representative of a particular literary genre (slam poetry / verse novel) neither religiously inhibits nor instills, but simply informs and educates, students on a particular social outlook forged in the crucible of Afro-Latinx urban life. To include the work in the curriculum, without further evidence of the school’s endorsement, no more communicates governmental endorsement of the author’s or characters’ religious views than to assign Paradise Lost, Pilgrim’s Progress, or The Divine Comedy conveys endorsement or approval of Milton’s, Bunyan’s, or Dante’s Christianity....

Suit Against Trump For Misleading Christians Is Dismissed For Lack of Standing

In Kelly v. Trump, (Del. Chancery, Nov. 2, 2020), a Delaware Chancery Court Master recommended dismissing as legally frivolous a suit against President Donald Trump alleging that he violated plaintiff's free exercise and Establishment Clause rights. The court said that plaintiff "has not shown an actual or concrete injury to her caused by Trump’s conduct....  Her contentions are too remote and vague to be actionable."  The court described plaintiff's allegations in part as follows:

Kelly’s main theory of her case is that Trump creates the illusion of being a devout Christian, while engaging in acts that Kelly contends are against the main tenets of Christianity. She claims that his actions substantially burden and injure her “free exercise of religion”... by [his] increased threat of government sponsored religious persecution.... Kelly alleges that ... he is misleading people, deceiving them to sin, and dooming them to hell. The primary harm Kelly claims is that, because Trump is leading people to hell, Kelly will not be able to love them for eternity. She also alleges that she is persecuted ... because of Trump’s support for one religious belief, and suppression of others....

Court Refuses Stay of Order On Creche Display

In Woodring v. Jackson County, Indiana, (SD IN, Nov. 3, 2020), an Indiana federal district court refused to stay its final judgment pending appeal in a case challenging the annual display of a creche on the county courthouse lawn.  The court said in part:

Because the crèche straddles the sidewalk subdividing the lawn and the more-secular figures are placed on the periphery, the venerable magi and hallowed manger share center stage. Id. Since the primary focus of the display is a celebration of the birth of Jesus Christ, a reasonable observer would believe that Jackson County was endorsing a particular religion, that is, Christianity. Id. Moreover, the display—which had consisted solely of the Nativity scene for almost twenty years—expanded to include the secular Christmas figures only after Jackson County received a letter from the Freedom from Religion Foundation questioning whether the display was constitutional.... A reasonable observer aware of this "history and context" would view the addition of the ancillary figures as a reactionary effort to obscure the display's religious essence.

(See prior related posting.)

1st Circuit Upholds Maine's Exclusion of Sectarian Schools From Tuition Reimbursement

In Carson v. Makin, (1st Cir., Oct. 29, 2020), the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that pay tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Plaintiffs challenge this, particularly in light of the U.S. Supreme Court's Trinity Lutheran and Espinoza decisions. The court distinguished Supreme Court precedent as follows:

Accordingly, we proceed on the understanding that this restriction, unlike the one at issue in Espinoza, does not bar schools from receiving funding simply based on their religious identity -- a status that in and of itself does not determine how a school would use the funds that it receives to provide educational instruction.... Instead, we understand this restriction to bar BCS and TA from receiving the funding based on the religious use that they would make of it in instructing children in the tuition assistance program....

The difficulty Maine confronts is that many of its localities cannot feasibly provide the benefits of that free public education directly to their residents. Thus, Maine has had to adapt to that reality. In doing so, it has chosen to provide -- while still ensuring that any parent in Maine may send their child to a religious school at their own expense -- tuition assistance for those children who live in localities that operate no public secondary school of their own to attend a private school that will provide a substitute for what they cannot get from the government. 

In conditioning the availability of that assistance on the requirement that recipients use it for educational instruction that is as nonsectarian in content as the free public education that is not directly available to them, Maine transgresses neither the Free Exercise Clause nor the Establishment Clause, nor any of the other provisions of the federal Constitution that the plaintiffs invoke.

Courthouse News Service reports on the decision.

Suit Challenges Missionaries Class In Oklahoma Elementary School

 Suit was filed in an Oklahoma federal district court this week by secular humanists who object to an Oklahoma elementary school's "Missionaries" program which brings Christian missionaries into the school as part of the regular curriculum for students in pre-K through 8th grade. Students are not permitted to opt out of the class. The complaint (full text) in American Humanist Association, Inc. v. Elementary School District No. 22 of Adair County Oklahoma, (ED OK, filed 10/27/2020) alleges that the practice violates the Establishment Clause. American Humanist Association issued a press release announcing the filing of the lawsuit. [Thanks to Friendly Atheist via Mel Kaufman for the lead.]

Jail's "God-Pod" Program Violates Establishment Clause

 In Young v. Newton, (ED VA, Oct. 16, 2020), a Virginia federal district court, while rejecting a number of claims by Muslim inmates, held that the Riverside Regional Jail Authority (along with its superintendent and the program chaplain) violated the Establishment Clause when they created the Christian-based Life Learning Program (known as the "God Pod"). Participating inmates lived in a separate pod and had access to a microwave and initially were able to single-bunk. The court said in part:

The LLP was unquestionably based on Christian principles and the Bible, which ... is a Christian book. The administration of that program demonstrated a preference for Christianity over other religions and extended benefits to those who subscribed to that preference. Any secular purpose of the LLP, such as to teach skills related to intellectual, emotional, spiritual, relational, occupational, and financial success, was pursued through religious, specifically Christian, teachings, which had the primary effect of advancing Christianity at the Riverside Regional Jail.

CAIR issued a press release announcing the decision.

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.

6th Circuit: Settlement In Long-Running Baptist Children's Home Case Is Unenforceable

In Pedreira v. Sunrise Children's Services, Inc., (6th Cir., Sept. 2, 2020), the U.S. 6th Circuit Court of Appeals, in an Establishment Clause case that has been in litigation for 20 years, held that a proposed modified consent decree that was to settle the case is unenforceable. The case involves a challenge to the state of Kentucky's funding of treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization. (See prior related posting.) The 6th Circuit agreed with the district court that the consent decree violates Kentucky law because it requires enactment of new or modified administrative regulations to be implemented.

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.

Islamic Terrorism Unit In Course Does Not Violate 1st Amendment

In Sabra v. Maricopa County Community College District, (D AZ, Aug. 18, 2020), an Arizona federal district court dismissed a suit challenging the manner in which a community college faculty member taught a portion of a World Politics course. Plaintiffs contend that the instructor's primary message in teaching the Islamic Terrorism module of the course was disapproval of Islam.The court rejected both Establishment Clause and Free exercise challenges, saying in part:

Examining the course as a whole, a reasonable, objective observer would conclude that the teaching’s primary purpose was not the inhibition of religion. The offending component was only a part of one-sixth of the course and taught in the context of explaining terrorism. One aspect of terrorism is Islamic terrorism. Only in picking select quotes from the course can one describe the module as anti-Islam.... [T]he primary effect of Dr. Damask’s course is not the inhibition of the practice of Islam. Therefore, the Plaintiffs’ Establishment Clause claims must be dismissed....

Mr. Sabra was not required to adopt the views expressed by Dr. Damask or the authors Dr. Damask cited to in his course, but only to demonstrate an understanding of the material taught. Dr. Damask’s course did not inhibit Mr. Sabra’s personal worship in any way. Instead, Mr. Sabra was simply exposed to “attitudes and outlooks at odds” with his own religious perspective.... Therefore, as a matter of law, the Court finds that the Plaintiff’s allegations do not amount to a violation of the Free Exercise Clause by the Defendants....

[Thanks to Volokh Conspiracy for the lead.]