7th Circuit: Parsonage Allowance Exclusion Is Constitutional

In Gaylor v. Mnuchin, (7th Cir., March 15, 2019), the U.S. 7th Circuit Court of Appeals rejected an Establishment Clause challenge to Internal Revenue Code Sec. 107(2) which excludes from taxable income housing allowances paid to members of the clergy. The court noted that the Treasury Department asserted that "the survival of many congregations hangs in the balance." Applying the Lemon test, as well as the historical significance test, the court said part:

§107(2) is simply one of many per se rules that provide a tax exemption to employees with work-related housing requirements.... Congress’s policy choice to ease the administration of the convenience-of-the-employer doctrine by applying a categorical exclusion is a secular purpose, not “motivated wholly by religious considerations.”

....  The government argues Congress passed § 107(2) because providing the tax exemption only to ministers given in-kind housing tended to exclude ministers of smaller or poorer denominations....  [W]e take the government at its word, which resolves this question. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”

The third secular legislative purpose cited by the Treasury Department is to avoid excessive entanglement with religion. To the government, Congress’s decision to exempt ministers from the proof requirements of § 119(a)(2) prevents the IRS from conducting intrusive inquiries into how religious organizations use their facilities....

[T]he primary effect of § 107(2) is not to advance religion on behalf of the government, but to “allow[] churches to advance religion, which is their very purpose.” ...

FFRF claims § 107(2) renders unto God that which is Caesar’s. But this tax provision falls into the play between the joints of the Free Exercise Clause and the Establishment Clause: neither commanded by the former, nor proscribed by the latter. We conclude § 107(2) is constitutional.

Milwaukee Journal Sentinel reports on the decision.

Suit Challenges Washington State's Required Abortion Coverage

Last week, a church in Washington state filed suit in federal district court challenging the constitutionality of Washington Senate Bill 6219 signed into law last March which requires all health care plans in the state to cover contraceptives and sterilization, and to cover abortion to the same extent as they cover maternity care.  The complaint (full text) in Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, filed 3/8/2019), alleges in part:

52. ... [T]his law targets organizations that have religious and moral beliefs against abortion. Washington State has a history of targeting religious and moral pro-life organizations and individuals.

53. The strong statutory language, lack of any church exception, and anticipated evidence that pro-abortion groups assisted in drafting and enacting SB 6219, indicates that Washington and its officials deliberately targeted religious organizations and intentionally violated those organizations’ religious beliefs.

The suit alleges violations of the Free Exercise, Equal Protection and Establishment Clauses. ADF issued a press release announcing the filing of the lawsuit.

Challenge To Treatment of Hinduism In California Curriculum Fails

In California Parents for the Equalization of Educational Materials v. Torlakson, (ND CA, Feb. 28, 2019), a California federal district court dismissed the claim that California public schools' History-Social Science Content Standards adopted in 1998 and its History-Social Science Framework adopted in 2016 violate the Establishment Clause by demonstrating hostility toward Hinduism.  Plaintiffs contended that the discussion of Hinduism only from a secular perspective, over-emphasis on the caste system, adoption of the Aryan Invasion Theory and the description of Hinduism's treatment of women all denigrate Hinduism. They also object to the input of SAFG, a group of academics who they describe as anti-Hindu. The court concluded however:

[E]ven if there is some evidence by which a reasonable person could infer a disapproval of Hindu religious beliefs—an excessive discussion of caste, for example, or a failure to be fully transparent about coordination with SAFG—that is not enough to conclude that the primary message of the Standards and Framework is disparagement.

Courthouse News Service reports on the decision.

Missouri Bill Would Bar Anonymous Plaintiffs In Church-State Cases

Friendly Atheist reports on an interesting bill that has been introduced in the Missouri legislature.  House Bill 728 (full text) provides:

Except if the party in interest is a minor, in any action involving the separation of church and state, such action shall be prosecuted in the name of the real party in interest.

If enacted, the bill would prevent "John Doe" or "Jane Doe" plaintiffs in Establishment Clause challenges in state courts where the plaintiff is an adult. Suits are often filed under such pseudonyms when the plaintiff fears harassment from those who disagree with his or her position. A hearing has been held in the House on the bill, but it is not yet calendared for a vote.

Supreme Court Will Hear Oral Arguments Today In Bladensburg Cross Case

This morning the U.S. Supreme Court will hear oral arguments in American Legion v. American Humanist Association.  In the case, the U.S. 4th Circuit Court of Appeal, in a 2-1 decision, held that the 40-foot high Bladensburg Cross that has stood for over 90 years as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) The Circuit Court, by a vote of 8-6, then denied en banc review. (See prior posting). Some 47 amicus briefs have been filed in the case. Here is the SCOTUS blog case page for the case, with links to the briefs, other filings and commentary.  I will post the full transcript of today's oral arguments when it becomes available, probably this afternoon.

Suit Challenges Religious Requirements Permitted In South Carolina Faith-Based Foster-Care Agencies

A lawsuit was filed Friday by Americans United for Separation of Church and State on behalf of a Catholic woman challenging actions by the federal government and the state of South Carolina that permit foster-care placement agencies to use religious criteria for approval of foster care families.  The complaint (full text) in Maddonna v. U.S. Department of Health and Human Services, (D SC, filed 2/15/2019) challenges the waiver from the religious discrimination ban in federally funded foster-care programs that the Department of Health and Human Services granted to the state of South Carolina last month. (See prior posting.) It also challenges a March 13, 2018 executive order by the Governor of South Carolina (Executive Order 2018-12) permitting licensed faith-based foster-care child-placement agencies to limit recruitment and training of foster parents to those who share the same faith as the agency. Plaintiff in the case, Aimee Maddonna, was refused participation in a foster care volunteer program by Miracle Hill Ministries because Miracle Hill required participants to be born-again Christians who belong to a Protestant church. The suit alleges Establishment Clause, equal protection and due process violations. AP reports on the lawsuit.

Curriculum On Muslim World Does Not Violate 1st Amendment

In Wood v, Arnold, (4th Cir., Feb. 11, 2019), the U.S. 4th Circuit Court of Appeals rejected a high school student's Establishment Clause and free speech challenges to portions of classroom unit on The Muslim World.  One challenge was to the teacher's Power Point slide that 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.  The court said in part:

The use of both the comparative faith statement and the shahada assignment in Wood’s world history class involved no more than having the class read, discuss, and think about Islam. The comparative faith statement appeared on a slide under the heading “Peaceful Islam v. Radical Fundamental Islam.” The slide itself did not advocate any belief system but instead focused on the development of Islamic fundamentalism as a political force. And the shahada assignment appeared on the student worksheet under the heading “Beliefs and Practices: The Five Pillars.” Thus, the assignment asked the students to identify the tenets of Islam, but did not suggest that a student should adopt those beliefs as her own. 

Rejecting the student's compelled speech argument, the court said in part:

[T]he shahada assignment required Wood to write only two words of the shahada as an academic exercise to demonstrate her understanding of the world history curriculum. On these facts, we conclude that Wood’s First Amendment right against compelled speech was not violated.

[Thanks to Will Esser via Religionlaw for the lead.] 

11th Circuit Grants Stay of Execution To Muslim Inmate Whose Imam Would Be Excluded From Execution Chamber

In Ray v. Commissioner, Alabama Department of Corrections, (11th Cir., Feb. 6. 2019), the U.S. 11th Circuit Court of Appeals granted an emergency stay of execution to a Muslim inmate on death row whose request to have his Imam with him during his execution by lethal injection was denied by prison authorities.  Prison rules call for the prison chaplain-- a Christian-- to be in the execution chamber, but allow his Imam to be only in the adjoining witness room. The prison was willing to waive the requirement for the Christian chaplain to be present, but was not willing to allow his Imam to be in the chamber.  The appeals court concluded that this amounts to an Establishment Clause violation, saying in part:

The central constitutional problem here is that the state has regularly placed a Christian cleric in the execution room to minister to the needs of Christian inmates, but has refused to provide the same benefit to a devout Muslim and all other non-Christians.

Alabama appears to have set up “precisely the sort of denominational preference that the Framers of the First Amendment forbade.”

The court went on:

We acknowledge again that we owe deference to the state’s assessment of its security requirements, and we are reluctant to substitute our judgment for the Commissioner’s.... But we cannot simply rely on the unexplained ipse dixit of the state that there are no less restrictive means in the face of Alabama’s obvious denominational preference. To do so would ignore our constitutional obligations and the unambiguous command of the First Amendment that forbids the state from putting its power, prestige, and support behind one religious belief to the exclusion of all others. It remains the state’s burden to demonstrate that there are no other less restrictive means by which to protect its interests....

The court added:

Ray’s claim may well fit under the rubric of RLUIPA as well, though it seems to us more naturally framed by the Establishment Clause.

AP reports on the decison. [Thanks to Doug Velardo for the lead.] 

Michigan's New AG Withdraws From Amicus Briefs In 8 Controversial Cases

Detroit News reports that Michigan's Democratic Attorney General Dana Nessel who last month replaced Republican Attorney General Bill Schuette has withdrawn Michigan's support of amicus briefs in eight high profile lawsuits. According to the paper:

The state’s newly appointed solicitor general Fadwa Hammoud filed the motions to withdraw from the cases Tuesday, noting in each motion that the amicus briefs filed in support of the cases by Republican former Attorney General Bill Schuette “no longer represents the legal position of the State of Michigan.”...

The four cases related to reproductive rights included litigation challenging a Kentucky law requiring a doctor to perform an ultrasound before an abortion; an Ohio law that criminalized abortions performed because of a fetal indication of Down syndrome; a federal case that required permission from the Office of Refugee Resettlement before an unaccompanied minor could have an abortion at a Texas holding facility; and an Ohio law that banned government funding for Planned Parenthood non-abortion health care programs and education programs because the agency provided abortion services.

Another case that Nessel withdrew from alleged a geriatric management facility in Missouri had discriminated against a gay man when the facility allegedly withdrew an offer of employment....

Three other cases ... were filed by ... Freedom of Religion Foundation. One case challenged the presence of a Latin cross on the Lehigh County, Pennsylvania, seal and flag; another in Wisconsin challenged laws that allowed for income tax exemptions for religious clergy, but not for members of the Freedom of Religion Foundation; and a third challenged the U.S. House chaplain’s unwillingness to allow the co-president of Freedom From Religion Foundation to deliver an invocation on the House floor.

Settlement Filed In Louisiana Religion In Schools Case

Yesterday a settlement agreement was filed with a Louisiana federal district court in Does 1-4 v. Bossier Parish School Board.  In the case (see prior posting), plaintiffs claimed widespread Establishment Clause violations in classrooms at at school events.  As part of the settlement, the school board has adopted a revised religious expression policy.  KTBS News reports that both sides are stressing elements of the settlement that they consider victories:

Americans United said provisions of the settlement include:

• Creation of a monitoring committee to review and resolve potential violations or disputes involving religious freedom.
• An agreement by the School Board to create, expand or seek out appropriate facilities to minimize the need to hold school events in places of worship.
• A commitment to protecting the rights of all Bossier students to pray in school, as long as the prayers are initiated by students, aren’t disruptive and don’t occur during class time.
• Permission for Bossier teachers to teach about religion in an objective manner, but not proselytize students.

The School Board said the agreement also includes the following:

• Students maintain the right to pray at school and at school events.
• Students will be allowed to speak about religion at school events.
• Does not penalize school employees who bow their heads when prayers are offered.
• Allows teachers to teach about religion in an objective manner.
• Allows student clubs of all kinds, including Fellowship of Christian Athletes, to continue to organize, meet and be active on campus.
• Allows students to express their own ideas verbally and to distribute literature.
• Allows employees to wear items of jewelry that include symbols associated with religion

Sundance Features Documentary on Satanic Temple

The Sundance Film Festival begins this Thursday in three Utah locations.  The Daily Mail reviews one of the  documentary films featured at the Festival-- Hail Satan?  The Festival's website describes the film in part as follows:

Just a few years old, the Satanic Temple has risen from the depths to become one of the most controversial religious movements in American history. Hail Satan? bears witness as the temple evolves from a small-scale media stunt to an internationally recognized religion with hundreds of thousands of adherents. Naked bodies writhe with snakes on altars as protesters storm the gates of state capitols across the country. Through their dogged campaign to place a nine-foot, bronze Satanic monument smack dab next to the statue of the Ten Commandments on the Arkansas State Capitol lawn, the leaders of the temple force us to consider the true meaning of the separation of church and state.

School Board Votes To End Appeals of Board Prayer Policy Decision

As previously reported, last month the U.S. 9th Circuit Court of Appeals, over a number of dissenting views, denied en banc review in Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education. In the case, a 3-judge panel applied the Lemon test to strike down a California school board's prayer policy for board meetings. Now, according to the Chino Champion, on Thursday with two new board members voting, the Board voted 3-2 to end all appeals of the decision. One of the new Board members voting with the majority works as a 1st Amendment lawyer.

Establishment Clause Challenge To Drag Queen Storytime Dismissed

In Christopher v. Lawson, (SD TX, Jan. 3, 2018), a Texas federal district court dismissed a lawsuit that claimed the Houston Public Library's "Drag Queen Storytime" violates the Establishment Clause. Plaintiffs claimed that the program promotes secular humanism over other religions, including Christianity,  The court first held that plaintiffs lack standing. Because they avoided the event to protect their children, they suffered no harm.  The court held that they also lack taxpayer standing.  The court went on to find that even if plaintiffs had standing, they failed to show an Establishment Clause violation, saying in part:

Here, the plaintiffs argue that “Drag Queen Storytime” is a religious event because of an alleged connection between “Drag Queen Storytime,” the LGBTQ community, and secular humanism.... [E]ven accepting that secular humanism could be a religion for Establishment Clause purposes, the plaintiffs fail to allege any facts or basis showing that “Drag Queen Storytime” is a religious activity. There is no allegation that a reader discussed secular humanism at the event, or that any story the Library selected invoked secular humanism or any religion at all. The plaintiffs instead make only conclusory statements associating secular humanism with the event.

Houston Chronicle reports on the decision,

9th Circuit Denies En Banc Review In School Board Prayer Case

Yesterday, the U.S. 9th Circuit Court of Appeals denied en banc review in Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, (9th Cir., Dec. 26, 2018). In the case, a 3-judge panel applied the Lemon test to strike down a California school board's prayer policy for board meetings. (See prior posting.)  Seven active judges plus one judge holding senior status who is technically unable to vote on the rehearing petition disagreed with the denial of en banc review.  An opinion by Senior Judge O'Scannlan argued that the case should be governed by the legislative prayer precedents rather than by the Lemon test. An opinion by Judge Nelson argued that even it the Lemon test applies, no Establishment Clause violation was present. The seven dissenting active judges joined all or part of both opinions. San Francisco Chronicle reports on the denial of review.

City Recreation Department Trip To Biblical Museums Cancelled After Objections

Christian Post reports that the Charleston, Illinois parks and recreation department has cancelled a planned town trip to southern Ohio and northern Kentucky that included visits to the Answers in Genesis Creation Museum and Ark Encounter. Freedom From Religion Foundation had complained to the city (full text of letter) that promotion of visits to these museums violates the Establishment Clause because it endorses the religious mission of museum founder Ken Ham.

DOJ Files Statement of Interest In Church's Challenge To Limits On Use of Civic Center

As previously reported, in August a suit was filed in a South Carolina federal district court against Edisto Beach challenging the Town's rule change that prohibits renting space in the town's Civic Center for religious worship services.  Now the lawsuit has attracted the attention of the Justice Department. On Tuesday, DOJ filed a Statement of Interest (full text) in Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, arguing in part:

... [T]he Town’s legally erroneous “concerns” about Establishment Clause liability turn First Amendment jurisprudence on its head: the First Amendment prohibits the content-based and viewpoint-based restrictions on protected speech that the Town seeks to permit and permits religious worship services the equal access to government facilities that the Town seeks to prohibit.

Charleston Post and Courier reports on developments.

Chaplaincy Program of Wisconsin Justice Department Challenged

Suit was filed yesterday in a Wisconsin state trial court challenging the constitutionality of a new Chaplaincy Program for employees and their families created by the Wisconsin Department of Justice. The complaint (full text) in Freedom From Religion Foundation, Inc. v. Schimel, (WI Cir. Ct., filed 11/13/2018),  alleges that six chaplains from across the state have been appointed initially-- all white males from Christian faiths. The program excludes secular mental health professionals. Chaplains operate under the direction of a paid Chaplaincy Program Coordinator. The suit contends that the program violates the U.S. Constitution's Establishment Clause.  FFRF issued a press release announcing the filing of the lawsuit.

Challenge Filed To Texas' Limits On Marriage Celebrants

A suit was filed last week in a Texas federal district court challenging the constitutionality of Texas Family Code Section 2.202 which limits those who can officiate at marriage ceremonies to members of the clergy and various judges.  The complaint (full text) in Center for Inquiry, Inc. v. Warren, (ND TX, filed 11/5/2018) contends that the failure to allow secular celebrants to perform marriage ceremonies violates the Establishment Clause, the Equal Protection clause and Art. VI's ban on religious tests. Center for Inquiry issued a press release announcing the filing of the lawsuit.

Supreme Court Agrees To Review Bladensburg Cross Case

The U.S. Supreme Court yesterday granted certiorari in two appeals stemming from the same 4th Circuit opinion. The petitions for review were granted in American Legion v. American Humanist Association (Docket No. 17-1717) and Maryland-National Capital Park and Planning Commission v. American Humanist Association (Docket No.  18-18). (Cert. granted, 11/2/2018). (Order List). In the case, the U.S. 4th Circuit Court of Appeal, in a 2-1 decision, held that the 40-foot high Bladensburg Cross that has stood for over 90 years as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) The Circuit Court, by a vote of 8-6, then denied en banc review. (See prior posting). Here is the SCOTUS blog case page for the cases, with links to filings in the case.  WTOP News reports on the grant of review.

Oral Arguments In 7th Circuit Challenge To Parsonage Allowance

Yesterday the U.S. 7th Circuit Court of Appeals heard oral arguments in Gaylor v. Peecher. (Audio recording of full oral arguments.) In the case, a Wisconsin federal district court held that the parsonage allowance provision in Sec. 107(2) of the Internal Revenue Code violates the Establishment Clause. (See prior posting.)  Courthouse News Service reports on the oral arguments.