HHS Grants to Catholic Bishops Conference Upheld

In ACLU of Northern California v. Azar, (ND CA, Oct. 11, 2018), a California federal district court granted summary judgment to the government in the ACLU's Establishment Clause challenge to HHS's choice of the U.S. Conference of Catholic Bishops as a grantee under the Unaccompanied Alien Children Program  (UACP) and the Trafficking Victim Assistance Program (TVAP).  The ACLU focused particularly on the refusal of sub-grantees to directly refer clients for abortion or contraception services. However children in custody in UACP who sought an abortion were transferred to a secular provider that did not have objections, and to an independent medical provider when contraception services were sought. The Bishops' Conference ultimately removed language from its documents that would have prevented TVAP sub-grantees from providing abortion or contraception services. The court held in part:

The government’s grant relationship and interactions with the Bishops Conference in the record in this litigation are not sufficiently likely to be perceived as an endorsement of the Conference’s religious beliefs....

The record here shows that the government’s UACP and TVAP grant money was used to provide general secular care services to unaccompanied minors and that no government money was used for proselytization, religious education, religious facilities, religious items, religious literature, or other religious activity. There is no evidence that the ACLU, or any taxpayer, was forced to monetarily subsidize the Bishops Conference’s religious beliefs. To the extent that the Conference declined to provide unaccompanied minors with access to abortion or contraception services, it did not use any government tax money to do so, and thus its actions are not properly the subject of a taxpayer-standing suit.

Suit Challenges IRS Church Exemption From Filing Form 990

A lawsuit was filed yesterday in D.C. federal district court challenging the exemption for churches from filing annual Form 990 with the Internal Revenue Service.  The exemption is set out in Internal Revenue Code Sec. 6033(a)(3). The complaint (full text) in Nonbelief Relief, Inc. v. Kauter, (D DC, filed 10/11/2018), contends that:

The information return exemption given to churches and other religious organizations constitutes discrimination on the basis of religion in violation of the Establishment Clause.

The suit was filed by a nonprofit organization set up by the Executive Board
of the Freedom From Religion Foundation for nonbelievers to use to channel contributions for relieving human suffering and injustice on a global scale, whether from natural disasters, human actions or adherence to religious dogma. The organization's non-profit status was suspended for its failure to file Form 990 for 3 years. FFRF issued a press release announcing the filing of the lawsuit.

7th Circuit Upholds Wisconsin's Limit on Busing Benefit To One School of Each Denomination In District

In St. Augustine School v. Evers, (7th Cir., Oct. 11, 2018), the U.S. 7th Circuit Court of Appeals, in a 2-1- decision, upheld Wisconsin's statue which requires school districts to bus private school students, but limits the obligation to only one private school affiliated with the same religious denomination or sponsoring group in each attendance district. St. Augustine school did not qualify for busing because another Catholic school in the district qualified first. The majority rejected free exercise and Establishment Clause challenges to the arrangement, saying in part:

The reason why St. Augustine cannot demand services within its desired attendance zone is not because it is a Catholic school; it is because—by its own choice—it professes to be affiliated with a group that already has a school in that zone.  By the same token, Wisconsin is not denying the Forros a transit subsidy because they are Catholic or because they seek to send their children to Catholic school. It funds transportation for all of the Catholic families who send their children to St. Gabriel. The problem for St. Augustine is not that it is Catholic; it is that it is second in line.

Judge Ripple dissented arguing that St. Augustine and St. Gabriel should not be seen as affiliated with the same denomination because St. Augustine is organizationally unaffiliated with the Catholic Archdiocese.

Alaska Borough's Invocation Policy Held Unconstitutional

KBBI News reports that an Alaska state trial court judge yesterday in Hunt v. Kenai Peninsula Borough (complaint) held that the Kenai Peninsula Borough's invocation policy violates the Establishment Clause of the Alaska Constitution.  The Borough implemented a policy that allows only representatives of pre-approved religious organizations to offer invocations at meetings of the Kenai Peninsula Borough Assembly. The move came after a member of the Satanic Temple offered an invocation that ended with "Hail Satan."

ERISA Church Plan Exemption Held Constitutional

In Smith v. OSF Healthcare System, (SD IL, Sept. 28, 2018), an Illinois federal district court held that the retirement plan for employees of a healthcare system created by the order of St. Francis qualifies as an exempt "church plan" under ERISA. The court went on to conclude that ERISA's church plan exemption does not violate the Establishment Clause, saying in part:

Rather than entangling the government in the affairs of religious organizations, the church plan exemption avoids the entanglement. In other words, by exempting eligible plans from ERISA requirements, religious organizations and their associated entities are relieved from government mandates about how they conduct their affairs, structure their finances and pursue their missions.

"So Help Me God" In Citizenship Oath Upheld

In Perrier-Bilbo v. United States, (D MA, Sept. 28, 2018), a Massachusetts federal district court rejected a challenge to the inclusion of the phrase "so help me God" at the end of the oath of allegiance taken by those becoming citizens of the United States.  Rejecting an Establishment Clause claim, the court said in part:

Like the ceremonial prayer in Town of Greece, the inclusion of "so help me God" in the oath of citizenship "is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs." ... The regulation providing for the phrase's inclusion in the naturalization oath does not violate the Establishment Clause.

The court also rejected free exercise, RFRA, equal protection and due process challenges.  According to the court:

United States Citizenship and Immigration Services ("USCIS") offered her a private induction which would omit the words she finds offensive. Not surprisingly, she wishes to participate in the public ceremony with other new citizens and their families and friends. USCIS welcomed her at such a ceremony, assuring her she need not herself say those four words and her oath of allegiance and United States citizenship would nonetheless be fully valid.

No Preliminary Injunction Against Schools' Anti-Islamophobia Initiative

In Citizens for Quality Education San Diego v. Barrera, (SD CA, Sept. 25, 2018), a California federal district court refused to issue a preliminary injunction against an initiative undertaken by the San Diego school district to address Islamophobia and anti-Muslim bullying. The court held that plaintiffs are unlikely to succeed on the merits of their Establishment Clause and state constitutional no-aid clause claims. San Diego Union Tribune reports on the decision.

Congressman Claims Advocacy Groups Are Spying On Christian School Groups In Louisiana

As a lawsuit against the  Bossier Parish, Louisiana school board alleging widespread Establishment Clause violations continues, Louisiana congressman Mike Johnson this week posted the following warning on his campaign/personal Facebook page:

WARNING TO OUR FRIENDS IN BOSSIER SCHOOLS (Please share):

Last night we received very credible information that atheist litigation groups in CA have contacted private investigators in our area to try to hire them to obtain hidden video of Christian student groups and activities at Benton High School and potentially other Bossier Parish schools.

Unfortunately, this is to be expected now that these groups perceive the Bossier Parish School District as an ATM machine for attorney fee awards in what they believe will be easy Establishment Clause lawsuits. They are wrong, as our district is following the law--even as we fight vigorously to defend religious freedom. Sadly, Bossier schools will have to endure this legal harassment from the atheist groups for a while now, so everyone needs to be prepared.

According to an AP report, Americans United for Separation of Church and State says it has not hired private investigators, and the school district's attorney says he has no first hand knowledge of this kind of activity.

Suit Argues Drag Queen Story Time Violates Establishment Clause

KADN News reported yesterday on a lawsuit filed in federal district court in Louisiana by two religious groups-- Warriors for Christ and Special Forces of Liberty-- seeking to stop Drag Queen Story Time at the Lafayette, Louisiana public library.  The lawsuit argues that the program endorses secular humanism. According to a report last month by the Acadiana Advocate:

Drag Queen Story Time entails a group of male University of Louisiana at Lafayette students reading books to young children while dressed in women’s clothing. Library staff will select the books, which are to be appropriate for children ages three to six. It is scheduled for Oct. 6 at the main branch downtown.

The attorney filing the lawsuit for the religious groups is Christophe Sevier, who has filed numerous suits around the country contending that homosexuality is a "religion." (See prior posting).  Commenting on the Louisiana lawsuit, Sevier said:

The evidence would suggest that the self identified transgendered. They are using a government facility to show that the governments backs their worldview to then target children, to indoctrinate them under a faith based ideology.

Cert. Petition Filed In Case On Cross In Public Park

A petition for certiorari was filed with the U.S. Supreme Court yesterday in City of Pensacola, Florida v. Kondrat'yev. In the case a 3-judge panel of the 11th Circuit Court of Appeals, feeling bound by prior 11th Circuit and Supreme Court precedent, affirmed a Florida district court's Establishment Clause decision ordering Pensacola to remove a 34-foot Latin cross from a public park. (See prior posting). Becket issued a press release announcing the filing of the petition for review.

11th Circuit Affirms Order To Remove Cross From Park, But Expresses Disagreement With Precedent

In Kondrat'Yev v. City of Pensacola, (11th Cir., Sept. 7, 2018), a 3-judge panel of the 11th Circuit Court of Appeals, feeling bound by prior 11th Circuit and Supreme Court precedent, affirmed a Florida district court's Establishment Clause decision ordering Pensacola to remove a 34-foot Latin cross from a public park. Two judges each wrote lengthy concurring opinions explaining their disagreement with existing precedent. One of those judges, District Judge C. Ashley Royal sitting by designation on the case, wrote a 53-page concurrence that includes a long history of religious establishments.  Here is an excerpt from Judge Royal's interesting opinion:

[T]he history of the idea of the religious conscience was central to the history of religious freedom in early America and in Europe. But religious conscience was not understood as separate from religious action. It was not simply some psychological phenomenon or something that you had on your mind. Protestants and Catholics did not fight the Wars of Religion for almost 100 years because some religious image made them feel uncomfortable, unwelcome, or uneasy. Furthermore, in the 16th, 17th, and 18th centuries, men and women were not burned at the stake, beheaded, hung, flogged, banished, jailed, beaten, taxed, had their ears cropped, or were divested of their property or their rights as citizens because of their state of mind. It was because of their actions and because their actions arose out of their religious convictions. To counter dissidents’ religious actions, churches and governments imposed penalties, and that is what the Establishment Clause was designed to protect against. 

You can listen to this march of horrors, abuse, cruelty, and death and recognize that it was not a walk in the park. And despite the fact that I am careful to avoid trite statements in my orders, all this case is about is a walk in the park.... Some courts have lost sight of why so many fought for so long at such great cost for religious freedom. It was not to protect people from looking at crosses in public parks. That demeans and debases the sacrifices of millions of people....

3rd Circuit Hears Arguments On Cross In County Seal

Yesterday, the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Freedom From Religion Foundation v. County of Lehigh.  In the case, a Pennsylvania federal district court reluctantly 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.  Daily Journal reports on the oral arguments.

Group Lacks Standing To Challenge Charter School Act On Establishment Clause Grounds

In Indiana Coalition for Public Education v. McCormick, (SD IN, Sept. 6, 2018), an Indiana federal district court dismissed on standing grounds a suit by an advocacy organization challenging on Establishment Clause grounds Indiana's Charter School Act. Plaintiff claims that it is unconstitutional for the state to allow a religious college to be an authorizer for public charter schools.  The court said in part:

The Coalition’s Complaint is really a challenge to Indiana’s policies of school choice and of school funding following the student, draped in the clothing of an Establishment Clause challenge. But the Coalition challenges just one recipient of that funding, and it all but admits that its alleged injuries are in no meaningful way caused by the religious character of Seven Oaks’ authorizer. Rather, it is a mere coincidence that Seven Oaks, with which the public school corporations must compete for students, happens to be authorized by a religious institution. The school corporations would face exactly the same funding difficulties (and thus the Coalition would face the same alleged injury) had Seven Oaks been authorized by a secular private college, as permitted by the Charter School Act, instead of Grace College. These observations confirm the gross misfit between the alleged constitutional injury and the Coalition’s requested relief.

3rd Circuit Will Not Adjudicate Pastor's Breach of Contract Claim

In Lee v. Sixth Mount Zion Baptist Church of Pittsburgh, (3d Cir., Sept. 5, 2018), the U.S. 3rd Circuit Court of Appeals refused to adjudicate a terminated minister's breach of employment contract claim, saying in part:

The Church argues that Lee materially breached the Agreement by failing to provide adequate spiritual leadership, as reflected in decreased church contributions and attendance during Lee’s tenure....

While the amount of church contributions and members is a matter of arithmetic, assessing Lee’s role, if any, in causing decreased giving and reduced membership in the Church requires a determination of what constitutes adequate spiritual leadership and how that translates into donations and attendance—questions that would impermissibly entangle the court in religious governance and doctrine prohibited by the Establishment Clause....

Moreover, parsing the precise reasons for Lee’s termination is akin to determining whether a church’s proffered religious-based reason for discharging a church leader is mere pretext, an inquiry the Supreme Court has explicitly said is forbidden by the First Amendment’s ministerial exception. Hosanna-Tabor....

Becket Fund issued a press release announcing the decision. Pittsburgh Post Gazette reports on the decision.

Homeless People May Not Be Prosecuted For Sleeping Outdoors When Only Option Is Religious Shelter

In Martin v. City of Boise, (9th Cir., Sept. 4, 2018), the U.S. 9th Circuit Court of Appeals held that the ban on cruel and unusual punishment in the 8th Amendment bars a city from criminalizing sleeping outdoors on public property when homeless people have no option to sleep indoors, including where their access to a shelter is conditioned on their participating in religious programs.  Two of the city's three shelters are run by Christian organizations.  The court concluded that

River of Life permits individuals to remain at the shelter after 17 days in the Emergency Services Program only on the condition that they become part of the New Life Discipleship program, which has a mandatory religious focus.... There are also facts in dispute concerning whether the Emergency Services Program itself has a religious component....  A city cannot, via the threat of prosecution, coerce an individual to attend religion-based treatment programs consistently with the Establishment Clause of the First Amendment.... Yet at the conclusion of a 17-day stay at River of Life, or a 30-day stay at City Light, an individual may be forced to choose between sleeping outside on nights when Sanctuary is full (and risking arrest under the ordinances), or enrolling in BRM programming that is antithetical to his or her religious beliefs.

AP reports on the decision.

Court Will Not Order Group's Christian Flag Displayed On City Flag Pole

In Shurtleff v. City of Boston, (D MA, Aug. 29, 2018), a Massachusetts federal district court refused to grant a preliminary injunction against the city's policy of refusing to fly non-secular flags from City Hall flagpoles.  Plaintiffs sought to fly a "Christian flag” from the city's pole in conjunction with a Constitution Day and Citizenship Day event.  Rejecting plaintiffs' free speech argument, the court said in part:

If the flags are government speech, as Defendants assert, “then the Free Speech Clause has no application” and the City may “select the views that it wants to express.” ... In contrast, if the flags are private speech displayed in a limited public forum, as Plaintiffs argue, the restriction on non-secular flags must be reasonable and viewpoint neutral.... This Court concludes that the selection and display of the flags on the City flagpole constitute government speech. Moreover, even if they did not constitute government speech, the Court finds that the City’s restriction on non-secular flags satisfies the constitutional requirements for limitations on speech in a limited public forum....

The City’s policy is ... reasonable based on the City’s interest in avoiding the appearance of endorsing a particular religion and a consequential violation of the Establishment Clause.... Moreover, ... [in suggesting] the opportunity to conduct their event on City Hall Plaza, fly a secular flag on the City flagpole or display the Christian flag on City Hall Plaza but not on the City flagpole, the City has demonstrated reasonableness and that it does not seek to silence Plaintiffs. 

The court also rejected Establishment Clause and Equal Protection challenges. Boston Globe reports on the decision.

8th Circuit: Satanic Temple Member Lacks Standing To Challenge Abortion Restrictions

In Satanic Temple v. Parson, (8th Cir., Aug. 28, 2018), the U.S. 8th Circuit Court of Appeals affirmed the dismissal (see prior posting) of a challenge to Missouri's abortion restrictions. The court said in part:

Mary Doe is a member of The Satanic Temple and a resident of the state of Missouri. After becoming pregnant, she sought an abortion in St. Louis, Missouri. She complied with certain state-mandated procedures, which the complaint alleges constituted direct and unwelcome personal contact with religion, in violation of the Free Exercise and Establishment Clauses. After receiving the abortion, she filed this lawsuit....

Here, Mary Doe was not pregnant at the date the action was initiated and seeks only prospective relief.... Mary Doe therefore lacks constitutional standing. Additionally, although “[p]regnancy provides a classic justification for a conclusion of nonmootness,” the doctrine does not apply here because she did not first establish standing.

Courthouse News Service reports on the decision.

8th Circuit Embraces Historical Practices Test In Upholding "In God We Trust" on Currency

In New Doe Child #1 v. United States, (8th Cir., Aug. 28, 2018), the U.S. 8th Circuit Court of Appeals rejected a constitutional challenge to the placement of the motto "In God We Trust" on U.S. coins and currency.  While the result is consistent with that of numerous other circuits, the analysis set out by the majority opinion is of particular interest. Judge Gruender, writing for himself and Judge Beam, takes the position that the Supreme Court's decision in Town of
Greece v. Galloway  signaled a "'major doctrinal shift' in Establishment Clause jurisprudence," explaining:

In Galloway, the Supreme Court offered an unequivocal directive: “[T]he Establishment Clause must be interpreted by reference to historical practices and understandings.”...[H]istorical practices often reveal what the Establishment Clause was originally understood to permit, while attention to coercion highlights what it has long been understood to prohibit....

... [H]istorical practices confirm that the Establishment Clause does not require courts to purge the Government of all religious reflection or to “evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage.”....

 Here, we recognize that convenience may lead some Plaintiffs to carry cash, but nothing compels them to assert their trust in God. Certainly no “reasonable observer” would think that the Government is attempting to force citizens to express trust in God with every monetary transaction.... Indeed, the core of the Plaintiffs’ argument is that they are continually confronted with “what they feel is an offensive religious message.” But Galloway makes clear that “[o]ffense . . . does not equate to coercion.”

Judge Kelly's concurring opinion argues that Galloway was merely a clarification of exiting Establishment Clause doctrine, not a sea change in it; but that exiting Supreme Court case law upholds the motto.

Judge Gruender, in portions of his opinion joined by all 3 judges on the panel, went on to reject plaintiffs' free speech, free exercise, RFRA and equal protection challenges.  In considering plaintiffs' RFRA challenge, the court held that plaintiffs have failed to allege a "substantial burden" on their exercise of religion, saying in part:

Here, the complaint alleges that the cost of the Plaintiffs’ adherence to their religious convictions is “relinquishing the convenience of carrying the nation’s money.” While cash may be a convenient means of participating in the economy, there are many alternatives that would not violate the Plaintiffs’ stated beliefs....

We recognize that, in limited circumstances, there may not be a viable cash alternative. But the complaint does not allege that the Plaintiffs are unable to make necessary or even regular purchases, and we do not think that difficulty buying “a popsicle from the neighborhood ice cream truck” or using a coin-operated laundry machine is what the Supreme Court had in mind when it said that RFRA protects against the denial of “full participation in the economic life of the Nation.” See Hobby Lobby, 134 S. Ct. at 2775-76, 2779, 2783.

Becket Fund issued a press release announcing the decision. Reuters reports on the decision.

Suit Challenges Ban On On Town's Rental of Space For Worship Services

A suit was filed yesterday 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.  The complaint (full text) in Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, (D SC, filed 8/27/2018), contends that the ban violates the First and 14rh Amendments.  ADF issued a press release announcing the filing of the lawsuit.

Washington's Work-Study Program Challenged Over Non-Sectarian Employer Requirement

A suit was filed last week in federal district court in the state of Washington challenging Washington's structuring of its Work-Study program.  The Program provides financial aid to college students by paying part of a student's salary when the student is working for a participating employer, usually in a field related to the student's studies. Eligible employers, and jobs themselves, must be non-sectarian.  The complaint (full text) in Summit Christian Academy v. Meotti, (WD WA, filed 8/14/2018) contends that excluding religious employers and sectarian work violates the free exercise clause, the equal protection clause and the Establishment Clause. Institute for Justice issued a press release announcing the filing of the lawsuit.