Maine Sued Over New Limits On Religious Schools In Tuition Payment Program

 On Tuesday, a Catholic school in Maine and parents who would like to send their children to that school under Maine's tuition payment program for students from districts without public high schools filed suit in a Maine federal district court challenging new restrictions which the Maine legislature imposed on schools participating in the tuition payment program. The complaint (full text) in St. Dominic Academy v. Makin, (D ME, filed 6/13/2023), contends that the legislature enacted the new provisions to exclude religious schools after the U.S. Supreme Court in Carson v. Makin invalidated a requirement that participating schools be nonsectarian. The complaint explains: 

Among other things, Maine:

• Imposed a new religious neutrality requirement on schools, stating that “to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing”;

• Imposed a new religious nondiscrimination requirement on schools; and

• Removed the religious exemption that had previously allowed religious (but “nonsectarian”) schools to handle sensitive issues relating to sexual orientation and gender identity in a way that reflected their faith commitments....

Becket issued a press release announcing the filing of the lawsuit.

Court Refuses to Dismiss Suit by Civil Detainee Who Was Forced to Attend a Christian Religious Service

In Erie v. Hunter, (MD LA, May 31, 2023), a Louisiana federal district court refused to dismiss an Establishment Clause suit brought by a civil detainee at mental health facility who was forced to attend a Christian religious service at the facility by a psychiatric aide who claimed that she had to accompany 25 other residents to the service and could not leave plaintiff in his room unsupervised. The court said in part:

... [T]he State reverts to its position that ... Ms. Hunter faced a binary choice: either compel Mr. Erie's attendance at the worship service, or “refuse[] to allow the 25 other patients in SFF unit 1” to attend the service, thereby violating “their own free exercise rights.”.... And because the Supreme Court has rejected “a ‘heckler's veto' which would allow religious activity to be proscribed based upon [Mr. Erie's] perception or discomfort,” it was reasonable for Ms. Hunter to choose an “incidental infringement” on Mr. Erie's rights....

... [N]o reasonable official would confuse this case with a “heckler's veto” case. Mr. Erie is not challenging ELMHS's  practice of allowing weekly worship services in the SFF recreation hall, and there is no evidence whatsoever that Mr. Erie attempted to disrupt the January 9 worship service....

Second, and in any event, Mr. Erie has raised a fact dispute even regarding Ms. Hunter's claim that her choices were limited to forcing Mr. Erie to attend church or prohibiting the remaining SFF residents from attending church. Again, ELMHS's own investigation concluded that “there was [sic] other options [Ms. Hunter] could have use [sic] to locate other staff to stay with the [residents] who do not want to go to attend the religious services,”....

[Thanks to Glenn Katon for the lead.]

Suit Challenges High School-College Dual Enrollment Plan Exclusion of Some Religious Colleges

Suit was filed yesterday in a Minnesota federal district court challenging a Minnesota statute that excludes certain religious colleges from participating in the state's Postsecondary Enrollment Options (PSEO) program. The program allows students to earn college credits free of charge at public or private colleges while still in high school. An amendment to the PSEO law which will take effect on July 1 bars colleges from participating in the program if the school requires a faith statement from high schoolers or if any part of the admission decision is based on a high schooler's religious beliefs or affiliations.  The complaint (full text) in Loe v. Walz, (D MN, filed 5/24/2023), alleges that the new law variously violates the free exercise, free speech, Establishment Clause and equal protection rights of religious families and religious colleges. The complaint alleges in part:

172. The amendment requires Plaintiffs Crown [College] and [University of] Northwestern to choose between maintaining their religious identities and receiving an otherwise available benefit for which they have been eligible for decades. 

173. It likewise forces the Loe family and the Erickson family to either forgo receipt of an otherwise-available benefit or forgo their right to seek an education in accordance with their religious beliefs.

Becket issued a press release announcing the filing of the lawsuit.

Deputy Has Qualified Immunity In Suit Claiming His Failure to Intervene in Establishment Clause Violation

 In White v. Goforth, (6th Cir., May 18, 2023), the U.S. 6th Circuit Court of Appeals held that Sheriff's Deputy Jacob Goforth had qualified immunity in a suit against him for failing to intervene in conduct by Daniel Wilkey, an on-duty officer who is also a preacher. Wilkey called Goforth asking him to witness a baptism at a nearby lake.  The court explained:

Unbeknownst to Goforth, Wilkey had stopped Shandle Riley earlier that evening and found her in possession of marijuana. Wilkey told Riley that if she agreed to let him baptize her, he would issue her a citation and not take her to jail. She agreed and followed Wilkey in her car to a nearby lake. When Goforth arrived, he saw what appeared to be a consensual, if improper, situation.... Critically, however, Goforth never learned of Wilkey’s improper quid pro quo.....

Reversing the Tennessee district court's denial of qualified immunity, the appeals court said in part:

Riley asserts that Wilkey’s coerced baptism of her violated the Establishment Clause. That may well be so. Coercion “was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.”... Threatening jail time for refusing Christian baptism seems an easy fit for this category. But even if Wilkey violated Riley’s constitutional rights, Wilkey is not before us; only Goforth is. There is nothing in the record indicating that Goforth knew of Wilkey’s quid pro quo....

The district court thought that, even absent coercion, it was clearly established that an officer in Goforth’s position would be “liable for failing to intervene if a reasonable observer” would have perceived a governmental endorsement of religion, as defined by the Lemon test and its progeny....We cannot agree. First, Kennedy clarified that the Supreme Court had “long ago abandoned Lemon and its endorsement test offshoot.” ... If that is so, then Goforth could not have had a clearly established duty to stop Wilkey from violating it....

Moreover, we can find no case that had ever found an officer liable where his fault was not his own endorsement of religion, but his failure to intervene in someone else’s.

Judge's Religious Comments Did Not Violate Defendant's Rights

 In State of Ohio v. Loftis, (OH App., May 19, 2023), an Ohio state appellate court held that a judge's references to religion during a sentencing hearing for defendant who was convicted of sexual battery did not violate defendant's due process rights or the Establishment Clause. During the sentencing hearing, the trial court judge said in part:

... [T]he diminished influence or role of organized churches and faith or religion in the world, that whole diminishing concept isn’t boding well for the community. No surprise maybe if you read Revelation, if you do Biblical prophecy, you are all going to end up in a big dumpster fire at some point in time, so the trend is exactly what we are seeing....

The statutes, the law, every social moray[,] every religious system at least in terms of the New Testament years have said there is a duty to protect children. Some societies sacrifice children, but that’s thousands of years ago. It’s the other way around. Is that lost? Yeah, totally it’s lost. That doesn’t mean the expectation is not there....

The appellate court said in part:

 ... [T]he trial judge’s comments did not suggest that he was referencing his own religious beliefs as a guideline for his sentencing decision. Instead, his comments were limited to espousing his belief that the lack of a religious foundation leads to improper behavior. 

More importantly, we conclude that the trial court complied with the applicable provisions of R.C. Chapter 2929. The record affirmatively demonstrates that the trial court relied upon the proper statutory factors....

Establishment Clause Challenge to Transcendental Meditation Program in High School Moves Ahead

In Williams v. Board of Education of the City of Chicago, (ND IL, May 16, 2023), an Illinois federal district court refused to grant summary judgment to either side on an Establishment Clause challenge to a high school's elective instruction in Transcendental Meditation brought by former student Amonte Williams.  The court said in part:

[T]here is evidence that a Transcendental Meditation instructor separated Williams from his classmates and brought him individually to a different classroom for the initiation. A reasonable jury could find that Williams, having arguably signed up to be trained in Transcendental Meditation, was then required to observe a religious ceremony in order to learn meditation and was misled about the ceremony's religious nature. The scenario as presented by Williams differs from the school prayer cases ... because there was no imposition or mention of any specific beliefs by the defendants. But the initiation ceremony distinguishes this situation from those cases involving the simple practice of Yoga in schools.... The evidence in this record— most notably the details of the initiation ceremony—suggest that a reasonable jury could find that the Transcendental Meditation training as implemented was religious in nature or at least included a required religious ceremony....

... A reasonable jury could find that Williams felt pressured to support the purportedly religious aspects of Transcendental Meditation during the initiation ceremony, when he saw various items placed around a picture of a teacher of Transcendental Meditation while the instructor spoke in a language he did not understand. It is less clear whether Williams would have felt pressured to support the instructor-led meditation in the classrooms.... [T]he Court denies the defendants' motion for summary judgment.... To the extent that Williams intended to move for summary judgment on his Establishment Clause claim ...,  the Court denies the motion. The reason is that a reasonable jury could find that there was no "captive audience," that the initiation ceremony was not religious in nature, or that Williams did not feel pressured to support any religious aspects of the program.

Satanic Temple Sues to Deliver Invocation at Chicago City Council

The Satanic Temple filed suit last week in an Illinois federal district court challenging the city's exclusion of its clergy from delivering an invocation before Chicago City Council.  The complaint (full text) in The Satanic Temple, Inc. v. City of Chicago, (ND IL, filed 5/3/2023) alleges in part:

2. The City of Chicago has a longstanding practice of inviting clergy to open each meeting of its City Council with a prayer. 

3. Plaintiffs, The Satanic Temple Inc. (“TST”), and Adam Vavrick, an ordained minister of the Satanic Temple and a leader of TST’s Illinois congregation, seek to take part in this time-honored tradition by delivering an invocation before a City Council meeting. For more than three years, the City has rebuffed Plaintiffs’ efforts to provide an invocation without providing any clear explanation of why. 

4. The City’s practices with regard to invocations before City Council violate the First Amendment in two ways:

first, the City violates the First Amendment’s establishment clause by excluding disfavored minority faiths from the opportunity to provide an invocation; and 

second, the City grants the City Clerk unconstrained discretion to decide who can and cannot deliver an invocation because it lacks any standards for selection of clergy to give invocations and has not established a uniform process for members of the clergy to apply to give an invocation.

Reason reports on the lawsuit.

Deed Restriction Does Not Violate Establishment Clause

In Hilo Bay Marina, LLC v. State of Hawaii, (HI Cir. Ct., March 21, 2023), a Hawaii trial court dismissed a suit seeking to void a deed restriction.  In 1922, the land at issue was conveyed by the Territory of Hawaii to the Church of Jesus Christ of Latter Day Saints, with a deed restriction that the land could only be used for church purposes. Under the restriction, the land would revert to Hawaii if it was used for non-church purposes.  In 2000, the land was conveyed to the Hilo Bay Marina, presumably triggering the reversion. Fifteen years later it was conveyed by the Marina to Keaukaha Ministry.  Now the Marina and the Ministry sue to void the deed restriction, among other things contending that it violates the Establishment Clause of the U.S. and the Hawaii Constitutions.  The court rejected the claim citing the U.S. Supreme Court's decision in Kennedy v. Bremerton Schol District, and saying in part:

The Establishment Clause "must be interpreted 'by reference to historical practices and understandings.'"...

The practice of selling government lands with deed restrictions was an early form of use-zoning and is interpreted as a historical practice of zoning....

Even if Article I, §4 of the Hawai'i Constitution is not coextensive with the Establishment Clause of the First Amendment..., the deed restriction passes constitutional muster under Lemon v. Kurtzman....

The deed restriction allows for any religious organization to benefit from the property, so it does not endorse or approve one religion over another....

The surveillance and monitoring required to enforce the deed restriction do not present excessive entanglement because they are no different than that of what is required to enforce any other zoning regulation.

Catholic Media Group Can Move Ahead with Free Speech and Assembly Claims

In St. Michael's Media, Inc. v. Mayor and City Council of Baltimore, (D MD, March 31, 2023), a Maryland federal district court in an 80-page opinion allowed a conservative media organization that often criticizes the current leadership of the Catholic Church to move ahead with free speech and freedom of assembly claims against the city of Baltimore and the management of a city-owned concert venue.  The claims grew out of the cancellation of a contract for plaintiff to hold a conference and prayer rally to coincide with the Fall General Assembly of the U.S. Conference of Catholic Bishops. The court said in part:

St. Michael’s sufficiently alleges viewpoint-based discrimination.... St. Michael’s alleges that defendants cancelled the rally “specifically because they disapproved of the content and viewpoint of the speech that was expected to occur at the rally.”... St. Michael’s asserts that, when Voris spoke with Shea regarding the cancellation, “Shea told Mr. Voris that his office had received reports that St. Michael’s had ‘ties to the January 6 [2021] riot’ at the Capitol building in Washington, D.C.”.... As I acknowledged in granting the preliminary injunction ..., “invocation of the events of January 6, 2021, as horrifying as they were, cannot, without more, serve as a license for the City to dispense with its obligations under the First Amendment.”

The court however dismissed plaintiff's free exercise claim, saying in part:

[T]he Second Amended Complaint “does not raise any plausible suspicion”—even a slight suspicion—that plaintiff’s religious exercise was the “object” of the City’s decision to cancel the rally.

It also dismissed plaintiff's Establishment Clause claim, saying in part:

The only allegation in the SAC asserting City support for the USCCB is that “Shea unilaterally canceled St. Michael’s [sic] contract with SMG because the USCCB told him to.”...  [T]his still does not exhibit a religious preference. St. Michael’s bases this assertion on its belief that “Shea was told by USCCB members that the content of speech during St. Michael’s [sic] rally would be uncomfortable or offensive for the attendants of its Fall General Assembly to hear.”... Yet, the only religious element of the rally identified by St. Michael’s is praying the Rosary. There are no facts alleged to support the claim that defendants chose one religious group over another.

Church Preschool Challenges California's Anti-Discrimination Rules for Food Program Participants

Suit was filed earlier this month in a California federal district court by a Christian church and its preschool challenging the state's agreement form that was required for participants in the state's Child and Adult Food Care Program. The complaint (full text) in Church of Compassion v. Bonta, (SD CA, filed 3/10/2023), alleges in part:

The new 2022 CDSS PSA required the Church and Dayspring to certify that their management of the CACFP Food Program will be “operated in compliance with all applicable civil rights laws and will implement all applicable non-discrimination regulations....

Because of the Church’s orthodox religious beliefs regarding human sexuality, it was unable to comply with the PSA when it submitted its application for the 2022-2023 year. Specifically, Dayspring signed the PSA statement, but deleted the words “sexual orientation” and “gender identity.”

The complaint alleges that the requirement violates plaintiffs' Free Exercise, Free Speech and Establishment Clause rights. National Center for Law & Policy issued a press release announcing the filing of the lawsuit.

Christain School Sues Over "Poison Pill" Provisions That Exclude It from Maine's Tuition Payment Program

Suit was filed this week in a Maine federal district court by a Christian school challenging 2021 amendments to Maine's Human Rights Act that operate to exclude the school from participating in Maine's tuition payment program for students from districts without public high schools.  The motion for a preliminary injunction (full text) which was filed along with the complaint in Crosspoint Church v. Makin, (D ME, filed 3/27/2023), focuses on provisions in 5 MRSA §4602 that now require schools that participate in the tuition reimbursement program to comply with the sexual orientation and gender identity non-discrimination provisions. Religious schools that do not receive public funding are exempt from that provision. The law also now provides that "to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing." Plaintiff characterizes these provisions as "poison pills" that prevent it from participating in the tuition payment program without violating its religious beliefs after the U.S. Supreme Court in Carson v. Makin upheld the right of sectarian schools to participate. Plaintiff seeks a preliminary injunction based on violations of the Free Exercise, Free Speech and Establishment Clauses. Washington Times reports on the lawsuit.

Moving of Confederate Monument Did Not Violate Plaintiffs' Religious Rights

In Edgerton v. City of St. Augustine, (MD FL, March 20, 2023), a Florida federal district court rejected plaintiffs' challenges to the city's moving a monument honoring Confederate Civil War veterans from City Park to a new location.  Among other things, the court rejected Establishment Clause and Free Exercise challenges, saying in part:

Plaintiffs allege that "the message [the monument] conveyed has changed over time[,] which demonstrates why the removal of it. . . appears hostile and offensive to those who use it for moments of respect, prayer, and remembrance of those long gone." ... Plaintiffs do not allege the City considered any of Plaintiffs' religious beliefs when it decided to remove and relocate the monument. Additionally, Plaintiffs provide no allegations of historical practices or understandings of similar instances of a city removing a monument, and such removal amounting to an Establishment Clause violation.

... Mr. Edgerton "expressed his religious beliefs by paying respect to the dead [soldiers] by praying at and protecting the 'empty tomb' of his 'Southern family[.]"... Mr. Ross alleges that he "had participated in prayer at the site" of the monument, but since it has been relocated, his ability to continue doing so is "nearly impossible."... Ms. Pacetti alleges that she "has freely exercised her right to Christian memorial expression of her deceased family member at the Plaza next to the [m]onument[.]"... Mr. Parham alleges that he "continued to visit the [m]onument after his father's death . . . exercising his religious memorial expressions.",,,

Accepting these allegations as true, Plaintiffs do not state a plausible violation of their Free Exercise rights. Plaintiffs can still exercise any and all of the beliefs they have alleged.... Plaintiffs do not allege facts that the City relocated the monument because of Plaintiffs' religious beliefs....

Good News Clubs Sue to Get Access for After School Programs

Suit was filed last week in a Rhode Island federal district court by the Good News Clubs contending that their 1st and 14th Amendment rights were violated when Providence, RI school officials blocked approval of their use of school facilities for after-school programs. The complaint (full text) in Child Evangelism Fellowship of Rhode Island, Inc. v. Providence Public School District, (D RI, filed 3/10/2023) alleges in part:

CEF Rhode Island and its proposed Good News Clubs are similarly situated to the other organizations the District allows to host their afterschool programs in District elementary schools because all the organizations provide teaching and activities to develop things like confidence, character, leadership, and life skills in their participants. CEF Rhode Island, however, offers its programming from a Christian religious viewpoint, while the other organizations offer their similar programming from a nonreligious viewpoint....

The increasingly burdensome requirements the District has imposed on CEF Rhode Island as conditions to access for its Good News Clubs are discriminatory and pretextual disguises for the District’s hostility towards CEF Rhode Island’s Christian identity, message, and viewpoint.

Liberty Counsel issued a press release announcing the filing of the lawsuit.

Latest Attempt to Prevent City from Removing Cross from Public Park Fails On Procedural Grounds

Lion's Club of Albany, California v. City of Albany, (ND CA, March 9, 2023), is the latest installment in the ongoing litigation over the removal of a 28-foot tall, illuminated Latin cross located in a park which the city has purchased. (See prior related posting.) The Lioin's Club has an easement allowing it access to the cross to maintain it. After a prior decision finding that the city violated the Establishment Clause when it purchased the park and left the cross standing, the city instituted eminent domain proceedings in state court to acquire the easement so it could remove the cross. The state trial court judge granted the city prejudgment possession of the easement so the city could take down the cross and store it in a safe place pending the outcome of the eminent domain proceedings. The Lion's Club asked the state court of appeals to stay the trial court's order. That petition was denied for technical reasons that could have been cured. Instead, the Lion's Club came back to federal court seeking a temporary restraining order to prohibit removal of the cross.  In this decision, the court denied that request invoking the Rooker-Feldman doctrine which requires a federal court to dismiss a case when the plaintiff is essentially attempting to appeal a state court decision through the lower federal courts rather than by filing appeals through state court channels.

Certiorari Denied in Challenge to Police Department Prayer Vigil

The U.S. Supreme Court today denied review in City of Ocala, Florida v. Rojas, (Docket No. 22-278, certiorari denied 3/6/2023) (Order List.) In the case the U.S. 11th Circuit Court of Appeals vacated and remanded a district court's Establishment Clause decision that had relied on the now-repudiated Lemon test. The district court had granted summary judgment to plaintiffs who challenged a prayer vigil co-sponsored by the Ocala police department held in response to a shooting spree that injured several children. (See prior posting.) Justices Gorsuch and Thomas filed separate opinions (full text). Justice Gorsuch, while agreeing with the denial of certiorari, contended that the district court should also reconsider the question of plaintiffs' standing as "offended observers," saying in part:

"... [M]ost every governmental action probably offends somebody. No doubt, too, that offense can be sincere, sometimes well taken, even wise. But recourse for disagreement and offense does not lie in federal litigation. Instead, in a society that holds among its most cherished ambitions mutual respect, tolerance, self-rule, and democratic responsibility, an ‘offended viewer’ may ‘avert his eyes’ or pursue a political solution."

Justice Thomas dissented from the denial of review, saying in part:

[W]e should have granted certiorari to review whether respondents had standing to bring their claims. Standing is an antecedent jurisdictional requirement that must be established before a court reaches the merits....

I have serious doubts about the legitimacy of the “offended observer” theory of standing applied below.

5th Circuit Rejects Pastor's Jurisdictional Theory of Religion Clauses

 In Spell v. Edwards, (5th Cir., Feb. 17, 2023), the U.S. Court of Appeals for the 5th Circuit affirmed the dismissal of a suit brought by a pastor and his church claiming that their First Amendment rights were violated by enforcement against them of COVID orders in the early months of the pandemic that barred their holding church services. The court said in part:

Pastor Spell explicitly waived the argument that defendants’ actions violated his constitutional rights under current free exercise jurisprudence....  Pastor Spell instead advanced an absolute, categorical theory of the Religion Clauses, arguing that church assembly is “beyond the jurisdiction of the government.”... He maintained that, under Everson v. Board of Education of Ewing Township, there is a “jurisdictional limit on intrusion by the state into the church.”  In so doing, he expressly waived other arguments.

Pastor Spell is the master of his case, and he cannot prevail on the theory he advances. Controlling precedent directly contradicts Pastor Spell’s jurisdictional theory of the Religion Clauses.

Unfiltered With Kiran reports on the decision.

Suit Says Sheriff's Office Pressures Employees to Join Favored Church

Suit was filed this week in a Washington federal district court by an ex-deputy sheriff who alleges that Chelan County (WA) Sheriff's Office employees pressured him to join the "'alt-right' militant" Grace City Church and to attend its 12-week marriage counseling program. The complaint (full text) in Shepard v. Chelan County, (ED WA, filed 2/14/2023), alleges in part:

Defendant Chelan County Sheriff's Department targeted law enforcement officers who are not Grace City Church members by disciplining, terminating, and denying advancement to them for alleged internal Chelan County Sheriff's Office policy violations by arbitrarily enforcing certain policies against those employees and officers for the same conduct they allow, promote, or engage in themselves.

The suit alleges violation of Title VII, the Washington Law Against Discrimination and the Establishment Clause. NCWLIFE reports on the lawsuit.

Church Can Move Ahead Against County in Suit on Covid Restrictions

 In Abiding Place Ministries v. Newsom, (SD CA, Feb. 14, 2023), a California federal district court allowed a church to move ahead with certain of its claims against San Diego County for enforcing Covid restrictions against public gatherings. The court held that the county's public health officer had qualified immunity against the damage claims because "there was no clear precedent in March or April 2020 that would have put every reasonable official on notice that promulgating orders restricting in person religious gatherings to slow the spread of the COVID-19 virus was clearly and definitively unconstitutional."

The court however allowed plaintiff to move ahead with Free Exercise, Freedom of Assembly, Establishment Clause, Free Speech and Equal Protection claims against the County. The court said in part:

The County threatened enforcement, penalties, and fines if Plaintiff did not comply with the County Order.... Plaintiff alleges this action by the County “forced the Church’s members to remain away from church against their will, under threat of punishment,,,,”  [T]he allegations of the FAC regarding the County’s alleged unconstitutional policy is sufficient overcome the County Defendants’ argument that it cannot be liable under Monell. Accordingly, the County Defendants’ motion to dismiss is DENIED on this ground.....

[The FAC] alleges the County’s Orders and Defendants’ enforcement “had the primary effect of inhibiting religious activity” and caused “excessive government entanglement with religion.” ... Plaintiff contends its religious services exempted from gatherings were treated differently than other public gatherings.... At this stage of the pleadings, the County Defendants’ motion to dismiss the second cause of action is DENIED....

Whatever level of scrutiny is applied, Plaintiff has alleged they were prohibited from engaging in protected speech and assembling in person for the purpose of worship while other gatherings promoting non-religious speech were permissible.... Taking those allegations as true, Plaintiff has plausibly alleged claims for violations of the First Amendment’s freedom of speech and freedom of assembly clauses....

Plaintiff contends Defendants “intentionally and arbitrarily categorized individuals and conduct as either ‘essential’ or ‘non-essential.’”... At the pleading stage, Plaintiff has alleged sufficient facts to state a claim for violation of the Equal Protection clause....

Suit By Clergy Challenges Missouri Abortion Bans

Suit was filed this week in a Missouri state trial court by 13 clergy from several Christian denominations, as well as from Unitarian Universalist and Jewish traditions challenging a series of Missouri abortion restrictions and bans as violating the state constitution's prohibition on favoring any religion and its protection of free exercise of religion.  The 83-page complaint (full text) in Blackmon v. State of Missouri, (MO Cir. Ct., filed 1/19/2023), alleges in part:

8. This open invocation of religion in enacting H.B. 126 marked a departure from earlier legislative efforts to restrict abortion, when the sponsors claimed that their intent was to protect Missouri women. The legislative debate over those provisions reveals that, as with H.B. 126, the true purpose and effect of these laws was to enshrine certain religious beliefs in law. In enacting S.B. 5, for example, legislators spoke repeatedly of their intent to protect “innocent life,” could point as justification for the law only to biased investigations by the Senate “Sanctity of Life” Committee, and ignored the testimony of clergy who warned that targeting providers to limit abortion access impermissibly imposed one religious view on everyone else....

10. Collectively, Plaintiffs, like other clergy and faith communities all across this State, have through their work providing care, counseling, teaching, and preaching, spent decades countering the false but all too common assertion that faith and abortion access are incompatible. Their beliefs and lived experiences stand in stark contrast to the religious dictates that the Total Abortion Ban, Gestational Age Bans, Reason Ban, 72-Hour Delay, Same-Physician Requirement, Medication Abortion Restrictions, and Concurrent Original Jurisdiction Provision (collectively, the “Challenged Provisions”) impose on all Missourians.

NPR reports on the lawsuit. 

4th Circuit: Muslim Inmate's Free Exercise Claim Rejected; Establishment Clause Claim Remanded

In Firewalker-Fields v. Lee, (4th Cir., Jan. 17, 2023), the U.S. 4th Circuit Court of Appeals affirmed the dismissal of a Muslim inmate's 1st Amendment Free Exercise claim. Plaintiff alleged that he did not have access in jail to Friday Islamic prayers. The court said in part:

Middle River had three rules in place that kept Firewalker-Fields from attending in-person Friday Prayer: no inmate led groups; no maximum-security prisoners allowed in any in-person groups; and prisoner services and classes by volunteer or donation only. Those rules are reasonably related to justifiable prison goals and therefore do not offend the Free Exercise Clause....

... [E]ach of Middle River’s policies is reasonably related to the legitimate penological purposes of security and resource-allocation; despite the jail’s policies, Firewalker-Fields still had other ways to practice his religion, even if they were not perfect; Firewalker-Fields’s preferred solutions would have impaired the jail’s safety and its efficient operation; and Firewalker-Fields failed to propose easy and obvious alternative policies that would have solved those issues while allowing more room for his religious practice. Taken together, this shows that each challenged policy is reasonably related to legitimate penological goals and are justifiable under Turner.

The court also vacated and remanded plaintiff's Establishment Clause challenge to the jail's broadcast of Christian services every Sunday on televisions throughout the facility.  Noting the Supreme Court's recent repudiation of the Lemon test and adoption of a test based on historical practice and understanding, the court said in part:

The district court should have the initial responsibility of working through Firewalker-Fields’s Establishment Clause challenge under Kennedy.