Title IX Religious Exemption Survives Constitutional Challenge

In Hunter v. United States Department of Education, (D OR, Jan. 12, 2023), an Oregon federal district court dismissed a suit brought by students who have attended a religious college or university challenging the application of the religious exemption in Title IX in a manner that allows religious colleges and universities to discriminate against LGBTQ students. Rejecting plaintiffs' equal protection claim, the court said in part:

Plaintiffs have not alleged how the religious exemption fails intermediate scrutiny. Defendants point out that the Ninth Circuit has recognized “that free exercise of religion and conscience is undoubtedly, fundamentally important.”... Exempting religiously controlled educational institutions from Title IX—and only to the extent that a particular application of Title IX would not be consistent with a specific tenet of the controlling religious organization, see 20 U.S.C. § 1681(a)(3)—is substantially related to the government’s objective of accommodating religious exercise.

The court rejected plaintiffs' Establishment Clause challenge applying the Lemon test. The court also rejected various other constitutional challenges to the exemption.

Creche Displays in State Capitols Are Widespread This Year

According to the Thomas More Society, nativity scenes are being displayed in most state Capitol buildings this year.  The organization's press release says in part:

Celebrations of the Savior’s birth are scheduled with 43 State Capitol Nativity Scenes across America this Christmas. The Thomas More Society and the American Nativity Scene are helping a growing number of private citizen groups across the nation to display Biblical manger scenes on government property this Christmas. State Capitols in Alaska, New York, Utah, and Virginia are scheduled to feature the traditional display of the Holy Family with Baby Jesus in the manger for the first time this year....

 “Many erroneously assume that government entities are prohibited from allowing a religious display,” explained Thomas More Society Vice President and Senior Counsel Thomas Olp. “The law is clear. Government entities may erect and maintain celebrations of the Christmas holiday – or allow citizens to do so on government property, including nativity scenes, as long as a crèche’s sole purpose is not to promote its religious content, and it is placed in context with other symbols of the season as part of an effort to celebrate the public Christmas holiday through traditional symbols. We pray that the nativity scenes of the Christmas season will help to foster a sense of unity and peace on earth.”

Tom Brejcha, Thomas More Society President and Chief Counsel, echoes the importance of displaying the nativity scenes, especially in times of social or political controversy. He stated, “The Christmas message highlights the inherent dignity of each and every human being.”

American Nativity Scene's website lists which state capitols feature creche displays, and which do not. It also contends that in addition to their religious significance, Nativity Scenes convey many secular messages:

These manger scenes are celebrations of birth, new life, and renewal and hope bound up with succeeding generations.  As well, they celebrate the beauty of the family, of mother, father and child.  That the shepherds attended the event with their animals bespeaks the natural bonds that unite all men and women, within the larger human community, and together with all other living beings, our fellow creatures. 

Suit Charges Selective Granting of Religious Exemptions From COVID Vaccine Mandate

A class action lawsuit was filed in a Virginia federal district court this week alleging that the University of Virgina Health System violated free exercise and establishment clause provisions of the federal and state constitutions as well as equal protection rights in the manner in which it administered applications from employees for religious exemptions from its COVID vaccine mandate. The complaint (full text) (memo in support of motion for preliminary injunction) in Phillips v. Rector and Visitors of the University of Virginia, (WD VA, filed 12/14/2022), alleges in part:

2. When UVA Health mandated that employees receive a COVID-19 vaccine, it knew that it was required to accommodate religious beliefs. But it wanted to minimize accommodations, and it believed that most objections were false political beliefs from members of the political right. 

3. So UVA Health drew up a list of churches that its human-resources personnel believed had official doctrines prohibiting vaccination. It then automatically exempted members of these religions from receiving the vaccine. As to employees who were members of other faiths, UVA Health automatically dismissed their religious objections to the COVID-19 vaccine as insincere, as non-religious in nature, as based on “misinformation,” or as a misinterpretation of the objector’s own religious beliefs....

5. The result was blatant—and blatantly unconstitutional—religious discrimination....

The complaint goes on to allege that UVA categorically dismissed as misinformation objections based on the relation of fetal cell lines to the vaccines. [Thanks to Samuel Diehl for the lead.]

Suit Challenging School's Scheduling of Revival As An Assembly May Move Ahead

In Mays v. Cabell County Board of Education, (SD WV, Dec. 13, 2022), a West Virginia federal district court refused to dismiss a suit against a school, its principal and a substitute teacher for scheduling and hosting an evangelical Christian revival as an assembly in the school auditorium during homeroom period in violation of the Establishment Clause.  The court said in part:

At the very least, the allegations against Principal Gleason and Mr. Jones are that they organized and scheduled a revival that was initiated and sponsored by adults, not students. The revival also was given preferential treatment as it was scheduled during a time and in a location that was unavailable to other groups who wanted to bring in outside speakers. Moreover, Mr. Jones’ entire class and another class were taken to the revival without being told what it was, and Mr. Jones would not let S.F. leave once he was there.... 

Here, Principal Gleason and Mr. Jones encourage the Court to simply accept their version of events and conclude that the Nik Walker Ministries was sponsored by the FCA, and the FCA was allowed to hold an assembly during non-instructional time pursuant to a neutral policy in a limited public forum. Mr. Jones also states he did not require the students in his classroom to attend the revival. However, as this Court previously expressed, the Amended Complaint directly contradicts Defendants’ narrative, creating factual issues that should be explored through discovery, not resolved on a motion to dismiss.

WOWKTV reports on the decision.

Oklahoma Attorney General's Opinion Says Ban on Sectarian Charter Schools Is Unconstitutional

 In Attorney General Opinion 2022-7, (Dec. 1, 2022), Oklahoma Attorney General John M. O'Connor concluded that the ban in Oklahoma law on publicly funded charter schools being sectarian or religiously affiliated is unconstitutional. He said in part:

You ask what effect, if any, the Trinity Lutheran, Espinoza, and Carson decisions have on the validity of the non-sectarian restrictions found in Section 3-136(A)(2) of the Oklahoma Charter School Act. That passage states as follows:

A charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations. A sponsor may not authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution....

We believe, based on the First Amendment and the Trinity Lutheran, Espinoza, and Carson line of decisions, that the U.S. Supreme Court would likely hold these restrictions unconstitutional....

It is important to emphasize, however, that to the extent that neutral and generally applicable limitations may be found elsewhere in the Act, those limitations can likely be applied to religious charter schools, so long as they are truly neutral and applied equally to all charter schools alike.... The constitutional problem is singling out religion, not necessarily the provisions found elsewhere regulating various aspects of charter schools.

The Oklahoman reports on the Attorney General's Opinion.

En Banc rehearing Denied in Challenge to Courtroom Invocations

In Freedom From Religion Foundation, Inc. v. Mack, (5th Cir., Dec. 2, 2022), the U.S. 5th Circuit Court of Appeals by a vote of 12-3 denied an en banc rehearing in a case decided by a 3-judge panel in September. (See prior posting.) The panel held that a program devised by a Texas Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain does not violate the Establishment Clause.  Judge Higginson, joined by Judge Graves, filed an opinion dissenting from the denial of an en banc rehearing. They said in part:

None of the history cited by our court contemplates a judicial command “to stand and bow” for prayer, much less under threat of retaliation. At best, our court digs up “scattered evidence” that some nineteenth- and twentieth-century courts started with a prayer. Along with other evidence that prayers have been said and God invoked in courtrooms, our court thinks this is enough to prove that “courtroom prayer is consistent with a broader tradition of public, government-sponsored prayer.” I agree with the dissenting panel opinion that this history is too thin to justify that conclusion, but I would add that our court’s answer is pitched at the wrong level of generality....  [T]he question is whether “history shows that the specific practice is permitted,” not whether a general practice is permitted.

Court Rejects Religious Challenges to COVID Mask Requirements

 In Joseph v. Becerra, (WD WI, Nov. 29, 2022), a Wisconsin federal district court rejected a pro se plaintiff's claims that VA and Postal Service COVID masking requirements violated his free exercise and Establishment Clause rights as well as various other rights. The court said in part:

Joseph refuses to wear a mask, which he views as a medical device and religious symbol. A Christian, Joseph claims to practice his faith in part by “taking a stance against what he sees and understands to be evil or unlawful,” such as the masking requirements.... Specifically, Joseph alleges that the masking requirements violate several of the tenets of his faith and promotes “Collectivism” over his individual rights. By promulgating a masking policy, Joseph further alleges that the federal government is seeking to establish “a nameless and covert religion/religious order” that “is a type of scientism ... discriminatory and divisive in nature and in practice.”...

[P]laintiff’s Establishment Clause claim is not only based on a Bivens claim not yet recognized by the Supreme Court, but also on the “faulty premise” that “scienticsm” is a religion. .... Admittedly, the governing case law does not precisely define the contours of what constitutes “religion,” but “courts are well-equipped to weed out spurious Establishment Clause ‘religions’ on grounds of common sense.”...

[E]ven if wearing a mask has substantially impaired plaintiff’s ability to exercise his faith while receiving in-person medical treatment, working, traveling in public spaces, or attending public events, rules that have only an “incidental effect of burdening a religious practice” will pass muster under the Free Exercise Clause provided they are applied neutrally and generally applicable.

Court Upholds NY Law Banning Bars from Opening on New Year's When It Falls on Sunday

In Eris Evolution, LLC v. Bradley, (ED NY, Nov. 8, 2022), a New York federal district court rejected an Establishment Clause challenge to a provision in New York's liquor laws that allows bars to apply for permits to stay open all night on New Year's except when New Year's falls on a Sunday. The court concluded that the U.S. Supreme Court's 1961 decision in McGowan v. Maryland upholding Sunday closing laws forecloses plaintiff's claim.  The court said in part:

McGowan holds that a law with a secular purpose does not violate the Establishment Clause; it does not hold that providing a uniform day of rest is the only such purpose. Indeed, the Supreme Court enumerated the exceedingly broad categories of “health, safety, recreation and general well-being.” ... The only available legislative history states that the law at issue was amended in 1950 “to protect the health of the people.”...

Eris must do more than show that the law is irrational; it must also show that its real purpose is to advance a particular religion or religion in general. This it has failed to do.

Suit Challenges New York Ban on Firearms in Houses of Worship

Suit was filed this week in a New York federal district court challenging the constitutionality of New York's ban on carrying firearms in houses of worship. The complaint (full text) in His Tabernacle Family Church, Inc. v. Nigrelli, (WD NY, filed 11/3/2022) alleges that the ban violates the free exercise, Establishment Clause, Second Amendment, and equal protection rights of a church and its pastor.  The complaint says in part:

S51001 forbids Pastor Spencer and the Church’s members, under threat of criminal penalties, from exercising their religious conviction to carry firearms into the Church to protect themselves and other congregants.....

[S51101]  subjects houses of worship to disfavored treatment while treating comparable secular organizations, such as retail stores or restaurants, more favorably than those offering religious exercise....

A church’s authority over who may enter the sanctuary and under what circumstances lies at the very heart of “the general principle of church autonomy” protected by the Establishment Clause.....

First Liberty issued a press release announcing the filing of the lawsuit. Last month, in another case, the same court issued a temporary restraining order barring enforcement of this statutory provision. (See prior posting.)

New Survey Covers Attitudes About Religion, Christianity and Christian Nationalism in Public Life

The Pew Research Center last week (Oct. 27) released an extensive poll on the attitudes of the American public about religion's role in public life.  It asked questions about whether the U.S. should be a Christian nation, whether respondents have heard of Christian nationalism, and much more. The 65-page report (full text) on the poll says in part: 

Overall, six-in-ten U.S. adults – including nearly seven-in-ten Christians – say they believe the founders “originally intended” for the U.S. to be a Christian nation. And 45% of U.S. adults – including about six-in-ten Christians – say they think the country “should be” a Christian nation. A third say the U.S. “is now” a Christian nation. 

At the same time, a large majority of the public expresses some reservations about intermingling religion and government. For example, about three-quarters of U.S. adults (77%) say that churches and other houses of worship should not endorse candidates for political offices. Two-thirds (67%) say that religious institutions should keep out of political matters rather than expressing their views on day-to-day social or political questions. And the new survey – along with other recent Center research – makes clear that there is far more support for the idea of separation of church and state than opposition to it among Americans overall.

National Motto in Public Schools Again Upheld

 In JLF v. Tennessee State Board of Education, (MD TN, Oct. 27, 2022), plaintiff asked a Tennessee federal district court to reconsider its prior holding that display of the national motto "In God We Trust" in a public charter school lobby did not violate the Establishment Clause. Plaintiff argued that the U.S. Supreme Court's holding in Kennedy v. Bremerton School District which rejected the Lemon test and adopted the Historical Practice test for Establishment Clause cases constitutes an intervening change in controlling law. However, the court denied plaintiff's motion to reconsider, saying in part:

Kennedy has no effect on the court’s previous ruling, because the court did not rely on Lemon to reject the plaintiff’s Establishment Clause claim and, instead, considered the national motto in its historical context to conclude that its posting in public schools does not violate the Establishment Clause.

Profs Sue University for Including Caste in Antidiscrimination Policy

Suit was filed on Monday in a California federal district court by two California State University professors challenging the University's inclusion of discrimination on the basis of caste in its Interim Antidiscrimination Policy adopted in January. The complaint (full text) in Kumar v. Koester, (CD CA, filed 10/17/2022) alleges in part:

[T]he Interim Policy seeks to define the Hindu religion as including “caste” and an alleged oppressive and discriminatory caste system as foundational religious tenets. That not only is an inaccurate depiction of the Hindu religion, but the First Amendment to the United States Constitution prohibits California and CSU from defining the contours of Hinduism (or any religion)....

The Interim Policy also singles out only CSU’s Hindu employees, professors and students, as well as those of Indian/South Asian origin. No other Protected Status in the Interim Policy addresses any specific ethnicity, ancestry, religion or alleged religious practice,,,

Plaintiffs seek a determination that the term “caste” as used in the Interim Policy is unconstitutionally vague, and the Interim Policy as drafted violates the rights of Plaintiffs (and similarly situated individuals) under the First and Fourteenth Amendments to the United States Constitution, as well as their rights under the California Constitution.

The Hindu American Foundation issued a press release announcing the filing of the lawsuit.

Religious Questioning Of Muslim Travelers By Border Officers Upheld

In Kariye v. Mayorkas, (CD CA, Oct. 12, 2022), three Muslim plaintiffs sued the Department of Homeland Security alleging that border officers routinely and intentionally single out Muslim-American travelers to demand they answer religious questions. The court, in a 71-page opinion in its official format, first dismissed plaintiffs' Establishment Clause challenge. Applying the Supreme Court's test articulated in Kennedy v. Bremerton School District, the court said in part:

The court finds substantial legal authority supporting the government's historically broad authority to implement security measures at the border.... Additionally, the court finds substantial authority holding that maintaining border security is a compelling government interest.

The court rejected plaintiffs' free exercise claim, finding that plaintiffs had not sufficiently alleged a substantial burden on their religious exercise. It additionally concluded that even if there was a substantial burden, officers' questioning was narrowly tailored to advance a compelling governmental interest in protecting borders and preventing potential terrorism.

The court also rejected freedom of association, retaliation, equal protection and RFRA challenges to practices of border officers.

Village Residents Lack Standing In Establishment Clause Challenge To Zoning Law

In Citizens United to Protect Our Neighborhoods v. Village of Chestnut Ridge, New York, (SD NY, Sept. 30, 2022), a New York federal district court dismissed for lack of standing a suit by a civic organization and Village residents alleging that the Village's new zoning code violated the Establishment Clause by favoring one religious group, Orthodox Jews.  The Code created new categories of religious uses and houses of worship, including "residential gathering places" so that single-family homes could be opened for religious activities, subject to additional parking requirements. This facilitated small-scale worship services often used by Orthodox Jews who for religious reasons cannot drive on the Sabbath and holidays. The court said in part:

Plaintiffs claim the new zoning amendments “target religious uses with special favorable treatment over secular uses.” (Id.) However, Plaintiffs have not identified any injury, nonetheless a particularized and concrete one. The law is clear that generalized grievance is insufficient to establish standing....

Individual Plaintiffs claim they have direct exposure standing because the New Zoning Law was rushed into law and gives preferential treatment to OJC and religious uses over secular uses, such that “the construction of an untold number of houses of worship” will serve as “constant reminders of the law and its endorsement of religion.” ... This is an insufficient basis ... for finding direct exposure standing....

11th Circuit: City Council Invocation Is Government Speech

In Gundy v. City of Jacksonville Florida, (11th Cir., Sept. 30, 2022), the U.S. 11th Circuit Court of appeals held that an invocation opening a city council meeting delivered by Reginald Gundy, a pastor invited by a member of Council, is government speech.  At issue is a suit by the pastor whose microphone was cut off in the middle of his invocation by the city council president who concluded that the invocation had crossed over into a political attack. The court concluded that the pastor's suit should be dismissed, saying in part:

Mr. Gundy's appeal centers on the fact that he brought counts against Mr. Bowman and the City based on alleged violations of his free speech and free exercise rights under the United States Constitution and the Florida Constitution.

As a threshold and dispositive matter, ... we hold that the district court erred in deeming the invocation private speech in a nonpublic forum instead of government speech. And since Mr. Gundy did not allege a violation of his rights under the Establishment Clause, which is the proper constitutional vehicle to attack the government speech at issue here, his appeal must fail.

Courtroom Invocations Did Not Violate Establishment Clause [UPDATED]

In Freedom From Religion Foundation v. Mack, (5th Cir., Sept. 29, 2022), the U.S. 5th Circuit Court of Appeals held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain does not violate the Establishment Clause. The court said in part:

The plaintiffs cry coercion because Texas Justice of the Peace Wayne Mack opens his court with a ceremony that includes a prayer. But Mack also takes great pains to convince attendees that they need not watch the ceremony—and that doing so will not affect their cases. Some attendees say they feel subjective pressure anyway. Yet the plaintiffs have no evidence suggesting that “coercion is a real and substantial likelihood.” Town of Greece v. Galloway, 572 U.S. 565, 590 (2014).

Want of evidence showing coercion dooms their case. In holding otherwise, the district court disregarded the Supreme Court’s most recent guidance.

First Liberty Institute issued a press release announcing the decision.  The 5th Circuit had previously granted a stay which allowed the invocations to go on while the case was on appeal.

UPDATE: This was a 2-1 decision. Judge Jolly filed an opinion dissenting in part.  He argued that the case needed to be sent back to the district court for additional fact finding.  He criticized the majority's opinion, saying in part:

Plaintiffs have produced considerable evidence showing that Judge Mack conducts his opening prayer and other religious ceremonies “in such a way as to oblige the participation of objectors.” ...  For the majority to find that there is no evidence of coercion, suggests, in my opinion, willful blindness and indisputable error....

[D]espite digging into the history books, the majority’s opinion comes up dry on historical precedent.... [And] the majority inaccurately presents recent Supreme Court precedent.

Appropriation To Christian School Challenged Under South Carolina Constitution

Suit was filed yesterday in a South Carolina state trial court contending that a state budget appropriation of $1.5 million to  Christian Learning Centers of Greenville County violates the provision in South Carolina's constitution that bars the use of public funds "for the direct benefit of any religious or other private educational institution." The complaint (full text) in Parker v. McMaster, (SC Com. Pl., filed 9/20/2022) asserts that the appropriation also contravenes the state constitution's Establishment Clause. The appropriation is aimed at partially funding a $14 million residential school for disadvantaged and at-risk youth. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

9th Circuit: Prof Gets Qualified Immunity In Suit Challenging His Course Presentation Of Islam

In Sabra v. Maricopa County Community College District,(9th Cir., Aug. 10, 2022), the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a Community College professor is entitled to qualified immunity in a suit against him claiming that his online module on Islamic terrorism in a World Politics course violated plaintiffs' Establishment Clause and Free Exercise rights. Plaintiffs claimed the module's primary message was disapproval of Islam and that the end-of-module quiz forced a Muslim student to disavow his religion by choosing answers reflecting a radical interpretation of Islam. The majority held that there is no case law "clearly establishing" that defendants' actions violated the First Amendment. It also concluded that plaintiffs had abandoned their municipal liability claim against the College on appeal.

Judge VanDyke filed a concurring opinion saying in part that "The only thing clearly established about ... [Plaintiffs' free exercise] claim is that nothing about it is clearly established."

Judge Bress dissented, saying in part:

I would have met Sabra’s Free Exercise claim on the merits rather than rely on legally infirm alternative grounds for affirmance. Sabra’s allegations are troubling, concern matters of sincerely held religious conviction, and warrant further judicial inquiry.

Clergy Sue Challenging Florida's Abortion Restrictions

The Washington Post reports that in Florida, seven members of the clergy-- Christian, Jewish, Unitarian-Universalist and Buddhist-- have filed lawsuits contending that Florida's 15-week abortion ban violates their free exercise, free speech and Establishment Clause rights. Typical of the lawsuits is the complaint (full text) in Hafner v. State of Florida, (FL Cir. Ct., filed 8/1/2022), filed by a pastor of the United Church of Christ.  It alleges in part:

 59. The Act establishes as the law of the State of Florida, a particular and narrow religious view about abortion and when “life” begins. This view is contrary to the religious beliefs of Plaintiff and the UCC, which does not necessarily make a claim regarding when “life” begins, but instead, centers on the mother’s right to have a choice, oversee her own body, and make her own decisions.

60. The Act further provides for no exceptions for the psychological health of the mother or family, non-fatal fetal abnormalities, or victims of incest, rape, or trafficking, which are all circumstances in which the UCC would, amongst other circumstances, support a girl or woman’s decision to have an abortion before or after fifteen weeks....

65. Plaintiff’s beliefs are consistent with the UCC principles set forth above and, as a result, the Act substantially burdens the exercise of her religious faith because it hampers her ability to counsel congregants and speak freely on reproductive rights and issues and burdens her congregants’ ability to seek counsel from their religious leader.

Here is the complaint in a similar suit filed by three rabbis (Pomerantz v. State of Florida, (FL Cir. Ct., filed 8/1/2022).

UPDATE: Here is the complaint in Chotso v. State of Florida, (FL Cir. Ct., filed 8/1/2022), filed by a Buddhist Lama.

Kentucky Abortion Bans Violate State Constitution

In EMW Women's Surgical Center v. Cameron, (KY Cir. Ct., July 22, 2022), a Kentucky state trial court issued a temporary injunction against enforcement of two statutes restricting abortions-- a six-week fetal heartbeat ban, and a ban on almost all abortions triggered by the overruling of Roe v. Wade. Relying on provisions of the Kentucky state constitution, the court found that the Trigger Ban constituted an unconstitutional delegation of legislative authority to the U.S. Supreme Court, and also concluded that the law is unconstitutionally vague. the court concluded that the six-week ban violates provisions of the Kentucky constitution protecting the right to privacy, equal protection and the prohibition on the establishment of religion and the protection of the free exercise of religion. The court said in part:

Defendants' witnesses ... argue that life begins at the very moment of fertilization and as such is entitled to full constitutional protection at that point. However, this is a distinctly Christian and Catholic belief. Other faiths hold a wide variety of views on when life begins and at what point a fetus should be recognized as an independent human being....

The General Assembly is not permitted to single out and endorse the doctrine of a favored faith for preferred treatment.... There is nothing in our laws or history that allows for such theocratic based policymaking.

AP reports on the decision.

UPDATE: A Kentucky appellate court lifted the injunction while the case is on appeal, and the Kentucky Supreme Court refused to reinstate the injunction but set the case for argument on Nov. 15. An ACLU press release reports on these developments.