Plaintiffs Must Seek Narrower Relief Against Restrictions on LGBTQ Books in Children's Section of Library

In Virden v. Crawford County, Arkansas, (WD AR, Sept. 12, 2023), the court denied plaintiffs' request for a preliminary injunction because the proposed injunction was too broad, but left open the possibility of a narrower injunction later on.  The court described the dispute:

According to Plaintiffs’ amended complaint, in late 2022 or early 2023 the Crawford County Library System implemented a policy under which its library branches must remove from their children’s sections all books containing LGBTQ themes, affix a prominent color label to those books, and place them in a newly-created section called the “social section.” Plaintiffs allege this policy was imposed on the Library System by the Crawford County Quorum Court in response to political pressure from constituents who objected, at least partly on religious grounds, to the presence of these books in the children’s section.

Plaintiffs claimed that this policy violates the Establishment Clause as well as their 1st Amendment free speech right.  The court said in part:

First, with respect to the Establishment Clause claim, it must be noted that—as Defendants acknowledge—there is little useful precedent to guide this Court’s analysis. The United States Supreme Court’s most recent guidance on such claims amounts to little more than the extremely general and abstract direction that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” Kennedy v. Bremerton Sch. Dist..... In the face of this instruction, the County resorts to arguing that book banning and censorship, for reasons both religious and otherwise, have a centuries-long history in America and the broader Western world....

Neither side’s argument regarding the Establishment Clause claim is satisfactory. Plaintiffs’ argument simply sidesteps the “historical practices and understandings” analysis altogether. But the County’s argument, which is essentially that the Establishment Clause does not prohibit state-sponsored religious viewpoint discrimination because state actors have been violating the Free Speech Clause for centuries, seems out of step with the Kennedy Court’s admonition that the First Amendment’s Establishment, Free-Exercise, and Free-Speech Clauses “have complementary purposes, not warring ones where one Clause is always sure to prevail over the others.”.... 

The court found that plaintiffs had alleged sufficient facts to avoid dismissal of their claim that their 1st Amendment right to receive information had been infringed. However, it refused to enter a preliminary injunction requiring the library to return to its prior procedures for classifying and processing books, saying in part:

... Plaintiffs’ proposals would essentially freeze in perpetuity the Library’s method for processing all types of books—not only children’s books relating to LGBTQ topics. The Court does not see any reason, on the record before it, why it should curtail the Library’s discretion in processing books on such disparate topics as caring for houseplants, playing chess, or mystery novels. Furthermore, the requested injunctions are so vague and general that they could potentially prevent the Library from altering these processes even for reasons that could be perfectly benign, prudent, and constitutionally inoffensive. 

CT Supreme Court Upholds Refusal to Enforce Ketubah in Divorce Action

In Tilsen v. Benson, (CT Sup. Ct., Sept. 5, 2023), the Connecticut Supreme Court upheld a trial court's refusal to enforce the provisions of the parties' ketubah (Jewish marriage document) in setting alimony in a marital dissolution action. The husband, a rabbi, sought enforcement of the ketubah as a prenuptial agreement.  The ketubah provided that any divorce would be "according to Torah law."  Husband contended that meant a 50/50 division of property and no obligation to pay alimony, but conflicting interpretations of Jewish law were presented to the trial court.  The Supreme Court said in part:

... [W]e conclude that the plaintiff’s desired relief violates the establishment clause under the neutral principles of law doctrine. Most significant, the parties’ ketubah is facially silent as to each spouse’s support obligations in the event of dissolution of the marriage, thus leaving the court to determine those obligations from external sources as to Jewish law, namely, the parties’ expert witnesses, whose proffered opinions differed in this case, instantly alerting the court as to the establishment clause dilemma....

The court also rejected husband's argument that refusal to enforce the ketubah violated his free exercise rights by preventing him from divorcing according to Jewish law and denying him the generally available benefit of enforcing a prenuptial agreement only because of the agreement's religious nature.  The court said in part:

... [E]nforcement of this vaguely worded ketubah in the guise of protecting the plaintiff’s free exercise rights would have put the trial court on the horns of an establishment clause dilemma.

Second, the trial court did not deny the plaintiff access to the court or otherwise exact some kind of penalty in connection with his religious beliefs or practices; its decision simply meant that this dissolution action would be governed by generally applicable principles of Connecticut law as expressed in our alimony and equitable distribution statutes. Parties who desire specific tenets of their religious beliefs to govern the resolution of marital dissolution actions remain free to contract for that relief via a properly executed antenuptial, postnuptial, or separation agreement that is specifically worded to express those beliefs in a way that avoids establishment clause concerns under the neutral principles of law doctrine.

Enforcing Agreement To Cooperate With Jewish Religious Court Does Not Violate Establishment Clause

In Satz v. Satz, (NJ Super., Aug. 18, 2023), a New Jersey state appellate court upheld a trial court's order enforcing a marital settlement agreement (MSA) that the parties had entered in connection with their divorce proceedings. One provision in the agreement obligated the parties to comply with recommendations of a Jewish religious court (beis din) regarding the husband giving a get (Jewish bill of divorce) to the wife. According to the court:

On July 6, 2022, the beis din issued a fifteen-page ruling finding that defendant had not properly responded to summonses from rabbinical courts, that defendant is "obligated to divorce [plaintiff] forthright and immediately," and that his refusal to provide plaintiff a get "is a form of abuse." 

Affirming the trial court, the appellate court rejected the husband's Establishment Clause challenge, saying in part:

In this case ... the trial court was asked to enforce a civil contract, not a religious one. Nor did the trial court substantively review or affirm the beis din ruling. For purposes of this appeal, the beis din ruling is essentially a report confirming plaintiff's assertion that defendant failed to participate in the beis din proceeding in violation of his obligations under the MSA....

Defendant agreed in the MSA to abide by the beis din ruling, whatever that might be. In enforcing that agreement, the trial court in no way interpreted religious doctrine. The orders entered in this case scrupulously avoid entanglement with religion because the trial court applied well-established principles of civil contract law, not rabbinical law. The latter body of law remained solely within the province of the beis din and was not interpreted or applied by the Family Part judge, nor by us.

Denying Satanic Temple's Invocation Request Upheld

In The Satanic Temple, Inc. v. City of Boston, (D MA, July 31, 2023), a Massachusetts federal district court upheld Boston City Council's refusal to invite a representative of The Satanic Temple ("TST")  to deliver an invocation at a City Council meeting. The court said in part:

TST can prevail on its Establishment Clause claim if the evidence shows that the City's denial of TST's request to give the invocation was based on TST's religious beliefs. The City provides ample evidence that the refusal to invite TST to give an invocation was not because of TST's religious beliefs. All of the evidence submitted suggests that individual City Councilors invited speakers who served their constituents and were active in their communities, and TST did not qualify as such....

While TST provides some evidence that it had been involved in the greater Boston community, which is the primary factor City Councilors consider when selecting invocation speakers, through “Menstruatin’ with Satan,” “Warmer than Hell,” and Boston Pride tabling, there is no evidence that the City Councilors knew of those activities, nor that those activities took place within the Councilors’ districts. Indeed, the evidence clearly conflicts with that conclusion.....

The emails sent from the public to the City Councilors fall short of supporting TST's discrimination claim. Emails from the public expressing disagreement with TST's beliefs —particularly where, as here, there is no evidence that any City Councilor responded to those emails—do not support an inference that City Councilors did not invite TST to give an invocation because they shared the same opinion as the senders....

The City Council's process—or lack thereof—for selecting invocation speakers is the most troublesome to the Court of all factors to consider regarding legislative prayer practices. There is no dispute that the selection of the invocation speaker is left to each individual City Councilor's discretion, and there are no formal written policies governing this procedure. This leaves ample room for abuse, which concerns the Court. However, the lack of a formal, written policy does not by itself create a constitutional problem (though the existence of one could provide neutrality-enforcing guidelines that would help avoid constitutional issues in the future), nor does the fact that the selection of speakers is left to the discretion of the individual Councilors.

The court also rejected a free exercise claim. [Thanks to Greg Chaufen for the lead.]

Court Upholds Accreditation Requirement For Religious University

In Wisdom Ministries, Inc. v. Garrett,(ND OK, Aug. 1, 2023), an Oklahoma federal district court rejected a constitutional challenge to a cease and desist order issued by the Oklahoma State Regents.  The Regents insisted that Wisdom University, an Oklahoma-based online university operated by Wisdom Ministries, obtain proper accreditation before it issues degrees. The court held that the requirement does not violate the university's free expression, free exercise, Establishment Clause, freedom of association or equal protection rights, saying in part:

The issue raised by plaintiff has nothing to do with governmental restriction of content or subject matter being taught at Wisdom University but, instead, the state is applying a facially neutral regulation that ... falls with the power of the state to regulate business conduct....

Consumer protection is a legitimate state interest, and there is an equal need to protect students attending a secular or religious institution from paying for a degree program that does not meet certain minimal objective standards. The statute does not impose any higher burden on religious schools to obtain accreditation and such institutions are free to obtain accreditation from an agency specializing on accreditation for religious schools. Nothing about the accreditation requirement suggests that the state is favoring secular institutions or acting with hostility to religious institutions, and plaintiff has not shown that enforcement of the accreditation requirement of § 4103 violates the Free Exercise Clause as applied to religious colleges or universities....

Plaintiff’s allegations do not support a plausible claim that enforcement of the accreditation requirement of § 4103 will violate plaintiff’s rights under the Establishment Clause. Plaintiff makes a series of conclusory allegations that obtaining proper accreditation will involve the Regents in plaintiff’s religious affairs, but these allegations are speculative at best. Defendants have taken the position that Wisdom Ministries is free to operate a school or university without obtaining the accreditation required by § 4103, as long as Wisdom Ministries does not purport to offer a degree.

Hindu Profs May Move Ahead with Some Challenges To "Caste" In Anti-Discrimination Policy

In Kumar v. Koester, (CD CA, July 25, 2023), a California federal district court dismissed for lack of standing plaintiffs' free exercise and equal protection challenges to California State University's inclusion of the term "caste" in its Interim Non-discrimination Policy. However, the court concluded that plaintiffs-- South-Asian, Hindu CSU professors-- may move ahead with their Establishment Clause and vagueness claims. 

Plaintiffs object to the University's policy that treats "caste" as a social and religious hierarchy created by the Hindu religion. They contend that caste is no part of Hinduism and that its inclusion in the University policy promotes racial and religious stereotypes and subjects plaintiffs' Hindu religious beliefs to public ridicule. The court dismissed plaintiffs' equal protection challenges because "abstract stigmatic injuries" are not sufficient to create standing.  Insofar as plaintiffs argue that the Policy provides insufficient protection to non-Asian victims of caste discrimination, plaintiffs allege no injury to themselves. As to plaintiffs' free exercise challenges, the court said in part:

Plaintiffs emphatically denounce the caste system and reject the notion that it is part of their religion. Thus, the Policy does not threaten any of Plaintiffs' rights to practice their religion.

As to plaintiffs' Establishment Clause claims, the court said in part:

To evaluate the merits of an Establishment Clause claim, a court must reference historical practices and understandings.... A government practice that unevenly impacts religion may nevertheless be constitutional if it is supported by history and tradition.... Defendant contends that inclusion of the term "caste" is supported by a long history and tradition of disallowing racial discrimination in schools. While Defendant is correct that there is a long history of preventing racial discrimination in education, Defendant has not adequately demonstrated that there is a history or tradition of incorporating words with religious connotations to curb racial discrimination. Therefore, Defendant has failed to demonstrate that implicating Hinduism through the Policy's inclusion of the term "caste" is supported by history and tradition.

[Thanks to Glenn Katon for the lead.]

Guam Legislature Overrides Veto of Bill Authorizing Government-Funded Religious Charter Schools

On July 24, the Guam legislature by a vote of 13-0 overrode Governor Lourdes Leon Guerrero's July 12 veto of Bill No.62-37.  (Full text of veto message). The bill allows both private religious schools and private non-sectarian schools to petition to convert to government-funded Academy Charter Schools. The legislation authorizes up to 7 charter schools to operate at any one time. (Full text of bill and veto override vote). The legislature's introductory language in the bill reads in part:

I Liheslaturan Guåhan intends to remove any discrimination or distinction between private sectarian or non-sectarian applicants for converting existing schools or for new charter schools. I Liheslaturan Guåhan recognizes the enormous contribution and history of private sectarian education on Guam and intends for all applicants to be considered on their records and applications to convert to an Academy Charter School.

According to the Guam Daily Post:

Gov. Lou Leon Guerrero in a veto message this month said that Bill 62 violated the First Amendment and the doctrine of separation of church and state, as well as the Organic Act of Guam. She stated she couldn’t authorize the spending of taxpayer money on a religious school, which would then be regulated by the government.

But Attorney General Doug Moylan differed in a legal opinion issued to lawmakers. Several faith-based organizations receive money from the government of Guam already, he noted.

Court Rejects Muslim Americans' Challenge to Their Treatment at U.S. Borders

In Kariye v. Mayorkas, (CD CA, July 19, 2023), a California federal district court dismissed claims by three Muslim plaintiffs that their rights have been violated by ongoing religious questioning of Muslim Americans at ports of entry. The court rejected plaintiffs' Establishment Clause challenge, saying in part:

In light of the case law holding that the government has plenary authority at the border and that maintaining border security is a compelling government interest, the court finds that "reference to historical practices and understandings" weighs against finding an Establishment Clause violation based on religious questioning at the border.... Plaintiffs' allegations to the contrary—that American history and tradition protect religious belief—do not sufficiently address historical practices and understandings at the border.

Rejecting plaintiffs' Free Exercise claim, the court said in part:

[T]he ongoing harms alleged by Plaintiffs here—their modifications to religious practices during international travel— ... can ... be categorized as subjective chilling effects insufficient to constitute a substantial burden under the Free Exercise Clause....

... Plaintiffs have not plausibly alleged they were deprived of a government benefit or coerced to act contrary to their religious beliefs...

... Plaintiffs' allegations support the conclusion that the questioning alleged in this case would be a narrowly tailored means of achieving the compelling government interest of maintaining border security.

The court also rejected plaintiffs' freedom of association, retaliation, equal protection and RFRA claims.

9th Circuit: Prison Official's Referencing Bible Verse Did Not Violate Establishment Clause

In Forter v. Young, (9th Cir., July 12, 2023), the U.S. 9th Circuit Court of Appeals rejected former prisoner Jeffrey Forter's complaints about the procedure used to deny his religious meal accommodation request.  In seeking access to kosher meals, Forter cited a Bible verse. A response from a prison official disagreed with Forster's interpretation of the verse and cited an additional verse. Forster claimed that response violated the Establishment Clause.  The court disagreed, saying in part:

[T]he Establishment Clause does not prevent religious references by state actors... and the prison official’s actions do not constitute an unconstitutional “official policy that ‘establishes a religion or religious faith, or tends to do so,’”

Court Strongly Criticizes Performance of Counsel for The Satanic Temple

In March 2021, The Satanic Temple and one of its members filed suit in a Texas federal district court challenging Texas' requirement that a woman have a sonogram prior to an abortion. The complaint alleged that in light of the Satanic Temple's Satanic Abortion Ritual, the Texas requirement violated plaintiffs' free exercise, substantive due process and equal protection rights. (See prior posting.) After the U.S. Supreme Court's Dobbs decision, The Satanic Temple filed a Third Amended Complaint.  In The Satanic Temple, Inc. v. Young, (SD TX, July 3, 2023), the Texas district court then dismissed the suit for lack of standing and on sovereign immunity grounds.  The court added:

Without any supporting detail, Plaintiffs assert two causes of action under the First Amendment, one being a claim swirling together the Free Speech and Free Exercise Clauses, and the other pertaining to the Establishment Clause. Young argues that these claims are so inadequately pleaded as to deprive her of fair notice as to what exactly this suit is about in the wake of Dobbs....

The court also refused to grant plaintiffs leave to replead their claims.  In doing so, the court set out an unusually strong criticism of the performance of plaintiffs' counsel, saying in part:

Given the detail of the prior complaints and these substantial changes in the law, the deficiencies in the operative complaint are no doubt intentional. And indeed, the filing of a willfully deficient amended complaint is of a piece with the mulish litigation conduct by counsel for Plaintiffs, Attorney Matt Kezhaya, in this and other actions representing The Satanic Temple. Recently considered in this regard was whether to revoke his permission to proceed pro hac vice in light of sanctions entered against him in other federal courts after his appearance here. For example, [in one of those cases:]

He ... filed a second motion for TRO containing negligible legal analysis, with six pages of the main analysis dedicated to presentation of what’s purported to be a five-act play.....

Litigation of constitutional claims is a serious matter. Such issues deserve serious attention from counsel desiring to be taken seriously. As it turns out, Plaintiffs might have been better served by proceeding pro se, as applicable standards would dictate that their filings would be “liberally construed” and “held to less stringent standards than formal pleadings drafted by lawyers.”...

And any repleading at this stage would manifest undue prejudice to a range of current and former Defendants who still have little clue as to the exact nature of the claims brought in this case. The Court is also of the firm belief that any further attempt at repleading would be futile, given that Attorney Kezhaya’s filings become more conclusory, reductive, and intemperate over time, in line with his performative and obstinate conduct to date.

Monell Claims Opposing Transcendental Meditation Program in Chicago Schools Move Ahead

In Hudgins v. Board of Education of the City of Chicago, (ND IL, June 30, 2023), two former high school students and the mother of one of the students sued claiming that a Quiet Time transcendental meditation program in the Chicago public schools violated the Free Exercise and Establishment Clauses as well as the Illinois Religious Freedom Restoration Act. Plaintiffs claim that the program contained hidden Hindu religious elements. A number of plaintiffs' claims were dismissed, primarily on statute-of-limitations grounds. However, the court allowed plaintiffs to move ahead with their Section 1983 Monell claims for damages against the Chicago Board of Education and the David Lynch Foundation which operated the program under contract in the schools.

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.