Florida Lawsuit Claims Court Enforcement of Parenting Plan For Circumicison of 4+ Year Old Boy Is Unconstitutional

In Florida, a dispute between the father and mother of a now four-and-one-half year old boy has led to the filing of a federal lawsuit challenging the constitutionality of a state trial court order enforcing a parenting plan provision  calling for the boy's circumcision.  The complaint (full text) in C.R.N.H. v. Nebus, (SD FL, filed 4/13/2015), filed by the mother on her own behalf and on behalf of the child, names the boy's father, Dennis Nebus, as well as all judges and sheriffs in Florida, as defendants.  As reported by the Palm Beach Sun Sentinel and AP, the boy was born in October 2010.  In 2012, his parents who were never married agreed to a parenting plan which was approved by a Florida trial court.  The plan called for the father to arrange for the son's circumcision.  Subsequently the mother changed her mind about allowing the procedure and went into hiding at a battered women's shelter with the boy.  The father has no religious reasons for desiring the boy's circumcision. It is disputed whether he has a medical reason.

The complaint contends that under the circumstances of this case, forcing circumcision of the boy amounts to assault and battery and would impair the parents relationship with their son. It also claims that the child has been denied procedural due process. the right to privacy and bodily integrity, equal protection, and free exercise of religion. Explaining the free exercise argument, the complaint contends: "C.R.N.H. is Christian and the New Testament affirmative [sic] discourages of the practice of circumcision." The complaint stresses numerous times that its arguments are made in light of the child's current age and the lack of any religious reason for the circumcision request.

Florida Extends Health and Retirement Benefits To Same-Sex Spouses of State Employees

The Miami Herald reports that Florida officials have decided same-sex spouses of state employees will now be eligible for health insurance and retirement benefits. The rulings in memos from the Department of Management Services and from the State Retirement Director come after court decisions resulted in the legal recognition of same-sex marriage in Florida as of January 6. (See prior posting.)

Challenge To Florida School Choice Expansion Dismissed On Standing Grounds

In Faasse v. Scott, (FL Cir. Ct., Dec. 30, 2014), a Florida state trial court dismissed for lack of standing a suit by Florida teachers challenging a statute passed last year expanding private-school choice by creating Personal Learning Scholarship Accounts for special needs students and expanding the existing Florida Tax Credit Scholarship Program.  Plaintiffs contended that SB 850 violates the state constitution's single subject requirement.  The court held that plaintiffs failed to show that they suffered any special injury. Links to all the pleadings in the case are available here.  RedefinED reported on the decision.

Florida District Court Judge Attempts To Clarify Injunction In Same-Sex Marriage Case

A Florida federal district court has ruled on a motion to clarify a preliminary injunction it previously issued in a suit challenging Florida's ban on same-sex marriage. (See prior related posting.) At issue was whether the court's ruling did more than require a marriage license be issued to the specific couple who filed suit. In Brenner v. Scott, (ND FL, Jan. 1, 2015), the court said:

Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees.

The Clerk has acknowledged that the preliminary injunction requires her to issue a marriage license to the two unmarried plaintiffs. The Clerk has said she will do so. In the absence of any request by any other plaintiff for a license, and in the absence of a certified class, no plaintiff now in this case has standing to seek a preliminary injunction requiring the Clerk to issue other licenses. The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk’s obligation to follow the law arises from sources other than the preliminary injunction.

As reported by SCOTUSblog, immediately following this decision the law firm advising court clerks changed the advice it had previously given and said:

Greenberg Traurig has advised the Florida Association of Court Clerks and Comptrollers that clerks should follow the judge's ruling for all marriage-license applications or face the consequences identified by Judge Hinkle.

However, apparently Judge Hinkle's opinion still left some ambiguity.  Liberty Counsel issued a press release yesterday stating in part:

Nearly all media outlets... are grossly mischaracterizing the effect of the ruling....The error is likely the result of the order's condescending lecture to clerks on why they should bow to the August injunction even though they are not bound by it. Judge Hinkle’s lecture, however, has no force of law, and only invites lawlessness throughout the state.

Supreme Court Denies Stay of Florida Same-Sex Marriage Ruling

The U.S. Supreme Court late yesterday afternoon denied an application for a stay in a Florida same-sex marriage case while the decision is on appeal to the 11th Circuit.  The Supreme Court's order (full text) in Armstrong v. Brenner, (Dec. 19, 2014) results in a district court decision handed down in August taking effect on January 5. (See prior related posting.)  Justices Scalia and Thomas dissented from the Court's action.  SCOTUSblog reports on the Court's action.

Marriage Equality Decision Stayed In Mississippi, But Not In Florida

In Campaign for Southern Equality v. Bryant, (5th Cir., Dec. 4, 2014), the U.S. 5th Circuit Court of Appeals granted a stay pending appeal of a district court injunction invalidating Mississippi's ban on same-sex marriage. (See prior posting.) In granting the stay, the court said:

It is not our task today to resolve the merits of this conflict in deciding the instant motion, however, we are convinced by the opinions of our sister circuits that “a detailed and in depth examination of this serious legal issue” is warranted before a disruption of a long standing status quo.

Meanwhile in Brenner v. Armstrong, (11th Cir., Dec. 3, 2014), the U.S. 11th Circuit Court of Appeals refused to extend beyond January 5 a previous stay of a federal district court decision handed down last August invalidating Florida's ban on same-sex marriage.  As reported by SCOTUS blog, the situation in Florida, however, is confused because of several state court rulings that have been stayed pending state court appeals.

Florida and Texas Churches Successfully Challenge Zoning Denials

This week, churches in Florida and Texas were successful in their RLUIPA challenges to zoning denials.

In Church of Our Savior v. City of Jacksonville, (MD FL, Nov. 25, 2014), a church prevailed on its RLUIPA "as applied" equal terms challenge to Jacksonville, Florida's denial of a conditional use permit. A Florida federal district court found that the city granted a permit to a Montessori school to operate in a residentially zoned area, while denying it to the church, thereby creating less than equal treatment.  The court went on to hold that the city had not shown that its two denials of conditional use permit applications were narrowly tailored to further compelling interests.  The court held that the city's actions did not violate various other provisions of RLUIPA, including RLUIPA's "substantial burden" provisions. [Thanks to Dan Dalton for the lead.]

In Cornerstone Church By the Bay v. Town of Bayview, (SD TX, Nov. 24, 2014), a Texas federal district court a preliminary injunction agreed to by both parties that apparently envisions that the town will grant a special use variance to allow a congregation to operate a church and school on property it owns in an area zoned residential. The injunction prevents the town from enforcing the zoning ordinance or interfering with the church's operation while the church applies for the required permits. Liberty Institute reports on the court's action and provides further background and links to the pleadings.

Suit Challenges Fort Lauderdale Restrictions On Feeding Homeless In Parks

Daily Business Review reports on a lawsuit filed Wednesday by Episcopal priest Rev. Mark Sims challenging a Fort Lauderdale, Florida ordinance that took effect on Nov. 1 imposing various requirements on organizations feeding the homeless in public parks. The suit claims the new law violates the federal and state constitutions as well as the Florida Religious Freedom Restoration Act. Sims and activist Arnold Abbott have been cited for violating the new law. According to the news report:

The highly publicized ordinance has been championed by Fort Lauderdale Mayor Jack Seiler and ridiculed by cable television political satirist Stephen Colbert of Comedy Central's "The Colbert Report." The most notable alleged violator is 90-year-old homeless activist Arnold Abbott.

The city bars "outdoor food distribution centers" within 500 feet of a residential property or other food distribution center and requires centers to provide restrooms, equipment for the disposal of water and wastewater, written consent of the property owner, food temperature controls and other conditions.

Apparently separately, 90-year old Abbott filed a motion to enforce an injunction issued in 2000 against an earlier Fort Lauderdale ordinance.

Religious Conservatives Oppose Proposal To Ban Transgender Discrimination

The Miami Herald reports that yesterday a Committee of the Miami Dade County (Florida) Commission by a vote of 3-1 approved a proposed Ordinance (full text) that would ban discrimination based on gender identity or gender expression in public accommodations, employment and housing. The Committee's 4-hour public hearing on the proposal was filled with testimony from religious conservatives opposing the proposal:

Raw emotion and invocations of biblical damnation over a proposed ban on discrimination against transgender people dominated Wednesday what was perhaps the fiercest debate Miami-Dade County Hall has seen this year.

Advocates of a more inclusive society, including transgender men and women who spoke of how difficult it can be to find public acceptance, were outnumbered by conservatives who, in a show of force, assailed the legislation as immoral and a threat to public safety. Two likened South Florida to Sodom and Gomorrah.

Florida Supreme Court Removes Trial Judge For Promoting Her Faith-Based Business From Courtroom

In Re: Judith Hawkins, (FL Sup. Ct., Oct. 30, 2014), the Florida Supreme Court, imposing a harsher penalty than recommended by a Hearing Panel (see prior posting), removed a Florida trial court judge from the bench. One of the major charges against Judge Hawkins was that she used her judicial office to promote her business, Gaza Road Ministries, and her book based on Biblical stories. She sold her Gaza Road Ministry products to lawyers appearing before her, promoted the products online wearing her judicial robes, and used her judicial assistant to promote and produce the products. She also failed to pay state sales tax on the sale of her books and failed to register her business.  AP reports on the court's decision.

Satanic Temple Will Seek To Hand Out Its Literature In Florida High Schools

As previously reported, once Orange County, Florida high schools allowed World Changers to distribute Bibles it had essentially created a limited public forum and felt compelled to allow Freedom From Religion Foundation to distribute at least some literature.  Now the next shoe is about to drop. Yesterday's Orlando Sentinel reports that a New York-based group, The Satanic Temple, plans to ask Orange County to allow it to hand out it literature to students so at least they will be exposed to a variety of religious opinions.  In particular it wants to hand out "The Satanic Children's Big Book of Activities" which, it says, gives students information on protecting themselves from corporal punishment at school. The Satanic Temple supports social justice causes and sees Satan as the "eternal rebel against the ultimate tyrant."

Trial Court Invalidates Florida's Ban On Recognizing Same-Sex Civil Unions

Tampa Bay Times reports that in a ruling on Monday, a Broward County, Florida trial court judge invalidated the 2008 amendment to the Florida Constitution that prohibits recognition of any "legal union that is treated as marriage or the substantial equivalent thereof." The ruling comes in a case in which plaintiff  Heather Brassner asked the Florida court to dissolve her same-sex Vermont civil union. The court concluded that it could not do so without first ruling on the constitutionality of Florida's same-sex marriage ban. After ruling, the court immediately stayed the order, pending appeal. This is the third Florida trial court ruling since July invalidating Florida's same-sex marriage ban. (See prior posting.) Yesterday's opinion in Brassner v. Lade does not appear to be available online yet, but here is the full text of plaintiff's motion for a declaratory judgment and injunctive relief.

Second Florida Trial Court Invalidates State's Same-Sex Marriage Ban; Stays Order

In Pareto v. Ruvin, (FL Cir. Ct., July 25, 2014), a Florida state trial court in Miami-Dade County held that Florida's ban on same-sex marriage violates the 14th Amendment's due process and equal protection clauses.  While ordering the Miami-Dade County clerk of courts to modify its marriage license forms to encompass same-sex marriages, the court stayed its order pending expected appeals. The court excluded from its order the provision of Florida law barring recognition of same-sex marriages performed in other jurisdictions, presumably because none of the plaintiffs before the court had been married elsewhere. Earlier this month, a Monroe County Florida trial court also struck down Florida's ban on same-sex marriage. (See prior posting.) AP reports on the Miami-Dade County decision.

State Trial Court Voids Florida's Ban On Same-Sex Marriages; Appeal Stays Decision

In Huntsman v. Heavlin,(FL Cir. Ct., July 17, 2014), a Florida state trial court judge enjoined the clerk of Monroe County, Florida from enforcing the state's ban on same-sex marriages. Finding that the ban violate's the 14th Amendment's due process and equal protection clauses, the court ordered the county clerk to issue marriage licenses to plaintiffs and other similarly-situated same-sex couples. According to the Washington Blade, the judge's order is automatically stayed because the Florida Attorney General quickly filed a notice of appeal.

School District Enters Consent Decree With Fellowship of Christian Athletes

Liberty Counsel announced yesterday that the Lake County, Florida, School Board has voted unanimously to enter into a Consent Decree in a suit brought against them last month by the Fellowship of Christian Athletes (FCA).  Mount Dora High School allowed secular non-curricular student clubs access to school facilities for announcing their activities, included the club in the school yearbook and allowed club members to wear a colored cord at graduation to signify membership.  FCA sued to obtain the same rights for religious non-curricular student clubs.  The consent decree (full text) in Mount Dora High School Fellowship of Christian Athletes v. Lake County School Board, (MD FL), provides:

The District is hereby permanently enjoined from denying to the FCA Club, and any other high school religious non-curricular student club, Club Benefits that the District provides to any other high school non-religious, non-curricular student club, and from enforcing its Policy in a manner that violates the Equal Access Act or the First Amendment, consistent with current, applicable law.

The consent decree still must be approved by the court.

Suit Seeks Florida Recognition of Same-Sex Marriages

In Florida on Wednesday, eight same-sex couples who were married in other states filed a federal lawsuit seeking to require Florida to recognize their marriages. The complaint (full text) in Grimsley and Albu v. Scott, (ND FL, filed 3/12/2014) contends that the refusal to do so violates the due process and equal protection clauses. ACLU announced the filing of the lawsuit. A state court lawsuit seeking to require Florida to issue marriage licenses to same-sex couples is already pending. (See prior posting.)

Panel Recommends Judge's Suspension and Fine For Selling Religious Items In Courthouse

A Hearing Panel of the Florida Judicial Qualifications Commission filed an opinion on Monday recommending imposing a public reprimand, a 3-month suspension without pay and a fine of $17,000 on state court judge Judith W. Hawkins.  Among other things, she was found guilty of selling religious books, study guides, and other products of Gaza Road Ministries which she founded to lawyers who appeared before her and to courthouse employees, promoting products appearing in her judicial robes on the Gaza Road Ministries website, and using her judicial assistant during working hours to promote and produce the products. In Inquiry Concerning Judge Judith W. Hawkins, (FL Judic. Qual. Commn., Jan. 27, 2014), the hearing panel published its conclusions without alluding to the fact that the products Hawkins promoted were religious in nature, saying: "The identity and nature of the business are irrelevant to these proceedings; and the business is therefore referred to by a pseudonym." The panel went on to conclude:

Judge Hawkins operated a private, for profit business from her judicial chambers. She linked the sale of ABC's products to her judicial office, by a website, which depicted her in a judicial robe, and described her as a county court judge in Tallahassee. She used state time and resources (including her judicial assistant) to promote ABC. This conduct violates Canons 1, 2B and 5D of the Code of Judicial Conduct. It lent the prestige of judicial office to advance the private interest of the judge.

The Tampa Bay Times reports on the hearing panel's recommendations. (See prior related posting.)

Suit Challenges Florida's Ban On Same-Sex Marriage

Yesterday Equality Florida Institute and six same-sex couples who were denied Florida marriage licences in Miami-Dade County filed suit in state court in Florida challenging state constitutional and statutory provisions that prevent same-sex couples from marrying in the state.  The complaint (full text) in Pareto v. Ruvin, (FL Cir. Ct., filed 1/21/2014), contends that these restrictions violate the due process and equal protection clauses of the U.S. Constitution's 14th Amendment. Equality Florida Institute and the National Center for Lesbian Rights issued a press release announcing the planned filing of the lawsuit. Liberty Counsel in a press release said it would help defend the Florida Marriage Protection Amendment which "affirms the natural created order of marriage...."

Florida Counties' Schools Allow Bible Distribution For Religious Freedom Day

In Orange and Collier counties in Florida yesterday, public schools marked Religious Freedom Day by allowing the the Florida Family Policy Council and World Changers of Florida to distribute Bibles to high school students under the schools' policy on outside distribution of materials.  The Orlando Sentinel reports that softcover and hardcover New International Version Bibles were placed by volunteers on unmanned tables in accessible locations where students could pick them up. A lawsuit by the Central Florida Freethought Community was filed last year when Orange County school officials only permitted the group to make some of its literature available for students. (See prior related posting.)

Court Orders Florida Prisons To Provide Kosher Diet Alternative

In an important prisoner free exercise decision last week, a federal district court granted a preliminary injunction ordering the Florida Department of Corrections to provide a kosher diet by July 1 to all prisoners with a sincere religious basis for keeping kosher.  The decision comes in what appears to be the first Justice Department suit directly against a state for violation of the prisoner provisions of the Religious Land Use and Institutionalized Persons Act. In United States v. Secretary, Florida Department of Corrections, (SD FL, Dec. 6, 2013), the court held that the United States was likely to prevail on the merits of its claim that Florida's religious diet policy violates RLUIPA.

The court held that Florida had not shown a compelling interest in a blanket denial of kosher food to prisoners-- in part because the state argued somewhat inconsistently that it was committed to providing kosher meals to all eligible inmates. The court also rejected Florida's argument that it had a compelling interest based on cost savings, saying:

While cost control may be a compelling interest in certain situations ... RLUIPA expressly contemplates that facilitating religious exercise "may require a government to incur expenses in its own operations.''.... The costs initially identifed by Defendants in this litigation are not of a compelling magnitude.... Even if participation were ... 1,000 prisoners per day - the cost would only be $2.12 million per year, or .001 of FDOC'S budget. No compelling interest is furthered by avoiding such a relatively minor expense....

The court additionally held invalid several provisions in a proposed religious diet program that the state had developed while the litigation was pending.  These include conditioning eligibility on clergy interpretations of religious doctrine or on prisoners' knowledge of religious law; summary suspension of prisoners from the program if they consume any item not listed as kosher; and removal from the program of prisoners who eat less than 90% of available meals, even if they consume only kosher food.  (See prior related posting.) [Thanks to Luke Goodrich for the lead.]