Monument Challenges Dismissed For Lack of Standing

In American Atheists, Inc. v. Levy County, (ND FL, Dec. 3, 2017), a Florida federal district court dismissed on standing grounds a challenge to a Ten Commandments monument in a courtyard outside county government buildings, as well as a challenge to the county's refusal to allow placement in the same area of a granite bench dedicated to non-believers.  Dismissing plaintiffs' Establishment Clause challenge to the Ten Commandments, the court said in part:

Plaintiffs have failed to meet the injury-in-fact requirement because [plaintiff] Mr. Sparrow is unlikely to encounter the Monument in the future and because his only encounter with the Monument in the past was during a purposeful visit.

Dismissing an equal protection challenge to the refusal of a permit for the monument to atheists, the court held that "Plaintiffs lack standing because they have failed to show redressability."  Their proposal did not comply with guidelines for permissible monuments.  The court concluded:

Had counsel for Plaintiffs devoted more thought to these [standing] issues, then perhaps this Court could have addressed the merits of this dispute. But counsel didn’t, so this case must be dismissed for lack of standing.

Liberty Counsel issued a press release announcing the decision.

Court Enjoins Florida Law Restricting Abortion Advice

In Fuldwider v. Senior, (ND FL, Sept. 29, 2017), a Florida federal district court issued a preliminary injunction against enforcement of a Florida statute placing limits on individuals and organizations that provide advice or help to individuals seeking an abortion. Among those challenging the law were a minister and two rabbis who provide religious counseling that sometimes includes discussion of religious beliefs about abortion and sometimes includes referrals to organizations that provide abortions.

The challenged law requires those who provide advice or referrals to register with the state. It requires anyone making a referral to first provide a detailed explanation of abortion, including alternatives. Before referring a minor, the person or agency must also attempt to provide the same explanation to the minor's parents or guardian.  The court summarizes its holding:

This case presents a challenge to a state law that (1) imposes a content-and viewpoint-based requirement to register and pay a fee to engage in speech protected by the First Amendment and (2) makes it a crime not to simultaneously engage in compelled speech that the law describes so vaguely that even the state’s Attorney General does not know what is required. This order grants a preliminary injunction barring enforcement of these provisions.

ACLU issued a press release announcing the decision.

Invocation Policy That Excludes Non-Theists Is Unconstitutional

In Williamson v. Brevard County, (MD FL, Sept. 30, 2017), a Florida federal district court held that the invocation practices of the Brevard (FL) Board of County Commissioners violate the Establishment Clause as well as free speech, free exercise, equal protection and various state constitutional provisions.  County Commissioners take turns inviting clergy or others to deliver an invocation at the beginning of each board meeting.  Commissioners, however, will only invite representatives of the faith-based community.  Non-theists may not deliver invocations, though they may speak during the public comment portion of a Board meeting.  The court, in a 69-page opinion, held:

Although the County contends that its invocation practice passes constitutional muster under Town of Greece, the Supreme Court's opinion in that case cannot be read to condone the deliberate exclusion of citizens who do not believe in a traditional monotheistic religion from eligibility to give opening invocations at County Board meetings. Neither Town of Greece nor any other binding precedent supports the County's arguments, and none of the County's asserted justifications for its practice holds water....

For a governmental entity to require, or attempt to require, "religious" content in invocations is, in effect (or, at best, but a step removed from) that entity composing prayers for public consumption or censoring the content of prayer....

Americans United issued a press release announcing the decision.

EEOC Files Two Religious Accommodation Suits

On Wednesday the EEOC announced the filing of two separate religious discrimination lawsuits.  One suit (press release) was brought against the Sacramento, California-based supermarket chain Raley's for refusing to continue accommodating the religious needs of a Jehovah's Witness employee. The employee was fired after insisting that she needed to attend religious meetings on Wednesday evenings and Sunday afternoons.

In a second suit (press release), the EEOC sued  the Florida-based Publix Supermarket chain for refusing to accommodate a Ratafarian new hire's religious need to wear his hair in dreadlocks.

Controversy Brews Over Holiday Display of Pentagram Monument

Controversy over December holiday displays has begun early this year in Boca Raton, Florida.  A city ordinance allows residents to put up unattended displays during the holiday season in Sanborn Square, a city park.  According to yesterday's Christian Times, a local teacher has filed an application to set up a 300-pound metal Pentagram honoring Satan this December.  The display would include captions such as "In Satan We Trust," "One Nation under Antichrist" and "May the Children Hail Satan."  The teacher also wants to set up a Freedom From Religion Nativity Display.  A local pastor has reacted by saying: "It’s evil, it’s the essence of evil. I will take the responsibility for taking the sledgehammer and knocking it down."

In Unusual Church Autonomy Dispute, Catholic School Can Require Immunization of All Students

In a case with an unusual twist, a Florida state appeals court yesterday upheld the policy of a Catholic school requiring immunization of all students, even when a parent has religious objections to immunization.  In Flynn v. Estevez, (FL App., June 27, 2017), the appeals court held that under the church autonomy doctrine, a civil court cannot require a religious school to comply with the provision in Florida law that allows parents to object on religious grounds to immunization of their children. It said in part:

...[T]he application of the statutory exemption to the Diocese is problematic due to the intramural ecclesiastical kerfuffle that underlies this dispute. The Diocese has a religiously-based immunization policy with which one of its members disagrees; Mr. Flynn seeks the power of the State to compel the Diocese to depart from its point-of-view and admit his non-immunized son. But doing so would further his own religious views at the expense of the Diocese’s on the topic of immunizations. We are convinced that a secular court should not be making the judgment as to which side’s religious view of immunization is to be respected.... Unlike other church autonomy cases, the unique feature of this one is that both parties assert Catholic religious doctrine as the basis for their litigation positions, which cautions against a secular court wading into the squabble.... 

Mr. Flynn claims the Diocese’s vaccination policy must be actually rooted in a specific religion doctrine, tenet, or text, and that its “general concern about the ‘common good’” is a religiously ineffectual basis for invoking the abstention doctrine. Though the trial court wasn’t presented with the specific religious basis for the Diocese’s new policy, we find no fault in its conclusion that “immunizations of children attending Catholic schools is an issue of faith, discipline, and Catholicism [that] can only properly be determined by the church and not by the civil courts.” Courts are in no more of a position to compel the Diocese to provide a sufficient quantum of passable proof that its view of immunization is consistent with the Catholic faith than to do so as to Mr. Flynn’s personal views of Catholic doctrine on the very same subject.

News Service of Florida reports on the decision.

Florida Enacts Student Religious Liberty Law

On June 12, Florida Governor Rick Scott signed SB 436, the Florida Student and
School Personnel Religious Liberties Act (full text) (legislative history). The law becomes effective July 1.  As summarized by the Florida Department of Education:

The bill requires school districts to treat a student’s voluntary expression of a religious viewpoint on an otherwise permissible subject the same as the district treats a secular viewpoint.... The bill also requires districts to allow students to wear religious clothing, accessories and jewelry to the extent secular items with symbols or messages are also allowed.

The bill requires that students be allowed to pray or participate in religious activities or gatherings before, during and after school, to the same extent secular activities or clubs are allowed.... The bill requires school districts to give religious groups the same access to school facilities and ability to announce or advertise meetings as given to secular groups.

Finally, the bill requires all school districts to adopt a policy creating a limited public forum for student speakers at school events where students speak publicly and cannot discriminate against voluntary religious expression by a student on an otherwise permissible subject....

Latin Cross In City Park Violates Establishment Clause

In Kondrat'yev v. City of Pensacola, Florida, (ND FL, June 19, 2017), a clearly reluctant Florida federal district court judge held that a 34-foot concrete Latin Cross that has stood in the city's Bayview Park for decades violates the Establishment Clause.  The cross is the site for an annual Easter sunrise service as well as remembrance services on Veterans Day and Memorial Day.  The court laments:

... the historical record indicates that the Founding Fathers did not intend for the Establishment Clause to ban crosses and religious symbols from public property. Indeed, “the enlightened patriots who framed our constitution” ... would have most likely found this lawsuit absurd. And if I were deciding this case on a blank slate, I would agree and grant the plaintiffs no relief. But, alas, that is not what we have here.

The court concluded that  ACLU of Georgia v. Rabun County Chamber of Commerce, a 1983 case from the 11th Circuit Court of Appeals involving "this exact issue on virtually identical facts" required it to conclude that the Bayview Cross violates the Establishment clause under the Lemon test. The court concluded:

To be clear: None of this is to say that the cross would have to come down if the City sold or leased the area surrounding it to a private party or non-governmental entity (so long as the transfer was bona fide and not a subterfuge). Nor would there be a constitutional problem with worshipers using a temporary cross for their services in the park.... However, after about 75 years, the Bayview Cross can no longer stand as a permanent fixture on city-owned property.

The American Humanist Association issued a press release on the decision, with links to various pleadings in the case.

New Trial Sought After Juror Dismissal For Hearing Holy Spirit

As previously reported, last month a Florida federal court jury found former Congresswoman Corrine Brown  guilty on 18 counts of fraud and corruption after the judge removed a juror who insisted the Holy Spirit had told him Congresswoman Brown was not guilty on all charges. Now a motion for a new trial has been filed (full text).  The motion in United States v. Brown, (MD FL, filed 6/8/2017), argues:

There is a substantial possibility the holy spirit was actually the juror's own mind or spirit telling him that one or more witnesses had not testified truthfully.

[Thanks to Ray Treadwell for the lead.]

Prayer Over Football Game Loudspeaker May Be Banned

In Cambridge Christian School, Inc. v. Florida High School Athletic Association, (MD FL, June 7, 2016), a Florida federal district court, agreeing with a magistrate's recommendation (see prior posting), dismissed a suit brought by a Christian high school complaining that it was denied permission to use the stadium loudspeaker system to deliver a prayer at the Championship Game in which its football team was playing. The action was taken by the governing organization for athletics in Florida’s public schools-- a body which private schools must join if they wish to play against public schools.  The court said in part:

... [T]he entirety of the speech over the Stadium loudspeaker was government speech and ..., even if it were not, the Stadium loudspeaker is a non-public forum. Therefore, the FHSAA was permitted to deny Cambridge Christian’s request to use it to broadcast prayer during a school sporting event organized and governed by a state entity....

Here, ... there was no ban on communal prayer. Instead, the FHSAA simply declined to sponsor Cambridge Christian’s prayer, which is not a violation of the Free Exercise Clause....

The allegations of the Verified Amended Complaint ... allege only that Cambridge Christian was denied its traditional method of advancing the school’s mission during sporting events, and that the mission is a religious one. The mission itself, however, is not a religious belief, nor is broadcasting a prayer over a loudspeaker.... [E]ven if denial of access to the loudspeaker did burden a religious belief of Cambridge Christian, such a burden did not amount to a substantial one, but simply inconvenienced the belief, because Cambridge Christian was not denied alternate means of engaging in communal prayer. Accordingly, Cambridge Christian has failed to state a claim under Florida’s Religious Freedom Restoration Act. 

Juror Removed For Religious Statement Made In Deliberations

According to FirstCoast News, in a Jacksonville, Florida federal district courtroom earlier this month, a jury found former Congresswoman Corrine Brown  guilty on 18 counts of fraud and corruption. The jury's decision came a day after the judge removed one of the jurors  (referred to as Juror 13) from the panel. The judge took action against Juror 13 after another juror sent the judge a letter complaining about Juror 13's religious remarks. Near the beginning of deliberations, Juror 13 told the others that the Holy Spirit had told him Congresswoman Brown was not guilty on all charges. The full transcript of the judge's questioning Juror 13 before deciding to remove him from the jury makes interesting reading.

Criminal Complaints Filed Against JCC Bomb Threat Perpetrator

The Department of Justice announced that on Friday criminal complaints were filed against Michael Kadar, a dual American-Israeli citizen living in Israel, who allegedly telephoned bomb threats to Jewish institutions around the U.S. earlier this year. According to the Criminal Complaint filed in federal district court in Florida:

Beginning on January 4, 2017, and continuing until March 7, 2017, an individual, later identified as KADAR, made at least 245 threatening telephone calls involving bomb threats and active shooter threats. A significant portion of the threats targeted Jewish community centers ("JCCs"), and other historically Jewish institutions such as Jewish schools and Anti-Defamation League offices.

A Criminal Complaint was also filed against Kadar in a Georgia federal district court charging him with making a series of "swatting" calls to public schools and residences in Athens, Georgia.  The Forward reports on developments. [Thanks to Michael Lieberman for the lead.]

UPDATE: In Israel today, Kadar was charged in a Tel Aviv Magistrate's Court with various other crimes, including an attempt to extort a U.S. Senator, Ernesto Lopez. (Haaretz).

Challenge To Boca's Zoning For Chabad Again Dismissed For Lack of Standing

As previously reported, last July a Florida federal district court dismissed on standing grounds a challenge by residents and taxpayers of Boca Raton to zoning changes by the city that permitted a Chabad (Hasidic Jewish) group to construct a religious center.  Plaintiffs, who identified themselves as Christians, claim that the city's actions violated the Establishment clause, the equal protection and due process clauses, and the Florida Constitution. Subsequently plaintiffs filed an amended complaint attempting to find standing by describing plaintiffs as citizens and residents of the United States residing in Boca Raton, and as members of the Christian religion.  In Gagliardi v. City of Boca Raton, 2017 U.S. Dist. LEXIS 46805 (SD FL, March 27, 2017), the court again found that plaintiffs lack standing, saying in part:

Far from the particularized and concrete injury required to confer standing, Plaintiffs have simply reasserted, again and again, a list of conjectural injuries to the whole of the area surrounding the proposed Chabad site, and potentially beyond.

Suit Says City Misled Public About Scope of Ordinance Adding LGBT Protections

Liberty Counsel announced yesterday that it has filed a lawsuit challenging the validity of recent amendments to the Jacksonville, Florida Human Rights Ordinance.  The complaint (full text) in Parsons v. City of Jacksonville, Florida, (FL Cir. Ct., filed 3/1/2017), alleges that amendments adding "sexual orientation" and "gender identity" to the "protected categories" in the Jacksonville's existing nondiscrimination laws were improperly adopted.  Florida state law provides:

No ordinance shall be revised or amended by reference to its title only. Ordinances to revise or amend shall set out in full the revised or amended act or section or subsection or paragraph of a section or subsection.

The new lawsuit contends that the amendments to the Human Rights Ordinance failed to set out the provisions that were being amended, and charges that "the violations result from the intentional omission of plain and obvious legal requirements, by the ordinance authors and sponsors, to deceive the Jacksonville public, City Council, and Mayor as to the true contents and scope of the HRO."

Florida Judge Says Refusal To Sell Cake With Anti-Gay Message Is Not Religious Discrimination

A Florida Administrative Law Judge in a decision last week recommended to the Florida Commission on Human Relations that it find a Longwood, Florida bakery did not violate the state's public accommodation law when it effectively refused an order for a cake with the inscription "Homosexuality is an abomination unto the Lord." Cut the Cake bakery, owned by a mother and daughter, quoted a caller a price of $5,850 for the cake after the bakery had been the subject of thousands of calls per week when a You-Tube video was posted of a previous call in which the bakery refused to make a cake displaying an anti-homosexual message. In Mannarino v. Cut the Cake Bakery, (FL Div. Admin. Hearings, Feb. 9, 2017), petitioner claimed that the refusal constituted religious discrimination against him as a Christian.  The judge ruled, however, that the bakery did not fall within the definition of "public accommodation" under Florida law since it does not sell food for consumption on the premises. Additionally he ruled that petitioner had not shown religious discrimination, saying:

Cut the Cake refused to fulfill Petitioner’s order, not because he was Christian, but because of what it perceived to be the purpose of his message. Cut the Cake considered Petitioner’s message mean-spirited, regardless of his religion or the Quote’s source.

St. Augustine Record reports on the decision.

Court Upholds Denial of Football Stadium Loudspeakers For Prayer

In Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., (MD FL, Feb. 3, 2017), a Florida federal magistrate judge recommended dismissing a suit brought by a Christian high school complaining that it was denied permission to use the stadium loudspeaker system to deliver a prayer at the Championship Game in which its football team was playing.  The opinion finds that mere denial of loudspeaker access did not amount to a free exercise violation, saying in part:

Nowhere ... is there a single allegation that Cambridge Christian or any of its members were deprived of their right to pray at the Championship Game. On the contrary, both Cambridge Christian’s team and the opposing team were permitted to pray together at the most centrally focused and public area of the Stadium—the 50-yard line.... There are no allegations that Cambridge Christian was prohibited from passing out flyers with pre-printed prayers or that the cheerleaders were prohibited from holding up large signs spelling out prayers for those in the stands to say in concert with the team.

The opinion also rejected free speech and Establishment Clause claims. WUSF reports on the decision.

Florida Supreme Court Denies Review In Tax Credit Scholarship Challenge

Yesterday in McCall v. Scott, (FL Sup. Ct., Jan. 18, 2017) the Florida Supreme Court declined to hear in appeal in a case challenging the constitutionality of Florida's Tax Credit Scholarship Program.  In August, a state appeals court held that a group of plaintiffs-- advocacy organizations, teachers, parents and religious and community leaders-- lack standing to pursue the case. (See prior posting.) Tampa Bay Times reports on the state Supreme Court's action.

Elaborate Christmas Display Is Not Public Nuisance

According to the Broward County Sun Sentinel, a Florida state trial court judge yesterday dismissed a suit by the city of Plantation, Florida seeking to enjoin Mark and Kathy Hyatt from erecting the elaborate Christmas display that they have annually put up at their home. (See prior posting.) The court ruled that the city had failed to show that the display-- containing 200,000 lights, a movie screen a 30-foot tree and a Ferris wheel for stuffed animals-- constitutes a public nuisance.

Appeals Court Upholds Ban On Father Discussing Religion During Child Visitation

In Koch v. Koch, (FL App., Sept. 28, 2016), a Florida state appellate court upheld a trial court's order in a parenting plan that was part of a divorce proceeding prohibiting the father from discussing any religious matters during his two hours per week visitation time with his 3 children.  The trial court had concluded that religiously-based admonishments, threats of damnation, and demonization of the children’s mother was abusive to the children, causing them anxiety and severe emotional distress.

City Seeks To Ban Elaborate Christmas Display

In Plantation, Florida, the city-- citing code violations-- is asking a Broward County court to enjoin Mark and Kathy Hyatt from erecting the elaborate Christmas display that they have put up at their home for the last 23 years.  According to WSVN News yesterday, the Hyatts' neighbors complain that the display draws thousands to the neighborhood each year between Thanksgiving and the end of December, creating noise, litter and severe traffic problems.