11th Circuit: Ecclesiastical Abstention Doctrine Covers Church Leadership Dispute

In Eglise Baptise Bethanie De Ft. Lauderdale, Inc. v. Seminole Tribe of Florida, (11th Cir., Aug. 19, 2020) the U.S. 11th Circuit Court of Appeals affirmed a Florida federal district court's dismissal of a suit filed to settle a dispute over church leadership between the church's board of directors and the widow of its deceased pastor. One faction enlisted tribal police to evict worshipers supporting the other faction during a worship service. The court said in part:

The plaintiffs claim that the district court erred in dismissing the claims against Auguste because their claim—rather than involving ecclesiastical disputes—is merely a property dispute. That framing ignores two threshold issues. Before reaching the plaintiffs’ § 248 claim, a court would need to determine whether Auguste was the rightful successor to the church’s leadership and, if she was, whether Auguste had the authority to exclude the plaintiffs from the church’s property. Answering these questions would require us to inquire into church rules, policies, and decision-making and questions of church governance are manifestly ecclesiastical.

RLUIPA Protects Religious Transition Home

In City Walk - Urban Mission Inc. v. Wakulla County Florida, (ND FL, July 9, 2020), a Florida federal district court granted a preliminary injunction requiring county officials to allow a church to operate a religious transition home for 3 to 6 unrelated adults. Neighbors had begun to complain when they learned that the home included registered sex offenders. The court said in part:

Defendant amended its Land Use Development Code, limiting Plaintiff to housing only two unrelated adults in the three-bedroom home at a given time....  The Religious Land Use and Institutionalized Persons Act ... provides broader protection for religious exercise than is available under the First Amendment. RLUIPA prohibits, among other things, a government from imposing a substantial burden on an entity’s or person’s religious exercise unless the government demonstrates that the imposition of the burden is in furtherance of a compelling interest and is the least restrictive means of furthering that compelling interest.

This Court finds Defendant’s two-adult limitation amounts to a substantial burden on Plaintiff’s religious exercise and that Defendant has failed to show that the burden imposed is the least restrictive means of furthering a compelling interest.

Pastor Arrested For Holding Church Services In Violation of Health Department Order

AP reports that in Hernando County,  Florida, police arrested Tampa (FL) megachurch pastor Rodney Howard-Browne for holding two Sunday church services with hundreds of people in violation of a county emergency health department order to limit all gatherings to less than ten people. The pastor turned himself into authorities and he was released on $500 bond. The church claims it enforced the 6-foot distancing rule between families and took other precautions as well. Howard-Browne has said the church is an essential services and suggested he would fight the issue in court. [Thanks to Tom Rutledge for the lead.]

Religious Discrimination Suit Dismissed As Moot

In Fiedor v. Florida Department of Financial Services, (ND FL, Feb. 24, 2020), a Florida federal district court dismissed a state government employee's lawsuit alleging religious discrimination.  The court describes the facts of the case:

This case arises from a state agency’s regional manager’s mistaken view that agency policy prohibited employees from discussing religion at work or posting church-related materials on an office bulletin board. After the mistake came to light as a result of this lawsuit, the agency issued an unequivocal correction.  Employees of the regional office now may discuss religion and post church-related materials on the bulletin board. Following a bench trial, this opinion holds moot the plaintiff employee’s challenge to the manager’s now-abandoned position.

11th Circuit: Pensacola Cross May Stay

In Kondrat'yev v. City of Pensacola, Florida, (11th Cir., Feb. 19, 2020), the U.S. 11th Circuit Court of Appeals, in a case with a complicated procedural history, held that a 34-foot cross in Pensacola's Bayview Park does not violate the Establishment Clause. Originally a 3-judge panel of the 11th Circuit, relying on past precedent, reluctantly ordered the cross removed. (See prior posting.)  The case was appealed to the Supreme Court which summarily vacated the judgment and remanded the case to the 11th Circuit for further consideration in light of its decision in American Legion v. American Humanist Assn. (See prior posting).  Now the 11th Circuit has decided that the cross may stay.  However, two of the judges filed a concurring opinion questioning the circuit's precedent on when plaintiffs have standing to bring an Establishment Clause challenge, saying in part:

we should—whether in this case or some other— convene en banc in order to bring our own Establishment Clause standing precedent into line with the Supreme Court’s and to clarify that  offen[se],”“affront[],” and “exclu[sion]” fail to satisfy Article III’s injury-in-fact requirement.

Pensacola News Journal reports on the decision.

11th Circuit OKs Disqualification of Juror Who Heard From A Higher Being

In United States v. Brown, (11th Cir., Jan. 9, 2020), the U.S. 11th Circuit Court of Appeals affirmed the trial court's dismissal of a juror in the fraud case of former Florida representative Corrine Brown. At issue was a statement made by one of the jurors during deliberations. He told the other jurors:

A Higher Being told me Corrine Brown was Not Guilty on all charges.

Judge Rosenbaum agreed with the district court that the juror was not capable of reaching a verdict based only on the evidence at trial. Judge Conway concurred specially

Judge Pryor filed a 62-page dissent, saying in part:

One persistent confusion that has plagued this appeal is the notion that a juror’s belief that he has received divine guidance reflects a form of improper outside influence.... This confusion cannot withstand scrutiny. Indeed, it betrays a failure to reflect on the nature of prayer. ...

Juror No. 13’s statement that God had communicated with him described an internal mental event, not an external instruction.

[Thanks to Doug Velardo for the lead.]

Tampa Conversion Therapy Ban Invalidated On Preemption Grounds

In Vazzo v. City of Tampa, (MD FL, Oct. 4, 2019), a Florida federal district court invalidated a Tampa city ordinance barring licensed psychotherapists and counselors from practicing sexual orientation change efforts on minors. The court avoided the significant constitutional issues posed by the conversion therapy ban, and instead held:

The City Ordinance is preempted by the comprehensive Florida regulatory scheme for healthcare regulation and discipline. Accordingly, the Court strikes the Ordinance under the implied preemption doctrine and grants the Plaintiffs’ motion for summary judgment.

(See prior related posting.) CBS12 reports on the decision.

RLUIPA Allows Inmate To Grow Fist-Length Beard

In Sims v. Inch, (ND FL, Aug. 23, 2019), a Florida federal district court, in a 19-page opinion, extended the U.S. Supreme Court's 2015 holding in Holt v. Hobbs which allowed a Muslim inmate to grow a half-inch beard for religious reasons.  In the case decided last week, the district court held that RLUIPA similarly entitles a Muslim prisoner to grow a fist-length beard (and trim his mustache) when his religious requires it. The court concluded that "a fist-length beard can be accommodated as easily as a half-inch beard-- or nearly so." [Thanks to Glenn Katon for the lead.]

Challenge To Florida Abortion Waiting Period Law Remains In Play

In State of Florida v. Gainesville Woman Care, LLC, (FL App., Aug. 1, 2019), a Florida state appellate court refused to grant summary judgment in a facial challenge to Florida's 24-hour waiting period for abortions. Even though Florida's Supreme Court upheld a temporary injunction against the law's enforcement, the appeals court, in a 2-1 decision, concluded:

Since the temporary injunction phase of this case ... the State has built a case that raises genuine issues of material fact. Among the remaining unresolved issues is the parties’ dispute about the informed consent medical standard of care.

Judge Wolf dissented, saying in part:

Uniquely treating abortions differently from other medical procedures and failing to present evidence that the statute is the least restrictive means to accomplish the purported goals of section 390.0111(3) renders the law unconstitutional. Discouraging people from exercising a constitutionally protected right does not constitute a compelling state interest.

Miami Herald reports on the decision.

Settlement Reached In Christian School's Zoning Fight

A settlement has been reached in Englewood Church of the Nazarene, Inc. v. Sarasota County, Florida. The suit filed in a Florida federal district court in March alleged violations of RLUIPA, the 1st and 14th Amendments and Florida's Religious Freedom Restoration Act. After the school had been operating in a church's building for more than three years, the county demanded that it seek a special exception to continue its operation and levied daily fines on the school. The school spent $10,000 to complete the application, only to have the special exception denied. (See prior posting.)  According to a press release from ADF, in settling the case the county has approved the church's use of its property. A joint stipulation of dismissal (full text) was filed in Florida federal district court on July 22.

11th Circuit: County's Invocation Policy Violates Establishment Clause

In Williamson v. Brevard County, (11th Cir., July 8, 2019), the U.S. 11th Circuit Court of Appeals held that the method used by the Brevard County, Florida Board of County Commissioners to select individuals to deliver pre-meeting invocations violates the Establishment Clause.  The Board's formal resolution provides:

Secular invocations and supplications from any organization whose precepts, tenets or principles espouse or promote reason, science, environmental factors, nature or ethics as guiding forces, ideologies, and philosophies that should be observed in the secular business or secular decision making process involving Brevard County employees, elected officials, or decision makers including the Board of County Commissioners, fall within the current policies pertaining to Public Comment and must be placed on the Public Comment section of the secular business agenda. Pre-meeting invocations shall continue to be delivered by persons from the faith-based community in perpetuation of the Board’s tradition for over forty years.

The court said in part:

In this case, Brevard County has selected invocation speakers in a way that favors certain monotheistic religions and categorically excludes from consideration other religions solely based on their belief systems. Brevard County’s process of selecting invocation speakers thus runs afoul of the Establishment Clause.

Florida Today reports on the decision.

Pastor Sues City Council Over Censorship of His Invocation

A suit was filed in a Florida federal district court this week by a pastor whose invocation at a Jacksonville City Council meeting was cut off by the Council president who thought the invocation was too political.  The complaint (full text) in Gundy v. City of Jacksonville, (MD FL, filed 7/1/2019), alleges that Pastor Reginald Grundy's microphone was cut off 4 minutes into his invocation after he said:

Father, in the name of Jesus, we have a political climate right now that is dividing our community further and further apart because of pride and selfish ambitions. People are being intimidated, threatened, and bullied by an executive branch of our city government while cronyism and nepotism is being exercised in backrooms.

City Council President Aaron Bowman justified his action the next day on Twitter, saying:

I never envisioned a CM (council member) stooping so low to find a pastor that would agree to such a sacrilegious attack politicizing something as sacred as our invocation. It obviously was a last ditch effort to try and revive a failed term and campaign. Fortunately I control the microphone.

Grundy contends that Bowman's action violated his free speech and free exercise rights protected by the U.S. and Florida constitutions. News4JAX reports on the lawsuit.

Supreme Court GVR's Case On Cross In Public Park

Today the U.S. Supreme Court granted the petition for certiorari in Pensacola, Florida v. Kondrat'yev (Docket No. 18-351, GVR 6/28/2019) (Order List), summarily vacated the judgment and remanded the case to the 11th Circuit for further consideration in light of American Legion v. American Humanist Assn. decided earlier this month. (See prior posting.) In the remanded case, the 11th Circuit reluctantly ffirmed a Florida district court's Establishment Clause decision ordering Pensacola to remove a 34-foot Latin cross from a public park. (See prior posting.)

Florida Enacts New School Voucher Program [Corrected]

On May 10, Florida's Governor Ron DeSantis signed Senate Bill 7070 (full text) (legislative history).  Among other things, the bill creates a Family Empowerment Scholarship Program which offers school vouchers to students from low-income families.  The awards may be used at sectarian as well as non-sectarian private schools.  Reporting on the new law, Blog from the Capital points out that the Florida Supreme Court ruled a similar law unconstitutional in 2006.

Certiorari Denied In Priest's Libel Suit Against Diocese

Yesterday the U.S. Supreme Court denied review in Gallagher v. Diocese of Palm Beach, Inc., (Docket No. 18-964, certiorari denied, 4/22/2019) (Order List).  In the case,  a Florida state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a defamation suit brought by a Catholic priest against the diocese in which he served. (See prior posting.) The Florida Supreme Court had denied review in the case.  South Florida Sun Sentinel reports on yesterday's U.S. Supreme Court's denial of certiorari.

Challenge to Florida City's Conversion Therapy Ban May Move Forward

In Vazzo v. City of Tampa, (MD FL, March 5, 2019), a Florida federal district court adopted a magistrate's recommendations (Jan. 30, 2019) concluding that plaintiffs had stated plausible free speech challenges, but dismissed plaintiffs' free exercise challenges, to Tampa, Florida's ban on providing conversion therapy to minors.  The court allowed plaintiffs to move ahead with claims that the ordinance is content-based, amounts to viewpoint discrimination and a prior restraint, and that it is unconstitutionally vague and overbroad.  It also allowed plaintiffs to move ahead with claims that the ordinance violates the right of their minor clients and constituents to receive information.  Plaintiffs also stated a plausible implied pre-emption claim under state law.

Court Refuses To Enjoin Florida Cities' Conversion Therapy Bans

In Otto v. City of Boca Raton, Florida, (SD FL, Feb. 13, 2019), a Florida federal district court refused to grant a preliminary injunction to prevent the cities of Boca Raton and Palm Beach, Florida from enforcing their ordinances that prohibit the use by medical professionals of sexual orientation change therapy on minors.  In a 60-page opinion, the court held that plaintiffs are unlikely to succeed on their free speech, prior restraint, vagueness or ultra vires claims.

Florida Governor Acts In Response To Airbnb Israel West Bank Boycott

As previously reported, last November Airbnb under pressure from Palestinian officials, anti-settlement advocates and human rights groups announced that it is removing listings for rentals in Israeli settlements in the West Bank. Now, in a Jan. 15, 2019 letter (full text), Florida Governor Ron DeSantis has responded to the Airbnb action by ordering the state Department of Management Services to cease reimbursements to state employees for their stays arranged through Airbnb while on official state business. Also all state contracts must now bar such reimbursements to contractors. A January 15 press release by the Governor, calling the "Boycott, Divestment, Sanctions" movement "nothing more than a cloak for anti-Semitism," announced, several initiatives, including $2 million in funding for security for Jewish day schools, that he said makes Florida the "most Israel-friendly state in the country."

Mobile Home Park Seeks To Require Resident To Remove Portrait of Virgin Mary

In Bradenton, Florida, a mobile home park, Bradenton Tropical Palms, has filed a demand for arbitration with the state's Division of Florida Condominiums, Timeshares and Mobile Homes in an attempt to require an 85-year old Catholic woman to remove a portrait of the Virgin Mary from the outside of her mobile home.  York Dispatch reports that the woman commissioned an artist to create the plywood painting which she installed to replace a window.  She contends that the park's enforcement attempt is anti-Catholic, and that she was targeted because of her religious beliefs. Management says she has failed to comply with park rules regarding her window replacement-- her filed paper work did not include a request for a change in appearance or design.

Two Dioceses Sued Over Transfer of Known Sex Abuser Priest

Tampa Bay Times reported yesterday on a lawsuit filed against the Catholic Diocese of St. Petersburg (Florida) and the Long Island, New York Diocese of Rockville Centre. The suit was filed by Mark Cattell who says that as a 9-year old in 1981 he was sexually abused multiple times by a priest, Robert Huneke, after Huneke was transferred to Christ the King Church in Tampa from a church in Long Island where he had sexually abused a teenager over a number of years.