Suit Challenges County's Limiting Jail Chaplain Position to Those With Christian Beliefs

Suit was filed last week in a Maryland federal district court by a Muslim volunteer jail chaplain challenging the requirements imposed by Prince Georges County, Maryland on applicants for a paid jail chaplain position. The complaint (full text) in Bridges v. Prince Georges County, Maryland, (D MD, filed 5/27/2021), alleges that provisions of the county's agreement with Prison Ministry of America violate the Establishment and Free Exercise Clauses:

Defendant PG County illegally required all applicants to sign a so-called “Statement of Applicant’s Christian Faith.”

... [The Statement] requires applicants to affirm that they “believe in one God, Creator and Lord of the Universe, the co-eternal Trinity, Father, Son, and Holy Spirit,” that “Jesus Christ, God’s Son, was conceived by the Holy Spirit, born of the Virgin Mary, lived a sinless life, [and] died a substitutionary atoning death on the cross,” and that “the Bible is God’s authoritative and inspired Word…without error in all its teachings, including creation, history, its own origins, and salvation.”

CAIR issued a press release announcing the filing of the lawsuit. AP has additional background on the lawsuit.

Suit Against Chicago Schools Over Transcendental Meditation Program Can Move Ahead In Part

In Separation of Hinduism from Our Schools v. Chicago Public Schools, (ND IL, May 21, 2021), plaintiffs challenged Chicago Public Schools' "Quiet Time" program which was led by a Transcendental Meditation instructor. They claim that the sessions contained elements of Hinduism in them. The court dismissed claims of some of the plaintiffs for lack of standing, and dismissed claims against the private foundation and the University of Chicago which helped implement the program. One of the plaintiffs, a former student who was required to participate in the program, was found to have standing to bring Establishment and Free Exercise clause claims as well as a claim under the Illinois Religious Freedom Restoration Act against the Chicago public schools. His father also had standing on 1st Amendment claims arising before his son's 18th birthday. The court said in part:

[E]ven if the Williamses were seeking only nominal damages, they would have standing to sue. In a case decided after the parties' briefs were submitted, the Supreme Court held that "a request for nominal damages satisfies the redressability element of standing where a plaintiff's claim is based on a completed violation of a legal right." Uzuegbunam v. Preczewski, 141 S. Ct. 792, 802 (2021).

6th Circuit Rejects Free Exercise Challenge To Corporal Punishment Limitations

In Clark v. Stone, (6th Cir., May 19, 2021), the U.S. 6th Circuit Court of Appeals rejected a challenge by fundamentalist Christian parents that a child abuse investigation infringed their free exercise and due process rights. The parents believe that their religion requires them to use corporal punishment when necessary upon their children. The investigation led to a Juvenile Court order prohibiting the parents from physically disciplining their children. The court said in part:

While we can state with ease that there is a general right to use reasonable corporal punishment at home and in schools, that right is not an unlimited one. The Clarks have offered no authority that imposing corporal punishment that leaves marks is reasonable and is therefore a protected right....

... [A]lthough targeting religious beliefs is never acceptable, a generally applicable law that incidentally burdens one’s free exercise rights will typically be upheld....

Furthermore, any challenge to this regulation would likely survive strict scrutiny.... Here, the state certainly has a compelling interest in protecting children from physical abuse, and the regulation is written such that it explicitly does not prohibit corporal punishment that does not leave marks, bruises, etc. Thus, the regulation is narrowly tailored....

Hawaii Mask Mandate Did Not Violate Protester's Free Exercise Rights

 In Denis v. Ige, (D HI, May 12, 2021), a Hawaii federal district court rejected challenges to Hawaii's COVID-19 mask requirements. Plaintiff, who was arrested at a protest for failing to wear a mask, asked for $632 million in damages.  Among other challenges, he asserts that his free exercise rights were violated:

He appears to contend that because the Mask Mandates “infringe[] upon [his] right to breathe oxygen without restriction,” which is “in violation [of his] covenant with his Creator of many names,” the Mask Mandates inhibit his religious practices.

The court concluded that plaintiff failed to allege that the mask mandate imposed a substantial burden on his practice of religion, and the mandate survives rational basis review. The court also rejected other claims, including free speech and freedom of association claims.

Church Sues Over Massachusetts COVID Regulations

Suit was filed yesterday in a Massachusetts federal district court by a church challenging the state's COVID-19 reopening regulations. The complaint (full text) in New Life South Coast Church v. Baker, (D MA, filed 5/10/2021), alleges in part:

Massachusetts’ phased COVID-19 reopening regulations, both as drafted by the Commonwealth and as implemented by the City, single out places of worship for differential and disfavored treatment. Under those regulations, restaurants, theaters, public transit, and other places of public gathering have limited or no restrictions on capacity, beyond the practical constraints of social distancing, while places of worship must follow more burdensome capacity restrictions. In addition, the regulations single out places of worship for special disfavor by barring “communal gatherings” before and after the religious service—a restriction that applies to no other institution or activity, and that purports to regulate how Massachusetts citizens may exercise religion.

First Liberty issued a press release announcing the filing of the lawsuit. 

Suit Challenges Connecticut Elimination of Religious Exemption To Immunization Requirement

Suit was filed last week in a Connecticut federal district court challenging Connecticut's recent elimination of religious exemptions to school immunization requirements.  The suit was brought by three parents-- Greek Orthodox, Catholic and Muslim-- and two advocacy groups. The complaint (full text) in We the Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (D CT, filed 4/30/2021), contends that the repeal violated plaintiffs' rights to free exercise of religion, privacy and medical freedom, equal protection, child rearing, as well as of the Individuals With Disabilities Education Act. Bronx News 12 reports on the lawsuit.

Supreme Court Refuses Original Suit By Texas Against California

Yesterday, the U.S. Supreme Court in Texas v. California, (Sup. Ct., April 26, 2021), (SCOTUSblog case page) denied the state of Texas leave to invoke the Supreme Court's original jurisdiction to file a bill of complaint against the state of California. USA Today described the background:

California passed a law in 2016 prohibiting taxpayer-funded travel – such as for state employees to attend conferences – to any state that doesn’t ban discrimination on the basis of sexual orientation. Texas law allows foster-care and adoption agencies to deny same-sex couples on religious grounds.

Texas took California directly to the Supreme Court last year, asserting the travel ban was "born of religious animus" and that it violates the Constitution....

The justices had been considering whether to take the suit for months. The court did not explain its decision not to hear the case.

Justice Alito, joined by Justice Thomas, dissented, saying in part:

The practice of refusing to permit the filing of a complaint in cases that fall within our original jurisdiction is questionable, and that is especially true when, as in this case, our original jurisdictional is exclusive. As the history recounted above reveals, the Court adopted this practice without ever providing a convincing justification....

Texas raises novel constitutional claims, arguing that California’s travel ban violates the Privileges and Immunities Clause, U. S. Const., Art. IV, §2, cl. 1, the Commerce Clause, Art. I, §8, cl. 3, and the Equal Protection Clause, Amdt. 14, §1. I express no view regarding any of those claims, but I respectfully dissent from the Court’s refusal even to permit the filing of Texas’s complaint.

Certiorari Denied In Suit Over California Curriculum On Hinduism

The U.S. Supreme Court today denied review in California Parents for the Equalization of Educational Materials v. Torlakson, (Docket No. 20-1137, certiorari denied 4/26/2021). (Order List). In the case, the U.S. 9th Circuit Court of Appeals upheld the dismissal of a suit claiming that California's History-Social Science Standards and Framework incorrectly describe Hinduism and treat it negatively in relation to the treatment of other religions.

Vermont State School Board Orders Payment Of Tuition To Religiously Affiliated Schools

In In re Appeal of Valente, (VT State Bd. Educ., April 21, 2021), the Vermont State Board of Education, in appeals by three families, ordered local school boards in districts without public high schools to pay students' tuition to religiously affiliated high schools. Vermont law requires school districts that do not have public high schools to pay tuition for students to attend another public or private school. The Vermont Supreme Court in Chittenden Town School Dist. v. Dept. of Educ.,(1999) limited the ability of districts to pay tuition to religious schools, while the U.S. Supreme Court has held that the 1st Amendment bars exclusion of religiously affiliated schools from general aid programs. The Board of Education said in part:

The type of use restriction and certification discussed in Mitchell may provide a reasonable option going forward for harmonizing the state and federal constitutional requirements. School districts ... could ask all ... schools to certify that public tuition payments will not be used to fund religious instruction or religious worship. Such an approach would place all independent schools on an equal footing; regardless of perceived or actual religious affiliation, all independent schools would be asked to provide the same assurance regarding the use of public tuition payments. No school would be excluded based solely on its religious affiliation. And no school would be required to “refrain from teaching religion.” ... Schools themselves would be left to decide whether to accept public tuition payments that could not be used to fund religious worship or religious instruction. 

The Board offers these observations with the caveat that this is not a rulemaking proceeding and it cannot, in this context, provide any binding direction to school districts. Further, as explained above, constitutional questions remain unsettled. As litigation moves through the courts, the permissible legal parameters may become clearer. Ultimately the courts will have to resolve whether the use restriction that Chittenden requires can co-exist with First Amendment requirements.

VTDigger reports on the decision.

Lawsuit Claims South Carolina's Blaine Amendment Is Unconstitutional

Suit was filed yesterday in a South Carolina federal district court asking the court to declare that South Carolina's Blaine Amendment (Art. XI, Sec. 4 of the South Carolina Constitution) violates the Equal  Protection and Free Exercise clauses of the U.S. Constitution.  The complaint (full text) in Bishop of Charleston v. Adams, (D SC, filed 4/14/2021) reads in part:

1. In response to the COVID-19 pandemic ravaging our state and nation, the U.S. Congress and South Carolina General Assembly have appropriated substantial sums of public funds to provide relief to local governments, employers, non-profit organizations, schools, and colleges.

2. However, because the South Carolina Constitution contains a provision, a so-called Blaine Amendment, which prohibits public funds from being allocated to private or religious schools, the schools and universities represented by Plaintiffs are legally prohibited from accessing these relief funds.

3. Because the Blaine Amendment was born in bigotry and prejudice based on race and religion, it violates the equal protection and free exercise clauses of the U.S. Constitution, and should no longer bar Plaintiffs’ schools from equal access to these essential relief funds.

The complaint goes on to trace the specific history of the Blaine Amendment in South Carolina.  Plaintiffs in the case are a Catholic diocese that operates 33 schools and an association of private colleges. The Center Square reports on the lawsuit.

Supreme Court Enjoins, Pending Appeals, California Limits On In-Home Worship Services

Late Friday night, in another case on its so-called "shadow docket", the U.S. Supreme Court in Tandon v. Newsom,  (Sup. Ct., April 9, 2021), granted an injunction preventing enforcement during the appeal process of California's COVID-19 order limiting religious gatherings in homes to three households. In a 5-4 decision, the majority in a 4-page per curiam opinion outlined important principles to be applied in deciding free exercise claims, saying in part:

First, government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise....

Second, whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue....

California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.

Justice Kagan filed a 2-page dissent, joined by Justices Breyer and Sotomayor. They said in part:

The First Amendment requires that a State treat religious conduct as well as the State treats comparable secular conduct. Sometimes finding the right secular analogue may raise hard questions. But not today. California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at home gatherings of all kinds, religious and secular alike. California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons—and thus unlike at-home secular gatherings, the obvious comparator here.

Chief Justice Roberts also dissented, without filing an opinion. Volokh Conspiracy blog has more on the decision.

Idaho Supreme Court: Marijuana Ban Does Not Violate Free Exercise Rights

In State of Idaho v. Heath, (ID Sup. Ct., April 8, 2021), the Idaho Supreme Court held that the state's prohibition of marijuana does not violate defendant-appellant's right to religious liberty.  The issue arose as appellant attempted to recover a pipe and bong made from elk antler, seized as contraband (along with marijuana), during a police traffic stop. The court said in part:

... Heath contends that the provisions of the [Controlled Substances Act] prohibiting the use of marijuana are not neutral and generally applicable. However, Heath's arguments do not support his conclusion. Certainly, the prohibition of marijuana under the CSA impairs Heath's ability to consume marijuana, which he attests is an important element of his belief system.... [W]e will not question the sincerity of his beliefs. But the impact of the CSA on Heath's ability to legally practice his beliefs is not the dispositive issue. Rather, the issue is whether the CSA proscribes religious use of marijuana while permitting non-religious use, or has been designed so that it applies primarily to religiously motivated conduct..... Heath has made no such argument.

Churches' Challenge to Minnesota COVID Orders Moves Ahead

In Northland Baptist Church of St. Paul, Minnesota v. Walz, (D MN, March 30, 2021), a Minnesota federal district court refused to dismiss at the pleading stage complaints by two churches and a pastor that Minnesota's COVID-19 orders treat religious services less favorably than comparable secular activities. The decision also dealt extensively with several procedural and jurisdictional issues, as well as with other challenges by business plaintiffs.

Court Upholds NY Law Barring Discrimination Against Employees Because Of Reproductive Health Decisions

In Slattery v. Cuomo, (ND NY, March 31, 2021), a New York federal district court dismissed free exercise, free speech, freedom of association and vagueness challenges to a New York Labor Law §203-e  which prohibits employers from discriminating or taking retaliatory action against an employee because of the person's reproductive health decision making. The law was challenged by a pro-life crisis pregnancy center which required its employees to agree with, adhere to and convey the Catholic view on abortion and sexual relations outside of marriage. The court concluded that the law does not target the Catholic religion in violation of the free exercise clause. Rejecting plaintiffs' free speech challenge, the court said in part:

Section 203-e does not serve to limit any of Plaintiffs’ advocacy against abortion, promotion of certain religious views, and public arguments for particular versions of sexual morality. The statute does not prevent the Plaintiffs, who provide medical information to pregnant women, from telling those women that they should not get abortions, urging them not to use contraception, or telling them about Plaintiffs’ religious beliefs. The statute simply prohibits employers from taking employment action based on the reproductive health decisions of an employee or potential employee. Hiring, firing, or refusing to hire an employee is conduct, not speech, and the law does not implicate Plaintiffs’ First-Amendment rights in that.

Minister Sues To Hold Good Friday Vigil On U.S. Capitol Grounds

On Tuesday, a complaint was filed in D.C. federal district court by a Presbyterian minister who wants to host a prayer vigil on theWestern Terrace of the U.S. Capitol for Good Friday, as he did in 2020.  He was refused a permit because the Capitol grounds have been fenced off since the January 6 attack on the Capitol.  Plaintiff alleges that the denial of a permit violates his free speech, freedom of assembly, free exercise and other rights.  The complaint (full text) in Mahoney v. Pelosi, (D DC, filed 3/30/2021), alleges in part:

In closing the sidewalks and public areas around the Capitol, including the Lower Western Terrace Plaintiff seeks to utilize, Defendants have effectively created a no-speech zone around the nations Capitol. Defendants prevent any First Amendment activities on/in these areas, even though no specific threat to the Capitol has been identified in justification....

Defendants’ restrictions have specifically and explicitly targeted Plaintiff’s religious and “faith based” service and are thus not neutral on their face. Defendants have prohibited Plaintiff’s religious gathering while exempting a laundry list of other activities that occur at the Capitol, including media events, non-religious public gatherings, and various political and other events.

Fox News reports on the lawsuit. [Thanks to Scott Mange for the lead.]

North Dakota Enacts Law To Limit Restrictions On Religious Exercise During Health Emergencies

On March 29, North Dakota Governor Doug Burgum signed into law Senate Bill 2181 (full text) which limits the authority of the State Health Officer and the governor to issue disease control or other emergency orders that restrict the free exercise of religion.  Under the new law, an order may not:

(1) Substantially burden a person's exercise of religion unless the order is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest;

(2) Treat religious conduct more restrictively than any secular conduct of reasonably comparable risk, unless the government demonstrates through clear and convincing scientific evidence that a particular religious activity poses an extraordinary health risk; or

(3) Treat religious conduct more restrictively than comparable secular conduct because of alleged economic need or benefit.

Williston Herald reported on the legislature's passage of the bill.

Virginia Public School Guidance On Transgender Students Is Challenged

Suit was filed yesterday in a Virginia state trial court challenging a guidance document titled Model Policies on the Treatment of Transgender Students In Virginia's Public Schools developed by the Virginia Department of Education (DOE). The guidance document calls for safe, supportive and inclusive school environments for transgender students. The lawsuit filed by a parent and two advocacy organizations contends that during the adoption process, the Department of Education failed to respond to a number comments raising constitutional and other legal objections to the proposed guidance document. The complaint (full text) in Family Foundation v. Virginia Department of Education, (VA Cir. Ct., filed 3/30/2021) alleges that the document violates free speech, free exercise, privacy, equal protection, and parental rights. Family Foundation issued a press release announcing the filing of the lawsuit. AP reported on the lawsuit.

Anti-Abortion Protesters Lose Challenge To D.C.'s Defacement Ordinance

In Frederick Douglass Foundation, Inc. v. District of Columbia,  (DDC, March 26, 2021), the federal district court for the District of Columbia refused to enjoin enforcement of D.C.'s Defacement Ordinance against two groups that organized an anti-abortion demonstration. Protesters attempted to paint or chalk the streets with their slogan "Black Pre-Born Lives Matter." The court rejected plaintiffs' free speech, equal protection, RFRA and free exercise claims. Plaintiffs claim that the Ordinance is enforced in a viewpoint discriminatory manner in that "Black Lives Matter" and "Defund the Police" protesters were not prosecuted. The court said in part, however:

It seems far more plausible, rather, that law enforcement opted against enforcing the Ordinance [against Black Lives Matter protesters] in light of the foreseeable risks of intervention in the moment — e.g., inflaming what may well have already been a tense, fervent, and chaotic protest scene.

DC's Capacity Restrictions On Churches Held Invalid

In Roman Catholic Archbishop of Washington v. Bowser, (D DC, March 25, 2021), the D.C. federal district court granted a preliminary injunction against D.C.'s COVID-19 capacity restrictions on houses of worship, finding that they violate the 1st Amendment as well as RFRA. The limit of the lesser of 25% or 250 congregants particularly affects the  Basilica of the Shrine of the Immaculate Conception which seats at least 3000 people. The court said in part:

In practical terms, this means that the Archdiocese’s churches must stop admitting parishioners once they become a quarter full, but Whole Foods or Target can take in as many customers as they wish while complying with social-distancing requirements. “[O]nce a State creates a favored class of businesses, as [the District] has done in this case, [it] must justify why houses of worship are excluded from that favored class.”....

The District’s restrictions are also problematic because the 250-person cap uniquely burdens churches. The Mayor’s order explained that the District set the hard cap at 250 based on the number of persons that “the largest restaurant” could serve at 25 percent capacity....   But as the District admits, “no restaurant in the District has a room that can hold 1,000 people.”

Courthouse News Service reports on the decision.

6th Circuit: Prof Has 1st Amendment Right To Refuse To Call Transgender Student By Preferred Pronoun

In Meriwether v. Hartop, (6th Cir., March 26, 2021), the U.S. 6th Circuit Court of Appeals held that Shawnee State University violated the free speech and free exercise rights of a philosophy professor when the school insisted that the Professor address a transgender student by her preferred gender pronoun. The professor objected because of his Christian religious beliefs that God created human beings as either male or female at the time of conception and this cannot be changed. Upholding plaintiff's free speech rights, the court said in part:

Never before have titles and pronouns been scrutinized as closely as they are today for their power to validate—or invalidate—someone’s perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity. …  In short, when Meriwether waded into the pronoun debate, he waded into a matter of public concern….

We begin with “the robust tradition of academic freedom in our nation’s post-secondary schools.” … That tradition alone offers a strong reason to protect Professor Meriwether’s speech. After all, academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

The court also reversed the trial court's dismissal of Prof. Meriwether's free exercise claim:

Meriwether has plausibly alleged that Shawnee State’s application of its gender-identity policy was not neutral for at least two reasons. First, officials at Shawnee State exhibited hostility to his religious beliefs. And second, irregularities in the university’s adjudication and investigation processes permit a plausible inference of non-neutrality.

Inside Higher Ed reports on the decision.