Moving of Confederate Monument Did Not Violate Plaintiffs' Religious Rights

In Edgerton v. City of St. Augustine, (MD FL, March 20, 2023), a Florida federal district court rejected plaintiffs' challenges to the city's moving a monument honoring Confederate Civil War veterans from City Park to a new location.  Among other things, the court rejected Establishment Clause and Free Exercise challenges, saying in part:

Plaintiffs allege that "the message [the monument] conveyed has changed over time[,] which demonstrates why the removal of it. . . appears hostile and offensive to those who use it for moments of respect, prayer, and remembrance of those long gone." ... Plaintiffs do not allege the City considered any of Plaintiffs' religious beliefs when it decided to remove and relocate the monument. Additionally, Plaintiffs provide no allegations of historical practices or understandings of similar instances of a city removing a monument, and such removal amounting to an Establishment Clause violation.

... Mr. Edgerton "expressed his religious beliefs by paying respect to the dead [soldiers] by praying at and protecting the 'empty tomb' of his 'Southern family[.]"... Mr. Ross alleges that he "had participated in prayer at the site" of the monument, but since it has been relocated, his ability to continue doing so is "nearly impossible."... Ms. Pacetti alleges that she "has freely exercised her right to Christian memorial expression of her deceased family member at the Plaza next to the [m]onument[.]"... Mr. Parham alleges that he "continued to visit the [m]onument after his father's death . . . exercising his religious memorial expressions.",,,

Accepting these allegations as true, Plaintiffs do not state a plausible violation of their Free Exercise rights. Plaintiffs can still exercise any and all of the beliefs they have alleged.... Plaintiffs do not allege facts that the City relocated the monument because of Plaintiffs' religious beliefs....

Certiorari Denied in Challenge by Preacher to University's Speaker Permit Rule

The U.S. Supreme Court today denied review in Keister v. Bell, (Docket No. 22-388, certiorarari dened, 3/20/2023). (Order List.) In the case, the U.S. 11th Circuit Court of Appeals rejected a challenge to the University of Alabama's policy that requires a permit in order for a speaker to participate in expressive conduct on University grounds, with an exception for “casual recreational or social activities.” The challenge was brought by a traveling evangelical preacher who, with a friend, set up a banner, passed out religious literature and preached through a megaphone on a campus sidewalk. (See prior posting.) Links to filings with the Supreme Court in the case are available here.  Reuters reports on the Court's action. [Thanks to Thomas Rutledge for the lead.]

Suit Challenges Connecticut's Elimination of Religious Exemption from School Vaccination Requirement

Suit was filed last week in a Connecticut federal district court by a Christian preschool and the church that sponsors it challenging Connecticut's removal of religious exemptions from its statute requiring various vaccinations for preschool children. The complaint (full text) in Milford Christian Church v. Russell-Tucker, (D CT, filed 3/6/2023) alleges that the requirement violates plaintiffs' free exercise, free speech, freedom of association, equal protection, and child rearing rights. It alleges in part:

63. Conn. Gen. Stat. § 10-204a denies a generally available benefit – education– to children if their parents do not abandon their religious beliefs while affording the same benefit to parents and children who assert a medical exemption.

64. Adding insult to injury, Conn. Gen. Stat. § 10-204a prevents parents from seeking alternative education options for their children by applying the same mandate to private schools, daycares, and pre-schools, including those operated by churches and religious organizations.

65. In other words, Conn. Gen. Stat. § 10-204a forces parents to either renounce their religious beliefs and vaccinate their children or homeschool their children– something that many parents cannot do – thus depriving them any educational opportunities.

Christian Post reports on the lawsuit.

6th Circuit: Employees Have No Free Exercise Claim Against Company That Denied Them a Religious Exemption from Vaccine Mandate

In Ciraci v. J.M. Smucker Company, (6th Cir., March 14, 2023), the U.S. 6th Circuit Court of Appeals held that employees of a company that sells food products to the federal government may not assert a 1st Amendment free-exercise claim against the company for denying them a religious exemption from a COVID vaccine mandate imposed by the company after the federal government required government contractors to do so. The court said in part:

Constitutional guarantees conventionally apply only to entities that exercise sovereign power, such as federal, state, or local governments.... Smucker’s may be a big company. But it is not a sovereign. Even so, did Smucker’s become a federal actor—did it exercise sovereign power?—for purposes of this free-exercise claim when it sold products to the federal government and when it imposed the vaccine mandate because the federal government required it to do so as a federal contractor? No, as the district court correctly held. We affirm....

Smucker’s does not perform a traditional, exclusive public function; it has not acted jointly with the government or entwined itself with it; and the government did not compel it to deny anyone an exemption. That Smucker’s acted in compliance with a federal law and that Smucker’s served as a federal contractor—the only facts alleged in the claimants’ complaint—do not by themselves make the company a government actor.

The court went on to suggest that even if the company were a state actor, there may be no cause of action against them:

To the extent the claimants seek damages directly under the First Amendment against a federal official, they must rely on the kind of implied cause of action created by Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). But extending Bivens is “disfavored” ...

That leaves claimants’ demands for a declaratory judgment, reinstatement, and other equitable relief. In equity, it is true, claimants sometimes may “sue to enjoin unconstitutional actions by state and federal officers” even in the absence of a statutory cause of action.... But today’s claimants seek more than a prohibitory injunction. They seek reinstatement and other affirmative relief. It is not clear whether, as a matter of historical equitable practice, we may infer, imply, or create a cause of action for such relief. But because the parties have not briefed or argued these points and because they do not go to our jurisdiction, we need not decide them today.

Good News Clubs Sue to Get Access for After School Programs

Suit was filed last week in a Rhode Island federal district court by the Good News Clubs contending that their 1st and 14th Amendment rights were violated when Providence, RI school officials blocked approval of their use of school facilities for after-school programs. The complaint (full text) in Child Evangelism Fellowship of Rhode Island, Inc. v. Providence Public School District, (D RI, filed 3/10/2023) alleges in part:

CEF Rhode Island and its proposed Good News Clubs are similarly situated to the other organizations the District allows to host their afterschool programs in District elementary schools because all the organizations provide teaching and activities to develop things like confidence, character, leadership, and life skills in their participants. CEF Rhode Island, however, offers its programming from a Christian religious viewpoint, while the other organizations offer their similar programming from a nonreligious viewpoint....

The increasingly burdensome requirements the District has imposed on CEF Rhode Island as conditions to access for its Good News Clubs are discriminatory and pretextual disguises for the District’s hostility towards CEF Rhode Island’s Christian identity, message, and viewpoint.

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

Suit Challenges California's Exclusion of Religious Schools from Funding for Students With Disabilities

Suit was filed yesterday in a California federal district court by six Jewish parents and two Orthodox Jewish day schools challenging the exclusion of sectarian schools from receiving funds made available to California under the Individuals with Disabilities Education Act. The complaint (full text) in Loffman v. California Department of Education, (CD CA, filed 3/13/2023), alleges in part:

12. Defendants’ administration and implementation of California law excludes Plaintiffs from the generally available public funding necessary to provide an education to students with disabilities.

13. Plaintiffs merely seek to educate and care for children with disabilities and practice their Jewish faith on an equal basis with other California citizens. 

14. As the Supreme Court recently held, they are entitled to equal treatment because “religious schools and the families whose children attend them . . . ‘are members of the community too.’” Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2262 (2020). Excluding Plaintiffs from government programs—for no other reason than the fact that they are  religious—is “odious to our Constitution and cannot stand.”

Becket issued a press release announcing the filing of the lawsuit.

COVID Order Violated Priest's Free Exercise Rights

 In Urso v. Mohammad, (D CT, March 10, 2023), a Catholic priest sued a town's health director over COVID orders that cancelled religious gatherings and congregational prayers. The court concluded that the health Directive violated plaintiff's free exercise rights, but left for trial the question of whether plaintiff suffered an injury, saying in part:

[N]ot all secular businesses in the Town of Orange were closed, and the Directive itself is unquestionably stricter than the Governor’s Executive Orders, which imposed capacity limits on religious institutions in line with those imposed on other secular businesses, and never cancelled all religious services completely.... In Agudath Israel, the Second Circuit applied strict scrutiny when businesses such as retail stores, news media, financial services, and construction were not as restricted as houses of religious worship.... Thus, the Second Circuit has already made the determination there is no meaningful difference between a retail store and a house of worship in terms of COVID-19 risk.... Regardless of how well intentioned it might have been and the difficult circumstances under which it was issued, the Directive “expressly singles out religion for less favored treatment” by subjecting religious services to complete cancellation while not imposing such strict measures on other businesses regardless of their size or the length of time people were gathering there ... and is thus subject to strict scrutiny....

The Court determines therefore as a matter of law both that the Directive is subject to strict scrutiny, and that it fails that scrutiny, thus violating the First Amendment....

The court concluded that plaintiff's equal protection claim is tied to the free exercise claim.  The court found that claims for injunctive and declaratory relief were now moot. It rejected plaintiff's Establishment Clause claim saying that the health directive did not "establish religion or espouse a religious message." It rejected plaintiff's free speech and freedom of assembly claims, relying on the Supreme Court's 1905 decision in Jacobson v. Massachusetts.

Rastafarian Police Officer's Free Exercise Claim May Move Ahead

In Taylor v. City of New Haven, (D CT, March 10, 2023), a Rastafarian police officer sued claiming religious and disability discrimination after being denied an exemption from the police department's grooming policy. While dismissing a half dozen of plaintiff's claims largely on procedural and jurisdictional grounds, the court permitted him to move ahead with his First Amendment free exercise claim for damages, saying in part:

The plaintiff has alleged facts sufficient to show that the general order at issue burdened his religious conduct..., and that the order lacked general applicability, both because it invited individualized exemptions... and because the City of New Haven permitted secular conduct contrary to the general order.... Thus, the plaintiff has alleged facts which, if true, demonstrate that the general order is subject to strict scrutiny and that the government can achieve its interests in a manner that does not burden religion. Consequently, for purposes of this stage of the case, the plaintiff has shown that he had a right protected by the First Amendment.

Christian University Sues Over Termination of Student Teaching Arraangements

Suit was filed yesterday in an Arizona federal district court by a Christian university alleging that a public school district violated free exercise, free speech and other federal constitutional provisions as well as Arizona law when it terminated the student teacher agreement between the university and the school district.  The complaint (full text) in Arizona Christian University v. Washington Elementary School District No. 6, (D AZ, riled 3/9/2023) alleges in part:

For the last eleven years, Arizona Christian and Washington Elementary School District, the largest elementary school district in Arizona, had a mutually beneficial partnership where students in Arizona Christian’s Elementary Education degree programs would student teach and shadow teachers in the School District....

Despite there being zero complaints about an Arizona Christian student teacher or alumnus, the School District decided to terminate its relationship with Arizona Christian and its students solely because of their religious status and beliefs on biblical marriage and sexuality.

ADF issued a press release announcing the filing of the lawsuit.

UPDATE: A settlement agreement (full text) was reached on May 3, 2023, under which the parties will enter a revised student teacher agreement. World News Group reports on the settlement.

European Court Says Russian Regulation of Proselytizing Violated Human Rights Convention

In Ossewaarde v. Russia, (ECHR, March 7, 2023), the European Court of Human Rights held that legal restrictions imposed by Russia in 2016 on religious proselytizing violated the rights of a Baptist pastor who was a U.S. national living in Russia.  The court found violations of Articles 9 (freedom religion) and 14 (prohibition of discrimination) of the European Convention on Human Rights.  The court said in part:

By requiring prior authorisation from a duly constituted religious association and excluding private homes from the list of places where the right to impart information about religion may be exercised, the new regulation has left no room for people in the applicant’s situation who were engaged in individual evangelism. The requirement of prior authorisation also eliminated the possibility of spontaneous religious discussion among members and non-members of one’s religion and burdened religious expression with restrictions greater than those applicable to other types of expression.

...  [S]o long as the new restrictions did not regulate the content of the religious expression or the manner of its delivery, they were not fit to protect society from “hate speech” or to shield vulnerable persons from improper methods of proselytism which ... could have been legitimate aims for the regulation of missionary activities.... [T]he Court finds that the need for such new restrictions, in respect of which the applicant was sanctioned for non-compliance, has not been convincingly established. Accordingly, the interference with the applicant’s right to freedom of religion on account of his missionary activities has not been shown to pursue any “pressing social need”....

While the application of the additional penalty of expulsion exclusively to non-nationals may be objectively justified by the fact that it cannot be applied to nationals, the Court finds no justification for the considerably higher minimum fines applicable to non‑nationals in respect of the same offence. The difference in treatment also appears hard to reconcile with the provisions of Russia’s Religions Act which posits that non-nationals lawfully present in Russia may exercise the right to freedom of religion on the same conditions as Russian nationals.

The court also issued a press release summarizing the decision.

Objectors To Religious Motto on License Plates May Cover the Motto

In Griggs v. Graham, (SD MS, March 2, 2023), plaintiffs objected to the design of the default Mississippi license plates that included the state seal, a part of which was the motto "In God We Trust."  Specialty plates that carry alternative designs are more expensive, and are not available at all for trailers, RVs and motorcycles. The court, relying on the U.S. Supreme Court's 1977 decision in Wooley v. Maynard, refused to require the state to issue separate non-religious license plates, saying in part:

[A]s in Wooley, the Plaintiffs have articulated a violation of their First Amendment free speech rights. They cannot be compelled to display “In God We Trust” on their license plate. 

In Wooley, however, the Supreme Court did not require New Hampshire to create a blank license plate for persons who objected to “Live Free or Die.” No, the remedy in that case was an injunction blocking New Hampshire “from arresting and prosecuting [the Wooleys] at any time in the future for covering over [the objectionable] portion of their license plates... [T]he Supreme Court put the burden of compliance on the objectors—they were allowed to cover up the message—and then enjoined the state criminal law that penalized that action....

In Count II of their Amended Complaint, the Plaintiffs allege that the State has breached its duty of neutrality by elevating persons who believe in God while simultaneously “demonstrat[ing] . . . hostility toward the Plaintiffs and other Mississippi car owners who lack religious beliefs.”...

The Plaintiffs no doubt believe that more recent free exercise cases promise them greater rights to neutrality than this single 1977 case....  [I]f their desire is to overturn Wooley, they will have to seek that relief from a higher court.

10th Circuit: Abortion Clinic Sidewalk Demonstrators Lose Challenge to Disturbing-the-Peace Ordinance

In Harmon v. City of Norman, Oklahoma, (10th Cir., March 1, 2023), the U.S. 10th Circuit Court of Appeals affirmed a trial court's dismissal of challenges to the city's disturbing-the-peace ordinance brought by abortion clinic sidewalk demonstrators who preach to clinic visitors in an attempt to persuade them against abortion. The court said in part:

The demonstrators filed a three-count complaint, seeking relief from the City and Officer Jeff Robertson under 42 U.S.C. § 1983. The complaint asserted as-applied and facial challenges to the ordinance under the Free Speech Clause, Free Exercise Clause, and the Due Process Clause of the U.S. Constitution, and further alleged that Norman failed to train its police officers. The complaint also requested preliminary and permanent injunctions to stop the City from enforcing the ordinance....

We hold that § 15-503(3) is constitutional under the Free Speech Clause as applied to the demonstrators. The demonstrators have not shown that the subsection was content-based, insufficiently tailored, or fatal to their sidewalk ministry....

The district court determined that rational-basis deference applied [to the Free Exercise claim] because the demonstrators presented no evidence that § 15-503(3) was religiously motivated. We agree....

The court went on to conclude that plaintiffs lacked standing to bring facial challenges to several portions of the Ordinance. It also concluded that the Ordinance's ban on "loud or unusual sounds" is not unconstitutionally vague or overbroad.

Court Rejects Free Exercise Claim of Judge Who Was Not Reappointed Because of Vaccination Status

In Donlon v. City of Hornell, (WD NY, Feb. 27, 2023), a New York federal district court refused to issue a preliminary injunction requiring the city to appoint plaintiff to another term as an assistant city court judge. Plaintiff was denied a religious exemption from the New York court system's COVID vaccination mandate.  This meant that she was unable to conduct in-person hearings and could not maintain a criminal calendar while working virtually. The court said in part:

Plaintiff has not demonstrated that the City’s alleged reasons for denying her reappointment were either “non-neutral or not generally applicable.”... 

In her papers, Plaintiff has a tendency to conflate her vaccination status with her religious beliefs, but the two are distinct....

Plaintiff acknowledges that the City’s concern was not her religious beliefs about vaccination, but the fact that her vaccination status interfered with her “ability to do [her] job while barred from the courtroom.”...

The City’s preference for a candidate who could hold proceedings in person and maintain the criminal caseload required of the position is “religion[] neutral.”... The City is free to prefer such a candidate, and Plaintiff is not, “under the auspices of her religion, constitutionally entitled to an exemption,”... or to “preferential . . . treatment.”... Furthermore, Plaintiff presents no evidence that the City’s preference was not generally applicable—i.e., that the City relied on this preference in a selective manner, imposing “burdens only on conduct motivated by religious belief.”... There were only two candidates for the position, and, in accordance with its “religion-neutral” preference, the City selected an attorney who was vaccinated and could therefore conduct proceedings in person.

11th Circuit: Plaintiff Can Move Ahead with Claims Stemming from Denial of Kosher Meals in Jail

In Ravan v. Talton, (11th Cir., Feb. 27, 2023), the U.S. 11th Circuit Court of Appeals held that plaintiff who is Jewish should have been able to move ahead with RLUIPA claims against a food service and 1st Amendment free exercise claims against two food service workers for denial of kosher meals on seven different occasions while he was in a county detention center. The court said in part:

[I]ndividual defendants argue that depriving Ravan of a handful of meals over a period of months doesn’t constitute an impermissible burden on his religion. But the number of missed meals is not necessarily determinative because being denied three Kosher meals in a row might be more substantial of a burden on religion being denied three meals in three months, and for a diabetic, the denial of one meal may be a substantial burden. And the record is (at best) muddled about the number and timing of Kosher meals that Ravan was denied....

But we reach a different conclusion as to Summit Food Service. To state a claim against Summit Food Service, Ravan had to plead that the company had a custom or policy of not providing Kosher meals, or acquiesced in or ratified its employees’ doing so..... Ravan has not done so...

[I]nstitutions that receive federal funding are liable for monetary damages for violating RLUIPA.... But individual defendants aren’t.... We therefore reverse the dismissal of Ravan’s claim against Summit Food Service and affirm the dismissal of Ravan’s claims against the individual defendants.

Nuns' Hostile Work Environment and Retaliation Claims Can Move Forward

In Brandenburg v. Greek Orthodox Archdiocese of North America, (SD NY, Feb. 23, 2023), a New York federal district court held that it can proceed to adjudicate hostile work environment and some of the retaliation claims brought by two nuns against the Greek Orthodox Archdiocese and several of its clergy members. The nuns claimed that Father Makris, the school's director of student life and their "spiritual father" subjected them to unwanted sexual attention for 13 to 14 years. According to the court:

[T]he ministerial exception flows from the plaintiff’s status as a “minister.” In this case, however, Defendants’ argument has nothing to do with the fact that Plaintiffs were sanctified nuns; instead, it flows from Father Makris’s status as minister and the alleged rationale for his conduct.... 

These and other cases make plain that the First Amendment does not shield all decisions by religious institutions, whether or employment-related or otherwise, from review. Instead, a court is barred from adjudicating a dispute involving a religious institution “only where resolution of the dispute will require the Court or a jury to choose between competing religious views or interpretations of church doctrine or dogma in order to resolve the dispute.”... 

Defendants do ... assert a religious rationale for ... one relatively minor aspect of Father Makris’s conduct: his kissing of Plaintiffs..... [T]he fact that Defendants proffer a religious rationale does not mean that Defendants should be granted immunity from Plaintiffs’ claims. It merely means that Plaintiffs “may not offer a conflicting interpretation of the teachings of the [Greek Orthodox] Church or canon law to rebut [Defendants’] proffered religious reason.”... [H]owever, Plaintiffs are entitled to offer evidence and argument that Defendants’ proffered religious rationale was not the true rationale for Father Makris’s behavior.

Oklahoma AG Withdraws Opinion Permitting Sectarian Charter Schools

As previously reported, last December Oklahoma Attorney General John M. O'Connor issued Attorney General Opinion 2022-7 concluding that the ban in Oklahoma law on publicly funded charter schools being sectarian or religiously affiliated is unconstitutional. On Feb. 23, current state Attorney General Gentner Drummond withdrew that Opinion issued by his predecessor.  In a letter to the Executive Director of the Statewide Virtual Charter School Board (full text) explaining his action, the AG said in part:

Without binding precedent clearly addressing whether charter schools are state actors, this office is not currently comfortable advising your board members to violate the Oklahoma Constitution's clear directive: "Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and free from sectarian control...." Okla. Const. art I, §5 (emphasis added). Likewise, without clear precedent, this office is not comfortable advising you to violate the Legislature's clear directive that "[a] charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations." 70 O.S. §3-136(A)(2) (emphasis added).

Noting that Opinion 2022-7 was issued in anticipation of a Charter School application by St. Isidore of Seville Catholic Virtual School, Drummond's letter pointed out:

[A]pproval of the SISCVS application will create a slippery slope. While many Oklahomans undoubtedly support charter schools sponsored by various Christian faiths, I doubt most Oklahomans would want their tax dollars to fund a religious school whose tenets are diametrically opposed to their own faith. Unfortunately, the approval of a charter school by one faith will compel the approval of charter schools by all faiths, even those most Oklahomans would consider reprehensible and unworthy of public funding. Consequently, I urge your board members to use caution in reviewing the SISCVS application.

Christian Teacher Did Not Show That Her Removal Was Retaliation for Protected Speech or Beliefs

In Barr v. Tucker (SD GA, Feb. 21, 2023), a Georgia federal district court denied a preliminary injunction to plaintiff whose position as a substitute elementary school teacher was terminated after she complained to her own children's teachers and to the principal about the school librarian's reading aloud to classes a book that contains illustrations of same-sex couples with school-age children. The court explained:

Plaintiff told Defendant Tucker [the school principal] that she believed the book was '"inappropriate for young children, conflicted with her Christian faith, and appeared to bean effort to indoctrinate young children into a progressive ideological agenda[]" and asked that her children be excused from the read-aloud program.

Plaintiff contended that the school had retaliated against her for her exercising her free speech and free exercise rights. The court disagreed, saying in part:

... Plaintiff's inquiries principally addressed her personal concerns about exempting her children from the read-aloud program, and the context of her speech suggests she spoke on a matter of private or personal interest.

Accordingly ... Plaintiff has failed to establish a substantial likelihood of success in showing she spoke on a matter of public concern .... As a result. Plaintiff has also failed to establish a substantial likelihood of success on the merits of her First Amendment [free speech] retaliation claim....

The Court accepts, as Plaintiff alleges, that her sincerely held religious beliefs include ''that God created marriage to be between one man and one woman, and that family formation should occur within the confines of heterosexual marriage."... However, at this stage. Plaintiff has not established that she is substantially likely to succeed on showing that Defendants substantially burdened her religious beliefs by terminating her.

It is not clear that Defendants called for Plaintiff's removal due to her religious beliefs....

Defendants maintain they removed Plaintiff due to her inappropriately timed interactions with her children's teachers and concern about how she would support students or parents that identify as gay, not because of her beliefs about marriage and family formation.

DOE Proposes to Rescind Trump Administration Rules Shielding Student Religious Groups at Public Colleges

The Department of Education yesterday released a Notice of Proposed Rulemaking (full text) proposing to rescind two related rules adopted by the Trump Administration in September 2020. Those rules require that public colleges and universities which receive DOE grants (either direct grants or grants under state-administered formula grant programs) must not deny to religious student groups any of the rights, benefits, or privileges that other student groups enjoy because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely-held religious beliefs.

According to yesterday's Notice of Proposed Rulemaking:

Some faith-based and civil rights organizations ... worried that [these rules] could be interpreted to require IHEs [institutions of higher education] to go beyond what the First Amendment mandates and allow religious student groups to discriminate against vulnerable and marginalized students....

There is nothing in the regulatory text that clarifies or guarantees that an institution may insist that such religious organizations comply with the same neutral and generally-applicable practices, policies, and membership and leadership standards that apply equally to nonreligious student organizations, including but not limited to nondiscrimination requirements.

The disparity between the language of the regulatory text and the Department’s stated intent has engendered confusion and uncertainty about what institutions must do to avoid risking ineligibility for covered Department grants....

If IHEs do discriminate against religious student organizations on the basis of the organizations’ beliefs or character, such organizations can and do seek relief in Federal and State courts, which have longstanding expertise in and responsibility for protecting rights under the Free Speech and Free Exercise Clauses, including in cases where there are complex, fact-dependent disputes about whether a policy is neutral and generally-applicable.

Daily Citizen critiques the proposal.

The Department of Education yesterday also published a Request for Information on the effect of current free speech protections required of DOE grantees.

Catholic Bookstore Sues Challenging Florida City's Public Accommodation Law

Suit was filed yesterday in a Florida federal district court challenging the constitutionality of applying Jacksonville's public accommodation law to Queen of Angels, a Catholic bookstore. The complaint (full text) in The Catholic Store, Inc. v. City of Jacksonville, (MD FL, filed 2/22/2023) alleges Free Speech, Free Exercise and vagueness claims, saying in part:

Following a disturbing nationwide trend, the City has expanded its public-accommodation law to cover gender-identity discrimination and thereby require businesses to address customers using their preferred pronouns and titles regardless of a customer's biological sex. The law even prevents businesses from publishing "any communication" a customer or government official might subjectively interpret as making someone feel "unwelcome, objectionable, or unacceptable," such as statements opposing gender-identity ideology.

All this in turn puts Jacksonville's law on a collision course with the First Amendment and ... "Queen of Angels"...,.The bookstore also publishes a website (with blog) any YouTube channel to promote its Catholic faith and products.

As a Catholic bookstore, Queen of Angels follows Catholic teachings-- including the belief that God created everyone in His image, male or female, worthy of dignity and respect. The store serves and sells everything to everyone regardless of gender identity. The bookstore just cannot speak contrary to its beliefs-- to affirm, for example, the view that sex can be changed. So the store cannot use customers' pronouns or titles contrary to their biological sex. Queen of Angels must instead profess an ideological view it opposes....  In effect, the law requires this Catholic bookstore to stop being fully Catholic....

ADF issued a press release announcing the filing of the lawsuit.

5th Circuit Rejects Pastor's Jurisdictional Theory of Religion Clauses

 In Spell v. Edwards, (5th Cir., Feb. 17, 2023), the U.S. Court of Appeals for the 5th Circuit affirmed the dismissal of a suit brought by a pastor and his church claiming that their First Amendment rights were violated by enforcement against them of COVID orders in the early months of the pandemic that barred their holding church services. The court said in part:

Pastor Spell explicitly waived the argument that defendants’ actions violated his constitutional rights under current free exercise jurisprudence....  Pastor Spell instead advanced an absolute, categorical theory of the Religion Clauses, arguing that church assembly is “beyond the jurisdiction of the government.”... He maintained that, under Everson v. Board of Education of Ewing Township, there is a “jurisdictional limit on intrusion by the state into the church.”  In so doing, he expressly waived other arguments.

Pastor Spell is the master of his case, and he cannot prevail on the theory he advances. Controlling precedent directly contradicts Pastor Spell’s jurisdictional theory of the Religion Clauses.

Unfiltered With Kiran reports on the decision.