Cert. Denied in Mootness Dismissal of Free Exercise Challenge to Mask Mandate

The U.S. Supreme Court this morning denied review in Resurrection School v. Hertel, (Docket No. 22-181, certiorari denied 10/31/2022). (Order List.) In the case, an en banc panel of the U.S. 6th Circuit Court of Appeals held by a vote of 13-1-3 that a free exercise challenge to Michigan's COVID mask mandate for school children is moot. (See prior posting.)

Denial of Jury Instruction on Defendant's Religious Exercise Is Upheld

In United States v. Dickey, (7th Cir., Oct. 28, 2022), the U.S. 7th Circuit Court of Appeals upheld a trial court's refusal to give a jury instruction sought by a criminal defendant who was the leader of her own church, Deliverance Tabernacle Ministry, who was convicted of wire fraud and forced labor.  According to the court:

[T]hrough her proselytizing, Dickey groomed vulnerable victims and forced them to disavow their families, live in the church, and work multiple full‐time jobs. The victims would then give Dickey all their wages, which she would keep for herself.... If someone disobeyed, Dickey threatened them with violence and required them to be homeless until she considered them redeemed. All told, her scheme netted $1.5 million, most of which came from DTM members. She spent over $1 million on personal expenses, such as travel, rental and vacation properties, and luxury hotels....

Dickey wanted the jury instructed as follows:  

You should not consider the ways in which the Defendant exercised or practiced her religion in determining whether she is guilty of these charges. All individuals have a right to the free exercise of religion.  

Her proposed jury instruction failed at the outset because it is not an accurate statement of the law. Dickey’s proposed instruction would have excused her criminal conduct based on her religious assertions. That broad interpretation finds no support in the caselaw. To the contrary, neutral laws of general applicability are consistent with the First Amendment.

Suit Over Teaching 1st Graders About Transgender Topics Moves Forward

In Tatel v. Mt. Lebanon School District, (WD PA, Oct. 27, 2022), a Pennsylvania federal district court allowed parents of first graders to move ahead with their due process, equal protection and free exercise claims against a teacher who has a transgender child for teaching their students about transgender topics over parental objections. It also permitted plaintiffs to move ahead against school administrators, the school board and the school district   The court summarized its decision, saying in part:

[T]he factual allegations in the complaint present plausible claims that Parents have fundamental constitutional rights (pursuant to Substantive and Procedural Due Process under the Fourteenth Amendment and the First Amendment Free Exercise clause) that were violated by a public school teacher, over the Parents’ objections and without notice and opt out rights, when the teacher promoted her own agenda to their first grade children about gender dysphoria and transgender transitioning, including showing videos or reading books about those topics, telling the children that the Parents may be wrong about the child’s gender, telling a child she would never lie (implying the parents may be lying about the child’s identity), telling the children to keep the discussions about transgender topics secret, and grooming a student to become a transgender child. The Equal Protection and familial privacy claims asserted by the Plaintiffs are plausible, but will benefit from further factual development. 

A claim based on the children's privacy rights was dismissed without prejudice.

State's Removal of 16-Year-Old Transgender Child from Parents' Home Did Not Violate Their Free Exercise Rights

In In re A.C. (Minor Child), (IN App., Oct. 21, 2022), an Indiana state appeals court upheld a trial court's order removing from the home a 16-year old transgender child who suffered from an untreated eating disorder and who was emotionally abused because of their parent's unwillingness to accept their transgender identity. The parents testified that they could not affirm their child's transgender identity or use the child's preferred pronouns because of their religious beliefs.  In rejecting the parents' Free Exercise claims, the court said in part:

[T]he Dispositional Order was based on Child’s medical and psychological needs and not on the Parents’ disagreement with Child’s transgender identity....

Even if the Parents were able to demonstrate that the Dispositional Order imposes a substantial burden on their religious freedom, their claim that Child’s continued removal from the home violates the Free Exercise Clause would fail....  [P]rotecting a child’s health and welfare is well recognized as a compelling interest justifying state action that is contrary to a parent’s religious beliefs.

The court also held that the trial court's order requiring the parents to refrain from discussing Child’s transgender identity during visitation does not violate the parents' free speech rights.

Baker With Religious Objections to Same-Sex Marriage Did Not Violate California's Civil Rights Law

In a tentative decision which becomes final in ten days unless objections are filed, a California state trial court has concluded that a bakery which refuses on religious grounds to furnish custom designed cakes for same-sex weddings and instead refers customers to another bakery for such items did not violate the Unruh Civil Rights Act. In Department of Fair Employment and Housing v. Cathy's Creations, Inc., (CA Super. Ct., Oct. 21, 2022), the court concluded that the state failed to prove intentional sexual orientation discrimination, saying in part:

Miller and Tastries do not design and do not offer to any person-- regardless of sexual orientation-- custom wedding cakes that "contradict God's sacrament of marriage between a man and a woman.

The court went on to hold that because California's Unruh Civil Rights Act is a neutral law of general applicability, the state did not violate defendant's free exercise rights. However, application of the Unruh Civil Rights Act here would violate defendants' free speech rights because it would compel expressive conduct based on content or viewpoint. Thomas More Society issued a press release announcing the decision.

Profs Sue University for Including Caste in Antidiscrimination Policy

Suit was filed on Monday in a California federal district court by two California State University professors challenging the University's inclusion of discrimination on the basis of caste in its Interim Antidiscrimination Policy adopted in January. The complaint (full text) in Kumar v. Koester, (CD CA, filed 10/17/2022) alleges in part:

[T]he Interim Policy seeks to define the Hindu religion as including “caste” and an alleged oppressive and discriminatory caste system as foundational religious tenets. That not only is an inaccurate depiction of the Hindu religion, but the First Amendment to the United States Constitution prohibits California and CSU from defining the contours of Hinduism (or any religion)....

The Interim Policy also singles out only CSU’s Hindu employees, professors and students, as well as those of Indian/South Asian origin. No other Protected Status in the Interim Policy addresses any specific ethnicity, ancestry, religion or alleged religious practice,,,

Plaintiffs seek a determination that the term “caste” as used in the Interim Policy is unconstitutionally vague, and the Interim Policy as drafted violates the rights of Plaintiffs (and similarly situated individuals) under the First and Fourteenth Amendments to the United States Constitution, as well as their rights under the California Constitution.

The Hindu American Foundation issued a press release announcing the filing of the lawsuit.

Christian Counselor Challenges City's Conversion Therapy Ban

Suit was filed yesterday in a Wisconsin federal district court challenging the city of La Crosse's ordinance that prohibits medical and mental health professionals from engaging in conversion therapy with anyone under 18 years of age. The complaint (full text) in Buchman v. City of La Crosse, (WD WI, filed 10/13/2022), alleges that the ban on counseling minors to change their sexual orientation, gender identity, gender expression or behaviors violates free speech and free exercise rights of plaintiff, a licensed counselor who approaches counseling through "a Christ-centered lens". It also alleges that the ban is unconstitutionally vague and violates the Wisconsin Constitution's protection of the right of conscience. The complaint says in part:

The Ordinance thus interferes with Ms. Buchman’s ability to decide matters of faith and doctrine for herself and to then infuse her work with these religious beliefs. It attempts to dictate and influence Ms. Buchman’s resolution of those matters. It forces her to choose between her faith and government penalty.

Wisconsin Spotlight reports on the lawsuit.

Anti-Abortion Sidewalk Counselor Challenges Sign Permit Requirement

Suit was filed this week in a Maryland federal district court alleging that Baltimore's sign permit ordinance violates plaintiff's free speech and free exercise rights. The complaint (full text) in Roswell v. City of Baltimore, (D MD, filed 10/10/2022), seeks a preliminary injunction to prevent the city from requiring plaintiff to obtain permits in order to use A-frame signs when engaging in religiously-motivated sidewalk anti-abortion counseling at a Planned Parenthood facility. Thomas More Society issued a press release announcing the filing of the lawsuit.

Religious Questioning Of Muslim Travelers By Border Officers Upheld

In Kariye v. Mayorkas, (CD CA, Oct. 12, 2022), three Muslim plaintiffs sued the Department of Homeland Security alleging that border officers routinely and intentionally single out Muslim-American travelers to demand they answer religious questions. The court, in a 71-page opinion in its official format, first dismissed plaintiffs' Establishment Clause challenge. Applying the Supreme Court's test articulated in Kennedy v. Bremerton School District, the court said in part:

The court finds substantial legal authority supporting the government's historically broad authority to implement security measures at the border.... Additionally, the court finds substantial authority holding that maintaining border security is a compelling government interest.

The court rejected plaintiffs' free exercise claim, finding that plaintiffs had not sufficiently alleged a substantial burden on their religious exercise. It additionally concluded that even if there was a substantial burden, officers' questioning was narrowly tailored to advance a compelling governmental interest in protecting borders and preventing potential terrorism.

The court also rejected freedom of association, retaliation, equal protection and RFRA challenges to practices of border officers.

New York Yeshivas Sue Over Substantial Equivalency Guidelines

In New York, a group of yeshivas and two organizations have sued challenging the state Board of Regents recently adopted guidelines implementing NY Education Law §3204(2) which requires instruction in nonpublic schools to be at least "substantially equivalent" to that in public schools in the same city or district. The complaint (full text) in In re Parents for Educational and Religious Liberty in Schools, (Albany County Sup. Ct., filed 10/9/2022), alleges in part:

... [T]he New York State Education  Department... has spent the last half decade seeking to impose greater requirements and heightened oversight on these schools than are imposed on other schools in New York, whether public or private....

First, the New Regulations violate the New York State Administrative Procedures Act ... because the public comment process was a sham.... Here, NYSED received more than 300,000 comments in opposition to the proposed regulations but did not truly consider them and did not make any substantive revisions....

Second, the New Regulations violate SAPA by imposing on yeshivas obligations and restrictions not found in other schools. Only yeshivas ... will be prohibited from offering instruction ... in a student’s home language....

Third, the New Regulations create an impermissible de facto licensing requirement through the review and determination process....

The New Regulations frustrate the Petitioners’ constitutionally protected rights to the free exercise of religion and free speech, and violate their due process rights and right to equal protection. 

Hamodia reports on the lawsuit.

Physician Assistant Sues Hospital That Fired Her Over Treatment Of Transgender Patients

 A suit was filed on Tuesday in a Michigan federal district court by a woman who had worked as a physician assistant for 17 years, but was then fired for refusing, on religious grounds, to refer patients for gender transitioning drugs and procedures and to use pronouns that correspond to a patient's gender identity rather than their biological sex. In a claim denied by the fired employee, it was also claimed she altered template pronouns on medical records.  The complaint (full text) in Kloosterman v. Metropolitan Hospital, (WD MI, filed 10/11/2022), alleges in part:

9. By exhibiting open hostility toward Ms. Kloosterman’s religious beliefs, University of Michigan Health-West officials violated the Free Exercise Clause.... 

10. By accommodating secular preferences while refusing to grant a religious accommodation to Ms. Kloosterman, University of Michigan Health-West’s actions trigger and fail strict scrutiny under the Free Exercise Clause.... 

11. By seeking to compel Ms. Kloosterman to speak biology-obscuring pronouns that would violate her conscience and her medical judgment, as doing so could cause patients to miss potentially life-saving screenings, University of Michigan Health-West also violated the Free Speech Clause.... 

12. When it engaged in the aforementioned actions and fired Ms. Kloosterman, University of Michigan Health-West also violated the Fourteenth Amendment’s Equal Protection Clause, as well as Article I, §§ 2, 4, and 5 of the Michigan Constitution and the Elliott-Larsen Civil Rights Act of 1976....

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

City's Harassment Of Private Prayer Services In Rabbi's Home Violated 1st Amendment

In Congregation 3401 Prairie Bais Yeshaya D'Kerestir, Inc. v. City of Miami, (SD FL, Oct. 6, 2022), a Florida federal district court refused to dismiss claims that city officials' harassment of a rabbi's home that hosted daily minyans (prayer services) for invited guests violated the 1st Amendment.  Private groups worshiping in a person's home are permitted in residential areas under the city's zoning code. The court said in part:

Defendant, wielding the City Code "like a club" ... issued multiple erroneous citations against Plaintiff for zoning code violations...; sent City personnel to the Property a staggering 126 times...; installed a surveillance camera that monitors only the Property ...; conducted at least one warrantless search...; and otherwise singled Plaintiffs out for harassment.... These events have had "a chilling effect on Plaintiff[s'] First Amendment Rights."... . Defendant's conduct, at least as alleged, could certainly "chill a person of ordinary firmness from exercising his or her First Amendment rights."  [Quote updated.]

5th Circuit Hears Oral Arguments On Alabama COVID Limits On Religious Gatherings

 On Oct. 3, the 5th Circuit U.S. Court of Appeals heard oral arguments (audio of full arguments) in Spell v. Edwards. Former Alabama Supreme Court Chief Justice and U.S. Senate candidate Roy Moore argued for appellant. In the case, a Louisiana federal district court dismissed a challenge to a now expired COVID Order limiting the size of religious gatherings. The district court dismissed because the challenged restrictions had already expired, and defendants had qualified immunity in the claim for damages. (See prior posting.) AP reports on the oral arguments.

5th Circuit: Confiscation Of Prisoner's Religious Material Upheld

 In DeMarco v. Bynum, (5th Cir., Oct. 4, 2022), the U.S. 5th Circuit Court of Appeals upheld the dismissal of a suit brought by an inmate who contended that confiscation of his religious material violated his First Amendment rights. The court said in part:

DeMarco concedes that he did not store his religious materials as required by AD-03.72. And this court has previously indicated that TDCJ policies regarding storage of personal property do not infringe on a prisoner’s right to free exercise of religion....

Bynum’s confiscation of DeMarco’s religious materials was reasonably related to a legitimate penological objective.... There is also an alternative way for DeMarco to exercise his First Amendment rights, by accessing religious reading materials through the prison chaplain. The impact of accommodating DeMarco’s constitutional rights on other prisoners, guards, and prison resources could be great, given the management and safety concerns underlying the policy....

Moreover, even if Bynum had violated DeMarco’s constitutional rights, the district court correctly found that Bynum was entitled to qualified immunity because his actions were objectively reasonable.

Michigan Ban On Use Of State Funds For Private And Religious Schools Upheld

In Hile v. State of Michigan, (WD MI, Sept. 30, 2022), a Michigan federal district court dismissed free exercise and equal protection challenges to a provision in the Michigan Constitution that prohibits the use of state funds, tax benefits or vouchers to aid "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school" or student attendance at such schools. Plaintiffs contend that the provision reflects an anti-religious and anti-Catholic sentiment. Plaintiffs base their challenge on the unavailability of Michigan's Section 529 savings plan for them to use to send their children to private religious schools. The state, however, argues that its Plan is not available for any private high school tuition. Plaintiffs argue that the state is misinterpreting its own legislation.  The court said in part:

The court is satisfied that principles of comity preclude merits consideration of plaintiffs’ First Amendment Challenges because they would require this court to disregard the State’s own interpretation and consistent application of its own tax law, neither of which raises First Amendment concerns. Plaintiffs can take the issue up with Michigan tax authorities in the ordinary administration of the Michigan income tax collection process. But unless and until Michigan changes the interpretation and application of its own tax law, and replaces it with the version Plaintiffs say it should have, there is no First Amendment issue.

The court also rejected plaintiffs' equal protection challenge, saying that it is unwilling to expand the "political process" doctrine. Plaintiffs had argued that by placing the limits on use of state funds in the state Constitution, the state had burdened their ability to seek changes in the law. Bridge Michigan reports on the decision.

COVID Vaccine Mandate Without Religious Exemption Is Upheld

In Does v. Hochul, (ED NY, Sept. 30, 2022), a New York federal district court dismissed challenges to New York's COVID vaccine mandate for healthcare workers brought by five employees with religious objections to the vaccine. In evaluating plaintiffs' free exercise claims, the court concluded that the regulation, which contains no religious exemption, is subject only to rational basis review, saying in part:

The plaintiffs argue that the mandate is not neutral because it includes a medical exemption, and thus “treats religious exemptions less favorably than some nonreligious exemptions;” in the plaintiffs’ words, this “double standard is not a neutral standard.”... 

Section 2.61 is neutral on its face. It does not refer to religion at all, and applies to “all persons employed or affiliated with a covered entity” who could “potentially expose other covered personnel, patients or residents to” COVID-19; the only exception is for employees with medical conditions that qualify for a medical exemption...

The rule at issue in this case involves no “singling out” of religious employees. Indeed, Section 2.61 applies equally to all employees who can be vaccinated safely, regardless of their religious beliefs or practices, whether they have political objections to the vaccine, or question their efficacy or safety, or any of the many other reasons that people choose not to get vaccinated....

The court also rejected plaintiffs' Title VII challenge, saying in part:

The sole “accommodation” the plaintiffs seek—a religious exemption from the vaccine requirement— would impose an undue hardship on the Private Defendants because it would require them to violate state law.

11th Circuit: City Council Invocation Is Government Speech

In Gundy v. City of Jacksonville Florida, (11th Cir., Sept. 30, 2022), the U.S. 11th Circuit Court of appeals held that an invocation opening a city council meeting delivered by Reginald Gundy, a pastor invited by a member of Council, is government speech.  At issue is a suit by the pastor whose microphone was cut off in the middle of his invocation by the city council president who concluded that the invocation had crossed over into a political attack. The court concluded that the pastor's suit should be dismissed, saying in part:

Mr. Gundy's appeal centers on the fact that he brought counts against Mr. Bowman and the City based on alleged violations of his free speech and free exercise rights under the United States Constitution and the Florida Constitution.

As a threshold and dispositive matter, ... we hold that the district court erred in deeming the invocation private speech in a nonpublic forum instead of government speech. And since Mr. Gundy did not allege a violation of his rights under the Establishment Clause, which is the proper constitutional vehicle to attack the government speech at issue here, his appeal must fail.

Special Permit Requirement Only For Houses Of Worship Violates 1st Amendment

In Omar Islamic Center Inc. v. City of Meriden, (D CT, Sept. 30, 2022), a Connecticut federal district court held that a zoning regulation that required places of worship to obtain a special permit to operate in areas zoned M-4 (Planned Industrial District) violates plaintiffs' 1st Amendment free exercise rights. Plaintiff sought to use a vacant commercial building as a mosque. The court said in part:

Regulations allowed hotels, motels, and convention centers, as well as numerous shops and stores including bakeries, restaurants, and theaters, to operate as of right in the M-4 district, without needing to apply for a special permit.... Places of worship, however, were required to obtain a special permit before opening their doors. It is clear to the Court that, under the test set forth by the Supreme Court in Tandon, at least some comparable secular activities were therefore treated more favorably than religious activities under the Regulations. Thus, the law is not neutral and generally applicable under free exercise principles, and it must be examined with strict scrutiny.

Defendants have not defended the law under either a rational basis or strict scrutiny standard. In fact, they have proffered no rationale underlying the law whatsoever.

The court also found that the regulation violated plaintiff's equal protection rights. The court refused to pass on plaintiff's RLUIPA claims because it was unclear whether or not plaintiff had an actual property interest in the building.

DC Circuit Hears Oral Arguments From Abortion Protesters

On Wednesday, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments (audio of full oral arguments) in Frederick Douglass Foundation, Inc. v. DC.  In the case, a D.C. federal district court dismissed claims that enforcing ordinances prohibiting the defacing property against anti-abortion protesters but not against racial-justice protesters violated free exercise and free speech protections.  The abortion protesters sought to paint or chalk D.C. streets with the slogan "Black Pre-Born Lives Matter." (See prior posting.) An ADF press release has more on the case.

Jewish Plaintiffs Challenge New York's Ban On Firearms In Places of Worship Or Religious Observation

Suit was filed yesterday in a New York federal district court challenging the constitutionality of recently enacted New York Penal Law §265.01-e which bans possession of a firearm, rifle or shotgun in "any place of worship or religious observation." The suit was brought by a modern Orthodox Jewish synagogue, its president and another Jewish individual. The complaint (full text) in Goldstein v. Hochul, (SD NY, filed 9/29/2022) details a number of recent incidents of violence against Jews and alleges in part:

91. Penal Law § 265.01-2(2)(c) discriminates against religious beliefs and regulates and prohibits conduct because it is undertaken for religious reasons.

92. The Statute makes it more dangerous to attend a “sensitive location” than it would be had that law not been enacted, because it strips away the ability for people in that sensitive location to defend themselves. The Statute singles out religious locations for this elevated, state-sanctioned, danger. This acts as a deterrent for law-abiding people to enter such “sensitive locations,” including places of worship....

94. By singling out places of worship and religious observation for reduced Second Amendment rights, the Statute constitutes a religious gerrymander....

The suit also alleges that the statute is unconstitutionally vague, saying in part:

111. As observant Jews, nearly every location is a place of religious observation for plaintiffs Goldstein and Ornstein....

It also contends that the law violates the Second Amendment, the Equal Protection Clause and various provisions of the New York State Constitution. Hamodia reports on the lawsuit.