Review Denied In Challenge To Nevada's Limit on Worship Services

The U.S. Supreme Court today denied a petition for certiorari before judgment in Calvary Chapel Dayton Valley v. Sisolak, (Docket No. 20-639, cert. denied 1/25/2021). (Order List.) At issue is the constitutionality of Nevada Governor Steve Sisolak's COVID-19 Order limiting indoor worship services to no more than 50 people with social distancing. The SCOTUSblog case page has links to all the pleadings in the case. The Supreme Court previously refused to enjoin enforcement of the Order pending appeal. (See prior posting.)

Jewish Organization Fails To Prove Violations In Denial of Its Use of Free After-School Space

In Chabad Chayil, Inc. v. School Board of Miami-Dade County Florida, (SD FL, Jan. 22, 2021), a Florida federal district court dismissed claims by a Jewish non-profit organization that the Miami-Dade County School Board and the County's Office of Inspector General (OIG) violated its 1st and 14th Amendment rights when it took away its rent free use of school facilities for after-school programs. The OIG, after investigating an anonymous complaint, claimed that Chabad Chayil violated various regulations in applying for rent-free use and in operating its program. The court concluded that Chabad Chayil had failed to show that its claims met the requirements for liability under 42 USC §1983. It "failed to allege facts showing that any School Board official or staff member was a final policymaker with respect to the decisions or actions that Chabad Chayil maintains were unconstitutional...." It failed to show a OIG custom or policy that would make it liable for free exercise violations. Chabad Chayil also failed to prove equal protection or due process violations.

9th Circuit Upholds California's Temporary Ban On Indoor Worship Services

 In South Bay United Pentecostal Church v. Newsom, (9th Cir., Jan. 22, 2021), the U.S. 9th Circuit court of Appeals affirmed a California federal district court's denial of a preliminary injunction to a church that objects to the state's COVID-19 ban on indoor religious services. The court describes the current restrictions:

California permits unlimited attendance at outdoor worship services and deems clergy and faith-based streaming services “essential,” but has temporarily halted all congregate indoor activities, including indoor religious services, within portions of the state currently identified by objective measures as being at high risk....

South Bay argues that the current restrictions on indoor services prohibit congregants’ Free Exercise of their theology, which requires gathering indoors.

In upholding the state's requirement, the court said in part:

Notably, in response to the State’s mountain of scientific evidence, South Bay has not pointed to anything in the record to support the notion that the lesser restriction that it seeks—100% occupancy with a reliance solely on mask-wearing, social distancing, and sanitation measures—would be effective to meet California’s compelling interest in controlling community spread. South Bay’s self-serving assertion that it has experienced no incidence of the virus among its worshipers is entirely anecdotal and undermined by evidence of outbreaks in similarly situated places of worship.

The court concluded, however, that 100- and 200-person caps for later stages of recovery are unconstitutional "because California has imposed different capacity restrictions on religious services relative to non-religious activities and sectors."

Suit Challenges Trump Administration's Loosening of Limits On Faith-Based Federally Funded Programs

Suit was filed this week in a New York federal district court by seven advocacy groups challenging the Trump Administration's loosening of restrictions on faith-based organizations' operation of programs and activities funded by federal grants. The complaint (full text) in MAZON: A Jewish Response to Hunger v. Azar, (SD NY, filed 1/19/2021) alleges in part:

Because the Agencies provide no reasonable justification for the rule change, because they fail to account for the harms caused by the 2020 Rule, because their reasoning is inconsistent and contrary to the record, and because they fail to consider obvious alternatives, the 2020 Rule is arbitrary and capricious in violation of the APA.

The complaint explains the challenged rule as follows:

The 2020 Rule eliminates the common-sense and agreed-upon requirements from the 2016 Rule, such as that beneficiaries receiving services from a faith-based provider receive a notice of their rights not to be discriminated against based on religion and the option to request a referral to an alternate provider. These requirements imposed virtually no burden, but provided beneficiaries with much-needed information empowering them to protect their own religious liberty.

The 2016 rule reflected a consensus proposal of a number of different interest groups. American Atheists issued a press release announcing the filing of the lawsuit.

No Free Exercise Infringement When Court Allocates Vaccination Decision-Making Between Parents

 In In re Marriage of Crouch, (CO App., Jan. 14, 2021), a Colorado state appellate court remanded a trial court's refusal to modify the allocation of medical decision-making by divorced parents for their children. Originally both parents had agreed, largely for religious reasons, that their children should not be vaccinated. Subsequently the father changed his mind and sought to have them vaccinated.  The appeals court held that the trial court improperly imposed on the father an added burden in order to overcome the mother's right to free exercise of religion.  The court said in part:

A parent’s free exercise rights are not implicated by a court’s allocation of decision-making responsibility between parents.

Grand Junction Daily Sentinel reports on the decision.

Restrictions On Sex Offenders Survives Free Exercise Challenge

Tennessee Code §40-39-211(d)(1)(B) prohibits violent sexual offenders from remaining within 1000 feet of any playground. In State of Tennessee v. Colllier, (TN Ct. Crim. App., Jan. 14, 2021), Tennessee state appellate court rejected a free exercise challenge to this provision:

Defendant argues that the statute is overbroad because if “playground” includes both public and private playgrounds, the statute would prevent the Defendant from attending church services, as most churches have a playground.... The Free Exercise Clause does not protect all conduct associated with religious practice.... Conduct remains subject to regulation for the protection of society.”...  The Defendant remains free to hold whatever beliefs he may choose and privately practice religion as he wishes. However,... [t]he State’s “paramount” interest in “protect[ing] the public from [sexual] offenders” allows it to “define” and limit the extent of the Defendant’s “freedom to act.”

2nd Circuit: Vermont May Not Exclude Religious School Students From Dual Enrollment Program

In A.H. v. French, (2d Cir., Jan. 15, 2021), the U.S. 2nd Circuit Court of Appeals held that a preliminary injunction should issue to allow funding of a high school student's college enrollment under Vermont's Dual Enrollment Program. Vermont statutes pay for high schoolers in public schools to take two college courses. Students in private high schools are eligible to take advantage of the Dual Enrollment Program only if their high school tuition is publicly funded. Under a separate program-- the Town Tuition Program-- school districts that do not have high schools are to fund students' tuition in either out-of-district public high schools or secular private high schools. In this case, a student was denied participation in the Dual Enrollment Program because her high school was religious and thus was denied public funding under the Town Tuition Program. the court said in part: 

In these circumstances, the State’s reliance on the “publicly funded” requirement as a condition for DEP eligibility imposes a “penalty on the free exercise of religion.”...

Judge Menashi filed a concurring opinion. ADF issued a press release announcing the decision.

Rules For Possessing Coyotes Survive Free Exercise Challenge

In Tranchita v. Callahan, (ND IL, Jan. 5, 2021), an Illinois federal district court rejected an attempt by a wildlife educator who cares for orphan coyote pups to recover a coyote taken from her by the Illinois Department of Natural Resources. The Department insists that the breeder must hold a hound running area permit in order to legally possess the coyote. Plaintiff claims, among other assertions, that the permit requirement violates her free exercise of religion rights:

Tranchita contends that it is her religious belief that she must “‘do unto others as [she] would have them do unto [her],’” that this belief “extends to animals as well as humans,” and that running hounds after coyotes violates this belief.

All the parties agreed that the permit requirement is neutral and generally applicable. The court then concluded:

Because the Hound Running Permit requirement is neutral and generally applicable, the Court must next ask whether the requirement “is rationally related to a legitimate government interest.”... And it is here that Tranchita fails to show a likelihood of success on the merits. No matter how tame a coyote may seem, it is still a wild animal that could pose danger to other animals (such as pets) and people if it were to escape from its enclosure in a densely populated area. Illinois has a legitimate interest in trying to prevent such situations from occurring, and it may do so through regulating who can possess coyotes and where.

6th Circuit: County COVID Order Closing All High Schools Infringes Parochial Schools' Rights

In Monclova Christian Academy v. Toledo-Lucas County Health Department, (6th Cir., Dec. 31, 2020), the U.S. 6th Circuit Court of Appeals granted an injunction pending appeal against enforcement of a health department order prohibiting in-person attendance for Grades 7-12 at the nine Christian and Catholic schools bringing suit. The health department order imposed the same restrictions on public and secular private schools in the Ohio county. The court held that in deciding whether religious schools are treated less favorably than comparable secular activities, it is not enough that secular schools are treated in the same manner:

In Lucas County, the plaintiffs’ schools are closed, while gyms, tanning salons, office buildings, and the Hollywood Casino remain open. Cuomo makes clear that those secular facilities are “comparable” for purposes of spreading COVID-19. 141 S. Ct. at 66; see also, e.g., Roberts, 958 F.3d at 414. The Resolution’s restrictions therefore impose greater burdens on the plaintiffs’ conduct than on secular conduct.

The court also rejected the state's argument that the schools' exercise of religion was not burdened because the order allowed the schools to open for religious education classes and religious ceremonies. The court said in part:

... [N]o one argues that the Department has targeted the plaintiffs’ schools or acted with animus toward religion here. But the plaintiffs argue that the exercise of their faith is not so neatly compartmentalized. To the contrary, they say, their faith pervades each day of in-person schooling.... We have no basis to second-guess these representations.... The Department’s closure of the plaintiffs’ schools therefore burdens their religious practice.

Josh Blackman at Volokh Conspiracy reports on the decision.

Appellate Court Upholds New York City Measles Vaccination Order

 In C.F. v. New York City Department of Health and Mental Hygiene, (App. Div., Dec. 23, 2020), a New York state appellate court upheld New York City's 2019 Order requiring everyone residing in certain areas of Brooklyn to be vaccinated against measles. An outbreak of the disease had occurred in that area. The court said in part:

The resolution was within the authority of the Board of Health of the Department of Health and Mental Hygiene to make and the resolution itself did not violate any right of the petitioners, including their freedom of religion....

The petitioners profess to hold religious beliefs that hold that a healthy body should not assimilate foreign objects, including vaccine ingredients...

While there are recent decisions of the United States Supreme Court which have reflected a greater solicitude to claims for religious exemptions from neutral, generally applicable laws than had previously been articulated (see e.g. Little Sisters of the Poor Saints Peter & Paul Home v Pennsylvania...; Burwell v Hobby Lobby Stores, Inc....), those cases were not decided under the First Amendment, but under the federal Religious Freedom Restoration Act of 1993....

The petitioners rely on language from Justice Gorsuch's concurrence in Masterpiece Cakeshop, joined by Justice Alito, which characterized the Smith rule as "controversial in many quarters".... While it is certainly conceivable that the United States Supreme Court may, in some future case, reconsider the standard for addressing a religious objector's challenge to neutrally applicable laws, we are bound to apply the constitutional principles as they now exist, rather than engage in a projection as to what principles may evolve in the future....

We believe that the Free Exercise Clause does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability, even if the law has the incidental effect of burdening a particular religious practice.

New Hampshire Supreme Court Says State Constitution Requires Strict Scrutiny of Free Exercise Infringements

In State of New Hampshire v. Mack, (NH Sup. Ct., Dec.  22, 2020), the New Hampshire Supreme Court held that the state Constitution's elaborate guarantee of free exercise of religion so long as one does not "disturb the public peace" should be read to require strict scrutiny.  The court vacated a trial court's refusal to dismiss a drug prosecution brought against defendant who was a member of the Oklevueha Native American Church. Defendant was convicted of possession of psilocyn and psilocybin for use in religious rituals. The court concluded that the state constitution gives greater free exercise protection against burdens from neutral generally applicable laws than does the U.S. Constitution under the Smith case. The court said in part:

We ... conclude that when religious practices violate a generally applicable law, our State Constitution ... demands that “there . . . be a balancing of [the] competing interests.” ...  [W]e choose to adhere to our traditional formulation of strict judicial scrutiny — requiring the State to demonstrate that its action is “necessary to achieve a compelling governmental interest and narrowly tailored to meet that end.” ... Accordingly, under Part I, Article 5, once an individual establishes that the government action substantially burdens his or her sincere religious practice, ... the burden shifts to the State to show both that the government action is necessary to achieve a compelling government interest, and is narrowly tailored to meet that end....

The Union Leader reports on the decision.

Ohio County's School Closure Order Upheld

In Monclova Christian Academy v. Toledo- Lucas County Health Department, (ND OH, Dec. 14, 2020), an Ohio federal district court refused to issue a temporary restraining order against COVID-19 rules which bar in-person instruction at the high school level, and bar use of schools for various activities. The suit was filed by three Christian schools and an organization of Christian and Catholic schools.  The court said in part:

The nature of Plaintiffs’ arguments stems in part from their assertion that the educational courses they offer to their students are inextricably intertwined with their religious beliefs and, therefore, to prohibit Plaintiffs from holding classes in the manner in which they believe is most consistent with the tenets of their faith is to interfere with the free exercise of their faith....

While, as Plaintiffs note, TLCHD has not ordered gyms, tanning salons, or casinos to close, ... these are not the relevant “comparable secular activities.” Instead, the comparable secular activities are educational classes offered by all other schools in Lucas County. These specific environments have substantially similar groupings and movements of individuals....

Plaintiffs’ arguments ... would extend to prohibit the government from regulating any aspect of a Christian’s public life because, as Plaintiffs’ mission statements make clear, the purpose of providing “a biblical foundation for . . . students” is to prepare students “to exemplify Christ [and] make Biblically-based decisions” throughout an individual’s life, and not only during the schools years.

Court Refuses To Enjoin Kentucky Limits On In-Person Religious School Instruction

 In Pleasant View Baptist Church v. Saddler, (ED KY, Dec. 11, 2020, a Kentucky federal district court refused to issue a preliminary injunction against enforcement of Kentucky's COVID-19 orders that, among other things, ban in-person teaching at religious schools and limit the size of in-home social gatherings. Relying on 6th Circuit precedent, the court rejected free exercise challenges by Christian schools. It added, however:

Ultimately, the Supreme Court will decide this question. Danville Christian Academy, Inc., et al. v. Beshear, 20-6341 (6th Cir. Nov. 29, 2020), appeal docketed, No. 20A96 (Dec. 1, 2020). At this juncture, an injunction is not supported given the teaching of the Sixth Circuit, but that could change. And if it does, this Court will revisit Pleasant View’s request.

Michigan Catholic Schools Sue Over COVID Order

A group of Catholic schools and parents of students in the schools filed suit this week in a Michigan federal district court challenging the state's latest COVID-19 Order which temporarily bars in-person instruction in high schools. The schools claim that the latest order violates their free exercise, freedom of assembly, due process and equal protection rights. The complaint (full text) in Michigan Association of Non-Public Schools v. Gordon, (WD MI, filed 12/7/2020), alleges in part:

Plaintiffs fully understand and appreciate the challenges of limiting COVID’s spread and of contributing to the common good. They are convinced that continuing in-person religious education contributes  to the well-being of Michiganders, rather than harming it. That is why they have gone to such extraordinary lengths to ensure in-person schooling can be done safely for everyone.

Despite all this, Defendant has shuttered Plaintiffs’ schools. At the same time, Defendant allows other activities with demonstrably higher risks to continue. These include professional and collegiate athletics, tattoo parlors and hair salons. Defendant’s prior three-week “pause” order has now been extended and Plaintiffs face the prospect of indefinite future extensions....

MLive reports on the lawsuit.

4th Circuit Remands Muslim Inmate's RLUIPA and Equal Protection Claims

In Gentry v. Robinson, (4th Cir., Dec. 7, 2020), the U.S. 4th Circuit Court of Appeals affirmed in part and vacated in part a Virginia district court's dismissal of a suit by a Muslim inmate who, for religious reasons, seeks to maintain a full beard. The court remanded plaintiff's RLUIPA claim instructing the district court to consider, in light of the prison system's change in policy to now allow beards, whether the claim is moot. The court also remanded for further consideration plaintiff's equal protection claim. The court however agreed that plaintiff's claim for damages for violating his 1st Amendment free exercise rights should be dismissed, saying in part:

Because no law or precedent at the time of the challenged conduct “clearly established” that VDOC’s grooming policy violated the constitutional rights of religious objectors like Gentry, the defendants are entitled to qualified immunity on this claim.

Suit Challenges Ohio County's COVID-19 School Closure Order

Three Toledo, Ohio area Christian schools and a state-wide organization of evangelical and Catholic schools filed suit yesterday in an Ohio federal district court challenging a Health Department's COVID-19 Resolution requiring secondary schools to end in-person teaching.  The complaint (full text) in Monclova Christian Academy v. Toledo-Lucas County Health Department, (ND OH, filed 12/7/2020), alleges in part:

If the Resolution is allowed to take effect, on December 4 at 4:00 p.m. in Lucas County, one will still be free to crowd in retail stores, go bowling with friends, go to the movies, attend concerts, go to a hair salon, get a manicure or massage or tattoo, or even go to the casino. Although there are limits and restrictions that govern how such in-person activities must operate, the Resolution has not prohibited them or altered the way in which those groups of people gather or use facilities. Yet, starting on December 4 at 4:00 p.m., Grades 7-12 (or 9-12 depending on school configuration) are strictly prohibited from attending in-person school, even when religious education is a deep and sincere facet of one’s faith, and even when those operating religious schools are abiding by strict social distancing and hygiene standards.

Citizens for Community Values issued a press release announcing the filing of the lawsuit. 

Anti-Gay Proselytizers Lose Suit Against City

In Waldrop v. City of Johnson City,Tennessee, (ED TN, Nov. 30, 2020), a Tennessee federal district court dismissed a suit by several individuals who were distributing religious literature at a gay pride event. Plaintiffs claimed that their free speech and free exercise rights were infringed when they were required by police to move from the entrance to the park where the event was being held to a nearby sidewalk. The court said in part:

The evidence supports only the conclusion that the officers escorted Plaintiffs from Founders Park, and voiced any attendant warnings to them about their return there, in response to their obstruction of the entrance—a content-neutral reason for their removal. The record is simply without evidence showing that Lieutenant Peters or any other officer moved Plaintiffs away from Founders Park for any other reason, much less for the reason that the content of Plaintiffs’ message was offensive or disagreeable. To the contrary, the evidence establishes— beyond any genuine issue of material fact—that the officers allowed Plaintiffs’ message to endure within the festival’s event area for hours into the day, despite TriPride’s organizers’ clamors for the officers to extinguish it.

Justice Alito Refuses To Enjoin Louisiana's COVID Restrictions On Churches

On Nov. 10, in Spell v. Edwards, a Louisiana federal district court dismissed a suit by megachurch pastor Tony Spell challenging the state's COVID-19 limits on worship services. Plaintiff filed an Emergency Application for an Injunction Pending Appeal with Supreme Court Justice Samuel Alito, contending:

This case presents a threshold question that other applicants did not present to this Court in prior religious liberty challenges: Whether the First Amendment places the decision of whether to assemble solely within the jurisdiction of the Church and not the State.

 On Nov. 27, Justice Alito, without referring the Application to the full court, denied the Application. Law & Crime reports on Justice Alito's action.

Suit Challenges DC's Refusal To Allow "Black Pre-Born Lives Matter" Mural on Street

Suit was filed this week in D.C. federal district court challenging the constitutionality of D.C.'s refusal to allow protesting groups to paint a mural reading "Black Pre-Born Lives Matter" on the street near a Planned Parenthood Clinic. It also barred the chalking of the same message. The complaint (full text) in Frederick Douglass Foundation, Inc. v. District of Columbia, (D DC, filed 11/18/2020) points out that murals reading "Black Lives Matter" and "Defund the Police" were permitted to be painted along other D.C. streets. Plaintiffs contend that this differential treatment violates their free speech, equal protection and free exercise rights.  ADF issued a press release announcing the filing of the lawsuit.

10th Circuit Dismisses Objections To Attempted Search of Church

 In Aguilera v. City of Colorado Springs, (10th Cir., Nov. 18, 2020), the U.S. 10th Circuit Court of Appeals affirmed the dismissal of a civil rights claim brought by the High Priestess/ Property Manager of Green Faith Ministry who objected to an attempt by a police officer and fire marshals to inspect the ministry's building. Officers apparently suspected marijuana usage or occupancy standard violations. The court rejected plaintiff's complaint that one officer told her to "praise the Lord." The court said in part:

Aguilera’s amended complaint does not allege facts indicating that an objective observer would view Officer Vargason’s purpose in saying “Praise the Lord” as an official endorsement of religion.

The court also rejected plaintiff's free exercise claim, concluding:

Aguilera has failed to allege that any defendant burdened her exercise of religious beliefs or practices.