Colorado Marijuana Ban May Be Applied To Cannabis Ministry

 In People v. Torline, (CO App., Nov. 12, 2020), a Colorado state appellate court held that Colorado’s law barring possession and growing of marijuana does not violate the state or federal Free Exercise rights of defendant, an ordained minister who grows the plants as part of his Cannabis Ministry. The court said in part:

[T]he incorporation of marijuana and marijuana concentrate into religious rituals is subject to regulation on equal terms with secular marijuana use. Colorado law does not penalize such conduct because of its religious character.

Suit Challenging Louisiana COVID-19 Limits On Churches Fails

 In Spell v. Edwards, (MD LA, Nov. 10, 2020), a Louisiana federal district court dismissed a suit by a pastor challenging the state's COVID-19 limits on worship services. The court held that plaintiffs' claim for injunctive relief is moot because the specific Proclamation they challenge has expired. The court also dismissed plaintiffs' claim for damages, saying in part:

Governor Edwards's Proclamations have always treated comparable secular institutions similarly to comparable religious institutions.... 

To the extent that Plaintiffs argue that any restrictions on their right to gather violate the U.S. Constitution, they are clearly incorrect.

The Advocate reports on the decision.

Certiorari Denied In Challenge To "So Help Me God" In Citizenship Oath

 Yesterday the United States Supreme Court denied review in Perrier-Bilbo v. United States, (Docket No. 20-349, certiorari denied 11/9/2020). (Order List.) In the case, the U.S. 1st Circuit Court of Appeals rejected constitutional challenges to the inclusion of "so help me God" at the end of the oath of allegiance administered at naturalization ceremonies. (See prior posting.)  Friendly Atheist reports on the Supreme Court's action.

Suit Against Trump For Misleading Christians Is Dismissed For Lack of Standing

In Kelly v. Trump, (Del. Chancery, Nov. 2, 2020), a Delaware Chancery Court Master recommended dismissing as legally frivolous a suit against President Donald Trump alleging that he violated plaintiff's free exercise and Establishment Clause rights. The court said that plaintiff "has not shown an actual or concrete injury to her caused by Trump’s conduct....  Her contentions are too remote and vague to be actionable."  The court described plaintiff's allegations in part as follows:

Kelly’s main theory of her case is that Trump creates the illusion of being a devout Christian, while engaging in acts that Kelly contends are against the main tenets of Christianity. She claims that his actions substantially burden and injure her “free exercise of religion”... by [his] increased threat of government sponsored religious persecution.... Kelly alleges that ... he is misleading people, deceiving them to sin, and dooming them to hell. The primary harm Kelly claims is that, because Trump is leading people to hell, Kelly will not be able to love them for eternity. She also alleges that she is persecuted ... because of Trump’s support for one religious belief, and suppression of others....

Supreme Court Will Hear Oral Arguments Today In Catholic Foster Care Agency Case

Today, the U.S. Supreme Court will hear oral arguments in Fulton v. City of Philadelphia. In the case,  the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples. (See prior posting.) Links to pleadings and briefs filed in the case, as well as to commentary on the case, are at the SCOTUSblog case page. When the transcript and/or recording of oral arguments become available later today, I will post a link to them.

UPDATE: Here is the transcript of the oral arguments, and here is the audio of the arguments.

Suit Filed Over School's Ban On Religious Messages On COVID-19 Masks

Suit was filed yesterday in a Mississippi federal district court challenging the policy of a Mississippi elementary school that prohibits display of religious (as well as political and sexual) messages on masks worn during the COVID-19 pandemic. The complaint (full text) in L.B. v. Simpson County School District, (SD MS, filed 11/2/2020), alleges that school officials would not allow a third-grade student to wear her mask that displayed the phrase "Jesus Loves Me". The suit claims this amounts to violation of the free speech, free exercise and due process clauses. ADF issued a press release announcing the filing of the lawsuit.

Indian Tribe Loses Free Exercise Claim In Suit Over Handling of Human Remains At Alamo

In Tap Pilam Coahuiltecan Nation v. Alamo Trust, Inc., 2020 U.S. Dist. LEXIS 201209 (WD TX, Sept. 23, 2020), a Texas federal district court dismissed a suit brought by an Indian tribe complaining that-- because they are not a federally recognized tribe-- they were excluded from the human remains protocol governing remains found during renovations at the Alamo. Plaintiffs contended that their exclusion discriminates against them because of their race and religion, and violates their free exercise rights. The court said in part:

Plaintiffs state that their core religious beliefs require that when a body is moved, they must perform a "forgiveness ceremony," seeking the deceased ancestor's forgiveness for disturbing their final resting place....

Plaintiffs are seeking to gain participation in the human remains protocol and permission to conduct their ceremony in the Alamo Chapel. Indeed, as Defendants point out, inclusion in the human remains protocol and permission to enter the Alamo Chapel outside of operating hours to conduct a religious ceremony are both "benefit[s] that [are] not otherwise generally available[.]" Patterson, 398 F. Supp. 3d at 123. Rather, they are benefits Plaintiffs seek to exact from Defendants. Such relief is unavailable under Lyng. 485 U.S. at 451; Patterson, 398 F. Supp. 3d at 123....

Suit Challenges Michigan Mask Mandate Imposed On Catholic School

Suit was filed last week in a Michigan federal district court challenging state COVID-19 orders requiring elementary school students to wear masks during the school day. The complaint (full text) in Resurrection School v. Gordon, (WD MI, filed 10/22/2020), alleges, among other things, that the requirement violates students' free exercise and free speech rights. The complaint, brought by a Catholic school along with some students and parents, alleges in part:

At the start of the school year in August 2020, Plaintiffs C.M., Z.M., and N.M. were beginning to engage in Catholic fellowship with their classmates and form relationships with other children based upon the teachings and example of Jesus Christ. Mandating Plaintiff Mianecki’s young children to wear facial coverings is hindering the formation of these bonds and prevents the body of Christ from freely associating....

When wearing facial coverings, Plaintiffs C.M., Z.M., and N.M struggle to engage in and celebrate the Mass....

For many, including Plaintiffs, forcing them to wear a face mask is forcing them to convey a message with which they disagree even when socially distanced in private homes or non- public schools. Wearing a mask conveys the message that the wearer has surrendered his or her freedom to the government, particularly in light of the facts of this current declared pandemic. During this current political climate, a mask has become a symbol. And because a mask has become a political symbol, the wearing of a mask is a form of symbolic speech. Consequently, via the mask mandates, Defendants are compelling Plaintiffs to engage in a form of expression and to convey a message with which they disagree.

Lansing State Journal reports on the lawsuit.

Religious Claim To Cancel Social Security Participation Fails

 In Davis El v. Saul, 2020 U.S. Dist. LEXIS 194196 (MD TN, Oct. 20, 2020), a Tennessee federal district court adopted a magistrate's recommendation (2020 U.S. Dist. LEXIS 195880 (Aug. 31, 2020)) and dismissed a suit by plaintiff who claimed that his free exercise rights, and other constitutional rights, were violated because the government gave him no way to terminate his participation in the Social Security system. The court affirmed the magistrate's conclusion that the Anti-Injunction Act bars the suit.   The magistrate said in part:

Plaintiff does not deny that he could fill out and submit Form 4029 and thereby possibly receive a religious exemption. Instead, he argues that he should not have to follow the required procedure because he does not want a religious exemption to SSI; he wants to "cancel" the contract he perceives to exist between himself and SSA....

Plaintiff has provided no authority for his proposition that not being provided with an alternative to requesting a religious exemption is itself a First Amendment violation....

Because Plaintiff's claims ultimately seek to enjoin the assessment and collection of a federal tax and Plaintiff cannot satisfy either prong of the limited exception to the Anti-Injunction Act's jurisdictional bar, this Court lacks subject matter jurisdiction over Plaintiff's claims.

Student Sues Over Ban On Shirt With Anti-Gay Message

Suit was filed in a Tennessee federal district court last week by a high school student and her father challenging a public school's interpretation of a Policy in its Student Handbook that bars clothing with offensive messages, including sexual connotations.  The school insisted that the Policy prohibits plaintiff from wearing a shirt featuring the message "homosexuality is a sin-- 1 Corinthians 6:9-10".  The suit contends that this violates plaintiff's free exercise and free speech rights. The complaint (full text) in B.A.P. v. Overton County Board of Education, (MD TN, filed 10/16/2020), alleges in part:

Plaintiffs have a personal belief in the Biblical mandate to spread the Gospel of Jesus Christ, and Plaintiff B.A.P. engages in activities, for the purpose of spreading the Gospel of Jesus Christ, that are prohibited by the [school's] Policy.

WZTV reports on the lawsuit.

Native American Band Fails In Attempt To Halt Border Barrier Construction

 In Manzanita Band of the Kumeyaay Nation v. Wolf, (D DC, Oct. 16, 2020), in a suit by a Native American tribe the D.C. federal district court refused to enjoin construction on two barrier projects along the U.S.-Mexico border in California. The court said in part:

The Kumeyaay’s principal claim of injury is this: So long as construction at the Projects continues without proper consultation and mitigation measures, it will “unavoidably damage” cultural and religious sites and artifacts, as well as the natural setting and resources “on which the sacred nature of such sites depends.”... The Court does not doubt the significance of the region to the Kumeyaay’s religion. But they have not made a clear showing to support their contention for any of these alleged harms....

For starters, no Kumeyaay burial sites or remains have been identified within the narrow strip of federal land where construction is taking place, even after the Government surveyed and re-surveyed the land.

Rockland County (NY) Synagogues Sue Over Targeted COVID-19 Order

Another lawsuit challenging New York Gov. Andrew Cuomo's Oct. 6 Executive Order targeting Covid-19 hot spots was filed on Wednesday by three Hasidic Jewish congregations in Rockland County (NY).  The complaint (full text) in Congregation Yesheos Yakov v. State of New York, (SD NY, filed 10/14/2020), alleges that the Order was directed at "activities of specific minority religious communities during one of the most important religious holidays in their faith." Alleging numerous violations of the 1st and 14th Amendments, the complaint says in part:

2. The Governor freely and repeatedly admitted his decision was not driven by science, or data, but, by “fear.”

3. Based on this fear, and not on any epidemiological or other objective data, Governor Cuomo’s Executive Order No. 202.68 ... established colorcoded COVID-19 “hot-spot” zoning areas subject to gathering limits and restrictions that singled out as “hot-spots” known enclaves of the Hasidic and strictly-observant Jewish Orthodox communities.

PJ Media reports on the lawsuit.

Another Religious Challenge To California's COVID-19 Orders

 In a suit filed late last month, a Catholic priest has challenged California Governor Gavin Newsom's COVID-19 emergency orders.  the 77-page complaint (full text) in Burfitt v. Newsom, (CA Super. Ct., filed 9/29/2020) charges that the Governor's orders violate various provisions of the California state constitution, including free exercise, equal protection, liberty of speech and equal protection.  Thomas More Society issued a press release announcing the filing of the lawsuit.

Dakota Access Pipeline Protesters Can Move Ahead On Free Speech, But Not Free Exercise, Claims

In Thunderhawk v. County of Morton, North Dakota, (D ND, Sept. 1, 2020), plaintiffs challenged on numerous constitutional grounds North Dakota's closure of Highway 1806 which was used by the Standing Rock Sioux Tribe and thousands of its supporters to access campsites set up to protest construction of the Dakota Access Pipeline. In a 101-page opinion (which has just been widely made available) the court allowed plaintiffs to move ahead with their claims that the closure prevented them from engaging in protected speech and amounted to a prior restraint on speech. The court however rejected plaintiffs' free exercise claims, saying in part:

While the Plaintiffs provided facts in the Amended Complaint to suggest the Defendants’ actions in closing the road may not meet strict or intermediate scrutiny for their free speech claims, they have failed to allege facts suggesting the road closure may not meet rational basis as it relates to their free exercise claim. Because the Plaintiffs have failed to meet this burden, and as a result of neither Smith exceptions applying in this case to heighten the standard to strict scrutiny, Claim II is dismissed.

The court also rejected a variety of other constitutional challenges including right to travel and commerce clause claims. Turtle Talk blog has links to all the pleadings in the case.

9th Circuit Upholds California's COVID Restrictions On Religious Services

 In Harvest Rock Church, Inc. v. Newsom, (9th Cir., Oct. 1, 2020), the U.S. 9th Circuit Court of Appeals in a 2-1 decision refused to issue a preliminary injunction against Governor Gavin Newsom’s COVID-19 Orders that restrict in-person worship services. The majority said in part: 

The evidence that was before the district court does not support Harvest Rock’s arguments that the Orders accord comparable secular activity more favorable treatment than religious activity. The Orders apply the same restrictions to worship services as they do to other indoor congregate events, such as lectures and movie theaters....

Harvest Rock also contends that the Governor failed to provide a rationale for the more lenient treatment of certain secular activities, such as shopping in a large store. However, the Governor offered the declaration of an expert, Dr. James Watt, in support of the claim that the risk of COVID-19 is elevated in indoor congregate activities, including in-person worship services.

Judge O'Scannlain dissented, saying in part:

There is no doubt that California’s COVID-19 scheme ... imposes direct and severe burdens on religious practice within the State. And where a State imposes such burdens through measures that are not “neutral and of general applicability,” its actions must survive strict scrutiny.... Because California’s COVID-19 regulations patently disfavor religious practice when compared to analogous secular activities, I believe that the church is quite likely indeed to succeed on the merits of its challenge to such regulations.

Los Angeles Times reports on the decision.

Alabama's Voter Registration Oath Is Challenged

Yesterday four Alabama residents filed suit challenging language in Alabama's voter registration form. The oath in the form ends with "so help me God." No secular alternative is available.  The complaint (full text) in Cragun v. Merrill, (ND AL, filed 10/01/2020) contends that the absence of a secular alternative violates the Establishment, Free Exercise, Free Speech and Equal Protection Clauses. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

Denial of Church's Sewer Extension Application Did Not Violate RLUIPA or Constitution

 In Canaan Christian Church v. Montgomery County, Maryland, (D MD, Sept. 30, 2020), a Maryland federal district court, in a 54-page opinion, rejected challenges to the county's refusal to extend public sewer lines to a site on which plaintiffs wished to build a 2000-seat church. The court rejected plaintiff's "substantial burden" claim under RLUIPA, finding that the church had no reasonable expectation that the sewer extension would be approved.  The court also rejected RLUIPA "unreasonable limits" and "unequal terms" claims. It went on to reject equal protection and free exercise challenges.

Preliminary Injunction Denied In Suit Targeting Colorado's COVID-19 Limits On Size of Religious Gatherings

On Monday, a challenge to Colorado's COVID-19 orders was filed.  In a 98-page complaint, a religious conference center and affiliated Bible college claim that Colorado's limitation on the number of persons who can attend in-person religious services violates its 1st and 14th Amendment rights. The complaint (full text) in Andrew Wommack Ministries, Inc. v. Polis, (D CO, filed 9/28/2020), alleges unconstitutional discrimination between religious gatherings and non-religious gatherings, as well as between the Ministries' religious and nonreligious gatherings in the same facilities, giving examples such as:

178. Under the Governor’s Orders, AWMI’s volunteers may provide nonreligious counseling, social services, and other necessities of life for women constituents of Life Network’s Colorado Springs Pregnancy Center and Choices Pregnancy Center may be administered in unlimited numbers, provided only that social distancing is satisfied.

179. But, if volunteers associated with AWMI and Charis Bible College students transition from providing these women with counseling, social services, food, clothing, and other necessities of life to providing them spiritual counseling, spiritual food in the form of communion, or otherwise transitions to a religious worship service with the same women in the same room, the Governor’s Orders would automatically subject them to criminal penalties for hosting an impermissible worship service if there is more than 175 women in the room.

The complaint says that speedy relief is required:

4. The Governor’s Orders interfere with and place a cloud of potential criminal and civil legal action over AWMI’s upcoming Pastor’s Conference scheduled to begin at 7:00 PM on October 5, 2020. In addition to outside pastors and ministers who are invited to the conference, attendance at the conference is a required part of the education program for all 652 students at Charis Bible College.

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

On Tuesday, in a 7-page order (full text), a Colorado federal district judge denied a preliminary injunction, pointing out:

United States District Judge Raymond Moore recently rejected Plaintiff’s arguments in High Plains Harvest Church v. Polis.... Additionally, the Seventh Circuit recently rejected a church’s argument that similar public health laws unconstitutionally favored secular activity

Plaintiff immediately filed a Notice of Appeal.

Mask-In-School Requirement Challenged On Free Exercise Grounds

Suit was filed last week in an Ohio state trial court challenging as too narrow the religious exemption from Ohio's COVID-19 mask requirement in schools. The complaint (full text) in Miller v. Himes, (Putnam Cty. Com Pl., filed Sept. __, 2020), contends that the exemption for students "when an established sincerely held religious requirement exists which does not permit a facial covering" violates their free exercise rights. A school district denied an exemption to one of the plaintiffs even though she had a sincerely held religious belief  opposing masks. The district took the position that a belief is different from a religious requirement.  The suit also challenges the school mask requirement on various other grounds, including compelled speech and parental rights claims. Cincinnati Enquirer reports on the lawsuit.

Court Denies Summary Judgment In Attempt To Permanently Enjoin Disclosure Requirements By Pro-Life Pregnancy Centers

 In National Institute of Family and Life Advocates v. Rauner, (ND IL, Sept. 3, 2020), an Illinois federal district court denied summary judgment to two pro-life crisis pregnancy centers that are seeking to permanently enjoin enforcement of an Illinois statutory provision conditioning immunity for health care providers on their disclosure of medical options, including those that conflict with their religious beliefs. They must also facilitate patients' obtaining such services from others. In 2017, a different federal district court judge issued a preliminary injunction against enforcement of the Act. (See prior posting.) In refusing at this stage of litigation to make the injunction permanent, the court said in part:

In this litigation, Plaintiffs allege that the CPCs’ ability to promote their religiously motivated pro-life messaging ... are threatened by changes to the Illinois Healthcare Right of Conscience Act adopted in 2016....The law will compel them, Plaintiffs assert, to discuss the benefits of treatments they deem objectionable: abortion, contraception, or sterilization. Likewise, under the law, Plaintiffs must facilitate those treatments by providing patients with lists of doctors who provide those services or by transferring or referring patients to them. Both requirements violate Plaintiffs’ First Amendment Speech and Free Exercise rights, they claim....

Starting with the requirement to discuss the benefits of abortion, the court agrees with Defendant that as in Casey, this is a regulation of professional conduct that only incidentally burdens speech....

The court is mindful that from Plaintiffs’ perspective, the law compels speech on a message antithetical to their beliefs and thereby contradicts this Free Speech principle. But the court too recognizes that Plaintiffs’ patients are no less deserving of this right to decide for themselves what ideas are worth considering and adhering to, and the state may be well within its powers to protect this principle in a context involving “matters of the highest privacy and the most personal nature.”...

If the law does no more than bring the regulations of conscience objectors into conformity with that of other medical professionals (again, still a disputed issue), then the amended HCRCA may not be characterized as discriminating against religious medical professionals. The law’s text and history ... suggest instead that the legislature adopted the changes due to legitimate concerns about patient access to healthcare and not out of a desire to stifle religiously-motivated conduct.