9th Circuit Upholds California School Curriculum On Hinduism

 In California Parents for the Equalization of Educational Materials v. Torlakson, (9th Cir., Sept. 3, 2020), the U.S. 9th Circuit Court of Appeals upheld the dismissal of a suit claiming that California's History-Social Science Standards and Framework incorrectly describe Hinduism and treat it negatively in relation to the treatment of other religions. Rejecting plaintiffs' free exercise claims, the court said in part:

Appellants allegations suggest at most that portions of the Standards and Framework contain material Appellants find offensive to their religious beliefs. .... Offensive content that does not penalize, interfere with, or otherwise burden religious exercise does not violate Free Exercise rights. 

The court also rejected equal protection, due process and establishment clause challenges. Education Week reports on the decision.

Catholic Student Sues After He Is Removed As University Student Senate President Because of His Views

Suit was filed this week in Florida federal district court claiming that plaintiff's free speech and free exercise rights were infringed when he was removed as president of Florida State University's Student Senate.  The complaint (full text) in Denton v. Thrasher, (ND FL, filed 8/31/2020), alleges in part:

Mr. Denton is a devout Catholic, and he expressed basic Catholic teachings to other Catholic students in a private group chat. But, because Catholic teachings have implications for some social issues that some consider offensive, those messages were shared, student outrage was fomented, and the Student Senate implemented an ad hoc religious test for office: no one with Mr. Denton’s beliefs can hold a leadership position in our Student Senate (even if they only talk about those beliefs in private)....

The complaint describes the contents of plaintiff's group chat with members of the Catholic Student Union:

One student shared a link to a video on YouTube that raised advertising and donation revenue for several organizations.... Mr. Denton observed that, “The various funds on that list are fine causes as far as I know, but everyone should be aware that BlackLivesMatter.com, Reclaim the Block, and the ACLU all advocate for things that are explicitly anti-Catholic.” ... “BlackLivesMatter.com fosters ‘a queer-affirming network’ and defends transgenderism. The ACLU defends laws protecting abortion facilities and sued states that restrict access to abortion. Reclaim the Block claims less police will make our communities safer and advocates for cutting PDs’ budgets. This is a little less explicit, but I think it’s contrary to the Church’s teaching on the common good.”

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

10th Circuit: Inmate Has Equal Protection, But Not RFRA, Claim Over Prayer Space

 In Tenison v. Byrd, (10th Cir., Aug. 28, 2020), the U.S. Tenth Circuit Court of Appeals reversed an Oklahoma federal district court's dismissal of a Muslim inmate's claim that his equal protection rights were violated when he was not allowed to pray in the prison day room. Plaintiff alleged that Christian prayer was allowed in day rooms. The court concluded:

If believed, Tenison’s evidence is sufficient for a reasonable factfinder to conclude that Christians seeking to practice their religion in the dayroom deliberately are treated differently (and more favorably) than Muslims.

The court, however, rejected plaintiff's claim that his free exercise rights under the 1st Amendment and RFRA were  substantially burdened, saying in part:

We are not persuaded, however, that requiring Tenison to return to his cell to pray either prevents him from praying or subjects him to substantial pressure not to pray. Tenison is not prevented from praying; he simply must plan his dayroom time around the times he must be in his cell to pray. And having to forgo an unspecified amount of dayroom time does not amount to substantial pressure not to return to his cell to pray.

Worshipers Lack Standing to Sue Synagogue Picketers

 In Gerber v. Herskovitz, (ED MI, Aug. 19, 2020), a Michigan federal district court dismissed for lack of standing a lawsuit against protesters who for almost 18 years have picketed an Ann Arbor, Michigan synagogue every Saturday morning with anti-Jewish and anti-Israel signs. Plaintiffs, who attend Sabbath services in the synagogue or in an adjacent building, also sued the city of Ann Arbor for failing to enforce the City Code against the protesters.  Plaintiffs contend that the picketing interferes with their Free Exercise right to practice their religion without being harassed. The court held, however:

There is no allegation that the protestors prevent Plaintiffs from attending Sabbath services, that they block Plaintiffs’ path onto the property or to the Synagogue, or that the protests and signs outside affect the services inside. Plaintiffs merely allege that the Defendants’ conduct causes them distress and “interferes” with their enjoyment of attending religious services. This is the “subjective chill” that is “not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-14 (1972). This type of “chill” does not confer standing and is not actionable. 

Islamic Terrorism Unit In Course Does Not Violate 1st Amendment

In Sabra v. Maricopa County Community College District, (D AZ, Aug. 18, 2020), an Arizona federal district court dismissed a suit challenging the manner in which a community college faculty member taught a portion of a World Politics course. Plaintiffs contend that the instructor's primary message in teaching the Islamic Terrorism module of the course was disapproval of Islam.The court rejected both Establishment Clause and Free exercise challenges, saying in part:

Examining the course as a whole, a reasonable, objective observer would conclude that the teaching’s primary purpose was not the inhibition of religion. The offending component was only a part of one-sixth of the course and taught in the context of explaining terrorism. One aspect of terrorism is Islamic terrorism. Only in picking select quotes from the course can one describe the module as anti-Islam.... [T]he primary effect of Dr. Damask’s course is not the inhibition of the practice of Islam. Therefore, the Plaintiffs’ Establishment Clause claims must be dismissed....

Mr. Sabra was not required to adopt the views expressed by Dr. Damask or the authors Dr. Damask cited to in his course, but only to demonstrate an understanding of the material taught. Dr. Damask’s course did not inhibit Mr. Sabra’s personal worship in any way. Instead, Mr. Sabra was simply exposed to “attitudes and outlooks at odds” with his own religious perspective.... Therefore, as a matter of law, the Court finds that the Plaintiff’s allegations do not amount to a violation of the Free Exercise Clause by the Defendants....

[Thanks to Volokh Conspiracy for the lead.]

Suit Claims Mask Requirement At Church Services Violates Free Exercise Protections

 A suit filed last week in a Florida state trial court contends that a Florida county's COVID-19 face covering requirement violates, among other things, the free exercise rights of plaintiff, a pastor.  The complaint (full text) in Tillis v. Manatee County, (FL Cir. Ct., filed 8/2/2020) contends that the mask requirement violates the state constitution's free exercise clause, as well as the Florida Religious Freedom Restoration Act because it:

requires both clergy members like Plaintiff and churchgoers to wear masks during service or face government civil fines and punishment.... [T]he requirement to wear a mask ... infringes upon the free exercise of Plaintiff's religion by making it more difficult for him to preach and for members of the choir at his church to sing.

The Conversation reports on the lawsuit.

Limits On Street Preacher At Farmers Market Are Upheld

In Denton v. City of El Paso, 2020 U.S. Dist. LEXIS 135896 (WD TX, July 28, 2020), a Texas federal district court rejected free speech, free exercise and other challenges to a policy that prevents plaintiff, a street preacher, from proselytizing at the El Paso Art and Farmers Market. The city bars fundraising, political campaigning or religious proselytizing at the event. It also requires non-profits to distribute information only from designated booth space and bars organizations from approaching or shouting to those passing by.

The court said in part:

[C]onsidering the evidence in the record thus far, Plaintiff has not carried his burden to demonstrate a clear likelihood that the City's policy is content based. Instead, the evidence strongly suggests that the policy is content neutral.

...Because the City seeks to preserve the Market as a space for its visitors to converse with each other and local artisans and enjoy buskers' performances, it has a substantial interest in eliminating disruptive noise....

Moreover, the City also asserts a related economic interest in promoting vendors' ability to sell their wares without "having to shout over someone"...

Satanic Temple Has Promissory Estoppel Claim After Its Permit To Erect Memorial Was Voided

In The Satanic Temple v. City of Belle Plaine, Minnesota, (D MN, July 31, 2020), a Minnesota federal district court dismissed free exercise, free speech and equal protection claims by the Satanic Temple which objected to the city's Resolution 17-090 which rescinded a prior resolution that created a limited public forum in Veterans Memorial Park. The earlier resolution allowed individuals and organizations to erect and maintain privately owned displays to honor local veterans and veterans' organizations. The Satanic Temple had received a permit to erect a display, and spent substantial amounts for its design and construction, before the rescission. It argues that the rescission came about because of the controversial nature of its display.  The court said in part:

[A]lthough TST identifies the core tenants of its religion, TST fails to explain or allege facts that identify any central tenet of its religious beliefs that TST cannot exercise because of Resolution 17-090. Second, TST alleges no facts demonstrating that Resolution 17-090 prevents TST from expressing adherence to its faith. And third, TST fails to allege whether and how any activity that Resolution 17-090 prohibits is fundamental to TST’s religion.

The court however allowed Satanic Temple to move ahead with its promissory estoppel claim, saying in part:

TST sufficiently alleges that Belle Plaine should have reasonably expected that TST would expend time and resources to construct a display after receiving approval and that TST in fact expended such time and resources.

Finally, TST alleges sufficient facts that enforcement of Belle Plaine’s promise may be necessary to avoid injustice.

Wedding Services Company Challenges Public Accommodation Non-Discrimination Ordinance

A Christian minister, Kristi Stokes, the owner of Covenant Weddings LLC, filed suit in an Ohio federal district court this week challenging the constitutionality of Cuyahoga County, Ohio's public accommodation ordinance (full text) which which makes it illegal for any public accommodation to

discriminate against, or treat differently any person except for reasons applicable alike to all persons regardless of race, color, religion, military status, national origin, disability, age, ancestry, sex, sexual orientation, or gender identity or expression...

The complaint (full text) in Covenant Weddings LLC v. Cuyahoga County, (ND OH, filed 7/22/2020) alleges in part:

The County ... cannot rescind religious liberty and free speech by relabelling them discrimination....

Through Covenant Weddings, Kristi personally officiates and writes custom homilies, vows, and prayers for weddings...

The Accommodations Clause forces Kristi to provide her wedding services for same-sex wedding ceremonies or for wedding ceremonies where a marrying individual identifies as the opposite sex and would require Kristi to proclaim messages and to participate in religious ceremonies that violate her religious beliefs, which she cannot do.... 

This undercuts Kristi’s message (expressed elsewhere in her social media accounts and wedding services) celebrating marriage between one man and one woman; harms Kristi’s reputation among her past and prospective clients; undermines her editorial control over what services she offers to the public; and adversely affects Kristi’s ability to share biblical truths about marriage with others....

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

Court Rejects Church's Claim That Its Free Exercise Rights Include Cockfighting

In Plumbar v. Perrilloux, (MD LA, July 13, 2020), a Louisiana federal district court refused to issue a preliminary injunction against enforcement of Louisiana's statute that bans cockfighting.  Members of Holy Fight Ministries claim that cockfighting is an integral and essential part of their religious faith. In denying the injunction, the court said in part:

Defendants have provided satisfactory evidence to show that the state has a compelling interest in enacting a law banning cockfighting and because the evidence casts doubt upon the type of institution operated by Plaintiffs. In other words, the evidence suggests that the cockfighting activities were more commercial in nature than a bona fide religious ritual.

Court Upholds New Mexico's COVID-19 Limits On Church Services In Lengthy Opinion

In a 268-page opinion in Legacy Church, Inc. v. Kunkel, (D NM, July 13, 2020), Legacy Church lost its challenges under the Free Exercise Clause and the Freedom of Assembly Clause to New Mexico Department of Health Kathyleen Kunkel’s Public Health Emergency Orders imposing various restrictions on gatherings for religious services. Summarizing its holdings, the court concluded that the Public Health Orders "are neutral with respect to religion and generally applicable;" and they "are unrelated to the suppression of speech or religion, serve a compelling state, interest, and less restrictive alternatives are not available."

Jewish Summer Camps In New York Lose Challenge To COVID-19 Closures

In Ass'n of Jewish Camp Operators v. Cuomo, (ND NY, July 6,2020), a New York federal district court rejected arguments that New York state, among other things, violated the Free Exercise clause "by discriminatorily banning children’s Jewish overnight camps (while exempting favored secular conduct) in a way that is not narrowly tailored to curbing the transmission of the COVID-19 virus...." The court said in part:

Plaintiffs argue that Defendant’s executive orders are not neutral because his refusal to allow overnight camps to open effectively targets Jewish overnight camps (given that almost all of the secular or non-Jewish overnight camps had already decided they would not open in the summer of 2020 by the time Defendant and Health Commissioner Zucker specifically clarified on June 12, 2020, that overnight camps would not be allowed to open). Although it is true that “[t]he effect of the law in its real operation is strong evidence of its object,” it is likewise true that “adverse impact will not always lead to a finding of impermissible targeting.” ... Plaintiffs have provided no factual allegations or evidence to indicate that the fact that only Jewish overnight camps have continued to plan to open for the summer leads to the conclusion that Defendant’s executive orders have targeted the Jewish faith. To the contrary, it is undisputed that Defendant’s ban on overnight camps applies equally to all such camps, regardless of the camps’ religious (or secular) nature. The fact that Plaintiffs have maintained a hope and willingness to operate or send their children to overnight camps this summer longer than most persons involved with secular or non-Jewish overnight camps does not somehow turn Defendant’s facially neutral executive order into impermissible targeting.

The court also rejected 14th Amendment challenges contending that the closures infringed parental rights to control the upbringing of their children. Times Herald Record reports on the decision.

Suit Challenges Virginia's Ban On LGBT Discrimination In Public Accommodations

Suit was filed on Tuesday in a Virginia federal district court by a wedding photographer challenging the Virginia Values Act which  prohibits businesses from discriminating on the basis of sexual orientation. The complaint (full text) in Chris Herring Photography, LLC v. Herring, (ED VA, filed 6/30/2020) alleges in part:

Virginia interprets this law to force Chris to do more than serve LGBT clients (which Chris already does). Virginia instead requires Chris to promote content he disagrees with—to create and convey photographs and blogs celebrating same-sex weddings because he does so for weddings between a man and a woman. The law even makes it illegal for Chris to hold a policy of photographing and blogging about weddings only between a man and woman or to post internet statements explaining his religious reasons for only creating this wedding content.

ADF issued a press release announcing filing of the lawsuit.

Supreme Court Says Montana Cannot Exclude Religious Schools From Tax-Credit Program

In Espinoza v. Montana Department of Revenue, (US Sup. Ct., June 30, 2020), the U.S. Supreme Court in a 5-4 decision held that Montana's exclusion of religious schools from its scholarship tax credit program violates the Free Exercise clause of the U.S. Constitution.  The Montana Supreme Court had invalidated the entire scholarship program because it included religious schools, relying on the "no aid" provision of the Montana constitution.  Chief Justice Roberts majority opinion, joined by Justices Thomas, Alito, Gorsuch and Kavanaugh, said in part:

This case also turns expressly on religious status and not religious use. The Montana Supreme Court applied the no-aid provision solely by reference to religious status. The Court repeatedly explained that the no-aid provision bars aid to “schools controlled in whole or in part by churches,” “sectarian schools,” and “religiously-affiliated schools.”... Applying this provision to the scholarship program, the Montana Supreme Court noted that most of the private schools that would benefit from the program were “religiously affiliated” and “controlled by churches,” and the Court ultimately concluded that the scholarship program ran afoul of the Montana Constitution by aiding “schools controlled by churches.”... The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran, which excluded organizations “owned or controlled by a church, sect, or other religious entity.”...

...Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.

Justice Thomas filed a concurring opinion which was joined by Justice Gorsuch, saying in part:

I write separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights. Until we correct course on that interpretation, individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom.

Justice Alito filed a concurring opinion, saying in part:

Respondents argue that Montana’s no-aid provision merely reflects a state interest in “preserv[ing] funding for public schools,”... known as “common schools” during the Blaine era. Yet just as one cannot separate the Blaine Amendment from its context, “[o]ne cannot separate the founding of the American common school and the strong nativist movement.”  Spearheaded by Horace Mann, Secretary of the Massachusetts Board of Education from 1837 to 1848, the common-school movement did not aim to establish a system that was scrupulously neutral on matters of religion. (In a country like ours, that would have been exceedingly difficult, if not impossible.) Instead the aim was to establish a system that would inculcate a form of “least-common denominator Protestantism.”This was accomplished with daily reading from the King James Bible, a curriculum that, Mann said, let the book “speak for itself.” ... Yet it was an affront to many Christians and especially Catholics, not to mention non-Christians.

Mann’s goal was to “Americanize” the incoming Catholic immigrants. In fact, he and other proponents of the common-school movement used language and made insinuations that today would be considered far more inflammatory.

Justice Gorsuch filed a concurring opinion, saying in part:

 I was not sure about characterizing the State’s discrimination in Trinity Lutheran as focused only on religious status, and I am even less sure about characterizing the State’s discrimination here that way....

Maybe it’s possible to describe what happened here as status-based discrimination. But it seems equally, and maybe more, natural to say that the State’s discrimination focused on what religious parents and schools do—teach religion....

Most importantly, though, it is not as if the First Amendment cares. The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.

Justice Ginsburg filed a dissenting opinion, joined by Justice Kagan, saying in part:

[T]he Montana court remedied the state constitutional violation by striking the scholarship program in its entirety. Under that decree, secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioners’ religion.

Justice Breyer filed a dissenting opinion, joined in part by Justice Kagan, saying in part:

It is true that Montana’s no-aid provision broadly bars state aid to schools based on their religious affiliation. But this case does not involve a claim of status-based discrimination. The schools do not apply or compete for scholarships, they are not parties to this litigation, and no one here purports to represent their interests. We are instead faced with a suit by parents who assert that their free exercise rights are violated by the application of the no-aid provision to prevent them from using taxpayer-supported scholarships to attend the schools of their choosing. In other words, the problem, as in Locke, is what petitioners “‘propos[e] to do—use the funds to’” obtain a religious education. ....

I agree with the majority that it is preferable in some areas of the law to develop generally applicable tests. The problem, as our precedents show, is that the interaction of the Establishment and Free Exercise Clauses makes it particularly difficult to design a test that vindicates the Clauses’ competing interests in all—or even most—cases.That is why, far from embracing mechanical formulas, our precedents repeatedly and frankly acknowledge the need for precisely the kind of “‘judgment-by-judgment analysis’” the majority rejects.

Justice Sotomayor filed a dissenting opinion, saying in part:

Neither differential treatment nor coercion exists here because the Montana Supreme Court invalidated the tax-credit program entirely....

To be sure, petitioners may want to apply for scholarships and would prefer that Montana subsidize their children’s religious education. But this Court had never before held unconstitutional government action that merely failed to benefit religious exercise....

[T]he Montana Supreme Court remedied a state constitutional violation by invalidating a state program on state-law grounds, having expressly declined to reach any federal issue....

NPR reports on the decision.

Charter School May Not Exclude Vendor That Expresses Religious Views On Its Website

In Our Peculiar Family v. Inspire Charter Schools, (CD CA, June 23, 2020), a California federal district court refused to dismiss a free exercise challenge to the refusal by a publicly funded charter school to contract with an art instruction business because of the business' espousal of religious views on its website. The court said in part:

Defendants argue that their obligation to be “nonsectarian” in administering a school program required them to exclude any vendor that publicly espoused religious views.... Defendants are incorrect. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)....

Defendants’ policies here are even more preclusive than the unconstitutional policies in Trinity Lutheran. Not only do Defendants’ policies exclude all churches from providing services, they apparently preclude all services by any potential vendor with religious statements on their website. Defendants do not explain how institution of such a categorical requirement is in keeping with their obligation to facilitate “nonsectarian” services, nor do they offer facts to support that Plaintiffs’ application implicated Establishment Clause concerns. 

Suit Challenges City's Ban On Religious Christmas Displays On Public Property

The Knights of Columbus filed suit in a Delaware federal district court yesterday challenging Rehoboth Beach's policy adopted in 2018 of allowing only secular Christmas displays at the city's Bandstand Circle. The complaint (full text) in Knights of Columbus Star of the Sea Council 7297 v. City of Rehoboth Beach, Delaware, (D DE, filed 6/23/2020), alleges that since the 1930's a nativity scene had been displayed there during the Christmas season. It contends that the city, in allowing private groups to still erect secular displays, but insisting that the K of C display be placed on private property, violates plaintiff's free speech, free exercise and equal protection rights. First Liberty Institute issued a press release announcing the filing of the lawsuit.

Suit Challenges COVID-19 Closure of Jewish Overnight Camps

Suit was filed yesterday in a New York federal district court challenging New York COVID-19 orders that require Jewish overnight camps to remain closed this summer. The complaint (full text) in Association of Jewish Camp Operators v. Cuomo, (ND NY, filed 6/18/2020), alleges in part:

5. On June 12, 2020, Defendant announced that overnight camps would be closed for the summer of 2020 under his COVID-19 orders, without making any exceptions for Jewish overnight camps, notwithstanding that these overnight camps involve core religious exercise.

6. In contrast, Defendant has made a broad First Amendment exception from his COVID-19 orders for First Amendment activities that he favors. In particular, Defendant has created a de facto exemption from his COVID-19 orders for mass demonstrations ... even though these mass protests pose greater risks of the transmission of COVID-19 than do Jewish overnight camps.

7. Defendant also has allowed a wide array of similar, secular activities to remain open....

11. Defendant’s statewide closure of all Jewish overnight camps this summer violates Plaintiffs’ constitutional rights of the free exercise of religion and the fundamental rights of parents to control the religious education and upbringing of their children, guaranteed by the First and Fourteenth Amendments of the United States Constitution and Article III, § 3 of the New York Constitution. 

[Thanks to Steven H. Sholk for the lead.]

Minister Challenges Louisiana Cockfighting Ban

Suit was filed last week in a Louisiana federal district court by Holy Fight Ministries and its minister claiming that Louisiana's ban on cockfighting violates their federal and state free exercise rights as well as the Establishment Clause. The complaint (full text) in Plumbar v. Landry, (MD LA, filed 6/12/2020), alleges in part:

Reverend Plumbar, Holy Fight Ministries and its congregation hold the sincere religious belief that cockfighting represents that while they strive for CHRIST, they have a necessary symbolic physical manifestation, an epiphany through the fighting cock, a religious mandate of the struggle between good and evil, a struggle for life or death for the Salvation of the soul, and thus cockfighting is an integral and essential part of their religious faith.

[Thanks to Scott Mange for the lead.]

5th Circuit Upholds Texas Prison Chaplain Execution Protocol

In Gutierrez v. Saenz, (5th Cir., June 12, 2020), the U.S. 5th Circuit Court of Appeals vacated a stay of execution that had been granted to a convicted murderer who complained about Texas' exclusion of chaplains from the execution chamber.  The court said in part:

Gutierrez fails to make a strong showing of a likelihood of success in establishing that TDCJ’s execution policy is not “reasonably related to legitimate penological interests.” ...

Perhaps Gutierrez is being denied the final measure of spiritual comfort that might be available. As important as that is, government action does not rise to the level of a substantial burden on religious exercise if it merely prevents the adherent from enjoying some benefit that is not otherwise generally available.

Minnesota Amish Must Install Septic Tanks

In Mast v. County of Fillmore, (MN App., June 8, 2020), the Minnesota state Court of Appeals rejected claims by four members of the Amish community that laws requiring them to install septic systems to dispose of their waste water violate their freedom of conscience under the Minnesota Constitution and their rights under RLUIPA. The Court of Appeals said in part:

the district court appropriately concluded that respondents met their burden of demonstrating that appellants’ mulch-basin system does not provide a less-restrictive means of accomplishing the government’s compelling interests of protecting public health and the environment.

Rochester Post Bulletin reports on the decision.