Suit Challenges "In God We Trust" On Mississippi License Plates

Suit was filed yesterday in a Mississippi federal district court by atheist and secular humanist plaintiffs challenging the constitutionality of Mississippi including the state seal-- which carries the motto "In God We Trust" -- on its standard license plate. The complaint (full text) in Griggs v. Graham, (SD MI, filed 6/22/2021) alleges violations of both the free speech and free exercise clauses, saying in part:

The Standard Tag ... sends an ideological message endorsed by ... the State of Mississippi.... The Defendant enforces Mississippi statutes and maintains regulations, policies, practices, and customs that require a car owner to display license tags delivering the State of Mississippi’s chosen ideological message....

The statutes, rules, policies, practices, and customs enforced by Defendant ... are not neutral. Not only is “IN GOD WE TRUST” an expressly religious message, but the public statements of Mississippi officials ... demonstrate that hostility toward the Plaintiffs and other Mississippi car owners who lack religious beliefs was a motivation for selecting the current Standard Tag design.

WLOX reports on the lawsuit.

Cert. Filed In "Christian Flag" Case

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Shurtleff v. City of Boston. In the case, the U.S. 1st Circuit Court of Appeals upheld Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the petition.

Baker Violated Public Accommodation Law In Refusing To Sell Gender Transition Cake

Scardina v. Masterpiece Cakeshop, Inc., (CO Dist. Ct., June 15, 2021), is the latest installment in lawsuits against the owner of a Lakewood, Colorado bakery who refuses to furnish cakes that violate his religious beliefs.  Here, a transgender woman sought to order a birthday cake with a pink interior and blue exterior to reflect her transition from male to female. According to the court:

Mr. Phillips ... claims his religious beliefs prevent him from creating a custom cake celebrating a transition from male to female because expressing that message—that such a transition is possible and should be celebrated—would violate his religious convictions.... He and his wife believe that God designed people male and female, that a person’s gender is biologically determined, and that gender does not change based on an individual’s perception or feelings.....  

The court concluded that defendants violated the Colorado Anti-Discrimination Act, and that the law does not infringe defendants' free speech or free exercise rights:

Defendants denied Ms. Scardina goods and services because of her transgender status. Defendants admit that they were willing to make the requested cake until Ms. Scardina identified that she chose the colors to reflect and celebrate her identity as a transgender female....

The Court concludes that a reasonable observer of the requested cake would not attribute any message to Defendants and would not understand the cake to convey the message claimed by Defendants, i.e., endorsement of a gender transition. Therefore, Defendants have failed to carry their burden to show that providing the requested cake constituted any type of symbolic or expressive speech protected by the First Amendment.....

A press release from ADF says that the decision will be appealed.

Suspension of Teacher Who Objected To Transgender Policy Is Enjoined

In Cross v. Louden County School Board, (VA Cir. Ct., June 8, 2021), a Virginia state trial court issued a temporary injunction ordering the Louden County School Board to reinstate a teacher who was suspended for speaking at a school board meeting in opposition to proposed policies that would require teacher to address students using pronouns that conform to their gender identity.  The Board was also ordered to remove its ban on plaintiff's accessing school grounds. The court concluded:

Plaintiff's speech and religious content are central to the determination made by Defendants to suspend Plaintiff's employment.

ADF issued a press release announcing the decision.

FFRF Wins Right To Display "Bill of Rights Nativity Scene"

In Freedom from Religion Foundation v. Abbott, 2021 U.S. Dist. LEXIS 104950 (WD TX, May 5, 2021), on remand from the 5th Circuit, a Texas federal district court issued a declaratory judgment and an injunction barring state officials from excluding FFRF's "Bill of Rights Nativity Exhibit" from display space in the state capitol building under now-revised rules. The court said in part:

Defendants violate the Foundation's First Amendment rights and engage in viewpoint discrimination as a matter of law when they exclude the Foundation's Exhibit based on the perceived offensiveness of its message.

The court however rejected plaintiff's claim that the state has unconstitutional unbridled discretion under the current rules.

Catholic Group Challenges Zoning Refusal To Allow Building Of Chapel

Suit was filed this week in a Michigan federal district court challenging Genoa Township's refusal to allow a Catholic religious organization to develop and construct a 95-seat Chapel and prayer campus on land it acquired from the Diocese of Lansing in 2020. The Township has also demanded that all religious signage already on the property be removed. The complaint (full text) in Catholic Healthcare International, Inc. v. Genoa Charter Township, (ED MI, filed 6/2/2021), alleges that the Township's actions violate plaintiff's rights under RLUIPA, the Michigan Constitution and the First and 14th Amendments of the U.S. Constitution. American Freedom Law Center issued a press release announcing the filing of the lawsuit.

Suspended Teacher Who Opposed Policy On Transgender Students Sues

Suit was filed this week in a Virginia state trial court seeking a temporary restraining order and preliminary injunction to require the Loudon County School Board to reinstate Bryon Cross, a teacher who was suspended for comments he made at a public school board meeting. The Motion and Memorandum in Support (full text) in Cross v. Loudon County School Board, (VA Cir. Ct., filed 6/1/2021) contend that Cross' free speech and free exercise rights were violated when he was placed on administrative leave for opposing a proposed policy that would require teachers to address students using the student's preferred pronoun. At the school board meeting, Cross said in part:

I'm a teacher but I serve God first. And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion. It's lying to a child. It's abuse to a child. And it's sinning against our God.

ADF issued a press release announcing the filing of the law suit.

Challenges To Alabama COVID-19 Orders Are Unsuccessful

In Case v. Ivey, MD AL, June 1, 2021), six plaintiffs brought a range of constitutional challenges to Alabama Governor Kay Ivey's COVID-19 Orders. In a 68-page opinion, the court dismissed all of them-- some on standing or mootness grounds, others on substantive or qualified immunity grounds. Among the claims, one plaintiff contended that the Orders denied her the right to attend the church of her choice. Two pastors claimed that the Orders resulted in the denial of their right to preach and conduct in-person services. The court concluded that defendants had qualified immunity as to the damage claims against them for violating the First Amendment's Free Exercise, Freedom of Assembly and Establishment Clauses because plaintiffs did not plausibly allege that defendants’ conduct violated law that was clearly established at the time of their actions.

Court Says Wayne State Also Violated State Constitution and 14th Amendment In Denying Recognition To Christian Group

In Intervarsity Christian Fellowship/USA v. Board of Governors of Wayne State University, (ED MI, June 1, 2021), a Michigan federal district court denied defendants' motion for reconsideration of the breadth of an injunction the court issued in April which prohibits Defendants from revoking the recognized student organization status of IVCF. (See prior posting.) Wayne State had claimed that IVCF violated the school's non-discrimination policy by insisting that its leaders agree with IVCF's  “Doctrine and Purpose Statements,” “exemplify Christ-like character, conduct and leadership,” and describe their Christian beliefs. The court's April decision found violations of the 1st Amendment. The current decision concludes that the school also violated the free speech provision of the Michigan Constitution and the equal protection clause of the 14th Amendment.

Florida State Settles With Catholic Student Who Was Removed As Student Senate Head

As previously reported, last October a student court at the University of Florida concluded that the University's Student Senate violated the 1st Amendment when it removed Jack Denton, a Catholic student, from the Senate presidency. Student Senate took the action because Denton criticized Black Lives Matter, the ACLU and Reclaim the Block, saying they take views opposed to Catholic teachings. Now, the University has entered a settlement agreement (full text) with Denton under which the University has agreed to pay Denton $10,000 in damages and $1050 in back pay that he would have earned if he had remained Senate president. It will also pay Denton's attorney fees of $83,950. ADF, which represented Denton, issued a press release announcing the settlement.

Georgia Anti-BDS Law Held Unconstitutional

 In Martin v. Wrigley, (ND GA, May 21, 2021), a Georgia federal district court held that Georgia's anti-Israel boycott law violates contractors' free speech rights and is unconstitutionally vague. The law requires that all state contracts contain a certification that the contractor is not engaged engaged in a boycott of Israel. It was challenged by a pro-Palestinian journalist who had been invited to speak at a conference at a state university. The court said in part:

Because the burden on speech imposed by O.C.G.A. § 50-5-85 is content based, it is subject to strict scrutiny....  Even assuming that Georgia's interest in furthering foreign policy goals regarding relations with Israel is a substantial state interest, Defendants fail to explain how Martin's advocacy of a boycott of Israel as any bearing on Georgia's ability to advance foreign policy goals with Israel. The law also is not narrowly tailored to achieve the state's purported interest....

The requirement contained in O.C.G.A. § 50-5-85 that parties seeking to contract with the state of Georgia sign a certification that they are not engaged in a boycott of Israel also is unconstitutional compelled speech.

CAIR issued a press release announcing the decision.

Supreme Court Hears Oral Arguments Today In Challenge To California's Required Disclosure of Donors To Non-Profits

The U.S. Supreme Court this morning will hear consolidated oral arguments in Thomas More Law Center v. Rodriquez (SCOTUSblog case page) and Americans for Prosperity Foundation v. Rodriquez (SCOTUSblog case page). At issue is a California administrative rule requiring non-profit organizations that wish to solicit tax deductible contributions in the state to file an annual report that includes an unredacted IRS Form 990 Schedule B. That Schedule contains the names and contributions of significant donors. Petitioners argue that disclosure subjects donors to dangers of hate mail and retaliation.  Thomas More Law Center describes its mission, in part, as preserving America’s Judeo-Christian heritage and defending the religious freedom of Christians. This post will be updated with a link to the transcript of the oral arguments when it becomes available later today.

Here are links to the audio and transcript of the full arguments.

Cutoff of Pastor's City Council Invocation Did Not Violate 1st Amendment

In Gundy v. City of Jacksonville, Florida, 2021 U.S. Dist. LEXIS 78850 (MD FL, March 22, 2021)-- decided last month but just available on Lexis-- a Florida federal district court dismissed a suit by a pastor who contended that City Council president Aaron Bowman improperly shut off plaintiff's microphone in the middle of the invocation that he was offering. Finding that plaintiff's 1st Amendment rights were not violated, the court said in part:

First, the Court finds Mr. Bowman's actions were not viewpoint discrimination. Mr. Bowman's comment when interrupting Plaintiff and the subsequent removal of Plaintiff's amplification were for the stated purpose of preserving the invocation for its intended purpose. That purpose, according to the City, was to maintain "a tradition of solemnizing its proceedings . . . for the benefit and blessing of the Council." ...

During his invocation, Plaintiff's remarks were at times objectively disparaging of the City Council and the incumbent administration.... While the remarks might have been entirely appropriate if delivered in a more public forum or even Plaintiff's pulpit, they were subject to the reasonable and viewpoint-neutral limitations set by the City for the invocation period — a nonpublic forum.

Plaintiff has filed an appeal. Florida Politics has additional background on the case.

British Court Says Removal of Franklin Graham Bus Ads Violated Religion and Speech Rights

In Lancaster Festival of Hope With Franklin Graham v. Blackpool Borough Council, (Manchester Cty. Ct., April 1, 2021), a British trial court held that the Equality Act 2010 and the European Convention on Human Rights were violated when banner ads for the Lancaster Festival of Hope were removed from public buses. According to the court:

Upon the Defendants receiving complaints from members of the public about the advertisements, the advertisements were removed from the buses. The complaints related to Franklin Graham and his association with the Festival, and predominantly referred to his views on homosexuality and same-sex marriage as being offensive.

In finding a violation of the Equality Act, the court said in part:

The complaints arose from the objections of members of the public to the religious beliefs. The removal came about because of those complaints. I find it also came about because the Defendants allied themselves on the issue of the religious beliefs with the complainants, and against the Claimant and others holding them. If there were any doubt about that it is made explicit by the content of the press statement issued on behalf of the Second Defendant when the advertisements were removed....

Finding a violation of the European Convention, and thus of the Human Rights Act 1998, the court said in part:

Yes, the Claimant was still able to advertise its event and yes, it was still a success. But “it turned out all right in the end” cannot be an answer to the question of whether the interference with a fundamental right to freedom of expression can be justified. The Defendants had a wholesale disregard for the right to freedom of expression possessed by the Claimant. It gave a preference to the rights and opinions of one part of the community without having any regard for the rights of the Claimant or those who shared its religious beliefs. It made no effort to consider whether any less intrusive interference than removing the advertisements altogether would meet its legitimate aim.

Christianity Daily reports on the decision.

Court Upholds NY Law Barring Discrimination Against Employees Because Of Reproductive Health Decisions

In Slattery v. Cuomo, (ND NY, March 31, 2021), a New York federal district court dismissed free exercise, free speech, freedom of association and vagueness challenges to a New York Labor Law §203-e  which prohibits employers from discriminating or taking retaliatory action against an employee because of the person's reproductive health decision making. The law was challenged by a pro-life crisis pregnancy center which required its employees to agree with, adhere to and convey the Catholic view on abortion and sexual relations outside of marriage. The court concluded that the law does not target the Catholic religion in violation of the free exercise clause. Rejecting plaintiffs' free speech challenge, the court said in part:

Section 203-e does not serve to limit any of Plaintiffs’ advocacy against abortion, promotion of certain religious views, and public arguments for particular versions of sexual morality. The statute does not prevent the Plaintiffs, who provide medical information to pregnant women, from telling those women that they should not get abortions, urging them not to use contraception, or telling them about Plaintiffs’ religious beliefs. The statute simply prohibits employers from taking employment action based on the reproductive health decisions of an employee or potential employee. Hiring, firing, or refusing to hire an employee is conduct, not speech, and the law does not implicate Plaintiffs’ First-Amendment rights in that.

Minister Sues To Hold Good Friday Vigil On U.S. Capitol Grounds

On Tuesday, a complaint was filed in D.C. federal district court by a Presbyterian minister who wants to host a prayer vigil on theWestern Terrace of the U.S. Capitol for Good Friday, as he did in 2020.  He was refused a permit because the Capitol grounds have been fenced off since the January 6 attack on the Capitol.  Plaintiff alleges that the denial of a permit violates his free speech, freedom of assembly, free exercise and other rights.  The complaint (full text) in Mahoney v. Pelosi, (D DC, filed 3/30/2021), alleges in part:

In closing the sidewalks and public areas around the Capitol, including the Lower Western Terrace Plaintiff seeks to utilize, Defendants have effectively created a no-speech zone around the nations Capitol. Defendants prevent any First Amendment activities on/in these areas, even though no specific threat to the Capitol has been identified in justification....

Defendants’ restrictions have specifically and explicitly targeted Plaintiff’s religious and “faith based” service and are thus not neutral on their face. Defendants have prohibited Plaintiff’s religious gathering while exempting a laundry list of other activities that occur at the Capitol, including media events, non-religious public gatherings, and various political and other events.

Fox News reports on the lawsuit. [Thanks to Scott Mange for the lead.]

Anti-Abortion Protesters Lose Challenge To D.C.'s Defacement Ordinance

In Frederick Douglass Foundation, Inc. v. District of Columbia,  (DDC, March 26, 2021), the federal district court for the District of Columbia refused to enjoin enforcement of D.C.'s Defacement Ordinance against two groups that organized an anti-abortion demonstration. Protesters attempted to paint or chalk the streets with their slogan "Black Pre-Born Lives Matter." The court rejected plaintiffs' free speech, equal protection, RFRA and free exercise claims. Plaintiffs claim that the Ordinance is enforced in a viewpoint discriminatory manner in that "Black Lives Matter" and "Defund the Police" protesters were not prosecuted. The court said in part, however:

It seems far more plausible, rather, that law enforcement opted against enforcing the Ordinance [against Black Lives Matter protesters] in light of the foreseeable risks of intervention in the moment — e.g., inflaming what may well have already been a tense, fervent, and chaotic protest scene.

6th Circuit: Prof Has 1st Amendment Right To Refuse To Call Transgender Student By Preferred Pronoun

In Meriwether v. Hartop, (6th Cir., March 26, 2021), the U.S. 6th Circuit Court of Appeals held that Shawnee State University violated the free speech and free exercise rights of a philosophy professor when the school insisted that the Professor address a transgender student by her preferred gender pronoun. The professor objected because of his Christian religious beliefs that God created human beings as either male or female at the time of conception and this cannot be changed. Upholding plaintiff's free speech rights, the court said in part:

Never before have titles and pronouns been scrutinized as closely as they are today for their power to validate—or invalidate—someone’s perceived sex or gender identity. Meriwether took a side in that debate. Through his continued refusal to address Doe as a woman, he advanced a viewpoint on gender identity. …  In short, when Meriwether waded into the pronoun debate, he waded into a matter of public concern….

We begin with “the robust tradition of academic freedom in our nation’s post-secondary schools.” … That tradition alone offers a strong reason to protect Professor Meriwether’s speech. After all, academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

The court also reversed the trial court's dismissal of Prof. Meriwether's free exercise claim:

Meriwether has plausibly alleged that Shawnee State’s application of its gender-identity policy was not neutral for at least two reasons. First, officials at Shawnee State exhibited hostility to his religious beliefs. And second, irregularities in the university’s adjudication and investigation processes permit a plausible inference of non-neutrality.

Inside Higher Ed reports on the decision.

Anti-Mask Protesters Arrested At Religious Protest Assembly Sue

As reported by KREM News, three individuals who were arrested in September 2020 by Moscow, Idaho police for not wearing masks or social distancing at a protest have sued in an Idaho federal district court.  The complaint (full text) in Rench v. City of Moscow, (D ID, filed 3/24/2021) says that the arrests took place at a religious assembly organized by Christ Church "to sing praise to their God in a 'Psalm Sing' in front of the Moscow City Hall to protest the mask mandate in the Amended Public Health Emergency Order...." Plaintiffs contend that the arrests violated their free speech and free exercise rights, and say that the Public Health Order by its terms excluded constitutionally protected speech, assembly and religious activity.

Removing Roadside Cross Did Not Violate Father's 1st Amendment Rights

In Kelly v. Montana Department of Transportation, (D MT, March 23, 2021), a Montana federal district court adopted a magistrate's recommendations, 2021 U.S. Dist. LEXIS 55046 (D MT, March 9, 2021). The magistrate recommended dismissing 1st Amendment objections to the removal of a "spiritual cross" that plaintiff had erected along side of a highway in memory of his stepson.  Rejecting free speech claims, the magistrate held that "a spiritual cross erected on public land adjacent to a highway constitutes government speech." Rejecting free exercise claims, the magistrate said in part:

Kelly does not allege that the Defendants prohibited him from freely exercising his religious beliefs though private speech. Kelly alleges that the Defendants removed a spiritual cross that he had erected on public land.... [T]he spiritual cross constituted government speech. Kelly has therefore failed to state a cognizable claim under the First Amendment's Free Exercise Clause.