Negligence Claims Against Anti-Gay Church and Pastor Should Not Be Dismissed Under Anti-SLAPP Law

Fritz v. Jimenez, (CA App., Aug. 18, 2020), is a suit brought by individuals who staged protests against Verity Baptist Church and its pastor Roger Jimenez after Jimenez delivered and posted sermons praising the killing of nearly 50 people in a Florida gay night club. The protesters claim that they were subjected to physical violence, death threats and intimidation by church employees. Defendants asked the trial court to dismiss various claims under California's anti-SLAPP statute which is designed to quickly get rid of suits that are brought strategically to chill free speech. The trial court, on this theory, dismissed plaintiffs' claim of negligent supervision. The Court of Appeals reversed saying that the claim did not arise from defendants' exercise of free speech. The court said in part: 

The sermons of Jimenez provide for a clearer understanding of the situation in which the conduct by VBC and Jimenez’s agents and employees happened. However, the statements of Jimenez are not the focus of the negligence claim. Plaintiffs’ negligence claims are colorable even if none of Jimenez’s statements were contained on the complaint because the complaint would still set forth such regular occurrences of violence and intimidation that a claim for negligent supervision would be stated. Even so, plaintiffs are entitled to rely on Jimenez’s sermons and statements to help establish the foreseeability of physical violence and intimidation against them as a risk inherent in the way VBC and Jimenez conducted the enterprise....

The court also affirmed the trial court's refusal to dismiss plaintiffs' premises liability claim. [Thanks to Scott Mange for the lead.]

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. 

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.

Certiorari Granted In College Student Religious Speech Case

Yesterday the U.S. Supreme Court granted review in Uzuegbunam v. Preczwski, (Docket No. 19-968, certiorari granted 7/9/2020). (Order List). The case grows out of a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature on campus. Subsequently, the school changed its policies.  The U.S. 11th Circuit Court of Appeals held that the change mooted plaintiff's claim for nominal damages. (Full text of 11th Circuit opinion.) Appellants challenge that conclusion. ADF issued a press release on the grant of review.

Justice Kavanaugh Refuses To Enjoin Illinois District Court's Upholding of COVID-19 Limits On Political Gatherings

As previously reported, on July 2 an Illinois federal district court rejected arguments by state and local Republican organizations that the governor's COVID Order placing more restrictions on political party gatherings than religious gatherings violates the First and Fourteenth Amendments. On July 3, the U.S. 7th Circuit Court of Appeals denied plaintiffs' application for a injunction pending appeal. Plaintiffs immediately filed an Emergency Application for an Injunction (full text) with the U.S. Supreme Court, through a filing with Justice Kavanaugh who is Circuit Justice for the 7th Circuit.  The petition requested relief by 5:00 pm on July 4. On July 4, Justice Kavanaugh denied the request. Washington Examiner reports on the Supreme Court's action.

Illinois Can Favor Religious Gatherings Over Political Ones

In Illinois Republican Party v. Pritzker, (ND IL, July 2, 2020) an Illinois federal district court rejected arguments by state and local Republican organizations that the governor's COVID Order placing more restrictions on political party gatherings than religious gatherings violates the First and Fourteenth Amendments. The court said in part:

Because the exemption is a content-based restriction, this provision can only stand if it survives strict scrutiny....

Plaintiffs contend that the Governor cannot satisfy the least restrictive means test because a political party caucus is no more likely to spread COVID-19 than a church service.... However, the Constitution does not accord a political party the same express protections as it provides to religion.... Additionally, the Order’s limited exemptions reinforce that it is narrowly tailored. The Order only exempts two other functions from the gathering limit: emergency and governmental functions. These narrow exemptions demonstrate that the Order eliminates the increased risk of transmission of COVID-19 when people gather while only exempting necessary functions to protect health, safety, and welfare and free exercise of religion. Therefore, the Governor has carried his burden at this stage in demonstrating that the Order is narrowly tailored to further a compelling interest, and the Order survives strict scrutiny.

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.

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.

Court Upholds Most of NY's Statute Barring Employer Reproductive Health Discrimination; Enjoins Notice Provision

In CompassCare v. Cuomo, (ND NY, June 5, 2020), a church and two pro-life organizations challenged the constitutionality of N.Y Labor Law § 203-e which prohibits employers from discriminating or taking retaliatory action against an employee because of the employee's reproductive decision making or use of any drug, device or medical service. It also requires employee handbooks to give notice to employees of their rights under the statute. According to the court:

Plaintiffs’ complaint, then, is that Labor Law § 203-e will alter their appearance and thus undermine their message. People will know that, even though they proclaim a public commitment to a particular message about religion, sexuality, abortion, and contraception, employees may engage in conduct contrary to their professions of faith....

The court, in a 67-page opinion, rejected plaintiffs' free speech and association claims, saying in part:

The limitations here are not on the speech for which the Plaintiffs contend they associate, but instead threaten to create a situation where hearers might perceive that not all employees ... of the Plaintiffs practiced what they preached. The danger that others be able to call the Plaintiffs hypocrites is not a significant limitation on Plaintiffs’ speech or right to associate. 

The court also rejected plaintiffs' free exercise claims, saying in part:

In the end, the Court cannot find that the evidence presented by the Plaintiffs establishes that the legislature’s purpose was “to challenge the plaintiffs’ religious beliefs” and instead finds that “there was a neutral, secular purpose” for Section 203-e: protecting New Yorkers’ right to make their own decisions about reproduction, including whether to have a child and whether to use birth control....

The court, however, did find that the notice provision amounts to unconstitutional compelled speech and enjoined enforcement of this portion of the law, saying in part:

The notice directed by the statute is language that the Plaintiffs would otherwise not use, and they contend that the prohibitions on discrimination because of “reproductive decision making” undermines their message that the only choices that persons should make on such matters are to carry a child to term, not use birth control, and conduct their sexual lives according to the standards Plaintiffs claim the Bible sets out. While the language in Section 203-e’s notice section does not mention abortion by name, does not suggest to anyone that abortion providers are available, and does not direct anyone to use birth control, the Court finds that the statute compels Defendants to use language they otherwise would not. The notice provision, therefore, is subject to strict scrutiny. No issue of professional speech applies here, which could raise an issue concerning some other level of scrutiny.

Settlement In Suit Against Georgia City By Anti-Gay Preacher

In Georgia, the Athens-Clarke County Commission has agreed to pay $25,000 in settlement of a lawsuit brought by an anti-LGBT street preacher who was escorted out of the 2019 Athens Pride Festival by police officers. City Dope reported  yesterday on the settlement.  Preacher Adam Bishop was evicted from the festival when he shouted anti-gay rhetoric through a megaphone. The settlement of  Bishop's free exercise and free speech claims also includes a commitment to train police officers on how to treat expressive activity.

Suit Against Community College Challenges Campus Speech Restrictions

Suit was filed in an Oregon federal district court last week by a pro-life group and two Christian students challenging a community college's policies that require advance approval for speech activities on campus as well as limiting speeches and leafleting to certain speech zones.The complaint (full text) in Chemeketa Students for Life v. Members of the Chemketa Board of Education, (D OR, filed 5/5/2020) challenges the school's policies on free speech and vagueness grounds. ADF issued a press release announcing the filing of the lawsuit.

Maine Ban On Religious Gatherings Over 10 Persons Is Upheld

In Calvary Chapel of Bangor v. Mills, (D ME, May 9, 2020), a Maine federal district court refused to issue a temporary restraining order against Maine Governor Janet Mills' COVID-19 order which prohibits religious gatherings of more than ten people. The court rejected plaintiff's free exercise, Establishment Clause and free speech challenges to the Order.

Attorney General Warns Against COVID-19 Orders That Violate Civil Rights

Attorney General William Barr yesterday issued a Memorandum to the Assistant Attorney General for Civil Rights and to all U.S. Attorneys, titled Balancing Public Safety With the Preservation of Civil Rights. The memo calls for U.S. Attorneys to be on the lookout for state and local COVID-19 orders that infringe constitutional rights and civil liberties. The memo reads in part:

... [E]ven in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers. The legal restrictions on state and local authority are not limited to discrimination against religious institutions and religious believers. For example, the Constitution also forbids, in certain circumstances, discrimination against disfavored speech and undue interference with the national economy. If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court.

Liberty Counsel issued a press release announcing the Memorandum.

Suit Challenges Chattanooga's Ban On Drive-In Church Services

Suit was filed on Thursday in a Tennessee federal district court challenging Chattanooga, Tennessee's COVID-19 ban on drive-in church services.  The complaint (full text) in Metropolitan Tabernacle Church v. City of Chattanooga, (ED TN, filed 4/16/2020), alleges in part:

[A]ccording to the City, you can buy a hamburger and sit in your car at a drive-in restaurant, or sit in the parking lot of a retail establishment with hundreds of other vehicles with your windows rolled down, but you can’t sit in your car at a drive-in church service with your windows rolled up....

Plaintiffs sincerely believe that the Bible teaches the necessity of gathering together for corporate prayer and worship and that such assembly is necessary and good for the Church and its members’ spiritual growth....

The City’s drive-in church ban targets, discriminates against, and shows hostility towards churches, including Plaintiffs.

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

Suit Challenges City's Ban On Drive-In Church Services

On Friday, a church in Greenville, Mississippi filed suit in federal district court challenging the city's COVID-19 closure order insofar as it bans drive-in church services held on church property where the service is broadcast over low-power FM radio to individuals sitting in their cars. The complaint (full text) in Temple Baptist Church v. City of Greenville, (ND MS, filed 4/10/2020) contends that the order violates plaintiffs' rights of free exercise, free speech and freedom of assembly, their due process rights, and conflicts with the Mississippi governor's statewide order.  ADF issued a press release announcing the filing of the lawsuit.

Suit Challenges Student Government's Refusal To Fund Speech By Religious Figure

Suit was filed last week in a Georgia federal district court against officials at Georgia Tech after a Students for Life chapter was denied student activity fee funds to sponsor a talk by Dr. Martin Luther King's niece, Alveda King.  Student government denied funding because Ms. King has been involved in religious ministries and the religious aspects of her life could not be separated from the event which was to focus on civil rights and abortion. The complaint (full text) in Students for Life at Georgia Tech v. Regents of the University System of Georgia, (ND GA, filed 4/1/2020) alleges free speech violations (compelled speech and viewpoint discrimination), as well as due process and equal protection violations.  ADF issued a press release announcing the filing of the lawsuit.

Supreme Court Denies Review In Bus Ad Case

The U.S. Supreme Court today denied certiorari in Archdiocese of Washington v. Washington Metropolitan Transit Authority, (Docket No. 18-1455, cert. denied 4/6/2020).  (Order List [scroll to end]).  In the case, the D.C. Circuit Court of Appeals rejected challenges to the WMATA's guidelines which preclude the sale of advertising space on public buses for issue-oriented advertising, including political, religious and advocacy ads.  The ban includes ads "that promote or oppose any religion, religious practice or belief."  The Catholic Archdiocese of Washington wished to purchase space on the exterior of buses for its Christmas season "Find the Perfect Gift" ad. (See prior posting.) The Circuit denied en banc review, over a dissents in an opinion written by Judge Griffith. (See prior posting.)

Justice Kavanaugh was part of the panel that heard the original arguments in the case in the D.C. Circuit, so he recused himself from considering the petition for review.  While the Supreme Court denied review, Justice Gorsuch joined by Justice Thomas filed a statement saying in part:

Because the full Court is unable to hear this case, it makes a poor candidate for our review. But for that complication, however, our intervention and a reversal would be warranted for reasons admirably explained by Judge Griffith in his dissent below and by Judge Hardiman in an opinion for the Third Circuit....

... [T]he government may minimize religious speech incidentally by reasonably limiting a forum like bus advertisement space to subjects where religious views are unlikely or rare. But once the government allows a subject to be discussed, it cannot silence religious views on that topic.... So the government may designate a forum for art or music, but it cannot then forbid discussion of Michelangelo’s David or Handel’s Messiah. And once the government declares Christmas open for commentary, it can hardly turn around and mute religious speech on a subject that so naturally invites it.

Suits In NY and Texas Say Stay-At-Home Orders Infringe Religious Rights

New York Post reports that a lawsuit was filed last Friday in a New York federal district court against the state of New York and Gov. Andrew Cuomo challenging the constitutionality of Cuomo's stay-at-home order imposed to limit the spread of COVID-19. Among other things, plaintiff, a Brooklyn lawyer, alleges that the ban violates his rights to free speech and to observe his Jewish faith.

A mandamus action filed in the Texas Supreme Court similarly challenges a Harris County, Texas stay-at-home order. Houston Chronicle reports that the challenge filed by three pastors and a conservative Republican activist claims that the order violates the 1st Amendment by ordering the closure of churches and also violates the Constitution by failing to classify gun shops as essential businesses.

UPDATE: Here is the full text of the complaint in the Texas case, In re Hotze, (TX Sup. Ct., filed 3/30/2020).

UPDATE 2: Front Porch News reports on an April 21 updated version of Texas' “Guidance to Houses of Worship During the COVID-19 Crisis.”