6th Circuit: City Did Not Ban All Mention of Religion At Council Meeting On Mosque Construction

In Youkhanna v. City of Sterling Heights, (6th Cir., Aug. 14, 2019), the U.S. 6th Circuit Court of Appeals rejected challenges to the manner in which the city of Sterling Heights, Michigan conducted a raucous city council meeting at which settlement of a RLUIPA lawsuit was being considered.  At issue was the city's settlement of a zoning dispute under which the American Islamic Community Center was permitted to build a mosque in the city.  City Council placed limits on the scope of comments that citizens could make during the meeting, and eventually cleared the meeting room when the audience became disruptive.

Plaintiffs objected that their 1st Amendment rights were infringed when the mayor told the audience at the meeting:

We do not need any comments about anybody’s religion, that is not the purpose of this meeting tonight and any comments regarding other religions or disagreements with religions will be called out of order.

The court responded:

This was not, as plaintiffs would have, a ban on talking about religion. This is clear from the fact that comments mentioning religion—including comments mentioning Islam specifically—were allowed when they were relevant to zoning issues....

The court also rejected a number of other challenges to the conduct of the meeting, including an Establishment Clause claim.  Detroit News reports that plaintiffs intend to seek en banc review of he decision.

Suit Challenges Virginia Fair Housing Act Provision Barring Religious Language In Ads

Suit was filed in a Virginia state trial court yesterday challenging a provision in the state's Fair Housing Code which provides that advertisements using "words or symbols associated with a particular religion.... shall be prima facie evidence of an illegal preference under this chapter which shall not be overcome by a general disclaimer." The complaint (full text) in Carter v. Virginia Real Estate Board, (VA Cir. Ct., filed 8/14/2019) contends that realtor Hadassah Hubbard Carter's free exercise, free speech and due process rights were infringed when the Virginia Real Estate Board claimed that she had violated the Fair Housing Code by use of a religious phrase in her e-mail signature line, and a Biblical quotation and a recitation of her religious beliefs on her business website. ACLJ issued a press release announcing the filing of the lawsuit.

Pro-Life Group Wins Challenge To University's Student Fee Allocation Process

In Apodaca v. White, (SD CA, Aug. 13, 2019), a California federal district court held that California State University- San Marcos cannot use mandatory student fees from objecting students to fund programs and speakers until the University adopts specific and detailed neutral standards for determining which funding applications will be granted. The suit was filed by a pro-life student group that was seeking funding for a lecture about abortion. ADF issued a press release announcing the decision.

Religious Activist Fined For Burning Library's LGBTQ Children's Books

In Orange City, Iowa yesterday, religious activist Paul Robert Dorr was found guilty of criminal mischief and fined $125 for burning four children's books that he checked out of the public library. As reported by the Des Moines Register, the books had LGBTQ themes. Dorr posted a video to Facebook showing him throwing the books into a burning barrel after he denounced the Orange City library for having the books.

Consulting Firm Challenges City's Ban On Discrimination Based on Political Belief

A suit was filed in a Michigan federal district court this week challenging the constitutionality of the Ann Arbor (MI) non-discrimination ordinance that, among other things, bars discrimination based on political belief. The complaint (full text) in ThinkRight Strategies, LLC v. City of Ann Arbor, (ED MI, filed 7/29/2019), alleges that plaintiffs are political conservatives whose political views are religiously motivated. Their consulting business develops websites and content for speeches, guides canvassing, promotes events and handles media relations. I will not, however, accept requests for service that involve promoting messages or policies contrary to their conservative or religious principles. The suit contends that Ann Arbor's ordinance bars this client selectivity in violation of plaintiffs' free speech rights and is unconstitutionally vague. ADF issued a press release announcing the filing of the lawsuit.

Canadian Court Says West Bank Wines Cannot Be Labeled "Products of Israel"

In Kattenburg v. Attorney General of Canada, (Federal Ct. Canada, July 29, 2019), a judge of Canada's Federal Court held that labeling wine produced by wineries in the West Bank settlements of Shiloh and Psagot as "Products of Israel" is false, misleading and deceptive in violation of § 7(1) of Canada's Consumer Packaging and Labelling Act and § 5(1) of Canada's Food and Drugs Act. The court said in part:

Both parties and both interveners agree that, whatever the legal status of the settlements may be, the fact is that they are not within the territorial boundaries of the State of Israel.

The court added:

[S]ome individuals opposed to the creation of Israeli Settlements in the West Bank express their opposition to the settlements and their support for the Palestinian cause through their purchasing choices, boycotting products produced in the Settlements. In order to be able to express their political views in this manner, however, consumers need to have accurate information as to the origin of the products under consideration. Identifying Settlement Wines incorrectly as “Products of Israel” inhibits the ability of such individuals to express their political views through their purchasing choices, thereby limiting their Charter-protected right to freedom of expression.

The Globe and Mail reports on the decision.

6th Circuit: Street Near Planned Parenthood Clinic Is Traditional Public Forum

In Brindley v. City of Memphis, (6th Cir., July 24, 2019), the U.S. 6th Circuit Court of Appeals held that a street adjacent to a Planned Parenthood clinic is a traditional public forum even though the street was originally privately owned.  The court said it is enough that the street looks and functions like a public street. Also the street was dedicated as a public right of way. Thus the court reversed and remanded a district court's denial of a preliminary injunction to a pro-life activist who wanted access to the street. [Thanks to Tom Rutledge for the lead.]

Suit Challenges Limits On Sharing Religious Message At Gay Pride Events

Suit was filed in a Tennessee federal district court last month challenging the manner in which the Special Events Policy of Johnson City (TN) is interpreted and applied. The complaint (full text) in Waldrop v. City of Johnson City, Tennessee, (ED TN, June 19, 2019) contends that the city's policy unconstitutionally prevents plaintiffs from sharing their Christian message during gay pride parades and events. It alleges:

123. As applied, the Policy unconstitutionally attempts to convert the City’s streets, sidewalks, and parks from traditional public fora into a nonpublic forum during Special Events conducted in the City. 

124. As applied, the Policy unconstitutionally limits Plaintiffs’ freedom of speech by forcing Plaintiffs to move out of a traditional public forum during Special Events....

133. Plaintiffs have a personal belief in the Biblical mandate to spread the Gospel of Jesus Christ, and Plaintiffs engage in activities, for the purpose of spreading the Gospel of Jesus Christ, that are prohibited by the Policy, as interpreted and enforced by Defendants.

WJHL News reports on the lawsuit.

Pastor Sues City Council Over Censorship of His Invocation

A suit was filed in a Florida federal district court this week by a pastor whose invocation at a Jacksonville City Council meeting was cut off by the Council president who thought the invocation was too political.  The complaint (full text) in Gundy v. City of Jacksonville, (MD FL, filed 7/1/2019), alleges that Pastor Reginald Grundy's microphone was cut off 4 minutes into his invocation after he said:

Father, in the name of Jesus, we have a political climate right now that is dividing our community further and further apart because of pride and selfish ambitions. People are being intimidated, threatened, and bullied by an executive branch of our city government while cronyism and nepotism is being exercised in backrooms.

City Council President Aaron Bowman justified his action the next day on Twitter, saying:

I never envisioned a CM (council member) stooping so low to find a pastor that would agree to such a sacrilegious attack politicizing something as sacred as our invocation. It obviously was a last ditch effort to try and revive a failed term and campaign. Fortunately I control the microphone.

Grundy contends that Bowman's action violated his free speech and free exercise rights protected by the U.S. and Florida constitutions. News4JAX reports on the lawsuit.

Christian School Sues Over Exclusion From State Funding Programs

Suit was filed on Monday in a Maryland federal district court by a preschool- 8 Christian school that was excluded from Maryland's scholarship program for low-income students, as well as the state's textbook and technology and its aging schools programs.  The complaint (full text) in Bethel Ministries, Inc. v. Salmon, (D MD, filed 6/24/2019), alleges that the school does not discriminate in admissions on the basis of sexual orientation, but that it was nevertheless disqualified because of its policy on transgender students and on same-sex marriage.  According to the complaint:

50. Faculty, staff, and students are expected to align their conduct with Bethel’s belief that marriage is the union of one man and one woman. 

51. Faculty, staff, and students are expected to align their conduct with Bethel’s belief that biological sex as either male or female is an immutable gift from God, and therefore identify with, dress in accordance with, conduct themselves in keeping with, use the pronouns associated with, and use the facilities provided for, their biological sex....

53. Bethel’s conduct policy prohibits any communication of a sexual nature, such as identifying as the opposite sex, or expressing romantic attraction towards another student.

The school alleges that disqualifying it on this basis violates its 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

Supreme Court Says Ban on Immoral or Scandalous Trademarks Violates 1st Amendment

The U.S. Supreme Court today in Iancu v. Brunetti, (US Sup. Ct., June 24, 2019), held that the Lanham Act’s ban on registration of "immoral" or "scandalous" trademarks violates the First Amendment's free expression provisions.  The court's opinion written by Justice Kagan, and joined by Justices Thomas, Ginsburg, Alito, Gorsuch and Kavanaugh, concluded that the ban amounts to viewpoint discrimination.  In the case, the PTO had refused to register the trademark "FUCT" as the brand name for a line of clothing. Justice Kagan gave examples of the discriminatory manner in which the Act has been applied, including the following:

[T]he PTO refused to register trademarks associating religious references with products (AGNUS DEI for safes and MADONNA for wine) because they would be “offensive to most individuals of the Christian faith” and “shocking to the sense of propriety.” ... But once again, the PTO approved marks—PRAISE THE LORD for a game and JESUS DIED FOR YOU on clothing—whose message suggested religious faith rather than blasphemy or irreverence.

Justice Alito also filed a concurring opinion, stating in part:

Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary.

Three separate opinions dissenting in part were filed-- one by Chief Justice Roberts, one by Justice Breyer and one by Justice Sotomayor joined by Justice Breyer.  They all argued that while the ban on "immoral" trademarks violates the First Amendment, the ban on "scandalous" marks can be given a narrow construction that would save the provision. They contend it should be read to ban only obscene, vulgar or profane marks.  CNN reports on the decision.

Church Sues Over Its Removal As Polling Place

A suit was filed this week in a California federal district court by a Unitarian Church that was removed by election officials as a polling place because the church displayed two Black Lives Matter banners on its property and would not remove them for election day.  The complaint (full text) in Unitarian Universalist Church of Fresno v. Orth, (ED CA, filed 6/10/2019) contends that eliminating the church as a voting location violates its First Amendment free expression rights. Religion News Service reports on the lawsuit.

Cert. Petition Filed In Challenge To Restrictions On Abortion Clinic Sidewalk Counseling

Last week (June 7), a petition for certiorari (full text) was filed in Price v. City of Chicago. In the case, the U.S. 7th Circuit Court of Appeals (full text of decision) upheld Chicago's floating "bubble zone" ban on sidewalk counseling outside abortion clinics. The 7th Circuit relied on a 2000 U.S. Supreme Court decision which has not been overruled. However the 7th Circuit said that the 2000 case has been "unsettled" by later Supreme Court decisions. Thomas More Society issued a press release announcing the filing of the petition seeking Supreme Court review.

Supreme Court Denies Cert In Challenge To Bus Ad Restrictions

The U.S. Supreme Court today denied review in American Freedom Defense Initiative v. Washington Metropolitan Transit Authority, (Docket No. 18-1000, certiorari denied 6/3/2019) (Order List).  In the case, the D.C. Circuit Court of Appeals remanded  a challenge to WMATA's guidelines on advertising that may be displayed on buses and in rail stations.  At issue is the constitutionality of a ban on "advertisements intended to influence members of the public regarding an issue on which there are varying opinions." AFDI wanted to rent space to display ads that decry supposed Sharia adherent Islamists who want to enforce Islamic blasphemy laws in the United States. (See prior posting.)

Cert. Filed In Challenge To School's Curriculum On the Muslim World

A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in Wood v. Arnold, (cert. filed 5/13/2019).  In the case, the U.S. 4th Circuit Court of Appeals rejected a high school student's Establishment Clause and compelled speech challenges to a classroom unit on The Muslim World.  One challenge was to the teacher's Power Point slide which included the statement that most Muslims' faith is stronger than that of the average Christian.  The other challenge was to the requirement on a work sheet for the student to fill in two words of the shahada. (See prior posting). Thomas More Law Center issued a press release announcing the filing of the petition for review.

Court Refuses To Dismiss Suit To Allow Christian Flag Outside Boston City Hall

In Shurtleff v. City of Boston, (D MA, May 3, 2019), a Massachusetts federal district court refused to dismiss a suit brought to enjoin the City from denying permission to a religious organization to display a Christian flag on a flagpole outside City Hall for an event marking Constitution Day and Citizenship Day event. The flag pole flies the city's flag except when it is used by outside groups for a flag to mark a special event. The court held that there are factual issues to be determined on plaintiffs' free speech claims-- whether this involves "government speech," and whether the city has imposed a reasonable, viewpoint neutral regulation in a limited public forum. Also factual issues remain on plaintiffs' Establishment Clause and Equal Protection claims.

Satanic Temple Sues Over Withdrawal Of Permission To Erect Monument

Minneapolis Star Tribune reported yesterday that The Satanic Temple is suing Belle Plaine, Minnesota for its withdrawal of permission to erect a temporary memorial to fallen soldiers in Veterans' Memorial Park. The monument would have been the first Satanic monument on public property in the country. The paper reports on the sequence of events leading to the lawsuit:

... [I]n 2017 [the city approved a different organization's monument:] a steel silhouette known as “Joe” that depicted a soldier kneeling before a cross. Soon, someone complained that “Joe” violated constitutional separation of church and state.

City leaders, fearing a lawsuit, ordered its removal. That triggered weeks of vehement protests in the city.... So the council designated an area in the park as a “limited public forum,” open to temporary memorials to fallen veterans.

The Satanic Temple... applied to install its own monument.... The city granted a permit, and the temple designed a 23-inch black cube inscribed with inverted pentagrams and topped with an upturned helmet, which it planned to install in July 2017.

That plan prompted more protests. So exasperated city officials decided to shut down the limited public forum, ordering the removal of “Joe” and withdrawing permission for the temple’s monument.

[Thanks to Tom Rutledge for the lead.] 

Pro-Life Pregnancy Center Challenges City's Required Disclosures

Suit was filed in a Connecticut federal district court yesterday challenging the constitutionality of a Hartford (CT) Ordinance that requires pregnancy resource centers to make required disclosures on signs, websites and when patients make appointments.  Facilities must make the disclosures if they do not have licensed medical providers on the premises to directly supervise all services.  The complaint (full text) in Caring Families Pregnancy Services, Inc. v. City of Hartford, (D CT. filed 4/18/2019), alleges that the Ordinance is drafted to cover only pro-life pregnancy resource centers, and requires statements that incorrectly imply that the facilities are not qualified to provide the services they offer. The complaint contends:

The practical result of enforcing the Ordinance’s Compelled Speech provision would be not only to inhibit a religious ministry from furthering its mission and message but also to force religious speakers to speak messages with misleading, confusing and negative implications....

Hartford is intent on interfering with certain views about life, pregnancy, and motherhood. Hartford has thus crafted a speaker-based, viewpoint-based law targeting the speech only of speakers espousing certain pro-life moral, religious, and philosophical beliefs.

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

Suit Challenges Zoning Ban On Tarot Reading

A lawsuit was filed yesterday in a Virginia federal district court alleging that the Town of Richlands, Virginia violated plaintiff's rights in refusing to amend its zoning ordinance to allow him to operate a Tarot reading business in the town. The complaint (full text) in Mullins v. Town of Richlands, Virginia, (WD VA, filed 4/4/2019) alleges in part:

4.... Town of Richlands’ officials have used the Town’s licensing and zoning scheme to prohibit Mr. Mullins from reading Tarot as part of his business because of their disapproval of his religious views and practices.

5. Defendants’ effective prohibition on Tarot reading as part of Mr. Mullins’ business constitutes viewpoint discrimination and is an unconstitutional prior restraint.... Defendants further violate Mr. Mullins right to free exercise of religion .... Finally, Defendant Town of Richlands’ licensing and zoning scheme imposes a substantial burden on Mr. Mullins’ religious exercise in violation of RLUIPA and the Virginia Religious Freedom Act.

The complaint describes the hearing on plaintiff's zoning application:

Several local residents admonished the Town Council against amending the zoning ordinance by citing biblical scripture and warning of dire spiritual consequences for the Town if it allowed fortune telling in Richlands.

WSLS News reports on the lawsuit.

6th Circuit Upholds Kentucky's Abortion Informed Consent Law

In EMW Surgical Women's Center, P.S.C. v. Beshear, (6th Cir., April 4, 2019), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected a 1st Amendment free speech challenge to Kentucky's Ultrasound Informed Consent Law. According to the court:

... Kentucky directs a doctor, before performing an abortion, to auscultate (or make audible) the fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient.

The majority concluded:

H.B. 2—The Ultrasound Informed Consent Act—is an informed-consent statute like the statute in Casey because it provides truthful, non-misleading, and relevant information related to an abortion. The statute incidentally burdens speech only as part of Kentucky’s regulation of professional conduct. Therefore, H.B. 2 is not subject to any heightened scrutiny with respect to the doctors’ First Amendment rights, and it does not violate those rights....

Judge Donald dissented, saying in part:

The Commonwealth has coopted physicians’ examining tables, their probing instruments, and their voices in order to espouse a political message, without regard to the health of the patient or the judgment of the physician....  [T]he majority 1) conflates the undue burden and First Amendment standards, while misreading the explicit language of Casey; 2) ignores the national standards of medical care; and 3) disregards the evidence showing that H.B. 2 is not consistent with the medical practice of informed consent.

[Thanks to Tom Rutledge for the lead.]