Church Awarded $1.35M For Loss Stemming From Overbroad Zoning Restriction

In Riverside Church v. City of  St.Michael, (D MN, May 22, 2017), a Minnesota federal district court awarded damages of $1,354,595 to a church which was prevented by city zoning ordinances from acquiring a vacant movie theater building and use it for worship services.  The court concluded that the church's free speech rights were infringed because the zoning ordinance, while addressing significant government interests relating to traffic control, was not narrowly tailored.  Ultimately the city amended its zoning ordinance to allow purchase of the theater building, but by then its purchase price had increased by $1.29 million, a price which the church could not afford to pay.  The court refused to award the church damages against the city for defamation. (See prior related posting.)

Trump Issues Day of Prayer Proclamation and Religious Liberty Executive Order

Today President Trump issued a Proclamation (full text) designating today as National Day of Prayer. It reads in part:

We are also reminded and reaffirm that all human beings have the right, not only to pray and worship according to their consciences, but to practice their faith in their homes, schools, charities, and businesses    in private and in the public square    free from government coercion, discrimination, or persecution.  Religion is not merely an intellectual exercise, but also a practical one that demands action in the world.  Even the many prisoners around the world who are persecuted for their faith can pray privately in their cells.  But our Constitution demands more:  the freedom to practice one's faith publicly.

The President also marked the day by issuing an "Executive Order Promoting Free Speech and Religious Liberty" (full text) setting out four policy initiatives:

Section 1.... It shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom.....

Sec. 2....  All executive departments and agencies ... shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech. In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury....

Sec. 3.... The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code.

Sec. 4....  In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.

Arkansas Disorderly Conduct Law Upheld Against Abortion Protesters

In Duhe v. City of Little Rock, Arkansas, (ED AR, April 27, 2017), an Arkansas federal district court upheld the constitutionality of Arkansas' disorderly conduct statute in a suit by two participants in a pro-life event known as Operation Save America. One of the participants was president of a Christian organization, Spirit One. The participants interfered with traffic flow in a clinic parking lot, while using a microphone and loudspeaker to present their views.  Their activity disturbed businesses in the area.  The court held that the disorderly conduct statute under which the two men were charged is neither vague nor overbroad, and is a permissible content-neutral time, place and manner regulation.

8th Circuit Upholds Solicitation Ban At Revenue Offices

In Brown v. Arkansas Department of Administration, (8th Cir., Feb. 3, 2017), the U.S. 8th Circuit Court of Appeals affirmed the dismissal of a suit brought by a Rastafarian minister challenging a no-solicitation policy at certain state Revenue Offices.  The ban prevented the minister from continuing to setup a table on the lawn of a revenue office to seek signatures for a ballot initiative on the Arkansas Medical Cannabis Act. (See prior posting.)  The appeals court held that the private property immediately surrounding the revenue office was a nonpublic forum, that the ban was reasonably related to the State’s interest in running revenue offices, and was viewpoint neutral.

Community Room Policy Excluding Worship Held Unconstitutional

In His Healing Hands Church v. Lansing Housing Commission, (WD MI, Feb. 8, 2017), a Michigan federal district court held unconstitutional a Housing Commission policy that allows outside groups to use community rooms in housing projects, except for religious purposes, worship, or activities.  The court concluded that "the Housing Commission’s policy constitutes impermissible viewpoint discrimination."

UPDATE: An ADF press release points out that this decision makes permanent a preliminary injunction issued in the case last year.

Pro-Life Student Group Sues Over Denial of Recognition

Yesterday a pro-life student group filed a federal lawsuit against officials of Queens College in New York after the organization was denied registered student organization status.  The complaint (full text) in Queens College Students For Life v. Members of the City University of New York Board of Trustees, (ED NY, filed 1/25/2017), contends that the unbridled discretion given to the Campus Affairs Committee to deny registered student organization status (and its associated benefits, including funding from student activity fees) allows discrimination against organizations on the basis of viewpoint. ADF issued a press release announcing the filing of the lawsuit.

Suit Challenges College's Speech Zones and Speech Code

A student at Georgia Gwinnett College has filed suit in federal district court challenging the school's Speech Zone and Speech Code Policies. The 76-page complaint (full text) in Uzuegbunam v. Preczewski, (ND GA, filed 12/19/2016), says that plaintiff was stopped from distributing religious literature on campus when he was outside two small designated speech zones, and that when he tried to share his religious views in one of the designated speech zones he was told that his speech constituted disorderly conduct because it had generated complaints. Plaintiff asks for a declaratory judgment and injunction finding that the speech policies violate his free speech, free exercise, equal protection and due process rights. The Daily Signal reports on the lawsuit.

Amicus Says Trademark Case Impacts Religious Speech

Next month, the U.S. Supreme Court will hear oral arguments in Lee v. Tam (SCOTUSblog case page).  The case involves a free speech challenge to the Lanham Act which allows the government to deny trademark registration to a mark "which may disparage * * * persons, living or dead, institutions, beliefs,
or national symbols, or bring them into contempt, or disrepute." On Monday the Becket Fund filed an amicus brief in the case focusing on the impact of the disparagement clause on religious speech. The brief argued in part:

Disagreements about deeply important issues such as religion can often be experienced as disparaging.... [I]t would be wrong for the government to punish speech simply because it wants to protect some religious “institutions” and “beliefs” from criticism.

In fact, to its credit, the United States has for many decades led the fight to convince other countries and international bodies to allow disparaging speech, and to resist using the law to punish those who disparage religion or commit blasphemy.

Suit Challenges Kentucky's Denial of "IM GOD" License Plate

The ACLU and Freedom From Religion Foundation yesterday announced the filing of a lawsuit in Kentucky federal district court challenging the state's refusal to approve an atheist's request for a personalized license plate carrying the letters "IM GOD".  The state said the proposed plate is "offensive to good taste and decency." The complaint (full text) in Hart v. Thomas, (ED KY, filed 11/22/2016), asserts both facial and as-applied challenges contending that the denial of the license-plate application amounts to content and viewpoint-based discrimination. The suit also challenges the Kentucky statute that allows denial of personalized plates that promote political or religious beliefs. WDRB reports on the case.

Suit Challenges Utah's "Anti-Gay School Laws"

Suit was filed in Utah federal district court last week challenging Utah's so-called "Anti-Gay School Laws." As summarized in a press release from the National Center for Lesbian Rights:

The lawsuit challenges several Utah laws and regulations that prevent positive portrayals of gay, lesbian, and bisexual people in curricula, classroom discussions, and student clubs. The lawsuit claims that these discriminatory restrictions create a negative environment for LGBT students, perpetuate discrimination and bullying, and contribute to the high rates of anti-LGBT harassment in Utah schools. For instance, one plaintiff experienced severe physical and verbal harassment from other students in his kindergarten class based on his gender non-conformity. When his parents complained to school leaders about the harassment, they were told that the school district could not protect their son because of these discriminatory school laws.

The complaint (full text) in Equality Utah v. Utah State Board of Education,(D UT, filed 10/21/2016), contends that the statutes and regulations being challenged violate the 1st and 14th Amendments, as well as Title IX and the Equal Access Act.

Suit Challenges University's Anti-Harassment Policy

A suit was filed this week in an Iowa federal district court challenging the constitutionality of Iowa State University's anti-harassment policy and the required online anti-harassment training program for all students and staff.  The Student Code of Conduct defines discriminatory harassment as:

unwelcome behavior directed at an individual or group of individuals based on race, ethnicity, pregnancy, color, religion, national origin, physical or mental disability, age, marital status, sexual orientation, gender identity, genetic information, status as a U.S. veteran (disabled, Vietnam, or other), or other protected class when the behavior has the purpose or effect of substantially interfering with the student's education or employment by creating an intimidating, hostile, or demeaning environment.

Harassment may include some instances of First Amendment protected speech.  The complaint (full text) in Dunn v. Leath, (SD IA, filed 10/17/2016), alleges that the policy violates students' free speech, due process, equal protection and free exercise rights. The complaint reads in part:

131. Plaintiff seeks to exercise his sincerely held religious beliefs by discussing and advocating for his Christian faith and his Christian viewpoint on marriage, sexuality, abortion, and other issues in controversy.

132. Defendants’ promulgation and enforcement of each of the policies complained of herein substantially burden Dunn’s free exercise of religion by preventing and chilling him from sharing his religious views.

... 134. This policy is neither neutral nor generally applicable because it punishes speech critical of another religious belief or deemed offensive to listeners because of their religious beliefs while not sanctioning other speech.

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

Court Denies Preliminary Injunction In Church's Challenge To State Transgender Nondiscrimination Laws

In Fort Des Moines Church of Christ v. Jackson, (SD IA, Oct. 14, 2016), an Iowa federal district court refused to issue a preliminary injunction to bar enforcement against a church of  provisions of the Iowa Civil Rights Act and the Des Moines City Code.  The laws prohibit discrimination on the basis of gender identity in places of public accommodation. Both statutes exempt religious acts of religious institutions.  The church sued after the Iowa Civil Rights Commission issued a guide stating that the anti-discrimination provisions may apply to non-religious activities of a church that are open to the public. The church wants to publicize on its website and in its church bulletin its policy of limiting its rest rooms on the basis of anatomy as identified at birth or by one's original birth certificate.  The policy includes the following rationale:

This policy is consistent with and required by God’s Word, which sets forth the distinctiveness, complementariness and immutability of the male sex and female sex as Jesus Christ himself taught in Matthew 19:4. God’s Word also teaches that physical privacy and personal modesty spring from the physical conditions and unique characteristics of the sexes.

While refusing to dismiss the lawsuit, the court also denied a preliminary injunction because plaintiff is unlikely to succeed on the merits. The court rejected plaintiff's vagueness challenge, and rejected its as-applied free speech challenge because it is unlikely that the laws would ever apply to plaintiff's activities. All of the activities the church indicated it engaged in were religious in nature.  The court rejected plaintiff's free exercise challenge because the anti-discrimination provisions are neutral laws of general applicability. (See prior related posting.)

Disclaimer Requirement Violates Pregnancy Center's Free Speech Rights

In Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, (D MD, Oct. 4, 2016), a Maryland federal district court held that a Baltimore ordinance requiring limited purpose pregnancy centers to post specified disclaimers is unconstitutional as applied to the pregnancy center bringing the lawsuit.  The ordinance requires centers to post signs in their waiting rooms stating that they do not provide or make referrals for abortion or birth control services. The court, applying strict scrutiny, held that this compels the pregnancy center to speak, delivering information that it would not otherwise transmit. The court said in part:

The City identifies two interests to support the Ordinance: (1) to protect the public from deceptive business practices, and (2) to promote public health by “ensuring that individuals who seek reproductive health services have access to truthful information about the services available at Pregnancy Centers.”...

[H]ere, even if there had been bountiful evidence of misleading advertising, there is no evidence that women were coming to the Center under false pretenses and suffering harmful health consequences because of it. Thus, the City has not satisfied the “demanding standard” of showing that the Ordinance actually promotes a compelling interest in solving a specific problem.

ADF issued a press release announcing the decision and linking to other pleadings and court decisions in the long-running litigation.

Fire Department Can Exclude Employee's Religious Messages From E-Mail System

In Sprague v. Spokane Valley Fire Department, (WA App., Sept. 21, 2016), the Washington state Court of Appeals, in a 2-1 decision, upheld a fire department's termination of a firefighter who insisted on using the department's internal e-mail system to distribute religious messages.  Jonathan Sprague, founder of the Spokane Christian Firefighters Fellowship, was found to have violated departmental policies limiting use of the e-mail system to official communications. He sent out messages, including scriptural passages, on meetings of his group. Judge Korsmo's majority opinion concluded:

It should go without saying that a fire department's business is firefighting, not discussion of religion. Pointing out that Mr. Sprague violated the prohibition against public use in that specific manner did not thereby convert the policy to one of opposition to religious speech any more than challenging use of e-mails to promote chess tournaments or a political candidate could be interpreted as anti-chess or anti-political speech. The policy was anti-private use, not anti-religion.

Judge Lawrence-Berrey filed a concurring opinion.  Chief Judge Fearing dissented in an opinion that begins with a quotation from the Biblical Book of Matthew. He said in part:

The majority holds that the fire department held the prerogative to preclude the use of its e-mail for the voicing of religious messages. I note that a government entity, as a general proposition, enjoys this prerogative. Nevertheless, the Spokane Valley Fire Department opened its email system to employee messages of solving personal problems and societal ills through the grace of God when the fire department delivered employee assistance programs newsletters, through the department e-mail, addressing those same problems and ills. The Spokane Valley Fire Department's discipline of Sprague for addressing a topic from Sprague's spiritual perspective constituted viewpoint discrimination in violation of Sprague's free speech rights. The government may not prefer secular chatter over religious oration.

Winery Says Zoning Restrictions On Outdoor Weddings Violate RLUIPA and Speech Rights

The Ventura County Star reported yesterday on a lawsuit filed in a California federal district court by a southern California winery challenging a Ventura County ordinance that requires conditional use permits for outdoor events, including weddings.  Six months ago the county denied Epona Estate's application for a permit to allow weddings, charitable fundraisers, luncheons and similar events at the winery.  The suit contends that the restriction on outdoor weddings violates the winery's free speech rights as well as its rights under the Religious Land Use and Institutionalized Persons Act.

Church's RLUIPA Claim Dismissed, But Defamation Claim Moves Forward

In Riverside Church v. City of St. Michael, (D MN, Aug. 31, 2016), a Minnesota federal district court dismissed a church's RLUIPA and free exercise claims, but allowed the church to proceed on its free speech and defamation claims. A Christian and Missionary Alliance congregation attempted to purchase a building formerly used as a movie theater but could not obtain city zoning approval.  Eventually the city amended its zoning ordinance to allow religious assemblies, among others, in the relevant zoning district.  The Church however sued over the past zoning denials, and over an allegedly false public statement the city made as to why the Church withdrew from negotiations with the city.  In dismissing the Church's RLUIPA claim, the court concluded that neither the substantial burden nor equal terms provisions of the law were violated.  The court also pointed to a less-often used safe-harbor provision in RLUIPA that allows the city to "avoid the pre-emptive force" of the statute by taking action to eliminate the substantial burden imposed by a policy.  In allowing the Church's free speech claim to proceed, the court concluded that questions remained as to whether the ban on religious assemblies in the relevant zoning district was narrowly enough tailored to the city's traffic safety concerns.

Texas Anti-SLAPP Law Does Not Protect Free Exercise Rights

In Davis v. Mount Gilead Baptist Church, (TX App., Aug. 25, 2016), a Texas state appellate court held that Texas' anti-SLAPP statute-- designed to prevent the use of frivolous suits to chill speech rights-- only applies to suits filed in response to defendant's exercise of free speech, right of petition or right of association.  It does not apply to suits that respond to free exercise of religion.

Suit Challenges Illinois Amendments To Health Care Right of Conscience Act

On Friday, two pro-life pregnancy care centers and a pro-life physician filed suit in Illinois state court challenging SB 1564, the recently enacted Illinois law amending the state's Health Care Right of Conscience Act. (See prior posting.)  The complaint (full text) in Pregnancy Care Center of Rockford v. Rauner, (IL Cir. Ct., filed 8/5/2016) alleges that the new law violates Illinois' Religious Freedom Restoration Act, as well as plaintiffs' religious freedom, free speech and equal protection rights under the Illinois constitution. The complaint describes the provisions that would require plaintiffs to violate their religious and moral beliefs:

S.B. 1564 requires Plaintiffs and other medical facilities and physicians to choose between referring for abortions, transferring a patient to an abortion provider, or provide a patient asking for an abortion with a list of providers they reasonably believe may perform the abortion.

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

Ordinance Barring Charity From Soliciting Funds Is Invalidated

In Homeless Helping Homeless, Inc. v. City of Tampa, Florida, (MD FL, Aug. 5, 2016), a Florida federal district court enjoined the city of Tampa from enforcing an ordinance that bans the solicitation of money in the downtown area and an adjacent historic district.  The order comes in a suit by a charitable organization that offers emergency food and shelter to the homeless.  Relying on the Supreme Court's 2015 decision in Reed v. Town of Gilbert, the court held that challenged law is a content-based regulation that is subject to strict scrutiny.  It said in part:

Section 14-46(b) imposes no penalty if a speaker in a public park in downtown Tampa or on a sidewalk in Ybor City asks a passer-by about a political issue or offers a passer-by a brochure about a church or about a show at a carnival. If a speaker asks a passer-by to sign a petition, Section 14-46(b) imposes no penalty. But, if a speaker asks a passer-by for “donations or payment,” Section 14-46(b) criminally penalizes the speaker.

Another Court Refuses To Enjoin California's Reproductive FACT Act

In Mountain Right to Life v. Harris, (CD CA, July 8, 2016), a California federal district court denied a preliminary injunction against enforcement of California's Reproductive FACT Act. The Act requires medical clinics that offer family planning or pregnancy related services to furnish clients a notice that California has public programs that provide free or low-cost access to family planning, pre-natal care and abortion services. Clinics offering pregnancy-related services that do not have licensed medical personnel on staff must provide notice of that fact. In the case, a faith-based crisis pregnancy center argued that the Act violates its free speech and free exercise rights. The court found that the center did not show a likelihood of success on the merits.  The court concluded that the state has a compelling interest in ensuring that people know whether or not they are receiving care from licensed professionals. The statute's other notice requirement is a constitutionally permissible regulation of professional speech to protect the government's substantial interest in its residents knowing the health care resources that are available. Two other federal district courts have reached similar conclusions. (See prior posting.)