Court Rejects Challenge To Illinois 10-Person Limit On Religious Services

In Cassell v. Snyders, (ND IL, May 3, 2020), an Illinois federal district court upheld against constitutional attack Illinois Governor J.R. Pritzker's COVID-19 Order which, as amended after the filing of this lawsuit, allows religious worship services of up to ten people if they comply with social distancing precautions. In denying plaintiffs injunctive relief, the court said in part:

The Court is mindful that the religious activities permitted by the April 30 Order are imperfect substitutes for an in-person service where all eighty members of Beloved Church can stand together, side-by-side, to sing, pray, and engage in communal fellowship. Still, given the continuing threat posed by COVID-19, the Order preserves relatively robust avenues for praise, prayer and fellowship and passes constitutional muster. Until testing data signals that it is safe to engage more fully in exercising our spiritual beliefs (whatever they might be), Plaintiffs, as Christians, can take comfort in the promise of Matthew 18:20—“For where two or three come together in my name, there am I with them.” ...

Ultimately, then, the Court concludes that the April Order qualifies as a neutral, generally applicable law. It therefore withstands First Amendment scrutiny so long as “it is supported by a rational basis.” ... Given the importance of slowing the spread of COVID-19 in Illinois, the Order satisfies that level of scrutiny, and Plaintiffs do not seriously argue otherwise. As a result, the Court finds that Plaintiffs’ Free Exercise claim is unlikely to succeed on the merits.

The court also rejected state RFRA and other state law challenges. WTTW News reports on the decision.

7th Circuit Dismisses Satanist's Challenge To Bigamy, Adultery and Fornication Laws

In Mayle v. State of Illinois, (7th Cir., April 23, 2020), the U.S. 7th Circuit Court of Appeals affirmed the lower court's dismissal a Satanist's challenge to Illinois' laws prohibiting bigamy, adultery, and fornication. The court said in part:

The court correctly dismissed Mayle’s challenge to Illinois’s bigamy laws on preclusion grounds, having already rejected a nearly identical challenge in his earlier federal suit.... Here the parties and issues in the bigamy challenge were identical. Likewise, the court correctly dismissed Mayle’s challenges to Illinois’s adultery and fornication laws for lack of standing. Those laws no longer are enforced, so Mayle could not show a reasonable fear of prosecution....

Catholic Order May Build School, Gift Shop and Barn

In Fraternité Notre Dame, Inc. v. County of McHenry, 2020 U.S. Dist. LEXIS 40030 (ND IL, March 2, 2020), an Illinois federal magistrate judge, after holding a public hearing, approved a settlement agreement that allows a conservative order of Catholic nuns to construct a barn-like building for wine making, beer brewing, and canning, and to build a boarding school and a gift shop. In entering the settlement agreement, the parties stipulated that the county had violated the "substantial burden" provision of RLUIPA in denying an amended conditional use permit. The court's public hearing elicited comments both in favor of and opposed to the settlement agreement. The court said in part:

The historical religious bigotry Plaintiff has been subjected to provides a painful backdrop to this case. Plaintiff, its members, and the Property have been subjected to repeated acts of religious bigotry. The Property has been vandalized and desecrated in the most vile ways. Plaintiff's members have been threatened with lynching. And they have been placed in peril. For example, Plaintiff's vehicles have been vandalized in ways that affected the operation of the vehicles, including the loosening of lug nuts and the severing of brake fluid lines. Because of these criminal acts, Plaintiff installed fencing and cameras to protect its members and the Property.

Stunningly, a community member then staked out Plaintiff's property for hours upon hours, taking photographs of the fencing and cameras, all to prove his point that Plaintiff and its members were not "inviting." ...

Lots of people were willing to share their opinions regarding how Plaintiff should use its Property. But none of those opinions considered the legal requirements of RLUIPA.

Chicago Tribune reports on the decision.

Court Says Student Evangelists May Preach In Chicago's Millennium Park

In Swart v. City of Chicago, (ND IL, Feb. 20. 2020), an Illinois federal district court granted a preliminary injunction to four Wheaton College students who were part of an outreach ministry to prevent the city of Chicago from enforcing its regulations limiting speech and handbilling activities in the downtown Millennium Park. The court held that the park is a traditional public forum, that the regulations, as enforced, are not content neutral and unconstitutionally vague.  The court also granted a preliminary injunction to intervenors who engage in other kinds of speech activities in the park. Chicago Sun Times reports on the decision.

Suit Challenges Attempt To Force Sex Offenders Out of Church's Program

The Chicago Tribune reports on a Dec. 30 lawsuit arguing that  the city of Aurora and Kane County (Illinois) are violating the rights of 18 registered sex offenders staying at Wayside Cross Ministries:

The city of Aurora has contended for months that new mapping software showed the men, registered child sex offenders participating in a rehabilitation program at Wayside Cross Ministries, live too close to McCarty Park on Aurora’s near East Side. The city deems it a playground, which would mean the men are in violation of a state law requiring them to live more than 500 feet from schools, playgrounds, daycare centers and other child-focused locations....

The men argue in the lawsuit that Aurora and the Kane County state’s attorney are “misinterpreting and misapplying the residency law." The suit argues the way they are applying the law “to force plaintiffs out of Wayside Cross substantially burdens plaintiffs’ exercise of religion and is not the least restrictive means of furthering a compelling government interest," and amounts to a violation of the Illinois Religious Freedom Restoration Act,,,,

The most recent lawsuit, filed in Kane County circuit court, argues that instead of measuring the required 500-foot-distance from the edge of the park, it should be measured from the edge of an area deemed a playground, such as the park’s fountain or two rocking horses installed in the summer. Both of those features are more than 500 feet from Wayside’s property line, according to the lawsuit.

Catholic School Principal's Retaliatory Discharge Claim Dismissed

In Rehfield v. Diocese of Joliet, (IL App., Dec. 10, 2019), an Illinois state appeals court dismissed a suit by the former principal of a Catholic school who contended that she was the victim of a retaliatory discharge. Her suit raised both common law and Whistleblower Act claims. Plaintiff's firing came after controversy over her contacting the police about a threatening phone call from a parent to the parish priest. In dismissing the suit, the court said in part:

[T]he ecclesiastical abstention doctrine applied to Rehfield’s claims. Further, since this case involved the Diocese’s subjective decision to terminate Rehfield’s employment and did not involve church charters, constitutions and bylaws, deeds, State statutes, or other evidence that would resolve the matter the same as it would a secular dispute, we decline to employ the neutral principals of law approach.... Last, because we find the ecclesiastical abstention doctrine applied to Rehfield’s claims, we need not address ... whether claims for common law retaliatory discharge are available to contractual employees.

Village Sues Church Over Its Homeless Shelter

RNS reports that the affluent Chicago suburb of Village of Orland Park has filed suit against Hope Covenant Church seeking to close down its homeless shelter== the first in the village in over 30 years.  According to RNS:

With temperatures dipping down near the single digits, the seasonal shelter has housed between 15 and 50 people one night every week, including a toddler and local public high school students.

The overnight shelter, the result of a partnership with Illinois’ Beds Plus community organization, is open every Tuesday until April — unless a lawsuit by The Village of Orland Park succeeds in closing it down.

Last week, Village attorneys filed a lawsuit against the church, arguing that the shelter “constitutes an ongoing threat to public health and safety.” The lawsuit cited 28 health and safety code violations caused by the church using the building, which was intended solely for religious services, as an overnight shelter.

"Church Autonomy" Requires Dismissal of Fired Faculty Member's Claims

In Garrick v. Moody Bible Institute, (ND IL, Sept. 25, 2019), an Illinois federal district court held that the "church autonomy" doctrine requires dismissal of claims by a former faculty member of a religious college that she was terminated because of her advocacy in favor of women serving as clergy members. The court said in part:

Garrick’s disagreement with Moody’s beliefs on the role of women in the ministry underlies the majority of Garrick’s allegations..... Under these circumstances, if the Court were to delve into the disputes posed by Garrick, it would impermissibly inject the auspices of government into religious doctrine and governance.

However the court said plaintiff could refile Title VII claims if they are untethered from her disagreements with Moody’s religious views.

Evangelizing Students Sue Over Restrictive Park Rules

A lawsuit was filed yesterday in an Illinois federal district court by Wheaton College students who are members of the Chicago Evangelism Team. The suit challenges limitations on the areas in Millennium Park in which they can engage in open air evangelism and distribute literature. The complaint (full text) in Swart v. City of Chicago, (ND IL, filed 9/18/2019), contends that park rules improperly restrict speech and distribution of free literature in a traditional public forum, violating students' free speech and free exercise rights. Chicago Tribune reports on the lawsuit.

Suit Challenges Illinois Waiver Form To Allow Drivers License Photo With Head Covering

Suit was filed this week in an Illinois federal district court on behalf of a Muslim woman who wears a hijab challenging the disclaimer that Illinois administrative rules require to be filed in order to allow a driver's license photo to be taken wearing a head covering. The complaint (full text) in Bicksler v. Illinois Secretary of State, (ND IL, filed 8/26/2019),contends that plaintiff's free exercise rights under the 1st Amendment and Illinois' Religious Freedom Restoration Act and the Illinois Human Rights Act were violated when she was required to sign this statement:

In observation of my religious convictions, I only remove my head dressing in public when removal is necessary (such as for a medical examination or a visit to a hair dresser or barber). I do not remove the head dressing in public as a matter of courtesy or protocol (such as when entering a professional office or attending a worship service). I acknowledge that if the Director of the Driver Services Department is provided with evidence showing I do not wear a religious head dressing at all times while in public, unless circumstances require the removal of the head dressing, my driver’s license or identification card may be canceled.

CAIR Chicago issued a press release announcing the filing of the lawsuit.

7th Circuit Clarifies Application of Ministerial Exception Doctrine

In Sterlinski v. Catholic Bishop of Chicago, (7th Cir., Aug.8, 2019), the U.S. 7th Circuit Court of Appeals in an opinion by Judge Easterbrook held employment discrimination allegations brought by an organist in a Catholic church must be dismissed under the "ministerial exception" doctrine.  In deciding the case, the court clarified the 7th Circuit's approach to determining when the ministerial exception doctrine will apply:

If the Roman Catholic Church believes that organ music is vital to its religious services, and that to advance its faith it needs the ability to select organists, who are we judges to disagree? Only by subjecting religious doctrine to discovery and, if necessary, jury trial, could the judiciary reject a church’s characterization of its own theology and internal organization. Yet it is precisely to avoid such judicial entanglement in, and second-guessing of, religious matters that the Justices established the rule of Hosanna-Tabor....

It is easy to see a potential problem with a completely hands-off approach. Suppose a church insists that everyone on its payroll, down to custodians and school-bus drivers, is a minister. That is not fanciful—it is what one religious group did assert in Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985)....

The answer lies in separating pretextual justifications from honest ones....  Once the defendant raises a justification for an adverse employment action, the plaintiff can attempt to show that it is pretextual. The defense bears the burden of articulating the justification, but the plaintiff bears the burden of showing that the justification is a pretext.

Near the end of his opinion, Judge Easterbrook adds an interesting tangential discussion of the history of music in the Catholic Church:

Even Hieronymus von Colloredo, the Prince-Archbishop of Salzburg who sacked Wolfgang Mozart, understood that music has a vital role in the Roman Catholic faith. After Colloredo decided that the mass, including its music, must not  exceed 45 minutes, Mozart asked for leave to travel. Colloredo refused and fired him.... Colloredo thought that lesser (and less demanding) musicians would suffice; he did not remove music from the mass. In 1782 he abolished instrumental music in church and severely limited accompanied music, but the organ remained. The rest of the world gained from Colloredo’s decisions, as Mozart moved to Vienna and went on to produce secular masterpieces such as the Marriage of Figaro and the Jupiter Symphony, as well as two glorious masses in which the music alone exceeds 45 minutes (the Mass in C minor, K. 427/417a, and the Requiem, K. 626).

Ecclesiastical Abstention Doctrine Applies To Controversy Over Rental of Catholic Community Center

In Sacred Heart Knanaya Catholic Community Center Building Board v. St. Thomas Syromalabar Diocese of Chicago, 2019 IL App (2d) 180792-U (IL App., May 30, 2019), an Illinois appellate court held that the ecclesiastical abstention doctrine applies to a suit against a Catholic diocese by a Catholic community center board for tortious interference with a business relationship. The diocese barred use of the community center by another Catholic church that had contracted to rent the Center for a Spanish Latin Rite Mass.

Court Rejects RFRA Claims By Former Street Gang Members

In People v. Latin Kings Street Gang, 2019 Ill. App. Unpub. LEXIS 852 (IL App., May 13, 2019), an Illinois appellate court rejected claims by former street gang members that the state violated Illinois Religious Freedom Restoration Act by bringing a frivolous lawsuit against them under the Illinois Streetgang Terrorism Omnibus Prevention Act .

The state sought to obtain damages from 79 individuals and enjoin them from further gang activity including meeting with members of the Latin Kings. Defendants contended that they had left the Latin Kings and become born-again Christians who met with current gang members in order to share the Christian Gospel with them.  They contend that after the suit was filed, they could no longer go into schools to speak with students about the danger of gangs, nor were they able to preach the Gospel to gang members out of fear of being arrested. The court concluded, however:

... [T]he lawsuit here did not constitute a substantial burden on defendants' religious exercise.... [D]efendants were still able to communicate their faith to Latin Kings gang members after the complaint was filed in this case. Oscar testified that he was not prevented from communicating his faith to Latin Kings in a different county or city. There were times when he wanted to reach out to gang members through Facebook to get together so he could share his faith with them, but felt that he could not do so because of the lawsuit. However, he conceded that no one told him that he could not do so and that he merely considered it an inconvenience. Elias testified how he communicated with gang members via text messages.... He did not state that the lawsuit prevented from engaging in such communication, and the record does not reflect that police were monitoring defendants' cell phones such that they would have discovered, and used against them, such evidence. Further, Ruben testified that he held Bible studies in his home and spoke about his faith at other churches.

Court Properly Applied Neutral Principles In Dealing With Factional Dispute In Church

Nelson v. Brewer, (IL App., May 10, 2019), involved a dispute between two factions of a congregational church over control of the church, identity of its pastor and control of its property. The appellate court upheld the trial court's action under Sec. 112.55 of the Illinois Non-Profit Corporation Act appointing a custodian to secure the church's property and bring the church's corporate governance documents in to compliance with law. The court also, through a series of orders, provided for selection of a 5-person board for the church. The appellate court said in part:

We find the circuit court in this case properly applied the neutral principles of law as it found both parties have an equal right to PTC property and carefully applied section 112.55 of the Act to remediate the church’s corporate governance. The court specifically refused to issue an opinion as to who is the rightful pastor because that question is religious in nature. Instead the court limited its findings to corporate reorganization by examining PTC’s articles of incorporation, bylaws, other corporate governing documents, the land trust, and pertinent state statutes to resolve the matter.

New York's High Court OK's Removal Of Bishop Sheen's Remains To Illinois

New York's highest state court has dismissed sua sponte the appeal in In the Matter of Cunningham v. Trustees of St. Patrick's Cathedral, (NY Ct. App., May 2, 2019) (Order List). The decision allows the remains of the late Bishop Fulton J. Sheen to be removed from St. Patrick's Cathedral in New York and moved to Peoria, Illinois.  The move is seen by Sheen's heirs as the only way to advance the cause of sainthood for him. In a short opinion on March 5, 2019 (full text), New York's intermediate appellate court upheld the trial court's decision allowing exhumation. In its dismissal order last week, the Court of Appeals said that "no substantial constitutional question is directly involved." Peoria Journal Star reports on last week's court order.

Religious Exercise Challenge To School's Transgender Policy Moves Ahead

In Students and Parents for Privacy v. School Directors of  Township High School District 211, (ND IL, March 29, 2019), an Illinois federal district court refused to dismiss religious exercise claims by a group of students and parents who object to a high school's policy that allows transgender students to use rest room and locker rooms conforming to their gender identity.  Adopting plaintiffs' label of "compelled affirmation policy," the court held that plaintiffs had stated a claim under Title IX, the Illinois Religious Freedom Restoration Act and the First Amendment.  The court said in part:

It is enough that plaintiffs allege SPP Parents and SPP Students have sincere religious beliefs that they should not undress or use the bathroom in front of members of the opposite sex and that SPP Parents have a sincere religious belief that they should teach such modesty to their children....

SPP Students are at risk of exposure to opposite-sex individuals while they are undressing or using the restroom, in violation of their sincerely-held religious beliefs.... 

[P]laintiffs have alleged that District 211 conveyed to students that anyone who objects to the compelled affirmation policy is a bigot or intolerant.

The court however dismissed plaintiffs' claims of violations of the right to bodily privacy and the right to control the education of one's children.

Illinois AG Says Catholic Church Is Delinquent In Reporting On Offending Priests

A press release from Illinois Attorney General Lisa Madigan's office yesterday says that preliminary findings in an investigation begun in August show that the Catholic Church in Illinois has not fully disclosed information on priests accused of sexual abuse:

Attorney General Lisa Madigan today released preliminary findings of her ongoing investigation into the Catholic Church. While the six dioceses in Illinois have now publicly identified 185 clergy members as having been “credibly” accused of child sexual abuse, Madigan’s investigation has found that the dioceses have received allegations of sexual abuse of at least 500 additional priests and clergy members in Illinois....

The investigation has revealed that allegations frequently have not been adequately investigated by the dioceses or not investigated at all. In many cases, the Church failed to notify law enforcement authorities or Department of Children and Family Services (DCFS) of allegations of child sexual abuse. Among the common reasons the dioceses have provided for not investigating an allegation is that the priest or clergy member was deceased or had already resigned at the time the allegation of child sexual abuse was first reported to the diocese.

“By choosing not to thoroughly investigate allegations, the Catholic Church has failed in its moral obligation to provide survivors, parishioners and the public a complete and accurate accounting of all sexually inappropriate behavior involving priests in Illinois,” Madigan said. “The failure to investigate also means that the Catholic Church has never made an effort to determine whether the conduct of the accused priests was ignored or covered up by superiors.”

City Recreation Department Trip To Biblical Museums Cancelled After Objections

Christian Post reports that the Charleston, Illinois parks and recreation department has cancelled a planned town trip to southern Ohio and northern Kentucky that included visits to the Answers in Genesis Creation Museum and Ark Encounter. Freedom From Religion Foundation had complained to the city (full text of letter) that promotion of visits to these museums violates the Establishment Clause because it endorses the religious mission of museum founder Ken Ham.

DOJ Investigates Clergy Sexual Abuse in PA, NY; New Civil Suit In Illinois

CNN reported yesterday that the U.S. Department of Justice has issued subpoenas to seven of the eight Catholic dioceses in Pennsylvania in the wake of a grand jury report on clergy sex abuse since 1947. (See prior posting).  Separately, the Justice Department reportedly subpoenaed documents relating to pornography, transporting victims across state lines and cell phone and social media use from the Buffalo diocese in late May.

Meanwhile AP reports that a civil suit was filed yesterday in Illinois federal district court against all six dioceses in Illinois and the Catholic Conference of Illinois charging a continued cover-up of clergy sexual abuse.   Specific instances of child sexual abuse are charged against three of the dioceses. The suit seeks damages as well as the public disclosure of all priests that have been accused of sexual molestation.

Ministerial Exception In Hostile Work Environment Cases

In Demkovich v. St. Andrew the Apostle Parish, Calumet City, (ND IL, Sept. 30, 2018), an Illinois federal district court set out an extensive analysis of when the ministerial exception doctrine bars claims for a hostile work environment, as opposed to claims involving firing or refusal to hire, under Title VII and the ADA.  In the case, a parish music director claimed damages because of abusive and harassing behavior growing out of his engagement and marriage to a same-sex partner.  The court said in part:

[W]hen a minister brings a claim that does not challenge a tangible employment action, then whether the First Amendment bars the claim depends on a case-by-case analysis on the nature of the claim, the extent of the intrusion on religious doctrine, and the extent of the entanglement with church governance required by the particular litigation. If the nature of the claim would require that a court take stance on a disputed religious doctrine, then that weighs in favor of First Amendment protection for the church....

If, on the other hand, no religious justification is offered at all (for a nontangible employment action), then there would be little or no risk of violating the Free Exercise Clause....

... [L]itigation over Reverend Dada’s alleged harassment based on Demkovich’s sex, sexual orientation, and marital status would excessively entangle the government in religion. To start, the Archdiocese offers a religious justification for the alleged derogatory remarks and other harassment....

... [H]arassing statements and conduct are motivated by an official Church position (or at least the Archdiocese would defend the case on those grounds). Of course, regulating how the official opposition is expressed is not as directly intrusive as outright punishing the Church for holding that position (which a federal court cannot do). But it comes close, and must weigh in favor of barring the claim under the Religion Clauses.