Christian Music Teacher Sues Over School's Transgender Policy

A former music teacher in a Brownsburg, Indiana school has sued the school claiming failure to accommodate his religious beliefs as required by Title VII of the 1964 Civil Rights Act as well as violation of his 1st and 14th Amendment rights.  The complaint (full text) in Kluge v. Brownsburg Community School Corp., (SD IN, filed 6/18.2019), alleges that plaintiff, John Kluge, is a Christian whose religious beliefs include the belief that it is sinful to promote transgender behavior. He was forced to resign because of his refusal to comply with school policy requiring that he use transgender students' preferred names. For a while the school provided an accommodation that allowed him to address all students only by their last names, but that concession was then withdrawn. The suit seeks an injunction to bar enforcement of the school's policy, as well as back pay for plaintiff. Indiana Lawyer reports on the lawsuit.

Supreme Court Upholds Part of Indiana Abortion Law; Denies Review On Injunction For Part

The U.S. Supreme Court Monday in Box v. Planned Parenthood of Indiana and Kentucky, (May 28, 2019), handed down a per curiam opinion on a petition for certiorari before briefing on the merits, but with several amicus briefs having been filed, The court upheld Indiana's law prohibiting fetal remains from abortions being disposed of as medical waste. However the Court denied certiorari as to Indiana's law prohibiting sex-, race- or disability selective abortions, leaving in effect the permanent injuinction approved by the 7th Circuit. (Full text of 7th Circuit opinion.) Justice Thomas filed a separate concurring opinion, but wrote at length criticizing the use of abortion for eugenics purposes. Justices Sotomayor and Ginsburg would have denied review on both issues, with Justice Ginsburg writing a short opinion expressing her views. AP reports on the decision.

Battle For Control Over Christian Broadcasting and Relief Organization

An Indiana federal district court last week allowed plaintiffs to move ahead with most of their claims in a lawsuit between two cousins in their battle to control of LeSEA, described by the court as:

a Christian non-profit organization based in South Bend, Indiana and with wide-ranging operations. LeSEA was founded by Dr. Lester Frank Sumrall (grandfather of defendant Lester Sumrall) in 1957 and has grown to operate churches, bookstores, a Bible college, a large food and disaster relief operation, as well as a series of television and radio broadcast networks focused on religious programming.

In  LeSEA Inc. v. LeSEA Broadcasting Corp., (ND IN, May 10, 2019), the court described the legal issues involved:

The gist of the case involves allegations of a wide ranging attempt to steal trademarks and other intellectual property as well as a host of alleged state law violations sounding mostly in conversion and other intentional torts.

The Indiana Lawyer, reporting on the decision, said in part:

Two “warring cousins” who each claim to be the rightful heir to the South Bend-based LeSEA Christian broadcasting network will continue to slug it out after a federal judge largely denied one cousin’s motion to dismiss.

Tax Preparer Refuses To Prepare Joint Return For Same-Sex Couple

Washington Post reports on the latest clash between religious liberty assertions and non-discrimination principles:

For four years, Bailey Brazzel says, she had employed the same tax preparer, Nancy Fivecoate of Carter Tax Service in Russiaville, Ind. Fivecoate prepared the taxes without issue each time — until this year, when Brazzel brought her new wife, Samantha.

Fivecoate declined to serve the couple, citing her religious beliefs.

This was the first year the Brazzels, who wed in July, were filing jointly as a married couple. According to Samantha, Fivecoate explained that she believed marriage was between a man and a woman and that she would therefore not be able to prepare their taxes.

Indiana does not have a statewide law barring discrimination on the basis of sexual orientation. (See prior related posting.) [Thanks to Nathan Walker for the lead.]

Supreme Court Review Sought In Indiana Abortion Restrictions Case

On Oct. 12, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Commissioner of the Indiana State Department of Health v. Planned Parenthood of Indiana and Kentucky, Inc., (cert. filed, Oct. 12, 2018).  The petition presents two questions for the Court's review:

1. Whether a State may require health care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation.

2. Whether a State may prohibit abortions motivated solely by the race, sex, or disability of the fetus and require abortion doctors to inform patients of the prohibition.

The 7th Circuit in an opinion (full text) in April held the provisions of Indiana's abortion laws unconstitutional. Rewire News reports on the petition for review.

Group Lacks Standing To Challenge Charter School Act On Establishment Clause Grounds

In Indiana Coalition for Public Education v. McCormick, (SD IN, Sept. 6, 2018), an Indiana federal district court dismissed on standing grounds a suit by an advocacy organization challenging on Establishment Clause grounds Indiana's Charter School Act. Plaintiff claims that it is unconstitutional for the state to allow a religious college to be an authorizer for public charter schools.  The court said in part:

The Coalition’s Complaint is really a challenge to Indiana’s policies of school choice and of school funding following the student, draped in the clothing of an Establishment Clause challenge. But the Coalition challenges just one recipient of that funding, and it all but admits that its alleged injuries are in no meaningful way caused by the religious character of Seven Oaks’ authorizer. Rather, it is a mere coincidence that Seven Oaks, with which the public school corporations must compete for students, happens to be authorized by a religious institution. The school corporations would face exactly the same funding difficulties (and thus the Coalition would face the same alleged injury) had Seven Oaks been authorized by a secular private college, as permitted by the Charter School Act, instead of Grace College. These observations confirm the gross misfit between the alleged constitutional injury and the Coalition’s requested relief.

Amish Couple Sue Seeking Exemption From Photo Requirement To Get Permanent U.S. Residency

AP reports that an Old Order Amish couple filed suit yesterday in an Indiana federal district court challenging the federal government's refusal to grant permanent residency to the wife--a Canadian-- unless the husband and wife furnish photos of themselves.  The couple has refused because of their religious belief that photos are graven images prohibited by the Second Commandment. The couple wed in 2014 after the husband's first wife died. They live with their 13 children in an Amish farming community in southern Indiana. They claim that the government's refusal to accommodate their religious beliefs violate their 1st and 5th Amendment rights. [Thanks to Tom Rutledge for the lead.]

Indiana Court Rejects RFRA Exemption For Sacramental Marijuana Use

In First Church of Cannabis, Inc. v. State of Indiana, (IN Cir. Ct, July 6, 2018), an Indiana trial court judge rejected claims by the First Church of Cannabis that under the state's Religious Freedom Restoration Act it is entitled to an exemption from the state's law relating to the possession and use of marijuana when it is used for sacramental purposes. The court refused to enjoin state enforcement against the church, concluding that the state has a compelling interest in preventing marijuana use. The Hill reports on the decision.

Another Court Enjoins Obama Era Contraceptive Mandate On Religious Non-Profits

As it has done in other cases, last week in Grace Schools v. Azar, (ND IN, une 1, 2018), the Trump Administration has conceded that applying the Obama Administration's contraceptive coverage rules to religious non-profits would violate the Religious Freedom Restoration Act.  The court thus issued a permanent injunction against applying the Obama Administration's compromise to Grace College & Theological Seminary.  Ft. Wayne News-Sentinel reports on the decision.

Indiana Homicide Law Expanded To Cover Non-Abortion Killing of Fetus At Any Stage

On March 25, Indiana Governor Eric Holcomb signed Senate Bill 203 (full text).  The new law expands the state's murder and manslaughter laws to include killing of a fetus "at any stage of development".  Prior law covered only killing of a fetus that has attained viability.  The law does not apply to a lawfully performed abortion or to a pregnant woman who terminates her own pregnancy or kills a fetus she is carrying. Liberty Counsel issued a press release on the new law.

7th Circuit: School's Christmas Pageant Does Not Violate Establishment Clause

In Freedom From Religion Foundation v. Concord Community Schools, (7th Cir., March 21, 2018), the U.S. 7th Circuit Court of Appeals held that a revised version of an annual Christmas Spectacular put on by an Elkhart, Indiana high school does not violate the Establishment Clause.  The court describes the revised pageant's challenged second half:

the show spends about four and a half minutes each explaining and performing a song to represent Hanukkah and another for Kwanzaa. Images are projected onto large screens to accompany both songs. For the remaining 20 minutes, students perform numerous Christmas songs that are more religious in nature (e.g., “Jesus, Jesus, Rest Your Head,” “O Holy Night”). During one of the songs, a nativity scene appears on stage for two minutes. The manger uses mannequins, not student actors. There are no New Testament readings.

The court explained its conclusion as follows, in part:

It is worth emphasizing that no one factor alone—the secular first half, the nativity’s lack of prominence, the inclusion of other holidays—leads us to conclude that the 2015 Spectacular passes muster under the endorsement test. Overall, the 2015 performance in its current form would not cause a reasonable observer to believe that Concord is signing off on a particular religious message....

Although the matter is not open‐and‐shut, we see no reason to reverse the district court’s conclusion on summary judgment that the 2015 show did not pressure individuals to support any religious beliefs.

Education Week reports on the decision.

Church Camp Loses Challenge To Zoning Decision On Neighboring Dairy Farm

In House of Prayer Ministries, Inc. v. Rush County Board of Zoning Appeals, (IN App., Jan. 16, 2018), an Indiana state appeals court rejected a challenge by a church summer camp to a zoning board decision granting a special exception to a dairy farm to operate a concentrated animal feeding operation one-half mile from the summer camp.  The church argued in part that the grant of the special exception substantially burdens its religious exercise by "imperiling the health of the children" at its camp.  The court first held that the federal Religious Land Use and Institutionalized Persons Act is not available to the church here because a RLUIPA claim can be raised only by a person with a property interest in the land that is regulated.  RLUIPA does not extend to other property that is merely affected by a land use decision as to neighboring land.

The court went on to hold that Indiana's state Religious Freedom Restoration Act was also not violated:

The [Board of Zoning Appeal's] apparent assessment that House of Prayer will not be substantially burdened in the exercise of its religion by the grant of the special exception is supported by substantial evidence.

Indiana Lawyer reports on the decision.

Suit Challenging Indiana Charter School Law Mostly Survives Motion To Dismiss

In Indiana Coalition for Public Education v. McCormick, (SD IN, Nov. 29, 2017), an Indiana federal district court refused to dismiss standing and Establishment Clause challenges by an education advocacy group to the provision in Indiana's Charter School Act that gives religious institutions the power to authorize charter schools.  The court said in part:

Authorizers make important decisions about who may establish charter schools and under what circumstances a charter school may be established, which includes details such as the educational methodology the school will employ. Additionally, charter schools are publicly funded and, insofar as they draw students from public school corporations, their funding may result in a shift of public funds away from other schools. These decisions, when made by a religious institution, may raise Establishment Clause concerns....

The court however dismissed federal and state constitutional challenges to a provision that allows religious authorizers’ to receive an administrative fee of 3% of state funding.

University's Anti-Harassment Policy Upheld Over Prof's Free Speech Claims

In Board of Trustees of Purdue University v. Eisenstein, (IN App., Oct. 30, 2017), and Indiana Court of Appeals held that a trial court should have dismissed a lawsuit brought by an associate professor at Purdue University Calumet against the university, its board of trustees and several of its faculty members.  Associate Professor Maurice Eisenstein was accused by several students and faculty of making anti-Muslim and anti-Black statements in his Introduction to Judaism class and in Facebook postings.  A number of students and faculty, as well as the Muslim Student Association, filed harassment complaints against Eisenstein.  Subsequently Eisenstein made derogatory comments to two of the faculty who had complained, and they filed additional charges of retaliation.  The university ultimately upheld only the retaliation claims.  Eisenstein then sued claiming, among other things, that the university's retaliation policy is unconstitutionally vague and that his free speech rights were infringed. He also alleged breach of contract and other claims. In a 42-page opinion, the court rejected Eisenstein's claims on a number of grounds.  Inside Higher Ed reports on the decision.

7th Circuit Hears Arguments On Christmas Pageant Challenge

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in Freedom From Religion Foundation v. Concord Community Schools. (Audio of oral arguments).  In the case, an Indiana federal district court upheld the constitutionality of a modified version of the annual Christmas Spectacular put on by an Indiana high school.  Plaintiffs had challenged the pageant under the Establishment Clause. The court had previously issued a preliminary injunction against the 2014 and proposed 2015 versions that included a live Nativity Scene and Bible passages. (See prior posting.)  Subsequently the court awarded nominal damages and a declaratory judgment as to the earlier versions. (See prior posting.)  Courthouse News Service reports in more detail on yesterday's oral arguments.

Indiana Sex Offenders Not Banned From Churches

In John Doe 1 v. Boone County Prosecutor, (IN App., Oct. 24, 2017), the Indiana Court of Appeals held that the state's sex offender law does not prohibit serious sex offenders from attending their church, even if the church conducts Sunday school or provides child care at the same site.  Indiana law prohibits "serious sex offenders" from entering "school property."  The Court concluded:

Churches and religious instruction are not schools, nor do they become so by use of the popular and common name of “Sunday school.”

Zionsville (IN) Times Sentinel reports on the decision.

Good News Clubs Win Preliminary Injunction

In Child Evangelism Fellowship of Indiana, Inc. v. Indiana Metropolitan School District of  Pike Township, (SD IN, Aug. 1, 2017), an Indiana federal district court granted a preliminary injunction to Child Evangelism Fellowship preventing the school district from charging CEF a fee for using school facilities for the Good New Club meetings until the district develops an acceptable policy as to which groups must pay for use of school facilities.  The school district currently has a policy allowing some groups, such as the Boy Scouts, to "partner" with the schools and use facilities free of charge, while others, like CEF, are charged a fee.  The court held that the school district could charge fees to some groups and not others if the groups were classified in a viewpoint-neutral way.  Here however, "the District has given itself unbridled discretion to determine which outside groups pay fees to use its facilities and, indeed, which outside groups are permitted to use its facilities at all...." The court held:

This type of unbridled discretion and vague, unwritten “partner” policy violates the First Amendment.

Liberty Counsel issued a press release announcing the decision.

State Tax Deduction Available To Father Who Objected To Social Security Numbers For His Children

In Larsen v. Indiana Department of State Revenue, (IN Tx. Ct., July 31, 2017), the Indiana Tax Court held that a taxpayer who had religious objections to obtaining social security numbers for his children could still take dependency deductions for them.  Because federal tax authorities allowed alternative documentation for federal tax purposes, that suffices for state tax purposes as well.  The state tax statute merely requires that the dependency allowance was allowed by the IRS, even though the state tax form calls for more. Indiana Lawyer reports on the decision.

Court Interprets Vaccination Provision In Custody Decree

In In Re the Paternity of: G.G.B.W., (IN App., July 26, 2017), an Indiana appeals court held that the mother of a minor child should be held in contempt of a custody decree when she refused for religious reasons to have the child vaccinated.  A decree consented to by the mother and father of the child provided:

If the child attends a school that requires vaccinations for enrollment, and the child will be denied enrollment unless she receives the vaccinations, then the child will be given the required vaccinations for enrollment.

The court held that this requires the child be vaccinated upon enrollment in a school that requires its students to be vaccinated, even when a religious exemption from the vaccination requirement was available under Indiana statutes, saying:

If the parties intended the religious objection exemption to apply, they most likely would not have included the vaccination provision in the agreement at all, because a religious objection would always trump a school’s vaccination requirement and the provision would be meaningless.

The father was particularly concerned because of the danger that would be posed to his twin infant children if they were around the older child who was not vaccinated. Indiana Lawyer reports on the decision.

Good News Club Claims Unequal Treatment By School District

A suit was filed in an Indiana federal district court yesterday against the Pike County, Indiana School District by the Good News Clubs alleging discriminatory treatment by the school district. The complaint (full text) in Child Evangelism Fellowship of Indiana, Inc. v. Indiana Metropolitan School District of Pike County, (SD IN, filed 5/8/2017), alleges that the school district charged Good News Clubs a fee for after-school use of elementary school facilities while waiving the fee for other community organizations. It also contends that Good News Clubs were denied the right to distribute literature through the schools while other community groups with whom the school partnered were permitted to do so. The suit asserts violations of the 1st and 14th Amendment. Liberty counsel issued a press release announcing the filing of the lawsuit.