Indiana Legislature Passes Law Protecting Student Religious Expression In Schools

After final passage, yesterday the Indiana legislature sent HB 1024 (full text) to Gov. Eric Holcomb for his signature.  The bill authorizes public high schools to offer an elective course surveying religions of the world. The course must include historical, cultural and literary study, and must be "neutral, objective and balanced."  In a separate section, the Act prohibits public schools from discriminating against a student or the student's parent on the basis of religious viewpoint or religious expression. It provides that students may express their beliefs about religion in homework, artwork, and other written and oral assignments, which are to be judged by ordinary academic standards of substance and relevance.

The Act provides that public school students may pray or engage in religious activities or religious expressions before, during, and after the school day in the same manner and to the same extent that students may engage in nonreligious activities or expression. They may wear wear clothing, accessories, and jewelry that display religious messages or religious symbols in the same manner and to the same extent that other types of clothing, accessories, and jewelry that display messages or symbols are permitted.Religious groups are to be given the same access to school facilities as other non-curricular groups. Liberty Counsel issued a press release announcing the passage of the legislation.

Suit Says Indiana Charter School Act Violates Establishment Clause

Indiana's Charter School Act names, among the institutions that may authorize public charter schools, some 30 non-profit colleges and universities-- public, private and religious. Charter schools they authorize must be non-sectarian and non-religious.  Yesterday a non-profit advocacy organization supporting public schools filed suit against Indiana education officials contending that the Charter School Act violates the Establishment Clause as well as the no-aid cause of Indiana's constitution. The complaint (full text) in Indiana Coalition for Public Education v. McCormick, (SD IN, filed 4/25/2017) focuses on the authorization of a charter for Seven Oaks Classical School by Grace College and Seminary, an evangelical Christian college. It contends that the Act violates the Establishment Clause by delegating government power to authorize charter schools to a religious institution and by authorizing payment of public funds as an administrative fee to that religious institution. Indiana Lawyer reports on the lawsuit.

Court Awards Nominal Damages Over School's Live Nativity Scene Show

In Freedom From Religion Foundation v. Concord Community Schools, (ND IN, March 6, 2017), an  Indiana federal district court awarded nominal damages totaling $10 and issued a declaratory judgment concluding that Concord High School's Christmas Spectacular as performed in 2014 and as proposed to be performed in 2015 violated the Establishment Clause. The shows included a living Nativity scene. After rejecting the school's mootness arguments, the court ruled:

The 2014 version of the Christmas Spectacular presents an even clearer case. Not only did this version of the show include the same extended living nativity scene as the proposed-2015 show, in which the nativity scene was emphasized unlike any other aspect of the show, it included a narration consisting of Bible passages read by a faculty member, telling the story of Jesus’ birth. It also lacked any context suggesting an educational or cultural purpose for this presentation, and instead focused solely on the Christmas holiday, and in particular, the religious content of that holiday. The message of endorsement conveyed by this version of the show was unmistakable. Indeed, at no point in this litigation has the School presented any argument in defense of this version of the show.

FFRF issued a press release announcing the decision. (See prior related posting.)

Bible-Based Daycare Denied Property Tax Exemption

In Hamilton County Assessor v. Duke, (IN Tax Ct., Feb. 3, 2017), the Indiana Tax Court denied a property tax exemption to the owner of property in which Little Lamb Daycare, a for-profit daycare that offers a Bible-based curriculum, operates.  The court found that the failure to provide a comparison of the amount of time the property was used for exempt purposes in relation to the overall time it was used for all purposes prevents the granting of either an educational use or a religious use exemption. Indiana Lawyer reports on the decision.

Indiana RFRA Not Defense To Tax Evasion

In Tyms-Bey v. State of Indiana, (IN App., Jan. 13, 2017), an Indiana appeals court, in a 2-1 decision, held that a state RFRA defense cannot be raised in a tax evasion prosecution.  According to the majority opinion:

as a matter of law ..., in the context of Indiana’s RFRA, there is a compelling governmental interest in collecting income tax revenue. Moreover, we hold as a matter of law that the least restrictive means of furthering that compelling interest is uniform and mandatory participation in the income tax system. There are no facts that [defendant] could proffer with respect to his exercise of religion that would not be overcome by the State’s compelling interest and the means used by the State in furthering that interest. 

Judge Najam dissenting said in part:

Tyms-Bey’s alleged RFRA defense may ultimately not succeed, but he is entitled to his day in court. The majority’s holding that, in effect, Tyms-Bey has not stated a claim under RFRA and that he is not even entitled to present evidence in support of his alleged defense is too quick to dispose of Tyms-Bey’s claim and denies him the particularized adjudication that is expressly afforded to him by Indiana’s RFRA.

Firing Clerk Who Refused To Process Same-Sex Marriage Licenses Did Not Violate Title VII

In Summers v. Whitis, (SD IN, Dec. 15, 2016), an Indiana federal district court held that an Indiana County Clerk did not violate Title VII of the 1964 Civil Rights Act when she fired a deputy clerk who refused, on religious grounds, to process marriage licenses for same-sex couples. The court held:

Here, the court finds no objective conflict between Summers’ duties as a deputy clerk and her religious opposition to same-sex marriage. When it came to marriage licenses, Summers’ job merely required her to process the licenses by entering data and handing out information. Specifically, she had to pull up the application, verify that certain information was correct, collect a statutory fee, print a form, and record the license in a book for public record. At bottom, she was simply tasked with certifying–on  behalf of the state of Indiana, not on her own behalf– that the couple was qualified to marry under Indiana law. The duties were purely administrative.

To be clear, Summers did not perform marriage ceremonies or personally sign marriage licenses or certificates. She was not required to attend ceremonies, say congratulations, offer a blessing, or pray with couples. Her employer did not make her express religious approval or condone any particular marriage. Summers remained free to practice her Christian faith and attend church services. She was even free to maintain her belief that marriage is a union between one man and one woman. Thus, she was not forced to “choose between [her] religious convictions and [her] job.”...

... [T]he court does not question the sincerity of Summers’ beliefs. She maintains that “it’s not God’s law to have [same-sex couples] marry,” ... and has pointed to select verses from the Bible in support. That is fine; she has every right to believe that. However, that belief, no matter how sincerely espoused, does not objectively conflict with the purely administrative duty to process marriage licenses. Summers’ desire to avoid handling forms related to activities of which she personally disapproves is not protected by federal law. Title VII is not a license for employees to  perform only those duties that meet their private approval.

The court held, alternatively, that any religious conflict was with federal law, not with an employment requirement.

Town Sued Over Cross On Christmas Tree

As reported yesterday by Fox 59 News, the ACLU has filed suit on behalf of a resident of Knightstown, Indiana against the city challenging the cross that tops the Christmas tree in the town square. The tree has been displayed for many years. However plaintiff Joseph Tompkins says that the cross is "is the preeminent symbol of Christianity," and this makes the display religious and a violation of the Establishment Clause. Other town residents support the cross and have various ideas for showing their support.

UPDATE: On Dec. 12, the Knightstown Council had the cross atop the Christmas tree removed, saying it could not win the lawsuit filed by the ACLU. Town residents unsuccessfully attempted to block the bucket truck removing the cross. (Fox 59 News).

Indiana Appeals Court Hears Oral Arguments In RFRA Defense To Tax Evasion

On Monday, the Indiana Court of Appeals heard oral arguments (video of full arguments) in Tyms-Bey v. State of Indiana. In the case, defendant charged with tax evasion filed notice that he intended to raise a religious freedom defense under Indiana's Religious Freedom Restoration Act. The trial court struck the defense and defendant filed this interlocutory appeal.  Washington Post reports in more detail on the case.

Suit Challenging Indiana Anti-Discrimination Laws Moves Ahead

As reported by the Indianapolis Star, an Indiana state trial court judge is allowing a lawsuit filed by three conservative advocacy organizations to move ahead.  The suit challenges laws barring discrimination on the basis of sexual orientation.  The organizations assert that the laws infringe on their free exercise rights. The suit challenges the ordinances of four Indiana cities as well as the so-called "fix" to Indiana's Religious Freedom Restoration Act that prevents using RFRA to discriminate. The order (full text) in Indiana Family Institute, Inc. v. City of Carmel, Indiana, (IN Super. Ct., Nov. 16, 2016), however, requires plaintiffs to file an amended complaint adding the state of Indiana as a party. In a statement (press release), plaintiffs' counsel said:

Plaintiffs currently stand stripped of the heightened legal protection provided under RFRA and must host speakers and hire employees who advocate for same-sex marriage contrary to their religious beliefs. We believe in the constitutionally protected free-exercise of religion that affects people who advocate for traditional marriage, just as it protects all other religious beliefs.

Court Upholds Modified Version of School's Annual Christmas Production

In Freedom From Religion Foundation v. Concord Community Schools, (ND IN, Sept. 14, 2016), an Indiana federal district court upheld against an Establishment Clause attack a modified version of the annual Christmas Spectacular put on by an Indiana high school. The court had previously issued a preliminary injunction against the 2014 and proposed 2015 versions that included a live Nativity Scene. (See prior posting.) The court now ordered the parties to submit briefs as to whether claims regarding those versions are now moot, and if they are not, what remedies are appropriate. The court then concluded that the version of the Christmas Spectacular actually performed in 2015 after the issuance of the preliminary injunction-- a version that modifies the nativity scene and adds Chanukah and Kwanzaa elements-- does not violate any of the Establishment Clause tests.  The court said in part:

At bottom, the endorsement test involves a holistic, qualitative assessment of the totality of the circumstances of a given display. Here, based on the circumstances and presentation of the show as a whole, and the way in which an objective, reasonable observer would likely perceive it, the Court finds that the Christmas Spectacular that was actually performed in 2015 did not convey a message of endorsement of religion.

An FFRF press release, which contains links to prior pleadings in the case, discusses yesterday's decision.

Indiana's Bar On Name Changes By Non-Citizens Challenged As Violating Transgender Rights

Yesterday the battle over transgender rights-- which has often had religious overtones-- took a different turn with the filing of a federal court lawsuit by a transgender male from Mexico who was granted political asylum in the United States and who lives in Indiana.  At issue is an Indiana law that prohibits non-citizens from obtaining a legal change of name. The complaint (full text) in Doe v. Pence, (SD IN, filed 9/13/2016), contends that the law violates plaintiff's 1st and 14th Amendment rights, saying in part:

For a transgender person, a change of name is in many cases a necessary part of treatment for Gender Dysphoria....  Transgender people face a heightened risk of discrimination, harassment, and violence when their transgender status is known to others. Being referred to by or having to identify oneself by a name traditionally associated with the person’s sex assigned at birth, rather than with the person’s lived gender, can “out” a transgender person to others, revealing their private medical information and putting them at serious risk of harm.

Plaintiff asserts, in in addition to equal protection, autonomy and privacy claims, a free speech right to change his name:

Indiana Code Section 34-28-2-2.5(a)(5) violates the First Amendment right to freedom of speech by compelling speech from Plaintiff that betrays and falsely communicates the core of who he is.... For transgender persons, communicating their name and expressing their gender is speech protected by the First Amendment. Plaintiff’s adoption of the traditionally masculine name “John” conveys the message that he is a man, an essential component of personal identity.

MALDEF issued a press release announcing the filing of the lawsuit. Wall Street Journal reports on the lawsuit.

Court Strikes Down Indiana's So-Called Anti-Discrimination Ban on Abortions

In Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Department of Health, (SD IN, June 30, 2016), an Indiana federal district court issued a preliminary injunction against enforcing new regulation of abortions and abortion practices that were scheduled to take effect today.  One new prohibition (the so-called anti-discrimination provisions) bars abortion even before viability if the reason is the sex of the fetus, the fetus has been diagnosed with Down's syndrome or any other disability, or because of the race, color, national origin or ancestry of the fetus. The second provision requires abortion providers to inform their patients of these restrictions. The third provision alters the way in which healthcare providers must dispose of fetal tissue.  The court concluded:

nothing in Roe, Casey, or any other subsequent Supreme Court decisions suggests that a woman’s right to choose an abortion prior to viability can be restricted if exercised for a certain reason. The right to a pre-viability abortion is categorical.

Focusing on the fetal tissue disposal requirements, the court said that it:

can find no legal support for the State’s position that it has a legitimate state interest in “promoting respect for human life by ensuring proper disposal of fetal remains."

Chicago Tribune reports on the decision.

7th Circuit: Bus Company Wrongly Refused Ad From Pro-Life Health Link

In Women's Health Link, Inc. v. Fort Wayne Public Transportation Corp., (7th Cir., June 22, 2016), the U.S. 7th Circuit Court of Appeals held that Fort Wayne's Citilink wrongly refused to accept an ad that Women's Health Link wanted to place on city buses. Citilink's rules bar ads that "express or advocate opinions or positions upon political, religious, or moral issues."  The proposed ad did not express any such opinion or position, but the health care referral service it advertised is pro-life and so urges alternatives to abortion.  The court held that Citilink's rules are limited to ad content, and do not relate to the advertiser's underlying policies or material that may be on the advertiser's website. It concluded: "Citilink’s refusal to post the ad was groundless discrimination against constitutionally protected speech." Reuters reports on the decision.

Christian Camp Says Nearby Dairy Farm Approval Violates RLUIPA

A lawsuit was filed last month in an Indiana state trial court by a Christian youth camp which objects to a zoning board's approval of a large dairy farm nearby. The complaint (full text) in House of Prayer Ministries, Inc. v. Rush County Board of Zoning Appeals, (filed 5/16/2016), alleges that the 1400 cows and three large waste lagoons on the farm will expose campers to noxious odors and harmful air emissions that will "interfere with Harvest Christian Camp's thirty-year mission and ability to provide a safe, healthy, and Christian rural setting for thousands of children and teens to be educated, enriched spiritually, and enhanced by the outdoors...."  This, the complaint alleges, amounts to a substantial burden that violates the camp's rights under RLUIPA, the Indiana Religious Freedom Restoration Act, the First and 14th Amendments and the state constitution's equal privileges and immunities clause. RLUIPA Defense blog reports on the case.

State Trooper Fired For Proselytizing During Traffic Stop

According to WCPO News, last Thursday the Indiana State Police fired state trooper Brian Hamilton after a formal complaint was filed against him by motorist Wendy Pyle who charges that when Hamilton stopped her to give her a warning ticket for speeding, he also asked her what church she attends and whether she was saved.  The ACLU has filed suit over the incident.  Hamilton was sued in 2014 by another woman for similar proselytizing during a traffic stop. (See prior posting.)

Church of Cannabis Leader Sues Former Police Chief For Defamation

According to a report yesterday from WKYC News, in Indianapolis, Indiana, the founder of the First Church of Cannabis has filed a defamation against the city's former police chief Rick Hite.  At a police news conference shortly before the church's inaugural service, the police chief warned that anyone smoking marijuana at the church would be prosecuted.  Referring to the Church's leader Bill Levin, the police chief said: "As Jim Jones once did within our state, he led a group of people into a place of no return. We don't want that to happen again in this state."

Indiana City Strengthens LGBT Anti-Discrimination Protections

As reported by the Evansville Courier & Press, Evansville, Indiana city council on Monday, by a 7-2 vote, passed Ordinance G-2016-05 (full text) which expands anti-discrimination protections for gay, lesbian, bisexual and transgender individuals.  Previously the city banned discrimination on the basis of sexual orientation and gender identity, but the city's Human Relations Commission essentially lacked enforcement power. Investigation and mediation were solely voluntary on the part of the parties. The new ordinance gives the Human Relations Commission the same enforcement powers in cases of LGBT discrimination, as in discrimination on other bases. The new ordinance however also enacts new exemptions from the city's anti-discrimination provisions.  It exempts religious and religiously affiliated organizations, as well as private social clubs. City Council rejected proposed broader exemptions for individuals and non-profits with a "religious conscience."

Court Upholds Bus Company's Rejection of Pro-Life Referral Ads

In Women's Health Link, Inc. v. Fort Wayne Public Transportation Corp., (ND IN, Jan. 5, 2016), an Indiana federal district court upheld a decision by Citilink (Ft. Wayne's public bus service) to reject an ad from Women's Health Link, a pro-life health care referral service.  Citilink makes space available for public service announcements from non-profit organizations, but only if they do not express or advocate opinions on political, religious, or moral issues. The court held that Citilink maintains its advertising space as a "non-public forum".  According to the court:

The evidence doesn’t support Women’s Health Link’s contention that Citilink allowed comparable advertisements that address the same or similar topics but advocate a non-life-affirming position....

The reasonableness of the restrictions depends on the purpose of the forum.  In this case, the stated purpose was maximizing revenue, keeping the cost of riding the bus down, protecting Citilink’s passengers from the risk of imposing on a captive audience, and avoiding any “endorsement, implied or otherwise” of the product, service or message. The restrictions on political, religious, and moral speech serve that purpose and are reasonable under the circumstances.

ADF issued a press release reacting to the decision

Suit Challenges Non-Discrimination Fix To Indiana's RFRA ; Local Anti-Discrimination Laws

In Indiana yesterday, two pro-family advocacy groups filed suit in state court challenging the constitutionality of this year's anti-discrimination "fix" to Indiana's Religious Freedom Restoration Act.  The suit also challenges the legality of two local anti-discrimination ordinances-- one adopted by the city of Carmel and one by Indianapolis-Marion County.  The 178-paragraph complaint (full text) in Indiana Family Institute, Inc. v. City of Carmel, Indiana, (IN Super. Ct., filed 12/10/2015), says that plaintiff organizations believe in the Biblical teaching that marriage must be between one man and one woman, and that sexual relations must be within that marriage context.  They want to follow these teachings in their employment decisions and their programs.  They contend that the challenged laws preclude this, and in doing so violate a variety of state and federal constitutional provisions.  In a press release announcing the filing of the lawsuit, plaintiffs' attorneys said in part:

RFRA originally protected all religious viewpoints and insured a high level of protection for peoples' free exercise of religion.  The 'fix,' however, stripped that protection based on a person's particular religious view, such as, opposition to same-sex marriage.  This pits some religions that the government protects against other religions that will suffer government punishment if they don't fall in line.  We believe this discrimination between religious views is unconstitutional...

Indianapolis Star reports on the lawsuit.

UPDATE: In January 2016 plaintiffs filed an amended complaint adding Bloomington and Columbus, Indiana as defendants.

Court Issues Preliminary Injunction Against School Show's Live Nativity Depiction

In Freedom From Religion Foundation v. Concord Community Schools, (ND IN, Dec. 2, 2015), an Indiana federal district court granted a preliminary injunction barring an Indiana school district from presenting its traditional live nativity scene as part of this year's school Christmas Spectacular show. The court said in part:

a reasonable observer would fairly believe that the portrayal of the living nativity scene, when viewed in the particular context, circumstances, and history of the Christmas Spectacular, conveys a message of endorsement of religion, or that a particular religious belief is favored or preferred.

The court held that the school's insertion, in response to the filing of this lawsuit, of short segments on Hanukkah and Kwanzaa did not cure the Establishment Clause problem:

the way in which Chanukah and Kwanzaa are being presented in the show in comparison to the Christmas portion in general and the nativity scene in particular actually serves to place greater emphasis on and suggest greater preference of the religious message conveyed by the nativity scene.

In its press release on the decision, FFRF says it continues to prepare for trial on the merits since the preliminary injunction applies only to this year's show.

UPDATE:  The Dec. 12 Goshen News reports that the school stayed in technical compliance with the preliminary injunction by featuring a static nativity scene using mannequins, in place of the enjoined live performance.