Pastor's Wife Sues Over Kansas Israel Anti-Boycott Law

The ACLU today filed suit in federal district court in Kansas on behalf of a Mennonite woman challenging a Kansas statute that allows the state to enter contracts with companies or individuals only if they certify that they are not currently engaged in a boycott of Israel.  The complaint (full text) in Koontz v. Watson, (D KA, filed 10/11/2017), explains that Esther Koontz, the wife of a Mennonite pastor, following the recommendation in a resolution passed by the Mennonite Church USA is engaged in a boycott of consumer goods and services offered by Israeli companies and international companies operating in Israeli settlements in the occupied Palestinian territories.  The Kansas State Department of Education refuses to sign a contract with Koontz for her to serve as a teacher trainer in its Math & Science Partnerships program because she refuses to sign a boycott certification.  The complaint alleges that this violates her free speech and associational rights, amounts to viewpoint discrimination, and violates the equal protection clause of the 14th Amendment. The ACLU has also submitted a Memorandum (full text) in support of Koontz's motion for a preliminary injunction.  ACLU issued a press release announcing the filing of the lawsuit.

Suit Challenges Scope of Religious Exemption From Vaccination Requirement

Sunday's Kansas City Star reports on a lawsuit filed recently by the grandparents of a 2-year old objecting on religious grounds to the vaccination of their grandson. While Kansas provides a religious exemption from the vaccination requirement, the complication here is that the toddler is in temporary custody of the Kansas Department for Children and Families, but has been placed in foster care with his grandparents.  This gives the state the right to decide on vaccination, even though the child's grandmother has filed a religious exemption statement with the school.  The suit claims that taking the decision away from the family is a violation of the right to privacy.  It also contends that the Kansas exemption statute is vague and imposes an unconstitutional religious test.  The statute requires a parent or guardian to certify "that the child is an adherent of a religious denomination whose religious teachings are opposed to such tests or inoculations."  Apparently the state requires the parent or guardian to name the specific religious denomination and its specific doctrine.  The grandparents say that it is impossible for a two year old child to be "an adherent of a religious denomination."

Fired Employee Loses Religious Discrimination Suit Against Kansas Secretary of State

According to the Topeka Capital-Journal,  a Kansas federal district court jury rejected a religious discrimination claim by a former employee in the business services division in the state Secretary of State's office.  Plaintiff Courtney Canfield claimed that assistant secretary of state Gary Laughlin had told Canfield's grandmother-- a long-time friend of Lauglin's-- that Canfield had been fired because she did not attended church. At trial, the secretary of state's office said it had fired Canfield for sporadic attendance, breaching office cellpohne policies and creating a distraction for other employees.

Kansas Court Says No Appeal On Vaccination Order For Children In State Custody

In an unpublished opinion, a Kansas state appeals court appears to have held that a mother who has religious objections to vaccination has no right to appeal a trial court order that her children, who have previously been placed in temporary custody of the state, receive physician-recommended vaccinations.  In In the Interest of M.H.D., K.S.D., and O.H.D., (KA App., July 14, 2017), the court held that while the mother was given a hearing on the issue at the trial court level, the trial court order entered more than 30 days after the children's placement does not fit within the category of orders over which Kansas statutes give the Court of Appeal appellate jurisdiction.

Court Rejects Challenge To State's Use of Religiously Affiliated Child Placement Agency

In In re R.M., (KS Ct. App., May 12, 2017), the Kansas Court of Appeals rejected an argument that the state violated the Establishment Clause by contracting with  Saint Francis Community Services, an Episcopalian organization, to provide childcare services on behalf of the state.  The issue was raised by a mother who was contesting the state's termination of her parental rights to her two children.  The court said in part:

Mother has shown no evidence that Saint Francis encouraged, let alone coerced, her children into participating in religious activities or conditioned their receipt of any benefits on such participation. None of the case plans or court orders contains any reference to religious acts or beliefs or requires Mother or her children to do anything of a religious nature. Mother has not shown anything of a religious nature in the homes her children have been placed in.

Cert. Denied In Kansas Science Curriculum Challenge

On Monday, the U.S. Supreme Court denied review in COPE v. Kansas State Board of Education, (Docket No. 16-229, cert. denied 11/14/2016). (Order List.)  In the case, the U.S. 10th Circuit Court of Appeals dismissed on standing grounds an Establishment Clause challenge to Kansas' curriculum standards for science instruction in grades K-12, saying that "COPE offers only threadbare assertions that the Standards intend to promote a non-religious worldview." (See prior posting.) Topeka Capital-Journal reports on the denial of certiorari.

No Police Liability For Telling Woman To Stop Praying During Investigation

In Sause v. Louisburg Police Department, 2016 U.S. Dist. LEXIS 80243 (D KA, June 17, 2016), a Kansas federal district court dismissed on qualified immunity grounds plaintiff's claim that her free exercise rights were infringed when a police officer investigating a noise complaint told plaintiff to stop praying while the officers were in the middle of talking with her in her apartment about the complaint. According to the court:

While Officer Stevans's instruction to Plaintiff to stop praying may have offended her, it does not constitute a burden on her ability to exercise her religion. Plaintiff fails to provide any allegations that would suggest Officer Stevans's actions coerced her into conduct contrary to her religious beliefs, or that he otherwise prevented her from practicing her religion.

10th Circuit: Challenge To Kansas School Science Standards Dismissed on Standing Grounds

In COPE v. Kansas State Board of Education, (10th Cir., April 19, 2016), the U.S. 10th Circuit Court of Appeals dismissed on standing grounds an Establishment Clause challenge to Kansas' curriculum standards for science instruction in grades K-12.  Plaintiffs claimed that the State Board’s adoption of the Standards communicated a religious message, and their implementation will result in anti-religious instruction.  The court said in part:

[T]he Standards do not condemn any or all religions and do not target religious believers for disfavored treatment. And COPE offers only threadbare assertions that the Standards intend to promote a non-religious worldview. Thus, COPE’s allegations regarding adoption amount to psychological consequences produced by observation of conduct with which it disagrees.... This injury does not suffice....

Kansas Passes Law Allowing Student Religious Groups To Limit Membership To Adherents

The Kansas legislature yesterday gave final passage to SB 175 (full text) that is designed to allow student religious groups at colleges and universities to restrict their leaders or their membership to those who share or comply with the organizations beliefs.  The bill provides in part:

No postsecondary educational institution may ... deny a religious student association any benefit available to any other student association ... based on such association's requirement that [its] leaders or members ...: (a) Adhere to the association's sincerely held religious beliefs; (b) comply with the association's sincerely held religious beliefs; (c) comply with the association's sincere religious standards of conduct; or (d) be committed to furthering the association's religious missions....

The bill gives a cause of action to any student group injured by a violation of this provision.  AP reports on the bill and some of the incidents leading up to it. It is expected that Gov. Sam Brownback will sign the bill into law.

Kansas Appeals Court Splits Evenly Over State Constitution's Protection of Abortion Rights

In Hodes & Nauser, MDs, P.A. v. Schmidt, (KA App., Jan. 22, 2016), the Kansas Court of Appeals sitting en banc split evenly, 7-7, on whether the Kansas state Constitution provides a right to abortion.  A decision for 6 judges, written by Judge Leben, held that:

sections 1 and 2 of the Kansas Constitution Bill of Rights provide the same protection for abortion rights as the Due Process Clause of the Fourteenth Amendment to the United States Constitution...

 Judge Atcheson, in a concurring opinion, also concluded that the state Constitution protects the right to abortion, but  through language § 1 of the Constitution "prohibiting undue government interference with those inalienable rights, including reproductive freedom, that compose self-determination."

Judge Malone writing a dissenting opinion on behalf of 7 judges rejected the assertion that the Kansas Constitution protects abortion rights, saying in part:

We conclude that the plain language of §§ 1 and 2 of the Kansas Constitution Bill of Rights is not similar enough to the language of the Fourteenth Amendment to find that the corresponding provisions must be applied in the same manner..... Simply put, there is nothing within the text or history of §§ 1 and 2 of the Kansas Constitution Bill of Rights to lead this court to conclude that these provisions were intended to guarantee a right to abortion.

The effect of the even split was to affirm the trial court's grant of a preliminary injunction preventing the Kansas Unborn Child Protection from Dismemberment Abortion Act from taking effect. AP reports on the decision, noting that it was released on the 43rd anniversary of the U.S. Supreme Court's Roe v. Wade decision.

Anti-Westboro Protest Group Found To Have Violated Ordinance Against Picketing of Religious Event

In Topeka, Kansas yesterday. a municipal court judge imposed a $10 fine and $150 in court costs on each of four members of the Journey 4 Justice motorcycle counter-protest group for their Sept. 12 protest outside the Westboro Baptist Church.  According to the Topeka Capital-Journal, the group which was formed in 2011 to counter-protest hate groups like the virulently anti-gay Westboro was found to have violated Topeka Municipal Code Sec. 9.45.140 which prohibits picketing a house of worship during an announced religious event carrying a banner, placard or sign.  The court ruled that "banners" include American flags that the protest group was carrying, and that the ordinance applies during announced hours of religious services, whether or not services were actually taking place.  Originally Topeka police merely asked the group to end their protest, but members of the group insisted that police issue a citation so that a court could clearly interpret the law.

Anti-Westboro Baptist Church Protesters Challenge City Ordinance Used Against Them

In Topeka, Kansas yesterday, Four members of the Journey 4 Justice motorcycle group pleaded not guilty in Topeka Municipal Court to the misdemeanor charge of "picketing of religious events" of the Westboro Baptist Church.  As reported by the Topeka Capital-Journal, the motorcycle group has placed themselves outside the Westboro Baptist Church for several years.  They use an American flag to shield passers-by from Westboro's well-known signs that are virulently anti-gay and which predict the country's doom.  Topeka's Municipal Code Sec. 9-45-140 bans "focused picketing" on the public street, sidewalk or other public space around a house of worship during a worship service or other religious event.  The ordinance defines "focused picketing" to include "walking in a repeated manner past or around a house of worship ... while carrying a banner, placard, or sign."  The motorcyclists want to challenge police interpretation of the ordinance. Police claim that an American flag is a "banner" under the law.  The cyclists also say that Westboro's closed service should not be included as a "worship service" under the law.  Their trial was set for December 7. The cyclists say if the judge agrees with the police, they will move their protest to private property across the street from the church.  Apparently the group is not currently represented by counsel in the case.

Kansas Federal District Court Implements Obergefell Holding

Even though the U.S. Supreme Court decided in the Obergefell case that same-sex marriages must be recognized, lower courts still need to tie up loose to make the ruling effective nationwide.  In Marie v. Mosier, (D. KA, Aug. 10, 2015), a Kansas federal district court issued a declaratory judgment that Kansas’ same-sex marriage laws (and related policies) violate the Constitution and thus are void. However in light of claims by Kansas officials that the state is voluntarily complying with the Obergefell holding, the court delayed issuing a permanent injunction to determine whether the issue is moot, saying:

In the Court’s view, the prudent course of action is to let defendants finish updating their policies and practices to conform to Obergefell’s new rule of constitutional law. The Court thus defers, for now, the portion of plaintiffs’ summary judgment motion seeking injunctive relief. Should subsequent events reveal that the Court’s hopefulness about Kansas officials’ pledge to comply with Obergefell is misplaced, plaintiffs may supplement their motion for summary judgment on their claims for injunctive relief...

SCOTUSblog discusses the opinion.

Kansas Governor Eliminates Anti-Discrimination Protection For LGBT State Employees

Yesterday Kansas Gov. Sam Brownback issued executive orders narrowing employment discrimination protections for state employees.  As reported by the Wichita Eagle and a press release from the governor's office, Brownback replaced former Gov. Kathleen Sebelius' employment practices order with a new one.  The new executive order eliminates the former ban on state employment discrimination on the basis of sexual orientation and gender identity, while continuing to ban various other types of discrimination.  According to the Governor:

This Executive Order ensures that state employees enjoy the same civil rights as all Kansans without creating additional ‘protected classes’ as the previous order did, Any such expansion of ‘protected classes’ should be done by the legislature and not through unilateral action.

Westboro Baptist Attempt To Intervene In Same-Sex Marriage Case Again Rejected

In Marie v. Moser, (D KA, Dec. 18, 2014), a Kansas federal district court for a second time (see prior posting) refused to allow Westboro Baptist Church to intervene as a party in a lawsuit challenging the Kansas ban on same-sex marriage. The court said that WBC's arguments were based on speculation about future possible claims by same-sex couples.  WBC was allowed to continue to file amicus briefs to assert arguments it would like the court to consider.

Court Dismisses Challenge By Theists To Kansas Science Standards

In COPE v. Kansas State Board of Education, (D KA, Dec. 2, 2014), a Kansas federal district court dismissed on 11th Amendment and standing grounds a challenge to the Kansas State Board of Education science Framework and Standards. Students, parents, taxpayers and a non-profit organization sued claiming that adoption of these guidelines "will cause Kansas public schools to establish and endorse a non-theistic religious worldview in violation of the Establishment, Free Exercise, and Speech Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment."  As further explained by the court:

Plaintiffs contend that the Standards ... use... deceptive methods to lead impressionable children to answer questions about the cause of life with only materialistic or atheistic answers.

In its 25-page discussion of standing, the court said in part:

The Court concludes that our Circuit, when confronted with plaintiffs’ standing argument in this case, would follow the reasoning used by the Seventh and District of Columbia Circuits and hold that plaintiffs lack standing to sue where the only injury alleged is based on a “message” of government endorsement of religion.

AP reports on the decision. COPE has links to pleadings in the case.

Kansas Same-Sex Marriage Ruling Generates Flurry of Appeals

The issuance by a Kansas federal district court on Nov. 5 in Marie v. Moser of a preliminary injunction against Kansas' ban on same-sex marriages has generated a flurry of appeals. That preliminary injunction was to take effect today. (See prior posting.)

On Nov. 6, Kansas filed an emergency motion with the 10th Circuit to stay the district court's injunction to give Kansas time to seek an initial appeal to the 10th Circuit en banc.  Three-judge panels of the 10th Circuit have already ruled against same-sex marriage bans in Utah and Oklahoma. (Kansas AG's statement.)  On Nov. 7, the 10th Circuit denied the motion for a stay. Yesterday, Kansas filed a stay application (full text) with U.S. Supreme Court Justice Sonia Sotomayor, and Justice Sotomayor issued an order (full text) staying the preliminary injunction until today and ordering plaintiffs to file a response by this afternoon.

Meanwhile, in a Nov. 7 opinion (full text), the district court denied the motion by Westboro Baptist Church to intervene in the appeal so that it can raise religiously-based arguments against same-sex marriage. (See prior posting.) WBC immediately filed a Notice of Appeal with the 10th Circuit. Yesterday's Topeka Capital-Journal reports on developments.

Federal District Court Issues Preliminary Injunction Against Kansas Same-Sex Marriage Ban

In Marie v. Moser, (D KS, Nov. 4, 2014), a Kansas federal district court issued a preliminary injunction barring Kansas officials from enforcing any law that prohibits the issuance of marriage licenses to same-sex couples. However, because of lack of standing, the injunction does not extend to Kansas provisions that prohibit the recognition of same-sex marriages performed elsewhere. The court stayed its injunction until Nov. 11 to give defendants time to appeal to the 10th Circuit. The 10th Circuit has already struck down same-sex marriage bans in Utah and Oklahoma. The Topeka Capital-Journal reports on the decision.

Westboro Baptist Church Seeks To Intervene In Kansas Same-Sex Marriage Case

As reported by the Washington Blade, yesterday the virulently anti-gay Kansas-based Westboro Baptist Church filed a motion (full text) to intervene as a defendant in Marie v. Moser, a Kansas federal court lawsuit challenging Kansas' ban on same-sex marriages. In its 26-page motion filled with religious references and quotations, the church argues:

WBC desires to assert that it is constitutional folly to suggest that a sinful-behavior-based union should be a union that is afforded civil rights and granted the imprimatur of respectability by a license from the government; and that in doing so the government violates its duty of religious neutrality; and puts itself in the position of imposing sin on the citizens, to the great detriment and harm of the health and welfare of the citizenry....

The Kansas Attorney General is unable to adequately represent WBC because to do so would cause the Attorney General to assert religious viewpoints and constitutionally protected religious rights, which is arguably contrary to the duty of the government to remain neutral on matters of religion, and would constitute a breach of the separation of church and state doctrine.

Same-Sex Marriage Developments In Kansas, West Virginia, Alaska

Developments relating to same-sex marriages have been moving rapidly in Kansas.  Last Wednesday, Chief Judge Kevin Moriarty of the state's 10th judicial district (Johnson County) issued Administrative Order No. 14-11 (Oct. 8, 2014), instructing the clerk of the court, as well as all deputy clerks, to issue marriage licenses to same-sex couples. However, on Friday (Oct. 10) Kansas Attorney General Derek Schmidt filed a petition (full text) for issuance of a writ of mandamus to stop the Johnson County order from taking effect, and asking the Kansas Supreme Court to decide the issue. (Press release; Memorandum in Support of Petition). Before the state Supreme Court could act, one same-sex couple in Johnson County were married. (Kansas Equality Coalition statement.) However a few hours later, in State of Kansas v. Moriarty, (KA Sup. Ct., Oct. 10, 2014), the state Supreme Court issued a stay of Judge Moriary's order "in the interest of establishing statewide consistency." It set oral arguments for Nov. 6, but said that applications for same-sex marriage licenses may continue to be accepted. As pointed out by KCTV 5 News, the November hearing date is two days after the general election.

Meanwhile in West Virginia, on Thursday (Oct. 9) state Attorney General Patrick Morrisey issued a statement (full text) saying in part:

In the upcoming days, we will now seek to bring to a close the pending litigation over West Virginia’s marriage laws, consistent with the Fourth Circuit’s now-binding decision.... [However] only the State Registrar may alter state marriage forms, and the Secretary of State’s Office has authority over marriage celebrants and their ability to solemnize marriages.  While we will take steps to seek to end the litigation, the conclusion of the lawsuit cannot and will not alone effectuate the Fourth Circuit’s mandate.

AP reports that after the Attorney General's statement, State Registrar Gary Thompson sent a letter to clerks in all 55 West Virginia counties setting out new protocols for marriage licenses allowing for same-sex marriages. At least one couple was issued a license on Friday.

And in Alaska yesterday, a federal court declared its ban on same-sex marriages to be in violation of the 14th Amendment's due process and equal protection clauses.  As reported by Think Progress, the decision in Hamby v. Parnell, (D AK, Oct. 12, 2014), came just two days after the court heard oral arguments in the case. However, according to KTUU News, Alaska Governor Sean Parnell issued a statement Sunday saying that he would appeal the decision.