Atheist Firefighter's Hostile Work Environment Claim Can Proceed

In Queen v. City of Bowling Green, Kentucky, (6th Cir., April 22, 2020), the U.S. 6th Circuit Court of Appeals affirmed a Kentucky district court's denial of defendants' qualified immunity in a suit by a former firefighter who was harassed by his co-workers and supervisors because he is an atheist. The court held that plaintiff's claim of  hostile work environment based on religion is not covered by Kentucky’s Claims Against Local Governments Act. It also held that plaintiff's supervisor is not entitled to qualified immunity on a retaliation claim against him. Friendly Atheist blog discusses the case at greater length.

Another Suit Challenges Kentucky Ban On In-Person Church Services

A class-action lawsuit was filed last week in a Kentucky federal district court by three individuals who attended in-person Easter Sunday services at Maryville Baptist Church in Hillview, Kentucky. The in-person services violated Governor Andy Beshear's COVID-19 ban on mass gatherings.  State troopers placed notices on all cars in the church parking lot imposing a 14-day quarantine on those associated with the vehicle attending the service and others in their household. The complaint (full text) in Roberts v. Neace, (ED KY, filed 4/14/2020) alleges a violation of plaintiffs' free exercise rights, alleging in part:

Defendants’ prohibition of any in person church services, in the name of fighting Covid-19, is not generally applicable. There are numerous exceptions to the March 19, 2020 Order, such as an exception for factories, or attending establishments like shopping malls, where far more people come into closer contact with less oversight.

The suit also challenges the governor's travel ban. WTVQ News reports on the lawsuit. A different Kentucky federal district court has refused to restrain enforcement of the ban on mass gatherings. (See prior posting.)

Church's Challenge To Kentucky Ban on Mass Gatherings Is Rejected

In Maryville Baptist Church, Inc. v. Beshear, (WD KY, April 18, 2020), a Kentucky federal district court refused a request by a church and its pastor to issue a temporary restraining order against enforcing Governor Andy Beshear's ban on mass gatherings. The ban includes in-person religious services. The court said in part:

Plaintiffs seek to compare in-person attendance at church services with presence at a liquor store or “supercenter store[].” The latter, however, is a singular and transitory experience: individuals enter the store at various times to purchase various items; they move around the store individually—subject to strict social-distancing guidelines...—and they leave when they have achieved their purpose. Plaintiffs’ desired church service, in contrast, is by design a communal experience, one for which a large group of individuals come together at the same time in the same place for the same purpose....

Similarly unpersuasive is Plaintiffs’ contention that the orders violate their right to freely exercise their religion by discriminating against religious conduct. Again, the order temporarily prohibits “[a]ll mass gatherings,” not merely religious gatherings....  Religious expression is not singled out.

Louisville Courier-Journal reports on the decision.

Church Challenges To COVID-19 Orders Proliferate

Suits challenging COVID-19 orders that ban group church services are proliferating.  Sacramento Bee reported yesterday:

A group of Inland Empire pastors is suing California Gov. Gavin Newsom in federal court, alleging that his administration is “criminalizing the free exercise of religion” with stay-at-home directives that have prevented people from attending church services....

One of the plaintiffs is Dean Moffatt, a Riverside County pastor who was fined $1,000 for holding a Palm Sunday church service, according to the complaint filed.

KRQE News reported yesterday:

An Albuquerque [New Mexico] megachurch is now suing the state claiming the governor violated the first amendment that protects the freedom of religion. Specifically, it’s focused on the church’s Easter Sunday service and the number of people it takes to live stream to its congregation....

[Pastor Steve] Smothermon of Legacy Church filed suit requesting a temporary restraining order but also a permanent injunction affording them the same restrictions as local essential retailers, limiting capacity to 20%. Smothermon says to hold yesterday’s service they would have a worship team, a band, the pastor and technical staff. A group of about 30 people. Therefore, conducting the live-streamed services would immediately violate the governor’s order to limit gatherings to no more than five people.

WAVE News reported yesterday:

 A Kentucky church whose members defied Gov. Andy Beshear’s executive order not to gather in groups now plans to file a federal lawsuit claiming its constitutional rights were violated.

The Maryville Baptist Church is at the center of the debate, after about 50 members attended an Easter service in person.

Kentucky State Police troopers were ordered to take down the license plates of those who attended, threatening to quarantine them.

The church’s attorney, Matthew Staver, said the lawsuit is because the church was targeted.

Court Allows Drive-In Church Services For Easter In Kentucky; In-Person Attendees Face Quarantine

In On Fire Christian Center, Inc. v. Fischer, (WD KY, April 11. 2020), a Kentucky federal district court issued a temporary restraining order barring the city of Louisville from enforcing a COVID-19 related ban on drive-in Easter services that were planned by a Louisville church. The court began its opinion as follows:

On Holy Thursday, an American mayor criminalized the communal celebration of Easter.

That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion. But two days ago, citing the need for social distancing during the current pandemic, Louisville’s Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship – and even though it’s Easter.

The Mayor’s decision is stunning.

And it is, “beyond all reason,” unconstitutional.

The court explained in part:

Here, Louisville has targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs – including, for example, drive-through liquor stores. Moreover, Louisville has not prohibited parking in parking lots more broadly – including, again, the parking lots of liquor stores. When Louisville prohibits religious activity while permitting non-religious activities, its choice “must undergo the most rigorous of scrutiny.”That scrutiny requires Louisville to prove its interest is “compelling” and its regulation is “narrowly tailored to advance that interest.”

The day before the decision was issued, Kentucky's attorney general issued a Statement (full text) saying in part:

We are aware that some Kentucky jurisdictions are discussing a prohibition of drive-in church services for the upcoming Easter holiday.  As long as religious groups and worshippers are complying with current Centers for Disease Control (“CDC”) recommendations for social distancing to slow the spread of COVID-19, we see no problem with these drive-in services occurring.

Religious organizations should not be treated any differently than other entities that are simultaneously conducting drive-through operations, while also abiding by social distancing policies....

This leniency does not, however, extend to in-person church services. As reported by WHAS News, Kentucky's governor says that anyone attending mass gatherings, including church services, this weekend, will be required to be quarantined for 14 days. Gov. Andy Beshear said the state record license plates those attending such gatherings and will give the information to local health departments who will then order quarantines.

UPDATE: On April 21, the Louisville Courier Journal reported:

On Fire Christian Church has reached an agreement with Louisville Mayor Greg Fischer and city officials to continue to hold drive-in services while abiding by social distancing guidelines set forth by the Centers for Disease Control and Prevention.

Some Louisville Religious Leaders Question Governor's Call For Halt To Services To Combat Coronavirus

In order to slow the spread of COVID-19, officials in various parts of the United States, as well as in a number of other countries, have encouraged or required cancellation of gatherings of large numbers of persons.  These have often specifically included a call for cancellation of religious services.  For the most part, churches and synagogues have cooperated with these government requests. However, the reaction yesterday of some religious leaders in Louisville, Kentucky to a request (full text) by Governor Andy Beshear raises in a new context a possible clash between government mandated health measures and religious rights.  The Louisville Courier Journal reports:

... [T]he request has caused confusion for congregations citywide, with some seeing it as an affront to their religions.

"Places that at one time seemed safe and sacred are now being called out as viral threats," the Interdenominational Ministerial Coalition said in a statement Wednesday. "The sanctity of church is needed during this uncertain time."....

The Rev. Stephen Smith adamantly said Portland Memorial Missionary Baptist Church will not cancel services for its 800 members. "You're not closing grocery stores, you're not closing gas stations, so no — we're not closing anything," Smith said.... 

"If we tried to shut the [Lenten] fish fry down we'd have a protest in the street," Smith said. "These people are going to come and get their fish; they're not thinking about a virus."...

... [T]he Archdiocese of Louisville.... issued a statement saying that it would not call for a cancellation of daily or weekend Masses.

"The Sunday celebration of the Eucharist is at the center of the life of the Church," the statement read. "Perhaps especially in difficult times, liturgical gatherings are a source of comfort and hope for the faithful, as well as an opportunity to offer our prayers to God for those who are suffering or who cannot be with us."

"At the same time, it is important – especially for those who are ill, feel vulnerable, or feel afraid – to be able to exercise individual discretion in light of this situation."

Justice Department Sides With Wedding Photographer In District Court Case

The Department of Justice announced yesterday that it has filed a Statement of Interest (full text) in Chelsey Nelson Photography, LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 2/27/20).  As previously reported, in the case the owner of a wedding photography business seeks a preliminary injunction to prevent enforcement of Louisville's public accommodation ordinance against her. Plaintiff "only accepts requests for services which are consistent with her editorial, artistic, and religious judgment."  This precludes her from providing photography and social media services for same-sex weddings. DOJ sides with the photographer, arguing in part:

Most commercial transactions will not involve requiring an unwilling speaker to participate in someone else’s expressive activity. But where public accommodations laws do intrude on expression in this way, they are subject to heightened scrutiny....

Photography—and particularly the bespoke wedding photography in which Ms. Nelson engages—is inherently expressive.... By ... compelling her to engage in expression promoting and celebrating a ceremony in violation of her conscience, Defendants infringe upon the fundamental “principle of autonomy to control one’s own speech.”

... That is not to say that every application of a public accommodations law to protected expression will violate the Constitution. In particular, laws targeting race-based discrimination may survive heightened First Amendment scrutiny....  The Supreme Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest.

Disabled Veteran Sues Over Personalized License Plate

A lawsuit was filed Monday in a Kentucky federal district court by Shaun DeWaters, a disabled Marine Corps combat veteran, against the Kentucky Transportation Cabinet. As reported by the Lexington Herald-Leader, the Kentucky Division of Motor Vehicle Licensing informed DeWaters that the personalized license plate which he has had for more than 12 years no longer complies with Kentucky law. According to the state, the plate which reads "INFDL" violates the ban on personalized plates that discriminate, represent a political belief or promote a specific faith, religion or anti-religion.  DeWaters says that troops in Iraq and Afghanistan took the label "Infidel" as a badge of honor after the enemy used the label for American troops. The lawsuit alleges that the ban on DeWaters license plate that was invoked when DeWaters attempted to transfer it to a new vehicle amounts to an infringement of 1st Amendment free speech rights.

Wedding Photographer Sues Over City's Public Accommodation Ordinance

Suit was filed in a Kentucky federal district court this week raising a pre-enforcement challenge to the application of Louisville, Kentucky's public accommodation ordinance to plaintiff's wedding photography business. The complaint (full text) in Chelsea Nelson Photography LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 11/19/2019) says that plaintiff "only accepts requests for services which are consistent with her editorial, artistic, and religious judgment."  This precludes her from providing photography and social media services for same-sex weddings. The complaint alleges that enforcement of the ordinance against plaintiff would violate her free speech, free exercise and due process rights. ADF issued a press release announcing the filing of the lawsuit.

State Must Issue "IM GOD" Vanity License Plate

In Hart v. Thomas, (ED KY, Nov. 13, 2019), a Kentucky federal district court held that a car owner's First Amendment rights were infringed when the state refused to issue him a vanity licence plate reading "IM GOD".  The court said in part:

...[A]voidance of controversy is a valid ground for restricting speech in a nonpublic forum.... However, the Transportation Cabinet has been so inconsistent in its application of § 186.174 that it has ceased to be “consistent with [Kentucky’s] legitimate government interest” in any way. If the Transportation Cabinet genuinely wants to avoid controversy on Kentucky’s highways by preventing “promotion of any specific faith, religion, or anti-religion” from appearing on vanity plates, then it should have denied “IM4GOD”, “ASKGOD”, GR8GOD”, “LUVGOD”. But it did not.... Instead, the Transportation Cabinet has approved multiple vanity plates featuring the word “god”.... This suggests that the law as applied to Mr. Hart is neither reasonable nor viewpoint neutral. To allow such plates as “IM4GOD” and “LUVGOD” but reject “IM GOD” belies viewpoint neutrality.

FFRF issued a press release announcing the decision.

Supreme Court Denies Review Of Discovery Directed To Church

The U.S. Supreme Court today denied certiorari in Presbyterian Church v. Edwards, (Docket No. 18-1441, cert. denied 10/7/2019). In the case the Kentucky Supreme Court allowed discovery to proceed in a defamation suit against the Presbyterian Church to the extent necessary to determine if the church is entitled to ecclesiastical immunity. (See prior posting.) The Supreme Court in June denied a stay in the case.

Kentucky Supreme Court Hears Oral Arguments On Refusal To Print Pride Festival T-Shirts

On Friday, the Kentucky Supreme Court heard oral arguments (video of full arguments) in Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals.  In the case, the Kentucky Court of Appeals concluded that a business which prints customized T-shirts was not in violation of a county's public accommodation law when it refused because of religious beliefs to print T-shirts for a local LGBT Pride Festival. (See prior posting.) WFPL News reports on yesterday's oral arguments. [Thanks to Tom Rutledge for the lead.]

6th Circuit Decides 2 Cases Growing Out of Kim Davis' Marriage License Refusals

In Ermold v. Davis, (6th Cir., Aug. 23, 2019), the U.S. 6th Circuit Court of Appeals held that sovereign immunity protects former Rowan County, Kentucky Clerk Kim Davis, and her successor in office, from suit for damages in their official capacity. However, the court went on, Davis may still be sued in her individual capacity, and she is not entitled to qualified immunity in that suit. The case grew out of the widely-publicized refusal of Davis to issue marriage licenses to same-sex couples, even after the U.S. Supreme Court's Obergefell decision. (See prior posting.) Two same-sex couples who were denied marriage licenses sued.

The 3-judge panel split 2-1 in their analysis of why Davis was not entitled to qualified immunity.  Judge Griffin, joined by Judge White, held that Obergefell clearly established a right for same-sex marriage and eliminated the need to use a tiers-of-scrutiny analysis in cases such as this.  Judge Bush held that a tiers-of-scrutiny analysis should be used, but that Davis' conduct does not survive even rational basis review.

In a related case, Miller v. Caudill, (6th Cir., Aug. 23, 2019), the U.S. 6th Circuit Court of Appeals affirmed the award of $222,695 in attorneys' fees to several same-sex couples who had obtained a preliminary injunction against Davis' policy, but litigated no further after Davis' deputy clerks agreed to issue the licenses.  The 6th Circuit concluded that plaintiffs qualified as a "prevailing party" entitled to attorneys' fees under 42 USC §1988, and that these fees should be paid by the state of Kentucky rather than Rowan County.  The Court said in part:

A win is a win—regardless of whether the winner runs up the score. To prevail, then, plaintiffs didn’t need to obtain duplicative relief in every form that they originally sought it. They wanted the opportunity to obtain marriage licenses in Rowan County, and the preliminary injunction gave them exactly that.

Louisville Courier Journal reports on this decision. [Thanks to Tom Rutledge for the lead.]

Plaintiff Challenging Vaccination Requirements Contracts Chicken Pox

A high school senior who recently lost his attempt to enjoin enforcement of steps taken by a local Kentucky health department to control an outbreak of chicken pox at a Catholic high school has now come down with chicken pox, according to the Cincinnati Enquirer. Jerome Kunkel, who objects on religious grounds to the vaccine because it was originally produced using cells from an aborted fetus, had a religious exemption from vaccination requirements, as did most of his classmates at a conservative Catholic high school. Kunkel's lawyer said that about half of his clients have contracted the disease. He told them that contracting chicken pox, which creates immunity, was the quickest way to resolve their dispute with the county's extra-curricular and school attendance bans on student who are not immune.

6th Circuit Upholds Kentucky's Abortion Informed Consent Law

In EMW Surgical Women's Center, P.S.C. v. Beshear, (6th Cir., April 4, 2019), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected a 1st Amendment free speech challenge to Kentucky's Ultrasound Informed Consent Law. According to the court:

... Kentucky directs a doctor, before performing an abortion, to auscultate (or make audible) the fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient.

The majority concluded:

H.B. 2—The Ultrasound Informed Consent Act—is an informed-consent statute like the statute in Casey because it provides truthful, non-misleading, and relevant information related to an abortion. The statute incidentally burdens speech only as part of Kentucky’s regulation of professional conduct. Therefore, H.B. 2 is not subject to any heightened scrutiny with respect to the doctors’ First Amendment rights, and it does not violate those rights....

Judge Donald dissented, saying in part:

The Commonwealth has coopted physicians’ examining tables, their probing instruments, and their voices in order to espouse a political message, without regard to the health of the patient or the judgment of the physician....  [T]he majority 1) conflates the undue burden and First Amendment standards, while misreading the explicit language of Casey; 2) ignores the national standards of medical care; and 3) disregards the evidence showing that H.B. 2 is not consistent with the medical practice of informed consent.

[Thanks to Tom Rutledge for the lead.]

Court Refuses To Enjoin Activity Ban Imposed On Non-Vaccinated Students

In Kunkel v. NKY Independent Health Department, (KY Cir. Ct., April 2, 2019), a Kentucky state trial court refused to grant a preliminary injunction, thereby upholding the steps taken by a local health department to control an outbreak of chicken pox at a Catholic high school.  The health department first imposed an extra-curricular activity ban, and subsequently an attendance ban for students who were not vaccinated or otherwise immune.  Jerome Kunkel objected on religious grounds to being vaccinated for chicken pox because the vaccine originated from aborted fetal cells. The court noted that the state is not requiring Kunkel to take the vaccination, but is merely excluding him from school as a means of controlling the outbreak. Fox 19 News reports on the decision.

UPDATE: On June 26, 2019, according to the NKY Health Department, the Kentucky Court of Appeals upheld the trial court's decision.

Kim Davis Loses Re-election Bid

According to the Lexington Herald-Leader, in Rowan County, Kentucky on Tuesday, county clerk Kim Davis lost her re-election bid by some 650 votes. Davis garnered national attention in 2015 by her adamant refusal to sign marriage licenses for same-sex couples. (See prior posting).

Kentucky Supreme Court Allows Limited Discovery In Suit Against Church

In Presbyterian Church (U.S..) v. Edwards, (KY Sup. Ct., Sept. 27, 2018), the Kentucky Supreme Court in a 4-3 decision affirmed a Court of Appeals decision limiting discovery in a defamation suit against the Presbyterian Church to that necessary to determine if the church is entitled to ecclesiastical immunity.  The issue arose out of a suit by Rev. Eric Hoey who claims that the church defamed him by releasing to Presbyterian news agencies a statement that he had been terminated for committing ethical violations. A dissent written by Justice Venters argued:

To establish his claim of defamation, Hoey must prove that the Church officials were lying when they said that his conduct violated the Church’s ethical rules for its ministers....

It is immediately apparent from the face of Hoey’s Complaint that his claim can be sustained only by second-guessing the decision of the Church’s governing body that Hoey violated the Church’s ethical policies. The only way that Hoey can show that Church officials falsely stated that he violated the Ethical Policy contained in the Book of Order is to prove that he did not violate that policy.

I respectfully submit that only the Church can make that determination and the Government, through its courts, legislature, or executive agencies, cannot supersede that decision.

Atheist Firefighter Can Move Ahead With Hostile Work Environment Claim

In Queen v. City of Bowling Green, (WD KY, July 20, 2018), a Kentucky federal district court allowed an atheist firefighter to move ahead with his claim of hostile work environment based on religion. The court, analyzing his claim under the Kentucky Civil Rights Act, said in part:

Defendants argue that Queen cannot prove the religious harassment he  experienced was unwanted. Rather, Defendants contend that jokes,  pranks, and teasing are all part of the fraternal environment at the Fire Department that Queen enjoyed and participated in.  However, since the Defendants are  moving  for  summary  judgment, the Court must consider the facts in a light favorable to Queen.  According to Queen, none of the harassment he experienced was welcomed.  As he tells it, he was interrogated about his religion by coworkers and forced against his will to participate in Bible studies.  Ultimately, he claims that he was threatened and physically assaulted.  For this reason, there is enough evidence for a reasonable jury to conclude that the harassment Queen experienced was unwanted.

Friendly Atheist blog has more on the decision.

Refusal of "IM GOD" License Plate Can Be Challenged In Federal Court

In Hart v. Thomas, (ED KY, March 30, 2018), a Kentucky federal district court rejected an 11th Amendment sovereign immunity defense raised by the Secretary of the Kentucky Transportation Cabinet in a suit over an application for a personalized license plate.  Plaintiff Bennie Hart had applied for a license plate reading "IM GOD", to reflect his philosophy about religion.  Kentucky refused to issue the plate on the ground that it is offensive to good taste.  Hart sued contending that his First Amendment free speech rights were infringed when his application was denied. Friendly Atheist blog has more on the decision.