Pregnancy Resource Center Sues Massachusetts Officials Over Opposition Campaign

Suit was filed last week in a Massachusetts federal district court by Your Options Medical Center, an anti-abortion pregnancy resource center, against Massachusetts officials and an abortion rights foundation, alleging deprivation of free speech, free exercise and equal protection rights. The complaint (full text) in A Woman's Concern v. Healy, (D MA, filed 8/19/2024), alleges in part:

This case is necessitated by an overt viewpoint-based campaign of harassment, suppression, and threats against YOM and other PRCs. Directed by Governor Healey and the other Defendants, this campaign involves selective law enforcement prosecution, public threats, and even a state-sponsored advertising campaign with a singular goal – to deprive YOM, and groups like it, of their First Amendment rights to voice freely their religious and political viewpoints regarding the sanctity of human life in the context of the highly controversial issue of abortion. 

Defendants’ retaliation and selective-enforcement campaign accuses YOM and other PRCs of being a public health threat, of carrying out false and misleading advertising, and of other falsehoods, while actively urging citizens to report PRCs to State law enforcement....

It is well-settled that viewpoint discrimination applied through threats of legal sanctions and other means of coercion and intimidation violates the United States Constitution where, as here, such measures chill protected First Amendment activities. That very kind of selective censorship scheme is evidenced here. Moreover, the threats in this case were targeted explicitly against the religious speech of PRCs in violation of the Free Exercise Clause.

Catholic News Agency reports on the lawsuit.

1st Circuit: Satanic Temple Loses Bid to Deliver City Council Invocation

In The Satanic Temple, Inc. v. City of Boston, (1st Cir., Aug. 6, 2024), the U.S. 1st Circuit Court of Appeals rejected arguments that the failure to invite Satanic Temple to deliver an invocation at a Boston City Council meeting violated the 1st Amendment's Establishment Clause and the free exercise clause of the Massachusetts Constitution. Individual members of Council invite invocation speakers, without any guidelines as to selection. They choose speakers based on personal relations or based on the work the speaker does in the member's district or with the member's constituents. The court said in part:

TST has not shown that any of the Boston City Councilors have chosen invocation speakers based on the Councilors' own religious preferences or biases or barred potential speakers from delivering invocations that oppose the Councilors' religious beliefs.  The record shows rather that speakers were invited based on their contributions to the Councilors' districts and to the Boston community....

The record shows that there are many neutral, non-discriminatory reasons why TST has not been invited to give an invocation, including the following.  TST does not claim to have had a personal or working relationship with any Councilor on the basis of work it has done to benefit Boston communities. ...

Chief Judge Barron filed a concurring opinion, saying in part:

The City starkly sets forth the argument that causes me concern in its brief to us on appeal.  It contends -- seemingly unabashedly -- that the Establishment Clause permits City Councilors to choose invocation speakers based on how likely the selection is to earn them votes at the ballot box from certain religious communities.... 

I suppose the City is right that using invocations to attract political support from certain religious communities does not constitute invidious religious discrimination.  But I am dubious that the Establishment Clause blesses the practice that the City describes....

1st Circuit Remands Covid Vaccine Religious Exemption Case

In Brox v. Woods Hole, Martha's Vineyard and Nantucket Steamship Authority, (1st Cir., Oct. 6, 2023), the U.S. 1st Circuit Court of Appeal affirmed in part and vacated in part a trial court's refusal to require that plaintiffs be given a religious exemption from a state agency's Covid vaccine mandate. The court said in part:

[T]he appellants argue that the Policy, as administered, provides medical exemptions that permit unvaccinated employees to work "in close contact with colleagues, despite the purported direct threat . . . [their] unvaccinated status poses to them" but not religious exemptions that would permit unvaccinated employees to do the same even though their unvaccinated status poses no greater threat. And, according to the appellants, the Policy, as administered, is therefore not generally applicable -- and thus is subject to strict scrutiny -- because it "prohibits religious conduct while permitting secular conduct that undermines the government's asserted interests in a similar way"....

The appellees do argue that the Policy is generally applicable -- and so not subject to strict scrutiny -- for reasons having to do with the differing statutory liability that the Authority would face in denying requests for exemption that are medically rather than religiously based. The appellees assert in that regard that an employer may show that an accommodation for religious practice would constitute an "undue hardship" under Title VII of the Civil Rights Act of 1964 ... more easily than an employer may show that an accommodation for a disability would constitute an undue hardship under the Americans with Disabilities Act.... 

But even if we were to accept the appellees' contention about the greater leeway that an employer has under Title VII,.., the appellees do not develop any argument as to why we must conclude that, as a matter of law, the greater federal statutory liability that an employer faces for denying a medical exemption from a COVID-19 vaccine mandate than for denying a religious exemption from one suffices in and of itself to show that, for free exercise purposes, the former exemption may be granted and the latter exemption may be denied to employees who pose comparable risks of spreading the virus without thereby rendering the mandate not generally applicable and so subject to strict scrutiny....

We thus do not see how we may rely on this ground to affirm the District Court's "likelihood of success" ruling as to the appellants' free exercise claim....

Thus, we vacate the District Court's ruling with respect to its denial of the requested injunctive relief on the appellants' free exercise claim. We leave it to the parties and to the District Court on remand, therefore, to consider the appellants' request for that relief under the applicable legal framework that we have set forth....

Church Member's Defamation Suit Dismissed on Church Autonomy Grounds

In David v. South Congregational Church, (MA Super. Ct., Sept. 1, 2023), a Massachusetts trial court dismissed on church autonomy grounds a defamation suit against a Church, its Pastor and its Moderator brought by a Church member who was removed from the Church's Leadership, Finance and Investment Committees.  Plaintiff, a financial advisor, claims that he was inaccurately charged with unethical conduct in handling the funds of another church member. He seeks damages and other remedial action, including reinstatement on church committees. The court said in part:

... [T]here is no evidence that the defendant Moderator Figueroa's email to six Church leaders advising of the plaintiff's removal from the three Church leadership committees was ever communicated or published by the defendant Church officials beyond those leadership officials.... The sole disciplinary action taken by the church defendants was the plaintiff's removal from Church committees and positions of [Church] leadership.... Plaintiff's claimed defamation damages ... are necessarily limited exclusively to his reputation amongst the internal Church leadership.

But even limiting the scope of plaintiff's tort damage claim will not save his cause of action against the defendant Church, its Pastor and Moderator. A jury ... may not be permitted to second-guess church officials' and require them to pay damages because the jury disagrees with internal church discipline decisions...

The plaintiff is improperly asking this court to interject itself into-- and moreover reverse-- the internal disciplinary action imposed by the Church Pastor and Moderator upon another Chruch member.

[Thanks to John Egan for the lead.]

Catholic Couple Sues Foster Care Agency For Religious Discrimination [Revised]

 A Catholic couple has filed suit in a Massachusetts federal district court against the Massachusetts Department of Children and Families claiming free exercise and free speech violations. Plaintiffs were denied a foster care license because they would not be affirming to a child who identified as LGBTQIA.  The complaint (full text) in Burke v. Walsh, (D MA, filed 8/8/2023), alleges in part:

As faithful Catholics, the Burkes believe that all children should be loved and supported, and they would never reject a child placed in their home. They also believe that children should not undergo procedures that attempt to change their God-given sex, and they uphold Catholic beliefs about marriage and sexuality....

In effect, DCF has interpreted its regulations, which require foster families to “support[] and respect[] a child’s sexual orientation or gender identity,” 110 CMR 7.104(1)(d), as an absolute bar for Catholics who agree with the Church’s teaching on sex, marriage, and gender.

Becket issued a press release announcing the filing of the lawsuit. 

[Note-- this post was erroneously published previously with a title but no text.]

7th Grader Sues Over School's Hate Speech Dress Code

Suit was filed yesterday in a Massachusetts federal district court challenging the Middleborough school district's Dress Code which provides:

Clothing must not state, imply, or depict hate speech or imagery that target groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.

The complaint (full text) in Morrison v. Town of Middleborough, (ED MA, filed 5/17/2023), alleges that a 7th-grader's free speech rights were violated when he was not permitted to attend classes wearing a T-shirt carrying the message, "There are only two genders". Two weeks later he came to school wearing a shirt with the message, "There are censored genders". He was also barred from wearing this shirt.  The complaint alleges in part:

101. As Defendants interpret their Speech Policy, some viewpoints on the topic of “gender identity or expression” are permitted while some viewpoints on the same topic are prohibited. In particular, speech expressing the viewpoint that there are only two genders is prohibited, while speech expressing the viewpoint that gender is fluid and is on a spectrum is permitted....

135. Defendants’ censorship of Liam’s shirts while permitting shirts and other apparel with different messages on related topics is viewpoint discrimination, which is unconstitutional in any type of forum....

153. The Due Process Clause of the Fourteenth Amendment prohibits the government from censoring speech pursuant to vague standards that grant enforcement officials unbridled discretion.

154. The arbitrary determination by school officials of what is and is not “hate speech,” what speech “targets” a specific group, or what speech is “unacceptable to community standards” violates this norm.

ADF issued a press release announcing the filing of the lawsuit.

Massachusetts Supreme Court: Church May Relocate Cremated Remains Over Objection of Families

In Church of the Holy Spirit of Wayland v. Heinrich, (MA Sup. Jud. Ct., March 14, 202), the Massachusetts Supreme Judicial Court rejected claims by families attempting to prevent the disinterment and relocation of cremated remains sought by a church in order to facilitate the sale of its churchyard property. The court said in part:

This case concerns the scope of rights conveyed by a set of burial certificates, as sold by a church to its parishioners. After dwindling membership compelled the Church of the Holy Spirit of Wayland ... to close and sell its property, do the certificates permit the church to disinter and relocate the cremated remains buried on that property despite the objections of the decedents' families?

Although we acknowledge the sensitive -- even sacred -- nature of the subject matter of this dispute, we conclude that the burial certificates' unambiguous language permits the disinterment and that no common-law right held by the families prevents it.

Massachusetts Supreme Judicial Court Says No State Constitutional Right to Physician Assisted Suicide

In Kligler v. Attorney General, (MA Sup. Jud. Ct., Dec. 19, 2022), the Massachusetts Supreme Judicial Court held that the Massachusetts state constitution does not protect a right to physician-assisted suicide.  The court said in part:

[G]iven our long-standing opposition to suicide in all its forms, and the absence of modern precedent supporting an affirmative right to medical intervention that causes death, we cannot conclude that physician-assisted suicide ranks among those fundamental rights protected by the Massachusetts Declaration of Rights. Thus, application of the law of manslaughter to physician-assisted suicide would not impinge on an individual's right to substantive due process....

Application of the law of manslaughter to physician-assisted suicide passes constitutional muster because the law is reasonably related to the State's legitimate interests in preserving life; preventing suicide; protecting the integrity of the medical profession; ensuring that all end-of-life decisions are informed, voluntary, and rational; and "protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives."

Justice Cypher filed a concurring opinion, saying in part:

I concur with the court that the plaintiffs' proposed physician-assisted suicide schema is, as a matter of right, too procedurally complex for us to adopt whole cloth..... In addition, I fully support the court's thoughtful and timely primer on substantive due process, which preserves the comprehensive approach as the proper test for identifying fundamental rights under our State Constitution.... I therefore concur in the judgment. 

However, based on the strength of our existing case law concerning end-of-life patient autonomy, in conjunction with current palliative treatments that are commensurate with physician-assisted suicide, I do "not foreclose the possibility that some applications" of our criminal statutes "may impose an intolerable intrusion on" patient freedom.... When that appropriate challenge (or challenger) does come forward, we must be ready to extend our State constitutional protections to terminally ill patients seeking to exercise what remains of their bodily autonomy.

Justice Wendlandt, joined in part by Chief Justice Budd, filed an opinion concurring in part and dissenting in part.  He said in part:

Because I agree with the court that there is no fundamental right to prescribe, or to receive a prescription for, medication to assist a terminally ill, mentally competent patient's suicide (physician-assisted suicide), I concur in the judgment as it concerns Steinbach. I also agree with the court that application of the criminal laws to physician-assisted suicide generally survives rational basis review. I write separately because, when a terminally ill, mentally competent patient approaches the final stage of the dying process, the Commonwealth's interest in criminalizing physician-assisted suicide reduces to a nullity, such that even under rational basis review, the State Constitution protects the nonfundamental right to physician-assisted suicide from application of the State's criminal laws.

WBUR News reports on the decision.

Police Officer Sues Over Denial of COVID Vaccine Religious Exemption

This week, a former Boston police officer who is a Jehovah's Witness filed suit in a Massachusetts state trial court seeking $2 million in damages for the actions of the Boston Police Department in denying his request for a religious exemption from the Department's COVID vaccine mandate. He was placed on administrative leave and subsequently terminated. The complaint (full text) in Colon v. City of Boston, (MA Super. Ct., filed 11/28/2022), also alleges that he was ridiculed because of his religious beliefs. Boston.com reports on the lawsuit.

Mask Mandate Did Not Violate Free Exercise Rights

 In Bush v. Fantasia, (D MA, Sept. 12, 2022), a Massachusetts federal district court dismissed claims that a COVID mask mandate imposed by a town Board of Health and a public library violated plaintiffs free exercise rights. Plaintiffs claimed that they "have sincerely held religious beliefs that proscribe our wearing face masks and/or submitting to coerced medical devices/products such as face masks." The court said in part:

Plaintiffs do not identify a religious practice or explain the coercive effect the mask mandates had on that practice. A mere vague allegation that mask mandates violate their religion is not enough to survive even the most a generous pleading standard....

Even assuming arguendo that Plaintiffs have sufficiently alleged a burden on their exercise of religion, their claims would still fall. The mask mandates were facially neutral and generally applicable, i.e., they did not single out, or make any reference to, a religion or any religious practice and applied equally to all....

The court also rejected equal protection, due process and a number of other challenges. 

Massachusetts Law Exonerates Last Convicted Witch

 Section 105 of the Massachusetts FY23 Budget Bill signed by Governor Charlie Baker on July 28 exonerates Elizabeth Johnson, Jr., the last Massachusetts resident who was legally classified as a witch. As reported by Courthouse News Service, Johnson is one of 30 people convicted in Salem witch trials in 1693. All the others have previously been exonerated by the legislature. The exoneration was pushed by an eighth-grade civic teacher in North Andover, Massachusetts where Johnson had lived.

Interlocutory Appeal Available On Charitable Immunity Ruling, But Not On Church Autonomy Holding

In Doe v. Roman Catholic Bishop of Springfield, (MA Sup. Jud. Ct., July 28, 2022), the Massachusetts Supreme Judicial Court held that an defendant cannot not take an interlocutory appeal from the trial court's refusal to dismiss portions of a lawsuit on church autonomy grounds. The suit alleged that plaintiff, in the 1960's when he served as an altar boy, was sexually abused by multiple church officials including a parish priest, a pastor and the bishop. The court said in part:

The [ecclesiastical abstention] rule's central purpose is to address the historic, philosophical concern with government interference in religious affairs by maintaining the constitutional separation between religion and government; at least originally, another purpose was to prevent civil courts from addressing matters in which they lack competence.... 

Both these concerns can be addressed on appeal after final judgment if a lower court inadvertently rules on a religious issue.

The court held, however, that an interlocutory appeal is available from the trial court's ruling on charitable immunity, saying in part:

Unlike ecclesiastical abstention, then, the purpose of common-law charitable immunity was to protect certain parties "from the burden of litigation and trial." 

 At common law, charitable immunity extended only to wrongdoing "committed in the course of activities carried on to accomplish charitable activities." ... The abuse allegedly carried out by Weldon and other church leaders was not, and could not be, related in any way to a charitable mission....

However, one count should have been dismissed.... Count six alleges that the Roman Catholic Bishop of Springfield negligently hired and supervised the church leaders who allegedly assaulted the plaintiff. A negligent supervision claim is exactly the sort of allegation against which common-law charitable immunity was meant to protect.

1st Circuit Hears Oral Arguments On Religious Exemption To School's Vaccine Mandate

The U.S. 1st Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Harris v. University of Massachusetts, Lowell.  In the case, a Massachusetts federal district court rejected a student's objections to the manner in which her request for a religious exemption from the school's COVID-19 vaccine requirement was handled. (See prior posting.)

Satanic Temple Wants Its Flag To Be Raised At Boston City Hall

In the wake of the Supreme Court's decision earlier this week in Shurtleff v. City of Boston holding that Boston should have allowed Camp Constitution to  briefly fly a Christian flag on a flag pole outside city hall, The Satanic Temple has asked Boston for similar treatment.  AP reports:

The Salem-based group tweeted a request filed Tuesday with the city property management department to raise a flag marking “Satanic Appreciation Week” from July 23-29....

Lucien Greaves, the organization’s co-founder, said in an email Wednesday that the group wants to show that religious liberty must mean respect for “all forms” of religious practice and religious opinion.

Parents Sue Over School's Nondisclosure Of Children's Gender Identity Issues

Suit was filed in a Massachusetts federal district court earlier this month by four parents challenging a school policy to not notify parents of their child’s gender nonconformity or transgender status unless the child consents. The complaint in Foote v. Ludlow School Committee, (D MA, filed 4/12/2022), (full text) alleges that the policy violates parental rights of all the plaintiffs, as well as the free exercise rights of certain of the plaintiffs. It alleges in part:

158. Plaintiffs have sincerely held religious beliefs that all people are to be treated with respect and compassion, and that respect and compassion do not include misrepresenting an individual’s natural created identity as either a male or a female.

159. Plaintiffs have sincerely held religious beliefs that individuals are to speak the truth, including speaking the truth regarding matters of sexual identity as a male or female.

160. Defendants’ actions in excluding Plaintiffs Feliciano and Salmeron from decision making regarding their children’s sexual and gender identity target the Plaintiffs’ beliefs regarding the created order, human nature, sexuality, gender, ethics, and morality which constitute central components of their sincerely held religious beliefs.

Christian Post reports on the lawsuit.

Massachusetts Supreme Court Hears Oral Arguments In Clergy Sexual Abuse Case

Yesterday, the Massachusetts Supreme Judicial Court heard oral arguments (webcast of arguments) in Doe v. Roman Catholic Bishop of Springfield. (Docket entries and documents.) The court's summary of the issues involved reads:

Where the trial court denied the defendant's motion to dismiss an action alleging sexual abuse by clergy, whether the defendant may pursue an interlocutory appeal of a ruling that neither charitable immunity nor the First Amendment provides a basis to dismiss the plaintiff's claims.

Courthouse News Service has a lengthy summary of the oral arguments.

Cert. Denied In Ministerial Exception Case, With 4 Justices Expressing Concerns

The U.S. Supreme Court today denied review in Gordon College v. DeWeese-Boyd, (Docket No. 21-145, certiorari denied 2/28/2022) (Order List).  In the case, the Massachusetts Supreme Judicial Court held that the ministerial exception does not apply in a suit by an associate professor of social work at a private Christian liberal arts college who claims her promotion to full professor was denied because of her vocal opposition to the school's policies on LGBTQ individuals. (See prior posting.) Justice Alito, joined by Justices Thomas, Kavanaugh and Barrett, filed an opinion (full text) concurring in the denial of certiorari, but expressing concern with the lower court's decision, saying in part:

The Supreme Judicial Court of Massachusetts held that this “ministerial exception” did not apply to a professor at a religious college who “did not teach religion or religious texts,” but who was still expected to “integrate her Christian faith into her teaching and scholarship.” ...  Although the state court’s understanding of religious education is troubling, I concur in the denial of the petition for a writ of certiorari because the preliminary posture of the litigation would complicate our review. But in an appropriate future case, this Court may be required to resolve this important question of religious liberty....

What many faiths conceive of as “religious education” includes much more than instruction in explicitly religious doctrine or theology.... [M]any religious schools ask their teachers to “show students how to view the world through a faith-based lens,” even when teaching nominally secular subjects.

Supreme Court Denies Injunction Pending Appeal Of Case On Vaccine Mandate Exemptions

On Monday, the U.S. Supreme Court in Together Employees v. Mass General Brigham Inc. through an Order by Justice Breyer denied an Emergency Application for an injunction pending appeal to the 1st Circuit of a district court decision. At issue is the denial to eight employees of religious or medical exemptions from a health care system's COVID vaccine mandate.  The 1st Circuit in an Opinion handed down Nov. 18 had previously denied an injunction pending appeal. Boston Globe reports on the case.

Supreme Court Grants Certiorari In Case On Display of "Christian Flag" At City Hall

The U.S. Supreme Court today granted review in Shurtleff v. City of Boston, (Docket No. 20-1800, certiorari granted 9/30/2021) (Docket List). In the case, the U.S. 1st Circuit Court of Appeals upheld the city of Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) The SCOTUSblog case page with links to all the briefs and pleadings is here.

Denial Of Religious Exemption From Vaccine Mandate OK'd

In Harris v. University of Massachusetts, (D MA, Aug. 27, 2021), a Massachusetts federal district court rejected student Cora Cluett's objections to the manner in which her request for a religious exemption from the school's COVID-19 vaccine requirement was handled. According to the court:

[Student Affairs Vice Chancellor DeVeau] denied her appeal, since he determined from the substance of her request that she was Roman Catholic and concluded from his research that the COVID-19 vaccine would not violate tenets of that faith.... In interpreting Cluett’s faith to be Roman Catholic, De Veau stated “[i]f this is incorrect, please let me know.”... De Veau then cited a statement from the United States Conference of Catholic Bishops that receiving the COVID-19 vaccines was “morally justified.”

The court held first that insofar as plaintiff was asserting state law claims against state officials, these are barred by the 11th Amendment because Ex parte Young only creates an exception for federal constitutional claims. As to Cluett's 1st Amendment Free Exercise claims, the court said in part:

... UMass is under no constitutional obligation to offer a religious exemption to its Vaccine Requirement. See Nikolao v. Lyon, 875 F.3d 310, 316 (6th Cir. 2017) ....  Certainly, once the university offers religious exemptions, it must not administer them in an unconstitutional way.... Here, however, Cluett has not alleged anything to suggest that Defendants have administered their religious exemption policy in a way that burdens some religions but not others, ... or that Defendants have coerced her in her religious practices....