Satanic Temple Can Move Ahead With Establishment Clause Claim As To Invocation Denial

In The Satanic Temple, Inc. v. City of Boston, MA (D MA, July 21, 2021), a Massachusetts federal district court refused to dismiss an Establishment Clause challenge to Boston's City Council invocation policy.  The court said in part:

TST reached out to the Boston City Council, which opens each of its meetings with a prayer, asking to give the invocation.... Defendant denied those requests, explaining that City Councilors choose speakers from their communities for their assigned weeks, and that TST could not lead the prayer without an invitation from a City Councilor.... Those denials were made after members of the Boston public objected to the possibility of TST opening a City Council session with a prayer and in the wake of a public outcry and 2,000-person protest after TST attempted to stage a “Black Mass” at Harvard....

Given the fact-specific nature of the inquiry into the constitutionality of legislative prayer schemes and the lack of controlling authority from the First Circuit or Supreme Court, this Court will not dismiss TST’s Establishment Clause claim at the motion to dismiss stage....  TST has plausibly raised a claim that Defendant’s prayer selection policy has discriminated against it in violation of the Establishment Clause.

The court dismissed plaintiff's free exercise, free speech and equal protection challenges. Universal Hub reports on the decision.

Firefighter Loses Suit Over Refusal To Be Photographed

In Swartz v. Sylvester, (D MA, June 28, 2021), a Massachusetts federal district court dismissed a damage action brought by a firefighter who was disciplined after he refused, based on his personal Christian religious beliefs, to sit for an in -uniform photograph because it might be used for promotional purposes, and not just for ID tags and cards. The court said in part:

[T]he order was both facially neutral (and neutral in light of the totality of the circumstances) and generally applicable. Therefore, Sylvester must show only a “rational basis” for the policy....

The court also found qualified immunity:

even assuming that Swartz’s rights under the Free Exercise Clause were in fact violated, the legal contours of those rights were not sufficiently clear that a reasonable official would have understood that what he was doing violated them. 

Cert. Filed In "Christian Flag" Case

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Shurtleff v. City of Boston. In the case, the U.S. 1st Circuit Court of Appeals upheld 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.) Liberty Counsel issued a press release announcing the filing of the petition.

Building Code Is Not Zoning Law Under RLUIPA

In St. Paul’s Foundation and Shrine of Saint Nicholas the Wonder Worker, Patron of Sailors, Brewers and Repentant Thieves v. Baldacci, (D MA, May 21, 2021), a Massachusetts federal district court held that revocation of a building permit to assure compliance with the state building code is not covered by RLUIPA.  Plaintiff, a monastery, sought to renovate a building to provide a space to brew beer, a chapel and and a fellowship hall.  The court concluded that a building code is not a land use regulation or zoning law. Moreover, there was no substantial burden on religious exercise.

Church Sues Over Massachusetts COVID Regulations

Suit was filed yesterday in a Massachusetts federal district court by a church challenging the state's COVID-19 reopening regulations. The complaint (full text) in New Life South Coast Church v. Baker, (D MA, filed 5/10/2021), alleges in part:

Massachusetts’ phased COVID-19 reopening regulations, both as drafted by the Commonwealth and as implemented by the City, single out places of worship for differential and disfavored treatment. Under those regulations, restaurants, theaters, public transit, and other places of public gathering have limited or no restrictions on capacity, beyond the practical constraints of social distancing, while places of worship must follow more burdensome capacity restrictions. In addition, the regulations single out places of worship for special disfavor by barring “communal gatherings” before and after the religious service—a restriction that applies to no other institution or activity, and that purports to regulate how Massachusetts citizens may exercise religion.

First Liberty issued a press release announcing the filing of the lawsuit. 

Massachusetts City Council Recognizes Polyamorous Domestic Partnerships

On March 8, Cambridge, Massachusetts City Council adopted amendments to the city's Domestic Partnership Ordinance allowing polyamorous domestic partnership.  The ordinance now provides that

"Domestic partnership" means the entity formed by two or more persons who meet the following criteria and jointly file a registration statement proclaiming that: 1. They are in a relationship of mutual support, caring and commitment and intend to remain in such a relationship; ... 5. They consider themselves to be a family.

CNA reporting on the amendment points out that Cambridge becomes the second town, after Somerville, to legally recognize such domestic partnerships.

Massachusetts Supreme Court Says Social Work Prof Not Covered By The Ministerial Exception

In DeWeese-Boyd v. Gordon College, (MA Sup. Ct., March 5, 2021), 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. In allowing plaintiff to move ahead with her discrimination, retaliation and breach of contract claims, the court said in part:

We conclude that Gordon College (Gordon) is a religious institution, but that the plaintiff, Margaret DeWeese-Boyd, is not a ministerial employee..... [S]he did not teach religion or religious texts, lead her students in prayer, take students to chapel services or other religious services, deliver sermons at chapel services, or select liturgy, all of which have been important ... factors in the Supreme Court's functional analysis. The most difficult issue for us is how to evaluate her responsibility to integrate her Christian faith into her teaching and scholarship as a professor of social work.

The Supreme Court has not specifically addressed the significance of the responsibility to integrate religious faith into instruction and scholarship that would otherwise not be considered ministerial. If this integration responsibility is sufficient to render a teacher a minister within the meaning of the exception, the ministerial exception would be significantly expanded.... In fact, Gordon has recently attempted to describe all of its faculty, and even all of its employees, as ministers, over the objection of the faculty itself. It is our understanding that the ministerial exception defined by the Supreme Court is more circumscribed.

Salem News reports on the decision.

Satanic Temple Challenges Boston City Council's Prayer Policy

Earlier this week, The Satanic Temple filed suit in a Massachusetts federal district court challenging the policy of Boston City Council for selecting individuals to offer the invocations at Council meetings.  The complaint (full text) in The Satanic Temple, Inc. v. City of Boston, MA, (D MA, filed 1/24/2021), alleges that any member of City Council can select a prayer giver. However, The Satanic Temple, which was not selected by a Council member, was denied permission to offer a prayer.  The complaint, claiming Establishment Clause, Free Exercise, Free Speech and Equal Protection violations, contends in part:

As a result, the City broadcasts two constitutionally impermissible messages: those religions who make the cut are endorsed and are therefore insiders of the politically favored community; those who don’t make the cut are not endorsed and are therefore outsiders from the politically favored community.

AP reports on the lawsuit.

1st Circuit Again Upholds Boston's Refusal To Fly Christian Flag From City Hall Flagpole

In Shurtleff v. City of Boston, (1st Cir., Jan. 22, 2021), the U.S. 1st Circuit Court of Appeals, in a case coming before it for a second time, again 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. The court said in part:

Because the City engages in government speech when it raises a third-party flag on the third flagpole at City Hall, that speech is not circumscribed by the Free Speech Clause....  The City is therefore "entitled" to "select the views that it wants to express."...

The court also rejected plaintiffs' Establishment Clause claim, saying in part:

The exclusion of religious entities from a public  program, without more, does not violate the Establishment Clause. See Carson ex rel. O.C. v. Makin, 979 F.3d 21, 49 (1st Cir. 2020). Nor is proof of such exclusion evidence of hostility towards religion....

We add, moreover, that while the Establishment Clause may not require a secular-flag policy, the City "may act upon [its] legitimate concerns about excessive entanglement with religion" in administering its flag-raising program....

Our government-speech finding bolsters the conclusion that the City would be perceived to endorse the messages conveyed by the flags that it flies.

Expanded Contraceptive Mandate Exemptions Again Upheld

Last July in Little Sisters of the Poor v. Pennsylvania, the U.S. Supreme Court rejected two kinds of challenges to the Trump Administration's expanded conscience exemptions from the Affordable Care Act's contraceptive coverage mandate. the Court held that the relevant federal departments had authority to promulgate the rules, and that the procedural process used to adopt the rules was valid. The case was remanded for consideration of any other issues. (See prior posting.) Now in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (D MA, Jan. 15, 2021), a Massachusetts federal district court on remand held that the expanded exemptions are not arbitrary and capricious, and do not violate either the Establishment Clause or the Equal Protection guarantee of the 5th Amendment. In rejecting the Establishment Clause challenge, the court said in part:

Permitting entities to practice their beliefs as they would in the absence of the relevant government-imposed regulations does not, in this instance, rise to an unconstitutional violation of the Establishment Clause.

Massachusetts COVID Requirements For Church Services Upheld

In Delaney v. Baker, (D MA, Jan. 6, 2021), a Massachusetts federal district court rejected plaintiff's claims that COVID-19 orders imposing maximum occupancy limits and requiring a mask and social distancing at Catholic religious services, as well as more general mask requirements, violate his free exercise rights. The court held that plaintiff's claims as to restrictions at religious services should be dismissed for lack of standing:

Delaney’s ... challenge ... that his First Amendment right to freely exercise his religion is infringed by the maximum occupancy limits, fails.... This injury is not concrete and particularized, nor is it actual or imminent.... The joint finding is devoid of any evidence that Delaney was ever denied access to his parish church, let alone that such a denial was due to Governor Baker’s occupancy limit....Delaney also argues that the mask mandate violates his religious beliefs and therefore his First Amendment right to the free exercise of his religion and that the social distancing guidelines for churches are an affront to the free exercise of his religion.... Setting aside, for a moment, the mask mandate outside of Delaney’s parish, the mask mandate within his parish and Delaney’s injury from the social distancing guidelines within his parish fail to allege a redressable injury.... Delaney is claiming that Governor Baker’s orders are the cause of his parish’s protocols which are infringing on the exercise of his religion.... There is no evidence, however, that the Archdiocese instituted its protocols only because of Governor Baker’s orders, and even had it done so, there is no evidence that a favorable ruling would result in redress of Delaney’s injury....

As to the more general mask requirement, the court said in part:

Governor Baker’s orders for all residents to wear masks are rationally related to the interest in stemming the spread of COVID-19 because, as the parties stipulated in the joint finding, “[i]t has been proven that the wearing of masks can slow the transmission of the spread of the coronavirus.”....

Delaney’s challenge suffers the same fate under the more deferential Jacobson standard.

Ministerial Exception Doctrine Leads To Dismissal of Music Director's Discrimination Suit

In Menard v. Archdiocese of Boston, (MA App., July 29. 2020), a Massachusetts state appellate court held that the ministerial exception doctrine requires dismissal of a sex and age discrimination suit against the the Archdiocese.  In the suit, a church's director of music ministries claimed that the church's pastor subjected her to harassment and that she was retaliated against when she notified the Archdiocese. The court said in part:

In this case, Menard's job duties place her squarely within the ministerial exception. As implied by her title, director of music ministries, Menard's role was a substantive one. She selected and played music at all parish events, taught and conducted multiple choirs, trained the church's cantors, and organized the cantors' schedule for Mass. Far more than the rote playing of an instrument, ... Menard's job required her to thoughtfully select the music for each event and train others to perform it. 

Court Dismisses Challenge To City's Refusal To Fly Christian Flag

In Shurtleff v. City of Boston, (D MA, Feb. 4. 2020), a Massachusetts federal district court dismissed a suit challenging refusal by the city of Boston to fly a Christian themed flag on a flag pole outside city hall for a Constitution Day and Citizenship Day event sponsored by plaintiffs. The court held that the city's flag display constituted government speech that is not subject to the strictures of the First Amendment.  It also held that the city's actions did not violate the Establishment Clause or Equal Protection clause. The 1st Circuit Court of Appeals last June affirmed the denial of a preliminary injunction in the case. (Full text of 1st Circuit opinion).

Court Refuses To Dismiss Suit To Allow Christian Flag Outside Boston City Hall

In Shurtleff v. City of Boston, (D MA, May 3, 2019), a Massachusetts federal district court refused to dismiss a suit brought to enjoin the City from denying permission to a religious organization to display a Christian flag on a flagpole outside City Hall for an event marking Constitution Day and Citizenship Day event. The flag pole flies the city's flag except when it is used by outside groups for a flag to mark a special event. The court held that there are factual issues to be determined on plaintiffs' free speech claims-- whether this involves "government speech," and whether the city has imposed a reasonable, viewpoint neutral regulation in a limited public forum. Also factual issues remain on plaintiffs' Establishment Clause and Equal Protection claims.

No Immunity For Order That Kept Plaintiff Away From Her Church

In Krupien v. Ritcey, (MA App., Sept. 26, 2018), a Massachusetts appellate court held that officials of the state-run Chelsea Soldiers' Home do not have qualified immunity in a suit against them under the Massachusetts Civil Rights Act alleging free exercise infringement.  The multi-building campus on which the Home was located included a chapel open to the public.  The lawsuit grew out of a stay-away directive issued during the investigation of a complaint that Teresa Krupien injured her co-worker's wrist while transferring a patient from a bed to a wheelchair. Until modified, the order to keep off the campus prohibited Krupien from attending her church for 37 days, including Christmas. the court concluded that reasonable officials would have known that the order was not narrowly tailored.

Court Will Not Order Group's Christian Flag Displayed On City Flag Pole

In Shurtleff v. City of Boston, (D MA, Aug. 29, 2018), a Massachusetts federal district court refused to grant a preliminary injunction against the city's policy of refusing to fly non-secular flags from City Hall flagpoles.  Plaintiffs sought to fly a "Christian flag” from the city's pole in conjunction with a Constitution Day and Citizenship Day event.  Rejecting plaintiffs' free speech argument, the court said in part:

If the flags are government speech, as Defendants assert, “then the Free Speech Clause has no application” and the City may “select the views that it wants to express.” ... In contrast, if the flags are private speech displayed in a limited public forum, as Plaintiffs argue, the restriction on non-secular flags must be reasonable and viewpoint neutral.... This Court concludes that the selection and display of the flags on the City flagpole constitute government speech. Moreover, even if they did not constitute government speech, the Court finds that the City’s restriction on non-secular flags satisfies the constitutional requirements for limitations on speech in a limited public forum....

The City’s policy is ... reasonable based on the City’s interest in avoiding the appearance of endorsing a particular religion and a consequential violation of the Establishment Clause.... Moreover, ... [in suggesting] the opportunity to conduct their event on City Hall Plaza, fly a secular flag on the City flagpole or display the Christian flag on City Hall Plaza but not on the City flagpole, the City has demonstrated reasonableness and that it does not seek to silence Plaintiffs. 

The court also rejected Establishment Clause and Equal Protection challenges. Boston Globe reports on the decision.

Open Meeting Lawsuit Filed Growing Out of Alleged Anti-Jewish Curricular Materials

Jewish News Syndicate reports on a taxpayer lawsuit filed last week in state court in Massachusetts growing out of an ongoing dispute over teaching materials used in the Newton school system.  Newton residents have contended that the schools are using anti-Jewish anti-Israel educational materials, including ones funded by the Saudi oil company ARAMCO and the government of Qatar. The lawsuit alleges violations of the state's open meeting laws, contending that month after month the minutes of the meetings of the Newton School Committee deliberately omit names and summaries of remarks by citizens who have appeared before the committee to complain about anti-Jewish materials and Islamic religious lessons.  Critics of the curriculum also urge the firing of the current school superintendent.

Court Says Religious Commitment To Climate Justice Prevails Over Historic Preservation Rules

According to the Keene Sentinel, last week a Massachusetts trial court judge ruled that a church's religious commitment to climate justice takes precedence over historic preservation rules:

A Massachusetts Superior Court judge last week ordered Bedford’s Historic District Commission to allow the First Parish Church to install solar panels on the roof of the sanctuary. In what could be a precedent-setting decision, the congregation can install panels to generate electricity in keeping with a principle of “climate justice.” John Gibbons, senior minister of the church, said in a press release, “This ruling makes it possible for us to give more than lip service to our religious values, to walk our talk and to live in greater harmony with the rhythms of nature.”

In other words, parishioners believed they needed to do something to cut carbon emissions to protect the earth. That principle of their faith overruled a strict adherence to preservation of the historic character of their 200-year-old building.

1st Circuit RefusesTo Change District Court's Language Criticizing Anti-LGBT Activist

In Sexual Minorities Uganda v. Lively, (1st Cir., Aug. 10, 2018), the U.S. 1st Circuit Court of Appeals refused to purge the opinion of a Massachusetts federal district court of language that harshly criticized the actions of anti-LGBT activist Pastor Scott Lively.  The 1st Circuit said that because Lively had won in the district court, it lacks jurisdiction over an appeal, noting:

federal courts of appeals have no roving writ to review ... a district court's word choices...

The case involved an Alien Tort Statute lawsuit against Lively growing out of his aid to anti-LGBT activists in Uganda. The district court held that there had been insufficient conduct in the United States to support a suit under the ATS. Courthouse News Service reports on the decision.

Boston Sued Over Refusal To Allow Christian Flag On Public Flag Pole

A suit was filed last week in Massachusetts federal district court against the city of Boston by Camp Constitution, a non-profit organization whose purposes include enhancing understanding of the United States' Judeo-Christian moral heritage.  The complaint (full text) in Shurtleff v. City of Boston, (D MA, filed 7/6/2018) alleges that it was refused use of a City Hall flagpole that is generally available to organizations to use in connection with cultural, historic or other events.  Camp Constitution sought to fly a Christian flag in connection with its planned event designed to recognize the contributions Boston’s Christian community to the city’s cultural diversity, intellectual capital and economic growth.  The city refused permission under an informal policy that allowed only "non-secular" flags to fly from the pole. The suit contends that this violate's plaintiffs' free speech and equal protection rights as well as the Establishment Clause under both the U.S. and Massachusetts constitutions. Liberty Counsel issued a press release announcing the filing of the lawsuit.