Suit Challenges Michigan Medicaid Ban on Abortion Funding

Suit was filed yesterday in the Michigan Court of Claims challenging the exclusion of abortion coverage from the state's Medicaid program. Plaintiff is a local YWCA which operates a Reproductive Health Fund that provides financial support for county residents for reproductive health care, including abortion services. The complaint (full text) Young Women's Christian Association of Kalamazoo, Michigan v. State of Michigan, (MI Ct. Cl., filed 6/27/2024), alleges that the exclusion violates the state Constitutional Amendment protecting reproductive freedom, the Michigan Reproductive Health Act which implemented the Amendment and the ban on sex discrimination. ACLU issued a press release announcing the filing of the lawsuit.

Michigan Court Enjoins Abortion Restrictions Including 24-Hour Waiting Period and Consent Form

 In Northland Family Planning Center v. Nessel, (MI Ct. Cl., June 25, 2024), the Michigan Court of Claims issued a preliminary injunction against enforcement of three restrictions on abortion procedures found in Michigan law.  The enjoined provisions impose a 24-hour mandatory waiting period, require a uniform informed consent for women seeking an abortion, and bar advanced practice clinicians from performing abortions. The court held that the provisions are unconstitutional under a state constitutional amendment adopted by referendum in 2022 which grants every individual a fundamental right to reproductive freedom and provides that an "individual’s right to reproductive freedom shall not be denied, burdened, nor infringed upon unless justified by a compelling state interest achieved by the least restrictive means." The court said in part:

... [T]he Court is convinced that the [24-hour] mandatory delay exacerbates the burdens that patients experience seeking abortion care, including by increasing costs, prolonging wait times, increasing the risk that a patient will have to disclose their decision to others, and potentially preventing a patient from having the type of abortion that they prefer....

The informed-consent provisions, read as whole, are designed to force a patient to consider the alternative of not having an abortion. The manner in which the information is presented is not neutral; it is designed to eschew abortion in favor of completing a pregnancy. This forced deliberation, through the mandatory informed-consent process, burdens and infringes upon a patient’s right to make and effectuate decisions about abortion care. The State is metaphorically putting its finger on the scale, thereby infringing upon a patient’s deliberative process.

The court however refused to enjoin provisions calling for oral counseling against coercion and providing resources to victims of domestic violence. Bridge Michigan reports on the decision.

Neo-Nazi Sentenced for Defacing Michigan Synagogue

 In a press release, the Department of Justice announced yesterday:

A Michigan man was sentenced today to 26 months in prison followed by three years of supervised release for conspiring with other members of a white supremacist group, The Base, to victimize Black and Jewish people, and for defacing Temple Jacob, a Jewish synagogue in Hancock, Michigan, using swastikas and symbols associated with The Base....

The evidence at trial established that, in September 2019, Weeden, Tobin and Barasneh, all members of The Base, used an encrypted messaging platform to discuss vandalizing property associated with Black and Jewish Americans. Weeden and his co-conspirators dubbed their plan, "Operation Kristallnacht” — a term that means "Night of Broken Glass,” and refers to events that took place on Nov. 9 and 10, 1938, when Nazis murdered Jews and burned and destroyed their homes, synagogues, schools and places of business. Weeden carried out this plan on Sept. 21, 2019, when he spray-painted swastikas and symbols associated with The Base on the outside walls of Temple Jacob....

Obstructing Police Clearing Abortion Clinic Demonstrators Not Protected as Free Exercise

In People of the State of Michigan v. Connolly, (MI App., May 30, 2024), a Michigan state appellate court upheld convictions of four anti-abortion activists. Defendants had conducted a "red rose" rescue-- entering an abortion clinic, handing each client in the waiting room a rose and attempting to convince them not to proceed with abortions. When ordered by police to leave, defendants instead fell limp to the floor, and officers had to carry them out of the building. Defendants were convicted of resisting or obstructing a police officer, trespass and disturbing the peace. Defendants contended in part that the obstructing police conviction violated their First Amendment rights to the Free Exercise of religion because their actions were motivated by their Catholic faith. The court responded:

Defendants do not dispute that MCL 750.81d(1) is facially neutral because it does not refer to religion in any manner.  However, “[f]acial neutrality is not determinative.”... While a law plainly targeting a religion obviously is not neutral, “if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law [also] is not neutral[.]” ...

...  The language of MCL 750.81d is facially neutral, and defendants have not identified any possible legislative intent directed at individuals who practice Catholicism, or even those who oppose abortion on religious grounds.  Indeed, even a brief review of recent caselaw from this Court reveals MCL 750.81d is regularly used to prosecute individuals for reasons completely unrelated to religious beliefs.

The court also rejected vagueness and equal protection defenses.

Cert. Filed In Challenge To Michigan's Blaine Amendment

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Hile v. State of Michigan, (Sup. Ct., cert. filed 4/4/2024). In the case, the U.S. 6th Circuit Court of Appeals held that an amendment placed in the Michigan Constitution in 1970 that prohibits public funds from being used to aid private or religious schools does not violate the equal protection rights of parents who cannot use Michigan Educational Savings Program to send their children to religious schools. (See prior posting.) The Lion reports on the petition for review.

Air Pollution Did Not Violate City Residents' Free Exercise Rights

In Dancer v. United States, (WD MI, March 15, 2024), residents of Kalamazoo, Michigan sued a variety of governmental and private parties alleging injuries from airborne pollution, chemical discharges and odors from a nearby paper mill. Among the 34 separate claims in the lawsuit was a claim that the city's failure to deal with air quality problems caused pollution and odors that interfered with plaintiffs' ability to attend congregational worship services. The Michigan federal district court said in part:

The city’s alleged failure to improve the air quality of its residents does not give rise to a free exercise claim because that failure impacts city residents without regard to their religion.... Ordinarily, a policy or practice that is “neutral, generally applicable, and ‘incidentally burdens religions practices’” does not give rise to a free exercise claim.... Those are the circumstances here.

Man Sentenced To 1 Year + For Threatening Synagogue Shooting

According to a press release from the U.S. Attorney's Office for the Western District of Michigan, on Monday a 20-year old Michigan man was sentenced to 12 months and one day in prison, 3 years of supervised release and restitution payment of $10,648 for sending numerous Instagram messages threatening a mass shooting at an East Lansing, MI synagogue. Notes on defendant's cell phone indicated that he planned to commit suicide after the mass shooting.

Michigan Prisons Implement Settlement Agreement on Religious Practices

In a press release yesterday, the Department of Justice announced that Michigan correctional authorities have now fully implemented prison reforms required by a 2021 settlement agreement. DOJ had alleged that various prison policies violated the Religious Land Use and Institutionalized Persons Act. The challenged policies required at least 5 people for group worship, barred group religious practices for Hindu, Yoruba, Hebrew Israelite and Thelema inmates and allowed access to the kosher Passover diet only to those who were on the year-round kosher diet.  According to DOJ's press release:

MDOC changed each of these policies to expand access to religious practice in compliance with the settlement. Under the revised policies, MDOC allows group religious practice for groups of two or more, permits previously banned religious groups to hold group services and allows people to participate in the Passover diet even if they do not participate in the kosher diet year-round. Department monitoring revealed that a significant number of people whose religious exercise was previously limited by policy can now worship together and can celebrate Passover consistent with their beliefs.

Parents Sue School for Using Teen's Preferred Masculine Name and Pronouns

Suit was filed yesterday in a Michigan federal district court by parents of a 13-year-old biologically female child whose school concealed from the parents that the school was referring to the child by masculine name and male pronouns. The complaint (full text) in Mead v. Rockford Public School District, (WD MI, filed 12/18/2023), alleges in part:

7. These actions ... violated the Meads’ long-settled constitutional rights. The First Amendment protects their right to exercise their religion by directing G.M.’s education and upbringing, including on fundamental questions of existence like how G.M. identifies herself. And the Fourteenth Amendment guarantees their fundamental right to make decisions about her upbringing, education, and healthcare. 

8. By intentionally concealing from the Meads important information about their daughter’s education and health—on a subject as morally fraught as gender confusion—the District denied them these constitutional rights. Absent extraordinary circumstances, a school district’s concealment from parents of such information violates the Constitution.

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

Michigan Agency Charges Hair Salon with Gender Identity Discrimination

The Michigan Department of Civil Rights this week filed a charge of sex (gender identity) discrimination on behalf of three claimants with the Michigan Civil Rights Commission. The complaint (full text) in Michigan Department of Civil Rights v. Studio 8 Hair Lab, LLC, (MI Civil Rts. Commn, filed 11/15/2023), says that a Traverse City hair salon posted the following on its business Facebook page:

If a human identifies as anything other than a man/woman please seek services at a local pet groomer. You are not welcome at this salon. Period. Should you request to have a particular pronoun used Please note we may simply refer to you as hey you,,,, This small business has a right to refuse services. We are not bound to any oaths as relators are regarding discrimination.

Follow-up postings included the statement: "There are 2 genders; anything more is a mental health issue." The complaint contends that this posting violates the public accommodation provisions of the Elliott-Larsen Civil Rights Act. The Department of Civil Rights issued a press release announcing the filing of the discrimination charge.

Michigan Passes Institutional Desecration Ban

 Last week, the Michigan legislature gave final passage to HB 4476 (full text) (legislative history) which creates the crime of "institutional desecration." A person is guilty of the crime if the person:

maliciously and intentionally destroys, damages, defaces, or vandalizes, or makes a true threat to destroy, damage, deface, or vandalize ... because of the actual or perceived race, color, religion, sex, sexual orientation, gender identity or expression, physical or mental disability, age, ethnicity, or national origin of another individual or group of individuals....

any religious building, educational institution, library, museum, community center, campground, cemetery, business or charitable institution.  The bill now goes to Governor Whitmer for her signature. Michigan Radio reports on the bill's passage.

Suit Challenges Michigan's Reproductive Freedom Amendment on Federal Constitutional Grounds

In November 2022, Michigan voters passed a state constitutional amendment providing a right to reproductive freedom. Yesterday a group of plaintiffs filed suit in a Michigan federal district court contending that the state constitutional amendment violates the 1st and 14th Amendments to the federal Constitution, as well as the Constitution's Guarantee Clause. Among the 16 plaintiffs is "Jane Roe, a fictitious name on behalf of preborn babies." The complaint (full text) in Right to Life of Michigan v. Whitmer, (WD MI, filed 11/8/2023), alleges in part:

By reason of Article I, § 28 of the Michigan Constitution ..., Defendants have deprived Plaintiffs, specifically including women, and in particular pregnant women; preborn human beings, including Jane Roe and similarly situated individuals; preborn human beings with disabilities; partially born human beings; and human beings born following a failed abortion of the equal protection of the law guaranteed under the Fourteenth Amendment....

 Article I, § 28 permits individuals, including public school officials, medical professionals, and others, to aid or assist a minor child with procuring an abortion, obtaining contraception, obtaining “gender reassignment” medication or procedures, and becoming sterilized without parental knowledge or consent and with impunity in violation of Plaintiffs’ parental rights protected by the Fourteenth Amendment.

... Article I, § 28 permits adults to engage in sexual acts with minors so long as the minor consents, thereby undermining the right of parents to direct the upbringing of their children in violation of Plaintiffs’ parental rights protected by the Fourteenth Amendment....

Article I, § 28 nullifies all statutory protection provided to physicians and other medical professionals ... who object to abortion, contraception, “gender reassignment” medication/procedures, sterilization, puberty blockers, and other harmful medical procedures related to “reproduction” on moral and religious grounds in violation of their sincerely held religious beliefs....

Article I, § 28 deprives preborn human beings, including Jane Roe and similarly situated individuals, preborn human beings with disabilities, partially born human beings, and human beings born following a failed abortion of the right to life and liberty without due process of law....

Article I, § 28, which was passed pursuant to the process of amending the Michigan Constitution, nullifies the legitimate authority of a coordinate branch of government, the Legislative Branch, by prohibiting it from regulating or governing in a broad area of the law (“reproduction”) that has historically been within its legitimate domain in violation of the Guarantee Clause of the United States Constitution....

Right To Life Michigan issued a press release announcing the filing of the lawsuit. Detroit News reports on the lawsuit.  [Thanks to Scott Mange and Thomas Rutledge for the lead.]

6th Circuit Rejects Equal Protection Challenge To Michigan Ban On Public Funds for Private and Religious Schools

In Hile v. State of Michigan, (6th Cir., Nov. 6, 2023), the U.S. 6th Circuit Court of Appeals held that an amendment placed in the Michigan Constitution in 1970 that prohibits public funds from being used to aid private or religious schools does not violate the equal protection rights of parents who cannot use Michigan Educational Savings Program to send their children to religious schools. Plaintiffs contended that the state constitutional provision was motivated by anti-Catholic bias and based their equal protection claim on the political process doctrine. As articulated by the court:

They claim that because of the amendment, religious persons and schools cannot lobby their state representatives for governmental aid or tuition help without first amending the state constitution, which they argue disadvantages them in the political process.

The court first expressed doubt about the continued viability of the political process doctrine, and particularly whether a political process claim can be based on religious discrimination.  The court went on to hold that regardless of that, a 2000 election in which voters reauthorized the 1970 Amendment purged the provision of any religious bias that was present in the 1970 vote.

Justice Murphy dissented, contending that plaintiffs' clam should be dismissed without prejudice for lack of plaintiffs' standing.

Episcopal Priest Sues County Commissioners Over Invocation Policy

Suit was filed this week in a Michigan federal district court by an Episcopal Priest in Grand Haven, Michigan, challenging the manner in which the Ottawa County Board of Commissioners currently selects individuals to deliver invocations at Board meetings. The complaint (full text) in Cramer v. Ottawa County, (WD MI, filed 10/2/2023), alleges that prior to 2023, different Commissioners on a rotating basis selected individuals to offer invocations. However, since January 2023 when Joe Moss became Chairperson of the Commission, only he selects persons to give invocations.  He has selected only male pastors of Christian churches who share his religious beliefs.  Some of the pastors have included in their invocations praise for a far-right political group that Moss founded and leads. Plaintiff is an advocate of LGBTQ rights, while Moss has promoted an anti-LGBTQ agenda. Grand Haven Tribune reports on the lawsuit.

Michigan Supreme Court Adopts New Rule Requiring Use of Preferred Pronouns, or Respectful Alternative

In Amendment of Rule 1.109 of the Michigan Court Rules, (MI Sup. Ct., Sept. 27, 2023), the Michigan Supreme Court by a vote of 5-2 adopted a Rule requiring Michigan courts to use the name and personal pronouns listed by parties and attorneys on pleadings in the case when addressing, referring to or identifying a party or attorney orally or in writing. Alternatively, the court may use "other respectful means of address not inconsistent with the individual’s designated salutation or personal pronouns." Two Justices filed opinions concurring in the adoption of the Rule, and two other Justices filed dissents. Justice Welch, concurring, said in part:

[P]eople object to honoring a person’s specified pronouns on the basis that they do not personally agree with the notion that someone can switch genders or be nonbinary. This was the subject of a great deal of the input we received after publishing the proposed amendments. Whether for religious or other reasons, many comments reflected a personal belief that gender could not change. But the rule provides that “other respectful means” can be used to address a party who makes a specific pronoun request. Certainly, asking our judges to be respectful to litigants using other general neutral means (such as addressing a party as “Attorney Smith” or “Plaintiff Smith”) does not force anyone to violate their beliefs.

Justice Bolden concurring said in part:

Some commenters have raised First Amendment concerns, arguing that the amendment compels speech and/or infringes upon religious liberty. However, Code of Judicial Conduct, Canon 2(A) ...requires judges to “accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and [they] should do so freely and willingly.”... Similarly, the United States Supreme Court has explained that government employees have certain limitations on their freedom that they must accept in the workplace....

Justice Zahra, dissenting, said in part:

Some believe that the use of preferred pronouns is simply a matter of courtesy and that those who oppose it are stubborn, perhaps even bigoted. Others, however, believe they should not be compelled, especially under oath and/or in conflict with their deeply held religious beliefs, to affirm a person’s preferred pronouns that are inconsistent with the biological gender on that person’s birth certificate. All told, this is a fluid political debate into which our judicial branch of state government should not wade, let alone dive headfirst and claim to have resolved. Such hubris has no place within the operation of a judicial branch of state government. As aptly stated by the Catholic Lawyers Society of Metropolitan Detroit, “[t]he Court should decline to insert itself into one of the most controversial social issues of our time, declare a winner, dismiss objections as mere products of bigotry, and threaten to punish dissenters whilst ignoring their constitutional rights.” I am deeply troubled by the Court’s willingness to do so.

Justice Viviano, dissenting, said in part:

... [A]ll the arguments that the concurrences employ against the constitutional concerns with the present action could in turn be employed to support the opposite rule. I have my doubts that the majority would be so cavalier about the First Amendment implications of their actions if the shoe was on the other foot.

CBS Detroit reports on the new rule.

6th Circuit Says Zoning Restrictions on Prayer Trail Violate RLUIPA

In Catholic Healthcare International, Inc. v. Genoa Charter Township, (6th Cir., Sept. 11, 2023), the U.S. 6th Circuit Court of Appeals ordered a Michigan federal district court to promptly enter a preliminary injunction that will allow a Catholic healthcare organization to restore a Stations of the Cross prayer trail along with a stone altar and mural. Genoa Township zoning officials had insisted that the Prayer Trail should be treated as a church for zoning purposes. Plaintiffs sued contending that the zoning ordinance as applied to them violates RLUIPA. The court said in part:

The question here is whether the Township’s decision to treat the prayer trail as the equivalent of a church building—thereby requiring plaintiffs to apply for a special land-use permit—imposed a substantial burden on their “religious exercise[.]”...

The only factor that the Township mentions, in arguing that plaintiffs have not borne a substantial burden, is whether “a plaintiff has imposed a burden upon itself[.]” Id. This factor reflects that, when a plaintiff has good reason to know in advance that its proposed usage will be subject to an onerous review process, the burdens of that process are not likely to count as substantial for purposes of 42 U.S.C. § 2000cc(a)(1). But here the Township’s zoning ordinance gave plaintiffs little reason to expect the treatment they have received....

... [P]laintiffs had reason to think that their prayer trail would be treated in the same manner as “[p]rivate non-commercial parks, nature preserves and recreational areas”—none of which require a special land-use permit in the type of zoning district ... in which plaintiffs’ parcel is located....

The court also held that a Township ban on organized gatherings on plaintiffs' property would likely substantially burden their religious exercise.

Judge Clay filed a concurring opinion expanding on the legal standards governing claims under RLUIPA.  CBS News reports on the decision.

1st Amendment Requires Exemption from Anti-Bias Law for Business That Discriminates Against Same-Sex Weddings

In Country Mill Farms, LLC v. City of East Lansing, (ED MI, Aug. 21, 2023), a Michigan federal district court held that the city of East Lansing violated the Free Exercise rights of Country Mill Farms and its owner when the city refused to invite Country Mill to be a vendor at East Lansing's Farmer's Market.  The refusal was based on Country Mill's violation of the city's anti-discrimination ordinance in another part of Country Mill's business.  Country Mill rents out a portion of its farm property for weddings, but for religious reason will not rent it out for same-sex weddings. The court held that the discrimination ban was not generally applicable because of exemptions in the anti-discrimination ordinance that would allow the city to do business with firms that discriminate on the basis of sexual orientation. The court concluded in part:

In light of the nondiscretionary and the discretionary exemptions in the ordinance, the City has not demonstrated a compelling interest in excluding Plaintiffs from the Farmer’s Market. The City’s nondiscrimination ordinance tolerates the same discrimination in other situations.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Michigan Legislature Bans Conversion Therapy-- 22nd State To Do So

The Michigan legislature yesterday gave final passage to HB 4616 (full text) and HB 4617 (full text), bills which together prohibit mental health professionals from engaging in conversion therapy with a minor. HB4617 contains an elaborate definition of "conversion therapy" which explicitly excludes, among other things, "counseling that provides acceptance, support, or understanding of an individual or facilitates an individual's coping, social support, or identity exploration and development ...  as long as the counseling does not seek to change an individual's sexual orientation or gender identity."  When signed by the Governor, Michigan will become the 22nd state (plus the District of Columbia) to ban conversion therapy for those under 18. M Live reports on the new legislation.

6th Circuit: Michigan Prisons Must Recognize Christian Identity As A Religion

In Fox v. Washington, (6th Cir., June 26, 2023), the U.S. 6th Circuit Court of Appeals held that the Michigan Department of Corrections had not adequately justified its refusal to recognize Christian Identity as a religion for purposes of the Michigan prison system. The court had previously remanded the case for the state to demonstrate that it met the requirement under RLUIPA that it has a compelling governmental interest in not recognizing Christian Identity, and that it has employed the least restrictive means in doing so. The state focused on the safety concerns growing out of the white supremacist ideology of the religious movement. The 6th Circuit concluded that this is insufficient, in part because the prison system had not considered alternatives short of non-recognition, saying in part:

Begin with the Department’s “policy directive” for “religious beliefs and practices of prisoners.” It plainly does not allow unfettered group worship simply because the Department recognizes a religion....

RLUIPA ... requires an individual inquiry even when group worship is the sought accommodation.... Indeed, each plaintiff testified that he was nonviolent and would prevent others from acting aggressively at group services. The Department offered silence in response—it did not, for example, present any evidence that plaintiffs or any other inmates who follow Christian Identity are violent. True, Bechler linked Christian Identity to racial violence outside the prison setting. But nothing in the record links plaintiffs to any prison violence, racially motivated or otherwise. In short, the Department presented evidence regarding Christian Identity as a whole, but not concerning plaintiffs. In failing to conduct an individualized inquiry, the Department’s decision-making process was deficient....

Although the record links Christian Identity to white nationalist groups, nothing in the record addresses how many Christian Identity adherents are members of those groups. The Department has the burden to show that refusing to recognize Christian Identity is the least restrictive means to advance facility security.... It cannot meet that burden by simply gesturing toward some Christian Identity adherents being members of white supremacist groups and rely on this court to fill in the gaps....

AP reports on the decision.

New Michigan Law Bars Employment Discrimination Because of Abortion

Yesterday, Michigan Governor Gretchen Whitmer signed SB147 (full text) which amends the Elliott-Larsen Civil Rights Act to bar discrimination because the individual has had an abortion. Bridge Michigan reports on the new law.