Michigan's New AG Withdraws From Amicus Briefs In 8 Controversial Cases

Detroit News reports that Michigan's Democratic Attorney General Dana Nessel who last month replaced Republican Attorney General Bill Schuette has withdrawn Michigan's support of amicus briefs in eight high profile lawsuits. According to the paper:

The state’s newly appointed solicitor general Fadwa Hammoud filed the motions to withdraw from the cases Tuesday, noting in each motion that the amicus briefs filed in support of the cases by Republican former Attorney General Bill Schuette “no longer represents the legal position of the State of Michigan.”...

The four cases related to reproductive rights included litigation challenging a Kentucky law requiring a doctor to perform an ultrasound before an abortion; an Ohio law that criminalized abortions performed because of a fetal indication of Down syndrome; a federal case that required permission from the Office of Refugee Resettlement before an unaccompanied minor could have an abortion at a Texas holding facility; and an Ohio law that banned government funding for Planned Parenthood non-abortion health care programs and education programs because the agency provided abortion services.

Another case that Nessel withdrew from alleged a geriatric management facility in Missouri had discriminated against a gay man when the facility allegedly withdrew an offer of employment....

Three other cases ... were filed by ... Freedom of Religion Foundation. One case challenged the presence of a Latin cross on the Lehigh County, Pennsylvania, seal and flag; another in Wisconsin challenged laws that allowed for income tax exemptions for religious clergy, but not for members of the Freedom of Religion Foundation; and a third challenged the U.S. House chaplain’s unwillingness to allow the co-president of Freedom From Religion Foundation to deliver an invocation on the House floor.

Court Orders Release of Iraqi Chaldean Detainees

A Michigan federal district court yesterday, in the latest installment in a case filed last year, ordered the release from federal detention of hundreds of Iraqi deportees who have been issued final removal orders, but whom the government has been unable to repatriate. Most of the detainees, according to the court, "are Chaldean Christians who would face persecution, torture, and possibly death if returned to Iraq." In Hamama v. Adducci, (ED MI, Nov. 20, 2018), the court said in part:

The law is clear that the Federal Government cannot indefinitely detain foreign nationals while it seeks to repatriate them, when there is no significant likelihood of repatriation in the reasonably foreseeable future. This principle emanates from our Constitution’s core value of rejecting arbitrary restraints on individual liberty.

The issue the Court now resolves is whether there is such a likelihood of repatriation for scores of Iraqi nationals whom the Government has detained for an extended period—many for well over a year—while it engages in a diplomatic dialogue with Iraq that has yet to produce any clear agreement on repatriation. In fact, the weight of the evidence actually uncovered during discovery shows that Iraq will not take back individuals who will not voluntarily agree to return. This means that the Iraqi detainees could remain locked up indefinitely—many in local jails.... [T]he Government has acted ignobly in this case, by failing to comply with court orders, submitting demonstrably false declarations of Government officials, and otherwise violating its litigation obligations—all of which impels this Court to impose sanctions.

As explained fully below, the Court will grant a preliminary injunction, as requested by Petitioners in this case, ordering that those detained more than six months be released under orders of supervision.

ACLU issued a press release announcing the decision.

Court Holds Federal Female Genital Mutilation Statute Unconstitutional

A Michigan federal district court today held, on federalism grounds, that the federal Female Genital Mutilation statute, 18 USC 116, is unconstitutional. The case involves the prosecution of medical personnel and of the mothers of minor girls in the small, Indian-Muslim Dawoodi Bohra community. (See prior posting.)  In United States v. Nagarwala, (ED MI, Nov. 20, 2018), the court rejected the government's argument that the statute can be supported as an exercise of Congress' treaty power or its power to regulate interstate commerce.

The International Covenant on Civil and Political Rights which Congress ratified in 1992 (subject to certain understandings and reservations) requires the adoption of laws to protect the rights of minors. One of the understandings imposed by Congress was that ratification would not change the relative roles of the federal and state governments. The court said in part:

Congress overstepped its bounds in  legislating to prohibit FGM.... FGM is a "local criminal activity" which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.

In rejecting the government's Commerce Clause arguments, the court said in part:

In the present case, the government has failed to show that FGM is a commercial activity. It claims that “[l]ike child pornography and marijuana, an interstate market exists for FGM.” ... Yet the government’s only evidence of such a market is the fact that it has alleged nine FGM victims in the present case, five of whom were brought to Michigan from neighboring states.... This is not a market, but a small number of alleged victims. If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute? The government’s attempt to show that there is an interstate market for FGM falls flat; its comparison to the multi-billion-dollar interstate markets for marijuana and pornography is unsupported and unconvincing....

Finally, the government asserts that only a federal statute can deal with FGM because, as Congress asserted in its fourth finding, “the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control.”... This argument fails for at least two reasons. First, the Commerce Clause allows Congress to regulate commercial activity that has a substantial effect on interstate commerce, not activity that is “beyond the ability of any single State or local jurisdiction to control.” Second, the government informs the Court that twenty-seven states have passed FGM statutes ... and nothing prevents the others from doing so.

Detroit News reports on the decision.

Michigan Appeals Court OK's State Funding For Incidental Costs of Private Schools [UPDATED]

Detroit News and Michigan Radio report on a 2-1 decision yesterday by the Michigan Court of Appeals that allows the state to reimburse private and parochial schools for the cost of complying with state health and safety mandates that are incidental to teaching and providing educational services. At issue is whether a budget appropriation of $2.5 million to reimburse private schools for the cost of fire drills, health requirements and safety inspections violates the state constitution's ban on use of state funds for private schools. Michigan's Blaine Amendment, inserted in the state constitution in 1970, bars public funds for "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school". (See prior related posting.)

Yesterday's majority opinion from Judges Murphy and Letica ruled:

The Legislature may allocate public funds to reimburse nonpublic schools for actual costs incurred in complying with state health, safety, and welfare laws. But only if the action or performance that must be undertaken in order to comply with a health, safety, or welfare mandate (1) is, at most, merely incidental to teaching and providing educational services to private school students (non-instructional in nature), (2) does not constitute a primary function or element necessary for a nonpublic school to exist, operate, and survive, and (3) does not involve or result in excessive religious entanglement.

Judge Gleicher dissenting wrote in part:

The public money directly and indirectly assists nonpublic schools in keeping their doors open and meeting their payroll, It is unconstitutional for that simple reason.

When the full text of the opinion becomes available online, this post will be updated with links to it.

UPDATE: Here is the majority opinion and the dissent in Council of Organizations and Others for Education About Parochiaid v. State of Michigan, (MI App., Oct. 16, 2018).

Court Refuses To Dismiss Challenge To Michigan's Protection of Catholic Adoption Agencies

In an important decision, a Michigan federal district court in Dumont v. Lyon, (ED MI, Sept. 14, 2018), held that same-sex couples can move ahead with their Establishment Clause and equal protection claims against the Michigan Department of Health and Human Services for permitting child placing agencies that contract with the state and receive state funds to use religious criteria to refuse to place children with same-sex couples.  Laws enacted by the Michigan legislature in 2015 protect child-placing agencies from being required to provide adoption or foster care placements that conflict with their sincerely held religious beliefs, or being penalized for doing so. (See prior posting.)

In a 93-page opinion, the court first concludes that plaintiffs have Article III (but not taxpayer) standing to bring their challenges. Then, denying defendants' motion to dismiss, the court says in part:

Plaintiffs plausibly allege ... that the State’s practice of contracting with and permitting faith-based child placing agencies to turn away same-sex couples has both the subjective purpose of discriminating against those who oppose the view of the faith-based agencies ... and objectively endorses the religious view of those agencies that same-sex marriage is wrong, sending a “‘message [to Plaintiffs] that they are outsiders, not full members of the community.’”....

The child placing agencies are, in many ways, the gateway for a family seeking to adopt or foster a child into Michigan’s adoption and foster care system. The scope of their duties, and hence any “government exclusivity” of the functions they perform, must be the subject of further discovery. For purposes of analyzing Plaintiffs’ Establishment Clause claim, the Court must accept the allegations of the Complaint as true and such allegations surely “implicate” the Establishment Clause and plausibly suggest “excessive entanglement” such that the Court will allow Plaintiffs’ Establishment Clause claim to proceed further....

Plaintiffs are entitled to an opportunity to conduct discovery to support their claim that the State’s practice of continuing to contract with faith-based agencies that invoke PA53’s religious belief protection to turn away same-sex couples lacks a rational basis and to further develop their Equal Protection claim.

ACLU issued a press release announcing the decision.

Chautauqua Cottage Community Eliminates Christian-Only Clause

As previously reported, last year a suit was filed in Michigan federal district court against the Bay View Association, a Lake Michigan summer community with roots in the Chautauqua Movement, challenging provisions in the Association's rules that limit cottage ownership to practicing Christians. Now, according to the Grand Rapids News, nearly 70% of the members of the Association have voted to amend its bylaws to eliminate the requirement that members be of the "Christian persuasion."

Challenge To Settlement In Mosque Zoning Case Is Dismissed

In Youkhanna v. City of Sterling Heights, (ED MI, Aug. 1, 2018), a Michigan federal district court dismissed a lawsuit challenging a consent decree approved by the Sterling Heights City Council growing out of a dispute over zoning approval for a mosque. (See prior posting.) The consent decree settled two related lawsuits-- one by the Islamic Center and one by the Department of Justice-- that alleged violations of RLUIPA and of the Islamic Center's free exercise rights.  An overcrowded and contentious City Council meeting preceded approval of the consent decree.  Rejecting the challenge to approval of the consent decree the court said in part:

The crux of Plaintiffs’ Complaint is that the approval of the Consent Judgment should be invalidated because the Council purportedly failed to abide by the City’s Zoning Code by neglecting to consider the discretionary standards set forth in § 25.02. Plaintiffs’ further assert that the Consent Judgment should be invalidated because the City did not comply with the notice requirements under the MZEA [Michigan Zoning Enabling Act]. Both of Plaintiffs’ arguments are without merit.

The court also rejected claims that the Michigan Open Meetings Act had been violated and that defendants' 1st, 4th and 14th Amendment rights had been infringed. The court said in part:

Plaintiffs claim their speech was impermissibly chilled when they and other audience members were limited to a two-minute speaking time, prevented from speaking critically of the Islamic faith, and removed from the meeting for being disruptive. However, ... [w]hen the government designates a limited public forum for speech, as is the case of a city council meeting, it may apply restrictions to the time, place, and manner of speech so long as those restrictions “are content neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”

The court had previously denied a preliminary injunction in the challenge.  Detroit News reports that defendants will appeal yesterday's ruling.

Meanwhile, according to AINA, another mosque controversy is on the horizon in Sterling Heights as a group of Pakistanis are moving ahead with plans to convert a former Lutheran church there into a mosque.

Gym's Failure To Disclose Transgender Policy Violates Michigan Consumer Protection Law

In Cormier v. PF Fitness-Midland, LLC, (MI App., July 26, 2018), a Michigan appellate court in a case on remand from the Michigan Supreme Court held that the gym Planet Fitness violated provisions of the Michigan Consumer Protection Act when it failed to inform plaintiff that it had a policy of allowing members to use whichever locker room and rest room corresponds to the gender with which that person self-identifies. The court concluded that Planet Fitness violated MCL 445.903(1)(s), (bb), and (cc) which prohibit:

(s) Failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer.

(bb) Making a representation of fact or statement of fact material to the transaction such that a person reasonably believes the represented or suggested state of affairs to be other than it actually is.

(cc) Failing to reveal facts that are material to the transaction in light of representations of fact made in a positive manner.

In concluding that the failure to inform plaintiff of the policy was material, the court said:

After joining the gym, plaintiff saw an assigned male individual in the women’s locker room and then complained to an employee at the front desk and to defendants’ corporate office. Upon being informed of defendants’ unwritten policy on the matter, plaintiff verbally warned other women at the gym about it. Plaintiff’s actions indicate that she strongly preferred a locker room and a restroom in which individuals who are assigned biologically male are not present, and it is thus reasonable to infer that defendants’ failure to inform plaintiff of the unwritten policy affected her decision to join the gym.

A person who successfully sues under Michigan's Consumer Protection Act may recover actual damages or $250, whichever is greater, plus attorneys' fees. Liberty Counsel issued a press release announcing the decision.

Cert. Filed In Funeral Home's Firing of Transgender Employee

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, (cert. filed 7/20/2018).  In the case, the U.S. 6th Circuit Court of Appeals held that a Michigan funeral home violated Title VII when it fired a transgender employee who was in the process of transitioning from male to female. The court, rejecting the employer's religious freedom defense, held that the employee was illegally fired because of her failure to conform to sex stereotypes. ADF issued a press release announcing the filing of the lawsuit.

Michigan AG and Civil Rights Commission At Odds Over Coverage of LGBTQ Discrimination

In May, the Michigan Civil Rights Commission issued an Interpretive Statement declaring that the protection against discrimination because of sex in the state's Elliott Larsen Civil Rights Act includes protection against discrimination on the basis of sexual orientation and gender identity.  On July 20, Michigan's Attorney General Bill Schuette issued Opinion No. 7305 concluding that the Civil Rights Commission's interpretation "is invalid because it conflicts with the original intent of the Legislature as expressed in the plain language of the Act, and as interpreted by Michigan’s courts." The Opinion elaborates:

The word “sex” was understood in 1976, when ELCRA was enacted, to refer to the biological differences between males and females, not to refer to the concepts of sexual orientation or gender identity.

Yesterday the Civil Rights Commission issued a press release taking issue with the Attorney General and reaffirming its earlier Interpretive Statement, saying in part:

The Michigan Civil Rights Commission is an independent, constitutionally created and established body.... The Commission is not bound by the opinion of the Attorney General.

Cert. Denied In Michigan Legislative Prayer Case

Last week the U.S. Supreme Court denied certiorari in Bormuth v. Jackson County, Michigan, (Docket No. 17-7220, cert. denied June 28, 2018). (Order List).  In the case, the 6th Circuit sitting en banc in a 9-6 decision upheld the invocation practices of the Jackson County Board of Commissioners.  At issue was whether the Establishment Clause is violated when invocations-- virtually all of them Christian-- are offered by elected Commissioners themselves rather than by a chaplain or invited clergy. (See prior posting.)  The denial of review came on the same day that the Supreme Court (as previously reported) also denied certiorari in a 4th Circuit legislative prayer case-- Rowan County, North Carolina v. Lund which took a contrary view in a similar situation. In the Rowan County case, Justice Thomas, joined by Justice Gorsuch, filed an opinion dissenting from the denial of certiorari, saying in part::

[T]he Sixth and Fourth Circuits are now split on the legality of legislator-led prayer. State and local lawmakers can lead prayers in Tennessee, Kentucky, Ohio, and Michigan, but not in South Carolina, North Carolina, Virginia, Maryland, or West Virginia. This Court should have stepped in to resolve this conflict.

[Thanks to Blog From the Capital for the lead on Bormuth.]

Police Misinformation To Parents Did Not Violate Their Religious Exercise Rights

Estate of Manolios v. Wickersham, (ED MI, June 13, 2018), is a suit against Macomb County, Michigan sheriff and police officers alleging numerous constitutional violations in their investigation of a fatal car accident.  The primary allegation was that authorities wrongfully identified Jonathan Manolios as the driver in order to protect the true driver who was a family friend of one of the investigating police officers. Among  the numerous allegations in the lawsuit was the following:

After the accident, Jonathan Manolios’ parents asked Defendants where their son’s body was found in relation to the crash scene. According to Plaintiffs, they sought this information because their religious beliefs required them to memorialize the location. Plaintiffs allege that Defendant Kennedy initially refused to provide this information, but then inaccurately identified the location...

The court dismissed this claim, saying:

... [T]he most that can be said of Kennedy’s alleged misconduct is that it failed to aid Plaintiffs in the practice of their religion. Plaintiffs did not know where Jonathon’s body was found after the accident regardless of what Kennedy did or did not do. As such, Plaintiffs could not have followed their religious obligation to memorialize that location even if Kennedy never provided the incorrect location.

In short, Plaintiffs identify no clearly establish law that would inform a reasonable official that the type of conduct alleged here violated Plaintiffs’ right to freely exercise their religion. For these reasons, the Court holds that Plaintiffs fail to state a viable First Amendment violation claim.

Another Permanent Injunction Against Contraceptive Mandate For Religious Colleges

In yet another in a line of cases, the Trump Administration has conceded that applying the Obama-era contraceptive mandate rules to religious non-profits would violate RFRA.  This time in Dordt College v. Azar, (ND IA, June 12, 2018), an Iowa federal district court issued a permanent injunction against enforcing the rules against Dordt College and Cornerstone University to the extent that doing so would violate their religious consciences.  This specifically includes services that the schools view as abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling.  Detroit Free Press reports on the decision. Cornerstone University is in Michigan, while Dordt College is located in Iowa.

Suit Seeks Recognition of Non-Religious Wedding Officiants

A suit was filed last week by Center for Inquiry, a secular humanist organization, challenging the limits in Michigan law that prevent secular celebrants from officiating at weddings in the state.  CFI among other things trains individuals how to solemnize marriage ceremonies consistent with secular principles.  The complaint (full text) in Center for Inquiry, Inc. v. Lyons, (WD MI, filed 5/31/2018) contends:

Michigan law, Mich. Comp. Laws § 551.7, which allows people to be married by the religious leaders of their choice, while denying these opportunities to plaintiffs, creates a preference for religion over non-religion in violation of the Establishment Clause of the First Amendment of the United States Constitution....

The complaint also alleges equal protection violations.  CFI issued a press release announcing the filing of the lawsuit.

Michigan Civil Rights Commission Says Existing Law Covers LGBT Discrimination

The Detroit Free Press reports that at its meeting today, the Michigan Civil Rights Commission, by a vote of 5-0-1, agreed to expand its interpretation of the state's Larsen Civil Rights Act to cover discrimination based on sexual orientation or gender identity.  The Commission will treat discrimination on these grounds in employment, education, housing, real estate, public accommodations and public service as violations of the existing law. The Commission will begin accepting complaints reflecting this new interpretation starting tomorrow.  The state attorney general's office, however, takes the position that this kind of expansion of coverage required legislative action.

Therapist Sues After Dismissal For Refusing To Counsel Gay Couple

A religious discrimination lawsuit was filed last week in Michigan federal district court by a licensed clinical social worker against her former employer, HealthSource Saginaw.  The complaint (full text) in Lorentzen v. Healthsource Saginaw, Inc., (ED MI, filed 5/11/2018) alleges that Kathleen Lorentzen was informed that she would be terminated, and was subjected to demeaning, threatening and abusive actions, after she insisted on referring a same-sex couple to a different therapist for marriage counseling. Lorentzen says that continuing to counsel the couple would violate her Catholic religious beliefs. The complaint alleges violations of Title VII and of various state law provisions. Thomas More Law Center issued a press release announcing the filing of the lawsuit.

University of Michigan Sued Over Anti-Bias Rules

A lawsuit was filed yesterday in Michigan federal district court against the University of Michigan challenging provisions in its disciplinary code prohibiting harassment, bullying and bias-related conduct, and enforcement of these provisions by the University's Bias Response Team. The lawsuit contends that the "amorphous prohibitions" in the conde "profoundly chill free speech and open discourse." The complaint (full text) in Speech First, Inc. v. Schlissel, (ED MI, filed 5/8/2018), alleges in part:

The University’s definitions of “bias” encompass countless instances of protected speech and expression on all manner of topics. Under the plain text of these definitions, a student may be deemed to have acted with “bias” if, for example, she gives a speech sharply criticizing the Catholic Church and its adherents for not allowing  women to become priests; this student has expressed a “negative opinion” or “attitude” about a certain group of people based on their “cultural experience” of religion....

The mere existence of the BRT mechanism chills protected expression even apart from any punishments that may result at the end of the process. The University has created and promoted a system in which students can file anonymous reports of “bias” under an amorphous definition based on anything that harms their “feelings,” which will then lead a team of University officials to spring into action to investigate. Students voicing controversial or unpopular opinions, or seeking to engage in humor, satire, or parody, may credibly fear that the BRT will be summoned in response to their speech and that they will be forced to defend themselves against accusations of “bias.”

The College Fix reports on the lawsuit.

In Michigan, Battle Over Appropriations For State Mandates On Private Schools, Continues

Detroit News yesterday reported on developments in Michigan in the battle over legislative appropriations to fund state mandates imposed on private and religious schools-- requirements such as fire drills and criminal background checks.  Last year, the state Court of Claims issued a preliminary injunction barring payment of the $2.5 million that the legislature had appropriated.  The Court's decision was based on Michigan's Blaine Amendment (inserted in the state constitution in 1970) that bars public funds for "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school". (See prior posting.)  On March 12, Immaculate Heart of Mary Catholic school in Grand Rapids, along with parents and state legislators, filed a counter-suit in the Court of Claims contending that the Blaine Amendment violates the free exercise, free speech and equal protection clauses of the federal constitution.  According to the Detroit News:

The Grand Rapids school’s lawsuit argues the state’s so-called Blaine Amendment was developed in a furor of “anti-Catholic sentiment” and should be disregarded in the debate over the $2.5 million state allocation for non-public schools.

The enjoined funding has been included by the legislature, over the opposition of Gov. Rick Snyder, in the proposed 2019 budget.

Michigan Supreme Court Reinstates Consumer Protection Challenge To Gym's Transgender Rules

The Michigan Supreme Court in  Cormier v. PF Fitness- Midland, LLC, (MI Sup. Ct., April 6, 2018), reversed a state appeals court's dismissal of a Michigan Consumer Protection Act lawsuit against Planet Fitness.  The lower court had held that plaintiff had abandoned her Consumer Protection Act claim.  Her suit challenges Planet Fitness' cancellation of her membership after her warnings to others about a transgender woman at the club.  The gym's rules allow transgender individuals to use locker rooms consistent with their gender identity.  AP reports on the decision. [revised]

Cert. Denied In Challenge To City's Removal of Cross

The U.S. Supreme Court yesterday denied certiorari in Dawson v. Grand Haven, MI, (Docket No. 17-1024, cert. denied 4/2/2018). (Order List).  In the case, the Michigan Court of Appeals in Dec. 2016 upheld a decision by the city of Grand Haven to stop display of a cross on a city-owned sand dune.  In the case, Dawson v. City of Grand Haven, the Michigan court had said in part:

More than 50 years ago, the "Dewey Hill monument" was donated to defendant as a memorial for those who served and died in the Vietnam War. The monument was placed on Dewey Hill, a sand dune that defendant owned on the Grand River. The Dewey Hill monument consisted of an elaborate lifting mechanism and foundation that was designed to maintain the sand dune. When the lifting mechanism is raised, a cross is displayed. The cross can be made into an anchor by placing attachments on the bottom and top of the cross. For many years, defendant raised the lifting mechanism to display the anchor or the cross when requested by individuals in the community. For many years, First Reformed Church, where several of the plaintiffs are members, paid the required fee and requested that the cross be displayed for its Worship on the Waterfront services, which were held at the waterfront stage and bleachers across the Grand River from Dewey Hill.

In January 2015, defendant passed Resolution 15-013. Pursuant to the resolution, the lifting mechanism of the Dewey Hill monument could only be raised to display the anchor....

Because the Free Speech Clause does not regulate government speech ..., and because the freedom of government to speak includes the right to removal of speech with which the government disapproves, ... Resolution 15-013, which prohibited the lifting mechanism of the Dewey Hill monument from being raised to show the cross, did not violate the Free Speech Clause.

Grand Haven Tribune reports on yesterday's denial of review by the Supreme Court.