Michigan Supreme Court Refuses To Reverse Injunction Against Private School Aid

In Council of Organizations and Others for Education About Parochiaid v. State of Michigan,  (MI Sup. Ct., March 9, 2018), the Michigan Supreme Court in a brief order denied leave to appeal a preliminary injunction issued by the Court of Claims.  That injunction prohibited payment of $2.5 million the legislature had allocated to private schools to cover the cost of complying with state mandates. (See prior posting.)  Chief Justice Markham filed a dissenting opinion arguing that the decision of the Court of Claims should be reversed.

Christian Student Group Sues Over Decertification

The InterVarsity Christian Fellowship at Wayne State University has filed a federal lawsuit challenging the University's action removing its status as a recognized student organization.  The complaint (full text) in InterVarsity Christian Fellowship/ USA v. Board of Governors of Wayne State University,  (WD MI, filed 3/6/2018), alleges that the action was taken against it because of the organization's requirements that its leadership share its Christian faith and affirm the group's statement of faith.  The university contends that this violates its non-discrimination policy.  InterVarsity has operated on Wayne State's campus for 75 years.  the complaint claims that the University's action violates various federal and state constitutional and statutory provision.  Detroit News reports on the lawsuit.

UPDATE: According to a press release from Becket, two days after the suit was filed the University reinstated InterVarsity Christian Fellowship, at least temporarily.

Suit Filed Over Assets of Michigan-Based Communal Sect

The Detroit News this morning reports on a lawsuit that has been filed in an Oakland County, Michigan trial court over millions of dollars of assets of the Israelite House of David (IHOD).  IHOD was a communal religious sect created in 1903 and based in Benton Harbor, Michigan.  Members of the sect were required to remain celibate, and apparently only three members of the sect (one of whom is very ill) remain.  The suit was filed by Charles Ferrel who lives in Hawaii and was excommunicated-- he says wrongfully-- five years ago.  He alleges that defendants (two of the remaining members) have taken $50 million in assets from IHOD.  The sect's assets are located in Michigan, Hawaii and Australia,  Australia was envisioned by the sect as the place where its members would relocate when the world collapsed as predicted in the Book of Revelation.  In the suit, plaintiff seeks reinstatement as a member and control of the assets.  Alternatively he asks that the assets be turned over to the state of Michigan for it to dispose of them according to law.

One Count Dismissed In Michigan Female Genital Mutilation Case

A Detroit (MI) federal district court yesterday dismissed the most serious of seven charges against two doctors indicted for their involvement in alleged female genital mutilation of girls who are members of the Dawoodi Bohra, a Muslim sect from western India. (See prior related posting.)  In United States v. Nagarwala, (ED MI, Jan. 14, 2018), the court dismissed the Count charging violation of 18 USC Sec. 2423, Conspiracy to Transport Minor with Intent to Engage in Criminal Sexual Activity.  The court held that "sexual activity" as used in the statute must involve libidinal gratification.  Applying that definition, the court said:

The government does not contend that Dr. Nagarwala or Dr. Attar sought or obtained any libidinal gratification from subjecting the minor victims to FGM....  In short, while the indictment may sufficiently allege a violation of the FGM statute – the statute adopted by Congress to address precisely such genital cutting – it does not allege that defendants transported minors intending that they engage in “sexual activity.” 

Detroit News reports on the decision.

Court Refuses To Dismiss Constitutional Challenges To City's Civil Rights Law

In Country Mill Farms v. City of East Lansing, 2017 U.S. Dist. LEXIS 191658 (WD MI, Nov. 16, 2017), a Michigan federal district court refused to dismiss a number of plaintiff's constitutional challenges to a city's civil rights ordinance. Vendor Guidelines for East Lansing's Farmers' Market required vendors to comply with the civil rights ordinance as a general business practice. Country Mill Farms was denied a vendor permit because, while it hosts weddings at its orchard, it refuses on religious grounds to host same-sex weddings.  It announced its policy in a Facebook post.

The court allowed Country Mill to move ahead with an overbreadth challenge to a portion of the ordinance, saying in part:

The City is wrong that the Ordinance regulates only conduct. The Ordinance also regulates speech. Section 22-32 of the Code defines "harass" as including "communication which refers to an individual protected under this article." Section 22-31 prohibits harassment of any person based on a list of characteristics. And, Section 22-35(b)(2) prohibits the printing and publishing of certain statements and signs based on their content.

The court also refused to dismiss plaintiff's Free Exercise and Establishment Clause challenges (as well as an unconstitutional conditions challenge), saying in part:

Plaintiffs have alleged sufficient facts to state a plausible claim for a violation of their rights under the Free Exercise Clause. Plaintiffs have pleaded facts to support a claim that the City enacted a generally applicable and neutral policy, which was then used to target Plaintiffs' religiously-motivated conduct. The Ordinance did not apply to Plaintiffs in 2016. After the City learned that Plaintiffs would not hold same-sex weddings on their farms because of Plaintiffs' religious beliefs, the City amended the Vendor Guidelines to incorporate the neutral and generally applicable law and applied it to Plaintiffs. As pled, the City's action is a "veiled cover for targeting belief or a faith-based practice." ...

Plaintiffs have pled sufficient facts to state a plausible claim under the Establishment Clause. The facts in the complaint allow the Court to infer that the predominant purpose of the changes to the Vendor Guidelines was motivated by the disapproval of Plaintiffs' religious beliefs.

Various other challenges to the ordinance were dismissed. (See prior related posting.)

6th Circuit Dismisses Challenge To Michigan Procedures For Vaccination Exemption

In Nikolao v. Lyon, (6th Cir., Nov. 7, 2017), the U.S. 6th Circuit Court of Appeals ordered dismissal of a challenge to Michigan's procedures for granting school children a religious exemption from vaccination requirements. In order to obtain an exemption, a parent is required to visit the local health department and explain the basis for the objection.  A health worker must certify that the parent has received education on the benefits of immunizations and the risks involved in not receiving them.  Also the state has published a series of "Waiver Notes" containing responses to parental objections, including religious objections.  The court held that plaintiff, a mother who asserted her Catholic religious beliefs as the basis for the request, lacked standing to raise a free exercise claim, saying in part:

While Nikolao has presented facts suggesting that she was exposed to religious information with which she did not agree, she has given no indication that the information coerced her into doing or not doing anything. Nikolao went to the WCDH to receive a vaccination exemption and left with one.

The court found that plaintiff did have standing to assert an Establishment Clause claim, but concluded that no Establishment Clause violation was shown, saying in part:

The Certification Rule only requires local health workers to have a conversation with objecting parents.... As part of that conversation, the state may offer its own take on a parent’s objections. But the Certification Rule does not allow state officials to withhold an exemption based on the legitimacy of those objections. Were that the case, the outcome here may very well be different....

Similarly, the Religious Waiver Note does not violate the Establishment Clause. The Note outlines a health department worker’s available responses to religious objections concerning vaccination. To be sure, this document contains information about specific religions.... But, again, the purpose of providing this information is secular.

[Thanks to Tom Rutledge for the lead.]

Court Rejects Challenges To Policies Protecting Muslim Women Booking Photos

In Schlussel v. City of Dearborn Heights, (ED MI, Oct. 11, 2017), a Michigan federal district court rejected various challenges by a journalist to a partial denial of her state Freedom of Information Act request for booking photos and videos that were taken of a Muslim woman with her hijab removed.  The city denied the request under the state FOIA's privacy exception.  In the meantime the city had modified its booking procedures-- in response to litigation-- to allow women to continue to wear their hijabs or burkas in booking photos.

The court rejected claims by plaintiff, who was female and Jewish, that her equal protection rights were violated because the photos and videos in question had been released to a Muslim male who was the Muslim woman's lawyer.  The court also rejected a claim that the city's new booking policy violates the Establishment Clause because it applies only to Muslim women.

6th Circuit Hears Oral Arguments In RFRA Defense To Transgender Discrimination

The U.S. 6th Circuit Court of Appeals heard oral arguments (audio of arguments) in EEOC v. RG and GR Harris Funeral Homes Inc. In the case, a Michigan federal district court upheld a funeral home's defense under the Religious Freedom Restoration Act to a charge by the EEOC that the funeral home, in enforcing its dress code for males, engaged in gender stereotyping.  The funeral home dismissed a transgender employee who was in the process of transitioning from male to female. (See prior posting.)

Lawsuit Challenges Adoption Agencies' Refusal To Place Children With Same-Sex Couples

Today two same-sex couples and a Michigan taxpayer filed suit in a Michigan federal district court challenging the state's practice of contracting out foster-care and adoptive placement to social service agencies that apply religious criteria in placing children.  Statutes passed the state legislature in 2015 approve this practice.  The complaint (full text) in Dumont v. Lyon, (ED MI, filed 9/20/2017), alleges that religiously affiliated agencies' practice of turning away qualified families on the basis of sexual orientation, violates the Establishment Clause and the Equal Protection Clause.  ACLU issued a press release announcing the filing of the lawsuit.

Michigan Civil Rights Commission Stymied In Effort To Issue Interpretive Opinion On Law's Coverage

In June, Equality Michigan wrote the Michigan Civil Rights Commission asking it to issue an interpretative statement finding that the ban on sex discrimination in employment, housing, and public accommodations in Michigan’s Elliott-Larsen Civil Rights Act covers discrimination based on gender identity and sexual orientation. (Full text of letter.)  As reported by MLive, on Monday the Commission held a lengthy hearing on the request, but took no final action after an Assistant Attorney General told the Commission that lacks legal authority to issue an interpretive statement. A frustrated Commission voted 5-2 to ask the Attorney General for a formal opinion on its authority.

Farmer's Market Must Issue Vendor's Permit To Orchard That Refuses To Host Same-Sex Weddings

In Country Mill Farms, LLC v. City of East Lansing, (WD MI, Sept. 15, 2017), a Michigan federal district court issued a preliminary injunction requiring a Michigan city to allow an orchard owner to sell produce at its Farmer's Market even though he refuses on religious grounds to host same-sex weddings at his orchard.  After Country Mill posted its policy against hosting same-sex weddings on its Facebook page, the city amended its Farmer's Market Vendor Guidelines to require all vendors to comply with the city's civil rights ordinances not only at the Farmer's Market, but "as a general business practice." It denied Country Mill a vendor's license because of non-compliance with the public accommodation law which, among other things, prohibits publishing a statement that indicates a business will discriminate on the basis of sexual orientation.

The court found that Country Mill had shown a substantial likelihood of success on its First Amendment retaliation claim: The city took action chilling the orchard owner's speech about his religious beliefs. Plaintiff also showed a likelihood of success on his free exercise claim:

The context in which the Vendor Guidelines were amended and then applied to Country Mill supports Plaintiffs’ claim that their religious beliefs or their religiously motivated conduct was the target of the City’s actions.... [T]he City’s hostility to Plaintiffs’ religion or religious conduct was ... manifested when the City used its facially neutral and generally applicable ordinance to deny Plaintiffs’ Vendor Application.

ADF issued a press release on the decision, with links to some of the other pleadings in the case.

6th Circuit En Banc Upholds Invocations Offered By County Commissioners

In Bormuth v. County of  Jackson, (6th Cir., Sept. 6, 2017),  the U.S. 6th Circuit Court of Appeals sitting en banc in a 9-6 decision upheld the invocation practices of the Jackson County, Michigan 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.  Judge Griffin's majority opinion reasoned:

There is no support for [plaintiff's] granular view of legislative prayer. In this regard, neither Marsh nor Town of Greece restricts who may give prayers in order to be consistent with historical practice....

That the prayers reflect the individual Commissioners’ religious beliefs does not mean the Jackson County Board of Commissioners is “endorsing” a particular religion, Christianity or otherwise. For one, while all the Commissioners presumably believe in Jesus Christ, the faiths of Christianity are diverse, not monolithic. The Reformation of the Sixteenth Century spawned an explosion of Christian faiths. Many of those practicing these new Christian faiths sought religious freedom in America and found refuge from the tyranny inflicted by sectarian governments....

We do not know the religious faiths of the 2013-2014 Jackson County Commissioners. The nine “Christian” Commissioners may have included Roman Catholics, Southern Baptists, Mormons, Quakers, Episcopalians, Lutherans, Methodists, and others.

Judges Rogers and Sutton wrote concurring opinions.

Judge Moore's dissent argued:

In the case before us today, the majority is dangerously close to permitting exactly what Justice Alito said Town of Greece obviously does not permit—government officials instructing citizens to participate in sectarian prayer before commencing government proceedings. There is no daylight between polling place workers asking individuals to pray before casting their ballots, as in Justice Alito’s example, and county commissioners asking individuals to pray before participating in local government meetings, as actually happens in Jackson County. This similarity underscores why a tradition that protects the Town of Greece’s right to open its meetings with solemn and respectful prayers, which was targeted at legislators and offered by clergy or volunteers from a variety of faith traditions, does not protect Jackson County’s policy to restrict its legislative prayer practice to government officials themselves asking the public to participate in exclusively Christian prayer.

Judge White wrote a separate dissenting opinion. Courthouse News Service reports on the decision.

Jewish Woman Sues Restaurant Over Bacon In Veggie Omelet

Detroit Free Press reports that a lawsuit was filed last week in a Michigan state trial court against a Detroit area Denny's restaurant for including bacon in a vegetarian omelet.  Plaintiff Angela Montgomery is a practicing Jew who for religious reasons does not eat pork products.  Restaurant personnel had apologized to Montgomery, telling her that this was a mistake because the bacon container was next to the containers of vegetables.  A similar lawsuit was filed Aug. 22 by a Yemeni-American Muslim couple  against a Detroit area KFC that had mistakenly included bacon on their chicken sandwiches.

Free Exercise Claim Against Hospital Over Diet For Daughter Moves Ahead

In Dixon v. Department of Health and Human Services, (ED MI, Aug. 11, 2017), a Michigan federal district court allowed parents whose daughter was ordered hospitalized for mental health treatment to proceed with several claims.  Among them is a claim that the hospital is violating the parents' free exercise rights by feeding their daughter pork with knowledge of the family's religious beliefs.

Trinity Lutheran Decision Does Not Apply to Neutral Ban on Funds to Private Schools

As reported by the Detroit Free Press, a Michigan state Court of Claims judge held this week that the U.S. Supreme Court's Trinity Lutheran decision is not a basis for lifting a preliminary injunction issued earlier this month barring payment of $2.5 million the legislature had allocated to private schools to cover the cost of complying with state mandates. That injunction was based on a Michigan state constitutional provision that bars public funds for "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school".  In Council of Organizations and Others for Education About Parochiaid v. State of Michigan, (MI Ct. Cl., July 25, 2017), the court said in part:

... the Court concludes at this juncture that the constitutional provision at issue in this case, Article 8, § 2 of the Michigan Constitution, can be understood as falling within the category of neutral and generally applicable laws, rather than n provision that singles out the religious for disfavored treatment....  [T]his Court is disinclined to extend the Trinity Lutheran decision to a case that plainly does not involve express discrimination.

Suit Challenges Christian-Only Ownership Rules In Chautauqua Cottage Community

A discrimination lawsuit was filed in a Michigan federal district court last week against the Bay View Association, a Lake Michigan summer community with roots in the Chautauqua Movement. The complaint (full text) in Bay View Chautauqua Inclusiveness Movement v. Bay View Association of the United Methodist Church, (WD MI, filed 7/10/2017), challenges provisions in the Association's rules that limit cottage ownership to practicing Christians.  The suit contends that this is religious discrimination that violates the U.S. and Michigan constitutions, the federal Fair Housing Act, and Michigan's Elliott-Larsen Civil Rights Act.  Petoskey (MI) News-Review reports on the lawsuit.

Michigan Outlaws FGM In Package of Bills Signed By Governor

On July 11, Michigan Governor Rick Snyder signed a series of bills dealing with female genital mutilation. As summarized by the governor's press release:

The bill package amends various public acts to prohibit and prosecute those who perform female genital mutilation. Specifically, the bills prohibit performing genital mutilation, create criminal penalties for offenders, provide sanctions against healthcare licensees, require increased public education surrounding the topic and extend criminal and civil statutes of limitations.

One of the bills, HB 4636, outlaws FGM and provides:

It is not a defense to prosecution under this section that the person on whom the operation is performed, or any other person, believes that the operation is required as a matter of custom or ritual, or that the person on whom the operation is performed, or that person’s parent or guardian, consented to the operation.

HB 4642 requires the Department of Health and Human Services to:

Develop and administer an educational and outreach program that, at a minimum, informs the public, including members of new immigrant populations to this state that commonly practice female genital mutilation and health care providers, of the health risks and emotional trauma inflicted by the practice of female genital mutilation and the criminal penalties for female genital mutilation.

Suit Seeking U.S. Edit of Qur'an Dismissed As Frivolous

In Levay v. United States, (ED MI, July 11, 2017), a Michigan federal district court, adopting a magistrate's recommendation (LEXIS link), dismissed as frivolous a suit by a Jewish plaintiff  seeking a formal declaration that "Koranic Sharia Law" is incompatible with U.S. constitutional law. The suit also asks for the court to direct Congress to outlaw certain passages from the Qur'an, to issues a federally approved and edited version of the Qur'an, to withdraw tax exempt status from mosques that do not adopt this new version, and to establish a National Islamic Registry Program. The court said in part:

Levay’s suit seeks relief for the threat of violence that Islamic extremism poses to him and his community. But he does not allege injury to him personally, or an imminent, particularized threat of future injury.... Even if Levay did allege an actionable injury, the Court does not have the authority to direct Congress to legislate on an issue, much less vanquish the specter of religiously-motivated violence.... And, more fundamentally, Levay’s requests for a state-issued Koran, a national registry of Muslims, and financial sanctions for rogue mosques offend basic constitutional principles..... Levay does not have standing to bring suit and requests remedies which violate the Constitution.

UPDATE: In Levay v. United States, 2017 U.S. Dist. LEXIS 130138 (ED MI, Aug. 16, 2017), the court denied a motion by the plaintiff to amend the judgment.

Michigan Governor Vetoes Bill Requiring Pro-Life License Plate

On June 30, Michigan Governor Rick Snyder vetoed SB 163 (full text), a bill that would have required the state to issue a fund-raising "Choose Life" license plate, with proceeds to be distributed to crisis pregnancy centers and similar pro-life non-profits.  In his Veto Letter (full text), the Governor said in part:

... SB 163 is not about a license plate; it's about the State of Michigan making a political statement. And that statement arouses strong emotional reaction that divides the residents of this state.

Detroit Free Press reports on the governor's action and response to it.

Preliminary Injunction Refused: Settlement In Mosque Zoning Dispute Stands

In Youkhanna v. City of Sterling Heights, (ED MI, June 28, 2017), a Michigan federal district court refused to issue a preliminary injunction to prevent enforcement of a consent judgment entered into by the city of Sterling Heights.  The consent judgment allows the American Islamic Community Center to construct a mosque on land in the city.  Plaintiffs live near the mosque site.  Some are Chaldean Christians form Iraq and one is an Assyrian Christian from Syria.  They allege that their religious groups in Iraq and Syria have been subjected to violence by ISIS.  The court held that plaintiffs had not shown a likelihood of success on their constitutional and statutory claims regarding the validity of the consent judgment and the conduct of the meeting at which it was approved. (See prior related posting.)