Michigan Supreme Court Holds Ecclesiastical Abstention Doctrine Is Not Jurisdictional

In Winkler v. Marist Fathers of Detroit, Inc., (MI Sup. Ct., June 27, 2017), the Michigan Supreme Court held that the ecclesiastical abstention doctrine:

requires a case-specific inquiry that informs how a court must adjudicate certain claims within its subject matter jurisdiction; it does not determine whether the court has such jurisdiction in the first place.

The court explained:

What matters ...  is whether the actual adjudication of a particular legal claim would require the resolution of ecclesiastical questions....

With that understanding, the Supreme Court remanded the case to the Court of Appeals for it to decide whether Michigan's Persons With Disabilities Civil Rights Act applies to religious schools.  At issue in the case is a Catholic high school's denial of admission to a student who contends that the denial was because of her learning disability.

Female Genital Mutilation Case Expands

On June 21, federal authorities filed a Superseding Indictment (full text) adding two defendants in United States v. Nagarwala, (ED MI, 6/21/2017)-- the female genital mutilation case involving members of the Dawoodi Bohra Indian-Muslim community in the Detroit, Michigan area. (See prior posting).  According to the Detroit Free Press, the new defendants are Farida Arif and Fatema Dahodwala, two mothers who brought their daughters for the procedure to be performed.  This brings the total number of defendants to six. Prosecutors say there may have been up to 100 girls who were victims. The Free Press reports:

Lawyers involved in the case have said girls did not undergo female genital mutilation. They underwent a benign religious procedure, the lawyers have said.

“I am frankly appalled that the government would put these women through this,” said Dahodwala’s lawyer Margaret Sind Raben, who also has advised Arif’s family.

“Any mother who provided her child to Dr. Nagarwala or anyone else, for the purposes of this religious procedure, did so in absolute firm faith that this was required by their religion and that no permanent harm would come to their child,” Sind Raben said.

The new indictment charges various defendants with conspiracy to commit female genital mutilation, female genital mutilation, conspiracy to transport a minor with intent to engage in criminal sexual activity, conspiracy to obstruct an official proceeding, and making false statements to a federal officer.

UPDATE: Detroit Free Press June 24 reports on the controversy within the  Dawoodi Bohra sect between those who favor and those who oppose the practice of female genital cutting.

6th Circuit En Banc Hears Legislative Prayer Case

The U.S. 6th Circuit Court of Appeals sitting en banc yesterday heard oral arguments in Bormuth v County of Jackson (Docket No. 15-1869). (Audio of full oral arguments.)  In the case, a 3-judge panel of the 6th Circuit in a 2-1 decision held that the manner in which the Jackson County, Michigan Board of Commissioners opens its meetings with prayer violates the Establishment Clause.  (See prior posting.)

Two FGM Defendants Released On Bond

The Detroit Free Press reported yesterday that a federal district court judge has released on bond to house arrest a doctor and his wife who are facing conspiracy charges in the first prosecutions under the federal female genital mutilation statute. (See prior posting.) The paper reports in part:

Dr. Fakhruddin Attar, 53, of Farmington Hills, is accused of letting another doctor use his clinic to perform genital cutting procedures on two 7-year-old Minnesota girls; his wife, Farida Attar, 50, is accused of holding the girls' hands during the procedure to keep them from squirming and to calm them.

Defense lawyers have claimed the Attars did not engage in any criminal  act, and that the procedure at issue is a protected religious rite-of-passage that involved no cutting....

Assistant U.S. Attorney Sara Woodward dropped a bombshell in court today in telling Friedman that the government believes the defendants have subjected as many as 100 victims to the procedure.

The primary defendant,  Dr. Jumana Nagarwala who is accused of performing the procedures remains in jail pending trial.

6th Circuit: Religious School Not Substantially Burdened By Relocation Denial

In Livingston Christian Schools v. Genoa Charter Township, (6th Cir., June 2, 2017), the U.S. 6th Circuit Court of Appeals dismissed a RLUIPA claim by a Christian school that was denied a special use permit needed for it to relocate.  The school had concluded that remaining in its present location on a long-term basis would end in the dissolution of the school from lack of enrollment and income.  However the Court held as a matter of law that the denial of the permit did not impose a "substantial burden" on the school:

LCS has not alleged that any functions of its religious school were unable to be carried out on the [current] property. LCS focuses on increasing enrollment and raising revenue, but has not identified any religious activity—or even any traditionally secular one—that could not be performed at the [current] property.

The school had also complained that it was burdened because there was no other suitable property in Genoa Township for it to use. But the court disagreed, saying in part:

... [T]he boundaries of jurisdictions on the local-government level are often arbitrary in practice. Holding that a religious institution is substantially burdened any time that it cannot locate within such a small area—even if it could locate just across the border of the town limits—would be tantamount to giving religious institutions a free pass from zoning laws. 

Farmers' Market's Exclusion of Vendor Over Same-Sex Marriages Views Is Challenged

A suit was filed on Wednesday in a Michigan federal district court challenging on 1st and 14th Amendment grounds the City of East Lansing's Vendor Guidelines for its Farmers' Market. The complaint (full text) in Country Mill Farms, LLC v. City of East Lansing, (WD MI, filed 5/31/2017), claims that the city modified its Guidelines to target Country Mill Farms because its owner, Stephen Tennes, shared on Facebook his Catholic belief opposing same-sex marriage.  Tennes posted that while his Farm hosts weddings, it only hosts those that conform to his belief that marriage is a sacramental union between one man and one woman. Following this post, city officials unsuccessfully attempted to pressure Country Mill to end its participation in the Farmer's Market.  When that was unsuccessful, the city changed its Guidelines to require all Farmers' Market participants to abide by the city's Civil Rights Ordinance both while at the market and as a general business practice.  The complaint also alleges that this is an attempt by the city to extend the reach of its ordinances beyond its borders in violation of the Michigan Home Rule City Act.  ADF issued a press release announcing the filing of the lawsuit.

Suit Charges Dearborn Pizza Store With Serving Pepperoni As Halal

Detroit Free Press reports on a class action lawsuit filed yesterday in a Michigan state trial court against Little Caesars claiming that the chain's pizza store in Dearborn placed pizza topped with pork-based pepperoni in boxes marked Halal.  The suit which seeks $100 million in damages says that plaintiff Mohamad Bazzi has encountered the problem twice, once in March and once this week. Plaintiff claims breach of contract, negligent misrepresentation, unjust enrichment and fraud.  Bazzi's attorney says the suit was filed rapidly ahead of Ramadan which begins this evening so that other Muslims would not accidentally eat pork from the pizza outlet during the holy days.

Magistrate Denies Bond In Female Genital Mutilation Prosecution

In Detroit yesterday a federal magistrate denied bond to two defendants charged with female genital mutilation (see prior posting), rejecting their attorney's claim that this is "part of a deeply held and longstanding religious tradition" of  the Indian-Muslim Dawoodi Bohra sect.  U.S. Magistrate Elizabeth Stafford commented that the defense is using religion "as a shield." The Detroit Free Press, reports:

The case involves  Dr. Fakhruddin Attar, 53, and his wife, Farida Attar, 50,  who were arrested April 21 at the Burhani Medical Clinic in Livonia, where prosecutors allege two Minnesota girls had their genitals cut in February. Attar is accused of letting another doctor use his clinic to perform the cuttings; his wife is accused of holding the girls' hands during the procedures to "comfort them."

The accused cutter is  Dr. Jumana Nagarwala, who was arrested April 12 and indicted last week in what is the the nation's first federal prosecution of genital cutting.  The FBI and prosecutors believe she has several more victims and claim that  she and her co-defendants have told others in their religious community to keep quiet about the secretive ritual.

MLive, reporting on the hearing, says:

Mary Chartier, the attorney for Fakhruddin Attar, said at Wednesday's hearing she intends to challenge the constitutionality of the 1997-passed federal law that bans genital mutilation on grounds that the ban is vague, overreaching and violates religious freedom. 

She noted that male circumcision, which also has religious origins -- but is seen by some as practical for hygienic reasons --  is legal while a similar procedure for girls is not.

3 Indicted In Detroit On Charges of Female Genital Mutilation

On Thursday, the U.S. Attorney's Office for the Eastern District of Michigan announced the arrest of a Detroit physician and his wife on charges of violating the federal ban on female genital mutilation. (Full text of criminal complaint.) Fakhruddin Attar and his wife Farida were charged with conspiring with Dr. Jumana Nagarwala who was arrested earlier this month in Detroit and ordered detained on pending trial. (Press release and criminal complaint in Nagarwala case.) As reported yesterday in a background article in the Detroit Free Press:

All three defendants  belong to a small, Indian-Muslim community known as the Dawoodi Bohra, whose members say genital cutting is a deeply entrenched social and cultural norm, with some women viewing it as normal as having a period. Celebration parties are held after the cuttings, and the women and girls are supposed to keep it a secret. One of the key reasons for the procedure, victims say, is to curb a woman's sexuality.

According to an earlier Detroit Free Press report:

Nagarwala has claimed through her lawyer that she did not engage in any actual cutting, but rather that she removed a membrane from the genital area using a "scraper" and gave it to the parents to bury in the ground as part of a religious custom within  the Dawoodi Bohra community.

On Friday, Anjuman-e-Najmi Detroit, an umbrella organization for the Dawoodi Bohra community in Detroit, issued a statement reading in part:

The Dawoodi Bohras do not support the violation of any U.S. law, local, state or federal.  We offer our assistance to the investigating authorities. Any violation of U.S. law is counter to instructions to our community members.  It does not reflect the everyday lives of the Dawoodi Bohras in America.

Apparently these are the first defendants charged under 18 USC 116 prohibiting female genital mutilation.

Pastor's Suit Dismissed Under Ecclesiastical Abstention Doctrine

In Speller v. St. Stephen Lutheran Church of Drayton Plains, (MI App., March 28, 2017), the Michigan Court of Appeals applied the ecclesiastical abstention doctrine to dismiss a suit brought by a Lutheran pastor challenging actions that forced his resignation from St. Stephen's Lutheran Church. He claims this led to his "blacklisting" in the church and his inability to practice his profession.  The court rejected plaintiff's argument that it should decide the case using neutral principles of law, instead of dismissing it, saying in part:

His tort and breach of contract claims arose in the context of St. Stephen’s decision whether to retain plaintiff as its pastor and the LCMS and Reverend Maier’s decision whether to retain plaintiff as a minister on the LCMS synodical roster. Resolution of these claims would necessarily require the trial court to inquire into the propriety of those decisions and defendants’ conduct relative to those decisions, which clearly relate to internal church matters, including church discipline, church governance, and plaintiff’s employment as a Lutheran pastor. These issues would require the court to impermissibly stray into ecclesiastical polity.

City's Settlement of Mosque Litigation Challenged By New Lawsuit

As previously reported, last month the city of Sterling Heights, Michigan reached settlements in two related lawsuits challenging the city's denial of a land use application filed by an Islamic group that wants to construct a mosque on five adjoining lots in the city. Now several individuals have filed a federal lawsuit challenging the settlement.  The complaint (full text) in Youkhana v. City of Sterling Heights, (ED MI, filed 3/13/2017), seeks a declaration that the settlement is invalid and unenforceable. It contends that the city violated plaintiffs' 1st, 4th and 14th Amendment rights, including the Establishment Clause, in the procedures used at the City Council meeting considering the settlement.  It also claims a violation of the Michigan Open Meetings Act. the complaint describes the procedures used at the meeting as follows:

The City ... (1) adopted an ad hoc rule that limited speakers wanting to address the Consent Judgment agenda item to just 2 minutes, thereby severely limiting Plaintiffs’ right to express their views at this public hearing, even though the Mayor allowed other speakers addressing less controversial matters that evening to speak at great length; (2) prohibited certain views based on their content and viewpoint (i.e., no one was permitted to mention religion or even hint at it when discussing the Consent Judgment matter, and certainly no one was permitted to make any statement that might be deemed critical of Islam); (3) directed the City police to seize individuals and escort them out of the meeting if the Mayor opposed what they were saying about the Consent Judgment matter; and (4) ordered the citizens out of the public meeting when it came time to actually vote on the Consent Judgment.

Detroit News reports on the lawsuit.

Handling of Vaccination Exemption Request Did Not Violate Religious Rights

In Nikolao v. Lyon, (ED MI, Feb. 23, 2017), a Michigan federal district court dismissed free exercise and establishment clause challenges to the manner in which the Wayne County, Michigan Health Department handled a mother's request for an exemption for her children from the public school vaccination requirement.  Michigan law permits an exemption on the basis of a parent's religious convictions or alternatively on the basis other objections to  immunization. A 2014 Administrative Rule added the requirement that before an exemption will be granted, the parent must receive education  from the local health department on the risks of not receiving vaccinations.  The health department has prepared materials for its employees to use in attempting to persuade parents to allow vaccination, including materials to counter religious objections.

Plaintiff claims that if she wanted a religious waiver, she was required to explain her religious beliefs and discuss them with a health department nurse.  When she refused, she was granted an exemption on the non-religious ground that "mom wants child to have natural immunity."  Plaintiff contended that this deprived her of her religious and moral responsibility to object on account of her religion. Rejecting plaintiff's free exercise claim, the court said:

At most what Plaintiff alleges is that she was exposed to “coercion” to violate her beliefs regarding immunization for her children and “filled with lies about her faith from health department employees.” Plaintiff, however, did not yield to the nurses’ alleged pressure or lies and agree to immunize her children. She left the health department with the required and completed immunization waiver forms.

Settlements In Mosque's and DOJ's Suits Against Michigan City

Detroit Free Press reported yesterday that settlements have been reached in two related lawsuits against the city of Sterling Heights, Michigan over the city's denial of Special Approval Land Use application that would have allowed the American Islamic Community Center to construct a mosque on five adjoining lots in the city. One suit was brought by the Islamic Center, while the other was filed by the Department of Justice. (See prior posting.)  The settlement requires the city to allow the mosque to be built, but calls for the height of the mosque's dome and spires to be reduced by approximately two feet. No amplified outdoor sound-- including the Muslim call for prayer-- will be permitted.  Parking will be allowed only in the mosque's parking lot.  The financial arrangements in the Islamic Center's suit are unclear.  The settlement calls for the city to pay a $350,000 deductible to its insurance carrier. A Department of Justice press release yesterday says that the settlement also calls for the city to publicize its nondiscrimination policies, undergo RLUIPA training, and report periodically to the Department of Justice. The settlements must still be approved by the court.

6th Circuit: County Board's Prayer Practice Violates Establishment Clause

In Bormuth v. County of Jackson, (6th Cir., Feb. 15, 2017), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that the manner in which the Jackson County, Michigan Board of Commissioners opens its meetings with prayer violates the Establishment Clause.  The majority held that the County Commissioners went beyond that permitted by the Supreme Court's Town of Greece decision.  Plaintiff in the case was Peter Bormuth who described himself as a Pagan and an Animist. When during the public comment period at one meeting Bormuth complained that the invocation practice violated the Establishment Clause, one of the Commissioners "made faces expressing his disgust" and then turned his chair around so he would not look at Bormuth while he spoke.

Judge Moore's majority opinion said in part:

A combination of factors distinguishes this case from the practice upheld in Marsh and Town of Greece, including one important factor: the identity of the prayer giver.... Here, the Jackson County Commissioners give the prayers.... The difference is not superficial. When the Board of Commissioners opens its monthly meetings with prayers, there is no distinction between the government and the prayer giver: they are one and the same....

Because they are the ones delivering the prayers, the Commissioners—and only the Commissioners—are responsible for the prayers’ content.... And because that content is exclusively Christian, by delivering the prayers, the Commissionersare effectively endorsing a specific religion....

What is more, the prayer givers are exclusively Christian because of an intentional decision by the Board of Commissioners.... [A]t least one Jackson County Commissioner admitted that, in order to control the prayers’ content, he did not want to invite the public to give prayers....

First, the Board of Commissioners directs the public to participate in the prayers at every monthly meeting.... Second, the Board of Commissioners has singled out Bormuth for opprobrium. During a public meeting, a Commissioner stated that Bormuth’s lawsuit was an "attack on Christianity and Jesus Christ, period."...

Third, Bormuth has submitted evidence suggesting that the Board of Commissioners has “allocated benefits and burdens based on participation in the prayer.” ... Shortly after Bormuth filed his complaint, Jackson County officials nominated members for the County’s new Solid Waste Planning Committee from a pool of applicants.... Although Bormuth had three years of experience working on related issues, the Board of Commissioners did not nominate him.

Judge Griffin filed a lengthy dissenting opinion. AP reports on the decision.

Community Room Policy Excluding Worship Held Unconstitutional

In His Healing Hands Church v. Lansing Housing Commission, (WD MI, Feb. 8, 2017), a Michigan federal district court held unconstitutional a Housing Commission policy that allows outside groups to use community rooms in housing projects, except for religious purposes, worship, or activities.  The court concluded that "the Housing Commission’s policy constitutes impermissible viewpoint discrimination."

UPDATE: An ADF press release points out that this decision makes permanent a preliminary injunction issued in the case last year.

U.S. Sues Sterling Heights, Michigan Over Zoning Denial For Mosque

The Department of Justice announced yesterday that it has filed suit against the city of Sterling Heights, Michigan claiming that the city violated the Religious Land Use and Institutionalized Persons Act by denying a Special Approval Land Use application that would have allowed construction of a mosque on five adjoining lots in the city.  The complaint (full text) in United States v. City of Sterling Heights, (ED MI, filed 12/15/2016), alleges that this is the only special use application for a house of worship that has been denied by the city since 2006.  The mosque became the subject of opposition framed in anti-Muslim terms, and also became a local election issue especially among local Chaldean Christian business owners. Click On Detroit reports on the lawsuit.

This is the second RLUIPA suit filed this week by the Justice Department over denials of land use permits for a mosque. (See prior posting.)

First Grade Teacher's Age Discrimination Suit Dismissed Under Ministerial Exception

In Ciurelo v. St. Regis Parish, (ED MI, Oct. 7, 2016), a Michigan federal district court held that federal (ADEA) and state (ELCRA) age discrimination claims brought by a former 1st grade teacher in a Catholic school are barred by the ministerial exception doctrine. The teacher's contract was not renewed after eight years of teaching. Finding that plaintiff was the type of employee to whom the doctrine applies, the court said in part:

While this Court has considered all the factors identified in the Hosanna-Tabor majority opinion, it concludes that the paramount factor of religious function ... provides the decisional pathway here. Plaintiff was unquestionably engaged in two important religious functions on a daily basis: religious teaching for 20 to 30 minutes and leading the morning prayers. These activities are the hallmark of religious exercises through which religious communities transmit their received wisdom and heritage to the next generation of believers. The First Amendment provides a shield to the church and her officials against a secular government’s incursion by way of its employment-law litigation process, which may undermine the freedom to appoint those entrusted with such matters of faith.

Two RLUIPA Suits Over Rezoning For Islamic School Are Settled

According to the Ann Arbor News, Pittsfield Township, Michigan yesterday reached agreements to settle two related RLUIPA lawsuits challenging the township's refusal to rezone a vacant parcel of land for construction of a pre-K through 12 school by the Michigan Islamic Academy. One suit was brought by the Justice Department (see prior posting). The Consent Order (full text), which must still be approved by the court, is described in a DOJ press release:

As part of the settlement, the township has agreed to permit MIA to construct a school on the vacant parcel of land, to treat the school and all other religious groups equally and to publicize its non- discrimination policies and practices [by signage and on the Internet].  The township also agreed that its leaders and various township employees will attend training on the requirements of RLUIPA.  In addition, the county will report periodically to the Justice Department.

The other suit was brought by the Michigan Islamic Academy (see prior posting).  In settling that suit, Pittsfield Township's insurers will pay $1.7 million in damages and attorneys' fees.  CAIR-MI described this as "one of the largest-ever RLUIPA settlements."  As part of the settlement, Michigan Islamic Academy agreed to add a residential development with "significant landscape buffering" between the school and adjacent residential lots.

RFRA Protects Funeral Home's Gender Stereotyping of Transgender Employee

In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., (ED MI, Aug. 18, 2016), 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 engaged in gender stereotyping when it dismissed a transgender employee (funeral director/embalmer) who was in the process of transitioning from male to female. In a previous opinion in the case, the court held that Title VII does not bar discrimination on the basis of gender identity.  However the court permitted the EEOC to proceed on the theory that the employee was dismissed for refusing to comply with the funeral home's dress code for male employees.  Citing Hobby Lobby, the court held that the funeral home can assert religious rights under RFRA. The court then said:

Rost [the funeral home's owner] believes “that the Bible teaches that God creates people male or female.”... He believes that “the Bible teaches that a person’s sex is an immutable God-given gift and that people should not deny or attempt to change their sex.”... Rost believes that he “would be violating God’s commands” if he were to permit one of the Funeral Home’s funeral directors “to deny their sex while acting as a representative of [the Funeral Home]. This would violate God’s commands because, among other reasons, [Rost] would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” ...

The court went on to say that even if the government has a compelling interest in preventing discrimination, it has not chosen the least restrictive means of doing so.  It explained:

If the EEOC truly has a compelling governmental interest in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral Home, couldn’t the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here?

Detroit News reports on the decision. [Thanks to Jeff Pasek for the lead.]

Suit Challenges Michigan's Attempt To Dissuade Assertion of Religious Objection To Immunizations

In Michigan yesterday, the mother of four children filed a federal lawsuit challenging Michigan's rules regarding exemption from the state's immunization requirements for school children.  Mich. Comp. Laws § 333.9215 allows parents to obtain an exemption from the requirements by presenting school officials a written statement "to the effect that the requirements ... cannot be met because of religious convictions or other objection to immunization." The state Department of Health and Human Services (HHS) in 2014 adopted a rule (R 325.176(12)) requiring that any request for a non-medical exemption be certified by the local health department after giving the parents warning of the risks of their child not receiving vaccines.

The complaint (full text) in Nikolao v. Lyon, (ED MI, filed 7/7/2016), alleges that HHS has furnished local employees with a "Religious Waiver Note" providing them guidance on how to convince those with religious objections to nevertheless allow their children to be immunized. Plaintiff, a Catholic, contends that the Note contains misrepresentations about Catholic beliefs as to vaccination. She alleges further that when she went to the Wayne County health department to obtain certification of her religious objections, employees insisted that she needed to declare what religion she practices, explain her religious beliefs, and engage in a back and forth discussion with the ... nurse concerning her religious objection...." The complaint goes on:

54. Defendants attempted to use Mrs. Nikolao’s beliefs and adherence to Papal authority to coerce her into vaccinating her children by telling her lies about the Catholic faith and untrue Papal statements.

55. In the end ... Defendants refused to give Mrs. Nikolao a religious exemption, requiring her to mask her religious beliefs in the shroud of an “other” objection.

56. This façade on its own violated Mrs. Nikolao’s religion since, as a Catholic, she has a “grave responsibility . . . to make a conscientious objection with regard to those [vaccines] which have moral problems.”

Plaintiff claims that this violated her free exercise rights under the state and federal constitutions, the Establishment Clause and Michigan statutory law.  The Thomas More Law Center issued a press release announcing the filing of the lawsuit.