6th Circuit En Banc Dismisses Mask Mandate Challenge As Moot

In Resurrection School v. Hertel, (6 Cir., May 25, 2022), an en banc panel of the U.S. 6th Circuit Court of Appeals held by a vote of 13-1-3 that a free exercise challenge to Michigan's COVID mask mandate for school children is moot. The mandate is no longer in effect. The suit was brought by a private religious school and two parents of school children. One judge concluded that the preliminary injunction appeal moot, but the proceedings for a declaratory judgment and permanent injunction are not. The majority said in part:

For all the reasons recited above—the changed circumstances since the State first imposed its mask mandate, the substantially developed caselaw, the lack of gamesmanship on the State’s part—we see no reasonable possibility that the State will impose a new mask mandate with roughly the same exceptions as the one originally at issue here. This claim is moot—indeed palpably so.

Judge Bush in a 31-page dissent joined by two other judges said in part:

[T]he majority’s decision to declare the entire case against MDHHS moot—rather than simply deciding the preliminary-injunction appeal—has stripped us of a valuable opportunity to clarify the law of our circuit. What the majority should have done, instead, is rule solely on the interlocutory order before us.

Fox2 Detroit reports on the decision.

Certiorari Denied In Synagogue Picketers Case

On May 16, the U.S. Supreme Court denied review in Gerber v. Herskovitz, (Docket No, 21-1263, certiorari denied, 5/16/2022) (Order List). In the case, the U.S. 6th Circuit Court of Appeals dismissed a suit by synagogue members against anti-Israel pickets who have picketed services at the Beth Israel Synagogue in Ann Arbor, Michigan every week since 2003. (See prior posting).

Appeals Court Asked To Dismiss Michigan Abortion Law Challenge

As previously reported, In Planned Parenthood of Michigan v. Attorney General of the State of Michigan, the Michigan Court of Claims issued a preliminary injunction barring enforcement of the state's 1931 pre-Roe abortion ban while a challenge to that law under the Michigan state constitution is being litigated. On Friday, instead of filing an appeal in that case, plaintiffs filed a Complaint (full text) with the Michigan Court of Appeals captioned In re Jarzynka, (Ct. App., filed 5/20/2022) seeking an Order of Superintending Control and filed a Motion for Immediate Consideration.  In the Complaint, petitioners allege:

Judge Gleicher refused to dismiss the case for lack of jurisdiction even though the Attorney General—a preeminent supporter of abortion rights—admits there is no adversity between the parties or actual controversy because the Attorney General refuses to defend or enforce the challenged law. The ACLU and Planned Parenthood’s claims are obviously moot and not ripe.

Prosecutors Jarzynka and Becker, Right to Life of Michigan, and the Michigan Catholic Conference respectfully ask this Court to issue an order of superintending control requiring the Hon. Elizabeth Gleicher of the Court of Claims to dismiss the case for lack of jurisdiction. Doing so will not prevent other adverse cases from moving forward.... 

At a minimum, Prosecutors Jarzynka and Becker, Right to Life of Michigan, and the Michigan Catholic Conference respectfully ask the Court to issue an order vacating the preliminary injunction order and requiring Judge Gleicher to adhere to the objective appearance-of-impropriety standard and recuse herself.

ADF issued a press release announcing the filing.

State Court Enjoins Enforcement Of Michigan's Pre-Roe Abortion Ban

In Planned Parenthood of Michigan v. Attorney General of the State of Michigan, (MI Ct. Cl., May 17, 2022), the Michigan Court of Claims issued a preliminary injunction barring enforcement of the state's 1931 pre-Roe abortion ban while a challenge to that law under the Michigan state constitution is being litigated. The 1931 ban contains an exception only for preserving the life of the mother. The court said in part:

After 50 years of legal abortion in Michigan, there can be no doubt but that the right of personal autonomy and bodily integrity enjoyed by our citizens includes the right of a woman, in consultation with her physician, to terminate a pregnancy. From a constitutional standpoint, the right to obtain a safe medical treatment is indistinguishable from the right of a patient to refuse treatment. Based on the due process principles discussed above, the Court finds a substantial likelihood that MCL 750.14 violates the Due Process Clause of Michigan's Constitution.

ACLU of Michigan issued a press release announcing the decision.

Two Suits Challenge Michigan's 1931 Abortion Ban

Planned Parenthood and a Michigan abortion provider filed suit yesterday in the Michigan Court of Claims seeking to invalidate Michigan's 1931 statute that outlaws all abortions, except those necessary to save the life of the pregnant woman.  The complaint (full text) in Planned Parenthood of Michigan v. Attorney General of the State of Michigan, (Ct.Cl., filed April 7, 2022), contends that the statute violates various provisions of the Michigan Constitution.  ACLU issued a press release announcing the lawsuit. Even though Attorney General Dana Nessel is named as defendant in the lawsuit, she issued a statement saying in part:

I will not use the resources of my office to defend Michigan's 1931 statute criminalizing abortion.

WMUK expands on Nessel's position:

She says her office would not defend the abortion ban using a process that assigns teams of attorneys to argue both sides of a legal controversy. Nessel says she would only do that if ordered to by a court. “I will not enforce it and neither will I defend it,” she said. “I will take no part in driving women back into the dark ages and into the back alleys.”

Nessel says she will leave it up local prosecutors to defend their ability to enforce an abortion ban in their counties if they want to do that. And the Democratic attorney general says she would not object if Republicans in the Legislature want to join the case and take on the role of defending the state’s abortion ban.

Meanwhile, yesterday Michigan Governor Gretchen Whitmer filed another lawsuit challenging the 1931 abortion ban. A press release from her office, describing the lawsuit, says in part:

Today, Governor Gretchen Whitmer filed a lawsuit and used her executive authority to ask the Michigan Supreme Court to immediately resolve whether Michigan’s Constitution protects the right to abortion....

The lawsuit asks the court to recognize a constitutional right to an abortion under the Due Process Clause of the Michigan Constitution.  It also asks the court to stop enforcement of the 1931 Michigan abortion ban. The abortion ban violates Michigan’s due process clause, which provides a right to privacy and bodily autonomy that is violated by the state’s near-total criminal ban of abortion. It also violates Michigan’s Equal Protection Clause due to the way the ban denies women equal rights because the law was adopted to reinforce antiquated notions of the proper role for women in society.

Michigan City Violated RLUIPA In Applying Special Requirements On Places Of Worship

In United States v. City of Troy, (ED MI, March 18, 2022), a Michigan federal district court enjoined the city of Troy, Michigan from enforcing its zoning ordinance that imposes stricter setback and parking standards on places of worship than it does on non-religious uses in the same zoning district. The Zoning Board of Appeal refused to grant a variance from these requirements to the Islamic Adam Community Center. The court held that the city had violated the "equal terms" provisions of RLUIPA, saying in part:

While it may be true that places of worship do cause some of the negative impacts to which Troy refers—a high number of visitors, traffic influxes during short periods of time, safety considerations due to increased traffic, and nuisances such as increased noise, light, or exhaust fumes—Troy fails to provide evidence as to how exactly these concerns are unique with respect to places of worship and not similar institutions such as schools or banquet halls.

The court also concluded that the city had violated the "substantial burden" provisions of RLUIPA.  [Thanks to John Kulesz for the lead.]

Cert. Filed In Synagogue Picketing Case While Plaintiffs Are Ordered To Pay $158K Attorneys' Fees Of Picketers

A petition for certiorari (full text) was filed recently in Brysk v. Herskovitz, (Sup. Ct., filed Jan. 19, 2022). In the case, the U.S. 6th Circuit Court of Appeals dismissed a suit by synagogue members against anti-Israel pickets who have picketed services at the Beth Israel Synagogue in Ann Arbor, Michigan every week since 2003.  A majority held that the picketers were protected by the First Amendment. (See prior posting.)

Meanwhile, a Michigan federal district court ordered plaintiffs in the case to pay defendants' attorneys' fees of $158,721.75. Gerber v. Herskovitz, (ED MI, Jan. 25, 2022). The court said in part:

The Court is aware that awarding attorney fees to defendants under §1988 may have a chilling effect on the willingness to bring legitimate civil rights claims, and it acknowledges that “awarding attorney fees against a nonprevailing plaintiff in a civil rights action is ‘an extreme sanction, and must be limited to truly egregious cases of misconduct.’” ... However, this is that rare case where such an award is appropriate and warranted. Plaintiffs failed to allege a basic element for each of their claims; their claims were groundless from the outset. As Judge Clay observed, it is “clear that [Plaintiffs brought] this suit to ‘silence a speaker with whom [they] disagree,’” which the First Amendment does not permit....

MLive and JTA report on the decision.

High Schooler Sues Over Suspension For Religiously Motivated Anti-Gay Remarks

 A Michigan high school student sued this week for injunctive and declaratory relief as well as damages contending that his 3-day suspension violated his free speech rights as well as various other rights under state law and the Michigan and U.S. constitutions.  The school contended that the student had violated the school's Bullying/ Cyberbullying/ Harassment policy.  The complaint (full text) in Stout v. Plainwell Community Schools, (WD MI, filed 1/27/2022), alleges that:

Plaintiff is a Christian, who adheres to the historic and traditional Christian doctrine contained in the Bible regarding all life issues, including homosexual conduct....

According to the complaint, school officials told plaintiff's parents that their student:

was accused of “laughing” at some racial and homophobic “jokes” that other kids had told during the summer band camp months ago; that he had participated in an off campus, private group chat/text session during which he texted that God would not accept homosexual conduct because it is a sin; and that he had private, on campus conversations regarding religious beliefs with friends in the band that, while not directed towards any particular person, was overheard by another student.

MLive reports on the lawsuit.

Michigan Settles Suit Over Placement Policy Of Catholic Adoption Agency

 A Michigan federal district court this week in Buck v. Hertel,(WD MI, Jan. 26, 2022), issued an Order implementing a settlement agreement between the state of Michigan and St. Vincent Catholic Charities which is a licensed child placement agency placing children for foster care and adoption. The Order provides in part:

MDHHS shall not take any action against St. Vincent’s CPA license or terminate or not renew the Contracts because St. Vincent does not: i. certify or approve a same-sex or unmarried couple as a foster parent or adoptive parent, or ii. conduct a home evaluation for a same-sex or unmarried couple, or iii. place a foster child with a same-sex or unmarried couple for foster care or adoption.

Under the settlement, the state also agreed to pay St. Vincent's attorneys' fees of $550,000. As reported by Fox 47 News, the state agreed to the settlement after the U.S. Supreme Court's decision in Fulton v. City of Philadelphia

Ann Arbor, Michigan City Council Condemns Synagogue Picketers

The Ann Arbor, Michigan City Council on January 18 adopted a Resolution Condemning Antisemitism (full text) which explicitly condemns a group of individuals who have picketed the local Conservative synagogue every Saturday for the last 18 years.  The Resolution reads in part:

Whereas, A small group has picketed the Beth Israel Congregation, an Ann Arbor synagogue, every Saturday for 18 years, erecting antisemitic signs along the Washtenaw Avenue right-of-way including those that allege conspiracy and tarnish the Star of David, creating an atmosphere of hate;

RESOLVED, That the Ann Arbor City Council condemns all forms of antisemitism, and in particular the weekly antisemitic rally on Washtenaw Avenue; calls upon the persons who rally to express antisemitism on Washtenaw Avenue to renounce extremism, disband, and cease their weekly show of aggressive bigotry; and declares its support for the Beth Israel Congregation, their guests, and all members of the Jewish Community in Ann Arbor, each of whom has the right to worship, gather, and celebrate free from intimidation, harassment, and fear of violence.

Last year, the U.S. 6th Circuit Court of Appeals dismissed a suit against the picketers finding that their actions are protected by the 1st Amendment. (See prior posting.) MLive has a detailed report on the Council meeting at which the resolution was adopted.

6th Circuit Tells District Court To Reconsider Injunction Denial Against School Mask Order

In Resurrection School v. Hertel, (6th Cir., Jan, 12, 2022), the U.S. 6th Circuit Court of Appeals vacated a Michigan federal district court's denial of a preliminary injunction against Ingham County, Michigan's COVID order requiring elementary school students, including those in religious schools, to wear masks in the classroom. It sent the case back to the district court for it to reconsider  the question of whether parents of religious school students are entitled to an injunction pending appeal. The court based its order on the fact that the district court relied on a 6th Circuit decision that was subsequently vacated by an en banc order.

"Spiritual Distress" From Employer's Vaccine Mandate Is Not "Irreparable Injury"

In Romano v. Blue Cross Blue Shield of Michigan, (ED MI, Jan. 3, 2022), a Michigan federal district court denied a preliminary injunction to an employee who was to be fired because he refused to comply with his employer's COVID vaccine mandate.  Plaintiff's refusal was based on religious objections and he claimed the employer's denial of his request for a religious exemption violated Title VII, the Michigan Elliot-Larsen Civil Rights Act, the Free Exercise Clause and the Michigan Constitution. However, the court concluded that plaintiff did not meet the "irreparable injury" requirement necessary to support an injunction.  The court said in part:

Plaintiff claimed that his damages are irreparable because he will be fired, lose prestige and seniority, have his reputation marred, and suffer "spiritual distress."... But none of the alleged harms are irreparable....

Although the Court is sympathetic to religious persons who must confront the "impossible choice," Plaintiff never developed a sound legal argument for why the injury attributable to "impossible choice" is irreparable.... Plaintiff instead cited cases that enjoined government COVID19 vaccine mandates—not private COVID-19 vaccine mandates.... As Judge Pittman noted in a similar case, although "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury," the First Amendment does not apply to private companies like Defendant....

Going forward, other plaintiffs may have an avenue for injunctive relief in Title VII COVID-19 vaccine mandate cases based on stronger legal arguments and facts.... Yet it is not the Court's role to advance legal and factual arguments for litigants; the Court resolves disputes based on the arguments that litigants assert.

National Law Review reports on the decision.

HHS Rescinds Trump Era Religious Exemptions For Child Welfare Agencies In Three States

Yesterday, the Department of Health and Human Services announced that it is rescinding waivers of non-discrimination requirements issued during the Trump Administration to South Carolina, Texas and Michigan, along with certain child welfare agencies in those states. The waivers allowed faith-based foster care placement agencies to receive federal funds even though they select foster parents on the basis of religion. (See prior posting.) In its release yesterday, HHS summarized the background for its action:

Through these waivers, States and child welfare agencies – including States and organizations that did not make such requests - were granted exemptions from program nondiscrimination requirements in a rule that was not in effect. In taking today's actions, HHS is reestablishing its long-standing Department practice of evaluation of religious exemptions and modifications of program requirements on a case-by-case basis, as needed, and as is required by law—which was unprecedently changed in 2017 by the previous Administration. Today, HHS reaffirms its important commitment to core American values:  HHS will not condone the blanket use of religious exemptions against any person or blank checks to allow discrimination against any persons, importantly including LGBTQ+ persons in taxpayer-funded programs.

6th Circuit Grants En Banc Review Of Catholic School's Challenge To Mask Order

In Resurrection School v. Hertel, (6th Cir., Nov. 10, 2021), the U.S. 6th Circuit Court of Appeals vacated the 3-judge panel opinion and granted en banc review. The panel decision, by a 2-1 vote, upheld  Michigan's previous COVID-19 mask order for schools.  The court affirmed the denial of a preliminary injunction sought by a Catholic elementary school, concluding that the order was neutral and generally applicable. (See prior posting.) AP reports on yesterday's action by the court.

6th Circuit: Prison Cannot Just Fail To Respond To Inmate's Religious Requests

In Byrd v. Haas, (6th Cir., Nov. 9, 2021),the U.S. 6th Circuit Court of Appeals reversed a Michigan federal district court's dismissal of RLUIPA, free exercise, equal protection and due process claims brought by an inmate who sought to worship with other inmates of the Ifa faith and to obtain certain religious items for worship. The court said in part:

Between his conversion to the Ifa faith in August 2015 and filing this lawsuit more than two years later, Byrd sent four requests for Ifa group services and nine items that he considers essential to the Ifa faith. These items include, among other things, a straw mat for prayer, herbs, and more beads. How did the Department respond to these requests? It didn’t. Not one made its way to McKee [Deputy Director of the Department of Corrections] for a final decision. And since this lawsuit began, Byrd has filed a fifth request. But the Department hasn’t fully resolved that request either....

... [A] government agency cannot simply end-run judicial review by sitting on its hands and allowing a claimant’s request to languish in a bureaucratic black hole. 

Catholic School Parents Lose Challenge To School Mask Requirement

In  Resurrection School v. Hertel, (WD MI, Nov. 3, 2021), a Michigan federal district court refused to issue a preliminary injunction against a county health department COVID order requiring (with certain exceptions) all persons in indoor educational settings to wear face coverings. Parents of Catholic school students argued that the order violates their free exercise rights because masks in school inhibit their children's Catholic education. The court said in part:

[Plaintiffs] argue that ... they are likely to succeed on the merits ... because (1) the emergency order targets Catholic and private schools, (2) the emergency order does not pass strict scrutiny ... and (3) the emergency order is not generally applicable because it only applies to schools and not all public spaces. The Court does not find any of these arguments to be persuasive and instead finds that Plaintiffs are not likely to succeed on the merits.

6th Circuit: RLUIPA Requires More Than Vegan Sabbath And Holiday Meals For Jewish Inmates

In Ackerman v. Washington, (6th Cir., Oct. 12, 2021), the U.S. 6th Circuit Court of Appeals held that Michigan Department of Corrections universal religious meal plan is inadequate to meet the religious needs of Jewish prisoners. The court summarized its holding:

The Michigan Department of Corrections serves a universal religious diet to all prisoners with religious dietary needs. It created this meal plan to avoid forcing prisoners to eat foods that violate their sincere religious beliefs. And because some religious beliefs forbid eating animal products, the universal religious meals are vegan. Because other prisoners require kosher food, the vegan meal is also kosher.

Gerald Ackerman and Mark Shaykin are Jewish prisoners confined in MDOC facilities. Their religious beliefs require them to eat a meal with kosher meat and a meal with dairy on the Jewish Sabbath and four Jewish holidays. They also believe that they must eat cheesecake on the holiday of Shavuot to celebrate the holiday properly. So they claim that MDOC policies that force them to eat vegan meals on these days substantially burden their sincere religious beliefs. And they argue that the MDOC needs to accommodate their beliefs under the Religious Land Use and Institutionalized Persons Act (RLUIPA). We agree and affirm the district court’s judgment in the prisoners’ favor.

Law & Crime reports on the decision.

6th Circuit: Christian Student Athletes Wrongly Denied Exemption From COVID Vaccine Mandate

In Dahl v. Board of Trustees of Western Michigan University, (6th Cir., Oct. 7, 2021), the U.S. 6th Circuit Court of Appeals upheld, pending appeal, a district court's injunction barring Western Michigan University from enforcing its COVID vaccine mandate against 16 Christian student athletes who had applied for religious exemptions. The university requires student athletes to be vaccinated, but provides for medical and religious exemptions. Plaintiffs here however were denied a religious exemption. The court said in part:

[W]here a state extends discretionary exemptions to a policy, it must grant exemptions for cases of “religious hardship” or present compelling reasons not to do so....

True, the University did maintain plaintiffs’ athletic scholarships and did not formally dismiss them from their teams. But that is not the same thing as granting an exception from the University’s policy of conditioning “full involvement in the athletic department” on vaccination status. After all, the purported exception plaintiffs received did not allow them to play college sports. Yet playing on the team (and not just receiving a scholarship) is their goal, a point the University itself recognized....

Because the University’s policy is not neutral and generally applicable, we analyze the policy through the lens of what has come to be known as “strict scrutiny.” ... The University’s interest in fighting COVID-19 is compelling..... But the University falters on the narrow tailoring prong. For one, public health measures are not narrowly tailored if they allow similar conduct that “create[s] a more serious health risk.”... That is the case at the University, which allows non-athletes—the vast majority of its students—to remain unvaccinated. One need not be a public health expert to recognize that the likelihood that a student-athlete contracts COVID-19 from an unvaccinated non-athlete with whom she lives, studies, works, exercises, socializes, or dines may well meet or exceed that of the athlete contracting the virus from a plaintiff who obtains a religious exemption to participate in team activities....

Fox2Detroit reports on the decision.

Court Says U.S. Engaged In Vindictive Subsequent Prosecution of Defendants Originally Charged With Female Genital Mutilation

In United States v. Nagarwala, (ED MI, Sept. 28, 2021), a Michigan federal district court dismissed witness tampering charges against defendants (medical personnel and mothers of minor girls in the small, Indian-Muslim Dawoodi Bohra community) who were originally charged with violating the federal statute banning female genital mutilation. In 2018, the court held that the FGM statute was unconstitutional as exceeding Congress' interstate commerce and treaty powers. (See prior posting.) Subsequently, the government unsuccessfully attempted to convict defendants under superseding indictments, including an indictment for travel with intent to engage in illicit sexual conduct. The court now holds that the latest superseding indictment charging witness tampering was a vindictive prosecution brought in retaliation for defendants asserting their rights. MLive reports on the decision.

6th Circuit Dismisses Suit Against Anti-Israel Picketers of Synagogue

In Gerber v. Herskovitz, (6th Cir., Sept. 15, 2021), the U.S. 6th Circuit Court of Appeals dismissed a suit by synagogue members against anti-Israel pickets who have picketed services at the Beth Israel Synagogue in Ann Arbor, Michigan every week since 2003.  The district court had dismissed the suit on standing grounds. (See prior posting.) On appeal, the majority said in part:

The district court granted the defendants’ motions to dismiss for lack of standing. We disagree on that point, as the plaintiffs have alleged a concrete and particularized harm to a legally protected interest. But the reality that they have standing to bring these claims does not entitle them to relief. The key obstacle is the robust protections that the First Amendment affords to nonviolent protests on matters of public concern. We affirm the district court’s dismissal on that basis.

Judge Clay filed a concurring opinion stating that he would have affirmed the district court's dismissal on standing grounds, saying in part:

Plaintiffs’ allegations of extreme emotional distress fail to establish standing in this case because there is no legally protected interest in not being offended by the speech of others.

Courthouse News Service reports on the decision.