Muslim Woman Can Move Ahead With Suit Over Required Removal Of Hijab For Booking Photo

 In Chaaban v. City of Detroit, (EDMI, Sept. 7, 2021), a Muslim woman who was forced to remove her hijab for a booking photograph after her arrest sued the city of Detroit, the corrections department and corrections officials. The court held that corrections officials are not entitled to qualified immunity from the claim for damages stemming from a violation of 1st Amendment rights, saying in part:

Plaintiff’s allegations are sufficient to show the MDOC Defendants were “on notice” that their policy violates a Muslim woman’s right to freely exercise her religion. Plaintiff alleges she “made her dissent and protest to the forceful removal of her hijab extremely clear”.... Moreover, it defies logic that officers operating in a facility in Detroit, near one of the nation’s largest Muslim communities, would not be aware of the religious significance of the hijab.

The court went on to hold that plaintiff adequately states a claim for injunctive and declaratory relief under RLUIPA as well as a claim for broader relief under 42 USC §1983 for violation of the 1st Amendment's free exercise clause. In refusing to dismiss plaintiff's claim against the city of Detroit, the court said in part:

The issue here is whether the City of Detroit can be held liable for a policy which did not originate with the City, but which has been alleged to be enforced by the City and its officers under the authority of the interagency agreement between the City of Detroit and MDOC....  [T]he City of Detroit was aware of the Photograph Policy and promulgated that policy or, at a minimum, adopted “a custom of tolerance or acquiescence of federal rights violations.”

The court held, however, that "there is no independent damages remedy against a municipality for violations of the Michigan Constitution."

TRO Requires University Soccer Team To Grant Religious Exemptions From Vaccine Mandate

In Dahl v. Board of Trustees of Western Michigan University, (WD MI, (Aug. 31, 2021), a Michigan federal district court issued a temporary restraining order requiring the University to grant religious exemptions from its COVID vaccine requirement to four members of the women's soccer team. The university had previously denied the students' exemption requests. The 14-day TRO was issued on the basis of an ex parte motion.  The court said in part:

On the record before this Court, and understanding that WMU has not been afforded an opportunity to response, WMU’s vaccination requirement for student athletes is not justified by a compelling interest and is not narrowly tailored.... WMU has asserted that it has a compelling reason, albeit in a perfunctory manner. WMU appears to conclude that unvaccinated players pose a risk to the health of the vaccinated players.

Great Lakes Justice Center issued a press release announcing the decision, and providing links to pleadings in the case.

6th Circuit Upholds Michigan's Classroom Mask Mandate

In Resurrection School v. Hertel, (6th Cir., Aug. 23, 2021), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected free exercise, equal protection and due process challenges to Michigan's previous COVID-19 mask order for schools.  The court affirmed the denial of a preliminary injunction sought by a Catholic elementary school. All 3 judges agreed that the case is not moot because the mask requirement might be re-imposed.  The majority, however, held:

[T]he district court ... correctly concluded that because the requirement to wear a facial covering applied to students in grades K–5 at both religious and non-religious schools, it was neutral and of general applicability.

Judge Siler filed an opinion dissenting in part. Detroit News, reporting on the decision, says that the school will seek en banc review.

6th Circuit Hears Arguments On Masking Requirement For K-5 Religious Schools

Yesterday, the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Resurrection School v. Hertel. In the case, a Michigan federal district court refused to issue a preliminary injunction sought by parents of Catholic school children to eliminate the COVID face covering requirement for children attending K through Grade 5 at religious schools. Parents contend that the requirement interferes with the free exercise of the students' religion. (See prior posting.) Washington Post, reporting on appellants' arguments, said in part:

[A]ttorneys for Resurrection School in Lansing and two parents will tell the U.S. Court of Appeals for the Sixth Circuit that Catholic doctrine holds that every person is made in God’s image.

“Unfortunately, a mask shields our humanity,” the school argued in its lawsuit. “And because God created us in His image, we are masking that image.”

Plaintiff Lacks Standing To Challenge Michigan COVID Order Exemption For Worship Services

In Bormuth v. Whitmer, (ED MI, July 12, 2021), a Michigan federal magistrate judge denied plaintiff's motion to file a supplemental complaint in a challenge to a portion of Michigan Governor Gretchen Whitmer's now-rescinded COVID-19 Orders. At issue was an exemption from penalties for violation of stay-at-home orders by places of religious worship that allowed worship services, or by individuals travelling to places of worship. The court said in part:

The exemptions from prosecution for places of religious worship and their owners caused no harm to Plaintiff; if anything, they provided a protection to him. Under the exemptions, he enjoyed the freedom to practice his own religion at any indoor or outdoor “place of religious worship” without fear of prosecution....

The exemptions at issue neither established a state religion, nor favored particular religions, nor inhibited Plaintiff’s own free expression of genuinely-held religious beliefs. Indeed, the exemptions protected his expression of such beliefs....

Plaintiff’s proposed supplemental complaint still fails to demonstrate standing on the basis of a “concrete, particularized, and actual or imminent” injury... His proposed supplemental pleading will not cure the lack of justiciability identified in my prior report and recommendation.

Content of Sermon Protected By Ecclesiastical Abstention Doctrine

In Hullibarger v. Archdiocese of Detroit, (MI App., July 8, 2021), a Michigan state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a suit claiming that a priest's sermon at the funeral of plaintiff's son amounted to intentional infliction of emotional distress, misrepresentation and invasion of privacy. The court also held that the ecclesiastical abstention doctrine requires dismissal of  a negligent hiring, supervision and retention claim. According to the court:

Plaintiff’s son committed suicide in early December 2018, but his family kept the manner of his death from the public. Plaintiff’s pastor, defendant Father Don LaCuesta, officiated at the funeral and during his homily revealed the suicide of plaintiff’s son to the public. He then proceeded to preach about suicide as a grave sin and specifically about how it endangered the immortal soul of plaintiff’s son.

Michigan Governor Bans Use Of State Funds For Conversion Theapy

Yesterday, Michigan Governor Gretchen Whitmer issued an Executive Directive (full text) directing the Michigan Department of Health and Human Services to take action "to prohibit the use of state and federal funds for the practice of conversion therapy on minors." In the Executive Directive, Whitmer said in part:

The assumptions underlying the practice of conversion therapy are not supported by medicine or science. Being LGBTQ+ is not a disorder, disease, or deficiency. Treating it as such through conversion therapy is not only ineffectual, but may cause significant long-term harm, including anxiety, depression, internalized homophobia, lowered self-esteem, and self-blame, as well as alienation, loneliness, social isolation, loss of social supports, and suicidal behaviors.

It also called on other state agencies to explore what they can do to protect minors from conversion therapy. MLive reports on the Governor's action.

Catholic Group Challenges Zoning Refusal To Allow Building Of Chapel

Suit was filed this week in a Michigan federal district court challenging Genoa Township's refusal to allow a Catholic religious organization to develop and construct a 95-seat Chapel and prayer campus on land it acquired from the Diocese of Lansing in 2020. The Township has also demanded that all religious signage already on the property be removed. The complaint (full text) in Catholic Healthcare International, Inc. v. Genoa Charter Township, (ED MI, filed 6/2/2021), alleges that the Township's actions violate plaintiff's rights under RLUIPA, the Michigan Constitution and the First and 14th Amendments of the U.S. Constitution. American Freedom Law Center issued a press release announcing the filing of the lawsuit.

Court Says Wayne State Also Violated State Constitution and 14th Amendment In Denying Recognition To Christian Group

In Intervarsity Christian Fellowship/USA v. Board of Governors of Wayne State University, (ED MI, June 1, 2021), a Michigan federal district court denied defendants' motion for reconsideration of the breadth of an injunction the court issued in April which prohibits Defendants from revoking the recognized student organization status of IVCF. (See prior posting.) Wayne State had claimed that IVCF violated the school's non-discrimination policy by insisting that its leaders agree with IVCF's  “Doctrine and Purpose Statements,” “exemplify Christ-like character, conduct and leadership,” and describe their Christian beliefs. The court's April decision found violations of the 1st Amendment. The current decision concludes that the school also violated the free speech provision of the Michigan Constitution and the equal protection clause of the 14th Amendment.

Michigan Statute Protecting Parents' Faith Healing Includes Subjective Religious Interpretations

Michigan's Child Protection Law (MCL 722.634) provides:

A parent or guardian legitimately practicing his religious beliefs who thereby does not provide specified medical treatment for a child, for that reason alone shall not be considered a negligent parent or guardian.

In In re Piland, (MI App., April 15, 2021), a Michigan state appellate court held that the trial court erred in refusing to give a jury instruction based on this statute in a case in which parental rights for three children were being revoked.  The parents had allowed a newborn infant who developed jaundice to die rather than call for medical help. The trial court had refused the instruction because it interpreted the statute to relate only to the practice of beliefs of a religious organization, and not to individualized beliefs.  The appellate court disagreed, saying in part:

The trial court’s interpretation of the word “legitimately,” as used in MCL 722.634, is that the religious beliefs being practiced must be legitimate. And, that, in order to be legitimate, those beliefs had to be part of the doctrine or tenants of a religion as opposed to a parent or guardian’s subjective interpretation of scriptures. The trial court’s interpretation, however, renders the statute unconstitutional. It is well-established that “government has no role in deciding or even suggesting whether the religious ground” for a person’s actions “is legitimate or illegitimate.” 

Christian Student Group Wins Suit Seeking To Limit Its Leadership To Believers

In Intervarsity Christian Fellowship/USA v. Board of Governors of Wayne State University, (ED MI, April 5, 2021), a Michigan federal district court held that Wayne State University violated the free exercise, free speech, association and assembly rights of a Christian student organization (IVCF) when the University suspended the group's status as a Recognized Student Organization.  The University took this action because IVCF violated the school's non-discrimination policy by insisting that its leaders agree with IVCF's  “Doctrine and Purpose Statements,” “exemplify Christ-like character, conduct and leadership,” and describe their Christian beliefs. In an 83-page opinion, the court said in part:

The First Amendment provides religious organizations the right to select their own ministers, and, under the First Amendment and §1983, organizations can sue the government for violating that right....

Plaintiffs also provide uncontradicted evidence that student leaders, called “Christian leaders,” qualify as ministers under the First Amendment....  In essence, Plaintiffs’ student leaders participate in proselytizing efforts and are Plaintiffs’ chosen spiritual resource for students at Wayne State....

No religious group can constitutionally be made an outsider, excluded from equal access to public or university life, simply because it insists on religious leaders who believe in its cause...

Defendants have barred Plaintiffs from selecting leaders that share its Christian views while allowing other groups to engage in similar form of leadership selection. This divergent treatment cannot withstand constitutional scrutiny....

The court awarded an injunction and nominal damages. Detroit News reports on the decision.

Michigan Supreme Court Affirms Narrow Reading of "No-Aid" Clause

In Council of Organizations and Others for Education About Parochiaid v. State of Michigan, (MI Sup. Ct., Dec. 28, 2020), the Michigan Supreme Court by an evenly divided 3-3 decision affirmed a state Court of Appeals decision holding that there are no state or federal constitutional bars to state reimbursement of private and parochial schools for the costs they incur in complying with state health, safety, and welfare mandates such as state asbestos regulations and vehicle inspections. At issue was whether the no-aid provision of Art. 8 Sec. 2 of the Michigan Constitution only bars aid for educational services, or whether it also covers other reimbursements to non-public schools. Detroit News reports on the decision.

Court Refuses To Enjoin Mask Requirement For Religious School Students

In Resurrection School v. Gordon, 2020 U.S. Dist. LEXIS 242315 (WD MI, Dec. 16, 2020), a Michigan federal district court refused to issue a preliminary injunction sought by parents of Catholic school children to eliminate the COVID face covering requirement for children attending K through Grade 5 at religious schools. Parents contend that the requirement interferes with the free exercise of the students' religion. Rejecting that claim, the court said in part:

The order is clear: individuals over the age of five must wear a mask when they are out in public. Therefore, given the near-universal mask requirement, the Court finds nothing in the contours of the order at issue that correlate to religion, and finds that the order "cannot be plausibly read to contain even a hint of hostility towards religion." ... The Court finds that the challenged face-mask requirement is neutral and generally applicable. Any burden on Plaintiffs' religious practices is incidental, and therefore, the orders are not subject to strict scrutiny.... Plaintiffs have failed to establish a liklihood of success on the merits of their First Amendment claim.

Michigan Catholic School Challenges COVID Closure Order

A private Catholic school has sued seeking a declaration that Michigan's latest COVID-19 order temporarily closing down in-person high school instruction violates its Free Exercise rights.  The complaint (full text) in Saint Michael Academy, Inc. v. Gordon, (WD MI, filed 12/11/2020) alleges in part:

The Declaration of Dr. Jayanta Bhattacharya, a world-renowned scientific expert, professor of Medicine at Stanford University, and author of 136 articles in peer-reviewed journals, attached to this Complaint as Exhibit 3, presents scientific analysis which shows that prohibiting in-person instruction for pupils in grades 9 through 12 as does Director Gordon’s current Order, is not warranted by either transmission or mortality data, and causes these students great harm....

Without in-person instruction, St. Michael Academy is unable to provide the Christ-centered, communal academic environment required for its students to grow and develop in accordance with its religious purpose, mission and vision....

The current Order is an arbitrary order that, while closing down St. Michael Academy’s high school, nevertheless permits many other types of gatherings that pose similar or greater risks of COVID-19 transmission and infection, and that are unprotected by the Free Exercise clause of the United States Constitution.

Thomas More Law Center issued a press release with more details on the case. MLive reports on the lawsuit.

Michigan Court of Claims: State Civil Rights Law Bans Gender Identity, But Not Sexual Orientation, Discrimination

In 2018, the Michigan Civil Rights Commission in Interpretive Statement 2018-1 concluded that:

as used in the Elliott Larsen Civil Rights Act “discrimination because of... sex” includes discrimination because of gender identity and discrimination because of sexual orientation.

Now in Rouch World, LLC v. Michigan Department of Civil Rights, (MI Ct. Cl., Dec. 7, 2020), the Michigan Court of Claims 

"discrimination because of sex under the ELCRA includes discrimination because of an individual’s “gender identity,” and thus Interpretative Statement 2018-1 is valid to that extent....

However, feeling itself bound by a prior state Court of Appeals decision, the court held:

discrimination because of an individual’s “sexual orientation” is not prohibited under the ELCRA. Whether enforcement of Interpretative Statement 2018-1, as modified by this opinion and order, would interfere with plaintiffs’ First Amendment rights to the free exercise of religion has not been sufficiently briefed to resolve at this juncture.

At issue in the case According to the Detroit News, Michigan's attorney general plans to support the Civil Rights Commission's full interpretation in an appeal.

Michigan Catholic Schools Sue Over COVID Order

A group of Catholic schools and parents of students in the schools filed suit this week in a Michigan federal district court challenging the state's latest COVID-19 Order which temporarily bars in-person instruction in high schools. The schools claim that the latest order violates their free exercise, freedom of assembly, due process and equal protection rights. The complaint (full text) in Michigan Association of Non-Public Schools v. Gordon, (WD MI, filed 12/7/2020), alleges in part:

Plaintiffs fully understand and appreciate the challenges of limiting COVID’s spread and of contributing to the common good. They are convinced that continuing in-person religious education contributes  to the well-being of Michiganders, rather than harming it. That is why they have gone to such extraordinary lengths to ensure in-person schooling can be done safely for everyone.

Despite all this, Defendant has shuttered Plaintiffs’ schools. At the same time, Defendant allows other activities with demonstrably higher risks to continue. These include professional and collegiate athletics, tattoo parlors and hair salons. Defendant’s prior three-week “pause” order has now been extended and Plaintiffs face the prospect of indefinite future extensions....

MLive reports on the lawsuit.

Parents' Challenge To School's LGBT Non-Discrimination Rules Dismissed For Lack of Standing

 In Reynolds v. Talberg, (WD MI, Oct 30, 2020), a Michigan federal district court dismissed, primarily for lack of standing, parents' challenge to a school district's policies that prohibit discrimination on the basis of sexual orientation, gender identity or gender expression. The court said in part:

Citing their Christian faith, Plaintiffs contend the Challenged Policies force their children to disregard their sincerely held religious beliefs and to “affirm[] . . . alternative sexual lifestyles” or else face punishment.... The crux of Plaintiffs’ claim is that the Challenged Policies “promote and force the approval of alternate sexual lifestyles and behavior” in a “manner that infringes upon Plaintiffs’ personal identity, autonomy, and their sincerely held religious beliefs and convictions and constitutional right to oppose such policies and freely speak out on such issues in accordance with their sincerely held religious beliefs.” ... Though Plaintiffs claim that the Challenged Policies permit Williamston public schools to punish students who refuse to “affirm[] . . . alternative sexual lifestyles”..., and would permit students to use bathroom and shower facilities in accordance with their gender identity..., the complaint does not allege that any student represented by Plaintiffs has been disciplined or otherwise restrained under the Challenged Policies, nor do they allege that any transgender student has used facilities in accordance with their gender identity.

The court also rejected a vagueness challenge to the regulations. 

Suit Challenges Michigan Mask Mandate Imposed On Catholic School

Suit was filed last week in a Michigan federal district court challenging state COVID-19 orders requiring elementary school students to wear masks during the school day. The complaint (full text) in Resurrection School v. Gordon, (WD MI, filed 10/22/2020), alleges, among other things, that the requirement violates students' free exercise and free speech rights. The complaint, brought by a Catholic school along with some students and parents, alleges in part:

At the start of the school year in August 2020, Plaintiffs C.M., Z.M., and N.M. were beginning to engage in Catholic fellowship with their classmates and form relationships with other children based upon the teachings and example of Jesus Christ. Mandating Plaintiff Mianecki’s young children to wear facial coverings is hindering the formation of these bonds and prevents the body of Christ from freely associating....

When wearing facial coverings, Plaintiffs C.M., Z.M., and N.M struggle to engage in and celebrate the Mass....

For many, including Plaintiffs, forcing them to wear a face mask is forcing them to convey a message with which they disagree even when socially distanced in private homes or non- public schools. Wearing a mask conveys the message that the wearer has surrendered his or her freedom to the government, particularly in light of the facts of this current declared pandemic. During this current political climate, a mask has become a symbol. And because a mask has become a political symbol, the wearing of a mask is a form of symbolic speech. Consequently, via the mask mandates, Defendants are compelling Plaintiffs to engage in a form of expression and to convey a message with which they disagree.

Lansing State Journal reports on the lawsuit.

More Litigation Developments In Religious Institution Challenges To COVID-19 Restrictions

Suit was filed last week in an Oregon federal district court challenging Oregon's COVID-19 Orders and guidance that grant small public schools, but not small private or religious schools, an exemption from the ban on in-person instruction. The complaint (full text) in Hermiston Christian Center v. Brown, (D OR, filed 10/16/2020) asserts various 1st and 14th Amendment claims, including the charge that the Orders unlawfully target religious schools. ADF issued a press release announcing the filing of the lawsuit.

Becket announced that it filed suit last week in Lebovits v. Cuomo, (ND NY, filed 10/15/2020). The suit is brought on behalf of two young women and their Orthodox Jewish school.  It challenges New York City's lock down in zip codes in which there are micro-clusters of COVID-19.

Amistad Project announced that it filed suit over the weekend in Libertas Classical Ass'n v. Whitmer, (WD MI), on behalf of a K-12 Christian school in Hudsonville, MI. According to the press release:

... [T]he Whitmer Administration has made repeated, unreasonable demands on the school since September 4, including that kindergarteners always wear masks while in school, including during chapel and outdoor recess....

This violates the First Amendment rights of assembly and religion for the school's 265 students, as well as parents and staff.

In Maryville Baptist Church, Inc. v. Beshar, (6th Cir., Oct. 19, 2020), the U.S. 6th Circuit Court of Appeals refused to allow a church and its congregants to obtain an appellate court ruling on a dispute that had essentially become moot.  In March 2020, Kentucky Governor Andy Beshear had barred all religious services as part of the state's response to the COVID-19 pandemic. Federal courts preliminarily enjoined the ban from going into effect and subsequently the Governor ended the ban. Liberty Counsel issued a press release announcing the decision.

In Gish v. Newsom, 2020 U.S. Dist. LEXIS 192714 (CD CA, Oct. 9, 2020), a California federal district court refused to reconsider its decision upholding the state's COVID-19 Orders that limit indoor religious services.

Muslim Woman Sues After She Was Forced To Remove Her Hijab

Last week, a Muslim woman sued a Michigan county and two State Police officers for requiring her to remove her hijab when she was booked and arraigned on an outstanding warrant after a traffic stop. The process caused her to be viewed by a number of men with he head uncovered, in violation of her religious beliefs. The complaint (full text) in Cave v. Genesee County, (ED MI, filed 8/26/2020) asserts violations of the Free Exercise Clause, RLUIPA and the Equal Protection Clause. NBC25 News reports on the lawsuit.