Zoning Board Members Have Qualified Immunity In Mosque's Suit

In Adam Community Center v. City of Troy, (ED MI, Aug. 26,2020), a Michigan federal district court held that members of a city's Zoning Board of Appeal who voted to deny a zoning variance sought by a mosque are entitled to qualified immunity in a suit against them personally for damages.  The court said in part:

The record does not present sufficient evidence to establish that the Individual Defendants knew or should have known their straightforward application of the seemingly legal zoning regulations, which impose different setback requirements on places of worship and places of business, would violate Plaintiff’s constitutional rights. And Plaintiff provides no legal authority clearly establishing that a government official violates a citizen’s right to freedom of religion when it enforces an apparently valid zoning ordinance for facially neutral reasons that may or may not interfere with the citizen’s right to express her religion. 

Moreover, Plaintiff fails to present sufficient evidence to establish that each of the of the Individual Defendants, in voting to deny Plaintiff’s variance application, acted with discriminatory intent or religious annimus...

However, in finding that the Individual Defendants are entitled to qualified immunity, the Court cautions that its decision here should in no way be construed as a finding that Plaintiff’s constitutional rights were not violated by the ZBA’s decision, or as absolving the ZBA , the City, or any of the Entity Defendants from potential liability.

Worshipers Lack Standing to Sue Synagogue Picketers

 In Gerber v. Herskovitz, (ED MI, Aug. 19, 2020), a Michigan federal district court dismissed for lack of standing a lawsuit against protesters who for almost 18 years have picketed an Ann Arbor, Michigan synagogue every Saturday morning with anti-Jewish and anti-Israel signs. Plaintiffs, who attend Sabbath services in the synagogue or in an adjacent building, also sued the city of Ann Arbor for failing to enforce the City Code against the protesters.  Plaintiffs contend that the picketing interferes with their Free Exercise right to practice their religion without being harassed. The court held, however:

There is no allegation that the protestors prevent Plaintiffs from attending Sabbath services, that they block Plaintiffs’ path onto the property or to the Synagogue, or that the protests and signs outside affect the services inside. Plaintiffs merely allege that the Defendants’ conduct causes them distress and “interferes” with their enjoyment of attending religious services. This is the “subjective chill” that is “not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-14 (1972). This type of “chill” does not confer standing and is not actionable. 

Michigan Mosque Sues Cemetery Over Need To Prepay For Grave Sites

In May, suit was filed in a state trial court in Dearborn, Michigan by a local mosque which claims that a cemetery is attempting in breach of contract to double the price of grave space for mosque members during the COVID-19 emergency.  On July 2, the mosque filed a motion (full text) for summary judgment on its breach of contract claim. The allegations in American Moslem Society v. Midwest Memorial Group, LLC, (MI Cir. Ct., filed 7/2/2020), are that the mosque entered three separate contracts over the years for the purchase of a large number of graves at a discount price, and then made the graves available to its members when needed by them. The mosque has paid $380,000 for 608 of the 1000 graves acquired under its latest contract. The cemetery now contends that the mosque must pay in advance for all 1000 graves before it may use any of them. Plaintiffs' motion for Summary Disposition alleges in part:

Defendant's unjustified refusal to allow burials in AMS III at a time of great suffering and need in the wake of the COVID-19 pandemic is clearly part of a grossly improper attempt to shake down Plaintiff and its members.  Defendant's April 14 letter cynically proposes a simple "cure" for the problem.  Plaintiff either 1)  pays the amount of $353,750 remaining ..., or 2) waives its rights under the 2017 Contract and enters into a new contract in which the cost of graves ... is roughly doubled.

... Defendant's demands are particularly coercive in light of its knowledge that the AMS community is extraordinarily tight knit and places a high premium on having its loved ones buried in close proximity to each other and to their mosque, which is located adjacent to the cemetery.

Detroit News reports on the lawsuit.

Churches Sue Michigan Governor Over COVID-19 Orders Despite Their Exemption From Penalties

A group of churches and clergy yesterday filed suit in a Michigan federal district court challenging on a wide variety of state and federal constitutional grounds the stay-at-home orders of Michigan's Governor Gretchen Whitmer. These orders do not exempt churches, but do provide that they are not subject to any penalty for violating the restrictions.  The complaint (full text) in Word of Faith Christian Center Church v. Whitmer, (WD MI, filed 5/6/2020) alleges in part:

7.  EO   2020-70   continues   to   prohibit   gatherings   of   two   or   more individuals, including at churches, thereby denying them the ability to hold worship services and otherwise carry out their ministry functions until May 28, 2020.

8.  While EO 2020-70 states that “neither a place of religious worship nor its owner is subject to penalty under section 20 of this order for allowing religious worship at such place,” nothing in this provision applies to individuals attending a place or worship as clergy or congregants and does not apply to Plaintiffs.

9. A  promise  to  not  subject  a  geographic  location or  its  “owner”  to  the  criminal penalty under  EO  2020-70 merely  adorns  the  constitution  with  a  fig  leaf  and does not protect individuals or change the clear language of the order prohibiting any   religious services   or   other   ministry functions   at   a   church   or   religious  organization.

M Live reports on the lawsuit.

Factional Dispute In Israelite House of David Is Dismissed

In Ferrel v. Israelite House of David, (MI App., April 2, 2020), a Michigan appellate court upheld a trial court's dismissal on ecclesiastical abstention and standing grounds a suit by a former member of the Israelite House of David against the two individuals who claimed to be among a handful of members of a religious organization whose history traced back over 100 years.  Plaintiff had surrendered his membership in a settlement agreement with the organization in 2013. According to the court:

Plaintiff stated that he is “perhaps . . . the only person who is a true believer in the religion of IHOD with the capacity to manage the assets to advance its religious purpose.” He alleged that “he may be the only party standing between continuation of IHOD doctrine and Defendant’s theft and destruction of the religion for personal gain.” On the basis of these allegations, plaintiff sought relief in various forms, including a declaratory judgment that defendants “have improperly and unlawfully diverted IHOD from its stated mission....

In affirming the dismissal of the case, the court said in part:

The trial court did not err by ruling that resolution of plaintiff’s claims would require a decision on matters of church doctrine and polity. Plaintiff argues that his complaint did not seek resolution of any religious issues but concerned a dispute about real estate. This statement is belied by an examination of plaintiff’s amended complaint.... Plaintiff maintained that, with the exception of William Robertson, who was elderly and may have suffered from dementia, “there are no proper members of IHOD.” Plaintiff further alleged that, unlike defendants, he was a true believer and “should be allowed to reestablish his membership as the only person committed to maintain the faith.”... 

The damages that plaintiff alleged are spiritual in nature.... [P]laintiff alleged that he was “deprived of the means and mechanisms necessary for the free exercise of his chosen religion,” “prevented from participating in the central tenet and goal of the religion—the ingathering of the flock of God,” and “deprived of the means to spread the gospel to others.” He also alleged that he has suffered “extreme emotional distress from the loss of the means to practice his religion and the specter of being deprived of salvation.”

Michigan Will Allow Secular Marriage Celebrants

In an April 2 press release, the Center for Inquiry reports:

Secular celebrants are now permitted to officiate and solemnize marriages in Michigan, after the state attorney general reversed the government’s opposition to a lawsuit brought by the Center for Inquiry (CFI). Promising that the state considers CFI-trained and certified Secular Celebrants to be covered by existing statutes regarding marriage solemnization, the presiding federal court brought the case to a close.

Another Ruling On Business Refusal To Serve Same-Sex Weddings

In Country Mills Farms, LLC v. City of East Lansing, (WD MI, Dec. 18, 2019), a Michigan federal district court refused to grant summary judgment to either side on most of plaintiff's claims growing out of plaintiff's refusal rent his farm venue for same-sex wedding ceremonies. That refusal led to plaintiff being excluded from participating in the city's farmer's market, The court summarized:

Plaintiffs used Facebook to announce both their religious beliefs and their business practices. The City reacted to the Facebook post, culminating in the denial of Country Mill’s application to participate in the East Lansing Farm’s Market. The parties disagree whether City’s actions were because of Plaintiffs’ statement about their religious beliefs or whether the City’s actions were because of Plaintiffs’ statement about their business practices.  Because the record contains evidence from which the finder of fact could conclude that the City reacted to Plaintiffs’ statements about their religious beliefs, the cross motions for summary judgment must be denied for many of the claims. The trier of fact must decide what the City’s motivation was.

The court, however, did hold that a portion of the city's non-discrimination ordinance is overbroad.  The court also dealt at length with plaintiff's free exercise claims. In part, the court rejected  plaintiff's argument that the Supreme Court's Trinity Lutheran decision precludes the city from denying him a public benefit because of his religious belief, saying: "the Trinity Lutheran opinion does not clearly extend beyond religious institutions "

Priest and His Church Sued Over Insensitive Funeral Homily

Detroit News reports on a lawsuit filed on Wednesday in a Michigan state trial court seeking damages from priest  Rev. Don LaCuesta and Our Lady of Mount Carmel Catholic Church in Temperance, Michigan for a homily which La Cuesta delivered at the funeral of plaintiff's son last December.  At the funeral of the son, who had committed suicide, LaCuesta delivered this homily which condemned suicide, but added that God can forgive it.  The priest ignored a plea by the deceased's father during the funeral to stop.  After the funeral, the Archdiocese and the priest both issued apologies. The lawsuit alleges that plaintiff, mother of the deceased, "continues to suffer great pain of mind and body, shock, severe and permanent emotional distress … and difficulty in practicing religion through the church."

Justice Department Sues Michigan City Over Mosque Zoning

The Department of Justice announced yesterday that it has filed suit against the city of Troy, Michigan alleging that it has violated the Religious Land Use and Institutionalized Persons Act in denying zoning approval for a mosque to be built by Adam Community Center.  The complaint (full text) in United States v. City of Troy, Michigan, (ED MI, filed 9/19/2019), contends in part:

Troy specifically violated RLUIPA by: (a) imposing an unjustified substantial burden on Adam’s exercise of religion when it denied Adam’s variance requests, 42 U.S.C. § 2000cc(a)(1); and (b) requiring places of worship to abide by more onerous setback and parking restrictions than nonreligious places of assembly, id. § 2000cc(b)(1).

Detroit Free Press reports on the lawsuit.

6th Circuit Refuses To Allow Congress To Intervene To Defend FGM Ban

As previously reported, after the Department of Justice dropped its appeal of the district court's decision in United States v. Nagarwala which held the federal ban on female genital mutilation (18 USC Sec. 116(a)) unconstitutional under the Commerce Clause, the House of Representatives filed a motion to intervene in the case to defend the constitutionality of the statute. The Detroit Free Press now reports that the U.S. 6th Circuit Court of Appeals last week denied the House's motion to intervene and granted the Justice Department's motion to voluntarily dismiss the appeal.

Michigan City Adopts Ban on Conversion Therapy For Minors

The City of East Lansing on Tuesday passed an ordinance banning provision to minors of conversion therapy relating to sexual orientation or gender identity.  The City Council vote of approval was 3-2, after amendments to the version as proposed were adopted.  The original proposal and a video of City Council meeting including discussion and amendments are available on the city's website. Fox47 News reports on the passage of the ordinance.

Ann Arbor Concedes Narrow View of Public Accommodation

Last week, the city of Ann Arbor, Michigan settled a suit brought by a conservative political consulting and marketing firm challenging the city's attempt to apply its public accommodation law to the firm. Ann Arbor Code § 9:151(22) defines a public accommodation as including:

[A] business or other facility of any kind, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold or otherwise made available to the public....

The Stipulated Dismissal (full text) in ThinkRight Strategies, LLC v. City of Ann Arbor, (ED MI, filed 9/5/2019), asserts that:

While ThinkRight advertises to and receives requests for its services from the general public, ThinkRight will not fulfill any request if doing so involves promoting messages, views, policies, platforms, or causes contrary to ThinkRight’s conservative or religious principles.

The city of Ann Arbor conceded:

Ann Arbor does not consider ThinkRight to be a place of public accommodation as defined by Ann Arbor Code § 9:151(22).That is because ThinkRight will only provide its services in ways that promote, or are not contrary to, its conservative political beliefs and therefore limits the platforms, views, policies, causes, events, or messages it will convey or promote through its services.

ADF issued a press release announcing the settlement.

Consulting Firm Challenges City's Ban On Discrimination Based on Political Belief

A suit was filed in a Michigan federal district court this week challenging the constitutionality of the Ann Arbor (MI) non-discrimination ordinance that, among other things, bars discrimination based on political belief. The complaint (full text) in ThinkRight Strategies, LLC v. City of Ann Arbor, (ED MI, filed 7/29/2019), alleges that plaintiffs are political conservatives whose political views are religiously motivated. Their consulting business develops websites and content for speeches, guides canvassing, promotes events and handles media relations. I will not, however, accept requests for service that involve promoting messages or policies contrary to their conservative or religious principles. The suit contends that Ann Arbor's ordinance bars this client selectivity in violation of plaintiffs' free speech rights and is unconstitutionally vague. ADF issued a press release announcing the filing of the lawsuit.

Settlement Reached In Discrimination Suit Against Michigan Chautauqua Village

Petoskey News-Review reports that a settlement has been reached in a lawsuit against the Michigan village of Bay View that was established in 1875 as part of the United Methodist Church's Chautauqua movement.  In 2017, a federal lawsuit was filed challenging provisions in the Bay View Association's rules that limited cottage ownership to practicing Christians, as well as the requirement that a majority of the Association board be Methodists.  (See prior posting.) Later the Justice Department joined the lawsuit.  In 2018, the provision limiting ownership to Christians was eliminated. (See prior posting.) However plaintiffs also objected to other provisions favoring Christians. 

In the settlement reached in May, but which must still be approved by the court, Bay View Association will retain its status as a religious organization, but will need to file for its tax exempt status separately rather than through the United Methodist Church. It will end the requirement that a majority of its board be Methodists.  The Association will also eliminate provisions in its bylaws that require members to "respect the principles of the United Methodist Church" and support Bay View's mission. Instead, the bylaws will be amended to read that members must "respect and preserve the history and values of the Association," which includes acting "in a manner consistent with Christian values." Finally, Bay View, through its insurers, will pay $75,000 in plaintiffs' legal fees.  The Justice Department will monitor compliance with the settlement for five years.

District Court Nominee Withdraws Amid Controversy Over Brief In 1st Amendment Case

The Hill and the Kansas City Star report that Michael Bogren, a Trump judicial nominee for a seat on the federal district court for the Western District of Michigan, has withdrawn himself from consideration amid claims that he is anti-Catholic.  Three Republican members of the Senate Judiciary Committee indicated their opposition to Bogren because of a brief he filed in a 2017 case defending the City of East Lansing. Vendor Guidelines for East Lansing's Farmers' Market required vendors to comply with the civil rights ordinance as a general business practice. The Catholic owner of Country Mill Farms was denied a vendor permit because, while the Farm hosts weddings at its orchard, it refuses on religious grounds to host same-sex weddings.  (See prior posting.) In the brief, Bogren argued that the First Amendment does not create an exception for discrimination based on religious beliefs any more than it does for a member of the Ku Klux Klan refusing to serve African Americans.

Members of Bogren's law firm, Plunkett Cooney, wrote a letter (full text) on June 7 strongly defending Bogren, saying that criticism of him is misinformed. Michigan's two Democratic Senators supported Bogren.  But Missouri Republican Senator Josh Hawley, one of Bogren's chief critics, argued: "He could have given a vigorous defense to his client without stooping to calling this Catholic family equivalent to members of the KKK, comparing them to radical Islamic jihadists."

Michigan Charges Five Priests On Criminal Sexual Conduct

Michigan Attorney General Dana Nessel last week announced:

Five men who were priests have been charged with a total of 21 counts of criminal sexual conduct, Michigan Attorney General Dana Nessel announced at a news conference this morning in Lansing.  Four of the men have been arrested; one awaits extradition in India. A sixth Michigan priest is facing an administrative complaint and his license as a professional educationally limited counselor has been summarily suspended by the Michigan Department of Licensing and Regulatory Affairs (LARA). 

House of Representatives Moves To Intervene To Defend Federal FGM Ban

As previously reported, last month the Department of Justice dropped its appeal of the court's decision in United States v. Nagarwala. In the case, a Michigan federal district court held the federal ban on female genital mutilation (18 USC Sec. 116(a)) unconstitutional under the Commerce Clause.  Yesterday, the House of Representatives filed a motion to intervene (full text) in the case to defend the constitutionality of the statute. The Detroit Free Press reports on this move by House leaders.

Catholic Agency Challenges Michigan's Child-Placement Anti-Discrimination Policy

Last week, a second lawsuit was filed challenging a settlement entered into by Michigan's Attorney General in which she agreed to enforce anti-discrimination provisions against adoption and foster care agencies contracting with the state which refuse to place children with same-sex couples or LGBTQ individuals who are otherwise qualified as foster care or adoptive parents. The first challenge was filed earlier this month in federal court. In last week's lawsuit, Catholic Charities West Michigan v. Michigan Department of Health and Human Services, (MI Ct. Claims, filed 4/25/2019), filed in state court, the complaint (full text) cites protections for faith-based child placement agencies found in Michigan statutes such as MCL §722.124e and §722.124f, and alleges in part:

[T]he Michigan Legislature intended to-- and did-- protect the religious exercise of faith-based providers like Catholic Charities.... Defendants have adopted a new policy that forces Catholic charities to choose between violating its religious beliefs about same-sex marriage and shutting down its foster care and adoption ministry.  Defendants' new policy misinterprets state law, violates Catholic Charities' rights under the U.S. and Michigan Constitutions, and adopts the anti-religious views and policy preferences of Defendant Attorney General Dana Nessel-- who has previously criticized Michigan's statutory protections for faith-based foster care and adoption providers as "a victory for the hate mongers."

ADF issued a press release announcing the filing of the lawsuit.

DOJ Drops Appeal In FGM Case; Proposes Amendments To Federal Statutory Ban

AP reports that the Department of Justice has dropped its appeal of the court's decision in United States v. Nagarwala. In the case, a Michigan federal district court held the federal ban on female genital mutilation (18 USC Sec. 116(a)) unconstitutional under the Commerce Clause, saying it is not a commercial activity; it is a local criminal activity which should be left to the states to regulate. (See prior posting.) In a letter (full text) sent to Congress last Wednesday, Solicitor General Noel Francisco proposed amendments to the the federal law needed to assure its constitutionality:

[C]oncurrently with submitting this letter, the Department is submitting to Congress a legislative proposal that would amend Section 116(a) to provide that FGM is a federal crime when ( 1) the defendant or victim travels in or uses a channel or instrumentality of interstate or foreign commerce in furtherance of the FGM; (2) the defendant uses a means, channel, facility, or instrumentality of interstate commerce in connection with the FGM; (3) a payment is made in or affecting interstate or foreign commerce in furtherance of the FGM; (4) an offer or other communication is made in or affecting interstate or foreign commerce in furtherance of the FGM; (5) the conduct occurs within the United States' special maritime and territorial jurisdiction, or within the District of Columbia or a U.S. territory; or (6) the FGM otherwise occurs in or affects interstate or foreign commerce. In our view, adding these provisions would ensure that, in every prosecution under the statute, there is a nexus to interstate commerce.

The letter to the Senate Judiciary Committee was sent in compliance with 28 USC Sec. 530D which requires DOJ to report to Congress when it, among other things, decides not to appeal a decision affecting the constitutionality of a federal statute.

Ecclesiastical Abstention Doctrine Governs Property Dispute In Hierarchical Church

In Holy Trinity Romanian Orthodox Monastery v. Romanian Orthodox Episcopate of America, (MI App., March 19, 2019), a Michigan state appellate court held that the trial court should have applied the ecclesiastical abstention doctrine to a church property dispute instead of the "neutral principles of law" approach.  Bishop Ioan Duvlea served as the abbot of the Holy Ascension Romanian Orthodox Christian Monastery until he was demoted and defrocked after a church trial.  A faction supporting him conveyed property belonging to the monastery to Holy Trinity, a new entity they formed.  The court, ruling in favor of the parent church body said in part:

This case requires determination whether Holy Trinity, a monastic corporate entity formed by a schismatic faction that left the ROEA, could claim ownership of the property that the faction conveyed from Holy Ascension before dissolving it. The ROEA contends that Holy Ascension owned but held in trust for the ROEA, a hierarchical church, the disputed property pursuant to church documents governing the ecclesiastical structure, polity, rules, discipline, and usage of the church with which Holy Ascension affiliated itself and to which it submitted....

In this case, the trial court failed to consider whether the ROEA constituted a hierarchical religious organization and did not examine the nature of the relationship of Holy Ascension with the ROEA and the Orthodox Church in America. The trial court failed to consider whether the actual adjudication of the legal claims in this case required the resolution of ecclesiastical questions, including the relationships between entities within the allegedly hierarchical religious denomination. Instead, the trial court stated without explanation that it found the dispute in this case merely secular requiring it to apply the neutral-principles-of-law approach. In so doing, the trial court erred.

The record reflects that the trial court substituted its interpretation of canonical texts and ignored the decisions of the ROEA relating to government of the religious polity. The trial court disregarded the evidence presented by the ROEA that required it to abstain and defer to the ROEA’s resolution of the property dispute.