Teacher Sues Over School's Policy on Transgender Students

Suit was filed this week in an Ohio federal district court by a middle school teacher who resigned after refusing on religious grounds to comply with the school's policy regarding transgender students.  The school required teachers to address students by their preferred names and pronouns. The complaint (full text) in Geraghty v. Jackson Local School District Board of Education, (ND OH, filed 12/12/20222), alleges in part:

2. The Constitution guarantees a freedom of thought that includes a freedom to differ.... 

3. The Constitution protects this freedom to differ, in part, by prohibiting the government from adopting and enforcing a set of approved views on these matters in America’s public schools.... 

4. Defendants have abandoned this guiding light and adopted one particular view on this subject: that a person’s subjective identity determines whether a person is male or female, not a person’s sex. Compounding their unlawful adoption of an orthodoxy in this area, they have created and implemented a Policy requiring teachers, including Plaintiff Vivian Geraghty, to mouth her own support of Defendants’ views by forcing her, as a condition of keeping her job as a public school teacher, to participate in the “social transition” of children in her class.

5. Ms. Geraghty has a different view of this fundamental matter, informed by her scientific understanding and her Christian faith....

7. Because no interest justifies the state’s treatment of Ms. Geraghty—indeed, the very nature of free speech, free exercise of religion, and freedom from state-enforced orthodoxy on fundamental matters condemns the state’s attempt to purge contrary views from its schools—she brings this Complaint for injunctive, declaratory, and compensatory relief.

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

RLUIPA Suit Charges City Attempt To Prevent Growth Of Orthodox Jewish Population

Suit was filed earlier this month in an Ohio federal district court by a University Heights, Ohio homeowner who was told by the city that he needed to obtain a special use permit in order to hold Jewish prayer services with ten friends in his home. The complaint (full text) in Grand v. City of University Heights, Ohio, (ND OH, filed 9/8/2021), says in part:

3. Since Grand moved into his home in 2019, he experienced discrimination based on his religion. After Grand’s invitation for friends to join him in Orthodox Jewish prayer in January of 2021, the City, led by its mayor, waged a zealous campaign of capricious enforcement of its local ordinances specifically targeting Grand and several other Orthodox Jewish prayer groups. This campaign is directly responsive to a hostile segment of the mayor’s constituency that seeks to prevent the growth of the City’s Orthodox Jewish population by limiting the locations where Orthodox Jews can pray.

4. Additionally, the City has targeted Grand individually for intentional, arbitrary, and discriminatory application of its ordinances that have caused him substantial injuries.

5. This action challenges certain provisions of the [city ordnances under] ... the United States Constitution, the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”), the Ohio Constitution, and Ohio common law.

News5 Cleveland reports on the lawsuit. 

Church's Attempt To Separate From Parent To Avoid Receivership Was Fraudulent

In Pentecostal Church of God v. City of Refuge Ministries Toledo Ohio, (OH Com. Pl., Aug. 15, 2022), an Ohio state trial court held that the transfer of a Toledo, Ohio church building by a quitclaim deed to City of Refuge, a separate non-profit entity, was fraudulent.  The court concluded that Toledo congregation was a satellite church of Detroit Pentecostal Church of God, and the members signing the deed had no authority to transfer the property. The transfer was made in order to attempt to separate the Toledo congregation from the receivership imposed on the Detroit congregation. The court said in part:

Here, the dispute is over a quit-claim deed that transferred property held by PCG to City of Refuge in 2018. Deciding if that deed was fraudulently transferred from PCG to City of Refuge will not invade upon protected ecclesiastical matters.....

[T]his Court finds that the deed executed in 2018, conveying the contested property from PCG to City of Refuge Ministries Toledo, Ohio as void, ab initio. Further, the title to said property is vested to PCG alone and the defendant, City of Refuge does not have any estate, right, title, or interest in the property.

Suit Seeks To Block Ohio's Heartbeat Abortion Law

 An original action seeking a writ of mandamus was filed in the Ohio Supreme Court this week by several abortion providers seeking to block enforcement of Ohio's 6-week Heartbeat abortion law and reinstate the state's former 20-week provision.  The complaint (full text) in State ex rel Preterm- Cleveland v. Yost, (Ohio Sup. Ct., filed 6/28/2022), contends various provisions in the Ohio Constitution  protect abortion rights:

12. The Ohio Constitution’s Due Course of Law Clause, when read together with other distinctive provisions, including Article I, Sections 1, 16, and 21, establishes an independent right to abortion under the Ohio Constitution. That right is infringed by S.B. 23.

13. Captured within the substantive due process rights protected by the Due Course of Law Clause are the rights to reproductive autonomy and bodily integrity....

14. Likewise, Ohio’s Equal Protection and Benefit Clause provides broader protections than its federal analogue.

Ohio Capital Journal reports on the lawsuit.

Suit Challenges Ohio's Health Care Conscience Law

Suit was filed last week in an Ohio state trial court challenging ORC §4743.10 which allows health care practitioners, hospitals and insurers to refuse to participate any health care service that violates teir conscience as informed by the moral, ethical, or religious beliefs or principles they hold. The suit was filed by a community health care system that provides services to the LGBTQ+ community.  The complaint (full text) in Equitas Health v. State of Ohio, (OH Com. Pl., filed 4/29/2022) contends that the law violates the Ohio constitution in that it is void for vagueness and violates the single-subject rule for legislation.  The provision was inserted into last year's 2400-page budget bill. News5Cleveland reports on the lawsuit.

Another Court Gives Relief To Military Objectors To COVID Vaccine

Last week, an Ohio federal district court became the latest to grant a preliminary injunction to members of the military who have religious objections to the military's COVID vaccine mandate. In Doster v. Kendall, (SD OH, March 31, 2022), the court said in part:

The Court finds the targeted relief Plaintiffs now seek is "a prohibition against disciplinary or separation measures to these Plaintiffs under RFRA," and thus the Court grants a preliminary injunction of such scope, enjoining Defendants from taking any adverse or punitive action, including but not limited to disciplinary or separation measures, against the Plaintiffs in this case for their refusal to receive the COVID-19 vaccine, while keeping in place the current temporary exemption. 

The Court's conclusion is not affected by the Supreme Court's recent decision in Austin v. U.S. Navy Seals 1-26, 2022 WL 882559, or Justice Kavanaugh' s concurrence which cautions against intervention in the military' s chain of command. That case is distinguishable from the present one, and this Court's injunction. As set forth below, the injunction in this case is limited to solely these Plaintiffs and only maintains the status quo by maintaining the current temporary exemptions and prohibiting adverse or punitive action against those Plaintiffs for their refusal to receive the COVID-19 vaccine. It does not affect the Air Force's ability to make operational decisions, including deployability decisions.

Liberty Counsel issued a press release announcing the decision.

New Ohio Law Allows Religious Apparel For Student Athletes

On Feb. 28, Ohio Governor Mike DeWine signed into law Senate Bill 181 (full text) which allows students to wear religious apparel while competing in inter-scholastic athletic competitions or extracurricular activities.  A limited exception allows regulation where the apparel would create a legitimate danger. In such cases, reasonable accommodation is required. Don Byrd has additional background on the law.

Ohio Law On Disposal Of Tissue After Abortion Is Enjoined

In Planned Parenthood Southwest Ohio Region v. Ohio Department of Health, (OH Com. Pl, Jan. 31, 2022), an Ohio state trial court issued a preliminary injunction barring enforcement of an Ohio law (SB27) that was to take effect next week which requires embryonic and fetal tissue after a surgical abortion to be cremated or interred. The court held that reproductive autonomy and freedom of choice in health care are fundamental rights under the Ohio Constitution. It also pointed out that the effect of the law is to prevent surgical abortions before 13 weeks of pregnancy. Before that time, embryonic and fetal tissue cannot be separated from other pregnancy tissue which is required to be disposed of as infectious waste and cannot be interred or cremated. The court concluded that there is a substantial likelihood that plaintiffs will succeed on their claims that the law violates the due process and equal protection provisions of the state Constitution, and that it is unconstitutionally vague. Christian Post reports on the decision.

Public School Districts Challenge Expansion Of Ohio's Voucher Program

Suit was filed yesterday in an Ohio state trial court by five school districts and an organization comprised of dozens more, as well as by parents of school students, challenging the Ohio legislature's recent expansion of the EdChoice voucher program. The complaint (full text) in Columbus City School District v. State of Ohio, (OH Com. Pl., filed 1/4/2022), alleges that the expanded program violates Article VI, Sec. 2 of the Ohio Constitution which calls for creation of "a thorough and efficient system of common schools throughout the State" and provides that "no religious or other sect, or sects, shall ever have any exclusive rights to, or control of, any part of the school funds of this state." The complaint alleges in part:

148. The General Assembly’s continuing efforts to expand the EdChoice Program have been undertaken with full knowledge that these state funds would overwhelmingly benefit parochial schools, at the expense of Ohio’s public school students.

149. These private sectarian institutions will receive exclusive and unfettered control of approximately $250 million of Ohio’s school funding in Fiscal Year 2022....

150. Diverting almost a quarter of a billion dollars of taxpayer funding to the exclusive control of parochial schools violates the framers’ intent in retaining the full text of Article VI, Section 2 to ensure that public education funds would not be used to support religious sects, including parochial schools.

Columbus Dispatch reports on the lawsuit.

Hebrew Israelite Student Seeks $4M In Damages For Coach's Punishment That Violated His Religious Dietary Requirements

Suit was filed yesterday in an Ohio federal district court by a Hebrew-Israelite high school football team member who was told to eat a pepperoni pizza as discipline for missing a mandatory weight class. When the student objected that eating pork was a violation of his religious beliefs, he was allowed to remove the pepperoni, but still was forced to eat the pizza with pork residue on it. The complaint (full text) in K.W. (Junior) v. Canton City School District, (ND OH, filed 12/29/2021) alleges 1st and 14th Amendment, as well as other, claims saying in part:

All Defendants were fully aware of Junior’s religious beliefs; however, Defendants established practices and implemented actions that were antisemitic and/or in direct violation of Plaintiffs’sincere religious beliefs. therefore violating 42 U.S.C. § 1983.

WHEREFORE, Plaintiffs demand compensatory damages of $3,000,000.00 and punitive damages of $1,000,000.00.... [as well as] injunctive relief....

Other dollar amounts are sought for other causes of action set out in the complaint.  WKYC News reports on the lawsuit.

Denial Of Religious Exemptions To Vaccine Mandate Violated Free Exercise Rights

In Grantonz v. Earley, (ND OH, Dec. 10, 2021), an Ohio federal district court issued a temporary restraining order preventing the Cleveland Municipal Court from enforcing its COVID vaccine mandate against two employees (a bailiff and a court reporter) who sought, but were denied, religious exemptions. The court said in part:

Where the Cleveland Municipal Court Order compels Plaintiffs to choose between following their religious beliefs or forfeiting their jobs, it significantly burdens their free exercise of religion and is not neutral. Further, by setting up a mechanism for exemptions which are granted at Defendants’ discretion and without an opportunity for appeal, AO 2021-05 is not generally applicable....

The Cleveland Municipal Court’s Administrative Order AO 2021-05 does not pass the test of strict scrutiny. Defendants have not articulated compelling reasons for denial of religious exemptions. In the October 2, 2021 letters to Plaintiffs, in fact, Defendants provided no reasons whatsoever. A policy, such as the one before this Court, that infringes the free exercise of religion, that does not serve interests of the highest order and is not narrowly tailored to achieve those interests cannot survive strict scrutiny. 

Home-Based Synagogue Sues Over Zoning Restrictions

Suit was filed this month in an Ohio federal district court by a home-based synagogue in a Cleveland suburb alleging that the city's land use regulations violate the Religious Land Use an Institutionalized Persons Act, as well as the federal and state constitutions. The complaint (full text) in Aleksander Shul v. City of University Heights, Ohio, (ND OH, filed 10/13/2021), alleges in part:

Since 2009, Rabbi Shnior Zalman Denciger ... has engaged in prayer services at his residence.... The Property has become known throughout the City as the “Aleksander Shul,” ... that offers Orthodox Jewish prayer services in the Polish Chassidic style, and according to the unique customs of the Aleksander Chassidic sect, which was decimated by the Nazis during the Holocaust.

The City for many years permitted the Aleksander Shul to operate informally at the Property. For many residents of the City, the Aleksander Shul is the only place for them to exercise their religion because, pursuant to their Orthodox Jewish beliefs, they do not travel in cars on the Sabbath....The City, however, has taken various actions to shut down Orthodox Jewish shuls, including the Aleksander Shul, and the City’s zoning scheme makes it impossible to locate any parcel within the City where a place of worship can legally operate.

News 5 Cleveland has additional background on the lawsuit.

Ohio Enacts Conscience Protections For Medical Personnel and Institutions

On July 1, Ohio Governor Mike DeWine signed Am. Sub. House Bill 110, Ohio's Budget bill. (Signing ceremony.) Included in the 2438-page bill is a provision providing conscience protections for health care practitioners, institutions and insurers (at pg. 1453- 1455, enacting ORC Sec. 4743.10). The new section reads in part:

Notwithstanding any conflicting provision of the Revised Code, a medical practitioner, health care institution, or health care payer has the freedom to decline to perform, participate in, or pay for any health care service which violates the practitioner's, institution's, or payer's conscience as informed by the moral, ethical, or religious beliefs or principles held by the practitioner, institution, or payer. Exercise of the right of conscience is limited to conscience-based objections to a particular health care service.

... When possible and when the medical practitioner is willing, the medical practitioner shall seek to transfer the patient to a colleague who will provide the requested health care service. If participation in a transfer of care for a particular health care service violates the medical practitioner's beliefs or convictions or no willing colleague is identified, the patient shall be notified and provided the opportunity to seek an alternate medical practitioner. Upon patient request, the patient's medical records shall be promptly released to the patient.

The law provides for treble damage actions and injunctive relief for medical personnel where the new conscience provisions have been violated.

Metro Weekly reports on the enactment of this provision. [Thanks to Scott Mange for the lead.]

ISIS Supporter Pleads Guilty To Planning Ohio Synagogue Attack

The U.S. Attorney's Office for the Northern District of Ohio announced that yesterday Damon M. Joseph, aka Abdullah Ali Yusuf, pleaded guilty today to attempting to commit a hate crime by planning an ISIS-inspired attack on a synagogue in the Toledo, Ohio area. He also pleaded guilty to providing material support to ISIS and the Islamic State of Iraq. According to the Cleveland Jewish News, a preliminary plea agreement provides for a 20-year prison sentence for Joseph.

6th Circuit En Banc Upholds Ohio's Ban On Doctors Knowingly Performing Abortions Because of Down Syndrome

In Preterm-Cleveland v. McCloud, (6th Cir., April 13, 2021), the U.S. 6th Circuit Court of Appeals sitting en banc in a complicated set of fragmented opinions spanning 111 pages upheld Ohio's statute which prohibits a doctor from performing an abortion if the doctor has knowledge that the woman’s reason, in whole or part, for having the abortion is that she does not want a child with Down syndrome. The vote was 9-7. 

Eight judges joined several portions of Judge Batchelder's opinion to make these portions the opinion of the court.  Critical to the majority opinion was the fact that the law does not apply so long as the woman does not disclose the reason for her abortion to the doctor performing it. Indeed, according to the majority, even if the doctor performing the abortion learns of the fetal-Down-syndrome diagnosis, "knowledge of the diagnosis is not knowledge of the reason." With that understanding, the majority went on to say in part:

The right to an abortion before viability is not absolute. The “[S]tate may regulate abortion before viability as long as it does not impose an undue burden on a woman’s right to terminate her pregnancy.”...

H.B. 214 advances the State’s legitimate interests and will not prevent a large fraction of the women it affects from obtaining abortions. As mentioned, H.B. 214 furthers three valid and legitimate interests by protecting: (1) the Down syndrome community from the stigma associated with the practice of Down-syndrome-selective abortions, (2) pregnant women and their families from coercion by doctors who advocate abortion of Down-syndrome-afflicted fetuses, and (3) the integrity and ethics of the medical profession by preventing doctors from becoming witting participants in Down-syndrome-selective abortions. These are legitimate interests....

The burdens here are that H.B. 214 will (1) prevent a full, open, and honest conversation with the doctor who will perform the abortion by forcing the woman to withhold this reason for the abortion and (2) require her to engage in “doctor shopping” to find a doctor who is unaware of her reason for having the abortion....

Ohio’s broad definition of knowledge does not alter the reality that the woman remains in control of who knows, and who does not know, the reason for her abortion. And the record simply does not support the notion that a large number of doctors would independently learn of the reason such that it would place a substantial obstacle in the path of most women seeking abortions.... Ohio’s knowledge requirement does not amount to an undue burden.

Only five judges joined other parts of Judge Batchelder's opinion. Four separate concurring opinions were filed, as were six separate dissenting opinions. Cincinnati Enquirer reports on the decision.

UPDATE: For additional discussion of the case, see this later posting.

6th Circuit: County COVID Order Closing All High Schools Infringes Parochial Schools' Rights

In Monclova Christian Academy v. Toledo-Lucas County Health Department, (6th Cir., Dec. 31, 2020), the U.S. 6th Circuit Court of Appeals granted an injunction pending appeal against enforcement of a health department order prohibiting in-person attendance for Grades 7-12 at the nine Christian and Catholic schools bringing suit. The health department order imposed the same restrictions on public and secular private schools in the Ohio county. The court held that in deciding whether religious schools are treated less favorably than comparable secular activities, it is not enough that secular schools are treated in the same manner:

In Lucas County, the plaintiffs’ schools are closed, while gyms, tanning salons, office buildings, and the Hollywood Casino remain open. Cuomo makes clear that those secular facilities are “comparable” for purposes of spreading COVID-19. 141 S. Ct. at 66; see also, e.g., Roberts, 958 F.3d at 414. The Resolution’s restrictions therefore impose greater burdens on the plaintiffs’ conduct than on secular conduct.

The court also rejected the state's argument that the schools' exercise of religion was not burdened because the order allowed the schools to open for religious education classes and religious ceremonies. The court said in part:

... [N]o one argues that the Department has targeted the plaintiffs’ schools or acted with animus toward religion here. But the plaintiffs argue that the exercise of their faith is not so neatly compartmentalized. To the contrary, they say, their faith pervades each day of in-person schooling.... We have no basis to second-guess these representations.... The Department’s closure of the plaintiffs’ schools therefore burdens their religious practice.

Josh Blackman at Volokh Conspiracy reports on the decision.

Ohio County's School Closure Order Upheld

In Monclova Christian Academy v. Toledo- Lucas County Health Department, (ND OH, Dec. 14, 2020), an Ohio federal district court refused to issue a temporary restraining order against COVID-19 rules which bar in-person instruction at the high school level, and bar use of schools for various activities. The suit was filed by three Christian schools and an organization of Christian and Catholic schools.  The court said in part:

The nature of Plaintiffs’ arguments stems in part from their assertion that the educational courses they offer to their students are inextricably intertwined with their religious beliefs and, therefore, to prohibit Plaintiffs from holding classes in the manner in which they believe is most consistent with the tenets of their faith is to interfere with the free exercise of their faith....

While, as Plaintiffs note, TLCHD has not ordered gyms, tanning salons, or casinos to close, ... these are not the relevant “comparable secular activities.” Instead, the comparable secular activities are educational classes offered by all other schools in Lucas County. These specific environments have substantially similar groupings and movements of individuals....

Plaintiffs’ arguments ... would extend to prohibit the government from regulating any aspect of a Christian’s public life because, as Plaintiffs’ mission statements make clear, the purpose of providing “a biblical foundation for . . . students” is to prepare students “to exemplify Christ [and] make Biblically-based decisions” throughout an individual’s life, and not only during the schools years.

6th Circuit Hears Oral Arguments In Case of Prof Who Refused To Use Student's Preferred Pronouns

The U.S. 6th Circuit Court of Appeals on Thursday heard oral arguments in Meriwether v. Hartop.(Audio of full oral arguments.) In the case, an Ohio federal district court dismissed a lawsuit by a college philosophy professor who was disciplined by a university when he refused to abide by the school's non-discrimination policy.  The professor refused to address a transgender student using the student's preferred gender identity title and pronouns, and instead used only the student's name. (See prior posting.) Portsmouth Daily Times reports on the oral arguments.

Ohio Law Bans COVID Orders That Close Houses of Worship

Ohio Governor Mike DeWine yesterday signed into law HB272 (full text) which prohibits any public official from issuing an order to close all places of worship in the state or in a geographic region of the state. The bill responds to actions in other states closing churches to prevent the spread of COVID-19.  AP reports on the Governor's action.

Ministerial Exception Doctrine Does Not Apply To Hostile Work Environment Claim

In Middleton v. United Church of Christ, (ND OH, Aug. 26, 2020), an Ohio federal district court held that the ministerial exception doctrine does not preclude a minister bringing a hostile work environment claim, at least where the claim does not involve the court in excessive entanglement with religious matters. The court said in part:

[A]fter examining Middleton’s first cause of action, the court concludes that it does not implicate “any matters of church doctrine or practice.” ... Middleton’s hostile workplace claim involves allegations of racial and gender harassment that are wholly unrelated to Defendants’ religious teachings. ....

Nevertheless the court went on to dismiss the hostile work environment claim, saying in part:

While Middleton describes interactions that are unprofessional and unpleasant, none of the alleged conduct was physically threatening or humiliating. At most, these sporadic comments constituted “offensive utterances,” which “do not rise to the level required by the Supreme Court’s definition of a hostile work environment.”

The court held that plaintiff's breach of contract and promissory estoppel claims were barred by the ministerial exception doctrine. [Thanks to Heather Kimmel for the lead.]