Amish Couple Required To Connect Property To Sewer System With Electric Pump

In Yoder v. Sugar Grove Area Sewer Authority, (Commonwlth. Ct. PA, Jan. 5, 2018), a Pennsylvania state appellate court, in a 2-1 decision, upheld the denial of an injunction sought by an Old Order Amish couple who object to the requirement that they connect to the local sewer system using an electric pump.  The dispute has wound its way through the courts for over five years.  (See prior related posting.)  The majority said in part:

Owners did not establish the injunction would not harm the public, or that the harm in denying the injunction outweighed the harm in granting it. We defer to the trial court’s findings as to weighing the harms and the adverse effect of an injunction on the public health. After several years of litigation on multiple fronts, we recognize a strong interest in accomplishing the mandatory connection without further delay. Because there are apparently reasonable grounds for the trial court’s denial of preliminary injunctive relief, we affirm.

Judge McCullough dissented, relying on the state's Religious Freedom Protection Act. She argued that the trial court wrongly placed the burden on the property owners, rather than the sewer authority, to show the least restrictive means of furthering the state's interest.  She went on:

... [T]his case [should be] remanded to the trial court with the instruction to place the burden on the Authority to demonstrate the least intrusive means of non-electric connection to its sewer system. It may be that there are none and, if that is the case, then the trial court should re-open the issue of compelling Owners, against their sincerely held religious beliefs, to connect to the Authority’s sewer system. The Act requires the interest of the agency/authority to be “compelling” before it imposes a substantial burden on religious freedom. I question whether mandatory electric connection is such a compelling interest so as to countenance this infringement upon Owners’ religious freedom.

Abortion Clinic Buffer Zone Upheld

In Bruni v. City of Pittsburgh, (WD PA, Nov. 17, 2017), a Pennsylvania federal district court, in a case on remand from the 3rd Circuit (see prior posting), granted summary judgment to defendants in a case challenging Pittsburgh's ordinance that imposes a 15-foot buffer zone around abortion clinics and other health care facilities.  According to the court, "the undisputed evidence in this case demonstrates that the Ordinance places only a minimal burden on Plaintiffs’ First Amendment free speech rights."  The court went on:

Plaintiffs argue that the City should have considered any number of other alternatives prior to adopting the Ordinance, including targeted injunctions and/or the enforcement of antiharassment statutes.... [I]n light of the Court’s finding that the current law burdens very little speech to begin with, there is no reason to believe that any of these alternative measures would burden substantially less speech than does the current Ordinance.

BNA Daily Report for Executives [subscription required] reports on the decision.

Bus Driver Can Move Ahead With Religious Objection To Fingerprinting

In Kaite v. Altoona Student Transportation, Inc., (WD PA, Oct. 30, 2017), a Pennsylvania federal district court allowed a school bus driver to proceed with her religious discrimination and retaliation claims against her employer.  A newly enacted state law required the driver to undergo a background check, including fingerprinting.  According to the court, plaintiff, a devout Christian, sought an accommodation because of her belief that fingerprinting is the "mark of the devil" which is forbidden by the Book of Revelation.  Defendant refused any accommodation and dismissed plaintiff.  Legal Intelligencer reports on the decision.

No Unemployment Benefits Where Religious Objections Leading To Resignation Were Not Disclosed

In Kelly v. Unemployment Compensation Review Board, (Commonwealth Ct. PA, Oct. 17, 2017), a Pennsylvania appellate court affirmed the denial of unemployment compensation benefits to an employee who resigned her job for religious reasons, but did not first inform her employer of her religious concerns.  In the case, petitioner Lori Kelly worked as a project manager for the University of Pittsburgh's Health Science's Tissue Bank. Kelly, who is Catholic, became concerned when she learned that some of the fetal tissue samples whose distribution she facilitated came from aborted fetuses.  However she complained at work only about the contentious relationship she had developed with her immediate supervisor.  The court concluded:

Respectful of Claimant’s religious beliefs, we must nevertheless affirm the order of the Board denying Claimant unemployment compensation benefits under Section 402(b) based on her failure to notify Employer of her religious objections to Employer’s use of fetal tissue in GUDMAP. Such notification would have provided Employer with an opportunity to accommodate her religious objections by transferring her to a project that did not involve the use of fetal tissue.

Reluctant Judge Holds Cross On County Seal Is Unconstitutional

In Freedom From Religion Foundation, Inc. v. County of Lehigh, (ED PA, Sept. 28, 2017), a Pennsylvania federal district court held that a large, central Latin cross in the seal and flag of Lehigh County, Pennsylvania violate the Establishment Clause under the Lemon test and the endorsement test.  However Judge Edward Smith devoted much of his opinion to explaining why he disagrees with the Supreme Court's interpretation of the Establishment Clause:

If the drafters’ intent and the plain text of the Establishment Clause had alone guided the evolution of modern First Amendment jurisprudence and shaped the law applicable to this case, its resolution would be cut-and-dry. By including a Latin cross on the Seal, the County has chosen to celebrate the Christian values important throughout its history. The County has not, however, legally compelled its citizens to practice and conform to Christianity, infringed on freedom of conscience, or created political conflict between the Christian Church and other religious sects. Simply put, the County of Lehigh did not intend to “establish” religion or institute a County religion when it adopted Commissioner Herzog’s design for the Seal. And if it had intended to do so, it has certainly failed—one of the plaintiffs himself testified that per the 2010 census, 49 percent of the County reported no religious affiliation at all....

While such considerations appear to be a matter of common-sense in determining whether a government has established a religion in violation of the First Amendment, binding precedent has taken the inquiry in a different direction.

FFRF issued a press release announcing the decision.

UPDATE: The judgment ordering a permanent injunction (full text) was entered on Nov. 2, 2017, to become effective 180 days later, and, if an appeal is filed, with a stay (except for any new uses of the seal) while the appeal is pending.

Nuns Lose Challenge To Pipeline

In Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (ED PA, Sept. 28, 2017), a Pennsylvania federal district court dismissed for lack of jurisdiction a RFRA challenge by a Catholic order of nuns to the construction and operation of the Atlantic Sunrise gas pipeline through land owned by the order.  The nuns say their religious beliefs require them to protect and preserve creation.  The court held that the Natural Gas Act sets out a procedure for challenging a FERC grant of a certificate to build an interstate pipeline.  Plaintiffs here did not follow those procedures which require first that challengers request a rehearing from the agency, and then review by the Court of Appeals.  The court concluded that the Religious Freedom Restoration Act does not supersede the exclusive jurisdiction provision of the Natural Gas Act. Lancaster Online reports on the decision. (See prior related posting.)

State May Require Inspection of Release Time School Buses

In CBM Ministries of South Central Pennsylvania v. Richards, (MD PA, Sept. 19, 2107), a Pennsylvania federal district court held that to the extent state school bus inspection regulations apply to buses of a religious organization, the regulations do not violate the Free Exercise Clause.  They are a neutral and generally applicable regulation.  At issue were buses that are used to transport students from public schools to an off-premise release time Bible education program.

RLUIPA Suits Over Mosque Construction Are Settled

The Justice Department announced yesterday that a settlement agreement (full text) has been reached in United States v. Bensalem Township, Pennsylvania, as well as in a private suit involving the same underlying facts. In the  suit, the Justice Department alleged that the township violated RLUIPA in denying a zoning variance to permit Bensalem Masjid to construct a mosque on property near a commercial area. (See prior posting.)  The agreements call for approval of use of the property and for the Township to amend its zoning ordinances so they are compliant with RLUIPA. Bucks County Courier Times reports on the settlement.

Preliminary Injunction Denied To Students Opposed To Transgender Bathroom Access Policy

In Doe v. Boyertown Area School District, (ED PA, Aug. 25, 2017), a Pennsylvania federal district court refused to issue a preliminary injunction to bar a school district from continuing its year-old practice of allowing transgender students to use the bathrooms and locker rooms corresponding to their gender identity. Plaintiffs are students who claim that their right to privacy, as well as Title IX, are violated by the school's policy. According to the court:

At bottom, the plaintiffs are opposed to the mere presence of transgender students in locker rooms or bathrooms with them because they designate them as members of the opposite sex and note that, inter alia, society has historically separated bathrooms and locker rooms on the basis of biological sex to preserve the privacy of individuals from members of the opposite biological sex.

In a 142-page opinion the court held that plaintiffs had no shown that they are likely to succeed on the merits, saying in part:

The plaintiffs have not identified and this court has not located any court that has recognized a constitutional right of privacy as broadly defined by the plaintiffs.... 

WFMZ-TV News reports that an appeal is planned.

Court Dismisses Husband's Suit Over Pastor's Affair With Wife

In Laidlaw v. Converge Midatlantic, 2017 Phila. Ct. Com. Pl. LEXIS 203 (PA Com. Pl., July 19, 2017), a Pennsylvania trial court dismissed a suit brought by a husband who is seeking damages for a sexual affair between his wife and the pastor of the couple's church.  In prior years the pastor had furnished marriage counseling to the couple.  While the suit was framed as claims for negligence, infliction of emotional distress, fraud and defamation, the court held that these are in reality "heart balm" torts which were eliminated by case law and statute in Pennsylvania decades ago.  The court added:

Even if Appellant's claims were not barred as obsolete heart balm torts, the First Amendment to the United States Constitution requires this Court to dismiss them because they would constitute impermissible state intrusion upon religion. Appellant's claims against his church and pastor for the affair are wholly based in religious doctrine, perceived social pressures from his religious community, and his own faith-his personal faith in his pastor and in his church. Therefore, the Court would be forced to interpret and evaluate church canons, discipline, and faith to determine the merit of his claims.

Fired Legislative Staffer Can Move Ahead With Suit Alleging Use of State Funds To Promote Church Facility

In Ali v. McClinton, (ED PA, June 14, 2017), a Pennsylvania federal district court refused to dismiss on 11th Amendment grounds a suit against a member of the Pennsylvania House of Representatives in her personal capacity. The court permitted fired constituent services staffer El Shafiyq Asad Ali to move ahead on his 1st Amendment Establishment Clause claim and one of his Pennsylvania Whistleblower Law claims.  Ali alleges that Rep. Joanna McClinton fired him after he objected to McClinton's asking him to organize an event, to be paid for from state funds, at a Philadelphia Housing Authority site. The event was designed to promote a nearby facility that the Open Door Mission True Light Church planned to open.  Rep. McClinton is a minister at the Church.  The court however did dismiss Ali's religious discrimination claims, certain of his Whistleblower Act claims and all of his "official capacity" claims against McClinton and the Pennsylvania House of Representatives.

3rd Circuit Clarifies Burden of Proof For Preliminary Injunction In 1st Amendment Cases

In Reilly v. City of Harrisburg, (3rd Cir., May 25, 2017), a suit challenging a city's ban on demonstrations within 20 feet of any abortion clinic property, the 3rd Circuit clarified the burden of proof requirement for a preliminary injunction in 1st Amendment cases:

...[A] movant for preliminary equitable relief must meet the threshold for the first two “most critical” factors: it must demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief. If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief.... “How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” ...

In deciding whether to issue a preliminary injunction, plaintiffs normally bear the burden of demonstrating a sufficient likelihood of prevailing on the merits. However, in First Amendment cases where “the Government bears the burden of proof on the ultimate question of [a statute’s] constitutionality, [plaintiffs] must be deemed likely to prevail [for the purpose of considering a preliminary injunction] unless the Government has shown that [plaintiffs’] proposed less restrictive alternatives are less effective than [the statute].”.... This is because “the burdens at the preliminary injunction stage track the burdens at trial,” and for First Amendment purposes they rest with the Government.

Challenge To Pennsylvania Legislative Prayer Practices Survives Motion To Dismiss

In Fields v. Speaker of  the Pennsylvania House of Representatives, (MD PA, April 28, 2017), a Pennsylvania federal district court in a 33-page opinion refused to dismiss on the pleadings an Establishment Clause challenge to the Pennsylvania House of Representatives invocation policy.  House members may nominate "guest chaplains" to deliver an invocation at the beginning of a House session.  However House rules, as administered by the Speaker, do not permit non-theists to serve as guest chaplains. Plaintiffs are atheists, agnostics, secular humanists and freethinkers who have been denied the opportunity to deliver an invocation.  According to the court:

Plaintiffs plead a policy of religious discrimination sufficient to state a First Amendment claim.

Whether history and tradition sanctify the House‟s line of demarcation between theistic and nontheistic chaplains is a factual issue for a later day. Establishment Clause issues are inherently fact-intensive, and we must resist the academic intrigue of casting the salient inquiry too narrowly at this juncture. To the extent the parties‟ arguments evoke more nuanced constitutional questions— e.g., whether plaintiffs practice “religion” and are capable of “praying,” or whether tradition dictates that legislative prayer address a “higher power”—any such determination demands, and deserves, a fully developed record. As it stands, plaintiffs‟ challenge to the House‟s legislative prayer policy survives Rule 12 scrutiny.

The court also permitted two of the plaintiffs to move ahead with their challenge to the requirement that members of the public in attendance stand during the invocation.  On one occasion the Speaker publicly singled out plaintiffs for remaining seated.

The Court dismissed Free Exercise, Free Speech and Equal Protection challenges to the prayer policy, finding that legislative prayer is "government speech."

No 1st Amendment Bar To Deciding Catholic College's Student Expusion

In Chestnut Hill College v. Pennsylvania Human Relations Commission, (PA Commnwlth. Ct., April 7, 2017), the Pennsylvania Commonwealth Court (an appellate court) held that a Catholic college’s decision to expel a student is reviewable by the Pennsylvania Human Relations Commission.  The college expelled an African American student a few weeks before his scheduled graduation, allegedly because the student retained some of the proceeds from events that were held for a charitable cause.  The student claimed this was a pretext for racial discrimination.

The court held that Catholic colleges and universities are "public accommodations" under the state's Human Relations Act.  It held that adjudicating the claim would not involve unconstitutional entanglement between church and state, saying:

Student’s claims do not require the Commission to construe religious doctrine. Importantly, College did not identify any Catholic doctrine as grounds for Student’s expulsion.

The court also emphasized that the college "did not cite any religious doctrine based defense to Student’s racial discrimination claims."

High Schooler Sues Over School's Transgender Policy

A suit was filed last week in a Pennsylvania federal district court on behalf of a high school student who contends that his privacy rights, as well as his rights under Title IX, were infringed when his high school permitted transgender students to use locker rooms and rest rooms consistent with their gender identity rather than their biological features.  The complaint (full text) in Doe v. Boyertown Area School District, (ED PA, filed 3/21/2017) alleges that when plaintiff found himself sharing a locker room with a partially undressed individual who was anatomically female, he suffered embarrassment, humiliation, degradation and loss of dignity.  ADF issued a press release announcing the filing of the lawsuit.

Pennsylvania Diocese Reaches Agreement With Prosecutors On New Child Protection Measures

As previously reported, a year ago a Pennsylvania Grand Jury filed a lengthy Report on sexual abuse of children by Pennsylvania Catholic clergy. On Monday, the U.S. Attorney's Office for the Western District of Pennsylvania and the Diocese of Altoona-Johnstown announced a memorandum of understanding on reforms by the Diocese, summarizing the core reforms as follows:

• The creation of an independent, multidisciplinary oversight board;
• The retention of an outside expert to develop a new, comprehensive child abuse prevention program;
• A reporting protocol that requires the Diocese to report allegations of child sexual abuse to law enforcement within twelve hours after receipt; and
• Counseling and support services for victims by qualified and independent mental health professionals chosen by the victims.

Reporting on the new agreement, AP says that it also requires the Diocese to immediately take priests accused of abuse out of positions where they have contact with minors, and place them on leave within 24 hours.

In Settlement, School Will Remove Ten Commandments Monument

The Freedom From Religion Foundation announced yesterday that it has reached a successful settlement with a Pennsylvania school district in FFRF's suit seeking removal of a 6-foot tall Ten Commandments monument from a high school's lawn. The settlement agreement (full text) in Freedom From Religion Foundation, Inc. v. New Kensington Arnold School District provides that the school district will remove the monument within 30 days of the effective date of the settlement agreement.  The school district's insurance company will also pay plaintiffs' attorneys fees and costs of $163,500.  The suit, originally filed in 2012, went to the 3rd Circuit last year which upheld standing of at least some of the plaintiffs to bring the lawsuit. (See prior posting.)

School Bus Driver Wants Religious Exemption From Fingerprints In Background Check

A former bus driver for the company that transports Altoona, Pennsylvania school students has filed a religious discrimination suit in federal district court in Pennsylvania.  According to yesterday's Altoona Mirror, a recently enacted state law required bus driver Bonnie F. Kaite to undergo a criminal background check.  She sought a religious accommodation because of her Christian religious beliefs, seeking a background check that does not require her to be fingerprinted. She says that she cannot be fingerprinted because of  the verse in the Book of Revelation prohibiting the "mark of the devil."

3rd Circuit: Church Welcome Sign Does Not Violate Establishment Clause

In Tearpock-Martini v. Shickshinny Borough, (3d Cir, Jan. 4, 2017), the U.S. 3rd Circuit Court of Appeals rejected an Establishment Clause challenge to a church sign put up by a Pennsylvania town on a right-of-way near plaintiff's home.  The sign depicts a cross and a Bible and reads "Bible Baptist Church Welcomes You!", and has an arrow pointing toward the church.  The court concluded that plaintiff failed to show that the Borough treated the Church more favorably than others.

Church Entitled To Hearing On Religious Liberty Defense To Day Care Licensing

In Our Lady of Victory Catholic Church v. Department of Human Services, (PA Commonw. Ct., Oct. 31, 2016), a 3-judge panel of the Pennsylvania Commonwealth Court held that the Pennsylvania Department of Human Services has authority to issue cease and desist orders to enforce its regulations requiring any daycare center that cares for seven or more children to obtain a certificate of compliance.  However the court remanded for an evidentiary hearing the church's claim that requiring a certificate of compliance for its preschool (which it claims is part of its religious ministry) infringes its free exercise rights under the federal and state constitutions and under Pennsylvania's Religious Freedom Protection Act.  The Legal Intelligencer reports on the decision.