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. 

4th Circuit Hears Oral Arguments In Conversion Therapy Ban Challenge

Yesterday the U.S. 4th Circuit Court of Appeals heard oral arguments in Doyle v. Hogan. (Audio of full oral arguments.) In the case, a Maryland federal district court dismissed free speech and free exercise of religion challenges to Maryland's ban on mental health professionals engaging in conversion therapy with minors. (See prior posting.) Courthouse News Service reported on yesterday's proceedings, saying that questions of standing to sue dominated the arguments.

Religious Education Companies Face No Threat Under Indiana Cities' Anti-Discrimination Law

 In Indiana Family Institute, Inc. v. City of Carmel, (IN App., Sept. 10, 2020), an Indiana state appellate court dismissed a suit brought by two companies offering religion-based education programs against four Indiana cities. Plaintiffs claim that their exclusion of same-sex married couples from their events would subject them to various penalties under the cities' non-discrimination ordinances, and that protections in Indiana's RFRA are not broad enough to cover them. The court however found that the companies face no threat of injury, saying in part:

The Companies do not require event attendees to share the same religious beliefs, and the Companies’ own designated evidence demonstrates that they have permitted “many gay people” to attend their programs....

Although the Companies claim that their rights to hold events in the Cites are chilled because of the ordinances’ failure to exempt their activities from enforcement, none of the Companies have been the subject of a complaint or investigation; nor have they been threatened with sanctions or penalties.... 

[T]he Companies have failed to show how the ordinances subjected them to an imminent threat of harm or that they faced a credible threat of prosecution.

Establishment Clause Challenge To BLM Mural Dismissed For Lack of Standing

 In Penkoski v. Bowser, (D DC, Aug. 21, 2020), the D.C. federal district court dismissed for lack of standing a suit filed by a pastor and two lobbyists challenging the two-block long painting of "Black Lives Matter" on the pavement of 16th Street near the White House. Identifying themselves as non-Black Christians, plaintiffs claim that the painting violates both the Equal Protection Clause and the Establishment Clause. According to the court:

They claim that the Mural violates the Equal Protection Clause and the Establishment Clause because it labels them—non-black Christians—“second class citizens.” ... The “Black Lives Matter cult,” they allege, “is a denominational sect of the religion of Secular Humanism.” ... This is evidenced both by the BLM protestors’ behavior ... and the “scriptures lifted from the Black Lives Matter’s marxist liturgical creed".... The Mural, Plaintiffs claim, signals the District’s preference both for black citizens and for those that adhere to the BLM denomination.

The court found a lack of standing as to plaintiffs'equal protection claim, saying in part:

The Court does not doubt the sincerity of Plaintiffs’ feelings of ostracization nor quibble with their claims about the divisiveness of the Mayor’s actions.... But these feelings alone cannot justify standing.

It similarly found a lack of standing on plaintiffs' Establishment Clause claim, saying in part:

[A]s with their equal protection claim, Plaintiffs assert a psychological, stigmatic injury for their Establishment Clause claim....

[T]he development of the Establishment Clause and standing doctrines over the past fifty years counsels against adopting offended observer standing here and now, when no contrary precedent binds this Court. The Court, thus, declines to find that Penkoski, Sevier, and Christopher have standing just because they have been “expose[d]” to a display that offends them.

Challenge To Anti-Discrimination Exemptions For Foster Care Agencies Moves Ahead

 In Maddonna v. U.S. Department of Health and Human Services, (D SC, Aug. 10, 2020), a South Carolina federal district court allowed a prospective foster parent to challenge state and federal exemptions from anti-discrimination requirements that allowed a Catholic foster care agency to work only with families that share the agency's religious beliefs.  Even though the case had once been dismissed, without prejudice, for lack of standing (see prior posting), the court now found standing.  The court then refused to dismiss plaintiff's Establishment Clause claim, saying in part:

Plaintiff has plausibly alleged that Defendants conveyed a message endorsing religion by allowing state-licensed, government-funded CPAs to reject prospective foster parents based on religious criteria....

“[T]he core rationale underlying the Establishment Clause is preventing ‘a fusion of governmental and religious functions[.]’” ... According to the Complaint, the system which Defendants’ “accommodations” have created “does not by its terms require that [religiously affiliated CPAs’] power be used in a religiously neutral way.” ... Rather, under the Executive Order and the HHS Waiver, religiously-affiliated CPAs’ power to accept or reject prospective foster parents is completely “standardless, calling for no reasons, findings, or reasoned conclusions.”

Christian Post reports on the decision.

9th Circuit: Church Has Standing To Challenge California Abortion Coverage Mandate

In Skyline Wesleyan Church v. California Department of Managed Health Care, (9th Cir., May 13, 2020), the U.S. 9th Circuit Court of Appeals reversed a California federal district court's ruling on standing and ripeness in a challenge to the mandate that insurance policies cover legal abortion services.  The appeals court held that the church plaintiff has standing to challenge the requirement on free exercise grounds and that the claim is ripe for review. Courthouse News Service reports on the decision.

Free Exercise Challenge To St. Louis COVID-19 Order Dismissed On Standing Grounds

In Hawse v. Page, (ED MO, May 11, 2020), a Missouri federal district court held that plaintiffs lack standing to bring a free exercise challenge to the St. Louis County's COVID-19 order limiting religious gatherings to ten persons. The court said in part:

Here, Plaintiffs state that they are bringing a "facial challenge" to the constitutionality of the Order.... Plaintiffs allege that they are Christians and that Sunday church services are important to their worship.....Plaintiffs allege that their churches are large enough to allow social distancing and have hand sanitizer and other hygiene products to allow for safe gatherings.... Plaintiffs, however, do not identify their religious denominations, organizations, or specific places of worship in the Complaint. Plaintiffs do not allege when their respective churches closed or what caused them to close. Plaintiffs do not allege that their large church gatherings were suspended because they were unlawful under the Order, rather than in response to the general COVID-19 public health crisis....  Thus, based upon the Complaint, the Court is unable to discern the specific impetus for closure of Plaintiffs' churches and, likewise, what would enable their churches to reopen. 

The court however refused to dismiss plaintiffs' due process challenge at this time, asking for further briefing on the issue.

Church Lacks Standing To Challenge State's Insurance Coverage Mandate

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, May 6, 2020), a Washington federal district court refused to grant a preliminary injunction to a church that objects to Washington's SB 6219 which requires all health insurance plans to cover all FDA-approved contraceptive products. The court concluded that the church lacks standing to pursue the claim, saying in part:

Cedar Park has failed to establish that any injury is fairly traceable to SB 6219. When Cedar Park needed to renew its health insurance plan on September 1, 2019, there was no product in the marketplace that complied with Cedar Park’s preferred requirements. Cedar Park has failed to establish that this absence of a product was because of SB 6219. In fact, Cedar Park’s previous plan did not conform to its beliefs despite SB 6219 not having legal effect when Cedar Park purchased that plan. Now, Providence offers what appears to be an acceptable product despite the continued applicability of SB 6219. Thus, Cedar Park has failed to establish an injury or an injury that is fairly traceable to SB 6219.

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.”

8th Circuit: Catholic Hospital Retirement Plan Is Exempt From ERISA

In Sanzone v. Mercy Health, (8th Cir., March 27, 2020), the U.S. 8th Circuit Court of Appeals held that the retirement plan of a Catholic-affiliated hospital qualifies for the "church plan" exemption under ERISA. The court however remanded the case for consideration of whether deprivation of ERISA protections created sufficient injury to confer standing to challenge the church plan exemption as an Establishment Clause violation.  Reuters reports on the decision.

Supreme Court To Hear Arguments Today In High-Profile Abortion Case

Today, the U.S. Supreme Court hears oral arguments in a high profile abortion case-- June Medical Services v. Russo. At issue is the constitutionality of the Louisiana Unsafe Abortion Protection Act which requires any abortion provider to have admitting privileges at a hospital within 30 miles of the location where abortions are performed. In March 2016, the U.S. Supreme Court summarily upheld a preliminary injunction issued by the district court preventing the Act from going into effect. In September 2018, the U.S. 5th Circuit Court of Appeals reversed the district court and upheld the statute. In January 2019, the full 5th Circuit, by a vote of 6-9, denied en banc review. Plaintiff appealed the substantive holding to the Supreme Court. The state cross-appealed the grant of third-party standing to the abortion clinic plaintiff. (See prior posting.) Meanwhile in February 2019 the Supreme Court stayed the 5th Circuit's decision pending appeal to the Supreme Court, with four justices dissenting. The SCOTUS blog case page has links to all the filings (including dozens of amicus briefs) in the case, as well as to commentary on the case.

I will post a link to the transcript of the oral arguments when they become available later today.

Attorney Has Standing To Challenge Judge's Prayer Practices

In Freedom From Religion Foundation, Inc. v. Mack, (SD TX, Jan. 13, 2010), a Texas federal district court held that an attorney has standing to challenge a Texas Justice of the Peace's practice of having his court sessions opened with a prayer. The attorney, who is non-religious, has declined clients in order to avoid the judge's courtroom. The court said in part:

Here, Attorney Roe has offered testimony that he practices law in Montgomery County, Texas, has appeared in Judge Mack’s courtroom on several occasions, and that he avoids the courtroom because of Judge Mack’s practice. The harm alleged does not occur only because he enters the courtroom, but also because he must avoid the courtroom since the practice continues. Therefore, there is a substantive risk that were he to accept a case in Judge Mack’s court, he will be exposed to the prayer practice. Hence, Attorney Roe has satisfied the standing requirements.

Judge Mack also challenges the FFRF’s standing. Because the Court has determined that Attorney Roe has standing, the FFRF has associational standing.

Satanic Temple Can Proceed In Its Attempt To Offer City Council Invocation

In The Satanic Temple, Inc. v. City of Scottsdale, (D AZ, Nov. 18, 2019), an Arizona federal district court refused to dismiss a suit by The Satanic Temple (TST). Scottsdale City Council refused to allow the head of TST to deliver an invocation at a City Council meeting. The court, in finding that plaintiffs had standing to bring the lawsuit reasoned in part:

The injury alleged is discrimination – that Plaintiffs have been denied the opportunity to give an invocation when other religious groups have been allowed that privilege....

Although Establishment Clause violations can be asserted by the irreligious as well as the religious, such as a non-believing school student who is compelled to recite a prayer, Plaintiffs’ religious-discrimination claim necessarily requires that they be a religion....

In arguing that Plaintiffs are not religious, Defendant does not rely on any specific judicial definition. Defendant instead asserts that courts have distinguished between religious and secular prayers in legislative prayer cases....

The evidence discussed above suggests that Plaintiffs view their beliefs as religious and sincerely held. Whether Plaintiffs are religious for purposes of the merits of this case – for purposes of showing that the City’s action in the sphere of legislative prayer amounted to religious discrimination – is an issue for trial.

Organization Lacks Standing To Claim Sexual Orientation Discrimination By Christian Business Owners

In Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals, (KY Sup. Ct., Oct. 31, 2019), The Kentucky Supreme Court dismissed on standing grounds a suit against a small business whose Christian owners refused on religious grounds to print T-shirts for a Pride Festival. The court held that because the discrimination complaint was filed only by a gay-rights organization, plaintiff lacks statutory standing:

[B]ecause an “individual” did not file the claim, but rather an organization did, we would have to determine whether the organization is a member of the protected class, which we find impossible to ascertain. No end user may have been denied the service who is a member of the protected class, or perhaps one was. If so, then the determination would have to follow whether the reason for denial of service constitutes discrimination under the ordinance, and then whether the local government was attempting to compel expression, had infringed on religious liberty, or had failed to carry its burden under KRS 446.350. But without an individual, as required by Section 2-32(2)(a), this analysis cannot be conducted.

Justice Buckingham filed a concurring opinion, arguing that the Human Rights Commission had unconstitutionally attempted to compel the business to express ideas with which it disagreed. [Thanks to Tom Rutledge for the lead.]

Preliminary Injunction Denied In Challenge To Conscience Provisions In Insurance Law

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, Aug. 2, 2019), a Washington federal district court denied a preliminary injunction against a group of Washington state provisions that plaintiff claims requires it to pay for abortifacient contraceptive coverage for individuals in its health insurance plan. At issue is an Attorney General's Opinion that says the insurance commissioner may require insurance companies to to include the cost of prescription contraceptives in the rate setting actuarial analysis where an employer raises a conscientious objection to paying these costs directly as a part of it benefit package. The court found that plaintiff lacks standing to assert the claim at this point because:

Cedar Park has not provided evidence that insurance costs are in fact calculated or charged in a manner to which it has a religious objection...

The court also dismissed on ripeness grounds, saying that plaintiff "cites no communications from or statements of the State which could form the basis of Cedar Park’s belief that it will be subject to enforcement..." The court however allowed plaintiff to file an amended complaint contending that it is treated less favorably than religious organizations which are health care providers, carriers, and facilities.

Church That Is Potential Trust Beneficiary Lacks Standing To Seek Independent Trustee

In In re Trust of Mary Baker Eddy, (NH Sup. Ct., June 14, 2019), held that a Christian Science church in Australia that is a potential beneficiary of a trust created under the will of Christian Science founder Mary Baker Eddy lacks standing to seek the appointment of an independent trustee. The New Hampshire Supreme Court concluded that the Australian congregation failed to show that it had a sufficient special interest in the trust to create standing. Sentinel & Enterprise News reports on the decision.

Challenge To NY Favoritism of Yeshivas Dismissed For Lack of Standing.

In Young Advocates for Fair Education v. Cuomo, (ED NY, Jan. 16, 2019), New York federal district court dismissed for lack of standing and ripeness a challenge to the constitutionality of the "Felder Amendment" which plaintiff claims was designed to reduce the level of secular education that needs to be offered by Hasidic Jewish schools in New York. Plaintiffs alleged that the Felder Amendment creates an unconstitutional preference for Hasidic Jewish schools. While not reaching the merits, the court suggested that state regulations may have made standards for religious schools more rigid. Yeshiva World reports on the decision.

Teacher Lacks Standing To Challenge Contraceptive Mandate Exemptions

In Campbell v. Trump, (D CO, Sept. 11, 2018), a Colorado federal district court held that a teacher in a private school lacks standing to challenge the Trump administration rules that allow employers to refuse on religious or moral grounds to provide health insurance coverage for contraceptive services. Plaintiff currently has coverage in her employer's policy but argues that she fears her employer might withdraw coverage.  The court held:

There are no factual allegations in the complaint that support an inference that injury to plaintiff, economic or otherwise, is “actual and imminent” as required to constitute an injury in fact under Article III standing principles.

No Standing To Assert Jewish Tenant's Free Exercise Objection To Saturday Eviction

Hurley v. Town of Southampton, 2018 U.S. Dist. LEXIS 137089 (ED NY, Aug. 13, 2018) involves various claims by the owner of a rental property stemming from his prosecution for violating Southampton's transient rental law. In the case, a federal magistrate judge recommended dismissing for lack of standing the owner's assertion that the free exercise rights of one of his tenants were violated when he was evicted by Code Enforcement officials. Plaintiff claimed that the Saturday eviction of the tenant and his children forced the tenant, an Orthodox Jew, to drive his car on the Sabbath in violation of his religious beliefs.

Street Preacher Denied Preliminary Injunction Against Trespass Policy of Sports Arena

In Lacroix v. Lee County, Florida, (MD FL, July 23, 2018), a Florida federal district court denied a preliminary injunction sought by a street preacher who was not permitted to preach on the premises of a county-owned sports arena which was hosting a concert. Plaintiff claimed that the Lee County Special Events Permitting Ordinance, and the trespass policy enforced in connection with special events on county property, violate his free speech and free exercise rights. The court concluded that plaintiff's pleadings failed to show that he meets various prerequisites for standing, and that he does not face imminent irreparable harm.