6th Circuit: County's Use of Religiously Sponsored School For Alternative Program Did Not Violate Establishment Clause

In Smith v. Jefferson County Board of School Commissioners, (6th Cir., June 11, 2015), the U.S. 6th Circuit Court of Appeals, reversing the trial court, held that a Tennessee school board did not violate the Establishment Clause when, in the context of a budgetary crisis, it contracted with Kingswood, a private Christian school, to provide a state-mandated alternative program.  District students who had been suspended or expelled from their regular middle- or high-school were enrolled in Kingswood's "day" (as opposed to its more religious "residential") program. In a suit brought by two teachers who lost their jobs when the prior the board-run alternative school closed, the court said in part:

Here, a reasonable observer would not interpret the School Board’s relationship with Kingswood as a governmental endorsement of religion. Parents and students, for example, encountered only de minimis religious references in Kingswood’s day program. The evidence indicates that students in the day program were not exposed to any religious instruction, prayer, or any mentions of religion at all. Their school building was devoid of any religious imagery. Their assemblies in the chapel were as close as the day students came to religious exposure, and yet those assemblies were completely secular activities.

Perhaps the most overt religious references were the Biblical quotes on the report cards, family-feedback forms and—for those who sought them out—the annual report and school improvement plan.   But a reasonable observer would view all of these in the specific context of the arrangement that Kingswood had with Jefferson County. A budgetary crisis forced the Board to close its alternative school and, needing to accommodate the alternative-school students on short notice, the Board selected a high-performing, state-certified alternative school...

An ACLJ press release discusses the decision.

UPDATE: In the case, Judge Batchelder filed an opinion concurring in part and concurring in the result, but saying: "I cannot agree with the lead opinion’s dismissing as irrelevant last year’s Supreme Court opinion in Town of Greece." She said that while lower courts are required to follow Supreme Court decisions invoking the "endorsement" test until the Court explicitly overrules them, the Supreme Court appears to have rejected that test in favor of the historical "coercion" test.

Tennessee Senate Kills Bill To Make Bible the Official State Book

According to The Tennessean, the Tennessee state Senate yesterday effectively killed the controversial bill, passed by the House a day earlier, that would have made the Bible the state's official book. The Senate voted 22-9 to send the bill back to the Judiciary Committee for study in light of the state attorney general's opinion concluding that the bill was unconstitutional. (See prior posting.) Republican Senate Majority Leader Mark Norris, who led the effort to send the bill back to committee, said:

All I know is that I hear Satan snickering. He loves this kind of mischief. You just dumb the good book down far enough to make it whatever it takes to make it a state symbol, and you're on your way to where he wants you.

 Lt. Gov. Ron Ramsey, another critic of the bill, said:

We don't need to put the Bible beside salamanders, tulip poplars and 'Rocky Top' in the Tennessee Blue Book to appreciate its importance to our state.

[Thanks to Blog From the Capital for the lead.] 

Tennessee AG Says Bill To Make Bible the State Book Is Unconstitutional; House Passes It Anyway

On Monday, Tennessee Attorney General Herbert Slatery issued Opinion No. 15-34 concluding that pending Tennessee legislation that would designate The Holy Bible as the official state book violates the federal Establishment Clause as well as Tennessee  Constitution Art. I, Sec. 3 barring preference to any religious establishment or mode of worship. The Opinion says in part:

Irrespective of the legislation’s actual purpose, common sense compels the conclusion that designation of the Bible as the official state book in practice and effect conveys a message of endorsement.

AP reported that following the issuance of the AG's Opinion, Tuesday saw "a sometimes raucous floor debate" on HB615/ SB1108, with the bill's sponsor arguing that it does not violate the Establishment Clause. On Tuesday, the House adopted an amendment (full text) to the bill setting out in a preamble over a dozen secular justifications for naming the Bible as the state book. Here are two of them:

WHEREAS, printing the Bible is a multimillion dollar industry for the state with many top Bible publishers headquartered in Nashville, including Thomas Nelson, Gideons International, and United Methodist Publishing House;...

WHEREAS, the tulip poplar was chosen as the state tree because, according to the Blue Book, “it grows from one end of the state to the other” and was “extensively used by the pioneers of the state” for practical purposes such as the construction of “houses, barns, and other necessary farm buildings”, similar to how the Holy Bible is found in homes across the state and has been “used” for practical purposes such as recording family histories; 

On Wednesday, the Tennessee House of Representatives passed the bill as amended by a vote of 55-38, and sent it to the Senate for its consideration. [Thanks to Tom Rutledge for the lead].

Tennessee Supreme Court Upholds Spiritual Healing Exemption Interpreted Narrowly

In State of Tennessee v. Crank, (TN Sup. Ct.,Feb. 13, 2015), the Tennessee Supreme Court upheld the conviction and sentence to 1-year probation of Jacqueline Crank, a member of the Universal Life Church, who was indicted for child neglect based upon her failure to obtain medical treatment for her daughter.  Her daughter died at age 15 of a rare form of cancer.  Crank argued for acquittal based on Tennessee's "spiritual treatment" statute, TN Code Ann.39-15-402(c), that prevents prosecution of parents who "provide[] treatment by spiritual means through prayer alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner thereof in lieu of medical or surgical treatment." The trial court however held that the Universal Life Church did not qualify as a "recognized church or religious denomination."  Crank appealed arguing that the exemption is unconstitutionally vague, and violates the Establishment and Equal Protection Clauses.  The Tennessee Supreme Court rejected the vagueness argument, holding:

Viewed in context, it is apparent that the legislative intent was for the exemption to apply to members of religious bodies which, like the Church of Christian Science, are established institutions with doctrines or customs that authorize healers within the church to perform spiritual treatment via prayer in lieu of medical care. Because the exemption is effectively limited to members of religious groups that closely resemble the Christian Science Church, the terms at issue are not so vague that the scope of the exemption “cannot be ascertained.”

Then, addressing Crank's argument that the exemption narrowed in this way violates the Establishment Clause and Equal Protection Clause, the Supreme Court said it need not decide that question because, even if Crank is correct, this would lead to elision of the entire spiritual treatment exemption from the child neglect statute. The Court issued a press release and summary of the decision. AP reports on the decision.

Suit Challenges Vote Counting On Tennessee Pro-Life Amendment

Tennessee voters this month voted on a proposed state constitutional amendment providing:

Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.

In preliminary results, state election officials reported that the measure passed 728,751 in favor and 656,427 opposed.  However, the Memphis Flyer reports that in an attempt to prevent the measure from taking effect, a group of pro-choice voters have filed suit in federal district court challenging the state's vote-counting procedure.

Tennessee Constitution, Art. XI, Sec. 3, provides that amendments need to be approved "by a majority of all the citizens of the state voting for governor, voting in their favor."  Plaintiffs claim that this is more than a requirement for a certain number of total votes.  They say election officials must actually match ballots and count only votes from voters who also voted for Governor. Supporters of the ballot measure this year had urged their backers to vote for the Amendment, but not vote for governor, in order to magnify the effect of their vote.  Apparently many did this because some 32,500 more votes in total were cast for or against the amendment that in the governor's race.

Challenge To Tennessee Limittions On LGBT Protections Dismissed On Standing and Mootness Grounds

In Howe v. Haslam, (TN App, Nov. 4, 2014) (Farmer, J opinion for court)  (Stafford, J concurring) (McBrayer, J concurring in part), the Tennessee Court of Appeals dismissed on a combination of mootness and standing grounds a challenge to Tennessee statutes that effectively prevent local governments from enacting civil rights protections to ban discrimination on the basis of sexual orientation or gender identity.  At issue are provisions of state law that amend Tennessee's state anti-discrimination law to define "sex" to mean the designation of male or female on one’s birth certificate, and then generally prohibit local governments from imposing anti-discrimination standards that deviate from those in state law.

6th Circuit Upholds Same-Sex Marriage Bans

In DeBoer v. Snyder, (6th Circuit, Nov. 6, 2014), in a 2-1 decision, the U.S. 6th Circuit Court of Appeals today became the first federal circuit court to uphold state bans on same-sex marriage and on recognition of same sex-marriages performed elsewhere.  Departing from decisions by the Fourth, Seventh, Ninth and Tenth Circuits, the court upheld state statutory and constitutional provisions from Michigan, Ohio, Kentucky and Tennessee. Judge Sutton, writing for the majority, summarized his approach:

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.

Judge Daughtry dissenting said in part:

In the main, the majority treats both the issues and the litigants here as mere abstractions.  Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status....

SCOTUSblog reporting on the 6th Circuit's decision speculated that the split among circuits that it creates is likely to lead to Supreme Court review unless en banc review from the 6th Circuit is sought and granted.

In Tennessee, A Rare Win For Opponents of Same-Sex Marriage

In the face of a long string of federal cases in recent months striking down state laws that bar recognition of same-sex marriage, the opponents of same-sex marriage last week realized a rare victory. In Borman v. Pyles-Borman, (TN Cir. Ct., Aug. 5, 2014), a Tennessee state trial court upheld Tennessee's ban on recognizing same-sex marriages performed in other states. The decision comes in a divorce case involving a same-sex couple legally married in Iowa, but now residing in Tennessee.  A Tennessee court presumably cannot grant a divorce unless the marriage is first recognized in the state.

In upholding Tennessee's anti-recognition law against an equal protection challenge, the court wrote in part:

In the Windsor case the Supreme Court opines that if a state finds same-sex marriage to be valid, the Federal Government cannot trump that State's law. The Supreme Court does not go the fmal step and fmd that a State that defines marriages as a union of one (1) man and one (l) woman is unconstitutional. Further, the Supreme Court does not find that one State's refusal to accept as valid another States valid same-sex marriage to be in violation of the U.S. Constitution.... 

The Court finds that marriage is·a fundamental right. However, neither the Tennessee Supreme Court nor the United States Supreme Court has ever decided that this fundamental right under a state's laws extends beyond the traditional definition of marriage as a union between one (1) man and one (1) woman.... The Legislative Branch of Tennessee and the voters of Tennessee have said that the definition of marriage should be as it always has been.....

The court then adopts language from the state's brief in finding a rational basis for the state's traditional definition.

Moving to the full-faith-and-credit challenge, the court concludes:

The laws of Iowa concerning same sex marriage is so diametrically opposed to Tennessee's laws, and Tennessee's own legitimate public policy concerning same-sex marriage, that Tennessee is not required by the U.S. Constitution to give full faith and credit to a valid marriage of a same-sex couple in Iowa. 

Yesterday Liberty Counsel issued a press release announcing the decision. Earlier this month, the U.S. 6th Circuit Court of Appeals heard oral arguments in a separate challenge to Tennesseee's marriage recognition laws. (See prior posting.)

6th Circuit Stays Tennessee Same-Sex Marriage Ruling

In Tanco v. Haslam, (6th Cir., April 25, 2014), the U.S. 6th Circuit Court of Appeals granted a stay pending appeal of a district court preliminary injunction requiring the state of Tennessee to recognize the same-sex marriages of 3 couples who were legally married in other states. (See prior posting.) The Tennessean reports on the decision. [Thanks to How Appealing for the lead.]

Tennessee Legislature Passes Student Religious Viewpoints Antidiscrimination Act

On March 24, the Tennessee General Assembly gave final passage to HB 1547 as amended, the Religious Viewpoints Antidiscrimination Act. The bill, which now goes to the governor for signature, requires schools to treat student voluntary expression of a religious viewpoint on an otherwise permissible subject the same as secular viewpoints are treated.  Schools must adopt a policy to prevent discrimination against religious viewpoints where students are chosen to speak at a school event. Students must be permitted to express their written beliefs about religion in homework and classwork, and may not be penalized or rewarded because of the religious content. Students must be allowed to sponsor religious student clubs and activities to the same extent as students are allowed to sponsor secular clubs and activities. The bill passed the House by a vote of 90-2, and passed the Senate by a vote of 32-0. The Advocate reports that the ACLU is urging Gov. Haslam to veto the bill.

New Murfreesboro Lawsuit Challenges Muslim Cemetery

In Murfreesboro, Tennessee, where opponents of an Islamic Center engaged in several years of high-profile litigation beginning in 2010 (see prior posting), a new lawsuit has been filed challenging county approval of a Muslim cemetery on a portion of the Islamic Center's property.  By a 3-2 vote, the Rutherford County Board of Zoning Appeals in January approved the cemetery which will not use caskets or burial vaults.  According to the Murfreesboro Daily News-Journal, plaintiffs are attempting to require additional hearings, studies and permits before the cemetery can be approved. The case is being heard next week by the same trial court judge who ruled-- in a decision that was reversed by higher courts-- that inadequate public notice had been given before the mosque construction was approved.

Grand Jury Refuses To Indict Snake Handling Pastor

In Campbell County Tennessee last Wednesday, a grand jury refused to hand down indictments against Rev. Andrew Hamblin who was charged after state wildlife officials raided his Tabernacle Church of God and seized 53 poisonous snakes handled by the congregation during worship services.  Hamblin is the co-star of the National Geographic Chanel's reality series Snake Salvation. (See prior posting.)  According to Religion News Service, Hamblin was allowed to address the grand jury for 30 minutes. He argued that the snakes belong to the church, not to him, and that the state's ban on them violates the congregation's religious liberty.