More Context Needed In Student's Suit Over Right To Wear Shirt With Anti-Gay Bible Verse

In B.A.P. v. Overton County Board of Education, (MD TN, April 27, 2022), a Tennessee federal district court refused to dismiss a suit challenging on free exercise and free speech grounds a school's disciplining of a student who refused to take off a shirt that read: "homosexuality is a sin - 1 Corinthians 6:9-10." The court said in part:

 "[T]o justify prohibition of a particular expression of opinion" under Tinker, a school must show that it acted out of '"more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,' but rather, 'that the school authorities had reason to anticipate that the [student’s expression] would substantially interfere with the work of the school or would impinge upon the rights of other students.'"...

Here, an adequate analysis of B.A.P.’s First Amendment claims ... requires a more developed record than is available on a motion to dismiss. ....

Plaintiffs allege that Henson removed B.A.P. from class due to the message on her shirt, Melton did not allow her to return to class because of this message, and both Melton and Henson told B.A.P. she could not wear the shirt to school going forward. The Amended Complaint does not, however, supply specific facts and context about Livingston Academy and the surrounding community at the time Melton and Henson took these actions. Without this context, the Court cannot determine whether Melton and Henson reasonably forecasted that the message on B.A.P.’s shirt would cause substantial disruption or interference with the rights of other students. Accordingly, B.A.P.’s First Amendment claims against Melton and Henson will not be dismissed for failure to state a claim.

Court Enjoins Autopsy In Suit By Inmate Facing Execution

In Smith v. Li, (MD TN, April 20, 2022), a Tennessee federal district court, in a RLUIPA suit by an inmate about to be executed, enjoined the state's medical examiner from performing an autopsy after the execution, collecting fluids postmortem, or performing any other procedure violating plaintiff's the body's physical integrity after death. The court said in part:

It may be that the medical community does not consider the collection of fluid samples to constitute an “autopsy.” That fact, though, has no bearing on either the sincerity or the content of Smith’s religious beliefs, which do not depend on any such distinction. It is not the place of Dr. Li, the government, or the court to try to convince Smith that he should not consider the postmortem collection of his bodily fluids to be an impermissible intrusion on his religiously mandated bodily integrity. If Smith does sincerely believe that—and the court finds that he does— then Dr. Li’s stated intention to violate his beliefs implicates RLUIPA, whether Dr. Li finds Smith’s theological explanation persuasive or not....

Under these circumstances, where the decision whether to conduct an autopsy is left to the discretion of the county medical examiner and, alternatively, to that of the state chief medical examiner or the district attorney general, it is difficult to see how the government could show that conducting an autopsy is necessary to fulfill a compelling government interest. If the interest were truly compelling, the statute presumably would mandate it.

Deputy Sheriff May Be Liable For Failing To Stop Fellow Officer From Carrying Out Coercive Baptism

In Riley v. Hamilton County Government, (ED TN, April 7, 2022), a Tennessee federal district court refused to dismiss an Establishment Clause, as well as a 4th Amendment, claim against Deputy Sheriff Jacob Goforth for his role in Deputy Sheriff Daniel Wilkey's baptism of Shandle Riley. Wilkey had pulled Riley over for a traffic stop and discovered that she had marijuana in her car. After searching Riley and her car, Wilkey began to talk with Riley about religion, asking her if she had been baptized. According to the court:

Wilkey told her “God [was] talking to him” and assured her that, if she got baptized, he would only write her a citation and she would be free to go about her business.... According to Riley, Wilkey also indicated that he would speak at court on her behalf if she agreed.... Riley decided to go along with this plan because she“[did not] want to go to jail.” ... She also “thought [Wilkey] was a God-fearing, church-like man who saw something . . . in [her], that God talked to him,” and testified that “it felt good to believe that for a minute.”

Wilkey asked another deputy on duty, Jacob Goforth, to witness his baptism of Riley. According to the court: 

any reasonable officer would have recognized that coerced participation in a Christian baptism—an overtly religious act with no secular purpose—was unlawful.... There are genuine disputes of material fact concerning whether Riley was coerced into the baptism, whether she would have faced harsher penalties had she refused to be baptized, and whether Goforth should have known that Riley was being coerced. This is enough to preclude summary judgment on this issue....

Goforth had fair warning that he had a duty to intervene to stop constitutional violations of this nature. And a reasonable jury could conclude that Goforth had both notice of the violation and an opportunity to stop the baptism. Accordingly, Goforth is not entitled to summary judgment on Riley’s First Amendment claim....

The court also held that that Goforth was not entitled to qualified immunity on Riley's claim of an unreasonable seizure.

Sexual Assault Victim Sues Tennessee Catholic Diocese

Suit was filed this week in a Tennessee state trial court against the Catholic Diocese of Knoxville and its bishop. A press release from plaintiff's attorneys summarizes the complaint (full text) in John Doe v. Catholic Diocese of Knoxville, (TN Cir. Ct., filed 2/22/2022):

A lawsuit filed in the Circuit Court for Knox County, Tennessee alleges that the Catholic Diocese of Knoxville and its bishop, Richard Stika, negligently failed to stop a diocesan seminarian from raping and sexual harassing a fellow employee in 2019, then spread false and defamatory rumors about the employee to protect itself and the seminarian, a friend of the bishop.

Sex Offender Registration Law Does Not Violate Free Exercise Rights

 In Doe v. Rausch, (MD TN, Feb. 16, 2022), a Tennessee federal district court dismissed a plaintiff's claim that subjecting him to the Tennessee Sex Offender Registration Act violates his free exercise rights. The Act, among other things, prohibits registered offenders from being on the grounds of a private or parochial school. Plaintiff contended that the Act "has the effect of prohibiting his presence in a building of worship because most Jewish Synagogues and Community Centers in Tennessee have schools on their grounds."  The court rejected this contention, accepting defendant's argument that the free exercise clause does not relieve plaintiff from the obligation to comply with a neutral law of general applicability.

Diocesan Religious Education Director Sentenced To 20 Years For Sex Abuse of Minor Girl

The Tennessean reports that under a plea deal, the former director of religious education at a Murfreesboro (TN) Catholic parish was sentenced to twenty years in prison for sexual abuse of a girl, beginning when she was 13 years old.  Defendant, Michael D. Lewis, pleaded guilty to four counts of statutory rape for abuse that took place between 2014 and 2016.

Trial Set On Why Street Preachers Were Removed From Gay Pride Event

In Waldrop v. City of Johnson City, Tennessee,(ED TN, Jan. 26, 2022), a Tennessee federal district court, in a case on remand from the 6th Circuit, set for trial a suit by two street preachers who were removed from a Pride event. The court said in part:

A genuine issue of material fact exists as to whether the officers removed Plaintiffs from Founders Park, and if so, whether they did so for a content-neutral or content-based reason.

Jewish Couple Challenge Denial Of Services By Christian Foster Care Placement Agency

Suit was filed yesterday in a Tennessee state trial court challenging the state's contracting with a Christian child placement agency that refuses to provide foster parent training to those who do not share its Christian beliefs.  A Jewish couple who were denied services sued, along with several other plaintiffs.  A Tennessee statute enacted in 2020 specifically allows faith-based adoption and foster care agencies to refuse to provide services that violate their religious convictions. The complaint (full text) in Rutan-Ram v. Tennessee Department of Children's Services, (TN Chanc. Ct., filed 1/19/2022), alleges that this religious discrimination violates several provisions of the Tennessee state constitution.  Americans United issued a press release announcing the filing of the lawsuit.

6th Circuit Hears Arguments In Challenge To Ban On Marriage Ceremonies By Clergy Ordained Online

The U.S. 6th Circuit Court of Appeals heard oral arguments on Thursday in Universal Life Church Monastery v. Nabors. (Audio of full oral arguments). In the case, a Tennessee federal district court held that the Universal Life Church and two of its ministers have standing to challenge Tennessee's ban on solemnization of marriages by clergy who received online ordination. It also held that the state Attorney General, District Attorney Generals and County Clerks cannot claim sovereign immunity and are proper defendants. (See prior posting.)  Courthouse News Service reports on the arguments. [Thanks to Scott Mange for the lead.]

Younger Abstention Applied While Santeria Priestess Is Tried Criminally

In Santeria Sanctuary v. Madison County, Tennessee, (WD TN, Dec. 2, 2021), a Tennessee federal district court applied the Younger abstention doctrine and stayed a federal civil suit while state criminal court proceedings are under way against a Santeria priestess who is under indictment on 676 counts of cruelty to animals. According to the court, plaintiffs claims under RLUIPA and the Tennessee Religious Freedom Restoration Act:

center on Defendants destruction of the Sanctuary and their forced entry into the house of worship during a religious ceremony, along with their seizure of tithes and offerings in violation of the Plaintiffs’ First Amendment right to free exercise of religion.... In addition, Plaintiffs contend the County officers raid on the property, as well as an unlawful search and seizure of money and animals, violates Plaintiffs’ Fourth Amendment rights.... Plaintiffs further maintain that such actions by Defendants imposed substantial burdens on the Plaintiffs by forcing them and the adherents of the Sanctuary to forego the practice of their religious precepts—namely, the sacrifice of live animals....

Religious Child Placement Agency Challenges HHS Non-Discrimination Regulations

Suit was filed yesterday against the U.S. Department of Health and Human Services in a Tennessee federal district court by a religious child welfare agency that offers residential and foster care services for abused and neglected children. The suit challenges an HHS regulation that prohibits foster care and adoption programs receiving federal funds from discriminating on the basis of religion, sex, sexual orientation, gender identity or same-sex marriage status. The regulation expands upon the statutory prohibition on discrimination in such programs on the basis of race, color or national origin. The complaint (full text) in Holston United Methodist Home for Children v. Becerra,(ED TN. filed 12/2/2021), alleges that the regulation exceeds the federal agency's authority and that it violates RFRA and various 1st Amendment rights. The complaint alleges in part:

28. It would substantially burden Holston Home’s exercise of its religious beliefs to knowingly engage in child placing activities in connection with persons that do not agree with its Christian statement of faith and beliefs....

30. It would substantially burden Holston Home’s exercise of its religious beliefs to knowingly engage in child placing activities in connection with couples who may be romantically cohabitating but not married, or who are couples of the same biological sex.

The Trump Administration had issued waivers of the rule for faith-based agencies, but those waivers were rescinded by the Biden Administration last month. (See prior posting). ADF issued a press release announcing the filing of the lawsuit.

Before-School Religious Club Requirement To Play Basketball OK'd

In K.K. & K.K. v. Comer, (ED TN, Nov. 5, 2021), a Tennessee federal district court dismissed a suit brought by the married lesbian mothers of a middle school student challenging a before-school basketball program which allowed students to participate only if they also participated in the Teens For Christ Club. The court dismissed the claim against the Knox County Board of Education, saying in part:

Plaintiff’s allegations only suggest that a policymaker was aware of the existence of the Teens for Christ Club, but Plaintiff’s allegations do not go so far as to make it plausible that a final policymaker was put on notice of ongoing unconstitutional conduct like the alleged condition precedent.

The court also found that plaintiffs had failed to allege sufficient facts to support their claim that the school board failed to adequately train employees.

In addition, the court went on to dismiss the Establishment Clause claim brought against the physical education teacher involved on qualified immunity grounds, saying in part: 

Defendant Comer argues that the Court must assume that he was reading from the Bible and proselytizing to voluntary participants of the Teens for Christ Club and simply allowed those participants to shoot basketballs in the gymnasium before school. Lastly, Defendant Comer asserts that while he was allegedly reading from the Bible to the voluntary participants, he was lawfully exercising his own First Amendment rights....

Plaintiff cites to no caselaw clearly establishing that it is patently unconstitutional for a teacher like Defendant Comer to allow a religious school club to use the school gymnasium to shoot basketballs outside of regular school hours.

Suit Seeking Permission For Sidewalk Proselytizing Moves Ahead

In Peters v. Metropolitan Government of Nashville & Davidson County, Tennessee, (MD TN, Nov. 1, 2021), a Tennessee federal district court allowed plaintiffs who were prevented from religious proselytizing in areas, including the plaza and sidewalks, outside Nashville's Bridgestone Arena to move ahead with most their 1st and 14th Amendment, and failure-to-train, claims. The court said in part:

Drawing all reasonable inferences in favor of the Plaintiffs, it is reasonable to infer that Metro police officers were enforcing the Arena Policies with the approval or direction of the Metro legal department. At the motion to dismiss stage, this is sufficient to allege plausibly the existence of a municipal policy or custom.

6th Circuit En Banc Upholds Tennessee Abortion Waiting Period

In a 9-7 en banc decision in Bristol Regional Women's Center, P.C. v. Slatery, (6th Cir., Aug. 5, 2021), the U.S. 6th Circuit Court of Appeals upheld Tennessee's 48-hour waiting period for abortions. Judge Thapar's majority opinion concluded:

Tennessee’s 48-hour abortion waiting period is facially constitutional. The law is supported by a rational basis, and it is not a substantial obstacle to abortion for a large fraction of women seeking previability abortions in Tennessee. And the plaintiffs failed to present any specific evidence to sustain their as-applied challenge. We thus reverse the district court’s decision and remand for entry of judgment in Tennessee’s favor on these claims.

Two judges joined in a concurring opinion.  The primary dissenting opinion was written by Judge Moore, who said in part:

Rather than plunge into the vast pool of evidence compiled in the district court ... the majority dips a toe and recoils. Speaking vaguely of “inconveniences,”... “logistical challenges,” ... and “increased costs,”... but shirking the specifics that the district court explored in exhaustive depth, the majority improvises a sanitized account of the record free of uncomfortable realities. In whitewashing the record, the majority has crystalized what has been clear at least since it agreed to hear this case initially en banc without a principled basis: this case was dead on arrival.... An honest look at the record compels but one conclusion: a law that peddles in stigma, forces women into unnecessary and invasive surgical procedures, and forces low-income women to sacrifice basic necessities for themselves and their families in order to obtain an abortion is nothing if not an undue burden.

Judge Gibbons also filed a dissenting opinion. The Hill reports on the decision. 

Transgender Students Sue Over Tennessee Public School Bathroom Law

Suit was filed this week in a Tennessee federal district court challenging the Tennessee Accommodations for All Children Act. The suit was brought on behalf of two transgender students. The complaint (full text) in A.S. v. Lee, (MD TN, filed 8/3/2021) alleges that the effect of the law is to force transgender students in public schools to either use a multi-occupancy bathroom inconsistent with their gender identity or ask for a "reasonable accommodation" such as use of a single-occupancy or a teacher's restroom or changing room. Use of a multi-occupancy restroom or changing room consistent with their gender identity is not an option. The complaint charges that the law violates the equal protection clause and Title IX. CNN reports on the lawsuit.

Court Enjoins Statute Requiring Warning About Restroom Access

In Bongo Productions, LLC v. Lawrence, (MD TN, July 9, 2021), a Tennessee federal district court issued a preliminary injunction against enforcement of a recent Tennessee statute that requires businesses which allow individuals to use rest rooms consistent with their gender identity to post a sign by each rest room stating: "This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation of the restroom." The court concluded that the statute violates plaintiffs' First Amendment free speech rights by compelling speech. The court said in part:

[T]here is simply no basis whatsoever for concluding that the Act is narrowly tailored to serve any compelling governmental purpose....

The defendants are right that, as the Supreme Court has held, strict scrutiny typically does not apply to laws compelling commercial actors to disclose “purely factual and uncontroversial information about the terms under which [their] services will be available.”...

The Supreme Court has expressly recognized that “sexual orientation and gender identity” are, generally speaking, “controversial subjects.”...

[P]eople on one side of a disagreement do not get to unilaterally declare their position to be uncontroversial, because that is not how the concept of “controversy” works. Put another way, the defendants might be wise to accept that, once you are in a heated argument with multiple folks about whether your position is uncontroversial, there is a good chance that you may have already lost.

Gay City News reports on the decision.

State Moves To Restrict Abortions Continue

A number of states continue attempts to restrict abortion rights.

In Montana, Governor Greg Gianforte last Monday signed three bills: HB 136 (full text) barring "perform[ing] an abortion of an unborn child capable of feeling pain unless it is necessary to prevent a serious health risk to the unborn child's mother; HB 140 (full text) requiring that before an abortion a pregnant woman must be given the opportunity to view an active ultrasound and hear a fetal heart tone; and HB 171 (full text) setting out procedures for prescribing abortion-inducing drugs, barring delivery of such drugs by mail and prohibiting providing such drugs in schools or on school grounds. Also yesterday the Montana legislature approved HB 167 (full text) calling for a referendum on the adoption of the Born Alive Infant Protection Act. Law & Crime reports on these developments.

In Oklahoma in recent days Governor Kevin Stitt has signed five bills on abortion: HB 1102 (full text) which defines “unprofessional conduct” to include the performance of an abortion unless performed to prevent the death or significant physical impairment of the mother; HB 1904 (full text) requiring doctors performing abortions to be board certified in obstetrics and gynecology; HB 2441 (full text) barring abortions if a fetal heartbeat can be detected, except to prevent death or serious risk of significant physical impairment of the mother; SB 584 (full text) extending ban on funding of provider who has been found by a court to have trafficked in fetal body parts to funding by cities or counties, as well as the state; SB 918 (full text) making abortion illegal if the U.S. Supreme Court overrules Roe v. Wade or a federal constitutional amendment restores state authority to outlaw abortions. AP reports on some of these developments.

Yesterday the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Memphis Center for Reproductive Health v. Slatery. In the case, a Tennessee federal district court issued a temporary restraining order barring enforcement of two bans on pre-viability abortions. One bans abortions when a fetal heartbeat is detectable. The other bans pre-viability abortions sought because of the race or sex of the fetus or a Down syndrome diagnosis. (See prior posting.) Courthouse News Service reports on the oral arguments. [Thanks to Scott Mange for the lead.]

Restrictions On Sex Offenders Survives Free Exercise Challenge

Tennessee Code §40-39-211(d)(1)(B) prohibits violent sexual offenders from remaining within 1000 feet of any playground. In State of Tennessee v. Colllier, (TN Ct. Crim. App., Jan. 14, 2021), Tennessee state appellate court rejected a free exercise challenge to this provision:

Defendant argues that the statute is overbroad because if “playground” includes both public and private playgrounds, the statute would prevent the Defendant from attending church services, as most churches have a playground.... The Free Exercise Clause does not protect all conduct associated with religious practice.... Conduct remains subject to regulation for the protection of society.”...  The Defendant remains free to hold whatever beliefs he may choose and privately practice religion as he wishes. However,... [t]he State’s “paramount” interest in “protect[ing] the public from [sexual] offenders” allows it to “define” and limit the extent of the Defendant’s “freedom to act.”

Anti-Gay Proselytizers Lose Suit Against City

In Waldrop v. City of Johnson City,Tennessee, (ED TN, Nov. 30, 2020), a Tennessee federal district court dismissed a suit by several individuals who were distributing religious literature at a gay pride event. Plaintiffs claimed that their free speech and free exercise rights were infringed when they were required by police to move from the entrance to the park where the event was being held to a nearby sidewalk. The court said in part:

The evidence supports only the conclusion that the officers escorted Plaintiffs from Founders Park, and voiced any attendant warnings to them about their return there, in response to their obstruction of the entrance—a content-neutral reason for their removal. The record is simply without evidence showing that Lieutenant Peters or any other officer moved Plaintiffs away from Founders Park for any other reason, much less for the reason that the content of Plaintiffs’ message was offensive or disagreeable. To the contrary, the evidence establishes— beyond any genuine issue of material fact—that the officers allowed Plaintiffs’ message to endure within the festival’s event area for hours into the day, despite TriPride’s organizers’ clamors for the officers to extinguish it.

6th Circuit Allows Tennessee "Reason" Abortion Ban

In Memphis Center for Reproductive Health v. Slatery, (6th Cir., Nov. 20, 2020), the U.S. 6th Circuit Court of Appeals in a 2-1 decision reversed a district court and allowed the state of Tennessee to continue to enforce its "reason" abortion ban while the constitutionality of the provision is being litigated. At issue is a ban on physicians performing abortions where the physician knows that the abortion is sought because of the sex, race, or Down syndrome diagnosis of the fetus. Challengers contend in part that the ban is unconstitutionally vague.  ACLU issued a press release discussing the decision.