Religion Clause

Tuesday, April 12, 2022

Plaintiff's Ban From Space Center Upheld

In Duvall v. United States Space and Rocket Center, (ND AL, April 11, 2022) an Alabama federal district court dismissed claims that plaintiff's free exercise, free speech and freedom of assembly rights were violated when he was banned from the Space Center's property. The ban was imposed after plaintiff was trying at the Center "to bust open Seal No. 7 of the Holy Bible.”

New Alabama Ban On Gender Transition Procedures For Minors Is Challenged

Suit was filed last week in an Alabama federal district court challenging SB 184, the Alabama Vulnerable Child Compassion and Protection Act (full text), which prohibits medical procedures or the prescription of drugs for a minor child to alter the child's gender or delay puberty. The law was given final passage by the legislature on April 7 and signed by the governor on the next day. Parents of two transgender teenagers and two physicians filed suit 3 days later. The complaint (full text) in Ladinsky v. Ivey, (ND AL, filed 4/11/2022), contends that the law is pre-empted by a provision in the Affordable Care Act, that the law violates equal protection, parents rights to direct medical care of their children, and is void for vagueness. Courthouse News Service reports on the lawsuit.

Monday, April 11, 2022

Sunday, April 10, 2022

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.

Friday, April 08, 2022

5th Circuit Hears Oral Arguments In Texas Courtroom Prayer Case

On Tuesday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Freedom From Religion Foundation v. Mack. (Audio of full oral arguments). In the case, a Texas federal district court held that a program devised by a Justice of the Peace under which his court sessions are opened with a prayer from a volunteer chaplain violates the Establishment Clause. (See prior posting.) Last July, the 5th Circuit granted a stay pending appeal of the Texas district court's declaratory judgment order. (See prior posting.)

Oklahoma Passes Bill Outlawing Almost All Abortions

On Wednesday, the Oklahoma legislature sent to the governor for his signature, SB612 (full text). The bill provides in part:

1. Notwithstanding any other provision of law, a person shall not purposely perform or attempt to perform an abortion except to save the life of a pregnant woman in a medical emergency.

2. A person convicted of performing or attempting to perform an abortion shall be guilty of a felony punishable by a fine not to exceed... $100,000.00 ... or by confinement ... for a term not to exceed ten ... years, or by such fine and imprisonment.

3. This section does not: a. authorize the charging or conviction of a woman with any criminal offense in the death of her own unborn child....

NPR reports on the legislation.

Alabama Legislature Passes Bill On Bathrooms and LGBT Instruction In Public Schools

Yesterday the Alabama legislature gave final passage to, and sent to the governor for her signature, HB322 (full text). The bill, with certain exceptions, requires:

A public K-12 school shall require every multiple occupancy restroom or changing area designated for student use to be used by individuals based on their biological sex.

The bill also provides:

... [I]ndividuals providing classroom instruction to students in kindergarten through the fifth grade at a public K-12 school shall not engage in classroom discussion or provide classroom instruction regarding sexual orientation or gender identity in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.

Two Suits Challenge Michigan's 1931 Abortion Ban

Planned Parenthood and a Michigan abortion provider filed suit yesterday in the Michigan Court of Claims seeking to invalidate Michigan's 1931 statute that outlaws all abortions, except those necessary to save the life of the pregnant woman. The complaint (full text) in Planned Parenthood of Michigan v. Attorney General of the State of Michigan, (Ct.Cl., filed April 7, 2022), contends that the statute violates various provisions of the Michigan Constitution. ACLU issued a press release announcing the lawsuit. Even though Attorney General Dana Nessel is named as defendant in the lawsuit, she issued a statement saying in part:

I will not use the resources of my office to defend Michigan's 1931 statute criminalizing abortion.

WMUK expands on Nessel's position:

She says her office would not defend the abortion ban using a process that assigns teams of attorneys to argue both sides of a legal controversy. Nessel says she would only do that if ordered to by a court. “I will not enforce it and neither will I defend it,” she said. “I will take no part in driving women back into the dark ages and into the back alleys.”

Nessel says she will leave it up local prosecutors to defend their ability to enforce an abortion ban in their counties if they want to do that. And the Democratic attorney general says she would not object if Republicans in the Legislature want to join the case and take on the role of defending the state’s abortion ban.

Meanwhile, yesterday Michigan Governor Gretchen Whitmer filed another lawsuit challenging the 1931 abortion ban. A press release from her office, describing the lawsuit, says in part:

Today, Governor Gretchen Whitmer filed a lawsuit and used her executive authority to ask the Michigan Supreme Court to immediately resolve whether Michigan’s Constitution protects the right to abortion....

The lawsuit asks the court to recognize a constitutional right to an abortion under the Due Process Clause of the Michigan Constitution. It also asks the court to stop enforcement of the 1931 Michigan abortion ban. The abortion ban violates Michigan’s due process clause, which provides a right to privacy and bodily autonomy that is violated by the state’s near-total criminal ban of abortion. It also violates Michigan’s Equal Protection Clause due to the way the ban denies women equal rights because the law was adopted to reinforce antiquated notions of the proper role for women in society.

Seventh Day Adventist Can Proceed With Title VII Suit

In Weston v. Sears, (SD OH, April 5, 2022), an Ohio federal magistrate judge recommended that plaintiff, a Seventh Day Adventist, be permitted to proceed in forma pauperis with her Title VII claim for religious discrimination. She was fired for failing, until after the end of her Sabbath, to return multiple phone calls from her manager. However plaintiff is required to exhaust her administrative remedies by filing charges with the EEOC or her state agency.

Thursday, April 07, 2022

European Court Says Jehovah's Witnesses Were Wrongly Denied Tax Exemption

In Affaire Assemblée chrétienne des Témoins de Jéhovah d’Anderlecht et autres c. Belgique, (ECHR, April 5, 2022), the European Court of Human Rights ruled in favor of a Jehovah's Witnesses congregation in Belgium that was denied a property tax exemption for property they used for religious worship. The regional tax law gave exemptions only to "recognized religions". Jehovah's Witnesses were not recognized. According to the Court's press release:

The Court held that since the tax exemption in question was contingent on prior recognition, governed by rules that did not afford sufficient safeguards against discrimination, the difference in treatment to which the applicant congregations had been subjected had no reasonable and objective justification. It noted, among other points, that recognition was only possible on the initiative of the Minister of Justice and depended thereafter on the purely discretionary decision of the legislature. A system of this kind entailed an inherent risk of arbitrariness, and religious communities could not reasonably be expected, in order to claim entitlement to the tax exemption in issue, to submit to a process that was not based on minimum guarantees of fairness and did not guarantee an objective assessment of their claims.

Preacher's Challenge To Large Group Vigils On Capitol Grounds Fails

In Mahoney v. United States Capitol Police Board, (D DC, April 5, 2022), a D.C. federal district court refused to grant a preliminary injunction to a clergyman who was denied a permit to hold a large prayer vigil on part of the Capitol grounds. Groups of 20 or more were permitted at that location only if sponsored by a member of Congress. The court rejected plaintiff's selective enforcement claim, saying in part:

Members of Congress sponsoring or organizing demonstrations on the Capitol Grounds present “distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.”... Consider the numerous ways in which Members are different from non-Members while on the Capitol Grounds. In such a setting, for instance, the Member is at her workplace, she enjoys private access to many areas that are otherwise restricted, and she is carrying out her unique constitutional duties as a legislator and representative of her constituents. Numerous legal principles recognize this reality and accord Members unique status while on the Capitol Grounds.

The court also found that plaintiff was unlikely to succeed on his freedom of assembly claim.

Wednesday, April 06, 2022

Biden Nominates Kalpana Kotagal For EEOC Commissioner

President Biden yesterday sent to the Senate the nomination of Kalpana Kotagal to be a Member of the 5-member Equal Employment Opportunity, replacing Janet Dhillon whose term is expiring July 1. Kotagal is a partner at Washington, D.C. law firm of Cohen Milstein and is a member of the firm’s Civil Rights & Employment practice group. The EEOC enforces employment discrimination laws, including laws barring religious discrimination in employment.

Kentucky Governor Signs Bill Protecting Houses Of Worship During Emergencies

Yesterday, Kentucky Governor Andy Beshear signed into law House Bill 43 (full text) that prohibits the governor, during a state of emergency, from seizing or condemning "houses of worship, except to the extent that such houses have become unsafe to a degree that would justify condemnation in the absence of a state of emergency." ADF issued a press release announcing the governor's action.

Arizona Legislature Passes Bill To Protect Practices Of Faith-Based Adoption Agencies

On Monday, the Arizona legislature sent to the governor for his signature Senate Bill 1399 (full text) which protects adoption and foster care agencies from adverse action when they provide or decline services on the basis of their religious beliefs. It also provides that the state may consider whether a potential foster or adoptive family shares the same religious beliefs or practices as the child being placed. AZ Mirror has extensive reporting on the views of proponents and opponents of the legislation.

Colorado Governor Signs Reproductive Health Equity Act

On Monday, Colorado Governor Jared Polis signed into law (signing statement) HB 22-1279 (full text), the Reproductive Health Equity Act which provides in part:

(1) Every individual has a fundamental right to make decisions about the individual's reproductive health care, including the fundamental right to use or refuse contraception.

(2) A pregnant individual has a fundamental right to continue pregnancy and give birth or to have an abortion and make decisions how to exercise that right.

(3) A fertilized egg, embryo, or fetus does not have independent or derivative rights under the laws of this state.

CNN reports on developments.

Tuesday, April 05, 2022

Massachusetts Supreme Court Hears Oral Arguments In Clergy Sexual Abuse Case

Yesterday, the Massachusetts Supreme Judicial Court heard oral arguments (webcast of arguments) in Doe v. Roman Catholic Bishop of Springfield. (Docket entries and documents.) The court's summary of the issues involved reads:

Where the trial court denied the defendant's motion to dismiss an action alleging sexual abuse by clergy, whether the defendant may pursue an interlocutory appeal of a ruling that neither charitable immunity nor the First Amendment provides a basis to dismiss the plaintiff's claims.

Courthouse News Service has a lengthy summary of the oral arguments.

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.

Trial Court's Resolution Of Church Factional Dispute Is Upheld

In Chung v. Kim, (CA App., April 1, 2022), a California state appellate court held that a trial court did not abuse its discretion in dealing with a dispute between two factions in a Korean American church. The court expalined:

Appellant Jang Geun Chung is an “Active Elder” at OMC and the leader of one faction, and OMC’s Senior Pastor, respondent Chi Hoon Kim, is the leader of the other faction. Prior to the initiation of the trial court proceedings, these individuals were the only two members of OMC’s “Session,” or board of directors. Chung and the Senior Pastor do not agree on whom to nominate as another Active Elder on the Session. Had Chung and the Senior Pastor concurred on the selection of one or more nominees, then any candidate receiving a vote of two-thirds or more of OMC’s congregation would have been elected to the Active Elder position and ultimately would have joined the Session.

Chung and the other members of his faction ... filed suit against the Senior Pastor and the two other members of his faction.... The trial court granted appellants’ motion, reasoning that the Senior Pastor had acted improperly in unilaterally selecting the candidates and scheduling the election. The court then ... ordered that a new election be held.... Appellants contest the trial court’s order adopting respondents’ proposed procedures for the new election....

The court rejected the argument that the trial court's order violated the Establishment Clause, saying in part:

Even assuming the eligibility determination for the Active Elder position calls for the resolution of an ecclesiastical matter, the trial court could not defer to a decision from the relevant authoritative ecclesiastical body—i.e., the Session. Specifically, the parties concede that because the Senior Pastor and Chung were unable to agree on nominees for this position (i.e., no candidate could “receive[ ] a vote of 2/3 or more” of the Session, as required by Art. 51(3)), the Session is “deadlocked” on this issue.... Appellants do not cite authority for the proposition that the Establishment Clause barred the trial court from resolving this impasse by allowing each member of the deadlocked authoritative ecclesiastical body to select his own candidate for the election.

Monday, April 04, 2022

Ban On Prayer Over PA System At High School Playoffs Did Not Violate 1st Amendment

In Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., (MD FL, March 31, 2022), in a case on remand from the 11th Circuit, a Florida federal district court held that the Florida High School Athletic Association did not violate the 1st Amendment rights of a Christian school when it refused to allow it to broadcast a pre-game prayer over the PA system at a state championship playoff against another Christian school. The court said in part:

This case is not about whether two Christian schools may pray together at a football game.... [P]layers and coaches from both teams, along with some officials, met at the 50-yard line of the Citrus Bowl to pray together before the game and again on the sidelines after the game.... But they were not permitted to deliver their prayer over the PA system during the pregame....

Addressing plaintiff's free speech claims, the court said in part:

[P]regame speech over the PA system at the championship finals football game hosted by the FHSAA at a state-owned venue is government speech....

Even if some of the speech conducted over the PA system at the 2015 2A State Championship Final football game could be classified as private speech, the FHSAA’s viewpoint neutral regulation of the speech in the nonpublic forum was not unconstitutional....

Here, no one else was permitted to speak over the PA system during the pregame except the announcer, and pursuant to a predetermined script, which did not include speech and viewpoints of other groups, organizations, or religions....

Also, rejecting free exercise claims, the court said in part:

On the facts of this case, the Court concludes that communal pregame prayer over the PA system is a preference of CCS’s, not a deeply rooted tradition that rises to the level of a sincerely held belief.