Religion Clause

Monday, June 07, 2021

FFRF Wins Right To Display "Bill of Rights Nativity Scene"

In Freedom from Religion Foundation v. Abbott, 2021 U.S. Dist. LEXIS 104950 (WD TX, May 5, 2021), on remand from the 5th Circuit, a Texas federal district court issued a declaratory judgment and an injunction barring state officials from excluding FFRF's "Bill of Rights Nativity Exhibit" from display space in the state capitol building under now-revised rules. The court said in part:

Defendants violate the Foundation's First Amendment rights and engage in viewpoint discrimination as a matter of law when they exclude the Foundation's Exhibit based on the perceived offensiveness of its message.

The court however rejected plaintiff's claim that the state has unconstitutional unbridled discretion under the current rules.

Sunday, June 06, 2021

Church's Suit On COVID Limits Dismissed As Moot

In Calvary Chapel of Bangor v. Mills, (D ME, June 4, 2021), a Maine federal district court dismissed on mootness grounds a church's challenge to Maine Governor Janet Mills now-superseded COVID-19 limits on the number of people permitted to attend worship services. The court said in part:

Governor Mills has not employed a strategy of “moving the goalposts.” The fact that she retains some authority to reimpose restrictions does not mean that she is likely to do so, particularly given her counsel’s statements and her actions thus far. I conclude that the Defendant has demonstrated that it is absolutely clear that Governor Mills cannot reasonably be expected to reinstate the GATHERING ORDERS that are identified in the Complaint.

Previously the court had denied a temporary restraining order, and an appeal of that decision is currently pending in the U.S. Supreme court. Nevertheless, last week's decision was immediately appealed to the U.S. 1st Circuit Court of Appeals. Liberty Counsel issued a press release on the case.

Court Refuses To Allow Chabad To File Amended RLUIPA Complaint

In Friends of Lubavitch v. Baltimore County, Maryland,(D MD, June 3, 2021), a Maryland federal district court found no RLUIPA or other violations in denying a motion to file an amended complaint and a motion for reconsideration. At issue was an earlier decision that dismissed a suit in which a Chabad House serving students at Towson University and Goucher College challenged a state court order requiring it to raze the expansion of its building which was constructed in violation of zoning rules and a deed restriction.

Friday, June 04, 2021

Justice Gorsuch Denies "Shadow Docket" Injunction Pending Appeal Sought By Two Churches

In a little-noticed order on the Supreme Court's "shadow docket", earlier this week Justice Gorsuch, without referring the petition to the entire Court, denied an emergency application for an injunction pending appeal filed by two churches who oppose Colorado's COVID-19 executive orders and public health orders. In Denver Bible Church v. Polis, (US Sup. Ct., application denied 6/1/2021), the churches sought an injunction while appeals are pending to prohibit the state from issuing future disaster emergency or public health orders against houses of worship and from enforcing against them any current orders issued since the beginning of the COVID pandemic. (Full text of application and brief in support). SCOTUSblog has more on the action. Here are links to other filings in the case.

Catholic Group Challenges Zoning Refusal To Allow Building Of Chapel

Suit was filed this week in a Michigan federal district court challenging Genoa Township's refusal to allow a Catholic religious organization to develop and construct a 95-seat Chapel and prayer campus on land it acquired from the Diocese of Lansing in 2020. The Township has also demanded that all religious signage already on the property be removed. The complaint (full text) in Catholic Healthcare International, Inc. v. Genoa Charter Township, (ED MI, filed 6/2/2021), alleges that the Township's actions violate plaintiff's rights under RLUIPA, the Michigan Constitution and the First and 14th Amendments of the U.S. Constitution. American Freedom Law Center issued a press release announcing the filing of the lawsuit.

Thursday, June 03, 2021

Suspended Teacher Who Opposed Policy On Transgender Students Sues

Suit was filed this week in a Virginia state trial court seeking a temporary restraining order and preliminary injunction to require the Loudon County School Board to reinstate Bryon Cross, a teacher who was suspended for comments he made at a public school board meeting. The Motion and Memorandum in Support (full text) in Cross v. Loudon County School Board, (VA Cir. Ct., filed 6/1/2021) contend that Cross' free speech and free exercise rights were violated when he was placed on administrative leave for opposing a proposed policy that would require teachers to address students using the student's preferred pronoun. At the school board meeting, Cross said in part:

I'm a teacher but I serve God first. And I will not affirm that a biological boy can be a girl and vice versa because it is against my religion. It's lying to a child. It's abuse to a child. And it's sinning against our God.

ADF issued a press release announcing the filing of the law suit.

Ministerial Exception Leads To Dismissal Of Part of Nuns' Sexual Harassment Claims

In Brandenburg v. Greek Orthodox Archdiocese of North America, (SD NY, June 1, 2021), two nuns who formerly worked at a Greek Orthodox monastery sued the Archdiocese and several clergy members for sexual harassment by Father Makris at the monastery. One of the plaintiffs also sued over the conduct of Father Makris when he was Dean of Students at the religious college she attended in Massachusetts. When the student reported a sexual assault by a male student, Makris made her marry her attacker to cure the assault.

Invoking the ministerial exception doctrine, the court dismissed plaintiffs' sex discrimination claims and their retaliation claims to the extent they are based on tangible employment action (hiring, firing, job assignments, promotion, compensation). However the court held that the claims for constructive discharge survive, as do the claims for retaliation to the extent they are based on harassment and not a tangible employment action. Some of plaintiffs' defamation claims also survived the motion to dismiss.

Challenges To Alabama COVID-19 Orders Are Unsuccessful

In Case v. Ivey, MD AL, June 1, 2021), six plaintiffs brought a range of constitutional challenges to Alabama Governor Kay Ivey's COVID-19 Orders. In a 68-page opinion, the court dismissed all of them-- some on standing or mootness grounds, others on substantive or qualified immunity grounds. Among the claims, one plaintiff contended that the Orders denied her the right to attend the church of her choice. Two pastors claimed that the Orders resulted in the denial of their right to preach and conduct in-person services. The court concluded that defendants had qualified immunity as to the damage claims against them for violating the First Amendment's Free Exercise, Freedom of Assembly and Establishment Clauses because plaintiffs did not plausibly allege that defendants’ conduct violated law that was clearly established at the time of their actions.

Court Says Wayne State Also Violated State Constitution and 14th Amendment In Denying Recognition To Christian Group

In Intervarsity Christian Fellowship/USA v. Board of Governors of Wayne State University, (ED MI, June 1, 2021), a Michigan federal district court denied defendants' motion for reconsideration of the breadth of an injunction the court issued in April which prohibits Defendants from revoking the recognized student organization status of IVCF. (See prior posting.) Wayne State had claimed that IVCF violated the school's non-discrimination policy by insisting that its leaders agree with IVCF's “Doctrine and Purpose Statements,” “exemplify Christ-like character, conduct and leadership,” and describe their Christian beliefs. The court's April decision found violations of the 1st Amendment. The current decision concludes that the school also violated the free speech provision of the Michigan Constitution and the equal protection clause of the 14th Amendment.

Wednesday, June 02, 2021

2nd Circuit: Vermont Town Tuition Program Cannot Exclude Parochial Schools

In A.H. v. French, (2d Cir., June 2, 2021), the U.S. 2nd Circuit Court of Appeals filed its opinion explaining its Feb. 3, 2021 Order granting a petition for a writ of mandamus. At issue was Vermont's refusal to allow students attending religious schools to participate in the state's Town Tuition Program. School districts that do not operate their own high schools must pay tuition costs for students in their district to attend another public high school or an approved non-religious private high school. The Second Circuit held that the exclusion of religious high schools from the program violates the First Amendment, saying in part:

Four years ago, the Supreme Court reminded states that it “has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order.” Trinity Lutheran Church of Columbia, Inc. v. Comer.... Last June, the Court clarified that this rule does not allow a state to apply a state constitutional prohibition on aid to religion that would “bar[] religious schools from public benefits solely because of the religious character of the schools.” Espinoza v. Mont. Dep't of Revenue.... The Court emphasized that “[s]tatus-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses”....

Judge Menashi filed a concurring opinion.

NOTE TO READERS USING FEEDBURNER E-MAIL SERVICE

Google, the sponsor of Feedburner, has announced that the Feedburner e-mail service will no longer be available after July 2021. If you are currently following Religion Clause through a daily e-mail from Feedburner-- the address you receive it from is feedproxy@google.com-- you may wish to select an alternative platform for following this blog. You can subscribe to alternative e-mail feeds through "Follow.it" or "FeedBlitz". Just scroll down near the bottom of the Sidebar of the blog to subscribe to one of these.

Florida Governor Signs Law Barring Transgender Women From Women's High School and College Teams

Yesterday Florida Gov. Ron DeSantis signed SB 1028 (full text) into law. (Press release from Governor.) Section 12 of the law enacts the "Fairness in Women's Sports Act" which bans transgender women from competing on women's sports teams sponsored by public high schools or colleges. The Act provides in part:

(b) Athletic teams or sports designated for males, men, or boys may be open to students of the female sex.

(c) Athletic teams or sports designated for females, women, or girls may not be open to students of the male sex.

(d) For purposes of this section, a statement of a student’s biological sex on the student’s official birth certificate is considered to have correctly stated the student’s biological sex at birth if the statement was filed at or near the time of the student’s birth.

The Act gives a civil cause of action to students or schools injured by a violation of the Act.

Tuesday, June 01, 2021

Pope Francis Promulgates Revised Canon Law Criminal Code

Pope Francis today announced the promulgation of a revised version of Book 6 of the Code of Canon Law-- Penal Sanctions in the Church (full text in English). AP reports on significant changes brought about by the revised Code:

The most significant changes are contained in two articles, 1395 and 1398, which aim to address shortcomings in the church’s handling of sexual abuse. The law recognizes that adults, not only children, can be victimized by priests who abuse their authority. The revisions also say that laypeople holding church positions, such as school principals or parish economists, can be punished for abusing minors as well as adults.

The Vatican also criminalized priests “grooming” minors or vulnerable adults to compel them to engage in pornography. The update represents the first time church law has officially recognized as a criminal act the method used by sexual predators to build relationships with victims they have targeted for sexual exploitation.

The new law, which is set to take effect on Dec. 8, also removes much of the discretion that long allowed bishops and religious superiors to ignore or cover up abuse, making clear those in positions of authority will be held responsible if they fail to properly investigate or sanction predator priests.

A bishop can be removed from office for “culpable negligence” or if he does not report sex crimes to church authorities, although the canon law foresees no punishment for failing to to report suspected crimes to police.

The President and the Secretary of the Pontifical Council for Legislative Texts spoke at a news conference announcing the revisions. (full text of their remarks in Latin). [Thanks to Scott Mange for the lead.]

Monday, May 31, 2021

2nd Circuit Panel Grants Rehearing In New York Abortion Protest Case

As previously reported, in People of the State of New York v. Griepp, (ED NY, July 20, 2018), a New York federal district court, in a 103-page opinion, refused to grant the New York Attorney General a preliminary injunction against anti-abortion protesters who had been clashing with volunteer clinic escorts outside a Queens medical center. The suit alleged that the protesters violated the federal Freedom of Access to Clinic Entrances Act (FACES), the New York Clinic Access Act (NYSCAA) and a similar New York City provision. On appeal, a 3-judge panel of the 2nd Circuit (March 10, 2021) (full text of opinions) in 3 opinions spanning 172 pages disagreed with most of the district court's conclusions. Now in an Order (full text) issued May 28, the panel vacated its opinion and granted a rehearing. The Order provides that in the meantime, the decision of the district court remains in place.

Sunday, May 30, 2021

Biden Issues Statement On Anti-Semitic Attacks

On Friday, President Biden issued a Statement (full text) on the Rise of Anti-Semitic Attacks. The Statement reads in part:

In the last weeks, our nation has seen a series of anti-Semitic attacks, targeting and terrorizing American Jews.... I will not allow our fellow Americans to be intimidated or attacked because of who they are or the faith they practice.

We cannot allow the toxic combination of hatred, dangerous lies, and conspiracy theories to put our fellow Americans at risk. As Attorney General Garland announced yesterday, the Department of Justice will be deploying all of the tools at its disposal to combat hate crimes.... We must all stand together to silence these terrible and terrifying echoes of the worst chapters in world history, and pledge to give hate no safe harbor.

Suit Challenges County's Limiting Jail Chaplain Position to Those With Christian Beliefs

Suit was filed last week in a Maryland federal district court by a Muslim volunteer jail chaplain challenging the requirements imposed by Prince Georges County, Maryland on applicants for a paid jail chaplain position. The complaint (full text) in Bridges v. Prince Georges County, Maryland, (D MD, filed 5/27/2021), alleges that provisions of the county's agreement with Prison Ministry of America violate the Establishment and Free Exercise Clauses:

Defendant PG County illegally required all applicants to sign a so-called “Statement of Applicant’s Christian Faith.”

... [The Statement] requires applicants to affirm that they “believe in one God, Creator and Lord of the Universe, the co-eternal Trinity, Father, Son, and Holy Spirit,” that “Jesus Christ, God’s Son, was conceived by the Holy Spirit, born of the Virgin Mary, lived a sinless life, [and] died a substitutionary atoning death on the cross,” and that “the Bible is God’s authoritative and inspired Word…without error in all its teachings, including creation, history, its own origins, and salvation.”

CAIR issued a press release announcing the filing of the lawsuit. AP has additional background on the lawsuit.

Friday, May 28, 2021

EEOC Adopts Resolution Condemning Antisemitism

The EEOC announced yesterday that it has unanimously adopted a Resolution (full text) condemning Antisemitism. The Resolution reads in part:

[T]he U.S. Equal Employment Opportunity Commission condemns in the strongest possible terms the recent violence, harassment, and acts of bias against Jewish persons; expresses our heartfelt sympathy to and solidarity with victims and their families; and reaffirms our commitment to combat religious, ethnic, and national origin-based harassment and all other forms of unlawful discrimination and to ensure equal opportunity, inclusion, and dignity for all throughout America’s workplaces.

Church's Suit Against Bank Dismissed On Ecclesiastical Abstention Grounds

In Eglise Baptiste Bethanie De Ft. Lauderdale, Inc. v. Bank of America, N.A., (FL App., May 26, 2021), a Florida state appellate court, in a 2-1 decision, affirmed the dismissal of a suit by a Baptist church against a bank for negligently transferring control of the church's bank accounts to the widow of the deceased pastor. The court said in part:

Here, although the Church’s negligence claims against the Banks involve a question of control over bank accounts, in order to resolve those claims the court would necessarily have to decide which faction within the Church controls the bank accounts. The only way for the court to make this determination is for it to consider the Church’s internal governance structure. “[Q]uestions of church governance are manifestly ecclesiastical.” Id. Accordingly, the trial court did not err in dismissing the case for lack of subject matter jurisdiction based on the ecclesiastical abstention doctrine.

Judge Winter dissented, saying in part:

Appellants argued that the case could be decided on neutral legal principles, and to determine otherwise goes beyond the four corners of the complaint. At best, therefore, dismissal was premature. The ecclesiastical abstention doctrine applies to church property disputes in hierarchical religious organizations. A different rule applies to churches which are congregational organizations. Based upon the correct rule, dismissal was error.