6th Circuit Permits Same-Sex Couple To Intervene In Lawsuit By Catholic Adoption Agency

The U.S. 6th Circuit Court of Appeals this week issued an opinion on a procedural issue in the continuing battle between the state of Michigan and Catholic adoption and foster care agencies.  In settling a case brought by a same-sex couple, the state agreed to impose sexual-orientation non discrimination requirements on child-placement agencies that contract with the state. Then the district court issued a preliminary injunction protecting the Catholic agency.  Now in Buck v. Gordon, (6th Cir., May 11, 2020), the Court of Appeals held that the trial court should have allowed permissive intervention in the case by a same-sex couple whose earlier lawsuit triggered Michigan's imposition of the non-discrimination requirements. Meanwhile the underlying case is on hold awaiting the U.S. Supreme Court's decision on a similar issue in Fulton v. City of Philadelphia.

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.

Pakistan Creates National Commission For Minorities

UCA News reports that on May 5, Pakistan's federal cabinet approved creation of a National Commission for Minorities. Pakistan's Supreme Court had called for the government to create such a body over six years ago.  The Commission will have representatives from the Christian, Muslim, Hindu, Sikh, Parsi and Kelash  communities. No Ahmadi Muslims are included.  Some minority groups have criticized the Commission as having no power.  The U.S. Commission on International Religious Freedom, however, welcomed the action by the Pakistani government.

Suit Against Community College Challenges Campus Speech Restrictions

Suit was filed in an Oregon federal district court last week by a pro-life group and two Christian students challenging a community college's policies that require advance approval for speech activities on campus as well as limiting speeches and leafleting to certain speech zones.The complaint (full text) in Chemeketa Students for Life v. Members of the Chemketa Board of Education, (D OR, filed 5/5/2020) challenges the school's policies on free speech and vagueness grounds. ADF issued a press release announcing the filing of the lawsuit.

Maine Ban On Religious Gatherings Over 10 Persons Is Upheld

In Calvary Chapel of Bangor v. Mills, (D ME, May 9, 2020), a Maine federal district court refused to issue a temporary restraining order against Maine Governor Janet Mills' COVID-19 order which prohibits religious gatherings of more than ten people. The court rejected plaintiff's free exercise, Establishment Clause and free speech challenges to the Order.

Waiver For Foster Care Agencies To Select Parents Using Religious Criteria Violates Establishment Clause

In Rogers v. U.S. Department of Health and Human Services, (D SC, May 8, 2020), a South Carolina federal district court refused to dismiss Establishment Clause and sexual orientation discrimination claims by a lesbian couple who challenged waivers granted by the state and federal government allowing religious child placement agencies (CPA's) receiving government funds to select foster parents on the basis of religion. (See prior posting.) The court said in part:

Plaintiffs allege that their inability to become foster parents through Miracle Hill was directly caused by the actions of the State Defendants and Federal Defendants because they have affirmatively enabled the discrimination against Plaintiffs by authorizing Miracle Hill and other religiously-affiliated CPAs to use religious criteria to reject prospective foster parents....

[T]he court finds that a reasonable, informed observer could conclude that the Defendants’ actions were taken in an effort to protect a specific CPA, Miracle Hill, and permit discrimination within South Carolina’s foster care program on the basis of Miracle Hill’s religious criteria. Other courts have similarly held that where, as Plaintiffs allege occurred in this case, a state’s authorization for faith-based CPAs to use religious criteria to exclude prospective foster parents “objectively endorses the religious views of those agencies[,] . . . sending a message . . . that [those prospective foster parents who are rejected] are outsiders, not full members of the community.”... Accordingly, taking all facts set forth in the Complaint as true, Plaintiffs have set forth sufficient allegations that Defendants’ actions had the primary effect of advancing and endorsing religion and, thereby, violate the Lemon test and the requirements of the Establishment Clause. ....

Contrary to Defendants’ argument, the Supreme Court has long recognized that the Constitution does not permit “a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.”... Therefore, to the extent Defendants’ assert that their actions are immune from challenge under the Establishment Clause as “religious accommodation,” such argument is directly contrary to the well-pled allegations in the Complaint and long-established federal jurisprudence and must be rejected at this stage of the proceedings.

Lambda Legal issued a press release announcing the decision.

Pastor Sues Over COVID-19 Orders and Conditions of Bond

In Louisiana, Pastor Tony Spell, who has defied state COVID-19 stay-at-home orders by holding large church services at Life Tabernacle Church in Central, Louisiana, has filed suit against Governor John Bel Edwards and other officials seeking a temporary restraining order allowing him to continue to hold services.  The suit challenges both the Governor's emergency orders and special conditions of bond imposed on Spell after he was charged with nearly running over a protester with his church bus. Those special conditions include compliance with the Governor's orders. The complaint (full text) in Spell v. Edwards, (MD LA, filed 5/7/2020) alleges in part:

There has been no factual determination made that Pastor Spell has actually violated the ambiguous and contradictorily-worded Emergency Orders, but Defendants are enforcing by penalties and home incarceration the Emergency Orders against him as if alleged violations were proven fact by the "end run" of a misplaced "special condition of bond," currently imposed by a Louisiana State District Court judge. Furthermore Defendants have explicitly failed and refused to even allow argument regarding the discriminatory and disparately applied orders against Pastor Spell and Life Tabernacle Church while allowing local and similarly situated non-religious businesses-"big box" retailers, groceries and hardware stores to continue business accommodating gatherings, crowds of more than ten (10) people or of any limit whatsoever, without the enforcement of any "social distancing," or other measures supposedly required by the Emergency Orders.

WBRZ News reports on the lawsuit.

Supreme Court Oral Arguments In Ministerial Exception Cases Live Today

At 11:00 AM today, the U.S. Supreme Court will hear oral arguments in Our Lady of Guadalupe School v. Morrissey-Berru (SCOTUSblog case page), and St. James School v. Biel (SCOTUSblog case page). In the cases, the U.S. 9th Circuit Court of Appeals held that the Catholic school teacher in each of the cases was not prevented from bringing an employment discrimination lawsuit. The 9th Circuit held that they are not "ministers" for purposes of the "ministerial exception" doctrine.  The oral arguments, which will be held via teleconference may be heard on C-Span live at this link.   Los Angeles Times reports on the cases.

UPDATE: Here is the transcript of the full arguments in the cases. Reuters reports on the oral arguments.

Recent Articles of Interest

From SSRN:

• Rafael Domingo, Toward the Spiritualization of Politics, (April 9, 2020).
• Beatrice Jessie Hill, The Deliberative Privacy Principle: Abortion, Free Speech, and Religious Freedom, (William & Mary Bill of Rights Journal, Vol. 28, 2019).
• Jason A. Cade, 'Water is Life!' (and Speech!): Death, Dissent and Democracy in the Borderlands, (Indiana Law Journal, Vol. 96 (Forthcoming)).
• Engy Abdelkader, China's Repression of Uigher Muslims: A Human Rights Perspective in Historical Context, (UCLA Law Journal of Islamic & Near Eastern Law (2020).
• Joseph Davis & Nicholas Reaves, Fruit of the Poisonous Lemon Tree: How the Supreme Court Created Offended-Observer Standing, and Why It's Time for it to Go, (Notre Dame Law Review, Forthcoming).
• Dimitry Kochenov & Uladzislau Belavusau, Same-Sex Spouses: More Free Movement, but What About Marriage? Coman: Case C-673/16, Coman et al. v. Inspectoratul General Pentru Imigrări, Judgement of the Court of Justice (Grand Chamber) of 5 June 2018, (Common Market Law Review 57(1), pp. 227–242, 2020).
• A.T. Mohd, A.M. Yunus & I. Hassan, Ideology, Communication, and Response to Terrorism: A Sharia-based Perspective, (International Journal of Academic Research in Business and Social Sciences, 10(3), 124–130 (2020).

TRO Issued Against Kentucky In-Person Worship Service Restriction

In Tabernacle Baptist Church, Inc. of Nicholasville, Kentucky v. Beshear, (ED KY, May 8, 2020), a Kentucky federal district court issued a state-wide temporary restraining order enjoining the state of Kentucky from enforcing the governor's COVID-19 ban on mass gatherings with respect to in-person religious services that comply with applicable social distancing and hygiene guidelines. The court said in part:

The prohibition on mass gatherings is not narrowly tailored as required by Lukumi. There is ample scientific evidence that COVID-19 is exceptionally contagious. But evidence that the risk of contagion is heightened in a religious setting any more than a secular one is lacking. If social distancing is good enough for Home Depot and Kroger, it is good enough for in-person religious services which, unlike the foregoing, benefit from constitutional protection.

First Liberty issued a press release announcing the decision.

6th Circuit Enjoins Ban On In-Person Worship Services

In Roberts v. Neace, (6th Cir., May 9, 2020), the U.S. 6th Circuit Court of Appeals issued an injunction barring enforcement pending appeal of Kentucky Governor Andrew Beshear's COVID-19 order banning in-person church services at Maryville Baptist Church. A week ago, in another opinion, the same court barred the ban on drive-in services. The court now noted:

In the week since our last ruling, the Governor has not answered our concerns that the secular activities permitted by the order pose the same public-health risks as the kinds of in-person worship barred by the order. 

Earlier in its opinion, the court explained:

The orders allow “life-sustaining” operations and don’t include worship services in the definition. And many of the serial exemptions for secular activities pose comparable public health risks to worship services. For example: The exception for “life-sustaining” businesses allows law firms, laundromats, liquor stores, gun shops, airlines, mining operations, funeral homes, and landscaping businesses to continue to operate so long as they follow social-distancing and other health-related precautions.... But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of the other services. 

Keep in mind that the Church and its congregants just want to be treated equally....  The Governor has offered no good reason for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same.

Come to think of it, aren’t the two groups of people often the same people—going to work on one day and going to worship on another? How can the same person be trusted to comply with social-distancing and other health guidelines in secular settings but not be trusted to do the same in religious settings?

... Nor does it make a difference that faith-based bigotry did not motivate the orders. The constitutional benchmark is “government neutrality,” not “governmental avoidance of bigotry.”

Liberty Counsel issued a press release announcing the decision.

White House Views CDC Reopening Guidelines As Infringements On Religious Liberty

New York Times reports today that the White House has rejected proposed CDC Guidelines for reopening schools, businesses and houses of worship.  A significant part of the White House objections focused on religious liberty concerns. The Times said in part:

... White House and other administration officials rejected the recommendations over concerns that they were overly prescriptive, infringed on religious rights and risked further damaging an economy that Mr. Trump was banking on to recover quickly. One senior official at the Department of Health and Human Services with deep ties to religious conservatives objected to any controls on church services.

“Governments have a duty to instruct the public on how to stay safe during this crisis and can absolutely do so without dictating to people how they should worship God,” said Roger Severino, the director of the Department of Health and Human Services’ Office for Civil Rights, who once oversaw the DeVos Center for Religion and Civil Society at the Heritage Foundation....

Particularly contentious were the C.D.C.’s recommendations for churches and other houses of worship. Mr. Severino vocally opposed them.

“Protections against religious discrimination aren’t suspended during an emergency,” he said in a statement on Thursday. “This means the federal government cannot single out religious conduct as somehow being more dangerous or worthy of scrutiny than comparable secular behavior.”

The recommendations for churches include encouraging all congregants to wear cloth face coverings when inside the building, offering video streaming or drive-in options for services and considering “suspending use of a choir or musical ensemble” during services. It also urges churches to consider “temporarily limiting the sharing of frequently touched objects,” like hymnals, prayer books and passed collection baskets....

In one version of the draft guidance, the section titled “Interim Guidance for Communities of Faith” was left blank, with a note in capital letters referring to multiple federal agencies that have to come to agreement. But another version included the guidance for faith communities with the caveat that it “is not intended to infringe on First Amendment rights as provided in the U.S. Constitution.”

“The federal government may not prescribe standards for interactions of faith communities in houses of worship,” the second version states. “C.D.C. offers these suggestions that faith communities may consider and accept or reject.”

White House National Day of Prayer Service Held Yesterday

The White House has released the transcript of the final 35 minutes of the National Day of Prayer Service held in the White House Rose Garden yesterday. Video of the full 47-minute service, which included remarks and prayers from numerous faith leaders, as well as remarks from the President, the First Lady and the Vice President, is available in full from C-SPAN at this link.

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.

Yesterday's National Day of Prayer Proclamation

Missed in the flood of developments, yesterday was National Day of Prayer. Here is the full text of President Trump's Proclamation which focused in large part on the COVID-19 crisis, saying in part:

Today, as much as ever, our prayerful tradition continues as our Nation combats the coronavirus.  During the past weeks and months, our heads have bowed at places outside of our typical houses of worship, whispering in silent solitude for God to renew our spirit and carry us through unforeseen and seemingly unbearable hardships.  Even though we have been unable to gather together in fellowship with our church families, we are still connected through prayer and the calming reassurance that God will lead us through life’s many valleys.  In the midst of these trying and unprecedented times, we are reminded that just as those before us turned to God in their darkest hours, so must we seek His wisdom, strength, and healing hand.  We pray that He comforts those who have lost loved ones, heals those who are sick, strengthens those on the front lines, and reassures all Americans that through trust in Him, we can overcome all obstacles....

I encourage all Americans to observe this day, reflecting on the blessings our Nation has received and the importance of prayer, with appropriate programs, ceremonies, and activities in their houses of worship, communities, and places of work, schools, and homes consistent with the White House’s “Guidelines for Opening up America Again.”

Church Sues Maine Governor Over COVID-19 Restrictions

A lawsuit was filed on Tuesday in a Maine federal district court challenging Maine Governor Janet Mills' COVID-19 Order that restricts in-person religious services.  The complaint (full text) in Calvary Chapel of Bangor v. Mills, (D ME, filed 5/5/2020), alleges in part:

Calvary Chapel seeks a TRO restraining enforcement against Calvary Chapel of the various COVID-19 orders issued by Governor Mills and other State officials purporting to prohibit Calvary Chapel, on pain of criminal sanctions, from gathering in person at Calvary Chapel for worship services, regardless of the number of individuals present or whether Calvary Chapel meets or exceeds the social distancing and hygiene guidelines pursuant to which the State disparately and discriminatorily allows so-called “essential” commercial and non-religious entities (e.g., liquor stores, marijuana dispensaries, warehouse clubs, and ‘big box’ stores) to accommodate large crowds and masses of persons without scrutiny or numerical limit.

Bangor Daily News reports on the lawsuit.

Kentucky Governor Sued By Church and State AG Over COVID-19 Restrictions On Services

A church filed suit yesterday in a Kentucky federal district court challenging Kentucky Governor Andrew Beshear's COVID-19 Orders which bans in-person religious services but allows businesses categorized as "life-sustaining" to remain open with proper social distancing. The complaint (full text) in Tabernacle Baptist Church, Inc. of Nicholasville, Kentucky v. Beshear, (ED KY, filed 5/6/2020) alleges in part:

The exception in Governor Beshear’s order for “life-sustaining” businesses allows shopping malls, grocery stores, hardware stores, law firms, laundromats, liquor stores, and gun shops to continue to operate without fear of state police taking adverse action against participants in such endeavors, so long as they follow social-distancing and other health-related precautions. Businesses allowed to operate (like retail stores, for instance) have no numerical limitations or other restrictions that would cap the number of people who can gather together indoors. Defendants have thus deemed it safe to walk down an aisle in a grocery store, but not an aisle between pews, and to interact with a delivery woman, but not with a minister.

Kentucky Attorney General Daniel Cameron announced that he has filed a complaint (full text of complaint) seeking to intervene as a plaintiff opposing the Governor's Orders.  In his announcement, the Attorney General said in part:

The Governor continued his arbitrary and unlawful targeting of faith-based groups when he announced last week that some businesses, including dog groomers, horse races, manufacturers, and car dealerships, can reopen as early as May 11, nine days before houses of worship can reopen.  The law requires religious services to be treated no differently than secular activity, as long as those participating follow appropriate Centers for Disease Control (“CDC”) recommendations.

Thus a Republican state attorney general is pitted against a Democratic governor in federal court. WKYT News reports on the lawsuit.

Churches Sue Michigan Governor Over COVID-19 Orders Despite Their Exemption From Penalties

A group of churches and clergy yesterday filed suit in a Michigan federal district court challenging on a wide variety of state and federal constitutional grounds the stay-at-home orders of Michigan's Governor Gretchen Whitmer. These orders do not exempt churches, but do provide that they are not subject to any penalty for violating the restrictions.  The complaint (full text) in Word of Faith Christian Center Church v. Whitmer, (WD MI, filed 5/6/2020) alleges in part:

7.  EO   2020-70   continues   to   prohibit   gatherings   of   two   or   more individuals, including at churches, thereby denying them the ability to hold worship services and otherwise carry out their ministry functions until May 28, 2020.

8.  While EO 2020-70 states that “neither a place of religious worship nor its owner is subject to penalty under section 20 of this order for allowing religious worship at such place,” nothing in this provision applies to individuals attending a place or worship as clergy or congregants and does not apply to Plaintiffs.

9. A  promise  to  not  subject  a  geographic  location or  its  “owner”  to  the  criminal penalty under  EO  2020-70 merely  adorns  the  constitution  with  a  fig  leaf  and does not protect individuals or change the clear language of the order prohibiting any   religious services   or   other   ministry functions   at   a   church   or   religious  organization.

M Live reports on the lawsuit.

Church's Challenge To California Stay-At-Home Orders Is Rejected

In Cross Culture Christian Center v. Newsom, (ED CA, May 5, 2020), a California federal district court refused to enter a temporary restraining order against enforcement of state and county COVID-19 stay-at-home orders. The orders were challenged by a church wishing to hold in-person services. Rejecting plaintiff's free exercise claim, the court held that the orders are neutral laws of general applicability subject only to rational basis review.

Supreme Court Will Broadcast Contraceptive Mandate Case Arguments Today In Real Time

Beginning at 10:00 am (EDT) this morning, the U.S. Supreme Court will hear consolidated oral arguments in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania  (SCOTUSblog case page) and Trump v. Pennsylvania (SCOTUSblog case page). In the case, the 3rd Circuit upheld a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding exemptions under the Affordable Care Act for employers with religious or moral objections to contraceptive coverage. Little Sisters of the Poor were intervenors in the 3rd Circuit case. (See prior posting.)  Under the Supreme Court's special procedures for arguments during the COVID-19 crisis, arguments will be conducted via teleconference which will be broadcast live by C-Span at this link.