Deputy Has Qualified Immunity In Suit Claiming His Failure to Intervene in Establishment Clause Violation

 In White v. Goforth, (6th Cir., May 18, 2023), the U.S. 6th Circuit Court of Appeals held that Sheriff's Deputy Jacob Goforth had qualified immunity in a suit against him for failing to intervene in conduct by Daniel Wilkey, an on-duty officer who is also a preacher. Wilkey called Goforth asking him to witness a baptism at a nearby lake.  The court explained:

Unbeknownst to Goforth, Wilkey had stopped Shandle Riley earlier that evening and found her in possession of marijuana. Wilkey told Riley that if she agreed to let him baptize her, he would issue her a citation and not take her to jail. She agreed and followed Wilkey in her car to a nearby lake. When Goforth arrived, he saw what appeared to be a consensual, if improper, situation.... Critically, however, Goforth never learned of Wilkey’s improper quid pro quo.....

Reversing the Tennessee district court's denial of qualified immunity, the appeals court said in part:

Riley asserts that Wilkey’s coerced baptism of her violated the Establishment Clause. That may well be so. Coercion “was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.”... Threatening jail time for refusing Christian baptism seems an easy fit for this category. But even if Wilkey violated Riley’s constitutional rights, Wilkey is not before us; only Goforth is. There is nothing in the record indicating that Goforth knew of Wilkey’s quid pro quo....

The district court thought that, even absent coercion, it was clearly established that an officer in Goforth’s position would be “liable for failing to intervene if a reasonable observer” would have perceived a governmental endorsement of religion, as defined by the Lemon test and its progeny....We cannot agree. First, Kennedy clarified that the Supreme Court had “long ago abandoned Lemon and its endorsement test offshoot.” ... If that is so, then Goforth could not have had a clearly established duty to stop Wilkey from violating it....

Moreover, we can find no case that had ever found an officer liable where his fault was not his own endorsement of religion, but his failure to intervene in someone else’s.

Court Defines Clergy-Penitent Privilege Under Montana Law

Caekaert v. Watchtower Bible and Tract Society of New York, (D MT, May 22, 2023), involved a motion by plaintiff to compel production of documents that the Jehovah's Witnesses parent body withheld in discovery claiming clergy-penitent privilege. At issue were reports from congregations to the parent body of known child molesters currently or formerly in appointed positions in the congregation. In defining the scope of the clergy-penitent privilege, the Montana federal district court said in part:

The Court recognizes the deference it must give religious groups in the organization of their internal affairs. However ... such deference does not mean a religious organization determines for the Court what is privileged merely by contending that it is confidential under the religious body's doctrine...

At the same time, the Court recognizes that the privilege is not so narrow so as to exclude non-penitential statements made in the course of the church's disciplinary process....

Illinois AG Releases Report on Catholic Clergy Child Sex Abuse

Yesterday, Illinois Attorney General Kwame Raoul released its 696-page Report on Catholic Clergy Child Sex Abuse in Illinois (full text). The Report stems from an investigation thar began in 2018. The Attorney General's message that begins the report says in part:

As a direct result of this investigation and my team’s persistence, the dioceses have improved their policies relating to their investigations of child sex abuse allegations and the public disclosure of substantiated child sex abusers. Before this investigation, the Catholic dioceses of Illinois publicly listed only 103 substantiated child sex abusers. By comparison, this report reveals names and detailed information of 451Catholic clerics and religious brothers who abused at least 1,997 children across all of the dioceses in Illinois.

The Report concludes with a series of recommendations. It points out that in 2014, Illinois eliminated the statute of limitations for civil claims of child sex abuse. However, that law does not permit filling of claims for which the statute of limitations had run before 2014, and the Illinois Supreme Court has held that creating a look-back window for such claims would require an amendment to the state constitution. The Report suggests that Dioceses establish independent mediation and compensation programs that would cover these claims. AP discusses reactions to the AG's Report.

Judge's Religious Comments Did Not Violate Defendant's Rights

 In State of Ohio v. Loftis, (OH App., May 19, 2023), an Ohio state appellate court held that a judge's references to religion during a sentencing hearing for defendant who was convicted of sexual battery did not violate defendant's due process rights or the Establishment Clause. During the sentencing hearing, the trial court judge said in part:

... [T]he diminished influence or role of organized churches and faith or religion in the world, that whole diminishing concept isn’t boding well for the community. No surprise maybe if you read Revelation, if you do Biblical prophecy, you are all going to end up in a big dumpster fire at some point in time, so the trend is exactly what we are seeing....

The statutes, the law, every social moray[,] every religious system at least in terms of the New Testament years have said there is a duty to protect children. Some societies sacrifice children, but that’s thousands of years ago. It’s the other way around. Is that lost? Yeah, totally it’s lost. That doesn’t mean the expectation is not there....

The appellate court said in part:

 ... [T]he trial judge’s comments did not suggest that he was referencing his own religious beliefs as a guideline for his sentencing decision. Instead, his comments were limited to espousing his belief that the lack of a religious foundation leads to improper behavior. 

More importantly, we conclude that the trial court complied with the applicable provisions of R.C. Chapter 2929. The record affirmatively demonstrates that the trial court relied upon the proper statutory factors....

AAUP Issues Report on Hamline University Islamic Art Controversy

 The Association of American University Professors Committee A on Academic Freedom and Tenure has released its report (full text) on the actions of Hamline University in refusing to renew the contract of a part-time art history professor who created a controversy when she presented two historical images of the Prophet Muhammad in an online class session. (See prior posting.) The AAUP Report concluded in part:

Professor Erika López Prater’s decision to display historical images of the Prophet Muhammad in a World Art class was not only justifiable and appropriate on both scholarly and pedagogical grounds; it was also protected by academic freedom. The Hamline administration was wrong to characterize this decision as “undeniably inconsiderate, disrespectful and Islamophobic.” Similarly, the university’s contention that care for students must “supersede” academic freedom reflected an inaccurate and harmful understanding of the nature of academic freedom in the classroom. The university has since disavowed both claims.

The Star Beacon discusses the report and the University's response to it.

Oklahoma Passes School Choice Tax Credit Law

Last Friday the Oklahoma legislature completed passage and sent to the governor for his signature HB1934, the Oklahoma Parental Choice Tax Credit Act (full text). The bill creates a tax credit against Oklahoma state income tax for tuition and fees paid for private school education. The credit varies from $5000 to $7500 depending on the household income.  It also provides a $1000 tax credit for home school expenses. The bill imposes annual caps on the amount of credits the state will recognize, which increases from $150 million to $250 million in 2026. Governor Kevin Stitt issued a press release celebrating the legislature's passage of the law.

Recent Articles of Interest

From SSRN:

• Samuel L. Bray, The Influence of the Catholic Intellectual Tradition on the Common Law, (Faith in Law, Law in Faith (Rafael Domingo, Gary S. Hauk, and Timothy P. Jackson eds., Brill Forthcoming).
• Ronald J. Colombo, Religious Freedom and the Business Corporation, (Hofstra Univ. Legal Studies Research Paper Forthcoming).
• Amanda L. Tyler, Judicial Review in Times of Emergency: from the Founding through the COVID-19 Pandemic, (Virginia Law Review, Vol. 109, No. 3, 2023).
• Johannes Reich, Switzerland – 2022 Review of Constitutional Law: Contested Permanent Neutrality and the Constitutionality of ‘Laïcité’ in Geneva, (Global Review of Constitutional Law (Richard Albert, David Landau, Pietro Faraguna & Giulia Andrade, eds.), Forthcoming).
• S. Ernie Walton, Religious Charter Schools: The Time Has Come, (Regent University Law Review, Pro Tempore, Forthcoming).
• Robert J. Miller, The Vatican Repudiates the International Law of Colonialism - Maybe?, (May 3, 2023).
• Renato Saeger Magalhaes Costa, Free to Teach: State Limits and the Protection of Private Schools Religious Liberties, (Dignitas — Revista Internacional do Instituto Brasileiro de Direito e Religião,  p. 33-80 (2021).
• Brett V. Ries, Don't Be A Drag: How Drag Bans Can Violate the First Amendment, (May 5, 2023).
• Risa L. Goluboff, “Charlottesville” as Legal History, (Journal of American Constitutional History Issue 2, Volume 1, 2023).

From SmartCILP:

• Mark Goldfeder, Codifying Antisemitism, [Abstract], 127 Penn State Law Review 405-454 (2023).

Florida Governor Signs 5 Bills Labeled As "Protecting Innocence of Florida's Children"

On Wednesday, Florida Governor Ron DeSantis signed 5 bills into law which a press release from the governor's office described as "legislation to protect the innocence of Florida's children." 

• Senate Bill 254 (full text) prohibits sex-reassignment prescriptions or procedures for individuals under 18 years of age.
• House Bill 1069 (full text) prohibits K-12 schools from asking students to provide their preferred title or pronoun; prohibits requiring employees or students to refer to others by their preferred pronouns; and prohibits employees from providing their preferred title or pronoun to any student if the title or pronoun does not correspond to the person's biological sex.
• Senate Bill 1438 (full text) prohibits admitting children to sexually explicit adult performances that are pornographic for children. A summary of the bills released by the governor's office says that this includes a ban on admitting children to drag shows.
• House Bill 1521 (full text) requires individual to use restrooms and changing facilities that correspond to their biological sex in educational institutions, correctional institutions and public buildings.
• House Bill 225 (full text) allows charter and online school students to participate in extracurricular activities at public or private schools. It also provides that high school athletic associations that include public schools must allow any school participating in a championship contest to make 2-minute opening remarks using the public address system. It goes on to provide:

The athletic association may not control, monitor, or review the content of the opening remarks and may not control the school’s choice of speaker. Member schools may not provide remarks that are derogatory, rude, or threatening. Before the opening remarks, an announcement must be made that the content of any opening remarks by a participating school is not endorsed by and does not reflect the views and or opinions of the athletic association.... 

A summary of the bills released by the governor's office says that this includes the right to offer public prayer at high school sporting events.

The Washington Stand has additional reporting on the bill signings.

Biden Announces Appointments to Holocaust Memorial Council

On Wednesday, President Biden announced the names of ten individuals whom he intends to appoint to the 68-member Holocaust Memorial Council. The President appoints 55 of the members. Presidential appointees serve five-year terms. Among the ten new appointees are Ted Deutch who is CEO of the American Jewish Committee; Rabbi Michael Beals who is rabbi of a congregation in President Biden's home town of Wilmington, Delaware; and Jonathan Lavine who is co-managing partner of Bain Capital.

New Michigan Law Bars Employment Discrimination Because of Abortion

Yesterday, Michigan Governor Gretchen Whitmer signed SB147 (full text) which amends the Elliott-Larsen Civil Rights Act to bar discrimination because the individual has had an abortion. Bridge Michigan reports on the new law.

European Court Upholds Politician's Conviction for Failing to Remove Third Party Hate Speech from His Facebook Page

In Sanchez v. France, (ECHR, May 15, 2023), the European Court of Human Rights by a vote of 13-4 in a Grand Chamber judgment upheld France's conviction of a candidate for election to Parliament who was convicted of inciting violence against Muslims when he failed to promptly remove anti-Muslim postings by third parties placed on his Facebook page. The authors of the comments were convicted as accomplices. The majority concluded that the conviction did not violate Article 10, §1 of the European Convention on Human Rights since that section permits an interference with free expression when "necessary in a democratic society."  The majority said in part:

148.  While political speech calls for an elevated level of protection, the freedom of political debate is not absolute in nature....

149.  Since tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society, it follows that, in principle, it may be considered necessary in certain democratic societies to penalise or even prevent all forms of expression that propagate, encourage, promote or justify hatred based on intolerance (including religious intolerance), provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued.... 

176.  ... [I]n an election context, the impact of racist and xenophobic discourse becomes greater and more harmful.... That is particularly true in the present circumstances where the political and social climate was troubled, especially at the local level with “clear tensions within the population, which were evident in particular from the comments at issue, but also between the protagonists”.... 

209.  ... [T]he Court finds that the decisions of the domestic courts were based on relevant and sufficient reasons, both as to the liability attributed to the applicant, in his capacity as a politician, for the unlawful comments posted in the run-up to an election on his Facebook “wall” by third parties, who themselves were identified and prosecuted as accomplices, and as to his criminal conviction. The impugned interference can therefore be considered to have been “necessary in a democratic society”.

The Court also posted a Legal Summary of the decision.

Counselor Sues After Being Fired for Speaking About School's Gender Support Plan

Suit was filed yesterday in an Indiana federal district court by a school counselor who was fired for speaking with a reporter about her school's Gender Support Plan policy which involves using a gender transitioning student's preferred name and pronouns, sometimes without informing the student's parents. The school claimed that some of the counselor's statements to the reporter were false. The complaint (full text) in McCord v. South Madison Community School Corporation, (SD IN, filed 5/18/2023), alleges that the firing violated the counselor's free speech rights. It also alleged that the school district violated plaintiff's right to free exercise of religion, in violation of the 1st Amendment and of Indiana's Religious Freedom Restoration Act. The complaint alleges in part:

420. ... Mrs. McCord has sincerely held religious beliefs that require her not to participate in the Gender Support Plan policy; socially transitioning students and hiding social transitions from parents would violate those beliefs.

421. If South Madison had not taken adverse employment action against Mrs. McCord in retaliation for exercising her constitutional rights, she could not comply and would not intend to comply with the Gender Support Plan policy’s requirements regarding socially transitioning students and parental notification.

422. South Madison has failed to act in a neutral manner toward Mrs. McCord’s religious beliefs but has instead acted with hostility towards those beliefs.

423. Among other things, its employee, Mr. Taylor, acting pursuant to South Madison’s policies and practices, instructed Mrs. McCord to leave her religious beliefs out of her job as a school counselor.

424. Additionally, South Madison has targeted Mrs. McCord for her religious beliefs by granting accommodations allowing other employees who have not asserted Mrs. McCord’s religious beliefs not to comply with the Gender Support Plan policy, while refusing to grant one to Mrs. McCord.

ADF issued a press release announcing the filing of the lawsuit.

5th Circuit Hears Arguments on FDA Approval of Abortion Drug

Yesterday the U.S. 5th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Alliance for Hippocratic Medicine v. Food & Drug Administration.  In the case, a Texas federal district court held that plaintiffs have a substantial likelihood of success on their claim that the FDA's 2021 action allowing the abortion drug mifepristone to be distributed by mail violates the Comstock Act and thus was also in violation of the Administrative Procedure Act. The court also concluded that the FDA's approval in 2000 of doctors prescribing mifepristone violated the agency's rules for approval of new drugs. (See prior posting.) Last month, the U.S. Supreme Court granted a stay of the district court's order that is to last until appeals to both the 5th Circuit and the Supreme Court have run their course. (See prior posting.)  CNN reports on yesterday's oral arguments.

Texas Legislature Passes Law Banning Gender-Affirming Health Care for Individuals Under 18

Yesterday the Texas legislature gave final approval to SB 14 (full text) which prohibits the provision of gender transitioning or gender reassignment procedures to individuals under 18 years of age. The bill bars both surgeries and puberty suppression or blockers. The state medical board is required to revoke the license of any physician who violates the treatment ban. Texas Governor Greg Abbott is expected to sign the bill.  AP reports on the bill's passage.

Establishment Clause Challenge to Transcendental Meditation Program in High School Moves Ahead

In Williams v. Board of Education of the City of Chicago, (ND IL, May 16, 2023), an Illinois federal district court refused to grant summary judgment to either side on an Establishment Clause challenge to a high school's elective instruction in Transcendental Meditation brought by former student Amonte Williams.  The court said in part:

[T]here is evidence that a Transcendental Meditation instructor separated Williams from his classmates and brought him individually to a different classroom for the initiation. A reasonable jury could find that Williams, having arguably signed up to be trained in Transcendental Meditation, was then required to observe a religious ceremony in order to learn meditation and was misled about the ceremony's religious nature. The scenario as presented by Williams differs from the school prayer cases ... because there was no imposition or mention of any specific beliefs by the defendants. But the initiation ceremony distinguishes this situation from those cases involving the simple practice of Yoga in schools.... The evidence in this record— most notably the details of the initiation ceremony—suggest that a reasonable jury could find that the Transcendental Meditation training as implemented was religious in nature or at least included a required religious ceremony....

... A reasonable jury could find that Williams felt pressured to support the purportedly religious aspects of Transcendental Meditation during the initiation ceremony, when he saw various items placed around a picture of a teacher of Transcendental Meditation while the instructor spoke in a language he did not understand. It is less clear whether Williams would have felt pressured to support the instructor-led meditation in the classrooms.... [T]he Court denies the defendants' motion for summary judgment.... To the extent that Williams intended to move for summary judgment on his Establishment Clause claim ...,  the Court denies the motion. The reason is that a reasonable jury could find that there was no "captive audience," that the initiation ceremony was not religious in nature, or that Williams did not feel pressured to support any religious aspects of the program.

7th Grader Sues Over School's Hate Speech Dress Code

Suit was filed yesterday in a Massachusetts federal district court challenging the Middleborough school district's Dress Code which provides:

Clothing must not state, imply, or depict hate speech or imagery that target groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation, or any other classification.

The complaint (full text) in Morrison v. Town of Middleborough, (ED MA, filed 5/17/2023), alleges that a 7th-grader's free speech rights were violated when he was not permitted to attend classes wearing a T-shirt carrying the message, "There are only two genders". Two weeks later he came to school wearing a shirt with the message, "There are censored genders". He was also barred from wearing this shirt.  The complaint alleges in part:

101. As Defendants interpret their Speech Policy, some viewpoints on the topic of “gender identity or expression” are permitted while some viewpoints on the same topic are prohibited. In particular, speech expressing the viewpoint that there are only two genders is prohibited, while speech expressing the viewpoint that gender is fluid and is on a spectrum is permitted....

135. Defendants’ censorship of Liam’s shirts while permitting shirts and other apparel with different messages on related topics is viewpoint discrimination, which is unconstitutional in any type of forum....

153. The Due Process Clause of the Fourteenth Amendment prohibits the government from censoring speech pursuant to vague standards that grant enforcement officials unbridled discretion.

154. The arbitrary determination by school officials of what is and is not “hate speech,” what speech “targets” a specific group, or what speech is “unacceptable to community standards” violates this norm.

ADF issued a press release announcing the filing of the lawsuit.

North Carolina Legislature Overrides Veto of Abortion Law

 The North Carolina legislature last night voted to override Governor Roy Cooper's veto of Senate Bill 20 which imposes elaborate new restrictions on abortions in the state, summarized in this prior posting. 

Reuters reports on the legislature's action.

Air Force Announces Portal To Process Religious Exemption Requests

The U.S. Air Force announced last week that it has developed a Portal to streamline requests for religious accommodation filed by Air Force, Space Force, and civilian employees, as well as appeals from denials of requests. According to an Air Force official:

The service has seen an exponential increase in religious accommodation requests, and the portal offers a systemic automated solution to ensure our servicemembers and civilians are assisted in the most expeditious manner going forward.

The Air Force has been embroiled in litigation filed by service members seeking religious exemptions from the military's COVID vaccine mandate. (See prior posting.)

9th Circuit Remands Employees' Challenge to Vaccine Exemption Denial

In Keene v. City and County of San Francisco, (9th Cir., May 15, 2023), the U.S. 9th Circuit Court of Appeals reversed and remanded a decision from a California federal district court that denied preliminary relief to two city and county employees who were denied religious exemptions from CCSF's COVID vaccine mandate. The appeals court said in part:

The district court erroneously concluded that “[n]either Plaintiff has demonstrated that their religious beliefs are sincere or that those beliefs conflict with receiving the COVID-19 vaccine...."...

Beyond the district court’s factual error, its decision reflects a misunderstanding of Title VII law. A religious belief need not be consistent or rational to be protected under Title VII, and an assertion of a sincere religious belief is generally accepted.... 

The district court did not explain its conclusion that Appellants had not established sincerity beyond stating that there are “no grounds upon which to assert the mistaken conclusion that the FDA-approved vaccines . . . are . . . derived from murdered babies” and generally stating that personal preferences are not sincere religious beliefs. And CCSF offered no argument or evidence that Appellants’ beliefs are insincere. Absent any indication otherwise, it seems that the district court erroneously held that Appellants had not asserted sincere religious beliefs because their beliefs were not scientifically accurate. Remand is warranted for the district court to reevaluate Appellants’ claims applying the proper failure-to-accommodate inquiry....

Courthouse News Service reports on the decision.

DOE Updates Guidance on Prayer In Public Schools

Yesterday, the U.S. Department of Education issued an updated Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools. The Guidance document points out that the Elementary and Secondary Education Act requires the Secretary of Education to issue such guidance to state and local education agencies, and local agencies must certify that they do not have policies that deny participation in constitutionally protected prayer. The Guidance reads in part:

Teachers, school administrators, and other school employees may not encourage or discourage private prayer or other religious activity.

The Constitution does not, however, prohibit school employees themselves from engaging in private prayer during the workday where they are not acting in their official capacities and where their prayer does not result in any coercion of students. Before school or during breaks, for instance, teachers may meet with other teachers for prayer or religious study to the same extent that they may engage in other conversation or nonreligious activities. School employees may also engage in private religious expression or brief personal religious observance during such times, subject to the same neutral rules the school applies to other private conduct by its employees. Employees engaging in such expression or observance may not, however, compel, coerce, persuade, or encourage students to join in the employee's prayer or other religious activity, and a school may take reasonable measures to ensure that students are not pressured or encouraged to join in the private prayer of their teachers or coaches.

Americans United issued a press release welcoming the updated Guidance.