Religion Clause

Sunday, September 24, 2023

Friday, September 22, 2023

Expanded Protection of Utah Lands Did Not Violate Establishment Clause

In Huck v. United States, (D UT, Sept. 21, 2023), a Utah federal district court rejected Establishment Clause, equal protection, due process and other challenges to Congress' 2019 designation of certain public lands in Utah as wilderness areas. The designation resulted in the lands being subject to more stringent use restrictions, including a ban on motor vehicles. Plaintiffs alleged that the designation was done to support Earth-religions and their beliefs regarding the ‘sacredness’ of public lands, in violation of the Establishment Clause. The court said in part:

Given the recency of the Kennedy v. Bremerton School District decision, there is limited case law interpreting and applying the Supreme Court’s new [Establishment Clause] standard....

Recognizing these are relatively unchartered waters, the court considers Plaintiffs’ challenge with an eye toward the historical practice and understanding of the Establishment Clause and federal public lands management. While the concept of designated wilderness areas and motor vehicles might have seemed outlandish to the Founding Fathers, there is substantial legal authority supporting the federal government’s historically broad authority to designate public lands and restrict the public’s access to them. These actions, without more, do not raise the specter of government coercion of religious practices or observances....

Similarly, Plaintiffs have not plausibly alleged BLM’s motor vehicle restrictions violate “governmental neutrality between religion and religion, and between religion and nonreligion.”

The court also rejected plaintiffs' equal protection claim, saying in part:

Though Plaintiffs speculate that “[t]he BLM (as well as other . . . agencies) [conspired] with Earth-religionists [to] . . . deprive the aged, disabled or handicapped . . . from being able to access and travel upon many of the public lands,” these conclusory allegations—or speculations—fall short of satisfying Plaintiffs’ burden of alleging that the challenged actions were driven by discriminatory intent. On the contrary, Plaintiffs stress that the Dingell Act and motor vehicle restrictions were the result of the Earth-religionists’ efforts to “preserve and protect ‘Gaia’ or ‘Mother Earth,’” rather than an attempt to hinder the elderly or disabled.

Physician Assistant Can Move Ahead with Challenges to Her Dismissal for Her Views on Gender Identity

In Kloosterman v. Metropolitan Hospital, (WD MI, Sept. 20, 2023), a Michigan federal district court refused to dismiss a physician assistant's free exercise, equal protection and Title VII religious discrimination and failure to accommodate claims against a hospital that dismissed her for her unwillingness, on religious grounds, to refer gender transitioning patients for various drugs and procedures, or to use pronouns that do not correspond to a patient’s biological sex. Plaintiff asserted that as a Christian she believes that one’s sex is ordained by God and that one should not attempt to erase or to alter his or her sex.

The court concluded in part that:

Plaintiff plausibly alleges that Defendants’ hostility toward her religious beliefs motivated them to terminate her employment.

The court however dismissed certain other claims by plaintiff, including her free speech claim.

First Liberty Institute issued a press release announcing the decision.

4th Circuit Hears Oral Arguments on Catholic School's Firing of Teacher Who Entered Same-Sex Marriage

The U.S. 4th Circuit Court of Appeals on Wednesday heard oral arguments (audio of full oral arguments) in Billard v. Charlotte Catholic High School. In the case, a North Carolina federal district court held that a Catholic high school is liable under Title VII of the 1964 Civil Rights Act for firing a substitute drama teacher after he entered a same-sex marriage and stated on Facebook his disagreement with Catholic teaching on marriage. (See prior posting.) As reported by Reuters, during oral argument the judges pressed the parties on the applicability of the ministerial exception doctrine, even though the school had stipulated that it would not raise the doctrine as a defense in order to avoid protracted discovery on the teacher's job duties.

New Decisions on Covid Vaccine Religious Objection Claims

Decisions have been handed down in the past few days in several cases in which employees who were denied a religious exemption or accommodation from an employer's Covid vaccine mandate have sued:

In Dicapua v. City of New York, (Richmond Cty. NY Sup. Ct., Sept 18, 2923), 16 employees of the Department of Education brought suit. A New York state trial court held that ten of the employees should have been granted a religious exemption, saying in part:

This Court sees no rational basis for not allowing unvaccinated classroom teachers in amongst an admitted population of primarily unvaccinated students.

In Mora v. New York State Unified Court System, (SD NY, Sept. 19, 2023), a New York federal district court dismissed a suit by a Poughkeepsie City Court Judge, saying in part:

Here, the Vaccine Mandate has been repealed, and plaintiff has been reinstated to his full in-person duties. Therefore, plaintiff has not alleged an ongoing violation of federal law, or a need for prospective relief...

Damage claims were dismissed in part on the basis of 11th Amendment immunity and in part because Title VII does not apply to government appointees on the policymaking level. His Free Exercise claim was denied because the vaccine mandate was a neutral, generally applicable rule. Retaliation and equal protection claims were also rejected.

In Trusov v. Oregon Health & Science University, (D OR, Sept. 20, 2023), an Oregon federal district court dismissed some of the claims brought by a registered nurse who was denied a religious accommodation, and deferred consideration of another of her claims. The court said in part:

Regarding Defendants’ challenge to Plaintiff’s First Claim, alleging religious discrimination in employment, the Court finds that OHSU’s arguments about undue hardship must await a motion for summary judgment, at which time the Court may consider matters outside the pleadings and, if necessary, motions to exclude expert testimony. Regarding Defendants’ challenge to Plaintiff’s second claim brought under § 1983 against the individual Defendants, the Court dismisses that claim under the doctrine of qualified immunity. Regarding, Defendants’ challenge to Plaintiff’s request for prospective declaratory relief, the Court dismisses that request for lack of standing.

In Mathisen v. Oregon Health & Science University, (D OR, Sept. 19, 2023), an Oregon federal district court rejected claims brought by a research laboratory manager who was denied a religious exemption as well as a medical exemption. The court said in part:

In support of their motion to dismiss, Defendants argue that Plaintiff’s Title VII claim fails because OHSU offered to accommodate Plaintiff’s religious beliefs by offering an accommodation—masking—to which Plaintiff has alleged no objection based on religion....

Plaintiff’s assertion that masking would not promote safety is a secular objection, not a religious one. That objection, therefore, does not establish that the offered accommodation to her religious objection was not reasonable for purposes of her claim of religious discrimination.

Other of Plaintiff's claims were dismissed on qualified immunity and standing grounds.

Thursday, September 21, 2023

Ohio Supreme Court Upholds Most of Ballot Board's Description of Reproductive Rights Initiative

In State ex. rel. Ohioans United for Reproductive Rights v. Ohio Ballot Board, (OH Sup. Ct., Sept. 19, 2023), the Ohio Supreme Court, in a per curiam opinion concurred in fully by Justice Fischer and (with a short opinion) by Donnelly, upheld most of the ballot language drafted by the Ohio Ballot Board to describe a Reproductive Freedom initiative that will be on the November ballot. The Board substituted its description for the proponent's request that the full text of the amendment appear on the ballot. (See prior related posting.) The majority of the Court disapproved only the Ballot Board's substitution of "citizens of the State of Ohio" for the term "State" used in the proposed amendment. One of the Ballot Board's changes approved by the majority was its substitution of the term "unborn child" for the term "fetus" in the text of the proposed amendment. The majority said in part:

According to relators, “[o]ne’s judgment about the developmental stage at which the ethical status of ‘unborn child’ attaches has obvious implications for whether and how one believes abortion should be regulated.” Relators argue that the terms “fetus” or “fetal viability,” which appear in the proposed amendment’s text, are scientifically accurate and do not carry the same moral judgment as “unborn child.”

We reject relators’ argument. Importantly, relators do not argue that the term “unborn child” is factually inaccurate. To the contrary, their argument asserts that “unborn child” is a divisive term that elicits a moral judgment whereas the terms “fetus” and “fetal viability” are more neutral and scientific. But this argument does not establish that the ballot board’s language constitutes improper persuasion.

Justice Stewart and Justice Brunner each filed an opinion finding all of the Ballot Board's language unacceptable. Justice Brunner said in part:

A majority of respondent Ohio Ballot Board’s members ... obfuscated the actual language of the proposed state constitutional amendment by substituting their own language and creating out of whole cloth a veil of deceit and bias in their desire to impose their views on Ohio voters about what they think is the substance of the proposed amendment. And they did this by completely recrafting simple and straightforward amendment language into a version that contains more words than the amendment itself. The evidence in the record makes clear that it was their intent to use their positions on the board to influence the outcome of the election with the ballot language the board certified for the proposed amendment.

Justice Deters, in an opinion concurred in by Chief Justice Kennedy and Justice DeWine, concluded that they would have upheld all of the Ballot Board's language, saying that it "does not mislead, deceive, or defraud voters."

NBC News reports on the decision.

Suit Says High Schoolers Deceived Into Attending Christian Religious Event

Suit was filed this week in a Louisiana federal district court by two plaintiffs suing on behalf of themselves and their high-school age daughters alleging that the Baton Rouge school board and its superintendent, along with a Christian youth organization, in 2022 created a religious "Day of Hope" event that was falsely promoted to public school students and their parents as a college and career fair. The complaint (full text) in Roe v. East Baton Rouge Parish School Board, (MD LA, filed 9/19/2023), alleges in part:

When students, parents, and other volunteers arrived for the “Day of Hope” event ..., it very quickly became evident to them that the event was nothing like what had been advertised. The event immediately took the form of a Christian church service, with speakers and presenters praying and making repeated, overt appeals to Jesus and God.....

Later that morning, students were segregated by gender.... [P]resenters and facilitators of the event acted with hostility toward transgender and gender non-binary students, ... forcing them into either the male or female segregated gender group based on their outward appearance and without their consent....

While the boys competed in physical activity contests for prize money, girls were graphically lectured by pastors and other religious figures about virginity, rape, abuse, and suicide and were even told to “forgive” their rapists and abusers....

Intimidation and harassment of LGBTQ+ students at this church event were likewise rampant....

The suit alleges claims under the Establishment Clause as well as various civil rights and state law violations. BRProud reports on the lawsuit.

EEOC Sues Over Refusal of Religious Exemption from Vaccine Mandate For Remote-Working Emloyee

The EEOC announced yesterday that it has filed suit against the healthcare provider United Healthcare Services for refusing to grant a religious exemption from the company's Covid vaccine mandate to an employee whose duties were performed entirely remotely. The EEOC said in part:

“Neither healthcare providers nor COVID-19 vaccination requirements are excepted from Title VII’s protections against religious discrimination.”

Wednesday, September 20, 2023

European Court Says Homophobic Posting Was Not Protected by Human Rights Convention

In Lenis v. Greece, (ECHR, Aug. 31, 2023), the European Court of Human Rights declared inadmissible an application filed by a former Metropolitan of the Greek Orthodox Church who contended that his Freedom of Expression protected by Article 10 of the European Convention on Human Rights was infringed when he was convicted by Greek courts of public incitement to violence or hatred against people because of their sexual orientation. The European Court pointed out that:

Speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10 by virtue of Article 17 of the Convention.... The decisive points when assessing whether statements, verbal or non-verbal, are removed from the protection of Article 10 by Article 17 are whether the statements are directed against the Convention’s underlying values....

At issue was a homophobic article that the Metropolitan posted on his personal blog as Parliament was about to debate civil unions for same-sex couples. He titled the article "The Scum of Society Have Reared Their Heads! Let's Be Honest! Spit on Them". The Court said in part:

54. ... [C]riticism of certain lifestyles on moral or religious grounds is not in itself exempt from protection under Article 10 of the Convention. However, when the impugned remarks go as far as denying LGBTI people their human nature, as in the present case, and are coupled with incitement to violence, then engagement of Article 17 of the Convention should be considered.

55. ... [T]aking account firstly of the nature of the disputed article, which included incitement to violence and dehumanising hate speech ...; secondly, of the applicant’s position as a senior official of the Church who could influence many people; thirdly, of the fact that the views expressed in the article were disseminated to a wide audience through the Internet; and, fourthly, of the fact that they related directly to an issue which is of high importance in modern European society – protection of people’s dignity and human value irrespective of their sexual orientation – the applicant’s complaint does not, in the light of Article 17 of the Convention, attract the protection afforded by Article 10.

EEOC Sues Over Refusal of Religious Accommodation from Vaccine Mandate

The EEOC announced yesterday that it has filed a Title VII suit against Arkansas-based Hank’s Furniture, Inc. for refusing to grant an employee a religious exemption from the company's Covid vaccine mandate. According to the EEOC:

When the Pensacola assistant store manager requested an accommodation exempting her from the requirement due to her Christian beliefs, her store manager and immediate supervisor informed her that the company would strip her of her management position if she refused to comply with the policy, no matter the reason. Despite her verbal and written requests for a religious accommodation, which Hank’s Furniture could have honored without undue hardship, the EEOC says, the company denied her requests and terminated her employment.

Denying Inmate Permission to Marry Was RFRA Violation

In Davis v. Wigen, (3d Cir., Sept. 19, 2023), the U.S. 3rd Circuit Court of Appeals reversed a district court's dismissal of a RFRA claim brought by a former federal inmate and his fiancée. The suit was brought against a private prison that primarily houses alien inmates claiming that the prison denied all inmate marriage requests, even when the inmate met the criteria set out in Bureau of Prison policies for approval of the request. The court, finding that plaintiffs adequately alleged that the denials imposed a substantial burden on religious exercise, said in part:

The District Court dismissed Plaintiffs’ RFRA claim because they failed to allege that Defendants pressured Plaintiffs to either refrain from conduct that their faith prescribed or participate in conduct that their faith prohibited.... Because neither Christian tradition nor doctrine requires adherents to marry, Defendants argue that the denial of Plaintiffs’ marriage request did not cause them to violate any religious precept or belief....

Here, Plaintiffs desired to marry because marriage “had profound religious significance for them” and because they “viewed their marriage as an expression of” their Christian faith.... Although marriage may not be required of every Christian, Plaintiffs allege that their desire to marry has significant religious meaning for them. They contend that marriage is an expression of their faith. By denying Plaintiffs’ marriage request, Defendants caused them to refrain from such religious expression and thereby “violate their beliefs.”...

... While not every government-imposed hurdle to the practice of sincere faith-based conduct will be a substantial burden, the more proximate the government action is to an outright bar, the more likely it is a substantial burden. We conclude, therefore, that Plaintiffs have adequately alleged a substantial burden on their religious beliefs.

Tuesday, September 19, 2023

Suit Challenges Federal Terrorist Watchlist

Suit was filed yesterday in a Massachusetts federal district court challenging the federal government's terrorist watchlist system. In a 185-page complaint, 12 Muslim plaintiffs sued 29 federal officials claiming violations of the 4th and 5th Amendments, the Religious Freedom Restoration Act and the Administrative Procedure Act. The complaint (full text) in Khairullah v. Garland, (D MA, filed 9/18/2023), alleges in part:

3. Plaintiffs were placed on the federal terrorist watchlist by Defendants’ interagency watchlisting system, which evaluates individuals for inclusion under a vague, rubberstamp-at-best standard that is satisfied nearly 100% of the time. Plaintiffs were not notified of their nomination to or inclusion in the watchlist. They have no idea why the government considers them worthy of permanent suspicion, have no opportunity to dispute the government’s decision or confront the supposedly derogatory information on which their placement is based....

5. The stigma and harm of watchlisting placement lasts a lifetime, even if Defendants eventually ... remove an individual from the watchlist. Several agencies retain records of past watchlist status and continue to use that historic status to deny formerly-listed individuals ... security clearances, employment, access to government buildings, and other licenses and permissions....

9. ... Over 98% of the names on leaked portions of the watchlist from 2019 are identifiably Muslim.... Defendants consider origin from Muslim-majority countries, travel to Muslim-majority countries, attending mosques and Islamic events, zakat donations to Muslim charities, the wearing of typical Muslim dress, Muslim-sounding names, the frequency of Muslim prayer, adherence to Islamic religious practices, Islamic religious study, the transfer of money to individuals residing in Muslim-majority countries, affiliations with Muslim organizations, and associations with Muslims in the United States or abroad to be suspicious, and routinely nominate Muslims to the watchlist on the basis of those characteristics and activities....

12. Defendants create, maintain, administer, and use the watchlisting system without congressional approval and oversight, targeting Plaintiffs and thousands of other American Muslims in the shadowy corners of federal agency power.

CAIR announced its filing of the lawsuit as well as the release of its 2023 Muslim Community Travel Discrimination Survey. VOA also reports on the lawsuit.

Prof's Suit Over Display of Prophet Muhammad Paintings Will Move Ahead In Federal Court On Religious Discrimination Claim

In López Prater v. Trustees of Hamline University of Minnesota, (D MN, Sept. 15, 2023), a Minnesota federal district court upheld defendant's removal to federal court of a suit initially filed against it in state court by an Adjunct Art Instructor at Hamline University whose teaching contract was not renewed after she showed slides of two classic paintings of the Prophet Muhammad in her World Art class. (See prior posting.) The court held that because many of plaintiff's allegations involve matters covered by the collective bargaining agreement, her state law claims are pre-empted by §301(a) of the federal Labor-Management Relations Act that creates a federal cause of action for "[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce."

The court went on to dismiss several of plaintiff's claims, but refused to dismiss her claim under the Minnesota Human Rights Act for religious discrimination, saying in part:

Contrary to Hamline’s position, the Court finds that Ms. López Prater plausibly alleges that Hamline discriminated against her because she was not a Muslim or did not conform to a belief that certain Muslims share....

Ms. López Prater maintains that Hamline would not have labeled the act of showing the images “Islamophobic” if she were Muslim....

... [C]aselaw recognizes that an employer can discriminate against an employee if it acts on the preference of third parties such as customers or clients.... Therefore, Ms. López Prater alleging that Hamline discriminated against her by acting on the preferences of certain Muslim students and staff members is sufficient at this stage.

The court however dismissed plaintiff's reprisal claim under the Minnesota Human Rights Act, as well as her claims for defamation, intentional infliction of emotional distress and her claims under the Minnesota Whistleblower Act. Volokh Conspiracy also reports on the decision.

Monday, September 18, 2023

Friday, September 15, 2023

President Sends Rosh Hashanah Greetings

The White House today posted a Rosh Hashanah Statement from the President saying in part:

I’ve always believed that the message of Rosh Hashanah is universal. As Americans, the power lies within each of us to make our country more free and fair, to transform the story of our time, and to heal the soul of our nation.

Throughout the High Holidays and in the year ahead, let us summon the courage to reflect on who we are and extend compassion, love, and kindness to all. Let us celebrate and protect generations of Jewish Americans whose values, culture, and contributions have shaped our character as a nation, and enriched every part of American life. And let us remember the common values that bind us together as fellow Americans.

Jill and I extend our warmest wishes to all those celebrating Rosh Hashanah in the United States, Israel, and around the world.

Rosh Hashanah begins at sundown this evening.

Teachers Get Religious Exemption from School Policy Barring Disclosure to Parents of Gender Identity Changes

In Mirabelli v. Olson, (SD CA, Sept. 14, 2023), a California federal district court granted a preliminary injunction prohibiting the Escondido Union School District from taking any adverse employment action against two teachers who have religious objections to the school district's policy of faculty confidentiality when communicating with parents about a student's change in gender identity. The court said in part:

The result of the new EUSD policy is that a teacher ordinarily may not disclose to a parent the fact that a student identifies as a new gender, or wants to be addressed by a new name or new pronouns during the school day – names, genders, or pronouns that are different from the birth name and birth gender of the student. Under the policy at issue, accurate communication with parents is permitted only if the child first gives its consent to the school....

The plaintiffs in this action are two experienced, well-qualified, teachers. The teachers maintain sincere religious beliefs that communications with a parent about a student should be accurate; communications should not be calculated to deceive or mislead a student’s parent....

... Mirabelli believes that the relationship between parents and children is an inherently sacred and life-long bond, ordained by God, in which the parents have the ultimate right and responsibility to care for and guide their children..... In a similar vein, West believes that the relationship between parents and their child is created by God with the intent that the parents have the ultimate responsibility to raise and guide their child. Both Mirabelli and West believe that God forbids lying and deceit...

EUSD contends that the government purpose of protecting gender diverse students from (an undefined) harm is a compelling governmental interest and the policy of non-disclosure to parents is narrowly tailored.... This argument is unconvincing. First, both the Ninth Circuit and the Supreme Court have found overly broad formulations of compelling government interests unavailing.... Second, keeping parents uninformed and unaware of significant events that beg for medical and psychological experts to evaluate a child, like hiding a gym student’s soccer concussion, is precisely the type of inaction that is likely to cause greater harm and is not narrowly tailored. ....

In the end, Mirabelli and West face an unlawful choice along the lines of: “lose your faith and keep your job, or keep your faith and lose your job.”... The only meaningful justification the District offers for its insistence that the plaintiffs not reveal to parents gender information about their own children rests on a mistaken view that the District bears a duty to place a child’s right to privacy above, and in derogation of, the rights of a child’s parents....

[Thanks to Jeffrey Trissell for the lead.]

Kim Davis Assessed $100K Damages In One Case, $0 in Another

Last year, in a long-running case, a Kentucky federal district court held that Rowan County Clerk Kim Davis violated the constitutional rights of two same-sex couples when she refused, on religious grounds, to issue them marriage licenses. The court said that damages should be assessed by a jury. (See prior posting.) That case, along with another making similar claims, were recently tired in parallel before two separate juries. In one of the cases-- Yates v. Davis -- the jury yesterday awarded zero damages. In a second case-- Emold v. Davis-- a different jury awarded $100,000 damages. Liberty Counsel says the decision will be appealed. USA Today reports on the cases.

Suit Challenges Adoption of Ethnic Studies Courses That Contain Anti-Jewish Materials

Suit was filed last week in a California state trial court by several Jewish groups who contend that the ethnic studies curriculum adopted by the Santa Ana Unified School District Board of Education includes antisemitic and anti-Israel content. The complaint (full text) in Louis D. Brandeis Center for Human Rights Under Law v. Santa Ana Unified School District Board of Education, (CA Super. Ct., filed 9/8/2023), alleges violations of California's open meeting law ("Brown Act") that prevented adequate participation in school board meetings by members of the Jewish community. The complaint alleges both inadequate notice of meetings and harassment during the meetings. The complaint alleges in part:

Comments made by members of the public during the May 23, 2023 meeting included classic antisemitic tropes as well as threatening and violent language against Jews and Israelis. Furthermore, audience members hissed as the names of Jewish attendees were called, applause broke out in response to antisemitic slurs, and during a presentation by two Jewish high school students, Board meeting attendees shouted, “you’re racists” and “you’re killers.” A Jewish student reported being followed to her car and harassed by a meeting attendee, and that SAUSD’s security was unable to provide sufficient protection or support.

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

Thursday, September 14, 2023

9th Circuit En Banc: California School District Must Recognize Fellowship of Christian Athletes Clubs

In Fellowship of Christian Athletes v. San Jose Unified School District board of Education, (9th Cir., Sept. 13, 2023), the U.S. 9th Circuit Court of Appeals sitting en banc, in a set of opinions spanning 134 pages, held that Fellowship of Christian Athletes (FCA) is entitled to a preliminary injunction requiring the school district to restore recognition to FCA chapters as student clubs. Because FCA requires its officers to affirm a Statement of Faith and abide by a sexual purity policy, i.e. because a homosexual student could not be an officer of FCA, the District had revoked FCA's recognition. The court said in part:

While it cannot be overstated that anti-discrimination policies certainly serve worthy causes—particularly within the context of a school setting where students are often finding themselves—those policies may not themselves be utilized in a manner that transgresses or supersedes the government’s constitutional commitment to be steadfastly neutral to religion. Under the First Amendment’s protection of free exercise of religion and free speech, the government may not “single out” religious groups “for special disfavor” compared to similar secular groups....

The District, rather than treating FCA like comparable secular student groups whose membership was limited based on criteria including sex, race, ethnicity, and gender identity, penalized it based on its religious beliefs. Because the Constitution prohibits such a double standard—even in the absence of any motive to do so—we reverse the district court’s denial of FCA’s motion for a preliminary injunction....

Plaintiffs are likely to succeed on their Free Exercise claims because the District’s policies are not neutral and generally applicable and religious animus infects the District’s decision making.

Judge Forrest filed a concurring opinion contending that the case should be seen as a free-speech care more than a religious freedom case.

Judge Smith filed an opinion concurring in part and dissenting in part, with two other judges partially joining his opinion. Judge Sung filed an opinion concurring in part and dissenting in part. Chief Judge Murguia filed a dissenting opinion, joined in part by Judge Sung.

National Review reports on the decision.

Wednesday, September 13, 2023

Plaintiffs Must Seek Narrower Relief Against Restrictions on LGBTQ Books in Children's Section of Library

In Virden v. Crawford County, Arkansas, (WD AR, Sept. 12, 2023), the court denied plaintiffs' request for a preliminary injunction because the proposed injunction was too broad, but left open the possibility of a narrower injunction later on. The court described the dispute:

According to Plaintiffs’ amended complaint, in late 2022 or early 2023 the Crawford County Library System implemented a policy under which its library branches must remove from their children’s sections all books containing LGBTQ themes, affix a prominent color label to those books, and place them in a newly-created section called the “social section.” Plaintiffs allege this policy was imposed on the Library System by the Crawford County Quorum Court in response to political pressure from constituents who objected, at least partly on religious grounds, to the presence of these books in the children’s section.

Plaintiffs claimed that this policy violates the Establishment Clause as well as their 1st Amendment free speech right. The court said in part:

First, with respect to the Establishment Clause claim, it must be noted that—as Defendants acknowledge—there is little useful precedent to guide this Court’s analysis. The United States Supreme Court’s most recent guidance on such claims amounts to little more than the extremely general and abstract direction that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’” Kennedy v. Bremerton Sch. Dist..... In the face of this instruction, the County resorts to arguing that book banning and censorship, for reasons both religious and otherwise, have a centuries-long history in America and the broader Western world....

Neither side’s argument regarding the Establishment Clause claim is satisfactory. Plaintiffs’ argument simply sidesteps the “historical practices and understandings” analysis altogether. But the County’s argument, which is essentially that the Establishment Clause does not prohibit state-sponsored religious viewpoint discrimination because state actors have been violating the Free Speech Clause for centuries, seems out of step with the Kennedy Court’s admonition that the First Amendment’s Establishment, Free-Exercise, and Free-Speech Clauses “have complementary purposes, not warring ones where one Clause is always sure to prevail over the others.”....

The court found that plaintiffs had alleged sufficient facts to avoid dismissal of their claim that their 1st Amendment right to receive information had been infringed. However, it refused to enter a preliminary injunction requiring the library to return to its prior procedures for classifying and processing books, saying in part:

... Plaintiffs’ proposals would essentially freeze in perpetuity the Library’s method for processing all types of books—not only children’s books relating to LGBTQ topics. The Court does not see any reason, on the record before it, why it should curtail the Library’s discretion in processing books on such disparate topics as caring for houseplants, playing chess, or mystery novels. Furthermore, the requested injunctions are so vague and general that they could potentially prevent the Library from altering these processes even for reasons that could be perfectly benign, prudent, and constitutionally inoffensive.