Court Refuses To Dismiss Constitutional Challenges To City's Civil Rights Law

In Country Mill Farms v. City of East Lansing, 2017 U.S. Dist. LEXIS 191658 (WD MI, Nov. 16, 2017), a Michigan federal district court refused to dismiss a number of plaintiff's constitutional challenges to a city's civil rights ordinance. Vendor Guidelines for East Lansing's Farmers' Market required vendors to comply with the civil rights ordinance as a general business practice. Country Mill Farms was denied a vendor permit because, while it hosts weddings at its orchard, it refuses on religious grounds to host same-sex weddings.  It announced its policy in a Facebook post.

The court allowed Country Mill to move ahead with an overbreadth challenge to a portion of the ordinance, saying in part:

The City is wrong that the Ordinance regulates only conduct. The Ordinance also regulates speech. Section 22-32 of the Code defines "harass" as including "communication which refers to an individual protected under this article." Section 22-31 prohibits harassment of any person based on a list of characteristics. And, Section 22-35(b)(2) prohibits the printing and publishing of certain statements and signs based on their content.

The court also refused to dismiss plaintiff's Free Exercise and Establishment Clause challenges (as well as an unconstitutional conditions challenge), saying in part:

Plaintiffs have alleged sufficient facts to state a plausible claim for a violation of their rights under the Free Exercise Clause. Plaintiffs have pleaded facts to support a claim that the City enacted a generally applicable and neutral policy, which was then used to target Plaintiffs' religiously-motivated conduct. The Ordinance did not apply to Plaintiffs in 2016. After the City learned that Plaintiffs would not hold same-sex weddings on their farms because of Plaintiffs' religious beliefs, the City amended the Vendor Guidelines to incorporate the neutral and generally applicable law and applied it to Plaintiffs. As pled, the City's action is a "veiled cover for targeting belief or a faith-based practice." ...

Plaintiffs have pled sufficient facts to state a plausible claim under the Establishment Clause. The facts in the complaint allow the Court to infer that the predominant purpose of the changes to the Vendor Guidelines was motivated by the disapproval of Plaintiffs' religious beliefs.

Various other challenges to the ordinance were dismissed. (See prior related posting.)

US Asks Supreme Court For Full Stay Pending Appeal of Injunction Against 3rd Travel Ban

As previously reported, a week ago the U.S. 9th Circuit Court of Appeals stayed in part the preliminary injunction issued by a Hawaii federal district court against enforcement of President Trump's third travel ban.  Yesterday, the government filed an application (full text) in the case (Trump v. State of Hawaii) seeking to have the preliminary injunction stayed completely while the case works its way through appeals to the 9th Circuit and to the Supreme Court.  According to a report from SCOTUSblog, the Justices have asked the challengers to file a response to the government's application by Nov. 28.

Court Strikes Down Health Clinic Buffer Zone

In Turco v. City of Englewood, New Jersey, (D NJ, Nov. 14, 2017), a New Jersey federal district court struck down as overbroad a city ordinance creating an 8-foot buffer zone around health care and transitional facilities.  The ordinance was a response to militant activists and aggressive protesters who congregated outside an Englewood abortion clinic. The court said in part:

Defendant created a sweeping regulation that burdens the free speech of individuals, not just in front of the Clinic, but at health care and transitional facilities citywide. To meet the narrowly-tailored requirement, Defendant must create an Ordinance that targets the exact wrong it seeks to remedy.

Liberty Counsel issued a press release announcing the decision.

Canadian Christian Couple Sues Over Alberta's Policy On Adoptions

In a lawsuit filed in Canada at the beginning of this month, an Evangelical Christian couple is challenging a decision by the Province of Alberta's Child and Family Services to refuse to approve them to adopt a child.  the refusal stemmed from the couple's Biblical views on marriage, sexuality and gender.  The complaint (full text) in C.D and N.D. v. Province of Alberta, (Q.B. AL, filed 11/1/2017), says that "Child and Family Services considered the Applicants' religious beliefs regarding sexuality a 'rejection' of children with LGBT sexual identities...."  It contends that the decision violates their rights under Canada's Charter of Rights and Freedoms. The Justice Centre for Constitutional Freedoms issued a press release announcing the filing of the lawsuit.

Public Shelter's "Blessing of the Animals" Challenged In Court

An Atheist group last week filed suit in a New Jersey federal district court challenging a county-run animal shelter's hosting for the second year in a row of a Blessing of the Animals event.  The complaint (full text) in American Atheists, Inc. v. Bergen County, (D NJ, filed 11/13/2017), objects to the use of public resources and employee time to promote and host a ritual that is performed by Franciscan clergy annually in honor of St. Francis of Assissi. Plaintiffs claim that the county has violated the Establishment Clause, the Equal Protection Clause and several provisions of the New Jersey Constitution.  American Atheists issued a press release announcing the filing of the lawsuit.

Cert. Petition Filed In Suit Over Police Investigation Interference With Prayer

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Sause v. Bauer, (cert. filed 11/17/2017).  In the case, the U.S. 10th Circuit Court of Appeals dismissed on qualified immunity grounds a suit for damages alleging that police who were investigating a noise complaint violated plaintiff's 1st Amendment rights when an officer who had come to her home ordered her to get up and stop praying. (See prior posting.)  First Liberty issued a press release announcing the filing of the petition for review.

Pro-Life Group Sues Over City's Enforcement of Sign Ordinance

A suit was filed last week in a North Carolina federal district court by an anti-abortion group which contends that the city of Charlotte acted unconstitutionally when it applied an ordinance directed at preventing installation of permanent or semi-permanent signs and flyers in the public right of way to prevent plaintiffs' display of placards. The complaint (full text) in Cities4Life, Inc. v. City of Charlotte, (WD NC, filed 11/17/2017) alleges in part:

Defendants, through their enforcement of City Code § 10-212, prohibit speakers from resting their signs on the ground while they are assembled outside of abortion facilities and thereby restrict Plaintiffs’ right to free speech on significant portions of land. This restriction does not apply to many other types of signs whose content is different from those used by Plaintiffs. Defendants thus unconstitutionally restrict Plaintiffs’ rights because of the pro-life messages their signs convey.

Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• Preyanun Steannopkao, Phramaha Boonsri Yanavuddho, Suchao Ploychum & Chamnong Kanthik, An Integration of Buddhadharma in Performing Duties of Thai Lawyers, (PSAKU International Journal of Interdisciplinary Research (PSAKUIJIR), Vol. 5, No. 2, (July-December 2016)).
• Richard Albert & Yaniv Roznai, Religion, Secularism and Limitations on Constitutional Amendment, (Edward Elgar Research Handbook on Law & Religion (Rex Ahdar, editor, 2018 Forthcoming)).
• Gautam Bhatia, Equality of Opportunity, Group Subordination, and the Directive Principles: State of Kerala vs N.M. Thomas, (November 15, 2017).
• Andrew Koppelman, Entertaining Satan: Why We Tolerate Terrorist Incitement, (Fordham Law Review, Vol. 86, No. 2, 2017).
• Timothy Zick, Restroom Use, Civil Rights, and Free Speech ‘Opportunism’, (Ohio State Law Journal, Forthcoming).
• Mohammad Fadel, Fiduciary Principles in Classical Islamic Law Systems, (Oxford Handbook of Fiduciary Law, edited by Robert Sitkoff et. al. (Forthcoming)).
• Asmat Ali Khan, Marrying Without the Consent of the Wali (a Case Study of Pakistan) Compatibility of Pakistani Family Laws with UDHR, (November 8, 2017).

From SmartCILP:

• David B. Rosengard, "Three Hots and a Cot and a Lot of Talk": Discussing Federal Rights-Based Avenues for Prisoner Access to Vegan Meals, 23 Animal Law Review 355-403 (2017).
• John Weber, Protecting Against Discrimination or Violating the Freedom of Religion? Balancing One of Americans' Most Important Liberties, [Abstract],46 Journal of Law & Education 415-424 (2017).

Trump Adds 5 Names To List of Potential Supreme Court Nominees

On Friday, just before White House Counsel Donald F. McGahn delivered the Barbara K. Olson Memorial Lecture at the Federalist Society National Lawyers Convention, the White House issued a release announcing the addition of five names to the President's list of potential Supreme Court nominees. Among the five is Amy Coney Barrett who on Oct. 31 was confirmed for a position on the 7th Circuit after controversy over her views on reproductive rights, abortion, LGBTQ rights, as well as controversy over her statement in a 1988 law review article urging Catholic judges to recuse themselves in capital cases because of Catholic teaching opposing capital punishment. (See prior posting.) Other new names on the President's list are: Britt C. Grant (Georgia Supreme Court Justice); Brett M. Kavanaugh (Judge on the D.C. Circuit);  Kevin C. Newsom (11th Circuit Judge); and Patrick Wyrick (Oklahoma Supreme Court Justice).  The Hill reports on these developments.

Recent Prisoner Free Exercise Cases

In Grief v. Quay,  (2d Cir., Nov. 13, 2017), the 2nd Circuit concluded that a district court should not have dismissed as conclusively non-religious an inmate's claim that stuffed animals are necessary for his religious practice.

In Holt v. Givens, 2017 U.S. Dist. LEXIS 186752 (ND AL, Nov. Nov. 13, 2017),  an Alabama federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 187165, Oct. 17, 2017) and dismissed an inmate's complaint that his prayer oil was seized as contraband.

In Moon v. Jordan, 2017 U.S. Dist. LEXIS 187012 (ED MO, Nov. 13, 2017), a Missouri federal district court dismissed a Muslim inmate's complaint that he was not provided an Arabic language Qur'an, a clock for prayer time, a prayer rug, a bottle for cleaning himself after using the restroom, televised Jumu'ah services, or an Imam, and was not permitted to wear a Kufi.

In Bynum v. Poole, 2017 U.S. Dist. LEXIS 187453 (MD NC, No. 13, 2017), a North Carolina federal magistrate judge recommended dismissing a Muslim inmate's complaint that Jumu'ah services were cancelled on one Friday.

In Hewitt v. Johnson, 2017 U.S. Dist. LEXIS 187649 (D SC, Nov. 14, 2017), a South Carolina federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 187901, Oct. 26, 2017) and dismissed on qualified immunity grounds denial of an inmate's request for a kosher diet because authorities found his professed belief insincere.

In Muslim v. Carmichael, 2017 U.S. Dist. LEXIS 188522 (WD NC, Nov. 14, 2017), a North Carolina federal district court allowed a Muslim inmate to move ahead wit his damage claim for denial of a Kosher diet and failure to provide an Imam to lead prayer services.

In Johnson v. Fields, 2017 U.S. Dist. LEXIS 189448 (WD NC, Nov. 16, 2017), a North Carolina federal district court upheld disciplinary sanctions that deprived an inmate of his Bible for 24 days.

In Meza v. California Department of Corrections and Rehabilitation, 2017 U.S. Dist. LEXIS 189996 (ED CA, Nov. 15, 2017), a California federal magistrate judge recommended dismissing a Catholic inmate's complaint that because of his alleged gang affiliation he was not allowed to attend his brother's funeral off prison grounds.

In Shabazz v. Secretary Department of Corrections, 2017 U.S. Dist. LEXIS 190725 (MD FL, Nov. 17, 2017), a Florida federal district court issued a temporary restraining order preventing prison authorities from requiring an inmate to shave his beard that he wears for religious reasons.

Sacristan's Suit Dismissed On Ministerial Exception Grounds

In Vosney v. Archdiocese of Hartford, 2017 Conn. Super. LEXIS 4633 (CT Super., Oct. 13, 2017), a Connecticut trial court dismissed on "ministerial exception" grounds a suit by a former administrative assistant and sacristan of a Catholic Church in Connecticut. Plaintiff had claimed that his hours of employment were severely reduced as retaliation for his opposing discriminatory employment practices.

Head of DHS Faith Based Office Resigns Over Anti-Muslim, Anti-Black Statements

CNN reports that Rev. Jamie Johnson resigned yesterday as head of the Department of Homeland Security's Center for Faith-Based & Neighborhood Partnerships.  His resignation stems from inflammatory statements about Blacks and Muslims which Johnson made in radio appearances in years prior to his appointment to his position at DHS.  For example, in one appearance he said in part:

I agree with Dinesh D'Souza, your friend and mine, who says really all that Islam has ever given us is oil and dead bodies over the last millennia and a half.

Court Upholds Large Penalty Against Jehovah's Witnesses For Failure To Produce Documents

In Padron v. Watchtower Bible and Tract Society of New York, Inc., (CA App., Nov. 9, 2017), a California appellate court upheld a $4000 per day penalty against a Jehovah's Witness parent body for its refusal  to comply with a litigation discovery request.  At issue is a litigant's attempt to obtain copies of responses to a letter sent to elders around the country seeking names of congregation leaders who are known to have been guilty of child molestation in the past.  The total amount now due is some $2 million.  Reveal reports on the decision.

Elaborate Museum of The Bible Opens In D.C. Today

Washington Post reports that the new $500 million privately-funded Museum of the Bible opens in Washington, D.C. today.  The museum has been created by the Green family, owners of the Hobby Lobby retail chain.  Located on a site near the Mall in southwest Washington, the Museum focuses the importance of the Bible, Biblical history and the place of the Bible in U.S. history.  The Post says that the Museum "will set a new standard" for fusion of entertainment and education. It summarizes:

The Bible Museum has come to town, in all its technical splendor, bearing with it something that most historians and museum professionals may have thought was long discredited: the "master narrative" idea of history, that there is one sweeping human story that needs to be told, a story that is still unfolding and carrying us along with it. It tells this seductive story well, in many places with factual accuracy, and always with an eye to clarity and entertainment. It is an exciting idea, and an enormously powerful tool for making sense of the world.

Unless, of course, you don’t believe it.

Former Church Members Question Settlement of Suit Against Child Protection Officials

Former members of the North Carolina-based World of Faith Fellowship (WOFF) will ask the North Carolina attorney general to seek review a settlement agreement reached 12 years ago in a suit against the Rutherford County Department of Social Services by 12 members of WOFF. The plaintiffs claimed they were being targeted by Social Services because of their religion. AP now reports:

An ongoing Associated Press investigation has exposed years of abuse in the evangelical sect, with dozens of former members saying congregants are regularly beaten, punched and choked in an effort to "purify" sinners.

... [T]he state had opposed the agreement between Word of Faith and the county social services agency because it contains stipulations that limit such investigative tactics as what can trigger an abuse inquiry and how social workers can question minors....

Several former members have told the AP that [child protection director] Carroll’s department has either cited the settlement in refusing to act on child abuse allegations or given Word of Faith members advance notice of investigations.

Suit Challenges Tennessee's Therapist Bill

A suit was filed last week in a Tennessee federal district court challenging the constitutionality of  Tennessee's "Therapist Bill" (TN Code 63-22-302) that provides:

No counselor or therapist providing counseling or therapy services shall be required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with the sincerely held principles of the counselor or therapist; provided, that the counselor or therapist coordinates a referral of the client to another counselor or therapist who will provide the counseling or therapy.

The complaint (full text) in Copas v. Haslam, (MD TN, filed 11/13/2017) contends that, despite the broad wording of the section:

The Tennessee Legislature intended for the Bill solely to allow religious counselors to discriminate against the LGBT community.

It asserts that the law violates the Equal Protection Clause and the Establishment Clause.  JURIST reports on the lawsuit.

OSCE Holds Hearings On Religious Freedom Violations

The U.S. Helsinki Commission (the Organization for Security and Cooperation in Europe) yesterday held a briefing at the Russell Senate Office Building on Religious Freedom Violations in the OSCE.  A video of the full briefing is available on the Commission's website.

USCIRF Says State Department Is Late In Designating "Countries of Particular Concern"

The U.S. Commission on International Religious Freedom issued a press release on Tuesday criticizing the State Department for failing to meet the statutory deadline for designating "countries of particular concern".  The International Religious Freedom Act (22 USC 6442 as amended in 2016) requires the President to designate countries of particular concern-- those that are the most egregious violators of religious freedom-- within 90 days of the issuance of the State Department's Annual Report on International Religious Freedom.  The State Department issued this year's Annual Report on Aug. 15. (See prior posting.)

Australian Government Survey By Mail Favors Same-Sex Marriage

The Australian Bureau of Statistics yesterday released the results of its national postal survey on whether the law should be changed to allow same-sex marriage.  (Press release; full survey results).  61.6% of respondents voted "yes"; 38.4% voted "no".  The press release expanded on the data:

All states and territories recorded a majority Yes response. Of the 150 Federal Electoral Divisions, 133 recorded a majority Yes response, and 17 Federal Electoral Divisions recorded a majority No response.

12,727,920 million people participated in the voluntary survey – representing 79.5 per cent of the more than 16 million eligible Australians.

CNN reports that celebrations broke out across Australia after the results were announced.  (See prior related posting.)

Bible In Schools Case Dismissed On Standing and Ripeness Grounds

In Freedom From Religion Foundation v. Mercer County board of Education, (SD WV, Nov. 14, 2017), a West Virginia federal district court dismissed on standing and ripeness grounds a lawsuit challenging a Bible in Schools class offered for over 70 years in Mercer County elementary and middle schools.  Shortly after the lawsuit challenging the program was filed, the county Board of Education voted to suspend teaching of the course for a least a year in order to undertake a review and modification of the curriculum.  While one plaintiff who transferred to another school was found to lack standing, other plaintiffs had standing.  The court nevertheless dismissed because:

the Bible in the Schools program of which plaintiffs’ complain is not currently offered nor will it be offered in the future. Furthermore, should a Bible in the Schools curriculum reemerge, the court has no information before it to determine the content of such a class.... Therefore, until the Bible in the Schools curriculum that Jamie Doe will actually encounter "is presented in clean-cut and concrete form,"... this action is not ripe for judicial review.

FFRF issued a press release announcing the decision. First Liberty also issued a press release on the decision.