Washington's Work-Study Program Challenged Over Non-Sectarian Employer Requirement

A suit was filed last week in federal district court in the state of Washington challenging Washington's structuring of its Work-Study program.  The Program provides financial aid to college students by paying part of a student's salary when the student is working for a participating employer, usually in a field related to the student's studies. Eligible employers, and jobs themselves, must be non-sectarian.  The complaint (full text) in Summit Christian Academy v. Meotti, (WD WA, filed 8/14/2018) contends that excluding religious employers and sectarian work violates the free exercise clause, the equal protection clause and the Establishment Clause. Institute for Justice issued a press release announcing the filing of the lawsuit.

Suit Challenges Exclusion of Sectarian Schools From Maine's High School Tuition Program

In Maine, small school districts that do not operate their own high schools or contract with a specific school for educational purposes, pay tuition for residents to attend a high school elsewhere in the state.  However state law bars paying tuition for students to attend sectarian schools.  On Monday a suit was filed challenging that exclusion.  The complaint (full text) in Carson v. Hasson, (D ME, filed 8/21/2018), alleges that this exclusion violates the 1st and 14th Amendments.  In a press release announcing the filing of the lawsuit, First Liberty described the claims:

By singling out religious schools, and religious schools only, for discrimination, Maine violates the religious freedom and equal protection guarantees of the U.S. Constitution. As the U.S. Supreme Court’s Chief Justice John Roberts wrote for a 7-2 majority in last year’s Trinity Lutheran Church v. Comer decision, excluding a church “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution…and cannot stand.” Armed with this recent decision, IJ and FLI’s clients intend to vindicate the principle that government programs cannot discriminate against religion.

Neither Side Gets Summary Judgment In Hawaii Religious Zoning Dispute

In Spirit of Aloha Temple v. County of Maui, (D HI, July 20, 2018), a Hawaii federal district court denied summary judgment motions filed by both parties in a RLUIPA lawsuit challenging denial of a special use permit to build a church and hold religious events (particularly weddings) on land zoned for agricultural use. the court held that significant factual questions remain to be resolved as to the Temple's substantial burden claim, religious discrimination and equal terms claims, as well as its 1st and 14th Amendment assertions. The Temple promotes the practice of "Integral Yoga."

Boston Sued Over Refusal To Allow Christian Flag On Public Flag Pole

A suit was filed last week in Massachusetts federal district court against the city of Boston by Camp Constitution, a non-profit organization whose purposes include enhancing understanding of the United States' Judeo-Christian moral heritage.  The complaint (full text) in Shurtleff v. City of Boston, (D MA, filed 7/6/2018) alleges that it was refused use of a City Hall flagpole that is generally available to organizations to use in connection with cultural, historic or other events.  Camp Constitution sought to fly a Christian flag in connection with its planned event designed to recognize the contributions Boston’s Christian community to the city’s cultural diversity, intellectual capital and economic growth.  The city refused permission under an informal policy that allowed only "non-secular" flags to fly from the pole. The suit contends that this violate's plaintiffs' free speech and equal protection rights as well as the Establishment Clause under both the U.S. and Massachusetts constitutions. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Fired Magistrate Has Due Process But Not Equal Protection Claim

In Edelstein v. Stephens, (SD OH, March 31, 2018), an Ohio federal district court adopted in part and rejected in part a magistrate's recommendations and held that a magistrate/ staff attorney who was fired after she requested eight days off for Jewish holidays had failed to allege an equal protection violation. However, the court concluded that plaintiff had adequately alleged a due process violation in her claim that her employment was terminated in a manner that "created the impression that Plaintiff had committed a serious violation of procedure, law or ethics and devastated Plaintiff's reputation in the legal community."

Advocacy Groups Say Military Is Imposing Religious Participation On Cadets

The Freedom From Religion Foundation and American Atheists announced this week that they have sent a joint letter (full text) to Secretary of Defense James Mattis complaining about an increased incidence of military members and their families being forced to participate in religious observances at military training facilities. The letter says in part:

By scheduling prayer in graduation ceremonies, and by leading cadets in prayer prior to examinations, our military training facilities are violating the Establishment Clause of the First Amendment. By assigning menial or labor-intensive tasks to cadets who elect not to participate in worship services, these facilities are violating the equal protection principles enshrined in the Due Process Clause of the Fifth Amendment.

Friendly Atheist Blog reports on the letter.

DC Circuit Refuses Injunction Pending Appeal In DC Religious Bus Ad Case

In Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (DC Cir., Dec. 20, 2017), the Court of Appeals for the D.C. Circuit refused to issue an injunction pending appeal to prevent enforcement of a WMATA advertising policy that rejects bus ads which promote religion, religious practices or religious beliefs.  Earlier this month, the district court upheld WMATA's rejection of an ad from the Archdiocese promoting its "Find the Perfect Gift" Christmas campaign. (See prior posting.)  In denying the motion for an injunction, the Court of Appeals said in part:

Appellant has failed to establish a substantial likelihood of success because, at least at this early pre-discovery procedural stage, Appellant’s argument of discriminatory treatment is grounded in pure hypothesis. Appellant has not come forward with a single example of a retail, commercial, or other non-religious advertisement on a WMATA bus that expresses the view that the holiday season should be celebrated in a secular or non-religious manner.

The court did order an expedited briefing schedule, and urged the parties to limit the use of abbreviations, including acronyms, in their briefs.  Washington Post reports on the decision.

DC Transit Authority's Ban On Religious Ads Upheld

In Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (D DC, Dec. 8, 2017), the DC federal district court upheld advertising Guidelines of the Washington Metropolitan Area Transit Authority which, among other things, bar transit vehicle ads "that promote or oppose any religion, religious practice or belief."  The Catholic Archdiocese challenged the application of this Guideline after WMATA refused to allow the Archdiocese's "Find the Perfect Gift" Christmas campaign ad.  The ad, intended for the exterior of public buses, was designed "to invite the public to consider the spiritual meaning of Christmas..." Denying a preliminary injunction, the court found that plaintiff is unlikely to succeed  on the merits of its free speech, free exercise, equal protection or RFRA arguments.

Rejecting the Archdiocese's free speech claim, the court held that the exterior of a bus in not a "public forum," and WMATA's restriction is neutral and reasonable.  The court said in part:

plaintiff maintains that the Guideline has been discriminatorily and arbitrarily enforced, favoring other religious advertisements over those sponsored by the Catholic Archdiocese.... But the record does not support this contention. None of the advertisements plaintiff highlights to make that point – neither the ads heralding the opening of another CorePower Yoga fitness studio in Clarendon, Virginia (“Muscle + Mantra”), nor the ads soliciting contributions to the Salvation Army’s Red Kettle effort (“Give Hope. Change Lives”) “promote or oppose any religion.”

Rejecting plaintiff's RFRA argument, the court said that no "substantial burden" or religious exercise was shown here:

... RFRA decisions turn on an element of compulsion, and here plaintiff is under no pressure to do anything. The fact that plaintiff has a sincere belief in spreading the gospel is not in dispute, but the existence of that belief, and even the sincere desire to act in accordance with it, is not enough to sustain a claim.

Washington Post reports on the decision.

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.

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.

Church Can Move Ahead With RLUIPA Challenges To Zoning Refusal

In Hunt Valley Baptist Church, Inc. v. Baltimore County, Maryland, (D MD, Oct. 17, 2017), a Maryland federal district court held that a Baptist church can proceed with challenges under RLUIPA as well as with Free Exercise and Equal Protection challenges to the county's refusal to grant it a special exception under its zoning laws to allow construction of a place of worship and related facilities. The court said in part:

... [T]he Church has stated a substantial burden claim under 42 U.S.C. §2000cc(a)(1) because it has plausibly alleged that it had a reasonable expectation that it could build a house of worship on the Property if it satisfied the conditions. Moreover, the Church alleges that it complied with all of the objective standards under BCZR § 502.1 for the grant of a special exception. ....

HVBC has adequately alleged that it was treated less favorably than other religious denominations, and that the rejection of its application for a special exception ―was substantially motivated by hostility and animus toward the Church and its religious character, practices and denomination.

UPDATE: The court filed an amended opinion on Oct. 24, involving a change on the last page of the opinion as to dropping one of the defendants.

Church Loses RLUIPA Equal Terms Challenge To Parking Requirements

In Immanuel Baptist Church v. City of Chicago, (ND IL, Sept. 22, 2017), an Illinois federal district court dismissed a church's facial RLUIPA "equal terms" challenge, as well as its equal protection challenge to the city's parking requirement for "religious assemblies." The court concluded that churches are not similarly situated to libraries for which less stringent parking standards are imposed. The court however granted the church leave to file an amended complaint asserting an "as applied" RLUIPA challenge.

Settlement Reached In Suit Over University Service Learning Credit For Religious Activity

A settlement has been reached in a lawsuit against the University of Wisconsin Eau Claire (see prior posting) over its refusal to count religious teaching to children as a permissible type of community service to satisfy university students' service learning requirement. Credit was give for various sorts of non-religious teaching.  Under the settlement agreement (full text) in Liebl v. Schmidt, the University agreed to remove language from its Service Learning Guidebook and from as University Senate motion that had disallowed credit for "time spent directly involved in promoting religious doctrine, proselytizing or worship." The University also agreed to pay plaintiffs' attorneys fees of $15,000.  Plaintiffs filed a Notice of Voluntary Dismissal with the Wisconsin federal district court on July 6.  ADF issued a press release announcing the settlement.

5th Circuit: Plaintiffs Lack Standing to Challenge Mississippi's Anti-LGBT Conscience Law

In Barber v. Bryant, (5th Cir., June 22, 2017), the U.S. 5th Circuit Court of Appeals dismissed for lack of standing two suits challenging Mississippi's HB 1523 which protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions on three topics.  The protected beliefs are that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth.  The district court had concluded that the statute violates the Establishment Clause and Equal Protection Clause. (See prior posting.) However the 5th Circuit concluded that plaintiffs had alleged nothing more than "a general stigmatic injury," and this is insufficient for standing. MS News Now reports on reactions to the decision.

Suit Challenges University's Service Learning Requirements

A suit filed yesterday in a Wisconsin federal district court challenges the constitutionality of the University of Wisconsin, Eau Claire's service learning program.  All students must complete 30 hours of community service in order to graduate; however activities that directly involve promoting religious doctrine, proselytizing, or worship are not eligible for credit. The complaint (full text) in Liebl v. Schmidt, (WD WI, filed 11/10/2016), alleges that the two students who are bringing suit were not allowed to count time teaching religious education classes to children as community service, while students could receive service-learning credit for a variety of activities that involve non-religious instruction or non-religious persuasion and recruitment. The suit alleges that this policy violates plaintiffs' 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

Federal District Court Strikes Down Mississippi's Anti-LGBT Conscience Protection Law

In Barber v. Bryant, (SD MS, June 30, 2016), a Mississippi federal district court in a stinging 60-page opinion, issued a preliminary injunction against enforcement of Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act.  The new law protects a wide variety of conduct, or refusals to provide goods and service, based on a religious or moral belief that: (1) marriage is a union of one man and one woman; (2) sexual relations should be reserved to heterosexual marriage; and (3) gender is an immutable characteristic determined by anatomy and genetics at the time of birth.  The court concluded that the law, which would have gone into effect today, violates both the Establishment Clause and the Equal Protection Clause. Summarizing the history of the bill, the court said:

In physics, every action has its equal and opposite reaction. In politics, every action has its predictable overreaction..... Obergefell has led to HB 1523.

The court summarized its conclusions:

HB 1523 grants special rights to citizens who hold one of three “sincerely held religious beliefs or moral convictions” reflecting disapproval of lesbian, gay, transgender, and unmarried persons.... That violates both the guarantee of religious neutrality and the promise of equal protection of the laws.

The Establishment Clause is violated because persons who hold contrary religious beliefs are unprotected – the State has put its thumb on the scale to favor some religious beliefs over others. Showing such favor tells “nonadherents that they are outsiders, not full members of the political community, and . . . adherents that they are insiders, favored members of the political community.” ... And the Equal Protection Clause is violated by HB 1523’s authorization of arbitrary discrimination against lesbian, gay, transgender, and unmarried persons....

Responding to the state's argument that the law "is justified by a compelling government interest in accommodating the free exercise of religion," the court said that the state had "not identified 'even a single instance' in which Obergefell has led to a free exercise problem in Mississippi." The court added:

In this case, moreover, it is difficult to see the compelling government interest in favoring three enumerated religious beliefs over others....  It is not within our tradition to respect one clerk’s religious objection to issuing a same-sex marriage license, but refuse another clerk’s religious objection to issuing a marriage license to a formerly-divorced person. The government is not in a position to referee the validity of Leviticus 18:22 (“Thou shalt not lie with mankind, as with womankind: it is abomination.”) versus Leviticus 21:14 (“A widow, or a divorced woman, or profane, or an harlot, these shall he not take.”).

BuzzFeed and the Washington Post have additional coverage of the opinion.

Cert. Petition Filed In Challenge To Differential NY Child Protection Safeguards For Private Schools

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in U.L. v. New York State Assembly.  In the case, the U.S. Second Circuit Court of Appeals rejected 1st and 14th Amendment challenges to New York's statutory exclusion of private schools (including religious schools) from some of the state child protection requirements that are mandatory in public schools. (See prior posting.) [Thanks to Elliot Pasik for the lead.]

2nd Circuit: Post-9-11 Muslim-Arab Alien Detainees Have Due Process-Equal Protection Claims

In Turkmen v. Hasty, (2d Cir., June 17, 2015), the U.S. Second Circuit Court of Appeals in a 2-1 decision held that a group of "out-of-status" aliens rounded up on immigration charges and detained after the 9/11 attacks have substantive due process and equal protection claims under Bivens v. Six Unknown Agents against various defendants including former Attorney General John Ashcroft, former FBI Director Robert Mueller and former INS Commissioner James Ziglar.  The court however held that a Bivens remedy is not available  for plaintiffs' free exercise claims.  The majority concluded that plaintiffs had adequately pleaded that they were being held in punitive conditions only because they were, or were perceived to be, Arab or Muslim.  According to the majority, that policy was "built on a perception of a race and faith that has no basis in fact." AP and FDL report further on the 109-page majority opinion and 91-page dissent.

2nd Circuit OK's Differential Child Protection Requirements In Public and Private Schools

In U.L. v. New York State Assembly, (2d Cir., Feb. 5, 2015), the U.S. 2nd Circuit Court of Appeals affirmed the district court's dismissal of a lawsuit brought by a minor student enrolled in a Nassau county yeshiva and by her father claiming that students' equal protection, due process and free exercise rights are violated  by the state legislature's exclusion of private schools (including religious schools) from some of the state child protection requirements that are mandatory in public schools. (See prior posting). The district court dismissed on sovereign and legislative immunity grounds.  The 2nd Circuit in affirming and refusing to allow plaintiffs to replead the case said:

Assuming U.L. could successfully plead around the immunity doctrines, his claims would still fail as a matter of law. The challenged child-protection laws, which are unquestionably secular, are equally inapplicable to all private schools, religious and secular. Nothing about them offends the Establishment or Free Exercise Clauses of the First Amendment....

U.L.’s claims under the Equal Protection and Due Process Clauses of the Fourteenth Amendment likewise fail, because the laws neither target a suspect class nor impair the exercise of a fundamental right, and easily pass muster under rational basis review.

[Thanks to Elliot Pasik for the lead.]

9th Circuit Denies En Banc Review On Strict Scrutiny For Sexual Orientation Classifications

Earlier this week, the U.S. 9th Circuit Court of Appeals refused to grant en banc review to an earlier decision by a 3-judge panel that concluded heightened scrutiny must be applied to equal protection claims based on sexual orientation. In SmithKline Beecham Corp. v. Abbott Laboratories, (9th Cir., June 24, 2014), the court reported that the call for en banc review did not receive a majority vote.  However Judge O'Scannlain, joined by Judges Bybee and Bee, filed a dissent to the refusal to review, saying in part:

This case ... came to our court in the posture of an appeal from a simple juror selection ruling during trial. Sadly, it has morphed into a constitutional essay about equal protection and sexual orientation.... The opinion’s unprecedented application of heightened scrutiny to a peremptory strike of a juror who was perceived to be gay bears significant implications for the same-sex marriage debate and for other laws that may give rise to distinctions based on sexual orientation.

Indeed, today’s opinion is the only appellate decision since United States v. Windsor ... to hold that lower courts are “required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection.” ... Such holding is wrong, egregiously so. Because of the danger that district courts will be misled by the opinion’s sweeping misinterpretation of Windsor, it is most unfortunate that we denied rehearing en banc.

SCOTUS Blog has more on the decision.