Good News Clubs Sue California School District for Access

Suit was filed yesterday in a California federal district court by Child Evangelism Fellowship alleging that a California school district has prevented Good News Clubs from meeting in district elementary schools. The complaint (full text) in Child Evangelism Fellowship NORCAL, Inc. v. Oakland Unified School District Board of Education, (ND CA, filed 12/11/2024), alleges in part:

1. For over two years, Defendant OUSD and its officials have unconstitutionally and impermissibly prohibited CEF from hosting its Good News Clubs in public elementary school facilities owned by OUSD. The Good News Club provides free moral and character training to students from a Christian viewpoint and strategically meets at public schools after school hours for the convenience of parents. CEF’s Good News Club has enriched the emotional, physical, and spiritual well-being of students across OUSD for over a decade. 

2. ... CEF was forced to temporarily end its Good News Club meetings in 2020 due to COVID-19 but sought to resume its meetings starting in January 2023. Despite having a long and storied history of providing after-school enrichment programs to students in OUSD, numerous schools within OUSD inexplicably denied the Good News Club access to use OUSD facilities while allowing numerous secular organizations and activities to resume meeting after school hours.  

3. CEF seeks a judgment declaring Defendants’ discriminatory use policies unconstitutional, both on their face and as applied, under the Free Speech, Establishment, and Free Exercise Clauses of the First Amendment to the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment. CEF also seeks preliminary and permanent injunctive relief ... together with damages....

Liberty Counsel issued a press release announcing the filing of the lawsuit.

Local Congregation Cannot Sue Parent in Property Dispute After All Its Members Were Excommunicated

Church of God of Crandon v. Church of God, (WI App., Oct. 15, 2024), involved a dispute between a local congregation-- the Crandon Church-- and its parent body, Church of God (COG). The Crandon Church opposed the parent body's decision that the local church would be merged with a congregation in a different location and the Crandon Church property would be sold. Crandon members filed suit against the parent body seeking a declaration confirming its interest in local church building and its bank accounts. In response, the COG Bishop issued a Declaration excommunicating Crandon Church members and then moved to dismiss the lawsuit against COG on the ground that Crandon no longer had any members so that it effectively has ceased to exist and has no interest in Crandon property. The appellate court agreed, saying in part:

... [T]he 1994 warranty deed states that all property—both real and personal—becomes the property of the COG should a “local congregation” “cease to … exist.”  The Crandon Church cannot file a lawsuit to obtain an interest in property that it does not own.  Because we conclude that the First Amendment prohibits our review of the Declaration, the Crandon Church lacks standing to bring the current lawsuit seeking interests in the property and the CoVantage accounts....

... [A] civil court cannot, under the First Amendment, review:  whether the 2018 Minutes [giving the Bishop the authority to excommunicate unruly or uncooperative members] complied with due process or the Bible; what the COG meant by “unruly or uncooperative”; or whether Cushman properly determined that the excommunicated members were “unruly or uncooperative.”  Similarly, the First Amendment prohibits a civil court from examining the International Executive Committee’s review of those issues.  To hold otherwise “would undermine the general rule that religious controversies are not the proper subject of civil court inquiry.” ... Under the facts of this case, we must defer to the resolution of any ecclesiastical issues by the International Executive Committee, which denied the excommunicated members’ appeal.

Federal Court Refuses to Enjoin Distribution of Notice from Rabbinical Court

In Esses v. Rosen, (ED NY, Oct. 15, 2024), a New York federal district court refused to issue a preliminary injunction barring defendants from disseminating in plaintiff's neighborhood a rabbinical court's notice (a sieruv) that plaintiff has failed to respond to a summons from the rabbinical court. Plaintiff also asked that the seiruv be taken down or removed from places where it had been posted. Plaintiff alleged claims for defamation and intentional infliction of emotional distress.  The court said in part:

While plaintiff does not dispute that she brought the claims in this case before a secular court rather than a religious one, she suggests that the seiruv is defamatory because it indicates that her doing so was “improper[].”  That statement is nowhere contained in the seiruv itself.  But even if the seiruv is read to convey that implication through its reference to plaintiff’s civil filing, the First Amendment would prevent this Court from second-guessing a religious court’s view of impropriety. ... 

Plaintiff next claims that the instructional document distributed with the seiruv is defamatory because it falsely conveys “that the rabbis of the beth din were encouraging social ostracism and shaming in this case.” ... In any event, the Establishment Clause would preclude this Court from finding defamation on that ground.  To decide whether the instructional document was true or false in its asserted characterization of plaintiff’s seiruv, the Court would be “called upon to inquire into the rules and customs governing rabbinical courts as they are utilized in the Orthodox Jewish religion,”

[Thanks to Volokh Conspiracy for the lead.]

Religious College Sues Georgia Seeking Inclusion in State Grant and Scholarship Programs

Yesterday suit was filed in a Georgia federal district court challenging the constitutionality of excluding Luther Rice College and Seminary from state scholarship and grant programs for students attending private colleges. Georgia law excludes schools or colleges of theology or divinity. The complaint (full text) in Luther Rice College and Seminary v. Riley, (ND GA, filed 10/15/2024), alleges in part:

9. Georgia allows other religious schools—including schools with religious missions that offer religious undergraduate degree programs like Luther Rice—to participate in Georgia student aid programs....

11. If Luther Rice did not have a religious mission, offer religious degree programs, and teach all courses from a Christian worldview, its undergraduate students could receive Georgia student aid.

12. So Luther Rice faces a choice between (a) maintaining its religious mission and degree programs and teaching all courses from a Christian worldview, or (b) giving up that religious character and exercise to participate equally with other schools in the State.

13. Putting the school to that choice is unconstitutional....

Plaintiffs allege that the exclusion violates the free exercise and Establishment Clauses, the equal protection clause and plaintiff's free expression rights. ADF issued a press release announcing the filing of the lawsuit.

Suit Over Deceptively Promoted School Religious Program Moves Ahead

In Roe v. East Baton Rouge Parish School Board, (MD LA, Oct. 8, 2024), a Louisiana federal district court refused to dismiss many claims brought by high school seniors and their parents asserting violations of the Establishment Clause, infringement of parental rights, sex discrimination, violation of the Louisiana Parents Bill of Rights, negligence, infliction of emotional distress and fraud. According to the court:

Plaintiffs’ lawsuit centers around the overarching allegation that, “[f]or several years going back to at least 2016, [defendants] ... were engaged in a conspiracy to expose public school children to overtly sectarian and religious experiences directly through the East Baton Rouge School System..., often without the knowledge or permission of the students’ parents or guardians.” [They] ...developed a program called ‘Day of Hope’, whereby public school students of the East Baton Rouge School System would be sent to a religious service during school time, chaperoned by EBRSB employees.” ... [Defendants] advertised the 2022 event to parents and students as a ‘College and Career Fair’, providing ‘a college and career fair, breakout sessions, live music, a keynote speaker, free food, and more.’ None of the promotional materials or advertisements for the event provided any obvious religious connection.” Plaintiffs claim that, “[i]n actuality, ‘Day of Hope’ speakers were almost exclusively pastors or other religious speakers who describe their participation in the public school event as ‘worship[]’ and ‘minister[ing] to over 1000 kids’, including hashtags on social media posts describing the event like ‘#GodGetsTheGlory’.” ...

The allegations taken as true suggest coercion as understood by Supreme Court precedent, and the prohibition against this practice was clearly established at the time of the alleged violation....

The Title IX claim focuses primarily on two aspects of the Day of Hope program: 1) transgender and gender non-conforming students were forced into “either male or female segregated gender groups based on their outward appearance and without their consent”; and 2) while the male students engaged in “frivolous recreational activities,” the female students were “exposed to a ‘girls gender talk’ including traumatizing lectures by pastors and other religious figures about virginity, rape, abuse, and suicide, even being told to ‘forgive’ their rapists and abusers.”...

7th Day Adventists Sue Maryland Over Narrow Interpretation of Fair Employment Practices Act Exemption

Last week, the Seventh Day Adventist Church filed suit against officials and members of the Maryland Civil Rights Commission challenging as unconstitutional the Maryland Supreme Court's narrow interpretation of the religious institution exemption from the anti-discrimination provisions of the Maryland Fair Employment Practices Act (FEPA). Last year in Doe v. Catholic Relief Services, the Maryland Supreme Court held that the religious institution exemption only applies to "claims brought by employees who perform duties that directly further the core mission (or missions) of the religious entity." (See prior posting.) The complaint (full text) in General Conference of the Seventh Day Adventists v. Horton, (D MD, filed Oct. 2, 2024), alleges that the Catholic Relief Services interpretation of FEPA exemption violates plaintiffs' rights under the Free Exercise and Establishment Clauses as well as other 1st and 14th Amendment rights. The complaint says in part:

Plaintiffs believe that all their employees are representatives of the Church and are responsible for sharing the Church’s faith with the world. It is therefore a critical component of Plaintiffs’ religious exercise that all their employees embrace the Church’s faith, support its religious mission, and share the faith with others. This is why Plaintiffs’ employment policies have long required all those they employ to be members of the Church in regular standing and to conduct themselves in accordance with the Church’s religious beliefs....

What is more, applying Catholic Relief Services’ gloss on MFEPA would require the government to engage in a “fact-intensive inquiry” to “determine[] what constitutes a core mission” for each Plaintiff, and then assess which roles “directly” further those mission(s)...."  Applying this amorphous standard would require courts to delve into entangling questions of religious doctrine.

Becket Fund issued a press release announcing the filing of the lawsuit.

Cert. Petition Filed in Oklahoma Religious Charter School Case

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Oklahoma Statewide Charter School Board v. Drummond, (Sup. Ct., cert. filed 10/7/2024). In the case, the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. (See prior posting.) The petition for review contends that exclusion of religious schools from the state's charter school program violates the 1st Amendment's free exercise clause and that religious instruction by a state-funded charter school does not constitute state action. ADF issued a press release announcing the filing of the petition for review.

Teaching of Evolution Does Not Violate Establishment Clause

In Reinoehl v. Penn-Harris-Madison School Corporation, (SD IN, Aug. 30, 2024), an Indiana federal district court held that teaching the theory of evolution in public schools does not violate the Establishment Clause. The court said in part:

We find that Plaintiffs have failed to allege an Establishment Clause violation here because "it is clearly established in the case law, and perhaps also in common sense, that evolution is not a religion and that teaching evolution does not violate the Establishment Clause." ...

Nonetheless, according to Plaintiffs, "[e]volution promotes positions taken by advocates of Atheism," embodies "all the tenets of atheistic religious belief[,] and fail[s] to follow scientific laws . . . ." Plaintiffs thus "perceive" that the teaching of evolution in public schools "convey[s] a governmental message that students should subscribe to Atheism."... Despite Plaintiffs' assertions to the contrary, the purported similarities between evolution and atheism do not render the teaching of evolution in public schools violative of the Establishment Clause, which has never been understood to prohibit government conduct that incidentally "coincide[s] or harmonize[s] with the tenets of some or all religions."...

9th Circuit: Title IX's Religious Exemption Does Not Violate Establishment Clause

In Hunter v. U.S. Department of Education, (9th Cir., Aug. 30, 2024), the U.S. 9th Circuit Court of Appeals held that the exemption available to religious educational institutions from Title IX's ban on sex discrimination (including sexual orientation and gender identity) does not violate the Establishment Clause or equal protection guaranties. The court said in part:

Any practice that was “accepted by the Framers and has withstood the critical scrutiny of time and political change” does not violate the Establishment Clause....

Given the dearth of historical equivalents, ... tax exemptions are the most analogous case to Title IX’s statutory exemption.... Absent additional historical evidence—and Plaintiffs point us to none here—the history of tax exemptions near the time of the Founding suggests that the statutory exemptions that operate as a subsidy to religious institutions do not violate the Establishment Clause according to its original meaning.

Having considered the history of religious exemptions at or near the Founding, the history and tradition test requires us to look next to the “uninterrupted practice” of a law in our nation’s traditions....  The Department identifies a relevant tradition in “modern legislative efforts to accommodate religious practice.” ...

... [T]here is no evidence in the record that the exemption here “was drafted with the explicit intention of including particular religious denominations and excluding others.”...

... Here, when a school claims an exemption, the Department must make two determinations—whether the school is controlled by a religious organization and whether Title IX would conflict with the religious tenets of the controlling organization....  The Department has ... “never rejected an educational institution’s assertion that it is controlled by a religious organization” and “never denied a religious exemption when a religious educational institution asserts a religious objection.” ...

The exemption substantially relates to the achievement of limiting government interference with the free exercise of religion....

1st Circuit: Satanic Temple Loses Bid to Deliver City Council Invocation

In The Satanic Temple, Inc. v. City of Boston, (1st Cir., Aug. 6, 2024), the U.S. 1st Circuit Court of Appeals rejected arguments that the failure to invite Satanic Temple to deliver an invocation at a Boston City Council meeting violated the 1st Amendment's Establishment Clause and the free exercise clause of the Massachusetts Constitution. Individual members of Council invite invocation speakers, without any guidelines as to selection. They choose speakers based on personal relations or based on the work the speaker does in the member's district or with the member's constituents. The court said in part:

TST has not shown that any of the Boston City Councilors have chosen invocation speakers based on the Councilors' own religious preferences or biases or barred potential speakers from delivering invocations that oppose the Councilors' religious beliefs.  The record shows rather that speakers were invited based on their contributions to the Councilors' districts and to the Boston community....

The record shows that there are many neutral, non-discriminatory reasons why TST has not been invited to give an invocation, including the following.  TST does not claim to have had a personal or working relationship with any Councilor on the basis of work it has done to benefit Boston communities. ...

Chief Judge Barron filed a concurring opinion, saying in part:

The City starkly sets forth the argument that causes me concern in its brief to us on appeal.  It contends -- seemingly unabashedly -- that the Establishment Clause permits City Councilors to choose invocation speakers based on how likely the selection is to earn them votes at the ballot box from certain religious communities.... 

I suppose the City is right that using invocations to attract political support from certain religious communities does not constitute invidious religious discrimination.  But I am dubious that the Establishment Clause blesses the practice that the City describes....

Religious College Loses RFRA Challenge to SBA's Loan Forgiveness Rules

 In Gordon College v. U.S. Small Business Administration, (D DC, July 18, 2024), the D.C. federal district court dismissed claims by a religious nonprofit college that its rights under RFRA as well as the 1st and 14th Amendments were infringed when it was denied forgiveness of a $7 million loan that it received under the Covid era Paycheck Protection Program. Loan forgiveness was available to qualifying small businesses. Gordon College's loan forgiveness application was denied because it had over 500 employees and thus did not meet the SBA's small-business size standard. Rejecting plaintiff's RFRA claim, the court said in part:

... [P]laintiff fails to identify a “sincere religious belief” that has been infringed by application of the PPP’s 500-employee cap to plaintiff.... Absent here ... is any articulated connection between plaintiff’s asserted need to have more than 500 employees and its exercise of religion.  Plaintiff, for example, does not allege that “any religious group” has “as one of its tenets” the requirement that an associated religious institution have more than 500 employees ... or that it has treated having more than 500 employees to “ris[e] to [any] level of significance in [its] religion.”...

As to plaintiff's Constitutional challenges, the court said in part: 

... [T]he application of the PPP’s 500-employee cap to plaintiff is neutral and generally applicable, thereby triggering rational basis review, rather than strict scrutiny.  Plaintiff has failed to bring a rational-basis challenge by not plausibly alleging that no reasonable set of facts could provide a rational basis for the PPP’s 500-employee cap.  Accordingly, plaintiff’s Free Exercise and Equal Protection claims are dismissed....

Here, plaintiff alleges that “[d]efendants have interfered with the autonomy of [plaintiff] to define its own doctrine, membership, employment, staffing, affiliation, and other internal requirements” by “insisting on certain requirements [sic] for determining staffing and employment.... [P]laintiff has failed ... to explain why the PPP’s 500-employee cap... interfered with any “matters of faith and doctrine.”  Plaintiff’s religious autonomy claim is thus dismissed.

Diocese Not Liable in Bankruptcy for Sex Abuse Without Agency Relationship with Abuser or Abuser's Institution

In In re Roman Catholic Diocese of Rockville Centre, New York, (SD NY, July 15, 2024), a New York federal district court affirmed a bankruptcy court's dismissal of appellants' claims that they were sexually abused as children by clergy and staff at religious institutions in the diocese's territory. The court said in part:

... [T]o adequately assert state law tort claims, Claimants must plead that the Debtor had some control over the abusers or the religious institutions where the abuse occurred....  In other words, Claimants were required to plead the existence of an employment or agency relationship between the Diocese and the alleged abusers, or an agency relationship between the Diocese and the religious institutions.   

The bankruptcy court properly determined that Claimants offered no non-conclusory allegations to support either theory of liability....

The bankruptcy court correctly observed that “the Free Exercise Clause and Establishment Clause of the United States Constitution bar courts from interpreting issues of religious Canon Law to resolve disputes.”...  Instead, “the claimants must show that an employment or agency relationship existed between the Debtor and abuser or Religious Institutions/Orders, based on facts relevant to those theories as they are normally established in the secular context.”... [T]he resolution of the issue presented in this case ... does not, however, depend upon any interpretation of Canon Law that would violate the First Amendment.  Here, Claimants fail to state a claim because the allegation that the Diocese revoked the faculties of one abuser accused in connection with a claim that is not at issue in this appeal is insufficient to plausibly allege that the specific abusers at issue here were employees or agents of the Diocese, or that their institutions were agencies of the Diocese.... [A]n allegation that the Diocese hired, fired, supervised, or disciplined an individual not at issue in this appeal does not support an inference that the Diocese has the power to control all clergy or staff at Catholic institutions within its geographic territory or exercised that power over any specific abuser in this appeal....

2nd Circuit: Trial Court Must Make Further Findings in Wedding Photographer's Challenge to NY Public Accommodation Law

In Emilee Carpenter, LLC, dba Emilee Carpenter Photography v. James, (2d Cir., July 12, 2024), the U.S. 2nd Circuit Court of Appeals reversed and remanded a New York federal district court's dismissal of a free speech challenge by a wedding photographer to New York's public accommodation law that bars discrimination on the basis of sexual orientation.  The photographer refuses because of her religious and personal beliefs to photograph same-sex weddings.  The court held that the case must be remanded for further fact finding in light of the U.S. Supreme Court's intervening decision in 303 Creative LLC v. Elenis. The court said in part:

... [W]hether Carpenter’s actual wedding photography services constitute expressive conduct is an open threshold question for the district court to consider on remand...

To state a compelled speech claim, it is not enough for a plaintiff to show that the service at issue involves a medium of expression.  The plaintiff must also demonstrate that the expressive activity is her own – that is, she created the expressive content herself or, by compiling or curating third-party content in some forum, she is also engaged in her own expressive activity....

Here, to the extent Carpenter is using her photographs or website to host the expressive content of third parties (such as the wedding couple who hired her), rather than her own, the district court must determine ... whether the law compels Carpenter’s own speech....

Specifically, the court should assess whether Carpenter’s blogging is more akin to, for instance, advertisement than to a service Carpenter offers to the general public, which her customers purchase from her—in other words, whether Carpenter’s blogging is a good or service regulated by New York’s public accommodations laws....

The court rejected the photographer's expressive association, free exercise, Establishment Clause and vagueness claims, saying in part:

Nowhere in her complaint does Carpenter allege that she offers as a service to the public her active religious participation in the weddings that she photographs.  New York’s laws therefore do not require Carpenter to sing, pray, follow an officiant’s instructions, act as a “witness” of the union “before God,” or otherwise participate in any same-sex wedding....

Courthouse News Service and ADF report on the decision. 

City-Sponsored Prayer Vigil Violated Establishment Clause

In Rojas v. City of Ocala, (MD FL, June 26, 2024), a Florida federal district court held that a prayer vigil in the town square organized by the police department violated the Establishment Clause. The 2014 vigil was planned in order to encourage witnesses to a shooting spree to come forward. The court in a previous decision found that the vigil violated the Establishment Clause, but the 9th Circuit remanded the case after the U.S. Supreme Court in 2022 repudiated the Lemon test and adopted a new test for determining when there has been an Establishment Clause violation. (See prior posting.) Reflecting on the time that had passed since the vigil, the court said:

In the meantime, the Chief of Police, Greg Graham, passed away; the Mayor of Ocala at the time left office; and the Prayer Vigil (which occurred in 2014) has not been repeated. Thus, the Court inquired whether it would make sense to call it a day on this timeworn litigation. But the parties, both represented by lawyers who specialize in First Amendment religion cases, insist on going forward. And, as the Court previously awarded nominal damages, the case is not moot....  So on we go.

Reaching the conclusion that under the Supreme Court's new Establishment Clause test set out in Kennedy v. Bremerton School District there was still an Establishment Clause violation, the court said in part:

Based on the undisputed facts, the City’s involvement in conceiving, organizing, and implementing the Prayer Vigil is government sponsorship of a religious event...

... [T]he City’s support of the Prayer Vigil favored a religious viewpoint. While the Prayer Vigil was geared towards Christianity, there is some evidence that it was not limited to any one faith.... But that thin layer of neutrality is not enough to avoid an Establishment Clause violation....

Similarly, Chief Graham’s offer to connect an objector, Paul Tjaden, with organizers... is not comparable to neutrality....  Trying to achieve neutrality towards religion by inviting an atheist to speak at an event whose only purpose is prayer fails to treat the secular viewpoint with the same level of respect being provided to religious prayer.

As Kennedy commands, the Court bases its decision on a “historically sensitive understanding of the Establishment Clause”....

Oklahoma Supreme Court Says Creation of Religious Charter School Is Unconstitutional

In Drummond v. Oklahoma Statewide Virtual Charter School Board, (OK Sup, Ct., June 25, 2024), the Oklahoma Supreme Court held that the state Charter School Board's authorization of a Catholic sponsored publicly-funded charter school violates Oklahoma statutes, the Oklahoma Constitution and the First Amendment's Establishment Clause. The court said in part:

Although a public charter school, St. Isidore is an instrument of the Catholic church, operated by the Catholic church, and will further the evangelizing mission of the Catholic church in its educational programs. The expenditure of state funds for St. Isidore's operations constitutes the use of state funds for the benefit and support of the Catholic church. It also constitutes the use of state funds for "the use, benefit, or support of . . . a sectarian institution." The St. Isidore Contract violates the plain terms of Article 2, Section 5 of the Oklahoma Constitution....

Because it is a governmental entity and a state actor, St. Isidore cannot ignore the mandates of the Establishment Clause, yet a central component of St. Isidore's educational philosophy is to establish and operate the school as a Catholic school. St. Isidore will fully incorporate Catholic teachings into every aspect of the school, including its curriculum and co-curricular activities. It will require students to spend time in religious instruction and activities, as well as permit state spending in direct support of the religious curriculum and activities within St. Isidore--all in violation of the Establishment Clause....

... [W]hat St. Isidore requests from this Court is beyond the fair treatment of a private religious institution in receiving a generally available benefit, implicating the Free Exercise Clause. It is about the State's creation and funding of a new religious institution violating the Establishment Clause.12 Even if St. Isidore could assert free exercise rights, those rights would not override the legal prohibition under the Establishment Clause. Compliance with the Establishment Clause in this case is a compelling governmental interest that satisfies strict scrutiny under other provisions of the First Amendment.

Vice Chief Justice Rowe concurred in part and dissented in part, saying that he concurred only in the conclusion "that Article 1, Section 5 of the Oklahoma Constitution mandates that public charter schools are nonsectarian."

Justice Kuehn dissented, saying in part:

St. Isidore would not become a "state actor" merely by contracting with the State to provide a choice in educational opportunities. By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause of the First Amendment to the United States Constitution.

AP reports on the decision.

Suit Challenges Louisiana's Law Requiring Posting of 10 Commandments in Public Schools

Suit was filed yesterday in a Louisiana federal district court by a group of parents (some of whom are clergy) on behalf of their minor children challenging Louisiana's recently enacted statute that requires the posting of the Ten Commandments in every public-school classroom. Contending that the law violates the Free Exercise and Establishment Clauses, the complaint (full text) in Roake v. Brumley, (MD LA, filed 6/24/2024) alleges in part:

Permanently posting the Ten Commandments in every Louisiana public-school classroom—rendering them unavoidable—unconstitutionally pressures students into religious observance, veneration, and adoption of the state’s favored religious scripture. It also sends the harmful and religiously divisive message that students who do not subscribe to the Ten Commandments—or, more precisely, to the specific version of the Ten Commandments that H.B. 71 requires schools to display—do not belong in their own school community and should refrain from expressing any faith practices or beliefs that are not aligned with the state’s religious preferences. And it substantially interferes with and burdens the right of parents to direct their children’s religious education and upbringing.  

...The state’s main interest in passing H.B. 71 was to impose religious beliefs on public-school children, regardless of the harm to students and families. The law’s primary sponsor and author, Representative Dodie Horton, proclaimed during debate over the bill that it “seeks to have a display of God’s law in the classroom for children to see what He says is right and what He says is wrong.”

The advocacy groups bringing the suit (ACLU, Americans United, FFRF) issued a press release announcing the filing of the suit.

Missouri Abortion Bans Do Not Violate State Constitution's Establishment Clauses

In Blackmon v. State of Missouri, (MO Cir. Ct., June 1, 2024), a Missouri trial court held that Missouri's various statutory provisions banning abortion do not violate the Establishment Clauses of the Missouri Constitution. Plaintiffs focused particularly on the mention of God in one of the statutory provisions and the legislative determination that life begins at conception in other provisions. The court concluded that the language mentioning God was similar to that in the Preamble to the Missouri Constitution, and that finding that language problematic would call into question whether the state Constitution's Preamble itself violates the Constitution.  In rejecting plaintiffs' other challenges, the court said in part:

Large portions of the parties' arguments centered around comments made by legislators concerning their religious motivations for supporting the Challenged Provisions. However, the court finds that individual comments by legislators should be given little to no consideration when determining the constitutionality of the Challenged Provisions....

The court does not accept Petitioners' argument that the determination that life begins at conception is strictly a religious one. The plain language of the Challenged Provisions stating that life begins at conception do not do so in religious terms.... While the determination that life begins at conception may run counter to some religious beliefs, it is not itself necessarily a religious belief. As such, it does not prevent all men and women form worshiping Almighty God or not worshipping according to the dictates of their own consciences....

Americans United issued a press release responding to the decision.

Church Sues Town Over Zoning Objections to Temporary Shelter Ministry

Suit was filed last week in a Colorado federal district court by a non-denominational Christian church challenging a town's claim that the church's Temporary Shelter Ministry violates the town's zoning ordinance. The complaint (full text) in Church of the Rock, Inc. v. Town of Castle Rock, Colorado, (D CO, filed 5/13/2024) alleges that the church's rights under the First Amendment as well as the Religious Land Use and Institutionalized Persons Act are violated by the town's objections to the church's use of an RV and a trailer in the church's parking lot as temporary or emergency shelter for homeless families. The church also claimed unlawful retaliation by the town. Plaintiff additionally filed a Memorandum in Support of Its Motion for Preliminary Injunction (full text). First Liberty issued a press release announcing the filing of the lawsuit.

10th Circuit: Vaccine Exemption for Only Some Religions Violates 1st Amendment

In Jane Does 1-11 v. Board of Regents of the University of Colorado, (10th Cir., May 7, 2024), the U.S. 10th Circuit Court of Appeals held that the policies for granting or denying a religious exemption from the Covid vaccine mandate on one of the campuses of the University of Colorado violated the 1st Amendment's Free Exercise and Establishment Clauses. As explained by the court:

The September 1 Policy declared that “[a] religious exemption may be submitted based on a person’s religious belief whose teachings are opposed to all immunizations.” ...  The Administration made clear that it would “only accept requests for religious exemption that cite to the official doctrine of an organized religion . . . as announced by the leaders of that religion.”  ....

...  Therefore, as the Administration explained to Anschutz students and employees, Christian Scientists and Jehovah’s Witnesses would qualify for an exemption under the Administration’s criteria.  However, the Administration would reject an application for an exemption if it deemed the applicant’s beliefs “personal,” not “religious,” or “not part of a comprehensive system of beliefs.”...  For example, the Administration decided that “it is ‘morally acceptable’ for Roman Catholics to take vaccines against COVID-19,” and that any Roman Catholic objections to the COVID-19 vaccine are “personal beliefs,” not “religious beliefs.” ... For similar reasons, the Administration refused to approve exemptions for Buddhist applicants.  Nor would the Administration approve exemptions for applicants who were members of the Eastern Orthodox Church.  The Administration also rejected exemption applications from Evangelical Christians, non-denominational Protestants, and applicants who did not specify whether they were affiliated with a particular religious organization....

The University adopted a modified policy on September 24 in the face of litigation, but, according to the majority, it was a mere pretext to continue its September 1 policy. The majority found that both policies were unconstitutional, summarizing its holding in part as follows:

We hold that a government policy may not grant exemptions for some religions, but not others, because of differences in their religious doctrines, which the Administration’s first policy did.  We further hold that the government may not use its views about the legitimacy of a religious belief as a proxy for whether such belief is sincerely-held, which the Administration did in implementing the first policy.  Nor may the government grant secular exemptions on more favorable terms than religious exemptions, which the Administration’s second policy does.  Finally, we hold that the policies at issue in this appeal were motivated by religious animus, and are therefore subject to strict scrutiny—which neither policy survives.  The district court concluded otherwise and, in so doing, abused its discretion.....

Judge Ebel filed a partial dissent, saying in part:

I agree the September 1 mandate should be enjoined preliminarily, although for reasons different from those relied upon by the majority.  However, I would not enjoin the September 24 mandate....  

... I see no evidence indicating that the University adopted either mandate out of an animus—that is, a hostility—toward religion generally or toward some religions in particular.  Second, Plaintiffs have not shown that the two inquiries the University posed to those applying for a religious exemption under the September 1 mandate infringed any First Amendment protection.  The University was entitled to ask applicants why they opposed being vaccinated in order to determine whether that opposition was based on religious beliefs and, if so, whether those religious beliefs were sincerely held and, if so, how those beliefs could be accommodated.

Thomas More Society issued a press release announcing the decision. 

5th Circuit Remands Muslim Inmate's RLUIPA and Establishment Clause Claims

 In Lozano v. Collier, (5th Cir., April 11, 2024), the U.S. 5th Circuit Court of Appeals reversed a portion of the district court's decision and vacated another portion of it in a challenge by a Muslim inmate to practices that allegedly burdened plaintiff's ability to exercise his religion. The court said in part:

In his first RLUIPA claim, Lozano alleges that the [Texas Department of Criminal Justice] Defendants burdened his religious exercise by denying him the opportunity to shower privately with other Muslim inmates for Jumah.  He alleges that the shower conditions—which include inmates who are “naked, cussing, speaking idol talk” and inmates who are “homosexuals and predators”—make it impossible for him to meet his “holy obligation for cleanliness in prayer for Jumah”...   

Lozano’s second RLUIPA claim, alleges that the TDCJ defendants burdened his religious liberty by denying him a private cell to pray..... Lozano alleges... that other inmates in his cell intruded into his prayer space and tried to provoke him to fight them during his attempts to pray....

Lozano’s third RLUIPA claim involves an alleged lack of access to religious programming and instruction, namely, Taleem and Quranic studies. ...

In his § 1983 claim, Lozano contends that the existence of Jewish- and Native-American-designated units, and the absence of a Muslim-designated unit, constitutes a neutrality problem and violates the Establishment Clause.  

Lozano also alleges that the TDCJ’s faith-based dormitories have a curriculum that requires inmates to attend Christian-based classes, despite the faith-based dorms being nominally open to inmates of all religions. ...

... [W]e reverse the district court’s order granting summary judgment on Lozano’s RLUIPA claims... and vacate and remand for further consideration....

The district court held that Lozano failed to demonstrate a genuine issue of material fact on whether the absence of a Muslim-designated unit or dorm violates the Establishment Clause.... We vacate and remand this claim to the district court to reconsider, in a manner consistent with applicable precedent and this opinion....