6th Circuit: Suit Over Marriages By Clergy Ordained Online Can Move Ahead In Part

In Universal Life Church Monastery Storehouse v. Nabors, (6th Cir., May 27, 2022), the U.S. 6th Circuit Court of Appeals allowed claims against a portion of the original defendants to move ahead in the Universal Life Church's challenge to a Tennessee law that prohibits persons receiving online ordination from solemnizing marriages.  Various defendants asserted standing and sovereign immunity defenses. Summarizing its holding, the court said in part:

No plaintiff has standing to seek relief against Governor Lee, Attorney General Slatery, District Attorney General Helper, or County Clerks Crowell, Anderson, and Knowles.... As a result, those portions of the district court’s preliminary injunction that purport to bind [them] ... are VACATED. By contrast, however, we AFFIRM the district court’s determination that plaintiffs have standing to sue District Attorneys General Dunaway, Pinkston, and Jones, along with County Clerk Nabors. We also AFFIRM the district court’s denial of these officials’ sovereign immunity at the motion-to-dismiss stage, and so we do not disturb those portions of the preliminary injunction binding [them].... Last, we REMAND what remains of this suit to the district court for further proceedings consistent with this opinion.

Massachusetts Supreme Court Hears Oral Arguments In Clergy Sexual Abuse Case

Yesterday, the Massachusetts Supreme Judicial Court heard oral arguments (webcast of arguments) in Doe v. Roman Catholic Bishop of Springfield. (Docket entries and documents.) The court's summary of the issues involved reads:

Where the trial court denied the defendant's motion to dismiss an action alleging sexual abuse by clergy, whether the defendant may pursue an interlocutory appeal of a ruling that neither charitable immunity nor the First Amendment provides a basis to dismiss the plaintiff's claims.

Courthouse News Service has a lengthy summary of the oral arguments.

Court Clerk Violated Rights Of Same-Sex Couples

In Ermold v. Davis, (ED KY, March 18, 2022), a high-profile case that has been pending since 2015, 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. Rejecting Davis' claim of qualified immunity, the court said: "Davis did not make a mistake. Rather, she knowingly violated the law."  Allowing plaintiffs to move ahead with their civil rights claim, the court said in part:

Ultimately, this Court’s determination is simple—Davis cannot use her own constitutional rights as a shield to violate the constitutional rights of others while performing her duties as an elected official.

The court said that a jury should decide whether plaintiffs are entitled to compensatory and punitive damages. AP reports on the decision. [Thanks to Scott Mange for the lead.] [UPDATED]

5th Circuit Denies En Banc Review In Teacher Qualified Immunity Case

In Oliver v. Arnold, (5th Cir., Dec. 15, 2021), the U.S. 5th Circuit Court of Appeals by a vote of 7-10 denied an en banc rehearing in a suit against a Texas high school teacher by a former student who refused on religious grounds to transcribe the Pledge of Allegiance as part of an assignment. The student alleges that she was retaliated against by the teacher.  The district court refused to grant summary judgment on the teacher's qualified immunity defense and a 3-judge appellate panel, in a 2-1 decision, agreed. (See prior posting). Judge Ho filed a 19-page opinion concurring the denial of an en banc  rehearing of the panel's decision. Three dissenting opinions spanning 15 pages were also filed. Among the issues raised by these are whether the teacher's motive in giving the assignment is relevant and whether the Supreme Court's flag salute cases apply to written school assignments in addition to ceremonies. 

6th Circuit Hears Arguments In Challenge To Ban On Marriage Ceremonies By Clergy Ordained Online

The U.S. 6th Circuit Court of Appeals heard oral arguments on Thursday in Universal Life Church Monastery v. Nabors. (Audio of full oral arguments). In the case, a Tennessee federal district court held that the Universal Life Church and two of its ministers have standing to challenge Tennessee's ban on solemnization of marriages by clergy who received online ordination. It also held that the state Attorney General, District Attorney Generals and County Clerks cannot claim sovereign immunity and are proper defendants. (See prior posting.)  Courthouse News Service reports on the arguments. [Thanks to Scott Mange for the lead.]

Before-School Religious Club Requirement To Play Basketball OK'd

In K.K. & K.K. v. Comer, (ED TN, Nov. 5, 2021), a Tennessee federal district court dismissed a suit brought by the married lesbian mothers of a middle school student challenging a before-school basketball program which allowed students to participate only if they also participated in the Teens For Christ Club. The court dismissed the claim against the Knox County Board of Education, saying in part:

Plaintiff’s allegations only suggest that a policymaker was aware of the existence of the Teens for Christ Club, but Plaintiff’s allegations do not go so far as to make it plausible that a final policymaker was put on notice of ongoing unconstitutional conduct like the alleged condition precedent.

The court also found that plaintiffs had failed to allege sufficient facts to support their claim that the school board failed to adequately train employees.

In addition, the court went on to dismiss the Establishment Clause claim brought against the physical education teacher involved on qualified immunity grounds, saying in part: 

Defendant Comer argues that the Court must assume that he was reading from the Bible and proselytizing to voluntary participants of the Teens for Christ Club and simply allowed those participants to shoot basketballs in the gymnasium before school. Lastly, Defendant Comer asserts that while he was allegedly reading from the Bible to the voluntary participants, he was lawfully exercising his own First Amendment rights....

Plaintiff cites to no caselaw clearly establishing that it is patently unconstitutional for a teacher like Defendant Comer to allow a religious school club to use the school gymnasium to shoot basketballs outside of regular school hours.

European Court Upholds Vatican's Immunity From Suit In Member-State Courts

In J.C. and Others v. Belgium, (ECHR, Oct. 12, 2021) (full text in French) (press release in English) the European Court of Human Rights in a 6-1 Chamber judgment held that Belgian courts acted properly in recognizing immunity of the Holy See from jurisdiction of domestic courts. At issue was a suit by 24 Belgian, French and Dutch nationals who alleged that as children they were abused by priests. They filed a class action for damages contending that the Church dealt with its sexual abuse problem in a structurally deficient manner. After the dismissal by Belgian courts, 20 of the plaintiffs were able to obtain compensation through the Church's own arbitration center for sexual abuse claims.

Woman Required To Remove Hijab Loses Suit Against Security Guard and County

In Niblett v. Universal Protection Service, LP, (CD CA, Oct. 5, 2021), a California federal district court dismissed a damage action by a Muslim woman who was required by a security guard to remove her hijab in order to enter Los Angeles County's Department of Public Social Services building. The court dismissed on qualified immunity grounds the suit against the security guard and his employer that were hired to provide security for the county building, saying in part:

Assuming that Rodriguez and UPS were acting under color of state law when they exercised their authority to control access to a County building, which the Court does not decide, Plaintiff has not alleged a violation of any clearly established First Amendment right. Plaintiff ... cites no authority whatsoever holding that requiring someone to remove a hijab to pass through a metal detector violates the First Amendment.

Plaintiff's suit against the County was dismissed for failure to show a policy or practice of constitutional violations, saying in part:

Plaintiff does not allege that before her encounter with Rodriguez any County employee or agent had ever forced a Muslim woman to remove her hijab in any context, much less that County employees and agents had a widespread practice of requiring Muslim women to remove their hijabs in order to pass through security screenings at County buildings. Similarly, she does not allege facts suggesting that the County knew of such a practice and endorsed it or had reason to know further training was required about allowing hijabs to be worn through metal detectors.

Kentucky Governor Has Qualified Immunity From Church's Damage Suit Over COVID Orders

In Pleasant View Baptist Church v. Beshear, (ED KY, Sept. 30, 2021), a Kentucky federal district court held that Kentucky's governor has qualified immunity from a damage action against him brought by a church that objected to his COVID Orders that temporarily suspended in-person classes in public and private schools. Plaintiff sought compensatory and punitive damages. The court said in part:

After examining the applicable precedent, particularly in light of a global pandemic, Pleasant View cannot demonstrate that Governor Beshear’s issuance of Executive Order 2020-969 violated a clearly established constitutional right, and qualified immunity will be granted on that basis. In fact, courts across the country have addressed qualified immunity for government officials at the 12(b)(6) stage regarding Covid-19 measures and found government officials to be immune from suit in their personal capacities.

The court found that plaintiff's claims for declaratory relief are moot.

Vegetarian Leafleter Loses Suit Against Police and City

In a Sept. 24, 2021 Order, a Louisiana federal district court accepted the recommendation set out in the magistrate judge's opinion in Hershey v. City of Bossier City, (WD LA, Aug. 23, 2021), and dismissed a suit against the city and two police officers. At issue was police conduct in ordering plaintiff to stop distributing leaflets on a public sidewalk outside an arena at which a Christian rock concert was being held. Plaintiff was distributing literature from the Christian Vegetarian Association. The court held that plaintiff had adequately alleged that the police were given unbridled discretion and engaged in viewpoint discrimination. However the court dismissed plaintiff's claims, summarizing its reasons in part:

[T]he city police officers are entitled to dismissal based on qualified immunity because Plaintiff has not made an adequate showing of clearly established law in the context of this case. The City of Bossier City is entitled to dismissal because the amended complaint does not allege sufficient facts to plead an actionable Monell claim of municipal liability.

Muslim Woman Can Move Ahead With Suit Over Required Removal Of Hijab For Booking Photo

 In Chaaban v. City of Detroit, (EDMI, Sept. 7, 2021), a Muslim woman who was forced to remove her hijab for a booking photograph after her arrest sued the city of Detroit, the corrections department and corrections officials. The court held that corrections officials are not entitled to qualified immunity from the claim for damages stemming from a violation of 1st Amendment rights, saying in part:

Plaintiff’s allegations are sufficient to show the MDOC Defendants were “on notice” that their policy violates a Muslim woman’s right to freely exercise her religion. Plaintiff alleges she “made her dissent and protest to the forceful removal of her hijab extremely clear”.... Moreover, it defies logic that officers operating in a facility in Detroit, near one of the nation’s largest Muslim communities, would not be aware of the religious significance of the hijab.

The court went on to hold that plaintiff adequately states a claim for injunctive and declaratory relief under RLUIPA as well as a claim for broader relief under 42 USC §1983 for violation of the 1st Amendment's free exercise clause. In refusing to dismiss plaintiff's claim against the city of Detroit, the court said in part:

The issue here is whether the City of Detroit can be held liable for a policy which did not originate with the City, but which has been alleged to be enforced by the City and its officers under the authority of the interagency agreement between the City of Detroit and MDOC....  [T]he City of Detroit was aware of the Photograph Policy and promulgated that policy or, at a minimum, adopted “a custom of tolerance or acquiescence of federal rights violations.”

The court held, however, that "there is no independent damages remedy against a municipality for violations of the Michigan Constitution."

Court Sorts Out Standing Issues And Substantive Challenges To Vermont Town Tuition Program

In Valente v. French, (D VT, Aug. 16, 2021), students and their parents sued various school agencies and districts challenging their policy of refusing to pay tuition to religious schools under Vermont's Town Tuition Program. Under that program, school districts that do not operate their own high schools pay tuition for students to attend other schools. However, sectarian schools are excluded unless there are adequate safeguards against the use of the tuition funds for religious worship. The court held that plaintiffs have standing to sue various state agencies, having alleged that they have not taken appropriate steps to prevent school districts from discriminating against religion in the Town Tuition Program. However the court found no standing to sue supervisory unions made up of local school boards which have no responsibility for the tuition payments.

The court went on to hold that plaintiffs have adequately alleged an equal protection claim and (except for one plaintiff) a free exercise claim against the state defendants, but have not adequately alleged an Establishment Clause or substantive due process claim. Eleventh Amendment defenses were also rejected.

In a companion case, A.H. v. French, (D VT, Aug. 16, 2021), students, parents and the Catholic Diocese sue challenging the refusal to allow Rice Memorial High School, a Catholic high school, to participate in the Town Tuition Program. The court held that the parents have standing to sue the state Agency of Education and its secretary, saying that plaintiffs allege these defendants set policy and directed school districts to exclude religious schools and their students. It also rejected 11th Amendment defenses by the head of the Agency. However the court held that the Diocese of Burlington lacks standing to assert the interests of parents who wish to send their children to Rice.

10th Circuit: Muslim Inmate Can Move Ahead On Claim That He Was Forced To Shave Beard

In Ashaheed v. Currington, (10th Cir., Aug. 10, 2021), the U.S. 10th Circuit Court of Appeals reversed a Colorado federal district court's dismissal of a Muslim inmate's free exercise and equal protection claims. The Colorado corrections center requires inmates to shave their beards at intake but provides an exemption for inmates who wear beards for religious reasons. Plaintiff says he repeatedly asserted this exemption, but that Defendant-- motivated by anti-Muslim animus-- forced him to shave.

The court rejected Defendant's qualified immunity defense, saying: "The constitutional violation alleged here was clear beyond debate." The court concluded in part:

Sergeant Currington’s refusal to follow the Center’s beard-shaving policy and grant Mr. Ashaheed a religious exemption, when he previously accommodated the religious needs of non-Muslims under the Center’s personal-effects policy, shows that he burdened Mr. Ashaheed’s religion in a discriminatory and nonneutral manner.

10th Circuit: Jail Chaplain Succeeds On Qualified Immunity Grounds In Suit Over Religious Diet

In Ralston v. Cannon, (10th Cir., Aug. 9, 2021), the U.S. 10th Circuit Court of Appeals held that a suit by a Messianic Jewish inmate should be dismissed on qualified immunity grounds. The suit challenged jail Chaplain Hosea Cannon's denial of plaintiff's request for a kosher diet. The court said in part:

When Mr. Cannon denied the kosher diet request, it was not clearly established that his conduct violated the Free Exercise Clause of the First Amendment. More specifically, the law was not clearly established that, even if Mr. Cannon did not act with a discriminatory purpose, his denial of a kosher diet could effect a violation of Mr. Ralston’s free-exercise rights.

10th Circuit Rejects Qualified Immunity Defense In Suit By Native American Inmates

In Williams v. Hansen, (10th Cir., July 21, 2021), the U.S. 10th Circuit Court of Appeals held that a suit by Native American inmates against prison officials should not have been dismissed on qualified immunity grounds. Banning Native American religious services for at least 9 days and the use of tobacco for services for 30 days could have violated a clearly established constitutional right of prisoner to freely exercise their religious beliefs.

Firefighter Loses Suit Over Refusal To Be Photographed

In Swartz v. Sylvester, (D MA, June 28, 2021), a Massachusetts federal district court dismissed a damage action brought by a firefighter who was disciplined after he refused, based on his personal Christian religious beliefs, to sit for an in -uniform photograph because it might be used for promotional purposes, and not just for ID tags and cards. The court said in part:

[T]he order was both facially neutral (and neutral in light of the totality of the circumstances) and generally applicable. Therefore, Sylvester must show only a “rational basis” for the policy....

The court also found qualified immunity:

even assuming that Swartz’s rights under the Free Exercise Clause were in fact violated, the legal contours of those rights were not sufficiently clear that a reasonable official would have understood that what he was doing violated them. 

4th Circuit: Governor and Attorney General Were Wrong Defendants In Challenge To Maryland Conversion Therapy Ban

In Doyle v. Hogan, (4th Cir., June 15, 2021), plaintiffs raised free speech and free exercise of religion challenges to Maryland's ban on mental health professionals engaging in conversion therapy with minors. The district court had held that the ban did not violate free speech or free exercise protections. (See prior posting.) The U.S. 4th Circuit Court of Appeals held that it could not reach the "interesting First Amendment issues" that are raised because defendants-- the Governor and Attorney General of Maryland-- have 11th Amendment immunity from suit. Neither defendant has the necessary connection to enforcing the statute required to invoke the immunity exception set out in Ex parte Young. So the court vacated the district court's 1st Amendment rulings and remanded the case for the district court to decide whether it will permit plaintiffs to file an amended complaint. In a press release, Liberty Counsel announced that it will seek to file an amended complaint  to list the State Board of Professional Counselors and Therapists as a defendant.

Challenge To Bible In Schools Program Survives Motion To Dismiss

In Freedom From Religion Foundation, Inc. v. Mercer County Board of Education, (SD WV, March 26, 2021), a West Virginia federal district court denied a motion to dismiss filed by a school principal in an Establishment Clause challenge to the county's Bible in the Schools program. The court also found that it is impossible to determine at this stage of the case whether the principal is entitled to qualified immunity.

8th Circuit: No Qualified Immunity On Christian Student Group's Free Speech Claim

In Business Leaders In Christ v. University of Iowa, (8th Circuit, March 22, 2021), the U.S. 8th Circuit Court of Appeals held that the district court erred in granting qualified immunity to the individual defendants on plaintiff's free speech and expressive association claims. Plaintiff claims that the University selectively applied its human rights policy to prevent it from becoming a recognized student organization because the organization required its leaders to sign a statement of faith that would disqualify individuals on the basis of sexual orientation and gender identity. The court held that it is clearly established that a nondiscrimination policy neutral on its face violates a student group’s rights to free speech and expressive association if not applied in a viewpoint-neutral manner. Two judges held, however, that the district court correctly granted qualified immunity on plaintiff's free-exercise claim.

Judge Kobes dissented in part, contending that University officials should also not be granted qualified immunity on the free-exercise claim, saying in part:

[S]tate organizations may not target religious groups for differential treatment or withhold an otherwise available benefit solely because they are religious. That is what happened here. The individual defendants may pick their poison: they are either plainly incompetent or they knowingly violated the Constitution. Either way, they should not get qualified immunity.

Courthouse News Service reports on the decision.

3rd Circuit: State Legislators Have Immunity In Suit By Islamic Group Over Blocking Its Land Purchase

In HIRA Educational Services North America v. Augustine, (3d Cir., March 15, 2021), a consulting agency for Islamic educational groups sued, among others, three Pennsylvania state legislators for actions that prevented the agency from purchasing state land to use for a youth intervention center and Islamic boarding school. Plaintiffs claim that the legislators' actions were discriminatory and violated RLUIPA and the Pennsylvania Religious Freedom Protection Act. The legislators claimed absolute and qualified immunity as a defense.

Plaintiffs pointed to the following actions by defendants:

(1) introducing a resolution to divest [the Pennsylvania Department of General Services] of its authority to sell the property; (2) co-authoring a letter to Governor Wolf describing their concerns...; (4) making public statements against the sale....; (6) meeting with the Secretary of DGS to try to persuade him to halt the sale....

The court held that absolute legislative immunity extends to acts that are "quintessentially legislative" or are integral steps in the legislative process, such as offering resolutions, voting, conducting legislative investigations and writing committee reports, and concluded:

Vogel’s introduction of Senate Resolution 154 and Sainato and Bernstine’s presentation of it to the House were quintessentially legislative activities.... Absolute legislative immunity also applies to the Legislators’ letter to Governor Wolf and Bernstine’s calls to HIRA because both are examples of protected legislative factfinding....

In addition ..., HIRA claimed the Legislators made disparaging public comments about HIRA, met with the DGS Secretary in an attempt to get DGS to cancel the sale to HIRA, and gave preferential treatment to the subsequent purchaser of the property. These are most accurately described as political “errands” or “speeches delivered outside [of] Congress,” so the Legislators are not entitled to absolute immunity for those activities.... 

[However] qualified immunity shields officials from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 

HIRA’s claims against Vogel and Sainato fail because HIRA has not pointed to any precedential case prohibiting legislators from speaking against the sale of state-owned property or from extending preferential treatment to certain recipients of government contracts.