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.

Supreme Court Asked to Review Decision on Opting Students Out of Instruction on Gender and Sexuality

A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in Mahmoud v. Taylor, (Sup. Ct., cert. filed 9/12/2024). Petitioners seek review of a 2-1 decision by the U.S. 4th Circuit Court of Appeals in a challenge to a school board's refusal to allow parents to opt their children out of exposure to a group of LGBTQ inclusive books. The parents contend that refusal to provide an opt out alternative violates their religious free exercise rights. The 4th Circuit affirmed a Maryland federal district court's refusal to grant a preliminary injunction. (See prior posting.). Becket Fund issued a press release announcing the filing of the petition for review.

Maryland Supreme Court Hears Arguments in Challenge to Child Victims Act

 On Tuesday, the Maryland Supreme Court heard oral arguments in three related cases that raise the question of whether the Maryland Child Victims Act of 2023 impermissibly abrogated a vested right created by a 2017 statute. The 2023 Act eliminated the statute of limitations for damage actions alleging sexual abuse while the victim was a minor. The cases heard by the court are Key School, Inc. v. Bunker (video of oral argument); Board of Education of Harford County v. John Doe (videos of oral argument on constitutional question and on standing); and Roman Catholic Archbishop of Washington v. John Doe (video of oral argument). AP reports on the oral arguments. [Thanks to Thomas Rutledge for the lead.]

4th Circuit: Denial of Opt-Out From LGBTQ-Friendly Books Did Not Violate Parents' Free Exercise Rights

In Mahmoud v. McKnight, (4th Cir., Maay 15, 2024), the U.S. 4th Circuit Court of Appeals in a 2-1 decision affirmed a Maryland federal district court's denial of a preliminary injunction in a challenge to a school board's refusal to allow parents to opt their children out of exposure to a group of LGBTQ inclusive books. The parents contended that refusal to provide an opt out alternative violates their religious free exercise rights. The majority said in part:

As an initial matter, there’s no evidence at present that the Board’s decision not to permit opt-outs compels the Parents or their children to change their religious beliefs or conduct, either at school or elsewhere....

The Parents do not really take issue with the foregoing conclusion; instead, they argue that the Board’s decision nonetheless coerces religious exercise by compelling them to expose their children to views that are at odds with their religious faith....

Supreme Court precedent requires some sort of direct or indirect pressure to abandon religious beliefs or affirmatively act contrary to those beliefs....

We understand the Parents’ contention that the Storybooks could be used in ways that would confuse or mislead children and, in particular, that discussions relating to their contents could be used to indoctrinate their children into espousing views that are contrary to their religious faith. But none of that is verified by the limited record that is before us....

Put simply, we cannot conclude that a policy requiring the presence of an individual in the classroom when these materials may be read ipso facto creates an impermissibly coercive environment....

Judge Quattlebaum dissented, saying in part:

 ... [W]hen the onion layers of the board’s argument are peeled back, the board seems to question the relative importance of the parents’ religious beliefs that their children should not be taught with the books the board required be used to promote diversity and inclusivity to the LGBTQ+ community. To explain, the board only denied opt-outs for instruction involving those books. So, despite disclaiming that it is doing so, the board’s arguments, which the district court adopted, really view the parents’ religious objections to the texts as less important than the board’s goals to improve inclusivity for the LGBTQ+ community. But this is the precisely the sort of value judgment about parents’ religious claims that courts must not make....

Bloomberg Law reports on the decision.

Election of Student School Board Member by Public School Students Did Not Violate Free Exercise Clause

 In Kim v. Board of Education of Howard County, (4th Cir., Feb. 28, 2024), the U.S. 4th Circuit Court of Appeals affirmed the dismissal of equal protection and free exercise challenges to the procedure that Howard County, Maryland uses to select a high school student to be one member of its 8-member school board. The student member is chosen by a vote of public-school students in grades 6 through 11. One of the plaintiffs contended that this process violates the Free Exercise clause because it excludes plaintiff's son who attends a Catholic school from participating in the selection process. The court concluded that the selection process is neutral and generally applicable and therefore subject only to rational basis review. The court said in part: 

Maryland’s law does not consider religious motivation but depends on public school enrollment. To the extent the law has an effect of excluding religious students, it does so “in spite of” and not “because of” those students’ religious reasons for forgoing public education.... The law is neutral. 

It is also generally applicable.,,,  Maryland’s law makes no distinction between religious and secular. It bars non-public-school students, religious and nonreligious alike, from choosing or serving as the student member.....

Howard County does not let any private schools, religious or nonreligious, participate in selecting the board of education student member.... Strict scrutiny plays no role in judging this textbook neutral and generally applicable selection criterion.....

Without the benefit of heightened judicial scrutiny, the parents have failed to state a viable claim under either the Equal Protection Clause or the Free Exercise Clause under rational basis review.

Questions of Fact Remain in Challenge to Application Process for Prison Chaplaincy Supervisor

 In Bridges v. Prince Georges County, Maryland, (D MD, Feb. 1, 2024), a Maryland federal district court refused to grant summary judgment for either plaintiff or the defendants in a suit by a Muslim chaplain alleging that his 1st Amendment rights were violated by the application process for a paid supervisory position at the county detention center.  At issue was a "Statement of Applicant's Christian Faith" that was part of the application form created by Prison Ministry of America (PMA) which, under contract with the county, was to provide a non-denominational chaplain supervisor for the jail.  After finding that plaintiff had standing and that PMA was a state actor during the hiring process, the court said in part:

Because a reasonable jury could find the Statement of Christian Faith to be “a religious test” ..., summary judgment cannot be granted in favor of Defendants on this count.  However, Defendants’ assertion that the Statement was optional creates a sufficient dispute of material fact as to render summary judgment inappropriate in Plaintiff’s favor, as well....

Regardless of whether the Statement of Christian Faith was mandatory or not, the inclusion of such a statement, especially given that it appeared on its face to be required, clearly employed a non-neutral policy as it specifically allowed for participation by Christians and no others.  This non-neutral practice, then, could be viewed by a reasonable jury as placing a burden on Plaintiff’s religious expression by denying him the ability to apply for a job that he otherwise would have been able to seek, due to his religion....  As such, a reasonable jury could find that this burdened Plaintiff’s freedom of expression and that the policy was not narrowly tailored to meet a compelling government interest, and thus summary judgment cannot be granted in favor of Defendants.  However, the question of whether the inclusion of the Statement of Christian Faith in the application burdened Plaintiff’s religious exercise, given Defendants’ assertion that the Statement of Christian Faith was not actually required, creates a genuine dispute of material fact, and, therefore, summary judgment cannot be granted in favor of Plaintiff, either.

Sign Ordinance Restricting Anti-Abortion Protester Does Not Violate 1st Amendment

In Roswell v. Mayor and City Council of Baltimore, (D MD, Jan.19, 2024), a Maryland federal district court dismissed a suit by an anti-abortion sidewalk counselor who communicates with women entering and exiting a Planned Parenthood Clinic. A city ordinance prevented plaintiff from using A-frame signs in front of the clinic to communicate his religious convictions about abortions as well as information about alternatives to abortion. A permit to erect such signs can be obtained only by the owner of the property or an agent of the owner. Finding that the city ordinance did not violate plaintiff's free speech rights, the court said in part:

Plaintiff asks this Court to find that zoning ordinances cannot distinguish between the owners and tenants of adjacent properties utilizing A-frame signs for non-residential uses and those with no such property interest without running afoul of First Amendment principles. Fatal to Roswell’s position is the simple fact that the regulations do not “target speech based on its communicative content.” ...

The court also rejected plaintiff's free exercise of religion challenge, saying in part: 

Here, the challenged ordinances are unconcerned with religious exercise. They neither prohibit nor compel religious conduct. And even if the ordinances did burden religious exercise, a law that “incidentally burden[s] religion” does not violate the Free Exercise Clause if it is “neutral and generally applicable.”

Baltimore Catholic Archdiocese Files For Bankruptcy Reorganization

The Archdiocese of Baltimore Announced last Friday that it is filing for Chapter 11 bankruptcy protection in advance of the Oct. 1 effective date of a Maryland Child Victims Act of 2023 which removes the statute of limitations for civil actions by victims of sexual abuse that occurred while the victim was a minor. In the Announcement, Archbishop Lori said in part:

... I have made the decision I believe will best allow the Archdiocese both to equitably compensate victim-survivors of child sexual abuse and ensure the local Church can continue its mission and ministries.

In an interview with Catholic Review, the Archbishop said in part:

... [S]ince the new law does not provide a defined period of time or “lookback window” for victim-survivors to file suits, as many other states have done, the archdiocese could have faced many years of liability for anything that happened over the course of the last 80 years. The Chapter 11 reorganization process creates a one-time window for victims of past cases of abuse to file a claim and participate in the settlement process. Once that process is complete, no future lawsuits or claims will be allowed in historic cases of abuse.

MD Supreme Court: State Law Sex Discrimination Ban Does Not Include Sexual Orientation Discrimination

In Doe v. Catholic Relief Services, (MD Sup. Ct., Aug. 14, 2023), the Maryland Supreme Court, responding to certified questions from a federal district court, refused in interpreting state law to follow the analogous holding of the U.S. Supreme Court in its Title VII Bostick decision.  The Maryland court held that, in light of the separate prohibition on sexual orientation discrimination in state law, the ban on sex discrimination in the Maryland Fair Employment Practices Act does not also cover discrimination on the basis of sexual orientation. It went on to hold that in light of the specific ban on pay disparities based on sex or gender identity, the Maryland Equal Pay for Equal Work Act does not bar pay disparities based on sexual orientation. Finally the court held that the exemption in the Maryland Fair Employment Practices Act for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion, sexual orientation, or gender identity to perform work connected with the activities of the religious entity" covers "claims brought by employees who perform duties that directly further the core mission (or missions) of the religious entity." It is not co-extensive with the ministerial exception doctrine.

Justice Hotten, joined by Justice Eaves, filed a dissenting opinion contending that the ban on sex discrimination in both statutes includes sexual orientation discrimination. They would also read the religious institution exemption more narrowly than the majority, contending that it only applies when a nexus exists between the employer’s religious activities and the work that an employee performs.

The underlying case that led to the certified questions involved a complaint by a Program Data Analyst employed by Catholic Relief Services who was denied spousal health benefits for his same-sex spouse.

[Thanks to Arthur Spitzer for the lead.]

Sign Permit Did Not Infringe 1st Amendment Rights of Anti-Abortion Protester

In Roswell v. Mayor & City Council of Baltimore, (D MD, April 28, 2023), a Maryland federal district court denied a preliminary injunction to plaintiff who challenged the requirement that he obtain a permit in order to place A-frame signs outside a Planned Parenthood Clinic as part of his anti-abortion protest. Rejecting plaintiff's free speech claim, the court concluded that the permit ordinance is content neutral, is narrowly tailored to serve a significant governmental interest, and that there are ample alternatives for plaintiff to communicate his message. Rejecting plaintiff's free exercise claim, the court said in part:

Here, the challenged ordinances are unconcerned with religious exercise; they neither prohibit nor compel religious conduct. Importantly, Plaintiff has made no allegation that either the Police or Zoning ordinance was enacted for the purpose of suppressing religious expression. Further, as discussed, Plaintiff has been freely engaging in protest activity outside of the Planned Parenthood. Plaintiff contends that “his religious conviction compels him to use every effort available to dissuade women” from obtaining abortions, and he has continued to freely express his religious beliefs in front of the facility, merely without the use of A-frame signs. 

Maryland Attorney General Releases Report on Child Sexual Abuse in Baltimore Archdiocese

Maryland's Attorney General today released a Report on Child Sexual Abuse in the Archdiocese of Baltimore (full text). The 463-page report details abuse by each of 156 individuals , with the names of ten of the individuals redacted. The Report says in part:

As the case descriptions in this Report make clear, from the 1940s through 2002, over a hundred priests and other Archdiocese personnel engaged in horrific and repeated abuse of the most vulnerable children in their communities while Archdiocese leadership looked the other way. Time and again, members of the Church’s hierarchy resolutely refused to acknowledge allegations of child sexual abuse for as long as possible. When denial became impossible, Church leadership would remove abusers from the parish or school, sometimes with promises that they would have no further contact with children. Church documents reveal with disturbing clarity that the Archdiocese was more concerned with avoiding scandal and negative publicity than it was with protecting children.

WBAL's news story has additional details.

Maryland County's Election Process for Student School Board Member Survives Free Exercise Challenge

 In Kim v. Board of Education of Howard County, (D MD, Nov. 18, 2022), a Maryland federal district court rejected both equal protection and free exercise challenges to the manner in which the student member of the 8-member Howard County School Board is selected. In an elaborate process, the final step in the selection of the student member is a vote by public school students in grades 6 to 11. In rejecting the free exercise claim, the court said in part:

Plaintiffs argue that the Student Member selection process violates the First Amendment’s Free Exercise Clause because it bars certain students from voting for the Student Member “solely because they attend a religious school or are homeschooled for religious reasons.”... This claim will be dismissed because Plaintiffs have not plausibly alleged that the Student Member statute burdens religion—and even if it did, the law is neutral and generally applicable.

The court also rejected equal protection claims that the process violated the one-person one-vote mandate and uniformity rules.

Maryland AG Asks Court to Approve Release of Report on Clergy Abuse

 A 35-page motion (full text) was filed yesterday by the Attorney General of Maryland in a Maryland state trial court seeking court approval to release a 456-page Report on Clergy Abuse in Maryland.  In re Special Investigation No. CID 18-2673 (Baltomore City Cir. Ct., filed 11/17/2022).  The Report that is the subject of the motion is the product of a three-and-one-half year grand jury investigation into sexual abuse by priests assigned to the Archdiocese of Baltimore and the Archdiocese's response to that abuse. Court approval is needed in order to release grand jury material. According to the motion:

The Report identifies 115 priests that were prosecuted for sex abuse and/or identified publicly by the Archdiocese as having been "credibly accused" of sexual abuse. The Report includes an additional 43 priests accused of sexual abuse but not identified publicly by the Archdiocese....

As shown in the Report, both boys and girls were abused, with ages ranging from preschool through young adulthood....

Washington Post reports on the AG's motion.

Anti-Abortion Sidewalk Counselor Challenges Sign Permit Requirement

Suit was filed this week in a Maryland federal district court alleging that Baltimore's sign permit ordinance violates plaintiff's free speech and free exercise rights. The complaint (full text) in Roswell v. City of Baltimore, (D MD, filed 10/10/2022), seeks a preliminary injunction to prevent the city from requiring plaintiff to obtain permits in order to use A-frame signs when engaging in religiously-motivated sidewalk anti-abortion counseling at a Planned Parenthood facility. Thomas More Society issued a press release announcing the filing of the lawsuit.

School Policy On Treatment of Transgender Students Upheld

In Parents 1 v. Montgomery County Board of Education, (D MD, Aug. 18, 2022), a Maryland federal district court upheld Guidelines promulgated by Montgomery County, Maryland school officials on dealing with transgender and gender non-conforming students.  Parents particularly challenge the portion of the Guidelines that advise school personnel not to disclose a student’s gender identity to their parents without the student’s consent, especially when the student has not yet disclosed their gender identity to their parents, or if the student either expects or knows their parents are unsupportive. Plaintiffs contend that this violates their parental rights protected by the due process clause of the 14th Amendment. The court said in part:

My review of the Guidelines reveals that the Plaintiff Parents’ argument is based on a selective reading that distorts the Guidelines into a calculated prohibition against the disclosure of a child’s gender identity that aims to sow distrust among MCPS students and their families. In reality, the Guidelines instruct MCPS staff to keep a student’s gender identity confidential until the student consents to the disclosure out of concern for the student’s well-being, and as a part of a more comprehensive gender support plan that anticipates and encourages eventual familial involvement whenever possible....

The court concluded that the Guidelines are subject only to rational basis review. It went on to say that even if it were to apply strict scrutiny, the Guidelines would still be upheld because the state's interest in safeguarding a minor's physical and psychological well-being is compelling. The court also dismissed various claims under Maryland law. WTOP News reports on the decision.

No Church Autonomy Defense To Catholic Organization's Sexual Orientation Discrimination

In Doe v. Catholic Relief Services, (D MD, Aug. 3, 2022), a Maryland federal district court granted summary judgment in favor of plaintiff who was denied spousal health insurance coverage for his same-sex husband. Rejecting a church-autonomy defense, the court said in part:

CRS insists that any judicial inquiry into this case inevitably requires an inquiry into matters of Catholic faith and doctrine. This is not so; this case concerns a social service organization's employment benefit decisions regarding a data analyst and does not involve CRS's spiritual or ministerial functions.

The court held that Catholic Relief Services violated Title VII, and that the exemption in Title VII for religious organizations only applies to discrimination by them on the basis of religion. It also held that RFRA does not provide a defense because it applies only to claims against the government. The court also found no First Amendment violation, saying in part:

Our Constitution's solicitousness of religious exercise is not carte blanche for any religious institution wishing to place itself beyond the reach of any neutral and generally applicable law. This court need not engage in a strict scrutiny analysis that would apply if a truly comparable secular institution were being treated favorably compared to CRS.

The court went on to find violations of the federal and state Equal Pay Acts, and ordered certification to the state court of a question of coverage by Maryland's Fair Employment Practices Act.

No RLUIPA Or Free Exercise Violation In Denying Sewer Service To Proposed Church Building

In Canaan Christian Church v. Montgomery County Maryland, (4th Cir., March 22, 2022), the U.S. 4th Circuit Court of Appeals held that Montgomery County did not violate a church's rights under RLUIPA or the 1st Amendment when it refused to extend public sewer lines to properties on which the church proposed to construct a new larger building for its congregation. The land use and water plans covering the properties provided that no public sewer service would be permitted (except for public health requirements). The church's purchase contracts for the properties were contingent on the county's approval of sewer service. The court said in part:

Because Appellants were well aware of the difficulties in development of the Property when they entered into the contract to purchase the Property, they could not have a reasonable expectation of religious land use. Further, the land use restrictions are rationally related to the government’s interest in protecting the region’s watershed.

A concurring opinion by Judge Richardson took issue with some of the analysis in the majority opinion.

Exclusion Of Christian School From Scholarship Program Violated Its Free Speech Rights

In Bethel Ministries, Inc. v. Salmon,(D MD, Dec. 10, 2021), a Maryland federal district court held that the free speech rights of a Christian elementary school were violated when the state disqualified it from participating in a scholarship program for disadvantaged students attending private schools. The school lost its eligibility because its handbook set out a policy inconsistent with sexual orientation non-discrimination provisions. The court held that this amounted to an unconstitutional viewpoint-based condition on the school's ability to receive government funding. The court said in part:

Defendants have failed to put forth any evidence that Bethel’s policy has deterred a single prospective applicant from applying for admission at Bethel, let alone any evidence that Bethel has ever denied admission, expelled, or disciplined a student on the basis of sexual orientation.... Instead ... the record reflects that Defendants focused exclusively on the text of Bethel’s handbook....

The text of Bethel’s policy alone is not evidence of discriminatory conduct; the text of the policy is speech.... [E]xcluding Bethel ... based on the text of its admissions policy alone ... is a regulation of speech, not a regulation of conduct....

Not only was Defendants’ decision to exclude Bethel from BOOST eligibility based on Bethel’s speech, but it was based on the specific viewpoints Bethel chose to express in its admissions policy...

ADF issued a press release announcing the decision.

4th Circuit: Denial Of Church's Application For Water and Sewer Plan Amendment Violated RLUIPA

In Redeemed Christian Church of God (Victory Temple) Bowie, Maryland v. Prince George's County, Maryland, (4th Cir., Nov. 3, 2021), the U.S. 4th Circuit Court of Appeals held that the legislative amendment to the County’s Water and Sewer Plan which Victory Temple sought to recategorize its property constitutes a "land use regulation" subject to RLUIPA. It also concluded that the denial of Victory Temple's application for a recategorization imposed a substantial burden on its exercise of religion. The court concluded in part:

[T]he County never sought to show at trial that it considered alternatives — such as roadway improvements or additional road signs — before denying the Application. At bottom, we agree with the district court that the County’s denial of the Application fails strict scrutiny review. In these circumstances, the court did not abuse its discretion in granting Victory Temple the injunctive relief that is appealed from.

Right-Wing Catholic Group Sues Over Cancellation Of Its Protest Rally

Suit was filed yesterday in a Maryland federal district court by the right-wing Catholic group Church Militant against the city of Baltimore for requiring the cancellation of Church Militant's prayer rally scheduled to be held across from the U.S. Conference of Catholic Bishops Fall General Assembly. The rally was titled "Bishops: Enough Is Enough." The complaint (full text) in St. Michael's Media, Inc. v. City of Baltimore, (D MD, filed 9/13/2021), alleges that the cancellation violates the group's free speech, free exercise, free association and Establishment Clause rights, saying in part:

The purpose of the rally is to engage in protected speech criticizing elements of the power structure of the Catholic Church in a situation where the speech would reach the Church's leadership.

Baltimore Brew reports on the lawsuit.