Christian School Sues Over Exclusion From State Funding Programs

Suit was filed on Monday in a Maryland federal district court by a preschool- 8 Christian school that was excluded from Maryland's scholarship program for low-income students, as well as the state's textbook and technology and its aging schools programs.  The complaint (full text) in Bethel Ministries, Inc. v. Salmon, (D MD, filed 6/24/2019), alleges that the school does not discriminate in admissions on the basis of sexual orientation, but that it was nevertheless disqualified because of its policy on transgender students and on same-sex marriage.  According to the complaint:

50. Faculty, staff, and students are expected to align their conduct with Bethel’s belief that marriage is the union of one man and one woman. 

51. Faculty, staff, and students are expected to align their conduct with Bethel’s belief that biological sex as either male or female is an immutable gift from God, and therefore identify with, dress in accordance with, conduct themselves in keeping with, use the pronouns associated with, and use the facilities provided for, their biological sex....

53. Bethel’s conduct policy prohibits any communication of a sexual nature, such as identifying as the opposite sex, or expressing romantic attraction towards another student.

The school alleges that disqualifying it on this basis violates its 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

False Light Invasion of Privacy Suit By Pastor Is Dismissed

In Byrd v. DeVeaux, (D MD, March 4, 2019), a Maryland federal district court dismissed on ecclesiastical abstention and ministerial exception grounds a false light invasion of privacy suit brought by Alicia Byrd, a pastor at an African Methodist Episcopal Church. Byrd sought over $14 million in damages for a report issued by the parent AME Church's Ministerial Efficiency Committee saying that she collateralized church property to build a non-profit facility without proper approval and for a letter alleging that she co-mingled church funds.  The court said in part:

Some of the independent  statements Plaintiff relies on are obviously fused with concepts of church law, polity, or doctrine, while others appear secular.... As a whole, the reports and letter constitute a matter of internal church discipline, and the statements contained within the documents are incapable of extrapolation from the overall ecclesiastical nature of the documents. Thus, Plaintiff's false light claim is barred by the ecclesiastical abstention doctrine....

Here, Plaintiff's claim is rooted in the MEC's disciplinary review of Plaintiff and decision that Plaintiff should be placed on administrative leave.... [T]he ministerial exception would apply to Plaintiff's false light claim and would provide an additional reason to grant summary judgment to Defendants.

4th Circuit Allows Church To Move Ahead With Challenges To Zoning Denial

In Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County, Maryland, (4th Cir., Feb. 7, 2019), the U.S. 4th Circuit Court of Appeals, reversing a Maryland federal district court, refused to dismiss a church's complaint regarding zoning denials that prevented it from operating a church on land that its pastor had purchased. The court held that plaintiffs had sufficiently alleged a substantial burden on their religious practice and discrimination based on religious denomination under RLUIPA. The court said in part:

Particularly relevant to this case, a government decision influenced by community members’ religious bias is unlawful, even if the government decisionmakers display no bias themselves.

The court also vacated the lower court's dismissal of plaintiffs' free exercise, equal protection and state constitutional claims. [Thanks to Will Wsser via Religionlaw for the lead.]

Conversion Therapy Ban Challenged In Maryland, Enacted In New York

The Baltimore Sun reports that a lawsuit was filed in Maryland federal district court on Friday challenging Maryland's ban on conversion therapy for minors.  Plaintiff Christopher Doyle contends that the ban violates his free speech and free exercise rights, as well as his clients' right "to prioritize their religious and moral values above unwanted same-sex sexual attractions, behaviors, or identities."

Meanwhile, on Jan. 15, the New York state legislature gave final passage to A00576 (full text) which prohibits  mental health  professionals  from  engaging  in  sexual  orientation  change efforts with patients under the age of eighteen. NBC News says that Gov. Andrew Cuomo is expected to promptly sign the bill.

RLUIPA Suit By Chabad Challenges Demolition Order

The Baltimore Sun reports that a lawsuit was filed yesterday in a Maryland federal district court by the Chabad House serving Goucher College and Towson University alleging that authorities violated the Religious Land Use and Institutionalized Persons Act in requiring that a 2016 expansion of the Chabad House be razed because it violates a land covenant. State courts have given Chabad until mid-January to set aside funds to comply with the demolition order. According to the Sun:

In the lawsuit, Friends of Lubavitch alleges that Baltimore County officials required Chabad to take part in unnecessary hearings and issued citations that were without merit. The suit also says officials falsely claimed Chabad was operating as a “community center” instead of a residence because the Rivkins were hosting students for Shabbat dinners and Jewish instruction.

Supreme Court Agrees To Review Bladensburg Cross Case

The U.S. Supreme Court yesterday granted certiorari in two appeals stemming from the same 4th Circuit opinion. The petitions for review were granted in American Legion v. American Humanist Association (Docket No. 17-1717) and Maryland-National Capital Park and Planning Commission v. American Humanist Association (Docket No.  18-18). (Cert. granted, 11/2/2018). (Order List). In the case, the U.S. 4th Circuit Court of Appeal, in a 2-1 decision, held that the 40-foot high Bladensburg Cross that has stood for over 90 years as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) The Circuit Court, by a vote of 8-6, then denied en banc review. (See prior posting). Here is the SCOTUS blog case page for the cases, with links to filings in the case.  WTOP News reports on the grant of review.

Church's RLUIPA Zoning challenge Can Move Ahead

In Redemption Community Church v. City of Laurel, Maryland, (D MD, Aug. 8, 2018), a Maryland federal district court refused to dismiss a lawsuit brought by a small Christian church challenging the city's zoning regulations that require houses of worship located on less than one acre in a commercial zone to obtain a special zoning exception.  The church planned to operate a non-profit coffee house and a house of worship from the same property. The court held that the church had adequately stated claims for violation of RLUIPA's equal terms and non-discrimination provisions as well as various provisions of the 1st and 14th Amendments.

Synagogue Loses Challenge To Storm Water Remediation Fee

In Shaarei Tfiloh Congregation v. Mayor and City Council of Baltimore, (MD App., April 27, 2018), in a suit by a synagogue the Maryland Court of Special Appeals held that Baltimore's Storm Water Remediation Fee is an excise tax, not a property tax.  Thus the tax exemption for property used for public religious worship does not apply.  The court also held that RLUIPA is not applicable because the Storm Water Fee is not a land use regulation.

Challenge To Teaching Islam In History Curriculum Is Rejected

In Wood v. Arnold, (D MD, March 26, 2018), a Maryland federal district court dismissed a lawsuit by a high school graduate and her father complaining (1) that the school violated the Establishment Clause by teaching Islam in its World History course; (2) violated the student's free speech rights by requiring her to "confess" the Shahada; and (3) engaged in retaliation and suppression of speech in banning the student's father from school grounds after he expressed opposition to the school's curriculum. Summarizing its holding, the court said:

the First Amendment does not afford the right to build impenetrable silos, completely separating adherents of one religion from ever learning of beliefs contrary to their own, Nor, in this Court's view, does it prohibit a high school teacher from leading a purely academic study of a religion that may differ from the religious beliefs of some of his students.

Plaintiffs' Establishment Clause argument centered on a statement made by the World History teacher that "most Muslims faith is stronger than the average Christian". The court rejected plaintiffs'argument that the statement should be taken in isolation from the remainder of the curriculum, but concluded that even taken alone the statement, in the context it was made, did not violate the Establishment Clause.

Rejecting plaintiffs' compelled speech argument, the court held that requiring students to fill in the blanks in a quiz on the Shahda was merely aimed at fostering an understanding of the significance of the statements to Muslims.

Finally the court rejected the father's complaint about his exclusion from school grounds, finding that the father's statements on Facebook suggested that he was planning to cause disruption at the school.

Rabbi Has RLUIPA "Substantial Burden" Claim Standing

Congregation ARIEL Russian Community Synagogue, Inc. v. Baltimore County, (D MD, March 28, 2018), is a challenge to a zoning denial of a synagogue's plans to build a new synagogue building on property it has purchased and to use an existing house on the property as a parsonage for its rabbi.  The denial was challenged on various constitutional and statutory grounds, including under RLUIPA.  Defendants raised numerous procedural objections, including a claim that the congregation's rabbi lacks standing as a plaintiff in the lawsuit.  The court concluded that the rabbi has standing to bring a RLUIPA substantial burden challenge, saying in part:

Plaintiffs argue that Maryland recognizes oral lease agreements, and the Court ... can infer that there is an oral lease agreement between ARIEL and Rabbi Belinsky. As a result, Plaintiffs maintain that Rabbi Belinsky has a property interest in the Property. The Court agrees.

However the court held that the rabbi does not have standing to bring RLUIPA non-discrimination and equal terms claims because those provisions apply only to a religious "assembly or institution."

Church's Challenge To Zoning Denial Is Rejected

In Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County, (D MD, March 27, 2018), a Maryland federal district court dismissed RLUIPA and constitutional challenges by a church to a county's refusal to grant it a zoning variance so it could convert a home it purchased into a house of worship.  The court, in its 35-page opinion, said in part:

Plaintiffs have not plausibly pled a substantial burden claim because the record shows that Reverend Ware did not have a reasonable expectation when she bought the Property that it could be used for the Church.

Plaintiff's discrimination claim focused on the fact that the church's members were African immigrants and on objections to the nature of its ministry.  The court said in part:

Plaintiffs have not alleged facts supporting an inference that the Board acted with intentional or purposeful discrimination.

4th Circuit Denies En Banc Review On Bladensburg Cross

The U.S. 4th Circuit Court of Appeals, by a vote of 8-6, has denied an en banc rehearing on the constitutionality of the 40-foot high Bladensburg Cross that has stood for over 90 years at an intersection in Prince Georges County, Maryland. Last October a panel of the 4th Circuit, in a 2-1 decision, held the Latin Cross, created as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) Yesterday in American Humanist Association v. Maryland- National Capital Park Planning Commission, (4th Cir., March 1, 2018), the full court's denial of review was accompanied by 4 separate opinions-- one a concurring opinion and 3 dissenting opinions.

Judge Wynn's concurring opinion said in part:

To allow this Court to circumscribe the Bladensburg Cross’s meaning and power, as the Commission and its amici request, would empower this Court to diminish the Latin cross’s many years of accrued religious symbolism, and thereby amount to the state degradation of religion that the Framers feared and sought to proscribe. Indeed, were this Court to accept that the Latin cross’s predominantly sectarian meaning could be overcome by a plaque, a small secular symbol, and four engraved words, as the Commission maintains, we would necessarily grant the government—and the judiciary, in particular—broad latitude to define and shape religious belief and meaning. Surely, the Constitution does not contemplate endowing the government with such extraordinary power to determine and prescribe individual citizens’ religious beliefs and religious communities’ joint understandings, appreciations, and teachings.

Judge Wilkinson's dissent, joined by Chief Judge Gregory and Judge Agee, said in part:

The dead cannot speak for themselves. But may the living hear their silence. We should take care not to traverse too casually the line that separates us from our ancestors and that will soon enough separate us from our descendants. The present has many good ways of imprinting its values and sensibilities upon society. But to roil needlessly the dead with the controversies of the living does not pay their deeds or their time respect.

This memorial and this cross have stood for almost one full century. Life and change flow by the small park in the form of impatient cars and trucks. That is disturbance enough. Veterans Memorial Park may not be Arlington National Cemetery, but it is the next thing to it. I would let the cross remain and let those honored rest in peace.

Washington Post, reporting on the decision, says that the case will be appealed to the Supreme Court.

Small Church Challenges Zoning Changes

Yesterday a small church in Laurel, Maryland filed a federal lawsuit challenging a zoning code change that prevents it from using property it purchased for a non-profit coffee shop and house of worship.  The complaint (full text) in Redemption Community Church v. City of Laurel, Maryland, (D MD, filed 2/9/2018), alleges that the zoning changes violate its right under RLUIPA and the 1st Amendment.  It alleges in part:

4. ... the City changed its zoning code to ban non-profit businesses and to require small churches (those located on less than one acre) to go through an onerous, costly, and uncertain special exception process before locating in the C-V Zone.

5. Churches that can afford more than an acre, and numerous secular assemblies or institutions can locate in the C-V Zone as of right....

7. The City has discriminated against Redemption Community Church, treated it less favorably than similarly-situated secular organizations, substantially burdened the Church’s free exercise of religion, and infringed on the Church’s right to free speech, peaceable assembly, and equal protection in violation of the Church’s federal and constitutional rights.

ADF issued a press release announcing the filing of the lawsuit.

4th Circuit Strikes Down Baltimore's Posting Requirement For Pregnancy Centers

In Greater Baltimore Center for Pregnancy Concerns, Inc., v. Mayor and City Council of Baltimore, (4th Cir., Jan. 5, 2018), the U.S. 4th Circuit Court of Appeals held unconstitutional a Baltimore ordinance requiring any "limited service pregnancy center" to post a notice in its waiting room telling clients that it "does not provide or make referral for abortion or birth-control services."  Finding that the speech being regulated is neither commercial speech nor professional speech, the Court held that the ordinance violates plaintiffs' 1st Amendment rights.  The Court said in part:

The dangers of compelled speech in an area as ideologically sensitive and spiritually fraught as this one require that the government not overplay its hand. Without proving the inefficacy of less restrictive alternatives, providing concrete evidence of deception, or more precisely targeting its regulation, the City cannot prevail. The Baltimore ordinance, as applied to the Center, fails to satisfy heightened First Amendment scrutiny.

...This court has in the past struck down attempts to compel speech from abortion providers.... And today we do the same with regard to compelling speech from abortion foes. We do so in belief that earnest advocates on all sides of this issue should not be forced by the state into a corner and required essentially to renounce and forswear what they have come as a matter of deepest conviction to believe.

This is the second time that the case has made it to the 4th Circuit. (See prior posting.) The Baltimore Sun reports on the decision.

Church Can Move Ahead With RLUIPA Challenges To Zoning Refusal

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

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

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

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

Church Charges Zoning Denial Stemmed From Anti-African Discrimination

Mwakilishi reports on a lawsuit filed Oct. 13 in a Maryland federal district court by the Jesus Christ is the Answer Ministries challenging Baltimore County's refusal to rezone residential property purchased by the congregation for use as a church.  The church's minister is a native of Kenya and much of the congregation is African.  The suit charges that the zoning denial stemmed from opposition by neighbors to those of African heritage, in violation of the 1st and 14th Amendments as well as RLUIPA.

4th Circuit: Federal Law Does Not Entitle Disabled Students To Education In Their Religious Traditions

In M.L. v. Smith, (4th Cir., Aug. 14, 2017), the U.S. 4th Circuit Court of Appeals held that the Individuals with Disabilities Education Act (IDEA) does not require a public school system to instruct disabled Orthodox Jewish students in the customs and practices of their religion as part of the statutorily assured "free appropriate public education."  M.L.'s parents wanted his individualized education program to include instruction that would prepare M.L. for life in the Orthodox Jewish community.  The court concluded, however, that the school's only duty is to provide access to the same kind of secular education offered to others. Americans United issued a press release announcing the decision.

4th Circuit En Banc Hears Oral Arguments On Trump's Second Travel Ban

Today the U.S. 4th Circuit Court of appeals sitting en banc  (13 judges) heard oral arguments (audio of oral arguments from C-Span) in International Refugee Assistance Project v. Trump.  In the case, a Maryland federal district court granted a nationwide preliminary injunction barring enforcement of Section 2(c) of President Trump's second travel ban executive order. That section of the Executive Order imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.  The district court concluded that there is a likelihood that the travel ban violates the Establishment Clause. (See prior posting.) Washington Post reports on the oral arguments, saying in part:

... [J]udge after judge during an extraordinary two-hour hearing asked Acting Solicitor General Jeffrey B. Wall about statements during the presidential campaign and afterward in which Trump talked about a Muslim ban.

Wall said the order for a 90-day ban on foreign travelers from certain countries was simply to protect the country by increasing the vetting of those who are potentially dangerous. That is not only within the president’s authority, Wall said, it is his responsibility.

But Judge Barbara Milano Keenan said that could mean a candidate for president could call for a Muslim ban every day for a year, enact a cleverly worded plan that accomplished that on his first day in office, and have courts ignore whether that was his real purpose.

Under intense questioning, Wall acknowledged it could violate the Constitution to single out a religion for adverse treatment, but said Trump’s revised executive order was neutral.

Another Court Bars Enforcement of Trump's Second Travel Ban

As reported by Bloomberg Politics, yesterday a Maryland federal district court became the second court to bar enforcement of part of President Trump's second "travel ban" Executive Order. In International Refugee Assistance Project v. Trump, (D MD, March 16, 2017), the court issued a nationwide preliminary injunction barring enforcement of Section 2(c) of the Second Executive Order. That section imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.  The court said in part:

The Second Executive Order does not explain specifically why this extraordinary, unprecedented action is the necessary response to the existing risks. But while the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban. Thus, it is more likely that the primary purpose of the travel ban was grounded in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban. Accordingly, there is a likelihood that the travel ban violates the Establishment Clause.

4th Circuit Upholds City Policy Requiring Civil Marriage Certificate To Get Spousal Health Care

In Abdus-Shahid v. Mayor & City Council of Baltimore, (4th Cir., Jan. 4, 2017), the U.S. 4th Circuit Court of Appeals upheld Baltimore's policy of requiring city employees to submit proof of their recorded civil marriage certificate to establish a spouse as eligible for health insurance coverage. Plaintiff, a civil engineer employed by the city's Department of Transportation married his wife in an Islamic religious ceremony. They did not obtain a civil marriage license, claiming that to do so would be contrary to their religious beliefs.  The court rejected plaintiff's 1st Amendment free exercise claim, as well as his state constitutional and Title VII claims.