8th Circuit: Westboro Church Challenge To Picketing Law Should Be Dismissed As Moot

In 2014, a Missouri federal district court rejected a vagueness challenge mounted by the Westboro Baptist Church to Missouri statutes that banned protest activities within three hundred feet of a funeral. (See prior posting.)  However, while a motion to amend the judgment was still pending, the Missouri legislature repealed the statutes at issue.  In Phelps-Roper v. Koster, (8th Cir., March 4, 2016), the 8th Circuit Court of Appeals held that when the statutes were repealed, the district court should have vacated its judgment and dismissed the case as moot. It also held that the district court had improperly computed the amount of attorneys' fees that should be awarded to plaintiff.

Satanist's RFRA Challenge To Missouri Abortion Restrictions Dismissed

As previously reported, last May a member of the Satanic Temple filed a lawsuit in state court in Missouri challenging as a violation of Missouri's Religious Freedom Restoration Act the state's waiting period and informed consent requirements imposed before a woman may obtain an abortion. The complaint in Doe v. Nixon, (MO Cir. Ct., filed 5/8/2015), alleged that plaintiff has deeply held religious beliefs that her body is inviolable and subject to her will alone and that she alone decides whether to remove a non-viable fetus. Now the St. Louis Post-Dispatch reports that last month the court dismissed the case, holding that plaintiff's "pleadings fail to allege facts, which if true, state a claim for relief under the Religious Freedom Restoration Act."

Supreme Court Grants Review In Missouri Blaine Amendment Case

The U.S. Supreme Court today granted certiorari in Trinity Lutheran Church v. Pauley, (Docket No. 15-577, cert. granted 1/15/2016) (Order List).  In the case, the the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, rejected arguments that Missouri's Blaine Amendments violate the U.S. Constitution's 1st and 14th Amendments. At issue was the denial by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would have allowed it to resurface a playground at its day care and preschool facility on church premises. (See prior posting.) The petition for certiorari (full text) framed the Question Presented as follows:

Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.

SCOTUSblog's case page has links to all the briefs.

Court Allows RFRA Challenge To ACA Individual Mandate To Proceed

A Missouri federal district court yesterday refused to dismiss for failure to state a claim under RFRA a suit by a state legislator and his wife asserting their religious rights are burdened by the Affordable Care Act's mandate requiring them to purchase health insurance which includes contraceptive coverage.  In Wieland v. U.S. Department of Health and Human Services, (ED MO, Jan. 8, 2016),  Paul and Teresa Wieland, who are Roman Catholics, assert that paying for or participating in a healthcare plan that includes coverage for contraceptives, or providing such insurance coverage for their three daughters, violates their sincerely-held religious beliefs. (The daughters were 12, 18 and 19 when the suit was brought.) The court, relying on 8th Circuit precedent, said:

it is not the Court’s role to second-guess the reasonableness of a plaintiff’s sincerely-held religious beliefs....

The court concluded that while the government may be able to prove that the religious exercise burden is justified by a compelling governmental interest, that is not something plaintiffs have an obligation to disprove at this stage in order to avoid dismissal.  The court however did dismiss plaintiffs' 1st Amendment free exercise and free speech claims, as well as their substantive due process and Administrative Procedure Act claims. (See prior related posting including link to complaint.)

Priest Charging Injury From False Accusations May Proceed With Most of His Claims

This week, a Missouri federal district court handed down two decisions in a suit by a Catholic priest who claims he has been falsely accused of child sexual abuse.  According to the court:

Plaintiff Reverend Xiu Hui “Joseph” Jiang is a Chinese-born ordained Catholic priest in the Archdiocese of St. Louis. Jiang asserts that ... A.M. and N.M. falsely accused him of sexually abusing their minor son for the purpose of monetary gain. Jiang also asserts that [two] officers of the St. Louis Metropolitan Police Department, conducted an inadequate investigation of the abuse allegations and targeted plaintiff for prosecution because of his religion and ethnicity. He alleges that [the City] ... failed to properly train the officers.... Jiang further asserts that ... Survivors Network of Those Abused by Priests ... led a public smear campaign against him which included making false accusations of child molestation in the media. The criminal case against Jiang ... was voluntarily dismissed shortly before trial....

According to the complaint ... had they conducted a more thorough investigation, they would have learned that the minor child had made unfounded claims of sexual abuse in the past and that he was mentally and emotionally troubled; that defendants A.M. and N.M. had a history of making unfounded allegations against the Catholic Church for financial gain; and that there were circumstances that made it impossible for plaintiff to have committed the abuse as alleged.

In Jiang v. Porter I, (ED MO, Dec. 28, 2015), the court denied SNAP's motion to dismiss the conspiracy, defamation and infliction of emotional distress claims against it, and concluded that the lawsuit is not covered by Missouri's anti-SLAPP statute.

In Jiang v. Porter II, (ED MO, Dec. 28, 2015), the court dismissed the vicarious liability,  unconstitutional policy and practice, failure to train and supervise, and infliction of emotional distress claims against the City of St. Louis.  However the court refused to dismiss equal protection, due process, abuse of process, infliction of emotional distress and civil rights conspiracy claims against two police officers.

Muslim Student Sues Missouri Prof Over Alleged Bigoted Comments

Yesterday's Missourian reports on a lawsuit filed Nov. 30 against University of Missouri biology professor Michael Garcia by Fatma El-Walid, an observant Muslim student who was in one of Garcia's classes.  The suit, seeking $25,000 in damages, claims that the professor directed offensive and bigoted comments at the student during office hours, resulting in trauma that impacted her grades and the loss of a scholarship. According to the report:

The lawsuit alleges that ... Garcia asked El-Walid if her parents had waterboarded her "as a child in preparation for the future," wanted to know if her faith made her hate gay people and Jews, suggested she should pose as a suicide bomber and made sexually suggestive remarks, among other comments.

Garcia's lawyer says his client denies the charges.

Appeals Court: Sexual Orientation Not Covered By Missouri's Ban On Sex Discrimination In Employment

In Pittman v. Cook Paper Recycling Corp., (MO App., Oct. 27, 2015), a Missouri appeals court in a 2-1 decision held that the Missouri Human Rights Act does not bar employment discrimination on the basis of sexual orientation. At issue was a hostile work environment claim by a former male employee of a recycling company. Judge Welsh's opinion held:

The clear meaning prohibiting discrimination based upon "sex" under the Missouri Human Rights Act intended by the Missouri legislature concerns discrimination based upon a person's gender and has nothing to do with sexual orientation.

Judge Clayton in a brief opinion concurred with the result only.  Judge Gabbert dissented, saying:

Where our legislature used the broad term “sex,” and that term has been defined in many realms and most recently by the EEOC to include sexual orientation, I prefer to believe that if one is looking to the legislature for guidance, the legislature’s failure to exclude sexual orientation is more telling than its failure to act to include.

Columbia Daily Tribune reports on the decision.

County Will Consider Moving Memorial Containing Ichthus

At its meeting today, the Boone County, Missouri Commission will hear the first reading of a proposal to recommend moving of a monument, now on the county courthouse grounds, to the Columbia City Cemetery to alleviate church-sate concerns. (News Release.) As reported by the Columbia Daily Tribune, the monument, erected with private funds in 1992, is a tribute to two Boone County men killed in Operation Desert Storm. At the bottom of the monument is an Ichthus (Christian fish) symbol.  In 2014, after a complaint about the monument from Americans United, the County Commission ordered the Ichthus symbol covered with a plaque reading "Dedicated in 1992."  Now the County Commission has obtained a lengthy opinion of counsel (full text) concluding that continued location and maintenance with public funds of the memorial on the courthouse grounds would likely be found by a court to violate the Establishment Clause and church-state separation requirements of the Missouri Constitution.  Today's resolution will propose moving the monument and removing the plaque covering the Ichthus symbol. It will also consider a policy on future monuments.

Taxi Commission Rule Requiring Black Pants Violates Muslim Driver's Religious Freedom

In Naeem v. Metropolitan Taxicab Commission, (MO Cir. Ct., June 22, 2015), a Missouri trial court reversed a license suspension (which had previously been stayed by the court pending litigation) and fines that the St.Louis area taxicab commission had imposed on Muslim taxicab driver Raja Naeem who violated the commission's regulation requiring drivers to wear white shirts and black pants.  Naeem believes that his religion requires him to wear certain clothing, including white pants. The court held that the commission rule violates Naeem's religious liberty. As reported by the St. Louis Post-Dispatch, the Taxicab Commission had granted Naeem a compromise. He could wear a loose-fitting kurta instead of a shirt, if it was white and did not go below his thighs. However his pants or shalwar had to be black. The court held:

In the case at bar, Mr. Naeem's right to express his religious beliefs by his mode of dress is directly infringed by the Commission's dress code. The Missouri Constitution clearly prohibits such infringement. Further commentary would be superfluous.

The court also held that the regulation, even though a generally applicable rule, violates Naeem's First Amendment rights:

No interest other than esthetics is served by the uniform code....  Even under the reasoning of Smith... the regulation must fail. Wearing particular clothing as part of the practice of one's religion also implicates the First Amendment guaranty of freedom of speech. When both speech and religion are affected by a regulation, there must be a compelling justification. 

Student Religious Liberty Bills Await Governors' Signatures In Missouri, North Carolina

This week the North Carolina General Assembly gave its final approval, and sent to the governor for his signature, Senate Bill 370, protecting students' rights to engage in prayer and religious expression in public schools. It allows students to express religious viewpoints to other students to the same extent that students can express non-religious viewpoints, and to express religious viewpoints in classwork and homework without discrimination. It also requires student religious groups to be treated the same as non-religious groups. However students may not harass or coerce other students. The bill also sets out grievance procedures for students or parents who believe a student's religious expression rights have been infringed.

Similarly, the Missouri General Assembly passed and on May 30 sent to the governor for his signature H.B. 1303 protecting student religious liberty. It requires public schools to treat student expression of religious viewpoints in the same manner that they treat expressions of other viewpoints, and protects expressions of religious viewpoints in school work and on clothing worn to school. It gives student religious groups the same rights as non-religious groups. [Thanks to Blog From the Capital for the leads.]

$108M Damages In Faith-Healing Death Upheld

In Mansfield v. Horner, (MO App., June 17, 2014), a Missouri state appellate court upheld a wrongful death judgment of over $108 million in the faith-healing death of Misty Mansfield growing out of complications after the stillbirth of her child.  The suit was brought by Misty's parents against her husband Caleb Horner and Caleb's brother, John, who was the leader of the faith-healing sect to which Caleb and Misty belonged.  The sect, which Misty joined only when she married Caleb, also required a wife to be submissive to their husband's decisions.  Caleb convinced Misty not to go to the hospital when complications arose during her labor at home, and the breech delivery was botched by Caleb and his religious-based birth team.  Caleb's brother John arrived after the stillbirth and prayed for hours attempting to raise the child from the dead, while Misty was not treated for her vaginal cuts and an emergency team that arrived 9 hours later was denied access to Misty by Caleb. A month after the delivery, Misty died from an ongoing infection.

The appeals court rejected nine objections to the trial court's refusal to override the jury's verdict, including an objection that the suit violates the First Amendment's free exercise clause.  Rejecting that argument, the court said in part:

None of [the jury] instructions required the jury to determine the validity of the Horners' belief in faith healing. The jury never had to determine "the truth or falsity" of faith healing. Instead, the instructions required the jury to determine whether or not the Horners' actions -- particularly with respect to Caleb's actions during the home birth and John and Caleb's actions preventing Misty from seeking medical treatment following the home birth -- constituted negligence. Thus, we do not conclude that the trial court committed plain error in overruling the Horners' motion for JNOV with respect to their claim of a First Amendment violation.

Consent Decree Entered In Suit Over Devotional Exercises In School

The American Humanist Association yesterday announced the entry of a consent decree which settles its lawsuit against a Missouri school district.  AHA sued the district over devotional exercises held before the beginning of school in the classroom of a teacher who is adviser to the Christian student group. (See prior posting.) The consent decree (full text) in American Humanist Association v. Fayette R-III School District, (WD MO, May 19, 2014) requires the school district to amend its Student-Teacher Handbook in various ways and provides other relief.  As summarized in AHA's press release:

In the consent decree agreed upon by the parties, the school is permanently enjoined from promoting prayer and religious activity, and religious clubs will be given no special privileges that other clubs do not enjoy. The school district also agreed to amend its announcement policies so that they will not identify any religious activities taking place at student group meetings. Also, faculty sponsors of student groups will not be permitted to participate in religious activities of the groups. School employees will also no longer be allowed to keep religious materials in places in open view.

Missouri Court Denies TRO To Prevent Same-Sex Couples' Joint Tax Filings

In Messer v. Nixon, (MO Cir. Ct., April 4, 2014), a Missouri state court judge refused to issue a temporary restraining order to prevent state tax officials from accepting joint returns from same-sex couples. The court concluded that plaintiffs had not shown the irreparable injury necessary for issuance of a TRO.  The court said: "should the ultimate outcome of this litigation establish that such an income tax filing was improper resulting in state income taxes being illegally avoided or refunded, the State has, as it always has had, the right to challenge that filing and seek recovery." Links to all the pleadings in Messer v. Nixon at on Marriage Equality Wikia. Missouri Gov. Jay Nixon's office issued a statement after the April 4 decision, defending the Executive Order that permits same-sex joint filing as being consistent with Missouri law which requires state tax conformity to federal tax definitions.

Developments In Missouri and Michigan On Same-Sex Marriage Recognition

Here is an update on the rapidly moving developments in two states relating to recognition of same-sex marriages.

In Missouri, where a suit seeking to require the state to recognize same-sex marriages performed elsewhere is pending, last November the governor in Executive Order 13-14 directed the state Department of Revenue to accept joint tax returns from same-sex couples who are legally married in other states. This led in February to the filing of articles of impeachment (full text) against the Democratic governor by a Republican lawmaker. (See prior posting.)  In January 2014 a lawsuit was filed seeking a declaratory judgment that the Executive Order is unconstitutional and an injunction against its enforcement.  The complaint (full text) in Messer v. Nixon, (MO Cir. Ct., filed 1/14/2014) contends that the executive order is inconsistent with Missouri Constitution Art. 1, Sec. 33 that provides the only marriages that will be recognized in the state are ones between a man and a woman. Now, as the April 15 filing date for tax returns approaches,  PoliticMO reports that plaintiffs in the lawsuit last Wednesday filed a motion asking the court to grant a temporary restraining order preventing enforcement of the Executive Order.

In Michigan, a federal district court earlier this month struck down the state's constitutional ban on same-sex marriage. The next day, the 6th Circuit granted a stay of the order, pending appeal. However in the hours in between, some 300 same-sex couples married. (See prior posting.) In an announcement today (full text), U.S. Attorney General Eric Holder announced that the federal government would recognize these 300 marriages for purposes of eligibility for federal benefits.  He said in part:

The Governor of Michigan has made clear that the marriages that took place on Saturday were lawful and valid when entered into, although Michigan will not extend state rights and benefits tied to these marriages pending further legal proceedings.  For purposes of federal law, as I announced in January with respect to similarly situated same-sex couples in Utah, these Michigan couples will not be asked to wait for further resolution in the courts before they may seek federal benefits to which they are entitled.

Court Rejects Vagueness Attack On Missouri Funeral Picketing Law

In Phelps-Roper v. Koster, (WD MO, March 10, 2014), a Missouri federal district court rejected a vagueness challenge to a Missouri statute that bans:

picketing or other protest activities within three hundred feet of or about any location at which a funeral is held, within one hour prior to the commencement of any funeral, and until one hour following the cessation of any funeral.

Plaintiff Shirley Phelps-Roper, a member of the Westboro Baptist Church which often pickets funerals with signs opposing homosexuality, argued that the "one hour prior to the commencement of any funeral" provision is unconstitutionally vague because  published funeral times are frequently changed, and the person conducting a funeral may start it early. The court disagreed, saying that hypothetical situations not before the court will not be used to invalidate a statute that is valid in the vast majority of its applications. The court also rejected a vagueness challenge to the statutory provision that triggered the current ban's taking effect.  AP last week reported on the decision.

Meanwhile, the Topeka Capital-Journal this week reported on power shifts within the Westboro Baptist Church. Church founder Fred Phelps Sr., who is seriously ill and has been admitted to a hospice, was excommunicated on recommendation of a board of male elders, apparently because he advocated kinder treatment of fellow church members. Former spokesperson and church attorney Shirley Phelps-Roper has lost influence in the church; its spokesman is now apparently Steve Drain.

Suits Challenge Missouri's and Louisiana's Refusals To Recognize Out-of-State Same-Sex Marriages

Yesterday, the ACLU announced that has filed a state court lawsuit on behalf of 8 Missouri same-sex couples challenging Missouri's statutory and state constitutional provisions that deny recognition to plaintiffs' marriages that were legally entered into in other jurisdictions. The complaint (full text) in Barrier v. Vasterling, (MO Cir. Ct. Jackson County, filed 2/12/2014) contends:

Missouri’s exclusion of married same-sex couples from the protections and responsibilities of marriage violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This discriminatory treatment is subject to heightened scrutiny because it burdens the fundamental right to marry and because it discriminates based on sex and sexual orientation. But it cannot stand under any level of scrutiny because Missouri’s refusal to recognize the legal marriages of same-sex couples does not rationally further any legitimate government interest. It serves only to disparage and injure same-sex couples and their families.

Reporting on the lawsuit, the Columbia Missourian notes:

Missouri Gov. Jay Nixon drew criticism from gay marriage opponents in November when he directed the state Department of Revenue to accept joint tax returns from same-sex couple who are legally married in other states.... The directive prompted a lawsuit filed by same-sex marriage opponents, and led a Republican lawmaker last week to file articles of impeachment against the Democratic governor.

Meanwhile, in Louisiana an organization that advocates for LGBT equality filed a federal court lawsuit challenging Louisiana's statutory and state constitutional provisions that bar recognition of same-sex marriages validly performed elsewhere. The complaint (full text) in Forum for Equality Louisiana, Inc. v. Barfield, (ED LA, filed 2/12/2014), in claiming that the Louisiana Anti-Recognition Laws violate plaintiffs' equal protection and due process rights, focuses particularly on the state's refusal to accept joint tax returns from married same-sex couples and its refusal to issue birth certificates naming same-sex couples as parents of a child.  The New Orleans Times Picayune reports on the lawsuit.