Nebraska Supreme Court Approves Competing Initiative Measures on Abortion

Last Friday, the Nebraska Supreme Court rejected challenges to two competing state constitutional amendments relating to abortion. In State of Nebraska ex. rel. Brooks v. Evnan, (NE Sup. Ct., Sept. 13, 2024), the Nebraska Supreme Court held that the ballot initiative titled Protect the Right to Abortion does not violate the Nebraska Constitution's single subject rule. In State of Nebraska ex. rel. Constance v. Evnan, (NE Sup. Ct., Sept. 13, 2024), the Nebraska Supreme Court similarly held that the ballot initiative titled Protect Women and Children does not violate the state constitution's single subject rule. Nebraska Public Media reports on the decisions.

Suit Challenges Nebraska Abortion Rights Ballot Proposal

On August 23, the Nebraska Secretary of State certified two competing abortion related petitions for inclusion on the November ballot-- the Protect the Right to Abortion amendment and the Protect Women and Children amendment. On Aug. 30, an anti-abortion proponent filed a petition in the Nebraska Supreme Court seeking a writ of mandamus requiring the Secretary of State to exclude the Protect the Right to Abortion proposal from the ballot. On the same day, the state Supreme Court granted petitioner leave to commence the action and set an extremely rapid hearing schedule. The state must file an answer by today, September 4, and a hearing is set for September 9. The petition (full text) in State of Nebraska ex rel LaGreca v. Evnen, (NE Sup. Ct., filed 8/30/2024) alleges as its only claim that the initiative proposal violates the single subject rule of the Nebraska constitution. Thomas More Society issued a press release announcing the lawsuit.

Nebraska Governor Says State Will Not Comply with New Title IX Rules On Gender Identity Discrimination

As previously reported, last month the U.S. Department of Education promulgated new rules under Title IX on sex discrimination by educational programs receiving federal financial assistance. Among other things, the new rules provide that sex discrimination includes discrimination on the basis of sexual orientation or gender identity. Last Friday, Nebraska Governor Jim Pillen announced that Nebraska will not comply with the new title IX requirements which go into effect on August 1.  His announcement says in part:

 “The Biden administration’s rewrite of Title IX is an affront to the commonsense idea that men do not belong in women’s only spaces,” said Gov. Pillen. “It’s also a direct attack on the Women’s Bill of Rights, established by my executive order last August.” 

Gov. Pillen’s executive order declares the biological definition of male and female and protects women’s sports and the privacy of women-only spaces. 

"Protecting our kids and women’s athletics is my duty," said Gov. Pillen. "The President's new rules threaten the safety of women and their right to participate in women’s sports. Nebraska will not comply. We must fight against radical gender ideology and vigorously protect the rights of Nebraska women and girls.”

School District Settles Suit by Native Americans Over Cutting of Students' Hair

A consent decree (full text) was entered this week in Johnson v. Cody-Kilgore Unified School District, (D NE, Oct. 4, 2023). In the case, Native American parents (members of the Rosebud Sioux tribe) who practice traditional Lakota religious traditions sued over the school's cutting of their children's hair as part of a lice check and disposing of the hair in violation of Lakota tradition. (See prior posting.) Under the Consent Order, the School District will prohibit School Officials from cutting students' hair for any reason without the written parental (or guardian's) consent. It will also provide recognition of Native American Heritage Month and Indigenous Peoples' Day. Also the school district will pay damages totaling $227,500. Nebraska Examiner reports on the settlement agreement.

DOJ Sues Nebraska Village For Refusing Building Permits To Church

The Justice Department announced yesterday that it has filed suit in a Nebraska federal district court against the village of Walthill, Nebraska alleging violations of the "substantial burden" and "equal terms" provisions of the Religious Land Use and Institutionalized Persons Act.  The complaint (full text) in United States v. Village of Walthill, Nebraska, (D NE, filed 2/20/2020), alleges in part:

This civil action is based on the Village’s unlawful refusal to allow Light of the World Gospel Ministries, Inc...., a non-denominational Christian church, to construct a new place of worship on property it owns in a commercial (“C-1”) district of the Village by denying the Church necessary permits. 

... Since 2007, LOTW has operated religious services out of a small, 1,250 sq. ft. building ... on another lot in the C-1 district. The space is no longer adequate to serve its religious needs, and the unstable condition of a dilapidated building next to the church on the property made the space unsafe. The Village refused to permit LOTW to build its noncommercial religious property in the C-1 district, but has permitted noncommercial nonreligious entities to construct buildings in the C-1 district during the same time period.

January 16 Is Religious Freedom Day

January 16 is Religious Freedom Day-- celebrating the anniversary of the passage in 1786 of the Virginia Statute of Religious Freedom. Each year since 1993 the President has issued a proclamation marking the day. Presumably this year's Proclamation will be posted by the White House today. Gov. Pete Ricketts of Nebraska also issued a Proclamation (full text) recognizing the day.

UPDATE: Here is President Trump's Proclamation on Religious Freedom Day, 2020.

8th Circuit Rejects Trooper's Challenge to Required Ride-Along With Chaplain

In Steckelberg v. Rice, (8th Cir., Dec. 26, 2017), the U.S. 8th Circuit Court of Appeals affirmed the district court's dismissal of a suit by a Nebraska State Trooper alleging various complaints about his treatment in connection with his application for a promotion and for a transfer and in handling grievances he filed. One of plaintiff's complaints, focused on during oral argument in the 8th Circuit, was that as part of his required performance improvement plan, he was required to ride along with the State Patrol chaplain, a Catholic priest, for a shift.  The 8th Circuit apparently agreed with the district court's rejection of the argument that this amounted to government coerced proselytization. The Lincoln Journal Star, reporting on the decision, says that a petition for en banc review is likely to be filed.

8th Circuit: OK To Ban Religious Leafleting On Plaza of Sports Arena

In Ball v. City of Lincoln, Nebraska, (8th Cir., Aug. 29, 2017), the U.S. 8th Circuit Court of Appeals held that the city did not infringe the free speech rights of a city resident who insisted on handing out Christian religious literature in the plaza area of a municipal sports arena to those attending high school basketball tournaments. A majority of the 3-judge panel held that the entire plaza area is a non-public forum, and the policy barring leafleting in that area is reasonable. Judge Melloy dissented in part, concluding that a portion of the plaza area is a traditional public forum. Lincoln Journal-Star reports on the decision.

8th Circuit Upholds Nebraska's Funeral Picketing Law

In Phelps-Roper v. Ricketts, (8th Cir., Aug. 11, 2017), the U.S. 8th Circuit Court of Appeals upheld Nebraska's Funeral Picketing Law against both facial and as-applied challenges brought by members of the Westboro Baptist Church.  WBC has historically picketed military funerals-- which its members consider "patriotic hoopola"-- with anti-gay messages and other messages about national policies that WBC considers opposed to Biblical teachings.  The challenged Nebraska law prohibits picketing within 500 feet of a cemetery, mortuary, or church beginning one hour before and ending two hours after the start of a funeral. In upholding the law, the court concluded:

The rights of all speakers, including Phelps-Roper and others at funerals, to publically express their beliefs are protected by the First Amendment—but are not absolute....  Mourners, because of their vulnerable physical and emotional conditions, have a privacy right not to be intruded upon during their time of grief.... NFPL strikes a balance between these competing interests of law-abiding speakers and unwilling listeners in a way that is not facially unconstitutional. We likewise find that Phelps-Roper has failed to demonstrate that the NFPL was applied to her in an unconstitutional manner.

Omaha World-Herald reports on the decision.

Kentucky, Nebraska Enacts New Protections For Religion In Schools

Two states this month have enacted legislation aimed at enhancing free exercise rights in the public school context. In Kentucky, on March 16 Governor Matt Bevin signed SB 17 which protects the expression of religious and political opinions in public schools and colleges. The law assures that students can voluntarily express religious or political viewpoints in their assignments; bars schools from altering remarks of student speakers; provides equal access for religious organizations; allows students to display religious messages on clothing; allows public school teachers to teach about religion using the Bible or other scripture without providing religious instruction, and to teach about religious holidays in a secular manner, and allows schools to sponsor artistic or theatrical programs that advance knowledge of society's cultural and religious heritage. It also effectively bars public colleges from limiting speakers outdoors on campus to free speech zones.  An ADF press release has more on the new law.

In Nebraska, on March 27 Governor Pete Ricketts signed LB 62 eliminating a longstanding ban on teachers wearing religious garb in public schools.  Blog from the Capital has more.

Religious Tracts Cannot Be Distributed On Arena Plaza

In Ball v. City of Lincoln, Nebraska, (D NE, June 23, 2016), a Nebraska federal district court dismissed an attempt to enjoin authorities from enforcing a policy that, among other things, bars leafleting on a Plaza Area outside the Pinnacle Bank Arena unless requested by a person renting out the Arena or the artists or productions they represent. (Full text of Use Policy.) The Arena was jointly constructed by the city of Lincoln and the University of Nebraska.  Plaintiff Larry Ball handed out religious tracts in the Plaza Area on several occasions, and was cited for trespass.  The court upheld the Arena's policy, finding that the Plaza Area is a non-public forum and that the restrictions on its use are reasonable because they are neutral and do not curtail free speech in nearby areas. Lincoln Journal Star reporting on the decision says that an appeal is planned.

Business Owner Unsuccessful In Suing Churches That Opposed New Strip Club

In Harrington v. Hall County Board of Supervisors, (D NE, March 31, 2016), a Nebraska federal district court dismissed a number of claims brought by the owner of an adult entertainment company against two churches that circulated a petition opposing attempts to open a strip club in Hall County, Nebraska. The court also dismissed claims against a director of one of the churches.  The adult entertainment company owner alleged that the churches engaged in a conspiracy to adopt and enforce an unconstitutional zoning resolution. Plaintiff also alleged violations of the antitrust laws, defamation, tortious interference with business relationships, infliction of emotional distress, and negligence.  The court additionally rejected the claim that individual members of the County Board of Supervisors violated the Establishment Clause when at a public hearing they thanked supporters of the petition for supporting Christian values.

Justice Department Investigating Mosque Zoning Dispute In Nebraska

According to yesterday's Omaha World-Herald, the U.S. Justice Department is investigating complaints by leaders of a mosque in Lexington, Nebraska, that the town is burdening their religious freedom in raising zoning objections to the use of a former downtown laundry building for Muslim prayer.  Somali workers from a local meat packing plant use the building for prayer 5 times a day. The paper reports:

City officials maintain that mosque leaders are ignoring local zoning laws and thumbing their noses at requirements for building permits and fire-code inspections.

They insist that the flap is about a lack of parking, not a denial of religious freedom, and that it wasn’t spurred by “Islamophobia.”

.... We’re just trying to plan and redevelop that part of our town,” said Lexington City Manager Joe Pepplitsch.... Let’s find an alternative.”

But local Muslim leaders question why a community that has hosted waves of immigrants seems to be taking such a hard line against them. They had gathered for prayers in two smaller buildings for eight years before expanding into and later buying the larger laundry next door. They see plenty of empty parking stalls nearby at two city-owned lots.

City Sues Mosque Over Renovation and Expansion Plans

AP reports that the city of Lexington, Nebraska has sued a mosque to keep it from renovating and expanding its downtown property.  The Islamic Center of Dawson County wants to renovate two buildings it has occupied since 2008 and renovate an adjacent former laundromat building that it has acquired.  The city says the Islamic Center has never obtained an occupancy permit, and that it needs a conditional use permit to use the former laundromat building for religious purposes.  In December, City Council voted to deny the permit over concerns about parking and downtown redevelopment plans.  The city's lawsuit seeks penalties of $600 per day for building code and zoning violations, and asks for a temporary injunction against expansion into the laundromat building. The city is urging the Islamic Center to look for property in residential areas, but the mosque says those areas are far from where its members-- mostly Somalian and other African immigrants-- live.

District Court Invalidates Nebraska Bans on Same-Sex Marriages

In Waters v. Ricketts, (D NE, March 2, 2015), a Nebraska federal district court issued a preliminary injunction, effective March 9, prohibiting enforcement of the state's laws that bar same-sex marriage and recognition of same-sex marriages performed elsewhere, saying:

Under existing precedent, Nebraska's same-sex marriage ban is at least deserving of heightened scrutiny because the challenged amendment proceeds "along suspect lines," as either gender-based or gender-stereotype-based discrimination.

The court's order implementing its decision requires state officials:

to treat same-sex couples the same as different sex couples in the context of processing a marriage license or determining the rights, protections, obligations or benefits of marriage.

ACLU issued a statement announcing the decision.  According to AP, Nebraska Attorney General Doug Peterson plans to ask the 8th Circuit Court of Appeals for an order barring county officials from issuing same-sex marriage licences while the district court opinion is appealed. 

New Lawsuit Challenges Nebraska's Ban On Same-Sex Marriage

A lawsuit was filed yesterday in federal district court in Nebraska by 7 couples challenging the constitutionality of Art. I, Sec. 29 of Nebraska's state constitution.  The provision prohibits same-sex couples from marrying and bars recognition of the marriages of same-sex couples performed in other jurisdictions. The complaint (full text) in Waters v. Heineman, (D NE, filed 11/17/2014) contends that the provision violates the due process and equal protection clauses of the 14th Amendment. ACLU announced the filing of the lawsuit. Sioux City Journal has additional background. In 2006, in Citizens for Equal Protection v. Bruning, the 8th Circuit upheld the Nebraska ban.