Religious Claim To Cancel Social Security Participation Fails

 In Davis El v. Saul, 2020 U.S. Dist. LEXIS 194196 (MD TN, Oct. 20, 2020), a Tennessee federal district court adopted a magistrate's recommendation (2020 U.S. Dist. LEXIS 195880 (Aug. 31, 2020)) and dismissed a suit by plaintiff who claimed that his free exercise rights, and other constitutional rights, were violated because the government gave him no way to terminate his participation in the Social Security system. The court affirmed the magistrate's conclusion that the Anti-Injunction Act bars the suit.   The magistrate said in part:

Plaintiff does not deny that he could fill out and submit Form 4029 and thereby possibly receive a religious exemption. Instead, he argues that he should not have to follow the required procedure because he does not want a religious exemption to SSI; he wants to "cancel" the contract he perceives to exist between himself and SSA....

Plaintiff has provided no authority for his proposition that not being provided with an alternative to requesting a religious exemption is itself a First Amendment violation....

Because Plaintiff's claims ultimately seek to enjoin the assessment and collection of a federal tax and Plaintiff cannot satisfy either prong of the limited exception to the Anti-Injunction Act's jurisdictional bar, this Court lacks subject matter jurisdiction over Plaintiff's claims.

Student Sues Over Ban On Shirt With Anti-Gay Message

Suit was filed in a Tennessee federal district court last week by a high school student and her father challenging a public school's interpretation of a Policy in its Student Handbook that bars clothing with offensive messages, including sexual connotations.  The school insisted that the Policy prohibits plaintiff from wearing a shirt featuring the message "homosexuality is a sin-- 1 Corinthians 6:9-10".  The suit contends that this violates plaintiff's free exercise and free speech rights. The complaint (full text) in B.A.P. v. Overton County Board of Education, (MD TN, filed 10/16/2020), alleges in part:

Plaintiffs have a personal belief in the Biblical mandate to spread the Gospel of Jesus Christ, and Plaintiff B.A.P. engages in activities, for the purpose of spreading the Gospel of Jesus Christ, that are prohibited by the [school's] Policy.

WZTV reports on the lawsuit.

Tennessee 48-Hour Abortion Waiting Period Struck Down

 In Adams & Boyle, P.C. v. Slatery, (MD TN, Oct. 14, 2020), a Tennessee federal district court struck down Tennessee's requirement that women seeking an abortion must receive specified information in person and then wait 48 hours before undergoing the procedure. The court, in a 136-page opinion, said in part:

The Court finds and concludes that the mandatory waiting period required by § 39-15-202(a)-(h) substantially burdens women seeking an abortion in Tennessee. Plaintiffs have demonstrated conclusively that the statute causes increased wait times, imposes logistical and financial burdens, subjects patients to increased medical risks, and stigmatizes and demeans women. These burdens are especially difficult, if not impossible, for low-income women to overcome, and the evidence clearly shows that the vast majority of women seeking abortions in Tennessee are low income. Further, plaintiffs have shown that the statute undermines the doctor-patient relationship and imposes operational and financial burdens on abortion providers....

Defendants have failed to show that the challenged mandatory waiting period protects fetal life or the health of women in Tennessee. It is apparent that this waiting period unduly burdens women’s right to an abortion and is an affront to their “dignity and autonomy,” “personhood” and “destiny,” and “conception of . . . [their] place in society.”

Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]

Court Temporarily Halts Enforcement of Tennessee's Mandated Abortion Reversal Disclosures

 In Planned Parenthood of  Tennessee and North Mississippi v. Slatery, (D TN, Sept. 29, 2020), a Tennessee federal district court issued a temporary restraining order barring enforcement of a Tennessee law scheduled to take effect Oct. 1 which requires abortion providers to tell patients that medication abortions, once started, can be reversed. Plaintiffs claim that this violates their 1st Amendment rights by forcing them to provide patients with inaccurate information. In temporarily restraining enforcement of the law, the court said in part:

The Court is unable to assess fully the competing expert opinions as to whether the mandated message is “truthful and not misleading,” in the absence of the experts’ testimony, adduced through direct and cross examination. That assessment must await the preliminary injunction hearing....

Nevertheless, the Court does not need to await the hearing to determine that another aspect of the mandated message is “misleading.” The statute gives the Department of Health a period of up to 90 days in which to publish information, on its website and in printed materials, about the possibility of reversing the effects of a chemical abortion.... Section 218 requires abortion providers to tell patients that “information on and assistance with reversing the effects of a chemical abortion” is available on the Department of Health website, when in fact, such information and assistance may not be available.

Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]

Consent Decree Ends Religious Practices In Tennessee School District

Earlier this week, a Tennessee federal district court issued a consent decree in Butler v. Smith County Board of Education, (MD TN, Sept. 14, 2020), enjoining various religious practices in the Smith County schools. The Consent Decree and Order provides in part:

Complaint alleged that the Board has a custom, policy, and practice of violating the Establishment Clause by, among other actions, incorporating official prayer into school events; proselytizing students; and subjecting students to religious iconography via displays in classrooms, hallways, and other locations....

School Officials are enjoined from promoting, advancing, endorsing, participating in, or causing Prayers during or in conjunction with School Events for any school within the School District....

School Officials are enjoined from planning, organizing, financing, promoting, or otherwise sponsoring in whole or in part a Religious Service....

Defendants are enjoined from permitting School Officials at any school within the School District to promote their personal religious beliefs to students in class or during or in conjunction with a School Event....

School Officials are enjoined from taking retaliatory action against Plaintiffs or any member of their family for bringing this lawsuit or otherwise objecting to unconstitutional practices.

WZTV reports on the case.

Suit Challenges Tennessee's Abortion Reversal Disclosure Requirement

Suit was filed in a Tennessee federal district court this week challenging a recently enacted Tennessee abortion law (Tenn. Code Sec. 39-15-218, effective Oct. 1, 2020)  that requires doctors to tell their patients that it may be possible to reverse the effects of the first drug given to induce a medical abortion if the woman acts quickly. The complaint (full text) in Planned Parenthood of Tennessee and North Mississippi v. Slatery, (MD TN, filed 8/31/2020) alleges in part:

By forcing Plaintiffs to communicate a government-ordered message with which they and the overwhelming consensus of the medical profession disagree, and to present abortion patients with untruthful, misleading, and irrelevant information, the Act violates the First Amendment right of Plaintiffs and their staff and physicians against compelled speech, as well as their patients’ privacy rights under the Fourteenth Amendment. The Act likewise violates the Fourteenth Amendment’s guarantee of equal protection, singling out abortion providers and patients for adverse treatment not imposed on any other medical providers or patients in the State.

Courthouse News Service reports on the lawsuit. [Thanks to Scott Mange for the lead.]

Abortion Rights Proponents Win In 4 Cases

A series of abortion rights rulings were handed down in the last few days:

In Sistersong Women of Color Reproductive Justice Collective v. Kemp, (ND GA, July 13, 2020), a Georgia federal district court permanently enjoined enforcement of Georgia's Living Infants Fairness and Equality (“LIFE”) Act which prohibits abortions after detection of a fetal heartbeat and recognizes unborn children as "natural persons."  Courthouse News Service reports on the decision.

In Memphis Center for Reproductive Health v. Slatery, (MD TN, July 13, 2020), a Tennessee federal district court issued a temporary restraining order barring enforcement of two bans on pre-viability abortions. One bans abortions when a fetal heartbeat is detectable. The other bans pre-viability abortions sought because of the race or sex of the fetus, or because of a Down syndrome diagnosis. ACLU issued a press release announcing the decision.

In American College of Obstetricians and Gynecologists v. U.S. Food and Drug Administration, (D MD, July 13, 2020), a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of in-person requirements that barred women seeking a medical abortion from obtaining mifepristone through a mail-order or retail pharmacy or to receive the medication by mail from their healthcare provider. The court concluded:

in light of the COVID-19 pandemic, the In-Person Requirements cause an undue burden in violation of the Constitution, imposing a substantial obstacle on a large fraction of the relevant women seeking a medication abortion.

AP reports on the decision.

In Planned Parenthood of Maryland, Inc. v. Azar, (D MD, July 10, 2020), a Maryland federal district court enjoined implementation of HHS' "separate billing rule" which would have complicated the billing for abortion coverage in health insurance policies offered through state exchanges. As explained by the court:

HHS proposed that issuers would need to send two separate bills to the policyholder to comply with § 1303 (one bill for the portion of the premium attributable to non-Hyde abortion coverage and one for the rest of the premium), and instruct the policyholder to pay the premium attributable to non-Hyde abortion coverage in a separate transaction.

Health Affairs reports on the decision.

Suit Challenges Chattanooga's Ban On Drive-In Church Services

Suit was filed on Thursday in a Tennessee federal district court challenging Chattanooga, Tennessee's COVID-19 ban on drive-in church services.  The complaint (full text) in Metropolitan Tabernacle Church v. City of Chattanooga, (ED TN, filed 4/16/2020), alleges in part:

[A]ccording to the City, you can buy a hamburger and sit in your car at a drive-in restaurant, or sit in the parking lot of a retail establishment with hundreds of other vehicles with your windows rolled down, but you can’t sit in your car at a drive-in church service with your windows rolled up....

Plaintiffs sincerely believe that the Bible teaches the necessity of gathering together for corporate prayer and worship and that such assembly is necessary and good for the Church and its members’ spiritual growth....

The City’s drive-in church ban targets, discriminates against, and shows hostility towards churches, including Plaintiffs.

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

Suit Challenges Tennessee School Voucher Law

Suit was filed yesterday in a Tennessee state trial court challenging the constitutionality under the state constitution of the Tennessee's school voucher law. The funding law applies only to two urban counties (Nashville an Memphis areas). The complaint (full text) in McEwen v. Lee, (TN Chancery Ct., filed 3/2/2020) alleges violations of the state constitution's home rule provision, its education and equal protection clauses, and state provisions on appropriation of public funds. The complaint alleges in part:

The Voucher Law diverts taxpayer dollars to private schools that are not required to adhere to the same academic, accountability, governance, and non-discrimination requirements as Tennessee’s public schools. Diverting limited public education funding to private schools that do not provide students the same standards of education and civil rights protections as public schools violates Tennessee’s Constitution and state law.

The ACLU of Tennessee issued a joint press release announcing the filing of the lawsuit.

Lawsuit Opposes Religious Activities In Tennessee School

Two families who are atheists have filed suit against a Tennessee school board challenging religious practices at a Smith County middle school and high school.  The complaint (full text) in Butler v. Smith County Board of Education, (MD TN, filed 11/18/2019), alleges in part:

For years, [school officials] have routinely promoted and inculcated Christian religious beliefs by sponsoring religious activities and conveying religious messages to students at these two schools. School-sponsored prayer is common at athletic and other school events; religious iconography and messages adorn the walls of the schools; and teachers proselytize their Christian faith.

ACLU of Tennessee issued a press release with more background on the case. KRTV News reports on the lawsuit.

Lawsuit Claims Deputy Coerced Driver To Be Baptized

The Chattanooga Times Free Press reports on an unusual lawsuit filed this week by a woman against two Hamilton County (TN) sheriff's deputies in a Tennessee state trial court.  The lawsuit, asking for $11 million in damages, alleges that Deputy Daniel Wilkey initiated an unjustified traffic stop of plaintiff, and then conducted an intrusive pat down search of her for methamphetamine.  He discovered only a marijuana cigarette butt. Then, according to the paper:

After searching the woman's vehicle, he asked her if she had ever been "saved" and whether she believed in Jesus Christ, the lawsuit states. He told her that God was "talking to him during the vehicle search" and that he "felt the Lord wanted him to baptize [her]."

Wilkey then told her to go inside the home she was visiting and grab two towels for a baptism.... He said if she let him baptize her, he would issue her only a criminal citation for the possession of marijuana.....

When the woman returned outside, Wilkey told her to drive her own vehicle and follow him..... [T]hey eventually arrived at a boat ramp at Soddy Lake.... At that point, another deputy — Jacob Goforth — arrived.... Wilkey told the woman that Goforth was there because, "in order for a baptism to be valid, a witness must 'attest' to the ritual."

Wilkey then "stripped nearly naked".... He then led her into nearly waist-deep water, placed one hand on her back and the other on her breasts and completely submerged her under the water....

Suit Challenges Limits On Sharing Religious Message At Gay Pride Events

Suit was filed in a Tennessee federal district court last month challenging the manner in which the Special Events Policy of Johnson City (TN) is interpreted and applied. The complaint (full text) in Waldrop v. City of Johnson City, Tennessee, (ED TN, June 19, 2019) contends that the city's policy unconstitutionally prevents plaintiffs from sharing their Christian message during gay pride parades and events. It alleges:

123. As applied, the Policy unconstitutionally attempts to convert the City’s streets, sidewalks, and parks from traditional public fora into a nonpublic forum during Special Events conducted in the City. 

124. As applied, the Policy unconstitutionally limits Plaintiffs’ freedom of speech by forcing Plaintiffs to move out of a traditional public forum during Special Events....

133. Plaintiffs have a personal belief in the Biblical mandate to spread the Gospel of Jesus Christ, and Plaintiffs engage in activities, for the purpose of spreading the Gospel of Jesus Christ, that are prohibited by the Policy, as interpreted and enforced by Defendants.

WJHL News reports on the lawsuit.

Universal Life Church Sues Over Tennessee Ban On Solemnization of Marriages By Those Ordained Online

In a press release, Universal Life Church Ministries announced that it filed suit in a Tennessee federal district court on June 21 challenging the constitutionality of an amendment to the Tennessee Code scheduled to go into effect on July 1. The new law (full text) prohibits individuals who have received online ordinations from solemnizing marriages in the state. The Universal Life Church Ministries  has ordained more than 20 million individuals worldwide during the past 40 years through its online ordination. The lawsuit, brought on behalf of three ministers in Tennessee, alleges violations of the 1st and 14th Amendments and Art. I Sec. 3 of the Tennessee Constitution.  In its press release, ULMC says in part:

In the year 1454, Johannes Gutenberg – after years of painstaking work and near financial ruin – changed the world forever when he utilized his brilliant new printing press to successfully print the Bible. This Earth-shattering technological innovation arguably marked one of the first steps in a long chain of events that would bring about the Protestant movement, and for the first time in centuries return the power of religion to common women and men. People were finally free to pray, read, learn, commune, and question in a manner of their choosing – and the world is better off for it.

Much like Johannes Gutenberg, the Universal Life Church Ministries argues that it has always embraced the remarkable power of technology to bring people together in a global spiritual community and to push the conversation forward in pursuit of ever-higher levels of enlightenment.

Zoning Accommodation For Homeless Construction Is Upheld

In Ward v. Metropolitan Government of Nashville and Davidson County, Tennessee, (TN App., April 17, 2019), a Tennessee state appeals court upheld a local zoning decision granting an accommodate to property owned by a church on which it would build 22 micro-homes to house the homeless. As summarized by the court:

Appellants argue that the development should be subject to the zoning laws and procedures because the development would be constructed, owned, and operated by a lessee of the property that was not a religious institution or assembly or otherwise exercising religion and, consequently, applying the zoning laws to the development would not adversely affect the church’s exercise of religion.

The court held, however:

Given the nature of the project, the lease arrangement between Open Table and GUMC [Glencliff United Methodist Church] does not negate the protection that the statutes provide to GUMC; the project is born out of a common, religiously motivated desire to help the homeless, a cause that is recognized by the church as part of its core mission. Thus, it is entirely appropriate for GUMC to apply for and receive the accommodation allowed by the statutes. 

Charitable Organization Avoids Dismissal of RLUIPA Claims

In Layman Lessons Church v. Metropolitan Government of Nashville/ Davidson County, (MD TN, April 18, 2019), a Tennessee federal district court allowed a religious charitable disaster relief organization to move ahead with many of its claims under RLUIPA and the comparable state statute.  Plaintiff alleges that the city of Nashville discriminated against it through arbitrary enforcement of zoning and building code provisions. The court said in part:

Plaintiff has sufficiently alleged ... that the actions of Defendant—including, but not limited to, Defendant’s issuance of demolition orders, stop work orders, and storm water orders...; Defendant’s insisting that Plaintiff complete additional repair work and get additional permits than what was previously required; Defendant’s erroneously asserting that a protected stream existed on the property; and Defendant’s erroneously fining Plaintiff for “grading without a permit”—created a “substantial burden” on its free exercise of religion, in violation of RLUIPA.

Plaintiff also alleges that Defendant discriminated against Plaintiff based on its religion. Defendant does not mention this discrimination claim. Plaintiff has alleged that it was treated differently than other property owners because it is a religious organization.... Plaintiff has sufficiently alleged, for purposes of a motion to dismiss, that it was treated differently from non-religious property owners.... In addition, for the same reasons, Plaintiff has sufficiently alleged that it was treated on less than equal terms with a non-religious institution...

6th Circuit: Moving Street Preachers Away From Pride Festival Violated Their Free Speech Rights

In McGlone v. Metropolitan Government of Nashville, (6th Cir., Sept. 19, 2018), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that the free speech rights of two sidewalk preachers were infringed when they were required to move their amplified anti-homosexuality preaching across the street from the park where a Pride festival was being held. The majority held:

Nashville excluded McGlone and Peters from a traditional public forum for expressing a message opposed to homosexuality and Nashville provides no compelling reason for doing so. Indeed, Nashville does not even argue that its restriction of McGlone and Peters’ speech could survive strict scrutiny review. We therefore end our inquiry here.

Judge Moore dissented, saying in part:

I believe that it was a reasonable time, place, and manner restriction for ... Nashville ... to require ... John McGlone and Jeremy Peters ... to cross a downtown street if they wished to continue shouting disruptive messages through bullhorns during a permit-authorized event in a public park....

Veteran Has Standing to Challenge Therapist Bill As Establishment Clause Violation

In Copas v. Haslam, (MD TN, May 25, 2018), a Tennessee federal district court held that a gay Army veteran, who also holds a degree in counseling, has standing to bring an Establishment Clause challenge to a Tennessee law that permits therapists to refuse to serve LGBT clients when doing so would violate the therapist's religious beliefs. Plaintiff suffers from PTSD and Chronic Adjustment disorder, and has sought therapy in the past. The court held that plaintiff's claim that he has been marginalized and "made to feel ostracized and
unworthy as a non-adherent to the religiously-based, anti-LGBT preference" in the law is a sufficiently concrete injury to grant standing.  It also held that he has been sufficiently personally injured by the law to satisfy Article III standing requirements for his Establishment Clause claim.  The court however dismissed several equal protection claims made by plaintiff.

6th Circuit: Tennessee Constitutional Amendment On Abortion Was Validly Adopted

In George v. Hargett, (6th Cir., Jan. 9, 2018), the U.S. 6th Circuit Court of Appeals rejected a challenge by Tennessee voters to the method by which votes were counted in 2014 on a state constitutional amendment.  At issue was an amendment that provides in part: "Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion."  Language in the Tennessee constitution on the number of votes needed to approve a constitutional amendment is ambiguous.  However a state court had upheld the interpretation by state voting officials.  The 6th Circuit, reversing the district court, upheld the state's determination that the amendment had passed. It also concluded that the vote counting method used by the state does not violated due process or equal protection provisions of the federal Constitution.  The Tennessean reports on the decision. [Thanks to Tom Rutledge for the lead.]

Settlement Reached In Correctional Employee's Suit Over Religious Curriculum for Inmates

The state of Tennessee last month agreed to a settlement of $45,948, plus up to $35,000 in attorneys' fees, in a suit that was brought by an employee of a state corrections agency who complained that the program he was required to teach to inmates was heavily religious. The program was based on the book This Ain’t No Practice Life by Michael Burt  Also under the agreement, the employee will leave the agency next June. (Full text of settlement agreement).  The agreement followed a federal district court's entering of a preliminary injunction in favor of the employee last February.  In Baker v. State of Tennessee, (MD TN, Feb. 17, 2017), the court, finding a strong likelihood of an Establishment Clause violation, said:

The fact that the Coaching Program as a whole may have a secular purpose of rehabilitating TDOC inmates and preparing them for release and reentry does not mitigate the fact that there is likely no secular purpose to the inclusion of religious-based content in the Coaching Program’s materials.

Reporting on the settlement, WSMV News adds that the challenged program, which has now been canceled, cost the state $300,000 to implement.

Suit Challenges Tennessee's Therapist Bill

A suit was filed last week in a Tennessee federal district court challenging the constitutionality of  Tennessee's "Therapist Bill" (TN Code 63-22-302) that provides:

No counselor or therapist providing counseling or therapy services shall be required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with the sincerely held principles of the counselor or therapist; provided, that the counselor or therapist coordinates a referral of the client to another counselor or therapist who will provide the counseling or therapy.

The complaint (full text) in Copas v. Haslam, (MD TN, filed 11/13/2017) contends that, despite the broad wording of the section:

The Tennessee Legislature intended for the Bill solely to allow religious counselors to discriminate against the LGBT community.

It asserts that the law violates the Equal Protection Clause and the Establishment Clause.  JURIST reports on the lawsuit.