Episcopal Priest Sues County Commissioners Over Invocation Policy

Suit was filed this week in a Michigan federal district court by an Episcopal Priest in Grand Haven, Michigan, challenging the manner in which the Ottawa County Board of Commissioners currently selects individuals to deliver invocations at Board meetings. The complaint (full text) in Cramer v. Ottawa County, (WD MI, filed 10/2/2023), alleges that prior to 2023, different Commissioners on a rotating basis selected individuals to offer invocations. However, since January 2023 when Joe Moss became Chairperson of the Commission, only he selects persons to give invocations.  He has selected only male pastors of Christian churches who share his religious beliefs.  Some of the pastors have included in their invocations praise for a far-right political group that Moss founded and leads. Plaintiff is an advocate of LGBTQ rights, while Moss has promoted an anti-LGBTQ agenda. Grand Haven Tribune reports on the lawsuit.

Reservist Challenges Military's Admonition of Him for His Remarks at Retirement Ceremony

Suit was filed this week in a Texas federal district court by Jace Yarbrough, a Major in the Air Force Reserve, challenging a Letter of Admonition issued to him by the military for the content of remarks he made while speaking, in uniform, at a retirement ceremony for Senior Master Sergeant Duane Fish, an Air Force flight superintendent with whom he worked closely and with whom he shared religious beliefs and values.  The complaint (full text) in Yarbrough v. United States Space Force, (ED TX, filed 10/3/2023), asserts that Yarbrough's Christian faith is central to his worldview, conduct and speech. The complaint describes the remarks at issue as encouraging people to practice the courage and virtue exemplified by SMSgt Fist.  It goes on:

92. In keeping with that theme, [Yarbrough] expressed his personal concerns about the negative impact of politicization within the military.... He worried that “radical” factions in “our wider culture” have “brought the culture war inside the DoD,” and that politicization of the military would be “a death knell for courage and competence.” 

93. To support his views, he drew on the teachings and thought of Eastern Orthodox Christian and writer Aleksandr Solzhenitsyn ... regarding the corrosive cultural consequences of dishonesty and self-deception.... 

94. Mr. Yarbrough gave two examples of objective realities he believes are known intuitively to all persons as persons: 1) “men can’t birth babies” and 2) “boys should not be allowed in girls’ locker rooms.” 

95. He expressed his faith-based belief that forcing people to deny such self-evident beliefs “requires constant . . . self-deception,” which can “habituate [us] to dishonesty” and cause us to lose our “grip on objective reality,” making us “less capable and less effective in our world.... 

96. As part of his warning against politicization, he referenced “recent DoD-wide extremism training” that he had attended, in which he “was relieved to see that [his] teammates recognized that training for what it was, a thinly veiled flex of political power.”...

The suit alleges that the Letter of Admonition, among other things, violated the Religious Freedom Restoration Act, as well the Free Exercise, Free Speech and Establishment Clauses.

First Liberty Institute issued a press release, including a link to the full text of plaintiff's remarks at the retirement ceremony.

Group Urges Students To Bring A Bible To School Today

Today has been designated "Bring Your Bible to School Day" by the Christian organization, Focus on the Family. The event's website says in part:

Bring your Bible to whatever school looks like for you! Whether your school is public, private, or at home, you can participate!...

As Christians, we’re called to share the gospel with the world! Bring Your Bible to School Day provides you with an easy way to start that conversation with your friends and classmates.

It explains further:

You are allowed to invite your friends to join you to read the Bible and talk about it. But remember, you cannot make someone else read the Bible if they don’t want to....

You can offer Bibles to friends and classmates as long as you hand them out in a way that does not disturb class time. For example, you can share the Bible during lunch, at recess, before school, or after school.

According to the website, last year, 877,000 students from over 50,000 schools participated.

Potential Candidate Challenges Religious Oath On New Jersey Candidate Petition Forms

Suit was filed this week in a New Jersey federal district court challenging the New Jersey requirement that candidates filing to run for public office sign an oath that ends with the phrase "so help me God." The complaint (full text) in Tosone v. Way, (D NJ, filed 10/3/2023), alleges that plaintiff, who wishes to run for public office, is unable as a matter of conscience to sign an oath which is religious. Alleging that the current version of the oath violates Article VI of the Constitution, as well as the free speech, free exercise and Establishment Clauses, plaintiff seeks a court order requiring the Secretary of State to provide a form that allows him to run for public office without his swearing "so help me God." New Jersey Monitor reports on the case.

New South Asian Congressional Caucus Launched Amid Criticism from Some Civil Rights Groups

Last week, Michigan Congressman Shri Thanedar announced formation of the 28-member "Hindu, Buddhist, Sikh, Jain US Congressional Caucus." According to India West Journal: "The group will address cultural misunderstandings, promote interfaith dialogue and harmony, and support initiatives to promote the well-being, education, and empowerment of the Hindu, Buddhist, Sikh, and Jains in the US." However, four Hindu, Sikh and Muslim civil rights groups issued a press release sharply criticizing formation of the caucus, saying it does not represent all parts of the South Asian community across faith, caste and ethnic lines.  The press release says in part:

"... In June of this year, Congressman Thanedar announced his intention to form a Hindu Caucus without input from the full spectrum of Hindu American civil society, including Dalit and linguistic community organizations. This caucus seems to be a new iteration of that previous announcement.”

“If this caucus is that announcement repackaged with a more inclusive label but the same makeup, it will likely combat meaningful oversight of the U.S.-India relationship, ongoing work to protect the civil rights and safety of Sikhs and other marginalized groups, and efforts to ban caste discrimination at a federal level. Moreover, given the lack of Muslim representation, it may oppose ongoing efforts to combat Islamophobia. In short, any caucus without inclusive representation from the Indian diaspora will serve as nothing more than a vehicle for Hindu nationalist policies that will inevitably harm the entire South Asian American community, including Sikh, Muslim, Dalit, Buddhist, Jain, and even Hindu Americans.

School Enjoined from Social Transitioning of Students Without Parental Consent

In T.F. v. Kettle Moraine School District, (WI Cir. Ct., Oct. 3, 2023), a Wisconsin state trial court enjoined a school district from allowing or requiring staff to refer to students using a name or pronouns at odds with the student’s biological sex, while at school, without express parental consent. The court said in part:

This Court has before it what modern society deems a controversial issue – transgenderism involving minors within our schools. Clearly, the law on this issue is still developing across the country and remaining largely unsettled. However, this particular case is not about that broad controversial issue. This particular case is simply whether a school district can supplant a parent’s right to control the healthcare and medical decisions for their children. The well established case law in that regard is clear – Kettle Moraine can not. The School District abrogated the parental rights of B.F. and T.F. on how to medically treat A.F. when the district decided to socially affirm A.F. at school despite B.F. and T.F. requesting it does not. Through its policy of disregarding parental wishes on a medical or health related decision and with how fast questioning ones gender can arise, P.W. and S.W. are at real risk of being harmed by the current School District policy. 

The current policy of handling these issues on a case-by-case basis without either notifying the parents or by disregarding the parents wishes is not permissible and violates fundamental parental rights.

The Freeman reports on the decision.

11th Circuit: Buddhist Organization Prevails Under Alabama State Constitution in Zoning Fight

In Thai Meditation Association of Alabama, Inc. v. City of Mobile, Alabama,(11th Cir., Oct. 2, 2023), the U.S. 11th Circuit Court of Appeals partly reversed the summary judgments entered in favor of the city of Mobile at the district court level.  At issue is Mobile's denial zoning approval for a Buddhist organization to use a house in a residential district for religious purposes. The appeals court held that neither party is entitled to summary judgment under RLUIPA because of factual disputes.  It held that the district court correctly dismissed plaintiff's Free Exercise claim because the zoning designation process is neutral and generally applicable. It held however, that the Buddhist organization is entitled to an injunction under the Alabama Religious Freedom Amendment to the state constitution, saying in part:

To begin, we have never held that neighborhood character or zoning are compelling government interests sufficient to justify abridging core constitutional rights....  ... [A]mici also note that generalized, high-level invocations of “zoning” are often used to target minority faith’s land use applications.... These concerns underscore why it is necessary to hold government entities to their burden to state and support a well-defined government interest. 

Here, the City has failed to carry its burden to demonstrate a compelling government interest. The generalized invocations of neighborhood character and zoning fail as a matter of law under our precedents. The City’s invocation of traffic concerns fare slightly better..., but they are unsubstantiated in the record....

9th Circuit Stays Pending Appeal Feds' Partial Injunction Against Idaho Abortion Ban

In United States v. State of Idaho, (9th Cir., Sept. 28, 2023), the U.S. 9th Circuit Court of Appeals stayed, pending appeal, a district court's injunction barring enforcement of Idaho's abortion ban ("section 622") to the extent it conflicts with the federal Emergency Medical Treatment and Labor Act (EMTALA). (See prior posting.) The appeals court said in part:

The Legislature has made a strong showing that EMTALA does not preempt section 622. EMTALA does not require abortions, and even if it did in some circumstances, that requirement would not directly conflict with section 622. The federal government will not be injured by the stay of an order preliminarily enjoining enforcement of a state law that does not conflict with its own. Idaho, on the other hand, will be irreparably injured absent a stay because the preliminary injunction directly harms its sovereignty.

Politico reports on the decision. [Thanks to Scott Mange for the lead.]

Faith-Based Foster Care Agency May Limit Clients to Those with Compatible Religious Beliefs

 In two decisions issued last week, a South Carolina federal district court rejected Establishment Clause challenges to waivers from federal anti-discrimination requirements granted faith-based child placement agencies.  In Rogers v. U.S. Department of Health & Human Services, (D SC, Sept. 29, 2023), plaintiff challenged an Executive Order issued by the governor of South Carolina allowing licensing of religious child placement agencies that worked only with clients who shared their religious beliefs. At issue in the case was the rejection by Miracle Hill Ministries of a foster-parent application submitted by a same-sex couple who belonged to the local Unitarian-Universalist Church. The court rejected plaintiffs' Equal Protection claim because plaintiffs had not identified any state action involved.  It rejected their Establishment Clause claim, saying in part:

Plaintiffs’ legal premise is based on the now abandoned framework of the “Lemon Test” by focusing their argument on the third factor in Lemon regarding an “excessive government entanglement with religion.” ... Instead, based on historical practices and understandings which Kennedy requires, Establishment Clause protections are more likely triggered “when the government use[s] the established church to carry out certain civil functions, often by giving ‘the established church a monopoly over a specific function.’” ...

Plaintiffs identify but misstate three “hallmarks” of “founding-era religious establishments” that “reflect[] ‘forms of coerc[ion]’ regarding ‘religion or its exercise.’”... Stated in full, they are: 1) “the government punished dissenting churches and individuals for their religious exercise,” 2) “the government provided financial support for the established church, often in a way that preferred the established denomination over other churches,” and 3) “the government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function[.]” ...

Plaintiffs fail to meet their burden to show that these “hallmarks” exist here...

In Madonna v. U.S. Department of Health & Human Services, (D SC, Sept. 29, 2023), plaintiff was rejected by Miracle Hill because she did not share its evangelical-Christian beliefs and could not affirm its statement of faith. Rejecting plaintiff's Establishment Clause claims, the court said in part:

Defendants did not compel Maddonna to sign Miracle Hill’s statement or leave her without an adequate alternative to signing it. To the contrary, Maddonna could foster the same children at any of twenty-six other private agencies in the State... or with the State itself....  Accordingly, Maddonna has not shown “a historically disfavored establishmentarian practice” based on a claim of “subtle and indirect pressure.”...

Maddonna’s attempt to implicate an impermissible religious accommodation is foreclosed by Fulton v. City of Philadelphia, an analogous case in which the Supreme Court found the denial of a similar religious accommodation for foster care agencies burdened the Free Exercise Clause.

Becket issued a press release announcing the decisions.

6th Circuit Upholds TN and KY Laws Barring Gender Transition Treatment For Minors

 In L.W. v. Skrmetti, (6th Cir., Sept. 28, 2023), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, reversed preliminary injunctions issued by district courts in challenges to statutes in Tennessee and Kentucky prohibiting chemical, hormonal or surgical treatment of minors for gender dysphoria. The majority rejected due process and equal protection challenges to the state laws, saying in part:

No one in these consolidated cases debates the existence of gender dysphoria or the distress caused by it. And no one doubts the value of providing psychological and related care to children facing it. The question is whether certain additional treatments—puberty blockers, hormone treatments, and surgeries—should be added to the mix of treatments available to those age 17 and under. As to that, we return to where we started. This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two. Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments. That is precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges.

Judge White dissented, saying in part:

The statutes we consider today discriminate based on sex and gender conformity and intrude on the well-established province of parents to make medical decisions for their minor children. Despite these violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, the majority concludes that the statutes are likely constitutional and reverses district court orders enjoining the statutes. I respectfully dissent.

EEOC Sues Chipotle For Manager's Harassment of Muslim Teen

 The EEOC announced that last week it filed a Title VII suit against the restaurant chain Chipotle contending that a manager at a Kansas restaurant location harassed a teenage employee for wearing a hijab. According to the EEOC:

During the summer of 2021, an assistant manager began repeatedly asking [the employee] to remove her hijab, or headscarf, pressuring her to show him her hair. Despite the teen’s rejections and complaints to management, Chipotle failed to act to stop the manager’s harassment. Chipotle’s inaction resulted in the manager escalating his abuse, ultimately grabbing and forcibly removing part of the teen’s hijab.

After the teen reported the incident, Chipotle again failed to take prompt corrective action, and she was forced to submit her two weeks’ notice. The EEOC further alleges that Chipotle retaliated against the teen by refusing to schedule her to work additional shifts unless she agreed to transfer locations, while allowing her harasser to continue working at the same location.

2 North Carolina Abortion Restrictions Enjoined

 In Planned Parenthood South Atlantic v. Stein, (MD NC, Sept. 30, 2023), a North Carolina federal district court issued a preliminary injunction barring enforcement of two provisions of North Carolina's law regulating abortions.  The court said in part:

The plaintiffs are likely to succeed on the merits of their vagueness challenge to the requirement that providers determine and document the probably intrauterine location of a pregnancy before administering medication intended to terminate a pregnancy. The Act does not provide a clear standard by which providers can make this determination....

The plaintiffs are also likely to succeed on the merits of their equal protection challenge to the Act's requirement that surgical abortions after 12 weeks of pregnancy must be performed in a hospital.  The plaintiffs have offered uncontradicted evidence that the same medical procedures used for surgical abortions are used for miscarriage management and that the risks of those identical procedures are the same whatever their purpose... The plaintiffs have shown the absence of any rational medical basis for distinguishing between these two classes of patients....

CNN reports on the decision. 

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.

Supreme Court Opens Fall Term

The U.S. Supreme Court today opened its Fall 2023 Term today by issuing the typically long first-day-of-term Order List. The Court denied review in hundreds of cases.  Among the interesting cases were Truong v. Stitt, (Docket No. 22-7743) and Truong v. Dewine, (Docket No. 22-7800), in which a pro se plaintiff sued a lengthy list of defendants-- including five U.S. Supreme Court Justices-- challenging, among other things, Oklahoma's (10th Circuit opinion) and Ohio's (district court opinion) laws restricting abortions. In disposing of the cases, the Supreme Court said:

Because the Court lacks a quorum, 28 U. S. C. §1, and since the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of the Court, the judgment is affirmed under 28 U. S. C. §2109, which provides that under these circumstances "the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court." Justice Thomas, Justice Alito, Justice Gorsuch, Justice Kavanaugh, and Justice Barrett took no part in the consideration or decision of this petition.

Yesterday, before the start of the new term, the traditional Red Mass was held at the Cathedral of St. Matthew the Apostle in Washington, D.C.  Catholic Standard, reporting on the Mass, said that Chief Justice Roberts, Justice Barrett; and retired Justice Kennedy were in attendance.

Recent Articles of Interest

From SSRN:

• Petrina Tan Tjin Yi, Faith-Based Investing, Stewardship, and Sustainability: A Comparative Analysis, (NUS Law Working Paper No. 2023/024 (2023).
• Manal Totry-Jubran, Examining Palestinian Arabs Group Rights in Israel through A Multicultural Lens. (Oxford Handbook on the Israeli Constitution (2023, Forthcoming)).
• Inês Granja, Interview with Heiner Bielefeldt: Understanding Religious Freedom, (iCourts Working Paper Series, no. 334, 2023).
• Marta Lasek-Markey, Protecting the employee's conscientious choices and EU non-discrimination law. A case study from Ireland (September 21, 2023).
• Michael L. Smith, Public Accommodations Laws, Free Speech Challenges, and Limiting Principles in the Wake of 303 Creative, (Louisiana Law Review, Vol. 84, (Forthcoming)).
• Robert W. McGee, Monica Violeta Achim & Gabriela-Mihaela Muresan, Do All Agnostics and Atheists Think the Same Way about Tax Evasion? A 78-Country Study, (June 28, 2023).
• Peter J. Smith & Robert W. Tuttle, Establishment Clause Mythology, (GWU Legal Studies Research Paper No. 2023-55 (2023).

From SmartCILP:

• Loren Jacobson, Abortion and the Spiritual Imperative: Are the New Abortion Bans Susceptible to Religion Clause Challenges?, 72 DePaul Law Review 663-702 (2023).
• Symposium: Liberalism, Christianity & Constitutionalism, 98 Notre Dame Law Review 1439-1848 (2023).

Texas AG Sues Yelp for $1M for Mislabeling Pregnancy Resource Centers

Texas Attorney General Ken Paxton last week filed a civil lawsuit against Yelp contending that it violated the Texas Deceptive Trade Practices- Consumer Protection Act by posting a "consumer notice" on the Yelp listings of anti-abortion Crisis Pregnancy Centers. The complaint (full text) in State of Texas v. Yelp, Inc., (TX Dist. Ct., filed 9/28/2023), alleges in part:

Yelp has engaged in deceptive trade practices, including disparagement of the goods, services, or business of another by false or misleading representation of facts.... Specifically, Yelp posted a “consumer notice” on the Yelp business pages of every pregnancy resource center across the nation, misleadingly stating that these centers “typically provide limited medical services and may not have licensed medical professionals onsite.” That was false. Pregnancy resource centers provide significant care and counseling to pregnant women. And they commonly provide significant medical services, and have licensed medical professionals onsite....

In or around February 2023, after approximately six months of displaying false and misleading disclaimers on the business pages of pregnancy resource centers, Yelp finally removed the misleading disclaimer regarding the alleged lack of medical professionals and medical services onsite, replacing it with a new disclaimer that stated: “This is a Crisis Pregnancy Center. Crisis Pregnancy Centers do not offer abortions or referrals to abortion providers.”

In addition to injunctive relief, the suit asks for civil penalties, attorneys' fees, restitution and costs that total at least $1 million. Paxton's office issued a press release announcing the filing of the lawsuit. [Thanks to Scott Mange for the lead.]

8 Federal Agencies Clarify When Title VI Bars Discrimination Related to Religion

The White House announced yesterday that eight federal agencies have "clarified—for the first time in writing—that Title VI of the Civil Rights Act of 1964 prohibits certain forms of antisemitic, Islamophobic, and related forms of discrimination in federally funded programs and activities."  The agency actions are seen as part of President Biden’s National Strategy to Counter Antisemitism.  Title VI of the 1964 Civil Rights Act covers discrimination on the basis of race, color, or national origin in programs and activities receiving federal financial assistance. It does not explicitly bar religious discrimination.  The agency Fact Sheets publicized by the White House each focuses on the kind of discrimination against persons of a particular religion that could come within the scope of Title VI. Here are the agencies' interpretations:

Department of Agriculture Fact Sheet; Department of Health and Human Services Fact Sheet; Department of Homeland Security Fact Sheet; Department of Housing and Urban Development Fact Sheet and Memorandum; Department of Interior Fact Sheet; Department of Labor Fact Sheet; Department of Treasury Fact Sheet; Department of Transportation Fact Sheet.

Court Preliminarily Enjoins Montana's Ban on Transgender Treatments for Minors

 In Van Garderen v. State of Montana, (MT Dist. Ct., Sept. 27, 2023), a Montana trial court granted a preliminary injunction against enforcement of SB 99, the state's ban on surgical and hormonal treatments for minors suffering from gender dysphoria.  It concluded that the law likely violates the Equal Protection and Privacy provisions of the Montana Constitution.  The court said in part:

The Court finds that SB 99 likely violates Montana's Equal Protection Clause because it classifies based on transgender status—making it a sex-based classification—and because it infringes on fundamental rights, subjecting it to strict scrutiny. The Court finds that SB 99 likely does not survive strict scrutiny because it does not serve its purported compelling governmental interest of protecting minor Montanans from pressure to receive harmful medical treatments. Alternatively, the Court finds that SB 99 is unlikely to survive any level of constitutional review. The Court also finds that SB 99 likely violates Plaintiffs’ right to privacy under Montana’s Constitution because the Court does not find that the treatments proscribed by SB 99 constituted “medically-acknowledged, bonafide health risk[s][,]” and because, again, SB 99 likely cannot survive strict scrutiny.....

LawDork reports at greater length on the decision. [Thanks to Scott Mange for the lead.] 

School Board Member Sues to Vindicate Her Reading of Bible at Board Meetings

Suit was filed this week in an Arizona federal district court by Heather Rooks, a member of the Peoria, Arizona school board, seeking a declaratory judgment to vindicate her practice of quoting Scripture during the period of each Board meeting devoted to members making their own comments.  Advocacy organizations had complained about Rook's practice, and legal counsel to the Board furnished an opinion that reading Scripture during Board meetings violates the Establishment Clause. The complaint (full text) in Rooks v. Peoria Unified School District, (D AZ, filed 9/26/2023) seeks a judicial ruling that plaintiff's practice does not violate the Establishment Clause or the Arizona Constitution, that punishment for her practice violates her free speech and free exercise rights, and that she is entitled to absolute legislative immunity for her recitation of Scripture. Fox News reports on the lawsuit.

EEOC Sues on Behalf of Muslim Employee

 On Tuesday, the EEOC announced that it has filed a Title VII lawsuit against Blackwell Security Services, Inc., a hotel and condominium staffing company, for refusing to accommodate a Muslim employee's religious practice.  According to the EEOC:

[T]he employee, who worked as a concierge in Chicago, Illinois, is a practicing Muslim who wears a beard as required by his religious beliefs. Soon after he was hired, he was told by a Blackwell supervisor that it was company policy that all employees be clean shaven. The employee requested an exemption from the policy to accommodate his religious practice. However, according to the EEOC’s complaint, Blackwell told him to shave his beard or be terminated. To avoid losing his job, the employee complied.