Catholic Student Sues After He Is Removed As University Student Senate President Because of His Views

Suit was filed this week in Florida federal district court claiming that plaintiff's free speech and free exercise rights were infringed when he was removed as president of Florida State University's Student Senate.  The complaint (full text) in Denton v. Thrasher, (ND FL, filed 8/31/2020), alleges in part:

Mr. Denton is a devout Catholic, and he expressed basic Catholic teachings to other Catholic students in a private group chat. But, because Catholic teachings have implications for some social issues that some consider offensive, those messages were shared, student outrage was fomented, and the Student Senate implemented an ad hoc religious test for office: no one with Mr. Denton’s beliefs can hold a leadership position in our Student Senate (even if they only talk about those beliefs in private)....

The complaint describes the contents of plaintiff's group chat with members of the Catholic Student Union:

One student shared a link to a video on YouTube that raised advertising and donation revenue for several organizations.... Mr. Denton observed that, “The various funds on that list are fine causes as far as I know, but everyone should be aware that BlackLivesMatter.com, Reclaim the Block, and the ACLU all advocate for things that are explicitly anti-Catholic.” ... “BlackLivesMatter.com fosters ‘a queer-affirming network’ and defends transgenderism. The ACLU defends laws protecting abortion facilities and sued states that restrict access to abortion. Reclaim the Block claims less police will make our communities safer and advocates for cutting PDs’ budgets. This is a little less explicit, but I think it’s contrary to the Church’s teaching on the common good.”

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

Kentucky AG Says Closing Religious Schools In COVID Pandemic Is Unconstitutional

Last month, Kentucky's Attorney General issued Opinion OAG-20-13 (Aug. 19, 2020) concluding that state or local officials may not order the closure of religiously affiliated schools that comply with reasonable social distancing and hygiene guidelines during the COVID pandemic. The Opinion says in part:

Given the central importance of religious education to faith communities, any order by a state or local official to close a religiously affiliated school likely would “prohibit[] the free exercise” of religion in violation of the First and Fourteenth Amendments, especially if the government continues its arbitrary manner of picking and choosing which institutions must close and which may remain open to the public. U.S. Const. amends. I, XIV.

In addition, such an order likely would violate Kentucky’s Religious Freedom Restoration Act, KRS 446.350, which provides that the government may not “substantially burden” a sincerely held religious belief “unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.”...

Religiously affiliated schools in the Commonwealth have pledged to heed these expert recommendations, and guidance to wear face coverings, wash hands frequently, and maintain social distancing of six feet. For that reason, and considering that various other activities and gatherings may move forward—it is difficult to imagine how closing religiously affiliated schools could pass Constitutional or statutory muster....

[Thanks to Eugene Volokh via EpidemicLaw for the lead.]

7th Circuit: Ministerial Exception Does Not Cover Hostile Work Environment Claims, Absent Tangible Employment Action

In Demkovich v. St. Andrew the Apostle Parish, (7th Cir., Aug. 31, 2020), the U.S. 7th Circuit Court of Appeals, responding to a question certified to it by an Illinois federal district court held by a 2-1 vote that the ministerial exception doctrine does not bar hostile work environment claims brought by a ministerial employee where no tangible employment action was taken.  In the case, the music director of a Catholic church alleged that his supervisor harassed an humiliated him about his sexual orientation, as well as his weight and his medical issues.  The majority held in part:

The ministerial exception gives religious organizations the power to use the full range of tangible employment actions to select and control their ministerial employees without judicial review or government interference under these federal statutes. These employers are thus able to control their employees in every way that would be necessary to exercise their religious freedoms. It is hard to see how the Church could not have adequately controlled plaintiff as a ministerial employee by deciding whether to hire him and whether to fire him, or by deciding his job duties, his place of work, his work schedule, his compensation, the resources he needed to work, and so forth.

Subjecting plaintiff to the abuse alleged here is neither a statutorily permissible nor constitutionally protected means of “control” within the meaning of Hosanna–Tabor.

Judge Flaum dissented, saying in part:

Beyond infringing on the Church’s free exercise rights in this case, allowing ministers to bring hostile work environment claims will “gravely infringe” on the rights of religious employers more generally “to select, manage, and discipline their clergy free from government control and scrutiny” by encouraging them to employ ministers that lessen their exposure to liability rather than those that best “further [their] religious objective[s].”

Recent Articles of Interest

 From SSRN:

• Mehwish Shaukat, American Muslim Women: Who We Are and What We Demand From Feminist Jurisprudence, 31 Hastings Women's L.J. 155 (2020).
• Jay Wexler, Secular Invocations and the Promise of Religious Pluralism, (Roger Williams University Law Review, Forthcoming).
• Thomas Charles Berg & Douglas Laycock, Espinoza, Government Funding, and Religious Choice, (Journal of Law and Religion, Forthcoming).
• Anton Sorkin, 'Them:' Bridging of Divides Between Distant Neighbors After Masterpiece Cakeshop, (University of San Francisco Law Review, 2019).
• Robert K. Vischer, How Distinctive Should Catholic Law Schools Be, (Journal of Catholic Legal Studies, forthcoming).
• Jeffrey A. Redding, Queer/Religious Friendship in the Trump Era, (August 26, 2020).
• Ronald J. Colombo, The Past, Present, and Future of Christian ADR, (Cardozo Journal of Dispute Resolution (Forthcoming)).
• Marc Spindelman, The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases, Part VI, (Ohio State Law Journal Online, Vol. 81, 2020).
• Anthony McMullen & Nicholas Williams, Title VII Now Protects LGBTQ Employees: Where Employers Go from Here, (July 20, 2020).

From SSRN (Non-U.S. Law):

• Anika Gray & Taitu Heron, A Legislative Review of Restrictive Provisions Governing Women’s Access to Abortion in the Eastern Caribbean, (March 19, 2020).
• Wellingtone Edaki, Kadhis’ Court Jurisdiction Conundrum; Interfaith Marriage and Legal Conflict in the Union, (July 1, 2020).

From SmartCILP:

• The Second International Conference on Climate, Nature, and Society: Selected Conference Excerpts, [Abstract], 32 St. Thomas Law Review 3-30 (2019). Articles by: Morgan, Temperince; Antal, Jim; Kirtman, Ben; Gilbert, Oliver III; Rodriguez, Jose Javier; Vinciguerra, Tebaldo; Salkin, Jeffrey K; Ahmad, Nadia B; Gladwin, Ryan; Maxwell-Carroll, Tania; Cioffi, Alfred.
• Interview with Khaled Beydoun (hosted by Nina Mozeihem and Samuel Bagenstos), 52 University of Michigan Journal of Law Reform 903-922 (2019).

10th Circuit: Inmate Has Equal Protection, But Not RFRA, Claim Over Prayer Space

 In Tenison v. Byrd, (10th Cir., Aug. 28, 2020), the U.S. Tenth Circuit Court of Appeals reversed an Oklahoma federal district court's dismissal of a Muslim inmate's claim that his equal protection rights were violated when he was not allowed to pray in the prison day room. Plaintiff alleged that Christian prayer was allowed in day rooms. The court concluded:

If believed, Tenison’s evidence is sufficient for a reasonable factfinder to conclude that Christians seeking to practice their religion in the dayroom deliberately are treated differently (and more favorably) than Muslims.

The court, however, rejected plaintiff's claim that his free exercise rights under the 1st Amendment and RFRA were  substantially burdened, saying in part:

We are not persuaded, however, that requiring Tenison to return to his cell to pray either prevents him from praying or subjects him to substantial pressure not to pray. Tenison is not prevented from praying; he simply must plan his dayroom time around the times he must be in his cell to pray. And having to forgo an unspecified amount of dayroom time does not amount to substantial pressure not to return to his cell to pray.

RFRA Claim For Insisting On Social Security Number In Passport Application Moves Ahead

 In Carmichael v. Pompeo, (D DC, Aug. 28, 2020), three individuals sued the State Department because it insisted that they furnish their Social Security numbers in order to renew their passports. Plaintiffs claim that identifying themselves with Social Security numbers violates their Christian beliefs. The court dismissed most of plaintiffs' claims, but allowed them to move forward, among others, with their claim under the Religious Freedom Restoration Act. The court concluded that plaintiffs had adequately alleged a substantial burden on their religious exercise:

They must choose between adhering to their religious beliefs—the sincerity of which is not challenged by the Government nor questioned by the Court—and receiving a government benefit.

Ministerial Exception Doctrine Does Not Apply To Hostile Work Environment Claim

In Middleton v. United Church of Christ, (ND OH, Aug. 26, 2020), an Ohio federal district court held that the ministerial exception doctrine does not preclude a minister bringing a hostile work environment claim, at least where the claim does not involve the court in excessive entanglement with religious matters. The court said in part:

[A]fter examining Middleton’s first cause of action, the court concludes that it does not implicate “any matters of church doctrine or practice.” ... Middleton’s hostile workplace claim involves allegations of racial and gender harassment that are wholly unrelated to Defendants’ religious teachings. ....

Nevertheless the court went on to dismiss the hostile work environment claim, saying in part:

While Middleton describes interactions that are unprofessional and unpleasant, none of the alleged conduct was physically threatening or humiliating. At most, these sporadic comments constituted “offensive utterances,” which “do not rise to the level required by the Supreme Court’s definition of a hostile work environment.”

The court held that plaintiff's breach of contract and promissory estoppel claims were barred by the ministerial exception doctrine. [Thanks to Heather Kimmel for the lead.]

FDA Asks SCOTUS To Stay Injunction On Medical Abortion Access

Yesterday the federal government filed with the U.S. Supreme Court an Application For A Stay of An Injunction (full text) in American College of Obstetricians and Gynecologists v. U.S. Food and Drug Administration. In the case, a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of Maryland's in-person requirements that bar 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 4th Circuit refused to stay the injunction pending appeal. (See prior posting.) In its Application, the FDA argued in part:

Given that surgical methods of abortion remain widely available, the enforcement of longstanding safety requirements for a medication abortion during the first ten weeks of pregnancy does not constitute a substantial obstacle to abortion access, even if the COVID-19 pandemic has made obtaining any method of abortion in person somewhat riskier.

 The Hill reports on the Application. [Thanks to Scott Mange for the lead.]

Zoning Board Members Have Qualified Immunity In Mosque's Suit

In Adam Community Center v. City of Troy, (ED MI, Aug. 26,2020), a Michigan federal district court held that members of a city's Zoning Board of Appeal who voted to deny a zoning variance sought by a mosque are entitled to qualified immunity in a suit against them personally for damages.  The court said in part:

The record does not present sufficient evidence to establish that the Individual Defendants knew or should have known their straightforward application of the seemingly legal zoning regulations, which impose different setback requirements on places of worship and places of business, would violate Plaintiff’s constitutional rights. And Plaintiff provides no legal authority clearly establishing that a government official violates a citizen’s right to freedom of religion when it enforces an apparently valid zoning ordinance for facially neutral reasons that may or may not interfere with the citizen’s right to express her religion. 

Moreover, Plaintiff fails to present sufficient evidence to establish that each of the of the Individual Defendants, in voting to deny Plaintiff’s variance application, acted with discriminatory intent or religious annimus...

However, in finding that the Individual Defendants are entitled to qualified immunity, the Court cautions that its decision here should in no way be construed as a finding that Plaintiff’s constitutional rights were not violated by the ZBA’s decision, or as absolving the ZBA , the City, or any of the Entity Defendants from potential liability.

Court Enjoins DOE Rule Favoring Funding of Private Schools Under CARES Act

In State of Washington v. DeVos, (WD WA, Aug. 21, 2020), a Washington federal district court granted a preliminary injunction barring enforcement of a Guidance and an Interim Final Rule issued under the CARES Act by the Department of Education. The rule essentially encourages use of a formula that has the effect of increasing the proportion of CARES Act funding going to private schools (including religious schools), at the expense of public schools. Education Week reports on the decision. [Thanks to Mel Kaufman for the lead.]

5th Circuit Denies Stay of Decision Invalidating Texas Abortion Restrictions

In Whole Woman's Health v. Paxton, (5th Cir., Aug. 21, 2020), the U.S. 5th Circuit Court of Appeals in a 2-1 decision refused to stay a district court decision handed down nearly 3 years ago which struck down a Texas abortion law banning  the standard dilation and evacuation procedure. The majority explained:

[W]e address our dissenting colleague’s [Judge Willett's] view that the motion should be granted, and this case remanded, because the governing legal standards have supposedly changed in light of the Supreme Court’s decision in June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020).  Respectfully, this is not so. June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020), has not disturbed the undue-burden test, and Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), remains binding law in this Circuit.

The State’s stay motion is also patently procedurally defective.... [T]he problem here is that the State does not even attempt to explain why it would be “pointless” to move first in the district court.

[Thanks to Scott Mange for the lead.] 

Oregon's COVID-19 Limits On Religious Schools Upheld

 The Oregonian reports that on Aug. 20, an Oregon federal district court in Horizon Christian School et al v. State of Oregon denied a request for a temporary restraining order to allow three Christian schools to reopen in violation of Gov. Kate Brown's COVID-19 executive order.  In what was apparently an opinion delivered orally from the bench, the court said in part:

In my view the religious institutions here in K-through-12 aren’t being treated in any way differently than public K-through-12 institutions...

The harm the state is trying to prevent is death and not just death as in a few, but the possibility of a widespread pandemic killing our most vulnerable citizens...

6th Circuit Upholds Denial of Inmate's Religious Diet Request

 In Miles v. Michigan Department of Corrections, 2020 U.S. App. LEXIS 26666 (6th Cir., Aug. 20, 2020), the U.S. 6th Circuit Court of Appeals rejected a "Moorish American Moslem" inmate's claim that his rights under the Free Exercise clause and RLUIPA were violated when his request for a pork-free diet was denied. The court said in part:

As part of his request, Miles signed a statement agreeing to "not possess food items forbidden by my religion's teachings." The defendants explained that Miles's "request was denied because [he] made prison store purchases that were inconsistent with his professed religious dietary restrictions," namely the repeated purchase of pork products such as summer sausage and chili. Additionally, Leach averred in a supporting affidavit that "[a]llowing a prisoner to have a religious meal when he openly flaunts restrictions imposed on other same-faith prisoners could provoke [*7]  resentment amongst other prisoners who are adhering to the tenets, which could lead to violence within the facility." "Prison officials have a legitimate penological interest not only in controlling the cost of the [religious] meal program and ensuring that only those with sincere beliefs participate in the program, but also in maintaining discipline within the prison."

Recent Articles of Interest

 From SSRN:

• Audra Savage, COVID-1619: A Brief History of Racism, (August 10, 2020).
• Jianlin Chen & Phapit Triratpan, Black Magic, Sex Rituals and the Law: A Case Study of Sexual Assault by Religious Fraud in Thailand, (37(1) UCLA Pacific Basin Law Journal 25-57 (2020)).
• M.C. Mirow, Félix Varela y Morales (Cuba, 1788-1853), (M.C. Mirow and Rafael Domingo, eds., Law and Christianity in Latin America: The Work of Great Jurists (Routledge, 2020 Forthcoming)).
• Nicholas Aroney & Benjamin Saunders, Freedom of Religion in Australia, (in Matthew Groves, Daniel Meagher and Janina Boughey (eds), The Legal Protection of Rights in Australia (Hart Publishing, Forthcoming)).
• Ahmed Usman, Adultery, the Ground for Dissolution of Christian Marriage in Pakistan: Intersectional Constraint to Christian Women in Pakistan, (Pakistan Perspectives, Vol. 24, No.2, July-December 2019).
• Thomas Charles Berg, Religious Freedom Amid the Tumult, (Forthcoming, University of St. Thomas Law Journal, volume 17 (2021)).
• Fidelis Chuka Aghamelu, Abortion and the Dignity of Human Life: A Reflection on the Fifth Commandment and a Christian Political Response to Contemporary Culture of Death, (Journal of African Studies and Sustainable Development Vol. 2 No 5, 2019).
• Susanna Mancini & Michel Rosenfeld, Nationalism, Populism, Religion, and the Quest to Reframe Fundamental Rights, (Cardozo Law Review, Forthcoming).
• John Vlahoplus, Bostock, Zarda, and R.G & G.R. Harris Funeral Homes: Affirming Equality and Challenging Textualism, (Geo. Wash. L. Rev. On the Docket, 2020).
• Philip Hackney, The 1969 Tax Reform Act and Charities: Fifty Years Later, (Pittsburgh Tax Review, Vol. 17, p. 235, 2020).

From SmartCILP:

• A Symposium on Linda C. McClain’s Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law, 99 Boston University Law Review 2587-2736 (December 2019).
• Linda Ross Meyer, Unreasonable Revelations: God Told Me to Kill, (39 Pace Law Review 745-832 (2019)).

11th Circuit Invalidates School's Rule On Transgender Bathroom Assignments

 In Adams v. School Board of St. Johns County, Florida, (11th Cir., Aug. 7, 2020), the U.S. 11th Circuit Court of Appeals by a 2-1 vote held that a Florida high school's policy that prevented a transgender male from using the boy's bathroom violates the Equal Protection Clause as well as Title IX. The court said in part:

[W]e assume the government may promote its interest in protecting privacy by maintaining separate bathrooms for boys and girls or men and women. Mr. Adams, for his part, does not question the ubiquitous societal practice of separate bathrooms for men and women. Instead, Mr. Adams argues the School Board’s bathroom policy singles him out for differential treatment on the basis of his gender nonconformity and without furthering student privacy whatsoever. The record before us has persuaded us to his view.

The majority noted that the school relies on the student's sex designation on school enrollment forms, and not on their birth certificates. The majority went on:

 A public school may not punish its students for gender nonconformity. Neither may a public school harm transgender students by establishing arbitrary, separate rules for their restroom use. The evidence at trial confirms that Mr. Adams suffered both these indignities.

Chief Judge Pryor dissented, saying in part:

By failing to address head-on the lawfulness of sex-separated bathrooms in schools, the majority recasts the school policy as classifying students on the basis of transgender status. And based on this recasting, it reaches the remarkable conclusion that schoolchildren have no sex-specific privacy interests when using the bathroom. The majority opinion purports to allow only plaintiff Drew Adams, a female who identifies as a male, to use the boys’ bathroom, but the logic of this decision would require all schoolchildren to use sex-neutral bathrooms.

Lambda Legal issued a press release announcing the decision.

August 22: International Day Commemorating the Victims of Acts of Violence Based on Religion or Belief

Yesterday was designated by the United Nations as International Day Commemorating the Victims of Acts of Violence Based on Religion or Belief.  The designation was created by a Resolution (full text) passed by the General Assembly last May. The U.N. website devoted to the day links to a variety of relevant source material.

Establishment Clause Challenge To BLM Mural Dismissed For Lack of Standing

 In Penkoski v. Bowser, (D DC, Aug. 21, 2020), the D.C. federal district court dismissed for lack of standing a suit filed by a pastor and two lobbyists challenging the two-block long painting of "Black Lives Matter" on the pavement of 16th Street near the White House. Identifying themselves as non-Black Christians, plaintiffs claim that the painting violates both the Equal Protection Clause and the Establishment Clause. According to the court:

They claim that the Mural violates the Equal Protection Clause and the Establishment Clause because it labels them—non-black Christians—“second class citizens.” ... The “Black Lives Matter cult,” they allege, “is a denominational sect of the religion of Secular Humanism.” ... This is evidenced both by the BLM protestors’ behavior ... and the “scriptures lifted from the Black Lives Matter’s marxist liturgical creed".... The Mural, Plaintiffs claim, signals the District’s preference both for black citizens and for those that adhere to the BLM denomination.

The court found a lack of standing as to plaintiffs'equal protection claim, saying in part:

The Court does not doubt the sincerity of Plaintiffs’ feelings of ostracization nor quibble with their claims about the divisiveness of the Mayor’s actions.... But these feelings alone cannot justify standing.

It similarly found a lack of standing on plaintiffs' Establishment Clause claim, saying in part:

[A]s with their equal protection claim, Plaintiffs assert a psychological, stigmatic injury for their Establishment Clause claim....

[T]he development of the Establishment Clause and standing doctrines over the past fifty years counsels against adopting offended observer standing here and now, when no contrary precedent binds this Court. The Court, thus, declines to find that Penkoski, Sevier, and Christopher have standing just because they have been “expose[d]” to a display that offends them.

Summary Judgment Denied In Rastafarian's Title VII "Failure To Accommodate" Claim

 In EEOC v. Publix Supermarkets, Inc., (MD TN, Aug. 20, 2020), a Tennessee federal district court refused to grant summary judgment to the EEOC which claims that Publix Supermarkets refused to accommodate Guy Usher's Rastafarian religious beliefs that require him to wear his hair in dreadlocks. The court held that disputed issues of fact remain as to whether the Usher informed Publix that its grooming policy conflicts with his religious beliefs, and that factual questions remain as to whether Usher holds sincere religious beliefs on the matter. The court also allowed the EEOC to move ahead with its failure-to-hire claim, but not with its constructive discharge claim.

Teacher's Suit Over Pronouns Used In Addressing Transgender Student Is Remanded To State Court

 In Vlaming v. West Point School Board, (ED VA, Aug. 19, 2020), a high school teacher sued when he was fired for refusing to abide by school policy that required him to refer to a transgender male student using male pronouns. The suit was originally brought in a Virginia state court (see prior posting), but was removed to federal court by defendants. The suit contended that the school board's decision to fire the teacher violated his rights under the Virginia constitution and various state statutes. In this decision, the Virginia federal district court held that the case was incorrectly removed, and remanded the case to state court because it raises only state law issues.

New Jersey COVID-19 Limits On Indoor Church Services Upheld

In Solid Rock Baptist Church v. Murphy, (D NJ, Aug.  20, 2020), a New Jersey federal district court rejected a church's challenge to the limits on indoor worship services imposed in New Jersey governor's COVID-19 orders,  The court said in part:

Although Plaintiffs have made a compelling case that the Executive Orders were crafted with religious indifference, the Court may not invalidate the executive orders on those grounds alone. In the end, Plaintiffs have been unable to demonstrate that the restrictions on indoor gatherings were crafted with religious animus, have been applied unequally, or lack a rational relationship to a legitimate government objective....

Plaintiffs are rightfully disillusioned that the State has not prioritized indoor religious activity to the same degree as outdoor social justice protests. The State’s apathy to sincerely held religious beliefs, alone, however, does not establish unequal treatment as it pertains to indoor gatherings. Because the Court concludes that Plaintiffs have failed to establish that the Executive Orders, as they pertain to large indoor gatherings, are not facially neutral and generally applicable, the Court finds that Plaintiffs have not established a likelihood of success on the merits.