A federal district court in Illinois recently denied a church’s preliminary injunction motion and dismissed its suit alleging that a zoning ordinance violates RLUIPA and the Equal Protection Clause. In all of its zoning districts, the Village of Homewood allows places of worship only as special uses. Because non-religious assembly uses are permitted by right in some districts, the Word Seed Church claimed that the ordinance substantially restricts its ability to obtain property in Homewood. Although the Church never sought the required special use permit, it filed suit alleging that the ordinance violates the equal terms, unreasonable limitations, and substantial burden provisions of RLUIPA and the Equal Protection Clause. The Church also moved for a preliminary injunction against enforcement.
Continue Reading Court Dismisses RLUIPA and Equal Protection Clause Case for Lack of Standing
Eleventh Circuit Remands Some RLUIPA and Related Claims in Buddhist Center Zoning Permit Case
In November, the court sent parts of a case about a seemingly-unwelcome religious center back for district court reconsideration. The Thai Meditation Association of Alabama, a Buddhist organization, had applied for zoning permits to construct a meditation and retreat center in a residential area of Mobile. The neighborhood expressed fierce opposition to the construction, and the Planning Commission denied the application. Although the Planning Commission—and the City Council on appeal—cited concerns about site access, traffic, and compatibility with the neighborhood, the Association believed the denial was rooted in religious animosity.
Continue Reading Eleventh Circuit Remands Some RLUIPA and Related Claims in Buddhist Center Zoning Permit Case
Court Dismisses Claims Against D.C. Over “Black Lives Matter” Street Mural
Late last month, a federal district court in Washington, D.C. dismissed First Amendment and other constitutional claims filed against the District by a non-Black Christian group pertaining to the now-famous “Black Lives Matter” mural painted on 16th Street.
Following widespread protests in U.S. cities in response to the death of George Floyd, a Black man, at the hands of white police officers in Minneapolis—and shortly after federal law enforcement officials cleared protesters in Lafayette Park with tear gas to allow for a photo opportunity for President Trump—D.C. Mayor Muriel Bowser directed the D.C. Department of Public Works to paint the words “Black Lives Matter” in large yellow letters on 16th Street. The mural, which is in close proximity to the White House, was widely acknowledged as expressing support for protesters and the Black community and in protest of actions taken by the President.
Continue Reading Court Dismisses Claims Against D.C. Over “Black Lives Matter” Street Mural
Supreme Court Denies Church’s Application for Injunctive Relief in First Amendment Challenge to COVID-19 Restrictions
This post was authored by Otten Johnson summer associate Laura Salter. Laura is a rising third-year law student at the University of Colorado Law School.
In late May, the U.S. Supreme Court denied a Church’s application for injunctive relief from California’s temporary restrictions on religious gatherings in South Bay United Pentecostal Church v. Newsom. Governor Newsom’s executive order, which parallels mandates issued in several states since March, limited both religious and secular public gatherings in an attempt to curb the spread of COVID-19. The executive order also allowed certain businesses to remain open–for example, grocery stores and hardware stores.
The order temporarily capped worship service attendance at 25% of building capacity or 100 attendees, whichever is lower. The applicants in South Bay filed suit under the Free Exercise Clause of the First Amendment, contending that secular activities impacted by the order, such as retail shopping or on-site office work, were afforded more generous occupancy caps than places of worship, and that the discrepancy amounted to unjustified and unconstitutional religious discrimination. The Ninth Circuit Court of Appeals had previously denied the church’s application for an injunction pending appeal, after the district court in the case denied the plaintiff’s motion for a temporary restraining order. The church sought a temporary injunction from the Supreme Court, which would have the effect of staying the executive order while the case was being litigated.
Continue Reading Supreme Court Denies Church’s Application for Injunctive Relief in First Amendment Challenge to COVID-19 Restrictions
Federal Court in New Mexico Denies Temporary Restraining Order in First Amendment Challenge to COVID-19 Restrictions
Last week, in one of the first judicial decisions addressing a First Amendment challenge to state-level social distancing requirements, a federal judge in New Mexico has denied preliminary injunctive relief to a church. This outcome differs from another recently-decided case in Kentucky, where a district court enjoined enforcement of a city restriction that applied exclusively to drive-in church services.
Like most other states, New Mexico has taken significant steps to combat the coronavirus. These actions began on March 11 with the declaration of a state of emergency, and urging from public officials to avoid gatherings and non-essential travel, and to engage in social distancing. On March 24, the state ordered non-essential businesses to close, and prohibited indoor gatherings of more than five people, with a special exemption for houses of worship. That was followed on March 27 by an order for recent travelers to self-quarantine. On April 6, the state issued another order, this time prohibiting outdoor gatherings, but again exempting religious worship. With Passover, Ramadan, and Easter approaching, the governor and health department encouraged religious organizations to use online methods of outreach. On April 11, the day prior to Easter, the state issued a modified no-gathering order, this time including religious organizations in its sweep.
Legacy Church, which has nearly 20,000 members and locations in Albuquerque, Rio Rancho, and Edgewood, livestreamed its Easter services, but did not prohibit members from attending services in person. The church has indicated that it plans to continue to hold in-person services during the COVID-19 pandemic. The church filed its lawsuit against the state and its Secretary of Health, on the evening of April 11, and on April 14, filed a motion for a temporary restraining order allowing Legacy to conduct in-person services.
Continue Reading Federal Court in New Mexico Denies Temporary Restraining Order in First Amendment Challenge to COVID-19 Restrictions
Supreme Court Rules That Cross Monument Can Remain, Despite Religious Meaning
In a widely-anticipated decision, the U.S. Supreme Court ruled late last month that a large concrete cross located on public property at a major intersection in Bladensburg, Maryland, could remain in place. The nearly 90-year-old cross, which was placed to honor victims of World War I, had been challenged by an atheist organization as a violation of the First Amendment’s prohibition on establishment of religion.
In a fractured decision, seven of the Justices agreed that the cross could stay. Writing for a plurality of the Court, Justice Alito argued that, although the Latin cross has a religious meaning, its longtime placement at a major intersection as a war memorial meant that it had taken on a secular meaning as well. In light of this longstanding history, he concluded that the cross was not a violation of religious liberty. In rendering his opinion, Justice Alito eschewed use of the widely-criticized Lemon test, developed by the Supreme Court in 1971, which looks at the government’s purpose and the effect of a regulation to determine whether an unconstitutional establishment of religion is created. Justices Breyer and Kagan concurred in the opinion, noting that each Establishment Clause case must be reviewed individually and observing that no particular judicial test works in every situation.
Continue Reading Supreme Court Rules That Cross Monument Can Remain, Despite Religious Meaning
Federal Court Denies Preliminary Injunction in Boston Flag Case
The City of Boston has three flagpoles in the plaza in front of its city hall. Typically, the city displays an American flag and POW/MIA flag on one pole and the flag of Massachusetts on the second pole. The third pole is used for the City of Boston flag, or alternatively, the flag of a third party. The third pole has been used for flags of foreign nations, civic organizations, the LGBT rainbow flag, and others. Parties can submit applications to fly their flag on the third pole, and the city has guidelines that prohibits flags that involve illegal or dangerous activities or conflict with scheduled events. The city reviews applications to determine whether a flag is consistent with the city’s message, policies, and practices, but does not have any guidelines as to the content of the flags. When an applicant was denied the opportunity to place a “Christian flag” on the City Hall on the grounds that the city refrains from flying religious flags on the Plaza, he filed suit.
Late last month, on the plaintiff’s motion for preliminary injunction, a federal district court found for the city. The court determined that the display of flags in front of City Hall constituted government speech. Applying the factors established by the Supreme Court in Pleasant Grove City v. Summum and Walker v. Texas Division, Sons of Confederate Veterans, the court found that flags are a longstanding form of government speech, the flags in front of City Hall are likely understood to be government speech, and the city has effective control over the flags in front of City Hall. Finding that the flags constitute government speech, that effectively ended the First Amendment inquiry.
Continue Reading Federal Court Denies Preliminary Injunction in Boston Flag Case
Appeals Court Finds That Concrete Cross Violates Establishment Clause, But Is Reversal In Sight?
Last week, a three-judge panel of the Eleventh Circuit Court of Appeals held that a 75-year old cross displayed in Pensacola, Florida’s Bayview Park was a violation of certain individuals’ constitutional rights under the First Amendment’s Establishment Clause, which prohibits the establishment of religion. But the court’s decision was based entirely on its “prior panel precedent” rule—meaning that the court was bound by a 35-year old decision on nearly identical facts—and the panel openly questioned the correctness of its decision.
Three individuals, represented by the American Civil Liberties Union, brought the case in federal district court in Florida. They alleged that they felt offended by the presence of the cross in the park. Pensacola moved to dismiss on standing grounds, arguing that the plaintiffs’ injuries were sufficient ethereal so as not to pass muster under current-day standing doctrine. The parties also filed cross-motions for summary judgment on the question of whether the cross violated the Establishment Clause.
Continue Reading Appeals Court Finds That Concrete Cross Violates Establishment Clause, But Is Reversal In Sight?
Religious Pregnancy Counseling Organization Barely Survives Summary Judgment on Religious Land Use Claim
Although this blog often focuses on the First Amendment’s Free Speech clause, we occasionally wander into the First Amendment cases involving religious exercise as well. A Hand of Hope Pregnancy Resource Center v. City of Raleigh, emerged from Raleigh’s determination that Hand of Hope could not operate a religious pregnancy counseling center in a residential zone district, and therefore offers a bit of both.
Hand of Hope had previously operated a pregnancy resource center in Raleigh, where it offered clients both spiritual guidance and reproductive health information. Its services also included pregnancy testing and
Continue Reading Religious Pregnancy Counseling Organization Barely Survives Summary Judgment on Religious Land Use Claim
No Christmas in July for Archdiocese of Washington; Appeals Court Affirms Denial of Preliminary Injunction
Last December, we reported on a federal district court’s denial of a motion for preliminary injunction relating to the Archdiocese of Washington’s unsuccessful efforts to post Christmas-season advertising on transit vehicles owned and operated by the Washington Metropolitan Area Transit Authority. Unfortunately for the Archdiocese, Christmas did not come in July either. Last week, the federal Court of Appeals for the D.C. Circuit affirmed the denial of preliminary injunctive relief.
The facts of the case are available on our post regarding the district court’s decision.
On appeal, the appellate court (which included as a panelist Supreme Court nominee Judge Kavanaugh) agreed with the district court. First, the court agreed that the advertising space on WMATA transit vehicles constitutes a non-public forum, where the government can exercise greater control over content yet must adhere to requirements of viewpoint neutrality and reasonableness. In so ruling, the D.C. Circuit joins a majority of federal appeals courts that have now ruled that transit advertising spaces are non-public fora.
Continue Reading No Christmas in July for Archdiocese of Washington; Appeals Court Affirms Denial of Preliminary Injunction