By DEACON MIKE MANNO
It’s getting more and more difficult trying to follow all the legal cases involving religious liberty as time goes on. Unfortunately, for most of us, attention is directed to key cases at the Supreme Court, with hopes that the new conservative balance there will help protect the rights of believers.
So to sort through some of the cases that haven’t reached the Supreme Court, but could, I thought I’d give you an advance look at three of the cases that have not arrived at the Supreme Court — yet.
The first is a new case, filed just days ago as I write this: Catholic Healthcare International v. Genoa Charter Township (Eastern District of Michigan). The suit centers around a proposal by Catholic Healthcare to create a prayer campus on a 40-acre property which was to have a modest 95-seat chapel with parking for 39 cars. The plans for the chapel — St. Pio Chapel — would put it about 600 feet off the nearest public road. The rest of the property is to be preserved for trails to “allow people to find peace in the natural surroundings.”
In addition to the chapel, which would host Eucharistic adoration, there is incorporated into the plan movable Stations of the Cross, which have already been placed on the property. All in all, the building plans only call for the use of approximately five of the forty acres, which will maintain the rural character of the property.
While the planning for the property is consistent with similar uses in the area, and the property is zoned for such use, the property owner still needs approval by the township. Catholic Healthcare’s application for a permit was approved by the township’s planning commission by a 4-3 vote, but was rejected by the township 5-2 without legal justification, based “upon amorphous, subjective considerations that were contrary to the facts and which permit an anti-religious/anti-Catholic animus to drive the township’s decision,” according to the lawsuit.
In addition to the denial, the township has told Catholic Healthcare that it now must remove the Stations of the Cross that are currently on the property as well as an image of Santa Maria delle Grazie (Our Lady of Grace), and one of St. Padre Pio, in other words, according to the suit, “Defendants demand that plaintiffs cleanse the property of anything religious.”
Interestingly, on Faith On Trial, our radio program, Robert Muise, co-founder and senior counsel for the American Freedom Law Center which is representing Catholic Healthcare, said that “there was quite bit of anti-Catholic sentiment that was expressed at the township meetings and on social media.”
In a written statement, he also said, “The Township’s rejection of our clients’ right to religious worship on CHI’s private property is not in keeping with our proud tradition of accommodating people of faith, and, in fact, it violates our clients’ fundamental rights protected by the United States and Michigan Constitutions and federal statutory law.”
The second case is School of the Ozarks, Inc., d/b/a College of the Ozarks v. Joseph R. Biden, Jr. et al. (Western District of Missouri). Shortly after taking office, Mr. Biden issued an executive order that requires religious colleges to place biological males into female dormitories and to assign them as female roommates. In response the U.S. Department of Housing and Urban Development “hastily issued” — without notice or ability to comment — a directive prohibiting the college from discriminating on the basis of sexual orientation or gender identity in dormitories. It also prohibited the college from making any statements to the contrary concerning the dormitories.
The college immediately filed a pre-enforcement suit seeking protection from the new directive, claiming: “The Directive imposes an immediate and binding legislative rule under the Fair Housing Act, prohibiting all regulated entities, including the College, from discriminating on the basis of sexual orientation or gender identity both in occupancy of their dwellings and in policies governing those dwellings.”
In late May a federal judge, Roseann Ketchmark, an Obama appointee, ruled against the Christian college, thus requiring it to allow shared dorm rooms and shower facilities with students of the opposite biological sex. The judge’s ruling was based on what she termed the college’s lack of standing.
But on our radio program, Ryan Bangert, vice president of legal strategy for the Alliance Defending Freedom who is representing the college, challenged that claim. He said that pre-enforcement claims, such as the school was pursuing, are specifically authorized by federal law.
Additionally Bangert pointed out that President Biden’s order to the federal agencies directed it to interpret the word “sex” to include “gender identity and sexual orientation”; however, the Federal Fair Housing Act does not include that language. And HUD, as it proceeded to adopt the president’s interpretation, failed to follow the mandate of the federal Administrative Procedures Act, which requires public notice of a proposed change and an ability for the public to comment. Had it done so, the sweeping problems with it would have been presented to the agency to at least consider, he said.
“The Fair Housing Act hasn’t changed. What has changed is HUD,” Bangert told our audience.
Said the school’s president, Dr. Jerry Davis: “Religious freedom is under attack in America, and we won’t stand on the sidelines and watch. To threaten religious freedom is to threaten America itself. College of the Ozarks will not allow politicians to erode the essential American right or the ideals that shaped America’s founding.”
If the school fails to comply it could face fines of up to six figures.
The third case is from the Second Circuit Court of Appeals, People v. Griepp. The case began after former New York Attorney General Eric Schneiderman filed an injunction against a pro-life group from Brooklyn for “sidewalk counseling” outside abortion clinics. The state has a Freedom of Access to Clinic Entrances law which prohibits intentional interference with access to a clinic by force, threats of force or physical obstruction. Specifically protected by the law are peaceful pro-life activities.
The state brought action against the group, Church@The Rock, and its pastor, Rev. Kenneth Griepp, back in 2017. The attorney general’s motion for an injunction against Pastor Griepp and his church was for their activities outside an abortion facility in Queens. Attorneys for the Thomas More Society argued that the case was without merit and it was an assault on the First Amendment rights of pro-life sidewalk counselors.
In the initial court ruling, the lower court, in a 103-page opinion denied the state’s request for an injunction and allowed the sidewalk counselors to continue their ministry outside the clinic. The Second Circuit Court of Appeals then overturned the lower court’s decision which had protected the sidewalk counselors.
The Thomas More Society, on behalf of the pro-life group then petitioned the circuit court for a rehearing en banc, which is with all the judges of the court, not just a three-judge panel. At the end of May the appeals court, in a 119-page opinion, took the extraordinary step to vacate its earlier opinion and agreed to rehear the case en banc.
Statistics for the Second Circuit indicate it only grants about 0.0003 percent of petitions seeking a rehearing en banc — that is, approximately three out of every 10,000 petitions.
Stephen Crampton, Thomas More Society senior counsel, said, “It appears that even the judges in the majority on the panel found their original opinion indefensible. We are pleased that the fundamental First Amendment rights of our clients have been restored and look forward to returning to the district court and finishing the case once and for all.”
We’ll keep watching and see what happens.
(You can reach Mike at: DeaconMike@q.com and listen to him every Thursday on Faith On Trial at 10 a.m. Central on IowaCatholicRadio.com.)
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