Thursday, September 18, 2014

Catholic Non-Profits Object To Newly Revised Contraceptive Mandate Rules

As reported yesterday by the Southwest Florida News-Press, Catholic non-profit instituitons have signaled their dissatisfaction with the Interim Final Rules under the Affordable Care Act issued last month in an attempt to meet objections to the contraceptive coverage mandate. (See prior posting.) In a Motion for Preliminary Injunction (full text) filed last week by the Becket Fund on behalf of Ave Maria University, the non-profit Catholic college takes issue with the government's claim that the new rules are consistent with the Supreme Court's order in the Wheaton College case:
The augmented rule demands far more than what the Supreme Court required in Wheaton, and, in fact, is substantively indistinguishable from the original rule that the Wheaton Court enjoined. Rather than simply requiring notice that Ave Maria is a religious nonprofit with a religious objection, the augmented rule would require Ave Marie to provide its insurance company’s name and contact information for the specific purpose of allowing HHS to issue a notice requiring the insurer to provide the exact same items through Ave Maria’s healthcare plan as if Ave Maria had given the insurer Form 700 directly. 
Simply routing the form through HHS is a distinction without a difference....

Air Force Will Allow Enlistees and Officers To Drop "So Help Me God" From Oath

The U.S. Air Force announced yesterday that effective immediately it would allow enlisted members and officers who wished to do so to omit the words "So help me God" from enlistment and officer appointment oaths.  The change comes after the Department of Defense General Counsel issued an opinion concluding that the omission is permissible despite language in federal statutes setting out the language of the oaths that include the phrase. The Air Force requested the opinion after an enlisted man who is an atheist insisted on omitting the phrase. (See prior posting.) According to ABC News, the other branches of the military already allow the omission, as did the Air Force until a policy change last year.

Poland's Supreme Court Upholds Airport Security Requirement To Remove Sikh Turban

According to Sikh Sangat News, Poland's Supreme Court yesterday ruled against Shaminder Singh Puri, an environmental expert who does a great deal of international travel, who sued the the Chief of Poland's Border Guard for violation of his religious rights.  Puri, a practicing Sikh, was asked on five occasions between 2009 and 2011 to remove his turban at Warsaw Airport. Puri, seeking damages and an apology, argued that security officials acted disproportionately by immediately requiring him to remove  his turban instead of first using other screening methods.  The Supreme Court held however that security guards were respectful of Puri's religion and, when ordering him to remove his turban, allowed him to do so in a separate room away from other passengers.

Wednesday, September 17, 2014

Court Says Hospital's Retirement Plan Is "Church Plan," Rejecting Magistrate's Recommendation

In Medina v. Catholic Health Initiatives, (D CO, Aug. 26, 2014), a Colorado federal district court disagreed with the interpretation of ERISA in a federal magistrate judge's recommendation (see prior posting) and held that a Catholic health system's retirement plan is an exempt "church plan." This is one of a series of cases filed around the country claiming an IRS 2002 Private Letter Ruling was legally incorrect in allowing plans that were not "created" by a church to claim the exemption. The suits seek to require the religiously-affiliated hospital plans to meet ERISA's funding and other requirements. The court held that it is enough under the relevant statutory provision that the retirement plan is "maintained by an organization controlled by or associated with a church...." BNA Daily Report for Executives (Aug. 28) [subscription required] reports that with this decision, federal district courts are split 2-2 on the issue, with four more cases pending.

Diocese Challenge To Charter School's Leasing of Catholic High School Property Moves Ahead

In Roman Catholic Diocese of Brooklyn, New York v. Christ the King Regional High School, (NY Queens Co. Sup. Ct., Aug. 21, 2014), a New York state trial court denied a Catholic high school's motion to dismiss a declaratory judgment action filed against it by the Brooklyn Diocese challenging its decision to lease a substantial portion of its property to a non-sectarian charter middle school. In 1976 the Diocese conveyed the school property to the educational corporation that operated the Catholic high school on the condition that the property would be reconveyed to the Diocese if it ceased to be used for a Catholic high school. While under New York property law failure to record the condition extinguished it as a possibility of reverter, the court held that the restriction is still enforceable as a matter of contract law.

European Court Says Turkey Should Offer Alevis Exemption From Compulsory Religion and Ethics Courses

In Mansur Yalçın and Others v. Turkey, (ECHR, Sept. 16, 2014) (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment held that Turkish schools have not made sufficient chagnes in required religion and ethics classes to accommodate Alevis.  As summarized in the Court's English language press release:
The fact that the curriculum of the religion and ethics classes gave greater prominence to Islam as practised and interpreted by the majority of the Turkish population than to other minority interpretations of Islam could not in itself be viewed as a departure from the principles of pluralism and objectivity which would amount to indoctrination. However, bearing in mind the particular features of the Alevi faith as compared with the Sunni understanding of Islam, the applicants could legitimately have considered that the approach adopted in the classes was likely to cause their children to face a conflict of allegiance between the school and their own values.
The Court failed to see how such a conflict could be avoided in the absence of an appropriateexemption procedure. The discrepancies complained of by the applicants between the approach adopted in the curriculum and the particular features of their faith as compared with the Sunni understanding of Islam were so great that they would scarcely be alleviated by the mere inclusion in textbooks of information about Alevi beliefs and practice.
A Chamber Judgment may be appealed to the Grand Chamber of the Court.

Professor's Law Review Article Used In Robocall By Opponent in Mayoral Race

In 2010, then-Associate Professor Jorge Elorza at Roger Williams University Law School published an interesting and sophisticated 65-page law review article in Pittsburgh Law Review titled Secularism and the Constitution: Can Government Be Too Secular?  (Given the timing, this may well have been his "tenure piece.") Elorza, now a full professor, is on leave and running as the Democratic candidate for mayor of Providence, Rhode Island.  WPRI News reported yesterday that the law review article has become the subject of a robocall attack by one of Elorza's opponents in the mayoral race, independent candidate Vincent A. “Buddy” Cianci Jr.:
The caller asks the listener to press 1 if they agree with Cianci that teaching about the existence or nonexistence of God “does not belong in schools,” or press 2 if they agree with Elorza that it would be acceptable “to teach in schools that there is no God.”

Tuesday, September 16, 2014

New Brunswick Law Society Members Call On Council To Revoke Approval of Christian Law School

In Canada, controversy over the new Christian-affiliated Trinity Western University Law School continues. The school, scheduled to open in 2016, requires students, faculty and staff to subscribe to its religious-based "community covenant" which, among other things, prohibits sex outside of heterosexual marriage. In June, the Council of the New Brunswick Law Society voted to accredit the law school, clearing the way for its graduates to practice in the province.  However, according to yesterday's Straight Talk, at a special general meeting held last week, Law Society members in an advisory vote of 137-30 called on the Council not to approve the school.

Pennsylvania Boy Charged With Desecrating Venerated Object After Facebook Photo of Simulated Sex With Jesus Statue

In Everett, Pennsylvania last week police charged a 14-year old boy with violating Pennsylvania's ban on desecration of venerated objects (18 Pa. Cons. Stat. § 5509) after he posted photos on Facebook showing him simulating oral sex with a statue of Jesus. According to a Pennsylvania State Police Report, the incident took place in July, and charges were filed in Juvenile Court on Sept. 9. Queerty reports that the statue belongs to the Christian organization Love In the Name of Christ.  An organization spokesman says it does not believe the boy should be prosecuted, and asked instead "for prayer for the young man."

Supporters of Scottish Independence Promise Protection of Catholic Schools

On Thursday, voters in Scotland will cast ballots on whether Scotland should break away from the United Kingdom and become an independent country. (Background from Wikipedia.) According to yesterday's Herald Scotland, just days ahead of the vote Roseanna Cunningham, the country's Legal Affairs Minister, promised that in the event of independence, parochial schools will be protected.  She said:
A Yes vote means that Scotland will have a written constitution and that means everyone can be assured that the constitution in place on Independence Day will uphold the rights and liberties of all, including freedom of religion and the protection of Catholic education.
In an advertisement yesterday, 100 members of the Catholic community urged a "yes" vote on independence.

Citing Hobby Lobby, Court Excuses Testimony From FLDS Member Who Has Religious Belief In Secrecy

Relying extensively on both the 10th Circuit and Supreme Court opinions in Hobby Lobby, a Utah federal district court has held that the Religious Freedom Restoration Act allows Vernon Steed, a member of the FLDS Church, to refuse to testify in a Department of Labor administrative proceeding about the internal affairs and organization of the Church.  In Perez v. Paragon Contractors, Corp., (D UT, Sept. 11, 2014), the Department of Labor sought testimony from Steed as part of its investigation of possible child labor violations involving work by FLDS children at a Utah pecan ranch harvest. Steed however claimed he believes that the identity of FLDS Church leaders, the Church's organization and its internal affairs are sacred matters, designated by God, and that he has vowed not to discuss them.  The court held:
It is not for the Court to “inquir[e] into the theological merit of the belief in question”. Hobby Lobby, 723 F.3d at 1137. “The determination of what is a ‘religious’ belief or practice is more often than not a difficult and delicate task .... However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 714 (1981)....
Petitioner has failed to show that forcing Mr. Steed to answer the questions offensive to his sincerely held religious beliefs is the least restrictive means to advance any compelling interest it may have. For example, as a less restrictive alternative, Petitioner can continue with its efforts to obtain needed information from Paragon Contractors Corporation, Brian Jessop, Dale Barlow and others who contracted to manage the pecan ranch. See Hobby Lobby, 134 S.Ct. at *2780....
UPDATE: It should be noted that the body of the opinion refers to the objecting FLDS member as "Vernon Steed", while the caption labeling the motion being ruled upon refers to him as "Vergel Steed."

Air Force Grants Its First Religious Accommodation For Jewish Chaplain To Wear Beard

J Space News reports that last Wednesday the U.S. Air Force for the first time granted a religious accommodation under a January 2014 revised Department of Defense directive (see prior posting) to commission a bearded rabbi as a chaplain.  Rabbi Elie Estrin, director of a Chabad House at the University of Washington, was sworn in at McCord Air Force Base in Seattle.  In 2011 the Army commissioned a rabbi after litigation over whether he should receive an accommodation for wearing a beard. (See prior posting.)

Satanic Temple Will Seek To Hand Out Its Literature In Florida High Schools

As previously reported, once Orange County, Florida high schools allowed World Changers to distribute Bibles it had essentially created a limited public forum and felt compelled to allow Freedom From Religion Foundation to distribute at least some literature.  Now the next shoe is about to drop. Yesterday's Orlando Sentinel reports that a New York-based group, The Satanic Temple, plans to ask Orange County to allow it to hand out it literature to students so at least they will be exposed to a variety of religious opinions.  In particular it wants to hand out "The Satanic Children's Big Book of Activities" which, it says, gives students information on protecting themselves from corporal punishment at school. The Satanic Temple supports social justice causes and sees Satan as the "eternal rebel against the ultimate tyrant."

Monday, September 15, 2014

Settlement Reached In Presbyterian Church Property Dispute

Presbyterian News Service and The Christian Post reported last week that a settlement has been reached in a lawsuit (see prior posting) brought against Presbyterian Church USA by the Dallas, Highland Park Presbyterian Church. Highland Park, a megachurch, has voted to break away from PCUSA and affiliate with the more conservative Evangelical Covenant Order of Presbyterians.  The suit had been filed by Highland Park to determine ownership of church property. Under the settlement, Highland Park will pay $7.8 million (26% of its assets) to PCUSA to obtain a release of claims that the property belongs to PCUSA under it Book of Order trust clause and to obtain ecclesiastical dismissal.  The dollar amount was agreed on in court-facilitated mediation, and was based on the percentage of Highland Park members that have chosen to remain with PCUSA.

Complaint Filed With HHS Over California Requirement That Insurance Policies Cover Elective Abortions

Last week, seven employees of the religiously-affiliated Loyola Marymount University filed a complaint (full text) with the U.S. Department of Health and Human Services objecting to a decision by the California Department of Managed Health Care requiring all private health care plans in the state to cover elective abortions. The complaint contends that the state's decision depriving them of a plan that omits elective abortion coverage violates the Hyde-Weldon Conscience Protection Amendment (Sec. 507 of the 2014 Consolidated Appropriations Act). That provision prohibits states from discriminating against a health care entity because it does not provide abortion coverage. A press release announced the filing of the complaint by Life Legal Defense Foundation and Alliance Defending Freedom.

New EEOC Nominee Announced

Last week the White House announced that President Obama will nominate  Charlotte Burrows to fill a vacant position on the Equal Employment Opportunity Commission. Burrows is currently Associate Deputy Attorney General at the Department of Justice. Among her previous positions, she was staff counsel to the Senate Judiciary Committee.  The EEOC administers federal laws barring employment discrimination, including discrimination on the basis of religion.

Nigeria Bans Religious Gatherings To Stop Ebola Spread; Group Threatens Lawsuit

In Nigeria, Health Minister Onyebuchi Chukwu has banned religious gatherings as a way to prevent the spread of Ebola. However, according to a report from This Day Live yesterday, the Christian Professionals Association of Nigeria is threatening to sue over the ban if it is not lifted in 72 hours. The group says that while the government has banned Christian religious gatherings, the government has not stopped political rallies across the nation. It says that the religious ban violates freedom or worship, movement and assembly protected under Sections 38-41 of the 1999 Constitution Act (As Amended).

Recent Articles of Interest

From SSRN:

Sunday, September 14, 2014

New York and Peoria Dioceses In Battle Over Body Of Archbishop Fulton J. Sheen

A high-profile dispute between the Catholic Archdiocese of Peoria, Illinois and New York's Archbishop Cardinal Timothy Dolan over the body of Archbishop Fulton J. Sheen is the focus of a New York Times report today. Sheen was a popular television personality in the 1950's.  Since his death in 1979, his body has been sealed in a crypt in New York's St. Patrick's Cathedral.  The Peoria Diocese has been pushing for sainthood for Sheen, and has elaborate plans for a shrine to house his tomb, but Dolan refuses to allow the body to be exhumed.  This has led to a halt in the movement toward canonization.  According to the Times:
The very public tug-of-war over the body of Archbishop Sheen, has shocked many Catholics, in part because it seems like something that belongs in another era.
 “We should have moved out of the 14th century by now,” said Joan Sheen Cunningham of Yonkers, a niece of the archbishop and, at 87, his oldest living relative. “I would have thought so.” She wants the body to remain where it is.
The dispute is unlikely to ever reach the courts because of the refusal of civil courts to intervene in religious matters.

Jewish Vote In New York City Is Becoming Increasingly Orthodox and Hasidic

Th New York Times reports today that the profile of Jewish voters in New York City area is changing. Within a generation, a majority of New York City's Jews will likely be Orthodox, and a large percentage of those will be Hasidim who often have very large families.  The traditional liberal voting patterns of New York Jews is thus becoming more conservative.  Hasidim often vote in blocks for candidates favored for pragmatic reasons by their sect's grand rabbi. Hasidim often seek more aid for their system of yeshivas (religious schools). Already Hasidic groups have successfully resisted enforcement of the City's new informed consent requirement for circumcisions using the oral suction method, as well as requirements for various secular courses to be offered in their private schools. Top city and state officials are hiring Orthodox or Hasidic political advisers.

Recent Prisoner Free Exercise Cases

In Johnson v. Brown, (11th Cir., Sept. 12, 2014), the 11th Circuit reversed an Alabama federal district court's dismissal at the screening stage of a complaint that Sunnah Muslim inmates' access to a classroom used as a Masjid for prayer was being limited, their prayer services were being interrupted or cancelled, Eid al-Adha was mishandled and plaintiff was not allowed to wear a kufi.

In Miller v. Lewright, 2014 U.S. Dist. LEXIS 124584 (ED CA, Sept. 5, 2014), a California federal magistrate judge dismissed with leave to amend a complaint by a Native American civil detainee that authorities refused to release to him a spiritual bead necklace that he had ordered from a private vendor.

In Utt v. Brown, 2014 U.S. Dist. LEXIS 122602 (ED NC, Sept. 3, 2014), a North Carolina federal district court permitted a Wiccan inmate to proceed with his complaint about a policy that tarot cards are only for personal use, confiscation of his homemade religious items, a prohibition on his practicing sacred Esbats and denial of corporate worship.

In Vigil v. Raemisch, 2014 U.S. Dist. LEXIS 124986 (D CO, Sept. 8, 2014), a Colorado federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 124985, Aug. 15, 2014), and dismissed a Native American inmate's complaint that he was not allowed to wear a Mohawk haircut.

In Henderson v. Hedgpeth, 2014 U.S. Dist. LEXIS 125315 (ND CA, Sept. 8, 2014), a California federal district court dismissed with partial leave to amend a Muslim inmate's complaint that authorities failed to provide Muslim prayer services or a full-time chaplain, have not purchased various Muslim religious items (Qurans, prayer rugs, oils, books), have not allowed group breaking of the Ramadan fast or allowed ordering of Halal food.

In Desmond v. Phelps, 2014 U.S. Dist. LEXIS 126428 (D DE, Sept. 10, 2014), a Delaware federal district court allowed a Jewish inmate to join in a suit by Sunni-Salafi and Catholic inmates raising issues regarding the practice of religion at a Delaware prison. The court denied a preliminary injunction relating to retaliation claims by one of the Catholic plaintiffs.

In Elmore v. Saunders, 2014 U.S. Dist. LEXIS 126978 (MD NC,Sept. 11, 2014), a North Carolina federal district court denied the free exercise claim of an inmate who alleged that he could not pray during four days in a close observation cell because he was handcuffed and denied water to cleanse himself.

In Cejas v. Myers, 2014 U.S. Dist. LEXIS 127008 (ED CA, Sept. 10, 2014), a California federal magistrate judge dismissed, with partial leave to amend, a Buddhist inmate's complaint that Buddhists were denied chapel time while on C-status, and failed to fill a vacant chaplain position.

In Walters v. Livingston, 2014 U.S. Dist. LEXIS 127630 (WD TX, Sept. 12, 2014), a Texas federal magistrate judge dismissed on various grounds claims by a Native American inmate (who now has been released after completing his sentence) that he was wrongly transferred to a non-Native American unit after he was disciplined and not provided accommodations to practice his faith there. Defendants' counterclaim for attorneys' fees was also dismissed.

Saturday, September 13, 2014

"God" In Pledge and in Military Oath Challenged Anew By Humanist Group

Stars and Stripes reported earlier this week that the U.S. Air Force is seeking an opinion from the Defense Department's chief lawyer on whether an enlisted man who is an atheist can refuse to include the phrase "so help me God" in his re-enlistment oath. Among the armed services, only the Air Force has a policy that does not make inclusion of the phrase optional.  The American Humanist Association has threatened to sue on behalf of the airman, who is stationed at Creech Air Force Base in Nevada-- if the issue is not resolved next week.

Meanwhile last week the American Humanist Association launched a national campaign urging everyone to sit out the pledge of allegiance until the phrase "under God" is removed from it. The organization has created a website devoted to the campaign. The campaign yesterday released a letter it sent to New Town, North Dakota school officials complaining about a teacher's refusal to allow a first-grader to sit out the pledge.

Friday, September 12, 2014

3rd Circuit Upholds New Jersey's Ban On Reparative Therapy As Permissible Regulation of Professional Speech

Yesterday, the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges New Jersey's statute barring professional counselors from engaging in sexual orientation change therapy with minors. In King v. Governor of the State of New Jersey, (3rd Cir., Sept. 11, 2014), the court affirmed the district court's decision, while disagreeing with its 1st Amendment free expression analysis. Rejecting the district court's conclusion that talk therapy is not speech, the court instead concluded that it is "professional speech" which is subject to the same intermediate scrutiny as commercial speech.  Applying that test, the court found that the law directly advances New Jersey’s interest in protecting minors from harmful professional practices and is narrowly enough tailored to survive intermediate scrutiny.  The court rejected plaintiffs' free exercise challenge, finding that the law is neutral and generally applicable, and rejected plaintiffs' overbreadth challenge as well. Finally it agreed with the district court that plaintiffs lacked standing to bring suit on behalf of their minor clients. Bloomberg News reports on the decision. Liberty Counsel which represented plaintiffs announced that it would seek Supreme Court review.

University Tells Team To Remove Memorial Cross From Helmets

This season, the Arkansas State University football team decided to honor their recently murdered teammate and their former equipment manager who recently died in a car crash by wearing a Christian cross with the men's initials on it on their helmets. However, as reported yesteday by Fox News, University counsel told the team to remove the emblems after receiving a complaint that the team's wearing them violates the Establishment Clause. Counsel said that alternatively the players could change the Christian Cross to a "Plus sign" to eliminate the problem.

EEOC Sues Dunkin' Donuts Over Refusal To Hire Seventh Day Adventist

The EEOC yesterday filed a religious discrimination lawsuit against a Dunkin' Donuts franchise in Ashville, North Carolina. The company withdrew its offer to hire Darrell Littrell as a donut maker when he refused to begin work on Friday evening because of his Seventh Day Adventist feligious beliefs. The EEOC's announcement also indicated that the company was charged with failing to preserve required employment records.