New Jersey Limit On Activities of Religious Cemeteries Is Upheld

In Roman Catholic Archdiocese of Newark v. Christie, (D NJ, Feb. 23, 2018), a New Jersey federal district court rejected due process and equal protection challenges to a 2015 New Jersey law that prohibits private religious cemeteries from selling headstones, vaults and monuments.  The law was enacted to extend to religious ceremonies the separation of industries law that previously applied only to non-religious cemeteries.  AP reports on the decision.

Suit Challenges Ban On Lesbian Foster Parents In Federally Funded Refugee Program

A lawsuit was filed yesterday against the federal government and the U.S. Conference of Catholic Bishops challenging discrimination against same-sex couples in administration of the Unaccompanied Refugee Minor Program and the Unaccompanied Alien Children Program. The complaint (full text) in Marouf v. Azar, (D DC, filed 2/20/2018), alleges that various federal agencies use taxpayer funds to finance grants to the USCCB to implement these programs based on impermissible religious criteria.  Plaintiffs, a lesbian couple, were told by Catholic Charities of Fort Worth, a sub-grantee of USCCB, that they did not qualify to become foster parents of an unaccompanied refugee child. An official of the organization told them that foster parents must "mirror the holy family."  The complaint alleges in part:

By working to ensure that none of the children for which they are responsible are placed in homes of same-sex spouses based on USCCB’s religious beliefs, USCCB and its sub-grantees not only discriminate against same-sex spouses, but also effectively erase the non-Catholic identities and beliefs of many of the unaccompanied refugee children for which they are responsible. This conduct potentially increases those children’s alienation and vulnerability, while denying them access to loving homes that could serve them best—all at federal taxpayers’ expense.

Lambda Legal issued a press release announcing the filing of the lawsuit. Washington Post reports on the filing of the suit.

NY Governor Issues Executive Order Barring State Contracts With Entities That Fail To Address Discrimination

Earlier this month (Feb. 3), New York Governor Andrew Cuomo issued an Executive Order (full text)  directing all state agencies and departments to amend their procurement procedures to prevent entering into contracts "with entities that have institutional policies or practices that fail to address the harassment and discrimination of individuals on the basis of their age, race, creed, color, national origin, sexual orientation, gender identity, military status, sex, marital status, disability, or other protected basis."  State departments and agencies must include non-discrimination provisions in all contracts for goods, services, technology or construction.  In a press release announcing the Executive Order, the governor's office said in part:

The Trump administration has banned transgender people from serving in the U.S. Military, removed guidance nationwide that helped protect young transgender students at school, and completely removed the LGBTQ community from the National Survey of Older Americans. Additionally, in October 2017, the federal government rescinded a contraceptive coverage mandate under the Affordable Car Act. This action has permitted employers and organizations to claim broad exemptions from nondiscrimination laws, which has increased the vulnerability of LGBTQ rights.

Following these actions, which perpetuate and tolerate discrimination and taken this nation in the wrong direction, New York is once again stepping up to ensure the rights of individuals across the state are protected.

The Director of Public Policy of the Archdiocese of New York strongly criticized the new Executive Order, saying in part:

the target of this new action is the very existence of religious agencies, and the intent is to suppress any deviation from the new orthodoxy of gender and sexual ideology.

LifeSite News reports further on these developments.

Notre Dame Announces Another Change In Contraceptive Coverage

Notre Dame University on Wednesday announced another change in its policy regarding coverage for contraceptives by its employee health care plan.  Initially Notre Dame sued challenging the Obama administration's rule which required coverage, but allowed the coverage to be provided by the insurance company or third party administrator directly rather than by the University.  When the Trump administration broadened the exemption for religious non-profits so that Notre Dame could completely opt out of contraceptive coverage, the University chose to continue with the pre-existing coverage arrangement. This led to criticism from alumni and others. (See prior posting.)  Now in a letter to faculty and staff (full text), the University has announced a different approach-- one which makes a distinction between Catholic teaching regarding contraception and Church teaching regarding abortion (presumably including contraceptive drugs that prevent implantation of a fertilized ovum).  The letter from Notre Dame's president describes the policy as follows in part:

... [A]llowing the government-funded provision of drugs and services to continue through a third party administrator would provide access to contraceptives without University funding or immediate involvement. The government-funded program, however, includes the provision of abortion-inducing drugs, which are far more gravely objectionable in Catholic teaching. Stopping any access to contraceptives through our health care plan would allow the University to be free of involvement with drugs that are morally objectionable in Catholic teaching, but it would burden those who have made conscientious decisions about the use of such drugs and rely on the University for health care benefits.

I have reached the conclusion that it is best that the University stop the government-funded provision of the range of drugs and services through our third party administrator. Instead, the University will provide coverage in the University’s own insurance plans for simple contraceptives (i.e., drugs designed to prevent conception). The University will also provide in its plans funding for natural family planning options—options that do not use artificial contraceptives but employ natural methods for preventing conception. The University’s insurance plans (as opposed to the government-funded program) have never covered, and will not cover, abortion-inducing drugs.

In response to the new policy, Bishop Rhoades, Bishop of the Diocese of Fort Wayne-South Bend where Notre Dame is located, issued a statement yesterday (full text) welcoming parts of the new policy but strongly criticizing the University's decision to directly fund contraception coverage. [Thanks to Marty Lederman via Religionlaw for the lead.] 

New Hearing Ordered On Moving Bishop Fulton J. Sheen's Remains

In a 3-2 decision in Matter of Cunningham v Trustees of St. Patrick's Cathedral, (NY App., Feb. 6, 2018), New York state's Appellate Division sent back to the trial court for further proceedings the dispute over whether the body of Archbishop Fulton J. Sheen, who died in 1979, should be moved from New York City to Illinois.  Sheen was buried in St. Patrick's Cathedral. However Sheen's niece has now petitioned the court to have Sheen's remains moved to Peoria, Illinois where Sheen's family resides and where a shrine to him is being built in anticipation of Sheen's Beatification by The Vatican. (See prior posting.)  The trial court concluded (full text of opinion) that no factual disputes existed, and granted the request to allow removal of Sheen's remains. However, on appeal the majority held that the trial court must hold a hearing to determine Sheen's wishes as to his place of burial, in light of conflicting evidence on the issue. New York Times reports on the decision.

Nuns Argue RFRA Claim As To Pipeline Before 3rd Circuit

On Friday the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Adorers of the Blood of  Christ v. FERC.  In the case, a Pennsylvania federal district court dismissed for lack of jurisdiction a RFRA challenge by a Catholic order of nuns to the construction and operation of the Atlantic Sunrise gas pipeline through land owned by the order. (See prior posting.)  At issue is whether the nuns should have used procedures set out in the Natural Gas Act to raise their objections. NPR reports on the oral arguments.

Report Says Women of Color Disproportionately Give Birth In Catholic Hospitals In 19 States

The Columbia Law School Public Rights/ Private Conscience Project yesterday released a new report Bearing Faith: The Limits of Catholic Health Care for Women of Color. The study focuses on racial disparities of women giving birth in Catholic hospitals governed by Ethical and Religious Directives for Catholic Health Care Services.  According to the report:

The ERDs forbid hospitals owned by or affiliated with the Catholic Church ... from providing many forms of reproductive health care, including contraception, sterilization, many infertility treatments, and abortion, even when a patient’s life or health is jeopardized by a pregnancy. Catholic hospitals represent a large and growing part of the U.S. health care system. One in six hospital beds in the country is in a hospital governed by the ERDs....

This study finds that in nineteen out of the thirty-four states/territories that we studied, women of color are more likely than white women to give birth at hospitals bound by the ERDs.

The study found that in 12 states and one territory, Catholic hospitals disproportionately served white women, two states showed little disparity, and seven states had no Catholic birth hospitals.

Fight Over Religious Artifacts Becomes Part of the Catalonian Independence Battle

An unanticipated development flowing from Spain's takeover of the Catalonian government is Spain's move to retrieve 44 religious artifacts housed in Catalonia’s Museum of Lleida. The Spanish government claims that nuns of a convent in Sijena illegally sold the rare artifacts to the Museum after the order moved to Barcelona. The Telegraph yesterday reported:

In 2015, after years of contradictory rulings and appeals, an Aragonese court found that the sales were illicit, and ordered the treasures returned. But Catalonia refused to comply, lodging an appeal which has yet to be ruled upon.

When that Catalan government was removed in November under Article 155 - which imposed direct rule in response to the illegal independence referendum - the Aragonese judge saw his chance, demanding that the return be approved by Spain's culture ministry.

The minister, Íñigo Méndez de Vigo, defended the sign-off, insisting it was not "adding to the fire" to comply with a court order.

It is expected that Spanish police will try to retrieve the artifacts today.

DC Archdiocese Sues Over Rejection of Christmas Season Bus Ads

The Washington, D.C. Catholic Archdiocese yesterday filed suit in federal district court against the Washington Metropolitan Area Transit Authority after WMATA rejected ads designed to be placed on the exterior of buses promoting the Archdiocese's "Find the Perfect Gift" Campaign.  The complaint (full text) in Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (D DC, filed 11/28/2017), describes the ads:

the advertisements depict, in minimalist style, a starry night, with silhouettes of a small group of shepherds and sheep standing on a hill. All of the advertisements refer to an Internet site, FindThePerfectGift.org, which contains links to Mass schedules, opportunities for charitable service, information about religious holiday traditions, and reflections on the meaning of the Advent and Christmas seasons. The advertisements also refer to a social-media hashtag, #PerfectGift.

The WMATA advertising Guidelines prohibit ads that "promote or oppose any religion, religious practice, or belief."  The complaint alleges that the Guidelines as applied to this ad violate the Archdiocese's 1st amendment free speech and free exercise rights, RFRA, as well as denying it equal protection and due process.  The Archdiocese issued a press release announcing the filing of the lawsuit.

Catholic Bishops Oppose Parts of Senate's Tax Reform Draft

Earlier this week, the chairman of the U.S. Conference of Catholic Bishops' Committee on Domestic Justice and Human Development issued a letter (full text) (press release)  criticizing the current version of the Senate's Tax Cuts and Jobs Act.  The letter calls for the Senate to amend its draft "to better ensure a just and moral framework for all."  While supporting some aspects of the bill, the Bishops expressed concern over a number of the provisions, analyzing them in light of six moral principles the Bishops had set fort in a statement on tax reform last October. Many of the criticisms focus on "care for the poor and concern for families."  Among the specific concerns expressed were opposition to repeal of the Affordable Care Act mandate without more comprehensive health care reform; concern that families with more than three children will find themselves in a worse tax situation that at present; concern that stricter rules regarding children’s social security numbers for the Child Tax Credit will make it difficult for immigrants to receive the benefit; and inadequate tax incentives for charitable giving.

Public Shelter's "Blessing of the Animals" Challenged In Court

An Atheist group last week filed suit in a New Jersey federal district court challenging a county-run animal shelter's hosting for the second year in a row of a Blessing of the Animals event.  The complaint (full text) in American Atheists, Inc. v. Bergen County, (D NJ, filed 11/13/2017), objects to the use of public resources and employee time to promote and host a ritual that is performed by Franciscan clergy annually in honor of St. Francis of Assissi. Plaintiffs claim that the county has violated the Establishment Clause, the Equal Protection Clause and several provisions of the New Jersey Constitution.  American Atheists issued a press release announcing the filing of the lawsuit.

Barrett Confirmed For 7th Circuit After Controversy Over Her Religious Beliefs

The Hill reports that the U.S. Senate yesterday confirmed the nomination of Notre Dame Law Professor Amy Coney Barrett for a seat on the U.S. 7th Circuit Court of Appeals.  Three Democrats joined Republicans to approve the nomination by a vote of 55-43.  Barrett's nomination had become controversial because of her views on reproductive rights, abortion, LGBTQ rights, as well as her statement in a 1988 law review article urging Catholic judges to recuse themselves in capital cases because of Catholic teaching opposing capital punishment. (See prior posting.) After the Senate's confirmation vote, a spokesperson for The Catholic Association said:

Amy Coney Barrett's qualifications for the federal judiciary are undisputed, but abortion industry advocates continue their smear campaign by attacking Barrett's Catholic faith.  The full Senate rejected their attempt to hang a ‘Catholics need not apply’ sign outside the Senate chamber when it considers candidates to the judiciary.

Couple Sues Over Catholic Charities Refusal To Allow Adoption

AP reports that a North Dakota couple is suing Catholic Charities for $6.5 million because the organization refused to allow them to adopt a 15-year old girl who was in foster care.  The refusal was based on the fact that the adopting couple, in violation of Catholic religious teachings, were living together and were not yet married.  Their planned wedding was 5 months away and they had hoped the 15-year old would be a bridesmaid.

Santa Fe Diocese Releases List of Priests Found Guilty of Sex Abuse

On Tuesday, the Catholic Archdiocese of Santa Fe released the names of 74 priests, deacons and brothers who have been found guilty of sexually abusing a child, either by the Church (canon law), the State (criminal law), or both. The list also includes those who were laicized after being accused of sexually abusing a minor, and those publicly accused where criminal proceedings were not completed (often because of death).  AP, reporting on the release, says that it comes after decades of pressure from victims and their families.

Religious Order Loses Attempt to Stop Pipeline

In Transcontinental Gas Pipeline Co., LLC v. Permanent Easement for 2.14 Acres, (ED PA, Aug. 23, 2017), a Pennsylvania federal district court held that Transcontinental Pipeline Co. has the right to condemn and take immediate possession of property of the Adorers of Christ religious order so that the company can build its Atlantic Sunrise Pipeline.  The court said in part:

Adorers claim that they "exercise their religious beliefs by, among other things, caring for and protecting the land they own," and that their efforts to "preserve the sacredness of God's Earth" are integral to the practice of their faith.  However, the Adorers have failed to establish how Transco's possession of the right of way on their land will in any way affect their ability to practice their faith and spread their message. They have not presented one piece of evidence that demonstrates how their religious beliefs will be abridged in any way.

Tolling Provision Applies While Priest Is Outside State On Orders of Church Superiors

In Commonwealth v. McCormick, 2017 Mass. App. Unpub. LEXIS 791 (MA App., Aug. 15, 2017), a Massachusetts state appeals court upheld the convictions of a Catholic priest on five counts of rape of a child.  The court rejected defendant's argument that the statute of limitations tolling provision violates the federal Establishment Clause and his free exercise rights under the Massachusetts Declaration of Rights. The state statute of limitations excludes from the computation of time under the limitations period any time during which the defendant is not "usually and publicly a resident" of Massachusetts.  Plaintiff was outside the state during periods in which he was working at a camp on the orders of his superiors in the Catholic church.

Australian Catholic Bishops React To Planned Plebiscite On Same-Sex Marriage

As reported earlier this month by CBC News, Australia's government is planning a mail survey beginning Sept. 12 of Australians on the issue of same-sex marriage. However it is facing a court challenge arguing that the government does not have authority to conduct this type of plebiscite without obtaining authority from Parliament.  Meanwhile the Sydney Morning Herald reported yesterday that Catholic bishops in Australia have threatened that if same-sex marriage is legalized, parish employees, including teachers in Catholic schools, who marry a same-sex partner may well be fired.

Catholic Order Sues To Force Rerouting of Pipeline

A religious Order of Catholic women last week filed suit in a Pennsylvania federal district court contending that a decision of the Federal Energy Regulatory Commission violates the Religious Freedom Restoration Act. The complaint (full text) in Adorers of the Blood of Christ v. Federal Energy Regulator Commission, (ED PA, filed 7/14/2017), contends that FERC's approval of the Atlantic Sunrise Pipeline route running through the religious Order's property, and giving Transcontinental Pipeline Company the power to take the land by eminent domain, substantially burdens the Order's religious belief that it must protect and preserve the land it owns. The suit contends that because FERC could approve an alternative route that goes around the property owned by the Catholic Order, it has not used the least restrictive means to achieve its goal. Adorers announced the lawsuit in a blog post.

Vatican-Approved Article Criticizes Conservative Catholic Support of U.S. Evangelical Political Agenda

The Washington Post today reports that an article in the influential Jesuit magazine La Civilta Cattolica-- whose content is approved by the Vatican Secretariat of State-- is critical of conservative Catholic support for the evangelical political agenda in the United States. The article is authored by the journal's editor and by a Presbyterian pastor who edits of the Argentine edition of the Vatican newspaper, L’Osservatore Romano.  The article (full text in Italian) whose title translates to Evangelical Fundamentalism and Catholic Integralism: A Surprising Ecumenism, is summarize by the Post:

The Rev. Antonio Spadaro, editor of the influential Jesuit journal La Civilta Cattolica, said a shared desire for political influence between “evangelical fundamentalists” and some Catholics has inspired an “ecumenism of conflict” that demonizes opponents and promotes a “theocratic type of state.”

Spadaro also took aim at conservative religious support for President Donald Trump, accusing activists of promoting a “xenophobic and Islamophobic vision that wants walls and purifying deportations.”...

Spadaro specifically criticized the far-right Catholic American media organization ChurchMilitant.com. Spadaro said the media outlet framed the presidential election as a “spiritual war” and Trump’s ascent to the presidency as “a divine election.”

Spadaro’s critique also appears aimed in part at America’s Catholic bishops, who have fought for religious exemptions from gay marriage laws and other measures church leaders consider immoral, and have often characterized those with opposing views as wishing to persecute Christians.

Priest's Defamation Suit Against Diocese Survives Ecclesiastical Abstention Claim

According to the Palm Beach Post, in a July 11 four-page opinion a Florida state trial court judge refused to dismiss a defamation suit brought by Catholic priest Rev. John Gallagher against his former diocese.  In response to Gallagher's claim that the diocese attempted to cover up sexual abuse by a visiting priest, the diocese posted responses on its website and in a letter read at all masses in the diocese.  The diocese (which contends that it reported the abuse to law enforcement authorities immediately) called Gallagher a liar who needed professional assistance.  The court held that the defamation claim "can be assessed using neutral principles of law and without resolving a church controversy."  It is expected that the diocese will appeal, arguing that the dispute involves church discipline and internal policies for handling complaints. (See prior related posting.)