3rd Circuit Hears Oral Arguments In Contraceptive Coverage Mandate Case

Yesterday the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Real Alternatives, Inc. v. Burwell. In the case, a Pennsylvania federal district court rejected a challenge by a non-profit, non-religious pro-life group to the scope of the Affordable Care Act contraceptive coverage mandate.  The non-profit argued, among other things, that it should be extended the same exemption from furnishing its employees contraceptive coverage as is given to religious employers. (See prior posting.)

EEOC Sues Over Hospital's Requirement For Clergy Certification To Grant Religious Accommodation

AP reports that the EEOC filed a religious discrimination lawsuit in a Pennsylvania federal district court last Thursday charging that Erie (PA)'s St. Vincent Hospital wrongfully fired six employees who refused for religious reasons to get flu shots.  At issue is the hospital's requirement that for employees to obtain religious exemptions from the requirement, they must present a certification from a member of the clergy.  The six employees who did not provide proof of their religious beliefs were adherents of  Russian Orthodox, Independent Fundamental Baptist, Christian mysticism, Methodist and nondenominational Christian faiths. [Thanks to Tom Rutledge for the lead.]

Salesperson Is Independent Contractor, So Title VII Does Not Apply

The Pittsburgh Tribune-Review reported yesterday that a Pennsylvania federal district court has dismissed a suit against a bathroom remodeling company brought by a woman who was fired from her sales position when she refused to continue to attend Bible-based sales training sessions.  A federal court jury Tuesday concluded that the plaintiff was an independent contractor rather than employee, so the religious discrimination provisions of Title VII and state law do not apply.

Court Refuses To Dismiss Abortion Buffer Zone Challenge, But Denies Preliminary Injunction

In Reilly v. City of Harrisburg, (MD PA, Aug. 31, 2016), a Pennsylvania federal district court refused to grant a preliminary injunction to bar enforcement of a Harrisburg, Pennsylvania ordinance that provides for a 20-foot buffer zone around health care facilities to protect women seeking to access to abortion clinics from picketers and sidewalk counselors.  The court however refused to dismiss some of plaintiffs' challenges to the law.  In particular the court allowed plaintiffs to move ahead with their claims that the ordinance is not narrowly tailored and that it is overbroad.  The court rejected several other challenges including free exercise, vagueness and prior restraint claims.

Suit Challenges Latin Cross In County Seal and Flag

A suit was filed in federal district court this week seeking to enjoin Lehigh County, Pennsylvania from continuing to display the current county seal and county flag that includes a Latin cross (partly hidden by a depiction of the county courthouse) as a prominent part of the design.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. County of Lehigh, (ED PA, filed 8/16/2016) contends that the cross amounts to an endorsement of Christianity, while the county Board of Commissioners says the cross was made part of the design to honor the original settlers of Lehigh County who were Christian. FFRF issued a press release announcing the filing of the lawsuit.

3rd Circuit: Some Plaintiffs Have Standing In Ten Commandments Challenge

In Freedom From Religion Foundation, Inc. v. New Kensington Arnold School District, (3d Cir., Aug. 9, 2016), the U.S. 3rd Circuit Court of Appeals issued a complicated opinion on standing in a suit in which a student, her mother and an advocacy organization are challenging a 6-foot tall Ten Commandments monument on the lawn of a Pennsylvania high school. The district court had dismissed, finding that all the plaintiffs lacked standing because they had not been injured by the presence of the monument. (See prior posting.) The 3rd Circuit reversed in part, looking separately at each of the plaintiffs as well as considering the claim for an injunction separately from the claim for nominal damages. The 3rd Circuit held that the mother had standing to sue for nominal damages because

[her] allegations that the monument “signals that [she is] an outsider because [she] do[es] not follow the particular religion or god that the monument endorses,” ... and that her “stomach turned” when she encountered it, ... are sufficient to demonstrate that her contact with the monument was unwelcome.

On the other hand, the daughter did not because when she encountered the monument she was too young to understand it. The court went on to hold that both the mother and daughter have standing to sue for injunctive relief, even though the mother had sent her daughter to a different school because of the monument.  Its removal could lead to the daughter's return.  Finally the court said that the advocacy group's standing depends on whether the mother was a member at the time the suit was filed.

Judge Smith filed a lengthy opinion "concurring dubitante," saying:

I am doubtful that a claim for nominal damages alone suffices to create standing to seek backward-looking relief. While this issue has little practical importance to this case, it does have broad consequences for our standing and mootness inquiries in other scenarios.

Pittsburgh Tribune-Review reports on the decision. [Thanks to several readers for the lead.]

Criticism of Religious Scholarship Is Not Religious Discrimination

Hascall v. Duquesne University of the Holy Spirit, (WD PA, June 28, 2016), is a suit by a Duquesne University Law School faculty member, Susan Hascall, who was denied tenure. A Pennsylvania federal district court refused to dismiss her charges of gender discrimination and retaliation. However it did, among others, dismiss her religious discrimination claim, holding that:

Plaintiff's attempts to rely on her scholarship of Islamic law as a sincerely held religious belief are misplaced.... Scholarship in Islamic and Sharia law does not, on its own, create a sincerely held religious belief. Plaintiff has pointed to no evidence that she herself practices Islam as a religion. Indeed, Plaintiff states in her Amended Complaint that she has not converted to Islam.... Without a sincerely held belief in Islam, Plaintiff cannot establish a claim for religious discrimination.... Plaintiff may very well have been subject to ridicule and derision from her colleagues due to the subject matter of her choice of scholarship; however, such conduct is not prohibited by law.

Legal Intelligencer reports on the decision.

Sewer Connection To Amish Must Be Made In Least Religiously Intrusive Means

In Yoder v. Sugar Grove Area Sewer Authority, (PA Commw., June 3, 2016), a Pennsylvania appellate court remanded to the trial court a suit by an Old Order Amish family seeking to avoid connecting their property to the public sewer system.  In an earlier decision, the trial court had concluded that the interest in protecting public health through a sewer connection outweighed the Amish family's free exercise rights, but required that the connection to the sewer system be made in accordance with the family's religious convictions. The current suit stems from disagreements on how to carry out this prior order and the trial court's improper belated modification of it. According to the court, the Amish family has religious objections to having electricity power anything associated with the use of their outhouse, and risk excommunication if they use a privy tainted with the use of electric power. In remanding and requiring the trial court to reconsider the method by which a sewer connection would be made to the family's property, the court said in part:

The trial court’s analysis regarding the threat to public safety pertained to the lack of any sewer connection at all, not a connection by nonelectric means, or, failing that, electricity generated by natural, non-electricity provider means. Importantly, the trial court also did not address Owners’ alleged clear right to the least intrusive means of a mandatory connection. 

3rd Circuit Hears Oral Arguments In Ten Commandments Case

The U.S. 3rd Circuit Court of Appeals heard oral arguments yesterday (audio of full arguments) in  Freedom From Religion Foundation, Inc. v. New Kensington-Arnold School District, a challenge to a Ten Commandments monument on the lawn of a Pennsylvania high school.  In the case, the federal district court held that plaintiffs lacked standing to challenge the monument because they had not been injured by its presence. (See prior posting.) The Pittsburgh Tribune-Review reports on the case.

"Philly Jesus" Says Trespassing Charge Reflects Religious Discrimination

Recovered drug addict Michael Grant who is well known as "Philly Jesus" in Center City Philadelphia is defending against defiant trespassing and disorderly conduct charges by claiming religious discrimination.  NJ.com reported on Monday's Municipal Court hearing. Grant was arrested for blocking a pathway inside a local Apple store with the cross he was carrying. At the time he was charging his phone. His attorney says he was evicted because of his religious beliefs. Referring to his white iPhone, Grant says: "I'm on the family plan. Father, son and Holy Ghost."

Christian Retreat Center Not Subject To Hotel Room Tax

In Susquehanna County Commissioners v. Montrose Bible Conference, (PA Commonwlth. Ct., April 21, 2016), a 3-judge appellate court panel upheld a lower court's ruling that a retreat center operated by a Christian religious organization is not subject to the county's hotel room rental tax.  While most of the decision focused on a procedural issue, in a footnote the court set out the substantive conclusion:

Even if the County had preserved its issue in a post-trial motion, the trial court properly concluded that MBC is not subject to the hotel tax because the County failed to establish that MBC is a “hotel.”... [S]ection 3 of the Ordinance defines a “hotel” as a structure that holds itself out “as being available to provide overnight lodging . . . for consideration to persons seeking temporary accommodations.” Here, MBC holds itself out as a religious facility and does not provide lodging to persons merely seeking overnight accommodations.

PennRecord reports on the decision.

Suit Challenges Pennsylvania City's Abortion Clinic Buffer Zone

Last week, three women who regularly act as pro-life "sidewalk counselors" outside two abortion clinics filed suit in a Pennsylvania federal district court challenging the constitutionality of Harrisburg's "Interference With Access To Health Care Facilities" Ordinance.  The ordinance bars congregating, patrolling, picketing or demonstrating within 20 feet of any health care facility entrance, exit or driveway.  The complaint (full text) in Reilly v. City of Harrisburg, (MD PA, filed 3/24/2016) contends that the ordinance violates freedom of expression, free exercise of religion, freedom of assembly, equal protection and due process rights. Liberty Counsel announced the filing of the lawsuit.

Pennsylvania Grand Jury Exposes Extensive Sex Abuse By Catholic Diocese Clergy

Yesterday Pennsylvania Attorney General Kathleen Kane released a 147-page Grand Jury report (full text) on sexual abuse of children by Pennsylvania Catholic clergy.  As summarized in the Attorney General's press release:

A statewide investigating grand jury has determined that hundreds of children were sexually abused over a period of at least 40 years by priests or religious leaders assigned to the Roman Catholic Diocese of Altoona-Johnstown, Pennsylvania....

The widespread abuse involved at least 50 priests or religious leaders. Evidence and testimony reviewed by the grand jury also revealed a troubling history of superiors within the Diocese taking action to conceal the child abuse as part of an effort to protect the institution's image.

The Grand Jury concluded its report with 3 recommendations: (1) abolish the statute of limitations for sexual offenses against minors; (2) open a window to allow child sexual abuse victims to have their civil actions heard; and (3) possible criminal conduct should be directly reported to law enforcement authorities. Washington Post has more on the grand jury report.

Alien Tort Suit Focuses On Sectarian Rivalry In Turkey

A suit seeking damages under the Alien Tort Statute was filed in a Pennsylvania federal district court this week against Muhammed Fethullah Gülen, a Turkish cleric who has lived in the United States since 1998. The complaint (full text) in Ates v. Gulen, (MD PA, filed 12/7/2015) was nominally brought by three individuals who are members of the Sunni Muslim Dogan Movement, an Anatolian offshoot of the rival Nur Movement.  However according to BuzzFeed News, the Turkish government is behind the lawsuit because Gulen is now an archrival of President Recep Tayyip Erdogan.

According to the complaint:

Over the course of the past two decades, Mr. Gülen has implemented a political strategy of encouraging his followers to secure official positions within the official Turkish state apparatus – notably in police, prosecutorial and judicial positions – through whom he is able to exercise a corrupt influence in Turkish society....

Defendant intentionally ordered the coordinated, systematic attack on members of the Doğan Movement because of that group’s religious beliefs and public criticism of Defendant. Defendant ordered his co-conspirators in Turkey to use their high level positions in Turkish law enforcement to identify members of the Doğan Movement, plant evidence, and target them for arrest and incarceration.

 The complaint also alleges:

Mr. Gülen has an international following estimated to approach 10 million people. He has developed a vast network of businesses and non-governmental organizations that supply him with financial support, and he is estimated to control at least $25 billion in assets. In the United States, Mr. Gülen controls dozens of business entities and more than 120 charter schools in various states, many of which are or have been under investigation by state and federal criminal and regulatory authorities.

Christian Camp Gets Preliminary Injunction Allowing It To Use Its Buses For Released Time Program

According to Public Opinion News, a Pennsylvania federal district court on Wednesday issued a preliminary injunction permitting Joy El Ministries to go back to using its own buses for its public school Released Time Bible Program while its lawsuit challenging state regulatory contentions is pending. The lawsuit, originally filed in state court, was removed to federal court by the state because it raises federal Establishment Clause issues. (Herald Mail Media).  As previously reported, Pennsylvania State Police cited the Greencastle, Pennsylvania Christian camp for transporting students to and from school for its a once-a-week "released time" program in buses that do not  meet the standards for vehicles owned by the school district or under contract with it.  Among other things, the buses used by Camp Joy El do not have swinging stop signs attached to the side, are not marked as school buses and are not painted with the specifically required yellow paint. The camp claims its buses are not school buses and its program is not an extracurricular activity, so that it is not covered by the regulations.  The camp has been renting other buses since state police cited it for violations.

Church Gets Preliminary Injunction Under RLUIPA For Zoning Exclusion

In Hope Rising Community Church v. Municipality of Penn Hills, 2015 U.S. Dist. LEXIS 160148 (WD PA, Nov. 30, 2015), a Pennsylvania federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 160852, Oct. 28, 2015) and granted a preliminary injunction to a church that was ordered to stop holding worship services in a warehouse building it leased in an area zoned only for "Light Industrial" uses.  The city also denied a zoning variance.  The court concluded that the city's zoning law violates RLUIPA's "equal terms" provision by not allowing churches as a permitted use in areas zoned "Light Industrial," given the other types of uses that are allowed. The court concluded that:

the City has failed to show how a religious institution would cause greater harm to the Light Industrial District and its objectives than parks, playgrounds and educational institutions [which are permitted].

Suit Questions Whether Released Time Church Buses Must Meet School Bus Standards

Public Opinion News reported yesterday on a suit filed in a Franklin County, Pennsylvania trial court challenging the contention by Pennsylvania State Police that yellow buses used by a Christian camp to transport students to and from school for a once-a-week "released time" program must meet the standards for vehicles owned or under contract with a school district.  Among other things, the buses used by Camp Joy El do not have swinging stop signs attached to the side, are not marked as school buses and are not painted with the specifically required yellow paint. A state trooper stopped one of the buses for inspection in a church parking lot, cited it for 9 violations and refused to allow students to board the bus to return to school. The suit asks for a preliminary injunction and a declaratory judgment permitting the Joy El to resume using its buses. Since the citation,it has been renting other buses at a cost of over $5000 per week.

Pennsylvania Court Retroactively Validates Same-Sex Marriage After Death of One Spouse

In what is apparently the first case of its kind, on Wednesday a Bucks County, Pennsylvania trial court retroactively validated a same-sex common law marriage.  As reported by the Doylestown Intelligencer, the decision allows the widowed Dr. Sabrina Maurer to recover spousal survivor benefits under two separate insurance policies, and allows her an inheritance tax refund.  Maurer and Dr. Kimberly Underwood were married in a 2001 Episcopal religious ceremony, even though same-sex marriages were not then recognized in Pennsylvania.  However common law marriages were recognized if they took place before 2005. Underwood died in 2013.  Same-sex marriages became legal in Pennsylvania in 2014.

Ten Commandments Challenge Dismissed On Standing Grounds

In Freedom From Religion Foundation, Inc. v. New Kensington-Arnold School District, (WD PA, July 27, 2015), a Pennsylvania federal district court dismissed a challenge to a 6-foot tall Ten Commandments monument on the lawn of a Pennsylvania high school, finding that plaintiffs lacked standing because they have not been injured by the presence of the monument.  They had only a few contacts with it, and there is no evidence that in the future they will be required to visit the high school as part of their ordinary routines. TribLive reports on the decision.  Freedom From Religion Foundation in its press release on the case points out that a companion challenge to a similar monument in Pennsylvania's Connellsville Area School District is still ongoing.

Legalization of Same-Sex Marriage Complicates Prior Estate Planning Devices

A New York Times article six years ago reported on the use of adult adoption as an estate planning tool for same-sex couples who were prohibited by law from marrying.  The technique allows a same-sex partner to share as a beneficiary in a family trust to which the person would not be entitled if not a family member. Last week the Doylestown-Buckingham-New Britain Patch reported on how this kind of arrangement has fared as same-sex marriage becomes legal in many states. Bill Novak and Norman MacArthur are a same-sex couple who have been together for more than 50 years and were registered as domestic partners in New York City. When they moved to Pennsylvania, their lawyer advised them to use the adoption strategy for estate planning purposes.  So in 2000, Novak adopted MacArthur.  But now that same-sex marriage is permitted in Pennsylvania, the two would like to marry.  However this required vacating the adoption decree.  In a precedent-setting decision on May 14, the Orphans Court of Bucks County  granted their Petition to Vacate, and the couple applied for and received a marriage license the same day.  They expect to actually marry soon.