Proposed RFRA Amendment Would Bar Its Use To Discriminate or Injure 3rd Parties

Yesterday two members of the U.S. House of Representatives, Joe Kennedy III and Bobby Scott, announced the introduction of the Do No Harm Act (full text). The bill would amend the Religious Freedom Restoration Act to preclude its use in ways that result in discrimination or harm to third parties or impose one person's religious views on another. More specifically, the bill would preclude using RFRA to create religious exemptions from various civil rights laws or labor laws, or accommodations which limit access to health care, or receipt of goods or services from the government or from government contractors or grantees.

Armed Forces Court of Appeals Hears Oral Arguments On Court Martial For Refusing To Remove Religious Signs

Yesterday the U.S. Court of Appeals for the Armed Forces heard oral arguments in United States v. Sterling. In the case, the U.S. Navy-Marine Corps Court of Criminal Appeals upheld a court martial conviction of a marine corps member for disobeying a lawful order to remove signs containing Biblical verses that she had taped up around her desk.  (See prior posting.)  Stars and Stripes summarizes some of yesterday's argument:

Keller [representing the government] argued the Sterling was not punished for putting up religious signs, but rather for defying orders....

He also argued because Sterling never sought a religious accommodation and only raised the religious protections issue later, there was no argument that her religious freedoms were “substantially burdened” under the Religious Freedom Restoration Act.

Clement [representing Lance Cpl. Monifa Sterling] rebutted that because she invoked religious freedom later doesn’t mean that it’s not a fair consideration.

Georgia Governor Will Veto Religious Liberty Bill

Georgia Governor Nathan Deal announced this morning that he will veto HB 757, the expansive Free Exercise Protection Act passed earlier this month by the state legislature. (See prior posting.)  As reported by CNN, the Republican governor has been under pressure from major business, technology and entertainment companies to veto the bill which was seen as condoning discrimination against members of the LGBT community.  In his veto message (full text), Gov. Deal said in part:

If indeed our religious liberty is conferred by God and not by man-made government, we should need the “hands off” admonition of the First Amendment to our Constitution. When legislative bodies attempt to do otherwise, the inclusions and omissions in their statues can lead to discrimination, even though it may be unintentional. That is too great a risk to take.

Some of those in the religious community who support this bill have resorted to insults that question my moral convictions and my character. Some within the business community who oppose this bill have resorted to threats of withdrawing jobs from our state. I do not respond well to insults or threats. The people of Georgia deserve a leader who will made sound judgments based on solid reasons that are not inflamed by emotion....

As I've said before, I do not think we have to discriminate against anyone to protect the faith based community in Georgia of which my family and I are a part of for all of our lives.

Georgia Legislature Passes Wide-Ranging Religious Freedom Bill

As reported by CNN, the Georgia General Assembly yesterday passed HB 757 (full text), the Free Exercise Protection Act. It contains wide-ranging religious freedom protections:

1. The bill protects clergy from any civil suit or tax penalty for performing or refusing to perform any marriage or other religious rite. It also provides that any individual is free to attend or not attend any marriage ceremony or other religious rite.
   
   
2. The bill prohibits local governments from requiring any business to operate on Saturday or Sunday.
   
   
3. The bill provides that churches and religiously affiliated organizations are not required to rent space to another person for an event that is objectionable to the religious organization. Also such organizations are not required to provide social, educational or charitable services that violate the organization's sincerely held religious beliefs.
   
   
4. The bill provides that no faith-based organization is required to hire or retain as an employee any person whose religious beliefs or practices (or lack of either) are not in accord with the organization's sincerely held religious belief.
   
   
5. The bill enacts RFRA language. The government may not substantially burden a person's religious exercise, except in furtherance of a compelling governmental interest that is furthered by the least restrictive means.  This provision, however is limited by several exceptions, including a provision that the RFRA language shall not be construed to "permit invidious discrimination on any grounds prohibited by federal or state law." It should be noted that discrimination on the basis of sexual orientation or gender identity are not prohibited by Georgia law, or by federal law as traditionally interpreted.
   
   
6. The bill waives sovereign immunity for suits seeking injunctive or declaratory relief or reasonable attorney's fees in various suits against the state under the statute.

Gov. Nathan Deal has said that he will veto any bill that allows discrimination in order to protect people of faith. (See prior posting.)  It is unclear whether the non-discrimination language included in HB 757 is sufficient to overcome the governor's objections.

Court Enjoins Army From Requiring Special Testing of Sikh Officer

In Singh v. Carter, (D DC, March 3, 2016), the D.C. federal district court, invoking RFRA, granted a preliminary injunction protecting religious rights of an Army officer.  The Army had ordered a decorated Sikh Army captain to undergo costly specialized testing with his helmet and protective mask to assure that his religiously required head covering, beard and uncut hair will not interfere with the functions of the helmet and mask. The court said:

At first blush, the challenged order appears to reflect a reasonably thorough and even benevolent decision by the Army to fulfill its duty of protecting the health and safety of this particular Sikh officer.

Yet, that is far from the complete picture. Thousands of other soldiers are permitted to wear long hair and beards for medical or other reasons, without being subjected to such specialized and costly expert testing of their helmets and gas masks. Moreover, other Sikh soldiers have been permitted to maintain their articles of faith without such specialized testing.

See prior related posting.

Georgia's Republican Governor Opposes "Religious Freedom" Bill on Biblical Grounds

As a number of state legislatures consider enacting religious freedom bills to protect opponents of same-sex marriage, one of the most contentious of the bills has been Georgia's HB 757 which among other things would bar government from taking any adverse action against any person or faith-based organization based wholly or in part on the person or organization believing, speaking or acting in accordance with their belief that marriage should be between a man and a woman and sexual relations should be reserved to such a union.  The Atlanta Journal Constitution reported yesterday that Georgia's Republican Governor Nathan Deal took a surprisingly strong stand against the legislation:

Amid a growing outcry from powerful corporations over Georgia’s “religious liberty” proposal, Gov. Nathan Deal issued his strongest warning yet to lawmakers who are debating controversial legislation seen as a conservative answer to the Supreme Court’s same-sex marriage ruling.

In stark terms, the Republican said he would reject any measure that “allows discrimination in our state in order to protect people of faith,” and urged religious conservatives not to feel threatened by the ruling....

Standing in the lobby of a government building after a ribbon-cutting ceremony, he laid out a lengthy condemnation of the measure from a biblical perspective, first noting that he is a Southern Baptist who took religion courses at Mercer University.

“What the New Testament teaches us is that Jesus reached out to those who were considered the outcasts, the ones that did not conform to the religious societies’ view of the world … We do not have a belief in my way of looking at religion that says we have to discriminate against anybody. If you were to apply those standards to the teaching of Jesus, I don’t think they fit.”

Sikh Army Captain Sues Seeking Religious Accommodation

U.S. Army Captain Simratpal Singh, a Sikh, filed suit yesterday in federal district court in the District of Columbia seeking an injunction to require the Army to allow him to continue to serve without requiring him to shave, cut his hair or remove his turban.  According to the complaint (full text) and memorandum in support of application for a TRO and preliminary injunction (full text), Singh was granted a temporary accommodation last December (see prior posting), but as its March 31 expiration approached Singh was ordered to report for special helmet testing and several days of safety-mask testing. No one else in the army has been subjected to this kind of testing.  According to the complaint, "the Army’s discriminatory testing and regulations expose Captain Singh to serious consequences of military discipline and the loss of his career for his religious exercise." The complaint alleges violations of RFRA as well as of the 1st and 5th Amendments.  Becket Fund issued a press release announcing the filing of the lawsuit.

RFRA Excuses Amish Defendant From Being Photographed During Pre-Release Processing

In United States v. Girod, (ED KY, Dec. 30, 2015), a Kentucky federal magistrate judge, accepting a federal RFRA claim, allowed an Amish criminal defendant to be processed for pre-trial release without his being required to pose for identification photographs by the U.S. Marshals Service.  Samuel Girod, charged with selling misbranded drugs in violation of federal law and with obstruction of justice, objected on religious grounds to knowing participation in photography.  Relying on Supreme Court precedent, the district court said in part:

[RFRA] requires that the Court not evaluate the general legitimacy of a stated governmental interest; rather, the Court must judge whether, as to Samuel Girod, the United States has proven a compelling interest servable only by the manner of USMS photography sought.

The court concluded that neither the interest in identifying a defendant if he were to flee nor the interest in pre-rial supervision were compelling as to this particular defendant because of his history of appearing when summoned and his ties to the community.  It added:

If this case centered on rational basis review, the Court likely would require that Girod submit to the Marshals’ processing like everyone else encountering a neutral, generally applied law or policy. Congress elected to revivify a more searching inquiry when a conflict exists between authentic religious exercise and governmental act. To prevent an exemption, the United States must prove, as to the potentially exempt objector, a compelling interest furtherable only by the offending means. The Government has failed in that burden in this particular case, at this particular stage...

Former Atheist Employee Can Move Ahead With Title VII Suit Against Christian Business

Mathis v. Christian Heating & Air Conditioning, Inc., (ED PA, Jan. 25, 2016) is a discrimination lawsuit brought under Title VII of the 1964 Civil Rights and and under the Pennsylvania Human Relations Act by an installation mechanic who was fired  or constructively discharged for covering the back of his identification badge with tape to hide his employer company's religious mission statement.  The company's owner is a born-again Christian, while plaintiff is an atheist.  The statement which plaintiff taped over read:

This company is not only a business, it is a ministry. It is set on standards that are higher than man’s own. Our goal is to run this company in a way most pleasing to the Lord.

Treating employees and customers as we would want to be treated along with running a business as if we are all part of one big family is our plan.

The court rejected defendant's RFRA defense, holding that RFRA applies only to suits in which the government is a party.  The court went on to hold that plaintiff had established a prima facie case of failure to accommodate his atheistic beliefs, saying:

Under Title VII, atheists are entitled to the exact same protection as members of other religions.... A reasonable trier of fact could infer from this evidence that Peppelman terminated plaintiff’s employment “with the motive of avoiding accommodation,” in violation of Title VII.

The court also held that plaintiff can move ahead with his retaliation claim.

Newdow Sues Again To Get "In God We Trust" Off Money-- This Time Using RFRA

Activist Michael Newdow is trying once again to get the motto "In God We Trust" removed from the nation's coins and currency.  Representing some 41 plaintiffs including the Northern Ohio Freethought Society, Newdow and his co-counsel this week filed an elaborate 112-page complaint in an Ohio federal district court.  The complaint (full text) in New Doe Child #1 v. Congress of the United States of America, (ND OH, filed 1/11/2016) traces in almost law-review style (and with 362 footnotes) the history of "In God We Trust" on coinage and currency. In addition to 1st Amendment free exercise, establishment clause and compelled speech claims, the suit also relies on RFRA, contending in part:

By placing “In G-d We Trust” on the nation’s coins and currency bills, Defendants have substantially burdened Plaintiffs in the exercise of their Atheistic (and similar) beliefs by requiring them – as the price to pay for using the nation’s coins and currency bills – to personally bear a religious message that is the antithesis of what they consider to be religious truth.

As to one plaintiff-- Adam Clayman-- who is not an atheist, the complaint alleges that he believes:

participation in any activity that ultimately leads to the superfluous printing of G-d’s name on secular documents or to the destruction of G-d’s printed name is sinful. Thus, aware that – due to the acts being challenged in this case – G-d’s printed name on the nation’s money will ultimately be destroyed, Plaintiff Clayman has to choose between engaging in sin or not using the nation’s coins and currency bills.

The Blaze and Cleveland Plain Dealer report on the lawsuit. (See prior related posting.)

AU Creates New RFRA Bill Tracker

Americans United For Separation of Church and State announced yesterday that its "Protect Thy Neighbor" (PTN) project has created a legislative tracking page that allows tracking of all RFRA-type legislation introduced into Congress or state legislatures-- legislation that it describes as "legislation that would allow individuals, businesses and government employees to harm others in the name of religion."  PTN's blog, The Shield, will explain and comment on many of the bills.

Suit Seeks To Enjoin Enforcement of Noise Law Against Church

As reported by the New Orleans Advocate and a Liberty Institute press release , a lawsuit was filed last Thursday on behalf of Vintage Church in Metairie, Louisiana seeking a temporary restraining order to prevent enforcement of the Jefferson Parish Noise Ordinance against the church.  The suit claims that enforcement violates the church's rights under the Louisiana Preservation of Religious Freedom Act.  The church is meeting on Sundays in an outdoor tent while one of its buildings is undergoing expansion. After neighbors-- one in particular-- complained that the services were too loud, enforcement authorities monitored sound levels and issued two criminal summons to the executive pastor.  The lawsuit charges that it is discriminatory to limit the church's services to 60 decibels while allowing louder noise from power tools, lawn mowers and demolition activities.

UPDATE: The New Orleans Times-Picayune reports that on Dec. 22, the trial court denied the church's request for injunctive relief.

Suit Challenges Non-Discrimination Fix To Indiana's RFRA ; Local Anti-Discrimination Laws

In Indiana yesterday, two pro-family advocacy groups filed suit in state court challenging the constitutionality of this year's anti-discrimination "fix" to Indiana's Religious Freedom Restoration Act.  The suit also challenges the legality of two local anti-discrimination ordinances-- one adopted by the city of Carmel and one by Indianapolis-Marion County.  The 178-paragraph complaint (full text) in Indiana Family Institute, Inc. v. City of Carmel, Indiana, (IN Super. Ct., filed 12/10/2015), says that plaintiff organizations believe in the Biblical teaching that marriage must be between one man and one woman, and that sexual relations must be within that marriage context.  They want to follow these teachings in their employment decisions and their programs.  They contend that the challenged laws preclude this, and in doing so violate a variety of state and federal constitutional provisions.  In a press release announcing the filing of the lawsuit, plaintiffs' attorneys said in part:

RFRA originally protected all religious viewpoints and insured a high level of protection for peoples' free exercise of religion.  The 'fix,' however, stripped that protection based on a person's particular religious view, such as, opposition to same-sex marriage.  This pits some religions that the government protects against other religions that will suffer government punishment if they don't fall in line.  We believe this discrimination between religious views is unconstitutional...

Indianapolis Star reports on the lawsuit.

UPDATE: In January 2016 plaintiffs filed an amended complaint adding Bloomington and Columbus, Indiana as defendants.

Counter-Letter Urges Obama To Retain 2007 Office of Legal Counsel Interpretation of RFRA

As previously reported, last month a coalition of 130 religious, civil rights and advocacy organizations sent a letter to the President urging that the Justice Department's Office of Legal Counsel reconsider a 2007 Memorandum that interpreted RFRA to require exemptions for religiously-affiliated organizations from non-discrimination provisions in federal grant programs. Now a counter-letter dated Sept. 10 and signed by 70 religious leaders and faculty at religiously-affiliated colleges (full text) has been sent to the President urging him to retain "basic principles and provisions of federal law that support religious staffing by religious organizations." The letter reads in part:

We are grateful that you have welcomed “all hands” to contribute to federal social policy by maintaining and refining the federal faith-based initiative and its rules that provide for equal opportunity for faith-based organizations to collaborate with government in serving community needs. Making it more difficult for faith-based organizations to join those partnerships would undermine, rather than burnish, your commitment to effective and flourishing “all hands” partnerships.

Mirror of Justice reports on the letter.

No Damage Remedy Available To Muslims Placed On No-Fly List For Retaliatory Reasons

In Tanvir v. Lynch, (SD NY, Sept. 3, 2015), Muslim plaintiffs sued claiming that when they refused to become FBI informants, partly because doing so would violate their religious beliefs, the government retaliated by placing them on the No-Fly List.  Subsequently they were removed from the list, but continued to pursue claims for damages.  The court held that it will not extend a Bivens  damage remedy to this new context, and that RFRA does not provide for money damages against federal officers in their personal capacities. The Center for Constitutional Rights issued a press release reacting to the decision.

130 Organizations Urge Obama To Rescind 2007 Justice Department Interpretation of RFRA

Yesterday a coalition of 130 religious, civil rights and advocacy organizations sent a letter (full text) to the President urging that the Justice Department's Office of Legal Counsel reconsider a 2007 Memorandum interpreting the interaction of the Religious Freedom Restoration Act with non-discrimination provisions in federal grant programs.  The letter reads in part:

[T]he OLC Memo relies on flawed legal analysis and wrongly asserts that RFRA is “reasonably construed to require” a federal agency to categorically exempt a religiously affiliated organization from a grant program’s explicit statutory nondiscrimination provision, thus permitting the grantee to discriminate in hiring with taxpayer funds without regard to the government’s compelling interest in prohibiting such discrimination....

...[S]ome have cited the OLC Memo in arguing that RFRA should broadly exempt religiously affiliated contractors from the nondiscrimination requirements in Executive Order 11246, including those you added just last year that bar government contractors from discriminating against LGBT workers. And, some are trying to extend its reach beyond the context of hiring: Several grantees and contractors have cited the OLC Memo to support their arguments that the government should create a blanket exemption that would allow them to refuse to provide services or referrals required under those funding agreements, specifically in the context of medical care for unaccompanied immigrant children who have suffered sexual abuse. 

 ADL and Americans United each issued its own press release on the letter.

Do State RFRAs Apply To Eminent Domain Proceedings?

The Daily Signal this week reports on a lawsuit in Houston, Texas making innovative use of the state's Religious Freedom Restoration Act to challenge an eminent domain proceeding.  The Houston Housing Authority is seeking to take two empty parcels of land belonging to the Latter Day Deliverance Revival Center as part of an urban renewal project.  The church says it acquired the parcels as part of a future expansion plan for the church, and that it uses the land for ministry activities. The church filed suit arguing that the Housing Authority must meet the compelling interest/ least restrictive means tests of RFRA before it may take the property which the church refuses to sell. Applying RFRA standards would make its acquisition extremely difficult.

Plaintiff Entitled To Accommodation From Affordable Care Act's Hyde Amendment Arrangement

In Howe v. Burwell, (D VT, July 20, 2015), a Vermont federal district court dealt with yet another permutation of religious objections to provisions in the Affordable Care Act.  Under the ACA, health insurers which offer policies through state exchanges may, but are not required to, cover abortion services.  If they do, in order to comply with the Hyde amendment that bars use of federal funds to pay for abortions, the insurance company is required to segregate at least $1 per month of the premium paid by each individual and use those funds to pay for abortion services. All policies offered through the Vermont exchange have this arrangement for abortion services which plaintiff claims, among other things, violates his free exercise rights under RFRA. He objects on religious grounds to funds he is required to pay in as a premium being used to pay for others' abortions.

The court held that most of plaintiff's RFRA claims against the federal government arise out of decisions third parties, such as private insurance companies, have made. However the federal government could accommodate plaintiff by refraining from enforcement actions against any insurance company that agrees not to comply with the segregation requirement for the policy offered to plaintiff. The court went on:

The Federal Defendants have already agreed not to enforce the segregation requirement against any third party health insurer willing to offer Plaintiff health insurance coverage. Notwithstanding that agreement, because the Federal Defendants have not offered this as an accommodation under RFRA on a permanent basis, Plaintiff retains standing to request it in the form of declaratory relief. ...

Plaintiffs request for a declaratory judgment that he is entitled to non-enforcement of the segregation requirement (and the separate payment) is therefore sufficiently plausible to avoid dismissal at this stage in the proceedings.

Cannabis Church Sues Under Indiana's New RFRA

In a move foreshadowed two months ago (see prior posting), in Indiana the First Church of Cannabis has filed suit invoking the state's recently-enacted RFRA in an attempt to shield the Church, its founder and two of its members from prosecution for possession of marijuana.  The complaint (full text) in First Church of Cannabis, Inc. v. State of Indiana, (IN Cir. Ct., filed 7/8/2015), alleges that cannabis is the sacrament of the Church, and laws punishing possession of marijuana and visiting a place where marijuana is used substantially burden plaintiffs' exercise of religion. The Indianapolis Star reports that more than 100 people attended the Church's second service yesterday evening, but because of prosecution threats it is not using cannabis at its services until it is successful in its lawsuit. According to WTHR News, Marion County Prosecutor Terry Curry complained:

Our office and police agencies have serious public safety issues we have to address every single day. I am beyond frustrated that we are having to devote valuable time and resources to this matter solely because of an ill-advised and unnecessary law enacted by our legislature, The act serves no purpose, no purpose whatsoever, other than political posturing.

ACLU Uses Indiana RFRA In Suit Challenging New Restrictions On Sex Offenders

The ACLU of Indiana filed a lawsuit yesterday challenging the prohibition in a newly enacted state law that keeps certain registered sex offenders from attending religious services. (ACLU press release).  At issue is Indiana Code § 35-42-4-14 (eff. July 1, 2015) that bars certain registered sex offenders from entering school property.  The complaint (full text) in John Doe I v. Allen and Elkhart County Prosecutors, (IN Super. Ct., filed 7/1/2015), alleges in part:

This statute ... [bans serious sex offenders] from going to worship in churches, synagogues, mosques, or other religious buildings that are located on the same as property parochial schools or certain preschool programming. Banning sex offenders from ... church on Sunday, because there are students in a school on the same grounds on Monday, is irrational and violates the due process of law protected by the Fourteenth Amendment.... It also violates Indiana’s newly enacted Religious Freedom Restoration Act, Indiana Code § 34-13-9-0.7, et seq. (eff. July 1, 2015), which prohibits government from imposing a substantial burden on a person’s exercise of religion absent a compelling governmental interest and a showing that the action is the least restrictive means to further that interest.

AP reports on the lawsuit and reactions to it.