Cannabis Advocate Will Be First To Test Indiana's RFRA

Indiana's controversial Religious Freedom Restoration Act goes into effect on July 1.  Bill Levin, a life-long advocate of legalizing marijuana, says he will be the first to test the law by holding the initial service of his newly created First Church of Cannabis that day.  WTHR News reported yesterday that Levin is looking for space to rent for holding the service, which he expects will attract 1000 people. Levin says: "We'll say a short prayer and go 'poof',"

Satanic Temple Member Files Suit Challenging Missouri's Abortion Restrictions Under State's RFRA

On Friday, after submitting a demand letter (full text), a member of the Satanic Temple filed a lawsuit in state court in Missouri challenging as a violation of Missouri's Religious Freedom Restoration Act the state's waiting period and informed consent requirements imposed before a woman may obtain an abortion. (See prior related posting.)  The complaint (full text) in Doe v. Nixon, (MO Cir. Ct., filed 5/8/2015), alleges that plaintiff has deeply held religious beliefs that her body is inviolable and subject to her will alone and that she alone decides whether to remove a non-viable fetus.  It contends that conditioning her decision to have an abortion on presenting her written materials prepared by the state that outline gestational development and the possibility of the abortion causing pain to the unborn child, the requirement that she view an ultrasound, and the statutory 72 and 24-hour waiting periods contitute restrictions on her free exercise of religion because they are contrary to her beliefs and unduly restrictive of her freedom of choice. Plaintiff also filed a Memorandum of Law in Support of a Temporary Restraining Order (full text).   Orlando Weekly reports on the lawsuit.

Satanic Temple Member Claims State RFRA Exemption To Missouri's Abortion Waiting Period

Friendly Atheist reports this week on plans by a member of the Satanic Temple to challenge Missouri's requirement for a 72-hour waiting period for abortions by asserting a religious freedom claim.  Missouri has a Religious Freedom Restoration Act (MO Rev. Stat Section 1.302.1).

Missouri law (MO Rev. Stat. Section 188.027.1)  requires that: "The physician who is to perform or induce the abortion or a qualified professional shall provide the woman with the opportunity to view at least seventy-two hours prior to the abortion an active ultrasound of the unborn child and hear the heartbeat of the unborn child if the heartbeat is audible." Using an exemption form developed by the Satanic Temple, the Missouri native identified as "Mary" claims that her sincerely held Satanic Temple beliefs are that her body is inviolable and subject to her will alone, and that inviolable body includes any fetal tissue so long as it is unable to survive outside her body as an independent human being.

Planned Parenthood of St. Louis is the only abortion provider in Missouri, and Mary lives hundreds of miles away from it, making a 72 hour wait after her initial appointment difficult. The head of the Satanic Temple says it will pursue litigation if Mary's exemption claim is not honored. Last year, using similar arguments, the Satanic Temple launched a campaign against "informed consent" laws that require abortion providers to furnish women certain informational material when they seek an abortion. (See prior posting.)

Kentucky Court Says Businesss May Refuse To Print Gay Pride T-Shirts

In Hands On Originals, Inc. v. Lexington-Fayette Urban County Human Rights Commission, (KY Cir. Ct., April 27, 2015), a Kentucky state trial court, reversing an order of a county human rights commission, held that a small business that prints promotional items for customers did not violate the county's public accommodation ordinance when it refused to print Lexington Pride Festival t-shirts for the Gay and Lesbian Service Organization.  The business, Hands On Originals ("HOO"), had a policy, displayed on its website, that it would refuse any order that endorsed a position in conflict with the convictions of the business' Christian owners. The court concluded that the refusal was not because of the sexual orientation of the representatives that communicated with HOO, but rather because of the message the t-shirt would convey-- that one should be proud of sexual relationships other than between a married man and woman. The court held that it is the right of HOO and its owners "not to be compelled to be part of the advocacy of messages opposed to their sincerely held Christian beliefs."

The court also held that the Commission's order substantially burdens the free exercise rights of HOO and its owners, in violation of Kentucky's Religious Freedom Restoration Act. Christian News reports on the decision. According to the Lexington Herald-Leader, an appeal of the court's decision is likely.

Texas Chef Says Feeding Homeless In Park Is Protected By State's RFRA

San Antonio, Texas chef Joan Cheever was cited by police earlier this month for feeding the homeless in the city's Maverick Park.  According to a report last week by My San Antonio, Cheever has been serving restaurant quality food to the city's homeless for the last ten years. She has a food permit for her non-profit mobile food truck known as  Chow Train, but police cited her for transporting and serving the food from another vehicle.  The ticket carries a potential fine of $2000. At her June 23 court hearing, Cheever will argue that her activity is protected by the 1999 Texas Religious Freedom Restoration Act.

Arkansas Quickly Enacts Narrower Version of RFRA Than Originally Passed

Heeding Governor Asa Hutchinson's request (see prior posting), the Arkansas state legislature today gave final passage to a narrower version of the Religious Freedom Restoration Act than the one it had passed earlier this week.  Senate Bill 975 (full text) now more closely mirrors the federal RFRA and is limited to claims or defenses against the government.  The ability to use the law in suits involving private parties was removed. The new version also eliminates a number of the broad definitional sections in the earlier bill. The law specifically provides that it is to be interpreted consistent with the federal RFRA and case law under it. As reported by USA Today,  Governor Hutchinson signed the bill  into law 30 minutes after the House completed passage of it.

Presidential Candidate Ted Cruz Praises Indiana RFRA, Says SCOTUS Ruling Upholding Marriage Equality Would Be Illegitimate

Sen. Ted Cruz, the only formally announced candidate so far for the 2016 Presidential race, spoke at Morningside College in Sioux City, Iowa yesterday, focusing on religious liberty and same-sex marriage. According to the Dallas Morning News, Cruz told his audience: "Religious liberty is not some fringe view. It is the basis of this country,"  He praised the recent action of the Indiana legislature in enacting its controversial Religious Freedom Restoration Act, saying:

We’re seeing in the news right now a lot of noise because the state of Indiana bravely stood up and passed a law defending religious liberty.

Criticizing Democrats and gay-rights activists, he added:

Because of their partisan desire to mandate gay marriage everywhere in this country, they also want to persecute anyone who has a good faith religious belief that marriage is a holy sacrament, the union of one man and one woman and ordained as a covenant by God.

Expressing concern over what the Supreme Court might rule this June in the same-sex marriage cases before it, he told his audience:

The first thing and I think the most important thing every one of us can do, is pray. Lift up in prayer.

Cruz said that if the Court legalizes same-sex marriage, he will urge Congress to pass legislation stripping courts of jurisdiction over the issue. He said that a ruling by the Court legalizing same-sex marriage would be "fundamentally illegitimate."  Cruz favors a Constitutional amendment that would leave the issue to the states.

Arkansas Governor Tells Legislature To Revise RFRA Bill Sent To Him

Arkansas Governor Asa Hutchinson yesterday, facing pressure from businesses in the state, asked the state legislature to recall from his desk the Religious Freedom Restoration Act that it passed on Tuesday (see prior posting) and amend it or pass a revised version of it.  AP reports that the state's largest employer, Wal-Mart, asked for the governor to veto the bill as did the governor's own son.  The legislature must act quickly since the version of the bill already formally sent to the governor becomes law automatically in five days if he does not veto it.  By last night, the state Senate passed a revised version that apparently limits the bill's use to actions in which the government is a party. The House of Representatives is expected to vote on the revised version today.

A Backgrounder On RFRA In Indiana and Arkansas

For those who may be interested in a general backgrounder on the Indiana and Arkansas RFRAs, I just published a piece in the Washington Post titled 10 things you need to know to really understand RFRA in Indiana and Arkansas.

Arkansas Legislature Passes RFRA Law That Is Broader Than Indiana's

The Arkansas General Assembly today gave final passage to HB 1228, the Arkansas Religious Freedom Restoration Act (full text) and sent it to Gov. Asa Hutchinson for his signature.  The bill's passage comes as growing controversy surrounds a religious freedom bill that became law in Indiana last week. (See prior posting.)  While a number of national media are describing the Arkansas law as similar to Indiana's (Huffington Post, Slate), a close examination of the Arkansas bill reveals that in a number of ways is is significantly broader than the Indiana law.  Here are some examples:

The definitional section in the Arkansas bill defines a "person" protected by the Act as including a corporation. Arkansas, however, does not include the language in Indiana's law that limits coverage of business entities to those where the protected beliefs are held by individuals who have control and substantial ownership of the entity.

The Arkansas law requires that in order to justify a substantial burden, the state must show that it has a compelling interest "in this particular instance."  That language does not appear in the Indiana law.

The Arkansas law defines "compelling governmental interest" to mean "a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion."

The Arkansas law permits a person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, to assert the violation or impending violation as a "claim or defense" even when the state is not a party to the proceeding.  The Indiana law only allows assertion of a RFRA violation against a private party as a "defense."  That is, unlike Indiana, it appears that the Arkansas law would permit a plaintiff to recover damages against a private party for a violation of religious rights by the government.  In that regard, the Arkansas bill provides that it does not create a right of action by an employee against a private employer.  Unlike Indiana, it does not similarly exclude an action by an applicant for employment or a former employee.

According to the Arkansas Democrat-Gazette, Gov. Hutcheson has in the past repeatedly said he would sign the legislation. However some business and political leaders have called for Hutchinson to veto the bill.

Satanic Temple Urges "Discrimination Transparency" Amendment To Michigan's Proposed RFRA

Fox News reported earlier this month that in a creative response to Michigan's proposed Religious Freedom Restoration Act, the Detroit Chapter of the Satanic Temple is urging that a "Discrimination Transparency" amendment be added to the bill.  The proposed amendment would legally require businesses that serve the public to post any discrimination policy in effect in a conspicuous location visible to patrons and employees.  The Satanic Temple even furnishes on its website a downloadable sign that could be used by businesses.  It reads: "Due To Sincerely Held Religious Beliefs, Service Is Denied To _______".

Indiana Passes RFRA Law

The Indiana General Assembly yesterday gave final approval to Senate Bill 101, the Indiana Religious Freedom Restoration Act. (full text).  The bill is broader than its Federal counterpart in several ways.  It explicitly protects the exercise of religion by entities as well as individuals.  Its enumeration of entities includes "a corporation", without limiting this to closely-held companies.  The bill's protections may be invoked when a person's exercise of religion is "likely" to be substantially burdened by government action, not just when it has been burdened.  The bill also permits the assertion of free exercise rights as a claim or defense in judicial or administrative proceedings even if the government is not a party to the proceedings. The relevant governmental entity has a right to intervene in such cases to respond to the RFRA claim. A remedy under the bill is only available against the government; suits by employees or applicants invoking the law against private employers are precluded.

In a statement (full text) after the bill passed yesterday, Governor Mike Pence said he strongly supports the bill and will sign it. Meanwhile, Gen Con, a major gaming convention held each year in Indianapolis, wrote the governor (full text) asking him to reconsider, saying that legislation that could lead to discrimination against its attendees will factor into its decision on whether to hold the convention in Indiana in future years.

7th Circuit: Milwaukee Archdiocese Cannot Protect Cemetery Trust Funds In Bankruptcy

In Listecki v. Official Committee of Unsecured Creditors, (7th Cir., March 9, 2015), the U.S. 7th Circuit Court of Appeals ruled that $55 million held by the Archdiocese of Milwaukee in a perpetual care trust fund for maintaining Catholic cemeteries is potentially available in bankruptcy to satisfy claims of clergy sex abuse victims.  The district court had held that the Archdiocese's free exercise rights under RFRA and the 1st Amendment would be infringed if the trust funds were made available to claimants. (See prior posting.)  The 7th Circuit held, however, that RFRA does not apply unless the government is a party to the suit, and that a creditors' committee in bankruptcy does not act "under color of law" as a governmental instrumentality.  It rejected the Archdiocese's 1st Amendment free exercise assertion, finding that the Bankruptcy Code's fraudulent transfer provisions are neutral and generally applicable. It further held that the Bankruptcy Code reflects a compelling governmental interest in the protection of creditors. AP reports on reactions to the decision.

State RFRA Legislation Tracker Created

As a number of states consider new or amended religious freedom statutes, Don Byrd at the Baptist Joint Committee's Blog From the Capital has created an extremely useful State RFRA Bill Tracker. The Tracker, posted last week, follows both newly proposed RFRA laws as well as proposed amendments to existing ones-- with links to the bills.  It also links to all state RFRA laws that have already been enacted.  The page will follow the progress of the bills and highlight the key language at the core of each proposal.

Court Martial Conviction For Refusal To Remove Biblical Quotes From Desk Upheld

In United States v. Sterling, 2015 CCA LEXIS 65 (NMCCA, Feb. 26, 2015), 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.  According to the court;

appellant's duties included sitting at a desk and utilizing a computer to assist Marines experiencing issues with their Common Access Cards. The appellant printed three copies of the biblical quote "no weapon formed against me shall prosper" on paper in 28 point font or smaller. The appellant then cut the quotes to size and taped one along the top of the computer tower, one above the computer monitor on the desk, and one above the in-box. The appellant testified that she is a Christian and that she posted the quotation in three places to represent the Christian trinity.

The court rejected defendant's free exercise and RFRA defenses, holding:

the definition of a "religious exercise"[in RFRA]  requires the practice be "part of a system of religious belief." ...  Personal beliefs, grounded solely upon subjective ideas about religious practices, "will not suffice" because courts need some reference point to assess whether the practice is indeed religious.... For these reasons, we reject the appellant's invitation to define "religious exercise" as any action subjectively believed by the appellant to be "religious in nature.

Here, the appellant taped a biblical quotation in three places around her workstation, organized in a fashion to "represent the trinity." While her explanation at trial may invoke religion, there is no evidence that posting signs at her workstation was an "exercise" of that religion in the sense that such action was "part of a system of religious belief." 

House Holds Hearing On RFRA and RLUIPA

Yesterday the House Judiciary Committee's Subcommittee on the Constitution and Civil Justice held a hearing titled Oversight of the Religious Freedom Restoration Act and the Religious Land Use and Instituionalized Persons Act.  The full text of the prepared statements of the four witnesses appearing at the hearing are available on the Committee's website.

FLDS Members Continue To Resist DOL Subpoenas On Religious Grounds

Since 2013, the U.S. Department of Labor has been investigating whether federal child labor and wage and hour laws were violated in the 2012 harvest at the  Southern Utah Pecan Ranch. According to a Salt Lake Tribune report last September, Paragon Contractors was paid to furnish labor for the harvest, and the Labor Department suspects that FLDS Church members-- schoolchildren and their parents-- were deployed to take part in the harvest without pay.  Instead they merely got to keep half of the pecans they harvested. Paragon is owned by Brian Jessop, an FLDS Church leader, and apparently he turned over amounts the company was paid for the harvest to the Church.  In an opinion last September (see prior posting), a Utah federal district court ruled that under RFRA, church member Vergel Steed did not have to respond to a Department of Labor subpoena seeking information about the internal affairs and organization of the Church. Steed claimed that he believes the identity of Church leaders, the Church's organization and its internal affairs are sacred matters and he has vowed not to discuss them.

The Labor Department has also subpoenaed other FLDS Church members.  AP and the Salt Lake Tribune report that yesterday the same Utah federal judge handed down a ruling that may be the first step toward excusing two brothers of former FLDS Church leader Warren Jeffs from responding to subpoenas seeking information about working conditions on the farm as well as FLDS Church structure and leadership.  Judge David Sam ruled that Lyle and Nephi Jeffs have sincere religious beliefs that prevent them from answering questions by outsiders about the FLDS Church's labor practices, but they must answer questions about phone calls allegedly telling children to take off from school to work and telling parents to work without pay. The judge however heard arguments later yesterday on whether the government has a compelling interest in obtaining the Jeffs' testimony beyond this.  All of this came only a day after the ruling by the U.S. Supreme Court in Holt v. Hobbs giving a broad reading to religious liberty protections in federal law. (See prior posting.)

Bankruptcy Court Rejects RFRA Defense To Fraudulent Conveyance Recovery

In In re Khan, 2014 Bankr. LEXIS 4205 (Bkrptcy. ED NY, Sept. 30, 2014), a New York federal bankruptcy court rejected a defendant's Religious Freedom Restoration Act defense against an attempt by the bankruptcy trustee to recover some $35,500, the proceeds of certain real estate transactions, as fraudulent conveyances. Defendant, son of Shahara Khan who filed a Chap. 7 bankruptcy petition argued that:

the Trustee's claims amount to a violation of the RFRA because they would undo the transactions entered into between the Debtor and her son in furtherance of their personal religious, cultural, and familial obligations. In particular ... "[i]t is the religious belief and practice of the family that [the] family is one unit and transfer of an asset from [one family member] to the other does not transfer real ownership." ... [and that] "[i]t is against the religious practice of the family to place mother or son as creditor and debtor of each other."....

The court rejected defendant's claim, stating in part:

Here, the record shows that the Defendant sincerely believes, as a matter of his religion and culture, that there can be no "business between mother and son.".... The Defendant and his sister "had a religious call to respect our mother and to show our respect we put our mother['s] name on our first house we ever bought here at the United States."...  

This Court respects and acknowledges the sincerity of the Defendant's religious beliefs. But that does not mean that those beliefs, and the Defendant's free exercise of his religion, is burdened by the relief sought by the Trustee. The Defendant has not shown that the avoidance of the Mortgage Proceeds Transfer and the Sale Proceeds Transfer ... substantially burdens the Defendant's right to practice his religion. He has not shown that he will be required to refrain from engaging in a practice important to his religion, or compelled to choose between following the precepts of his religion or accepting a benefit  under law. Nor has he demonstrated that he is under "substantial pressure . . . to modify his behavior" or "to violate his beliefs."

5th Circuit: Interior's Eagle Feather Rules Violate RFRA

In McAllen Grace Brethren Church v. Salazar, (5th Cir., Aug. 20, 2014), the U.S. 5th Circuit Court of Appeals held that the Department of Interior had not sufficiently shown that its policy of limiting permits for the possession of eagle feathers to members of federally recognized tribes meets the strict scrutiny requiremnts of the Religious Freedom Restoration Act. The regulations were adopted in order to enforce the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act. At isssue was the use of eagle feathers at a powwow by a member of the Lipan Apaches which is not a federally recognized tribe. The court concluded that even if the government has a compelling interest in protecting eagles and furthering its relationship with federally recognized tribes, "the Department has not sufficiently demonstrated at this stage of the proceedings that the current regulatory framework is the least restrictive means of achieving its goals." Reuters reports on the decision.

Guantanamo Bay Detainees Argue Hobby Lobby Decision Makes RFRA Applicable To Them

AlJazeera reports on emergency motions filed last week in D.C.'s federal district court on behalf of two Guantanamo Bay detainees for temporary restraining orders to prohibit the government from denying the detainees the right to participate in communal prayer during Ramadan. The motions in Hasan v. Obama (full text) and Rabbani v. Obama (full text), both filed July 3 by the British advocacy organization Reprieve, argue that the previous D.C. Circuit decision in Rasul v. Myers holding that Guantanamo Bay detainees are not persons protected by the Religious Freedom Restoration Act has effectively been overruled by the Supreme Court's recent Hobby Lobby decision. As the argument is framed in the Rabbani motion:

The holding and express reasoning in Hobby Lobby makes Rasul a dead letter. Rasul relied on Supreme Court case law that predated Smith and excluded nonresident aliens from the scope of constitutional protections guaranteed by the Fourth and Fifth Amendments. Hobby Lobby wholly undermines Rasul by holding that the pre-Smith Supreme Court case law does not restrict the scope of “person[s]” protected by the RFRA, which Congress intended to exceed the scope of constitutional protection as set forth in the pre-Smith case law. Hobby Lobby instructs that the scope of “person[s]” protected by the RFRA is to be determined by reference to the definition of “person” in the Dictionary Act, not by reference to the pre-Smith case law.

... The Guantanamo Bay detainees, as flesh-and-blood human beings, are surely "individuals," and thus they are no less "person[s]" than are the for-profit corporations in Hobby Lobby or the resident noncitizens whom Hobby Lobby gives as an example of persons to whom the RFRA must apply.

A hearing on the emergency motions is scheduled for tomorrow morning.