Groups Ask Holder To Withdraw Memo Allowing Religious Hiring Preferences In Federal Grant Programs

This week, 90 religious, educational, civil rights, labor, LGBT, women’s, and health groups signed a joint letter (full text) to Attorney General Eric Holder asking that the Office of Legal Counsel withdraw the Bush Administration's June 29,  2007 memo allowing faith-based organization that receive federal grant funds to give a preference to co-religionists in hiring. That memo concluded that RFRA overrides the religious anti-discrimination provisions of the Juvenile Justice and Delinquency Prevention Act (see prior posting). However, according this week's joint letter, the OLC memo has been applied to other grant programs as well, including most recently to grants under the Violence Against Women Act.  A Department of Justice  Frequently Asked Questions memo dated April 9, 2014 says that the non-discrimination grant provision in the Violence Against Women Reauthorization Act of 2013 does not apply to hiring of co-religionists by faith-based organizations where the funded program is an exercise of religion, foregoing a religious preference in hiring would be a substantial burden, and the funding agency cannot show a compelling interest furthered by the least restrictive means.  This week's letter argues:

RFRA should not be interpreted or employed as a tool for broadly overriding statutory protections against religious discrimination or to create a broad free exercise right to receive government grants without complying with applicable regulations that protect taxpayers.

[Thanks to Michael Lieberman for the lead.]

Suit Claims FBI Infringes Muslims' Free Exercise Rights By Using No Fly List To Coerce Them To Become Informants

The Center for Constitutional Rights yesterday announced the filing of a lawsuit against the FBI on behalf of four American Muslim men who were placed on the No-Fly List after they refused to work as FBI informants in their religious communities, or were told they would be removed from the List only if they agreed to work with the FBI.  The complaint (full text) in Tanvir v. Holder, (SD NY, filed 4/22/2014) claims that the FBI's actions violate plaintiffs' procedural due process rights, 1st Amendment free exercise rights and the Religious Freedom Restoration Act. It alleges in part:

65.  Many American Muslims, like many other Americans, and many followers of other religions, have sincerely held religious and other objections against becoming informants in their own communities, particularly when they are asked to inform on the communities as a whole rather than specific individuals reasonably suspected of wrongdoing. Acting as an informant would require them to lie and would interfere with their ability to associate with other members of their communities on their own terms. For these American Muslims, the exercise of Islamic tenets precludes spying on the private lives of others in their communities.

66. The FBI uses the No Fly List to coerce American Muslims into becoming informants and to retaliate against them when they exercise constitutionally protected rights.

Washington Post reports on the lawsuit.

Mississippi Legislature Passes Religious Freedom Restoration Act

On Tuesday, the Mississippi legislature gave final passage to SB 2681, the  Mississippi Religious Freedom Restoration Act after a Conference Committee took out some of the language that civil rights groups found objectionable. The final version of the bill passed the Senate by a vote of 37-14, and the House by a vote of 79-43. The bill now goes to Gov. Phil Bryant who, Reuters reports, will sign the bill. As passed, the bill requires state and local governments to demonstrate that they are using the least restrictive means to further a compelling governmental interest before they may substantially burden religious exercise. Opponents of the bill argued that it could permit discrimination against gays and lesbian on religious grounds. Another portion of the bill adds the phrase "In God We Trust" to the Mississippi seal.

Arizona Governor Vetoes Anti-Gay Religious Freedom Bill

As reported by the Arizona Daily Star, yesterday Arizona Gov. Jan Brewer vetoed H.B. 1062, the controversial amendments to the state's Religious Freedom Restoration Act that would, among other things, have allowed businesses to invoke religious freedom claims to refuse to serve gays and lesbians, particularly in the context of same-sex marriages. (See prior posting.) Announcing her decision at a news conference (full text of remarks), Brewer said that the bill is unneeded and "could divide Arizona in ways we cannot even imagine and no one would ever want." In her formal Veto Letter (full text), Brewer said in part:

Senate Bill 1062 ... does not seek to address a specific and present concern related to Arizona businesses.  The out-of-state examples cited by proponents of the bill, while concerning, are issues not currently existing in Arizona.  Furthermore, the bill is broadly worded and could result in unintended and negative consequences.  The legislation seeks to protect businesses, yet the business community overwhelmingly opposes the proposed law.  Moreover, some legislators that voted for the bill have reconsidered their votes and now do not want this legislation to become law.

DC Circuit: RFRA Does Not Protect Guantanamo Detainees

In Aamer v. Obama, (DC Cir., Feb. 11, 2014), the D.C. Circuit denied a preliminary injunction to Guantanamo detainees who brought a habeas corpus action to challenge the government's force feeding protocol used to protect the health of detainees engaged in protest hunger strikes.  Among the detainees' claims was that their force feeding violates the Religious Freedom Restoration Act because it prevents them from from engaging in communal prayers during Ramadan.  Judge Tatel's majority opinion (which also dealt at length with other issues) held that RFRA’s protections do not extend to Guantanamo detainees. He reaffirmed prior precedent in the D.C. Circuit that nonresident aliens do not qualify as protected “person[s]” within the meaning of RFRA. Judge Williams, dissenting, did not reach the RFRA issue because he urged dismissal of the entire action on jurisdictional grounds. [Thanks to Arthur Spitzer for the lead.]

Hawaii Federal Court Rejects RFRA Claims In 2 Cannabis Cases

This week the Hawaii federal district court rejected Religious Freedom Restoration Act claims in two separate marijuana cases:

United States v. Christie, (D HI, Dec. 30, 2013), involves a motion in limine in the prosecution of Roger Christie, the founder and leader of The Hawaiian Cannabis Ministry, and Sherryanne L. St. Cyr, an ordained minister in the THC Ministry, who are charged with manufacturing, distributing and possessing marijuana.  In one opinion (full text) the court held that Defendants had established a prima facie case for raising a Religious Freedom Restoration Act defense.  In a second opinion issued the same day (full text), the court held the government had established a compelling interest in enforcing the Controlled Substances Act against defendants to prevent diversion of substantial amounts of marijuana to non-adherents of the church. Finding also that the prosecution is the least restrictive means to further that compelling interest, the court held that defendants ultimately are not entitled to present a RFRA defense at trial.

In Oklevueha Native American Church of Hawaii, Inc. v. Holder, (D HI, Dec. 31, 2013), the court dismissed a suit brought by the Native American Church of Hawaii and its founder Rex "Raging Bull" Mooney seeking a declaratory judgment decreeing that criminal prosecution under the federal Controlled Substances Act for consuming, cultivating, possessing or distributing of cannabis would violate plaintiffs' free exercise of religion in violation of RFRA. The court said in part:

No reasonable juror could infer, from what is presently in the record, that Mooney’s religion is anything more than a strongly held belief in the importance or benefits of marijuana. Even if this belief is sincerely held, and even if marijuana use is indeed beneficial, the court cannot conclude from the record that a reasonable juror could find that Plaintiffs’ belief is religious in nature....

Even if the evidence in the record did support the existence of a religion,... a reasonable juror could not conclude that the prohibition on cannabis constitutes a substantial burden on Plaintiffs’ alleged religion..... Mooney himself describes peyote as his religion’s “primary sacrament,” and lists a litany of other drugs his Church members use. Nothing in the record explains why relying on these other drugs instead of cannabis would be more than an inconvenience for Plaintiffs.

Millett, Who Helped Author Important RFRA Brief, Confirmed For D.C. Circuit

As reported by the Washington Post, the U.S. Senate today, by a vote of 56-38, confirmed Patricia Millett to serve on the U.S. Court of Appeals for the D.C. Circuit.  Millett served as an Assistant to the Solicitor General at the U.S. Department of Justice from 1996-2007.  While serving in that role, she was one of the attorneys who wrote the U.S. government's brief in City of Boerne v. Flores, 1997 U.S. S. Ct. Briefs LEXIS 185, arguing unsuccessfully that the provisions of the Religious Freedom Restoration Act that applied to state governments represented a proper exercise of Congress's power under Section 5 of the Fourteenth Amendment.

Federal Court Says Contraceptive Coverage Accommodation For Religious Non-Profits Likely Violates RFRA As Non-Profit Suits Keep Being Filed

Yesterday a Pennsylvania federal district court became the first to weigh in on the merits of the accommodation provided for religious non-profit educational and charitable organizations that object to the Affordable Care Act contraceptive coverage mandate.  The court, finding a likelihood of success on the merits in plaintiffs' RFRA challenge to the final rules that were adopted in June, issued an expedited preliminary injunction.  In Zubik v. Sebelius, (WD PA, Nov. 21, 2013), the court said in part:

[A]lthough the “accommodation” legally enables Plaintiffs to avoid directly paying for the portion of the health plan that provides contraceptive products, services, and counseling, the “accommodation” requires them to shift the responsibility ... onto a secular source. The Court concludes that Plaintiffs have a sincerely-held belief that “shifting responsibility” does not absolve or exonerate them from the moral turpitude created by the “accommodation”; to the contrary, it still substantially burdens their sincerely-held religious beliefs.....

The application of these two regulations – one an exemption and one an accommodation – has the effect of dividing the Catholic Church into two separate entities. Now, one regulation (the “exemption”) applies to the worship arm of the Catholic Church and thus applies to all of those employees who work inside a church’s walls. While the other regulation (the “accommodation”) applies to the “good works” arms of the Catholic Church, and thus applies to those who stand on the church steps and pass out food and clothes to the needy.... [B]y dividing the Catholic Church in such a manner ..., the Government has created a substantial burden on Plaintiffs’ right to freely exercise their religious beliefs.

The court went on to hold that the exemption for churches themselves "is an acknowledgment of the lack of a compelling governmental interest" at least as to some employers. It then reasoned:

If the Court were to conclude that the Government’s stated interests were sufficiently “compelling” to outweigh the legitimate claims raised by the nonprofit, religious affiliated/related Plaintiffs, the net effect ... would be to allow the Government to cleave the Catholic Church into two parts: worship, and service and “good works,” thereby entangling the Government in deciding what comprises “religion.”

Pittsburgh Post-Gazette reports on the decision. [Thanks to Luke Goodrich for the lead.]

Meanwhile, another religious non-profit whose challenge originally posed ripeness problems (see prior posting)  has filed a new lawsuit challenging the contraceptive coverage mandate. The case is Belmont Abbey College v. Sebelius,(D DC, filed 11/20/2013) (full text of complaint; press release from Becket Fund).

5th Circuit Remands Sikh's RFRA Challenge To Ban On Kirpan In Federal Building

In Tagore v. United States, (5th Cir., Nov. 13, 2013), the U.S. 5th Circuit Court of Appeals rejected a Title VII religious discrimination claim by a Sikh employee of the Internal Revenue Service who lost her job after she insisted on wearing her kirpan into her federal office building. Federal law (18 USC Sec. 930) prohibits weapons with blades over 2.5 inches long in federal building. The court said that: "An employer need not accommodate an employee’s religious practice by violating other laws."

However the court remanded for reconsideration of plaintiff's RFRA claim in light of a Policy Directive issued by the Federal Protective Service after the case concluded in the district court. (See prior posting.) That Directive permits granting of exemptions in federal buildings for Sikh articles of faith, and thus possibly undercuts the government's argument regarding the need for uniform application of the weapons ban.  The appeals court also held that, contrary to the district court's conclusion, plaintiff had created a genuine issue of material fact as to her sincere religious belief in wearing a 3-inch bladed kirpan.  [Thanks to Blog From the Capital for the lead.]

Developments In Challenges To Contraceptive Coverage Mandate

On Tuesday, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Eden Foods Inc. v. Sebeius, (cert. filed 11/12/2013).  In the case, the 6th Circuit Court denied a preliminary injunction to a for-profit natural foods corporation and its Catholic owners who claim that the contraceptive coverage mandate under the Affordable Care Act violates their free exercise rights as protected by the Religious Freedom Restoration Act. (See prior posting.) Thomas More Law Center announced the filing of the cert. petition.

In June (see prior posting), a Pennsylvania federal district court granted Geneva College a preliminary injunction pending a decision on the merits in its challenge to the requirement that it include in its student health plans coverage for contraceptives that it considers abortifacients. As reported by BNA Daily Report for Executives [subscription required], the Christian college has now filed a motion and supporting Memorandum of Law (full text) seeking a similar preliminary injunction for the health plan covering its employees. The case is Geneva College v. Sebelius, (WD PA, motion filed 11/12/2013).

Endorsing Agency For Two Conservative Chaplains Sues VA Over Pastoral Education Program Clashes

Fox News and Breibart News report  on a federal lawsuit filed last week by the endorsing agency for two military chaplains who were forced out of a Clinical Pastoral Education program run by the Department of Veterans Affairs in San Diego. The program is required in order to work as a chaplain in a VA hospital. The two chaplains, who were endorsed by the Conservative Baptist Association of America, continually clashed in class with the religiously liberal instructor, Nancy Dietsch.  The complaint (full text) in Conservative Baptist Association of America, Inc. v. Shenseki, (D DC, filed 11/8/2013), sets out examples of in-class exchanges between Dietsch and chaplains Steven Firtko and Dan Klender, among which are:

... Dietsch informed the class she believes God could be a man or woman. Chaplain Firtko recited the Lord’s Prayer, stating “Our Father who Art in Heaven.” In response, Ms. Dietsch angrily pounded her fist on the table and shouted: “Do not quote Scripture in this class!”....

When Chaplain Klender responded to a question during a group discussion regarding the Sandy Hook school shooting in Newtown CT, by stating he would tell a parent whose child was a victim by stating that “there is evil in the world,” Ms. Dietsch impugned his core faith beliefs stating they would not work in a clinical setting. In the presence of the other students she said: “You don’t actually believe that do you?”

Dietsch also told the class that The VA and she "do not allow Chaplains to pray 'in Jesus' name' in public ceremonies."

The lawsuit contends that the program's intolerance of mainstream Judeo-Christian beliefs violates RFRA, the 1st Amendment's Free Exercise and Free Speech clauses. It also contends that discrimination against Conservative Baptist Association chaplains was arbitrary and capricious.

In a statement to news media, the VA said that the two chaplains were "bullying other classmates and refusing to honor other faith groups." [Corrected to make clear that plaintiff is the endorsing agency, not the chaplains. Thanks to God and Country blog.]

7th Circuit In 2-1 Decision Grants Preliminary Injunction To For-Profit Corporations and Their Owners In Contraceptive Mandate Challenge

In Korte v. Sebelius, (7th Cir., Nov. 8, 2013), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision in a consolidated appeal of suits by two unrelated small businesses and their Catholic owners, held that a preliminary injunction should be granted barring enforcement of the Affordable Care Act contraceptive coverage mandate on religious freedom grounds.  The companies involved are Korte & Luitjohan Contractors, Inc., an Illinois construction company, and Grote Industries, Inc., an Indiana manufacturer of vehicle safety systems.

The majority, in a 64-page opinion, held that for-profit corporations are "persons" whose religious exercise is protected by the Religious Freedom Restoration Act, saying:

It’s common ground that nonprofit religious corporations exercise religion in the sense that their activities are religiously motivated. So unless there is something disabling about mixing profit-seeking and religious practice, it follows that a faith-based, for-profit corporation can claim free-exercise protection to the extent that an aspect of its conduct is religiously motivated.

The majority then concluded that the mandate imposes a substantial burden on the religious exercise of both the corporations and their individual owners and managers that is not justified by a compelling governmental interest and is not achieved by the least restrictive means.

Judge Rovner wrote a very interesting 89-page dissent. Early in her opinion, she sets out several hypotheticals that follow from the majority's decision, involving employers who object on religious grounds to paying for coverage for other kinds of medical treatment for their employees.  Later in her opinion, she discusses at length what she describes as "significant logical difficulties posed by attributing religious rights to secular corporations."  She says in part:

First, to the extent that a corporation’s religious principles and identity derive from its owners, what if the owners have diverse beliefs, diverse degrees of devotion, and diverse notions as to whether and how the corporation ought to reflect their religious beliefs?...

Second, suppose that the company’s ownership changes. What happens then to the beliefs we have attributed to the corporation based on its ownership?....

Third, are the religious beliefs of corporate owners solely determinative of the corporation’s religious principles? Suppose ... that a corporation’s owners have entirely entrusted the management of the corporation to its longtime CEO.... Are her beliefs attributable to the corporation?  Or suppose ... the focus of the corporation is on serving members of a particular religion-- selling kosher or halal food products, for example....  Can the corporation be said to hold the religious beliefs of its target market, even if its owners and managers do not?....

[I]f a corporation has free exercise rights because the Dictionary Act suggests it is among the "persons" to which RFRA grants the right to make such a claim... then why does a corporation of large, diverse, or even public ownership not have free exercise rights also? And how would the beliefs of a public corporation be determined—by a vote at the annual shareholders’ meeting, for example?

The 7th Circuit had previously granted an injunction pending appeal in the case. (See prior posting.)