Court Says Free Exercise Challenge To Blood Alcohol Test Not Clearly Raised

In In re Refusal of Milewski, 2013 Wisc. App. LEXIS 996 (WI App., Nov. 27, 2013), a Wisconsin state appeals court rejected an appeal by Victoria Milewski, a Christian Scientist,whose drivers license was suspended after she refused to take a blood alcohol test. She told officers that her religion did not allow her to permit the intrusion of a needle into her body, but officers refused to give her a urine test instead. At trial, Milewski's counsel argued that Milewski had made a reasonable objection to the blood draw.  The appeals court said:

it appears that Milewski might have been ... attempting to present a First Amendment challenge to the implied consent law.... That is, Milewski might have meant to argue that the implied consent statutory scheme ... impermissibly burdens her right to practice her religion .... I express no opinion about the potential merits of such an argument, because it has not been clearly presented in this refusal proceeding, and certainly has not been supported by legal authority. Therefore, I have no reasonable alternative but to reject it.

Nashville Diocese and Related Entities Sue Over Contraceptive Coverage Mandate

The Tennessean reports that last week the Catholic Diocese of Nashville and a number of its affiliated non-profit organizations filed suit in federal district court challenging the application to them of the federal government's Affordable Care Act contraceptive coverage mandate. Last year a similar suit by the Diocese was dismissed on standing and ripeness grounds. (AP). The new lawsuit is similar to those filed by other religious non-profits since the Obama administration's final rules creating a compromise solution for non-profits were adopted.

Minnesota Supreme Court Suspends Lawyer For Anti-Catholic Statements Against Judges

In In re Petition for Disciplinary Action against Rebekah Mariya Nett, (MN Sup. Ct., Nov. 27, 2013), the Minnesota Supreme Court imposed an indefinite suspension from the practice of law with no right to petition for reinstatement for at least 9 months against an attorney who, among other things, made repeated anti-Catholic slurs directed at a federal bankruptcy judge and several bankruptcy trustees in connection with representing a client. (See prior related posting.) The Supreme Court said:

Nett repeatedly made frivolous and harassing personal attacks and discriminatory statements in 11 different pleadings in five distinct matters. She filed those pleadings in six tribunals over the course of 17 months. She also continued to make false statements about members of the judiciary and others after being sanctioned for the same conduct.

Reporting on the court's decision, the St. Paul Pioneer Press says that some of the objectionable statements were in bankruptcy proceedings of entities related to the Dr. R.C. Samanta Ray Institute of Science and Technology, an alleged cult in which attorney Nett was raised.

European Court Hears Arguments In French Burqa Ban Challenge

Yesterday, the Grand Chamber of the European Court of Human Rights heard oral arguments (video of full arguments) in S.A.S. v. France, (Application no. 43835/11).  As described in a press release from the Court:

The case concerns the complaint of a French national, who is a practising Muslim, that she is no longer allowed to wear the full-face veil in public following the entry into force, in April 2011, of a law prohibiting concealment of one’s face in public places.

(See prior related posting.)

Chicago Catholic Archdiocese Settles Abuse Suit; Agrees To Release Files

The Chicago Sun-Times this week reports that the Catholic Archdiocese of Chicago has agreed to a $2.3 million settlement in a suit by a man now in his early 20's who between 2004 and 2006 was sexually abused by now-defrocked former priest Daniel McCormack. The settlement also calls for the Archdiocese to release on Jan. 15 files on allegations of sexual abuse against a total of 30 priests, including McCormack.  The files will include information on how Church officials responded to the allegations. On its website this week, the Archdiocese confirmed that it plans to release these files in January, and also will update its website to include more complete information on 30 others. In a related posting, the Archdiocese responded to several statements made in a press conference by the president of Survivors Network of Those Abused By Priests.

President's Thanksgiving Day Proclamation

Today is Thanksgiving. Earlier this week, President Obama issued a Presidential Proclamation (full text) setting today as the official date for the holiday this year.  The Proclamation reads in part:

Thanksgiving offers each of us the chance to count our many blessings -- the freedoms we enjoy, the time we spend with loved ones, the brave men and women who defend our Nation at home and abroad....

This Thanksgiving Day, let us ... lift each other up and recognize, in the oldest spirit of this tradition, that we rise or fall as one Nation, under God.

President Sends Hanukkah Greetings

Tonight is the beginning of the Jewish holiday of Hanukkah.  Today the White House issued a statement from President Obama (full text) sending warm wishes to all those celebrating the holiday.  The statement says in part:

For the first time since the late 1800s – and for the last time until some 70,000 years from now – the first day of Hanukkah falls on Thanksgiving.  It’s an event so rare some have even coined it "Thanksgivukkah."  As we gather with loved ones around the turkey, the menorah, or both, we celebrate some fortunate timing and give thanks for miracles both great and small. 

Like the Pilgrims, the Maccabees at the center of the Hanukkah story made tremendous sacrifices so they could practice their religion in peace.

Britain's Supreme Court Says Christian Hotel Owners May Not Refuse To Rent To Gay Couple

In Bull v. Hall, (UK Sup. Ct., Nov. 27, 2013), Britain's Supreme Court held 5-0 that the Equality Act (Sexual Orientation) Regulations 2007 prohibit a Christian couple who operate a hotel from refusing on religious grounds to rent a room with one double bed to a same-sex couple (who were in a civil partnership arrangement). The hotel owners rented double bed rooms only to married couples.  Britain's  Equality Act 2010 distinguishes between "direct" and "indirect" discrimination.  Indirect discrimination-- which is similar to the disparate impact concept in U.S. law-- is allowed if it can be justified as "a  proportionate means of achieving a legitimate aim."  Direct discrimination may not be justified.  All 5 of the Supreme Court's justices concluded that the refusal to rent to the couple amounted to unjustifiable indirect discrimination on the basis of sexual orientation. Three of the justices also concluded that the refusal amounted to direct sexual-orientation discrimination.

Lady Hale's lead opinion disposed of the hotel owners' religious liberty claims rather briefly, saying:

There is no question of ... replacing “legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the defendants’ beliefs)” .... If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today. 

The court's decision in the closely-watched case affirms the conclusion of the Court of Appeals. (See prior related posting.)  The Daily Mail reports on the decision. [Thanks to Marc Stern via Religionlaw for the lead.]

Planned Move of U.S. Vatican Embassy Stirs Conroversy

On Monday, the U.S. State Department held a conference call with reporters (full transcript) to explain its decision to move the U.S. Embassy to the Holy See to a location within the same compound in Rome that houses the U.S. Embassy to Italy and the U.S. Embassy to the United Nations offices in Rome.  As reported yesterday by Religion News Service, former U.S. ambassadors and representatives to the Vatican have charged that this is a downgrading. President Clinton's first ambassador to the Vatican, Raymond Flynn, has been particularly critical, telling the National Catholic Reporter last week:

It's not just those who bomb churches and kill Catholics in the Middle East who are our antagonists, but it's also those who restrict our religious freedoms and want to close down our embassy to the Holy See

However the State Department says there will be no reduction in diplomatic staff. Current U.S. Ambassador to the Vatican Ken Hackett tells National Catholic Reporter that, if anything, the move will give the embassy greater stature. The State Department says the move is motivated by cost savings and serious security concerns.

Pope Francis Issues Important Document On The Future of the Church, Including Role of Religion In Modern Society

As reported by Vatican Radio, yesterday Pope Francis issued an important 224-page document (full text in English) titled Evangelii Gaudium ("The Joy of the Gospel"). The wide-ranging "Apostolic Exhortation" sets out the Pope's vision for the Catholic Church. In a section captioned Social dialogue in a context of religious freedom, the Pope speaks broadly of the role of religion in today's pluralistic society, saying in part:

255. The Synod Fathers spoke of the importance of respect for religious freedom, viewed as a fundamental human right... This includes “the freedom to choose the religion which one judges to be true and to manifest one’s beliefs in public”... A healthy pluralism ... does not entail privatizing religions in an attempt to reduce them to the quiet obscurity of the individual’s conscience or to relegate them to the enclosed precincts of churches, synagogues or mosques. This would represent, in effect, a new form of discrimination and authoritarianism. The respect due to the agnostic or non-believing minority should not be arbitrarily imposed in a way that silences the convictions of the believing majority or ignores the wealth of religious traditions. In the long run, this would feed resentment rather than tolerance and peace.

256. .... Intellectuals and serious journalists frequently descend to crude and superficial generalizations in speaking of the shortcomings of religion, and often prove incapable of realizing that not all believers – or religious leaders – are the same. Some politicians take advantage of this confusion to justify acts of discrimination. At other times, contempt is shown for writings which reflect religious convictions.... Is it reasonable and enlightened to dismiss certain writings simply because they arose in a context of religious belief? These writings include principles which are profoundly humanistic and, albeit tinged with religious symbols and teachings, they have a certain value for reason.

257. As believers, we also feel close to those who do not consider themselves part of any religious tradition, yet sincerely seek the truth, goodness and beauty which we believe have their highest expression and source in God. We consider them as precious allies in the commitment to defending human dignity, in building peaceful coexistence between peoples and in protecting creation.... 

9th Circuit Court Employees Entitled To Health Benefits For Same-Sex Domestic Partners

In In re Fonberg,(9th Cir. Jud. Council, Nov. 25, 2013), the Executive Committee of the Ninth Circuit Judicial Council held unconstitutional the U.S.Office of Personnel Management’s denial of health benefits to the same-sex domestic partner of a law clerk formerly employed by the Oregon federal district court.  The Executive Committee held that this discrimination against domestic partners, vis-a-vis married opposite-sex and married same-sex couples, violated the equal protection and due process rights of the law clerk. The San Francisco Chronicle reports on the decision. [Thanks to How Appealing for the lead.]

Mississippi School District Adopts New Policy To Settle Establishment Clause Suit

A judgment agreed to by the parties (full text) was entered last week in M.B. v. Rankin County School District, (SD MS, 11/22/2013). In the case, brought in federal court in Mississippi on behalf of a high school student, it was alleged that the district high school sponsored assemblies that promoted Christianity, and which students perceived as being mandatory. (See prior posting.) In settling the case, the school district adopted a new policy on religion in the schools and agreed to comply with it to avoid future Establishment Clause violations. The school district also agreed to pay $15,000 for plaintiffs' attorney fees. The American Humanist Association issued a press release announcing the settlement.

Supreme Court Grants Review In Two Contraceptive Coverage Mandate Cases

The U.S. Supreme Court today (11/26/2013) granted certiorari in two cases challenging the Affordable Care Act contraceptive coverage mandate, and consolidated them for appeal allotting one hour for oral argument. (Order List.) The cases are Sebelius v. Hobby Lobby Stores, Inc, (Docket No. 13-354) and Conestoga Wood Specialties v. Sebelius, (Docket No. 13-356).

In the Hobby Lobby case, an 8-judge en banc panel of the 10th Circuit Court (in six separate opinions spanning 165 pages) held that two related family-owned corporate businesses had demonstrated a likelihood of success on their claim that their free exercise rights were substantially burdened in violation of RFRA.  The corporations and their Christian owners objected to providing coverage for those contraceptives they regard as abortifacients.  Five of the 8 judges held that corporations have free exercise rights. Four of the 8 judges also concluded that the individual shareholders have standing to assert claims as well. (See prior posting.) From Becket Fund, here is a link to all the pleadings and briefs in the case since its inception.

In Conestoga Wood Specialties, the 3rd Circuit in a 2-1 decision denied a preliminary injunction sought by a family-owned business which, along with its Mennonite owners, objected to providing coverage for contraceptive methods that may terminate a fertilized embryo. The majority opinion held that "for-profit, secular corporations cannot engage in religious exercise," and that the conscience rights of the owners of a corporation do not pass through to the corporation. (See prior posting.) By a 7-5 vote, the 3rd Circuit denied an en banc rehearing. (See prior posting.) From Becket Fund, here is a link to the prior opinions and Supreme Court filings in the case.

CNN has additional coverage of the Supreme Court's action.

Israeli State Rabbinical Court Fines Mother For Refusing To Have Son Circumcised

Haaretz and  Failed Messiah report that in Israel, the Supreme Rabbinical Court on Sunday denied an appeal from an Oct. 29 decision of the Netanya Rabbinical Court (see Jewish Press, Nov. 7) imposing a fine of  NIS 500 ($140 US) per day on a woman who is refusing to have her one-year old son circumcised. The woman is in the midst of divorce proceedings with her husband who is seeking to force the circumcision. The boy was not circumcised at 8 days of age because of a medical condition, and subsequently, with her husband's agreement, the woman decided "she couldn't do that to my son." There is no circumcision requirement in Israeli civil law.  During the divorce proceedings the husband changed his mind. The appeals court judges apparently concluded, however, that the mother was now refusing to have the boy circumcised as a way to force a reconciliation with her husband. The judges also indicated their concern that allowing a Jewish Israeli woman to leave her son uncircumcised would encourage the anti-ritual circumcision movement in Europe and the United States. The mother argued in court that only Israel's civil family court has jurisdiction to order a circumcision, but the rabbinical court concluded that it also had jurisdiction of the dispute that arose in a divorce proceeding. The mother plans to appeal the decision to Israel's High Court of Justice.

State Employee Appealing Contraceptive Coverage Mandate Asks 8th Circuit For Injunction Pending Appeal

Last month in Wieland v.U.S. Department of Health and Human Services a Missouri federal district court dismissed on standing grounds a suit by a Missouri state employee and his wife who claim that the Affordable Care Act contraceptive coverage mandate forces them to violate their religious opposition to contraception, sterilization, and abortifacients. (See prior posting.) Yesterday, plaintiffs filed with the 8th Circuit Court of Appeals a motion for a preliminary injunction pending appeal and a 20-page memorandum (full text) in support of their motion.

Massachusetts Judge OK's State Funds To Restore Historic Church Windows

On Martha's Vineyard in Massachusetts yesterday, a state trial court judge denied a preliminary injunction, refusing to block the use of state Community Preservation Act funds to restore the stained glass windows at the historic Trinity Methodist Church.  The Vineyard Gazette reports that the court found the plaintiffs had failed to show a likelihood of success on the merits of their claim that the expenditure would violate the federal Establishment Clause, as well as the provision in the  Massachusetts constitution that bars the use of public money for any private religious or charitable undertaking.

FBI Releases 2012 Hate Crime Statistics

Yesterday the FBI released its annual report -- 2012 Hate Crime Statistics. The data show that in 2012, some 19% of the hate crime incidents (1,166 offenses) were motivated by religious bias. Of these, 59.7% were anti-Jewish: 12.8% were anti-Islamic; 6.8% were anti-Catholic; 2.9% were anti-Protestant, and 1% were anti-Atheism/Agnosticism; 9.2% were against unspecified or other religions. 7.6% involved bias against multiple religious groups.  The ADL yesterday issued a press release complaining that over 25% of the country's law enforcement agencies failed to provide the FBI with numbers for 2012 (almost 1500 fewer agencies than last year).  Thus it is unclear how much of a seeming 7% decline in hate crimes since 2011 is due to under reporting. Times of Israel reports on the data.

Court Passes On Discovery Requests In Case Challenging NYPD's Surveillance Of Muslims

In Raza v. City of New York, (ED NY, Nov. 22, 2013), a New York federal district court ruled on challenged discovery requests in a lawsuit by 3 individuals, 2 mosques and a non-profit who claim that the NYPD engaged in unconstitutional surveillance and investigation of Muslim leaders, organizations, businesses and mosques. (See prior posting.)  The court permitted discovery of documents specifically concerning plaintiffs, and information regarding the structure of the NYPD Intelligence Division. It also permitted

discovery regarding any NYPD policy or program involving the investigation of Muslims as a group based, in whole or part, on their religion. Without this discovery, Plaintiffs would be preemptively and irreparably prohibited from proving that Defendants’ alleged discriminatory intent was a motivating factor in the investigation and surveillance of Plaintiffs.

However the court denied plaintiffs' request for information on all NYPD investigations and surveillance of Muslims (whether or not based on their religion) and all investigations and surveillance of non-Muslims on the basis of their religious beliefs or practices. The court concluded that "these requests are, at best, of limited probative value or relevance and, at the same time, impossibly burdensome." Huffington Post yesterday reported on the decision.

Religion Clause Picked In ABA Journal's Blawg 100 Rankings

Click here to vote

I am pleased to announce that Religion Clause has been nominated by the ABA Journal for inclusion in its 7th Annual Blawg 100 rankings.  This is the fifth time in seven years that Religion Clause has made this prestigious list of the top 100 blogs directed at audiences interested in law and lawyers.  Now that the ABA Journal editors have narrowed the list to 100, the Journal asks you to vote for your favorite in each of its 13 categories. Religion Clause has been nominated in the "Niche" category. You may cast your votes in all categories at this link.  The ABA Journal requires a short registration process as part of the voting in order to prevent ballot box stuffing.  I hope you find Religion Clause a worthwhile enough read to vote for it.  Voting ends on Dec. 20.  Thanks to all who nominated Religion Clause for this honor.

Norwegian Foreign Minister Says Government Will Not Propose Ban On Ritual Circumcision

Earlier this month, Norway's health minister said that the government would introduce new legislation limiting or regulating ritual circumcision of boys under 18. (See prior posting.) However, The Foreigner reports that last Friday after the Simon Wiesenthal Center (SWC) warned that a ban would "stand in direct defiance of international laws protecting religious freedom," Norway's foreign minister gave assurances that a ban will not be proposed.  In a letter to the SWC, Minister of Foreign Affairs Børge Brende wrote: "the Norwegian Government recognizes the importance of ritual male circumcision for the Jewish community in Norway… [and] it will not propose a ban on ritual circumcision." In a press release today, SWC thanked Brende and said: "The Wiesenthal Center is ... particularly grateful that Foreign Minister Brende's letter also puts his government on record as 'committed to safeguarding freedom of religion as enshrined in international law'."

It is unclear whether Brende's letter still leaves open the possibility of regulation short of a complete ban. Last month, the Parliamentary Assembly of the Council of Europe in a resolution on children's physical integrity recommended that member countries "clearly define the medical, sanitary and other conditions to be ensured for practices which are today widely carried out in certain religious communities, such as the non-medically justified circumcision of young boys." (See prior posting.)