Happy New Year 2014!

Dear Religion Clause Readers:

Happy New Year! The past year was unusual in the extent to which two developments often seemed to dominate Religion Clause's coverage-- reactions to same-sex marriage and opposition to the Affordable Care Act contraceptive coverage mandate.  However, many other interesting and challenging religious liberty and church-state items also filled 2013.

As we enter 2014, I want to again thank all of you who read Religion Clause-- both long-time followers and those who have discovered the blog more recently. And thanks to all of you who send me leads or corrections. Your input is important in maintaining completeness and accuracy. I read all of your e-mails and comments and appreciate receiving them, even though time constraints often prevent me from replying individually. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want to be mentioned, I will be happy to honor that request if you let me know when sending me information.

Religion Clause's established format of neutrality, broad coverage and links to extensive primary source material has made it a widely-recognized authoritative source for keeping up on church-state and religious liberty developments around the world. Often Religion Clause carries a story well before mainstream media feature it. This year, for the fifth time in 7 years, Religion Clause was named by the ABA Journal as one of the 100 top blogs for a legal audience.

I am of course always considering whether any changes in format or coverage would make the blog more useful.  This year I changed the blog's template a bit-- to mixed reviews.  I have also begun to add subject tags to my posts to allow readers to find other blog entries covering similar subject matter.  I will not, however, have the time to retroactively add tags to the over 15,000 past blog posts that are in the Religion Clause database.  I welcome any comments or suggestions you have regarding Religion Clause. Feel free to post them as a comment to this blog entry, or to e-mail them to me at religionclause@gmail.com.

The Sitemeter shows that Religion Clause has attracted over 1,544,000 visits since I created the blog in 2005. Around 206,500 of these visits came in 2013. Sitemeter, however, is becoming a less and less reliable measure of readership.  First, the Sitemeter server which measures visits to Religion Clause suffered severe technical problems for at least two months this year. Also, a number of visits by automated bots are counted by Sitemeter. This overestimates real readers of the blog.  At the same time, readers are undercounted because of the increasing numbers who are following Religion Clause through Twitter, Facebook, Feedly, Blogger, FeedBlitz and similar services that make access more convenient. (Information about many of these alternatives are available in the blog's sidebar.)  Reading of posts, or of post headlines, through these routes is not measured by Sitemeter.  Only click-throughs are registered.

Ultimately, however, raw numbers are not as important as the quality of the audience and the usefulness of the blog to readers. On this score, I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, persons at governmental agencies, and others working professionally dealing with church-state relations and religious liberty concerns.  I encourage you to recommend Religion Clause to colleagues and friends who might find it of interest, and to link to specific posts and share them on social media.

Finally, I remind you that in addition to the postings, the Religion Clause sidebar contains links to a wealth of resources.

Best wishes for 2014!  It promises to be another year of interesting legal and political change.

Howard M. Friedman

EEOC Wins Settlements In 3 Religious Discrimination Cases

During the past two weeks, the EEOC announced the settlement of three religious discrimination lawsuits. Each involves damages for the individual victim(s) as well as changes in the company's anti-discrimination policies and/or its training for managers and employees:

• McDonald's Restaurants of California agreed to pay $50,000 and reinforce training in order to settle charges that it refused to permit a Muslim employee, a crew trainer, to grow a beard for religious reasons. The refusal led to his constructive discharge. (Dec. 20 EEOC press release.) 
• Two companies which operate a chain of Kentucky Fried Chicken restaurants in North Carolina agreed to pay $40,000, adopt a formal religious accommodation policy and conduct annual training to settle charges that it fired a female Pentecostal employee after she refused for religious reasons to comply with dress code requirements that she wear pants. (Dec. 23 EEOC press release.)
• A federal district court entered a consent decree settling charges that Dynamic Medical Services, a Florida medical and chiropractic services provider, required a number of its employees to spend at least half their work days in courses that involved  Scientology religious practices, instructed employees to attend courses at the Church of  Scientology, and told one employee to undergo a Scientology "audit." Two employees were terminated when they refused to participate.  The company agreed to pay $170,000 in damages to 8 employees or former employees, and in the future to accommodate employees who object on religious grounds to participating in religious courses or other religious work-related activities. (Dec. 23 EEOC press release.)

Pakistani Court Imposes Death Sentence For Blasphemy On 2 Who "Saw God"

In Multan, Pakistan on Saturday, a trial court judge sentenced two men to death on blasphemy charges. According to Sunday's Express Tribune, 34-year old Riaz Ahmed and 38-year old Ijaz Ahmed in 2011 claimed they had seen God and invited others to join them in their union with God through Chaman Sarkar. The judge also fined each of the defendants the equivalent of $946 (US).

Nonsectarian Council Invocations O.K. Under California Constitution

According to the Eureka (CA) Times-Standard, a California state Superior Court judge has rejected a broad facial state constitutional challenge to all prayers at city council meetings.  In Beaton v. City of Eureka, (Humboldt Cty. Super. Ct., Dec. 24, 2013) the court held that the city's policy allowing voluntary, nonsectarian invocations does not violate the California Constitution. However, the court held that plaintiff may challenge particular invocations as violations of the Establishment, No Preference or No Aid clause of the California Constitution.

New Poll: American's Beliefs On Evolution Differ Significantly Based On Politics, Religion

The Pew Research Center yesterday released a new poll titled Public's View on Human Evolution. The U.S. adults surveyed were asked whether, in their view, humans and other living things have evolved over time, or instead have existed in their present form since the beginning of time.  Overall, 60% said that living things have evolved, while 33% said they have always existed in their present form. However significant percentage differences were reflected in different subgroups. 64% of White Evangelical Protestants, but only 15% of White Mainline Protestants, believe that evolution did not occur. Also, 48% of Republicans, but only 27% of Democrats and 28% of Independents believe that living things have always existed in their present form.  In 2009, only 39% of Republicans believed this, while 30% of Democrats did. Those who believed that evolution had occurred were also asked whether they believe that a Supreme Being guided evolution. Overall, 24% said that was the case, again with differences between subgroups.

First Woman On Pakistan's Shariat Court Sworn In

Pakistan's Daily Times reports that the first female judge to serve on Pakistan's Federal Shariat Court was sworn in yesterday. The new Muslim Judge is 56-year old Ashraf Jehan who was previously serving as an additional judge at the Sindh high court. Under Chapter 3A of Pakistan's Constitution, the Federal Shariat Court has jurisdiction to decide whether any federal or provincial law is inconsistent with Sharia, and thus invalid.  The court may also review criminal court decisions involving Hudood Ordinances. Shariat Court judges are appointed by the President of Pakistan.

Obama's Sparse Attendance At Church Services Analyzed

Yesterday's New York Times carries an analysis of President Obama's personal faith and church service attendance. Triggered by the Obama family's decision last week not to attend church services on Christmas, the article reports:

Mr. Obama has gone to church 18 times during his nearly five years in the White House, according to Mark Knoller of CBS News, an unofficial White House historian, while his predecessor, Mr. Bush, attended 120 times during his eight years in office.

But those numbers do not reflect the depth of Mr. Obama’s faith, said Joshua DuBois, the former head of the White House Office of Faith-Based and Neighborhood Partnerships. “President Obama is a committed Christian,” said Mr. DuBois, who sends the president a daily devotional by email, and is the author of “The President’s Devotional.”

Maldives Parliament Sends Penal Code Back To Committee Over Concerns About Consistency With Sharia Law

In the Maldives yesterday, Parliament rejected a draft of a new Penal Code that has been under review by Parliamentary committees for seven years.  Minivan News reports that the proposed law-- the first draft of which was prepared by University of Pennsylvania law professor Paul Robinson-- was sent back to committee for more revisions. Many of the opponents of the current draft say that it does not adequately reflect Sharia law. In particular they are concerned that it does not reflect certain fixed punishments required by Islamic law. More broadly, another lawmaker reflected the view of some scholars that it is blasphemous to "rephrase divine laws in Islamic Sharia into separate articles in a law." The Maldives claims to be 100% Muslim. Other critics were concerned about the short time (3 days) the bill was open for amendments from the floor of Parliament.  A Dec. 24 Minivan News article has further background on the proposed Penal Code and links to the two volumes of text and commentary.

New Bibliography and Recent Articles of Interest

The AALS Section on Law and Religion has issued its Dec. 2013 Newsletter which includes a comprehensive bibliography of relevant books and articles published during 2013, as well as a list of blogs relating to law and religion. The articles and blogs are all hyperlinked.

From SSRN:

• Chee Ying Kuek & Eng Siang Tay, Religious Conversions and the Conflicts between Civil and Islamic Law of Inheritance in Malaysia, (Malayan Law Journal, 2013).
• James Q. Whitman, The Transition to Modernity, (Oxford Handbook of Criminal Law (M. Dubber and T. Hörnle, eds.), Forthcoming).
• Daniel Marc Weinstock, Conscientious Refusal and Health Professionals: Does Religion Make a Difference?, (Bioethics, Vol. 28, Issue 1, pp. 8-15, 2014).
• Marc Greendorfer, Blurring Lines between Churches and Secular Corporations: The Compelling Case of the Benefit Corporation’s Right to the Free Exercise of Religion, (December 27, 2013).
• Deborah A. Widiss,  Leveling Up after DOMA, Indiana Law Journal, Vol. 89, 2014, Forthcoming).

Court Rejects Challenge To University's Severing of Ties With Chabad House For Alcohol Violations

In Lubavitch-Chabad of Illinois, Inc. v. Northwestern University, (ND IL, Dec. 19, 2013), an Illinois federal district court upheld Northwestern University's decision to end its official recognition of a Jewish student religious center operated by Chabad so long as Rabbi Dov Klein was Chabad's representative on campus.  The University ended its affiliation with the Chabad House because Rabbi Klein had repeatedly served alcoholic beverages there to underage students in connection with religious meals and celebrations.  The court rejected claims that the University's actions violated 42 USC Sec. 1981 (racial discrimination in the making of contracts) and Title VI of the 1964 Civil Rights Act because the complaint alleged religious, not racial or ethnic, discrimination.  The court also concluded that plaintiffs had not demonstrated that any religious or ethnic discrimination was involved in the disaffiliation. The Daily Northwestern, reporting on the decision, says that plaintiffs plan to appeal. Failed Messiah blog also reports on the decision.

Colorado Federal Court: Contraceptive Mandate Accommodation Imposes No Substantial Burden On ERISA-Exempt Church Plans

In Little Sisters of the Poor Home for the Aged v. Sebelius, (D CO, Dec. 27, 2013), a Colorado federal district court denied a preliminary injunction to two non-profit homes controlled by Little Sisters of the Poor which sued to challenge the contraceptive coverage mandate accommodation under the Affordable Care Act. The homes provide health coverage to their employees through a self-insured "church plan" administered by a Catholic-affiliated non-profit corporation.  The court held that no substantial burden was placed on plaintiffs' religious exercise because "church plans" are exempt from ERISA under which the mandate accommodation is enforced. Little Sisters of the Poor only needs to fill out the self-certification form and provide it to its third-party administrator. According to the court:

It is undisputed that Christian Brothers Services is the third party administrator for the Trust.... Christian Brothers Services does not currently provide the Trust’s beneficiaries with access to sterilization, contraception, and abortion-inducing drugs and services, and it does not intend to do so in the future.... Defendants concede that they have no regulatory authority to require Little Sisters or the Trust to contract with a different third party administrator.... Thus, the Final Rules do not require Little Sisters or the Trust to designate, authorize, or create a provider-insured relationship with any third party that will provide their employees with access to contraception, sterilization, or abortifacients.

The Baltimore Sun reported yesterday that plaintiffs immediately filed an appeal and are seeking an injunction to block any fines while the appeal is pending.

Recent Prisoner Free Exercise Cases

In Jenkins v. Urbina, 2013 U.S. Dist. LEXIS 169072 (ED CA, Nov. 22, 2013), a California federal magistrate judge dismissed a claim by an inmate that his free exercise and RLUIPA rights were violated when a correctional officer took property that included Native American items such as beads, sewing needles, choker, and feathers, from plaintiff's cell.

In Strickland v. Texas Department of Criminal Justice, 2013 U.S. Dist. LEXIS 179687 (SD TX, Dec. 23, 2013), a Texas federal district court permitted a Muslim inmate to proceed with his claim for declaratory and injunctive relief against one defendant. Plaintiff complains that he has been denied halal meals or the kosher diet provided to Jewish inmates.

In Strong v. Livingston, 2013 U.S. Dist. LEXIS 179009 (SD TX, Dec. 20, 2013), a Texas federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 179856, Oct. 17, 2013) and granted a preliminary injunction to allow a Muslim inmate to wear a one-quarter inch beard.

In Williams v. Fluaitt, 2013 U.S. Dist. LEXIS 179999 (ED WA, Dec. 23, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 180003, Nov. 4, 2013) and dismissed a Muslim inmate's complaint that his rights were violated when he was not given special Ramadan meals in 2011 because he failed to comply with the sign-up procedure to participate.

In Rupe v. Beard, 2013 U.S. Dist. LEXIS 180415 (ED CA, Dec. 23, 2013), a California federal district court dismissed a Druid inmate's complaints that prison authorities failed to provide facilities for Druid worship such as a sweathouse, fire pit and food for Druid feasts; did not allow Druids on space provided for Pagan worship and instead required Durids to worship in the general population yard, and did not provide Pagan chaplains.

Decisions In Non-Profit Challenges To Contraceptive Mandate Accommodation Continue To Be Issued

As health insurance decisions for the new year need to be made, decisions continue to be handed down by federal district courts in cases brought by religious non-profits challenging the adequacy of the accommodation created by the final contraceptive coverage rules under the Affordable Care Act.

In Michigan Catholic Conference v. Sebelius, (WD MI, Dec. 27, 2013), a Michigan federal district court refused to grant a preliminary injunction in a suit by Michigan Catholic Conference and Catholic Family Services of Kalamazoo. The court rejected RFRA, free exercise, free speech, Establishment Clause and "Weldon Amendment" challenges.  On the crucial issue of whether, under RFRA, the rule impose a substantial burden on plaintiffs' free exercise of religion, the court said in part:

although Plaintiffs assert that the accommodation requires them to participate in a scheme to provide contraceptives, in fact, it just does the opposite. It provides a mechanism for employers with religious objections to contraceptives, like Catholic Charities, to opt out of that scheme. This mechanism simply requires Plaintiffs to state that they choose to opt out based on their religious beliefs. The fact that the scheme will continue to operate without them may offend Plaintiffs’ religious beliefs, but it does not substantially burden the exercise of those beliefs.

In Diocese of Fort Wayne-South Bend, Inc. v. Sebelius, (MD IN, Dec. 27, 2013), an Indiana federal district court granted a preliminary injunction, finding that the Diocese affiliated charitable, educational and health care affiliates are reasonably likely to succeed on the merits of their RFRA challenge to the contraceptive coverage rules. The court said in part:

The plaintiffs have established that the accommodation compels them to facilitate and serve as the conduit through which objectionable contraceptive products and services are ultimately provided to their employees, in violation of their unquestionably sincerely held religious beliefs. While it is true that prior to the ACA's enactment, plaintiffs had notified their insurers/TPAs that objectionable contraceptive services were to be excluded from their health plans, never before had that notification triggered the provision of the services, nor were plaintiffs designating another to provide the services.

The court held that even though the Diocese itself is an exempt religious employer, it too has been burdened by the rule:

the Diocese is forced to modify its behavior and incur substantial costs to stay grandfathered under the ACA, or else it will be compelled to violate its religious beliefs by having Catholic Charities’ employees provided with a plan that covers objectionable contraceptive services....

In a separate decision using similar reasoning, the same Indiana federal district court judge granted a preliminary injunction to two Christian colleges-- Indiana-based Grace College and Seminary, and California-based Biola University-- shielding their employee and student health care plans from the arrangement that would have provided coverage directly from insurers or third-party administrators.  In Grace Schools v. Sebelius, (MD IN, Dec. 27, 2013) the court concluded that the mandate and the accommodation impose a substantial burden on plaintiffs' religious exercise.

DC Circuit Denies Preliminary Injunction To Non-Liturgical Navy Chaplains Challenging Promotion Procedures

In the long-running challenge to Navy procedures for promoting members of the Chaplain Corps, the D.C. Circuit Court of Appeals yesterday affirmed the district court's denial of a preliminary injunction.  In In re: Navy Chaplaincy, (DC Cir., Dec. 27, 2013), the court ruled against  a group of current and former Navy chaplains and two chaplain-endorsing agencies who claim that the makeup and voting procedures of the Navy's selection boards create a preference for Catholics and liturgical Protestants over various non-liturgical denominations. The court rejected plaintiffs' equal protection claims, agreeing with the district court that plaintiffs' had not shown direct evidence of discriminatory intent in the adoption of the challenged policies that are neutral on their face, nor had they shown sufficiently disparate impact to infer unconstitutional discriminatory intent. The court also rejected plaintiffs' Establishment Clause challenge, finding that a reasonable observer reviewing the data on promotions would not perceive a message of governmental endorsement of liturgical denominations.

3 Religiously Affiliated Schools Win Texas Federal Court Injunction Against Contraceptive Mandate

Today in  East Texas Baptist University v. Sebelius, (SD TX, Dec. 27, 2013), a Texas federal district court enjoined the government from enforcing the Affordable Care Act contraceptive coverage mandate against two Baptist universities and a Presbyterian seminary.  The court concluded that under RFRA the contraceptive mandate accommodation calling for objecting religious non-profits to complete a self-certification form imposes a substantial burden on the schools' free exercise rights. The contraceptive coverage that the schools' employees then receive directly from the insurance company or policy's third-party administrator is causally connected to acts the schools have performed:

It is the insurance plan that the religious-organization employer put into place, the issuer or TPA the employer contracted with, and the self-certification form the employer completes and provides the issuer or TPA, that enable the employees to obtain the free access to the contraceptive devices that the plaintiffs find religiously offensive.

Becket Fund issued a press release announcing the decision.

Preliminary Injunction Denied In Contraceptive Mandate Challenge By Nashville Diocese Affiliates

In Catholic Diocese of Nashville v. Sebelius, (MD TN, Dec. 26, 2013), a Tennessee federal district court refused to grant a preliminary injunction in a lawsuit brought by the Diocese of Nashville, its affiliated Catholic Charities, and several other affiliated organizations including Aquinas College challenging the Affordable Care Act contraceptive coverage mandate.  The court held that plaintiffs had not shown a likelihood of success on their RFRA, free exercise, free speech and Establishment Clause claims. Finding that the accommodation for religious non-profits does not impose a substantial burden under RFRA, the court said that the burden imposed by the self-certification process required to trigger the accommodation "is too attenuated and speculative to be substantial."  It explained:

Plaintiffs bear no costs for the services and nothing is provided unless a third party employee independently requests the services from yet another third party – the insurer. It is only the independent actions of third parties that result in anyone obtaining contraceptive services.

Tom Monaghan Non-Profits Sue Challenging Contraceptive Mandate

A press release from the Thomas More Law Center reports that on Dec. 20  a new lawsuit challenging the Affordable Care Act contraceptive coverage mandate was filed on behalf of five non-profit corporations, all founded by Catholic philanthropist and Domino Pizza founder Tom Monaghan. The entities suing are the Ave Maria Foundation, Ave Maria Communications, Domino’s Farms Petting Farm, Rhodora J. Donahue Academy Inc., and the Thomas More Law Center. The complaint in Ave Maria Foundation v. Sebelius, (ED MI, filed 12/20/2013) was filed after plaintiffs were unsuccessful in their attempts to join in either of two other similar pending lawsuits.  On Dec. 23, shortly after bringing the new lawsuit, plaintiffs filed an Emergency Motion Motion for a Temporary Restraining Order and a Brief In Support (full text). The brief asserts that all of the plaintiffs" are nonprofit corporations that were founded upon, adhere to, and strive to further, the teachings of the Roman Catholic Church." The Thomas More Law Center, one of the plaintiffs as well as counsel for all the plaintiffs, is a non-profit public interest law firm based in Ann Arbor, Michigan that has filed numerous lawsuits defending religious freedom and pro-life positions.

Conviction of Monsignor For Covering Up Priest's Abuse Is Reversed

A Pennsylvania appellate court yesterday reversed the 2012 conviction of Msgr. William J. Lynn who was the first U.S. priest criminally convicted of covering up sexual molestation of minors by another priest. (See prior posting.) In Commonwealth of Pennsylvania v. Lynn, (PA Super. Ct., Dec. 26, 2013), a unanimous 3-judge panel held that the trial court had misinterpreted the Endangering Welfare of a Child statute under which Lynn was sentenced to a term of 3-6 years. (The statute was later amended.) The appellate court held that the statute under which Lynn was convicted only applied to a person who is directly in charge of a child, not to someone supervising the person in charge. Also there was insufficient evidence to convict Lynn as an accomplice to the priest's violation of the statute. According to AP, prosecutors say they will appeal yesterday's decision and Lynn cannot be released until the appeals process is completed. The appeals court yesterday denied Lynn's motion for bail pending appeal, leaving that to the trial court. (Docket Sheet setting out order.)

UPDATE: On Dec. 30, the trial court set bail for Msgr. Lynn at $250,000.  He will also be subject to electronic monitoring and must surrender his passport. (NBC 10 Philadelphia).

UPDATE 2: The Dec. 31 Philadelphia Inquirer reports that the Archdiocese of Philadelphia has posted $25,000 (apparently the amount needed for a bail bond) for the release of Msgr. Lynn.  The district attorney has strongly criticized the Archdiocese for doing so.

Top 10 Church-State and Religious Liberty Developments in 2013

As the new year approaches, here is my annual attempt at picking the most important developments of the past year.  My nominations for the 2013 Top Ten Church-State and Religious Liberty Developments are:

1. The U.S. Supreme Court in United States v. Windsor strikes down Section 3 of the Defense of Marriage Act in an opinion by Justice Kennedy that triggers judicial and legislative expansion of marriage equality to a total of 18 states and the District of Columbia by the end of 2013.

2.  Judicial challenges by Catholic- and conservative Christian-owned small businesses to the Affordable Care Act contraceptive coverage mandate generate an intense legal debate over whether corporations have religious exercise rights.  The U.S. Supreme Court grants certiorari in two cases raising the issue.

3. A decision by the New Mexico Supreme Court in Elane Photography requires a commercial photography business to serve same-sex couples on the same basis as opposite-sex couple, despite the photographer's religious objections to same-sex marriage. A preliminary Colorado administrative decision takes the same approach on wedding cakes. In a related development, Britain's Supreme Court holds that its anti-discrimination laws require Christian hotel owners to rent rooms to same-sex couples. 

4. U.S. Supreme Court hears oral arguments in Town of Greece case.  The Court will decide on the constitutionality of opening city council meetings with sectarian prayers.

5. Numerous challenges by religiously-affiliated colleges and social service agencies to a compromise that was intended to accommodate their objections to the Affordable Care Act contraceptive coverage mandate raise the issue of how to define a "substantial burden" on religious exercise under RFRA. Courts have reached differing conclusions.

6. European Court of Human Rights decides four cases from Britain on religious accommodation of Christian employee' religious beliefs. Decisions call for a case-by-case balancing approach.

7. Egypt continues to struggle with the future role of the Muslim Brotherhood (which the government now brands a "terrorist" group) and with what its constitution should say about the role of religion.

8. Federal district court strikes down most of Utah's anti-polygamy law.

9. A variety of recent cases and legislative initiatives in the U.S. and elsewhere raise the question of what qualifies as a "religion"-- Scientology, yoga, Humanism, Naturism.

10. Federal district court holds Internal Revenue Code parsonage allowance provisions violate Establishment Clause.

 I welcome reader comments taking issue with my choices. You may be interested in the somewhat different picks by the Religion Newswriters Association for its 2013 Top 10 Religion News Stories.

Japan's Prime Minister Angers China, South Korea By Visiting Controversial Shinto War Shrine

Today Japan's Prime Minister Shinzo Abe angered China and South Korea by visiting the Yasukuni Shrine, a Shinto shrine to the war dead including Japanese leaders who were convicted as war criminals at the end of World War II.  Reuters reports that today's visit was part of Abe's attempt to restore Japan's pride in its past and rewrite its wartime history. His visit, including a televised motorcade to the shrine, threatens to exacerbate longstanding strains in relations with China and South Korea.  Abe said however:

There is criticism based on the misconception that this is an act to worship war criminals, but I visited Yasukuni Shrine to report to the souls of the war dead on the progress made this year and to convey my resolve that people never again suffer the horrors of war.