Egyptian President Visits Coptic Pope To Extend Greetings For Orthodox Christmas, Celebrated Today

Today, Orthodox Christians, including the Coptic Christian community in Egypt, celebrate Christmas. (As explained by Al Ahram, the difference in dates from Western Christianity results from continued use of the Julian calendar by Orthodox Christians.) According to Catholic News Service, on Sunday Egypt's interim President Adly Mansour visited Coptic Pope Tawadros II at the papal seat in St. Mark's Coptic Orthodox Cathedral in Cairo to personally extend Christmas greetings and appreciation to the Coptic community which has continued to suffer attacks since the military takeover of the government. This is the first visit of an Egyptian president to the Cathedral in over 40 years.

Supreme Court Grants Stay Blocking Further Same-Sex Marriages In Utah While Appeal Is Pending

The U.S. Supreme Court this morning issued a stay (full text)  pending completion of a pending expedited appeal to the 10th Circuit in Herbert v. Kitchen, (Docket No. 13A687). In the case, a Utah federal district court issued an injunction allowing same-sex marriages in Utah. (See prior posting.) The application for a stay was initially made to Justice Sotomayor (see prior posting) who referred it to the full court. SCOTUSblog has more on the Supreme Court's action.

Commentary: Little Sisters of the Poor Case Generating Heated Political Debate

The New Year's Eve temporary injunction issued by Justice Sonia Sotomayor to prevent immediate enforcement of the ACA contraceptive coverage mandate compromise against the Little Sisters of the Poor has quickly generated extensive debate.  At one level, the case itself turns on the kind of legal technicalities that usually cause the non-lawyer's eyes to glaze over--the exact wording of the fine print on a government form; the difference between self-insured health plans administered by third party administrators and group health insurance plans offered to employees through insurance companies; and the exemption under ERISA for group health plans that qualify as "church plans."  Yet despite this, the case is becoming the symbol for a much broader, and to some extent uglier, political debate.  Here are two essays from the blogosphere that illustrate the political dimensions that this free exercise issue has taken on:

From American Thinker yesterday, Lloyd Marcus posts an essay titled Will King Obama Throw Nuns into the Lion's Den?, saying in part:

We are witnessing a modern-day version of King Darius ordering that Daniel be thrown into the lion's den for refusing to deny his faith. Displaying deceit characteristic of our Liar-in-Chief, Obama's DOJ have offered the Little Sisters a serpent disguised as an olive branch.

From All Voices yesterday, John Thomas Didymus writes in a post titled Does filling out a contraception mandate exemption form violate Catholic religious rights?:

When properly understood, the Little Sisters’ argument is cynical hairsplitting with the intention of picking a fight with and prolonging confrontation with a government they have identified as an ideological foe.... The confrontational attitude of the Little Sisters illustrates the dog-in-the-manger attitude common to religious ideologues through which they exercise socially disruptive influence. The religious dog-in-the-manger attitude can be summarized as: "If our religion says we can't have it, and then no one should have it".... An extreme form of this pattern of socially disruptive religious chauvinism is expressed by Nigeria's Boko Haram.

Of course, much of the debate is calmer than these examples, but in the highly charged atmosphere surrounding all aspects of the Affordable Care Act, louder voices tend to drown out other more nuanced analyses.

Recent Articles of Interest

From SSRN:

• Richard Schragger & Micah Schwartzman, Some Realism about Corporate Rights, (Virginia Public Law and Legal Theory Research Paper No. 2013-43 (2013)).
• Rafael Palomino, Manual breve de Derecho eclesiástico del Estado (2ª edición) (Spanish Law and Religion in a Nutshell (2nd Edition)), (Europan and Comparative Law Books, Forthcoming).
• Nick Reaves, Uniquely Qualified: The Constitutionality of Crisis Chaplaincy Programs, (December 17, 2013).
• Samuel H. Pillsbury, Questioning Retribution, Valuing Humility, (Ohio State Journal of Criminal Law, Vol. 11, No. 1, 2013).
• Aaron R. Petty, The Concept of 'Religion' in the Supreme Court of Israel, (January 3, 2014).
• Seth Barrett Tillman, Purim & My Bangladeshi Friend, (Gadfly: Culture that Matters, February 11, 2013).

From SmartCILP:

• Evelyn M. Aswad, To Ban or Not To Ban Blasphemous Videos, 44 Georgetown Journal of International Law 1313-1328 (2013).
• Mark Strasser, Innocents Beware: On Religion Clause Jurisprudence and the Negligent Retention or Hiring of Clergy, 22 William & Mary Bill of Rights Journal 177-210 (2013).
• Symposium. State-Sponsored Religious Displays in the U.S. and Europe. Introduction by Mark L. Movsesian; articles by Silvio Ferrari, Thomas C. Berg, Monica Lugato and Hon. Diarmuid F. O'Scannlain. 52 Journal of Catholic Legal Studies 1-92 (2013).

Recent Prisoner Free Exercise Cases

In Merrick v. Inmate Legal Services, 2013 U.S. Dist. LEXIS 181120 (D AZ, Dec. 30, 2013), an Arizona federal district court dismissed an inmate's complaint that he was denied unmonitored and unrecorded clergy calls with a specific pastor he preferred.

In Morton v. Eastern Regional Jail, 2013 U.S. Dist. LEXIS 181186 (ND WV, Dec. 30, 2013), a West Virginia federal district court adopted in part a magistrate's recommendations (2013 U.S. Dist. LEXIS 181185, June 14, 2013) and dismissed a Muslim inmate's claims against the named defendants that the jail violated his rights by failing to provide Islamic worship services, religious study classes, prayer materials, or staff.

In Goodwin v. Palmer, 2013 U.S. Dist. LEXIS 181529 (N.D. Iowa Dec. 31, 2013), an Iowa federal district court permitted a civil detainee to proceed with his complaint that his free exercise rights are being infringed by denial of access to a minister unless he signs a DHS authorization form.

In Strong v. Livingston, 2013 U.S. Dist. LEXIS 181671 (SD TX, Dec. 31, 2013), and in Hickman-Bey v. Livingston, 2013 U.S. Dist. LEXIS 181682 (SD TX, Dec. 31, 2013), a Texas federal district court denied stays pending appeal of previous preliminary injunctions allowing plaintiff Muslim inmates to wear a one-quarter inch beards.

In Ali v. Wingert, 2014 U.S. Dist. LEXIS 204 (D CO, Jan. 2, 2014), a Colorado federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 182081, Nov. 19, 2013) and dismissed a Muslim inmate's complaint that he was required to use his commitment name along with his religious name on his mail.

Texas District Court Grants Permanent Injunction In "Church Plan" Challenge To Contraceptive Mandate Compromise

In Catholic Diocese of Beaumont v. Sebelius, (ED TX, Jan. 2, 2014), a Texas federal district court issued a permanent injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate compromise against the Catholic Diocese of Beaumont and Catholic Charities of Southeast Texas.  The court rejected the government's argument that no substantial burden is present here because of the special exemption of "church plans" from ERISA, on which enforcement against third-party administrators is based. The court said in part:

Requiring the head of a religious organization to sign a putatively correct statement of religious belief, which the Government has defined to authorize a third party to take an action that is contrary to those religious beliefs, imposes a substantial burden on the free exercise of religion. That conclusion is not changed by the Government’s argument that, at present, it does not have the power to compel the third party to act.

Two House Members Object To VA Hospital Christmas Celebration Policies

The Marine Times reported yesterday that two members of Congress have written VA Secretary Eric Shinseki about incidents at three VA hospitals involving Christmas celebration policy. At a Texas VA hospital, a group of schoolchildren were not allowed to deliver handwritten cards with greetings such as "Merry Christmas" and "God Bless You."  VA officials say this involved a miscommunication, and that Christmas cards are permitted for patients who celebrate Christmas.  At an Alabama hospital, goodie bags with Christmas cards were allowed only to the extent they met the hospital's requirement that only secular gifts can be distributed broadly to veterans.  Finally, at a Georgia hospital, carolers were allowed to sing at public performances only from an approved list of songs.  Officials said that more private space was available for carolers to sing more religious songs for veterans who choose to attend. Alabama Rep. Martha Roby, one of those complaining wrote in part that she was concerned about "the culture of bureaucracy at the VA [that] would encourage facility administrators to err on the side of suppressing religious expression and discouraging acts of kindness toward veterans." Rep. Jeff Miller, House Veterans' Affairs Committee chairman,  wrote to Shinseki arguing that since Christmas is a federal holiday, VA may be violating veterans' rights by barring them from celebrating it.

Tunisia's National Assembly Approves Constitutional Provision Making Islam Country's Religion

Tunisia's National Assembly began voting Friday, article-by-article, on the country's proposed new constitution. (AFP 1/3). On Saturday, by a vote of 146-3 it adopted Article I which reads:  "Tunisia is a free, independent and sovereign state. Islam is its religion, Arabic is its language, and it is a republic. It is not possible to amend this article." The Assembly rejected proposed amendments that would have provided that Islam or the Qur'an would be the principal source of legislation.  The provision as adopted is a compromise between the Islamist Ennahda party and secularists. (AFP 1/4.) The constitution must be adopted by 2/3 of the Assembly's 217 members, or else submitted for a referendum.

Losing NYC Political Candidate Sues Winner Over Mural Allegedly Intended To Act As A Curse

In an unusual lawsuit filed Thursday, Gwen Goodwin, a losing candidate in the September 10 Democratic primary for New York City Council, is seeking $1 million in damages from her successful rival, Melissa Mark-Viverito, and from the landlord of the apartment building in which Goodwin lives. The suit stems from a 5-story tall mural described (and pictured) by today's New York Post as a "bodiless rooster atop wooden poles" which was placed on the apartment building wall and extends to the window of Goodwin's 5th floor apartment. The mural would have been seen by those in the neighborhood from a Caribbean culture as a black magic curse or death threat. The mural, unveiled in a Sept. 1 ceremony, was part of Los Muros Hablan (“The Walls Speak”), a project headed by Mark-Viverito to celebrate Latino culture through murals. The complaint (full text) in Goodwin v. Mark-Viverito, (NY County Sup. Ct., filed 1/2/2014), claims that the mural was deliberately planned by Mark-Viverito and Goodwin's landlord to inflict emotional distress on Goodwin. (Goodwin, who lives in a rent-stabilized apartment, has been sued a number of times by her landlord.) She claims that the mural distracted her and caused her to lose energy which disrupted her performance in the primary.

More Developments In Non-Profit Challenges To Contraceptive Mandate

As previously reported, on New Years Eve, U.S. Supreme Court Justice Sonia Sotomayor granted Little Sisters of the Poor an emergency temporary injunction blocking enforcement against them of the Affordable Care Act contraceptive coverage accommodation for religious non-profits. The federal government was ordered to file a response by 10:00 AM today.  Here is the Solicitor General's 37-page response filed today in Little Sisters of the Poor Home for the Aged v. Sebelius,  (Docket No. 13A691). As explained by today's Politico, Sotomayor must now decide whether to keep the temporary injunction in place, lift it, or refer the matter to all the Justices for them to decide to take one of those steps.  The Justices could also grant full Supreme Court review in the case even though there has not yet been a Court of Appeals decision.

In another development, on New Years eve the U.S. District Court for the Eastern District of Michigan granted a 14-day temporary restraining order (full text) in Ave Maria Foundation v. Sebelius. The order temporarily bars enforcement of the contraceptive coverage mandate against Ave Maria Foundation, Ave Maria Radio, Domino's Farms Petting Farm, Rhodora J. Donahue Academy, and Thomas More Law Center.  (TMLC Jan. 2 press release.) A hearing is scheduled Jan. 8 on whether to convert the TRO to a preliminary injunction.

IRS Issues New Procedures To Reinstate Lost Tax-Exempt Status

KPMG Tax News Flash reports that yesterday the Internal Revenue Service issued an advance copy of Rev. Proc. 2014-11 which provides procedures for reinstating the tax-exempt status of non-profit organizations that have had their tax-exempt status automatically revoked for failure to file required Annual Returns or notices for three consecutive years. The new Revenue Procedure modifies and supersedes Notice 2011-44.

In Malaysia, Battle Over Christian Use of "Allah" Intensifies

As previously reported, last October Malaysia's Court of Appeal upheld a licensing condition imposed by the Minister of Security prohibiting the Catholic newspaper The Herald from using the word "Allah" in its Malay language edition to refer to God. The Federal Court has scheduled arguments for February 24 on the Catholic Church's application for leave to appeal the decision. (Malaysia Chronicle.) Meanwhile though the dispute intensifies.  According to yesterday's Malay Mail, The Herald's editor Father Lawrence Andrew has set off a firestorm of criticism by insisting that Catholic Churches in the state of Selangor will continue to use the term "Allah" in their Masses. His statement has led to calls for contempt of court proceedings, and even suggestions that Andrew has committed treason against the Sultan's decree banning non-Muslims from using the word "Allah."

Reuters and The Hindu report that the situation has been further exacerbated. Officials from the Selangor state Islamic Religious Department, aided by police, yesterday raided the Bible Society of Malaysia and seized 321 copies of the Bible that use the term "Allah". The Bible Society's president and its manager were briefly detained and then released on bail.  They say they are allowed to distribute the Bibles to Christians in West Malaysia (which includes Selangor) so long as the Bible has a cross and the words "Christian publication" on the cover.  The general secretary of the Council of Churches Malaysia said that Islamic authorities are not legally permitted to enter non-Muslim religious establishments to inspect or search them.

Notre Dame Complies With Affordable Care Act Contraceptive Mandate Accommodation

In the flurry of decisions this week in suits by religious non-profits seeking protection from the Affordable Care Act contraceptive coverage accommodation, one institution that failed to obtain injunctive relief was Notre Dame University. (See prior posting.) According to WNDU, on Tuesday the University issued a statement saying:

Having been denied a stay, Notre Dame is advising employees that pursuant to the Affordable Care Act, our third party administrator is required to notify plan participants of coverage provided under its contraceptives payment program.

As part of an ongoing legal action, however, the program may be terminated once the university's lawsuit on religious liberty grounds against the HHS mandate has worked its way through the courts.

Meanwhile, at Balkinization blog, Marty Lederman has an excellent backgrounder on the non-profit contraceptive mandate cases, as well as this backgrounder on whether or not the broader mandate really involves a requirement to cover "abortifacients."

Urging Religious Resolution of Altercation Violated Ban or Attempting To Dissuade Witness From Testifying

In People v. Wahidi, (CA App., Dec. 30, 2013), a California state appeals court upheld the conviction of defendant Abdullah Wahidi  for violating California Penal Code Sec. 136.1(a)(2) which prohibits any person from "[k]nowingly and maliciously attempt[ing] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry...."  Wahidi had been in an altercation with Farahan Khan and three of Khan's friends. He was charged with assault, vandalism and battery. The day before his preliminary hearing, Wahidi approached Khan following prayer services at Khan’s mosque to urge him, instead of testifying at the preliminary hearing, to settle the matter informally using the Muslim custom of resolving disputes through discussions between affected families. Wahidi said to Khan:

[W]e’re both Muslims. That if we could just settle this outside the court in a more Muslim manner family to family, have our families meet and settle this out of court and not take this to court.

On the basis of that conversation, he was also charged with attempting to dissuade a witness from testifying. The court held that this conversation meets the "knowing and malicious" standard of the statute. California Penal Code Sec. 136 defines "maliciously" very broadly to include interfering in any manner with the orderly administration of justice, and in general was intended only to exclude attempts by family members to protect a witness or victim by urging them to not become involved. The Los Angeles Metropolitan News-Enterprise reports on the decision.

Israel Obtains Extradition of Recalcitrant Husband From U.S. Using Other Charges As Pretext

YNet News reports that last Friday the United States extradited to Israel a man sought primarily by an Israeli Rabbinical Court for refusing to grant his wife a get (Jewish divorce document).  The U.S.-Israel Extradition Treaty only permits extradition where the offense is a crime under the laws of both countries.  So formally the extradition was on the basis of charges of sex offenses and pedophillia. During the divorce proceedings, the wife's sister testified that the husband had sexually abused his minor son and had abused her when she was a minor.  Usually Israel's Justice Ministry does not request extradition until it has investigated allegations, but here it agreed to act sooner because of the husband's denial of a get.  Rabbi Eliyahu Maimon, head of the Rabbinical Courts' Agunot Department, says that Israel's Justice Ministry Department for International Agreements will use this case as precedent in the future to seek extradition using suspicion of other crimes to obtain return of men who have fled abroad after refusing to grant their spouse a get. [Thanks to Jack Levey for the lead.]

Report On Freedom of Religion or Belief Prisoners Issued

On Dec. 21, Human Rights Without Frontiers International released its Freedom of Religion or Belief & Blasphemy Prisoners List 2013. The report documents prisoners in 24 countries being held for violation of laws restricting worship, proselytizing, conversion or conscientious objection.  Nine countries hold prisoners on blasphemy or defamation of religion charges. The countries with the most freedom of religion or belief prisoners are China, Eritrea, Iran, North Korea and South Korea. The offending countries are all in Asia, northern Africa, the Middle East or are countries of the Former Soviet Union.

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.

Unauthorized Class Action Sought Millions For Denial of Religious Freedom and Right To Marry By Utah and LDS Church

Last Friday, a class action was filed in federal district court in Utah against the state of Utah and the LDS Church on behalf of "all persons denied freedom of religion and the right to marry"-- at least 500 people according to the complaint.  The complaint (full text) in Winburn v. State of Utah, (D UT, filed Dec. 27, 2013), describes the LDS Church as "an entity of defendant State of Utah," and alleges violations of the Fair Debt Collection Act, the Utah Pattern of Unlawful Activity Act and intentional infliction of emotional distress. It seeks damages of at least $25,000 for each class member. Yesterday, the lead plaintiffs in the case filed a "Notice of Voluntary Dismissal" (full text). The plaintiffs, Pidge Winburn and Amy Fowler-- a same-sex couple who were married on Dec. 23 after a federal court invalidated Utah's ban on same-sex marriage-- say they did not authorize the lawsuit, never spoke to the attorney who filed it, and learned of it only through a phone call from a reporter.  Apparently attorney E. Craig Smay who filed the suit learned of Winburn and Fowler through a feature article about them in the Dec. 26 Salt Lake Tribune.  According to yesterday's Salt Lake Tribune, Fowler says she plans to file a formal bar complaint against the attorney.

Utah Seeks Stay From U.S. Supreme Court of District Court's Same-Sex Marriage Decision

As reported by Lyle Denniston at SCOTUSblog, yesterday the state of Utah filed an Application (full text) seeking an immediate stay pending appeal of the Dec. 20 federal district court decision in Kitchen v. Herbert which barred Utah from enforcing its ban on same-sex marriage.  The district court and 10th Circuit have both denied stays. As required by Supreme Court rule, the stay application was filed with Justice Sotomayor, the Justice assigned to the 10th Circuit.  Late yesterday afternoon, Justice Sotomayor asked for a response from respondents by noon on Friday.  It appears that Utah's governor and attorney general have retained an outside law firm to handle the attempt to obtain Supreme Court review.  A Boise, Idaho firm is listed as petitioners' counsel, with counsel of record being the firm's senior partner Monte Neil Stewart who was a law clerk for Chief Justice Warren Burger and is the founder of the Marriage Law Foundation.

Utah's application for a stay argues that it is likely that the district court will be reversed on appeal, and if that happens without a stay the state will be faced with the problem of whether and how to unwind the many marriages that will have occurred in the interim. AP reports on Utah's efforts.

Justice Sotomayor and 3 Circuits Rule On Injunctions Pending Appeals By Non-Profits In Contraceptive Mandate Cases

With the approach of  the Jan. 1, 2014 effective date for the Affordable Care Act contraceptive coverage accommodation for religious non-profits (Final Rules in Federal Register), three circuit courts and a Supreme Court Justice yesterday ruled on motions for injunctions pending appeals by non-profits who lost at the district court level.

• The 7th Circuit denied Notre Dame University's emergency motion for an injunction pending appeal, but ordered expedited briefing and oral argument. (Full text of order.) (See prior related posting.) 
• The 10th Circuit denied Little Sisters of the Poor's emergency motion for an injunction pending appeal. (Full text of order.) (See prior related posting.) However late in the evening, Justice Sotomayor issued a temporary injunction blocking enforcement, and ordered a response by the federal government by 10:00 AM on Friday. (Full text of order from SCOTUSblog.)
• The D.C. Circuit, by a 2-1 vote, granted emergency motions for injunctions pending appeal filed by by Priests for Life (see prior posting) and by the various plaintiffs (other than Thomas Aquinas College that prevailed below) in the Roman Catholic Archbishop of Washington case. (Full text of motion.) Judge Tatel filed a dissenting opinion. The court also ordered the two cases consolidated for appeal. (Full text of Order and Opinion).  Appellants in both cases reacted in press releases. (Statement of Archdiocese; Statement of Priests for Life.)

 [Thanks to Stephen Blakeman for the lead.]