Israel's Supreme Court Issues Temporary Stay Of Rabbinical Court's Order Requiring Boy's Circumcision

As previously reported, last month Israel's Supreme Rabbinical Court upheld a lower court's $140 per day fine imposed on a woman who is refusing to have her one-year old son circumcised. Her husband, as part of a divorce action, is seeking to require the circumcision. Now, according to a report yesterday from Haaretz, Israel's Supreme Court has issued a temporary injunction halting enforcement of the Rabbinical court's order pending its appeal.  The Supreme Court ordered the husband to respond to the appeal by Jan. 2.

Oklahoma Capitol Commission Puts Moratorium On Applications For New Statehouse Monuments

According to AP, the Oklahoma Capitol Preservation Commission voted yesterday to impose a moratorium on requests for new displays on the statehouse grounds until a pending lawsuit over a Ten Commandments monument there is resolved. News of the monument put up last year triggered a request from a New York-based Satanic Temple for permission to also put up a monument.  That was quickly followed by requests from a Hindu group in Nevada, the People for the Ethical Treatment of Animals, and the satirical Church of the Flying Spaghetti Monster. (See prior related posting.) The Commission chairman said passing on any of these requests now would be premature.

After 2 Wins, Religious Non-Profits Lose Challenge To Contraceptive Mandate Accommodation In D.C. Federal Distrct Court

After Pennsylvania and New York federal district courts in recent weeks held that the Affordable Care Act contraceptive coverage mandate accommodation for religious non-profits violates the Religious Freedom Restoration Act, yesterday the D.C. federal district court reached an opposite conclusion, rejecting both RFRA and 1st Amendment challenges to the final regulations. In Priests for Life v. U.S. Department of Heath and Human Services, (D DC, Dec. 19, 2013), the D.C. federal district found that no substantial burden was placed on a pro-life group's free exercise by requiring it to complete the self-certification form to opt into the accommodation for religious non-profits:

during oral argument Plaintiffs conceded that they have no religious objection to the self-certification form, in and of itself. Rather, Plaintiffs’ act under the accommodations becomes burdensome only when it is characterized as “cooperating” with or providing “authorization” for “the government’s illicit goal of increasing access to and utilization of contraceptive services.” ... But no matter how religiously offensive the statutory or regulatory objective may be, the law does not violate RFRA unless it coerces individuals into acting contrary to their religious beliefs.... In this case, it is only the subsequent actions of third parties – the government’s and the issuer’s provision of contraceptive services, in which Priests for Life plays no role – that animate its religious objections.

Staten Island Live reports on the reaction to the decision by  Rev. Frank Pavone, national director of Priests for Life:

Injunction or not, we will absolutely not obey, cooperate with, or tolerate in any way this unjust mandate. As Scripture says, we will obey God rather than men.

New Mexico Supreme Court Validates Same-Sex Marriages

In Griego v. Oliver, (NM Sup. Ct., Dec. 19, 2013), the New Mexico Supreme Court, in a unanimous opinion, held that the state must allow same-sex couples to marry.  New Mexico is the only state whose laws do not explicitly either permit or prohibit same-sex marriage. (See prior related posting.)  However in its decision, the Supreme Court concluded that "the statutory scheme reflects a legislative intent to prohibit same-gender marriages."  It went on to hold that this prohibition is unconstitutional:

We conclude that the purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children if they choose to raise children together, and their property. Prohibiting same-gender marriages is not substantially related to the governmental interests advanced by the parties opposing same-gender marriage or to the purposes we have identified. Therefore, barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution. We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.

In reaching its decision, the court added:

Although this question arouses sincerely-felt religious beliefs both in favor of and against same-gender marriages, our analysis does not and cannot depend on religious doctrine without violating the Constitution.... Our holding will not interfere with the religious freedom of religious organizations or clergy because (1) no religious organization will have to change its policies to accommodate same-gender couples, and (2) no religious clergy will be required to solemnize a marriage in contravention of his or her religious beliefs.

Bloomberg News reports on the decision which makes New Mexico the 17th state to recognize same-sex marriage. [Thanks to Tom Rutledge for the lead.]

Lawsuit Charges Mohel Botched Infant's Ritual Circumcision

According to the Pittsburgh Tribune-Review, a lawsuit was filed in Philadelphia (PA) on Tuesday by parents of a now-8 month old boy whose ritual circumcision was allegedly botched.  The suit against Rabbi Mordechai Rosenberg, the mohel who performed the circumcision last April, says that Rosenberg's negligence led to catastrophic and life-changing injury to the infant who had to be rushed to Children's Hospital for emergency reconstructive surgery.

Saturnalia Billboard Angers Town Residents

In the small town of Pitman, New Jersey, for over 40 years a large banner proclaiming "Keep Christ in Christmas" has hung over a street in the city's business district. Philly.com reports that the Freedom from Religion Foundation has been rebuffed for several years in its attempt to get permission to put up a competing sign, so instead they have now rented billboard space at a busy intersection to display their message: "Keep the Saturn in Saturnalia."  This has apparently incensed some Pitman residents, and protests are escalating.  On Sunday, a family attempted to shroud the billboard with a picture of Jesus, and on Tuesday night, two men attempted unsuccessfully to burn down the billboard after pouring gasoline at its base.  The police chief says that patrols near the billboard will be increased, and the arsonists will be prosecuted if caught.

Russia May Free Pussy Riot Band Members Early

To mark the 20th anniversary of the Russian Constitution, Russia's State Duma yesterday by a vote of 446-0 passed a broad prison amnesty bill applying to various categories of offenders and offenses.  Radio Free Europe reports that since the amnesty covers those sentenced for hooliganism, it apparently includes the two jailed members of the punk rock band Pussy Riot. In August 2012, the band members were arrested after they entered a nearly empty Christ the Savior Cathedral in Moscow and performed an obscene "punk prayer" in protest of the Russian Orthodox Church's political support for Vladimir Putin. (See prior posting.) Their sentences are up in March without the amnesty. The amnesty law goes into effect as soon as it is published in  "Rossiiskaya Gazeta," the government newspaper-- which is expected to happen today. Some suggest that the amnesty law is an attempt to bolster Russia's human rights image ahead of the upcoming Winter Olympics in Sochi.

UPDATE: CNN reports (Dec. 23) that the two Pussy Riot band members have been released from prison.

Service Members Object To Chrechès At Guantanamo

The Navy Times reports this week that 18 active duty service members stationed at Guantanamo Bay, Cuba are complaining about two Nativity scenes that have been placed in on-base galleys.  They want them moved to the on-base chapel. In an e-mailto the Military Religious Freedom Foundation asking for help, the objecting service members wrote:

Our local military family encompasses many faiths and beliefs to include Muslim, Jewish, Wiccan, Buddhist, Agnostic and other denominations. By placing these displays in prominent common areas, the impression is that one faith is better than others, and that the military institution singularly promotes Christianity.

[Thanks to Dawinder Sidhu via Religionlaw for the lead.]

European Human Rights Court Says Refusal of Vegetarian Diet To Buddhist Prisoner Violated His Religious Rights

In Vartic v. Romania, (ECHR, Dec.17, 2013),the European Court of Human Rights, in a Chamber judgment, held that a Buddhist prison inmate's rights of religion and conscience protected by Article 9 of the European Convention on Human Rights, were infringed when Romanian officials refused to provide him with a vegetarian diet:

...[D]espite the margin of appreciation left to the respondent State, the Court finds that the authorities failed to strike a fair balance between the interests of the prison authorities and those of the applicant, namely the right to manifest his religion through observance of the rules of the Buddhist religion.

The court awarded petitioner damages of 3200 Euros. Courthouse News Service reports on the decision.

Russian Appeals Court Says Qur'an Translation Is Not Extremist Publication

RAPSI reported yesterday that in Russia, the Krasnodar Territorial Court has reversed the controversial ruling by the Novorossiisk District Court that had banned an abridged Russian translation of the Qur'an by Azerbaijani philosopher Elmir Kuliyev.  The lower court had held that the translation should be banned under the federal law barring extremist materials, and that copies of it should be destroyed. (See prior posting.) The Territorial Court has refused to declare the translation an extremist work.

No Unemployment Benefits Because Employee Failed To Notify Employer of Scope of Needed Religious Accommodation

In Rhodes v. Unemployment Compensation Board of Review, 2013 Pa. Commw. Unpub. LEXIS 890 (PA Commonwealth Ct., Dec. 16, 2013), the Commonwealth Court of Pennsylvania agreed with the Unemployment Compensation Board of Review that a former veterans' center food service worker had left his job voluntarily, and had not been forced to leave because of discrimination based on his religious beliefs. Therefore he was not entitled to unemployment benefits.  The former employee had informed his employer that he had religious objections to participating in religious holidays.  The employer accommodated him.  However, when the employee refused to set up for a Fathers' Day luncheon, he was disciplined, and resigned.  The court held that the employee failed to advise his employer that his religious beliefs precluded him from participating not just in religious holidays, but in secular ones also, and thus did not give the employer a reasonable opportunity to accommodate those beliefs.

Two Decisions Follow On Illinois Legalization Of Same-Sex Marriage

As previously reported, last month Illinois Governor Pat Quinn signed legislation legalizing same-sex marriage in the state, effective June 1, 2014. There have now been two follow-up judicial developments. As reported by Illinois Review, yesterday, with the backing of all parties, an Illinois state trial court judge dismissed as moot the complaint in Darby v. Orr, a suit filed last year by the ACLU and Lambda Legal challenging the constitutionality of Illinois' previous prohibition of same-sex marriage.

Meanwhile, in Lee v. Orr, (ND IL, Dec. 10, 2013), an Illinois federal district court issued an opinion in a class action lawsuit granting a temporary injunction allowing  individuals in same-sex relationships who need to marry before to June 1, 2014 due to a life-threatening illness of one or both parties the right to do so. The court said:

The putative subclass of medically critical plaintiffs here are likely to succeed on the merits of their claim that the provisions of the current Illinois law that deny them the right to marry based solely on their sexual orientation, as applied, violates their constitutional right to equal protection.

The court's decision was contingent on the parties agreeing on a satisfactory implementation method.  They have done so.  As announced by the ACLU,  the court finalized its order yesterday adopting a procedure that allows same-sex couples to marry before June 1 if they provide a doctor’s certification stating that one of them has a life-threatening illness. Still pending in the case is the broader attempt by plaintiffs to speed up the same-sex marriage implementation date for everyone.

North Dakota AG Says Non-Recognition of Same-Sex Marriage Allows Issuance of License For Heterosexual Marriage To Same-Sex Spouse

In Letter Opinion 2013-L-06, (ND AG, Dec. 12, 2013), North Dakota Attorney General Wayne Stenehjem concluded that since the state does not recognize same-sex marriages, a county recorder in North Dakota may issue a marriage license for a heterosexual marriage to an individual who previously entered a valid same-sex marriage in another state, even when the same-sex marriage has not been legally dissolved.  Consistent with this, the Attorney General also ruled that an individual who previously entered a same-sex marriage elsewhere would not be committing a criminal violation in North Dakota by checking the box on the marriage license application indicating that he or she is "Single/Never Married." The Attorney General concluded by stating that it would be inappropriate for him to give a legal opinion on whether the person married in these circumstances would be in violation of another state's bigamy statute if he returns to a state that recognizes both marriages. Forum News Service reports on the AG's opinion letter. [Thanks to Alliance Alert for the lead.]

Canada's First Religious Law School Clears Major Approval Hurdle

In Canada, Trinity Western University, a Christian liberal arts university in British Columbia, cleared a major hurdle this week in its bid to open the country's first private religious law school.  In a December 16 press release, the Federation of Law Societies of Canada announced that it has granted preliminary approval for the school's program. As reported by The Tyee yesterday, the Council of Canadian Law Deans had expressed concern over the school’s mandatory Community Covenant agreement for students, faculty, and staff. (See prior posting.) The Covenant calls for abstention from alcohol, tobacco, illegal drugs, and "sexual intimacy that violates the sacredness of marriage between a man and a woman." The Deans objected that the Covenant may lead to illegal discrimination on the basis of sexual orientation. The Federation of Law Societies is considering adding a non-discrimination requirement for all law schools. The proposed new law school now must still obtain approval from British Columbia's Ministry of Advanced Education.

Court Denies Freedom of Information Request For Name of Mohel Who Spread Herpes

In In re Application of Berger and The Jewish Daily Forward v. New York City Department of Health and Mental Hygiene, (NY Sup Ct Queens Co., Dec. 2, 2013), a New York state trial court rejected an investigative reporter's Freedom of Information Law (FOIL) request for the name of the Mohel (Jewish ritual circumcision practitioner) who infected an infant with herpes while using the Orthodox Jewish circumcision practice of Metzizah B'Peh (oral suction).  Rules promulgated by the New York City health department require written informed consent from parents for use of the oral suction method. (See prior posting.) In rejecting the FOIL request, the court relied on the statutory exemption for records which "if disclosed would constitute an unwarranted invasion of personal privacy...." The court said:

A person with herpes or any similar communicable disease suffers the same privacy concerns whether or not his business or personal life is concerned. In either instance, their personal privacy concerns are implicated irrespective of their vocational situation. The fact that an infected individual is a Mohel, a sous chef, or a police officer, no less implicates their personal privacy interests, or diminishes the need to keep their health status confidential.... 

The court finds that the disclosure of the names of the reported persons would likely subject the named individuals to vilification in the press, as well as embarrassment and shame in both their business and private life, in addition to possible sanctions for violations of the NYC Health Code if they infected others. The Court is also aware of the difficulties encountered by the New York City Department of Health in obtaining the cooperation of infected persons or members of religious orders in reporting conditions involving the spread of contagion.

The Forward yesterday reported on the decision.

New York Religious Non-Profits Win Injunction Against Obamacare Contraceptive Coverage Rule

In Roman Catholic Archdiocese of New York v. Sebelius, (ED NY, Dec. 16, 2013), a New York federal district court granted an injunction to two Catholic schools and two Catholic health care organizations, preventing the federal government from enforcing the Affordable Care Act final contraceptive coverage mandate rules against them.  Under those rules, religious non-profits that do not qualify for a total exemption from the mandate may complete a self-certification form attesting to their religious objections and send that form to their insurer or third party administrator.  The insurer or administrator then-- under rules promulgated under ERISA-- must furnish contraceptive coverage to the non-profit's employees without charge.  In a new twist in this case, however, the government conceded that because all the plans involved in this case are "church plans," regulations under ERISA do not apply to them.

The court held that, under the Religious Freedom Restoration Act, the self-certification requirements in the final contraceptive coverage rules substantially burden the religious exercise of plaintiff organizations, and the government failed to show that these rules are the least restrictive means of advancing a compelling governmental interest. The court said in part:

As for the self-certification requirement, the Court rejects the Government’s position that plaintiffs may be compelled to perform affirmative acts precluded by their religion if a court deems those acts merely "de minimis." This argument – which essentially reduces to the claim that completing the self-certification places no burden on plaintiffs’ religion because "it’s just a form" – finds no support in the case law....

Plaintiffs’ religious objection is not only to the use of contraceptives, but also to being required to actively participate in a scheme to provide such services. The Government feels that the accommodation sufficiently insulates plaintiffs from the objectionable services, but plaintiffs disagree. Again, it is not the Court’s role to say that plaintiffs are wrong about their religious beliefs.

Finding a substantial burden, the court went on to conclude that the government had not shown a compelling interest to impose the burden:

Tens of millions of people are exempt from the Mandate, under exemptions for grandfathered health plans, small businesses, and "religious employers" like the Diocesan plaintiffs here. Millions of women thus will not receive contraceptive coverage without cost-sharing through the Mandate. Having granted so many exemptions already, the Government cannot show a compelling interest in denying one to these plaintiffs....

Finally, but very significantly, the Government’s belated revelation that the regulations do not even require plaintiffs’ TPAs to provide contraceptive coverage [because they are "church plans"] fatally undermines any claim that imposing the Mandate on these plaintiffs serves a compelling governmental interest.... In other words, the Mandate forces plaintiffs to fill out a form which, though it violates their religious beliefs, may ultimately serve no purpose whatsoever. A law that is totally ineffective cannot serve a compelling interest.

The court also found that numerous less restrictive alternatives are available, such as direct government provision of contraceptive services or insurance, or furnishing of coverage through third parties without requiring the objecting employer's active participation.

While thus granting an injunction to diocese-affiliated schools and health care organizations, the court refused to grant an injunction barring enforcement against the two diocese plaintiffs themselves, because under the final rules they are completely exempt from the mandate.  In doing so, the court rejected the rationale relied upon by a Pennsylvania federal district court last month in granting a preliminary injunction in a similar challenge. (See prior posting.)  The New York court said:

Count VI of the Amended Complaint alleges that the Mandate unconstitutionally interferes with the Catholic Church’s internal governance by "artificially splitting the Catholic Church in two," dividing its religious arm from its charitable and educational arms.... The Mandate does not "split" the Catholic Church in two – it does not require any change to the religious structure, hierarchy or organization of the Church and its affiliated organizations. At most, it could "split" the Church’s health plan in two. The prohibition on interference with internal church governance applies to ecclesiastical matters such as the selection and supervision of ministers by religious authorities, and plaintiffs have not cited any case that even remotely suggests that a health plan may constitute a matter of "internal church governance" protected by the First Amendment.

Newsmax reports on reaction to the decision. [Thanks to Geoff Surtees for the lead.]

House Subcommittees Hold Hearing On Iran's Detention of American Pastor

On Dec.12, two subcommittees of the U.S. House Foreign Affairs Committee held a joint hearing on "Iran’s Persecution of American Pastor Abedini Worsens."  The text of prepared statements and videos of the entire hearing are available on the Committee's website.

Federal Financial Aid Forms Will Now Recognize Same-Sex Marriages

The U.S. Department of Education announced on Friday that, in light of the Supreme Court's Windsor decision, it will recognize same-sex marriages for purposes of eligibility for Federal Financial Aid. It said in part:

[T]he Department will recognize a student or a parent as legally married if the couple was legally married in any jurisdiction that recognizes the marriage, regardless of whether the marriage is between a couple of the same sex or opposite sex, and regardless of where the student or couple lives or the student is attending school.

It also posted on its website a "Dear Colleague" letter (full text) detailing how its new policy should be applied by those completing FAFSA financial aid forms and calculating the student's Expected Family Contribution. The new policy does not apply to civil unions, domestic partnerships and other arrangements short of marriage. However, as announced earlier this year, beginning with the 2014-2015 FAFSA, dependent students will be required to include on the FAFSA income and other information regarding their legal parents (biological or adoptive) regardless of marital status or gender, if those parents live together. FAFSA will include a new category: "unmarried and both parents living together." [Thanks to Alliance Alert for the lead.]

Recent Articles of Interest

From SSRN:

• Lorenzo Zucca, Is Scientology a Religion? Religious Marriage and the UK Supreme Court's Landmark Decision Hodkin v Registrar, (December 9, 2013).
• Eric Bennett Rasmusen, The Goals of the Corporation under Shareholder Primacy: Just Profit — Or Social Responsibility and Religious Exercise Too?, (December 8, 2013).
• Linda C. McClain, Against Agnosticism: Why the Liberal State Isn't Just One (Authority) Among the Many, (Boston University Law Review, Vol. 93 (December 2013)).

From SmartCILP and elsewhere:

• John Makdisi, Uncaring Justice: Why Jacque v. Steenberg Homes Was Wrongly Decided, 51 Journal of Catholic Legal Studies 111-143 (2012).
• Brian M. Murray, Chicken Soup for the Legal Soul: The Jurisprudence of Saint Thomas Moore, 51 Journal of Catholic Legal Studies 145-206 (2012).
• Joshua Dorner, Religious Liberty for Some or Religious Liberty for All?, (Center for American Progress, Dec. 12, 2013).

British Tribunal Awards Wiccan Witch Damages For Unfair Dismissal and Religious Discrimination In Employment

In Britain, in the first case of its kind, an Employment Tribunal at Watford (near London) has awarded a total of over £15,000 ($24,500 US) for unfair dismissal, sex discrimination and religious discrimination in a suit brought by a Wiccan witch who claims she was fired by her employers who were horrified when they learned of her beliefs.  According to last week's Daily Mail, Karen Holland had worked for two years at the newspaper and magazine concession at the Londis store in West Hemple when in October the news agency was taken over by two brothers, Tarloch and Gurnam Singh (who are Sikhs). They discovered Holland's beliefs later that month when she returned from celebrating All Hallows' Eve (also known as the Pagan Festival of the Dead).  They began to ridicule her and fired her the next month after accusing her of stealing a magazine and a lottery ticket. In finding for Holland, the Tribunal judge said that the manner in which she was fired was "indefensible" and breached "the basics of natural justice." The owners are appealing the decision, saying the damage award will destroy their business.