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

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

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

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

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

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

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

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

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

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

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

EU Court of Justice Rules On When Homosexuals Qualify For Refugee Status

On Thursday, the Court of Justice of the European Union issued a preliminary ruling interpreting Council Directive 2004/83/EC on minimum standards for third-country nationals to qualify as refugees. The Directive defines a refugee, in part as a person who has a "well-founded fear of being persecuted for reasons of ... membership of a particular social group...." In X, Y, Z v. Minister voor Immigratie en Asiel, (EU Ct. Justice, Nov. 7, 2013), the court held that:

the existence of criminal laws ... which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group.

... the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment ... which is actually applied ... must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.

.... When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.

The Court also issued a press release on the decision. So did ORAM (the advocacy group for LGBTI refugees). It discusses at length the problems that European officials will face in accurately assessing the credibility of asylum claims based on sexual orientation. The Los Angeles Times reports on the decision, focusing on the persecution of gays and lesbians in Africa-- the home continent of the 3 refugees who were parties to the case decided by the court.

Tonight Is 75th Kristallnacht Anniversary; New Data On Antisemitism In Europe and U.S. Released

A statement (full text) issued yesterday by President Obama points out that tonight marks the 75th anniversary of Kristallnacht-- the violent Nazi-party inspired anti-Jewish pogroms carried out in 1938 in Germany and German -annexed territory in Austria and Czechoslovakia. Kristallnacht marked a turning point that led to ever-increasing anti-Jewish actions by the Nazi regime. Yesterday, the European Union Agency for Fundamental Rights released a new report titled Discrimination and Hate Crime Against Jews in EU Member States: Experiences and Perceptions of Antisemitism. Several related publications were also released.This is the first report to collect comparable current data across 8 EU countries-- Belgium, France, Germany, Hungary, Italy, Latvia, Sweden and the United Kingdom.  These countries are home to 90% of EU's Jewish population. Among the key findings were:

66% of respondents consider antisemitism to be a major problem in their countries, while 76% said the situation had become more acute over the last five years.

21% of all respondents have experienced an antisemitic incident or incidents involving verbal insult, harassment or a physical attack in the 12 months preceding the survey. 2% of respondents had been victims of an antisemitic physical attack over the previous year.

In related developments, the Jewish Museum Berlin hosted a conference last night and today titled Antisemitism in Europe Today: the Phenomena, the Conflicts. A Haaretz op-ed criticized organizers for scheduling the conference on the Jewish Sabbath, thereby effectively precluding participation by observant Jews.  And, according to JTA, earlier this week a German hotel, the Kristall Sauna Wellnesspark in Bad Klosterlausnitz, in the former eastern German state of Thuringen, apologized for the ad it had run promoting a "long, romantic Kristall-Nacht" on November 9.

In the United States, the ADL on Oct. 28 released its 2013 Survey About Attitudes Toward Jews In America. It concluded that 12% of Americans have deeply entrenched anti-Semitic attitudes, a 3% decline from the last poll in 2011.  Meanwhile, the New York Times reported earlier this week on the extensive anti-Semitic harassment of students in the New York State Pine Bush Central School District.

Jury Rejects Religious Harassment Charge By Former School Library Employee

The Roanoke Times reports that a Virginia federal court jury yesterday found for the defendant in Scott v. Montgomery County School Board, a religious discrimination and retaliation suit. (See prior related posting.) In the suit, Judith Scott, a fired school library assistant claimed that her supervisor Nina Donohoe  pressured her for more than a decade to join Christian prayer meetings and Bible study sessions, and that when she refused she was harassed and finally dismissed. Donohoe claimed that her differences with Scott were work-related. After the jurors returned their verdict, Judge James Turk told them: "I think that was the only verdict you could return in this case. It was the principals who recommended [Scott's] contract not be renewed. I think we had two nice ladies in this case who just couldn’t get along. One of them had to go."

Minnesota High Court Upholds Clergy Sexual Conduct Statute Against Establishment Clause Challenges

In State of Minnesota v. Wenthe, (MN Sup. Ct., Nov. 6, 2013), the Minnesota Supreme Court, in a 4-1 decision, upheld the state's clergy-sexual-conduct statute against both facial and an as-applied Establishment Clause challenges.  The court held that Minn. Stat. § 609.344 which criminalizes sexual penetration by a member of the clergy where the victim is receiving religious or spiritual advice does not violate the Establishment Clause merely because it directly targets clergy or because it requires an inquiry into whether the victim was seeking religious or spiritual advice. The court also concluded that as applied in this case, the evidence presented did not raise an excessive entanglement concern concern. Defendant, a Roman Catholic priest who was charged with having sexual relations with a woman he was counseling, was not likely to be convicted by the jury merely because he violated Church doctrine. AP reports on the decision.

Judge's Religious Comments Lead To Remand For Resentencing

In Tores v. State of Florida, (FL App., Nov.6, 2013), a Florida state appellate court reversed a 30-year sentence imposed on defendant for sexual battery and remanded for sentencing by a different judge because of religious comments made in imposing the original sentence.  In imposing the maximum sentence (when the minimum Guidelines sentence was 9 years, 4 months), the sentencing judge condemned defendant for his consensual dating relationship with the victim while defendant was married to someone else, and then said:

Just because your wife is in another country doesn’t mean you ought to be going out with other women. You’re a good Catholic fellow as I am. That’s not the way Catholic people - - that’s not the way anybody with morals should do anything.

The Florida Times-Union reports on the decision.

European Court Says Greek Law Limiting Civil Unions To Heterosexual Couples Violates ECHR

In Vallianatos and Others v. Greece, (ECHR, Nov. 7, 2013), the European Court of Human Rights (Grand Chamber) held, by a vote of 16-1, that a Greek civil union law which is limited to heterosexual couples violates The European Convention on Human Rights. The court concluded that the law is inconsistent with Article 8, violating the right to respect for private and family life of same-sex couples, and amounts to unjustified discrimination between different-sex and same-sex couples in violation of Article 14. The Court issued a press release summarizing the decision.  [Thanks to Paul de Mello, Jr. for the lead.]

EEOC Complaint Filed By Muslims Fired For Taking Unauthorized Prayer Break

As reported by the Cincinnati Enquirer, the Cincinnati (OH) chapter of the Council on American-Islamic Relations yesterday filed a complaint with the EEOC on behalf of 24 former Somali Muslim employees of the DHL Global Mail facility in Hebron, Kentucky. According to CAIR's press release, the company eliminated the flexible evening break time that the employees had been using for evening (Maghrib) prayers. The company's new supervisor fired the employees when they took their break to pray at an earlier time than authorized.

Former Faculty Members' Suit Against Religious College Dismissed On Establishment Clause Grounds

In Winberry v. Louisiana College, (LA App., Nov. 6, 2013), four former faculty members of of a Baptist liberal arts college sued claiming defamation, violation of academic freedom and violation of a settlement of a prior lawsuit. All four taught a required religious class, and the college claimed that they were teaching errant views.  The Louisiana appellate court affirmed the trial court's holding that the ministerial exception does not apply because Louisiana College is not a church. However it also affirmed the trial court's dismissal of the suit on Establishment Clause grounds;

The trial court was correct in holding that the dispute between Plaintiffs and Defendants centers on the nature of Baptist theology and church governance over how theology is taught at Louisiana College and would, thus, require the court to impermissibly entangle itself in deciding ecclesiastical matters.

Senate Passes ENDA; Fate In House Uncertain

As reported by the Huffington Post, the U.S. Senate yesterday passed S.815, the Employment Non-Discrimination Act by a vote of 64-32. The bill prohibits employment discrimination on the basis of sexual orientation or gender identity.  The version passed is that reflected in Senate Amendment 2012 (full text). The vote comes after attempts since 1994 to pass the legislation. The bill's fate in the House though is uncertain, with aides to the House Speaker saying it is unlikely to come up for a vote.  As passed by the Senate, the bill, Sec. 6(a), contains a familiar exemption for religious employers:

This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964 ... pursuant to section 702(a) or 703(e)(2) of such Act.

Section 702(a) exempts any" religious corporation, association, educational institution, or society.... " Section 703(e)(2) exempts any school, college, university, or other educational institution or institution of learning [which] is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion."

At the last minute, the Senate also added a provision to the bill (Sec. 6(b)) to protect religious employers from adverse governmental action in connection with exercise of the exemption:

A religious employer's exemption under this section shall not result in any action by a Federal agency, or any State or local agency that receives Federal funding or financial assistance, to penalize or withhold licenses, permits, certifications, accreditation, contracts, grants, guarantees, tax-exempt status, or any benefits or exemptions from that employer, or to prohibit the employer's participation in programs or activities sponsored by that Federal, State, or local agency. Nothing in this subsection shall be construed to invalidate any other Federal, State, or local law (including a regulation) that otherwise applies to a religious employer exempt under this section.

The Senate, by a vote of 43-55 rejected Senate Amendment 2013 which would have broadened the definition of exempt religious employers.

Reacting to the bill, the American Family Association complained:

ENDA would force religious business owners and workplaces such as Christian bookstores, religious publishing houses, pre-schools and religious television and radio stations to accept as normal any employee who has had a sex-change surgery, is considering a change, or just thinks they are the opposite sex of what they really are.

Michelle Obama Hosts White House Diwali Celebration

The White House reports that on Tuesday, First Lady Michelle Obama welcomed guests to the East Room of the White House for a Diwali celebration. Saying that the holiday had been celebrated at the White House every year since President Obama took office, the First Lady added:

When we say that we want to make the White House the “people’s house,” we mean all people. We mean that we want to honor and embrace all of the many cultures and faith traditions that make us who we are as Americans. And Diwali is very much one of those traditions.

Huffington Post has more excerpts from the Mrs. Obama's remarks. (See prior related posting.)

Britain Looking At Issuing Shariah-Compliant Bonds; London Stock Exchange Islamic Index

In a press release last week (Oct. 29), The Prime Minister's Office in Britain announced plans for a new Islamic index on the London Stock Exchange, as well as hopes for Britain to become the first country outside of the Islamic world to issue an Islamic bond.  In an Oct.29 speech (full text) to the World Islamic Economic Forum held in London, Prime Minister David Cameron said in part:

Already London is the biggest centre for Islamic finance outside the Islamic world.  But today our ambition is to go further still.  Because I don’t just want London to be a great capital of Islamic finance in the Western world.  I want London to stand alongside Dubai and Kuala Lumpur as one of the great capitals of Islamic finance anywhere in the world.

[Thanks to Alliance Alert for the lead]

Cert. Petition Filed By Corporations In D.C. Circuit Contraceptive Mandate Case

A petition for certiorari (full text) was filed yesterday in Gilardi v. U.S. Department of Health and Human Services, (filed 11/6/2013).  In the case, the D.C. Circuit Court of Appeals held that the Catholic owners of a for-profit small business were likely to succeed on the merits of a RFRA challenge to the Affordable Care Act contraceptive coverage mandate, but rejected the claims of the business corporations. (See prior posting.) The petition, filed on behalf of the corporations, urges the Court to find that secular business corporations can assert their own free exercise rights.  The American Center for Law & Justice issued a press release announcing the filing of the cert. petition.

UPS Settles Religious Accommodation Charges Brought By EEOC

The EEOC announced on Monday that United Parcel Service has agreed to pay damages of $70,000 in settlement of a lawsuit charging the company with refusing to provide a Jehovah's Witness employee with a schedule accommodation so he could attend an annual religious service. (See prior posting.) The employee was terminated from his job a few days after his request was denied, and was placed on a company-wide"do not re-hire" list.  Under the settlement with the EEOC, UPS is also enjoined from engaging in future religious discrimination or retaliating against employees for opposing such discrimination.  It will also post its religious accommodation policy and conduct anti-discrimination training.

Town of Greece Case Argued Before Supreme Court

The U.S. Supreme Court heard oral arguments today in Town of Greece v. Galloway.  At issue is the constitutionality of opening city council meetings with sectarian prayers. The full transcript of the oral arguments is now available. SCOTUSblog has a recap of the oral arguments.  ABA Preview has a detailed analysis of the case.

Contraceptive Mandate Challenge Transferred From D.C. to Michigan Federal Court

In M&N Plastics, Inc. v. Sebelius, (D DC, Nov. 5, 2013), the federal district court for the District of Columbia granted the government's motion to transfer a suit by a Michigan small business and its owners challenging the contraceptive coverage mandate to federal court in the plaintiff's home district-- the Eastern District of Michigan. The government argued that plaintiffs' decision to file in D.C. was motivated by a desire to take advantage of favorable precedent in that district. The 6th Circuit (which includes Michigan) has unfavorable precedent for plaintiffs. (See prior posting.)

Paper Reports On Jews In State Prisons

The Forward yesterday carried a lengthy report on how Jews in state prisons deal with anti-Semitism, finding that "In some states Jewish prisoners face as much or more anti-Semitism from staff as from fellow inmates."  The report also quotes an expert who concludes:  "Those who are the most out front about being Jewish get the least hassle [from fellow-inmates]. We have inmates wearing yarmulkes and tzitzit in the most dangerous prisons in the country, and no one touches them." The report goes on:

Perhaps the most noticeably different thing about Jewish prisoners is their access to kosher food, which is almost universally considered superior to regular prison fare.... “You wouldn’t believe the politics around the kosher food on the yard,” said J.D. Rollins, a since-freed Muslim prisoner who befriended numerous Jews while behind bars in California. Inmates and staff both resented the special treatment they thought the diet represented. Kosher food would often be tampered with or stolen by inmates in the kitchens, both to punish those on the diet and to barter the valuable goods.

...[K]osher food is so desirable that five-sixths of prisoners on the diet are non-Jews. They can do this by exploiting the vagueness of the law, which grants the right to a religious diet to those with a loosely-defined “sincerely held” religious belief.

Illinois Legislature Gives Final Approval To Same-Sex Marriages

As reported by the Chicago Sun-Times and the New York Times, the Illinois General Assembly yesterday gave final approval to SB10 legalizing same-sex marriage in the state.  The state Senate had originally passed the bill in February, but the crucial House vote did not come until yesterday, delayed by opposition form black clergy and the Catholic Archdiocese of Chicago.  The House vote, after  adding one amendment to the Senate bill, was 61-54 with 2 abstentions. The Senate then quickly approved the bill as amended by a vote of 32-21. Gov. Pat Quinn has said he will sign the bill.

The bill contains protections for objecting clergy and religious institutions:

Nothing in this Act shall interfere with or regulate the religious practice of any religious denomination or Indian Nation....

Nothing in this Act shall be construed to require any religious denomination or Indian Nation ... or any minister, clergy, or officiant acting as a representative of a religious denomination or Indian Nation ... to solemnize any marriage. Instead [it is] ... free to choose which marriages it  will solemnize. Notwithstanding any other law to the contrary, a refusal by a religious denomination or Indian Nation..., or any minister, clergy, or officiant ... to solemnize any marriage under this Act shall not create or be the basis for any civil, administrative, or criminal penalty, claim, or cause of action.

No church, mosque, synagogue, temple, nondenominational ministry, interdenominational or ecumenical organization, mission organization, or other organization whose principal purpose is the study, practice, or advancement of religion is required to provide religious facilities for the solemnization ceremony or celebration associated with the solemnization ceremony of a marriage if the ... ceremony or celebration ... is in violation of its religious beliefs. [Such] entity ... shall be immune from any civil, administrative, criminal penalty, claim, or cause of action based on its refusal to provide religious facilities .... As used in this subsection..., "religious facilities" means sanctuaries, parish halls, fellowship halls, and similar facilities. "Religious facilities" does not include facilities such as businesses, health care facilities, educational facilities, or social service agencies.

Town Council Prayer Case To Be Argued In Supreme Court Tomorrow

Tomorrow the U.S. Supreme Court will hear oral arguments in a major church-state case-- Town of Greece v. Galloway.  At issue is the practice in the town of Greece, New York of opening its Town Board meetings with a prayer, most of which have been overtly Christian. In the case, the 2nd Circuit held that the town's prayer policy violates the Establishment Clause because "an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity." (See prior posting.) The briefs in the case, including the numerous amicus briefs that have been filed, are available from ScotusBlog, and Lyle Denniston has an Argument Preview.

Another Non-Profit Contraceptive Coverage Mandate Challenge

Yesterday saw another lawsuit challenging the Affordable Care Act contraceptive coverage mandate.  MLive reports that Right to Life of Michigan filed suit in federal district court in Michigan on Nov. 4. Its complaint alleges in part:

Plaintiff employs 33 full-time employees and 10 part-time employees, and is forced under the mandate to conduct business in a manner that violates their religious faith by providing and funding abortifacient drugs and devices, which violates deeply held religious beliefs and the sole reason they work for [Right to Life].