Florida Counties' Schools Allow Bible Distribution For Religious Freedom Day

In Orange and Collier counties in Florida yesterday, public schools marked Religious Freedom Day by allowing the the Florida Family Policy Council and World Changers of Florida to distribute Bibles to high school students under the schools' policy on outside distribution of materials.  The Orlando Sentinel reports that softcover and hardcover New International Version Bibles were placed by volunteers on unmanned tables in accessible locations where students could pick them up. A lawsuit by the Central Florida Freethought Community was filed last year when Orange County school officials only permitted the group to make some of its literature available for students. (See prior related posting.)

Spokane Diocese Suing Its Bankruptcy Lawyers For Malpractice

AP reported on Wednesday that the Catholic Diocese of Spokane has refiled in federal bankruptcy court its bankruptcy malpractice lawsuit against the law firm of Paine Hamblin and two lawyers who were members of the firm. The firm handled the reorganization of the diocese that began with bankruptcy filings in 2004 and ended in 2007 after a $48 million settlement with 175 abuse victims. (See prior posting.)  The malpractice suit seeking return of millions of dollars in legal fees and more millions of dollars in damages was originally filed in 2012, but dismissed on technical grounds. The 2012 suit was described by the Spokane Spokesman-Review:

The diocese... says ... that bankruptcy lawyers Shaun Cross and Greg Arpin failed to explore other means of ending the abuse scandal ... [and] blames the lawyers for writing a bankruptcy plan that failed to assess and adequately fund the risk of new claims, which nearly forced the foreclosure of churches. The lawsuit also accuses the attorneys of a conflict of interest, in shielding former Bishop William Skylstad from testifying in the first civil trial alleging sex abuse by filing for bankruptcy on the eve of that suit.

The law firm says it provided excellent representation in guiding the diocese out of a crisis that included over 180 clergy sex abuse claims.

Today Is Religious Freedom Day

Today is Religious Freedom Day, the anniversary of the passage in 1786 of the Virginia Statute for Religious Freedom.  President Obama yesterday issued a Proclamation (full text) which urged "every country to recognize religious freedom as both a universal right and a key to a stable, prosperous, and peaceful future." The Proclamation also reads in part:

The Virginia Statute for Religious Freedom, penned by Thomas Jefferson, declared religious liberty a natural right and any attempt to subvert it "a departure from the plan of the Holy Author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either." The Statute inspired religious liberty protections in the First Amendment, which has stood for almost two and a quarter centuries.

Today, America embraces people of all faiths and of no faith. We are Christians and Jews, Muslims and Hindus, Buddhists and Sikhs, atheists and agnostics. Our religious diversity enriches our cultural fabric and reminds us that what binds us as one is not the tenets of our faiths, the colors of our skin, or the origins of our names. What makes us American is our adherence to shared ideals -- freedom, equality, justice, and our right as a people to set our own course.

Today, Melissa Rogers and Eric Treene posted on the White House blog a tribute to Religious Freedom Day, emphasizing the importance of the Religious Land Use and Institutionalized Persons Act.

USCIRF Says US Should Raise Plight of Religious Minorities At Geneva II Syrian Peace Conference

The Geneva II, UN-backed peace conference on Syria will begin in Montreux, Switzerland on January 22. (Background.) On Tuesday, the U.S. Commission on International Religious Freedom issued a press release calling on the U.S. government "to emphasize the plight of religious minorities and the protection of religious freedom for all Syrians" during the Conference. USCIRF Chairman Robert George said:

The Alawite and Christian communities, who are not aligned with either side of the conflict, are inadequately represented by the opposition coalition and the Assad regime does not represent their concerns. The United States needs to work to ensure their views are considered and heard.

Chicago Archdiocese Releases Files on 30 Priests In Settlement of Abuse Lawsuits

AP reports that yesterday the Catholic Archdiocese of Chicago released 6000 pages of documents relating to 30 priests who have had substantiated sex abuse allegations lodged against them. The step comes as part of the settlement of suits by victims.  Lawyers for the victims say they plan to make the released files public next week.  Files on another 35 priests who have had substantiated abuse complaints against them have not been released because they were not the subject of the lawsuits that were settled.  The Archdiocese plans to develop a process for release of these additional documents. The Archdiocese yesterday posted a statement about the document release on its website.

UPDATE: The law firm of Jeff Anderson & Associates has now posted the released documents here.

Moroccan King Asks Muslims and Jews To Pray For Rain

JTA reported this week that in Morocco as the country faces a possible drought, King Mohammed VI is covering all of his bases. He requested that prayers for rain be recited both in mosques, and synagogues in the country.  Last Friday Muslims prayed for rain, and on Saturday Jews in Moroccan synagogues did likewise in response to a statement from the Council of Israelite Communities in Morocco asking Jewish worshipers to pray so that God may "spare our country and help His Highness the King."

7th Circuit Allows Notre Dame Students To Intervene In Appeal of Contraceptive Mandate Rule Challenge

The Chicago Tribune reported this week that the U.S. 7th Circuit Court of Appeals has granted a motion filed earlier this month by three female Notre Dame University students seeking to intervene anonymously in the appeal by Notre Dame of the ruling requiring it to comply with the Affordable Care Act contraceptive coverage mandate final rules relating to religious non-profits. (Memorandum supporting motion to intervene.) The 3 students say that their access to contraceptives turns on the outcome of the case.

Pastor Loses Claim That Oklahoma License Plates Force Him To Display Image That Violates His Beliefs

In Cressman v. Thompson, (WD OK, Jan. 14, 2014), a Oklahoma federal district court rejected plaintiff's 1st Amendment compelled speech challenge to the design of Oklahoma license plates.  The plates carry an image of a Native American shooting a bow-and-arrow.  Plaintiff, a United Methodist pastor, claims the image is that of the Sacred Rain Arrow statue and conveys a message contrary to his Christian religious beliefs. He argues that the statue retells the story of a Native American who believes in sacred objects, multiple deities, the divinity of nature and the ability to use sacred objects to convince gods to change nature. The court ruled however that:

a reasonable observer would not be likely to conclude that an identifiable message was conveyed simply from the inclusion of the image on the standard state license plate. Without further research, it is simply a depiction of an Indian shooting a bow and arrow. A reasonable observer, even one living in Oklahoma, would not be likely to know of Allen Houser’s intentions or thoughts in creating the “Sacred Rain Arrow” statue or of the legend behind it, even if the observer assumed the image was an exact replica of the statue. The average Oklahoman or other reasonable observer is unlikely to have seen the specific background information plaintiff submitted or to have made the connection to the plate that plaintiff relies on.

AP reports on the decision. (See prior related posting.)

Supreme Court Hears Oral Arguments In Abortion Clinic Buffer Zone Case

The U.S. Supreme Court this morning heard oral arguments in McCullen v. Coakley, a case challenging on free speech grounds a Massachusetts law creating a 35-foot buffer zone around abortion clinics to shield women entering the clinics from abortion opponents.  The law allows only clinic employees acting within the scope of their employment to be on sidewalks within the buffer zone. The full transcript of the oral arguments is now available. SCOTUSblog has a recap of the arguments, as well as well as a case page with links to all the briefs, the lower court opinion and other information.

American Atheists Sue Over Oklahoma Capitol Ten Commandments

On Monday, the American Atheists filed a federal court lawsuit against the Oklahoma State Capitol Preservation Commission challenging the Ten Commandments monument erected in 2012 on the Oklahoma State Capitol Grounds. (Press release.)  The complaint (full text) in American Atheists Inc. v. Thompson, (WD OK, filed 1/13/2014) includes a lengthy analysis of the text and design of the display.  The ACLU has previously filed a state court lawsuit challenging the monument (see prior posting). In December, the State Capitol Preservation Commission placed a moratorium on new applications to erect monuments on the capitol grounds as proposals to put up competing monuments proliferated. (See prior posting.) In its complaint, American Atheists says that if it loses its bid to have the Ten Commandments removed, it will also seek permission to place a monument on the capitol grounds. KRMG News reports on the lawsuit.

Federal District Court Strikes Down Oklahoma Same-Sex Marriage Ban; Stays Effectiveness of Decision

In Bishop v. United States, (ND OK, Jan. 14, 2014), an Oklahoma federal district court, in a 68-page opinion, held that the provision in the Oklahoma constitution barring same-sex marriage in the state violates the equal protection clause of the U.S. Constitution. After a lengthy discussion of the justifications for the ban offered by the state, the court said:

Equal protection is at the very heart of our legal system and central to our consent to be governed. It is not a scarce commodity to be meted out begrudgingly or in short portions. Therefore, the majority view in Oklahoma must give way to individual constitutional rights. The Bishop couple has been in a loving, committed relationships for many years. They own property together, wish to retire together, wish to make medical decisions for one another, and wish to be recognized as a married couple with all its attendant rights and responsibilities. Part A of the Oklahoma Constitutional Amendment excludes the Bishop couple, and all otherwise eligible same-sex couples, from this privilege without a legally sufficient justification.

The court however-- with an eye on the stay granted by the U.S. Supreme Court to a similar Utah federal district court decision-- granted a stay of its injunction against enforcing Oklahoma's provision pending disposition of any appeal to the 10th Circuit. The court dismissed on standing grounds plaintiffs' challenges to provisions in the Oklahoma constitution and DOMA precluding recognition in the state of same-sex marriages performed elsewhere. The Los Angeles Times reports on the decision.

Rezoning For Catholic Senior Housing Project Is Not Establishment Clause Violation

In Foothill Communities Coalition v. County of Orange, (CA App., Jan. 13, 2014), a California appellate court held that creating a new zoning district for a large parcel of land owned by the Catholic Diocese of Orange to allow the diocese to build a senior housing project was not an Establishment Clause violation. The court rejected the argument that a land use approval equals a preference if the landowner is a religious organization.

Report Surveys Levels of Governmental and Social Hostility Toward Religion Worldwide

The Pew Research Center yesterday issued its latest in a series of reports on "the extent to which governments and societies around the world impinge on religious beliefs and practices." Titled Religious Hostilities Reach Six-Year High, the 90-page report analyzes both social hostility toward religion and government restrictions on religion. The Report found:

The share of countries with a high or very high level of social hostilities involving religion reached a six-year peak in 2012.... A third (33%) of the 198 countries and territories included in the study had high religious hostilities in 2012,.... The share of countries with a high or very high level of government restrictions on religion stayed roughly the same in the latest year studied. About three-in-ten countries in the world (29%) had a high or very high level of government restrictions in 2012....

Bipartisan Appropriation Bill Includes Numerous Provisions on Religious Concerns

As reported by the Washington Post, yesterday bi-partisan Congressional negotiators released the full text of the $1.1 trillion Consolidated Appropriations Act 2014 which, if passed by the House and Senate, will fund the federal government through September 2014. Buried in the 1582- page bill are a number of provisions relating to funding of religious activities.

Among these are $3.5 million in funding for the U.S. Commission on International Religious Freedom (pg. 1151); provisions calling for use of various foreign aid funds to, among other things, promote religious reconciliation and promote free exercise of religion (pp. 1250, 1251, 1294, 1308, 1363). Another provision, while banning use of funds for electronic media in prisons makes an exception for equipment used for inmate training, religious or educational programs (pg. 152). Yet another bars discrimination, including religious discrimination, by the Corporation for Public Broadcasting in programs or activities using federal funds. (pg. 986).

The bill also contains the following provisions:

(Pg. 181) None of the funds made available to the Department of Justice in this Act may be used to discriminate against or denigrate the religious or moral beliefs of students who participate in programs for which financial assistance is provided from those funds, or of the parents or legal guardians of such students.

(Pg. 565 and Pg. 1575) (a) None of the funds made available in this or any other Act may be obligated or expended for any employee training that— ...(4) contains any methods or content associated with religious or quasi-religious belief systems or ‘‘new age’’ belief systems as defined in Equal Employment Opportunity Commission Notice N–25 915.022, dated September 2, 1988; or (5) is offensive to, or designed to change, participants’ personal values or lifestyle outside the workplace.

(Pg. 572). (a) None of the funds appropriated by this Act may be used to enter into or renew a contract which includes a provision providing prescription drug coverage, except where the contract also includes a provision for contraceptive coverage.  (b) Nothing in this section shall apply to a contract with— (1) any of the following religious plans: (A) Personal Care’s HMO; and (B) OSF HealthPlans, Inc.; and (2) any existing or future plan, if the carrier for the plan objects to such coverage on the basis of religious beliefs.  (c) In implementing this section, any plan that enters into or renews a contract under this section may not subject any individual to discrimination on the basis that the individual refuses to prescribe or otherwise provide for contraceptives because such activities would be contrary to the individual’s religious beliefs or moral convictions.  (d) Nothing in this section shall be construed to require coverage of abortion or abortion-related services.

(Pg. 595). Nothing in this Act may be construed to prevent the Council or Mayor of the District of Columbia from addressing the issue of the provision of contraceptive coverage by health insurance plans, but it is the intent of Congress that any legislation enacted on such issue should include a ‘‘conscience clause’’ which provides exceptions for religious beliefs and moral convictions.

(Pg. 1136): None of the funds appropriated under this heading may be used for the preservation of religious sites unless the Secretary of State determines and reports to the Committees on Appropriations that such sites are historically, artistically, or culturally significant, that the purpose of the project is neither to advance nor to inhibit the free exercise of religion, and that the project is in the national interest of the United States.

(Pg. 1160). That in awarding grants for natural family planning under section 104 of the Foreign Assistance Act of 1961 no applicant shall be discriminated against because of such applicant’s religious or conscientious commitment to offer only natural family planning....

(Pg. 1200). Funds appropriated or otherwise made available by this Act and prior Acts making appropriations for the Department of State, foreign operations, and related programs, under the heading ‘‘Embassy Security, Construction, and Maintenance’’ may be obligated for the relocation of the United States Embassy to the Holy See only if the Secretary of State reports in writing to the Committees on Appropriations that— (A) the United States Ambassador to the Holy See and embassy staff will retain their independence from other United States missions located in Rome, including by maintaining a separate building with a discrete address and entrance; and (B) any relocation of the chancery will not increase annual operating costs, will not result in a reduction in staff, and will enhance overall security for the United States Embassy to the Holy See.

Court Says New Mexico Constitution Allows Physician "Aid In Dying"

In Morris v. Brandenberg,(NM Dist. Ct., Jan. 13, 2014), a New Mexico state trial court held that:

the liberty, safety and happiness interest of a competent, terminally ill patient to choose aid in dying is a fundamental right under our New Mexico Constitution.

The court defined aid in dying as "the practice of a physician providing a mentally competent, terminally ill patient with a prescription for medication which the patient may choose to ingest to achieve a peaceful death and thereby avoid further suffering."  The court enjoined the state from prosecuting physicians under the state's ban on assisting suicide (NMSA 1978 Sec. 30-2-4) for providing aid in dying to terminally ill, mentally competent individuals. The ACLU issued a  press release announcing the decision. The Santa Fe Reporter reports on the decision.

Tom Monaghan Related Catholic Non-Profits Win Preliminary Injunction Against Contraceptive Coverage Rules

In Ave Maria Foundation v. Sebelius, (ED MI, Jan. 13, 2014), a Michigan federal district court granted a preliminary injunction to five non-profit organizations, including the Thomas More Law Center, barring the government from requiring them to comply with the Affordable Care Act contraceptive coverage mandate accommodation for religious non-profits. The organizations were all founded by Catholic philanthropist and Domino Pizza founder Tom Monaghan. The court concluded that plaintiffs have a strong likelihood of succeeding on their claim that the self-certification rule imposes a substantial burden under RFRA on the organizations' religious exercise, saying in part:

the government's argument amounts to disbelief that the self-certification has much religious significance. And adopting this argument would therefore require an examination of the ... rationality of Plaintiffs' convictions — a task beyond the Court's ability or competence.... [H]aving conceded that the accommodation requires Plaintiffs to change their behavior in some way — here, by executing a certification — the government cannot then label that newly required action as trivial. It is not the government's business to decide what behavior has religious significance.

Rejecting the government's argument that it nevertheless has a compelling interest in enforcing the mandate compromise, the court said:

Here, the sheer number of exceptions and stays to the HRSA Mandate undercut the government's argument that requiring religious objectors to provide contraceptive coverage furthers vital interests.

Nigerian President Quietly Signs Controversial Anti-Gay Law

AP reported yesterday that in Nigeria, President Goodluck Jonathan signed the controversial Same-Sex Marriage Prohibition Bill on Jan. 7 without any public announcement that he had done so. (See prior related posting.) The new law imposes up to 14 years in prison for entering a same-sex marriage or civil union.  It also provides: "A person who registers, operates or participates in gay clubs, societies or organizations, or directly or indirectly makes public show of same-sex amorous relationship in Nigeria commits an offense and is liable on conviction to a term of 10 years." U.S. Secretary of State John Kerry issued a statement (full text) yesterday criticizing the new law, saying that " it is inconsistent with Nigeria’s international legal obligations."

Judge Censured For Pressuring Staff To Engage In Prayer and Religious Activity

The ABA Journal reported yesterday on a decision last month by the State of New York Commission on Judicial Conduct censuring Bronx County Judge Mary Brigantti-Hughes for repeatedly using her court staff to perform child care and personal tasks and for asking her staff to pray with her in chambers, attend religious events outside regular working hours and photocopy religious materials. In In re Proceeding in Relation to Mary Brigantti-Hughes, (Dec. 17, 2013), the Commission held that the judge's activities went beyond merely using empty court space during the lunch hour for Bible study or religious meetings that had been approved by the Office of Court Administration. The Commission said:

repeatedly asking her staff to join her in [prayer] sessions misused the prestige of her judicial position, added an element of implicit coercion and crossed the line into impropriety.... Moreover, inviting members of her court staff to attend church-related events after court hours ... was also implicitly coercive.... By creating an environment in which some staff felt pressure to engage in religious activities, her actions impinged on the important separation between church and state, one of the most basic tenets of the federal and state constitutions.

Recent Articles of Interest

From SSRN:

• Bruce Bartlett, Tax Policy and the Bible, (Tax Notes, Vol. 141, No. 11, 2013).
• P.G. Monateri, Stasis in Moltmann e Schmitt (Stasis in Moltmann and Schmitt), (Cosmo. Comparative Studies in Modernism, 3 - 2013: Diritto e Religione, a cura di Cristina Costantini, pp. 9-17).
• Caroline Mala Corbin, Abortion Distortions, (Washington and Lee Law Review, Forthcoming).
• Charles J. Reid, 'May a Man Marry a Man?' Medieval Canon Lawyers Analyze Same-Sex Unions, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-02 (2014)).
• Mattheew I. Hall & Benjamin Means, The Prudential Third Party Standing of Family-Owned Corporations, (University of Pennsylvania Law Review Online, Forthcoming).
• Michael J. Perry, David C. Baum Memorial Lecture: Why Excluding Same-Sex Couples from Civil Marriage Violates the Constitutional Law of the United States, (University of Illinois Law Review, 2014, Forthcoming).
• Brian Christopher Jones, SCOTUS Short Title Turmoil: Time for a Congressional Bill Naming Authority, (32(1) Yale Law & Policy Review Inter Alia 25-33 (2013)).
• Andrew A. Proia, Freeing the Prop 8 Tape: Perry v. Brown, the Presumption of Access to Civil Proceedings, and the Preservation of Judicial Integrity, (University of Florida Journal of Law and Public Policy, Vol. 24, No. 1, 2013).

From SSRN and elsewhere (Islamic Law):

• Suznne Bouclin, YouTube and Muslim Women's Legal Subjectivities, (Oñati Socio-Legal Series, Vol. 3, No. 7, 2013).
• Iris Sportel, 'Because It's an Islamic Marriage' Conditions Upon Marriage and after Divorce in Transnational Dutch-Moroccan and Dutch-Egyptian Marriages, (Oñati Socio-Legal Series, Vol. 3, No. 6, 2013).
• Javaid Rehman, Islam and Human Rights: Is Compatibility Achievable between the Sharia and Human Rights Law?, (January 2, 2014).
• Special Issue: Islamic Bioethics: Text and Context, [Table of Contents], Bioethics, Vol. 28, Issue 2 (Feb. 2014).

Earlier Appellate Decision In Texas Church Property Case Withdrawn In Light of New State Supreme Court Ruling

In Windwood Presbyterian Church, Inc. v. Presbyterian Church (USA), (TX App., Jan. 7, 2014), the Texas Court of Appeals withdrew an opinion it had issued in 2012 (see prior posting) in a dispute over ownership of church property and issued a new opinion taking account of a subsequent Texas Supreme Court ruling in the Masterson case that the "neutral principles of law" approach should be used in Texas in deciding church property cases. (See prior posting.) The Court of Appeals concluded:

... [T]he denominational church’s [summary judgment] motion was based solely on the contention that this property dispute should be resolved by applying the hierarchical deference approach and deferring to governing church authorities on the issue.... Because this was the only ground urged for summary judgment, under Masterson, the denominational church’s summary judgment must be reversed and remanded to the trial court.