Abuse Suit Against Camden Diocese Survives Dismissal Motion

In Shanahan v. Diocese of Camden, (D NJ, June 27, 2013),  a New Jersey federal district court refused to dismiss a suit against the Catholic Diocese of Camden brought by plaintiff who claims that she was sexually abused as a child in 1980-1981 on 10 o 15 occasions by an ordained Catholic priest, Fr. Thomas Harkins. The suit claims that the Diocese is liable under New Jersey’s Child Sexual Abuse Act; for negligent retention and supervision; and for breach of fiduciary duty. Courthouse News Service reports on the decision.

Catholic Health Association Accepts Obama Administration Compromise On Contraceptive Coverage Mandate

AP reports that the Catholic Health Association (CHA)-- the umbrella group for 600 Catholic hospitals and 1400 other Catholic health facilities-- has concluded that it can accept the Obama administration's compromise under the Affordable Care Act on contraceptive coverage for employees.  The compromise as set out in final rules issued on June 28 provides that religiously sponsored hospitals and similar facilities will not need to arrange or pay for coverage to which they object. Instead coverage will be separately provided to employees directly from insurance companies and plan administrators. In its statement, CHA acknowledged that its position is more accepting of the compromise that the U.S. Conference of Catholic Bishops has been. (USCCB July 3 statement).

Egypt's Interim Constitutional Declaration Shows Influence of Salafist Al-Nour Party

According to Ahram Online, on Monday night Egypt's new interim president Adly Mansour issued a 33-article  Interim Constitutional Declaration (full text in Arabic) that will remain in place during the current transitional period. Al-Monitor has published an analysis of the document's provisions. Here is what it has to say about the document's treatment of religion:

The constitutional declaration shows the strong leverage the Salafist Al-Nour party has on the transitional process.... [Three provisions of the former constitution] have been merged into a unique, new, Article 1...: 

“The Arab Republic Of Egypt is a state whose system is democratic, based on the principle of citizenship; Islam is the religion of the state; Arabic is its official language; and the principles of Islamic Sharia — which include its general evidences, its fundamental and jurisprudential rules, and its recognized sources in the doctrines of the people of the Sunna and Jam’aa (i.e., Sunnism) — are the main source of legislation.”...

...[T]he Salafists managed to keep the restriction of freedom of religious worship to the “three celestial religions” in Article 7 (i.e., Christianity, Islam and Judaism), which was not the case under the 1971 Constitution but became so in the 2012 version, under Salafist influence. The 1971 Constitution had also stated that freedom of belief was “absolute,” while the 2012 Constitution and the charter denoted it as “protected.” ...  One thing that has been dropped is the express reference to Al-Azhar’s role in expressing a supposedly non-binding opinion on Sharia matters pertaining to draft legislation....

The declaration retains the more flexible ban on parties that “discriminate on the basis of ... religion,” but does not return the outright ban on religion-based parties that existed in the 1971 Constitution. This is another move to accommodate Islamists into the transition.

ACLU Moves To Challenge Several Same-Sex Marriage Bans

The ACLU yesterday announced a broad initiative to obtain a U.S. Supreme Court ruling on the constitutionality of same-sex marriage, in the wake of the Court's dismissal on standing grounds of the California Proposition 8 appeal. The organization said in part:

Even before today's announcement of the ACLU's federal marriage lawsuits, there were seven cases with federal marriage claims pending all around the country. Today we are adding three more cases to this mix in order to ensure that strong, well-resourced cases are presented to the federal appeals courts most likely to give the issue a fair hearing.

One of the new cases is Whitewood v. Corbett, (MD PA, filed 7/9/2013) (full text of complaint) challenging Pennsylvania's refusal to permit same-sex marriages or recognize same-sex marriages from other states. In North Carolina, the ACLU is asking North Carolina's Attorney General to allow plaintiffs to add an additional claim challenging the state's same-sex marriage ban to an already pending lawsuit challenging the state's ban on second parent adoptions. (ACLU- NC press release). Finally, the Virginia ACLU announced a planned lawsuit, to be brought with Lambda Legal, challenging constitutional and statutory bans in Virginia on same-sex marriage.

European Court of Human Rights Protects Church Autonomy, Allowing Rejection of Priests' Trade Union

Yesterday in Sindicatul "Pastorul Cel Bun" v. Romania, (ECHR, July 9, 2013), the Grand Chamber of the European Court of Human Rights in a 11-6 decision upheld a Romanian County Court's denial of registration to a trade union formed  by priests of the Romanian Orthodox Church. The majority opinion, finding a permissible restriction on the right to join trade unions protected in Art. 11 of the European Convention on Human Rights, said in part:

136.... Where the organisation of the religious community is at issue, Article 9 of the Convention [freedom of thought, conscience and religion] must be interpreted in the light of Article 11, which safeguards associations against unjustified State interference.... [T]he right of believers to freedom of religion encompasses the expectation that the community will be allowed to function peacefully, free from arbitrary State intervention. The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is an issue at the very heart of the protection which Article 9 affords.

137.  In accordance with the principle of autonomy, the State is prohibited from obliging a religious community to admit new members or to exclude existing ones. Similarly, Article 9 of the Convention does not guarantee any right to dissent within a religious body; in the event of a disagreement over matters of doctrine or organisation between a religious community and one of its members, the individual’s freedom of religion is exercised through his freedom to leave the community....

165.... Respect for the autonomy of religious communities recognised by the State implies, in particular, that the State should accept the right of such communities to react, in accordance with their own rules and interests, to any dissident movements emerging within them that might pose a threat to their cohesion, image or unity.....

168.... [T]he County Court was simply applying the principle of the autonomy of religious communities; its refusal of the applicant union’s registration for failure to comply with the requirement of obtaining the archbishop’s permission was a direct consequence of the right of the religious community concerned to make its own organisational arrangements and to operate in accordance with the provisions of its Statute....

170.... the Statute of the Romanian Orthodox Church does not provide for an absolute ban on members of its clergy forming trade unions to protect their legitimate rights and interests. Accordingly, there is nothing to stop the applicant union’s members from availing themselves of their right under Article 11 of the Convention by forming an association of this kind that pursues aims compatible with the Church’s Statute and does not call into question the Church’s traditional hierarchical structure and decision-making procedures.....

The Court also issued a press release summarizing the decision.  A Becket Fund press release has more information on the case.

ABA Journal Calls For Nominations For 100 Best Legal Blogs

The ABA Journal yesterday invited nominations for its 2013 list of the 100 Best Legal Blogs.  It also encouraged bloggers to tell their readers about the competition.  Religion Clause has made the top 100 list four times in the last six years.  Any readers who might like to nominate Religion Clause (or some other legal blog) for the 2013 Top 100 list can do so at this link which provides a form to submit a "Friend of the Blawg Brief."  Nominations are due no later than August 9. Thanks in advance to any readers who find Religion Clause sufficiently valuable to nominate it.

Tax Evader, Claiming Religious Justifications, Sentenced to Over 8 Years In Prison

In Oregon yesterday, a federal judge sentenced a software entrepreneur to 8 years and 1 month in prison (followed by 3 years of supervised release) for tax evasion involving $7.1 million in taxes and penalties owed to the federal government. The Oregonian reports that defendant Chester Evan Davis invoked religious justifications for his refusal to pay taxes, saying:

My hands, my feet, my words, my ideas, my labor, my actions are all and have been given to the Lord for his glory. [Submitting a tax return would] put the God of this state above my God.

Davis hid assets from the government, attempted to file harassing liens against federal officials and tried to obtain arrest warrants against IRS employees. Much of the earnings of Davis' company came from contracts with the federal government.

Court Says It Lacks Jurisdiction To Stop Gitmo Force Feeding As Ramadan Nears, But President Could End Practice

In Dhiab v. Obama, (D DC, July 8, 2013), a D.C. federal district court denied for lack of jurisdiction a Guantanamo Bay detainee's petition (see prior posting) seeking to enjoin the government from continuing to force feed him, especially during the Ramadan fast period.  However, in denying the preliminary injunction, District Judge Gladys Kessler said:

Even though this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner's request, there is an individual who does have the authority to address the issue. In a speech on May 23, 2013, President Barack Obama stated "Look at the current situation, where we are force-feeding detainees who are holding a hunger strike. . . Is that who we are? Is that something that our founders foresaw? Is that the America we want to leave to our children? Our sense of justice is stronger than that."... 

Article II, Section 2 of the Constitution provides that "[t]he President shall be the Commander in Chief of the Army and Navy of the United States ... " It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority-- and power-- to directly address the issue of force-feeding of the detainees at Guantanamo Bay.

AP reports on the decision.

Missouri Diocese Settles Priest Abuse Case On Eve of Trial

According to yesterday's Kansas City Star, the Kansas City-St. Joseph Catholic Diocese yesterday settled a wrongful death lawsuit for $2.25 million as jury selection was under way in a Missouri state court in a suit by parents of sex abuse victim Brian Teeman who committed suicide at age 14.  The suicide in November 1983 followed repeated sexual abuse by Monsignor Thomas J. O’Brien who allegedly forced four altar boys to perform sexual acts in the sacristy at Nativity of Mary in Independence, Missouri. (Background.) As part of the settlement, the diocese will also place a bench honoring Teeman on the grounds of Nativity of the Blessed Virgin Mary Catholic Church in Independence. The diocese had planned to defend on the grounds that it did not know that Teeman had been abused or had committed suicide, and also on statute of limitations grounds. The Diocese yesterday issued a statement (full text) announcing the settlement.

President Sends Ramadan Greetings To Muslims In U.S. and Around the World

Yesterday the White House released a statement (full text) extending Ramadan greetings from the President and First Lady to Muslim communities in the U.S. and around the world. Ramadan begins today.  The President said in part:

In the United States, Ramadan is a reminder that millions of Muslim Americans enrich our nation each day—serving in our government, leading scientific breakthroughs, generating jobs and caring for our neighbors in need.  I have been honored to host an iftar dinner at the White House each of the past four years, and this year I look forward to welcoming Muslim Americans who are contributing to our country as entrepreneurs, activists and artists.

USCIRF Calls On Administration To Raise Religious Persecution Concerns With Chinese Officials

As reported by Reuters, this week top U.S. and Chinese officials will meet in Washington for the annual U.S.-China Strategic and Economic Dialogue.  The annual event began five years ago as a way for the two countries to manage their complex relationship.  Yesterday the U.S. Commission on International Religious Freedom issued a press release calling on U.S. officials to raise with the Chinese the cases of prominent religious prisoners and human rights lawyers in China. USCIRF said in part:

The continued confinement of thousands of political and religious prisoners in China violates that nation’s international obligations and its constitutional protections for human rights and religious freedom.

The USCIRF release highlights the cases of nine individuals-- Christian, Buddhist, Muslim and Falun Gong-- that it also featured in its 2013 Annual Report.

Justice Department Invokes Employer Mandate Delay In Argument For Dismissal of Liberty University's ACA Challenge

In May, the 4th Circuit heard oral arguments in Liberty University, Inc. v. Lew (see prior posting), a broader religious freedom challenge to the Affordable Care Act than most that are still pending. The suit claims that the ACA broadly permits federal funding of abortions and that it violates the Establishment Clause and equal protection clause because its narrow religious exemptions favor certain religious adherents. It also more narrowly challenges the contraceptive coverage mandate.  As previously reported, on July 2 the Treasury Department and the White House announced that the Administration was postponing enforcement of the Affordable Care Act's employer mandate until January 2015.  On July 3, the Justice Department filed a letter (full text) with the 4th Circuit reading in part:

Plaintiff ... has brought a pre-enforcement challenge to the large-employer tax that is authorized by 26 U.S.C. § 4980H. Our supplemental brief explained that this pre-enforcement challenge to Section 4980H is barred by the Anti-Injunction Act, and that it is also speculative whether Liberty University will owe a tax under Section 4980H.

We respectfully advise the Court that, yesterday, the Department of the Treasury announced that Section 4980H, which was due to take effect on January 1, 2014, will not take effect until January 1, 2015.... This one-year delay only underscores that Liberty University’s challenge is unripe.

On July 5, Liberty University filed a response (full text) which reads in part:

Liberty’s challenge to the entire employer mandate is not moot. Even if enforcement were delayed, which it is not, Liberty still must act now to prepare for the implementation of the Act, and that itself is an injury. Regarding the abortifacient mandate, the Final Rules published by the Departments of Labor, Treasury, and Health and Human Services last week made clear the government has no intentions of altering this mandate....

Finally, the reporting delay pertains solely to the penalties imposed pursuant to 26 U.S.C. § 4980H, and not the additional $100 per employee per day penalty from a separate section not subject to this delay. See 26 U.S.C. § 4980D.... 

Liberty Counsel issued a press release summarizing developments from its perspective.

Women of the Wall Supporters Say Israeli Police Violated Court Order In Handling Access To Western Wall

In Israel today, Women of the Wall supporters charge that police have violated a court order (see prior posting) by requiring the egalitarian women's prayer group to conduct their monthly Rosh Hodesh service at a site at the back of the Western Wall plaza instead of allowing them in the women's section closer to the Wall.  The Jerusalem Post reports that the normal women's prayer area was filled with 6 to 7 thousand ultra-Orthodox (haredi) high school girls who arrived ahead of some 250- 300 Women of the Wall supporters in order to block access to the Western Wall. The protesters' transportation was arranged by the United Torah Judaism political party. The two sides in the long-running dispute over whether ultra-Orthodox rabbis will control practices at Judaism's holy site exchanged charges.  Director of the Reform Movement in Israel Rabbi Gilad Kariv who supports WOW said:

[The police] have given a reward to a small group of haredi provocateurs and rabbis who deal in spreading baseless hatred. The Israel Police Force forgot that its job is to defend freedom of religion and prayer at the Western Wall and not to imprison those who are praying behind a police line.

Jerusalem  Deputy Mayor Doytsch who supports the haredi position said in a press release:

the Western Wall is a place that unites and binds all of the Jewish people. It is a great shame that on the New Month of Av a group of strange women come to the Western Wall in order to divide and cause arguments within the people.

Ramadan Begins Tomorrow, At Least For Those Using Astronomical Calculation Method

The Fiqh Council of North America, relying on astronomical calculations, announced that Ramadan begins tomorrow, July 9. Eid al Fitr, marking the end of the month long Ramadan fast will be on August 8. Some Muslims insist on setting the beginning of Ramadan by actual sighting of the new moon instead of by calculations. So in Canada, according to the Brampton Guardian, the Hilal Community of Metropolitan Toronto and Vicinity will follow that practice, while the Islamic Society of North American (ISNA) Canada follows the astronomical calculation method used by the Fiqh Council.

Recent Articles of Interest

From SSRN:

• Paul Benjamin Linton, Religious Freedom Claims and Defenses Under State Constitutions, (June 20, 2013).
• Muhammad Munir, Islamizing Custom or Customizing Islam: The Case of Female Genital Mutilation or Female Circumcision, (June 25, 2013).
• David B. Oppenheimer, Alvaro Oliveira,& Aaron Blumenthal, Religiosity and Same-Sex Marriage in the United States and Europe, (June 29, 2013).
• Samuel Flaks, Law, Religion, and Pluralism: The Thought and Experiences of Nathan Isaacs, (Touro Law Review, Vol. 29, No. 2, 2013).
• Michale J. Perry, Freedom of Conscience as Religious and Moral Freedom, (Journal of Law and Religion, Forthcoming).
• Haider Ala Hamoudi, Repugnancy in the Arab World, (Willamette Law Review, Vol. 48:427, 2012).
• Mark P. Franke, Ijara Under the Bankruptcy Code, (June 20, 2013).
• Dr. Julius B. Bertillo & Dr. Josefina Bertillo Salando, Principles and Practice of Islamic Finance Systems, (June 23, 2013).
• Dr. Julius B. Bertillo, Dr. Josefina Bertillo Salando & Dr. Florabel Ortega Nieva, Global Impact of Islamic Financial Systems in the Arab World, (June 30, 2013).

From SmartCILP:

• Allison M. Dussias, Friend, Foe, Frenemy: The United States and American Indian Religious Freedom, 90 Denver University Law Review 347-431 (2012).

Michigan Federal District Court Preliminarily Enjoins Ban On Health Benefits to Domestic Partners--Claiming Title of First to Cite Windsor

In Bassett v. Snyder, (ED MI, June 28, 2013), a Michigan federal district court issued a preliminary injunction barring enforcement of Michigan's Public Act 297 that prohibits public employers from providing medical and other fringe benefits to same-sex partners of state employees. Finding plaintiffs have standing, the court went on to hold that:

The plaintiffs have stated a viable and likely successful equal protection claim. They have provided strong evidence that the discriminatory classification established by Public Act 297 is not rationally related to a legitimate governmental purpose.

In reaching its conclusion, the court several times cited the then only 2-day old U.S. Supreme Court's decision in United States v. Windsor which struck down the federal Defense of Marriage Act.  This makes it the first case to cite the Windsor opinion, proving inaccurate my earlier posting that awarded the first-to-cite distinction to another Michigan judge in a case denying dismissal of a challenge to Michigan's ban on adoptions by same-sex couples. ACLU issued a press release announcing the decision. [Thanks to Michael Worley for the lead.]

Buddhist Temple Area In India Hit By Terrorist Explosions

Times of India reports that a series of nine terrorist explosions hit the world-famous Buddhist Mahabodhi Temple complex in the Indian town of Bodh Gaya today. Police suspect the  Indian Mujahideen were responsible for the attack in which two tourists, including a monk from Myanmar, were injured.

Recent Prisoner Free Exercise Cases

In Quintero v. Palmer, 2013 U.S. Dist. LEXIS 92831 (D NV, July 1, 2013), a Nevada federal district court permitted a Catholic inmate to proceed (but not jointly with other inmates) with his complaint that group rosary services were not permitted, he was threatened with disciplinary action for writing the local Catholic bishop and that the mail room rejected his subscriptions to two Catholic periodicals.

In Gibson v. Yackeren, 2013 U.S. Dist. LEXIS 92930 (WD NY. June 30, 2013), a New York federal district court allowed an inmate to proceed with his lawsuit charging that the prison's Jewish chaplain wrongly refused to change his religious designation to Judaism, thereby restricting his ability to practice his religion.

In Israel, Ultra-Orthodox Abuse Haredi Military Enlistees

The New York Times yesterday reported on the campaign within the ultra-Orthodox (Haredi) community in Israel to dissuade men from enlisting in the country's military. Traditionalists, feeling pressure from the Israeli government's moves to eliminate large scale haredi draft exemptions, are moving to marginalize and abuse those who have enlisted in existing programs, and to discredit military service. The article, titled Service Brings Scorn to Israel’s Ultra-Orthodox Enlistees reports in part:

Crude, comics-style posters have appeared in recent weeks on billboards across ultra-Orthodox neighborhoods nationwide portraying those soldiers, who volunteered under programs meant to attract Haredim, as fat, bearded, gun-toting caricatures in uniform snatching terrified Haredi children off the streets.....

Brig. Gen. Gadi Agmon, from the Israeli military’s human resources branch, told a parliamentary committee here last week that the well-orchestrated campaign was no less vicious in style than that of Der Stürmer, the Nazi-era propaganda organ notorious for its anti-Semitic caricatures.....

Haredi soldiers have been verbally abused, spit on and humiliated while walking through their neighborhoods all over Israel. Some have been attacked with stones, or their car tires have been slashed. The children of others have been rejected by local educational institutions, and there are growing fears that enlisting could harm the marriage prospects of their siblings.

Thai Anti-Money Laundering Office Issues Freeze On Buddhist Monk's Assets

In Thailand earlier this week, the country's Anti-Money Laundering Office issued an order banning a Buddhist monk and his associates from transferring any assets out of their 16 bank accounts.  According to the Bangkok Post (July 3) and the Huffington Post (July 4), Luang Pu Nen Kham Chattiko, abbot of the Khantitham forest monastery, came under investigation after a widely viewed YouTube video showed him in a private jet wearing expensive accessories. The bank accounts at issue have been used for transactions amounting to 200 million bhat ($6.4 million US) each day. A Facebook group that called for investigation of the monk suspects that he has misused temple contributions.