New York High Court Upholds Women's Health Act Under New State Constitutional Test

Yesterday in Catholic Charities of the Diocese of Albany v. Serio, NY Ct. App., Oct. 19, 2006), New York's highest court upheld a provision in the state's Women's Health and Wellness Act (WHWA) that requires faith-based organization to include contraceptive coverage for women in any prescription plan that they offer employees. (See prior posting.) The statute includes an exemption for most churches and religious schools where contraception is contrary to the institution's religious tenets. However, the exemption does not cover religiously affiliated social service agencies or hospitals. In this case, a group of ten faith-based social service agencies claimed that the law requires them to violate their religious beliefs by supporting conduct they believe to be sinful. However the court rejected both federal and state constitutional challenges to the law.

The court held that a First Amendment free exercise challenge failed under the Smith test, since this was a neutral law of general applicability. The fact that it exempts a narrow group of religious institutions from its coverage does not make it non-neutral. The more important part of the decision was the court's creation of a new test for free exercise of religion claims under Art. I, Sec. 3 of the New York constitution-- a test that is more protective of religion than the U.S. Supreme Court's Smith decision, but less protective than a "strict scrutiny" rule.

The court held that when general legislation creates an incidental burden on the free exercise of religion, "substantial deference is due the Legislature, and ... the party claiming an exemption bears the burden of showing that the challenged legislation, as applied to that party, is an unreasonable interference with religious freedom." In the court's view, plaintiffs here failed to show that the WHWA imposed an unreasonable interference. The state has a substantial interest in providing women with health care and institutions could ultimately avoid violating their religious principles by not offering prescription drug coverage at all. The court said that it would be a more difficult case if these institutions only hired employees who shared their views on the sinfulness of contraception.

Today's New York Law Journal carries an extensive analysis of the case.

Canadian Marriage Commissioner Appeals Gay-Marriage Requirement

LifeSite News yesterday reported on a case pending in a Manitoba (Canada) Court of Queen's Bench brought by a former provincial marriage commissioner who was forced to surrender his license after he refused to perform same-sex marriages. After the legalization of same-sex unions in Canada in 2004, Manitoba adopted a policy requiring commissioners to perform them. However Ken Kisilowsky says that the policy violates his evangelical Christian beliefs. Clergy are not required to perform same-sex marriage, but others who hold licenses as marriage commissioners are. After the Manitoba Human Rights Commission rejected his religious discrimination claim, he filed the pending appeal. A number of marriage commissioners in Manitoba, Saskatchewan, Newfoundland and British Columbia have resigned over similar requirements. [Thanks to Alliance Alert for the lead.]

Missouri School Board Asked To Reinstitute "Christmas" Break

In Strafford, Missouri, supported by 30 people in attendance at the meeting, Dee Wampler last week asked the Strafford School District to change the name of "Winter Break" to "Christmas Break". The Springfield, Missouri News Leader reported today that Wampler told the board: "I'm not here today to say this is a religious thing. I'm saying this is our history, our national tradition, that we should recognize." However, others clearly thought it was a religious issue. Dennis Gromer, husband of a Strafford teacher and a local said, "This is a chance for us as Christians to make a stand on what we say that we stand for." No action will be taken until the Board discusses next year's calendar at its January meeting.

IRS Complaint Filed Against Church For Pastor's Political Endorsement

Citizens for Responsibility and Ethics has filed a complaint with the Internal Revenue Service against a Brooklyn Park, Minnesota church alleging that the church violated the terms of its tax exempt status when its minister personally endorsed a Congressional candidate from the pulpit last Saturday night. Yesterday the Associated Press reported that Rev. Mac Hammond of the Living Word Christian Center says that he misunderstood IRS guidelines, and says that this will not happen again. Speaking at the church, Republican candidate Michele Bachmann said that God had called on her to run for Congress. Videos of Bachmann's speech at the church can be viewed on YouTube.

New York Court of Claims Lacks Jurisdiction Over RLUIPA Cases

In a decision handed down two months ago, the New York State Court of Claims held that it lacks jurisdiction over a damage claim brought under the Religious Land Use and Institutionalized Persons Act alleging that a state prisoner's right to religious freedom was violated. In Gill v. State of New York, (NY Ct. Cl., Aug. 28, 2006), the court held that while state courts have concurrent jurisdiction with federal courts to adjudicate RLUIPA claims, New York law has not given jurisdiction in such cases to the Court of Claims. The court also held that damages from the state are not available for a violation of the New York constitution's protection of free exercise of religion, and that the state Supreme Courts, and not the Court of Claims, have jurisdiction over violations of New York's Correction Law, Sec. 610, that protects the free exercise of religion by prison inmates.

European Court OKs Turkish School's Required Photo Without Headscarf

On Monday, the European Court of Human Rights rejected an attack on regulations promulgated by Turkey's Higher Education Council, according to a report in Zaman. After losing in Turkey's administrative courts and State Council, Emine Arac, a student at the Marmara University Theology Faculty, appealed to the European Court claiming that her school required her to submit a picture of herself without her headscarf when she registered for classes. However the court held that the requirement does not violate the protections for religion and expression, or infringe the right to an education, guaranteed by the European Convention on Human Rights.

Christian Agency Entitled To Hire On Basis of Religion Under Title VII

In Jackson v. Light of Life Ministries, Inc., 2006 U.S. Dist. LEXIS 75265 (WD PA, Oct. 16, 2006), a Pennsylvania federal district court rejected a Title VII religious discrimination claim that was brought by a part-time program aide at a Christian social service agency that provided food, shelter and outreach to the homeless. Raymond Jackson, a Jehovah's Witness, claimed that he was not hired full-time because of his religion, and then was fired in retaliation for filing an EEOC complaint. The court found that Light of Life was clearly a religious organization entitled to hire on the basis of religion under Title VII, and that the exemption applied even though Jackson's job did not require him to engage in religious counseling or religious activities.

Politician Promises Restoring Of Land To Bulgarian Orthodox Church

In Bulgaria, popular nationalist politician Volen Siderov, chairman of the National Union Attack party, recently met with the acting head of the Bulgarian Orthodox Church, Metropolitan Bishop Kiril, promising legislation to restore properties of the Church that were nationalized in 1945. The Sofia Weekly reported on Tuesday that Siderov and the Bishop have also discussed introducing religious studies in schools, and proposals to make the Orthodox Church Bulgaria's official religion.

DC Circuit Upholds Terrorist Designation Of Jewish Website

On Tuesday, the U.S. Court of Appeals for the DC Circuit upheld the Secretary of State's decision to designate Kahane Chai as a Foreign Terrorist Organization and to designate its website, Kahane.org, as an alias of the organization. In Kahane Chai v. Department of State, (DC Cir., Oct. 17, 2006), among other things, the court rejected claims by Kahane.org that the government had discriminated against it on religious grounds because websites of other Foreign Terrorist Organizations were not targeted. Jurist yesterday reported on the decision.

Muslim Scholars Write Pope On His Regensburg Speech

Earlier this week, 38 Muslim scholars from 20 countries-- some of the who are also government officials-- sent a letter to Pope Benedict XVI criticizing the interpretation of Islam in the Pope's recent speech at the University of Regensburg, in Germany. A report by the Catholic News Services points out that one focus of the scholars' letter was on the Pope's remarks about the concept of jihad. The letter also said to the Pope: "We share your desire for frank and sincere dialogue, and recognize its importance in an increasingly interconnected world. Upon this sincere and frank dialogue we hope to continue to build peaceful and friendly relationships based upon mutual respect, justice, and what is common in essence in our shared Abrahamic tradition." The full text of the letter, and the list of its signers, has been published by Independent Catholic News.

Air Force Changes Chaplain Guidelines As Mandated By Congress

As a previous posting notes, last month, a Conference Committee report on the Defense Authorization Act called for both the Air Force and the Navy to repeal their recent regulations governing the activity of chaplains and reinstate policies from earlier rules. Now Jews On First reports that on October 2, three days after Congress passed and the President signed the Defense Appropriations Act, the Air Force issued new guidelines for chaplains. The new rules appear to implement the mandate to reinstate policies from the Air Force's 1999 guidelines. The guidelines now provide that the Chaplain Service "requires awareness of, and sensitivity to, the diverse religious needs of Air Force members". They define the Chaplain Service's Global Ministry as one that is sensitive to the "religiously pluralistic environment" in which it operates, and state that "chaplains adhere to the requirements of their endorsing religious organizations while providing for the spiritual and religious needs of all Air Force members, their families, and other authorized personnel".

However, according to the same report by Jews On First, Mikey Weinstein, president of the Military Religious Freedom Foundation, charges that "Air Force leadership went about issuing these [new] guidelines in a subversive manner, without engaging in an open dialogue about the proper role of religion and chaplains within the Air Force."

Limitations Issues In Priest Abuse Case Decided

Last month, an Illinois appellate court, after a rehearing, filed a modified opinion in a priest sexual abuse case that decides interesting questions relating to statute of limitations issues. In Softcheck v. Imesch, (IL 3d Dist. App., Sept. 1, 2006), the court held that 2003 amendments to Illinois' statute of limitations cannot apply retroactively to revive claims for which the prior limitations period had run before 2003. In a 2-1 decision, the court held that the prior statute of limitations had not been tolled under the discovery rule. Plaintiffs' allegations that they did not, until recently, realize the wrongfulness of defendants' conduct were insufficient to prevent the statute from running. Finally, the court held that it was not being asked to unconstitutionally pass on the validity of church doctrine by allegations that defendant priests assured plaintiffs that instructions of the Church were infallible and complying with directions of priests would be beneficial. The original appellate decision had been handed down in January.

Minneapolis Bus Driver Can Avoid Busses With Offensive Ad

The McClatchy Newspapers yesterday reported on a decision by Minneapolis (MN) transit officials to accommodate religious beliefs of a bus driver. The driver objected on religious grounds to an ad carried on some 25 of the city's 150 busses. The ad promotes a local magazine aimed at gay, lesbian, bisexual and transgendered readers. An internal memo by the Transit Authority gives the employee permission to refrain from driving any of the busses that carry the offensive ad. The decision is of particular interest in light of last month's decision by Minneapolis-St. Paul airport officials to accommodate Muslim cab drivers who object to transporting passengers who bring alcohol in the cab.

Rabbis Seek Move To Jewish Religious Courts For Civil Cases In Israel

In Israel yesterday, a group of rabbis and experts in Jewish law launched "Gazit", a chain of nine Jewish religious courts that they hope will replace the nation's civil courts. Today's Jerusalem Post says that the organizers hope that tort and contract disputes will be settled according to Jewish law in these courts instead of in civil courts under Israeli civil law. They envision the Jewish law courts being used by both Jews and non-Jews. Currently the decisions of these courts will already be recognized by civil courts in the same way that decisions of other arbitral bodies are enforced. Experts say that for this initiative to succeed, issues relating to testimony of women and of non-Jews in Jewish religious courts will need to be worked out.

California Courts Hear Arguments Over Cross and Constitution

Two separate appellate courts in California yesterday heard arguments in cases involving challenges to alleged unconstitutional uses of a cross by local authorities. In Pasadena, a panel of the U.S. 9th Circuit Court of Appeals heard arguments in a case challenging a 2004 decision by Los Angeles county to remove a cross from the county's official seal. Today's Los Angeles Daily Bulletin reports that the suit was filed by the Thomas More Law Center on behalf of county Department of Public Works employee. He alleges that the change in the county's seal violated the Constitution by conveying a state-sponsored message of disapproval and hostility toward Christianity. The county has already spent $700,000 replacing the old seal with the new one that features a mission and an American Indian.

Meanwhile, in a state appellate court in San Diego, oral arguments were being held on one aspect of the long-running dispute over the Mt. Soledad cross. The San Diego Union Tribune today reports that the "lively" two-hour oral argument focused on a 2005 trial court ruling that Proposition A-- a voter initiative transferring land under the Mt. Soledad cross to the federal government-- was unconstitutional. The lower court had found that the voters had intended to aid religion in violation of California's constitutional provisions prohibiting such aid or favoritism.

Indiana Released Time Program Challenged

In Morgan County, Indiana, a federal lawsuit has been filed by an elementary school parent challenging the Weekday Religious Education Program offered to Neil Armstrong Elementary School students. IndyStar today reports on the litigation, filed through the ACLU of Indiana. The complaint (full text) alleges that the religious classes are offered from a trailer on school property, and that school officials monitor enrollment and single out students who elect not to participate. Mary Parker, an adviser to Morgan County Schools on the program, said that the trailer is on the edge of school grounds for convenience, and that utilities and other costs are paid by the non-profit group offering the program. However, she said that if necessary to avoid controversy, the location of the program would be moved. 1500 3rd and 4th graders in Morgan and Adams counties participate in the one-hour-per-week Christian education program.

Requiring Midwifery License Might Violate Religious Freedom

A Florida state appellate court has held that Linda and Tanya McGlade, convicted of practicing midwifery without a license, may be able to challenge their convictions under Florida's Religious Freedom Restoration Act. The women sought to post bond pending appeal of their convictions, but the trial court refused, according to yesterday's Manatee Herald. Bond is allowed under Florida law (Title XLVII, Sec. 903.132) only if the appeal is "in good faith on grounds not frivolous but fairly debatable". The appellate court reversed the denial of bond, saying that the Religious Freedom Restoration Act is a reasonable, arguable ground for the appeal by the women who had been sentenced to 30 months in prison in the case that involved the death of the mother whose delivery they assisted.

UPDATE: Saturday's Manatee Herald reported that trial judge Edward Nicholas has refused to grant release to the McGlades, despite the appellate court ruling. Nicholas on Thursday refused to permit the women to post bond because he believes that they would likely continue their illegal activity if released. Defense attorney Colleen Glenn filed an emergency motion with the appellate court on Friday to reverse the denial. Saturday's Sarasota Herald Tribune has more background on the case. The woman whose childbirth was aided by the McGlades was a relative. The McGlades believe that the licensing law was not meant to apply to that kind of situation.

Recent Prisoner Cases On Religious Rights

In Campbell v. Alameida, 2006 U.S. Dist. LEXIS 73111 (ND CA, Sept. 25, 2006), a California federal district court rejected an inmate’s claims that the refusal to permit him to purchase and keep religious oils in his cell violated his rights under the 1st and 14th Amendments. It found that while the refusal may have violated his rights under RLUIPA, defendants had qualified immunity from damages, and no injunctive relief was available because now prison authorities were permitting plaintiff to have the requested oils.

In Jesus Christ Prison Ministry v. California Department of Corrections, 2006 U.S. Dist. LEXIS 73813 (ED CA, Sept. 28, 2006), a federal magistrate judge ruled that a California prison’s policy of permitting religious literature, audio tapes and CDs only from approved vendors violates the free speech and free exercise rights, as well as rights under RLUIPA, of prisoners, as well as the rights of non-approved organizations wishing to distribute religious literature.

In Long v. Boehnemann, 2006 U.S. Dist. LEXIS 74532 (SD TX, Oct. 12, 2006), a Texas federal district court dismissed a suit alleging that a county jail’s kitchen manager denied plaintiff reasonable provisions during Ramadan. The court found that plaintiff had failed to exhaust his administrative remedies, that his transfer made his claims for injunctive relief moot, that federal law bars monetary damages absent a physical injury, that no First Amendment violation was shown, and that RLUIPA allows recovery only against governmental entities.

In Tayr v. Wisconsin Department of Corrections, 2006 U.S. Dist. LEXIS 74835 (ED WI, Sept. 29, 2006), a Wisconsin federal district court rejected a Muslim prisoner's claims that he was denied the right to use his religious name and was denied a religious diet, in violation of the First Amendment and RLUIPA. The court permitted claims relating to the denial of the use of religious property to move ahead.

Court Invalidates Eagle Protection Act Implementation As RFRA Violation

Last week, a federal district court in Wyoming granted a motion to dismiss criminal charges that had been filed against Winslow Friday, a member of the Northern Arapaho Indian Tribe. In United States v. Friday, (Case No. 05-CR-260-D, Oct. 13, 2006), the court held that the government's implementation of the Bald and Golden Eagle Protection Act (BGEPA) violates the defendant's right to the free exercise of religion as protected by the Religious Freedom Restoration Act.

The BGEPA provides for a permitting process for the taking of eagles for Native American religious purposes. The government, however, discourages requests for permits and issues almost none. The court held that the government failed to demonstrate that this policy is the least restrictive means of advancing its interest in preserving eagle populations and protecting Native American culture, particularly in light of the recent recovery of the species. It concluded:

Although the Government professes respect and accommodation of the religious practices of Native Americans, its actions show callous indifference to such practices. It is clear to this Court that the Government has no intention of accommodating the religious beliefs of Native Americans except on its own terms and in its own good time.

The court also upheld Friday's standing to challenge the futile permitting process even though he never applied for a permit.

The full text of the case is available through PACER. The Jackson Hole (WY) Star Tribune today reported on the court's decision. (Also see prior related posting.)

UPDATE: The decision is now available on LEXIS at 2006 U.S. Dist. LEXIS 74970.

Virginia Ballot Will Have Proposal To Permit Churches To Incorporate

Virginia voters this November will be asked to approve an amendment (full text) repealing a provision in Art. IV, Sec. 14 of the state's constitution that prohibits the legislature from granting a charter of incorporation to any church or religious denomination. Today's Hampton Roads Pilot reports that the vote will have little practical significance since a federal District Court in 2002 ruled that the ban violates the First Amendment's guarantee of free exercise of religion.