Obama's Signing Statement Criticizes Conscience Provisions In Defense Bill

Yesterday the President signed H.R. 4310, the 2013 National Defense Authorization Act.  As previously reported, Section 533 of the Act added protections for conscience rights of military members and chaplains. In his signing statement (full text), the President criticized those provisions, apparently concerned that they will be invoked to limit the rights of gay and lesbian members of the armed forces.  The President said:

Section 533 is an unnecessary and ill-advised provision, as the military already appropriately protects the freedom of conscience of chaplains and service members. The Secretary of Defense will ensure that the implementing regulations do not permit or condone discriminatory actions that compromise good order and discipline or otherwise violate military codes of conduct. My Administration remains fully committed to continuing the successful implementation of the repeal of Don't Ask, Don't Tell, and to protecting the rights of gay and lesbian service members; Section 533 will not alter that.

The Chaplain Alliance for Religious Liberty, an organization of chaplain endorsers, responded with a press release which said in part:

The purpose of these provisions is simply to protect the religious liberties of military chaplains who hold to Biblical views concerning sexuality. Several chaplains have already been faced with requests from same-sex couples to have ceremonies in military chapels. Every member of our armed forces should be able to serve without surrendering their beliefs.

[Thanks to Blog from the Capital for the lead.]

Egyptian Official Invites Egyptian Jews In Israel To Return To Egypt

As reported by the Jerusalem Post last week, in Egypt high-ranking Muslim Brotherhood official Essam el-Erian called in a television interview for Egyptian Jews living in Israel to return to Egypt and leave Israel to the Palestinians.  In an interview last month on Dream TV, el-Erian said: "Egyptian Jews should refuse to live under a brutal, bloody and racist occupation stained with war crimes against humanity." Israel's Channel 10, reporting on el-Erian's remarks had a sardonic comment: "After thousands of years since Egyptian Jews left Egypt, finally someone has called for their return." However Al Arabiya characterized Channel 10's comment as expressing "content" over the invitation. Yesterday, AP reported on the spectrum of reactions in Egypt to el-Erian's comments. President Morsi's office dissociated Morsi from the remarks. Some in Egypt saw the invitation as an attempt to create an appearance of tolerance while other minorities, particularly Coptic Christians, are increasingly worried about persecution. Some feared Morsi's statement that every Egyptian has a right to live in Egypt could open the door to claims for compensation by Egyptian Jews in Israel for property taken from them or left behind. Others saw this as part of the attempt by the Muslim Brotherhood to reconcile its historic anti-Israel and anti-Jewish pronouncements with its new responsibilities to govern Egypt. A few in Egypt called for a more serious look at Egypt's past treatment of its Jewish community.

Illinois Federal District Court, Bound By 7th Circuit Precedent, Grants Preliminary Injunction In Contraceptive Mandate Challenge

In Triune Health Group, Inc. v. U.S. Department of Health and Human Services, (ND IL, Jan. 3, 2012), an Illinois federal district court granted a preliminary injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate against a for-profit company that that facilitates re-entry of injured workers into the workforce. The company's Catholic owners believe that providing their employees with insurance coverage that facilitate abortion, contraception and sterilization constitutes "cooperation with evil that violates the laws of God."  The court concluded that it was bound by the 7th Circuit's decision in Korte v. Sebelius which granted a for-profit employer a preliminary injunction pending appeal in a similar challenge. (See prior posting.) The granting of the preliminary injunction follows the court's denial of a temporary restraining order on Dec. 26. LifeNews reports on the granting of the injunction.

Civil Court May Enforce Pre-Nup Penalizing Husband For Failing To Grant Wife A Jewish Divorce

In Light v. Light, 2012 Conn. Super. LEXIS 2967 (CT Super, Dec. 6, 2012), a Connecticut trial court held that it has jurisdiction to enforce a pre-nuptial agreement requiring a husband, in case of a separation, to pay his wife $100 per day until the husband grants the wife a Jewish religious divorce (get). Rejecting the husband's contention that the prenuptial agreement was a religious document that is not enforceable by a secular court, the court held that it can adjudicate the claim using neutral principles of law:

a determination as to whether the prenuptial agreement is enforceable would not require the court to delve into religious issues. Determining whether the defendant owes the plaintiff the specified sum of money does not require the court to evaluate the proprieties of religious teachings. Rather, the relief sought by the plaintiff is simply to compel the defendant to perform a secular obligation, i.e., spousal support payments, to which he contractually bound himself.

Michigan Federal District Court Rejects Company's Contraceptive Mandate Challenge; 6th Circuit Refuses Stay Pending Appeal

In Autocam Corp. v. Sebelius, (WD MI, Dec. 24, 2012), a Michigan federal district court refused to grant a preliminary injunction to two affiliated manufacturing companies (one a corporation and one an LLC) or their owners who object that the contraception coverage mandate under the Affordable Care Act violates their religious liberty. The court rejected plaintiffs' 1st Amendment free exercise claim, finding that the mandate is a neutral rule of general applicability.  Moving to the Religious Freedom Restoration Act, the court concluded that plaintiffs are unlikely to succeed on their claim that the mandate imposes a substantial burden on their free exercise rights, in part because the company already contributes up to $1500 to each employee for a health savings account whose funds can be used for contraception. The court added:

Plaintiffs argue, in essence, that the Court cannot look beyond their sincerely held  assertion  of  a religiously based objection to the mandate to  assess whether it actually functions as a substantial burden on the exercise of religion. But if accepted, this theory would mean that every government regulation could be subject to the compelling interest and narrowest possible means test of RFRA based simply on an asserted religious basis for objection. This would subject virtually every government action to a potential private veto based on a person’s ability to articulate a sincerely held objection tied in some rational way to a particular religious belief.  Such a rule would paralyze the normal process of governing, and threaten to replace a generally uniform pattern of economic and social regulation with a patchwork array of theocratic fiefdoms.

The court also rejected plaintiffs' free speech claim. Finally the court concluded that plaintiffs had not show the likelihood of irreparable harm for purposes of obtaining a preliminary injunction, since they can continue to refuse to offer contraception coverage while the case is pending. The tax penalty they will incur if they ultimately lose will likely not be assessed or paid until after the case is decided.

Plaintiffs appealed the district court's decision to the 6th Circuit and sought an injunction pending completion of the appeal. In a 2-1 decision,the 6th Circuit denied the injunction request but agreed to expedite the appeal of the district court's decision. In Autocam Corp. v. Sebelius, (6th Cir., Dec. 28, 2012), the majority concluded that plaintiffs had not shown a strong likelihood of success on the merits.  Judge Rogers, dissenting, disagreed, saying:

Plaintiffs assert that it would violate their sincere religious beliefs to direct the company that they control to cut checks to pay directly for contraceptive services. They are okay, however, with giving discretionary healthcare money to their employees, who may then choose to buy such services.  If walking this fine line is sincerely accepted as a condition for salvation, it is not up to the government to say that the line is too fine.  Lots of religious lines are fine.  Of course government is not bound by every religious fine line.  But RFRA requires that the government interest be strong before forcing people to cross the line.

On Dec. 31, the  6th Circuit denied plaintiffs' motion for reconsideration. (See prior related posting.) [Thanks to Melissa Rogers for the lead.]

Fiscal Cliff Bill Phases Out High Earners' Itemized Deductions Including Charitable Deductions

As reported by the Wall Street Journal, the legislation to avert the fiscal cliff passed by Congress on Tuesday  (full text of H.R. 8) restores the phase out of itemized deductions for high income individuals. Section 101 of the bill amends current Internal Revenue Code Sec. 68 to accomplish this result. Under the new law, the total of itemized deductions that may be taken by individuals earning over $250,000 and married couples earning over $300,000 will be reduced by 3% of the amount their adjusted gross income exceeds the $250,000 or $300,000 threshold until 80% of the itemized deductions are lost. The itemized deductions impacted include charitable deductions to non-profits, including churches and other religious organizations.  Some worry that the new provision will reduce the amount of charitable giving.

Belgian Court Orders 2 Boys Admitted To Orthodox Jewish Girls' School

YNet News and JTA have both reported recently on an unusual Dec. 21 ruling by a court in Antwerp, Belgium ordering an Orthodox Jewish school for girls affiliated with the Belz Hasidic movement to admit two boys to study there. No Jewish school wanted to admit the students because their father, Moshe Friedman, was formerly a member of the anti-Zionist Neturei Karta, an ultra-Orthodox Jewish group that believes Jews are to have their own state only when the messiah comes. In 2006, Friedman attended a Holocaust denial conference in Iran and was photographed kissing Iranian President Mahmoud Ahmadinejad.  So Friedman latched onto a recent Belgian court decision barring gender discrimination in schools that receive government funding, as most Jewish schools in Belgium do. The court ordered his sons, age 7 and 11, admitted to Bnos Yerushalayim school even though the school claimed that Orthodox Judaism requires separation between boys and girls in schools and argued that there are no male students, teachers or boy's bathrooms in the school. Under the court ruling, which is temporary until a determination is made as to where the boys will attend next school year, the school must pay a fine equivalent to $2600 (US) for each day the boys are not admitted. The school will likely appeal the decision.

Hawaiian Church Can Pursue RFRA Claim To Permit Use of Cannabis

In Oklevueha Native American Church of Hawaii v. Holder, (D HI, Dec.31, 2012), an Hawaii federal district court, in a case on remand from the 9th Circuit (see prior posting), permitted a church's Religious Freedom Restoration Act claim to proceed to challenge enforcement of the federal drug laws. The suit was brought by a church that uses cannabis in its religious ceremonies and by a spiritual leader who founded the church. The court however dismissed plaintiffs' claims under the American Indian Religious Freedom Act, the equal protection clause and the 1st Amendment's free exercise clause. Turtle Talk blog has links to the pleadings in the case.

New Russian Law Mandates Religion Course In Schools

The Moscow Times reported Monday that Russian President Vladimir Putin has signed a new education law passed by the Russian Parliament that, among other things, makes mandatory in all schools a course in fundamentals of religion. The law takes effect on Sept. 1, 2013.

Three Federal Lawsuits Focus On Ownership Of Rhode Island Synagogue's Historic Torah Ornaments

AP reported Monday on three interrelated lawsuits over a proposed sale of Torah finial bells by Newport, Rhode Island's historic Touro Synagogue.  The Torah adornments (known in Hebrew as rimonim) were made in the 1760's or 1770's by a Colonial silversmith.  In 2010, leaders of Touro Synagogue decided to try to sell the rimonim to endow a trust for maintenance of the historic synagogue and keeping a rabbi in residence, while assuring that the rimonim could be viewed by the public.  The rimonim are currently on loan to Boston's Museum of Fine Arts which offered to purchase them for $7.4 million. However, New York City's Congregation Shearith Israel claims that it owns Touro Synagogue, and it opposes the sale. In the mid-1800's Touro Synagogue fell into disrepair and Shearith Israel claims it took ownership of the synagogue, its cemetery and ritual objects.  Leaders of Touro Synagogue say that Shearith Israel merely become trustee for Touro.  In 1903, Touro signed a lease to rent its building from Shearith Israel for $1 per year. Now each side has filed suit in Rhode Island federal district court and Shearith Israel has also filed suit in federal district court in New York.  Shearith Israel wants the congregation removed from the Newport building because it says the congregation is violating the terms of the $1 per year lease by attempting to make the sale.  Touro wants the Massachusetts attorney general, as administrator of charitable trusts, to intervene. Meanwhile, the Museum of Fine Arts has withdrawn its offer to purchase the rimonim until the ownership issue is settled. A Rhode Island federal judge has scheduled a settlement conference in the litigation for tomorrow. Apparently a long-term lease of the rimonim to the museum is a possible compromise.

Montana High Court Upholds Extending Workers Comp Law To Hutterites

In Big Sky Colony, Inc. v. Montana Department of Labor and Industry, (MT Sup. Ct., Dec. 31, 2012), the Montana Supreme Court in a 4-3 decision upheld against constitutional attack amendments to the state's workers compensation law that brings Hutterite Colonies within the definition of those covered when their members perform agricultural, manufacturing or construction services even though members do not receive wages. Instead Hutterites receive food, shelter, clothing and medical care from the Colony.  The new law applies so long as the Colony receives remuneration from outsiders for member services. The majority rejected free exercise, establishment clause and equal protection challenges to the law, finding that the law is neutral in its application and does not single out religious beliefs.

Justice Rice, joined by Justices Cotter and Nelson, dissented arguing that the legislature "created a clear religious gerrymander" in response to complaints about Hutterite colonies competing with other Montana businesses without have to provide workers' compensation insurance. Justice Nelson also filed a separate dissent.  AP reported on the court's decision.

Student Can Move Ahead On Anti-Semitic Harassment Claims

In G.D.S. v. Northport-East Northport Union Free School District, 2012 U.S. Dist. LEXIS 182976 (ED NY, Dec. 22, 2012), a New York federal district court held that a 16-year old plaintiff had adequately stated a federal Equal Protection claim based on deliberate indifference in his suit against the school district in which he had formerly attended high school. Plaintiff alleged that he had been subjected to anti-Semitic harassment and bullying in person and on Facebook by classmates, and that school officials did nothing about the situation even though plaintiff furnished them detailed information about the problem and the names of the harassers. The harassment included numerous instances of mocking use of Holocaust references.  The court held plaintiff had also stated a claim for discrimination on the basis of "creed" under the New York Civil Rights Law.  However the court held that plaintiff's claim under the New York constitution should be dismissed, as should his claim for damages under the state's Human Rights Law.

Missouri Federal Court Issues TRO In Contraceptive Mandate Case, Invoking 1st Amendment As Well As RFRA

In Sharpe Holdings, Inc. v. United States Department of Health and Human Services, (ED MO, Dec. 31, 2012), a Missouri federal magistrate judge issued a temporary restraining order barring enforcement of the Affordable Care Act contraceptive coverage mandate to require a for-profit dairy farming and cheese making business to cover abortifacient devices ( Plan B, Ella and copper IUDs) and related counseling.  In addition to the company, plaintiffs in the case were Charles Sharpe, the founder-owner and CEO of the company, and two employees who "pay a portion of the required premiums and enjoy the benefits of the self-insured program."  In addition to concluding that under the Religious Freedom Restoration Act the mandate and its penalties would substantially burden plaintiffs' free exercise rights, the court held that for 1st Amendment purposes, the mandate is not a neutral law of general applicability:

Plaintiffs have shown to the court’s satisfaction for the purposes of these initial proceedings, that the ACA mandate is not generally applicable because it does not apply to grandfathered health plans, religious employers, or employers with fewer than fifty employees.  Specifically, plaintiffs argue that the ACA mandate’s exemptions clearly prefer secular purposes over religious purposes and some religious purposes over other religious purposes.  Burdens cannot be selectively imposed only on conduct motivated by religious belief.

Suit Seeks CIA's Report On CIA-NYPD Spying On U.S. Muslims

A federal lawsuit was filed last month by the Electronic Privacy Information Center seeking release under the Freedom of Information Act of a report (and related documents) by the CIA's Inspector General on CIA involvement in spying by the New York Police Department on American Muslims. The complaint (full text) in Electronic Privacy Information Center v. Central Intelligence Agency, (D DC, filed 12/20/2012) indicates that the CIA report grew out of investigative articles by Associated Press on NYPD collaboration with the CIA in photographing members of the Muslim community entering mosques, infiltrating Muslim student groups and conducting surveillance of Muslim stores and businesses. Huffington Post yesterday reported on the lawsuit. (See prior related posting.)

District Court Grants Domino's Pizza Founder Preliminary Injunction Against Contraceptive Mandate Enforcement

Another court has granted a preliminary injunction to a for-profit business and its owner, preventing enforcement against them of the Affordable Care Act contraceptive coverage mandate.  In Monaghan v. Sebelius, (ED MI, Dec. 30, 2012), a Michigan federal district court held that the property management company, Domino's Farms Corp., and its owner Thomas Monaghan (founder of Domino's Pizza) had adequately alleged that the mandate imposes a substantial burden on Monaghan's Catholic religious beliefs:

Monaghan contends that his compliance with the mandate would require him to violate his religious beliefs because the mandate forces him, and/or the corporation he controls, to pay for, provide, facilitate, or otherwise support contraception, sterilization and to some extent, abortion....

The Supreme Court has held that "putting substantial pressure  on an adherent  to modify his behavior and to violate his beliefs" substantially burdens a person’s exercise of religion.... [T]he Court is in no position to decide whether and to what extent Monaghan would violate his religious beliefs by complying with the mandate....  Other courts have assumed that a law substantially burdens a person’s free exercise of religion based on that person’s assertions.

The court went on to hold that at this point the government had not carried its burden under the Religious Freedom Restoration Act of showing that it had a compelling interest or used the least restrictive means in burdening plaintiff's free exercise. MLive reports on the decision. (See prior related posting.)

Happy New Year 2013!

Dear Religion Clause Readers:

Happy New Year! As we enter 2013, I want to again thank all of you who read Religion Clause-- both long time followers and those who have discovered the blog more recently. And thanks to all of you who send me leads or corrections. Your input is important in maintaining completeness and accuracy. I read all of your e-mails and comments and appreciate receiving them, even though time constraints often prevent me from replying individually. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want mentioned, I will be happy to honor that request if you let me know when sending me information.

Religion Clause's established format of neutrality, broad coverage and links to extensive primary source material has made it a widely-recognized authoritative source for keeping up on church-state and religious liberty developments around the world. Often Religion Clause carries a story well before mainstream media feature it.  I am pleased that my regular readers span the political and religious spectrum and include a large number of individuals working professionally dealing with church-state relations and religious liberty concerns, as well as journalists and those who teach in this area of law.

I am of course always considering whether any changes in format or coverage would make the blog more useful.  I welcome any suggestions you have. Feel free to post them as a comment to this blog entry, or to e-mail them to me at religionclause@gmail.com. The Sitemeter shows that Religion Clause has attracted over 1,337,500 visits since I created it in 2005. Around 194,700 of these visits came in 2012. That however is somewhat fewer visits than in 2011.  So I encourage you to recommend Religion Clause to others who might find it of interest, or to link to specific posts and share them on social media.

This year I reopened the Comment feature on Religion Clause, though it has not been widely used by readers so far.  Interested readers continue to have several ways to access Religion Clause—by directly connecting to the home page, connecting through a mobile device to a version formatted for Smart phones, subscribing to the RSS feed through any of the popular RSS readers, through e-mail subscriptions, on Kindle, through Twitter, through Facebook and on Newstex sources such as Lexis.  The Religion Clause sidebar has further information on these alternatives.  I also remind you that the sidebar contains links to a wealth of resources.

Best wishes for 2013!

Howard M. Friedman

Scotland Announces Consultation On Marriage Bill That Will Introduce Same-Sex Marriage and Other Changes

On Dec. 12, the government of Scotland announced a Consultation, i.e. published for public comment, a bill that would substantially amend Scotland's law on marriage.  The Marriage and Civil Partnership (Scotland) Bill would introduce same-sex marriage and the religious registration of civil partnerships. Other changes include ones that would allow non-religious belief bodies, such as the Humanist Society of Scotland, to solemnize marriages in "belief ceremonies." (The Dec. 30 Scotsman reports on this.) The Consultation Paper sets out the proposed changes in detail and seeks comment on them.  Section 12 of the Bill assures that provisions for same-sex marriage do not affect freedom of thought, conscience, religion and expression protected by the European Convention on Human Rights. According to the Consultation Paper:

The Lord Advocate (who has responsibility for prosecutions in Scotland) intends, in due course, to publish prosecutorial guidelines on allegations of breach of the peace and threatening or abusive behaviour arising out of opposition to same sex marriage.

The Consultation Paper also deals with treatment of same-sex marriage in schools. The Government plans to introduce a bill in Parliament in 2013.

Belgium Charging Church Of Scientology With Criminal Fraud and Other Offenses

RT News reported Saturday that prosecutors in Belgium have decided to attempt to label the Church of Scientology as a criminal organization and charge it with extortion, fraud, breach of privacy, and illegal practice of medicine. The charges grow out of an investigation begun four years ago into labor contracts used to recruit volunteers. Subpoenas have been issued in the case.

Recent Articles of Interest

From SSRN:

• Yitshak Cohen, The 'Or Sameah' – Halakhah and Jewish Law: R. Meir Simcha Hakohen's Writings on Maimonides' Code, (in Y. Cohen, The 'Or Sameah' – Halakhah and Jewish Law, Ben Gurion University Press, 2012).
• Christoph H.F. Meyer, Kanonistik im Zeitalter von Absolutismus und Aufklärung: Spielräume und Potentiale einer Disziplin im Spannungsfeld von Kirche, Staat und Publizität (Canon Law in the Age of Absolutism and Enlightenment: Scope and Potential of a Discipline between Church, State and Publicity), (Max Planck Institute for European Legal History No. 2012-06, Dec. 2012).
• Kevin P. Lee, The Firearm and the 'Culture of Death': Foundational Presuppositions and Fundamental Questions, (December 26, 2012).
• Sahar F. Aziz, The Muslim 'Veil' Post-9/11: Rethinking Women's Rights and Leadership, (Institute for Social Policy and Understanding Policy Brief, November 2012).
• K. Benson, Legal Pluralisms, Legal Border Zones: Shar'ia Law and Trans-Jurisdictional Migration in the United Kingdom, (Studia Sociologica IV (2012), Vol. 1  pp. 139–150).

Saudi Religious Police Raid Asian Diplomat's Christmas Party

Al-Akhbar reported last week that in Saudi Arabia, the religious police raided a Christmas party at the home of an Asian diplomat and detained at least 41 people for plotting to celebrate Christmas. It is reported that 41 Christians and 2 Muslims were at the party.  The host and the 2 Muslims were "severely intoxicated."  The Saudis have previously banned public Christmas celebrations, but have been ambiguous as to private celebrations. Saudi Arabia's head mufti has condemned invitations to Christmas or wedding celebrations, and a member of the Higher Council of Islamic scholars recently prohibited sending holiday wishes to "heretics" on Christmas or other Christian religious holidays.

USDA Releases Report On Indian Sacred Sites

On Dec. 6, the Department of Agriculture released a lengthy report titled USDA Policy and Procedures Review and Recommendations: Indian Sacred Sites. A 3-page background memo accompanying the report summarizes its findings:

[The report calls] for USDA and the U.S. Forest Service to work more closely with Tribal governments in the protection, respectful interpretation and appropriate access to American Indian and Alaska Native sacred sites on national forests and grasslands. The report recommends steps the Forest Service should take to strengthen the partnerships between the agency, Tribal governments, and American Indian and Alaska Native communities to help preserve America’s rich native traditions.

 Summit County (CO) Citizens Voice provides additional coverage of the report.

In Egypt, Salafists Sue Wealthy Newspaper Owner Over Cartoon Seen As Insulting To Prophet

Daily News Egypt reported last week that a lawsuit was filed by the National Centre for Defence of Freedoms (NCDF) in an Egyptian court against Naguib Sawiris, the owner of Al-Masry Al-Youm newspaper, and the newspaper's cartoonist Doaa El-Adl.  The suit, which has been referred to the chief prosecutor for investigation, revolves around a cartoon (reproduced on Cartoon Movement) depicting an Egyptian man with angel wings and a halo on a cloud with Adam and Eve telling them they would never have been expelled from heaven if they had voted in favor of the referendum. The suit claims the cartoon is insulting to the Prophet.  Apparently Salafist lawyer Khaled El-Masry, secretary-general of the NCDF, interpreted the cartoon as depicting the Prophet Muhammad. In the Air reports that defendant Naguib Sawiris is listed by Forbes as the second wealthiest man in Egypt. Earlier this year, Egyptian courts dismissed for lack of standing lawsuits by Salafist lawyers against Sawiris over another cartoon-- depicting Mickey Mouse with a beard and Minnie Mouse in a veil. (See prior posting.)

Recent Prisoner Free Exercise Cases

In Clark v. Cambria County Prison, 2012 U.S. Dist. LEXIS 179789 (WD PA, Dec. 20, 2012), a Pennsylvania federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 181044,  Nov. 15, 2012) and dismissed an inmate's complaint that his prison does not have separate Jehovah's Witness religious services.

In Davidson v. Masley, 2012 U.S. Dist. LEXIS 182293 (SD NY, Dec. 19, 2012), a New York federal district court refused to reconsider its dismissal for lack of prosecution of a suit by an inmate challenging the manner in which halal food is furnished to inmates at Rikers Island.

In Whittier v. Arpaio, 2012 U.S. Dist. LEXIS 182155 (D AZ, Dec. 27, 2012), an Arizona federal district court dismissed, with leave to amend, an inmate's complaint that he does not have access to church services because of his classification.

Court Grants Mennonite-Owned Business TRO In Challenge To Contraceptive Coverage Mandate

In Conestoga Wood Specialties Corp. v. Sebelius, (ED PA, Dec. 28, 2012), a Pennsylvania federal district court issued a 14-day temporary restraining order barring enforcement of the Affordable Care Act contraceptive coverage mandate against a cabinet and wood specialties company whose Mennonite owners object on religious grounds to furnishing coverage for contraceptives they consider abortifacients. (See prior posting.) The TRO is limited to "the  provision  of  insurance coverage  for  the contraceptive services to which Plaintiffs object on religious grounds." The court set a hearing on a preliminary injunction for Jan. 4.  In granting the TRO, the court said:

In light of the opinions of several courts favoring Plaintiffs’ position in this case, we find that Plaintiffs have demonstrated a reasonable probability of success on the merits of their RFRA  claim.  While  additional  evidence is  necessary to  determine  whether Plaintiffs’ likelihood of success is sufficient to justify an injunction for the duration of the litigation, we find it to be adequate to warrant temporary relief pending a preliminary injunction hearing.

Philadelphia Inquirer reports on the decision.

Missouri City's Ordinance Is Overbroad In Likely Covering KKK Leafleting

In Traditionalist American Knights of the Ku Klux Klan v. City of Desloge, Missouri, (ED MO, Dec. 27, 2012), a Missouri federal district court issued a preliminary injunction against enforcement of a Missouri city's anti-solicitation ordinance because it was drafted so broadly that it likely covers expressive conduct on sidewalks, curbs, medians, and alleyways, as well as on streets.  The court found the ordinance to be overbroad and not narrowly tailored to serve a significant governmental interest.  Plaintiffs in the case, a KKK chapter, wanted to hand out leaflets on topics such as as the impact of Shariah law on the United States, risks to "White Americans" from racially-motivated attacks, information about Klansmen, and risks posed by methamphetamine.

7th Circuit: Contraceptive Coverage Mandate Imposes Substantial Free Exercise Burden On Business Owners

The U.S. 7th Circuit Court of Appeals yesterday, in a 2-1 decision, issued an injunction pending appeal preventing enforcement of the Affordable Care Act contraceptive coverage mandate against a small for-profit construction company. The company's Catholic owners say the mandate violates their religious liberty.  In Korte v. Sebelius, (7th Cir., Dec. 28, 2012), the court explicitly disagreed with the 10th Circuit's holding last week in the Hobby Lobby case that the mandate did not impose a substantial burden on religious exercise. (See prior posting.)  The 7th Circuit majority said:

we think this misunderstands the substance of the claim. The religious‐liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services.... [T]he Kortes have established a reasonable likelihood of success on their claim that the contraception mandate imposes a substantial burden on their religious exercise.

In the case, an Illinois federal district court (see prior posting) had found no substantial burden, in part because the company's current health insurance plan covers contraceptives. Apparently plaintiffs were unaware of this until shortly before they filed the current lawsuit. The 7th Circuit majority said: "it is well‐established that a religious believer does not, by inadvertent nonobservance, forfeit or diminish his free‐exercise rights."

Judge Rovner dissented, concluding that plaintiffs had not shown either irreparable harm or a likelihood of success on the merits, saying:

What the Kortes wish to do is to preemptively declare that their company need not pay for insurance which covers particular types of medical care to which they object, despite the fact that neither the company nor its owners are involved with the decision to use particular services, nor do they write the checks to pay the providers for those services.

American Center for Law and Justice issued a press release announcing the decision. Reuters today reports on the decision.

Two Suits Challenge Tax Code Favoritism For Churches

This month, two separate lawsuits were filed claiming that the Internal Revenue Service unconstitutionally favors religious organizations and churches over other non-profit organizations. On Dec. 20, American Atheists announced that, along with two state organizations, it has filed suit in a Kentucky federal district court challenging numerous provisions that advantage religious non-profits.  The complaint (full text) in American Atheists, Inc. v. Shulman, (ED KY, filed 12/20/2012), alleges that churches and many religious organizations are not required to submit an application for a Section 501(c)(3) exemption or pay the fee for applying that is imposed on other non-profits; they are not required to make annual informational filings on Form 990 with the IRS; special procedures need to be followed before civil tax examinations are instituted for churches and religious organizations; and churches are able to take advantage of the parsonage exemption. Plaintiffs allege that this violates the establishment clause and denies them equal protection of the laws. They also claim that this violates the religious test prohibition in Art. VI, Sec. 3 of the Constitution because "501(c)(3) entities are public Trusts."

Meanwhile, this week the Freedom From Religion Foundation, announced a new lawsuit (filed along with one of its local affiliates) challenging the exemption for churches and affiliated organizations from filing an application to obtain non-profit status, paying a filing fee and from filing annual reports on Form 990.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Miller, (WD WI, filed 12/27/2012), claims that these exemptions violate the establishment clause and plaintiffs' equal protection rights. FFRF has previously filed suits challenging the parsonage allowance and the IRS' non-enforcement of electioneering restrictions against churches. (See prior postings 1,  2). Friendly Atheist blog reports on both of this month's cases. [Thanks to Scott Mange for the lead.]

Harsh Sharia Law Applied By Islamists In Northern Mali

The New York Times reported yesterday on the application of a harsh version of sharia law in northern Mali.  Since the Islamist takeover of the region last spring, at least 14 people convicted of theft have had their hand amputated as punishment. Some cases involve theft of guns for use in helping Mali to retake the north. The article has a particularly brutal description of amputation of the hand of the brother of the police commissioner of Gao.  One case of a couple being stoned to death for having children out of wedlock has also been reported. Dozens of others people have been publicly flogged with camel-hair whips or tree branches for smoking in pubic or playing music on the radio. Also, only Koranic verses can be used as cell phone ring tones. Trials are rudimentary, and sentences are often carried out quickly.

Islamic Nations Continue Objections To Certain Proposed gTLDs; Iran Files Late Submittals

As previously reported, last June the Internet Corporation for Assigned Names and Numbers (ICANN) published a list applications for new generic Top-Level Domain (gTLD) names. Several organizations applied for gTLD's that have, or may have, a religious connection or connotation. (See prior posting.) Members of ICANN's Governmental Advisory Committee had until Nov. 20 to file official "early warnings" to applicants raising concerns over specific applications. In that process, several early warnings for proposed religious-related gTLDs were filed. The UAE expressed concern over .islam and .halal.  India raised questions on .islam, .bible, .ram and .halal. (Full ICANN List of GAC Early Warnings). As reported by BNA Electronic Commerce and Law Report yesterday [subscription required], ICANN has now posted a new page linking to correspondence from Government Advisory Committee members  submitted after the early warning deadline.  The only items included so far are from Iran which has targeted 29 gTLD proposals, most because they refer to activities prohibited or regulated by Islamic religious law--proposed gTLDs such as .gay, .poker, .wine.  Iran wants these applications to be withdrawn or rejected, or else wants applicants to provide for the blocking of these domains in countries that object to them. For certain other objectionable domains, such as .imamat, Iran says concerns are so great that only withdrawal or rejection of the application is acceptable to it. Earlier in the process, Saudi Arabia had filed objections to a number of the same top level domain names that are now targeted by Iran. (See prior posting.)

District Court Finds Contraceptive Mandate Does Not Substantially Burden Religious Exercise

Yesterday in Grote Industries, LLC v. Sebelius, (SD IN, Dec. 27, 2012), an Indiana federal district court refused to grant a preliminary injunction to a for-profit business that manufactures vehicle safety systems and its Catholic owners who claim that their religious liberty rights are infringed by the contraceptive coverage mandate under the Affordable Care Act.  The company currently operates a self-insured health plan that excludes coverage for abortifacient drugs, contraception, and sterilization for its 464 full-time employees.  The plan is not a grandfathered one, so that the coverage requirements take effect on Jan. 1.  Focusing on the Religious Freedom Restoration Act challenge, the court held that the mandate does not impose a substantial burden on plaintiffs' free exercise rights. Citing in particular the O'Brien case, a recent Missouri federal district court decision reaching the same conclusion (see prior posting), the court concluded that the burden imposed by the mandate "is likely too remote and attenuated to be considered a substantial burden." It held that its analysis is not changed by the fact that here the plan is a self-insured one.

Acknowledging that Plaintiffs object not just to the use of contraceptives, but to furnishing coverage for them, the court quoted O'Brien's language:

RFRA is a shield, not a sword.  It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own...

The court added:

We can imagine a wide variety of individual behaviors that might give rise to religiously-based scruples or opposition, such as alcohol consumption or using drugs or tobacco, or homosexual-related behaviors, all of which can threaten health conditions requiring treatment and care.  If the financial support for health care coverage of which Plaintiffs complain constitutes a substantial burden, secular companies owned by individuals objecting on religious grounds to such behaviors, including those businesses owned by individuals objecting on religious grounds to all modern medical care, could seek exemptions from employer-provided health care coverage for a myriad of health care needs, or for that matter, for any health care at all to its employees.

The court went on to reject 1st Amendment free exercise, establishment clause and free speech challenges, as well as due process and Administrative Procedure Act claims.  It found that the mandate is likely a neutral law of general applicability. It rejected a "compelled speech" argument saying that any subsidy for education and counseling services merely involves speech incidental to the conduct of receiving health care.

4 FFRF Signs Countering Christmas Displays Are Stolen Or Vandalized

In a news release yesterday, the Freedom from Religion Foundation reported that it has put up Winter Solstice banners or signs in 12 cities this year to counter religious displays on public property. Many of the banners use text that calls religion "myth & supestition." However the FFRF signs have been stolen or vandalized in 4 locations-- the Boston Commons; next door to a police station in Gladwin, Michigan; in Warren, Michigan; and in Wilkes-Barre, Pennsylvania where the sign was vandalized in front of TV cameras.

Homeowners Sue New Mexico County Challenging Its Zoning Settlement With UDV Church

Wednesday's Santa Fe New Mexican reports on a state court lawsuit by six New Mexico homeowners challenging on constitutional grounds the decision by Santa Fe County  to settle a lawsuit filed by O Centro Espírita Beneficente União do Vegetal (UDV).  UDV, a church that uses a hallucinogenic tea as a sacrament, sought county zoning approval to build a temple, a guesthouse for a clergy member, and a greenhouse, as well as renovating a yurt, on property of Seagram’s whiskey heir Jeffrey Bronfman who is a local UDV leader. (Background.) The County Commission voted 3-2 to deny the required permits, saying that the construction was incompatible with the neighborhood.  UDV sued in federal district court charging religious discrimination. [corrected]  This led the county to negotiate a settlement with UDV under which the county would approve a new temple, but not a greenhouse or yurt. UDV would limit the times and number of people attending services.  The county agreed it would also pay $300,000 to extend a waterline and install a fire hydrant on the property, and would spend another $80,000 for a waste water system there.  Plaintiffs in the state court lawsuit claim that these expenditures would violate the anti-donation clause of the state constitution as well as the Establishment Clause of the U.S. Constitution. [Thanks to Steven Siegel for the correction above.]

Iran Bars Overflights During Call-To-Prayer Times

The New York Times reported yesterday that Iran's Civil Aviation Organization has issued a directive prohibiting all aircraft from flying across the country during Adhan, the 5-times daily Muslim call for prayer. However the directive did not indicate whether planes in flight would be re-routed or forced to land.  Also under the new directive, no planes may take off in the morning until 30 minutes after the pre-dawn call to prayer. The head of the Civil Aviation Organization said the new rules were designed to give air travelers the time to carry out their religious duties. [Thanks to Scott Mange for the lead.]

President Extends Best Wishes To Those Celebrating Kwanzaa

The White House yesterday issued a statement (full text) from the President and the First Lady extending best wishes to all those celebrating Kwanzaa. The statement describes the festival as a "week-long celebration of African-American history and culture through the seven principles of Kwanzaa: unity, self determination, collective work and responsibility, cooperative economics, purpose, creativity, and faith."

Parents Sue Rabbi For Sexual Assault and Defamation After He Received Light Criminal Sentence

Yesterday's Albany (NY) Times-Union reports on a civil suit for sexual assault and defamation that has been brought in state court in Albany County, New York against a former Chabad rabbi. In January 2010, Rabbi Yaakov Weiss plead guilty to misdemeanor charges of child endangerment after admitting inappropriate sexual contact with two 13-year old boys. Apparently Weiss' conduct with the boys took place in a mikveh (ritual purification pool). Under the plea agreement, Weiss was sentenced to 60 days in jail and 3 years probation, and was not required to register as a sexual offender. Weiss has also been suspended from his position with the local Chabad organization.  The boys parents, upset at the light sentence Weiss received, have now filed this civil suit which will come to trial next month. The defamation charges in the suit stem from Weiss' claim that the boys' allegations were "100% untrue." Meanwhile Weiss has complained to a rabbinical tribunal in Rockland County about the parents filing of the civil lawsuit.  The religious tribunal could potentially excommunicate the parents for bringing the lawsuit in civil court rather than submitting it to a religious tribunal for adjudication.

Justice Sotomayor Denies Injunction Pending Appeal In Hobby Lobby's Contraceptive Coverage Challenge

As previously reported, Hobby Lobby Stores and its sister corporation Mardel, Inc. have been seeking a temporary injunction to prevent enforcement of the Affordable Care Act contraceptive coverage mandate against them as they litigate their religious liberty challenges to the health care insurance rule.  After the 10th Circuit denied them an injunction, they sought a injunction from Supreme Court Justice Sotomayor in her role as Circuit Justice.  Yesterday, Sotomayor refused to grant the injunction.  In an in chambers opinion in Hobby Lobby Stores, Inc. v. Sebelius, (Sup. Ct., Dec. 26, 2012), Justice Sotomayor wrote in part:

Applicants do not satisfy the demanding standard for the extraordinary relief they seek.  First, whatever the ultimate merits of the applicants’ claims, their entitlement to relief is not “indisputably clear.”... This Court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion.... Moreover, the applicants correctly recognize that lower courts have diverged on whether to grant temporary injunctive relief to similarly situated plaintiffs raising similar claims....

AP reports on the decision, as does SCOTUS Blog.

UPDATE: Following Justice Sotomayor's decision, the Becket Fund, counsel for Hobby Lobby announced:

Hobby Lobby will continue their appeal before the Tenth Circuit. The Supreme Court merely decided not to get involved in the case at this time. It left open the possibility of review after their appeal is completed in the Tenth Circuit. The company will continue to provide health insurance to all qualified employees. To remain true to their faith, it is not their intention, as a company, to pay for abortion-inducing drugs.

Company Settles EEOC Suit Alleging Refusal To Hire 7th Day Adventist

The EEOC announced last week that Altec Industries, Inc., a Birmingham, Alabama based manufacturing company, has agreed to settle a religious discrimination lawsuit brought against it by the EEOC. The suit claims that Altec refused to hire Seventh Day Adventist, James Wright, at its Burnsville, N.C. manufacturing  facility after it learned that Wright could not work on his Sabbath (sundown Friday to sundown Saturday).  Altec will pay $25,000 in damages to Wright, and will also provide training on religious discrimination to certain managers and supervisors, post notices of employee rights and report periodically to the EEOC.

Government Agrees That Priests for Life Qualifies For ACA Mandate Enforcement Safe-Harbor

Last January, the Department of Health and Human Services announced that it would impose a moratorium on enforcement of the Affordable Care Act contraceptive coverage mandate until August 1, 2013  for non-profit employers who, based on religious beliefs, did not currently provide contraceptive coverage in their insurance plan. (See prior posting.) In August of this year, HHS issued a Guidance on the Temporary Enforcement Safe Harbor confirming that the temporary enforcement safe harbor would be in effect until the first plan year that begins on or after August 1, 2013 for non-profit employers with conscience exemptions which have consistently not provided contraceptive coverage in the past. Now in Priests for Life v. Sebelius, (ED NY, Dec. 21, 2012), the parties have filed a stipulation in a New York federal district court agreeing that Priests for Life qualifies for the temporary enforcement safe harbor. Priests for Life will provide a notice to its health plan participants that contraceptive services will not be covered during the safe-harbor period. The stipulation comes one day after oral arguments in Priests for Life's challenge to the mandate. (Press release from American Freedom Law Center.)  (See prior related posting.)

Top 10 Church-State and Religious Liberty Developments For 2012

Here are my nominations for the 2012 Top Ten Church-State and Religious Liberty Developments:

1.  The long-simmering tensions between the U.S. Conference of Catholic Bishops and the Obama Administration took on a greater focus when in May some 40 Catholic institutions, in 12 lawsuits, filed challenges to the Obama administration's mandate that health insurance policies include contraceptive coverage. Other suits followed. The Administration had granted a one-year moratorium to non-profit institutions, while it worked unsuccessfully to produce a compromise that might be acceptable to religiously affiliated non-profit institutions. Meanwhile, for-profit companies owned by Catholics and conservative Christians also filed an avalanche of suits seeking conscience exemptions from the mandate.

2.  The battle between religious conservatives and advocates of marriage equality continued to rage on numerous fronts.  Each side saw some victories and some defeats, but proponents of marriage equality had a good year.  Legislatures in Washington and Maryland approved same-sex marriage. In November, voters in 4 states also indicated approval of same-sex marriage, but earlier in the year North Carolina voters approved a ban on same-sex marriage.. The 9th Circuit in a narrow opinion struck down California's Proposition 8, and the Supreme Court has agreed to review that decision. The Defense of Marriage Act was struck down by the 1st Circuit, the 2nd Circuit and a California federal district court. The Supreme Court has agreed to review the 2nd Circuit case. Same-sex marriage bans in Nevada and Hawaii were upheld by federal district courts.

 3.  Mitt Romney lost the Presidential election, but his Mormon religious faith was not an important issue in the campaign. Indeed, Romney's activities as a lay Mormon pastor were used to his advantage at the Republican Convention.

4. The Supreme Court in Hosanna-Tabor v. EEOC adopted the "ministerial exception" doctrine for employment discrimination cases, finding it to be constitutionally-based.

5.  Egypt has struggled to draft and adopt a new constitution.  The role the new constitution will provide for Sharia law in the country has been one of the central issues in debates on the document.

6.  A 17-year long struggle by the New York City Board of Education to bar churches from renting out school buildings on weekends for church services, even though the buildings are available to other community groups, was revived by a federal district judge. Most observers had thought that a 2011 decision by the 2nd Circuit had ended the dispute in favor of the Board of Education, but the court held that the 2nd Circuit had not passed on the Bronx Household of Faith's free exercise and establishment clause claims. The district court's vindication of the free exercise claim is now on appeal.

7.  An online video promoting the obscure movie "Innocence of Muslims" triggers demonstrations against American embassies in the Muslim world. The video leads to an unusual set of legal proceedings-- litigation involving probation violations by the producer, attempt by an actress in the movie to have it removed from YouTube, and in abstentia convictions in Egypt.

8.  New questions are raised around the world regarding ritual circumcision of young boys by Muslims and Jews. Germany's Bundestag confirmed the legality of religious circumcision after a Cologne district court held that parents lack the right to decide that their young sons should be circumcised for non-medical reasons. Ritual circumcision is also questioned in Australia and Norway. Meanwhile, in the United States some Orthodox Jewish groups sue challenging the New York City health department's new regulation requiring informed consent from parents when a Jewish religious circumcision involves use of the oral suction technique (metzitzah b'peh).

9.  The court martial trial of accused Fort Hood mass shooter Maj. Nidal Hasan is delayed as the question of his right to wear a beard for religious reasons at his trial is litigated.  In December, an appeals court held there was insufficient evidence to show that the beard materially interfered with the court martial proceedings. It also ordered court martial judge Gregory Gross removed from the case for the appearance of bias.

10.  In the wake of Congress' reorganization of the U.S. Commission on International Religious Freedom in late 2011, developments demonstrated internal divisions and conflicts in the Commission. The pressure of expiring terms of 5 Commissioners led to early release of USCIRF's annual report and to a public statement by 5 of the Commissioners charging that the report wrongly reflected the votes of Commissioners on the status of Turkey.  Meanwhile a former USCIRF staff member sued alleging anti-Muslim bias against her.  In an unrelated case, a different employee was sentenced to prison for embezzling USCIRF funds. And Muslim groups criticized one of the new Commissioners, claiming he is anti-Muslim.

Some of my picks were rather obvious candidates for inclusion, while others may surprise some readers. A number of the top developments continue trends reflected in last year's list.  You may also find it interesting to compare two other "Top 10" lists: Religion Newswriters 2012 Top 10 Religion Stories and Blog from the Capital's Top Religious Liberty Stories of 2012. I invite you to post your comments or disagreements with my choices this year.

Official Results: Egyptian Voters Approve Constitution By 63.8% Vote

Egypt's Supreme Election Committee told a news conference today that the country's new constitution has been approved by 63.8% of those casting votes.  According to Al-Jazeera, the election commission says it reviewed every complaint that has been filed by independent and opposition election monitors, and has rejected all of them.  The official turnout for the election, held in two parts on Dec. 15 and 22, was 32.9% of the country's 52 million eligible voters.  Earlier this month, National Review published an excellent analysis of the provisions in the new constitution that relate to religious freedom and protection of the rights of minorities. The document was drafted largely by Islamists after representatives of non-Islamist parties and the Coptic Christian minority withdrew in protest from the Constitutional Assembly that was drafting the document. (See prior related posting.)

UPDATE: Reuters reports on Wednesday that President Morsi has signed the new constitution into law.

Obamas Wish Everyone Merry Christmas and Happy Holidays

President Obama and the First Lady used the President's weekly address (full text) last Saturday to extend wishes for a Merry Christmas and Happy Holidays to everyone.  In the address, the Obamas made special mention of military families, and the President also said:

For my family and millions of Americans, it’s a time to celebrate the birth of Christ. To reflect on His life and learn from His example.  Every year, we commit to love one another.  To give of ourselves.  To be our brother’s keeper.  To be our sister’s keeper.  But those ideas are not just part of our faith.  They’re part of all faiths.  And they unite us as Americans.

A video of the address is available online.

IRS Seizes Synagogue and Day School For Back Taxes

JTA reported yesterday that in Worcester, Massachusetts, the Internal Revenue Service has seized a building housing a synagogue and Jewish day school for non-payment of taxes. The school owes over $435,000 in taxes dating back to 2004-- mostly payroll taxes that have not been paid. A public auction of the building is scheduled for January 4. In the meantime, Yeshiva Achei Tmimim synagogue and Yeshiva Academy day school continue to operate.

Federal Court Says Contraceptive Coverage Mandate Preempts State Law Seeking To Undercut It

As previously reported, last year in a move to oppose the federal mandate on contraception coverage in health insurance policies, the Missouri legislature enacted SB 749 that requires insurance companies to offer and issue policies that exclude coverage for contraceptives where coverage is contrary to the moral, ethical or religious beliefs or tenets of the person or entity seeking insurance.  Gov. Jay Nixon vetoed the bill, but the legislature overrode the veto. Now, in Missouri Insurance Coalition v. Huff, (ED MO, Dec. 21, 2012), a Missouri federal district court has issued a temporary restraining order barring the Department of Insurance from enforcing these provisions of SB 749, finding that under the Constitution's Supremacy Clause the provisions are preempted by the Affordable Care Act's contraceptive coverage mandate. Insurance News Net reports on the decision.

Pakistani Villagers Attack Traveler Accused Of Burning Qur'an

Reuters reported on Saturday on the violence in the Pakistani village of Seeta against a man accused of burning a Qur'an.  The man, a traveler, had spent Thursday night as the only person in the local mosque.  The next morning charred remains of a Qur'an were found there.  Villagers beat the man and turned him over to police. A few hours later, 200 villagers invaded the police station, dragged the suspect out and set him on fire. Police say 30 people have been arrested for murder and 7 police officers have been detained for negligence in the incident. [Thanks to Matthew Caplan for the lead.]

Recent Articles of Interest

From SSRN:

• Tom Ginsburg, Constitutionalism: East Asian Antecedents, (Chicago-Kent Law Review, 2013).
• Mohamed A. Arafa, President Mursi's Egypt Arab Spring: Does Egypt Will Continue to Be a Civil State or Under the Umbrella of Islamic (Sharie‘a) Law and Islamism?, (US-China Law Review, Vol. 9, No. 6, 2012).
• Veronique Champeil-Desplats, Laïcité Et Liberté Religieuse En France: Aux Sources De La Loi Interdisant La Dissimulation Intégrale Du Visage Dans L'Espace Public (Secularism and Religious Freedom in France: On the Legal Provisions Prohibiting the Veil to Cover the Face in Public Space), (Revista Derecho del Estado, No. 29, 2012).
• Xiomara Lorena Romero Perez, La Libertad Religiosa En El Sistema Interamericano De Protección De Los Derechos Humanos (Análisis Comparativo Con El Ordenamiento Jurídico Colombiano) (Religious Freedom in the American System of Human Rights Protection (Comparison with the Colombian Legal System)), (Revista Derecho del Estado No. 29, 2012).
• Omar M, Dajani, Responding to Ethnic and Religious Conflict in the Emerging Arab Order: The Promise and Limits of Rights, (November 10, 2012).
• Lucinda Ferguson, 'Families in All Their Subversive Variety': Over-Representation, the Ethnic Child Protection Penalty, and Responding to Diversity Whilst Protecting Children, (Studies in Law, Politics, and Society, Forthcoming).
• Nicholas A. Primrose, Has Society Become Tolerant of Further Infringement on First Amendment Rights?, (December 4, 2012).

From SSRN (Jewish Law and Islamic Law)

• Yitshak Cohen, Midrashic Exegesis and Biblical Interpretation in the Meshekh Hokhmah – The Man and the Work – Their Legal Stature and Normative Influence, (Jewish Law Annual, Forthcoming).
• Yitshak Cohen, The Rabbbinic Decisors and the Halakhic Material in the Or Sameah, (Jewish Law Association, Forthcoming).
• Yitshak Cohen, The Jerusalem Talmud in Rabbi Meir Simcha Hakohen's Halachic-Legal Work, (9 Kiryat Hamishpat L. Rev. 301, 2011).
• Yitshak Cohen, Juridical Ideology and Its Influence upon the 'Or Sameach's' Halachic Decision Making Process, (Halakhah: Explicit and Implied Theoretical and Ideological Aspects, Avinoam Rosenak & Dafna Schreiber, eds., 2012).
• Mark Cammack and Michael Feener, The Islamic Legal System in Indonesia, (Pacific Rim Law & Policy Journal, Vol. 21, No. 1, 2012).

From SmartCILP:

• David M. Engel, Vertical and Horizontal Perspectives on Rights Consciousness, [Abstract], 19 Indiana Journal of Global Legal Studies 423-455 (2012).
• Daisy Hurst Floyd, Timothy W. Floyd and Sarah Gerwig-Moore, Learning From Clergy Education: Externships Through the Lens of Formation [Abstract], 19 Clinical Law Review 83-114 (2012).
• Rodney D. Chrisman, Can a Merchant Please God?: The Church's Historic Teaching On the Goodness of Just Commercial Activity As a Foundational Principle of Commercial Law Jurisprudence, 6 Liberty University Law Review 453-494 (2012).

Developments From The Vatican Last Week

Several developments of interest came from the Vatican last week:

As reported by AP, Pope Benedict XVI met in the Vatican prison on Saturday with his former butler Paolo Gabriele and granted him a pardon. Gabriele had been sentenced to 18 months in jail for stealing the Pope's private correspondence, some of which were published in a best-selling book by Italian journalist Gianluigi Nuzzi. (See prior posting.)

On Saturday, the Vatican announced the appointment of Boston canon lawyer Rev. Robert W. Oliver as promoter of justice for the Congregation of the Doctrine of Faith, the Vatican office charged with protecting church doctrine. As reported by the Boston Globe, this makes Oliver the Vatican's chief prosecutor of priests charged with sexual abuse of minors. He succeeds Monsignor Charles Scicluna who has been named auxiliary bishop in Malta. The director of Survivors Network of those Abused by Priests criticized Oliver's appointment, saying that he lacks credibility because he never publicly called for the ouster of Boston's Cardinal Bernard Law.

On Friday, the Pope delivered his Christmas greetings to the Roman Curia. (Full text). As reported by Catholic World, while the Pope's extensive remarks were widely headlined as an attack on same-sex marriage, in fact he spoke in broader philosophical terms. Focusing on "a new philosophy of sexuality" in the western world, he said in part:

According to this philosophy, sex is no longer a given element of nature, that man has to accept and personally make sense of: it is a social role that we choose for ourselves, while in the past it was chosen for us by society.... People dispute the idea that they have a nature, given by their bodily identity, that serves as a defining element of the human being. They deny their nature and decide that it is not something previously given to them, but that they make it for themselves.... When the freedom to be creative becomes the freedom to create oneself, then necessarily the Maker himself is denied and ultimately man too is stripped of his dignity as a creature of God....

Recent Prisoner Free Exercise Cases

In Moussazadeh v. Texas Department of Criminal Justice, (5th Cir., Dec. 21, 2012), the 5th Circuit, in a 2-1 decision, held that a Texas prison inmate seeking access to kosher food had adequately exhausted his administrative remedies and, as a matter of law, had demonstrated the sincerity of his religious beliefs. It also concluded that charging plaintiff for his kosher food, while it was available at a different facility without cost to prisoners, imposes a substantial burden on religious exercise. It remanded plaintiff's RLUIPA claim for determination as to compelling interest and least restrictive means.

In Stewart v. Beach, (10th Cir., Dec. 18, 2012) a Rastafarian inmate objected to a prison rule that required him to cut his hair. The 10th Circuit held that correctional officers had qualified immunity as to the inmate's free exercise claim, and that individual capacity claims are not allowed under RLUIPA.

In Reed v. Hardy, 2012 U.S. Dist. LEXIS 179325 (ND IL, Dec. 19, 2012), and Illinois federal district court allowed an inmate to move ahead with free exercise and RLUIPA objections to being forced to choose between yard time and going to communal religious services.

In Scott v. Erdogan, 2012 U.S. Dist. LEXIS 178908 (MD PA, Dec. 18, 2012), a Pennsylvania federal district court adopted in part a magistrate's recommendations (2012 U.S. Dist. LEXIS 179482, Nov. 19, 2012) and permitted a Muslim inmate to move ahead with his free exercise and RLUIPA claims for injunctive relief against the prison's Muslim chaplain who he alleged infringed his right to practice his orthodox Sunni religion in various ways by funneling him to the Wahabi sect.

In Bedier v. United States, 2012 U.S. Dist. LEXIS 178897 (CD CA, Dec. 17, 2012), a California federal district court dismissed as moot a suit by plaintiff, who has now been deported to Lebanon, complaining that while he was held pending removal he was denied a halal or vegetarian diet and was denied the ability to pray. Injunctive relief was denied because plaintiff is no longer being detained and is unlikely to be held again in the future.

In Laurensau v. Romarowics, 2012 U.S. Dist. LEXIS 179788 (WD PA, Dec. 20, 2012), a Pennsylvania federal magistrate judge rejected an inmate's complaints about being taken off the kosher diet plan, finding that he lacked a sincerely held religious belief requiring kosher food.

In Jalloh v. Mullendore, 2012 U.S. Dist. LEXIS 179677 (D MD, Dec. 19, 2012), a Maryland federal district court permitted plaintiff to proceed with his claims that while he was a pre-trial detainee he was
denied access to Muslim services, programming and religious articles, while other religions were treated differently.

In Trapp v. Clarke, 2012 Mass. Super. LEXIS 311 (MA Super. Ct., Sept. 26, 2012), a Massachusetts state trial court held that prison authorities violated a previous settlement agreement, the Massachusetts constitution and RLUIPA when they stopped providing kinnick-kinnick with tobacco and substituted tobacco free kinnick-kinnick, and when they closed a sweat lodge at one facility because of health concerns of exposing staff and inmates to smoke. The court upheld closure of a second sweat lodge and a ban on colored beads.

In Clark v. Cambria County Prison, 2012 U.S. Dist. LEXIS 179789 (WD PA, Dec. 20, 2012), a Pennsylvania federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 181044, Nov. 15, 2012) and dismissed an inmate's complaint that his prison did not have separate Jehovah's Witness services.

In Dowdy-El v. Caruso, 2012 U.S. Dist. LEXIS 180025 (ED MI, Dec. 20, 2012), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 181136, Aug. 15, 2012), and granted class certification to all Muslim inmates in Michigan who are denied the ability to participate in Jum'ah services because of a conflicting work, school or similar detail; and all Muslim inmates in Michigan who have been denied a halal diet.

Preliminary Injunction Denied In Factional Dispute In Ravidassia Temple

In Ram v. Lal, 2012 U.S. Dist. LEXIS 179958 (ED NY, Nov. 21, 2012), a New York federal magistrate judge denied a preliminary injunction in a suit between competing factions of a Ravidassia Temple in Woodside, New York.  Among the disputes between the factions is the question of whether Ravidassia is a separate religion or is a sub-group within the Sikh religion.  The suit grows out a a previous lawsuit filed in state court in which the state court disbanded the Management Committee of the Temple elected in 2009 and appointed a receiver to manage the Temple until a new election was held. Among other things, the receiver had the power to determine who could vote in the new election.  Plaintiffs complain that Defendants' faction has been recruiting non-Ravidassia-- in particular, Sikhs who are not members of the Chammar/ Addharmi caste-- to become Temple members in order to bolster their chances of winning the election. The court held that members of the Defendants' faction were not state actors, and so no 1st Amendment claim lies against them.  Plaintiffs failed to name the receiver or the state court as parties to the action. Moreover the injunction sought-- barring any actions contrary to the Temple's Bylaws-- was overly broad.

Mosque Can Move Ahead With Suit Challenging Denial of Conditional Use Permit

In Islamic Center of Western Suburbs v. County of DuPage, (ND IL, Dec. 18, 2012), an Illinois federal district court refused to dismiss claims by an Islamic Center that its rights under RLUIPA, the 1st and 14th Amendments and the Illinois constitution were infringed. The suit stemmed from the denial of Plaintiff's application for a conditional use permit for a mosque. However plaintiff's motion to strike various defenses asserted by the county was for the most part denied. The suit seeks damages, injunctive and declaratory relief. (See prior related posting.)

Iowa Supreme Court: Firing Attractive Female Employee Because Of Wife's Objections Is Not Sex Discrimination

In Nelson v. Knight, (IA Sup. Ct., Dec. 21, 2012), the Iowa Supreme Court upheld a decision by dentist James Knight to fire Melissa Nelson, a dental assistant who had worked for him for over ten years, after Knight's wife became concerned that Nelson posed a threat to their marriage. Knight was becoming personally attracted to Nelson and he feared he would eventually try to have an affair with her if he did not fire her. Knight reached the decision to fire Nelson after he and his wife consulted with the senior pastor of their church. Knight arranged for another pastor from the church to be present and witness the conversation in which he fired Nelson, and also a subsequent conversation he had with Nelson's husband about the firing.  The state Supreme Court held that the firing did not amount to gender discrimination. AP reports on the decision.

Supreme Court Asked To Decide On Holding Of Public School Commencements In Churches

The Becket Fund announced yesterday that it has filed a petition for certiorari (full text) with the U.S. Supreme Court seeking review of the 7th Circuit's decision in Doe 3 v. Elmbrook School District.  In the case, the 7th Circuit in a 7-3 en banc decision held that two Wisconsin high schools violated the Establishment Clause when they regularly held their graduation ceremonies in the sanctuary of a non-denominational evangelical Christian church. (See prior posting.) The Brookfield Patch reports on the filing of the cert. petition.

Congress Passes Defense Authorization Act With Provisions On Chaplains and Conscience Rights

Congress this week passed HR 4310, the 2013 National Defense Authorization Act, when the House and Senate both agreed to the version of the bill set out in the Conference Committee Report. The 1590-page bill contains provisions impacting military chaplains and conscience rights of members of the military.

Section 508 of the Act (adding 10 USC Sec. 8039) creates the position of Chief of Chaplains in the Air Force.

Section 533 of the Act protects conscience rights of military members and chaplains. It provides:

SEC. 533. PROTECTION OF RIGHTS OF CONSCIENCE OF MEMBERS OF THE ARMED FORCES AND CHAPLAINS OF SUCH MEMBERS. 

(a) PROTECTION OF RIGHTS OF CONSCIENCE.—

(1) ACCOMMODATION.—The Armed Forces shall accommodate the beliefs of a member of the armed forces reflecting the conscience, moral principles, or religious beliefs of the member and, in so far as practicable, may not use such beliefs as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

(2) DISCIPLINARY OR ADMINISTRATIVE ACTION.—Nothing in paragraph (1) precludes disciplinary or administrative action for conduct that is proscribed by chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), including actions and speech that threaten good order and discipline. 

(b) PROTECTION OF CHAPLAIN DECISIONS RELATING TO CONSCIENCE, MORAL PRINCIPLES, OR RELIGIOUS BELIEFS.—No member of the Armed Forces may—

(1) require a chaplain to perform any rite, ritual, or ceremony that is contrary to the conscience, moral principles, or religious beliefs of the chaplain; or 

(2) discriminate or take any adverse personnel action against a chaplain, including denial of promotion, schooling, training, or assignment, on the basis of the refusal by the chaplain to comply with a requirement prohibited by paragraph (1). 

(c) REGULATIONS.—The Secretary of Defense shall issue regulations implementing the protections afforded by this section.

God and Country Blog has more on Sec. 533.

As reported by Politico, last month the White House threatened a veto over various other provisions in the Senate version of the bill, including limitations on transfer of prisoners from Guantanamo Bay. (Statement by Executive Office of the President.) However, National Journal now reports that a Presidential veto is highly unlikely.

9th Circuit Bars Enforcement of Reparative Therapy Ban Pending Appeal

As reported by AFP, the U.S. 9th Circuit Court of Appeals yesterday issued an injunction in Pickup v. Brown barring enforcement pending an appeal, of California's ban on so-called reparative therapy for minors.  The federal district court in the case held that the state's ban on sexual orientation change efforts does not impact 1st Amendment free expression since healthcare treatment is not expressive conduct. (See prior posting.) [Corrected-- earlier version of posting had incorrect circuit.]

District Court Modifies Wilmington Diocese Bankruptcy Order, Eliminating Ban On Payments To Accused Priests

In an appeal of the bankruptcy court's confirmation of the Chapter 11 reorganization plan of the Catholic Diocese of Wilmington, a Delaware federal district court has eliminated the bankruptcy court's order banning payment of any salaries, employment benefits, medical benefits, charity payments, pensions or other financial benefits to a list of nine removed priests. The appeal was filed by one of the nine priests, Kenneth Martin. In Martin v. Catholic Diocese of Wilmington, Inc., (D DE, Dec. 18, 2012), the Delaware federal district court held that a crucial letter by now-deceased Bishop Salterelli was hearsay that was wrongly admitted into evidence.  The letter, on which the list of priests denied benefits was based, represented in a conclusory fashion the names of priests as to whom Saltarelli had confirmed sexual abuse allegations. The court said in part:

In this case, the bankruptcy court imposed a permanent injunction on third parties without referring to any evidentiary requirements ... and without requiring the Diocese (or the Official Committee or the Ad Hoc Committee) to bear any burden of proof in that regard.  Moreover, the record demonstrates that the imposition of the Injunction will have no impact on the property of the estate, as the Diocese has represented, through its agent under oath, that it has no intention of providing any prospective benefits to appellant or other similarly situated individuals....

In weighing the public interest, the court does not question the motivations behind the imposition of the Injunction.  However, good intentions cannot trump the rule of law and the fundamental requirement that there be a nexus established between the wrongs alleged and the remedy imposed.  No such nexus exists of record,  as there is no indication at bar that appellant was the subject of any of the survivor claims actually at issue in the Diocese's chapter 11  proceedings, and appellant was not given the opportunity to contest his inclusion as a subject of the Injunction.

The Wilmington News Journal reports on the decision.