10th Circuit En Banc Gives Big Win To Hobby Lobby In Challenge To Contraceptive Coverage Mandate

Yesterday an 8-judge en banc panel of the U.S. 10th Circuit Court of Appeals gave an important win in a high profile case to for-profit businesses challenging the Affordable Care Act's contraceptive coverage mandate. In Hobby Lobby Stores, Inc. v. Sebelius, (10th Cir., June 27, 2013), in six separate opinions spanning 165 pages, the court held that two related family-owned corporate businesses, Hobby Lobby Stores and Mardel, Inc., had demonstrated a likelihood of success on their claim that their free exercise rights were substantially burdened in violations of the Religious Freedom Restoration Act.  The corporations and their owners objected to providing coverage for those contraceptives they regard as abortifacients.  Four of the 8 judges would have remanded with instructions for the district court to issue a preliminary injunction, but lacking a 5th vote for that, the court instead remanded for the district court to resolve two other issues as to whether an injunction should issue-- the balance of equities and the public interest-- before issuing the injunction.

Five of the 8 judges (those who joined Part V of Judge Tymkovich's opinion) held that corporations have free exercise rights, and that here they were substantially burdened without a compelling governmental interest.  Judge Tymkovich said in part:

... Congress did not exclude for-profit corporations from RFRA’s protections. Such corporations can be “persons” exercising religion for purposes of the statute.  ....  It is beyond question that associations—not just individuals—have Free Exercise rights: “An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed.” ....

[T]he protections of the Religion Clauses extend beyond the walls of a church, synagogue, or mosque to religiously motivated conduct, as well as religious belief.... The distinction gains force here because religious conduct includes religious expression, which can be communicated by individuals and for-profit corporations alike......

... [S]incerely religious persons could find a connection between the exercise of religion and the pursuit of profit. Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices? The kosher butcher, of course, might directly serve a religious community—as Mardel, a Christian bookstore, does here. But we see no reason why one must orient one’s business toward a religious community to preserve Free Exercise protections. A religious individual may enter the for profit realm intending to demonstrate to the marketplace that a corporation can succeed financially while adhering to religious values. As a court, we do not see how we can distinguish this form of evangelism from any other.....

Judge Tymkovich went on to find that the corporation's religious beliefs were substantially burdened. Saying that "substantial burden" is a question of the intensity of coercion, not the theological merit of the belief, and explaining:

It is not the employees’ health care decisions that burden the corporations’ religious beliefs, but the government’s demand that Hobby Lobby and Mardel enable access to contraceptives that Hobby Lobby and Mardel deem morally problematic.... [W]e must accept Hobby Lobby and Mardel’s beliefs.

Judge Tymkovich then rejected the argument that the government has a compelling interest in imposing the mandate. The asserted interests in public health and gender equality are broadly formulated and do not justify refusal to grant exemptions for religious objectors. Moreover, tens of millions of people are already exempt from the mandate because they are insured under grandfathered plans or work for small employers.

Four, but only 4, of the 8 judges also concluded that the individual shareholders have standing to assert claims here as well. The other judges concluded that they need not reach that issue. Becket Fund issued a press release announcing the decision. AP reports on the decision.

Religious Leaders React To Same-Sex Marriage Decisions

Religion News Service has an extensive compilation of reactions by religious leaders to yesterday's Supreme Court decisions on same-sex marriage. They range from the U.S. Conference of Catholic Bishops statement that "Today is a tragic day for marriage and our nation", to the statement by head of The Episcopal Church's House of Deputies that: "I join with millions of Christians across the country in celebrating today’s Supreme Court rulings that extend equal protection under federal law to all marriages...."

In Broad Win, Small Business Gets Preliminary Injunction Against Required ACA Emergency Contraception Coverage

In Beckwith Electric Company, Inc. v. Sebelius, (MD FL, June 25, 2013), a Florida federal district court granted a for-profit small business and its owner a preliminary injunction barring the government from enforcing the contraceptive coverage mandate to require plaintiffs to cover emergency contraceptives for the company's 168 employees. Plaintiffs claim these operate as abortifacients. Siding with plaintiffs on virtually all issues, the court held both  that corporations have the right to exercise religion under the free exercise clause and RFRA, and that closely held corporations can also assert the free exercise rights of their owners. The court held broadly:

When an individual is acting through an incorporeal form, whether secular or religious, nonprofit or for-profit, incorporated or a partnership, the individual does not shed his right to exercise religion merely because of the "corporate identity" he assumed.

The court also concluded that plaintiffs' religious beliefs are substantially burdened by the mandate:

It is not within the province of the Court to question the soundness or validity of a religious belief; it is enough that plaintiffs say they have the belief.... Plaintiffs are not objecting to the use of emergency contraceptives by Beckwith Electric's employees. Rather, the particular burden to which plaintiffs object is the provision of group insurance premiums that covers emergency contraception.

Finally the court held that the government has not shown it has a compelling interest in enforcing the mandate, both because of the large number of individuals that are exempt from the mandate and because:

there is no empirical data or other evidence... that would support the conclusion that the provision of the FDA-approved emergency contraceptives (in addition to the contraceptives to which plaintiffs do not object) would result in fewer unintended pregnancies, an increased propensity to seek prenatal care, or a lower frequency of risky behavior endangering unborn babies.

The Tampa Tribune reports on the decision. [Thanks to Hillary Byrnes for the lead.]

Analysis of Today's Same-Sex Marriage Decisions-- Installment 3: The Amazing Power of A Decision Based On Standing

In Hollingsworth v. Perry today, the U.S. Supreme Court was able to reach a result which, but for the case's odd procedural posture, would seem impossible.  Chief Justice Roberts writing for the majority handed down an opinion which has the effect of re-instituting same-sex marriage in California, but only there.  By avoiding any broader holding, the Court escaped the risk of creating the same kind of religiously-grounded political controversy that has extended for decades after Roe v. Wade. At the same time, it places no barriers in the way of supporters of marriage equality elsewhere who may now litigate the broader constitutional issues. Indeed, as Justice Scalia suggested, in United States v. Windsor the majority opinion gave potent ammunition to proponents of marriage equality who will likely press the constitutional issue if the political process in state legislatures bogs down.

In California, from the beginning state executive officials refused to defend Proposition 8-- a state constitutional amendment adopted by voters through the initiative process.  However when Proposition 8 was challenged in federal district court, the court permitted the official initiative proponents to intervene as defendants.  Reaching the merits, the district court enjoined enforcement of Proposition 8. That placed the initiative proponents in the posture of appellants, and it is that role the U.S. Supreme Court held they could not assume:

We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.

The Supreme Court vacated the 9th Circuit's opinion, remanded the case and instructed the 9th Circuit to dismiss the appeal from the district court for lack of jurisdiction. Thus the district court's opinion invalidating Proposition 8 stands as the operative one on the merits.  The Supreme Court was silent as to whether it was error for the district court to allow initiative proponents to intervene as defendants.  If they had not intervened. presumably the court would still have invalidated Proposition 8 since no one would have been defending it.

Hollingsworth was a 5-4 decision, but with an odd alignment of justices.  The dissent arguing in favor of standing was written by Justice Kennedy, and joined by Justices Thomas, Alito and Sotomayor.  It seems likely that if the Court had reached the merits of the Proposition 8 challenge, these 4 justices would have been equally divided on opposite sides.

The case raises the broader question of when it is appropriate for state officials to refuse to defend the constitutionality of a state law, or a state constitutional provision.  Their oath to uphold the Constitution of the United States presumably obligates them to refuse to defend unconstitutional provisions. However, in states like California with broad initiative provisions, this case suggests a route by which initiatives adopted by popular vote can be effectively eliminated by a legislature and executive who disagree with the initiative.  An opponent of the initiative need merely file a federal lawsuit challenging its constitutionality under federal law, and existing state officials need merely to refuse to defend the initiative's legality. That spectre is reflected in the dissent's observation:

In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around.

Analysis of Today's Same-Sex Marriage Decisions-- Installment 2: What About Section 2 of DOMA?

Today's Supreme Court decision in United States v. Windsor invalidated Section 3 of the Defense of Marriage Act which provided that same-sex marriages valid under state laws would not be recognized for purposes of federal law.  The majority in its opinion says nothing about Section 2 of DOMA that provides:

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

However, can Section 2 escape the majority's broad-brush conclusion that DOMA's "purpose and effect [is] to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity"?  Indeed, it is interesting to note that in most of the passages in which Justice Kennedy attributes discriminatory motivations to Congress, he refers broadly to "DOMA", and not just to Section 3.

Even if Section 2 of DOMA is also unconstitutional, this does not automatically mean that other states must give full faith an credit to same-sex marriages performed elsewhere.  There is a long-standing notion that states need not recognize foreign marriages that violate a strong public policy of the state.  The more difficult question, however, is whether after today's decision, a state's refusal to recognize same-sex marriages from other states can be seen as reflecting a constitutionally permissible strong public policy. Justice Kennedy, in referring to states' interest in defining marriage makes a point of adding that this power is "subject to constitutional guarantees."

To the extent that states are still permitted to refuse to recognize same-sex marriages performed elsewhere, difficult questions arise, particularly when a same-sex couple moves to a state which refuses to recognize their marriage.  As Justice Scalia suggests in dissent:

Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.”... When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules?

Must the federal government continue to respect the marriage valid in the state in which it was performed, even though the state in which the couple now lives refuses to do so? That leads to the "two contradictory marriage regimes" applicable to the same marriage that the Court said it was attempting to avoid by its decision today.

Analysis of Today's Same-Sex Marriage Cases-- Installment 1: A Separate Test For LGBT Discrimination?

[This is the first in what will be a series of posts discussing the holdings in today's same-sex marriage cases decided by the U.S. Supreme Court. This post focuses on the Court's invalidation of Section 3 of the federal Defense of Marriage Act.]

In United States v. Windsor today, the Supreme Court in a majority decision by Justice Kennedy held that DOMA's refusal to recognize a New York couple's same-sex marriage under federal law is unconstitutional. One important element of the majority's opinion is the court's continued development of a unique equal protection test for cases involving discrimination against gays and lesbians. The majority said in part:

DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government....  The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.... The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States....

DOMA’s principal effect is to identify a subset of state sanctioned marriages and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency.... By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect....

DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.  By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

As in other cases involving sexual orientation, the Court does not attempt to decide if gays and lesbians fit the traditional "suspect classification" test. Nor does it make fine distinctions regarding the level of scrutiny that must be applied in assessing the government's justifications for its actions. Instead, the majority asks more simply merely whether the legislative body's principal purpose was to harm or discriminate against gays and lesbians. In the past, this kind of "discriminatory purpose" analysis was used primarily in cases involving statutes that were facially neutral but had a disparate impact on a class of individuals. Where, as here, the discrimination was clear, traditionally the analysis was different.  It focused on the government's justification for the disparate treatment. Justice Scalia makes this point in dissent:

even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act....

[The majority] makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them.... I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them...

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. 

In rejecting an overarching equal protection paradigm, and instead developing separate tests for separate kinds of equal protection cases, the Court follows an earlier history of 1st Amendment free expression jurisprudence. The Court has often attempted to create an overarching 1st Amendment theory-- be it prior restraints, or "clear-and-present danger," or viewpoint neutrality.  However the Court in the end has moved to a Balkanized free expression jurisprudence-- separate tests for subversive speech, obscenity, symbolic expression, defamation, speech in the classroom... and more. We are perhaps witnessing the same development in equal protection cases.

Supreme Court Will Issue Same-Sex Marriage Decisions This Morning [UPDATED-Decisions In]

The Supreme Court in its session that begins at 10:00 am this morning will issue opinions in the two same-sex marriage cases argued earlier this year-- Hollingsworth v. Perry, the challenge to California's Proposition 8, and United States v. Windsor, the challenge to the federal Defense of Marriage Act. The opinions will be available here on the Supreme Court's website as soon as they are issued. I will post analysis of the decisions on Religion Clause later today. The Wall Street Journal has a preview of the decisions.

UPDATE: In United States v. Windsor today, the Supreme Court in a 5-4 decision held that DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment. In Hollingsworth v. Perry, the challenge to California's Proposition 8, the Court in a 5-4 decision held that the initiative's proponents lacked standing to appeal the district court's decision declaring Proposition 8 unconstitutional. Postings later today will provide analysis of the decisions.

Suit Challenges Display of Crosses On Indiana Riverfront

The ACLU of Indiana announced yesterday that it has filed a lawsuit challenging the decision of the Evansville, Indiana Board of Public Works to allow a Christian church to display 30 eight-foot tall plastic crosses on riverfront public land.  According to AP, the crosses are to be decorated by students in the church's vacation Bible school. The case is Cabral v. City of Evansville, Indiana, (SD IN, filed 6/25/2013).

Another Contraceptive Coverage Mandate Challenge Filed By Small Business

New lawsuits by small for-profit businesses challenging on religious freedom grounds the Affordable Care Act's contraceptive coverage mandate are still being filed.  As reported by the Charleston (WV) Daily Mail, the latest lawsuit was brought in federal court this week by a West Virginia auto dealership and its born-again Christian owner who claim that some of the emergency contraceptives required to be covered are abortifacients. The complaint (full text) in Holland v. U.S. Department of Health and Human Services, (SD WV, filed 6/24/2013), contends that required coverage for ella and Plan B, along with related counseling, violates plaintiffs' rights under the First Amendment and RFRA:

Plaintiffs believe it would violate the Sixth Commandment for them to engage in any manner in the facilitation or endorsement of abortion.

Claiming that the incorporated auto dealership has its own free exercise rights, the complaint alleges:

Holland Chevrolet, as a cognizable legal person, embraces and conducts itself in accordance with the same religious principles that animate its president, chairman of the board, and principal stockholder. In Mr. Holland's view, his right to free exercise of religion should not be limited by the form in which he elects to do business.

Israel's Supreme Court Says Large Grocery Chains Must Close On Saturdays

Israel's Supreme Court yesterday ruled that the municipality of Tel Aviv must enforce the Saturday Sabbath closing laws against two supermarket chains.  According to YNet News, the court, in a case filed by small grocery stores, held that the city must find a way to force the chains to close, and not permit them to continue to merely pay a fine and stay open on the Sabbath.

Jesus Statue On Federal Land Leased To Ski Resort Survives Establishment Clause Challenge

In Freedom From Religion Foundation, Inc. v. Weber, (D MT, June 24, 2013), a Montana federal district court rejected an Establishment Clause challenge to the U.S. Forest Service's renewal of  of a Special Use Permit issued to the Knights of Columbus to allow the organization to continue to maintain a statue of Jesus near a ski slope on Montana's Big Mountain. The land, owned by the federal government, is leased to a private ski resort.  The statue was originally placed on Big Mountain in 1954. Patterned after similar statues on ski slopes in Italy, it was intended to mark the memory of those who had died in World War II.  In reaching its conclusion, the court said in part:

Big Mountain Jesus has been the subject of much frivolity over the years.  In addition to serving as a meeting place on the mountain for skiers, and a site for weddings, it has not infrequently been observed adorned with ski poles, goggles, ski hats, mardi gras beads, and other attire, all secular in nature. In fact, frequent repairs have been made to the outstretched hands of Big Mountain Jesus which have been dislodged by passing skiers and snowboarders who have given a "high five" to the statue.

To the extent Big Mountain Jesus may have had some religious significance at the time of its construction by the Knights of Columbus, and may have provided from time to time spiritual inspiration or offense to some, over the course of the last 60 years the statue has become more of an historical landmark and a curiosity.

The Becket fund issued a press release announcing the decision. (See prior related posting.)

Suit Seeks Release of Records of Accused Priests

In Bemidji, Minnesota yesterday, a woman identified only as Jane Doe 4 filed a lawsuit against the Catholic Diocese of Crookston (MN) seeking release of files compiled by the diocese in 2002 listing the names of suspected child sexual abuse offenders.  According to yesterday's Bemidji Pioneer, the plaintiff was abused over 40 years ago when she was 9 years old by priest James Porter. Porter also abused some 20 boys in 1969-70.

Dearborn McDonald's Drop Halal Offerings After Settling Lawsuit

As previously reported, in April McDonald's settled for $700,000 a class action alleging that two of its restaurants in Dearborn, Michigan that advertised Halal chicken sometimes sold non-Halal meat. Now, according to AP, the two restaurants have completely stopped offering Halal products. Plaintiffs' attorney in the case said that this is a positive development, and that there are plenty of Halal options for consumers in Dearborn.

Department of Education To Collect Data On Religious and Sexual Orientation Bullying

The U.S. Department of Education Office for Civil Rights announced this month in a Paperwork Reduction Act Submission that it is expanding its civil rights data collection to include the number of allegations received by schools of bullying/harassment on the basis of religion and sexual orientation. Since 2009, the Department has collected data on bullying on the basis of sex, race, national origin and disability. In justifying the added data collection, the Department said:

The NIH’s Health Behavior in School -Aged Children Survey reported that 8.5% ofstudents (grades 6-10) are bullied about their religion. Another survey found that, of those whohad been subjected to religious slurs and degrading language in school, Jewish and Muslim students were more commonly targeted. Likewise, despite the lack of nationally representative or uniform school-level harassment data, bullying and harassment in educational settings of those perceived to be lesbian, gay or bisexual is reportedly common and has a negative impact on those students.

Today's San Francisco Examiner reports on the change. [Thanks to Michael Lieberman for the lead.]

Suit Challenges State Construction Grants To Religious Higher Education Entities

The ACLU yesterday announced the filing of a state court lawsuit seeking to prevent the state of New Jersey from providing construction grants to two sectarian religious institutions of higher education --an Orthodox Jewish rabbinical school and a Presbyterian seminary. The complaint (full text) in American Civil Liberties Union of New Jersey v. Hendricks, (NJ Super. Ct., filed 6/24/2013),  claims that the grants violate three provisions of the New Jersey Constitution that ban taxing to support religious institutions, ban spending government funds on private entities and prohibit the establishment of religion. The suit also claims that in making the grant to the rabbinical school New Jersey is violating the state law against discrimination because it is supporting an all-male institution and thus conferring special benefits on an organization that discriminates on the basis of sex. Beth Medrash Govoha, the rabbinical school, is scheduled to receive a $10.5 million grant for construction of a new library and academic space in an existing building. Princeton Theological Seminary is in line for a much smaller grant, just over $645,000, from technology infrastructure funds. The state legislature has until June 28 to reject the grants proposed by the governor's office.

Supreme Court Defines "Supervisor" For Title VII Workplace Harassment Cases; Causation In Retaliation Cases

Today in Vance v. Ball State University, (Sup. Ct., June 24, 2013), the U.S. Supreme Court in a 5-4 decision clarified who will be considered a "supervisor" in Title VII claims for workplace harassment that creates a discriminatory work environment. Employers may be vicariously liable where the harassment has been by a supervisor rather than by a co-worker. The Court held that an employee is a "supervisor" for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim.

In a second Title VII case, University of Texas Southwest Medical Center v. Nassar, (Sup. Ct., June 24, 2013), the Supreme Court in a 5-4 decision held that Title VII retaliation (as opposed to discrimination) claims must be proved according to traditional principles of but-for causation, not by the lessened mixed-motive causation test that applies to discrimination cases under Title VII. Washington Post reports on the decisions.

Supreme Court Agrees To Review Abortion Clinic Buffer Zone Law

The U.S. Supreme Court today granted certiorari in McCullen v. Coakley, (Docket No. 12-1168, cert. granted 6/24/2013) (Order List). In the case, the 1st Circuit (full text of 1st Circuit opinion) upheld a Massachusetts law that creates a 35-foot buffer zone around reproductive health care facilities from which demonstrators and sidewalk counselors are excluded. Only employees , emergency workers, persons passing by to other places and persons going to and from the facility are permitted. The Boston Globe reports on the Court's decision to review the case.

Israeli Cabinet Approves Extension of Daylight Savings Time Over Religious Opposition

The Jerusalem Post reported yesterday that Israel's cabinet has approved and sent to the Knesset for passage a bill that would extend daylight savings time until the end of October, conforming the country to the practice in Europe which ends daylight savings time on Nov. 1.  In Israel, daylight savings time has been an issue of contention between religiously observant Jews and the secular Jewish population. (See prior posting.) In the past the country ended daylight savings time in September on the weekend before Yom Kippur to make it easier to observe the 25-hour holy day fast.

Recent Articles of Interest

From SSRN:

• Caroline Mala Corbin & Steven Douglas Smith, Debate: The Contraception Mandate and Religious Freedom, (University of Pennsylvania Law Review Online, Vol. 161, No. 261, 2013).
• Michael Brody, Team Prayer in Sports: Why an Action-Based Inquiry into a Coach’s Conduct Should Prevent Courts from Following Borden’s Confusion About the Reasonable Observer, (May 21, 2013).
• Erik James Girvan & Grace M. Deason, Social Science in Law: A Psychological Case for Abandoning the 'Discriminatory Motive' under Title VII, (Cleveland State Law Review, Vol. 60, 1057 (2013)).
• Debbie Psihountas, Richard John Dippel & George Slusarz, Federal Discrimination of Married Same-Sex Couples, (June 18, 2013).
• Máiréad Enright, Preferring the Stranger? Towards an Irish Approach to Muslim Divorce Practice, ((2013) 49 Irish Jurist 65-97).

School Board Settles Claim of Religious Bias In Guidance Counselor Dismissal

Five Towns Patch reported Friday that the Lawrence, New York School District has settled for $145,000 a lawsuit brought by a former school guidance counselor who claimed that he was denied tenure and fired from his $140,000 per year job because school board members, most of whom are Orthodox Jews, thought plaintiff was anti-Orthodox. Based on the settlement, the federal case was closed on June 19. Plaintiff Jay Silverstein, who is Jewish but non-practicing, claimed his dismissal was part of the ongoing tension between Orthodox Jews who took control of the Lawrence school board in 2006 and the community's non-Orthodox residents. (See prior posting.)

Recent Prisoner Free Exercise Cases

In  Lowery v. Edmondson, (10th Cir., June 17, 2013), the 10th Circuit affirmed the dismissal of a complaint filed by an inmate who is a member of the Moorish Science Temple of America challenging an Oklahoma prison policy that prevents him from storing his fez in his cell.

In Holland v. Goord, 2013 U.S. Dist. LEXIS 85094 (D NY, June 17, 2013), a New York federal district court held that only a de minimis burden was placed on a Muslim inmate's free exercise rights when during the Ramadan fast he was required to drink some water in order to be able to produce urine for a drug test triggered by an informant's tip. The court dismissed plaintiff's due process, free exercise and RLUIPA claims. It also found qualified immunity as to damage claims against individual defendants.

In Morales v. Pallito, 2013 U.S. Dist. LEXIS 85870 (D VT, June 19, 2013), a Vermont federal district court dismissed an inmate's claim that the raising of American flags over Vermont's prisons is an establishment of religion and that it coerces inmates into worshiping the U.S. government as a deity.

In Tavares v. Amato, 2013 U.S. Dist. LEXIS 84930 (ND NY, June 18, 2013), a New York federal district court adopted a magistrate’s recommendation (2013 U.S. Dist. LEXIS 85436, May 14, 2013) and dismissed an inmate’s claim that his free exercise rights were violated when, as a result of being placed in involuntary protective custody, he was unable to engage in religious worship.

In Stergios v. United States, 2013 U.S. Dist. LEXIS 84462 (D ME, June 17, 2013), a Maine federal district court adopted a magistrate’s recommendation (2013 U.S. Dist. LEXIS 84779,  May 3, 2013), holding that petitioner could preserve for later when he was actually on supervised release his claim that restrictions on alcohol consumption during supervised release will infringe his religious freedom in connection with religions that use wine in their ceremonies.

In Jamison v. Atchison, 2013 U.S. Dist. LEXIS 86511 (SD IL, June 20, 2013), an Illinois federal district court held that an inmate could proceed with his free exercise and retaliation claims against a prison supervisor who refused to grant him a religious exemption from working on Saturday and instead moved him to non-worker housing.

In Hollins v. Curtin, 2013 U.S. Dist. LEXIS 85945 (WD MI, June 19, 2013), a Michigan federal district court denied a motion for reconsideration, rejecting the claim that his free exercise rights were infringed when he was not permitted to attend a Nation of Islam religious service because he was in segregation.

In Stepler v. Warden, Hocking Correctional Facility, 2013 U.S. Dist. LEXIS 86209 (SD OH, June 18, 2013) an Ohio federal magistrate judge recommended  permitting a Jewish inmate to proceed with his complaint regarding failure to provide a weekly prayer room and against one defendant for failure to provide kosher meals with sufficient calories. A number of other claims regarding kosher food and anti-Semitic verbal abuse were dismissed.

Russian Region Bans Religious Clothing and Symbols In Schools

In Russia, the governor of the Astrakhan Region in the southern part of the country announced yesterday that "explicitly religious" clothes and symbols will be banned in the Region's schools and colleges beginning September 1. According to Russia Beyond the Headlines, at a meeting of the regional council for issues of ethnicity and religion Governor Alexander Zhilkin said:

We must not forget that we are a secular state, and we will follow this path, no matter how certain groups try to unravel this system, both for reasons of ethnicity and religion. Those who oppose this idea are free to choose from a plenty of other countries to live in.

The Astrakhan Region is 46% Russian Orthodox and 16% Muslim.

U.S. Bankruptcy Court Approves Sharia-Compliant Chapter 11 Reorganization

As reported by Reuters and Nasdaq, on June 11, a New York federal bankruptcy judge approved what appears to be the first-ever Sharia-compliant Chapter 11 bankruptcy reorganization. The reorganization plan is for Arcapita Bank PLC, a Bahrain investment firm which offers Sharia-compliant investments to wealthy families, institutions and sovereign wealth funds in the Gulf region. The confirmed plan includes a Sharia-compliant loan and exit financing of up to $525 million that is to be extended to the company by Goldman Sachs. The entire reorganization process complied with Sharia law.  After confirmation of the plan, however, another problem arose. According to Reuters, Central Bank of Bahrain rules require Arcapita to obtain a fatwa from a supervisory board of Islamic law experts before undertaking new financing. Last Monday, Hani Alsohaibi, who had invested money with Arcapita, filed a motion asking the bankruptcy court to reject the debtor in possession loan to Arcapita from Goldman Sachs because only one member of the Sharia supervisory board had signed the fatwa setting the conditions for the loan.

Buddhist Anti-Muslim Extremism Increases In Myanmar

The New York Times yesterday explored the rise of anti-Muslim extremism among Buddhists in Myanmar. The article focuses on Buddhist monk Ashin Wirathu who is described as having "a rock-star following." The Times reports:

What began last year on the fringes of Burmese society has grown into a nationwide movement whose agenda now includes boycotts of Muslim-made goods. Its message is spreading through regular sermons across the country that draw thousands of people and through widely distributed DVDs of those talks. Buddhist monasteries associated with the movement are also opening community centers and a Sunday school program for 60,000 Buddhist children nationwide.

Cert. Petition Filed In Middle School Graduation Speech Case

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in A.M. v. Taconic Hills Central School District. In the case, the 2nd Circuit Court of Appeals rejected a free speech claim by a middle school student, the co-president of student council, who was not permitted to include a religious blessing at the end of her remarks at the school's Moving-Up Ceremony. (See prior posting.) ADF issued a press release announcing the filing of the cert. petition.

Suits Challenge Shift of California Parochial Schools' Sports Leagues As Religious Discrimination

As reported by the Los Angeles Daily News and the Ventura County Star, four parochial high schools filed three separate federal lawsuits yesterday against the California Interscholastic Federation Southern Section (CIF-SS) challenging the transfer of their sports teams to the Parochial Area league, with a resulting significant increase in travel time for students to reach the location of "away" games. Here is the full text of the complaint in one of the lawsuits-- Archdiocese of Los Angeles Education and Welfare Corp. v. California Interscholastic Association Southern Section, (CD CA, filed 6/20/2013). Claiming federal and state constitutional free exercise, equal protection and due process violations, the complaint alleges:

a discriminatory scheme to uproot Plaintiff religious schools out of their home geographic areas where they have been competing in athletic sports for decades and require them to travel excessive distances for the sole purpose of segregating them with other religious schools.

Israeli Police Investigate Chief Ashkenazi Rabbi For Fraud As Chief Rabbi Elections Approach

In Israel today, police fraud unit officers raided the home and office of Chief Rabbi Yona Metzger who has been under investigation for fraud, money laundering and accepting bribes. According to YNet News, Metzger (the country's Chief Ashkenazi Rabbi) is suspected of taking for himself hundreds of thousands of shekels he had raised for different NGOs. Metzger was brought in for questioning by police this morning, and a lien was placed on his and his associates' bank accounts. The terms of both the Ashkenazi and Sephardi Chief Rabbis, extended once, now expire on July 24. The Supreme Court has said that elections must be held by then. The contest, particularly for the Ashkenazi position, has become extremely acrimonious. (Jerusalem Post.)

Court Refuses "Sky Funeral" For Veteran; Gives Hospital Control of Body

In Newby v. Serpentfoot, (GA Super. Ct., June 17, 2013), a Georgia state trial court rejected an attempt by a "Ms. Serpentfoot" to claim the body of deceased veteran Leeveneous Dempsey who died while a patient at a hospital in Floyd County, Georgia.  Serpentfoot had a health care power of attorney from Dempsey, who died on April 14. Instead the court granted the petition of the Floyd Medical Center allowing it to direct disposition of Dempsey's body, saying that Serpentfoot planned "morally and legally reprehensible" acts on Dempsey's body.  According to the Rome (GA) News-Tribune, Serpentfoot, who is president of Word Problems and Problem Solvers, Cures — a religious organization based on her "Bad News Gospel"-- claimed to be Dempsey's de facto husband.  She wanted to provide Dempsey a "sky funeral," in which she would "dismember the body, extract and retain the bones for study and 'art' purposes, place the deboned flesh in the open to feed animals and fertilize plants and save a portion of the remains to deposit at sea." Dempsey was buried with military rites on Tuesday.

Suit Alleges Applicant For County Position Was Asked Illegal Questions About Religion, Political Views

The Austin Statesman reports today on a federal lawsuit that was filed this week by Robert Lloyd, an unsuccessful applicant for the position of Constable in Williamson County, Texas.  According to the complaint, the county Commissioners Court asked Lloyd illegal and irrelevant questions:

When defendants interviewed the five final applicants and their references for the constable position, they unabashedly and illegally asked questions about the applicants’ views on abortion, gay marriage, politics and whether they voted conservatively and voted Republican and their religious affiliation. 

Convictions of Faith Healing Parents Upheld

In State of Oregon v. Beagley, (OR App., June 19, 2013), the Oregon Court of Appeals upheld the negligent homicide convictions of Jeffrey and Marci Beagley in the faith-healing death of their 16-year old son.  The Beagley's, members of the Followers of Christ Church that rejects medical care, prayed for their son rather than seeking medical attention for a congenital abnormality that led to kidney failure. (See prior posting.) The appeals court rejected defendants' arguments that the indictment did not state a crime; that the court's jury instructions were erroneous; and that the court erroneously denied their motion to exclude evidence regarding the faith-healing death of their granddaughter. The court held that defendants:

have presented us with no compelling reason now to conclude that parents do not have a legal obligation to provide needed life-sustaining medical care for their children, nor that parents' constitutional right freely to exercise their religion encompasses a right unreasonably to fail to meet that obligation.

County, In Change of Heart, Says Maum Meditation Center Qualifies As A Religious Institution

Under the Lake County, Illinois zoning ordinances, "religious institutions" are permitted to operate in areas zoned for "estates."  Yesterday's Lake Forester reports that the County Department of Planning, Building and Development has finally decided that Maum Meditation is a religion after initially taking the position that Maum Meditation House of Truth could not operate in a home donated to it by one of its followers because it did not meet the "elements of religion." The Department's change of heart comes two weeks after Maum Meditation filed a federal lawsuit seeking to have the court declare that Maum Meditation is a religion. The county says it changed its mind after it received information showing that Maum Meditation is part of an "emerging new religious movement" from the Far East.

Court Upholds Refusal To Allow Church To Run Religious Services In City Homeless Shelters

In Caractor v. City of New York Department of Homeless Services, (SD NY, June  14, 2013), a New York federal district court rejected free speech, free exercise and equal protection challenges by the head of the Discovered Being Ministry to New York's refusal to permit him to conduct Christian religious services inside city homeless shelters. The court concluded that homeless shelters are non-public forums and that "DHS’s decision to limit access to external organizations that either assist in providing shelter, aid shelter residents to find permanent housing, or provide services mandated or authorized by law -- a restriction which consequently excludes religious organizations -- is both reasonable and viewpoint
neutral."

Federal Agencies Issue Guidelines For Houses of Worship In Developing Emergency Plans

The Obama Administration yesterday, at a White House event hosted by Vice President Biden, released  a progress report on executive action taken to reduce gun violence. Among the items highlighted by the White House is a new Guide for Developing High-Quality Emergency Operations Plans for Houses of Worship. The 32-page Guide, developed by six federal agencies, provides information for houses of worship in developing an emergency operations plan to deal with violence, arson and natural disasters. Religion News Service focuses particularly on the Guide's recommendations on dealing with active shooter incidents.

Preliminary Injunction Allows Religious College To Exclude Certain Contraceptives From Student Health Plan, Pending Final Decision

As previously reported, a challenge to the Affordable Care Act contraceptive coverage mandate by religiously-sponsored Geneva College is pending in federal district court in Pennsylvania. Yesterday in Geneva College v. Sebelius, (WD PA, June 18, 2013) (opinion) (order), the court granted Geneva College a preliminary injunction pending a decision on the merits or a decision in a similar case by the 3rd Circuit or U.S. Supreme Court. The injunction allows the College to exclude from coverage in its student health insurance plan abortifacients to which it has religious objections. According to the Pittsburgh Tribune Review, Geneva College, which must choose a health plan by Thursday for the coming school year, would have opted for no insurance coverage for students instead of coverage that violates its religious tenets.

Judge's Religious Comments During Sentencing Are Not Reversible Error

In State of Wisconsin v. Betters, (WI App., June 18, 2013), a Wisconsin state appeals court rejected defendant's claim that a trial court had improperly relied on religious considerations in sentencing him to a longer term than was recommended by the pre-sentence report or requested by the state. In a plea agreement, Robert Betters plead guilty to repeated sexual assault of a child and possession of child pornography  growing out of charges that he had repeated sexual contact with his girl friend's two teenage sons. As described by the appeals court:

During sentencing, the [trial] court remarked that “every child is a gift from God,” and indicated Betters’s conduct toward the boys was “an abomination in the sight of God and in the sight of man, and … totally unacceptable.”

The court of appeals concluded however:

Although the [trial] court used religious language, sparingly, during its analysis, Betters has failed to show that it is highly probable or reasonably certain his sentence was based on the court’s religious convictions. We stress again that the court’s invocations of a religious deity were ill-advised. However, not every “ill-advised word” will create reversible error.

AP reports on the Court of Appeals decision.

Suit Challenges NYPD's Muslim Surveillance Program

A federal lawsuit was filed yesterday challenging the constitutionality of the New York Police Department's surveillance program directed at Muslim religious and community leaders, organizations, businesses and at mosques.  The complaint (full text) in Raza v. City of New York, (ED NY, filed 6/18/2013), asserting free exercise, equal protection and establishment clause violations, summarizes the claims:

Since 2002, the New York City Police Department ("NYPD") has engaged in an unlawful policy and practice of religioius profiling and suspicionless surveillance of Muslim New Yorkers. This policy and practice has a false and unconstitutional premise: that Muslim religious beliefs and practices are a basis for law enforcement scrutiny.

The ACLU issued a press release announcing the filing of the lawsuit. A similar lawsuit was filed last year by different plaintiffs in a New Jersey federal district court.

Obama Sends Senate The Nomination of New Ambassador To Holy See

Yesterday President Obama sent to the United States Senate the nomination of Kenneth Francis Hackett to be U.S. Ambassador to the Vatican. (White House announcement.) As reported last week by Religion News Service, the nomination of Hackett, the former head of Catholic Relief Services, is not likely to be controversial.  The White House gave further information about Hackett last week when it announced its intent to nominate him. The U.S. ambassadorship to the Holy See has been vacant since last November when Miguel Diaz resigned to become University Professor of Faith and Culture at the University of Dayton.

Hearing Officer Says Christian Pregnancy Center Is Eligible In Government Loan Program

In a case on remand from a federal district court (see prior posting), a hearing officer in the Department of Agriculture's National Appeals Division held that the Department of Agriculture was wrong in denying a Christian pregnancy resource center eligibility for a direct loan under the agency's Community Facilities Loan Program.  In In re Care Net Pregnancy Center of Windham County, (Dept. Agr. Natl. App. Div., June 14, 2013), the hearing officer held that the loan denial because of voluntary Bible classes offered by Care Net to its clients violated the Department's rules properly construed:

These Department regulations do not prohibit Agency funding of Appellant’s Program loan since Appellant’s voluntary Bible classes do not impose an additional cost of facility construction or renovation (e.g., do not require the building of a chapel, sanctuary, church, worship center, or other building fixture principally used for inherently religious activities). If Appellant were to make its incidental and voluntary Bible classes mandatory or use coercion, or were to change its operations to become dominated by inherently religious activities and costs were imposed on secular activities, then a different analysis would result.

The hearing officer also held that the loan denial violates the Free Speech, Free Exercise and Equal Protection clauses of the U.S. Constitution, saying in part:

Agency would have found Appellant eligible for the Program loan so long as Appellant keeps religious speech out of the building or segregated to a separate room – a literal religious gerrymander. Adopting Agency’s approach would require any religious discussion, regardless of whether it were to be initiated by Appellant or its clients, to cease and for the participants of that discussion to pause, leave the facility or room, and travel elsewhere to reengage in the discussion. This effect is more than an incidental burden on a particular religious practice or belief: it is significant pressure, which will almost certainly cause clients to end prematurely or avoid any religious discussion altogether. Such a burden would facilitate a “chilling effect” on such discussion....

Alliance Defending Freedom issued a press release announcing the decision.

In Important Decision, New Hampshire Court Invalidates Tax Credit Scholarships To Sectarian Schools

In Duncan v. State of New Hampshire, (NH Super. Ct., June 17, 2013), a New Hampshire trial court judge in a precedent-setting 45-page opinion held that New Hampshire's Education Tax Credit program violates the state constitution's ban on compelling any person to support sectarian schools (Art. 6) and its "No Aid" clause (Art. 83), insofar as the state allows scholarship funds generated by the program to be used at religious schools. The court relied on a newly-enacted statutory amendment broadening taxpayer standing (RSA 491.22 I) to allow all the taxpayer plaintiffs in the suit to maintain the action.  Departing from interpretations of the federal and some other state constitutions, the court also held that even though the state constitution's "No Aid" clause refers to expenditure of "money raised by taxation," it also applies to funds contributed to scholarship organizations for which businesses receive a tax credit.  The court said:

Money that would otherwise be flowing to the government is diverted for the very specific purpose of providing scholarships to students....

[Articles 6 and 83] broadly obstruct, or bar, the provision of, or diversion of, "public funds." or tax monies, to financially aid "the schools of a religious sect or denomination."

The court held, however, that the program of scholarships funded by contributions for which businesses received tax credits may continue so long as scholarships are awarded only for attendance at non-religious schools. The Cato Institute reports at length on the decision. (See prior related posting.)

Christian Church Leaders In Ireland Held In Contempt In Church's Financial Woes

The press in Ireland reports on the financial woes of Victory Christian Fellowship, a church which, according to the Sunday World, took 10% of its followers' income by preaching "the more money you give the more blessings you get." As reported yesterday by The Independent, the church lost its tax exempt status for engaging in excessive commercial activity.  This in turn led the Bank of Scotland to call in unpaid loans of 18 million Euros. When the bank sent in receivers to take possession of the church's three prime properties, they were blocked by church staff and congregation members. Friday's Kildare Nationalist reports that this led the court to hold three trustees of the church in contempt. To avoid jail, the trustees agreed to facilitate a peaceful handover of the church's three Dublin properties to the bank's receivers last Friday afternoon.

Egyptian Courts Continue To Convict for Insulting Religion

Courts in Egypt apparently continue to vigorously enforce Egyptian laws barring contempt of religion, reflecting Article 44 of Egypt's Constitution which provides: "Insult or abuse of all religious messengers and prophets shall be prohibited."

On June 11 in Luxor, the Misdemeanor Court fined a Coptic Christian elementary school teacher EGP 100,000 ($14,000 US) for insulting Islam. According to Egypt Daily News, parents of three students complained that 24-year old Demiana Abdel Nour told students that the late Pope Shenouda III performed more miracles than the Prophet Muhammad, and that the teacher also placed her hand on her stomach to convey nausea when mentioning Muhammad. A number of students though said that no such attacks on religion had taken place.

Meanwhile, on June 16, a Misdemeanor Court in Nasr City convicted conservative Islamic preacher and TV channel owner Abu Islam (Ahmed Abdallah) of tearing up a Christian Bible in a demonstration outside the U.S. embassy last September and for saying on a TV program that 90% of the women protesters in Tahrir Square were Christians who came there "half naked" in order to get sexually harassed. According to Egypt Daily News, he was sentenced to 5 years for tearing the Bible, 3 years for insulting religion, and an additional 3 years for disturbing public peace. He was also fined EGP 3,000 ($425 US). Abu Islam's son was sentenced to 8 years in prison and a fine of EGP 2,000 for participating in the demonstration. The sentences will be suspended pending appeal.

Recent Articles of Interest and Call For Papers

From SSRN:

• Vivian Grosswald Curran, Book Review: Gilles Cuniberti, Grands Systèmes De Droit Contemporains (2d ed., L.G.D.J., 2011), (American Journal of Comparative Law, Vol. 61, p. 721, 2013).
• Lucia Ann Silecchia, On 'Unease' and 'Idealism': Reflections on Pope Benedict XVI's Educating Young People in Justice and Peace and Its Message for Law Teachers, (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 27, No. 2, 2013).
• Elizaeth Sepper, Doctoring Discrimination in the Same-Sex Marriage Debates, (Indiana Law Journal, Forthcoming 2014).
• Alan D. Miller & Ronen Perry, A Group's a Group, No Matter How Small: An Economic Analysis of Defamation, (Washington and Lee Law Review, Vol. 70, 2013).
• Amanda Reid, Private Memorials on Public Space: Roadside Crosses at the Intersection of the Free Speech Clause and the Establishment Clause, (Nebraska Law Review, Vol. 92, p. 501-561, 2013).

From SmartCILP amd elsewhere:

• Deepa Das Acevedo, Secularism in the Indian Context, (38 Law & Social Inquiry 138-167 (2013)).
• Anthony V. Alfieri, Community Education and Access to Justice in a Time of Scarcity: Notes from the West Grove Trolley Garage Case, (2013 Wisconsin Law Review 121-143).
• Brooke Goldstein & Benjamin Ryberg. The Emerging Face of Lawfare: Legal Maneuvering Designed to Hinder the Exposure of Terrorism and Terror Financing, (36 Fordham International Law Journal 634-656 (2013)).
• Abraham M. Lackman, The Collapse of Catholic School Enrollment: The Unintended Consequence of the Charter School Movement, 6 Albany Government Law Review 1-20 (2013).
• Clark B. Lombardi, Constitutional Provisions Making Sharia "A" or "The" Chief Source of Legislation: Where Did They Come From? What Do They Mean? Do They Matter?, [Abstract], (28 American University International Law Review 733-774 (2013)).
• C.M.A. McCauliff, Dreyfus, Laicite and the Burqa, (28 Connecticut Journal of International Law 117-151 (2012)).
• SpearIt, Raza Islamica: Prisons, Hip Hop & Converting Converts, (22 Berkeley La Raza L.J. 175-201 (2012).)
• Seventh Annual John F. Scarpa Conference on Law, Politics, and Culture: Living the Catholic Faith in Public Life. Articles by Abp. Charles J. Chaput, Helen Alvare, Patrick McKinley Brennan and Michael J. White. [Abstract]. 58 Villanova Law Review 371-470 (2013).
• Symposium:  Law, Religion, and Lautsi v. Italy. Maine Law Review, Vol. 65, No. 2 (2013).

Call For Papers:

• Section on Law and Religion Call for Papers for January 2014 AALS Annual Meeting Program: “Cooperating With Evil, Complicity with Sin.”

New York Court Lifts Kirpan Ban After Sikh Groups Resolve Dispute

Sikh Wire reports that on Friday, a New York state trial court judge lifted the ban he had imposed in May 2010 on the carrying ban of the kirpan, the ceremonial dagger, inside the Gurdwara in Rochester (NY). The ban was originally imposed because of a dispute between two Sikh groups. Later the ban was liberalized so that clergy could carry kirpans. According to Sikh Wire:

After protests by Sikhs in the US and elsewhere against the ban on their religious right to wear the kirpan, the Akal Takht – the supreme spiritual institution of the Sikhs in Amritsar – appointed a seven-member committee in the US to get the kirpan ban removed, and help the two warring parties at the gurdwara resolve differences.

Recent Prisoner Free Exercise Cases

In Mansfield v. Missouri Department of Corrections, (8th Cir., June 10, 2013), the 8th Circuit held that prison official's compelling interest in security justified their denial of group worship services for members of the Christian Separatist Church Society.

In Small v. Wetzel, (3d Cir., June 11, 2013), the 3rd Circuit upheld a district court's dismissal of Muslim inmates' complaints about a strip search with female prison staff present and one inmate's complaint about the requirement to sign Guidelines in order to participate in the Ramadan fasting program. However the court did permit plaintiff to proceed  with an equal protection claim for nominal damages based on the prison not requiring Jewish prisoners to sign similar Guidelines to participate in their holy day observances.

In Laurensau v. Romarowics, (3rd Cir., June 13, 2013), the 3rd Circuit upheld removal of an inmate from the kosher diet program because he failed to show a sincerely held religious belief.

In Bucano v. Sibum, 2013 U.S. Dist. LEXIS 79514 (MD PA, June 6, 2013), a Pennsylvania federal district court agreed with a federal magistrate judge's recommendation (2012 U.S. Dist. LEXIS 188330, Dec. 27, 2012) to dismiss without prejudice the claim by two inmates that being forced to eatnon-Kosher  food, being prohibited from being in the same cell, and being called "fake Jews" by a corrections officer violated their free exercise rights.

In Smith v. Owens, 2013 U.S. Dist. LEXIS 81198 (SD GA, June 10, 2013), a Georgia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 81416, May 9, 2013) and dismissed a complaint by a Hindu inmate who sought a vegan diet that he is unable to participate in the alternative entree meal plan.

In Chesser v. Rivas, 2013 U.S. Dist. LEXIS 82223 (SD IL, June 11, 2013), an Illinois federal district court allowed a Muslim inmate at a special federal high security unit to move ahead with religious freedom and other challenges to the ban on Arabic, the ban on shortened pants, imposing participation in receiving special food on non-Muslim holidays, denial of Halal meals for Islamic holidays, failure to provide an imam, and failure to provide food for breaking of religious fasts.

In Ericson v. Magnusson, 2013 U.S. Dist. LEXIS 82347 (D ME, June 12, 2013), a Maine federal district court dismissed for failure to exhaust administrative remedies a Protestant inmate's complaint that inmates in protective custody may not attend group religious services outside the unit. as well as complaints about other limitations on practicing his religion.

In United States v. Bowman, 2013 U.S. Dist. LEXIS 82652 (WD NC, June 12, 2013), a North Carolina federal district court granted an inmate's motion that both the court and the Bureau of Prisons recognize his newly adopted Islamic name, but only along with the name under which he was committed.

In Allen v. Virga, 2013 U.S. Dist. LEXIS 82825 (ED CA, June 11, 2013) a California federal magistrate judge permitted an inmate who is an adherent of the House of Yahweh Yahdaim who sought kosher meals which he had been denied because he is not Jewish to proceed on his claim for damages. Plaintiff was also granted leave to file an amended complaint setting out a RLUIPA claim.

In United States v. Zielinski, 2013 U.S. Dist. LEXIS 81510 (ND NY, June 11, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 82014, May 15, 2013) and revoked defendant's supervised release program because of his failure to participate in parts of it. The court concluded that the sex offender program did not burden a religious exercise, finding that "Objectivism" is not a religion.

In Maxwell v. Clarke, 2013 U.S. Dist. LEXIS 83461 (WD VA, June 13, 2013), a Virginia federal district court dismissed claims by a Rastafarian inmate that his rights under the 1st and 14th Amendments and RLUIPA were infringed when he was confined to segregation without permission to attend religious services for refusing to cut his hair as required by the prison's grooming policy.

In Quinn v. Knab, 2013 U.S. Dist. LEXIS 82542 (SD OH, June 12, 2013), an Ohio federal district court dismissed an inmate's religious accommodation claim, finding that the claim for injunctive relief is moot since he was released from prison. It also held he cannot recover damages under RLUIPA from state employees in their personal capacities.

Judge Jones Misconduct Complaint Transferred To DC Circuit

As previously reported, on June 4 a misconduct complaint was filed against Judge Edith Jones, based in part on comments she made regarding a religious justification for capital punishment. Now, as reported yesterday by the New Orleans Advance, it appears that the complaint has been transferred from the Judicial Council of the 5th Circuit to the Judicial Council of the D.C. Circuit. On June 12, a Notice was posted on the U.S. 5th circuit Court of Appeals website indicating that a judicial conduct proceeding had been transferred. The Notice linked to a June 12 letter from U.S. Chief Justice John Roberts authorizing the transfer, and indicating that he had received a request on June 7 from the 5th Circuit for the transfer. The Judicial Conference Rules (full text) set out the basis for transfers.

UPDATE: On Thursday, Alliance for Justice submitted a letter (full text) in support of the misconduct complaint to the chief judge of the D.C. Circuit. It says that there is a long pattern of prejudicial statements and actions by Judge Jones, including her repeatedly speaking of the primacy of religion above law.

Jewish Prisoner Wants Permission To Be Circumcised

Prison authorities in Florida are facing an unusual religious accommodation question.  WEAR News yesterday reported that inmate Pablo Diaz, whose mother was Jewish and who has been active in the Jewish prison ministry at Blackwater River Correctional Facility, is requesting to be allowed to be circumcised. He directed his request to the state corrections department after similar previous request was turned down by the warden. The 37-year old Diaz is serving a life sentence for kidnapping, aggravated battery with a deadly weapon and manslaughter. The non-profit group Brit Yosef Yitzchak has offered to perform the religious circumcision free of charge.

Suit Claims Discriminatory Treatment In Censorship of Atheist Materials Handed Out In Schools

As previously reported, last month the Central Florida Freethought Community made materials on Atheism available to students in eleven Orange County, Florida high schools.  This was permitted in order to allow them the same privilege as was given to World Changers of Florida which handed out Bibles in the schools in February. Now, however, the free thought group's parent body (FFRF) has filed a lawsuit claiming that their literature faced censorship while World Changers did not.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Orange County School Board, (MD FL, filed 6/13/2013), charges that school officials allowed FFRF to distribute only 11 of 20 of the books and pamphlets it submitted. The others were prohibited as age inappropriate or because they would create substantial disruption.  In particular one publication was disallowed because its claim that Jesus was not crucified or resurrected made it age inappropriate, even though the Bibles distributed expresses an opposite viewpoint on the same issue. The suit claims unconstitutional viewpoint discrimination, prior restraint and violation of the equal protection clause. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

House Hearing Is Critical of US Implementation of International Religious Freedom Act

Yesterday, the Subcommittee on National Security of the U.S. House Oversight & Government Reform Committee held a hearing titled "Examining the Government’s Record on Implementing the International Religious Freedom Act." A video of the hearing and transcripts of all the witnesses' prepared statements are available on the Committee's website.  The hearing began with a kerfuffle over the State Department's refusal to make Ambassador-at-Large for International Religious Freedom Suzan Johnson Cook available to testify because of the Committee's insistence that all witnesses testify on a single panel.  State Department policy does not permit executive branch officials to testify on panels with non-government witnesses.  Four witnesses did testify-- USCIRF Chair Katrina Lantos Swett; director of Georgetown's Religious Freedom Project, Thomas F. Farr; Chris Seiple, President of Institute for Global Engagement; and Amjad Mahmood Khan, National Director of Public Affairs of the Ahmadiyya Muslim Community USA.

In her testimony, USCIRF Chair Swett said in part:

Unfortunately, neither Republican nor Democratic Administrations have fully utilized IRFA as the key foreign policy tool it was intended to be. Neither have designated CPCs in a timely manner nor issued specific Presidential actions based on these designations.

Mr. Farr in his testimony also criticized U.S. action:

Notwithstanding the hard, creative work of the State Department’s Office of International Religious Freedom, it would be difficult to name a single country in the world over the past fifteen years where American religious freedom policy has helped to reduce religious persecution or to increase religious freedom in any substantial or sustained way.

French Appeals Court Upholds Order Requiring Twitter To Disclose Names of Anti-Semitic Tweeters

According to CNet News and JTA, in France yesterday the Paris Court of Appeal upheld a lower court order requiring Twitter to turn over to the Union of Jewish French Students (UEJF) and four human rights groups that brought suit the names of individuals who last October posted Tweets using anti-Semitic hashtags. The hashtags were used in a kind of competition of anti-Semitic jokes. Twitter, which has already removed the Tweets, argued that as an American company, it should be protected by the First Amendment. The full text of Wednesday's opinion in Association L'Union des Etudiants Juifs de France (UEJF) v. Societe Twitter Inc., (Paris Ct. App., June 12, 2013) is available online in French.

Southern Baptists Adopt Resolution On Boy Scouts; Public Policy Spokesman Talks With Reporters

During its annual meeting yesterday, the Southern Baptist Convention adopted a lengthy resolution expressing the denomination's "continued opposition to and disappointment in the decision of the Boy Scouts of America to change its membership policy" to allow gays to become members of the Scouts.  (See prior posting.)  The resolution expressed concern that this may be the first step toward approving homosexual scout leaders. The resolution went on to:

affirm the right of all families and churches prayerfully to assess their continued relationship with the BSA, expressing our support for those churches and families that as a matter of conscience can no longer be part of the Scouting family....

we encourage churches and families that remain in the Boy Scouts to seek to impact as many boys as possible with the life-changing Gospel of Jesus Christ, to work toward the reversal of this new membership policy.... 

we declare our love in Christ for all young people regardless of their perceived sexual orientation, praying that God will bring all youth into a saving knowledge of our Lord Jesus Christ.

The resolution encourages churches that sever ties with the Scouts to expand their Royal Ambassador ministry program for boys. Baptist Press has a report along with the full text of the resolution.

At the meeting, Russell Moore, newly elected president of the Convention's Ethics & Religious Liberty Commission held his first press conference. (BP report.) He told reporters that religious liberty has become the most significant issue in American culture. Focusing on engagement with the broader society, he said that "expressions of outrage, boycotts consistently against everyone who doesn't conform to our sense of values [are] not an effective way to engage culture." On politics, he said: "[T]he church of Jesus Christ is not owned by any political party and shouldn't be co-opted by any political party."

Judge Refuses To Dismiss Faith Healing Parents Murder Case

According to Reuters, a Philadelphia Municipal Court judge yesterday ruled that the murder and involuntary manslaughter case against Herbert and Catherine Schaible should proceed to trial.  The couple, charged in the faith-healing death of their 7-month old child, had sought to have the charges dismissed on the ground that they did not know their child was sick enough to die, and thus there was no gross negligence or malice. The couple had previously been convicted of involuntary manslaughter in the faith healing death of another of their children. (See prior related posting.)

Plaintiffs Lack Standing To Challenge Arizona Day of Prayer Proclamations

In Freedom From Religion Foundation, Inc. v. Brewer, (AZ App., June 11, 2013), an Arizona state Court of Appeals held that a group of Maricopa County residents and a organization promoting church-state separation lack standing to to challenge Governor Janice Brewer's Day of Prayer proclamations. Plaintiffs alleged that the proclamations violated Article 2, Section 12  (Religion Clause) and Article 20, Par. 1 (perfect toleration of religion clause) of the Arizona Constitution.  The court, finding no distinct harm to plaintiffs, said:

Appellants have offered no explanation why their feeling of offense is any greater than that of a large segment of the general public nor how such purported psychological harm amounted to a discrete and palpable injury. Accordingly, we conclude they lack standing to bring their complaint. 

The court also found that plaintiffs had not alleged taxpayer standing, and that the standing requirements should not be waived. AP reports on the decision. (See prior related posting.)

10th Circuit: Native American Legend On License Plate Supports Pastor's Compelled Speech Claim

In Cressman v. Thompson, (10th Cir., June 11, 2013), the U.S. 10th Circuit Court of Appeals held that plaintiff states a plausible First Amendment "compelled speech" claim in objecting to what he views as a religious depiction on Oklahoma's 2009 license plates. The plates include a depiction of a sculpture titled "Sacred Rain Arrow" showing a Native American shooting an arrow toward the sky. The sculpture is based on a Native American legend in which a medicine man blesses a warrior's bow and arrows during a time of drought. Plaintiff Kieth Cressman, a United Methodist pastor, says that the belief in sacred objects, multiple gods and the ability of humans to use sacred objects to convince gods to alter nature represented by the legend all contradict his Christian religious beliefs. He does not want to display those beliefs on his automobile.  The court refused to dismiss the claim, saying that further factual development is necessary to determine whether others would perceive the license plate as conveying the message that Cressman alleges it does. The Oklahoman reports on the decision.

UPDATE: On June 12, the 10th Circuit announced that a clerical error had led to the June 11 decision failing to include a dissent by Judge Kelly.  The court reissued the decision, including the dissent.

Israeli Knesset Passes Law Requiring 4 Women On Rabbinical Judges Selection Committee

In Israel, government-appointed judges of rabbinical courts have jurisdiction over issues of Jewish marriage and divorce in the country.  The rabbinical court judges are chosen by the Selection Committee for Rabbinical Judges.  The Jerusalem Post and New York Jewish Week report that Israel's Knesset yesterday, over strong objections by haredi (ultra-Orthodox) parties, passed a law increasing the size of the selection committee from 10 to 11, and requiring that 4 of 11 places on the committee be reserved for women.  Women's advocacy groups hope this will lead to the appointment of judges who are more attuned to women's concerns, particularly in divorce cases. Under past law, the selection committee was made up of Israel's two chief rabbis, two judges from the Rabbinic Court of Appeals, two government ministers, and two lawyers representing the Israel Bar Association. Under the new law, which will take effect only after the next Knesset elections, one of the representatives from the government, one from the Knesset and one from the bar association will be women. Also the Minister of Justice will appoint a fourth woman who must be a rabbinical courts advocate.

South Carolina Episcopal Diocese Property Dispute Sent Back To State Court

In Protestant Episcopal Church In The Diocese Of South Carolina v. The Episcopal Church, (D SC, June 10, 2013), a South Carolina federal district court remanded to the state court a lawsuit over church property that had been removed to federal court.  In the case, the break-away Episcopal Diocese of South Carolina originally filed suit in state court against The Episcopal Church to establish the break-away Diocese's right to the real and personal property of the Diocese and its parishes. (See prior posting.) The Episcopal Church through its state affiliate, removed the case to federal court claiming that the case raises federal questions under the 1st Amendment and the Lanham Act. The court, however, emphasized that plaintiffs' complaint raised only claims based on South Carolina statutes. For removal, a federal issue must be an essential element in plaintiff's case, raised on the face of its complaint. Any 1st Amendment issue in this case is essentially a defense. Anglican Curmudgeon and Episcopal Church in South Carolina discuss the decision from opposite perspectives.

Muslims May Proceed With Equal Protection Challenge To Discriminatory Religious Interrogation At US-Canadian Border

In Cherri v. Mueller, (ED MI, June 11, 2013), a Michigan federal district court permitted four Muslim-Americans to proceed with their suit against federal officials. The suit charges that when Muslims re-enter the United States from Canada, they are extensively questioned about Islamic religious philosophy and views, practices, and locations where they worship. According to the court:

This case presents an issue of first impression.... In short, the question before the Court is whether the Government has unfettered discretion to question at the border a specific class of individuals about their religious practices and beliefs after being profiled and detained solely because of those religious practices and beliefs.

After finding that plaintiffs have standing to challenge the government practice, federal district judge Avern Cohn dismissed their free exercise, RFRA, Establishment Clause and retaliation claims.  However he found that plaintiffs had adequately stated a claim under the equal protection component of the 5th Amendment:

Plaintiffs have adequately pled that Defendants have a policy, custom and practice of questioning only Muslim American’s at the border about their religious practices and beliefs. Moreover, Plaintiffs have sufficiently alleged that such policy, practice and custom targets a suspect class and has no rational basis. At this stage in the case, Plaintiffs’allegations are sufficient. The Fifth Amendment claim, therefore, will not be dismissed.

The Detroit Free Press reports on the decision. (See prior related posting.)

Russian Duma Passes Laws Banning Insulting of Religious Feelings and Disseminating Homosexual Propaganda To Minors

Yesterday in Russia, the Duma-- the lower house of Russia's Parliament-- passed two bill of interest. The first is a ban on publicly insulting religious feelings. As reported by RT, the Duma passed amendments to Article 148 of the Criminal Code (full text of bill in Russian) that would punish offenses by up to three years in prison and a fine of 500,000 rubles ($15,600 US).  The bill also imposes up to one year in prison and disqualification for certain public offices for two years for anyone convicted of obstructing the activities of religious organizations. Premeditated and public desecration of religious objects or books will be punishable by fines of up to 200,000 rubles ($6,200 US). The bill is strongly backed by the Russian Orthodox Church, particularly after the widely publicized punk-band Pussy Riot demonstration in Moscow's main cathedral last February. (See prior posting.)  Here is the legislative history page from the Duma (in Russian). To become law, the bill must still be approved by the Federation Council, the Upper House of the Russian parliament, and signed by President Putin.

The Duma yesterday also passed by an overwhelming vote a bill that would outlaw homosexual propaganda aimed at individuals under 18 years of age. (Legislative history page in Russian.) The bill primarily embodies amendments to the Law On Protection of Children From Information Harmful To Their Health and Development (full text of bill in Russian).  According tp Russia Beyond the Headlines the bill describes its purpose as combating "the dissemination of information that aims to induce minors to develop non-traditional sexual attitudes, to see non-traditional sexual relationships as attractive, to develop the distorted notion that traditional and non-traditional sexual relationships possess the same value, or the dissemination of information on non-traditional sexual relationships that arouses interest in such relationships."

Fines for violations of the bill's prohibitions vary depending on whether the violator is a private individual, an official, or an entity. Fines are higher if the prohibited information is disseminated through the media or on the Internet. Foreign nationals who violate the law also face arrest of up to 15 days and expulsion from the country. This bill must also still be approved by the Federation Council and signed by President Putin before it finally becomes law.

No Religious Discrimination In Disciplining Employee For Preaching At Lesbian Co-Worker

In Hall v. Tift County Hospital Authority, 2013 U.S. Dist. LEXIS 80913 (MD GA, June 10, 2013), a Georgia federal district court dismissed religious discrimination claims brought by a Baptist nursing supervisor against a hospital that disciplined her for giving a lesbian nurse she sometimes supervised a pamphlet and sending her an e-mail emphasizing the sinfulness of homosexuality.  The court rejected plaintiff's claim that the disciplinary action against her violated Title VII, the equal protection clause, and her 1st Amendment free speech and free exercise rights.

Pennsylvania House Honors Landmark SCOTUS Decision By Declaring Public School Religious Freedom Month

According to AP, the Pennsylvania state House of Representatives yesterday unanimously passed House Resolution 351 declaring June 2013 as "Public School Religious Freedom Month."  June 17 is the 50th anniversary of the U.S. Supreme Court's landmark decision in School District of Abington Township, Pennsylvania v. Schempp, striking down Pennsylvania's opening of the public school day with Bible reading and recitation of the Lord's Prayer. The House Resolution praises the Supreme Court's vindication of the rights of conscience.

Misconduct Charges Against 5th Circuit Judge Include Her Religious Justifications For Capital Punishment

As reported by the Austin Chronicle and Courthouse News Service, six civil rights groups and seven individuals, most with special expertise in legal ethics, last week filed judicial misconduct charges against U.S. 5th Circuit Judge Edith Jones primarily over comments she made in a lecture titled "Federal Death Penalty Review."  The talk was given at the University of Pennsylvania Law School on February 20.  The Complaint (full text) alleges that Judge Jones' conduct was "prejudicial to the effective and expeditious administration of the business of the courts, undermines public confidence in the integrity and impartiality of the judiciary, and creates a strong appearance of impropriety."

The Complaint filed with the 5th Circuit pursuant to 28 U.S.C. § 351(a) focuses on a variety of Jones' remarks-- many uncomplimentary to racial and ethnic minorities and dismissive of defenses raised in capital cases.  In addition, the Complaint alleges that Judge Jones, focusing on the Biblical origins of the death penalty, argued that:

The United States system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution.