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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Recent Articles of Interest

From SSRN:

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

From SmartCILP:

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

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

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

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

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

Buddhist Temple Area In India Hit By Terrorist Explosions

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

Recent Prisoner Free Exercise Cases

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

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

In Israel, Ultra-Orthodox Abuse Haredi Military Enlistees

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

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

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

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

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

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

Spiritual Counselor's Challenge To Fortune Telling Ordinance Dismissed On Ripeness Grounds

In Davis v. City of Selma, (ED CA, July 2, 2013), a California federal district court dismissed on ripeness grounds various challenges to the city of Selma, California's ordinance which requires "Fortune Tellers" to obtain a license in order to provide services within the city.  Plaintiff, a spiritual counselor, initially sought a business license under the Selma Municipal Code ("S.M.C."), but never completed the application process because it was too restrictive.  Instead she sued claiming violations of her rights under the 1st and 14th Amendments and RLUIPA. Dismissing plaintiff's claims, the court said in part:

Plaintiff has not shown intent or a concrete plan to violate the S.M.C., Plaintiff has not been subject to a threat of enforcement, nor has the S.M.C. ever been enforced against anyone that the Court has been made aware of.

Only 5 Days For Lower Court Opinion To Cite SCOTUS Decision On DOMA [Corrected]

It took only 5 days for a lower federal court to become one of the first to cite the U.S. Supreme Court's recent landmark Defense of Marriage Act decision. Relying on language in United States v. Windsor, a federal district court has refused to dismiss a same-sex couple's equal protection challenge to Michigan's ban on adoptions by same-sex couples and its state constitutional ban on same-sex marriage.  In DeBoer v. Snyder, (ED MI, July 1, 2013), a Michigan federal district court said:

Plaintiffs’ equal protection claim has sufficient merit to proceed. The United States Supreme Court’s recent decision in United States v. Windsor ... has provided the requisite precedential fodder for both parties to this litigation. Defendants will no doubt cite to the relevant paragraphs of the majority opinion espousing the state’s “historic and essential authority to define the marital relation.”... 

On the other hand, plaintiffs are prepared to claim Windsor as their own.... And why shouldn’t they? The Supreme Court has just invalidated a federal statute on equal protection grounds because it “place[d] same-sex couples in an unstable position of being in a second-tier marriage.”... Moreover, and of particular importance to this case, the justices expressed concern that ... such discriminatory legislation would ... impair the rights of “tens of thousands of children now being raised by same-sex couples” as well.... This is exactly the type of harm plaintiffs seek to remedy in this case..... [T]his Court cannot say that plaintiffs’ claims for relief are without plausibility.

Yahoo! News reports on the Michigan decision.

CORRECTION: This posting originally indicated that this was the first decision to cite the Supreme Court's Windsor case. As Michael Worley in a comment to this posting indicates, actually the first citation was only 2 days after the SCOTUS decision in a different Michigan federal court opinion on domestic partner benefits.  For details on that case, see this posting.

Canadian Catholic Order Enters $18M Settlement With Abuse Victims

Canadian Press reports that on Wednesday a Quebec Superior Court justice approved an $18 million mediated settlement in a class action against the Congregation of Holy Cross brought by victims of sexual abuse suffered at three now-closed schools in Quebec run by the Catholic order. The abuse dates back as far as the 1950's and continued as late as 2001.  Under the settlement, some 206 victims (and in some cases their parents) will share $13 million. Individuals will receive between $10,000 and $250,000 depending on the type of abuse involved. The remaining $5 million covers attorneys fees and other expenses. The class action was originally filed in 2008.

Russian President Signs Bills Limiting Founders of Religious Organizations; Banning Adoptions By Same-Sex Couples

The media reported this week that Russian President Vladimir Putin has signed two bills into law. The first enacts changes to Article 9 of the law "On Freedom of Conscience and On Religious Associations" to prohibit certain individuals from founding religious organizations.  The ban applies to (1) foreigners or stateless persons who have been declared persona non grata in Russia and (2) individuals who have been involved in activities labeled as extremist by the courts. (Interfax report.)

 A second bill signed by Putin bars same-sex couples from adopting or obtaining custody of children. According to Interfax, the bill is aimed at  preventing the "spiritual suffering and stress, which, according to psychologists, are often experienced by children with same-sex parents."

Wisconsin Supreme Court Upholds Faith Healing Homicide Convictions

In State of Wisconsin v. Neumann, (WI Sup. Ct., July 3, 2013), the Wisconsin Superme Court in a 6-1 decision upheld the second degree reckless homicide convictions of the parents of an 11-year old girl who treated her undiagnosed diabetes with prayer instead of seeking medical treatment. The Court concluded, among other things, that the state statutes gave the parents sufficient notice that their conduct would carry criminal sanctions if their daughter died, despite a statute that protected faith-healing parents from child abuse charges. The court also rejected defendants' complaints regarding jury instructions relating to their sincere religious beliefs. Justice Prosser dissented, saying he was primarily interested in encouraging the bench, bar and legislature to revisit some of the troublesome questions posed by these cases. AP reports on the decision.

4th Circuit En Banc Decides 2 Limited-Service Pregnancy Center Disclaimer Cases

A sharply divided 4th Circuit Court of Appeals sitting en banc yesterday reversed on procedural grounds a district court opinion that invalidated a Baltimore ordinance requiring limited-service pregnancy centers to post disclaimers. The required signs must say that the facility does not provide or make referrals for abortions or certain birth-control services.  In Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, (4th Cir., July 3, 2013), in an opinion joined by 8 of the 12 judges hearing the case, the court said:

We refrain today from evaluating the ultimate merits of the Center’s claims, however, focusing instead on the preliminary errors made by the district court as it rushed to summary judgment. Those errors include the court’s denial to the City of essential discovery, its refusal to view in the City’s favor what evidence there is, and its verboten [sic.] factual findings, many premised on nothing more than its own supposition. In these circumstances, it is fitting to simply vacate and remand for properly conducted proceedings.

Judge Niemeyer wrote a dissent joined by Judges Wilkinson, Shedd, and Agee, saying in part:

Even though the City may have a compelling interest in preventing misrepresentations about abortion, it is not free to impose a requirement of speech on those who do not misrepresent. 

Judge Wilkinson also filed a separate dissent, saying in part:

In a case concerning a law that requires private, noncommercial organizations to convey a government-authored message, one would expect to find at least some acknowledgement of the dangers of state-compelled speech. But one will search the majority’s opinion in vain for any such recognition. Instead, the majority opts to opine on various points of civil procedure, apparently oblivious to the fact that litigation is not an end in itself, but a means of vindicating the substantive values underlying our legal order, among which I had hitherto supposed were the freedoms of conscience and belief.

(See prior related posting.)

A second case decided yesterday involved a Montgomery County, Maryland Resolution requiring limited-service pregnancy centers to post signs saying they do not have a licensed medical professional on staff, and that "the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider."  The 4th Circuit, en banc, in an 11-3 decision, affirmed a district court's preliminary injunction against enforcement of second part of the disclaimer requirement.  In Tepeyac v. Montgomery County, (4th Cir., July 3, 2013), the majority held that the district court applied the proper preliminary injunction standard and did not abuse its discretion.

Judge Wilkinson filed a concurring opinion. Judge Niemeyer filed a dissent that was joined by Judges Shedd and Agee arguing that both parts of the required disclaimer are unconstitutional.

The Washington Post reports on both decisions.

10th Circuit Upholds Constitutionality Of Racial and Religious Violence Ban In Federal Hate Crimes Act

In United States v. Hatch, (10th Cir., July 3, 2013), the 10th Circuit upheld as constitutional under the 13th Amendment the provision of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act that makes it a felony to physically attack a person because of that person’s race, color, religion, or national origin, even where the attack is solely intrastate. In this case, three white men had been charged with kidnapping a disabled Navajo man and branding a swastika into his arm.  The court held:

Congress confined the racial violence provision’s reach to aspects of race as understood in the 1860s when the Thirteenth Amendment was adopted. As to religion and national origin specifically, Congress found that “members of certain religious and national origin groups were . . . perceived to be distinct ‘races’” in the 1860s and therefore sought to protect these categories “at least to the extent such religions or national origins were regarded as races” in the 1860s.... Supreme Court precedent supports this finding.

9th Circuit: U.S. Enforcement of Foreign Award Against Church Is Constitutional

In Ohno v. Yasuma, (9th Cir., July 2, 2013), the 9th Circuit Court of Appeals upheld a California federal district court's enforcement under the Uniform Foreign-Country Money Judgments Recognition Act of a Japanese damage award against a church. The church unsuccessfully claimed that enforcing the award violated the 1st Amendment and was repugnant to public policy. Plaintiff Naoko Ohno was awarded $834,000 in a tort judgment in Japan in a suit in which she alleged that the Saints of Glory Church and its California-based pastor, under whose sway she fell, fraudulently induced her to transfer large sums to the Church at a time that she was depressed and physically ill. The 9th Circuit held that use of U.S. courts to enforce the judgment does not turn the Japanese judgment into state action subject to constraints of the U.S. Constitution, nor is the underlying cause of action repugnant to California public policy.

Delay Of Affordable Care Act Employer Mandate Could Raise Ripeness Issues In Business Challenges To Contraceptive Coverage Mandate

The White House announced yesterday that it is delaying implementation of the Affordable Care Act's employer mandate by one year in order to simplify reporting requirements for businesses.  As reported by the Washington Post, this means that businesses with over 50 employees that do not offer health care insurance meeting federal standards to their employees will not face the $2000 per employee fine until January 2015. The move now raises the question of whether any of the numerous small business lawsuits objecting on religious freedom grounds to complying with the contraceptive coverage mandate might be dismissed on ripeness grounds.  While there is nothing to suggest that the mandate will not ultimately be imposed, it could be tempting to a court to seize on a justiciability rationale instead of wrestling with the difficult free exercise issues posed by the mandate.

UPDATE: The Becket Fund argues that yesterday's policy change has no impact on the contraceptive coverage mandate because it is subject to a separate reporting requirement and excise tax penalty not mentioned in the Treasury Department's statement.

Ugandan Regional King Says Police Violated His Religious Rights In Barring His Visit To Another District

All Africa reported yesterday that in Uganda, Charles Wesley Mumbere who is King of the Rwenzururu region is asking the country's Constitutional Court to interpret Article 37 of the country's Constitution which provides:

Every person has a right as applicable to belong to, enjoy, practise, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others.

Police, afraid of violence between Bamba/Bawisi and the Bakonzo, prevented Mumbere from traveling to the Bundibugyo district where he was scheduled on June 30 to officiate over celebrations to mark the kingdom's peace day - the day the Bakonzo and Bamba broke away from Toro Kingdom. Demonstrations broke out last year when Mumbere visited Bundibugyo and set up shrines there. (Daily Monitor, July 8, 2012).

British Public TV Station Will Broadcast Call To Prayer During Ramadan

Reuters reports that British television's publicly-owned Channel 4 will be the first mainstream national station to broadcast the Muslim call to prayer during the upcoming month of Ramadan.  Beginning July 9, and continuing for the full month of the Ramadan fast, the station will broadcast the call to prayer at 3:00 A.M. A station official said that he particularly wants to give voice to mainstream Muslims after the anti-Muslim backlash that has followed the May killing on a London street of a British Afghanistan War veteran. Channel 4 has a history of controversial programming and expects criticism for this decision.

Gitmo Detainees Seek End To Force-Feeding, Saying It Will Violate Religious Freedom During Ramadan

Four Guantanamo Bay detainees-- all of whom have been cleared for release-- filed a motion on Sunday in their long-pending habeas corpus cases seeking to force the U.S. government to end force-feeding of detainees participating in a hunger strike. (Press Release from Reprieve.) The motion (full text) in Belbacha v. Obama, (D DC, filed 6/30/2013), in addition to broader arguments against force feeding, argues that with the month of Ramadan starting shortly, force-feeding during daylight hours will violate detainees' religious freedom in violation of the Geneva Convention and the Religious Freedom Restoration Act. Reprieve announced Monday that the court has ordered the government to respond to the motion for a preliminary injunction by July 3.

Pro-Life Student Group Sues Over Required Security Fees For Event

A pro-life student group at New York's University of Buffalo filed a federal lawsuit last week challenging the University's policy of requiring student groups sponsoring controversial events to pay for campus police to be  present for security.  The complaint (full text) in UB Students For Life v. Tripathi, (WD NY, filed 6/28/2013), claims that the group's free expression, due process and equal protection rights were infringed when University officials decided that an abortion debate the group was sponsoring might attract hecklers and so required the group to pay nearly $650 to cover the cost of required campus security.  The complaint alleges that

UB policy and practice grants administrators unbridled discretion to deem student organization events “controversial” based on the content or viewpoint of the speech or the actual or potential reactions of listeners.

ADF issued a press release giving additional information about the lawsuit.

Australian MP Faces Online Abuse For Swearing-In As Cabinet Member On Koran

Today's Sydney Morning Herald and the Brisbane Courier Mail report on the abusive reaction on Facebook and Twitter to the swearing in on the Koran of Labor Member of Parliament Ed Husic as Australia's first Muslim frontbencher.  Husic was appointed by Prime Minister Kevin Rudd as Parliamentary Secretary to the Prime Minister and Parliamentary Secretary for Broadband.  While Husic is a non-practicing Muslim, he said it was a straight forward decision to be sworn in on the Koran. Husic is the son of Bosnian Muslim immigrants. A number of members of Parliament decried the social media reaction and praised the multiculturalism symbolized by Husic's appointment.

Yeshiva University Chancellor Retires; Apologizes For Handling of Sex Abuse Reports In 1980's

Yesterday Rabbi Norman Lamm, Chancellor and formerly long-time President of Yeshiva University announced in a letter that he is stepping down from his position as Chancellor and head of the rabbinical school at Yeshiva. As reported by The Forward, 85-year old Lamm's retirement comes amid growing pressure over mishandling of reported sexual abuse at Yeshiva University High School in the 1970' and 1980's, during Lamm's University presidency. As reported last December by The Forward, the accused abusers-- the high school principal and a Talmud teacher-- were not reported to authorities.  The principal eventually took a position elsewhere and the teacher retired. Both of the men, who now live in Israel, deny the allegations against them. In his letter yesterday announcing his retirement, Lamm wrote at some length about his mishandling of the abuse reports:

At the time that inappropriate actions by individuals at Yeshiva were brought to my attention, I acted in a way that I thought was correct, but which now seems ill conceived. I understand better today than I did then that sometimes, when you think you are doing good, your actions do not measure up. You think you are helping, but you are not. You submit to momentary compassion in according individuals the benefit of the doubt by not fully recognizing what is before you, and in the process you lose the Promised Land.... 

True character requires of me the courage to admit that, despite my best intentions then, I now recognize that I was wrong. I am not perfect; none of us is perfect. Each of us has failed, in one way or another, in greater or lesser measure, to live by the highest standards and ideals of our tradition — ethically, morally, halakhically. We must never be so committed to justifying our past that we thereby threaten to destroy our future. It is not an easy task. On the contrary, it is one of the greatest trials of all, for it means sacrificing our very egos, our reputations, even our identities. But we can and must do it. I must do it, and having done so, contribute to the creation of a future that is safer for innocents, and more ethically and halakhically correct.

Milwaukee Archdiocese Releases Files On 42 Abusive Priests

AP reports that the Catholic Archdiocese of Milwaukee (WI) yesterday released thousands of pages of records relating to 42 of the 45 diocesan priests with substantiated allegations against them of sexual abuse of a minor.  The release was part of an agreement reached in the Archdiocese's Chapter 11 bankruptcy reorganization proceedings where abuse victims are suing the Archdiocese.  A Questions & Answers sheet posted by the Archdiocese yesterday summarizes the 6,000 pages of documents. All the documents and related information are available from the Archdiocese's website. They are also available, catalogued a bit differently, on the website of the law firm representing the victims. One of the released documents that has attracted attention is the deposition of Timothy Cardinal Dolan, president of the U.S. Conference of Catholic Bishops. The New York Times reports that one of the other documents released yesterday is a 2007 letter from Dolan, then the archbishop, requesting Vatican permission to move $57 million into a cemetery trust fund to shield the assets from clergy abuse victims.

Missouri Governor Vetoes Bill Protecting Federal Holiday Observance

Apparently in response to what some perceive as an attack on the celebration of Christmas, in May the Missouri General Assembly passed HB 278 (full text) which provides:

No state or local governmental entity, public building, public park, public school, or public setting or place shall ban or otherwise restrict the practice, mention, celebration, or discussion of any federal holiday.

Yesterday Missouri governor Jay Nixon vetoed the bill (Veto Message)(News Release), along with SB 265 (Veto Message) that would have prohibited implementation of restrictions that stem from the sustainable development recommendations in United Nations "Agenda 21." Nixon said:

These issues may drive ratings on cable television, but they should not be the basis of public policy in Missouri. While the problems these bills ostensibly aim to fight are only imaginary, the headaches they could create for local governments would be very real and costly.

He said that HB 278 would hamper the enforcement of fireworks bans around the 4th of July and would allow state and local employees to demand time off for federal holidays, creating possible staff shortages for essential governmental functions. AP reports on the governor's action.

Factional Dispute In Ohio Mosque Can Only Be Decided In Quo Warranto Action By State

In Masjid Omar Ibn El Khattab Mosque v. Salim, (OH App., June 27, 2013), two competing groups each claimed to be the governing board of the Omar Mosque in Columbus, Ohio. The Mosque, at the instigation of the first board, filed suit in a state trial court seeking a temporary restraining order to require the second board to declare that it had no authority to control or direct the affairs of the Mosque. The members of the second board filed a counterclaim seeking a declaratory judgement that they are the legitimate board of the Mosque. The Court of Appeals upheld the determination that the trial court lacks jurisdiction in the case because the suit was asking it to determine an issue that can only be decided in a quo warranto action.  Under Ohio Revised Code, Chap. 2733, a quo warranto action can only be brought by the attorney general or a prosecuting attorney in the state Supreme Court or a Court of Appeals. The appeals court however held that the trial court's dismissal should have been without prejudice and that the trial court should have stayed the action so that it could be determined what to do with the Mosque's funds that were being held by the court during the litigation.

California State Court Judge Says Yoga Program In Schools Does Not Promote Religion

In California today a state trial court rejected a state constitutional challenge to the Encinitas Unified School District's teaching of Ashtanga yoga as part of the district's enrichment program. The district received a $533,000 from the Jois Foundation to fund the program. A suit by the National Center for Law and Policy contended that Ashtanga yoga is inherently religious because it is rooted in Hindu, Buddhist, Taoist, and Western Metaphysical religious beliefs.  The complaint alleged that teaching yoga in the public schools violates California constitutional bans on governmental religious preferences and use of state resources to promote or support religion. (See prior posting.) According to a 10News report on today's decision:

Judge John Meyer determined that a reasonable student would not associate yoga with religion because of the way the district set up its program. Meyer said he believed the district was not teaching any religious components during the classes and that he sees yoga as something similar to traditional PE sports such as kickball or volleyball. Meyers also found that the district's program follows state guidelines.

The National Center for Law and Policy issued a statement today saying that today's decision "is not the end of the road for this case or the last word regarding the fate of yoga in public education—this is only the beginning."

UPDATE: Here is the full text of the court's Minute Order in Sedlock v. Baird, (CA Super. Ct., July 1, 2013), thanks to Volokh Conspiracy.

Russia Sues Library of Congress For Return Of Loaned Books From Collection At Center of U.S. Litigation

As previously reported, in long-running litigation a U.S. federal district court has held the Russian government and three of its agencies in civil contempt for not complying with a 2010 default judgement ordering it to return two expropriated collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States. Now the Russian government has instituted its own lawsuit in a Russian court to force the U.S. Library of Congress to return seven books from one of the two collections that are on loan to it from Russia. Interfax reports today on a statement from Russia's ministry press service:

On July 1 the Ministry of Culture and the Russian State Library filed a motion at the Moscow Arbitration Court to bind the Library of the U.S. Congress to return seven books from the Schneerson library of the collection of the RSL center of Oriental literature received in 1994 for temporary use under the international library exchange system.

 Agudas Chasidei Chabad is also named as a party in the lawsuit.

Recent Articles and Books of Interest

From SSRN:

• Dwight G. Newman, On the Trinity Western University Controversy: An Argument for a Christian Law School in Canada, (Canadian Association of Law Teachers Annual Meeting in Victoria, British Columbia, June 4, 2013).
• John Copeland Nagle, What Hath Lynn White Wrought?, (2 Fare Forward 44 (2012)).
• Lida Sugin, The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures, (78 Brook. L. Rev. 777 (2013)).
• Douglas NeJaime, Before Marriage: The Unexplored History of Nonmarital Recognition and Its Impact on Marriage, (California Law Review, Vol. 102, 2014, Forthcoming).
• Pinkeshwar Gangwar, Discrimination Against Dalits, (June 20, 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)).

From SmartCILP:

• Giorgio Bernini, The Parties' Right to Choose Their Arbitrator and the Prohibition Against Discrimination: An Unstable Balance. A Comment on the Judgments in Jivraj v. Hashwan, [Abstract], 24 American Review of International Arbitration 27-62 (2013).
• Michael Blakeney, Protecting the Spiritual Beliefs of Indigenous Peoples--Australian Case Studies, 22 Pacific Rim Law & Policy Journal 391-427 (2013).
• The Legacy of the Arab Spring. Introduction by Ayodeji K. Perrin; symposium keynote lectures by Khaled Abou El Fadl and Lina Khatib; essays by Lama Abu Odeh, Ann Elizabeth Mayer, Amit K. Chhabra, Amos N. Guiora and Jordan J. Paust. 34 University of Pennsylvania Journal of International Law 305-446 (2013).

New Books:

• Marie A. Failinger, Elizabeth R. Schiltz & Susan J. Stabile (eds.), Feminism, Law, and Religion, (Ashgate Publishing, July 2013).
• James P. Byrd, Sacred Scripture, Sacred War: The Bible and the American Revolution, (Oxford University Press, June 2013).
• George Anastaplo, Reflections on Religion, the Divine, and the Constitution, (Lexington Books, August 2013).

Limits On Nude Sunbathing Are Not Violation of Naturist's Free Exercise Rights

In Wittbold v. Miami-Dade County, (SD FL, June 27, 2013), a Florida federal district court dismissed a lawsuit claiming that the county, by limiting nude sunbathing to one fenced area of the 177 acre Haulover Beach Park, violated plaintiff's 1st Amendment right to practice his religion of Naturism as well as his due process rights. According to the court, plaintiff's complaint "is a cacophony of irrelevant facts, biblical quotations and personal opinions that fail to state any cause of action."

Recent Prisoner Free Exercise Cases

[Note to readers: LEXIS Links in this and future postings are to Lexis Advance]

In Scott v. Shamsiddeen, 2013 U.S. Dist. LEXIS 86522 (ND NY, June 20, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 86474,  May 28, 2013) and dismissed an inmate's complaint that on two dates in 2011 he was deprived of Eid-ul-Adha religious meals. The problem resulted from authorities mistakenly believing plaintiff had been transferred.

In Jack-Bey v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 86645 (WD MI, June 20, 2013), while rejecting class action certification and damage claims, a Michigan federal district court permitted an inmate to proceed with his injunctive action claim that "Moorish Science Temple of America-1928 Grand Body" should be recognized by prison authorities (and its practices accommodated) as a separate religious group from "Moorish Science Temple of America, Inc. (1934 Portion)".

In Fabre v. Thompson, 2013 U.S. Dist. LEXIS 88116 (D OR, June 24, 2013), an Oregon federal district court dismissed a claim brought by plaintiff who was involuntarily committed for psychiatric treatment that his free exercise rights were violated when authorities invaded his soul and psyche, blocking the pathways to commune with God.

In Olmos v. Ryan, 2013 U.S. Dist. LEXIS 88118 (D AZ, June 24, 2013), an Arizona federal district court rejected a convicted child sex offender's claim that his probation conditions requiring that he obtain permission before going to places frequented by children under 18 violate his free exercise rights by preventing him from engaging in the close, frequent association with fellow believers.

In Lindsey v. Butler, 2013 U.S. Dist. LEXIS 88601 (SD NY, June 18, 2013), a New York federal district court permitted plaintiff, a Muslim, to file an amended complaint alleging that his free exercise and due process rights were infringed when he was forcibly shave while being detained at a police station following his arrest. Police shaved petitioner because others in the planned police line-up did not have beards.

In Calhoun-El v. Maynard, 2013 U.S. Dist. LEXIS 89945 (D MD, June 24, 2013), a Maryland federal district court dismissed an inmate's complaint that Muslim inmates do not receive ceremonial food packages equal to those given to inmates who keep a kosher diet.

In Turner v. Weikal, 2013 U.S. Dist. LEXIS 90463 (MD TN, June 27, 2013), a Tennessee federal magistrate judge recommended that a Muslim inmate be permitted to proceed with his 1st Amendment free exercise claims alleging that on 3 occasions he was not permitted to pray as required by his religious beliefs, he could not gather with other Muslims during Ramadan, he was not provided a correct religious diet, religious materials were removed from his room on two separate occasions, and he was retaliated against because of his Muslim faith. However his RLUIPA damage claims were dismissed.

Cert. Denied In Other DOMA Cases

Last Thursday, a day after issuing its same-sex marriage decisions, the U.S. Supreme Court cleaned up its docket by denying certiorari in several other cases challenging the constitutionality of DOMA.  The Court denied review in Windsor v. United States (Docket No. 12-63) and Bipartisan Legal Advisory Group v. Windsor, (Docket No. 12-785). It also denied review in Bipartisan Legal Advisory Group v. Gill (Docket No. 12-13), Department of Health & Human Services v. Massachusetts, (Docket No. 12-15), and Massachusetts v. Department of Health & Human Services, (Docket No. 12-97). (See prior related posting.) (June 27 Order List.)

Procedural Wrangling Tries To Delay Same-Sex Marriages In California

In its widely reported decision in Hollingsworth v. Perry last Wednesday, the U.S. Supreme Court held that petitioners lacked standing to challenge California's anti-gay marriage Proposition 8. SCOTUS remanded the case and ordered the 9th Circuit to dismiss the appeal from the district court. However it will be at least 25 days from the decision date until the Supreme Court formally certifies a copy of its judgment to the 9th Circuit.  Nevertheless, acting quickly, yesterday the 9th Circuit issued an Order (full text) dissolving the stay it had previously entered. That stay was the last impediment to same-sex marriage in California. Today, as same-sex marriages were being performed in the state, the proponents of Proposition 8 filed a motion (full text) with the U.S. Supreme Court asking it to vacate yesterday's 9th Circuit order on the ground that the 9th Circuit has no jurisdiction to act until the Supreme Court formally issues a certified copy of its judgment to it. Proponents argued that the premature termination of the stay deprives them of a meaningful opportunity to petition the Supreme Court for a rehearing. The Los Angeles Times and SCOTUS Blog report on this latest procedural wrangling.

UPDATE: AP reports that on June 30, Justice Anthony Kennedy denied the motion to vacate the 9th Circuit's order. Kennedy is the Justice assigned to receive motions regarding 9th Circuit cases.

Suit For Ministry Candidate's File Dismissed Under "Ecclesiastical Deference" Doctrine

In Mason v. Presbytery of San Francisco, (CA App., June 25, 2013), a California state appellate court dismissed under the "ecclesiastical deference" doctrine a lawsuit by a candidate for the Presbyterian ministry who sought access to her full candidacy file when, after ten years in the process, her candidacy was terminated. The court said that deciding whether there had been a contractual agreement to furnish the file to plaintiff at the end of her candidacy process, even if she did not receive a call to the ministry:

would require the courts to become embroiled in matters of church polity relating to the consideration of candidates for ministry and the handling of confidential or sensitive information received during the candidacy process. Thus, it is not possible for the courts to resolve the contract dispute alleged in the [complaint] without becoming entangled in matters of church polity.

The court also noted that in 2003:

the Permanent Judicial Commission of the General Assembly of the Presbyterian Church ,,, concluded, in a different matter, that respondent was not required to provide a candidate confidential documents relating to termination of the candidate.

Final Contraceptive Coverage Mandate Exemptions and Accommodations Issued For Religious Non-Profits

The Department of Health and Human Services announced today that it has adopted final rules on non-profit religious organizations and the contraception-coverage mandate under the Affordable Care Act. The rules (full text) deal both with the definition of those religious employers that are totally exempt from the requirement, and arrangements for coverage to be provided directly from health insurers in connection with other non-profit religious organizations that object to contraception coverage. According to the press release:

Today’s final rules finalize the proposed simpler definition of “religious employer” for purposes of the exemption from the contraceptive coverage requirement in response to concerns raised by some religious organizations.  These employers, primarily houses of worship, may exclude contraceptive coverage from their health plans for their employees and their dependents.

The final rules also lay out the accommodation for other non-profit religious organizations - such as non-profit religious hospitals and institutions of higher education - that object to contraceptive coverage.   Under the accommodation these organizations will not have to contract, arrange, pay for or refer contraceptive coverage to which they object on religious grounds, but such coverage is separately provided to women enrolled in their health plans at no cost.  The approach taken in the final rules is similar to, but simpler than, that taken in the proposed rules, and responds to comments made by many stakeholders.

With respect to an insured health plan, including a student health plan, the non-profit religious organization provides notice to its insurer that it objects to contraception coverage.  The insurer then notifies enrollees in the health plan that it is providing them separate no-cost payments for contraceptive services for as long as they remain enrolled in the health plan. 

Similarly, with respect to self-insured health plans, the non-profit religious organization provides notice to its third party administrator that objects to contraception coverage.  The third party administrator then notifies enrollees in the health plans that it is providing or arranging separate no-cost payments for contraceptive services for them for as long as they remain enrolled in the health plan.

According to a Fact Sheet on the new rules eliminate the requirements that a "religious employer" have the inculcation of religious values as its purpose; primarily employ persons who share its religious tenets; and primarily serve persons who share its religious tenets. For other non-profits, coverage directly from the insurer is available for any organization that:

on account of religious objections, opposes providing coverage for some or all of any contraceptive services otherwise required to be covered; is organized and operates as a nonprofit entity; holds itself out as a religious organization; and self-certifies that it meets these criteria in accordance with the provisions of the final regulations.

Pope Appoints Commission To Investigate Vatican Bank Amid Money Laundering Arrests

AKI reports today that the Vatican says it will cooperate fully with Italian authorities in their investigation of the Vatican Bank's (IOR) involvement in money laundering.  Today authorities arrested Monsignor Nunzio Scarano, a Vatican accountant on suspicion of fraud, corruption and slander. Scarano was suspended last month from the Vatican's Administration of the Patrimony of the Apostolic See which manages the Vatican's assets. Also arrested today were an Italian secret services agent and a financial broker who are suspected of involvement in an attempt to illegally move 20 million Euros to Italy. According to Deutsche Welle:

Earlier this week the AP ... reported that Scarano had withdrawn more than half a million euros in charitable donations without any flags being raised, walked out of Vatican City with the cash, and then used it to pay off a personal mortgage.

On Friday, dpa quoted Italian prosecutors as saying Bishop Scarano had paid Zito [the former intelligence officer] 400,000 euros ($520,000) to transport 20 million euros in cash from Switzerland to Italy onboard a private jet.

On Wednesday the Vatican announced that Pope Francis has set up a 5-member Pontifical Commission to investigate IOR's activities. It is charged with "gather[ing] accurate information on the Institute's legal position and various activities, in order to allow, if necessary, a better harmonization of the same with the universal mission of the Apostolic See."  (Chirograph establishing the Commission.) Among the Commission members is Harvard Law Professor Mary Ann Glendon, a former U.S. Ambassador to the Vatican.

UPDATE: The Director and Deputy Director of the Vatican Bank resigned on July 1. (National Catholic Reporter.)

Russian Upper House Sends Ban on Insulting Religion to Putin For Signature; USCIRF Criticizes Bill

As previously reported, earlier this month the Russian Duma (lower house of Parliament) passed amendments to the Russian Criminal Code to punish insulting the religious beliefs and feelings of citizens. Yesterday the law was approved by the Federation Council (the upper house of Parliament). (Legislative history in Russian).  The bill must still be signed by President Vladimir Putin in order for it to become law. Today the U.S. Commission on International Religious Freedom issued a press release strongly critical of the new law, saying in part:

The bill now awaits only a presidential signature before becoming law, most likely on July 1. The bill would punish alleged offenses against religious sentiments by up to three years in prison. 

 “With space for free expression shrinking rapidly in Russia, enactment of this bill would further erode human rights protections in Russia,” said U.S. Commission on International Religious Freedom (USCIRF) Chair Dr. Katrina Lantos Swett.  “Speech limitations violate Russia’s international commitments, and this law will lead to abuse and arbitrary rulings against permissible speech that some deem ‘offensive..... [I]f enacted, this new law gives credence to the view Russian human rights activists expressed to me that Russia is in full retreat from democracy and the rule of law.” 

UPDATE: Radio Free Europe reported on June 30 the President Putin signed the bill into law, along with a second controversial bill that prohibits disseminating to minors any propaganda involving "nontraditional sexual relations."

Former Guantanamo Detainee's Suit Alleging Free Exercise Violations Dismissed For Lack of Jurisdiction

In Ameur v. Gates, (ED VA, June 29, 2013), plaintiff, an Algerian citizen arrested in Pakistan and subsequently transferred to Guantanamo Bay for five years, sued various former government officials for damages alleging that his treatment violated customary international law, the Geneva Convention, the 5th Amendment, the 1st Amendment's free speech and free exercise protections, and the Religious Freedom Restoration Act. The court dismissed his claims finding that the Military Commission Act divests the court of jurisdiction. Lawfare blog has more on the decision.

Former School Employees State Claims For Anti-Mormon Bias

In Hunt v. Central Consolidated School District, (D NM, June 12, 2013), a New Mexico federal district court in a long opinion held that a former Transportation Director and former Custodial Supervisor could proceed with claims that their reassignments as part of a school district administrative restructuring were motivated by anti-Mormon bias. The court held that plaintiffs had stated plausible claims of discrimination, conspiracy and breach of contract. The suit alleged that the school board president and his campaign manager were involved in anti-Mormon comments that were posted on a local newspaper's blog.

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.