Suit Challenges 10 Commandments On Oklahoma Capitol Grounds

The ACLU of Oklahoma yesterday filed a state court lawsuit on behalf of several plaintiffs challenging the constitutionality under the state constitution of a Ten Commandments monument that was erected on the State Capitol grounds in 2012. (See prior related posting.) The complaint (full text) in Prescott v. Oklahoma Capitol Preservation Commission, (OK Dist. Ct., filed 8/19/2013) contends that the monument, paid for personally by a member of the Oklahoma House of Representatives and his family, constitutes an illegal "appropriation of public property" in support of religion, in violation of Art. 2, Sec. 5 of the Oklahoma Constitution. The complaint contains an extensive analysis of the religious implications of the text and design of the monument-- which are similar to those of monuments placed around the country by the Fraternal Order of Eagles.  In its press release announcing the filing of the lawsuit, the ACLU said in part:

The lawsuit also seeks to remedy the state monument’s impact on Jewish and Christian believers. The government has taken a text that, in various forms, is deeply sacred in both of these faiths and have trivialized its religious meaning by placing it in a political and secular context, with its proponents arguing that the monument is a constitutionally permissible recitation of a purely non-religious history of our legal system and government.

No 1st Amendment Bar To Suit Against Diocese Over Priest Sex Abuse

In Givens v. St. Adalbert Church, 2013 Conn. Super. LEXIS 1704 (CT Super. Ct., July 25, 2013), a Connecticut trial court rejected the contention of a Catholic diocese that the 1st Amendment and the ministerial exception doctrine preclude civil courts from deciding claims against religious institutions growing out of sexual abuse by a member of the clergy. The court, however, did dismiss two paragraphs of the complaint which would have required it to decide disputed issues of religious doctrine and practice.

Religions of U.S. House Members Mapped

BuzzFeed yesterday posted an interesting set of maps that illustrate by district the religious affiliation of all 435 members of the U.S. House of Representatives. The posting adds:

There are 31 religions represented in the House, including 26 different sects of Christianity. Catholics make up the largest group with 136 members, followed by Baptists with 66 members, Methodists with 45 members, Anglicans/Episcopalians with 35 members, Presbyterians with 28 members, and Jews with 22 members. There is only one atheist.

Apaches Want Museum To Acknowledge That Objects Are Sacred and Part of Their Cultural Patrimony

The New York Times yesterday reported on a dispute over 77 Native American items in the collection of the American Museum of Natural History.  The objects, include headwear, feathers, bows and arrows, medicine rings and satchels containing crystals and charms. The Museum agreed four years ago to return the objects to the Apache tribe, but the Apaches insist that the Museum first designate the items as "sacred" and "items of cultural patrimony"-- terms defined in the Native American Graves Protection and Repatriation Act. The Museum is only willing to refer to the objects as "cultural items." The Times quotes David Tarler, an expert on repatriation, who explains:

some Indian tribes feel the use of the term “cultural patrimony” in the documentation amounts to an acknowledgment that the objects should never have been removed from tribal hands without consent.... [S]uch an admission is “an important matter of healing” for those tribes. “They want affirmation that they have always owned the objects tribally”....

Catholic Non-Profit Sues Challenging Contraceptive Mandate Compromise

Now that the Department of Health and Human Services has issued final rules providing a compromise for religiously sponsored non-profits such as hospitals and colleges that object to the Affordable Care Act's contraceptive coverage mandate, suits challenging those rules are beginning to be filed by non-profits whose earlier challenges were dismissed on ripeness grounds.  Yesterday the American Freedom Law Center announced the filing of this type of action on behalf of Priests for Life, whose earlier suit had been dismissed on ripeness grounds last April. The new complaint (full text) in Priests for Life v. U.S. Department of Health and Human Services, (D DC, filed 8/19/2013) alleges:

... Priests for Life, a Catholic organization, is morally prohibited based on its sincerely held religious convictions from cooperating with evil. Priests for Life objects to being forced by the government to purchase a health care plan that provides its employees with access to contraceptives, sterilization, and abortifacients, all of which are prohibited by its religious convictions. This is true whether the immoral services are paid for directly, indirectly, or even not at all by Priests for Life. Contraception, sterilization, and abortifacients are immoral regardless of their cost. And Priests for Life objects to the government forcing it into a moral dilemma with regard to its relationship with its employees and its very survival as an effective, pro-life organization. 

NJ Governor Signs Bill Banning Conversion Therapy; Says He Disagrees With Church's View of Homosexuality As Sinful

New Jersey Governor Chris Christie today signed A 3371, a bill that bans licensed mental health, social work and counseling professionals from engaging in in sexual orientation change efforts with a person under 18 years of age. In his signing statement (full text), Christie said that while he is concerned about limiting parental choice, exposing children to the mental health risks of conversion therapy without clear evidence of benefits that outweigh the serious risks is not appropriate. A press release from the governor's office announcing the signing included an exchange between Christie and CNN's Pierce Morgan:

Piers Morgan: Is homosexuality a sin?

Governor Christie: Well my religion says it’s a sin. I mean I think, but for me, I’ve always believed that people are born with the predisposition to be homosexual. And so I think if someone is born that way it’s very difficult to say then that’s a sin. But I understand that my Church says that, but for me personally I don’t look at someone who is homosexual as a sinner.

USA Today reports on the bill signing.

Mediation In Litigation Over Sale Of Historic Torah Ornaments Breaks Down

AP reported last week that mediation has failed in the lawsuits between Newport, Rhode Island's historic Touro Synagogue and New York City's Congregation Shearith Israel that claims that it owns Touro. (See prior posting.) The dispute began with a decision in 2010 by Touro Synagogue to sell its valuable colonial Torah ornaments (now on loan to the Boston Mueum of Fine Arts) in order to endow future maintenance and clergy salaries. Shearith Israel opposes the sale. Touro Synagogue is celebrating its 250th anniversary this year.

Recent Articles of Interest

From SSRN:

• Helen M. Alvare, Constitutional Abortion and Culture, (Christian Bioethics, Vol. 19, No. 2, pp. 133-149, August 2013).
• Haider Ala Hamoudi, The Impossible, Highly Desired Islamic Bank, (William & Mary Business Law Review, Vol. 5, 2013).
• Neil James Foster, Anti-Vilification Laws and Freedom of Religion in Australia - Is Defamation Enough?, (June 08, 2013).
• Timothy J. Geverd, Establishment, Incorporation, and Endorsement: Everson's Muddled Legacy of Incorporation and Legislating Out of the Passive Display Quandary, (August 15, 2013).
• Brian K. Mosley, Zoning Religion Out of the Public Square: Constitutional Avoidance and Conflicting Interpretations of RLUIPA's Equal Terms Provision, (Arizona Law Review, Vol. 55, pp. 465-97 (2013)).
• Yuksel Sezgin & Mirjam Künkler, Regulation of 'Religion' and the 'Religious': The Politics of Judicialization and Bureaucratization in India and Indonesia, (August 9, 2013).

From SmartCILP:

• Leslie C. Griffin, The Sins of Hosanna-Tabor, 88 Indiana Law Journal 981-1019 (2013).
• Robert Jon Araujo, A Trinity of Viewpoints On the Moral Perspective In the Public Square: Murray, Kennedy, and Cuomo, [Abstract], 27 Notre Dame Journal of Law, Ethics & Public Policy 333-376 (2013).
• John Schoenig, Parental Choice, Catholic Schools, and Educational Pluralism At the Dawn of a New Era in K-12 Education Reform, [Abstract], 27 Notre Dame Journal of Law, Ethics & Public Policy 513-539 (2013). 

Pakistani Cleric Charged With Planting Blasphemy Evidence Acquitted For Lack of Witnesses

In a widely-followed case in Pakistan last year, a court dismissed blasphemy charges that had been brought against a Christian girl, Rimsha Masih, after it appeared that a local mullah had planted charred pages from a Qur'an in the other papers that Masih was carrying in order to strengthen the case against her. (See prior posting.) Subsequently police arrested the mullah, Khalid Jadoon, and charged him with blasphemy for tearing out the pages he planted.  However, Pakistan Today reports that on Saturday, Jadoon was acquitted for lack of evidence. All the witnesses in the proceedings retracted their prior statements against Jadoon.

Recent Prisoner Free Exercise Cases

In Kaufman v. Pugh, (7th Cir., Aug. 16, 2013), the 7th Circuit held that an inmate's atheist study group request should be treated on an equal footing with requests by religious groups. Before denying the request for lack of interest, there must be a way for inmates to designate atheism as their alternative religious viewpoint. Denial of a new religious emblem and of used books sent to plaintiff was upheld.

In Jackson v. Phoenix, 2013 U.S. Dist. LEXIS 112974 (SD IL, Aug. 12, 2013), an Illinois federal district court permitted an inmate to proceed with his free exercise and RLUIPA claim that he was denied a halal diet.

In Clay v. Parker, 2013 U.S. Dist. LEXIS 113028 (WD TN, Aug. 12, 2013), a Tennessee federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 113410, July 23, 2013) and dismissed an inmate's free exercise and RLUIPA suit on statute of limitations grounds, holding that his administrative remedies were exhausted when plaintiff completed the internal prison system's complaint system, and not at the later date that he completed the Tennessee Human Rights Commission process.

In Rose v. Muhammed, 2013 U.S. Dist. LEXIS 113197 (SD NY, Aug. 7, 2013), a New York federal district court adopted a magistrate's recommendation (Rose v. Masiey, 2013 U.S. Dist. LEXIS 113741, July 16, 2013), and dismissed for failure to exhaust administrative remedies an inmate's complaints that the handling of food at Rikers Island facility led to meals that failed to comply with Halal requirements.

In Garnica v. Washington Department of Corrections, 2013 U.S. Dist. LEXIS 114322 (WD WA, Aug. 13, 2013), a  Washington federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 114328, June 19, 2013) and dismissed a Muslim inmate's complaint regarding the adequacy of Ramadan meals and timing of the Eid ul-Fitr feast.

In Nellum v. Stiltner, 2013 U.S. Dist. LEXIS 114476 (ED CA, Aug. 12, 2013), a California federal magistrate judge recommended dismissing an inmate's free exercise complaint that his Bible was missing following a cell search.

In Coleman v. Jabe, 2013 U.S. Dist. LEXIS 114551 (WD VA, Au. 13, 2013), a Virginia federal district court dismissed a Salafi Muslim inmate's challenge to policies that establish an official compact-disc vendor; establish an official prayer-oil vendor; omit halal meat from VDOC's "Common Fare" diet; and result in grouping Salafi Muslims with Sunni Muslims for group worship.

In Nzaddi v. Dinardo, 2013 U.S. Dist. LEXIS 115508 (D MA, Aug. 14, 2013), a Massachusetts federal district court dismissed a transgender Bah'ai inmate's claims relating to wearing women's "religious headwear" for modesty, the practice of several holistic rituals, and "a religious-dietary syntax" involving unpeeled, unprocessed, uncooked and chemical-free food.

In Avery v. Elia, 2013 U.S. Dist. LEXIS 115775 (ED CA, Au. 14, 2013), a California federal magistrate judge allowed a Wiccan inmate to move ahead with his complaint that he was denied use of a fire pit and his religious altar was confiscated.

In Gray v. Stolle, 2013 U.S. Dist. LEXIS 116478 (ED VA, Aug. 16, 2013), a Virginia federal district court, while dismissing an inmate's other claims, allowed the inmate (who was studying Judaism) to move ahead with his complaint that his request for a kosher diet was denied.

In Depaola v. Ray, 2013 U.S. Dist. LEXIS 116553 (WD VA, Aug. 16, 2013), a Virginia federal district court adopted, with modifications, a magistrate's recommendations and rejected a Muslim inmate's complaint that female guards might have witnessed him being strip searched. It dismissed on qualified immunity grounds plaintiff's damage claims complaining about Jumu'ah services on muted DVD, and his inability to perform wudu and pray while on a transport to a court hearing. The court remanded to the magistrate for further consideration the issue of whether plaintiff is entitled to an injunction requiring close-captioning of the DVD Jumu'ah services. UPDATE: The magistrate's opinion is at 2013 U.S. Dist. LEXIS 117182, July 22, 2013.

Religious Group Leader's Conviction For Sexual Contact With Minor Upheld

In State of New Mexico v. Bent, (NM App., Aug. 15, 2013), the New Mexico Court of Appeals upheld the convictions of the leader of a New Mexico religious community for criminal sexual contact with a minor and contributing to the delinquency of a minor. According to the court:

Defendant was the leader of a religious group, and his convictions were based on unclothed experiences with two teenage girls who were members of the community, which he claimed were purely spiritual healings....

Among the numerous arguments that the court rejected in affirming Wayne Bent's conviction was an assertion by defendant that his counsel was ineffective by failing to raise a defense under New Mexico’s Religious Freedom Restoration Act.

UPDATE: The court issued a substituted opinion on Aug. 26.

Plaintiff's Objection To Name Badge States Valid Title VII Religious Discrimination Claim

In Ambrose v. Gabay ENT & Associates, P.C., (ED PA, Aug. 15, 2013), a Pennsylvania federal district court allowed a former medical receptionist to proceed with her Title VII religious discrimination and retaliation claims against her former employers who insisted that she wear a name badge that contained a list of workplace rules under the heading "Our Ten Commandments." Plaintiff found it sacrilegious to wear the badge because it contravened the Ten Commandments she follows as a tenet of her Roman Catholic faith. She was willing to post them elsewhere, but not wear them in a way that identified her personally with the statements.

Letter To Doctor Opposing Abortion Clinic Was Not True Threat Under FACE

In United States v. Dillard, (D KS, Aug. 15, 2013), a Kansas federal district court dismissed a civil action brought by the United States against pro-life advocate Angela Dillard under the federal Freedom of Access to Clinic Entrances Act. As related by the opinion:

On January 19, 2011, Angel Dillard wrote a letter to Dr. Mila Means, who had publicly announced plans to open an abortion services clinic in Wichita, Kansas. Most of the letter centers on arguments from Scripture, appeals to conscience, and the practical disadvantages and difficulties associated with such a clinic. But in the body of the letter, Dillard also wrote that “You will be checking under your car everyday—because maybe today is the day someone places an explosive under it.”

The court concluded that the letter did not constitute a true threat.

Qui Tam Action Claims Hawaii Churches Cheated Schools Out of Millions of Dollars of Rent

In Hawaii, a qui tam whistle blower lawsuit against 5 churches, originally filed under seal in March, was unsealed Aug. 14. The complaint (full text with press release) in State of Hawaii ex rel. Kahle and Huber v. New Hope International Ministries, (HI Cir. Ct., filed 3/22/2013), contends that the churches submitted false records and statements to deprive Hawaii schools of $5.6 million in unpaid or underpaid rent and utility charges for weekend use of school buildings, parking lots and facilities over the past 6 years. The churches routinely under reported the length of time they were using facilities and the extent of use.  The suit asks for treble damages and civil penalties on behalf of the state. Under HRS 661.27, plaintiffs if successful in the action, are entitled to 15% to 25% of proceeds of the lawsuit.  In their press release, the two individuals who filed the lawsuit contend that:

there is long‐standing and widespread abuse in the DOE’s “Community Use of School Facilities Program.” The abuse has cost taxpayers millions of dollars in lost revenue, and million‐dollar losses are continuing every year because of unpaid rental fees and utilities charges by literally hundreds of churches operating out of nearly as many public schools.  Relators have called for the entire program to be audited, reformed and for all monies owing to be collected.

As part of their investigation, Relators produced a 2,242‐page report ...[which] contains substantial material evidence of widespread abuse and outright fraud perpetrated by churches, often with the explicit approval or knowledge of school principals and/or their designees. There are literally hundreds of churches operating out of Hawaii’s public schools every weekend, some of whom who have been holding worship services and other church activities at the same schools for 5, 10, 15, even 20 years and longer, without ever attempting to find an alternate location.

Honolulu Civil Beat and Friendly Atheist blog report on the lawsuit. [Thanks to Scott Mange for the lead.]

Contraceptive Coverage Preliminary Injunction Followed Up by Stay of Proceedings

In Tonn & Blank Construction, LLC v. Sebelius, 2013 U.S. Dist. LEXIS 116173 (ND IN, Aug. 16, 2013), an Indiana federal district court that had previously issued a preliminary injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate against plaintiff construction company until the 7th Circuit decides two cases before it raising the same religious liberty issues, followed up by staying proceedings in plaintiff's case for the same period of time.

Malaysia Strips Foreign Resort Owner Of Residency For Allowing Muslim Prayer Room Use by Buddhists

Malay Mail reports today that in Malaysia, the Home Ministry has summarily stripped a resort owner from Singapore of his permanent residence status in Malaysia for allowing the Muslim prayer room at his resort to be used for meditation by a group of Buddhist tourists. The resort owner was held for four days by police while the incident was being investigated. Civil liberties advocates criticized the move, saying that resort owner should at least have been given a hearing before the action against him was taken.

Company's Disability Insurance Is Not An Exempt "Church Plan"

In Story v. Aetna Life Insurance Co., (ND TX, Aug. 8, 2013), a Texas federal district court held that the disability insurance policy covering employees of Texas Health Resources is not a "church plan" that is exempt from ERISA. The court concluded that the most that had been shown was that Texas Health Resources  is a faith-based healthcare organization that takes religious principles into account in providing the health services it renders. It was not shown that its insurance plan was "established and maintained . . .. by a church or by a convention or association of churches" for its employees.

Egyptian Christian Churches and Property Are Attacked

Al Jazeera today carries a feature article titled Egypt's Christians Face Unprecedented Attacks.  It reports that amid Wednesday's violence between the military and Muslim Brotherhood supporters, alleged Morsi supporters attacked dozens of Coptic Christian churches and Christian-owned properties. It added:

Mina Thabet, an activist with Christian rights group the Maspero Youth Union, told Al Jazeera on Friday that at least 32 churches had been “completely destroyed, burned or looted” in eight different governorates over the previous two days. The group also recorded dozens of other attacks on Christian-owned shops, businesses and schools around the country.

UPDATE: The U.S. Commission on International Religious Freedom issued a press release on Aug. 16 condemning  the violence against protestors and the targeting of churches in Egypt.

Japan, South Korea Distressed At War Shrine Visits By Top Japanese Politicians

Japanese politicians angered China and South Korea yesterday when they marked the 68th anniversary of Japan's World War II surrender by visiting the Yasukuni shrine. China summoned Japan's ambassador to lodge a complaint about the visits.  Britain's Morning Star reports that Japanese Prime Minister Shinzo Abe did not visit the shrine personally, but sent an offering through an aide.  Two cabinet ministers paid respects in person wearing morning suits. The Shinto shrine honors Japanese war dead, including 14 top convicted war criminals.  AFP reports that throughout the day yesterday, nearly 100 Japanese lawmakers-- including 3 cabinet ministers-- visited the controversial shrine. (See prior related posting.)

Permanent Injunction Issued Barring Oklahoma's 2010 Anti-Sharia Constitutional Amendment

In Awad v. Ziriaz, (WD OK, Aug. 15, 2013), an Oklahoma federal district court issued a permanent injunction barring Oklahoma election officials from certifying an anti-Sharia state constitutional amendment approved by 70% of Oklahoma voters in 2010. The court, following the 10th Circuit's approval in 2012 of a preliminary injunction in the case, said: "Because defendants have failed to satisfy strict scrutiny, the Court finds that the proposed amendment’s references to Sharia law violate the Establishment Clause." AP reports on the decision.

Report Urges Allowing Sermons to Endorse Political Candidates

In January 2011, the U.S. Senate Finance Committee's ranking member, Sen. Chuck Grassley, released a staff review of the activities of media-based ministries, focusing on the financial accountability of tax-exempt religious organizations. The Staff Memo also recommended that the IRS sponsor an Advisory Committee made up of representatives of churches and other organizations.  In response, the Evangelical Council for Financial Responsibility set up a Commission on Accountability and Policy for Religious Organizations.  (See prior posting.) The Commission issued an initial report in December 2012. (See prior posting.) In a press release issued Wednesday, the Commission announced the release of its final report. The report, Government Regulation of Political Speech by Religious and Other 501(c)(3) Organizations concludes that the status quo is untenable and makes a number of recommendations for change.  Among the recommendations is the following:

The Commission believes that a communication related to one or more political candidates or campaigns that is made in the ordinary course of a 501(c)(3) organization’s regular and customary religious, charitable, educational, scientific, or other exempt purpose activities should not constitute a prohibited activity under Section 501(c)(3), so long as the organization does not incur more than de minimis incremental costs with respect to the communication.... The exception should expressly include sermons and other communications delivered as part of a religious organization’s regular and customary worship services, provided that no more than de minimis incremental costs are incurred for communications directly related to one or more political candidates or campaigns.

USA Today has additional coverage.  [Thanks to Steven H. Sholk for the lead.]

UPDATE: In an Aug. 15 statement, Independent Sector took issue with the Commission's recommendations, saying: "Allowing the endorsement of political candidates, as this report calls for, is tantamount to allowing political agents to use the public’s goodwill towards the charitable sector as a vehicle to advance, through financial contributions, their own partisan political will."

Federal Court Says Alien Tort Claim For LGBTI Persecution In Uganda Can Proceed

In Sexual Minorities Uganda v. Lively,  (D MA, Aug. 14, 2013), a Massachusetts federal district court, in a 79-page opinion, refused to dismiss a suit under the federal Alien Tort Statute (as well as state civil conspiracy and negligence claims) brought by a Ugandan LGBTI advocacy group against an American evangelical anti-gay activist who allegedly "has attempted to foment, and to a substantial degree has succeeding in fomenting, an atmosphere of harsh and frightening repression against LGBTI people in Uganda." The suit against Scott Lively, president of the Abiding Truth Ministries, seeks damages as well as declaratory and injunctive relief. In permitting plaintiff to proceed with the lawsuit, the court said in part:

[M]any authorities implicitly support the principle that widespread, systematic persecution of individuals based on their sexual orientation and gender identity constitutes a crime against humanity that violates international norms.....  [A]iding and abetting a crime against humanity is a well established offense under customary international law, and actions for redress of this crime have frequently been recognized by American courts as part of the subclass of lawsuits for which the ATS furnishes jurisdiction.... 

Second, the restrictions ... on extraterritorial application of the ATS do not apply to the facts as alleged in this case, where Defendant is a citizen of the United States and where his offensive conduct is alleged to have occurred, in substantial part, within this country. Indeed, Defendant ... is alleged to have maintained what amounts to a kind of “Homophobia Central” in Springfield, Massachusetts....

Third, clear authority supports Plaintiff’s standing here. Fourth, the argument that Defendant’s actions have constituted mere expression protected under the First Amendment is, again, premature..... [S]ufficient facts are alleged... to support the claim that Defendant’s behavior crossed well over any protective boundary established by the First Amendment. Fifth, and finally, the arguments attacking the claims under Massachusetts state law have not been convincingly developed.

Center for Constitutional Rights and The Rainbow Times report on the decision.

Abuse Victims Say Judge Had Conflict of Interest In Milwaukee Archdiocese Trust Fund Ruling

As previously reported, last month Wisconsin federal district court judge Rudolph T. Randa held that a $55 million cemetery perpetual care trust fund is unavailable to creditors, including abuse victims, in the bankruptcy reorganization of the Milwaukee Catholic Archdiocese.  On Monday, the Unsecured Creditors' Committee (representing abuse victims) filed a Motion to Vacate the Judgment and a Memorandum in Support of the Motion, as well as a Motion to require Judge Randa to recuse himself and a Memorandum in Support of the Motion. Petitioners argue:

at least nine of Judge Randa’s relatives (including his mother, his father and his wife’s parents) are buried in cemeteries owned and operated by the Debtor, the very cemeteries that are to be maintained with the funds moved from the Debtor’s accounts to the Cemetery Trust before filing for bankruptcy.... [In addition] he is a party to a contract wherein the Cemetery Trust is the exclusive provider of care and maintenance for [his parents'] burial crypts, with an interest in how the funds are used.

Yesterday's Milwaukee Journal-Sentinel reporting on the motions, says that Judge Randa's ruling removed the last major asset available for a settlement with abuse victims.

L.A. Will Pay $950,000 In Attorney's Fees In RLUIPA Lawuit

The Los Angeles Times reports that Los Angeles City Council yesterday voted unanimously to pay $950,000 in attorneys' fees and costs to finally conclude a long-running RLUIPA lawsuit that was filed against it in 2010 by an Orthodox Jewish congregation seeking to use a residential property as a synagogue.  In May in Congregation Etz Chaim v. City of Los Angeles, (CD CA, May 15, 2013), a California federal district court held that the city's denial of a conditional use permit and a variance to the congregation violated RLUIPA. (See prior related posting).

New Contraceptive Coverage Challenge-- Individual Employee Seeks Religious Exemption

In the wake of dozens of lawsuits by for-profit businesses challenging the Affordable Care Act contraceptive coverage mandate on religious liberty grounds, yesterday the other shoe dropped as an individual-- who happens to also be a state legislator-- sued to obtain a court order allowing him to opt out of contraceptive coverage provided in his employer's plan. The complaint (full text) in Wieland v. U.S. Department of Health and Human Services, (ED MO, filed 8/14/2013), alleges that previously legislator Paul Wieland and his wife were able to choose a state health plan that did not cover contraceptives, abortifacients or sterilization, but that because of the mandate his insurer notified him that effective August 1 he would be placed in a plan that covers contraception and sterilization.  The complaint contends that plaintiffs, because of their Christian religious beliefs, do not want to furnish this coverage for their three daughters, age 12, 18 and 19. It contends that their premiums went up to pay for contraceptive and sterilization coverage, and that their premiums also partially fund medical services to other employees covered under the same plan.

In the complaint, plaintiffs cite Mo. Rev. Stat. § 191.724, enacted last year, that provides: "No employee... shall be compelled to obtain coverage for, or be discriminated against or penalized for declining or refusing coverage for, abortion, contraception, or sterilization in a health plan if such items or procedures are contrary to the religious beliefs or moral convictions of such employee or person."  A related provision of Missouri law was declared invalid by a federal court last year. (See prior posting.) The complaint filed yesterday contends that the mandate violates plaintiffs' rights under RFRA, the 1st and 5th Amendments and the Administrative Procedure Act. Thomas More Society announced the filing of the lawsuit. The St. Louis Post Dispatch reports on the suit.

California Supreme Court Rejects Last Ditch Effort To Enforce Proposition 8

As reported by the Los Angeles Times, the California Supreme Court yesterday denied the petition for a writ of mandate that was filed last month seeking to require county clerks in the state to enforce Proposition 8's ban on same-sex marriages, despite the U.S. Supreme Court's decision in June in Hollingsworth v. Perry.  The state supreme court's Aug. 14 order (full text) in Hollingsworth v. O'Connell did not give reasons for the denial of the writ of mandate. Petitioners had argued (see prior posting) that the injunction in Hollingsworth v. Perry (see prior posting) should be read narrowly to cover only the specific plaintiffs or specific counties involved in the case.

Split 3rd Circuit Denies En Banc Rehearing In Contraceptive Coverage Case

By a vote of 7-5 yesterday the U.S. 3rd Circuit Court of Appeals denied an en banc rehearing in Conestoga Wood Specialties Corp. v. Secretary of U.S. Department of Health and Human Services. In the case, a 3-judge panel in a 2-1 decision last month denied a preliminary injunction sought by a family-owned business to stop enforcement of the Affordable Care Act contraceptive coverage mandate. (See prior posting.) Alliance Defending Freedom announced that it would now petition the U.S. Supreme Court to review the decision.

Cameroon Closing A Number of Unregistered Christian Churches

Voice of America and the Cameroon Tribune report that in the west African nation of Cameroon the government has begun closing down a number of illegal Christian churches which it says are engaging in activities that are a threat to public order. The churches say that they have been targeted because their pastors have criticized the government of President Paul Biya. However, the government contends that the churches have engaged in a variety of improper activities from disturbing neighborhoods by use of loud speakers and instruments, to dividing families. Cameroon law requires government approval and registration of religious groups that wish to operate in the country. (Background.) The government says that the churches being closed have not registered and do not intend to do so.

Buckingham Palace Lists Young Albert and Leopold In Line of Succession Even Though They Are Catholic

Great Britain's 1701 Act of Settlement prohibits Catholics from succeeding to the throne. However, as reported Monday by The Express, on the Official Website of the British Monarchy five-year old Albert and three-year old Leopold are listed as 39th and 40th in line for the throne even though they are Catholics.  The boys' father, Lord Nicholas Windsor (great-grandson of George V), converted to Catholicism in 2001. His Croatian wife Paola is also a Catholic, and the two boys were baptized as Catholics. Buckingham Palace has not commented on the boys' inclusion in the Line of Succession, but some have suggested that they would not be disqualified until they are old enough to make up their own minds about religion, perhaps at the time of their confirmation.

Good News Clubs Sues School District Over Discriminatory Fees

Yesterday Child Evangelism Fellowship filed a federal lawsuit against the Cleveland, Ohio school district alleging that an elementary school applied the school district's fee policy in a manner that discriminated against CEF's Christian-based Good News Clubs. The complaint (full text) in Child Evangelism Fellowship of Ohio, Inc. v. Cleveland Metropolitan School District, (ND OH, filed 8/13/2013) alleges that the school district violated CEF's 1st and 14th Amendment rights by imposing a facilities use fee on it for use of school space for after-school meetings, but waiving the fee for the Boy Scouts. Liberty Counsel announced the filing of the lawsuit.

2014 National Religious Freedom Moot Court Competition Announced

George Washington University Law School has announced the details of its 2014 Religious Freedom Moot Court Competition for law school students. This year's Problem involves a challenge to a federal program that provides financial assistance for rebuilding after natural disasters.  At issue is the hypothetical program's coverage of houses of worship along with other community facilities. The Competition will be held Feb. 7-8, 2014 in Washington, D.C.

Illinois Diocese Settles Sex Abuse Lawsuit

According to today's Bergen County (NJ) Record, the Catholic Diocese of Peoria, Illinois has agreed to pay $1.35 million in a settlement of a lawsuit alleging that John J. Meyers-- its former bishop and now Archbishop of Newark-- failed to adequately investigate a 1995 report of sexual abuse by a priest. Plaintiff in the lawsuit and at least three other boys were abused by the priest, Monsignor Thomas W. Maloney, after the 1995 complaint against him.

Another Contraceptive Coverage Mandate Challenge; DOJ Wants Gilardi To Be Test Case In DC Circuit

Last week, yet another lawsuit was filed by a for-profit corporation and its owners challenging the Affordable Care Act's contraceptive coverage mandate.  The complaint (full text) in Trijicon, Inc. v. Sebelius, (D DC, filed Aug. 7, 2013), alleges:

The Mandate illegally and unconstitutionally requires Trijicon to violate its and its owners’ religious beliefs by forcing the company to provide abortion-inducing items, such as “Plan B” (the so-called “morning after pill”), Ella (the so-called “week after pill”), and intauterine devices (“IUDs”).

Trijicon is a leading manufacturer of sights and rifle scopes sold to hunters and to the military.  According to an Aug. 9 press release from Alliance Defending Freedom, the Justice Department has now notified the court that (as explained in plaintiffs'  motion for preliminary injunction) it will not oppose the granting of a preliminary injunction, so long as Plaintiffs agree to stay proceedings pending the D.C. Circuit Court of Appeals final disposition of a similar challenge to the ACA in Gilardi v. Sebellius. The government's action is consistent with steps it has taken in other cases to use Gilardi as the vehicle for the DC Circuit to pass on business challenges to the mandate.

An interesting side note-- in 2010 Trijicon became the center of news coverage when it agreed to stop including coded references to Bible verses as part of the serial number on rifle sights supplied to the military. (See prior posting.)

Court Temporarily Permits Continuation of Challenged Lease To Jewish School

An Albany County, New York trial court judge last week stayed until at least Oct. 18 a decision by the State Education Commissioner that would have invalidated a lease of a school building by the East Ramapo Central School District to an ultra-Orthodox Jewish girls' school operated by Congregation Avir Yakov of New Square, NY.  According to Sunday's Lower Hudson Journal News, originally the school building was sold to Avir Yakov for $3.1 million, but that sale was cancelled by the State Education Commissioner after the Attorney General's office charged that Avir Yakov had paid off an appraiser to submit an artificially low appraisal of the building. Since then, East Ramapo has rented the building to Avir Yakov for $19.000 a month plus $2000 per month for the right of first refusal to buy the building. The Education Commissioner, responding to the complaint of the Save Our Schools Coalition, decided that this was an inadequate rental amount.  East Ramapo argued for the stay pending appeal of the Commissioner's decision because  the school district would have had to cut school services to reflect its loss of the $252,000 of income it anticipated this year from the lease.  A cancellation would also have left the Jewish school without a building just as the school year begins.

Israel's National Tennis Team Gets Monetary Penalty For Rescheduling of Yom Kippur Match

JTA reports today that Israel's national tennis team has been ordered by the International Tennis Federation to pay the Belgian Tennis Association over $13,000 for the inconvenience of rescheduling a Davis Cup match that was originally to take place on Yom Kippur.  Initially the Belgian team refused to reschedule the Sept. 14 match in Antwerp. The International Tennis Federation stepped in and changed the date to Sept. 15, but with the monetary penalty. The Israel Tennis Association is a non-profit organization.

Tennessee Magistrate Objects To Child Being Named "Messiah"

AP and WBIR report on the decision of a Newport, Tennessee Child Support Magistrate who last week ordered that a 7-month old child's name be changed to Martin instead of Messiah, even though Messiah was among the fastest rising baby names last year. The parents were in court because they could not agree on a last name for their child, but Magistrate Lu Ann Ballew ordered the child's first name changed also. She ruled that it is in the best interest of the child, particularly if he grows up in largely Christian Cocke County (TN).  In issuing the order that the boy be named Martin DeShawn McCullough (incorporating the last names of both parents), Magistrate Ballew said: "The word Messiah is a title and it's a title that has only been earned by one person and that one person is Jesus Christ." The child's mother is appealing the magistrate's decision to the Tennessee Chancery Court. A hearing is scheduled for Sept. 17.

Suit Charges School Officials With Ignoring Anti-Jewish Harassment of 13-Year Old

The Quincy (MA) Patriot Ledger reports on a lawsuit filed July 30 in Massachusetts federal district court by the parents of a 13-year old charging Carver, Massachusetts school officials with ignoring and failing to prevent anti-Semitic harassment and bullying of their son.  The suit alleges that since the boy began attending Carver Middle High School in 2011 he has been subjected to derogatory slurs, Nazi salutes and physical abuse from a group of other boys, two of whom were arraigned last month on assault and battery and civil rights charges.

Recent Articles and Books of Interest

From SSRN:

• Kara Loewentheil, When Free Exercise Is A Burden: Protecting 'Third Parties' in Religious Accommodation Law, (August 6, 2013).
• Susan C. Hascall, Islamic Commercial Law and Social Justice: Shari’ah Compliant Companies, Workers’ Rights, and the Living Wage, (St. John's Law Review, Vol. 88, No. 1, 2014).
• Engy Abdelkader, To Judge or Not to Judge: A Comparative Analysis of Islamic Jurisprudential Approaches to Female Judges in the Muslim World (Indonesia, Egypt and Iran), (Fordham International Law Journal, Forthcoming).
• Iain T. Benson, Religious Interfaith Work in Canada and South Africa with Particular Focus on the Drafting of a South African Charter of Religious Rights and Freedoms, (HTS Teologiese Studies/Theological Studies 69(1), Art. #1319, DOI: org/10.4102/hts.v69i1.1319 (2013)).
• Muhammad Munir, Freedom of Expression, Information, Thought and Religion in Islam and Convention on the Rights of the Child (CRC), (July 13, 2013).

From SmartCILP:

• William E. Nelson, The Persistence of Puritan Law: Massachusetts, 1660-1760, [Abstract], 49 Willamette Law Review 307-409 (2013).

New Books:

• Steven D. Smith, The Rise and Decline of American Religious Freedom, (Harvard Univ. Press, Feb. 2014).
• Kimberly D. Richman, License to Wed: What Legal Marriage Means to Same-Sex Couples, (NYU Press, Dec. 2013).

British Equalities Office Implements Long Process to Implement Ban On Caste Discrimination

For a number of years, Britain has debated whether to include caste discrimination among individuals from the Indian subcontinent as part of its anti-discrimination laws. The Equality Act 2010, Sec. 9, gave the government authority to issue an Order to include caste discrimination. Then the Enterprise and Regulatory Reform Act 2013, Sec. 97, required the government to issue such an Order, and not repeal it until at least 2015.  Last month the Government Equalities Office issued a timetable (full text) for public consultation and drafting of the caste legislation, projecting that a final draft Order would be introduced into Parliament in Summer 2015. The Dalit Solidarity Network, in a July 29 press release, charged that the timetable is really an attempt by the government to delay or kill the ban.  As reported yesterday by the Times of India, the Alliance of Hindu Organisations opposes the ban:

For the AHO, the two-year consultation has come as a fulfillment of its demand. It wants the consultation to address "the issues of definition of caste, the need to avoid disclosure of caste and a sunset clause to allow the removal of the legislation". AHO has also expressed concerns about the "intolerant, offensive and inaccurate comments" that had been made, "in particular in the House of Lords", against the Hindu community during the debates in April on the anti-caste discrimination law.

Recent Prisoner Free Exercise Cases

In Williams v. Allen, 2013 U.S. Dist. LEXIS 109388 (MD GA, Aug. 5, 2013), a Georgia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 110468, July 3, 2013) and permitted a Muslim inmate to proceed against the prison warden with his complaint that his free exercise rights were infringed when he was denied a nutritionally adequate vegan diet.

In Salim v. Carlson, 2013 U.S. Dist. LEXIS 110459 (ED WI, Aug. 6, 2013), a Wisconsin federal district court, finding factual disputes, allowed a Muslim inmate to move ahead with his complaint that while in administrative segregation he was denied a Qur'an, and was denied a Salat schedule and clock, the opportunity to fast during Ramadan and to participate in feast day activities.

In Leach v. New York City, 2013 U.S. Dist. LEXIS 110611 (SD NY, Aug. 2, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 110658, March 6, 2013) and dismissed a suit by an inmate who claimed to be an "unorthodox [J]ewish religious observer". Plaintiff complained that the City failed to provide him with Kosher Matzos on a regular basis and did not allow him to speak with a Rabbi on one occasion.

In Diggs v. Volpe, 2013 U.S. Dist. LEXIS 111365 (SD NY, Aug. 7, 2013), a New York federal district court dismissed a Muslim inmate's complaint that for a 4-month period while in disciplinary confinement he was unable to attend congregate religious services.

In Vazquez v. Officer Waln, 2013 U.S. Dist. LEXIS 111437 (MD NC, Aug. 7, 2013), a North Carolina federal magistrate judge dismissed RLUIPA, free exercise and equal protection claims by a Mexican-born Native American inmate who objected when Religious Box was confiscated because he failed to store it in his locker.

In Perry v. Knowles, 2013 U.S. Dist. LEXIS 111617 (ED TN, Aug. 8, 2013), a Tennessee federal district court dismissed an inmate's complaint that the jail administrator confiscated his religious material and failed to tell him the time so he would know when to pray.

In Mead v. Palmer, 2013 U.S. Dist. LEXIS 112291 (ND IA, Aug. 9, 2013), an Iowa federal district court permitted a civilly committed sex offender to proceed with his complaint that for two years authorities have refused to furnish him with a minister of his faith to minister to him in a Sunday service.

U.S. Flies Rescued Family Back After Their Failed Attempt To Sail To Kiribati For Religious Freedom

AP reports that U.S. Embassy officials in Chile have arranged for the flight back to the United States of 5 members of a northern Arizona family who were rescued after 2 months at sea in a failed attempt to sail their small boat from California to the island nation of Kiribati. According to Hannah Gastonguay, her family left the U.S. because they were fed up with government interference with religious independence. She said that as Christians they don't believe in "abortion, homosexuality, in the state-controlled church," and objected to being "forced to pay these taxes that pay for abortions we don't agree with." The Gastonguays are not members of any church; their beliefs come through reading the Bible and prayer.

Glitch In Affordable Care Act Threatens Viability Of Church Health Plans; Fix Introduced But Unlikely To Pass

Religion News Service reports today on a technical glitch in the Affordable Care Act that will make it difficult for churches to continue to offer church health plans.  Under the Act, tax credits are available to low-income and middle class families to assist them in purchasing insurance through the government-run exchanges.  However the same credits are not available for church employees to use to purchase insurance under church plans. This means that many clergy and other church employees who qualify for tax credits are likely to pull out of church plans and purchase insurance on exchanges. That may well jeopardize the viability of church plans.  S. 1164, The Church Health Plan Act of 2013, was introduced in June by Senators Mark Pryor (Ark.) and Chris Coons (Del.) to correct this inconsistency so tax credits can be used for church plans.  However Republican opposition to enacting improvements to Obamacare make it unlikely that the bill will be enacted.

Same-Sex Marriage Developments Continue

Developments stemming from the U.S. Supreme Court's recent same-sex marriage decisions continue to be reported:

According to yesterday's Deseret News, Utah businessman Jonathan Johnson, executive vice chairman of  Overstock.com, is undertaking a national campaign, beginning in Utah, urging states to amend their constitutions to protect religious organizations from being required to  "solemnize, officiate in, or recognize any particular marriage or religious rite of marriage in violation of its beliefs."

Under American immigration law, an individual may receive a derivative visa if his or her spouse or first-degree relative is eligible for U.S. residency.  Haaretz reports that the American embassy in Israel has issued its first derivative visas to Israeli same-sex spouses who were married legally outside of Israel.

Court Invalidates Temporary Land Use Limits On Pregnancy Center As Overbroad and Vague

In The Life Center, Inc. v. City of Elgin, Illinois, (ND IL, Aug. 8, 2013), an Illinois federal district court invalidated Elgin's temporary land use provision as unconstitutionally overbroad and vague. The ordinance was challenged by The Life Center, a religiously-based organization that furnishes pregnant women with religious literature and certain prenatal services. Its mobile facility operates from commercial parking lots with the consent of the owners.  The ordinance limits the number of days the facility can operate. The court held:

The definitions under the Code for the terms "land use" and "structure" are so broad, they would encompass virtually all types of activity, including a substantial amount of activity protected under the First Amendment.

Plaintiffs claim that the 2012 amendments to the city ordinance that put in place the challenged provisions were targeting The Life Center. Christian Newswire carries TLC's press release on the decision.

U.S. Amicus Brief In Supreme Court Supports Town's Invocation Policy

Some two dozen amicus briefs in support of the Town of Greece, New York's prayer policy have been filed with the U.S. Supreme Court in Galloway v. Town of Greece. The case is scheduled to be argued this term.  (Amicus briefs in support of plaintiffs challenging the policy are not yet due.) Among the most interesting of the briefs supporting the town is the one filed by the Solicitor General on behalf of the United States. (Full text.) In the brief filed Aug. 2, the SG argues that legislative prayer which does not proselytize, disparage any religion or advance a particular faith does not violate the Establishment Clause "merely because most prayer-givers are Christian and many or most of their prayers contain sectarian references." The brief adds: "Neither federal courts nor legislative bodies are well suited to police the content of such prayers." The Second Circuit held that the town's invocation practices convey the impression that it is endorsing Christianity. (See prior posting.)

Obama Sends Muslims Eid-al-Fitr Greetings

The White House yesterday released a statement (full text) sending warmest greetings from the President and First Lady to Muslims in the U.S. and around the world celebrating Eid-al-Fitr. The President also used the statement to highlight the humanitarian food and other aid being sent to the people of Syria.

Plaintiff Gives Up On Trying to Hold Vatican Liable In Priest Abuse Case

On Aug. 5, the U.S. 9th Circuit Court of Appeals dismissed at the request of the parties the appeal in Doe v. Holy See which sought to hold the Vatican vicariously liable in a priest sexual abuse case. AP reports that plaintiff's lawyer Jeff Anderson said that his client has grown tired after ten years of litigation. Vatican Radio has published an interview about the case with the Vatican's lawyer Jeffrey Lena. (See prior related posting.)

Suit Challenges Revised Contraceptive Coverage Mandate Accommodation for Non-Profits

In June, the Department of Health and Human Services issued final rules providing a compromise for religiously sponsored non-profits such as hospitals and colleges that object to the Affordable Care Act's contraceptive coverage mandate. (See prior posting.) The Becket Fund announced yesterday that a lawsuit challenging these revised rules has been filed by Colorado Christian University whose attempt last year to challenge the mandate was dismissed on ripeness grounds. The complaint (full text) in Colorado Christian University v. Sebelius,  (D CO, filed 8/7/2013) contends that the final compromise is "meaningless,"  saying in part:

147. In sum, for both insured and self-insured organizations, the accommodation is nothing more than a shell game that attempts to disguise the religious organization’s role as the central cog in the government’s scheme for expanding access to contraceptive and abortifacient services.

148. Despite the accommodation’s convoluted machinations, a religious organization’s decision to offer health insurance and its self-certification continue to serve as the sole triggers for creating access to free contraceptive and abortifacient services.

State Department Launches New Office of Faith Based Community Initiatives

Last October, the U.S. State Department's Religion and Foreign Policy Working Group issued a White Paper recommending creation of an institutionalized mechanism for the State Department to use in communicating and collaborating with religious communities around the world. At a press conference today, Secretary of State John Kerry announced the launching of the State Department's Office of Faith Based Community Initiatives whose mission is to partner with faith communities to solve global challenges. The Office will be headed by Dr. Shaun Casey.  Also speaking at the press conference, Melissa Rogers, Director of the White House Office of Faith-Based and Neighborhood Partnerships, issued some 1st Amendment cautions, saying:

[A] guiding principle for all of this work will be that our actions must be consistent with the United States Constitution. Employees of our government can and should engage faith-based leaders and communities on US policy priorities just as they do other civil society leaders and communities. At the same time, our precious religious freedom guarantees of the First Amendment mean that we must observe some special rules when we engage religious actors and matters, such as ensuring governmental neutrality toward faith. All diplomatic and consular posts will receive guidance and continuing assistance on these important issues.

The exact relationship of the new office to existing State Department officials concerned with religious issues is not clear, though both Secretary Kerry and Dr. Casey assured cooperation with them.  Currently serving in roles related to religion are  Ambassador-at-Large for International Religious Freedom Suzan Johnson Cook, Special Envoy to the Organization of Islamic Cooperation Rashad Hussain, Special Envoy to Monitor and Combat Anti-Semitism Ira Forman, and Special Representative to Muslim Communities Farah Pandith.

Meanwhile, The Immanent Frame has published an exchange between 17 experts on the prospects for the new Office and its implications for religious diversity and non-religious civil society organizations.

Federal Faith-Based Partnership Reforms Grind Slowly Ahead With New OMB Memo

As previously reported, in April 2012 the White House issued the Recommendations of the Interagency Working Group on Faith-Based and Other Neighborhood Partnerships which provides federal agencies with guidance on carrying out Executive Order 13559 (Nov. 17, 2010)-- the executive order that adopted a number of recommendations of the President's faith-based task force. Now, as announced last week by the White House Office of Faith-based and Neighborhood Partnerships, the Office of Management and Budget has finally issued a Memorandum (full text) instructing federal agencies to take steps, consistent with that Report, to carry out the 2010 Executive Order.  However, further delay is likely since the Memorandum states that the Working Group that created the 2012 Report will now be reconvened to develop a plan for agency implementation of the Executive Order. After that plan is issued, agencies will have 120 days to send OMB their agency-specific plan for amending their rules and guidance documents. Religion News Service yesterday reported on  these developments. [Thanks to Michael Lieberman for the lead.]

Kenyan Lawyer Wants International Court To Vindicate Jesus

According to a report last week in the Jerusalem Post and an earlier report by Standard Digital News, a Kenyan lawyer is attempting to get the International Court of Justice (ICJ) to give legal vindication to Jesus by declaring his trial before the Roman courts centuries ago a legal nullity. The suit was originally filed in the High Court of Kenya in 2007. (Full text of complaint.) When the Kenyan courts rejected the suit, lawyer Dola Indidis petitioned the ICJ.  The suit names , Tiberius (emperor of Rome, 42 BC-37 AD), Pontius Pilate (Governor of Judea), Annas, Jewish Chief Priest, Elders and Teachers and King Herod as defendants. It also names the Republic of Italy and the State of Israel on the theory that they are the successors to the laws of the Roman Empire that were in force at the time of Jesus' crucifixion. An ICJ spokesman says it only has jurisdiction in suits between states, and not here where a private party is suing. However Indidis says that the ICJ has constituted a panel to hear the case.

Former School Employee Who Suffered Religious Pressure Can Proceed On Discrimination and Retaliation Claims

In Scott v. Montgomery County School Board, (WD VA, Aug 5, 2013), a Virginia federal district court allowed a former school library media aide to move forward with her religious discrimination and retaliation claims growing out of alleged Christian religious pressure from her immediate supervisor. The court however dismissed plaintiff's hostile work environment claim, as well as her claim for punitive damages.

Wire Service Exempt From State Anti-Discrimination Ban In Refusal To Publish Article On Religious Beliefs

In Medhi v. Commission on Human Rights and Opportunities, (CT App., official release date: Aug. 13, 2013), the Appellate Court of Connecticut dismissed a suit in which plaintiff claimed he had been discriminated against on the basis of religion when the Associated Press refused to publish articles he had written regarding his religious beliefs.  The court affirmed the Human Rights Commission's holding that AP was exempt from the ban on religious discrimination in public accommodations (CT Stat. § 46a-64 (a)) where the complaint alleged a matter reserved for journalistic discretion. Ordering AP to print the material would have violated the 1st Amendment.

Air Force Agrees That Officers May Take Secular Version of Commissioning Oath

The American Humanist Association reports today that the U.S. Air Force has responded positively to its letter complaining on behalf of an Officer Trainee about Air Force Form 133 (Oath of Office).  The oath of office on the form (while allowing the individual signing it to "affirm" rather than "swear") ends with the phrase "so help me God." AHA's letter, complaining on constitutional grounds, was sent on behalf of an officer trainee who was required by his flight commander to sign the oath, even though the theistic reference violates his beliefs. The Officer Trainee was also told he would be required to take an identical verbal oath.  Air Force officials, admitting their mistake and apologizing, now assure AHA that the Officer Trainee will be permitted to take a secular version of the verbal oath that is administered, and will be allowed to revise the written version he signed. Other members of the graduating class are also being advised of the secular option.

Russian Kopimists Plan To Challenge Internet Piracy Law As Insult To Religious Feelings

In Russia, a new law that takes effect this week aimed at stopping Internet piracy has given a stronger hand to copyright holders. (Hollywood Reporter.)  Opponents of the law have devised an ingenious new strategy.  As reported by RT and by Network World, activists in 5 Russian cities will apply to register the Missionary Church of Kopimism as a religion. Kopimism is a movement, centered in Sweden, that believes sharing information is a sacred value. Once the Kopimists complete the paperwork, they then plan to file suit to invalidate the new anti-piracy law on the ground that it violates another recent law that prohibits insulting the religious beliefs and feelings of citizens. (See prior posting.)

County Commissioners Pray In Another Room To Technically Comply With Court Order

As previously reported, last month a federal district court issued a preliminary injunction barring the Rowan County, North Carolina Board of Commissioners from opening Board meetings with sectarian prayers. According to the Salisbury Post, at yesterday's Board meeting the commissioners showed technical compliance. After opening the meeting and reading a statement saying they believed the injunction was unconstitutional, the commissioners briefly recessed the meeting so that they could go into another room and pray. During the three minutes they were gone, someone attending the meeting stood up and offered their own prayer, ending "in Jesus' name." The commissioners returned before that prayer was completed.

Indicted Minister of Cannabis Church Wins Partial RFRA Victory

Hawai'i Daily News reports that last Wednesday a Hawaii federal district court gave a partial victory to Rev. Roger Christie who is charged with distributing marijuana to his parishioners as part of his religious ministry.  Judge Leslie E. Kobayashi ruled that as a matter of law, two of the elements of a Religious Freedom Restoration Act defense have been shown.  Christie's actions stem from a sincere belief in a legitimate religion, and the government has substantially burdened his religious exercise. The government can still prevail if at trial it shows that it had a compelling interest in barring the religious use of cannabis here, and that it used the least restrictive means to further that interest.

Australian Election Date Moved, Avoiding Conflict With Yom Kippur

Australia's Prime Minister Kevin Rudd yesterday called elections for Sept. 7, instead of the Sept. 14 date that had been set by former Prime Minister Julia Gillard.  The Sept. 14 date conflicted with the Jewish holy day of Yom Kippur. As reported by the Times of Israel:

Australia, home to more than 100,000 Jews, has compulsory voting, meaning all citizens must cast their vote in national elections or face a penalty, usually a fine or community service. Since elections are always held on Saturdays, Orthodox Jews are already used to casting their votes via the mail, but there was concern that [if elections were scheduled for Yom Kippur] less observant members of the community may fail to follow suit and miss voting by going to synagogue.

Recent Articles of Interest

From SSRN:

• Pasquale Annicchino, Recent Developments Concerning the Promotion of Freedom of Religion or Belief in Italian Foreign Policy, (The Review of Faith & International Affairs (Forthcoming)).
• Asad Zaman, Islam Versus Economics, (Oxford University Handbook on Islam and the Economy, Kabir Hassan and Mervyn Lewis, eds., 2013 Forthcoming).
• Petur O. Jonsson, Some Thoughts on Hamill, the Two Kingdoms, and the Ethics and Logic of Higher Tax Rates and Redistribution, (Journal of Accounting, Ethics and Public Policy, Vol. 14, No. 3, 2013).
• Douglas Laycock, Religious Liberty and the Culture Wars, (U. Ill. L. Rev., 2014, Forthcoming).
• Perry Dane, Allan R. Stein & Robert F. Williams, Saving Rutgers Camden, (Rutgers Law Journal, Forthcoming).
• Howard Kislowicz, Freedom of Religion and Canada's Commitments to Multiculturalism, (31 National Journal of Constitutional Law 1, 2012).
• Reva B. Siegel, Dignity and the Duty to Protect Unborn Life, (in Understanding Human Dignity, Christopher McCrudden ed., Forthcoming 2014).

From SmartCILP and elsewhere:

• Jack M. Beermann, Jewish Identity and Judging: Seymour Simon of Illinois, 44 Loyola University Chicago Law Journal 939-964 (2013). 
• Edward J. Larson, Teaching Creation, Evolution, and the New Atheism in 21st Century America: A Window On an Evolving Establishment Clause, 82 Mississippi Law Journal 997-1048 (2013).
• Peter P. Meringolo, Catholic Moral Teaching and Natural Law: Changing the Way We Think About and Teach Professional Legal Ethics, 44 Loyola University Chicago Law Journal 1067-1091 (2013).
• Niaz A. Shah, The Use of Force Under Islamic Law, [Abstract], 24 European Journal of International Law 343-365 (2013).
• Rex Adhar, Is Secularism Neutral?, [Abstract], Ratio Juris, Vol. 26, Issue 3, pp. 404- 29, Sept. 2013.

[Updated]

British Appeals Tribunal Says Firing of Chef For Using Non-Kosher Jam Was Pretext For Disability Discrimination

In Carmelli Bakeries Ltd. v. Benali, (EAT, July 31, 2013), Britain's Employment Appeal Tribunal upheld the finding of an Employment Tribunal that a kosher bakery's discharge of a pastry chef for intentionally using non-kosher jam in a cake was unfair.  It concluded that the employee's treatment was in fact motivated by the employer's dislike of accommodations that had to be made for the employee's medical disability caused by sciatica.  However, the Appeal Tribunal held that the Employment Tribunal should have considered whether the £35,567 award for compensation should have been reduced for contributory fault of the employee.  Hendon & Finchley Times reports on the decision.

Recent Prisoner Free Exercise Cases

In Williams v. Bragg, (5th Cir., July 29, 2013), the 5th Circuit rejected an inmate's claim that his free exercise and RFRA rights were infringed when the prison's regular weekly Muslim congregational prayer service was cancelled on several occasions.

In Native American Council of Tribes v. Weber, 2013 U.S. Dist. LEXIS 105712 (D SD, July 29. 2013), a South Dakota federal district court denied the South Dakota Department of Corrections motion to stay pending appeal to an injunction that was awarded requiring that it allow tobacco to be used in Native American rituals.

In Field v. Beneze, 2013 U.S. Dist. LEXIS 105897 (D CO, July 29, 2013), a Colorado federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 105938, June 24, 2013) and dismissed an inmate's claim that his free exercise rights were infringed when, as he was removed from the general inmate population, his property was confiscated including religious materials.

In Giorgio v. Clarke, 2013 U.S. Dist. LEXIS 107262 (D MA, July 31, 2013), a Massachusetts federal district court allowed former Native American inmates to proceed against certain defendants on their complaint that while incarcerated they were denied access to sweat lodge ceremonies, use of prayer feathers, sage cleansing, and smudging ceremonies.

In Smolsky v. Department of Corrections, 2013 Pa. Commw. Unpub. LEXIS 606 (PA Commonw. Ct., Aug. 1, 2013), the Commonwealth Court of Pennsylvania rejected an inmate's claim that because his Roman Catholic faith prohibits lying, his free exercise rights were infringed when the sex offender treatment program forced him to admit that he committed crimes for which he is innocent.

In Davis v. Hubler, 2013 U.S. Dist. LEXIS 107585 (ED NC, July 30, 2013), a North Carolina federal district court permitted an inmate to proceed with his complaint that he is being denied the Nation of Islam Final Call weekly religious publication, but dismissed his complaint that the bean pies furnished him for Savior's Day were made in the prison kitchen rather than at the outside bakery he preferred.

In Donahue v. Pennsylvania, 2013 U.S. Dist. LEXIS 107880 (MD PA, July 30, 2013), a Pennsylvania federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 107518, June 4, 2013) and dismissed an inmate's claim that his religious prayer books were wrongfully seized by police when he was arrested. He sought their return, their exclusion as evidence in his upcoming state criminal trial, dismissal of criminal charges against him and millions of dollars in damages.

In Doe v. Sex Offender Registry Board, 2013 Mass. App. Unpub. LEXIS 808 (MA App., Aug. 2, 2013), a Massachusetts appellate court rejected an inmate's claim that his free exercise rights were violated by the Sex Offender Registry Board's negative or neutral reaction to his plans to attend church following his release. When he was offending, he told victims that he was a Sunday school teacher and planned to become a pastor.

In Robinson v. Parker, 2013 U.S. Dist. LEXIS 108455 (WD KY, Aug. 2, 2013), a Kentucky federal district court dismissed complaints by an inmate who is a member of the Moorish Science Temple of America that he is required to use the name under which he is convicted and not permitted to use "-El" after his surname.  Plaintiff had asserted both 1st Amendment retaliation and RLUIPA claims.

Negligence Claim Against Diocese Over Rape by Deacon May Proceed

In Doe v. Corporation of the Catholic Bishop of Yakima, 2013 U.S. Dist. LEXIS 109006 (ED WA, July 30, 2013), a Washington federal district court denied defendants' motion for summary judgment in a suit alleging negligence by the Catholic diocese, the bishop and the parish after a deacon raped a 17-year old male parishioner. The court said in part:

the Free Exercise Clause does not bar a negligence claim against Defendants for hiring Ramirez and placing him in a position of trust and authority from which he was able to sexually abuse Plaintiff....

It would be irrational to require a child sexual abuse victim, who seeks to bring a negligence claim against a church, to prove that the church had actual knowledge of the risk posed by its abuser employee. In effect, it would create a disincentive for a church to investigate prospective employees before placing them in positions of trust and authority over children. Instead, churches would be motivated to engage in "ostrich" behavior to avoid confronting – and thus being forced to act upon – potential warning signs about such  employees. Protecting children is a paramount policy consideration ... and it is ill-served if those trusted with such responsibility can blithely ignore red flags about their employees and subsequently avoid liability for the ensuing harm.

L.A. Religious Orders Release Personnel files Under 2007 Clergy Abuse Settlement

The Los Angeles Times reports that on Wednesday, 1700 pages of personnel files from 5 Los Angeles area Catholic religious orders were made public pursuant to a 2007 settlement with hundreds of sexual abuse claimants. Files were released by the Marianists, the Benedictines, the Oblates and two orders of nuns-- the Cabrini Sisters and the Sisters of St. Joseph of Carondele.  An additional 45 religious orders will release files in the coming months. Many of the files do not mention abuse allegations, or refer to them only obliquely.  According to the Times:

In the case of Benedictine priest Mathias Faue [full text of file], one supervisor wrote vaguely of “his problem” or “difficulty.” In the file of Oblate Father Ruben Martinez [full text of file], an order official repeatedly switched to Japanese characters to note sensitive subjects, including his admissions of “homosexuality” and “relations with boys.”

6th Circuit: Campus Outside Speaker Rules, Challenged By Evangelist, Are Vague

In McGlone v. Cheek, (6th Cir., Aug. 2, 2013), the U.S. 6th Circuit Court of Appeals held that a traveling Christian evangelist would likely succeed in showing that the University of Tennessee's policy requiring outsiders to obtain sponsorship in order to speak on campus is unconstitutionally vague.  Remanding with instructions to issue a preliminary injunction, the court explained:

[T]he University has insisted that, together, policy #1720-1-2 and the Freedom-of-Expression policy establish the University’s sponsorship requirement.  Policy #1720-1-2 makes no reference to on-campus speakers or sponsorship, but it says that guests are allowed on campus... [if] invited by a university student or employee.... The Freedom-of-Expression policy says that “[a]ny person sponsored by a registered campus organization is free to speak” on campus. Inexplicably, the University conflates both policies and concludes that the University’s sponsorship requirement clearly provides that students, faculty, and staff have the authority to grant sponsorship. As a result of the inconsistency between the two policies, it is unclear to the ordinary person who has the authority to grant sponsorship.

AP reports on the decision.  (See prior related posting.)

An Attempt To Be Complete In Covering the Contraceptive Coverage Mandate Decisions

As previously reported, among the many for-profit businesses challenging the Affordable Care Act's contraceptive coverage mandate was Michigan-based Eden Foods.   There have been at least two opinions in the case that seem to have fallen between the cracks of Religion Clause's coverage.  A March 22, 2013 district court opinion denied an emergency motion for a temporary restraining order in the case, and it appears that subsequently the district court denied a preliminary injunction as well.  Then in a June 28, 2013 opinion, the U.S. 6th Circuit Court of Appeals denied a motion for a preliminary injunction pending appeal of the district court's denial of a preliminary injunction. The 6th Circuit said in part: "We are not persuaded, at this stage of the proceedings, that a for-profit corporation has rights under the RFRA."

Pastor Liable For Self-Employment Tax

In Rogers v. Commissioner, (TC, Aug. 1, 2013), the United States Tax Court held that a pastor at the Pentecostals of Wisconsin is liable for self-employment tax on $43,200 in home mortgage, utility and credit card payments made on his behalf by his church.  He argued that members of religious orders who have taken a vow of poverty are not subject to tax on income received as agents of the orders of which they are members.  However, the court concluded that here the taxpayer was never paid a salary by a third party that he remitted to his church. Instead, the church merely paid some of his expenses. The payments were not properly designated as a parsonage allowance, nor did petitioner file the required certificate to exempt himself from self-employment tax under Sec. 1402(e). [Thanks to Steven H. Sholk for the lead.]

Bangladesh Court Voids Registration of Country's Largest Islamic Party

In Bangladesh yesterday, the High Court in Dhaka declared that the registration of the country's largest Islamic party with the Bangladeshi Election Commission is illegal and void. According to the Frontier Post, the ruling against Jamaat-i-Islami came after a petition was filed arguing that the party's charter conflicts with the country's secular constitution. BD News24 reports that Jamaat-i-Islami now plans to shut down the country for 48 hours beginning Aug. 12 in protest of the court's decision.

Muslim Groups Oppose NYPD's Kelly For Homeland Security Spot

According to Religion News Service yesterday, Muslim-American groups are expressing growing opposition to suggestions that President Obama may nominate NYPD Commissioner Raymond Kelly as head of the Department of Homeland Security. He would replace Janet Napolitano who is leaving DHS to head the University of California System. The Muslim groups say that Kelly oversaw an NYPD surveillance program that targeted Muslims solely on the basis of their religion. (See prior posting.)

7th Circuit: Factual Issue Remains On Whether Employer Had Notice That Leave Request Was Religious In Nature

In Adeyeye v. Heartland Sweetners, L.L.C., (7th Cir., July 31, 2013), the U.S. 7th Circuit Court of Appeals reversed a district court's summary judgment for defendant in a Title VII religious accommodation case. The request by plaintiff, a native of Nigeria, to take several weeks of unpaid leave to travel to Nigeria to lead his father's burial rites was refused by his employer. The Court of Appeals rejected the district court's finding that the employer did not have notice of the religious nature of the request. It held that a genuine issue of material fact remained, saying:

We recognize, of course, that the religious beliefs and practices Adeyeye referred to are not as familiar as beliefs and practices closer to the modern American mainstream. But the protections of Title VII are not limited to familiar religions.

Saudi Activist Sentenced To 7 Years and 600 Lashes For Insulting Islam

Human Rights Watch reports that on July 29 a Saudi Arabian court sentenced blogger Raif Badawi to 600 lashes and 7 years in prison for insulting Islam through his website and in comments he made on television. Three months was added for "parental disobedience." The court also ordered his website closed. An apostasy charge against Badawi was dropped after he affirmed to the court that he is a Muslim and recited the Shehadeh. Badawi, who created his Free Saudi Liberals website in 2008 to encourage debate on religious and political matters in Saudi Arabia, has been detained since June 2012.

FFRF Protests Religious Quotes In U.S. Passport Design

Last week, the Freedom From Religion Foundation again protested to the U.S. State Department over the design of U.S. passports. (Press release.)  The passport, redesigned in 2007, includes a quote on each page aimed at "reflecting the hope and success that is the United States of America." (Background.) In its letter (full text) to the State Department, FFRF raised Establishment Clause concerns about four of the quotes which explicitly mention "God." It also made a Freedom of Information Act request for documents relating to decisions on the redesign.