Developments In Challenges To Contraceptive Coverage Mandate

On Tuesday, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Eden Foods Inc. v. Sebeius, (cert. filed 11/12/2013).  In the case, the 6th Circuit Court denied a preliminary injunction to a for-profit natural foods corporation and its Catholic owners who claim that the contraceptive coverage mandate under the Affordable Care Act violates their free exercise rights as protected by the Religious Freedom Restoration Act. (See prior posting.) Thomas More Law Center announced the filing of the cert. petition.

In June (see prior posting), a Pennsylvania federal district court granted Geneva College a preliminary injunction pending a decision on the merits in its challenge to the requirement that it include in its student health plans coverage for contraceptives that it considers abortifacients. As reported by BNA Daily Report for Executives [subscription required], the Christian college has now filed a motion and supporting Memorandum of Law (full text) seeking a similar preliminary injunction for the health plan covering its employees. The case is Geneva College v. Sebelius, (WD PA, motion filed 11/12/2013).

Court Invalidates Couple's Agreement Negotiated Before Bet Din For Lack of Formalities

In Katz v. Katz, (S.Ct. Kings Co. NY, Nov. 7, 2013), a New York trial court held that an agreement negotiated before a Jewish rabbinical court (Bet Din) by a husband and wife is unenforceable because it was not formally acknowledged in the manner required by NY Domestic Relations Law Sec. 236B(3).  As described by the court, the wife argued that she:

was a "victim of extortion" in the sum of $70,000.00 in order to obtain a get, a Jewish divorce, from the husband....  [She] alleges that she only conceded to joint custody and to the parenting access schedule detailed in the May 17, 2010 writing because she "was intimidated to give in to the Defendant's unreasonable demands of custody, visitation and holidays" and that she believed that the husband would not grant her a get [a religious divorce] unless she did so.... She alleges that she placed $50,000.00 in escrow to "guarantee performance" that the husband would grant her a get and that she has "not received [the escrow] money and believes that it has been given to the Defendant, and that he is using [her escrow] money to support this litigation."

The husband denies that the wife was a victim in process of obtaining the get and alleges ... that if the wife "did not agree with the tenets of the Jewish Law and Torah or felt that the process was unfair to her, she did not have to go through the Get process" and that it is "disingenuous of her to receive the benefit of the Get and then attack the Jewish Law and Torah under which it was issued." He "categorically" denies the he received any money from the wife in exchange for him granting her a get. The husband alleges that it is he, not the wife, who is being victimized in this litigation: he alleges that "[i]t is only because [he] did not think [the son] should be traveling to Israel, that [the wife] is now retaliating against [him] by trying to take away what [he] value [sic] most in life — custody of [his] son."

Norway's Government Will Propose New Law On Ritual Circumcision

Norway's health minister Brent Hoie says that by this spring the government will introduce new legislation on non-medical circumcision of boys under 18. Each year some 2000 Muslim and 7 Jewish newborns are circumcised in Norway. According to the Jerusalem Post yesterday, the announcement follows a recommendation by Norway's Children’s Ombudswoman Anne Lindboe to completely ban non-medical circumcision of boys under 18 without their consent. Lindboe said: "This is not due to any lack of understanding of minorities or religious traditions, but because the procedure is irreversible, painful and risky."  It is not clear what the proposed bill will provide.

Jewish Leaders Criticize Bush 43's Decision To Speak At Messianic Jewish Fundraiser

CNN reports that Tevi Troy, George W. Bush's former Liaison to the Jewish Community is critical of the former president's decision to speak tonight at the fundraising dinner of the Messianic Jewish Bible Institute, a group whose goal is to convert Jews to Christianity.  CBS reports that other Jewish leaders such as ADL director Abe Foxman and Los Angeles rabbi David Wolpe have also spoken out against President Bush's decision. MJBI's website says:

The vision of the MJBI is to bring Jewish people into a personal relationship of faith with Yeshua the Messiah, knowing their acceptance will eventually mean life from the dead (Romans 11:15).

Appeals Court Dismisses Failure To Supervise Suit Against Diocese By Abuse Victim

In D.T. v.Catholic Diocese of Kansas City- St. Joseph, (MO App., Nov. 12, 2013), a Missouri state appeals court upheld the dismissal of claims against a Catholic diocese by plaintiff who was sexually abused by a priest serving in one of its parishes. The suit alleges that that the Diocese knew that the priest had sexually molested children in the past and knew that it was substantially certain that he would molest other children in the future.  Relying on the Missouri Supreme court's 1997 decision in Gibson v. Brewer, the appeals court held that negligence-based claims against the diocese are barred by the First Amendment because deciding them leads to excessive entanglement.  It also, reluctantly, dismissed the claims of intentional failure to supervise clergy because under Gibson, a diocese could be held liable in such cases only when the abuse occurred on property belonging to the diocese. The appeals court said it is bound by the state Supreme Court precedent, despite the questionable outcome it produces in this case:

Taken to its extreme, then, a religious organization could be fully cognizant that a member of its clergy, when placed near children, is certain or substantially certain to sexually molest children; but as long as it counsels its clergy to take their personal criminal proclivities to premises not owned, possessed, or controlled by the church and not to use a chattel of the church in the commission of the harmful and often criminal actions, there could be no civil liability for intentional failure to supervise. 

That result seems to contradict the spirit and intent of the intentional tort recognized and announced by the Gibson court.... Perhaps this is a case that our Supreme Court may wish to accept on transfer to clarify application of the elements of the tort of intentional failure to supervise clergy that it previously announced in Gibson, particularly in light of the fact that both the Restatements (Second) of Agency and Torts have been revised since Gibson was decided.

AP reports on the decision.

Nevada Supreme Court Stays Out of Dispute Over Judge's Recusal For Religious Ties

On Nov. 8, the Nevada Supreme Court denied a Petition for Writ of Mandamus or Prohibition in Health Plan of Nevada v. District Court (Lynam).  As reported by the Las Vegas Review-Journal, in the case the Health Plan of Nevada was attempting to get the court to order trial court judge Douglas Smith back on a case in which Smith had recused himself.  In the case in which plaintiffs are suing over contracting hepatitis C from a doctor covered by the Health Plan HMO, the judge stepped out after plaintiffs claimed that the attorney representing the HMO held a position of authority over the judge in the Mormon Church.  The attorney,  Mark Hutchison (a state senator and candidate for lieutenant governor) was one of two counselors to the president of Red Rock Stake (one of the 38 districts into which the Mormon Church in Nevada is divided). The judge served as a counselor to the bishop of one of the congregations in Red Rock Stake. Health Plan argued that Hutchison had no direct authority over Judge Smith in the Church, and in any event Hutchison has now withdrawn from representing Health Plan so the conflict is eliminated.

Snake Handling Pastor Charged Criminally; Authorities Tipped Off By Reality TV Show

RNS reported yesterday that the Tennessee Wildlife Resources Agency last week raided the Tabernacle Church of God in LaFollete, Tennessee and seized 53 venomous snakes handled by the congregation during worship services. Authorities arrested the church's pastor, Rev. Andrew Hamblin, who is the co-star of the National Geographic Chanel's reality series Snake Salvation.  Wildlife authorities were tipped off to the fact that there were snakes at the church because of the television show. Hamblin was charged with violations of Tennessee Code § 39-17-101 which prohibits using a poisonous snake in a way that endangers others. Hamblin says that the ban violates his and his congregation's religious liberty. They point to language in Mark 16: 18 to explain their snake handling rituals.

Hawaii Legislature Passes Marriage Equality Bill

Yesterday the Hawaii legislature gave final passage to SB1, the Hawaii Marriage Equality Act which will legalize same-sex marriage as of Dec. 2. One of the 19 representatives voting against the bill in the House was Rep. Jo Jordan, the first openly gay state legislator to vote against same-sex marriage.  She told Honolulu Magazine that her objections were in part based on a concern that the religious exemptions in the bill are too narrow.  The bill protects clergy who refuse to perform same-sex marriages or civil unions, and allows any religious organization or nonprofit that is "operated, supervised, or controlled by a religious organization" to refuse to provide goods, services or facilities for civil unions or marriages that are in violation of the organization's religious beliefs. According to the Honolulu Star-Advertiser, Gov. Neil Abercrombie has said he will sign the bill.  It is expected that he will do so today, beating Illinois to become the 15th state to legalize same-sex marriage.  The Illinois legislature passed marriage equality legislation last week (see prior posting), but Gov. Pat Quinn does not plan to sign it until Nov. 20. Shortly after the bill passed in Hawaii, President Obama issued a statement congratulating the legislature on its action, and saying that this made him even prouder to have been born in Hawaii.

U.S. Bishops Elect New Leaders; Focus On Christian Persecution Abroad

The U.S. Conference of Catholic Bishops began their Fall meeting in Baltimore yesterday.  As reported by CNS and the New York Times, outgoing USCCB president Cardinal Timothy Dolan in his address to fellow-bishops called for a new emphasis on combating persecution of Christians in countries such as Syria, Egypt, India and Nigeria. He said that we are living in what must be recognized as a new age of martyrs.  He claimed that as many as 1 million Christians have been killed for their faith so far in the 21st century, and said that it is a priority to urge political leaders to make the protection of "at-risk Christians a foreign policy priority."

The bishops elected their current vice-president, Archbishop Joseph E. Kurtz of Louisville, Kentucky, as the new president of the Conference, and elected Cardinal Daniel N. DiNardo of Galveston-Houston as vice president. (Press release.) (AP report.)  They also approved the drafting of a formal statement on pornography.

International Court of Justice Rules On Cambodian- Thailand Dispute Over Hindu Temple Site

Yesterday the International Court of Justice in the Hague issued a decision in Request for Interpretation of the Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand). (Full text of decision; Summary of the judgment; Press Release).  In 1962, the ICJ ruled in a border dispute that the Temple of Preah Vihear (now a UNESCO world heritage site) is located in Cambodian territory, and ordered that "Thailand is under an obligation to withdraw any military or police forces, or other guards or keepers, stationed by her at the Temple, or in its vicinity."  Yesterday's decision clarified what was meant by the area in the "vicinity" of the Temple. As described in a Voice of America report:

The unanimous ruling by the 17 judges of the world court says all of the raised land on which the ancient Khmer Hindu temple sits belongs to Cambodia.... While adjusting some of the disputed boundary, the decision leaves unresolved the sovereignty of much of the 4.6 square kilometer area in the immediate vicinity of the religious site.....

The ICJ decision rejects some territorial claims in the area made by each country thus it is not a total victory for either side.....

Within hours of the verdict, Thailand’s Prime Minister Yingluck Shinawatra appeared in a nationally televised address, saying the court had taken her country’s stance into consideration and that Bangkok should work with Phnom Penh to resolve outstanding issues.

The territorial dispute led to an exchange of gunfire and dozens of deaths in 2011.

Consent Order Requires Priest Charged With Sexual Misconduct To Petition Vatican For Removal From Priesthood

Bergen County, New Jersey prosecutor John L. Molinelli issued a press release last week announcing an unusual resolution in a clergy sex abuse case.  As explained by an RNS report yesterday, in 2007 Catholic priest Michael Fugee, in order to avoid a retrial on improper sexual conduct charges, signed an agreement, embodied in a judicial order and Memorandum of Understanding, banning him from ministering to children.  It was discovered earlier this year that Fugee violated the agreement by attending youth retreats and hearing confessions from teens.  In response, in May he was charged with 5 counts of criminal contempt.  On November 1, those charges were disposed of through a binding agreement and court order under which Fugee has agreed to petition the Vatican to remove him permanently from the priesthood.  Prosecutor Molinelli said that this result could not have been achieved by a contempt conviction because:

it is not believed that the American Justice System has such authority as a condition of probation or upon conviction. This is a requirement that will eliminate the threat of Michael Fugee, ever again, obtaining the trust of people through his clerical position nor using his ordained position as a Priest to exert improper contact with children.... The agreement that has been reached forever bars Michael Fugee from holding himself out as a current or former priest or spiritual advisor. Most importantly, he is prohibited from working with children in any capacity. 

Molinelli also emphasized that this new order will be supervised by the prosecutor's office, and not by the Archdiocese of Newark, in which Molinelli has lost confidence.

UPDATE: Here is the full text of the court's order in State of New Jersey v. Fugee, (NJ Super. Ct., Nov. 1, 2013).

Charter Affirming State Secularism Introduced Into Quebec Legislature

As previously reported, in August the ruling Parti Quebecois government in the Canadian province of Quebec announced its intention to introduce a secularist Charter of Quebec Values into the National Assembly.  Last Thursday it did so by introducing Bill 60, (full text) titled Charter Affirming the Values of State Secularism and Religious Neutrality and of Equality Between Women and Men, and Providing a Framework for Accommodation Requests.  Here is an excerpt from the Explanatory Notes summarizing the most important provisions of the bill:

Public bodies must, in the pursuit of their mission, remain neutral in religious matters and reflect the secular nature of the State. Accordingly, obligations are set out for personnel members of public bodies in the exercise of their functions, including a duty to remain neutral and exercise reserve in religious matters by, among other things, complying with the restriction on wearing religious objects that overtly indicate a religious affiliation. As well, personnel members of a public body must exercise their functions with their face uncovered, and persons to whom they provide services must also have their face uncovered when receiving such services.  The same rules apply to other persons, in particular to persons who exercise judicial functions, or adjudicative functions within the administrative branch, and to personnel members of the National Assembly.

Canadian Jewish Press reports on the concerns that various Jewish organizations have about the bill, including Section 38 that would allow the National Assembly to bar its members from wearing religious symbols.

Endorsing Agency For Two Conservative Chaplains Sues VA Over Pastoral Education Program Clashes

Fox News and Breibart News report  on a federal lawsuit filed last week by the endorsing agency for two military chaplains who were forced out of a Clinical Pastoral Education program run by the Department of Veterans Affairs in San Diego. The program is required in order to work as a chaplain in a VA hospital. The two chaplains, who were endorsed by the Conservative Baptist Association of America, continually clashed in class with the religiously liberal instructor, Nancy Dietsch.  The complaint (full text) in Conservative Baptist Association of America, Inc. v. Shenseki, (D DC, filed 11/8/2013), sets out examples of in-class exchanges between Dietsch and chaplains Steven Firtko and Dan Klender, among which are:

... Dietsch informed the class she believes God could be a man or woman. Chaplain Firtko recited the Lord’s Prayer, stating “Our Father who Art in Heaven.” In response, Ms. Dietsch angrily pounded her fist on the table and shouted: “Do not quote Scripture in this class!”....

When Chaplain Klender responded to a question during a group discussion regarding the Sandy Hook school shooting in Newtown CT, by stating he would tell a parent whose child was a victim by stating that “there is evil in the world,” Ms. Dietsch impugned his core faith beliefs stating they would not work in a clinical setting. In the presence of the other students she said: “You don’t actually believe that do you?”

Dietsch also told the class that The VA and she "do not allow Chaplains to pray 'in Jesus' name' in public ceremonies."

The lawsuit contends that the program's intolerance of mainstream Judeo-Christian beliefs violates RFRA, the 1st Amendment's Free Exercise and Free Speech clauses. It also contends that discrimination against Conservative Baptist Association chaplains was arbitrary and capricious.

In a statement to news media, the VA said that the two chaplains were "bullying other classmates and refusing to honor other faith groups." [Corrected to make clear that plaintiff is the endorsing agency, not the chaplains. Thanks to God and Country blog.]

Supreme Court Review Sought By Photographer Who Refused Employment For Same-Sex Wedding

A petition for certiorari (full text) was filed Friday with the U.S. Supreme Court in Elane Photography, LLC v. Willock. In the case, the New Mexico Supreme Court held that the state's Human Rights Act requires a commercial photography business to serve same-sex couples on the same basis as opposite-sex couples, and that the 1st Amendment does not require an exception for creative or expressive professions. (See prior posting.) The cert. petition frames the Question Presented as:

Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.

ADF issued a press release announcing the filing of the petition.

Recent Articles of Interest

From SSRN:

• Arshad Zaman, Maulana Sayyid Sulaiman Nadvi on Law, Politics, and Government, in Islam, (November 1, 2013).
• Scott D. Gerber, Law and the Lively Experiment in Colonial Rhode Island, (2 British Journal of American Legal Studies 453 (2013)).
• Zachary R. Calo, Review of 'The Tragedy of Religious Freedom' by Marc O. Degirolami, (Religion and Human Rights 8 (2013)).
• Nora Abdul Hak & Hanna Ambaras Khan, The Application of Sulh in Resolving Community Disputes, (Paper presentation at in 1st World Congress on Integration and Islamicisation of Acquired Human Knowledge (FWCII-2013)).
• Susannah William Pollvogt, United States v. Windsor and the Crisis in Equal Protection Jurisprudence, (November 6, 2013).
• David B. Cruz, 'Amorphous Federalism' and the Supreme Court's Marriage Cases, (Loyola Law Review, Supreme Court Issue, Forthcoming).

From SmartCILP:

• Shahla Haeri, No End in Sight: Politics, Paradox, and Gender Policies in Iran, 93 Boston University Law Review 1049-1062 (2013).
• Pnina Lahav, Israel's Rosit the Riveter: Between Secular Law and Jewish Law, 93 Boston University Law Review 1063-1083 (2013).

The Episcopal Church Sues Break-Away Illinois Diocese Over Property

The Episcopal Diocese of Chicago and The Episcopal Church last week filed a state court lawsuit claiming that property held by or for parishes and missions of the break-away Anglican Diocese of Quincy may only be used for the benefit of The Episcopal Church. (Press release). The complaint (full text) in The Episcopal Church v. Morales, (IL Cir Ct., filed 11/6/2013), seeks a declaratory judgment that the individual defendants do not hold any offices in the Episcopal Diocese of Quincy and that the parishes and missions are controlled by clergy and officers appointed or elected by The Episcopal Church.  In a case decided earlier this year, Diocese of Quincy v. The Episcopal Church, (IL Cir. Ct., Sept. 9, 2013), a different state trial court held that the break-away Anglican Diocese holds title to the bank account and administrative offices of the Diocese. The court held that the Dennis Canon on which The Episcopal Church in part relied relates to parish or mission properties and not to properties titled in the name of the Diocese. Anglican Curmudgeon blog discusses the background and strongly criticizes the Diocese of Chicago for the suit filed last week.

Court Rejects Challenges To New Jersey Ban On Conversion Therapy for Minors

In King v. Christie, (D NJ, Nov. 8, 2013), a New Jersey federal district court dismissed a challenge to the state's ban on sexual-orientation change therapy for minors.  It held that psychotherapy carried out through talk therapy is not speech under the 1st Amendment.  Instead it is conduct.  In so holding, the court in part pointed to the 9th Circuit's recent decision upholding a similar California statute. The court went on to reject claims that the New Jersey statute is overbroad and vague.  Finally the court rejected the claim that the New Jersey statute violates the Free Exercise clause by preventing mental health providers from exercising their sincerely held religious beliefs that changing same-sex attraction or behavior is possible. The court concluded that the statute is a neutral law of general applicability. The Newark Star Ledger reports on the decision.

Recent Prisoner Free Exercise Cases

In Whitaker v. Whitener, 2013 U.S. Dist. LEXIS 157692 (WD NC, Nov. 1, 2013), a North Carolina federal district court dismissed without prejudice a complaint by a Jewish prisoner that serving his kosher meals cold, or late, or delivering them along with non-kosher meals violates his free exercise rights.

In Barton v. Snaza, 2013 U.S. Dist. LEXIS 157934 (WD WA, Nov. 4,2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 157937, Oct. 4, 2013) and dismissed without prejudice prior to service for failure to state a claim an inmate's complaint that  two of his personal Asatru/Odinist books were confiscated by an unidentified person, preventing him from performing a ceremonial rite in his cell for three different holidays.

In Arrendondo v. Brooks, 2013 U.S. Dist. LEXIS 158406 (D NV, Nov. 5, 2013), a Nevada federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 158403, Sept. 23, 2013) and dismissed an inmate's complaint that several of his religious books were confiscated as contraband because he did not have his name written in them.

In White v. Van Leer, 2013 U.S. Dist. LEXIS 159186 (ED CA, Nov. 5, 2013), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that he was denied kosher meals in place of the vegetarian substitute meals served at breakfast and lunch to those receiving Halal diets.

In Medina v. Snyder, 2013 U.S. Dist. LEXIS 159225 (ED CA, Nov 5, 2013), a California federal magistrate judge dismissed,with leave to amend, an inmate's complaint that he was denied a kosher meal on three separate occasions.

In George v. City of New York, 2013 U.S. Dist. LEXIS 159434 (SD NY, Nov. 6, 2013), a New York federal district court dismissed a Muslim inmate's claim that a strip search of him violated his free exercise rights. His request to be searched in private was refused.

In West v. Grams, 2013 U.S. Dist. LEXIS 160003 (WD WI, Nov. 8, 2013), a Wisconsin federal magistrate judge dismissed complaints by a Muslim inmate that Muslim prayer services were not permitted to be held when a volunteer leader from outside the prison was unavailable. The court also dismissed his claim that Ramadan meals were served as late as possible in retaliation for his arguing about the proper time to serve these meals.

In McKenzie v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 159981 (WD MI, Nov. 8, 2013), a Michigan federal district court dismissed a suit brought by several Jewish prisoners complaining about a change in Department of Corrections policy that eliminated separate kosher meals and instead made vegan meals that meet kosher and halal standards available for religious diets.

In Arafat v. U.S. Department of Justice, 2013 U.S. Dist. LEXIS 160075 (D MN, Nov. 8, 2013), a Muslim inmate complained of a lack of a halal-certified diet at the county jail in which he was held while his federal criminal trial was under way.  A Minnesota federal district court dismissed most of his claims but allowed him to proceed with his claim for injunctive relief, subject to its being dismissed as moot as soon as his sentencing hearing was completed and he was transferred back to federal prison where a halal diet was available. UPDATE: The magistrate's recommendation in the case is at Wetsch v. U.S. Department of Justice, 2013 U.S. Dist. LEXIS 160407 (Aug.  22, 2013).

Federal Lawsuit Challenges Idaho's Refusal To Permit or Recognize Same-Sex Marriage

A suit was filed Friday in an Idaho federal district court challenging the constitutionality of Idaho's laws that exclude same-sex couples from marrying in the state, and refuse to recognize marriages of same-sex couples entered into lawfully elsewhere.  The complaint (full text) in Latta v. Otter, (D ID, filed 11/8/2013), claims that Idaho Const. art. III, § 28 and Idaho Code §§ 32-201 and 32-209 violate the due process and equal protection clauses of the 14th Amendment. The National Center for Lesbian Rights issued a press release on the case. [Thanks to Alliance Alert for the lead.]

7th Circuit In 2-1 Decision Grants Preliminary Injunction To For-Profit Corporations and Their Owners In Contraceptive Mandate Challenge

In Korte v. Sebelius, (7th Cir., Nov. 8, 2013), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision in a consolidated appeal of suits by two unrelated small businesses and their Catholic owners, held that a preliminary injunction should be granted barring enforcement of the Affordable Care Act contraceptive coverage mandate on religious freedom grounds.  The companies involved are Korte & Luitjohan Contractors, Inc., an Illinois construction company, and Grote Industries, Inc., an Indiana manufacturer of vehicle safety systems.

The majority, in a 64-page opinion, held that for-profit corporations are "persons" whose religious exercise is protected by the Religious Freedom Restoration Act, saying:

It’s common ground that nonprofit religious corporations exercise religion in the sense that their activities are religiously motivated. So unless there is something disabling about mixing profit-seeking and religious practice, it follows that a faith-based, for-profit corporation can claim free-exercise protection to the extent that an aspect of its conduct is religiously motivated.

The majority then concluded that the mandate imposes a substantial burden on the religious exercise of both the corporations and their individual owners and managers that is not justified by a compelling governmental interest and is not achieved by the least restrictive means.

Judge Rovner wrote a very interesting 89-page dissent. Early in her opinion, she sets out several hypotheticals that follow from the majority's decision, involving employers who object on religious grounds to paying for coverage for other kinds of medical treatment for their employees.  Later in her opinion, she discusses at length what she describes as "significant logical difficulties posed by attributing religious rights to secular corporations."  She says in part:

First, to the extent that a corporation’s religious principles and identity derive from its owners, what if the owners have diverse beliefs, diverse degrees of devotion, and diverse notions as to whether and how the corporation ought to reflect their religious beliefs?...

Second, suppose that the company’s ownership changes. What happens then to the beliefs we have attributed to the corporation based on its ownership?....

Third, are the religious beliefs of corporate owners solely determinative of the corporation’s religious principles? Suppose ... that a corporation’s owners have entirely entrusted the management of the corporation to its longtime CEO.... Are her beliefs attributable to the corporation?  Or suppose ... the focus of the corporation is on serving members of a particular religion-- selling kosher or halal food products, for example....  Can the corporation be said to hold the religious beliefs of its target market, even if its owners and managers do not?....

[I]f a corporation has free exercise rights because the Dictionary Act suggests it is among the "persons" to which RFRA grants the right to make such a claim... then why does a corporation of large, diverse, or even public ownership not have free exercise rights also? And how would the beliefs of a public corporation be determined—by a vote at the annual shareholders’ meeting, for example?

The 7th Circuit had previously granted an injunction pending appeal in the case. (See prior posting.)

EU Court of Justice Rules On When Homosexuals Qualify For Refugee Status

On Thursday, the Court of Justice of the European Union issued a preliminary ruling interpreting Council Directive 2004/83/EC on minimum standards for third-country nationals to qualify as refugees. The Directive defines a refugee, in part as a person who has a "well-founded fear of being persecuted for reasons of ... membership of a particular social group...." In X, Y, Z v. Minister voor Immigratie en Asiel, (EU Ct. Justice, Nov. 7, 2013), the court held that:

the existence of criminal laws ... which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group.

... the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment ... which is actually applied ... must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.

.... When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.

The Court also issued a press release on the decision. So did ORAM (the advocacy group for LGBTI refugees). It discusses at length the problems that European officials will face in accurately assessing the credibility of asylum claims based on sexual orientation. The Los Angeles Times reports on the decision, focusing on the persecution of gays and lesbians in Africa-- the home continent of the 3 refugees who were parties to the case decided by the court.

Tonight Is 75th Kristallnacht Anniversary; New Data On Antisemitism In Europe and U.S. Released

A statement (full text) issued yesterday by President Obama points out that tonight marks the 75th anniversary of Kristallnacht-- the violent Nazi-party inspired anti-Jewish pogroms carried out in 1938 in Germany and German -annexed territory in Austria and Czechoslovakia. Kristallnacht marked a turning point that led to ever-increasing anti-Jewish actions by the Nazi regime. Yesterday, the European Union Agency for Fundamental Rights released a new report titled Discrimination and Hate Crime Against Jews in EU Member States: Experiences and Perceptions of Antisemitism. Several related publications were also released.This is the first report to collect comparable current data across 8 EU countries-- Belgium, France, Germany, Hungary, Italy, Latvia, Sweden and the United Kingdom.  These countries are home to 90% of EU's Jewish population. Among the key findings were:

66% of respondents consider antisemitism to be a major problem in their countries, while 76% said the situation had become more acute over the last five years.

21% of all respondents have experienced an antisemitic incident or incidents involving verbal insult, harassment or a physical attack in the 12 months preceding the survey. 2% of respondents had been victims of an antisemitic physical attack over the previous year.

In related developments, the Jewish Museum Berlin hosted a conference last night and today titled Antisemitism in Europe Today: the Phenomena, the Conflicts. A Haaretz op-ed criticized organizers for scheduling the conference on the Jewish Sabbath, thereby effectively precluding participation by observant Jews.  And, according to JTA, earlier this week a German hotel, the Kristall Sauna Wellnesspark in Bad Klosterlausnitz, in the former eastern German state of Thuringen, apologized for the ad it had run promoting a "long, romantic Kristall-Nacht" on November 9.

In the United States, the ADL on Oct. 28 released its 2013 Survey About Attitudes Toward Jews In America. It concluded that 12% of Americans have deeply entrenched anti-Semitic attitudes, a 3% decline from the last poll in 2011.  Meanwhile, the New York Times reported earlier this week on the extensive anti-Semitic harassment of students in the New York State Pine Bush Central School District.

Jury Rejects Religious Harassment Charge By Former School Library Employee

The Roanoke Times reports that a Virginia federal court jury yesterday found for the defendant in Scott v. Montgomery County School Board, a religious discrimination and retaliation suit. (See prior related posting.) In the suit, Judith Scott, a fired school library assistant claimed that her supervisor Nina Donohoe  pressured her for more than a decade to join Christian prayer meetings and Bible study sessions, and that when she refused she was harassed and finally dismissed. Donohoe claimed that her differences with Scott were work-related. After the jurors returned their verdict, Judge James Turk told them: "I think that was the only verdict you could return in this case. It was the principals who recommended [Scott's] contract not be renewed. I think we had two nice ladies in this case who just couldn’t get along. One of them had to go."

Minnesota High Court Upholds Clergy Sexual Conduct Statute Against Establishment Clause Challenges

In State of Minnesota v. Wenthe, (MN Sup. Ct., Nov. 6, 2013), the Minnesota Supreme Court, in a 4-1 decision, upheld the state's clergy-sexual-conduct statute against both facial and an as-applied Establishment Clause challenges.  The court held that Minn. Stat. § 609.344 which criminalizes sexual penetration by a member of the clergy where the victim is receiving religious or spiritual advice does not violate the Establishment Clause merely because it directly targets clergy or because it requires an inquiry into whether the victim was seeking religious or spiritual advice. The court also concluded that as applied in this case, the evidence presented did not raise an excessive entanglement concern concern. Defendant, a Roman Catholic priest who was charged with having sexual relations with a woman he was counseling, was not likely to be convicted by the jury merely because he violated Church doctrine. AP reports on the decision.

Judge's Religious Comments Lead To Remand For Resentencing

In Tores v. State of Florida, (FL App., Nov.6, 2013), a Florida state appellate court reversed a 30-year sentence imposed on defendant for sexual battery and remanded for sentencing by a different judge because of religious comments made in imposing the original sentence.  In imposing the maximum sentence (when the minimum Guidelines sentence was 9 years, 4 months), the sentencing judge condemned defendant for his consensual dating relationship with the victim while defendant was married to someone else, and then said:

Just because your wife is in another country doesn’t mean you ought to be going out with other women. You’re a good Catholic fellow as I am. That’s not the way Catholic people - - that’s not the way anybody with morals should do anything.

The Florida Times-Union reports on the decision.

European Court Says Greek Law Limiting Civil Unions To Heterosexual Couples Violates ECHR

In Vallianatos and Others v. Greece, (ECHR, Nov. 7, 2013), the European Court of Human Rights (Grand Chamber) held, by a vote of 16-1, that a Greek civil union law which is limited to heterosexual couples violates The European Convention on Human Rights. The court concluded that the law is inconsistent with Article 8, violating the right to respect for private and family life of same-sex couples, and amounts to unjustified discrimination between different-sex and same-sex couples in violation of Article 14. The Court issued a press release summarizing the decision.  [Thanks to Paul de Mello, Jr. for the lead.]

EEOC Complaint Filed By Muslims Fired For Taking Unauthorized Prayer Break

As reported by the Cincinnati Enquirer, the Cincinnati (OH) chapter of the Council on American-Islamic Relations yesterday filed a complaint with the EEOC on behalf of 24 former Somali Muslim employees of the DHL Global Mail facility in Hebron, Kentucky. According to CAIR's press release, the company eliminated the flexible evening break time that the employees had been using for evening (Maghrib) prayers. The company's new supervisor fired the employees when they took their break to pray at an earlier time than authorized.

Former Faculty Members' Suit Against Religious College Dismissed On Establishment Clause Grounds

In Winberry v. Louisiana College, (LA App., Nov. 6, 2013), four former faculty members of of a Baptist liberal arts college sued claiming defamation, violation of academic freedom and violation of a settlement of a prior lawsuit. All four taught a required religious class, and the college claimed that they were teaching errant views.  The Louisiana appellate court affirmed the trial court's holding that the ministerial exception does not apply because Louisiana College is not a church. However it also affirmed the trial court's dismissal of the suit on Establishment Clause grounds;

The trial court was correct in holding that the dispute between Plaintiffs and Defendants centers on the nature of Baptist theology and church governance over how theology is taught at Louisiana College and would, thus, require the court to impermissibly entangle itself in deciding ecclesiastical matters.

Senate Passes ENDA; Fate In House Uncertain

As reported by the Huffington Post, the U.S. Senate yesterday passed S.815, the Employment Non-Discrimination Act by a vote of 64-32. The bill prohibits employment discrimination on the basis of sexual orientation or gender identity.  The version passed is that reflected in Senate Amendment 2012 (full text). The vote comes after attempts since 1994 to pass the legislation. The bill's fate in the House though is uncertain, with aides to the House Speaker saying it is unlikely to come up for a vote.  As passed by the Senate, the bill, Sec. 6(a), contains a familiar exemption for religious employers:

This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964 ... pursuant to section 702(a) or 703(e)(2) of such Act.

Section 702(a) exempts any" religious corporation, association, educational institution, or society.... " Section 703(e)(2) exempts any school, college, university, or other educational institution or institution of learning [which] is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion."

At the last minute, the Senate also added a provision to the bill (Sec. 6(b)) to protect religious employers from adverse governmental action in connection with exercise of the exemption:

A religious employer's exemption under this section shall not result in any action by a Federal agency, or any State or local agency that receives Federal funding or financial assistance, to penalize or withhold licenses, permits, certifications, accreditation, contracts, grants, guarantees, tax-exempt status, or any benefits or exemptions from that employer, or to prohibit the employer's participation in programs or activities sponsored by that Federal, State, or local agency. Nothing in this subsection shall be construed to invalidate any other Federal, State, or local law (including a regulation) that otherwise applies to a religious employer exempt under this section.

The Senate, by a vote of 43-55 rejected Senate Amendment 2013 which would have broadened the definition of exempt religious employers.

Reacting to the bill, the American Family Association complained:

ENDA would force religious business owners and workplaces such as Christian bookstores, religious publishing houses, pre-schools and religious television and radio stations to accept as normal any employee who has had a sex-change surgery, is considering a change, or just thinks they are the opposite sex of what they really are.

Michelle Obama Hosts White House Diwali Celebration

The White House reports that on Tuesday, First Lady Michelle Obama welcomed guests to the East Room of the White House for a Diwali celebration. Saying that the holiday had been celebrated at the White House every year since President Obama took office, the First Lady added:

When we say that we want to make the White House the “people’s house,” we mean all people. We mean that we want to honor and embrace all of the many cultures and faith traditions that make us who we are as Americans. And Diwali is very much one of those traditions.

Huffington Post has more excerpts from the Mrs. Obama's remarks. (See prior related posting.)

Britain Looking At Issuing Shariah-Compliant Bonds; London Stock Exchange Islamic Index

In a press release last week (Oct. 29), The Prime Minister's Office in Britain announced plans for a new Islamic index on the London Stock Exchange, as well as hopes for Britain to become the first country outside of the Islamic world to issue an Islamic bond.  In an Oct.29 speech (full text) to the World Islamic Economic Forum held in London, Prime Minister David Cameron said in part:

Already London is the biggest centre for Islamic finance outside the Islamic world.  But today our ambition is to go further still.  Because I don’t just want London to be a great capital of Islamic finance in the Western world.  I want London to stand alongside Dubai and Kuala Lumpur as one of the great capitals of Islamic finance anywhere in the world.

[Thanks to Alliance Alert for the lead]

Cert. Petition Filed By Corporations In D.C. Circuit Contraceptive Mandate Case

A petition for certiorari (full text) was filed yesterday in Gilardi v. U.S. Department of Health and Human Services, (filed 11/6/2013).  In the case, the D.C. Circuit Court of Appeals held that the Catholic owners of a for-profit small business were likely to succeed on the merits of a RFRA challenge to the Affordable Care Act contraceptive coverage mandate, but rejected the claims of the business corporations. (See prior posting.) The petition, filed on behalf of the corporations, urges the Court to find that secular business corporations can assert their own free exercise rights.  The American Center for Law & Justice issued a press release announcing the filing of the cert. petition.

UPS Settles Religious Accommodation Charges Brought By EEOC

The EEOC announced on Monday that United Parcel Service has agreed to pay damages of $70,000 in settlement of a lawsuit charging the company with refusing to provide a Jehovah's Witness employee with a schedule accommodation so he could attend an annual religious service. (See prior posting.) The employee was terminated from his job a few days after his request was denied, and was placed on a company-wide"do not re-hire" list.  Under the settlement with the EEOC, UPS is also enjoined from engaging in future religious discrimination or retaliating against employees for opposing such discrimination.  It will also post its religious accommodation policy and conduct anti-discrimination training.

Town of Greece Case Argued Before Supreme Court

The U.S. Supreme Court heard oral arguments today in Town of Greece v. Galloway.  At issue is the constitutionality of opening city council meetings with sectarian prayers. The full transcript of the oral arguments is now available. SCOTUSblog has a recap of the oral arguments.  ABA Preview has a detailed analysis of the case.

Contraceptive Mandate Challenge Transferred From D.C. to Michigan Federal Court

In M&N Plastics, Inc. v. Sebelius, (D DC, Nov. 5, 2013), the federal district court for the District of Columbia granted the government's motion to transfer a suit by a Michigan small business and its owners challenging the contraceptive coverage mandate to federal court in the plaintiff's home district-- the Eastern District of Michigan. The government argued that plaintiffs' decision to file in D.C. was motivated by a desire to take advantage of favorable precedent in that district. The 6th Circuit (which includes Michigan) has unfavorable precedent for plaintiffs. (See prior posting.)

Paper Reports On Jews In State Prisons

The Forward yesterday carried a lengthy report on how Jews in state prisons deal with anti-Semitism, finding that "In some states Jewish prisoners face as much or more anti-Semitism from staff as from fellow inmates."  The report also quotes an expert who concludes:  "Those who are the most out front about being Jewish get the least hassle [from fellow-inmates]. We have inmates wearing yarmulkes and tzitzit in the most dangerous prisons in the country, and no one touches them." The report goes on:

Perhaps the most noticeably different thing about Jewish prisoners is their access to kosher food, which is almost universally considered superior to regular prison fare.... “You wouldn’t believe the politics around the kosher food on the yard,” said J.D. Rollins, a since-freed Muslim prisoner who befriended numerous Jews while behind bars in California. Inmates and staff both resented the special treatment they thought the diet represented. Kosher food would often be tampered with or stolen by inmates in the kitchens, both to punish those on the diet and to barter the valuable goods.

...[K]osher food is so desirable that five-sixths of prisoners on the diet are non-Jews. They can do this by exploiting the vagueness of the law, which grants the right to a religious diet to those with a loosely-defined “sincerely held” religious belief.

Illinois Legislature Gives Final Approval To Same-Sex Marriages

As reported by the Chicago Sun-Times and the New York Times, the Illinois General Assembly yesterday gave final approval to SB10 legalizing same-sex marriage in the state.  The state Senate had originally passed the bill in February, but the crucial House vote did not come until yesterday, delayed by opposition form black clergy and the Catholic Archdiocese of Chicago.  The House vote, after  adding one amendment to the Senate bill, was 61-54 with 2 abstentions. The Senate then quickly approved the bill as amended by a vote of 32-21. Gov. Pat Quinn has said he will sign the bill.

The bill contains protections for objecting clergy and religious institutions:

Nothing in this Act shall interfere with or regulate the religious practice of any religious denomination or Indian Nation....

Nothing in this Act shall be construed to require any religious denomination or Indian Nation ... or any minister, clergy, or officiant acting as a representative of a religious denomination or Indian Nation ... to solemnize any marriage. Instead [it is] ... free to choose which marriages it  will solemnize. Notwithstanding any other law to the contrary, a refusal by a religious denomination or Indian Nation..., or any minister, clergy, or officiant ... to solemnize any marriage under this Act shall not create or be the basis for any civil, administrative, or criminal penalty, claim, or cause of action.

No church, mosque, synagogue, temple, nondenominational ministry, interdenominational or ecumenical organization, mission organization, or other organization whose principal purpose is the study, practice, or advancement of religion is required to provide religious facilities for the solemnization ceremony or celebration associated with the solemnization ceremony of a marriage if the ... ceremony or celebration ... is in violation of its religious beliefs. [Such] entity ... shall be immune from any civil, administrative, criminal penalty, claim, or cause of action based on its refusal to provide religious facilities .... As used in this subsection..., "religious facilities" means sanctuaries, parish halls, fellowship halls, and similar facilities. "Religious facilities" does not include facilities such as businesses, health care facilities, educational facilities, or social service agencies.

Town Council Prayer Case To Be Argued In Supreme Court Tomorrow

Tomorrow the U.S. Supreme Court will hear oral arguments in a major church-state case-- Town of Greece v. Galloway.  At issue is the practice in the town of Greece, New York of opening its Town Board meetings with a prayer, most of which have been overtly Christian. In the case, the 2nd Circuit held that the town's prayer policy violates the Establishment Clause because "an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity." (See prior posting.) The briefs in the case, including the numerous amicus briefs that have been filed, are available from ScotusBlog, and Lyle Denniston has an Argument Preview.

Another Non-Profit Contraceptive Coverage Mandate Challenge

Yesterday saw another lawsuit challenging the Affordable Care Act contraceptive coverage mandate.  MLive reports that Right to Life of Michigan filed suit in federal district court in Michigan on Nov. 4. Its complaint alleges in part:

Plaintiff employs 33 full-time employees and 10 part-time employees, and is forced under the mandate to conduct business in a manner that violates their religious faith by providing and funding abortifacient drugs and devices, which violates deeply held religious beliefs and the sole reason they work for [Right to Life].

Suit Challenges New Jersey Ban On Sexual Orientation Conversion Therapy

AP reports on a federal lawsuit filed last Friday challenging New Jersey's ban on sexual orientation conversion therapy for minors. Alleging 1st and 14th Amendment violations, the suit, filed by parents of a 15-year old boy, claims that the ban:

den[ies] minors the opportunity to pursue a particular course of action that can help them address the conflicts between their religious and moral values and same-sex attractions, behaviors or identity.

A similar challenge was filed in August by different plaintiffs. (See prior posting.)

UPDATE: Here is the full text of the complaint in Doe v. Christie, (D NJ, filed 11/1/2013).

California City Sued Over Sectarian Prayers and City Chaplain

The Freedom From Religion Foundation has announced that it filed a state court lawsuit last week against the city of Pismo Beach, California challenging on state constitutional grounds sectarian prayers at city council meetings and the appointment of a City Chaplain. The complaint (full text) in Freedom From Religion Foundation v. City of Pismo Beach, (CA Super. Ct., filed 11/1/2013) alleges that over a nearly 5-year period, all but one of the 126 prayers were addressed to the Christian God, with 112 of those prayers being delivered by the city chaplain, a Pentecostal clergyman. The complaint continues:

The prayers advance and proselytize for Christianity. They distort and fabricate American history to further the appearance that our government endorses and supports Christianity, and they disparage non-Christians by claiming that not living in accordance with the Christian god’s rule of law is sinful and wrong.

... The City established a Christian Chaplaincy and appointed Defendant Paul Jones ... to that position eight years ago.... This chaplaincy is a government office with solely religious functions, and this City Chaplain receives benefits at public expense...

Irish Constitutional Convention Recommends Replacing Blasphemy Offense With Ban On Inciting Religious Hatred

Ireland is in the midst of an unusual constitution revision process.  A Convention on the Constitution made up of 66 randomly selected citizens who are broadly representative of Irish society, and 33 parliamentarians nominated by their respective political parties, are making recommendations to the Oireachtas for amendments that will ultimately be put to the people for a vote. According to a news release by the Convention, on Sunday the Convention voted 53% to 38% to replace the current constitutional provision on blasphemy with a general provision banning incitement to religious hatred. Irish Times reports on the vote. [Thanks to Volokh Conspiracy via Steven H. Sholk for the lead.]

New NYC Mayor-- Whoever Wins-- Will Be More Accommodating To Religion

In a report yesterday on the upcoming mayoral election, the New York Times says that either of the top two candidates-- Bill de Blasio or Joseph Lhota-- will be more accommodating of religious practices than Mayor Bloomberg has been:

They [both] say they would accommodate two of the most important Muslim holy days [on school calendars], allow church services on school property, and work with Jewish leaders to ease the city’s supervision of circumcision rituals.

New York Court Confirms Part of Beth Din's Rulings In Dispute Over Kosher Certification In Crown Heights

Matter of Va'Ad Hakohol Deschunas Crown Heights v. Va'Ad Hakashrus of Crown Heights Corp., (Kings Co. NY Sup. Ct., Oct. 17, 2013), is the latest installment in a complicated and long-running dispute that began in 2006 between three local Jewish organizations in the Crown Heights section of Brooklyn over control of the kosher certification process and the funds generated from it.  The feuding organizations are the Crown Heights Beth Din that serves as religious consultant that certifies food as kosher; Hakashrus that provides butchers and inspectors to implement kosher certification; and Hakohol which is not part of the certification process.

Four lawsuits filed in the matter were eventually referred for voluntary arbitration to a 5-member panel of rabbinical judges (the Rosenberg Beth Din) which in 2010 issued four rulings, one of which ordered an election to fill a vacancy on the 3-person Crown Heights Beth Din.  In 2011, the Rosenberg Beth Din issued two supplemental rulings, one of which rejected challenges to the qualifications of Rabbi Joseph Shaya Braun who was elected to the Crown Heights Beth Din in the ordered election.

The New York trial court was then petitioned to confirm the arbitration awards of the Rosenberg Beth Din.  In June 2012 it refused to do so, but subsequently allowed re-argument on the issue.  In this decision it confirmed parts of the awards entered by the Rosenberg Beth Din, including its holding that Rabbi Braun was properly elected to the Crown Heights Beth Din, saying:

Turning to the Jan. 3, 2011 supplemental award, the Court finds that its unambiguous pronouncement that Rabbi Braun was elected in accordance with religious law is adequate for the Court to confirm this award. "The path of analysis, proof and persuasion by which an arbitrator reaches a conclusion is beyond judicial scrutiny".... The Rosenberg Beth Din's endorsement of Rabbi Braun's credentials to qualify as a member of Crown Heights Beth Din, therefore, is controlling. The Court is proscribed from evaluating Rabbi Braun's credentials, as doing so would infringe "upon a religious community's independence from secular control or manipulation"

The New York court however remanded to the Rosenberg Beth Din the question of control, operation and ownership of the assets of Hakashrus.

Recent Articles of Interest

From SSRN:

• Juan Carlos Riofrio Martinez Villalba, Lecturas Jurídicas De La Obra De Santo Tomás De Aquino (Legal Interpretations of the Works of St. Thomas Aquinas), Díkaion, XXVII, v. 22, n. 1, pp.55-81 (2013).
• Michal Gilad, In God's Shadow: Unveiling the Hidden World of Domestic Violence Victims in Religious Communities, (Rutgers Journal of Law & Public Policy (forthcoming 2014).
• Lyman Johnson, Michael Naughton, & William Stanley Bojan, Jr., Rethinking How Business Purpose is Taught in Catholic Business Education, (October 31, 2013).
• Charles J. Reid, The Priesthood and the Sacrament of Marriage, (Priesthood and the Seven Sacraments, E.J. Brill & Gregory Peters, ed., Forthcoming).
• Todd J. Schmid, The Real Shariah Risk: Why the United States Cannot Afford to Miss the Islamic Finance Moment, (University of Illinois Law Review, Vol. 2013, No. 3, 2013).
• Davi S. Miller, Reforming the Taxation of Exempt Organizations and Their Patrons, (October 21, 2013).
• Máiréad Enright, The Beginning of the Sharpness: Loyalty, Citizenship and Muslim Divorce Practice, (International Journal of Law in Context, 9,3 pp. 1–23 (2013)).

From SmartCILP:

• Gabriel O. Aitsebaomo, Challenges to Federal Income Tax Exemption of the Clergy and Government Support of Sectarian Schools Through Tax Credits Device and the Unresolved Questions after Arizona v. Winn: Is the U.S. Supreme Court Standing in the Way of Taxpayer Standing to Seek Meritorious Redress?, 28 Akron Tax Journal 1-39 (2013).
• Dallas Dean, A Little Rule That Goes a Long Way: A Simplified Rule Enforcing the 501(c)(3) Ban on Church Campaign Intervention, [Abstract], 28 Journal of Law and Politics 307-333 (2013).

President Sends Diwali Greetings

Today was the festival of Diwali. On Friday, the White House released a statement (full text) from President Obama sending good wishes to those celebrating the holiday, saying in part:

For the Hindus, Jains, Sikhs and Buddhists celebrating Diwali this weekend, the Festival of Lights reaffirms the things in life that matter most.  Dancing, celebration, and good food remind us that life’s greatest joys are the simple pleasures that come from spending time with people we love.  Contemplation and prayer remind us that that people of all faiths have an obligation to perform seva, or service to others.  And the flame of the diya, or lamp, reminds us that light will ultimately triumph over darkness.  Here in the United States, Diwali also reminds us that our nation is home to many faiths and traditions, and that our diversity makes us stronger, which is why I’m proud that this year Democrats and Republicans in Congress joined together for the first-ever celebration of Diwali on Capitol Hill....

Recent Prisoner Free Exercise Cases

In Fulbright v. Jones, 2013 U.S. Dist. LEXIS 154414 (WD OK, Aug. 29, 2013), an Oklahoma federal magistrate judge, recommending rejection of a contempt petition, found that authorities had reasonably complied with a previous injunction requiring them to provide a Jewish inmate with a kosher diet.

In Perrilla v. Fischer, 2013 U.S. Dist. LEXIS 154449 (WD NY, Oct. 24, 2013), a New York federal district court dismissed, with leave to amend, a Muslim inmate's complaint that he was not permitted to attend congregate religious services while in the Special Housing Unit, and that he was denied or given ill-prepared Halal meals during Ramadan.

In McDaniel v. Fizer, 2013 U.S. Dist. LEXIS 154965 (D AZ, Oct. 29, 2013), an Arizona federal district court denied without prejudice a Muslim inmate's petition for a preliminary injunction to require a change in his religious diet so it will also satisfy his health needs (by substituting other food for raw cabbage).

In Calhoun-El v. Stouffer, 2013 U.S. Dist. LEXIS 155108 (D MD, Oct, 28, 2013), a Maryland federal district court dismissed complaints by an inmate who is a member of the Moorish Science Temple of America that his headdress was confiscated on four occasions, that his ability to participate in the Ramadan fast was interfered with, and that his request to celebrate his religious holiday was denied.

In Blackwell v. Green, 2013 U.S. Dist. LEXIS 155181 (D MD, Oct. 20, 2013), a Maryland federal district court dismissed a Muslim inmate's complaints regarding shower schedules and medication and ice distribution that allegedly interfered with his obligations surrounding Friday prayer and Ramadan. It also dismissed his claim that he was harassed by someone writing "Jesus" on his cell door.

In Redd v. Lutgen, 2013 U.S. Dist. LEXIS 155252 (ND IA, Oct. 28, 2013), an Iowa federal magistrate judge recommended dismissing a Muslim inmate's claim that his religious exercise was substantially burdened when he was required to sign a Ramadan Agreement as a condition of participating in the Eid feast.

In Nosair v. Federal Bureau of Prisons, 2013 U.S. Dist. LEXIS 155309 (SD IL, Oct, 30, 2013), an Illinois federal district court permitted a Sunni Muslim inmate of Arab descent to proceed with his equal protection claim that he was confined in restrictive conditions because of his race and religion. However his claim of discriminatory treatment of certain Muslim inmates in halfway house placement was dismissed.

In Sleighter v. County of Kent, 2013 U.S. Dist. LEXIS 156113 (WD MI, Oct. 31, 2013), a Michigan federal district court permitted a Jewish inmate to proceed against the county and its sheriff on claims that his need for a kosher diet was not adequately accommodated and that the jail favored Christianity over other religions by scheduling Christian religious services in the common living areas, setting aside a section of the called the "God Pod," encouraging conversion to Christianity, and not accommodating other religions.

In Rivera v. Byars, 2013 U.S. Dist. LEXIS 156681 (D SC, Oct. 31, 2013), a South Carolina federal district court rejected a magistrate's recommendation and held that a former inmate of the Rastafarian faith can proceed on his free exercise claim for damages alleging that he was not provided an adequate vegetarian diet consistent with his religious faith.

Suit In Australia Invokes Racial Discrimination Act Against Boycott of Israeli Academics

In Australia, Shurat HaDin - Israel Law Center last month filed a lawsuit under  Australia’s 1975 Racial Discrimination Act against Jake Lynch, director of the Center for Peace and Conflict Studies at the University of Sydney.  As reported by Haaretz yesterday, the suit claims that Lynch's invocation of the anti-Israeli "Boycott/ Divestment/ Sanctions" movement in refusing to sponsor Hebrew University academic Dan Avnon for a fellowship in Australia violates the statute's ban on national origin discrimination.  This is the first time that the anti-discrimination statute has been invoked against the BDS Movement, which includes boycotts of Israeli academics in protest of Israeli policy regarding Palestinians in the West Bank and Gaza. The suit was filed after mediation at the Australian Human Rights Commission failed several month ago.

Defense Secretary Chastises State National Guards That Are Refusing To Issue ID To Same-Sex Spouses

According to a report this week from American Forces Defense Service, nine states are defying a Department of Defense directive instructing National Guard facilities to issue new ID cards to same-sex spouses.  The new IDs will allow them to obtain spousal and family military benefits in the wake of the U.S. Supreme Court's decision striking down Sec. 3 of the Defense of Marriage Act.  Indiana, Georgia, Florida, Mississippi, Louisiana, Oklahoma, South Carolina, Texas and West Virginia, however, are requiring their National Guard members to go to a federal military base if they want to obtain the new ID. In a speech (full text) to an Anti-Defamation League Dinner on Thursday, Defense Secretary Chuck Hagel said in part:

... [A]ll spouses of service members are entitled to DoD ID cards, and the benefits that come with them.  But several states today are refusing to issue these IDs to same-sex spouses at National Guard facilities.  Not only does this violate the states’ obligations under federal law, but their actions have created hardship and inequality by forcing couples to travel long distances to federal military bases to obtain the ID cards they’re entitled to.

This is wrong.  It causes division among our ranks, and it furthers prejudice, which DoD has fought to extinguish, as has the ADL.

Today, I directed the Chief of the National Guard Bureau, General Frank Grass, to take immediate action to remedy this situation.  At my direction, he will meet with the Adjutants General from the states where these ID cards are being declined and denied.  The Adjutants General will be expected to comply with both lawful direction and DoD policy, in line with the practices of 45 other states and jurisdictions.

Objections to .HALAL and .ISLAM Top Level Domains Rejected

As previously reported, in June 2012 the Internet Corporation for Assigned Names and Numbers (ICANN) published a list of proposed new generic Top-Level Domain (gTLD) names for which various applicants are seeking approval. Some of the proposed new Internet addresses carry religious connotations. ICANN has in place a complicated process for objecting to a proposed gTLD.  One basis for objection is "substantial opposition to the gTLD ... from a significant portion of the community that the gTLD string targets." On October 24, two separate opinions were handed down by the International Center of Expertise of the International Chamber of Commerce, the organization designated to adjudicate community objections.  The decisions upheld the proposed .HALAL top level domain (CASE No. EXP/427/ICANN/44, full text of opinion), and the proposed .ISLAM top level domain (CASE No. EXP/430/ICANN/47, full text of opinion). In both cases the objector was the United Arab Emirates Telecommunications Regulatory Authority and the applicant for the gTLD was a Turkish company.

Ukrainian Appeals Court Says Kiev Synagogue Can Keep Loaned Torah Scrolls

JTA earlier this week reported on a mid-October ruling by the Kiev Economic Court of Appeals in the Ukraine that allows the city's Central Synagogue to retain 18 Torah scrolls that the State Archives Committee wanted returned for inspection, fearing they may have been damaged.  The Committee first requested return of the scrolls in 2007 (Jerusalem Post). The scrolls were seized by the Soviets in the 1920's, but after Ukrainian independence in 1991-- with no restitution law in place-- some scrolls were loaned back to synagogues under unclear arrangements with the government.  The particular scrolls at issue here were loaned back to Central Synagogue in 1995.

D.C. Circuit: Contraceptive Mandate Imposes Substantial Burden On Small Business Owners' Free Exercise

In an important development today, the D.C. Circuit Court of Appeals, in a 2-1 decision producing three separate opinions, held that the Catholic owners of a for-profit small business were likely to succeed on the merits of a RFRA challenge to the Affordable Care Act. The appeals court reversed the district court's denial of a preliminary injunction, and remanded the case for the district court to make findings about the other preliminary injunction factors. In Gilardi v. U.S. Department of Health and Human Services, (DC Cir., Nov. 1, 2013), two brothers, Francis and Philip Gilardi, owners of Freshway Foods and Freshway Logistics, both Ohio corporations, claim that their free exercise rights, and those of their businesses, are burdened by the requirement that they furnish their employees health insurance covering contraception, sterilization and abortion.

The court's opinion written by Judge Brown held that secular corporations do not enjoy free exercise rights:

When it comes to corporate entities, only religious organizations are accorded the protections of the Clause. And we decline to give credence to the notion that the for-profit/non-profit distinction is dispositive, as that, too, is absent from the Clause’s history. Fortunately, we need not opine here on what a “religious organization” is, as the Freshway companies have conceded they do not meet that criterion.

The court also rejected the claim that the corporations may assert their owners' free exercise rights:

In [EEOC v. Townley Engineering & Manufacturing Co.] , the Ninth Circuit concluded— without much in the way of legal substantiation—that the corporation was “merely the instrument through and by which [the owners] express[ed] their religious beliefs.”... 

Admittedly, there is a certain theological congruence to Townley’s  characterization. The Bible says “faith without works is dead.” James 2:26.... As amici point out, not only are Catholic employers morally responsible for the management of their companies, “instructing or encouraging someone else to commit a wrongful act is itself a grave moral wrong—i.e., ‘scandal’—under Catholic doctrine.” ... When even attenuated participation may be construed as a sin, ... it is not for courts to decide that the corporate veil severs the owner’s moral responsibility. But dogma does not dictate justiciability....

Judge Edwards, while dissenting as to other parts of the decision, joined in the portions of Judge Brown's opinion rejecting the corporate claims.  Judge Randolph did not join in this part of Judge Brown's opinion, believing that the court need not reach this issue.

Judge Brown went on, in a section of her opinion joined by all three judges, to hold that the individual owners of the business have standing to assert their claim under RFRA:

If the companies have no claim to enforce—and as nonreligious corporations, they cannot engage in religious exercise—we are left with the obvious conclusion: the right belongs to the Gilardis, existing independently of any right of the Freshway companies. Thus, the Gilardis’ injury—which arises therefrom—is “separate and distinct,” providing us with an exception to the shareholder-standing rule.

In his separate concurring opinion, Judge Randolph added another reason that the Gilardi brothers have standing.  The corporations had elected pass-through treatment under Subchapter S for federal tax purposes.  This means that the tax penalties will directly affect the shareholders' individual tax returns.

Then, in a portion of the opinion joined by Judge Randolph, Judge Brown concluded that the contraceptive coverage mandate imposes a "substantial burden" on the Gilardis free exercise rights, so that strict scrutiny is triggered.  She emphasized that government's arguments that no substantial burden was present turned on the claim that the mandate impacted the corporations, not the individual shareholders. She rejected this, arguing:

If the Gilardis had run their businesses as sole proprietorships, they would presumably have a viable RFRA claim under the government’s theory..... [W]e do not believe Congress intended important statutory rights to turn on the manner in which an individual operates his businesses.

The opinion then concluded that the strict scrutiny standard had not been met, and that there are less restrictive means to achieve the government's interests:

The government cites several concerns to bolster its claim that the contraceptive mandate serves a compelling interest (or interests), but its recitation is sketchy and highly abstract.....  [T]he government does little to demonstrate a nexus between this array of issues and the mandate.

Judge Edwards, in his separate opinion, dissented from the granting of a preliminary injunction because, in his view, the claim that the mandate imposes a "substantial burden" on the Gilardis "is specious." He argued:

The Supreme Court has never applied the Free Exercise Clause to find a substantial burden on a plaintiff’s religious exercise where the plaintiff is not himself required to take or forgo action that violates his religious beliefs, but is merely required to take action that might enable other people to do things that are at odds with the plaintiff’s religious beliefs....

Just as the Government does not directly encourage religion when it provides vouchers that recipients may choose to spend on religious schools, the Gilardis do not directly encourage the use of contraception when they provide insurance coverage that recipients may choose to spend on contraceptives.

He went on to argue that even if the mandate does impose a substantial burden, the government has shown that it is the least restrictive means of furthering a compelling interest. AP reports on the decision. This case has been seen by the Justice Department as the test case for many pending in the D.C. circuit. (See prior posting.) [Thanks to Luke Goodrich and Doug Velardo for the lead.] 

UPDATE: In a press release issued shortly after the decision was handed down, American Center for Law & Justice announced that the corporate entities will petition  the U.S. Supreme Court to grant certiorari on the issue of their separate free exercise rights.

USCIRF Urges Obama To Press Iraqi Prime Minister On Religious Freedom

President Obama meets today in Washington with Iraqi Prime Minister Nuri al-Maliki. (State Department press briefing.) The U.S. Commission on International Religious Freedom yesterday released a letter (full text) that it has sent to President Obama urging him to use the occasion to urge Maliki to do more to protect human rights and religious freedom. The letter says in part:

Regrettably, the government of Iraq has been unable to stop sectarian attacks from occurring and often lacks the will to investigate attacks and bring perpetrators to justice. This has created a climate of impunity and a perpetual sense of fear for all religious communities, particularly the smallest ones. The actions of Prime Minister al-Maliki’s government have also exacerbated the feelings of exclusion and discontent among the country’s Sunni population through political marginalization and prosecutions of Sunni leaders.  In addition, the dispute between the central government and Kurdish parties over territory in the north has led to human rights abuses, particularly against the smallest minorities in those areas.

Religious Remarks of Ted Cruz's Father Are Scrutinized

A Mother Jones article yesterday explores at length controversial religious and political statements made by Rafael Cruz, father of Texas' U.S. Senator Ted Cruz. The article argues that the father's remarks are relevant to Ted Cruz's political positions because the Senator brings his father along at campaign stops, refers often to his father, and sometimes deploys his father as a surrogate for campaign events.  In April Rafael Cruz insisted to a Tea Party group that the United States is a Christian nation, and insisted that the Declaration of Independence and Constitution are a "divine revelation from God." In an August 2012 sermon at an Irving, Texas megachurch, the elder Cruz embraced Christian Dominionism and end-of-time transfer of wealth.

New Contraceptive Coverage Suit Stems From Employee Frustration With Obamacare Website

New twists never seem to end in lawsuits challenging the Affordable Care Act contraceptive coverage mandate. The Thomas More Law Center announced that problems with the Healthcare.gov website led to events that caused it to file suit on Wednesday in D.C. federal district court on behalf of an Ohio-based small business, Electrolock, and its Catholic owners, the Williams family:

The Williams Family, who are devout Catholics, object to the HHS mandate requirement that they provide insurance for their employees covering abortifacients, contraception and sterilization....  [I]n an effort to avoid compromising their religious beliefs... the Williams Family initially paid each of their 43 employees several thousand dollars so the employees could purchase their own health insurance through the government Exchanges.

When employees began to have problems with the Exchange website, the Williams Family had to respond to the complaints and the serious concerns of their employees who were facing loss of health care, frustration with the flawed government website, and the decision to look for other employment that did provide healthcare.... 

In a final attempt to provide for their employees in good conscience, the Williams Family has organized a self-insured employee health plan which they are seeking to implement. However, since the plan excludes abortion, sterilization, contraception, abortifacients and related education, the Williams Family requires an injunction from the court in order to implement the plan without penalties, which would exceed $1.5 million dollars per year.