Two Important Decisions Handed Down On Contraceptive Coverage Accommodation For Religious Non-Profits

District court decisions continue to be handed down at a rapid pace in challenges by religious non-profits to the final Affordable Care Act contraceptive coverage mandate rules. Those rules (see prior posting) provide an accommodation for religious non-profits under which insurers or third party administrators will offer contraceptive coverage, instead of the objecting non-profit.

In University of Notre Dame v. Sebelius, (ND IN, Dec. 20, 2013), an Indiana federal district court rejected Notre Dame's claim that its rights under RFRA and the 1st Amendment are infringed by applying the accommodation in the final rules to its self-insured employee plan and its health insurance policies offered to students. The court summarized its 39-page decision as follows:

Notre Dame wants to eat its cake, and have it still, at the expense of Congress, administrative agencies, and the employees who will be affected. Notre Dame is free to opt out of providing the coverage itself, but it can’t stop anyone else from providing it. But that is essentially what Notre Dame is requesting.... Notre Dame can’t claim to be “pressured” to do something it has done, will do, and would do regardless of the contraception requirement. If Notre Dame opts out of providing contraceptive coverage, as it always has and likely would going forward, it is the government who will authorize the third party to pay for contraception. The government isn’t violating Notre Dame’s right to free exercise of religion by letting it opt out, or by arranging for third party contraception coverage.

Rick Garnett comments briefly on the decision at Mirror of Justice.

Meanwhile, the D.C. federal district court handed down a much longer (94 pages), more complicated and nuanced decision in Roman Catholic Archbishop of Washington v. Sebelius, (D DC, Dec. 20, 2013).  It held that under RFRA the accommodation does not impose a substantial burden on Catholic University's religious exercise when applied to the University's health plans offered through two insurance companies:

Through its self-certification, the religious organization declares its intention to step out of the process. That cannot be accurately characterized as an act that “facilitates” the employees’ access to the services.

However the court reached a starkly opposite result for co-plaintiff Thomas Aquinas College which offers its employees a self-insured health care plan administered by a third party administrator:

the obligation to take affirmative steps to identify and contract with a willing third-party administrator if the existing third-party administrator declines [to provide contraceptive coverage directly] forces the religious organization to do something to accomplish an end that is inimical to its beliefs. This involves the organization in facilitating access to contraceptive services, which the College has averred it cannot do, and it entails the critical element of modifying one’s behavior. Therefore, the College has met its burden to identify a burden on religious exercise imposed by the regulations governing self-insured plans.

The court then went on to dismiss for lack of standing challenges by several other educational, charitable and religious organizations that provide their employees health insurance through the Archdiocese's "church plan."  The court relied on a belated concession made by the government in this and some other cases that it lacks authority to enforce the requirement that third party administrators of "church plans" furnish contraceptive coverage on behalf of objecting organizations because the enforcement authority is derived from ERISA which does not apply to "church plans." The court explained:

Although the church plan plaintiffs are self-insured, and they are under the same obligation as Thomas Aquinas to self-certify and to transmit the form to the third-party administrator, that conduct does not give rise to a concrete, actual or imminent, cognizable injury in fact when it is performed by the church plan plaintiffs because there is no reason to believe that anything will happen after that. 

Additionally the court rejected plaintiffs' 1st Amendment free exercise and Establishment Clause claims and many of their free speech claims.  However it held unconstitutional as a free speech violation a provision in the regulations barring religious non-profits from directly or indirectly seeking to influence the third party administrator's decision to make arrangements for contraceptive services.

Finally the court addressed an argument that has been lurking in the background but was apparently pressed for the first time here-- that the contraceptive coverage mandate violates the Weldon Amendment which prohibits government agencies from discriminating against health care entities that do not provide, refer or provide coverage for abortions. The court said that it:

does not need to wade into this blend of science and theology and decide whether emergency contraceptives are “abortion-inducing” products or simply contraceptives in order to find that the mandate is consistent with the Weldon Amendment..... [T]here is no indication that the contraceptive mandate discriminates ... because they do not provide, pay for, provide coverage of, or refer for abortions. 

In a press release issued Saturday, the Archdiocese of Washington said it will immediately appeal the decision.

Recent Prisoner Free Exercise Cases

In Moore v. Cruse, 2013 U.S. Dist. LEXIS 176071 (SD OH, Dec. 13, 2013), an Ohio federal magistrate judge recommended dismissal of an inmate's complaint that his free exercise rights were infringed when an officer insisted that in order to wear religious headgear ("koofi") in the gym he must provide the proper religious affiliation paperwork.

In Beiler v. Jay County Sheriff, 2013 U.S. Dist. LEXIS 176641 (ND IN, Dec. 17, 2013), an Indiana federal district court dismissed an inmate's complaint that the jail's policy that one-on-one clergy visits to be conducted via video monitor effectively denied him visits with his minister.

In Hall v. Sutton, 2013 U.S. Dist. LEXIS 176115 (SD IL, Dec. 16, 2013), and Illinois federal district court modified and adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 176858, Oct. 3, 2013) and dismissed a Muslim inmate's complaint that during Ramadan he was not given a bag meal to replace his missed lunch, and his complaint that in 2010 the Eid prayer service was held one day late.

In Gooden v. Muse, 2013 U.S. Dist. LEXIS 176994 (WD VA, Dec. 17, 2013), a Virginia federal district court dismissed a Muslim inmate's complaint claiming that an officer lied to him about whether bologna on his food tray contained pork.

In Simmons v. Adamy, 2013 U.S. Dist. LEXIS 176993 (WD NY, Dec. 17, 2013), a New York federal district court dismissed an inmate's complaint that many of his library call-out times were scheduled in conflict with Ramadan, weekly Quranic classes and weekly Jumu'ah services.

In Chambers v. Roberts, 2013 U.S. Dist. LEXIS 177261 (D KA, Dec. 18, 2013), a Kansas federal district court gave an inmate 30 days to cure the deficiencies in his complaint seeking access to a Sweat Lodge once a week instead of once a month and a personal Prayer Pipe with Sacred Tobacco daily instead of weekly. The court also denied class action status.

In Casey v. Pallito, 2013 U.S. Dist. LEXIS 177237 (D VT, Dec. 18, 2013), a Vermont federal district court adopted in part a magistrate's recommendation (2013 U.S. Dist. LEXIS 178152, July 25, 2013), and dismissed an inmate's complaint over separating him from another inmate to whom he was providing religious counseling.  The action was taken to protect the other inmate from sexual predation. The court however allowed plaintiff to move ahead with a challenge to his being removed from his law library job.

In Rogers v. Stanback, 2013 U.S. Dist. LEXIS 178412 (MD NC, Dec. 19, 2013), a North Carolina federal magistrate judge recommended denying a TRO and preliminary injunction sought to prevent prison authorities from confiscating from plaintiff's cell a photocopy of the Nation of Gods and Earth flag that plaintiff says he had in order to prove his legal claims.

In Depaola v. Virginia Department of Corrections, 2013 U.S. Dist. LEXIS 178837 (WD VA, Dec. 20, 2013), a Virginia federal district court dismissed a Nation of Islam inmate's claim that he was denied the Eid-ul-Adha feast on one occasion and was denied a Christmas feast meal. The court allowed plaintiff to proceed with his complaints regarding a TB screening injection that contains alcohol; the common fare diet that he claims does not satisfy his religious beliefs; and food allegedly served under unsanitary conditions.

In Hickman-Bey v. Livingston, 2013 U.S. Dist. LEXIS 179012 (SD TX, Dec. 20, 2013), a Texas federal district court granted a Muslim inmate preliminary injunction allowing him to grow a quarter-inch beard during the pendency of his lawsuit, and barring officials from harassing or retaliating against him.

Nigeria and Uganda Parliaments Pass Harsh Anti-Gay Laws; Final Approval By President/ Prime Minister Uncertain

Daily Trust reports that last week Nigeria's National Assembly gave final approval to the conference committee's version of the Same-Sex Marriage Prohibition Bill 2011.  It imposes a 14-year prison sentence on same-sex couples who enter a marriage or civil union.  Ten year prison sentences are prescribed for anyone who witnesses or aids or abets a same-sex union.  Section 2 of the bill provides:

Any person, who registers, operates or participates in gay clubs, societies and organisations or directly or indirectly make public show of same sex amorous relationship in Nigeria commits an offence and shall each be liable on conviction to a term of 10 years in prison.

The bill still needs the signature of President Goodluck Jonathan to become law.  Amnesty International on Friday called on the President to reject the bill. (AFP).

Meanwhile, on Friday, Uganda's Parliament passed an anti-homosexuality law described as draconian.  The Guardian reports on some of its provisions:

British campaigner Peter Tatchell noted that the bill extends the existing penalty of life imprisonment for same-sex intercourse to all other same-sex behaviour, including the mere touching of another person with the intent to have homosexual relations.

Promoting homosexuality and aiding and abetting others to commit homosexual acts will be punishable by five to seven years jail.... "These new crimes are likely to include membership and funding of LGBT organisations, advocacy of LGBT human rights, supportive counselling of LGBT persons and the provision of condoms or safer sex advice to LGBT people.

"A person in authority – gay or heterosexual – who fails to report violators to the police within 24 hours will be sentenced to three years behind bars."

He added: "Astonishingly, the new legislation has an extra-territorial jurisdiction. It will also apply to Ugandan citizens or foreign residents of Uganda who commit these 'crimes' while abroad, in countries where such behaviour is not a criminal offence. Violators overseas will be subjected to extradition, trial and punishment in Uganda.

The Guardian adds:

[The bill] was opposed by Ugandan prime minister Amama Mbabazi, who argued that not enough MPs were present for a quorum, a challenge that might yet discourage Museveni from signing the bill into law. The threat of a withdrawal of western aid could also play into his decision.

Court Says Catholic Hospitals' Pension Plan Does Not Qualify As "Church Plan" Under ERISA

In an important decision for religiously affiliated hospitals, a California federal district court has held that the pension plan for employees of  Dignity Health, a 16-state non-profit Catholic healthcare provider, does not qualify for the "church plan" exemption in ERISA.  In Rollins v. Dignity Health, (ND CA, Dec. 12, 2013), the court rejected the legal analysis set out by the Internal Revenue Service in a series of private letter rulings, as well as the reasoning of several courts in other circuits.  Instead it held that 29 U.S.C. § 1002(33)(A) clearly requires that to qualify as a church plan, the plan must be established by a church or association of churches.  It rejected Dignity Health's argument that so long as a plan is maintained by a church-affiliated organization, it can qualify as a church plan, even if it was not established by a church.  As reported by Law360, this holding allows plaintiff to move forward with her class action claim that under ERISA, Dignity Health's plan is underfunded by $1.2 billion.  Four similar lawsuits have been filed against other Catholic health care systems by the law firms involved in this litigation.

Two More Courts Issue Preliminary Injunctions In Non-Profit Challenges To Contraceptive Mandate Accommodation

Yesterday, two more federal district courts granted preliminary injunctions in RFRA challenges by religious non-profits to the final rules designed to accommodate their objections to the Affordable Care Act contraceptive coverage mandate. In Legatus v. Sebelius, (ED MI, Dec. 20, 2013), a Michigan federal district court held that requiring the non-profit organization Legatus to fill out the self-certification form indicating its religious objections amounted to a substantial burden on its free exercise of religion, since the form triggers provision of contraceptive coverage by the insurer. The court also concluded that the government is unlikely at trial to be able to show that it has a compelling interest for imposing the burden, or that it has used the least restrictive means to achieve it goals.

In Reaching Souls International, Inc. v. Sebelius, (WD OK, Dec, 20, 2013), an Oklahoma federal district court, relying largely on the 10th Circuit's Hobby Lobby decision in a for-profit case, found that the accommodation created a substantial burden on free exercise.  It granted a preliminary injunction barring enforcement against all nonprofit religious organizations that provide benefits to employees through health plans sponsored by the Southern Baptist Convention's GuideStone Financial Resources. Becket Fund issued a press release announcing the decision. [Thanks to Luke Goodrich for the lead.]

Emory Committee Reportedly Clears Rabbi-Law Prof of Violating University Policies

The Jewish Channel on Thursday reprinted a press release from Emory University reporting on a special Institutional Review and Investigation Committee's conclusions regarding charges that Emory law Professor Michael Broyde created several online pseudonyms as alternate identities. (The press release-- undated in the reprint-- does not appear to have been posted, at least yet, by Emory University on its website.)  The Jewish Channel's prior investigative reports have been at the center of the charges.  Broyde, who is also a rabbi, admitted to having used pseudonyms to to submit letters to Jewish journals, post blog comments (including ones commenting on his own work), and to join a rival rabbinical group (International Rabbinic Fellowship) to gain access to its listserv.  (See prior posting.)  According to Emory's press release:

the Committee found that Professor Broyde used a pseudonym exclusively for activities in his rabbinic capacities, not in his scholarly capacities connected with Emory University. Accordingly, the Committee concluded that the conduct did not violate Emory policies that govern allegations of research misconduct, and the University accepted the Committee’s conclusions.

Nevertheless, candor is an extremely important value for the legal profession, the Law School, and the University, and Professor Broyde has pledged that in the future he will not engage in any conduct that conflicts with this value.

The Committee did not find evidence to support charges of an additional pseudonym used by Broyde. (See prior posting.) The Jewish Channel yesterday criticized the thoroughness of the Committee's investigation.

Federal Court Strikes Down Utah's Ban On Same-Sex Marriage

Yesterday, a Utah federal district court declared Utah's state constitutional and statutory bans on same-sex marriage invalid under the due process and equal protection clauses of the federal constitution and enjoined the state from enforcing provisions of Utah law that prevent a person from marrying another person of the same sex. In Kitchen v. Herbert, (D UT, Dec. 20, 2013), the court said in part:

If, as is clear from the Supreme Court cases discussing the right to marry, a heterosexual person’s choices about intimate association and family life are protected from unreasonable government interference in the marital context, then a gay or lesbian person also enjoys these same protections. ... The Supreme Court’s decision in Lawrence removed the only ground—moral disapproval—on which the State could have at one time relied to distinguish the rights of gay and lesbian individuals from the rights of heterosexual individuals.

Moving to plaintiffs' equal protection challenge, the court held that none of the reasons put forward to justify the ban-- responsible procreation, optimal child rearing, proceeding with caution, preserving the traditional definition of marriage-- survive even "rational basis" review.

Utah's Attorney General quickly moved to stay the court's order, filing a motion (full text) in district court as well as a motion (full text) in the 10th Circuit.  The court's decision and plans for appeal are discussed at Scotus Blog, Christian Science Monitor, and the Salt Lake Tribune. An op-ed in the St. George (UT) News contrasts the quick appeal of the ruling with the still-uncertain reaction of state officials to a federal court decision last week invalidating a large part of Utah's law banning polygamy.

In Ogden, Weber County officials had originally announced the the county Clerk's office would be open for one hour today to process marriage license applications, but reversed that decision, turning away over 200 people in line.  According to the Salt Lake Tribune, county Clerk Ricky Hatch apologized to those waiting, and later explained that the decision not to open was made in part because there was no security in place for the building and in part because he was "advised that opening the office for 'special circumstances' may violate equal-protection laws, as the county had never before opened on a Saturday to accommodate a particular group or event."

Canada's Supreme Court Strikes Down Country's Laws Restricting Activities Relating To Prostitution

In a decision today in which 3 religious groups were among the numerous interveners, the Supreme Court of Canada held unconstituitonal three provisions of Canada's criminal code which prohibit certain activities related to prostitution.  In Canada (Attorney General) v. Bedford, (Sup. Ct. Can., Dec. 20, 2013), the Court held unanimously that the prohibition on keeping or being in a bawdy‑house; living on the avails of prostitution; and communicating in public for the purposes of prostitution, are unconstitutional under the Charter of Rights and Freedoms, Sec. 7 which protects life, liberty and security, saying in part:

The prohibitions all heighten the risks the applicants face in prostitution — itself a legal activity.  They do not merely impose conditions on how prostitutes operate.  They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky — but legal — activity from taking steps to protect themselves from the risks.

However the Court suspended the effectiveness of its judgment for one year in order to give Parliament time to enact a new approach to regulating prostitution.  CBC News reports on the decision. In a press release reacting to the decision, the Evangelical Fellowship of Canada(one of the Interveners in the case) said:

In light of today’s decision, we urge the federal government to enact new laws to protect vulnerable women, children and men from victimization and being trafficked.

The Catholic Civil Rights League and Christian Legal Fellowship (the other religious interveners) also issued press releases reacting to the decision. [Thanks to How Appealing for the lead.]

Israel's Supreme Court Issues Temporary Stay Of Rabbinical Court's Order Requiring Boy's Circumcision

As previously reported, last month Israel's Supreme Rabbinical Court upheld a lower court's $140 per day fine imposed on a woman who is refusing to have her one-year old son circumcised. Her husband, as part of a divorce action, is seeking to require the circumcision. Now, according to a report yesterday from Haaretz, Israel's Supreme Court has issued a temporary injunction halting enforcement of the Rabbinical court's order pending its appeal.  The Supreme Court ordered the husband to respond to the appeal by Jan. 2.

Oklahoma Capitol Commission Puts Moratorium On Applications For New Statehouse Monuments

According to AP, the Oklahoma Capitol Preservation Commission voted yesterday to impose a moratorium on requests for new displays on the statehouse grounds until a pending lawsuit over a Ten Commandments monument there is resolved. News of the monument put up last year triggered a request from a New York-based Satanic Temple for permission to also put up a monument.  That was quickly followed by requests from a Hindu group in Nevada, the People for the Ethical Treatment of Animals, and the satirical Church of the Flying Spaghetti Monster. (See prior related posting.) The Commission chairman said passing on any of these requests now would be premature.

After 2 Wins, Religious Non-Profits Lose Challenge To Contraceptive Mandate Accommodation In D.C. Federal Distrct Court

After Pennsylvania and New York federal district courts in recent weeks held that the Affordable Care Act contraceptive coverage mandate accommodation for religious non-profits violates the Religious Freedom Restoration Act, yesterday the D.C. federal district court reached an opposite conclusion, rejecting both RFRA and 1st Amendment challenges to the final regulations. In Priests for Life v. U.S. Department of Heath and Human Services, (D DC, Dec. 19, 2013), the D.C. federal district found that no substantial burden was placed on a pro-life group's free exercise by requiring it to complete the self-certification form to opt into the accommodation for religious non-profits:

during oral argument Plaintiffs conceded that they have no religious objection to the self-certification form, in and of itself. Rather, Plaintiffs’ act under the accommodations becomes burdensome only when it is characterized as “cooperating” with or providing “authorization” for “the government’s illicit goal of increasing access to and utilization of contraceptive services.” ... But no matter how religiously offensive the statutory or regulatory objective may be, the law does not violate RFRA unless it coerces individuals into acting contrary to their religious beliefs.... In this case, it is only the subsequent actions of third parties – the government’s and the issuer’s provision of contraceptive services, in which Priests for Life plays no role – that animate its religious objections.

Staten Island Live reports on the reaction to the decision by  Rev. Frank Pavone, national director of Priests for Life:

Injunction or not, we will absolutely not obey, cooperate with, or tolerate in any way this unjust mandate. As Scripture says, we will obey God rather than men.

New Mexico Supreme Court Validates Same-Sex Marriages

In Griego v. Oliver, (NM Sup. Ct., Dec. 19, 2013), the New Mexico Supreme Court, in a unanimous opinion, held that the state must allow same-sex couples to marry.  New Mexico is the only state whose laws do not explicitly either permit or prohibit same-sex marriage. (See prior related posting.)  However in its decision, the Supreme Court concluded that "the statutory scheme reflects a legislative intent to prohibit same-gender marriages."  It went on to hold that this prohibition is unconstitutional:

We conclude that the purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children if they choose to raise children together, and their property. Prohibiting same-gender marriages is not substantially related to the governmental interests advanced by the parties opposing same-gender marriage or to the purposes we have identified. Therefore, barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause under Article II, Section 18 of the New Mexico Constitution. We hold that the State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.

In reaching its decision, the court added:

Although this question arouses sincerely-felt religious beliefs both in favor of and against same-gender marriages, our analysis does not and cannot depend on religious doctrine without violating the Constitution.... Our holding will not interfere with the religious freedom of religious organizations or clergy because (1) no religious organization will have to change its policies to accommodate same-gender couples, and (2) no religious clergy will be required to solemnize a marriage in contravention of his or her religious beliefs.

Bloomberg News reports on the decision which makes New Mexico the 17th state to recognize same-sex marriage. [Thanks to Tom Rutledge for the lead.]

Lawsuit Charges Mohel Botched Infant's Ritual Circumcision

According to the Pittsburgh Tribune-Review, a lawsuit was filed in Philadelphia (PA) on Tuesday by parents of a now-8 month old boy whose ritual circumcision was allegedly botched.  The suit against Rabbi Mordechai Rosenberg, the mohel who performed the circumcision last April, says that Rosenberg's negligence led to catastrophic and life-changing injury to the infant who had to be rushed to Children's Hospital for emergency reconstructive surgery.

Saturnalia Billboard Angers Town Residents

In the small town of Pitman, New Jersey, for over 40 years a large banner proclaiming "Keep Christ in Christmas" has hung over a street in the city's business district. Philly.com reports that the Freedom from Religion Foundation has been rebuffed for several years in its attempt to get permission to put up a competing sign, so instead they have now rented billboard space at a busy intersection to display their message: "Keep the Saturn in Saturnalia."  This has apparently incensed some Pitman residents, and protests are escalating.  On Sunday, a family attempted to shroud the billboard with a picture of Jesus, and on Tuesday night, two men attempted unsuccessfully to burn down the billboard after pouring gasoline at its base.  The police chief says that patrols near the billboard will be increased, and the arsonists will be prosecuted if caught.

Russia May Free Pussy Riot Band Members Early

To mark the 20th anniversary of the Russian Constitution, Russia's State Duma yesterday by a vote of 446-0 passed a broad prison amnesty bill applying to various categories of offenders and offenses.  Radio Free Europe reports that since the amnesty covers those sentenced for hooliganism, it apparently includes the two jailed members of the punk rock band Pussy Riot. In August 2012, the band members were arrested after they entered a nearly empty Christ the Savior Cathedral in Moscow and performed an obscene "punk prayer" in protest of the Russian Orthodox Church's political support for Vladimir Putin. (See prior posting.) Their sentences are up in March without the amnesty. The amnesty law goes into effect as soon as it is published in  "Rossiiskaya Gazeta," the government newspaper-- which is expected to happen today. Some suggest that the amnesty law is an attempt to bolster Russia's human rights image ahead of the upcoming Winter Olympics in Sochi.

UPDATE: CNN reports (Dec. 23) that the two Pussy Riot band members have been released from prison.

Service Members Object To Chrechès At Guantanamo

The Navy Times reports this week that 18 active duty service members stationed at Guantanamo Bay, Cuba are complaining about two Nativity scenes that have been placed in on-base galleys.  They want them moved to the on-base chapel. In an e-mailto the Military Religious Freedom Foundation asking for help, the objecting service members wrote:

Our local military family encompasses many faiths and beliefs to include Muslim, Jewish, Wiccan, Buddhist, Agnostic and other denominations. By placing these displays in prominent common areas, the impression is that one faith is better than others, and that the military institution singularly promotes Christianity.

[Thanks to Dawinder Sidhu via Religionlaw for the lead.]

European Human Rights Court Says Refusal of Vegetarian Diet To Buddhist Prisoner Violated His Religious Rights

In Vartic v. Romania, (ECHR, Dec.17, 2013),the European Court of Human Rights, in a Chamber judgment, held that a Buddhist prison inmate's rights of religion and conscience protected by Article 9 of the European Convention on Human Rights, were infringed when Romanian officials refused to provide him with a vegetarian diet:

...[D]espite the margin of appreciation left to the respondent State, the Court finds that the authorities failed to strike a fair balance between the interests of the prison authorities and those of the applicant, namely the right to manifest his religion through observance of the rules of the Buddhist religion.

The court awarded petitioner damages of 3200 Euros. Courthouse News Service reports on the decision.

Russian Appeals Court Says Qur'an Translation Is Not Extremist Publication

RAPSI reported yesterday that in Russia, the Krasnodar Territorial Court has reversed the controversial ruling by the Novorossiisk District Court that had banned an abridged Russian translation of the Qur'an by Azerbaijani philosopher Elmir Kuliyev.  The lower court had held that the translation should be banned under the federal law barring extremist materials, and that copies of it should be destroyed. (See prior posting.) The Territorial Court has refused to declare the translation an extremist work.

No Unemployment Benefits Because Employee Failed To Notify Employer of Scope of Needed Religious Accommodation

In Rhodes v. Unemployment Compensation Board of Review, 2013 Pa. Commw. Unpub. LEXIS 890 (PA Commonwealth Ct., Dec. 16, 2013), the Commonwealth Court of Pennsylvania agreed with the Unemployment Compensation Board of Review that a former veterans' center food service worker had left his job voluntarily, and had not been forced to leave because of discrimination based on his religious beliefs. Therefore he was not entitled to unemployment benefits.  The former employee had informed his employer that he had religious objections to participating in religious holidays.  The employer accommodated him.  However, when the employee refused to set up for a Fathers' Day luncheon, he was disciplined, and resigned.  The court held that the employee failed to advise his employer that his religious beliefs precluded him from participating not just in religious holidays, but in secular ones also, and thus did not give the employer a reasonable opportunity to accommodate those beliefs.

Two Decisions Follow On Illinois Legalization Of Same-Sex Marriage

As previously reported, last month Illinois Governor Pat Quinn signed legislation legalizing same-sex marriage in the state, effective June 1, 2014. There have now been two follow-up judicial developments. As reported by Illinois Review, yesterday, with the backing of all parties, an Illinois state trial court judge dismissed as moot the complaint in Darby v. Orr, a suit filed last year by the ACLU and Lambda Legal challenging the constitutionality of Illinois' previous prohibition of same-sex marriage.

Meanwhile, in Lee v. Orr, (ND IL, Dec. 10, 2013), an Illinois federal district court issued an opinion in a class action lawsuit granting a temporary injunction allowing  individuals in same-sex relationships who need to marry before to June 1, 2014 due to a life-threatening illness of one or both parties the right to do so. The court said:

The putative subclass of medically critical plaintiffs here are likely to succeed on the merits of their claim that the provisions of the current Illinois law that deny them the right to marry based solely on their sexual orientation, as applied, violates their constitutional right to equal protection.

The court's decision was contingent on the parties agreeing on a satisfactory implementation method.  They have done so.  As announced by the ACLU,  the court finalized its order yesterday adopting a procedure that allows same-sex couples to marry before June 1 if they provide a doctor’s certification stating that one of them has a life-threatening illness. Still pending in the case is the broader attempt by plaintiffs to speed up the same-sex marriage implementation date for everyone.

North Dakota AG Says Non-Recognition of Same-Sex Marriage Allows Issuance of License For Heterosexual Marriage To Same-Sex Spouse

In Letter Opinion 2013-L-06, (ND AG, Dec. 12, 2013), North Dakota Attorney General Wayne Stenehjem concluded that since the state does not recognize same-sex marriages, a county recorder in North Dakota may issue a marriage license for a heterosexual marriage to an individual who previously entered a valid same-sex marriage in another state, even when the same-sex marriage has not been legally dissolved.  Consistent with this, the Attorney General also ruled that an individual who previously entered a same-sex marriage elsewhere would not be committing a criminal violation in North Dakota by checking the box on the marriage license application indicating that he or she is "Single/Never Married." The Attorney General concluded by stating that it would be inappropriate for him to give a legal opinion on whether the person married in these circumstances would be in violation of another state's bigamy statute if he returns to a state that recognizes both marriages. Forum News Service reports on the AG's opinion letter. [Thanks to Alliance Alert for the lead.]

Canada's First Religious Law School Clears Major Approval Hurdle

In Canada, Trinity Western University, a Christian liberal arts university in British Columbia, cleared a major hurdle this week in its bid to open the country's first private religious law school.  In a December 16 press release, the Federation of Law Societies of Canada announced that it has granted preliminary approval for the school's program. As reported by The Tyee yesterday, the Council of Canadian Law Deans had expressed concern over the school’s mandatory Community Covenant agreement for students, faculty, and staff. (See prior posting.) The Covenant calls for abstention from alcohol, tobacco, illegal drugs, and "sexual intimacy that violates the sacredness of marriage between a man and a woman." The Deans objected that the Covenant may lead to illegal discrimination on the basis of sexual orientation. The Federation of Law Societies is considering adding a non-discrimination requirement for all law schools. The proposed new law school now must still obtain approval from British Columbia's Ministry of Advanced Education.

Court Denies Freedom of Information Request For Name of Mohel Who Spread Herpes

In In re Application of Berger and The Jewish Daily Forward v. New York City Department of Health and Mental Hygiene, (NY Sup Ct Queens Co., Dec. 2, 2013), a New York state trial court rejected an investigative reporter's Freedom of Information Law (FOIL) request for the name of the Mohel (Jewish ritual circumcision practitioner) who infected an infant with herpes while using the Orthodox Jewish circumcision practice of Metzizah B'Peh (oral suction).  Rules promulgated by the New York City health department require written informed consent from parents for use of the oral suction method. (See prior posting.) In rejecting the FOIL request, the court relied on the statutory exemption for records which "if disclosed would constitute an unwarranted invasion of personal privacy...." The court said:

A person with herpes or any similar communicable disease suffers the same privacy concerns whether or not his business or personal life is concerned. In either instance, their personal privacy concerns are implicated irrespective of their vocational situation. The fact that an infected individual is a Mohel, a sous chef, or a police officer, no less implicates their personal privacy interests, or diminishes the need to keep their health status confidential.... 

The court finds that the disclosure of the names of the reported persons would likely subject the named individuals to vilification in the press, as well as embarrassment and shame in both their business and private life, in addition to possible sanctions for violations of the NYC Health Code if they infected others. The Court is also aware of the difficulties encountered by the New York City Department of Health in obtaining the cooperation of infected persons or members of religious orders in reporting conditions involving the spread of contagion.

The Forward yesterday reported on the decision.

New York Religious Non-Profits Win Injunction Against Obamacare Contraceptive Coverage Rule

In Roman Catholic Archdiocese of New York v. Sebelius, (ED NY, Dec. 16, 2013), a New York federal district court granted an injunction to two Catholic schools and two Catholic health care organizations, preventing the federal government from enforcing the Affordable Care Act final contraceptive coverage mandate rules against them.  Under those rules, religious non-profits that do not qualify for a total exemption from the mandate may complete a self-certification form attesting to their religious objections and send that form to their insurer or third party administrator.  The insurer or administrator then-- under rules promulgated under ERISA-- must furnish contraceptive coverage to the non-profit's employees without charge.  In a new twist in this case, however, the government conceded that because all the plans involved in this case are "church plans," regulations under ERISA do not apply to them.

The court held that, under the Religious Freedom Restoration Act, the self-certification requirements in the final contraceptive coverage rules substantially burden the religious exercise of plaintiff organizations, and the government failed to show that these rules are the least restrictive means of advancing a compelling governmental interest. The court said in part:

As for the self-certification requirement, the Court rejects the Government’s position that plaintiffs may be compelled to perform affirmative acts precluded by their religion if a court deems those acts merely "de minimis." This argument – which essentially reduces to the claim that completing the self-certification places no burden on plaintiffs’ religion because "it’s just a form" – finds no support in the case law....

Plaintiffs’ religious objection is not only to the use of contraceptives, but also to being required to actively participate in a scheme to provide such services. The Government feels that the accommodation sufficiently insulates plaintiffs from the objectionable services, but plaintiffs disagree. Again, it is not the Court’s role to say that plaintiffs are wrong about their religious beliefs.

Finding a substantial burden, the court went on to conclude that the government had not shown a compelling interest to impose the burden:

Tens of millions of people are exempt from the Mandate, under exemptions for grandfathered health plans, small businesses, and "religious employers" like the Diocesan plaintiffs here. Millions of women thus will not receive contraceptive coverage without cost-sharing through the Mandate. Having granted so many exemptions already, the Government cannot show a compelling interest in denying one to these plaintiffs....

Finally, but very significantly, the Government’s belated revelation that the regulations do not even require plaintiffs’ TPAs to provide contraceptive coverage [because they are "church plans"] fatally undermines any claim that imposing the Mandate on these plaintiffs serves a compelling governmental interest.... In other words, the Mandate forces plaintiffs to fill out a form which, though it violates their religious beliefs, may ultimately serve no purpose whatsoever. A law that is totally ineffective cannot serve a compelling interest.

The court also found that numerous less restrictive alternatives are available, such as direct government provision of contraceptive services or insurance, or furnishing of coverage through third parties without requiring the objecting employer's active participation.

While thus granting an injunction to diocese-affiliated schools and health care organizations, the court refused to grant an injunction barring enforcement against the two diocese plaintiffs themselves, because under the final rules they are completely exempt from the mandate.  In doing so, the court rejected the rationale relied upon by a Pennsylvania federal district court last month in granting a preliminary injunction in a similar challenge. (See prior posting.)  The New York court said:

Count VI of the Amended Complaint alleges that the Mandate unconstitutionally interferes with the Catholic Church’s internal governance by "artificially splitting the Catholic Church in two," dividing its religious arm from its charitable and educational arms.... The Mandate does not "split" the Catholic Church in two – it does not require any change to the religious structure, hierarchy or organization of the Church and its affiliated organizations. At most, it could "split" the Church’s health plan in two. The prohibition on interference with internal church governance applies to ecclesiastical matters such as the selection and supervision of ministers by religious authorities, and plaintiffs have not cited any case that even remotely suggests that a health plan may constitute a matter of "internal church governance" protected by the First Amendment.

Newsmax reports on reaction to the decision. [Thanks to Geoff Surtees for the lead.]

House Subcommittees Hold Hearing On Iran's Detention of American Pastor

On Dec.12, two subcommittees of the U.S. House Foreign Affairs Committee held a joint hearing on "Iran’s Persecution of American Pastor Abedini Worsens."  The text of prepared statements and videos of the entire hearing are available on the Committee's website.

Federal Financial Aid Forms Will Now Recognize Same-Sex Marriages

The U.S. Department of Education announced on Friday that, in light of the Supreme Court's Windsor decision, it will recognize same-sex marriages for purposes of eligibility for Federal Financial Aid. It said in part:

[T]he Department will recognize a student or a parent as legally married if the couple was legally married in any jurisdiction that recognizes the marriage, regardless of whether the marriage is between a couple of the same sex or opposite sex, and regardless of where the student or couple lives or the student is attending school.

It also posted on its website a "Dear Colleague" letter (full text) detailing how its new policy should be applied by those completing FAFSA financial aid forms and calculating the student's Expected Family Contribution. The new policy does not apply to civil unions, domestic partnerships and other arrangements short of marriage. However, as announced earlier this year, beginning with the 2014-2015 FAFSA, dependent students will be required to include on the FAFSA income and other information regarding their legal parents (biological or adoptive) regardless of marital status or gender, if those parents live together. FAFSA will include a new category: "unmarried and both parents living together." [Thanks to Alliance Alert for the lead.]

Recent Articles of Interest

From SSRN:

• Lorenzo Zucca, Is Scientology a Religion? Religious Marriage and the UK Supreme Court's Landmark Decision Hodkin v Registrar, (December 9, 2013).
• Eric Bennett Rasmusen, The Goals of the Corporation under Shareholder Primacy: Just Profit — Or Social Responsibility and Religious Exercise Too?, (December 8, 2013).
• Linda C. McClain, Against Agnosticism: Why the Liberal State Isn't Just One (Authority) Among the Many, (Boston University Law Review, Vol. 93 (December 2013)).

From SmartCILP and elsewhere:

• John Makdisi, Uncaring Justice: Why Jacque v. Steenberg Homes Was Wrongly Decided, 51 Journal of Catholic Legal Studies 111-143 (2012).
• Brian M. Murray, Chicken Soup for the Legal Soul: The Jurisprudence of Saint Thomas Moore, 51 Journal of Catholic Legal Studies 145-206 (2012).
• Joshua Dorner, Religious Liberty for Some or Religious Liberty for All?, (Center for American Progress, Dec. 12, 2013).

British Tribunal Awards Wiccan Witch Damages For Unfair Dismissal and Religious Discrimination In Employment

In Britain, in the first case of its kind, an Employment Tribunal at Watford (near London) has awarded a total of over £15,000 ($24,500 US) for unfair dismissal, sex discrimination and religious discrimination in a suit brought by a Wiccan witch who claims she was fired by her employers who were horrified when they learned of her beliefs.  According to last week's Daily Mail, Karen Holland had worked for two years at the newspaper and magazine concession at the Londis store in West Hemple when in October the news agency was taken over by two brothers, Tarloch and Gurnam Singh (who are Sikhs). They discovered Holland's beliefs later that month when she returned from celebrating All Hallows' Eve (also known as the Pagan Festival of the Dead).  They began to ridicule her and fired her the next month after accusing her of stealing a magazine and a lottery ticket. In finding for Holland, the Tribunal judge said that the manner in which she was fired was "indefensible" and breached "the basics of natural justice." The owners are appealing the decision, saying the damage award will destroy their business.

Recent Prisoner Free Exercise Cases

In McBryde v. Thomas, 2013 U.S. Dist. LEXIS 169260 (D MT, Nov. 27, 2013), a Montana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 169522, Nov. 7, 2013) and allowed an inmate to move ahead with his complaint that the Parole Board conditioned his parole on successful completion of a chemical dependency treatment program that required him to accept religious teachings.

In Kyles v. Kusey, 2013 U.S. Dist. LEXIS 147910 (ED MI, Oct. 15, 2013), a Michigan federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 173112, Sept. 5, 2013) and permitted a Muslim inmate to proceed with his complaint that his free exercise rights were violated when bag meals he was given during the Ramadan fast provided insufficient nutritional value.

In Morrow v. Kelley, 2013 U.S. Dist. LEXIS 173439 (ED AR, Dec. 11, 2013), and Arkansas adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 173437, Nov. 15, 2013) that an inmate be allowed to move ahead with his claim that correctional officers confiscated religious texts from his cell.

In McDaniels v. Elfo, 2013 U.S. Dist. LEXIS 174285 (WD WA,Dec. 12, 2013). a Washington federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 174301, Aug. 19, 2013) and allowed a Muslim inmate to proceed with his free exercise claims challenging the denial of Halal meat, the nutritional adequacy of the Ramadan diet and the denial of pain reliever during Ramadan. However the court dismissed complaints regarding failure to furnish an Arabic Qur'an, Ramadan meal times and dates, and a concluding feast.

In Janali v. Corrections Corporation of America. 2013 U.S. Dist. LEXIS 174825 (SD MS, Dec. 13, 2013), a Mississippi federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 174827, Oct. 30, 2013) and dismissed a Shiite Muslim inmate's complaint that there were not Jummah services for Shiite inmates separate from Sunnis. It also dismissed his complaint that he was removed from the kosher diet plan when he purchased clams, even though clams are permissible under Halal rules. He sought a Halal diet.

In Bramlett v. Isaacs, 2013 U.S. Dist. LEXIS 175213 (SD IL, Dec.12, 2013), an Illinois federal district court permitted plaintiff who is confined as a sexually dangerous person to proceed with his claim that his free exercise and RLUIPA rights were violated when the program administrator lowered his evaluation score because he refused for religious reasons to comply with the recommendation that he engage in masturbation to accomplish arousal control. He also claims retaliation because of the grievance he filed over this.

In Grayson v. Goetting, 2013 U.S. Dist. LEXIS 175242 (SD IL, Dec. 11, 2013), an Illinois federal district court permitted an African Hebrew-Israelite inmate to proceed with his claims that his free exercise and RLUIPA rights were violated when he was required to cut his dreadlocks. He was also permitted to proceed with a retaliation claim, but was denied an order for transfer to a different facility.

New Anti-Semitic Manifestations Reported In Europe

New examples of anti-Semitism in Europe have made the news in recent days.  EJP reports on the growing criticism of an anti-Semitic Christmas carol broadcast on Dec. 6 by the state-operated Romanian channel TVR3 Verde, a channel directed to rural communities. According to the report:

In the carol, sung by a choir, the “jidovi”, a derogatory term for Jews, are reproached for having “mocked” the Christ Child. “Only in the chimney, in the smoke, the ‘jidov’ is good”, the lyrics further say.

The U.S. embassy in Bucharest issued a statement on Dec. 12 calling the broadcast "an unacceptable display of anti-Semitism." Romania's foreign minister, as well as the Israeli embassy in Bucharest have also condemned the broadcast.

In another move, reported on briefly in the English language press by AFP, but garnering more attention in the Romanian language press, Romania's Jewish community is angered by the ruling Social Democratic Party's nomination of Lucian Bolcas, former vice-president of the nationalistic, right-wing Greater Romania Party, to be a judge on Romania's Constitutional Court. The Centre for the Fight against Anti-Semitism calls Bolcas's ideas "racist and anti-Semitic."

Meanwhile, Haaretz and JTA report that in Italy a spokesman for the Forconi (Pitchfork) Movement which led widespread populist protests against Prime Minister Enrico Letta’s government, its austerity program and the European Union last week, made blatantly anti-Semitic statements in an interview Friday with the newspaper La Repubblica.  Andrea Zunino told the paper:

We want the government to resign.  We want the sovereignty of Italy, which today is slave to the bankers, like the Rothschilds. It is curious that five or six of the richest people in the world are Jews, but this is something I need to investigate.

Australia's Highest Court Invalidates Capital Territory's Marriage Equality Law

In Commonwealth of Australia v. Australian Capital Territory, (Australia High Ct., Dec. 12, 2013), Australia's highest court invalidated the Australian Capital Territory's Marriage Equality (Same Sex) Act 2013 as inconsistent with federal law.  As summarized by the High Court's press release:

Today the High Court decided unanimously that the Marriage Equality (Same Sex) Act 2013, enacted by the Legislative Assembly for the Australian Capital Territory, cannot operate concurrently with the federal Marriage Act 1961. The Court held that the federal Parliament has power under the Australian Constitution to legislate with respect to same sex marriage, and that under the Constitution and federal law as it now stands, whether same sex marriage should be provided for by law is a matter for the federal Parliament.

The decision comes only 5 days after the Australian Capital Territory's new law took effect. Some 27 same-sex couples got married during that period. According to CNN, those marriages will be annulled.

Federal Court Strikes Down Most of Utah's Statute Banning Polygamy

In a ground-breaking decision in Brown v. Buhman, (D UT, Dec. 13, 2013), a Utah federal district court held that most of Utah's statute barring polygamy is unconstitutional.  Utah Code §76-7-101 provides:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

Plaintiffs, the polygamous family featured on the TLC reality series "Sister Wives," sued seeking a declaratory judgment that Utah's ban on plural marriage is unconstitutional. (See prior posting.) Plaintiffs are members of a religious group that believes polygamy is a core religious practice.  Federal district Judge Waddoups held that the portion of the statute barring cohabitation while married to someone else is unconstitutional as a violation of free exercise rights.  Concluding that in operation the ban is not applied neutrally, but is primarily used to target religious co-habitation, the court held that the ban is subject to strict scrutiny, and fails that test.  Judge Waddoups also concludes that the ban, under a rational basis review, violates plaintiffs' rights to be free from government interference in matters of consensual sexual privacy, and is void for vagueness. In ruling on this portion of the statute, the court said that it was not constrained by the U.S. Supreme Court's 1878 decision in Reynolds v. United States upholding the federal anti-bigamy statute because that decision dealt only with a ban on multiple marriages, not on cohabitation while married.

Nevertheless, Judge Waddoups wrote a lengthy and unusual critique of Reynolds,  analyzing it in terms of Prof. Edward Said's theory of "Orientalism."  The court said that the social harm from Mormon polygamy perceived by the Supreme Court in Reynolds was the introduction of "a practice perceived to be characteristic of non-European people—or non-white races—into white American society."

The district court also severely limited the application of the remaining ban in Utah's bigamy statute-- the ban on purporting to marry a third person while already married to someone else.  In a 2006 decision in State of Utah v. Holm (see prior posting), the majority of the Utah Supreme Court held that this statutory ban applies to polygamous marriages that are solemnized through religious ceremonies even when no state marriage license has been sought.  Judge Waddoups initially says that he is bound by the Utah Supreme Court's interpretation of the state bigamy statute.  However he appears to back off of this limitation when he faces the question of the constitutionality of the ban on purporting to marry. He says that this portion of the statute "raises the same constitutional concerns addressed in relation to the cohabitation prong...." and can be saved only by a narrowing construction.  He finds that in the views of the dissent in the Holm case:

the court agrees with Chief Justice Durham['s dissent] that the “purports to marry” prong should be interpreted “as referring to an individual’s claim of entry into a legal union recognized by the state as marriage. The phrase does not encompass an individual’s entry into a religious union where there has been no attempt to elicit the state’s recognition of marital status or to procure the attendant benefits of this status under the law, and where neither party to the union believed it to have legal import."

The Salt Lake Tribune reports on the decision. Orin Kerr and David Kopel both analyze the case at Volokh Conspiracy.

District Court Orders Mt. Soledad Cross Removed; Appeals Expected

On Thursday, yet another opinion was handed down in the litigation challenging the constitutionality of the cross that is part of the Mt. Soledad veterans' Memorial. Various lawsuits over over the 43-foot high cross on public property in California have spanned 24 years.  In 2011, the 9th Circuit (see prior posting) held that the Memorial conveys an endorsement of religion that violates the Establishment Clause, but added: "This result does not mean that the Memorial could not be modified to pass constitutional muster nor does it mean that no cross can be part of this veterans’ memorial." The 9th Circuit remanded the case to the district court to determine the appropriate remedy.

After attempts to appeal the 9th Circuit's ruling were rejected, the district court in Trunk v. City of San Diego, (SD CA, Dec. 12, 2013) has now held that the cross must be removed.  It said that despite the 9th Circuit's statement that changes in the Memorial might make it constitutionally acceptable, language in the 9th Circuit's opinion "makes it clear that removal of the large, historic cross is the only remedy that the Ninth Circuit conceives will cure the constitutional violation."  This is unlikely to be the last word, however, because the court also stayed its order pending the resolution of any appeal.  Liberty Institute says that it will appeal the ruling, all the way to the Supreme Court if necessary. Wall Street Journal reports on the decision.

Final Version of Defense Authorization Bill Contains Military Religious Freedom Provisions

The House of Representatives yesterday passed H Res. 441 concurring in the Senate Amendments to the 2014 Defense Authorization Bill, H.R. 3304, (with one minor amendment so that it must still go back to the Senate for final approval). (Full text of resolution and bill.) As is typical with military authorization and spending bills, this one contains several provisions on religious freedom in the military.

Section 532 tweaks the language in current law on conscience rights of those in the military, so that the new provision (new language in italics) reads:

Unless it could have an adverse impact on military readiness, unit cohesion, and good order and discipline, the Armed Forces shall accommodate individual expressions of belief of a member of the armed forces reflecting the sincerely held conscience, moral principles, or religious beliefs of the member and, in so far as practicable, may not use such expressions of belief as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

The section also sets a 90-day deadline for issuance of regulations implementing this section, and requires the Pentagon to consult with faith-group representatives who endorse military chaplains in drafting the regulations.

Section 533 then requires a DOD Inspector General's report 18 months later on Armed Forces compliance with the ban on adverse personnel action based on conscience, moral principles or religious beliefs. The IG is to consult with the Armed Forces Chaplain Board as appropriate in preparing the report.

Section 534 requires that within one year:

The Secretary of Defense shall conduct a survey among a statistically valid sample of military chaplains of the regular and reserve components of the Armed Forces, to be selected at random, to assess whether—

(1) restrictions placed on prayers offered in a public or non-religious setting have prevented military chaplains from exercising the tenets of their faith as prescribed by their endorsing faith group; and 

(2) those restrictions have had an adverse impact on the ability of military chaplains to fulfill their duties to minister to members of the Armed Forces and their dependents.

The Joint Explanatory Statement (at pp. 63-65) explains the House-Senate compromises that led to these provisions. The Statement also contains the following language (pg. 82) that appears to be a response to criticism by some conservative Christian groups (background) that the military has given preferential access in policy making to the Military Religious Freedom Foundation:

The House bill contained a provision (sec. 530E) that would require the Department of Defense to provide to the Committees on Armed Services of the Senate and the House of Representatives advance written notice of any meeting held between Department employees and civilians for the purpose of writing, revising, implementing, enforcing, or seeking advice, input, or counsel regarding military policy related to religious liberty.

The Senate committee-reported bill contained no similar provision.

 The agreement does not include this provision.

We believe the Department and the military services should proactively reach out to and meet with religious groups of all faiths when formulating and revising policies that impact religious freedom and tolerance within the military. We are becoming increasingly concerned over reports that the Department and the services appear more responsive to some religious groups and interests than others. The Department and the services must be proactive in their efforts to overcome this perception and to ensure the fairness and equity of policies and regulations that address the religious liberty of service members and their families.

Sex Abuse Plaintiff Identifies Himself In Lawsuit Against Chicago Archdiocese

In Chicago, numerous sex abuse victims of former Catholic priest Daniel McCormack  have filed "John Doe" lawsuits, and the Chicago archdiocese has settled many of them.  Yesterday's Chicago Tribune reports that the first case against McCormack in which the victim has identified himself was filed Wednesday.  Plaintiff, 27-year old Darryl McArthur, who like all of McCormack's victims is African-American, says he took this step to combat "the culture of secrecy" surrounding sexual abuse in the African-American community. McArthur has agreed to try to settle the lawsuit through a mediation arrangement that has resolved 20 other claims against the Chicago Archdiocese.  Meanwhile, the accused former priest remains in a mental health facility while a judge considers whether to commit him indefinitely as a sexually violent offender.

Appeal In Ontario Court Seeks To Enforce Quebec Foster Care Order Against Alleged Jewish Religious Cult

As previously reported, last month the insular Orthodox Jewish sect Lev Tahor fled the Canadian province of Quebec and moved to Chatham-Kent, Ontario to avoid Quebec child welfare officials.  Some charge that Lev Tahor is a religious cult under control of its leader Rabbi Shlomo Helbrans. Now the Toronto Star reports that on Dec. 4, Chatham-Kent Children’s Services asked a Justice of the Peace for a warrant that would let them carry out a Quebec court order to place 14 Lev Tahor children in foster care under the guidance of Quebec child-welfare authorities. Quebec claims neglect, psychological abuse, poor nutrition, health problems and home schooling that fails to meet provincial standards.  The Ontario Justice of the Peace rejected the application for the warrant on Dec. 7, and Ontario authorities have filed an appeal.  A brief hearing on the appeal was held Wednesday, with a full hearing scheduled for Dec. 23. Meanwhile Lev Tahor will appeal the Quebec court ruling that first ordered the children into foster care even though they had been moved to Ontario.

EU Directive Requires Companies To Give Same Benefits to Civil Partners Where Same-Sex Marriage Is Unavailable

In Hay v. Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres, (Eur. Ct. Jus. 5th Chamber, Dec. 12, 2013), the 5th Chamber of the European Court of Justice held that under Council Directive 2000/78/EC that creates a framework for equal treatment in employment, it amounts to direct discrimination for a French firm to deny a same-sex couple entering a civil partnership the same benefits given couples being married. The court concluded that:

an employee who concludes a PACS [civil solidarity pact] with a person of the same sex [must be] allowed to obtain the same benefits, such as days of special leave and a salary bonus, as those granted to employees on the occasion of their marriage, where the national rules of the Member State concerned do not allow persons of the same sex to marry, in so far as, in the light of the objective of and the conditions relating to the grant of those benefits, that employee is in a comparable situation to an employee who marries.

Art Leonard Observations has analysis of the decision. [Thanks to Alliance Alert for the lead.]

Taxpayer Suit Challenges North Carolina School Voucher Program

This week some 25 North Carolina taxpayers filed a state court lawsuit challenging the constitutionality of the state's new voucher program for students attending private schools, including religiously sponsored schools. The complaint (full text) in Hart v. State of North Carolina, (Super. Ct., filed 12/11/2013), alleges that the voucher program violates provisions of the North Carolina constitution calling for a uniform system of free public schools. North Carolina Justice Center's website and the website of the North Carolina Association of Educators have additional information on the lawsuit.  AP's coverage of the lawsuit has additional background on the voucher program.

Foundation Buys Native American Items At Auction To Return Them To Tribes

As previously reported, last week a French court refused to stop a Paris auction house from selling 25 sacred Native American objects, despite objections from the American Embassy.  It was known that one of the sacred masks was purchased by the Hopi's French lawyer who intends to return it to the tribe. Now it turns out that the other items will also go back to the tribes who claim them. In a press release this week, the Annenberg Foundation announced that it purchased the remaining 24 sacred artifacts at the auction for a total of $530,000 "for the sole purpose of returning them to their rightful owners. Twenty-one of these items will be returned to the Hopi Nation in Arizona, and three artifacts belonging to the San Carlos Apache will be returned to the Apache tribe." KUOW News has more on the story.

James Dobson's Family Talk Sues Over Contraceptive Coverage Mandate

This week another religious non-profit filed a challenge to the Affordable Care Act contraceptive coverage mandate.  The complaint (full text) in Dobson v. Sebelius, (D CO, filed 12/10/2013), seeks an injunction to prevent enforcement of the mandate against Family Talk, its founder James Dobson, and the third party administrators of its health insurance plans. The suit alleges:

Based on the Bible’s religious and moral teachings, Plaintiffs sincerely believe that the termination of the life of a preborn child by, among other means, abortion-inducing drugs and devices, and related education and counseling, including by means of acting after fertilization to prevent the newly formed embryo from implanting into his or her mother’s uterus, is an intrinsic evil and a sin against God for which Plaintiffs will be held accountable.

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

India's Supreme Court Reverses Lower Court's Invalidation of Ban On Homosexual Acts

In Koushal v. NAZ Foundation, (Sup. Ct. India, Dec. 11, 2013), a 2-judge panel of India's Supreme Court reversed a lower court ruling that had held unconstitutional Section 377 of the Indian Penal Code insofar as it bans homosexual sexual acts in private between consenting adults. (See prior posting.) Rejecting the lower court's holding that the statute violated constitutional provisions on equal protection and non-discrimination, Justice Singhvi wrote:

Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.

The Supreme Court also rejected the lower court's holding that the statute infringes the substantive due process right to privacy:

In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.

Responding to the argument that police have misused the law, the Supreme Court said:

Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on ... those belonging to the LGBT community.  [T]he mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 IPC.

Times of India reports on the decision. 

Britain's Supreme Court Holds Scientology Chapel Is Place of "Religious Worship" Where Marriages May Be Solemnized

In R (on the application of Hodkin and another) .v Registrar General of Births, Deaths and Marriages, (UK Sup. Ct,, Dec. 11, 2013), Britain's Supreme Court overruled a 1970 Court of Appeal case and held that a chapel of the Church of Scientology qualifies under the Places of Worship Registration Act 1855 as "a place of meeting for religious worship." Therefore the Registrar General should have recorded it as a place at which marriages may be solemnized under the Marriage Act 1949.  In so holding,  Lord Toulson wrote:

... [R]eligion should not be confined to religions which recognise a supreme deity. First and foremost, to do so would be a form of religious discrimination unacceptable in today’s society. It would exclude Buddhism, along with other faiths such as Jainism, Taoism, Theosophy and part of Hinduism.... 

For the purposes of PWRA, I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science.... Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind’s nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula.

The court went on to hold that the Scientology chapel is a place of meeting for religious "worship," concluding that it is sufficient that the location is one where members perform religious rites, whether or not the rites involve adoration of a deity:

fine theological or liturgical niceties as to how precisely they see and express their relationship with the infinite ... are more fitting for theologians than for the Registrar General or the courts. 

Lord Wilson wrote a separate concurring opinion, joined by 3 other justices holding that the Registrar General's role in registering houses of worship is more than ministerial. The court also issued a press summary of the decision.  Time reports that the decision may have broad ramifications.  (See prior related posting.)

Nativity Scene On Air Base Creates Controversy

The annual flare up over religious displays on public property at Christmas time appears to have moved this year to military bases. AP reports that at Shaw Air Force base in South Carolina last Friday, a group of volunteers from the base chapel set up a nativity display near a small lake where a tree lighting ceremony was scheduled for Friday evening.  The Military Religious Freedom Foundation, a church-state watchdog, lodged a complaint with the Pentagon and officials ordered the display taken down because it reflects only one religious tradition.  God and Country blog details some of the negative reaction to the removal of the display.

House Hearing Focuses On Human Rights Concerns of Copts In Egypt.

Yesterday two subcommittees of the U.S. House Foreign Affairs Committee held a joint hearing on Human Rights Abuses in Egypt. Taking place on Human Rights Day, the hearing focused particularly on the plight of the Coptic Christian minority in Egypt.  Video of the hearings and the full text of prepared statements by the five witnesses who testified are available on the Committee's website.

Controversy Over U.S. Commitment To Return Collection of Jewish Documents To Iraq

Religion News Service reported yesterday on the growing controversy over what the United States should do with a trove of Jewish documents, books and scrolls found in 2003 by U.S. troops in Iraq.  The items (now known as the Iraqi Jewish Archive) were discovered in the flooded basement of Saddam Hussein’s Baghdad intelligence headquarters.  They were rescued and taken back to the United States for preservation and restoration pursuant to an August 2003 Agreement (full text) between the Coalition Provisional Authority and the National Archives. That Agreement called for the return of physical custody of the documents to the Coalition Provisional Authority or its designee once preservation work was completed and a public exhibition of the collection was held. (Art. I, Par. 4).  A 2011 agreement between the State Department and the National Archives (full text) indicates that the Coalition Provisional Authority designated the Iraqi Ministry of Culture as the agency responsible for the documents.

The State Department says these agreements call for the U.S. to return the collection (some of which are now on display in the National Archives Building in Washington) to Iraq in the Summer of 2014.  Groups in the Jewish community and members of Congress are questioning the State Department's plans.  A website set up by groups representing Middle Eastern and North African Jews argues:

There is no justification, nor logic, in sending these Jewish archives back to Iraq, a place that has virtually no Jews, no interest in Jewish heritage and no accessibility to Jewish scholars or the descendants of those who once possessed them.

A bi-partisan letter to Secretary of State Kerry (full text) signed by 47 members of Congress last month argues that the collection should be returned to the descendants of the Iraqi Jewish community outside of Iraq.  It is estimated that there are only 5 Jews left in Iraq today.

Court Orders Florida Prisons To Provide Kosher Diet Alternative

In an important prisoner free exercise decision last week, a federal district court granted a preliminary injunction ordering the Florida Department of Corrections to provide a kosher diet by July 1 to all prisoners with a sincere religious basis for keeping kosher.  The decision comes in what appears to be the first Justice Department suit directly against a state for violation of the prisoner provisions of the Religious Land Use and Institutionalized Persons Act. In United States v. Secretary, Florida Department of Corrections, (SD FL, Dec. 6, 2013), the court held that the United States was likely to prevail on the merits of its claim that Florida's religious diet policy violates RLUIPA.

The court held that Florida had not shown a compelling interest in a blanket denial of kosher food to prisoners-- in part because the state argued somewhat inconsistently that it was committed to providing kosher meals to all eligible inmates. The court also rejected Florida's argument that it had a compelling interest based on cost savings, saying:

While cost control may be a compelling interest in certain situations ... RLUIPA expressly contemplates that facilitating religious exercise "may require a government to incur expenses in its own operations.''.... The costs initially identifed by Defendants in this litigation are not of a compelling magnitude.... Even if participation were ... 1,000 prisoners per day - the cost would only be $2.12 million per year, or .001 of FDOC'S budget. No compelling interest is furthered by avoiding such a relatively minor expense....

The court additionally held invalid several provisions in a proposed religious diet program that the state had developed while the litigation was pending.  These include conditioning eligibility on clergy interpretations of religious doctrine or on prisoners' knowledge of religious law; summary suspension of prisoners from the program if they consume any item not listed as kosher; and removal from the program of prisoners who eat less than 90% of available meals, even if they consume only kosher food.  (See prior related posting.) [Thanks to Luke Goodrich for the lead.]

Millett, Who Helped Author Important RFRA Brief, Confirmed For D.C. Circuit

As reported by the Washington Post, the U.S. Senate today, by a vote of 56-38, confirmed Patricia Millett to serve on the U.S. Court of Appeals for the D.C. Circuit.  Millett served as an Assistant to the Solicitor General at the U.S. Department of Justice from 1996-2007.  While serving in that role, she was one of the attorneys who wrote the U.S. government's brief in City of Boerne v. Flores, 1997 U.S. S. Ct. Briefs LEXIS 185, arguing unsuccessfully that the provisions of the Religious Freedom Restoration Act that applied to state governments represented a proper exercise of Congress's power under Section 5 of the Fourteenth Amendment.

Security Guard Pleads Guilty to Federal Charges of Defacing Religious Objects

The U.S. Attorney's Office for the Western District of Tennessee announced that 25-year old Justin Baker yesterday pleaded guilty to violating the civil rights of students and faculty of the Margolin Hebrew Academy.  Baker, a security guard at a Jackson (TN) hotel, defaced a Torah and prayer books left in a hotel meeting room by students after they used the room to conduct a Sabbath service:

Baker admitted that while employed as a security guard at the hotel, he discovered the items in the room, and defaced the Torah, the prayer books, and the musical instruments with profanity, anti-Semitic phrases, and Satanic writing. He also admitted to spitting on the Torah. Photographic evidence presented during the hearing confirmed that the Torah was defaced with profanity and phrases including "Hail Satan."

Suit Seeks Release of Files of Former Duluth Priests Accused of Abuse

According to the Duluth News Tribune, a Minnesota state court lawsuit was filed yesterday against the Catholic Diocese of Duluth on behalf of a John Doe plaintiff who says he was abused in the 1970's by Father Robert Klein, now deceased. A statement by the Diocese in response to the filing of the lawsuit says that there are several publicly known substantiated allegations against Klein, but the allegations in the lawsuit are new. The lawsuit claims that the Diocese was negligent in allowing sexual abuse to continue, and that it has created a nuisance by not releasing information about accused priests. The suit asks for release of the names and files of 17 former priests who were identified in a 2004 report as having credible allegations against them. The Diocese says that the 2004 list is imperfect, and that no priests with known accusations of sexual abuse of minors are active in the ministry in the Diocese.

Festivus Beer Can Pole Will Share Florida Capitol Rotunda With Nativity Display

In Florida, the state's Department of Management Services allows private individuals and groups to set up temporary displays in the Capitol building, so long as they go through an application process and meet certain guidelines.  The Orlando Sentinel reported yesterday that the Department has approved an application by an ACLU member to set up a 6-foot tall "Festivus" pole made from empty beer cans in the Capitol rotunda where display of a nativity scene has already been approved.  The Department of Management Services website lists the many different displays that have been approved currently and for the coming months. They include a Free Thought banner already set up by the Freedom From Religion Foundation. Pam Olsen, president of the Florida Prayer Network, said of the display honoring the Seinfeld- created Festivus holiday: "[T]hey have a right to exercise freedom of speech, that's what America is about. It doesn't faze me, it doesn't faze the God I serve." [Thanks to Eduardo Penalver via Religionlaw for the lead.]

Polish Appellate Court Refuses To Order Removal of Cross Hanging In Parliament

In Poland yesterday, the Court of Appeal in Warsaw dismissed a suit by members of Your Movement party, a liberal Polish political party, seeking to have a cross which hangs in the Plenary Hall of the Sejm (lower house of Parliament) removed. Polskie Radio reports that challengers, invoking both the Polish constitution and EU directives, argued that that the presence of the cross violates their rights to freedom of conscience and religion.  In rejecting their challenge, the court said: "The cross is a religious symbol, but its importance as a symbol of national identity and culture cannot be ignored." The court's press release on the decision (in Polish) is available online. The head of Your Movement says that they will appeal the decision to the European Court of Human Rights. (See prior related posting.)

Report On Treatment Of Non-Believers Released For Human Rights Day

Today is United Nations Human Rights Day. To mark the day, the International Humanist and Ethical Union issued a report Freedom of Thought 2013: A Global Report on the Rights, Legal Status, and Discrimination Against Humanists, Atheists, and the Non-Religious. (Full text.) Here is an excerpt from the Introduction to the 244-page report:

Freedom of Thought 2013 is the first report to look at the rights and treatment of the non-religious in every country in the world. Specifically, it looks at how non-religious individuals—whether they call themselves atheists, or agnostics, or humanists, or freethinkers or are otherwise just simply not religious—are treated because of their lack of religion or absence of belief in a god. We focus on discrimination by state authorities; that is systemic, legal or official forms of discrimination and restrictions on freedom of thought, belief and expression.....

Our results show that the overwhelming majority of countries fail to respect the rights of atheists and freethinkers. There are laws that deny atheists’ right to exist, revoke their right to citizenship, restrict their right to marry, obstruct their access to public education, prohibit them from holding public office, prevent them from working for the state, criminalize their criticism of religion, and execute them for leaving the religion of their parents. In the worst cases, the state denies the rights of atheists to exist, or seeks total control over their beliefs and actions.

Reuters reports on the study.

White House Holiday Page Now Up On Its Website

The White House has launched its 2013 Holiday Page on its website. It includes videos of White House holiday events, suggestions for crafts projects, and social media postings from White House guests about their holiday experiences. The White House is also featuring an invitation for those who interact with it regularly on Twitter, Instagram and Pinterest to register for a chance to attend an in-person White House Holiday Social on Dec. 16.

Satanists Propose Monument On Oklahoma Capitol Grounds

In 2009, the Oklahoma legislature approved the display of a privately financed Ten Commandments monument on the State Capitol grounds. (See prior posting.) Now the New York-based Satanic Temple has notified the Oklahoma State Capitol Preservation Commission that it also wants to donate a monument for the Capitol grounds. AP reported  yesterday that the Satanic Temple says its monument will be "in good taste and consistent with community standards." It will pay "homage to the historic/literary Satan."   [Thanks to Joel Sogol via Religionlaw for the lead.]

UPDATE: Others seem to have similar ideas.  In a Dec. 10 press release, the Universal Society of Hinduism said it plans to apply to Oklahoma State Capitol Preservation Commission for permission to place a statue of Lord Hanuman in the statehouse grounds.