Conviction of Monsignor For Covering Up Priest's Abuse Is Reversed

A Pennsylvania appellate court yesterday reversed the 2012 conviction of Msgr. William J. Lynn who was the first U.S. priest criminally convicted of covering up sexual molestation of minors by another priest. (See prior posting.) In Commonwealth of Pennsylvania v. Lynn, (PA Super. Ct., Dec. 26, 2013), a unanimous 3-judge panel held that the trial court had misinterpreted the Endangering Welfare of a Child statute under which Lynn was sentenced to a term of 3-6 years. (The statute was later amended.) The appellate court held that the statute under which Lynn was convicted only applied to a person who is directly in charge of a child, not to someone supervising the person in charge. Also there was insufficient evidence to convict Lynn as an accomplice to the priest's violation of the statute. According to AP, prosecutors say they will appeal yesterday's decision and Lynn cannot be released until the appeals process is completed. The appeals court yesterday denied Lynn's motion for bail pending appeal, leaving that to the trial court. (Docket Sheet setting out order.)

UPDATE: On Dec. 30, the trial court set bail for Msgr. Lynn at $250,000.  He will also be subject to electronic monitoring and must surrender his passport. (NBC 10 Philadelphia).

UPDATE 2: The Dec. 31 Philadelphia Inquirer reports that the Archdiocese of Philadelphia has posted $25,000 (apparently the amount needed for a bail bond) for the release of Msgr. Lynn.  The district attorney has strongly criticized the Archdiocese for doing so.

Top 10 Church-State and Religious Liberty Developments in 2013

As the new year approaches, here is my annual attempt at picking the most important developments of the past year.  My nominations for the 2013 Top Ten Church-State and Religious Liberty Developments are:

1. The U.S. Supreme Court in United States v. Windsor strikes down Section 3 of the Defense of Marriage Act in an opinion by Justice Kennedy that triggers judicial and legislative expansion of marriage equality to a total of 18 states and the District of Columbia by the end of 2013.

2.  Judicial challenges by Catholic- and conservative Christian-owned small businesses to the Affordable Care Act contraceptive coverage mandate generate an intense legal debate over whether corporations have religious exercise rights.  The U.S. Supreme Court grants certiorari in two cases raising the issue.

3. A decision by the New Mexico Supreme Court in Elane Photography requires a commercial photography business to serve same-sex couples on the same basis as opposite-sex couple, despite the photographer's religious objections to same-sex marriage. A preliminary Colorado administrative decision takes the same approach on wedding cakes. In a related development, Britain's Supreme Court holds that its anti-discrimination laws require Christian hotel owners to rent rooms to same-sex couples. 

4. U.S. Supreme Court hears oral arguments in Town of Greece case.  The Court will decide on the constitutionality of opening city council meetings with sectarian prayers.

5. Numerous challenges by religiously-affiliated colleges and social service agencies to a compromise that was intended to accommodate their objections to the Affordable Care Act contraceptive coverage mandate raise the issue of how to define a "substantial burden" on religious exercise under RFRA. Courts have reached differing conclusions.

6. European Court of Human Rights decides four cases from Britain on religious accommodation of Christian employee' religious beliefs. Decisions call for a case-by-case balancing approach.

7. Egypt continues to struggle with the future role of the Muslim Brotherhood (which the government now brands a "terrorist" group) and with what its constitution should say about the role of religion.

8. Federal district court strikes down most of Utah's anti-polygamy law.

9. A variety of recent cases and legislative initiatives in the U.S. and elsewhere raise the question of what qualifies as a "religion"-- Scientology, yoga, Humanism, Naturism.

10. Federal district court holds Internal Revenue Code parsonage allowance provisions violate Establishment Clause.

 I welcome reader comments taking issue with my choices. You may be interested in the somewhat different picks by the Religion Newswriters Association for its 2013 Top 10 Religion News Stories.

Japan's Prime Minister Angers China, South Korea By Visiting Controversial Shinto War Shrine

Today Japan's Prime Minister Shinzo Abe angered China and South Korea by visiting the Yasukuni Shrine, a Shinto shrine to the war dead including Japanese leaders who were convicted as war criminals at the end of World War II.  Reuters reports that today's visit was part of Abe's attempt to restore Japan's pride in its past and rewrite its wartime history. His visit, including a televised motorcade to the shrine, threatens to exacerbate longstanding strains in relations with China and South Korea.  Abe said however:

There is criticism based on the misconception that this is an act to worship war criminals, but I visited Yasukuni Shrine to report to the souls of the war dead on the progress made this year and to convey my resolve that people never again suffer the horrors of war.

Egyptian Cabinet Declares Muslim Brotherhood a "Terrorist" Group

Ahram Online reports that yesterday Egypt's Cabinet officially designated the Muslim Brotherhood a terrorist group, making it subject to Article 86 of the Egyptian penal code. According to the Washington Post, this means that hundreds of charities and non-governmental organizations affiliated with the Brotherhood will be closed down, and anyone who belongs to the Brotherhood, promotes it or funds it, will be subject to prosecution. The move comes in the wake of Tuesday's bombing of the Daqahliya security directorate in the city of Mansoura which many blame on the Brotherhood despite claims of responsibility from the Islamist militant group Ansar Beit Al-Maqdis. Some legal experts say that the terrorist designation may face legal problems on appeal, arguing that it is only the judiciary or the interim President who holds temporary legislative powers, not the Cabinet, that could make such a declaration.

The Washington Post calls yesterday's developments "a stunning turnaround for the decades-old Islamist organization, which rose to the height of political power in 2012 with the election of Mohamed Morsi — a former Brotherhood leader — as president in Egypt’s first open democratic election."

UPDATE: AP reports that on Thursday, the government arrested a number of Muslim Brotherhood members, froze the assets of 1,000 charities and NGO's linked to the Brotherhood, placed 100 Brotherhood schools under government supervision and warned that holding a leadership post in the Muslim Brotherhood could be grounds for the death penalty.

UPDATE 2: The New York Times (Dec. 26) reports:

After widespread confusion and concern about the funds cutoff, in particular, government officials partly reversed course on Thursday night, saying that the organizations whose funds had been frozen — more than a thousand of them — would be allowed access to money to continue operating.

Somalian Ministry Bans Christmas Celebrations

Ghana Web reports that yesterday in Somlia top officials of the Ministry of Justice and Religious Affairs held a news conference to announce that Chrismas celebrations would be banned in Somalia. Sheikh Ali Dhere, Director of Religious Matters at the Ministry told the news conference:

We alert fellow Muslims in Somalia that some festivities to mark Christian Days will take place around the world in this week.  It is prohibited to celebrate those days in this country.

Director General of the Ministry, Sheikh Mohamed Khayrow Aden, added that copies of the directive had been delivered to hotels and meeting places in Mogadishu. Officials said nothing about whether the ban applies to non-Muslim foreign workers and residents. This is the first time since 1991 that such a ban has been issued.

Egyptian Government Forces Seize Al Azhar

PressTV reports that in Cairo, Egypt yesterday, security forces of the army-backed Egyptian government took control of all buildings and dormitories at Al Azhar University, apparently in order to crack down on student activists.   Al Azhar is the chief center of Sunni Islamic learning in the country.

4 Oklahoma Christian Colleges Win Contraceptive Mandate Preliminary Injunction

On Monday, yet another federal district court decided a challenge by religious non-profits to the Affordable Care Act contraceptive coverage mandate final rules.  In Southern Nazarene University v. Sebelius, (WD OK, Dec. 23, 2013), an Oklahoma federal district court granted a preliminary injunction to four Christian universities-- Southern Nazarene, Oklahoma Wesleyan,  Oklahoma Baptist, and Mid-America Christian-- which object to providing coverage for contraceptives they regard as abortifacients. The court concluded that the self-certification accommodation provided for religious non-profits in the ACA final rules violates RFRA.  The court said in part:

The self certification is, in effect, a permission slip which must be signed by the institution to enable the plan beneficiary to get access, free of charge, from the institution’s insurer or third party administrator, to the products to which the institution objects. If the institution does not sign the permission slip, it is subject to very substantial penalties or other serious consequences. If the institution does sign the permission slip, and only if the institution signs the permission slip, institution’s insurer or third party administrator is obligated to provide the free products and services to the plan beneficiary. It is no answer to assert, as the government does here, that, in self-certifying, the institution is not required to do anything more onerous than signing a piece of paper.... The government’s argument rests on the premise that the simple act of signing a piece of paper, even with knowledge of the consequences that will flow from that signing, cannot be morally (and, in this case, religiously) repugnant – an argument belied by too many tragic historical episodes to be canvassed here.

The court went on to find that the government had not demonstrated a compelling interest in enforcing the mandate, saying in part:

[T]he number of exemptions and exceptions ... is not just a convenient straw man: granting that there may well be a plausible basis for every exception that has been carved out of the mandate, the government’s arguments for a compelling interest in applying the mandate in every particular to these universities ring hollow in light of the collective effect of those exceptions and exemptions.

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

Obama and Other World Leaders Send Christmas Greetings

It is Christmas Day, and political leaders around the world have broadcast or posted holiday greetings. From the White House, Christmas greetings come from President Obama in his Weekly Address, saying in part:

So many people all across the country are helping out at soup kitchens, buying gifts for children in need, or organizing food or clothing drives for their neighbors.  For families like ours, that service is a chance to celebrate the birth of Christ and live out what He taught us – to love our neighbors as we would ourselves; to feed the hungry and look after the sick; to be our brother’s keeper and our sister’s keeper.

Other world leaders have also sent Christmas greetings to their nations and the world.  Here are Christmas greetings from Canada's Prime Minister Stephen Harper. According to The Guardian, Queen Elizabeth's annual Christmas broadcast this afternoon will include  behind-the-scenes video filmed after the christening of Prince George of Cambridge. The Times of Israel reprints part of Israeli Prime Minister Benjamin Netanyahu's Christmas greetings to Christians around the world. Associated Press of Pakistan reprints the Christmas greetings sent by Pakistani President Mamnoon Hussain.  And from a not-quite head of state, here is a Christmas and New Year message from Maryam Rajavi, President elect of National Council of Resistance of Iran.

Same-Sex Marriages Move Ahead In Utah As State Continues Seeking Stay

The Salt Lake Tribune reported yesterday on the flurry of motions being filed by the state of Utah seeking to obtain a stay of the federal district court's decision handed down Friday (see prior posting) legalizing same-sex marriage in the state. On Friday morning, the district court denied a stay, and the state quickly filed its third motion with the 10th Circuit seeking a stay while it appeals the district court ruling.  The 10th Circuit had previously denied an emergency stay pending a decision by the district court on granting a stay, as well as denying an anticipatory request to stay the expected district court's refusal of a stay. (Full text of order.)  Meanwhile, according to yesterday's Deseret News, approximately 700 same-sex marriage licenses have been issued across the state since Friday.  Some county clerks, however, are still refusing to issue same-sex licenses, and a lawsuit has been filed by a same-sex couple against the Utah County clerk's office to force them to issue a license.  Cache County officials closed the Clerk's office completely, stopping issuing traditional marriage licenses as well.

UPDATE: The Salt Lake Tribune reports that around 6 p.m., Dec. 24, the 10th Circuit again denied the state's motion for a stay of the district court's order. A spokesman for the Utah attorney general's office said that any county clerks that continue to refuse to issue licences to same-sex couples risk being held in contempt of court. Here is the full text of the order denying a stay during appeal, and which also directs expedited consideration of the appeal of the district court decision. ScotusBlog reports that Utah will file an appeal of the denial of a stay with the U.S. Supreme Court on Thursday.

Clergy Abuse Lawsuit Settled By Diocese and Religious Order

The Kansas City Star reported Sunday on the settlement this month of a clergy sex abuse lawsuit filed against Catholic priest James Urbanic by a man who alleges that, as a high schooler, he was sexually abused by Urbanic in the 1970's.  Also named as defendants in the lawsuit are the Kansas City-St. Joseph (MO) Diocese and Urbanic's religious order, Missionaries of the Precious Blood, each of whom contributed half of the $130,000 settlement.  Urbanic taught religion at a Catholic high school in St. Joseph. The suit alleges that the Diocese and the religious order failed to take action when they received reports about Urbanic in the 1970's.  It was only after a 2011 investigation that Urbanic was removed from the public ministry.

Two Pennsylvania Religious Non-Profit Cases Rule Against Contraceptive Mandate Accommodation

In Perisco v. Sebelius, (WD PA, Dec. 20, 2013), a Pennsylvania federal district court granted the unopposed motion by the Catholic Diocese of Pittsburgh and the Catholic Diocese of Erie to convert a preliminary injunction against enforcement of the contraceptive coverage mandate granted in November (see prior posting) into a permanent injunction. The permanent injunction provides that the bishops will not have to authorize any charitable or educational entity under their control to sign the self-certification form called for in the final Affordable Care Act rules that set up an accommodation for religious non-profits, and that various charitable and educational affiliates will not need to comply with the mandate. In a statement following the decision, Pittsburgh Bishop David Zubik said that the government now is likely to appeal the decision to the 3rd Circuit. Pittsburgh Post-Gazette reports on the decision.

In Geneva College v. Sebelius, (WD PA, Dec. 23, 2013), a Pennsylvania federal district court granted a preliminary injunction, upholding Geneva College's objection under RFRA to complying with the final Affordable Care Act rules creating an accommodation for religious non-profits that object to the contraceptive coverage mandate. In June, the court had already granted Geneva College a similar preliminary injunction in connection with its student health insurance policies. (See prior posting.)  Now it has granted a similar injunction as to the College's health plan for its employees, finding that requiring the College to submit the self-certification form called for by the final rules likely creates a substantial burden on Geneva's religious exercise:

... [I]ts submission of the self-certification form is not too attenuated from the provision of the objected to services. Instead, it is the necessary stimulus behind their provision.... Courts should not undertake to dissect religious beliefs and second-guess where an objector draws the line when analyzing substantial burden questions.

Pittsburgh Post Gazette reports on the decision.

Ohio Must Recognize Same-Sex Spouses On Death Certificates

In Obergefell v. Wymyslo, (SD OH, Dec. 23, 2013), an Ohio federal district court today in a 50-page opinion held that despite its statutory and constitutional provisions to the contrary, Ohio must recognize same-sex marriages that were validly performed in other states for purposes of indicating on an Ohio death certificate the deceased's marital status and the identity of the surviving spouse. The court said in part:

... [U]nder the Constitution of the United States, Ohio must recognize valid out-of-state marriages between same-sex couples on Ohio death certificates, just as Ohio recognizes all other out-of-state marriages, if valid in the state performed, and even if not authorized nor validly performed under Ohio law, such as marriages between first cousins, marriages of certain minors, and common law marriages. 

That is, once you get married lawfully in one state, another state cannot summarily take your marriage away, because the right to remain married is properly recognized as a fundamental liberty interest protected by the Due Process Clause of the United States Constitution. U.S. Const. amend. XIV, § 1.

Moreover, as this Court held in its initial Orders this summer and reaffirms today, by treating lawful same-sex marriages differently than it treats lawful opposite sex marriages (e.g., marriages of first cousins, marriages of certain minors, and common law marriages), Ohio law, as applied to these Plaintiffs, violates the United States Constitution’s guarantee of equal protection.... 

The court's decision does not invalidate Ohio's refusal to issue marriage licenses for same-sex marriages in the state.  The court says that there is a possibility the state's concerns about same-sex marriage are more compelling in the context of marriage creation than in the context of marriage recognition. Reporting on today's opinion, AP says that Ohio will appeal the decision.

New IRS Exempt Organizations Director Designated

BNA Daily Report for Executives (subscription required) reported Friday that Tamera Ripperda, now in the IRS Large Business and International Division, will be appointed the new director of the Internal Revenue Service's Exempt Organizations unit. Ripperda will succeed former director Lois Lerner who retired in a controversy over the handling of applications from various conservative groups for tax exempt status.

Indiana Appeals Court: Sex Change of Spouse Does Not Invalidate Marriage Despite Same-Sex Marriage Ban

In In re Marriage of Melanie Davis and Angela Summers, (IN App., Dec. 20, 2013), the Indiana Court of Appeals held that a marriage between a man and a woman that is valid when  entered does not become void when one of the spouses is diagnosed with gender dysphoria and has his or her birth certificate amended to reflect a change in gender.  Even though Indiana law bars same-sex marriage, this ban does not apply to a marriage that is valid in Indiana when entered. [Thanks to William Baude at Volokh Conspiracy for the lead.]

Recent Articles and Publications of Interest

From SSRN:

• Anne Herzberg, Second Class Rights: How Amnesty International & Human Rights Watch Fail Women in the Middle East, (December 16, 2013).
• Dian Kartika Rahajeng, Sharia Governance: Sharia Supervisory Board Model of Islamic Banking and Finance in Indonesia, (December 11, 2013).
• Alex Reed, Playing Devil's Advocate: The Constitutional Implications of Requiring Advocacy Organizations to Present Opposing Viewpoints, (New York University Review of Law & Social Change, Vol. 37, No. 3, 2013).

From SmartCILP and elsewhere:

• Michael C. Dorf, Liberalism's Errant Theodicy. (Reviewing James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues), 93 Boston University Law Review 1469-1479 (2013).
• Steven H. Sholk, A Guide To Election Year Activities of Section 501(c)(3) Organizations, (June 7, 2013).
• USCIRF Policy Brief, Egyptian Constitutional Review: Initial Analysis of the Provisions on Freedom of Religion or Belief and Related Rights in the December 2013 Egyptian Draft Constitution, (December 2013).

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.