Unauthorized Class Action Sought Millions For Denial of Religious Freedom and Right To Marry By Utah and LDS Church

Last Friday, a class action was filed in federal district court in Utah against the state of Utah and the LDS Church on behalf of "all persons denied freedom of religion and the right to marry"-- at least 500 people according to the complaint.  The complaint (full text) in Winburn v. State of Utah, (D UT, filed Dec. 27, 2013), describes the LDS Church as "an entity of defendant State of Utah," and alleges violations of the Fair Debt Collection Act, the Utah Pattern of Unlawful Activity Act and intentional infliction of emotional distress. It seeks damages of at least $25,000 for each class member. Yesterday, the lead plaintiffs in the case filed a "Notice of Voluntary Dismissal" (full text). The plaintiffs, Pidge Winburn and Amy Fowler-- a same-sex couple who were married on Dec. 23 after a federal court invalidated Utah's ban on same-sex marriage-- say they did not authorize the lawsuit, never spoke to the attorney who filed it, and learned of it only through a phone call from a reporter.  Apparently attorney E. Craig Smay who filed the suit learned of Winburn and Fowler through a feature article about them in the Dec. 26 Salt Lake Tribune.  According to yesterday's Salt Lake Tribune, Fowler says she plans to file a formal bar complaint against the attorney.

Utah Seeks Stay From U.S. Supreme Court of District Court's Same-Sex Marriage Decision

As reported by Lyle Denniston at SCOTUSblog, yesterday the state of Utah filed an Application (full text) seeking an immediate stay pending appeal of the Dec. 20 federal district court decision in Kitchen v. Herbert which barred Utah from enforcing its ban on same-sex marriage.  The district court and 10th Circuit have both denied stays. As required by Supreme Court rule, the stay application was filed with Justice Sotomayor, the Justice assigned to the 10th Circuit.  Late yesterday afternoon, Justice Sotomayor asked for a response from respondents by noon on Friday.  It appears that Utah's governor and attorney general have retained an outside law firm to handle the attempt to obtain Supreme Court review.  A Boise, Idaho firm is listed as petitioners' counsel, with counsel of record being the firm's senior partner Monte Neil Stewart who was a law clerk for Chief Justice Warren Burger and is the founder of the Marriage Law Foundation.

Utah's application for a stay argues that it is likely that the district court will be reversed on appeal, and if that happens without a stay the state will be faced with the problem of whether and how to unwind the many marriages that will have occurred in the interim. AP reports on Utah's efforts.

Justice Sotomayor and 3 Circuits Rule On Injunctions Pending Appeals By Non-Profits In Contraceptive Mandate Cases

With the approach of  the Jan. 1, 2014 effective date for the Affordable Care Act contraceptive coverage accommodation for religious non-profits (Final Rules in Federal Register), three circuit courts and a Supreme Court Justice yesterday ruled on motions for injunctions pending appeals by non-profits who lost at the district court level.

• The 7th Circuit denied Notre Dame University's emergency motion for an injunction pending appeal, but ordered expedited briefing and oral argument. (Full text of order.) (See prior related posting.) 
• The 10th Circuit denied Little Sisters of the Poor's emergency motion for an injunction pending appeal. (Full text of order.) (See prior related posting.) However late in the evening, Justice Sotomayor issued a temporary injunction blocking enforcement, and ordered a response by the federal government by 10:00 AM on Friday. (Full text of order from SCOTUSblog.)
• The D.C. Circuit, by a 2-1 vote, granted emergency motions for injunctions pending appeal filed by by Priests for Life (see prior posting) and by the various plaintiffs (other than Thomas Aquinas College that prevailed below) in the Roman Catholic Archbishop of Washington case. (Full text of motion.) Judge Tatel filed a dissenting opinion. The court also ordered the two cases consolidated for appeal. (Full text of Order and Opinion).  Appellants in both cases reacted in press releases. (Statement of Archdiocese; Statement of Priests for Life.)

 [Thanks to Stephen Blakeman for the lead.]

Happy New Year 2014!

Dear Religion Clause Readers:

Happy New Year! The past year was unusual in the extent to which two developments often seemed to dominate Religion Clause's coverage-- reactions to same-sex marriage and opposition to the Affordable Care Act contraceptive coverage mandate.  However, many other interesting and challenging religious liberty and church-state items also filled 2013.

As we enter 2014, I want to again thank all of you who read Religion Clause-- both long-time followers and those who have discovered the blog more recently. And thanks to all of you who send me leads or corrections. Your input is important in maintaining completeness and accuracy. I read all of your e-mails and comments and appreciate receiving them, even though time constraints often prevent me from replying individually. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want to be mentioned, I will be happy to honor that request if you let me know when sending me information.

Religion Clause's established format of neutrality, broad coverage and links to extensive primary source material has made it a widely-recognized authoritative source for keeping up on church-state and religious liberty developments around the world. Often Religion Clause carries a story well before mainstream media feature it. This year, for the fifth time in 7 years, Religion Clause was named by the ABA Journal as one of the 100 top blogs for a legal audience.

I am of course always considering whether any changes in format or coverage would make the blog more useful.  This year I changed the blog's template a bit-- to mixed reviews.  I have also begun to add subject tags to my posts to allow readers to find other blog entries covering similar subject matter.  I will not, however, have the time to retroactively add tags to the over 15,000 past blog posts that are in the Religion Clause database.  I welcome any comments or suggestions you have regarding Religion Clause. Feel free to post them as a comment to this blog entry, or to e-mail them to me at religionclause@gmail.com.

The Sitemeter shows that Religion Clause has attracted over 1,544,000 visits since I created the blog in 2005. Around 206,500 of these visits came in 2013. Sitemeter, however, is becoming a less and less reliable measure of readership.  First, the Sitemeter server which measures visits to Religion Clause suffered severe technical problems for at least two months this year. Also, a number of visits by automated bots are counted by Sitemeter. This overestimates real readers of the blog.  At the same time, readers are undercounted because of the increasing numbers who are following Religion Clause through Twitter, Facebook, Feedly, Blogger, FeedBlitz and similar services that make access more convenient. (Information about many of these alternatives are available in the blog's sidebar.)  Reading of posts, or of post headlines, through these routes is not measured by Sitemeter.  Only click-throughs are registered.

Ultimately, however, raw numbers are not as important as the quality of the audience and the usefulness of the blog to readers. On this score, I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, persons at governmental agencies, and others working professionally dealing with church-state relations and religious liberty concerns.  I encourage you to recommend Religion Clause to colleagues and friends who might find it of interest, and to link to specific posts and share them on social media.

Finally, I remind you that in addition to the postings, the Religion Clause sidebar contains links to a wealth of resources.

Best wishes for 2014!  It promises to be another year of interesting legal and political change.

Howard M. Friedman

EEOC Wins Settlements In 3 Religious Discrimination Cases

During the past two weeks, the EEOC announced the settlement of three religious discrimination lawsuits. Each involves damages for the individual victim(s) as well as changes in the company's anti-discrimination policies and/or its training for managers and employees:

• McDonald's Restaurants of California agreed to pay $50,000 and reinforce training in order to settle charges that it refused to permit a Muslim employee, a crew trainer, to grow a beard for religious reasons. The refusal led to his constructive discharge. (Dec. 20 EEOC press release.) 
• Two companies which operate a chain of Kentucky Fried Chicken restaurants in North Carolina agreed to pay $40,000, adopt a formal religious accommodation policy and conduct annual training to settle charges that it fired a female Pentecostal employee after she refused for religious reasons to comply with dress code requirements that she wear pants. (Dec. 23 EEOC press release.)
• A federal district court entered a consent decree settling charges that Dynamic Medical Services, a Florida medical and chiropractic services provider, required a number of its employees to spend at least half their work days in courses that involved  Scientology religious practices, instructed employees to attend courses at the Church of  Scientology, and told one employee to undergo a Scientology "audit." Two employees were terminated when they refused to participate.  The company agreed to pay $170,000 in damages to 8 employees or former employees, and in the future to accommodate employees who object on religious grounds to participating in religious courses or other religious work-related activities. (Dec. 23 EEOC press release.)

Pakistani Court Imposes Death Sentence For Blasphemy On 2 Who "Saw God"

In Multan, Pakistan on Saturday, a trial court judge sentenced two men to death on blasphemy charges. According to Sunday's Express Tribune, 34-year old Riaz Ahmed and 38-year old Ijaz Ahmed in 2011 claimed they had seen God and invited others to join them in their union with God through Chaman Sarkar. The judge also fined each of the defendants the equivalent of $946 (US).

Nonsectarian Council Invocations O.K. Under California Constitution

According to the Eureka (CA) Times-Standard, a California state Superior Court judge has rejected a broad facial state constitutional challenge to all prayers at city council meetings.  In Beaton v. City of Eureka, (Humboldt Cty. Super. Ct., Dec. 24, 2013) the court held that the city's policy allowing voluntary, nonsectarian invocations does not violate the California Constitution. However, the court held that plaintiff may challenge particular invocations as violations of the Establishment, No Preference or No Aid clause of the California Constitution.

New Poll: American's Beliefs On Evolution Differ Significantly Based On Politics, Religion

The Pew Research Center yesterday released a new poll titled Public's View on Human Evolution. The U.S. adults surveyed were asked whether, in their view, humans and other living things have evolved over time, or instead have existed in their present form since the beginning of time.  Overall, 60% said that living things have evolved, while 33% said they have always existed in their present form. However significant percentage differences were reflected in different subgroups. 64% of White Evangelical Protestants, but only 15% of White Mainline Protestants, believe that evolution did not occur. Also, 48% of Republicans, but only 27% of Democrats and 28% of Independents believe that living things have always existed in their present form.  In 2009, only 39% of Republicans believed this, while 30% of Democrats did. Those who believed that evolution had occurred were also asked whether they believe that a Supreme Being guided evolution. Overall, 24% said that was the case, again with differences between subgroups.

First Woman On Pakistan's Shariat Court Sworn In

Pakistan's Daily Times reports that the first female judge to serve on Pakistan's Federal Shariat Court was sworn in yesterday. The new Muslim Judge is 56-year old Ashraf Jehan who was previously serving as an additional judge at the Sindh high court. Under Chapter 3A of Pakistan's Constitution, the Federal Shariat Court has jurisdiction to decide whether any federal or provincial law is inconsistent with Sharia, and thus invalid.  The court may also review criminal court decisions involving Hudood Ordinances. Shariat Court judges are appointed by the President of Pakistan.

Obama's Sparse Attendance At Church Services Analyzed

Yesterday's New York Times carries an analysis of President Obama's personal faith and church service attendance. Triggered by the Obama family's decision last week not to attend church services on Christmas, the article reports:

Mr. Obama has gone to church 18 times during his nearly five years in the White House, according to Mark Knoller of CBS News, an unofficial White House historian, while his predecessor, Mr. Bush, attended 120 times during his eight years in office.

But those numbers do not reflect the depth of Mr. Obama’s faith, said Joshua DuBois, the former head of the White House Office of Faith-Based and Neighborhood Partnerships. “President Obama is a committed Christian,” said Mr. DuBois, who sends the president a daily devotional by email, and is the author of “The President’s Devotional.”

Maldives Parliament Sends Penal Code Back To Committee Over Concerns About Consistency With Sharia Law

In the Maldives yesterday, Parliament rejected a draft of a new Penal Code that has been under review by Parliamentary committees for seven years.  Minivan News reports that the proposed law-- the first draft of which was prepared by University of Pennsylvania law professor Paul Robinson-- was sent back to committee for more revisions. Many of the opponents of the current draft say that it does not adequately reflect Sharia law. In particular they are concerned that it does not reflect certain fixed punishments required by Islamic law. More broadly, another lawmaker reflected the view of some scholars that it is blasphemous to "rephrase divine laws in Islamic Sharia into separate articles in a law." The Maldives claims to be 100% Muslim. Other critics were concerned about the short time (3 days) the bill was open for amendments from the floor of Parliament.  A Dec. 24 Minivan News article has further background on the proposed Penal Code and links to the two volumes of text and commentary.

New Bibliography and Recent Articles of Interest

The AALS Section on Law and Religion has issued its Dec. 2013 Newsletter which includes a comprehensive bibliography of relevant books and articles published during 2013, as well as a list of blogs relating to law and religion. The articles and blogs are all hyperlinked.

From SSRN:

• Chee Ying Kuek & Eng Siang Tay, Religious Conversions and the Conflicts between Civil and Islamic Law of Inheritance in Malaysia, (Malayan Law Journal, 2013).
• James Q. Whitman, The Transition to Modernity, (Oxford Handbook of Criminal Law (M. Dubber and T. Hörnle, eds.), Forthcoming).
• Daniel Marc Weinstock, Conscientious Refusal and Health Professionals: Does Religion Make a Difference?, (Bioethics, Vol. 28, Issue 1, pp. 8-15, 2014).
• Marc Greendorfer, Blurring Lines between Churches and Secular Corporations: The Compelling Case of the Benefit Corporation’s Right to the Free Exercise of Religion, (December 27, 2013).
• Deborah A. Widiss,  Leveling Up after DOMA, Indiana Law Journal, Vol. 89, 2014, Forthcoming).

Court Rejects Challenge To University's Severing of Ties With Chabad House For Alcohol Violations

In Lubavitch-Chabad of Illinois, Inc. v. Northwestern University, (ND IL, Dec. 19, 2013), an Illinois federal district court upheld Northwestern University's decision to end its official recognition of a Jewish student religious center operated by Chabad so long as Rabbi Dov Klein was Chabad's representative on campus.  The University ended its affiliation with the Chabad House because Rabbi Klein had repeatedly served alcoholic beverages there to underage students in connection with religious meals and celebrations.  The court rejected claims that the University's actions violated 42 USC Sec. 1981 (racial discrimination in the making of contracts) and Title VI of the 1964 Civil Rights Act because the complaint alleged religious, not racial or ethnic, discrimination.  The court also concluded that plaintiffs had not demonstrated that any religious or ethnic discrimination was involved in the disaffiliation. The Daily Northwestern, reporting on the decision, says that plaintiffs plan to appeal. Failed Messiah blog also reports on the decision.

Colorado Federal Court: Contraceptive Mandate Accommodation Imposes No Substantial Burden On ERISA-Exempt Church Plans

In Little Sisters of the Poor Home for the Aged v. Sebelius, (D CO, Dec. 27, 2013), a Colorado federal district court denied a preliminary injunction to two non-profit homes controlled by Little Sisters of the Poor which sued to challenge the contraceptive coverage mandate accommodation under the Affordable Care Act. The homes provide health coverage to their employees through a self-insured "church plan" administered by a Catholic-affiliated non-profit corporation.  The court held that no substantial burden was placed on plaintiffs' religious exercise because "church plans" are exempt from ERISA under which the mandate accommodation is enforced. Little Sisters of the Poor only needs to fill out the self-certification form and provide it to its third-party administrator. According to the court:

It is undisputed that Christian Brothers Services is the third party administrator for the Trust.... Christian Brothers Services does not currently provide the Trust’s beneficiaries with access to sterilization, contraception, and abortion-inducing drugs and services, and it does not intend to do so in the future.... Defendants concede that they have no regulatory authority to require Little Sisters or the Trust to contract with a different third party administrator.... Thus, the Final Rules do not require Little Sisters or the Trust to designate, authorize, or create a provider-insured relationship with any third party that will provide their employees with access to contraception, sterilization, or abortifacients.

The Baltimore Sun reported yesterday that plaintiffs immediately filed an appeal and are seeking an injunction to block any fines while the appeal is pending.

Recent Prisoner Free Exercise Cases

In Jenkins v. Urbina, 2013 U.S. Dist. LEXIS 169072 (ED CA, Nov. 22, 2013), a California federal magistrate judge dismissed a claim by an inmate that his free exercise and RLUIPA rights were violated when a correctional officer took property that included Native American items such as beads, sewing needles, choker, and feathers, from plaintiff's cell.

In Strickland v. Texas Department of Criminal Justice, 2013 U.S. Dist. LEXIS 179687 (SD TX, Dec. 23, 2013), a Texas federal district court permitted a Muslim inmate to proceed with his claim for declaratory and injunctive relief against one defendant. Plaintiff complains that he has been denied halal meals or the kosher diet provided to Jewish inmates.

In Strong v. Livingston, 2013 U.S. Dist. LEXIS 179009 (SD TX, Dec. 20, 2013), a Texas federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 179856, Oct. 17, 2013) and granted a preliminary injunction to allow a Muslim inmate to wear a one-quarter inch beard.

In Williams v. Fluaitt, 2013 U.S. Dist. LEXIS 179999 (ED WA, Dec. 23, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 180003, Nov. 4, 2013) and dismissed a Muslim inmate's complaint that his rights were violated when he was not given special Ramadan meals in 2011 because he failed to comply with the sign-up procedure to participate.

In Rupe v. Beard, 2013 U.S. Dist. LEXIS 180415 (ED CA, Dec. 23, 2013), a California federal district court dismissed a Druid inmate's complaints that prison authorities failed to provide facilities for Druid worship such as a sweathouse, fire pit and food for Druid feasts; did not allow Druids on space provided for Pagan worship and instead required Durids to worship in the general population yard, and did not provide Pagan chaplains.

Decisions In Non-Profit Challenges To Contraceptive Mandate Accommodation Continue To Be Issued

As health insurance decisions for the new year need to be made, decisions continue to be handed down by federal district courts in cases brought by religious non-profits challenging the adequacy of the accommodation created by the final contraceptive coverage rules under the Affordable Care Act.

In Michigan Catholic Conference v. Sebelius, (WD MI, Dec. 27, 2013), a Michigan federal district court refused to grant a preliminary injunction in a suit by Michigan Catholic Conference and Catholic Family Services of Kalamazoo. The court rejected RFRA, free exercise, free speech, Establishment Clause and "Weldon Amendment" challenges.  On the crucial issue of whether, under RFRA, the rule impose a substantial burden on plaintiffs' free exercise of religion, the court said in part:

although Plaintiffs assert that the accommodation requires them to participate in a scheme to provide contraceptives, in fact, it just does the opposite. It provides a mechanism for employers with religious objections to contraceptives, like Catholic Charities, to opt out of that scheme. This mechanism simply requires Plaintiffs to state that they choose to opt out based on their religious beliefs. The fact that the scheme will continue to operate without them may offend Plaintiffs’ religious beliefs, but it does not substantially burden the exercise of those beliefs.

In Diocese of Fort Wayne-South Bend, Inc. v. Sebelius, (MD IN, Dec. 27, 2013), an Indiana federal district court granted a preliminary injunction, finding that the Diocese affiliated charitable, educational and health care affiliates are reasonably likely to succeed on the merits of their RFRA challenge to the contraceptive coverage rules. The court said in part:

The plaintiffs have established that the accommodation compels them to facilitate and serve as the conduit through which objectionable contraceptive products and services are ultimately provided to their employees, in violation of their unquestionably sincerely held religious beliefs. While it is true that prior to the ACA's enactment, plaintiffs had notified their insurers/TPAs that objectionable contraceptive services were to be excluded from their health plans, never before had that notification triggered the provision of the services, nor were plaintiffs designating another to provide the services.

The court held that even though the Diocese itself is an exempt religious employer, it too has been burdened by the rule:

the Diocese is forced to modify its behavior and incur substantial costs to stay grandfathered under the ACA, or else it will be compelled to violate its religious beliefs by having Catholic Charities’ employees provided with a plan that covers objectionable contraceptive services....

In a separate decision using similar reasoning, the same Indiana federal district court judge granted a preliminary injunction to two Christian colleges-- Indiana-based Grace College and Seminary, and California-based Biola University-- shielding their employee and student health care plans from the arrangement that would have provided coverage directly from insurers or third-party administrators.  In Grace Schools v. Sebelius, (MD IN, Dec. 27, 2013) the court concluded that the mandate and the accommodation impose a substantial burden on plaintiffs' religious exercise.

DC Circuit Denies Preliminary Injunction To Non-Liturgical Navy Chaplains Challenging Promotion Procedures

In the long-running challenge to Navy procedures for promoting members of the Chaplain Corps, the D.C. Circuit Court of Appeals yesterday affirmed the district court's denial of a preliminary injunction.  In In re: Navy Chaplaincy, (DC Cir., Dec. 27, 2013), the court ruled against  a group of current and former Navy chaplains and two chaplain-endorsing agencies who claim that the makeup and voting procedures of the Navy's selection boards create a preference for Catholics and liturgical Protestants over various non-liturgical denominations. The court rejected plaintiffs' equal protection claims, agreeing with the district court that plaintiffs' had not shown direct evidence of discriminatory intent in the adoption of the challenged policies that are neutral on their face, nor had they shown sufficiently disparate impact to infer unconstitutional discriminatory intent. The court also rejected plaintiffs' Establishment Clause challenge, finding that a reasonable observer reviewing the data on promotions would not perceive a message of governmental endorsement of liturgical denominations.

3 Religiously Affiliated Schools Win Texas Federal Court Injunction Against Contraceptive Mandate

Today in  East Texas Baptist University v. Sebelius, (SD TX, Dec. 27, 2013), a Texas federal district court enjoined the government from enforcing the Affordable Care Act contraceptive coverage mandate against two Baptist universities and a Presbyterian seminary.  The court concluded that under RFRA the contraceptive mandate accommodation calling for objecting religious non-profits to complete a self-certification form imposes a substantial burden on the schools' free exercise rights. The contraceptive coverage that the schools' employees then receive directly from the insurance company or policy's third-party administrator is causally connected to acts the schools have performed:

It is the insurance plan that the religious-organization employer put into place, the issuer or TPA the employer contracted with, and the self-certification form the employer completes and provides the issuer or TPA, that enable the employees to obtain the free access to the contraceptive devices that the plaintiffs find religiously offensive.

Becket Fund issued a press release announcing the decision.

Preliminary Injunction Denied In Contraceptive Mandate Challenge By Nashville Diocese Affiliates

In Catholic Diocese of Nashville v. Sebelius, (MD TN, Dec. 26, 2013), a Tennessee federal district court refused to grant a preliminary injunction in a lawsuit brought by the Diocese of Nashville, its affiliated Catholic Charities, and several other affiliated organizations including Aquinas College challenging the Affordable Care Act contraceptive coverage mandate.  The court held that plaintiffs had not shown a likelihood of success on their RFRA, free exercise, free speech and Establishment Clause claims. Finding that the accommodation for religious non-profits does not impose a substantial burden under RFRA, the court said that the burden imposed by the self-certification process required to trigger the accommodation "is too attenuated and speculative to be substantial."  It explained:

Plaintiffs bear no costs for the services and nothing is provided unless a third party employee independently requests the services from yet another third party – the insurer. It is only the independent actions of third parties that result in anyone obtaining contraceptive services.

Tom Monaghan Non-Profits Sue Challenging Contraceptive Mandate

A press release from the Thomas More Law Center reports that on Dec. 20  a new lawsuit challenging the Affordable Care Act contraceptive coverage mandate was filed on behalf of five non-profit corporations, all founded by Catholic philanthropist and Domino Pizza founder Tom Monaghan. The entities suing are the Ave Maria Foundation, Ave Maria Communications, Domino’s Farms Petting Farm, Rhodora J. Donahue Academy Inc., and the Thomas More Law Center. The complaint in Ave Maria Foundation v. Sebelius, (ED MI, filed 12/20/2013) was filed after plaintiffs were unsuccessful in their attempts to join in either of two other similar pending lawsuits.  On Dec. 23, shortly after bringing the new lawsuit, plaintiffs filed an Emergency Motion Motion for a Temporary Restraining Order and a Brief In Support (full text). The brief asserts that all of the plaintiffs" are nonprofit corporations that were founded upon, adhere to, and strive to further, the teachings of the Roman Catholic Church." The Thomas More Law Center, one of the plaintiffs as well as counsel for all the plaintiffs, is a non-profit public interest law firm based in Ann Arbor, Michigan that has filed numerous lawsuits defending religious freedom and pro-life positions.

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.]