Utah Will Deny New Benefits To Same-Sex Couples While Appeals Are Pending

As previously reported, on Dec. 20 a federal district court in Utah struck down Utah's ban on same-sex marriage.  However on January 6 the U.S. Supreme Court temporarily stayed the district court's order while an appeal is working its way through the 10th Circuit.  This left Utah authorities to figure out the status of some 1000 same-sex couples who were married in the state between Dec. 20 and January 6.  Yesterday Utah Attorney General Sean Reyes issued an Official Statement on how those marriages will be treated for now:

... We are unable to reach a legal conclusion as to the ultimate validity of marriage  between persons of the same sex who completed their marriage ceremony in Utah between Dec 20, 2013 and Jan. 6, 2014. That question remains unanswered and the answer will depend on the result of the appeal process.

The Office of the Attorney General has advised the Governor in this case and will continue to work with the Governor and the individual agencies as they evaluate the application of specific policies and benefits within their agencies. A review team has been established to advise on a case-by-case basis.....

While the ultimate validity of such marriages is subject to the decision of a higher court, it is clear that the State is bound by law to limit any benefits attaching after the stay.

CNN reports that the governor's office has advised all state cabinet officials that "state recognition of same-sex marital status is ON HOLD until further notice."

Sikh Woman Sues After Go Kart Facility Cuts Her Hair To Free Her In Accident

Courthouse News reported Tuesday on a suit filed recently in Chicago's Cook County (IL) Circuit Court by a Sikh woman who is distressed that the operators of a Go Kart track insisted on cutting her hair to free her after her hair was sucked into the engine of the Go Kart she was driving. Friends with Holly Hanjra at the time insisted that the staff of  Melrose Grand Prix call 911 rather than cut Hanjra's hair, because of its religious significance. The suit seeks damages for assault and battery; emotional distress; willful, wanton and negligent misconduct; and negligent hiring, retention and supervision.

Satanic Temple Releases Proposed Design For Oklahoma Capitol Monument

The New York-based Satanic Temple has released its proposed design for a monument it wishes to erect on the Oklahoma State House grounds to complement the Ten Commandments monument placed there in 2012.  According to Monday's National Journal:

The proposed monument features a 7-foot-tall Baphomet, a goat-headed creature which is sometimes used as a stand-in for Satan. The demon's lap, flanked by a smiling child on each side, will double as a seat for visitors.

The Temple has exceeded its $20,000 goal to pay for the statue, raising more than that on the crowd funding site Indiegogo. The Oklahoma Capitol Preservation Commission has placed all applications on hold while a challenge to the Ten Commandments monument by the ACLU works its way through the courts. (See prior posting.)

Massachusetts City Votes To Move Nativity Scene Back To City Hall

In Lowell, Massachusetts, the issue of December holiday displays has arisen early this year.   Today's Lowell Sun reports that City Council voted unanimously yesterday to approve a motion requesting that the Nativity scene which last year was moved to church property be returned this December to its traditional location at the plaza next to City Hall.  The motion also calls for the city to study how the display can be expanded to honor other traditions and cultures.  The display was moved last year after complaints and a legal review which concluded that the display posed constitutional problemss. Council member Rita Mercier who sponsored the motion to bring the display back to City Hall said yesterday: "I don't worry about what other people think. I worry about who that figure laying in the manger represents. I fear what he thinks."

Los Angeles County Seal Changed To Add Cross Atop Depiction of Mission Building

According to the DiamondBar-Walnut Patch, the Los Angeles County Board of Supervisors yesterday created a new Establishment Clause controversy, voting 3-2 to approve a motion (full text) to modify the county seal to add a cross atop the depiction of the San Gabriel Mission already on it.  A version of the seal that the county adopted in 1957 had included a cross.  In 2004 the ACLU objected and the county redesigned the seal to eliminate the cross and change other images on it. (Background.) The new seal depicted the San Gabriel Mission without a cross because in 2004 the cross that used to be on the Mission had been removed for retrofitting after an earthquake.  In 2009 the cross was reattached to the Mission.  Supporters of yesterday's change say that the depiction of the Mission had become "artistically and architecturally inaccurate."  Opponents say that argument is disingenuous.

Utah AG Studying Status of Same-Sex Marriages Already Performed In the State

Following yesterday's Supreme Court order that halts same-sex marriages in Utah while the appeal in Herbert v. Kitchen makes its way through the 10th Circuit, the status of same-sex couples who have married since the Dec. 20 district court decision allowing them is uncertain.  Yesterday the Utah Attorney General's Office issued an Official Statement  saying that it "is carefully evaluating the legal status of the marriages that were performed since the District Court’s decision and will not rush to a decision that impacts Utah citizens so personally." It explained:

There is not clear legal precedence for this particular situation. This is the uncertainty that we were trying to avoid by asking the District Court for a stay immediately after its decision.  It is very unfortunate that so many Utah citizens have been put into this legal limbo.

Noah Feldman has an interesting discussion of the Supreme Court's action at Bloomberg Opinion.

Egyptian President Visits Coptic Pope To Extend Greetings For Orthodox Christmas, Celebrated Today

Today, Orthodox Christians, including the Coptic Christian community in Egypt, celebrate Christmas. (As explained by Al Ahram, the difference in dates from Western Christianity results from continued use of the Julian calendar by Orthodox Christians.) According to Catholic News Service, on Sunday Egypt's interim President Adly Mansour visited Coptic Pope Tawadros II at the papal seat in St. Mark's Coptic Orthodox Cathedral in Cairo to personally extend Christmas greetings and appreciation to the Coptic community which has continued to suffer attacks since the military takeover of the government. This is the first visit of an Egyptian president to the Cathedral in over 40 years.

Supreme Court Grants Stay Blocking Further Same-Sex Marriages In Utah While Appeal Is Pending

The U.S. Supreme Court this morning issued a stay (full text)  pending completion of a pending expedited appeal to the 10th Circuit in Herbert v. Kitchen, (Docket No. 13A687). In the case, a Utah federal district court issued an injunction allowing same-sex marriages in Utah. (See prior posting.) The application for a stay was initially made to Justice Sotomayor (see prior posting) who referred it to the full court. SCOTUSblog has more on the Supreme Court's action.

Commentary: Little Sisters of the Poor Case Generating Heated Political Debate

The New Year's Eve temporary injunction issued by Justice Sonia Sotomayor to prevent immediate enforcement of the ACA contraceptive coverage mandate compromise against the Little Sisters of the Poor has quickly generated extensive debate.  At one level, the case itself turns on the kind of legal technicalities that usually cause the non-lawyer's eyes to glaze over--the exact wording of the fine print on a government form; the difference between self-insured health plans administered by third party administrators and group health insurance plans offered to employees through insurance companies; and the exemption under ERISA for group health plans that qualify as "church plans."  Yet despite this, the case is becoming the symbol for a much broader, and to some extent uglier, political debate.  Here are two essays from the blogosphere that illustrate the political dimensions that this free exercise issue has taken on:

From American Thinker yesterday, Lloyd Marcus posts an essay titled Will King Obama Throw Nuns into the Lion's Den?, saying in part:

We are witnessing a modern-day version of King Darius ordering that Daniel be thrown into the lion's den for refusing to deny his faith. Displaying deceit characteristic of our Liar-in-Chief, Obama's DOJ have offered the Little Sisters a serpent disguised as an olive branch.

From All Voices yesterday, John Thomas Didymus writes in a post titled Does filling out a contraception mandate exemption form violate Catholic religious rights?:

When properly understood, the Little Sisters’ argument is cynical hairsplitting with the intention of picking a fight with and prolonging confrontation with a government they have identified as an ideological foe.... The confrontational attitude of the Little Sisters illustrates the dog-in-the-manger attitude common to religious ideologues through which they exercise socially disruptive influence. The religious dog-in-the-manger attitude can be summarized as: "If our religion says we can't have it, and then no one should have it".... An extreme form of this pattern of socially disruptive religious chauvinism is expressed by Nigeria's Boko Haram.

Of course, much of the debate is calmer than these examples, but in the highly charged atmosphere surrounding all aspects of the Affordable Care Act, louder voices tend to drown out other more nuanced analyses.

Recent Articles of Interest

From SSRN:

• Richard Schragger & Micah Schwartzman, Some Realism about Corporate Rights, (Virginia Public Law and Legal Theory Research Paper No. 2013-43 (2013)).
• Rafael Palomino, Manual breve de Derecho eclesiástico del Estado (2ª edición) (Spanish Law and Religion in a Nutshell (2nd Edition)), (Europan and Comparative Law Books, Forthcoming).
• Nick Reaves, Uniquely Qualified: The Constitutionality of Crisis Chaplaincy Programs, (December 17, 2013).
• Samuel H. Pillsbury, Questioning Retribution, Valuing Humility, (Ohio State Journal of Criminal Law, Vol. 11, No. 1, 2013).
• Aaron R. Petty, The Concept of 'Religion' in the Supreme Court of Israel, (January 3, 2014).
• Seth Barrett Tillman, Purim & My Bangladeshi Friend, (Gadfly: Culture that Matters, February 11, 2013).

From SmartCILP:

• Evelyn M. Aswad, To Ban or Not To Ban Blasphemous Videos, 44 Georgetown Journal of International Law 1313-1328 (2013).
• Mark Strasser, Innocents Beware: On Religion Clause Jurisprudence and the Negligent Retention or Hiring of Clergy, 22 William & Mary Bill of Rights Journal 177-210 (2013).
• Symposium. State-Sponsored Religious Displays in the U.S. and Europe. Introduction by Mark L. Movsesian; articles by Silvio Ferrari, Thomas C. Berg, Monica Lugato and Hon. Diarmuid F. O'Scannlain. 52 Journal of Catholic Legal Studies 1-92 (2013).

Recent Prisoner Free Exercise Cases

In Merrick v. Inmate Legal Services, 2013 U.S. Dist. LEXIS 181120 (D AZ, Dec. 30, 2013), an Arizona federal district court dismissed an inmate's complaint that he was denied unmonitored and unrecorded clergy calls with a specific pastor he preferred.

In Morton v. Eastern Regional Jail, 2013 U.S. Dist. LEXIS 181186 (ND WV, Dec. 30, 2013), a West Virginia federal district court adopted in part a magistrate's recommendations (2013 U.S. Dist. LEXIS 181185, June 14, 2013) and dismissed a Muslim inmate's claims against the named defendants that the jail violated his rights by failing to provide Islamic worship services, religious study classes, prayer materials, or staff.

In Goodwin v. Palmer, 2013 U.S. Dist. LEXIS 181529 (N.D. Iowa Dec. 31, 2013), an Iowa federal district court permitted a civil detainee to proceed with his complaint that his free exercise rights are being infringed by denial of access to a minister unless he signs a DHS authorization form.

In Strong v. Livingston, 2013 U.S. Dist. LEXIS 181671 (SD TX, Dec. 31, 2013), and in Hickman-Bey v. Livingston, 2013 U.S. Dist. LEXIS 181682 (SD TX, Dec. 31, 2013), a Texas federal district court denied stays pending appeal of previous preliminary injunctions allowing plaintiff Muslim inmates to wear a one-quarter inch beards.

In Ali v. Wingert, 2014 U.S. Dist. LEXIS 204 (D CO, Jan. 2, 2014), a Colorado federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 182081, Nov. 19, 2013) and dismissed a Muslim inmate's complaint that he was required to use his commitment name along with his religious name on his mail.

Texas District Court Grants Permanent Injunction In "Church Plan" Challenge To Contraceptive Mandate Compromise

In Catholic Diocese of Beaumont v. Sebelius, (ED TX, Jan. 2, 2014), a Texas federal district court issued a permanent injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate compromise against the Catholic Diocese of Beaumont and Catholic Charities of Southeast Texas.  The court rejected the government's argument that no substantial burden is present here because of the special exemption of "church plans" from ERISA, on which enforcement against third-party administrators is based. The court said in part:

Requiring the head of a religious organization to sign a putatively correct statement of religious belief, which the Government has defined to authorize a third party to take an action that is contrary to those religious beliefs, imposes a substantial burden on the free exercise of religion. That conclusion is not changed by the Government’s argument that, at present, it does not have the power to compel the third party to act.

Two House Members Object To VA Hospital Christmas Celebration Policies

The Marine Times reported yesterday that two members of Congress have written VA Secretary Eric Shinseki about incidents at three VA hospitals involving Christmas celebration policy. At a Texas VA hospital, a group of schoolchildren were not allowed to deliver handwritten cards with greetings such as "Merry Christmas" and "God Bless You."  VA officials say this involved a miscommunication, and that Christmas cards are permitted for patients who celebrate Christmas.  At an Alabama hospital, goodie bags with Christmas cards were allowed only to the extent they met the hospital's requirement that only secular gifts can be distributed broadly to veterans.  Finally, at a Georgia hospital, carolers were allowed to sing at public performances only from an approved list of songs.  Officials said that more private space was available for carolers to sing more religious songs for veterans who choose to attend. Alabama Rep. Martha Roby, one of those complaining wrote in part that she was concerned about "the culture of bureaucracy at the VA [that] would encourage facility administrators to err on the side of suppressing religious expression and discouraging acts of kindness toward veterans." Rep. Jeff Miller, House Veterans' Affairs Committee chairman,  wrote to Shinseki arguing that since Christmas is a federal holiday, VA may be violating veterans' rights by barring them from celebrating it.

Tunisia's National Assembly Approves Constitutional Provision Making Islam Country's Religion

Tunisia's National Assembly began voting Friday, article-by-article, on the country's proposed new constitution. (AFP 1/3). On Saturday, by a vote of 146-3 it adopted Article I which reads:  "Tunisia is a free, independent and sovereign state. Islam is its religion, Arabic is its language, and it is a republic. It is not possible to amend this article." The Assembly rejected proposed amendments that would have provided that Islam or the Qur'an would be the principal source of legislation.  The provision as adopted is a compromise between the Islamist Ennahda party and secularists. (AFP 1/4.) The constitution must be adopted by 2/3 of the Assembly's 217 members, or else submitted for a referendum.

Losing NYC Political Candidate Sues Winner Over Mural Allegedly Intended To Act As A Curse

In an unusual lawsuit filed Thursday, Gwen Goodwin, a losing candidate in the September 10 Democratic primary for New York City Council, is seeking $1 million in damages from her successful rival, Melissa Mark-Viverito, and from the landlord of the apartment building in which Goodwin lives. The suit stems from a 5-story tall mural described (and pictured) by today's New York Post as a "bodiless rooster atop wooden poles" which was placed on the apartment building wall and extends to the window of Goodwin's 5th floor apartment. The mural would have been seen by those in the neighborhood from a Caribbean culture as a black magic curse or death threat. The mural, unveiled in a Sept. 1 ceremony, was part of Los Muros Hablan (“The Walls Speak”), a project headed by Mark-Viverito to celebrate Latino culture through murals. The complaint (full text) in Goodwin v. Mark-Viverito, (NY County Sup. Ct., filed 1/2/2014), claims that the mural was deliberately planned by Mark-Viverito and Goodwin's landlord to inflict emotional distress on Goodwin. (Goodwin, who lives in a rent-stabilized apartment, has been sued a number of times by her landlord.) She claims that the mural distracted her and caused her to lose energy which disrupted her performance in the primary.

More Developments In Non-Profit Challenges To Contraceptive Mandate

As previously reported, on New Years Eve, U.S. Supreme Court Justice Sonia Sotomayor granted Little Sisters of the Poor an emergency temporary injunction blocking enforcement against them of the Affordable Care Act contraceptive coverage accommodation for religious non-profits. The federal government was ordered to file a response by 10:00 AM today.  Here is the Solicitor General's 37-page response filed today in Little Sisters of the Poor Home for the Aged v. Sebelius,  (Docket No. 13A691). As explained by today's Politico, Sotomayor must now decide whether to keep the temporary injunction in place, lift it, or refer the matter to all the Justices for them to decide to take one of those steps.  The Justices could also grant full Supreme Court review in the case even though there has not yet been a Court of Appeals decision.

In another development, on New Years eve the U.S. District Court for the Eastern District of Michigan granted a 14-day temporary restraining order (full text) in Ave Maria Foundation v. Sebelius. The order temporarily bars enforcement of the contraceptive coverage mandate against Ave Maria Foundation, Ave Maria Radio, Domino's Farms Petting Farm, Rhodora J. Donahue Academy, and Thomas More Law Center.  (TMLC Jan. 2 press release.) A hearing is scheduled Jan. 8 on whether to convert the TRO to a preliminary injunction.

IRS Issues New Procedures To Reinstate Lost Tax-Exempt Status

KPMG Tax News Flash reports that yesterday the Internal Revenue Service issued an advance copy of Rev. Proc. 2014-11 which provides procedures for reinstating the tax-exempt status of non-profit organizations that have had their tax-exempt status automatically revoked for failure to file required Annual Returns or notices for three consecutive years. The new Revenue Procedure modifies and supersedes Notice 2011-44.

In Malaysia, Battle Over Christian Use of "Allah" Intensifies

As previously reported, last October Malaysia's Court of Appeal upheld a licensing condition imposed by the Minister of Security prohibiting the Catholic newspaper The Herald from using the word "Allah" in its Malay language edition to refer to God. The Federal Court has scheduled arguments for February 24 on the Catholic Church's application for leave to appeal the decision. (Malaysia Chronicle.) Meanwhile though the dispute intensifies.  According to yesterday's Malay Mail, The Herald's editor Father Lawrence Andrew has set off a firestorm of criticism by insisting that Catholic Churches in the state of Selangor will continue to use the term "Allah" in their Masses. His statement has led to calls for contempt of court proceedings, and even suggestions that Andrew has committed treason against the Sultan's decree banning non-Muslims from using the word "Allah."

Reuters and The Hindu report that the situation has been further exacerbated. Officials from the Selangor state Islamic Religious Department, aided by police, yesterday raided the Bible Society of Malaysia and seized 321 copies of the Bible that use the term "Allah". The Bible Society's president and its manager were briefly detained and then released on bail.  They say they are allowed to distribute the Bibles to Christians in West Malaysia (which includes Selangor) so long as the Bible has a cross and the words "Christian publication" on the cover.  The general secretary of the Council of Churches Malaysia said that Islamic authorities are not legally permitted to enter non-Muslim religious establishments to inspect or search them.

Notre Dame Complies With Affordable Care Act Contraceptive Mandate Accommodation

In the flurry of decisions this week in suits by religious non-profits seeking protection from the Affordable Care Act contraceptive coverage accommodation, one institution that failed to obtain injunctive relief was Notre Dame University. (See prior posting.) According to WNDU, on Tuesday the University issued a statement saying:

Having been denied a stay, Notre Dame is advising employees that pursuant to the Affordable Care Act, our third party administrator is required to notify plan participants of coverage provided under its contraceptives payment program.

As part of an ongoing legal action, however, the program may be terminated once the university's lawsuit on religious liberty grounds against the HHS mandate has worked its way through the courts.

Meanwhile, at Balkinization blog, Marty Lederman has an excellent backgrounder on the non-profit contraceptive mandate cases, as well as this backgrounder on whether or not the broader mandate really involves a requirement to cover "abortifacients."

Urging Religious Resolution of Altercation Violated Ban or Attempting To Dissuade Witness From Testifying

In People v. Wahidi, (CA App., Dec. 30, 2013), a California state appeals court upheld the conviction of defendant Abdullah Wahidi  for violating California Penal Code Sec. 136.1(a)(2) which prohibits any person from "[k]nowingly and maliciously attempt[ing] to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry...."  Wahidi had been in an altercation with Farahan Khan and three of Khan's friends. He was charged with assault, vandalism and battery. The day before his preliminary hearing, Wahidi approached Khan following prayer services at Khan’s mosque to urge him, instead of testifying at the preliminary hearing, to settle the matter informally using the Muslim custom of resolving disputes through discussions between affected families. Wahidi said to Khan:

[W]e’re both Muslims. That if we could just settle this outside the court in a more Muslim manner family to family, have our families meet and settle this out of court and not take this to court.

On the basis of that conversation, he was also charged with attempting to dissuade a witness from testifying. The court held that this conversation meets the "knowing and malicious" standard of the statute. California Penal Code Sec. 136 defines "maliciously" very broadly to include interfering in any manner with the orderly administration of justice, and in general was intended only to exclude attempts by family members to protect a witness or victim by urging them to not become involved. The Los Angeles Metropolitan News-Enterprise reports on the decision.

Israel Obtains Extradition of Recalcitrant Husband From U.S. Using Other Charges As Pretext

YNet News reports that last Friday the United States extradited to Israel a man sought primarily by an Israeli Rabbinical Court for refusing to grant his wife a get (Jewish divorce document).  The U.S.-Israel Extradition Treaty only permits extradition where the offense is a crime under the laws of both countries.  So formally the extradition was on the basis of charges of sex offenses and pedophillia. During the divorce proceedings, the wife's sister testified that the husband had sexually abused his minor son and had abused her when she was a minor.  Usually Israel's Justice Ministry does not request extradition until it has investigated allegations, but here it agreed to act sooner because of the husband's denial of a get.  Rabbi Eliyahu Maimon, head of the Rabbinical Courts' Agunot Department, says that Israel's Justice Ministry Department for International Agreements will use this case as precedent in the future to seek extradition using suspicion of other crimes to obtain return of men who have fled abroad after refusing to grant their spouse a get. [Thanks to Jack Levey for the lead.]

Report On Freedom of Religion or Belief Prisoners Issued

On Dec. 21, Human Rights Without Frontiers International released its Freedom of Religion or Belief & Blasphemy Prisoners List 2013. The report documents prisoners in 24 countries being held for violation of laws restricting worship, proselytizing, conversion or conscientious objection.  Nine countries hold prisoners on blasphemy or defamation of religion charges. The countries with the most freedom of religion or belief prisoners are China, Eritrea, Iran, North Korea and South Korea. The offending countries are all in Asia, northern Africa, the Middle East or are countries of the Former Soviet Union.

Hawaii Federal Court Rejects RFRA Claims In 2 Cannabis Cases

This week the Hawaii federal district court rejected Religious Freedom Restoration Act claims in two separate marijuana cases:

United States v. Christie, (D HI, Dec. 30, 2013), involves a motion in limine in the prosecution of Roger Christie, the founder and leader of The Hawaiian Cannabis Ministry, and Sherryanne L. St. Cyr, an ordained minister in the THC Ministry, who are charged with manufacturing, distributing and possessing marijuana.  In one opinion (full text) the court held that Defendants had established a prima facie case for raising a Religious Freedom Restoration Act defense.  In a second opinion issued the same day (full text), the court held the government had established a compelling interest in enforcing the Controlled Substances Act against defendants to prevent diversion of substantial amounts of marijuana to non-adherents of the church. Finding also that the prosecution is the least restrictive means to further that compelling interest, the court held that defendants ultimately are not entitled to present a RFRA defense at trial.

In Oklevueha Native American Church of Hawaii, Inc. v. Holder, (D HI, Dec. 31, 2013), the court dismissed a suit brought by the Native American Church of Hawaii and its founder Rex "Raging Bull" Mooney seeking a declaratory judgment decreeing that criminal prosecution under the federal Controlled Substances Act for consuming, cultivating, possessing or distributing of cannabis would violate plaintiffs' free exercise of religion in violation of RFRA. The court said in part:

No reasonable juror could infer, from what is presently in the record, that Mooney’s religion is anything more than a strongly held belief in the importance or benefits of marijuana. Even if this belief is sincerely held, and even if marijuana use is indeed beneficial, the court cannot conclude from the record that a reasonable juror could find that Plaintiffs’ belief is religious in nature....

Even if the evidence in the record did support the existence of a religion,... a reasonable juror could not conclude that the prohibition on cannabis constitutes a substantial burden on Plaintiffs’ alleged religion..... Mooney himself describes peyote as his religion’s “primary sacrament,” and lists a litany of other drugs his Church members use. Nothing in the record explains why relying on these other drugs instead of cannabis would be more than an inconvenience for Plaintiffs.

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).