2nd Circuit: No Free Exercise Problem In Denying School Space For Church Worship Services

In Bronx Household of Faith v. Board of Education of the City of New York, (2d Cir., April 3, 2014), the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision, reversed the district court and held that the Board of Education of the City of New York did not violate the free exercise clause when in 2007 it changed its rules to bar the use of school facilities by churches for religious worship services. Board policy permits outside groups to use school space for other purposes during non-school hours merely for the cost of custodial services. The majority held that strict scrutiny is not required when the Board acts in order to avoid the risk of violating the Establishment Clause. It concluded that:

the better rule allows the Board, if it makes a reasonable, good faith judgment that it runs a substantial risk of incurring a violation of  the Establishment Clause by hosting and subsidizing the conduct of religious worship services, to decline to do so.

The majority also concluded that the Board's policy does not require it to become unconstitutionally entangled with religion in deciding what constitutes religious worship.

Judge Walker dissented, arguing that strict scrutiny should apply because the Board regulation "is neither neutral nor generally applicable in its treatment of religion." He concludes that the Board does not have a compelling interest in avoiding an Establishment Clause violation because it is clear that allowing churches to use facilities on the same neutral basis as others does not violate the Establishment Clause.

The decision is the latest in the long-running battle over church use of school space on Sundays. The 2nd Circuit in a previous decision upheld the Board's rule change against a free expression challenge. (See prior posting.) The Wall Street Journal reports that lawyers for Bronx Household of Faith plan an appeal, but that remarks by Mayor Bill DeBlasio suggest that he might be willing to change the Board policy adopted under the predecessor administration.

House Committee Holds Hearing On Persecution of Religious Communities In Vietnam

A video is now available online of the March 26 hearing by the U.S. House Foreign Affairs Committee's Tom Lantos Human Rights Commission on  Persecution of Religious and Indigenous Communities in Vietnam. The hearing Witness List included USCIRF Commissioner Eric P. Schwartz (written testimony), Father Phan Van Loi (Co-Founder of the Association of Former Vietnamese Prisoners of Conscience), Sub-dignitary Nguyen Bach Phung (Clergy member of an independent Cao Dai Sect); Yunie Hong (Director of Policy Advocacy, Hmong National Development), and Rong Nay (Executive Director, Montagnard Human Rights Organization).

ADL Releases 2013 Annual Audit of Anti-Semitic Incidents

In a press release this week, the ADL announced the release of its Annual Audit of Anti-Semitic Incidents. The audit found 751 incidents across the U.S. during 2013. (State-by-state totals.) This is a 19% decrease from the prior year. Of the 751 incidents, 405 involved harassment, 315 involved vandalism and 31 involved assaults.

Mississippi Legislature Passes Religious Freedom Restoration Act

On Tuesday, the Mississippi legislature gave final passage to SB 2681, the  Mississippi Religious Freedom Restoration Act after a Conference Committee took out some of the language that civil rights groups found objectionable. The final version of the bill passed the Senate by a vote of 37-14, and the House by a vote of 79-43. The bill now goes to Gov. Phil Bryant who, Reuters reports, will sign the bill. As passed, the bill requires state and local governments to demonstrate that they are using the least restrictive means to further a compelling governmental interest before they may substantially burden religious exercise. Opponents of the bill argued that it could permit discrimination against gays and lesbian on religious grounds. Another portion of the bill adds the phrase "In God We Trust" to the Mississippi seal.

Negligence In Identifying Son's Body Did Not Deprive Mother of Free Exercise Rights

In Simkova v. City of Newark, (D NJ, March 31, 2014), a New Jersey federal district court dismissed free exercise and due process claims against the city, police officials, the state medical examiner and others. The court described the facts as follows:

In January 2012, plaintiff Zdenka Simkova ... learned that her son, Michael ... who went missing in 2007 over the Thanksgiving holidays and had never been located—had died years earlier and was buried in a mass grave in Hackensack. She filed a federal lawsuit detailing both the resistance she faced after she reported him missing within days after he failed to show up at her house and the misinformation she received from official sources..... Simkova alleged that the defendants failed to follow proper procedures for the identification and investigation of missing persons—a result, in part, of the municipal defendants’ policies and their failure to train their employees—thereby depriving her of her right to possess her son’s body and to bury him in accordance with her religion.

In rejecting plaintiff's free exercise claim, the court emphasized that plaintiff had not alleged defendants were aware of her religious concerns, or had any idea that their actions might affect her religious practice.

Contempt Motion Filed Against County Commission For Christian Prayers

The American Humanist Association announced that yesterday it filed a contempt of court motion (full text) against members of the Carroll County, Maryland Board of Commissioners for violating a court order (see prior posting) barring them from using specific Christian references in Council invocations.  One day after the entry of the injunction, Council member Robin Frazier delivered an explicitly Christian invocation and expressed objections to the court order. Then on Tuesday, the Board invited Bruce Holstein (reportedly the campaign manager of one of the Commissioners) to speak. He read a statement and offered a prayer harshly critical of the judge's decision, saying in part:

The judge may have prevented you commissioners from praying to Jesus Christ, but I want you to know that we, the citizens of Carroll County, are not gonna stand for it.

We are overruling Judge Quarles’ objection by offering this prayer on your behalf: Heavenly father, I stand here this morning and ask your blessing on our five county commissioners.... They have received a court Order from a misguided judge who forbids them from praying in the name of your son, Jesus Christ. This Order discriminates against Christians and is a gross violation of our commissioners’ First Amendment Constitutional rights. Therefore I ask you to bless their proceedings today and bless the case about Christian prayer before the Supreme Court and I ask for these blessings in Jesus’ name. Amen.

While the court's injunction ran against the Board members, plaintiff in its Memorandum of Law (full text) argues that it also bars the prayer delivered by Holstein:

There is no question the Defendants had the authority to stop this person from delivering a prayer at their Board meeting. They also had the ability clarify to the public, after the prayer was delivered, that it was not endorsed or supported by the Board.

The full text of the statements and prayers by both Commr. Frazier and Mr. Holstein are included in the Memorandum of Law.

Israel's Supreme Court Rules That Original Austrian Jewish Historical Documents Should Stay In Israel

Haaretz reports that a 3-judge panel of Israel's Supreme Court yesterday handed down a decision in a suit by the Jewish community in Vienna, Austria seeking return from Israel's  Central Archives for the History of the Jewish People of thousands of historical documents deposited there after World War II to keep them safe.  The Austrians claim that the documents, which trace the community's history, were only on loan and should be returned now that a Jewish museum is being built in Vienna. The Jerusalem archives claims that the materials were given to them in perpetuity.  The Supreme Court urged the two sides to come to an agreement that would result in the original documents remaining in Israel, with a digital copy going back to Vienna and some of the original documents being sent on loan to the Museum of the Jewish Community in Vienna once it is completed.

Canadian Court Certifies Class Action Against Anglican Boarding School For Abuse of Students

In Cavanaugh v. Grenville Christian College, (ON Super Ct, Feb. 24, 2014), a Superior Court in the Canadian province of Ontario certified for class action status a lawsuit by former students of an Anglican boarding school, Grenville Christian College, located in Brockville, Ontario. The suit alleges breach of fiduciary duty, negligence, assault, battery and intentional infliction of mental suffering. According  to the court:

The appellants allege that they were subjected to various forms of physical and psychological abuse at the hands of Grenville staff.... They allege that the abuse was systemic and pervasive. In particular, they plead that “the conduct of the defendants … was part of a systemic campaign by the defendants, Fathers Haig and Farnsworth and the school to promote and indoctrinate students in the teachings and practices of the Community of Jesus.” The Community of Jesus is a Christian organization based in Orleans, Massachusetts, which the appellants characterize as a religious cult whose teachings and practices were intolerant and fanatical.

Mondaq reports on the decision.

Investigative Report Criticizes IRS Classifying Televangelists as Churches

NPR yesterday published a lengthy investigative report on the lack of financial transparency of television evangelists because the Internal Revenue Service is willing to categorize many of them as churches rather than non-profit religious organizations.  Churches are not required to file Form 990 that provides annual disclosure of finances. The report focuses particularly on Daystar Television, one of the three largest religious television networks. Illustrating financial concerns that might be revealed if televangelists had to file Form 990, the report said in part:

Daystar's primary revenue comes from selling airtime to other religious programmers. Its secondary income is donations.... [B]etween 2005 and 2011, Daystar took in $208 million in tax-deductable contributions from viewers through on-air pitches. Daystar has built a public image as a generous giver to charitable causes. Indeed, the network has contributed millions of dollars to a trauma center and a home for Holocaust survivors in Israel, a hospital in Calcutta, and to ministries that support women in Moldova and children in Uganda....

NPR analyzed six years of Daystar balance sheets. They show the network gave away $9.7 million dollars in direct grants to outside recipients. Not $30 million [which its founder has claimed]. That works out to charitable giving of about 5 percent of donor revenue.

NY Jewish Group Can Proceed With Challenge To Validity of Mortgage Because Court Approval Was Required

Mosdos Chofetz Chaim, Inc. v. RBS Citizens, N.A., (SD NY, March 30, 2014) is a 61-page opinion growing out of a suit by an Orthodox Jewish religious group that encountered hurdles in its attempt to build an adult religious studies Kollel building along with family housing for Kollel students on a parcel of land in Ramapo, New York.  The events are part of the tension in recent years over the movement of increasing numbers of Orthodox and Hasidic Jewish families to Ramapo and areas around it in Rockland County. (See prior posting.)

Originally the Kollel project was financed by RBS Citizens, but it sold the note and mortgage to Avon which eventually foreclosed on the mortgage.  Among the 17 causes of action against three groups of defendants is a claim that the foreclosure was commenced because a principal of Avon, Abraham Grunwald, disapproved of the religious lifestyle and education of the Mosdos Kollel students and wanted to close down the Kollel and replace it with an institution consistent with Grunwald’s own religious values. The complaint also alleges that an agent of Avon and Grunwald  engaged in a campaign to injure Mosdos by calling its students to tell them that the school would be shut down, and urging donors not to donate because the school is not viable.

The court dismissed abuse of process and slander claims against the Avon defendants.  But it did allow Mosdos to move forward with its claim that the mortgage agreement that was foreclosed upon is invalid because under Sec. 12(1)  of New York's Religious Corporation Law the mortgage requires prior court approval. (See prior related posting.)

Class Action Challenge To Virginia's Same-Sex Marriage Ban Stayed As Plaintiffs Intervene In Appeal of Parallel Case

In Harris v. Rainey, (WD VA, March 31, 2014), Virginia federal district judge has cut through the procedural complexity of competing challenges to Virginia's ban on same-sex marriage by staying proceedings in one case while a separate challenge works its way through the 4th Circuit Court of Appeals.  In February, a different Virginia federal district court in Bostic v. Rainey issued a preliminary injunction striking down Virginia's ban on same-sex marriage, but stayed the injunction pending appeal. (See prior posting.) Just before the court handed down its decision in Bostic, Virginia's attorney general filed a Notice of Change of Legal Position with the court indicating that he will not defend the constitutionality of Virginia's ban. This However left two clerks of court who were also defendants to carry the case forward. (Attorney General's FAQ page on the case.) However in the Harris case-- a class action on behalf of 14,000 same sex couples filed by the ACLU (links to pleadings)-- no defendant was willing to defend the state's ban. Meanwhile the plaintiffs in Harris petitioned the 4th Circuit for, and on March 14 were granted, the right to intervene as a plaintiffs in the Bostic appeal (Legal Times), despite opposition to their intervening by the original lawyers of plaintiffs in Bostic. They preferred that the Harris plaintiffs merely file an amicus brief. (National Law Journal.) [Thanks to How Appealing for the lead.]

Satmar Community Agrees To Eliminate Official Endorsement of Sex Segregated Playground

The New York Civil Liberties Union reported yesterday that the Village of Kiryas Joel, New York, has settled a Freedom of Information lawsuit brought against it seeking information on the alleged sex segregation of a Village public park.  The media last year reported that the Village, which is comprised predominately of members of the Satmar Hasidic Jewish sect, had constructed a 283-acre playground with one area for women and girls (red benches and playground equipment) and a separate blue area for boys and men. (See prior posting.)  In settling the suit (full text of March 26 Stipulation and Settlement Order), the Village confirmed to the ACLU that it does not have a policy of directing, endorsing or enforcing illegal sex segregation in the Village playground known as Kinder Park.  The settlement authorizes the ACLU to conduct two visits each summer for the next three years to check on its compliance. The ACLU says that the Village has removed Yiddish signs that were previously posted instructing visitors about the sex-segregated areas. The Village also agreed to pay $3000 in petitioners' attorneys' fees. Failed Messiah, reporting on the settlement, claims that the playground will remain voluntarily segregated.

U.S. Catholic Bishops Issue 2013 Report On Clergy Abuse Allegations and Costs

On March 28, the U.S. Conference of Catholic Bishops released its most recent report on the Church's ongoing efforts to deal with clergy sexual abuse of minors.  Its 2013 Annual Report on the Implementation of the “Charter for the Protection of Children and Young People" discloses that in 2013 there were 370 new credible allegations of sexual abuse of a minor made against 290 priests or deacons. Only nine of the allegations involved victims who were under 18 in 2013. The rest involved adults who claim abuse in the past. 80% of the victims were male while 20% were female.  Five of the 370 allegations involved only child pornography. 69% of the allegations involved conduct that occurred or began between 1960 and 1984. During 2013, dioceses and eparchies paid out $108.9 million as follows: $61 million in settlements; $6 million in therapy for victims; $10.4 million in support for offenders; $28.9 million in attorneys' fees; and $2.4 million in other costs. In the past ten years, costs related to claims have totaled $109 million. Insurance covered 21% of the amounts paid out in 2013. The report deals separately with abuse complaints directed to clerical and mixed religious institutes where 2013 saw 94 new credible allegations of abuse. Catholic World News covers the report. [Thanks to Pewsitter.com for the lead.]

SCOTUS Denies Cert. In 2 Non-Profit Contraceptive Mandate Cases Seeking Review Ahead of Circuit Court Decisions

The U.S. Supreme Court today denied certiorari (Order List) in two cases in which Catholic non-profit organizations are challenging the Affordable Care Act compromise that allows them to opt out of providing their employees contraceptive coverage only if they sign a form that results in the employees receiving coverage directly from the health insurance company or third party administrator.  The two cases in which review was denied today were both ones in which the non-profit organization took the unusual step of seeking Supreme Court review before the appeal of the district court's decision was heard and decided by the Court of Appeals. The first of today's denials was in Roman Catholic Archbishop of Washington v. Sebelius, (Docket No. 13-829, cert. denied 3/31/2014) in which the D.C. federal district court upheld the challenge to the compromise as to one of the plaintiffs that offered a self-insured plan, but not for the others who offered group insurance or church plans. (See prior posting). The second denial was in Priests for Life v. Department of Health and Human Services, (Docket No. 13-891, cert. denied 3/31/2014) in which 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. (See prior posting.) Reuters reports on the denial of review.

Hearing This Week On Injunction Against New Jersey Archdiocese Selling Headstone and Mausoleum Rights

Yesterday's Newark Star Ledger reports that a hearing is scheduled April 1 in a New Jersey Superior Court on an action by three cemetery monument companies against the Roman Catholic Archdiocese of Newark seeking to enjoin the Archdiocese from selling monuments and private mausoleums at Catholic cemeteries.  The complaint (full text) in Monument Builders of New Jersey, Inc. v. Roman Catholic Archdiocese of Newark, (NJ Super Ct), filed last  year argues that the Archdiocese has engaged in unfair competition with private monument companies:

The sale of the monuments and the private mausoleums is in direct competition with Plaintiff entities and because of its tax-exempt status and the close contact with the family of the deceased before, at the time of, and after the burial give the Archdiocese preferred economic position and ease of access to prospective customers in promoting sales.

The complaint also alleges that the sale of monuments by the Archdiocese is ultra vires and against public policy.

The Archdiocese's answer (full text) filed Sept. 4, 2013, says that the Archdiocese is not selling monuments and mausoleums. Rather it is selling inscription rights to monuments and burial rights in mausoleums that the Archdiocese owns.  This arrangement makes it responsible for repairs when there is damage to headstones of mausoleums.  The Archdiocese admits that it is subject to New Jersey's 7% use tax on the monuments and mausoleums it purchases, even though apparently it has not yet paid the tax. (Deposition.)

NY Appellate Court Upholds $1.6 M Religion- Sexual Orientation Discrimination Verdict

In Salemi v. Gloria's Tribeca Inc., (NY App. Div., March 20, 2014), a New York appellate court upheld a jury verdict of $1.6 million in a suit alleging employment discrimination on the basis of religion and sexual orientation in violation of the New York City Human Rights Law.  Plaintiff worked as chef and manager of a restaurant.  The court concluded that the jury had ample evidence to find that plaintiff's employer:

discriminated against her based on her religion and sexual orientation by, amongst other things, holding weekly prayer meetings at the restaurant ... which the staff viewed as mandatory, fearing that they would lose their jobs if they did not attend, repeatedly stating that homosexuality is "a sin," and that "gay people" were "going to go to hell" and generally subjecting her to an incessant barrage of offensive anti-homosexual invective.... Additional evidence demonstrated that ... plaintiff was retaliated against for objecting to [her employer's] offensive comments, choosing not to attend workplace prayer meetings, and refusing to fire another employee because of his sexual orientation.

In response to defendant's argument that he was expressing his religious beliefs, the court said that the jury was properly instructed that he could do so provided he did not discriminate against his employees based on religion or sexual orientation. Courthouse News Service reports on the decision.

Recent Articles of Interest

From SSRN:

• Samuel J. Levine, Foreword: Conference on Religious Legal Theory: RLT IV: Expanding the Conversation, (30 Touro L. Rev. 1 (2014)).
• Dallan F. Flake, Image is Everything: Corporate Branding and Religious Accommodation in the Workplace, (University of Pennsylvania Law Review, Vol. 163, 2014-15).
• Asifa Quraishi-Landes, Rumors of the Sharia Threat are Greatly Exaggerated: What American Judges Really Do with Islamic Family Law in Their Courtrooms, (New York Law School Law Review, Vol. 57, No. 245, 2013).
• John M. A. DiPippa, God and Guns: The Free Exercise of Religion Problems of Regulating Guns in Churches and Other Houses of Worship, (March 21, 2014).
• John M. Breen & Lee J. Strang, The Forgotten Jurisprudential Debate: Catholic Legal Thought's Response to Legal Realism, (March 24, 2014).
• Micah Schwartzman, Religion as a Legal Proxy, (San Diego Law Review, Forthcoming).
• Micah Schwartzman, Religion, Equality, and Public Reason, (Boston University Law Review, Forthcoming).
• Yaniv Heled, On Patenting Human Organisms or How the Abortion Wars Feed into the Ownership Fallacy, (Cardozo Law Review, Vol. 36, 2014, Forthcoming).
• Jessica Feinberg, The Survival of Non-Marital Relationship Statuses in the Same-Sex Marriage Era: A Proposal, (Temple Law Review, Vol. 87, Forthcoming).

From SSRN (Affordable Care Act and Religious Freedom):

• Heidi Muller, Hobson's Choice: For-Profit Corporations and the Exercise of Religion, (November 17, 2013).
• Scott Harrington, No Soup for You! Religion in the Post-PPACA Era, (March 18, 2014).
• Zoe Robinson, The Contraception Mandate and the Forgotten Constitutional Question, (Wisconsin Law Review, Forthcoming 2014).
• Toni M. Massaro, Nuts and Seeds: Disclosure of Religious Exemptions, (Arizona Legal Studies Discussion Paper No. 14-10 (March 2014)).

From SSRN (Non-U.S. law):

• Lotem Perry-Hazan, From the Constitution to the Classroom: Educational Freedom in Antwerp's Ultra-Orthodox Jewish Schools, (Journal of School Choice, 2014, Forthcoming).
• Lotem Perry-Hazan, Court-Led Educational Reforms in Political Third Rails: The Cases of Israeli Haredi Schools' Curricula and Admission Policies, (March 18, 2014).
• Jill Marshall, The Legal Recognition of Personality: Full Face Veils and Permissible Choices, (10 International Journal of Law in Context 64-80 (2014)).
• Robert J. Delahunty, The Returning Warrior and the Limits of Just War Theory, (Rutgers Journal of Law and Religion, 2014).

From SmartCILP:

• Mark W. Cordes, The First Amendment and Religion After Hosanna-Tabor, 41 Hastings Constitutional Law Quarterly 299-355 (2014).
• Alvaro Hasani, Compatibility of Democracy and Islam...Or the Lack Thereof: A Closer Look At Whether the "Arab Spring" Was Ever Capable of Culminating Into a Viable Democracy in the Arab World, 15 Scholar 715-743 (2013).
• Ken Matheny, The Disappearance of Labor Unions and the Social Encyclicals of Popes John Paul II and Benedict XIV, 23 Southern California Interdisciplinary Law Journal 1-35 (2014).

Recent Prisoner Free Exercise Cases

In Jackson v. Nixon, (8th Cir., March 28, 2014), the U.S. 8th Circuit Court of Appeals in a 2-1 decision reversing the district court held that an atheist inmate adequately pled that requiring him to complete a substance abuse program with religious content to be eligible for early parole violates the Establishment Clause.  Judge Smith dissented arguing that the inmate suffered no punishment when he withdrew from the substance abuse program and other avenues for early parole were available.

In Vega v. Rell, 2014 U.S. Dist. LEXIS 38199 (D CT, March 24, 2014), a Connecticut federal district court dismissed a Muslim inmate's complaints that the prison commissary falsely labeled Jolly Rancher candies as Halal; that cheese on the Common Fare menu was not halal; that prison prayer rugs were dirty; and that he was not allowed to purchase a digital Qur'an or Islamic educational CDs.

In White v. Dooley, 2014 U.S. Dist. LEXIS 38859 (D SD, March 25, 2014), a South Dakota federal district court dismissed an inmate's complaint that he was denied access to certain religious items, hardcover religious books and religious study classes.

In Van Buren v. Coy, 2014 U.S. Dist. LEXIS 39756 (WD KY, March 26, 2014), a Kentucky federal district court dismissed an inmate's complaint that he was denied religious services by being placed in segregation.

In Davis v. Michigan Department of Corrections, 2014 U.S. Dist. LEXIS 38763 (WD MI, March 25, 2014), a Muslim inmate alleged that he suffered food poisoning after eating items from his Ramadan food bag that were left unrefrigerated for many hours, and subsequently he only ate items from his food bag that did not require refrigeration. A Michigan federal district court held that this did not amount to a free exercise violation because, while he may have preferred more or different food, he did not show that this imposed a substantial burden on his free exercise.

In Maloney v. Ryan, 2014 U.S. Dist. LEXIS 39360 (D AZ, March 25, 2014), an Arizona federal district court dismissed a Muslim inmate's claim for damages under the free exercise clause finding that defendants had qualified immunity. No legal authority put them on notice that providing Ramadan breakfast before sunrise, rather than before dawn, violated inmates' constitutional rights. As to injunctive relief, the court gave defendants 30 days to show that their subsequent change in the breakfast policy is permanent.

In Bey v. Virginia, 2014 U.S. Dist. LEXIS 39636 (ED VA, March 20, 2014), a Virginia federal district court dismissed a complaint by a Moorish American Moslem inmate that he was denied a vegetarian diet, and that in court proceedings, the judge told him to remove his "religious national headdress," did not use his "free national name," and called him "black"instead of Moor.

In Plummer v. Riley, 2014 U.S. Dist. LEXIS 40654 (D SC, March 26, 2014), a South Carolina federal district court adopted most of a magistrate's recommendations (2014 U.S. Dist. LEXIS 42250, Feb. 26, 2014), and permitted a Rastafarian inmate to proceed with his complaint that he must sign up to attend religious services, cannot attend Rastafarian study groups and was suspended from chapel by the chaplain in retaliation for filing a grievance against him for his not allowing Rastafarians to celebrate Kwanza.

In Ballard v. Johns, 2014 U.S. Dist. LEXIS 41069 (ED NC, March 27, 2014), a North Carolina federal district court dismissed a complaint by a Catholic civil detainee held as a sexually dangerous person that he was denied religious services while in administrative segregation.

In Dunn v. Kentucky Department of Corrections, 2014 U.S. Dist. LEXIS 41640 (WD KY, March 28, 2014), a Kentucky federal district court dismissed a complaint by an Odinist (Astaru) inmate (1) that he is only allowed to buy the Thor's Hammer medallion that is available from the approved vendor, and it is of poor quality and features Celtic artwork; and (2) he is not permitted to own a set of personal rune stones.

A Comic Strip Commentary on Hobby Lobby

The Strip in today's New York Times Sunday Review is titled Fun With Corporate Conscience Clauses.  It is a comic-strip commentary on the Hobby Lobby case, corporate free exercise rights and religious conscientious objection which readers will find either immensely humorous or immensely offensive depending on one's views on the issues involved.

Suit Challenging Ohio's Refusal to Recognize Same-Sex Marriage Dropped When Couple Gets Family Health Insurance Policy

AP reports that a gay couple in Cleveland on Friday voluntarily dismissed a lawsuit they had filed last month challenging Ohio's refusal to recognize same-sex marriages.  Al Cowger Jr. and Tony Wesley Jr., who were married in New York state in 2012, sued when they were unable to obtain family health insurance coverage for themselves and their adopted daughter through the federal health insurance marketplace. They were initially told that a family policy was not available because Ohio does not recognize their marriage.  However this week they were finally able to obtain a family policy through the Healthcare.gov website. On March 14, the Department of Health and Human Services told insurance companies that starting next year, if they offer policies to opposite-sex spouses, they cannot choose to deny coverage to same-sex spouses.

Lutheran Affiliated Senior Housing Not Entitled To Property Tax Exemption

In Meridian Village Association v. Hamer, (IL App., March 28, 2014), an Illinois appeals court upheld the Illinois Department of Revenue's denial of a property tax exemption to a senior housing facility that was affiliate with Lutheran Senior Services.  It found that appellants had not shown their property is used exclusively for charitable purposes, nor is it used exclusively for religious purposes:

While the retirement community allows members of the Lutheran Church an opportunity to act out and evangelize their religion in the context of caring for seniors, the operation of the facility is not necessary to promote their religion, because that can be accomplished through other means. Other than caring for the elderly in a faith-inspired manner, there was little evidence of actual religious activity on the property.

Developments In Missouri and Michigan On Same-Sex Marriage Recognition

Here is an update on the rapidly moving developments in two states relating to recognition of same-sex marriages.

In Missouri, where a suit seeking to require the state to recognize same-sex marriages performed elsewhere is pending, last November the governor in Executive Order 13-14 directed the state Department of Revenue to accept joint tax returns from same-sex couples who are legally married in other states. This led in February to the filing of articles of impeachment (full text) against the Democratic governor by a Republican lawmaker. (See prior posting.)  In January 2014 a lawsuit was filed seeking a declaratory judgment that the Executive Order is unconstitutional and an injunction against its enforcement.  The complaint (full text) in Messer v. Nixon, (MO Cir. Ct., filed 1/14/2014) contends that the executive order is inconsistent with Missouri Constitution Art. 1, Sec. 33 that provides the only marriages that will be recognized in the state are ones between a man and a woman. Now, as the April 15 filing date for tax returns approaches,  PoliticMO reports that plaintiffs in the lawsuit last Wednesday filed a motion asking the court to grant a temporary restraining order preventing enforcement of the Executive Order.

In Michigan, a federal district court earlier this month struck down the state's constitutional ban on same-sex marriage. The next day, the 6th Circuit granted a stay of the order, pending appeal. However in the hours in between, some 300 same-sex couples married. (See prior posting.) In an announcement today (full text), U.S. Attorney General Eric Holder announced that the federal government would recognize these 300 marriages for purposes of eligibility for federal benefits.  He said in part:

The Governor of Michigan has made clear that the marriages that took place on Saturday were lawful and valid when entered into, although Michigan will not extend state rights and benefits tied to these marriages pending further legal proceedings.  For purposes of federal law, as I announced in January with respect to similarly situated same-sex couples in Utah, these Michigan couples will not be asked to wait for further resolution in the courts before they may seek federal benefits to which they are entitled.

Pakistani Court Sentences Christian Man To Death For Blasphemy

Reuters reported yesterday that a Pakistani court has convicted Sawan Masih of blasphemy and sentenced him to a fine and to death by hanging. Masih, a Christian, was charged with blasphemy last year after he allegedly made remarks against the Prophet Mohammed when he got into an argument with two men while drinking.  The incident led to Muslims burning down nearly 100 homes of Christians in Lahore. (See prior posting.) At least 16 people are on death row in Pakistan for blasphemy, but none have in fact been executed. 20 others are serving life sentences.

Judge Calabresi Interviewed On Establishment Clause

Religion & Politics yesterday published an interview with Guido Calabresi, senior judge on the U.S. 2nd Circuit Court of Appeals and former dean of Yale Law School, on his views of the Establishment Clause. Judge Calabresi authored the 2nd Circuit's opinion in Galloway v. Town of Greece, the legislative prayer case (see prior posting) that was argued this term and is awaiting decision by the U.S. Supreme Court.  Describing the 2nd Circuit's opinion, Calabresi said:

We took the position that a non-sectarian prayer is either a contradiction in terms or is an establishment. It is an establishment of the “okay” religions. Of “what we are all agreed on.” What we wanted to do was to find a way of allowing people to pray without having a town define itself as Christian—which was the claim about this case. But, keep in mind that, in our circuit, we also have Kiryas Joel, a town that wants to define itself as Satmar, a particular sect of the Jewish faith. In other words, we have many forms of the desire for self-definition, of the desire to say, in religious terms, “We are something.” What we came up with was the notion that a town can do anything it wants so long as it is open to every religion and non-religion.

U.S. Catholic Diocese Sues Diocese In Ireland Over Transfer of Abusive Priest

AP reported yesterday that an unusual lawsuit has been filed in court in Ireland by the U.S. Catholic diocese of New Ulm, Minnesota. The suit was filed in February against Diocese of Clogher in Ireland and the religious order, Servants of the Paraclete, alleging that in 1981 the Irish diocese transferred a priest, Rev. Francis Xavier Markey, to Minnesota without warning U.S. church officials that he had been accused of sexual abuse. The New Ulm diocese has been sued by a victim of Markey's.

Contempt Motion Filed Against Google Over "Innocence of Muslims" Video

As previously reported, last month in Garcia v. Google, Inc.,  the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a preliminary injunction should be granted to require the controversial film "Innocence of Muslims" to be removed from YouTube.  The decision came in a copyright suit filed by Cindy Lee Garcia who acted in a portion of the film. According to Hollywood Reporter, on Tuesday Cindy Garcia filed an emergency contempt motion (full text) with the 9th Circuit. The motion claims that a version of the video is still available on Google's worldwide platform, and is viewable in Egypt where a fatwa was issued for Ms. Garcia's execution.  According to the motion, Google insists that Ms. Garcia has the burden of informing it of every URL on its platforms that has the video before Google has an obligation to take it down. The motion also claims that Google has not taken down any copies of the video, but has merely disabled it so that the viewer sees a thumbnail and an explanation from Google.  In the meantime, Google is seeking en banc review of the 9th Circuit's decision.

Obama and Pope Francis Meet At The Vatican

As reported by AP, President Obama today met with Pope Francis at the Vatican. The Vatican Press Office issued a statement (full text) after the meetings, reading in part:

During the cordial meetings, views were exchanged on some current international themes and it was hoped that, in areas of conflict, there would be respect for humanitarian and international law and a negotiated solution between the parties involved. In the context of bilateral relations and cooperation between Church and State, there was a discussion on questions of particular relevance for the Church in that country, such as the exercise of the rights to religious freedom, life and conscientious objection, as well as the issue of immigration reform. Finally, the common commitment to the eradication of trafficking of human persons in the world was stated.

The White House released excerpts from the President's press conference on his audience with the Pope.  They read in part:

... [W]e had a wide-ranging discussion.  I would say that the largest bulk of the time was discussing two central concerns of his.  One is the issues of the poor, the marginalized, those without opportunity, and growing inequality.... 

And then we spent a lot of time talking about the challenges of conflict and how illusive peace is around the world....  I reaffirmed that it is central to U.S. foreign policy that we protect the interests of religious minorities around the world....

In terms of domestic issues, the two issues that we touched on -- other than the fact that I invited and urged him to come to the United States, telling him that people would be overjoyed to see him -- was immigration reform.... I described to him how I felt that there was still an opportunity for us to make this right and get a law passed.

And he actually did not touch in detail on the Affordable Care Act.  In my meeting with the Secretary of State, Cardinal Parolin, we discussed briefly the issue of making sure that conscience and religious freedom was observed in the context of applying the law.  And I explained to him that most religious organizations are entirely exempt.  Religiously affiliated hospitals or universities or NGOs simply have to attest that they have a religious objection, in which case they are not required to provide contraception although that employees of theirs who choose are able to obtain it through the insurance company.

And I pledged to continue to dialogue with the U.S. Conference of Bishops to make sure that we can strike the right balance, making sure that not only everybody has health care but families, and women in particular, are able to enjoy the kind of health care coverage that the AC offers, but that religious freedom is still observed.

District Court Enjoins Sectarian Invocations At County Council Meetings

In Hake v. Carroll County Maryland, (D MD, March 26, 2014), a Maryland federal district court granted a preliminary injunction barring Carroll County, Maryland commissioners opening their commission sessions with sectarian prayer.  Currently sessions are opened with a prayer led by one of the commissioners, on a rotating basis. The Board's voluntary guidelines for commissioners calls for them to "refrain from using Jesus, Jesus Christ, Savior, Prince of Peace, Lamb of God and the like."  However, during 2011-2012, at least 40% of the invocations contained sectarian Christian references, while no prayers made non-Christian sectarian references.  In finding that plaintiffs are likely to succeed on the merits of their Establishment Clause claim, the court said in part:

Although the podium guidelines discourage sectarian references, the Board has made no effort to curb the frequent sectarian references made by its own Commissioners.... At this time, the record indicates that the prayers invoked by Commissioners before Board meetings advance one religion to the exclusion of others.

The court ruled that Commissioners can continue to deliver non-sectarian invocations, but are enjoined from invoking the name of a specific deity associated with any specific faith or belief in their opining prayers. The American Humanist Association in a press release calls the decision "a major victory for separation of church and state."  The Baltimore Sun reports on the decision.  The U.S. Supreme Court this term has heard oral arguments in a case raising similar issues, and will decide the case within the next few months. (See prior posting.)

UPDATE: A March 27 release from the American Humanist Association says that a Carroll County commissioner defied the preliminary injunction and delivered a sectarian prayer at a county council meeting one day after the preliminary injunction was ordered. The AHA sent a contempt warning letter (full text) to counsel stating in part: "As a courtesy, we are going to refrain from seeking contempt charges against the commissioner in this one instance, in the hopes that today’s behavior was simply an emotional outburst made without the benefit of serious consideration of the rights of plaintiffs and others. She should understand, however, that any continued defiance of the court order will leave us with no choice but to seek a contempt order."

Religious Non-Profits Win Injunction Against Contraceptive Coverage Mandate Opt-Out Rules

In a 91-page opinion in Roman Catholic Archdiocese of Atlanta v. Sebelius, (ND GA, March 26, 2014), a Georgia federal district court permanently enjoined the government from requiring Catholic Education of North Georgia and Atlanta Catholic Charities to execute and deliver a self-certification form to the third-party administrator of their health care plans.  Final Rules under the Affordable Care Act require the self-certification for objecting religious non-profits to opt out of the requirement to provide coverage for contraceptive services.

The court concluded that the Final Rules impose a substantial burden on plaintiffs' free exercise rights under RFRA:

... [T]he plain terms of the Final Rules show that the purpose and effect of the self-certification form is to enable the provision of contraceptive coverage. The self-certification form is an integral part of the Government’s contraceptive coverage scheme..... [I]t is a Government imposed device that pressures the Plaintiffs into facilitating the contraceptive coverage to which they have sincerely held religious objections.....

The Court’s conclusion does not change even if the Government had argued, as it did in other cases, that it has no ERISA authority to require a church plan to contract with a TPA to provide contraceptive coverage.... It is the fact of the requirement that is important, not whether the Government will or will not choose to enforce it....

The court also concluded that the government had not shown a compelling interest for imposing the substantial burden:

The Government claims that exempting CENGI and Catholic Charities from the contraceptive mandate would hinder its ability to effectively and uniformly administer the requirements of the ACA. That claim is discredited by the Government’s advocacy in other church plan cases in which it has argued that plaintiffs lack standing because self-certification will not necessarily result in the delivery of contraceptive products and services..... 

The Government’s interests in promoting public health and providing women with equal access to health care also cannot be compelling because the contraceptive mandate does not apply to the insurance plans of millions of women in this country.... Grandfathered health plans, small businesses and religious employers are all exempt from the contraceptive mandate....

Finally the court concluded that the provision barring non-profits from seeking to influence the third party administrator's decision to provide contraceptive services is a presumptively invalid, content-based restriction on speech. Daily Report covers the decision.

NYC Transit Authority Must Pay $187,000+ In Plaintiffs' Attorneys Fees In Religious Discrimination Suit

In Small v. New York City Transit Authority, 2014 U.S. Dist. LEXIS 39582 (ED NY, March 25, 2014), a New York federal district court ordered the New York City Transit Authority to pay $187,570 in attorneys fees and $1450 in costs to two Muslim women who has sued the Transit Authority for religious and gender discrimination.  In the lawsuit:

Plaintiffs alleged that defendant removed them from passenger service as bus operators because they wore Muslim head coverings called khimars and refused to wear a hat to cover their khimars.

The suits, after being consolidated with 3 others raising similar claims on behalf of Muslim and Sikh drivers, were settled, granting damages, a new policy on wearing khimars and return of plaintiffs to their jobs.

Ecclesiastical Abstention Doctrine Leads To Dismissal of Suit Over Church's Board

In Ivanov v. Notzkov, 2014 Ill. App. Unpub. LEXIS 577 (IL App., March 25, 2014), an Illinois Court of Appeals affirmed the trial court's reliance on the ecclesiastical abstention doctrine in dismissing a lawsuit  between two factions of St. John of Rila Bulgarian Eastern Orthodox Church.  The court refused to order a membership meeting to elect a new board, relying on the trial court's findings that St. John's is governed by the Bulgarian Eastern Orthodox Church which gave the parish priest and archbishop authority to determine who are members in good standing that may vote in an election for the church's board. The trial court had concluded that passing on plaintiffs' claim that the clergy did not have the power to appoint members to the board of trustees would require it to decide matters of religious doctrine and polity.

Former Scientologist Sues Church For Return of Funds

Courthouse News Service reported yesterday on a lawsuit filed recently in a California state trial court against the Church of Scientology and a number of its affiliates. Plaintiff Vance Woodward, an attorney, seeks return of $200,000 he paid for "auditing" courses he never received, as well as punitive damages.  He contends that the Church took thousands of dollars from him and others through claims that Scientology would bestow superhuman powers on them. In total he turned over $600,000 to the church, $200,000 of which went for allegedly shoddy courses that were useless or harmful.  He claims the Church obtained his funds through psychological manipulation and abuse.

Community College Student Preacher Challenges Campus Speaker Rules

The Hampton Roads (VA) Daily Press reported yesterday on a lawsuit filed earlier this month by a Christian student against the board of the Virginia Community College System, the Hampton, Virginia-based Thomas Nelson Community College and various college officials.  The complaint (full text) in Parks v. Members of the State Board  of the Virginia Community College System, (ED VA, filed 3/13/2014), challenges the constitutionality of college rules that allow students to speak in open, outdoor areas of campus only if they are members of student organizations, and then only if they register their activity 4 days in advance.  Plaintiff, Christian Parks, was stopped after he began preaching in an open courtyard area on campus. The suit claims that the campus speaker rules violate the free speech, free exercise and due process clauses of the Constitution.

Tennessee Legislature Passes Student Religious Viewpoints Antidiscrimination Act

On March 24, the Tennessee General Assembly gave final passage to HB 1547 as amended, the Religious Viewpoints Antidiscrimination Act. The bill, which now goes to the governor for signature, requires schools to treat student voluntary expression of a religious viewpoint on an otherwise permissible subject the same as secular viewpoints are treated.  Schools must adopt a policy to prevent discrimination against religious viewpoints where students are chosen to speak at a school event. Students must be permitted to express their written beliefs about religion in homework and classwork, and may not be penalized or rewarded because of the religious content. Students must be allowed to sponsor religious student clubs and activities to the same extent as students are allowed to sponsor secular clubs and activities. The bill passed the House by a vote of 90-2, and passed the Senate by a vote of 32-0. The Advocate reports that the ACLU is urging Gov. Haslam to veto the bill.

California Enacts Special Exemption To Allow Abbot To Be Buried On Monastery Grounds

In California, Gov. Jerry Brown yesterday signed SB 124 which grants a special exemption to allow Abbot Theodor Micka, a co-founder of Holy Cross Monastery, to be buried on the monastery’s grounds. (Press release from Sen. Ellen Corbett.) Holy Cross is the only Orthodox Christian monastery in the San Francisco Bay Area. As reported by the San Francisco Chronicle, 75-year old Micka, now seriously ill, has lived at the monastery for nearly 35 years, and one of his last wishes was to be buried there.  The special exemption was needed because state law only allows burial permits to be issued for burial in a cemetery. [Thanks to James Sonne for the lead.]

Transcript and Summaries of Hobby Lobby Arguments In Supreme Court Today

The full transcript of the oral arguments earlier today in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius is now available from the Supreme Court's website.  Extensive reports on the oral arguments are available from Lyle Denniston (SCOTUS Blog) and the Washington Post,

UPDATE: Here is the audio of the oral arguments.

Fired Buddhist Employee Sues Claiming Failure To Accommodate Religious Beliefs

Courthouse News Service yesterday reported on a Title VII  religious discrimination lawsuit filed in Texas federal district court by the former director of marketing communications for a wireless network services company. Plaintiff Jef Mindrup, a Buddhist, claims he was fired because he refused to comply with a request by the company's co-founder that he add Biblical verses to the company's daily newsletter. His lawsuit alleges that the company "fail[ed] to accommodate plaintiff on the basis of his religion by requiring him to proselytize the Christian religion, a religion other than his own."

Court OK's Firing of 3 By Adventist University For Violating Church Doctrine

Last week the Riverside, California Press-Enterprise reported on a March 5 decision by a Riverside County Superior Court judge dismissing a lawsuit against Seventh Day Adventist-affiliated La Sierra University by the school's former vice president of development; former Arts and Science dean, and a former biology professor.  The three were pressured by the University's board president into resigning after they made derogatory remarks about church officials and violated church teachings on the consumption of alcohol.  School officials found out about remarks the three made when a conversation between them that had been recorded fell into officials' hands. (Transcript of conversation.) The trial court said in part: "the church is entitled to make its own decisions about how to respond when employees of a church-run school are deemed to have violated SDA (Seventh-day Adventist) doctrine."

A comment on the decision published by ReligiousLiberty​.TV contends:

While the official line was that the three plaintiffs had been caught drinking alcohol on an audio recording the real motivation had more to do with the heretofore untouched issue of creationism.  Two of the plaintiffs were outspoken critics of the Adventist view of literal creationism and the lawsuit revealed the concerns that church leadership has had regarding the way that Adventist beliefs had been downplayed at La Sierra.

UPDATE: Here is the full transcript of the March 5 summary judgment hearing in the case, Kaatz v. Graham.

City Council Members Have Legislative Immunity In Suit Over Zoning Vote

In American Islamic Center v. City of Des Plaines, (ND IL, March 24, 2014), an Illinois federal district court held that city council members are entitled to absolute legislative immunity from a suit against them for their vote against a zoning map amendment that would have permitted an Islamic center to build in an area currently zoned for manufacturing.  The Islamic Center's free exercise and equal protection claims can proceed only against the city itself. The court held that it need not decide at this juncture whether the Illinois Tort Immunity Act applies to claims under the Illinois Religious Freedom Restoration Act.  It permitted plaintiff to proceed with its claim that the zoning decision was arbitrary and capricious in violation of the state constitution.

Appeals Court Approves Transgender Name Change Over Trial Judge's Religious Objections

In In the Matter of the Application of James Dean Ingram To Change His/Her Name, (OK App., March 21, 2014), the Oklahoma Court of Civil Appeals reversed a trial court judge's refusal to allow transgender petitioner, who was in the process of a sex transition from male to female, to change her name from from James Dean Ingram to Angela Renee Ingram.  The appeals court held that the trial judge abused his discretion when he concluded that the name change was sought for an illegal or fraudulent purpose.  According to AP, the trial court judge, Oklahoma County District Judge Bill Graves, citing Biblical passages, had said:   "[A] sex change cannot make a man a woman or a woman a man.... The DNA code shows God meant for them to stay male and female."  The Oklahoma ACLU issued a press release announcing the Court of Civil Appeals' decision. In 2012, the appeals court reversed a similar denial by the same judge. (See prior posting.)

Britain's Law Society Taking Heat For Guidance To Lawyers On Drafting Wills For Muslim Clients

The Telegraph reports today that members of Britain's Parliament are calling for an investigation by the House of Commons into a March 13 Practice Note issued by The Law Society to assist British solicitors whose clients ask them to draw up wills that comply with Sharia law. (Full text of Sharia succession rules Practice Note.) Some are accusing The Law Society of giving its stamp of approval to wills that deny women an equal share of an estate and exclude "illegitimate" children or unbelievers.  The Law Society says it was merely responding to requests from lawyers for guidance in helping Muslim clients carry out their wishes.

Recent Articles of Interest

From SSRN:

• Daniel Schick, Keeping Up with the Principle of Neutrality: Why Courts Should Not Extend Elmbrook's Mistaken Establishment Clause Analysis, (Mississippi Law Journal, Vol. 84, Forthcoming).
• Philip Hamburger, Equality and Exclusion: Religious Liberty and Political Process, (March 10, 2014).
• Ronan McCrea, European Law and the Prohibition of the Veil, (March 4, 2011).
• Andra le Roux-Kemp, A Question of Life and Death, (Comparative and International Law Journal of Southern Africa 2013 46(1), 74-89).
• W. Cole Durham, Robert Theron Smith & William C. Duncan, A Comparative Analysis of Laws Pertaining to Same-Sex Unions, (March 14, 2014).
• James E. Wheeler, God, Guns and Others: Why Restrictions on Carrying Firearms in Church Conflict with a Moral Duty to Defend Others, (March 11, 2014).
• Benjamin L. Berger, Belonging to Law: Religious Difference, Secularism, and the Conditions of Civic Inclusion, (Osgoode Legal Studies Research Paper No. 16 (2013)).
• Benjamin I. Berger, The Virtues of Law in the Politics of Religious Freedom, (Journal of Law and Religion, Vol. 29, No. 3, 2014).
• Malick W. Ghachem, Religious Liberty and the Financial War on Terror, (First Amendment Law Review, Vol. 12, No. 1, 2013).

From SmartCILP:

• Max Guirguis, A Coat of Many Colors: The Religious Neutrality Doctrine From Everson to Hein, [Lexis link],  43 Stetson Law Review 67-118 (2013).

Background Sources For Tomorrow's Supreme Court Arguments in Hobby Lobby/ Conestoga

Tomorrow the U.S. Supreme Court hears oral arguments in the Hobby Lobby Stores and Conestoga Wood Specialties, Inc. cases-- two high profile religious freedom challenges by for-profit businesses to the Affordable Care Act contraceptive coverage mandate.  For those who want an introduction, a refresher, or further resources on the numerous and difficult legal and political issues involved in the cases, here are some sources:

• All briefs (parties and amici) in Hobby Lobby.
• All briefs (parties and amici) in Conestoga Wood Specialties.
• Lyle Denniston, Argument preview: Religion, rights, and the workplace (Scotus blog).
• Scotus blog's Contraceptive Mandate Symposium.
• Becket Fund's Resource Page on Hobby Lobby.
• Marty Lederman's Compendium of posts on Hobby Lobby and related cases from Balkinization blog.

6th Circuit, Critical of U.S. Marshals, Still Upholds Qualified Immunity In Seizure For Planned Parenthood Judgment

In Bray v. Planned Parenthood Columbia-Willamette, Inc., (6th Cir., March 21, 2014), the U.S. 6th Circuit Court of Appeals in an opinion highly critical of the U.S. Marshals Service and others nevertheless upheld the dismissal on qualified immunity grounds of a suit against two U.S. Marshals over a raid they conducted.  Planned Parenthood had obtained an $850,000 judgment against Michael Bray, a minister and anti-abortion activist who authored the book A Time To Kill,  and  previously spent 4 years in prison for his connection with bombings of abortion clinics.. (Background.) This lawsuit grew out of the execution of a writ to seize property to satisfy Planned Parenthood's judgment.  The writ specifically authorized seizure of Bray's computers, cameras, books and writings. Representatives of Planned Parenthood went along with the marshals  The 6th Circuit said:

If the facts alleged in the complaint are true, this case involves an incident that is more like home raids by Red Guards during China’s Cultural Revolution than  like what we should expect in the United States of America. A surprise raid was made on a judgment debtor’s home to enforce an order of execution on property of the debtor. The order was ostensibly for the purpose of obtaining property of value to be seized, but was obviously focused instead on all means for the debtor to express ideas....

Nonetheless, the officers are protected from suit by the doctrine of qualified immunity, because these constitutional rights were not clearly established at the time of the violations.... [T]he legal and factual scenario presented in this action is not identical to any the Sixth Circuit or the Supreme Court has previously addressed....

Couple Awarded $5.3M For Lengthy Denial of Utilities By FLDS Church

Last Thursday, a jury in an Arizona federal district court awarded damages totaling nearly $5.3 million to Ronald and Jinjer Cooke who sued after towns controlled by the Fundamentalist Church of Jesus Christ of Latter Day Saints in 2008 denied them access to water, sewers and electricity for the home they were building.  The Salt Lake Tribune reports the Cookes argued that the mostly polygamous towns of Colorado City, Ariz., and Hildale, Utah discriminated against them because they are not members of the FLDS Church. They eventually got electicity and sewage, but are still being denied water. The cities say that the Cookes moved in as a test case for the state of Utah's efforts to reform the trust that holds FLDS land in the cities. (See prior related posting.)

NYT Profiles Obama's Early Catholic Connections As Meeting With Pope Approaches

In anticipation of President Obama's March 27 visit to the Vatican, today's New York Times carries a long front-page article titled: The Catholic Roots of Obama’s Activism. Here is an excerpt:

[I]n the spring of 1987, Mr. Obama — himself not Catholic — was already well known in Chicago’s black Catholic circles. He had arrived two years earlier to fill an organizing position paid for by a church grant, and had spent his first months here surrounded by Catholic pastors and congregations. In this often overlooked period of the president’s life, he had a desk in a South Side parish and became steeped in the social justice wing of the church, which played a powerful role in his political formation.

This Thursday, Mr. Obama will meet with Pope Francis at the Vatican after a three-decade divergence with the church. By the late 1980s, the Catholic hierarchy had taken a conservative turn that de-emphasized social engagement and elevated the culture wars that would eventually cast Mr. Obama as an abortion-supporting enemy....  A White House accustomed to archbishop antagonists hopes the president will find a strategic ally and kindred spirit in a pope who preaches a gospel of social justice and inclusion..... 

But the Vatican — aware that Mr. Obama has far more to gain from the encounter than the pope does, and wary of being used for American political consumption — warns that this will hardly be like the 1982 meeting at which President Ronald Reagan and Pope John Paul II agreed to fight Communism in Eastern Europe.

Recent Prisoner Free Exercise Cases

In Tennyson v. Carpenter, (10th Cir., March 18, 2014), the 10th Circuit held that a federal district court wrongly dismissed as frivolous a Christian inmate's RLUIPA, 1st Amendment and retaliation claims growing out his suspension from the prison's "Praise Team" choir after choir music binders he kept in his cell were confiscated, and he filed a grievance over the incident.

In Oliver v. Harner, 2014 U.S. Dist. LEXIS 34137 (SD IL, March 17, 2014), an Illinois federal district court permitted an African-American inmate to proceed with his free exercise and equal protection complaints that the Caucasian chaplain and Caucasian warden denied him a kosher diet that conforms to African Hebrew Israelite beliefs. However the court denied a temporary restraining order and dismissed without prejudice plaintiff's conspiracy claims.

In Halloum v. Ryan, 2014 U.S. Dist. LEXIS 35077 (D AZ, March 18, 2014), an Arizona federal district court permitted a Muslim inmate to proceed with his complaint that his free exercise rights were infringed when he was denied a religious shaving waiver. A number of other claims were dismissed, including complaints that the chaplain rejected donated copies of the Qur'an and Muslim inmates were denied communal prayer on two mornings during Ramadan.

In Browning v. Seifert, 2014 U.S. Dist. LEXIS 35232 (ND WV, March 18, 2014), a West Virginia federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 35237, Jan. 28, 2014) and allowed an Orthodox Jewish inmate to proceed against most of the defendants on his complaint that he was denied him a kosher diet, the ability to wear religious apparel, and the right to worship weekly and on special holidays.

In Irby v. Cain, 2014 U.S. Dist. LEXIS 35419 (MD LA, March 17, 2014), a Louisiana federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 35123, Feb. 19. 2014) and dismissed an inmate's claim that he was retaliated against for refusing to attend a religious call-out at prison. The court concluded that the action taken against the inmate was merely de minimis adverse action.

In Roberts v. Schofield, 2014 U.S. Dist. LEXIS 35222 (MD TN, March 18, 2014), a Tennessee federal magistrate judge refused to grant preliminary injunction to stop the implementation of a vegan-type Kosher diet in Tennessee prisons.

In Bush v. Donovan, 2014 U.S. Dist. LEXIS 35325 (SD CA, March 17, 2014), a California federal district court dismissed a Muslim inmate's complaint that, among other things, he was denied a Qur'an and hindered in the practice of his Muslim faith.

In Long v. Stanislaus County Superior Court, 2014 U.S. Dist. LEXIS 35407 (ED CA, March 17, 2014), a California federal magistrate judge, relying on 11th Amendment immunity, dismissed (with leave to amend) an inmate's claim against a state court for forcing him to violate his religious objections to participating in psychology. The state court had ordered him to be evaluated by psychologists, given medication and placed in a mental hospital.

Trial Court Erred In Allowing Police To Remove Pastor At Request of Dissident Group

As reported by the Colorado Springs Gazette, in St. John’s Baptist Church Governing Body v. Sutton a Colorado state court of appeals on Thursday held that a state trial court judge acted improperly when he issued an order allowing police to remove a pastor from his pulpit.  The order came at the request of a dissident group in St. John's Baptist Church which formed a separate Governing Board in 2011 and ordered the pastor out. The Court of Appeals said in part:

The [trial] court made a decision regarding ecclesiastical internal governance and organization; it determined for the church who represented its interest, a governing decision belonging only to the church.

The Court of Appeals said that ownership of the church's property should be determined by the trial court through an examination of  deeds, articles of incorporation, bylaws and other documents. (Note: because of policies of the Colorado Court of Appeals, the full text of its unpublished opinions may not be posted on any electronic database.)

District Court Invalidates Michigan Ban on Same-Sex Marriage; 6th Circuit Stays Order

In DeBoer v. Snyder, (ED MI, March 21, 2014), a Michigan federal district court held that Michigan's state constitutional ban on same-sex marriage violates the 14th Amendment's equal protection clause.  The case began as a constitutional challenge to Michigan's adoption laws which only allow single persons or married couples to adopt.  Plaintiffs were a same-sex couple who were precluded from marrying under Michigan law.  The court invited plaintiffs to amend their complaint to challenge the Michigan Marriage Amendment which the court saw as the underlying reason plaintiffs could not jointly adopt children. Plaintiffs did so, and the court held a two-week trial, largely devoted to expert testimony about whether children raised by heterosexual parents did better than those raised by same-sex couples. The court's opinion discusses the expert testimony at length, ultimately concluding that the state has no rational basis for preventing same-sex couples from marrying. ACLU of Michigan issued a press release announcing the decision.

Ten minutes after the district court's March 21 opinion was handed down, Michigan state attorney general Bill Schuette filed an emergency motion asking the 6th Circuit to stay the district court's order, pending appeal. (Detroit Free Press.) On March 22, the 6th Circuit issued an order directing plaintiffs to respond by March 25, and a second order temporarily staying the district court's judgment until March 26 "to allow a more reasoned consideration of the motion."

Meanwhile, clerk's offices in four Michigan counties opened Saturday morning to allow same-sex couples to obtain licenses, and, according to AP, over 300 licenses were issued before the 6th Circuit called a halt to their issuance by its stay.  The attorney general's office declined to say whether the state would recognize these marriages, saying "the courts will have to sort it out."

New IRS Exempt Organization Head Speaks On Priorities

BNA Daily Report for Executives (subscription required) reports on the first public comments by Tamera Ripperda, the Internal Revenue Service's new director of Exempt Organizations.  Speaking yesterday at the Washington Non-Profit Legal and Tax Conference, she said that a key focus for IRS this fiscal year is to reduce the backlog of applications for tax exemptions.  Her goal is to close the oldest cases-- mostly applications under Section 501(c)(3)-- by the end of June. Examination of non-profits will focus on protection of charitable assets, activities that jeopardize exempt status, and international issues, and will involve an expanded use of data analytics.

Georgia Legislature Allows Guns In Churches That Want Them; Reduces Penalty For Carrying In Other Churches

As it wound up its legislative session, the Georgia General Assembly yesterday gave last minute final passage to HB 60 as amended which expands the places in which persons holding weapons-carry permits may bring firearms.  The bill, among other things, allows firearms to be carried in houses of worship if "the governing body or authority of the place of worship" permits it. However, the bill provides a minimal punishment for a person who holds a weapons carry licence and brings a weapon into a place of worship that has not opted permit firearms.  The person may not be arrested and may be fined not more than $100. The final version passed the Senate by a vote of 37-18 and the House by a vote of 112-58. The bill now goes to the governor for his signature. Atlanta Journal Constitution reports on the bill's passage.

Court Grants Stay Pending Appeal In Kentucky Same-Sex Marriage Case

In Love v. Beshear, (WD KY, March 19, 2014), a Kentucky federal district court granted a stay pending appeal to the 6th Circuit of its prior decision requiring recognition of same-sex marriages validly performed in other states. Previously the court had stayed its order only until March 20. (See prior posting.)  The state argued that failure to extend the stay would result in "chaos."  In granting the further stay pending appeal, the court found persuasive arguments on both sides, but said that it was strongly influenced by the U.S. Supreme Court's action in granting a stay in the Utah same-sex marriage case.  The district court said in part:

Perhaps it is difficult for Plaintiffs to understand how rights won can be delayed. It is a truth that our judicial system can act with stunning quickness, as this Court has; and then with sometimes maddening slowness. One judge may decide a case, but ultimately others have a final say. It is the entire process, however, which gives our judicial system and our judges such high credibility and acceptance.... It is best that these momentous changes occur upon full review, rather than risk premature implementation or confusing changes. That does not serve anyone well.

Louisville Courier-Journal reports on the decision. [Thanks to Tom Rutledge for the lead.]

Muslim Woman Sues Gym For Refusing To Allow Head Covering

The Albuquerque Journal reported yesterday on a religious and racial discrimination lawsuit filed in New Mexico state court by a Muslim woman (who is also African-American) who was not permitted to enter a Planet Fitness gym because she was wearing a head covering. A Planet Fitness attorney says the gym did not know the head covering was for religious purposes and that it violated the gym's dress code that prohibits jeans, work boots, bandanas, skull caps and revealing apparel. Plaintiff Tarainia McDaniel, who holds a two-year membership in the gym, says she was told that while the dress code was sometimes waived, it could not be in her case because her head covering was red. The lawsuit alleges racial and religious discrimination in violation of the New Mexico Human Rights Act and the New Mexico Unfair Practices Act.

Appeals Court Upholds Religious Restrictions As To Children In Divorce Case

In In re the Marriage of Suzanne Paulsen and Timothy Paulsen, (WA App., March 19, 2914), a Washington state appeals court upheld a trial court's parenting plan that was entered along with a decree dissolving the marriage of the Paulsens. Among other restrictions on the father, the appeals court upheld the trial court's award to the mother, Suzanne Paulsen, of sole decision-making power as to the children's religious upbringing.  It also affirmed the trial court's ban on the father, Timothy Paulsen, engaging in prayer or discussion of religious matters with the children.  The religious restrictions, as well as visitation restrictions, were justified by evidence that Timothy, as a junior high school teacher, had sexually abused students, using religion and prayer as a technique to weaken their defenses to his sexual approaches.

Court Upholds Conviction of Pastor For Conspiracy To Commit Child Abuse

In State of Wisconsin v. Caminiti, (WI App., March 20, 2014), a Wisconsin state court of appeals upheld the conviction of the pastor of a small, close-knit religious community on eight counts of conspiracy to commit child abuse.  Philip Caminiti taught his followers that they should discipline fussy infants starting as young as 2 or 3 months by forcefully striking their bare bottoms with wooden spoons and dowels. He claimed that the Bible gives specific instruction on what tools to use, and he demonstrated to his congregation the correct degree of force.  During church services Caminiti would look at parents whose child was crying to indicate that they should discipline the child. The court rejected Caminiti's free expression, free exercise of religion and parental rights defenses. The court held that the state has a compelling interest in preventing child abuse, and that the state's "reasonable discipline" privilege for parents strikes an appropriate constitutional balance.

Court Refuses To Permit Interlocutory Appeal In Case Challenging Compliance With Church Plan Exemption To ERISA

In Rollins v. Dignity Health, (ND CA, March 17, 2014), a California federal district court refused to permit an interlocutory appeal of a decision holding 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. (See prior posting.)  The court concluded that the issue presented does not rise to the level of a "controlling question of law" which must be shown to justify appeal before the case is finally decided.  The court said:

If Dignity’s plan were not exempt, the Court would still have to consider Dignity’s ERISA compliance. And if the Dignity plan was held to be exempt, the Court would then have to consider Rollins’s claim regarding the constitutionality of such an exemption. Given these complicated, possibly divergent, and even potentially convergent paths the litigation could take, the Court agrees with Dignity that an interlocutory appeal could significantly alter the course the litigation would take. Nevertheless, the Court concludes that the issue proposed for appeal would not so materially affect the entire nature of the litigation, or its outcome, to justify interlocutory review.

As reported by BNA Daily Report for Executives (subscription required), the case is one of five class actions around the country filed last year challenging pension plan sponsors' reliance on the church plan exemption to justify non-compliance with ERISA. A sixth class action raising the same kind of challenge was filed earlier this week.

British Court Dismisses Fraud Charges Against President of Mormon Church

In Phillips v. Monson, (Westminster Magistrate's Court, March 20, 2014), a British magistrate's court set aside two summonses for fraud that were issued by the court last month ordering the president of the Church of Jesus Christ of Latter-day Saints to appear to answer to charges that seven specified teachings of the Mormon church violated Britain's Fraud Act 2006. The summons were issued on the complaint of a private citizen-- a former member of the Mormon church who runs a website critical of the church. (See prior posting.) In yesterday's decision, the court concluded that the essential elements of a fraud violation were not set forth in the information presented. The magistrate judge went on to find:

It is obvious that this proposed prosecution attacks the doctrine and beliefs of the Mormon Church, and is aimed at those beliefs rather than any wrong-doing of Mr. Monson personally.  The purpose is to use criminal proceedings to expose the false (it is said) facts on which the church is based.

.... To convict, a jury would need to be sure that the religious teachings of the Mormon Church are untrue or misleading.... No judge in a secular court in England and Wales would allow that issue to be put to a jury.  It is non-justiciable.

I am satisfied that the process of the court is being manipulated to provide a high-profile forum to attack the religious beliefs of others.  It is an abuse of the process of the court.

BBC News and Deseret News report on the decision. [Thanks to Austin Smith for the lead.]

Fred Phelps, Founder of Anti-Gay Westboro Baptist Church, Dies

As reported by CNN, Fred Phelps, Sr., founder of the Topeka, Kansas- based Westboro Baptist Church, died today at age 84.  Members of the church became known for their picketing of funerals of U.S. service members, as well as other events, with signs decrying homosexuality.  Perhaps their most famous sign read "God Hates Fags."  The church claims to have picketed over 53,000 events. It has extended its rhetoric to oppose to many other celebrities and religious groups as well.  Westboro's activity led to anti-funeral picketing laws being enacted at both the federal and state levels, and extensive litigation over some of those laws. It was reported earlier this week that elders in the Westboro Baptist Church had excommunicated Phelps. Wikipedia has more on Phelps' life.

IRS Says 2 Religious Organizations Do Not Qualify As Non-Profits

Last week, the Internal Revenue Service made public (with identifying information redacted) two Written Determinations handed down in December finding that two different religious organizations do not qualify for Section 501(c)(3) non profit status.

In Release No. 201411037, the IRS concluded that a church's earnings inure to the benefit of its president from whom the church leases an unusable warehouse building.  Over 80% of the church's revenues are used to pay rent, insurance and utilities on the building.

In Release No. 201411038, the IRS concluded that an organization formed to help small struggling synagogues throughout the United States develop strategic management plans is not operated exclusively for charitable, educational or religious purposes. A substantial part of the organization's operations involves offering in a commercial manner consulting and Jewish heritage travel tours. The revenues from these benefit the two founders of the organization.

Missing Malaysian Flight Generates Unusual Interfaith Cooperation In Malaysia

AP reports that the disappearance of Malaysia Airlines Flight 370 has led to interfaith cooperation in Malaysia that is unusual in light of the intense controversies between the country's Muslim majority and religious minorities (particularly Christians and Hindus). On Tuesday, an interfaith prayer service was held in a Kuala Lumpur shopping mall-- with participation by Muslims, Christians, Buddhists, Hindus and Taoists. Interfaith prayer services in the past have never had Muslim participation.