In Holland v. Goord, (2d Cir., July 10, 2014), the 2nd Circuit, reversing in part a district court's decision, held that ordering a Muslim inmate to drink water in violation of his Ramadan fast in order to provide a urine sample substantially burdened his free exercise rights.
In McCormack v. Reinke, 2014 U.S. Dist. LEXIS 91356 (D ID, July 2, 2014), an Idaho federal district court dismissed for failure to prosecute a Native American inmate's complaint regarding tearing down of the prison's sweat lodge and alleged retaliation for complaining that failure to provide wood for the sweat lodge violated a previous settlement agreement.
In Villapando v. CDCR, 2014 U.S. Dist. LEXIS 91965 (ED CA, July 3, 2014), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that a change in allowable religious property omitted certain items necessary for Native American religious practices.
In Hines v. Illinois Department of Corrections, 2014 U.S. Dist. LEXIS 92474 (SD IL, July 8, 2014), an Illinois federal district court permitted a Muslim inmate to proceed with various 1st Amendment, RLUIPA and 8th Amendment claims alleging that the vegetarian diet provided to him did not meet Halal requirements, and that he was retaliated against for complaining about non-halal turkey chili served to him.
In Mauwee v. Cox, 2014 U.S. Dist. LEXIS 93241 (D NV, July 9, 2014), a Nevada federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 93239, June 17, 2014) and dismissed a Native American inmate's complaint that a corrections officer desecrated his religious group's ceremonial deer antlers. Defendant mistakenly ordered the antlers to be blunted to 8 inches instead of the allowable 18 inches.
In Salas v. Gomez, 2014 U.S. Dist. LEXIS 93536 (ND CA, July 9, 2014), a California federal district court permitted a Jewish inmate to proceed with his complaint that his food has been inedible and does not meet kosher standards, and that he is being denied access to Jewish scriptures.
In Baumgarten v. Maryland Division of Corrections, 2014 U.S. Dist. LEXIS 93601 (D MD, July 10, 2014), a Maryland federal district court dismissed both for failure to exhaust administrative remedies and on the merits a claim by a Jewish inmate that he was denied kosher meals, and a corrections officer ripped the cover off his religious book.
In Irvin v. James, 2014 U.S. Dist. LEXIS 94064 (ED CA, July 9, 2014), a California federal magistrate judge recommended permitting a Muslim inmate to proceed on his complaint that after the former chaplain left officials denied chapel access, special food for festivals, and receipt of religious packages, and delayed hiring a new Muslim chaplain.
Sunday, July 13, 2014
Christian College Gets Title IX Religious Exemption For Housing Of Transgender Students
George Fox University, a Christian University with Quaker roots, reports that on May 23 the U.S. Department of Education granted it a religious exemption from the Title IX Education Amendments of 1972 relating to non-discrimination in housing and facilities. The Oregon-based school says it applied for the exemption "to preserve its right to draw on its religious convictions to handle situations related to students experiencing gender identity issues." It adds that other colleges have received similar exemptions in the past.
The facts need to be pieced together from the University's posting, an article last Friday in PQ Monthly and an earlier report by PQ Monthly. Apparently an African-American transgender student, who is entering his junior year, was living in female-only campus housing when the student began the medical, social and legal gender transition. Last April the student, "Jayce M." requested to move from female-only on-campus housing to male-only on-campus housing. The University denied the request, but presented the option of living off campus with other males (conditioned on completing name and gender changes on his driver's license and Social Security records) or living on campus in a single room.
As Jayce M prepared to appeal the school's denial of male on-campus housing to the Department of Education as a violation of Title IX's anti-discrimination provisions, the school applied for the Title IX exemption and was granted it in an unusually speedy two-months. On the basis of the newly-granted exemption the Department of Education earlier this month closed Jayce M's appeal. His lawyer says that they now plan to appeal the Department of Education's ruling.
The facts need to be pieced together from the University's posting, an article last Friday in PQ Monthly and an earlier report by PQ Monthly. Apparently an African-American transgender student, who is entering his junior year, was living in female-only campus housing when the student began the medical, social and legal gender transition. Last April the student, "Jayce M." requested to move from female-only on-campus housing to male-only on-campus housing. The University denied the request, but presented the option of living off campus with other males (conditioned on completing name and gender changes on his driver's license and Social Security records) or living on campus in a single room.
As Jayce M prepared to appeal the school's denial of male on-campus housing to the Department of Education as a violation of Title IX's anti-discrimination provisions, the school applied for the Title IX exemption and was granted it in an unusually speedy two-months. On the basis of the newly-granted exemption the Department of Education earlier this month closed Jayce M's appeal. His lawyer says that they now plan to appeal the Department of Education's ruling.
Friday, July 11, 2014
Senate Democrats Propose Bill To Overrule Hobby Lobby Decision
On Wednesday, Senators Patty Murray and Mark Udall announced that they have introduced the "Protect Women's Health From Corporate Interference Act" (full text) (summary). The bill is designed to overrule the Supreme Court's recent Hobby Lobby decision by excluding Affordable Care Act requirements from the provisions of the Religious Freedom Restoration Act. The bill provides in part:
UPDATE: In a July 16 vote, the Senate failed to invoke cloture so it could move to consideration of the bill. The vote, largely along party lines, was 56-43. Sixty votes are required to invoke cloture.
(a) ... An employer that establishes or maintains a group health plan for its employees ... shall not deny coverage of a specific health care item or service with respect to such employees (or dependents) where the coverage of such item or service is required under any provision of Federal law or the regulations promulgated thereunder....
... Subsection (a) shall apply notwithstanding any other provision of Federal law, including Public Law 103–141 [Religious Freedom Restoration Act].According to The Hill, the Senate Bill has 35 co-sponsors.
UPDATE: In a July 16 vote, the Senate failed to invoke cloture so it could move to consideration of the bill. The vote, largely along party lines, was 56-43. Sixty votes are required to invoke cloture.
Canadian Trial Court Awards Damages Against Religious Order In Sex Abuse Class Action
According to Canadian Press, a Quebec trial court ruled yesterday that the Catholic order of priests, the Redemptorist Order, is liable in a class action to all sexual assault victims who attended Saint-Alphonse Seminary in Quebec City between 1960 and 1987. Nine priests are also named in the suit, but 6 of them are dead and the other 3 say they are living in poverty. Under the court's verdict, each victim will receive at least $75,000, and some will receive $150,000. So far, 70 former students have have filed alleging they were abuse victims.
Supreme Court Rejects Attempt By County Clerk To Appeal Pennsylvania Same-Sex Marriage Decision
As reported by SCOTUS Blog, on July 9 U.S. Supreme Court Justice Samuel Alito denied an application for a stay filed by a Pennsylvania clerk of courts. The applicant was seeking to intervene in a lawsuit decided by a district court in order to appeal the district court's invalidation of Pennsylvania's ban on same-sex marriage. State officials had declined to appeal. The Supreme Court's docket entry in Santai-Gaffney v. Whitewood denying the application to intervene cited the Court's denial of a stay last month in an attempt by the National Organization for Marriage to intervene to appeal the invalidation of Oregon's same-sex marriage ban.
Non-Religious Non-Profit Sues To Challenge Contraceptive Coverage Mandate
In another permutation of the challenges to the Affordable Care Act contraceptive coverage mandate, a federal lawsuit was filed earlier this week by March for Life. The complaint (full text) in March for Life v. Burwell, (D DC, file 7/7/2014), alleges that while plaintiff is a non-profit pro-life organization that opposes providing certain contraceptive coverage to its employees, it does not qualify for the "accommodation" that permits an opt out in favor of coverage directly from the insurance company because March for Life does not hold itself out as a "religious organization." The complaint goes on to allege that the mandate violates the religious freedom rights of March for Life employees by requiring them to accept insurance plans that provide coverage for abortifacients. It also claims that the mandate violates its equal protection rights and the Administrative Procedure Act. ADF issued a press release on the case.
Thursday, July 10, 2014
ABA Opens Nominations For Best Legal Blogs of 2014
The ABA Journal announced yesterday that it is opening nominations for its "2014 Blawg 100" awards. Religion Clause has been honored to be on the Blawg 100 list for 5 out of the last 7 years. If you would like to nominate Religion Clause, or any other legal blog, as one of the top 100, you may do so in 500 characters or less at this link. The nominations-- so-called "friend-of-the-blawg briefs"-- must be submitted by 5 p.m. ET on Aug. 8, 2014.
LGBT Rights Groups Withdraw Support For ENDA Over Religious Exemptions
US News reported yesterday that a number of LGBT and civil rights groups have decided to withdraw their support for the Employment Non-Discrimination Act (ENDA), now believing that the religious exemption in the version that has passed the Senate (S. 815) is too broad. The shift in attitude has been prompted by increased assertion of religious beliefs as a basis for discriminating against gays and lesbians. Among the groups withdrawing their support are the National Gay and Lesbian Task Force, the ACLU, Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center.
Archdiocese Settles Abuse Suit While Denying Its Validity
Last Monday, the Catholic Archdiocese of St. Louis issued a press release disclosing that it has settled a lawsuit brought by a female plaintiff identified as Jane Doe 92. Doe 92 claimed that she was sexually abused by Joseph Ross, a priest who was removed from the ministry in 2002. In 1988 Ross plead guilty to a misdemeanor stemming from his inappropriate touching of a young boy. The Archdiocese said that Ross is a known abuser and it is not defending him. However it continues to assert that Jane Doe's allegations are false, saying that she:
has been diagnosed, by her own treating doctors, with a medical condition that causes her to falsify claims, exaggerate symptoms and make inconsistent statements. Her own doctors and expert witnesses voiced doubts about her allegations and noted that they contained multiple inconsistencies.
Religion Becomes Issue In Arkansas Senate Race
Earlier this week, ABC News reported on the prominent place that religion has assumed in the race for U.S. Senate in Arkansas. In a television interview last week, Republican Rep. Tom Cotton, seeking to capture the Senate seat from incumbent Sen. Mark Pryor, commented on the Supreme Court's Hobby Lobby decision, saying:
It's another example of how Obamacare infringes on the liberties of all Arkansans. Barack Obama and Mark Pryor think that faith is something that only happens at 11 on Sunday mornings.In response, in a television ad running state-wide,Pryor, holding a Bible, says:
I'm not ashamed to say that I believe in God, and I believe in His word. The Bible teaches us no one has all the answers, only God does.
Wednesday, July 09, 2014
Report Says Muslim-Americans Included In NSA-FBI E-mail Monitoring
According to a lengthy report at The Intercept today, documents from whistleblower Edward Snowden reveal that the NSA and FBI have secretly monitored e-mails of several prominent Muslim-Americans, including Nihad Awad (executive director of CAIR), Agha Saeed (former Cal State professor and Muslim civil liberties activist); Hooshang Amirahmadi (Iranian-American Rutgers professor); Asim Ghafoor (attorney who has represented clients in terrorism cases); and Faisal Gill (Republican Party operative who served in Department of Homeland Security). The FBI is listed as the "responsible agency" for monitoring of these five individuals. The reasons for including their e-mail addresses in the nearly 7,500 monitored remain classified.
UPDATE: The Office of the Director of National Intelligence and the Department of Justice on July 9 issued a statement (full text) apparently in response to The Intercept report, saying in part:
UPDATE: The Office of the Director of National Intelligence and the Department of Justice on July 9 issued a statement (full text) apparently in response to The Intercept report, saying in part:
It is entirely false that U.S. intelligence agencies conduct electronic surveillance of political, religious or activist figures solely because they disagree with public policies or criticize the government, or for exercising constitutional rights..... On the other hand, a person who the court finds is an agent of a foreign power under this rigorous standard is not exempted just because of his or her occupation.
Guantanamo Bay Detainees Argue Hobby Lobby Decision Makes RFRA Applicable To Them
AlJazeera reports on emergency motions filed last week in D.C.'s federal district court on behalf of two Guantanamo Bay detainees for temporary restraining orders to prohibit the government from denying the detainees the right to participate in communal prayer during Ramadan. The motions in Hasan v. Obama (full text) and Rabbani v. Obama (full text), both filed July 3 by the British advocacy organization Reprieve, argue that the previous D.C. Circuit decision in Rasul v. Myers holding that Guantanamo Bay detainees are not persons protected by the Religious Freedom Restoration Act has effectively been overruled by the Supreme Court's recent Hobby Lobby decision. As the argument is framed in the Rabbani motion:
The holding and express reasoning in Hobby Lobby makes Rasul a dead letter. Rasul relied on Supreme Court case law that predated Smith and excluded nonresident aliens from the scope of constitutional protections guaranteed by the Fourth and Fifth Amendments. Hobby Lobby wholly undermines Rasul by holding that the pre-Smith Supreme Court case law does not restrict the scope of “person[s]” protected by the RFRA, which Congress intended to exceed the scope of constitutional protection as set forth in the pre-Smith case law. Hobby Lobby instructs that the scope of “person[s]” protected by the RFRA is to be determined by reference to the definition of “person” in the Dictionary Act, not by reference to the pre-Smith case law.
... The Guantanamo Bay detainees, as flesh-and-blood human beings, are surely "individuals," and thus they are no less "person[s]" than are the for-profit corporations in Hobby Lobby or the resident noncitizens whom Hobby Lobby gives as an example of persons to whom the RFRA must apply.
A hearing on the emergency motions is scheduled for tomorrow morning.
Connecticut Synagogue Files RLUIPA Challenge To Zoning Denial
In Greenwich, Connecticut the Greenwich Reform Synagogue has filed a federal lawsuit challenging the Planning and Zoning Board of Appeals' refusal, on a 2-2- vote, to grant it a zoning exemption needed for final approval of its planned new building. As reported by Greenwich Time, the suit, presumably invoking the Religious Land Use and Institutionalized Persons Act, alleges that the denial is burdensome and discriminatory, and treats the synagogue less favorably that the city has treated requests from churches and non-religious institutions.
Court Rules On Various Establishment Clause Challenges To Veterans Memorial
Hewett v. City of King, (MD NC, July 8, 2014), is a challenge to various religious practices at the Veterans Memorial in a King, North Carolina park. The most controversial of the practices were: (1) the flying of a Christian flag along with ten other military, U.S., state and city flags. In a policy that changed over time, ultimately the Christian flag was flown 47 weeks a year on a pole that was designated a limited public forum. And (2) the placing of a stature of a soldier kneeling in front of a cross as part of the memorial. In a 110-page opinion, a North Carolina federal district court ruled that the question of whether these violated the Establishment Clause should proceed to trial on issues of disputed fact.
Plaintiff also objected to various memorial events held at the Veterans Memorial. The court concluded as a matter of law that the city's involvement in arranging and participating in events at which speakers deliver overtly Christian messages violated the Establishment Clause. However the appearance of the city's fire truck at these events, the granting of perpetual permits to host annual ceremonies, installation of pavers, the participation of the mayor in non-religious ways in memorial ceremonies and certain other activities did not amount to endorsement by the city or excessive entanglement. Americans United issued a press release announcing the decision.
Plaintiff also objected to various memorial events held at the Veterans Memorial. The court concluded as a matter of law that the city's involvement in arranging and participating in events at which speakers deliver overtly Christian messages violated the Establishment Clause. However the appearance of the city's fire truck at these events, the granting of perpetual permits to host annual ceremonies, installation of pavers, the participation of the mayor in non-religious ways in memorial ceremonies and certain other activities did not amount to endorsement by the city or excessive entanglement. Americans United issued a press release announcing the decision.
Episcopal Diocese Settles With Break-Away Congregations Without Lawsuit
Episcopal News Service yesterday reported on the final steps in an amicable settlement between the Episcopal Diocese of Olympia, Washington and two break-away congregations that ultimately joined the more conservative Anglican Church In North America. (Background.) Unusual in this time of litigation, the settlement was reached over ten years without any lawsuits being filed. Two years after the 2004 split, the parties signed a covenant agreement that called for no legal action to be taken before 2014, and for the break-away congregations to temporarily continue to meet in the meantime in their traditional buildings. Now those properties have been returned fully to the Episcopal Diocese, and the break-away congregations have found worship space elsewhere.
EEOC Sues Over Nursing Home's Ban On Hijab
The EEOC announced Monday that it filed suit last month against an Alabama nursing home for refusing to accommodate a Muslim employee's request to wear her hijab. Tracy Martin, hired as a certified nursing assistant by Shadecrest Healthcare Center filed an EEOC complaint after she was told to remove her head covering. Several weeks after the nursing home received notice of the complaint, Martin was summarily fired.
Tuesday, July 08, 2014
Pakistan Officials Agree On Creating National Commission For Minorities
The Nation today reports that after a year of deliberations, the government and the opposition party in Pakistan have agreed on the framework and composition of a National Commission for Minorities. The Commission will be comprised of ten members from different religions. Finance Minister Ishaq Dar says that four of the commissioners will be Muslim, two Christians, two Hindus, one Parsi and one Sikh. Names of the ten have been agreed upon.
Another Challenge To Idaho's Same-Sex Marriage Laws-- Now By Lesbian Veteran Over Burial Rights
A federal court challenge to Idaho's refusal to recognize same-sex marriages performed elsewhere was filed yesterday by a 74-year old Navy veteran who wants to be cremated and have her ashes interred together with those of her already-deceased same-sex spouse. Plaintiff Madelynn Lee Taylor brought her spouse's ashes with her back to Idaho where the couple had lived together. The complaint (full text) in Taylor v. Brasuell, (D ID, filed 7/7/2014), alleges that the sole reason the Idaho State Veterans Cemetery refused her request to make these advance arrangements is Idaho's laws prohibiting recognition of Taylor's 2008 California marriage to her long-time partner. NCLR issued a press release and AP reports on the case. In an unrelated case in May, a magistrate judge in the same federal district court struck down Idaho's laws barring same-sex marriage. (See prior posting.) However subsequently the 9th Circuit in Latta v. Otter (May 20, 2014), granted a stay of the decision while it is on appeal.
Belfast Bakery Faces Suit Over Refusal To Decorate Cake In Support of Gay Marriage
Mail Online reported yesterday on the latest clash in Britain between Christian business owners and gay rights proponents. Activist Gareth Lee ordered a cake from Christian-run Ashers Baking Company in Belfast. He wanted the cake decorated with the name of his organization, QueerSpace, two Sesame Street characters and the words "Support Gay Marriage." A bakery staff member accepted the order, but the owners and manager of the family-run company called Lee, offering a refund and refusing to produce the cake on religious grounds. Lee complained to Northern Ireland's Equality Commission which wrote the bakery saying that the refusal violates the public accommodation non-discrimination provisions (Regulation Five) of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. The Commission said it would file suit within 7 days of the letter.
Diocese Objects To Louisiana Supreme Court Decision On Priest-Penitent Privilege
The Baton Rouge (LA) Advocate reported yesterday on the Louisiana Supreme Court's per curiam opinion and a concurrence in Parents of Minor Child v. Charlet, (LA Sup. Ct., April 4, 2014), a clergy sex-abuse case decided three months ago but only now receiving attention. As summarized by The Advocate:
The case involves a young girl who claims she was sexually abused by a now-deceased church parishioner but that her confession to a local priest fell on deaf ears.
The decision resuscitates a five-year-old lawsuit against the Roman Catholic Church of the Diocese of Baton Rouge, the Rev. Jeff Bayhi and others, and gave the girl, now an older teenager, the green light to testify and introduce evidence of “her own confession.”
At the same time, the state high court sent the case back to 19th Judicial District Court Judge Mike Caldwell, saying there is still a dispute “concerning whether the communications between the child and the priest were confessions per se and whether the priest obtained knowledge outside the confessional that would trigger his duty to report” sexual abuse allegations.Yesterday the Diocese of Baton Rouge posted a statement (full text) on its website strongly criticizing the Supreme Court's decision. The statement reads in part:
The Supreme Court of Louisiana ... remanded for further proceedings in the District Court to hold a hearing concerning whether or not there was a “confession.” We contend that such a procedure is a clear violation of the Establishment Clause of the U. S. Constitution. The Supreme Court of Louisiana cannot order the District Court to do that which no civil court possibly can—determine what constitutes the Sacrament of Reconciliation in the Catholic Church. Indeed, both state and federal jurisprudence make clear that there is no jurisdiction to adjudicate claims that turn upon such purely religious questions.
India's Supreme Court Rules Sharia Courts Legal As Advisory Bodies, But Should Not Issue Rulings Unless Requested By Party Affected
In Madan v. Union of India, (India Sup. Ct., July 7, 2014), petitioner challenged the legality of Muslim Sharia Courts set up around the country and supported by the All India Muslim Personal Law Board. The suit was filed after publicity about a case in which a Muslim Court ruled that a married woman who was raped by her father-in-law could no longer remain married to the son. The Fatwah in the case was apparently issued without its being requested by any of the parties immediately involved. A 2-judge panel of India's Supreme Court refused to order Muslim courts dissolved, saying:
A Qazi or Mufti has no authority or powers to impose his opinion and enforce his Fatwa on any one by any coercive method.... It has no legal sanction and can not be enforced by any legal process.... The person or the body concerned may ignore it ....However the court was troubled by Fatwas issued at the behest of third parties, saying that they create "serious psychological impact" on the person who chooses to ignore them. Therefore, it ruled that Muslim courts should not issue Fatwas affecting the rights, status or obligation of an individual unless that person has asked for a ruling. AP reports on the decision.
Monday, July 07, 2014
County Clerk Asking Supreme Court To Stay Decision Allowing Same-Sex Marriage In Pennsylvania
The Schuylkill County, Pennsylvania clerk of courts continues her efforts to intervene in order to appeal a federal district court's invalidation of Pennsylvania's ban on same-sex marriage. Last week, the 3rd Circuit in Whitewood v. Secretary Pennsylvania Department of Health, (3d Cir., July 3, 2014) issued a summary order affirming the district court's refusal to permit her to intervene. Remaining unhappy with the Governor's decision not to appeal the underlying decision permitting same-sex marriage, county clerk Theresa Santai-Gaffney is now asking the U.S. Supreme Court to stay pending appeal the district court's order striking down the state's laws banning same-sex marriage. In a petition filed Friday with Justice Alito (full text), she argues that when the Supreme Court granted a stay pending appeal to the state of Utah in a similar case, it signaled all lower federal courts that they should do the same. SCOTUS Blog reports more details.
Algeria Plans To Reopen Synagogues, Though Few Jews Left In Country
According to JTA, Algeria's Religious Affairs Minister last week said that the country is prepared to reopen synagogues. They were closed down in the 1990's for security reasons. However security arrangements need to be set up before the step is taken. It is estimated that only a tiny number of Jews remain in Algeria.
Recent Articles and Books of Interest
From SSRN:
Recent and Forthcoming Books:
- Benjamin L. Berger, Poetry, Mercy, and the Phenomenology of Justice, (Forthcoming in Ehud Ben Zvi, Claudia V. Camp, David M. Gunn and Aaron W. Hughes, eds., Poets, Prophets, and Texts in Play: Studies in Biblical Poetry and Prophecy in Honour of Francis Landy (London: T & T Clark, 2014)).
- Marie A. Failinger, Twenty-Five Years of Law and Religion Scholarship: Some Reflections, (Touro Law Review, Vol. 30, p. 9 (2014)).
- Wojciech Sadurski, Searching for Illicit Motives: Constitutional Theory of Freedom of Speech, Equal Protection, and Separation of State and Religion, (Sydney Law School Research Paper No. 14/61, July 2014).
- Michael J. T. McMillen & Sheikh Yusuf Talal DeLorenzo, Islamic Finance and the Shari'Ah: The Dow Jones Fatwa and Permissible Variance as Studies in Letheanism and Legal Change, (June 23, 2014).
- András Koltay, The Appearance of the Clear and Present Danger Doctrine In Hungarian Hate Speech Laws and the Jurisprudence of the European Court of Human Rights, (June 23, 2014).
Recent and Forthcoming Books:
- Matthew Stewart, Nature's God: The Heretical Origins of the American Republic, (W.W. Norton & Co., July 2014).
- Al-Qadi al-Nuʿman, Disagreements of the Jurists: A Manual of Islamic Legal Theory, (Edited and translated by Devin Stewart), (NYU Press, Jan. 2015).
- J. Judd Owen, Making Religion Safe for Democracy: Transformation from Hobbes to Tocqueville, (Cambridge University Press, Jan. 2015).
Sunday, July 06, 2014
Recent Prisoner Free Exercise Cases
In Ford v. Bureau of Prisons, (3d Cir., June 30, 2014), the 3rd Circuit dismissed the complaint of a Nation of Islam inmate that he was not provided a meal after his fast on two holy days. The court also rejected his claim that discipline for a radical sermon he gave was retaliation.
In Lackey v. Midget, 2014 U.S. Dist. LEXIS 87289 (ED VA, June 25, 2014), a Virginia federal district court adopted a magistrate's recommendations and dismissed a Muslim inmate's complaint that on one evening he received an incomplete Ramadan meal.
In Lewis v. Hirsh, 2014 U.S. Dist. LEXIS 84648 (ED CA, June 20, 2014), a California federal magistrate judge gave an inmate 30 days to amend his pleadings, or else face dismissal of his complaint that prison authorities are attempting to cause him to violate his Christian Science faith by classifying him as a high medical risk.
In Spight v. Davidson, 2014 U.S. Dist. LEXIS 85671 (MD TN, June 23, 2014), a Tennessee federal district court dismissed a suit by a Seventh Day Adventist inmate who complained that officials would only allow him a vegetarian diet, and not a kosher diet that includes meat.
In Mingo v. Fischer, 2014 U.S. Dist. LEXIS 87231 (ND NY, June 26, 2014), a New York federal district court dismissed an inmate’s complaint that a prison staff member made disparaging remarks about his religion.
In Tate v. Dickinson, 2014 U.S. Dist. LEXIS 86577 (ED CA, June 24, 2014), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that he is limited to purchasing only 5 pre-selected fragrances of prayer oils.
In Joe v. Nelson, 2014 U.S. Dist. LEXIS 87560 (MD GA, June 27, 2014), a Georgia federal district court dismissed an inmate's complaint that unsanitary conditions in his cell meant that he had to wipe the floor before his daily prayers and on one day he could not perform 4 of his 5 daily prayers because of water flooding his cell.
In Johnson v. Corrections Corporation of America, 2014 U.S. Dist. LEXIS 87978 (SD CA, June 23, 2014), a California federal district court dismissed, with leave to amend, an inmate's complaint that the assistant warden would not authorize him to participate in the Ramadan fast.
In Mohamad v. Wenerowicz, 2014 U.S. Dist. LEXIS 89225 (ED PA, June 30, 2014), a Pennsylvania federal district court dismissed a Muslim inmate's complaint that he was unable to pray on a single day when he was kept in handcuffs for over two hours.
In Taylor v. Pearson, 2014 U.S. Dist. LEXIS 87657 (SD AL, June 27, 2914), an Alabama federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 88358, June 2, 2014) and dismissed without prejudice a suit by an inmate claiming his free exercise rights were infringed when he was required to cut his hair and sideburns in an unsanitary barbering facility. The dismissal was a sanction for plaintiff's failure to list in his application for in forma pauperis status 6 prior suits he had filed.
In Williams v. Roberts, 2014 U.S. Dist. LEXIS 89015 (ED CA, June 27, 2014), a California federal magistrate judge dismissed an inmate's claim that his free exercise rights were infringed when a commissioner at his parole hearing questioned his repeated changes in religious belief. Plaintiff had failed to follow through on either Alcoholics Anonymous or an Islam-based program for rehabilitation.
In Lackey v. Midget, 2014 U.S. Dist. LEXIS 87289 (ED VA, June 25, 2014), a Virginia federal district court adopted a magistrate's recommendations and dismissed a Muslim inmate's complaint that on one evening he received an incomplete Ramadan meal.
In Lewis v. Hirsh, 2014 U.S. Dist. LEXIS 84648 (ED CA, June 20, 2014), a California federal magistrate judge gave an inmate 30 days to amend his pleadings, or else face dismissal of his complaint that prison authorities are attempting to cause him to violate his Christian Science faith by classifying him as a high medical risk.
In Spight v. Davidson, 2014 U.S. Dist. LEXIS 85671 (MD TN, June 23, 2014), a Tennessee federal district court dismissed a suit by a Seventh Day Adventist inmate who complained that officials would only allow him a vegetarian diet, and not a kosher diet that includes meat.
In Mingo v. Fischer, 2014 U.S. Dist. LEXIS 87231 (ND NY, June 26, 2014), a New York federal district court dismissed an inmate’s complaint that a prison staff member made disparaging remarks about his religion.
In Tate v. Dickinson, 2014 U.S. Dist. LEXIS 86577 (ED CA, June 24, 2014), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that he is limited to purchasing only 5 pre-selected fragrances of prayer oils.
In Joe v. Nelson, 2014 U.S. Dist. LEXIS 87560 (MD GA, June 27, 2014), a Georgia federal district court dismissed an inmate's complaint that unsanitary conditions in his cell meant that he had to wipe the floor before his daily prayers and on one day he could not perform 4 of his 5 daily prayers because of water flooding his cell.
In Johnson v. Corrections Corporation of America, 2014 U.S. Dist. LEXIS 87978 (SD CA, June 23, 2014), a California federal district court dismissed, with leave to amend, an inmate's complaint that the assistant warden would not authorize him to participate in the Ramadan fast.
In Mohamad v. Wenerowicz, 2014 U.S. Dist. LEXIS 89225 (ED PA, June 30, 2014), a Pennsylvania federal district court dismissed a Muslim inmate's complaint that he was unable to pray on a single day when he was kept in handcuffs for over two hours.
In Taylor v. Pearson, 2014 U.S. Dist. LEXIS 87657 (SD AL, June 27, 2914), an Alabama federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 88358, June 2, 2014) and dismissed without prejudice a suit by an inmate claiming his free exercise rights were infringed when he was required to cut his hair and sideburns in an unsanitary barbering facility. The dismissal was a sanction for plaintiff's failure to list in his application for in forma pauperis status 6 prior suits he had filed.
In Williams v. Roberts, 2014 U.S. Dist. LEXIS 89015 (ED CA, June 27, 2014), a California federal magistrate judge dismissed an inmate's claim that his free exercise rights were infringed when a commissioner at his parole hearing questioned his repeated changes in religious belief. Plaintiff had failed to follow through on either Alcoholics Anonymous or an Islam-based program for rehabilitation.
Saturday, July 05, 2014
Preacher Sues To Gain Access To Sidewalk Outside Iowa State Fair
The Des Moines Register reports on a federal lawsuit filed last month by Jason Powell who wants to share his Christian message with persons going to the Iowa State Fair next month. He seeks a ruling that police acted unconstitutionally last year when they detained and photographed him after he insisted on holding a sign and preaching on the sidewalk just outside the entrance gate to the Fair. A police officer told Powell he had to move to the other side of the street. Powell's attorney says that the recent U.S. Supreme Court decision in McCullen v. Coakley striking down the abortion clinic buffer zone set up by Massachusetts law supports their case.
Lawsuit Challenges Lack of Availability of Plans Without Abortion Coverage On Health Insurance Exchange
The Providence (RI) Journal reports today on a lawsuit with a new twist on free exercise objections to the Affordable Care Act. Barth Bracy, director of the Rhode Island Right to Life Committee and a resident of Connecticut, along with his wife, filed suit two months ago because the only health care plans available through the Health Insurance Exchange in Connecticut include abortion coverage. All enrollees must pay a small separate fee for that coverage.
The complaint (full text) in Bracy v. Sebelius, (D CT, filed 5/1/2014), alleges that if the Bracys purchase a plan through the Exchange, they will receive nearly a 100% subsidy for its cost. But they can only obtain a plan that excludes abortion coverage by purchasing outside the Exchange and receive no subsidy. The premium on such a plan would be nearly double the $494 per month premium they are now paying. They allege that this violates their rights protected by the Free Exercise Clause, RFRA and the Connecticut Religious Freedom Restoration Act. They also claim that their 1st Amendment right to receive information is infringed by regulations that prohibit insurers or exchanges from advertising whether plans cover abortions, from informing enrollees prior to the time of enrollment whether the plan covers abortion, and prohibits telling enrollees the portion of their total premium that is allocated to abortion coverage.
The complaint (full text) in Bracy v. Sebelius, (D CT, filed 5/1/2014), alleges that if the Bracys purchase a plan through the Exchange, they will receive nearly a 100% subsidy for its cost. But they can only obtain a plan that excludes abortion coverage by purchasing outside the Exchange and receive no subsidy. The premium on such a plan would be nearly double the $494 per month premium they are now paying. They allege that this violates their rights protected by the Free Exercise Clause, RFRA and the Connecticut Religious Freedom Restoration Act. They also claim that their 1st Amendment right to receive information is infringed by regulations that prohibit insurers or exchanges from advertising whether plans cover abortions, from informing enrollees prior to the time of enrollment whether the plan covers abortion, and prohibits telling enrollees the portion of their total premium that is allocated to abortion coverage.
Friday, July 04, 2014
Supreme Court In Post-Term Order Enjoins Non-Profit Contraceptive Accommodation, Pending Appeal
It turns out that the U.S. Supreme Court was not completely finished with its work last Monday. Yesterday it granted an injunction to a religiously-affiliated liberal arts college that objects to complying with the Affordable Care Act contraceptive coverage accommodation for religious non-profits. Wheaton College, which was denied a preliminary injunction by an Illinois federal district court (see prior posting), applied to Justice Kagan for an emergency injunction pending appeal. Justice Kagan referred the application to the full court. In an order issued last Monday, separate from the full Order List for the day, the Court issued a temporary injunction and called for a response by Wednesday. On Thursday in Wheaton College v. Burwell, (S.Ct., July 3, 2014), in an unsigned order the court held:
If the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators....
[T]he applicant has already notified the Government—without using EBSA Form 700—that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds. Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.
In light of the foregoing, this order should not be construed as an expression of the Court’s views on the merits.Justice Scalia noted that he concurs in the result. Justice Sotomayor, in a strongly worded dissent, Joined by Justices Ginsburg and Kagan, said in part:
[J]ust earlier this week in Burwell v. Hobby Lobby Stores, Inc., ... the Court described the accommodation as “a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.” ... Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might ... retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution....
... I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so.The Washington Post and SCOTUS Blog both report on the Court's action.
Anti-Christian Video Clips Did Not Create Hostile Work Environment
Parker v. Side By Side, Inc., (ND IL, June 27, 2014), is a suit by a former employee of a Chicago bar that caters primarily to single gay men. Among other things, plaintiff, a non-denominational Christian, claimed religious harassment by co-workers that created a hostile work environment. The court concluded that it could not determine at the summary judgment stage whether the harassment had a religious character, or instead was political in nature, aimed at the political ideology of conservative Christians:
The line between religious and political beliefs—and, thus, the line between protected and non-protected characteristics under Title VII—is often muddy, especially in the context of social policy issues....However the court rejected the claim that videos played at the bar amounted to religious harassment, saying:
... [T]he allegedly offensive anti-Christian video clips ... do not contribute to the alleged hostility of his work environment. Sidetrack played the video clips during “Comedy Nights,” and it obtained all or at least a vast majority of the clips from mainstream broadcasts. None of the allegedly offensive material was directed at Plaintiff. Sidetrack, moreover, is known for playing comedic and other video clips on screens around the bar. The Court must evaluate the “totality of the circumstances” ..., but it need not—and must not—abandon common sense and sensitivity to social context in evaluating the alleged hostility. Just as a reasonable professional football player would not consider his working environment to be severely or pervasively hostile “if the coach smacks him on the buttocks as he heads onto the field,”..., a reasonable person in Plaintiff’s position would not view mainstream video clips played as part of Sidetrack’s Comedy Night events to create or even contribute to an allegedly hostile work environment.Volokh Conspiracy has more on the decision.
China Orders Muslims In Northwest Not To Observe Ramadan Fast
AP reports that schools, government agencies and Communist Party organizations in China's northwestern Xinjiang region have ordered students and civil servants in the region to avoid observing the traditional Ramadan fast that began Saturday night. The move comes in the midst of tightened security in the heavily Muslim region after attacks in May and June led to over 50 deaths. China blames the unrest on Muslim extremists with foreign terrorist ties, and fears that religious activities could become a rallying point for anti-government activity. Apparently earlier this week authorities in some towns held celebrations of the founding of the Communist Party and served food to find out whether Muslim attendees were fasting.
Christian Hip-Hop Group Sues Top Music Star For Copyright Infringement
The St. Louis Post Dispatch reports that earlier this week the members of the Christian hip-hop music group Flame filed a federal copyright infringement lawsuit against pop singer Katy Perry, Capitol Records and others involved in creating Perry's "mega-hit" song and music video, Dark Horse. The complaint (full text) in Gray v. Perry, (ED MO, filed 7/1/2014), alleges:
By any measure, the Dark Horse song also constitutes an infringement of Plaintiffs’ copyright in their Christian gospel song Joyful Noise, released five years before Dark Horse..... And by any measure, the devoutly religious message of Joyful Noise has been irreparably tarnished by its association with the witchcraft, paganism, black magic, and Illuminati imagery evoked by the same music in Dark Horse. Indeed, the music video of Dark Horse generated widespread accusations of blasphemy....
Rapzilla has comparative sound clips from the two songs designed to show that they differ only in pitch and tempo. The lawsuit asks for damages and injunctive relief.
Thursday, July 03, 2014
Faith Leaders Ask Obama To Include Religious Exemption In Planned LGBT Non-Discrimination Executive Order
In remarks (full text) at a June 30 White House reception celebrating LGBT Pride Month, President Obama announced that he has directed his staff to prepare two executive orders. One will prohibit discrimination by federal contractors on the basis of sexual orientation or gender identity. Another will expand the sexual orientation non-discrimination provisions applicable to federal employees to also include gender identity.
Meanwhile the Washington Post reports on a July 1 letter (full text) sent to the President by 14 clergy and faith-based organization leaders asking the President to include a religious exemption in any executive order on federal contractors and LGBT employment policy. The letter reads in part:
Meanwhile the Washington Post reports on a July 1 letter (full text) sent to the President by 14 clergy and faith-based organization leaders asking the President to include a religious exemption in any executive order on federal contractors and LGBT employment policy. The letter reads in part:
Without a robust religious exemption,, like the provisions in the Senate-passed ENDA, this expansion of hiring rights will come at an unreasonable cost to the common good, national unity and religious freedom....
While the nation has undergone incredible legal and social change over the last decade, we still live in a nation with different beliefs about sexuality. We must find a way to respect diversity of opinion on this issue in a way that respects the dignity of all parties to the best of our ability.... [A] religious exemption would simply maintain that religious organizations will not be automatically disqualified or disadvantaged in obtaining contracts because of their religious beliefs.
Religious Health Care Provider Loses Free Exercise Claim Against Medi-Cal Managed Care Plan
In Horisons Unlimited v. Santa Cruz-Monterey-Merced Managed Medical Care Commission, 2014 U.S. Dist. LEXIS 89030 (ED CA, June 27, 2014), a religious health care provider sued over actions of Alliance, the sole Medi-Cal manged care plan in the county. Alliance refused to credential the clinics' providers and allow new enrollments of Medi-Cal beneficiaries at the clinics. In addition to various antitrust claims, the clinic asserted infringement of its free exercise of religion. The court rejected the contention, saying:
An allegation that one member of Alliance's governing body "objected to" religious services at Horisons' clinics fails show or give rise to a reasonable inference that Alliance burdened Horisons' practice of religion by preventing Horisons from engaging in conduct mandated by Horisons' faith.
More Legal Problems For Christian Sudanese Woman
In Sudan, the case of Mariam Yahya Ibrahim-- whose father was Muslim, but who was raised by her mother as a Christian-- is becoming legally more complex. As previously reported, Ibrahim was initially sentenced to death for apostasy for embracing Christianity, but an appeals court last week overturned the sentence and released her from custody. (See prior posting.) However, as reported by Reuters, when Ibrahim, along with her Christian husband and her two children, attempted to fly out of the country, she was again briefly detained by police who charged her with using falsified travel documents. Sudanese authorities objected to her travel documents that were issued by the embassy of South Sudan. After being released by police last Thursday, she and her family took up temporary residence in the U.S. embassy in Khartoum. Now a lawsuit has been filed against her in the Khartoum Religious Court, brought by her father's family, seeking to establish she is a Muslim. If successful, that would presumably invalidate her marriage to her Christian husband (who is South Sudanese and holds American citizenship), and would impede her plans to leave Sudan.
Wednesday, July 02, 2014
Arbitrator Awards Damages For Diocese's Breach of Settlement Agreement In Clergy Sex Abuse Cases
In 2008, the Catholic Diocese of Kansas City- St. Joseph (MO) entered a settlement agreement in a lawsuit brought by 47 clergy sex abuse victims, paying them $10 million in damages and agreeing to a number of terms to prevent future abuse and aid past victims. The agreement included an arbitration clause. Yesterday's Kansas City Star reports that in 2011, 44 of the 47 settling plaintiffs filed suit in a Missouri state court seeking to force the Diocese to arbitration for violating the settlement agreement. The charges focused on the Diocese's delay in reporting to authorities their discovery of hundreds of images of young girls on the computer of priest Shawn Ratigan. (See prior related posting.) In March of this year, an arbitrator issued a report finding that the Diocese had breached five provisions of the settlement agreement, and awarded damages of $650,000, attorneys' fees of $450,000, $5,820 for unpaid counseling of sex abuse victims. The award was to remain confidential until one of the parties moved to have the court confirm or vacate it. On June 20, the Diocese filed a motion to vacate the award, and it then became public. The Diocese argues that there is nothing in the settlement agreement that authorizes the arbitrator to award additional damages. The arbitrator had said, however, that plaintiffs could have used the breaches as a basis for voiding the settlement agreement and obtaining an even larger award.
Court Enters Settlement Order In Dispute Over State Funding To Religious Child-Care Facility
In Pedreira v. Sunrise Children's Services, Inc., (WD KY, June 30, 2014), a Kentucky federal district court entered an order incorporating terms of a settlement between the parties in an Establishment Clause lawsuit, and retained jurisdiction to enforce the order. At issue was the long-running controversy over the state of Kentucky's funding treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization. The settlement requires the state to modify its contracts with child care agencies so that the religious affiliation or non-affiliation of children is respected. (See prior related posting.) The court rejected challenges by Sunrise to the settlement:
Sunrise urges that the Agreement will subject it to a “Hobson’s Choice” – That is, it will have to choose either to accept terms in new PCC agreements which it finds objectionable, or forego contracts with the Commonwealth which provide essential funding for its continued operation. As aptly stated by the Commonwealth defendants however, this is not a “Hobson’s Choice;” it is a business choice.... Sunrise does not suggest that the Commonwealth does not have the right to add to or alter the terms of its future PCC contract offerings, with or without this settlement.Americans United issued a press release announcing the court's action. AP reports on the decision.
District Court Grants Preliminary Injunction, Quoting Same-Day's SCOTUS Opinion In Hobby Lobby
In Archdiocese of St. Louis v. Burwell, (ED MO, June 30, 2014), a Missouri federal district court granted a preliminary injunction to Catholic non-profit organizations preventing enforcement of the contraceptive coverage mandate accommodation against them. The court rejected the government's argument that the religious-based organizations are not injured (and thus lack standing) because the government has no authority under ERISA to enforce against the third party administrator of a "church plan" the requirement that it furnish contraceptive coverage directly after the non-profit employer opts out. The court said:
Plaintiffs' injury is not related to whether the TPA can be penalized for noncompliance with the mandate. Rather, Plaintiffs' injury arises when the provision of contraceptive coverage has been facilitated by their actions and their beliefs have thereby been violated. This constitutes a sufficient injury to satisfy the constitutional minimum of standing.The court went on to conclude that the requirement for non-profits to execute a certification to opt out of the mandate imposes a substantial burden on their religious exercise. Then, incorporating language from the Supreme Court's Hobby Lobby opinion decided earlier the same day on which this court's opinion was filed, the court concluded that the government has shown it has a compelling interest, but it has not shown that it has used the least restrictive means to accomplish its goal. The court said in part:
Indeed, the Supreme Court has observed that the most straightforward way for the Government to achieve its goal without imposing a substantial burden on the exercise of religion would be to assume the cost of providing contraceptives to any women unable to obtain them under their health insurance policies due to their employers' religious objections. Burwell [v. Hobby Lobby Stores, Inc.], --S.Ct.--, 2014 WL 2921709.The Archdiocese of St. Louis issued a press release welcoming the decision.
5th Circuit: Defer To State Court Proceedings In Church Property Dispute
African Methodist Episcopal Church v. Lucien, (5th Cir., June 30, 2014), involves appeals in two related cases growing out of a property ownership dispute between the national AME Church and a local congregation, St. James Mission Church. St. James sued in a Louisiana state court seeking to evict several AME national church officers who had taken over the local church building. AME filed a counter suit in federal court seeking a declaration that the break-away members had given up any rights to the property through their dissociation. AME then removed the eviction action to federal court, claiming diversity of citizenship. However St. James claimed the removal was improper. The 5th Circuit agreed, finding the jurisdictional diversity of citizenship lacking. The Court ordered that the eviction proceeding be remanded to state court, and that the federal district court also abstain from deciding the counter-suit until the eviction proceeding is concluded in state court.
Court Invalidates Kentucky's Same-Sex Marriage Ban; Stays Order
In Love v. Beshear, (WD KY, July 1, 2014), a Kentucky federal district court held that Kentucky's statutory and constitutional provisions barring same-sex marriage violate the 14th Amendment's Equal Protection clause and are unenforceable. Judge Heyburn wrote in part:
in America even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted.
However, the court stayed its order until further order of the 6th Circuit Court of Appeals. The same court earlier this year held that Kentucky must recognize valid same-sex marriages performed elsewhere. (See prior posting.) Washington Post reports on yesterday's decision. [Thanks to Tom Rutledge for the lead.]
Tuesday, July 01, 2014
Supreme Court Grants Review In Church's Challenge To Sign Ordinance
The U.S. Supreme Court today granted certiorari in Reed v. Gilbert, AZ, (Docket No. 13-502, cert. granted 7/1/2014.) (Order List.) In the case, 9th Circuit Court of Appeals, in a 2-1 decision, upheld an Arizona town's sign ordinance that limits the size, number and time frame in which non-profit groups can display temporary directional signs. The limits on temporary event signs are stricter than limits placed on various other types of signs, having the effect of favoring political and ideological signs over religious ones. The ordinance was challenged by a church that placed 17 signs in the area around its place of worship announcing the time and location of its services. (See prior posting.) Here is the petition for certiorari. An ADF press release has more background.
Supreme Court Cleans Up Docket After Hobby Lobby Decision
Today the U.S. Supreme Court did a clean-up of pending Affordable Care Act contraceptive mandate cases brought by for-profit companies now that the Court has handed down its decision in Hobby Lobby. The Court denied certiorari in cases: Department of Health and Human Services v. Gilardi, (Docket No. 13-915); Burwell v. Newland (Docket No. 13-919); and Burwell v. Korte (Docket No. 13-937). In three other pending petitions for review the Supreme Court granted certiorari and summarily vacated the Court of Appeals decisions, remanding each case to the Court of Appeals for further consideration in light of Hobby Lobby. The cases are: Autocam Corp. v. Burwell, (Docket No. 13-482); Gilardi v. Department of Health and Human Services, (Docket No. 13-567); Eden Foods, Inc. v. Burwell, (Docket No. 13-591). All of these actions are noted in today's Order List.)
Israel's Supreme Court Says Rabbinical Courts Lack Jurisdiction To Order Circumcision of Child
Israel's High Court of Justice on Sunday held 6-1 that a rabbinical court did not have jurisdiction in the context of a divorce action to order a couple to circumcise their one-year old son over the mother's objection. (See prior posting.) Jerusalem Post reports that Deputy Supreme Court President Miriam Naor wrote in her majority opinion that the question of circumcision is unrelated to divorce issues that define the rabbinical courts' jurisdiction. She said that parents have the right to make decisions in their child’s best interests whether they are married or divorced. The Court held that the question should be decided by the civil family court system. Chief Rabbi Yitzhak Yosef, president of the Supreme Rabbinical Court of Appeal, strongly criticized the High Court's decision, saying in part:
This ruling is another severe step in which Jewish judges forbid the fulfillment of a mitzva for which the Jewish people sacrificed its lives for throughout the generations.
European Court Upholds France's Ban Wearing Burqa In Public
The European Court of Human Rights today, in a Grand Chamber judgment, upheld France's ban on Muslim women wearing the full-face veil in public. In S.A.S. v. France, (ECHR, July 1, 2014), the court by a vote of 15-2 held that France's law prohibiting the concealment of one’s face in public places (and thus barring the burqa and niqab) does not violate either Art. 8 (respect for private and family life) or Art. 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights. The Court unanimously held that the law does not violate Art. 14 (discrimination). The Court concluded that the ban can be justified as a means of guaranteeing the conditions of "living together." The Court said in part:
[W]hile it is true that the scope of the ban is broad, because all places accessible to the public are concerned (except for places of worship), the Law of 11 October 2010 does not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which does not have the effect of concealing the face. The Court is aware of the fact that the impugned ban mainly affects Muslim women who wish to wear the full-face veil. It nevertheless finds it to be of some significance that the ban is not expressly based on the religious connotation of the clothing in question but solely on the fact that it conceals the face.....
... [T]he respondent State is seeking to protect a principle of interaction between individuals, which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society .... In such circumstances, the Court has a duty to exercise a degree of restraint in its review of Convention compliance, since such review will lead it to assess a balance that has been struck by means of a democratic process within the society in question.The Court also issued a press release summarizing the decision. CNN reports on the decision. [Thanks to Paul de Mello for the lead.]
10th and 11th Circuits Grant Injunction Pending Appeal To Religious Non-Profits Challenging ACA Rules
Yesterday two circuit courts of appeal granted stays pending appeal in suits by religious non-profits challenging the Affordable Care Act contraceptive coverage accommodation. In Diocese of Cheyenne v. Burwell, (10th Cir., June 30, 2014), the 10th Circuit Court of Appeals held that it would enjoin enforcement of the accommodation against several Wyoming Catholic charitable and educational institutions so long as they inform the Secretary of Health and Human Services in writing (but not necessarily using the government's form) that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services.
In Eternal World Television Network, Inc. v. Secretary, U.S. Department of Health and Human Services, (11th Cir., June 30, 2014), the U.S. 11th Circuit Court of Appeals granted an injunction pending appeal to a religious non-profit broadcasting network challenging the contraceptive mandate accommodation rules. Judge Pryor wrote a 26-page special concurrence explaining why EWTN is likely to succeed on the merits. Both the court's order and Judge Pryor's opinion cited yesterday's Supreme Court decision in Hobby Lobby for support. [Thanks to Stephen Blakeman for the lead.]
In Eternal World Television Network, Inc. v. Secretary, U.S. Department of Health and Human Services, (11th Cir., June 30, 2014), the U.S. 11th Circuit Court of Appeals granted an injunction pending appeal to a religious non-profit broadcasting network challenging the contraceptive mandate accommodation rules. Judge Pryor wrote a 26-page special concurrence explaining why EWTN is likely to succeed on the merits. Both the court's order and Judge Pryor's opinion cited yesterday's Supreme Court decision in Hobby Lobby for support. [Thanks to Stephen Blakeman for the lead.]
White House Reacts To Hobby Lobby Decision
At a press briefing yesterday (transcript), White House Press Secretary Josh Earnest set out president Obama's reaction to the Supreme Court's Hobby Lobby decision, saying in part:
The Supreme Court ruled today that some bosses can now withhold contraceptive care from their employees’ health coverage based on their own religious views that their employees may not even share. President Obama believes that women should make personal health care decisions for themselves rather than their bosses deciding for them.
Today’s decision jeopardizes the health of women who are employed by these companies. As millions of women know firsthand, contraception is often vital to their health and well being. That’s why the Affordable Care Act ensures that women have coverage for contraceptive care, along with other preventative care like vaccines and cancer screenings.
We will work with Congress to make sure that any women affected by this decision will still have the same coverage of vital health services as everyone else.
President Obama believes strongly in the freedom of religion. That’s why we’ve taken steps to ensure that no religious institution will have to pay or provide for contraceptive coverage. We’ve also made accommodations for non-profit religious organizations that object to contraception on religious grounds. But we believe that the owners of for-profit companies should not be allowed to assert their personal religious views to deny their employees federally mandated benefits.
Monday, June 30, 2014
Some Preliminary Thoughts On Today's Hobby Lobby Decision
The Supreme Court's Hobby Lobby opinions handed down today could (and not doubt will) spawn hundreds of pages of scrutiny and analysis. In this post I offer only some very preliminary reactions, but ones which I hope will be useful starting points for others in analyzing the decisions at greater length.
(1) One of the most widely discussed questions raised by Hobby Lobby has been: Can corporations exercise religion? Justice Alito avoids many of the difficulties posed by this question through adopting the "nexus of contracts" view of corporations put forward by "law and economics" scholars during the past 40 years. He says:
(2) Much attention has been focused on whether the government can show a "compelling interest" in imposing the contraceptive coverage mandate. Again Justice Alito is able to avoid dealing directly with the issue. By focusing instead on the "least restrictive means" prong of RFRA strict scrutiny, he is able merely to "assume" that the government has a compelling interest, without deciding the issue.
(3) Justice Alito's "least restrictive means" discussion creates some of the most important surprises, and may lead those who supported Hobby Lobby's position to recall the adage: "be careful what you wish for." Jutice Alito makes two points. First, he argues that the "most straightforward" less restrictive alternative would be for the government to assume the cost of furnishing contraceptive coverage. The logical extension of this argument seems to be that if numerous other religious objections to providing employer coverage arise, the best alternative may be a single-payer government-run system.
Second, Justice Alito heaps praise on the less restrictive alternative that the government has already developed for religious non-profits, and suggests that this may be the most feasible alternative here as well. However, as Justice Alito briefly references in a footnote, an equally fierce battle against just that alternative is working its way through dozens of lower federal courts. Seldom has the Supreme Court so tipped its hand on its views about cases about to come to it. Dozens of religious non-profits are arguing that opting out of furnishing contraceptive coverage, and thereby triggering coverage from elsewhere, still amounts to religiously objectionable participation. For-profit corporations with religious beliefs seemingly have the same free-exercise concerns. The majority must think those concerns are not justified.
(1) One of the most widely discussed questions raised by Hobby Lobby has been: Can corporations exercise religion? Justice Alito avoids many of the difficulties posed by this question through adopting the "nexus of contracts" view of corporations put forward by "law and economics" scholars during the past 40 years. He says:
A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.... [P]rotecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.This approach avoids both the question of whether an "artificial person" can exercise religion, and whether traditional "piercing-the-corporate-veil" notions need to be invoked.
(2) Much attention has been focused on whether the government can show a "compelling interest" in imposing the contraceptive coverage mandate. Again Justice Alito is able to avoid dealing directly with the issue. By focusing instead on the "least restrictive means" prong of RFRA strict scrutiny, he is able merely to "assume" that the government has a compelling interest, without deciding the issue.
(3) Justice Alito's "least restrictive means" discussion creates some of the most important surprises, and may lead those who supported Hobby Lobby's position to recall the adage: "be careful what you wish for." Jutice Alito makes two points. First, he argues that the "most straightforward" less restrictive alternative would be for the government to assume the cost of furnishing contraceptive coverage. The logical extension of this argument seems to be that if numerous other religious objections to providing employer coverage arise, the best alternative may be a single-payer government-run system.
Second, Justice Alito heaps praise on the less restrictive alternative that the government has already developed for religious non-profits, and suggests that this may be the most feasible alternative here as well. However, as Justice Alito briefly references in a footnote, an equally fierce battle against just that alternative is working its way through dozens of lower federal courts. Seldom has the Supreme Court so tipped its hand on its views about cases about to come to it. Dozens of religious non-profits are arguing that opting out of furnishing contraceptive coverage, and thereby triggering coverage from elsewhere, still amounts to religiously objectionable participation. For-profit corporations with religious beliefs seemingly have the same free-exercise concerns. The majority must think those concerns are not justified.
Supreme Court Denies Cert. In Reparative Therapy and Mt. Soledad Cross Cases
Nearly lost in the coverage of today's Hobby Lobby decision were two important denials of certiorari by the Supreme Court. (Order List of June 30, 2014). The court denied review in Pickup v. Brown (Docket No. 13-949) and the related case of Welch v. Brown (Docket No. 13-1281). The 9th Circuit's consolidated decision in the two cases upheld the constitutionality of California Senate Bill 1172 that bans state-licensed mental health providers from engaging in sexual orientation change efforts with patients under 18. (See prior posting.)
Additionally, the Court denied certiorari in Mount Soledad Memorial Association v. Trunk, (Docket No. 13-1061). In seeking cert., petitioners were attempting to bypass the 9th Circuit and obtain Supreme Court review of a long-running battle over a 43-foot high cross in the now federally-owned Mt. Soledad Veterans Memorial in California. (See prior posting.) Justice Alito filed a separate statement [scroll to end of Order List] concurring in the denial of review, but mainly because of the very demanding standard to obtain Supreme Court review before the Court of Appeals acts.
Additionally, the Court denied certiorari in Mount Soledad Memorial Association v. Trunk, (Docket No. 13-1061). In seeking cert., petitioners were attempting to bypass the 9th Circuit and obtain Supreme Court review of a long-running battle over a 43-foot high cross in the now federally-owned Mt. Soledad Veterans Memorial in California. (See prior posting.) Justice Alito filed a separate statement [scroll to end of Order List] concurring in the denial of review, but mainly because of the very demanding standard to obtain Supreme Court review before the Court of Appeals acts.
Supreme Court Rules RFRA Allows Closely-Held Corporations To Refuse Contraceptive Coverage
In Burwell v. Hobby Lobby Stores, Inc., (S.Ct., June 30, 2014), the U.S. Supreme Court today ruled in favor of Hobby Lobby and other closely held corporations whose owners object on religious grounds to providing coverage for contraceptive services. In a majority opinion by Justice Alito, the court held that the Religious Freedom Restoration Act applies to closely-held corporations, and that the government has not shown that the mandate is the least restrictive means of furthering its presumably compelling interest in guraranteeing cost-free access to the four contraceptive methods to which the companies object. Justice Alito said in part:
Justice Kennedy filed a concurring opinion as well as joining Justice Alito's majority opinion. Justices Ginsburg, Breyer, Sotomayor and Kagan dissented in two related dissenting opinions.
Justice Ginsburg's dissenting opinion calls the majority's decision one of "startling breadth." She adds in a section of her dissent joined only by Justice Sotomayor: "Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private."
Additional analysis of the decision will follow in separate posts.
In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.
Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.Justice Alito argues that the majority opinion is narrow:
We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”He says that if the same accommodation given to religious non-profits were extended to closely-held corporations, the effect on women "would be precisely zero."
Justice Kennedy filed a concurring opinion as well as joining Justice Alito's majority opinion. Justices Ginsburg, Breyer, Sotomayor and Kagan dissented in two related dissenting opinions.
Justice Ginsburg's dissenting opinion calls the majority's decision one of "startling breadth." She adds in a section of her dissent joined only by Justice Sotomayor: "Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private."
Additional analysis of the decision will follow in separate posts.
Supreme Court Grants Cert. On Whether EEOC's Conciliation Efforts Can Be Reviewed
The U.S. Supreme Court today granted certiorari in Mach Mining, LLC v. E.E.O.C. (Docket No. 13-1019, cert. granted 6/30/2014) (Order List.) The case is one involving alleged gender discrimination-- refusal to hire a woman as a coal miner. The issue presented, however, will impact religious discrimination claims filed with the EEOC as well. In the case, the 7th Circuit (full opinion) held that an employer sued by the EEOC for employment discrimination cannot raise as an affirmative defense the EEOC's failure to first engage in conciliation as required by 42 U.S.C. § 2000e-5(b). The Petition for Certiorari (full text) asserts that the 7th Circuit's decision exacerbated an already exiting conflict among circuits "over whether and how Title VII’s conciliation obligation may be enforced in court."
Recent Articles of Interest
From SSRN:
- Zvi H. Triger, Golda Meir's Reluctant Feminism: The Pre-State Years, (Israel Studies, 19.3 (Fall 2014), Forthcoming).
- Frederick Mark Gedicks & Andrew Koppelman, Invisible Women: Why an Exemption for Hobby Lobby Would Violate the Establishment Clause, (67 Vanderbilt Law Review En Banc 51 (2014)).
- Raphael Cohen-Almagor, Reconciling Liberalism and Judaism? Human Rights in Israel, (in Jo Carby-Hall (ed.), Essays on Human Rights: A Celebration of the Life of Dr Janusz Kochanowski (Warsaw: Jus et Lex Foundation, 2014), pp. 136-163).
- Robin Fretwell Wilson, Marriage of Necessity: Same-Sex Marriage and Religious Liberty Protections, (Illinois Program in Law, Behavior and Social Science Paper No. LBSS14-35 (June 2014)).
- David Pimentel & Brian Anderson, Judicial Independence In Postconflict Iraq: Establishing the Rule of Law In an Islamic Constitutional Democracy, 46 George Washington International Law Review 29-54 (2013).
- Sadiq Reza, Due Process In Islamic Criminal Law, 46 George Washington International Law Review 1-27 (2013).
EEOC Wins Settlement In Religious Discrimination Suit Against Auto Dealership
The U.S. Equal Employment Opportunity Commission announced last week that a federal district court in Chicago has entered a consent decree in a suit brought by the EEOC against a suburban Chicago auto dealership, Rizza Buick GMC Cadillac, Inc. The suit charged that managers made offensive ethnic and religious slurs against three Arab Muslim employees, including mocking and insulting references to the Qur'an and the manner in which Muslims pray. Under the settlement, the dealership will pay a total of $100,000 in damages plus undertaking reporting and employee training to prevent future violations. [Thanks to Steven H. Sholk for the lead.]
Supreme Court Will Decide Much-Watched Hobby Lobby Case Today
This morning the U.S. Supreme Court will hand down the much-awaited decisions in Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Burwell. These challenges to the Affordable Care Act contraceptive coverage mandate raise a number of difficult and interesting religious liberty questions. Here are SCOTUS Blog's resource pages on Hobby Lobby and Conestoga. Also SCOTUS Blog will be live blogging from the courtroom here. The opinions in the cases will be posted here by the Supreme Court as soon as they are announced. Religion Clause will be reporting on the decisions and their implications, probably with a rolling post or with several posts during the day and beyond.
Sunday, June 29, 2014
ISIS Declares Caliphate In Parts of Syria and Iraq
As reported by Time, the Sunni group ISIS (Islamic State of Iraq and Syria) today declared a new Caliphate on the territory it holds in Syria and Iraq. Its statement (full text) declared ISIS leader Abu Baker al-Baghdadi to be the Caliph, and changed ISIS' name to merely Islamic State. The lengthy statement included this explanation:
The time has come for those generations that were drowning in oceans of disgrace, being nursed on the milk of humiliation, and being ruled by the vilest of all people, after their long slumber in the darkness of neglect – the time has come for them to rise. The time has come for the ummah of Muhammad (peace be upon him) to wake up from its sleep, remove the garments of dishonor, and shake off the dust of humiliation and disgrace, for the era of lamenting and moaning has gone, and the dawn of honor has emerged anew. The sun of jihad has risen. The glad tidings of good are shining. Triumph looms on the horizon. The signs of victory have appeared.
Recent Prisoner Free Exercise Cases
In Kaufman v. Pugh, 2014 U.S. Dist. LEXIS 84532 (WD WI, June 20, 2014), a Wisconsin federal district court dismissed a complaint by a now-released prisoner that authorities refused to authorize an atheist study group. Injuntive relief was dismissed as moot, and a damage claim dismissed on qualified immunity grounds.
In Staple v. Commonwealth, 2014 Pa. Commw. Unpub. LEXIS 388 (PA Commnw. Ct., June 26, 2014), the Pennsylvania Commonwealth Court denied both a writ of mandamus and a declaratory judgment to an inmate seeking return of several religious books that were confiscated because he had altered him.
In Neal-El v. Beitzel, 2014 U.S. Dist. LEXIS 84943 (D MD, June 23, 2014), a Maryland federal district court dismissed an inmate's complaint that for one week he was removed from the list of those permitted to attend Moorish Science Temple services while officials investigated an unfounded report that he was involved in activities jeopardizing security.
In Marron v. Miller, 2014 U.S. Dist. LEXIS 86629 (WD VA, June 24, 2014), a Virginia federal district court dismissed a Muslim inmate's complaint that his religious books were confiscated as contraband because they were inscribed with his religious name rather than the name recognized by the prison system.
In Staple v. Commonwealth, 2014 Pa. Commw. Unpub. LEXIS 388 (PA Commnw. Ct., June 26, 2014), the Pennsylvania Commonwealth Court denied both a writ of mandamus and a declaratory judgment to an inmate seeking return of several religious books that were confiscated because he had altered him.
In Neal-El v. Beitzel, 2014 U.S. Dist. LEXIS 84943 (D MD, June 23, 2014), a Maryland federal district court dismissed an inmate's complaint that for one week he was removed from the list of those permitted to attend Moorish Science Temple services while officials investigated an unfounded report that he was involved in activities jeopardizing security.
In Marron v. Miller, 2014 U.S. Dist. LEXIS 86629 (WD VA, June 24, 2014), a Virginia federal district court dismissed a Muslim inmate's complaint that his religious books were confiscated as contraband because they were inscribed with his religious name rather than the name recognized by the prison system.
District Court Denies Injunction Against ACA Non-Profit Rules; 3rd Circuit Issues Temporary Stay
In Catholic Charities of the Archdiocese of Philadelphia v. Burwell, (ED PA, June 27, 2014), a Pennsylvania federal district court denied a preliminary injunction to several Catholic charitable organizations that object to the Affordable Care Act rules providing for execution of an opt-out form in order to avoid the requirement to cover contraceptive services under their self-insured health care plan. (Full text of complaint.) After a non-profit opts out, ERISA requires the third party administrator to directly cover contraceptive services. The court concluded that plaintiffs had not shown a likelihood of success on the merits because the government may not be able to enforce the ERISA requirement against the "church plan" at issue. Even if that is not the case, the court found that the self-certification form is not what triggers the furnishing of contraceptive services by the third-party administrator.
Plaintiffs quickly filed a motion for a stay pending appeal, and the 3rd Circuit issued an order (full text) temporarily granting the stay, but requiring the parties to file responses addressing the impact of the Supreme Court's Hobby Lobby and Conestoga decisions (to be handed down Monday) on the issues presented. The Philadelphia Inquirer reports on the decision.
Plaintiffs quickly filed a motion for a stay pending appeal, and the 3rd Circuit issued an order (full text) temporarily granting the stay, but requiring the parties to file responses addressing the impact of the Supreme Court's Hobby Lobby and Conestoga decisions (to be handed down Monday) on the issues presented. The Philadelphia Inquirer reports on the decision.
Puerto Rico Appeals Court Applies Ministerial Exception Doctrine
In Vega v. Barbara Ann Roessler Church, Inc., 2014 PR App LEXIS 1954 (PR Ct. App., May 30, 2014), the Puerto Rico Court of Appeals in a 2-1 decision applied the "ministerial exception" doctrine to dismiss a claim by a minister that he was unfairly dismissed as pastor of his church. The opinion is in Spanish.
Plaintiff Lacks Standing In Establishment Clause Challenge To ACA Individual Mandate
In Cutler v. United States, (D DC, June 25, 2014), the District of Columbia federal district court dismissed a challenge to the Affordable Care Act's individual mandate. Plaintiff based his challenge primarily on a claim that the narrow religious exemption in 26 USC Sec. 5000A(d)(2) violates the Establishment Clause by allowing the government to "regulate and track a person’s religion, and . . . to favor one religion over another." The court concluded that plaintiff lacks standing to raise this claim:
Plaintiff is non-observant in his religion and does not assert that a religious exemption should be extended to him.... Plaintiff’s argument is as follows: there is an exemption to the individual mandate for certain religious groups, he is not a member of any of those groups, and, therefore, he is not able to claim that exemption. It follows that Plaintiff’s challenge to the religious exemption solely is based on the general existence of the exemption and not on the exemption’s specific application to him...
... Further, even if the Court were to find that religious exemption violated the exercise of Congress’ Commerce Power in violation of the First Amendment, Plaintiff would be in the same position. He would be subject to the individual mandate and would be required to either obtain health insurance coverage or pay the penalty. The only difference would be that no one else could claim a religious exemption.The court went on to conclude that even if plaintiff had standing, the religious exemption provisions do not violate the Establishment Clause.
Former Vatican Diplomat Defrocked On Sex Abuse Charges; Criminal Trial Will Follow
Vatican Information Service reported on Friday:
The first stage in the canonical trial against the former apostolic nuncio in the Dominican Republic, Josef Wesolowski, has been concluded with the laicisation of the prelate.According to Al Jazeera, in August the Vatican recalled Wesolowski from his position in the Dominican Republic after rumors that he had sexually abused teenage boys there. Dominican authorities were unable to charge him because he had diplomatic immunity. Weslowski has two months to appeal Friday's decision by the Congregation of the Doctrine of the Faith. After that, he will face criminal charges in a Vatican City State Tribunal. In the meantime, the Vatican says that it will limit his freedom of movement "in conformity with the gravity of the case."
Saturday, June 28, 2014
7th Circuit Stays District Court's Invalidation of Indiana's Same-Sex Marriage Ban
In Baskin v. Bogan, (7th Cir., June 27, 2014), the U.S. 7th Circuit Court of Appeals issued a stay pending appeal of a federal district court' decision striking down Indiana's laws barring same-sex marriage. (See prior posting.) Fox59 reports on the appellate court's action and reactions to it.
White House Sends Greetings As Ramadan Begins
Ramadan begins tonight. The White House released a statement (full text) from the President extending greetings from the American people to Muslims communities in the U.S. and around the world. The statement reads in part:
... Ramadan is also an occasion when Muslims around the world reaffirm their commitment to helping the less fortunate.... Here in the United States, we are grateful to the many Muslim American organizations, individuals, and businesses that are devoted to creating opportunity for all by working to reduce income inequality and poverty, not only through their charitable efforts, but also through their initiatives to empower students, workers and families with the education, skills and health care they deserve.President Obama went on to announce that again this year the White House will host an iftar dinner during Ramadan.
Christian Teacher Loses Suit Challenging Required Removal of Religious Postings In Classroom
In Silver v. Cheektowage Central School District, (WD NY, June 24, 2014), a New York federal magistrate judge recommended dismissing most of the discrimination claims brought by a Christian high school science teacher who was required to take down from her classroom her display of several Bible verses, other statements about God and a picture of three crosses on a hill. She was also told to prevent guest speakers from promoting religion. The court rejected teacher Joelle Silver's Establishment Clause and free speech claims and most of her equal protection claims, saying that the school has authority to take action to avoid litigation claiming Establishment Clause violations. The court also characterized as "inapposite" the teacher's comparison of her displays to those by the school social worker that were designed to create a welcoming environment for LGBT students. The court however recommended permitting plaintiff to proceed with a claim that school policies relating to her role as advisor to the student Bible Study Club were selectively enforced. News 4 reports on the decision. American Freedom Law Center issued a press release announcing the decision.
Friday, June 27, 2014
Turkey's Constitutional Court Says Female Lawyers Can Wear Headscarves In Courtrooms
On Wednesday, Turkey's Constitutional Court ruled 16-1 that the rights of a Muslim female lawyer had been infringed when she was not permitted to enter a courtroom wearing a headscarf. According to Daily Sabah, the Council of State, the country's highest administrative court, ruled in 2013 that women lawyers had the right to register at the Bar Association with a photo showing them wearing a headscarf. However some judges were still banning headscarves in their courtrooms. The Constitutional Court said this week that such bans violate Art. 10 (equality before the law) and Art. 24 (freedom of religion and conscience) of Turkey's Constitution.
Council Revokes Invitation To Wiccan To Deliver Invocation
WHNT News reports that the Huntsville, Alabama City Council pulled back the invitation it originally extended to a Wiccan clergyman to deliver the invocation at yesterday's City Council meeting. Wiccan Blake Kirk had been scheduled to deliver the opening prayer, but when the Council agenda was publicly released several Council members received "community concerns" about a Wiccan being invited. Kirk said he gave the invocation earlier this year and no one asked him to identify his faith.
European Court Holds Russia Violated Rights of Jehovah's Witnesses
In Krupko v. Russia, (ECHR, June 26, 2014), the European Court of Human Rights in a Chamber Judgment held that Russia violated the European Convention on Human Rights Art. 5 (right to liberty and security) and Art. 9 (freedom of thought, conscience and religion) when in 2006 police disrupted a Jehovah's Witness religious meeting and arrested some of the participants. The court awarded 36,000 Euros as damages and costs. The court issued a press release on the case. RAPSI reports on the decision.
Christian College Denied Relief Against Contraceptive Coverage Mandate Accommodation
In Wheaton College v. Burwell, (ND IL, June 23, 2014), an Illinois federal district court refused to grant a preliminary injunction to a Christian liberal arts college that objects to complying with the Affordable Care Act contraceptive coverage mandate accommodation for religious non-profits. It concluded that the 7th Circuit's decision in University of Notre Dame v. Sebelius (see prior posting) is controlling on it:
Because the majority opinion in Notre Dame stands squarely in the path of the principal relief that Plaintiff seeks, Plaintiff cannot demonstrate the requisite likelihood of success on the merits of its claims.The court added however that if the Supreme Court's upcoming decision in Hobby Lobby calls into question any material aspect of the Notre Dame decision, any party may file a motion for reconsideration.
Thursday, June 26, 2014
Supreme Court Strikes Down Massachusetts Abortion-Clinic Buffer Zone Law
The U.S. Supreme Court today in McCullen v. Coakley, (S.Ct., June 26, 2014) struck down the Massachusetts statute that creates a 35-foot buffer zone around abortion clinics. The law prevents anti-abortion sidewalk counselors from entering the buffer zone. The Court's majority decision written by Chief Justice Roberts struck down the law on narrow free speech grounds. While the state has a legitimate interest in preserving access to clinics, and while this is a neutral statute, it burdens more speech that in necessary to accomplish that purpose. The Chief Justice explains:
Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks—sites that have hosted discussions about the issues of the day throughout history. Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.
Justice Scalia's opinion, joined by Justices Kennedy and Thomas, concurring only in the judgment, criticizes the majority's approach:
Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents. There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.... The ... Court’s analysis today, invalidating the law at issue because of inadequate “tailoring,” is certainly attractive to those of us who oppose an abortion speech edition of the First Amendment. But think again. This is an opinion that ... continues the onward march of abortion-speech-only jurisprudence.Justice Alito also wrote a separate opinion concurring only in the judgment. The New York Times reports on the decision.
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