CA High Court: Doctors Cannot Assert Free Exercise In Refusing IUI Treatment For Lesbian

Today in North Coast Women's Care Medical Group, Inc. v. San Diego County Superior Court, (CA Sup. Ct., Aug. 18, 2008), the California Supreme Court held unanimously that a medical clinic's physicians are prohibited by the Unruh Civil Rights Act from discriminating against patients on the basis of sexual orientation. They may not rely on the free exercise provisions of the U.S. or California constitutions to assert an exemption from that prohibition.

In the case, two clinic physicians refused, on religious grounds, to perform intrauterine insemination for Guadalupe Benitez, an unmarried lesbian patient. The court held that under the 1st Amendment, no religious exemption is mandated because the Unruh Civil Rights Act is a neutral law of general application. The court said it need not decide whether the California constitution imposes greater protection for religious beliefs, because even under a strict scrutiny standard defendants' assertion fails. Since the Unruh Civil Rights Act requires merely "full and equal" access, the physicians could either refuse to perform the procedure for any clinical patients, or refer patients to other physicians employed by the clinic who do not have the same religious objections. The court said that defendants are still free at trial to prove that their religious objections related to the fact that Benitez was unmarried, rather than the fact she was a lesbian.

Justice Baxter concurred, but argued that the balance of competing interests might come out differently in the case of a physician in sole practice. He said: "At least where the patient could be referred with relative ease and convenience to another practice, I question whether the state’s interest in full and equal medical treatment would compel a physician in sole practice to provide a treatment to which he or she has sincere religious objections." The San Diego Union Tribune reports on the decision. (See prior related posting.)

US Group Refuses To Leave Chinese Airport After Bibles Seized

Chinese law prohibits bringing printed religious material into the country except for personal use. CNN today reports that four members of the Sheridan, Wyoming based Christian group, Vision Beyond Borders, are refusing to leave the Kunming Airport after customs officials seized 300 Bibles that they had in their luggage that were to be distributed through a Kunming shop owner. The group's director, Pat Klein, said he has been bringing Bibles into China for 21 years, and did not know he was violating Chinese law. He says they will stay at the airport until their Bibles are returned to them.

UPDATE: Unable to get the Chinese to relent, members of Vision Beyond Borders left the Kunming Airport on Monday after 26 hours. (AP).

UPDATE: When members of Vision Beyond Borders returned to the Kunming airport to leave China on Wednesday for Thailand, their 315 Bibles were returned to them and they were escorted to immigration. (China Post, Aug. 20).

Recent Scholarly Articles and Book of Interest

From SSRN:

• Christopher C. Lund, The Congressional Chaplaincies (August 14, 2008).
• Benjamin M Leff, Sit Down and Count the Cost: A Framework for Constitutionally Enforcing the 501(C)(3) Campaign Intervention Ban, (August 12, 2008).

From SmartCILP:

• Conversation in Aid of a "Conspiracy" for Truth: A Candid Discussion About Jesuit Law Schools, Justice, and Engaging the Catholic Intellectual Tradition. Article by Gregory A. Kalscheur; responses by C. Michael Bryce, Thomas More Donnelly and student Spencer K. Nussbaum; reply by John M. Breen. 43 Gonzaga Law Review 559-669 (2007/08).
• Financial Innovations in the Muslim World. Articles by Bjorn Sorenson, Ali Adnan Ibrahim, Umar F. Moghul, Bashar H. Malkawi and Haitham A. Haloush. 23 American University International Law Review 647-805 (2008).
• Vols. 6 (2006-07 and Vol. 7 (2007-08)of the UCLA Journal of Near Eastern and Islamic Law [contents] have recently been published.

New Book:

• Religion & Law in America: An Encyclopedic Dictionary, (Grey House Publishing, Oct. 2008).

Paper Says 1953 Raid Was Precursor To FLDS Operation

Saturday's Arizona Republic carries a lengthy history of the raid 55 years ago on a polygamous community in Short Creek Arizona. The article suggests that the recent Texas raid on the FLDS Yearning for Zion Ranch has many parallels to the 1953 Arizona raid. The Arizona raid ultimately reinforced the convictions of members of the polygamous community.

Recent Prisoner Free Excercise Cases

In Massi v. Hollenbach, 2008 U.S. Dist. LEXIS 60463 (MD PA, Aug. 1, 2008), a Pennsylvania federal district court judge accepted a magistrate's recommendation and rejected a prisoner's challenge to regulations requiring that prisoners obtain religious publications from a publisher, book club, or book store unless it is shown that a publication is no longer available from such a source.

In Logan v. Arkansas Department of Corrections, 2008 U.S. Dist. LEXIS 61809 (ED AR, July 28, 2008), an Arkansas federal magistrate judge recommended dismissal of a challenge by a Wiccan prisoner to Arkansas hair length requirements for prisoners.

In Rankins v. Smith, 2008 U.S. Dist. LEXIS 61411, (ED NC, Aug. 7, 2008), a North Carolina federal district court dismissed for failure to exhaust administrative remedies a prisoner's claim that a prison officer retaliated against him for filing a complaint about medical treatment by failing to put his name on the Ramadan list and not allowing him to receive foods from the Eid-ul-Fitr feast.

Pugh v. Goord, 2008 U.S. Dist. LEXIS 60998 (SD NY, Aug. 1, 2008), is a lengthy opinion involving challenges by Shi'te Muslim inmates to New York's policy that provides for a single Friday Jumah service for both Sunni and Shi'ite Muslims, instead of allowing a separate Shi'ite service. Shi'ite prisoners also allege other anti-Shi'ite elements in the prison's program to accommodate their religious needs, making it, they say, a Sunni, not a generic Muslim, program. While rejecting damage claims, the court permitted some of the plaintiffs to move ahead with injunctive claims under the free exercise clause, establishment clause, equal protection clause and RLUIPA.

Scotland Agrees With Catholic Church On Content of Health Leaflets In Schools

Scotland on Sunday reports today that Scottish government officials will shortly begin a program to offer all school girls age 12 and 13 vaccination against cervical cancer caused by certain strains of HPV. However, against the advice of many health experts, the leaflet that will be distributed to those receiving the inoculation will not contain information on the use of condoms to prevent other sexually transmitted diseases. The decision was made in order to obtain support from the Catholic Church for offering the vaccinations in Catholic schools. The Church had originally objected to the vaccination program on the ground that it would encourage promiscuity. [Thanks to Edward Still for the lead.]

Study Lists Countries That Bar Foreign Religious Workers

WorldNet Daily reported Friday that a study from a researcher at the Library of Congress shows that 23 countries around the world deny entry to foreign religious workers, while an additional 16 allow entry only with restrictions. Almost all the countries on the "total ban" list are countries with majority Muslim populations.

TN High Court Says Cult Leader May Be In Loco Parentis Under Child Neglect Law

In State of Tennessee v. Sherman, (TN Sup. Ct., Aug. 15, 2008), the Tennessee Supreme Court refused to dismiss charges under Tennessee's child neglect statute against a religious cult leader in the death of Jessica Crank, a teenage girl whose mother opted for prayer instead of medical treatment for her daughter's bone cancer. Ariel Ben Sherman, a minister in the Universal Life Church, was not married to the girl's mother nor had he adopted the girl. However the mother and daughter lived with him, as did several of his other followers. Prosecutors claimed that Sherman had an in loco parentis duty to seek treatment for Jessica. The court held: "The Defendant's relationship with the mother may be circumstantial evidence of duty, but the ultimate question is the nature and degree of the Defendant’s relationship with Jessica. In theory, the State might be able to establish that the Defendant failed to perform a statutory duty to provide adequate medical care for the child." Yesterday's Knoxville News-Sentinel reported on the decision. (See prior related posting.)

County Fair Widens God and Country Day Discount

After complaints by an atheist group (see prior posting) about the "God and Country" day promotion planned by the Wilson County, Tennessee fair, promoters have responded. Instead of giving a $2 admission discount only to individuals who present a church bulletin at the gate, now the discount will be available to anyone presenting a bulletin from any faith's religious services, or anyone presenting a web page printout from any religious or secular group. Friday's Tennessean reported that Cheryl Lewis, member of the Wilson County Promotions Board, said that God and Country day was not discriminatory, and was begun in 2002 as a response to the 9-11 attacks. [Thanks to Scott Mange for the lead.]

Pastor Sues Parent Group and Paper For Defamation

The Dallas Morning News and the Associated Baptist Press report on a defamation lawsuit filed against the Baptist General Convention of Texas, the Baptist Standard and several other defendants by Rev. Otto Arango. The charges grow out of an investigation by the BGCT of Arango's claims that he and two other pastors started 258 new churches. The investigation questioned the use by Arango of some of the $1.3 million in start-up funds for these churches, many of which failed. The lawsuit says that statements published in the Standard were false and malicious, wrongly suggesting that he had improperly used church funds and lied about the number of churches he started.

Obama, McCain Quizzed on Faith and Values Issues

On Saturday evening, Pastor Rick Warren held his Saddleback Forum at which he interviewed both Barack Obama and John McCain on issues of concern to faith and values voters. Warren posed the same questions to each of the candidates-- giving each one hour on national television time. CNN and ABC, among others, report on the forum. Among a wide range of questions, Warren asked each candidate about his own personal Christian faith. (See prior related posting.)

Meanwhile a letter to Barack Obama, initiated by Rabbi Michael Lerner and signed by 140 members of the clergy, urges Obama not to move to the political center. The full text of the letter, included in a Los Angeles Times article today, reads in part: "We are writing you ... not as your election strategists, but as people of faith whose primary allegiance is to be prophetic witnesses to the ethical vision articulated in the holy texts of our religion and the elaboration of those religious traditions over the course of the past two thousand years."

UPDATE: The full transcript of the Saddleback Forum is now available online.

5th Circuit Upholds Death Sentence Despite Jury's Use of Bible

In Oliver v. Quarterman, (5th Cir., Aug. 14, 2008), the U.S. 5th Circuit Court of Appeals rejected convicted murderer Khristian Oliver's challenge to his death sentence. The court summarized the challenge and its holding as follows:

Oliver argues that the jury violated his rights under the Sixth and Eighth Amendments by considering passages from the Bible during the sentencing phase of its deliberations. Although the jury improperly consulted the Bible, the state court found that the Bible did not influence the jury’s decision. As Oliver has not presented clear and convincing evidence to rebut this factual finding, we AFFIRM the district court’s decision to deny the writ.

In concluding that the Texas state jury's use of the Bible was improper, though ultimately harmless error, the court said: "when a juror brings a Bible into the deliberations and points out to her fellow jurors specific passages that describe the very facts at issue in the case, the juror has crossed an important line." Today's Houston Chronicle reports on the decision. (See prior related posting.)

Malaysia Threatens To Suspend Catholic Paper For Political Editorial

Malaysia's Home Ministry is threatening to suspend the Catholic newsletter, The Herald, for publishing articles and editorials relating to politics. The Star on Wednesday reported that The Herald has been issued a "show cause" letter that claims it is violating the conditions of its publication permit that only allows it to publish articles about religion and religious activities. The current suspension threat focuses on an upcoming editorial about a by-election in Permatang Pauh. The paper's editor, Father Lawrence Andrew, says that the editorial will merely urge people to pray for a fair and just election. (See prior related posting.) [Thanks to Constant Lewis for the lead.]

Italian Suit Challenging Baptism Dropped

In Italy, the Union of Rationalist Atheists and Agnostics has dropped a lawsuit on behalf of a plaintiff who was attempting to have his name deleted from a baptism register. The suit challenged the right of parents to have their children baptized. According to World Net Daily, the suit alleged that since the law does not allow parents to enroll their children in organizations like labor unions, parents should also not be able to decide that their children should become members of religious associations. The complaint cited protection of children's religious freedom and Italian Constitutional Court precedents on free will and personal privacy in religious decisions. Alliance Defense Fund, which was involved in convincing the group to drop its lawsuit as frivolous, warned that while "such lawsuits may seem far-fetched, ... foreign legal decisions are increasingly cited in American courts."

Tanzania Debates Creation of Kadhi Courts

Dar Es Salaam's The Citizen reports today on an emotional debate in Tanzania's Parliament over whether Kadhi courts should be set up by the government to handle issues such a marriage, divorce and inheritance for Muslims. The government is studying a report by the Law Reform Commission on the issue. Proponents argue that such courts are a necessary part of the Islamic faith and that the CCM's 2005 election manifesto promised them. Opponents say such courts would be unconstitutional and that the Muslim religious bodies could deal with these issues without using taxpayer money for courts.

Ohio Library's Meeting Room Rules Enjoined

In Citizens for Community Values v. Upper Arlington Public Library Board of Trustees, (SD OH, Aug. 14, 2008), an Ohio federal district court found unconstitutional a public library's policy of making its meeting rooms available for a wide variety of meetings by non-profit groups, but barring their use for elements of meetings that are quintessentially religious or are inherent elements of a religious service. Finding that the library had turned its meeting rooms into designate public forums, the court held that plaintiff's proposed program on Politics and the Pulpit was consistent with activities permitted by the library, even though it included prayer. In concluding that it would issue a permanent injunction, the court said it was not expressing view on the Library's policy of excluding use of meeting rooms for religious services. Yesterday's Columbus Dispatch reports on the decision, as does a release from Alliance Defense Fund. (See prior related posting.)

Utah FLDS Members Will Be Able To Get Individual Title To Property

Yesterday's Deseret News reports that Utah Judge Denise Lindberg , who is overseeing the reorganization of the United Effort Plan that owns assets of the FLDS Church, says that she will not prevent FLDS members from gaining ownership of their own property. The judge's comments came in response to a question raised in court by FLDS spokesman, Willie Jessop. This marks the first time that FLDS members have been willing to participate at all in the court proceedings. Lindberg said, "I certainly am not going to put a religious test on the eventual distribution of property." There may, however, be restrictions on property when individuals gain ownership of it. The Houston Chronicle reports that restrictions include a ban on individuals returning the property to the church.

Congressional Candidate On "How Would Jesus Vote?"

Bennion Spencer, the Democratic congressional candidate from Utah's 3rd district, has written a book on Jesus and politics that will appear in October. Yesterday's Salt Lake Tribune reported that the book attempts to analyze which policies Jesus would support. At one point, Spencer also suggested that Jesus would vote for him for Congress. Spencer characterized as "sacrilegious" his opponent, John Chaffetz's, support for detention camps for illegal immigrants. Chaffetz said of Spencer: "I don't think it's appropriate to guess which candidate Jesus Christ would support. That's sacrilegious to me."

Contempt Petition Against Judge For Poster Dismissed

According to a release by the American Center for Law and Justice, an Ohio federal district judge has dismissed a contempt motion brought by the ACLU against Richland County (OH) Judge James DeWeese. (See prior posting.) The court found that the "Philosophies of Law In Conflict" poster that Judge DeWeese has posted in his courtroom is significantly different from the Ten Commandments display ordered removed by the federal court in 2002.

Christian Groups Seek Removal of Canadian Chief Justice

In Canada, 42 Christian and pro-life organizations, and one individual, have filed a complaint with the Canadian Judicial Council seeking removal of Canadian Supreme Court Justice Beverly McLachlin. The Province reports that the complaint stems from the fact that McLachlin chairs the Order of Canada Advisory Council. Last month abortion activist Henry Morgentaler was honored with appointment to the Order. The groups say that McLachln's role in the selection reduces respect for her and the judiciary. Some express concern that tthe appointment may influence the results in reproductive rights cases.

UPDATE: Canwest News Service reported on Saturday that at he annual Canadian Bar Association news conference, Chief Justice McLachlin addressed the Morgentaler controversy. She said that she chairs the Order of Canada Advisory Council only because the law requires her to do so, that her policy is to not promote any particular candidate, and to abstain from voting. She sees her role as merely assuring that the meeting runs properly and the voting process is fair--unless, as was not the case with Morgentaler, she needs to break a tie.