Thursday, September 24, 2009

House Committee Holds Hearings On Employment Non-Discrimination Act

Yesterday, the House Committee on Education and Labor held its first hearing on H.R. 3017, the Employment Non-Discrimination Act of 2009. The bill would prohibit employment discrimination, preferential treatment, and retaliation on the basis of sexual orientation or gender identity by employers with 15 or more employees. The bill includes an exemption for any "corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Acts of 1964 pursuant to section 702(a) or 703(e)(2) of such Act." A webcast of the hearing and transcripts of witnesses' statements are available on the Committee's website.

The testimony by Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism, endorsed the the bill's anti-discrimination provisions as stemming "from a core teaching shared by an array of faith traditions." he said that the religious institutions exemption has broad based support. However Craig L. Parshall, Senior Vice-President of the National Religious Broadcasters, criticized the religious institutions exemption as inadequate. More broadly, he argued:
Neither the Congress nor the courts have jurisdiction over the religious beliefs of people of faith. Holding the faithful in contempt because they advance unpopular religious doctrines itself evidences a form of cultural discrimination. Christian ministries that object to those sexual preferences which are in clear violation of the standards of the Bible are standing on a long and well-worn road.... The rights to preach and practice those beliefs spring from a Bill of Rights that is two hundred and twenty years old....

Polish Court Fines Catholic Magazine For Its Attack On Woman Seeking An Abortion

In Poland, a court has ordered the magazine Gosc Niedzielny, which is published by the Catholic Archdiocese of Katowice, to apologize and pay damages of nearly $11,000 (US) to Alicja Tysiac who attempted unsuccessfully to obtain an abortion when her pregnancy threatened her eyesight. The Catholic publication vilified Tysiac for "wanting to kill her child," and equated abortion with Nazi medical experiments. AP reported yesterday that Judge Ewa Solecka held that Catholics are free to express their moral disapproval of abortion in a general way, but must stop short of vilifying an individual. The offending article in Gosc Niedzielny was in response to an award of damages to Tysiac who had sued Poland in the European Court of Human Rights. The magazine says yesterday's decision infringes its freedom of speech, and it plans an appeal.

Polygamy Charges Dismissed By British Columbia Supreme Court

An expected constitutional challenge to polygamy laws in the Canadian province of British Columbia (see prior posting) has been short circuited as province's Supreme Court quashed the indictments against two FLDS leaders on other grounds. In Blackmore v. British Columbia (Attorney General), (BC Sup. Ct., Sept. 23, 2009), the Court held that British Columbia's attorney general lacked authority to order appointment of a second special prosecutor to bring polygamy charges against leaders of two separate factions of the FLDS Church after a first special prosecutor recommended against bringing charges. Section 7.5 of the Crown Counsel Act provides that "the decision of a special prosecutor with respect to any matter within his or her mandate is final." The Court held that the appointment here of successive prosecutors is exactly the kind of political interference with the charging process that the Crown Counsel Act is meant to prohibit. Canadian Press yesterday reported on the decision.

Spanish Judge Works Out Compromise With Witness Wearing Burka

A Spanish judge yesterday worked out a compromise with a witness in a criminal trial who insisted on wearing her burqa when she testified. Think Spain reports that the woman had been called to testify for the prosecution in the trial of nine Islamists charged with recruiting suicide bombers in order to send them to Iraq. After a conference in chambers with the woman and the prosecutor, the parties agreed that the witness would appear Monday wearing her burqa above her eyebrows and below her chin so the judge can see her face. She will testify with her back to the public gallery in the court room, and no cameras will be allowed.

Here Are Religious Liberty and Church-State Issues From Senate's Health Care Reform Bill

Last week, the Chairman of the Senate Finance Committee, Sen. Max Baucus, introduced his detailed proposal for comprehensive health care reform, the America's Healthy Future Act of 2009. (Press release.) The committee has posted a 223 page document (the Chairman's Mark) describing the bill and a 348-page document summarizing a large number of proposed amendments from other Finance Committee members. Several items covered in the bill and proposed amendments are of particular interest to those following religious liberty and church-state matters-- abortion, conscience provisions, spiritual health care, faith-based grants and abstinence education.

Extensive attention has been given to issues relating to abortion services. A lengthy summary of the abortion provisions in the bill are in the Chairman's Mark at pp. 28-30 of that document. The provisions would:

  • ensure that state laws prohibiting or requiring coverage or funding for abortions, and state laws involving abortion-related procedural requirements, are not preempted. The provision similarly provides that Federal conscience protections and abortion-related antidiscrimination laws would not be affected by the bill.
  • abortions (beyond those for which federal funds can already be used) cannot be a mandated benefit as part of a minimum benefits package but a qualified health plan would not be prohibited from providing additional coverage. Federal funds continue to be prohibited from being used to pay for abortions unless the pregnancy is due to rape, incest, or if the life of the mother is in danger.

  • no tax credit or cost-sharing credits may be used to pay for abortions beyond those for which federal funds may already be used. Insurers participating in any state-based exchange that offer additional abortion coverage must segregate from any premium and cost-sharing credits an amount of each enrollee's private premium dollars that is determined to be sufficient to cover the provision of those services.

  • in each state exchange, at least one plan must provide additional abortion coverage and at least one plan must not provide such coverage.

  • health benefits plans participating in state exchanges would be prohibited from discriminating against any individual health care provider or health care facility because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions.
Other provisions of interest in the Chairman's Mark are:

  • Pg. 31: Exemptions from the requirement to have health coverage would be allowed for religious objections that are consistent with those allowed under Medicare.
  • Pg. 32: Exemptions from the excise tax on those who do not purchase health insurance policies will be made for any health arrangement provided by established religious organizations comprised of individuals with sincerely held beliefs (such as those participating in Health Sharing Ministries),.
  • Pg. 76: states can apply for funds to provide incentives to Medicaid enrollees who successfully complete healthy lifestyle programs. In designing plans, States may collaborate with community-based programs, non-profit organizations, providers, and faith-based groups, among others.

Many of the proposed amendments are also of interest to those concerned with religious liberty and church-state issues. Here is a summary with an indication of the pages at which they appear:

  • Pg. 36: Rockefeller Amendment #C22: $80 million annually would go to non-profit, community-based, and faith-based organizations as well as to states to cover the administrative costs of system and policy improvements that expedite enrollment and retention in the Children's Health Insurance Program.
  • Pg. 79: Kerry-Hatch Amendment #C-14 (pg. 79): No qualified health plan offered through a State Exchange may deny benefits for religious or spiritual health care.
  • Pg. 201: Hatch Amendment #C-10: Restores funding for abstinence education.
  • Pg. 203: Hatch Amendment #C-12: Prohibits federal funds from being used to pay for assisted suicide and offers conscience protections to providers or plans refusing to offer assisted suicide services.
  • Pg. 204: Hatch Amendment #C13: Non-discrimination on abortion and respect for right of conscience.
  • Pg. 205: Hatch Amendment #C14: Prohibits federal funds under the Act from being used for elective abortions and plans that cover such abortions.
  • Pg. 310: Enzi Amendment #C12: Prohibits requirement that a health plan cover abortions except in the case where the mother‘s life is in danger or the pregnancy is the result of rape or incest.
  • Pg. 311: Enzi Amendment #C13: Prohibits federal funds to be used to pay for any abortion or cover any part of the cost of any health plan that includes coverage of abortion, except in the case where the mother‘s life is in danger or the pregnancy is the result of rape or incest. But individuals may purchase supplemental abortion coverage with non-federal funds.
  • Pg. 312: Enzi Amendment #C14: Prohibits any provision in the bill from overturning or preempting constitutionally permissible laws or regulations of a State, that place limitations or procedural requirements on abortions, including any state law requiring parental notification or consent for the performance of an abortion on a minor.
  • Pg. 313: Enzi Amendment #C15: Prohibits the federal, state or local governments, health care providers or plans that receives federal funds from discriminating against an individual or institution on the basis that they do not perform or participate in specific surgical or medical procedures or prescribe certain pharmaceuticals in violation of the moral, ethical, or religious beliefs of the individual or entity.

Yesterday the Interfaith Alliance released letters it sent to Sen. Orrin Hatch objecting to his Amendment #C-10 and to Sen. Michael Enzi objecting to his Amendment #C-15.

Wednesday, September 23, 2009

Litigation Over Church Property Was Costly For Both Sides In Colorado Springs

Yesterday's Colorado Springs Gazette reports on the high cost to both sides of the litigation over ownership of Colorado Springs Grace Church & St. Stephen's $17 million building after members split from the Episcopal Church USA. (See prior posting.) St. George’s Anglican Church-- the break away group that ultimately gave up the building-- has asked its members for a one-time family donation of $1,500 each to cover about $750,000 in legal fees plus tens of thousands of dollars in court costs. The Episcopal Diocese of Colorado spent $2.9 million to defend its ownership of the building. It was forced to sell stocks and bonds from its endowment portfolio to cover the costs at a time when its investment income dropped dramatically because of market conditions.

Canadian Appeals Court Permits Religious Groups' Intervention In Prostitution Law Challenge

According to today's Toronto Globe & Mail, the Court of Appeal for Ontario this week reversed a decision of a Canadian trial judge and has permitted two religious groups and a conservative women's group to intervene in a case challenging the constitutionality of several of Ontario's anti-prostitution laws. The challengers argue that prostitution laws violate a constitutional guarantee to life, liberty and security by exposing sex workers to danger. A 3-judge panel of the appeals court ruled that the Christian Legal Fellowship, REAL Women of Canada and the Catholic Civil Rights League have a legitimate contribution to make to an issue that has moral dimensions. The challengers had objected to the groups' intervention, arguing that the case involves the health and safety of sex trade workers, and not moral questions. (See prior related posting.)

Today Is 20th Annual "See You At The Pole"

Today is the 20th annual See You At the Pole event at schools around the country. The event's website describes its purpose: "See You at the Pole™ is all about prayer. It's about you coming together and laying aside all of the labels and groups for one day, to simply engage with God in prayer and connect with fellow Christians in unity around the flag pole." Charisma News says that sponsors expect 2 million students-- from elementary school to college age-- to attend the student-led events, usually scheduled before the formal beginning of the school day. Church-state questions still remain as to the permissibility of participation in SYATP by teachers and administrators, and about how the programs may be publicized in schools. (See prior posting.)

Baptist Joint Committee Executive Director J. Brent Walker, writing Monday at the Washington Post's On Faith, suggests guidelines for conducting programs. They include a warning that: "students should avoid being lulled into a civil religion trap. Joining hands in a circle facing the quintessential symbol of our country, the American Flag, makes this a real risk. Yes, we are told in Scriptures to pray for our leaders. Students should understand they are not praying to Caesar, but to God." Jamison Foser at Media Matters criticizes Walker's suggestions, saying that SYATP undermines the spirit, if not the letter, of church-state separation.

Paper Says Minnesota's Funding of Drug Program Raises Church-State Issues

Yesterday's Minnesota Independent features an investigative article on state funding of Minnesota Teen Challenge's faith-based drug treatment centers. MnTC has received nearly $2.4 million in state funding since 2007, primarily from the Minnesota Department of Human Services' Consolidated Chemical Dependency Treatment Fund. County agencies, using state guidelines, determine which clients need treatment and then pay state-licensed providers (such as Teen Challenge) for the treatment on a fee-for-service basis. The state Fund reimburses counties for much of their costs. Teen Challenge says that state funds are not used for evangelical programming. However, according to the newspaper's report: "most of the language about the program — coming from its managers, Web site and clients — references the transformational power of Jesus Christ, as opposed to chemical health and behavior therapy." Last year, American United called for termination of federal grants to Minnesota Teen Challenge because of Establishment Clause concerns. (See prior posting.)

New Saudi University, Sponsored By King, Moves Away From Strict Islamic Norms

UAE's The National reports that today in Thuwal, Saudi Arabia, the King Abdullah University for Science and Technology (KAUST) will be dedicated. Long the dream of King Abdullah, KAUST--a graduate university dedicated to scientific research and innovation-- has been set up with an endowment of over $10 billion. The King has organized the University so that it is independent and has freed it somewhat from the religious influences that dominate in other Saudi universities. In particular, the country's conservative religious establishment has been critical that the KAUST will be co-educational, with men and women studying and working together. On campus, women will not have to wear the traditional abaya and they will be permitted to drive on campus. University officials are not aiming to spread these freedoms for women elsewhere in the Kingdom, but do hope that KAUST will force the national education system to replace rote learning with creative thinking.

Uganda's Government Will Propose Creation of Khadi Courts

Uganda's Constitution, Sec. 129, provides for various courts to be established, including "qadhis' courts for marriage, divorce, inheritance of property and guardianship, as may be prescribed by Parliament." New Vision reported yesterday that Uganda's Attorney General, Freddie Ruhindi, told a committee of Parliament that the Government will soon propose a bill to implement this provision. The bill will provide for the creation of Islamic Khadi courts in which Muslims will be able to apply Sharia law.

Tuesday, September 22, 2009

Rockland County Health Officials Again Monitoring Kapparot Ritual Site

The Jewish holy day of Yom Kippur begins Sunday evening. Again this year, the Rockland County (NY) Health Department is giving close attention to the site where Orthodox Jews are carrying out the pre-Yom Kippur ritual of kapparot-- the symbolic passing off of sins by circling a live chicken above one's head three times. The chicken is then slaughtered, and donated for food for the needy. According to today's Lower Huson Valley Journal News, for the third year in a row authorities have found sanitary code violations by Moshe Lefkowitz who is bringing some 11,000 chickens to a site in front of a former drive-in move theater in Rockland County, New York. The tradition of kapparot is controversial, both in terms of its theology and its treatment of animals. Many Orthodox Jews substitute funds equal to the value of the chicken, using that in the ceremony and then donating the funds to charity for the poor. (Background.) [Thanks to Vos Iz Neias? for the lead.]

Jediism Founder Accuses British Supermarket Chain of Religious Discrimination

In Britain, the founder of the Jedi religion (inspired by the Star Wars films) has accused Tesco supermarkets of religious discrimination. The London Guardian reported last Friday that Daniel Jones was ordered by staff at a Tesco store in north Wales to remove his hood while in the store. Jones, also known by his Jedi name Morda Hehol, said his religion requires him to wear the hood while in public. He is considering legal action against Tesco. Tesco though was undaunted in enforcing its rules, saying: "Obi-Wan Kenobi, Yoda and Luke Skywalker all appeared hoodless without ever going over to the Dark Side and we are only aware of the Emperor as one who never removed his hood. If Jedi walk around our stores with their hoods on, they'll miss lots of special offers."

Jewish Groups Protest Plans For Saturday Iowa Caucuses In 2010

On Friday, the Jewish Council for Public Affairs released the text of a letter sent to the chairmen of Iowa's Republican and Democratic parties by a coalition of 18 national Jewish groups. The letter protests plans to hold the January 2010 Iowa party caucuses on a Saturday (the Jewish Sabbath), saying: "Saturday caucuses will force members of the Iowa Jewish community to choose between their faith and their civic duties." Caucuses do not permit absentee voting. Friday's Chicago Tribune reports that the change to Saturday was made by the parties to enable more working people to attend the caucuses. Party leaders say the change is an experiment, and that it does not necessarily mean that the 2012 Iowa Presidential caucuses would also be moved to Saturday.

Teenager Will Stay In Florida For Now As Clarifications Are Sought

A court in Orlando, Florida yesterday held another hearing in the case of Rifqa Bary, the 17-year old who fled her Muslim parents' home in Ohio and came to Florida claiming that she feared her father would kill her because she had converted to Christianity. (See prior posting.) WBNS TV 10 reports Circuit judge Daniel Dawson ordered that for now Rifqa will remain in Florida, but that she may have no contact with Pastor Blake Lorenz's family with whom she had been staying. According to the St. Petersburg Times, Dawson will confer with a judge in Ohio to determine if a legitimate dependency action has been filed. Rifqa's guardian ad litem is concerned that the petition filed in Ohio is merely a ploy, and the case will be dropped once Rifqa is returned.

According to Central Florida News 13, a report by the Florida Department of law Enforcement found a number of misrepresentations in Rifqa Bary's story. She did not hitch hike to the Greyhound bus station to flee, but instead she was driven to the bus station by the man who baptized her in Ohio. Her bus ticket was actually purchased in Orlando under a false name. Currently four different attorneys claim to be representing Rifqa. The Florida Department of Children and Families has filed a motion asking the court to determine who should be recognized as her attorney.

UPDATE: WBNS TV10 reported on Tuesday that Pastor Blake Lorenz and his family are under criminal investigation for possibly helping Bary flee from Ohio.

Georgetown's Feldblum Nominated To EEOC

Last week, President Obama nominated Chai Rachel Feldblum to be a member of the Equal Employment Opportunity Commission. (White House release.) The EEOC enforces employment discrimination laws, including the ban on religious discrimination in employment. Feldblum currently is Professor of Law and Director of the Federal Legislation Clinic at Georgetown University Law Center. The nomination to one of the five positions as Commission member must still be confirmed by the Senate.

Monday, September 21, 2009

Recent Prisoner Free Exercise Cases

In Timbuktu v. Malone, 2009 U.S. Dist. LEXIS 82053 (ED WI, Sept. 9, 2009), a Wisconsin federal district court refused to grant summary judgement to two Muslim inmates who alleged that in a number of instances their prayers were interrupted or stopped, the location of their prayers were changed and that there were infringements on their observance of Ramadan and other religious feasts.

In Norton v. Kootenai County, 2009 U.S. Dist. LEXIS 82863 (D ID, Sept. 11, 2009), an Idaho federal district court dismissed plaintiff's claim that his First Amendment rights were violated when he was ordered to attend Alcoholics Anonymous meetings as a condition of his probation. The court concluded that while there was a religious component to the program, plaintiff never notified his probation officer of his objections to it.

In Parnell v. Tucker, 2009 U.S. Dist. LEXIS 83103 (ND CA, Aug. 27, 2009), a California federal district court permitted plaintiff to move ahead with claims against certain of the defendants that restrictions on his exercise of his Islamic religion, such as denying him access to the chapel or yard for congregational prayers and study, violate his First Amendment rights and his rights under RLUIPA.

In Hodgson v. Fabian, 2009 U.S. Dist. LEXIS 83134 (D MN, Aug. 19, 2009), a Minnesota federal magistrate judge recommended dismissing claims by a Wiccan prisoner that his rights are violated by prison policies that resulted in confiscation of issues of a Wiccan magazine, refusing to allow him and the Wiccan group to smudge or burn incense in the prison chapel, limiting the herbs that inmates could order for religious use, and prohibiting keeping or using prayer oil in inmate cells.

In Jordan v. Caruso, 2009 U.S. Dist. LEXIS 83575 (ED MI, Sept. 14, 2009), a Michigan federal district court rejected a claim by a prisoner who was a member of the Moorish Science Temple of America that his rights were violated when prison officials refused to use the term "El" as part of his name on his cell door card, as required by his religious beliefs. The magistrate's recommendations in the case are at 2009 U.S. Dist LEXIS 83584 (June 11, 2009).

In Hundal v. Lackner, 2009 U.S. Dist. LEXIS 83814 (CD CA, Sept. 15, 2009), a California federal magistrate judge held that a Sikh prisoner who was denied an exemption from beard length restrictions had not stated a claim under the First Amendment, but had stated a claim under RLUIPA. However the complaint was dismissed with leave to refile to eliminate the RLUIPA claims for damages against defendants in their individual capacities which the court held were not authorized under the statute.

In Cromer v. Unknown Chaney, 2009 U.S. Dist. LEXIS 84726 (WD MI, Aug. 26, 2009), a Michigan federal magistrate judge recommended dismissal of a claim that plaintiff's rights were violated when prison authorities confiscated Five Percent Nation religious materials from his cell.

In Robinson v. Meyers, 2009 U.S. Dist. LEXIS 84202 (D SC, Aug. 10, 2009), a South Carolina federal magistrate judge recommended granting summary judgement to defendants in a case in which a pre-trial detainee who was a member of the House of Yahweh complained about a 5-month delay in obtaining a diet meeting his religious requirements. The delay resulted from confusion about Plaintiff's religious affiliation and the type of diet required under the beliefs of that religion.

South Carolina High Court Rules For Break-Away Anglican Parish

Last week the South Carolina Supreme Court issued an interesting decision in litigation stemming the 2004 vote by members of All Saints Parish, Waccamaw, to break away from the Episcopal Church USA and instead affiliate with the more conservative Episcopal Church of Rwanda. A small group of members remained loyal to ECUSA and the South Carolina Episcopal Diocese and purported to elect a new vestry for the congregation. In All Saints Parish Waccamaw v. The Protestant Episcopal Church in the Diocese of South Carolina, (SC Sup. Ct., Sept. 18, 2009), the court, applying neutral principles of civil law, held that the Parish's property belongs to the break-away group and that the vestry elected by the majority break-away group are the true officers of the Parish.

The court's decision on property ownership held that the Statute of Uses converted beneficial ownership of Parish property under a 1745 Trust Deed into legal title for the Congregation of All Saints Parish. The Court went on to hold that while the Diocese of South Carolina amended its Constitution in 1987 to add the Dennis Canon-- which declares a trust in favor of the ECUSA and the Diocese on all real and personal property held by any congregation-- the action did not affect property of All Saints Parish. The Court said that the Dennis Canon could only impose a trust on property owned by the Diocese. A comment on the decision on Episcopal Cafe makes the interesting point that "the decision simply assumes (without considering the matter) that South Carolina can switch from being a 'deference' state to a 'neutral principles' state without thereby interfering with anybody's established property rights." [Thanks to John B. Chilton for the lead.]

Recent Articles Of Interest

From SSRN:

From SmartCILP:

  • A Symposium on God and the Land: Conflicts Over Land Use and Religious Freedom. (Table of Contents.) 2 Albany Government Law Review 354-652 (2009).

Value Voters Summit Held Last Week End

The Value Voters Summit was held this past weekend in Washington, D.C., bringing together Christian conservatives from around the country. CQ Politics reports on the Summit's straw poll for 2012 Presidential candidate. The winner was former Arkansas Governor Mike Huckabee. On issues, 41% said that abortion was the primary issue that would determine their choice for President. 18% chose religious liberty as their primary concern.