Religion Clause

Tuesday, December 22, 2009

Bishops Continue To Oppose Senate Health Care Bill-- Looking At Why

While the U.S. Senate appears poised to finally pass a health care reform bill before Christmas, the U.S. Conference of Catholic Bishops remains opposed to the Senate version on the ground that its limits on abortion funding do not go far enough. According to statements issued last Friday and Saturday by the Bishops, the Manager's Amendment (full text) to H.R. 3590 "does not seem to allow purchasers who exercise freedom of choice or of conscience to 'opt out' of abortion coverage in federally subsidized health plans that include such coverage. Instead it will require purchasers of such plans to pay a distinct fee or surcharge which is extracted solely to help pay for other people's abortions." The Bishops stressed that their criteria for acceptable health care reform includes three moral criteria: "respect for life and conscience; affordability for the poor; and access to much-needed basic health care for immigrants." According to The Boston Pilot yesterday, the Bishops applauded amendments that expanded adoption tax credits and assistance for pregnant women, but the abortion language apparently remains the block to obtaining their support.

At issue is nine pages of language (pp. 38-46 of Manager's Amendment) on how abortion coverage will be handled. It provides (1) any state may elect to bar abortion coverage in policies offered through the Exchange in that state; (2) elsewhere each insurance company may decide whether or not its plans will cover abortion services; (3) if a plan does cover abortions, no federal subsidy may be used to pay for that coverage; (4) instead the insurer must collect a separate payment from the insured for that coverage and segregate those funds for use for abortion services.

The Bishops' concern seems to be that under this arrangement, abortion coverage will still be in some policies that receive government subsidies, so long as a separate check is written for the part of the premium applicable to that coverage. Instead, according to a Dec. 14 letter from the Bishops, they want language in the House bill that was proposed as an amendment by Sen. Ben Nelson, but was defeated by the Senate. That language provides that no federal funds could be used "to cover any part of the costs of any health plan that includes abortion coverage." After that loss, Sen. Nelson negotiated the language in the Manager's Amendment and according to AP argued that the differences were "about a staple." By that he means that the disagreement is over whether abortion coverage-- which would be paid for separately in either case-- would be a part of the subsidized policy (not acceptable to the Bishops) or in a separate rider stapled to it (acceptable to the Bishops).

As an aside, the U.S. is not the only country struggling with the abortion issue. Interfax reported yesterday that Russian President Dmitry Medvedev has signed amendments to the country's Federal Advertising Law banning the advertising of abortions in a wide variety of media and locations. Many of the restrictions seem to be aimed at preventing advertising of abortions to minors.

NY Court Upholds Bifurcated Arbitration Procedure By Rabbinical Tribunal

In Shimon v. Silberman, (NY Sup. Ct., Dec. 21, 2009), a New York trial court, in a decision it described as involving an issue of first impression, confirmed an award made in a bifurcated arbitration proceeding conducted by the Shevet Halevi Rabbinical Court. The award involved a $465,000 unpaid balance on a promissory note from a loan used by the Sanz-Klausenber Chassidic Community to complete construction of the new building for the Sanz girls school. In an initial ruling, the Rabbinical Court found liability, but postponed determining the amount until an additional hearing was held. At that point respondents informed the Rabbinical Court that they would not attend any future hearing. A subsequent decision established the amount of liability and ordered it paid within a month. The state trial court rejected respondents' arguments that the bifurcated process amounted to a change in an initial arbitration award without following the statutory procedures for modification. Respondents also argued that the award was not served on them as required by statute. However the court held that no prejudice had been shown by respondents that would justify the award being vacated.

Mexico City Approves Gay Marriage, Adoptions

Mexico City yesterday became the first Latin American city to legislatively approve same-sex marriage. (A court decision in Buenos Aires, Argentina in November had approved same-sex marriages, but the issue is tied up in further litigation.) CNN and AP report that the city's legislative assembly approved the change by a vote of 39-20, with 5 abstentions. In a second vote of 31-24, with 9 abstentions, the assembly approved legalizing adoptions by same-sex couples. Mayor Marcelo Ebrard is expected to sign the law. The Roman Catholic Church which is the dominant religion in Mexico opposes the change. 91% of Mexico's population is Catholic. (Background.) The city had approved same-sex civil unions in 2007.

5th Circuit: Town Not Liable For Police Officer's Infringement of Preachers' Rights

In World Wide Street Preachers Fellowship v. Town of Columbia, (5th Cir., Dec. 21, 2009), the U.S. 5th Circuit Court of Appeals held that the Town of Columbia, Louisiana is not liable under 42 USC Sec. 1983 for the violation of First Amendment rights of a group of preachers by a town police officer who in February 2005 threatened the group with arrest if they did not disperse. The preachers' group demonstrates along roadways carrying anti-abortion signs, including ones with pictures of aborted fetuses. They had demonstrated in Columbia a number of times without police interference.

There is no respondeat superior liability under Section 1983, so another basis must be found if the town is to be held liable. The court rejected three different bases for liability that were urged by plaintiffs. It concluded that Columbia did not have a custom or practice of applying inapplicable statutes to limit the preachers’ rights to demonstrate because of the graphic nature of their signs; 2) the town did not ratify the police officer's decision to violate the preachers’ rights; and 3) Columbia did not have a policy of failing to adequately train its police officers on the rights of protesters. AP yesterday reported on the decision. (See prior related posting.)

Indian Court Orders Participation For Dalit Village In Hindu Festival

In India, the Madras High Court has issued a decision in favor of low caste Dalits who want to be part of the annual festival observed during the Tamil summer month of Aadi in which the diety from the Arulmighu Poottai Mariamman Temple near Sankarapuram is transported on a temple car. The court's decision is the subject of reports today in the Times of India and The Hindu. Controversy began in 2007 when Dalits demanded that the temple car go through their village and temple authorities objected. The temple is under the control of the state's Hindu Religious and Charitable Endowments Department. High Court Justice Chandru said in his opinion: "Our Constitution also envisages equality, which includes special help and care for the weaker and oppressed sections of society, who have been downtrodden for thousands of years." The court ruled that the only constraint on taking the temple car through the Dalit village would be the width of the road. If that is a problem, authorities are to explore the feasibility of using a small car (sakadai) to take the deity through the Dalit colony and then back to the main street.

County Removes Stars and Angels From Its Christmas Trees

In Sonoma County, California, Acting County Administrator Chris Thomas has ordered stars, angels and other religious symbols removed from all Christmas trees in county buildings after a complaint was filed by an activist who has a long history of opposing government use of religious symbols. Yesterday's Santa Rosa (CA) Press Democrat reports that the complaint was lodged by Irv Sutley, a disabled veteran who is an atheist and is chairman of the Sonoma County Peace and Freedom Party. County Administrator Thomas said he was not aware that a star on top of a Christmas tree might be seen as a religious symbol until consulting with county attorneys.

Anglican Priest Sues His Attorney For Malpractice After He Loses Fraud Suit

In 2002, Episcopal Bishop Charles Bennison summarily removed Rev. David Moyer as rector of Good Shepherd Episcopal parish in Rosemont, Pennsylvania on the ground that he had abandoned the communion of the Episcopal Church when he was ordained by the more conservative Traditional Anglican Union. In response, Moyer sued Bishop Bennison for fraud. However Moyer lost his suit when the jury found no fraud had been perpetrated. (See prior postings 1, 2, 3.) Now, according to Virtue Online yesterday, Fr. Moyer is suing the attorney who handled his case against Bishop Bennison for malpractice. Meanwhile Moyer remains rector of Good Shepherd which still pays his salary, as the suit by the Diocese to recover Good Shepherd property and assets goes on.

In his malpractice suit, Moyer claims that his former lawyer, John H. Lewis, Jr., and his law firm, Montgomery, McCracken, Walker & Rhoads, mishandled his deposition and failed to present certain key evidence to the jury. The law firm has counterclaimed alleging that the malpractice suit was brought in bad faith. Attorney Lewis, who had been close friends with Moyer, handled the trial and pre-trial for him pro bono. Now though the law firm's counterclaim includes a claim for $66,000 in unpaid legal fees, apparently for legal work since the trial responding to the lawsuit by the Diocese that is attempting to regain control of Good Shepherd.

6th Circuit Upholds Deportation To Jordan of Christian Couple, Rejecting Persecution Claims

In Helal v. Holder, (6th Cir., Dec. 17, 2009), the U.S. 6th Circuit Court of Appeals agreed with the Board of Immigration Appeals that a Palestinian Christian couple who are citizens of Jordan are not entitled to withholding of removal from the United States for fear of religious persecution in Jordan. The court held that the harassment and discrimination the couple experienced in Jordan because of their Christian faith did not rise to the level of persecution that the statute requires for withholding of removal. Nor did they demonstrate a likelihood that they would suffer future persecution if returned to Jordan. While there is arguably a pattern of persecuting Christians who have converted from Islam, there is no evidence of similar persecution in Jordan of those who were born as Christians. The couple also failed to show that they were eligible for protection under the Convention Against Torture.

Monday, December 21, 2009

Israel's High Court Finds Alternative To Contempt In Kosher Certification Challenge

In June, Israel's High Court of Justice ordered the country's Chief Rabbinate to issue a kashrut certificate (certifying the business is kosher) to a bakery operated by a Messianic Jew after the Chief Rabbi of Ashdod Yosef Sheinin, withdrew it claiming that the owner could not be trusted to maintain the proper standards of kashrut without enhanced supervision. (See prior posting.) Rabbi Sheinin has still not complied, and Israel's Chief Rabbi Shlomo Amar has asked the Knesset to enact legislation to remove High Court jurisdiction over matters of kashrut. (YNet News 12/13.) This morning the High Court, instead of holding Rabbi Sheinin in contempt, issued an order requiring the Chief Rabbinate to designate another rabbi who will grant the kashrut certificate. (YNet News, 12/21.) The court ordered the certification to be issued within a month. (Arutz Sheva.) [Thanks to Joel Katz, Relig. & State In Israel, for the lead.]

Child Support Fight Over Home Schooling and Catholic Beliefs Back In Appeals Court

In McFarlane v. McFarlane, (OH Ct. App., Dec. 17, 2009), an Ohio appellate court was faced with two questions involving the relationship of parents' religious views to the award of child support. The parties' original divorce action also found its way to the state court of appeals three years ago. (MacFarlane I -prior posting).) (Also see prior related posting.) In that decision, the court affirmed award of child custody to the husband. A central issue in the disagreement between the parents was the wife's claim that her Catholic religious beliefs required that she home school her children. The trial court in awarding custody to the father, also ordered the children be enrolled in a traditional school, rather than home schooled. In the current phase of the case, the court below ordered the mother, whose income is only one-quarter that of the father's because she chose not to work full time, to pay child support to the father, in part because of the added expenses involved in sending children to a Catholic parochial school rather than public school. The Court of Appeals however, reversed on this issue, holding that "it seems unjust and inappropriate to require wife to pay for private schooling when enrolling the children in a traditional school, be it private or public, was clearly not her preference."

A second issue involved the wife's contention that she should be able to show that there was an ongoing agreement between her and her husband that she not work outside the home so she could properly raise her children during her visitation times. The court held that the law of the case required exclusion of this evidence since the court of appeals in the original divorce case held that any claimed agreement flowing from the Catholic marriage ceremony is unenforceable under the statute of frauds since it is an agreement made on the consideration of marriage that is not in writing.

FLDS Polygamist Gets 33 Years For Sexual Assault On Child

Last Thursday, a jury in Eldorado, Texas last Thursday sentenced FLDS member Allan Eugene Keate to 33 years in prison for sexually assaulting a child. The Salt Lake Tribune last week reported on the conviction of Keate for his "spiritual " or "celestial" polygamous marriage to a 15-year-old girl who gave birth at age 16. The San Angelo Standard Times reports that Keate had given away three of his own daughters in marriage to older men. Keate was one of ten men indicted in November 2008 on charges of sexual assault growing out of illegal marriages to underage girls. AP reports that Keate had six wives ages 17 to 49 in 2007.

Malaysian Coalition Calls For Royal Commission On Religious Issues

In Malaysia, the Pakatan Rakyat (a coalition of three political parties) has formally proposed the creation of a Royal Commission to deal with religious issues, particularly where civil and syariah law overlap. Saturday's Malaysian Insider reported on the coalition's new Common Policy Framework document which defends the dominant position of Islam in Malaysia, but calls for more dialogue between various cultures and religions to promote understanding in the face of increasing religious extremism. It also promises to assure suitable burial places for all religions. The new statement avoids calling for creation of an Islamic state-- a position that has been the contentious policy of one coalition partner, the PAS.

Sunday, December 20, 2009

Recent Prisoner Free Exercise Cases

In Manning v. Ryan, (9th Cir., Dec. 14, 2009), the U.S. 9th Circuit Court of Appeals upheld dismissal of a prisoner's free exercise claim because plaintiff failed to comply with the trial court's order to serve the remaining defendant with the amended complaint.

In Williams v. Sampson, 2009 U.S. Dist. LEXIS 116438 (ED CA, Dec. 15, 2009), a California federal magistrate judge concluded that an inmate's vague allegations of infringement of religious rights were insufficient for him to move ahead with an equal protection or free exercise claim.

In Black v. Ellsworth, 2009 U.S. Dist. LEXIS 116305 (SD IN, Dec. 11, 2009), an Indiana federal district court found that a Rastafarian inmate's religious needs were not disregarded. The jail chaplain ordered a special diet for him, provided him with a King James version of the Bible and informed him he would be allowed to keep a copy of the Holey Piley if he could secure a copy from someone outside of the jail.

In Dean v. Giles, 2009 U.S. Dist. LEXIS 116355 (MD AL, Nov. 19, 2009), an Alabama federal magistrate judge recommended rejecting First amendment and RLUIPA claims by a Native American inmate who complained that prison barbers cut his hair short in violation of his religious beliefs that required he keep his hair uncut. Plaintiff never told prison officials of his religious beliefs, nor did he object to the haircuts prior to filing this lawsuit. The court said that unintentional interference with religious exercise does not amount to actionable conduct by prison officials. the court also noted that prison grooming policies have repeatedly been upheld by various courts.

In Curry v. Bobby, 2009 U.S. Dist. LEXIS 116887 (ND OH, Dec. 16, 2009), an Ohio federal district court rejected claims by a Rastafarian prisoner in a maximum security facility that his free exercise rights and his rights under RLUIPA were violated when he was denied permission to wear his hair in dreadlocks.

In Johnson v. Boyd, 2009 U.S. Dist. LEXIS 117090 (ED AR, Dec. 15, 2009), an Arkansas federal district court accepted a magistrate's recommendation (2009 U.S. Dist. LEXIS 117071) and permitted an inmate to proceed with his free exercise claim against prison officials only in their individual capacities. Plaintiff claims that, while he was in protective custody, defendants seized his Bible.

In Stearns-Miller v. State of Florida, 2009 U.S. Dist. LEXIS 117663 (ND FL, Nov. 16, 2009), a Florida federal magistrate judge recommended dismissal without prejudice of claims by an inmate that his rights under the 1st Amendment and RLUIPA were violated when prison officials refused to allow him to listen to an audio cassette of the Bible and refused to process of 200 pieces of his mail, some of it to clergymen. Since plaintiff had previously been found at least three times to have filed frivolous litigation, the court, under 28 USC 1915(g) refused to permit he to proceed in forma pauperis.

India's Parliament Gets Report Urging Delinking Scheduled Caste Status From Religion

In India on Friday, the Report of the National Commission for Religious and Linguistic Minorities was finally submitted to Parliament. The report of the Commission that is headed by former India Supreme Court Justice Ranganath Misra was originally circulated two years ago, but then disappeared from public view. According to Indian Express, the report's recommendations include delinking Scheduled Caste status from religion and setting aside a 10% quota in educational institutions and government jobs for Muslims, along with 5% for other minorities. Currently Scheduled Caste status is available only to Hindus, Buddhists and Sikhs. The report also calls for continuing Scheduled Caste status for Dalits who convert from Hinudism to other religions. The Times of India has details. The government today said it will examine the report "with all sincerity", but refused to commit to accepting its recommendations. (Times of India.)

2nd Circuit: No Right To Be Free of Selective Immigration Law Enforcement

In Turkmen v. Ashcroft, (2d Cir., Dec. 18, 2009), the U.S. 2nd Circuit Court of Appeals rejected claims by seven Arab and Muslim detainees who were in the United States illegally. The now-deported detainees argued that their period of detention before they were removed from the country was illegally prolonged so the government could investigate whether they were tied to terrorism. As reported by New York Law Journal, plaintiffs' counsel contended that the government used religion and ethnicity as a proxy for suspicion of terrorist activity in deciding to prolong plaintiffs' detention. The Second Circuit, however, dismissed plaintiffs' equal protection claims on qualified immunity grounds. It held that "plaintiffs point to no authority clearly establishing an equal protection right to be free of selective enforcement of the immigration laws based on national origin, race, or religion...."

Two Religious Displays On Their Way To Government Property

While a number of governmental units this year are removing religious displays (see prior posting), there is some movement in the opposite direction. Reports from the Oklahoman and AP indicate that last Thursday the Oklahoma Capitol Preservation Committee voted to implement a law passed by the legislature earlier this year (see prior posting) to place a privately funded Ten Commandments monument on the grounds of the State Capitol. It will be placed on an existing raised walkway on the north side of the building. The Commission chairman said he hoped this would start a long-planned development of that area for additional monuments and sculptures. While the 10th Circuit earlier this year struck down a Ten Commandments display on the grounds of an Oklahoma county courthouse (see prior posting), drafters of the state law hope to avoid a similar fate by calling for a monument identical to the one upheld by the U.S. Supreme Court in 2005 in Van Orden v. Perry.

Meanwhile the Luzerne County, Pennsylvania, Commissioners are working to restore a nativity scene and menorah removed last week from the courthouse lawn after a complaint by the ACLU and Americans United. (See prior posting.) A local Wilkes-Barre law firm is contributing $1000 and offering its legal services free of charge to develop a display that meets constitutional standards by also including non-religious elements. According to yesterday's Wilkes-Barre Citizens Voice, an ACLU staff attorney said: "We applaud the county for wanting to comply with the law and we'll see how they do."

Court Refuses To Dismiss Challenge To Graded Released Time Religious Course

In Moss v. Spartanburg County School District No. 7, 2009 U.S. Dist. LEXIS 117744 (D SC, Dec. 17, 2009),a South Carolina federal district court refused to dismiss an Establishment Clause challenge to the released time program for religious instruction that was set up by the Spartanburg County (SC) School District. After finding that parents of school children and the Freedom From Religion Foundation have standing, the court held that plaintiffs had stated a "facially plausible" Establishment Clause claim. Plaintiffs alleged that students attending off-site released time courses get an advantage in competition for state college scholarships and other educational opportunities. Students are given an academic grade for the released time course based on the student's religious status and progress as evaluated by the religious group offering the course. The grades are awarded by a nearby religious high school and then transferred for credit to the student's public high school transcript. This distinguishes the program from the U.S. Supreme Court's decision in Zoraach v. Clauson which upheld a New York released time program. The federal district court however dismissed a second claim by plaintiffs asserting an equal protection violation.

Court OKs Eminent Domain In Cemetery Acquisition for O'Hare Airport Expansion

The Chicago Tribune reports that on Friday, an Illinois state trial court ruled that Chicago can proceed with acquiring by eminent domain the 6.3 acre St. Johannes Cemetery in order to build a new runway at O'Hare Airport. Some 900 known graves will be moved. St. John's United Church of Christ that owns the cemetery says that the beliefs of those buried there call for them to "remain undisturbed until the day of resurrection of Jesus Christ." This is one of the last impediments to beginning construction after a settlement with the village of Bensenville last month. In 2006, the D.C. Circuit rejected a RFRA challenge to the relocation plans. (See prior posting.)

Friday, December 18, 2009

UN General Assembly Passes Defamation of Religion Resolution With Less Support Than Last Year

Today for the fifth year in a row, the United Nations General Assembly passed a non-binding resolution calling for "adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from the defamation of religions, and incitement to religious hatred in general."It also condemns ethnic and religious profiling of Muslims. Reuters reports that the vote was 80 in favor, 61 against and 42 abstentions. The resolution, sponsored by the Organization of the Islamic Conference, has been widely criticized in Western countries as laying a groundwork for overly broad blasphemy laws. Support for the resolution has been declining each year. This year six fewer nations than last year voted in favor of it. Angela Wu of the Washington-based Becket Fund for Religious Liberty said: "The concept of 'defamation of religions' undermines the foundations of human rights law by protecting ideas instead of people, and empowering states instead of their citizens." (See prior related posting.)