Religious Employer Exception Added To Required Women's Preventive Care Coverage

A memo from McDermott, Will and Emery reports that the recently issued federal guidelines on preventive health care services for women have been amended to provide an exemption for religious employers.  The guidelines under the Affordable Care Act require that various preventive services for women be covered fully, without co-payment, co-insurance or deductibles. Among the covered items are contraceptive services. However, pursuant to new authority granted to it in a release from the Department of Labor, Treasury and HHS issued on July 28 (full text), the Health Resources and Services Administration has exempted various religious employers from the required contraceptive coverage. [Thanks to Steven H. Sholk for the lead.]

UPDATE: The Heritage Foundation (Aug. 2) claims that the definition of religious employer in the new exemption is too narrow.

Mexico Electoral Commission Orders Fines Against Catholic Archdiocese

Time reported yesterday on a decision handed down last month by Mexico's Federal Electoral Institute (IFE).  It ordered the country's Interior Minister to impose substantial fines on Mexico City's Catholic archdiocese and its spokesman Rev. Hugo Valdemar for violating provisions of the Religious Associations Law that ban religious organizations from publicly endorsing or opposing political candidates.  Earlier this year, the archdiocese urged voters to not vote for political parties that support legalized abortion or gay marriage.

Australian State Charges Worldwide Jehovah's Witness Organizations Under Working With Children Act

JW News reported last week that the Australian state of Victoria has filed criminal charges against the entire worldwide corporate and religious hierarchy of the Jehovah's Witness church, claiming failure to comply with Victoria's Working With Children Act 2005. The Act requires a Working With Children Check on individuals who are engaged in child-related work. It is claimed that The Governing Body of Jehovah’s Witnesses and the Watch Tower Society were notified of their obligation to comply with the law and were offered assistance in doing so, but they refused. Five separate Jehovah's Witness organizations were each charged with 7 criminal violations. Each charge carries a fine of up to AUS$144,000 ($157,766 US).

Alabama Clergy Sue Claiming Immigration Law Infringes Churches' Free Exercise Rights

WSFA reports that a federal lawsuit challenging Alabama's new immigration law was filed yesterday by leaders of the Episcopal, Methodist and Roman Catholic churches in the state.  The suit claims that the law (full text) which goes into effect in September infringes plaintiffs' right to the free exercise of religion by barring members of faith communities from carrying out their social ministries to help aliens obtain food, clothing, shelter and worship.  Sec. 13 of the statute prohibits any person, among other things, from encouraging an alien to reside in the state in reckless disregard of the fact that the alien's presence will be in violation of federal law.

Jeffs Seeks Judge's Recusal Based on Revelation From God

In San Angelo, Texas, the sexual assault trial of FLDS leader Warren Jeffs continues.  Yesterday, for the third time, Jeffs attempted to disqualify Judge Barbara Walther.  As reported by the Deseret News, this time Jeffs based his motion on what he said was a revelation from the Lord on Sunday.  Addressing himself directly to the judge, Jeffs said: "I, your lord, say to you, I shall bring to light your evil intent now, before all people, to destroy my Church on earth."  Jeffs' recusal motion contained an appendix containing what he said were revelations to the 19th century Mormon leader Joseph Smith and 29 Orders from the Lord.

Obama Sends Ramadan Greetings To Muslims Around the World

The White House issued a statement (full text) today from President Obama sending his and Michelle Obama's best wishes to Muslim communities in the United States and around the world as Ramadan begins. The statement reads, in part:

For so many Muslims around the world, Ramadan is also a time of deep reflection and sacrifice. As in other faiths, fasting is used to increase spirituality, discipline, and consciousness of God's mercy. It is also a reminder of the importance of reaching out to those less fortunate. The heartbreaking accounts of lost lives and the images of families and children in Somalia and the Horn of Africa struggling to survive remind us of our common humanity and compel us to act. Now is the time for nations and peoples to come together to avert an even worse catastrophe by offering support and assistance to on-going relief efforts.

In the statement, the President also said he is looking forward to again this year hosting an Iftar dinner at the White House.

Ramadan Begins Today

Ramadan begins today. The Wall Street Journal reports on the special difficulties for Muslims when the fasting period comes during long summer days as it does this year. Various government leaders around the world have issued greetings to Muslims for Ramadan, including Australia's Foreign Minister Kevin Rudd (AP of Pakistan), Israel's Prime Minister Benjamin Netanyahu (Arutz Sheva), and rulers of the United Arab Emirates (Gulf News).

Egyptian Rally Presses For Islamic Law In New Constitution

The Wall Street Journal over the week end reported on Friday's rally in Cairo, Egypt by tens of thousands seeking the establishment of Islamic law in the country. Islamists are concerned over last week's supra-constitutional principles issued by the National Council as guidance for a constitutional congress that will be appointed by Parliament in November, after elections.  The principles are designed to assure that Egypt's new constitution will protect individual rights, particularly for women and religious minorities; and that the constitutional congress will include a cross-section political interests, including legal experts, so that Islamists do not dominate it.

Recent Articles of Interest

From SSRN:

• Gerard V. Bradley, We Hold These Truths and the Problem of Public Morality, (Catholic Social Science Review, Vol. 16, pp. 123-132, 2011).
• Luke Beck, The Constitutional Prohibition on Religious Tests, (Melbourne Univeristy Law Review, Vol. 35, No. 2, 2011).
• Michael Watson, Church Property and Disaffiliation Litigation - The Constitutional Dimension, (July 23, 2011).
• Pedro C. Magalhães, Explaining the Constitutionalisation of Social Rights: Portuguese Hypotheses and a Crossnational Test, (December 30, 2010).
• Julia Yael Alfandari, Joanna Dawn Baker, and Regula Amnah Atteya, Defamation of Religions: International Developments and Challenges on the Ground: SOAS International Human Rights Clinic Project, (SOAS School of Law Research Paper No. 09/2011).
• Vinicius Marinho, Constitutional Prophecy, (July 26, 2011).
• Bernard M. Levinson, Esarhaddon’s Succession Treaty as the Source for the Canon Formula in Deuteronomy 13:1, Journal of the American Oriental Society, Vol. 130, No. 3, pp. 337-347, 2010).
• Daniel Ungar, Copyright Enforcement by Praise and Curse: The Colourful Development of Jewish Intellectual Property, (March 1, 2011).
• Lynn D. Wardle, Rights of Conscience vs. Peer-Driven Medical Ethics: ACOG and Abortion, Life and Learning XVIII, (Proceedings of the Eighteenth University Faculty for Life Conference at Marquette University 2008, Joseph W. Koterski, S.J., ed., University Faculty for Life, 2011).
• Michael Heise and Gregory C. Sisk, Religion, Schools, and Judicial Decision Making: An Empirical Perspective, (July 29, 2011).
• Lynn D. Wardle, Protection of Healthcare Providers’ Rights of Conscience in American Law: Present, Past, and Future, (Ave Maria Law Review, Vol. 9, No. 1, 2010).
• Richard W. Garnett, “Things That are Not Caesar’s”: The Story of Kedroff v. St. Nicholas Cathedral, (First Amendment Stories, Richard W. Garnett, Andrew Koppelman, eds., Foundation Press 2011).

From SmartCILP:

• William N. Eskridge, Jr., Noah's Curse: How Religion Often Conflates Status, Belief, and Conduct To Resist Antidiscrimination Norms, [Abstract], 45 Georgia Law Review 657-720 (2011).
• Catherine M.A. McCauliff, Jacques Maritan's Embrace of Religious Pluralism and the Declaration on Religious Freedom, 41 Seton Hall Law Review 593-624 (2011).
• Richard H. Weisberg, Compromise and Constitutionalism: Levinson is to Mr. Justice "Isaiah" as St. Paul Was To the Prophet Isaiah, [Abstract] 38 Pepperdine Law Review 925-935 (2011).
• Fournier, Pascal and Anna Dekker. Book review. (Reviewing Legal Practice and Cultural Diversity, edited by Ralph Grillo, et al.) 19 American University Journal of Gender, Social Policy and the Law 755-764 (2011).
• Thomas J. Molony, Charity, Truth, and Corporate Governance, 56 Loyola Law Review 825-868 (2010).
• Dian Abdul Hamed Shah and Mohd Azizuddin Mohd Sani, Freedom of Religion in Malaysia: A Tangled Web of Legal, Political, and Social Issues, 36 North Carolina Journal of International and Commercial Regulation 647-688 (2011).
• Olivia St. Clair, Building Backwards: Helping Heal Iraq Through Women's Rights, 19 Texas Journal of Women and Law 81-98 (2010).

Air Force Uses Christian Just War Theory As Part of Ethics Training

Controversial reporter Jason Leopold in a posting Wednesday on Truthout  says that U.S. Air Force training for missile officers includes a mandatory session led by chaplains discussing St. Augustine's Just War Theory.  He links to an extensive Power Point presentation  that includes slides asking "Can a person of faith fight in a war?" and "Can war be just?"  Those questions are answered in part with Biblical references. Mikey Weinstein, president of the Military Religious Freedom Foundation, says he has been contacted by Air Force officers who want to have the Christian themes removed from the nuclear weapons ethics training course.

UPDATE: Truthout reported yesterday the Air Force has announced that the Nuclear Ethics and Nuclear Warfare module has been removed from the training curriculum after the publication of Truthout's earlier report on it.

Chapter 11 Plan For Wilmington Diocese Confirmed By Delaware Bankruptcy Court

On July 28, the federal bankruptcy court for the District of Delaware issued an order confirming the Chapter 11 Plan of Reorganization for the Catholic Diocese of Wilmington. The full text of the Plan of Reorganization, Disclosure Statement, the court's finding and confirmation order, and related documents are available online on the Case Administration Website.  Delmarva Now reports that:

Claims related to the religious orders are not part of the diocese plan, but the diocese and all of the parishes named as defendants in the suits will be free of any further litigation when the negotiated releases are signed and payments to survivors made....

Among the nonmonetary terms of the plan are requirements that the diocese release church files on abuser priests and agree to adopt policies and procedures to prevent abuse in the future.... Under the terms of the plan, the diocese will draw on funds from insurance policies, the Catholic Foundation and other non-diocesan Catholic entities to cover the claims. It also has agreed to pump millions of dollars into its underfunded pension plan for lay employees, a situation revealed when the diocese was forced to open its books to the court.

Nine priests and former priests will be excluded from pension and benefit provisions they might have received from the diocese.

The diocese's Bishop W. Francis Malooly issued a statement on Thursday welcoming the court's move. He said in part:

It is my hope and prayer that this plan will give survivors of clergy sexual abuse another means toward the healing that they so need and deserve, and enable us to live up to our commitments to our lay employees and creditors.

Contemplative Community Is Not Use For "Religious Assembly" Under Zoning Law

In Jennings v. Zoning Board of Adjustment of City of Pittsburgh, (PA Commonwlth. Ct., July 28, 2011), a Pennsylvania appellate court upheld a finding by Pittsburgh's Zoning Board of Adjustment that proposed use of a property for a contemplative community in a communal group living arrangement should be classified as a "multi-suite residential" use and not use for "religious assembly."  The only religious component would be communal prayer sessions for the residents held within the house for approximately 15-20 minutes, twice each day, and possibly weekly spiritual training by the program manager. There would be no designated area for prayer and no public worship on the premises.

Recent Prisoner Free Exercise Cases

In Boone v. Morgan, 2011 U.S. Dist. LEXIS 81542 (D MD, July 26, 2011), a Maryland federal district court rejected a Muslim inmate's complaint that his rights were infringed by prison policy that allowed inmates in disciplinary segregation to wear Kufis made of solid material, but not knit kufis, and which barred prayer rugs in disciplinary segregation.

In Epps v. Grannis, 2011 U.S. Dist. LEXIS 81915 (SD CA, July 26, 2011), a California federal magistrate judge denied a preliminary injunction to a Muslim inmate who sought to be placed on the prison's kosher diet program, and who complained about other infringements on his religious practice.

In Castle v. Hedgpeth, 2011 U.S. Dist. LEXIS 82289 (ED CA, July 26, 2011), a California federal magistrate judge recommended that a Muslim inmate's challenge to prison rules barring inmates from possessing prayer oils in their cells be dismissed on qualified immunity grounds. The temporary ban was imposed after a chaplain was accused of smuggling in contraband in prayer oil.

In Cookson v. Commissioner, Maine Department of Corrections, 2011 U.S. Dist. LEXIS 82393 (D ME, July 26, 2011), an inmate sued the state Commissioner of Corrections claiming that he discriminatorily applied state policy in refusing to recognize Satanism as a religion in the prison system.  While the litigation was pending, a new Commissioner of Corrections took over. A Maine federal magistrate judge recommended that the suit against the former commissioner (which sought only prospective relief) be dismissed, with the possibility of proceeding against the new commissioner left open, depending on his response to plaintiff's request for recognition of Satanism.

In Muhammad's Temple of Islam v. Pennsylvania Department of Corrections, (Commonwlth. Ct. PA, July 26, 2011), a Pennsylvania appellate court  rejected a complaint by a Nation of Islam inmate that prison authorities ended their separate recognition of MTI as a faith group (with separate religious services) and left adherents only the options of attending Sunni religious services or attending no congregate religious services.
[Updated]

NYT Traces Forces Behind Anti-Shariah Movement In U.S.

Today's New York Times runs a front-page article titled Behind an Anti-Shariah Push, tracing the forces behind the move in state legislatures to enact anti-Shariah laws. The Times says:

A confluence of factors has fueled the anti-Shariah movement, most notably the controversy over the proposed Islamic center near ground zero in New York, concerns about homegrown terrorism and the rise of the Tea Party. But the campaign’s air of grass-roots spontaneity, which has been carefully promoted by advocates, shrouds its more deliberate origins.

In fact, it is the product of an orchestrated drive that began five years ago in Crown Heights, Brooklyn, in the office of a little-known lawyer, David Yerushalmi, a 56-year-old Hasidic Jew with a history of controversial statements about race, immigration and Islam. Despite his lack of formal training in Islamic law, Mr. Yerushalmi has come to exercise a striking influence over American public discourse about Shariah.

Working with a cadre of conservative public-policy institutes and former military and intelligence officials, Mr. Yerushalmi has written privately financed reports, filed lawsuits against the government and drafted the model legislation that recently swept through the country — all with the effect of casting Shariah as one of the greatest threats to American freedom since the cold war.

The entire article is worth a read.

9th Circuit Rejects RFRA Defense In Marijuana Farm Owner's Conviction

In United States v. Lepp, (9th Cir., July 27, 2011), the U.S. 9th Circuit Court of Appeals affirmed the conviction and ten year mandatory minimum sentence imposed on Eddy Lepp who had been charged with running a large marijuana farm known as "Eddie's Medicinal Gardens and Ministry of the Rastafari." (See prior posting.) The court held:

The district court did not err in denying Lepp’s Motion in Limine seeking to present a religious defense under the Religious Freedom Restoration Act of 1993 (RFRA). Applying the criminal laws prohibiting possession and manufacture of marijuana to Lepp is the least restrictive means of furthering the government’s compelling interest in preventing diversion of sacramental marijuana to nonreligious users....

Nor did the district court abuse its discretion by denying Lepp an evidentiary hearing on his RFRA Motion. One of the facts Lepp sought to establish at such a hearing—that his religious beliefs were sincerely held—had already been accepted as true by the court. As for the other fact he sought to prove, ... the court stated that its ruling would be the same “regardless of whether or not” there were 2,500 adherents in Lepp’s congregation.... 

Hawaii Daily News reports on the decision.

China Takes New Steps Against House Churches

Compass Direct News reports that Chinese authorities this week sentenced Shi Enhao, deputy leader of the Chinese House Church Alliance, to two years of  "re-education through labor" on charges of organizing and holding illegal religious meetings. Authorities have also ordered Shi's church members to stop meeting for worship, and have confiscated musical instruments, choir robes and church donations.

Earlier this week, the Wall Street Journal reported on growing tensions between the Chinese government and illegal underground churches. It said in part:

For the first time, China's illegal underground churches, whose members are estimated in the tens of millions, are mounting a unified and increasingly organized push for legal recognition.

The government, fearing that faith in God will soon subvert faith in the party, is responding with a stepped up campaign against the churches and the networks uniting them.

The struggle is shaping up as the tensest standoff over religious freedom in China since a brutal crackdown on adherents of Falun Gong in 1999 after they made similar calls for official acceptance.

New Interpretation of Covenant on Civil and Political Rights Rejects Blasphemy Laws

The United Nations Human Rights Committee is the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights.  This week, after two years of debate and consultation, the Committee finalized General Comment No. 34, an authoritative interpretation of the freedoms of opinion and expression guaranteed by Article 19 of the Covenant. (Press release.) This is the first General Comment issued on these provisions since 1983.  Even though Article 18 of the Covenant protects freedom of thought, conscience and religion, this General Comment finds various protections of religious expression inherent in Article 19 as well.  It provides that freedom of opinion includes opinion of a moral or religious nature (Par. 9), and  freedom of expression includes religious discourse. (Par. 11). The General Comment also finds that generally blasphemy laws would violate the Covenant:

48. Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant, except in the specific circumstances envisaged in article 20, paragraph 2 [advocacy of religious hatred that constitutes incitement], of the Covenant. Such prohibitions must also comply with the strict requirements of article 19, paragraph 3, as well as such articles as 2, 5, 17, 18 and 26. Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over nonbelievers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.

Reuters reports on the release of the General Comment.

EEOC Sues Taco Bell Chain For Refusing To Accommodate Nazirite's Long Hair

On Thursday, the EEOC announced that it had filed suit against a company that operates a chain of Taco Bell restaurants in eastern North Carolina for failing to reasonably accommodate a former employee's religious beliefs.  In EEOC v. Family Foods, Inc., (ED NC, filed 7/28/2011), the EEOC charged that the company in 2010 informed employee Christopher Abby, who had worked for the company for six years, that he now needed to cut his hair to comply with the company's grooming policy. When he refused, he was fired. Abby is a practicing Nazirite and his religious beliefs preclude him from cutting his hair. [Thanks to Steven H. Sholk for the lead.]

Divided 4th Circuit Says County's Invocation Policy Violates Establishment Clause

In Joyner v. Forsyth County, North Carolina, (4th Cir., July 29, 2011), the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that  the prayer policy of a county commission violated the Establishment Clause even though the policy was neutral on its face. All congregations in the community were invited to send a religious leader to lead an invocation at one of the commission meetings. As implemented, however, all those who delivered prayers were Christian, nearly 80% of the prayers delivered mentioned Jesus, and none mentioned any other deity. This policy "resulted in sectarian invocations meeting after meeting that advanced Christianity..."  The majority added:

This is not to say that the Board must abandon the practice of legislative prayer. Nor do we wish to set forth some sort of template for an ideal legislative prayer policy....  The bar for Forsyth County is hardly a high one. Public institutions throughout this country manage to regularly commence proceedings with invocations that provide all the salutary benefits of legislative prayer without the divisive drawbacks of sectarianism.... And religious leaders throughout this country have offered moving prayers on multitudinous occasions that have managed not to hurt the adherents of different faiths.

Judge Niemeyer, dissented, arguing that the county's policy is completely neutral and proactively inclusive, allowing religious leaders to deliver invocations they compose. He insisted: "The Establishment Clause does not require the County to forbid invocational speakers from making sectarian references in their prayers." Summarizing his concerns, the dissent wrote:

The majority’s decree commands that every legislative prayer reference only "God" or some "nonsectarian ideal," supposedly because other appellations might offend. Thus, in a stated sensitivity to references that might identify the religion practiced by the religious leader, the majority has dared to step in and regulate the language of prayer—the sacred dialogue between humankind and God. Such a decision treats prayer agnostically; reduces it to civil nicety; [and] hardly accommodates the Supreme Court’s jurisprudence in Marsh v. Chambers....

(See prior related posting.) [Thanks to Rob Luther for the lead.]

Jeffs Trial Begins With Silence and Sermon From Defendant Representing Himself

The trial of Warren Jeffs, leader of the polygamous FLDS Church, proceeds with unusual twists. As previously reported, Jeffs dismissed his legal team and asked to represent himself. (See prior posting.) As reported by ABC News, Judge Walther urged Jeffs not to dismiss his impressive legal team; however she ultimately permitted Jeffs to represent himself and refused to delay the opening of trial.  The judge also ordered Jeffs' counsel to remain on as side counsel in case Jeffs again changes his mind.

As the trial began, Jeffs stared into space as the prosecutor gave his opening statement, and Jeffs declined to give his own opening statement. He remained seated and mute as the prosecution then moved ahead with presenting its case. Finally today, according to AP, Jeffs broke his silence and launched into a 55-minute sermon, saying in part:

We cannot surrender these principles based on the laws of man trying to convince us that our religion is not necessary in practice... [T]his must stop in a land of freedom if all others are to receive a similar guarantee against their freedom of religion being trampled.... We are not a fly-by-night religious society . . . We are a community of faith and principles and those principles are so sacred.... [Polygamy] is not of a sudden happening, it is of a tradition in our lives. And how can we just throw it away and say "God has not spoken?"