Maryland Catholic Leaders Issue Statement On Religious Liberty

Catholic Review reported yesterday on a lengthy statement on free exercise of religion signed by Archbishop Donald Cardinal Wuerl, Archbishop Edwin O'Brien and Bishop W. Francis Malooly-- the heads of the dioceses that encompass the state of Maryland. (Full text of statement.) The document reviews the history of free exercise, and the threats to religious liberty that are of concern to the Catholic Church.

Polish Political Party Wants Cross Removed From Parliament

BBC News yesterday reported that in Poland, the Palikot Movement-- the third largest party in parliament-- has filed a formal request with the speaker of the parliament to remove the cross that hangs in the Sejm, the lower house of parliament.  In making the controversial request, the party urged: "The Republic of Poland is a secular state whose authorities ... should remain impartial on religion and philosophical matters." Palikot has been highly critical of the Catholic Church's involvement in Poland's government. (See prior related posting.)

Christmas Tree Promotion Order Withdrawn After It Is Panned As A Tax On Christmas Trees

The Washington Post yesterday reviewed details of the one of the first salvos in this year's "Christmas wars." At the urging of an industry group representing producers and importers of fresh cut Christmas trees, the Department of Agriculture published in the Federal Register this week an order under the Commodity Promotion, Research, and Information Act of 1996 establishing a national Christmas Tree Promotion Board.  Rules promulgated by the order assess a fee of fifteen cents per Christmas tree on producers and importers, with the proceeds being used by the Christmas Tree Promotion Board to urge consumers to buy fresh cut, rather than artificial, trees. The order quickly began being characterized on conservative Internet sites as an Obama administration tax on Christmas trees. (See The Foundry.) Ilya Shapiro writing at Cato@Liberty opined: "there are obvious Free Exercise and Equal Protection issues here. That is, unless we consider Christmas trees to be wholly secular, this is an obvious burden on the free exercise of Christianity, and one that no other religion faces." By late yesterday, Fox News reported that a White House spokesman said that the program is being withdrawn.

USCIRF Issues Study On Education and Religious Discrimination In Pakistan

The U.S. Commission on International Religious Freedom yesterday issued a 139-page study (full text) titled Connecting the Dots: Education and Religious Discrimination in Pakistan-- A Study of Public Schools and Madrassas. As summarized by USCIRF release on the report, the study found:

• Public school textbooks used by all children often had a strong Islamic orientation, and Pakistan’s religious minorities were referenced derogatorily or omitted altogether;
• Hindus were depicted in especially negative terms, and references to Christians were often inaccurate and offensive;
• Public school and madrassa teachers had limited awareness or understanding of religious minorities and their beliefs, and were divided on whether religious minorities were citizens;
• Teachers often expressed very negative views about Ahmadis, Christians, and Jews, and successfully transmitted these biases to their students;
• Interviewees’ expressions of tolerance often were intermixed with neutral and intolerant comments, leaving some room for improvement.

Dresser Rand Settles Religious Accommodation Suit By EEOC

The EEOC announced Tuesday a settlement in a religious discrimination suit that had been filed in federal court in New York against equipment manufacturer Dresser Rand. Harry Davis, a Jehovah's Witness employed by the company, refused for religious reasons to work on weapons of war-- specifically he refused to work on a part for a submarine. The company refused his request that he be transferred to work on a different piece of equipment, and then fired him. Under the consent decree, which still requires court approval, Dresser Rand agreed to pay Davis $110,000. It has also changed its EEO policy, will conduct anti-discrimination training and post notices regarding anti-discrimination laws.

British Court Holds That Bishop May Be Vicariously Liable For Sex Abuse By Priest

Yesterday's Irish Examiner reports that a judge in Britain's High Court of Justice has ruled that the nature of the relationship between a priest and the Catholic Church is one that can give rise to vicarious liability of the diocesan bishop for sexual abuse committed by the priest.  In JGE v. English Province of Our Lady of Charity, (High Ct. QB Div, Nov. 8, 2011), Mr. Justice MacDuff wrote:

I am satisfied, as I have already noted, that the relationship between Father Baldwin and the Defendants was significantly different from a contract of employment; no real element of control or supervision, no wages, no formal contract and so on. But are those differences such that the Defendants should not be made responsible for the tortious acts of the priest acting within the course of his ministry? There are, it seems to me, crucial features which should be recognised. Father Baldwin was appointed by and on behalf of the Defendants. He was so appointed in order to do their work; to undertake the ministry on behalf of the Defendants for the benefit of the church. He was given the full authority of the Defendants to fulfil that role. He was provided with the premises, the pulpit and the clerical robes. He was directed into the community with that full authority and was given free rein to act as representative of the church. He had been trained and ordained for that purpose. He had immense power handed to him by the Defendants. It was they who appointed him to the position of trust which (if the allegations be proved) he so abused....

In this case, the empowerment and the granting of authority to Father Baldwin to pursue the activity on behalf of the enterprise are the major factors. In my judgment, whether or not the relationship may be regarded as “akin to employment” the principal features of the relationship dictate that the Defendants should be held responsible for the actions which they initiated by the appointment and all that went with it.

However defendant was granted leave to appeal.

Arkansas Will Beef Up Inspection of State-Subsidized Pre-Schools On Church-State Issues

Following up on a complaint last week by Americans United, the Arkansas Department of Human Services says it will change its inspection checklist for pre-kindergarten schools funded under the Arkansas Better Chance (ABC) program to assure compliance with church-state restrictions.  The Arkansas News reported Monday that an inspector who visited the Growing God's Kingdom pre-school in West Fork, Arkansas found religious pictures and posters, and a schedule that includes Bible study and Bible song sessions. The school received $534,000 in ABC funds this year, and over $1 million since 2005. Meanwhile, according to a report by the Fort Smith Times Record, two state legislators who own state-funded pre-schools that include religion in the curriculum contend that teaching religion is permissible so long as it is done outside the 7.5 hours of instruction funded by the ABC program. [Thanks to Don Byrd for the lead.]

Texas Allows Gun Safety Instructor To Continue After Non-Discrimination Pledge

The Syracuse Post-Standard reported yesterday that the Texas Department of Public Safety will not revoke the certification of gun instructor Crockett Keller as a qualified hand gun instructor now that Keller has agreed not to discriminate in the future. Keller offers certified courses for individuals applying for a license to carry a concealed handgun.  Keller became the center of controversy after he included as part of a radio commercial for his gun safety class a disclaimer that said:

If you are a socialist liberal and/or voted for the current campaigner-in-chief, please do not take this class. You’ve already proven that you cannot make a knowledgeable and prudent decision as required under the law. Also, if you are a non-Christian Arab or Muslim, I will not teach you the class. Once again, with no shame, I am Crockett Keller.

Mississippi Personhood Amendment Defeated

Mississippi's proposed Personhood Amendment failed at the polls yesterday. According to the Jackson Clarion-Ledger, with 96% of the polls reporting, 58% voted against and 42% voted in favor of the proposal.  CBS News says that concern over the amendment's effect on fertility treatments was a major factor in its defeat. The proposed amendment defined a "person" as "every human being from the moment of fertilization, cloning, or the functional equivalent thereof." (See prior related posting.)

Controversial Navy Chaplain Sues For Reinstatement and Back Pay

Former Navy chaplain Gordon James Klingenschmitt, who has been in a long-running battle with the military over regulation requiring chaplains to deliver inclusive prayers at military events other than religious services, has filed suit in the U.S. Court of Federal Claims seeking back pay, restoration to active duty and removal of a court martial conviction and a letter of reprimand from his service record.  Klingenschmitt insisted he had a right to pray "in Jesus name" whenever he led prayers. (See prior related posting.) The complaint (full text) in Klingenschmitt v. United States, (Ct. Fed. Cl., filed 11/1/2011), contends that the various actions taken against him violate the Religious Freedom Restoration Act. World Net Daily reported on the lawsuit yesterday.

D.C. Circuit Upholds Health Care Reform, Giving Short Shrift To Religious Freedom Argument

The D.C. Circuit Court of Appeals today upheld the constitutionality of the Affordable Care Act, last year's federal health care reform law.  In Seven-Sky v. Holder, (DC Cir., Nov. 8, 2011), the majority opinion, the concurrence and the dissent focused virtually all of their attention on (1) whether the Anti-Injunction Act bars a pre-enforcement challenge to the individual mandate; and (2) whether Congress had authority under the commerce clause to impose the mandate.  The majority opinion, written by Judge Silberman, found that the Anti-Injunction Act is not a bar to the lawsuit and that Congress acted within its commerce clause powers. Judge Edwards filed a short concurring opinion. Judge Kavanaugh dissented concluding that the Anti-Injunction Act creates a jurisdictional bar to the court deciding the case at this time.

In the case, plaintiffs also invoked the Religious Freedom Restoration Act, arguing that the requirement they purchase health insurance conflicts with their Christian faith by insisting they perform an act that implies they doubt God's ability to provide for their health. The district court (see prior posting) spent 5 pages rejecting that argument. In today's opinion, Judge Silberman disposed of the RFRA argument in a footnote (fn. 4):

We affirm the dismissal of appellants’ Religious Freedom Restoration Act claim, because we agree with the district court’s reasoning that appellants failed to allege facts showing that the mandate will substantially burden their religious exercise.

The White House blog noted the decision.

Lastest Flap Over Prayer Surrounds Proposed Plaque At World War II Memorial

Another battle over government recognition of religion appears to be developing in connection with H.R. 2070, the World War II Memorial Prayer Act of 2011.  The proposed law would add a plaque with Franklin Roosevelt's D-Day Prayer to the World War II Memorial in Washington.  At a hearing on the bill held last week, Robert Abbey, director of the Bureau of Land Management, testified (full text of prepared statement) in part:

The Commemorative Works Act specifically states that a new commemorative work shall be located so that it does not encroach upon an existing one. It is not a judgment as to the merit of this new commemoration, simply that altering the Memorial in this way, as proposed in H.R. 2070, will necessarily dilute this elegant memorial’s central message and its ability to clearly convey that message to move, educate, and inspire its many visitors. The Department strongly believes that the World War II Memorial, as designed, accomplishes its legislated purpose to honor the members of the Armed Forces who served in World War II and to commemorate the participation of the United States in that conflict. It should not be altered in the manner suggested by H.R. 2070.

He added that the National Capital Memorial Advisory Commission and the American Battle Monuments Commission agreed with BLM's position.

Now, however, according to Fox News last week, "Republican lawmakers and conservative activists are expressing outrage" at BLM's opposition.  Rep. Bill Johnson, sponsor of the legislation, said: "For there to be objections to demonstrating a faith in God at critical points in our nation's history -- particularly D-Day -- boggles my mind." And Tony Perkins, president of the Family Research Council, said: "This is further evidence that the administration has created an environment that is hostile towards American history -- but in particular towards Christianity."

Court Finds Employee Was Offered Religious Accommodation

In Antoine v. First Student, Inc., (ED LA, Nov. 4, 2011), a Louisiana federal magistrate judge held that a company which operated school buses for Jefferson Parish, Louisiana had attempted to reasonably accommodate the religious needs of a Seventh Day Adventist bus driver.  The court rejected plaintiff's Title VII religious discrimination claim, finding that the company allowed him to swap his Friday afternoon route with a volunteer, or find a volunteer to cover the route. The company claimed that other alternatives would have violated its collective bargaining agreement. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

New Tunisian Constitution Will Not Call For Shariah Law

In Tunisia, Rachid Ghannouchi, head of the moderate Islamic Ennahda party that won 40% of the seats in Parliament in last month's elections, says that the country's new constitution will not make reference to Shariah or Islamic law.  According to Bikya Masr yesterday, all parties have agreed to keep the old constitution's Art. 1 that provides: "Tunisia is a free, independent and sovereign state. Its religion is Islam, its language is Arabic and its type of government is the Republic." However there will be no other mention of religion in order to maintain a secular interpretation of law in the country. (See prior related posting.)

Supreme Court Refuses Review In Jehovah's Witness Challenge To Controlled Access Law

The Supreme Court today denied certiorari in Watchtower Bible and Tract Society of New York, Inc. v. Segardia de Jesus, (Docket No. 11-26, cert. denied 11-7-2011). (Order List). In the case, the 1st Circuit dismissed a facial challenge brought by the Jehovah's Witnesses to Puerto Rico's Controlled Access Law, but vacated the trial court's order denying injunctive and declaratory relief on an "as applied" challenge to the law. The challenged statute -- a crime control measure-- authorizes municipalities to grant permits to neighborhood homeowners' associations (urbanizations) so they can control vehicular and pedestrian access to the neighborhood. The Jehovah's Witnesses say this has prevented them from entering neighborhoods to engage in religious proselytizing. (See prior posting.)

Hospital Sues Over Whether It Is A Public Agency-- Church-State Implications

As previously reported, church-state questions are being raised in Kentucky regarding the agreement for the proposed merger of Louisville's University Hospital with two other Kentucky health care systems to create a state-wide network that would be controlled by Catholic Health Initiatives. All of the participating hospitals have agreed to follow Catholic health care policies. The University claims that the hospital is not a public institution so that the church-state issue is irrelevant. Now, according to yesterday's Louisville Courier-Journal, a related state lawsuit has been filed that will bear on that question.  The ACLU and various news organizations have requested documents related to the merger under the state's open records law, and the attorney general last month ruled that the hospital is a public entity that is subject to that law. Now University Hospital has sued to avoid turning over records on the ground that it is not a public agency subject to the open records requirements, but instead is a private non-profit corporation.

Church Violates Fair Housing Act In Trying To Set Up Sex Offender Program

Florida's sexual offender law, FL Stat Sec. 947.1405(7)(a)(2), provides that certain sex offenders who have been conditionally released from prison may not live, among other places, within 1000 feet of a public school bus stop. Matthew25Ministries, a prison ministry that has developed an after-care program for those charged with sex crimes, leased all the units in Pelican Lake Village apartments, a Palm Beach County (FL) apartment complex, intending to sublease them to sex offenders as they became available. However it could not do so while a school bus stop was located at the site.  The Ministry was unsuccessful in getting the school bus stop moved. Therefore it told families with children living in the apartment complex that they would be required to move out. Presumably that would eliminate the bus stop. The affected families filed suit in federal district court charging violations of the federal Fair Housing Act (42 USC 3604) that prohibits discrimination in rentals on the basis of familial status. In two opinions (full text 1,  full text 2) in Whyte v. Alston Management, Inc., (SD FL, Nov. 1, 2011), a Florida federal district court held that Matthew25Ministries, as well as the real estate management companies involved and their employees, are liable for violations of 42 USC 3604(a)-(c). Last Friday's Palm Beach Post reports on the decisions.

Recent Articles of Interest

From SSRN:

• Ruth E. Gavison, The Law of Return at Sixty Years: History, Ideology, Justification, (October 31, 2011).
• William J. Haun, A Standard for Salvation: Evaluating 'Hybrid Rights' Free-Exercise Claims, (November 1, 2011).
• Richard Albert, The Constitutional Politics of the Establishment Clause, (Chicago-Kent Law Review, Vol. 87, No. 1, 2012).
• Wendy S. Goffe, An Estate Planners Roadmap to the Valley of the Shadow of Death: Health Care Directives from Religious Perspectives. Fear No Evil, (November 3, 2011).
• Matthew Hood, John R. Nofsinger and Abhishek Varma, Conservation, Discrimination, and Salvation: Investors' Social Concerns in the Stock Market, (November 4, 2011).

From SmartCILP:

• Helen M. Alvare, Bishops v. Nuns in Jeeps? Why a Facially "Intra-Catholic" Health Care Dispute Matters, [Abstract], 25 Notre Dame Journal of Law, Ethics and Public Policy 563-591 (2011).
• Bishop Thomas John Paprocki, Caring for the Sick: The Catholic Contribution and Its Relevance, [Abstract], 25 Notre Dame Journal of Law, Ethics and Public Policy 447-461 (2011).
• Redeeming Law: Christian Calling in the Legal Profession. Keynote addresses by J. Budziszewski and Michael P. Schutt; panel participation with Janet Epp Buckingham, Roger Alford and Brad Jacob, moderators; Teresa S. Collett, Santiago Legarre, Gabriel Mora-Restrepo, Ken Starr, Zhang Shoudong, Kwame Frimpong, Li-Ann Thio and Vilma C. Balmaceda, panelists. 7 Regent Journal of International Law 1-163 (2009).

Trade Group Wants Court To Bar Utah Legislators From Considering Mormon Views In Enacting Liquor Laws

Utah's Senate Bill 314, signed by the governor last March, imposes new limitations on liquor licenses and the sale of alcoholic beverages. Among other things, it eliminates discount pricing of alcoholic beverages offered by social clubs and links the issuance of liquor licenses to social clubs to both population quotas and the number of public safety officers employed by the State of Utah. As reported by Fox News last week, in June the Utah Hospitality Association filed a federal lawsuit challenging the new law on antitrust grounds. An amended complaint (full text) was filed on Oct. 27 in Utah Hospitality Assoc. v. Herbert, (D UT), now also seeking:

a declaration that the legislators of the State of Utah shall not consult with, or consider the opinions of, the Church of Jesus Christ of Latter Day Saints when making alcohol policies during future legislative sessions [, and] ... a declaration that the legislators consultation with the Church of Jesus Christ of Latter Day Saints when making alcohol policies during the 2011 legislative session was unconstitutional.

Recent Prisoner Free Exercise Cases

In Olivier v. Scribner, 2011 U.S. Dist. LEXIS 125755 (SD CA, Oct. 31, 2011), a California federal district court dismissed an inmate's complaint that he was not provided a kosher diet. Plaintiff failed to allege sufficient facts to support a claim under RLUIPA or the 1st Amendment.

In Funtanilla v. Williams, 2011 U.S. Dist. LEXIS 126238 (ED CA, Oct. 31, 2011), a California federal magistrate judge allowed a Seventh Day Adventist, incarcerated at a substance abuse and treatment facility, to proceed with his complaint that he was not permitted to post a copy of the 10 Commandments on his door. However the court dismissed, with leave to file an amended complaint, plaintiff's claims that his rights were violated when he was not furnished a pastor or access to group services or provided with food at his cell on the Sabbath.

In Saif'ullah v. Haviland, 2011 U.S. Dist. LEXIS 126249 (ED CA, Oct. 31, 2011), a California federal magistrate judge held that a Muslim inmate failed to state a habeas corpus claim in his complaint that his parole suitability hearing was held during Ramadan and in his complaints he was not given his cup when the Ramadan daily fast was over and was denied an evening meal on one occasion.

In Whitfield v. Illinois Department of Corrections, 2011 U.S. Dist. LEXIS 126475 (SD IL, Nov. 2, 2011), an Illinois federal magistrate judge, while dismissing a number of claims, allowed an inmate (whose religion was not specified in the opinion) to proceed with individual capacity damage claims based on alleged denial of religious meals, unequal allocation of funds for religious programs and services, forcing plaintiff to get a TB shot on the Sabbath, and inadequate training of personnel.

In Gregorio v. Aviles, 2011 U.S. Dist. LEXIS 127155 (D NJ, Nov. 3, 2011), a New Jersey federal district court dismissed, with leave to amend, an inmate's claim that his 1st Amendment and RLUIPA rights were violated because his portion of the prison was not allowed to attend religious services.