Amish Men Jailed After Refusing To Pay Fines For Not Displaying Orange Safety Triangles

In Graves County, Kentucky yesterday, ten Amish men, all members of the Swartzentruber Amish community, were sentenced to jail terms after they refused to pay fines that had been imposed on them for refusing to display orange reflective triangles on their horse-drawn buggies. AP reports that their sentences ranged from 3 to 13 days for fines ranging from $153 to $627. Displaying the bright orange color conflicts with the Amish men's religious beliefs.  In jail the men will wear specially dyed jumpsuits instead of the stand issue orange ones, and the county jail has agreed that mug shots of them will not be taken. The Kentucky legislature is considering a change in the law that would allow the Amish to use gray reflective tape instead of orange triangles. An appeal is pending in the Kentucky Supreme Court in a similar case. (See prior posting.)

NJ Administrative Law Judge Finds Violation For Refusal To Rent Space For Civil Union Ceremony

AP reported yesterday that a New Jersey Division of Civil Rights Administrative Law Judge has issued a proposed ruling concluding that a religious group, the Methodist-affiliated Ocean Grove Camp Meeting Association, violated the state's public accommodation anti-discrimination laws when in 2007 it refused to rent out its boardwalk pavilion to a lesbian couple to use for their civil union ceremony. The Association claimed that its freedom of religious expression would be infringed if it was forced to permit same-sex civil union ceremonies on its property.  The administrative law judge, however, concluded that the pavilion was a public space which until 2007 advertised itself as a wedding venue without any mention of religious conditions. The state Division on Civil Rights now has 45 days to decide whether to adopt, reject or modify the administrative law judge's ruling. The administrative law judge's conclusions are similar to those reached in a 2008 opinion finding probable cause to proceed in the case. (See prior posting.) The Association now apparently no longer rents out its pavilion to anyone.

New Survey Released On Mormons' Views Of Their Place In American Life

The Pew Forum on Religion and Public Life yesterday released a new survey on what Mormons think about their place in American life. The report titled Mormons in America: Certain in Their Beliefs, Uncertain of Their Place in Society comes as a Mormon is among the leading contenders for the Republican nomination for President of the United States.  According to the new report's Executive Summary:

Many Mormons feel they are misunderstood, discriminated against and not accepted by other Americans as part of mainstream society. Yet, at the same time, a majority of Mormons think that acceptance of Mormonism is rising. Overwhelmingly, they are satisfied with their lives and content with their communities. And most say they think the country is ready to elect a Mormon president.

97% of the Mormons surveyed describe Mormonism as a Christian relgion-- a view disputed by some evangelical Christians. (See prior posting.)

Court Holds Diocese Reorganization Not Subject To Property Transfer Tax

According to a January 9 press release from the Catholic Archdiocese of San Francisco, a California Superior Court judge has finalized a tentative opinion issued in November holding that the archdiocese is not liable for some $20 million in transfer taxes that had been assessed against it in connection with a reorganization  that transferred some 232 archdiocese properties to two new Catholic non-profit holding companies. Apparently the reorganization is designed to protect the properties from any future clergy abuse judgments. (See prior posting.)  According to California Catholic Daily, the court found that the transaction was merely a change in corporate form, not a transfer.

8th Circuit Dismisses Tony Alamo Ministry's Challenge To Seizure of Children

In Tony Alamo Christian Ministries v. Selig, (8th Cir., Jan. 11, 2012), the 8th Circuit dismissed on Younger v. Harris abstention grounds a challenge by Tony Alamo Christian Ministries (TACM) to the 2008 removal by state welfare authorities of minor children from the religious group's compound in Arkansas in order to protect them from abuse. (See prior posting.) TACM claimed that its 1st and 4th Amendment rights, and those of its members, were violated by the seizure of the children and the conditions imposed on parents for their return. Various state court proceedings addressing parents' constitutional claims were ongoing when TAMC filed its federal court challenge. The abstention doctrine applies to TACM because its claims stem from injuries alleged by the children's parents.The court rejected TACM's argument that the state's investigation and seizure of the children were carried out in bad faith. In relying on abstention to dismiss the case, the 8th Circuit avoided deciding whether the district court had correctly denied standing to TAMC. Arkansas News Bureau reports on  yesterday's decision.

High School Prayer Mural Violates Establishment Clause

In Ahlquist v. City of Cranston, (D RI, Jan. 11, 2012), a Rhode Island federal district court held that a high school student has standing to challenge on Establishment Clause grounds a prayer mural that hangs in her school's auditorium.  The mural contains the text of a School Prayer that was routinely recited by students before the practice was invalidated by the U.S. Supreme Court's school prayer decision in 1962. The mural, and another containing the school creed, were presented to the school by the Class of 1963. The court granted plaintiff a permanent injunction requiring immediate removal of the mural.  In finding that it violates the Establishment Clause, the court said in part:

The purposes of the Prayer when drafted, and the Prayer Mural, when installed, were clearly religious in nature.... No amount of debate can make the School Prayer anything other than a prayer, and a Christian one at that.

The Cranston Patch reports on the decision, as does the Boston Globe. (See prior related posting.)

UPDATE: The Humanist Examiner reports that the teenage plaintiff in the case has been bombarded with taunts and threats of physical violence, many through social media.

Brazilian Official Wants To Regulate Underwear and Necklines On Wedding Dresses

In the Brazilian town of Vila Velha, apparently the latest superstition among brides is that their marriage will last longer if they wear no panties under their wedding dress during the wedding ceremony.  The London Mail reported Tuesday that Vila Velha council member Ozias Zizi wants to protect clergy from embarrassment and protect the dignity of churches by barring the practice, as well as by regulating the lower limit of necklines on wedding dresses. Zizi admitted his proposed law would be difficult to enforce.

In Canadian Province, Catholic Schools Hit By Complaints Under Parental Rights Law

The Edmonton Journal reported yesterday on the unanticipated consequences of a law enacted in 2009 by the Legislative Assembly in the Canadian province of Alberta. Bill 44, the Human Rights, Citizenship and Multiculturalism Amendment Act, added sexual orientation to the province's anti-discrimination law. It also includes a parental rights provision-- advocated by the Catholic Church among others-- requiring a school to provide notice to parents whenever a class or program will be dealing primarily and explicitly with religion, sexuality or sexual orientation, so the parent can request his or her child be excused from class or not participate. (See prior posting.) Now however in the town of Morinville where all public schools are operated by the Greater St. Albert Catholic schools, it is the Catholic school board that is the subject of parental complaints about the ability to opt out. At least 5 non-Catholic parents have filed complaints with the Alberta Human Rights Commission claiming that their non-Catholic children were forced to receive religious instruction, without the ability to opt out. They say that in the Morinville schools, Catholic doctrine permeates all aspects of the school day. Non-Catholic parents in Morinville (which is no longer a homogeneous Catholic village) are attempting to get a secular school alternative for their children.

Virginia Court Awards Property of Break-Away Churches To Episcopal Diocese

In 2010, the Virginia Supreme Court held that Virginia's 1867 "Division Statute" does not apply to nine congregations that broke away from The Episcopal Church and affiliated with the Convocation of Anglicans in North America. This holding revived the declaratory judgment actions that had been filed to determine ownership under real property and contract law of the property of the break-away congregations. (See prior posting.) On remand, a Virginia state trial court held a 22-day trial and on Tuesday issued a 113-page opinion in the case. In In re Multi-Circuit Church Property Litigation, (VA Cir. Ct., Jan. 10, 2012), the trial court ruled that all the property of the break-away congregations is to be conveyed to The Episcopal Church's Diocese of Virginia. It held that:

the CANA Congregations, in that they are not Episcopal Congregations, do not possess either contractual or proprietary interests in the property of the seven Episcopal Churches at issue. They are, therefore, enjoined from further use or control of these properties and must promptly relinquish them to the Diocese.

Finally the court held that the directors of the Falls Church Endowment Fund are to be elected by the vestry of the continuing Falls Church congregation-- the congregation that remained affiliated with The Episcopal Church.

Episcopal Cafe reports on the reactions of the parties to the court's decision. [Thanks to both John Chilton and George A. Sommerville for the lead.]

Analysis: Some Thoughts On Church Autonomy After Today's Hosanna-Tabor Decision

Today the Supreme Court in the Hosanna-Tabor case applied the ministerial exception doctrine to require dismissal of a suit charging a church with a violation of the the Americans With Disabilities Act in firing a "called" teacher. (See prior posting.)

Chief Justice Roberts' opinion for the court made it clear that the ministerial exception doctrine is required by the Constitution.  He says that both the free exercise and the establishment clause bar government from interfering with the decision of a religious group to fire one of its ministers. Many free exercise cases relate to an individual's freedom to practice his or her religion.  This case, the Court makes clear, is instead about the institutional autonomy of the church.  Chief Justice Roberts early on focuses on the Magna Carta's protection of the Church of England, and emphasizes that:

the Religion Clauses ensured that the new Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices.

Chief Justice Roberts explains that:

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

However, Chief Justice Roberts' characterization of the case belies this rationale.  The Lutheran Church's faith or mission does not call for dismissal of a minister who has a health-related disability. Chief Justice Roberts fails to characterize this case as one in which the state interferes with a Church's decision made on theological grounds to hire or fire a minister.  Indeed, he specifically holds that this is irrelevant:

The purpose of the [ministerial] exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter “strictly ecclesiastical,” ... —is the church’s alone.

Should the First Amendment really permit churches to stand above the law on matters having no doctrinal component to them?

Justice Alito's concurrence focuses on a much more persuasive basis for the Court's decision, one based on the church's concern about doctrinal matters:

The Roman Catholic Church’s insistence on clerical celibacy may be much better known than the Lutheran Church’s doctrine of internal dispute resolution, but popular familiarity with a religious doctrine cannot be the determinative factor.

What matters in the present case is that Hosanna-Tabor believes that the religious function that respondent performed made it essential that she abide by the doctrine of internal dispute resolution; and the civil courts are in no position to second-guess that assessment.

If the Religion Clauses broadly preclude the government from imposing a minister on a church, presumably they likewise preclude the government from preventing a church from hiring particular clergy. Does this mean that the federal government may not deport an alien who is in the United States illegally when that individual has been chosen to be the minister of a church? Does the principle preclude the state from arresting a minister who is charged with criminal activity because doing so would deprive a church of its chosen religious leader?  Where the Constitution was most concerned about autonomy-- Congress' autonomy from interference by the Executive Branch-- the Constitution did create at least limited immunity from arrest.

And if church autonomy precludes governmental interference in selection of those who will personify its beliefs, does it also preclude governmental interference in the design of church buildings that personify the Church's image to its adherents and to outsiders?  If so, how does that limit zoning laws? Indeed Justice Alito's explanation of church autonomy in his concurring opinion suggests a principle broader than just selection of clergy:

The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith.

Finally, by holding that the ministerial exception is constitutionally required, the Court seems to call for its application at least in every kind of litigation that deals with hiring or firing of a minister. So while the court says it is not deciding the issue, it seems difficult to envision a court being able to adjudicate a breach of contract claim by a fired minister against his or her church without the court also interfering in the church's choice of its leaders.

Supreme Court Upholds Ministerial Exception To Bar Teacher's ADA Claim

The Supreme Court this morning handed down its decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, (Sup. Ct., Jan. 11, 2012), concluding unanimously that "there is a ministerial exception grounded in the Religion Clauses of the First Amendment," and that it applies to bar a suit claiming that a "called" teacher at a Lutheran elementary and middle school was fired in retaliation for threatening to bring a lawsuit under the Americans With Disabilities Act. In finding that the exception applied to plaintiff, the court emphasized that she was given the title "minister of religion":

In light of ...  the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we concludethat Perich was a minister covered by the ministerial exception

Chief Justice Roberts writing for the Court, and reversing the decision of the Sixth Circuit (see prior posting), summarized the Court's holding:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

Concurring opinions were filed by Justice Thomas, and by Justice Alito joined by Justice Kagan.  Later postings on Religion Clause will offer more analysis of today's opinions.

10th Circuit Says Oklahoma Anti-Sharia Amendment Violates Establishment Clause

In Awad v. Ziriax, (10th Cir., Jan. 10, 2012), the 10th Circuit Court of Appeals affirmed a federal district court's  preliminary injunction (see prior posting) preventing the Oklahoma state election board from certifying voter approval of an anti-Sharia constitutional amendment. The so-called "Save Our State" Amendment provides that Oklahoma courts may not look to the legal precepts of other nations or cultures, and specifically cannot consider international law or Sharia Law.  The 10th Circuit held that plaintiff, a Muslim, has standing to challenge the amendment, saying:

We conclude that Mr. Awad’s allegation—that the proposed state amendment expressly condemns his religion and exposes him and other Muslims in Oklahoma to disfavored treatment—suffices to establish the kind of direct injury-in-fact necessary to create Establishment Clause standing.

In finding that the amendment violates the Establishment Clause the court applied "strict scrutiny" because the amendment discriminates among religions.  The court concluded:

Given the lack of evidence of any concrete problem, any harm Appellants seek to remedy with the proposed amendment is speculative at best and cannot support a compelling interest. “To sacrifice First Amendment protections for so speculative a gain is not warranted . . . .”

The Los Angeles Times reports on the decision.

Kentucky Governor Rejects Hospital Merger That Posed Establishment Clause Issues

Lexology reports that last week Kentucky Gov. Steve Beshear announced that he will not approve a proposed merger of several hospitals that includes the merger of the University of Louisville Medical Center with several other hospitals that are currently subject to the Ethical and Religious Directives (ERD) for Catholic Health Care Services.  His decision follows a report (full text) by Kentucky Attorney General Jack Conway recommending against approval, in part because of the complexity of the Establishment Clause issues involved. While many aspects of the merger raised questions, one has been the influence of Catholic religious guidelines on the University hospital. Here is a portion of the Attorney General's comment on a provision in the agreement that University hospital would no longer perform sterilizations (including tubal ligations) and would not dispense contraceptives:

Opponents of the proposed merger argue that approval of the transaction will have the impermissible effect of advancing religion by authorizing and requiring a public, state-owned hospital to be governed by the Catholic Church's religious directives.... The vagueness surrounding the ERD issue ... may likely set the stage for a constitutional challenge of the consolidation.... [T]he Attorney General is not yet in a position to opine as to whether the proposed consolidation satisfies the United States and Kentucky Constitutions....In any event, such litigation would undoubtedly be lengthy and would require the use of valuable state resources to defend.

Settlement of Lawsuit Will Allow DC Special Elections To Avoid Religious Holiday Conflicts

The Washington Post reports that last week a settlement was reached in a lawsuit that Rabbi Shmuel Herzfeld brought last year against the District of Columbia over the scheduling of special elections in conflict with religious holidays.  The city charter currently requires that any special election be scheduled the first Tuesday that is 114 days after a vacancy is declared. This resulted in a 2011 special election for a Council member and two school board members to be scheduled on the 8th day of Passover. (See prior posting.) Under the settlement, D.C. Mayor Vincent Gray will submit a charter amendment to D.C. Council and D.C. voters that will give the Board of Elections and Ethics discretion to avoid this sort of conflict by allowing the election to be scheduled between 100 and 130 days after a vacancy is declared.

India's Election Commission Proposes Action Against Cabinet Minister Over Election Promise To Muslims

In India, as previously reported, a December 2009 Report of the National Commission for Religious and Linguistic Minorities recommended that Parliament change its present scheduled caste set-asides and add a 10% quota in educational institutions and government jobs for Muslims, along with 5% for other minorities. In December 2011, the government said it will create a 4.5% sub-quota for economically and socially disadvantaged non-Hindu minorities. (See prior posting.) Yesterday PTI reported that Salman Khurshid, Cabinet Minister of the Ministry of Law and Justice, speaking at an election rally in Uttar Pradesh where his wife is running for a seat in the state's legislative assembly promised that the Congress Party-- his and his wife's party-- would create a 9% sub-quota for minorities and this would help Muslims. This led India's Election Commission yesterday to issue orders to Khurshid (full text) and his wife to show cause why action should not be taken against them for violating India's Model Code of Conduct that provides: "No party or candidate shall indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic."

UPDATE: The Chandigarh, India Tribune (1/11) reports that the Election Commission has issued an order asking the Ministry of Personnel and Training to hold off on implementing the announced 4.5% sub-quota until the election process in the states of Punjab, Uttar Pradesh, Uttarakhand, Goa and Manipur is over.

New York Regents Give Religious Schools Conscience Exemption To Teaching Tolerance

Last year, New York enacted the Dignity for All Students Act, effective July 1, 2012. (See prior posting.) In addition to prohibiting bullying, the law (Educ. Law Sec. 801-a) requires schools to include in their K-12 curriculum instruction in tolerance and respect for others of  different  races,  weights, national origins, ethnic  groups,  religions,  religious  practices,  mental  or  physical   abilities, sexual orientations, genders, and sexes. According to Yeshiva World, on Monday the New York Board of Regents voted to exempt yeshivas and parochial schools from this requirement to the extent that the school has a religious or moral objection to the requirement. Assemblyman Steven Cymbrowitz said that parents of students in such schools "may now feel secure that ... their children will not be subjected to lessons that are inconsistent with their religious doctrines."

Supreme Court Hears Oral Arguments On FCC Indecency Rules

The U.S. Supreme Court today heard oral arguments in FCC v. Fox Television Stations, Inc. (Transcript of oral arguments.) The case, which is of interest to many in the religious community, involves a constitutional challenge to the Federal Communications Commission's current policy barring indecency on radio and television broadcasts during prime time. The San Antonio Express-News and National Law Journal reports on the arguments.

Supreme Court Limits Prisoners' Bivens Actions

The U.S. Supreme Court today decided a case that may impact the right of prisoners in some cases to sue for infringement of their 1st Amendment right to the free exercise of religion.  In Minneci v. Pollard, (Sup. Ct., Jan. 12, 2012), the Court held, 8-1, that:

where ... a federal prisoner seeks damages from privately employed personnel working at a privately operated federal prison, where the conduct allegedly amounts to a violation of the Eighth Amendment, and where that conduct is of a kind that typically falls within the scope of traditional state tort law ..., the prisoner must seek a remedy under state tort law. We cannot imply a Bivens remedy in such a case.

SCOTUSblog reports on the decision.

West Virginia County's Funding of Jesus Fest Creates Controversy

The Harrison County West Virginia Commission is receiving conflicting advice on the constitutionality of its $2000 grant to Jesus Fest, a two-day festival in downtown Clarksburg. The festival has received the grant for the last 5 years. According to the Charleston Daily Mail last month, the funding comes from video lottery and table game revenue given to the county by the state which is used to fund festivals and community events. In a Dec. 22 letter (full text), the ACLU of West Virginia says that the funding violates the Establishment Clause as well as provisions of the West Virginia constitution that bar favoring any sect or denomination.  However a Jan. 5 letter (full text) from The Rutherford Fund argues that the funding is constitutional because the the county's program neutrally funds all types of community events without regard to their viewpoint.  The letter goes on to argue that the funding does not benefit religion, but instead covers costs of general festival expenses such as children's movies and a second stage. (Rutherford Institute press release.) The ACLU asked for a response by Jan. 6, but the county prosecuting attorney says he needs more time to study the issue. (WDTV News).

UPDATE: WDTV News reported on Jan. 19 that Harrison County Prosecuting Attorney Joe Shaffer ruled that the county's process for funding fairs and festivals such as the Jesus Festival is neutral and does not endorse religion or deny funding on the basis of religion.

8th Circuit En Banc Hears Arguments On Funeral Picketing Cse

Yesterday the U.S. 8th Circuit Court of Appeals en banc heard oral arguments in Phelps-Roper v. City of Manchester, Missouri. An audio recording of the full arguments is available online. In an October 5, 2011 opinion (full text), a 3-judge panel of the 8th Circuit held that a Manchester, Missouri ordinance that regulates protests near funerals is unconstitutional. The panel upheld the nominal damages and injunction granted to members of the Westboro Baptist Church who challenged the ordinance. Town and Country-Manchester Patch reports on yesterday's oral arguments.