7th Circuit: Appeal of Orders In Land Transfer To Catholic School Is Moot and Untimely

In Wirtz v. City of South Bend, (7th Cir., Feb. 7, 2012), the U.S. 7th Circuit Court of Appeals dismissed as untimely and moot an appeal by the city of South Bend, Indiana of two orders by the trial court in litigation over the city's transfer of property to a Catholic high school for an athletic complex.  A district court rejected two plans for the transfer, on Establishment Clause grounds (see prior posting), but ultimately approved the transfer under an arrangement where the Catholic school was the highest bidder. In an appeal from the district court's approval of the transfer, the city seeks to challenge the two previous orders that disapproved earlier plans, arguing that they create precedent that will prevent the city from transferring land to religious institutions in the future. The court said that the city should instead have filed a timely appeal from the first denials.WSBT-TV reports on the decision.

Christian Evangelists May Continue Suit Against Dearborn Over Arrests

In Acts 17 Apologetics v. City of Dearborn, (ED MI, Feb. 7, 2012), a Michigan federal district court refused to grant summary judgment to the City of Dearborn in a suit against it by three Christian evangelists who sued over their arrest and subsequent breach of the peace trial for proselytizing Muslims at Dearborn's Arab International Festival. Plaintiffs assert 12 causes of action growing out of their treatment. The court held that on the facts of this case, a state court's finding that authorities had probable cause to arrest defendants does not preclude the federal court from reexamining that issue. The Dearborn Press & Guide reports on the decision. (See prior related posting.)

British Appeals Court Upholds Damages For Religious Refusal To Rent Hotel Room To Same-Sex Couple

In Bull v. Hall & Preddy, (EWCA, Feb. 10, 2012), the Court of Appeal of England and Wales upheld a damage award against a Christian couple who operated a hotel for refusing, on religious grounds, to rent a double-bedded room to a same-sex couple that had reserved it.  The court held that the refusal amounted to direct discrimination in violation of the Equality Act (Sexual Orientation) Regulations 2007. Appellants argued that applying the Regulations to them violated their right of thought, conscience and religion protected by Art. 9 of the European Convention on Human Rights. The court rejected the argument. Lady Justice Rafferty in her opinion wrote:

Whilst the Appellants’ beliefs about sexual practice may not find the acceptance that once they did, nevertheless a democratic society must ensure that their espousal and expression remain open to those who hold them. It would be unfortunate to replace legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the Appellants’ beliefs); rather there should be achieved respect for the broad protection granted to religious freedom.... Any interference with religious rights.... must satisfy the test of `anxious scrutiny’. However, in a pluralist society it is inevitable that from time to time, as here, views, beliefs and rights of some are not compatible with those of others. ...I do not consider that the Appellants face any difficulty in manifesting their religious beliefs, they are merely prohibited from so doing in the commercial context they have chosen.

The Telegraph reports on the decision. (See prior related posting.)

Supreme Court Review Sought In Mt. Soledad Cross Case

A petition for certiorari (full text) was filed with the U.S. Supreme Court on Thursday in City of San Diego v. Trunk, (cert. filed 2/9/2012). In the case, a 3-judge panel of the 9th Circuit held that the now federally-owned Mt. Soledad Memorial featuring a 43-foot high cross conveys a government message of endorsement of religion that violates the Establishment Clause. Subsequently the full 9th Circuit refused an en banc rehearing. However 5 judges, joined an opinion dissenting from the denial of en banc review. (See prior posting.) Liberty Institute issued a press release on the filing of the petition for review with the Supreme Court. AP reports that a rally by 75 supporters to mark the filing of the petition also drew three dozen opponents.

Obama Adopts New Compromise On Contraceptive Coverage; Opponents Say It Is Insufficient

As reported by CNN, President Obama today announced a compromise in the dispute over whether health insurance policies offered to employees by religiously affiliated institutions will need to cover contraceptive services. (See prior related posting.)  According to a Fact Sheet released by the White House, "if a woman works for religious employers with objections to providing contraceptive services as part of its health plan, the religious employer will not be required to provide contraception coverage, but her insurance company will be required to offer contraceptive care free of charge." The Becket Fund quickly issued a press release calling the White House's new policy a "false compromise," explaining:

First, hundreds if not thousands of religious organizations self insure, meaning that they will still be forced to pay for these services in violation of their religious beliefs. Second, it is unclear which religious organizations are permitted to claim the new exemption, and whether it will extend to for-profit organizations, individuals, or non-denominational organizations. Third, money is fungible, and many religious organizations may still object to being forced to pay money to an insurance company which will turn around and provide contraception to its employees for free.

UPDATE: The U.S. Conference of Catholic Bishops also issued a statement on Friday (full text) saying that while the new policy requires careful moral analysis, the "only complete solution" is is for HHS to rescind the coverage mandate.

Texas Graduation Prayer Litigation Settled

Apparently bowing to the trial court judge's pressure to settle the case (see prior posting), the parties yesterday  entered a settlement agreement (full text) in Schultz v. Medina Valley Independent School District, (WD TX, Feb. 9, 2012). The suit, filed by Americans United, challenged the school district's plan to include student-led prayers in its graduation ceremony.  The settlement covers not only graduation prayer, but a range of issues relating to religion in the public schools. (AU press release). Under the settlement, the valedictorian or class president can deliver remarks at graduation. The school may not suggest, revise or edit the content of the remarks, and must deliver an oral and written disclaimer stating that students' remarks reflect their personal views and are not endorsed by the school. In this context, a prayer by a graduation speaker is permitted, but school district personnel on stage may not stand during the student prayer. The settlement also bars school teachers and administrators during school or school-sponsored activities from proselytizing, initiating prayers or joining students in prayer. Officials will not display religious symbols or quotations in school. No prayer will be included at football games, scholarship ceremonies or award banquets. The District will disclaim sponsorship of student speeches at games and activities. The school district will offer annual training for personnel as to student rights and will include information in the student handbook on the issue of religion in schools.

The court's Order approving the settlement (full text) reflected Judge Biery's idiosyncratic style.  The judge not only added an Appendix captioned An Ironic Venue for Separation of Church and State Litigation, but also added a "Personal Statement" to the Order. The Statement reads:

During the course of this litigation, many have played a part:

To the United States Marshal Service and local police who have provided heightened security: Thank you.

To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you.

To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability.

To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.

To the lawyers who have advocated professionally and respectfully for their clients' respective positions: Bless you.

The San Antonio Express-News reports on these developments.

Suit Filed Challenging Forest Service Approval of Jesus Statue

On Wednesday, the Freedom From Religion Foundation announced that it filed a federal lawsuit challenging the U.S. Forest Service's recent renewal of a permit for the Knights of Columbus to continue to display of a statue of Jesus near the top of a ski lift at the Whitefish Mountain Resort in Montana's Flathead National Forest. (See prior posting.) The complaint (full text) in Freedom From Religion Foundation, Inc. v. Weber, (D MT, filed 2/7/2012), alleges that the continued authorization of the statue violates the Establishment Clause. It claims that the actions of the Forest Service "in perpetuating a religious shrine on federal property, give the public appearance of government endorsement of religion, including an unmistakable symbolic link between the government and religion." The suit asks the court to order withdrawal of the permit and removal of the statue from Forest Service property. The American Center for Law and Justice quickly announced that it would file an amicus brief supporting the constitutionality of the statue. The Flathead (MT) Beacon reports on the lawsuit.

Suit Challenges 10 Commandments Monument At A New Mexico City Hall

The ACLU of New Mexico announced yesterday that it has filed a federal lawsuit on behalf of two Bloomfield, NM citizens seeking removal of a large Ten Commandments monument erected last year on the lawn of city hall. The complaint (full text) in Felix v. City of Bloomfield, New Mexico, (D NM, filed 2/8/2012), asserts that the monument violates the Establishment Clause. The complaint chronicles the various resolutions adopted by city council, largely at the urging of then council-member Kevin Mauzy, that led to the authorization of the monument. Among other things, the complaint contends that the city's religious purpose in authorizing the monument is demonstrated by the close working relationship that Mauzy had with the Alliance Defense Fund in obtaining city authorization. The Farmington (NM) Daily Times reports on the lawsuit.

Catholic News Organization Sues Over Contraception Coverage Mandate

The Becket Fund announced yesterday that it has filed a federal lawsuit in Alabama on behalf of a non-profit Catholic news organization challenging the application to it of the federal Mandate under the Affordable Care Act requiring health insurance policies (with limited exceptions) to cover contraceptive services for women.  The complaint (full text) in Eternal Word Television Network, Inc. v. Sebelius, (ND AL, filed 2/9/2012), alleges that EWTN, founded in 1981 by a cloistered nun, has grown to now become the largest Catholic media network in the world with 340 employees. The complaint asserts:

28. As part of its commitment to Catholic social teaching, EWTN promotes the well-being and health of its employees. In furtherance of these beliefs, EWTN has striven over the years to provide employee health coverage superior to coverage generally available in the Alabama market.

29. Moreover, as part of its religious commitment to the authoritative teachings of the Catholic Church, EWTN ensures that its insurance policies do not cover drugs, devices, services or procedures inconsistent with its faith. In particular, EWTN has taken great pains through the years to ensure that its insurance plans do not cover sterilization, contraception, or abortion.

The complaint claims that the mandate violates the Religious Freedom Restoration Act, the Free Exercise, free expression and Establishment clauses of the 1st Amendment, as well as the Administrative Procedure Act.

EWTN also issued a statement announcing the lawsuit, saying in part:

"We are taking this action to defend not only ourselves but also to protect other institutions – Catholic and non-Catholic, religious and secular – from having this mandate imposed upon them".... "The government is forcing EWTN, first, to inform its employees about how to get contraception, sterilization and abortifacient drugs, a concept known as forced speech. To make the matter worse, the government then will force EWTN to use its donors' funds to pay for these same morally objectionable procedures or to pay for the huge fines it will levy against us if we fail to provide health care insurance.

Becket Fund had previously filed two similar lawsuits (see prior posting 1, 2) on behalf of religiously-affiliated universities. Discussion of the Mandate in the media has generally focused on Catholic universities and hospitals. This appears to be the first significant challenge brought by an organization outside those two categories. ABC News reports on the new lawsuit.

UPDATE: According to Friday's Detroit Free Press, Michigan state attorney general Bill Schuette say he will take the lead in assembling states to file an amicus brief supporting the Becket Fund's position in the three cases.

University May Fire Human Resources VP For Expressing Her Religiously-Based Views On Gays

In Dixon v. University of Toledo, 2012 U.S. Dist. LEXIS 14934 (ND OH, Feb. 6, 2012), an Ohio federal district court upheld action by the University of Toledo in dismissing the Associate Vice President for Human Resources who, based on her religious views, published (without identifying her position with the University) a response to an op-ed in a local newspaper in which she objected to the idea that homosexuals are "civil rights victims" and said that homosexuality is purely a choice. In her suit challenging her dismissal, plaintiff alleged free speech and equal protection violations, repeatedly citing her religious views. The court held that plaintiff's free speech rights were not infringed because the nature of her position with the University meant that her statement could disrupt the Human Resources Department and cause prospective employees who are gay or lesbian to reconsider or withdraw their applications. Her statement could also lead to challenges to her employment decisions. The court also rejected plaintiff's equal protection claim.

Alleged West Point Establishment Clause Violation Would Not Support Relief Sought By Plaintiff

In Spadone v. McHugh, (D DC, Feb. 8, 2012), plaintiff was any Army recruit who had been expelled from the U.S. Military Academy at West Point after he plagiarized an essay in an Advanced Composition class. In suing to seek reinstatement, he claimed, among other things, that West Point violated the Establishment Clause when a panel investigating charges against him concluded he had not properly shown contrition or accepted responsibility and ordered him to stand with his body rigid in a military posture and to read aloud the "Cadet’s Prayer." The court concluded that even if plaintiff was correct, the violation would yield an order barring forced religious prayer, and not the preliminary injunction plaintiff sought ordering him re-enrolled in West Point.

Tribal Free Exercise Challenge To Road Project May Continue

In Slockish v. U.S. Federal Highway Administration, 2012 U.S. Dist. LEXIS 14422 (D OR, Feb. 6, 2012), an Oregon federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 152892, Sept. 21, 2011), and allowed members of the Yakima Nation Indian tribe to proceed with free exercise and RFRA claims against the Federal Highway Administration. In the case, plaintiffs claimed that a road widening project damaged sacred burial grounds, destroyed religious artifacts and buried a historic camp site, and that a new guard rail blocked their access to the camp site. The court, distinguishing the Supreme Court's decision in Lyng v. Northwest Indian Protective Association, held that there are disputes of fact that prevent granting summary judgment to defendants. The court, however, rejected a number of claims, including assertions of a protected right to maintain traditional culture and a claimed right of familial association to meditate and worship in the presence of ancestors.

U.S. Officials Help Mark Jewish Holiday of Tu Bishvat

Yesterday was the Jewish holiday of Tu Bishvat, a minor holiday also known as the "New Year of the trees."  Haaretz reports that to commemorate the day, the U.S. Department of Agriculture Under-Secretary who oversees the U.S. Forest Service, Harris Sherman, planted a redwood tree in a ceremony held near USDA headquarters in Washington. Other Obama officials this week planted trees in Arizona, Colorado and Israel to mark the holiday.

Washington State Legislature Passes Same-Sex Marriage Bill With Protections For Religious Organizations

The Washington state legislature yesterday gave final passage, and sent to the governor for her signature, SB 6239 legalizing same-sex marriage in the state. The House of Representatives passed the bill by a vote of 55-43, after the state Senate passed it last week by a vote of 28-21. (See prior related posting.)  CNN reports that Gov. Christine Gregoire will sign the bill that will go into effect in June at the end of the legislative session-- unless opponents place it on the November ballot to seek voter disapproval. The bill contains a number of provisions to protect churches, religious organizations and clergy. No member of the clergy is required to perform or recognized a same-sex marriage. No religious organization or religiously affiliated educational institution is required to provide accommodations, facilities (including campus chapels), goods or services related to the solemnization of a marriage. The bill also provides that:

No state agency or local government may base a decision to penalize, withhold benefits from, or refuse to contract with any religious organization on the refusal of a person associated with such religious organization to solemnize or recognize a marriage under this section.

 The bill defines "religious organization" to include faith-based social service organizations even if they offer services to the broader community.

11th Circuit: No Religious Discrimination In Lay Off of Christian Counselor

In Walden v. Centers for Disease Control and Prevention, (11th Cir., Feb. 7, 2012), the U.S. 11th Circuit Court of Appeals rejected claims by Marcia Walden, a counselor in an employee assistance program at the CDC, that her free exercise rights under the 1st Amendment and RFRA were violated when she was laid off because of the way in which she handled a client in need of same-sex relationship counseling. Walden was employed by Computer Sciences Corp. which ran the employee assistance program for CDC, and her lay off came when CDC insisted on it.  Walden is a devout Christian who believes that same-sex relationships are immoral.  She referred a CDC employee client to an outside counselor, telling the client that the referral was "based on my personal values".  The client said she felt "judged and condemned" by this referral. Walden refused the suggestion that in the future in referring out a gay or lesbian client, she not say it is because of her values. The court concluded:

The record is devoid of evidence supporting Ms. Walden’s claim that either defendant called for her removal from the EAP contract due to her religiously-based need to refer clients who needed same-sex relationship counseling.

Instead, ... they were concerned that she would behave the same way [in referring out a client] if a similar situation were to arise in the future. And, significantly, Ms. Walden testified that it was not part of her “religious beliefs” to tell clients ... that she could not counsel them due to her religious beliefs or personal values. Instead, she said she wanted “to be honest with my clients.”... She ... explained that “it seemed unfair that [Ms. Doe] was able to talk about being gay and lesbian, and yet I couldn’t freely talk about me and my religious beliefs, or being Christian.... To me, it’s about honesty. If she can be honest – I mean, I should be honest about why I’m transferring her.”

The court also rejected Walden's Title VII employment discrimination claim because reasonable accommodation had been offered by encouraging Walden to seek another position within the company. The Wall Street Journal yesterday reported on the decision.

Evolution Weekend Designed To Show Religious Acceptance of Science

This week end is the 7th annual Evolution Weekend, sponsored by the Clergy Letter Project. The weekend is designed to demonstrate that many religious faiths see no conflict between religion and science. The Project website says:

Religious people from many diverse faith traditions and locations around the world understand that evolution is quite simply sound science; and for them, it does not in any way threaten, demean, or diminish their faith in God. In fact, for many, the wonders of science often enhance and deepen their awe and gratitude towards God.

Suit Challenges Exclusion of Unvaccinated Students When Disease Occurs

Today's New York Daily News reports that two parents are suing school officials over decisions by two principals to send unvaccinated children home when other students at their schools contracted communicable diseases.  Plaintiffs had invoked a state law that allowed them to object on religious grounds to having their children vaccinated. They are now challenging a Chancellor's regulation that allows principals to exclude unvaccinated children for up to 3 weeks when others have contracted measles, mumps, chicken pox or other similar diseases. Neither plaintiff would disclose their religious affiliation, but one explained: "It is my opinion that resorting to vaccinations demonstrates a lack of faith in God, which would anger God and therefore be sacrilegious." The suit was originally filed in state court but has been removed to federal district court in Brooklyn where the court may schedule an emergency hearing soon.

Indian Court Orders State To Pay For 2002 Riot Damage To Religious Buildings

The High Court in the Indian state of Gujarat today ordered the state government to pay compensation to over 500 religious structures that were damaged in riots in 2002, according to the Economic Times. More than 1000 people were killed in the 2002 Muslim-Hindu riots that followed the burning of a train that was transporting Hindu pilgrims. (Background.) The 3-judge court in Gujarat found that inaction and negligence by the state government in preventing the riots resulted in large-scale damage to religious structures. The court ruled in a case brought by the Islamic Relief Committee of Gujarat. The government has already paid damages for destruction of homes and commercial establishments. The High Court ordered the principal judges of the state's 26 districts to receive applications from religious organizations and send their decisions on them to the High Court within 6 months.

USCIRF Urges Obama To Raise Human Rights Issues With China's VP

Chinese Vice President Xi Jinping will be visiting the United States next week. (Voice of America). Yesterday, the U.S. Commission on International Religious Freedom sent a letter (full text) to President Obama urging him to raise human rights and religious freedom concerns during his meetings with Xi, and to take other suggested steps to demonstrate U.S. concern about human rights in China.

White House Suggests Some Bargaining Room On Contraceptive Coverage Mandate

Facing a continued barrage of criticism particularly from Catholic organizations over its mandate requiring coverage of contraceptive services in health insurance plans offered by religiously affiliated universities and hospitals, the White House yesterday suggested that there may be room for compromise.  In the daily press briefing (full text), White House Press Secretary Jay Carney engaged in this exchange with reporters:

          Q   ...  On the decision about the religious-affiliated groups and contraception, you were asked last week if there’s a debate within the administration about reconsidering, and you flatly said, no, the decision has been made.  Does that absolutely remain the case, no reconsideration?

         MR. CARNEY:  It does.  The President is committed to making sure that all women have access to these important preventive services.  But I think it is important to remember what was clearly stated when this policy decision was announced and that is that we will be working with those organizations and individuals who have concerns about the implementation of this rule, and that’s why that time period of a full year beginning in August of 2012 was put into place because the President is very interested in finding the appropriate balance between religious beliefs and convictions -- and he takes those very seriously -- and his commitment to making sure that women of all faiths have access to these important health care preventive services.  So that process will continue. And I think that that point was overlooked in the initial coverage of the decision....

       Q    ... [T]here’s a perception out there -- and in some cases David Axelrod’s comments led some to think that the very implementation you’ve talked about over the next year or so will lead to a different outcome, that in the rule-making, there will be some deal cut, some out given to get away from this controversy.  Ultimately, no matter how it’s implemented, will the bottom line remain the same, that these organizations have to provide that contraceptive coverage?

        MR. CARNEY:  The President’s interest is in making sure that -- on the one side of this balance ... that all ... women here, have access to the same preventive care services.

        He is also concerned about and understands the religious concerns that have been raised and takes seriously the religious convictions that are behind the concerns that have been raised.  And we will work in this period to see if there is a way, to try to find a way to make sure that the implementation of the policy or to see if the implementation of the policy can be done in a way that allays some of those concerns.

        But there are ways to I think help resolve this issue that ensures that we provide that important preventive service, that health care coverage, to all women, and that tries -- in a way that also tries to allay some of these concerns.

The Los Angeles Times characterized Carney's comments as more a shift in emphasis than substance.