Court Upholds City Council Invocation Policy

In Atheists of Florida, Inc. v. City of Lakeland, Florida, (MD FL, Feb 22, 2012), a Florida federal district court rejected challenges to the invocation policy of the Lakeland City Commission. Before 2010, individuals from a congregation list that included only Christian congregations were invited to deliver the invocation. Beginning in 2010, the policy was changed to expand the congregation list to include all congregations with a presence in the community, including several non-Christian congregations. The court said that legislative prayer, including sectarian prayer, can be constitutionally permissible under the type of selection process which Lakeland had after 2010. The court also rejected challenges to the pre-2010 policy. The Lakeland Ledger reports on the decision. The Lakeland Ledger reports on the decision.

7 States Sue HHS Over Contraceptive Coverage Mandate

Yesterday saw still another lawsuit challenging the Obama administration's mandate requiring most health insurance policies to cover contraceptive services.  This suit was filed by seven state attorneys-general (Nebraska, South Carolina, Michigan, Texas, Florida, Ohio and Oklahoma) along with several Catholic institutions and individuals.  The complaint (full text) in State of Nebraska v. U.S. Department of Health and Human Services, (D NE, filed 2/23/2012) alleges that the mandate violaes the Religious Freedom Restoration Act as well as constitutionally protected freedom of speech, association and free exercise of religion. The section of the complaint relating to the interest the attorneys-general have in bringing the lawsuit interestingly sets forth different allegations of interest for different states. It asserts that the Nebraska and Michigan attorneys-general are bringing the lawsuit on behalf of the people of their state.  As to the other attorneys general, the complaint alleges only that they are bringing the lawsuit on behalf of each of their sovereign states. Nebraska's Attorney General issued a press release announcing the lawsuit.

DOMA Held Unconstitutional By Federal District Court

A California federal district court has held that the Defense of Marriage Act is unconstitutional.  In Golinski v. United States Office of Personnel Management, (ND CA, Feb. 22, 2012), the court held that the equal protection rights of a female staff attorney employed by the U.S. 9th Circuit Court of Appeals were infringed when the Administrative Office of the U.S. Courts refused to process her application to add her same-sex spouse to her family coverage health insurance plan. The court concluded that heightened scrutiny should apply when reviewing statutory classifications based on sexual orientation. It added, however, that even under rational basis review, the statute fails.

In applying heightened scrutiny, the court rejected four justifications identified by Congress in enacting DOMA: (1) encouraging responsible procreation and child-rearing; (2) defending and nurturing the institution of traditional, heterosexual marriage; (3) defending traditional notions of morality; and (4) preserving scarce government resources. In applying rational basis review, the court also examined three other justifications that Congress might have had:  (1) preserving the status quo in the federal definition of marriage while waiting for the states to tinker with the traditional definition of marriage; (2) an interest in remaining cautious in an area of so much social divisiveness; and (3) avoiding the inconsistency of eligibility for federal benefits turning on the vagaries of state law. The San Jose Mercury News reports on the decision. [Thanks to Volokh Conspiracy for the lead.]

Scientology Australia Asks For Minimum Wage Exemption For Volunteers

In Australia, the Church of Scientology has filed a petition with Fair Work Australia, the national workplace relations tribunal, seeking an exemption from the minimum wage law for church volunteers.  A report from the Daily Telegraph quotes Scientology's public affairs director who says that requiring non-profit organizations to pay minimum wage levels is a violation of human rights. The Telegraph also reports:

The Church of Scientology was investigated by the Fair Work Ombudsman last year for claims some adherents worked up to 72 hours without a break and for as little as $10 a week. However, it was deemed that some of these workers were volunteers.

Recall Petitions Invalidated Because Church Improperly Promoted Them

In Cook v. Tom Brown Ministries, (TX App., Feb. 17, 2012), a Texas state appeals court ordered the decertification of recall petitions that were circulated by Word of Life Church (WOL) in an effort to recall the mayor of El Paso and two city council members.The effort was undertaken after the mayor and the two council members supported restoring health care benefits that had been taken from some city employees by the Traditional Family Values Ordinance that limited benefits to city employees, their legal spouse and dependent children. (See prior posting.)  The court found that WOL had violated Texas election rules:

WOL Church, as a corporation, through the use of its website, promoted the circulation of recall petitions, created a portal whereby volunteers could register through WOL Church to circulate petitions, provided the facility and personnel to assist in the signing and circulation of the recall petitions, and notified the public that recall petitions were available for signing at WOL Church. The evidence establishes that WOL Church made campaign contributions from its own property in connection with a measure-only recall election without properly making the contributions to a measure-only committee ... and that WOL Church, a corporation, made a political contribution in connection with a recall election, including the circulation and submission of petitions to call an election, and failed to make such contribution to a political committee in violation of Sections 253.096 and 253.094(b) of the Election Code.

The court also held that the Texas restrictions on corporate involvement in elections is not inconsistent with the U.S. Supreme Court's Citizens United decision. The El Paso Times last week reported on the decision.

Islamic School Sues Over Rezoning Denial

Ann Arbor.com reports that the Michigan Islamic Academy has filed a federal lawsuit against the Pittsfield Township, Michigan Board of Trustees challenging their denial of zoning changes needed for the Academy to build a new school to replace its current overcrowded facility.  The lawsuit, alleging violations of RLUIPA as well as the 1st and 14th Amendments, claims that the township used fabricated reasons to deny the school's rezoning request. It charges religious discrimination that imposes a substantial burden on the free exercise rights of the school and its students.

Copyright Infringement Claims Against Joel Osteen Dismissed, But With Leave To Amend

In Yesh Music v. Lakewood Church, (SD TX, Feb. 14, 2012), the composers of the song "Signaling Through the Flame" sued televangelist Joel Osteen, his wife and their Lakewood Church for copyright infringement, claiming that they continued to use the song to promote the Osteen's DVD "Supernatural" after the expiration of a one-year licensing agreement. Christian Post reports that "Supernatural" features Osteen speaking about God's plan for each individual. The court held that the Licensing Agreement provided perpetual-use Internet rights only for productions created prior to expiration of the Agreement. However the court dismissed claims against the Osteens for direct or contributory infringement because plaintiffs failed to allege that they had a financial stake in or personally supervised the infringing activity, but gave them 14 days to amend their complaint to cure these pleading problems. The court also rejected defendants' claim that allegations of infringement outside the United States should be dismissed. The complaint alleged that the song was broadcast in ads throughout the United States and in certain foreign countries, and in global broadcasts of church services.  But the court concluded that plaintiffs properly state a claim for extraterritorial infringement because the infringing acts were initiated in the United States.

Chabad Group Loses Challenge To Zoning Denial

In Chabad Lubavitch of Litchfield County, Inc. v. Borough of Lichtfield, Connecticut, 2012 U.S. Dist. LEXIS 20758 (D CT, Feb. 17, 2012), a Connecticut federal district court dismissed constitutional challenges and challenges under the Religious Land Use and Institutionalized Persons Act brought by an Orthodox Jewish group to zoning rulings that prevented it from expanding a building in Lichtfield's Historic District.  Chabad wanted to use the expanded building for religious purposes. Lichtfield County Times reports on the decision.

Washington Pharmacy Board Rules Violate Free Exercise Rights of Objecting Pharmacists

Yesterday in Stormans, Incorporated v. Selecky, (WD WA, Feb. 22, 2012), a Washington federal district court held unconstitutional the enforcement of rules of the Washington State Pharmacy Board that require pharmacies and pharmacists to dispense emergency contraception even when doing so violates a pharmacist's religious beliefs. At issue are Plan B and ella that prevent implantation of a fertilized egg in the uterus. In a 97-page Findings of Fact and Conclusions of Law, a 48-page Opinion, and a Permanent Injunction order, the court held that the rules, as applied to those with religious objections, violate the Free Exercise and Equal Protection clauses. More specifically, the court held:

The Board of Pharmacy’s 2007 rules are not neutral, and they are not generally applicable. They were designed instead to force religious objectors to dispense Plan B, and they sought to do so despite the fact that refusals to deliver for all sorts of secular reasons were permitted. The rules are unconstitutional as applied to Plaintiffs.

The court enjoined the state from enforcing the rules "against Plaintiffs, or against the pharmacies in which Plaintiffs have an ownership or managerial interest, or where Plaintiffs are employed, insofar as those Regulations would prohibit Plaintiffs from declining based on their religious beliefs to stock or deliver Plan B or ella and instead providing a referral to a nearby pharmacy or other location that provides Plan B or ella." The Becket Fund issued a press release announcing the decision. (See prior related posting.)

Court Says Now Scientology Church Can Pursue Discrimination In Zoning Claim

In Church of Scientology of Georgia v. City of Sandy Springs, 2012 U.S. Dist. LEXIS 19087 (ND GA, Feb. 10. 2012), a Georgia federal district court granted a motion for reconsideration of its earlier zoning decision (see prior posting). The earlier decision held that triable issues of fact remain on plaintiff's First Amendment claims and its RLUIPA claim that the city's action posed a substantial burden on its religious exercise, but dismissed its RLUIPA discrimination, equal terms and exclusion claims. In its new opinion, the court held that it now believes a question of fact exists as to whether Sandy Springs discriminated against the Church of Scientology on the basis of its religious denomination when, in granting conditional approval of its rezoning application, it refused to allow expansion of the church's existing building based on a lack of sufficient on-site parking. In an amended opinion, the court said:

Based on the entirety of the evidence in the record as more clearly demonstrated by Plaintiff in its motion for reconsideration, in conjunction with new, unchallenged evidence provided in the briefing on ripeness that Plaintiff originally sought a parking variance but was informed by a member of the City's planning staff that no variance was needed because the Church met the City's minimum parking requirement, the Court finds that Plaintiff has now sufficiently demonstrated evidence from which a possible inference of discrimination could be made.

Israel's High Court Strikes Down Law On Deferring Service For Yeshiva Students

Jerusalem Post reports that Israel's High Court of Justice yesterday struck down Israel's "Tal" law-- the "Deferral of Service for Yeshiva Students for Whom Torah Is Their Profession Law."  The law was passed by the Knesset in 2002 and requires renewal every 5 years. The current lawsuit was filed in 2007 by the Movement for Quality Government along with other groups, challenging the small number of haredi men who have enlisted under the law. Yesterday's holding means that the Knesset will not be able to renew the law in its present form this year. The law was designed to encourage haredi (strictly Orthodox) men to enlist in the armed forces. In 2011, 1282 of the men enlisted in the IDF and 1079 in a national service program. In a 6-3 decision, the Court held that the law conflicts with the provision in Israel's Basic Law: Human Dignity and Liberty, Sec. 8 that provides "There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required." The majority apparently agreed with petitioners' argument that the law does not work because it permits too many yeshiva students to avoid mandatory military service, and creates inequality by transferring the burden of serving to other groups in society.

Two dissenters argued that the government should be given more time to make the law work. A third dissenter said that there is no basis for judicial review of a law granting benefits to a minority group. Prime Minister Benjamin Netanyahu said that a revised version of the law will be forumulated.

En Banc Review By 9th Circuit Sought In Proposition 8 Invalidation

A petition (full text) for a rehearing en banc was filed with the U.S. 9th Circuit Court of Appeals yesterday in Perry v. Brown. In the case, a 3-judge panel of the 9th Circuit (by a 2-1 vote) struck down California's Proposition 8 that eliminated the right for same-sex couples to marry. (See prior posting.) AP reports on the rehearing petition. In a separate motion (full text) filed yesterday, Imperial County Clerk, Chuck Storey, sought again to intervene as a defendant in the case.

Cert. Denied In Claim Challenging Teacher's Anti-Religious Comment

Yesterday the U.S. Supreme Court denied certiorari in C.F. v. Corbett, (Docket No. 11-759). In the case, former high school student Chad Farnan claimed that in his sophomore Advanced Placement European History class, teacher James Corbett violated the Establishment clause by making statements that were hostile toward religion in general and Christianity in particular. The 9th Circuit dismissed the case on mootness and qualified immunity grounds. (See prior posting.) The Orange County Register reports on the Supreme Court's refusal to review the decision.

Afghans Protest Inadvertent Military Burning of Qur'ans

Furious demonstrations broke out in Afghanistan yesterday as reports circulated of NATO troops at Bagram Air Base setting fire to bags containing copies of the Qur'an and books of Qur'anic interpretation.  The New York Times and CNN report in depth on the events. On Monday night, a dump truck escorted by a military vehicle drove up to a landfill at Bagram and began unloading bags of books into a pit for incineration.  Afghans working at the site saw what was happening and objected. The soldiers drew back, but two bags already thrown into the pit had begun to burn, and they were pulled out by Afghans with half-burned Qur'ans in them.  The books came from the Detention Facility in Parwan which houses insurgents captured by Americans in raids.  ISAF Commander General John R. Allen said: "We are thoroughly investigating the incident and we are taking steps to ensure this does not ever happen again. I assure you … I promise you … this was NOT intentional in any way."  One official said that the materials were removed from a library at Parwan because of "extremist inscriptions" communicated on them. Secretary of Defense Leon Pantetta also apologized, while ISAF announced that coalition personnel will be trained in proper handling of religious materials by March 3. At the White House daily press briefing (full text), press secretary Jay Carney said in part:

This was a deeply unfortunate incident that does not reflect the great respect our military has for the religious practices of the Afghan people.  Our military leaders have apologized, as I mentioned, for these unintentional actions, and ISAF is undertaking an investigation to understand what happened and to ensure that steps are taken so that incidents like this do not happen again.

UPDATE: CNN reports Wednesday that at least 5 people have been killed and 20 wounded as police respond to protests in Parwan and Nangarhar provinces. The U.S. embassy in Kabul is in lock down for a second day. Americans were asked to avoid the area near Camp Phoenix (near Kabul International Airport) where violent demonstrations were also taking place.

Two New Challenges To Obama's Contraceptive Coverage Mandate Filed

Two more lawsuits, brought by religiously-affiliated universities, were filed yesterday to challenge the constitutionality of the Obama administration mandate that requires contraceptive services to be covered by most health insurance policies.  A press release from the Becket Fund reports that a suit was filed in federal court yesterday by Florida’s Ave Maria University.  The complaint (full text) in Ave Maria University v. Sebelius, (MD FL, filed 2/21/2012), claims that enforcing the mandate against Ave Maria would violate the Religious Freedom Restoration Act, the free exercise, free speech and establishment clauses of the First Amendment, as well as the Administrative Procedure Act. (See prior related posting.)

UPDATE: Ave Maria's president is Jim Towey, former director of George W. Bush’s Office of Faith-Based & Community Initiatives. The Daily Caller reports on Towey's conference call with reporters announcing the lawsuit.

Meanwhile, yesterday the Presbyterian-affiliated Geneva College in Beaver Falls, Pennsylvania filed a similar lawsuit.  The complaint (full text) in Geneva College v. Sebelius, (WD PA, filed 2/21/2012) indicates that Geneva College's objections are limited to being required to cover contraceptives (such as Plan B and ella) that it considers to be abortifacients. However its lawsuit seeks a broad order barring application of the mandate in a way that substantially burdens anyone's religious beliefs.  The Pittsburgh Post-Gazette reports on the lawsuit.

Religious Groups Urge Candidates Not To Use Religion Inappropriately

Fourteen religious groups-- Christian, Muslim, Jewish, Hindu and Sikh-- today urged political candidates to avoid inappropriate emphasis on religious belief in the upcoming campaign season. (Press release.) In a document titled Religion in Political Campaigns -- An Interfaith Statement of Principles, drafted by the Anti-Defamation League, the Baptist Joint Committee for Religious Liberty and the Interfaith Alliance, the 14 groups said:

Candidates for public office ... should feel comfortable explaining their religious convictions to voters, commenting about their own religious beliefs, explaining, if they wish to do so, how those beliefs shape their policy perspectives, and how they would balance the principles of their faith with their obligation to defend the Constitution if the two ever came into conflict. There is a point, however, where an emphasis on religion in a political campaign becomes inappropriate and even unsettling in a religiously diverse society such as ours.  Appealing to voters along religious lines is divisive. It is contrary to the American ideal of including all Americans in the political process, regardless of whether they are members of large and powerful religious groups, religious minorities, or subscribe to no faith tradition.

[Thanks to Michael Lieberman and to Jeff Huett for the lead.] 

FBI Removes Inaccurate Training Material On Muslims

The Detroit Free Press reported yesterday that the FBI has removed some 700 documents and 300 presentations that stereotyped Islam or were factually inaccurate. The action came after complaints from Muslim and Arab-American groups. The FBI plans to announce in the near future its procedures for vetting training material for accuracy. [Thanks to Blog from the Capital for the lead.]

British Employment Appeal Tribunal Holds Sikh Priest Must Be Paid Minimum Wage

In Singh v. Members of the Management Committee of the Bristol Sikh Temple, (EAT, Feb. 14, 2012), Britain's Employment Appeal Tribunal held that a former Priest at a Sikh Temple was a "worker" within section 54(3)(b) of the National Minimum Wage Act 1998.  This entitled him to the minimum wage, and not merely the amounts he had been receiving from contributions by members of the congregation. Reporting on the decision, today's London Mail says: "The decision means religious organisations, charities and groups which depend on voluntary help are at risk of having to pay a salary to thousands of people they believed were giving their help free."

Greek Orthodox Patriarch Meets With Commission Drafting Turkey's New Constitution

Hurriyet Daily News reported yesterday that in Turkey, Greek Orthodox Patriarch Bartholomew made an historic closed-door presentation to the Constitution Conciliation Commission which is drafting a new constitution for Turkey. The Patriarch said that this was "the first official invitation to non-Muslim minorities in Republican history." In an 18-page paper that he left with the Commission, the Patriarch called for equal treatment for non-Muslim minorities, including an equal share of public funds for religious services and education. Another member of the Patriarch's delegation urged the Commission to make reference in the new constitution to the 1924 Lausanne Treaty that  guarantees the rights of Turkey’s Greek Orthodox, Jewish and Armenian communities. He also urged the Commission to specifically define "hate crimes". The head of the Syriac Mor Gabriel Monastery Foundation also met with the Commission.

State Bills Challenge Federal Mandate On Contraceptive Coverage

AP reports today that bills have recently been introduced into state legislatures in Idaho, Missouri and Arizona that would allow insurance companies or businesses, religious or secular, to refuse to cover contraception, abortion and sterilization in their health insurance policies if they have moral objections to offering the coverage. The bills attempt to challenge the Obama administration's recent mandate regarding coverage of contraceptive services by health care plans. It is likely that the federal government would sue to block effectiveness of the state laws if they pass.