4th Circuit Upholds Released Time Program of South Carolina School District

In Moss v. Spartanburg County School District Seven, (4th Cir., June 28, 2012), the U.S. 4th Circuit Court of Appeals upheld Spartanburg's released time program that permits high school students to receive two academic credits for off-campus religious instruction offered by a private Bible school. Grades are funneled through an accredited private Christian school that reviews and monitors the program, and the grades are then transferred to the student's public school transcript. The program is authorized by the state's Released Time Credit Act. (See prior posting.) Approximately 20 out of the school's 1500 students take the religion course each year. Finding that only some of the plaintiffs had standing to challenge the program, the court went on to conclude that under Supreme Court and 4th Circuit precedent, the Spartanburg program does not violate the Establishment Clause:

Here, the School District’s released time policy takes place off campus and expressly prohibits any use of public staff or funds for its execution.... The fact that a public school accepts credits for released time courses does not alter the analysis under any one of Lemon’s three prongs in view of the neutral administrative manner adopted by the School District for accepting those credits. The School District employed a model in which primary responsibility for evaluating released time courses lay with accredited private schools, not the public schools.

[Thanks to  Stephen Ruckman and Derek Gaubatz for the lead.]

The Free Exercise Issues As To the Individual Mandate That Were Not Decided By SCOTUS Today

As has been widely reported, today in National Federation of Independent Business v. Sebelius, (Sup. Ct., June 28, 2012), the U.S. Supreme Court upheld the constitutionality of the individual mandate in the Patient Protection and Affordable Care Act (often referred to by its detractors as "Obamacare").  However the Court's opinions did not deal with narrower conscience challenges to the individual mandate.  These have generally been rejected by lower courts. The Affordable Care Act (26 USC 5000A(d)(2)) has two explicit, but narrow conscience exemptions from the mandate to buy health insurance:

(1) members of religious sects, such as the Amish, who are exempt from Social Security taxes under exiting law. These are described in Sec. 1402(g) of the Internal Revenue Code:

a member of a recognized religious sect ... [who] is an adherent of established tenets or teachings of such sect ... by reason of which he is conscientiously opposed to acceptance of the benefits of any private or public insurance which makes payments in the event of death, disability, old-age, or retirement or makes payments toward the cost of, or provides services for, medical care...

(2) members of health care sharing ministries.

Some lawsuits have unsuccessfully claimed that these exemptions violate the Establishment Clause by privileging some religious sects over others.

Beyond this, individuals who do not fit into either of these two specific groups of statutory exemptions have brought claims that their free exercise rights are violated by the individual mandate.  One type of claim is that rejected by the D.C. Circuit in Seven Sky v. Holder (see prior posting), where plaintiff alleged (see prior posting) that she:

has a sincerely held religious belief that God will provide for her physical, spiritual, and financial well-being. Being forced to buy health insurance conflicts with Seven-Sky's religious faith because she believes that she would be indicating that she is not really sure whether God will, in fact, provide for her needs, so she needs to rely on a health insurance policy as a back-up plan.

A second type of conscience objection-- also rejected by lower courts-- has been raised by those who claim that payments required under the Act will somehow be used for abortion services. An elaborate compromise adopted as part of the Act was designed to prevent this (see prior posting), and decisions such as the district court's in Liberty University Inc. v. Geithner  have held that "the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered."  A similar result was reached by at least one Circuit Court judge. (See prior posting.)"  The only mention of religious exemptions in today's opinions came in Justice Scalia's dissent as part of his argument that the individual mandate is not an exercise of Congress' taxing power. He said:

That §5000A imposes not a simple tax but a mandate to which a penalty is attached is demonstrated by the fact that some are exempt from the tax who are not exempt from the mandate—a distinction that would make no sense if the mandate were not a mandate. Section 5000A(d) exempts three classes of people from the definition of “applicable individual” subject to the minimum coverage requirement: Those with religious objections or who participate in a “health care sharing ministry,§5000A(d)(2); those who are “not lawfully present” in the United States, §5000A(d)(3); and those who are incarcerated, §5000A(d)(4). Section 5000A(e) then creates a separate set of exemptions, excusing from liability for the penalty certain individuals who are subject to the minimum coverage requirement: [e.g.] Those who cannot afford coverage.... If §5000A were a tax, these two classes of exemption would make no sense; there being no requirement, all the exemptions would attach to the penalty (renamed tax) alone.

Sheriff Can Be Sued By Rape Victim Denied Anti-Conception Pill By Religious Jail Guard

In R.W. v. Spinelli, (MD FL, June 14, 2012), a Florida federal district court denied a sheriff's motion to dismiss an official capacity suit against him under 42 USC Sec. 1983 by a woman alleging privacy and equal protection violations.  Plaintiff, R.W., was a rape victim and was prescribed two anti-conception pills at a rape crisis center. She took one there and was instructed to take the other 12 hours later.  Shortly thereafter, while investigating the rape, a police officer discovered that R.W. had an outstanding arrest warrant against her and took her to jail.  Her remaining pill was taken from her, and the only employee on duty with authority to do so refused to give it to her to take because doing so would violate the employee's religious beliefs. R.W. was allowed to take the pill the next morning just prior to her release. In an earlier decision (see prior posting), the court permitted R.W. to move ahead with her suit against the jail employee, but dismissed the claims against the sheriff in his official capacity.  Plaintiff then filed an amended complaint against the sheriff, who again sought dismissal. In moving to dismiss, the sheriff argued that the complaint did not allege that an unconstitutional official policy or custom of the county was involved. The court this time, however, disagreed, saying: "the single action of a final policy-maker can represent official government policy, even when the action is not meant to control later decisions...."  Since the sheriff had not promulgated any policy on refusing to dispense anti-conception medication, the jail employee essentially became the final policy maker on this issue. Courthouse News Service reports on the decision.

4th Circuit: Required Posting By Pregnancy Centers Is Unconstitutional Compelled Speech

In a 2-1 decision in Greater Baltimore Center for Pregnancy Concerns v. Mayor and City Council of Baltimore, (4th Cir., June 27, 2012), the U.S. 4th Circuit Court of Appeals yesterday struck down a Baltimore ordinance that requires "limited-service pregnancy centers" to post signs announcing that that they do not provide or make referrals for abortion or birth control services. The majority agreed with plaintiff, a Catholic  pregnancy center, that the law compels it to speak to clients and potential clients in a manner that it would not otherwise do. The majority found that the city has not shown a compelling interest for infringing on the Center's non-commercial speech rights in this manner. The majority explained:

Here, the record establishes, at most, only isolated instances of misconduct by pregnancy centers generally, and, as the City concedes, none by the Pregnancy Center itself. Indeed, the record contains no evidence that any woman has been misled into believing that any pregnancy center subject to Ordinance 09-252 was a medical clinic or that a woman in Baltimore delayed seeking medical services because of such a misconception. The City instead cites allegations of deceptive practices occurring in other locations or second-hand reports of "stories about harassment."

Judge King dissenting called the majority's conclusion "indefensible." He argued:

Rushing to summary judgment, the court subverted the Federal Rules of Civil Procedure ... by ... denying the City essential discovery, refusing to view in the City’s favor what evidence there is, and making untoward findings of fact, often premised on nothing more than the court’s own supposition.

Defending the city, the dissent said:

The evidence relied on by the City Council revealed that limited-service pregnancy centers were using questionable tactics to delay women from accessing abortions. Such tactics included counseling women to undergo pregnancy tests and sonograms that were scheduled weeks after their initial pregnancy center visit, and misinforming women about abortion services, including when abortions could be lawfully obtained. Such delays placed the health of women who decided to have abortions at risk....

Newsmax reports on the decision. 

Islamist Invasion of Art Show In Tunisia Raises Fears Among Secular Intellectuals

Reuters yesterday reported from Tunisia on the impact of a June 10 incident in which Islamists broke into the Printemps des Arts fair being held at Abdeliya Palace in Tunis and destroyed a few pieces of artwork to protest art they deemed insulting to Islam. This was followed by days of Islamist riots that killed one person. Among the most controversial art on display was one depicting veiled women as punching bags and another showing veiled women in a pile of stones (commenting on stoning of adultresses). The piece causing the most anger was one that spelled out "Sobhan Allah" (Glory to God) in ants. Reuters comments that this is the latest incident to raise fears among secular intellectuals that the freedoms won in the Arab Spring revolution are being slowly contracted by the religious views of zealots.  Meriem Bouderbala, one of the curators at Printemps des Arts, said: 

After the revolution, artists had a feeling of freedom. They wanted to express freely. They produced very powerful art. The artists were not expecting this reaction. That is why they feel so fragile. They turned to the government but it is not supporting them so they feel they have hit a wall.

Church's "As Applied" Zoning Challenge Dismissed For Lack of Ripeness

Woodridge Church v. City of Medina, 2012 U.S. Dist. LEXIS 87687 (D MN, June 25, 2012) is a challenge under RLUIPA, the 1st and 14th Amendments and the Minnesota constitution to Medina, Minnesota's refusal to approve a church's expansion plans.  The city's refusal was followed by a moratorium on church construction and then the creation of a new zoning district that includes the church. The church withdrew its application for a conditional use permit and filed suit when city council implemented a square footage requirement below that of the church's planned expansion. The court dismissed for lack of ripeness the church's "as applied" challenges to the city's zoning decisions since the church has not obtained a final ruling from the city on its plans. However the court permitted the church to proceed with its facial challenges to the city's zoning decisions and its damage claims growing out of the zoning moratorium.

Hungarian Reform Jewish Congregations Challenge Non-Recognition In European Court

Jewish Journal reported from Hungary that the European Union for Progressive Judaism and Hungary’s two Reform Jewish congregations on Tuesday submitted an application to the European Court of Human Rights contending that Hungary's new Church Law is illegal and discriminatory. Hungary's Constitutional Court has already rejected their claims. Under the Hungarian law, which took effect on January 1, 3 other branches of Judaism are granted official recognition, but the Reform movement is not.  The law recognizes Neolog (Hungarian Conservative), Orthodox and Status-quo (associated with Chabad-Lubavitch) congregations. (Background.)

Cert. Denied In Challenge To Firings Of Moorish American Correctional Officers

The U.S. Supreme Court on Monday denied certiorari in Bey v. New York, (Docket No. 11-1340, cert. denied 6/25/2012). (Order List.) In the case, the 2nd Circuit dismissed on res judicata grounds a suit by two former New York City correctional officers who were members of the Moorish American Religion-- which teaches that Moors are exempt from taxes. In the suit, the officers challenged on constitutional grounds their termination for filing false tax documents. The Court concluded that a prior lawsuit which plaintiffs lost was based on the same series of transactions. (See prior posting.)

German Court Says Parents May Not Decide On Religious Circumcision For Their Sons

The Algemeiner as well as the Jewish Press report that a district court in Cologne, Germany ruled this week in an appeal from a trial court's decision that parents do not have the right to decide on religious circumcision for their sons.  The court said that non-medically necessary circumcision causes "serious and irreversible interference in the integrity of the human body." The court went on to hold that circumcision "contravenes the interests of the child to decide later on his religious beliefs."  It held that the parents' rights to provide for their children and their religious freedom are not sufficient justifications for imposing the harm caused by circumcision. According to Haaretz, the case grew out of a suit brought by German authorities against a Muslim doctor after his botched circumcision on a 4-year old boy caused the boy to be rushed to an emergency room. While the court held that doctors in the future can only perform circumcision for health-related reasons, it acquitted the doctor involved in this case because it was not clear previously that his conduct was illegal. Criticizing the court's decision, Rabbi Aryeh Goldberg of the Rabbinical Center of Europe said: "The decision is contrary to human rights charter of the European Union, to which the German legal system is committed, and undermines the basic right to worship in the German Constitution."

UPDATE: The full text of the court's decision in the case is now available via UK Human Rights Blog. The original decision in German is here. An English translation is here. [Thanks to Eric Rassbach via Religionlaw listserv.]

Former Student's Challenge To Remediation Plan On Counseling LGBT Clients Dismissed

In Keeton v. Anderson-Wiley, (SD GA, June 22, 2012), a Georgia federal district court, in a lengthy opinion, dismissed claims by a former graduate student in Augusta State University's graduate counselor education program that her constitutional rights were infringed when she was dismissed for refusing to complete a required remediation plan.  The remediation requirements were imposed when graduate student Jennifer Keeton, a devout Christian, told faculty that she would not condone the propriety of homosexual relations or a homosexual identity in a counseling situation.  This position violates professional ethical standards of the American Counseling Association that require counselors to respect the diversity of their clients and avoid imposing values on them that are inconsistent with counseling goals. The court rejected both Keeton's facial overbreadth and vagueness challenges as well as her "as applied" challenges to the remediation plan. Finding no viewpoint discrimination against Keeton, the court said:

Keeton's conflation of personal and professional values, or at least her difficulty in discerning the difference, appears to have been rooted in her opinion that the immorality of homosexual relations is a matter of objective and absolute moral truth. The policies which govern the ethical conduct of counselors, however, with their focus on client welfare and self-determination, make clear that the counselor's professional environs are not intended to be a crucible for counselors to test metaphysical or moral propositions. Plato's Academy or a seminary the Counselor Program is not; that Keeton's opinions were couched in absolute or ontological terms does not give her constitutional license to make it otherwise.

The court also rejected Keeton's "compelled speech" claim, saying that when someone voluntarily chooses a profession, the person must comply with its rules and ethical requirements.  Finally the court rejected Keetons's free exercise of religion, unconstitutional condition and equal protection challenges.

The court's decision was consistent with an earlier 11th Circuit decision in the case that refused to grant a preliminary injunction because plaintiff had not shown a substantial likelihood of succeeding on the merits. (See prior posting.)  SPLC reports on the district court's latest decision.

Issues of Fact Remain On Accommodation of Employee's Sunday Observance

In Jacobs v. Scotland Manufacturing, Inc., (MD NC, June 21, 2012), a former employee who was fired for refusing to work on Sundays for religious reasons sued under Title VII of the 1964 Civil Rights Act. The company claimed that it had offered the employee an accommodation. He could use vacation time in lieu of working on Sundays. Plaintiff, however, contended that this arrangement also violates his religious beliefs. The court refused to grant summary judgment for defendants, saying that factual questions remain as to the reasonableness of the employer's proposed accommodation and as to whether other accommodations would cause the employer undue hardship. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

RI Bill To Protect Cross On War Monument To Become Law Without Governor's Signature

Last week, the Rhode Island legislature passed and transmitted to the governor House Bill 8143 Sub A (full text) which creates the "Category One Memorial Designation Commission." The Commission is charged with identifying structures, sculptures, inscriptions and icons that existed prior to 2012 that are located on government property and which have "attained a secular traditional, cultural, or community recognition and/or value." These may include memorials related to military affairs. Otherwise eligible monuments are not excluded because they have a "recognizable identification with a known or established religion." The bill is obviously aimed at protecting a memorial to World War I servicemen that features a Latin Cross and is located in the Woonsocket fire station's parking lot. The Freedom from Religion Foundation has complained that the cross violates the Establishment Clause. (See prior posting.) According to WPRI News, on Monday Gov. Chaffee sent letters to the Speaker of the House and President of the Senate indicating that the bill would become law without his signature.  He said that the bill does not change the fact that it is up to the courts to decide whether any particular monument violates Establishment Clause restrictions. 

Suit Dropped After School District Agrees To Neutral Speech Rule

Yesterday's Beaumont (TX) Enterprise reports that a lawsuit filed in April against the Nederland (TX) Independent School District by the father of a 3rd grader has now been dropped because the school district has changed its rules in response to the suit.  At issue was the refusal by a teacher at Hillcrest Elementary School to allow the student to hand out to his classmates his handwritten invitations to a meeting at a local Baptist Church of Awana Clubs, an evangelical Christian youth organization. The new school rules provide that now the school district will not discriminate against any religious or non-religious private, "student-to-student non-disruptive speech."

New Survey On Women's Rights and Religious Views In Arab Spring Countries

Gallup yesterday released a new poll on After the Arab Uprisings: Women on Rights, Religion, and Rebuilding. The survey that covered countries affected by Arab Spring uprisings showed, among other things, that

... Arab women in the countries surveyed are far more similar to the men in their respective countries than they are to fellow females in the region. The majority of women and men across countries experiencing political upheaval do want some level of religious influence in law, though people’s views of the specific role for Sharia vary widely from one country to another.... Those who want no legislative role at all for Sharia are in a small minority in every country.

The survey also reports:

Gallup generally finds few differences between those who rate religion as “important” and those that rate it as “not important” in regard to their attitudes toward women’s rights, with one exception. The results show that seven in 10 adults (69%) who find religion important support women’s right to initiate a divorce, compared with fewer than five in 10 adults (46%) who say religion is not important.

School Board's Rejection of Proposed Referendum on Religion In Schools Upheld

In Torres v. Davis, 2012 U.S. Dist. LEXIS 87446 (D NJ, June 22, 2012), a New Jersey federal district court dismissed free exercise and equal protection claims of a Camden, NJ resident who wanted the Camden Board of Education to place on the election ballot a voter referendum on 3 questions:

1) Do you ... want your Public Schools to open the daily session in prayer in a pledge of allegiance to the god we trust by the children in acknowledgment of God and His son Jesus Christ. The Prayer given to us by His Son Jesus Christ the "Our Father Which art in Heaven hollowed [sic] be Thy Name."...

2) Do you ... want a Holy Bible based curriculum in your Public Schools which teaches the truth and the presence of God as creator in alignment with our New Jersey State Constitution where we are Grateful to Almighty God and looking towards Him for a blessing unimpaired in the endeavor to properly educate our children....

3) Do you ... want those fellow Camden, NJ residents who are on probation, or parole, or incarcerated for non violent offenses their civil right to vote in Camden School District Elections as a part of the rehabilitation process....

The court concluded that the Board did not have jurisdiction to place the third issue on the ballot. As to issues 1 and 2, the court held that adoption of them would violate the Establishment Clause. The court also held that the commissioner of education and attorney general are immune from damage claims under the 11th Amendment.

Court Dismisses Suit Seeking Return of Large Donations To Monastery

In Hoyle v. Dimond, (WD NY, June 22, 2012), a New York federal district court dismissed fraud, misrepresentation, RICO, deceptive practices, false advertising and equitable claims by plaintiff Eric Hoyle who was seeking return of part or all of the over $1 million that he had donated to the Most Holy Family Monastery (MHFM).  Hoyle, who rejected his Protestant faith, became a "traditional" Catholic and joined MHFM in 2005 in part because it was consistent with his beliefs that rejected  the Vatican II changes to the Catholic Church and did not recognize post-Vatican II Popes as valid. In 2007, Hoyle left MHFM and set up his own website condemning it as heretical.  In his lawsuit, Hoyle asserted that MHFM had misrepresented its historical connections to the Benedictine Order, which her relied on in choosing it. The court concluded:

... [E]ach of plaintiff’s claims is based on his assertion that the defendants misrepresented their status as Benedictine monks and the affiliation of MHFM with the Order of Saint Benedict.  Questions regarding the establishment of MHFM as a Benedictine community and its current identification as a “traditional” Catholic Benedictine monastery are matters of religious doctrine over which the court has no jurisdiction.  Moreover, plaintiff has failed to raise a genuine issue of material fact regarding the establishment of MHFM.

Today's Military's Gay Pride Event Criticized By Christian Chaplains' Group

As reported by God and Country blog, today the Pentagon is hosting, for the first time, an event celebrating LGBT Pride Month. (Background from AP).The publicity for the event stresses diversity as a great strength.  The Chaplain Alliance for Religious Liberty, a group made up primarily of retired military chaplains representing Christian chaplain endorsing organizations, last week issued a statement condemning the decision by the Department of Defense to sponsor the event, saying:

The details of how the military will celebrate have not been made public, but the Pentagon announced Friday that Defense Secretary Leon Panetta wants to honor the contributions of homosexual service members. Ironically, although DoD makes attempts to strengthen traditional families, it has never promoted a “heterosexual month” to honor the contributions of heterosexual members who make up at least 97 percent of the military.

Cert. Denied In Mt. Soledad Cross Case

The U.S. Supreme Court today denied certiorari in Mount Soledad Memorial Association v. Trunk (Docket No. 11-998) and the companion appeal in United States v. Trunk (Docket No. 11-1115) (Order List.) 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.) Justice Alito filed a statement explaining his reasons for going along with today's denial of review by the Supreme Court, saying in part:

The current petitions come to us in an interlocutory posture. The Court of Appeals remanded the case to the District Court to fashion an appropriate remedy, and, in doing so, the Court of Appeals emphasized that its decision “d[id] not mean that the Memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the Memorial].”.....  Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will be required to take, I agree with the Court’s decision to deny the petitions for certiorari.  

Today Is 50th Anniversary of Engle v. Vitale School Prayer Decision

Today is the 50th anniversary of the U.S. Supreme Court's decision in Engle v. Vitale (1962) which held unconstitutional under the Establishment Clause New York's requirement that a non-denominational prayer composed by the state Board of Regents be recited in public school classrooms at the beginning of each school day.  This was the first in a series of cases that barred school authorized prayer and Bible-reading in the public schools. Yesterday's Deseret News, marking the anniversary, reviews the impact of the Engle decision.

Same-Sex Couple Sues NY Catholic Hospital Over Family Health Benefits

The Advocate reported Friday on a class action lawsuit filed last week in federal district court in New York by a married lesbian couple who claim that a Catholic hospital illegally discriminated against them by refusing them the same family health benefits offered to other employees. The suit was filed against St. Joseph Medical Center in Yonkers, NY, as well as against the insurance company that administers the hospital’s self-insurance plan.  In a statement on the case, the New York State Catholic Conference said in part:

In 2011, when Governor Andrew Cuomo made the redefinition of marriage his top legislative priority, we warned not only that such action would have negative consequences for society, but also that it would infringe on the religious liberty of Catholic employers..... As we stated when the law was passed, the so-called "religious exemption" language included in the bill was insufficient to protect religious institutions.

(See prior related posting.)