Police Officer Sues Claiming He Was Fired Because He Converted To Islam

A former Norton, Ohio police officer filed suit in federal district court in Ohio yesterday claiming that he was fired because of his conversion to Islam. The Akron Beacon Journal reports that according to plaintiff Nicholas Matheny, Police Chief Thad Hete found out about his conversion in September 2010 when Matheny handed out wedding invitations. When Matheny returned from his honeymoon, Hete and the city's chief administrator tried to convince him to resign, threatening to place backdated warnings in his police file. When Matheny refused, he was fired.

Austria Celebrates 100th Anniversary of Its Inclusive Law on Islam

Last weekend, senior Austrian government officials and members of Austria's Islamic community attended ceremonies to mark the 100th anniversary of Austria's Law on Islam.  BBC reports that the law is seen as a model of tolerance in Europe.  The law as originally enacted provided:

The adherents of Islam shall be granted recognition as a religious community in the kingdoms and crown-lands represented in the Imperial Council in the meaning of the Constitutional Law of 21 December, 1867... The religious community of the adherents of Islam according to the Hanafite rite shall... enjoy the same legal protection as is granted to other legally recognised religious communities. The doctrines of Islam, its institutions and customs shall enjoy the same protection too, unless they are in contradiction to state law.

The law, which was later expanded to include other forms of Islam in addition to Hanafi, came into force in 1912 as an attempt to integrate Muslim Bosnian soldiers into the Habsburg Army.

Ballot Title For Minnesota Same-Sex Marriage Ban Amendment Creates Controversy

Minnesota Secretary of State Mark Ritchie announced last week that the title of the proposed state constitutional amendment banning recognition same-sex marriage (full text) that will appear on the November ballot will be "Limiting the Status of Marriage to Opposite Sex Couples."  According to the Minneapolis Star-Tribune, backers of the amendment are furious. They had wanted the ballot title to read: "Recognition of Marriage Solely Between One Man and One Woman"-- the title chosen by the state legislature. Even though the legislature prescribed a title for the ballot measure, the governor vetoed the bill containing the proposed amendment. (Veto letter.) However the veto does not prevent the measure from appearing on the ballot because the Minnesota Constitution Art. IX provides that amendments are submitted to the voters by a majority of the members of each house. However apparently the portion of the bill setting the title for the ballot measure is treated as ordinary legislation so that the veto did invalidate that section. So then under Minnesota Statutes Sec. 204D.15, the choice of a title falls to the secretary of state, who must submit it to the attorney general for approval. Backers of the amendment believe that the new title may influence voters who do not like government restrictions to vote against the measure. They are considering whether to file a lawsuit over the title. [Thanks to Alliance Alert for the lead.]

Recent Articles of Interest

From SSRN:

• Steven H. Resnicoff, Extraordinary Sources of Jewish Law: the Example of Capital Punishment,, (Steven H. Resnicoff, Chapter 8 of Understanding Jewish Law, LexisNexis, 2012).
• Rene Provost, Magic and Modernity in Tintin au Congo (1930) and the Sierra Leone Special Court, (June 25, 2012).
• Nicolai N. Petro, The Role of the Orthodox Church in a Changing Russia, (ISPI Analysis #121, Institute for the Study of International Politics, Milan, Italy, June 2012).
• David A. Grenardo, Samuel D. Davis and Thomas M. Gutting, Take One Step Forward: Federal Courts Continue to Find that Volunteers are Shielded from Retaliation Based on Protected Speech Under the First Amendment, (First Amendment Law Review, Vol. 10, No. 1, 2011).
• Lewis D. Solomon, God and Human Destiny: A Jewish Perspective, (GWU Legal Studies Research Paper No. 2012-53).
• Richard S. Myers, Same-Sex Marriage, Education, and Parental Rights, (Brigham Young University Education and Law Journal, Vol. 2011, No. 2).
• Richard S. Myers, Assessing the Legal Bases for Conscientious Objection in Healthcare, (Life and Learning XVIII: The Proceedings of the Eighteenth University Faculty for Life Conference 57-82, J. Koterski ed. 2011).
• Mehmet Asutay and Zulkifli Bin Hasan, An Analysis of the Courts’ Decisions on Islamic Finance Disputes, (ISRA International Journal of Islamic Finance, 3 (2), 41-71, 2011).
• Kimberley Brownlee and Richard Child, Can the Law Help Us to Be Moral?, (Warwick School of Law Research Paper No. 2012/17).
• Kimberley Brownlee, Conscientious Objection and Civil Disobedience, (Warwick School of Law Research Paper No. 2012/15).

Connecticut Mosque Sues Over Zoning Refusal

The Hour reports that Norwalk, Connecticut's Al-Madany Islamic Center last week filed a suit in federal district court charging that its 1st Amendment free exercise rights, its rights under RLUIPA and under Connecticut's Religious Freedom Act were violated when the Norwalk Zoning Commission rejected its plans for a new mosque and multipurpose hall. The lawsuit claims that the usual factors that lead to zoning approval were discounted in the face of strong discriminatory opposition to the zoning application.

UNESCO Places Church of Nativity On Heritage List In Move With Political Ramifications

UNESCO announced last week that the Church of the Nativity, known to Christians as the birthplace of Jesus, has been added to UNESCO's World Heritage List and also to UNESCO's "List of World Heritage in Danger" because of damage to the Church from water leaks. UNESCO's World Heritage Committee voted 13-6 with 2 abstentions in favor of the designation.  As with much in the region, the move has been viewed by many as more jockeying in the Israeli-Palestinian dispute.  As reported by Haaretz, the Church was added to UNESCO's list through an emergency procedure rather than through the regular 18-month process.The United States, UNESCO's experts committee, and the three churches that are custodians of the site all preferred use of the lengthier regular process. Palestinians see the quick action as an affirmation of Palestinian sovereignty over the site, while Israel sees it as evidence that UNESCO was acting for political rather than cultural reasons. Last year after the Palestinian Authority failed to obtain full membership status in the United Nations as a whole, UNESCO voted to admit Palestine as a full member, prompting United States cutoff of funding to UNESCO. (Background.)

Cert. Petition Filed In Defense of Marriage Act Challenge

A petition for certiorari (full text) was filed Friday in Bipartisan Legal Advisory Group of the U.S. House of Representatives v. Gill. In the case, decided by the 1st Circuit under the title Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, the appeals court held unconstitutional Section 3 of the Defense of Marriage Act that denies federal benefits to same-sex couples (and surviving same-sex spouses) lawfully married in Massachusetts and other states. (See prior posting.)  The Bipartisan Legal Advisory Group that filed the cert. petition was intervenor-appellant in the court of appeals below.  SCOTUS Blog reports on the filing of the cert. petition. [Thanks to Alliance Alert for the lead.]

German Political Leaders Say Religious Circumcision Should Be Protected

According to AP, Germany's foreign minister Guido Westerwelle moved today to reassure critics after a controversial German court ruling last week held that young boys' rights were infringed when parents decided to have them circumcised for religious reasons. Westerwelle said:

The free exercise of religion is protected in Germany. That includes religious traditions. All our partners in the world should know that.

Volker Beck, an opposition Green Party senior lawmaker, said that it should be clarified that circumcision on religious grounds is justified as long as hygienic and medical standards are met. However he left open the question of whether this clarification should be obtained through the courts or by legislation.

Meanwhile YNet News reports that Jewish Hospital in Berlin has decided to suspend all circumcisions of children for religious reasons until the legal situation is clarified.

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.]

Recent Prisoner Free Exercise Cases

In Walker v. Cate, 2012 U.S. Dist. LEXIS 86987 (ED CA, June 21, 2012), a California federal magistrate judge recommended dismissing claims by a white Christian/Odinist inmate that his rights under the free exercise clause and RLUIPA were violated when he was classified as eligible for double celling with inmates of other races. Plaintiff claimed that his religious beliefs forbid him from sharing a cell with someone of another race.

In Vann v. Fischer, 2012 U.S. Dist. LEXIS 87620 (SD NY, June 20, 2012), a New York federal district court permitted an inmate who was a practitioner of Santeria to move forward on free exercise, RLUIPA and equal protection claims. Plaintiff alleged that he was not allowed to wear Santeria beads.

In Davis v. Armenta, 2012 U.S. Dist. LEXIS 88381 (ED CA, June 25, 2012), a California federal magistrate judge dismissed as frivolous an inmate's claim for $999 trillion in damages after the sheriff tore down a picture of a Thompson sub-machine that hung on plaintiff's bunk bed. Plaintiff claimed that the image of the sub-machine gun was his god/goddess.

In La Vell Harris v. Lake County Jail, 2012 U.S. Dist. LEXIS 89306 (ND CA, June 27, 2012), a California federal magistrate judge dismissed with leave to amend an inmate's free exercise claim against a jail nurse. Plaintiff claimed his religion prevents him from taking pain medication (other than marijuana), that he cannot stand or walk without pain, and that he was denied a wheel chair. His claim of religious and racial discrimination was dismissed with prejudice.

In Blum v. Clements, 2012 U.S. Dist. LEXIS 89813 (D CO, June 28, 2012), a Colorado federal magistrate judge, while dismissing many of plaintiff inmate's claims, permitted plaintiff to move ahead on a free exercise and RLUIPA complaint that he was required to surrender various art works, including religious art, and was terminated from the sex offender treatment program for refusing to write essays on how images of minors were high risk and how he used "religiosity" as a tactic to avoid treatment.

In Villanueva v. River, 2012 U.S. Dist. LEXIS 89399 (D SC, June 28, 2012), a South Carolina federal district court held that an inmate's free exercise claims are not cognizable in a habeas corpus proceeding. Plaintiff complained that federal prison officials refused to accommodate his "Kingism" religious beliefs by not allowing him to wear his religion's colors. He sought prison recognition of his religion.

In Quinn v. Knab, 2012 U.S. Dist. LEXIS 89479 (SD OH, June 27, 2012), an Ohio federal magistrate judge recommended that an inmate, a white separatist "Christian Identity" adherent, be allowed to proceed with his free exercise and RLUIPA challenges to prison officials' refusal to permit him to take the Nazarite vow which entails restrictions on cutting hair, foods consumed, and working on the Sabbath. The court rejected plaintiff's equal protection and retaliation claims.

In Sousa v. Wegman, 2012 U.S. Dist. LEXIS 90023 (ED CA, June 27, 2012), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that prison officials refused to accommodate his Mexican Indian (Aztec/Mayan/Toltec) religion and instead required him to use an existing Native American religious services program.

In Crosby v. Lee, 2012 U.S. Dist. LEXIS 90090 (WD VA, June 28. 2012), a Virginia federal district court dismissed without prejudice a Muslim inmate's suit against a jail superintendent complaining that he was deprived of the opportunity to attend Friday Jumm'ah services, he was denied his prayer rug, and he was not alerted when meals contained pork.

In Johns v. Lemmon, 2012 U.S. Dist. LEXIS 89901 (ND IN, June 26, 2012), an Indiana federal district court permitted plaintiff, who claimed to be an "observant Jewish prisoner," to proceed with his suit alleging that a fundamental tenet of his religious beliefs is that he cannot eat food cooked on Saturday, and that prison officials have stopped their previous practice of providing him his food for Saturday on Friday night.

Church Autonomy Doctrine Does Not Bar Defamation and Breach of Fiduciary Duty Claims

In Bilbrey v. Myers, (FL App., June 29, 2012), a Florida state appellate court reversed a trial court's reliance on the church autonomy doctrine and permitted a former church member, Darrel Bilbrey, to proceed with his defamation and breach of fiduciary duty claims against the church's pastor David Myers. Originally Myers sponsored Bilbrey to obtain a license to minister in the Pentecostal church.  Subsequently Myers came to believe that Bilbrey was gay and claimed that  Bilbrey's upcoming marriage was a sham to hide his homosexuality. Myers made these charges of homosexuality during a meeting with Bilbrey and three others; in a sermon; and to Bilbrey's pastor in Michigan after Bilbrey moved and sought to have his ministerial license transferred there.  The court held:

The First Amendment does not grant Myers, as pastor of FPC, carte blanche to defame church members and ex-members. If untrue, the statement that a person is a homosexual has long been recognized as potentially defamatory outside the context of any religious doctrine or practice. This claim can be adjudicated without implicating the First Amendment and was improperly dismissed on the basis of the church autonomy doctrine.... 

As to Bilbrey's claim for breach of fiduciary duty—based on allegations that Myers had a fiduciary duty to Bilbrey because of the pastor/church member relationship and the internet filtration and accountability program [in which Myers was Bilbrey's "accountability partner"]—the First Amendment does not necessarily bar such claims.

Plaintiff's intentional infliction of emotional distress and invasion of privacy claims were dismissed.

Michigan Outlaws Disrupting Religious Services

As reported by WLNS News, last Monday (legislative history) Michigan Governor Rick Snyder signed HB 5560 (full text) making it a misdemeanor to enter or remain on property, or obstruct entry or exit to property, with the intent of disrupting individuals meeting there in the pursuit of their free exercise of religion. First offenders may be sentenced to up to 93 days in jail, $1000 fine or 100 hours of community service.

District Court's Permanent Injunction Lets Churches Rent New York School Building Space On Weekends

In Bronx Household of Faith v. Board of Education of the City of New York, (SD NY, June 29, 2012), a New York federal district court issued a permanent injunction barring the New York City board of education from enforcing a rule that keeps churches from renting out space in school buildings for their weekly services. While generally allowing community groups to rent out space outside normal school hours for meetings and activities, Chancellor’s Regulation D-180 precludes rental by churches that wish to use the space for worship services or wish to use the school space as a house of worship. Earlier this year, the court granted a preliminary injunction in the 17-year long dispute over the regulation. (See prior posting.) In granting the permanent injunction the court held that the Regulation violates plaintiff’s free exercise rights, saying that the rule imposes “a substantial burden on Plaintiffs’ free exercise rights,” while the school board raises only “a misperceived Establishment Clause concern.”.

The court found, further, that as administered Regulation D-180 violates the Establishment Clause by involving Board of Education officials in determining whether or not a group’s proposed activities amount to religious worship or use of the school building as a house of worship. This type of Board review requires state officials to inquire into religious doctrine. Alliance Defense Fund issued a press release announcing the court’s decision. The New York Times yesterday reported on the decision. Bloomberg News reports that the city plans an immediate appeal.

Supreme Court Denies Cert. In Free Exercise Challenge To Affordable Care Act

After yesterday's historic decisions, the U.S. Supreme Court today denied certiorari (Order List) in other cases involving challenges to the Patient Protection and Affordable Health Care Act. The petition for certiorari (full text) in at least one of those cases, Docket No. 11-679, Seven-Sky v. Holder, had raised a free exercise challenge to the ACA. In the case, the D.C. Circuit Court of Appeals had given short shrift to challengers' Religious Freedom Restoration Act argument, holding that appellants had "failed to allege facts showing that the mandate will substantially burden their religious exercise." (See prior posting.) For a lengthier discussion of free exercise challenges to the individual mandate, see my posting from yesterday.

Religious Interrogatories Quashed On Privacy and Free Exercise Grounds

In Guthrey v. California Department of Corrections & Rehabilitation, 2012 U.S. Dist. LEXIS 89174 (ED CA, June 27, 2012), a California federal magistrate judge sustained objections by defendants in a religious discrimination lawsuit to interrogatories put forward by plaintiff Raymond Guthrey regarding the individual defendant's religious beliefs.  Guthrey, an adherent of the Ananda Marga faith, was prevented by Department of Corrections employee Michael Pate, Jr. from participating in the Department of Corrections Retired Annuitant Program. Guthrey, who had been approved as a Correctional Counselor in that program, contended that Pate's actions were motivated, at least in part, by his dislike of Guthrey's religion.  Seven of plaintiff's interrogatories asked about Pate's religious beliefs and attendance at religious services. Plaintiff claimed that answers would lead to information regarding defendant's likely level of religious and racial intolerance. The court disagreed, holding that the interrogatories are irrelevant, and that even if they are not, defendant's right to privacy and the 1st Amendment protection of his religious associations allow him to refuse to answer. The court said in part:

[I]f this Court were to become a "sword" of Title VII plaintiffs used to gain access to unfettered inquisitions into an individual's most private and intimate religious views, a "chilling" impact on religious associational rights would result. Plaintiff asks this Court to compel disclosure so that the information may be used to attain monetary damages for such religious beliefs. Such circumstances would substantially burden both the individual's and the group's ability and inclination to freely pursue their religious beliefs and practices.

The court did allow Guthrey to pursue interrogatories regarding any past religious discrimination complaints against defendants, but allowed defendants to omit the names of the complainants in order to protect their privacy.

3rd Circuit: Ousted Church Member May Not Sue On Behalf of Church

In Askew v. Trustees of the General Assembly of the Church of the Lord Jesus Christ of the Apostolic Faith, Inc., (3d Cir., June 28, 2012), the U.S. 3rd Circuit Court of Appeals held that plaintiff, a member of a dissident faction in a Church, lost standing to continue a lawsuit charging Church leaders with misappropriation of assets once plaintiff's Church membership had been terminated by the Church's religious leader. Joseph Askew filed suit against Bishop Kenneth Shelton in January 2009. In August 2009, Shelton executed a sworn declaration stating that Askew and other dissidents had not been recognized as Church members since 1992 when the split occurred. The court held that Bishop Shelton's authority to excommunicate members "falls squarely within the realm of matters insulated from civil court review." The court added that "consistent with the nonentanglement principle,we accept [Shelton's] pronouncement as conclusive. Any other approach would embroil this Court in a two-decade-long intra-Church battle central to its mission and spiritual identity." The court went on to hold that once Askew had lost his Church membership, he no longer had standing to assert claims alleging harm to the Church. The court added:

A doctrinally grounded decision made during litigation to insulate questionable church actions from civil court review may indeed raise an inference of fraud or bad faith.... Under those circumstances, the integrity of the judicial system may outweigh First Amendment concerns such that a civil court may inquire into the decision.  But we find no basis for the inference here.

The Philadelphia Inquirer reports on the decision.

Diocese and Bishop Sued Over Sexual Abuse of Woman In Deliverance and Exorcism Sessions

In Arlington, Virginia last week, a woman filed suit in state court against the Catholic Diocese of Arlington, the bishop responsible for the diocese, and two pro-life organizations, seeking to hold them liable for injuries plaintiff suffered when she was sexually abused by a priest in the course of Spiritual Deliverance and the rite of exorcism. The suit seeks $5.35 million in damages. The complaint (full text) in Doe v. Catholic Diocese of Arlington, (VA Cir. Ct., filed 6/19/2012), alleges that plaintiff signed an "Agreement for spiritual help" with a priest, Thomas Enteneuer, under which he was to apply the spiritual resources of the Church to liberate plaintiff from a demonic infestation of unclean spirits. As Enteneur's sessions with plaintiff progressed over a two year period, he touched and kissed her sexually, telling her that he was blowing the Holy Spirit into her. He also digitally penetrated here. Enteneur eventually paid for moving plaintiff closer to him, and hired her through pro-life organizations he headed. The suit claims that the Diocese and related defendants should be held liable for Enteneur's actions.  Plaintiff alleged claims for assault, battery, intentional and negligent infliction of emotional distress, negligent entrustment and negligent retention. Courthouse News Service and the Huffington Post report on the lawsuit. According to the Palm Beach Post, other women have made similar charges against Eneneur, who has been recalled by his Palm Beach Diocese.

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.