Hobby Lobby Challenges ACA Contraceptive Coverage Mandate On Religious Grounds

Yesterday the Becket Fund announced yet another lawsuit challenging on free exercise grounds the contraception coverage mandate under the Affordable Care Act.  This time the plaintiffs are Hobby Lobby, a privately held chain of hobby supply stores that operates over 500 stores in 41 states with a total of over 13,000 employees, and Mardel, Inc., a chain of 35 bookstores in 7 states that sells Christian themed materials.  Both companies are owned by the Green family who are Evangelical Christians. The complaint (full text) in Hobby Lobby Stores, Inc. v. Sebelius, (WD OK, filed 9/12/2012), sets forth the Green family's religious beliefs opposing furnishing of coverage for "abortion-causing" contraceptive drugs and IUDs, such as Plan B and Ella. They do not object to providing coverage for other contraceptives.  The complaint sets out at length the manner in which the owners' Christian values are reflected in their operation and management of Hobby Lobby. The suit alleges violation of the 1st and 5th Amendments, the Religious Freedom Restoration Act and the Administrative Procedure Act.

Egypt Plans Legal Action Against Makers of Anti-Muslim Film

Reuters reports that Egyptian President Mohamed Mursi has asked the Egyptian embassy in Washington, D.C. to take legal action in the U.S. against the makers of the film Innocence of Muslims. The film was cited as the reason for attacks on the U.S. Embassy in Egypt yesterday.

U.S. Embassy's Initial Statement Criticizing Anti-Muslim Video Leads To Political Controversy

As reported by CBS News, the statement initially issued by the U.S. Embassy in Cairo, Egypt yesterday as demonstrators outside it began to protest an anti-Muslim film made in the United States has created a political controversy.  The Embassy statement read as follows in full:

The Embassy of the United States in Cairo condemns the continuing efforts by misguided individuals to hurt the religious feelings of Muslims – as we condemn efforts to offend believers of all religions. Today, the 11th anniversary of the September 11, 2001 terrorist attacks on the United States, Americans are honoring our patriots and those who serve our nation as the fitting response to the enemies of democracy. Respect for religious beliefs is a cornerstone of American democracy. We firmly reject the actions by those who abuse the universal right of free speech to hurt the religious beliefs of others.

Then, after word also came of attacks on the U.S. Consulate in Libya, but before it was known that U.S. Ambassador J. Christopher Stevens had been killed, Republican nominee Mitt Romney issued the following statement:

I'm outraged by the attacks on American diplomatic missions in Libya and Egypt and by the death of an American consulate worker in Benghazi.

It's disgraceful that the Obama Administration's first response was not to condemn attacks on our diplomatic missions, but to sympathize with those who waged the attacks.

Then, as reported by ABC News, the Obama administration moved to distance itself from the statement issued by the Cairo embassy. An administration official said: "no one in Washington approved that statement before it was released and it doesn’t reflect the views of the U.S. government."

This morning, Mitt Romney renewed his criticism in a statement (full text) delivered in Jacksonville, Florida. He said in part:

We have confidence in our cause in America. We respect our Constitution. We stand for the principles our Constitution protects. We encourage other nations to understand and respect the principles of our Constitution, because we recognize that these principles are the ultimate source of freedom for individuals around the world.

I also believe the administration was wrong to stand by a statement sympathizing with those who had breached our embassy in Egypt, instead of condemning their actions. It’s never too early for the United States government to condemn attacks on Americans and to defend our values.

The White House distanced itself last night from the statement, saying it wasn’t cleared by Washington. That reflects the mixed signals they’re sending to the world.

Then in response to a reporter's question, Romney added:

The president takes responsibility not just for the words that come from his mouth, but also for the words that come from his ambassadors , from his administration, form his embassies, from his state department. They clearly sent mixed messages to the world. The statement that came from the administration — and the embassy is the administration — the statement that came from the administration was a statement which is akin to apology. And I think was a severe miscalculation. They clearly ...sent mixed messages to the world.

 Meanwhile, at the White House today, President Obama released a statement which reads in part:

I strongly condemn the outrageous attack on our diplomatic facility in Benghazi.... While the United States rejects efforts to denigrate the religious beliefs of others, we must all unequivocally oppose the kind of senseless violence that took the lives of these public servants.

California Developer Behind Film That Triggered Attacks In Egypt and Libya

Fox News reports today that Sam Bacile, who wrote and directed the controversial film Innocence of Muslims (YouTube trailer for film) went into hiding Tuesday after the film was blamed in the attacks on the U.S. embassy in Egypt and the U.S. consulate in Libya. (See prior posting.) Bacile said he intended the film to be provocative, describing Islams as "a cancer." Bacile is a California real estate developer who identifies himself as an Israeli Jew. He says he financed the $5 million film with donations from more than 100 Jewish donors.

Israeli Court Rejects Reception Hall Owners' Religious Objections To Same-Sex Marriage

According to Haaretz today, the Jerusalem Magistrate's Court has for the first time under Israeli law held that owners of a reception hall may not refuse on religious grounds to host a same-sex wedding reception. The court awarded damages of 60,000 NIS ($15,196 US) and imposed 20,000 NIS in legal fees and court costs on the owners of the reception hall who are members of a sect of Messianic Jews. A lesbian couple, Tal Ya'akovovich and Yael Biran, booked the hall for a reception, but the owners canceled the reservation when they realized the reception was for a same-sex couple. The owners say that based on verses from the Old and New Testaments, they believe that homosexuality is an "abomination." The court refused to accept the owners' claim that their business has a religious character.  The court said:

Every person who opens a public business in Israel should know that they must serve the whole public equally, without discrimination, according to laws, which cover sexual orientation as well. As soon as the defendants opened their doors to all, they cannot close them for those who they believe do not meet the requirements found in the Bible or New Testament, thereby damaging their dignity and sensitivities.

The court also said:

Rejection, verbal abuse, and humiliation of another based on their sex or sexual orientation constitutes sexual harassment. Sexual harassment does not only include sexual exploitation, but also, and perhaps principally, ridiculing another person for their sex or sexual orientation… and in this case, the plaintiffs were ridiculed because of their sexual orientation

Virginia Grants Over 7,000 Religious Exemptions From Compulsory Education

Code of Virginia § 22.1-254 generally requiring school attendance by children goes on to provide:

A school board shall excuse from attendance at school: 

1. Any pupil who, together with his parents, by reason of bona fide religious training or belief is conscientiously opposed to attendance at school. For purposes of this subdivision, "bona fide religious training or belief" does not include essentially political, sociological or philosophical views or a merely personal moral code....

Virginia is only one of 4 states that has a specific religious exemption, and is the only state that has no explicit alternative educational requirement for those granted an exemption.  Yesterday's Charlottesville (VA) Daily Progress reports that a study by the Child Advocacy Clinic at the University of Virginia law school found that 7,296 children were granted exemptions under this provision in the 2010-11 school year. This is up from 5,479 in the previous year. While the student's views, as well as those of his or her parents are supposed to be considered by the local school board in granting exemptions, the study found that the schools had contact with the students involved in only 10% of the cases, and in less than 1% had direct contact with the student. Almost 95% of the school boards said they had never denied a request for exemption.

Anti-Muslim Video Cited In Attacks On U.S. Embassies In Egypt and Libya

The U.S. embassy in Egypt and the U.S. consulate in Libya were attacked yesterday, by demonstrators citing the movie "Innocence of Muslims" as the reason. Reuters reports that U.S. ambassador to Libya, Christopher Stevens and 3 staff members were killed in a rocket attack on their car as they were being driven from the consulate building to a safer location..  The New York Times reports these details on the video:

The mobs were set off by Egyptian media reports about a 14-minute trailer for the video, called “Innocence of Muslims,” that was released on the Web. The trailer opens with scenes of Egyptian security forces standing idle as Muslims pillage and burn the homes of Egyptian Christians. Then it cuts to cartoonish scenes depicting the Prophet Muhammad as a child of uncertain parentage, a buffoon, a womanizer, a homosexual, a child molester and a greedy, bloodthirsty thug.

The trailer was uploaded to YouTube by Sam Bacile, whom The Wall Street Journal Web site identified as a 52-year old Israeli-American real estate developer in California. He told the Web site he had raised $5 million from 100 Jewish donors to make the film. “Islam is a cancer,” Mr. Bacile was quoted as saying.

The video gained international attention when a Florida pastor began promoting it along with his own proclamation of Sept. 11 as “International Judge Muhammad Day.”

In a statement on Tuesday, the pastor, Terry Jones of Gainesville, Fla., called the film “an American production, not designed to attack Muslims but to show the destructive ideology of Islam” and said it “further reveals in a satirical fashion the life of Muhammad.”

In a statement (full text) issued yesterday, Secretary of State Hillary Rodham Clinton said in part:

I condemn in the strongest terms the attack on our mission in Benghazi today.... Some have sought to justify this vicious behavior as a response to inflammatory material posted on the Internet. The United States deplores any intentional effort to denigrate the religious beliefs of others. Our commitment to religious tolerance goes back to the very beginning of our nation. But let me be clear: There is never any justification for violent acts of this kind.

6th Circuit: Policeman's Prayer With Defendant Not Cause of Incriminating Statements

In United States v. Wynn, (6th Cir., Sept. 7, 2012), the U.S. 6th Circuit Court of Appeals refused to suppress incriminating statements made by defendant, Kenneth Wynn, who was convicted of firearms possession violations.  Wynn argued that his statements were made after a police officer invited him to pray, that this constituted a custodial interrogation, and he had not received Miranda warnings.  The district court however had found that the incriminating statements were made as an emotional response to Wynn's girlfriend's refusal to speak with him when he was sitting in a police car, not in response to any prayer or statement by the police.

2nd Circuit Affirms Dismissal of Dissident Hasidic Group's Discrimination Claims Against Kiryas Joel

In Kiryas Joel Alliance v. Village of Kiryas Joel, (2d Cir., Sept. 10, 2012), the U.S. 2nd Circuit Court of Appeals affirmed a New York federal district court's dismissal of a lawsuit filed by a dissident faction of the Satmar Hasidic sect living in Village of Kiryas Joel, New York. Plaintiffs reject the authority of the sect's current Grand Rebbe, Aron Teitelbaum, who leads the dominant religious organization in the Village, Congregation Yetev. Plaintiffs claim that because of their refusal to accept the Grand Rebbe, they have been discriminated against in various ways by the Village, which is run by Congregation Yetev members. The court dismissed plaintiffs' claims of discriminatory application of zoning law to them on res judicata grounds. It held that plaintiffs lack standing to assert certain claims of injury to non-parties to the litigation. It rejected plaintiffs' equal protection religious discrimination claims, finding that plaintiffs had not shown that defendants were motivated by religious, as opposed to political, differences. Finally the court also rejected plaintiffs' Establishment Clause and conspiracy claims.

State Court Refuses To Enforce Mahr Agreement In Divorce Action

In Soleimani v. Soleimani, (KA Dist. Ct., Aug. 28, 2012), a divorce action, a Kansas state trial court refused to enforce a mahr agreement-- an Islamic premarital contract-- under which the wife claimed she was entitled her to $677,000 from her husband.  The court said in part:

The parties agreed in the Pretrial Order to the application of Kansas law.  By urging the Court to adopt and interpret a mahr contract that is written in Farsi and dictated by interpretations of Iranian and/or religious law, the Court would be compelled to apply a contract 1) it cannot read and 2) that is contrary to the public policy of Kansas law....

Another cautionary concern in enforcing a mahr agreement is that they stem from jurisdictions that do not separate church and state, and may, in fact, embed discrimination through religious doctrine. This, in turn, creates an obvious tension between the Establishment and Equal Protection Clauses under the federal constitution [and similar state provisions]....

Perpetuating such discrimination under the guise of judicial sensitivity to Establishment Clause prohibitions would, in effect, abdicate the judiciary’s overall constitutional role to protect such fundamental rights.... Even assuming this Court could interpret the contract, it would then be put in the dilemma of fashioning a remedy under a contract that clearly emanates from a legal code that may be antithetical to Kansas law.  

Volokh Conspiracy has more on the decision. [Thanks to Steven H. Sholk for the lead.]

Iranian Pastor, Originally Sentenced To Death, Is Released From Custody

According to the London Mail, Iranian Christian pastor Youcef Nadarkhani has been released from prison after extensive pressure from foreign governments.  Last year, Nadarkhani (who was born to Muslim parents) was convicted by a provincial court of apostasy and sentenced to death. On appeal, Iran's Supreme Court upheld the death sentence, but remanded to the lower court for re-examination of  whether Nadarkhani had been a practicing Muslim adult before converting to Christianity. The Supreme Court also said that the death sentence could be overturned if Nadarkhani recanted. However the 34-year-old pastor refused to do so. (See prior posting.)  At a hearing on Saturday, charges against Nadarkhani were reduced to evangelizing Muslims, which carries a 3-year sentence.  He was released from custody for time served. [Thanks to Pew Sitter for the lead.]

Florida Democratic County Official Resigns Over His Remarks About Christian Supporters of Israel

The Palm Beach Post reports that Palm Beach County, Florida, Democratic Party Chairman Mark Alan Siegel resigned Friday, two days after making controversial remarks about pro-Israel Christians.  Interviewed at the Democratic National Convention by Patriot Update's Scottie Hughes, Siegel-- who is Jewish-- said of Christians who support Israel:

They’re not our friends. They want Israel to pursue policies which are antithetical with its security and existence. The worst possible allies for the Jewish state are the fundamentalist Christians, who want Jews to die and convert so they can bring on the second coming of their Lord. It is a false friendship. They are seeking their own ends and not ours.

After initially saying that he would merely take a leave of absence, Siegel then resigned completely, saying: "My comments merely served as a distraction to the good work of Democrats in Palm Beach. Again, I express my deepest apologies to anyone I may have offended."

Presbyterian Congregation's Property Belongs To Parent Church

In Windwood Presbyterian Church, Inc. v. The Presbyterian Church (USA), (TX App., Aug. 30, 2012), a Texas appeals court held that under both the rule of deference to decisions of a parent hierarchical church and the application of neutral principles of law, the property of a Houston, Texas Presbyterian congregation belongs to the parent church. The court concluded:

by joining the PCUSA in 1983 and remaining a member of that hierarchical church, Windwood has assented to following PCUSA’s constitution, which includes a trust provision over Windwood’s property in PCUSA’s favor.

Recent Articles of Interest

From SSRN:

• Christopher C. Lund, The Future of the Establishment Clause in Context: A Response to Ledewitz, (Chicago-Kent Law Review, Vol. 87, p. 767, 2012, symposium).
• Nicholas Walter, Religious Arbitration in the United States and Canada, (Santa Clara Law Review, Vol. 52, No. 2, 2012).
• Michael A. Helfand, Religion's Footnote Four: Church Autonomy as Arbitration, (Minnesota Law Review, Vol. 97, Forthcoming).
• Robert W. Nicholson, Managing the Divine Jurisdiction: Sacred Space and the Limits of Law on the Temple Mount (1917-1948), (August 31, 2012).
• Justin Pierce, Blasphemy: Religious or Secular Law?,  (September 5, 2012).
• Robert C. Blitt, Springtime for Freedom of Religion or Belief: Will Newly Democratic Arab States Guarantee International Human Rights Norms or Perpetuate Their Violation?, (September 8, 2012).
• Beverley Baines, Polygamy and Feminist Constitutionalism, (in B. Baines, D. Barak-Erez, and T. Kahana, eds., Feminist Constitutionalism: Global Perspectives, Cambridge University Press, 2012).

President Declares This Weekend As Days of Prayer and Remembrance For 9-11 Victims

Last Friday, as we near the 11th anniversary of the 9-11 attacks, President Barack Obama issued a Proclamation (full text) declaring September 7 through 9 as National Days of Prayer and Remembrance for the victims of 9-11.

Recent Prisoner Free Exercise Cases

In Morris v. Morrison, (8th Cir., Aug. 31, 2012), the 8th Circuit Court of Appeals affirmed an Iowa district court's dismissal on qualified immunity grounds of a prisoner's lawsuit alleging damage to religious property during a prison cell search.

In Davilla v. National Inmate Appeals Coordinator, 2012 U.S. Dist. LEXIS 124451 (SD GA, Aug. 31, 2012), a Georgia federal district court, disagreeing in part with a magistrate's recommendation, permitted an inmate to proceed with his 1st Amendment challenge to prison policies that bar him from receiving religious items (here Santeria beads and cowrie divination shells) through authorized vendors.  The court also allowed plaintiff to proceed with his claim for injunctive relief under RFRA, but held that damages are not recoverable as a remedy under RFRA. UPDATE: The magistrate's recommendation is at 2012 U.S. Dist. LEXIS 130391, June 15, 2012).

In Oliverez v. Albitre, 2012 U.S. Dist. LEXIS 124553 (ED CA, Aug. 31, 2012), a California federal magistrate judge recommended that an inmate be permitted to proceed with his 1st Amendment claim against the chaplain's office Native American spiritual leader, but not against the warden, for denying him access to his previously-purchased spiritual oil for worship.

In Mendez v. Trevino, 2012 U.S. Dist. LEXIS 124591 (ED CA, Aug. 30, 2012), a California federal magistrate judge dismissed, with leave to amend, a suit by a Native American "Yaqui" Indian whose religious practice involves both Native American and Christian elements. He was not allowed to attend Native American services because he was already attending Christian services and because of hearsay information of drug usage and beadwork sale.

In Jones v. Petty, 2012 U.S. Dist. LEXIS 124850 (MD GA, Sept. 4, 2012), a Georgia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 124849, Aug. 2, 2012) and dismissed a Muslim inmate's complaint that he was prevented from practicing Ramadan, obtaining a prayer rug and religious books, obtaining his prayer towel, and obtaining a pork-free breakfast tray.

In Walters v. Santa Clara Department of Corrections Elmwood Facility Commander 2012 U.S. Dist. LEXIS 125281 (ND CA, Sept. 4, 2012), a California federal district court permitted a Muslim inmate to proceed with his 1st Amendment, RLUIPA and equal protection complaints alleging failure to provide him an adequate religious diet.

In Countryman v. Palmer, 2012 U.S. Dist. LEXIS 125224 (D NV, Aug. 6, 2012), a Nevada federal magistrate judge recommended denial of a preliminary injunction in a suit by an Episcopalian inmate who objected to the prison's cancellation of a planned 3-day event by the Kairos Prison Ministries.

In Malipurathu v. Jones, 2012 U.S. Dist. LEXIS 124988 (WD OK, Sept. 4, 2012), an Oklahoma federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 124983, June 14, 2012) and rejected complaints of a Sikh inmate who had been dismissed from a drug treatment program in which he had been placed in lieu of incarceration. Plaintiff objected that the program included Christian-based prayers.

In Howard v. Wiglesworth, 2012 U.S. Dist. LEXIS 125617 (SD MI, Sept. 5, 2012), a Mississippi federal magistrate judge dismissed a lawsuit by a Rastafarian inmate complaining that no Rastafarian religious services were offered (no one was available to lead them), and claiming that he was not provided a religious diet or permitted to wear his dreadlocks.

In Jahad Ali #56036 v. Clements, 2012 U.S. Dist. LEXIS 125612 (D CO, Sept. 4, 2012), a Colorado federal magistrate judge ruled that an inmate's complaint that prison authorities refused to honor a 1992 agreement to recognize his religious and legal name needed to be amended within 30 days to set forth appropriate allegations or it will be dismissed.

In Manson v. Sexton, 2012 U.S. Dist. LEXIS 125750 (ND AL, Sept. 5, 2012), an Alabama federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 125733, Aug. 8. 2012) and dismissed without prejudice an inmate generalized claim that he was provided religious materials that were not "necessarily of [his] belief."

Pakistani Girl Charged With Blasphemy Released On Bail

In Pakistan today, Rimsha Masih, a Christian girl being held on controversial blasphemy charges, was released on 1 million rupees ($10,500 US) bail. The New York Times reports that Masih was driven away in secrecy from a Rawalpindi prison to a waiting helicopter. The court found that she is 14 years old, with a mental capacity lower than that.  Masih, who works as a sweeper, was charged with burning pages from a holy book, while a Muslim cleric was charged with planting pages from the Qur’an to make her actions appear worse. (See prior posting.) The case has been widely publicized internationally as an example of abuses in the use of Pakistan’s blasphemy laws.

Suit Challenging Exclusion From Courtroom Because of Religious Headdress Can Proceed Against City

In Daniels v. City of North Charleston, 2012 U.S. Dist. LEXIS 126314 (D SC, Sept. 6, 2012), a South Carolina federal district court adopted a magistrate’s recommendations (2012 U.S. Dist. LEXIS 126767, Aug. 9, 2012) and permitted plaintiff (an adherent of the East African Hebrew religion) to move ahead with several of his claims growing out of the refusal of Municipal Court constables to allow him to enter the court room wearing religious headdress . The court allowed plaintiff to proceed on his charges that the city violated his free exercise rights under the federal constitution as well as under the South Carolina Religious Freedom Act. It also allowed him to proceed on certain common law claims. However religious discrimination and other constitutional claims against the constables in their individual capacities were dismissed on the basis of quasi-judicial immunity.

Feds Concur In Eliminating Offensive Name Of New Hampshire Pond

The Nashua (NH) Telegraph reports today that the U.S. Board of Geographic Names has officially approved the name change of a small pond in Mont Vernon, Hew Hapmshire so that it is no longer officially known as "Jew Pond." Instead its official name is now "Carleton Pond", though the USGS still lists" Jew Pond," as well as "Spring Pond," as a "variant name." The pond was created for a local hotel a century ago by damming a small brook. Originally called Spring Pond, it began to be called Jew Pond in the 1930's when the hotel was owned for a few years by Jewish businessmen from Boston. The name Jew Pond, which was seen as offensive by many, was changed by the town after the town's health officer, Rich Masters, raised the issue last year.

Missouri Bishop Convicted Of Failing To Report Suspicion of Child Abuse

Yesterday in Kansas City, Missouri, a state court judge after a brief non-jury trial convicted Catholic Bishop Robert W. Finn on one misdemeanor count of failing to report suspicion of child abuse (MRS 210.115). According to the Kansas City Star, this makes Finn the highest ranking U.S. Catholic cleric convicted in the Church's sex abuse scandals.  The charges grew out of the Church's discovery in December 2010 of hundreds of lewd photos of young girls on the laptop computer of of priest Shawn Ratigan. Police were not notified until May 2011. Finn was convicted on a charge covering the period from Feb. through May 2011, while he was acquitted on a second charge covering an earlier period of time. Finn was sentenced to two years' probation. If he complies with all the conditions, his criminal conviction could then be expunged.  Those conditions include strengthening training for clergy and administrators on child abuse reporting and recognizing child pornography; creating a $10,000 victim counseling fund; drawing up an approved list of treatment providers; and maintaining an ombudsman. Originally Finn's case had been set for a jury trial, but prosecutors and defense attorney instead yesterday submitted 69 paragraphs of stipulated facts in a bench trial. In exchange for his cooperation in the case, authorities agreed not to prosecute second-ranking diocese official, Monsignor Robert Murphy, who ultimately reported suspicions to the police.