California Governor Signs Law Banning Reparative Therapy For Minors; 2 Lawsuits Threatened

As reported by AP, in California on Saturday Gov. Jerry Brown signed SB No. 1172, a bill that prohibits mental health professionals from engaging in sexual orientation change efforts (so-called reparative therapy) with a patient under 18 years of age.  The new law applies only to licensed therapists, not clergy who advise young people. But it will impact licensed Christian psychotherapists who counsel teenage clients.  Two Christian legal groups, the California-based Pacific Justice Institute and Florida-based Liberty Counsel have announced that they will file federal lawsuits challenging the law's constitutionality.

UPDATE: The full text of the complaint in Liberty Counsel's lawsuit, Pickup v. Brown, (ED CA, filed 10/4/2012) is available online, while ABC News reports on details of the Pacific Justice Institute's suit.

Supreme Court Term Opens With Several Items of Interest

Yesterday the U.S. Supreme Court opened its new term. As reported by the Huffington Post, on Sunday, a day before the new term opened, six of the justices attended the annual Red Mass that is sponsored by the John Carroll Society. In attendance at the Cathedral of St. Matthew the Apostle were Justices John Roberts, Antonin Scalia, Elena Kagan, Anthony Kennedy, Clarence Thomas and Stephen Breyer.  Archbishop Timothy P. Broglio, Archbishop for the Military Services, USA, delivered the homily (full text).

As usual on the first day of the term, the Court issued a large number of orders (over 2000). (Order List.)  Among those, it denied certiorari in two cases of interest.  It refused review in Presbytery of of South Louisiana v. Carrollton Presbyterian Church, (Docket No. 11-1393). In the case a Louisiana state appellate court upheld the right of a Presbyterian congregation to sell real property titled in its name.  It held that a provision in the PCUSA's Book of Order regarding rights of the parent church does not apply to this case. (See prior posting.)

The Court also denied review in Rubashkin v. United States, (Docket No. 11-1203).  In the case, the U.S. 8th Circuit Court of Appeals rejected a motion for a new trial and a challenge to the length of the sentence imposed on Sholom Rubashkin, the Orthodox Jewish former vice president of the kosher meat processing firm, Agriprocesors, in Postville, Iowa. Rubashkin was convicted on financial fraud charges. (See prior posting.)

In a somewhat unusual move, the Court ordered the United States, the defendant, to file a response to the motion for a rehearing in Liberty University v. Geithner, (Docket No. 11-438), a case involving challenges to the Affordable Care Act. The Court had previously denied certiorari in the case in which a majority of a 4th Circuit  panel concluded that the federal tax Anti-Injunction Act bars consideration of the challenge to the law. (See prior posting.) In a press release, Liberty Counsel explains that it is seeking the rehearing because the Supreme Court in its decision in other cases last June decided that the Anti-Injunction Act does not apply.  Plaintiffs want their case remanded, now that the procedural hurdle is removed, for consideration of their free exercise and RFRA claims regarding alleged funding of abortions.

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Recent Articles of Interest

From SSRN:

• Robert Eli Rosen, The Victimizer's Path to Forgiveness: A Jewish Perspective, (Peace, Justice & Development: Essays in Sociology of Law for the 21st Century, Arvind Agrawal & Vittorio Olgiati, eds., Hart Publishing, Forthcoming).
• Nomi Maya Stolzenberg, Political Theology with a Difference, (Forthcoming in University of California Irvine Law Review).
• Diana Ginn, Comment on Canadian Freedom of Religion Case, (Jurist, Forthcoming).
• Brett Freudenberg and Mahmood Nathie, Chasing Islamic Finance: A Framework to Assess the Potential Benefits of Australian Tax Reforms to Facilitate Islamic Finance, (Review of Business, Vol. 32, No. 2, pp. 58 - 70, 2012).
• Richard W. Garnett and Andrew M. Koppelman, The Many Paths to Neutrality, (in First Amendment Stories, Foundation Press, 2012,  Garnett & Koppelman, eds.).
• Richard Schragger and Micah Schwartzman, Against Religious Institutionalism, (Virginia Law Review, Forthcoming 2013).
• Farooq Aziz and N.R. Khan, Refutation of Private Ownership of Land: An Islamic Perspective, (Journal of Islamic Economics, Banking and Finance, 8(2), 81-90, 2012).
• Imran Hussain Minhas, Shari'ah Governance Model (SGM) and Its Four Basic Pillars, (Islamic Finance News Malaysia Published by Red Money Publication, 2012).
• Rebecca Maret, Mind the Gap: The Equality Bill and Shari'a Arbitration Tribunals in the United Kingdom, (Boston College Law Review, Vol. 1, 2012).

From SmartCILP:

• Marci A. Hamilton, RLUIPA Is a Bridge Too Far: Inconvenience Is Not Discrimination, [Abstract], 39 Fordham Urban Law Journal 959-987 (2012).
• John Hursh, Advancing Women's Rights Through Islamic Law: The Example of Morocco, 27 Berkeley Journal of Gender Law & Justice 252-305 (2012).
• Charles Kelbley, Modeling Church and State: The Ideological Use of History in Establishment Clause Jurisprudence, [Abstract], 38 Ohio Northern University Law Review 639-700 (2012).
• Alan C. Weinstein, The Effect of RLUIPA's Land Use Provisions on Local Governments, 39 Fordham Urban Law Journal 1221-1248 (2012).

Russian City Halts Ticket Sales For Musical To Consider Religious Offense Complaint

Russia's Duma is considering amendments to the country's criminal code to specifically outlaw causing of religious offense.  As reported last week by RIA Novosti, the bill was drafted in the wake of the sentencing of 3 members of the punk rock group Pussy Riot for hooliganism after their performance in a Moscow cathedral. The proposed law would impose a sentence ranging from a fine to up to 5 years in prison for violation of its prohibitions. Apparently relying on the proposed legislation, 18 Orthodox Christian private citizens in the Russian city of Rostov-on-Don have complained to the city about the scheduled performance of the rock opera Jesus Christ Superstar. They contend that it is an inaccurate portrayal of Jesus. RT reported yesterday that the city administration has ordered the theater to stop selling tickets for the performance while the city considers the complaint.

Diocese Fails To Get Summary Judgment In Suit To Hold It Responsible For Clergy Sexual Abuse

In Colomb v. Roman Catholic Diocese of Burlington Vermont, Inc., (D VT, Sept. 28, 2012), a Vermont federal district court refused to grant summary judgment to a Catholic diocese in a suit that is seeking to hold it responsible for sexual abuse in the 1970's by  Father Edward Paquette and other priests. First the court ruled that it is impossible to rule as a matter of law that the statute of limitations has run since it must be determined when plaintiff made the connection between his longstanding psychological issues and the sexual abuse he suffered as a child. It also refused to grant summary judgment based on various objections to the way in which damages are awarded and rejected the claim that the 1st Amendment precludes a suit against the diocese for negligent hiring or supervision.

Recent Prisoner Free Exercise Cases

In Fistell v. Suthers, 2012 U.S. Dist. LEXIS 133718 (D CO, Sept. 19, 2012), a Colorado federal district court refused to hold prison authorities in contempt of a prior injunction for their failure to furnish an inmate a kosher meal for breakfast and lunch on one day while the prison was on lock down because of a power outage. Kosher meals had been furnished during numerous other lock downs.

In Rice v. Ramsey, 2012 U.S. Dist. LEXIS 134284 (ND CA, Sept. 18, 2012), a California federal district court dismissed on the merits an inmate's complaint that AEM Muslims were refused separate access to the interfaith chapel to conduct classes and their request to hire a full or part time AEM imam was denied.  Plaintiff's complaint regarding denial of Suhoor meals was dismissed for failure to exhaust administrative remedies.

In Cato v. Ramos, 2012 U.S. Dist. LEXIS 134163 (WD NY, Sept. 19, 2012), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 134150, Aug. 10, 2012) and dismissed an inmate's claim that a staffer at the prison facility where he was formerly housed interfered with the provision of Rastafarian holy day meals and discriminated against Rastafarian inmates.

In Native American Council of Tribes v. Weber, 2012 U.S. Dist. LEXIS 133937 (D SD, Sept. 19, 2012), a South Dakota federal district court held that the South Dakota prison system violated RLUIPA when it banned all tobacco, including its use in Native American religious ceremonies. According to the court: "the ban was implemented to effectuate what defendants believed was the advice of the medicine men and spiritual leaders regarding the Lakota religion rather than due to security reasons. Defendants essentially enforced what they determined to be the more "traditional" Lakota belief. But the state may not determine what is "traditional" or "orthodox" within a certain religious tradition."

In Reeder v. Hogan, 2012 U.S. Dist. LEXIS 134709 (ND NY, Sept. 19, 2012), a New York federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 134710, July 11, 2012) and dismissed an inmate's suit against the prison's "grievance sergeant" complaining about not receiving Ramadan meals.

In Rowser v. Desousa, 2012 U.S. Dist. LEXIS 134858 (SD NY, Sept. 17, 2012), a New York federal district court dismissed a suit by an inmate complaining about an attempted strip frisk that violates Muslim religious rules.

In Myers v. Burdick, 2012 U.S. Dist. LEXIS 135999 (ED WI, Sept. 24, 2012), a Wisconsin federal district court permitted an inmate to proceed with his RLUIPA claim (but not his free exercise or equal protection claims) challenging the prison system's policy on tarot cards. The court held that "a factfinder could conclude that a total denial of all tarot cards other than the Aquarian Tarot and specifically the denial of the Golden Dawn Tarot and its companion book, was not the least restrictive means of furthering a compelling governmental interest."

In Coleman v. Allen, 2012 U.S. Dist. LEXIS 135816 (MD AL, Sept. 24, 2012), an Alabama federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 136411, Sept. 7, 2012) and dismissed claims by a Native American inmate regarding constraints on religious ceremonies, ordering of religious items, use of sweat lodge and tobacco, interruption of religious services, and access to ceremonial grounds at the prison in which he was formerly held.

In Riley v. DeCarlo, 2012 U.S. Dist. LEXIS 137279 (WD PA, Sept. 25, 2012), a Pennsylvania federal district court dismissed a complaint by a Muslim inmate that he was not furnished with a Halal diet.

In Bonilla v. Annucci, 2012 U.S. Dist. LEXIS 137235 (ND NY, Sept. 25, 2012), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 137241, Aug. 16, 2012), and permitted inmates who are members of Nations of Gods and Earth to move ahead with their free exercise and RLUIPA claims regarding restrictions on congregative opportunities and wearing crowns (but not as to restrictions on displaying symbols, flag and texts). The court also allowed plaintiffs to move ahead with their equal protection challenges to restrictions on displaying NGE symbols and the Universal Flag, wearing crowns, and on congregating for services, classes, and on Honor Days.

Court Refuses To Enjoin Enforcement of Missouri's House of Worship Protection Act

In Survivors Network of Those Abused by Priests v. Joyce,  (ED MO, Sept. 28, 2012), a Missouri federal district court refused to issue a preliminary injunction to prevent enforcement of Missouri's House of Worship Protection Act against a group representing clergy sex abuse victims.  SNAP, which engages in peaceful picketing and leafleting outside of churches, claims the recently effective law infringes their free speech rights and is unconstitutionally vague. The court, however, held that plaintiffs failed to show a likelihood of success on the merits of their claims. It concluded that the statute is a content-neutral time, place and manner regulation:

Plaintiffs here, as peaceful demonstrators, face relatively minimal restriction on their activities.  They may freely walk on the public areas adjacent to houses of worship, carry signs and banners, and distribute leaflets communicating their message before services, when services are not being held, and Plaintiffs may do so even during worship services, as long the manner in 

The court also rejected plaintiffs' claim that both the definition of "house of worship" and the definition of the prohibited conduct are overly broad and vague:

What the statute prohibits is willful behavior intended to interfere with the successful conduct of a worship service. The probability that a reasonable person would not understand any of the common terms used to describe the prohibited behavior is quite remote.

Court Rejects Religious Liberty Challenges To Contraceptive Coverage Mandate of Affordable Care Act

In an important and extensively reasoned opinion handed down yesterday, a Missouri federal district court rejected a series of challenges to the contraceptive coverage mandate of the Affordable Care Act brought by a small business organized as a limited liability company and by its sole owner who is Catholic.  Plaintiffs claimed that the mandate burdens their exercise of religion.  In O’Brien v. U.S. Department of Health and Human Services, (ED MO, Sept. 28, 2012), Judge Carol E. Jackson (a President George H. W. Bush appointee) first held that she need not decide whether O’Brien Industrial Holdings (“OIH”), a secular limited liability company, is capable of exercising religion within the meaning of the Religious Freedom Restoration Act or the First Amendment because, even if it is, the contraception coverage mandate does not infringe religious exercise rights.

Focusing on RFRA, the court held:

the challenged regulations do not demand that plaintiffs alter their behavior in a manner that will directly and inevitably prevent plaintiffs from acting in accordance with their religious beliefs…. [P]laintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. The burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by OIH’s plan, subsidize someone else’s participation in an activity that is condemned by plaintiffs’ religion. This Court rejects the proposition that requiring indirect financial support of a practice, from which plaintiff himself abstains according to his religious principles, constitutes a substantial burden on plaintiff’s religious exercise….

… [T]he health care plan will offend plaintiffs’ religious beliefs only if an OIH employee (or covered family member) makes an independent decision to use the plan to cover counseling related to or the purchase of contraceptives.   Already, OIH and Frank O’Brien pay salaries to their employees---money the employees may use to purchase contraceptives or to contribute to a religious organization. By comparison, the contribution to a health care plan has no more than a de minimus impact on the plaintiff’s religious beliefs than paying salaries and other benefits to employees.

Moving to the 1st Amendment Free Exercise claim, the court held that the preventive services regulations under the ACA are a neutral law of general applicability, and thus consistent with the 1st Amendment.  It also rejected plaintiffs’ arguments that the religious employer exemption in the regulations violates the Establishment Clause by favoring organized religion over less formal manifestations of faith or by excessively entangling the government with religion in determining whether an organization qualifies for the exemption.

The court then rejected plaintiff’s 1st Amendment “compelled speech” argument, saying:

There is an important distinction between the instant case and the Supreme Court’s compelled speech subsidy cases: plaintiffs in this case are not subsidizing speech. The plaintiffs’ contribution to their employees’ receipt of health care benefits (as required by the regulations) is conduct, not speech. It is true that the receipt of health care benefits often includes a conversation between a doctor and a patient, and the preventive services coverage regulations encompass “patient education and counseling for all women with reproductive capacity.” … However, this speech is merely incidental to the conduct of receiving health care.

Finally the court rejected plaintiffs Administrative Procedure Act arguments. It found that plaintiffs lack standing to assert one of their APA claims. They do have standing to assert that under the APA the regulation is arbitrary and capricious. However the court rejected plaintiffs’ claim that the government in adopting the mandate arbitrarily and capriciously ignored the impact of the regulation on secular, for-profit employers with religious values.

Subsidy To Churches Raises Establishment Clause Issues For Publicly Owned Electric Company

Santiago-Ramos v. Autoridad De Energia Electrica, (D PR, Sept. 18, 2012), is a lawsuit by an economic development corporation and one of its members against the Puerto Rico Electric Power Authority alleging broadly that the public electric power company is used by the political party in power to favor various interests at the expense of ordinary consumers of electricity.  The complaint alleges a number of statutory and constitutional violations. Among the claims that the court refused to dismiss was the contention that the PREPA has promoted religion in violation of the Establishment Clause by giving $3,500,000 in subsidies to churches (and other non-profit organizations).

Court Says Questions Remain On Accommodation of Hebrew Israelite Employee

In Batson v. Branch Banking and Trust Company, (D MD, Sept. 25, 2012), a Maryland federal district court denied defendant's motion for summary judgment, finding that substantial questions of fact remain as to whether a bank reasonably accommodated the religious needs of a Hebrew Israelite teller who was fired for not being willing to work on alternate Saturdays. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

5th Circuit Reverses Denial of Preliminary Injunction In Church's RLUIPA Suit

In Opulent Life Church v. City of Holly Springs Mississippi, (5th Cir., Sept. 27, 2012), the U.S. 5th Circuit Court of Appeals vacated a Mississippi federal district court's denial of a preliminary injunction in a Christian church's RLUIPA zoning suit and remanded the case for further findings.  The appeals court held that the Opulent Life Church had shown irreparable harm by being unable to use a building it had agreed to lease.  On the eve of oral arguments in the 5th Circuit, the city repealed the zoning conditions that had created problems for the church and replaced them with a total ban on religious congregations in the Business Courthouse Square District where the church's building was located.  Rejecting mootness and ripeness challenges to the lawsuit, the appeals court defined the 5th Circuit's approach to the "equal terms" clause of the Religious Land Use and Institutionalized Persons Act. The court must determine:

whether the religious assembly or institution is treated as well as every other nonreligious assembly or institution that is “similarly situated” with respect to the stated purpose [of the regulation].

The court remanded the case for the district court to decide:

(1) whether Opulent Life is likely to succeed on its claims challenging the validity of the newly adopted religious facilities ban; (2) whether the harm Opulent Life will suffer absent a preliminary injunction outweighs the harm an injunction will cause Holly Springs; (3) the amount of actual damages Opulent Life suffered ... and (4)... whether Opulent Life should be awarded reasonable attorneys fees....

Suit Over Amish Building Code Compliance Settled

A settlement has been reached between the Swartzentruber Amish community and the Town of Morristown, New York over building code compliance.  In 2009, eleven Amish families filed suit in federal court challenging enforcement the town's requirements that they submit architect-stamped construction plans, install battery-powered smoke detectors, use hurricane tie-downs and  construct frost-proof foundations. The Amish said that these requirements violate their religious beliefs. (See prior posting.) The Watertown Daily Times reports that in a compromise the town has dropped building code violation charges.  The town will accept Amish cellar construction as meeting code requirements, while the Amish will have smoke detectors installed in their homes during inspections and will use an approved method to secure their roofs.  The parties agreed to dismiss the federal lawsuit and the court issued an order doing so on Sept. 21. [Thanks to Blog From the Capital for the lead.]

FFRF Sues Another Pennsylvania School District Over 10 Commandments Monument

The Freedom From Religion Foundation has announced that it filed suit in federal court yesterday against the Connellsville, Pennsylvania school district challenging the constitutionality of a Ten Commandments monument that has stood near the auditorium entrance of a now-junior high school building for over 50 years. When the monument was presented to the school by the Fraternal Order of Eagles, the school was a high school.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Connellsville Area School District, (WD PA, filed Sept. 27, 2012) alleges that originally school officials had agreed to move the monument to the grounds of a nearby church, but they changed their minds after community opposition to the decision. The monument is now covered with a wooden box.  Earlier this month, FFRF filed a similar lawsuit against another Pennsylvania school district. (See prior posting.)

Chabad Sues Northwestern University For Discrimination After University Ends Affiliation

According to Courthouse News Service, last week the Chabad House at Northwestern University filed a religious discrimination lawsuit against the University after the University informed Chabad that it was revoking its university affiliation. The complaint (full text) in Lubavitch-Chabad of Illinois, Inc. v. Northwestrn University, (ND IL, filed 9/21/ 2012) says that the University's action terminates Chabad Rabbi Dov Hillel Klein's university chaplaincy positions. Also the University seeks to bar Chabad from contracting with a food vendor to facilitate the sale of kosher food on campus and to bar Chabad from sponsoring the Birthright Israel trip for Northwestern students. The University also will ask a fraternity to drop Rabbi Klein as its adviser. According to the Daily Northwestern, the University's action was taken because Chabad serves alcohol at student events in violation of University policy. The complaint in the lawsuit alleges:

many other campus organizations including religious organizations, had committed the same acts for which Rabbi Klein stood falsely accused.  The University was aware of this, and chose only to disassociate with Chabad. Those actions constituted discriminatory and disparate treatment taken solely on the basis of Rabbi Klein’s ... affiliation with Chabad Chassidism.

[Thanks to Vos Iz Neias? for the lead.]

Man Behind Inflammatory Anti-Muslim Video Arrested For Probation Violations

ABC News and the Los Angeles Times report that yesterday federal probation officials in Los Angeles (CA) arrested Nakoula Basseley Nakoula, the man purportedly behind the video "Innocence of Muslims" that has sparked demonstrations around the world. (See prior posting.) Nakoula, under the terms of his 2010 probation for bank fraud, was not to use or own devices with access to the Internet without approval of his probation officer, and was not to enlist others access the Internet for him. Magistrate Judge Suzanne Segal ordered Nakoula to be held in custody, citing his lengthy pattern of deception. Prosecutors argued that he is a flight risk.

Egypt Charges U.S. Embassy Protester Under Blasphemy Law

As previously reported, two weeks ago crowds demonstrated and attacked the U.S. embassy in Egypt to protest the video Innocence of Muslims. Now, according to AP, on Tuesday Egyptian prosecutors referred to trial on charges of insulting "heavenly" religions Ahmed Mohammed Abdullah who was filmed tearing up an English copy of the Bible during the embassy protest. Abdullah is well-known for having created a new TV channel operated mainly women veiled from head to toe with only their eyes showing.  Egypt's blasphemy law covering heavenly religions is generally seen as applying to Islam, Christianity and Judaism, but in the past has been used mostly by critics of Islam.  Abdullah claims he has not violated the blasphemy law because he targeted the book of a specific group of Christians who have offended Islam.  Apparently Abdullah's son and a journalist who interviewed him were also charged under the blasphemy law.

German Court Says State Will Not Regard Those Who Stop Paying Church Taxes As Church Members

In Germany, Leipzig's Federal Administrative Court ruled yesterday that a person will not be considered by the state to be a member of the Catholic Church if he opts out of paying Church taxes. However how the Church deals internally with a person who does not pay Church taxes is up to religious authorities.  According to Deutsche Welle in an article and an op-ed, the ruling comes in a case filed in 2007 by a retired professor of church law who had insisted that he would no longer pay the church tax but would still remain a Catholic and continue praying and receiving Holy Communion.  At that time there was some disagreement between the Vatican and the German bishops over the definition of Church membership. However, last week, the German Catholic bishops issued a ruling that had been approved in advance by the Vatican that said those who opt out of the Church tax cannot participate in most aspects of the Catholic Church. (See prior posting.)

Today Was Annual "See You At The Pole" Events

As reported by Christian Post, today was the 22nd annual "See You At The Pole" student prayer event at schools around the country and abroad.  Alliance Defending Freedom announced that it stands ready to provide free defense for any students who have been prevented or discouraged by public school officials from participating in the event. ADF has also released a legal memo defending the constitutionality of student participation and promotion of the event.

Judge Sentences Defendant To Write Report on Hinduism

As reported by MLive, in Bay County, Michigan on Monday, 26-year old Delane D. Bell was up for sentencing on a charge of ethnic intimidation to which he plead guilty last March. The charge stemmed from an incident outside a bar in which Bell  shouted "jihad" and "Osama bin Laden" at two Hindu men, and then punched one of the men and hit the other’s car. At the time of the plea, Bay County Circuit Judge Joseph K. Sheeran ordered Bell to write a 10-page report on the greatest accomplishments of Muslims. Now, the judge sentenced Bell to 2 years probation, on the condition that he write another 10-page report, this time on Hinduism. The judge added that this report should show more originality than his last one did.