British Appeals Court Says Mother Can Move Children From Charedi To Modern Orthodox Jewish School

In Re G (Children), (ECWA, Oct. 4, 2012), the England and Wales Court of Appeal affirmed a trial court's decision settling a dispute over the religious education of the children of an Orthodox Jewish couple who had separated after their marriage broke down.  Both the mother and father had come from the Hassidic community. Both parents agreed to the trial court's order that the 5 children (3 girls and 2 boys) live with the mother, and that the father have extensive contact with them. The court sided with the mother who wants to move the children from a Charedi (ultra-Orthodox) school to a Modern Orthodox Jewish school so that they can "have opportunities she did not have, and the father did not have, to study for A levels and go to university if they want to, and to get jobs and support themselves." The father objected to the change in life style this would create for the children. the Court of Appeal, in siding with the mother, said in part:

First, we must recognise that equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls. Second, we foster, encourage and facilitate aspiration: both aspiration as a virtue in itself and, to the extent that it is practical and reasonable, the child's own aspirations..... Third, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead – what kind of person they want to be – and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximise the child's opportunities in every sphere of life as they enter adulthood. And the corollary of this, where the decision has been devolved to a 'judicial parent', is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child's ability to make such decisions in future.

The Telegraph reports on the decision.

Pulpit Freedom Sunday Is This Weekend

The Washington Post reports that 1,400 pastors will be participating in Pulpit Freedom Sunday this weekend. Sponsored by Alliance Defending Freedom, the day is designed to challenge the Internal Revenue Code provisions that bar 501(c)(3) non-profit organizations (including churches) from endorsing or opposing political candidates. Sponsors of Pulpit Freedom Sunday ask pastors to preach from their pulpits on Sunday in accordance with biblical Truth and church doctrine about one or more candidates. The IRS is unlikely to be able to respond with enforcement actions against offending churches because a 2009 court decision required the IRS to enact new regulations determining who can authorize church tax inquiries, and proposals issued by the agency in response have not yet been adopted. (See prior posting.)

Jehovah's Witness Sues Low-Income Housing Project For Discrimination

The New York Daily News today reports on a federal religious discrimination lawsuit filed by Larry Jackson, a Jehovah's Witness who says he was denied a unit in the low income Glass Factory housing complex in New York City because an employee of the housing project was concerned that he would proselytize door to door in the 45-unit building. The suit against officials of the Bowery Residents Committee seeks $60,000 in punitive damages and an apology. The state Division of Human Rights found probable cause in the case, opening the way for the federal lawsuit.  Jackson now lives in shelter in Queens.

Article Reports On Christian Proselytizing By Fellow Students In Georgia Public Schools

Jews On First this week has posted a lengthy article on the proselytizing pressure from fellow-students experienced by Jewish students in the public schools in the Atlanta (GA) area.  The article also reports on problems faced by Jewish students relating to absences for religious holidays, and the general pervasiveness of Christianity in the public schools of the Southeast:

Christianity seeps into the South's public schools on several levels. A former football coach, Rick Gage, leads the Duluth, Ga.-based GO TELL Ministries under whose auspices he presents anti-drug or anti-sex speeches in schools that have underlying Christian messages. Its website states: "The purpose of GO TELL Ministries is to reach as many people as possible for God's Kingdom."

The Fellowship of Christian Athletes has clubs in just about every high school in the area.

As long as the religious clubs are run by the students themselves, there is generally no legal issue. But it's not always clear cut. As [Georgia ACLU Director  Debbie] Seagraves points out, "Everywhere you go in this state, you will find problems that border on being unconstitutional."

Recent Prisoner Free Exercise Cases

In Dominguez v. Department of Mental Health, 2012 U.S. Dist. LEXIS 138637 (ED CA, Sept. 26, 2012), a California federal magistrate judge's recommendation concluded that the California Department of Corrections and Rehabilitation has 11th Amendment immunity from damages or retrospective injunctive relief in an inmate's claim that his free exercise rights as a Native American were infringed.

In Fulbright v. Jones, 2012 U.S. Dist. LEXIS 138355 (WD OK, Sept. 26, 2012), an Oklahoma federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 138351, Aug. 13, 2012) and held that a 2006 injunction in another case ordering kosher meals for inmates covered only the plaintiffs in that case and cannot be used by another inmate to now receive kosher meals.

In Wilson v. Rascoe, 2012 U.S. Dist. LEXIS 136771 (ND MS, Sept. 25, 2012), a Mississippi federal district court dismissed an inmate's complaint that in one instance when he was in lock down, authorities took so long to respond to his call button that he missed Sunday church services.

In Janali v. Corrections Corporation of America, 2012 U.S. Dist. LEXIS 136905 (SD MS, Sept. 25, 2012), a Mississippi federal district court refused to adopt a magistrate's recommendation (2012 U.S. Dist. LEXIS 136906, Sept. 4, 2012) that claims of a Shia Muslim inmate for separate religious services and a halal diet be dismissed. The court held instead that there should first be a ruling on whether plaintiff's RLUIPA claims are properly before the court (or should be allowed in an amended complaint), and whether discovery should be permitted.

In Ross v. Duby, 2012 U.S. Dist. LEXIS 137465 (WD MI, Sept. 26, 2012), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 138402, Sept. 10, 2012) and dismissed an inmate's claim for damages growing out of a refusal to supply him with a kosher diet. Plaintiff failed to prove that his belief is religious in his own scheme of things or is sincerely held.

In Marzett v. Brown, 2012 U.S. Dist. LEXIS 140199 (ED LA, Sept. 26, 2012), a Louisiana federal district court allowed an inmate to proceed with his claim that prison officials are completely stifling his observance of his Muslim faith, denying Muslim religious services, clergy and materials.

In Ford v. Smith, 2012 U.S. Dist. LEXIS 140466 (ND NY, Sept. 28, 2012), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 140453, Aug. 17, 2012) and dismissed claims by a Nation of Islam inmate that this free exercise and RLUIPA rights were infringed when he was denied hot water to prepare oatmeal for his pre-dawn Ramadan meals.

Bible Publisher Sues Challenging Contraception Coverage Mandate

A lawsuit filed yesterday by the Bible publishing company Tyndale House joins the long line of lawsuits challenging the Obama administration's contraceptive coverage mandate under the Affordable Care Act. The complaint (full text) in Tyndale House Publishers, Inc. v. Sebelius, (D DC, filed 10/2/2012) alleges that:

Tyndale and its owners are Christians who are committed to biblical principles, including the belief that all human beings are created in the image and likeness of God from the moment of their conception/fertilization.  But Defendants’ recently enacted regulatory mandate under PPACA forces Tyndale to provide and pay for drugs and devices that it and its owners’ believe can cause the death of human beings created in the image and likeness of God shortly after their conception/fertilization.

An ADF press release announcing the filing of the lawsuit explains:

The publisher is subject to the mandate because Obama administration rules say for-profit corporations are categorically non-religious, even though Tyndale House is strictly a publisher of Bibles and other Christian materials and is owned by the non-profit Tyndale House Foundation. 

Liberal Egyptian Party Files Criminal Complaint Over Fatwa Issued Against It

Egypt's Constitution Party which was formed last August to provide a liberal alternative to Islamist parties last week filed a complaint with prosecutors over a religious fatwa issued against it.  Ahram Online reports that Mohamed El-Athry, an Islamist sheikh and member of Egypt's Constituent Assembly issued a widely-circulated fatwa prohibiting anyone from joining the Constitution Party.  Salafist preacher Wagdy Ghoneim posted a video online strongly supporting the fatwa and calling the Constitution Party an infidel organization.  Last Thursday the Constitution Party filed a complaint with the supreme state security prosecutors charging El-Athry and Ghoneim with slander and public insult.

California Governor Signs Law Excusing Objecting Clergy From Performing Same-Sex Weddings

In California, on Sept. 30, Gov. Jerry Brown signed SB 1140 making it clear that clergy who object to same-sex marriage need not perform same-sex ceremonies.  The new law defines marriage as a civil, not a religious, contract. It also provides that no member of the clergy shall be required to solemnize a marriage that is contrary to his or her faith. Refusal to do so will not affect the tax exempt status of any entity. LGBT Weekly reports on the new law.

Religious Worker Visa Program Extended For 3 Years

On Sept. 28, President Obama signed into law S. 3245, a bill that, among other things, extends for 3 years the Special Immigrant Nonminister Religious Worker Program. JTA reports that the program makes up to 5,000 visas a year available to religious workers of all religious persuasions.

Street Preacher Succeeds In His Suit Against Noise Ordinance

In Hampsmire v. City of Santa Cruz, (ND CA, Sept. 28, 2012), a California federal district court, in a suit by a Christian street preacher, struck down as void for vagueness the city of Santa Cruz's noise ordinance which provides:

No person shall make, cause, suffer or permit to be made any noises or sounds (a) which are unreasonably disturbing or physically annoying to people of ordinary sensitiveness or which are so harsh or so prolonged or unnatural or unusual in their use, time or place as to cause physical discomfort to any person, and (b) which are not necessary in connection with an activity which is otherwise lawfully conducted.

The court said, in enjoining enforcement of the ordinance in its present form, said: "While the prohibition on 'unreasonably disturbing' noises establishes an objective standard, the 'necessary' exemption is not similarly tethered to any identifiable criteria."

Court Dismisses Challenge To "Year of the Bible" Resolution Despite Harsh Words About It

In Freedom From Religion Foundation, Inc. v. Saccone, (MD PA, Oct. 1, 2012), a Pennsylvania federal district court, while finding that plaintiffs had standing, dismissed on legislative immunity grounds a lawsuit challenging as an Establishment Clause violation a Pennsylvania House of Representatives resolution declaring 2012 to be the "Year of the Bible." (See prior posting.)  The court however made it clear that despite the dismissal, it has considerable problems with the resolution:

... the court’s determination that the defendants engaged in a "legislative act" for purposes of immunity should not be viewed as judicial endorsement of this resolution. It most certainly is not.  At best, H.R. 535 is a benign attempt to reaffirm the underlying principles of the Reagan proclamation of 1983.  At worst, it is premeditated pandering designed to provide a reelection sound bite for use by members of the General Assembly.  But regardless of the motivation behind H.R. 535, its express language is proselytizing and exclusionary.... The court is compelled to shine a clear, bright light on this resolution because it pushes the Establishment Clause envelope behind the safety glass of legislative immunity.  That it passed unanimously is even more alarming.  This judicial rebuke of the resolution is not intended to impugn the religious beliefs of any citizen.  To the contrary, the court’s disapprobation is directed to the blatant use of legislative resources in contravention of the spirit – if not the letter – of the Establishment Clause.  At a time when the Commonwealth of Pennsylvania faces massive public policy challenges, these resources would be far better utilized in meaningful legislative efforts for the benefit all of the citizens of the Commonwealth, regardless of their religious beliefs.

The Philadelphia Inquirer reports on the decision.

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.

PUBLICATION SCHEDULE: LOOK FOR NEW POSTINGS ON TUESDAY NIGHT

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.