Religion Clause

Thursday, October 11, 2012

Another Suit Filed Challenging ACA Contraceptive Coverage Mandate

New suits continue to be filed challenging the mandate under the Affordable Care Act requiring that most insurance policies cover contraceptive services. The latest is Korte v. U.S. Department of Health and Human Services, (SD IL, filed 10/9/2012) (full text of complaint) in which the two controlling shareholders of a family-owned construction firm with 90 employees allege that complying with the Mandate would require them to violate their Catholic religious beliefs. Plaintiffs also filed a Memorandum of Law in support of their motion for partial summary judgment and a Memorandum of Law in support of their motion for a preliminary injunction. In a press release, the American Center for Law and Justice announced the filing of the lawsuit.

School Ban On Student Distribution of Proselytizing Messages Is Viewpoint Discrimination

In Gilio v. School Board of Hillsborough County, Florida, (MD FL, Oct. 5, 2012), a Florida federal magistrate judge recommended issuance of a preliminary injunction to allow a 4th grade student to distribute invitations to a church organized Easter egg hunt to fellow classmates. The invitation indicated that the purpose of the event was "To have fun and learn the true meaning of Easter." According to the court:

Board Policy 9700 bans the distribution of materials from religious institutions or organizations that “contain a proselytizing message (i.e., promote the benefits of the specific religion).” The policy also states that school officials shall use the criteria in Board Policy 5722 to determine whether materials are suitable for distribution at school. In turn, one provision in Board Policy 5722 explains that materials are not appropriate if they “[s]eek to establish the supremacy of a particular religious denomination, sect, or point of view over any other religious denomination, sect, or point of view[.]”...

As applied to J.G.’s invitations, the contested provisions ... permit viewpoint discrimination because they target proselytizing messages solely from a religious perspective.... Board Policy 9700 applies only to religious institutions and organizations – not secular groups. The policy also defines “proselytizing messages” exclusively in relation to religious speech, or messages that “promote the benefits of the specific religion.” But proselytizing also has a broader meaning, such as “recruit[ing] members for an institution, team, or group.”... Although the School Board asserts that the policies are viewpoint neutral because they apply equally to all religions, regardless of the underlying theology, this argument is not persuasive.

Student Press Law Center reports on the decision.

Wednesday, October 10, 2012

Russian Court Suspends Sentence Of One Pussy Riot Band Member

In Russia today, according to Reuters, the Moscow City Court suspended the sentence of Yekaterina Samutsevich, one of the 3 members of the punk rock band Pussy Riot who had been given a 2-year prison sentences for hooliganism motivated by religious hatred growing out of a protest performance after the band entered Christ the Savior Cathedral. (See prior posting.) It turns out that Samutsevich had not taken part in the actual performance because she had been stopped and led away before it began. The court however reaffirmed the sentences of the other 2 band members, rejecting the argument they made in appealing their sentences that they did not intend to offend religious believers, but instead "to speak out against the merger between spiritual figures and the political elite of our country."

Indian Court Says Scholarship Program Creates Religious Discrimination

In the Indian state of Gujarat on Monday, a 2-judge bench of the high court upheld the state government's refusal to implement a central government program that awards scholarships to children of 5 minority groups. According to the Times of India, the court ruled that the program violates Article 15(1) of the Indian Constitution by favoring students of one religious group over another. The Constitution bars the State from discriminating against any citizen on grounds of religion, race, caste, sex, or place of birth. The central government says the program is not discriminatory, but is designed to help backward groups and has been implemented in other states. However, rather than implementing its judgment, the court referred the case to a larger bench since an opposite view was taken by another division bench in 2009.

N.Y. Court Recognizes UAE Judgment Enforcing Mahr Agreement

In S.B. v. W.A., (Sup. Ct. N.Y., Sept. 26, 2012), a New York trial court issued an order declaring enforceable an Abu Dhabi court's judgment in a divorce proceeding under the law of the United Arab Emirates enforcing a Muslim couple's Mahr agreement. Defendant raised 1st Amendment objections since the agreement had been entered as part of a religious ceremony two months after the parties' civil marriage. The court concluded, however: "Since a Mahr agreement may be enforced according to neutral principles of law, it will survive any constitutional challenge and be enforceable as a contractual obligation." The agreement entitled the wife to $250,000 in case of a divorce. Volokh Conspiracy has more on the case. [Thanks to Steven H. Sholk for the lead.]

Tuesday, October 09, 2012

Legislative Religious Freedom Caucuses In 9 States Announced

Leaders representing a bi-partisan group of 120 state legislators today announced the formation of religious freedom caucuses in nine state legislatures-- Arizona, Colorado, Florida, Idaho, Kansas, Missouri, New Hampshire, Oklahoma, and Tennessee. Leaders hope to have caucuses formed in all 50 states by the end of 2013. The caucuses will create legislative agendas for strengthening religious liberty in consultation with diverse faith communities, and will create educational materials on religious freedom.

Cert. Denied In RLUIPA Land Use Case

Today, the U.S. Supreme Court denied review in Gutay Christian Fellowship v. San Diego County, CA, (Docket No. 11-1451, certiorari denied 11/9/2012). (Order List.) In the case, the U.S. 9th Circuit Court of Appeals dismissed on ripeness grounds a church's RLUIPA land use lawsuit. The church had not actually filed an application for a modification of use permit. (See prior posting.)

New Jersey Police Charge Proselytizers With Breach of Peace

According to Christian News, police in Jersey City, New Jersey on Saturday cited six members of the Bread of Life Fellowship for breach of the peace when members of the public complained about their preaching, one-on-one witnessing, and handing out of Gospel tracts in Jersey City's Journal Square. Police told the six men who were ticketed that in the future they need a special permit to carryout their proselytizing on the publicly owned property. A hearing on the breach of peace charges is set for next month in Municipal Court. [Thanks to Andrew Reibman for the lead.]

Two More Suits Challenge Contraceptive Coverage Mandate Under Affordable Care Act

New lawsuits continue to be filed challenging the Obama administration’s Mandate under the Affordable Care Act requiring most health insurance policies to cover contraceptive services. A corporation that manufactures precision auto parts, an affiliated limited liability company that manufactures precision medical components, and the Catholic family that owns both companies has filed suit in federal district court in Michigan challenging the Mandate on 1st Amendment, RFRA and Administrative Procedure Act grounds. The complaint (full text) in Autocam Corporation v. Sebelius, (WD MI, filed 10/8/2012) contends that the companies will face fines of $66,000 per day for noncompliance with the Mandate. The Thomas More Society issued a press release announcing the filing of the lawsuit.

Meanwhile, in Texas, two Baptist schools, East Texas Baptist University and Houston Baptist University have also filed suit in federal district court challenging the Mandate. The complaint (full text) in East Texas Baptist University v. Sebelius, (SD TX, filed 10/9/2012) challenges the Mandate on similar grounds. Becket Fund issued a press release announcing the filing of this lawsuit.

As is typical with the numerous suits that have been filed, Catholic institutions and plaintiffs complain that contraception coverage of all kinds is inconsistent with their religious beliefs, but emphasize required coverage for contraceptive drugs and devices that may prevent implantation of fertilized eggs which plaintiffs see as abortion. Protestant plaintiffs focus only on coverage of those contraceptive methods seen as abortifacients.

Sunday, October 07, 2012

Powers of Saudi Religious Police Are Curbed

BBC reported last week that in Saudi Arabia, Abdul Latif Abdul Aziz al-Sheikh, head of the country's Commission for the Promotion of Virtue and Prevention of Vice, has announced new limits on the power of the religious police. Arrests, interrogations, house raids and searches will now be carried out by other government agencies, as the public is increasingly criticizing aggressive enforcement by the Commission's mutawa.

Canadian Government's Cut In Prison Chaplains Is Criticized

The Windsor Star reported yesterday that the Canadian government's decision to stop funding for 50 part-time minority faith chaplains who serve in the Canadian prison system is being criticized by both NDP and Liberal opposition members of Parliament. The move, which affects 31 Christian and 18 non-Christian part-time chaplains will save the government $1.3 million. The 80 full time prison chaplains (all but 1 of whom is Catholic or Protestant) will now serve the non-Christian inmate population. Those opposed to the move by the Conservative government say it infringes religious freedom. Jewish, Muslim and Sikh clergy involved in the program also criticized the cuts. The government's move does not affect some 2500 volunteers who offer religious services, nor does it impact spiritual services for aboriginal inmates.

Recent Prisoner Free Exercise Cases

In Rodriguez v. Hubbard, 2012 U.S. Dist. LEXIS 141089 (ED CA, Sept. 28, 2012), a California federal magistrate judge permitted a Native American inmate to proceed with his free exercise and equal protection challenges (but not his RLUIPA claims) to confiscation of his sacred pipe and bag, a medicine bundle, various bird wings and feathers and spiritual necklaces, as well as denial of spiritual counseling that took place at his former prison.

In Rahman v. Fischer, 2012 U.S. Dist. LEXIS 140455 (ND NY, Sept. 28, 2012), a New York federal district court dismissed for lack of jurisdiction an attempt by Shiite inmates to enforce a settlement in an earlier case in a different federal court. It dismissed, but with with leave to amend, plaintiff's complaint regarding denial of Shiite study classes, books and a locker to store Shiite religious texts.

In Wright v. Hedgepeth, 2012 U.S. Dist. LEXIS 142035 (ND CA, Sept. 30, 2012), a California federal district court allowed a Muslim inmate to proceed with complaints regarding a religious diet and denial of attendance at various religious services. Plaintiff contends that part of the reason for the problem is prison officials' reliance upon inaccurate information about Muslim religious requirements provided by the Muslim chaplain who practices a different, non-traditional version of Islam. The court referred the case to the Pro Se Prisoner Settlement Program.

In Womble v. Berghuis, 2012 U.S. Dist. LEXIS 142704 (WD MI, Oct. 3, 2012), a Michigan federal district court dismissed a number of defendants, but allowed a Buddhist inmate to proceed against two others on claims that he was wrongly removed from the vegan food line for a period of 4 months.

In Clark v. Florida, 2012 U.S. Dist. LEXIS 142423 (MD FL, Oct. 2, 2012), a Florida federal district court dismissed an inmate's claim that he was placed in confinement and stripped of his clothing due to his talking in tongues, which he believes is a sign of his "supernatural" spiritual powers.

In Parms v. Harlow, 2012 U.S. Dist. LEXIS 142382 (WD PA, Oct. 2, 2012), a Pennsylvania federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 142381, Sept. 11, 2012) and dismissed a deaf inmate's claim that his free exercise rights were violated when prison authorities refused to provide him an interpreter so he could understand religious services.

In Jihad v. Fabian, 2012 U.S. Dist. LEXIS 141272 (D MN, Oct. 1, 2012), a Minnesota federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 142519, Sept. 7, 2012) and dismissed a Muslim inmate's claim that prison authorities have failed to comply with a settlement agreement in an earlier case involving plaintiff's access to halal meals. The court held the enforcement of the agreement is a matter for state courts.

In Miller v. County of Nassau, 2012 U.S. Dist. LEXIS 143267 (ED NY, Oct. 3, 2012), a New York federal district court dismissed, with leave to amend, a claim that prison authorities favor favor the Catholic, Jewish, Protestant and Muslim religions over others such as Rastafarian, Santeria, and Native American religions.

In Davis v. Abercrombie, 2012 U.S. Dist. LEXIS 141568 (D HI, Sept. 30, 2012), an Hawaii federal district court refused to issue a preliminary injunction in a suit by two inmates who were practitioners of the Native Hawaiian religion, one of whose prayer object was confiscated and the other whose prayer object was damaged.

In Williams v. Bedsole, 2012 U.S. Dist. LEXIS 143148 (MD AL, Sept. 6, 2012), an Alabama federal magistrate judge recommended dismissing, on the basis of qualified immunity, an inmate's complaint that his religious freedom was infringed when, as part of his participation in the Crime Bill Program, he was forced to stand and face the flag during the Pledge of Allegiance.

In Palermo v. White, 2012 U.S. Dist. LEXIS 142515 (D NH, Sept. 4, 2012), a New Hampshire federal magistrate judge recommended allowing an inmate to move ahead with his complaint that the prison chaplain refused to recognize his pagan religion or provide him with a book, religious items or space to practice his religion.

Suspect Charged By Feds In Ohio Mosque Arson Attack

In Toledo, Ohio on Friday, federal officials filed charges against a 52-year old Indiana man for setting fire to the prayer room of a Toledo, Ohio mosque on Sept. 30. The Toledo Blade reports that Randy Linn was charged with one count of damage to religious property in violation of 18 USC Sec. 247, and one count of use of fire or explosives in connection with the commission of a federal felony in violation of 18 USC Sec. 844(h). The Affidavit in Support of a Criminal Complaint (full text) filed by the FBI says that Linn is an ex-marine who reportedly has recently made anti-Muslim comments, including complaining about the international Muslim community's reaction to a controversial YouTube video and has complained about recent attacks on U.S. embassies and the death of military personnel in the Middle East. While in a police car at the time of his arrest, Linn cursed Muslims. At a press conference on Friday, Wood County, Ohio prosecutors (who dropped state charges in favor of the federal charges) called the arson an act of terrorism.

Saturday, October 06, 2012

Federal Court Issues Consent Judgment Barring Enforcement of Montana Law On Clergy Pressuring Voters

In Zastrow v. Bullock, (D MT, Oct. 2, 2012), a Montana federal district court entered a permanent injunction with the consent of all parties barring enforcement of a Montana statute, MCA § 13-35-218(2) which provides:

A person who is a minister, preacher, priest, or other church officer or who is an officer of any corporation or organization, religious or otherwise, may not, other than by public speech or print, urge, persuade, or command any voter to vote or refrain from voting for or against any candidate, political party ticket, or ballot issue submitted to the people because of the person's religious duty or the interest of any corporation, church, or other organization.

The injunction also bars enforcement of MCA § 13-13-113(1) which requires the text of § 13-35-218(2) to be included in "Warning Posters" displayed in polling stations throughout the state. As reported by the Bozeman Daily Chronicle, the suit was filed by an Assemblies of God minister who was arrested for trespass after he refused to leave an area in a park commonly used to gather signatures. Pastor Calvin Zastrow was attempting to convince voters that they had a religious duty to support pro-life initiatives and candidates. The state subsequently dropped charges against Zastrow. Apparently the law, originally enacted in 1913, has never been enforced.

9th Circuit Upholds Religious Workers' Visa Procedures

In Ruiz-Diaz v. United States, (9th Circuit, Oct. 5, 2012), the U.S. 9th Circuit Court of Appeals rejected RFRA and 14th Amendment challenges to immigration rules that treat religious workers applying to adjust their immigration status to become permanent residents differently from those in various other employment-based preference categories. (See prior posting.) Rejecting a challenge under the Religious Freedom Restoration Act, the court said:

The fundamental flaw in the plaintiffs’ reliance on RFRA is that the challenged regulation does not affect their ability to practice their religion. They are subject to removal after five years because their visas have expired, not because they are practicing their religion.

The court also rejected plaintiffs' equal protection and due process challenges to the regulations. Courthouse News Service reports on the decision.

Pope's Former Butler Sentenced For Theft of Papal Letters

In the Vatican today, the trial of Pope Benedict XVI's former butler concluded with Paolo Gabriele being sentenced to 18 months in jail for stealing the Pope's private correspondence. Some of the letters were published in a best-selling book by Italian journalist Gianluigi Nuzzi. According to the London Observer, the court ordered Gabriele to begin the sentence under house arrest, while a Vatican spokesman said that there was a chance that the Pope would pardon Gabriele. Author and Vatican expert Marco Politi told The Observer:

The scandal has done enormous damage to the Vatican, shedding light on corruption, conflicts between Benedict's secretary of state and senior cardinals and clashes over the need for transparency at the Vatican bank.... The Vatican wanted to close this case rapidly, so the trial was political and the sentence was mild to put an end to the matter.

The prosecution stressed that there is not proof that Gabriele had accomplices, but some critics are skeptical. (See prior related posting.)

Court Finds No Racial Discrimination Against Employee By Billy Graham Organization

In McCallum v. Billy Graham Evangelistic Association, (WD NC, Oct. 5, 2012), a North Carolina federal district court dismissed a Title VII racial discrimination claim that was brought by a former administrative assistant whose job was eliminated by the Billy Graham Evangelistic Association. Plaintiff, Kimberly McCallum, was the only African American employed in BGEA's executive offices. She claims that her loss of her job was triggered by her complaining that BGEA was biased against African-American churches. In a previous decision in the case, the court concluded that the ministerial exception doctrine did not apply because McCallum's duties were not part of the spiritual and pastoral mission of the church and did not involve church governance. Now the court also concluded that the suit is not barred by the church autonomy doctrine because "religion plays a minimal to non-existent role" in the discrimination claim. However the court granted summary judgment to defendants because "a jury could not reasonably find or infer that discrimination was a motivating factor in any of the challenged employment decisions of BGEA."

Friday, October 05, 2012

Washington High Court Splits In Ministerial Exception Case

In Erdman v. Chapel Hill Presbyterian Church, (WA Sup. Ct., Oct. 4, 2012), the Washington Supreme Court in a case producing 3 opinions (lead opinion, concurrence, dissent/concurrence) dismissed a former church employee's claim against the church for negligent supervision and negligent retention of its minister. The court also remanded plaintiff's Title VII claims for further consideration in light of the U.S. Supreme Court's Hosanna-Tabor decision. The case grew out of a dispute between plaintiff, Angela Erdman (the church's executive for stewardship and chief financial officer) and the church's senior pastor, Dr. Mark Toone, over tax, accounting and reimbursement issues relating to tours to religious and historical sites that Toone led for the church. The dispute led to Erdman's firing.

Erdman claimed that Toone intimidated her, verbally abused her, and threatened her in connection with her employment. She filed a complaint with the Presbytery of Olympia, which ruled against her, and she failed to appeal that decision within the church hierarchy. All the judges of the Washington Supreme Court held that Erdman's negligent supervision/retention claims should be dismissed because civil courts must accept the ruling of an hierarchical church' governing body on questions of discipline, faith, or ecclesiastical rule, custom, or law. In addition, 4 judges in the lead opinion held that Erdman's claims must be dismissed under the ministerial exception doctrine. The concurrence concluded that it was not necessary to reach the ministerial exception question. Four judges in the dissent/concurrence held that the ministerial exception doctrine does not apply here, and that the court should use the "neutral principles of law" approach in deciding the case, saying that this is the "best way to protect churches from judicial interference and individuals from the categorical deprivation of their rights based on the sectarian nature of the tortfeasors."