Religion Clause

Friday, October 12, 2012

Suit Filed Challenging NYC Informed Consent Requirements For Certain Ritual Circumcisions

A widely anticipated lawsuit was filed in federal district court in New York yesterday challenging a recently adopted New York City Board of Health regulation requiring informed consent from parents before a controversial method is used in the Jewish religious circumcision of their infant sons. (See prior posting.) As reported by the Wall Street Journal, three Orthodox Jewish organizations and three rabbis sued challenging the city's new requirement that mohels who use metzitzah b'peh (oral suction) when circumcising infants first obtain signed written consent forms from parents warning them of the risk of transmission of diseases such as herpes simplex. The suit contends that the city lacks proof that the procedure poses health risks, and that the regulation unconstitutionally forces private citizens to convey information they do not believe.

UPDATE: The full text of the complaint in Central Rabbinical Congress of the USA and Canada v. New York City Department of Health & Mental Hygiene, (SD NY, filed 10/11/2012) is now available. The complaint asserts a compelled speech claim, as well as free exercise claims under the U.S. and New York state constitutions.

Atlanta Archdiocese Sues Over Contraceptive Insurance Coverage Mandate

The Catholic Archdiocese of Atlanta announced yesterday that it has filed suit in a Georgia federal district court challenging the mandate that health insurance policies cover contraceptive services. Joining the Archdiocese as plaintiffs are the Diocese of Savannah; Catholic Charities of the Archdiocese of Atlanta; and Christ the King School, Atlanta. The complaint (full text) in Roman Catholic Archdiocese of Atlanta v. Sebelius, (ND GA, filed 10/5/2012) alleges that the mandate violates the 1st Amendment, RFRA, the Administrative Procedure Act and amounts to an unconstitutional delegation of legislative authority. Dozens of other Catholic organizations and dioceses have already filed similar suits. (See prior posting.)

Thursday, October 11, 2012

Philippines Enters Agreement With Islamic Rebels; Will Create Area With Sharia Law For Muslims

In the Philippines last Sunday, President Benigno Aquino announced that a preliminary agreement has been reached with the Moro Islamic Liberation Front that will end a Muslim insurgency in Mindanao that has gone on for many years. The framework agreement is scheduled to be signed on Oct. 15. The agreement calls for establishment of an area called Bangsamoro. According to the Philippine Daily Inquirer, Sharia law rather than the Civil Code will apply to Muslims in Bangsamoro, but any law or regulation to be adopted by the region must assure basic constitutional rights and liberties, including separation of religion and state. Any Islamic religious schools (madaris) will be privately funded. The state will continue to regulate public schools, but will be culturally sensitive in creating the curriculum. A 15-member Transition Commission will work out details of the agreement. Some commentators are concerned that the arrangement will infringe religious liberties of both Muslims and Christians in the area.

UPDATE: In the United States, the White House welcomed the signing of the agreement in an Oct. 15 statement by the Office of the Press Secretary. The White House says that the agreement "marks another step toward ending insurrection and restoring good governance."

German Court Refuses To Excuse Muslim Girl From Co-Ed School Swimming Classes

Gatestone Institute reports on a Sept. 28 decision by the Hessian Administrative Court in Germany refusing to excuse a 12-year old Muslim girl from co-ed swimming lessons in her school. The court, emphasizing that religious minorities must avoid segregating themselves, said that the girl's religious beliefs could be accommodated by her wearing a full-body swimsuit (also known as a "burkini"), as do several other Muslim girls at her school. The girl's lawyer said the 12-year old does not want to wear a burkini because it makes her look ugly, and seeing other boys and girls in short clothes violates her modesty. Because of the importance of the case, the court is asking the Federal Administrative Court to review the decision.

Trespass Conviction of Church Member Reversed

In a 2-1 decision in Semenick v. State of Indiana, (IN App., Oct. 9, 2012), and Indiana appellate court reversed the criminal trespass conviction of a long-time church member who was evicted from church services by an off-duty police officer acting as a security guard after the church member complained that a volunteer greeter was speaking too loudly with others during the service. The majority held that the church member had a right to be on church premises and there was no evidence that the off-duty police officer had authority to take sides in a dispute between members and ask one of them to leave. Judge Mathias dissenting argued that defendant's conduct during services was disruptive. The jury, he argued, could reasonably conclude that defendant did not have a contractual interest in the property at issue, and knowingly or intentionally refused to leave the Church after having been asked to do so by an agent of the Church.

Denial of Loan Guarantee for Faith-Based Group Remanded For Consideration of Constitutional Issues

In Care Net Pregnancy Center of Windham County v. U.S. Department of Agriculture, (D DC, Oct. 10, 2012), a Christian pregnancy resource center in Brattleboro, Vermont challenged the Department of Agriculture's denial to it of a loan under the agency's Community Facilities Loan Program. The agency sought to purchase and renovate property for it to use as its permanent facility. While faith-based organizations are eligible to participate in the program, inherently religious activities cannot be supported. Part of Care Net's program included Bible study or Bible centered teaching. The USDA's Appeals Division Hearing Officer concluded that:

Due to the fluctuating nature of [Care Net’s] program and due to a lack of reliable classroom information provided by [Care Net], [the USDA] is unable to realistically separate the eligible activities from the inherently religious activities either by time or space, thereby creating an excessive entanglement between Government and religion.... [Care Net] has not satisfactorily shown that the amount of direct USDA assistance requested does not exceed the cost of the proposed acquisition and renovation attributable to eligible program activities.

The court concluded that this was a reasonable interpretation of the agency's regulations. However the court remanded the case to the USDA's Appeals Division for it to consider Care Net’s claims under the Free Speech and Equal Protection Clauses, the USDA’s defense under the Establishment Clause, and Care Net’s Fair Housing Act claim.

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.