Supreme Court Sends Free Exercise Challenge To Affordable Care Act To 4th Circuit

Yesterday, in an unusual move, the U.S. Supreme Court revived a 4th Circuit case which challenges the Affordable Care Act (ACA) on 1st Amendment, 14th Amendment and RFRA grounds. In Liberty University v. Geithner, plaintiffs claim, among other things, that the ACA permits federal funding of abortions in violation of the free exercise clause and the Religious Freedom Restoration Act. They also claim that the ACA violates the Establishment Clause and equal protection clause because the narrow religious exemptions in the Act favor certain religious adherents. The 4th Circuit dismissed the case, holding that the federal tax Anti-Injunction Act barred the lawsuit, and the Supreme Court declined to review that decision. Plaintiffs, however asked for a rehearing on the decision to deny review, since earlier this year, in National Federation of Independent Business v. Sebelius, the Supreme Court held that the Anti-Injunction Act does not bar a challenge to the ACA.  Yesterday, the Supreme Court held (Order List, Docket No. 11-438):

The petition for rehearing is granted. The order entered June 29, 2012, denying the petition for a writ of certiorari is vacated. The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of National Federation of Independent Business v. Sebelius.

Liberty Counsel issued a press release applauding the court's action. Christian Science Monitor also reports on the court's action. (See prior related posting.)

NYT Discloses More Details On Making of Film "Innocence of Muslims"

Today's New York Times carries a front-page article revealing new details on Nakoula Basseley Nakoula and his making of the controversial film "Innocence of Muslims." A trailer for the film sparked demonstrations around the world. (See prior posting.) According to the Times:

The making of the film is a bizarre tale of fake personas and wholesale deception. And as with almost everything touched over the years by Mr. Nakoula — a former gas station manager, bong salesman, methamphetamine ingredient supplier and convicted con man — it is almost impossible to separate fact from fabrication.

Scotland Reports Data On Religiously Motivated Hate Crimes

On Friday, the Scottish government released a new report, Religiously Aggravated Offending In Scotland  2011-12. The Executive Summary says in part:

There has been an increase in the number of recorded religious aggravation charges in 2011-12 compared with previous years. For this report, 876 charges with a religious aggravation reported in 2011-12 were analysed, compared with 693 charges in 2010-11. This is an increase of 26%..... [T]his increase may be partly due to increased awareness, reporting and recording of these crimes....

Although the number of football-related charges rose in the last year by 16% (from 231 to 267) the proportion went down from 33% to 31% of charges. The number of charges occurring in football stadiums also decreased from 90 (13%) to 67 (8%). This reduction in charges may in part be explained by the increased focus on football-policing and supporter conduct through the work of the Joint Action Group on Football, established in 2011.

Roman Catholicism and Protestantism were most often the religions that were the subject of abuse. The proportional spread of the religions that were targeted was similar to the previous year: 57.7% in 2010-11 and 58.1% in 2011-12 for Roman Catholicism; and 36.5% in 2010-11 and 40.3% in 2011-12 for Protestantism.

Police officers were the most common target of religiously aggravated offending, in over half (51%) of all charges.

Swartzentruber Amish Group Moving From Pennsylvania To Upstate New York

AP reported Saturday that the 21-family congregation of Swartzentruber Amish who have lived in western Pennsylvania are moving to St. Lawrence County in upstate New York rather than continue their battles with local officials over sewage disposal codes. (See prior posting.) Land values in western Pennsylvania have been rising because of the Marcellus Shale natural gas boom.

Recent Articles of Interest

From SSRN:

• June Mary Makdisi, Application of the Principle of Totality and Integrity in American Case Law, (National Catholic Bioethics Quarterly, 2012).
• Avihay Dorfman, Freedom From Religion, (July 31, 2012).
• Gordon A. Christenson, 'Liberty of the Exercise of Religion' in the Peace of Westphalia, (Transnational Law & Contemporary Problems, Vol. 21, 2012).
• Michael  J.T. McMillen, Islamic Home Purchase Financing: A Conceptual Overview, (November 17, 2012).
• Marina Lostal Becerril, The Meaning and Protection of ‘Cultural Objects and Places of Worship’ under the 1977 Additional Protocols, (59 Netherlands International Law Review 3 (2012), pp. 455-72).
• Marina Lostal Becerril, Challenges and Opportunities of the Current Legal Design for the Protection of Cultural Heritage during Armed Conflict, (International Symposium on Cultural Heritage Protection in Times of Risk: Challenges and Opportunities. Yildiz Technical University, ICOMOS ICORP,. Istanbul (Turkey) 2012).
• Nicholas Hatzis, The Church-Clergy Relationship and Anti-Discrimination Law, (Ecclesiastical Law Journal, Forthcoming).
• Geoffrey P. Miller, Taxation in the Bible, (Oxford Encyclopedia of the Bible and Law, Forthcoming).
• Farrah Ahmed and Jane Calderwood Norton, Religious Tribunals, Religious Freedom, and Concern for Vulnerable Women, (Child and Family Law Quarterly, Forthcoming).
• Mohammad Fadel, Seeking an Islamic Reflective Equilibrium: A Response to Abdallahi A. An-Na'im's Complementary, Not Competing, Claims of Law and Religion: An Islamic Perspective, (Pepperdine Law Review, Vol. 39, p. 1257, 2013).
• Avishalom Westreich, Talmud Based Solutions to the Problem of the Agunah, (Agunah Research Unit Volume 4, Deborah Charles Publications, 2012).
• Frederick C. DeCoste, Hitler's Conscience, Redemptive Political Emotions, and the Politics of Fear, (November 23, 2012).

SSRN --from Erasmus Law Review Vol. 5, No. 1, 2012:

• Wouter De Been and Sanne Taekema, Religion in the 21st Century Debating the Post-Secular Turn.
• Veit Bader, Post-Secularism or Liberal-Democratic Constitutionalism?
• Markha Valenta, Pluralist Democracy or Scientistic Monocracy? Debating Ritual Slaughter.
• Ann-Sophie Vandenberghe, Regulating the Relationship between State and Religion: An Economic Approach.
• Kristin  A.M. Henrard, Duties of Reasonable Accommodation in Relation to Religion and the European Court of Human Rights: A Closer Look at the Prohibition of Discrimination, the Freedom of Religion and Related Duties of State Neutrality.
• Marlies Galenkamp, Locke and Bayle on Religious Toleration.

From SmartCILP:

• Amy Adler, The First Amendment and the Second Commandment, 57 New York Law School Law Review 41- 58 (2012/13).
• Alan Brownstein, Continuing the Constitutional Dialogue: A Discussion of Justice Stevens's Establishment Clause and Free Exercise Jurisprudence, 106 Northwestern University Law Review 605-656 (2012).
• Erwin Chemerinsky, A Fixture on a Changing Court: Justice Stevens and the Establishment Clause, 106 Northwestern University Law Review 587-603 (2012).
• Nicole Stelle Garnett, Are Charters Enough Choice? School Choice and the Future of Catholic Schools, 87 Notre Dame Law Review 1891-1916 (2012).
• Edward Whelan, The HHS Contraception Mandate vs. The Religious Freedom Restoration Act, 87 Notre Dame Law Review 2179-2190 (2012).

Britain's House of Lords Debates Role of Religion In Society

Last Thursday, Britain's House of Lords held a 90-minute debate on the role of religion in society in the United Kingdom. (Full text of the debate.) Lords from numerous faith traditions spoke. The concluding statement was made by Baroness Warsi, Minister for Faith and Communities, who said in part:

This Government believe that religion plays a vital role in British society. Not only do we support people in their right to follow a faith if they choose to do so; we also celebrate faith and faith communities' contribution to society...

Places of worship of different faiths in a town or city can sometimes be unaware of the work each is doing, often to address similar problems. The Government want to help build effective, co-operative working relationships between people of different faiths.... The Government are also happy to support A Year of Service, to highlight and link up faith-based volunteering efforts during Her Majesty the Queen's Diamond Jubilee year....

The Government are also committed to maintaining the status of religious education as a compulsory subject that all pupils must study throughout their schooling, subject to parental choice. Religious education is important so that children can understand the history that has shaped the values and traditions of this country, forming a key part of promoting the spiritual, moral, social and cultural development of children and young people.... The Government also remain committed to the provision of collective worship in schools-or, as I knew them, assemblies.

... UK has a strong Christian heritage.... Britain is proud of its established church and Europe must be more confident in its Christianity. It is therefore right that religious education reflects the fact that the religious traditions of Great Britain are in the main Christian. Last year, every state school in England was provided with a King James Bible to mark its 400th anniversary and recognise the huge influence it has had on our culture, language, society and values....

The noble Lord, Lord Curry, also raised concerns about the perceived marginalisation of Christians. I am in receipt of the Christians in Parliament All-Party Parliamentary Group report setting out these concerns, and we are currently considering a response to that....

This Government believe that faith should have a seat at the table in public life.... [T]his is not a position of privilege but that of a strong contributor to the public debate.... This Government have held faith receptions at Downing Street for major festivals: Vaisakhi, Eid, Hanukkah and Diwali-and, yes, it was right that this coalition Government introduced the celebration of Easter as well.

Preachers' Access To Tour of Lights Festival In Court Again

Last year, a Minnesota federal district court granted a preliminary injunction to prevent city of Duluth police officers from interfering with activities of two street preachers at the Bentleyville Tour of Lights-- a holiday festival held each year on city property, but sponsored by a private non-profit group. (See prior posting). This year, the city is attempting to limit the preachers to a new "First Amendment zone" created in a parking lot outside one of the entrances to the festival. According to the Duluth News Tribune, last Tuesday the preachers filed a new motion in federal district court again seeking an order that officials allow them inside the park during the Tour of Lights. The city, however, says it has negotiated a new contract with festival sponsors that allow them to set rules on who is allowed in the display.

UPDATE: Here is the full text of the motion to enforce the preliminary injunction and hold defendants in contempt.

Recent Prisoner Free Exercise Cases

In Pouncil v. Tilton, (9th Cir., Nov. 21, 2012), an inmate challenged under RLUIPA prison officials' denial to him of conjugal visits with his second wife. The 9th Circuit had that the statute of limitations had not run on his claims despite the fact that he had earlier been denied conjugal visits with his first wife  pursuant to the same regulation.

In Cartwright v. Woody, 2012 U.S. Dist. LEXIS 165122 (ED VA, Nov. 19, 2012), a Virginia federal district court dismissed an inmates complaint that inmates must sometimes place their names on a sign-up sheet to attend religious services, and that more Bibles than Qur'ans are available at the jail.

In Contreraz v. Adams, 2012 U.S. Dist. LEXIS 165884 (ED CA, Nov. 19, 2012), a California federal magistrate judge refused to permit an inmate to proceed in forma pauperis  in his attempt to obtain a religious exemption from the prison's grooming requirements because plaintiff had brought at least 3 other suits that were dismissed as frivolous.

In McDaniel v. Lanigan, 2012 U.S. Dist. LEXIS 166716 (D NJ, Nov.21, 2012), a New Jersey federal district court dismissed, with leave to amend, an inmate's claims relating to denial of Halal meals to Muslim inmates and denial to Jewish inmates of kosher milk, glatt kosher meals and wearing of the tallit, since it was not clear how any of these impacted plaintiff.

In Desper v. Ponton, 2012 U.S. Dist. LEXIS 166546 (ED VA, Nov. 20, 2012), a Virginia federal district court dismissed an inmate's free exercise and RLUIPA challenges to a sign-up policy for religious services, and a policy discouraging transient offenders at reception centers from receiving publications, including Bible study materials.

In Williams v. Fluaitt, 2012 U.S. Dist. LEXIS 166820 (ED WA, Nov. 21, 2012), a Washington federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 166826, Oct. 31, 2012) and denied an inmate's request for a preliminary injunction because the relief requested (relating Ramadan meal request contracts and denial of separate Nation of Islam services) were unrelated to the complained violation (advance sign-up for Ramadan meals).

Settlement Allows Florida Christian College Students To Qualify For State Grant Program

A settlement was reached earlier this month in Florida Christian College v. Shanahan, a federal court challenge to Florida Christian College's exclusion from the Florida Resident Access Grant program. (See prior posting.) The state had contended that the school did not meet the "secular purpose" requirement for participation that is imposed by Florida law.  The Lakeland, Florida Ledger reported Friday that the settlement:

will allow four students who were named plaintiffs in the case to receive so-called FRAG grants during the spring semester of this academic year — and will admit the college into the program for the 2013-14 academic year.

Also, the settlement indicates the state Department of Education will revise the way it determines whether religious colleges qualify for the program, including getting rid of what was dubbed a "secularity checklist.

Alliance Defending Freedom issued a Nov. 15 press release reporting on the settlement, and also made available the full text of the Mediation Settlement Agreement.

Zimbabwe Supreme Court Orders Break-Away Anglican Bishop To Return Church Properties

AP reports that Zimbabwe's Supreme Court on Monday ruled that Anglican Church property in the country must be returned by break-away Bishop Nolbert Kunonga to the Anglican Province of Central Africa.  Kunonga was excommunicated in 2007 for inciting violence in sermons supporting President Robert Mugabe's ZANU-PF Party.  Kunoga formed a new diocese and took over the Cathedral in Harare and other church property with the help of police. Kunoga says he left the Anglican Church because of its position on gay marriage. According to the Financial Gazette, the Anglican Province is undertaking an audit of returned properties to determine damage and missing items.

In Recently Released Opinion, Court Dismisses Damage Claim Against Proponents of Ground Zero Mosque

In Forras v. Rauf, (NY County Sup. Ct., Sept. 26, 2012) (a decision that was not made available until Nov. 20), a New York trial court dismissed plaintiff's suit to recover damages against defendant who proposed to construct a mosque and Islamic cultural center near Ground Zero in New York City.  Plaintiff, who leased nearby office space also used as a part-time residence, alleged nuisance, negligent infliction of emotional distress and assault. He claimed he suffered increased anxiety and fear due to Islamic rituals in one room  inside the building. The court found that many of the alleged injuries were the result of the attack on 9-11 and not because of the proposed mosque construction.

TRO Issued To Uphold Student's Religious Objections To Wearing ID Badge With RFID Chip

The Rutherford Institute announced Wednesday that it has obtained a temporary restraining order in a suit filed in state court in Bexar County, Texas on behalf of high school student Andrea Hernandez. Plaintiff objects for religious reasons to wearing a Smart ID badge that is implanted with an RFID chip as part of the school's Student Locator Project. The complaint (full text) in Hernandez v. Northside Independent School District, says that plaintiff objects on the basis of scriptures in the book of Revelation that "an individual's acceptance of a certain code, identified with his or her person, as a pass conferring certain privileges from a secular ruling authority, is a form of idolatry or  submission to a false god." Plaintiff also refused the school's proposed accommodation under which the RFID chip would be removed, but plaintiff would still wear the ID badge around her neck as a symbol of her participation in the school's project. The suit claims that the school is violating plaintiff's rights under the Texas Religious Freedom Act. It also alleges that plaintiff's free speech rights were infringed when school officials refused to allow her to distribute petitions and fliers at school criticizing the Program. [Thanks to Mark Scarberry via Religionlaw for the lead.]

Germany's Federal Labor Court Rules On Church Employees' Right To Strike

Reuters yesterday reported that Germany's Federal Labor Court has handed down a decision which has both sides claiming victory on the question of whether employees of church organizations have the right to strike. Together, Catholic and Protestant schools, hospitals and social service agencies employ 1.3 million people in Germany.  Historically, the church groups, relying on the provision in the German constitution that guarantees them the right to manage their own internal affairs, have barred strikes in favor of mediation in labor disputes.  However, Germany's service sector union says that church organizations have undercut wages in recent years by outsourcing many jobs. The Labor Court concluded that: "Limiting the churches' right to self-determination by a strike is not illegal in all cases."  However, it also said that strikes "severely limit social ministries and damage the credibility of the church."  It said churches should allow unions more rights in the mediation process if they want to avoid strikes. According to Deutsche Welle, both sides say they will appeal the Federal Labor Court's ruling to the Federal Constitutional Court. Meanwhile a case from Romania under consideration by the European Court of Human Rights may resolve the issue of whether churches can prohibit strikes or unionization.

Fort Worth Diocese Settles Sex Abuse Lawsuit

The Fort Worth (TX) Catholic diocese on Tuesday settled a lawsuit brought against it by a man who was sexually abused by a priest between 1982 and 1987, beginning when plaintiff was 16 years old.  The Fort Worth Star Telegram reports that under the settlement, accused priest Rev. William Paiz will not work  in a position that puts him in contact with children or young adults and Paiz will not be allowed to present himself as a priest. He will be supervised by Claretian Order officials. Also the diocese must publicly acknowledge that  plaintiff's allegations are credible,

Opus Dei Sues Game Maker In Denmark For Trademark Infringement

AP reported yesterday that in Denmark, the Catholic organization Opus Dei is suing the Danish company Dema Games for trademark infringement.  The company is selling a philosophy-themed strategy-based card game called "Opus Dei. Existence After Religion." The lawsuit demands damages equivalent to $51,500 (US), cancellation of the company's trademark registration for the game,and closure of the company's website where the game is for sale. Dema Games says that no one can claim exclusive rights to religious concepts.

Obama Issues Presidential Proclamation For Thanksgiving Day

President Obama this week issued the official Presidential Proclamation-- Thanksgiving Day, 2012 setting today as a National Day of Thanksgiving. The proclamation reads in part:

When President George Washington marked our democracy's first Thanksgiving, he prayed to our Creator for peace, union, and plenty through the trials that would surely come. And when our Nation was torn by bitterness and civil war, President Abraham Lincoln reminded us that we were, at heart, one Nation, sharing a bond as Americans that could bend but would not break....

On Thanksgiving Day, individuals from all walks of life come together to celebrate this most American tradition, grateful for the blessings of family, community, and country. Let us spend this day by lifting up those we love, mindful of the grace bestowed upon us by God and by all who have made our lives richer with their presence.

Water Tower Cross Eliminated By Town After Complaint

As reported yesterday by the Bolingbrook Patch, the Chicago (IL) suburb of Alsip this year will not display a cross that it has put up for nearly 35 years at Christmas time on the city's water tower. A letter to residents from the town's mayor says that a complaint by the Freedom From Religion Foundation led to the decision, because "the Village cannot afford to waste any tax dollars on a lawsuit that simply cannot be won."  The mayor says that in future years, a different holiday decoration will be placed on the water tower.

Good News Clubs Challenge California's Requirement That Schools Charge For Space Used For Religious Services

The Good News Clubs filed suit in federal district court on Monday challenging the constitutionality of California Education Code Secs. 38131(b)(3) and 38134(d) which together require schools to charge an amount at least equal to direct costs for use of school space for religious services, but make charging of fees discretionary when school space is used by other civic groups.  The complaint (full text) in Child Evangelism Fellowship, Inc. of West Orange County v. Buena Park School District, (CD CA, filed 11/19. 2012), alleges that the school district's regulations that allow use without charge of school space by nonprofit organizations organized to promote youth and school activities, but not to the after-school religious activities of Good News Clubs amounts to unconstitutional viewpoint discrimination, as well as infringing free exercise, equal protection and establishment clause rights. The American Center for Law and Justice issued a press release announcing the filing of the lawsuit.

Church's RLUIPA Suit Dismissed On Ripeness Grounds, Avoiding Decision On Prudential Standing

In Cassidy v. City of Brewer, (D ME, Nov. 19, 2012), a Maine federal district court dismissed on ripeness grounds a RLUIPA religious discrimination claim because plaintiff did not appeal the decision of the city's code enforcement officer to the zoning board of appeals. As reported by the Bangor Daily News, Rock Church had wanted to expand in rented space in a shopping center, but the code enforcement officer held that the expansion would lose the church's status as a nonconforming use.  The court held that it did not need to decide whether the church's landlord as a RLUIPA plaintiff must meet prudential standing requirements as well as Article III standing requirements, saying:

If he must, then the Magistrate Judge is certainly correct that this commercial landlord plaintiff, who is not a religious institution and whose church tenant has abandoned his lease, does not meet those requirements in bringing this RLUIPA challenge against the City of Brewer.  But there are cases that read RLUIPA’s language as requiring that a plaintiff meet only the Article III standing requirements and not the additional prudential requirements.

The federal magistrate judge's opinion in the case, dealing at length with the standing issue, is at  2012 U.S. Dist. LEXIS 165723 (Sept. 12, 2012).

Oklahoma High Court Dismisses Challenge To Voucher Program On Standing Grounds

Last March, an Oklahoma state trial court judge struck down Oklahoma's school voucher program for special needs students, finding that the program violates the state Constitution's ban on use of public funds to benefit any sectarian institution. (Constitution, Art. II-5). 38 of the 40 schools eligible to enroll students under the program are Christian schools. (See prior posting.) Now in Independent School District No. 5 of Tulsa County v. Spry, (OK Sup. Ct., Nov. 20, 2012), in a 7-2 decision, the Oklahoma Supreme Court reversed that decision on standing grounds. It held that the school districts which were plaintiffs in the lawsuit lack standing because they are not taxpayers who have a right to challenge the program, nor are the funds involved taxes from taxpayers in the districts' county revenue streams that a county assessor is improperly reducing or disposing of. Becket Fund issued a press release announcing the state Supreme Court's decision.