Divided 8th Circuit Panel Issues Stay Pending Appeal In Contraceptive Mandate Case

The U.S. 8th Circuit Court of Appeals yesterday, by a 2-1 vote, issued a stay pending appeal in O'Brien v. Department of Health and Human Services. (Full text of order.)  In the case, 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. (See prior posting.) American Center for Law and Justice issued a press release applauding the 8th Circuit's action.

Texas Seeks To Seize FLDS Church's Compound

Texas Attorney General Greg Abbott announced yesterday that his office has initiated legal proceedings in state court to seize as contraband the 1600-acre YFZ Ranch in west Texas that has functioned as a compound for the polygamous FLDS Church. According to Abbott, "the YFZ Ranch was purchased on the orders of Warren Jeffs, who sought a rural location where the FLDS could operate a polygamist compound where the systemic sexual assault of children would be tolerated without interference from law enforcement authorities." In 2008, a high profile raid on the ranch led to the removal of 415 children by the Texas Department of Family and Protective Services. (See prior posting.)  According to the Search and Seizure Warrant and the Affidavit supporting the warrant filed in state district court, the property "has been used in the commission of Texas Penal Code offenses of first and second degree felonies, including Sexual Assault, Bigamy, Money Laundering and Engaging in Organized Criminal Activity." AP reports on developments.

Egypt Convicts 8 Connected With "Innocence of Muslims" In Abstentia For Capital Crimes

In what may be largely a symbolic move, yesterday a court in Egypt convicted and sentenced to death in abstentia 8 individuals who are connected with the controversial film "Innocence of Muslims."  AP and NBC report on the convictions for "intentionally committing acts to harm the unity of the country and peace of its land;" "calling to divide the country into small states on a sectarian basis and harming national unity;" and "using religion to promote extremist ideas resulting in religious division and disrespect [of] heavenly religion."   The best known of those convicted are the film's producer Mark Basseley Youssef (also known as Eli Basily), and anti-Muslim Florida pastor Terry Jones. Also convicted were 6 other Coptic Christians-- two of whom work in the U.S. for the Coptic group Sadek that calls for an independent Coptic state; a priest who hosts TV programs from the U.S.; a lawyer living in Canada who has previously sued the Egyptian government over riots in 2000 that left 21 Christians dead; and a woman who converted to Christianity and is a critic of Islam.

Decisions involving capital punishment must be reviewed by the country's chief religious authority.  Also, defendants convicted in abstentia of a capital crime would be automatically entitled to an appeal, and thus a retrial, if they were to return to Egypt. Maximum sentences are common in Egypt in cases tried in abstentia.

Suit Challenges Village's Policy That Excludes Religious Programs In Community Rooms

Liberty Counsel, a Christian educational and advocacy group, announced yesterday that it has filed suit in an Illinois federal district court challenging Plainfield, Illinois' policy regarding use of its Community Rooms by outside groups.  The Policy (full text), while permitting a wide variety of meetings, programs and activities, excludes use of the rooms for a dozen specific types of activities including use for "Religious services or other religious purposes."  The complaint (full text) in Liberty Counsel, Inc. v. Village of Plainfield, Illinois, (ND IL, filed 11/28/2012), says that Liberty Counsel wishes to use a community room to present an educational program promoting a Christian view of the founding of America, but is precluded from doing so under the village's policy.  The group claims that this violates provisions of the 1st and 14th Amendments, as well as the Illinois Religious Freedom Restoration Act.

Challenge To Contraceptive Coverage Mandate By Pittsburgh Diocese Dismissed On Ripeness and Standing Grounds

In Zubik v. Sebelius, (WD PA, Nov. 27, 2012), a Pennsylvania federal district court dismissed on ripeness and standing grounds a challenge by the the Catholic Diocese of Pittsburgh, Catholic Charities of Pittsburgh and Catholic Cemeteries Association of Pittsburgh to the contraceptive coverage mandate issued under the Affordable Care Act. The court concluded that:

the safe harbor provisions of the regulation itself protects all of the Plaintiffs from any potential enforcement action until at least January 1, 2014.  Further, the health care plan offered by the Diocese, as well as three of the four health care plans offered by Catholic Cemeteries, share additional protection under the regulations insofar as they are each grandfathered under the ACA.... Defendants have committed to amending the preventive services coverage regulations well before January 2014 to accommodate the religious objections of organizations such as Plaintiffs.

Trib Total Media reports on the decision.

UPDATE: On Jan. 23, plaintiffs filed an appeal with the 3rd Circuit. (TribLive).

Suit Claims "Conversion Therapy" For Gays Violates State Consumer Fraud Act

The Southern Poverty Law Center announced yesterday that it has filed a first-of-its-kind lawsuit in state court in New Jersey on behalf of 6 plaintiffs seeking equitable relief and damages for fraud against an organization that offers "conversion therapy" to gay men.  Defendant is JONAH, Jews Offering New Alternatives for Healing.  The complaint (full text) in Ferguson v. JONAH, (NJ Super Ct., filed 11/27/2012) alleges various violations of New Jersey's Consumer Fraud Act. The Daily Beast reports in depth on the lawsuit.

Poland's Constitutional Court Bars Kosher and Halal Slaughter, But Decision Is Pre-empted By New EU Regulation

AP reports that Poland's Constitutional Tribunal yesterday held that Jewish and Muslim ritual slaughter of animals without first stunning them violates Poland's animal protection laws, and that the agriculture minister unconstitutionally exceeded his powers when he issued regulations in 2004 permitting kosher and halal slaughter.  AFP reports, however, that the ruling is largely symbolic because on January 1, 2013, European Union Council Regulation No. 1099/2009 creating uniform EU rules on animal slaughter goes into effect. That Regulation permits ritual slaughter without stunning so long as the slaughter takes place in a slaughter house.  January 1 is the same date on which the Polish court's ruling takes effect, so-- according to Poland's Agriculture Minister-- it will be immediately overriden by the EU rules. Animal rights activists say it is possible for Poland to request and exception from the regulation.  Poland is a leading exporter of kosher and halal meat to other European countries, last year exporting $259 million worth.

Appeals Court Reverses Denial of Name Change After Gender Reassignment

In In re Steven Charles Harvey, (OK Ct. Civil App., Nov. 20, 2012), an Oklahoma appeals court held that a trial court judge abused his discretion in denying Steven Charles Harvey, who was undergoing a sex change, the right to change his name to Christie Ann Harvey. The trial judge (full text of trial court opinion) had held that it would assist that which is fraudulent to allow the name change because "a sex change cannot make a man a woman or a woman a man." The trial judge argued this could lead to inadvertent or illegal same-sex marriage, or, in case of a crime, could lead police to ignore a female suspect because they had retrieved male DNA.  In support of his denial of the name change petition, the trial court judge quoted from the Biblical book of Genesis: "So God created man in His own image, in the image of God created he him; male and female created he them...." and went on to say: "The DNA code shows God meant for them to stay male and female." The appeals court agreed with petitioner that there is nothing fraudulent in the use of a traditionally female name by one with male DNA. The Oklahoman reports on the appeals court decision.

Saudi-Backed Interreligious Center Opens In Austria

Yesterday, the inauguration ceremony marking the official opening of the King Abdullah bin Abdulaziz International Centre for Interreligious and Intercultural Dialogue (KAICIID) was held in Vienna, Austria, the Centre's home base.  Among those speaking at the opening ceremony was U.N. Secretary General Ban Ki-moon (full text of remarks). As reported by Reuters, KAICIID was launched by Saudi Arabia as an international organization with a multi-faith board to foster interfaith understanding and help deal with health crises. According to the Huffington Post, the Centre is backed by an international treaty signed by Austria, Spain and Saudi Arabia, with support from the Vatican. Saudi Arabia is funding the start-up costs and the first 3 years' budgets. Some in Austria, as well as some Saudi dissidents, are critical of the Centre, fearing that it will focus on the strict Wahhabi version of Islam. It is expected that the Centre's board will eventually hold a meeting in Saudi Arabia, which will pose the question of whether the nation will allow board member Rabbi David Rosen, who is an Israeli citizen, to attend.

Court Rejects Establishment Clause Challenge To Seizure of Funds

In Midamar Corp. v. United States, (ND IA, Nov. 19, 2012), an Iowa federal district court denied a motion by a company that is a leading supplier of Halal food to order release of $454,000 seized by the government from the company's bank account.  According to the Washington Post, the government is suggesting that the company improperly branded and sold meat products as meeting Muslim dietary requirements when that was not the case.  Rejecting the company's motion, the court said in part:

Next, Midamar argues that the court must quash the warrant because, according to Midamar, the government presumably intends to seek an indictment charging Midamar with fraud, and any fraud charges would require the court to define Halal, a religious term without an agreed-upon meaning, in violation of the Establishment Clause of the First Amendment of the United States Constitution.  The court finds that such argument is unavailing.  Midamar cites no  authority in support of its contention that this is an appropriate basis to quash a warrant.  Moreover, such an argument is premature.  The government has not filed any charges against Midamar and, consequently, the court is without jurisdiction to consider the constitutionality of any potential fraud charges.

Priest's Conviction Was Based On Excessive Religious Evidence

In State of Minnesota v. Wenthe, (MN Ct. App., Nov. 26, 2012), a Minnesota appeals court held that the state's clergy sexual conduct statute is not facially invalid under the Establishment Clause.  However, the court upheld the as applied challenge to the law raised by a priest who had been convicted under it for having sex with a woman for whom he served as confessor. The court held that the conviction was invalid under the Establishment Clause because it was based on excessive religious evidence:

the religious evidence provided the jury with religious standards for judging appellant’s conduct.  It invited the jury to determine appellant’s guilt on the basis of his violation of Roman Catholic doctrine, his breaking of the  priestly vows of celibacy, and his abuse of the spiritual authority bestowed on Roman Catholic priests; additionally, the evidence invited concern about the response of church authorities to the victim’s complaint.

The Minneapolis Star-Tribune reports on the decision.

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.