Student Can Move Ahead On Anti-Semitic Harassment Claims

In G.D.S. v. Northport-East Northport Union Free School District, 2012 U.S. Dist. LEXIS 182976 (ED NY, Dec. 22, 2012), a New York federal district court held that a 16-year old plaintiff had adequately stated a federal Equal Protection claim based on deliberate indifference in his suit against the school district in which he had formerly attended high school. Plaintiff alleged that he had been subjected to anti-Semitic harassment and bullying in person and on Facebook by classmates, and that school officials did nothing about the situation even though plaintiff furnished them detailed information about the problem and the names of the harassers. The harassment included numerous instances of mocking use of Holocaust references.  The court held plaintiff had also stated a claim for discrimination on the basis of "creed" under the New York Civil Rights Law.  However the court held that plaintiff's claim under the New York constitution should be dismissed, as should his claim for damages under the state's Human Rights Law.

Missouri Federal Court Issues TRO In Contraceptive Mandate Case, Invoking 1st Amendment As Well As RFRA

In Sharpe Holdings, Inc. v. United States Department of Health and Human Services, (ED MO, Dec. 31, 2012), a Missouri federal magistrate judge issued a temporary restraining order barring enforcement of the Affordable Care Act contraceptive coverage mandate to require a for-profit dairy farming and cheese making business to cover abortifacient devices ( Plan B, Ella and copper IUDs) and related counseling.  In addition to the company, plaintiffs in the case were Charles Sharpe, the founder-owner and CEO of the company, and two employees who "pay a portion of the required premiums and enjoy the benefits of the self-insured program."  In addition to concluding that under the Religious Freedom Restoration Act the mandate and its penalties would substantially burden plaintiffs' free exercise rights, the court held that for 1st Amendment purposes, the mandate is not a neutral law of general applicability:

Plaintiffs have shown to the court’s satisfaction for the purposes of these initial proceedings, that the ACA mandate is not generally applicable because it does not apply to grandfathered health plans, religious employers, or employers with fewer than fifty employees.  Specifically, plaintiffs argue that the ACA mandate’s exemptions clearly prefer secular purposes over religious purposes and some religious purposes over other religious purposes.  Burdens cannot be selectively imposed only on conduct motivated by religious belief.

Suit Seeks CIA's Report On CIA-NYPD Spying On U.S. Muslims

A federal lawsuit was filed last month by the Electronic Privacy Information Center seeking release under the Freedom of Information Act of a report (and related documents) by the CIA's Inspector General on CIA involvement in spying by the New York Police Department on American Muslims. The complaint (full text) in Electronic Privacy Information Center v. Central Intelligence Agency, (D DC, filed 12/20/2012) indicates that the CIA report grew out of investigative articles by Associated Press on NYPD collaboration with the CIA in photographing members of the Muslim community entering mosques, infiltrating Muslim student groups and conducting surveillance of Muslim stores and businesses. Huffington Post yesterday reported on the lawsuit. (See prior related posting.)

District Court Grants Domino's Pizza Founder Preliminary Injunction Against Contraceptive Mandate Enforcement

Another court has granted a preliminary injunction to a for-profit business and its owner, preventing enforcement against them of the Affordable Care Act contraceptive coverage mandate.  In Monaghan v. Sebelius, (ED MI, Dec. 30, 2012), a Michigan federal district court held that the property management company, Domino's Farms Corp., and its owner Thomas Monaghan (founder of Domino's Pizza) had adequately alleged that the mandate imposes a substantial burden on Monaghan's Catholic religious beliefs:

Monaghan contends that his compliance with the mandate would require him to violate his religious beliefs because the mandate forces him, and/or the corporation he controls, to pay for, provide, facilitate, or otherwise support contraception, sterilization and to some extent, abortion....

The Supreme Court has held that "putting substantial pressure  on an adherent  to modify his behavior and to violate his beliefs" substantially burdens a person’s exercise of religion.... [T]he Court is in no position to decide whether and to what extent Monaghan would violate his religious beliefs by complying with the mandate....  Other courts have assumed that a law substantially burdens a person’s free exercise of religion based on that person’s assertions.

The court went on to hold that at this point the government had not carried its burden under the Religious Freedom Restoration Act of showing that it had a compelling interest or used the least restrictive means in burdening plaintiff's free exercise. MLive reports on the decision. (See prior related posting.)

Happy New Year 2013!

Dear Religion Clause Readers:

Happy New Year! As we enter 2013, I want to again thank all of you who read Religion Clause-- both long time followers and those who have discovered the blog more recently. And thanks to all of you who send me leads or corrections. Your input is important in maintaining completeness and accuracy. I read all of your e-mails and comments and appreciate receiving them, even though time constraints often prevent me from replying individually. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want mentioned, I will be happy to honor that request if you let me know when sending me information.

Religion Clause's established format of neutrality, broad coverage and links to extensive primary source material has made it a widely-recognized authoritative source for keeping up on church-state and religious liberty developments around the world. Often Religion Clause carries a story well before mainstream media feature it.  I am pleased that my regular readers span the political and religious spectrum and include a large number of individuals working professionally dealing with church-state relations and religious liberty concerns, as well as journalists and those who teach in this area of law.

I am of course always considering whether any changes in format or coverage would make the blog more useful.  I welcome any suggestions you have. Feel free to post them as a comment to this blog entry, or to e-mail them to me at religionclause@gmail.com. The Sitemeter shows that Religion Clause has attracted over 1,337,500 visits since I created it in 2005. Around 194,700 of these visits came in 2012. That however is somewhat fewer visits than in 2011.  So I encourage you to recommend Religion Clause to others who might find it of interest, or to link to specific posts and share them on social media.

This year I reopened the Comment feature on Religion Clause, though it has not been widely used by readers so far.  Interested readers continue to have several ways to access Religion Clause—by directly connecting to the home page, connecting through a mobile device to a version formatted for Smart phones, subscribing to the RSS feed through any of the popular RSS readers, through e-mail subscriptions, on Kindle, through Twitter, through Facebook and on Newstex sources such as Lexis.  The Religion Clause sidebar has further information on these alternatives.  I also remind you that the sidebar contains links to a wealth of resources.

Best wishes for 2013!

Howard M. Friedman

Scotland Announces Consultation On Marriage Bill That Will Introduce Same-Sex Marriage and Other Changes

On Dec. 12, the government of Scotland announced a Consultation, i.e. published for public comment, a bill that would substantially amend Scotland's law on marriage.  The Marriage and Civil Partnership (Scotland) Bill would introduce same-sex marriage and the religious registration of civil partnerships. Other changes include ones that would allow non-religious belief bodies, such as the Humanist Society of Scotland, to solemnize marriages in "belief ceremonies." (The Dec. 30 Scotsman reports on this.) The Consultation Paper sets out the proposed changes in detail and seeks comment on them.  Section 12 of the Bill assures that provisions for same-sex marriage do not affect freedom of thought, conscience, religion and expression protected by the European Convention on Human Rights. According to the Consultation Paper:

The Lord Advocate (who has responsibility for prosecutions in Scotland) intends, in due course, to publish prosecutorial guidelines on allegations of breach of the peace and threatening or abusive behaviour arising out of opposition to same sex marriage.

The Consultation Paper also deals with treatment of same-sex marriage in schools. The Government plans to introduce a bill in Parliament in 2013.

Belgium Charging Church Of Scientology With Criminal Fraud and Other Offenses

RT News reported Saturday that prosecutors in Belgium have decided to attempt to label the Church of Scientology as a criminal organization and charge it with extortion, fraud, breach of privacy, and illegal practice of medicine. The charges grow out of an investigation begun four years ago into labor contracts used to recruit volunteers. Subpoenas have been issued in the case.

Recent Articles of Interest

From SSRN:

• Yitshak Cohen, The 'Or Sameah' – Halakhah and Jewish Law: R. Meir Simcha Hakohen's Writings on Maimonides' Code, (in Y. Cohen, The 'Or Sameah' – Halakhah and Jewish Law, Ben Gurion University Press, 2012).
• Christoph H.F. Meyer, Kanonistik im Zeitalter von Absolutismus und Aufklärung: Spielräume und Potentiale einer Disziplin im Spannungsfeld von Kirche, Staat und Publizität (Canon Law in the Age of Absolutism and Enlightenment: Scope and Potential of a Discipline between Church, State and Publicity), (Max Planck Institute for European Legal History No. 2012-06, Dec. 2012).
• Kevin P. Lee, The Firearm and the 'Culture of Death': Foundational Presuppositions and Fundamental Questions, (December 26, 2012).
• Sahar F. Aziz, The Muslim 'Veil' Post-9/11: Rethinking Women's Rights and Leadership, (Institute for Social Policy and Understanding Policy Brief, November 2012).
• K. Benson, Legal Pluralisms, Legal Border Zones: Shar'ia Law and Trans-Jurisdictional Migration in the United Kingdom, (Studia Sociologica IV (2012), Vol. 1  pp. 139–150).

Saudi Religious Police Raid Asian Diplomat's Christmas Party

Al-Akhbar reported last week that in Saudi Arabia, the religious police raided a Christmas party at the home of an Asian diplomat and detained at least 41 people for plotting to celebrate Christmas. It is reported that 41 Christians and 2 Muslims were at the party.  The host and the 2 Muslims were "severely intoxicated."  The Saudis have previously banned public Christmas celebrations, but have been ambiguous as to private celebrations. Saudi Arabia's head mufti has condemned invitations to Christmas or wedding celebrations, and a member of the Higher Council of Islamic scholars recently prohibited sending holiday wishes to "heretics" on Christmas or other Christian religious holidays.

USDA Releases Report On Indian Sacred Sites

On Dec. 6, the Department of Agriculture released a lengthy report titled USDA Policy and Procedures Review and Recommendations: Indian Sacred Sites. A 3-page background memo accompanying the report summarizes its findings:

[The report calls] for USDA and the U.S. Forest Service to work more closely with Tribal governments in the protection, respectful interpretation and appropriate access to American Indian and Alaska Native sacred sites on national forests and grasslands. The report recommends steps the Forest Service should take to strengthen the partnerships between the agency, Tribal governments, and American Indian and Alaska Native communities to help preserve America’s rich native traditions.

 Summit County (CO) Citizens Voice provides additional coverage of the report.

In Egypt, Salafists Sue Wealthy Newspaper Owner Over Cartoon Seen As Insulting To Prophet

Daily News Egypt reported last week that a lawsuit was filed by the National Centre for Defence of Freedoms (NCDF) in an Egyptian court against Naguib Sawiris, the owner of Al-Masry Al-Youm newspaper, and the newspaper's cartoonist Doaa El-Adl.  The suit, which has been referred to the chief prosecutor for investigation, revolves around a cartoon (reproduced on Cartoon Movement) depicting an Egyptian man with angel wings and a halo on a cloud with Adam and Eve telling them they would never have been expelled from heaven if they had voted in favor of the referendum. The suit claims the cartoon is insulting to the Prophet.  Apparently Salafist lawyer Khaled El-Masry, secretary-general of the NCDF, interpreted the cartoon as depicting the Prophet Muhammad. In the Air reports that defendant Naguib Sawiris is listed by Forbes as the second wealthiest man in Egypt. Earlier this year, Egyptian courts dismissed for lack of standing lawsuits by Salafist lawyers against Sawiris over another cartoon-- depicting Mickey Mouse with a beard and Minnie Mouse in a veil. (See prior posting.)

Recent Prisoner Free Exercise Cases

In Clark v. Cambria County Prison, 2012 U.S. Dist. LEXIS 179789 (WD PA, Dec. 20, 2012), a Pennsylvania federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 181044,  Nov. 15, 2012) and dismissed an inmate's complaint that his prison does not have separate Jehovah's Witness religious services.

In Davidson v. Masley, 2012 U.S. Dist. LEXIS 182293 (SD NY, Dec. 19, 2012), a New York federal district court refused to reconsider its dismissal for lack of prosecution of a suit by an inmate challenging the manner in which halal food is furnished to inmates at Rikers Island.

In Whittier v. Arpaio, 2012 U.S. Dist. LEXIS 182155 (D AZ, Dec. 27, 2012), an Arizona federal district court dismissed, with leave to amend, an inmate's complaint that he does not have access to church services because of his classification.

Court Grants Mennonite-Owned Business TRO In Challenge To Contraceptive Coverage Mandate

In Conestoga Wood Specialties Corp. v. Sebelius, (ED PA, Dec. 28, 2012), a Pennsylvania federal district court issued a 14-day temporary restraining order barring enforcement of the Affordable Care Act contraceptive coverage mandate against a cabinet and wood specialties company whose Mennonite owners object on religious grounds to furnishing coverage for contraceptives they consider abortifacients. (See prior posting.) The TRO is limited to "the  provision  of  insurance coverage  for  the contraceptive services to which Plaintiffs object on religious grounds." The court set a hearing on a preliminary injunction for Jan. 4.  In granting the TRO, the court said:

In light of the opinions of several courts favoring Plaintiffs’ position in this case, we find that Plaintiffs have demonstrated a reasonable probability of success on the merits of their RFRA  claim.  While  additional  evidence is  necessary to  determine  whether Plaintiffs’ likelihood of success is sufficient to justify an injunction for the duration of the litigation, we find it to be adequate to warrant temporary relief pending a preliminary injunction hearing.

Philadelphia Inquirer reports on the decision.

Missouri City's Ordinance Is Overbroad In Likely Covering KKK Leafleting

In Traditionalist American Knights of the Ku Klux Klan v. City of Desloge, Missouri, (ED MO, Dec. 27, 2012), a Missouri federal district court issued a preliminary injunction against enforcement of a Missouri city's anti-solicitation ordinance because it was drafted so broadly that it likely covers expressive conduct on sidewalks, curbs, medians, and alleyways, as well as on streets.  The court found the ordinance to be overbroad and not narrowly tailored to serve a significant governmental interest.  Plaintiffs in the case, a KKK chapter, wanted to hand out leaflets on topics such as as the impact of Shariah law on the United States, risks to "White Americans" from racially-motivated attacks, information about Klansmen, and risks posed by methamphetamine.

7th Circuit: Contraceptive Coverage Mandate Imposes Substantial Free Exercise Burden On Business Owners

The U.S. 7th Circuit Court of Appeals yesterday, in a 2-1 decision, issued an injunction pending appeal preventing enforcement of the Affordable Care Act contraceptive coverage mandate against a small for-profit construction company. The company's Catholic owners say the mandate violates their religious liberty.  In Korte v. Sebelius, (7th Cir., Dec. 28, 2012), the court explicitly disagreed with the 10th Circuit's holding last week in the Hobby Lobby case that the mandate did not impose a substantial burden on religious exercise. (See prior posting.)  The 7th Circuit majority said:

we think this misunderstands the substance of the claim. The religious‐liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not—or perhaps more precisely, not only—in the later purchase or use of contraception or related services.... [T]he Kortes have established a reasonable likelihood of success on their claim that the contraception mandate imposes a substantial burden on their religious exercise.

In the case, an Illinois federal district court (see prior posting) had found no substantial burden, in part because the company's current health insurance plan covers contraceptives. Apparently plaintiffs were unaware of this until shortly before they filed the current lawsuit. The 7th Circuit majority said: "it is well‐established that a religious believer does not, by inadvertent nonobservance, forfeit or diminish his free‐exercise rights."

Judge Rovner dissented, concluding that plaintiffs had not shown either irreparable harm or a likelihood of success on the merits, saying:

What the Kortes wish to do is to preemptively declare that their company need not pay for insurance which covers particular types of medical care to which they object, despite the fact that neither the company nor its owners are involved with the decision to use particular services, nor do they write the checks to pay the providers for those services.

American Center for Law and Justice issued a press release announcing the decision. Reuters today reports on the decision.

Two Suits Challenge Tax Code Favoritism For Churches

This month, two separate lawsuits were filed claiming that the Internal Revenue Service unconstitutionally favors religious organizations and churches over other non-profit organizations. On Dec. 20, American Atheists announced that, along with two state organizations, it has filed suit in a Kentucky federal district court challenging numerous provisions that advantage religious non-profits.  The complaint (full text) in American Atheists, Inc. v. Shulman, (ED KY, filed 12/20/2012), alleges that churches and many religious organizations are not required to submit an application for a Section 501(c)(3) exemption or pay the fee for applying that is imposed on other non-profits; they are not required to make annual informational filings on Form 990 with the IRS; special procedures need to be followed before civil tax examinations are instituted for churches and religious organizations; and churches are able to take advantage of the parsonage exemption. Plaintiffs allege that this violates the establishment clause and denies them equal protection of the laws. They also claim that this violates the religious test prohibition in Art. VI, Sec. 3 of the Constitution because "501(c)(3) entities are public Trusts."

Meanwhile, this week the Freedom From Religion Foundation, announced a new lawsuit (filed along with one of its local affiliates) challenging the exemption for churches and affiliated organizations from filing an application to obtain non-profit status, paying a filing fee and from filing annual reports on Form 990.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Miller, (WD WI, filed 12/27/2012), claims that these exemptions violate the establishment clause and plaintiffs' equal protection rights. FFRF has previously filed suits challenging the parsonage allowance and the IRS' non-enforcement of electioneering restrictions against churches. (See prior postings 1,  2). Friendly Atheist blog reports on both of this month's cases. [Thanks to Scott Mange for the lead.]

Harsh Sharia Law Applied By Islamists In Northern Mali

The New York Times reported yesterday on the application of a harsh version of sharia law in northern Mali.  Since the Islamist takeover of the region last spring, at least 14 people convicted of theft have had their hand amputated as punishment. Some cases involve theft of guns for use in helping Mali to retake the north. The article has a particularly brutal description of amputation of the hand of the brother of the police commissioner of Gao.  One case of a couple being stoned to death for having children out of wedlock has also been reported. Dozens of others people have been publicly flogged with camel-hair whips or tree branches for smoking in pubic or playing music on the radio. Also, only Koranic verses can be used as cell phone ring tones. Trials are rudimentary, and sentences are often carried out quickly.

Islamic Nations Continue Objections To Certain Proposed gTLDs; Iran Files Late Submittals

As previously reported, last June the Internet Corporation for Assigned Names and Numbers (ICANN) published a list applications for new generic Top-Level Domain (gTLD) names. Several organizations applied for gTLD's that have, or may have, a religious connection or connotation. (See prior posting.) Members of ICANN's Governmental Advisory Committee had until Nov. 20 to file official "early warnings" to applicants raising concerns over specific applications. In that process, several early warnings for proposed religious-related gTLDs were filed. The UAE expressed concern over .islam and .halal.  India raised questions on .islam, .bible, .ram and .halal. (Full ICANN List of GAC Early Warnings). As reported by BNA Electronic Commerce and Law Report yesterday [subscription required], ICANN has now posted a new page linking to correspondence from Government Advisory Committee members  submitted after the early warning deadline.  The only items included so far are from Iran which has targeted 29 gTLD proposals, most because they refer to activities prohibited or regulated by Islamic religious law--proposed gTLDs such as .gay, .poker, .wine.  Iran wants these applications to be withdrawn or rejected, or else wants applicants to provide for the blocking of these domains in countries that object to them. For certain other objectionable domains, such as .imamat, Iran says concerns are so great that only withdrawal or rejection of the application is acceptable to it. Earlier in the process, Saudi Arabia had filed objections to a number of the same top level domain names that are now targeted by Iran. (See prior posting.)

District Court Finds Contraceptive Mandate Does Not Substantially Burden Religious Exercise

Yesterday in Grote Industries, LLC v. Sebelius, (SD IN, Dec. 27, 2012), an Indiana federal district court refused to grant a preliminary injunction to a for-profit business that manufactures vehicle safety systems and its Catholic owners who claim that their religious liberty rights are infringed by the contraceptive coverage mandate under the Affordable Care Act.  The company currently operates a self-insured health plan that excludes coverage for abortifacient drugs, contraception, and sterilization for its 464 full-time employees.  The plan is not a grandfathered one, so that the coverage requirements take effect on Jan. 1.  Focusing on the Religious Freedom Restoration Act challenge, the court held that the mandate does not impose a substantial burden on plaintiffs' free exercise rights. Citing in particular the O'Brien case, a recent Missouri federal district court decision reaching the same conclusion (see prior posting), the court concluded that the burden imposed by the mandate "is likely too remote and attenuated to be considered a substantial burden." It held that its analysis is not changed by the fact that here the plan is a self-insured one.

Acknowledging that Plaintiffs object not just to the use of contraceptives, but to furnishing coverage for them, the court quoted O'Brien's language:

RFRA is a shield, not a sword.  It protects individuals from substantial burdens on religious exercise that occur when the government coerces action one’s religion forbids, or forbids action one’s religion requires; it is not a means to force one’s religious practices upon others. RFRA does not protect against the slight burden on religious exercise that arises when one’s money circuitously flows to support the conduct of other free-exercise-wielding individuals who hold religious beliefs that differ from one’s own...

The court added:

We can imagine a wide variety of individual behaviors that might give rise to religiously-based scruples or opposition, such as alcohol consumption or using drugs or tobacco, or homosexual-related behaviors, all of which can threaten health conditions requiring treatment and care.  If the financial support for health care coverage of which Plaintiffs complain constitutes a substantial burden, secular companies owned by individuals objecting on religious grounds to such behaviors, including those businesses owned by individuals objecting on religious grounds to all modern medical care, could seek exemptions from employer-provided health care coverage for a myriad of health care needs, or for that matter, for any health care at all to its employees.

The court went on to reject 1st Amendment free exercise, establishment clause and free speech challenges, as well as due process and Administrative Procedure Act claims.  It found that the mandate is likely a neutral law of general applicability. It rejected a "compelled speech" argument saying that any subsidy for education and counseling services merely involves speech incidental to the conduct of receiving health care.

4 FFRF Signs Countering Christmas Displays Are Stolen Or Vandalized

In a news release yesterday, the Freedom from Religion Foundation reported that it has put up Winter Solstice banners or signs in 12 cities this year to counter religious displays on public property. Many of the banners use text that calls religion "myth & supestition." However the FFRF signs have been stolen or vandalized in 4 locations-- the Boston Commons; next door to a police station in Gladwin, Michigan; in Warren, Michigan; and in Wilkes-Barre, Pennsylvania where the sign was vandalized in front of TV cameras.