Illinois Federal District Court, Bound By 7th Circuit Precedent, Grants Preliminary Injunction In Contraceptive Mandate Challenge

In Triune Health Group, Inc. v. U.S. Department of Health and Human Services, (ND IL, Jan. 3, 2012), an Illinois federal district court granted a preliminary injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate against a for-profit company that that facilitates re-entry of injured workers into the workforce. The company's Catholic owners believe that providing their employees with insurance coverage that facilitate abortion, contraception and sterilization constitutes "cooperation with evil that violates the laws of God."  The court concluded that it was bound by the 7th Circuit's decision in Korte v. Sebelius which granted a for-profit employer a preliminary injunction pending appeal in a similar challenge. (See prior posting.) The granting of the preliminary injunction follows the court's denial of a temporary restraining order on Dec. 26. LifeNews reports on the granting of the injunction.

Civil Court May Enforce Pre-Nup Penalizing Husband For Failing To Grant Wife A Jewish Divorce

In Light v. Light, 2012 Conn. Super. LEXIS 2967 (CT Super, Dec. 6, 2012), a Connecticut trial court held that it has jurisdiction to enforce a pre-nuptial agreement requiring a husband, in case of a separation, to pay his wife $100 per day until the husband grants the wife a Jewish religious divorce (get). Rejecting the husband's contention that the prenuptial agreement was a religious document that is not enforceable by a secular court, the court held that it can adjudicate the claim using neutral principles of law:

a determination as to whether the prenuptial agreement is enforceable would not require the court to delve into religious issues. Determining whether the defendant owes the plaintiff the specified sum of money does not require the court to evaluate the proprieties of religious teachings. Rather, the relief sought by the plaintiff is simply to compel the defendant to perform a secular obligation, i.e., spousal support payments, to which he contractually bound himself.

Michigan Federal District Court Rejects Company's Contraceptive Mandate Challenge; 6th Circuit Refuses Stay Pending Appeal

In Autocam Corp. v. Sebelius, (WD MI, Dec. 24, 2012), a Michigan federal district court refused to grant a preliminary injunction to two affiliated manufacturing companies (one a corporation and one an LLC) or their owners who object that the contraception coverage mandate under the Affordable Care Act violates their religious liberty. The court rejected plaintiffs' 1st Amendment free exercise claim, finding that the mandate is a neutral rule of general applicability.  Moving to the Religious Freedom Restoration Act, the court concluded that plaintiffs are unlikely to succeed on their claim that the mandate imposes a substantial burden on their free exercise rights, in part because the company already contributes up to $1500 to each employee for a health savings account whose funds can be used for contraception. The court added:

Plaintiffs argue, in essence, that the Court cannot look beyond their sincerely held  assertion  of  a religiously based objection to the mandate to  assess whether it actually functions as a substantial burden on the exercise of religion. But if accepted, this theory would mean that every government regulation could be subject to the compelling interest and narrowest possible means test of RFRA based simply on an asserted religious basis for objection. This would subject virtually every government action to a potential private veto based on a person’s ability to articulate a sincerely held objection tied in some rational way to a particular religious belief.  Such a rule would paralyze the normal process of governing, and threaten to replace a generally uniform pattern of economic and social regulation with a patchwork array of theocratic fiefdoms.

The court also rejected plaintiffs' free speech claim. Finally the court concluded that plaintiffs had not show the likelihood of irreparable harm for purposes of obtaining a preliminary injunction, since they can continue to refuse to offer contraception coverage while the case is pending. The tax penalty they will incur if they ultimately lose will likely not be assessed or paid until after the case is decided.

Plaintiffs appealed the district court's decision to the 6th Circuit and sought an injunction pending completion of the appeal. In a 2-1 decision,the 6th Circuit denied the injunction request but agreed to expedite the appeal of the district court's decision. In Autocam Corp. v. Sebelius, (6th Cir., Dec. 28, 2012), the majority concluded that plaintiffs had not shown a strong likelihood of success on the merits.  Judge Rogers, dissenting, disagreed, saying:

Plaintiffs assert that it would violate their sincere religious beliefs to direct the company that they control to cut checks to pay directly for contraceptive services. They are okay, however, with giving discretionary healthcare money to their employees, who may then choose to buy such services.  If walking this fine line is sincerely accepted as a condition for salvation, it is not up to the government to say that the line is too fine.  Lots of religious lines are fine.  Of course government is not bound by every religious fine line.  But RFRA requires that the government interest be strong before forcing people to cross the line.

On Dec. 31, the  6th Circuit denied plaintiffs' motion for reconsideration. (See prior related posting.) [Thanks to Melissa Rogers for the lead.]

Fiscal Cliff Bill Phases Out High Earners' Itemized Deductions Including Charitable Deductions

As reported by the Wall Street Journal, the legislation to avert the fiscal cliff passed by Congress on Tuesday  (full text of H.R. 8) restores the phase out of itemized deductions for high income individuals. Section 101 of the bill amends current Internal Revenue Code Sec. 68 to accomplish this result. Under the new law, the total of itemized deductions that may be taken by individuals earning over $250,000 and married couples earning over $300,000 will be reduced by 3% of the amount their adjusted gross income exceeds the $250,000 or $300,000 threshold until 80% of the itemized deductions are lost. The itemized deductions impacted include charitable deductions to non-profits, including churches and other religious organizations.  Some worry that the new provision will reduce the amount of charitable giving.

Belgian Court Orders 2 Boys Admitted To Orthodox Jewish Girls' School

YNet News and JTA have both reported recently on an unusual Dec. 21 ruling by a court in Antwerp, Belgium ordering an Orthodox Jewish school for girls affiliated with the Belz Hasidic movement to admit two boys to study there. No Jewish school wanted to admit the students because their father, Moshe Friedman, was formerly a member of the anti-Zionist Neturei Karta, an ultra-Orthodox Jewish group that believes Jews are to have their own state only when the messiah comes. In 2006, Friedman attended a Holocaust denial conference in Iran and was photographed kissing Iranian President Mahmoud Ahmadinejad.  So Friedman latched onto a recent Belgian court decision barring gender discrimination in schools that receive government funding, as most Jewish schools in Belgium do. The court ordered his sons, age 7 and 11, admitted to Bnos Yerushalayim school even though the school claimed that Orthodox Judaism requires separation between boys and girls in schools and argued that there are no male students, teachers or boy's bathrooms in the school. Under the court ruling, which is temporary until a determination is made as to where the boys will attend next school year, the school must pay a fine equivalent to $2600 (US) for each day the boys are not admitted. The school will likely appeal the decision.

Hawaiian Church Can Pursue RFRA Claim To Permit Use of Cannabis

In Oklevueha Native American Church of Hawaii v. Holder, (D HI, Dec.31, 2012), an Hawaii federal district court, in a case on remand from the 9th Circuit (see prior posting), permitted a church's Religious Freedom Restoration Act claim to proceed to challenge enforcement of the federal drug laws. The suit was brought by a church that uses cannabis in its religious ceremonies and by a spiritual leader who founded the church. The court however dismissed plaintiffs' claims under the American Indian Religious Freedom Act, the equal protection clause and the 1st Amendment's free exercise clause. Turtle Talk blog has links to the pleadings in the case.

New Russian Law Mandates Religion Course In Schools

The Moscow Times reported Monday that Russian President Vladimir Putin has signed a new education law passed by the Russian Parliament that, among other things, makes mandatory in all schools a course in fundamentals of religion. The law takes effect on Sept. 1, 2013.

Three Federal Lawsuits Focus On Ownership Of Rhode Island Synagogue's Historic Torah Ornaments

AP reported Monday on three interrelated lawsuits over a proposed sale of Torah finial bells by Newport, Rhode Island's historic Touro Synagogue.  The Torah adornments (known in Hebrew as rimonim) were made in the 1760's or 1770's by a Colonial silversmith.  In 2010, leaders of Touro Synagogue decided to try to sell the rimonim to endow a trust for maintenance of the historic synagogue and keeping a rabbi in residence, while assuring that the rimonim could be viewed by the public.  The rimonim are currently on loan to Boston's Museum of Fine Arts which offered to purchase them for $7.4 million. However, New York City's Congregation Shearith Israel claims that it owns Touro Synagogue, and it opposes the sale. In the mid-1800's Touro Synagogue fell into disrepair and Shearith Israel claims it took ownership of the synagogue, its cemetery and ritual objects.  Leaders of Touro Synagogue say that Shearith Israel merely become trustee for Touro.  In 1903, Touro signed a lease to rent its building from Shearith Israel for $1 per year. Now each side has filed suit in Rhode Island federal district court and Shearith Israel has also filed suit in federal district court in New York.  Shearith Israel wants the congregation removed from the Newport building because it says the congregation is violating the terms of the $1 per year lease by attempting to make the sale.  Touro wants the Massachusetts attorney general, as administrator of charitable trusts, to intervene. Meanwhile, the Museum of Fine Arts has withdrawn its offer to purchase the rimonim until the ownership issue is settled. A Rhode Island federal judge has scheduled a settlement conference in the litigation for tomorrow. Apparently a long-term lease of the rimonim to the museum is a possible compromise.

Montana High Court Upholds Extending Workers Comp Law To Hutterites

In Big Sky Colony, Inc. v. Montana Department of Labor and Industry, (MT Sup. Ct., Dec. 31, 2012), the Montana Supreme Court in a 4-3 decision upheld against constitutional attack amendments to the state's workers compensation law that brings Hutterite Colonies within the definition of those covered when their members perform agricultural, manufacturing or construction services even though members do not receive wages. Instead Hutterites receive food, shelter, clothing and medical care from the Colony.  The new law applies so long as the Colony receives remuneration from outsiders for member services. The majority rejected free exercise, establishment clause and equal protection challenges to the law, finding that the law is neutral in its application and does not single out religious beliefs.

Justice Rice, joined by Justices Cotter and Nelson, dissented arguing that the legislature "created a clear religious gerrymander" in response to complaints about Hutterite colonies competing with other Montana businesses without have to provide workers' compensation insurance. Justice Nelson also filed a separate dissent.  AP reported on the court's decision.

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.)