Student Loses Religious Challenge To RFID Badges After School's Accommodation Offers

In A.H. v. Northside Independent School District, (WD TX, Jan, 8, 2013), a Texas federal district court refused to grant a preliminary injunction to a high school student who objected on religious grounds to wearing a Smart ID badge containing an RFID chip. The student's father claimed that wearing the badge would be the mark of the beast, and he had religious objections to the school tracking his daughter. The school superintendent offered to accommodate the student's religious beliefs by allowing her to wear the badge with the RFID chip and its electronic components removed.  The student and her family still refused, saying that wearing the badge would give the appearance that they supported the program.  The school said that the student's other alternative was to withdraw from the science and engineering magnet school she was attending and return to her regular high school where none of the identification badges contain RFID chips.

In an extensive opinion, the court rejected plaintiff's free exercise, free expression, due process and equal protection claims.  The court said that even if strict scrutiny applies under the 1st Amendment, as it does under the Texas Religious Freedom Restoration Act, that standard has been met. Plaintiff has not shown that the badge imposes a substantial burden on her ability to exercise her religion; the government has shown a compelling interest in requiring the badges; and the school has offered plaintiff an accommodation that should remove any objections. It also concluded that wearing the badge is not expressive conduct, and even if it is it passes constitutional muster.  Wired reports on the decision, as does the Rutherford Institute  (See prior related posting.)

UPDATE: The Jan. 10 San Antonio Express-News reports that an appeal to the 5th Circuit has been filed in the case.

Supreme Court Denies Cert. In Challenge To Restrictions On Guns In Churches

The U.S. Supreme Court yesterday denied certiorari in Georgiacarry.org, Inc. v. Georgia, (Docket No. 12-486, cert. denied 1/7/2013) (Order List).  In the case, the U.S. 11th Circuit Court of Appeals rejected constitutional challenges to a Georgia law restricting the the right to freely carry handguns, knives or long guns in 8 specific locations, including any place of worship. (See prior posting.) The Atlanta Journal Constitution reports on the Supreme Court's refusal to review the decision.

Los Angeles Court Will Not Allow Names of Archdiocese Officials To Be Redacted In Released Abuse Files

In 2007, the Catholic Archdiocese of Los Angeles reached a $660 million settlement with victims of clergy sexual abuse. The settlement also called for a release of confidential priest personnel files. (See prior posting.) Retired federal judge Dickran Tevrizian had been appointed to oversee the file release process, and he ruled that the names of all church employees, including top archdiocese officials, could be redacted to prevent the documents from being used to harass or embarrass the Church. Media organizations, however appealed that ruling to Los Angeles Superior Court Judge Emilie Elias. (LA Times 12/27/2012). Yesterday, according to the Los Angeles Times, Judge Elias agreed with the media and ruled that the names of high-ranking church officials may not be redacted from the documents. She also reversed Judge Tevrizian’s ruling that allowed redaction of the names of priests who had faced only one allegation of abuse.

Russian Orthodox Head Urges Careful Balance In New Legislation To Protect Religious Feelings

In remarks published last Sunday, the eve of Christmas in the Russian Orthodox calendar, Patriarch Kirill, head of the Russian Orthodox Church, urged the Russian government to take a careful approach in new legislation to respond to insults against religion.  Reuters reports on the remarks made as the United Russia party introduced legislation imposing 3 to 5 year prison sentences for situations like the punk rock Pussy Riot protest last February in Moscow's Christ the Savior Cathedral. There the band members were charged with hooliganism instead of insulting religious feelings that carries only a minor fine. (See prior posting.) Ultimately 2 of the band members ended up with 2 year prison sentences. (See prior posting.) Kirill argued that the current small fine under Art. 5.26 of the Russian Code of Administrative Offenses for Insulting Religious Feelings of Citizens is not enough to indicate that society is serious about protecting believers. However, in a statement consistent with the position of President Putin, Kirill warned:

Any regulatory acts regarding the protection of religious symbols and the feelings of believers should be scrupulously worked through so that they are not used for improvised limitation of freedom of speech and creative self-expression.

Supreme Court Denies Cert. In Challenge To Federal Stem Cell Guidelines

Today, the U.S. Supreme Court denied certiorari in Sherley v. Sebelius, (Docket No. 12-454) (Order List). In the case, the U.S. Court of Appeals for the D.C. Circuit upheld the Obama administration's embryonic stem cell research Guidelines against a claim that they violate limitations on such research imposed by Congress under the Dickey-Wicker Amendment, as well as against Administrative Procedure Act claims. (See prior posting.) SCOTUSBlog also reports on the Supreme Court's denial of review.

Ecclesiastical Abstention Defense Not Ground For Removing Case To Federal Court

In Coffey v. Hays, 2013 U.S. Dist. LEXIS 656 (CD IL, Jan. 3, 2013), an Illinois federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 183527, Sept. 6, 2012) and remanded an internal church dispute to state court.  Plaintiff Terrance Coffey sued Rev. R.L. Hays and New Life Apostolic Church in state court seeking reinstatement after he and others were excommunicated by Hays.  Coffey alleged that Hays exceeded his authority as temporary pastor when he imposed the excommunication without approval from the Church's members or trustees. Defendants removed the lawsuit to federal court alleging that the 1st Amendment precludes civil courts from exercising jurisdiction in this kind of ecclesiastical dispute.  The court held that the plaintiff's complaint must raise a federal question in order for the case to be removed. Here the only federal questions were constitutional issues raised by defendants as a defense.

Recent Articles of Interest

From SSRN

• Elizabeth Sepper, Not Only the Doctor's Dilemma: The Complexity of Conscience in Medicine, (Faulkner Law Review, 2013).
• Susan Pace Hamill, Tax Policy Inside the Two Kingdoms, (January 2, 2013).
• Jeremy Waldron, Toleration: Is There a Paradox?, (Toleration, Supererogation, & Moral Duties: Conference in Honour of David Heyd, May-June 2012).
• Robert Wolf, Religious Giving as a Guide to the Principles of Good Taxation, (Journal of Accounting, Ethics and Public Policy, Vol. 13, No. 1, 2012).
• Alba Ruibal, Feminismo, religión y democracia en el proceso de legalización del aborto en la Ciudad de México (Feminism, Religion and Democracy in the Process of Abortion Legalization in Mexico City), (Estudios, No. 27, pp. 13-26, January-June 2012).

From SmartCILP and elsewhere:

• Robert John Araujo, Third Annual Lecture of the John Courtney Murray Chair. John Courtney Murray, S.J.: The Meaning of Social Justice in Catholic Thought, [Abstract], (44 Loyola University Chicago Law Journal 331-347, 2012).
• L. Scott Smith, Religious Toleration and the First Amendment, [Abstract], (22 Kansas Journal of Law & Public Policy 109-137, 2012).
• Theological Argument in Law: Engaging With Stanley Hauerwas. Foreword by John D. Inazu; articles by W. Bradley Wendel, Elizabeth R. Schiltz, Michael P. Moreland, James Logan, Charlton C. Copeland, David A. Skeel, Jr., Cathleen Kaveny, Stephen Macedo, John D. Inazu, Stephen L. Carter, H. Jefferson Powell and Stanley Hauerwas. (75 Law & Contemporary Problems 1-251, 2012).
• Faisal Kutty, Free Expression and An Elusive Middle Ground: Part One, (JURIST - Forum, Dec. 21, 2012).

Court Dismisses DOJ's Claim Against FLDS Towns Alleging Non-FLDS Members Were Denied Access to Zoo and Park

As previously reported, last June the Department of Justice filed a religious discrimination lawsuit in federal district court in Arizona against two neighboring towns, Colorado City, Arizona and Hildale, Utah.  The twin towns have been dominated by the polygamous sect, the Fundamentalist Church of Jesus Christ of Latter-day Saints. In United States v. Town of Colorado City, Arizona, (D AZ, Nov. 29, 2012), an Arizona federal district court dismissed, with leave to amend, one of the Justice Department's claims-- that Hilldale violated Title III of the 1964 Civil Rights Act by denying equal access to a park and a zoo. 42 USC Sec. 2000b permits the Attorney General to sue when anyone has been denied, on the basis or race, religion or national origin, "equal utilization of any public facility which is owned, operated, or managed by or on behalf of any State or subdivision thereof." It was claimed that non-FLDS members were denied equal access to the park and zoo, whose title was held by the FLDS United Effort Plan Trust.  The court concluded that the government had not set out adequate facts to show that the privately owned property was operated or managed by the city of Hilldale, as required by the statute.  The United States subsequently informed the court that it does not intend to file an amended complaint. The court however refused to dismiss claims against the two cities alleging violations of the Violent Crime Control and Law Enforcement Act and the Fair Housing Act. KUTV News reported on these developments last Thursday.

In Employment Discrimination Case, Federal Court Says Veganism Might Qualify As A Religion

In Chenzira v. Cincinnati Children's Hospital Medical Center, (SD OH, Dec. 27, 2012), an Ohio federal district court held that a hospital customer service worker may be able to show that her employer's refusal to accommodate her vegan beliefs amounted to religious discrimination under Title VII and state anti-discrimination laws.  Plaintiff was fired for refusing to be vaccinated against the flu.  She claimed that the discharge violated her religious and philosophical convictions because as a vegan she would not ingest any animal or animal by-products.  In refusing to dismiss the complaint, the court, rejecting defendant's argument that veganism does not qualify as a religion, said:

The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.... The Court’s conclusion is further bolstered by Plaintiff’s citation to essays and Biblical excerpts. 

JD Supra Law News reports on the decision.

Catholic Soup Kitchen Files RLUIPA Challenge To Denial of Permit To Operate

The Day reports that on Friday, the Catholic Diocese of Norwich, Connecticut filed suit in federal district court challenging the decision by the Norwich city planning commission not to extend a temporary permit allowing the St. Vincent de Paul Place soup kitchen to continue to operate in a former Catholic school building. Neighbors had complained of trespassing, foul language and litter by soup kitchen patrons.  The Diocese invokes the Religious Land Use and Institutionalized Persons Act, saying that it has been treated differently than other similar facilities, both religious and non-religious.

S.C. Episcopal Diocese Sues To Claim Property Owneship and Identity

In a Jan. 4 press release and a letter to parishioners from the Bishop, the Episcopal Diocese of South Carolina announced that it, along with 17 parishes, have filed suit against The Episcopal Church to establish the Diocese's right to the real and personal property of the Diocese and its parishes. As explained by Bishop Lawrence:

The Episcopal Church (TEC) has begun the effort to claim the Diocese of South Carolina’s identity by calling for a convention to identify new leadership for the diocese, creating a website using the Diocesan seal and producing material that invokes the name and identity of the Diocese of South Carolina. 

Our suit asks the court to prevent TEC from infringing on the protected marks of the Diocese, including its seal and its historical names, and to prevent it from assuming the Diocese’s identity, which was established long before TEC was formed.  It also asks the court to protect our parish and Diocesan property, including church buildings and rectories, which our forefathers built and even shed blood over, and you have maintained without any investment of any kind from the national church.

The underlying point is that the Diocese disassociated from TEC in October 2012, after TEC attempted to remove me as your bishop.

The Myrtle Beach Sun News reports on the lawsuit.

Recent Prisoner Free Exercise Cases

In Avery v. Elia, 2012 U.S. Dist. LEXIS 182789 (ED CA, Dec. 27, 2012), a California federal magistrate judge recommended dismissing for failure to exhaust administrative remedies an inmate's complaint that his kosher diet card was wrongly revoked.

In Robertson v. Biby, 2013 U.S. Dist. LEXIS 75 (D KS, Jan. 2, 2013), a Kansas federal district court dismissed an inmate's claim that his religious belief that he must hear the Bible read aloud by another person at least every seven years was infringed when his assignment to segregated housing unit kept him from attending congregate services and he was unable to obtain audio equipment as an alternative. The court held that RLUIPA did not support his claim for damages, and his claim for injunctive relief was moot.

In Hernandez v. Pugh, 2013 U.S. Dist. LEXIS 445 (ND OH, Jan. 2, 2013), an Ohio federal district court dismissed an inmate's complaint that when he was observing a Jewish fast, prison officials would not allow him to both get meals during the day to take back to his cell for later and also get an extra meal after sundown,

In Harmon v. Jones, 2013 U.S. Dist. LEXIS 794 (WD OK, Jan. 3, 2013), an Oklahoma federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 183461, Nov. 15, 2012) and held that prison officials had not violated the terms of an injunction previously issued by the court when they   temporarily suspended an inmate from the kosher diet program because he had purchased a jar of strawberry jam, not on the kosher food list, from the prison canteen.

In Cryer v. Clarke, 2012 U.S. Dist. LEXIS 183568 (D MA, Sept. 7, 2012), a Massachusetts federal magistrate judge recommended dismissing plaintiff's complaint that he was denied a daily smudging ceremony, access to Native American ceremonial items, a separate indoor room for Native American worship, access to a sweat lodge for Native American ceremonies, ceremonial tobacco, and a contracted Native American spiritual adviser.

Mandate Challenges By Peoria Diocese, Notre Dame University, Dismissed On Ripeness Grounds

Two courts have handed down decisions dismissing as nonjusticiable suits by non-profit Catholic insitutions challenging the Affordable Care Act contraceptive coverage mandate.  In University of Notre Dame v. Sebelius, (ND IN, Dec. 31, 2012), an Inidiana federal district court dismissed a challenge brought by the University of Notre Dame, saying:

Notre Dame’s claims aren’t ripe, and they don’t have standing to bring them. Both conclusions flow from the government’s creation of a safe harbor for certain employers (including Notre Dame) while it re-works the regulation. As a result, Notre Dame faces no penalty or restriction based on the existing regulatory requirement.

LifeNews reports on the decision.

In Catholic Diocese of Peoria v. Sebelius, (CD IL, Jan. 4, 2012), an Illinois federal district court similarly dismissed a challenge by the Catholic Diocese of Peoria, saying:

The Government has stated that it will not enforce the preventive services provisions in their current form and will issue a new rule that addresses concerns like those of the Diocese prior to August 2013. This Court joins other district courts and the Court of Appeals for the District of Columbia in taking these representations to be a binding commitment. The Court therefore finds that as the Government is in the process of amending the preventive service regulations, those regulations are not fit for judicial review at this time.

House Adopts Rules For New Session Authorizing Continued House Defense of DOMA In Courts

Among the first business of the new 113th Congress was he House of Representatives adoption of H. Res. 5 setting out the Rules of the House for this Congress. Section 4(a)(1) of the House Resolution gives the Bipartisan Legal Advisory Group continued authority to intervene in court cases to defend the constitutionality of the Defense of Marriage Act.  The House originally intervened when the Obama administration decided to no longer defend DOMA's constitutionality. (See prior posting.)  H. Res. 5 provides:

(A) The House authorizes the Bipartisan Legal Advisory Group of the One Hundred Thirteenth Congress— 

(i) to act as successor in interest to the Bipartisan Legal Advisory Group of the One Hundred Twelfth Congress with respect to civil actions in which it intervened in the One Hundred Twelfth Congress to defend the constitutionality of section 3 of the Defense of Marriage Act (1 U.S.C. 7) or related provisions of titles 10, 31, and 38, United States Code, including in the case of Windsor v. United States...;

(ii) to take such steps as may be appropriate to ensure continuation of such civil actions; and 

(iii) to intervene in other cases that involve a challenge to the constitutionality of section 3 of the Defense of Marriage Act or related provisions of titles 10, 31, and 38, United States Code.

(B) Pursuant to clause 8 of rule II, the Bipartisan Legal Advisory Group continues to speak for, and articulate the institutional position of, the House in all litigation matters in which it appears, including in Windsor v. United States.

As reported by AP, in adopting this provision the House majority ignored openly gay Rep. Jared Polis, D-Colo., who objected that Republicans "are seeking to authorize lawyer fees for a costly Federal takeover of marriage that would single out legally married couples for discriminatory treatment under Federal law." [Thanks to Alliance Alert for the lead.]

Obama's Signing Statement Criticizes Conscience Provisions In Defense Bill

Yesterday the President signed H.R. 4310, the 2013 National Defense Authorization Act.  As previously reported, Section 533 of the Act added protections for conscience rights of military members and chaplains. In his signing statement (full text), the President criticized those provisions, apparently concerned that they will be invoked to limit the rights of gay and lesbian members of the armed forces.  The President said:

Section 533 is an unnecessary and ill-advised provision, as the military already appropriately protects the freedom of conscience of chaplains and service members. The Secretary of Defense will ensure that the implementing regulations do not permit or condone discriminatory actions that compromise good order and discipline or otherwise violate military codes of conduct. My Administration remains fully committed to continuing the successful implementation of the repeal of Don't Ask, Don't Tell, and to protecting the rights of gay and lesbian service members; Section 533 will not alter that.

The Chaplain Alliance for Religious Liberty, an organization of chaplain endorsers, responded with a press release which said in part:

The purpose of these provisions is simply to protect the religious liberties of military chaplains who hold to Biblical views concerning sexuality. Several chaplains have already been faced with requests from same-sex couples to have ceremonies in military chapels. Every member of our armed forces should be able to serve without surrendering their beliefs.

[Thanks to Blog from the Capital for the lead.]

Egyptian Official Invites Egyptian Jews In Israel To Return To Egypt

As reported by the Jerusalem Post last week, in Egypt high-ranking Muslim Brotherhood official Essam el-Erian called in a television interview for Egyptian Jews living in Israel to return to Egypt and leave Israel to the Palestinians.  In an interview last month on Dream TV, el-Erian said: "Egyptian Jews should refuse to live under a brutal, bloody and racist occupation stained with war crimes against humanity." Israel's Channel 10, reporting on el-Erian's remarks had a sardonic comment: "After thousands of years since Egyptian Jews left Egypt, finally someone has called for their return." However Al Arabiya characterized Channel 10's comment as expressing "content" over the invitation. Yesterday, AP reported on the spectrum of reactions in Egypt to el-Erian's comments. President Morsi's office dissociated Morsi from the remarks. Some in Egypt saw the invitation as an attempt to create an appearance of tolerance while other minorities, particularly Coptic Christians, are increasingly worried about persecution. Some feared Morsi's statement that every Egyptian has a right to live in Egypt could open the door to claims for compensation by Egyptian Jews in Israel for property taken from them or left behind. Others saw this as part of the attempt by the Muslim Brotherhood to reconcile its historic anti-Israel and anti-Jewish pronouncements with its new responsibilities to govern Egypt. A few in Egypt called for a more serious look at Egypt's past treatment of its Jewish community.

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.