Mennonnite-Owned Business Denied Preliminary Injunction Against Contraceptive Coverage Mandate

In Conestoga Wood Specialties Corp. v. Sebelius, (ED PA, Jan 11, 2013), a Pennsylvania federal district court refused to issue a preliminary injunction against enforcement of the Affordable Care Act’s contraceptive coverage Mandate in a suit brought by a small wood specialties manufacturing company and its five Mennonite Christian owners (the Hahn family). The Hahns believe it would sinful for them in any way contribute to the use of abortifacient contraception.

The court held that secular, for-profit corporations lack free exercise rights under the 1st Amendment and the Religious Freedom Restoration Act, despite the Supreme Court’s holding in Citizens United that corporations have free expression rights. The court also rejected the argument that the corporation could assert its shareholders’ free exercise, saying:

It would be entirely inconsistent to allow the Hahns to enjoy the benefits of incorporation, while simultaneously piercing the corporate veil for the limited purpose of challenging these regulations.

Moving to the owner’s own assertion of their free exercise rights, the court held that for 1st Amendment purposes, the Mandate is a neutral law of general applicability supported by a legitimate governmental interest.  The court also rejected the Hahn family’s claims under the Religious Freedom Restoration Act, concluding that the Mandate does not impose a substantial burden on their exercise of religion:

First, we reject the notion … that a plaintiff shows a burden to be substantial simply by claiming that it is….  

We also find that any burden imposed by the regulations is too attenuated to be considered substantial.  A series of events must first occur before the actual use of an abortifacient would come into play….. 

Finally, we understand, and have carefully considered the fact that the Hahns may be … more concerned with the burden imposed on their religion by the requirement that they provide insurance coverage that may be used to “pay for, facilitate, or otherwise support abortifacient drugs.” … We respect and fully appreciate this concern, and in no way dispute or denigrate its legitimacy and its effect as a burden upon the Hahns’ religious beliefs. However, a line must be drawn delineating when the burden on a plaintiff’s religious exercise becomes “substantial.”  We conclude that, here, that line does not extend to the speculative “conduct of third parties with whom plaintiffs have only a commercial relationship.”

The court also rejected plaintiffs’ Establishment Clause and free speech challenges to the ACA Mandate. (See prior related posting.)

Religion Clause readers may be interested in my new essay posted on Religion Dispatches discussing small business challenges to the contraceptive coverage Mandate.

Federal Court Refuses To Enjoin NYC Circumcision Informed Consent Rule

In Central Rabbinical Congress of the USA & Canada v. New York City Department of Health & Mental Hygiene, (SD NY, Jan. 10, 2013), a New York federal district court refused to issue a preliminary injunction to block enforcement of the New York City Health Department's rule requiring that a mohel (Jewish ritual circumciser) obtain a written informed consent form from parents before he performs a circumcision using the oral suction technique (metzitzah b'peh).  The rule stems from concerns that those Orthodox Jewish mohels using the method can pass on herpes infections to infants. (See prior posting.)  In a 93-page opinion, the court, rejected both compelled speech and free exercise facial challenges to the rules. The court concluded since parents will likely be able to obtain the consent forms from various sources, not just from the mohel who will perform the ceremony, parents will be able to give the signed form to the mohel without any communicative action by the mohel.  It found that for free exercise purposes, the health department regulation is a neutral law of general applicability that protects children's health and parents' ability to care for their children:

Although there are no known instances other than MBP in which direct oral suction during circumcision is practiced, the facial neutrality test is satisfied because the language of the regulation is secular.... Section 181.21 does not accomplish a “religious gerrymander[]” through underinclusiveness ..., nor does it impose “‘gratuitous restrictions’ on religious conduct” through overinclusiveness....

Reuters reports on the court's decision. (See prior related posting.)

Pastor Withdraws From Inaugural Benediction After Furor Over Past Anti-Gay Sermon

As previously reported, Rev. Louie Giglio had been invited to deliver the benediction at President Obama's inauguration later this month.  Now CNN and the New York Times report that Giglio has withdrawn from delivering the benediction in the wake of a furor created when a controversial anti-gay sermon he preached in the mid-1990's surfaced on Think Progress blog. In a statement delivered to the White House and the Presidential Inaugural Committee yesterday, Giglio said in part:

Due to a message of mine that has surfaced from 15-20 years ago, it is likely that my participation, and the prayer I would offer, will be dwarfed by those seeking to make their agenda a focal point of the inauguration. Clearly, speaking on this issue has not been in the range of my priorities in the past fifteen years. Instead, my aim has been to call people to ultimate significance as we make much of Jesus Christ.

The full text of the statement and additional comments have been posted by Giglio on PassionCityChurch blog.

Meanwhile, separately the Presidential Inaugural Committee yesterday announced that President Obama will take the oath on Sunday on the Robinson family Bible, and at the formal ceremonies on Monday will use two  Bibles-- one used by Abraham Lincoln at his first Inauguration (which Obama used in 2009), and a Bible used by the Reverend Dr. Martin Luther King, Jr.

British Appellate Tribunal Upholds Requirement That Christian Care Worker Must Work On Sundays

In Mba v. Mayor and Burgesses of the London Borough of Merton, (EAT, Dec. 13, 2012), Britain's Employment Appeal Tribunal rejected a religious discrimination claim by a care worker at a children's home who was required to work on Sundays in violation of her Christian religious beliefs.  It upheld a decision of an Employment Tribunal in the case that "the employer’s aim in seeking to ensure that all full-time staff worked on Sundays in rotation was legitimate, and was objectively justified, so that she could lawfully be required to do so."   One ground of appeal was that the Tribunal had improperly considered whether not working on Sunday was a "core" Christian belief.  The Appeal Tribunal said that "by using the expression 'core' the Tribunal intended to reflect the evidence put before it from an Anglican bishop that only some Christians felt obliged to abstain from Sunday work – it was thus permissibly commenting on the degree to which Christians numerically would be affected, and not attempting to tell them what was important in their faith." The Guardian yesterday reporting on the opinion complains about the delay by the Employment Appeal Tribunal in posting decisions on its website.

High School Teacher Sues Over Directive To Remove Religious Materials From Classroom

A Cheektowaga, New York high school science teacher has filed a federal court lawsuit against her school district complaining that she was required to remove all personal non-curricular items of a religious nature from her classroom and refrain from promoting religion in her communications with students. The complaint (full text) in Silver v. Cheektowaga Central School District, (WD NY, filed 1/10/2013), asserts that plaintiff Joelle Silver is a devout Christian, and that the school district policy allows teachers to display personal messages, including inspirational messages, in their classrooms and offices-- such as those by the school's social worker promoting gay rights. School officials sent Silver a "counseling letter" telling her to remove from her classroom her posters containing religious messages, a drawing depicting 3 crosses, sticky notes she placed on her desk displaying Biblical quotations, and the Bible Study Club's prayer request box.  The letter also complained that Silver, as monitor of the school's Bible Study Club, was going further and participating in its meetings and activities in violation of school policy.  Silver claims these actions violate the free expression, establishment clause and equal protection provisions of the U.S. Constitution. American Freedom Law Center announced the filing of the lawsuit. The Buffalo News reports that the school's actions came after it received two letters from the Freedom From Religion Foundation.

Marine Corps Judge Advocate Says Base Spouse Clubs Must Admit Same-Sex Spouses

AP reported yesterday that the Marine Corps Staff Judge Advocate has advised its legal officers that spouses clubs operating on Marine bases must admit same-sex spouses. Private organizations are permitted to operate on military bases only if they do not discriminate on the basis of race, religion, gender, age, disability and national origin.  The Staff Judge Advocate advised: "We would interpret a spouses club’s decision to exclude a same-sex spouse as sexual discrimination because the exclusion was based upon the spouse’s sex." The memo was issued after a controversy last month at the Army's Fort Bragg base where a same-sex spouse was denied membership in the Association of Bragg Officer’s Spouses. God and Country blog covers the Marine Corps' latest action.

Ohio Middle School Will Not Remove Jesus Portrait

In the southern Ohio town of Jackson Tuesday night, the school board decided that it will not take down a picture of Jesus that has hung in Jackson Middle School since 1947, despite a complaint from the Freedom From Religion Foundation.  The Columbus Dispatch reports that 300 people turned out for the school board meeting, and only two spoke in favor of removing the picture.  School superintendent Phil Howard said: "the picture is legal because it has historical significance. It hasn’t hurt anyone." The picture was originally provided by a student club and hangs among other pictures in a "hall of honor."

Biden Meets With Faith Leaders On Gun Violence Issue

CNN reports that Vice President Joe Biden and his gun violence committee held an unannounced meeting last night with 12 national faith leaders representing Catholic, Protestant, Evangelical and Pentecostal Christian, Jewish, Muslim, Sikh and Hindu communities. Topics discussed included protection of religious buildings and religious intolerance. Biden asked the faith leaders to use their moral voices to find solutions to the gun violence problem. This was part of a series of meetings with various groups that have an interest in firearms and gun violence issues. (ABC News).

Suit Challenges New Hampshire Education Tax Credits

The ACLU announced yesterday the filing of a lawsuit in New Hampshire state court challenging New Hampshire's newly enacted Education Tax Credit program. Under the program businesses will receive a tax credit equal to 85% of the amount they donate to scholarship organizations that, in turn, fund private and religious elementary and secondary school students.Two-thirds of the state's private school students attend religious schools. The complaint (full text) in Duncan v. State of New Hampshire, (NH Super. Ct., filed 1/9/2013), was filed by the ACLU and Americans United on behalf of 8 plaintiffs. It contends that the tax credit program violates New Hampshire Constitution Part I, Art. 6 (no one shall  be compelled to support religious schools, and all denominations must be treated equally) and Part II, Art. 83 (no tax funds may be used for parochial schools).

Court Denies Small Business Preliminary Injunction Against Contraceptive Coverage Mandate

In Annex Medical, Inc. v. Sebelius, (D MN, Jan. 8, 2013), a Minnesota federal district court refused to issue a preliminary injunction to prevent enforcement of the Affordable Care Act contraceptive coverage mandate against a small for-profit medical device manufacturing company and its devout Catholic CEO.  The court concluded that there was not a likelihood that plaintiffs would succeed on the merits of their Religious Freedom Restoration Act claim because "the Mandate  places  only  a  de  minimis,  not  substantial,  burden  on plaintiffs’  practice  of  religion  under  RFRA." (See prior related posting.)

Rabbinical College Can Proceed With Facial Challenge To Land Use Ordinances

In a 102-page opinion, a New York federal district court in Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, (SD NY, Jan. 4, 2013), dismissed on ripeness grounds a number of "as applied" challenges to the land use ordinances of the Village of Pomona, New York. However the court permitted plaintiffs to proceed with facial challenges to the ordinances under the 1st and 14th Amendments, RLUIPA, the Fair Housing Act and the New York constitution. Plaintiffs alleged that the village adopted the land use ordinances with the deliberate purpose of preventing it from constructing a planned rabbinical college. Plaintiffs never filed a formal application for permission to build the college.  They were merely rebuffed by the village's attorney and in an informal exchange of letters the mayor said the village would not exempt the project from the village's zoning laws.

Use of "Allah" By Non-Muslims Again Erupts As Issue In Malaysia

In Malaysia, the right of non-Muslims to use the word "allah" to refer to God in prayers and religious material has again become a subject of controversy.  In late 2009, a Malaysian court held that the Constitution protected the right of a Catholic newspaper to use the word "Allah" in its Malay-language edition.  However, its decision was stayed pending appeal. (See prior posting.) Last month in his Christmas message, the head of the opposition DAP party called for the federal government to lift its ban on the use of "Allah" in Malay language Bibles shipped to Sabah and Sarawak, where most Malaysian Christians live.  As reported by yesterday's Malaysian Insider, this has led the Sultan of Selangor to call for an emergency meeting of the Selangor Islamic Religious Council to assure enforcement of a 2010 fatwa banning non-Muslim religions from using the term. He has also ordered the Selangor Islamic Affairs Department to take action against groups that continue to question the fatwa.  Meanwhile Sikhs (Malaysian Insider) and Christians (Malaysian Insider) are both concerned about the Sultan's actions.

Christian School's Challenge To Contraceptive Coverage Mandate Dismissed On Ripeness Grounds

In Colorado Christian University v. Sebelius, (D CO, Jan. 7, 2012), a Colorado federal district court dismissed on ripeness grounds a challenge to the Affordable Care Act contraceptive coverage mandate brought by an interdenominational Christian college. Following most other courts that have ruled in similar cases, the court concluded that the case is not ripe for review because the government has begun the process of amending the mandate as it applies to religious non-profits such as Colorado Christian University, and has in the meantime created a temporary safe harbor to protect religious non-profits with conscience concerns from having the coverage requirement enforced against them. (See prior related posting.)  AP reports on the decision.

Persons Who Will Deliver Invocation and Benediction At Obama Inaugural Are Named

The Washington Post reported yesterday that President Obama has selected the individuals who will deliver the opening and closing prayers at his inauguration ceremony on January 21. The invocation will be delivered by Myrlie Evers-Williams, widow of slain civil rights leader Medgar Evers. She will be the first woman and first person who is not a member of the clergy to deliver an Inaugural invocation. The closing benediction will be delivered by conservative Atlanta evangelical pastor Louie Giglio, who draws thousands of college students to his Passion Conferences. One reason for the choice of Giglio is his work in raising awareness of modern-day slavery and human trafficking.  The Constitution's 20th Amendment provides that a President's term starts at noon on Jan. 20th.  Obama will take the oath of office privately on Sunday the 20th, and will then have his formal Inauguration on January 21st that coincides with Martin Luther King Day. The inaugural committee has not yet released details of the Bible that Obama will use for the swearing-in.  The website of the Joint Congressional Committee on Inaugural Ceremonies has a list of the Bibles used in past Presidential inaugurations, and the passage to which it was opened during the swearing-in.

USCIRF Report Criticizes Religious Freedom Conditions In Russia

The U.S. Commission on International Religious Freedom yesterday released the findings stemming from its visit last year to Russia. In an 8- page Policy Brief titled Russia: Unruly State of Law, USCIRF says:

Overall, religious freedom conditions in Russia continue to deteriorate. Chronic serious problems highlighted in previous USCIRF reports remain, including the application of the religion law and the use of the anti-extremism law against peaceful religious groups and individuals. USCIRF is concerned by the arsenal of new laws against civil society passed by the Putin administration in 2012.  Moreover, there are increasing signs of an official policy of “selective secularism” that favors the Moscow Patriarchate of the Russian Orthodox Church (MPROC) over other religious communities. The draft blasphemy bill before the Duma, if passed in the spring of 2013, would further curtail the freedoms of religion, belief and expression.

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.