4th Circuit Decides Test For Zoning Denial Substantial Burden Under RLUIPA

In Bethel World Outreach Ministries of Montgomery County v. Montgomery County Council, (4th Cir., Jan. 31, 2013), the U.S. 4th Circuit Court of Appeals clarified the standard to be applied under the Religious Land Use and Institutionalized Persons Act to claims that a zoning denial imposed a "substantial burden" on a church's free exercise of religion.  To show a substantial burden, a religious organization need not show that the challenged land use regulation pressured it to violate its beliefs. Instead, it need only show that the government regulation puts substantial pressure on it to modify its behavior. Also, the religious organization need not show that the land use regulation targeted it. Applying these tests, the court reversed the district court's grant of summary judgment to the county on plaintiff's substantial burden claim. However the court affirmed the dismissal of RLUIPA discrimination and unreasonable limitation claims, as well as of state and federal constitutional claims.

Administration Issues Proposed Rules On Contraceptive Coverage Exemption For Non-Profit Religious Instituitons

The Centers for Medicare & Medicaid Services today issued a Notice of Proposed Rulemaking building on last March's Advance Notice, designed to accommodate objections of religious non-profit organizations to the Affordable Care Act contraceptive coverage mandate. Under today's proposal:

Group health plans of "religious employers" are totally exempt from the contraceptive coverage mandate.  Today's proposal revises the definition of "religious employer" from the March release. The proposed exemption now conforms to language in Internal Revenue Code Sec. 6033-- any church, integrated auxiliary of a church, convention or association of churches, or religious order is a "religious employer." This eliminates a narrower test suggested in the Advance Notice.

Today's proposal also fleshes out accommodations for non-profit religious organizations that do not meet the definition of "religious employer", but oppose providing coverage for some or all contraceptive services  They may self-certify their objection to their health insurance  issuer or third-party administrator. The health insurer will issue the organization's employees (or students if the religious organization is a college or university) an individual market contraceptive coverage policy at no cost. The insurer can afford to do this because the policies cover the same set of individuals they are already insuring, and they will experience lower costs from improvements in women’s health and fewer childbirths.

Today's proposals give no relief to for-profit businesses whose owners object on religious grounds to the contraceptive coverage mandate.

UPDATE: The full text proposed rules were published in the Feb. 6 Federal Register.

LA Archbishop Sanctions Predecessor Over Handling of Abusive Priests

AP reports that less than two weeks after priest personnel files were released in a settlement of a clergy sexual abuse lawsuit (see prior posting), retired Archbishop Roger Mahony and one of his top aides were sanctioned by Mahony's successor, Archbishop Jose Gomez. In a statement (full text) posted on the Archdiocese website, Gomez announced the unprecedented steps:

I cannot undo the failings of the past that we find in these pages. Reading these files, reflecting on the wounds that were caused, has been the saddest experience I’ve had since becoming your Archbishop in 2011.

My predecessor, retired Cardinal Roger Mahony, has expressed his sorrow for his failure to fully protect young people entrusted to his care. Effective immediately, I have informed Cardinal Mahony that he will no longer have any administrative or public duties. Auxiliary Bishop Thomas Curry has also publicly apologized for his decisions while serving as Vicar for Clergy. I have accepted his request to be relieved of his responsibility as the Regional Bishop of Santa Barbara.

The released files show various actions by Mahony and Curry transferring accused pedophile priests and shielding them from law enforcement authorities. (See prior posting).

Iceland's Parliament Gives Secular Life Stance Groups Equal Status With Religions

The National Secular Society reports that this week, Iceland's Parliament (Althing) passed a law to allow the Icelandic Ethical Humanist Association, along with other secular life stance organizations, to register and obtain equal legal status with religions. The new law also provides that babies will no longer be automatically be registered into their mother's religion.  Instead it will be registered into the religion or secular life stance of both parents, but only if both parents have the same religion or life stance.

Fatwa Opposes Lebanese President's Call For Legalizing Civil Marriage

In Lebanon, when couples of different religious affiliations wish to marry, they must travel outside of the country to do so.  Last Sunday, the country's President, Michel Sulaiman , indicated that he would support legislation to create civil marriage inside Lebanon. As reported by Gulf News this week, a day after the President's statement, Grand Mufti Shaikh Mohammad Rashid Qabbani, Lebanon's top Sunni Muslim authority, issued a fatwa stating:

Any Muslim with legal or executive authority in Lebanon who supports the legalisation of civil marriage is an apostate and outside the religion of Islam.

Mandate Challenge By St. Louis Archdiocese Dismissed on Ripeness and Standing Grounds

Echoing the holdings in a number of other cases in which non-profit religious entities have filed suit to challenge the Affordable Care Act contraceptive coverage mandate, a Missouri federal district court on Tuesday dismissed for lack of ripeness and standing the complaint filed by the St. Louis Catholic Archdiocese and its Catholic Charities affiliate. In Archdiocese of St. Louis v. Sebelius, (ED MA, Jan. 29, 2013), the court held:

Because the preventive services coverage regulations are currently undergoing a process of amendment to accommodate Plaintiffs’ religious objections, and because Plaintiffs are protected from enforcement by the safe harbor, the Court concludes that Plaintiffs’ claims are not ripe for judicial review.

The court also concluded that plaintiffs lack standing because promised amendments may result in the mandate never applying to them. St. Louis Review reports on the decision.

2nd Circuit Upholds Middle School's Exclusion of Religious Blessing From Student's Speech At School Ceremony

In A.M. v. Taconic Hills Central Hills School District, (2d Cir., Jan. 30, 2013), the U.S. 2nd Circuit Court of Appeals rejected a free speech claim by a middle school student, the co-president of student council, who was not permitted to include a religious blessing at the end of her remarks at the school's Moving-Up Ceremony. The court concluded that the Ceremony was a school-sponsored expressive activity and that the student's speech would be perceived as being endorsed by the school. It held that under the standard set out by the Supreme Court in its Hazelwood opinion, requiring the student to remove the purely religious content from her speech was reasonably related to the legitimate pedagogical concern of avoiding a violation of the Establishment Clause.

7th Circuit Enjoins Enforcement of Contraceptive Coverage Mandate Against Catholic-Owned Small Business

In Grote v. Sebelius, (7th Cir., Jan. 30, 2013), the U.S. 7th Circuit Court of Appeals in a 2-1 decision issued an injunction pending appeal to prohibit enforcement of the Affordable Care Act contraceptive coverage mandate against a Catholic-owned for-profit small business and its owners. The company (formed as an LLC with a corporation as its managing member) manufactures vehicle safety systems and employs 1148 people at various locations. The majority largely relied on its earlier decision in Korte v. Sebelius (see prior posting) in finding that  plaintiffs' free exercise rights are substantially burdened in violation of the Religious Freedom Restoration Act. The majority concluded that plaintiffs' case here is stronger than in Korte because this is a self-insured plan, and plaintiffs have never covered contraceptive services for their employees. The majority added:

the government’s minimalist characterization of the burden continues to obscure the substance of the religious‐liberty violation asserted here.

Judge Rovner dissented at length, saying in part:

the obligation to cover contraceptives falls not on the Grotes personally but on Grote Industries’ health care plan.... The owners of an LLC or corporation, even a closely‐held one, have an obligation to respect the corporate form, on pain of losing the benefits of that form should they fail to do so....  The Grotes are not at liberty to treat the company’s bank accounts as their own; co‐mingling personal and corporate funds is a classic sign that a company owner is disregarding the corporate form and treating the business as his alter ego. So long as the business’s liabilities are not the Grotes’ liabilities – which is the primary and “invaluable privilege” conferred by the corporate form, ... neither are the business’s expenditures the Grotes’ own expenditures.  To suggest, for purposes of the RFRA, that monies used to fund the Grote Industries health plan –  including, in particular any monies spent paying for employee contraceptive care – ought to be treated as monies from the Grotes’ own pockets would be to make an argument for piercing the corporate veil. I do not understand the Grotes to be making such an argument....

Medical decisions are made in private on an individual basis.  Any given medical decision, depending on the nature of the patient’s condition, the available treatments, and the circumstances confronted by doctor and patient, might be inconsistent with the religious beliefs of one or more owners of the company that sponsors the patient’s workplace insurance.  Holding that a company shareholder’s religious beliefs and practices are implicated by the autonomous health care decisions of company employees, such that the obligation to insure those decisions, when objected to by a shareholder, represents a substantial burden on that shareholder’s religious liberties, strikes me as an unusually expansive understanding of what acts in the commercial sphere meaningfully interfere with an individual’s religious beliefs and practices. 

Default Judgment Upheld Against Old Order Amish Member For Ignoring Building Code

In Eau Claire County v. Borntreger, (WI App., Jan. 29, 2013), a Wisconsin appeals court upheld a trial court's refusal to reopen a default judgment that had been entered against a member of the Old Order Amish for failing to comply with the county building code in constructing a one-family residence. The appeals court concluded that defendant had not established a meritorious religious defense to the provisions of the code that the county sought to enforce, even though defendant might have a religious defense to other provisions of the code. Defendant's religious objections to installing smoke detectors does not excuse non-compliance with the requirement that the building be structurally sound. WTAQ reports on the decision.

FBI Issues New Hate Crime Reporting Guidelines and Training Manual

ADL's Civil Rights Blog reports on the FBI's release last month of a new guide on  reporting of hate crimes titled Hate Crime Data Collection Guidelines and Training Manual. According to the Introduction in the Manual, it

is intended to assist law enforcement agencies in reporting incidents of hate crime to the FBI UCR Program.  It addresses policy, the types of bias crime to be reported, how to identify a hate crime, and guidelines for reporting hate crime.

[Thanks to Michael Lieberman for the lead.] 

Ministerial Exception Ends Wrongful Termination Lawsuit Against United Methodist Agency

In Mills v. Standing General Commission on Christian Unity, (NY Sup. Ct., Jan. 29, 2013), a New York state trial court dismissed a breach of contract wrongful termination lawsuit that had been filed by a former Associate General Secretary of Dialogue and Interfaith Relations for a program-related agency of The United Methodist Church.  The court concluded that the ministerial exception doctrine applies because plaintiff had a role in conveying the Church's message and carrying out its mission.  Deciding the case would require the court to interpret the Church's Book of Discipline. Furthermore plaintiff failed to show that there was an employment contract between him and defendant Thompson Reuters News & Insight reported on the decision.

Amicus Briefs In Same-Sex Marriage Cases Now Available Online

Numerous amicus briefs have now been filed in the two Supreme Court same-sex marriage cases that will be argued on March 26 and 27. A number of the amici are religiously affiliated organizations.  Scotus Blog has links to the full text of all the briefs in Hollingsworth v. Perry and  in United States v. Windsor.

Some Rabbis Will Refuse To Comply With NYC Informed Consent Circumcision Rule

As previously reported, a New York federal district court earlier this month 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 Forward reports today that some Orthodox rabbis say they will refuse to comply with the rule. The American Board of Ritual Circumcision says that its members will not have parents sign the waiver forms. Other Orthodox groups however are not necessarily urging civil disobedience.

Florist Sued For Discrimination After Refusing To Deliver Flowers To Winning Establishment Clause Plaintiff

Following up on a right-to-sue letter it obtained from the Rhode Island Commission for Human Rights (see prior related posting), the Freedom From Religion Foundation has filed a state court lawsuit against a florist who refused to deliver flowers ordered by FFRF for a successful plaintiff in an Establishment Clause case.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Plowman, (RI Super. Ct., filed 1/25/2013), grows out of FFRF's sending of congratulatory flowers to 16-year old Jessica Ahlquist who successfully challenged a prayer mural that hung in the auditorium of Cranston West High School. (See prior posting.) The florist refused to deliver the order, and defended the decision publicly as the right to free speech, saying that an independent owner can choose his customers. The complaint alleges that the refusal violates RI Gen. Stat. Chap. 11-24, Rhode Island's ban on denial of equal access to public accommodations based on religion, or, in this case, based on non-belief. FFRF issued a press release announcing the filing of the lawsuit.

Hare Krishna Priest Sentenced To 3 Years In Visa Fraud Case

Last week, a federal district court in Milwaukee, Wisconsin, sentenced Hare Krishna priest Sagarsen Haldar to 3 years in prison for bringing sham priests from India to the United States under the religious worker visa program, and extorting money from them.  US Indian reports that the priest, also known as Gopal Hari Das, was convicted of conspiracy to defraud the government,

Suit Challenges Mall's Restriction On Proselytizing

The Pacific Justice Institute announced last week that it had filed suit in a Tulare County, California state court on behalf of John Vadnais, an elder at a local church, who wants to share his Christian belief with other shoppers at Visala Mall. Mall management has told him that he may not approach strangers in the mall to talk about religion,  The suit alleges violation of Vadnais' free speech rights and the public accommodation law.

House of Commons Passes Bill Allowing Royals to Marry Catholics

In Britain yesterday, the House of Commons completed its action on the Succession to the Crown Bill. Now that Commons passed the bill on its third reading, it goes to the House of Lords for debate and vote. Among other things, the bill removes the disqualification from succession to the Crown of a royal heir who has married a Roman Catholic. The bill also eliminates consideration of gender in determining the order of succession to the throne, and limits to the 6 people in line for the throne the requirement of royal consent to their marriage. CBC News reported yesterday that Prince Charles is concerned about the impact of the bill on the relationship of the Crown to the Church of England. However the Church of England does not oppose the bill.

School Accommodates Muslim Students' Prayer Needs If They Have High Grades

The Washington Post reported yesterday on an interesting method of accommodating Muslim students' religious needs at Prince Georges County, Maryland, Parkdale High School. The suburban Washington D.C. school allows students who are members of the Muslim Students Association and who have parental permission to do so to leave class and pray together for 8 minutes each day so long as the student has high grades. Ten students currently qualify for the daily pass, and another student is working hard to raise his grades so he can join the prayer group.

Texas Legislator Proposes Offsetting State Tax Refund For Contraceptive Coverage Refusal

As reported by Courthouse News Service yesterday, a bill has been introduced in the Texas legislature that would give offsetting state tax refunds or credits to any business that pays a federal fine for refusing on conscience grounds to offer employees a health insurance plan that includes emergency contraception. H.B. 649 provides that a business is entitled to an offsetting refund of sales taxes, state franchise taxes, and any other tax paid if it refused solely because of the religious convictions of its owner, to comply with the contraceptive coverage mandate. The bill was introduced Jan. 23 by Republican representative Jonathan Stickland.

Iran Sentences Pastor To 8 Years In Prison

Reuters reported yesterday that Iranian-American Christian pastor Saeed Abedini has been sentenced to 8 years in prison by an Iranian court after his attorney had only one day to present his defense to charges of threatening Iran's national security through his leadership in Christian house churches. A U.S. State Department spokesman said: "We condemn Iran's continued violation of the universal right of freedom of religion and we call on the Iranian authorities to respect Mr. Abedini's human rights and release him." (See prior related posting.)