British Court For First Time Refers Marital Dispute For Arbitration By Jewish Religious Court

As reported by the Hodge Jones & Allen law firm, the English and Wales High Court (Family Division) last week handed down a judgment that for the first time in Britain endorsed the determination of a matrimonial dispute through reference to a Jewish religious court (Bet Din).  In AI v. MT, (EWCH, Jan. 30, 2013), after the parties instituted custody proceedings in British courts, they agreed to refer their disputes to arbitration by a senior rabbi, Rabbi Geldzehler of the New York Bet Din.  They then asked to court to enter an order referring the case to the Bet Din. The court then recounted:

At the outset ... I indicated to the parties that I did not consider the terms of the draft order to be lawful. In particular, they flouted the principle that the court's jurisdiction to determine issues arising out of the marriage... cannot be ousted by agreement. On the other hand, having regard to the parties' devout religious beliefs and wish to resolve their dispute through the rabbinical court, and acknowledging that it always in the interests of parties to try to resolve disputes by agreement wherever possible... I indicated that the court would in principle be willing to endorse a process of non-binding arbitration....

I indicated that I would endorse the parties' proposal to refer their disputes to a process of arbitration before the New York Beth Din on the basis that the outcome, although likely to carry considerable weight with the court, would not be binding and would not preclude either party from pursuing applications to this court in respect of any of the matters in issue....

It was not until September 2011 ... that the New York Beth Din eventually handed down its ruling on the arbitration. The award covered all issues between the parties.... Even then, there were further negotiations between the parties....

There was, furthermore, one remaining impediment. Under Jewish law, it was necessary for the father to give the Get. Within orthodox Jewish culture, great social stigma attaches to a woman who is separated from her husband but has not been granted a Get.... For this reason, the mother was unwilling to agree to the complex provisions of the arbitration award unless the Get was given. Equally, the father was unwilling to agree to give the Get until the court had approved the award and indicated that it would agree to its terms being incorporated in a court order. The solution arrived at by the parties was for the court to convene a hearing, consider the terms of a draft order based on the arbitration award and, if so minded, indicate that it would be prepared to make the order in the best interests of the children, whereupon the father would forthwith attend at the London Beth Din with the mother and go through the lengthy ceremony for the giving of the Get....

DOJ Reaches Settlement With California City Over Permit For Islamic Center

The Justice Department announced Friday that it has reached a settlement with the city of Lomita, California in a RLUIPA lawsuit challenging the city's refusal to allow the Islamic Center of South Bay to tear down existing buildings it is using and replace them with a single worship and activities center. Under the Agreed Order (full text) in United States v. City of Lomita California, (CD CA), the city will consider on an expedited basis a new application from the Islamic Center. The parties have separately reached an agreement on its contents. The city will also comply with training, reporting, record keeping and monitoring provisions set out in the Agreed Order. The order must still be approved by the court. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Thompson v. Smeal, (3d Cir., Feb. 1, 2013), the 3rd Circuit vacated the trial court's decision and remanded for further proceedings an inmate's complaint that Christian inmates were not allowed to congregate for special feasts on Christmas and Easter, even though various other religious groups were allowed special religious meals.

In Weeks v. Corizon Medical Services, 2013 U.S. Dist. LEXIS 10016 (ED MO, Jan. 25, 2013), a Missouri federal district court dismissed an inmate's complaint that he was forcibly injected with a tuberculosis test, in violation of his sincerely held beliefs as a member of The House of Yahweh.

In Lewis v. Zon, 2013 U.S. Dist. LEXIS 10374 (WD NY, Jan. 25, 2013), a New York federal district court dismissed a Jewish inmate's complaint that his RLUIPA and free exercise rights were violated by prison policies in the Special Housing Unit requiring the plastic wrap covering his kosher meals to be removed and barring him from attending congregational services. It also rejected his claim that denying him food he needed for medical reasons on Jewish fast days violates the Establishment Clause.

In Pennick v. Williamson, 2013 U.S. Dist. LEXIS 10420 (WD WA, Jan.25, 2012), a Washington federal district court dismissed on qualified immunity grounds an inmate's complaint that for two days he was mistakenly left off the list of those to receive Passover food.  In a separate order (2013 U.S. Dist. LEXIS 10489, Jan. 24, 2013) the court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 185127, Oct. 19 2012) to allow plaintiff to proceed with his complaint regarding what lists control entitlement to Passover meals.

In Blanks v. Cate, 2013 U.S. Dist. LEXIS 11233 (ED CA, Jan. 25, 2013), a California federal magistrate judge recommended dismissing complaints by a Rastafarian inmate that authorities failed to procure a Rastafarian chaplain, did not provide a separate outside place of Rastafarian worship, delayed issuing renewed artifact chronos and approval of a Rastafarian religious vendor.

In Ward v. Rich, 2013 U.S. Dist. LEXIS 11310 (CD CA, Jan. 25, 2013), a California federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 185223, Sept. 26, 2012) and dismissed claims that an inmate was punished for continually singing gospel songs, and that he was denied his Bible for three days.

In Warren v. Washington, 2013 U.S. Dist. LEXIS 12679 (WD MI, Jan. 30, 2013), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185360, Dec. 10, 2012) and dismissed an Orthodox Jewish inmate's complaint that he was discriminated against, was banned from the building where the Messianic Jewish group was allowed to continue their services, and was forced to practice his religion outside on a smoke pad.

In Crawford v. Bukowski, 2013 U.S. Dist. LEXIS 12113 (CD IL, Jan. 28, 2013), an Illinois federal district court dismissed an inmate's claim that he was denied vegan meals that were required by his religious beliefs.

In Papa v. Chester County Prison, 2013 U.S. Dist. LEXIS 13054 (ED PA, Jan. 31, 2013), a Pennsylvania federal district court dismissed an inmate's complaint that he had not received kosher meals, had rarely seen a rabbi, did not have his worship requests met and received a Tanach only after significant delay.

In Sargent v. New Hampshire Department of Corrections, 2013 U.S. Dist. LEXIS 13964 (D NH, Jan. 31, 2013), a New Hampshire federal magistrate judge in a supplemental report concluded that an inmate's free exercise rights were not violated when he was barred from proselytizing other inmates during the sex offender treatment program.

In Ericson v. Magnusson, 2013 U.S. Dist. LEXIS 12992 (D ME, Jan. 31, 2013), a Maine federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185504, Dec. 18, 2012) and permitted an inmate to move ahead with claims for declaratory or injuntive relief based on his complaint that he was not allowed to attend Protestant worship services or fast, and was not given access to sufficient hymnal books or a baptismal font.

Court Dismisses Challenge to Hebrew National's Kosher Certification

In Wallace v. ConAgra Foods, Inc., (D MN, Jan. 31, 2013), a Minnesota federal district court dismissed a suit by consumers who claim that ConAgra misrepresented on packaging that Hebrew National products are made of "100% kosher beef." Plaintiffs claim that the method of cattle slaughter used by the contractor that slaughters cattle for ConAgra fails to meet standards for kosher slaughter even though a certifying agency, Triangle K, certifies the beef as kosher. The court concluded that whether products meet the standards for kosher meat "is a religious question that is not the proper subject of inquiry" by a civil court, even though this will leave consumers without a remedy, other than not purchasing Hebrew National products or those certified by Triangle K. (See prior related posting.)

Court Dismisses Priest's Suit Against Parishioner On Ecclesiastical Abstention Grounds

In Jennison v. Prasifka, (TX App., Jan. 28, 2013), a Texas state appellate court invoked the ecclesiastical abstention doctrine to dismiss a suit by an Episcopal priest against a parishioner alleging slander, tortious interference with contractual relationship and wrongful discharge. Plaintiff, Raymond Jennison, who also was a stockbroker, sued over a letter that Jeanette Prafiska had written to the Bishop complaining that Jennison had been churning her brokerage account.  In response the Bishop placed Jennison on inactive status as a priest. The court held:

Jennison’s claims ... are inextricably intertwined with the church’s investigation of his performance as a priest and the discipline imposed by the church for inadequate performance.... Therefore, adjudication of Jennison's claims would neccessariIy require an inquiry into and interpretation of canon law, application of church policies, and the church’s assessment of Jennison’s fitness to perform the duties of a priest....[This] would impinge upon the church’s ability to manage its internal affairs and impair the effectiveness of the church’s disciplinary process.

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,