Oregon AG Investigating Bakery's Refusal To Provide Cake For Same-Sex Wedding

The Oregon Attorney General's civil enforcement office has opened an investigation into a baker who refused to furnish a wedding cake for a lesbian couple's marriage.  According to today's New York Daily News, Aaron Klein, the owner of Sweet Cakes in Gresham, Oregon, says he was following his strong religious beliefs in deciding not to be a part of a same-sex marriage. Oregon's Equality Act of 2007 bars sexual orientation discrimination in public accommodations.

Mennonite Pastor Ordered Back To Jail For Refusing To Testify To Grand Jury

AP on Friday reported that Kenneth Miller, a Mennonite pastor from Stuarts Draft, Va., was sent back to jail by a Vermont federal district judge who has ordered him to testify before a grand jury about a man involved in the 2009 flight of Lisa Miller and her daughter to Central America. Kenneth Miller already faces up to 3 years in prison after  he was convicted of abetting an international kidnapping. (See prior posting.). He told Vermont district judge William Sessions III: "If I were to bring testimony against a fellow member of Christ’s kingdom, for honoring Christ’s kingdom’s laws, I would be disloyal to his kingdom and to Christ." Lisa Miller renounced homosexuality, became a Baptist and then a Mennonite, and fled the country after her former same-sex partner was awarded custody of of the daughter. Lisa Miller was originally granted custody, but after she refused to comply with visitation schedules for her former partner, courts in both Virginia and Vermont granted custody to the former partner. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Mine Yildirim, Religion in the Public and Private Turkish Workplace: The Approach of the Turkish Judiciary, (in A Test of Faith? Religious Diversity and Accommodation in the European Workplace, K. Alidadi, M.-C. Faoblets and J. Vrielink, (eds.), Ashgate, 2012).
• Steven H. Resnicoff, The Causes and Cures of Unethical Business Practices – A Jewish Perspective, (January 27, 2013).
• Deirdre M. Bowen, I Wanna Marry You: An Empirical Analysis of the Irrelevancy and Distraction of DOMAs, (January 31, 2013).
• Matthew I. Hall, How Congress Could Defend DOMA in Court (and Why the BLAG Cannot), (Stanford Law Review Online, Vol. 65, p. 92, 2013).

From SmartCILP:

• Haider Ala Hamoudi, Repugnancy in the Arab World, [Abstract], 48 Willamette Law Review 427-450 (2012).
• Javaid Rehman and Stephanie E. Berry, Is "Defamation of Religions" Passe? The United Nations, Organisation of Islamic Cooperation, and Islamic State Practices: Lessons from Pakistan, [Abstract], 44 George Washington International Law Review 431-472 (2012).
• Remembering David Michael Cobin. Introduction by Howard J. Vogel; articles by Paul Finkelman, Daniel Sinclair, Michael J. Broyde, Ira Bedzow and Earl Schwartz; memorial by Michael Tsur. 35 Hamline Law Review 547-673 (2012).

NFL Publishes Copyright Guidelines For Church Super Bowl Viewing Parties

With the Super Bowl about to begin, it should be noted that again this year the NFL has issued Guidelines to prevent copyright infringement by churches that are hosting viewing parties.  As reported by Copyright Community:

A church may hold their “viewing party” in its usual place of worship and must not charge a fee for attending such viewing party. If those requirements are met, the NFL will not object when a church has a party for its congregants to watch the Super Bowl together.”...

If  a church is only using NFL marks and no logos to describe the party in materials distributed to its congregants, the NFL will not object. For example, you can refer to the party as the Super Bowl party and you can refer to the two teams participating (i.e., “San Francisco 49ers vs. Baltimore Ravens”), but cannot use the NFL Shield, Super Bowl or Club logos.

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.