Spanish Supreme Court Invalidates City's Burqa Ban

ANSAMED reports that on Thursday the Supreme Court of Spain overturned a local ban on clothing that covers the face, such as the burqa.  The Catalonian city of Lierda enacted the ban in 2010.  In a challenge to it by the Catalan Muslim Association, the Supreme Court ruled that banning the Islmic veil infringes religious freedom. The full Supreme Court opinion in Spanish is available from this link.

Colorado Appeals Court Rejects Challenge To School Voucher Program

In Taxpayers for Public Education v. Douglas County School District, (CO App., Feb. 28, 2013), a Colorado state appeals court in a 2-1 decision upheld  Douglas County, Colorado's "Choice Scholarship Program" under which parents of eligible students could obtain vouchers covering a  portion of the tuition costs of sending their children to certain private schools, a majority of which have religious affiliations. The appeals court majority held that plaintiffs lack standing to claim that the scholarship program violates the Colorado Public School Finance Act.  The majority also concluded that the voucher program does not violate provisions of the Colorado Constitution that prohibit funding or support of sectarian institutions. Judge Bernard dissented, arguing that the program violates Colorado Constitution Art. IX, Sec. 7 that prohibits state support for any school controlled by any church or sectarian denomination. The ACLU issued a press release, saying it would appeal the decision to the Colorado Supreme Court.

Justice Department Briefs Its Position On Merits In Both SCOTUS Same-Sex Marriage Cases

The U.S. Department of Justice has now filed briefs setting forth its arguments on the merits in the two same-sex marriage cases that will be argued before the Supreme Court later this month.  On Feb. 22, the Justice Department filed a merits brief (full text) in United States v. Windsor, the challenge to the constitutionality of the Defense of Marriage Act.  Yesterday the Justice Department filed an amicus brief (full text) with the U.S. Supreme Court in Hollingsworth v. Perry, the federal equal protection challenge to California's Proposition 8. In both cases, the Justice Department argued that classifications based on sexual orientation should, when challenged under the Equal Protection Clause, be subject to heightened scrutiny. In its Hollingsworth brief, DOJ stated directly that: "The President and Attorney General have determined that classifications based on sexual orientation should be subject to heightened scrutiny for equal protection purposes."

In its Windsor brief, DOJ argued rather straight forwardly that Section 3 of DOMA fails heightened scrutiny. In its Hollingsworth brief, however, the Department of Justice took a more complicated position.  As discussed by Lyle Denniston at SCOTUS Blog, DOJ took the position that California's Proposition 8 fails the heightened scrutiny test, but in an argument that stops short of contending that the U.S. Constitution requires all states to recognize same-sex marriage.  DOJ reasoned that California does not substantially further any important governmental interest by barring same-sex marriage since it already gives same-sex couples the right to enter domestic partnerships that confer all the same rights as marriage.  This argument would apply only to the 8 states that have granted domestic partners or those who have entered civil unions rights equal to those of married couples.

Court Refuses TRO Against Contraceptive Coverage Mandate In Challenge By For-Profit Senior Care Companies

In Briscoe v. Sebelius, (D CO, Feb. 27, 2013), a Colorado federal district court refused to grant a temporary restraining order to a for-profit corporation, two related for-profit LLCs and their evangelical Christian owner who were challenging the application of the Affordable Care Act contraceptive coverage mandate to them. The companies manage and operate senior care assisted living centers and skilled nursing facilities, and offer a self-insurance plan to their over 200 employees. Business owner Stephen Briscoe Briscoe says that his religious beliefs prevent him from including coverage for contraceptives, abortifacients, and sterilization procedures in his companies' insurance plans. The court concluded that plaintiffs' had not shown a substantial likelihood of success on the merits of their claims.

Rejecting plaintiffs' claim under the Religious Freedom Restoration Act, the court held that "secular, for-profit corporations neither exercise nor practice religion." It went on to reject the claim that the mandate imposes a substantial burden on the business owner's practice of religion:

Briscoe claims a substantial burden based on what his companies must do, rather than what he himself must do. The AHCA’s mandate does not prevent Briscoe from personally exercising his religion....  [A]ny burden Briscoe claims on his ability to exercise his religion based on his companies’ compliance with the AHCA mandate, is slight and attenuated. Further, Briscoe’s argument implicitly requests that I disregard the distinction between a corporation and its officers and owners. Briscoe cannot use corporate status to shield himself from liability and at the same use it as a sword to assert an RFRA claim.

The court also rejected plaintiffs' 1st Amendment free exercise, free speech and Establishment Clause challenges.

Texas Diocese's Challenge To Contraceptive Coverage Mandate Dismissed On Ripeness Grounds

In Roman Catholic Diocese of Dallas v. Sebelius, (ND TX, Feb. 26, 2013), a Texas federal district court dismissed on ripeness grounds a challenge by the Catholic Diocese of Dallas to the contraceptive coverage mandate under the Affordable Care Act. The court held that while plaintiff at the time of filing the lawsuit faced sufficiently imminent injury to have standing, subsequent developments require a dismissal for lack of ripeness. The government's Feb. 2013 Notice of Proposed Rulemaking undermine a realistic and pragmatic consideration of the issue at this time.

Canadian Supreme Court Upholds Key Part of Saskatchewan's Hate Speech Law

In Saskatchewan Human Rights Commission v. Whatcott, (Sup. Ct. Canada, Feb. 27, 2013), the Supreme Court of Canada, in a 116-page opinion, upheld the constitutionality of a key provision in the Saskatchewan Human Rights Code, Sec. 14.  However it invalidated a portion of the statute's language.  At issue in the case were 4 flyers critical of homosexuality published and  distributed by William Whatcott. The Supreme Court concluded that 2 of the flyers violated the Saskatchewan ban, while two other flyers did not.

Sec. 14 in part bars publication of any statement

that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.

The court held that while this provision imposes limitations on freedom of expression and conscience, the limitations are permissible under Sec. 1 of the Charter of Rights and Freedoms that allows "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The Court said in part:

[H]ate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society.... Hate speech lays the groundwork for later, broad attacks on vulnerable groups that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts on a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy....

The societal harm flowing from hate speech must be assessed as objectively as possible and the focus must be on the likely effect of the hate speech on how individuals external to the group might reconsider the social standing of the group. Section 14(1)(b) of the Code reflects this approach. The prohibition only prohibits public communication of hate speech; it does not restrict hateful expression in private communications between individuals....

The fact that s. 14(1)(b) of the Code does not require intent by the publisher or proof of harm, or provide for any defences does not make it overbroad.... [T]he preventive measures found in human rights legislation reasonably centre on effects, rather than intent.

However, the court found that some of the prohibitions in Sec. 14 go too far:

[E]xpression that “ridicules, belittles or otherwise affronts the dignity of” does not rise to the level of ardent and extreme feelings constituting hatred required to uphold the constitutionality of a prohibition of expression in human rights legislation. Accordingly, those words in s. 14(1)(b) of the Code ... unjustifiably infringe freedom of expression.... and must be struck from s. 14(1)(b)....

 The Globe and Mail and AFP report on the decision.

Dutch Court Upholds Fine On Orthodox Jew For Failing To Carry ID On Sabbath

AP reported Tuesday that in the Netherlands, an appeals court held that a 2005 law which makes it mandatory to carry an identification card and show it to police on request does not exempt individuals who fail to carry the ID card for religious reasons. The Hague Appeals Court upheld a 60 Euro fine imposed on an Orthodox Jewish man who could not produce the ID card for police on the Sabbath because it was against his religious beliefs to carry anything on the Sabbath. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Ohio High Court Hears Oral Arguments On Fired Science Teacher's Rights

The Ohio Supreme Court yesterday heard oral arguments (video of full arguments) in Freshwater v. Mount Vernon City School District Board of Education.  In the case, a state appeals court upheld the firing of John Freshwater, a middle school school science teacher. The school board based the firing on Freshwater's injecting his religious views, including belief in Creationism, into the classroom and for insubordination in failing to remove certain religious materials from the classroom after being ordered to do so by the school board. (See prior posting.) The oral argument preview posted by the Ohio Supreme Court describes the question at issue as follows:

Did the firing of a public school teacher for violating a school district policy that prohibits teachers from distributing extracurricular materials of a religious nature to students in the classroom or endorsing the beliefs or principles of any religion in the course of instructing students violate the teacher’s right to freedom of speech and freedom of religion under the First Amendment of the U.S. Constitution?

AP and the Columbus Dispatch, reporting on yesterday's oral arguments, said that the Justices particularly questioned David Kane Smith, attorney for the school's insurance company, who argued the case for the school board.

4th Circuit Upholds Regulation of Fortune Tellers Over 1st Amendment Objections

In Moore-King v. County of Chesterfield, Virginia, (4th Cir., Feb. 26, 2013), the U.S. 4th Circuit Court of Appeals upheld against various constitutional challenges a Virginia county's regulation of fortune tellers. The regulations require fortune tellers to obtain a license and business permit, and to obtain a conditional use permit in order to locate their business in specifically zoned areas.  The court held that while the 1st Amendment's free speech clause gives some protection to fortune telling, here the county has merely enacted a generally applicable licensing and regulatory scheme regulating professional speech. The court also rejected the argument that the regulation infringes the free exercise of religion in violation of the 1st Amendment and RLUIPA.  It concluded that the beliefs of the "spiritual counselor" here challenging the regulation are "personal and philosophical choices consistent with a way of life," and are "not deep religious convictions shared by an organized group deserving of constitutional solicitude." Finally the court rejected plaintiff's equal protection challenge to the regulatory scheme. AP reports on the decision. (See prior related posting.)

Australia's Top Court Upholds Permit Requirement For Preaching On Streets

Yesterday the High Court of Australia, the country's supreme court, upheld a By-Law of the city of Adelaide that requires the obtaining of a permit in order to "preach, canvass, harangue, tout for business or conduct any survey or opinion poll" on any public or private street. The by-law was challenged by two street preachers.  In Attorney-General (SA) v Corporation of the City of Adelaide, (HCA, Feb. 27, 2013), Justice Hayne, writing one of the opinions upholding the By-Law, said:

... [T]he concern of those who must decide whether to grant or withhold consent is confined to the practical question of whether the grant of permission will likely create an unacceptable obstruction of the road in question.  Once that is understood, it is readily evident that the impugned provisions are reasonably appropriate and adapted to prevent obstruction of roads in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.... 

The Australian reporting on the decision gives additional background on events that led to the case:

In September 2010, the preachers - who are not affiliated with any church - were banned from holding their self-described "prayer meetings" in the mall. Retailers and shoppers had complained their preaching - done through amplifiers and megaphones - was "xenophobic, homophobic and sexist". They claimed the group "shout and scream slanderous" comments including "Muslims are dirty" and "you are all sinners who will be killed by God". Adelaide City Council claimed it had the power to exclude them from the Mall under a bylaw governing the proper use of roadways.

Milwaukee Mexican Festival Agrees To End Ticket Discount For Mass Attendees

Each year, the Wisconsin Hispanic Scholarship Foundation sponsors a festival, Mexican Fiesta, at Milwaukee's Sumerfest Grounds. As reported by WITI News, in past years the Fiesta offered a steeply discounted admission price to individuals who attended a Catholic Mass held on the festival grounds prior to the opening of the festival. Last year the Freedom From Religion Foundation objected, arguing that this amounts to preferential treatment in public accommodations on the basis of creed-- a violation of Wis. Stat. 106.52(3)(a)(2). It filed a complaint with the state Equal Rights Division. Now the festival has agreed to a settlement in the case including an agreement that "future Mexican Fiesta promotions will not be timed to coincide with times of entry or exit of the annual Mass."

Group Wins Settlement In Suit Alleging Discrimination Against Nonbelievers

The Center For Inquiry (CFI) announced yesterday that it has successfully settled a religious discrimination and breach of contract lawsuit it brought last year against a Michigan country club.  The Wyndgate Country Club of Rochester Hills, Michigan cancelled its contract for CFI to hold a dinner at the country club after the club learned that the speaker for the event was famous atheist Richard Dawkins.  The club justified the cancellation by saying "the owner does not wish to associate with certain individuals and philosophies." (See prior posting.) CFI says that this may be the first time federal and state laws barring religious discrimination in public accommodations have been successfully invoked by nonbelievers.

Indian Court Says Child Marriage Ban Overrides Muslim Personal Law

Times of India reports that yesterday the high court in the Indian state of Karnataka has ruled that the Prohibition of Child Marriage Act which sets the minimum age for marriage at 18 overrides provisions of the Muslim Personal Law.  The court dismissed a petition filed on behalf of a 17-year old Muslim girl who claimed that the Prohibition of Child Marriage Act is not applicable to Muslims because Muslim Personal Law permits marriage of a girl after she has attained puberty.

Hungary's Constitutional Court Invalidates Law On Status of Religious Communities

AP reports that on Tuesday, Hungary's Constitutional Court struck down the country's law on the Legal Status of Churches, Denominations and Religious Communities that was passed by the National Assembly (Hungary's parliament) at the end of December 2011 (see prior posting). The law recognized only 14 "traditional" religious faiths instead of the 300 that had previously been recognized.  Faiths not specified in the new law were permitted to apply to parliament for recognition if they had been operating in Hungary for at least 20 years. The law was designed to prevent groups that do not carry out religious activities from taking advantage of tax benefits and support granted to churches.

In this week's decision (full text in Hungarian), the Constitutional Court struck down the law because parliamentary decisions on recognition cannot be appealed, no written justification for refusing recognition is called for, and the process lends itself to political influence. However this invalidation may be short-lived. The government coalition led by Prime Minister Viktor Orban's Fidesz party is proposing amendments to Hungary's 2011 Basic Law, the country's constitution.  One of these would explicitly permit the National Assembly to decide which churches are to be officially recognized.  Also many of the groups denied recognition under the 2011 law have by now disappeared or converted themselves into associations.

6th Circuit: City Not Required To Add "Winter Solstice" Sign To Holiday Display

In Freedom From Religion Foundation, Inc. v. City of Warren, Michigan, (6th Cir., Feb. 25, 2013), the U.S. 6th Circuit Court of Appeals upheld a holiday display put up by the city of Warren, Michigan in its civic center. The court held that the display-- which included a lighted tree, reindeer, snowmen, a "Winter Welcome" sign and a nativity scene-- does not offend the Establishment Clause. It also held that the city was not required to include near the display a Winter Solstice sign composed by the Freedom From Religion Foundation. The sign included language calling religion "myth and superstition." The court said:

The short answer to the Foundation’s Winter Solstice request was that the Supreme Court has long permitted exhibits like the Warren holiday display, and the Establishment Clause does not convert these displays into a seasonal public forum, requiring governments to add all comers to the mix and creating a poison pill for even the most secular displays in the process.

The court also concluded that the mayor's letter rejecting FFRF's request, despite some questionable statements in it, did not turn the city's holiday display into an impermissible establishment of religion.

Finally, the court emphasized the the holiday display involved is "quintessentially government speech." Quoting the 9th Circuit, it added: "Simply because the government opens its mouth to speak does not give every outside individual or group a First Amendment right to play ventriloquist."  The Detroit Free Press reports on the decision.

3 Abuse Suits Filed Against Catholic Diocese and Order After Priest Commits Suicide

WKBN News reported yesterday on the third lawsuit growing out of sexual abuse of teenage boys by Franciscan Brother Stephen Baker at Catholic high schools in Warren, Ohio and Johnstown, Pennsylvania. Baker had been placed under supervision in a monastery in 2000 when complaints against him were first raised.  Last month, Baker committed suicide, leaving notes apologizing for his actions. Charges against Baker became widely known last month after a Boston attorney announced a settlement on behalf of 11 victims. The settlement was paid by the Third Order Regular Franciscans and the Youngstown Catholic Diocese. There followed three lawsuits filed in Pennsylvania state court against the Franciscans and the Johnstown-Altoona Catholic Diocese.  Baker allegedly used his position as athletic trainer to give teenage boys massages that included fondling their genitals and digitally penetrating them. Last week, the Youngstown diocese announced it had written 1200 adults who were students during the years that Baker taught in diocese schools, asking them to come forward with any other charges against Baker.

Ultra-Orthodox Jewish Schools Seeking Religious Accommodations In Complying With Federal School Nutrition Rules

The Forward reported yesterday on the unique problems of religious accommodation in complying with the federal Healthy, Hunger-Free Kids Act of 2010 faced by ultra-Orthodox Jewish schools. Under the Act and implementing regulations, federal assistance for a school's food program is available only if the school's menus meet specified nutritional guidelines.  Orthodox Jewish schools have encountered two issues, only one of which has been resolved so far. First, government standards limited the amount of  grain-based food that could be served.  Orthodox Jewish students needed a slice of bread in order to say the traditional Hamotzi-- the blessing over bread with which each meal is begun. That left no room for other grain-based foods. USDA officials agreed that schools could increase the amount of grain consumption, so long as it stayed within the calorie limit set out in USDA regulations.

The second issue involves the requirement to serve leafy dark-green vegetables as part of school meals. Ultra-Orthodox standards for kosher observance require special inspection of leafy vegetables to be sure that they are not insect infested. This would pose prohibitive costs on schools, and if they did not provide for inspection parents would advise their children not to eat the vegetables.  The schools are consulting with a nutritionist to attempt to find equally nutritious alternatives.

Scottish Cardinal Resigns Amid Charges Of Inappropriate Sexual Behavior

Vatican Radio this morning announced that Pope Benedict XVI has accepted the resignation of Scotland's Cardinal Kieth O'Brien. The resignation follows a report Saturday in The Observer that 3 priests and a former priest have charged O'Brien with "inappropriate behavior" involving inappropriate contacts, beginning in the 1980's. According to The Observer:

The four, from the diocese of St Andrews and Edinburgh, have complained to nuncio Antonio Mennini, the Vatican's ambassador to Britain, and demanded O'Brien's immediate resignation. A spokesman for the cardinal said that the claims were contested.

O'Brien, who is due to retire next month, has been an outspoken opponent of gay rights, condemning homosexuality as immoral, opposing gay adoption, and most recently arguing that same-sex marriages would be "harmful to the physical, mental and spiritual well-being of those involved". Last year he was named "bigot of the year" by the gay rights charity Stonewall.

According to the New York Times, a statement issued by the Diocese of Edinburgh on O'Brien's behalf yesterday said: "A number of allegations of inappropriate behavior have been made against the cardinal The cardinal has sought legal advice, and it would be inappropriate to comment at this time. There will be further statements in due course."

In Australia, Parliament Debates Scope of Religious Exemptions In Proposed Anti-Discrimination Law Revisions

The Australian reported last week on the controversy over the scope of exemptions for religious organizations in proposed Australian civil rights legislation.  Labor proposed a bill-- the Human Rights and Anti-Discrimination Bill 2012-- to consolidate Australia's five existing anti-discrimination laws. Under the proposal, exemptions for religious organizations were to be largely retained, except for government-funded providers of care for the elderly where there is concern about discrimination against same-sex couples seeking to enter care facilities.  However the Senate Legal and Constitutional Affairs Legislation Committee in a report released Feb 21 (full text) has recommended much narrower religious exemptions in the new law. (Full text of recommendations).  Opposition members of the Senate in turn, concerned about protecting Church schools, called on the Attorney General to retain current exemptions in the new law.

German Prosecutor Drops Circumcision Prosecution of Rabbi

Applying Germany's new law enacted in December to confirm the legality of religious circumcisions performed with parental consent by specially trained members of the religious community, a court in the German city of Hof has dismissed charges that had been filed last year against a rabbi.  According to the European Jewish Congress, the criminal charges were dropped last Thursday by the prosecutor who said that Rabbi David Goldberg has satisfied all the requirements of the new law.