Czech Constitutional Court Refuses Injunction Pending Its Decision On Church Restitution Law

Last year the Czech Republic passed a law on return of church property confiscated during the country's Communist regime. Under the law, the government will return land worth 75 billion crowns and will pay additional compensation of 59 billion crowns over the next 30 years. (See prior posting.)  Challenges to the law have been filed in the country's Constitutional Court, and the court has agreed to decide one of those cases challenging its constitutionality. Nevertheless, the government moved ahead on Feb. 22 to sign contracts with 16 churches and religious societies on their financial compensation.  The opposition Social Democratic Party filed with the Constitutional Court asking it to enjoin the government moving ahead with the contracts pending the court's decision on the validity of the entire law. Prague Daily Monitor reported yesterday that the Constitutional Court dismissed the injunctive action ruling that it lacks jurisdiction since it may only decide constitutional challenges.

Attorneys For Abuse Victims Speculate That Benedict May Be More Vulnerable Legally After His Resignation

AP reports yesterday that attorneys for clergy sex abuse victims are exploring whether Pope Benedict XVI's resignation makes him more vulnerable to successful legal action challenging his failure to act more aggressively against priests involved. They speculate that the resignation may make prosecutors more likely to act, particularly as to his role before he became Pope when he was head the Congregation for the Doctrine of the Faith that was charged with dealing with the abuse claims. However a lawyer for the Vatican says that Benedict retains legal immunity as a former head of state. The Center for Constitutional Rights in New York is urging the International Criminal Court to investigate the Vatican's response to abuse as crimes against humanity.

Tithing Not A Necessary Expense In Computing Installment Payments To IRS

In Thompson v. Commissioner, (USTC, March 4, 2013), the U.S. Tax Court faced the question of the extent to which a taxpayer entering an installment agreement for the payment of back taxes should be allowed to continue to tithe to the Mormon Church.  George Thompson, who was a volunteer shift coordinator and a stake scouting coordinator for the Church, sought a partial payment installment agreement with the IRS for the over $880,000 in taxes and penalties he owed. The IRS offered an agreement under which he would pay $8389 per month, computed by deducting from Thompson's monthly income those items the IRS classified as "necessary expenses." Thompson claimed that his $2110 per month tithing expenses to his Church should also be a necessary expense.

The Internal Revenue Manual provides that "necessary expenses" include those that are a condition of employment. Thompson would be required to resign from his positions with the Church if he stopped tithing. The Tax Court concluded, however, that while required tithing by a minister who receives compensation would be a necessary expense, this does not apply to expenses connected with uncompensated activities. The Internal Revenue Manual also classifies payments for a taxpayer's health and welfare as necessary ones. However the court said it was not an abuse of discretion to exclude payments relating to "spiritual health." The Tax Court also rejected Thompson's arguments under the free exercise clause and RFRA. TaxProf Blog reports on the decision.

Malaysians Can Now Deduct Contributions To Places of Worship

Today's New Straits Times reports that this year for the first time Malaysians will be able to deduct from their income tax returns contributions made last year to approved places of worship. Under The Income Tax (Amendment) Act 2012, these type of donations were further encouraged by provisions allowing religious organizations to create a place-of-worship management fund to which tax deductible contributions can be made.

Philippine Ombudsman Dismisses Prosecution of Controversial Artist and Cultural Center Trustees

The Philippine Daily Inquirer yesterday reported that the Ombudsman of the Philippines has dismissed a criminal case that had been filed against controversial artist Mideo Cruz and ten members of the Board of Trustees of the Cultural Center of the Philippines. The prosecution had charged defendants with violating Article 201 of the Revised Penal Code, the law which penalizes offenses against decency and good customs, because of the display of Cruz's collage titled Poleteismo as part of the 2011 Kulo art exhibit organized by the Cultural Center. Some Catholics had objected to Cruz’s mixing of religious images with phallic symbols, a condom and Mickey mouse ears. The Ombudsman also held that that there is no substantial evidence to hold Cultural Center officials administratively liable either.

Pastor Who Aided International Parental Kidnapping Sentenced To Prison, But Stayed Pending Appeal

Christian News Network reports that a federal court judge in Burlington, Vermont yesterday sentenced Mennonite pastor Ken Miller of Stuarts Draft, Virginia to 27 months in prison plus one year of supervised probation after Miller was convicted last year of abetting an international parental kidnapping. (See prior posting). Miller's conviction grew out of the assistance he gave to Lisa Miller (no relation to the pastor), who-- before declaring herself a born-again Christian-- had been in a Vermont civil union with another woman. She now sought to avoid the court-ordered child visitation rights awarded to her former partner by fleeing with her daughter. The pastor helped her ultimately get to Nicaragua and obtain shelter from missionaries there. Edge quotes from a letter that Pastor Miller sent to the sentencing judge ahead of the sentencing decision in which Miller calls the decree awarding visitation rights "inhumane" and said the court is judging his faith, conscience and deeply held moral beliefs. Judge Sessions, after imposing the prison sentence, ruled that imposition of the sentence would be stayed pending an appeal on whether the case should have been tried in Virginia instead of Vermont.

Secularist Group Issues Report Critical of Religious Fundamentalism In U.S. Military

The Center for Inquiry last week released a 36-page position paper titled For God and Country: Religious Fundamentalism In the U.S. Military. The report was authored by retired Air Force Lieutenant Colonel James Parco, a former Air Force Academy faculty member and a leading critic of religious proselytizing at the Academy. The report summarizes its findings as follows:

Tension over what constitutes proper religious expression within the United States military has significantly intensified over the past decade. This paper examines and analyzes recent reports and several prominent cases, revealing how religiously motivated behavior has increased over the years and remains either tacitly or overtly endorsed by senior military leaders. In light of increasing religious fundamentalism within the ranks, coupled with a lack of social and political will to affect change, the cultural reticence to hold commanders accountable for inappropriate behavior remains an obstacle. The paper concludes with actionable recommendations.

[Thanks to Scott Mange for the lead.] 

Court Denies Injunction In Businesses' Challenge To Contraceptive Coverage Mandate

In Gilardi v. Sebelius. (D DC, March 3, 2013), the D.C. federal district court refused to issue a preliminary injunction to prevent enforcement of the Affordable Care Act contraceptive coverage mandate in a suit by two related for-profit Subchapter S corporations and their Catholic owners.  Plaintiffs object on religious grounds to providing coverage for contraception, sterilization and contraceptive methods that act as abotifacients. The court concluded that plaintiffs failed to show a likelihood of success on the merits of their claim under the Religious Freedom Restoration Act.

The court refused to impute the owners' religious views onto their corporations, holding that it must evaluate the claims of the owners and the businesses separately.  Declining to decide whether a for-profit business could ever exercise religion, the court held that in this case the charitable activities and other actions pointed to by plaintiffs do not establish that these companies exercise religion, so the contraceptive coverage mandate cannot impose a substantial burden on them.  Moving to claims by the individual owners, the court held that a substantial burden is not shown merely by plaintiffs claiming that it is such. Here the owners have not shown a substantial burden because they are not required to personally support, endorse or engage in pro-abortion or pro-contraception activity; only the corporations are.

US and Russian Branches of Chabad At Odds Over Putin's Suggested Lawsuit Compromise

As previously reported, U.S. courts have ordered the Russian government to return two expropriated collections of valuable Jewish religious books and manuscripts (the Schneerson Library and the Archive) to the U.S. Chabad organization. Recently Russian President Vladimir Putin has suggested a possible compromise-- keeping the portion of the collection that was nationalized by the Bolsheviks in Moscow's Jewish Museum and Tolerance Center, a museum controlled by the Russian branch of Chabad.  According to yesterday's Forward, the proposal has placed the Russian and U.S. branches of Chabad at odds. Nathan Lewin, lawyer for the Brooklyn-based branch of Chabad has rejected Putin's suggestion.  However, Boruch Gorin, a spokesman for the Russian Chabad's Federation of Jewish Communities, said that Lewin's rejection of the proposed compromise could be "dangerous [for] the future of the Jewish community in Russia." Gorin says that the U.S.-based Chabad should focus on seeking return only of the Archive, which was seized by the Nazis, and only later by the Red Army. The Library, on the other hand, was nationalized by the Bolshevik government in 1917, and its return would create a more difficult precedent for Russia because of the large amount of property nationalized by the Bolsheviks.

Recent Articles of Interest

From SSRN:

• Vito Breda, Sharia Law in Catholic Italy: A Non-Agnostic Model of Accommodation, (February 18, 2013).
• Megan Pearson, Proportionality: A Way Forward for Resolving Religious Claims?, (Nick Spencer (ed.) Religion and Law (London: Theos Think Tank, 2012).)
• Andrew M. Koppelman, And I Don't Care What It Is: Religious Neutrality in American Law, (Pepperdine Law Review, Vol. 39, 2013).
• Paul Horwitz, Defending (Religious) Institutionalism, (Virginia Law Review, Forthcoming).
• John Witte and Joel A. Nichols, Who Governs the Family? Marriage as a New Test Case of Overlapping Jurisdictions, (Faulkner Law Review (Forthcoming 2013)).
• Elizabeth L. Hillman, Outing the Costs of Civil Deference to the Military, (60 Journal of Homosexuality 312, 2013).

From SmartCILP:

• Symposium: The Competing Claims of Law and Religion. Introduction by Robert F. Cochran, Jr. and Michael A. Helfand; articles by James Davison Hunter, Andrew Koppelman, Michael Stokes Paulsen, Abdullahi A. An-Na'im, Mark Strasser, Susan J. Stabile, Barak D. Richman, Sherman J. Clark and John Lawrence Hill; responses by Zachary R. Calo, Patrick McKinley Brennan, Chad Flanders, Richard W. Garnett, Eugene Volokh and Mohammad H. Fadel. 39 Pepperdine Law Review 1051-1425 (2013).
  
• The Sixth Annual John F. Scarpa Conference on Law, Politics, and Culture. A Celebration of the Work of John Finnis. Introduction by Patrick McKinley Brennan; articles by George C. Christie, Michelle Madden Dempsey, Frederick G. Lawrence, Rev. Martin Rhonheimer, Candace Vogler and Michael J. White; responses by Patrick McKinley Brennan, Matthew Lister, Anna Bonta Moreland, Michael P. Moreland and Rev. Richard A. Munkelt; keynote response by John Finnis. 57 Villanova Law Review 809-955 (2012).

Legal Documents To Assist In Following the Upcoming Papal Election

With the proceedings leading to the election of a new Pope scheduled to begin tomorrow, here are formal legal documents and other useful resources for following the process.

The formal rules for electing a pontiff are found in the Apostolic Constitution, On the Vacancy of the Apostolic See and the Election of the Roman Pontiff, promulgated by Pope John Paul II in 1996, as modified by the Apostolic Letter, On Certain Modifications to the Norms Governing the Election of the Roman Pontiff, promulgated by Pope Benedict XVI on Feb. 22, 2013. (An intermediate amendment to the rules promulgated by Pope Benedict XVI in 2007 (full text in French) has been superseded by his 2013 amendments.)

On March 1, Angelo Cardinal Sodano, Dean of the College of Cardinals, issued a formal letter (full text) notifying the Cardinals of the vacancy in the Apostolic See and convoking "the first of the General Congregations of the College of Cardinals, to be held Monday, March 4 at 9:30 am in Paul VI Hall, in the room of the Synod of Bishops."

The OUP Blog has posted a useful guide titled An Oxford Companion to the 2013 Papal Elections.

Recent Prisoner Free Exercise Cases

In Williams v. Fisher, 2013 U.S. Dist. LEXIS 23275 (ND NY, Feb. 20. 2013), a New York federal district court adopted a magistrate’s recommendation (2013 U.S. Dist. LEXIS 24560, Jan. 29, 2013) and refused to dismiss a complaint by a Nazarite Jewish inmate that his religious dietary needs were not being met.

In Elder v. Scolapia, (WV Sup. Ct., Feb. 22, 2013), the West Virginia Supreme Court of Appeals rejected claims by petitioner who was sentenced to home incarceration after pleading guilty to sexual abuse and assault charges that his rights were infringed when the trial court denied his request to attend religious services at a specific church.

In Smith v. Owens, 2013 U.S. Dist. LEXIS 22722 (MD GA, Feb. 20, 2013), a Georgia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 25428, Jan. 15, 2013) and permitted a Muslim inmate to proceed with his claim for injunctive relief under RLUIPA.  Plaintiff claims that the Georgia prison grooming policy violates his rights by not permitting him to grow a beard for religious purposes. Other claims by plaintiff were dismissed.

In Rogers v. Giurbino, 2013 U.S. Dist. LEXIS 26293 (SD CA, Feb. 26, 2013), a California federal district court dismissed an inmate's claim that suspension of Protestant group prayer services, fellowship and ministry classes during the prison lock downs violated his rights under RLUIPA.

In Toland v. Williams, 2013 U.S. Dist. LEXIS 26198 (SD GA, Feb. 26, 2013), a Georgia federal magistrate judge permitted an inmate to proceed with his claim that he did not receive the restricted vegan diet demanded by his religious beliefs.

In Mills v. McGarry, 2013 U.S. Dist. LEXIS 26953 (SD WV, Feb. 26, 2013), a West Virginia federal district court, rejecting a magistrate's recommendation (2012 U.S. Dist. LEXIS 186457, Dec. 11, 2012), permitted a Hare Krishna inmate to proceed with his motion for an emergency preliminary injunction under RLUIPA challenging a policy that required him to waive his medical diet in order to receive a diet that comported with his religious beliefs. Agreeing with the magistrate's other recommendations, the court dismissed plaintiff's 1st and 8th amendment and state constitutional claims, saying in part that: "giving a prisoner daily sustenance whose quality comports with the overwhelming majority of society's standards, but of a nature that does not fully comport with a prisoner's religious beliefs" does not amount to cruel and unusual punishment.

In Rutherford v. Hines, 2013 U.S. Dist. LEXIS 24255 (D SC, Feb. 22, 2013), a South Carolina federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 26312, Jan. 31, 2013) and dismissed an inmate's free exercise claims regarding not receiving a pork-free diet while a pre-trial detainee.

In Duwenhoegger v. King, 2013 U.S. Dist. LEXIS 23498 (D MN, Feb. 21, 2013), a Minnesota federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 25255, Jan. 28, 2013), and dismissed an inmate's complaint that he was not permitted to send or receive mail using the honorific title "Pastor," and was denied participation in a correspondence Bible studies course while he was in segregation. The court also rejected a large number of complaints about other aspects of plaintiff's confinement.

In Bramlett v. Ligget, 2013 U.S. Dist. LEXIS 27374 (SD IL, Feb. 28, 2013), an Illinois federal district court permitted an inmate to proceed with claims that the correctional center mail room supervisor interfered with his receiving gospel tracts and a religious enrollment form that had been sent to him.

In Cooke v. United States Bureau of Prisons, 2013 U.S. Dist. LEXIS 26947 (D NC, Feb. 27, 2013), a North Carolina federal district court allowed inmates, who were confined to wheel chairs, to proceed with complaints under RFRA and the 1st Amendment that unlike detainees without disabilities they cannot access the religious library or outdoor pagan worship area at their correctional facility.

In Hughes v. Heimgartner, 2013 U.S. Dist. LEXIS 26727 (D KA, Feb. 27, 2013), a Kansas federal district court, while dismissing a number of claims, permitted a Muslim inmate to move ahead with claims for declaratory and injunctive relief under RLUIPA and the 1st Amendment in a suit alleging that while in segregation he had been denied the Halal meal for Eid  ul Fitr that was available to other Muslim inmates.

In Maldonado v. Yates, 2013 U.S. Dist. LEXIS 27163 (ED CA, Feb. 26, 2013), a California federal magistrate judge recommended dismissal of an inmate's complaint that under prison rules he is not allowed to attend religious services of more than one religious group, and that he was denied a kosher diet that he says is better for his health and mental disability. The court said in part: "Plaintiff appears to seek the option to sample whatever religion suits his interest, which is not the purpose of the rights protected by the Free Exercise Clause."

Constitutional Issue Avoided In Preacher's Guilty Plea For Possessing Poisonous Snakes

In a Tennessee trial court last Monday, James Coots, pastor of the Full Gospel Tabernacle in Jesus Name in Middlesboro, Kentucky, pleaded guilty to illegally possessing poisonous snakes. According to UPI, Coots, whose church engages in the practice of snake handling, legally acquired the snakes in Alabama and was driving through Tennessee taking the snakes to Kentucky where they are also legal to possess. Tennessee police discovered the snakes when they pulled Coots over for having too darkly tinted windows in his car.  Coots lawyer says he believes seizing the snakes was unconstitutional. However, apparently in a plea deal, Coots received only one-year probation in exchange for his guilty plea.

Clergy Have Mixed Views of Arkansas Lifting of Gun Ban In Churches

As previously reported, last month Arkansas adopted the Church Protection Act that removes the absolute ban on carrying handguns in houses of worship and leaves the decision on who may carry a concealed weapon into a church up to each congregation. The Arkansas Times reports this week that the change has been greeted with mixed feelings.

Faith Assembly of God minister Nic Horton says that the new law will allow smaller, rural churches to provide security by arming a few specific trusted parishioners. He says that allowing churches to make that kind of decision is "the real meaning of the separation of church and state."  However Presbyterian minister Marie O'Connell has a different perspective. She complains:

I have to take time out from pastoring and teaching and preaching to work on an issue that was a non-issue before the government decided they wanted it to be an issue. It's a perfect example of society imposing on religion, and religion having to consider: What does this mean? What does this mean for what I believe?"

Court Denies Preliminary Injunction To Non-Liturgical Protestant Navy Chaplains

In In re: Navy Chaplaincy, (D DC, Feb. 28, 2013), the D.C. federal district court refused to issue a preliminary injunction in a suit claiming that the U.S. Navy's chaplain selection process results in denominational favoritism that prefers Catholic and liturgical Protestant chaplains, to the disadvantage of non-liturgical Protestant chaplains. The suit brought by former chaplains, chaplain endorsing agencies and a group of churches claimed, primarily on the basis of statistical evidence, that the Navy discriminates against non-liturgical chaplains in violation of the Establishment Clause and the equal protection component of the 5th Amendment. Plaintiffs point to the unique voting procedures used by chaplains on selection boards. The court held that plaintiffs must prove discriminatory intent to show a constitutional violation, and have failed to do so. The mere disparate impact shown here was not enough to require an inference of purposeful intent. The court's decision came after the case was remanded to it from the D.D. Circuit Court of Appeals. (See prior posting.)

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.