Scottish Charity Regulator Holds Catholic Adoption Agency Does Not Qualify As A Charity

In a Report (full text) issued March 5, the Office of the Scottish Charity Regulator confirmed its Jan. 2013 decision that St. Margaret's Children and Family Care Society, a Catholic adoption agency based in Glasgow, fails to qualify as a "charity" under the Charities and Trustee Investment (Scotland) Act 2005.  The conclusion was based on the finding that St. Margaret's violates the Equality Act 2010 by discriminating against non-Catholics, and against same-sex couples, in placing children for adoption.(OSCR press release.) As summarized by the Report:

OSCR found that the charity does not provide public benefit because the way it provides benefit involves unlawful discrimination, which causes detriment to the public and to particular groups of people, the effect of which outweighs the other positive effects of the charity’s work. OSCR also found that access to the benefits the charity provides is unduly restricted. OSCR therefore found that the charity fails the charity test and confirmed the decision to direct the charity to meet the charity test.

The National Secular Society, which filed the original complaint against St. Margaret's, also issued a press release on OSCR's report.

Mississippi Legislature Adopts Student Religious Liberties Act

The Mississippi State Legislature has passed overwhelmingly and sent to Gov. Phil Bryant for his signature S.B. 2633, the Mississippi Student Religious Liberties Act of 2013.  The state Senate passed the bill by a vote of 50- 1 last month, and the House yesterday passed it by a vote of 109-6, with 5 not voting, absent or voting present. The bill prohibits public school from discriminating against students or parents on the basis of religious viewpoint or religious expression, including the expression of religious beliefs in homework or classroom assignments. It provides that students may pray, engage in religious activities and religious expression, and organize religious clubs and gatherings before, during and after the school day to the same extent that students may engage in nonreligious activities. It calls for schools to adopt a policy that creates a limited public forum at all events at which students speak publicly, and sets out a Model Policy that meets the statutory requirements. The Model Policy includes provisions that allow students, selected under neutral criteria, to introduce football games and speak at graduation ceremonies without discrimination against religious views they espouse. AP reports on the bill's passage.

UPDATE: AP reports that Mississippi Gov. Phil Bryant signed the bill on March 14.

Developments In Small Business Challenges To the Contraceptive Coverage Mandate

In Sioux Chief Mfg. Co., Inc. v. Sebelius, (WD MO, Feb. 28, 2013), a Missouri federal district court, with the consent of both parties, enjoined enforcement of the Affordable Care Act contraceptive coverage mandate against a small plumbing products company and its Catholic owners until the 8th Circuit rules on one of two cases before it raising similar issues. The court also stayed all proceedings in the case until the 8th Circuit rules. (See prior related posting.) LifeNews reports on the court's action.

Meanwhile, in Colorado another small business, along with its Evangelical Christian owners, filed a federal lawsuit challenging the contraceptive coverage mandate on 1st, 5th, 14th Amendment, RFRA and Administrative Procedure Act grounds.  The complaint (full text) in Armstrong v. Sebelius, (D CO, filed 3/5/2013), alleges that the shareholders of the Cherry Creek Mortgage Co. only realized last December that the company's health insurance policy covers contraceptive drugs that operate as abotrtifacients. Because there was not time to seek judicial relief before Jan. 1, the company (at least temporarily) kept the same coverage to comply with the mandate. An ADF press release reports on the filing of the lawsuit.

On a separate front, three members of the House of Representatives announced that they, with 50 co-sponsors, have introduced the Health Care Conscience Rights Act (full text). The proposed bill would provide that no individual, issuer or sponsor can be required to purchase or furnish health insurance coverage that includes coverage of an abortion or other service to which the individual, issuer or sponsor has a moral or religious objection. The bill would also strengthen conscience rights for health care providers who have objections to abortions. According to CNS, one of the bill's sponsors said it is possible that the bill could be attached to the House version of the continuing resolution that would keep the federal government operating after March 27.

Cert. Petition Filed Challenging Enjoining of Anti-Abortion Church Picketers

On Monday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Scott v. St. John's Church in the Wilderness. In the case, a Colorado appeals court (full text of opinion) enjoined anti-abortion protesters from engaging in certain kinds of protest activity aimed at a church they believed had gone astray.  The injunction applied during periods from shortly before to shortly after church services. The primary portion of the injunction challenged on appeal prohibits defendants from:

displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age attending worship services and/or worship-related events at plaintiff church.

A Thomas More Society press release discusses further the certiorari petition. Eugene Volokh, one of the drafters of the cert. petition, discusses it further at Volokh Conspiracy.

 

Israel May Have Coalition Government That Dramatically Changes Current Religion-State Arrangements

A New York Jewish Week article today speculates that dramatic changes in the relationship of religion and government could be in the offing in Israel as Benjamin Netanyahu moves to form a coalition government that may exclude the haredi (strictly Orthodox) Shas and United Torah Judaism parties. In the coalition negotiations, Yair Lapid of Yesh Atid and Naftali Bennett of the Jewish Home Party, which together hold 31 seats in the Knesset, have pledged they will not join a government with the haredi parties.

Among the changes that could result are limiting or ending draft exemptions for yeshiva students, easier conversion to Judaism of immigrants from the former Soviet Union who have been unable to prove that they are Jewish under Jewish religious law, an end to the Orthodox monopoly over Jewish marriage and divorce, and proportionate government funding of the Reform and Masorti (Conservative) branches of Judaism along with Orthodox.

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.)