9th Circuit: Religious Healing Center Must Produce Subpoenaed Documents

Optimum Health Institute (OHI) is a healing ministry of the Free Sacred Trinity Church that operates two holistic healing centers. In Cason v. Federated Life Insurance Co., (9th Cir., March 6, 2013), the U.S. 9th Circuit Court of Appeals upheld a district court's civil contempt order against OHI after it refused to produce documents sought by Federated Life Insurance Company relating to attendance at OHI by Cheryl Cason who was suing the insurance company. The court rejected OHI's argument that forcing it to produce the documents would violate its First Amendment rights. OHI's ability to practice its religion would, at most, have been only incidentally affected, and no associational privacy was infringed. Cason already admitted she attended OHI, and OHI was permitted to redact the names of others from the documents it produced.

California Trial Court Issues Tentative Ruling Against Episcopal Church In Property Dispute

A California state trial court has issued a tentative ruling (full text), subject to change if either party requests oral argument, in Diocese of San Joaquin v. Schofield, (Fresno Super. Ct., March 6, 2013). The case involves an attempt by The Episcopal Church to establish its title to property of the break-away San Joaquin Diocese.  As previously reported, a state appeals court held that the trial court should apply neutral principles of law to determine the validity of property transfers allegedly made by break-away Bishop John-David Schofield before he was replaced. The Episcopal Church moved for summary judgment, arguing that because all the property transfers occurred after Schofield was removed as Bishop, the transfers were invalid. The court, in its tentative ruling, however refused to grant the motion, saying:

It is not enough for plaintiffs to merely state that Schofield was not the Episcopal Bishop of the Diocese of San Joaquin when he effected the transfers at issue. Plaintiffs were also required to show that, under neutral principals of law, Schofield lacked the authority to effect such transfers.... An individual incorporated as a corporation sole "may at any time amend the articles of incorporation of the corporation...."   (Corp. Code, § 10010.)... Plaintiffs have utterly failed to present either facts or evidence from which this court could conclude that the December 8, 2007 amendments enacted to leave the Episcopal Church were invalid.... In short, there is nothing to for this court to review under neutral principals of law.

Anglican Curmudgeon blog comments on the tentative ruling.

South Carolina Episcopal Bishop Sues Break-Away Parishes Over Right To Be Identified As Protestant Episcopal Church

As reported by AP,  yesterday Episcopal Bishop Charles von Rosenberg who heads the minority of congregations in South Carolina that remain loyal to The Episcopal Church filed a federal lawsuit against Bishop Mark Lawrence who heads the larger portion of the congregations that in 2012 broke away from the national church. The complaint (full text) in von Rosenberg v. Lawrence, (D SC, filed 3/6/2013), asserts trademark infringement and false advertising claims under the federal Lanham Act and seeks to enjoin the break-away congregations from using the name and symbols of the Protestant Episcopal Church in the Diocese of South Carolina. However, plaintiffs see the suit in broader terms. von Rosenberg said: "The intent of this suit is straightforward. We are asking the court to determine who is authorized to serve as bishop of the Episcopal Diocese of South Carolina."

The suit counters a state court lawsuit initially filed in January by the Diocese of South Carolina seeking to claim the right to diocese property and identity  (see prior posting). In that case the state court issued a temporary injunction to block the faction remaining with TEC from using the name "The Protestant Episcopal Church in the Diocese of South Carolina." (Background). Since then, the break-away group has used the name "Diocese of South Carolina." while the TEC congregations are using the name "The Episcopal Church in South Carolina." The Anglican Curmdgeon blog comments on the new lawsuit from the perspective of the break-away congregations.

Consent Decree Vindicates ACLU's Challenge of Library's Web Filtering Categories

In a consent order in Hunter v. Board of Trustees, Salem Public Library, (ED MO March 5, 2013), a Missouri federal district court ordered the Salem, Missouri public library to refrain from reactivating on its public computers filters that blocked websites relating to the categories "occult" or "criminal skills." (ACLU press release.) The suit was filed by the ACLU on behalf of a Salem resident who was blocked from accessing websites discussing Native American and Wiccan ideas about death or death rituals. The library had already changed its policy before this lawsuit was filed. (See prior related posting.) The St. Louis Post-Dispatch reports on the order.

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.