Media Speculates On Leading Candidates For New Pope

With the Conclave to elect a new Pope scheduled to begin in the Vatican tomorrow, AP reports on the leading contenders as of yesterday. It says the Vatican Curia is backing Brazilian Odilo Scherer who would be expected to appoint an Italian insider as Secretary of State, the number 2 position that runs day-to-day affairs. American cardinals are leading a push for a reform-minded pope and are backing Milan archbishop Angelo Scola. Three American Cardinals are also being mentioned as candidates-- Cardinal Sean O'Malley of Boston,  Cardinal Timothy Dolan of New York, and Cardinal Donald Wuerl of Washington,  Italy has the largest group of Cardinal electors and Italians had been elected to the Papacy for 455 years prior to 1978 when splits in the Italian delegation ended the tradition with the election of Pope John Paul II.

Recent Articles of Interest

From SSRN:

• Mohammad Abdullah , Analysing the Role of Shariah Supervisory Boards in Islamic Financial Institutions, (February 1, 2012).
• Joanie Sompayrac and Victoria Rose Burge, Does the Defense of Marriage Act Prevent the Internal Revenue Service from Treating All 'Married' Couples Equally?, (Journal of Accounting, Ethics & Public Policy, Vol. 14, No. 1, 2013).
• Mohammad Fadel, Judicial Institutions, the Legitimacy of Islamic State Law and Democratic Transition in Egypt: Can a Shift toward Common Law Model of Adjudication Improve the Prospects of a Successful Democratic Transition?, (Forthcoming in International Journal of Constitutional Law).
• Mark Rienzi, God and the Profits: Is There Religious Liberty for Money-Makers?, (March 7, 2013).
• Stephen M. Bainbridge, Using Reverse Veil Piercing to Vindicate the Free Exercise Rights of Incorporated Employers, (The Green Bag, Vol. 16, No. 3, Spring 2013).
• Nan D. Hunter and Suzanne B. Goldberg, Brief of Amici Curiae Professors Nan D. Hunter, et al., Addressing the Merits in Support of Respondents, (Georgetown Public Law Research Paper No. 13-019., Feb. 27, 2013).

From SmartCILP and elsewhere:

• Kurt M. Denk, Jurisprudence That Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse, 88 Notre Dame Law Review 323-393 (2012).
• Jay Alan Sekulow and Erik M. Zimmerman. Reflections on Jews for Jesus: Twenty-five Years Later, 25 Regent University Law Review 1-23 (2012-2013).
• Michael J. Klarman, How Same-Sex Marriage Came to Be, Harvard Magazine, 30-35, March-April 2013.
• The March-April 2013 issue of Moment Magazine is devoted to Religious Freedom.

Pakistani Muslims Burn Christian Homes After Christian Is Charged With Blasphemy

CNN reports today:

Outraged Pakistani Christians took to the streets of Lahore on Sunday, protesting a rash of violence against their community over the weekend.  Demonstrators denounced the burning of more than 100 homes of Christians on Saturday -- a spree spurred by allegations that a Christian man made remarks against the Muslim prophet Mohammed.

The blasphemy charges were filed against Sawan Masih who denies the charges and says they were filed after he and two other men got into an argument while drinking.  Pakistan's Human Rights Commission said:

The attack is yet another shameful incident against a vulnerable community and further confirmation of the slide toward extremism in society on the one hand and, on the other hand, the apathy and inaction that has become the norm among the police. 

UPDATE: Pakistan's President Asif Zardari on Sunday instructed the Prime Minister to compensate each Christian family affected in the amount of 500,000 Rs (approximately $5000 US). He also pledged protection of non-Muslim citizens to the same extent as Muslims and said those involved in the vandalism should be brought to justice. He asked religious leaders for suggestions on how to prevent misuse of the blasphemy law. (Pakistan Today 3/11).

Puerto Rican Police Sued By Atheist Officer Over Workplace Prayer

The ACLU of Puerto Rico announced Friday that it has filed a lawsuit in federal court on behalf of a police officer who is an atheist who was harassed and demoted to handling menial tasks after he refused to participate in Christian prayer made a part of a workplace meeting by a police commander. Departmental meetings continue to include Christian prayers. The complaint (full text) in Marrero-Mendez v.Pesquera, (D PR, filed 3/8/2013), charges that the practice violates the Establishment Clause as well as various Puerto Rican statutory and constitutional provisions. According to an AP report: "It is one of the first cases of its kind filed in the deeply religious U.S. territory, where 85 percent of the people consider themselves Roman Catholic and a large minority is Protestant."

Recent Prisoner Free Exercise Cases

In White v. Lee, 2013 U.S. App. LEXIS 4470 (9th Cir., March 4, 2013), the 9th Circuit affirmed the dismissal of an inmate's RLUIPA and free exercise claims finding that plaintiff's religious beliefs in opposition to blood transfusions did not impact his prison physicians' chosen course of treatment for his knee pain.

In Muhammad v. Davis, 2013 U.S. Dist. LEXIS 27557 (MD FL, Feb. 28, 2013), a Florida federal district court permitted a Muslim inmate to move ahead with his claim for injunctive relief in a suit claiming that his rights under RLUIPA were violated when prison authorities refused to recognize his need to begin the Ramadan fast 90 minutes before sunrise (at Fajr).

In Buckley v. Scribner, 2013 U.S. Dist. LEXIS 27833 (ED CA, Feb 28, 2013), a California federal magistrate judge recommended allowing a Jewish inmate to move ahead with his claims that his kippahs and tallit were confiscated and destroyed and that he was denied chapel access on one day.

In Pittman-Bey v. Clay, 2013 U.S. Dist. LEXIS 29668 (SD TX, March 4, 2013), a Texas federal district court held that prison officials are entitled to qualified immunity in a damage action against them alleging free exercise violations because neither binding precedent nor a consensus of authority made it clear that an inmate had a free exercise right to receive the Ramadan meals when he refused to attend weekly Jumu'ah services based on his religious beliefs.

In Stanley v. Wenerowicz, 2013 U.S. Dist. LEXIS 30005 (MD PA, March 1, 2013), a Pennsylvania federal district court permitted a Muslim to proceed against certain defendants on his claim that  he was improperly transferred to a Virginia prison where he was required to shave in violation of his religious beliefs, even though he had been granted an exemption from frooming requirements by Pennsylvania correctional authorities.

In Jamison v. Bamberg, 2013 U.S. Dist. LEXIS 29347 (D SC, March 5, 2013), a South Carolina federal district court adopted a magistte's recommendation (2012 U.S. Dist. LEXIS 186577, Nov. 28, 2012) and dismissed an inmate's complaint that he was not provided a kosher diet and subsequently a House of Yahweh diet.

In McCoy v. Henderson, 2013 U.S. Dist. LEXIS 30881 (D KA, March 6, 2013), a Kansas federal district court dismissed an inmate's complaint that he was improperly denied kosher meals.

In Villanueva v. Rivera, 2013 U.S. Dist. LEXIS 29479 (D SC, March 4, 2013), a South Carolina federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 29484, Jan. 7, 2013) and dismissed an inmate's complaint that the prison system refused to recognize Kingism as a religion.

Free Exercise and Establishment Clause Challenges To NC Marriage Laws Dismissed On Procedural Grounds

In Thigpen v. Cooper, (NC Ct. App., March 5, 2013), a North Carolina state appellate court, without reaching the merits of the claim, dismissed a suit seeking a declaratory judgment that three of the state's marriage statutes are unconstitutional.  Plaintiff claimed that the statutes violate the Establishment Clause by making clergy agents of the state to perform a marriage ceremony; that  they violate free exercise protections because the state requires individuals entering into marriage to participate in a state-prescribed ceremony; and that it is unconstitutional for the state to prohibit members of the clergy from solemnizing the marriage of same-sex couples. (See prior posting.)  The only defendants named were the state of North Carolina and the state Attorney General in his official capacity. The court held that a state is not a "person" for purposes of 42 USC Sec. 1983, the federal statute giving plaintiffs a cause of action to challenge the state laws. It held further that the suit is not properly brought against the attorney general, because he plays no role in enforcing the marriage statutes being challenged.

Clergy-Communicant Privilege Does Not Extend To Lay Religious Counselors

In United States v. Dillard, (D KA, March 7, 2013), a Kansas federal magistrate judge [corrected] held that the clergy-communicant privilege extends only to members of the clergy and not to a lay counselor providing religious counseling or other support through a religious program. Defendant, Angel Dillard, visited inmates at the Sedgwick County jail through a non-profit religious ministries program.  In the case, the federal government is seeking information on Dillard's communications through the program with Scott Roeder, who is serving a life sentence for of murdering abortion provider Dr. George Tiller (see prior posting), and with another inmate who says that Dillard solicited his participation in unlawful activities against abortion providers. In rejecting Dillard's claim of privilege, the court said:

Extending the privilege to “counselors” and other lay members would require the Court to undertake the constitutionally-hazardous task of analyzing whether counseling was or was not “religious” – and possibly even balancing whether the religious component of a communication is substantial enough to require protection.

Latest Contraceptive Coverage Mandate Decision Includes Several New Twists

A Pennsylvania federal district court on Wednesday handed down a decision in a case challenging the contraceptive coverage mandate promulgated under the Affordable Care Act.  Unlike other cases decided so far, this one combined a challenge by a non-profit college and two for-profit businesses that do not appear to have any relation to the college.  The 69-page opinion reached different results as to the different challengers.  In Geneva College v. Sebelius, (WD PA, March 6, 2013), the court held that while the non-profit, Reformed Presbyterian Church-sponsored Geneva college had standing to challenge the mandate, its lawsuit should be dismissed for lack of ripeness. Under Feb. 13 proposed rules, Geneva may be exempted from compliance.

The court, however, handed down a more complex ruling as to the challenges by the for-profit businesses, refusing to dismiss their RFRA, free exercise and Administrative Procedure Act claims. It held that one of the companies, a closely-held corporation in the lumber business, has standing to assert its Catholic owners' free exercise rights under the 1st Amendment and RFRA. However the court held that the other business, a sole proprietorship, cannot assert a claim since it is not a separate entity. Instead its owner, who is also a plaintiff in the case, may assert the business' rights in his own name.

The court went on to apply the strict scrutiny standard, both under RFRA, and under the 1st Amendment as well finding that extensive exemptions prevent the mandate from being a "generally applicable" law. The court concluded that the owners had put forward a plausible claim that the mandate will impose a substantial burden on their religious beliefs, and that the government has failed to show a compelling interest in enforcing the mandate against these defendants. The court dismissed Establishment Clause, free speech and due process challenges.

Finally, in what may be a first in the many decisions handed down so far in challenges to the mandate, the court held that "plaintiffs set forth sufficient factual allegations to support a plausible claim that the notice and comment requirements of the APA were violated." ADF issued a press release on the decision.

UN Special Rapporteur Presents Findings On Rights of Religious Minorities

On March 5, Heiner Bielefeldt, United Nations Special Rapporteur on freedom of religion or belief, presented a report to the United Nations Human Rights Council on protecting religious minorities. (UN Press Release.) The Report (dated Dec. 24, 2012) (full text) concludes:

Human rights violations against persons belonging to religious minorities include disproportionate bureaucratic restrictions; denial of appropriate legal status positions needed to build up or uphold a religious infrastructure; systematic discrimination and partial exclusion from important sectors of society; discriminatory rules within family laws; indoctrination of children from minorities in public schools; publicly stoked prejudices and vilification sometimes connected with historic traumas and national mythologies; acts of vandalism and desecration; prohibition or disruption of religious ceremonies; threats and acts of violence; interference in the community’s internal affairs; confiscation of community property; criminal sanctions; denial of asylum, possibly resulting in extraditions and exposure to serious risks of persecution.

The report concludes with 30 recommendations, the most controversial of which is:

States should repeal any criminal law provisions that penalize apostasy, blasphemy and proselytism as they may prevent persons belonging to religious or belief minorities from fully enjoying their freedom of religion or belief.

Charisma News reports on these developments.

Suit Says Forest Service Did Not Adequately Protect Tribal Sacred Site In Permitting Uranium Mine

Yesterday, the Havasupai Tribe, along with three environmental groups, filed suit against the U.S. Forest Service challenging its decision to allow operation of a uranium mine near Grand Canyon National Park based only on a 1986 federal environmental review. (Press release).  The complaint (full text) in Grand Canyon Trust v. Williams, (D AZ, filed 3/7/2013) claims that the Forest Service failed to comply with environmental, mining, public land, and historic preservation laws. It alleges, among other things, that while the Forest Service has designated the area as Traditional Cultural Property and has recognized that it is a sacred site to the Havasupai Tribe and has begun consultations with the Tribe, it refuses to carry out a complete "Section 106 process" under the National Historic Preservation Act, which would include developing a memorandum of agreement with the tribe and state historic preservation office before restarting mining operations.

Court Refuses To Dismiss Challenge To 10 Commandments Monument

In Freedom From Religion Foundation, Inc. v. Connellsville Area School District, (WD PA, March 7, 2013), a Pennsylvania federal district court refused to dismiss an Establishment Clause challenge to a 6-foot tall stone monument containing the Ten Commandments located near the auditorium entrance to a junior high school.  The monument was donated to the school by the Fraternal Order of Eagles in 1957.  In allowing plaintiffs to move ahead, the court said in part:

Establishment Clause challenges are all unique and driven by the particular facts of the case. Plaintiffs are entitled to a reasonable time in which they may conduct limited discovery in their attempt to garner support for the cause they pursue, such as developing evidence from sources other than the commentary posted by board members with regard to the School District’s purpose for accepting and maintaining the monument. Discovery will also afford Defendant the opportunity to inquire deeper into whether particular hypersensitivities exist such that the viewpoint of a reasonable observer would differ, uncover the historical background of the monolith, and confirm the claimed nature of the content on the display.

The Pittsburgh Tribune-Review reports on the decision.

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.