Colorado Legislature Approves Civil Unions; Governor Expected To Sign Bill

The Colorado legislature today gave final passage to SB 13-11, the Colorado Civil Union Act, authorizing both same-sex and opposite-sex civil unions and giving parties to a civil union the same rights and obligations as spouses. It provides that a civil union may be certified by a judge, a magistrate, the parties or "in accordance with any mode of recognition ... by any religious denomination."  AP reports that Governor John Hickenlooper has said he will sign the bill, Many Republicans have expressed concern about the absence in the bill of religious exemptions for those opposed to civil unions.  Supporters say this would invite discrimination.  In 2006, Colorado approved a state constitutional amendment barring gay marriage-- but not civil unions.

Hungarian Parliament Passes Constitutional Amendment Giving Parliament Power To Recognize Religious Communities

Deutsche Welle reports that yesterday the Hungarian parliament passed a package of Constitutional amendments. Among other things, they limit the power of the country's Constitutional Court. They also effectively overrule a Constitutional Court decision handed down last month (see prior posting). That decision invalidated Hungary's Law on Legal Status of Churches that required all but 14 traditional faiths to apply to Parliament for recognition. The new constitutional amendments specifically authorize parliament to decide on recognition of religious communities,

Judge Rejects Request To Exclude Jews From Jury In Accused Terrorist's Trial

A federal district court judge in New York City yesterday denied a motion by counsel for an accused terrorist who wanted to exclude Jews from the jury because there will be inflammatory testimony at trial about Jews and Zionism.  ABC News reports that Frederick Cohn, the lawyer representing Abdel Hameed Shehadeh who is accused of making false statements about plans to kill Americans in Afghanistan, initially made the request last month to Judge Eric Vitaliano.

Pennsylvania Seminary Seeks To Intervene In Texas Schools' Challenge To Contraceptive Coverage Mandate

In a press release yesterday, the Pennsylvania-based Westminster Theological Seminary announced that it has filed a Motion to Intervene (full text) as a plaintiff in a Texas federal district court lawsuit brought  by East Texas Baptist University and Houston Baptist University challenging the Affordable Care Act contraceptive coverage mandate. (See prior posting.)

Meanwhile according to the South Bend (IN) Tribune , in a separate case, Notre Dame University filed a notice of appeal to the 7th Circuit in its challenge to the contraceptive coverage mandate. The district court dismissed its lawsuit on standing and ripeness grounds. (See prior posting.)

Suit Challenges Catholic Cemetery's Headstone Rules

The Indianapolis (IN) Star reported yesterday on a lawsuit against an arm of the Indianapolis Archdiocese over rules of a North Vernon, Indiana cemetery. Shannon Carr spent $9600 on a  black granite headstone for her late husband that reflected his interests.  It is shaped like a couch and depicts images of a deer, a dog and color logos of NASCAR and the Indianapolis Colts. St. Joseph Catholic Church notified the monument maker that the marker did not meet cemetery requirements.  The priest at St. Joseph says that even though regulations were not formalized until after Carr purchased the monument, Carr was notified before she purchased the marker that the Parish Council had determined that it was too secular under informal rules that were understood at that time. The Archdiocese attorney says that the court lacks jurisdiction over the case because deciding it would involve civil authorities in church affairs. [Thanks to Amy Edmonds for the lead.]

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.