Kentucky Legislature Overrides Veto of Religious Freedom Bill

The Kentucky General Assembly voted Tuesday to override Gov. Steve Beshear's veto of HB 279 (see prior posting), a religious freedom bill that many found vague in its coverage. According to the Lexington Herald-Leader, the vote to override was 79-15 in the Democratic-controlled House, and 32-6 in the Republican controlled Senate. The bill, which is more protective of religious freedom than the analogous federal Religious Freedom Restoration Act, was introduced in response to a Kentucky Supreme Court ruling last year upholding a state law requiring the Amish to display bright orange safety triangles on their buggies. (See prior posting.)  However opponents of the bill say it might allow individuals to invoke their religious beliefs to ignore local ordinances that bar discrimination on the basis of sexual orientation. [Thanks to Blog from the Capital for the lead.]

North Dakota Legislature Submits Personhood Amendment To Voters

The North Dakota Legislative Assembly gave final approval last week to a proposed "Personhood" amendment to the state constitution. Senate Concurrent Resolution 4009 provides:

The inalienable right to life of every human being at any stage of development must be recognized and protected.

State voters will be asked to vote on the amendment in the November 2014 general election. As reported by Policymic, this week Governor Jack Dalrymple also signed three other bills placing restrictions on abortions and, in the view of many, directly challenging Roe v. Wade. As described by the Fargo-Moorhead Forum, House Bill 1305 bans abortions performed solely for gender selection or genetic abnormalities; House Bill 1456 bans abortions if a fetal heartbeat is detected; and Senate Bill 2305 requires physicians who perform abortions to have admitting and staff privileges at a hospital within 30 miles of the abortion facility.

District Court Enjoins County's Opening of Meetings With Christian Prayers

In Hudson v. Pittsylvania County, Virginia, (WD VA, March 27, 2013), a Virginia federal district court issued a permanent injunction against the prayer policy of the Board of Supervisors of Pittsylvania County, Virginia.  Prior to the entry of a preliminary injunction in Feb. 2012 (see prior posting), the Board consistently opened each meeting with a prayer offered by a Board member and making specific Christian references. The court held that plaintiff, a non-Christian who attends Board meetings, has standing to sue. It concluded that the Board's sectarian prayers violate the Establishment Clause. The court's injunction prohibits the Board "from repeatedly opening its meetings with prayers associated with any one religion." An ACLU press release discusses the court's decision. [Thanks to Scott Mange for the lead.]

German Atheist Company Claims Discrimination By US Postal Service Workers

A German company, Atheist Shoes, claims that the U.S. Postal Service is delaying and losing its deliveries because of the company's beliefs. The small company, which designs and produces shoes, was created by a group of atheists. Here is a portion of the company's full account (apparently posted earlier this week) of its experiences in shipping its shoes to customers in the United States:

We have lots of customers in the USA, but sometimes the shoes we send them take longer than they should to arrive, or even go missing. and, when some of our customers asked us not to use Atheist-branded packing tape on their shipments, we started to wonder if the delays were caused by the US Postal Service taking offence at our overt godlessness.

So, we launched an experiment. We sent 178 packages to 89 people, in 49 US states. Each person was sent 2 packages; one sealed with Atheist-branded packing tape, the other with a neutral tape.

They all left Berlin on November 21st, 2012, and, in theory, the branded and unbranded packages should have traveled at exactly the same speed. Atheist-branded packages took on average 3 days longer to reach their destinations. 9 Atheist packages went missing, and just 1 non-branded....

Having run a series of control tests in Germany and Europe, which demonstrate no such bias, the problem appears to lie in the USA and is likely explained by the differential handling of packages by the employees of the US Postal Service....

We're no longer using Atheist-packing tape on our shipments to the USA and delivery times are already improving....

[Thanks to Boing Boing via Scott Mange for the lead.]

9th Circuit: City's Invocation Policy Upheld Despite Christian References In Many Prayers

In Rubin v. City of Lancaster, (9th Cir., March 26, 2013), the U.S. 9th Circuit Court of Appeals rejected an Establishment Clause challenge to the Lancaster, California city council's practice of opening its sessions with a prayer.  The city solicits volunteers from local congregations of all faiths. Plaintiffs however object that a number of invocations still invoked Jesus' name. The court held, however, that sectarian Christian references are not prohibited by the Establishment Clause, so long as the city has not taken steps to affiliate itself with Christianity. The fact that most of the invocations are offered by Christian clergy is merely a function of the city's demographics and choices religious leaders make on whether to respond to the city's invitation to offer an invocation. The court added that asking judges to decide what amounts to a sectarian reference in a prayer: "not only embroils judges in precisely those intrareligious controversies that the Constitution requires us to avoid, but also imposes on us a task that we are incompetent to perform."

State Appeals Court Upholds Taxation Of Part of Church's Family Life Center

In Christ Church Pentecostal v. Tennessee State Board of Equalization, (TN App., March 21, 2013), the Tennessee Court of Appeals upheld a determination by the State Board of Equalization that a portion of a church's multi-million dollar family life center is not exempt from property taxes. The court agreed that the physical fitness center/gymnasium is entitled to only a 50% exemption because it is open for public use on a membership fee basis in addition to its church-oriented uses. It agreed that the center's cafe/bookstore is not entitled to any exemption because it is retail in nature and not used for religious purposes. The court also rejected free exercise, Establishment Clause and equal protection challenges to the tax rulings.

Catholic TV Network's Challenge To Contraceptive Coverage Mandate Dismissed As Not Ripe

In Eternal Word Television Network v. Sebelius, (ND AL, March 25, 2013), an Alabama federal district court dismissed on ripeness grounds a challenge to the Affordable Care Act contraceptive coverage mandate brought by a non-profit Catholic television network. The court explained:

Primarily for these two reasons—namely, (1) avoiding any interference with the ongoing rulemaking process before defendants have finalized their policies, and (2) the temporary nature of the current rules—the court finds that EWTN’s claims are not ripe for review.

The result is consistent with that in 16 out of 18 other similar challenges. Becket Fund has links to all the court filings and news coverage of the case.

Indiana High Court Upholds School Voucher Program

In Meredith v. Pence, (IN Sup. Ct., March 26, 2013), the Indiana Supreme Court unanimously rejected a state constitutional challenge to Indiana's Choice Scholarship Program which makes school vouchers for use at private schools, including religious schools, available to eligible parents. The court rejected challengers' claims that the program violates Art. 8, Sec. 1 of the Constitution that calls for a system of uniform common schools, Art. 1, Sec. 4 that bars compelling anyone from supporting any place of worship,and Art.1, Sec. 6 that prohibits use of state funds to benefit any religious institution. Rejecting the Art. 1, Sec. 6 challenge, the court wrote in part:

In light of the prevailing social, cultural, and legal circumstances when Indiana's Constitution was enacted, we understand Section 6 as not intended to prohibit government support of primary and secondary education which at the time included a substantial religious component.

USA Today reports on the decision. [Thanks to Blog from the Capital for the lead.]

Transcripts and Recordings of SCOTUS Arguments In Same-Sex Marriage Cases Are Available

This week the U.S. Supreme Court heard oral arguments in two cases involving same-sex marriage.  The written transcript and audio recording of Tuesday's arguments in Hollingsworth v. Perry, the challenge to California's Proposition 8 are available on the Supreme Court's website. The written transcript and audio recording of Wednesday's arguments in United States v. Windsor, the challenge to the federal Defense of Marriage Act are similarly available. Before arguments began on Tuesday, thousands of demonstrators on both sides of the issues marched and picketed near the Supreme Court. Yahoo! News reports that the National Organization for Marriage, a coalition of ethnically diverse churches from at least 15 states, were among the marchers opposing same-sex marriage.  But those invoking religion demonstrated in favor of marriage equality as well. One carried a sign reading: "Jesus had two dads and he turned out fine."

UPDATE: Oyez and ISCOTUS have created a website with extensive background information on the cases.

Religion Clause Will Be On A 2-Day Publication Break

Religion Clause will be on a two-day publication break tomorrow and Wednesday. Look for new posts early on Thursday. These will include reporting on the oral arguments in the  Supreme Court that will be held on Tuesday and Wednesday in two important same-sex marriage cases. For those who want to read more on the oral arguments before Thursday, SCOTUSBlog will have its usual excellent coverage of the arguments. The Supreme Court's own website will link to transcripts and audio recordings of the arguments when they become available.      

Civil Rights Commission Holds Briefing On Anti-Discrimination Rules and Religious Liberty

God Discussion reports on the March 22 U.S. Commission on Civil Rights briefing on Reconciling Nondiscrimination Principles With Religious Liberty. (Commission press release.) Two panels of witnesses appeared at the briefing.  Public comments on the topic are being received by e-mail until April 21.

White House Will Host Passover Seder Tonight

The Jewish festival of Passover begins this evening and, according to The Forward, tonight the President and First Lady will be hosting the annual White House Passover Seder that has become a tradition ever since Obama joined three staff members in 2008 during the Pennsylvania primary for a  makeshift seder in a basement hotel conference room.  As usual, only around 20 people will participate in the White House Seder. According to the Washington Post, Obama has added some unique White House traditions to the Seder ceremony-- using the Truman china for the Seder in honor of the President who first recognized the Sate of Israel, and reading of the Emancipation Proclamation after completing the Passover story. It is anticipated that the White House will also release the President's annual Passover greetings later today.

UPDATE: Here is the full text of the President's Statement on Passover, sending "warmest wishes to all those celebrating Passover here in America, in the State of Israel, and around the world."

Recent Articles and New Books of Interest

From SSRN:

• Mark C. Modak-Truran, Legitimation, (Michael T. Gibbons, Diana Coole, & Kennan Ferguson eds., Encyclopedia of Political Thought (Wiley-Blackwell) (Forthcoming)).
• Sahar F. Aziz, Addressing Discrimination against Arabs, Muslims, and South Asians: Testimony before the Equal Employment Opportunity Commission, (July 18, 2012).

From SmartCILP:

• E. Duncan Getchell, Jr. and Michael H. Brady, How the Constitutions of the Thirty-seven States In Effect When the Fourteenth Amendment Was Adopted Demonstrate That the Governmental Endorsement Test in Establishment Clause Jurisprudence Is Contrary to American History and Tradition, 17 Texas Review of Law & Politics 125-184 (2012).
• Bruce B. Jackson, Secularization by Incorporation: Religious Organizations and Corporate Identity, 11 First Amendment Law Review 90-148 (2012).
• R. Randall Kelso, Justice Kennedy's Jurisprudence on the First Amendment Religion Clauses, [Abstract], 44 McGeorge Law Review 103-165 (2013).
• Timur Kuran and Scott Lustig, Judicial Biases in Ottoman Istanbul: Islamic Justice and Its Compatibility with Modern Economic Life, 55 Journal of Law & Economics 631-666 (2012).
• Ofrit Liviatan, From Abortion to Islam: The Changing Function of Law In Europe's Cultural Debates, 36 Fordham International Law Journal 93-135 (2013).
• David E. Steinberg, Thomas Jefferson's Establishment Clause Federalism, 40 Hastings Constitutional Law Quarterly 277-318 (2013).
• Religion and the Law. Articles by Matthew S. Bowman and students Christopher P. Schandevel & O. Woelke Leithart. 6 Phoenix Law Review 31-91 (2012).

New Books:

• Christian Joppke and John Torpey, Legal Integration of Islam-- A Transatlantic Comparison, (Harvard Univ. Press, April 2013).
• Timothy D. Lytton, Kosher-- Private Regulation in the Age of Industrial Food, (Harvard Univ. Press, April 2013).
• Marc O. DeGirolami, The Tragedy of Religious Freedom, (Harvard Univ. Press, June 2013).
• Faisal Devji, Muslim Zion-- Pakistan as a Political Idea, (Harvard Univ. Press, Sept. 2013).

Recent Prisoner Free Exercise Cases

In Shabazz v. Virginia Department of Corrections, 2013 U.S. Dist. LEXIS 36317  (ED VA, March 15, 2013), a Virginia federal district court dismissed complaints by a Nation of Islam inmate that he is not permitted to purchase NOI religious non-music CDs directly from The Final Call, but must petition to have them added to the catalog of the prison's exclusive vendor.

In Loccenitt v. City of New York, 2013 U.S. Dist. LEXIS 36330 (SD NY, March 15, 2013), a Muslim inmate sued complaining of a lack of Halal meals and inability of inmates in the special housing unit to attend Friday Jummah services.A New York federal district court permitted plaintiff to move ahead on the Jummah services claim against certain defendants and held that an amended complaint could be filed expanding on the Halal meal claim.

In Carter v. Washington Department of Corrections, 2013 U.S. Dist. LEXIS 36365 (WD WA, March 15, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 36367, Feb. 27, 2013) and dismissed a Muslim inmate's complaint about the 2010 Ramadan meal policy.

In Smith v. Riley, 2013 U.S. Dist. LEXIS 35273 (ND AL, March 14, 2013), an Alabama federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 36439, Feb. 7, 2013) and dismissed an Odinist inmate's complaint that he was denied various religious items, some of his books were confiscated and he was discriminated against. The court also dismissed his challenge to the prison's faith-based honor dorms.

In Phillips v. Lecuyer, 2013 U.S. Dist. LEXIS 35267 (ND NY, March 14, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 36452, Feb. 19, 2013), and held that an SHU inmate's threat to facility security justified the refusal to allow him to participate in Native American religious ceremonies with the facility's general population.

In Shapiro v. Community First Services, 2013 U.S. Dist. LEXIS 37137 (ED NY, March 18, 2013), a New York federal district court refused to dismiss a Quaker inmate's suit against employees of a halfway house complaining that during his 3-week residence, the 3-hour weekly pass he was given was not long enough to allow him to travel to and from, and attend, his religious services.

In Jean-Laurent v. Lawrence, 2013 U.S. Dist. LEXIS 38004 (SD NY, March 19, 2013), a New York federal district court dismissed on qualified immunity grounds a claim for damages by a Muslim inmate who claimed his religious beliefs were infringed when he was required to stand in his underwear while his belongings were searched by male and female officers, and was required to proceed to the shower fully in the nude with a female officer less than 15 feet away.

In French v. Maryland Division of Corrections, 2013 U.S. Dist. LEXIS 37862 (D MD, March 15, 2013), a Maryland federal district court dismissed complaints by two Muslim inmates regarding accommodation of Ramadan fasting and failure to provide meals expressly labeled Halal.

In Blanks v. Cate, 2013 U.S. Dist. LEXIS 11233 (ED CA, March 25, 2013), a California federal magistrate judge, in an amended opinion after reconsideration in light of an intervening 9th Circuit decision, again recommended dismissing complaints that authorities failed to procure a Rastafarian chaplain, did not provide a separate outside place of Rastafarian worship, refused to allow possession of religious items and failed to approve a Rastafarian religious vendor.

In Evans v. Jabe, 2013 U.S. Dist. LEXIS 38745 (ED VA, March 18, 2013), a Virginia federal district court dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint about authorities cutting short weekly Jummah services. However the court refused to dismiss at this time plaintiff's complaint that an institutional lock down interfered with meals to allow his Ramadan fasting.

In Stiles v. Shick, 2013 U.S. Dist. LEXIS 40301 (WD NC, March 22, 2013), a North Carolina federal district court dismissed an inmate's claim that prison officials should have purchased an Indian Bible for him.

In Cryer v. Spencer, 2013 U.S. Dist. LEXIS 39447 (D MA, March 21, 2013), a Massachusetts federal district court allowed an inmate to move ahead with claims for declaratory and injunctive relief, but not for damages, in his suit claiming denial of access to a cassette player and Native American audiotapes, and to a Native American clergy member or volunteer.

In Cunningham v. Fayette County Detention Center, (KY App., March 22, 2013), a Kentucky appeals court dismissed a claim for declaratory relief by a Muslim pre-trial detainee who was precluded from participating in group prayer during Ramadan. The court held that the claim is moot because plaintiff is no longer at the detention center involved.

Teachers May Proceed With Free Exercise Challenge To Board's Ending of Sick Leave Use For Religious Holidays

In Berkowitz v. East Ramapo Central School District, (SD NY, March 21, 2013), Jewish teachers and nurses sued after school officials refused to abide by provisions in collective bargaining agreements allowing teachers and school nurses to use paid sick leave days for observance of religious holidays. The school board's change in policy was taken in response to New York state appeals court case holding that compliance with a somewhat different religious observance policy was a violation of the Establishment Clause. In the suit challenging the East Ramapo policy change, a New York federal district court found that the school board's actions did not violate the Establishment Clause or the equal protection clause. However the court held that plaintiffs may proceed with their 1st Amendment and New York state Constitution free exercise challenges.  The court concluded that the collective bargaining agreement provisions here are an appropriate accommodation of religious exercise and do not violate the Establishment Clause.

Another ACA Mandate Challenge By Catholic Non-Profits Dismissed On Ripeness Grounds

In Franciscan University of Steubenville v. Sebelius, (SD OH, March 22. 2013), an Ohio federal district court, following the lead of 15 other federal courts, dismissed for lack of ripeness a challenge to the Affordable Care Act contraceptive coverage mandate in a suit brought by two Catholic non-profits.  Plaintiffs were Franciscan University and the Michigan Catholic Conference. The court concluded:

The “safe harbor” provision, which protects Plaintiffs from enforcement presently, coupled with ongoing process to amend the ACA regulations to address Plaintiffs’ concerns, which is substantiated by the recently published NPRM, makes the harm Plaintiffs allege unlikely to ever occur.

AP reports on the decision.

Malta's New Prime Minister Seeking To Amend Concordat With Vatican On Marriages

Earlier this month, in Malta the Labour Party for the first time in 15 years won control of the government. The new Prime Minister is Joseph Muscat. (Deutsche Welle). The Times of Malta reports today that Muscat will be seeking talks with the Vatican to revise Malta's 1993 Concordat with the Vatican on "The Recognition of Civil Effects to Canonical Marriages and to the Decisions of the Ecclesiastical Authorities and Tribunals About the Same Marriages" (full text).  The prime minister is proposing reforms that will make the civil courts supreme in regard to marriage law. (Malta has 10 separate Concordats with the Vatican on various topics.) Malta's Archbishop Paul Cremona says that the Church is available for such talks. The Prime Minister said that the government also has a mandate to legislate civil unions.

Kentucky Governor Vetoes "Flawed" Religious Freedom Bill

Earlier this month the Kentucky legislature passed HB 279, a religious freedom bill, that provided:

Government shall not substantially burden a person's freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A "burden" shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.

On Friday Gov. Steve Beshear vetoed the bill. In his veto message (full text), he called the bill "flawed," saying in part:

as written, the measure is itself vague, and thereby creates impermissible uncertainty for businesses, individuals and governmental agencies as to the boundaries of existing laws.

In a press release, the Governor's office expanded on the reasons for the veto, objecting to the heightened standard of "clear and convincing proof" and the unclear definition of "burden," both of which make the law different from the federal Religious Freedom Restoration Act. The press release listed dozens of organizations and public officials who supported the governor's veto. Their concerns included possible weakening of local civil rights laws; negative impact on enforcement of drug laws; financial burdens on local governments; and possible withholding of needed medical care or use of religion as a justification for abuse. The governor said he is willing to work with supporters to develop a bill that avoids the unintended consequences of this version.

According to the Richmond Register, the state Senate is prepared to vote to override the governor's veto. However it is less clear whether the House will do so.

Appeals Court Says Church of Cognitive Therapy Is Not A "Religion"

In State of Idaho v. Cordingley, (ID App., March 21, 2013), an Idaho appeals court rejected defendant's claim that possession of marijuana and paraphernalia charges against him should be dropped on religious freedom grounds. Defendant claimed that he was the founder of the Church of Cognitive Therapy (COCT) which established the use of marijuana as a "sacrament." The appeals court agreed with the lower court's ruling that COCT is not a "religion" for purposes of Idaho's Free Exercise of Religion Protected Act. Instead COCT's purpose is merely "to facilitate the use of marijuana, as an accompaniment to a member’s other religious (or nonreligious) beliefs." In reaching that conclusion, the court adopted a multi-factor test for defining religion that had been set out by the 10th Circuit.

UPDATE: A petition for review has been filed with the Idaho Supreme Court. It is available at 2013 Ida. LEXIS 124 (March 21, 2013).

Jehovah's Witnesses In Puerto Rico Get Access To Locked Neighborhoods

A Puerto Rico federal district court, in a case on remand from the 1st Circuit (see prior posting), has ordered neighborhood homeowners' associations (urbanizations) that allow entry into the neighborhood only through an unmanned locked gate operated by a key, access code or beeper to provide Jehovah's Witnesses who wish to proselytize in the neighborhood access equal to that of residents.  In Watchtower Bible Tract Society of New York, Inc.v. Rodriguez, (D PR, March 21, 2013), the court said that this remedy prevents Jehovah's Witnesses' free exercise and expression rights from being limited by any time, place or manner restrictions. The court refused to decide at this time which urbanizations are legitimately using unmanned gates, saying that municipalities should first make that determination. Politics 365 reports on the decision.