California Supreme Court Rejects Last Ditch Effort To Enforce Proposition 8

As reported by the Los Angeles Times, the California Supreme Court yesterday denied the petition for a writ of mandate that was filed last month seeking to require county clerks in the state to enforce Proposition 8's ban on same-sex marriages, despite the U.S. Supreme Court's decision in June in Hollingsworth v. Perry.  The state supreme court's Aug. 14 order (full text) in Hollingsworth v. O'Connell did not give reasons for the denial of the writ of mandate. Petitioners had argued (see prior posting) that the injunction in Hollingsworth v. Perry (see prior posting) should be read narrowly to cover only the specific plaintiffs or specific counties involved in the case.

Split 3rd Circuit Denies En Banc Rehearing In Contraceptive Coverage Case

By a vote of 7-5 yesterday the U.S. 3rd Circuit Court of Appeals denied an en banc rehearing in Conestoga Wood Specialties Corp. v. Secretary of U.S. Department of Health and Human Services. In the case, a 3-judge panel in a 2-1 decision last month denied a preliminary injunction sought by a family-owned business to stop enforcement of the Affordable Care Act contraceptive coverage mandate. (See prior posting.) Alliance Defending Freedom announced that it would now petition the U.S. Supreme Court to review the decision.

Cameroon Closing A Number of Unregistered Christian Churches

Voice of America and the Cameroon Tribune report that in the west African nation of Cameroon the government has begun closing down a number of illegal Christian churches which it says are engaging in activities that are a threat to public order. The churches say that they have been targeted because their pastors have criticized the government of President Paul Biya. However, the government contends that the churches have engaged in a variety of improper activities from disturbing neighborhoods by use of loud speakers and instruments, to dividing families. Cameroon law requires government approval and registration of religious groups that wish to operate in the country. (Background.) The government says that the churches being closed have not registered and do not intend to do so.

Buckingham Palace Lists Young Albert and Leopold In Line of Succession Even Though They Are Catholic

Great Britain's 1701 Act of Settlement prohibits Catholics from succeeding to the throne. However, as reported Monday by The Express, on the Official Website of the British Monarchy five-year old Albert and three-year old Leopold are listed as 39th and 40th in line for the throne even though they are Catholics.  The boys' father, Lord Nicholas Windsor (great-grandson of George V), converted to Catholicism in 2001. His Croatian wife Paola is also a Catholic, and the two boys were baptized as Catholics. Buckingham Palace has not commented on the boys' inclusion in the Line of Succession, but some have suggested that they would not be disqualified until they are old enough to make up their own minds about religion, perhaps at the time of their confirmation.

Good News Clubs Sues School District Over Discriminatory Fees

Yesterday Child Evangelism Fellowship filed a federal lawsuit against the Cleveland, Ohio school district alleging that an elementary school applied the school district's fee policy in a manner that discriminated against CEF's Christian-based Good News Clubs. The complaint (full text) in Child Evangelism Fellowship of Ohio, Inc. v. Cleveland Metropolitan School District, (ND OH, filed 8/13/2013) alleges that the school district violated CEF's 1st and 14th Amendment rights by imposing a facilities use fee on it for use of school space for after-school meetings, but waiving the fee for the Boy Scouts. Liberty Counsel announced the filing of the lawsuit.

2014 National Religious Freedom Moot Court Competition Announced

George Washington University Law School has announced the details of its 2014 Religious Freedom Moot Court Competition for law school students. This year's Problem involves a challenge to a federal program that provides financial assistance for rebuilding after natural disasters.  At issue is the hypothetical program's coverage of houses of worship along with other community facilities. The Competition will be held Feb. 7-8, 2014 in Washington, D.C.

Illinois Diocese Settles Sex Abuse Lawsuit

According to today's Bergen County (NJ) Record, the Catholic Diocese of Peoria, Illinois has agreed to pay $1.35 million in a settlement of a lawsuit alleging that John J. Meyers-- its former bishop and now Archbishop of Newark-- failed to adequately investigate a 1995 report of sexual abuse by a priest. Plaintiff in the lawsuit and at least three other boys were abused by the priest, Monsignor Thomas W. Maloney, after the 1995 complaint against him.

Another Contraceptive Coverage Mandate Challenge; DOJ Wants Gilardi To Be Test Case In DC Circuit

Last week, yet another lawsuit was filed by a for-profit corporation and its owners challenging the Affordable Care Act's contraceptive coverage mandate.  The complaint (full text) in Trijicon, Inc. v. Sebelius, (D DC, filed Aug. 7, 2013), alleges:

The Mandate illegally and unconstitutionally requires Trijicon to violate its and its owners’ religious beliefs by forcing the company to provide abortion-inducing items, such as “Plan B” (the so-called “morning after pill”), Ella (the so-called “week after pill”), and intauterine devices (“IUDs”).

Trijicon is a leading manufacturer of sights and rifle scopes sold to hunters and to the military.  According to an Aug. 9 press release from Alliance Defending Freedom, the Justice Department has now notified the court that (as explained in plaintiffs'  motion for preliminary injunction) it will not oppose the granting of a preliminary injunction, so long as Plaintiffs agree to stay proceedings pending the D.C. Circuit Court of Appeals final disposition of a similar challenge to the ACA in Gilardi v. Sebellius. The government's action is consistent with steps it has taken in other cases to use Gilardi as the vehicle for the DC Circuit to pass on business challenges to the mandate.

An interesting side note-- in 2010 Trijicon became the center of news coverage when it agreed to stop including coded references to Bible verses as part of the serial number on rifle sights supplied to the military. (See prior posting.)

Court Temporarily Permits Continuation of Challenged Lease To Jewish School

An Albany County, New York trial court judge last week stayed until at least Oct. 18 a decision by the State Education Commissioner that would have invalidated a lease of a school building by the East Ramapo Central School District to an ultra-Orthodox Jewish girls' school operated by Congregation Avir Yakov of New Square, NY.  According to Sunday's Lower Hudson Journal News, originally the school building was sold to Avir Yakov for $3.1 million, but that sale was cancelled by the State Education Commissioner after the Attorney General's office charged that Avir Yakov had paid off an appraiser to submit an artificially low appraisal of the building. Since then, East Ramapo has rented the building to Avir Yakov for $19.000 a month plus $2000 per month for the right of first refusal to buy the building. The Education Commissioner, responding to the complaint of the Save Our Schools Coalition, decided that this was an inadequate rental amount.  East Ramapo argued for the stay pending appeal of the Commissioner's decision because  the school district would have had to cut school services to reflect its loss of the $252,000 of income it anticipated this year from the lease.  A cancellation would also have left the Jewish school without a building just as the school year begins.

Israel's National Tennis Team Gets Monetary Penalty For Rescheduling of Yom Kippur Match

JTA reports today that Israel's national tennis team has been ordered by the International Tennis Federation to pay the Belgian Tennis Association over $13,000 for the inconvenience of rescheduling a Davis Cup match that was originally to take place on Yom Kippur.  Initially the Belgian team refused to reschedule the Sept. 14 match in Antwerp. The International Tennis Federation stepped in and changed the date to Sept. 15, but with the monetary penalty. The Israel Tennis Association is a non-profit organization.

Tennessee Magistrate Objects To Child Being Named "Messiah"

AP and WBIR report on the decision of a Newport, Tennessee Child Support Magistrate who last week ordered that a 7-month old child's name be changed to Martin instead of Messiah, even though Messiah was among the fastest rising baby names last year. The parents were in court because they could not agree on a last name for their child, but Magistrate Lu Ann Ballew ordered the child's first name changed also. She ruled that it is in the best interest of the child, particularly if he grows up in largely Christian Cocke County (TN).  In issuing the order that the boy be named Martin DeShawn McCullough (incorporating the last names of both parents), Magistrate Ballew said: "The word Messiah is a title and it's a title that has only been earned by one person and that one person is Jesus Christ." The child's mother is appealing the magistrate's decision to the Tennessee Chancery Court. A hearing is scheduled for Sept. 17.

Suit Charges School Officials With Ignoring Anti-Jewish Harassment of 13-Year Old

The Quincy (MA) Patriot Ledger reports on a lawsuit filed July 30 in Massachusetts federal district court by the parents of a 13-year old charging Carver, Massachusetts school officials with ignoring and failing to prevent anti-Semitic harassment and bullying of their son.  The suit alleges that since the boy began attending Carver Middle High School in 2011 he has been subjected to derogatory slurs, Nazi salutes and physical abuse from a group of other boys, two of whom were arraigned last month on assault and battery and civil rights charges.

Recent Articles and Books of Interest

From SSRN:

• Kara Loewentheil, When Free Exercise Is A Burden: Protecting 'Third Parties' in Religious Accommodation Law, (August 6, 2013).
• Susan C. Hascall, Islamic Commercial Law and Social Justice: Shari’ah Compliant Companies, Workers’ Rights, and the Living Wage, (St. John's Law Review, Vol. 88, No. 1, 2014).
• Engy Abdelkader, To Judge or Not to Judge: A Comparative Analysis of Islamic Jurisprudential Approaches to Female Judges in the Muslim World (Indonesia, Egypt and Iran), (Fordham International Law Journal, Forthcoming).
• Iain T. Benson, Religious Interfaith Work in Canada and South Africa with Particular Focus on the Drafting of a South African Charter of Religious Rights and Freedoms, (HTS Teologiese Studies/Theological Studies 69(1), Art. #1319, DOI: org/10.4102/hts.v69i1.1319 (2013)).
• Muhammad Munir, Freedom of Expression, Information, Thought and Religion in Islam and Convention on the Rights of the Child (CRC), (July 13, 2013).

From SmartCILP:

• William E. Nelson, The Persistence of Puritan Law: Massachusetts, 1660-1760, [Abstract], 49 Willamette Law Review 307-409 (2013).

New Books:

• Steven D. Smith, The Rise and Decline of American Religious Freedom, (Harvard Univ. Press, Feb. 2014).
• Kimberly D. Richman, License to Wed: What Legal Marriage Means to Same-Sex Couples, (NYU Press, Dec. 2013).

British Equalities Office Implements Long Process to Implement Ban On Caste Discrimination

For a number of years, Britain has debated whether to include caste discrimination among individuals from the Indian subcontinent as part of its anti-discrimination laws. The Equality Act 2010, Sec. 9, gave the government authority to issue an Order to include caste discrimination. Then the Enterprise and Regulatory Reform Act 2013, Sec. 97, required the government to issue such an Order, and not repeal it until at least 2015.  Last month the Government Equalities Office issued a timetable (full text) for public consultation and drafting of the caste legislation, projecting that a final draft Order would be introduced into Parliament in Summer 2015. The Dalit Solidarity Network, in a July 29 press release, charged that the timetable is really an attempt by the government to delay or kill the ban.  As reported yesterday by the Times of India, the Alliance of Hindu Organisations opposes the ban:

For the AHO, the two-year consultation has come as a fulfillment of its demand. It wants the consultation to address "the issues of definition of caste, the need to avoid disclosure of caste and a sunset clause to allow the removal of the legislation". AHO has also expressed concerns about the "intolerant, offensive and inaccurate comments" that had been made, "in particular in the House of Lords", against the Hindu community during the debates in April on the anti-caste discrimination law.

Recent Prisoner Free Exercise Cases

In Williams v. Allen, 2013 U.S. Dist. LEXIS 109388 (MD GA, Aug. 5, 2013), a Georgia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 110468, July 3, 2013) and permitted a Muslim inmate to proceed against the prison warden with his complaint that his free exercise rights were infringed when he was denied a nutritionally adequate vegan diet.

In Salim v. Carlson, 2013 U.S. Dist. LEXIS 110459 (ED WI, Aug. 6, 2013), a Wisconsin federal district court, finding factual disputes, allowed a Muslim inmate to move ahead with his complaint that while in administrative segregation he was denied a Qur'an, and was denied a Salat schedule and clock, the opportunity to fast during Ramadan and to participate in feast day activities.

In Leach v. New York City, 2013 U.S. Dist. LEXIS 110611 (SD NY, Aug. 2, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 110658, March 6, 2013) and dismissed a suit by an inmate who claimed to be an "unorthodox [J]ewish religious observer". Plaintiff complained that the City failed to provide him with Kosher Matzos on a regular basis and did not allow him to speak with a Rabbi on one occasion.

In Diggs v. Volpe, 2013 U.S. Dist. LEXIS 111365 (SD NY, Aug. 7, 2013), a New York federal district court dismissed a Muslim inmate's complaint that for a 4-month period while in disciplinary confinement he was unable to attend congregate religious services.

In Vazquez v. Officer Waln, 2013 U.S. Dist. LEXIS 111437 (MD NC, Aug. 7, 2013), a North Carolina federal magistrate judge dismissed RLUIPA, free exercise and equal protection claims by a Mexican-born Native American inmate who objected when Religious Box was confiscated because he failed to store it in his locker.

In Perry v. Knowles, 2013 U.S. Dist. LEXIS 111617 (ED TN, Aug. 8, 2013), a Tennessee federal district court dismissed an inmate's complaint that the jail administrator confiscated his religious material and failed to tell him the time so he would know when to pray.

In Mead v. Palmer, 2013 U.S. Dist. LEXIS 112291 (ND IA, Aug. 9, 2013), an Iowa federal district court permitted a civilly committed sex offender to proceed with his complaint that for two years authorities have refused to furnish him with a minister of his faith to minister to him in a Sunday service.

U.S. Flies Rescued Family Back After Their Failed Attempt To Sail To Kiribati For Religious Freedom

AP reports that U.S. Embassy officials in Chile have arranged for the flight back to the United States of 5 members of a northern Arizona family who were rescued after 2 months at sea in a failed attempt to sail their small boat from California to the island nation of Kiribati. According to Hannah Gastonguay, her family left the U.S. because they were fed up with government interference with religious independence. She said that as Christians they don't believe in "abortion, homosexuality, in the state-controlled church," and objected to being "forced to pay these taxes that pay for abortions we don't agree with." The Gastonguays are not members of any church; their beliefs come through reading the Bible and prayer.

Glitch In Affordable Care Act Threatens Viability Of Church Health Plans; Fix Introduced But Unlikely To Pass

Religion News Service reports today on a technical glitch in the Affordable Care Act that will make it difficult for churches to continue to offer church health plans.  Under the Act, tax credits are available to low-income and middle class families to assist them in purchasing insurance through the government-run exchanges.  However the same credits are not available for church employees to use to purchase insurance under church plans. This means that many clergy and other church employees who qualify for tax credits are likely to pull out of church plans and purchase insurance on exchanges. That may well jeopardize the viability of church plans.  S. 1164, The Church Health Plan Act of 2013, was introduced in June by Senators Mark Pryor (Ark.) and Chris Coons (Del.) to correct this inconsistency so tax credits can be used for church plans.  However Republican opposition to enacting improvements to Obamacare make it unlikely that the bill will be enacted.

Same-Sex Marriage Developments Continue

Developments stemming from the U.S. Supreme Court's recent same-sex marriage decisions continue to be reported:

According to yesterday's Deseret News, Utah businessman Jonathan Johnson, executive vice chairman of  Overstock.com, is undertaking a national campaign, beginning in Utah, urging states to amend their constitutions to protect religious organizations from being required to  "solemnize, officiate in, or recognize any particular marriage or religious rite of marriage in violation of its beliefs."

Under American immigration law, an individual may receive a derivative visa if his or her spouse or first-degree relative is eligible for U.S. residency.  Haaretz reports that the American embassy in Israel has issued its first derivative visas to Israeli same-sex spouses who were married legally outside of Israel.

Court Invalidates Temporary Land Use Limits On Pregnancy Center As Overbroad and Vague

In The Life Center, Inc. v. City of Elgin, Illinois, (ND IL, Aug. 8, 2013), an Illinois federal district court invalidated Elgin's temporary land use provision as unconstitutionally overbroad and vague. The ordinance was challenged by The Life Center, a religiously-based organization that furnishes pregnant women with religious literature and certain prenatal services. Its mobile facility operates from commercial parking lots with the consent of the owners.  The ordinance limits the number of days the facility can operate. The court held:

The definitions under the Code for the terms "land use" and "structure" are so broad, they would encompass virtually all types of activity, including a substantial amount of activity protected under the First Amendment.

Plaintiffs claim that the 2012 amendments to the city ordinance that put in place the challenged provisions were targeting The Life Center. Christian Newswire carries TLC's press release on the decision.

U.S. Amicus Brief In Supreme Court Supports Town's Invocation Policy

Some two dozen amicus briefs in support of the Town of Greece, New York's prayer policy have been filed with the U.S. Supreme Court in Galloway v. Town of Greece. The case is scheduled to be argued this term.  (Amicus briefs in support of plaintiffs challenging the policy are not yet due.) Among the most interesting of the briefs supporting the town is the one filed by the Solicitor General on behalf of the United States. (Full text.) In the brief filed Aug. 2, the SG argues that legislative prayer which does not proselytize, disparage any religion or advance a particular faith does not violate the Establishment Clause "merely because most prayer-givers are Christian and many or most of their prayers contain sectarian references." The brief adds: "Neither federal courts nor legislative bodies are well suited to police the content of such prayers." The Second Circuit held that the town's invocation practices convey the impression that it is endorsing Christianity. (See prior posting.)