Oral Arguments In DC Circuit Contraceptive Mandate Case Available

Yesterday the D.C. Circuit Court of Appeals heard oral arguments in Gilardi v. U.S. Department of Health and Human Services. (Audio of oral arguments- download).  In the case, the district court refused to issue a preliminary injunction to prevent enforcement of the Affordable Care Act contraceptive coverage mandate in a suit by two related for-profit Subchapter S corporations and their Catholic owners. (See prior posting.)  The government views this case as the test case in the D.C. Circuit on small business free exercise and RFRA challenges to the mandate. (See prior posting.) AP reports on the oral arguments.

Catholic Religious Order Files Class Action Challenging Contraceptive Coverage Mandate

Another non-profit has filed suit challenging the Administration's compromise accommodation for their religious objections to the Affordable Care Act contraceptive coverage mandate. The Final Rules provide for insurance companies or third party administrators to furnish health plan enrollees with coverage for contraceptive services.  Yesterday, the Little Sisters of the Poor filed a class action on behalf of the 200 Catholic non-profits that participate in the Christian Brothers Employee Benefit Trust. The Trust is a self-insured "church plan". The complaint (full text) in Little Sisters of the Poor Home for the Aged v. Sebelius, (D CO, filed 9/24/2013) alleges that:

The trustees of the Christian Brothers Trust have not appointed an administrator of the Christian Brothers Trust that is willing to act as a “third party administrator” under the Final Mandate, because the Christian Brothers Trust would thereby be contracting for, arranging for or otherwise facilitating the provision of abortifacients, sterilizations and contraceptives in violation of Catholic teachings.

Becket Fund issued a press release announcing the filing of the lawsuit.

In India, Islamic Organization Sues Government For Defamation Over Police Memo

In India, the Islamic organization Jamaat-e-Islami Hind yesterday filed a defamation lawsuit in Bombay High Court against the Government of India, Government of the state of Maharashtra and the Maharashtra Director General of Police over a memo issued in April by the Mumbai police.  According to NDTV, the memo, circulated to all police stations, claimed that educational institutions run by Jamaat-e-Islami are attempting to enroll female students as jihadis. A Jamaat spokesman says that the police have admitted they made a mistake, but have not apologized in writing.

Today Is "See You At The Pole" Day

Today is the annual See You At the Pole Day. Begun in 1990, the event involves a prayer rally at the school flag pole, usually before school begins in the morning. (Background.) The student-sponsored events, coordinated by a Texas-based organization and supported by some 100 Christian churches and organizations, have spread to 20 countries. Organizers encourage students to pray for their friends, families, teachers, school, and nation.

EEOC Sues Over Company's Refusal To Accommodate Religious Objection To Biometric Hand Scanning

The EEOC filed a lawsuit in a West Virginia federal district court on Monday against Consol Energy and Consolidation Coal Co. charging that they had violated Title VII by failing to accommodate a Christian employee's religious objections to biometric hand scanning to track his time and attendance. According to the Clarksburg Exponent Telegram, Beverly R. Butcher Jr., a laborer at the companies' mining operation, believed that hand scanning involved the Mark of the Beast.  The company, relying on the scanner vendor's interpretation of the Mark of the Beast in Book of Revelation 13:16, offered to allow Butcher to scan his left hand (since the Biblical verse refers only to the right hand). However Bucher wanted instead to either keep written records of his hours or check in and out with a supervisor. The company rejected this, which allegedly led to Bucher retiring earlier than he otherwise would have done.

Court Says Spousal Privilege Does Not Apply To Couple In Civil Union

In Commonwealth of Kentucky v. Clary, (KY Cir. Ct., Sept. 23, 2013), a Kentucky trial court refused to apply the spousal privilege of Kentucky Rule of Evidence 504 to a couple who are parties to a Vermont civil union.  Under the rule, a spouse may refuse to testify, or prevent his or her spouse from testifying, about events occurring after the date of their marriage.  According to the Louisville Courier Journal, prosecutors trying Bobi Jo Clary for murder claim that her partner Geneva Case heard her admit to killing the victim, and saw Clary clean blood out of the victim's van and abandon it. The court explained that it need not decide whether the privilege must be applied to same-sex married couples since here the parties were only in a civil union.  Even though Vermont now recognizes same-sex marriage, the parties to a civil union in Vermont are required to take specified steps to convert the civil union to a marriage even for Vermont to recognize it. [Thanks to Thomas Rutledge for the lead.]

State Appeals Court Resolves Serbian Orthodox Church Dispute

Puskar v. Krco, (IL App., Sept. 23, 2013), involves a complicated dispute over whether or not the Serbian Orthodox Metropolitanante of New Gracanica Diocese of the United States and Canada reunited with the Serbian Orthodox Church based in Belgrade, Serbia.  In 1992, the two organizations took steps to unite by adopting Transitional Regulations.  Bishop Longin, appointed by the Belgrade church, announced in 2009 that a reorganization had occurred and that there is no longer a split between the Metropolitanante Diocese and the Belgrade Church.  Plaintiffs sued for a declaratory judgment and injunction, claiming that the Assembly of the Metropolitanante Diocese never authorized a reorganization and retained self-governing authority. The trial court dismissed on the basis of the ecclesiastical abstention doctrine, concluding that the focus of the suit was on the Bishop's duties and whether he had violated them.

In a 2-1 decision, a majority of the Illinois Court of Appeals disagreed, holding that plaintiffs merely sought an interpretation of the contractual relationship between the two churches, and in particular whether the Transitional Regulations are still in effect. The majority concluded that the Transitional Regulations expired according to their terms in 1995, and so the Metroplitanante Diocese is no longer governed by them.  Judge Spence dissenting argued that the case is primarily a dispute over church polity which the court is barred from deciding under the ecclesiastical abstention doctrine.

Drug Paraphernalia Charges Burden Rastafarian Teen's Free Exercise Rights

In In the Matter of the Welfare of: J.J.M.A., (MN App., Sept. 23, 2013), a Minnesota appellate court held that a 15-year old Rastafarian boy's free exercise rights protected by the Minnesota Constitution were violated when he was adjudicated delinquent for possessing drug paraphernalia. The boy claimed that his religion requires him to carry his cannabis pipe.  The court found that the drug paraphernalia statute as applied burdens the boy's sincerely held religious beliefs, and the state failed to show that the statute as applied is the least restrictive means to accomplish a compelling state interest. [Thanks to Volokh Conspiracy for the lead.] 

Russian Court In Controversial Decision Bans Salafist Translation of Qur'an

In Russia last week, the Novorossiysk Oktyabrsky District Court ruled that a translation of the Qur'an into Russian by Azerbaijani philosopher Elmir Kuliyev should be banned under the federal law barring extremist materials, and that copies of it should be destroyed. The translation was published in Saudi Arabia in 2002.  According to Interfax and AP, Ravil Gainutdin, head of the Council of Muftis of Russia, strongly criticized the court's ruling in an open letter to President Vladimir Putin released Monday. He said the ruling violates freedom of religion protections in the Russian Constitution and international law, and called for the case to be retried with experts on Islam as witnesses. However, Farid Salman, the head of the Ulema Council of the All-Russian Muslim Board, has a different opinion. He agreed with the court's ruling, saying that Kuliyev's views reflect "the Salafi school, not the sect of Islam that is traditionally practiced by Russia's Muslims."

UPDATE: Forum 18 has more details on the decision and the mixed reaction to it among Russian Muslims.

New Google Website Simplifies Comparative Constitutional Analysis

Google announced yesterday that it has launched Constitute, a new website, created by the Comparative Constitutions Project that digitizes and makes searchable the world's 160 national constitutions.  Particularly relevant to Religion Clause readers, by browsing and clicking Constitute's topics menu, a user can easily pull up the relevant texts from the constitutions of 150 countries on freedom of religion. Mashable has more on the new website.

Ceremonial Renaming of Street Leads to Unusual Lawsuit Claiming Religious Liberty Violation

In August, in what the local press called "street naming season in Patterson," the Patterson, New Jersey City Council renamed a section of Van Houten Street on which the Jalalabad Jam-E-Masjid mosque is located as Alhaj Forman Ali Street to honor a local Muslim who was said to have played an instrumental role in the founding of the Islamic Foundation of New Jersey that built the mosque.  The seemingly innocuous resolution however has become extremely controversial in the Bangladeshi Muslim community of Patterson.

 According to yesterday's Patterson Press, leaders of the mosque say that they were not consulted on the ceremonial resolution, and that the renaming violates their religious beliefs.  They say that it is a fundamental principle of Islam that the mosque belongs to the entire community, and no one person or family may be honored above others in connection with their contribution to the mosque. They say that many members threaten to leave the mosque because it has been tainted as a place of worship by the naming of the street in front of it in honor of one person. They also claim that Councilman Mohammed Aktraruzzman who proposed the ceremonial resolution did so to repay his political supporters, and that the resolution exaggerates Ali's contributions to the Muslim community.  City Council is scheduled to vote today on whether to rescind the August resolution.  Ahead of that vote, on Sunday, mosque leaders filed a federal lawsuit claiming that the actions of city officials violated their free exercise rights.

Abercrombie Settles Two EEOC Lawsuits; Will Modify "Look Policy" To Accommodate Hijab

Clothing retailer Abercrombie & Fitch has settled two lawsuits brought by the EEOC challenging the company's "look policy" under which Abercrombie refused to permit Muslim employees to wear a hijab (head scarf).  AP and Religion News Service yesterday reported that the company will now permit employees to wear the hijab.  In the settlements, Abercrombie also will pay $48,000 in damages to Hani Khan who was fired when a new district manager visited the store and saw her head scarf. (See prior posting.)  It will pay $23,000 to Halla Banafa who was not hired after she wore a hijab to her job interview. (See prior posting.)

Egyptian Court Outlaws Muslim Brotherhood; Leaders Arrested; Assets Frozen

AP reports that in Egypt yesterday, the Cairo Court for Urgent Matters ordered the Muslim Brotherhood banned and its assets confiscated. The ruling covers the Brotherhood itself, as well as its affiliates and any institution receiving financial support from it.  The court ordered confiscation of all the organization's assets, and the creation of an independent committee to manage the group's funds until further orders from the court. In ordering the ban, the court said that the Brotherhood had used Islam "as a cover to activities that violate Islam and its rulings."  If the ban is upheld on appeal, authorities will be able to close down the Brotherhood's network of businesses, schools, hospitals and charities. For 85 years prior to 2011, the Brotherhood had been outlawed and operated under cover in Egypt. Separately, AP reports that on Tuesday authorities arrested senior leaders of the Brotherhood and the Cairo Criminal Court froze the assets of 14 Brotherhood leaders, including Mohammed Badie.

Ontario Legislature Rejects Quebec Limits On Religious Dress

As previously reported, last month Quebec's ruling Party Quebecois announced it would introduce a Charter of Quebec Values which, among other things, will ban public employees from wearing religious head coverings or visible crucifixes in the workplace. Last Thursday, as reported by JTA, the Legislative Assembly of Ontario unanimously passed a resolution (full text at pg. 3) disagreeing with Quebec's move.  The resolution provides:

That, in the opinion of this House, the Government of Ontario should oppose any legislation that would restrict or prohibit people's freedom of expression and religion in public places and affirm that Ontario greatly values our diverse population and the social, cultural and economic contributions they make to help our society thrive.

Recent Articles of Interest

From SSRN:

• Paul Horwitz, Rethinking the Law, Not Abandoning It: A Comment on 'Overlapping Jurisdictions', (4 Faulkner Law Review 351 (2013)).
• Jordan J. Ballor, The Ecumenical Challenge of Catholicity, (Journal of Christian Legal Thought 3, No. 2 (Fall 2013)).
• Caroline Mala Corbin, Corporate Religious Liberty, (September 18, 2013).
• Frederick Mark Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion,(September 19, 2013).
• Dhrubajyoti Bhattacharya, At the Intersection of Law, Human Rights, and Religion, (Global Health Disputes and Disparities (Routledge, London: 2012)).
• Helen J. Knowles, Taking Justice Kennedy Seriously: Why Windsor Was Decided 'Quite Apart from Principles of Federalism', (September 1, 2013).
• Julien Mailland, The Blues Brothers and the American Constitutional Protection of Hate Speech: Teaching the Meaning of the First Amendment to Foreign Audiences, (Michigan State International Law Review, Vol. 21, No. 2, p. 451, 2013).
• Douglas NeJaime, Windsor's Right to Marry, (123 Yale Law Journal Online 219 (2013)).
• Jade Wong & Andreas Ortmann, Do Donors Care about the Price of Giving? A Review of the Evidence, with some Theory to Organize It, (UNSW Australian School of Business Research Paper No. 2013-22 (2013)). 

From SSRN-- European and Islamic Law:

• Rafael Palomino, Manual Breve de Derecho Eclesiástico del Estado (Spanish Law and Religion in a Nutshell), (January 9, 2013).
• Casey Jo Cooper, From the Watch Tower to the Acropolis: The Search for a Consistent Religious Freedom Standard in an Inconsistent World, (Emory International Law Review, Vol. 28, No. 1, 2014, Forthcoming).
• Monica Lugato, National Policy Towards Religious Associations within the Framework of European Law, (Il Diritto dell'Unione Europea, 3/2013, Forthcoming).
• Tobias Lock, An Additional Protective Layer: The Case of Religious Discrimination in the United Kingdom and Germany, (Edinburgh School of Law Research Paper No. 2013/32 (2013)).
• Hamid Harasani, The Role of Ijtihād in Progressing Islamic Law in Modern Times, (10 US-China Law Review 361).

From SmartCILP:

• Robert A. Destro,"You Have the Right to Remain Silent": Does the U.S. Constitution Require Public Affirmation of Same-Sex Marriage?, 27 BYU Journal of Public Law 397-440 (2013).
• Pascale Fournier & Pascal McDougall, False Jurisdictions? A Revisionist Take On Customary (Religious) Law in Germany, 48 Texas International Law Journal 435-463 (2013).

Rhode Island High School Gets New Secular Mural

In 2012, a Rhode Island federal district court in a high profile Establishment Clause case ordered Cranston (RI) High School to take down a prayer mural that had hung in the school's auditorium for 50 years.  (See prior posting.) Last week, to celebrate its 50th reunion, the Class of 1963 that had presented the original mural to the school replaced it with a new one that eliminates all religious references.  According to Friday's Providence Journal, the new mural contains seven lines to guide students, in the form of an acrostic with the first letter of each line spelling "Falcons". The Class also presented a new banner containing the school creed to replace the old one that had also hung in the auditorium.

UPDATE: The Cranston Patch (9/23) reports that there has been a delay in hanging the new mural because of typos discovered in it. Also it needs to be confirmed that they comply with the fire code.

Recent Prisoner Free Exercise Cases

In Davis v. Abercrombie, 2013 U.S. Dist. LEXIS 131525 (D HI, Sept. 13, 2013), a Hawaii federal district court dismissed the governor of Hawaii as a defendant in a suit complaining that plaintiffs were unable to observe their Native Hawaiian religion at two private prisons in Arizona in which Hawaii houses inmates. The court also dismissed as to all defendants a claim under the Hawaii constitution.

In Chernetsky v. Nevada, 2013 U.S. Dist. LEXIS 132804 (D NV, Sept. 17, 2013), a Nevada federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 132806, Aug. 14, 2013) and refused to permit a Wiccan inmate to file an amended complaint asserting constitutional claims that were previously abandoned on appeal.

In Muhammad v. Jenkins, 2013 U.S. Dist. LEXIS 132913 (SD NY, Sept. 13, 2013), a New York federal district court denied qualified immunity in a suit against a parole officer who allegedly for retaliatory reasons barred a Nation of Islam parolee from attending the mosque of his choice and refused to extend his curfew so he could attend evening classes there.  Claims against the parole board chairwoman were dismissed.

In Mendez v. Amato, 2013 U.S. Dist. LEXIS 132346 (ND NY, Sept. 17, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 132909, June 18, 2013) and dismissed a general claim by a former jail inmate that involuntary protective custody inmates were precluded from practicing religion when they were isolated from general population religious services.

In Penwell v. Holtgeerts, 2013 U.S. Dist. LEXIS 133011 (WD WA, Sept. 16, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 133014, July 9, 2013), and dismissed a Christian inmate's complaint that regulations barring him from wearing his wedding rings in jail violated his free exercise and equal protection rights.

In Scott v. Ellis, 2013 U.S. Dist. LEXIS 133319 (D NJ, Sept. 18, 2013), a New Jersey federal district court dismissed an inmate's complaint that the warden ordered he not be allowed to participate in the Eid prayer.

In Walters v. Santa Clara Department of Corrections, 2013 U.S. Dist. LEXIS 134386 (ND CA, Sept. 19, 2013), a California federal district court dismissed a Muslim inmate's RLUIPA and free exercise complaints over the adequacy of his Halal diet and over a threat to end his Halal diet if he continued to trade food.

Mortgage Company Wins Preliminary Injunction In Contraceptive Coverage Challenge

In Armstrong v. Sebelius, (D CO, Sept. 17, 2013), a Colorado federal district court granted a preliminary injunction to Cherry Creek Mortgage Co. and its Evangelical Christian owners who claim their religious liberty is infringed by the Affordable Care Act contraceptive coverage mandate. Earlier this month, the 10th Circuit (full text of Sept. 5 opinion), citing its Hobby Lobby decision, reversed an earlier district court denial of a preliminary injunction and remanded the case to the district court. An unusual feature of this case is the fact that challengers only realized belatedly that their existing health insurance policy covered the contraceptives to which they object. (See prior posting.) In granting the preliminary injunction, the court said:

Here, the status quo is that Cherry Creek Mortgage has been and still is providing the coverage to which plaintiffs object. That being so, the preliminary injunction does not preserve the status quo, which is the stuff of most injunctions, but instead alters it. The answer is that the status quo would be Cherry Creek’s refusing to provide coverage for what they classify as abortifacients had they not unwittingly begun to provide the coverage and then run into an insurmountable roadblock when they directed their insurer to terminate the coverage.

Labor Department Recognizes Same-Sex Marriages Under ERISA

On Wednesday, the U.S. Department of Labor issued Technical Release No. 2013-04  providing guidance on applying the Supreme Court's Windsor decision to regulations under ERISA and the Internal Revenue Code relating to employee benefit plans. (News release.) The Technical Release provides in part:

the term "spouse" will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term "marriage" will be read to include a same-sex marriage that is legally recognized as a marriage under any state law....

The terms "spouse" and "marriage," however, do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union, regardless of whether the individuals who are in these relationships have the same rights and responsibilities as those individuals who are married under state law. The foregoing sentence applies to individuals who are in these relationships with an individual of the opposite sex or same sex.

[Thanks to Alliance Alert for the lead.]

Christian Universities Sue Challenging Contraceptive Coverage Mandate

Yet another lawsuit challenging the Affordable Care Act contraceptive coverage mandate has been filed, this time by four Christian universities-- Southern Nazarene, Oklahoma Wesleyan,  Oklahoma Baptist, and Mid-America Christian. The complaint (full text) in Southern Nazarene University v. Sebelius, (WD OK, filed 9/20/2013) contends that the final regulations (see prior posting) creating a compromise for religious non-profit organizations that object to furnishing contraceptive coverage is insufficient. The lawsuit contends that the final version of the regulations:

still conscripts the Universities into the government’s scheme, forcing them to obtain an insurer or third-party claims administrator and submit a form that specifically causes that insurer or third-party administrator to arrange payment for the objectionable drugs, so that such coverage will apply to the Universities’ own employees as a direct consequence of their employment with the Universities and of their participation in the health insurance benefits the Universities provide them.

Alliance Defending Freedom issued a press release yesterday announcing the filing of the lawsuit.