Endorsing Agency For Two Conservative Chaplains Sues VA Over Pastoral Education Program Clashes

Fox News and Breibart News report  on a federal lawsuit filed last week by the endorsing agency for two military chaplains who were forced out of a Clinical Pastoral Education program run by the Department of Veterans Affairs in San Diego. The program is required in order to work as a chaplain in a VA hospital. The two chaplains, who were endorsed by the Conservative Baptist Association of America, continually clashed in class with the religiously liberal instructor, Nancy Dietsch.  The complaint (full text) in Conservative Baptist Association of America, Inc. v. Shenseki, (D DC, filed 11/8/2013), sets out examples of in-class exchanges between Dietsch and chaplains Steven Firtko and Dan Klender, among which are:

... Dietsch informed the class she believes God could be a man or woman. Chaplain Firtko recited the Lord’s Prayer, stating “Our Father who Art in Heaven.” In response, Ms. Dietsch angrily pounded her fist on the table and shouted: “Do not quote Scripture in this class!”....

When Chaplain Klender responded to a question during a group discussion regarding the Sandy Hook school shooting in Newtown CT, by stating he would tell a parent whose child was a victim by stating that “there is evil in the world,” Ms. Dietsch impugned his core faith beliefs stating they would not work in a clinical setting. In the presence of the other students she said: “You don’t actually believe that do you?”

Dietsch also told the class that The VA and she "do not allow Chaplains to pray 'in Jesus' name' in public ceremonies."

The lawsuit contends that the program's intolerance of mainstream Judeo-Christian beliefs violates RFRA, the 1st Amendment's Free Exercise and Free Speech clauses. It also contends that discrimination against Conservative Baptist Association chaplains was arbitrary and capricious.

In a statement to news media, the VA said that the two chaplains were "bullying other classmates and refusing to honor other faith groups." [Corrected to make clear that plaintiff is the endorsing agency, not the chaplains. Thanks to God and Country blog.]

Supreme Court Review Sought By Photographer Who Refused Employment For Same-Sex Wedding

A petition for certiorari (full text) was filed Friday with the U.S. Supreme Court in Elane Photography, LLC v. Willock. In the case, the New Mexico Supreme Court held that the state's Human Rights Act requires a commercial photography business to serve same-sex couples on the same basis as opposite-sex couples, and that the 1st Amendment does not require an exception for creative or expressive professions. (See prior posting.) The cert. petition frames the Question Presented as:

Whether applying a state public-accommodations statute to require a photographer to create expressive images and picture-books conveying messages that conflict with her religious beliefs violates the First Amendment’s ban on compelled speech.

ADF issued a press release announcing the filing of the petition.

Recent Articles of Interest

From SSRN:

• Arshad Zaman, Maulana Sayyid Sulaiman Nadvi on Law, Politics, and Government, in Islam, (November 1, 2013).
• Scott D. Gerber, Law and the Lively Experiment in Colonial Rhode Island, (2 British Journal of American Legal Studies 453 (2013)).
• Zachary R. Calo, Review of 'The Tragedy of Religious Freedom' by Marc O. Degirolami, (Religion and Human Rights 8 (2013)).
• Nora Abdul Hak & Hanna Ambaras Khan, The Application of Sulh in Resolving Community Disputes, (Paper presentation at in 1st World Congress on Integration and Islamicisation of Acquired Human Knowledge (FWCII-2013)).
• Susannah William Pollvogt, United States v. Windsor and the Crisis in Equal Protection Jurisprudence, (November 6, 2013).
• David B. Cruz, 'Amorphous Federalism' and the Supreme Court's Marriage Cases, (Loyola Law Review, Supreme Court Issue, Forthcoming).

From SmartCILP:

• Shahla Haeri, No End in Sight: Politics, Paradox, and Gender Policies in Iran, 93 Boston University Law Review 1049-1062 (2013).
• Pnina Lahav, Israel's Rosit the Riveter: Between Secular Law and Jewish Law, 93 Boston University Law Review 1063-1083 (2013).

The Episcopal Church Sues Break-Away Illinois Diocese Over Property

The Episcopal Diocese of Chicago and The Episcopal Church last week filed a state court lawsuit claiming that property held by or for parishes and missions of the break-away Anglican Diocese of Quincy may only be used for the benefit of The Episcopal Church. (Press release). The complaint (full text) in The Episcopal Church v. Morales, (IL Cir Ct., filed 11/6/2013), seeks a declaratory judgment that the individual defendants do not hold any offices in the Episcopal Diocese of Quincy and that the parishes and missions are controlled by clergy and officers appointed or elected by The Episcopal Church.  In a case decided earlier this year, Diocese of Quincy v. The Episcopal Church, (IL Cir. Ct., Sept. 9, 2013), a different state trial court held that the break-away Anglican Diocese holds title to the bank account and administrative offices of the Diocese. The court held that the Dennis Canon on which The Episcopal Church in part relied relates to parish or mission properties and not to properties titled in the name of the Diocese. Anglican Curmudgeon blog discusses the background and strongly criticizes the Diocese of Chicago for the suit filed last week.

Court Rejects Challenges To New Jersey Ban On Conversion Therapy for Minors

In King v. Christie, (D NJ, Nov. 8, 2013), a New Jersey federal district court dismissed a challenge to the state's ban on sexual-orientation change therapy for minors.  It held that psychotherapy carried out through talk therapy is not speech under the 1st Amendment.  Instead it is conduct.  In so holding, the court in part pointed to the 9th Circuit's recent decision upholding a similar California statute. The court went on to reject claims that the New Jersey statute is overbroad and vague.  Finally the court rejected the claim that the New Jersey statute violates the Free Exercise clause by preventing mental health providers from exercising their sincerely held religious beliefs that changing same-sex attraction or behavior is possible. The court concluded that the statute is a neutral law of general applicability. The Newark Star Ledger reports on the decision.

Recent Prisoner Free Exercise Cases

In Whitaker v. Whitener, 2013 U.S. Dist. LEXIS 157692 (WD NC, Nov. 1, 2013), a North Carolina federal district court dismissed without prejudice a complaint by a Jewish prisoner that serving his kosher meals cold, or late, or delivering them along with non-kosher meals violates his free exercise rights.

In Barton v. Snaza, 2013 U.S. Dist. LEXIS 157934 (WD WA, Nov. 4,2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 157937, Oct. 4, 2013) and dismissed without prejudice prior to service for failure to state a claim an inmate's complaint that  two of his personal Asatru/Odinist books were confiscated by an unidentified person, preventing him from performing a ceremonial rite in his cell for three different holidays.

In Arrendondo v. Brooks, 2013 U.S. Dist. LEXIS 158406 (D NV, Nov. 5, 2013), a Nevada federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 158403, Sept. 23, 2013) and dismissed an inmate's complaint that several of his religious books were confiscated as contraband because he did not have his name written in them.

In White v. Van Leer, 2013 U.S. Dist. LEXIS 159186 (ED CA, Nov. 5, 2013), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that he was denied kosher meals in place of the vegetarian substitute meals served at breakfast and lunch to those receiving Halal diets.

In Medina v. Snyder, 2013 U.S. Dist. LEXIS 159225 (ED CA, Nov 5, 2013), a California federal magistrate judge dismissed,with leave to amend, an inmate's complaint that he was denied a kosher meal on three separate occasions.

In George v. City of New York, 2013 U.S. Dist. LEXIS 159434 (SD NY, Nov. 6, 2013), a New York federal district court dismissed a Muslim inmate's claim that a strip search of him violated his free exercise rights. His request to be searched in private was refused.

In West v. Grams, 2013 U.S. Dist. LEXIS 160003 (WD WI, Nov. 8, 2013), a Wisconsin federal magistrate judge dismissed complaints by a Muslim inmate that Muslim prayer services were not permitted to be held when a volunteer leader from outside the prison was unavailable. The court also dismissed his claim that Ramadan meals were served as late as possible in retaliation for his arguing about the proper time to serve these meals.

In McKenzie v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 159981 (WD MI, Nov. 8, 2013), a Michigan federal district court dismissed a suit brought by several Jewish prisoners complaining about a change in Department of Corrections policy that eliminated separate kosher meals and instead made vegan meals that meet kosher and halal standards available for religious diets.

In Arafat v. U.S. Department of Justice, 2013 U.S. Dist. LEXIS 160075 (D MN, Nov. 8, 2013), a Muslim inmate complained of a lack of a halal-certified diet at the county jail in which he was held while his federal criminal trial was under way.  A Minnesota federal district court dismissed most of his claims but allowed him to proceed with his claim for injunctive relief, subject to its being dismissed as moot as soon as his sentencing hearing was completed and he was transferred back to federal prison where a halal diet was available. UPDATE: The magistrate's recommendation in the case is at Wetsch v. U.S. Department of Justice, 2013 U.S. Dist. LEXIS 160407 (Aug.  22, 2013).

Federal Lawsuit Challenges Idaho's Refusal To Permit or Recognize Same-Sex Marriage

A suit was filed Friday in an Idaho federal district court challenging the constitutionality of Idaho's laws that exclude same-sex couples from marrying in the state, and refuse to recognize marriages of same-sex couples entered into lawfully elsewhere.  The complaint (full text) in Latta v. Otter, (D ID, filed 11/8/2013), claims that Idaho Const. art. III, § 28 and Idaho Code §§ 32-201 and 32-209 violate the due process and equal protection clauses of the 14th Amendment. The National Center for Lesbian Rights issued a press release on the case. [Thanks to Alliance Alert for the lead.]

7th Circuit In 2-1 Decision Grants Preliminary Injunction To For-Profit Corporations and Their Owners In Contraceptive Mandate Challenge

In Korte v. Sebelius, (7th Cir., Nov. 8, 2013), the U.S. 7th Circuit Court of Appeals, in a 2-1 decision in a consolidated appeal of suits by two unrelated small businesses and their Catholic owners, held that a preliminary injunction should be granted barring enforcement of the Affordable Care Act contraceptive coverage mandate on religious freedom grounds.  The companies involved are Korte & Luitjohan Contractors, Inc., an Illinois construction company, and Grote Industries, Inc., an Indiana manufacturer of vehicle safety systems.

The majority, in a 64-page opinion, held that for-profit corporations are "persons" whose religious exercise is protected by the Religious Freedom Restoration Act, saying:

It’s common ground that nonprofit religious corporations exercise religion in the sense that their activities are religiously motivated. So unless there is something disabling about mixing profit-seeking and religious practice, it follows that a faith-based, for-profit corporation can claim free-exercise protection to the extent that an aspect of its conduct is religiously motivated.

The majority then concluded that the mandate imposes a substantial burden on the religious exercise of both the corporations and their individual owners and managers that is not justified by a compelling governmental interest and is not achieved by the least restrictive means.

Judge Rovner wrote a very interesting 89-page dissent. Early in her opinion, she sets out several hypotheticals that follow from the majority's decision, involving employers who object on religious grounds to paying for coverage for other kinds of medical treatment for their employees.  Later in her opinion, she discusses at length what she describes as "significant logical difficulties posed by attributing religious rights to secular corporations."  She says in part:

First, to the extent that a corporation’s religious principles and identity derive from its owners, what if the owners have diverse beliefs, diverse degrees of devotion, and diverse notions as to whether and how the corporation ought to reflect their religious beliefs?...

Second, suppose that the company’s ownership changes. What happens then to the beliefs we have attributed to the corporation based on its ownership?....

Third, are the religious beliefs of corporate owners solely determinative of the corporation’s religious principles? Suppose ... that a corporation’s owners have entirely entrusted the management of the corporation to its longtime CEO.... Are her beliefs attributable to the corporation?  Or suppose ... the focus of the corporation is on serving members of a particular religion-- selling kosher or halal food products, for example....  Can the corporation be said to hold the religious beliefs of its target market, even if its owners and managers do not?....

[I]f a corporation has free exercise rights because the Dictionary Act suggests it is among the "persons" to which RFRA grants the right to make such a claim... then why does a corporation of large, diverse, or even public ownership not have free exercise rights also? And how would the beliefs of a public corporation be determined—by a vote at the annual shareholders’ meeting, for example?

The 7th Circuit had previously granted an injunction pending appeal in the case. (See prior posting.)

EU Court of Justice Rules On When Homosexuals Qualify For Refugee Status

On Thursday, the Court of Justice of the European Union issued a preliminary ruling interpreting Council Directive 2004/83/EC on minimum standards for third-country nationals to qualify as refugees. The Directive defines a refugee, in part as a person who has a "well-founded fear of being persecuted for reasons of ... membership of a particular social group...." In X, Y, Z v. Minister voor Immigratie en Asiel, (EU Ct. Justice, Nov. 7, 2013), the court held that:

the existence of criminal laws ... which specifically target homosexuals, supports the finding that those persons must be regarded as forming a particular social group.

... the criminalisation of homosexual acts per se does not constitute an act of persecution. However, a term of imprisonment ... which is actually applied ... must be regarded as being a punishment which is disproportionate or discriminatory and thus constitutes an act of persecution.

.... When assessing an application for refugee status, the competent authorities cannot reasonably expect, in order to avoid the risk of persecution, the applicant for asylum to conceal his homosexuality in his country of origin or to exercise reserve in the expression of his sexual orientation.

The Court also issued a press release on the decision. So did ORAM (the advocacy group for LGBTI refugees). It discusses at length the problems that European officials will face in accurately assessing the credibility of asylum claims based on sexual orientation. The Los Angeles Times reports on the decision, focusing on the persecution of gays and lesbians in Africa-- the home continent of the 3 refugees who were parties to the case decided by the court.

Tonight Is 75th Kristallnacht Anniversary; New Data On Antisemitism In Europe and U.S. Released

A statement (full text) issued yesterday by President Obama points out that tonight marks the 75th anniversary of Kristallnacht-- the violent Nazi-party inspired anti-Jewish pogroms carried out in 1938 in Germany and German -annexed territory in Austria and Czechoslovakia. Kristallnacht marked a turning point that led to ever-increasing anti-Jewish actions by the Nazi regime. Yesterday, the European Union Agency for Fundamental Rights released a new report titled Discrimination and Hate Crime Against Jews in EU Member States: Experiences and Perceptions of Antisemitism. Several related publications were also released.This is the first report to collect comparable current data across 8 EU countries-- Belgium, France, Germany, Hungary, Italy, Latvia, Sweden and the United Kingdom.  These countries are home to 90% of EU's Jewish population. Among the key findings were:

66% of respondents consider antisemitism to be a major problem in their countries, while 76% said the situation had become more acute over the last five years.

21% of all respondents have experienced an antisemitic incident or incidents involving verbal insult, harassment or a physical attack in the 12 months preceding the survey. 2% of respondents had been victims of an antisemitic physical attack over the previous year.

In related developments, the Jewish Museum Berlin hosted a conference last night and today titled Antisemitism in Europe Today: the Phenomena, the Conflicts. A Haaretz op-ed criticized organizers for scheduling the conference on the Jewish Sabbath, thereby effectively precluding participation by observant Jews.  And, according to JTA, earlier this week a German hotel, the Kristall Sauna Wellnesspark in Bad Klosterlausnitz, in the former eastern German state of Thuringen, apologized for the ad it had run promoting a "long, romantic Kristall-Nacht" on November 9.

In the United States, the ADL on Oct. 28 released its 2013 Survey About Attitudes Toward Jews In America. It concluded that 12% of Americans have deeply entrenched anti-Semitic attitudes, a 3% decline from the last poll in 2011.  Meanwhile, the New York Times reported earlier this week on the extensive anti-Semitic harassment of students in the New York State Pine Bush Central School District.

Jury Rejects Religious Harassment Charge By Former School Library Employee

The Roanoke Times reports that a Virginia federal court jury yesterday found for the defendant in Scott v. Montgomery County School Board, a religious discrimination and retaliation suit. (See prior related posting.) In the suit, Judith Scott, a fired school library assistant claimed that her supervisor Nina Donohoe  pressured her for more than a decade to join Christian prayer meetings and Bible study sessions, and that when she refused she was harassed and finally dismissed. Donohoe claimed that her differences with Scott were work-related. After the jurors returned their verdict, Judge James Turk told them: "I think that was the only verdict you could return in this case. It was the principals who recommended [Scott's] contract not be renewed. I think we had two nice ladies in this case who just couldn’t get along. One of them had to go."

Minnesota High Court Upholds Clergy Sexual Conduct Statute Against Establishment Clause Challenges

In State of Minnesota v. Wenthe, (MN Sup. Ct., Nov. 6, 2013), the Minnesota Supreme Court, in a 4-1 decision, upheld the state's clergy-sexual-conduct statute against both facial and an as-applied Establishment Clause challenges.  The court held that Minn. Stat. § 609.344 which criminalizes sexual penetration by a member of the clergy where the victim is receiving religious or spiritual advice does not violate the Establishment Clause merely because it directly targets clergy or because it requires an inquiry into whether the victim was seeking religious or spiritual advice. The court also concluded that as applied in this case, the evidence presented did not raise an excessive entanglement concern concern. Defendant, a Roman Catholic priest who was charged with having sexual relations with a woman he was counseling, was not likely to be convicted by the jury merely because he violated Church doctrine. AP reports on the decision.

Judge's Religious Comments Lead To Remand For Resentencing

In Tores v. State of Florida, (FL App., Nov.6, 2013), a Florida state appellate court reversed a 30-year sentence imposed on defendant for sexual battery and remanded for sentencing by a different judge because of religious comments made in imposing the original sentence.  In imposing the maximum sentence (when the minimum Guidelines sentence was 9 years, 4 months), the sentencing judge condemned defendant for his consensual dating relationship with the victim while defendant was married to someone else, and then said:

Just because your wife is in another country doesn’t mean you ought to be going out with other women. You’re a good Catholic fellow as I am. That’s not the way Catholic people - - that’s not the way anybody with morals should do anything.

The Florida Times-Union reports on the decision.

European Court Says Greek Law Limiting Civil Unions To Heterosexual Couples Violates ECHR

In Vallianatos and Others v. Greece, (ECHR, Nov. 7, 2013), the European Court of Human Rights (Grand Chamber) held, by a vote of 16-1, that a Greek civil union law which is limited to heterosexual couples violates The European Convention on Human Rights. The court concluded that the law is inconsistent with Article 8, violating the right to respect for private and family life of same-sex couples, and amounts to unjustified discrimination between different-sex and same-sex couples in violation of Article 14. The Court issued a press release summarizing the decision.  [Thanks to Paul de Mello, Jr. for the lead.]

EEOC Complaint Filed By Muslims Fired For Taking Unauthorized Prayer Break

As reported by the Cincinnati Enquirer, the Cincinnati (OH) chapter of the Council on American-Islamic Relations yesterday filed a complaint with the EEOC on behalf of 24 former Somali Muslim employees of the DHL Global Mail facility in Hebron, Kentucky. According to CAIR's press release, the company eliminated the flexible evening break time that the employees had been using for evening (Maghrib) prayers. The company's new supervisor fired the employees when they took their break to pray at an earlier time than authorized.

Former Faculty Members' Suit Against Religious College Dismissed On Establishment Clause Grounds

In Winberry v. Louisiana College, (LA App., Nov. 6, 2013), four former faculty members of of a Baptist liberal arts college sued claiming defamation, violation of academic freedom and violation of a settlement of a prior lawsuit. All four taught a required religious class, and the college claimed that they were teaching errant views.  The Louisiana appellate court affirmed the trial court's holding that the ministerial exception does not apply because Louisiana College is not a church. However it also affirmed the trial court's dismissal of the suit on Establishment Clause grounds;

The trial court was correct in holding that the dispute between Plaintiffs and Defendants centers on the nature of Baptist theology and church governance over how theology is taught at Louisiana College and would, thus, require the court to impermissibly entangle itself in deciding ecclesiastical matters.

Senate Passes ENDA; Fate In House Uncertain

As reported by the Huffington Post, the U.S. Senate yesterday passed S.815, the Employment Non-Discrimination Act by a vote of 64-32. The bill prohibits employment discrimination on the basis of sexual orientation or gender identity.  The version passed is that reflected in Senate Amendment 2012 (full text). The vote comes after attempts since 1994 to pass the legislation. The bill's fate in the House though is uncertain, with aides to the House Speaker saying it is unlikely to come up for a vote.  As passed by the Senate, the bill, Sec. 6(a), contains a familiar exemption for religious employers:

This Act shall not apply to a corporation, association, educational institution or institution of learning, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Act of 1964 ... pursuant to section 702(a) or 703(e)(2) of such Act.

Section 702(a) exempts any" religious corporation, association, educational institution, or society.... " Section 703(e)(2) exempts any school, college, university, or other educational institution or institution of learning [which] is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion."

At the last minute, the Senate also added a provision to the bill (Sec. 6(b)) to protect religious employers from adverse governmental action in connection with exercise of the exemption:

A religious employer's exemption under this section shall not result in any action by a Federal agency, or any State or local agency that receives Federal funding or financial assistance, to penalize or withhold licenses, permits, certifications, accreditation, contracts, grants, guarantees, tax-exempt status, or any benefits or exemptions from that employer, or to prohibit the employer's participation in programs or activities sponsored by that Federal, State, or local agency. Nothing in this subsection shall be construed to invalidate any other Federal, State, or local law (including a regulation) that otherwise applies to a religious employer exempt under this section.

The Senate, by a vote of 43-55 rejected Senate Amendment 2013 which would have broadened the definition of exempt religious employers.

Reacting to the bill, the American Family Association complained:

ENDA would force religious business owners and workplaces such as Christian bookstores, religious publishing houses, pre-schools and religious television and radio stations to accept as normal any employee who has had a sex-change surgery, is considering a change, or just thinks they are the opposite sex of what they really are.

Michelle Obama Hosts White House Diwali Celebration

The White House reports that on Tuesday, First Lady Michelle Obama welcomed guests to the East Room of the White House for a Diwali celebration. Saying that the holiday had been celebrated at the White House every year since President Obama took office, the First Lady added:

When we say that we want to make the White House the “people’s house,” we mean all people. We mean that we want to honor and embrace all of the many cultures and faith traditions that make us who we are as Americans. And Diwali is very much one of those traditions.

Huffington Post has more excerpts from the Mrs. Obama's remarks. (See prior related posting.)

Britain Looking At Issuing Shariah-Compliant Bonds; London Stock Exchange Islamic Index

In a press release last week (Oct. 29), The Prime Minister's Office in Britain announced plans for a new Islamic index on the London Stock Exchange, as well as hopes for Britain to become the first country outside of the Islamic world to issue an Islamic bond.  In an Oct.29 speech (full text) to the World Islamic Economic Forum held in London, Prime Minister David Cameron said in part:

Already London is the biggest centre for Islamic finance outside the Islamic world.  But today our ambition is to go further still.  Because I don’t just want London to be a great capital of Islamic finance in the Western world.  I want London to stand alongside Dubai and Kuala Lumpur as one of the great capitals of Islamic finance anywhere in the world.

[Thanks to Alliance Alert for the lead]

Cert. Petition Filed By Corporations In D.C. Circuit Contraceptive Mandate Case

A petition for certiorari (full text) was filed yesterday in Gilardi v. U.S. Department of Health and Human Services, (filed 11/6/2013).  In the case, the D.C. Circuit Court of Appeals held that the Catholic owners of a for-profit small business were likely to succeed on the merits of a RFRA challenge to the Affordable Care Act contraceptive coverage mandate, but rejected the claims of the business corporations. (See prior posting.) The petition, filed on behalf of the corporations, urges the Court to find that secular business corporations can assert their own free exercise rights.  The American Center for Law & Justice issued a press release announcing the filing of the cert. petition.