Religion Clause

Tuesday, February 25, 2014

Temporary Injunction Issued Stopping North Carolina School Voucher Program

According to the Lincoln (NC) Times-News, after a hearing last Friday, a North Carolina trial court judge issued a temporary injunction barring the state (at least for the time being) from moving ahead with a lottery to choose families to receive school vouchers for use at private schools next year. The state has received over 4,700 applications for the 2,400 vouchers that would be awarded to income-eligible families. According to the Times-News report:

Friday’s arguments focused on what the state constitution allows and whether the legislature improperly took money away from the state’s public schools to give to private schools. Opponents of the bill have argued that vouchers would send money to schools that discriminate based on religion or disability.

One school that has come under fire is Raleigh Christian Academy, which requires its students and parents to sign a contract stating they are in 100 percent agreement with its fundamental doctrinal practices. Their school application states, “we are not a church school for those in cults, i.e. Mormons, Jehovah’s Witness, Christian Science, Unification Church, Zen Buddhism, Unitarianism, and United Pentecostal.”

(See prior related posting.)

Missouri Catholic Diocese Settles Two Abuse Lawsuits

Last week, the Catholic Diocese of Kansas City-St. Joseph settled two separate state court lawsuits stemming from the child pornography activities of priest Shawn Ratigan. AP reports that last Friday a court approved a settlement of $1.275 million in a suit brought by parents whose daughter was photographed in nude and semi-nude poses by Ratigan when the girl was 10 to 12 years old. A $525,000 settlement in a second suit was approved last Wednesday in a suit involving a girl who was photographed by Ratigan when the girl was 9 years old. In each of the suits, thejudge also entered a $500,000 default judgment against Ratigan who was sentenced to 50 years in prison last year. In 2012 Bishop Robert Finn was convicted of a misdemeanor for failing to authorities his suspicion of child abuse by Ratigan. Finn was sentenced to two years probation. (See prior posting.)

Monday, February 24, 2014

Arizona Legislature Passes RFRA Amendments To Allow Businesses To Refuse To Serve Gays On Religious Grounds

The Arizona legislature on Thursday passed and sent to the governor SB 1062 which amends the state's Religious Freedom Restoration Act to extend its coverage to the exercise of religion by corporations and other business organizations. The bill also provides that its protections may be asserted in lawsuits even if the government is not a party. (Background form Arizona Center for Policy.) The controversial bill is designed to permit businesses that oppose homosexuality or same-sex marriage on religious grounds to refuse to provide goods or services if it violates their religious beliefs. ABC News reports that Gov. Jan Brewer is still deciding whether or not to sign the bill. Some suggest that if the controversial bill becomes law, it could lead to boycotts in connection with the Super Bowl scheduled for Arizona next year. AP reports further on the legislation.

Professor Loses On Claim of Retaliation For Religious Speech Aimed At Students

In Payne v. University of South Mississippi, (SD MI, Feb. 21, 2014), a Mississippi federal district court held that the 1st Amendment does not preclude a faculty member at a public university being disciplined for religious speech made as part of his duties as a professor. According to the court:

A graduate student employed in a program administered by Plaintiff ... complained: “Sometimes during conversations with Dr. Payne, religion or Bible verses are usually brought up by him in some way. This makes me and others very uncomfortable. . . . While in Scotland with CJA staff, Dr. Payne made the statement that anyone who is not a Christian is going to hell.” She continued: “I have been told to go pray about certain issues when they are being discussed with Dr. Payne numerous times. . . . I do not feel comfortable when told to go pray from my supervisor instead of dealing with the situation.”

The court dismissed plaintiff's 1st Amendment retaliation claim.

Sunday, February 23, 2014

Recent Prisoner Free Exercise Cases

In Howard v. Connett, 2014 U.S. Dist. LEXIS 19231 (D NV, Feb. 14, 2014), a Nevada federal district court refused to grant summary judgment to defendants on an inmate's claims that Nation of Islam services are held only once monthly and he is not released regularly for other Muslim services[ on his claim that he was deprived of his Qur'an for 12 days while in disciplinary segregation; and on his claim of a conspiracy to deprive him of medical treatment based on animus toward his religion.

In Hoeck v. Miklich, 2014 U.S. Dist. LEXIS 20381 (D CO, Feb. 19, 2014), a Colorado federal district court adopted a magistrate's recommendations in part and allowed an inmate to proceed with his claims against certain defendants complaining that the practices of his "Biblical Christian" faith were not accommodated.

In Karsjens v. Jesson, 2014 U.S. Dist. LEXIS 20911 (D MN, Feb. 19, 2014), a Minnesota federal district court allowed plaintiffs to proceed with their claim that portions of the Minnesota civil commitment sex offender program violate their free exercise rights. Plaintiffs claim they are monitored during religious services and private meetings with clergy, are not allowed to wear religious apparel or have certain religious property, are not allowed communal religious feasts and cannot receive Kosher or Halal meals.

In Rahman v. Fischer, 2014 U.S. Dist. LEXIS 20846 (ND NY, Feb. 20, 2014), a New York federal district court adopted a magistrate's recommendation and dismissed a number of claims but permitted a Muslim inmate to proceed with his complaint that he was denied access to the sink to make ablution.

In Pelayo v. Hernandez, 2014 U.S. Dist. LEXIS 20616 (ND CA, Feb. 18, 2014), a California federal district court dismissed with leave to amend an inmate's complaint that he was prevented from entering the dining hall at breakfast because he was carrying a pocket Bible and thin Bible folder.

In Walker v. Artus, 2014 U.S. Dist. LEXIS 21745 (ND NY, Feb. 21, 2014), a New York federal district court adopted a magistrate's recommendations and dismissed a complaint that Muslim inmates in the special housing unit are not allowed to attend congregate religious services, nor are they allowed to watch or listen through closed circuit transmissions.

7th Circuit Affirms Denial of Preliminary Injunction to Notre Dame In Contraceptive Coverage Challenge

In University of Notre Dame v. Sebelius, (7th Cir., Feb. 21, 2014), the U.S. 7th Circuit Court of Appeals on Friday, in a 2-1 decision, denied a preliminary injunction to Notre Dame University in its challenge to the Affordable Care Act contraceptive coverage mandate as applied to religious non-profits. Handing down its decision only 9 days after hearing oral arguments, the majority in an opinion by Judge Posner affirmed the district court, saying in part:

We imagine that what the university wants is an order forbidding Aetna and Meritain to provide any contraceptive coverage to Notre Dame staff or students pending final judgment in the district court. But we can’t issue such an order; neither Aetna nor Meritain is a defendant (the university’s failure to join them as defendants puzzles us)..... Furthermore, while a religious institution has a broad immunity from being required to engage in acts that violate the tenets of its faith, it has no right to prevent other institutions, whether the government or a health insurance company, from engaging in acts that merely offend the institution..

If the government is entitled to require that female contraceptives be provided to women free of charge, we have trouble understanding how signing the form that declares Notre Dame’s authorized refusal to pay for contraceptives for its students or staff, and mailing the authorization document to those companies, which under federal law are obligated to pick up the tab, could be thought to “trigger” the provision of female contraceptives....

The novelty of Notre Dame’s claim—not for the exemption, which it has, but for the right to have it without having to ask for it—deserves emphasis. United States law and public policy have a history of accommodating religious beliefs.... What makes this case and others like it involving the contraception exemption paradoxical and virtually unprecedented is that the beneficiaries of the religious exemption are claiming that the exemption process itself imposes a substantial burden on their religious faiths. The closest analogues we have found are cases in which churches seeking rezoning or variances claim that the process for obtaining permission is so cumbersome as to constitute a substantial burden on religious practice....

The process of claiming one’s exemption from the duty to provide contraceptive coverage is the opposite of cumbersome. It amounts to signing one’s name and mailing the signed form to two addresses. Notre Dame may consider the process a substantial burden, but substantiality—like compelling governmental interest—is for the court to decide.

The majority also rejected Notre Dame's establishment clause challenge, and left its free speech challenge for further development in the district court.

Judge Flaum dissenting said in part:

Having to submit the EBSA Form 700, Notre Dame maintains, makes it “complicit in a grave moral wrong” by involving it with a system that delivers contraceptive products and services to its employees and students.

The majority has trouble accepting this position, in part due to the university’s statement that its signature will “trigger” contraceptive coverage, because the majority understands federal law to require contraceptive coverage regardless of what Notre Dame signs or does not sign.... Yet we are judges, not moral philosophers or theologians; this is not a question of legal causation but of religious faith. Notre Dame tells us that Catholic doctrine prohibits the action that the government requires it to take. So long as that belief is sincerely held, I believe we should defer to Notre Dame’s understanding.

Wall Street Journal reports on the decision.

Friday, February 21, 2014

Oregon Will Not Defend Its Same-Sex Marriage Ban In Pending Litigation

In its answer filed yesterday in Geiger v. Kitzhaber, a suit challenging Oregon's same-sex marriage ban, Oregon officials notified the federal district court:

State Defendants will not defend the Oregon ban on same-sex marriage in this litigation. Rather, they will take the position in their summary judgment briefing that the ban cannot withstand a federal constitutional challenge under any standard of review. In the meantime, as the State Defendants are legally obligated to enforce the Oregon Constitution’s ban on same-sex marriage, they will continue to do so unless and until this Court grants the relief sought by the plaintiffs.

The lawsuit was filed last October. (See prior posting.) SCOTUSblog reports on Oregon's decision not to defend its ban.

UAE Fatwa Committee Says Mars Settlement Proposal Violates Islamic Law

Last year, a Dutch company, Mars One, announced plans to establish a permanent human colony on Mars. Plans are for the first volunteers to fly there in 2023, with others following every two years. No technology currently exists to bring the colonizers back to earth. This week the Khaleej Times reports that a fatwa committee under the General Authority of Islamic Affairs and Endowment in the United Arab Emirates has ruled that promoting or participating in the one-way trips violates Islamic law:

“Such a one-way journey poses a real risk to life, and that can never be justified in Islam,” the committee said. “There is a possibility that an individual who travels to planet Mars may not be able to remain alive there, and is more vulnerable to death.”

Whoever opts for this “hazardous trip”, the committee said, is likely to perish for no “righteous reason”, and thus will be liable to a “punishment similar to that of suicide in the Hereafter”.

Some 500 Saudis and other Arabs are among those who have already applied to take part in the mission.

Court Dismisses Challenge To NYPD's Surveillance of Muslims

In Hassan v. City of New York, (D NJ, Feb. 20, 2014), a New Jersey federal district court dismissed a constitutional challenge to the New York City Police Department's surveillance of the Muslim community in New Jersey following 9/11. Plaintiffs claimed that the surveillance was motivated solely by animus against Muslims. The court concluded first that plaintiffs lack standing because they did not allege a sufficient injury from the surveillance. The alleged injury to reputations and to the religious functioning of various organizations was caused by the AP's unauthorized release of documents about the program, not by the NYPD's surveillance. The court also concluded that plaintiffs failed to show intentional discrimination:

Plaintiffs in this case have not alleged facts from which it can be plausibly inferred that they were targeted solely because of their religion. The more likely explanation for the surveillance was a desire to locate budding terrorist conspiracies. The most obvious reason for so concluding is that surveillance of the Muslim community began just after the attacks of September 11, 2001.

The Center for Constitutional Rights issued a press release reacting to the decision. AP reports on the decision.

Los Angeles Archdiocese Settles Remaining Clergy Abuse Cases For $13 Million

As reported by KPCC News, earlier this week the Catholic Archdiocese of Los Angeles agreed to settle the 17 clergy abuse lawsuits remaining against it for a total of $13 million. Eleven of the suits involve charges relating to Mexican priest Nicolas Aguilar Rivera who molested at least 26 boys in his 10 months in Los Angeles and then fled before the Archdiocese notified police about complaints against him. Cardinal Roger Mahoney who headed the Archdiocese at the time of the molestations and is now retired was sanctioned last year by his successor after released files showed he was involved in shielding accused priests from law enforcement authorities. (See prior posting.) The KPPC article includes a link to Augilar Rivera's full personnel file.

Thursday, February 20, 2014

North Korea Detains Christian Missionary For Distributing Gospel Tracts

London's The Telegraph reported yesterday that North Korea has detained a 75-year old Christian missionary for distributing Korean language gospel tracts that he had written. He could face up to 15 years in prison for his actions. The missionary, John Short, is an Australian who lives with his family in Hong Kong and is a member of The Gospel Hall brethren. This was his second trip to North Korea. Short's wife told the press: "We're faith missionaries and he believed that we should care and not just talk but do something… Ultimately, we're in God's hands and that's how we look at it."

India's Supreme Court Says Country's Adoption Law Applies To Muslims

In Hashmi v. Union of India, (Sup. Ct. India, Feb. 19, 2014), a 3-judge panel of the Supreme Court of India held that the Juvenile Justice (Care And Protection of Children) Act, 2000 (background), allows a parent of any religion to adopt an eligible child. The Court described the Juvenile Justice Act as a "small step" toward a uniform Civil Code envisioned by Art. 44 of the Indian Constitution. The Court rejected the argument of the All India Muslim Personal Law Board that Child Welfare Committees should follow the principles of Islamic law before declaring a Muslim child available for adoption. Islamic law recognizes the Kafala system under which a child in need remains a descendant of its biological parents even though it is placed under the care of others. Because of these differing views on adoption, however, the court refused to declare adoption a fundamental right under Art. 21 of the Indian Constitution. Calcutta's The Telegraph reports on the decision.

Faith Healing Parents Get 3 1/2 to 7 Years In Death of Child

In Philadelphia yesterday, Herbert and Catherine Schaible were sentenced to three and one-half to seven years in prison in the faith-healing death from pneumonia of their 8-month old son last year. The couple pleaded no-contest to third degree murder charges in the case. At the time of the death, the couple were already on 10-years probation for the similar death of another of their children for whom they failed to seek medical treatment. (See prior posting.) The couple belong to the First Century Gospel Church which teaches that illness is to be healed through prayer. AP reports that the prosecution had asked for sentences of 8 to 16 years:

“It was so foreseeable to me that this was going to happen,” said Assistant District Attorney Joanne Pescatore, who prosecuted both cases. “Everybody in the system failed these children.”

After the first death, she and public defender Mythri Jayaraman agreed that the couple’s beliefs were so ingrained that their children remained at risk. They asked the earlier judge to have the family supervised by a Department of Human Services caseworker. Instead, the judge assigned them to probation officers, who are not trained to monitor children’s welfare.

In sentencing the couple, Judge Benjamin Lerner told them: "You’ve killed two of your children. ... Not God. Not your church. Not religious devotion. You."

Group Homes Ordered Closed After Charges That Disabled Residents Were Punished For Refusing To Attend Religious Services

The Los Angeles Times reports that last Friday a California trial court judge appointed a receiver to begin relocating dozens of physically and mentally disabled residents from two unlicensed religiously-operated group homes. Husband and wife, Kang Won Lee and Jung Hwan Lee, operate the two Los Angeles facilities, Agape Mission House and Agape Home Church. Los Angeles authorities say living conditions in the homes were deplorable. They also say that residents were forced to attend religious services twice a day, regardless of their religious beliefs. If they refused, they were punished by being required to stand by a tree for up to 4 hours, translate Bible verses for a full day and sleep outside at night.

MLK Bible and Medal ordered Under Court Control While Litigation Is Pending

A Georgia state trial court has issued a preliminary ruling in the lawsuit between the children of Dr. Martin Luther King, Jr. over control of his Nobel Peace Prize and his famous "traveling" Bible. Bernice King is seeking to prevent her two brothers (who control the King estate) from selling the two items over her dissenting vote. The estate has sued to force Bernice (who currently controls the items) to turn them over. (See prior posting.) According to Reuters, yesterday the judge, saying there is a likelihood the estate will win its lawsuit, ordered the items moved to a single bank safe-deposit box with the judge controlling the keys to it.

Marijuana DUI Law Does Not Injure Religious User of Cannabis

In Baker v. State of Colorado, (D CO, Feb. 18, 2014), a Colorado federal district court adopted a magistrate's recommendation (Feb. 7, 2014) and dismissed for lack of standing a free exercise challenge to Colorado's marijuana DUI statute. The magistrate's conclusion, adopted by the district court, was:

Plaintiff alleges that Colorado's marijuana DUI statute violates his First Amendment right to free exercise of religion because it infringes on his right to (1) personally use cannabis for medical and sacramental purposes and (2) run a church that uses cannabis in its religious practices.... Plaintiff does not allege facts indicating that his religion specifically necessitates marijuana use resulting in five ngs or more of Delta 9-THC in his bloodstream while driving a car. Therefore, Plaintiff fails to allege facts showing that Colorado's marijuana DUI statute has unconstitutionally burdened his religious practices.... Accordingly, he fails to allege an injury in fact in connection with his First Amendment claim.

Court Says Parents Who Lost Custody of Child Have Only Limited Control Over Child's Religious Exposure

In In re T.K, (OH Ct.. App., Feb. 19, 2014), an Ohio appeals court held that when legal custody of a child is given to the child's grandparents, there are limits on the extent to which the child's mother can dictate the boy's religious upbringing. The boy was originally placed with the grandparents when he tested positive for marijuana at birth, and custody was made permanent 9 months later with the parents' consent. However the boy's mother objected to the grandparents raising her son in their Catholic faith. An Ohio statute (RC 2151.353(A)(3)(c)) provides that when legal custody is transferred, parents retain the residual "privilege to determine the child's religious affiliation."

The court of appeals upheld the trial court's implementation of the mother's preference by an order providing that "the grandparents not engage the child in church activities or rituals designed for ... membership, including those required for membership into the Catholic Church." The mother had wanted a broader order prohibiting the grandparents from in any way, teaching, indoctrinating, or actively exposing the child to any religion, Catholic or otherwise. The court however focused on the statute's use of the term "affiliation" and agreed with the trial court that exposure to religion is not tantamount to affiliation.

Wednesday, February 19, 2014

Upcoming Conferences and Survey

Here are several items that may be of particular interest to law school faculty members, lawyers and policy makers:

The 5th annual Religious Legal Theory conference is being held this year at Emory University Law School on Feb. 24-25, hosted by its Center for the Study of Law and Religion. This year's theme is "A Global Conversation: Exploring Interfaith and International Models for the Interaction of Religion and State." More details are available at the Center's website.

On April 3-5, Harvard Law School is hosting a conference titled "Religious Accommodation in the Age of Civil Rights." The conference is co-sponsored by Harvard Law School, Williams Institute, ACLU, and USC Center for Law, History and Culture. More details are available online at Harvard Law School's website.

Prof. Faisal Kutty, with the endorsement of the AALS Section on Islamic Law, is conducting a survey on Teaching of Islamic Law In North American Law Schools. The online survey is available from this link.

Church of England Issues Pastoral Guidance on Same-Sex Marriage

In Britain last week, the House of Bishops of the Church of England issued Pastoral Guidance on Same Sex Marriage (full text) in response to Parliament's enactment of the Marriage (Same Sex Couples) Act 2013. (See prior posting.) The Bishop's statement says in part [emphasis in original]:

12. When the Act comes into force in March it will continue not to be legally possible for two persons of the same sex to marry according to the rites of the Church of England. In addition the Act makes clear that any rights and duties which currently exist in relation to being married in church of England churches do not extend to same sex couples....

18. We recognise the many reasons why couples wish their relationships to have a formal status. These include the joys of exclusive commitment and also extend to the importance of legal recognition of the relationship. To that end, civil partnership continues to be available for same sex couples. Those same sex couples who choose to marry should be welcomed into the life of the worshipping community and not be subjected to questioning about their lifestyle. Neither they nor any children they care for should be denied access to the sacraments....

20. The 2005 pastoral statement said that it would not be right to produce an authorized public liturgy in connection with the registering of civil partnerships and that clergy should not provide services of blessing for those who registered civil partnerships. The House did not wish, however, to interfere with the clergy's pastoral discretion about when more informal kind of prayer, at the request of the couple, might be appropriate in the light of the circumstances....

21. The same approach ,,, should therefore apply to couples who enter same-sex marriage, on the assumption that any prayer will be accompanied by pastoral discussion of the church's teaching and their reasons for departing from it. Services of blessing should not be provided. Clergy should respond pastorally and sensitively in other ways....

27. The House is not, therefore, willing for those who are in a same sex marriage to be ordained to any of the three orders of ministry. In addition it considers that it would not be appropriate conduct for someone in holy orders to enter into a same sex marriage, given the need for clergy to model the Church's teaching in their lives.

Law & Religion UK blog has more on the Bishop's statement.