New Lawsuit Challenging Contraceptive Mandate Filed By Multi-employer Catholic Organization and Others

Catholic News Service and a press release from Catholic Benefits Association report on the latest lawsuit that has been filed to challenge the Affordable Care Act contraceptive coverage mandate. Plaintiffs in the lawsuit filed yesterday in federal court in the Western District of Oklahoma are Catholic Benefits Association and its captive insurance company, the Archdiocese of Oklahoma City and its Catholic Charities, All Saints Catholic School in Oklahoma, Archbishop William E. Lori and the Archdiocese of Baltimore, Cathedral Foundation in Baltimore, Villa St. Francis Catholic Care Center in Kansas City, KS, and Good Will Publishers in North Carolina.

Catholic Benefits Association is a recently-formed organization comprised of nearly 200 Catholic employers and 1000 parishes from around the United States.  The organization makes self-insurance plans with back-up stop loss insurance (with coverage consistent with Catholic values) available to members, and "provides a cost-effective strategy for Catholic employers seeking protection from the HHS contraception, abortion-inducing drugs or devices, sterilization, or related counseling ... Mandate and other similar state or federal mandates." (CBA FAQs).

With the U.S. Supreme Court about to hear arguments in the Hobby Lobby case on whether corporations can assert free exercise rights, it is interesting to note Catholic Benefits Association's criteria for becoming an employer member:

For-profit employers can become CBA members if (i) Catholics (or trusts or other entities wholly controlled by Catholic) own 51 percent or more of employer; (ii) 51 percent or more of the members of the employer’s governing body, if any, is comprised of Catholics; and (iii) either the employer’s owners or governing body has adopted a written policy stating that the employer is committed to providing no benefits to the employer’s employees or independent contractors inconsistent with Catholic values.

UPDATE: The complaint (full text) in Catholic Benefits Association v. Sebelius,(WD OK, filed 3/12/2014) is now available.

Cert. Filed In RLUIPA Land Use Case

Earlier this week a petition for certiorari (full text) was filed with the U.S. Supreme Court in Eagle Cove Camp & Conference Center, Inc. v. Town of Woodsboro, Wisconsin, (cert. filed 3/10/2014).  In the case the U.S. 7th Circuit Court of Appeals rejected challenges to county land use regulations which prohibit plaintiff from operating a year-round Bible camp on residentially zoned property. (See prior posting.) The cert. petition asks the Supreme Court to settle conflicts over the interpretation of several provisions of the Religious Land Use and Institutionalized Persons Act.  [Thanks to Art Jaros for the lead.]

Washington Legislature Passes Bill Giving Public Employees, Students 2 Days Off For Religious Holidays

Yesterday the Washington state legislature passed and sent to the governor for signature SB 5173 that assures state employees and public school students two days per year off for religious holidays. Public employees, including employees of school districts and public colleges, under the bill are entitled to "two unpaid holidays per calendar year for a reason of faith or conscience or an organized activity conducted under the auspices of a religious denomination, church, or religious organization."

The bill also provides that a student is excused from attending school "subject to approval by the student's parent for a reason of faith or conscience, or an organized activity conducted under the auspices of a religious denomination, church, or religious organization, for up to two days per school year
without any penalty." However it goes on to provide that "such absences may not mandate school closures." The bill passed 64-32 in the House, and 49-0 in the Senate. Yesterday's Bellingham Herald reports on the bill's passage.

House Passes Religious Exemption To Required Health Insurance For Those Who Are Opposed To All Medical Treatment

With bipartisan support, the House of Representatives yesterday passed by voice vote and sent to the Senate H.R. 1814-- the Equitable Access to Care and Health (EACH) Act. The Hill reports on the House vote which extends an exemption (26 USC 5000A(d)(2)) currently in the Affordable Care Act that exempts members of a "recognized religious sect" whose tenets oppose accepting benefits of medical insurance. The bill passed by the House provides an exemption to individuals whose "sincerely held religious beliefs would cause the individual to object to medical health care that would be covered under such coverage." The bill is apparently intended to cover only those who hold sincere religious beliefs object to all health care supervised by physicians.  It does not require the objector to be a member of a religious group with such tenets. To obtain the exemption, an individual would be required to file a sworn statement with his or her tax return.  The exemption is lost if the individual during the year receives medical health care.

Israel's Knesset Passes Law To Draft Yeshiva Students

In Israel today, the Knesset passed the controversial Equal Service Bill imposing military service obligations on ultra-Orthodox (Haredi) Jewish yeshiva students who have historically enjoyed a draft exemption. Times of Israel reports that the bill provides for a 3-year transition period during which a target for ultra-Orthodox enlistees into the military will be set.  The target will rise each year until 2017 when it will go to 5,200 new Haredi enlistees each year. Individual sanctions against yeshiva students who dodge the draft will be triggered if these enlistment targets are not met. The bill passed 67-1, with the opposition boycotting the vote. In 2012, Israel's High Court of Justice struck down the Tal Law -- whose formal title was "Deferral of Service for Yeshiva Students for Whom Torah Is Their Profession Law." (See prior posting.)

IRS Issues Sample Questions That May Be Asked Of Non-Profits In Making Rulings

In EO [Exempt Organizations] Update March 4, 2014, the Internal Revenue Service  released a list of Sample Questions that may be asked of organizations applying for a determination that they are tax exempt. Among the sample questions are ones that might be asked of a Church Affiliate (Integrated Auxiliary); and of a Mission Society. IRS also released questions that might be asked in making a determination on whether Bingo and Other Gaming will jeopardize the tax status of, or lead to added taxes for, a non-profit (Background).

Jewish Employee's Discrimination Claim Against New York City Dismissed

In Brodt v. City of New York, 2014 U.S. Dist. LEXIS 29229 (SD NY, March 6, 2014), a New York federal district court dismissed claims by a former employee of the New York City Department of Information Technology & Telecommunications that he was denied a permanent position and eventually fired under the pretext of budget limitations when in fact the actions were based on his being an observant Jew. The court held that the facts alleged do not plausibly show discriminatory animus or a hostile work environment. According to the court, the comments by his supervisor that plaintiff should pray for him and his comments about plaintiff's nine children were simple teasing or isolated incidents. His supervisor's constantly rubbing plaintiff's yarmulke was merely annoying conduct.

Appeals Court Rejects Ban on Children Attending Mother's Church

In Stancek v. Stancek, (MN App., March 10, 2014), the Minnesota Court of Appeals resolved a child custody dispute between separated parents as to their three daughters. Before the parties separated, they belonged to Word of Life Church where the wife's parents were pastors, and where one of the children attended kindergarten. When the couple became estranged, the Church's board of trustees sent the father a letter prohibiting him from attending the church. The trial court awarded legal and physical custody of the children to the father. It also prohibited the mother from taking the children to the Word of Life Church because "that would likely lead to the alienation of the children from their father ... or result in an uncomfortable worship scenario for the children...." Without reaching the free exercise and establishment clause arguments, the Court of Appeals held:

The record does not support the finding that it is “impossible” for the children to attend Word of Life Church..... The district court’s conclusion... is modified so that mother’s provision of care for the children (as an alternative to daycare) may be either at her home or at any daycare facility where she works (without regard to whether the facility is located at her church)..... Similarly, the prohibition on the children attending or otherwise being part of the Word of Life congregation is unsupported by the findings as modified, and the prohibition is therefore reversed.

Supreme Court Denies Review In Break-Away Church Property Dispute

The U.S. Supreme Court yesterday denied certiorari in Falls Church v. Protestant Episcopal Church, (Docket No. 13-449, cert. den. 3/10/2014). (Order List.) In the case, the Virginia Supreme Court ordered that a break-away local congregation must convey most of its property to The Episcopal Church by reason of TEC's "Dennis Canon," but remanded as to personal property acquired by the local congregation after its vote to disaffiliate from TEC. (See prior posting.) Religion News Service reports on the Court's denial of review. [Thanks to Bob Tuttle for the lead.]

Suit Challenges Indiana's Same-Sex Marriage Ban

The Indianapolis Star reports that last Friday a lawsuit was filed in federal district court challenging the constitutionality of Indiana's statutory ban on same-sex marriages and on recognizing same-sex marriages performed in other states. In a press release, state Attorney General Greg Zoeller said:

As Indiana's Attorney General I will represent our state and defend our statute now and on any appeal to the best of my skill and ability, as I swore an oath to do.  As state government’s lawyer, I must defend the state’s authority to define marriage at the state level within Indiana’s borders.  People of goodwill have sincere differences of opinion on the marriage definition, but I hope Hoosiers can remain civil to each other as this legal question is litigated in the federal court.

Meanwhile the state legislature effectively delayed until at least 2016 any vote on a proposed state constitutional amendment to ban same-sex marriage in the state. [Thanks to Alliance Alert for the lead.]

Required Signs In Pregnancy Counseling Centers Held Unconstitutional

In Centro Tepeyac v. Montgomery County, (D MD, March 7, 2014), a Maryland federal district court enjoined the enforcement of a Montgomery County Maryland Resolution that requires each "limited service pregnancy center" to post to post a sign in its waiting room that reads:

(1) “the Center does not have a licensed medical professional on staff”; and (2) “the Montgomery County Health Officer encourages women who are or may be pregnant to consult with a licensed health care provider”.

The court held that the Resolution is a content-based regulation that compels non-commercial speech, and thus triggers strict scrutiny review. It concluded:

The record produced by Defendants is simply insufficient to sustain this regulation of Plaintiff’s First Amendment rights. Assuming arguendo that the County has a compelling interest in positive health outcomes for pregnant women, the critical flaw for the County is the lack of any evidence that the practices of LSPRCs are causing pregnant women to be misinformed which is negatively affecting their health. It does not necessarily follow that misinformation will lead to negative health outcomes.

Alliance Defending Freedom issued a press release announcing the decision.

Recent Articles of Interest

From SSRN:

• Julia Chamberlin & Amos N. Guiora, Polygamy: Not 'Big Love' But Significant Harm, (Women's Rights Law Reporter, Rutgers University School of Law (2014 Forthcoming)).
• Sean T. Murphy, No More Christian Doctors, (February 24, 2014).
• Michael A. Helfand & Barak D. Richman, The Challenge of Co-Religionist Commerce, (Duke Law Journal, Forthcoming).
• Sahar F. Aziz, Veiled Discrimination, (March 3, 2014).
• Kenneth Lasson, Sacred Cows, Holy Wars: Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat, (March 6, 2014).
• Rabia Belt, When God Demands Blood: Unusual Minds and the Troubled Juridical Ties of Religion, Madness, and Culpability, (March 1, 2014).
• Teemu Ruskola, What is a Corporation? Liberal, Confucian, and Socialist Theories of Enterprise Organization (and State, Family, and Personhood), (Seattle University Law Review, Vol. 37, p. 637, 2014).

From SSRN (non-US law):

• Richard Moon, Religious Accommodation and Its Limits: The Recent Controversy at York University, (Constitutional Forum, Vol. 23, Forthcoming).
• Nathalie Des Rosiers, Free Religions or Freedom from Religion? Canada, Federalism and Religion, (February 23, 2014).
• Jeroen Temperman, Recognition, Registration, and Autonomy of Religious Groups: European Approaches and Their Human Rights Implications, (in: David Kirkham (ed.), State Responses to Religious Minorities (Aldershot: Ashgate, 2013), pp. 151-165).
• AliReza ShakarBeigia, Peyman Akbari & Ghodrat Heydari, Expansion of Citizenship Rights Based on Religious Teachings Jurisprudence and Law, (Scientific Journal of Pure and Applied Sciences (2014) 3(2) 48-53).
• Michelle Biddulph & Dwight G. Newman, Eweida v United Kingdom, (Australian International Law Journal, Vol 20, 2013: 183-188).
• Hanna Lerner, Permissive Constitutions, Democracy, and Religious Freedom in India, Indonesia, Israel, and Turkey, (World Politics, Volume 65, Issue 4 (October 2013), pp. 609-655).
• Engy Abdelkader, Myanmar's Democracy Struggle: The Impact of Communal Violence Upon Rohingya Women and Youth, (Pacific Rim Law & Policy Journal, 2014).

From SmartCILP:

• Michael W. McConnell, Why Protect Religious Freedom? (Reviewing Brian Leiter, Why Tolerate Religion?), 123 Yale Law Journal 770-810 (2013).
• Capt. Malcolm H. Wilkerson (U.S. Army), Picking Up where Katcoff Left Off: Developing a Framework for a Constitutional Military Chaplaincy, 66 Oklahoma Law Review 245-286 (2014).
• Tung Yin, Were Timothy McVeigh and the Unabomber the Only White Terrorists?: Race, Religion, and the Perception of Terrorism, 4 Alabama Civil Rights & Civil Liberties Law Reveiw 33-87 (2013). 

Malaysia Bans Comic Book That Refers To Super Hero As "Allah"

Time reports that in Malaysia last week, the Home Ministry banned distribution of the Malay language issue of Ultraman the Ultra Power comic book for its use of "Allah" in describing its super hero.  The offending sentence has been translated as: "He is considered, and respected as, ‘Allah’ or the Elder to all Ultra heroes." The Home Ministry says that the comic book contains elements that can undermine public security and societal morals, and warned that the language threatens to confuse Muslim children and damage their faith.  Some in Malaysia have taken to social media to deride the government's response. According to CNA, anyone distributing the banned comic book could face a sentence of three years in prison. This latest order adds to the long-running controversy over the use of "Allah" by non-Muslims-- particularly the use by Malay speaking Catholics to refer to God. (See prior posting.)

Fired Gay Catholic School Vice-Principal Sues

Last Friday, a lawsuit was filed in state court in Seattle, Washington by a former Catholic high school vice-principal Mark Zmuda who was fired after he married his same-sex partner last December.  According to The Guardian, the suit alleges violation of Washington's law against discrimination, breach of implied contract, wrongful termination, violation of the consumer protection act, and tortious interference.  The Guardian reports:

Zmuda does not dispute that he signed an employment contract that required him to uphold Catholic teachings. However, his complaint claims that the school misrepresented its employment environment as being one of inclusion and anti-discrimination both on its website and in its employee handbook.

The school's president, Sister Mary Tracey knew earlier on that Zmuda is gay. He complied with her request not to bring his partner to school events. After the marriage, Sister Mary told Zmuda that if he would divorce his husband, the school would pay the costs of a commitment ceremony in place of a wedding, and would allow him to keep his job. The school is seeking dismissal of the suit on the basis of its 1st Amendment right to make its own decisions on matters of faith and doctrine.

Recent Prisoner Free Exercise Cases

In Wiseman v. Cate, 2014 U.S. Dist. LEXIS 26373 (ED CA, Feb. 27, 2014), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that Muslim inmates in the Halal food plan are provided Halal meat at dinner but are only provided vegetarian meals at breakfast and lunch.

In Rowe v. Indiana Department of Corrections, 2014 U.S. Dist. LEXIS 27060 (SD IN, March 3, 2014), an Indiana federal district court denied cross motions for summary judgment and permitted an inmate to continue to pursue his free exercise and RLUIPA challenges to prison policies that call for the zero tolerance on security threat groups, prohibit visits from ex-prisoners, limit the number of books that can be possessed, limit certain inmate-to-inmate correspondence, bar item censorship of religious publications, and ban the swastika.

In Esposito v. Quatinez, 2014 U.S. Dist. LEXIS 28452 (ED NY, March 5, 2014), a New York federal district court permitted plaintiff who was involuntarily committed to the psychiatric unit of Stony Brook University Hospital to continue to pursue her claim that requiring her to remain hospitalized violates her free exercise rights because her religious beliefs require that she not affiliate herself through receipt of treatment with a hospital that performs abortions.

In Baumgarten v. Howard County Department of Corrections, 2014 U.S. Dist. LEXIS 28590 (D MD, March 6, 2014), a Maryland federal district court permitted a Jewish inmate to proceed with his complaint that he was repeatedly denied kosher meals for which he had been approved. Plaintiff is seeking damages.

In Mitchell v. Cicchi, 2014 U.S. Dist. LEXIS 28738 (D NJ, March 6, 2014), a New Jersey federal district court dismissed, without prejudice, a Muslim inmate's complaint that he was barred from participating in the jail's Eid festival because of his maximum security status.

Court Holds Middle School In Florida Not Covered By Federal Equal Access Act

In Carver Middle School Gay-Straight Alliance v. School Board of Lake County, Florida, (MD FL, March 6, 2014), a Florida federal district court denied a preliminary injunction to the Gay-Straight Alliance that sought recognition as an official student organization in a Florida middle school.  The court held that plaintiffs had not shown a likelihood of success on the merits of their claim that a middle school constitutes a "secondary school" for purposes of coverage under the federal Equal Access Act. That Act leaves the definition of secondary school to state law, and Florida statutes are unclear about whether this includes middle schools.  The court also held that plaintiffs had not shown a likelihood of success on the merits of their 1st Amendment free speech claim because the refusal to recognize the group was reasonably related to legitimate pedagogical concerns in light of the age of the students involved.

First Guilty Plea In Coerced Jewish Divorce Extortion Operation

The New Jersey U.S. Attorney's Office announced that David Hellman, a 31-year old personal trainer, pleaded guilty yesterday in federal court to traveling in interstate commerce to commit extortion in an attempt to coerce a Jewish man in New York to give his wife a "get"-- a Jewish divorce document. Hellman was part of a group of men-- including two rabbis-- who allegedly charged women tens of thousands of dollars to use violence against their recalcitrant husbands who refused to grant a Jewish divorce after a civil divorce had been obtained. They were arrested in an FBI sting operation. (See prior posting.) Hellman was the first of the group charged to plead guilty.  His bail conditions include a $500,000 bond and GPS monitoring. He faces a possible sentence of as much as 20 years in prison and a $250,000 fine. The Newark Star-Ledger reports on the case.

UPDATE: The March 11 Asbury Park Press reports that two additional defendants involved have pleaded guilty to charges of traveling in interstate commerce to commit extortion.

Purdue Reaches Compromise With Donor Over Reference To God on Plaque

Purdue University's controversy with a donor over the wording on a plaque has been settled with a compromise. As previously reported, suits and counter-suits were threatened when the University balked at placing on a conference room dedication plaque the donor's requested inscription that referred to "the understanding of God’s physical laws." Now, according to yesterday's Purdue Eponent, the University has agreed to revised language which shows the reference as a quotation from the donor. Also the University will add a second plaque nearby which will make clear that the quote is not Purdue's language and that the University is aware of its legal obligations of neutrality.

EEOC Releases Guidance On Religious Garb and Grooming Accommodation

The EEOC announced yesterday the release of two related technical assistance publications on the law regarding religious dress and grooming in the workplace. A Question and Answer document titled Religious Garb and Grooming in the Workplace: Rights and Responsibilities is a guide (including examples) to when and how employers must accommodate employees' religiously-based requests on clothing, religious dress, head coverings, hair style and beards. The related Fact Sheet summarizes the basic requirements of Title VII.

The new guidance comes as the Department of Justice announced the filing of a federal lawsuit against the Philadelphia (PA) school district charging it with discrimination against a Muslim school police officer who was reprimanded for wearing a beard in violation of an October 2010 policy change that prevents school police and security officers from wearing beards longer than one-quarter inch. The employee, Siddiq Abu-Bakr, has worn a longer beard for the 27 years he has worked for the school district.

Google Denied Stay of Order To Take Down "Innocence of Muslims", But En Banc Rehearing Is Possible

As previously reported, last month in Garcia v. Google, Inc.,  the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a preliminary injunction should be granted to require the controversial film "Innocence of Muslims" to be removed from YouTube.  The decision came in a copyright suit filed by Cindy Lee Garcia who acted in a portion of the film. The decision was filed on Feb. 27, but apparently several days before the public release of the opinion the court ordered Google to take down the video.  In a Feb. 27 motion, Google sought a stay pending a petition for an en banc rehearing (full text), saying:

The Court last Wednesday issued a sealed order directing that Defendant-Appellee Google Inc. take down “all copies” of the video "‘Innocence of Muslims’ from YouTube.com and from any other platforms under Google’s control" and that Google "take all reasonable steps to prevent further uploads of ‘Innocence of Muslims’ to those platforms." Google has complied with the Court’s order, but in light of the intense public interest in and debate surrounding the video, the video should remain accessible while Google seeks further review.

In an Order (full text) issued Feb. 28, the court denied a stay and ordered Google to comply with the take down mandate within 24 hours, but added that "this order does not preclude the posting or display of any version of “Innocence of Muslims” that does not include Cindy Lee Garcia’s performance."

In the latest development, yesterday the court issued an Order (full text) stating that one judge has requested a vote on whether to rehear en banc the request for a stay. The court gave the parties until March 12 to file briefs on whether an en banc rehearing should be granted. [Thanks to Edward Lee via CyberProf listserv for the lead.]