Supreme Court Review Sought In NY Pregnancy Service Center Case

On Friday, the American Center for Law and Justice filed a petition for certiorari (full text) with the U.S. Supreme Court in Evergreen Association, Inc. v. City of New York.  In the case, the 2nd Circuit upheld a portion of a New York City ordinance requiring pregnancy service centers to make certain disclosures to potential clients in waiting rooms, in advertisements and in telephone conversations.  The Second Circuit in its Jan. 17, 2014 opinion (full text) upheld (by a 2-1 vote) the requirement to disclose whether or not there is a licensed medical provider on staff. The circuit court unanimously struck down the requirements to disclose whether or not the center provides or refers out for abortion, emergency contraception and prenatal care, and a requirement to disclose that the New York health department encourages women who may be pregnant to consult a licensed medical provider.

Recent Prisoner Free Exercise Cases

In Hailes v. Collier, 2014 U.S. Dist. LEXIS 76127 (SD OH, June 3, 2014), an Ohio federal magistrate judge recommended dismissing a complaint by Seventh Day Adventist inmate that he was retaliated against for not reporting for snow removal duty on his Sabbath.

In Watts v. Allen, 2014 U.S. Dist. LEXIS 76402 (MD GA, June 5, 2014), a Georgia federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 76763, May 14, 2014) and dismissed an inmate's complaint that he is being denied a vegan diet.

In Parkell v. Morgan, 2014 U.S. Dist. LEXIS 76989 (D DE, June 6, 2014), a Delaware federal district court dismissed an inmate's complaint that he was denied a kosher diet.

In Mead v. Palmer, 2014 U.S. Dist. LEXIS 77011 (ND IA, June 6, 2014), an Iowa federal district court dismissed a complaint by plaintiff, an involuntarily committed patient at a civil commitment sexual offender unit, that he was not provided a Pentecostal minister to meet with.

In Williams v. Emmons, 2014 U.S. Dist. LEXIS 76528 (MD GA, June 5, 2014), a Georgia federal district court, rejecting in part a magistrate's recommendation (2014 U.S. Dist. LEXIS 77342, May 8, 2014), refused to permit a Muslim inmate to proceed with his claim for compensatory damages despite his weight loss and headaches stemming from the failure to provide him with vegan meals. The court concluded that plaintiff had not alleged more than de minimis physical injury as required by the Prison Litigation Reform Act. However the court permitted plaintiff to proceed with his claim for nominal damages.

Mexican Destination Wedding Using Internet-Ordained Clergy Did Not Create Lawful New York Marriage

In Ponorovskaya v. Stecklow, (NY County Sup. Ct., May 29, 2014), a New York state trial court dismissed a divorce action, finding that the parties were never legally married.  At issue was what the court described as:

a license-less marriage supposedly solemnized in what can only be described as a "pseudo-Jewish" wedding ceremony conducted at a Mexican beach resort by a New York dentist who became a Universal Life Church minister on the internet solely for the purpose of performing weddings for friends and relatives.

The wife who was suing for divorce claimed that even though the ceremony was invalid under Mexican law, the parties were still married because  New York Domestic Relations Law §25 provides in part:

Nothing in this article ... shall be construed to render void by reason of a failure to procure a marriage license  any  marriage  solemnized  between  persons of full age....

However the court held that "DRL § 25 should be construed to apply to weddings that take place outside of New York State only under the most extraordinary of circumstances."

The court went on to discuss, but not decide, whether the marriage was properly solemnized:

These provisions call into question whether a person like Dr. Arbeitman, the dentist/Universal Life Church minister who conducted the ceremony here, is a "clergyman" or "minister" under New York law and thus authorized to officiate at weddings.....

Whether the ULC is a church or not, and whatever its belief system may be, compared to other online "religions" that enable people to pay a small fee, obtain a certificate of ordination and then perform religious wedding ceremonies, it seems practically mainstream. There is, for instance, the Church of the Flying Spaghetti Monster, a religious group comprised of atheists, which, upon the payment of a $20 fee, will make an online applicant a "pastafarian minister." Then there is Dudeism, also referred to the Church of the Latter Day Dude, which portends to be a religious philosophy based on the protagonist in the Coen Brothers' cult classic The Big Lebowski. One can be ordained online for free and be authorized to perform weddings as a Dudeist Priest.

Fortunately, this court need not wade into the treacherous waters of attempting to determine what is a "real" religion and what is not, something that would seem to "necessarily involve an impermissible inquiry into religious doctrine or practice".... Given the finding that ... the parties' purported marriage is invalid because it was "an absolute nullity" under the law of the jurisdiction where it took place, it is not of great moment whether Dr. Arbeitman was legally entitled under New York law to solemnize the marriage. 

Egyptian Government Decree Bars Unapproved Imams From Preaching Publicly

Reuters reports that today the Egyptian government issued a decree allowing only state approved clerics to preach in mosques or other public places:

According to the decree, "only designated specialists at the Ministry of Religious Endowments and authorized preachers from al-Azhar shall be permitted to practice public preaching and religious lessons in mosques or similar public places."

Only al-Azhar officials and graduates as well preachers from the ministry or the grand mufti's office will be allowed to wear the trademark "turban" - a red hat with a white cloth band - and robes that designate an al-Azhar cleric, it said.

Unauthorized preachers face fines jail terms up to a year and fines up to 50,000 Egyptian pounds ($7,000). Wearing or denigrating al-Azhar garments in any way will carry similar penalties, it added.

The decree is another step in the government's attempt to prevent mosques from being used as recruiting grounds for Islamist political parties.

Wisconsin's Same-Sex Marriage Ban Struck Down; Marriages Begin Ahead of Motion To Stay Court's Order

Yesterday in Wolf v. Walker, (WD WI, June 6, 2014), a Wisconsin federal district court, in an 88-page opinion, struck down Wisconsin's ban on same-sex marriage. Judge Barbara Crabb wrote in part:

I conclude that the Wisconsin laws prohibiting marriage between same-sex couples interfere with plaintiffs’ right to marry, in violation of the due process clause, and discriminate against plaintiffs on the basis of sexual orientation, in violation of the equal protection clause.... To decide this case in favor of plaintiffs, it is not necessary, as some have suggested, to “cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools,”....  Rather, it is necessary to conclude only that the state may not intrude without adequate justification on certain fundamental decisions made by individuals and that, when the state does impose restrictions on these important matters, it must do so in an even-handed manner.

This case is not about whether marriages between same-sex couples are consistent or inconsistent with the teachings of a particular religion, whether such marriages are moral or immoral or whether they are something that should be encouraged or discouraged....  Quite simply, this case is about liberty and equality, the two cornerstones of the rights protected by the United States Constitution.

 As reported by the Milwaukee Journal-Sentinel, the court's decision does not make clear whether counties may begin to immediately issue marriage licenses. The court declared the state constitutional and statutory provisions barring same-sex marriage unconstitutional and gave the parties until June 16 to submit proposed language for an injunction. The paper reports:

Dane County Clerk Scott McDonell, a Democrat, began issuing marriage licenses at 5 p.m. Friday as gay couples were married there throughout the night. He said state Department of Justice officials advised him not to issue the licenses but McDonell moved forward despite that.

Wisconsin Attorney General J.B. Van Hollen issued a news release announcing that he will file emergency motions in federal courts seeking a stay of the district court's order. Yesterday Van Hollen also issued a statement in a series of nine Tweets saying that his office will continue to defend the constitutionality of "our traditional marriage laws."

Another Temporary Stay For Same-Sex Couples Married In Utah During Gap Period

As previously reported, on May 19 in Evans v. Utah a Utah federal district court granted a preliminary injunction requiring the state to recognize same-sex marriages solemnized under Utah marriage licenses on the 17 days between a federal district court decision striking down Utah's ban  on same-sex marriages, and the U.S. Supreme Court's stay of that order. However the district court postponed the effectiveness of its order for 21 days to give the state time to decide how to proceed.  The 21-day period would expire on Monday.  Yesterday the Utah Attorney General's office announced that it has filed a notice of appeal and a request for a stay with the 10th Circuit in Evans.  In response, within hours, the 10th Circuit issued a temporary stay and ordered plaintiffs to respond by June 12 to the motion for a stay pending appeal. (AG office announcement.)

House-Passed Version of Defense Authorization Bill Impacts Chaplains, Religious Expression

The text of HR 4435, the "Howard P. ‘Buck’ McKeon National Defense Authorization Act for Fiscal Year 2015" as it passed the House of Representatives on May 22 is finally available online. The bill contains three provisions impacting military chaplains and religious expression by service members:

• Section 507 allows the Secretary of Defense to defer the retirement of a chaplain beyond age 68 if necessary for the needs of the military.
• Section 525 authorizes chaplains "called upon to lead a prayer outside of a religious service ... to close the prayer according to the traditions, expressions, and religious exercises of the endorsing faith group."
• Section 528 requires the Department of Defense to revise  Instruction 1300.17 (DOD's January 2014 policy on accommodation of religious practices-- see prior posting) "to ensure that verbal and written expressions of an individual’s religious beliefs are protected by the Department of Defense as an essential part of a the free exercise of religion by a member of the Armed Forces."  Section 528 also requires a similar revision in Air Force Instruction 1-1 (the Air Force's Aug. 2012 policy on free exercise and government neutrality-- see prior posting).

Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well

In Valent v. Board of Review, Department of Labor, (NJ App., June 5, 2014), the New Jersey Superior Court Appellate Division held that a nurse employed by a hospital was entitled to unemployment compensation after she was fired for refusing to obtain a flu vaccination as required by the hospital's policy.  The hospital policy allowed exemptions for religious or medical reasons, however here the nurse's objections were based on secular non-medical concerns.  The court wrote in part:

By exempting employees who can produce religion-based documentation, the employer's flu vaccination policy is clearly not exclusively driven by health-related concerns. The Board cannot therefore accept the policy as a proper basis to find appellant committed an act of insubordination of sufficient magnitude to render her disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(b)....

The religion exemption merely discriminates against an employee's right to refuse to be vaccinated based only on purely secular reasons.  Our Supreme Court has clearly cautioned that "[g]overnment may not, under the First Amendment, prefer one religion over another or religion over non-religion but must remain neutral on both scores.".... Under these circumstances, by denying appellant's application to receive unemployment benefits based only on her unwillingness to submit to the employer's religion-based policy, the Board violated appellant's rights under the First Amendment.

AP reports on the decision.

Court Grants Preliminary Injunction To For-Profits and Non-Profits Challenging Required Contraceptive Coverage

In Catholic Benefits Association LCA v. Sebelius, (WD OK, June 4, 2014), an Oklahoma federal district court granted a preliminary injunction to prevent enforcement of the contraceptive coverage mandate against both non-profit and for-profit members of the Catholic Benefits Association, a third-party administrator of health insurance plans for Catholic employers. As to for-profit employers, the court was bound by the 10th Circuit's decision in Hobby Lobby.  Finding that the non-profit employers also suffered a substantial burden on their religious exercise by completing the opt-out form that results in contraceptive coverage directly from the third-party administrator, the court said in part:

the Court’s inquiry is focused upon how the plaintiffs themselves measure their degree of complicity in an immoral act, not whether a reasonable observer would consider the plaintiffs complicit in such an act....  Here, Plaintiffs sincerely believe that in executing the form and providing it to their issuers or TPAs, they play a central role in the provision of contraceptive services to their employees—something Plaintiffs find morally repugnant. This is where the Court’s inquiry ends, as it is not the Court’s role to say Plaintiffs’ religious beliefs are mistaken.

The court concluded, however, that as to the Archdioceses of Oklahoma City and of Baltimore, no substantial burden on religious exercise existed because they are totally exempt from the contraceptive coverage mandate. AP reports on the decision. (See prior related posting.)

Cert. Petition Filed In Challenge To Navy Chaplain Corps Procedures

The Rutherford Institute announced yesterday that it has filed a petition for certiorari (full text) in In re Navy Chaplaincy. In the long-running case, the D.C. Circuit Court of Appeals denied a preliminary injunction in a challenge to the Navy's procedures for promoting members of the Navy Chaplains Corps.  Petitioners argue that the current procedures favor Catholics and liturgical Protestants over various non-liturgical denominations.

Supreme Court Denies Stay In Oregon Same-Sex Marriage Case

In May, an Oregon federal district court struck down Oregon's ban on same-sex marriage. (See prior posting.) The state declined to appeal, but the National Organization for Marriage (NOM) has been seeking to intervene as a plaintiff so it can appeal the decision.  So far it has been unsuccessful.  Yesterday the U.S. Supreme Court, in a one-sentence order, denied NOM's request for a stay of the district court's order while NOM appeals the district court's denial of its motion to intervene. All the pleadings in the complex procedural battle by NOM are here. The Oregonian reports on the Supreme Court's action, as does SCOTUSblog.

Israel's Justice Minister Officiates At Same-Sex Jewish Wedding; Marriage Not Legally Recognized

In Israel yesterday, Justice Minister Tzipi Livni officiated at a same-sex wedding ceremony, even though the marriage will not be recognized by the Israeli government.  Jerusalem Post reports that Livni conducted the ceremony for Tsach Sa'ar, a former aide to a member of the Knesset, and Guy Arad, an attorney.  The ceremony used a traditional huppah (wedding canopy), and the traditional breaking of a glass by the groom used two glasses, one for each man to break. Posting pictures on her Facebook page, Livni wrote that the ceremony was not intended to be a provocation against Judaism, but instead respected Jewish tradition.  She added, "In our eyes, Judaism is open, accepting and respects all people who were created in God's image."

Baptist, Jewish Groups Join As Plaintiffs In Challenge To North Carolina Same-Sex Marriage Ban

The United Church of Christ announced today that two national religious bodies and a number of individual clergy have joined as plaintiffs in its lawsuit that contends that North Carolina law makes it a criminal offense for a member of the clergy to conduct a same-sex marriage ceremony.  This, they argue, infringes the free exercise and expressive associational rights of clergy whose religious teachings and beliefs embrace same-sex marriage.  The national groups joining the lawsuit are the Alliance of Baptists and the Central Conference of American Rabbis.

In Modified Opinion, Court Dismisses Some Diocesan Contraceptive Coverage Claims

In Roman Catholic Archdiocese of Atlanta v. Sebelius, (ND GA, May 30, 2014), a Georgia federal district court in part granted the government's motion to reconsider its March 26 decision.  That decision, invoking RFRA, had  permanently enjoined the government from requiring Catholic Education of North Georgia and Atlanta Catholic Charities to comply with the self-certification requirements to opt out of contraceptive coverage.  In that decision, the court refused on mootness grounds to grant summary judgment to the Atlanta Archdiocese and the Savannah Diocese because they are totally exempt from the contraceptive coverage mandate.  In its May 30 opinion, the court completely dismissed these claims by the Diocesan plaintiffs, as well as dismissing the non-RFRA claims by all the plaintiffs.  The court however refused to reconsider its conclusion that the health plans involved are "church plans" under ERISA.

7th Circuit Hears Oral Arguments On Several Milwaukee Archdiocese Bankruptcy Issues

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in two cases relating to the Archdiocese of Milwaukee. The first is Official Committee of Unsecured Creditors v. Listecki (audio of oral argument). It involves a number of complex legal issues growing out of a trial court decision that $50 million in a cemetery perpetual care trust fund is unavailable to creditors, including abuse victims, in the Archdiocese's bankruptcy reorganization. (See prior posting.) Among other issues is the question of whether RFRA can be raised as a defense to action taken by a Creditors' Committee in bankruptcy.  The case on appeal also involves the refusal of the trial court judge to recuse himself in the case. (See prior posting.)

The second case is Doe v. Archdiocese of Milwaukee (audio of oral argument). It involves the question of whether the bankruptcy court was correct in dismissing the claim of a sexual abuse victim who had signed a settlement agreement with the Archdiocese after mediation.  The victim contends that he was fraudulently induced to sign the agreement.  Milwaukee Journal Sentinel reports on yesterday's arguments.

Supreme Court Denies Review In Murfreesboro Mosque Case

The U.S. Supreme Court today denied certiorari in Fisher v. Rutherford County Regional Planning Commission, (Docket No. 13-1214, cert. denied, 6/2/2014). (Order List).  In the case, a Tennessee Court of Appeals reversed a trial court's holding that Rutherford County had given inadequate public notice of a meeting which approved the site plan for the controversial Murfreesboro mosque. (See prior posting.) The Tennessee Supreme Court denied review. The first portion of the planned Islamic center was completed and occupied in August 2012. Today's Tennessean has more details.

Government Says There Is No Controversy In Unusual Contraceptive Mandate Case

An unusual lawsuit involving the Affordable Care Act contraceptive coverage mandate was filed in April by Media Research Center (MRC) with little notice given to it, at least until a May 15 press release. MRC is the parent of CNSNews. In dozens of other cases, religious non-profits have sued objecting to the requirement that they complete the self-certification form to opt out that will lead to contraceptive coverage being furnished directly by the insurer or third-party administrator. The complaint (full text) in Media Research Center v. Sebelius, (ED VA, April 11, 2014), on the other hand, alleges that plaintiff has filed the self-certification form and has sought assurance from the government that it qualifies as an "eligible organization" entitled to avail itself of the opt out. It alleges that the government has refused to provide such assurance, and asks the court to issue a declaratory judgment that Media Research Center is an "eligible organization".

Then in a second count, it seeks an injunction against enforcement of the mandate and a declaratory judgement that the regulations allowing religious non-profits to opt out violates the Establishment Clause:

89. Determining which entities qualify as "religious employers" or "eligible organizations" requires the Government to determine (1) whether the organization truly seeks to inculcate "religious values," (2) whether an objection to the Contraception Mandate is truly "religious", and (3) whether an entity truly holds itself out as a "religious" organization.

90. The Contraception Mandate thus makes the Government the arbiter of which organizations are, or are not, sufficiently "religious" to qualify for exceptions to the Contraception mandate.

91. This entails an unconstitutionally invasive inquiry into an organization's religious purpose, beliefs, and practices.

92. Furthermore, the regulations are framed to value the activities of traditional religious groups (e.g, churches, ministries, and proselytizing organizations) more highly than non-traditional religious organizations (like MRC, which defends traditional American Judeo-Christian beliefs by exposing the hypocrisies and fallacies of media attacks on those beliefs).

The government in its Memorandum In Opposition (May 23, 2014) (full text) argues that there is no controversy present:

There is no dispute that MRC has determined that it is eligible for an accommodation and has executed the self-certification. There is also no dispute that MRC has now done everything that the regulations require in order to avail itself of an accommodation. Defendants have not disputed MRC’s status as an eligible organization, and have not suggested that they have any intent or reason to do so in the future. In fact, there is no dispute of any kind relevant to the instant motion....

Qualification for an accommodation depends on a self-certification—it does not require the government to make any determination at all. Nothing in the regulations or elsewhere suggests that defendants will undertake any sort of inquiry regarding MRC’s determination. Indeed, defendants refused to make a definitive pronouncement on MRC’s eligibility for an accommodation in this case because the government cannot possibly be in the business of making the type of individualized determination that MRC seeks for every potentially eligible organization. To agree to do so here would be to open the floodgates for such requests, which could quickly overwhelm defendants’ resources.

Recent Articles of Interest

From SSRN:

• Jeffrey A. Redding, Marriage ≠ Marriage: Querying the Relevance of Equality to the Interstate Recognition of Same-Sex Relationships, (University of Miami Law Review, Forthcoming).
• D. Brian Dennison, Faith Frieda Letacie & Heather M. Pate, Confronting Child Sacrifice in Uganda: A Multi-Layered View, (Kabarak University Law Review, Forthcoming).
• Kevin J. Murphy, Administering the Ministerial Exception Post-Hosanna-Tabor: Why Contract Claims Should Not Be Barred, (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 28, No. 1, 2014).
• Brian D. Galle, How Do Nonprofit Firms Respond to Tax Policy?, (May 29, 2014).

From SmartCILP:

• Elizabeth A. Clark, Liberalism In Decline: Legislative Trends Limiting Religious Freedom In Russia and Central Asia, 22 Transnational Law & Contemporary Problems 297-342 (2013).

Fired Principal of Seventh Day Adventist School Can Pursue Her Claim

In Galetti v. Reeve, (NM App., May 28, 2014), the New Mexico Court of Appeals held that the church autonomy doctrine does not require dismissal at this time of a damage claim by a former principal and teacher at a Seventh Day Adventist school who was fired from her position. Plaintiff claims that she was harassed by by her supervisor and was fired in retaliation for filling a complaint about it. The court held that the trial court erred in dismissing her breach of contract, retaliatory discharge, intentional interference with contract, civil conspiracy, and defamation claims, saying:

The First Amendment does not immunize every legal claim against a religious institution or its members, but only those claims that are rooted in religious belief.

It added that if later it becomes apparent that any of the claims turn on matters of doctrine or church governance, summary judgment may be proper then.

Colorado Civil Rights Commission Affirms Initial Decision In Gay Wedding Cake Case

According to the Denver Post, the Colorado Civil Rights Commission on Friday affirmed the Initial Decision of an administrative law judge in Craig v. Masterpiece Cake Shop. The initial decision rejected free speech and free exercise claims, and held that a bakery and its owner illegally discriminated against a same-sex couple on the basis of sexual orientation in refusing to sell them a wedding cake. (See prior posting.)  To prevent future discrimination, in Friday's decision the Commission required bakery owner Jack Phillips to submit quarterly reports for two years on steps taken to change company policies and train employees. The bakery must also disclose the names of any clients who are turned away. [Thanks to Tom Rutledge for the lead.]