DC Circuit Rejects Establishment Clause Challenge To ACA Religious Conscience Exemption

In Cutler v. U.S. Department of Health and Human Services, DC Cir., Aug. 14, 2015), the Court of Appeals for the D.C. Circuit rejected an Establishment Clause challenge to the religious conscience exemption in the Affordable Care Act.  The ACA exempts from the individual mandate members of traditional religious groups such as the Amish and Mennonites who are conscientiously opposed to acceptance of health benefits and whose sect makes provision for their dependent members. Plaintiff Jeffrey Cutler objected for personal, not religious, reasons to purchasing insurance that complies with ACA requirements. The court said in part:

The religious exemption in the Affordable Care Act, like its counterpart in the Social Security Act, accommodates religion by exempting all believers whose faith system provides an established, alternative support network that ensures individuals will not later seek to avail themselves of the federal benefits for which they did not contribute. Cutler is correct that the Affordable Care Act withholds a similar exemption for non-believers. But the Supreme Court has repeatedly held that “the government may accommodate religious practices without violating the Establishment Clause....

Suit Says Florida Will Not Issue Correct Birth Certificates To Married Lesbian Couples

A lawsuit was filed in federal district court in Florida yesterday challenging the birth certificate policy of Florida's Bureau of Vital Statistics.  The complaint (full text) in Chin v. Armstrong, (ND FL, Aug. 13, 2015), alleges:

When a child is born to a woman who is married to another woman ... the Bureau ... will not issue accurate birth certificates listing both parents.... Instead, the Bureau will issue only a certificate that falsely indicates that the child has only one parent and that omits the mother’s spouse as the child’s second parent.

The suit contends that this infringes plaintiffs' fundamental right to marry as well as denying them equal protection of the laws. Equality Florida Action issued a press release on the filing of the lawsuit.

Kentucky Clerk Continues To Refuse To Issue Marriage Licenses, Despite Injunction

Continuing to maintain her religious objections to issuing marriage licenses to same-sex couples, Rowan County, Kentucky Clerk Kim Davis yesterday filed with the federal district court a motion (full text) to stay the court's Aug. 12 preliminary injunction pending appeal. (See prior posting.) Meanwhile, as reported by AP, Davis' office continued to refuse to issue marriage licenses. Staff said Davis was on vacation, and others in the office also authorized to issue licenses refused to do so.  The staff handed one couple a Post-it note with the phone number of Davis' lawyers, Liberty Counsel. Attorneys for plaintiffs in the case are considering asking the court to hold Davis in contempt.

Court Upholds Order Against Bakery that Refused Wedding Cake For Same-Sex Couple

In Craig v. Masterpiece Cakeshop, Inc., (CO App., Aug. 13, 2015). a Colorado appellate court, in a 64-page opinion, affirmed the decision of the Colorado Civil Rights Commission (see prior posting) that a bakery's refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law, and that the Commission's cease and desist order does not infringe the bakery owner's free exercise or free speech rights. The court rejected the bakery's claim that its refusal to create the cake was "because of" its opposition to same-sex marriage, not because of its opposition to plaintiffs' sexual orientation. It held that because same-sex marriage is entered into only (or predominately) by gays, lesbians and bisexuals, the conduct cannot be divorced from status.

The court rejected defendants' argument that requiring them to create the wedding cake would amount to unconstitutionally compelled speech:

such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.

Finally the court concluded that the cease and desist order did not violate the Christian owner's free exercise rights under the state and federal constitutions because the Colorado Law Against Discrimination is a neutral law of general applicability. Colorado Springs Gazette reports on the decision.

In Israel, Knesset Committee Rejects Agriculture Ministry Rules On Kapparot Ritual

Jerusalem Post reports today that in Israel, the  Knesset's Economic Affairs Committee has rejected rules issued by the Agriculture Ministry to strictly regulate the controversial pre-Yom Kippur ceremony of kapparot.  The ceremony involves the slaughter of a chicken after it is first lifted oven one's head as a way of symbolically shedding one's sins.  The Agriculture Ministry rules required strict limits and inspections to insure that the birds do not suffer.  However the Knesset Committee's chairman said the rules were overly stringent and would have effectively prevented the practice.  During committee hearings on the rules yesterday, a Knesset member from the United Torah Judaism Party threatened that his party would topple the coalition government if the regulations were upheld.

Guam Legislature Passes Marriage Equality and LGBT Employment Discrimination Laws

Pacific Daily News reports that the Guam legislature yesterday passed the Guam Marriage Equality Act (full text), aligning the U.S. Territory's laws with the a district court's decision in June specifically striking down Guam's same-sex marriage ban. (See prior posting.)

The legislature this week also passed the Guam Employment Nondiscrimination Act of 2015 (full text), adding bans on employment discrimination based on gender identity or expression; sexual orientation; and veteran or military status. The law includes an exemption for religious and educational institutions that are exempt from the religious discrimination provisions of Title VII of the 1964 federal Civil Rights Act. HRC Blog has more on the new law.

Court Says Kentucky Clerk Cannot Refuse To Issue Marriage Licences

In Miller v. Davis, (ED KY, Aug. 12, 2015), a Kentucky federal district court granted a preliminary injunction barring Rowan County, Kentucky Clerk Kim Davis from continuing her policy of refusing to issue all marriage licenses because of her religious objections to issuing licences to same-sex couples.  The injunction enjoins Davis from applying the policy to future marriage license requests submitted by plaintiffs in the case.

Rejecting free exercise, free speech, religious test and Kentucky Religious Freedom Act arguments, the court held:

Davis remains free to practice her Apostolic Christian beliefs. She may continue to attend church twice a week, participate in Bible Study and minister to female inmates at the Rowan County Jail. She is even free to believe that marriage is a union between one man and one woman, as many Americans do. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform as Rowan County Clerk.

The Kentucky ACLU issued a press release announcing the decision.  AP reports on the decisionl  Davis immediately filed a Notice of Appeal (full text). [Thanks to Tom Rutledge for the lead.]

Kansas Federal District Court Implements Obergefell Holding

Even though the U.S. Supreme Court decided in the Obergefell case that same-sex marriages must be recognized, lower courts still need to tie up loose to make the ruling effective nationwide.  In Marie v. Mosier, (D. KA, Aug. 10, 2015), a Kansas federal district court issued a declaratory judgment that Kansas’ same-sex marriage laws (and related policies) violate the Constitution and thus are void. However in light of claims by Kansas officials that the state is voluntarily complying with the Obergefell holding, the court delayed issuing a permanent injunction to determine whether the issue is moot, saying:

In the Court’s view, the prudent course of action is to let defendants finish updating their policies and practices to conform to Obergefell’s new rule of constitutional law. The Court thus defers, for now, the portion of plaintiffs’ summary judgment motion seeking injunctive relief. Should subsequent events reveal that the Court’s hopefulness about Kansas officials’ pledge to comply with Obergefell is misplaced, plaintiffs may supplement their motion for summary judgment on their claims for injunctive relief...

SCOTUSblog discusses the opinion.

Canadian Court Says Aboriginal Religious Freedom Not Infringed By Approval of Ski Resort

In Ktunaxa Nation Council v. Minister of Forests, Lands and Natural Resource Operations, (BC Ct. App., Aug. 6, 2015), the Court of Appeal for the Canadian province of British Columbia held that the provincial government did not infringe the religious freedom of the aboriginal Ktunaxa Nation when it granted Glacier Resorts, Ltd. the right to build a year-round ski resort in the Jumbo Valley region of southeastern British Columbia’s Purcell Mountains. A number of accommodations in the plans were made to accommodate the Ktunaxa. However, according to the Ktunaxa:

the proposed resort lies at the heart of a sacred area of paramount spiritual importance within their claimed traditional territory, as it is the Grizzly Bear Spirit’s home. They claimed that if the development of the resort was permitted, the Spirit would leave, and they would no longer be able to receive physical or spiritual assistance and guidance from the Spirit, which would have a profound negative impact on their identity and culture.

The court held that Sec. 2(a) of the Canadian Charter of Rights and Freedoms that protects freedom of conscience and religion

does not apply to protect the vitality of religious communities where the vitality of the community is predicated on the assertion by a religious group that, to preserve the communal dimension of its religious beliefs, others are required to act or refrain from acting and behave in a manner consistent with a belief that they do not share.

The Townsman reports on the decision.

Challenge To A.A. Requirerment In Probationary Massage License Survives Motion To Dismiss

In Sundquist v. State of Nebraska, (D NE, Aug. 10, 2015), plaintiff Marvin Sundquist who held a probationary license to practice massage therapy in Nebraska challenged the constitutionality of a requirement that he attend Alcoholics Anonymous meetings in order to keep his probationary license.  He claimed religious objections to AA which has substantial religious components in it.  His licensing probation compliance monitor refused his proposed secular alternative.  A Nebraska federal district court held:

In sum, the Court finds that Sundquist has alleged a plausible claim under the Establishment Clause, and that defendants Vierk and Schuldt are not entitled to qualified immunity. It remains to be seen, of course, whether Sundquist can actually prove his claim and prove that he suffered actual damages—but he should have the opportunity to do so. 

Indian Court Bars Jain Practice of Santhara As Suicide

In India, the Rajasthan High Court, acting on a public interest petition, held that Santhara, a traditional Jain practice of starving oneself to death to attain salvation (background), is suicide under the Indian Penal Code. Thus Sec. 306 outlawing abeting of suicide and Section 309 outlawing attempted suicide apply. The court said in part:

The respondents failed to establish that Santhara is an essential religious practice without which the following of Jain religion is not permissible.

According to the Calcutta Telegraph, the activist who filed the suit says: "... Santhara is a way devised by the family to get rid of the economic burden of caring for its elderly." Jain organizations say they will appeal the decision.

Ohio Supreme Court Board Issues Advisory Opinion On Judges' Refusal To Perform Same-Sex Marriages

The Ohio Supreme Court's Board of Professional Conduct has issued an advisory opinion on Judicial Performance of Civil Marriages of Same-Sex Couples.  In Opinion 2015-1 (Aug. 7, 2015), the Board concluded:

A judge who performs civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages, based upon his or her personal, moral, and religious beliefs, acts contrary to the judicial oath of office and Jud. Cond. R. 1.1, 1.2, 2.2, 2.3, 2.4, 2.11, and Prof. Cond. R. 8.4(g).

A judge who takes the position that he or she will discontinue performing all marriages, in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs, may be interpreted as manifesting an improper bias or prejudice toward a particular class. The judge’s decision also may raise reasonable questions about his or her impartiality in legal proceedings where sexual orientation is at issue and consequently would require disqualification under Jud. Cond. R. 2.11.

The Board refused to address questions regarding assignment or rotation of judges conducting marriages at a court.

Yesterday's Columbus Dispatch reported on the advisory opinion. The issue was highlighted in Ohio last month when Toledo Municipal Court Judge C. Allen McConnell's bailiff told a same-sex couple who had been issued a marriage license that McConnell does not do "these types of marriages." (See prior posting.)

Supreme Court Is Asked To Review New Jersey Reparative Therapy Ban

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Doe v. Governor of New Jersey.  In the case, the 3rd Circuit Court of Appeals  rejected a constitutional challenge to a New Jersey statute that bans "sexual orientation change efforts" counseling for minors. Liberty Counsel issued a press release announcing the filing of the petition for review.

Judge Orders Marriage and Writing Bible Verses As Conditions of Probation

KLTV News reported last week on the July sentencing hearing in Smith County, Texas of  Josten Bundy for assaulting his girlfriend Elizabeth Jayne's former boyfriend. The two got into a fight when the former boyfriend said disrespectful things about  Elizabeth.  At the sentencing hearing, Judge Randall Rogers said he would grant probation instead of 15 days in jail if Bundy married Jayne within 30 days.  The probation terms also included writing Bible verses and getting counseling.  Yesterday Americans United released a letter (full text) that it sent to Judge Rogers arguing that the probation terms violate the Establishment Clause and the right to privacy.

UPDATE: The Freedom From Religion Foundation announced that on Aug. 13 it filed a formal complaint against Judge Rogers with the Texas State Commission on Judicial Conduct.

Marijuana Possession Conviction of Rastafarian Does Not Violate Free Exercise Clause

In State of New Jersey v. Forchion, (NJ App., Aug. 7, 2015), the New Jersey Superior Court Appellate Division in an appeal of a conviction for possessing marijuana rejected a claim by a Rastafarian that his First Amendment free exercise rights are infringed by criminalizing the possession of cannabis which is a sacrament used in his faith.  The court held that the statute is neutral and generally applicable, and "the fact that marijuana may be medically prescribed for some New Jersey citizens does not create a secular exemption that triggers strict scrutiny analysis."

Article Explores Barriers To Abortion Rights For Jail Inmates

Truthout yesterday published a lengthy investigative article on the barriers sometimes thrown up by jails to prevent women inmates from obtaining abortions. The article begins:

Should sheriffs and other jail staff be allowed to decide whether a woman can obtain an abortion? When a woman is arrested and incarcerated, should her reproductive rights be stripped from her? Based on their actions against a woman in custody this past month, Rick Singleton, the sheriff of Lauderdale County Jail in Florence, Alabama, and district attorney Chris Connolly seem to think so. They may also have set a precedent for any other law enforcement seeking to prevent women from seeking abortions—throw up enough obstacles and she'll decide to carry the pregnancy to term.

Houston Pastors' Group Sues Mayor For Legal Fees and Damages In Fight Over Equal Rights Ordinance

Now that the Texas Supreme Court has ordered the city of Houston to place a referendum on the ballot that seeks to repeal Houston's Equal Rights Ordinance (HERO) (see prior posting), the Houston Area Pastors Council announced last week that it has filed a lawsuit in state court against Houston, Texas mayor Annise Parker to recover legal fees and damages it incurred in the litigation.  Much of the opposition to HERO came from pastors who objected to its protection of transgender rights, and the mayor created particular controversy by initially subpoenaing the pastors' sermons and other documents  relating to their support of the ordinance. (See prior posting.) Houston Chronicle and the Houston Memorial Examiner report on this latest lawsuit which accuses Mayor Parker with interfering with citizens' right to vote.

RLUIPA Lawsuit Challenges Denial of Permit To Christian School

According to the Livingston (MI) Daily, on Friday Livingston Christian Schools filed a RLUIPA lawsuit in federal district court against Genoa County, Michigan over Genoa Township's denial to it of a special use permit that would have allowed it to relocate to the Brighton Church of the Nazarene facilities.  In turn, Light of the World Academy planned to move into the facility in Pickney that Livingston Christian would vacate. The township board voted 4-3 to deny the permit that had been recommended by the planning commission because of traffic concerns.

Recent Articles of Interest

From SSRN:

• Rex Ahdar, A Real Threat or a Mere Shadow? School Chaplaincy Programs and the Secular State, (University of Queensland Law Journal, vol 33. no 1 (2014): 29-41).
• Joshua C. Tate, Episcopal Power and Royal Jurisdiction in Angevin England, (Studies in Canon Law and Common Law in Honor of R.H. Helmholz, Robbins Collection Studies in Comparative Legal History (Troy L. Harris ed., 2015), pp. 15-26).
• Jayanth K. Krishnan & Patrick W. Thomas, Surveying Key Aspects of Sociolegal Scholarship on India: An Overview, (Annual Review of Law and Social Science (2015, Forthcoming)).
• Christopher Tomlins, Debt, Death, and Redemption: Toward a Soterial-Legal History of the Turner Rebellion, (David S. Cowan and Dan Wincott, editors, Exploring the Legal in Socio-Legal Studies (London: Palgrave-Macmillan), January 2016, Forthcoming).
• Erwin Chemerinsky & Michele Goodwin, Compulsory Vaccination Laws are Constitutional, (Northwestern University Law Review, Vol. 110, 2015/16 Forthcoming).
• Christopher C. Lund, Leaving Disestablishment to the Political Process, (Duke Journal of Constitutional Law & Public Policy, Vol. 10, p. 45, 2014).
• Sarah Beth D'Alessandro, Commerce in Human Organs: A Study of Jewish Legal Themes Underlying a Contemporary Controversy, (August 5, 2015).
• Daniel Golebiewski, Roman Catholic Traditions and LGBT Rights in Poland and France, (Rights for All? Sexual Orientation, Religious Traditions, and the Challenge of Inclusion The Center for International Human Rights, John Jay College, February 2015).
• Hillel Y. Levin, Allan J. Jacobs & Kavita Arora, To Accommodate or Not to Accommodate: (When) Should the State Regulate Religion to Protect the Rights of Children and Third Parties?, (UGA Legal Studies Research Paper No. 2016-24 (Aug. 2015)).

From SSRN (Marriage):

• Robin Fretwell Wilson & Anthony Michael Kreis, Embracing Compromise: Marriage Equality and Religious Liberty in the Political Process, (Georgetown Journal of Gender and the Law, Vol. 15, No. 485, 2014).
• Doron M. Kalir, Same-Sex Marriage and Jewish Law: Time for a New Paradigm? (Cleveland-Marshall Legal Studies Paper No. 15-284, Aug. 2015).
• Toni M. Massaro, The Lawfulness of the Same-Sex Marriage Decisions: Charles Black on Obergefell, Arizona Legal Studies Discussion Paper No. 15-27 (July 2015).

From SSRN (Islam):

• Arolda Elbasani & Olivier Roy, Islam in the Post-Communist Balkans: Alternative Pathways to God, (Southeast European and Black Sea Studies, Online First, Forthcoming).
• Arolda Elbasani, Islam and Democracy at the Fringes of Europe: The Role of Useful Historical Legacies, (Politics and Religion 8 (2), 334-357, 2015).
• J. Robert Brown, Secularism, Sharia, and the Turkish Financial Markets, (Brooklyn Journal of International Law, Vol. 40, No. 2, 2015).

From SmartCILP and elsewhere:

• Dallan F. Flake, Bearing Burdens: Religious Accommodations that Adversely Affect Coworker Morale, 76 Ohio State Law Journal 169-216 (2015).
• Leslie C. Griffin, Hobby Lobby: The Crafty Case that Threatens Women's Rights and Religious Freedom, [Abstract], 42 Hastings Constitutional Law Quarterly 641-693 (2015).
• Eric Rassbach, Is Hobby Lobby Really a Brave New World? Litigation Truths About Religious Exercise by For-Profit Organizations, [Abstract], 42 Hastings Constitutional Law Quarterly 625-639 (2015).
• Gerald Walpin, Five Justices Have Transformed the First Amendment's Freedom of Religion to Freedom from Religion, 31 Touro Law Review 187-220 (2015).
• Richard W. Garnett, John D. Inazu & Michael W. McConnell, How to Protect Endangered Religious Groups You Admire, Christianity Today, (Aug. 4, 2015).
• Dodd-Frank, the Financial Crisis, and a Christian View of Financial Markets. Articles by Paul J. Foley, Tory L. Lucas and student Joshua C. Dawson; abstract by Rodney Chrisman; note by Kaitlyn E. Evans. 9 Liberty University Law Review 445-595 (2015).

IRS Seeks Nominees For Tax Exempt Advisory Committee

The Internal Revenue Service has issued a Notice And Request For Applicants Or Nominations for vacancies on the Advisory Committee on Tax Exempt and Government Entities. (Federal Register, Aug. 10, 2015). Applications or nominations must be received by Sept. 4.