Cert Filed In Challenge By Pharmacies To Required Filling of Emergency Contraception RX

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Stormans Inc. v. Wiesman, (cert. filed, 1/4/2016).  In the case, the U.S. 9th Circuit Court of Appeals upheld rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require pharmacies to deliver all prescription medications, even if the owner has a religious objection. An individual pharmacist with religious objections may refuse to fill a prescription only if another pharmacist working for the pharmacy does so. (See prior posting.) ADF issued a press release announcing the filing of the petition.

Religious Health Care Ministries Show Growth

The Wall Street Journal this morning reports that a growing number of people have been moving to "health care ministries" since the enactment of the Affordable Care Act.  The number of participants in these religious health-sharing arrangements has grown from 200,000 to 500,000 since 2010.  According to the report:

The ministries, which operate outside the insurance system and aren’t regulated by states, provide a health-care cost-sharing arrangement among people with similarly held beliefs. Their membership growth has been spurred by an Affordable Care Act provision allowing participants in eligible ministries to avoid fines for not buying insurance....

The membership growth was largely unanticipated by ministry officials when the groups obtained an exception to the law. Only ministries in continuous operation since at least Dec. 31, 1999 are exempt from the ACA. The carve-out was intended to satisfy what at the time were relatively small religious groups that argued that their nonparticipation was a matter of religious freedom.

Officials are concerned both about the risk to participants from the unregulated operation of the arrangements, and about their impact on the Affordable Care Act insurance pool. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Lincoln L. Davies, Energy, Consumption, and the Amorality of Energy Law, (109 AJIL Unbound 147 (2015)).
• Michal Tamir, The Freedom to Exclude: The Case of the Israeli Society, (Israel Law Review 49(1), 2016, Forthcoming).
• Leonid Sykiainen, Sharia Courts: Modern Practice and Prospectives in Russia, (Higher School of Economics Research Paper No. WP BRP 60/LAW/2015).

From SmartCILP and elsewhere:

• James A. Sonne, Religious Liberty, Clinical Education, and the Art of Building Bridges, 22 Clinical Law Review 251-300 (2015).
• Jennifer Fredette, Becoming a Threat: The Burqa and the Contestation Over Public Morality Law in France, [Abstract], 40 Law & Social Inquiry 585-610 (2015).
• Mark A. Lemley, Melville B. Nimmer Memorial Lecture. Faith-Based Intellectual Property. 62 UCLA Law Review Rev. 1328-1346 (2015).
• McNulty, Patrick J. and Adam D. Zenor, Corporate Free Exercise of Religion and the Interpretation of Congressional Intent: Where Will It End?, 39 Southern Illinois University Law Journal 475-513 (2015).
• Twentieth Annual International Law and Religion Symposium: Varieties of Secularism, Religion, and the Law. Speeches by Francoise Tulkens, Malcolm D. Evans and Mark Hill; articles by Louis-Leon Christians, David Little and Andrea Pin. 2014 BYU Law Review 509-633.
• Kevin C. Walsh, Addressing Three Problems in Commentary on Catholics at the Supreme Court by Reference to Three Decades of Catholic Bishops' Amicus Briefs, 26 Stanford Law & Policy Review 411-35 (2015).
• Aliza Plener Cover, Archetypes of Faith: How Americans See, and Believe in, Their Constitution, 26 Stanford Law & Policy Review 555-96 (2015).

Recent Prisoner Free Exercise Cases

In Harvey v. Gonzalez, 2015 U.S. Dist. LEXIS 172056 (D CO, Dec. 28, 2015), a Colorado federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 172057, Nov. 24, 2015) and permitted a Muslim inmate to move ahead with this complaint that his copy of the Qur'an was confiscated and he was refused a replacement copy.

In Hill v. Gramiak, 2015 U.S. Dist. LEXIS 172150 (SD GA, Dec. 28, 2015), a Georgia federal magistrate judge recommended permitting a Buddhist inmate to move ahead with complaints that the mail room refused to deliver religious literature sent to him, while prisoners of other faiths could receive a Bible or a Qur'an.

In Wagner v. Worsham, 2015 U.S. Dist. LEXIS 172704 (ED MO, Dec. 29, 2015), a Missouri federal district court dismissed a Mormon inmate's complaint that prison authorities classify the Church of Jesus Christ of Latter-day Saints as a General Christian group, instead of giving it a separate category.

In Hoskins v. Red Onion State Prison, 2015 U.S. Dist. LEXIS 173107 (WD VA, Dec. 30, 2015), a Virginia federal district court dismissed an inmate's complaints that there was a delay in delivering religious materials mailed to him, that the prison does not provide Jewish or Messianic Jewish services, and the chaplain did not provide him with a number of religious items he requested.

In Perez v. Watts, 2015 U.S. Dist. LEXIS 173384 (SD GA, Dec. 31, 2015), a Georgia federal magistrate judge recommended allowing an inmate to move ahead (except on certain damage claims) on his complaint that prison authorities truncated the "Spiritual Mass" ceremony for Santeria practitioners by not allowing each individual a half cut cigar, and authorities refused to order Santeria supplies including bead necklaces with Ache.

Fired Police Officer's Free Exercise Rights Not Infringed By Order Not To Associate With Gang Member

In Cuevas v. City of Campbell, (CA App., Dec. 23, 2015), a California appellate court held that the free exercise and expressive association rights of police officer  Sammy Cuevas were not infringed when he was terminated, in part for contact with known gang member Joseph Aguilera-- who had been married to Cuevas' cousin.  Cuevas argued unsuccessfully that because he is the godfather of Aguilera's child and they are both Catholic, the order to not associate violated their right to practice their faith together.

Muslim Employees Walk Out of Meat Packing Plant In Dispute Over Prayer Breaks

Media are reporting this week on the firing of between 150 and 180 Somali Muslim workers at a Cargill meat packing plant in Fort Morgan, Colorado.  Denver 7 News and Minneapolis Star Tribune report that the action grew out of a dispute that developed when a new shift manager told 11 employees that they could not all take a prayer break at the same time. Ten of these workers resigned, and 177 other workers either did not show up, or clocked in and left, the next day in support.  When the protesters did not return or call in for three days they were terminated.  Apparently the parties are still in touch over the possibility of the employees getting their jobs back. [Thanks to Scott Mange for the lead.]

Suit Challenges Requirement of Marriage License For Religious Ceremony

While it might seem that the Supreme Court's Obergefell decision last June mooted the many pending cases seeking to make inroads into now invalid bans on same-sex marriage, the Detroit News reported yesterday on a lawsuit that shows this is not universally so.  A year ago, Detroit minister Neil Patrick Carrick filed a lawsuit in Michigan federal district court challenging two Michigan statutes which at that time effectively fined clergy for performing same-sex marriages. (See prior posting.) MCL Sec. 551.14  imposes a $500 penalty on any member of the clergy or other person who "knowingly joins any persons in marriage" in violation of Michigan law. MCL Sec. 551.106 provides that : "Any clergyman or magistrate who shall join together in marriage parties who have not delivered to him a properly issued license ... shall be adjudged guilty of a misdemeanor" and fined $100 or sentenced to 90 days in jail.

The complaint (full text) in Carrick v. Snyder, (ED MI, filed 1/12/2015). alleged that these provisions violate the 1st Amendment free exercise and expressive association rights of clergy whose faith and religious beliefs allow them to perform marriages that are not authorized by civil law.  In May 2015, the district court entered an order holding the case in abeyance as the Supreme Court considered the issue of same-sex marriage.  In September, after the Supreme Court's Obergefell decision, the district court reactivated the case (Order lifting stay).  While the challenged statutory provisions no longer totally bar same-sex marriages, they still threaten clergy with fines if they "join in marriage" a couple that has not obtained a marriage license.  On December 8, the district court, seeking to avoid the constitutional question, issued an Order (full text) calling for additional briefing on whether these penalties under state law apply to "purely private ceremonies that are not intended to give legal effect to a marriage."

Plaintiff's attorney pointed out the importance of the issue to "elderly or widowed couples who want to marry, but are afraid they will lose their Social Security benefits if they are legally wed."

Wisconsin Lawmaker Stirs Controversy With Proselytizing Christmas Message To Constituents

The Forward reports today on the continuing controversy over the religious video Christmas greeting sent out last month by Wisconsin Assembly member Rep. Scott Allen to his constituents.  The almost 2-minute video was shot by Allen in a state-owned studio in the Capitol building and was sent to constituents through the state e-mail system.  In the video, Allen says in part:

To me and my fellow Christians, celebrating the birth of our Savior, our Emmanuel, well, it is one of the most important celebrations of the year. For those who may watch this who are not Christians, I invite you to consider the hope offered by the Prince of Peace.

American Jewish Committee general counsel Marc Stern says the video clearly crosses the line into proselytizing. Allen says his message was not directed at constituents who held other religious beliefs, but was targeted at those with no belief.

9th Circuit Upholds California AG's Collection of Donors' Names Against "As Applied" Challenge

As previously reported, in June the U.S. 9th Circuit Court of Appeals upheld against a facial challenge California's administrative rule requiring non-profit organizations that wish to solicit tax deductible contributions in the state to file an annual report that includes an unredacted IRS Form 990 Schedule B, the names and contributions of significant donors. The filings are not made public by the state. Now in Americans For Prosperity Foundation v. Harris, (9th Cir., Dec. 29, 2015), the 9th Circuit also rejected an "as-applied" challenge to the California law. This challenge was brought by Americans for Prosperity (a libertarian advocacy group funded in large part by the Koch brothers) and by the Thomas More Law Center  (which describes itself as an advocacy group which "defends and promotes America’s Judeo-Christian heritage and moral values"). According to the court:

First, the plaintiffs have not shown the demand for nonpublic disclosure of their Schedule B forms to the Attorney General has actually chilled protected conduct or would be likely to do so.... Second, the plaintiffs have not shown a “reasonable probability” of harassment at the hands of the state if the Attorney General is permitted to collect their Schedule B forms for nonpublic use.

The 9th Circuit, however, upheld the district court's preliminary injunction barring the California Attorney General from making the Schedule B's public, saying in part:

Because the Attorney General agrees with the plaintiffs that Schedule B information should not be publicly disclosed, and because she is in the process of promulgating a regulation prohibiting such public disclosure, a preliminary injunction prohibiting public disclosure of donor information promotes, rather than undermines, the state’s policy. 

Happy New Year 2016 !

Dear Religion Clause Readers:

Happy New Year 2016!  It is difficult to believe that I have been blogging on Religion Clause for over ten years, and have posted over 18,000 stories.  As I have been reminded, this means that for those who rely on Religion Clause as a resource, there are many who do not remember the time when there was not a central source for keeping current on church-state and religious liberty developments.

Last year was important.  Issues surrounding same-sex marriage and responses to it riveted the attention of much of the U.S. population.  The challenge by religious non-profits to the Obamacare regulations on contraceptive coverage brought to the fore the question of whether courts must give complete deference to assertions by individuals and groups that their religious exercise has been substantially burdened.  The Supreme Court gave unusual attention to civil rights claims by prisoners, including their religious freedom claims.  Increasing concern about ISIS-inspired terrorism tempted some-- including some seeking the highest office in the land-- to question whether America's traditional welcome to all religious believers (and non-believers) is as firmly established as we had once believed.

Religion Clause has attempted to provide the raw materials-- as objectively as possible-- so that readers can make informed judgments on the difficult policy decisions facing us.  And I have continued to cover parallel issues arising outside the United States in order to give additional perspective.

2016 promises to be an equally challenging year.  Many of the high profile issues of last year will remain with us.  In addition there will likely be some new ones.  How will religion factor into the Presidential race?  What are the implications of establishment clause and free exercise clashes being increasingly handled by well-funded advocacy groups that are repeat players before the courts, legislatures and local government officials?  Will transgender rights be the next battle in the culture wars that will become a religious as well as a civil rights issue?

And then there is often a "sleeper"-- an issue that becomes unexpectedly dominant.  My nomination for that in 2016 is the question of whether the retirement plans of many religiously-affiliated healthcare organizations will, as the 3rd Circuit recently held, be found not to qualify for the "church plan" exemption from ERISA on which they have relied.  Many of these plans will be underfunded by tens or hundreds of millions of dollars if they are required to comply with ERISA.  What kind of financial risk will that pose to them?  Many of these healthcare organizations have complicated relationships with a diocese or other church body of their denomination.  Will liability for underfunding, or for non-compliance with other ERISA requirements, jeopardize assets of the affiliated church bodies?

As we enter 2016, I want to again thank all of you who read Religion Clause-- both long-time followers and those who have discovered the blog more recently. Religion Clause's established format of neutrality, broad coverage and links to extensive primary source material has produced a loyal readership.  Often Religion Clause carries a story well before mainstream media feature it. The world of social media continues to evolve.  Increasing numbers of readers follow Religion Clause on Twitter or Facebook, and perhaps in other ways as well.  Meanwhile, the ability to comment on postings, while available, apparently has little attraction to readers-- other than the occasional spammer who evades my anti-spam efforts.  I am always eager to receive suggestions of other formats that would be useful.

And thanks to all of you who send me leads or corrections. Your input is important in maintaining completeness and accuracy. I read all of your e-mails and comments and appreciate receiving them, even though time constraints often prevent me from replying individually. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want to be mentioned, I will be happy to honor that request if you let me know when sending me information.

I continue to be pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, and others working professionally dealing with church-state relations and religious liberty concerns.  I encourage you to recommend Religion Clause to colleagues and friends who might find it of interest.

Finally, I remind you that the Religion Clause sidebar contains links to a wealth of resources.  If you find broken links on the sidebar, please let me know.

Best wishes for 2016!  Feel free to contact me by e-mail (religionclause@gmail.com) or through comments to this or other posts throughout the year.

Howard M. Friedman

New Mexico Supreme Court Files Amended Opinion Again Striking Down Textbook Loan Program

Last week, the New Mexico Supreme Court denied a motion for a rehearing in its recent Blaine Amendment decision (see prior posting) invalidating the state statute that provides for the loan of secular textbooks to private and parochial school students, but substituted a new opinion for the one handed down last month. The primary change in its new opinion in Moses v. Skandera, (NM Sup. Ct., Dec. 23, 2015), is the addition of paragraphs 28 and 29 rejecting the argument that since funding for the textbook program comes from payments to the state under the federal Mineral Lands Leasing Act, this preempts state constitutional limits.  The court said in part:

The MLLA has neither expressly nor impliedly preempted the application of Article XII, Section 3 because restricting funds appropriated for educational purposes to public schools is not incompatible with the purposes announced in the MLLA. Thus, Intervenors’ argument that funds from the MLLA that are used for the Instructional Material Fund are federal funds which are “not subject to state constitutional limitations” is without merit.

Poll On Attitudes Toward Religious Liberty

AP reported yesterday on the release of a new AP-NORC poll that shows Americans do not value religious liberty equally for all religious groups:

Solid majorities said it was extremely or very important for the U.S. to uphold religious freedom in general. However, the percentages varied dramatically when respondents were asked about specific faith traditions, according to a poll by The Associated Press and the NORC Center for Public Affairs Research.

Eighty-two percent said religious liberty protections were important for Christians, compared with 61 percent who said the same for Muslims. About seven in 10 said preserving Jews' religious freedom was important, while 67 percent said so of Mormons. People who identified with no religion were ranked about even with Muslims in needing support to live out their beliefs.

Malaysia Court of Appeal Says Civil Courts Have No Jurisdiction Over Religious Conversions

Malaysia Insider reports that yesterday in a 2-1 decision, Malaysia's Court of Appeal held that civil courts have no jurisdiction to void a contested conversion of three children to Islam. Only Shariah courts have jurisdiction. The Ipoh High Court (a civil court) had held that the conversion certificate entered by the Registrar of Conversion did not comply with Perak Shariah law because the conversion application was made unilaterally by the children's father, instead of by the children with the father's consent.  The children's mother, now divorced from the father, has also been battling with the father over custody of the children.

3rd Circuit Holds Catholic Healthcare Retirement Plan Is Not Exempt From ERISA

In a decision that could have major financial implications for religiously affiliated hospitals and healthcare systems, the U.S. 3rd Circuit Court of Appeals yesterday gave the first appellate level victory to employees who, in a series of cases, are claiming that various healthcare system retirement plans do not qualify for the "church plan" exemption from ERISA.  In Kaplan v. St. Peters Healthcare System, (3d Cir., Dec. 29, 2015), the court read the definitional provisions in the statute literally and held that to qualify as a "church plan," the retirement plan, while it may be "maintained" by the religiously-affiliated healthcare system whose employees are covered, must have been "established" by a church or convention or association of churches.  Since St. Peters' plan was created by the healthcare system, and not by the Catholic diocese, it does not qualify.  In so holding, the court refused to give deference to IRS determination that St. Peters' and plans like it are "church plans."  Without the exemption, the plan is subject to the fiduciary and funding requirements of ERISA.  As of 2014, St. Peters Healthcare retirement plan was underfunded by $30 million. Pensions & Investments reports on the decision.

Israeli Court Avoids Decision on Definition of Prayer on Temple Mount

In Israel on Monday, a Jerusalem district court reversed the order of a Magistrate's Court that had barred right-wing Jewish activist Yehuda Etzion from visiting the Temple Mount compound for 15 days. Haaretz and a press release from Honenu report on developments.  Etzion is founder of Hai VeKayam, a group that advocates allowing Jewish prayer on the Temple Mount where Muslim holy sites are located. Agreements between Israel, the Palestinians and Jordan call for maintaining the "status quo" at the Temple Mount site-- which means no Jewish prayer there.  On Dec. 22, authorities detained Etzion for walking on the Temple Mount with his arms raised, concluding that this violated the status quo.  On appeal, District Court judge Ram Vinograd said he did not need to definitively rule on the definition of an act of prayer since there was not fair warning to Etzion that police had changed their past interpretations to now ban raised arms.  During an earlier visit, police had not stopped Etzion from similar action. The judge commented on the problem of line drawing-- would merely lifting one's eyes upwards, or covering one's head, be enough to violate the prayer ban.

Etzion, obviously pushing the envelope, after the appeals court ruling described his action on the Temple Mount as follows:

With this act I sought to express a connection with the Temple Mount and the One who resides there, and I kept in my memory also the prayer of King Solomon, who spread his palms upwards. 

Bakery Owners Pay Judgment To Pursue Appeal In Same-Sex Wedding Cake Case

The Willamette Week reported Monday that the Oregon bakery that had been ordered by the state Bureau of Labor and Industries to pay $135,000 in damages for refusing to bake a cake for a same-sex commitment ceremony, in order to appeal the ruling, paid the judgment (plus interest) on Monday. The owners of Sweet Cakes by Melissa decided to pay the $136,927 now due, instead of securing an appeal bond for the amount of the judgment. (See prior related posting.)  Supporters of the bakery owners have contributed at least $517,000 to them through crowdsourcing websites.

Suit Challenges Virginia School's Addition of Gender Identity To Non-Discrimination Rules

As reported by the Washington Post, last week a suit was filed in state court in Virginia challenging the Fairfax County School Board's addition of "gender identity" to its non-discrimination policy.  The change was made to comply with federal interpretation of Title IX of the 1964 Civil Rights Act.  The complaint (full text) (Liberty Counsel press release) in Lafferty v. School Board of Fairfax County, (VA Cir. Ct., filed 12/21/2015), contends that the change violates a Virginia statute that prohibits local jurisdictions from enacting broader anti-discrimination protections than are accorded by state law. A state Attorney General's Opinion, however, had concluded that school boards do have the power to bar discrimination on the basis of sexual orientation and gender identity.

The suit was brought by the head of the Traditional Values Coalition and by an anonymous high school student identified in the complaint as Jack Doe.  The suit contends:

Because the new policy and code of conduct are not sufficiently defined, Jack Doe has no way of knowing whether he can, for example, question someone who appears to be a girl using the boys’ restroom or locker room, refer to someone by a certain pronoun or even compliment someone on his/her attire without being subject to discipline for “discrimination.”...

Jack Doe is terrified of the thought of having to share intimate spaces with students who have the physical features of a girl, seeing such conduct as an invasion of his privacy, invasion of fellow students’ privacy and a violation of the though[t] patterns and understanding about male and female relationships which are part of his cultural values. 

Second Lawsuit Challenges Exclusion of Parochial Schools From Montana Tax Credit Plan

As previously reported, earlier this month a state court lawsuit was filed in Montana challenging an administrative rule that excludes religiously affiliated schools from participating in the state's new law that provides state income tax credits for contributions to student scholarship organizations.  This week a second challenge was filed, this time a lawsuit in federal court brought by parents and by the Association of Christian Schools International. (Pacific Legal Foundation press release.) The complaint (full text) in Armstrong v. Kadas, (D MT, filed 12/28/2015), alleges that enforcement of the administrative rule violates the U.S. Constitution's establishment, free exercise and equal protection clauses, as well as Montana law. Great Falls Tribune reports on the lawsuit.

Priest Charging Injury From False Accusations May Proceed With Most of His Claims

This week, a Missouri federal district court handed down two decisions in a suit by a Catholic priest who claims he has been falsely accused of child sexual abuse.  According to the court:

Plaintiff Reverend Xiu Hui “Joseph” Jiang is a Chinese-born ordained Catholic priest in the Archdiocese of St. Louis. Jiang asserts that ... A.M. and N.M. falsely accused him of sexually abusing their minor son for the purpose of monetary gain. Jiang also asserts that [two] officers of the St. Louis Metropolitan Police Department, conducted an inadequate investigation of the abuse allegations and targeted plaintiff for prosecution because of his religion and ethnicity. He alleges that [the City] ... failed to properly train the officers.... Jiang further asserts that ... Survivors Network of Those Abused by Priests ... led a public smear campaign against him which included making false accusations of child molestation in the media. The criminal case against Jiang ... was voluntarily dismissed shortly before trial....

According to the complaint ... had they conducted a more thorough investigation, they would have learned that the minor child had made unfounded claims of sexual abuse in the past and that he was mentally and emotionally troubled; that defendants A.M. and N.M. had a history of making unfounded allegations against the Catholic Church for financial gain; and that there were circumstances that made it impossible for plaintiff to have committed the abuse as alleged.

In Jiang v. Porter I, (ED MO, Dec. 28, 2015), the court denied SNAP's motion to dismiss the conspiracy, defamation and infliction of emotional distress claims against it, and concluded that the lawsuit is not covered by Missouri's anti-SLAPP statute.

In Jiang v. Porter II, (ED MO, Dec. 28, 2015), the court dismissed the vicarious liability,  unconstitutional policy and practice, failure to train and supervise, and infliction of emotional distress claims against the City of St. Louis.  However the court refused to dismiss equal protection, due process, abuse of process, infliction of emotional distress and civil rights conspiracy claims against two police officers.

Story of Justice McReynolds' Anti-Semitic Photo Refusal Is Debunked

National Law Journal reported yesterday that research by a staffer in the U.S. Supreme Court curator's office has proven false an often-repeated story that no 1924 photograph of Supreme Court justices was taken because the anti-Semitic Justice James McReynolds' would not sit next to Justice Louis Brandeis for the photo.  It turns out that group photos are taken only when a new justice comes onto the court, which was not the case in 1924.  It was the case however that one photo studio that was passed over for the 1923 photo lobbied Chief Justice Taft for an extra photo in 1924, and McReynolds (known for his disagreeable temperament) balked at the idea.  McReynolds does appear in nine other group photos between 1914 and 1941 with Jewish justices, though never next to them because the tradition of seating-by-seniority did not place him there.