Religion Clause

Tuesday, November 08, 2016

Priest's Anti-Abortion Video Raises Questions On Limits For Advocacy

On Sunday just ahead of Tuesday's presidential election, Rev. Frank Pavone, national director of the activist anti-abortion group Priests for Life, posted a live video on Facebook which, as reported by the Washington Post, "raised questions for some about what is appropriate antiabortion and political activism in the church." The video in which Pavone endorsed Donald Trump for president because of the anti-abortion Republican platform showed an actual aborted fetus on the altar. Pavone said the fetus was given to him for burial by a pathologist. In a post on the blog of the Archdiocese of New York, a spokesman strongly criticized Pavone, saying in part:

A human being has been sacrificed and the altar of God has been desecrated, all for politics. Everyone who respects the dignity of every human person should reject and disavow this atrocity.

A post on Friendly Atheist blog includes a link to Pavone's full 44 minute video.

Another Court Challenge To HHS Rules On Medical Services For Transgender Individuals

Following on a lawsuit filed in August (see prior posting), yesterday a lawsuit was filed by different plaintiffs challenging new rules (full text) adopted by the Department of Health and Human Services in May. The rules bar discrimination on the basis of gender identity in the delivery of medical services by, among others, health facilities receiving federal financial assistance. The complaint (full text) in Religious Sisters of Mercy v. Burwell, (D ND, filed 11/7/2016), filed by a religious order, a health care system, a Catholic university with a nursing program, and the state of North Dakota, alleges that the new rules violate various statutory and constitutional provisions. It says in part:

The Regulation not only forces healthcare professionals to violate their medical judgment, it also forces them to violate their deeply held religious beliefs.... The Regulation also undermines the longstanding sovereign power of States such as North Dakota to regulate healthcare, ensure appropriate standards of medical judgment, and protect its citizens’ constitutional and civil rights.

Becket Fund issued a press release announcing the filing of the lawsuit.

Religion Clause Feed On Social Media Is Back

To Readers Who Follow Religion Clause on Twitter, Facebook or Google+--

I discovered only today that the company providing automatic posting of Religion Clause feed to various social media sites closed its doors on Nov. 1 without sending me notice. (I guess that's what happens when one uses free online providers :).) I now have a new provider so that Religion Clause is back on social media.

Monday, November 07, 2016

Some Issues of Religion In Tomorrow's Down-Ballot Contests

Religion has not dominated very many down-ballot contests in tomorrow's election. However for those interested in religious liberty and church-state issues, there are several contests to watch. [Thanks to Don Byrd at Blog From the Capital for keeping an eye on these down ballot issues.]

Oklahoma State Question 790 asks voters to repeal provisions in Oklahoma's state constitution (Art. 2, Sec. 5) that prohibits the use of public funds or property for the direct or indirect benefit of any religion or religious institution. This section of the state constitution was the basis for the Oklahoma Supreme Court to order removal of a Ten Commandments monument.
Missouri Constitutional Amendment 3 would increase the tax on cigarettes to create an Early Childhood Health and Education Trust Fund that will make grants to both public and private entities. Part of the amendment excludes grant funds distributed from the Trust Fund from the restrictions of Missouri Constitution Art. IX, Sec. 8 which prohibits use of public funds to support any religious creed, sectarian purpose or religious educational institution. The proposed Amendment also bars use of trust funds for any abortion services not necessary to save the life of the mother.
The conservative Christian religious beliefs of one of the candidates for Justice of the Montana Supreme Court-- attorney and law professor Kristen Juras-- has become a campaign issue. (See prior posting.)
In a contest for state legislature in Ohio, Casey Weinstein who is running in House District 37 (Summit County), has been challenged over a lawsuit filed on his behalf when he was an Air Force Academy cadet. According to the Cleveland Plain Dealer, an ad sent out by state Republican Party focuses on a lawsuit in which Weinstein was one of the plaintiffs objecting to alleged Christian proselytizing at the Air Force Academy. Weinstein's father Mikey Weinstein is head of the Military Religious Freedom Foundation that filed the suit.
The result of the state Attorney General contest in Missouri may impact a major free exercise case currently before the U.S. Supreme Court-- Trinity Lutheran Church v. Pauley. At issue is the denial-- because of Missouri's Blaine Amendment-- of a state Playground Scrap Tire Surface Material Grant that would have allowed a church to resurface a playground at its day care and preschool facility. The state, represented by the current Democratic state Attorney General Chris Koster (who is now a candidate for governor), is defending the denial. However Republican Attorney General candidate Josh Hawley sides with the church and filed an amicus brief in support of of it on behalf of a Pentecostal Christian denomination. (US Law Week, Nov. 2, reports).

Watching Tomorrow's Presidential Election Results Through Denominational Lenses

For election watchers who are also concerned about religious issues, the results of tomorrow's Presidential contest will provide interesting glimpses into the reactions of several religious groups to each of the candidates. Here are trends to watch:

Evangelical Christians have been divided over supporting Donald Trump, with some supporting him and others part of the "never Trump" movement (see Washington Times, Nov. 6). Trump has emphasized his support for repeal of the Johnson Amendment that bars campaigning by religious non-profits, and the pro-life views of individuals he will nominate to the Supreme Court. (Christian Post, Nov. 4).
Muslim Americans have been rattled by rhetoric from Donald Trump that is perceived to be anti-Muslim. Voting participation is likely to be high among American Muslims. (see AlJazeera's Nov. 6 report on voting in Dearborn, Michigan).
Many Mormons in America are uneasy with Donald Trump's policies and his personal rectitude. This has made third party candidate Evan McMullin, who is a Mormon (and whose running mate Mindy Finn is Jewish), a viable contender in Utah. (Salon, Oct. 14).
Many Jewish Americans are alarmed by the anti-Semitism disseminated by some Trump followers and the alleged anti-Semitic "dog-whistles" in Trump's own campaign statements and ads. (Nov. 6 CBS News report). However others in the Jewish community believe that Trump will be a stronger supporter of Israel, or at least of Israel's current government policies. (Op Ed Nov. 7 from The Forward). Also it has not gone unnoticed by the Jewish community that both Chelsea Clinton and Ivanka Trump are married to Jewish husbands. (Ivanka has converted to Judaism). (Oct. 2 JTA article).
Conservative Catholics were offended by an e-mail exchange between Clinton Campaign Chairman John Podesta, his Communications Director Jennifer Palmieri and supporter John Halpin. The e-mail was disclosed by Wikileaks. (Oct. 18 Op-Ed from Cincinatti.com). UPDATE: However many see broader remarks by Pope Francis as being anti-Trump. (Irish Central, Nov. 7).

Sunday, November 06, 2016

Recent Prisoner Free Exercise Cases

In Sioleski v. Capra, 2016 U.S. Dist. LEXIS 150556 (SD NY, Oct. 31, 2016), a New York federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that authorities refuse to recognize him as a Native American because he did not prove tribal affiliation; thus he is unable to attend Native American religious services, festivals and dances.

In Sokolsky v. California, 2016 U.S. Dist. LEXIS 150754 (ED CA, Oct. 31, 2016), a California federal magistrate judge denied a preliminary injunction to a civil detainee complaining that his rights to practice his Jewish religion were infringed and he was denied medically appropriate food.

In Chesser v. Rivas, 2016 U.S. Dist. LEXIS 151944 (SD IL, Nov. 2, 2016), a California federal district court adopted a magistrate's recommendations and, while dismissing a number of claims, permitted a Muslim inmate to move ahead with his equal protection challenge to restrictions on his teaching or learning Arabic and wearing shortened pants.

In Chesser v. Walton, 2016 U.S. Dist. LEXIS 151940 (SD IL, Nov. 2, 2016), an Illinois federal district court dismissed a Muslim inmate's challenge to the congregate prayer policy that limited limited Muslims to once a week instead of the five daily group prayers. However plaintiff was permitted to proceed with his retaliation claim.

In Quezada v. Cate, 2016 U.S. Dist. LEXIS 152213 (ED CA, Nov. 1, 2016), a California federal magistrate judge recommended concluding that plaintiff met the criteria for a "vexatious litigant" and should be required to post $10,000 in security before proceeding with his complaint that he was denied Jewish kosher meals.

Saturday, November 05, 2016

EEOC Sues Over Job Denial To Pentecostal Who Rejected Dress Code Mandate

On Thursday, the EEOC announced that it had filed a religious discrimination suit against the Michigan-based Akebono Brake Corp. The complaint charges that the company's dress code requires all employees to wear pants. The company refused to hire as a temporary laborer Clintoria Burnet, a member of the Apostolic Faith Church of God and True Holiness, whose religious beliefs require her as a woman to wear skirts or dresses and not pants. The company failed to offer any religious accommodation to meet Burnet's Pentecostal Christian beliefs.

Friday, November 04, 2016

Another Challenge Filed To "Church Plan" Status of Retirement Plan

Another religiously affiliated health care system has been sued by participants in its retirement plan who claim that the plan is not exempt from ERISA as a "church plan." The complaint (full text) in Sheedy v. Adventist Health System Sunbelt Healthcare Corp., (MD FL, filed 10.28/2016), contends that the plans are underfunded by $134 million. The complaint alleges that:

the Plans do not meet ERISA's requirements for the "church plan" exemption because they were not "established,"and are not "maintained" by a church.

Reporting on the lawsuit, BNA Daily Report for Executives (Nov. 1, 2016) [subscription required] says:

The 12-count lawsuit against Adventist Health differs from many of its predecessors because it targets several pension plans, including a multiemployer plan covering several Adventist-affiliated entities and a group of frozen plans in which participants are no longer accruing benefits.

The case is also noteworthy for being the first to target a hospital system with ties to the Seventh-Day Adventist Church. The vast majority of the nearly 40 church plan lawsuits have targeted Catholic health-care providers.

Petitions for certiorari in other cases posing the same issue are pending before the U.S. Supreme Court. (See prior posting).

Georgia Drops Demands For Copies of Sermons In Discrimination Case

As previously reported, last month the Georgia Department of Public Health created significant controversy when, as part of its discovery requests in a religious discrimination lawsuit filed against it by a Seventh Day Adventist lay minister, it asked its former employee to furnish notes or transcripts of his sermons. Christian Post reported this week that Georgia has now dropped that demand, but is still asking for his ministerial credentials; proof he has served with the Seventh Day Adventist church; his contracts with the Church; and details any compensation for his sermons.

3rd Circuit Hears Oral Arguments In Contraceptive Coverage Mandate Case

Yesterday the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Real Alternatives, Inc. v. Burwell. In the case, a Pennsylvania federal district court rejected a challenge by a non-profit, non-religious pro-life group to the scope of the Affordable Care Act contraceptive coverage mandate. The non-profit argued, among other things, that it should be extended the same exemption from furnishing its employees contraceptive coverage as is given to religious employers. (See prior posting.)

British Court Rejects Imam's Defamation Claim Against BBC

In Begg v. British Broadcasting Corp., (EWHC, Oct. 28, 2016), a British trial court dismissed a defamation claim brought against the BBC by the chief imam of a London mosque. The claimant, Shakeel Begg, sued over a description of him included in a BBC current affairs television program. The court concluded however that:

the words complained of ... are substantially true in their meanings: (1) The Claimant is an extremist Islamic speaker who espouses extremist Islamic positions. (2) The Claimant had recently promoted and encouraged religious violence by telling Muslims that violence in support of Islam would constitute a man’s greatest deed.

In an interesting portion of its analysis, the court said:

I turn to consider what is properly to be considered “extreme” in the context of Islam and Islamic doctrinal positions. It is necessary to do so in order to determine that the BBC’s plea of justification for the [words complained of] is made out, viz. “The Claimant is an extremist Islamic speaker who espouses extremist Islamic positions”. The various speeches and posts relied upon by the BBC were given by the Claimant on Islamic issues in his capacity as an Imam and directed to predominantly Muslim audiences. The analysis of what is “extreme” and what are “extremist Islamic positions” is, therefore, necessarily to be judged initially through the prism of Islam.

Then the court (beginning in paragraph 118) sets out ten teachings or beliefs that meet the definition of Islamic extremism. Out-Law.com reporting on the decision notes that this is one of the last cases based on laws that preceded the 2013 Defamation Act. That Act changed the defense of "justification" to the defense of "truth".

Thursday, November 03, 2016

Interview On State of Church-State Relations

For readers who may be interested, Christianity Today's Church Law & Tax today published an interview with me titled Q&A: The Current State of Church-State Relations.

Brazilian Court Awards Damages Against Priest Who Prevented An Abortion

Life Site News reported yesterday that Brazil's appellate court, the Superior Tribunal de Justiça, has ruled in favor of a couple that brought suit against an activist Catholic priest who in 2005 convinced a court to halt an abortion sought by the couple. The parents had sought a court order to permit the abortion when it became clear that the fetus suffered a severe deformity. Fr. Luiz Carlos Lodi da Cruz, at the time a law student, intervened and successfully sought habeas corpus on behalf of the fetus. Ultimately the child died eight days after birth. The appellate court, in awarding the parents damages equivalent to $18,537 (US), held that the priest had recklessly abused the legal process, causing useless suffering and intense moral damage to the parents.

Sex Abuse Suit Filed Against Guam Archdiocese

As previously reported, in September Guam retroactively eliminated its statute of limitations for civil suits alleging child sexual abuse. In the wake of this, according to AP, a civil lawsuit has now been filed by four former altar boys alleging that decades ago they were molested-- three in the 1970's by Archbishop Anthony Apuron and one in the 1950's by Father Louis Brouillard. The suit names the Archdiocese as well as Apuron and Brouillard as defendants. Archbishop Apuron, who was relieved of his duties by the Vatican in June when charges first surfaced, was replaced Monday by Bishop Michael Jude Byrnes, the auxiliary bishop of Detroit, who has been named coadjutor bishop of the Guam archdiocese.

Obama: Army Corps Looking For Alternative Pipeline Route To Protect Sioux Lands

As previously reported, the Sioux Tribe has been embroiled in litigation attempting to stop construction of an oil pipeline near the Standing Rock Indian Reservation in in North and South Dakota, contending that the construction will destroy sacred ancestral Tribal lands. A federal district court has refused to enjoin the construction. Nevertheless the federal government said it would delay approval of the construction. Now, NPR reports that on Tuesday President Obama told an interviewer that the U.S. Army Corps of Engineers is examining possible alternate routes for the Dakota Access Pipeline. Obama said in part:

We're monitoring this closely and I think, as a general rule, my view is that there's a way for us to accommodate sacred lands of Native Americans. I think right now the Army Corps is examining whether there are ways to reroute this pipeline in a way. So we're going to let it play out for several more weeks and determine whether or not this can be resolved in a way that I think is properly attentive to the traditions of the first Americans.

Wednesday, November 02, 2016

In Israel, Egalitarian Protesters Confront Western Wall Authorities

In Israel today, the conflict between ultra-Orthodox Jewish groups and egalitarian streams of Judaism led to physical clashes at the Western Wall. Haaretz reports that leaders of the Conservative and Reform movements as well as Women of the Wall broke through security guards and carried Torah scrolls to the Wall in protest of the government's continuing failure to follow through on an agreement to create a separate egalitarian prayer space at the Wall. The group had obtained a permit from police for the demonstration; however the Western Wall Heritage Foundation that controls the area was not informed of this. Young ultra-Orthodox boys confronted the group with scuffles breaking out. In a statement, Prime Minister Netanyahu's office criticized the protest saying: "unilateral breaches of the status quo in the Kotel harm our attempts to reach a compromise." But a spokesperson for the protesters said that waiting has yielded no results.

Amish Say They Are Targets of Law Requiring Horses To Wear Collection Bags

The Bowling Green Kentucky Daily News reported last week that Amish defendants are challenging an Auburn, Kentucky ordinance (Sec. 90.088(B)) that requires horses and other large animals on city streets to wear collection bags to catch their excrement. Auburn officials say the law is needed to keep city streets clean and prevent the spread of disease, but the Amish say the bags will frighten their horses. Defendants in some of the 30 pending cases are arguing that the law unconstitutionally targets a particular group of Amish residents. [Thanks to Scott Mange for the lead.]

Trinity Western Law School Wins Appeal In British Columbia

In Trinity Western University v. Law Society of British Columbia, (BC Ct. App., Nov. 1, 2016), the Court of Appeal for the Canadian province of British Columbia held that the province's Law Society acted unreasonably when it denied approval to a proposed new law school at the Christian-affiliated Trinity Western University. The Law Society's vote was a reaction to a requirement at the University that students sign a Community Covenant that, among other things, does not recognize same-sex marriage. The court summarized its decision in part as follows:

The issue on appeal is whether the Law Society met its statutory duty to reasonably balance the conflicting Charter rights engaged by its decision: the sexual orientation equality rights of LGBTQ persons and the religious freedom and rights of association of evangelical Christians. The Benchers initially voted to approve TWU’s law school. That decision was met with a backlash from members of the Law Society who viewed it as endorsement of discrimination against LGBTQ persons. The Benchers decided to hold a referendum and to be bound by the outcome. A majority of lawyers voted against approval. The Benchers then reversed their earlier position and passed a resolution not to approve TWU’s law school.

In doing so, the Benchers abdicated their responsibility to make the decision entrusted to them by the Legislature. They also failed to weigh the impact of the decision on the rights engaged. It was not open to the Benchers to simply adopt the decision preferred by the majority. The impact on Charter rights must be assessed concretely, based on evidence and not perception.

... [D]enying approval would not enhance access to law school for LGBTQ students. In contrast, a decision not to approve TWU’s law school would have a severe impact on TWU’s rights....

In a diverse and pluralistic society, government regulatory approval of entities with differing beliefs is a reflection of state neutrality. It is not an endorsement of a group’s beliefs.

CBC News reports on the decision. [Thanks to David Fernandes for the lead.]

4th Circuit Grants En Banc Review In Legislative Prayer Case

The U.S. Fourth Circuit Court of Appeals announced this week that it has granted en banc review in Lund v. Rowan County, North Carolina. In the case, a 3-judge panel of the 4th Circuit held in a 2-1 decision that the practice of the Rowan County Board of Commissioners to open its meetings with an invocation led on a rotating basis by one of the commissioners is constitutional under the Supreme Court's Town of Greece decision. (See prior posting.)