D.C. Circuit Upholds Health Care Reform, Giving Short Shrift To Religious Freedom Argument

The D.C. Circuit Court of Appeals today upheld the constitutionality of the Affordable Care Act, last year's federal health care reform law.  In Seven-Sky v. Holder, (DC Cir., Nov. 8, 2011), the majority opinion, the concurrence and the dissent focused virtually all of their attention on (1) whether the Anti-Injunction Act bars a pre-enforcement challenge to the individual mandate; and (2) whether Congress had authority under the commerce clause to impose the mandate.  The majority opinion, written by Judge Silberman, found that the Anti-Injunction Act is not a bar to the lawsuit and that Congress acted within its commerce clause powers. Judge Edwards filed a short concurring opinion. Judge Kavanaugh dissented concluding that the Anti-Injunction Act creates a jurisdictional bar to the court deciding the case at this time.

In the case, plaintiffs also invoked the Religious Freedom Restoration Act, arguing that the requirement they purchase health insurance conflicts with their Christian faith by insisting they perform an act that implies they doubt God's ability to provide for their health. The district court (see prior posting) spent 5 pages rejecting that argument. In today's opinion, Judge Silberman disposed of the RFRA argument in a footnote (fn. 4):

We affirm the dismissal of appellants’ Religious Freedom Restoration Act claim, because we agree with the district court’s reasoning that appellants failed to allege facts showing that the mandate will substantially burden their religious exercise.

The White House blog noted the decision.

Lastest Flap Over Prayer Surrounds Proposed Plaque At World War II Memorial

Another battle over government recognition of religion appears to be developing in connection with H.R. 2070, the World War II Memorial Prayer Act of 2011.  The proposed law would add a plaque with Franklin Roosevelt's D-Day Prayer to the World War II Memorial in Washington.  At a hearing on the bill held last week, Robert Abbey, director of the Bureau of Land Management, testified (full text of prepared statement) in part:

The Commemorative Works Act specifically states that a new commemorative work shall be located so that it does not encroach upon an existing one. It is not a judgment as to the merit of this new commemoration, simply that altering the Memorial in this way, as proposed in H.R. 2070, will necessarily dilute this elegant memorial’s central message and its ability to clearly convey that message to move, educate, and inspire its many visitors. The Department strongly believes that the World War II Memorial, as designed, accomplishes its legislated purpose to honor the members of the Armed Forces who served in World War II and to commemorate the participation of the United States in that conflict. It should not be altered in the manner suggested by H.R. 2070.

He added that the National Capital Memorial Advisory Commission and the American Battle Monuments Commission agreed with BLM's position.

Now, however, according to Fox News last week, "Republican lawmakers and conservative activists are expressing outrage" at BLM's opposition.  Rep. Bill Johnson, sponsor of the legislation, said: "For there to be objections to demonstrating a faith in God at critical points in our nation's history -- particularly D-Day -- boggles my mind." And Tony Perkins, president of the Family Research Council, said: "This is further evidence that the administration has created an environment that is hostile towards American history -- but in particular towards Christianity."

Court Finds Employee Was Offered Religious Accommodation

In Antoine v. First Student, Inc., (ED LA, Nov. 4, 2011), a Louisiana federal magistrate judge held that a company which operated school buses for Jefferson Parish, Louisiana had attempted to reasonably accommodate the religious needs of a Seventh Day Adventist bus driver.  The court rejected plaintiff's Title VII religious discrimination claim, finding that the company allowed him to swap his Friday afternoon route with a volunteer, or find a volunteer to cover the route. The company claimed that other alternatives would have violated its collective bargaining agreement. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

New Tunisian Constitution Will Not Call For Shariah Law

In Tunisia, Rachid Ghannouchi, head of the moderate Islamic Ennahda party that won 40% of the seats in Parliament in last month's elections, says that the country's new constitution will not make reference to Shariah or Islamic law.  According to Bikya Masr yesterday, all parties have agreed to keep the old constitution's Art. 1 that provides: "Tunisia is a free, independent and sovereign state. Its religion is Islam, its language is Arabic and its type of government is the Republic." However there will be no other mention of religion in order to maintain a secular interpretation of law in the country. (See prior related posting.)

Supreme Court Refuses Review In Jehovah's Witness Challenge To Controlled Access Law

The Supreme Court today denied certiorari in Watchtower Bible and Tract Society of New York, Inc. v. Segardia de Jesus, (Docket No. 11-26, cert. denied 11-7-2011). (Order List). In the case, the 1st Circuit dismissed a facial challenge brought by the Jehovah's Witnesses to Puerto Rico's Controlled Access Law, but vacated the trial court's order denying injunctive and declaratory relief on an "as applied" challenge to the law. The challenged statute -- a crime control measure-- authorizes municipalities to grant permits to neighborhood homeowners' associations (urbanizations) so they can control vehicular and pedestrian access to the neighborhood. The Jehovah's Witnesses say this has prevented them from entering neighborhoods to engage in religious proselytizing. (See prior posting.)

Hospital Sues Over Whether It Is A Public Agency-- Church-State Implications

As previously reported, church-state questions are being raised in Kentucky regarding the agreement for the proposed merger of Louisville's University Hospital with two other Kentucky health care systems to create a state-wide network that would be controlled by Catholic Health Initiatives. All of the participating hospitals have agreed to follow Catholic health care policies. The University claims that the hospital is not a public institution so that the church-state issue is irrelevant. Now, according to yesterday's Louisville Courier-Journal, a related state lawsuit has been filed that will bear on that question.  The ACLU and various news organizations have requested documents related to the merger under the state's open records law, and the attorney general last month ruled that the hospital is a public entity that is subject to that law. Now University Hospital has sued to avoid turning over records on the ground that it is not a public agency subject to the open records requirements, but instead is a private non-profit corporation.

Church Violates Fair Housing Act In Trying To Set Up Sex Offender Program

Florida's sexual offender law, FL Stat Sec. 947.1405(7)(a)(2), provides that certain sex offenders who have been conditionally released from prison may not live, among other places, within 1000 feet of a public school bus stop. Matthew25Ministries, a prison ministry that has developed an after-care program for those charged with sex crimes, leased all the units in Pelican Lake Village apartments, a Palm Beach County (FL) apartment complex, intending to sublease them to sex offenders as they became available. However it could not do so while a school bus stop was located at the site.  The Ministry was unsuccessful in getting the school bus stop moved. Therefore it told families with children living in the apartment complex that they would be required to move out. Presumably that would eliminate the bus stop. The affected families filed suit in federal district court charging violations of the federal Fair Housing Act (42 USC 3604) that prohibits discrimination in rentals on the basis of familial status. In two opinions (full text 1,  full text 2) in Whyte v. Alston Management, Inc., (SD FL, Nov. 1, 2011), a Florida federal district court held that Matthew25Ministries, as well as the real estate management companies involved and their employees, are liable for violations of 42 USC 3604(a)-(c). Last Friday's Palm Beach Post reports on the decisions.

Recent Articles of Interest

From SSRN:

• Ruth E. Gavison, The Law of Return at Sixty Years: History, Ideology, Justification, (October 31, 2011).
• William J. Haun, A Standard for Salvation: Evaluating 'Hybrid Rights' Free-Exercise Claims, (November 1, 2011).
• Richard Albert, The Constitutional Politics of the Establishment Clause, (Chicago-Kent Law Review, Vol. 87, No. 1, 2012).
• Wendy S. Goffe, An Estate Planners Roadmap to the Valley of the Shadow of Death: Health Care Directives from Religious Perspectives. Fear No Evil, (November 3, 2011).
• Matthew Hood, John R. Nofsinger and Abhishek Varma, Conservation, Discrimination, and Salvation: Investors' Social Concerns in the Stock Market, (November 4, 2011).

From SmartCILP:

• Helen M. Alvare, Bishops v. Nuns in Jeeps? Why a Facially "Intra-Catholic" Health Care Dispute Matters, [Abstract], 25 Notre Dame Journal of Law, Ethics and Public Policy 563-591 (2011).
• Bishop Thomas John Paprocki, Caring for the Sick: The Catholic Contribution and Its Relevance, [Abstract], 25 Notre Dame Journal of Law, Ethics and Public Policy 447-461 (2011).
• Redeeming Law: Christian Calling in the Legal Profession. Keynote addresses by J. Budziszewski and Michael P. Schutt; panel participation with Janet Epp Buckingham, Roger Alford and Brad Jacob, moderators; Teresa S. Collett, Santiago Legarre, Gabriel Mora-Restrepo, Ken Starr, Zhang Shoudong, Kwame Frimpong, Li-Ann Thio and Vilma C. Balmaceda, panelists. 7 Regent Journal of International Law 1-163 (2009).

Trade Group Wants Court To Bar Utah Legislators From Considering Mormon Views In Enacting Liquor Laws

Utah's Senate Bill 314, signed by the governor last March, imposes new limitations on liquor licenses and the sale of alcoholic beverages. Among other things, it eliminates discount pricing of alcoholic beverages offered by social clubs and links the issuance of liquor licenses to social clubs to both population quotas and the number of public safety officers employed by the State of Utah. As reported by Fox News last week, in June the Utah Hospitality Association filed a federal lawsuit challenging the new law on antitrust grounds. An amended complaint (full text) was filed on Oct. 27 in Utah Hospitality Assoc. v. Herbert, (D UT), now also seeking:

a declaration that the legislators of the State of Utah shall not consult with, or consider the opinions of, the Church of Jesus Christ of Latter Day Saints when making alcohol policies during future legislative sessions [, and] ... a declaration that the legislators consultation with the Church of Jesus Christ of Latter Day Saints when making alcohol policies during the 2011 legislative session was unconstitutional.

Recent Prisoner Free Exercise Cases

In Olivier v. Scribner, 2011 U.S. Dist. LEXIS 125755 (SD CA, Oct. 31, 2011), a California federal district court dismissed an inmate's complaint that he was not provided a kosher diet. Plaintiff failed to allege sufficient facts to support a claim under RLUIPA or the 1st Amendment.

In Funtanilla v. Williams, 2011 U.S. Dist. LEXIS 126238 (ED CA, Oct. 31, 2011), a California federal magistrate judge allowed a Seventh Day Adventist, incarcerated at a substance abuse and treatment facility, to proceed with his complaint that he was not permitted to post a copy of the 10 Commandments on his door. However the court dismissed, with leave to file an amended complaint, plaintiff's claims that his rights were violated when he was not furnished a pastor or access to group services or provided with food at his cell on the Sabbath.

In Saif'ullah v. Haviland, 2011 U.S. Dist. LEXIS 126249 (ED CA, Oct. 31, 2011), a California federal magistrate judge held that a Muslim inmate failed to state a habeas corpus claim in his complaint that his parole suitability hearing was held during Ramadan and in his complaints he was not given his cup when the Ramadan daily fast was over and was denied an evening meal on one occasion.

In Whitfield v. Illinois Department of Corrections, 2011 U.S. Dist. LEXIS 126475 (SD IL, Nov. 2, 2011), an Illinois federal magistrate judge, while dismissing a number of claims, allowed an inmate (whose religion was not specified in the opinion) to proceed with individual capacity damage claims based on alleged denial of religious meals, unequal allocation of funds for religious programs and services, forcing plaintiff to get a TB shot on the Sabbath, and inadequate training of personnel.

In Gregorio v. Aviles, 2011 U.S. Dist. LEXIS 127155 (D NJ, Nov. 3, 2011), a New Jersey federal district court dismissed, with leave to amend, an inmate's claim that his 1st Amendment and RLUIPA rights were violated because his portion of the prison was not allowed to attend religious services.

Mississippi Governor Supports Personhood Amendment

On Friday, Mississippi Governor Haley Barbour posted a statement on his official website indicating that he supports Initiative 26, the Personhood Amendment that will appear on the ballot in Mississippi this week. The statement reads:

A pro-abortion group has called people's homes and deceived voters into thinking I'm opposed to Initiative 26, the Personhood Amendment. As I've previously stated, I voted for the Personhood Amendment. These misleading calls were made without my knowledge, without my permission and against my wishes. I have demanded this deception be stopped, and those responsible have assured me that no more calls will be made.

The State Column reported yesterday that the robocalls to which Barbour refers used a portion of an MSNBC interview with Barbour in which he expresses concern about the ambiguity of the language of Initiative 26.  The proposed constitutional amendment provides: "As used in this Article III of the state Constitution, "The the term 'person' or 'persons' shall include every human being from the moment of fertilization, cloning, or the functional equivalent thereof."

White House Statement Sends Greetings To Muslims On Eid and Hajj

President Obama today released a statement (full text) sending greetings for a happy Eid al-Adha to Muslims around the world observing the feast on Monday. The statement also congratulates those performing Hajj, which began today. The President said in part: "The Eid and Hajj rituals are a reminder of the shared roots of the world’s Abrahamic faiths and the powerful role that faith plays in motivating communities to serve and stand with those in need." AP reports that some 2.5 million pilgrims are taking part in the 5-day Hajj in Saudi Arabia. Meanwhile, according to today's Jakarta Globe, in Indonesia police in Banten arrested 3 officials from the Ministry of Religious Affairs for fraud. They took up to $5600 each from dozens of people who thought they were paying for arrangement to perform Hajj.

Air Force Academy Changes Backing Of Christmas Project

The Colorado Springs Gazette reported Thursday that the U.S. Air Force Academy has withdrawn its general solicitation of cadets by cadet leaders to support Operation Christmas Child. The program, sponsored by an evangelical Christian group, sends toys and toiletries to children around the world in boxes that also contain religious messages. The Academy has instead turned participation in the project over to Academy chaplains who can recruit support for religious activities. The change was made after a complaint was filed by Mikey Weinstein, head of the Military Religious Freedom Foundation. The Air Force Academy has been embroiled in numerous controversies in recent years accusing it of promoting Christianity to its cadets. (See prior related posting.)

Michigan Anti-Bullying Bill Criticized Over Religious Exemption

Michigan is one of three states without an anti-bullying law. Currently, Matt's Safe School Law, SB 45, is working its way through the state's legislature. ABC News reports that the state Senate passed the bill last Wednesday, but added a controversial exemption that provides the bill "does not prohibit a statement of a sincerely held belief or moral conviction." Columnist Dan Savage strongly criticized the exemption, saying:

It really is a God-hates-fags-special-rights-for-Christians-to-abuse-LBGT-kids-in-the-school law. It's a law that specifically empowers students, teachers, administrators [and] principals to bully LGBT kids if they can point to a moral justification."

Bill sponsor Rick Jones says this language was not intended to allow a child to be confronted or abused, but was merely designed to protect the child who says in class that his religion does not believe in same-sex marriage.  Jones says he is open to the language being changed, so long as students' 1st Amendment rights are protected.


UPDATE: The Michigan House of Representatives on Nov. 10 passed HB 4163, a version of the anti-bullying law that does not contain the language exempting statements motivated by religious or moral beliefs. (Huffington Post.)

Summum Sues Pleasant Grove Again-- Now In State Court

The Summum organization has been attempting for several years to obtain permission to put up a Seven Aphorism's monument in a park in Pleasant Grove City, Utah. The park already contained a number of other monuments, including the Ten Commandments.  The city's refusal has been upheld against federal constitutional challenges by the U.S. Supreme Court (see prior posting) as well as subsequently on remand by the Utah federal district court. (See prior posting.) However the federal district court declined to exercise supplemental jurisdiction to hear Summum's claim that the city's refusal violates Utah's state constitution. The Provo (UT) Daily Herald today reports that now Summum has filed another lawsuit in state court raising the state constitutional claims. It alleges that the state establishment clause (Art. I, Sec. 4) is broader than the federal establishment clause.

Nurses Sue NJ Hospital Claiming Forced Participation In Abortion Procedures

A lawsuit was filed last week by a group of nurses against the University of Medicine and Dentistry of New Jersey claiming that the University has demanded that the nurses assist in abortions in violation of their religious objections, and that they begin training to do so immediately.  The complaint (full text) in Danquah v. University of Medicine and Dentistry of New Jersey, (D NJ, filed 10/31/2011), alleges that these demands violate federal and state statutes that protect the conscience rights of medical personnel, and also violate the 14th Amendment. AP reported yesterday that the University has assured the court that it will not require nurses to participate in the training until after a scheduled Nov. 18 court hearing.

Mormon Church Sues Texas City To Challenge Denial of Zoning Permit

The Mormon Church last week filed a federal lawsuit against the city of Mission, Texas, challenging its refusal to grant a conditional use permit for a new church building that was needed to alleviate the inadequate space currently available for local church members to worship. The complaint (full text) in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. City of Mission, (SD TX, filed 10/31/2011), alleges that the city arbitrarily imposed a super-majority City Council voting requirement for approval of the permit, and that  one member of City Council should have abstained from voting because of a conflict of interest. The suit claims violations of RLUIPA, the Texas Religious Freedom Restoration Act, and free exercise and due process provisions of the Texas and U.S. Constitutions. Yesterday's Rio Grande Valley Monitor reported on the lawsuit.

Preliminary Injunction Permits Student To Distribute Religious Flyers

In K.A. v. Pocono Mountain School District, (MD PA, Oct. 20, 2011), a Pennsylvania federal district court issued a preliminary injunction permitting an elementary school student to hand out non-school related religious flyers.  The suit was filed after school officials barred the student from handing out invitations to a Christmas party at her church.  The court said that where, as here, student speech is involved, analysis should focus on the "disruption" test developed in the Tinker case, and not an analysis of whether a school is a nonpublic forum. The North County Gazette reports on the opinion. (See prior related posting.)

New Poll Shows Small Increase In U.S. Anti-Semitic Attitudes

The Anti-Defamation League released a new national poll yesterday finding a slight increase in anti-Semitic attitudes of Americans over the past two years. The survey found that 15% of Americans hold deeply anti-Semitic views, up from 12% in 2009. The survey demonstrated that old attitudes and stereotypes are still prevalent in significant groups of the population.  14% agreed with the statement that Jews have too much power in the United States. 31% agreed with the statement that the Jews were responsible for the death of Christ.

Canadian Court Rules In Sikh Temple Factional Dispute

A Canadian trial court in Windsor, Ontario has issued a ruling in a factional dispute at the Sikh Cultural Society of Metropolitan Windsor.  As reported by the Windsor Star on Wednesday, the court determined which members of the Sikh temple are eligible to vote at an upcoming election. The dispute arose when the temple's former leader, Dr. Sukhdev Singh Kooner, refused to hand over leadership to a newly elected executive committee.  On several occasions, violence has erupted between the factions.  The court this week also ordered Kooner and his supporters to stay away from the temple, except for Sunday worship services, for the next three months while elections are being held.