7th Circuit Enjoins Enforcement of Contraceptive Coverage Mandate Against Catholic-Owned Small Business

In Grote v. Sebelius, (7th Cir., Jan. 30, 2013), the U.S. 7th Circuit Court of Appeals in a 2-1 decision issued an injunction pending appeal to prohibit enforcement of the Affordable Care Act contraceptive coverage mandate against a Catholic-owned for-profit small business and its owners. The company (formed as an LLC with a corporation as its managing member) manufactures vehicle safety systems and employs 1148 people at various locations. The majority largely relied on its earlier decision in Korte v. Sebelius (see prior posting) in finding that  plaintiffs' free exercise rights are substantially burdened in violation of the Religious Freedom Restoration Act. The majority concluded that plaintiffs' case here is stronger than in Korte because this is a self-insured plan, and plaintiffs have never covered contraceptive services for their employees. The majority added:

the government’s minimalist characterization of the burden continues to obscure the substance of the religious‐liberty violation asserted here.

Judge Rovner dissented at length, saying in part:

the obligation to cover contraceptives falls not on the Grotes personally but on Grote Industries’ health care plan.... The owners of an LLC or corporation, even a closely‐held one, have an obligation to respect the corporate form, on pain of losing the benefits of that form should they fail to do so....  The Grotes are not at liberty to treat the company’s bank accounts as their own; co‐mingling personal and corporate funds is a classic sign that a company owner is disregarding the corporate form and treating the business as his alter ego. So long as the business’s liabilities are not the Grotes’ liabilities – which is the primary and “invaluable privilege” conferred by the corporate form, ... neither are the business’s expenditures the Grotes’ own expenditures.  To suggest, for purposes of the RFRA, that monies used to fund the Grote Industries health plan –  including, in particular any monies spent paying for employee contraceptive care – ought to be treated as monies from the Grotes’ own pockets would be to make an argument for piercing the corporate veil. I do not understand the Grotes to be making such an argument....

Medical decisions are made in private on an individual basis.  Any given medical decision, depending on the nature of the patient’s condition, the available treatments, and the circumstances confronted by doctor and patient, might be inconsistent with the religious beliefs of one or more owners of the company that sponsors the patient’s workplace insurance.  Holding that a company shareholder’s religious beliefs and practices are implicated by the autonomous health care decisions of company employees, such that the obligation to insure those decisions, when objected to by a shareholder, represents a substantial burden on that shareholder’s religious liberties, strikes me as an unusually expansive understanding of what acts in the commercial sphere meaningfully interfere with an individual’s religious beliefs and practices. 

Default Judgment Upheld Against Old Order Amish Member For Ignoring Building Code

In Eau Claire County v. Borntreger, (WI App., Jan. 29, 2013), a Wisconsin appeals court upheld a trial court's refusal to reopen a default judgment that had been entered against a member of the Old Order Amish for failing to comply with the county building code in constructing a one-family residence. The appeals court concluded that defendant had not established a meritorious religious defense to the provisions of the code that the county sought to enforce, even though defendant might have a religious defense to other provisions of the code. Defendant's religious objections to installing smoke detectors does not excuse non-compliance with the requirement that the building be structurally sound. WTAQ reports on the decision.

FBI Issues New Hate Crime Reporting Guidelines and Training Manual

ADL's Civil Rights Blog reports on the FBI's release last month of a new guide on  reporting of hate crimes titled Hate Crime Data Collection Guidelines and Training Manual. According to the Introduction in the Manual, it

is intended to assist law enforcement agencies in reporting incidents of hate crime to the FBI UCR Program.  It addresses policy, the types of bias crime to be reported, how to identify a hate crime, and guidelines for reporting hate crime.

[Thanks to Michael Lieberman for the lead.] 

Ministerial Exception Ends Wrongful Termination Lawsuit Against United Methodist Agency

In Mills v. Standing General Commission on Christian Unity, (NY Sup. Ct., Jan. 29, 2013), a New York state trial court dismissed a breach of contract wrongful termination lawsuit that had been filed by a former Associate General Secretary of Dialogue and Interfaith Relations for a program-related agency of The United Methodist Church.  The court concluded that the ministerial exception doctrine applies because plaintiff had a role in conveying the Church's message and carrying out its mission.  Deciding the case would require the court to interpret the Church's Book of Discipline. Furthermore plaintiff failed to show that there was an employment contract between him and defendant Thompson Reuters News & Insight reported on the decision.

Amicus Briefs In Same-Sex Marriage Cases Now Available Online

Numerous amicus briefs have now been filed in the two Supreme Court same-sex marriage cases that will be argued on March 26 and 27. A number of the amici are religiously affiliated organizations.  Scotus Blog has links to the full text of all the briefs in Hollingsworth v. Perry and  in United States v. Windsor.

Some Rabbis Will Refuse To Comply With NYC Informed Consent Circumcision Rule

As previously reported, a New York federal district court earlier this month refused to issue a preliminary injunction to block enforcement of the New York City Health Department's rule requiring that a mohel (Jewish ritual circumciser) obtain a written informed consent form from parents before he performs a circumcision using the oral suction technique (metzitzah b'peh).  The Forward reports today that some Orthodox rabbis say they will refuse to comply with the rule. The American Board of Ritual Circumcision says that its members will not have parents sign the waiver forms. Other Orthodox groups however are not necessarily urging civil disobedience.

Florist Sued For Discrimination After Refusing To Deliver Flowers To Winning Establishment Clause Plaintiff

Following up on a right-to-sue letter it obtained from the Rhode Island Commission for Human Rights (see prior related posting), the Freedom From Religion Foundation has filed a state court lawsuit against a florist who refused to deliver flowers ordered by FFRF for a successful plaintiff in an Establishment Clause case.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Plowman, (RI Super. Ct., filed 1/25/2013), grows out of FFRF's sending of congratulatory flowers to 16-year old Jessica Ahlquist who successfully challenged a prayer mural that hung in the auditorium of Cranston West High School. (See prior posting.) The florist refused to deliver the order, and defended the decision publicly as the right to free speech, saying that an independent owner can choose his customers. The complaint alleges that the refusal violates RI Gen. Stat. Chap. 11-24, Rhode Island's ban on denial of equal access to public accommodations based on religion, or, in this case, based on non-belief. FFRF issued a press release announcing the filing of the lawsuit.

Hare Krishna Priest Sentenced To 3 Years In Visa Fraud Case

Last week, a federal district court in Milwaukee, Wisconsin, sentenced Hare Krishna priest Sagarsen Haldar to 3 years in prison for bringing sham priests from India to the United States under the religious worker visa program, and extorting money from them.  US Indian reports that the priest, also known as Gopal Hari Das, was convicted of conspiracy to defraud the government,

Suit Challenges Mall's Restriction On Proselytizing

The Pacific Justice Institute announced last week that it had filed suit in a Tulare County, California state court on behalf of John Vadnais, an elder at a local church, who wants to share his Christian belief with other shoppers at Visala Mall. Mall management has told him that he may not approach strangers in the mall to talk about religion,  The suit alleges violation of Vadnais' free speech rights and the public accommodation law.

House of Commons Passes Bill Allowing Royals to Marry Catholics

In Britain yesterday, the House of Commons completed its action on the Succession to the Crown Bill. Now that Commons passed the bill on its third reading, it goes to the House of Lords for debate and vote. Among other things, the bill removes the disqualification from succession to the Crown of a royal heir who has married a Roman Catholic. The bill also eliminates consideration of gender in determining the order of succession to the throne, and limits to the 6 people in line for the throne the requirement of royal consent to their marriage. CBC News reported yesterday that Prince Charles is concerned about the impact of the bill on the relationship of the Crown to the Church of England. However the Church of England does not oppose the bill.

School Accommodates Muslim Students' Prayer Needs If They Have High Grades

The Washington Post reported yesterday on an interesting method of accommodating Muslim students' religious needs at Prince Georges County, Maryland, Parkdale High School. The suburban Washington D.C. school allows students who are members of the Muslim Students Association and who have parental permission to do so to leave class and pray together for 8 minutes each day so long as the student has high grades. Ten students currently qualify for the daily pass, and another student is working hard to raise his grades so he can join the prayer group.

Texas Legislator Proposes Offsetting State Tax Refund For Contraceptive Coverage Refusal

As reported by Courthouse News Service yesterday, a bill has been introduced in the Texas legislature that would give offsetting state tax refunds or credits to any business that pays a federal fine for refusing on conscience grounds to offer employees a health insurance plan that includes emergency contraception. H.B. 649 provides that a business is entitled to an offsetting refund of sales taxes, state franchise taxes, and any other tax paid if it refused solely because of the religious convictions of its owner, to comply with the contraceptive coverage mandate. The bill was introduced Jan. 23 by Republican representative Jonathan Stickland.

Iran Sentences Pastor To 8 Years In Prison

Reuters reported yesterday that Iranian-American Christian pastor Saeed Abedini has been sentenced to 8 years in prison by an Iranian court after his attorney had only one day to present his defense to charges of threatening Iran's national security through his leadership in Christian house churches. A U.S. State Department spokesman said: "We condemn Iran's continued violation of the universal right of freedom of religion and we call on the Iranian authorities to respect Mr. Abedini's human rights and release him." (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Rajdeep Singh Jolly, How State Photo Identification Standards Can Be Used to Undermine Religious Freedom, (Asian American Law Journal: Volume 19, 2012).
• Yuksel Sezgin, The Promise and Pitfalls of Women Challenging Muslim Family Laws in India and Israel (Chapter 4), (Sexuality in Muslim Contexts: Restrictions and Resistance, Anissa Helie & Homa Hoodfar (Eds.), London: Zed Books (2012), pp.98-123).
• Yuksel Sezgin, Triangulating Reform in Family Law: State, Religion and Women's Rights in Comparative Perspective, (Self-Determination and Women's Rights in Muslim Societies, Chitra Raghavan & James Levine, eds., Brandeis University Press (2012), pp. 243-272).
• Robert F. Cochran and Michael A. Helfand, Symposium Introduction: The Competing Claims of Law and Religion: Who Should Influence Whom?, (Pepperdine Law Review, Vol. 39, No. 1051, 2012).
• Chad Flanders, Can We Please Stop Talking About Neutrality? Koppelman between Scalia and Rawls, (Pepperdine Law Review, Vol. 39, No. 5, 2013).
• Pnina Lahav, The Woes of WoW: The Women of the Wall as a Religious Social Movement and as Metaphor, (John Berthrong, ed. Religion, Conflict & Peace Making: Seeking Wisdom in Interdisciplinary Dialogue, 2012, Forthcoming).
• Dr. Nafees Ahmad, Hate Crimes: A Global Racialistic & Xenophobic Enterprise (A Socio-Lego-Genetical Understanding), (International Journal of Arts & Sciences, CD-ROM, ISSN: 1944-6934, Vol. 5, No. 6, 159–240 (2012)).
• Charles M. North, Wafa Hakim Orman and Carl R. Gwin, Religion, Corruption, and the Rule of Law, (June 22, 2012).
• SpearIt, Facts and Fictions About Islam in Prison: Assessing Prisoner Radicalization in Post-9/11 America, (Institute for Social Policy and Understanding, January 2013).

From SmartCILP:

• Phillip I. Ackerman-Lieberman, Commercial Forms and Legal Norms In the Jewish Community of Medieval Egypt, [Abstract], 30 Law & History Review 1007-1052 (2012).
• Christopher Waldrep, The Use and Abuse of the Law: Public Opinion and United Methodist Church Trials of Ministers Performing Same-Sex Union Ceremonies, [Abstract], 30 Law & History Review 953-1005 (2012).

Today Is International Holocaust Memorial Day

Today is International Holocaust Memorial Day-- so designated by the United Nations which chose the date of the liberation of Auschwitz-Birkenau for the commemoration. (Holocaust Memorial Museum). President Obama issued a statement (full text) saying in part:

On January 27th, International Holocaust Remembrance Day, we honor the memories of the 6 million Jews and millions of other innocent victims whose lives were tragically taken during the Holocaust over sixty years ago. Those who experienced the horrors of the cattle cars, ghettos, and concentration camps have witnessed humanity at its very worst and know too well the pain of losing loved ones to senseless violence.

But while this is a time for mourning and reflection, it is also the time for action. On this day, we recall the courage, spirit, and determination of those who heroically resisted the Nazis, exemplifying the very best of humanity. And like these courageous individuals, we must commit ourselves to resisting hate and persecution in all its forms.

According to Deutsche Welle German Chancellor Angela Merkel in her weekly online podcast said in part:

Naturally, [Germany has] an everlasting responsibility for the crimes of national-socialism, for the victims of World War II, and above all, for the Holocaust.

Court Rejects Religious Discrimination Claim Against School For Not Passing Student

In Kajoshaj v. City of New York, (ED NY, Jan. 23, 2013), a New York federal district court rejected claims by an Albanian-American Muslim that the New York City schools discriminated against his son on the basis of  religion and national origin when Public School 180 kept his son in 5th grade rather than passing him to the 6th grade. The court rejected plaintiff's claim under Title VI of the 1964 Civil Rights Act, quoting New York courts in saying: "Strong policy considerations militate against the intervention of courts in controversies relating to an educational institution's judgment of a student's academic performance." The court also rejected equal protection, due process and state law challenges.

Recent Prisoner Free Exercise Cases

In Davila v. Marshall, 2013 U.S. Dist. LEXIS 8816 (SD GA, Jan. 23, 2013), a Georgia federal magistrate judge allowed an inmate to proceed with his complaint that prison authorities have not allowed him to have Santeria beads, cowrie shells, or his Bible.

In McBryde v. Thomas, 2013 U.S. Dist. LEXIS 8492 (D MT, Jan. 22, 2013), a Montana federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185017, Nov. 27, 2012) and permitted an inmate to proceed against various defendants with his complaint that he was required to participate in an AA/NA program with religious content.

In Sampson v. Lee, 2013 U.S. Dist. LEXIS 8628 (WD VA, Jan. 22, 2013), a Virginia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185003, Dec. 19, 2012) and dismissed an inmate's complaint that he was removed from a no-pork special diet for 14 days.

In Holmes v. Conway, 2013 U.S. Dist. LEXIS 8138 (ND GA, Jan. 18, 2013), a Georgia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 184982, Dec. 21, 2012) and dismissed an inmate's complaint that he was denied a Halal diet. Jail officials offered him a vegetarian diet, and the jail does not serve pork.

In Hachmeister v. Kline, 2013 U.S. Dist. LEXIS 8323 (D KS, Jan. 22, 2013), a Kansas federal district court held that a Muslim inmate's clam for damages of $100 million because of an alleged denial of 8 of his religious meals are completely conclusory and subject to dismissal unless plaintiff files an amended complaint alleging appropriate facts.

In McDaniel v. Fizer, 2013 U.S. Dist. LEXIS 9622 (D AZ, Jan. 24, 2013), an Arizona federal district court allowed a Muslim inmate to proceed with his complaint against certain of the defendants that authorities denied him a kosher diet for 11 months.

Suit Claims State Cannot Bar Religious Discrimination In Hiring At For-Profit Christian School

California's Fair Employment and Housing Act contains an exemption for non-profit religious associations or corporations. (Govt. Code Sec. 12940(j)(4)(B)). The Ventura County Star reported on Friday that two former teachers at a Christian school in Thousand Oaks, California have threatened to file a lawsuit challenging their firing. They were dismissed after they refused to provide Little Oaks School with a statement of faith and a reference from a pastor. The school is incorporated as a for-profit corporation, but is owned by the non-profit Calvary Chapel of Thousand Oaks. As a pre-emptive measure last Wednesday, the school filed a federal court lawsuit against the two teachers and their law firm attempting to enjoin them from filing a lawsuit in state court. The school argues that the California Fair Employment and Housing Act is unconstitutional insofar as it restricts a religious school's hiring practices, even when the school is incorporated as a for-profit institution.

Court Orders Legion of Christ Documents Unsealed

In Dauray v. Estate of Mee, (RI Super. Ct., Jan. 23, 2013), a Rhode Island Superior Court permitted the AP, the New York Times, the Providence Journal and the Catholic Reporter to intervene to challenge a protective order that had been entered by a probate judge sealing documents that had been produced during discovery by  the scandal-ridden Legion of Christ. Plaintiff, who attempted to claim that her aunt was improperly induced to leave the Legion $60 million in her will, also challenged the protective order. The court held:

The Moving Parties ... clearly ... have a right of access to the exhibits filed with the Motion for Summary Judgment because the Court relied on those documents as part of its adjudicating function.... Additionally ... the Moving Parties have a right of access to discovery motions and their related exhibits..... The public has a great interest in the openness of its courts....  [P]ublic scrutiny of the courts provides a check on the judiciary and ―diminishes the possibilities for injustice, incompetence, perjury and fraud.

AP reports on the lifting of the protective order and says that the Legion immediately filed a motion to block release of the documents. In an earlier decision, the court held that the niece lacked standing to bring the challenge to her aunt's will. (See prior posting.)

Milwaukee Archdiocese Approaching Insolvency In Reorganization

The Milwaukee Journal-Sentinel reported yesterday that the Catholic Archdiocese of Milwaukee is approaching administrative insolvency in its Chapter 11 bankruptcy reorganization.  It has filed a motion asking the bankruptcy court to suspend most of its payments to attorneys and consultants. Otherwise, by April it will have a cash shortfall of $488,000. If it falls into administrative insolvency, the bankruptcy judge could appoint a trustee to manage the Archdiocese's day-to-day affairs, or could totally dismiss the case which would allow creditors to sue in state court. The Archdiocese will continue to use funds from its insurers to pay lawyers to oppose sex abuse claims.