Ex-Scientologists Sue Charging Church With Fraud and Deception

The Tampa Bay Times reports that a lawsuit was filed Wednesday in a Florida federal district court against the Church of Scientology by a California couple, Luis and Rocio Garcia, who charge 5 Scientoloty entities with fraud and deception.  The Garcia's say they gave the church $340,000 for a planned "Super Power" building in Clearwater, Florida that after 14 years is still incomplete. They claim that Scientology purposely kept the building incomplete in order to raise more money for it.  They also seek return of $69,000 the put on deposit for counseling and for meals and accommodations aboard Scientology's cruise ship. They also say they gave over $40,000 to the International Association of Scientologists in fundraising appeals for projects that did not exist or were misrepresented. Among other things, the Garcia's allege that Scientology made a video using actors to impersonate earthquake victims. The Garcia's, who no longer belong to Scientology, gave it $1.3 million during their 28 years as church members, and spent $300,000 on Scientology services. The lawsuit particularly focuses on the role of Scientology leader David Miscavige.  A Scientology spokesperson said : "This frivolous suit is filed by the same group of apostates the [St. Petersburg] Times has been supporting for four years..."  The St. Petersburg Times ran a long expose on the church in 2009. (See prior posting.)

Suit Challenges NY Exclusion of Religious Schools From Child Protection Requirements

Vos Iz Neias? reported yesterday on a federal lawsuit filed in a New York federal district court by a minor student enrolled in a Nassau county yeshiva and by her father against the New York State Assembly and its legislative leaders. The suit claims that students' equal protection and free exercise rights are violated  by the state legislature' exclusion of religious schools from state child protection laws that are mandatory in public schools. Among the requirements at issue are schools educating students in abduction prevention, running fingerprint and criminal background checks on all employees and a requirement to report child abuse that takes place in an educational setting.

Mixed Reactions In Orthodox Jewish Community to 103-Year Sentence of Satmar For Sex Abuse

The Forward today reports on the reaction in the Orthodox Jewish Satmar community to the sentencing by a New York state trial judge of 54-year old Nechemya Weberman, a prominent member of the community, to 103 years in prison for sexually abusing a young Orthodox Jewish girl who was sent to the unlicensed therapist for counseling.  Weber was found guilty on 59 counts related to the abuse that took place over a 3-year period beginning when the victim was 12. Some see the sentence as excessive and as likely to undercut efforts by Brooklyn's district attorney to get more cooperation from the Satmar community in investigations of sexual abuse complaints. (See prior related posting.) Others though say that the sentence shows victims that justice can be achieved through going to civil authorities.

Israel's Religious Parties Do Well In Election; But Coalition May Choose Between Them

In Israeli elections yesterday, religious parties emerged stronger than before.  According to YNet News final tally, Shas and Habayit Hayehudi (Jewish Home) each won 11 seats, while United Torah Judaism won 7 seats in the 120-seat Knesset. In the outgoing Knesset, Shas had 11 seats, United Torah Judaism had 5 and Habayit Hayehudi had 3. In an interview last week reported in Haaretz, Habayit Hyehudi leader Naftali Bennett suggested that his party would like to be part of a Netanyahu coalition, and would be a stable, loyal and practical partner. Bennett says his party is centrist and will not be controlled by far-right rabbis. He explained:

We're not coming along to topple a right-wing government over every little thing. As long as no decision is made to hand over territory, we have no reason to leave the government."

Haaretz says that "Netanyahu will be forced to choose whether Habayit Hayehudi or the ultra-Orthodox parties will be members of his coalition."

Accommodating Store Manager's Sabbatarian Beliefs Would Impose Undue Hardship

In EEOC v. Rent-A-Center, Inc., (D DC, Jan. 18, 2013), the D.C. federal district court dismissed an EEOC lawsuit against a rent-to-own business finding that accommodating the religious beliefs of store manager Ferdinand Charles would impose an undue hardship on the company. Charles' religious beliefs prohibited him from working on Saturdays, the store's busiest day. The store is closed on Sundays and the company requires all managers to work on Saturdays. The court said that the EEOC was asking for the store to allow its most important employee to regularly be absent on the most important day of the week.

Kazakhstan Has Prosecuted 7 For Illegal Missionary Activity

According to a report yesterday by Forum 18, in Kazakhstan, seven people - four Jehovah's Witnesses, two Muslims and a Protestant – have been prosecuted for illegal missionary activity since August 2012. Three others expect to be prosecuted.  The prosecutions under Article 375, Part 3 of the Code of Administrative Offences are punishable by fines of up to 100 Minimum Financial Indicators, an amount equal to several months average wages in Kazakhstan.

Court Refuses To Dismiss Challenge To 10 Commandments Monument

In Freedom From Religion Foundation, Inc. v. New Kensington-Arnold School District, 2013 U.S. Dist. LEXIS 8269 (WD PA, Jan. 22, 2013), a Pennsylvania federal district court denied defendants' motion to dismiss a challenge to the constitutionality of a 6-foot tall 10 Commandments monument that has stood for decades at the entrance to Valley High School.  After discussing what it sees as four different Establishment Clause tests that have been announced by the Supreme Court, the court concluded that while perhaps it may later find plaintiffs' case untenable, "a fair reading of the Complaint at this stage of the proceedings leads to the conclusion that the factual allegations provided by Plaintiffs ... at least having stated a facially plausible claim." FFRF has links to all the pleadings in the case.

Cert. Denied In Challenge To Judge's Sentencing Remarks Invoking Religion

The U.S. Supreme Court yesterday denied certiorari in Deyton v. Keller (Docket No. 12-6230, cert. denied 1/22/2013) (Order List).  In the case, the U.S. 4th Circuit Court of Appeals denied a habeas corpus petition from 3 robbers who were sentenced to ten consecutive 64 to 86 month terms for their armed robbery of a church during Sunday services.  Petitioners unsuccessfully claimed that the judge's remarks during sentencing impermissibly referenced religious beliefs. (See prior posting.) The Christian Science Monitor reports on the Supreme Court's denial of review.

Court Documents Show Cover-Up of Abusive Priests By LA Archdiocese

The Los Angeles Times and New York Times reported yesterday that documents filed this month by the Catholic Archdiocese of Los Angeles in a civil action disclose more clearly than before that now-retired Cardinal Roger Mahony and his advisor on sex abuse cases, Msgr. Thomas J. Curry, worked to keep evidence of child molestation by three priests from law enforcement officials.  According to the LA Times:

Fifteen years before the clergy sex abuse scandal came to light, Archbishop Roger M. Mahony and a top advisor plotted to conceal child molestation by priests from law enforcement, including keeping them out of California to avoid prosecution, according to internal Catholic church records released Monday....

[M]emos written in 1986 and 1987 by Mahony and Msgr. Thomas J. Curry ... offer the strongest evidence yet of a concerted effort by officials in the nation's largest Catholic diocese to shield abusers from police. The newly released records, which the archdiocese fought for years to keep secret, reveal in church leaders' own words a desire to keep authorities from discovering that children were being molested.

In the confidential letters, filed this month as evidence in a civil court case, Curry proposed strategies to prevent police from investigating three priests who had admitted to church officials that they abused young boys. Curry suggested to Mahony that they prevent them from seeing therapists who might alert authorities and that they give the priests out-of-state assignments to avoid criminal investigators.

[Thanks to Scott Mange for the lead.] 

Burger King Franchise Settles Religious Accommodation Lawsuit

Courthouse News Service reports that the parties filed a joint motion for entry of a consent decree (full text) on Jan. 16 in EEOC v. Fries Restaurant Management LLC, (ND TX). In the suit, Ashanti McShan, a Pentecostal woman who was hired as a cashier at a Burger King franchise, alleged she was fired after defendant refused to accommodate her religious beliefs and allow her to wear a skirt instead of uniform pants. In the settlement, the restaurant agreed to pay McShan $5,000 in back wages and $20,000 for mental anguish and other damages. The company also agreed to post notices of its non-discrimination policy and conduct training sessions for managers.

Today Is 40th Anniversary of Roe v. Wade; Religious Attitudes and Positions On Repeal Vary

Today is the 40th anniversary of the U.S. Supreme Court's decision in Roe v. Wade. Last week, the Pew Research Center released a survey report titled Roe v. Wade at 40: Most Oppose Overturning Abortion Decision.  The survey found:

White evangelical Protestants are the only major religious group in which a majority (54%) favors completely overturning the Roe v. Wade decision. Large percentages of white mainline Protestants (76%), Black Protestants (65%) and white Catholics (63%) say the ruling should not be overturned. Fully 82% of the religiously unaffiliated oppose overturning Roe v. Wade.

Half of Americans who attend religious services at least weekly favor completely overturning the Roe v. Wade decision, compared with just 17% of those who attend less often.

Pew Forum has also compiled a guide to Religious Groups' Official Positions on Abortion, with links to material on the views of 17 major religious communities.

Georgia's Education Contribution Tax Credit Becomes Controversial Because of Anti-Gay Policies of Schools

The New York Times reported yesterday that the state of Georgia's popular tax credit program for contributions to private school scholarship programs has become controversial because more than 115 religiously sponsored schools that benefit from the program have explicit bans on attendance by gay, lesbian and bisexual students. A 17-page report (full text) issued this month by the Southern Education Foundation documents the problem. The issue is likely to gain attention as State Representative Earl Ehrhart plans to propose an increase in the total amount allocated for tax credits under the program. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

From SSRN:

• Pasquale Annicchino and Nadia Marzouki, Mosques Controversies in the United States: Emotions, Politics and the Right to Religious Freedom, (Annuaire Droit et Religions, Vol. 6, 2012).
• Winnifred Fallers Sullivan, Being Human: Negotiating Religion, Law, and Science in the Classroom and the Courtroom, (January 16, 2013).
• Winnifred Fallers Sullivan, Religious and Legal Particularism and Universality, (January 16, 2013).
• Nehak Bhuta, Two Concepts of Religious Freedom in the European Court of Human Rights, (EUI Working Papers LAW No. 2012/33, Dec. 2012).
• Lance McMillian, Adultery as Tort, (North Carolina Law Review, Vol. 90, 2012).
• Caylee Hong and Rene Provost, Let Us Compare Mythologies, (January 17, 2013).
• Sherman J. Clark, To Teach and Persuade, (Pepperdine Law Review, Vol. 39, p. 1371, 2013).
• Timothy Zick, The Cosmopolitan First Amendment: Protecting Transborder Expressive and Religious Liberties, (Cambridge Univ. Press, Forthcoming).
• Elaine Craig, The Case for the Federation of Law Societies Rejecting Trinity Western University's Proposed Law Degree Program, (Canadian Journal of Women and the Law, Vol. 25, No. 1, 2013).

From SmartCILP and elsewhere:

• Dimitri Cavalli, The Church, Nonprofits, and Taxes, (Catholic World Report, Jan. 18, 2013).
• Michael J. DeBoer, Religious Hospitals and the Federal Community Benefit Standard-- Counting Religious Purpose as a Tax-Exemption Factor for Hospitals, (42 Seton Hall Law Review 1549-1634, 2012).

Lots of Prayer Services Surround Inauguration Today-- Diversity and Controversy

Yesterday, the day of President Obama's official swearing-in, the Obama family attended Sunday services at the historic Metropolitan African Methodist Episcopal Church in Washington. (Huffington Post).  Today's formal Presidential inauguration events will begin with the President attending a worship service at St. John's Episcopal Church across Lafayette Square from the White House. An inauguration day prayer service attended by the President prior to his swearing-in has been a tradition since the time of Franklin Roosevelt. On Tuesday, the President, Vice-President and their spouses will attend the 57th Presidential Inaugural Prayer Service, an interfaith service at Washington National Cathedral. (CNN).

Meanwhile today, two unofficial prayer breakfasts are planned in Washington. (Toledo Blade.) The one sponsored by religious conservatives at the Washington Marriott Wardman Park hotel, the Presidential Inaugural Prayer Breakfast, has become so controversial that the Senate Chaplain, Rev. Barry Black, has withdrawn. However the House Chaplain Rev. Patrick J. Conroy will attend. According to Washington Whispers, the breakfast: "features special guests Pat Robertson, a televangelist whose commentary has managed to offend gays, Haitians and feminists alike, Jonathan Cahn, a preacher who believes some of Obama's actions are apocalyptic, and Joseph Farah, the editor of WorldNetDaily who has long pushed the birther conspiracy theories about the president's citizenship." A second prayer breakfast, sponsored by Ask for America, will be held at the Willard Intercontinental Hotel. It will feature speakers more in line with President Obama's outlook, including Ambassador Suzan Johnson Cook, International Ambassador for Religious Freedom; Rev. Luis Cortes, Jr. President of Esperanza; Dr. Meadowlark Lemon, Mr. Basketball of the Harlem Globetotters; Brian Roquemore, America's All Stars Youth Organization; and Bishop Roderick Caeser, Bethel Gospel Tabernacle, Queens NY.

All of this of course is in addition to the previously reported switch in pastors for the benediction at the formal Inauguration Ceremony.

Recent Prisoner Free Exercise Cases

In Jordan v. Fuller, (10th Cir., Jan. 9, 2013), the 10th Circuit affirmed the dismissal of a claim by an inmate claiming to be affiliated with a religion known as the Ever Increasing Faith alleging violation of his rights when he was refused a non-meat diet.

In Medina v. Youngblood, 2013 U.S. Dist. LEXIS 5481 (ED CA, Jan. 14, 2013), a California federal magistrate judge permitted a Messianic Jewish inmate to pursue his claim for a kosher diet, but rejected his complaint he was denied religious literature.

In Lewis v. Skolnik, 2013 U.S. Dist. LEXIS 6618 (D NV, Jan. 16, 2013), a Nevada federal district court allowed a Hebrew Israelite inmate to proceed with his equal protection challenge to a prison rule that limited kosher meals to inmates who obtained outside verification that they were Orthodox or Conservative Jews. Certain other claims were dismissed.

In Cunningham v. Womack, 2013 U.S. Dist. LEXIS 6286 (WD KY, Jan. 15, 2013), a Kentucky federal district court dismissed a pre-trial detainee's complaint, including a complaint that on one occasion he was told to leave the worship service he had attended numerous times before.

In Hewitt v. Morris, 2013 U.S. Dist. LEXIS 6313 (D SC, Jan. 15, 2013), a South Carolina federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 184677, Dec. 20, 2012) and awarded nominal damages of $1 plus costs to an inmate who complained that he was denied Vaisnavism (Krishna Consciousness) services and religious materials because the Department of Corrections refused to recognize Krishna Consciousness as a religion.

In Quinn v. Knab, 2013 U.S. Dist. LEXIS 7804 (SD OH, Jan. 18, 2013), an Ohio federal magistrate judge recommended denying defendants' claim that a Christian Identity inmate had not exhausted his administrative remedies in attempting to obtain accommodation of dietary and hair length needs so he could take a Nazarite vow.

Appeals Court Upholds Rabbi's Firing With Differing Views On Ministerial Exception

In Ballaban v. Bloomington Jewish Community, (IN App., Jan. 17, 2013), a 3-judge Indiana appellate court, with each judge writing a separate opinion, rejected a rabbi's claim that he had been wrongfully dismissed as congregational rabbi before the end of his 3-year contract.  The congregation claimed that the firing was the result of complaints about the rabbi's angry outbursts and hostile behavior and his placing the tax exempt status of the synagogue at risk by accepting a donation intended for a single recipient and assuring the donor it would be tax deductible. Rabbi Steven Ballaban claimed he was fired in retaliation for his reporting to authorities possible improper conduct by a teacher accused of massaging children under their clothes. The trial court held that while it is likely that Indiana law bars discharge of a member of the clergy for reporting child abuse, plaintiff failed to show that is why he was fired. On appeal, the congregation urged that the trial court was correct because the ministerial exception applies to require dismissal of the suit.  All 3 appeals court judges would affirm the trial court's dismissal of Ballaban's suit, but each on different reasoning.

Judge Brown held that the court need not decide whether the ministerial exception applies when a minister's employment was terminated for reporting child abuse or neglect since the ministerial exception does apply to firings for the other reasons put forward by the congregation, and on appeal Ballaban (appearing pro se) does not challenge the termination of his employment on these grounds. Judge Bailey concurred, arguing:

We should not, and cannot, be drawn into deciding whether an individual engaged in conduct becoming a spiritual leader. Accordingly, the ministerial exception applies and our discussion should proceed no further, despite Rabbi Ballaban’s vigorous efforts to recast the dispute as purely secular conduct involving a statutory duty to report.

Judge Vaidik concurred, saying that: "the ministerial exception does not allow a congregation to fire a spiritual leader who refuses to commit a criminal offense... [However] the designated evidence does not reveal that the reason for Ballaban’s termination was his child-abuse reporting."

NYT: Same-Sex Married Couples Face Continuing Unequal Treatment In Military

A front-page article in today's New York Times explores the continuing unequal treatment of married same-sex couples in the military.  Despite the repeal of Don't Ask, Don't Tell, the Defense of Marriage Act still bars recognition of same-sex marriages for purposes of various benefits. There is also less formal discrimination. At a military retreat at Ft. Bragg designed to help couples cope with the pressures of deployments and relocations, a same-sex couple was asked to leave because they were making others uncomfortable. The retreat was organized by military chaplains, and the lesbian couple had been told in advance that they were welcome. The chaplains now say that was erroneous advice.

District Court Extends Bivens To Damage Actions For Free Exercise Violations

In an important decision last week, a New York federal district court judge extended the Bivens damage remedy for violation of constitutional rights to deprivations of First Amendment free exercise rights.  Turkmen v. Ashcroft, (ED NY, Jan. 15, 2013), grew out of federal government investigative actions in the wake of the 9/11 attacks.  Arab and Muslim non-citizens who had violated the immigration laws were arrested and placed in harsh confinement conditions for several months to encourage their cooperation. According to the court, as part of the operation, officers at the Metropolitan Detention Center and the Passaic Jail interfered with Muslim detainees' ability to observe their religion:

[W]hen the Detainees requested copies of the Koran, officers delayed for weeks or months before providing them; the MDC and the Passaic Jail failed to provide food that conformed to the Halal diet, despite the Detainees’ requests for such food; the MDC had no clock visible to the MDC Detainees, and officers regularly refused to tell them the time of day or the date so they could conform to daily Islam prayer requirements and observe Ramadan; and officers constantly interrupted the Detainees’ prayers by banging on their cell doors, yelling and making noise, screaming derogatory anti-Muslim comments, videotaping them, handing out hygiene supplies, and/or telling them to “shut the fuck up” while they were trying to pray.

The court held that even though the Supreme Court in the Iqbal case expressed skepticism on whether Bivens should be available for free exercise violations, it would extend Bivens because otherwise there is no remedy available to plaintiffs for the free exercise violations:

[P]laintiffs are not complaining simply about facially neutral BOP policies that substantially burden their free exercise of religion. If they were, I might conclude that their “full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief . . . and grievances filed through BOP’s Administrative Remedy Program ... provides sufficiently meaningful redress to preclude the implication of a Bivens damages remedy. But the plaintiffs allege a series of acts that were directed only at them (and the class of detainees they seek to represent) with the specific intent to deny them the right to practice their religion... The precise purpose of the Bivens damages remedy is to deter individual officers from engaging in such unconstitutional conduct.

The court also allowed plaintiffs to move forward with their Bivens equal protection claim against MDC officials charging implementation of policies specifically targeting Arabs and Muslims.

The Center for Constitutional Rights has background and links to all the primary source documents in the long running case that was filed as a class action.

Pakistan's Ambassador To U.S. Faces Blasphemy Investigation At Home

According to reports this week from the Pakistan News Service and from Dawn, a two-judge panel of Pakistan's Supreme Court has ordered the Multan City Police Officer to investigate a complaint that Pakistan's ambassador to the United States, Sherry Rehman, committed blasphemy in November 2010 in an interview on a talk show on a private TV channel.  Presumably the interview related to Rehman's attempt at that time to get the National Assembly to eliminate the death penalty for blasphemy. Lower courts had refused to register a case against Rehman. According to NBC News, the complaint against Rehman was filed by Muhammad Faheem Ahkter Gill, a 31-year-old owner of a marble business in the city of Multa who said he felt it was his responsibility to do something about the remarks by Rehman which he felt were derogatory to the Prophet Muhammad.

Canadian Law Deans Oppose New Christian Law School Because of Its Bar On Same-Sex Relationships

In Canada last June, Trinity Western University, a Christian liberal arts university in British Columbia, proposed to start a new law school. This week, the Vancouver Sun and the National Post report that deans of other Canadian law schools are opposing the proposal because of its Biblical-based "community covenant" which requires staff, faculty and students to refrain from homosexual relationships (as well as gossip, lying, smoking and consuming alcohol).  In a letter to the Federation of Canadian Law Societies from the Council of Canadian Law Deans written last November, but only made public recently, the deans say:

This is a matter of great concern for all members. … Discrimination on the basis of sexual orientation is unlawful in Canada and fundamentally at odds with the core values of all Canadian law schools.

The deans also question whether true academic freedom exists at the university because of the community covenant. However supporters of the university say that the deans have an anti-religious bias. In 2001, the Canadian Supreme Court in Trinity Western University v. British Columbia College of Teachers, upheld  the right of Trinity Western's teacher training program to apply the community covenant to bar homosexual relationships.

Tax Court Rejects Free Exercise and Equal Protection Challenge To Exclusion of Navajo Clan Relatives As Children

In Begay v. Commissioner, (USTC, Jan. 16, 2013), the U.S. Tax Court held that the definition of dependents in Sec. 152 of the Internal Revenue Code does not violate the free exercise or equal protection rights of a taxpayer who is a tribal elder of the Navajo Indian Nation.  At issue was the government's refusal to allow petitioner to treat a "clan relative" as a "qualifying child" in order to obtain head of household filing status, the earned income credit, and child tax credit. In Navajo culture and tradition, children are considered children of everyone in their clan. Taxpayer argued that the exclusion from the section 152(c)(2) of obligatory clan-based relationships violates her free exercise and equal protection rights.

4th Circuit: Public Schools Not Required To Provide Rehabilitation Act Services To Students In Private Religious Schools

In D.L. v. Baltimore City Board of School Commissioners, (4th Cir., Jan. 16, 2013), the U.S. 4th Circuit Court of Appeals held that Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) does not require the Baltimore city school board to provide educational services to students enrolled in private religious schools.  Here the parents of a student in a Jewish school sought special services for their 8th grader who suffered from ADHD and anxiety.  The court also concluded that requiring a student to enroll in public school in order to access Section 504 services does not unconstitutionally infringe free exercise rights or parents' right to choose a private religious school for their child. It said:

The right to a religious education does not extend to a right to demand that public schools accommodate Appellants’ educational preferences.... The school board need not serve up its publicly funded services like a buffet from which Appellants can pick and choose.

USCIRF Calls on Iran To Release American Pastor Held On National Security Charges

The U.S. Commission on International Religious Freedom issued a press release on Wednesday calling for the government of Iran to release Iranian-American pastor Saeed Abedeni who was arrested in September for his involvement with the underground house church movement. According to USCIRF:

The national security charges leveled against Mr. Abedini are bogus and are a typical tactic by the Iranian government to masquerade the real reason for the charges: to suppress religious belief and activity of which the Iranian government does not approve.

Abedini apparently is scheduled to come before Revolutionary Court judge Pir-Abbassi next week. The judge is known for swift trials and harsh penalties.

Cemetery Trust Assets Included In Bankruptcy Estate of Milwaukee Archdiocese

In Listecki v. Official Committee of Unsecured Creditors, (ED WI Bkrptcy., Jan. 17, 2013), a Wisconsin federal bankruptcy court rejected attempts by the Archbishop of Milwaukee in the Archdiocese's Chapter 11 reorganization case to shield assets of a Catholic Cemetery Perpetual Care Trust from creditors. The Trust argued that including its assets in the bankruptcy estate would violate the Religious Freedom Restoration Act and the free exercise clause of the 1st Amendment. The court disagreed, concluding that RFRA only applies against the government, not in a suit against the creditors' committee which not a government actor and is not acting under color of law.  The court also concluded that RFRA may not be used to invalidate a state law, such as the Wisconsin fraudulent transfer law; and neutral, generally applicable provisions of the Bankruptcy Code do not violate the 1st Amendment's free exercise clause.

Meanwhile, the Milwaukee Journal-Sentinel reported yesterday that in the Archdiocese's bankruptcy proceedings, lawyers for sex-abuse victims are now asking the court to make public all records involving credibly accused priests, as well as their depositions and other documents. The request comes after a controversy over the Archdiocese's failure to provide the Fond du Lac police department information on an accused and defrocked priest.

Catholic Schools In Indonesian Municipality Agree To Give Koranic Education To Muslim Students

The Jakarta Post reported yesterday that six Catholic schools in the Indonesian municipality of Bitar, East Java, have agreed to provide offsite Islamic lessons to their Catholic students in compliance with Mayoral Decree No. 8/2012 issued last year requiring all Muslim students to be able to read and write Koranic verses. City officials had threatened to close down the six schools if they did not comply.  Indonesia's education law provides that every student is entitled to receive religious education imparted by an educator of the his or her religion, and that the government must furnish such teachers if a private school cannot do so. Apparently this provision has not been enforced against Islamic schools that have Buddhist, Christian or Hindu students enrolled.

Another Missouri Town Enacts Funeral Picketing Ban

Citing an 8th Circuit en banc decision last October upholding another Missouri town's funeral picketing ban, Creve Coeur, Missouri has now passed its own ordnance aimed at picketing by the Kansas-based Westboro Baptist Church.  The Creve Coeur Patch reported that the ordinance, passed last Monday, bans protests knowingly taking place within 300 feet of "any residence, cemetery, funeral home, church, synagogue, or other establishment or location during or within one (1) hour before or one (1) hour after any actual funeral or burial service at that place."

Contempt Sanctions Imposed On Russian Government For Failure To Return Expropriated Jewish Books

In Agudas Chasidei Chabad of the United States v. Russian Federation, (D DC, Jan. 16, 2013), the D.C. federal district court held the Russian government and three of its agencies in civil contempt for not complying with a 2010 default judgement ordering it to return two expropriated collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States.  Despite objections by the United States government, the court imposed civil sanctions of $50,000 per day until defendants comply with the court's order.  Blog of the Legal Times reports on the decision.

UPDATE: According to Interfax (Jan. 17), the Russian presidential representative for international cultural cooperation Mikhail Shvydkoy does not understand the court's contempt findings. He said:

Russia earlier honored all agreements on this issue. The problem was discussed within the Gore-Chernomyrdin commission's framework, and we reached quite a reasonable compromise with the American side then. We set up the Center of Oriental Literature at the Russian State Library, where, in particular, the Schneerson collection is stored, and it is accessible to any citizens, including Russian and others. A prayer room was also set up there, where religious cults can be observed. I had assumed the issue was settled.

He added: "Transferring books from the Russian State Library violates the law, it is prohibited."

Study On Texas Public School Bible Courses Released

Yesterday the Texas Freedom Network released a study titled Reading, Writing & Religion II: Texas Public School Bible Courses in 2011-12. Key findings are:

Many Bible course teachers lack the proper training required by the Legislature. Moreover, curriculum standards adopted by the State Board of Education are far too broad to help school districts create academically sound and legally appropriate courses. Consequently, many courses are not academically rigorous and include numerous errors, distortions and other problems.

Many Bible courses reflect the religious beliefs of the teachers and sectarian instructional materials they use in their classrooms. In every course in which religious bias is present, instruction reflects a Protestant -- most often a conservative Protestant -- perspective, including a literal interpretation of the Bible.

Many courses teach students to interpret the Bible and even Judaism through a distinctly Christian lens. Anti-Jewish bias -- sometimes intentional but often not -- is not uncommon.

A number of courses and their instructional materials incorporate pseudo-scholarship, including claims that the Bible provides scientific proof of a 6,000-year-old Earth (young Earth creationism) and that the United States was founded as a Christian nation based on biblical Christian principles. At least one district's Bible course includes materials suggesting that the origins of racial diversity among humans today can be traced back to a curse placed on Noah's son in the biblical story of the flood. Such claims have long been a foundational component of some forms of racism.

Despite the state's failure to implement HB 1287 effectively, a number of school districts did succeed in offering Bible courses that largely comply with legal and constitutional requirements, are academically serious and avoid many of the serious problems noted in most other districts. These successful courses can be found in urban, suburban and rural districts.

1st Circuit: Establishment Clause Challenge To HHS Contract With Bishops Is Moot

In American Civil Liberties Union of Massachusetts v. United States Conference of Catholic Bishops, (1st Cir., Jan. 15, 2013), the U.S. 1st Circuit Court of Appeals remanded with instructions to dismiss as moot a suit brought in 2009 alleging that the U.S. Department of Health and Human Services violated the Establishment Clause when it contracted with the U.S. Conference of Catholic Bishops to provide services under the Trafficking Victims Protection Act. The appeals court held that the expiration of the contract with USCCB rendered the challenge moot, rejecting the district court's conclusion that the case fell under the "voluntary cessation" exception to the mootness doctrine. The 1st Circuit also held that the exception for conduct "capable of repetition, yet evading review" does not apply. [Thanks to Alliance Alert for the lead.]

Today Is Religious Freedom Day

Today is Religious Freedom Day, the anniversary of the passage of the Virginia Statute for Religious Freedom in 1786.  Each year the President issues a proclamation marking the day. So far this year's proclamation has not been posted on the White House website.  Presumably it will appear later today and this post will be updated with a link to it.

UPDATE: Here is the Presidential Proclamation-- Religious Freedom Day 2013.

New Pick To Deliver Inauguration Benediction Reported

CNN reports that Rev. Luis León, pastor of St. John's Episcopal Church, located across Lafayette Park from the White House, has been chosen to deliver the benediction at President Obama's inauguration next Monday. León replaces evangelical pastor  Louie Giglio who withdrew after an anti-gay sermon he preached in the 1990's surfaced. (See prior posting.) León, a naturalized citizen, was born in Cuba and came to the United States at age 11.

Polish Court Upholds Cross Hanging In Parliament

According to a report yesterday from Polskie Radio, a trial court in Poland has ruled against 7 members of Parliament from the anti-clerical Palikot's Movement party who sought to have a cross that hangs in the debating chamber of Parliament removed.  Plaintiffs claimed that the presence of the cross favored one religion over another.  However, Judge Alicja Fronczyk held that "the presence of a religious symbol in a public place, such as parliament, does not violate freedom of conscience." Plaintiffs intend to appeal.

Another Small Business Challenge To Federal Contraceptive Coverage Mandate Filed

Yet another lawsuit by a for-profit small business challenging the Affordable Care Act contraceptive coverage mandate was filed Monday-- this time by a Missouri-based plumbing products corporation and its Catholic owners.  The complaint (full text) in Sioux Chief Mfg. Co., Inc. v . Sebelius, (WD MO, filed 1/14/2013), contends that the mandate violates plaintiffs' rights under the 1st and 5th Amendments, the Religious Freedom Restoration Act, and the Administrative Procedure Act.  Alliance Defending Freedom issued a press release announcing the filing of the case.

TRO Issued In Small Business Conscience Challenge To State Contraceptive Mandate

In recent months there has been an outpouring of religious liberty concerns over the federal contraceptive coverage mandate. However, as pointed out by The Catholic Review, 28 states have their own contraceptive coverage mandates, albeit with religious employer exemptions of various sorts, and often with exclusions for self-insured ERISA plans. Courts in New York and California have upheld state mandates over objections of church agencies, and the U.S. Supreme Court refused review in both cases.  Now a new challenge to a state mandate-- this time in Illinois-- has met initial success in a case brought by a Catholic-owned small business.  Triune Health Group, Inc. has already won a preliminary injunction against the federal mandate. (See prior posting.) Now, in Yep v. Illinois Department of Insurance, (Dupage Co. IL Cir. Ct., Jan. 15, 2013), an Illinois state trial court has issued a temporary restraining order against the Illinois state insurance mandate (215 ILCS 5/356z.4) in a suit by Triune and its Catholic owners who claim that the state mandate violates the rights guaranteed to them by the Illinois Religious Freedom Restoration Act, the Illinois Health Care Right of Conscience Act and the Illinois state constitution.  The court concluded that "Plaintiffs have raised a fair question as to the likelihood of success on their claim that the contraception mandate imposes a substantial burden on their religious exercise." Thomas More Society issued a press release announcing the decision.

Zoning Challenge Fails Under RLUIPA But Succeeds On Other Grounds

In New England Prayer Center, Inc. v. Planning & Zoning Commission of the Town of Easton, 2012 Conn. Super. LEXIS 3063 (CT Super, Dec. 13, 2012), the New England Prayer Center sought a special permit so it could build a house of worship on land it leased from the town.  The Zoning and Planning Commission granted the permit only with a number of conditions attached. Plaintiff challenged 5 of the conditions. A Connecticut state trial court held that plaintiff had not shown RLUIPA violations, but the court sustained on other grounds plaintiff's objections to the conditions placed on it. The trial court speculated that plaintiff had purposely made little effort to focus on RLUIPA claims in order to later assert those claims in federal court, as permitted by 42 USC 2000cc-2(c) where there has not been a full and fair adjudication of the claim in state court.

European Court of Human Rights Vindicates Britain In 3 of 4 Cases Denying Accommodation of Christian Beliefs

Yesterday, seven judges sitting as a Chamber of the European Court of Human Rights handed down a decision in four widely followed employment discrimination cases brought by Christians in Great Britain who sought accommodation of their religious beliefs. (See prior posting.) Two of the cases involve women employees whose employers prevented them from wearing a cross on a necklace.  The other two cases involve claims that religious beliefs opposed to same-sex marriage and homosexual relationships should be accommodated.  In Eweida and Others v. United Kingdom, (ECHR 4th Section, Jan. 15, 2013), the court held that there had been a violation of Art. 9 (Freedom of Religion) of the European Convention on Human Rights in only one of the cases.  By a vote of 5-2, the court held that the United Kingdom violated Art. 9 by failing to adequately protect British Airways employee Nadia Eweida who wanted an exception to the airline's uniform rules so she could wear a visible cross around her neck. The court awarded her damages of 2000 Euros and costs of 30,000 Euros.

British law bars employment discrimination unless the employer can show that its requirements constitute "a proportionate means of achieving a legitimate aim." As to Ms. Eweida, the Court majority said:

[A] fair balance was not struck. On one side of the scales was Ms Eweida’s desire to manifest her religious belief.... [T]his is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image.... [W]hile this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.

However in the case of Shirley Chaplain, a geriatric ward nurse at a state hospital, the court held unanimously that the requirement she remove her necklace displaying a cross to prevent injury when handling patients was justified.

The third case involved Lillian Ladele, a local registrar of births, deaths and marriages, who refused on religious grounds to conduct civil partnership ceremonies. In a 5-2 decision, the Court rejected Ladele's claims under Art. 9 and the non-discrimination requirements of Art. 14, holding that local authorities are given "a wide margin of appreciation" in balancing religious freedom rights with the mandate not to discriminate on the basis of sexual orientation. Two judges dissented, saying that the issue is primarily one of freedom of conscience. They continued:

Instead of practising the tolerance and the “dignity for all” it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal... Ms Ladele did not fail in her duty of discretion: she did not publicly express her beliefs to service users.  Her beliefs had no impact on the content of her job, but only on its extent. She never attempted to impose her beliefs on others, nor was she in any way engaged, openly or surreptitiously, in subverting the rights of others. Thus ... the means used were totally disproportionate.

The fourth case involved Gary McFarlane, who was a counselor at an organization that provides sex therapy and relationship counselling. He was dismissed after he expressed concern on grounds of his Christian religious beliefs about providing psycho-sexual therapy to same-sex couples. The court unanimously rejected  his claim of discrimination and infringement of religious freedom, saying:  "the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination."

The Chamber judgment can be appealed to the Court's 17-judge Grand Chamber. The Guardian reports on the decision, as does a press release from Alliance Defending Freedom.

Bibliography of 2012 Law and Religion Publications Released By AALS

The AALS Section on Law and Religion has just issued its Dec. 2012 Newsletter which includes a comprehensive 20-page bibliography of relevant books and articles published during 2012, as well as a list of blogs relating to law and religion. (Note: The linked newsletter is an updated Jan. 22 version).

1st Amendment No Bar To Court Deciding Claim on Injury While Lighting Votive Candle

In Brady v. Star of the Sea Church Corporation of Unionville, Connecticut, 2012 Conn. Super. LEXIS 3038 (CT Super. Ct., Dec. 14, 2012), a Connecticut trial court rejected a Catholic church's 1st Amendment defense to a damage claim against it by plaintiff who was injured while attempting to light a votive candle near the church's altar.  A loose kneeling pad in front of already lighted candles caused plaintiff to lurch forward and sustain injuries from her blouse being ignited. The court rejected the church's argument that placement of the kneeling pads and candles are a matter within its discretion in interpreting religious law. The court instead held that "plaintiff's claims can be resolved by the court applying only neutral principles of law that do not intrude on religious decisions within the church sanctuary."

"American Taliban" Inmate Wins RFRA Challenge To Muslim Prayer Restrictions

The media, such as this article in the Lafayette, Indiana Journal and Courier, are giving a good deal of attention to an Indiana federal district court's decision in Lindh v. Warden, Federal Correctional Institution, Terre Haute, Indiana, (SD IN, Jan. 11, 2013), the successful RFRA challenge by so-called "American Taliban" John Walker Lindh, now in federal prison, to a policy prohibiting daily group prayer by Muslim inmates housed in the prison's Communications Management Unit. The court found that:

congregate prayer activity that the Plaintiff seeks, which is the same congregate activity that occurred without serious incident for at least three years in the CMU, is not significantly different than any other group activity that is already allowed in the CMU. It is not a formal service with a sermon. It is instead a brief meeting to engage in ritualistic prayer. It is uncontested, for example, that Muslim prisoners may gather together in the multi-purpose room, without restriction on number, to listen or watch recordings, in Arabic, of verses from the Koran. Given that this activity is already allowed, along with a host  of other congregate activities, allowing persons to recite short formulaic prayers is entirely consistent with the activities that are allowed in the CMU.

The court concluded that current restrictions impose a substantial burden on Lindh's religious exercise, and are not the least restrictive means of achieving a compelling governmental interest.

A Survey of Law School Teaching Materials On Religious Liberty, Law and Religion

As the new semester begins at American law schools, here is a guide to in-print casebooks and  materials for teaching of law school courses on religious liberty or law and religion.  Books are listed by date of publication, most recent first:

• Edward J. Larson, Creationism in the Classroom: Cases, Statutes, and Commentary (West, 2013).
• John T. Noonan, Jr. and Edward M. Gaffney, Religious Freedom: History, Cases and Other Materials on the Interaction of Religion and Government, 3d (Foundation Press, 2011).
• Michael W. McConnell , John H. Garvey , Thomas C. Berg, Religion and the Constitution, Third Edition, (Wolters Kluwer, 2011).
• Understanding Islamic Law, (Lexis-Nexis, 2011).
• Leslie C. Griffin, Law and Religion, Cases and Materials, 2d (West, 2010).
• Arthur D. Hellman, William D. Araiza and Thomas E. Baker, First Amendment Law: Freedom of Expression & Freedom of Religion, Second Edition (Lexis-Nexis, 2010) with 2012 Supplement.
• Leslie C. Griffin, Law and Religion: Cases in Context, (Wolters Kluwer, 2010).
• Daniel O. Conkle, Constitutional Law - The Religion Clauses, 2d (Turning Point Series)  (Foundation Press, 2009).
• Alan E. Brownstein and Leslie Jacobs, Global Issues in Freedom of Speech and Religion: Cases and Materials (West, 2009).
• W. Cole Durham Jr. and Brett G. Scharffs, Law and Religion: National, International, and Comparative Law Perspectives, (Wolters Kluwer, 2009).
• Frank S. Ravitch, Law and Religion, A Reader: Concepts, Cases and Theory, 2d (West, 2008).
• Stephen G. Gey, Religion and the State, Second Edition, (Lexis-Nexis, 2006).
• James S. Serritella, et. al., Religious Organizations in the United States: A Study of Identity, Liberty, and the Law, (Carolina Academic Press, 2006).
• Eugene Volokh, The Religion Clauses and Related Statutes: Problems, Cases and Policy Arguments (Foundation Press, 2005).
• Martin H. Belsky and Joseph Bessler-Northcutt, Law and Theology, (Carolina Academic Press, 2005).
• Thomas C. Berg, The State and Religion in a Nutshell, 2d (West, 2004).
• Michael S. Ariens and Robert A. Destro, Religious Liberty in a Pluralistic Society, Second Edition (Carolina Academic Press, 2002).
• Rodney A. Smolla, The First Amendment: Freedom of Expression, Regulation of Mass Media, Freedom of Religion (Carolina Academic Press, 2000).
• Arnold H. Loewy, Religion and the Constitution: Cases and Materials (West, 1999), with 2002 Supplement.
• Justice Menachem Elon, Jewish Law (Mishpat Ivri): Cases and Materials, (Lexis-Nexis, 1999).

Satanic Temple Calls Rally To Thank Florida Governor For Backing Bill Allowing Student Inspirational Messages

Last year, a new Florida law authorized school districts to adopt policies allowing inspirational messages to be composed and delivered by students at student assemblies. (See prior posting.)  Yesterday the Huffington Post reported on a new development that likely will distress some who supported the new law. In a press release last week, the Satanic Temple announced a January 25 rally outside the Governor's Office to thank Gov. Rick Scott for his strong support of the bill.  According to the press release, the new law "has reaffirmed our American freedom to practice our faith openly, allowing our Satanic children the freedom to pray in school."

Florida Agrees To Reinstitute Prison Kosher Meals

Today JTA reports that the Florida Department of Corrections agreed last week to reinstitute kosher food availability for Jewish inmates. Florida cancelled its kosher food program 5 years ago. Last year the U.S. Justice Department sued the state under RLUIPA challenging the food program cancellation. (See prior posting.)  A state study group on the issue says that kosher meals cost the state $146,000 per year. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Recent Articles and Book of Interest

From SSRN:

• Haider Ala Hamoudi, Religious Minorities and Shari’a in Iraqi Courts, (Boston University International Law Journal, 2013, Forthcoming).
• Mark Anthony Frassetto, Catholic Emancipation: 1760-1829, (January 9, 2013).
• Donn Short, Queering Schools, GSAs and the Law: Taking on God, (Gerald Walton, ed, The Gay Agenda: Claiming Space, Identity & Justice, New York: Peter Lang, 2013).
• Wayne Barnes, Render Unto Rawls: Law, Gospel, and the Evangelical Fallacy, (January 11, 2013).
• Adilson Jose Moreira, We are Family! Legal Recognition of Same-Sex Unions in Brazil, (American Journal of Comparative Law, Vol. 60, No. 4, 2012).
• Joseph Benjamin Landau, DOMA and Presidential Discretion: Interpreting and Enforcing Federal Law, (Fordham Law Review, Vol. 81, 2012).
• Joseph Benjamin Landau, Symposium Foreword to Defense of Marriage Act: Law, Policy, and the Future of Marriage, (Fordham Law Review, Vol. 81, p. 537, 2012).
• Shafi'i Abdul Azeez Bello, Application of 'Urf in Islamic Law, (January 11, 2013).

From SmartCILP and elsewhere:

• Stewart L. Harris, Which Bible? Which God?, (12 Appalachian Journal of Law 151-166, 2012).
• Faisal Kutty, Free Expression and an Elusive Middle Ground: Part Two, (JURIST - Forum, Jan. 7, 2012).

Recent Book:

• Andrew Koppelman, Defending American Religious Neutrality, (Harvard Univ. Press, Jan. 2013), reviewed by Daily Northwestern.

Hobby Lobby Finds Way To Delay Accrual of Affordable Care Act Penalties

Hobby Lobby, whose high-profile challenge to the Affordable Care Act contraceptive coverage mandate has so far been unsuccessful, has found a way to put off the accrual of $1.3 million per day fines that it would otherwise face for refusing to furnish employees health insurance coverage that meets minimum federal standards. As reported by CNN, in statement from its general counsel Hobby Lobby says it has shifted the beginning of its health care plan year, thus delaying for several months the requirement that it comply with the Women's Preventive Services coverage mandate.  Under the coverage guidelines, compliance is required at the beginning of the company's first plan year after Aug. 1, 2012.

Turkey Agrees To Return Land To Famous Orthodox Seminary

In 2011, Turkey's prime minister Recep Tayyip Erdogan issued a decree returning to minority religious groups hundreds of properties that have been seized since 1936. (See prior posting.) Now according to Greek Reporter, on January 11 Turkey’s Council of Foundations agreed to return 470 acres, of forest land to Aya Triada Monastery Foundation which owns Istanbul's Greek Orthodox Halki (Heybeliada) Seminary. This is the largest expanse of property returned to a non-Muslim community since the 2011 decree. The return is particularly notable because the now-closed seminary trained generations of Greek Orthodox leaders including Patriarch Bartholomew. A push to reopen the seminary has been a high-profile religious liberty issue internationally. (See prior posting.)

Recent Prisoner Free Exercise Cases

In Green v. Sneath, (3d Cir., Jan. 7, 2013), the 3rd Circuit rejected an inmate's claim that his 1st Amendment and RLUIPA free exercise rights were infringed when his Qur'an was taken from him during his cell transfer.

In Curry v. California Department of Corrections, 2013 U.S. Dist. LEXIS 1659 (ND CA, Jan. 4, 2013), a California federal district court rejected challenges by an inmate who is an adherent of Shetaut Neter to prison officials' refusal to provide him with a Kemetic diet in place of one of the prison's existing religious meal plans.

In Kleinfeldt v. Gore, 2013 U.S. Dist. LEXIS 1618 (SD CA, Jan. 2, 2013), a California federal district court dismissed with leave to amend an inmate's complaint that he was given kosher meat that was inedible and so was forced to compromise his Jewish religious beliefs.

In Allah v. Virginia, 2013 U.S. Dist. LEXIS 2526 (WD VA, Jan. 8, 2013), a Virginia federal district court permitted an inmate to proceed with his challenge to prison officials' refusal to recognize as a religion the Nation of Gods and Earths, and their refusal to permit NGE inmates to meet and hold religious services and otherwise practice their religion.

In Gayle v. Lamont, 2013 U.S. Dist. LEXIS 3257 (ED PA, Jan. 9, 2013), a Pennsylvania federal district court dismissed on statute of limitations grounds claims of a Rastafarian inmate that he received meals that did not meet his vegetarian diet requirements.

In Munn v. Morris, 2013 U.S. Dist. LEXIS 3287 (WD AR, Jan. 8, 2013), an Arkansas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 183982, Sept. 11, 2012) and dismissed an inmate's free exercise claim. The claim apparently was that the prison offered only Christian worship and had no chapel.

In Bowens v. Smith, 2013 U.S. Dist. LEXIS 2956 (ND NY, Jan. 8, 2013), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 183948, Dec. 7, 2012) and permitted an inmate to proceed with his complaint that while he was in Administrative Segregation he was not permitted to attend congregate religious services or even have a minister visit him.

In Meece v. Commonwealth of Kentucky, (KY App., Jan. 11, 2013), a Kentucky state appeals court rejected a Jewish death row inmate's complaint that he was only allowed to visit the Institutional Religious Center at the prison on the same day as other death row inmates and was not allowed to visit there on Friday evenings and Saturday mornings to observe his Sabbath. He was restricted to observing his Sabbath from his cell.

Mennonnite-Owned Business Denied Preliminary Injunction Against Contraceptive Coverage Mandate

In Conestoga Wood Specialties Corp. v. Sebelius, (ED PA, Jan 11, 2013), a Pennsylvania federal district court refused to issue a preliminary injunction against enforcement of the Affordable Care Act’s contraceptive coverage Mandate in a suit brought by a small wood specialties manufacturing company and its five Mennonite Christian owners (the Hahn family). The Hahns believe it would sinful for them in any way contribute to the use of abortifacient contraception.

The court held that secular, for-profit corporations lack free exercise rights under the 1st Amendment and the Religious Freedom Restoration Act, despite the Supreme Court’s holding in Citizens United that corporations have free expression rights. The court also rejected the argument that the corporation could assert its shareholders’ free exercise, saying:

It would be entirely inconsistent to allow the Hahns to enjoy the benefits of incorporation, while simultaneously piercing the corporate veil for the limited purpose of challenging these regulations.

Moving to the owner’s own assertion of their free exercise rights, the court held that for 1st Amendment purposes, the Mandate is a neutral law of general applicability supported by a legitimate governmental interest.  The court also rejected the Hahn family’s claims under the Religious Freedom Restoration Act, concluding that the Mandate does not impose a substantial burden on their exercise of religion:

First, we reject the notion … that a plaintiff shows a burden to be substantial simply by claiming that it is….  

We also find that any burden imposed by the regulations is too attenuated to be considered substantial.  A series of events must first occur before the actual use of an abortifacient would come into play….. 

Finally, we understand, and have carefully considered the fact that the Hahns may be … more concerned with the burden imposed on their religion by the requirement that they provide insurance coverage that may be used to “pay for, facilitate, or otherwise support abortifacient drugs.” … We respect and fully appreciate this concern, and in no way dispute or denigrate its legitimacy and its effect as a burden upon the Hahns’ religious beliefs. However, a line must be drawn delineating when the burden on a plaintiff’s religious exercise becomes “substantial.”  We conclude that, here, that line does not extend to the speculative “conduct of third parties with whom plaintiffs have only a commercial relationship.”

The court also rejected plaintiffs’ Establishment Clause and free speech challenges to the ACA Mandate. (See prior related posting.)

Religion Clause readers may be interested in my new essay posted on Religion Dispatches discussing small business challenges to the contraceptive coverage Mandate.

Federal Court Refuses To Enjoin NYC Circumcision Informed Consent Rule

In Central Rabbinical Congress of the USA & Canada v. New York City Department of Health & Mental Hygiene, (SD NY, Jan. 10, 2013), a New York federal district court 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 rule stems from concerns that those Orthodox Jewish mohels using the method can pass on herpes infections to infants. (See prior posting.)  In a 93-page opinion, the court, rejected both compelled speech and free exercise facial challenges to the rules. The court concluded since parents will likely be able to obtain the consent forms from various sources, not just from the mohel who will perform the ceremony, parents will be able to give the signed form to the mohel without any communicative action by the mohel.  It found that for free exercise purposes, the health department regulation is a neutral law of general applicability that protects children's health and parents' ability to care for their children:

Although there are no known instances other than MBP in which direct oral suction during circumcision is practiced, the facial neutrality test is satisfied because the language of the regulation is secular.... Section 181.21 does not accomplish a “religious gerrymander[]” through underinclusiveness ..., nor does it impose “‘gratuitous restrictions’ on religious conduct” through overinclusiveness....

Reuters reports on the court's decision. (See prior related posting.)

Pastor Withdraws From Inaugural Benediction After Furor Over Past Anti-Gay Sermon

As previously reported, Rev. Louie Giglio had been invited to deliver the benediction at President Obama's inauguration later this month.  Now CNN and the New York Times report that Giglio has withdrawn from delivering the benediction in the wake of a furor created when a controversial anti-gay sermon he preached in the mid-1990's surfaced on Think Progress blog. In a statement delivered to the White House and the Presidential Inaugural Committee yesterday, Giglio said in part:

Due to a message of mine that has surfaced from 15-20 years ago, it is likely that my participation, and the prayer I would offer, will be dwarfed by those seeking to make their agenda a focal point of the inauguration. Clearly, speaking on this issue has not been in the range of my priorities in the past fifteen years. Instead, my aim has been to call people to ultimate significance as we make much of Jesus Christ.

The full text of the statement and additional comments have been posted by Giglio on PassionCityChurch blog.

Meanwhile, separately the Presidential Inaugural Committee yesterday announced that President Obama will take the oath on Sunday on the Robinson family Bible, and at the formal ceremonies on Monday will use two  Bibles-- one used by Abraham Lincoln at his first Inauguration (which Obama used in 2009), and a Bible used by the Reverend Dr. Martin Luther King, Jr.

British Appellate Tribunal Upholds Requirement That Christian Care Worker Must Work On Sundays

In Mba v. Mayor and Burgesses of the London Borough of Merton, (EAT, Dec. 13, 2012), Britain's Employment Appeal Tribunal rejected a religious discrimination claim by a care worker at a children's home who was required to work on Sundays in violation of her Christian religious beliefs.  It upheld a decision of an Employment Tribunal in the case that "the employer’s aim in seeking to ensure that all full-time staff worked on Sundays in rotation was legitimate, and was objectively justified, so that she could lawfully be required to do so."   One ground of appeal was that the Tribunal had improperly considered whether not working on Sunday was a "core" Christian belief.  The Appeal Tribunal said that "by using the expression 'core' the Tribunal intended to reflect the evidence put before it from an Anglican bishop that only some Christians felt obliged to abstain from Sunday work – it was thus permissibly commenting on the degree to which Christians numerically would be affected, and not attempting to tell them what was important in their faith." The Guardian yesterday reporting on the opinion complains about the delay by the Employment Appeal Tribunal in posting decisions on its website.

High School Teacher Sues Over Directive To Remove Religious Materials From Classroom

A Cheektowaga, New York high school science teacher has filed a federal court lawsuit against her school district complaining that she was required to remove all personal non-curricular items of a religious nature from her classroom and refrain from promoting religion in her communications with students. The complaint (full text) in Silver v. Cheektowaga Central School District, (WD NY, filed 1/10/2013), asserts that plaintiff Joelle Silver is a devout Christian, and that the school district policy allows teachers to display personal messages, including inspirational messages, in their classrooms and offices-- such as those by the school's social worker promoting gay rights. School officials sent Silver a "counseling letter" telling her to remove from her classroom her posters containing religious messages, a drawing depicting 3 crosses, sticky notes she placed on her desk displaying Biblical quotations, and the Bible Study Club's prayer request box.  The letter also complained that Silver, as monitor of the school's Bible Study Club, was going further and participating in its meetings and activities in violation of school policy.  Silver claims these actions violate the free expression, establishment clause and equal protection provisions of the U.S. Constitution. American Freedom Law Center announced the filing of the lawsuit. The Buffalo News reports that the school's actions came after it received two letters from the Freedom From Religion Foundation.

Marine Corps Judge Advocate Says Base Spouse Clubs Must Admit Same-Sex Spouses

AP reported yesterday that the Marine Corps Staff Judge Advocate has advised its legal officers that spouses clubs operating on Marine bases must admit same-sex spouses. Private organizations are permitted to operate on military bases only if they do not discriminate on the basis of race, religion, gender, age, disability and national origin.  The Staff Judge Advocate advised: "We would interpret a spouses club’s decision to exclude a same-sex spouse as sexual discrimination because the exclusion was based upon the spouse’s sex." The memo was issued after a controversy last month at the Army's Fort Bragg base where a same-sex spouse was denied membership in the Association of Bragg Officer’s Spouses. God and Country blog covers the Marine Corps' latest action.

Ohio Middle School Will Not Remove Jesus Portrait

In the southern Ohio town of Jackson Tuesday night, the school board decided that it will not take down a picture of Jesus that has hung in Jackson Middle School since 1947, despite a complaint from the Freedom From Religion Foundation.  The Columbus Dispatch reports that 300 people turned out for the school board meeting, and only two spoke in favor of removing the picture.  School superintendent Phil Howard said: "the picture is legal because it has historical significance. It hasn’t hurt anyone." The picture was originally provided by a student club and hangs among other pictures in a "hall of honor."

Biden Meets With Faith Leaders On Gun Violence Issue

CNN reports that Vice President Joe Biden and his gun violence committee held an unannounced meeting last night with 12 national faith leaders representing Catholic, Protestant, Evangelical and Pentecostal Christian, Jewish, Muslim, Sikh and Hindu communities. Topics discussed included protection of religious buildings and religious intolerance. Biden asked the faith leaders to use their moral voices to find solutions to the gun violence problem. This was part of a series of meetings with various groups that have an interest in firearms and gun violence issues. (ABC News).

Suit Challenges New Hampshire Education Tax Credits

The ACLU announced yesterday the filing of a lawsuit in New Hampshire state court challenging New Hampshire's newly enacted Education Tax Credit program. Under the program businesses will receive a tax credit equal to 85% of the amount they donate to scholarship organizations that, in turn, fund private and religious elementary and secondary school students.Two-thirds of the state's private school students attend religious schools. The complaint (full text) in Duncan v. State of New Hampshire, (NH Super. Ct., filed 1/9/2013), was filed by the ACLU and Americans United on behalf of 8 plaintiffs. It contends that the tax credit program violates New Hampshire Constitution Part I, Art. 6 (no one shall  be compelled to support religious schools, and all denominations must be treated equally) and Part II, Art. 83 (no tax funds may be used for parochial schools).

Court Denies Small Business Preliminary Injunction Against Contraceptive Coverage Mandate

In Annex Medical, Inc. v. Sebelius, (D MN, Jan. 8, 2013), a Minnesota federal district court refused to issue a preliminary injunction to prevent enforcement of the Affordable Care Act contraceptive coverage mandate against a small for-profit medical device manufacturing company and its devout Catholic CEO.  The court concluded that there was not a likelihood that plaintiffs would succeed on the merits of their Religious Freedom Restoration Act claim because "the Mandate  places  only  a  de  minimis,  not  substantial,  burden  on plaintiffs’  practice  of  religion  under  RFRA." (See prior related posting.)

Rabbinical College Can Proceed With Facial Challenge To Land Use Ordinances

In a 102-page opinion, a New York federal district court in Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, (SD NY, Jan. 4, 2013), dismissed on ripeness grounds a number of "as applied" challenges to the land use ordinances of the Village of Pomona, New York. However the court permitted plaintiffs to proceed with facial challenges to the ordinances under the 1st and 14th Amendments, RLUIPA, the Fair Housing Act and the New York constitution. Plaintiffs alleged that the village adopted the land use ordinances with the deliberate purpose of preventing it from constructing a planned rabbinical college. Plaintiffs never filed a formal application for permission to build the college.  They were merely rebuffed by the village's attorney and in an informal exchange of letters the mayor said the village would not exempt the project from the village's zoning laws.

Use of "Allah" By Non-Muslims Again Erupts As Issue In Malaysia

In Malaysia, the right of non-Muslims to use the word "allah" to refer to God in prayers and religious material has again become a subject of controversy.  In late 2009, a Malaysian court held that the Constitution protected the right of a Catholic newspaper to use the word "Allah" in its Malay-language edition.  However, its decision was stayed pending appeal. (See prior posting.) Last month in his Christmas message, the head of the opposition DAP party called for the federal government to lift its ban on the use of "Allah" in Malay language Bibles shipped to Sabah and Sarawak, where most Malaysian Christians live.  As reported by yesterday's Malaysian Insider, this has led the Sultan of Selangor to call for an emergency meeting of the Selangor Islamic Religious Council to assure enforcement of a 2010 fatwa banning non-Muslim religions from using the term. He has also ordered the Selangor Islamic Affairs Department to take action against groups that continue to question the fatwa.  Meanwhile Sikhs (Malaysian Insider) and Christians (Malaysian Insider) are both concerned about the Sultan's actions.

Christian School's Challenge To Contraceptive Coverage Mandate Dismissed On Ripeness Grounds

In Colorado Christian University v. Sebelius, (D CO, Jan. 7, 2012), a Colorado federal district court dismissed on ripeness grounds a challenge to the Affordable Care Act contraceptive coverage mandate brought by an interdenominational Christian college. Following most other courts that have ruled in similar cases, the court concluded that the case is not ripe for review because the government has begun the process of amending the mandate as it applies to religious non-profits such as Colorado Christian University, and has in the meantime created a temporary safe harbor to protect religious non-profits with conscience concerns from having the coverage requirement enforced against them. (See prior related posting.)  AP reports on the decision.

Persons Who Will Deliver Invocation and Benediction At Obama Inaugural Are Named

The Washington Post reported yesterday that President Obama has selected the individuals who will deliver the opening and closing prayers at his inauguration ceremony on January 21. The invocation will be delivered by Myrlie Evers-Williams, widow of slain civil rights leader Medgar Evers. She will be the first woman and first person who is not a member of the clergy to deliver an Inaugural invocation. The closing benediction will be delivered by conservative Atlanta evangelical pastor Louie Giglio, who draws thousands of college students to his Passion Conferences. One reason for the choice of Giglio is his work in raising awareness of modern-day slavery and human trafficking.  The Constitution's 20th Amendment provides that a President's term starts at noon on Jan. 20th.  Obama will take the oath of office privately on Sunday the 20th, and will then have his formal Inauguration on January 21st that coincides with Martin Luther King Day. The inaugural committee has not yet released details of the Bible that Obama will use for the swearing-in.  The website of the Joint Congressional Committee on Inaugural Ceremonies has a list of the Bibles used in past Presidential inaugurations, and the passage to which it was opened during the swearing-in.

USCIRF Report Criticizes Religious Freedom Conditions In Russia

The U.S. Commission on International Religious Freedom yesterday released the findings stemming from its visit last year to Russia. In an 8- page Policy Brief titled Russia: Unruly State of Law, USCIRF says:

Overall, religious freedom conditions in Russia continue to deteriorate. Chronic serious problems highlighted in previous USCIRF reports remain, including the application of the religion law and the use of the anti-extremism law against peaceful religious groups and individuals. USCIRF is concerned by the arsenal of new laws against civil society passed by the Putin administration in 2012.  Moreover, there are increasing signs of an official policy of “selective secularism” that favors the Moscow Patriarchate of the Russian Orthodox Church (MPROC) over other religious communities. The draft blasphemy bill before the Duma, if passed in the spring of 2013, would further curtail the freedoms of religion, belief and expression.

Student Loses Religious Challenge To RFID Badges After School's Accommodation Offers

In A.H. v. Northside Independent School District, (WD TX, Jan, 8, 2013), a Texas federal district court refused to grant a preliminary injunction to a high school student who objected on religious grounds to wearing a Smart ID badge containing an RFID chip. The student's father claimed that wearing the badge would be the mark of the beast, and he had religious objections to the school tracking his daughter. The school superintendent offered to accommodate the student's religious beliefs by allowing her to wear the badge with the RFID chip and its electronic components removed.  The student and her family still refused, saying that wearing the badge would give the appearance that they supported the program.  The school said that the student's other alternative was to withdraw from the science and engineering magnet school she was attending and return to her regular high school where none of the identification badges contain RFID chips.

In an extensive opinion, the court rejected plaintiff's free exercise, free expression, due process and equal protection claims.  The court said that even if strict scrutiny applies under the 1st Amendment, as it does under the Texas Religious Freedom Restoration Act, that standard has been met. Plaintiff has not shown that the badge imposes a substantial burden on her ability to exercise her religion; the government has shown a compelling interest in requiring the badges; and the school has offered plaintiff an accommodation that should remove any objections. It also concluded that wearing the badge is not expressive conduct, and even if it is it passes constitutional muster.  Wired reports on the decision, as does the Rutherford Institute  (See prior related posting.)

UPDATE: The Jan. 10 San Antonio Express-News reports that an appeal to the 5th Circuit has been filed in the case.

Supreme Court Denies Cert. In Challenge To Restrictions On Guns In Churches

The U.S. Supreme Court yesterday denied certiorari in Georgiacarry.org, Inc. v. Georgia, (Docket No. 12-486, cert. denied 1/7/2013) (Order List).  In the case, the U.S. 11th Circuit Court of Appeals rejected constitutional challenges to a Georgia law restricting the the right to freely carry handguns, knives or long guns in 8 specific locations, including any place of worship. (See prior posting.) The Atlanta Journal Constitution reports on the Supreme Court's refusal to review the decision.

Los Angeles Court Will Not Allow Names of Archdiocese Officials To Be Redacted In Released Abuse Files

In 2007, the Catholic Archdiocese of Los Angeles reached a $660 million settlement with victims of clergy sexual abuse. The settlement also called for a release of confidential priest personnel files. (See prior posting.) Retired federal judge Dickran Tevrizian had been appointed to oversee the file release process, and he ruled that the names of all church employees, including top archdiocese officials, could be redacted to prevent the documents from being used to harass or embarrass the Church. Media organizations, however appealed that ruling to Los Angeles Superior Court Judge Emilie Elias. (LA Times 12/27/2012). Yesterday, according to the Los Angeles Times, Judge Elias agreed with the media and ruled that the names of high-ranking church officials may not be redacted from the documents. She also reversed Judge Tevrizian’s ruling that allowed redaction of the names of priests who had faced only one allegation of abuse.