9th Circuit In 2-1 Decision Rejects Church's Challenge To Town's Sign Restrictions

In Reed v. Town of Gilbert, (9th Cir., Feb. 8, 2013), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, upheld an Arizona town's sign ordinance that limits the size, number and time frame in which temporary directional signs can be displayed.  The ordinance was challenged by a church that placed 17 signs in the area around its place of worship announcing the time and location of its services. The majority concluded that the ordinance does not violate free expression guarantees since it is not a content-based regulation, and the restrictions are tailored to serve a significant governmental interest.  The majority also rejected free exercise, equal protection and overbreadth-vagueness challenges.

Judge Watford dissenting argued that the ordinance is content-based because it favors political and ideological signs over signs promoting events sponsored by non-profit organizations. (See prior related posting.)

Egyptian Court Orders 30-Day Ban On YouTube Over Anti-Muslim Video

According to AhramOnline, Egypt's administrative court today ordered the government to block access to the website YouTube for 30 days because YouTube carried the video trailer for the controversial move "Innocence of Muslims." (See prior related posting.) The order also applies to other websites that aided in sharing the video. AP reports that Judge Hassouna Tawfiq labeled the video “offensive to Islam” and to the Prophet Muhammad. The lawsuit was filed in September by Hamed Salem, an attorney who has filed a number of controversial lawsuits.

3rd Circuit Denies Stay Pending Appeal In Small Business Challenge to Contraceptive Coverage Mandate (Corrected)

In a 2-1 decision, the U.S. 3rd Circuit Court of Appeals refused to grant a stay pending appeal in a small business' challenge to the Affordable Care Act contraceptive coverage mandate. In Conestoga Wood Specialties Corp. v. Secretary of U.S. Dept. of Health and Human Services, (3rd Cir., Feb. 7, 2013), Judge Rendell in her majority opinion concluded that the Mennonite owners of a wood specialties manufacturing company had failed to show a reasonable likelihood of success on the merits of their free exercise, RFRA or Establishment Clause claims. (See prior related posting.)

Judge Garth, concurring, emphasized that:

for-profit corporate entities, unlike religious non-profit organizations, do not — and cannot — legally claim a right to exercise or establish a "corporate" religion under the First Amendment or the RFRA.

He also agreed with the district court that:

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.

Judge Jordan dissented, arguing first that injunctive relief should be available "if the threatened harm is particularly great, despite a showing on 'likelihood of success' that is less than would usually be required." He added:

The government is at pains to point out ... that the “preventive health services provisions [of the ACA] require coverage of an array of recommended services...."  [However] "There’s just one fatal dish," is non-responsive to [plaintiffs'] point, which is that their religious liberty is directly threatened by the government’s edict....

An entity’s incorporated status does not ... alter the underlying reality that corporations can and often do reflect the particular viewpoints held by their flesh and blood owners....

Policymic reports on the decision. [Thanks to Jeff Pasek for the lead.] 

[Note: An earlier version of this posting contained 2 errors.  It referred in the body of the post to the incorrect circuit.  It also had an incorrect date for the decision. That incorrect earlier date stemmed from the fact that 3rd Circuit opinions contain, without explanation, the date on which the clerk's office forwards the motion to the 3-judge panel. I incorrectly used that  date. Thanks to Howard Bashman for the corrections.]

Catholic Bishops Say New HHS Contraceptive Mandate Proposal "Falls Short"

In a Statement (full text) issued yesterday, the U.S. Conference of Catholic Bishops said that the Department of Health and Human Services' Feb. 1 Notice of Proposed Rulemaking attempting to accommodate non-profit religious organizations' objections to the contraceptive coverage mandate "shows some movement by the Administration but falls short of addressing U.S. bishops' concerns." In the statement, Cardinal Timothy Dolan argued that Catholic health care, education and charities should have the same total exemption as churches. He indicated that it is unclear how much involvement religious organizations will be required to have in arranging for required separate policies. Finally he objected to the lack of any conscience protection to private for-profit employers and insurers.

Christian Churches Call For Comprehensive Immigration Reform

Christian Churches Together, an organization of over 40 Christian church groups (Catholic, Orthodox, evangelical and main-line Protestant) last week issued a press release and Statement (full text) calling for comprehensive immigration law reform. The diverse group of Christian religious leaders agreed on the following principles:

• An earned path to citizenship for the 11 million people in the United States without authorization.
• The priority of family reunification in any immigration reform.
• Protecting the integrity of our borders and protecting due process for immigrants and their families.
• Improving refugee protection laws and asylum laws.
• Reviewing international economic policies to address the root causes of unauthorized immigration.

California Appeals Court Refuses To Enforce $18 M Oral Pledge To Chabad

In Chabad of California, Inc. v. Arnall, (CA App., Jan. 25, 2013), a California state appellate court, affirming a trial court decision, refused to enforce a purported oral pledge of $18 million to Chabad of California by a now-deceased donor. The court said in part:

After finding that nearly every witness in this case was lacking in credibility to one degree or another, the trial court found that Chabad had failed to prove an essential element of its case, namely, the existence of a promise to donate $18 million for the new facility.  In making this finding, the trial court necessarily found that Rabbi Cunin's testimony was not credible on the fundamental question regarding the existence of an oral pledge.  Because the adverse credibility determination was based on substantial evidence that Chabad does not dispute on appeal, there are no valid grounds to overturn the trial court‟s findings.

Los Angeles Jewish Journal reports on the decision. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Mass. Governor's Income Tax Proposal Would End Parsonage Exemption; Continue No Charitable Deduction

Last week the Massachusetts Taxpayers Foundation published an analysis of Gov. Deval Patrick's FY 2014 tax proposal. Among the 44 personal exemptions and deductions the Governor proposes eliminating from the state income tax is the exemption for the rental value of parsonages provided to members of the clergy. It is estimated that the elimination of the parsonage allowance will increase state revenues by $2 million to $2.5 million. Also the Governor proposes eliminating the provision that would restore the personal charitable deduction if personal income tax rates reach 5%. [Thanks to Don Clark for the lead.]

Granddaughters of Founder Leave Westboro Baptist Church

Megan Phelps-Roper and her sister Grace-- daughters of Westboro Baptist Church leader Shirley Phelps-Roper, and granddaughters of Westboro's founder Fred Phelps-- have left the church, according to a report yesterday by Jeff Chu at Medium. Westboro's followers have become known for the virulent anti-gay signs they carry in picketing funerals of veterans and other venues. Megan says her doubts about church doctrine began with a conversation with Israeli web designer David Abitbol about one of the church's picket signs reading "Death Penalty for Fags."

Court Upholds Town's Zoning Denial For Bible Camp

In Eagle Cove Camp & Conference Center, Inc. v. Town of Woodboro, (WD WI, Feb. 1, 2013), a Wisconsin federal district court upheld a town's denial of a rezoning request and an application for a conditional use permit to construct a year-round Bible camp facility which, among other things, would minister to children with serious disabling medical conditions. Summarizing its holding, the court said:

The court has no reason to doubt plaintiffs, and particularly the Jaros brothers', sincere belief that they have been called to build a Bible camp on the land in issue -- and is aware of the years, talents and money spent, as well as dedication shown, in pursuit of that belief. Patently obvious is this court‟s inability to discern whether plaintiffs‟ utter lack of success to date is God's way of telling them -- through admittedly-imperfect, secular institutions -- to look elsewhere for a more acceptable location. Ultimately, only God knows if they should continue to knock at this particular door or look for an open window somewhere else. What appears substantially more certain, at least to this court, is that plaintiffs have no right to relief under RLUIPA, the United States Constitution or the Wisconsin Constitution. Indeed ... the undisputed facts demonstrate that plaintiffs do not meet their burden of establishing all the elements of proof under any of their claims.

Plaintiffs have filed a Notice of Appeal to the 7th Circuit. (See prior related posting.) [Thanks to Arthur G. Jaros for the lead]

President Speaks At National Prayer Breakfast; Says Dubois Leaving As Faith-Based Office Head

As reported by the Huffington Post, yesterday President Obama spoke at the National Prayer Breakfast organized by the Fellowship Foundation and held at the Washington Hilton Hotel. In his remarks (full text), the President announced that Joshua Dubois this week is leaving his position as head of the White House Office of Faith-Based and Neighborhood Partnerships. Huffington Post reports that DuBois will be teaching at New York University will start a new organization  to facilitate partnerships with faith based organizations. In his Prayer Breakfast remarks, the President also said:

As Christians, we place our faith in the nail-scarred hands of Jesus Christ.  But so many other Americans also know the close embrace of faith -- Muslims and Jews, Hindus and Sikhs.  And all Americans -- whether religious or secular -- have a deep and abiding faith in this nation.  

Suit Challenges Jesus Portrait In Public Middle School

The Freedom From Religion Foundation announced that it, along with the ACLU of Ohio, filed suit yesterday on behalf of parents and a student who attends Jackson, Ohio Middle School. The federal court lawsuit seeks removal of a portrait of Jesus displayed on an entrance wall in the school. The complaint (full text) in Doe v. Jackson City School District, (SD OH, filed 2/7/2013), alleges that the display violates the federal Constitution's Establishment Clause, as well as  Art. I, Sec. 7 of the Ohio Constitution. Plaintiffs sought court permission to file the lawsuit using pseudonyms (memo in Support of Motion). In response to the lawsuit, Liberty Institute (which had been engaged by the school board to make a recommendation on the matter) said that plaintiffs should have waited for its report to be completed.

Ground Zero Mosque Leader Sued For Diverting Funds

In 2010, New York City's Iman Feisal Abdul Rauf became well known-- until he was ousted in January 2011-- as the leader of a group that planned to build a mosque and Islamic center near "Ground Zero". (See prior posting.) Now, according to reports by the New York Daily News and Reuters yesterday, Rauf is being sued by a Westchester County couple who donated $167,000 to his Cordoba Initiative and the American Society for Muslim Advancement. The suit, filed in state court in New York, claims that Rauf used these funds, as well as $3 million from the Malaysian government for vacations and gifts for a woman with whom he shared a personal relationship, as well as for real estate, entertainment, and luxury sports car for himself and his wife. The suit also claims Rauf concealed his scheme by falsifying the charitable organizations' tax returns.

Teacher's Pregnancy Discrimination Claim Against Catholic School Must Go To Jury

In Dias v. Archdiocese of Cincinnati, (SD OH, Jan.30, 2013), a former technology coordinator at two Catholic Archdiocese schools sued under Title VII claiming pregnancy discrimination after she was fired for being pregnant and unmarried, and for becoming pregnant through artificial insemination. The court held that the suit was not barred by the ministerial exception doctrine since, as a non-Catholic who was not permitted to teach Catholic doctrine, plaintiff could not be considered a minister of the Catholic faith. The Archdiocese claimed it relied on the morals clause in the teacher's contract in dismissing her. The court concluded that it is up to a jury to determine the real reason for plaintiff's dismissal.  If it was a ban against premarital sex-- as opposed to a dismissal for being pregnant-- that would be permissible under Title VII, but only if the policy is enforced against men equally with women. The court, however, held that plaintiff could not sue for breach of contract because she knew she was in violations of its morals clause by hiding a long-term homosexual relationship from her employer. Courthouse News Service reports on the decision.

In China, Christian Activist Sues Local Police After Detention For Preaching In Park

According to yesterday's London Daily Telegraph, in China, Christian "house church" activist Cao Nan has filed a lawsuit against the police in the city of Shenzhen to challenge the police decision to detain him for 12 days for meeting with other Christians to preach and sing hymns in Shenzhen's Lizhi Park.  Police charged Cao with "falsely using the name of Christianity to harm social order." Cao hopes to encourage others to speak out against legal persecution and to vindicate his actions through legal means.

Feds Ease Rules On Taking Religious Items Through Federal Building Security

According to a news release this week from the Becket Fund, the Department of Homeland Security last December issued Federal Protective Service Directive Number: 15.9.3.1 creating a procedure to allow religious items through screening at federal buildings, even though they would otherwise be banned.  This has particularly become an issue with Sikh kirpans. The new policy was apparently not made public by the government until a few days ago. It provides in part:

Some items that are otherwise prohibited from a particular Federal facility may have some other legitimate and lawful purpose or use in a Federal facility, including as accommodations for civil rights and civil liberties under Federal laws such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act, and the Religious Freedom Restoration Act. 

One of the attachments to the FPS Directive is a Training Document titled Accommodating Sikh Articles of Faith.

All of this occurred as yesterday the 5th Circuit heard oral arguments (recording of full arguments) in Tagore v. United States, a federal lawsuit by a former Internal Revenue Service employee who was fired after she insisted on wearing her kirpan in a Houston federal office building. (See prior posting.) [Thanks to Eric Rassbach for the lead.]

Court Dismisses 1 of 3 Suits Challenging Eruv In Long Island Village

The New York Times reports that a New York federal district court on Monday dismissed one of three lawsuits challenging a proposed eruv that Orthodox Jews in Westhampton Beach plan to put up. The dismissed lawsuit was brought by a group calling itself Jewish People for the Betterment of Westhampton Beach which claimed that permitting the eruv would violate the Establishment Clause. (See prior posting.) Proponents of the eruv, who see opposition as an attempt to keep Orthodox Jews out of the community, have bypassed a formal vote by the Village. Instead the East End Eruv Association entered a direct agreement with Verizon and Long Island Lighting to use their utility poles for the eruv-- a symbolic boundary that allows observant Jews to carry things outside their homes on the Sabbath.

Catholic Hospital Says Its "Fetus Is Not A Person" Defense Was Morally Wrong

As reported by the Denver Post, Colorado-based Catholic Health Initiatives (CHI) released a statement (full text) Monday acknowledging that it was "morally wrong" for lawyers representing St. Thomas More Hospital in Canon City, Colorado to raise in a malpractice suit the defense that Colorado's Wrongful Death Act that does not consider a fetus to be a person.  As previously reported, the defense came in a lawsuit by the husband and the daughter of a woman, pregnant with twins, who died in the hospital's emergency room, and who argued that at least a cesarean section should have been performed to save the twins. CHI said that if the Colorado Supreme Court grants review in the case, it will not cite the Wrongful Death Act which does not permit fetuses to sue.

Meanwhile, the losing plaintiff in the lawsuit, Jeremy Stodghill, has filed for bankruptcy because of the $47,000 in legal fees for the defendants awarded against him. CHI did not file a lien or pursue a claim in bankruptcy court against Stodghill, but a physician who was a co-defendant did file lien which led to the bankruptcy filing. Stodghill's attorney says, however, that CHI used the legal fee award as a negotiating tool to try to persuade Stodghill not to appeal.

Another Small Business Challenges Contraceptive Coverage Mandate

On Monday, another Christian-owned for-profit small business filed a challenge to the Affordable Care Act contraceptive coverage mandate. The complaint (full text) in Briscoe v. Sebelius, (D CO, filed 2/4/2013), alleges that plaintiff Stephen Briscoe, owner of affiliated corporations and LLCs that operate senior independent living, assisted living and skilled nursing facilities, believes that furnishing coverage for contraceptives that may prevent implantation of an already fertilized egg is a sin for which he will be held accountable.  Briscoe discovered that his companies' self-insured plan covers these types of contraceptives as controversy over the HHS Mandate arose.   The company that provides his businesses with insurance told him that without a judicial order, it cannot exclude such coverage. The suit claims that the mandate violates plaintiffs' rights under RFRA, the 1st and 5th Amendments and the Administrative Procedure Act. Alliance Defending Freedom announced the filing of the lawsuit.

Churches Split On Boy Scout Proposal To End Ban On Gay Scouts and Leaders

According to yesterday's New York Times, the Boy Scouts at their national board meeting in Texas this week may vote to drop its ban on gay scouts and gay scout leaders. According to today's Atlanta Journal Constitution, the Scouts' decision implicates many churches.  70% of scout troops are sponsored by churches. The three largest religious sponsors are Church of Jesus Christ of Latter-day Saints (37,000 units), the Methodist Church (11,000 units) and the Roman Catholic Church (8,000 units). Within church bodies, there are strong feelings on both sides of the issue. The most outspoken criticism of the proposed change has come from Southern Baptist churches.

UPDATE: On Feb. 6, the Boy Scouts announced that it is postponing until May a decision on whether to lift a ban on gay scouts and scout leaders. (AP).

Victims Argue That LA Archdiocese Document Release Is Incomplete

In accordance with a settlement in a lawsuit by clergy abuse victims, last week, the Catholic Archdiocese of Los Angeles released 12,000 pages of internal files on accused priests. (See prior related posting.) Now, according to yesterday's New York Times, victim advocates charge that the files released are incomplete and many documents are unaccounted for.  On many pages of documents, the names of supervisors of offending priests have been redacted. Lawyers for victims also argue that there should be many more documents. In litigation in which the Archdiocese opposed going through the documents to remove prior redactions, it argued that there were 30,000 pages, not the mere 12,000 produced.  The lawyer for the Archdiocese said the 30,000 number was a "wild guess."