Cert. Petition Filed In Hutterite Challenge To Workers Comp Coverage

A petition for certiorari (full text) was filed Monday with the U.S. Supreme Court in Big Sky Colony, Inc. v. Montana Department of Labor and Industry. In the case, the Montana Supreme Court in a 4-3 decision upheld against constitutional attack amendments to the state's workers compensation law that bring Hutterite Colonies within the definition of those covered when their members perform agricultural, manufacturing or construction services for in-kind services rather than wages. Becket Fund's website furnishes more information on the case.

Court Says Catholic University's Challenge To Contraceptive Coverage Mandate Is Not Ripe For Decisiion

In Ave Maria University v. Sebelius, (MD FL, March 29, 2013), a Florida federal district court dismissed on ripeness grounds a challenge by a Catholic university to the Affordable Care Act contraceptive coverage mandate. The court said in part:

The crux of Defendants’ ripeness argument is that they are in the process of amending the challenged regulations to accommodate religious concerns and that they have represented that they will never enforce the regulations in their current form against Ave Maria or any similarly situated entity. Ave Maria concedes that it is eligible for a temporary enforcement safe harbor.... This Court therefore joins the overwhelming majority of courts to have addressed similar challenges by similarly situated plaintiffs in concluding that Ave Maria’s claims are not ripe for adjudication.

Ave Herald reports on the decision.

Virginia Law On Marriage Officiants Discriminates Against Sikhs

In In re Dhanoa, (VA Cir. Ct., March 29, 2013), a Virginia trial court held that while Sikh temples do not have clergy, and thus members cannot rely on Va. Code Sec. 20-23 to perform marriage ceremonies, Sikhs do qualify under Va. Code Sec. 20-26 as members of a religious society that does not have ordained ministers.  The court went on to hold that two of the conditions imposed by Sec. 20-26 are unconstitutional-- the requirement that only one person per "religious society" may be authorized to certify marriages and the requirement that the person chosen by the religious society post a $500 bond.  The court held that the these requirements discriminate against Sikhs on the basis of religion. The ACLU issued a press release reporting on the decision.

Canadian Court Says Police Religious Ruse Did Not Violate Murder Defendants' Religious Freedom

In Regina v. Welsh, (ON Ct. App., April 2, 2013) the Court of Appeal of the Canadian province of Ontario upheld that an elaborate ruse in which an undercover policeman posed as a practitioner of the Jamaican Obeah spiritual-mystical system to obtain incriminating statements from two of three co-defendants in a first-degree murder case. The court rejected arguments that the undercover operation violated defendants' religious freedom protected by Sec. 2 of the Canadian Charter of Rights and Freedoms. In a 91-page opinion, the court also rejected a number of other challenges to the undercover operation and the admission into evidence of the incriminating statements. The Toronto Star reports on the decision.

Ohio School Will Remove Jesus Portrait After Insurer Balks

As previously reported, earlier this year a suit was filed in an Ohio federal district court seeking to have the Jackson (OH) school district remove a portrait of Jesus that has hung in a school for 65 years and was recently moved to another school. The school justified the portrait saying it is the property of the student Hi-Y Club. According to ABC6 News, in a hearing yesterday on a temporary restraining order the school agreed to take down the portrait-- because the school board's insurance company says it will not cover the costs of the lawsuit. The school board now expects a lawsuit from the Hi-Y group that it has ordered to take down the portrait.

Woman Sues After Being Thrown Off Metrorail For Singing Spirituals

CBS4 Miami reports on a lawsuit filed in Miami, Florida on Monday against the security company that furnishes guards for Miami's Metrorail and a guard who forced an 82-year old woman from a train for singing spiritual hymns.  Miami-Dade Transit says its rules prohibit anyone from singing, dancing or playing a musical instrument on the train without a permit. The lawsuit says that Emma Anderson was on the train to get some fresh air and find comfort in her faith following the recent death of her brother. She was bruised attempting to reclaim her small rolling suitcase from the guard who grabbed it when he told her to get off the train. The suit alleges assault, battery and negligence. Anderson's attorney says she was targeted because of her race and religion.

Requiring Religious Non-Profit To Pay Rent For Parking Lot Does Not Violate RLUIPA

In Parish of Jefferson v. Daughters of St. Paul Inc., 2013 La. App. LEXIS 599 (LA App., March 27, 2013), a Louisiana appeals court rejected a RLUIPA land use claim brought by Pauline Books & Media, a non-profit corporation of religious women who share their beliefs through media. A Jefferson Parish ordinance requires the corporation to pay rent to the Parish government for use of Parish property located in front of Pauline Books for parking by Pauline Books' customers.The court held that the required lease payments do not impose a substantial burden on Pauline Books religious exercise.

Palestinian President Recognizes Jordanian King's Role As Protector Of Jerusalem Muslim Holy Sites

According to the Times of Israel, last Sunday Jordan's King Abdullah II and Palestinian President Mahmoud Abbas signed an agreement (full text) reaffirming the role of the Jordanian king as Custodian of the Muslim Holy Sites in Jerusalem, including Al-Aqsa Mosque and the Dome of the Rock. The agreement provides that the Jordanian king has the right "to represent the interests of the Holy Sites in relevant international forums and competent international organizations."

Recent Artcles of Interest

From SSRN:

• SpearIt, Religion as Rehabilitation? Reflections on Islamin the Correctional Setting, (Whittier Law Review, Vol. 34, 2012, Forthcoming).
• Kristen Kyle-Castelli, Standing and the EstablishmentClause in the Wake of Arizona Christian School Tuition Organization v. Winn:Who is the Proper Plaintiff to Take a Stand in Tax Credit School Cases? , (82 Miss. L.J. Supra 239 (2013)).
• Davina Cooper and Didi Herman, Up Against the PropertyLogic of Equality Law: Conservative Christian Accommodation Claims and GayRights, (Feminist Legal Studies, Vol. 21, No. 1, 2013).
• Paola Bernardini, Religious Liberty: A Common Challenge forCatholic-Muslim Dialogue, (Ave Maria Law Review, Vol. 11, No. 1, p. 31, 2012).
• Stephen L. Mikochik, Teaching About Religion in the PublicSchools, Ave Maria Law Review, Vol. 11, No. 1, p. 149, Fall 2012.
• Damian P, Fedoryka, The Foundation of Rights in Popes JohnPaul II and Benedict XVI from the Perspective of the Gift , Ave Maria Law Review, Vol. 11, No. 1, p. 65, 2012).
• Russell Powell, Shari'a Politics: Islamic Law and Societyin the Modern World (Book Review), (28 Journal of Law and Religion 287 (2012)).
• T. Ward Frampton, 'Some Savage Tribe': Race, LegalViolence, and the Mormon War of 1838, (Journal of Mormon History, Forthcoming).
• Frederick Mark Gedicks, Dignity, History, and Religious-Group Rights, (San Diego Law Review, Vol. 50, 2013).
• Frederick Mark Gedicks, True Lies: Canossa as Myth, (San Diego Law Review, Forthcoming).
• Holly Fernandez Lynch, Religious Liberty, Conscience, andthe Affordable Care Act, (ETHICAL PERSPECTIVES, Vol. 20, No. (1) pp. 118-131 (2013)).

From SmartCILP:

• Fracois Dessemontet, The Application of Soft Law, Halakha and Sharia by International Arbitral Tribunals, [Abstract],23 American Review of International Arbitration 545-565 (2012).
• Kristin A. Olbertson, Religion and Rights in Nineteenth-Century American Law: Reflections on the Work of Elizabeth B. Clark, 53 American Journal of Legal History 121-130 (2013).
• Sands, Kathleen. Territory, wilderness, property, and reservation: land and religion in Native American Supreme Court cases. 36 Am. Indian L. Rev. 253-320 (2011-2012).
• Journal of Law and Religion, Vol. 28, No. 1 (2012- 2013) has recently been published.

Muslim Group Prevails On Free Exercise and RLUIPA Substantial Burden Challenges To Zoning Denial

In a detailed 70-page opinion in Irshad Learning Center v. County of DuPage, (ND IL, March 29, 2013), an Illinois federal district court held that DuPage County Illinois violated the substantial burden provisions of RLUIPA and the Illinois Religious Freedom Act Restoration Act, as well as the free exercise provisions of the U.S. and Illinois constitutions in denying a Muslim religious and educational group a conditional use permit to use certain property for religious and educational purposes. However the court rejected plaintiff's RLUIPA equal terms and non-discrimination claims, as well as its constitutional equal protection claim. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Bolds v. Cavazos, 2013 U.S. Dist. LEXIS 40393 (ED CA, March 20, 2013), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that the confiscation of his television set infringed his free exercise rights by preventing him from receiving religious programming.

In McClendon v. Caruso, 2013 U.S. Dist. LEXIS 40884 (WD MI, March 25, 2013), a Michigan federal district court dismissed an inmate's complaint that his free exercise rights were infringed when authorities treated his religious fast as if it was a hunger strike and required him to undergo to a check of his vital signs.

In Washington v. Caldwell, 2013 U.S. Dist. LEXIS 40764 (ED MI, March 22, 2013), a Michigan federal district court, adopting a magistrate's recommendation (2013 U.S. Dist. LEXIS 43707, Jan. 31, 2013), dismissed a complaint by a Protestant inmate that the prison chaplain refused to put him on the list for the Muslim fast of Ramadan.

In McKissick v. Owens, 2013 U.S. Dist. LEXIS 41703 (SD GA, March 25, 2013), a Georgia federal district court agreed with a magistrate's recommendations and dismissed an inmate's complaint that his free exercise rights were violated when non-vegan trays were used to serve vegan meals. UPDATE: The magistrate's decision is at 2013 U.S. Dist. LEXIS 46165, Feb. 21, 2013.

In Handy v. Cummings, 2013 U.S. Dist. LEXIS 41282 (D CO, March 25, 2013), a Colorado federal district court, rejecting parts of a magistrate's recommendations (2012 U.S. Dist. LEXIS 187115, Nov. 27, 2012), held that genuine issues of fact remain in connection with a Muslim inmate's complaint that his Islamic prayer book and prayer schedule were confiscated and then lost.

In Bloom v. Jennings, 2013 U.S. Dist. LEXIS 41970 (WD VA, March 25, 2013), a Virginia federal district court dismissed an inmate's complaint that he was prohibited from possessing his rosary because it violated restrictions on altered property and from possessing his cross necklace because it violates restrictions on the size of medallions.

In Miller v. Bouchard, 2013 U.S. Dist. LEXIS 41849 (ND NY, March 26, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 41853, March 4, 2013) and dismissed a Muslim inmate's complaint that he was prohibited from praying or wearing his Kufi while outside of his cell.

In Todd v. California Department of Corrections and Rehabilitation, 2013 U.S. Dist. LEXIS 43008 (ED CA, March 26, 2013), California magistrate judge recommended dismissing an inmate's complaint regarding his religious diet and confiscation of Creativity material. The court concluded that Creativity is not a religion, but merely a secular belief system based on an isolated teaching: the promotion of the White Race.

In Mootry v. Flores, 2013 U.S. Dist. LEXIS 42942 (ED CA, March 25, 2013), a California federal magistrate judge permitted a Muslim inmate to move ahead with his complaint that he was not allowed to attend Jumu'ah services in the absence of a Muslim chaplain or a volunteer to supervise inmate ministers, and prison authorities failed to obtain such a person to supervise services.

In Holman v. Hogue, 2013 U.S. Dist. LEXIS 32849 (WD PA, March 8, 2013), a Pennsylvania federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 42770, Feb. 15, 2013) and dismissed a Muslim inmate's complaint that the county jail in which he was incarcerated does not provide an Imam for religious services.

In Griffin v. Superintendent, 2013 U.S. Dist. LEXIS 37069 (ND NY, March 18, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 42064, Jan. 31, 2013) and dismissed a habeas corpus petition brought by an inmate who was denied parole after refusing to take the  Sex Offender Counseling and Treatment Program because assuming responsibility for the offense in the program would require him to lie in violation of his Jehovah's Witness religious beliefs.

In Mobley v. Coleman, 2013 Pa. Commw. LEXIS 78 (PA Commwlth. Ct., March 27, 2013), the Pennsylvania Commonwealth Court ruled that a Nation of Islam inmate can move ahead with his claims that the lack of separate Nation of Islam services violates his federal and state free exercise rights. But it rejected his claims that his rights under RLUIPA and the Pennsylvania Religious Freedom Protection Act were also violated.

White House Easter Weekend Statements and Releases

President Obama yesterday used his weekly address (full text) to extend Easter and Passover greetings. He said in part:

As Christians, my family and I remember the incredible sacrifice Jesus made for each and every one of us – how He took on the sins of the world and extended the gift of salvation. And we recommit ourselves to following His example here on Earth. To loving our Lord and Savior. To loving our neighbors. And to seeing in everyone, especially “the least of these,” as a child of God. 

Of course, those values are at the heart not just of the Christian faith; but of all faiths. From Judaism to Islam; Hinduism to Sikhism; there echoes a powerful call to serve our brothers and sisters. To keep in our hearts a deep and abiding compassion for all. And to treat others as we wish to be treated ourselves.

The previous day-- Good Friday-- the White House also issued a Statement by the President on Easter Weekend, as well as the Complete 2013 Easter Egg Roll Program and Talent Line-up.

Court Rejects Challenge To World Trade Center Cross In 9-11 Museum

In American Atheists, Inc. v. Port Authority of NY and NJ, (SD NY, March 28, 2013), a New York federal district court rejected constitutional challenges to the inclusion of the World Trade Center Cross—two beams that survived the collapse of the World Trade Center—as part of the  National September 11 Museum in lower Manhattan.  While finding that the decision by the World Trade Center Foundation to include the 17-foot tall cross as part of the displays amounted to state action, the court nevertheless held that the decision does not violate the federal Establishment Clause or Equal Protection Clause, nor does it violate parallel provisions of the New York or New Jersey Constitutions or state anti-discrimination laws. In rejecting the Establishment Clause challenge, the court said in part:

Because a reasonable observer would be aware of the history and context of the cross and the Museum-- especially given that the cross will be housed in the “Finding Meaning at Ground Zero” section, accompanied by placards explaining its meaning and the reason for its inclusion, and surrounded by secular artifacts--  no reasonable observer would view the artifact as endorsing Christianity.

In a press release following the decision, American Atheists said: "We will appeal. We’re fighting it. This is not dead. This is a place where religion destroyed American lives."  CNN reports on the decision.

Appeals Court Remands Church Property Dispute for Determination of Whether Plaintiffs Were Church Members

God's Hope Builders, Inc. v. Mount Zion Baptist Church of Oxford, Georgia,(GA App., March 28, 2013), is a case involving a property dispute between two factions in a Baptist church, one of which wanted the church to retain its Southern Baptist affiliation and feared that under its new pastor it was becoming an Independent Baptist church. The church's sole deacon/director transferred the church's property and other assets to God’s Hope Builders, a non-profit corporation affiliated with the Southern Baptist Convention. The church's current pastor and 36 purported members sued to invalidate the transfer. The trial court held that plaintiffs represented a majority of the church and thus had standing to bring the suit.  It held further that the property and asset transfer was unlawful. The appeals court concluded however that the "the record was insufficient to allow the trial court to definitively determine this crucial threshold issue" of whether plaintiffs represented a majority of church membership.

The appeals court held that in deciding whether plaintiffs were church members, the trial court had misconstrued the provision in the church's bylaws providing:

Any person publicly confessing personal faith in the Lord Jesus Christ, giving evidence of a regenerate heart and adapting [sic] the views of faith and practice held by the church, after baptism shall be admitted into the membership of the church.

The trial court counted 16 people as members even though there was no evidence that they had been baptized.  The trial court also failed to indicate how it determined the total church membership. The appeals court remanded the case instructing the trial court "to definitively determine whether plaintiffs are members of the church pursuant to the church’s bylaws—to the extent that it can do so without engaging in a subjective analysis of ecclesiastical matters—and whether plaintiffs constitute a majority based on the church’s total members so as to have standing to bring suit."

Employer Must Accommodate Sincere Religious Belief Even If Not Part of Formal Religion's Doctrines

In Telfair v. Federal Express Corp., (SD FL, March 28, 2013), a Florida federal district court held that two Jehovah's Witness employees could establish a prima facie case under Title VII of the 1964 Civil Rights Act of failure to accommodate their sincerely held religious beliefs even though their beliefs were not part of formal Jehovah's Witness doctrine.  It is sufficient that plaintiffs subjectively believed that the practice of field ministry and engagement in Bible study on Saturdays was a necessary expression of their religion. However, the court granted defendant's motion for summary judgment, finding that Federal Express had offered plaintiffs reasonable accommodation of their need not to work on Saturdays.

10th Circuit Grants Hobby Lobby En Banc Initial Hearing In Contraceptive Coverage Mandate Challenge

The U.S. 10th Circuit Court of Appeals today issued an Order (full text) in Hobby Lobby Stores Inc. v. Sebelius, (10th Cir., March 29, 2013), granting an unusual initial en banc hearing, rather than an intitial hearing before a 3-judge panel, in the high-profile case. The case involves the appeal of an Oklahoma federal district court's decision upholding application of the Affordable Care Act contraceptive coverage mandate against two related small businesses and their Christian owners. (See prior posting.) The 10th Circuit aso indicated that it would expedite oral argument in the case.  The 10th Circuit previously refused to grant an injunction pending resolution of the appeal. (See prior posting.) Becket Fund issued a press release announcing the court's action.

11th Circuit Upholds City's Prayer Policy

In Atheists of Florida, Inc. v. City of Lakeland, Florida, (11th Cir., March 26, 2013), the U.S. 11th Circuit Court of Appeals upheld against an Establishment Clause challenge the invocation policy formally adopted by Lakeland, Florida City Commission's Resolution 4848 shortly after this lawsuit was filed challenging an earlier informal policy.  The formal policy calls for inviting clergy from all local congregations to volunteer to deliver an invocation prior to the formal opening of city council meetings, and choosing volunteers largely on a first-come, first-serve basis. The court said in part:

[W]e conclude that AOF has failed to demonstrate that the adoption of Resolution 4848 resulted in proselytizing or advancing the Christian religion over all others solely because the speakers who were selected included sectarian references in their prayers. We also conclude that we lack jurisdiction to decide AOF’s challenge to the Lakeland City Commission’s pre-March 2010 speaker selection practice ... because that issue is moot...

The court's conclusion is similar to that of the 9th Circuit in a case handed down the same day. (See prior posting.)

Some Protest German Ban on Good Friday Dancing

Today's Wall Street Journal reports on protests in Germany over "Tanzverbot"-- the ban in each of Germany's 16 states on organized dancing at clubs and discos on Good Friday.  Some state laws also ban dancing on several other religious days throughout the year, including Christmas Eve. In Frankfurt yesterday, some two dozen protesters rallied around the slogan: "I'll let you pray-- you let me dance." However supporters of the ban say it is a way of showing respect for Germany's Christian tradition.

Pennsylvania Bill Would Limit Pseudonyms In Church-State Cases

In Pennsylvania earlier this month, state Representative Tim Krieger, concerned about lawsuits challenging Ten Commandment displays in two Pennsylvania school districts, introduced a bill to prevent litigants from proceeding anonymously in most litigation challenging the public display of religious symbols.  His HB No. 922 provides:

Notwithstanding any other provision of law to the contrary, in a suit to suppress, remove or otherwise inhibit the display or use of religious symbols in public locations, including public schools, the court shall not permit a party to participate by pseudonym and shall not seal the records in the case absent a showing, by clear and convincing evidence, that a party would otherwise suffer serious physical harm.

Seeking co-sponsors, Krieger describes the bill as "Guaranteeing Transparency in Litigation Affecting Religious Liberties."  The Pittsburgh Tribune-Review reports on the bill's introduction.

Court Says City's Restrictions On Feeding Homeless Violate Religious Freedom

In Big Hart Ministries Assoc., Inc. v. City of Dallas, (ND TX, March 25, 2013), a Texas federal district court held that under the Texas Religious Freedom Restoration Act the criteria in Dallas' Food Establishment Ordinance that must be met by organizations feeding the homeless violate the religious exercise rights of two organizations that feed and minister to the unsheltered homeless population in Dallas. The court concluded that the city had not shown a compelling interest in restricting feeding of the homeless by religious institutions, despite the city's argument that the organizations are thwarting the city's attempt to get the homeless off the streets and into clinics or shelters. Dallas News reports on the decision.

Some of Church Officer's Liability To Synod Not Dischargeable In Bankruptcy

Southeastern Pennsylvania Synod of the Evangelical Lutheran Church in America v. Gotwald, (Bkrptcy. ED PA, March 26, 2013), is an opinion in an adversary proceeding filed by the Lutheran Synod attempting to prevent a bankruptcy court from discharging a congregational officer's asserted liability to the Synod growing out of actions surrounding the split off of a Philadelphia congregation from the Synod. After being placed in involuntary synodical administration, Philadelphia's Evangelical Lutheran Church of the Redeemer incorporated a new church entity, transferred church property to it, and then took out a $275,000 loan on the transferred property. Judith Gotwald was an officer of Redeemer and was one of two individuals who controlled the bank account in which the proceeds of the $275,000 loan were deposited.

Redeemer and the Synod both filed suit in state court in Pennsylvania. The Synod succeeded in obtaining an injunction ordering Gotwald to deliver to the Synod Trustees all keys to the Redeemer buildings, and all of Redeemer’s books, records and financial assets. Gotwald only delivered church records and did not deliver control of the bank account.

Meanwhile Gotwald filed a Chapter 13 bankruptcy petition. In this decision, the bankruptcy court concluded that any debt Gotwald may owe arising out of her participation in the mortgage loan on Redeemer property is dischargeable in bankruptcy. However, because Gotwald knowingly failed to comply with the state court injunction (and did not established a defense based on the advice of counsel), damages from her actions in concealing the bank account and dissipating the loan proceeds are not dischargeable.  Liability for those actions constitute a debt to the Synod for "willful and malicious injury" that is nondischargeable under 11 U.S.C. §523(a)(6).

Kentucky Legislature Overrides Veto of Religious Freedom Bill

The Kentucky General Assembly voted Tuesday to override Gov. Steve Beshear's veto of HB 279 (see prior posting), a religious freedom bill that many found vague in its coverage. According to the Lexington Herald-Leader, the vote to override was 79-15 in the Democratic-controlled House, and 32-6 in the Republican controlled Senate. The bill, which is more protective of religious freedom than the analogous federal Religious Freedom Restoration Act, was introduced in response to a Kentucky Supreme Court ruling last year upholding a state law requiring the Amish to display bright orange safety triangles on their buggies. (See prior posting.)  However opponents of the bill say it might allow individuals to invoke their religious beliefs to ignore local ordinances that bar discrimination on the basis of sexual orientation. [Thanks to Blog from the Capital for the lead.]

North Dakota Legislature Submits Personhood Amendment To Voters

The North Dakota Legislative Assembly gave final approval last week to a proposed "Personhood" amendment to the state constitution. Senate Concurrent Resolution 4009 provides:

The inalienable right to life of every human being at any stage of development must be recognized and protected.

State voters will be asked to vote on the amendment in the November 2014 general election. As reported by Policymic, this week Governor Jack Dalrymple also signed three other bills placing restrictions on abortions and, in the view of many, directly challenging Roe v. Wade. As described by the Fargo-Moorhead Forum, House Bill 1305 bans abortions performed solely for gender selection or genetic abnormalities; House Bill 1456 bans abortions if a fetal heartbeat is detected; and Senate Bill 2305 requires physicians who perform abortions to have admitting and staff privileges at a hospital within 30 miles of the abortion facility.

District Court Enjoins County's Opening of Meetings With Christian Prayers

In Hudson v. Pittsylvania County, Virginia, (WD VA, March 27, 2013), a Virginia federal district court issued a permanent injunction against the prayer policy of the Board of Supervisors of Pittsylvania County, Virginia.  Prior to the entry of a preliminary injunction in Feb. 2012 (see prior posting), the Board consistently opened each meeting with a prayer offered by a Board member and making specific Christian references. The court held that plaintiff, a non-Christian who attends Board meetings, has standing to sue. It concluded that the Board's sectarian prayers violate the Establishment Clause. The court's injunction prohibits the Board "from repeatedly opening its meetings with prayers associated with any one religion." An ACLU press release discusses the court's decision. [Thanks to Scott Mange for the lead.]

German Atheist Company Claims Discrimination By US Postal Service Workers

A German company, Atheist Shoes, claims that the U.S. Postal Service is delaying and losing its deliveries because of the company's beliefs. The small company, which designs and produces shoes, was created by a group of atheists. Here is a portion of the company's full account (apparently posted earlier this week) of its experiences in shipping its shoes to customers in the United States:

We have lots of customers in the USA, but sometimes the shoes we send them take longer than they should to arrive, or even go missing. and, when some of our customers asked us not to use Atheist-branded packing tape on their shipments, we started to wonder if the delays were caused by the US Postal Service taking offence at our overt godlessness.

So, we launched an experiment. We sent 178 packages to 89 people, in 49 US states. Each person was sent 2 packages; one sealed with Atheist-branded packing tape, the other with a neutral tape.

They all left Berlin on November 21st, 2012, and, in theory, the branded and unbranded packages should have traveled at exactly the same speed. Atheist-branded packages took on average 3 days longer to reach their destinations. 9 Atheist packages went missing, and just 1 non-branded....

Having run a series of control tests in Germany and Europe, which demonstrate no such bias, the problem appears to lie in the USA and is likely explained by the differential handling of packages by the employees of the US Postal Service....

We're no longer using Atheist-packing tape on our shipments to the USA and delivery times are already improving....

[Thanks to Boing Boing via Scott Mange for the lead.]

9th Circuit: City's Invocation Policy Upheld Despite Christian References In Many Prayers

In Rubin v. City of Lancaster, (9th Cir., March 26, 2013), the U.S. 9th Circuit Court of Appeals rejected an Establishment Clause challenge to the Lancaster, California city council's practice of opening its sessions with a prayer.  The city solicits volunteers from local congregations of all faiths. Plaintiffs however object that a number of invocations still invoked Jesus' name. The court held, however, that sectarian Christian references are not prohibited by the Establishment Clause, so long as the city has not taken steps to affiliate itself with Christianity. The fact that most of the invocations are offered by Christian clergy is merely a function of the city's demographics and choices religious leaders make on whether to respond to the city's invitation to offer an invocation. The court added that asking judges to decide what amounts to a sectarian reference in a prayer: "not only embroils judges in precisely those intrareligious controversies that the Constitution requires us to avoid, but also imposes on us a task that we are incompetent to perform."

State Appeals Court Upholds Taxation Of Part of Church's Family Life Center

In Christ Church Pentecostal v. Tennessee State Board of Equalization, (TN App., March 21, 2013), the Tennessee Court of Appeals upheld a determination by the State Board of Equalization that a portion of a church's multi-million dollar family life center is not exempt from property taxes. The court agreed that the physical fitness center/gymnasium is entitled to only a 50% exemption because it is open for public use on a membership fee basis in addition to its church-oriented uses. It agreed that the center's cafe/bookstore is not entitled to any exemption because it is retail in nature and not used for religious purposes. The court also rejected free exercise, Establishment Clause and equal protection challenges to the tax rulings.

Catholic TV Network's Challenge To Contraceptive Coverage Mandate Dismissed As Not Ripe

In Eternal Word Television Network v. Sebelius, (ND AL, March 25, 2013), an Alabama federal district court dismissed on ripeness grounds a challenge to the Affordable Care Act contraceptive coverage mandate brought by a non-profit Catholic television network. The court explained:

Primarily for these two reasons—namely, (1) avoiding any interference with the ongoing rulemaking process before defendants have finalized their policies, and (2) the temporary nature of the current rules—the court finds that EWTN’s claims are not ripe for review.

The result is consistent with that in 16 out of 18 other similar challenges. Becket Fund has links to all the court filings and news coverage of the case.

Indiana High Court Upholds School Voucher Program

In Meredith v. Pence, (IN Sup. Ct., March 26, 2013), the Indiana Supreme Court unanimously rejected a state constitutional challenge to Indiana's Choice Scholarship Program which makes school vouchers for use at private schools, including religious schools, available to eligible parents. The court rejected challengers' claims that the program violates Art. 8, Sec. 1 of the Constitution that calls for a system of uniform common schools, Art. 1, Sec. 4 that bars compelling anyone from supporting any place of worship,and Art.1, Sec. 6 that prohibits use of state funds to benefit any religious institution. Rejecting the Art. 1, Sec. 6 challenge, the court wrote in part:

In light of the prevailing social, cultural, and legal circumstances when Indiana's Constitution was enacted, we understand Section 6 as not intended to prohibit government support of primary and secondary education which at the time included a substantial religious component.

USA Today reports on the decision. [Thanks to Blog from the Capital for the lead.]

Transcripts and Recordings of SCOTUS Arguments In Same-Sex Marriage Cases Are Available

This week the U.S. Supreme Court heard oral arguments in two cases involving same-sex marriage.  The written transcript and audio recording of Tuesday's arguments in Hollingsworth v. Perry, the challenge to California's Proposition 8 are available on the Supreme Court's website. The written transcript and audio recording of Wednesday's arguments in United States v. Windsor, the challenge to the federal Defense of Marriage Act are similarly available. Before arguments began on Tuesday, thousands of demonstrators on both sides of the issues marched and picketed near the Supreme Court. Yahoo! News reports that the National Organization for Marriage, a coalition of ethnically diverse churches from at least 15 states, were among the marchers opposing same-sex marriage.  But those invoking religion demonstrated in favor of marriage equality as well. One carried a sign reading: "Jesus had two dads and he turned out fine."

UPDATE: Oyez and ISCOTUS have created a website with extensive background information on the cases.

Religion Clause Will Be On A 2-Day Publication Break

Religion Clause will be on a two-day publication break tomorrow and Wednesday. Look for new posts early on Thursday. These will include reporting on the oral arguments in the  Supreme Court that will be held on Tuesday and Wednesday in two important same-sex marriage cases. For those who want to read more on the oral arguments before Thursday, SCOTUSBlog will have its usual excellent coverage of the arguments. The Supreme Court's own website will link to transcripts and audio recordings of the arguments when they become available.      

Civil Rights Commission Holds Briefing On Anti-Discrimination Rules and Religious Liberty

God Discussion reports on the March 22 U.S. Commission on Civil Rights briefing on Reconciling Nondiscrimination Principles With Religious Liberty. (Commission press release.) Two panels of witnesses appeared at the briefing.  Public comments on the topic are being received by e-mail until April 21.

White House Will Host Passover Seder Tonight

The Jewish festival of Passover begins this evening and, according to The Forward, tonight the President and First Lady will be hosting the annual White House Passover Seder that has become a tradition ever since Obama joined three staff members in 2008 during the Pennsylvania primary for a  makeshift seder in a basement hotel conference room.  As usual, only around 20 people will participate in the White House Seder. According to the Washington Post, Obama has added some unique White House traditions to the Seder ceremony-- using the Truman china for the Seder in honor of the President who first recognized the Sate of Israel, and reading of the Emancipation Proclamation after completing the Passover story. It is anticipated that the White House will also release the President's annual Passover greetings later today.

UPDATE: Here is the full text of the President's Statement on Passover, sending "warmest wishes to all those celebrating Passover here in America, in the State of Israel, and around the world."

Recent Articles and New Books of Interest

From SSRN:

• Mark C. Modak-Truran, Legitimation, (Michael T. Gibbons, Diana Coole, & Kennan Ferguson eds., Encyclopedia of Political Thought (Wiley-Blackwell) (Forthcoming)).
• Sahar F. Aziz, Addressing Discrimination against Arabs, Muslims, and South Asians: Testimony before the Equal Employment Opportunity Commission, (July 18, 2012).

From SmartCILP:

• E. Duncan Getchell, Jr. and Michael H. Brady, How the Constitutions of the Thirty-seven States In Effect When the Fourteenth Amendment Was Adopted Demonstrate That the Governmental Endorsement Test in Establishment Clause Jurisprudence Is Contrary to American History and Tradition, 17 Texas Review of Law & Politics 125-184 (2012).
• Bruce B. Jackson, Secularization by Incorporation: Religious Organizations and Corporate Identity, 11 First Amendment Law Review 90-148 (2012).
• R. Randall Kelso, Justice Kennedy's Jurisprudence on the First Amendment Religion Clauses, [Abstract], 44 McGeorge Law Review 103-165 (2013).
• Timur Kuran and Scott Lustig, Judicial Biases in Ottoman Istanbul: Islamic Justice and Its Compatibility with Modern Economic Life, 55 Journal of Law & Economics 631-666 (2012).
• Ofrit Liviatan, From Abortion to Islam: The Changing Function of Law In Europe's Cultural Debates, 36 Fordham International Law Journal 93-135 (2013).
• David E. Steinberg, Thomas Jefferson's Establishment Clause Federalism, 40 Hastings Constitutional Law Quarterly 277-318 (2013).
• Religion and the Law. Articles by Matthew S. Bowman and students Christopher P. Schandevel & O. Woelke Leithart. 6 Phoenix Law Review 31-91 (2012).

New Books:

• Christian Joppke and John Torpey, Legal Integration of Islam-- A Transatlantic Comparison, (Harvard Univ. Press, April 2013).
• Timothy D. Lytton, Kosher-- Private Regulation in the Age of Industrial Food, (Harvard Univ. Press, April 2013).
• Marc O. DeGirolami, The Tragedy of Religious Freedom, (Harvard Univ. Press, June 2013).
• Faisal Devji, Muslim Zion-- Pakistan as a Political Idea, (Harvard Univ. Press, Sept. 2013).

Recent Prisoner Free Exercise Cases

In Shabazz v. Virginia Department of Corrections, 2013 U.S. Dist. LEXIS 36317  (ED VA, March 15, 2013), a Virginia federal district court dismissed complaints by a Nation of Islam inmate that he is not permitted to purchase NOI religious non-music CDs directly from The Final Call, but must petition to have them added to the catalog of the prison's exclusive vendor.

In Loccenitt v. City of New York, 2013 U.S. Dist. LEXIS 36330 (SD NY, March 15, 2013), a Muslim inmate sued complaining of a lack of Halal meals and inability of inmates in the special housing unit to attend Friday Jummah services.A New York federal district court permitted plaintiff to move ahead on the Jummah services claim against certain defendants and held that an amended complaint could be filed expanding on the Halal meal claim.

In Carter v. Washington Department of Corrections, 2013 U.S. Dist. LEXIS 36365 (WD WA, March 15, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 36367, Feb. 27, 2013) and dismissed a Muslim inmate's complaint about the 2010 Ramadan meal policy.

In Smith v. Riley, 2013 U.S. Dist. LEXIS 35273 (ND AL, March 14, 2013), an Alabama federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 36439, Feb. 7, 2013) and dismissed an Odinist inmate's complaint that he was denied various religious items, some of his books were confiscated and he was discriminated against. The court also dismissed his challenge to the prison's faith-based honor dorms.

In Phillips v. Lecuyer, 2013 U.S. Dist. LEXIS 35267 (ND NY, March 14, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 36452, Feb. 19, 2013), and held that an SHU inmate's threat to facility security justified the refusal to allow him to participate in Native American religious ceremonies with the facility's general population.

In Shapiro v. Community First Services, 2013 U.S. Dist. LEXIS 37137 (ED NY, March 18, 2013), a New York federal district court refused to dismiss a Quaker inmate's suit against employees of a halfway house complaining that during his 3-week residence, the 3-hour weekly pass he was given was not long enough to allow him to travel to and from, and attend, his religious services.

In Jean-Laurent v. Lawrence, 2013 U.S. Dist. LEXIS 38004 (SD NY, March 19, 2013), a New York federal district court dismissed on qualified immunity grounds a claim for damages by a Muslim inmate who claimed his religious beliefs were infringed when he was required to stand in his underwear while his belongings were searched by male and female officers, and was required to proceed to the shower fully in the nude with a female officer less than 15 feet away.

In French v. Maryland Division of Corrections, 2013 U.S. Dist. LEXIS 37862 (D MD, March 15, 2013), a Maryland federal district court dismissed complaints by two Muslim inmates regarding accommodation of Ramadan fasting and failure to provide meals expressly labeled Halal.

In Blanks v. Cate, 2013 U.S. Dist. LEXIS 11233 (ED CA, March 25, 2013), a California federal magistrate judge, in an amended opinion after reconsideration in light of an intervening 9th Circuit decision, again recommended dismissing complaints that authorities failed to procure a Rastafarian chaplain, did not provide a separate outside place of Rastafarian worship, refused to allow possession of religious items and failed to approve a Rastafarian religious vendor.

In Evans v. Jabe, 2013 U.S. Dist. LEXIS 38745 (ED VA, March 18, 2013), a Virginia federal district court dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint about authorities cutting short weekly Jummah services. However the court refused to dismiss at this time plaintiff's complaint that an institutional lock down interfered with meals to allow his Ramadan fasting.

In Stiles v. Shick, 2013 U.S. Dist. LEXIS 40301 (WD NC, March 22, 2013), a North Carolina federal district court dismissed an inmate's claim that prison officials should have purchased an Indian Bible for him.

In Cryer v. Spencer, 2013 U.S. Dist. LEXIS 39447 (D MA, March 21, 2013), a Massachusetts federal district court allowed an inmate to move ahead with claims for declaratory and injunctive relief, but not for damages, in his suit claiming denial of access to a cassette player and Native American audiotapes, and to a Native American clergy member or volunteer.

In Cunningham v. Fayette County Detention Center, (KY App., March 22, 2013), a Kentucky appeals court dismissed a claim for declaratory relief by a Muslim pre-trial detainee who was precluded from participating in group prayer during Ramadan. The court held that the claim is moot because plaintiff is no longer at the detention center involved.

Teachers May Proceed With Free Exercise Challenge To Board's Ending of Sick Leave Use For Religious Holidays

In Berkowitz v. East Ramapo Central School District, (SD NY, March 21, 2013), Jewish teachers and nurses sued after school officials refused to abide by provisions in collective bargaining agreements allowing teachers and school nurses to use paid sick leave days for observance of religious holidays. The school board's change in policy was taken in response to New York state appeals court case holding that compliance with a somewhat different religious observance policy was a violation of the Establishment Clause. In the suit challenging the East Ramapo policy change, a New York federal district court found that the school board's actions did not violate the Establishment Clause or the equal protection clause. However the court held that plaintiffs may proceed with their 1st Amendment and New York state Constitution free exercise challenges.  The court concluded that the collective bargaining agreement provisions here are an appropriate accommodation of religious exercise and do not violate the Establishment Clause.

Another ACA Mandate Challenge By Catholic Non-Profits Dismissed On Ripeness Grounds

In Franciscan University of Steubenville v. Sebelius, (SD OH, March 22. 2013), an Ohio federal district court, following the lead of 15 other federal courts, dismissed for lack of ripeness a challenge to the Affordable Care Act contraceptive coverage mandate in a suit brought by two Catholic non-profits.  Plaintiffs were Franciscan University and the Michigan Catholic Conference. The court concluded:

The “safe harbor” provision, which protects Plaintiffs from enforcement presently, coupled with ongoing process to amend the ACA regulations to address Plaintiffs’ concerns, which is substantiated by the recently published NPRM, makes the harm Plaintiffs allege unlikely to ever occur.

AP reports on the decision.

Malta's New Prime Minister Seeking To Amend Concordat With Vatican On Marriages

Earlier this month, in Malta the Labour Party for the first time in 15 years won control of the government. The new Prime Minister is Joseph Muscat. (Deutsche Welle). The Times of Malta reports today that Muscat will be seeking talks with the Vatican to revise Malta's 1993 Concordat with the Vatican on "The Recognition of Civil Effects to Canonical Marriages and to the Decisions of the Ecclesiastical Authorities and Tribunals About the Same Marriages" (full text).  The prime minister is proposing reforms that will make the civil courts supreme in regard to marriage law. (Malta has 10 separate Concordats with the Vatican on various topics.) Malta's Archbishop Paul Cremona says that the Church is available for such talks. The Prime Minister said that the government also has a mandate to legislate civil unions.

Kentucky Governor Vetoes "Flawed" Religious Freedom Bill

Earlier this month the Kentucky legislature passed HB 279, a religious freedom bill, that provided:

Government shall not substantially burden a person's freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A "burden" shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.

On Friday Gov. Steve Beshear vetoed the bill. In his veto message (full text), he called the bill "flawed," saying in part:

as written, the measure is itself vague, and thereby creates impermissible uncertainty for businesses, individuals and governmental agencies as to the boundaries of existing laws.

In a press release, the Governor's office expanded on the reasons for the veto, objecting to the heightened standard of "clear and convincing proof" and the unclear definition of "burden," both of which make the law different from the federal Religious Freedom Restoration Act. The press release listed dozens of organizations and public officials who supported the governor's veto. Their concerns included possible weakening of local civil rights laws; negative impact on enforcement of drug laws; financial burdens on local governments; and possible withholding of needed medical care or use of religion as a justification for abuse. The governor said he is willing to work with supporters to develop a bill that avoids the unintended consequences of this version.

According to the Richmond Register, the state Senate is prepared to vote to override the governor's veto. However it is less clear whether the House will do so.

Appeals Court Says Church of Cognitive Therapy Is Not A "Religion"

In State of Idaho v. Cordingley, (ID App., March 21, 2013), an Idaho appeals court rejected defendant's claim that possession of marijuana and paraphernalia charges against him should be dropped on religious freedom grounds. Defendant claimed that he was the founder of the Church of Cognitive Therapy (COCT) which established the use of marijuana as a "sacrament." The appeals court agreed with the lower court's ruling that COCT is not a "religion" for purposes of Idaho's Free Exercise of Religion Protected Act. Instead COCT's purpose is merely "to facilitate the use of marijuana, as an accompaniment to a member’s other religious (or nonreligious) beliefs." In reaching that conclusion, the court adopted a multi-factor test for defining religion that had been set out by the 10th Circuit.

UPDATE: A petition for review has been filed with the Idaho Supreme Court. It is available at 2013 Ida. LEXIS 124 (March 21, 2013).

Jehovah's Witnesses In Puerto Rico Get Access To Locked Neighborhoods

A Puerto Rico federal district court, in a case on remand from the 1st Circuit (see prior posting), has ordered neighborhood homeowners' associations (urbanizations) that allow entry into the neighborhood only through an unmanned locked gate operated by a key, access code or beeper to provide Jehovah's Witnesses who wish to proselytize in the neighborhood access equal to that of residents.  In Watchtower Bible Tract Society of New York, Inc.v. Rodriguez, (D PR, March 21, 2013), the court said that this remedy prevents Jehovah's Witnesses' free exercise and expression rights from being limited by any time, place or manner restrictions. The court refused to decide at this time which urbanizations are legitimately using unmanned gates, saying that municipalities should first make that determination. Politics 365 reports on the decision.

Report Claims Religious Liberty Arguments Are Being Used To Stifle Civil Rights

Political Research Associates, an organization devoted to challenging the right and advancing social justice, this week issued a report written by Jay Michaelson titled Redefining Religious Liberty-- The Covert Campaign Against Civil Rights. The Report's Executive Summary reads in part:

A highly-active, well-funded network of conservative Roman Catholic intellectuals and evangelicals are waging a vigorous challenge to LGBTQ and reproductive rights by charging that both threaten their right-wing definition of “religious liberty.” The Christian Right campaign to redefine “religious liberty” has been limiting women’s reproductive rights for more than a decade and has recently resulted in significant religious exemptions from antidiscrimination laws, same-sex marriage laws, policies regarding contraception and abortion, and educational policies. Religious conservatives have succeeded in reframing the debate, inverting the victim-oppressor dynamic, and broadening support for their agenda.

While the religious liberty debate is a growing front in the ongoing culture wars, it is actually an old argument repurposed for a new context. In the postwar era, the Christian Right defended racial segregation, school prayer, public religious displays, and other religious practices that infringed on the liberties of others by claiming that restrictions on such public acts infringed upon their religious liberty. Then as now, the Christian Right turned antidiscrimination arguments on  their heads: instead of African Americans being discriminated against by segregated Christian universities, the universities were being discriminated against by not being allowed to exclude them; instead of public prayers oppressing religious minorities, Christians are being oppressed by not being able to offer them.

Another Small Business Sues To Challenge Contraceptive Coverage Mandate

Lawsuits by small businesses and their owners asserting religious objections to the Affordable Care Act's contraceptive coverage mandate continue to be filed. The latest is Eden Foods, Inc. v. Sebelius, (ED MI, filed 3/20/2013) (full text of complaint). The suit was filed by the corporation and its chairman, president and sole shareholder, Michael Potter. Eden manufactures and sells natural and organic foods, including a line of kosher food. The complaint asserts, in part:

Plaintiff Michael Potter cannot compartmentalize his conscience or his religious beliefs from his daily work and actions as the Chairman, President, and sole shareholder of Plaintiff Eden Foods. Therefore, Plaintiff Michael Potter and Plaintiff Eden Foods share a common mission of conducting their business operations with integrity and consistent with the teachings, mission, and values of the Catholic Church.

The complaint asserts 1st Amendment, RFRA and Administrative Procedure Act claims. Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Colombia's Council of State Invalidates Regulations Mandating Hospitals Perform Certain Abortions

In 2006, Colombia's Constitutional Court struck down the country's total ban on abortions and ruled that abortion must be allowed in cases of rape, incest, fetal malformation or where the life of the mother is threatened. (Background.) Later that year, the country's Ministry of Social Protection issued a decree to implement the court's decision, and refused to exempt Catholic hospitals that had religious objections to performing abortions. In 2009, the Council of State, Colombia's highest administrative court, suspended the decree while considering its constitutionality.  Now, according to a report yesterday by LifeSite News, the Council of State has ruled that the implementing decree is invalid.  It concluded that the Ministry can only issue decrees to implement laws passed by the legislature.  Only the National Congress can issue regulations to implement Constituitonal Court rulings.

Justin Welby Enthroned As New Archbishop of Cantebury

Reuters reports that in Britain today, Justin Welby was officially enthroned as the 105th Archbishop of Canterbury. The Telegraph describes the elaborate ceremony held at Cantebury Cathedral which made Welby the head of the Church of England and the leader of the Anglican Communion around the world. In his inaugural sermon (full text), Archbishop Justin said in part:

For more than a thousand years this country has to one degree or another sought to recognise that Jesus is the Son of God; by the ordering of its society, by its laws, by its sense of community. Sometimes we have done better, sometimes worse. When we do better we make space for our own courage to be liberated, for God to act among us and for human beings to flourish. Slaves were freed, Factory Acts passed, and the NHS and social care established through Christ-liberated courage. The present challenges of environment and economy, of human development and global poverty, can only be faced with extraordinary courage.

The new archbishop brings an unusual personal history to the position.  For 11 years before beginning his theological studies, he worked as an executive in French and British oil exploration and production companies. While he was in France, his 7-month old daughter was killed in a car crash.  Welby's paternal grandfather, Bernard Weiler, was a German Jewish immigrant who moved to England in 1884. (Background). The Archbishop's father led a complicated and secretive life. Welby learned his true family history only as an adult.

Russian Court Rejects Initial Appeal of Sentences By Pussy Riot Members

According to Sky News, in Russia the presidium of the Moscow City Court on March 15 rejected an appeal by Nadezhda Tolokonnikova and Maria Alyokhina, the two members of the punk group Pussy Riot who have been sentenced to two-years in remote prison camps for 'hooliganism motivated by religious hatred." (See prior posting.)  The sentence came in the band's prosecution for an anti-Putin protest performance in Christ the Savior Cathedral. In addition to rejecting the defendants' appeal, the court also rejected an official complaint by Russia's rights ombudsman who sought a new trial for the women, claiming that their actions were not serious enough to be classified as a crime. The judge ruled that the sentence was "fair and proportional to the offence."  The women now plan an appeal to the chairman of the Moscow City Court, and then to the Supreme Court.

British Guest House Owners Get Around Decision Barring Discrimination Against Same-Sex Couples

Last year, England's Court of Appeal upheld upheld a damage award under Britain's Equality Act against a Christian couple who operated a hotel for refusing, on religious grounds, to rent a double-bedded room to a same-sex couple that had reserved it. (See prior posting.) According to today's London Telegraph, the couple say they have now found a way to continue to refuse to rent rooms to same-sex couples. Peter and Hazelmary Bull have turned their guest house into a not-for-profit organization that offers respite care for Christians.  Guests are limited to those who are in agreement with the Bulls' Christian values. Presumably this move allows the Bulls to rely on the exemption in Schedule 23 of the Equality Act which, among other things, permits non-profit organizations formed "to enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief" to discriminate on the basis of religion or sexual orientation in providing facilities or services. Meanwhile the Bulls are also pursuing an appeal of the original decision to the Supreme Court.

5th Circuit Says Bar On Monks' Sale of Caskets Is Unconstitutional

In St. Joseph Abbey v. Castille, (5th Cir., March 20, 2013), the U.S. 5th Circuit held unconstitutional rules issued by the Louisiana Board of Funeral Directors that limit the sale of caskets to funeral homes. The law was challenged by a group of Benedictine monks who make and sell wooden caskets at prices significantly lower than offered by funeral homes. In finding that the law violates the due process and equal protection clauses, the court said:

The great deference due state economic regulation does not demand judicial blindness to the history of a challenged rule or the context of its adoption nor does it require courts to accept nonsensical explanations for regulation. The deference we owe expresses mighty principles of federalism and judicial roles. The principle we protect from the hand of the State today protects an equally vital core principle – the taking of wealth and handing it to others when it comes not as economic protectionism in service of the public good but as “economic” protection of the rulemakers’ pockets. Nor is the ghost of Lochner lurking about. We deploy no economic theory of social statics or draw upon a judicial vision of free enterprise. Nor do we doom state regulation of casket sales. We insist only that Louisiana’s regulation not be irrational – the outer-most limits of due process and equal protection....  

The funeral directors have offered no rational basis for their challenged rule and, try as we are required to do, we can suppose none...

The New Orleans Times-Picayune reports on the decision. (See prior related posting.)

Kentucky Settles Establishment Clause Case With New Safeguards For Child-Care Agencies

A settlement agreement has been reached in the long-running litigation in Pedreira v. Kentucky Baptist Homes for Children (see prior posting).  Yesterday both ABP and an ACLU press release reported on the Settlement Agreement (full text) in the case in which taxpayers charged that payment of state funds to KBHC for the care of children violates the Establishment Clause. The ACLU describes the settlement terms:

Under the settlement, child-care agencies that contract with the state will be forbidden to discriminate in any manner against any child based on the child's views about religion or to pressure children to participate in religious worship or instruction. Publicly funded child-care agencies and foster homes across the state also will be barred from placing religious items in children's rooms without their consent, and religious materials will be given only to children who request them.

In addition, prior to placing a child with a religiously affiliated child-care agency or foster home, the state will inform children and parents of the provider's religious affiliation, and if the child or parent objects, the state will endeavor to provide an alternative placement.

UPDATE: While the state of Kentucky is agreeing to a settlement, Sunrise Children's Services (formerly known as Kentucky Baptist Home for Children) says in a March 21 press release that it is not and is pressing for a ruling on the merits. It claims that it does not engage in religious coercion, nor does government money subsidize any religious activity.

Plaintiffs May Move Ahead On Some of Their Claims Charging Anti-Semitic Bullying

In Shively v. Green Local School District Board of Education, (ND OH, Feb. 28, 2013), parents filed suit claiming that school officials and employees failed to prevent or respond to physical, verbal and electronic religion-based and gender-based bullying of their daughter that went on for years.  Among the many instances of bullying set out in the complaint are claims that students regularly told their daughter she would "rot in Hell" because she did not believe in Jesus Christ, and regularly called her a "dirty Jew" or "Hitler."  An Ohio federal district court permitted plaintiffs to move ahead with substantive due process and equal protection allegations, as well as claims of negligence. However it dismissed several other claims, including one based on the free exercise clause. The court said:

Plaintiffs argue that [their daughter] T.S. has the right to be left alone regarding her religion. Moreover, she has the right not to be punished or put at some disadvantage for being Jewish.... While the events described ... are disturbing on many levels, the Amended Complaint ... presents no facts suggesting that Defendants compromised Plaintiffs’ ability to practice religion.

Factual Issues Remain In 7th Day Adventists' Challenge To Solicitation Ordinance

In South-Central Conference of Seventh Day Adventists v. City of Alabaster, (ND AL, March 19, 2013), Seventh Day Adventists sued to enjoin the city of Alabaster, Alabama from enforcing its Solicitation Permit Ordinance against the church's Literature Evangelists who canvass door-to-door in the summer. Both parties moved for summary judgment. The court held that whether enforcement of the ordinance against plaintiffs violates the 1st Amendment depends on whether they are engaged in commercial or non-commercial speech. It continued:

If ... the Literature Evangelists were evangelizing and selling books, then ... the Plaintiffs’ speech would be religious in nature, and the Ordinances would be invalid as restricting First Amendment protected speech.... [However if] the Literature Evangelists were exclusively selling books and not evangelizing in any way, ... Plaintiffs’ speech would be commercial in nature, and the City could presumably regulate it....

All one must do is read the Literature Evangelists’ and City citizens’ divergent explanations ... to realize that the two distinct narratives that emerge cannot be reconciled. Because the court cannot resolve these differing accounts ... without making some credibility and factual determinations, the court must deny summary judgment for both parties.

Pope's Record Of Dealing With Abusive Priests Is Reviewed

The Washington Post this week reviewed the record of Pope Francis in dealing with sex abuse by priests when he served as Archbishop of Buenos Aires. It focuses particularly on issues raised by the case of  Father Julio Cesar Grassi. The Post reports:

during most of the 14 years that Bergoglio served as archbishop of Buenos Aires, rights advocates say, he did not take decisive action to protect children or act swiftly when molestation charges surfaced; nor did he extend apologies to the victims of abusive priests after their misconduct came to light.

It adds however:

There is no evidence that Bergoglio played a role in covering up abuse cases. Several prominent rights groups in Argentina say the archbishop went out of his way in recent years to stand with secular organizations against crimes such as sex trafficking and child prostitution. They say that Bergoglio’s resolve strengthened as new cases of molestation emerged in the archdiocese and that he eventually instructed bishops to immediately report all abuse allegations to police.

Meanwhile, the National Catholic Reporter yesterday said that the Pope supports zero tolerance of child abuse, citing an interview with him last year.

France's High Court Rules Private School Cannot Fire Muslim Teacher For Wearing Hijab

According to France 24, yesterday the Social Chamber of the Cour de Cassation (France's highest court) ruled that a private nursery school discriminated on the basis of religious belief against a Muslim teacher when it fired her for refusing to remove her hijab while at work. The court held that the principle of secularism established by the French constitution does not apply to private employers, so it cannot be invoked to deprive private employees of the anti-discrimination protections of France's Labor Code. The court ordered the school to pay a fine of 2500 Euros to the fired teacher, Fatima Afif. The court issued a Communique (full text in French) summarizing its decision as well as a decision in a companion case in which it held that the principle of secularism and neutrality did justify dismissing a public service employee for wearing a hijab. According to the court, the prohibition on manifesting religious beliefs by external signs, particularly clothing, applies even to employees providing a public service through a private employer. The employee involved worked for a city's health insurance fund.

Diocese To Pay $700K In Abuse Suit, Avoiding New Trial

The Milwaukee Journal-Sentinel reported yesterday that the Catholic Diocese of Green Bay (WI) has agreed to pay $700,000 in damages to two brothers who were sexually assaulted in the 1970's by now-defrocked priest John Patrick Feeney.  This amount is the damages awarded last July by a state court jury that heard the case.  Subsequently however the verdict was overturned because of juror misconduct, and a new trial had been scheduled to start in May.

Company Charged With Religious Discrimination By EEOC Settles Suit

The EEOC yesterday announced that a Nebraska-based lighting products company has agreed to settle a religious discrimination lawsuit brought against it by the Commission. According to the EEOC complaint, a Tulsa, Oklahoma branch manager advertised for an operations supervisor through the website of a Tulsa church. When Edward Wolf who was not a member of that church applied for the position, most of his job interview focused on his religious activities and beliefs. He was asked to list the churches he had attended, when and where he was "saved", and whether he would attend Bible study at work before clocking in.  Wolf was not hired for the position after the branch manager expressed dissatisfaction with his answers. In the settlement agreement, which must still be approved by the court, Voss Lighting Co. has agreed to pay $82,500 and will also  undertake specified steps to prevent future religious discrimination.

UPDATE: The court approved the settlement on March 20. (Tulsa World).

Was Religious Accommodation Needed For SCOTUS Arguments In Same-Sex Marriage Cases?-- An Editorial Commentary

While much has been written about the intersection of religious belief and same-sex marriage, next week's oral arguments before the U.S. Supreme Court in two same-sex marriage cases pose another religious issue that has hardly been noticed.  Oral arguments are scheduled for March 26 in Hollingsworth v. Perry, and on March 27 in United States v. Windsor. These dates are the first two days of Passover-- holidays in the Jewish calendar on which traditional Jews abstain from work.  One wonders if anyone involved sought, or thought about, religious accommodation.  Three Supreme Court Justices are Jewish (Justices Breyer, Ginsburg and Kagan). One of the eight attorneys presenting oral arguments is Jewish (Roberta Kaplan). The individual who created the legal issue in one of the cases was Jewish-- Edie Windsor's deceased partner, Thea Spyer. Amicus briefs in the cases have been filed by the American Jewish Committee, and by a broad coalition of religious groups that include national organizations representing the Conservative, Reform and Reconstructionist branches of Judaism.

Among the numerous rallies, demonstrations and events planned in Washington next week to coincide with oral arguments, the United for Marriage Coalition has scheduled "Parting the Waters: A Seder for Love, Liberation & Justice" on Tuesday evening, March 26.  So at least someone has noticed the significance of the dates.

In Israel, New Government Is Formed Without Haredi Parties In Coalition

In Israel yesterday, Benjamin Netanyahu's new coalition government was sworn in, without the two haredi (ultra-Orthodox) parties that had traditionally been part of past coalitions included in the government. Instead Netanyahu's coalition relies mainly on the secular Yesh Atid party and the religious pro-settler Jewish Home party.  The Times of Israel chronicles the bitter comments by the haredi Shas and United Torah Judaism lawmakers who now find themselves in their new role as members of opposition parties in the Knesset. AP reports that Yesh Atid will move quickly to submit a bill to reform the military draft to include Orthodox yeshiva students, and will also press for inclusion of more instruction in math, science and English in haredi schools.

Affordable Care Act Pre-Empts State Law Giving Opt Out From Contraceptive Coverage

In Missouri Insurance Coalition v. Huff, (ED MO, March 14, 2013), a Missouri federal district court issued a declaratory judgment finding invalid provisions of Missouri law that permit an opt-out on moral or religious grounds from the federal Affordable Care Act mandate, as well as the state mandate, that health insurance policies cover contraceptive services.  The court concluded that Missouri Revised Statutes § 376.1199, subdivisions 4, 5, and 6(1), (2) and (3) are pre-empted by the federal Affordable Care Act. Those sections provide in part:

Any health benefit plan ... shall provide clear and conspicuous written notice ... : (1) Whether coverage for contraceptives is or is not included; (2) That an enrollee ... has the right to exclude coverage for contraceptives if such coverage is contrary to his or her moral, ethical or religious beliefs; (3) That an enrollee who is a member of a group health benefit plan without coverage for contraceptives has the right to purchase coverage for contraceptives....

The court said:

Here, the federal law and regulations, with limited exceptions, provide that insurers must provide contraceptive coverage, without cost-sharing by an insured. The State law says that insurers cannot provide contraceptive coverage to any person or entity that objects to such coverage based on any moral, ethical, or religious objection. The Court is hard-pressed to see how this does not create a direct conflict for Missouri health insurers.

The court had previously issued a temporary restraining order in the case. AP reports on last week's decision.

House Panel Holds Hearing On Plight of Religious Minorities In Iran

Last Friday, the U.S. House of Representatives Tom Lantos Human Rights Commission held a hearing on The Worsening Plight of Religious Minorities in Iran. In its background statement, the Commission says:

Since the beginning of 2012, there has been an increase in the arrest, imprisonment and killing of religious and cultural minorities in Iran – particularly Christians, Baha’is and Sufi Muslims. 

Transcripts of the testimony of the five witnesses appearing before the Commission are available on the Commission's website.

Ban On School Girls Wearing Hijabs In Russian Caucasus Region Stirs Controversy

The New York Times yesterday reported on the controversy that has been set loose in Stavropol, a region in Russia at the edge of the Caucasus mountain range, after authorities in the far eastern part of the region have banned girls from wearing hijabs in public schools. According to the Times, while Stavropol is 81% ethnic Russian, conservative Muslim Dagestanis have been moving into the region, though only a few girls in a few villages actually wore hijabs to school. The Times continues:

Nevertheless, with conservative, pro-church sentiment surging in Russia, national news broadcasts highlighted the Stavropol story, showing an administrator guiding a child in a hijab back onto the school bus and sending her home.

The ban is being challenged in court, with a first hearing scheduled for tomorrow.

Self-Described Moorish American Nationals Are Taking Over Unoccupied Homes

The Washington Post yesterday reported on an "odd and perplexing phenomenon popping up in cities across the country" in which individuals, claiming to be Moorish American Nationals take over foreclosed or unoccupied homes-- often very expensive ones-- distorting tenets of the Moorish Science Temple of America to support their actions. Asserting claims that black people lived in what is now the United States long before Europeans arrived, they create elaborate arguments that various land instruments are invalid and local laws need not be obeyed. Generally police show up within a few days to evict the trespassers.

Supreme Court Denies Cert. In Establishment Clause Challenge To KY Homeland Security Statutes

The U.S. Supreme Court today denied review in American Atheists, Inc. v. Kentucky Office of Homeland Security, (Docket No. 12-613, certiorari denied 3/18/2013). (Order List.) In the case, a Kentucky state appeals court, in a 2-1 decision, rejected an Establishment Clause challenge to legislative findings enacted as part of Kentucky's 2002 Antiterrorism Act. The findings recited that "the safety and security of the Commonwealth cannot be achieved apart from reliance on Almighty God...." Another statute called on the state Department of Homeland Security to include in agency training and educational materials the language regarding reliance on God. (See prior posting.) The Kentucky Supreme Court denied review.

Bibliography of 2012 Jewish Law Publications Released

The Association of American Law Schools Section on Jewish Law last week published its March 2013 Newsletter which includes an 11-page bibliography of books and articles on Jewish Law published last year. The bibliography also includes a list of specialty journals.

Recent Articles of Interest

From SSRN:

• Kenneth L Marcus, Is Anti-Semitism Unique?: Review of Clemens Heni, Antisemitism: A Specific Phenomenon (Berlin: Edition Critic, 2013) (2013). Brandeis Brief (March 2013).
• Steven H. Resnicoff, Family Planning and Government Regulation – Jewish Law Perspective, (DePaul Journal of Health Care Law, Forthcoming).
• Alan Hurst, Hosanna-Tabor and the Exaggerated Decline of Separationism, (March 7, 2013).
• Marc O. DeGirolami, Book Review, Stephen v. Monsma, Pluralism and Freedom: Faith-Based Organizations in a Democratic Society, (Journal of Church and State (Forthcoming)).
• Russell Powell, Evolving Views of Islamic Law in Turkey, (March 14, 2013).
• Anna Jane Kloeden High, Government Beyond Law: Exploring Charity Regulation and Spaces of Order in China, (December 1, 2011).
• Andy G. Olree, 'Pride Ignorance and Knavery': James Madison's Formative Experiences with Religious Establishments, (Harvard Journal of Law and Public Policy, Vol. 36, No. 1, 2013). 

From SmartCILP and elsewhere:

• Victor E. Schwartz and Christopher E. Appel, Robert S. Marx Lecture. The Church Autonomy Doctrine: Where Tort Law Should Step Aside, (80 University of Cincinnati Law Review 431-499 (2011)).
• CambridgeBlog, Virtual Roundtable: Same-Sex Marriage, (March 15, 2013).

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