Religion Clause

Monday, March 31, 2014

Sunday, March 30, 2014

Recent Prisoner Free Exercise Cases

In Jackson v. Nixon, (8th Cir., March 28, 2014), the U.S. 8th Circuit Court of Appeals in a 2-1 decision reversing the district court held that an atheist inmate adequately pled that requiring him to complete a substance abuse program with religious content to be eligible for early parole violates the Establishment Clause. Judge Smith dissented arguing that the inmate suffered no punishment when he withdrew from the substance abuse program and other avenues for early parole were available.

In Vega v. Rell, 2014 U.S. Dist. LEXIS 38199 (D CT, March 24, 2014), a Connecticut federal district court dismissed a Muslim inmate's complaints that the prison commissary falsely labeled Jolly Rancher candies as Halal; that cheese on the Common Fare menu was not halal; that prison prayer rugs were dirty; and that he was not allowed to purchase a digital Qur'an or Islamic educational CDs.

In White v. Dooley, 2014 U.S. Dist. LEXIS 38859 (D SD, March 25, 2014), a South Dakota federal district court dismissed an inmate's complaint that he was denied access to certain religious items, hardcover religious books and religious study classes.

In Van Buren v. Coy, 2014 U.S. Dist. LEXIS 39756 (WD KY, March 26, 2014), a Kentucky federal district court dismissed an inmate's complaint that he was denied religious services by being placed in segregation.

In Davis v. Michigan Department of Corrections, 2014 U.S. Dist. LEXIS 38763 (WD MI, March 25, 2014), a Muslim inmate alleged that he suffered food poisoning after eating items from his Ramadan food bag that were left unrefrigerated for many hours, and subsequently he only ate items from his food bag that did not require refrigeration. A Michigan federal district court held that this did not amount to a free exercise violation because, while he may have preferred more or different food, he did not show that this imposed a substantial burden on his free exercise.

In Maloney v. Ryan, 2014 U.S. Dist. LEXIS 39360 (D AZ, March 25, 2014), an Arizona federal district court dismissed a Muslim inmate's claim for damages under the free exercise clause finding that defendants had qualified immunity. No legal authority put them on notice that providing Ramadan breakfast before sunrise, rather than before dawn, violated inmates' constitutional rights. As to injunctive relief, the court gave defendants 30 days to show that their subsequent change in the breakfast policy is permanent.

In Bey v. Virginia, 2014 U.S. Dist. LEXIS 39636 (ED VA, March 20, 2014), a Virginia federal district court dismissed a complaint by a Moorish American Moslem inmate that he was denied a vegetarian diet, and that in court proceedings, the judge told him to remove his "religious national headdress," did not use his "free national name," and called him "black"instead of Moor.

In Plummer v. Riley, 2014 U.S. Dist. LEXIS 40654 (D SC, March 26, 2014), a South Carolina federal district court adopted most of a magistrate's recommendations (2014 U.S. Dist. LEXIS 42250, Feb. 26, 2014), and permitted a Rastafarian inmate to proceed with his complaint that he must sign up to attend religious services, cannot attend Rastafarian study groups and was suspended from chapel by the chaplain in retaliation for filing a grievance against him for his not allowing Rastafarians to celebrate Kwanza.

In Ballard v. Johns, 2014 U.S. Dist. LEXIS 41069 (ED NC, March 27, 2014), a North Carolina federal district court dismissed a complaint by a Catholic civil detainee held as a sexually dangerous person that he was denied religious services while in administrative segregation.

In Dunn v. Kentucky Department of Corrections, 2014 U.S. Dist. LEXIS 41640 (WD KY, March 28, 2014), a Kentucky federal district court dismissed a complaint by an Odinist (Astaru) inmate (1) that he is only allowed to buy the Thor's Hammer medallion that is available from the approved vendor, and it is of poor quality and features Celtic artwork; and (2) he is not permitted to own a set of personal rune stones.

A Comic Strip Commentary on Hobby Lobby

The Strip in today's New York Times Sunday Review is titled Fun With Corporate Conscience Clauses. It is a comic-strip commentary on the Hobby Lobby case, corporate free exercise rights and religious conscientious objection which readers will find either immensely humorous or immensely offensive depending on one's views on the issues involved.

Saturday, March 29, 2014

Suit Challenging Ohio's Refusal to Recognize Same-Sex Marriage Dropped When Couple Gets Family Health Insurance Policy

AP reports that a gay couple in Cleveland on Friday voluntarily dismissed a lawsuit they had filed last month challenging Ohio's refusal to recognize same-sex marriages. Al Cowger Jr. and Tony Wesley Jr., who were married in New York state in 2012, sued when they were unable to obtain family health insurance coverage for themselves and their adopted daughter through the federal health insurance marketplace. They were initially told that a family policy was not available because Ohio does not recognize their marriage. However this week they were finally able to obtain a family policy through the Healthcare.gov website. On March 14, the Department of Health and Human Services told insurance companies that starting next year, if they offer policies to opposite-sex spouses, they cannot choose to deny coverage to same-sex spouses.

Lutheran Affiliated Senior Housing Not Entitled To Property Tax Exemption

In Meridian Village Association v. Hamer, (IL App., March 28, 2014), an Illinois appeals court upheld the Illinois Department of Revenue's denial of a property tax exemption to a senior housing facility that was affiliate with Lutheran Senior Services. It found that appellants had not shown their property is used exclusively for charitable purposes, nor is it used exclusively for religious purposes:

While the retirement community allows members of the Lutheran Church an opportunity to act out and evangelize their religion in the context of caring for seniors, the operation of the facility is not necessary to promote their religion, because that can be accomplished through other means. Other than caring for the elderly in a faith-inspired manner, there was little evidence of actual religious activity on the property.

Friday, March 28, 2014

Developments In Missouri and Michigan On Same-Sex Marriage Recognition

Here is an update on the rapidly moving developments in two states relating to recognition of same-sex marriages.

In Missouri, where a suit seeking to require the state to recognize same-sex marriages performed elsewhere is pending, last November the governor in Executive Order 13-14 directed the state Department of Revenue to accept joint tax returns from same-sex couples who are legally married in other states. This led in February to the filing of articles of impeachment (full text) against the Democratic governor by a Republican lawmaker. (See prior posting.) In January 2014 a lawsuit was filed seeking a declaratory judgment that the Executive Order is unconstitutional and an injunction against its enforcement. The complaint (full text) in Messer v. Nixon, (MO Cir. Ct., filed 1/14/2014) contends that the executive order is inconsistent with Missouri Constitution Art. 1, Sec. 33 that provides the only marriages that will be recognized in the state are ones between a man and a woman. Now, as the April 15 filing date for tax returns approaches, PoliticMO reports that plaintiffs in the lawsuit last Wednesday filed a motion asking the court to grant a temporary restraining order preventing enforcement of the Executive Order.

In Michigan, a federal district court earlier this month struck down the state's constitutional ban on same-sex marriage. The next day, the 6th Circuit granted a stay of the order, pending appeal. However in the hours in between, some 300 same-sex couples married. (See prior posting.) In an announcement today (full text), U.S. Attorney General Eric Holder announced that the federal government would recognize these 300 marriages for purposes of eligibility for federal benefits. He said in part:

The Governor of Michigan has made clear that the marriages that took place on Saturday were lawful and valid when entered into, although Michigan will not extend state rights and benefits tied to these marriages pending further legal proceedings. For purposes of federal law, as I announced in January with respect to similarly situated same-sex couples in Utah, these Michigan couples will not be asked to wait for further resolution in the courts before they may seek federal benefits to which they are entitled.

Pakistani Court Sentences Christian Man To Death For Blasphemy

Reuters reported yesterday that a Pakistani court has convicted Sawan Masih of blasphemy and sentenced him to a fine and to death by hanging. Masih, a Christian, was charged with blasphemy last year after he allegedly made remarks against the Prophet Mohammed when he got into an argument with two men while drinking. The incident led to Muslims burning down nearly 100 homes of Christians in Lahore. (See prior posting.) At least 16 people are on death row in Pakistan for blasphemy, but none have in fact been executed. 20 others are serving life sentences.

Judge Calabresi Interviewed On Establishment Clause

Religion & Politics yesterday published an interview with Guido Calabresi, senior judge on the U.S. 2nd Circuit Court of Appeals and former dean of Yale Law School, on his views of the Establishment Clause. Judge Calabresi authored the 2nd Circuit's opinion in Galloway v. Town of Greece, the legislative prayer case (see prior posting) that was argued this term and is awaiting decision by the U.S. Supreme Court. Describing the 2nd Circuit's opinion, Calabresi said:

We took the position that a non-sectarian prayer is either a contradiction in terms or is an establishment. It is an establishment of the “okay” religions. Of “what we are all agreed on.” What we wanted to do was to find a way of allowing people to pray without having a town define itself as Christian—which was the claim about this case. But, keep in mind that, in our circuit, we also have Kiryas Joel, a town that wants to define itself as Satmar, a particular sect of the Jewish faith. In other words, we have many forms of the desire for self-definition, of the desire to say, in religious terms, “We are something.” What we came up with was the notion that a town can do anything it wants so long as it is open to every religion and non-religion.

U.S. Catholic Diocese Sues Diocese In Ireland Over Transfer of Abusive Priest

AP reported yesterday that an unusual lawsuit has been filed in court in Ireland by the U.S. Catholic diocese of New Ulm, Minnesota. The suit was filed in February against Diocese of Clogher in Ireland and the religious order, Servants of the Paraclete, alleging that in 1981 the Irish diocese transferred a priest, Rev. Francis Xavier Markey, to Minnesota without warning U.S. church officials that he had been accused of sexual abuse. The New Ulm diocese has been sued by a victim of Markey's.

Contempt Motion Filed Against Google Over "Innocence of Muslims" Video

As previously reported, last month in Garcia v. Google, Inc., the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a preliminary injunction should be granted to require the controversial film "Innocence of Muslims" to be removed from YouTube. The decision came in a copyright suit filed by Cindy Lee Garcia who acted in a portion of the film. According to Hollywood Reporter, on Tuesday Cindy Garcia filed an emergency contempt motion (full text) with the 9th Circuit. The motion claims that a version of the video is still available on Google's worldwide platform, and is viewable in Egypt where a fatwa was issued for Ms. Garcia's execution. According to the motion, Google insists that Ms. Garcia has the burden of informing it of every URL on its platforms that has the video before Google has an obligation to take it down. The motion also claims that Google has not taken down any copies of the video, but has merely disabled it so that the viewer sees a thumbnail and an explanation from Google. In the meantime, Google is seeking en banc review of the 9th Circuit's decision.

Thursday, March 27, 2014

Obama and Pope Francis Meet At The Vatican

As reported by AP, President Obama today met with Pope Francis at the Vatican. The Vatican Press Office issued a statement (full text) after the meetings, reading in part:

During the cordial meetings, views were exchanged on some current international themes and it was hoped that, in areas of conflict, there would be respect for humanitarian and international law and a negotiated solution between the parties involved. In the context of bilateral relations and cooperation between Church and State, there was a discussion on questions of particular relevance for the Church in that country, such as the exercise of the rights to religious freedom, life and conscientious objection, as well as the issue of immigration reform. Finally, the common commitment to the eradication of trafficking of human persons in the world was stated.

The White House released excerpts from the President's press conference on his audience with the Pope. They read in part:

... [W]e had a wide-ranging discussion. I would say that the largest bulk of the time was discussing two central concerns of his. One is the issues of the poor, the marginalized, those without opportunity, and growing inequality....

And then we spent a lot of time talking about the challenges of conflict and how illusive peace is around the world.... I reaffirmed that it is central to U.S. foreign policy that we protect the interests of religious minorities around the world....

In terms of domestic issues, the two issues that we touched on -- other than the fact that I invited and urged him to come to the United States, telling him that people would be overjoyed to see him -- was immigration reform.... I described to him how I felt that there was still an opportunity for us to make this right and get a law passed.

And he actually did not touch in detail on the Affordable Care Act. In my meeting with the Secretary of State, Cardinal Parolin, we discussed briefly the issue of making sure that conscience and religious freedom was observed in the context of applying the law. And I explained to him that most religious organizations are entirely exempt. Religiously affiliated hospitals or universities or NGOs simply have to attest that they have a religious objection, in which case they are not required to provide contraception although that employees of theirs who choose are able to obtain it through the insurance company.

And I pledged to continue to dialogue with the U.S. Conference of Bishops to make sure that we can strike the right balance, making sure that not only everybody has health care but families, and women in particular, are able to enjoy the kind of health care coverage that the AC offers, but that religious freedom is still observed.

District Court Enjoins Sectarian Invocations At County Council Meetings

In Hake v. Carroll County Maryland, (D MD, March 26, 2014), a Maryland federal district court granted a preliminary injunction barring Carroll County, Maryland commissioners opening their commission sessions with sectarian prayer. Currently sessions are opened with a prayer led by one of the commissioners, on a rotating basis. The Board's voluntary guidelines for commissioners calls for them to "refrain from using Jesus, Jesus Christ, Savior, Prince of Peace, Lamb of God and the like." However, during 2011-2012, at least 40% of the invocations contained sectarian Christian references, while no prayers made non-Christian sectarian references. In finding that plaintiffs are likely to succeed on the merits of their Establishment Clause claim, the court said in part:

Although the podium guidelines discourage sectarian references, the Board has made no effort to curb the frequent sectarian references made by its own Commissioners.... At this time, the record indicates that the prayers invoked by Commissioners before Board meetings advance one religion to the exclusion of others.

The court ruled that Commissioners can continue to deliver non-sectarian invocations, but are enjoined from invoking the name of a specific deity associated with any specific faith or belief in their opining prayers. The American Humanist Association in a press release calls the decision "a major victory for separation of church and state." The Baltimore Sun reports on the decision. The U.S. Supreme Court this term has heard oral arguments in a case raising similar issues, and will decide the case within the next few months. (See prior posting.)

UPDATE: A March 27 release from the American Humanist Association says that a Carroll County commissioner defied the preliminary injunction and delivered a sectarian prayer at a county council meeting one day after the preliminary injunction was ordered. The AHA sent a contempt warning letter (full text) to counsel stating in part: "As a courtesy, we are going to refrain from seeking contempt charges against the commissioner in this one instance, in the hopes that today’s behavior was simply an emotional outburst made without the benefit of serious consideration of the rights of plaintiffs and others. She should understand, however, that any continued defiance of the court order will leave us with no choice but to seek a contempt order."

Religious Non-Profits Win Injunction Against Contraceptive Coverage Mandate Opt-Out Rules

In a 91-page opinion in Roman Catholic Archdiocese of Atlanta v. Sebelius, (ND GA, March 26, 2014), a Georgia federal district court permanently enjoined the government from requiring Catholic Education of North Georgia and Atlanta Catholic Charities to execute and deliver a self-certification form to the third-party administrator of their health care plans. Final Rules under the Affordable Care Act require the self-certification for objecting religious non-profits to opt out of the requirement to provide coverage for contraceptive services.

The court concluded that the Final Rules impose a substantial burden on plaintiffs' free exercise rights under RFRA:

... [T]he plain terms of the Final Rules show that the purpose and effect of the self-certification form is to enable the provision of contraceptive coverage. The self-certification form is an integral part of the Government’s contraceptive coverage scheme..... [I]t is a Government imposed device that pressures the Plaintiffs into facilitating the contraceptive coverage to which they have sincerely held religious objections.....

The Court’s conclusion does not change even if the Government had argued, as it did in other cases, that it has no ERISA authority to require a church plan to contract with a TPA to provide contraceptive coverage.... It is the fact of the requirement that is important, not whether the Government will or will not choose to enforce it....

The court also concluded that the government had not shown a compelling interest for imposing the substantial burden:

The Government claims that exempting CENGI and Catholic Charities from the contraceptive mandate would hinder its ability to effectively and uniformly administer the requirements of the ACA. That claim is discredited by the Government’s advocacy in other church plan cases in which it has argued that plaintiffs lack standing because self-certification will not necessarily result in the delivery of contraceptive products and services.....

The Government’s interests in promoting public health and providing women with equal access to health care also cannot be compelling because the contraceptive mandate does not apply to the insurance plans of millions of women in this country.... Grandfathered health plans, small businesses and religious employers are all exempt from the contraceptive mandate....

Finally the court concluded that the provision barring non-profits from seeking to influence the third party administrator's decision to provide contraceptive services is a presumptively invalid, content-based restriction on speech. Daily Report covers the decision.

NYC Transit Authority Must Pay $187,000+ In Plaintiffs' Attorneys Fees In Religious Discrimination Suit

In Small v. New York City Transit Authority, 2014 U.S. Dist. LEXIS 39582 (ED NY, March 25, 2014), a New York federal district court ordered the New York City Transit Authority to pay $187,570 in attorneys fees and $1450 in costs to two Muslim women who has sued the Transit Authority for religious and gender discrimination. In the lawsuit:

Plaintiffs alleged that defendant removed them from passenger service as bus operators because they wore Muslim head coverings called khimars and refused to wear a hat to cover their khimars.

The suits, after being consolidated with 3 others raising similar claims on behalf of Muslim and Sikh drivers, were settled, granting damages, a new policy on wearing khimars and return of plaintiffs to their jobs.

Ecclesiastical Abstention Doctrine Leads To Dismissal of Suit Over Church's Board

In Ivanov v. Notzkov, 2014 Ill. App. Unpub. LEXIS 577 (IL App., March 25, 2014), an Illinois Court of Appeals affirmed the trial court's reliance on the ecclesiastical abstention doctrine in dismissing a lawsuit between two factions of St. John of Rila Bulgarian Eastern Orthodox Church. The court refused to order a membership meeting to elect a new board, relying on the trial court's findings that St. John's is governed by the Bulgarian Eastern Orthodox Church which gave the parish priest and archbishop authority to determine who are members in good standing that may vote in an election for the church's board. The trial court had concluded that passing on plaintiffs' claim that the clergy did not have the power to appoint members to the board of trustees would require it to decide matters of religious doctrine and polity.

Wednesday, March 26, 2014

Former Scientologist Sues Church For Return of Funds

Courthouse News Service reported yesterday on a lawsuit filed recently in a California state trial court against the Church of Scientology and a number of its affiliates. Plaintiff Vance Woodward, an attorney, seeks return of $200,000 he paid for "auditing" courses he never received, as well as punitive damages. He contends that the Church took thousands of dollars from him and others through claims that Scientology would bestow superhuman powers on them. In total he turned over $600,000 to the church, $200,000 of which went for allegedly shoddy courses that were useless or harmful. He claims the Church obtained his funds through psychological manipulation and abuse.

Community College Student Preacher Challenges Campus Speaker Rules

The Hampton Roads (VA) Daily Press reported yesterday on a lawsuit filed earlier this month by a Christian student against the board of the Virginia Community College System, the Hampton, Virginia-based Thomas Nelson Community College and various college officials. The complaint (full text) in Parks v. Members of the State Board of the Virginia Community College System, (ED VA, filed 3/13/2014), challenges the constitutionality of college rules that allow students to speak in open, outdoor areas of campus only if they are members of student organizations, and then only if they register their activity 4 days in advance. Plaintiff, Christian Parks, was stopped after he began preaching in an open courtyard area on campus. The suit claims that the campus speaker rules violate the free speech, free exercise and due process clauses of the Constitution.

Tennessee Legislature Passes Student Religious Viewpoints Antidiscrimination Act

On March 24, the Tennessee General Assembly gave final passage to HB 1547 as amended, the Religious Viewpoints Antidiscrimination Act. The bill, which now goes to the governor for signature, requires schools to treat student voluntary expression of a religious viewpoint on an otherwise permissible subject the same as secular viewpoints are treated. Schools must adopt a policy to prevent discrimination against religious viewpoints where students are chosen to speak at a school event. Students must be permitted to express their written beliefs about religion in homework and classwork, and may not be penalized or rewarded because of the religious content. Students must be allowed to sponsor religious student clubs and activities to the same extent as students are allowed to sponsor secular clubs and activities. The bill passed the House by a vote of 90-2, and passed the Senate by a vote of 32-0. The Advocate reports that the ACLU is urging Gov. Haslam to veto the bill.

California Enacts Special Exemption To Allow Abbot To Be Buried On Monastery Grounds

In California, Gov. Jerry Brown yesterday signed SB 124 which grants a special exemption to allow Abbot Theodor Micka, a co-founder of Holy Cross Monastery, to be buried on the monastery’s grounds. (Press release from Sen. Ellen Corbett.) Holy Cross is the only Orthodox Christian monastery in the San Francisco Bay Area. As reported by the San Francisco Chronicle, 75-year old Micka, now seriously ill, has lived at the monastery for nearly 35 years, and one of his last wishes was to be buried there. The special exemption was needed because state law only allows burial permits to be issued for burial in a cemetery. [Thanks to James Sonne for the lead.]

Tuesday, March 25, 2014

Transcript and Summaries of Hobby Lobby Arguments In Supreme Court Today

The full transcript of the oral arguments earlier today in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius is now available from the Supreme Court's website. Extensive reports on the oral arguments are available from Lyle Denniston (SCOTUS Blog) and the Washington Post,

UPDATE: Here is the audio of the oral arguments.