Cert. Petition Filed In Challenge To Navy Chaplain Corps Procedures

The Rutherford Institute announced yesterday that it has filed a petition for certiorari (full text) in In re Navy Chaplaincy. In the long-running case, the D.C. Circuit Court of Appeals denied a preliminary injunction in a challenge to the Navy's procedures for promoting members of the Navy Chaplains Corps.  Petitioners argue that the current procedures favor Catholics and liturgical Protestants over various non-liturgical denominations.

Supreme Court Denies Stay In Oregon Same-Sex Marriage Case

In May, an Oregon federal district court struck down Oregon's ban on same-sex marriage. (See prior posting.) The state declined to appeal, but the National Organization for Marriage (NOM) has been seeking to intervene as a plaintiff so it can appeal the decision.  So far it has been unsuccessful.  Yesterday the U.S. Supreme Court, in a one-sentence order, denied NOM's request for a stay of the district court's order while NOM appeals the district court's denial of its motion to intervene. All the pleadings in the complex procedural battle by NOM are here. The Oregonian reports on the Supreme Court's action, as does SCOTUSblog.

Israel's Justice Minister Officiates At Same-Sex Jewish Wedding; Marriage Not Legally Recognized

In Israel yesterday, Justice Minister Tzipi Livni officiated at a same-sex wedding ceremony, even though the marriage will not be recognized by the Israeli government.  Jerusalem Post reports that Livni conducted the ceremony for Tsach Sa'ar, a former aide to a member of the Knesset, and Guy Arad, an attorney.  The ceremony used a traditional huppah (wedding canopy), and the traditional breaking of a glass by the groom used two glasses, one for each man to break. Posting pictures on her Facebook page, Livni wrote that the ceremony was not intended to be a provocation against Judaism, but instead respected Jewish tradition.  She added, "In our eyes, Judaism is open, accepting and respects all people who were created in God's image."

Baptist, Jewish Groups Join As Plaintiffs In Challenge To North Carolina Same-Sex Marriage Ban

The United Church of Christ announced today that two national religious bodies and a number of individual clergy have joined as plaintiffs in its lawsuit that contends that North Carolina law makes it a criminal offense for a member of the clergy to conduct a same-sex marriage ceremony.  This, they argue, infringes the free exercise and expressive associational rights of clergy whose religious teachings and beliefs embrace same-sex marriage.  The national groups joining the lawsuit are the Alliance of Baptists and the Central Conference of American Rabbis.

In Modified Opinion, Court Dismisses Some Diocesan Contraceptive Coverage Claims

In Roman Catholic Archdiocese of Atlanta v. Sebelius, (ND GA, May 30, 2014), a Georgia federal district court in part granted the government's motion to reconsider its March 26 decision.  That decision, invoking RFRA, had  permanently enjoined the government from requiring Catholic Education of North Georgia and Atlanta Catholic Charities to comply with the self-certification requirements to opt out of contraceptive coverage.  In that decision, the court refused on mootness grounds to grant summary judgment to the Atlanta Archdiocese and the Savannah Diocese because they are totally exempt from the contraceptive coverage mandate.  In its May 30 opinion, the court completely dismissed these claims by the Diocesan plaintiffs, as well as dismissing the non-RFRA claims by all the plaintiffs.  The court however refused to reconsider its conclusion that the health plans involved are "church plans" under ERISA.

7th Circuit Hears Oral Arguments On Several Milwaukee Archdiocese Bankruptcy Issues

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in two cases relating to the Archdiocese of Milwaukee. The first is Official Committee of Unsecured Creditors v. Listecki (audio of oral argument). It involves a number of complex legal issues growing out of a trial court decision that $50 million in a cemetery perpetual care trust fund is unavailable to creditors, including abuse victims, in the Archdiocese's bankruptcy reorganization. (See prior posting.) Among other issues is the question of whether RFRA can be raised as a defense to action taken by a Creditors' Committee in bankruptcy.  The case on appeal also involves the refusal of the trial court judge to recuse himself in the case. (See prior posting.)

The second case is Doe v. Archdiocese of Milwaukee (audio of oral argument). It involves the question of whether the bankruptcy court was correct in dismissing the claim of a sexual abuse victim who had signed a settlement agreement with the Archdiocese after mediation.  The victim contends that he was fraudulently induced to sign the agreement.  Milwaukee Journal Sentinel reports on yesterday's arguments.

Supreme Court Denies Review In Murfreesboro Mosque Case

The U.S. Supreme Court today denied certiorari in Fisher v. Rutherford County Regional Planning Commission, (Docket No. 13-1214, cert. denied, 6/2/2014). (Order List).  In the case, a Tennessee Court of Appeals reversed a trial court's holding that Rutherford County had given inadequate public notice of a meeting which approved the site plan for the controversial Murfreesboro mosque. (See prior posting.) The Tennessee Supreme Court denied review. The first portion of the planned Islamic center was completed and occupied in August 2012. Today's Tennessean has more details.

Government Says There Is No Controversy In Unusual Contraceptive Mandate Case

An unusual lawsuit involving the Affordable Care Act contraceptive coverage mandate was filed in April by Media Research Center (MRC) with little notice given to it, at least until a May 15 press release. MRC is the parent of CNSNews. In dozens of other cases, religious non-profits have sued objecting to the requirement that they complete the self-certification form to opt out that will lead to contraceptive coverage being furnished directly by the insurer or third-party administrator. The complaint (full text) in Media Research Center v. Sebelius, (ED VA, April 11, 2014), on the other hand, alleges that plaintiff has filed the self-certification form and has sought assurance from the government that it qualifies as an "eligible organization" entitled to avail itself of the opt out. It alleges that the government has refused to provide such assurance, and asks the court to issue a declaratory judgment that Media Research Center is an "eligible organization".

Then in a second count, it seeks an injunction against enforcement of the mandate and a declaratory judgement that the regulations allowing religious non-profits to opt out violates the Establishment Clause:

89. Determining which entities qualify as "religious employers" or "eligible organizations" requires the Government to determine (1) whether the organization truly seeks to inculcate "religious values," (2) whether an objection to the Contraception Mandate is truly "religious", and (3) whether an entity truly holds itself out as a "religious" organization.

90. The Contraception Mandate thus makes the Government the arbiter of which organizations are, or are not, sufficiently "religious" to qualify for exceptions to the Contraception mandate.

91. This entails an unconstitutionally invasive inquiry into an organization's religious purpose, beliefs, and practices.

92. Furthermore, the regulations are framed to value the activities of traditional religious groups (e.g, churches, ministries, and proselytizing organizations) more highly than non-traditional religious organizations (like MRC, which defends traditional American Judeo-Christian beliefs by exposing the hypocrisies and fallacies of media attacks on those beliefs).

The government in its Memorandum In Opposition (May 23, 2014) (full text) argues that there is no controversy present:

There is no dispute that MRC has determined that it is eligible for an accommodation and has executed the self-certification. There is also no dispute that MRC has now done everything that the regulations require in order to avail itself of an accommodation. Defendants have not disputed MRC’s status as an eligible organization, and have not suggested that they have any intent or reason to do so in the future. In fact, there is no dispute of any kind relevant to the instant motion....

Qualification for an accommodation depends on a self-certification—it does not require the government to make any determination at all. Nothing in the regulations or elsewhere suggests that defendants will undertake any sort of inquiry regarding MRC’s determination. Indeed, defendants refused to make a definitive pronouncement on MRC’s eligibility for an accommodation in this case because the government cannot possibly be in the business of making the type of individualized determination that MRC seeks for every potentially eligible organization. To agree to do so here would be to open the floodgates for such requests, which could quickly overwhelm defendants’ resources.

Recent Articles of Interest

From SSRN:

• Jeffrey A. Redding, Marriage ≠ Marriage: Querying the Relevance of Equality to the Interstate Recognition of Same-Sex Relationships, (University of Miami Law Review, Forthcoming).
• D. Brian Dennison, Faith Frieda Letacie & Heather M. Pate, Confronting Child Sacrifice in Uganda: A Multi-Layered View, (Kabarak University Law Review, Forthcoming).
• Kevin J. Murphy, Administering the Ministerial Exception Post-Hosanna-Tabor: Why Contract Claims Should Not Be Barred, (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 28, No. 1, 2014).
• Brian D. Galle, How Do Nonprofit Firms Respond to Tax Policy?, (May 29, 2014).

From SmartCILP:

• Elizabeth A. Clark, Liberalism In Decline: Legislative Trends Limiting Religious Freedom In Russia and Central Asia, 22 Transnational Law & Contemporary Problems 297-342 (2013).

Fired Principal of Seventh Day Adventist School Can Pursue Her Claim

In Galetti v. Reeve, (NM App., May 28, 2014), the New Mexico Court of Appeals held that the church autonomy doctrine does not require dismissal at this time of a damage claim by a former principal and teacher at a Seventh Day Adventist school who was fired from her position. Plaintiff claims that she was harassed by by her supervisor and was fired in retaliation for filling a complaint about it. The court held that the trial court erred in dismissing her breach of contract, retaliatory discharge, intentional interference with contract, civil conspiracy, and defamation claims, saying:

The First Amendment does not immunize every legal claim against a religious institution or its members, but only those claims that are rooted in religious belief.

It added that if later it becomes apparent that any of the claims turn on matters of doctrine or church governance, summary judgment may be proper then.

Colorado Civil Rights Commission Affirms Initial Decision In Gay Wedding Cake Case

According to the Denver Post, the Colorado Civil Rights Commission on Friday affirmed the Initial Decision of an administrative law judge in Craig v. Masterpiece Cake Shop. The initial decision rejected free speech and free exercise claims, and held that a bakery and its owner illegally discriminated against a same-sex couple on the basis of sexual orientation in refusing to sell them a wedding cake. (See prior posting.)  To prevent future discrimination, in Friday's decision the Commission required bakery owner Jack Phillips to submit quarterly reports for two years on steps taken to change company policies and train employees. The bakery must also disclose the names of any clients who are turned away. [Thanks to Tom Rutledge for the lead.]

Recent Prisoner Free Exercise Cases

In Funtanilla v. Williams, 2014 U.S. Dist. LEXIS 71354 (ED CA, May 22, 2014), a California federal magistrate judge allowed a Seventh Day Adventist inmate housed at a substance abuse treatment center to move forward against most of the defendants with his complaint that he was not permitted to place a copy of the Ten Commandments above his door, get his meals for the Sabbath ahead of time or delivered, and attend worship services.

In Rivera v. Michigan Department of Corrections, 2014 U.S. Dist. LEXIS 72325 (WD MI, May 28, 2014), a Michigan federal district court permitted Moorish Science inmate to proceed against certain of the defendants for an injunction to require recognition of  Moorish Science Temple of America-1928 as a separate religious group from Moorish Science Temple of America, Inc., (1934 Portion).

In Smart v. Aramark Inc., 2014 U.S. Dist. LEXIS 73106 (D NJ, May 29, 2014), a New Jersey federal district court dismissed an inmate’s complaint that prison rules requiring inmates who work in the kitchen to shave their facial hair discriminates against Muslim, Jewish and Christian inmates who wear beards for religious reasons.

In Free v. Ellis, 2014 U.S. Dist. LEXIS 73118 (D NJ, May 29, 2014), a New Jersey federal district court dismissed without prejudice an inmate’s claim that he was not allowed to attend religious services for a 15-month period.

New Teacher Contracts In Cincinnati Archdiocese Create Controversy

CNN reports today that controversy surrounds the new teacher contracts that must be signed by all teachers in the schools of the Archdiocese of Cincinnati. Going beyond the general language of the past that requires teachers to adhere to Catholic doctrine, the new contracts spell out some specifics. They bar cohabitation or sex outside of marriage, using in-vitro fertilization, living a gay "lifestyle," or publicly supporting any of these.  The new contracts also add the title "minister" to all teachers, regardless of subjects taught-- presumably to allow the Archdiocese to invoke the ministerial exception doctrine if sued for employment discrimination. Cincinnati Catholic Schools Superintendent Dr. Jim Rigg  says the contracts do not add any new requirements; they just explain in clear language some of the principles of the Church. Teacher Roger Rosen commented:

Jesus always acted out of love. Never out of fear, and we're all being asked to act out of fear because the lawyers have taken over.

Court Lets Fired Catholic School Administrator Continue Discrimination Suit

LifeSite News reports that a Washington state trial court judge last week refused to dismiss an employment discrimination lawsuit against Seattle's Eastside Catholic High School filed by Mark Zmuda, its former vice principal. Zmuda was forced to resign after he married his same-sex partner. Zmuda claims that the school violated its own anti-discrimination policy, while the school says Zmuda breached the morality clause in his contract that requires him to publicly uphold the teachings of the Catholic faith.  The school had given Zmuda the option to divorce his spouse and enter a civil commitment ceremony if he wanted to keep his position.

The court rejected the school's argument that the 1st Amendment's freedom of religion protections deprived the court of jurisdiction over the dispute.  King County Superior Court Judge Catherine Shaffer wrote in part: "The Federal and Supreme Courts have made it clear that an employee can sue regardless of ministerial doctrine." Zmuda's suit alleges violation of Washington's law against discrimination, breach of implied contract, wrongful termination, violation of the consumer protection act, and tortious interference. (See prior related posting.)

Houston Passes Controversial Equal Rights Ordinance

As reported by CultureMap Houston, on Wednesday the Houston, Texas City Council by a vote of 11-6 passed the controversial Houston Equal Rights Ordinance (full text). The new law protects against discrimination in public accommodations, employment and housing on the basis of sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity or pregnancy. A provision that would have protected transgender persons in bathroom choice was removed after particularly strong objections from conservative and religious leaders.  Religious organizations are exempted from various provisions of the Ordinance. According to MSNBC, before passage of this ordinance, Houston was the largest U.S. city without local anti-discrimination laws.  Opponents of the measure are attempting to collect the needed 17,000 signatures to put repeal of the Ordinance on the ballot in November's election.

No Problem With School's Rejection of Tattooed Jesus Jumbotron Ad

In Little Pencil, LLC v. Lubbock Independent School District, (ND TX, May 29, 2014), a Texas federal district court rejected the free speech and free exercise claims by an organization that unsuccessfully sought to display a religious ad on a high school football field jumbotron. The ad depicted a tattooed Jesus and a website URL. The ad was part of a marketing concept using a new way to share the Bible's teachings.  The court, finding that the school had created a "limited public forum" in selling ad space, and that its rejection of plaintiff's ad was reasonable. First it implemented the school's broader policy against visible tattoos.  Second, the ad risked creating an Establishment Clause violation because it might be perceived as being endorsed by the school. The Lubbock Advance-Journal reports on the decision.

Top South African Judges Speak At Law and Religion Conference

IOL News and Ecumenical News report on a controversial speech by South Africa's Chief Justice Mogoeng Mogoeng at the University of Stellenbosch's second Annual African Law and Religion conference earlier this week. According to IOL:

Mogoeng decried the levels of maladministration, crime and corruption, and “the extremely low levels to which morality has degenerated… the dishonesty as well as the injustices that have permeated all facets of society - price-fixing and fronting included”.

These, he argued, “in my view would effectively be turned around significantly if religion were to be factored into the law-making process”.

Here is a video of his entire speech. Mogeng, a lay preacher in the Pentecostal Winners' Chapel, has been controversial since his appointment in 2011. (See prior posting.)

Former South African Constitutional Court Judge Albie Sachs also spoke at the Conference, emphasizing the need for different worldviews to co-exist.  Here is a video of his full speech.

House Holds Religious Freedom Hearing on "Countries of Particular Concern"

On May 22, the House Foreign Affairs Committee, Subcommittee on Africa, Global Health, Global Human Rights and International Organizations held a hearing on " Protecting Religious Freedom: U.S. Efforts to Hold Accountable Countries of Particular Concern." The committee's website has a video archive of the full hearing as well as transcripts of the statements of the four witnesses.

Another ACA Contraceptive Coverage Challenge Filed By Catholic Diocese

Suits challenging the Affordable Care Act contraceptive coverage mandate continue to be filed by religious non-profits.  The Catholic  Diocese of Greensburg, Pennsylvania announced that on Tuesday it filed suit in a Pennsylvania federal district court challenging the requirement that its Catholic Charities and Catholic elementary schools sign a self-certification form that triggers contraceptive coverage being provided by their health plan's third-party administrator. Pittsburgh Tribune reports on the case.

2nd Circuit OK's "In God We Trust" On Money

In Newdow v. Peterson, (2d Cir., May 28, 2014), the U.S. 2nd Circuit Court of Appeals rejected challenges to 31 U.S.C. §§ 5112(d)(1) and 5114(b), which require that the national motto "In God We Trust" be placed on all coins and currency. The court agreed with 4 other Circuits that the statutory provisions do not violate the Establishment Clause, Free Exercise Clause, or RFRA, saying in part:

As the Supreme Court has repeatedly indicated in dicta, the statutes at issue in this case have a secular purpose and neither advance nor inhibit religion.....

Appellants argue that ... using currency ... requires them “to bear on their persons . . . a statement that attributes to them personally a perceived falsehood that is the antithesis of the central tenant of their religious system.”... Appellants also contend that using money forces them to proselytize.... We respectfully disagree....  As the Supreme Court has previously indicated, the carrying of currency, which is fungible and not publicly displayed, does not implicate concerns that its bearer will be forced to proclaim a viewpoint contrary to his own.

RNS reports on the decision.