Recent Articles and Book of Interest

From SSRN:

• Patrick Testa & Walter E. Block, Libertarianism and Circumcision, (Int J Health Policy Manag 3: 33-40, 2014).
• RonNell Andersen Jones, Press Definition and the Religion Analogy, (Harvard Law Review Forum, Forthcoming).
• Hershey H. Friedman, Miriam Gerstein & Paul Fenster, American Exceptionalism or Declinism: Lessons in Leadership and Ethics from the Twelve ‘Minor’ Prophets, (July 1, 2014).
• Toni M. Massaro, Nuts and Seeds: Mitigating Third-Party Harms of Religious Exemptions, Post-Hobby Lobby, (92 Denver University Law Review ___ (2015, Forthcoming)).
• Ira C. Lupu, Hobby Lobby and the Dubious Enterprise of Religious Exemptions, (Harvard Journal of Law and Gender, Vol. 38, No. 1, 2015, Forthcoming in Symposium, Religious Accommodation in the Age of Civil Rights).
• Susannah William Pollvogt, Brief of Amicus Curiae Susannah W. Pollvogt in Henry v. Himes (6th Cir.), (July 18, 2014).
• John D. Inazu, More is More: Strengthening Free Exercise, Speech, and Association, (Minnesota Law Review, Forthcoming).

From SmartCILP:

• Ihsan Ali Alkhatib, Shariah Law and American Family Courts: Judicial Inconsistency on the Talaq and Mahr Issues in Wayne County, Michigan, 14 Journal of Law In Society 83-105 (2013).
• Scott W. Gaylord, For-Profit Corporations, Free Exercise, and the HHS Mandate, 91 Washington University Law Review 589-657 (2014).

Recent Book:

• Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People, (Wm. B. Eerdmans Publishing, Aug., 2014).

Ruling Requiring Change of Use Permit For Meditation Center Upheld By Court

In  MAUM Meditation House of Truth v. Lake County, Illinois, (ND IL, July 16, 2014), an Illinois federal district court dismissed free exercise, free speech, equal protection and due process challenges to a decision by zoning authorities that a "change of use" permit is necessary to use a residence also as a meditation center. The court held first that plaintiffs must exhaust administrative remedies by seeking court review of a zoning board of appeals decision. In addition, the court concluded that plaintiffs cannot succeed on any of their substantive challenges.

Recent Prisoner Free Exercise Cases

In Partlow v. CDCR, 2014 U.S. Dist. LEXIS 94066  and Stamps v. CDCR, 2014 U.S. Dist. LEXIS 94069  (ED CA, July 10, 2014), a California federal magistrate judge dismissed with leave to amend a complaint that Asatru/ Odonic inmates were denied access to the chapel and outdoor worship space and denied religious items.

In Stepler v. Warden, Hocking Correctional Facility, 2014 U.S. Dist. LEXIS 94453 (SD OH, July 10, 2014), an Ohio federal magistrate judge recommended dismissing a Jewish inmate's complaint that he was not provided a room for religious services and not provided kosher meals with enough calories.  UPDATE: The court adopted the magistrate's recommendation at 2014 U.S. Dist. LEXIS 117120 (Aug. 21, 2014).

In Morgan v. City of New York, 2014 U.S. Dist. LEXIS 94693 (ED NY, July 10, 2014), a New York federal district court permitted plaintiff, a Rastafarian, to move ahead with his claim that his free exercise rights were infringed when his turban was removed at a police precinct after he was arrested.

In Martinez v. Vondewigelo, 2014 U.S. Dist. LEXIS 95005 (WD KY, July 14, 2014), a Kentucky federal district court dismissed an inmate's complaint that he has been denied access to religious materials in Spanish.

In King v. Bosenko, 2014 U.S. Dist. LEXIS 95649 (ED CA, July 11, 2014), a California federal magistrate judge permitted an inmate to move ahead with his claim that his Buddhist beliefs require a vegetarian diet which he was wrongfully denied.

In Dotson v. Shelby County, 2014 U.S. Dist. LEXIS 95953 (WD TN, July 15, 2014), a Tennessee federal district court permitted an inmate to move ahead with his complaint that he did not receive a halal diet.  The court found that his claim fell within the "imminent danger" exception to the disqualification of three-strike prisoner suits filed in forma pauperis. The court dismissed plaintiff's claim that disposable razors had been replaced by electric clippers.

In Sangraal v. Godinez, 2014 U.S. Dist. LEXIS 96056 (SD IL, July 14, 2014), an Illinois federal district court permitted a Pagan inmate to proceed with his complaint that the pentacle as a religious symbol was banned; use of tarot cards to practice divination was restricted; religious literature was selectively screened and he was subjected to overtly Christian messages.

In Bell v. Kennedy, 2014 U.S. Dist. LEXIS 96115 (ED AR, July 15, 2014), an Arkansas federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 96110, June 18, 2014) and denied a preliminary injunction against enforcing grooming regulations against a Rastafarian who adheres to the Nazarite Vow.

Federal Agencies Provide Disclosure Guidance For Companies Relying On Hobby Lobby Decision

The Department of Labor on Thursday posted an addition to Frequently Asked Questions to provide post-Hobby Lobby ERISA guidance from relevant federal agencies. For closely-held companies that terminate contraceptive coverage mid-plan year in reliance on the Hobby Lobby decision:

if an ERISA plan excludes all or a subset of contraceptive services from coverage under its group health plan, the plan's SPD [Summary Plan Description] must describe the extent of the limitation or exclusion of coverage. For plans that reduce or eliminate coverage of contraceptive services after having provided such coverage, expedited disclosure requirements for material reductions in covered services or benefits apply... which generally require disclosure not later than 60 days after the date of adoption of a modification or change.... Other disclosure requirements may apply, for example, under State insurance law applicable to health insurance issuers.

Remaining Christians Flee Iraqi City of Mosul After Decree By ISIS

BBC News, AP and the New York Times reported Friday that almost all Christians have left the Iraqi city of Mosul after a statement from the radical group Islamic State in Iraq and the Levant was read at the city's mosques. The statement gave Christians the choice of conversion, paying a traditional fee for protection (jizya) or death, with a deadline of noon Saturday.  The statement said in part:

We offer them three choices: Islam; the dhimma contract - involving payment of jizya; if they refuse this they will have nothing but the sword,

FFRF and IRS Settle Suit On Non-Enforcement of 501(c)(3) Against Churches

The Freedom From Religion Foundation announced Thursday that it has reached a settlement agreement with the Internal Revenue Service in Freedom From Religion Foundation v. Koskinen, a suit (links to pleadings) challenging the IRS's alleged non-enforcement against churches and religious organizations of the Section 501(c)(3) ban on political activity by non-profits. (See prior related posting.)  According to FFRF:

A prior lawsuit in 2009 required the IRS to designate an appropriate high-ranking official to initiate church tax examinations, but it had apparently failed to do so. 

The IRS has now resolved the signature authority issue necessary to initiate church examinations. The IRS also has adopted procedures for reviewing, evaluating and determining whether to initiate church investigations. While the IRS retains “prosecutorial” discretion with regard to any individual case, the IRS no longer has a blanket policy or practice of non-enforcement of political activity restrictions as to churches.

Church audits will not begin immediately because the IRS now has a broader moratorium in place on investigation of any tax-exempt organizations because of the Congressional investigation of its alleged targeting of conservative groups for adverse treatment.

A Ruling And Another Suit On Catholic Hospital Pension Plans As "Church Plans"

As reported by BNA Daily Report for Executives [subscription required], another decision has been handed down in a series of cases filed over the last 18 months challenging the assertion by a number of Catholic health care companies that their pension plans qualify as "church plans," and are thus exempt from the funding and other requirements of ERISA.  In Medina v. Catholic Health Initiatives, (D CO, July 9, 2014), a Colorado federal magistrate judge recommended entering a declaratory judgment finding that the plan is not a church plan. Refusing to defer to the position taken by the IRS in a 2002 Private Letter Ruling, the magistrate judge followed the lead of two out of three other courts that have ruled on the issue and held that to qualify as a church plan, the plan must be established by a church or association of churches, and not merely by a church-affiliated organization. (See prior related posting.)

Meanwhile one more similar challenge has been filed, bringing the total number of cases pending or decided to 8.   The complaint (full text) in Lann v. Trinity Health Corp., (D MD, filed 7/11/2014), not only claims that the health care organization's plan does not qualify as a church plan, but argues that if it does, the exemption in ERISA for church plans violates the Establishment Clause.

Kyrgyzstan Refuses To License Bishop of Russian Orthodox Church

Forum 18 reports that earlier this week Kyrgyzstan's State Commission for Religious Affairs refused registration as missionary to Bishop Feodosy, the head of the Russian Orthodox Church in Kyrgyzstan.  This prevents the Bishop from working as a religious worker in the country. According to the U.S. State Department's latest International Religious Freedom Report, the Kyrgyz Republic is 83% Sunni Muslim; 15% is Christian (half of which identifies as Russian Orthodox).

State Trial Court Voids Florida's Ban On Same-Sex Marriages; Appeal Stays Decision

In Huntsman v. Heavlin,(FL Cir. Ct., July 17, 2014), a Florida state trial court judge enjoined the clerk of Monroe County, Florida from enforcing the state's ban on same-sex marriages. Finding that the ban violate's the 14th Amendment's due process and equal protection clauses, the court ordered the county clerk to issue marriage licenses to plaintiffs and other similarly-situated same-sex couples. According to the Washington Blade, the judge's order is automatically stayed because the Florida Attorney General quickly filed a notice of appeal.

Scientology Official Need Not Give Deposition In Harassment Suit

In In re David Miscavige, (TX App., July 17, 2014), a Texas appellate court ordered a trial court to withdraw its order compelling David Miscavige, head of the Church of Scientology's Religious Technology Center, to give his deposition in a suit filed by the wife of a former Scientology member.  Plaintiff Monique Rathbun claimed that she and her husband Mark were subjected to three years of harassment after Mark spoke to national media about Miscavige's alleged misconduct. In ruling for Miscavige, the court applied the so-called "apex deposition" doctrine that is designed to protect high-ranking corporate officials from burdensome, expensive, and harassing discovery. San Antonio Express-News reports on the decision.

Court In India Says Enforcing Wildlife Protection Against Cobra Worship Is Constitutional

According to Pune Mirror, in India yesterday a 2-judge panel of the Bombay High Court rejected claims by residents of a village in Sangli that their constitutional right to freely practice their religion is being violated by enforcing the Wildlife Protection Act, 1972 against them.  The villagers are known for observing Nag Panchami by capturing wild King Cobras in the forest, worshiping them and then releasing them back into the wild.  A public interest lawsuit filed last year has been attempting to stop the practice. A 2-judge bench of the Bombay High Court rejected villagers free exercise assertions, saying:

The capture and worship of live snakes for worship is not an essential part of the Hindu religion. Capturing live snakes and later releasing them back into the wild could cause them harm, which is against the law. Under the Constitution, citizens are duty-bound to protect these creatures.

Suit Against Catholic Diocese By Fired Lesbian Food Bank Manager Alleges Fraud

Kansas City Star reported yesterday on a lawsuit filed by a Kansas City (MO) woman who says she was fired from her position as a pastoral associate managing a food bank for St. Francis Xavier Catholic parish after her same-sex marital relationship was mentioned in a newspaper article.  Plaintiff Colleen Simon says that priests at the parish knew of her marriage to Rev. Donna Simon, a Lutheran minister, and had no problem with it. However it is alleged that when the relationship was publicly mentioned in an article about an area of Kansas City, Bishop Robert Finn ordered her fired.  The state court lawsuit against the Diocese and Finn claims that the diocese fraudulently encouraged her to take the food bank position knowing that it had no intention of keeping its commitments to her.

After Family's Lawsuit Is Dropped, Sudanese Christian Woman May Now Be Able To Leave For U.S.

In Sudan, Mariam Yahya Ibrahim may finally be able to leave with her family for the United States.  Ibrahim, a practicing Christian, was initially sentenced to death for apostasy, but her death sentence was lifted by an appeals court. (See prior posting.)  Then her attempt to leave the country was stymied when first the government refused to recognize her travel documents from the embassy of South Sudan, and then her father's family filed suit in the Khartoum Religious Court to establish that Ibrahim is a Muslim.  However Reuters reports today that the lawsuit has been dropped without explanation. Ibrahim along with her husband (who is an American citizen) and her two children have been staying in the U.S. embassy since her release from custody. (See prior posting.)

Suit Challenges Clinic's Refusal To Hire Nurse Who Would Not Prescribe Hormonal Birth Control

Care 2 reported yesterday on a lawsuit filed last month which it describes as "the next phase of the birth control war."  Sara Hellwege, who has just graduated nursing school, was refused an interview for a nurse-midwife position at a a women's health center that receives federal funds when she indicated that for religious reasons she would not prescribe hormonal contraceptives to women for birth control purposes.  The complaint (full text) in Hellwege v. Tampa Family Health Centers, (MD FL, filed 6/27/2014), contends that this refusal violates 42 USC 300a-7(d) which provides that no person may be required to participate in providing health services that violate the person's religious or moral beliefs. It also contends that it violates Florida statutes which are designed to protect health care workers' conscientious objections to contraception and abortion. An ADF press release reports on the case.

"Ministerial Exception" Doctrine Leads To Denial of Pension Claim By Removed Priest

In In re Catholic Diocese of Wilmington, (DE Bkrptcy., July 16, 2014), the Bankruptcy Court for the District of Delaware applied the "ministerial exception" doctrine to sustain the Wilmington Diocese's objection to a pension claim filed in the Diocese's reorganization by a priest who has been credibly charged with sexual abuse. The priest, Kenneth Martin, was one of nine priests removed by the bishop from ministerial duties for substantiated claims of abuse against minors. Martin then filed a Canon Law action before the Vatican to obtain a pension and sustenance. The bankruptcy court however rejected Martin's claim for payment, saying in part:

Martin emphasizes that his claim for pension and sustenance is premised upon an anticipated ruling in a Canonical action which will resolve his proper allotted remuneration and overall standing within the Diocese. Yet while the Debtor may be under a separate Canonical obligation to pay sustenance, the Court is barred, by the ministerial exception, from forcing Martin's reinstatement into ministry, or awarding any form of relief that would come at the Debtor's expense on account of his removal.

(See prior related posting.)

President Hosts Annual White House Iftar Dinner

On Monday night, President Obama hosted the annual White House Iftar dinner in honor of Ramadan.  In his remarks (full text) he said in part:

Tonight we reaffirm a simple truth.  Fundamental to the character of our country is our freedom of religion -- the right to practice our faith as we choose, to change our faith if we choose, or to practice no faith at all and to do all this free from fear of.  All of us are deserving of an equal opportunity to thrive -- no matter who we are, what we look like, what we believe, or how we pray.  And all of us have an obligation to do our part -- to help others overcome barriers, to reverse the injustice of inequality and to help more of our fellow citizens share in the promise of America. 

The President then made specific mention of three guests at the dinner who began projects to help young people succeed.

The White House also released a list of members of Congress, local officials and members of the diplomatic corps who would be attending the dinner.

UPDATE: According to July 17 Haaretz, this year's White House Iftar dinner was unusually controversial. The presence of Israel's ambassador along with those from other countries with large Muslim populations, his Tweet from the dinner, and President Obama's remarks about Israel rankled some Muslims.

In Kenya, Catholic Bishops Accused of Evicting Restaurant Because It Is Run By Muslims

Standard Digital reported yesterday on a lawsuit filed in Narobi, Kenya against the Kenya Conference of Catholic Bishops.  The suit alleges that last December plaintiff, the Alyusra Restaurant, signed a 6-year lease on space in a building owned by the bishops' organization, but that the restaurant owner Baakai Maalim was violently ejected and the premises padlocked when the bishops learned that the restaurant was being run by Somali Muslims. Plaintiff's petition contends that the ejection constitutes "a brazen violation of the Constitution by the Catholic bishops who should be at the forefront of preaching religious tolerance...."

5th Circuit: Designs of Specialty Plates Are Private Speech Protected By 1st Amendment; Cert. Filed On Similar Issue

In Texas Division, Sons of Confederate Veterans, Inc. v. Vandergriff, (5th Cir., July 14, 2014), the U.S. 5th Circuit Court of Appeals held, in a 2-1 decision, that messages on state specialty license plates are private speech, not government speech.  The majority went on to conclude that the Texas Department of Motor Vehicles Board engaged in unconstitutional viewpoint discrimination when, because many members of the public found the design offensive, it rejected a vanity plate design that included the Confederate flag. The New Orleans Times-Picayune reports on the decision.

Meanwhile, ADF announced that a petition for certiorari (full text) was filed with the U.S. Supreme Court last Friday in Berger v. American Civil Liberties Union of North Carolina. In the case, the U.S. 4th Circuit Court of Appeals, finding that messages on vanity plates are private speech, held that North Carolina engaged in unconstitutional viewpoint discrimination when it specifically authorized a "Choose Life" specialty license plate and refused to issue a pro-choice specialty plate. (See prior posting.)

Religious- Civil Rights Groups Urge Obama To Exclude Religious Exemption In Planned LGBT Order

Following on a similar letter from constitutional law scholars earlier this week, yesterday a coalition of 69 religious and civil rights organizations sent a letter (full text) to President Obama urging him to reject calls for a religious exemption in his planned executive order to bar LGBT discrimination by federal contractors. The letter argues, in part:

Religious freedom is one of our most cherished values, a fundamental and defining feature of our national character. It guarantees us the freedom to hold any belief we choose and the right to act on our religious beliefs within certain limits. It does not, however, provide organizations the right to discriminate using taxpayer dollars. When a religiously affiliated organization makes the decision to request a taxpayer-funded contract with the federal government, it must play by the same rules as every other federal contractor.

[Thanks to Michael Lieberman for the lead.] 

IRS Adopts New Short Form For Applications By Small Charities

The Internal Revenue Service announced on July 1 that it has adopted a new Form 1023-EZ that will streamline the process of applying for 501(c)(3) status for small non-profit and religious groups. The new form is only 3 pages long, instead of the 26-page long form.  It will be available to most charities with gross receipts of $50,000 or less and assets of $250,000 or less. The new form must be filed electronically. In an interview with Time earlier this week, Internal Revenue Service Commissioner John Koskinen says the change will allow the IRS to clear up the 66,000-application backlog that it faces.