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.

Religious College That Expelled Transgender Student Not Covered By Unruh Act

In Cabading v. California Baptist University, (CA Super. Ct., July 11, 2014), a California trial court held that a private religious college did not violate California's Unruh Civil Rights Act when it expelled Domainlor Javier Cabading, a pre-operative male-to-female transgender person who had been admitted to the school on a merit scholarship. The University claimed Cabading committed fraud by applying for admission as a female. The court held that the private Southern Baptist school is not a "business establishment", and so is not covered by the state anti-discrimination law. However the school's ancillary programs that are open to the public-- its library, counseling center, and retail businesses such as restaurants operating on school property-- are "business establishments" covered by the Act. The court awarded plaintiff $4000 in damages for her exclusion from these programs. The Riverside County Press-Enterprise reports that the school is considering appealing the portion of the decision that went against it. MSNBC and Transgender Workplace Law & Diversity blog also report on the decision.

7th Circuit: Indiana Must Allow Secular Humanists To Solemnize Marriages

In Center For Inquiry, Inc. v. Marion Circuit Court Clerk, (7th Cir., July 14, 2014), the U.S. 7th Circuit Court of Appeals held that Indiana's statute specifying who may solemnize marriages unconstitutionally discriminates among religious and ethical beliefs.  It allows religious officials of various religious groups to perform marriages, but not equivalent officials of secular groups like humanist societies. Also, unlike some states, Indiana law does not give humanist officials the option of officiating by becoming notaries. The court instructed the district court to issue an injunction allowing certified secular humanist celebrants to solemnize marriages without risk of criminal penalty. Religion News Service reports on the decision.

Challenge To School's Policy On Distributing Materials Dismissed As Moot

In Freedom From Religion Foundation, Inc. v. Orange County School Board, (MD FL, July 3, 2014), a Florida federal district court dismissed as moot a complaint (see prior posting) that the Orange County, Florida school board refused to allow plaintiffs to distribute certain material critical of the Bible and religion under the school's limited public forum policy.  Subsequently the school board reversed its decision and allowed plaintiffs to distribute the disputed material; however plaintiffs failed to avail themselves of the opportunity to do so. Courthouse News Service reports on the decision.

Constitutional Law Profs Oppose Religious Exemption In Obama's Planned LGBT Non-Discrimination Executive Order

Yesterday 54 faculty members from top law schools around the country sent a letter (full text) to President Obama opposing the call earlier this month by faith leaders for a broad religious exemption in the President's planned executive order on LGBT discrimination by federal contractors. (See prior posting.) The law professors' joint letter reads in part:

As scholars of religious liberty and constitutional rights, we write to urge you to refrain from including religious exemption language in any executive order providing nondiscrimination guarantees for LGBT employees of federal contractors. Contrary to the counsel you have received from others, such an exemption is not required by the First Amendment's Free Exercise Clause, the Religious Freedom Restoration Act (RFRA), or accommodations of religious liberty in other federal non-discrimination laws, including Title VII. Indeed, the proposed exemption would be unprecedented. Including such a provision in newly expanded rights for LGBT employees of federal contractors would at once undermine workplace equity for LGBT employees, relegate LGBT protections to a lesser status than existing prohibitions against discrimination, and allow religious employers to create or maintain discriminatory workplaces with substantial public funding.

According to a press release, the scholars' letter was spearheaded by Columbia Law School's new Public Rights/ Private Conscience Project.

Town of Greece Board Will Hear Secular Invocation Tonight

While the U.S. Supreme Court's decision last month in Town of Greece v. Galloway validated the existing invocation policy of the New York town involved (see prior posting), in a sense things are changing in Greece.  According to Justice Kennedy's description of the town's policy:

[Town] leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. But nearly all of the congregations in town were Christian; and from 1999 to 2007, all of the participating ministers were too.

The American Humanist Association has announced that at tonight's Town Board meeting, for the first time a "secular invocation" will be delivered.  As reported last month by Religion News Service, tonight's invocation will be offered by Dan Courtney, a member of the Atheist Community of Rochester, NY, located nearby. Courtney says his invocation will stress that government needs to represent all the people regardless of religious belief. The American Humanist Society has compiled a list of individuals around the country available to deliver invocations that do not call on a "supernatural entity" for guidance.

Tunisian Authorities Closing Down Restaurants During Ramadan

Al-Monitor reported yesterday that in Tunisia, for the fourth year in a row police are conducting raids forcing restaurants to close down during Ramadan.  It is unclear what legal authority they have to take this action, though some are pointing to  a circular issued in 1981 by the Prime Minister and canceled two days later by the head of state.

French Court Suspends Municipal By-Law Banning Religious Symbols At Beach

In France, last Saturday a Versailles Administrative Court suspended, pending a final ruling on the merits, a by-law adopted by the town of Wissous that banned wearing of religious symbols on the town's beach. AFP reports that the prior week, Wissous Mayor Richard Trinquier, invoking the by-law, had turned away two mothers wearing hijabs (Muslim headscarves) who had brought their children to the beach. This led to an emergency court action being brought by the French government and an organization that combats Islamophobia, in which they argued that the by-law infringes the fundamental freedom of religious belief.  The mayor had claimed that the by-law protects France's commitment to secularism.

Ohio Enacts Released Time Program, Effective In September

This weekend, the Cleveland Plain Dealer carried op-ed columns supporting and opposing Ohio House Bill 171 (full text) which was signed into law by the governor last month. (Legis. status report.) The law, which will go into effect in September, allows school districts to approve "released time" programs during which students can be excused from school to attend a program of religious instruction elsewhere. High school students can earn up to two units of course credit for participation in a released time offering.  No public funds or school personnel may be used in the religious instruction.

Recent Articles of Interest

From SSRN:

• Steven H. Resnicoff, Circumcision Safety: A Case Study in the Failure of Leaderships, (Looking Forward, Vol. 1, No. 3, pp. 1-7, June 2014).
• Archana Mishra, Rights in Separate Property of Hindu Female – Challenge to Acquire a New Self , (June 20, 2014).
• Hendrik Gommer, The Biological Foundations of Global Ethics and Law, (Archives for Philosophy of Law and Social Philosophy (ARSP), 2014, Vol. 100, nr. 2, p. 151-175).
• Frederick Mark Gedicks, Religion, Meaning, Life, Truth, (San Diego Law Review, 2014, Forthcoming).
• Richard W. Garnett, Accommodation, Establishment, and Freedom of Religion, (67 Vand. L. Rev. En Banc 39 (2014)).
• Steve Sanders, Is the Full Faith and Credit Clause Still 'Irrelevant' to Same-Sex Marriage?: Toward a Reconsideration of the Conventional Wisdom, (Indiana Law Journal, Vol. 89, No. 1, 2014).
• Steve Sanders, Mini-DOMAs as Political Process Failures: The Case for Heightened Scrutiny of State Anti-Gay Marriage Amendments, (Northwestern University Law Review Online (June 2014)).

From SSRN (Islamic Law):

• Amir B. Izadyar & Feroza Ragnath, A New Perspective of Benevolent Loan, QARD Al-Hassan, Using Upfront Payment ‘Mesbah Point’, (International Journal of Economics 1:3, pp. 45-58, 2014).
• Jamhari Makruf, Jamhari & Iim Halimatussa'diyah, Shari’a and Regional Governance in Indonesia: A Study of Four Provinces, (Australian Journal of Asian Law, Vol. 15, No. 1, Article 4, 2014).

From SmartCILP:

• Mark Goldfeder, The Story of Jewish Polygamy, [Abstract], 26 Columbia Journal of Gender & Law 234-315 (2014).
• Peter T. Leeson, "God Damn": The Law and Economics of Monastic Malediction, 30 Journal of Law, Economics & Organization 193-216 (2014).
• Marin Lim, The Sanity of Faith: What Religious Fundamentalism Teaches About the Insanity Defense and the First Amendment, [Abstract], 17 New Criminal Law Review 252-311 (2014).

Recent Prisoner Free Exercise Cases

In Holland v. Goord, (2d Cir., July 10, 2014), the 2nd Circuit, reversing in part a district court's decision, held that ordering a Muslim inmate to drink water in violation of his Ramadan fast in order to provide a urine sample substantially burdened his free exercise rights.

In McCormack v. Reinke, 2014 U.S. Dist. LEXIS 91356 (D ID, July 2, 2014), an Idaho federal district court dismissed for failure to prosecute a Native American inmate's complaint regarding tearing down of the prison's sweat lodge and alleged retaliation for complaining that failure to provide wood for the sweat lodge violated a previous settlement agreement.

In Villapando v. CDCR, 2014 U.S. Dist. LEXIS 91965 (ED CA, July 3, 2014), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that a change in allowable religious property omitted certain items necessary for Native American religious practices.

In Hines v. Illinois Department of Corrections, 2014 U.S. Dist. LEXIS 92474 (SD IL, July 8, 2014), an Illinois federal district court permitted a Muslim inmate to proceed with various 1st Amendment, RLUIPA and 8th Amendment claims alleging that the vegetarian diet provided to him did not meet Halal requirements, and that he was retaliated against for complaining about non-halal turkey chili served to him.

In Mauwee v. Cox, 2014 U.S. Dist. LEXIS 93241 (D NV, July 9, 2014), a Nevada federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 93239, June 17, 2014) and dismissed a Native American inmate's complaint that a corrections officer desecrated his religious group's ceremonial deer antlers. Defendant mistakenly ordered the antlers to be blunted to 8 inches instead of the allowable 18 inches.

In Salas v. Gomez, 2014 U.S. Dist. LEXIS 93536 (ND CA, July 9, 2014), a California federal district court permitted a Jewish inmate to proceed with his complaint that his food has been inedible and does not meet kosher standards, and that he is being denied access to Jewish scriptures.

In Baumgarten v. Maryland Division of Corrections, 2014 U.S. Dist. LEXIS 93601 (D MD, July 10, 2014), a Maryland federal district court dismissed both for failure to exhaust administrative remedies and on the merits a claim by a Jewish inmate that he was denied kosher meals, and a corrections officer ripped the cover off his religious book.

In Irvin v. James, 2014 U.S. Dist. LEXIS 94064 (ED CA, July 9, 2014), a California federal magistrate judge recommended permitting a Muslim inmate to proceed on his complaint that after the former chaplain left officials denied chapel access, special food for festivals, and receipt of religious packages, and delayed hiring a new Muslim chaplain.

Christian College Gets Title IX Religious Exemption For Housing Of Transgender Students

George Fox University, a Christian University with Quaker roots, reports that on May 23 the U.S. Department of Education granted it a religious exemption from the Title IX Education Amendments of 1972 relating to non-discrimination in housing and facilities. The Oregon-based school says it applied for the exemption "to preserve its right to draw on its religious convictions to handle situations related to students experiencing gender identity issues."  It adds that other colleges have received similar exemptions in the past.

The facts need to be pieced together from the University's posting, an article last Friday in PQ Monthly and an earlier report by PQ Monthly.  Apparently an African-American transgender student, who is entering his junior year, was living in female-only campus housing when the student began the medical, social and legal gender transition.  Last April the student, "Jayce M." requested to move from female-only on-campus housing to male-only on-campus housing. The University denied the request, but presented the option of living off campus with other males (conditioned on completing name and gender changes on his driver's license and Social Security records) or living on campus in a single room.

As Jayce M prepared to appeal the school's denial of male on-campus housing to the Department of Education as a violation of Title IX's anti-discrimination provisions, the school applied for the Title IX exemption and was granted it in an unusually speedy two-months. On the basis of the newly-granted exemption the Department of Education earlier this month closed Jayce M's appeal. His lawyer says that they now plan to appeal the Department of Education's ruling.

Senate Democrats Propose Bill To Overrule Hobby Lobby Decision

On Wednesday, Senators Patty Murray and Mark Udall announced that they have introduced the "Protect Women's Health From Corporate Interference Act" (full text) (summary). The bill is designed to overrule the Supreme Court's recent Hobby Lobby decision by excluding Affordable Care Act requirements from the provisions of the Religious Freedom Restoration Act.  The bill provides in part:

(a) ... An employer that establishes or maintains a group health plan for its employees ... shall not deny coverage of a specific health care item or service with respect to such employees (or dependents) where the coverage of such item or service is required under any provision of Federal law or the regulations promulgated thereunder....

... Subsection (a) shall apply notwithstanding any other provision of Federal law, including Public Law 103–141 [Religious Freedom Restoration Act].

According to The Hill, the Senate Bill has 35 co-sponsors.

UPDATE: In a July 16 vote, the Senate failed to invoke cloture so it could move to consideration of the bill. The vote, largely along party lines, was 56-43.  Sixty votes are required to invoke cloture.

Canadian Trial Court Awards Damages Against Religious Order In Sex Abuse Class Action

According to Canadian Press, a Quebec trial court ruled yesterday that the Catholic order of priests, the Redemptorist Order, is liable in a class action to all sexual assault victims who attended Saint-Alphonse Seminary in Quebec City between 1960 and 1987. Nine priests are also named in the suit, but 6 of them are dead and the other 3 say they are living in poverty.  Under the court's verdict, each victim will receive at least $75,000, and some will receive $150,000.  So far, 70 former students have have filed alleging they were abuse victims.

Supreme Court Rejects Attempt By County Clerk To Appeal Pennsylvania Same-Sex Marriage Decision

As reported by SCOTUS Blog, on July 9 U.S. Supreme Court Justice Samuel Alito denied an application for a stay filed by a Pennsylvania clerk of courts.  The applicant was seeking to intervene in a lawsuit decided by a district court in order to appeal the district court's invalidation of Pennsylvania's ban on same-sex marriage. State officials had declined to appeal.  The Supreme Court's docket entry in Santai-Gaffney v. Whitewood denying the application to intervene cited  the Court's denial of a stay last month in an attempt by the National Organization for Marriage to intervene to appeal the invalidation of Oregon's same-sex marriage ban.

Non-Religious Non-Profit Sues To Challenge Contraceptive Coverage Mandate

In another permutation of the challenges to the Affordable Care Act contraceptive coverage mandate, a federal lawsuit was filed earlier this week by March for Life. The complaint (full text) in March for Life v. Burwell, (D DC, file 7/7/2014), alleges that while plaintiff is a non-profit pro-life organization that opposes providing certain contraceptive coverage to its employees, it does not qualify for the "accommodation" that permits an opt out in favor of coverage directly from the insurance company because March for Life does not hold itself out as a "religious organization." The complaint goes on to allege that the mandate violates the religious freedom rights of March for Life employees by requiring them to accept insurance plans that provide coverage for abortifacients. It also claims that the mandate violates its equal protection rights and the Administrative Procedure Act. ADF issued a press release on the case.

ABA Opens Nominations For Best Legal Blogs of 2014

The ABA Journal announced yesterday that it is opening nominations for its "2014 Blawg 100" awards.  Religion Clause has been honored to be on the Blawg 100 list for 5 out of the last 7 years.  If you would like to nominate Religion Clause, or any other legal blog, as one of the top 100, you may do so in 500 characters or less at this link. The nominations-- so-called "friend-of-the-blawg briefs"-- must be submitted by 5 p.m. ET on Aug. 8, 2014.

LGBT Rights Groups Withdraw Support For ENDA Over Religious Exemptions

US News reported yesterday that a number of LGBT and civil rights groups have decided to withdraw their support for the Employment Non-Discrimination Act  (ENDA), now believing that the religious exemption in the version that has passed the Senate (S. 815) is too broad. The shift in attitude has been prompted by increased assertion of religious beliefs as a basis for discriminating against gays and lesbians. Among the groups withdrawing their support are the National Gay and Lesbian Task Force, the ACLU, Lambda Legal, the National Center for Lesbian Rights, and the Transgender Law Center.

Archdiocese Settles Abuse Suit While Denying Its Validity

Last Monday, the Catholic Archdiocese of St. Louis issued a press release disclosing that it has settled a lawsuit brought by a female plaintiff identified as Jane Doe 92. Doe 92 claimed that she was sexually abused by Joseph Ross, a priest who was removed from the ministry in 2002. In 1988 Ross plead guilty to a misdemeanor stemming from his inappropriate touching of a young boy. The Archdiocese said that Ross is a known abuser and it is not defending him. However it continues to assert that Jane Doe's allegations are false, saying that she:

has been diagnosed, by her own treating doctors, with a medical condition that causes her to falsify claims, exaggerate symptoms and make inconsistent statements. Her own doctors and expert witnesses voiced doubts about her allegations and noted that they contained multiple inconsistencies. 

Religion Becomes Issue In Arkansas Senate Race

Earlier this week, ABC News reported on the prominent place that religion has assumed in the race for U.S. Senate in Arkansas. In a television interview last week, Republican Rep. Tom Cotton, seeking to capture the Senate seat from incumbent Sen. Mark Pryor, commented on the Supreme Court's Hobby Lobby decision, saying:

It's another example of how Obamacare infringes on the liberties of all Arkansans. Barack Obama and Mark Pryor think that faith is something that only happens at 11 on Sunday mornings.

In response, in a television ad running state-wide,Pryor, holding a Bible, says:

I'm not ashamed to say that I believe in God, and I believe in His word. The Bible teaches us no one has all the answers, only God does.

Report Says Muslim-Americans Included In NSA-FBI E-mail Monitoring

According to a lengthy report at The Intercept today, documents from whistleblower Edward Snowden reveal that the NSA and FBI have secretly monitored e-mails of several prominent Muslim-Americans, including Nihad Awad (executive director of CAIR),  Agha Saeed (former Cal State professor and Muslim civil liberties activist); Hooshang Amirahmadi (Iranian-American Rutgers professor); Asim Ghafoor (attorney who has represented clients in terrorism cases); and Faisal Gill (Republican Party operative who served in Department of Homeland Security). The FBI is listed as the "responsible agency" for monitoring of these five individuals.  The reasons for including their e-mail addresses in the nearly 7,500 monitored remain classified.

UPDATE: The Office of the Director of National Intelligence and the Department of Justice on July 9 issued a statement (full text) apparently in response to The Intercept report, saying in part:

It is entirely false that U.S. intelligence agencies conduct electronic surveillance of political, religious or activist figures solely because they disagree with public policies or criticize the government, or for exercising constitutional rights..... On the other hand, a person who the court finds is an agent of a foreign power under this rigorous standard is not exempted just because of his or her occupation.

Guantanamo Bay Detainees Argue Hobby Lobby Decision Makes RFRA Applicable To Them

AlJazeera reports on emergency motions filed last week in D.C.'s federal district court on behalf of two Guantanamo Bay detainees for temporary restraining orders to prohibit the government from denying the detainees the right to participate in communal prayer during Ramadan. The motions in Hasan v. Obama (full text) and Rabbani v. Obama (full text), both filed July 3 by the British advocacy organization Reprieve, argue that the previous D.C. Circuit decision in Rasul v. Myers holding that Guantanamo Bay detainees are not persons protected by the Religious Freedom Restoration Act has effectively been overruled by the Supreme Court's recent Hobby Lobby decision. As the argument is framed in the Rabbani motion:

The holding and express reasoning in Hobby Lobby makes Rasul a dead letter. Rasul relied on Supreme Court case law that predated Smith and excluded nonresident aliens from the scope of constitutional protections guaranteed by the Fourth and Fifth Amendments. Hobby Lobby wholly undermines Rasul by holding that the pre-Smith Supreme Court case law does not restrict the scope of “person[s]” protected by the RFRA, which Congress intended to exceed the scope of constitutional protection as set forth in the pre-Smith case law. Hobby Lobby instructs that the scope of “person[s]” protected by the RFRA is to be determined by reference to the definition of “person” in the Dictionary Act, not by reference to the pre-Smith case law.

... The Guantanamo Bay detainees, as flesh-and-blood human beings, are surely "individuals," and thus they are no less "person[s]" than are the for-profit corporations in Hobby Lobby or the resident noncitizens whom Hobby Lobby gives as an example of persons to whom the RFRA must apply.

A hearing on the emergency motions is scheduled for tomorrow morning.

Connecticut Synagogue Files RLUIPA Challenge To Zoning Denial

In Greenwich, Connecticut the Greenwich Reform Synagogue has filed a federal lawsuit challenging the Planning and Zoning Board of Appeals' refusal, on a 2-2- vote, to grant it a zoning exemption needed for final approval of its planned new building.  As reported by Greenwich Time, the suit, presumably invoking the Religious Land Use and Institutionalized Persons Act, alleges that the denial is burdensome and discriminatory, and treats the synagogue less favorably that the city has treated requests from churches and non-religious institutions.

Court Rules On Various Establishment Clause Challenges To Veterans Memorial

Hewett v. City of King, (MD NC, July 8, 2014), is a challenge to various religious practices at the Veterans Memorial in a King, North Carolina park. The most controversial of the practices were: (1) the flying of a Christian flag along with ten other military, U.S., state and city flags. In a policy that changed over time, ultimately the Christian flag was flown 47 weeks a year on a pole that was designated a limited public forum. And (2) the placing of a stature of a soldier kneeling in front of a cross as part of the memorial. In a 110-page opinion, a North Carolina federal district court ruled that the question of whether these violated the Establishment Clause should proceed to trial on issues of disputed fact.

Plaintiff also objected to various memorial events held at the Veterans Memorial. The court concluded as a matter of law that the city's involvement in arranging and participating in events at which speakers deliver overtly Christian messages violated the Establishment Clause. However the appearance of the city's fire truck at these events, the granting of perpetual permits to host annual ceremonies, installation of pavers, the participation of the mayor in non-religious ways in memorial ceremonies and certain other activities did not amount to endorsement by the city or excessive entanglement. Americans United issued a press release announcing the decision.

Episcopal Diocese Settles With Break-Away Congregations Without Lawsuit

Episcopal News Service yesterday reported on the final steps in an amicable settlement between the Episcopal Diocese of Olympia, Washington and two break-away congregations that ultimately joined the more conservative Anglican Church In North America. (Background.)  Unusual in this time of litigation, the settlement was reached over ten years without any lawsuits being filed.  Two years after the 2004 split, the parties signed a covenant agreement that called for no legal action to be taken before 2014, and for the break-away congregations to temporarily continue to meet in the meantime in their traditional buildings. Now those properties have been returned fully to the Episcopal Diocese, and the break-away congregations have found worship space elsewhere.

EEOC Sues Over Nursing Home's Ban On Hijab

The EEOC announced Monday that it filed suit last month against an Alabama nursing home for refusing to accommodate a Muslim employee's request to wear her hijab. Tracy Martin, hired as a certified nursing assistant by Shadecrest Healthcare Center filed an EEOC complaint after she was told to remove her head covering. Several weeks after the nursing home received notice of the complaint, Martin was summarily fired.

Pakistan Officials Agree On Creating National Commission For Minorities

The Nation today reports that after a year of deliberations, the government and the opposition party in Pakistan have agreed on the framework and composition of a National Commission for Minorities. The Commission will be comprised of ten members from different religions. Finance Minister Ishaq Dar says that four of the commissioners will be Muslim, two Christians, two Hindus, one Parsi and one Sikh. Names of the ten have been agreed upon.

Another Challenge To Idaho's Same-Sex Marriage Laws-- Now By Lesbian Veteran Over Burial Rights

A federal court challenge to Idaho's refusal to recognize same-sex marriages performed elsewhere was filed yesterday by a 74-year old Navy veteran who wants to be cremated and have her ashes interred together with those of her already-deceased same-sex spouse. Plaintiff Madelynn Lee Taylor brought her spouse's ashes with her back to Idaho where the couple had lived together. The complaint (full text) in Taylor v. Brasuell, (D ID, filed 7/7/2014), alleges that the sole reason the Idaho State Veterans Cemetery refused her request to make these advance arrangements is Idaho's laws prohibiting recognition of Taylor's 2008 California marriage to her long-time partner. NCLR issued a press release and AP reports on the case. In an unrelated case in May, a magistrate judge in the same federal district court struck down Idaho's laws barring same-sex marriage. (See prior posting.) However subsequently the 9th Circuit in Latta v. Otter (May 20, 2014), granted a stay of the decision while it is on appeal.

Belfast Bakery Faces Suit Over Refusal To Decorate Cake In Support of Gay Marriage

Mail Online reported yesterday on the latest clash in Britain between Christian business owners and gay rights proponents. Activist Gareth Lee ordered a cake from Christian-run Ashers Baking Company in Belfast.  He wanted the cake decorated with the name of his organization, QueerSpace, two Sesame Street characters and the words "Support Gay Marriage."  A bakery staff member accepted the order, but the owners and manager of the family-run company called Lee, offering a refund and refusing to produce the cake on religious grounds. Lee complained to Northern Ireland's Equality Commission which wrote the bakery saying that the refusal violates the public accommodation non-discrimination provisions (Regulation Five) of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.  The Commission said it would file suit within 7 days of the letter.

Diocese Objects To Louisiana Supreme Court Decision On Priest-Penitent Privilege

The Baton Rouge (LA) Advocate reported yesterday on the Louisiana Supreme Court's per curiam opinion and a concurrence in Parents of Minor Child v. Charlet, (LA Sup. Ct., April 4, 2014), a clergy sex-abuse case decided three months ago but only now receiving attention. As summarized by The Advocate:

The case involves a young girl who claims she was sexually abused by a now-deceased church parishioner but that her confession to a local priest fell on deaf ears.

The decision resuscitates a five-year-old lawsuit against the Roman Catholic Church of the Diocese of Baton Rouge, the Rev. Jeff Bayhi and others, and gave the girl, now an older teenager, the green light to testify and introduce evidence of “her own confession.”

At the same time, the state high court sent the case back to 19th Judicial District Court Judge Mike Caldwell, saying there is still a dispute “concerning whether the communications between the child and the priest were confessions per se and whether the priest obtained knowledge outside the confessional that would trigger his duty to report” sexual abuse allegations.

Yesterday the Diocese of Baton Rouge posted a statement (full text) on its website strongly criticizing the Supreme Court's decision. The statement reads in part:

The Supreme Court of Louisiana ... remanded for further proceedings in the District Court to hold a hearing concerning whether or not there was a “confession.” We contend that such a procedure is a clear violation of the Establishment Clause of the U. S. Constitution. The Supreme Court of Louisiana cannot order the District Court to do that which no civil court possibly can—determine what constitutes the Sacrament of Reconciliation in the Catholic Church. Indeed, both state and federal jurisprudence make clear that there is no jurisdiction to adjudicate claims that turn upon such purely religious questions.

India's Supreme Court Rules Sharia Courts Legal As Advisory Bodies, But Should Not Issue Rulings Unless Requested By Party Affected

In Madan v. Union of India, (India Sup. Ct., July 7, 2014), petitioner challenged the legality of Muslim Sharia Courts set up around the country and supported by the All India Muslim Personal Law Board.  The suit was filed after publicity about a case in which a Muslim Court ruled that a married woman who was raped by her father-in-law could no longer remain married to the son. The Fatwah in the case was apparently issued without its being requested by any of the parties immediately involved.  A 2-judge panel of India's Supreme Court refused to order Muslim courts dissolved, saying:

A Qazi or Mufti has no authority or powers to impose his opinion and enforce his Fatwa on any one by any coercive method.... It has no legal sanction and can not be enforced by any legal process.... The person or the body concerned may ignore it ....

However the court was troubled by Fatwas issued at the behest of third parties, saying that they create "serious psychological impact" on the person who chooses to ignore them.  Therefore, it ruled that Muslim courts should not issue Fatwas affecting the rights, status or obligation of an individual unless that person has asked for a ruling. AP reports on the decision.

County Clerk Asking Supreme Court To Stay Decision Allowing Same-Sex Marriage In Pennsylvania

The Schuylkill County, Pennsylvania clerk of courts continues her efforts to intervene in order to appeal a federal district court's invalidation of Pennsylvania's ban on same-sex marriage.  Last week, the 3rd Circuit in Whitewood v. Secretary Pennsylvania Department of Health, (3d Cir., July 3, 2014) issued a summary order affirming the district court's refusal to permit her to intervene. Remaining unhappy with the Governor's decision not to appeal the underlying decision permitting same-sex marriage, county clerk Theresa Santai-Gaffney is now asking the U.S. Supreme Court to stay pending appeal the district court's order striking down the state's laws banning same-sex marriage.  In a petition filed Friday with Justice Alito (full text), she argues that when the Supreme Court granted a stay pending appeal to the state of Utah in a similar case, it signaled all lower federal courts that they should do the same. SCOTUS Blog reports more details.

Algeria Plans To Reopen Synagogues, Though Few Jews Left In Country

According to JTA, Algeria's Religious Affairs Minister last week said that the country is prepared to reopen synagogues. They were closed down in the 1990's for security reasons.  However security arrangements need to be set up before the step is taken. It is estimated that only a tiny number of Jews remain in Algeria.

Recent Articles and Books of Interest

From SSRN:

• Benjamin L. Berger, Poetry, Mercy, and the Phenomenology of Justice, (Forthcoming in Ehud Ben Zvi, Claudia V. Camp, David M. Gunn and Aaron W. Hughes, eds., Poets, Prophets, and Texts in Play: Studies in Biblical Poetry and Prophecy in Honour of Francis Landy (London: T & T Clark, 2014)).
• Marie A. Failinger, Twenty-Five Years of Law and Religion Scholarship: Some Reflections, (Touro Law Review, Vol. 30, p. 9 (2014)).
• Wojciech Sadurski, Searching for Illicit Motives: Constitutional Theory of Freedom of Speech, Equal Protection, and Separation of State and Religion, (Sydney Law School Research Paper No. 14/61, July 2014).
• Michael J. T. McMillen & Sheikh Yusuf Talal DeLorenzo, Islamic Finance and the Shari'Ah: The Dow Jones Fatwa and Permissible Variance as Studies in Letheanism and Legal Change, (June 23, 2014).
• András Koltay, The Appearance of the Clear and Present Danger Doctrine In Hungarian Hate Speech Laws and the Jurisprudence of the European Court of Human Rights, (June 23, 2014).

Recent and Forthcoming Books:

• Matthew Stewart, Nature's God: The Heretical Origins of the American Republic, (W.W. Norton & Co., July 2014).
• Al-Qadi al-Nuʿman, Disagreements of the Jurists: A Manual of Islamic Legal Theory, (Edited and translated by Devin Stewart), (NYU Press, Jan. 2015).
• J. Judd Owen, Making Religion Safe for Democracy: Transformation from Hobbes to Tocqueville, (Cambridge University Press, Jan. 2015).

Recent Prisoner Free Exercise Cases

In Ford v. Bureau of Prisons, (3d Cir., June 30, 2014), the 3rd Circuit dismissed the complaint of a Nation of Islam inmate that he was not provided a meal after his fast on two holy days. The court also rejected his claim that discipline for a radical sermon he gave was retaliation.

In Lackey v. Midget, 2014 U.S. Dist. LEXIS 87289 (ED VA, June 25, 2014), a Virginia federal district court adopted a magistrate's recommendations and dismissed a Muslim inmate's complaint that on one evening he received an incomplete Ramadan meal.

In Lewis v. Hirsh, 2014 U.S. Dist. LEXIS 84648 (ED CA, June 20, 2014), a California federal magistrate judge gave an inmate 30 days to amend his pleadings, or else face dismissal of his complaint that  prison authorities are attempting to cause him to violate his Christian Science faith by classifying him as a high medical risk.

In Spight v. Davidson, 2014 U.S. Dist. LEXIS 85671 (MD TN, June 23, 2014), a Tennessee federal district court dismissed a suit by a Seventh Day Adventist inmate who complained that officials would only allow him a vegetarian diet, and not a kosher diet that includes meat.

In Mingo v. Fischer, 2014 U.S. Dist. LEXIS 87231 (ND NY, June 26, 2014), a New York federal district court dismissed an inmate’s complaint that a prison staff member made disparaging remarks about his religion.

In Tate v. Dickinson, 2014 U.S. Dist. LEXIS 86577 (ED CA, June 24, 2014), a California federal magistrate judge recommended dismissing a Muslim inmate's complaint that he is limited to purchasing only 5 pre-selected fragrances of prayer oils.

In Joe v. Nelson, 2014 U.S. Dist. LEXIS 87560 (MD GA, June 27, 2014), a Georgia federal district court dismissed an inmate's complaint that unsanitary conditions in his cell meant that he had to wipe the floor before his daily prayers and on one day he could not perform 4 of his 5 daily prayers because of water flooding his cell.

In Johnson v. Corrections Corporation of America, 2014 U.S. Dist. LEXIS 87978 (SD CA, June 23, 2014), a California federal district court dismissed, with leave to amend, an inmate's complaint that the assistant warden would not authorize him to participate in the Ramadan fast.

In Mohamad v. Wenerowicz, 2014 U.S. Dist. LEXIS 89225 (ED PA, June 30, 2014), a Pennsylvania federal district court dismissed a Muslim inmate's complaint that he was unable to pray on a single day when he was kept in handcuffs for over two hours.

In Taylor v. Pearson, 2014 U.S. Dist. LEXIS 87657 (SD AL, June 27, 2914), an Alabama federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 88358, June 2, 2014) and dismissed without prejudice a suit by an inmate claiming his free exercise rights were infringed when he was required to cut his hair and sideburns in an unsanitary barbering facility. The dismissal was a sanction for plaintiff's failure to list in his application for in forma pauperis status 6 prior suits he had filed.

In Williams v. Roberts, 2014 U.S. Dist. LEXIS 89015 (ED CA, June 27, 2014), a California federal magistrate judge dismissed an inmate's claim that his free exercise rights were infringed when a commissioner at his parole hearing questioned his repeated changes in religious belief. Plaintiff had failed to follow through on either Alcoholics Anonymous or an Islam-based program for rehabilitation.

Preacher Sues To Gain Access To Sidewalk Outside Iowa State Fair

The Des Moines Register reports on a federal lawsuit filed last month by Jason Powell who wants to share his Christian message with persons going to the Iowa State Fair next month.  He seeks a ruling that police acted unconstitutionally last year when they detained and photographed him after he insisted on holding a sign and preaching on the sidewalk just outside the entrance gate to the Fair. A police officer told Powell he had to move to the other side of the street. Powell's attorney says that the recent U.S. Supreme Court decision in McCullen v. Coakley striking down the abortion clinic buffer zone set up by Massachusetts law supports their case.

Lawsuit Challenges Lack of Availability of Plans Without Abortion Coverage On Health Insurance Exchange

The Providence (RI) Journal reports today on a lawsuit with a new twist on free exercise objections to the Affordable Care Act.  Barth Bracy, director of the Rhode Island Right to Life Committee and a resident of Connecticut, along with his wife, filed suit two months ago because the only health care plans available through the Health Insurance Exchange in Connecticut include abortion coverage.  All enrollees must pay a small separate fee for that coverage.

The complaint (full text) in Bracy v. Sebelius, (D CT, filed 5/1/2014), alleges that if the Bracys purchase a plan through the Exchange, they will receive nearly a 100% subsidy for its cost.  But they can only obtain a plan that excludes abortion coverage by purchasing outside the Exchange and receive no subsidy.  The premium on such a plan would be nearly double the $494 per month premium they are now paying. They allege that this violates their rights protected by the Free Exercise Clause, RFRA and the Connecticut Religious Freedom Restoration Act. They also claim that their 1st Amendment right to receive information is infringed by regulations that prohibit insurers or exchanges from advertising whether plans cover abortions, from informing enrollees prior to the time of enrollment whether the plan covers abortion, and prohibits telling enrollees the portion of their total premium that is allocated to abortion coverage.

Supreme Court In Post-Term Order Enjoins Non-Profit Contraceptive Accommodation, Pending Appeal

It turns out that the U.S. Supreme Court was not completely finished with its work last Monday.  Yesterday it granted an injunction to a religiously-affiliated liberal arts college that objects to complying with the Affordable Care Act contraceptive coverage accommodation for religious non-profits.  Wheaton College, which was denied a preliminary injunction by an Illinois federal district court (see prior posting), applied to Justice Kagan for an emergency injunction pending appeal. Justice Kagan referred the application to the full court. In an order issued last Monday, separate from the full Order List for the day, the Court issued a temporary injunction and called for a response by Wednesday.  On Thursday in Wheaton College v. Burwell, (S.Ct., July 3, 2014), in an unsigned order the court held:

If the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators....

[T]he applicant has already notified the Government—without using EBSA Form 700—that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds. Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.

In light of the foregoing, this order should not be construed as an expression of the Court’s views on the merits.

Justice Scalia noted that he concurs in the result. Justice Sotomayor, in a strongly worded dissent, Joined by Justices Ginsburg and Kagan, said in part:

[J]ust earlier this week in Burwell v. Hobby Lobby Stores, Inc., ... the Court described the accommodation as “a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.” ...  Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might ... retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution....

... I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so.

The Washington Post and SCOTUS Blog both report on the Court's action.

Anti-Christian Video Clips Did Not Create Hostile Work Environment

Parker v. Side By Side, Inc., (ND IL, June 27, 2014), is a suit by a former employee of a Chicago bar that caters primarily to single gay men.  Among other things, plaintiff, a non-denominational Christian, claimed religious harassment by co-workers that created a hostile work environment. The court concluded that it could not determine at the summary judgment stage whether the harassment had a religious character, or instead was political in nature, aimed at the political ideology of conservative Christians:

The line between religious and political beliefs—and, thus, the line between protected and non-protected characteristics under Title VII—is often muddy, especially in the context of social policy issues....

However the court rejected the claim that videos played at the bar amounted to religious harassment, saying:

... [T]he allegedly offensive anti-Christian video clips ... do not contribute to the alleged hostility of his work environment. Sidetrack played the video clips during “Comedy Nights,” and it obtained all or at least a vast majority of the clips from mainstream broadcasts. None of the allegedly offensive material was directed at Plaintiff. Sidetrack, moreover, is known for playing comedic and other video clips on screens around the bar. The Court must evaluate the “totality of the circumstances” ..., but it need not—and must not—abandon common sense and sensitivity to social context in evaluating the alleged hostility. Just as a reasonable professional football player would not consider his working environment to be severely or pervasively hostile “if the coach smacks him on the buttocks as he heads onto the field,”..., a reasonable person in Plaintiff’s position would not view mainstream video clips played as part of Sidetrack’s Comedy Night events to create or even contribute to an allegedly hostile work environment.

Volokh Conspiracy has more on the decision.

China Orders Muslims In Northwest Not To Observe Ramadan Fast

AP reports that schools, government agencies and Communist Party organizations in China's northwestern Xinjiang region have ordered students and civil servants in the region to avoid observing the traditional Ramadan fast that began Saturday night. The move comes in the midst of tightened security in the heavily Muslim region after attacks in May and June led to over 50 deaths.  China blames the unrest on Muslim extremists with foreign terrorist ties, and fears that religious activities could become a rallying point for anti-government activity. Apparently earlier this week authorities in some towns held celebrations of the founding of the Communist Party and served food to find out whether Muslim attendees were fasting.

Christian Hip-Hop Group Sues Top Music Star For Copyright Infringement

The St. Louis Post Dispatch reports that earlier this week the members of the Christian hip-hop music group Flame filed a federal copyright infringement lawsuit against pop singer Katy Perry, Capitol Records and others involved in creating Perry's "mega-hit" song and music video, Dark Horse. The complaint (full text) in Gray v. Perry, (ED MO, filed 7/1/2014), alleges:

By any measure, the Dark Horse song also constitutes an infringement of Plaintiffs’ copyright in their Christian gospel song Joyful Noise, released five years before Dark Horse..... And by any measure, the devoutly religious message of Joyful Noise has been irreparably tarnished by its association with the witchcraft, paganism, black magic, and Illuminati imagery evoked by the same music in Dark Horse. Indeed, the music video of Dark Horse generated widespread accusations of blasphemy.... 

Rapzilla has comparative sound clips from the two songs designed to show that they differ only in pitch and tempo. The lawsuit asks for damages and injunctive relief.

Faith Leaders Ask Obama To Include Religious Exemption In Planned LGBT Non-Discrimination Executive Order

In remarks (full text) at a June 30 White House reception celebrating LGBT Pride Month, President Obama announced that he has directed his staff to prepare two executive orders.  One will prohibit discrimination by federal contractors on the basis of sexual orientation or gender identity. Another will expand the sexual orientation non-discrimination provisions applicable to federal employees to also include gender identity.

Meanwhile the Washington Post reports on a July 1 letter (full text) sent to the President by 14 clergy and faith-based organization leaders asking the President to include a religious exemption in any executive order on federal contractors and LGBT employment policy. The letter reads in part:

Without a robust religious exemption,, like the provisions in the Senate-passed ENDA, this expansion of hiring rights will come at an unreasonable cost to the common good, national unity and religious freedom....

While the nation has undergone incredible legal and social change over the last decade, we still live in a nation with different beliefs about sexuality. We must find a way to respect diversity of opinion on this issue in a way that respects the dignity of all parties to the best of our ability.... [A] religious exemption would simply maintain that religious organizations will not be automatically disqualified or disadvantaged in obtaining contracts because of their religious beliefs.

Religious Health Care Provider Loses Free Exercise Claim Against Medi-Cal Managed Care Plan

In Horisons Unlimited v. Santa Cruz-Monterey-Merced Managed Medical Care Commission, 2014 U.S. Dist. LEXIS 89030 (ED CA, June 27, 2014), a religious health care provider sued over actions of Alliance, the sole Medi-Cal manged care plan in the county.  Alliance refused to credential the clinics' providers and allow new enrollments of Medi-Cal beneficiaries at the clinics. In addition to various antitrust claims, the clinic asserted infringement of its free exercise of religion. The court rejected the contention, saying:

An allegation that one member of Alliance's governing body "objected to" religious services at Horisons' clinics fails show or give rise to a reasonable inference that Alliance burdened Horisons' practice of religion by preventing Horisons from engaging in conduct mandated by Horisons' faith.

More Legal Problems For Christian Sudanese Woman

In Sudan, the case of Mariam Yahya Ibrahim-- whose father was Muslim, but who was raised by her mother as a Christian-- is becoming legally more complex. As previously reported, Ibrahim was initially sentenced to death for apostasy for embracing Christianity, but an appeals court last week overturned the sentence and released her from custody. (See prior posting.) However, as reported by Reuters, when Ibrahim, along with her Christian husband and her two children, attempted to fly out of the country, she was again briefly detained by police who charged her with using falsified travel documents.  Sudanese authorities objected to her travel documents that were issued by the embassy of South Sudan. After being released by police last Thursday, she and her family took up temporary residence in the U.S. embassy in Khartoum. Now a lawsuit has been filed against her in the Khartoum Religious Court, brought by her father's family, seeking to establish she is a Muslim.  If successful, that would presumably invalidate her marriage to her Christian husband (who is South Sudanese and holds American citizenship), and would impede her plans to leave Sudan.

Arbitrator Awards Damages For Diocese's Breach of Settlement Agreement In Clergy Sex Abuse Cases

In 2008, the Catholic Diocese of Kansas City- St. Joseph (MO) entered a settlement agreement in a lawsuit brought by 47 clergy sex abuse victims, paying them $10 million in damages and agreeing to a number of terms to prevent future abuse and aid past victims.  The agreement included an arbitration clause. Yesterday's Kansas City Star reports that in 2011, 44 of the 47 settling plaintiffs filed suit in a Missouri state court seeking to force the Diocese to arbitration for violating the settlement agreement.  The charges focused on the Diocese's delay in reporting to authorities their discovery of hundreds of images of young girls on the computer of priest Shawn Ratigan. (See prior related posting.) In March of this year, an arbitrator issued a report finding that the Diocese had breached five provisions of the settlement agreement, and awarded damages of $650,000, attorneys' fees of $450,000, $5,820 for unpaid counseling of sex abuse victims.  The award was to remain confidential until one of the parties moved to have the court confirm or vacate it.  On June 20, the Diocese filed a motion to vacate the award, and it then became public.  The Diocese argues that there is nothing in the settlement agreement that authorizes the arbitrator to award additional damages. The arbitrator had said, however, that plaintiffs could have used the breaches as a basis for voiding the settlement agreement and obtaining an even larger award.

Court Enters Settlement Order In Dispute Over State Funding To Religious Child-Care Facility

In Pedreira v. Sunrise Children's Services, Inc., (WD KY, June 30, 2014), a Kentucky federal district court entered an order incorporating terms of a settlement between the parties in an Establishment Clause lawsuit, and retained jurisdiction to enforce the order. At issue was the long-running controversy over the state of Kentucky's funding treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization. The settlement requires the state to modify its contracts with child care agencies so that the religious affiliation or non-affiliation of children is respected. (See prior related posting.) The court rejected challenges by Sunrise to the settlement:

Sunrise urges that the Agreement will subject it to a “Hobson’s Choice” – That is, it will have to choose either to accept terms in new PCC agreements which it finds objectionable, or forego contracts with the Commonwealth which provide essential funding for its continued operation. As aptly stated by the Commonwealth defendants however, this is not a “Hobson’s Choice;” it is a business choice....  Sunrise does not suggest that the Commonwealth does not have the right to add to or alter the terms of its future PCC contract offerings, with or without this settlement.

Americans United issued a press release announcing the court's action. AP reports on the decision.

District Court Grants Preliminary Injunction, Quoting Same-Day's SCOTUS Opinion In Hobby Lobby

In Archdiocese of St. Louis v. Burwell, (ED MO, June 30, 2014), a Missouri federal district court granted a preliminary injunction to Catholic non-profit organizations preventing enforcement of the contraceptive coverage mandate accommodation against them. The court rejected the government's argument that the religious-based organizations are not injured (and thus lack standing) because the government has no authority under ERISA to enforce against the third party administrator of a "church plan" the requirement that it furnish contraceptive coverage directly after the non-profit employer opts out. The court said:

Plaintiffs' injury is not related to whether the TPA can be penalized for noncompliance with the mandate. Rather, Plaintiffs' injury arises when the provision of contraceptive coverage has been facilitated by their actions and their beliefs have thereby been violated. This constitutes a sufficient injury to satisfy the constitutional minimum of standing.

The court went on to conclude that the requirement for non-profits to execute a certification to opt out of the mandate imposes a substantial burden on their religious exercise. Then, incorporating language from the Supreme Court's Hobby Lobby opinion decided earlier the same day on which this court's opinion was filed, the court concluded that the government has shown it has a compelling interest, but  it has not shown that it has used the least restrictive means to accomplish its goal. The court said in part:

Indeed, the Supreme Court has observed that the most straightforward way for the Government to achieve its goal without imposing a substantial burden on the exercise of religion would be to assume the cost of providing contraceptives to any women unable to obtain them under their health insurance policies due to their employers' religious objections. Burwell [v. Hobby Lobby Stores, Inc.], --S.Ct.--, 2014 WL 2921709.

The Archdiocese of St. Louis issued a press release welcoming the decision.

5th Circuit: Defer To State Court Proceedings In Church Property Dispute

African Methodist Episcopal Church v. Lucien, (5th Cir., June 30, 2014), involves appeals in two related cases growing out of a property ownership dispute between the national AME Church and a local congregation, St. James Mission Church. St. James sued in a Louisiana state court seeking to evict several AME national church officers who had taken over the local church building. AME filed a counter suit in federal court seeking a declaration that the break-away members had given up any rights to the property through their dissociation.  AME then removed the eviction action to federal court, claiming diversity of citizenship.  However St. James claimed the removal was improper.  The 5th Circuit agreed, finding the jurisdictional diversity of citizenship lacking. The Court ordered that the eviction proceeding be remanded to state court, and that the federal district court also abstain from deciding the counter-suit until the eviction proceeding is concluded in state court.

Court Invalidates Kentucky's Same-Sex Marriage Ban; Stays Order

In Love v. Beshear, (WD KY, July 1, 2014), a Kentucky federal district court held that Kentucky's statutory and constitutional provisions barring same-sex marriage violate the 14th Amendment's Equal Protection clause and are unenforceable. Judge Heyburn wrote in part:

in America even sincere and long-held religious views do not trump the constitutional rights of those who happen to have been out-voted. 

However, the court stayed its order until further order of the 6th Circuit Court of Appeals.  The same court earlier this year held that Kentucky must recognize valid same-sex marriages performed elsewhere. (See prior posting.) Washington Post reports on yesterday's decision. [Thanks to Tom Rutledge for the lead.]

Supreme Court Grants Review In Church's Challenge To Sign Ordinance

The U.S. Supreme Court today granted certiorari in Reed v. Gilbert, AZ, (Docket No. 13-502, cert. granted 7/1/2014.) (Order List.) In the case, 9th Circuit Court of Appeals, in a 2-1 decision, upheld an Arizona town's sign ordinance that limits the size, number and time frame in which non-profit groups can display temporary directional signs.  The limits on temporary event signs are stricter than limits placed on various other types of signs, having the effect of favoring political and ideological signs over religious ones.  The ordinance was challenged by a church that placed 17 signs in the area around its place of worship announcing the time and location of its services. (See prior posting.) Here is the petition for certiorari. An ADF press release has more background.

Supreme Court Cleans Up Docket After Hobby Lobby Decision

Today the U.S. Supreme Court did a clean-up of pending Affordable Care Act contraceptive mandate cases brought by for-profit companies now that the Court has handed down its decision in Hobby Lobby. The Court denied certiorari in cases: Department of Health and Human Services v. Gilardi, (Docket No. 13-915); Burwell v. Newland (Docket No. 13-919); and Burwell v. Korte (Docket No. 13-937). In three other pending petitions for review the Supreme Court granted certiorari and summarily vacated the Court of Appeals decisions, remanding each case to the Court of Appeals for further consideration in light of Hobby Lobby.  The cases are: Autocam Corp. v. Burwell, (Docket No. 13-482); Gilardi v. Department of Health and Human Services, (Docket No. 13-567); Eden Foods, Inc. v. Burwell, (Docket No. 13-591). All of these actions are noted in today's Order List.)

Israel's Supreme Court Says Rabbinical Courts Lack Jurisdiction To Order Circumcision of Child

Israel's High Court of Justice on Sunday held 6-1 that a rabbinical court did not have jurisdiction in the context of a divorce action to order a couple to circumcise their one-year old son over the mother's objection. (See prior posting.)  Jerusalem Post reports that Deputy Supreme Court President Miriam Naor wrote in her majority opinion that the question of circumcision is unrelated to divorce issues that define the rabbinical courts' jurisdiction.  She said that parents have the right to make decisions in their child’s best interests whether they are married or divorced. The Court held that the question should be decided by the civil family court system. Chief Rabbi Yitzhak Yosef, president of the Supreme Rabbinical Court of Appeal, strongly criticized the High Court's decision, saying in part:

This ruling is another severe step in which Jewish judges forbid the fulfillment of a mitzva for which the Jewish people sacrificed its lives for throughout the generations.

European Court Upholds France's Ban Wearing Burqa In Public

The European Court of Human Rights today, in a Grand Chamber judgment, upheld France's ban on Muslim women wearing the full-face veil in public.  In S.A.S. v. France, (ECHR, July 1, 2014), the court by a vote of 15-2 held that France's law prohibiting the concealment of one’s face in public places (and thus barring the burqa and niqab) does not violate either Art. 8 (respect for private and family life) or Art. 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights. The Court unanimously held that the law does not violate Art. 14 (discrimination). The Court concluded that the ban can be justified as a means of guaranteeing the conditions of "living together." The Court said in part:

[W]hile it is true that the scope of the ban is broad, because all places accessible to the public are concerned (except for places of worship), the Law of 11 October 2010 does not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which does not have the effect of concealing the face. The Court is aware of the fact that the impugned ban mainly affects Muslim women who wish to wear the full-face veil. It nevertheless finds it to be of some significance that the ban is not expressly based on the religious connotation of the clothing in question but solely on the fact that it conceals the face.....

... [T]he respondent State is seeking to protect a principle of interaction between individuals, which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society .... In such circumstances, the Court has a duty to exercise a degree of restraint in its review of Convention compliance, since such review will lead it to assess a balance that has been struck by means of a democratic process within the society in question.

The Court also issued a press release summarizing the decision. CNN reports on the decision. [Thanks to Paul de Mello for the lead.]

10th and 11th Circuits Grant Injunction Pending Appeal To Religious Non-Profits Challenging ACA Rules

Yesterday two circuit courts of appeal granted stays pending appeal in suits by religious non-profits challenging the Affordable Care Act contraceptive coverage accommodation. In Diocese of Cheyenne v. Burwell, (10th Cir., June 30, 2014), the 10th Circuit Court of Appeals held that it would enjoin enforcement of the accommodation against several Wyoming Catholic charitable and educational institutions so long as they inform the Secretary of Health and Human Services in writing (but not necessarily using the government's form) that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services.

In Eternal World Television Network, Inc. v. Secretary, U.S. Department of Health and Human Services, (11th Cir., June 30, 2014), the U.S. 11th Circuit Court of Appeals granted an injunction pending appeal to a religious non-profit broadcasting network challenging the contraceptive mandate accommodation rules. Judge Pryor wrote a 26-page special concurrence explaining why EWTN is likely to succeed on the merits. Both the court's order and Judge Pryor's opinion cited yesterday's Supreme Court decision in Hobby Lobby for support. [Thanks to Stephen Blakeman for the lead.]

White House Reacts To Hobby Lobby Decision

At a press briefing yesterday (transcript), White House Press Secretary Josh Earnest set out president Obama's reaction to the Supreme Court's Hobby Lobby decision, saying in part:

The Supreme Court ruled today that some bosses can now withhold contraceptive care from their employees’ health coverage based on their own religious views that their employees may not even share.  President Obama believes that women should make personal health care decisions for themselves rather than their bosses deciding for them.

Today’s decision jeopardizes the health of women who are employed by these companies.  As millions of women know firsthand, contraception is often vital to their health and well being.  That’s why the Affordable Care Act ensures that women have coverage for contraceptive care, along with other preventative care like vaccines and cancer screenings.

We will work with Congress to make sure that any women affected by this decision will still have the same coverage of vital health services as everyone else.

President Obama believes strongly in the freedom of religion.  That’s why we’ve taken steps to ensure that no religious institution will have to pay or provide for contraceptive coverage.  We’ve also made accommodations for non-profit religious organizations that object to contraception on religious grounds.  But we believe that the owners of for-profit companies should not be allowed to assert their personal religious views to deny their employees federally mandated benefits.