Religion Clause

Sunday, September 07, 2014

Recent Prisoner Free Exercise Cases

In Jenkins v. Meyers, (9th Cir., Sept. 4, 2014), the 9th Circuit upheld a prison's action in returning a package containing religious prayer oil sent by an unapproved religious vendor.

In Woodward v. Perez, 2014 U.S. Dist. LEXIS 121329 (SD NY, Aug. 29, 2014), a New York federal district court dismissed on qualified immunity and mootness grounds a Muslim inmate's complaint that his religious rights were infringed when he was requied to shower in the presence of a female officer and a "known homosexual" fellow-inmate.

In Lindsey v. Butler, 2014 U.S. Dist. LEXIS 121364 (SD NY, Aug. 29, 2014), a New York federal district court permitted a Black Sunni Muslim plaintiff to proceed with his claim that his free exercise and 4th Amendment rights were infringed when police forcibly shave his facial hair for purposes of a police lineup.

In Green v. Director/Secretary California Department of Corrections & Rehabilitation, 2014 U.S. Dist. LEXIS 121485 (SD CA, Aug. 29, 2014), a California federal district court permitted a Native American inmate to proceed with his complaint that he was denied access to a sweat lodge, was harassed and intimidated, and had his religious items confiscated.

In Rowe v. Indiana Department of Corrections, 2014 U.S. Dist. LEXIS 123884 (SD IN, Sept. 5, 2014), an Indiana federal district court rejected claims by a White Supremacist inmate who was a leader of the Church of Jesus Christ Christian (the religious arm of Aryan Nations) that policies of the Indiana Department of Corrections interfered with his abillity to practice his religion. The challenged policies involved security threat groups, offender visitation, property limits, offender correspondence and a policy that prevents him from wearing a swastika necklace.

8th Circuit: Small Employer Lacks Standing To Challenge Contraceptive Coverage Mandate

Annex Medical, Inc. v. Burwell, (8th Cir., Sept. 5, 2014) presents a new twist on the contraceptive coverage mandate issue decided by the Supreme Court in Hobby Lobby. In the case, the district court had denied a preliminary injunction, but the 8th Circuit Court of Appeals then granted a preliminary injunction pending appeal. Now in a 2-1 decision, the 8th Circuit vacates the district court's order, holding that an employer of under 50 employees lacks standing to challenge the contraceptive coverage mandate on religious grounds.

Important to the majority's decision is its reading of a provision of the Internal Revenue Code which many have seen as imposing a $100 per day excise tax on a small employer that chooses voluntarily to provide its employees health insurance, but insurance that not cover contraceptive services. The court concludes that 26 USC Sec. 4980D(d) precludes penalizing the company if it offers insurance from a health insurer which is inconsistent with the contraceptive mandate.

The company complains however that no insurance company will write a policy that excludes contraceptive coverage because federal law prohibits the insurance company from doing so. The majority writes:

The standing problem is the pleadings and record contain no indication any Minnesota health insurer is willing, but for the mandate, to sell a plan allowing a small employer such as Annex to prohibit coverage for a handful of healthcare products and services....

Based on the pleadings and sparse record before us, we can only speculate whether Annex’s difficulties obtaining contraceptive-free insurance are (1) caused by the government defendants as opposed to the independent decisions of third-party insurers, and (2) redressable by the remedy available to Annex: a permanent version of the preliminary injunction Annex already received and which failed to redress Annex’s alleged injury.

Judge Colloton, concurring, argues that Annex has standing:

it should be evident that a market to serve Annex Medical is likely to develop if the requested relief is granted. It is unsurprising that insurers were not prepared to write policies for Annex Medical and submit them to state regulators for approval based on a temporary injunction pending appeal of indefinite duration while the law was unsettled. But the complaint seeks permanent injunctive and declaratory relief that the government cannot forbid the issuance of the group plan that Annex Medical wants to purchase.

[Thanks to Stephen Blakeman for the lead.]

Saturday, September 06, 2014

State Antidiscrimination Law Applies To Selection of Members of Catholic High School Basketball Team

In Cardinal Ritter High School, Inc. v. Bullock, (IN App., Sept. 5, 2014), an Indiana Court of Appeals held that the Indiana Civil Rights Law applies to alleged racial discrimination by a Catholic high school in selecting members of its basketball team. The Act, by its terms, applies to discriminatory practices relating to education. The court held that this does not offend the school's free exercise rights. However the court vacated and remanded the case because the administrative law judge who heard the testimony retired, and the findings of fact were written by a different ALJ who never heard the testimony or saw the witnesses in person.

Friday, September 05, 2014

Internet Was Scrubbed of Sotloff's Jewish Connections In Try To Protect Him

JTA reported yesterday on the extensive efforts that were made after ISIS captured American journalist Steven Sotloff to scrub the Internet of any mention that he was Jewish or held dual Israeli citizenship. Sone 150 of his friends searched out any online mention of these facts to eliminate them. They also convinced journalists wrting about Sotloff to remove any mention of these facts as a way to lessen his danger. The efforts were successful in keeping the information from ISIS, but not successful in preventing Sotloff's beheading earlier this week.

32 States Ask Supreme Court To Grant Cert In Same-Sex Marriage Cases

As reported yesterday by AP, in two separate amicus briefs a total of 32 states have asked the U.S. Supreme Court to grant certiorari to decide on the constitutionality of state bans on same-sex marriage. Led by Massachusetts, 15 states that allow same-sex marriage joined a brief in Herbert v. Kitchen, the 10th Circuit case invalidating Utah's ban. (Full text of brief.) (Mass. AG press release.) 17 other states led by Colorado filed a brief in Rainey v. Bostic, the 4th Circuit Virginia case and Smith v. Bishop, the 10th Circuit Oklahoma case.

7th Circuit Invalidates Same-Sex Marriage Bans In Indiana and Wisconsin

Yesterday the U.S. 7th Circuit Court of Appeals in Baskin v. Bogan, (7th Cir., Sept. 4, 2014), affirmed district court decisions striking down same-sex marriage bans in Indiana and Wisconsin. The unanimous opinion, written by Judge Posner in his unquely cogent style, takes on and counters each argument in favor of same-sex marriage bans put forward by each state. He particularly emphasizes the protection-of-children argument on which Indiana relied exclusively:

The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction—that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

He derides Indiana's arguments, summarizing them as follows:

Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.

Moving to Wisconsin's ban, Judge Posner, quoting (among others) Justice Holmes and John Stuart Mill, counters each of four additional justifications the state puts forward for banning same-sex marriage-- tradition, the need to move cautiously, respect for the democratic process and damage to traditional marriage. Posner describes the last of these as an argument that "allowing [homosexuals] to marry degrades the institution of marriage (as might happen if people were allowed to marry their pets or their sports cars)...." He summarizes:

the grounds advanced by Indiana and Wisconsin for their discriminatory policies are not only conjectural; they are totally implausible.

As reported by the New York Times, yesterday's decision was handed donw only nine days after the court heard oral arguments in the case.

Catholic School Teacher Can Pursue Title VII Claim After Firing For In Vitro Fertilization

In Herx v. Diocese of Fort Wayne-South Bend, (ND IN, Sept. 3, 2014), Emily Herx, a former teacher at a Catholic school, sued under Title VII and the Americans With Disabiliteis Act after the diocese refused to renew her teaching contract because she became pregnant through in vitro fertilization. The Catholic Church considers in vitro fertilization immoral. The court granted the Diocese's motion to dismiss the ADA claim becuase no jury could reasonably find that she lost her job because of her infertility (her claimed disability). Instead it was because of her treatment for her disability. The court however refused to dismiss Herx's Title VII sex discrimination claim. First it concluded that the ministerial exception doctrine did not apply because Herx was not a "minister." It then went on to hold:

while a jury could find that a gender-neutral rule against in vitro fertilization prompted her nonrenewal, a jury also could find that a male teacher’s contract would have been renewed under the same circumstances.

The Fort Wayne Gazette reports on the decision.

Protestant Navy Chaplains Denied Class Action Certification

Yesterday the D.C. federal district court issued yet another opinion in In re Navy Chaplaincy, (D DC, Sept. 4, 2014)-- a long running case that has already generated over twenty district court and Court of Appeals opinions. As summarized by the court:

Plaintiffs, 65 current and former nonliturgical Protestant chaplains in the United States Navy, their endorsing agencies, and a fellowship of non-denominational Christian evangelical churches... , bring this consolidated action against the Department of the Navy and several of its officials.... Plaintiffs allege that Defendants discriminated against non-liturgical Protestant chaplains on the basis of religion, maintained a culture of denominational favoritism in the Navy, and infringed on their free exercise and free speech rights.

In this most recent decision the court first held that it lacks jurisdiction over plaintiffs' challenge to an alleged denominational quota system for chaplains because the Navy many years ago eliminated the policy rendering the challenge to it moot. It then went on to deny class certification as to the remainder of the claims, concluding that plaintiffs "have not presented 'significant proof' of any specific unconstitutional policy or practice that applied to them across the board as a class and produced a common legal injury."

Thursday, September 04, 2014

Settlement Reached In Synagogue's Suit Challenging Historic Site Designiation

The AP reports that a Florida, federal district court last week approved a settlement agreement in Temple B'nai Zion, Inc. v. City of Sunny Isles Beach, Florida, a case on remand from the 11th Circuit (see prior posting). In the case the synagogue claims that its designation as an historic site-- thereby preventing demolition and construction of a new building on the site-- violated its relgious freedom rights. The Temple was declared a landmark because of a 2004 meeting of Holocaust survivors there. Three of the city commission members involved in the decision were former members of the synagogue before it moved from embracing Conservative Judaism to becoming an Orthodox synagogue. The hearing on the synagogue's objections to the designation was filled with comments from individuals unhappy about actions of the synagogue's rabbi. Under the settlement, the historic landmark designation remains, but the Temple will be permitted to make certain structural changes. The city will also give the Temple a transferable development right elsewhere in the city.

Tax Court Rejects Minister's Attempt To Shield Income From Taxes

In Cortes v. Commissioner, (T.C., Sept. 3, 2014), the United States Tax Court rejected a claim by a minister of the Seventh Day Sabbath Church that an arrangement invovling setting up a ministry, creation of a corporation sole and taking a vow of poverty excused him from paying income tax on amounts paid to his ministry but used for his family's personal expenses. The minister's tax avoidance scheme, promoted by Frederic and Elizabeth Gardner, has been the subject of litigation in prior cases. [Thanks to Steven H. Sholk for the lead.]

District Court Upholds Louisiana's Same-Sex Marriage Ban

A Louisiana federal district court yesterday became only the second court (see prior posting) after the U.S. Supreme Court's Windsor decision to uphold a state law banning same-sex marriage. In Robicheaux v. Caldwell, (ED LA, Sept. 3, 2014), the court rejected the argument that heightened scrutiny should apply, and concluded that Louisiana had a rational basis for addressing the meaning of marriage through the democratic process. It held:

This Court is persuaded that Louisiana has a legitimate interest...whether obsolete in the opinion of some, or not, in the opinion of others...in linking children to an intact family formed by their two biological parents....

This Court has arduously studied the volley of nationally orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue on same-sex marriage. The federal court decisions thus far exemplify a pageant of empathy; decisions impelled by a response of innate pathos. Courts that, in the words of Justice Scalia in a different context ... appear to have assumed the mantle of a legislative body.

SCOTUSblog reports on the decision.

New Website Launched To Cover Catholic Issues

Boston Globe Media Partners on Tuesday announced the launch of a new website devoted to reporting on issues related to the Catholic Church and Catholic lifestyles. The site, titled Crux, will provide national and international news and analysis of the Church and Catholic practice. A link to Crux has been added to the Religion Clause sidebar under "Resources."

Wednesday, September 03, 2014

New EEOC Chair Appointed

The Equal Employment Opportunity Commission announced yesterday that President Obama has appointed EEOC vice-chair Jenny R. Yang as Chair of the EEOC. She will be the first Asian-American chair of the Commission. She replaces Jacqueline A. Berrien. The EEOC enforces federal employment anti-discrimination laws, including laws prohibiting religious discrimination.

In Germany, New Tax Rules Lead To Departures From Churches

Reuters reported last week that a change in Germany's tax law has prompted a large jump in the number of Germans leaving both Catholic and Protestant churches. Under Germany's tax law, church members are assessed another 8% or 9% which goes to pay the salaries of clergy, charitable services and other expenses of the church. While the church tax applies to all income, apparently many Germans have paid it only on their salaries and not on their investment income. Under tax changes that become effective next year, banks will automatically withhold church taxes from accounts in which individuals earn more than 801 Euros in capital gains. Many are leaving their church rather than pay the increased amounts. Leaving a church means that an individual is no longer entitled to receive sacraments or marry in the church, or receive a religious burial. [Thanks to Scott Mange for the lead.]

Saudi Appeals Court Upholds Harsh Blasphemy Sentence

AFP reports that an appellate court in Saudi Arabia has upheld a sentence of ten years in jail, 1000 lashes, and a fine equivalent to nearly $267,000 (US) imposed on the founder of a liberal human rights group. The sentence was imposed on Raef Badawi for "creating a website insulting Islam," and criticizing the religious police.

Indian Court Bans Religious Animal Sacrifices

In the Indian state of Himachal Pradesh, a 2-judge bench of the High Court has banned the traditional practice of animal sacrifice in any place of public religious worship. The decision (full text) handed down on Sept. 1 reads in part:

Sacrifice causes immense pain and suffering to the innocent animals. The innocent animals cannot be permitted to be sacrificed to appease the God/deity in a barbaric manner. Compassion is basic tenets in all the religions. The practice of animal sacrifice is a social evil and is required to be curbed.

The decision also calls into question whether animal sacrifice "can be termed as religious practice." According to the Business Standard:

Gory goat slaughtering festivals take place in winters across Himachal Pradesh. Often, scores of goats are butchered in single day to appease village deities.

Today's Times of India reports on reactions to the decision.

Tuesday, September 02, 2014

British Group Rallies Against Rising Anti-Semitism

In Britain on Sunday, some 3500 to 4500 people gathered in front of London's Royal Courts of Justice to protest rising anti-Semitism in Britain. As reported by International Business Times, the rally was organized by the Campaign Against Anti-Semitism (CAAS) which said that Jews in Britain are facing levels of anti-Semitism not seen in almost a century. CAAS called on police to demonstrate a zero-tolerance for anti-Semitism.

American Muslims Seek U.S. Protection During Hajj

Last week, a coalition of 28 Muslim groups in the United States wrote Securetary of State John Kerry (full text of letter) asking for U.S. action to protect the safety of American Muslims who will travel to Saudi Arabia in October on Hajj. According to the letter, in the past protection was lacking:

In 2013, a group of American Muslims from Dearborn, Michigan, was attacked during the Hajj by a group of Australian pilgrims because they are Shias, a minority denomination within Islam. The Americans were physically and verbally assaulted—including men being strangled and women threatened with rape—and alleged that though Saudi authorities were present, these authorities did not intervene or take their complaints seriously. Further, the victims allege that Saudi authorities deleted cell phone video recordings of the attack. The victims sought assistance from the U.S. Embassy, but disturbingly their phone calls were not returned.

RNS reports on the letter. On Sunday, without mentioning the letter, the State Department posted a Hajj Fact Sheet on its website. The section on Safety mentions problems of fraud and theft, but does not allude to physical attacks. The State Department's website also has a general page on "Help for U.S. Citizen Victims of Crime Overseas."

More Recent Prisoner Free Exercise Cases

In Kilgore v. Gerlicher, 2014 U.S. Dist. LEXIS 119578 (D MN, Aug. 8, 2014), a Mionnesota federal magistrate judge recommended dismissing an inmate's claim that his free exercise rights were substantially burdened by the Department of Corrections designating Nation of Gods and Earths as a security threat group.

In Green v. Hawkinberry, 2014 U.S. Dist. LEXIS 120020 (WD PA, Aug. 28, 2014), a Pennsylvania federal magistrate judge permitted an inmate to proceed against all but one defendant with his complaint that he was wrongfullydenied a kosher diet.

In Muhammad v. Pearson, 2014 U.S. Dist. LEXIS 120396 (ED VA, Aug. 22, 2014), a Virginia federal district court dismissed a complaint by a Nation of Islam inmate that he was denied study guides, DVD's, and a second NOI meeting. The court did not dismiss, pending a motion to do so, plaintiff's complaint that he was unable to have NOI meetings while on lockdown.

In Guillory v. Ellis, 2014 U.S. Dist. LEXIS 120709 (ND NY, Aug. 29, 2014), a New York federal district court adopted a magistrate's recommendation and dismissed a suit in which plaintiff claimed defendant caused him to miss one religious service and there was a shortened Purim celebration.

In Shabazz v. Giurbino, 2014 U.S. Dist. LEXIS 121037 (ED CA, Aug. 28, 2014), a California federal magistrate judge recommended that a Muslim inmate be allowed to move forward with some of his claims alleging that he received Halal meals containing meat only once a day (the others were vegetarian) while Jewish prisoners received kosher meat meals three times a day.