Britain's Supreme Court Punts On Whether Narrow Abortion Law Conscience Rights Violate Religious Freedom

In Greater Glasgow Health Board v. Doogan, (UK SC, Dec. 17, 2014), the United Kingdom's Supreme Court gave a narrow interpretation to the conscience clause in Britain's Abortion Act 1967, but left open the question of whether that interpretation violates religious freedom rights or amounts to religious discrimination.  Section 4(1) of the Abortion Act provides that, with certain exceptions:

no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection....

In a suit by two Catholic midwives who worked as labor-ward coordinators, the Court held that "participate in" should be read narrowly:

It is unlikely that, in enacting the conscience clause, Parliament had in mind the host of ancillary, administrative and managerial tasks that might be associated with those acts. Parliament will not have had in mind the hospital managers who decide to offer an abortion service, the administrators who decide how best that service can be organised within the hospital..., the caterers who provide the patients with food, and the cleaners who provide them with a safe and hygienic environment. Yet all may be said in some way to be facilitating the carrying out of the treatment involved. The managerial and supervisory tasks carried out by the Labour Ward Co-ordinators are closer to these roles than they are to the role of providing the treatment which brings about the termination of the pregnancy. “Participate” in my view means taking part in a “hands-on” capacity.

However, in an important qualification, the Court said:

So, even if not protected by the conscience clause in section 4, the petitioners may still claim that, either under the Human Rights Act or under the Equality Act, their employers should have made reasonable adjustments to the requirements of the job in order to cater for their religious beliefs. This will, to some extent at least, depend upon issues of practicability which are much better suited to resolution in the employment tribunal proceedings (currently sisted pending the resolution of this case) than in judicial review proceedings such as these.

The Court also issued a press release summarizing the decision, and BBC News reports on the decision. [Thanks to Scott Mange for the lead.]

Chabad of California Liable For $845K Damages Under False Claims Act

In United States ex. rel. Kozak v. Chabad-Lubavitch, Inc., (ED CA, Dec. 9. 2014), a California federal district court granted summary judgment in a False Claims Act  qui tam action, finding Chabad of California liable for $844,985 in treble damages and statutory penalties.  The court concluded that Chabad of California misappropriated Department of Homeland Security grant funds intended to pay for video surveillance and other security equipment for Chabad and two of its affiliated institutions. (See prior related posting.) Chabad executed documents assuring the government that it would comply with specific financial management standards in receiving advances of the grant funds to assure that the funds would be used for the purposes for which they were awarded. However Chabad had no written financial management procedures, deposited the grant funds into its general checking account and used $272,495 of the funds for non-grant purposes.

While Chabad argued that there were triable issues of fact as to whether it submitted false claims "knowingly," the court said:

The undisputed facts in this matter show that Chabad knew about the requirements attendant to NSG Program grants in general and to drawdown advance requests in particular, yet had no compunction whatsoever in failing to adhere to those requirements. Under the circumstances, it is clear to the Court that Chabad acted at minimum “knowingly” as defined by the FCA.

The court did not grant summary judgment against two Chabad affiliates that were also defendants, finding that triable issues of fact remain as to their liability.  Jewish Journal reports on the court's decision.

DOJ Announces Settlement of RLUIPA Zoning Suit On Behalf of Minnesota Mosque

The Minnesota United States Attorney's Office announced yesterday that a settlement agreement in principle has been reached in its RLUIPA lawsuit against the City of St. Anthony Village (MN).  The suit challenges the city's refusal to issue a conditional use permit to the Abu Huraira Islamic Center-- with its largely Somali Muslim membership-- that sought to purchase an existing business center in an area zoned "light industrial," use the basement for worship space and continue to rent the remainder of the building to existing business tenants. (See prior posting.)  The agreement, which must still be approved by the St. Anthony City Council, the Justice Department and the federal district court, calls for the city to create a Planned Use Development that will allow the Islamic Center to use the basement space for worship. The city will also undertake various other initiatives to prevent future religious discrimination.  The Minneapolis Star-Tribune reports in more detail on the settlement terms.

Suit Challenges Creche On Indiana Courthouse Lawn

The Freedom from Religion Foundation, through the Indiana ACLU, filed suit in federal district court yesterday challenging the constitutionality of a life-size city-owned Nativity Scene on the lawn of the Franklin County Courthouse in Brookville, Indiana. The complaint (full text) in Freedom From Religion Foundation v. Franklin County, Indiana, (SD IN, filed 12/16/2014), (which includes a photo of the display) says that while the city also displays a series of plastic reindeer on the lawn, they are not part of the same display and are barely visible during the day when they are not lighted. Both the ACLU and FFRF have issued press releases announcing the filing of the lawsuit.

UPDATE: Under an agreement reached by the parties on Dec. 19, the Nativity Scene will remain up only until the day after Christmas, and FFRF will drop its request for a preliminary injunction. According to a press release by Thomas More Society, litigation on plaintiffs' request for a permanent injunction will now continue on a more normal time schedule.

Ohio School Mentorship Grants Are Required To Include Faith-Based Partners

The Ohio legislature earlier this year appropriated $10 million for a Career Advising and Mentoring Grant Program, specifying:

The program shall award competitive matching grants to provide funding for local networks of volunteers and organizations to sponsor career advising and mentoring for students in eligible school districts.... Eligible school districts are those with a high percentage of students in poverty, a high number of students not graduating on time, and other criteria as determined by the State Superintendent. Eligible school districts shall partner with members of the business community, civic organizations, or the faith-based community to provide sustainable career advising and mentoring services. [Am H.B. 483, Sec. 263.320]

The Cleveland Plain Dealer reports that at an informational meeting held in Cleveland last week, school districts that are potential applicants were told by an Ohio Department of Education representative that: "each application must include a school district (or charter school) plus a business and a place of worship or faith-based organization in its partnership." A United Way representative that sits on the advisory panel for the program said the same thing.  Americans United takes issue with the requirement-- added in Department of Education rule making-- that a faith-based organization is required to be part of each partnership.

Audio of 10th Circuit Arguments In 3 Non-Profit ACA Challenges Now Available

On Dec. 8, the U.S. 10th Circuit Court of Appeals heard oral arguments in three cases in which religious non-profits claim that the Obama Administration's regulations insufficiently accommodate their objections to the contraceptive coverage mandate under the Affordable Care Act.  The cases are Little Sisters of the Poor v. Burwell (see prior posting); Southern Nazarene University v. Burwell (see prior posting); and Reaching Souls International v. Burwell (see prior posting).  Links to audio recordings of all three arguments are now available from the court's website. [Thanks to Tom Rutledge for the lead.]

Satanic Temple Temporary Display At Michigan Capitol OK'd As Nativity Scene Plans Falter

Under rules of the Michigan State Capitol Commission (full text), temporary displays, which may not remain over night, may be scheduled on the Capitol grounds.  The Detroit Free Press reports that the Commission has approved a request from the Detroit chapter of the Satanic Temple for a display from Dec. 21-23. The display will consist of a snake wrapped around the Satanic cross presenting a book as a holiday gift. John Truscott, a member of the State Capitol Commission, said the Commission could not discriminate in approving applications, but added: "Personally, I think this is absolutely repulsive and I'm very frustrated by it. I don't appreciate a group trying to hijack a Christian holiday."

Meanwhile an already-approved request to place a Nativity Scene on the Capitol grounds is not moving ahead because the out-of-stater who requested it has been unable to find someone to remove the display each evening as required by state rules.  All of this takes place as the Michigan legislature is debating a controversial religious freedom bill. HB 5958, the Michigan Religious Freedom Restoration Act, has been approved by the House and is now under consideration by the state Senate.

Kerry Asks Vatican For Aid In Relocating Guantanamo Detainees

Catholic News Service reported that U.S. Secretary of State John Kerry, in Rome yesterday, met with Vatican Secretary of State Cardinal Pietro Parolin.  As part of their discussion, Kerry asked the Vatican for "support in the search for appropriate humanitarian solutions for the current detainees" at Guantanamo Bay so that the Obama Administration can move on its commitment to close the prison at Guantanamo.

9th Circuit En Banc Hears Arguments In "Innocence of Muslims" Case

The U.S. 9th Circuit Court of Appeals yesterday, sitting en banc, heard arguments in Garcia v. Google Inc.  Ten of the 11 judges on the en banc panel heard the oral arguments live.  It was announced that Judge Berzon was unable to be in the courtroom, but would listen to the video of arguments at a later date. The video of the full oral arguments is available on the 9th Circuit's YouTube channel.  In the case, the 3-judge panel, in a 2-1 decision, held that a preliminary injunction should be granted to require the controversial film "Innocence of Muslims" to be removed from YouTube. The suit was filed by Cindy Lee Garcia who acted in a portion of the film, had received death threats because of it, and claimed that the video posting amounted to a copyright infringement of her performance. (See prior posting.)  All the pleadings and amicus briefs filed with the 9th Circuit are available here. Courthouse News Service reports on yesterday's oral arguments. [Thanks to How Appealing for the lead.]

Pastor Brings Unusual Anti-Gay Marriage Protest To Courthouse

In Jackson, Mississippi on Friday, a Baptist pastor brought an unusual protest against the legalization of same-sex marriage to the federal courthouse. Christian Post reports that Reverend Edward James of Bertha Chapel Missionary Baptist Church brought a horse clothed in a wedding dress, with white flowers in its harness, to the courthouse, along with a protest sign reading in part: "Do you take this horse to be your unnatural wedded spouse.... This might even be possible if the ban on same-sex marriage is lifted...."  James hopes to change the mind of the federal district judge who struck down Mississipi's same-sex marriage ban last month.  The court's order has been stayed pending appeal. (See  prior posting.)

Report Released On Counseling of Sex Abuse Victims At Bob Jones University

Last week, Bob Jones University released a 300-page Final Report (full text) growing out of an investigation by the non-profit organization GRACE of the University's inadequate counseling of students who disclosed that they were sexually abused as a child, or were sexually abused after they enrolled at Bob Jones University or its Academy. Calling attention to the Report, yesterday's Daily Beast says in part:

At this point, there are so many sex scandals among conservative religious organizations, we’re no longer surprised by any of them. The latest revelation—that for decades, the evangelical Bob Jones University blamed victims of sexual assault and discouraged the prosecution of predators—should be shocking, but probably isn’t.

Yet, the recent report on BJU’s misconduct is different. Unusually for such a document, it makes a theological case against sexual abuse—but in so doing, it points to the deep roots of rape culture that may not be so easily uprooted.

Indictment Charges Fraud In Export of Supposed Halal Meat

On Dec. 5, the U.S. Attorney for the Northern District of Iowa announced the indictment of three related corporations and two corporate officials on charges of extensive fraud in the export sale of meat represented to be "halal." The indictment in United States v. Aossey, (ND IA, Dec. 5, 2014) (full text) charges defendants with conspiracy to make and use false statements on documents, sell misbranded meat, commit mail and wire fraud and sell misbranded meat.  This indictment expands on charges and individuals targeted in an earlier indictment in October.  (Background).  Export Law Blog summarizes the new charges against Midamar Corp., Islamic Services of America, ISA, Inc., Jalel Aossey and William Aossey:

The initial indictment charged William Aossey Jr. with falsely stating on export certificates that meat had been slaughtered in a Halal-certified slaughterhouse.

The new indictment adds Mr. Aossey’s sons and Midamar itself.... [A] central part of Midamar’s [defense] was that even if the meat was not slaughtered in Halal-certified slaughterhouses, the meat was still Halal meat as represented by the company.

The facts set forth in the new indictment seem to be directly aimed at this argument, going into the specific ways in which the slaughtered meat did not comport with the Halal standards that Midamar detailed on its own website.

Lawsuits Seek To Reform Curriculum of Ultra-Orthodox Jewish Schools

The Jerusalem Post yesterday reported at length on lawsuits in New York state and Quebec, Canada to force ultra-Orthodox Jewish schools to meet government-mandated secular curriculum standards. The suit in New York was brought by Naftuli Moster, founder of YAFFED (Young Advocates For Fair Education), while the suit in Quebec was brought by Yochanan Lowen, a former member of the Satmar hassidic community. In an article last month, the New York Times reported on the issue from the perspective of Mr. Moster.  The issue has also been a heated one in Belgium where educational authorities are pressing Orthodox Jewish school on the content of their secular curriculum.

Recent Articles of Interest

From SSRN:

• Jianlin Chen, Deconstructing the Religious Free Market, (3 Journal of Law, Religion and State 1-24 (2014)).
• Russell G. Pearce & Adam Winer, From Emancipation to Assimilation: Is Secular Liberalism Still Good for Jewish Lawyers?, (in Jews and the Law (Ari Mermelstein, Victoria Saker Woeste, Ethan Zaidoff & Marc Galanter, eds. 2014)).
• Ira C. Lupu & Robert W. Tuttle, Religious Exemptions and the Limited Relevance of Corporate Identity, (in The Rise of Corporate Religious Liberty (Zoe Robinson, Chad Flanders, and Micah Schwartzman, eds.), Oxford University Press, 2015).
• Katherine Kidd Young, The Institution of Marriage: Mediation of Nature and Culture in Cross-Cultural Perspective, (December 8, 2014).
• Khaled A. Beydoun, Antebellum Islam, (58:1 Howard L.J. (2015 Forthcoming)).
• Albert D. Spalding, Faith-Based Arbitration Clauses as a Global Alternative to Dispute Resolution, (Review of Business & Finance Studies, v. 5 (2) p. 1-8, 2014).
• John M. Breen, Abortion, Religion, and the Accusation of Establishment: A Critique of Justice Stevens' Opinions in Thornburgh, Webster, and Casey, (Ohio North University Law Review, Vol. 39, No. 3, 2013).
• Steven Douglas Smith, The 'Jurisdictional' Conception of Church Autonomy, San Diego Legal Studies Paper No. 14-177, Dec. 2014).
• Gregory S. Gordon, Speech Along the Atrocity Spectrum, (Georgia Journal of International and Comparative Law, Vol. 42, No. 2, 2014).
• Elizabeth A. M. Searing, Charitable (Anti)Trust: The Role of Antitrust Regulation in the Nonprofit Sector, (Nonprofit Policy Forum, 5(2), 261–288).
• Perry Dane, Prayer is Serious Business: Reflections on Town of Greece, (Rutgers Journal of Law and Religion, Forthcoming).

From SSRN (Non-U.S. Law):

• Hanna Lerner, Critical Junctures, Religion, and Personal Status Regulations in Israel and India, (Law & Social Inquiry, Volume 39, Issue 2, 387-415, Spring 2014).
• Aristidis Tsatsos, The Geopolitical Role of Orthodox Russia within a Planetary Context -- A Hellenic Perspective?, (September 27, 2014).
• Yuko Nishitani, Global Citizens and Family Relations, (Erasmus Law Review, Vol. 7, No. 3, 2014).
• Etah Fidelis Ewane, Rwanda Redux: The Latent Genocide in the Central African Republic and the Failure to Protect, (December 3, 2014).
• Paula Gerber, Kristine Tay & Adiva and Sifris, Marriage: A Human Right for All?, (2014 36(4) Sydney Law Review 643).
• Ivor Richardson, The Calculation of Interest, (20 New Zealand Journal of Taxation Law and Policy 231, 2014).
• Gerald Waltman, Prosecuting ISIS (December 11, 2014).

From elsewhere:

• Steven H. Sholk, A Guide To Election Year Activities of Section 501(c)(3) Organizations,(2014 update, PLI).

Backgrounder On Lawsuit By NJ Methodist Congregation Against United Methodist Church

The Record today carries a long article about a lawsuit filed this summer by Alpine Community Church (in Alpine, New Jersey) against the Greater New Jersey Annual Conference of the United Methodist Church over ownership of church property. Here are some excerpts from the article:

Here in one of America’s priciest ZIP codes, a bitter dispute is bubbling at a beloved local landmark over religion and money, property and race, spilling from its pews and into the courts.

At its heart is ownership of the Alpine Community Church, a sanctuary with a storied history, millions of dollars in assets, and a tiny congregation. Its trustees have voted to cut ties with the United Methodist Church and say they want to preserve it as a church for all who want to worship there..... 

Court papers attest to the turmoil, with trustees alleging church funds were used to fuel the “luxurious lifestyle” of a former pastor appointed by the conference, causing some members to stop attending services and making donations.....

The former pastor at the center of the controversy is the Rev. Hae-Jong Kim, who roughly six years ago, in his retirement, was assigned to serve the Alpine church part time. Kim was the first Korean-American bishop in the UMC but resigned that post nearly a decade ago as part of the resolution of an unrelated complaint filed against him.

The lawsuit accuses Kim of misusing church funds; trustees allege that when evidence of forged checks, missing donations and more was presented to the conference, nothing was done....

Recent Prisoner Free Exercise Cases

In Chavis v. United States, (3d Cir., Dec. 12, 2014), the 3rd Circuit affirmed the dismissal of an inmate's claim that a correctional officer's pat down search of his genital area violated his free exercise rights because his religion prohibits homosexual activity.

In Goninan v. Holmes, 2014 U.S. Dist. LEXIS 169213 (D OR, Dec. 4, 2014), an Oregon federal magistrate judge dismissed an inmate's challenge to the prison system's ban on the Satanic Bible and certain other Satanic publications.

In Powers v. Clarke, 2014 U.S. Dist. LEXIS 170322 (ED VA, Dec. 8, 2014), a Virginia federal district court dismissed an inmate complaint that the prison system classified the Nation of Gods and Earths as a gang rather than a spiritual organization.

In Hamilton v. Carr, 2014 Cal. App. Unpub. LEXIS 8811 (CA App., Dec. 11, 2014), a California appeals court affirmed the dismissal of an inmate's claim that a correctional officer violated California's Bane Act when he pulled plaintiff's kufi cap off his head and yelled "get out of here."

Congress Gives Final Passage To Defense Authorization Act Including Provisions On Mt. Soledad Transfer

On Friday, the Senate gave final approval and sent to the President for his signature H.R. 3979, the  National Defense Authorization Act for Fiscal Year 2015 (full text). The Act includes a provision (Sec. 2852) calling for the sale of the Mt. Soledad Veteran's Memorial to the privately incorporated Mount Soledad Memorial Association.  The provision, sponsored by Sen. Diane Feinstein, is intended to end the long-running litigation challenging the Memorial's cross as a violation of the Establishment Clause. (See prior posting.) Politico reports on the Act's passage.

The Act also contains provisions regarding the National Park System, including (Sec. 3051) a requirement that the Secretary of the Interior conduct studies to determine whether various sites should be designated as national parks.  Among these sites are properties in Flushing, New York relating to the history of religious freedom during the era of the signing of the Flushing Remonstrance; and Atlanta's West Hunter Street Baptist Church (background).

The Act as passed does not include provisions in an earlier House version relating to military chaplains and religious expression. (See prior posting.)

Saperstein Confirmed As International Religious Freedom Ambassador

In a roll call vote yesterday, the U.S. Senate confirmed the nomination of Rabbi David Saperstein to be Ambassador-at-Large for International Religious Freedom.  The vote was 62-35. All but one of the "Nay" votes were cast by Republicans.  As reported by The Forward, Saperstein is the first non-Christian to hold the international religious freedom ambassadorship.  Some conservative Christian groups had opposed Saperstein, who has been director of Reform Judaism's Religious Action Center, because of his disagreement with the Supreme Court's Hobby Lobby decision and his generally liberal views on other issues. (The Blaze, July 29, 2014).

Dallas Eases Restrictions On Feeding of Homeless; Settles Lawsuit

Last year, a Texas federal district court held that Dallas'  Food Establishment Ordinance imposing strict requirements on organizations feeding the homeless violates the Texas Religious Freedom Restoration Act. (See prior posting.) On Wednesday Dallas City Council, as part of a  settlement of the lawsuit, adopted amendments lightening the burdens on those feeding the homeless.  As reported by Think Progress:

The original Dallas ordinance required charities that wished to feed the homeless to provide bathrooms and running water, effectively restricting the groups to a handful of sites rather than allowing them to go to where the need was greatest. It also required them to register with the city no matter how large or small their food program might be, with the threat of a $2,000 fine for violators.....

Instead of running water and hand-washing facilities, street feeding programs may now use hand sanitizer. They only need to notify the city if they plan to serve more than 75 people, and must abide by some basic food safety guidelines.

According to the Dallas Morning News, the city also voted to pay a total of $250,000 for damages and attorneys fees to to Big Hart Ministries Association and Rip Parker Memorial Homeless Ministry.

Facebook Ad In Burma Lands Bar Managers In Jail For Insulting Religion

A court in Yangon, Burma yesterday denied bail to the owner and two managers of VGastro, a new upscale bar and tapas restaurant in the city's embassy area who are charged with insulting religion through an ad on the bar's Facebook page.  AFP reports that the offensive ad depicted a psychedelic mock-up of the Buddha wearing DJ headphones to promote a cheap drinks night.  The three defendants were charged with violating Myanmar Penal Code Sec. 295 (defiling a sacred object with the intent to insult religion) and Sec. 295A (insulting religious beliefs through written words or representations). Each charge carries a punishment of up to two years in prison.  The court ruled that these were no-bail offenses and remanded the men into custody until the next hearing on Dec.18.  A monk speaking for the Burmese Patriot Monks Union said: "We will wait and see what action the authorities take. We will do what we need to, if the authorities do not take action."