Religion Clause

Friday, July 03, 2015

4th of July-- A Biblical Focus From Israeli Prime Minister

Israeli Prime Minister Benjamin Netanyahu has an interesting U.S. 4th of July narrative, more religious than the Independence Day speeches usually heard in American venues. Speaking (full text) on Tuesday at U.S. Independence Day celebrations at US Ambassador to Israel Daniel Shapiro's residence, Netanyahu said in part:

The Founding Fathers of America were inspired by the Bible, and specifically by the Book of the Exodus, by the dream of building freedom in a new Promised Land. And as you stand in the Chamber of the American Congress, you see right across you the image of one man - Moses, with a quote from the Bible.

And since the establishment of the United States, that's two and a half centuries, the vision of justice and the vision of peace espoused by the Prophets of Israel served as a guiding light for Americans from Thomas Jefferson to Abraham Lincoln to Martin Luther King to many others seeking to form a more perfect union.

Afghan Appeals Court Overturns Death Sentences In Mob Killing of Falsely-Accused Quran Burner

According to CNN, an Afghanistan appellate court in a secret session has overturned the death sentences of four men who were convicted in May in the brutal mob killing of Farkhunda, a 27-year old woman who was falsely accused of burning the Qur'an. (See prior posting.) The report which CNN received yesterday from a judge with knowledge of the decision, says that 3 of the men were re-sentenced to 20-year terms and one to 10 years.

ACLU Sues Kentucky Clerk Who Is Refusing To Issue Marriage Licenses

Yesterday the Kentucky ACLU filed a federal class-action lawsuit against Rowan County Clerk Kim Davis who is refusing to issue marriage licences to anyone because of her religious objections to issuing them to same-sex couples. (ACLU press release). The complaint (full text) in Miller v. Davis, (ED KY, filed 7/2/2015) alleges that Davis' refusal "constitutes a substantial, direct and continuous infringement upon Plaintiffs’ fundamental right to marry," as well as amounting to a violation of the Establishment Clause. AP reports on the lawsuit.

ACLU Uses Indiana RFRA In Suit Challenging New Restrictions On Sex Offenders

The ACLU of Indiana filed a lawsuit yesterday challenging the prohibition in a newly enacted state law that keeps certain registered sex offenders from attending religious services. (ACLU press release). At issue is Indiana Code § 35-42-4-14 (eff. July 1, 2015) that bars certain registered sex offenders from entering school property. The complaint (full text) in John Doe I v. Allen and Elkhart County Prosecutors, (IN Super. Ct., filed 7/1/2015), alleges in part:

This statute ... [bans serious sex offenders] from going to worship in churches, synagogues, mosques, or other religious buildings that are located on the same as property parochial schools or certain preschool programming. Banning sex offenders from ... church on Sunday, because there are students in a school on the same grounds on Monday, is irrational and violates the due process of law protected by the Fourteenth Amendment.... It also violates Indiana’s newly enacted Religious Freedom Restoration Act, Indiana Code § 34-13-9-0.7, et seq. (eff. July 1, 2015), which prohibits government from imposing a substantial burden on a person’s exercise of religion absent a compelling governmental interest and a showing that the action is the least restrictive means to further that interest.

AP reports on the lawsuit and reactions to it.

Suit Against Navy By Humanist Chaplain Applicant Can Proceed on Two Grounds

Heap v. Carter, (ED VA, July 1, 2015), is a suit brought by Dr. Jason Heap, a certified Humanist Celebrant, and The Humanist Society, his endorsing agency, challenging the U.S. Navy's denial of Heap's application to become a Navy Chaplain. Plaintiffs alleged that the Navy and Department of Defense have an unconstitutional policy of discrimination against Humanism. In a 75-page opinion, a Virginia federal district court ultimately allowed Dr. Heap to move ahead with his Establishment Clause and Equal Protection/ Substantive Due Process challenges to the Navy and Department of Defense's actions. However the court dismissed challenges brought under other parts of the 1st Amendment, the No Religious Test clause, and RFRA, dismissed The Humanist Society as a plaintiff for lack of standing and on ripeness grounds, and dismissed claims against the individual defendants.

Thursday, July 02, 2015

Inspired By Supreme Court Decision, Montanans Apply For License For Polygamous Marriage

AP reported yesterday that in Billings,. Montana, a man and his two wives, citing the Supreme Court's Obergefell decision, have applied for marriage licenses to legitimize their polygamous marriage. The man, Nathan Collier, a former Mormon who was excommunicated for polygamy, said: "It's about marriage equality, You can't have this without polygamy." Officials in the Yellowstone County clerk's office are consulting with the county attorney's office before giving a final answer. The county's chief civil litigator says that his research so far shows that "the law simply doesn't provide for that yet." [Thanks to How Appealing for the lead.]

7th Circuit Affirms Denial of Preliminary Injunction In Wheaton College Challenge To Contraceptive Mandate Accommodation

In Wheaton College v. Burwell, (7th Cir., July 1, 2015), the U.S. 7th Circuit Court of Appeals affirmed the denial of a preliminary injunction, upholding the Obama administration's accommodation of religious non-profits' objections to the Affordable Care Act's contraceptive coverage mandate. Wheaton College argued that the government is using its health plan to get around its objections to furnishing contraceptive coverage. Under the regulations, when the government informs the non-profit's insurer of the organization's religious objections, the insurer must offer coverage directly to plan participants. The court said in part:

We can’t order the U.S. government not to ask particular insurers to insure Wheaton’s students and employees— especially the insurers that are experienced in dealing with the members of the Wheaton community. As for Wheaton’s apparent preference that the government discover through its own research the names of Wheaton’s insurers, we cannot imagine that insistence on this roundabout path to imparting essential information to the government could justify a preliminary injunction, at least in the absence of any explanation by Wheaton of why it thinks the difference between direct and roundabout identification of its insurers pertinent to its religious commitments.

[Thanks to How Appealing for the lead.]

Courts Move To Finalize Compliance With Obergefell, With Scattered Resistance

In the wake of the Supreme Court's Obergefell decision, the U.S. 5th Circuit Court of Appeals yesterday issued opinions in three same-sex marriage cases pending on appeal, ordering federal district courts in Mississippi (Campaign for Southern Equality v. Bryant), Louisiana (Robichearx v. Caldwell) and Texas (DeLeon v. Abbott) to enter final judgments for plaintiffs challenging same-sex marriage bans by July 17. In the Louisiana case, the court noted that speedy action was particularly necessary because of the declining health of one of the plaintiffs.

In Alabama, a federal district court judge issued an opinion yesterday in Strawser v. Strange, clarifying that the court's preliminary injunction barring enforcement of Alabama laws barring same-sex marriage is now in effect. Meanwhile, AP reports scattered resistance to the Supreme Court's decision, with a a few judges and clerks in Alabama, Kentucky and Texas deciding to stop issuing any marriage licenses to anyone.

Suit Challenges Library Meeting Room Rules

In a lawsuit filed last Tuesday, a Christian advocacy group has challenged rules regarding the use of meeting rooms at the Lawrence, Massachusetts public library. The complaint (full text) in Liberty Counsel, Inc. v. City of Lawrence, Massachusetts, (D MA, filed 6/30/2015), challenges the Meeting Room Policy which provides: "Political and religious groups may use the Library’s meeting rooms for administrative purposes but shall not be allowed use for the sake of proselytizing, campaigning, or otherwise influencing people to a particular belief or point of view." The policy also prohibits use of meeting rooms for religious services. The complaint alleges that the policy violates the 1st and 14th Amendments as well as provisions of the state constitution. A Liberty Counsel press release announced the filing of the lawsuit.

Priest Sues Claiming Discrimination After Molestation Charges Are Dropped

As reported by the St. Louis Post-Dispatch, Catholic priest Xiu Hui "Joseph" Jiang, who had been charged with abusing a boy, but then had charges dropped, filed a federal lawsuit last week charging the boy's parents and others with religious and ethnic discrimination. Jiang separately had been charged with having improper contact with a teenage girl and paying hush money to her family. Those charges have also been dropped. The complaint (full text) in Jiang v. Porter, (ED MO, filed 6/25/2015), alleges in part:

This is a case of false accusations that have destroyed the life of a promising young man and priest. Father Xiu Hui “Joseph” Jiang (“Fr. Joseph”) fled religious persecution in his native land of China, only to face religious persecution in America in the form of unconstitutional discrimination by state officials. Defendants A.M. and N.M. falsely and maliciously accused Fr. Joseph of sexually abusing their minor son for the crass motive of monetary gain. Acting in conjunction with A.M. and N.M., officers Tonya Porter and Jaimie Pitterle engaged in invidious religious discrimination against Fr. Joseph under color of law, targeting him for differential treatment and selective prosecution because he is a Catholic priest. Defendants SNAP, David Clohessy, and Barbara Dorris have led a shameless smear campaign in the St. Louis community against Fr. Joseph, relentlessly accusing him of molesting the same minor child, with malice and reckless disregard for the actual facts of the case. All defendants fomented and participated in a tragic rush to judgment against Fr. Joseph, and all conspired to deprive Fr. Joseph of his constitutional rights,

Wednesday, July 01, 2015

Another Suit Against Local Michigan Police For Forcing Removal of Hijab During Booking

MLive reports that a federal lawsuit was filed yesterday against the Dearborn, Michigan police department for requiring a Muslim woman arrested on traffic charges to remove her headscarf (hijab) during the booking process. The complaint (full text) in Aldhalimi v. City of Dearborn, (ED MI, filed 6/30/2015), contends that when police booked plaintiff for an unpaid parking violation, they required her to remove her hijab to be photographed despite her religious objections. This is the third similar suit against local Michigan law enforcement officials this year.

Oklahoma Supreme Court Says 10 Commandments Monument Is Unconstitutional

In Prescott v. Oklahoma Capitol Preservation Commission, (OK Sup. Ct., June 30, 2015), the Oklahoma Supreme Court in a 7-2 decision held that a Ten Commandments Monument placed on the statehouse grounds must be removed. The Court held that even though no state funds were used to acquire the monument, it still operates for the use, benefit or support of a sect or system of religion in violation of Oklahoma Constitution Art. 2, Sec. 5. Rejecting the legislature's claim that the monument serves a non-religious historical purpose, the Court said: "the Ten Commandments are obviously religious in nature and are an integral part of the Jewish and Christian faiths." (See prior related posting.)

ACLU Sues Louisiana Governor Over Order On Protection of Anti-Gay Marriage Beliefs

The ACLU of Louisiana announced yesterday that it has filed suit in Louisiana state court challenging Governor Bobby Jindal's May 19 Marriage and Conscience Order. The challenged executive order prohibits government departments, commissions, boards, agencies and local governments from denying various benefits because a person acts in accordance with his religious belief that marriage should be only between one man and one woman. (See prior posting.) The complaint (full text) in ACLU Foundation of Louisiana v. Jindal, (LA Dist. Ct., filed 6/30/2015), contends that Jindal's Order "is an unauthorized usurpation of the powers vested in the legislature." As reported by the Bayou Buzz, Gov. Jindal issued a statement in response to the lawsuit, saying in part: "The ACLU used to defend civil liberties, now it appears they attack them." Meanwhile on Monday the Governor's Office posted on its website a legal memorandum (full text) on religious liberty in light of the Supreme Court's marriage equality ruling.

Ecclesiastical Abstention Doctrine Prevents Suit Over Catholic Health Care Directive

In Means v. United States Conference of Catholic Bishops, (WD MI, June 30, 2015), plaintiff sued for negligence claiming that policies promulgated by the U.S. Conference of Catholic Bishops and adopted by Catholic Health Ministries, the sponsor of a health care system, resulted in her receiving improper information and treatment for a condition that led to a miscarriage. She was not informed of the serious risk to her health if she continued her pregnancy after a membrane rupture and was not informed of the option of terminating her pregnancy. A Michigan federal district court held that it lacked jurisdiction under Michigan's long-arm statute over USCCB. It held that the ecclesiastical abstention doctrine precludes it from adjudicating the claims against the other defendants:

Plaintiff has not sufficiently demonstrated that Michigan law recognizes a duty to a patient by a sponsor of a hospital network.... Even if Plaintiff could articulate a cognizable legal duty, the Court could not adjudicate the elements of breach and proximate cause because it necessarily implicates the ecclesiastical abstention doctrine... which prevents the Court from interpreting religious doctrinal texts. Plaintiff has not presented a way for this Court or a jury to analyze CHM’s duty, breach, or causation without reference to the text of the [Ethical and Religious Directives for Catholic Health Care Services], which are an expression of Catholic doctrine.

California's Governor Signs New Law Ending Religious and Personal Belief Exemptions To Immunization Requirements

California Governor Jerry Brown yesterday signed SB 277 (full text), a law requiring school students (other than those being home-schooled) to be immunized against ten specific diseases, and removing California's prior personal belief and religious belief exemptions. Under the new law, only medical exemptions, certified by a licensed physician, are permitted. The personal belief exemption, however, is preserved for any additional diseases that the Department of Health by regulation adds to the ten listed in the statute. In his signing statement (full text), Gov. Brown said in part:

The science is clear that vaccines dramatically protect children against a number of infectious and dangerous diseases.

Los Angeles Times reports on the governor's action.

Tuesday, June 30, 2015

Supreme Court Orders Stay of Sorts In Non-Profit Contraceptive Mandate Case

In Zubik v. Buwell, the U.S. 3rd Circuit Court of Appeals upheld the Obama Administration's rules accommodating the Affordable Care Act contraceptive coverage mandate to religious non-profits. (See prior posting.) Plaintiffs sought a stay from the Supreme Court, and in April Justice Alito issued an order temporarily staying the mandate as to the Catholic Diocese of Erie and the Catholic Diocese of Pittsburgh along with affiliated charities and schools in the two dioceses (See prior posting.) He then referred the plaintiffs' motion to the full Court, and yesterday the Court issued the following Order :

The application for an order recalling and staying the issuance of the mandate of the Court of Appeals pending the filing and disposition of a petition for a writ of certiorari, having been submitted to Justice Alito and by him referred to the Court, the application as presented is denied. The Court furthermore orders: If the applicants ensure that the Secretary of Health and Human Services is in possession of all information necessary to verify applicants’ eligibility under 26 CFR §54.9815-2713A(a) or 29 CFR §2590.715-2713A(a) or 45 CFR §147.131(b) (as applicable), the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of their petition for certiorari.

Nothing in this interim order affects the ability of the applicants’ or their organizations’ employees to obtain, without cost, the full range of FDA approved contraceptives. Nor does this order preclude the Government from relying on the information provided by the applicants, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act. See Wheaton College v. Burwell, 573 U. S. ___ (2014).

This order should not be construed as an expression of the Court’s views on the merits. Ibid.

Justice Sotomayor would deny the application.

School District Settles Anti-Semitic Harassment Claims For $4.48M

The New York Times reported yesterday that upstate New York's Pine Bush School District has agreed to a $4.48 million settlement in a suit against it by five current and former Jewish students who claimed pervasive anti-Semitism. The suit claimed that school officials showed deliberate indifference to anti-Semitic harassment from fellow-students in 3 of the district's schools. The settlement also calls for teacher and staff training on recognizing and reporting anti-Semitism, revision of policies on bullying and discrimination, and curricular reform. (See prior related posting.)

Colorado Supreme Court Invalidates Choice Scholarship Pilot Program

In a fragmented decision in Taxpayers for Public Education v. Douglas County School District, (CO Sup. Ct., June 29, 2015), the Colorado Supreme Court struck down Douglas County's elaborate Choice Scholarship Pilot Program. The Program creates a public Choice Scholarship Charter School to which public funds are paid. Then through scholarship awards 75% of those funds are shared with the Charter School student's Private School Partner (often a religiously sponsored institution) which is the student's actual school.

Chief Justice Rice wrote the Court's plurality opinion for 3 justices, concluding that the scholarship program is unconstitutional under Art. IX, Sec. 7 of the Colorado Constitution that prohibits the state from using public money to fund sectarian schools. The plurality dismissed the other challenge to the Program-- that it violates the state's Public School Finance Act of 1994-- concluding that the legislature did not intend to imply a private right of action under that law and so petitioners lack standing.

Justice Marquez concurred in the result, filing an opinion concluding that the Scholarship Program violates the School Finance Act and that petitioners have taxpayer standing to challenge the program.

Justice Eid, in an opinion joined by two other Justices, argued that the scholarship program was permissible under Art. IX, Sec. 7. In addition she argued that the court should have examined whether Art. IX, Sec. 7 of the state Constitution is unconstitutional under the federal Constitution because of the provision's anti-Catholic bias.

Fox31 reports on the decision.

Monday, June 29, 2015

Texas AG, Critical of Obergefell, Issues Opinion On Religious Accommodation For Clerks and Judges

Texas Attorney General Ken Paxton issued a strong statement (full text) on Friday criticizing the U.S. Supreme Court's decision on same sex marriage, saying in part:

Today’s ruling by five Justices of the U.S. Supreme Court marks a radical departure from countless generations of societal law and tradition. The impact of this opinion on our society and the familial fabric of our nation will be profound. Far from a victory for anyone, this is instead a dilution of marriage as a societal institution.

What is most disturbing is the extent to which this opinion is yet another assault on the actual text of the U.S. Constitution and the rule of law itself.... The truth is that the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely-held religious beliefs about marriage.

Then on Sunday, Paxton issued an Attorney General's Opiinion (full text) on the right of public officials to assert religious objections to issuing marriage licenses or performing same-sex marriages. His statement (full text) accompanying the issuance of the opinion is a good deal more strident than the full opinion itself. Paxton's statement says in part:

A ruling by the U.S. Supreme Court is considered the law of the land, but a judge-made edict that is not based in the law or the Constitution diminishes faith in our system of government and the rule of law.

Now hundreds of Texas public officials are seeking guidance on how to implement what amounts to a lawless decision by an activist Court while adhering both to their respective faiths and their responsibility to uphold and defend the U.S. Constitution. Here is where things currently stand:

Pursuant to the Court’s flawed ruling, the U.S. District Court for the Western District of Texas issued an injunction against the enforcement of Texas marriage laws that define marriage as one man and one woman and therefore those laws currently are enjoined from being enforced by county clerks and justices of the peace. There is not, however, a court order in place in Texas to issue any particular license whatsoever – only the flawed direction by the U.S. Supreme Court on Constitutionality and applicable state laws.

Importantly, the reach of the Court’s opinion stops at the door of the First Amendment and our laws protecting religious liberty

Paxton's opinion itself carefully provides that religious accommodation "may" be permitted:

A county clerk has a statutory right to delegate a duty to a deputy clerk, including theissuance of same-sex marriage licenses that would violate the county clerk's sincerely held religious beliefs. Regarding deputy clerks and other employees, state and federal employment laws allow them to seek reasonable accommodation for a religious objection to issuing same-sex marriage licenses. And under the Religious Freedom Restoration Acts, deputy clerks and other employees may have a claim that forcing the employee to issue same-sex marriage licenses over their religious objections is not the government's least restrictive means of ensuring a marriage license is issued, particularly when available alternatives would not impose an undue burden on the individuals seeking a license.... Importantly, the strength of any claim under employment laws or the Religious Freedom Restoration Acts depends on the particular facts of each case....

Factual situations may arise in which the county clerk seeks to delegate the issuance of same-sex marriage licenses due to a religious objection, but every employee also has a religious objection to participating in same-sex-marriage licensure. In that scenario, were a clerk to issue traditional marriage licenses while refusing to issue same-sex marriage licenses, it is conceivable that an applicant for a same-sex marriage license may claim a violation of the constitution.

If instead, a county clerk chooses to issue no marriage licenses at all, it raises at least two questions. First, a clerk opting to issue no licenses at all may find himself or herself in tension with the requirement under state law that a clerk "shall" issue marriage licenses to conforming applications.

Moving then to the question of whether judges and justices of the peace may refuse on religious grounds to conduct same-sex marriage ceremonies, Paxton says in part:

Under the Religious Freedom Restoration Acts, justices of the peace and judges may claim that the government forcing them to conduct a same-sex wedding ceremony over their religious objection, when other authorized individuals have no objection, is not the least restrictive means of the government ensuring that the ceremonies occur, assuming that is compelling governmental interest. Again, the strength of any such claim depends on the particular facts.

The Houston Chronicle reports on developments.