Supreme Court Grants Review In 7 Cases Challenging ACA Religious Non-Profit Accommodation On Contraceptive Coverage

The U.S. Supreme Court today granted certiorari in all seven of the cases pending before it that challenge the Obama Administration's Affordable Care Act regulations accommodating religious non-profit institutions that object to furnishing contraceptive coverage in their health insurance plans. The Court also consolidated the cases for review. (Order list.) The religious hospitals, colleges and charities involved all claim that the accommodation does not go far enough and still forces them to be complicit in furnishing contraceptive coverage. The Court limited its grant of certiorari to questions of whether the regulations' impact on the religious exercise of the non-profits violates the Religious Freedom Restoration Act. Becket Fund has links to the petitions for certiorari in all the cases, as well as to the reply and amicus briefs.  The cases are Zubik v. Burwell (3rd Circuit); Priests for Life v. Department of Health & Human Services (D.C. Circuit); Roman Catholic Archbishop v. Burwell (D.C. Circuit); East Texas Baptist University v. Burwell (5th Circuit); Little Sisters of the Poor v. Burwell (10th Circuit); Southern Nazarene University v. Burwell (10th Circuit); and Geneva College v. Burwell (3rd Circuit).  All of these circuit court decisions upheld the accommodation.  The two cases from the 8th Circuit which held that the accommodation violates RFRA (see prior posting) have not yet reached the Supreme Court. The Washington Post reports on the Court's action.

Senator Hatch Criticizes Supreme Court's Establishment Clause Jurisprudence

In September, Utah Senator Orrin Hatch (former chairman of the Senate Judiciary Committee) delivered the first in a planned series of 8 speeches on the Senate floor addressing Religious Liberty.  This past Wednesday, Hatch delivered the fourth speech in that series, this one on Faith and Public Life.  The full transcript was included in a press release from Hatch's office. The speech broadly attacks the notion that the Establishment Clause creates a wall of separation between church and state. He said in part:

[T]he ratification debates clarify that the ratifiers viewed official establishment of a particular church as direct financial support for a preferred sect, wholly distinct from the non-discriminatory support and encouragement of religion in general, which the Establishment Clause was not thought to limit....  For a century and a half, this understanding of the Establishment Clause endured with little challenge....

Unfortunately, religion was not spared from the destructive judicial activism of a Supreme Court that spun wildly out of control in the mid-twentieth century. A new crop of justices, disinclined to follow the traditional judicial role of applying the law as written, instead sought to remake the law according to their left-wing worldview. From inventing new rights for criminals to mandating nearly unlimited access to abortion on demand, the Court in this period left few stones unturned in its radical rewriting of the Constitution. The longstanding understanding of the Establishment Clause was one of the mid-century Court’s first victims. Abandoning the understanding of the Clause I have previously detailed—an understanding that was clearly supported by text, structure, history, and precedent—the Court turned the Establishment Clause on its head.

Wall of Separation blog criticizes Hatch's remarks.  Video of the three prior speeches in the series by Hatch are available on YouTube: Basic Principles (Sept. 22); Religious Liberty in the U.S. (Oct. 1); Status of Religious Freedom (Oct. 8).

Ben Carson Says Egyptian Pyramids Were Joseph's Grain Storage Facilities

AP reported yesterday that Republican Presidential candidate Ben Carson disagrees with historians and archaeologists about the origins of the Egyptian pyramids.  Virtually all academics agree that the pyramids were constructed as tombs for Egypt's Pharaohs.  Carson however, referring to the Biblical story of Joseph, insists that the pyramids were built as grain storage facilities when Joseph predicted a future famine to Pharaoh and advised storing grain in anticipation of it. (Genesis 41). Carson advanced his theory 17 years ago, but stood by his contention in comments at a book signing in Florida yesterday.  The Washington Post has extensive excerpts (as well as nearly 15 minutes of video) from Carson's speech 17 years ago, delivered at the commencement ceremonies at the Seventh Day Adventist affiliated Andrews University. In it Carson more broadly defended a literal reading of the Bible. [Thanks to Tom Rutledge for the lead.]

Cert. Filed In Refusal By State To Allow Church School To Participate In Playground Grant Program

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Trinity Lutheran Church of Columbia, Inc. v. Pauley.  In the case, the U.S. 8th Circuit Court of Appeals rejected arguments that Missouri's Blaine Amendments violate the free exercise, establishment and equal protection clauses of the federal Constitution. At issue was the refusal by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would allow it to resurface a playground at its day care and preschool facility on church premises. (See prior posting.) ADF issued a press release announcing the filing of the petition.

Russian Appeals Court Reverses Extremist Labeling of Qur'an Excerpts

In the Russian Far East yesterday, the Sakhalin Regional Court overturned the controversial ruling of a lower court that had labeled as "extremist material" excerpts from the Qur'an that were found in the book "Prayer To God."  RT reports that the ruling of the lower court, the Yuzhno-Sakhalinst City Court, had caused outrage in the Muslim community. Meanwhile the State Duma is moving to rush through a bill proposed by President Putin that would prevent the any portions of the  holy scriptures of Russia's four established religions-- Christianity's Bible, Judaism's Tanach, Islam's Qur'an and Buddhism's Kangyur-- from being included on Russia's Federal List of Extremist Materials,.

Utah Supreme Court Hears Arguments In Suit By FLDS Victim Against UEP Trust

The Utah Supreme Court yesterday heard oral arguments in another case growing out of Utah's attempts to reform the United Effort Plan Trust-- the trust that holds much of the property in Hildale, Utah, and Colorado City, Ariz., the home of many of the members of the polygamous FLDS Church.  According to the Salt Lake Tribune, plaintiff Elissa Wall is suing the Trust for damages growing out of her 2001 forced marriage to her 19 year old cousin.  She claims that sect leader Warren Jeffs who was also at that time trustee of the UEP Trust forced her into the marriage.  She argues that Jeff's role as trustee and as sect leader cannot be separated so the Trust is also liable for his actions even now that it has a different trustee.

Minnesota Jury Awards Clergy Sex Abuse Victim $8.1 Million

In one of the largest clergy sex abuse awards on record, a Ramsey County, Minnesota jury yesterday awarded $8.1 million to a plaintiff identified as Doe 30 in his suit against the Diocese of Duluth .  According to the Minneapolis Star-Tribune, Doe 30, as an altar boy in 1978, was abused by priest James Vincent Fitzgerald who is now deceased. Fitzgerald assaulted Doe 30 for two weeks in 1978 while taking him on a trip across Minnesota. The jury found that the Diocese was 60% responsible for the negligent supervision of Fitzgerald. Fitzgerald's order, the Oblates of Mary Immaculate, who were found 40% responsible, had previously been dismissed from the case. The verdict is the first under Minnesota's 2013 Child Victims Act which created a 3-year window for previously time-barred suits to be filed.

Supreme Court Hears Oral Arguments In Indigent Prisoner Fee Case

Yesterday, the U.S. Supreme Court heard oral arguments (full transcript of arguments)  in Bruce v. Samuels, a case raising an issue important to indigent prisoners suing to challenge their conditions of confinement, including infringements on their free exercise of religion. A provision in the Prison Litigation Reform Act caps monthly payments by prisoners proceeding in forma pauperis at 20% (28 USC 1915(b)(2)).  At issue in the case is whether a prisoner who files multiple cases or appeals has his monthly payment capped at 20% of his total income, or whether he must pay 20% of his income each month for each pending case. (See prior posting.) SCOTUSblog analyzed the oral arguments, saying that some of the justices' questions surprised the lawyers. USA Today also reports on the arguments.

Kim Davis Files Opening Brief With 6th Circuit

On Monday, Rowan County, Kentucky Clerk Kim Davis filed a 126-page opening brief (full text) in her appeal of the federal district court's various rulings against her that require her office to issue marriage licenses to same-sex couples despite her religious objections to doing so.  As summarized in the Liberty Counsel press release announcing the filing, the appeal asks the 6th Circuit to reverse the following district court rulings: (1) Preliminary injunction against Davis on August 12, 2015; (2) District court’s denying a preliminary injunction against the State Defendants on August 12, 2015; (3) Expanded injunction against Davis on September 3, 2015; and (4) Contempt order against Davis on September 3, 2015. (See prior related posting.) AP reports on developments.

House Resolution Urges Stepped-Up Action Against European Anti-Semitism

On Nov. 3, the U.S. House of Representatives unanimously passed H. Res. 354 (full text) urging the U.S. government to do more to combat growing anti-Semitism in Europe.  The Resolution, in part, encourages the U.S. government to work closely with European governments, law enforcement agencies, the OSCE  and EU to "formally recognize, partner, train, and share information with Jewish community security groups to strengthen preparedness, prevention, mitigation,
and response related to anti-Semitic attacks and to support related research initiatives." The Resolution's sponsor, New Jersey Rep. Chris Smith, issued a press release providing further background.

Court Again Dismisses Moorish American's Claim of Immunity

In Bey v. City of Tampa, 2015 U.S. Dist. LEXIS 148847 (MD FL, Nov. 2, 2015), a Florida federal district court dismissed with prejudice an amended complaint by a defendant claiming that her free exercise, speech and assembly rights were infringed when the city would not allow her to display her "Moorish Religious, Heritage, and History sign of the Morocco Treaty of Peace and Friendship" without a permit. Instead of curing pleading problems that led to her original complaint being dismissed (see prior related posting), plaintiff again argued that her status as "Moorish American national" exempts her from the Tampa's permit requirements.

Houston Voters Reject Anti-Discrimination Law In Focus On Transgender Rights

Texas Tribune reports that in Houston, Texas yesterday voters rejected the city's Equal Rights Ordinance by a vote of 61% to 39%.  The Ordinance (full text) barred discrimination on the basis of sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity, or pregnancy.  In a campaign centered in churches to obtain a referendum on the measure (see prior posting), opponents of the measure focused on its sexual orientation and gender identity provisions.  Republican leaders in the state, including the governor and lieutenant governor, supported repeal of the Ordinance.  Yesterday Lt. Governor Dan Patrick, reflecting the predominate theme of the anti-Ordinance campaign, said:

The voters clearly understand that this proposition was never about equality – that is already the law. It was about allowing men to enter women’s restrooms and locker rooms — defying common sense and common decency.

 After the vote, Houston Mayor Annise Parker, the first openly gay mayor of a major U.S. city, said:

Unfortunately, I fear that this will have stained Houston’s reputation as a tolerant, welcoming, global city.  And I absolutely fear that there will be a direct economic backlash as a result of this.

Turkey Sees First Trial Judge Presiding Wearing Headscarf

According to Daily Sabah, a female judge in Istanbul, Turkey yesterday became the first judge in the country to preside at a trial wearing a Muslim headscarf (hijab). For many years, Turkey-- because of its tradition of secularism-- banned women from wearing the headscarf in public institutions.  This past June, the High Council of Judges and Prosecutors changed the rule for judges.

Report Analyzes Political Affiliation and Public Policy Views of Various U.S. Religious Groups

The Pew Research Center yesterday released a new 265-page report (full text) with an appropriately long title: U.S. Public Becoming Less Religious-- Modest Drop in Overall Rates of Belief and Practice, but Religiously Affiliated Americans Are as Observant as Before.  The Report analyzes findings from Pew's 2014 Religious Landscape Study. Chapter 4 of the Report analyzes the views of various U.S. religious groups on a wide variety of social and political topics.  These include political party affiliation, the role of the government, government aid to the poor, environmental regulation, homosexuality, same-sex marriage, abortion, women in the workforce, childbearing out of wedlock, immigration and evolution.

Among the interesting findings is that the religiously unaffiliated (the "nones") is now the largest single religious group among those who self-identify as Democrats or as Democratic-leaning.  28% of Democrats are unaffiliated; while only 14% of Republicans are unaffiliated. The largest religious group among Republicans is Evangelical Protestants. They comprise 38% of Republicans, but only 16% of Democrats.

District Court Upholds Denial of Medicare Reimbursement To Christian Science Nursing Training Programs

In Chestnut Hill Benevolent Association v. Burwell, (D DC, Nov. 3, 2015), the D.C. federal district court upheld a ruling by the Center for Medicare Services that four Christian Science nursing facilities were not entitled to Medicare reimbursement for furnishing "approved educational activities."  The court concluded that while the Christian Science Nursing Arts Training Programs offered by these facilities are accredited by the Commission for Accreditation of Christian Science Nursing Organizations/Facilities, the Commission's standards do not meet those required by Medicare regulations.

FBI Delays Website Designed To Counter ISIS Recruiting After Complaints That It Stigmatizes Muslim Students

Think Progress reports that on Monday, the FBI at least temporarily delayed the launch of its "Don't Be A Puppet" website which was designed to undercut recruitment efforts of extremist groups such as ISIS.  As reported by the New York Times, the website "leads the viewer through a series of games and tips intended to teach how to identify someone who may be falling prey to radical extremists." However community organizations expressed concern that school teachers do not have the expertise to identify those being radicalized and that the website will stigmatize Arab and Muslim students.  The director of the Sikh Coalition complained that schoolchildren face a much greater threat from gun violence that from Muslim extremism.

New Study Examines Power of Orthodox Churches In Former Soviet Republics

The London-based Foreign Policy Centre last week (Oct. 28) released a 79-page report (full text) titled Traditional Religion and Political Power: Examining the Role of the Church in Georgia, Armenia, Ukraine and Moldova. Here is an excerpt from the report's Executive Summary:

In all four states the churches are looking to entrench their role in society and are testing the limits of their influence given that they are the most trusted institutions in each country. To varying extents they have all used a ‘traditional values’ agenda, focused primarily and most successfully on opposition to LGBTI rights, to bolster their support. The Russian Church and state have also been trying to promote this traditional values agenda as part of their ethos of ‘the Russian World’ with which they have been looking to influence the churches and societies of their ‘near abroad’. The Russian social agenda tallies with that of the orthodox communities in these four countries, though this does not always translate into geo-political support for Russia as some of the churches are keen to assert their independence. Having been pushed to the margins of society in Soviet times, the Orthodox churches have taken the opportunity to place themselves at the centre of national and political life in Georgia, Armenia, Ukraine and Moldova, a position they are unlikely to relinquish in the near future.

Eurasianet reports on the study.

NYT Investigates Religious Arbitration

The New York Times is running a series of investigative stories on the extent to which arbitration agreements are forcing individuals out of the court system into often defendant-friendly alternative dispute resolution processes.  Today's installment is titled In Religious Arbitration, Scripture Is the Rule of Law. Here is an excerpt:

For generations, religious tribunals have been used in the United States to settle family disputes and spiritual debates. But through arbitration, religion is being used to sort out secular problems like claims of financial fraud and wrongful death.

Customers who buy bamboo floors from Higuera Hardwoods in Washington State must take any dispute before a Christian arbitrator, according to the company’s website. Carolina Cabin Rentals, which rents high-end vacation properties in the Blue Ridge Mountains of North Carolina, tells its customers that disputes may be resolved according to biblical principles. The same goes for contestants in a fishing tournament in Hawaii.....

By adding a religious component, companies are taking the privatization of justice a step further. Proponents of religious arbitration said the process allowed people of faith to work out problems using shared values, achieving not just a settlement but often reconciliation.

Yet some lawyers and plaintiffs said that for some groups, religious arbitration may have less to do with honoring a set of beliefs than with controlling legal outcomes. Some religious organizations stand by the process until they lose, at which point they turn to the secular courts to overturn faith-based judgments, according to interviews and court records.

Villanova Creates New Center for Law and Religion

Villanova University School of Law yesterday announced the creation of its new Center for Law and Religion endowed by a $2 million gift from Joseph and Eleanor McCullen. The Center will sponsor innovative courses, conferences and seminars on emerging advocacy issues in law and religion. The new Center is now listed in the Religion Clause sidebar under "Academic Centers."

USCIRF Urges Secretary Kerry To Raise Religious Freedom Issues With Tajikistan

U.S. Secretary of State John Kerry is currently on a trip to various countries in Europe and Central Asia.  In anticipation of his arrival in Tajikistan today, the U.S. Commission on International Religious Freedom issued a press release yesterday strongly criticizing Tajikistan's "ongoing efforts to  control religious activity" and urged Secretary Kerry to raise religious freedom concerns with officials in Tajikistan.  USCIRF said in part:

The legal environment for religious freedom in Tajikistan has deteriorated recently, largely to the implementation of the 2009 religion law which: establishes onerous registration requirements for all religious groups; criminalizes all unregistered religious activity as well as private religious education and proselytism; requires official permission for religious groups to provide religious instruction and communicate with foreign co-religionists; and imposes state controls over the content, publication, and import of all religious materials.

The Tajik government imposes additional restrictions on Muslims such as: limiting the number and size of mosques; closing hundreds of unregistered mosques and prayer rooms; and demolishing three unregistered mosques in Dushanbe. The Tajik government pays imams’ salaries in the largest mosques and restricts the preaching of sermons to these mosques.  Muslim prayer officially is allowed only in mosques, cemeteries, homes, and shrines. As of October 2015, Tajik authorities reportedly are prohibiting government employees from attending Friday prayers.