Supreme Court Grants Review In Missouri Blaine Amendment Case

The U.S. Supreme Court today granted certiorari in Trinity Lutheran Church v. Pauley, (Docket No. 15-577, cert. granted 1/15/2016) (Order List).  In the case, the the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, rejected arguments that Missouri's Blaine Amendments violate the U.S. Constitution's 1st and 14th Amendments. At issue was the denial by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would have allowed it to resurface a playground at its day care and preschool facility on church premises. (See prior posting.) The petition for certiorari (full text) framed the Question Presented as follows:

Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.

SCOTUSblog's case page has links to all the briefs.

Court Refuses To Require Catholic Hospital To Perform Tubal Ligation

In Chamorro v. Dignity Health, (CA Super., Jan. 14, 2016), a California trial court refused to issue a preliminary injunction to require a Catholic hospital to perform a tubal ligation for contraceptive purposes.  The hospital refuses to perform the procedure pursuant to the U.S. Conference of Catholic Bishops' Ethical and Religious Directives for Catholic Health Care Services.  Plaintiff had contended that this violates California's prohibition on gender discrimination, but the court concluded that the hospital's policy bars direct sterilization of men as well as of women. AP reports on the decision.

NY Appeals Court Upholds Penalty On Wedding Venue That Refused To Host Same-Sex Ceremony

In Matter of Gifford v. McCarthy, (NY App. Div., Jan. 14, 2016), a New York state intermediate appellate court upheld a decision by the State Division of Human Rights imposing compensatory damages of $3000 and a civil fine of $10,000 on a for-profit wedding venue for refusing to host a same-sex marriage ceremony.  Liberty Ridge Farm rents space for, among other things, religious and secular wedding ceremonies and receptions.  One of the farm's owners told Melissa McCarthy that the farm did not host same-sex marriage ceremonies, though apparently it would have been willing to host the reception.  The court held that Liberty Ridge's wedding facilities are a "place of public accommodation" under the NY Human Rights Law and that discrimination against same-sex weddings is discrimination on the basis of sexual orientation.

The court went on to reject respondents federal and state free exercise claims, as well as their First Amendment compelled speech and expressive association defenses. It found the Human Rights Law to be a neutral law of general applicability.  The New York state constitution's free exercise clause requires a balancing of interests.  The court said:

While we recognize that the burden placed on the Giffords' right to freely exercise their religion is not inconsequential, it cannot be overlooked that SDHR's determination does not require them to participate in the marriage of a same-sex couple. Indeed, the Giffords are free to adhere to and profess their religious beliefs that same-sex couples should not marry, but they must permit same-sex couples to marry on the premises if they choose to allow opposite-sex couples to do so. To be weighed against the Giffords' interests in adhering to the tenets of their faith is New York's long-recognized, substantial interest in eradicating discrimination....  Balancing these competing interests, we conclude that petitioners failed to show that SDHR's determination constituted an unreasonable interference with the Giffords' religious freedom.

Rejecting respondents' First Amendment compelled speech argument, the court said:

Here, SDHR's determination does not compel the Giffords to endorse, espouse or promote same-sex marriages, nor does it require them to recite or display any message at all. The Giffords remain free to express whatever views they may have on the issue of same-sex marriage. The determination simply requires them to abide by the law and offer the same goods and services to same-sex couples that they offer to other couples. Despite the Giffords' assertion that their direct participation in same-sex wedding ceremonies would "broadcast to all who pass by the Farm" their support for same-sex marriage, reasonable observers would not perceive the Giffords' provision of a venue and services for a same-sex wedding ceremony as an endorsement of same-sex marriage.

The Blaze reports on the decision.

Group Releases List of Countries With Worst Persecution of Christians

This week the organization Open Doors issued its 2016 World Watch List Report detailing the 50 countries where persecution of Christians is greatest.  North Korea, Iraq, Eritrea, Afghanistan, Syria, Pakistan and Somalia top the list. On Wednesday, Religion News Service covered the press conference at which the Report was released.

Victims' Group Says Catholic Church Is Still Responding Inadequately To Priest Abuse

Building on the popularity of the Academy Award nominated film Spotlight, earlier this week SNAP (Survivors Network of those Abused By Priests) issued a press release titled A Challenge to Journalists: Where “Spotlights” Are Needed Now.  It discusses nine areas in which SNAP believes the Catholic Church is still not providing adequate safeguards or is not implementing promises of transparency, accountability and compensation for past and present clergy sexual abuse.

Court Dismisses Defamation Suit Because Accusations Require Religious Determination

Yesterday's New Jersey Law Journal reports on a Jan. 6 decision by a Bergen County trial court dismissing a defamation action brought by Raghd Alashaal Faisal Alhusaini who lives in Saudi Arabia against her half-sister, Malak Alshaal Faisal Alhusaini.  Plaintiff claimed her sister defamed her in social media postings by accusing her of having had sexual relations with multiple men under a marriage arrangement known in Sunni Islamic law as "Misyar,"  The court held that it lacks jurisdiction to decide whether accusing someone of engaging in Misyar is defamatory because that is a non-secular issue. Plaintiff also objected to a statement that her father had "disowned" her.  The court held that this is merely a non-actionable statement of opinion.

Colorado Appeals Court Interprets Religious Purpose Property Tax Exemption

In Grand County Board of Commissioners v. Colorado Property Tax Administrator, (CO App., Jan. 14, 2016), a Colorado appeals court held that in applying the state's tax exemption for property used in furtherance of religious purposes, the critical question is not whether the property is being used for inherently religious activities. Instead it it whether the use of the property furthers the landowner's religious mission an purpose.

Amicus Briefs Supporting Petitioners In Zubik Are Now Available

Monday was the deadline to file amicus briefs with the U.S. Supreme Court in support of petitioners in Zubik v. Burwell and its companion cases which challenge the accommodation for religious non-profits that object to the contraceptive coverage mandate under the Affordable Care Act.  Forty-two amicus briefs were filed, and Becket Fund has links to the full text of all of them. Amicus briefs in support of the government's position will be due by Feb. 17 (ten days after the due date for respondent's brief).  Here is SCOTUSblog's case page on Zubik.

Pope Speaks To Diplomatic Corps About Migration Crisis In Europe

On Monday, Pope Francis held the traditional exchange of New Year's greetings with members of the diplomatic corps accredited to the Holy See.  In his remarks (full text) the Pope focused on the "grave crisis of migration" affecting Europe. He said in part:

I wish, then, to reaffirm my conviction that Europe, aided by its great cultural and religious heritage, has the means to defend the centrality of the human person and to find the right balance between its twofold moral responsibility to protect the rights of its citizens and to ensure assistance and acceptance to migrants....

In facing the issue of migrations, one cannot overlook its cultural implications, beginning with those linked to religious affiliation. Extremism and fundamentalism find fertile soil not only in the exploitation of religion for purposes of power, but also in the vacuum of ideals and the loss of identity – including religious identity – which dramatically marks the so-called West. This vacuum gives rise to the fear which leads to seeing the other as a threat and an enemy.... The acceptance of migrants can thus prove a good opportunity for new understanding and broader horizons, both on the part of those accepted, who have the responsibility to respect the values, traditions and laws of the community which takes them in, and on the part of the latter, who are called to acknowledge the beneficial contribution which each immigrant can make to the whole community.

Russia Not Sympathetic To "Pastafarian" Driver's License Applicant

In Russia, the Moscow Department of the State Inspectorate of Traffic Safety has taken issue with one of its examination divisions which issued a driver's license to a man claiming to be a "Pastafarian."  According to Interfax, the Department says it will cancel the license which carries a photo of the man wearing a knitted pasta strainer on his head, and it will take disciplinary measures against the employees who issued the license. Rules apparently ban headwear in license photos.

Cert. Denied In Challenge To ACA Religious Conscience Exemption

On Monday, the U.S. Supreme Court denied certiorari in Cutler v. Department of Health and Human Services, (Docket No. 15-632, cert. denied 1/11/2016) (Order List).  In the case, the D.C. Circuit rejected an Establishment Clause challenge to the religious conscience exemption in the Affordable Care Act which exempts from the individual mandate members of certain traditional religious groups such as the Amish and Mennonites. (See prior posting.)

Anti-Westboro Protest Group Found To Have Violated Ordinance Against Picketing of Religious Event

In Topeka, Kansas yesterday. a municipal court judge imposed a $10 fine and $150 in court costs on each of four members of the Journey 4 Justice motorcycle counter-protest group for their Sept. 12 protest outside the Westboro Baptist Church.  According to the Topeka Capital-Journal, the group which was formed in 2011 to counter-protest hate groups like the virulently anti-gay Westboro was found to have violated Topeka Municipal Code Sec. 9.45.140 which prohibits picketing a house of worship during an announced religious event carrying a banner, placard or sign.  The court ruled that "banners" include American flags that the protest group was carrying, and that the ordinance applies during announced hours of religious services, whether or not services were actually taking place.  Originally Topeka police merely asked the group to end their protest, but members of the group insisted that police issue a citation so that a court could clearly interpret the law.

Newdow Sues Again To Get "In God We Trust" Off Money-- This Time Using RFRA

Activist Michael Newdow is trying once again to get the motto "In God We Trust" removed from the nation's coins and currency.  Representing some 41 plaintiffs including the Northern Ohio Freethought Society, Newdow and his co-counsel this week filed an elaborate 112-page complaint in an Ohio federal district court.  The complaint (full text) in New Doe Child #1 v. Congress of the United States of America, (ND OH, filed 1/11/2016) traces in almost law-review style (and with 362 footnotes) the history of "In God We Trust" on coinage and currency. In addition to 1st Amendment free exercise, establishment clause and compelled speech claims, the suit also relies on RFRA, contending in part:

By placing “In G-d We Trust” on the nation’s coins and currency bills, Defendants have substantially burdened Plaintiffs in the exercise of their Atheistic (and similar) beliefs by requiring them – as the price to pay for using the nation’s coins and currency bills – to personally bear a religious message that is the antithesis of what they consider to be religious truth.

As to one plaintiff-- Adam Clayman-- who is not an atheist, the complaint alleges that he believes:

participation in any activity that ultimately leads to the superfluous printing of G-d’s name on secular documents or to the destruction of G-d’s printed name is sinful. Thus, aware that – due to the acts being challenged in this case – G-d’s printed name on the nation’s money will ultimately be destroyed, Plaintiff Clayman has to choose between engaging in sin or not using the nation’s coins and currency bills.

The Blaze and Cleveland Plain Dealer report on the lawsuit. (See prior related posting.)

AU Creates New RFRA Bill Tracker

Americans United For Separation of Church and State announced yesterday that its "Protect Thy Neighbor" (PTN) project has created a legislative tracking page that allows tracking of all RFRA-type legislation introduced into Congress or state legislatures-- legislation that it describes as "legislation that would allow individuals, businesses and government employees to harm others in the name of religion."  PTN's blog, The Shield, will explain and comment on many of the bills.

Court Upholds Bus Company's Rejection of Pro-Life Referral Ads

In Women's Health Link, Inc. v. Fort Wayne Public Transportation Corp., (ND IN, Jan. 5, 2016), an Indiana federal district court upheld a decision by Citilink (Ft. Wayne's public bus service) to reject an ad from Women's Health Link, a pro-life health care referral service.  Citilink makes space available for public service announcements from non-profit organizations, but only if they do not express or advocate opinions on political, religious, or moral issues. The court held that Citilink maintains its advertising space as a "non-public forum".  According to the court:

The evidence doesn’t support Women’s Health Link’s contention that Citilink allowed comparable advertisements that address the same or similar topics but advocate a non-life-affirming position....

The reasonableness of the restrictions depends on the purpose of the forum.  In this case, the stated purpose was maximizing revenue, keeping the cost of riding the bus down, protecting Citilink’s passengers from the risk of imposing on a captive audience, and avoiding any “endorsement, implied or otherwise” of the product, service or message. The restrictions on political, religious, and moral speech serve that purpose and are reasonable under the circumstances.

ADF issued a press release reacting to the decision

Preliminary Injunction and Bitter Fighting Among Top State Officials Over Nevada School Voucher Law

Litigation over Nevada's new school voucher program is getting messy.  As previously reported, two lawsuits have been filed challenging the voucher law. Then, as reported by This Is Reno, on January 8, a third lawsuit was filed by Nevada Lt. Governor Mark Hutchison, acting in his private capacity as a lawyer representing for free two Nevada families who want to participate in the voucher program.  He is asking the court for a declaratory judgment supporting the constitutionality of the plan, hoping that this will lead to a quicker ruling. The filing of this suit led to bitter criticism from the state attorney general and state treasurer. The attorney general quickly filed a motion to dismiss the suit (full text) (press release) and State Treasurer Dan Schwartz issued a flurry of releases critical of Hutchinson, and is quoted by the press as saying:

[Hutchison is] using this to fill his campaign coffers for political office. We’ve never seen the Lt. Governor at any of the hearings. I’ve never seen him at any of the workshops. He went about getting [information] surreptitiously from one of my staff. All [this lawsuit] is going to do is distract from our other cases, which are serious cases. It’s a political stunt. It’s a perversion of justice. He’s using the court system for his own political gain. I’m seriously considering asking him to resign.

Then yesterday, a state court judge in one of the other cases issued a preliminary injunction ordering the state treasurer to stop implementing the new law's educational savings accounts while the court hears challenges to the law. According to AP,  Carson City District Court Judge James Wilson concluded that plaintiffs had shown a reasonable chance of prevailing on the merits.  Implementation would have diverted $20 million from the public school budget.

UPDATE: Here is Judge Wilson's full opinion in Lopez v. Schwartz, (NV Dist. Ct., Jan 11, 2016) granting the preliminary injunction. [Thanks to Blog From the Capital for the lead.]

Settlement In Voter Registration Suit Brought By Disenfranchised Hasidic Jews

The Forward and JTA reported yesterday that a settlement has been reached in a lawsuit filed last year against the Sullivan County, New York, Board of Elections by 27 Hasidic Jews whose voter registrations were among 156 in the Village of Bloomingburg that the Board of Elections had taken steps to cancel.  The Election Board claimed that the voters were not really residents of the Village, which had a population of only 420 in the 2010 census. (See prior posting.)  Under the settlement agreement the names will remain on the voter rolls.  This is part of a larger dispute over the building of a high density 396-unit apartment development in Bloomingburg that will be marketed to members of the Satmar Hasidic community.

UPDATE: A Feb. 2 report by the New York Post says that the settlement, which the court has approved, includes the appointment of a monitor for 5 years to oversee the voting process (including review of the voter challenge questionnaire). Also voting materials and signs will be in both Yiddish and English. The county will pay damages of $25,000 and $550,000 in attorneys' fees.

Yeshiva Files RLUIPA Action Against New Jersey Township

In New Jersey last week, a federal lawsuit was filed challenging the denial of a zoning variance by the Township of Ocean to plaintiffs who want to use an existing school building for a 96-student boarding school for advanced Jewish studies.  The 79-page complaint (full text) in Yeshiva Gedola Na’os Yaakov, Inc. v. Township of Ocean, New Jersey, (D NJ, filed 1/8/2016) contends that the denial violates RLUIPA, the Free Exercise and Equal Protection Clauses, the Fair Housing Act, the New Jersey Law Against Discrimination, as well as other provisions.  A press release by counsel filing the lawsuit describes it:

The Complaint explains the Yeshiva’s need for a religious school, as well as the Township’s zoning laws that completely prohibit religious education throughout the Township for students over 18 years of age, while permitting other adult education institutions. It also describes a long litany of examples of the substantial hostility faced by the Yeshiva during the variance application proceedings..... The Complaint states that “many Ocean Township residents hold animus toward the Orthodox Jewish community in nearby Lakewood, New Jersey”.... The variance application dragged on for approximately four times the statutory limit of 120 days, including proceedings shut down because of capacity being exceeded by crowds “packing” the venue.

NJ.com has more on the lawsuit.

Suit, Claiming Free Exercise Right, Seeks Voiding of Death Certificate

Late last month, a suit was filed in a California federal district court seeking to require the state of California to invalidate a death certificate issued two years ago when 13-year old Jahi McMath was declared brain dead.  However before the child's ventilator was removed, her mother transferred her to a facility in New Jersey, a state which has a religious exemption in its law to the brain-death standard.  Jahi's mother claims that Jahi now shows brain function.  The complaint (full text) in McMath v. State of California, (ND CA, filed 12/23/2015) seeks an injunction requiring California to restore all rights (including health care benefits) to Jahi, and requiring it to expunge records of the death certificate. Among the grounds for relief asserted by plaintiffs are the Free Exercise clause and RLUIPA. The complaint alleges in part:

Plaintiffs' sincerely held religious beliefs require that they provide ongoing medical care for any person who is alive, including JAHI McMath.... The issuance of a facially invalid (and now substantively inaccurate) death certificate ... created a situation in which Plaintiffs were unable to exercise their religion....

The McMath lawyers issued a press release announcing the filing of the lawsuit, and NJ.com reports on the suit.

Appeals Court Rejects Jehovah's Witnesses Venue Transfer As Delay Tactic

In Fessler v. Watchtower Bible and Tract Society of New York, Inc., (PA Super. Ct., Dec. 30, 2015), a Pennsylvania state appellate court held that a trial court abused its discretion in transferring a sexual abuse case against Jehovah's Witness organizations from Philadelphia County to York County. Plaintiff in the case alleged that as a teenager she was sexually abused by a middle-aged woman (also a defendant) whom she met through a Jehovah's Witness congregation.  The defendants' change of venue motion was granted just two weeks before trial was to begin, and after discovery had taken place.  The transfer was to the county with the largest civil case backlog in Pennsylvania.  The court concluded that the motion was a bad-faith "last-minute gambit to delay trial." Reveal reports on the decision.