Religion Clause

Friday, January 22, 2016

"No-Aid" Clause Not Violated By Faith-Based Social Service Contracts

In Center For Inquiry , Inc. v. Jones, (FL Cir. Ct., Jan. 20, 2016), a Florida state trial court upheld against constitutional challenge state contracts with religious organizations for substance abuse treatment and transitional housing for former inmates. Plaintiffs contended that the contracts violate Art. I, Sec. 3 of the Florida Constitution which provides in part:

No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.

The court disagreed, saying:

The No-Aid provision permits government contracts with religious organizations if the funds are not spent "in aid of" religion but rather to further the state's secular goals.... [T]he Program exists to promote the State's anti-recidivism and anti-addiction efforts, not religion. The Program is not "significantly sectarian": it permits some religious content only to the extent the content is offered in a nondiscriminatory and wholly optional and voluntary fashion. Further, the record shows that the program does not indoctrinate, require participation in religious ritual, or favor any one religion over another.

Becket Fund issued a press release announcing the decision.

Thursday, January 21, 2016

Department of Education Will Publicize Religious Colleges That Have Obtained Title IX Exemptions

As previously reported, over the last two years the U.S. Department of Education has granted a number of religiously-controlled colleges an exemption from Title IX where full compliance would conflict with their religious tenets. With the exemption, the schools may continue to receive federal funds even though they discriminate in various ways on the basis of marital status, sex outside of marriage, sexual orientation, gender identity, pregnancy, or abortion. In a press release yesterday, Human Rights Campaign says that now the Department of Education has agreed to create a searchable database of educational institutions that have applied for and/or received such exemptions. HRC comments:

While the Department of Education has little discretion to deny these requests for exemptions, religiously controlled educational institutions should not be exempt from full transparency.

Texas Bar Committee Backs Off Refusal To Certify Christian Ethics CLE Course

As reported by Catholic Education Daily, the State Bar of Texas Minimum Continuing Legal Education Committee last week backed off of its controversial refusal last November (see prior posting) to certify a religious-themed continuing legal education program for "Legal Ethics/ Professional Responsibility" credit. Texas Gov. Greg Abbott had charged the Committee with religious discrimination after it refused to approve a St. Mary's law school professor's CLE program on "Christian Ethical Perspectives: Faith and Law Today" for ethics credit. In its January 12 letter (full text) to the professor, Bill Piatt, the Committee said in part:

It has become clear that the November 4 letter conveyed an unintended and incorrect impression regarding the MCLE Committee's position regarding the provision of credit for courses containing moral or religious content. We take responsibility for and regret the miscommunication.

Zimbabwe's Constitutional Court Says Marriage Under Age 18 Is Banned Without Exceptions

Zimbabwe's Constitutional Court yesterday held that the country's Constitution bars marriage below the age of 18 for either males or females. According to NewsdzeZimbabwe, the court held that Sec. 78(1) of Zimbabwe's Constitution invalidates Sec. 22(1) of the Marriage Act that allowed girls (with consent of their parents or guardians) to marry at age 16 and boys to marry at age 18, and in addition allowed either to marry at a younger age with the consent of the Minister of Justice, Legal and Parliamentary Affairs. The court held that the Constitution "sets 18 years as the minimum age of marriage...." and that the Constitution "permits no exception for religious, customary or cultural practices that permit child marriage, nor does it allow for exceptions based on the consent of public official, parents or guardians."

Wednesday, January 20, 2016

Suit Seeks "Church Plan" Designation To Avoid Liability For Bankrupt Pension Plan

In Nashville (TN), an important charitable foundation, the Baptist Healing Trust Fund, last week filed a declaratory judgment action against the U.S. Pension Benefit Guaranty Corporation seeking to avoid potential liability to the PBGC in connection with the now-bankrupt retirement plan of the former Baptist Hospital. According to the complaint (full text) in Baptist Healing Hospital Trust v. Pension Benefit Guaranty Corporation, (MD TN, filed 1/12/2016), the charitable trust-- which received a substantial portion of the proceeds from the sale of Baptist Hospital in 2001-- seeks a ruling that the pension plan was an exempt "church plan" under ERISA so that the PBGC would have no jurisdiction to pursue claims on behalf of the plan. The PGBC is seeking arbitration to recover the $100 million still due to retirees. The lawsuit also seeks a stay of the arbitration while the court determines the exempt status of the plan. Nashville Public Radio, Nashville Post, and The Tennessean all report on the lawsuit.

Adventists Sue Town Over Required License For Door-To-Door Solicitation

The Seventh Day Adventist Church and two of its members filed a federal lawsuit yesterday against the city of White Hall, Arkansas challenging the constitutionality of the city's requirement for a permit before an individual can engage in door-to-door solicitation of funds. The complaint (full text) in Arkansas-Louisiana Conference of Seventh Day Adventists v. City of White Hall, Arkansas, (ED AR, filed 1/19/2016), contends that the ordinance violates plaintiffs' free speech, free exercise, due process rights and their rights under Arkansas' Religious Freedom Restoration Act. At issue is a Student Literature Evangelism Program run by Ouachita Hills College in which teams go door-to-door in neighborhoods evangelizing, offering literature and asking for donations. The suit contends that the ordinance is overbroad and vague, and that its $50 fee chills speech, substantially burdens religious exercise. Plaintiffs also filed a brief (full text) in support of their motion for injunctive relief. Adventist Review reports on the filing of the lawsuit.

Tuesday, January 19, 2016

Ejected Muslim and Sikh Airline Passengers Sue

The New York Daily News reported yesterday that a federal lawsuit has been filed against American Airlines and two affiliated regional carriers by four friends-- 3 Muslims and a Sikh-- who were ejected from a Toronto to New York flight last December because they made the stewardesses and the captain uneasy. The flyers' appearance and the fact that two of them upgraded to business class just before boarding aroused suspicions in the crew. Two of the ejected passengers were Bangladeshi Muslims, one an Arab Muslim and one a Sikh from India. The lawsuit seeks $9 million in damages, claiming plaintiffs were discriminated against for looking too Muslim.

Jehovah's Witnesses In Russia Sue Over Blocking of Bible Imports

Interfax yesterday reported on a lawsuit filed in a Russian court by the Administrative Center for Jehovah's Witnesses in Russia against customs authorities in the town of Vyborg. According to the lawsuit filed in the St. Petersburg and Leningrad Region Arbitration Court, Customs has refused to allow into the country a shipment of Bibles from German Jehovah's Witnesses because they were not accompanied by documents certifying compliance with the Federal Law on Counteracting Extremist Activity. The shipment included the Synodal edition of the Bible (translated by the Russian Orthodox Church) and the Study Bible published by the Russian Bible Society. According to a Nov. 30, 2015 report from Forum 18:

A new Russian legal amendment bans some sacred texts - "the Bible, the Koran, the Tanakh and the Kanjur, their contents, and quotations from them" - from being banned as "extremist". But about 4,000 Jehovah's Witness Bibles are among millions of their publications still held up at Russian customs as they may contain "extremism"....

Trump Speaks At Liberty University With Outreach To Evangelicals

Republican presidential hopeful Donald Trump spoke at Liberty University yesterday, in a talk geared toward his evangelical Christian audience. (Video of full remarks.) He speech was preceded by a lengthy introduction (full text) from Liberty University president Jerry Falwell, Jr., who said in part:

Matthew 7:16 tells us "by their fruits ye shall know them". Donald Trump's life has borne fruit, fruit that has provided jobs to multitudes of people in addition to the many he has helped with his generosity.... In my opinion, Donald Trump lives a life of living and helping others as Jesus taught in the Great Commandment.

As reported by Time:

Early on in his speech, Trump tailored his message to the crowd and emphasized the power of Christianity in the country.

“We’re going to protect Christianity,” he said, before quoting a Bible passage. “2 Corinthians, right? 2 Corinthians 3:17, that’s the whole ballgame. Where the spirit of the lord, right? Where the spirit of the lord is, there is liberty … It is so true.”

(When quoting the Bible passage, Trump said “two Corinthians” rather than “Second Corinthians,” the correct way of saying it.)

“If you look what’s going on throughout the world … Christianity, it’s under siege,” Trump continued. “I’m Protestant, I’m very proud of it, Presbyterian to be exact, but I’m very proud of it … And we’ve got to protect because bad thing are happening … We don’t band together, maybe? Other religions frankly they’re banding together and they’re using it. If you look at this country, it’s gotta be 70 percent, 75 percent, some people say even more. The power we have, we have to unify. We have to band together, we have to do really in a really large version what they’ve done at Liberty.”

Monday, January 18, 2016

Sunday, January 17, 2016

Recent Prisoner Free Exercise Cases

In Payne v. Doe, (3d Cir., Jan. 7, 2016), a Muslim inmate complained that authorities refused to deliver him a late meal tray during Ramadan that eliminted foods to which he was allergic. The court affirmed the district court's holding that plaintiff had enough alternatives (e.g. getting his therapeutic tray early and holding it until later) that there was no 1st Amendment violation. However it remanded plaintiff's RLUIPA claim in light of the Supreme Court's intervening decision in Holt v. Hobbs.

In Lofton v. Williams, 2016 U.S. Dist. LEXIS 3195 (SD GA, Jan. 11, 2016), a Georgia federal magistrate judge permitted an inmate to move ahead with his claim that he was placed by the warden in the more restrictive Tier II program because he is a Muslim. He was also given leave to amend his complaint regarding alleged strip searching and confiscation of his religious materials because of his faith.

In Harris v. Lake County, 2016 U.S. Dist. LEXIS 3247 (ND CA, Jan 11, 2016), a California federal magistrate judge dismissed an inmate's claims that his religious rights were infringed when he was denied use of marijuana for medical or spiritual reasons.

In Huston v. Smith, 2016 U.S. Dist. LEXIS 3342 (ND IA, Jan. 11, 2016), an Iowa federal district court rejected a habeas petition holding that civilly committing petitioner for sexually-motivated harassment was reasonable even if petitioner believed that committing him instead of forgiving him was contrary to his religious beliefs.

In Johnson v. Roskosci, 2016 U.S. Dist. LEXIS 3403 (MD PA, Jan. 12, 2016), a Pennsylvania federal district court vacated a default judgment that had been entered against a corrections officer in a suit by an inmate who complained that his necklace of "religious cultural tribal beads" was illegally seized.

In Floyd v. Williams, 2016 U.S. Dist. LEXIS 3615 (SD GA, Jan 12, 2016), a Georgia federal magistrate judge recommended that a Muslim inmate be permitted to proceed with claims for nominal damages and injunctive relief on his complaint that he was denied a chance to participate in the Eid al-Fitr feast.

In Quezada v. Cate, 2016 U.S. Dist. LEXIS 4357 (ED CA, Jan. 12, 2016), a California federal magistrate judge recommended that an inmate who was an adherent of the House of Yahweh be permitted to proceed with his complaint that his kosher meals were terminated because he was not Jewish. UPDATE: The court adopted the magistrate's recommendations at 2016 U.S. Dist. LEXIS 33493, March 15, 2016.

In Robinson v. Cate, 2016 U.S. Dist. LEXIS 4981 (ED CA, Jan. 14, 2016), a California federal magistrate judge recommended denying a preliminary injunction to a Muslim inmate who is litigating his right to a fully Halal diet.

In Crouch v. Wooley, 2016 U.S. Dist. LEXIS 5397 (SD IL, Jan. 14, 2016), an Illinois federal district court permitted a Muslim inmate to proceed with his complaint that he was denied post-sunset meals for 16 days during Ramadan.

Planned Parenthood Files RICO Lawsuit Over Videos

On Thursday, Planned Parenthood filed a wide ranging lawsuit against the Center for Medical Progress over heavily edited widely-publicized videos purporting to show that Planned Parenthood was illegally selling fetal tissue to researchers. The videos led to federal and state legislative investigations and efforts to cut off government funding. The complaint (full text) in Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, (ND CA, filed 1/14/2016) alleges violation of the Racketeer Influenced and Corrupt Organization statute, as well as invasion of privacy, conspiracy, breach of contract, trespass and wiretapping. The 65-page complaint alleges in part:

This complaint details a complex criminal enterprise conceived and executed by anti-abortion extremists. The express aim of the enterprise— which stretched over years and involved fake companies, fake identifications, and large-scale illegal taping— was to demonize Planned Parenthood, harass and intimidate its dedicated staff, and interrupt its operations, all with the ultimate goal of interfering with women’s access to legal abortion....

Defendants ... went public with a vicious online video smear campaign, releasing a series of YouTube videos purporting to show that Planned Parenthood violated federal law related to tissue donation. In fact, these videos were heavily manipulated, with critical content deliberately deleted, and disconnected portions sewn together to create a misleading impression.

TPM reports on the lawsuit.

Saturday, January 16, 2016

Presidential Proclamation: Religious Freedom Day

The White House yesterday issued a Presidential Proclamation (full text) declaring today as Religious Freedom Day 2016. It marks the anniversary of the adoption on Jan. 16, 1786 of the Virginia Statute of Religious Freedom. President Obama's Proclamation included an extensive discussion of his Administration's initiatives to further religious liberty:

Here at home, my Administration is working to preserve religious liberty and enforce civil rights laws that protect religious freedom -- including laws that protect employees from religious discrimination and require reasonable accommodation of religious practices on the job. We will keep upholding the right of religious communities to establish places of worship and protecting the religious rights of those so often forgotten by society, such as incarcerated persons and individuals confined to institutions. We will also continue to protect students from discrimination and harassment that is based on their faith, and we will continue to enforce hate crime laws, including those perpetrated based on a person's actual or perceived religion. This work is crucial, particularly given the recent spike in reports of threats and violence against houses of worship, children, and adults simply because of their religious affiliation.

As we strive to uphold religious freedom at home, we recognize that this basic element of human dignity does not stop at our shores, and we work to promote religious freedom around the globe. We are working with a broad coalition against those who have subjected religious minorities to unspeakable violence and persecution, and we are mobilizing religious and civic leaders to defend vulnerable religious communities. In addition, we are calling for the elimination of improper restrictions that suppress religious practice, coordinating with governments around the world to promote religious freedom for citizens of every faith, and expanding training for our diplomats on how to monitor and advocate for this freedom.

Friday, January 15, 2016

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.

Thursday, January 14, 2016

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.

Wednesday, January 13, 2016

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.

Tuesday, January 12, 2016

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.

Monday, January 11, 2016

Turkey's Religious Affairs Directorate Ends Online Fatwas After Embarrassing Posting

Turkey's Religious Affairs Directorate announced on Friday that it is closing down its online fatwa service after public outrage over a online fatwa discussing whether a man having lustful feelings for his daughter would religiously invalidate his marriage with the girl's mother. According to Today's Zaman, a Directorate spokesman says: "Such a fatwa has never been issued by our High Council on Religious Affairs." The fatwa was removed from the Directorate's website. An investigation into the incident has begun, but explanations so far are confusing, suggesting that the posting of the fatwa may have been a purposeful attempt to embarrass the Religious Affairs Directorate, perhaps by followers of the Gülen movement within the state bureaucracy.

Church Sues Over Denial of Use Permit

According to Saturday's Fort Worth Star Telegram, earlier this month the 75-member Now Faith Deliverance Temple filed a state court lawsuit against the Pantego, Texas Town Council after the Council denied the church a special use permit. The permit would have allowed the congregation to continue to operate in the building to which it relocated 6 months earlier. Apparently the Town had received complaints from neighbors about noise levels at the church. The non-denominational African-American church charges that the Town Council has a history of denying permits to religious groups whose members are racial or religious minorities. Last November, a mosque faced a similar refusal.

Sunday, January 10, 2016

IRS Withdraws Proposal For Donee Reporting By Charities Over Privacy Concerns

The Internal Revenue Service announced in the Jan. 8 Federal Register that it is withdrawing a controversial proposal that would have allowed charitable organizations to report individual donations to the IRS as an alternative to taxpayers obtaining a contemporaneous written acknowledgement of the contribution. Many of the public comments on the proposal expressed privacy concerns since charitable organizations would have needed to collect and maintain social security numbers of donees.

Maritime Park Worker Sues After Being Fired For Helping With Baptism

Courthouse News Service reported last week on a religious discrimination suit filed in a California federal district court. A maintenance worker at the Maritime National Historic Park in San Francisco, who is also a Baptist minister, says he was fired for helping to baptize a visitor in the ocean. The baptism took place while the minister Roger Holly was on his lunch break and was not in uniform. Holly, who is African-American, had previously complained about racial discrimination.

Recent Prisoner Free Exercise Cases

In Thompson v. Holm, (7th Cir., Jan 4, 2016), the 7th Circuit, reversing the district court, ruled that withholding a Muslim inmate's meal bags for two days during Ramadan constituted a substantial burden on his free exercise rights. The court, also rejecting several other defenses, urged the district court to appoint counsel for plaintiff on remand.

In Rosales v. Watts, 2016 U.S. Dist. LEXIS 267 (SD GA, Jan 4, 2016), a Georgia federal magistrate judge recommended that an inmate be allowed to proceed with many of his claims alleging that prison authorities truncated the "Spiritual Mass" ceremony for Santeria practitioners and refused to order Santeria supplies including bead necklaces with Ache. UPDATE: The magistrate's recommendations were adopted at 2016 U.S. Dist. LEXIS 33357, March 15, 2016.

In Michaels v. West, 2016 U.S. Dist. LEXIS 1826 (ND WV, Jan. 7, 2016), a West Virginia federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 174184, Nov. 25, 2015) and dismissed for failure to exhaust administrative remedies an inmate's complaint that he was denied the vegetarian diet required by his Asatru religious beliefs.

In Todd v. CDCR, 2016 U.S. Dist. LEXIS 1944 (ED CA, Jan. 7, 2016), a California federal magistrate judge recommended that, consistent with a remand from the 9th Circuit, the complaint by an inmate who was a minister in the White supremacist Creativity religion move ahead. Plaintiff complains about confiscation of religious material, failure to provide a fruitarian (or acceptable alternative kosher diet), placing of the Holy Books of Creativity on the banned list, and refusal to recognize Creativity as a religion.

In Young v. Rodriguez, 2016 U.S. Dist. LEXIS 1965 (ED CA, Jan. 7, 2016), a California federal magistrate judge permitted a Rastafarian inmate to move ahead with his complaint that he was not permitted to wear his religiously required head covering-- a crown-- into the health care facility visiting room.

In Rezaq v. Federal Bureau of Prisons, 2016 U.S. Dist. LEXIS 2288 (SD IL, Jan. 8, 2016), an Illinois federal district court permitted a Muslim inmate to proceed under RFRA (but not under the 1st Amendment) complaining that prison authorities did not have a pre-dawn morning pill line during Ramadan.

In Wallace v. Mayfield, 2016 U.S. Dist. LEXIS 1137 (ED AR, Jan. 6, 2016), an Arkansas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 174100, Dec. 14, 2015) and denied a preliminary injunction to an inmate who claimed his free exercise rights were infringed when he was forced to shave his beard and cut his hair. Plaintiff sought to enjoin retaliation for filing the lawsuit.

In Coleman v. Lincoln Parish Detention Center, 2016 U.S. Dist. LEXIS 2633 (WD LA, Jan. 7, 2016) a Louisiana federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 174236, Dec. 7, 2015) and dismissed a Muslim inmate's complaint that he was denied the right to participate in weekly Jummah services and when he filed a grievance was transferred to another facility.

Saturday, January 09, 2016

Court Allows RFRA Challenge To ACA Individual Mandate To Proceed

A Missouri federal district court yesterday refused to dismiss for failure to state a claim under RFRA a suit by a state legislator and his wife asserting their religious rights are burdened by the Affordable Care Act's mandate requiring them to purchase health insurance which includes contraceptive coverage. In Wieland v. U.S. Department of Health and Human Services, (ED MO, Jan. 8, 2016), Paul and Teresa Wieland, who are Roman Catholics, assert that paying for or participating in a healthcare plan that includes coverage for contraceptives, or providing such insurance coverage for their three daughters, violates their sincerely-held religious beliefs. (The daughters were 12, 18 and 19 when the suit was brought.) The court, relying on 8th Circuit precedent, said:

it is not the Court’s role to second-guess the reasonableness of a plaintiff’s sincerely-held religious beliefs....

The court concluded that while the government may be able to prove that the religious exercise burden is justified by a compelling governmental interest, that is not something plaintiffs have an obligation to disprove at this stage in order to avoid dismissal. The court however did dismiss plaintiffs' 1st Amendment free exercise and free speech claims, as well as their substantive due process and Administrative Procedure Act claims. (See prior related posting including link to complaint.)

Mother's Move To Eskimo Village Does Not Justify Reduction In Her Child Support Obligations

In Sharpe v. Sharpe, (AK Sup. Ct., Jan. 8. 2016), the Alaska Supreme Court in a 3-2 decision upheld a trial court's denial of a mother's motion to reduce the amount she is required to pay under a child-support order. The mother, who is the non-custodial parent of an 10 year old daughter, gave up her high-paying Alaska pipeline job to move back to her Yup'ik Eskimo community. She adopted a subsistence lifestyle there to meet her her cultural, spiritual, and religious needs and help her in her battle with alcohol. Under Alaska rules, the court can order a parent to pay more than would otherwise be justified by his or her current income level if the parent is "voluntarily and unreasonably" unemployed or underemployed. The majority concluded that this was a voluntary and unreasonable decision by the mother to earn less than she is capable of earning.

On appeal, the mother also argued that the child support order burdens her free exercise of religion as protected by the Alaska Constitution. She contended that the order in effect requires her to give up her Native religious and cultural heritage to maintain a stressful job in Anchorage. The majority rejected her claim because it had not been raised at trial.

Justice Winfree dissenting argued in part:

Today’s decision has enormous negative implications. It trivializes and devalues Alaska Natives’ cultural, spiritual, and religious connections to their villages and their subsistence lifestyle. It requires a non-custodial Native parent in rural Alaska to pay child support based on what the parent could earn in urban Alaska regardless of the legitimacy of choosing to live in rural Alaska.... [I]t infringes on constitutionally protected religious and privacy rights.

Friday, January 08, 2016

Texas Gov. Abbott Accuses State Bar's CLE Committee of Religious Discrimination

Texas Lawyer reported yesterday that Texas Governor Greg Abbott has now weighed in on a refusal by the State Bar's Minimum Continuing Legal Education Committee to certify a law professor's continuing legal education program for "Legal Ethics/ Professional Responsibility" credit. Under Texas MCLE rules, all lawyers must take 15 hours per year of continuing legal education, 3 hours of which must be in legal ethics/ professional responsibility. The State Bar's Accreditation Standards provide:

"Legal Ethics and Legal Professional Responsibility" shall include, but not be limited to the accreditation of those topics involving disciplinary rules of professional conduct, rules of disciplinary procedure, and the use and availability of alternative dispute resolution and pro-bono services....

"Legal Ethics and Legal Professional Responsibility" shall not include programs or topics that deal with government or business ethics, individual religious or moral responsibilities, training in personal organizational skills, general office skills, time management, leadership skills or stress management.

Applying these standards, the State Bar's MCLE Committee refused to approve St. Mary's law school professor Bill Piatt's CLE program on "Christian Ethical Perspectives: Faith and Law Today" for ethics credit. Sponsors of the program are appealing to the State Bar of Texas board of directors. Gov. Abbott's general counsel has written to the State Bar president urging a change in the definition of "legal ethics" in the MCLE rules, contending that the current definition is "based on a shallow and impoverished understanding of legal ethics and an unduly narrow view of legal education." He suggested that the refusal to accredit could be seen as religious discrimination against the program sponsors. A week later, Gov. Abbott posted a blunter statement on his Facebook page:

I'm accusing Texas State Bar of religious discrimination for denying continuing education credit for Christian legal ethics programs. The Texas State Bar leaders should be compelled to read my winning arguments upholding the Ten Commandments and "One Nation Under God."

The parties are meeting next week to try to work out a solution before the Jan. 21 appeal hearing.

President Sends Greetings On Orthodox Christmas

Yesterday the White House released a statement (full text) from the President and Mrs. Obama wishing "a blessed Christmas to Orthodox Christians in the United States and around the world." The statement also "reaffirm[ed] our commitment to protect religious minorities, including Christian minorities, who too often face violence and persecution throughout the world."

Israeli Civil Court Orders Chief Rabbinate To Release List of Foreign Rabbis Whose Testimony It Will Accept

In Israel on Wednesday, Jerusalem district court Judge Nava Ben-Or ordered Israel's Chief Rabbinate to release its internal list of rabbis in other countries whose affidavits will be recognized for purposes of proving Jewish identity. Residents who have moved to Israel from abroad can only have access to a Jewish marriage ceremony or Jewish burial in Israel if they are formally recognized as Jewish by the Rabbinate. According to the Times of Israel:

In her decision, Judge Nava Ben-Or declared herself “shocked” by the apparent lack of transparency in this matter most central to everyday existence.

“This is a person’s life, we’re talking about very serious matters,” she said, describing a situation in which people wait indeterminately for the rabbinate to decide their fates, saying they hear nothing and are not being answered.

“It is a right to start a family,” Ben-Or said. “I am ashamed that in a functioning state this information cannot be provided. It is an unprecedented scandal. It is not Jewish, and inhumane.”

Settlement Reached In Suit Over NYPD Surveillance of Muslims

In 2013, a suit captioned Raza v. City of New York was filed in a New York federal district court challenging the constitutionality of the New York Police Department's surveillance program directed at Muslim religious and community leaders, organizations, businesses and at mosques. (See prior posting.) The NYPD was already operating under the Handschu Guidelines that grew out of a consent decree in an earlier case on NYPD surveillance activities. In 2013, a motion was also filed in that case claiming that the consent decree had been violated. A press release from the ACLU yesterday reports that after several months of negotiations the parties have agreed on a settlement in both cases. The settlement involves court adoption of modifications to the Handschu Guidelines to offer greater protections. As summarized by ABC News:

Under the deal, the Handschu guidelines will specifically ban investigations based on race, religion or ethnicity. Other provisions require the department to use the least intrusive investigative techniques possible and to consider "the potential effect on the political or religious activity of individuals, groups or organizations and the potential effect on persons who, although not a target of the investigation are affected by or subject to the technique."

The settlement also sets time limits for ending investigations that ultimately fail to turn up threats — 18 months for preliminary investigations, three years for full investigations and five years for terror conspiracy cases. The civilian representative, appointed by the mayor, will attend monthly meetings of police officials and NYPD lawyers who review the investigations and will have authority to report any suspected violations of the agreement to City Hall or a federal judge.

The full text of the guideline modifications are set out as Exhibit B to the January 7 Notice of Motion for Approval of Settlement in the Handschu case. A Memorandum of Law in support of the motion was filed by plaintiffs. A Joint Motion Seeking Entry of Settlement was also filed in the Raza case, as was a Stipulation of Settlement. Under the settlement, the NYPD will also remove a controversial report titled Radicalization in the West from the NYPD website, and the city will pay $1.671 million for plaintiffs' attorneys' fees.

Court Rejects Federal Challenges To School Ban On Graduate Wearing Eagle Feather

Having previously denied a preliminary injunction in the case (see prior posting), this week an Oklahoma federal district court dismissed a lawsuit brought by a Native American high school senior challenging a school policy that barred her from wearing an eagle feather on her mortar board tassel at her high school graduation. The feather had been given to her by a tribal elder, and it would be a sign of disrespect not to wear the feather which is sacred according to her religious beliefs. In Griffith v. Caney Valley Public Schools, (ND OK, Jan. 5, 2015), the court rejected plaintiff's free speech claim, concluding that graduation attire is school-sponsored speech, and that the school had a legitimate pedagogical reason for restricting decorations on graduation caps. It rejected her First Amendment free exercise claim, finding that the regulation is a neutral rule of general applicability. Finally the court refused to exercise its supplemental jurisdiction to decide plaintiff's claim that the school's restriction violates Oklahoma's Religious Freedom Act. Plaintiff remains free to refile that claim in state court.

Thursday, January 07, 2016

Amish Contempt Citation Upheld; Free Exercise Issue Avoided

A Wisconsin state appeals court this week, avoiding the free exercise issue that appellants attempted to raise, upheld the contempt judgment against members of an Old Order Amish family who failed to obtain building and sanitary permits for their residence. In In re the Contempt in: Eau Claire County v. Borntreger, (WI App., Jan. 5, 2016), the court held that the state constitutional issue that the Borntregers want to raise was not the subject of the contempt decision under appeal, but of the earlier grant of summary judgment to the county which the Borntregers failed to appeal. The court explained appellants' contentions:

The Borntregers argued their decision not to pursue building and sanitary permits was protected by article I, section 18 of the Wisconsin Constitution. The Borntregers subsequently filed a motion to dismiss on this ground, asserting the “county ordinance and the state statutes [the County] relies upon violate the defendants’ freedom of worship and liberty of conscience.” The Borntregers argued they would not sign any application, including those for building or sanitary permits, “that states they will adhere to building codes or adhere to all applicable codes, laws, statutes and ordinances.” The Borntregers reasoned that signing such a form would constitute a false statement because they had no intent to comply, and the making of false statements is prohibited by their religion.

However the trial court rejected their claim, concluding that the Borntregars' beliefs were not burdened by the application process. The applications merely contained an acknowledgement that the proposed construction is "subject to" applicable codes. The court said that signing this merely confirms the applicant's awareness of the rules, and is not a promise to comply.

Meanwhile the Eau Claire Leader-Telegram yesterday reported that the Borntregars, as well as 20 other Old Order Amish families, have now obtained building permits after the Wisconsin legislature changed the applicable law. The state now allows Amish not to install smoke and carbon monoxide detectors, and to have simple plumbing. However they still need permits for items like foundations, structure and entrances, and the Amish are willing to obtain these.

Two RLUIPA Zoning Decisions From Last Month

Two RLUIPA zoning cases of interest were decided last month. In Mesquite Grove Chapel v. DeBonis, (9th Cir., Dec. 18, 2015), the U.S. 9th Circuit Court of Appeals upheld a zoning official's denial of a permit to develop land zoned for church use. The court, rejecting plaintiff's RLUIPA challenge, said in part:

The primary burdens presented here—relocating or submitting a modified application—were not substantial, especially because Mesquite presented no evidence that other sites are unsuitable.

RLUIPA Defense blog reports on the decision.

In Matter of Septimus v Board of Zoning Appeals for the Incorporated Village of Lawrence, (NY Nassau Co. Sup. Ct., Dec. 16, 2015), a New York trial court upheld a creative judgment by a Zoning Board of Appeals in a case in which a synagogue sought to have a restriction on weekday use of its building-- part of it original zoning arrangements-- lifted so that it could hold regular weekday services. Neighbors objected because of concern about traffic. The BZA lifted the restrictive covenant precluding weekday services for a one year trial period, with the issue to be re-evaluated after the year had passed. The court found that under RLUIPA the original ban on weekday use constitutes a substantial burden, and the BZA's trial approach is the least restrictive means of furthering a compelling governmental interest in maintaining the integrity of an established residential neighborhood. New York Law Journal reports on the decision.

First Same-Sex Marriage Case In China Moves Forward

In China's Hunan Province, a court has accepted jurisdiction for the first time in a case seeking to legalize same-sex marriage in the country. According to a Reuters report yesterday, plaintiff Sun Wenlin says that last June an official in the Furong district civil affairs bureau rejected his application to marry his same-sex partner. Wenlin argues that China's marriage law protects the freedom to marry and provides for gender equality.

Dentist Sued For Harassing Staff With Constant Playing of Christian Music

According to yesterday's Clarkston News, four former employees of a Lake Orion, Michigan dentist have filed a religious discrimination and religious harassment lawsuit in state court against dentist Tina Marshall and her pastor. After Marshall and her daughter joined the Christian ministry of Dr. Craig Stasio, Marshall increasingly insisted on playing Christian music in the dental office. Even though her employees objected, eventually she insisted on playing the music all the time, even when the building was empty, "to keep the demons out." The suit alleges that Marshall also conducted daily morning prayers with staff members, which eventually became mandatory. She also prayed over patients receiving dental treatment. Employees resisted the music, and some of them either resigned or were fired. Eventually Marshall called on Stasio to restructure the office, and all but one of the current employees were fired and replaced by members of Stasio's ministry. The lawsuit alleges discrimination in violation of Michigan's Elliott Larsen Civil Rights Act.

Wednesday, January 06, 2016

Alabama Chief Justice Tells Probate Judges To Continue Refusing To Issue Same-Sex Marriage Licenses

Alabama Chief Justice Roy Moore is once again seeking to defy federal courts on the issue of same-sex marriage. (See prior posting.) In March 2015, the Alabama Supreme Court in the Alabama Policy Institute ("API") case ordered probate judges in the state to discontinue issuing marriage licenses to same-sex couples despite federal district court orders already holding Alabama's ban on same-sex marriage unconstitutional. (See prior posting.) Of course, in June 2015, the U.S. Supreme Court handed down the Obergefell decision, finding bans on same-sex marriage in Ohio, Tennessee, Michigan and Kentucky unconstitutional. Three days later, the Alabama Supreme Court invited parties in the API case to file briefs addressing the effect of the Obergefell decision on the Alabama order in API. Subsequently two probate court judges petitioned the Alabama Supreme Court for orders protecting their refusals to issue same-sex marriage licenses. All of these matters remain pending before the Alabama Supreme Court.

Today, Alabama Supreme Court Chief Justice Roy Moore issued an Administrative Order (full text) addressing what he described as the "confusion and uncertainty" that exists among Alabama probate judges. He says that "an elementary principle of federal jurisdiction [is that] a judgment only binds the parties to the case before the court," suggesting that technically Obergefell is not binding on Alabama judges. He went on:

As Administrative Head of the Unified Judicial System of Alabama, authorized and empowered pursuant to Section 12-2-30(b)(7), Ala. Code 1975, to "take affirmative and appropriate action to correct or alleviate any condition or situation adversely affecting the administration of justice within the state," and under Section 12-2-30(b)(8), Ala. Code 1975, to "take any such other, further or additional action as may be necessary for the orderly administration of justice within the state, whether or not enumerated in this section or elsewhere"...

IT IS ORDERED AND DIRECTED THAT: Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.

AL.com reports on today's order.

California Judges Will Still Be Able To Lead Church Boy Scout Troops

January 21, 2016 is the effective date of an amendment adopted last year to the California Code of Judicial Ethics that eliminated previous exceptions to the ban on California judges holding membership in any organization-- other than a religious organization-- that discriminates on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. A previous exception for non-profit youth organizations had allowed judges to continue their activities with the Boy Scouts. (See prior posting.)

In a little-noticed Oral Advice Summary (full text) posted Nov. 12, 2015, the California Committee on Judicial Ethics Opinions opened the door to judges continuing to participate in church-sponsored scout troops that bar gay leaders. The Committee said in part:

The Advisory Committee commentary to canon 2C advises that determining whether an organization practices invidious discrimination depends on such "relevant factors as whether the organization is dedicated to the preservation of religious . . . or other values of legitimate common interest to its members. . . ."

Historically, BSA has prohibited youth and adult membership based on sexual orientation. In January, 2014, BSA adopted a policy that no youth will be denied membership on the basis of sexual orientation. In July, 2015, BSA adopted a policy that BSA employees and non-unit-serving volunteers will not be denied membership on the basis of sexual orientation. The policy also states that chartering organizations, such as those sponsoring local troops, have the right to select adult scout leaders based on the chartering organization’s religious and moral values concerning sexuality.

Given these policies, the requesting judge must determine for himself whether or not his church-sponsored BSA troop excludes adult gay members based on his troop’s commonly-held religious values concerning sexuality....

Yesterday News Now reported on the November Oral Advice.

Northern Ireland Court Acquits Pastor Charged With Internet Broadcast of Anti-Muslim Sermon

In Belfast, Northern Ireland yesterday, a Magistrate's Court acquitted 78-year old Pastor James McConnell who had been indicted on two charges under Britain's Communications Act 2003 for anti-Muslim comments he made in a May 2014 sermon that was streamed online. The Belfast Telegraph reports that McConnell was charged with improper use of a public electronic communications network and causing a grossly offensive message to be sent by means of a public electronic communications network. At issue were the pastor's statements that Islam is a "doctrine spawned in hell," that it is heathen and satanic, and that he does not trust Muslims. The court ruled that while the statements are offensive, they did not reach the level of being "grossly offensive." The court also concluded that the pastor had not intentionally caused offense. According to the court:

He is a man with strong, passionate and sincerely held beliefs. In my view Pastor McConnell's mindset was that he was preaching to the converted in the form of his own congregation and like-minded people who were listening to his service rather than preaching to the worldwide internet.

His passion and enthusiasm for his subject caused him to, so to speak, 'lose the run of himself'."

He added that "the right to freedom of expression includes the right to say things or express opinions that offend, shock or disturb..."

UPDATE: Here is the full text of the opinion in DPP v. McConnell. Law & Religion UK has additional discussion of the decision.

Suit Challenges County's Historic Preservation Grants To Churches

Yesterday's Parsippany Daily Record reports that the Freedom From Religion Foundation and a local resident have filed suit in a New Jersey state court challenging the inclusion of churches and houses of worship as recipients of county historic preservation grants from Morris County (NJ). Some 32% of the $22.6 million in grants since 2003 have gone to churches. The suit contends that these grants violate Art. I, Sec. 3 of the New Jersey Constitution that provides:

nor shall any person be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform.

The county argues that churches should be eligible because of their historic value. The suit initially seeks a temporary injunction to bar payment of any grants awarded in the past two years that have not yet been disbursed. In 2014, the county awarded $1.2 million to 12 churches or houses of worship for items such as restoration of roofs or facades, and for document preservation.

Unusual Amicus Brief In SCOTUS Challenge To Texas Abortion Regulation

The U.S. Supreme Court has set March 2 for oral argument in Whole Woman’s Health v. Cole, a challenge to Texas regulations that could result in 75% of the state's abortion clinics being forced to close. (Case page from SCOTUblog). National Law Journal reports on an unusual amicus brief (full text) filed in the case this week. The brief was submitted by 107 women lawyers, as well as 6 current law students, with the aim of demonstrating the importance of abortion rights to members of the legal profession. According to the brief:

Amici are lawyers who have obtained abortions and who have participated in a wide variety of different aspects of the legal profession, including at private law firms, corporations, multinational governmental organizations, nonprofit organizations, and law schools....

Amici obtained their abortions at different ages and life stages, under a variety of circumstances, and for a range of reasons both medical and personal, but they are united in their strongly-held belief that they would not have been able to achieve the personal or professional successes they have achieved were it not for their ability to obtain safe and legal abortions.

Tuesday, January 05, 2016

Air Force Academy Says Football Players Can Continue Pre-Game On Field Prayers

Yesterday's Christian Post reports on last month's controversy over U.S. Air Force Academy football players praying together in the end zone before the start of games. The Military Religious Freedom Foundation complained after several players kneeled in prayer on the field before the start of the December 5 Falcons contest against the San Diego State Aztecs. MRFF argued that pre-game prayer pressures non-Christian athletes to join in. Before the Falcons final game on Dec. 29, the Air Force Academy countered with a statement, saying in part:

The United States Air Force Academy will continue to reaffirm to cadets that all Airmen are free to practice the religion of their choice or subscribe to no religious belief at all. The players may confidently practice their own beliefs without pressure to participate in the practices of others.

Mass. High Court Says Foster Parenting Can Be Denied Over Religious Belief In Corporal Punishment

In Magazu v. Department of Children and Families, (MA Sup. Jud. Ct., Jan. 4, 2016), the Massachusetts Supreme Judicial Court upheld a decision by a state agency denying an application by a Christian couple to become foster and pre-adoptive parents because the couple uses corporal punishment as a form of discipline in their home. State rules, particularly concerned with the emotional needs of abused and neglected children who often are placed in foster care, bar the use of corporal punishment by foster parents. The couple agreed that they would not use corporal punishment on a foster child, but refused to agree to refrain from spanking their own daughters in private when appropriate. According to the Court:

The Magazus assert that, in accordance with their sincerely held Christian beliefs, they use appropriate corporal punishment on their own two daughters as a matter of loving parenting and biblical understanding. They contend that the department's denial of their application to become foster parents substantially burdens their right to the free exercise of religion under art. 46, § 1, of the Amendments to the Massachusetts Constitution....

The Court disagreed, saying in part:

although the department's decision imposes a substantial burden on the Magazus' sincerely held religious beliefs, this burden is outweighed by the department's compelling interest in protecting the physical and emotional well-being of foster children.

(See prior related posting.)

Cert Filed In Challenge By Pharmacies To Required Filling of Emergency Contraception RX

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Stormans Inc. v. Wiesman, (cert. filed, 1/4/2016). In the case, the U.S. 9th Circuit Court of Appeals upheld rules of the Washington Pharmacy Quality Assurance Commission that provide only limited accommodation to pharmacists and pharmacies that object on religious grounds to filling prescriptions for emergency contraception. The rules require pharmacies to deliver all prescription medications, even if the owner has a religious objection. An individual pharmacist with religious objections may refuse to fill a prescription only if another pharmacist working for the pharmacy does so. (See prior posting.) ADF issued a press release announcing the filing of the petition.

Monday, January 04, 2016

Religious Health Care Ministries Show Growth

The Wall Street Journal this morning reports that a growing number of people have been moving to "health care ministries" since the enactment of the Affordable Care Act. The number of participants in these religious health-sharing arrangements has grown from 200,000 to 500,000 since 2010. According to the report:

The ministries, which operate outside the insurance system and aren’t regulated by states, provide a health-care cost-sharing arrangement among people with similarly held beliefs. Their membership growth has been spurred by an Affordable Care Act provision allowing participants in eligible ministries to avoid fines for not buying insurance....

The membership growth was largely unanticipated by ministry officials when the groups obtained an exception to the law. Only ministries in continuous operation since at least Dec. 31, 1999 are exempt from the ACA. The carve-out was intended to satisfy what at the time were relatively small religious groups that argued that their nonparticipation was a matter of religious freedom.

Officials are concerned both about the risk to participants from the unregulated operation of the arrangements, and about their impact on the Affordable Care Act insurance pool. (See prior related posting.)