Friday, June 24, 2016

HHS Sued Over Allowing Catholic Agencies To Limit Health Services To Unaccompanied Immigrant Minors

The ACLU today filed suit in a California federal district court alleging that officials in the U.S. Department of Health and Human Services have violated the Establishment Clause in allowing the U.S. Conference of Catholic Bishops and its sub-grantees to impose religiously based restrictions on the use of taxpayer funds to aid unaccompanied immigrant minors.  The complaint (full text) in ACLU of Northern California v. Burwell, (ND CA, filed 6/24/2016) alleges in part:
1. There are currently thousands of unaccompanied immigrant minors ... in the legal custody of the federal government.... Many have come to the United States fleeing abuse and torture in their home countries; many have been sexually abused or assaulted ....; some have also been trafficked for labor or prostitution....
2. The federal government is legally required to provide these young people with basic necessities, such as housing, food, and access to emergency and routine medical care, including family planning services, post-sexual assault care, and abortion.
3. To provide young people with these necessities, the government ... issues grants to private entities, including a number of religiously affiliated organizations.
4. ... Defendants authorize a few of these religiously affiliated organizations—such as the United States Conference of Catholic Bishops ... and its subgrantees across the country ... to refuse on religious grounds to provide information about, access to, or referrals for contraception and abortion, even if the young person in their care has been raped.
New York Times reports on the lawsuit.

Orthodox Church Lays Groundwork For Legal Enforcement of Ban on Church Use For Same-Sex Marriages

The Holy Synod of Bishops of the Orthodox Church in America last week adopted a statement (full text) titled Sincerely Held Religious Beliefs Regarding Marriage.  It is apparently designed to allow parishes and monasteries to legally enforce restrictions on use of their facilities for same-sex or transgender marriage ceremonies without courts invoking the ecclesiastical abstention doctrine to refuse to do so.  The introduction to the statement says in part:
The purpose of that statement was to articulate the basic and fundamental beliefs of the Orthodox Church in America regarding marriage and to do so in terms which could be understood and applied by federal, state, and local governmental officials without the necessity of any probing inquiry or interpretation which might require them to transgress limitations imposed on them by the First Amendment.
The statement says in part that "Marriage can only be between two people whose birth sex is male and female." It then calls for each diocese, parish, institution and monastery to adopt a statement declaring:
The (Name of the Parish/Hall/Facility) is the property of the (Name of the Parish/Institution/Monastery), a non-profit church organization located in (Location). Due to sincerely held religious beliefs, documented in the Biblical, dogmatic and canonical documents of the Orthodox Church, we do not permit the (Name of the Parish/Hall/Facility) to be used for the following purposes: events, services or receptions related to non-Orthodox sacraments (including, but not limited to, baptisms, weddings or funerals); non-Orthodox worship services; and partisan political or social rallies.

Texas Supreme Court: Challenge To Home-School Rules Does Not Require Exhaustion of Administrative Remedies

In McIntyre v. El Paso Independent School District, (TX Sup. Ct., June 24, 2016), the Texas Supreme Court in a 6-3 decision held that parents of home-schooled children were not required to exhaust administrative remedies before they challenged the constitutionality of state law provisions mandating curricular standards for home schools.  The parents alleged that their rights to due process, equal protection, and free exercise of religion under the Texas Constitution and U.S. Constitutions were infringed, along with their right to privacy under the Texas Constitution. According to the majority:
The McIntyres claim that the District and its attendance officer unconstitutionally investigated them and filed criminal complaints against them. They do not claim to be aggrieved by the school laws.
The dissent by Justice Green, joined by Justices Johnson and Brown argued:
[T]he Court today ignores our rules of statutory construction and holds that homeschool parents can avoid that exhaustion requirement simply by cloaking their school-law claims in constitutional language.
According to a Christian Science Monitor report on the decision, the parents stopped teaching their children a standard curriculum because they believed they would soon be "raptured."

Indonesian Police Investigate Whether Facebook Post Was Blasphemy

In Indonesia yesterday, Ade Armando, a lecturer in Communications Science at the University of Indonesia, was questioned by the Jakarta Police Special Criminal Investigation Unit after an employee of a media company filed blasphemy charges against Armando.  According to Tempo, the charges stem from a post by Armando on his Facebook page reading: "Allah is not an Arab. Allah will be happy if His verses are being recited with Minang, Ambon, Chinese, Hip hop, Blues style." Apparently the post was in response to a suggestion by Indonesia's Religious Affairs Minister for a Qur'an recitation festival.  Armando says that the post generated a charge that he was likening God to man. Art. 156a of the Indonesia Penal Code prescribes up to 5 years in prison to anyone "who deliberately in public gives expression to feelings ... which principally have the character of being at enimity with, abusing or staining a religion, adhered to in Indonesia...."

Thursday, June 23, 2016

9th Circuit Hears Challenge To Ban On Conversion Therapy

The U.S. 9th Circuit Court of Appeals yesterday heard oral argument (video of oral arguments) in Welch v. Brown.  In the case, a California federal district court rejected Free Exercise and Establishment Clause challenges to California's ban on mental health professionals providing "sexual orientation change efforts" (SOCE) for minors. (See prior posting.).  SFGate reports on yesterday's oral arguments.

7th Circuit: Bus Company Wrongly Refused Ad From Pro-Life Health Link

In Women's Health Link, Inc. v. Fort Wayne Public Transportation Corp., (7th Cir., June 22, 2016), the U.S. 7th Circuit Court of Appeals held that Fort Wayne's Citilink wrongly refused to accept an ad that Women's Health Link wanted to place on city buses. Citilink's rules bar ads that "express or advocate opinions or positions upon political, religious, or moral issues."  The proposed ad did not express any such opinion or position, but the health care referral service it advertised is pro-life and so urges alternatives to abortion.  The court held that Citilink's rules are limited to ad content, and do not relate to the advertiser's underlying policies or material that may be on the advertiser's website. It concluded: "Citilink’s refusal to post the ad was groundless discrimination against constitutionally protected speech." Reuters reports on the decision.

Muslim NYPD Officer Wins Temporary Relief Over Beard Length

Once again (see prior posting) the New York City Police Department's grooming rules are being challenged in court.  According to yesterday's New York Daily News, the NYPD on Tuesday imposed a 30-day suspension without pay on a Muslim officer who works as a law clerk for the Department. The officer, Masood Sayed, refused to shave his one-inch long beard. The NYPD had previously allowed him to wear a beard one millimeter in length, but said a longer beard would create problems with proper sealing of department-issued gas masks.  A federal district court yesterday, finding a likelihood of success by Sayed, barred the NYPD from taking further disciplinary action against him until a July 8 hearing.

No Police Liability For Telling Woman To Stop Praying During Investigation

In Sause v. Louisburg Police Department, 2016 U.S. Dist. LEXIS 80243 (D KA, June 17, 2016), a Kansas federal district court dismissed on qualified immunity grounds plaintiff's claim that her free exercise rights were infringed when a police officer investigating a noise complaint told plaintiff to stop praying while the officers were in the middle of talking with her in her apartment about the complaint. According to the court:
While Officer Stevans's instruction to Plaintiff to stop praying may have offended her, it does not constitute a burden on her ability to exercise her religion. Plaintiff fails to provide any allegations that would suggest Officer Stevans's actions coerced her into conduct contrary to her religious beliefs, or that he otherwise prevented her from practicing her religion.

Wednesday, June 22, 2016

HHS Rules That California Did Not Violate Weldon Amendment

Yesterday the Office for Civil Rights of the Department of Health and Human Services (OCR) issued a letter (full text) responding to complaints that the California Department of Managed Health Care violated the Weldon Amendment when it directed several health insurance companies to amend their plan documents to remove coverage limitations and exclusions for elective abortions. Subsequently California granted an exemption to one of the companies to allow it to offer plans that exclude abortion coverage to religious employers. The complaints were filed by churches, a religious organization, a church-run school and employees of a religiously-affiliated university.  In its Findings, OCR said in part:
By its plain terms, the Weldon Amendment's protections extend only to health care entities and not to individuals who are patients of, or institutions or individuals that are insured by, such entities.... Here none of the seven insurers that received the CDMHC letter ... objected to providing coverage for abortions..... As a result, there is no health care entity protected under the statute that has asserted religious or moral objections to abortion and therefore there is no covered entity that has been subject to discrimination within the meaning of the Weldon Amendment.
... A finding that CDMHC has violated the Weldon Amendment might require the government to rescind all funds appropriated ... to the State of California.... HHS' Office of General Counsel, after consulting with the Department of Justice, has advised that such a rescission would raise substantial questions about the constitutionality of the Weldon Amendment.
Los Angeles Times reports on OCR's ruling.

Trump Meets With Evangelical Leaders In New York

Washington Post has a lengthy account of Donald Trump's meeting in New York yesterday with a large group of Christian conservative leaders. Here are some excerpts from the article:
Donald Trump won a standing ovation from hundreds of Christian conservatives who came to New York City on Tuesday with a somewhat skeptical but willing attitude toward a man who has divided their group with comments on women, immigrants and Islam. In his comments, the presumptive GOP presidential nominee said he would end the decades-old ban on tax-exempt groups’ — including churches — politicking, called religious liberty “the No. 1 question,” and promised to appoint antiabortion Supreme Court justices....
Throughout the talk Trump emphasized that America was hurting due to what he described as Christianity’s slide to become “weaker, weaker, weaker.” He said he’d get department store employees to say “Merry Christmas” and would fight restrictions on public employees, such as public school coaches, from being allowed to lead sectarian prayer on the field....
While polls show that the majority of evangelicals — who make up about a fifth of the country — are favorable toward Trump, his campaign has bitterly divided Christian conservatives in general. Those who oppose him do so strongly, and later Tuesday, a separate group of conservatives — including leading evangelicals — were meeting to strategize about a possible third candidate.... 
“This meeting marks the end of the Christian Right,” Michael Farris, a national homeschooling pioneer and longtime figure of the Christian Right, wrote on his Facebook page Tuesday.  He noted that he was present at the first gathering of the Moral Majority in 1980: “The premise of the meeting in 1980 was that only candidates that reflected a biblical worldview and good character would gain our support. … Today, a candidate whose worldview is greed and whose god is his appetites (Philippians 3) is being tacitly endorsed by this throng. … This is a day of mourning.”
Also yesterday the Trump campaign announced a new 25-member Evangelical Executive Advisory Board.  The Board includes Michele Bachmann, James Dobson, Jerry Falwell and Ralph Reed.  A larger Faith and Cultural Advisory Committee will be announced later this month.  [Thanks to Scott Mange for the lead.]

UPDATE: Here is a full transcript of Trump's meeting.

4th Circuit Revives Some Claims In Challenge To School District's Graduation Practices

American Humanist Association v. Greenville County School District, (4th Cir., June 21, 2016), is a challenge to the graduation ceremony prayer policy of the Greenville County, South Carolina school district, as well as to its practice of holding some graduation ceremonies at a religious chapel on a local college campus.  In a largely procedural ruling, the U.S. 4th Circuit Court of Appeals vacated in part the district court's dismissal of the case.  On the challenge to graduation prayer, the court held that because the individual plaintiffs named in the lawsuit had moved out of state while the appeal was pending so their children no longer attended school in the district, the suit was moot as to them.  However it remanded for further discovery to determine whether the organizational plaintiff, American Humanist Association, continues to have standing because of the interests of other of its members.

The appeals court agreed with the district court that the claim for injunctive relief to bar holding of future graduation ceremonies in religious venues should be dismissed because while the case was still pending in district court plaintiffs moved within the district to schools that had never used religious venues for school events.  However the appeals court held that plaintiffs continued to have standing to pursue their claim for nominal damages because of past use of the religious chapel for graduation. American Humanist Association issued a press release announcing the decision. (See prior related posting.) Greenville News reports on the decision.

Tuesday, June 21, 2016

FLDS Leader Flees While On Bond Awaiting Trial

Lyle Jeffs, a leader of the polygamous FLDS Church, has fled while out on bond awaiting trial on charges of conspiracy to commit food stamp fraud and conspiracy to commit money laundering.  As reported by AP and KUTV News, after being denied bond several times as a potential flight risk, earlier this month Jeffs was finally released in home confinement on the condition he wear a GPS monitor and leave the Salt Lake City house where he was staying only for work, doctors' appointments and religious services.  A warrant for Jeffs arrest was issued Sunday.

Court Denies Preliminary Injunction Against Mississippi's Conscience Protection For County Clerks

In Alford v. Moulder, (SD MS, June 20, 2016), a Mississippi federal district court denied a preliminary injunction in a suit by a same-sex couple who are challenging Mississippi's recently enacted Freedom of Conscience Law, HB 1523.  The suit specifically challenges provisions in the law that allow county clerks to recuse themselves on religious or moral grounds from issuing marriage licences. (See prior posting.) The court held that plaintiffs failed to show that injury to them is "imminent" since they merely allege that they plan to apply for a marriage license sometime within the next three years.  Plaintiffs immediately filed a Motion for Reconsideration.

Meanwhile, the same judge heard oral arguments yesterday in a separate case that is also challenging HB 1523.  AP reports that in this suit, plaintiffs are arguing that provisions allowing clerks to recuse themselves in favor of another employee issuing the license could create public humiliation for a same-sex couple when they apply for a license.  "There can't be separate-but-equal marriage. There can't be Jim Crow kind of marriage," the couples' attorney told the court.  Four separate cases challenging HB 1523 have been filed, and the judge will hear oral arguments in the remaining two later this week.

New York Legislature Punts On Extending Statute of Limitations For Child Sex Abuse Claims

As reported by the New York Daily News, the New York legislature adjourned for the year early last Saturday morning without taking action on a pending bill, the Child Victims Act, that would have extended the statute of limitations for child sexual abuse claims by 5 years, created a 6-month window for currently stale claims, and treated suits against public and private entities alike. Bill Donohue, president of the Catholic League for Civil and Political Rights, said in a statement posted yesterday that he is proud of his organization's role in preventing enactment of the law, arguing in part:
If the statute of limitations were lifted on offenses involving the sexual abuse of minors, the only winners would be greedy and bigoted lawyers out to line their pockets in a rash of settlements. The big losers would be the poor, about whom the attorneys and activists care little: When money is funneled from parishioners to lawyers, services to the needy suffer.

New Report on Islamophobia In the United States

Yesterday the Council on American-Islamic Relations and the Center for Race and Gender at UC Berkeley released a report titled Confronting Fear: Islamophobia and its Impact in the U.S. 2013-2015.  The report suggests four priority areas in creating a national strategy to further American understanding of Islam:
1. ... [E]nhancing Muslim involvement in the issues of other domestic communities which face challenges to full and equal protection and participation in society.
2. Establishing in the public conscience that Islamophobia is identical to other forms of prejudice and undermines American ideals.
3. Empowering a diverse range of legitimate voices to persuasively contribute, particularly in the news media, to the views of Islam and American Muslims within public dialogue.
4. Enhancing community ability to impact U.S. political and policy life through public service, voting, and meaningful political contributions.
Examining the impact of Islamophobia in the United States, the report finds:
The U.S.-based Islamophobia network’s inner core is currently comprised of at least thirty-three groups whose primary purpose is to promote prejudice against, or hatred of, Islam and Muslims.... Between 2008 and 2013, inner-core organizations had access to at least $205,838,077 in total revenue. 

Monday, June 20, 2016

Paper Calls Out Anti-Semitic Harassment of Journalists

The Forward today is calling attention to the continuing anti-Semitic harassment on social media (mainly Twitter) of Jewish journalists (or those perceived to be Jewish).  The anti-Semitic messages have often come in response to journalists' coverage of Donald Trump's campaign. A June 7 Washington Post piece has examples. The Forward says:
Online bullying is a non-partisan activity — both the far left and the far right are quite good at it — but the virulent anti-Semitism many journalists experience today comes from what is known as the “alt-right,” shadowy white supremacists who mainly hide behind the anonymity of Twitter to traffic in horrible Holocaust imagery and directly threaten Jews.
Many of these threats draw on connections with Trump’s presidential campaign, using Trump’s image and targeting his critics, including several of our regular writers. Even if you don’t believe that the presumed Republican standard bearer has stoked this cyber-hate (which is a generous assumption), you have to admit that he appears to have done nothing to minimize or condemn it.
As a symbolic protest, The Forward says it will refuse for 24 hours (starting tomorrow) to publish anything mentioning Trump's name or his campaign.

Israeli Court Tells City To Remove Religiously Inspired Signs Directing Women To Wear Modest Clothes

In Israel yesterday, the Jerusalem District Court ordered the mayor of the city of Beit Shemesh to remove signs posted around the city by ultra-Orthodox Jews instructing women to wear long sleeves and long skirts. Other signs tell women to keep off sidewalks near synagogues and yeshivas where men congregate.  According to today's Haaretz, the suit seeking removal of the signs was filed three years ago on behalf of four Orthodox women who live in Beit Shemesh. They argue that the signs encourage violence and harassment against women who ignore them.  A Magistrate's Court ruled in the women's favor last year (see prior posting), but the city has ignored the ruling. So plaintiffs went to a higher court which has now given the city's mayor three weeks to remove the signs, and told the city to act more forcefully in the future to prevent new signs from going up.

Donald Trump On Profiling of Muslims

Yesterday in a phone interview with program host John Dickerson on CBS's Face the Nation, presumptive Republican nominee Donald Trump spoke about the possibility of profiling Muslims in the wake of the attack in Orlando on a gay nightclub. Here is an excerpt from the full transcript:
DICKERSON: When you talk about political correctness, should a Muslim buying ammunition and weapons get extra scrutiny?
TRUMP: I don't know about that.
I think, right now, we have some pretty big problems. And there are problems coming out of radical Islamic -- the radical Islamic groups. You have a very, very strong group of people that is radical Islamic, and that seems to be a problem.
DICKERSON: And you said you would check respectfully the mosques. How do you respectfully check a mosque?
TRUMP: Well, you do as they used to do in New York, prior to this mayor dismantling.
By the way, if you go to France right now, they're doing it in France. In fact, in some instances, they are closing down mosques. People don't want to talk about it. People aren't talking about it. But look at what they're doing in France. They are actually closing down mosques.
DICKERSON: Can I ask you just a bottom-line question before we move on? You like to speak plainly. In December, we talked, and you said there possibly should be profiling. Just as a bottom line here, are you talking about increasing profiling of Muslims in America?
TRUMP: Well, I think profiling is something that we're going to have to start thinking about as a country. And other countries do it.
And you look at Israel and you look at others, and they do it. And they do it successfully. And I hate the concept of profiling. But we have to start using common sense, and we have to use -- we have to use our heads.
I see people that -- and I have seen it recently. We had a case where very much in my case, where we had -- we had tremendous numbers of people coming into a speech I was making. And people that obviously had no guns, had no weapons, had no anything, and they were being -- they were going through screening.
And they were going through the same -- the same scrutiny, the absolute same scrutiny as somebody else that looked like it could have been a possible person. So, we really have to look at profiling. We have to look at it seriously.
And other countries do it. And it's not the worst thing to do. I hate the concept of profiling, but we have to use common sense. We're not using common sense.

Recent Articles and Books of Interest

From SSRN:
From SmartCILP:
Recent Books:

Sunday, June 19, 2016

Indian Court Sentences 24 For Roles In 2002 Gujarat Religious Riots

On Friday, a court in India imposed sentences on the 24 defendants who were convicted earlier this month in the 2002 killings of 69 Muslims during religious riots in Gujarat state. AFP reports that eleven of the Hindu defendants were sentenced to life in prison for their part in the massacre at the Gulbarg Society housing complex.  The court sentenced twelve others to seven years in jail, and the remaining defendant to ten years for rioting and arson.