Religion Clause

Monday, June 27, 2016

Supreme Court Invalidates Texas Abortion Access Law

In a 5-3 decision today in Whole Women's Health v. Hellerstedt, (Sup. Ct., June 27, 2016), the U.S. Supreme Court struck down key provisions in Texas' controversial statute regulating access to abortions. The majority opinion, written by Justice Breyer, held that both the requirement for a physician performing an abortion to have admitting privileges in a near-by hospital and for abortion clinics to meet standards that apply to ambulatory surgical centers place a substantial obstacle in the path of women seeking a pre-viability abortion and place an undue, unconstitutional burden on abortion access. Justices Kennedy, Ginsburg, Sotomayor and Kagan joined Justice Breyer's opinion. Justice Ginsburg also filed a concurring opinion. Justice Thomas filed a dissenting opinion. Justice Alito also filed a dissenting opinion which Chief Justice Roberts and Justice Thomas joined.

Religious Tracts Cannot Be Distributed On Arena Plaza

In Ball v. City of Lincoln, Nebraska, (D NE, June 23, 2016), a Nebraska federal district court dismissed an attempt to enjoin authorities from enforcing a policy that, among other things, bars leafleting on a Plaza Area outside the Pinnacle Bank Arena unless requested by a person renting out the Arena or the artists or productions they represent. (Full text of Use Policy.) The Arena was jointly constructed by the city of Lincoln and the University of Nebraska. Plaintiff Larry Ball handed out religious tracts in the Plaza Area on several occasions, and was cited for trespass. The court upheld the Arena's policy, finding that the Plaza Area is a non-public forum and that the restrictions on its use are reasonable because they are neutral and do not curtail free speech in nearby areas. Lincoln Journal Star reporting on the decision says that an appeal is planned.

Top Religious Leaders React To Brexit

Several top religious leaders have issued statements reacting to Thursday's vote in Britain to exit from the European Union. Here are links:

Sunday, June 26, 2016

Ark Encounter Set To Open In Kentucky

Today's New York Times has a background piece on Kentucky's Ark Encounter-- the massive $102 million Noah's Ark display scheduled to open July 7. The project has been the subject of extensive controversy over whether state tourism subsidies are appropriate. (See prior posting.) The Times quotes Ark Encounter promoter, Ken Ham:

The reason we are building the ark is not as an entertainment center. I mean it’s not like a Disney or Universal, just for anyone to go and have fun. It’s a religious purpose. It’s because we’re Christians and we want to get the Christian message out.

Court Says Religious Autonomy Precludes Adjudication of Suit By Torture Victim

In a fascinating decision handed down June 17, an Oklahoma trial court held that the "religious autonomy doctrine" requires it to dismiss a suit against a U.S. church by a convert from Islam to Christianity who was captured and tortured in Syria because of his conversion. The facts are set out more fully in a complaint (full text) filed in 2014. A Tulsa, Oklahoma resident who was born in Syria decided to convert, but told First Presbyterian Church leaders that his conversion had to remain confidential because he periodically traveled back to Syria and the punishment for apostasy under Sharia law was death. Despite assurances of confidentiality, the church published an announcement of his baptism in its Order of Worship, which was posted on the World Wide Web. After traveling back to Syria, plaintiff was bound, beaten and tortured by radical Muslims who threatened to behead him. He eventually escaped. His suit alleges that the church is guilty of negligence, breach of contract and outrageous conduct leading to extreme emotional distress.

In Doe v. First Presbyterian Church USA of Tulsa, Oklahoma, (OK Dist. Ct., June 17, 2016), the court held that the public dissemination of the names of those who have been baptized "is a key part of how the Church requires a conversion and baptism to be 'visible" to the world." The court went on to say:

the simple dispositive issue is whether the public dissemination of Plaintiff's name as a baptized person is "rooted in religious belief"....

[A] secular Court like this one must not consider claims ... that arise out of a sacrament because a sacrament is part of the most sacred beliefs of that religious institution.... Defendants' deeply held religious belief about the visible, public nature of baptism must not be disturbed by this Court. [emphasis in original]

Tulsa World reports on the decision, with additional background.

Recent Prisoner Free Exercise Cases

In Russell v. Helder, 2016 U.S. Dist. LEXIS 79862 (WD AR, June 20, 2016), an Arkansas federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 79870, May 18, 2016), and refused to dismiss a suit by a Wiccan inmate who was seeking a vegan diet for religious reasons.

In Maon v. State Department of State Hospitals, 2016 Cal. App. Unpub. LEXIS 4576 (CA App., June 21, 2016), a California state appeals court upheld a decision by authorities at a state mental hospital refusing to allow a patient detained there who was to be married in the hospital's visiting room to wear a tuxedo for the ceremony in accordance with Buddhist tradition.

In Rivera v. Raines, 2016 U.S. Dist. LEXIS 82495 (SD IL, June 23, 2016), an inmate complaining about the refusal of prison officials to permit Nation of Gods & Earths to hold religious services was allowed by an Illinois federal district court to move ahead with his challenges under the 1st Amendment, the Equal Protection Clause, and his official capacity RLUIPA claims.

Free Exercise Defense To Food and Drug Act Indictment Rejected

In United States v. Girod, 2016 U.S. Dist. LEXIS 82365 (ED KY, June 24, 2016), a Kentucky federal district court refused to dismiss an indictment under the Food, Drug and Cosmetic Act against defendant who claimed that his religious faith rejects FDA testing. Defendant was charged with operating an establishment that manufactured and marketed products for the treatment of skin disorders, cancer, sinus infections, and other ailments, without required registration with the FDA. (See opinion at 2016 U.S. Dist. LEXIS 81047, June 22, 2016). The court held that defendant did not properly raise his free exercise objection, but that even if he had he had not shown that the Act imposes a substantial burden on his exercise of religion.

Saturday, June 25, 2016

ADL Issues Annual Audit of Anti-Semitic Incidents

This week the ADL issued its 2015 Audit of Anti-Semitic Incidents. It showed 941 incidents in the United States last year, a 3% increase from 2014. Fifty-six of the incidents were assaults (compared to 36 in 2014). Overall, the number of anti-Semitic incidents on college campuses grew to 90 (compared to 47 in 2014). According to the ADL, the number of anti-Semitic incidents peaked in 2006 (1,554 incidents that year), and has generally been on the decline since then. The Audit adds:

ADL witnessed an explosion of hate online, especially on social media platforms in 2015. While the Audit includes incidents of online anti-Semitism reported to ADL in which an individual or institution is explicitly targeted, it does not count general anti-Semitic expressions online.

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.