Pope Francis Extends Priests' Authority To Forgive Abortion

As reported by Vatican Radio, Pope Francis yesterday issued an apostolic letter, Misericordia et Misera  (“Mercy and Misery”), which extends a number of initiatives begun in the just-ended Jubilee Year of Mercy.  One portion of the Pope's letter may color legal and political debate in the United States:

... [L]est any obstacle arise between the request for reconciliation and God’s forgiveness, I henceforth grant to all priests, in virtue of their ministry, the faculty to absolve those who have committed the sin of procured abortion. The provision I had made in this regard, limited to the duration of the Extraordinary Holy Year, is hereby extended, notwithstanding anything to the contrary. I wish to restate as firmly as I can that abortion is a grave sin, since it puts an end to an innocent life. In the same way, however, I can and must state that there is no sin that God’s mercy cannot reach and wipe away when it finds a repentant heart seeking to be reconciled with the Father. May every priest, therefore, be a guide, support and comfort to penitents on this journey of special reconciliation.

The Washington Post reports that in a press conference a Holy See official, Monsignor Rino Fisichella, said that the pronouncement covers doctors, nurses and others involved in an abortion, as well as the woman obtaining the procedure.

In a separate matter, the Pope's apostolic letter also validated continued hearing of confessions by priests of the controversial right-wing Society of St Pius X. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Amos A. Israel-Vleeschhouwer, The Mandate System as a Messianic Alternative in the Ultra-Religious Jurisprudence of Rabbi Dr. Isaac Breuer, (49(3) Israel Law Review 339-363 (2016)).
• Scott Altman, Taking Precautions When Shaping a Child's Values, (USC Law Legal Studies Paper No. 16-34 (2016)).
• Kathryn Chan, Corporate and Trust Law Dimensions of the Trinity Western University Law School Debate, (November 14, 2016).
• Mickell Branham, Listening to Victims, (in Death Penalty and the Victims, United Nations Human Rights Office of the High Commissioner, September 1, 2016).
• Brice Dickson & Conor McCormick,The Right to Education for Humanity, (67(4) Northern Ireland Legal Quarterly 409-432).
• Joe Pratt, The False Materialism of America's Death Penalty, (November 16, 2016).

From SmartCILP:

• Garrett Epps, Public Funding and the Road to Damascus: The Legacy of Employment Division v. Smith, 94 Oregon Law Review 659-671 (2016).
• Marion Goldman, Dave Frohnmayer and the Apocalypse that Evaporated, 94 Oregon Law Review 633-657 (2016).
• Symposium. My Religion, My Rules: Examining the Impact of RFRA Laws on Individual Rights. Foreword by Bryan A. Hum; articles by Shai Stern, Scott D. Pollock and Bill Piatt. 79 Albany Law Review 621-704 (2015/2016).
• Symposium on the Meaning of Religious Liberty in the Anglo-American Legal Tradition. Articles by Matthew J. Franck, Andy G. Olree, Jonathan Den Hartog, Scott A. Merriman and Jeffrey B. Hammond. 7 Faulkner Law Review 1-128 (2015).
• Imani Jaafar, Practical Islamic Estate Planning: A Short Primer, 42 Mitchell Hamline Law Review 925-939 (2016).
• Charles J. Russo, Religious Freedom in Faith-Based Educational Institutions in the Wake of Obergefell v. Hodges: Believers Beware, 2016 BYU Education & Law Journal 263-308.
• Colloquium: Religious Liberty after Hobby Lobby: A Panel of the 2014 Federalist Society National Lawyers Convention. Introduction by William L. Saunders; Hon. Diarmuid F. O'Scannlain, moderator; Kim Colby, William P. Marshall and Robin Fretwell Wilson, panelists. 48 Connecticut Law Review 969-1011 (2016) [Video of Panel Discussion].

Group Launches Annual "Friend or Foe" Christmas Campaign

Liberty Counsel announced last week that it has launched its fourteenth annual Friend or Foe Christmas Campaign, saying in part:

Liberty Counsel is actively monitoring cases across the country where there is intimidation by officials and groups to remove the celebration of Christmas in public and private sectors. These threats include atheist groups seeking to ban nativity scenes from public property, senior living centers that prohibit residents from singing Christmas carols, public schools that ban students from wearing the Christmas colors of red and green, school officials who censor religious words from Christmas carols and retailers which profit from Christmas while pretending it does not exist.

Its announcement links to a memorandum on legal issues and its annual "Naughty & Nice" list of retailers focusing on whether or not companies use the term "Christmas" in their advertising.

Recent Prisoner Free Exercise Cases

In Sanchez v. Mitchell, 2016 U.S. Dist. LEXIS 157853 (D MA, Nov. 15, 2016), a Massachusetts federal district court dismissed an inmate's complaint that his free exercise rights were infringed when he was removed from the kosher diet list because he had received 3 incident reports within 30 days.

In Demara v. Barker, 2016 U.S. Dist. LEXIS 158191 (ED CA, Nov. 15, 2016), a California federal magistrate judge dismissed with leave to amend a Native American inmate's complaint that authorities lost a religious package sent to him containing an engraved flute and ceremonial beads and instruments. This prevented him from attending flute ceremonies which caused him to be ostracized by his tribe.

In Kindred v. King, 2016 U.S. Dist. LEXIS 158203 (ED CA, Nov. 15, 2016), a California federal magistrate judge, while dismissing a number of claims by a Native American civil detainee of interference with his religious practices, permitted plaintiff to move ahead with a claim that two of the defendants denied him spiritual or sacred items that do not implicate safety and security concerns.

In Sirleaf v. Wall, 2016 U.S. Dist. LEXIS 158256 (ED VA, Nov. 15, 2016), a Virginia federal district court dismissed for failure to exhaust administrative remedies a complaint by an inmate who was "a member of the Common Wealth of Israel" that he was denied Ecumenical Pilgrim Feast, worship items and the right to celebrate the birthday and coronations of Emperor Haile Selaisse.

In Venkataram v. Bureau of Prisons, 2016 U.S. Dist. LEXIS 158767 (SD FL, Nov. 15, 2016), a Florida federal magistrate judge recommended dismissing with leave to amend a Hindu inmate's complaint that he was denied vegetarian meals that conform to his religious beliefs.

In Amaker v. Fischer, 2016 U.S. Dist. LEXIS 158785 (WD NY, Nov. 16, 2016), a New York federal magistrate judge allowed a Nation of Islam inmate to file an amended complaint alleging that a corrections officer prevented him from possessing his religious materials.

In Hearns v. Gonzales, 2016 U.S. Dist. LEXIS 159016 (ED CA, Nov. 15, 2016), a California federal magistrate judge refused to allow an inmate to amend his complaint to add a claim that a corrections officer poured bleach over his prayer rug and then confiscated it in retaliation for his filing this lawsuit.

In Feiger v. Smith, 2016 U.S. Dist. LEXIS 159731 (ED CA, Nov. 16, 2016), a California federal magistrate judge dismissed a Jewish inmate's claims under state law (Unruh Civil Rights Act and Bane Act) regarding problems with the kosher diet program and religious services, but rejected defendants' immunity defense.

In Olodumare v. U.S. District Court, 2016 U.S. Dist. LEXIS 160369 (SD FL, Nov. 17, 2016), a Florida federal magistrate judge dismissed as "a hodgepodge of unsupported assertions written in incomprehensible legalistic gibberish" a pleading captioned "All Writs of Habeas Corpus Declared by God."

Mother Challenges State's Law On Emancipation of Minors

In a suit filed earlier this week in a Minnesota federal district court, the mother of a 17-year old challenges the Minnesota statute that allows minors who are living separate and apart from their parents or legal guardians and who are managing their own financial affairs to alone consent to their own personal medical, dental, mental and other health services.  The complaint (full text) in Calgaro v. St. Louis County, (D MN, filed 11/16/2016), challenges the furnishing of medical treatment to the 17-year old-- including furnishing prescription drugs and clinical treatment for gender transition from male to female. The complaint also challenges a determination by the minor's school district of emancipation so that the mother is not entitled to the teen's school records or to participate in the minor's educational decisions.  Plaintiff claims that, because there is no procedure for the parent to challenge the determination of emancipation that was made without court order, this deprives her without due process of her parental rights to make decisions on the care of her child. Thomas More Society announced the filing of the lawsuit. NBC News reports on the litigation.

Missouri Appeals Court: Frozen Pre-Embryos Are Marital Property, Not Children

In McQueen v. Gadberry, (MO App., Nov. 15, 2016), a Missouri state appellate court in a 2-1 decision held that frozen pre-embryos created from the husband's sperm and the wife's eggs for the purpose of in vitro fertilization are to be treated as marital property in a divorce proceeding, rather than being treated as children. The appeals court upheld the trial court's award of the pre-embryos to the husband and wife jointly with the stipulation that they could be used only with the consent of both parties.  The wife had argued that because Mo. Rev. Statutes Sec. 1.205 declares that "the life of each human being begins at conception," the court should have treated the pre-embryos as children and awarded her custody so that she could have them implanted to become pregnant. The majority held, however, that applying this declaration to pre-embryos would infringe the father's right to privacy and his right not to procreate.  The majority observed:

We balance the interests of the parties in this case because the frozen pre-embryos are still in vitro and have not been transferred to or implanted in McQueen’s uterus, and therefore, the disposition of the frozen pre-embryos does not implicate McQueen’s right to bodily integrity in the area of reproductive choice under Roe which would outweigh any of Gadberry’s interests in avoiding parenthood.

Judge Dowd, dissenting, argued that the embryos should have been treated as children and the trial court should have applied the statutory provisions on child custody in awarding them. He argued that the father already made a reproductive decision in creating the embryos and so has no further reproductive decision to protect. AP reports on the decision.

NY Town Settles Construction Dispute With Sikh Temple

According to NBC News, on Wednesday a settlement agreement between the Town of Oyster Bay, New York and the Guru Gobind Singh Sikh Center was filed with a federal district court. The Sikh Temple had sued under RFRA claiming that the town's stop work and environmental review orders were issued to appease residents who are hostile to the temple and its worship. (See prior posting.) Under the settlement the temple agreed to make certain construction changes and the town board agreed that it would no longer be authorized to serve as the oversight committee for the site plan approval process.

Spanish Judge Clears Artist Who Used Stolen Consecrated Hosts

In Madrid, Spain, a trial court judge this week dismissed a suit which charges artist Abel Azcona with offending religious sentiments in violation of Spanish Penal Code Sec. 525.  The section prohibits publicly disparaging the dogmas, beliefs, rites or ceremonies of members of a religious confession. As reported by CNA:

Azcona stole more than 240 consecrated hosts from Masses celebrated in the cities of Madrid and Pamplona. He later took nude photos of himself arranging them on a floor to spell the word ‘pederasty.’ In November 2015, he displayed the photos as part of an art display in a city-owned exhibition hall available for public use. When that exposition was over, the would-be artist sold the consecrated hosts for more than $268,000....

The judge claimed Azcona made use of the hosts "discreetly, without his conduct being able to be characterized as disrespectful, offensive or irreverent." The exhibition of the artwork "does not constitute derision of the beliefs, rites or ceremonies of the Catholic Church nor is it an affront to those who profess or practice said beliefs," according to the judge.

 The Spanish Association of Christian Lawyers which filed the suit (see prior posting) says it will file an appeal.

Suit Challenging Indiana Anti-Discrimination Laws Moves Ahead

As reported by the Indianapolis Star, an Indiana state trial court judge is allowing a lawsuit filed by three conservative advocacy organizations to move ahead.  The suit challenges laws barring discrimination on the basis of sexual orientation.  The organizations assert that the laws infringe on their free exercise rights. The suit challenges the ordinances of four Indiana cities as well as the so-called "fix" to Indiana's Religious Freedom Restoration Act that prevents using RFRA to discriminate. The order (full text) in Indiana Family Institute, Inc. v. City of Carmel, Indiana, (IN Super. Ct., Nov. 16, 2016), however, requires plaintiffs to file an amended complaint adding the state of Indiana as a party. In a statement (press release), plaintiffs' counsel said:

Plaintiffs currently stand stripped of the heightened legal protection provided under RFRA and must host speakers and hire employees who advocate for same-sex marriage contrary to their religious beliefs. We believe in the constitutionally protected free-exercise of religion that affects people who advocate for traditional marriage, just as it protects all other religious beliefs.

Developments In Two Diocese Bankruptcies

There have been developments this week in bankruptcy proceedings of two different Catholic dioceses.  RNS reports that the Archdiocese of St. Paul and Minneapolis has filed a revised plan under Chapter 11 offering to pay $132 million to settle nearly 450 child sex abuse claims asserted against its clergy.  Lawyers for the claimants, however, say that the offer is far too small.

Meanwhile in New Mexico, the Diocese of Gallup has been prevented from finalizing its exit from bankruptcy because of a new suit filed against it by Sisters of the Blessed Sacrament, a religious order that founded St. Michael Indian School in Arizona.  According to Tuesday's Alamogordo Daily News, a new suit against the Sisters of Blessed Sacrament claims a woman was sexually abused at the school by a Franciscan friar. The Sisters have in turn filed suit against the Diocese of Gallup.

Indonesian Governor Being Prosecuted For Blasphemy For Campaign Statement

In Indonesia, Basuki Tjahaja Purnama (also known as "Ahok"), former Deputy Governor of Jakarta who has been serving as its governor since late 2014 has now been charged with blasphemy because of statements made in his campaign for re-election as governor in the upcoming February elections. As reported yesterday by AlJazeera, Ahok who is a member of the Chinese Christian minority in Indonesia angered Muslims when he accused his election opponents of misusing against him a Quranic verse that suggests Muslims should not choose non-Muslims as leaders. After more than 100,000 Muslims took to the streets to demand Ahok's prosecution, the police began an investigation and eventually concluded that the case should go to court for a determination of whether of not Ahok committed blasphemy.  If found guilty, he could be sentenced to 5 years in prison.  Ahok has apologized, saying he was criticizing his election opponents, not the Quran.

In Israel, Anti-Noise Bill Aimed At Mosques Falters When Legislators Realize It Also Bars Jewish Sabbath Alerts

The Washington Post reported yesterday that in Israel this week, ultra-Orthodox Jewish government ministers stopped progress in the Knesset (Parliament) on a government-approved bill that would have prevented religious institutions from using loud speakers.  The law was aimed at mosques in which the five-times-per-day calls to prayer are broadcast through loudspeakers attached to the top of minarets.  Jewish Israelis living close to Muslim neighborhoods have complained for years, especially about the early morning calls to prayer that wake them. Arab Israelis had strongly opposed the law, one Arab Knesset member calling it "a populist and racist attempt to incite against the Arab public."  What stopped the bill however was the realization by Orthodox Jewish Knesset members that the bill, written in broad terms, would also outlaw sirens used in Jewish neighborhoods to alert Jews to the start of the Sabbath.

Jehovah's Witness Sues After He Is Fired For Refusing To Wish Customers "Merry Christmas"

In a suit filed last week in a Tennessee federal district court, plaintiff who worked as a cashier at a Murphy Oil service station alleged that the actual reason that he was fired from his position was that his district manager objected to his refusal to wish customers a "Merry Christmas."  The complaint (full text) in Appleyard v. Murphy Oil USA, Inc., (WD TN, filed 11/10/2016), says that plaintiff's Jehovah's Witness religion does not celebrate Christmas and prohibits its members from wishing others a Merry Christmas.  Plaintiff contends that his firing amounts to religious discrimination in violation of Title VII of the 1964 Civil Rights Act. BNA Daily Labor Report has more on the lawsuit.

EEOC Settles With Trucking Firm Over Complaints By Sikh Job Applicants

The EEOC announced yesterday that it has entered a conciliation agreement with J.B. Hunt Transport, Inc. in connection with complaints by four East Indian Sikh job applicants based in California who say the company refused to provide an alternative to its hair sample drug testing policy.  Maintaining uncut hair is a Sikh article of faith. Under the agreement, which avoids litigation, the company will pay $260,000 in damages and will extend conditional offers of employment to the four complainants.  The company also agreed to designate an EEO consultant, develop complaint procedures, and conduct employee EEO training.

Cert. Denied In Kansas Science Curriculum Challenge

On Monday, the U.S. Supreme Court denied review in COPE v. Kansas State Board of Education, (Docket No. 16-229, cert. denied 11/14/2016). (Order List.)  In the case, the U.S. 10th Circuit Court of Appeals dismissed on standing grounds an Establishment Clause challenge to Kansas' curriculum standards for science instruction in grades K-12, saying that "COPE offers only threadbare assertions that the Standards intend to promote a non-religious worldview." (See prior posting.) Topeka Capital-Journal reports on the denial of certiorari.

RFRA Does Not Protect FLDS Members' Food Stamp Fraud

As previously reported, in February the U.S. Attorney's Office for the District of Utah announced indictments against eleven leaders and members of the polygamous FLDS Church charging them with conspiracy to commit food stamp fraud and conspiracy to commit money laundering.  Under FLDS doctrine known as the Law of Consecration, faithful members who were food stamp recipients were required to donate their benefits to the FLDS church through a clearinghouse known as the Bishop’s Storehouse. Food and household items were then redistributed to all in the community, whether or not they were food-stamp eligible. Now, in United States v. Jeffs, (D UT, Nov. 15, 2016), a Utah federal district court rejected the argument that this practice is protected by RFRA and the 1st Amendment.

The court held that one of the defendants, FLDS leader Lyle Jeffs, did not have a sincerely held belief in the Law of Consecration; however other defendants did. Only one of those defendants-- the one who was actually eligible to receive SNAP (food stamp) benefits-- though showed a "substantial burden" on his religious beliefs. The court went on, however, to find that the government has shown a compelling interest in limiting SNAP benefits to the purchase of food to be used by the eligible recipient's household, and that the SNAP statutes and regulations are the least restrictive means of furthering that interest.  The court also rejected defendants' 1st Amendment claims. Fox 13 reports on the decision.

Washington Supreme Court Hears Arguments In Florist's Refusal of Flowers For Gay Wedding

The state of Washington's Supreme Court yesterday heard oral arguments in Ingersoll v. Arlene's Flowers, Inc.  At issue is a decision by a state trial court holding that a florist shop and its owner violated the Washington Law Against Discrimination and the state's Consumer Protection Act when the shop's owner advised a customer that for religious reasons she could not provide flower arrangements for his same-sex wedding ceremony. (See prior posting.) The oral arguments (video of full arguments) were heard by the Court sitting at Bellevue College, where the justices the prior day visited with students and spoke to classes.

AP reports at length on the oral arguments, including a report on this exchange at the beginning of appellant's presentation:

"A Muslim graphics designer should not be compelled to create designs promoting a Jewish Friends of Israel group, a gay public relations manager shouldn't be forced to promote the Westboro Baptist Church, and a Christian floral designer shouldn't be forced to create custom wedding designs for a wedding that is not between one man and one woman," Stutzman's attorney, Kristin Waggoner, told the court.

Waggoner immediately ran into questions. Justice Susan Owens brought up the state's first and only black justice, the recently deceased Charles Z. Smith, who had to stay in separate hotels from other attorneys when he traveled the country while working for the Justice Department in the 1960s.

"How is this different?" Owens asked. "Because I'm sure some of the owners of those hotels would profess they had strongly held religious beliefs that prohibited racial integration."

For one thing, Waggoner responded, renting out a hotel room isn't a form of artistic expression or speech deserving of protection. Stutzman's floral arrangements do constitute expression protected by the Constitution, the lawyer said, and the government can't compel that expression.

Alliance Defense Fund has a case page with links to the pleadings, briefs and opinions in the case.

Court Holds Title VII Applies To Sexual Orientation Discrmination

In U.S. Equal Employment Opportunity Commission v. Scott Medical Health Center, (WD PA, Nov. 4, 2016), a Pennsylvania federal district court held that Title VII's ban on discrimination because of sex prohibits discrimination on the basis of sexual orientation.  The court said in part:

That someone can be subjected to a barrage of insults, humiliation, hostility and/or changes to the terms and conditions of their employment, based upon nothing more than the aggressor’s view of what it means to be a man or a woman, is exactly the evil Title VII was designed to eradicate. Because this Court concludes that discrimination on the basis of sexual orientation is a subset of sexual stereotyping and thus covered by Title VII’s prohibitions on discrimination “because of sex"....

An EEOC press release discusses the decision.

British Court Says Sex Segregated Religious Schools OK Under Equality Act

In Interim Executive Board of X School v Chief Inspector of Education, Children's Services And Skills, (EWHC (Admin), Nov. 8. 2016), a British trial court held that sex-segregated classes from the 5th grade on in an Islamic school do not violate the Equality Act 2010. In reaching its conclusion, the court distinguished U.S. Supreme Court case of Brown v. Board of Education. The High Court judge said in part:

The essence of her case is that "making separate but equal provisions for boys and girls (or blacks and whites, or heterosexuals and lesbians and gay men etc.) cannot be divorced from the historic and current societal treatment of the less powerful group." Put another way, but to the same effect, segregation has the tendency to promote social and cultural stereotypes about the role of women in society....

Insofar as segregation on the ground of sex is practised in mixed schools in the UK, it is a practice carried out by a minority of schools with a Jewish, Christian and Islamic ethos, with the full participation of parents.

In short, segregation in mixed schools in this country is not the practice of government; it cannot be envisaged as any reflection of the mores and attitudes of wider society; it is only capable of being seen as a reflection of the mores, attitudes, cultures and practices of the faith groups who have been permitted to do it.

Law & Religion UK has more on the case.

Suit Challenging Social Media Policing of Anti-Islamist Posts Is Dismissed

In American Freedom Defense Initiative v. Lynch, (D DC, Nov. 9, 2016), the DC. federal district court dismissed a suit against the federal government by two anti-Islamist organizations and their leaders, including well-known activist Pamela Geller.  The groups complain that Facebook, YouTube, and Twitter have repeatedly removed their postings.  They sue the U.S. Attorney General seeking a declaratory judgment that Sec. 230 of the Communications Decency Act is unconstitutional.  That section protects social media sites from liability for policing content to remove objectionable material.  Plaintiffs contend that if Sec. 230 were held unconstitutional, the sites would no longer censor their posts.  The court dismissed for lack of standing, holding that any impact of a declaratory judgment here is speculative, and at most would only indirectly affect the behavior of social media companies.