House Health Care Bill Tracks FICA Exemption For Religious Objectors

The House version of the health care bill passed Saturday, HR 3962, imposes a 2.5% penalty tax on anyone who fails to obtain acceptable health care coverage. (Internal Revenue Code Sec. 59B(a) [pg. 297 of PDF]). However the bill does provide a "conscience exemption" for members of religious sects whose tenets reject insurance benefits. The exemption in Section 501of the bill [IRC Sec. 59B(c)(5) at pg. 299 of PDF] tracks the exemption from payment of social security and self-employment taxes for members of groups such as the Old Order Amish, described in Section 1402(g) of the Internal Revenue Code. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• See Hoon Peow, History of Islamic Law in Malaysia - A Critical Reconsideration ,(November 1, 2009).
• Andrew F. March, The Uses of Fitra (Human Nature) in the Legal and Political Theory of ‘Allal Al-Fasi: Natural Law or 'Taking People as They Are'?, (November 4, 2009).
• Robert A. Kahn, Flemming Rose, the Danish Cartoon Controversy, and the New European Freedom of Speech, (U of St. Thomas Legal Studies Research Paper No. 09-24 (Oct. 2009)).
• Marci A. Hamilton, The Constitutional Limitations on Congress's Power Over Local Land Use: Why the Religious Land Use and Institutionalized Persons Act is Unconstitutional, (July 31, 2009).
• Geoffrey P. Miller, Origin of Obligation: Genesis 2:4b-3:24, (NYU School of Law, Public Law Research Paper No. 09-60 (Oct. 2009)).

From SmartCILP and elsewhere:

• Gregory C. Downs, Religious Liberty That Almost Wasn't: On the Origin of the Establishment Clause of the First Amendment, 30 University of Arkansas Little Rock Law Review 19-29 (2007).
• Shannon McSheffrey, Sanctuary and the Legal Topography of Pre-Reformation London, 27 Law & History Review 483-514 (2009).
• Najwa Shihab & Yanuar Nugroho, The Ties That Bind: Law, Islamisation and Indonesia's Prosperous Justice Party (PKS), [abstract], 10 Australian Journal of Asian Law 233-267 (2008).
• Karin Carmit Yefet, What's the Constitution Got To Do With It? Regulating Marriage in Pakistan, 16 Duke Journal of Gender Law & Policy 347-377 (2009).
• Steven H. Sholk, A Guide To Election Year Activities of Section 501(c)(3) Organizations-- 2009 Edition, in PLI Course Handbook for Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings (2009).

Some Israeli Marriage Registrars Refuse To Accept Conversions By Chief Rabbinate

YNet News today reports that particularly in the Israeli cities of Ashkelon and Rishon LeTzion, marriage registrars employed by Israel's Chief Rabbinate are refusing to recognize the legitimacy of conversions to Judaism performed by the Chief Rabbinate for many immigrants during their military service in the IDF. Apparently at a meeting of chief rabbis of various Israeli cities three months ago, ultra-Orthodox members urged cities to refuse to accept the validity of Orthodox conversions where, subsequently, the individual involved does not observe all aspects of Jewish religious law. Marriage registrars who disagree with the more liberal conversion policy applied by the Chief Rabbinate following the report of the Ne'eman Committee in 1998 are advising couples to register in another city. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Rider v. Yates, 2009 U.S. Dist. LEXIS 101009 (ED CA, Oct. 27, 2009), a California federal magistrate judge recommended that an inmate be permitted to move ahead with a free exercise, due process, equal protection and RLUIPA challenge to the destruction of his copy of The Book of Shadows, a sacred Satanist text. However the court found insufficient allegations regarding a discriminatory policy against pagans.

In Collins v. Levenhagen, 2009 U.S. Dist. LEXIS 101390 (ND IN, Oct. 29, 2009), an Indiana federal district judge rejected an inmate's claim that his free exercise rights and his rights under RLUIPA were infringed when Native American religious services were scheduled on Wednesdays at the same time he voluntarily worked in a prison job.

Bowen v. Florida Parole Commission, 2009 U.S. Dist. LEXIS 102880 (MD FL, Oct. 20, 2009), was a habeas corpus action brought by an inmate who was re-imprisoned for violating the conditions of his early release. A Florida federal district judge held that the habeas action was not the proper mode for considering plaintiff's claim that his free exercise rights had been violated by the requirement that he use no alcohol or intoxicants. Plaintiff, a Catholic, argued that this prevented him from taking wine during communion. Plaintiff's rearrest was not based on a violation of this condition, but instead on violations of other conditions of his release.

In Pappas v. Oakland County, 2009 U.S. Dist. LEXIS 102946 (ED MI, Nov. 5, 2009), a Michigan federal district court accepted the recommendation of a federal magistrate judge (2009 U.S. Dist. LEXIS 102951, Oct. 15, 2009), to dismiss a claim against the county by an inmate who alleged that while in a special jail unit for at-risk inmates, he was denied the opportunity to attend church services.

Abuse Victims Agree To Delay In Trials Against Delaware Catholic Parishes

On Friday, according to AP, attorneys in 78 clergy abuse lawsuits that have been filed in Delaware agreed to delay going to trial. The suits name the Catholic Diocese of Wilmington and various parishes. The Diocese recently filed for bankruptcy (see prior posting) and a stay was placed on litigation against it. However the bankruptcy filing did not cover parishes that were named as co-defendants. Friday's agreement extends the delay in litigation to them as well, though not to five cases in which the diocese is not a co-defendant. In exchange, the diocese agreed to furnish plaintiffs with the personnel files of a dozen suspected priests, and to disclose information on liability insurance coverage. The agreement will allow the diocese to focus on the bankruptcy proceedings. Plaintiffs will be allowed to take depositions from seven of the accused priests in January, and the trial in a suit by one gravely ill victim is proceeding.

House Passes Health Care Bill With Anti-Abortion Funding Amendment

In an historic vote tonight, the U.S. House of Representatives passed HR 3962, the Affordable Health Care for America Act by a vote of 220-215. (New York Times.) Paving the way for the favorable vote was the passage of the Stupak-Ellsworth-Pitts-Kaptur-Dahlkemper-Lipinski-Smith Amendment (full text) by a vote of 240-194. (Christian Science Monitor background.) That amendment assures that federal funds will not be used to pay for abortions (except in cases of rape, incest or threat to the life of the mother). Abortion coverage will be available through non-subsidized private health plans. Supplemental policies may be purchased with an individual's own funds or with state or local funds other than state or local matching Medicaid funds. Any private company offering an unsubsidized plan through the insurance Exchange that covers abortion must also offer an identical plan that excludes abortion coverage. In letters to members of Congress today, the U.S. Conference of Catholic Bishops strongly supported the amendment. [Updated.]

New Book Suggests British Catholic Royals Would Have Place to Pray

According to Friday's London Telegraph, a forthcoming book has created a stir in Britain by arguing that Queen's Chapel, built between 1623 and 1625 as part of St. James Palace, is still legally available for use as a Catholic church by any member of the Royal Family that should desire to do so, despite the 1701 Act of Settlement that bars a British monarch from being a member of the Catholic Church or marrying a Catholic. Author David Baldwin argues in his book, Royal Prayer, that the Anglo-Portuguese Treaty of 1661 is still in force. Negotiated in anticipation of the marriage of Charles II to Catherine of Braganza , the treaty provides: "Her Majesty and whole Family shall enjoy the free exercise of the Roman Catholic religion, and to that purpose shall have a Chapel, or some other place, set apart for the exercise thereof."

Christian Group Lacks Standing To Vacate Florida School's Consent Decree

A Florida federal district judge has largely rejected an attempt by the Christian Educators Association International to challenge the high profile and contentious consent decree entered into in March by the Santa Rosa County Florida school board to settle litigation brought by the ACLU challenging religious practices in the county's schools. (See prior posting.) In Minor Doe I v. School Board for Santa Rosa County, Florida, (ND FL, Oct 30, 2009), the court held that Christian Educators lacks standing to seek to totally vacate the consent decree because neither the organization nor its members suffered a legal injury that would be remedied by permitting the schools to again violate the Establishment Clause. The court postponed for a hearing next month the question of whether the organization could show it has standing to seek a modification of the consent decree on the ground that it impacts the free speech or free exercise rights of teachers or employees. Today's Pensacola News-Journal reports on the court's decision.

Pennsylvania County Plans To Tax Closed Church Builidings

Today's Wilkes-Barre (PA) Times-Leader reports that Luzerne (PA) County officials are likely to follow the lead of several other Pennsylvania counties and remove the property tax exemption from closed churches and religious schools. Pennsylvania's tax code allows exemptions only for "actual places of regularly stated religious worship." (72 P.S. § 5453.202 [LEXIS link]). The new policy will primarily impact the Catholic Diocese of Scranton which is closing 45 churches plus some schools in the county. The move will likely lead to disagreements over the value of the closed buildings. After Northampton and Carbon counties took similar steps, the Diocese of Allentown filed suit claiming that the buildings remain exempt under a provision exempting owned by institutions of public charity.

Teacher Sues Arguing Fingerprint Requirement Violates Her Free Exercise Rights

A kindergarten teacher in Dallardsville, Texas, has filed suit challenging a provision added to the Texas Education Code in 2007 (S.B. 9) requiring school teachers to submit their fingerprint so that a criminal background check can be run on them. The complaint (full text) in McLaurin v. Texas Education Agency, (ED TX, filed 10/30/2009), alleges that teacher Pam McLaurin, who has been teaching for over 20 years, is a devout Christian and believes that submitting a fingerprint is barred by verses in the Book of Revelations that caution against receiving the mark of the beast. Plaintiff claims that the requirement is unconstitutional under the free exercise and due process clauses, and violates the Texas Religious Freedom Restoration Act. Courthouse News reports on the case. [Thanks to Eugene Volokh via Religionlaw for the lead.]

UPDATE: The Nov. 17 Lufkin Daily News reported that the court issued a temporary injunction restoring Pam McLaurin's teaching credentials pending the court's decision on the merits of the case. A hearing on the merits is scheduled for Jan. 22, 2010.

Required Immunization of School Children Does Not Infringe Free Exercise

In Workman v. Mingo County Schools, (SD WV, Nov. 3, 2009), a West Virginia federal district court upheld West Virginia's compulsory vaccination program for school children. In the case, a mother of two school-age children asserted free exercise, equal protection and due process challenges. The court concluded that the free exercise clause does not require states to provide a religious exemption form the immunization requirements.

After Ft. Hood Massacre, Shooter's Religious Background Explored

Today's Washington Post reports that Army psychiatrist Major Nidal M. Hasan, who opened fire yesterday at Fort Hood, Texas, killing 13 and wounding 30 was a devout Muslim. (Details of shootings.) The Washington Post also reports on the Muslim Community Center in Silver Spring, Maryland, where Hasan prayed regularly when he was stationed in Washington, DC. The mosque's chairman, Arshad Qureshi, fielded many phone calls, emphasizing that the Center stands for peace. It has been active in offering community services, such as an extensive medical clinic for the uninsured operated by volunteers. The Council on American-Islamic Relations issued a statement yesterday condemning the Ft. Hood shootings.

First Conviction From Raid on FLDS Texas Ranch Is Handed Down

Yesterday, a jury in a state court in Texas convicted FLDS Church leader Raymond Jessop of sexually assaulting a 16-year old who he had taken as one of his nine wives. The New York Times and Salt Lake Tribune report on the conviction, the first resulting from the raid by Texas authorities of the sect's Yearning for Zion Ranch. During the trial, the defense argued that the raid on the FLDS compound which produced documents crucial to Jessop's conviction were illegally seized. The raid was triggered by a phone call that later was found to be a hoax. Jessop will be sentenced after a hearing before the jury on Monday. He faces up to 20 years in prison. (See prior related posting.)

9th Circuit Will Rehear Catholic League's Suit Againt San Francisco En Banc

The U.S. 9th Circuit Court of Appeals yesterday granted an en banc rehearing in Catholic League for Religious and Civil and Rights v. City and County of San Francisco (full text of order). In June, a 3-judge panel handed down an opinion in the case rejecting an Establishment Clause challenge to a strongly worded resolution passed by San Francisco's Board of Supervisors. The resolution criticized a directive from Catholic Cardinal William Levada instructing Catholic social service agencies to not place children in need of adoption with same-sex couples. (See prior posting.) The San Francisco Chronicle reported on the 9th Circuit's action.

Jersey City Parking Lot Ends Discounts For Jehovah's Witnesses

In Jersey City, New Jersey, the privately owned Square Parking parking garage has ended its practice of giving discounts to Jehovah's Witnesses, who worship in a nearby theater. A press release issued Tuesday by FFRF and a report yesterday in the Jersey Journal indicate that the discount was stopped after the city followed up on a letter sent to the parking lot by FFRF. FFRF contended that the discount violates federal, state and local non-discrimination laws. Apparently other parking lots in the area are still offering discounts to Jehovah's Witnesses.

Senate Committee Holds Hearing On ENDA; Religious Exemption Discussed

Yesterday, the U.S. Senate Committee on Health, Education, Labor, and Pensions held a hearing on S. 1584, the proposed Employment Non-Discrimination Act which would prohibit employment discrimination on the basis of actual or perceived sexual orientation or gender identity. Sec. 6 of the Act would exempt the same religious institutions that are exempt from the religious discrimination provisions of Title VII of the 1964 Civil Rights Act. After opening remarks by committee chairman Tom Harkin, seven witnesses testified. The Committee has posted the full text of their statements.

Craig L. Parshall, Senior Vice-President and General Counsel of the National Religious Broadcasters argued that the bill threatens the constitutional rights of religious employers. (Full text of testimony.) He claimed that the exemption in Sec. 6 is inadequate. Illinois Attorney General Lisa Madigan (full text of testimony) reported that under the Illinois Human Rights Act that bars discrimination based on sexual orientation, only a handful of sexual orientation claims have been filed against religious institutions. Bay Windows reports on the hearing.

Chechnya Will Pay For Hajj Trips For 400 Residents

In Russia's Chechnya region, Chechen president Ramzan Kadyrov has ordered the government to pay for 400 residents to go to Mecca on this year's Hajj. Reuters reported yesterday that trips will be financed for those who cannot afford to go, for the single and the young, out of a fund Kadyrov has created to honor father who was assassinated in a bomb blast in 2004. Kadyrov has previously awarded prizes for newborns named after the Prophet Muhammad, has banned alcohol and required women to wear headscarves in government offices in this predominately Muslim region of Russia. He is now planning to build "the world's most beautiful mosque." Recently suicide bombs and armed attacks on Chechen police have shattered a few years of calm.

Sanctions Imposed On Attorney In Client's Suit Against Jews For Jesus

Rapp v. Jews for Jesus, Inc. is a long running case in the state courts of Florida filed by Edith Rapp who claimed that Jews for Jesus published a false report from her missionary stepson that she had joined the organization. (See prior posting.) The courts determined that Rapp may have a cause of action for defamation by implication, and in a short decision issued last February, the state court of appeals remanded the case to the trial court, ordering Edith Rapp to "succinctly replead her claims, without excessive editorialization." Now, in an Order issued on Oct. 29 (full text), the trial court ordered Edith Rapp's attorney to pay for attorney's fees and costs incurred by defendant in arguing that the latest pleadings still contain excessive editorialization. The court concluded that the pleadings which continued to include redundant, immaterial and scandalous content that the court had previously ordered stricken involved bad faith litigation conduct on the part of plaintiff's attorney, Barry M. Silver, and not misconduct by plaintiff herself. Liberty Counsel, which is defending Jews for Jesus, yesterday issued a release on the decision.

CAIR Gets TRO Forcing Return of Purloined Documents

In Council on American-Islamic Relations v. Gaubatz, (D DC, Nov. 3, 2009), the U.S. District Court for the District of Columbia granted a temporary restraining order to CAIR to prevent the use by defendants of various documents and e-mails that were surreptitously taken from CAIR's offices. Defendant Paul Gabautz publishes a blog devoted to "exposing Islamic terrorist operations in America." A number of postings on the blog accuse CAIR, a Muslim advocacy group, of being a front for the Muslim Brotherhood and of supporting Al Qaeda. Paul Gabautz implemented a plan to get his son, Chris, hired as an intern at CAIR under an assumed name. Chris copied or removed various documents and recorded various meetings and conversations at CAIR. Many of the materials were either posted on Paul's blog, or included in a book co-authored by Paul that was published last month titled Muslim Mafia: Inside the Secret Underworld That’s Conspiring to Islamize America. Among the blog postings were lists of CAIR employees and donors (with personal contact information). The TRO, along with its broader bans, specifically ordered removal of these and return of the lists to CAIR. Here is an account of the decision and background on it from World Net Daily that published Gaubautz's book and is defending the Gaubautz's in the lawsuit.

Missouri Taxes Yoga; Some Claim Religious Exemption Should Apply

Missouri's sales tax statute (MRS 144.020) imposes a 4% tax on admission or fees paid to "any place of amusement, entertainment or recreation, games and athletic events." According to reports today from AP and Columbia's Missourian, state Department of Revenue officials have notified yoga and Pilates centers that beginning Nov. 1 they have to collect the tax. Yoga instructors, however, say that they should be exempt. Some argue that it would be unconstitutional to tax yoga because it is a spiritual practice with roots in ancient Indian meditation. MRS 144.030(2)(19) exempts sales by religious institutions from sales tax. A Missouri Revenue Department spokesman said it will consider religious exemptions on a case-by-case basis.