District Court Enjoins Sectarian Invocations At County Council Meetings

In Hake v. Carroll County Maryland, (D MD, March 26, 2014), a Maryland federal district court granted a preliminary injunction barring Carroll County, Maryland commissioners opening their commission sessions with sectarian prayer.  Currently sessions are opened with a prayer led by one of the commissioners, on a rotating basis. The Board's voluntary guidelines for commissioners calls for them to "refrain from using Jesus, Jesus Christ, Savior, Prince of Peace, Lamb of God and the like."  However, during 2011-2012, at least 40% of the invocations contained sectarian Christian references, while no prayers made non-Christian sectarian references.  In finding that plaintiffs are likely to succeed on the merits of their Establishment Clause claim, the court said in part:

Although the podium guidelines discourage sectarian references, the Board has made no effort to curb the frequent sectarian references made by its own Commissioners.... At this time, the record indicates that the prayers invoked by Commissioners before Board meetings advance one religion to the exclusion of others.

The court ruled that Commissioners can continue to deliver non-sectarian invocations, but are enjoined from invoking the name of a specific deity associated with any specific faith or belief in their opining prayers. The American Humanist Association in a press release calls the decision "a major victory for separation of church and state."  The Baltimore Sun reports on the decision.  The U.S. Supreme Court this term has heard oral arguments in a case raising similar issues, and will decide the case within the next few months. (See prior posting.)

UPDATE: A March 27 release from the American Humanist Association says that a Carroll County commissioner defied the preliminary injunction and delivered a sectarian prayer at a county council meeting one day after the preliminary injunction was ordered. The AHA sent a contempt warning letter (full text) to counsel stating in part: "As a courtesy, we are going to refrain from seeking contempt charges against the commissioner in this one instance, in the hopes that today’s behavior was simply an emotional outburst made without the benefit of serious consideration of the rights of plaintiffs and others. She should understand, however, that any continued defiance of the court order will leave us with no choice but to seek a contempt order."

Religious Non-Profits Win Injunction Against Contraceptive Coverage Mandate Opt-Out Rules

In a 91-page opinion in Roman Catholic Archdiocese of Atlanta v. Sebelius, (ND GA, March 26, 2014), a Georgia federal district court permanently enjoined the government from requiring Catholic Education of North Georgia and Atlanta Catholic Charities to execute and deliver a self-certification form to the third-party administrator of their health care plans.  Final Rules under the Affordable Care Act require the self-certification for objecting religious non-profits to opt out of the requirement to provide coverage for contraceptive services.

The court concluded that the Final Rules impose a substantial burden on plaintiffs' free exercise rights under RFRA:

... [T]he plain terms of the Final Rules show that the purpose and effect of the self-certification form is to enable the provision of contraceptive coverage. The self-certification form is an integral part of the Government’s contraceptive coverage scheme..... [I]t is a Government imposed device that pressures the Plaintiffs into facilitating the contraceptive coverage to which they have sincerely held religious objections.....

The Court’s conclusion does not change even if the Government had argued, as it did in other cases, that it has no ERISA authority to require a church plan to contract with a TPA to provide contraceptive coverage.... It is the fact of the requirement that is important, not whether the Government will or will not choose to enforce it....

The court also concluded that the government had not shown a compelling interest for imposing the substantial burden:

The Government claims that exempting CENGI and Catholic Charities from the contraceptive mandate would hinder its ability to effectively and uniformly administer the requirements of the ACA. That claim is discredited by the Government’s advocacy in other church plan cases in which it has argued that plaintiffs lack standing because self-certification will not necessarily result in the delivery of contraceptive products and services..... 

The Government’s interests in promoting public health and providing women with equal access to health care also cannot be compelling because the contraceptive mandate does not apply to the insurance plans of millions of women in this country.... Grandfathered health plans, small businesses and religious employers are all exempt from the contraceptive mandate....

Finally the court concluded that the provision barring non-profits from seeking to influence the third party administrator's decision to provide contraceptive services is a presumptively invalid, content-based restriction on speech. Daily Report covers the decision.

NYC Transit Authority Must Pay $187,000+ In Plaintiffs' Attorneys Fees In Religious Discrimination Suit

In Small v. New York City Transit Authority, 2014 U.S. Dist. LEXIS 39582 (ED NY, March 25, 2014), a New York federal district court ordered the New York City Transit Authority to pay $187,570 in attorneys fees and $1450 in costs to two Muslim women who has sued the Transit Authority for religious and gender discrimination.  In the lawsuit:

Plaintiffs alleged that defendant removed them from passenger service as bus operators because they wore Muslim head coverings called khimars and refused to wear a hat to cover their khimars.

The suits, after being consolidated with 3 others raising similar claims on behalf of Muslim and Sikh drivers, were settled, granting damages, a new policy on wearing khimars and return of plaintiffs to their jobs.

Ecclesiastical Abstention Doctrine Leads To Dismissal of Suit Over Church's Board

In Ivanov v. Notzkov, 2014 Ill. App. Unpub. LEXIS 577 (IL App., March 25, 2014), an Illinois Court of Appeals affirmed the trial court's reliance on the ecclesiastical abstention doctrine in dismissing a lawsuit  between two factions of St. John of Rila Bulgarian Eastern Orthodox Church.  The court refused to order a membership meeting to elect a new board, relying on the trial court's findings that St. John's is governed by the Bulgarian Eastern Orthodox Church which gave the parish priest and archbishop authority to determine who are members in good standing that may vote in an election for the church's board. The trial court had concluded that passing on plaintiffs' claim that the clergy did not have the power to appoint members to the board of trustees would require it to decide matters of religious doctrine and polity.

Former Scientologist Sues Church For Return of Funds

Courthouse News Service reported yesterday on a lawsuit filed recently in a California state trial court against the Church of Scientology and a number of its affiliates. Plaintiff Vance Woodward, an attorney, seeks return of $200,000 he paid for "auditing" courses he never received, as well as punitive damages.  He contends that the Church took thousands of dollars from him and others through claims that Scientology would bestow superhuman powers on them. In total he turned over $600,000 to the church, $200,000 of which went for allegedly shoddy courses that were useless or harmful.  He claims the Church obtained his funds through psychological manipulation and abuse.

Community College Student Preacher Challenges Campus Speaker Rules

The Hampton Roads (VA) Daily Press reported yesterday on a lawsuit filed earlier this month by a Christian student against the board of the Virginia Community College System, the Hampton, Virginia-based Thomas Nelson Community College and various college officials.  The complaint (full text) in Parks v. Members of the State Board  of the Virginia Community College System, (ED VA, filed 3/13/2014), challenges the constitutionality of college rules that allow students to speak in open, outdoor areas of campus only if they are members of student organizations, and then only if they register their activity 4 days in advance.  Plaintiff, Christian Parks, was stopped after he began preaching in an open courtyard area on campus. The suit claims that the campus speaker rules violate the free speech, free exercise and due process clauses of the Constitution.

Tennessee Legislature Passes Student Religious Viewpoints Antidiscrimination Act

On March 24, the Tennessee General Assembly gave final passage to HB 1547 as amended, the Religious Viewpoints Antidiscrimination Act. The bill, which now goes to the governor for signature, requires schools to treat student voluntary expression of a religious viewpoint on an otherwise permissible subject the same as secular viewpoints are treated.  Schools must adopt a policy to prevent discrimination against religious viewpoints where students are chosen to speak at a school event. Students must be permitted to express their written beliefs about religion in homework and classwork, and may not be penalized or rewarded because of the religious content. Students must be allowed to sponsor religious student clubs and activities to the same extent as students are allowed to sponsor secular clubs and activities. The bill passed the House by a vote of 90-2, and passed the Senate by a vote of 32-0. The Advocate reports that the ACLU is urging Gov. Haslam to veto the bill.

California Enacts Special Exemption To Allow Abbot To Be Buried On Monastery Grounds

In California, Gov. Jerry Brown yesterday signed SB 124 which grants a special exemption to allow Abbot Theodor Micka, a co-founder of Holy Cross Monastery, to be buried on the monastery’s grounds. (Press release from Sen. Ellen Corbett.) Holy Cross is the only Orthodox Christian monastery in the San Francisco Bay Area. As reported by the San Francisco Chronicle, 75-year old Micka, now seriously ill, has lived at the monastery for nearly 35 years, and one of his last wishes was to be buried there.  The special exemption was needed because state law only allows burial permits to be issued for burial in a cemetery. [Thanks to James Sonne for the lead.]

Transcript and Summaries of Hobby Lobby Arguments In Supreme Court Today

The full transcript of the oral arguments earlier today in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius is now available from the Supreme Court's website.  Extensive reports on the oral arguments are available from Lyle Denniston (SCOTUS Blog) and the Washington Post,

UPDATE: Here is the audio of the oral arguments.

Fired Buddhist Employee Sues Claiming Failure To Accommodate Religious Beliefs

Courthouse News Service yesterday reported on a Title VII  religious discrimination lawsuit filed in Texas federal district court by the former director of marketing communications for a wireless network services company. Plaintiff Jef Mindrup, a Buddhist, claims he was fired because he refused to comply with a request by the company's co-founder that he add Biblical verses to the company's daily newsletter. His lawsuit alleges that the company "fail[ed] to accommodate plaintiff on the basis of his religion by requiring him to proselytize the Christian religion, a religion other than his own."

Court OK's Firing of 3 By Adventist University For Violating Church Doctrine

Last week the Riverside, California Press-Enterprise reported on a March 5 decision by a Riverside County Superior Court judge dismissing a lawsuit against Seventh Day Adventist-affiliated La Sierra University by the school's former vice president of development; former Arts and Science dean, and a former biology professor.  The three were pressured by the University's board president into resigning after they made derogatory remarks about church officials and violated church teachings on the consumption of alcohol.  School officials found out about remarks the three made when a conversation between them that had been recorded fell into officials' hands. (Transcript of conversation.) The trial court said in part: "the church is entitled to make its own decisions about how to respond when employees of a church-run school are deemed to have violated SDA (Seventh-day Adventist) doctrine."

A comment on the decision published by ReligiousLiberty​.TV contends:

While the official line was that the three plaintiffs had been caught drinking alcohol on an audio recording the real motivation had more to do with the heretofore untouched issue of creationism.  Two of the plaintiffs were outspoken critics of the Adventist view of literal creationism and the lawsuit revealed the concerns that church leadership has had regarding the way that Adventist beliefs had been downplayed at La Sierra.

UPDATE: Here is the full transcript of the March 5 summary judgment hearing in the case, Kaatz v. Graham.

City Council Members Have Legislative Immunity In Suit Over Zoning Vote

In American Islamic Center v. City of Des Plaines, (ND IL, March 24, 2014), an Illinois federal district court held that city council members are entitled to absolute legislative immunity from a suit against them for their vote against a zoning map amendment that would have permitted an Islamic center to build in an area currently zoned for manufacturing.  The Islamic Center's free exercise and equal protection claims can proceed only against the city itself. The court held that it need not decide at this juncture whether the Illinois Tort Immunity Act applies to claims under the Illinois Religious Freedom Restoration Act.  It permitted plaintiff to proceed with its claim that the zoning decision was arbitrary and capricious in violation of the state constitution.

Appeals Court Approves Transgender Name Change Over Trial Judge's Religious Objections

In In the Matter of the Application of James Dean Ingram To Change His/Her Name, (OK App., March 21, 2014), the Oklahoma Court of Civil Appeals reversed a trial court judge's refusal to allow transgender petitioner, who was in the process of a sex transition from male to female, to change her name from from James Dean Ingram to Angela Renee Ingram.  The appeals court held that the trial judge abused his discretion when he concluded that the name change was sought for an illegal or fraudulent purpose.  According to AP, the trial court judge, Oklahoma County District Judge Bill Graves, citing Biblical passages, had said:   "[A] sex change cannot make a man a woman or a woman a man.... The DNA code shows God meant for them to stay male and female."  The Oklahoma ACLU issued a press release announcing the Court of Civil Appeals' decision. In 2012, the appeals court reversed a similar denial by the same judge. (See prior posting.)

Britain's Law Society Taking Heat For Guidance To Lawyers On Drafting Wills For Muslim Clients

The Telegraph reports today that members of Britain's Parliament are calling for an investigation by the House of Commons into a March 13 Practice Note issued by The Law Society to assist British solicitors whose clients ask them to draw up wills that comply with Sharia law. (Full text of Sharia succession rules Practice Note.) Some are accusing The Law Society of giving its stamp of approval to wills that deny women an equal share of an estate and exclude "illegitimate" children or unbelievers.  The Law Society says it was merely responding to requests from lawyers for guidance in helping Muslim clients carry out their wishes.

Recent Articles of Interest

From SSRN:

• Daniel Schick, Keeping Up with the Principle of Neutrality: Why Courts Should Not Extend Elmbrook's Mistaken Establishment Clause Analysis, (Mississippi Law Journal, Vol. 84, Forthcoming).
• Philip Hamburger, Equality and Exclusion: Religious Liberty and Political Process, (March 10, 2014).
• Ronan McCrea, European Law and the Prohibition of the Veil, (March 4, 2011).
• Andra le Roux-Kemp, A Question of Life and Death, (Comparative and International Law Journal of Southern Africa 2013 46(1), 74-89).
• W. Cole Durham, Robert Theron Smith & William C. Duncan, A Comparative Analysis of Laws Pertaining to Same-Sex Unions, (March 14, 2014).
• James E. Wheeler, God, Guns and Others: Why Restrictions on Carrying Firearms in Church Conflict with a Moral Duty to Defend Others, (March 11, 2014).
• Benjamin L. Berger, Belonging to Law: Religious Difference, Secularism, and the Conditions of Civic Inclusion, (Osgoode Legal Studies Research Paper No. 16 (2013)).
• Benjamin I. Berger, The Virtues of Law in the Politics of Religious Freedom, (Journal of Law and Religion, Vol. 29, No. 3, 2014).
• Malick W. Ghachem, Religious Liberty and the Financial War on Terror, (First Amendment Law Review, Vol. 12, No. 1, 2013).

From SmartCILP:

• Max Guirguis, A Coat of Many Colors: The Religious Neutrality Doctrine From Everson to Hein, [Lexis link],  43 Stetson Law Review 67-118 (2013).

Background Sources For Tomorrow's Supreme Court Arguments in Hobby Lobby/ Conestoga

Tomorrow the U.S. Supreme Court hears oral arguments in the Hobby Lobby Stores and Conestoga Wood Specialties, Inc. cases-- two high profile religious freedom challenges by for-profit businesses to the Affordable Care Act contraceptive coverage mandate.  For those who want an introduction, a refresher, or further resources on the numerous and difficult legal and political issues involved in the cases, here are some sources:

• All briefs (parties and amici) in Hobby Lobby.
• All briefs (parties and amici) in Conestoga Wood Specialties.
• Lyle Denniston, Argument preview: Religion, rights, and the workplace (Scotus blog).
• Scotus blog's Contraceptive Mandate Symposium.
• Becket Fund's Resource Page on Hobby Lobby.
• Marty Lederman's Compendium of posts on Hobby Lobby and related cases from Balkinization blog.

6th Circuit, Critical of U.S. Marshals, Still Upholds Qualified Immunity In Seizure For Planned Parenthood Judgment

In Bray v. Planned Parenthood Columbia-Willamette, Inc., (6th Cir., March 21, 2014), the U.S. 6th Circuit Court of Appeals in an opinion highly critical of the U.S. Marshals Service and others nevertheless upheld the dismissal on qualified immunity grounds of a suit against two U.S. Marshals over a raid they conducted.  Planned Parenthood had obtained an $850,000 judgment against Michael Bray, a minister and anti-abortion activist who authored the book A Time To Kill,  and  previously spent 4 years in prison for his connection with bombings of abortion clinics.. (Background.) This lawsuit grew out of the execution of a writ to seize property to satisfy Planned Parenthood's judgment.  The writ specifically authorized seizure of Bray's computers, cameras, books and writings. Representatives of Planned Parenthood went along with the marshals  The 6th Circuit said:

If the facts alleged in the complaint are true, this case involves an incident that is more like home raids by Red Guards during China’s Cultural Revolution than  like what we should expect in the United States of America. A surprise raid was made on a judgment debtor’s home to enforce an order of execution on property of the debtor. The order was ostensibly for the purpose of obtaining property of value to be seized, but was obviously focused instead on all means for the debtor to express ideas....

Nonetheless, the officers are protected from suit by the doctrine of qualified immunity, because these constitutional rights were not clearly established at the time of the violations.... [T]he legal and factual scenario presented in this action is not identical to any the Sixth Circuit or the Supreme Court has previously addressed....

Couple Awarded $5.3M For Lengthy Denial of Utilities By FLDS Church

Last Thursday, a jury in an Arizona federal district court awarded damages totaling nearly $5.3 million to Ronald and Jinjer Cooke who sued after towns controlled by the Fundamentalist Church of Jesus Christ of Latter Day Saints in 2008 denied them access to water, sewers and electricity for the home they were building.  The Salt Lake Tribune reports the Cookes argued that the mostly polygamous towns of Colorado City, Ariz., and Hildale, Utah discriminated against them because they are not members of the FLDS Church. They eventually got electicity and sewage, but are still being denied water. The cities say that the Cookes moved in as a test case for the state of Utah's efforts to reform the trust that holds FLDS land in the cities. (See prior related posting.)

NYT Profiles Obama's Early Catholic Connections As Meeting With Pope Approaches

In anticipation of President Obama's March 27 visit to the Vatican, today's New York Times carries a long front-page article titled: The Catholic Roots of Obama’s Activism. Here is an excerpt:

[I]n the spring of 1987, Mr. Obama — himself not Catholic — was already well known in Chicago’s black Catholic circles. He had arrived two years earlier to fill an organizing position paid for by a church grant, and had spent his first months here surrounded by Catholic pastors and congregations. In this often overlooked period of the president’s life, he had a desk in a South Side parish and became steeped in the social justice wing of the church, which played a powerful role in his political formation.

This Thursday, Mr. Obama will meet with Pope Francis at the Vatican after a three-decade divergence with the church. By the late 1980s, the Catholic hierarchy had taken a conservative turn that de-emphasized social engagement and elevated the culture wars that would eventually cast Mr. Obama as an abortion-supporting enemy....  A White House accustomed to archbishop antagonists hopes the president will find a strategic ally and kindred spirit in a pope who preaches a gospel of social justice and inclusion..... 

But the Vatican — aware that Mr. Obama has far more to gain from the encounter than the pope does, and wary of being used for American political consumption — warns that this will hardly be like the 1982 meeting at which President Ronald Reagan and Pope John Paul II agreed to fight Communism in Eastern Europe.

Recent Prisoner Free Exercise Cases

In Tennyson v. Carpenter, (10th Cir., March 18, 2014), the 10th Circuit held that a federal district court wrongly dismissed as frivolous a Christian inmate's RLUIPA, 1st Amendment and retaliation claims growing out his suspension from the prison's "Praise Team" choir after choir music binders he kept in his cell were confiscated, and he filed a grievance over the incident.

In Oliver v. Harner, 2014 U.S. Dist. LEXIS 34137 (SD IL, March 17, 2014), an Illinois federal district court permitted an African-American inmate to proceed with his free exercise and equal protection complaints that the Caucasian chaplain and Caucasian warden denied him a kosher diet that conforms to African Hebrew Israelite beliefs. However the court denied a temporary restraining order and dismissed without prejudice plaintiff's conspiracy claims.

In Halloum v. Ryan, 2014 U.S. Dist. LEXIS 35077 (D AZ, March 18, 2014), an Arizona federal district court permitted a Muslim inmate to proceed with his complaint that his free exercise rights were infringed when he was denied a religious shaving waiver. A number of other claims were dismissed, including complaints that the chaplain rejected donated copies of the Qur'an and Muslim inmates were denied communal prayer on two mornings during Ramadan.

In Browning v. Seifert, 2014 U.S. Dist. LEXIS 35232 (ND WV, March 18, 2014), a West Virginia federal district court adopted a magistrate's recommendations (2014 U.S. Dist. LEXIS 35237, Jan. 28, 2014) and allowed an Orthodox Jewish inmate to proceed against most of the defendants on his complaint that he was denied him a kosher diet, the ability to wear religious apparel, and the right to worship weekly and on special holidays.

In Irby v. Cain, 2014 U.S. Dist. LEXIS 35419 (MD LA, March 17, 2014), a Louisiana federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 35123, Feb. 19. 2014) and dismissed an inmate's claim that he was retaliated against for refusing to attend a religious call-out at prison. The court concluded that the action taken against the inmate was merely de minimis adverse action.

In Roberts v. Schofield, 2014 U.S. Dist. LEXIS 35222 (MD TN, March 18, 2014), a Tennessee federal magistrate judge refused to grant preliminary injunction to stop the implementation of a vegan-type Kosher diet in Tennessee prisons.

In Bush v. Donovan, 2014 U.S. Dist. LEXIS 35325 (SD CA, March 17, 2014), a California federal district court dismissed a Muslim inmate's complaint that, among other things, he was denied a Qur'an and hindered in the practice of his Muslim faith.

In Long v. Stanislaus County Superior Court, 2014 U.S. Dist. LEXIS 35407 (ED CA, March 17, 2014), a California federal magistrate judge, relying on 11th Amendment immunity, dismissed (with leave to amend) an inmate's claim against a state court for forcing him to violate his religious objections to participating in psychology. The state court had ordered him to be evaluated by psychologists, given medication and placed in a mental hospital.