Terrorists Attack French Satirical Magazine

In a still developing story from France, at least 12 people were killed and 4 others critically wounded today in a terrorist attack by two heavily armed gunmen at the Paris offices of the satirical magazine Charlie Hebdo.  The magazine has been a target in the past because of its publishing of cartoons depicting the Prophet Muhammad or satirizing Islamic law.  The magazine has also satirized other religious groups. CNN reports on today's attack in a post that is being updated on a continuous basis.

Indiana Supreme Court Interprets Civil Rights Commission Jurisdiction Over Educational Matters Narrowly

In Fishers Adolescent Catholic Enrichment Society, Inc. v. Bridgewater, (IN Sup. Ct., Jan. 6, 2015), the Indiana Supreme Court held that the state's Civil Rights Commission exceeded its authority when it adjudicated disability discrimination and retaliation claims growing out of a dispute between members of a group ("FACES") created to provide homeschool high schoolers with Catholic educational, spiritual, and social enrichment. A family filed a discrimination complaint with the Civil Rights Commission when FACES refused to make health-related dietary accommodations for their daughter at an "All Souls' Day Masquerade Ball" dinner-dance. The complaint led to the family's being expelled from FACES.

The Indiana Civil Rights Law, Sec. 22-9-1-3(l), bars discriminatory practices only when they relate to "the acquisition or sale of real estate, education, public accommodations, employment, or the extending of credit." The Supreme Court said:

The dinner-dance at which Mrs. Bridgewater contends that FACES failed to accommodate her daughter's food allergy furthered ... Catholic spiritual and social enrichment. It was not an occasion for the teaching of academic subjects as part of the student's curriculum.... The alleged disability discrimination thus occurred at a quasi-religious social function, not an educational one. To expansively interpret "relating to . . . education," ... to apply to this dinner would convert almost every occasion of parental guidance and training into an activity "related to education." This would eviscerate the function of "related to education" as a legislative prerequisite for the Commission's enforcement powers.

Justice Rucker dissented.

Thomas More Society issued a press release announcing the decision.

2nd Circuit Upholds Eruv Against Establishment Clause Attack

In Jewish People for the Betterment of Westhampton Beach v. Village of Westhampton Beach, (2d Cir., Jan. 6, 2015), the U.S. Second Circuit Court of Appeals held that the Long Island Power Authority did not violate the Establishment Clause when it entered a licensing agreement permitting a Jewish organization to attach inconspicuous staves (known as lechis) to utility poles in order to create an eruv. Applying the Lemon test, the court said in part:

Neutral accommodation of religious practice qualifies as a secular purpose under Lemon.... No reasonable observer who notices the strips on LIPA utility poles would draw the conclusion that a state actor is thereby endorsing religion.

Newsday reports on the decision.

Injunction Issued In Contraceptive Mandate Case On Remand From Supreme Court

On remand from the U.S. Supreme Court after its Hobby Lobby decision (see prior posting), in Autocam Corp. v. Burwell, (WD MI, Jan. 5, 2014), a Michigan federal district court issued a permanent injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate against Autocam Medical, LLC. Members of a Catholic family were the CEO and controlling owners of Autocam. The injunction covered:

those provisions of federal law in existence on June 30, 2014, when the Supreme Court decided Hobby Lobby, that require plaintiff Autocam Medical, LLC, to  provide its employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which  plaintiff objects on religious grounds.

Thomas More Society issued a press release announcing the decision.

Study Provides Religious Affiliation of Members of Incoming Congress

Pew Forum yesterday published its study of The Religious Composition of the 114th Congress which is sworn in today. It is 57.2% Protestant; 30.7% Catholic; 5.2% Jewish; 3% Mormon.  Other faiths represented include Orthodox Christian, Buddhist, Muslim, Hindu and Unitarian-Universalist. Only 1 member of the incoming Congress is listed as Unaffiliated, while 20% of American adults say they are unaffiliated.  The full report has additional details on members' religious affiliations.

Religious School Exempt From Arizona Unemployment Insurance Tax

In Above and Beyond Child Care Inc. v. State of Arizona, (App. Bd., Dec. 19, 2014), the Arizona Department of Economic Security Appeals Board held that a church-affiliated pre-school and K-6 elementary school is exempt from the state unemployment insurance law.  The state had contended that the exemption for organizations operated primarily for religious purposes does not apply because the school's primary purposes are child care and teaching of secular subjects. The appeals board disagreed, holding that the school's teaching personnel are not covered by unemployment insurance.  It emphasized that the school's curriculum and class operations are infused with religious faith. An ADF press release last month announced the decision.

5 Church Members Indicted For Assault and Kidnapping In Efforts To Cure Teen of Homosexuality

The Shelby (NC) Star reported yesterday on the kidnapping and assault indictments last month of five members of a North Carolina church growing out of their attempts to break a 19-year old young man free of homosexual "demons."  Matt Fenner, who had joined the World of Faith Fellowship Church in Spindale, NC, says some 20 church members joined 3 others that had taken him to the back of the sanctuary.  Begining with "blasting"-- a high-pitched screaming prayer--, the groups's efforts at eliminating Fenner's homosexuality  led to their pushing, hitting and screaming at him for two hours in January 2013. Fenner says he had to press authorities to investigate.  The church's attorneys say that the charges are "an absolute complete fabrication." Apparently the 750-member church that operates a 35-acre complex in Spindale has been accused for years of exerting excessive control over its members. The church has also posted a denial on its website, saying "it is clear that [Fenner] has been influenced by several individuals who have vowed to destroy our church."

Challenge To Florida School Choice Expansion Dismissed On Standing Grounds

In Faasse v. Scott, (FL Cir. Ct., Dec. 30, 2014), a Florida state trial court dismissed for lack of standing a suit by Florida teachers challenging a statute passed last year expanding private-school choice by creating Personal Learning Scholarship Accounts for special needs students and expanding the existing Florida Tax Credit Scholarship Program.  Plaintiffs contended that SB 850 violates the state constitution's single subject requirement.  The court held that plaintiffs failed to show that they suffered any special injury. Links to all the pleadings in the case are available here.  RedefinED reported on the decision.

Law Aimed At Religion-Based Terrorists On Fast Track In Pakistan's Parliament

In Pakistan on Saturday, the government introduced two new bills in response to the Taliban terrorist attack last month on the Army Public School in the city of Peshwar that killed 145 people (including 132 schoolchildren). The bills will sunset after two years. As reported by The News, The Constitution (21st Amendment) Bill, 2015, will allow terrorists to be tried in military courts. The Pakistan Army Act, 1952 (Amendment) Bill, 2015 (full text) adds provisions aimed specifically at terrorist groups acting in the name of a religion:

any person who is or claims or is known to belong to any terrorist group or organization using the name of religion or a sect and raises arms or wages war against Pakistan or attacks the Armed Forces of Pakistan and law enforcement agencies, or attacks any civil or military installations in Pakistan or kidnaps any person for ransom or causes death of any person or injury, or is in possession, storage, fabrication or transport of explosives, fire-arms, instruments, articles, suicide jackets or vehicles designed to be used for terrorist acts, or receives or provides funding from any foreign or local sources for such illegal activities and acts or does any act to overawe the state or any section of the public or a sect or a religious minority or to create terror or insecurity in Pakistan or attempts to commit any of the said acts, within or outside Pakistan shall be punished under this Act;

It is expected that the bills will pass in Parliament quickly.

Recent Articles, Book and Movie of Interest

From SSRN:

• Lina Triantafyllia Papadopoulou, Religious Jurisdictions and the Pluralisation of Legal Adjudication: The Emergence of Parallel Religious Jurisdictions in Greece, (August 28, 2014).
• M. Christian Green, From Social Hostility to Social Media: Religious Pluralism, Human Rights, and Democratic Reform in Africa, (African Human Rights Law Journal 14:1 (May 2014): 93-125).
• Mumtaz Ahmad Shah, Jammu and Kashmir: Understanding Identity and Difference, (December 21, 2014).
• Archana Mishra, Breaking Silence - Christian Women's Inheritance Rights Under Indian Succession Act, 1925, (December 25, 2014).
• Raphael Cohen-Almagor, Countering Hate on the Internet, (Annual Review of Law and Ethics, Vol. 22 (2014), pp. 431-443).
• Stephen G. Gilles, Does the Right to Elective Abortion Include the Right to Ensure the Death of the Fetus?, (January 2, 2015).
• Samuel William Bettwy, The Potential of Transnational Cinema to Counter Islamic Extremism, (CTX Journal, vol. 4, No. 4, November 2014).

From SmartCILP:

• Brett A. Geier, Texas Cheerleaders and the First Amendment: Can You Cheer for God At a Football Game?, 33 Mississippi College of Law Review 65-88 (2014).
• Rachel Wagley, The Quiet Audience: U.S. Responsibility To Call For an International Investigation Into Crimes Against Muslims in Burma, 28 Emory International Law Review 43-61 (2014).
• The Multicultural State and the Religiously Neutral State. Reply to Paul Cliteur by Phil Ryan [abstract]; rejoinder by Paul Cliteur [abstract]. 12 I.Con: Int'l J. Const. L. 457-467 (2014).

Recent book:

• Marc Solomon, Winning Marriage: The Inside Story of How Same-Sex Couples Took on the Politicians and Pundits—and Won, (ForeEdge, Nov. 2014), reviewed by The Daily Beast.

Recent movie:

• One Generation Away: The Erosion of Religious Liberty, (American Family Studios, Sept. 2014), reviewed by The Forward.

FFRF Moves Into Expanded Headquarters

LaCrosse (WI) Tribune reports that the Freedom From Religion Foundation headquartered in Madison, Wisconsin last week saw its staff begin the move into the four stories added to its headquarters as part of an over $3 million expansion.  The addition quadrupled the office space of the organization which is one of the leading legal advocacy groups promoting separation of church and state.  A second phase of the project will remodel the original part of the FFRF headquarters.  The FFRF staff will be expanded from 14 to 17.

Illinois Health Care System Pension Plan Is Not Exempt From ERISA As A "Church Plan"

In Stapleton v. Advocate Health Care Network, (ND IL, Dec. 31, 2014), an Illinois federal district court held that the defined benefit pension plan of Illinois' largest health care provider is not exempt from ERISA as a "church plan." Advocate is  affiliated with the United Church of Christ and the Evangelical Lutheran Church in America.  The court held that under ERISA a plan which is maintained merely by an organization associated with a church does not qualify for the exemption unless the plan was initially established by a church itself. In reaching its conclusion, the court refused to defer to a contrary opinion in an Internal Revenue Service private letter ruling issued to Advocate. Reporting on the decision, BNA Daily Report for Executives (Jan. 2) [subscription required] points out that this is the third district court to hold that this type of plan does not qualify for an exemption, while two district courts have held they are exempt.  Numerous other cases are pending.

Recent Prisoner Free Exercise Cases

In Shehee v. Anlin, 2014 U.S. Dist. LEXIS 177898 (ED CA, Dec. 25, 2014), a California federal magistrate judge dismissed with leave to amend a civil detainee's complaint regarding problems in connection with a requested religious diet.

In Flippin v. Vaughn, 2014 U.S. Dist. LEXIS 178053 (WD KY, Dec. 30, 2014), a Kentucky federal district court permitted a pre-trial detainee to move ahead with his complaint that he was denied the right to attend church after he was placed in administrative segregation due to overcrowding.

In Curry v. Bradt, 2014 U.S. Dist. LEXIS 176210 (WD NY, Dec. 19, 2914), a New York federal district court accepted a magistrate's recommendation (2014 U.S. Dist. LEXIS 178826, Dec. 2, 2014), and denied a TRO and preliminary injunction to a Muslim inmate who complained that only one of the two meals furnished to inmates on a Ramadan diet was a hot meal.

IRS Updates Instructions For Small Charities Seeking Exempt Status

In Internal Revenue Bulletin 2015-1 (Jan. 2, 2015), the IRS has published Rev. Proc. 2015–5 (scroll to pg. 186) .  The Revenue Procedure updates the instructions for small organizatons seeking a ruling on their tax-exempt status under Sec. 501(c)(3) using Form 1023-EZ.

Florida District Court Judge Attempts To Clarify Injunction In Same-Sex Marriage Case

A Florida federal district court has ruled on a motion to clarify a preliminary injunction it previously issued in a suit challenging Florida's ban on same-sex marriage. (See prior related posting.) At issue was whether the court's ruling did more than require a marriage license be issued to the specific couple who filed suit. In Brenner v. Scott, (ND FL, Jan. 1, 2015), the court said:

Reasonable people can debate whether the ruling in this case was correct and who it binds. There should be no debate, however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case. And a clerk who chooses not to follow the ruling should take note: the governing statutes and rules of procedure allow individuals to intervene as plaintiffs in pending actions, allow certification of plaintiff and defendant classes, allow issuance of successive preliminary injunctions, and allow successful plaintiffs to recover costs and attorney’s fees.

The Clerk has acknowledged that the preliminary injunction requires her to issue a marriage license to the two unmarried plaintiffs. The Clerk has said she will do so. In the absence of any request by any other plaintiff for a license, and in the absence of a certified class, no plaintiff now in this case has standing to seek a preliminary injunction requiring the Clerk to issue other licenses. The preliminary injunction now in effect thus does not require the Clerk to issue licenses to other applicants. But as set out in the order that announced issuance of the preliminary injunction, the Constitution requires the Clerk to issue such licenses. As in any other instance involving parties not now before the court, the Clerk’s obligation to follow the law arises from sources other than the preliminary injunction.

As reported by SCOTUSblog, immediately following this decision the law firm advising court clerks changed the advice it had previously given and said:

Greenberg Traurig has advised the Florida Association of Court Clerks and Comptrollers that clerks should follow the judge's ruling for all marriage-license applications or face the consequences identified by Judge Hinkle.

However, apparently Judge Hinkle's opinion still left some ambiguity.  Liberty Counsel issued a press release yesterday stating in part:

Nearly all media outlets... are grossly mischaracterizing the effect of the ruling....The error is likely the result of the order's condescending lecture to clerks on why they should bow to the August injunction even though they are not bound by it. Judge Hinkle’s lecture, however, has no force of law, and only invites lawlessness throughout the state.

Ghana's Top Shia Imam Calls For Political Steps

GhanaWeb yesterday published the New Year message from the Shia National Imam of Ghana. The message set out a political agenda, calling for support of Palestinians in Gaza and promoting the battle against Muslim extremists. The Imam made an extensive appeal to fight corruption in Ghana, contending: "Corruption seems to have permeated our society from governments, politicians, religious leaders, government functionaries and top public servants."  While congratulating the government on 2014 Hajj arrangements, he additionally called for reform:

I reiterate and hope that government will harness more capabilities and commit Hajj under the full control of Muslims by setting up a permanent National Hajj Commission to organize Hajj in Ghana as previously promised.

A Survey of Law School Books On Law and Religion

With the new semester beginning in U.S. law schools, here is a listing casebooks and other publications designed for courses in law and religion:

Ravitch and Backer's Law and Religion: Cases, Materials, and Readings, 3d, (West, 2015).

Edward J. Larson, Creationism in the Classroom: Cases, Statutes, and Commentary, (West, 2013).

Leslie C. Griffin, Law and Religion: Cases and Materials, 3d, (Foundation Press, 2013).

Michael W. McConnell, John H. Garvey, Thomas C. Berg, Religion and the Constitution, Third Edition, (Wolters Kluwer, 2011).

Hon. John T. Noonan Jr. & Edward M. Gaffney Jr., Religious Freedom: History, Cases, and Other Materials on the Interaction of Religion and Government, 3d, (West, 2010).

Leslie C. Griffin, Law and Religion: Cases in Context, (Wolters Kluwer, 2010).

W. Cole Durham & Brett G. Scharffs, Law and Religion: National, International, and Comparative Law Perspectives, (Wolters Kluwer, 2009).

Frank S. Ravitch, Law and Religion, A Reader: Concepts, Cases and Theory, 2d ,(West, 2008).

Stephen G. Gey, Religion and the State, Second Edition, (LexisNexis, 2006).

Thomas C. Berg, The State and Religion in a Nutshell, 2d, (West, 2004).

UPDATE: Conkle's Constitutional Law - The Religion Clauses, 2d ,(Turning Point Series) (Foundation Press, 2009).

Former NY Governor Mario Cuomo Remebered For His Speech On The Complexity of Being A Catholic Politician

The New York Times reports that former New York Governor Mario Cuomo died today at age 82.  Among many other things, Cuomo is remembered for a groundbreaking speech given at Notre Dame University in 1984 titled Religious Belief and Public Morality: A Catholic Governor's Perspective (full text) in which he said:

I protect my right to be a Catholic by preserving your right to believe as a Jew, a Protestant or non-believer, or as anything else you choose.  We know that the price of seeking to force our beliefs on others is that they might some day force theirs on us....

Cuomo used the speech to make a forceful argument in defense of Catholic public officials who do not support anti-abortion legislation.  He said in part:

As Catholics, my wife and I were enjoined never to use abortion to destroy the life we created, and we never have..... But not everyone in our society agrees with me and Matilda.

And those who don't -- those who endorse legalized abortions -- aren't a ruthless, callous alliance of anti-Christians determined to overthrow our moral standards. In many cases, the proponents of legal abortion are the very people who have worked with Catholics to realize the goals of social justice set out in papal encyclicals: the American Lutheran Church, the Central Conference of American Rabbis, the Presbyterian Church in the United States, B'nai B'rith Women, the Women of the Episcopal Church. These are just a few of the religious organizations that don't share the Church's position on abortion....

I repeat, there is no Church teaching that mandates the best political course for making our belief everyone's rule, for spreading this part of our Catholicism. There is neither an encyclical nor a catechism that spells out a political strategy for achieving legislative goals....

This latitude of judgment is not something new in the Church, not a development that has arisen only with the abortion issue. Take, for example, the question of slavery. It has been argued that the failure to endorse a legal ban on abortions is equivalent to refusing to support the cause of abolition before the Civil War.....

But the truth of the matter is, few if any Catholic bishops spoke for abolition in the years before the Civil War....  They weren't hypocrites; they were realists. At the time, Catholics were a small minority, mostly immigrants, despised by much of the population, often vilified and the object of sporadic violence. In the face of a public controversy that aroused tremendous passions and threatened to break the country apart, the bishops made a pragmatic decision. They believed their opinion would not change people's minds.... [S]o they were silent. As they have been, generally, in recent years, on the question of birth control. And as the Church has been on even more controversial issues in the past, even ones that dealt with life and death.

... The decision they made to remain silent on a constitutional amendment to abolish slavery or on the repeal of the Fugitive Slave Law wasn't a mark of their moral indifference: it was a measured attempt to balance moral truths against political realities. Their decision reflected their sense of complexity, not their diffidence....

Supreme Court Will Finally Move To Electronic Filing and Public Access

Chief Justice John Roberts announced yesterday in his Year-End Report on the State of the Judiciary (full text) that the U.S. Supreme Court will finally develop its own system for electronic filing and retrieval of documents. He said in part:

The Supreme Court is currently developing its own electronic filing system, which may be operational as soon as 2016. Once the system is implemented, all filings at the Court—petitions and responses to petitions, merits briefs, and all other types of motions and applications—will be available to the legal community and the public without cost on the Court’s website. Initially, the official filing of documents will continue to be on paper for all parties in all cases, with the electronic submission an additional requirement for parties represented by attorneys. Once the system has operated effectively for some time and the Supreme Court Bar has become well acquainted with it, the Court expects that electronic filing will be the official means for all parties represented by counsel, but paper filings will still be required. Parties proceeding pro se will continue to submit documents only on paper, and Court personnel will scan and upload those documents to the system for public access.

Much of his report is an explanation of why the Court has been so slow in adopting this technology.  Legal Times has more on the announcement.

Happy New Year 2015!

Dear Religion Clause Readers:

Happy New Year 2015!  Last year was important.  The religious liberty and church-state developments of 2014 have raised fundamental questions about arrangements that have evolved over decades in the United States:

• Does the Religious Freedom Restoration Act still draw the proper balance for religious accommodation?  
• Should the civil and religious aspect of marriage be more clearly separated?
• As small and marginal faith groups, as well as mainstream ones, compete for a place on statehouse lawns and in lineups for delivering legislative invocations, is a rush toward creating limited public forums for religious expression still the preferable policy? 
• Can the government assure universal access to health care services that some find religiously objectionable without creating a single-payer system?
• How much of a burden on third parties is justified in order to provide religious accommodation?

Religion Clause has attempted to provide the raw materials for the inevitable debate over these and other important policy questions. I have also attempted to expand coverage of law and religion issues arising outside the United States.

As we enter 2015, I want to again thank all of you who read Religion Clause-- both long-time followers and those who have discovered the blog more recently. And thanks to all of you who send me leads or corrections. Your input is important in maintaining completeness and accuracy. I read all of your e-mails and comments and appreciate receiving them, even though time constraints often prevent me from replying individually. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want to be mentioned, I will be happy to honor that request if you let me know when sending me information.

Religion Clause's established format of neutrality, broad coverage and links to extensive primary source material has produced a loyal readership.  Often Religion Clause carries a story well before mainstream media feature it. This year, for the sixth time in 8 years, Religion Clause was named by the ABA Journal as one of the 100 top blogs for a legal audience. This year Religion Clause was also added to the ABA's "Blawg 100 Hall of Fame."

StatCounter shows over 256,000 vists to the blog during 2014, but those numbers are skewed for many reasons. For me, raw numbers are not as important as the quality of the audience and the usefulness of the blog to readers. On this score, I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, and others working professionally dealing with church-state relations and religious liberty concerns.  I encourage you to recommend Religion Clause to colleagues and friends who might find it of interest.  Increasingly readers are finding Religion Clause through links on Twitter and Facebook.  I urge you to share Religion Clause postings on your social media platforms.

Finally, I remind you that the Religion Clause sidebar contains links to a wealth of resources.

Feel free to contact me by e-mail (religionclause@gmail.com) or through comments to this or other posts throughout the year.

Best wishes for 2015!  It is already shaping up as a year of important developments.

Howard M. Friedman