Religion Clause

Thursday, February 13, 2014

Pharmacist Sues After His Firing For Refusing To Sell "Morning After" Contraceptives

Thomas More Society announced yesterday that it has filed a federal lawsuit on behalf a a pharmacist who was fired by from his position at a Jamestown, Tennessee Walgreen's after he told management he would not participate in the sale of Plan B oral contraceptives. The complaint (full text) in Hall v. Walgreen Company, (MD TN, filed 2/11/2014), alleges that the company previously permitted pharmacist Phillip Hall to refer customers seeking to purchase Plan B to another pharmacist in the store as a way of accommodating Hall's religious objections to selling the emergency contraceptive which he believes is an abortifacient. However the store changed its policy once it began to stock a new over-the-counter version of Plan B. A factor in Hall's firing apparently was also his action in personally purchasing and disposing of the store's first shipment of 6 boxes of the over-the-counter version as a way to prevent its being available. The complaint alleges that Hall's firing violated Title VII of the 1964 Civil Rights Act, the free exercise clause of the Tennessee constitution and Tennessee's Right to Refuse statute that protects anyone from being required to participate in the performance of an abortion.

Suits Challenge Missouri's and Louisiana's Refusals To Recognize Out-of-State Same-Sex Marriages

Yesterday, the ACLU announced that has filed a state court lawsuit on behalf of 8 Missouri same-sex couples challenging Missouri's statutory and state constitutional provisions that deny recognition to plaintiffs' marriages that were legally entered into in other jurisdictions. The complaint (full text) in Barrier v. Vasterling, (MO Cir. Ct. Jackson County, filed 2/12/2014) contends:

Missouri’s exclusion of married same-sex couples from the protections and responsibilities of marriage violates the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This discriminatory treatment is subject to heightened scrutiny because it burdens the fundamental right to marry and because it discriminates based on sex and sexual orientation. But it cannot stand under any level of scrutiny because Missouri’s refusal to recognize the legal marriages of same-sex couples does not rationally further any legitimate government interest. It serves only to disparage and injure same-sex couples and their families.

Reporting on the lawsuit, the Columbia Missourian notes:

Missouri Gov. Jay Nixon drew criticism from gay marriage opponents in November when he directed the state Department of Revenue to accept joint tax returns from same-sex couple who are legally married in other states.... The directive prompted a lawsuit filed by same-sex marriage opponents, and led a Republican lawmaker last week to file articles of impeachment against the Democratic governor.

Meanwhile, in Louisiana an organization that advocates for LGBT equality filed a federal court lawsuit challenging Louisiana's statutory and state constitutional provisions that bar recognition of same-sex marriages validly performed elsewhere. The complaint (full text) in Forum for Equality Louisiana, Inc. v. Barfield, (ED LA, filed 2/12/2014), in claiming that the Louisiana Anti-Recognition Laws violate plaintiffs' equal protection and due process rights, focuses particularly on the state's refusal to accept joint tax returns from married same-sex couples and its refusal to issue birth certificates naming same-sex couples as parents of a child. The New Orleans Times Picayune reports on the lawsuit.

Court Says Kentucky Must Recognize Valid Same-Sex Marriages From Elsewhere

In Bourke v. Beshear, (WD KY, Feb. 12, 2014), a Kentucky federal district court struck down Kentucky's state constitutional and statutory provisions that deny recognition to valid same-sex marriages performed elsewhere. The court held that "denial of recognition for valid same-sex marriages violates the United States Constitution’s guarantee of equal protection under the law, even under the most deferential standard of review." Explaining its decision, the court said in part:

Many Kentuckians believe in “traditional marriage.” Many believe what their ministers and scriptures tell them: that a marriage is a sacrament instituted between God and a man and a woman for society’s benefit. They may be confused—even angry—when a decision such as this one seems to call into question that view. These concerns are understandable and deserve an answer.

Our religious beliefs and societal traditions are vital to the fabric of society. Though each faith, minister, and individual can define marriage for themselves, at issue here are laws that act outside that protected sphere. Once the government defines marriage and attaches benefits to that definition, it must do so constitutionally. It cannot impose a traditional or faith-based limitation upon a public right without a sufficient justification for it. Assigning a religious or traditional rationale for a law, does not make it constitutional when that law discriminates against a class of people without other reasons.

The court added that while it was not presented with the question of the validity of Kentucky's ban on issuing marriage licenses for same-sex marriages in the state, "there is no doubt that Windsor and this Court’s analysis suggest a possible result to that question." WFPL News reports on the decision. [Thanks to Tom Rutledge for the lead.]

7th Circuit Hears Oral Arguments In Notre Dame's Contraceptive Mandate Accommodation Challenge

The U.S. 7th Circuit Court of Appeals heard oral arguments (audio of full arguments) yesterday in University of Notre Dame v. Sebelius. In the case, an Indiana federal district court rejected Notre Dame's claim that its rights under RFRA and the 1st Amendment are infringed by applying the Affordable Care Act contraceptive coverage mandate accommodation to its self-insured employee plan and its health insurance policies offered to students. (See prior posting.) The exchanges in yesterday's arguments between Notre Dame's counsel Matthew Kairis and Judge Richard Posner were particularly contentious. (Note-- there is no sound for the first 2:30 minutes of the audio.) Chicago Tribune reports on the oral arguments. [Thanks to Stephen Blakeman for the lead.]

Wednesday, February 12, 2014

4th Circuit: North Carolina May Not Issue Pro-Life Plates And Refuse Pro-Choice Ones

In ACLU v. Tata, (4th Cir., Feb. 11, 2014), the U.S. 4th Circuit Court of Appeals held that North Carolina has engaged in unconstitutional viewpoint discrimination when it specifically authorized a "Choose Life" specialty license plate and refused to issue a pro-choice specialty plate. The court rejected the state's argument that this was permissible because specialty plates are government speech:

[W]e agree with the district court “that sufficient private speech interests are implicated by the specialty license plates to preclude a finding of purely government speech.”....

North Carolina ... laments that if it has created a forum, it “must allow all viewpoints to be heard via specialty plates.” .... This complaint seems at odds with North Carolina’s contention that its vast array of specialty plates “celebrat[es]” the “diversity of its citizen’s interests . . . .”... Apparently, North Carolina wishes to celebrate only some interests of some of its citizens— namely those with which it agrees. This, it may not do.

North Carolina then sounds the death knell for specialty plates, predicting a “flood” of “Kill The Sea Turtles” and “Children Last” plates that will force it to end its specialty plate program.... Melodrama aside, our ruling today “does not render [North] Carolina powerless to regulate its specialty license plate forum.” ... But it must do so in a viewpoint-neutral fashion—which it already does, to some extent, by requiring three hundred applicants before issuing a new specialty plate. Surely such a requirement can filter out “frivolous license plate proposals” and prevent the roads from being inundated with “license plates advocating reckless pet breeding.”

WRAL News reports on the decision.

Alabama Proposal Would Call For Reading Congressional Prayers In Classrooms

Proponents of school prayer have come up with a new approach in Alabama. Proposed House Bill 318 calls for reading prayers from the Congressional Record to teach students about Congress' formal procedures:

At the commencement of the first class of each day in all grades in all public schools, the teacher ... shall, for a period of time not exceeding 15 minutes, instruct the class in the formal procedures followed by the United States Congress. The study shall include, but not be limited to, a reading verbatim of one of the opening prayers given by the House or Senate Chaplain or a guest member of the clergy at the beginning of a meeting of the House of Representatives or the Senate.

The Anniston Star this week quotes the Rep. Steve Hurst, the bill's sponsor:

Hurst said the bill would help students learn more about history and civics. "They could read the prayer from the day war was declared in World War II," he said. "They could read the prayer the day after Sept. 11."

Random House Affiliate Agrees To Withdraw Scholar's Book On Hinduism To Settle Lawsuit In India

The New York Times and the Financial Times report that in India, the publisher Penguin India (an affiliate of US publisher Penguin Random House) has agreed to settle a lawsuit brought against it by a Hindu activist group by withdrawing all unsold copies of The Hindus: An Alternative History. The book, authored by University of Chicago Professor Wendy Doniger and published in 2009, was criticized by a reviewer as over-eroticizing the religion. In 2010, Dina Nath Batra, the head of Shiksha Bacho Andolan (Save Education Movement), filed a lengthy notice (full text) with the author detailing passages he found to be "shallow," "distorted" and "riddled with heresies and factual inaccuracies." The notice threatened legal action under Section 153, 153A, 295A, 298, 505(2) of Indian Penal Code. These provisions, among other things, bar insulting religious beliefs and promoting ill-will between religious groups. A lawsuit was filed in 2011, and apparently complaints were also filed with prosecutors.

Under the settlement (full text), Penguin will "recall and withdraw all copies of the book" and no longer "sell, publish or distribute" it. The recalled copies will be "pulped" by Penguin. In exchange, plaintiffs will withdraw all "civil and criminal cases/ complaints." Currently the book remains listed on Penguin India's website. Apparently the book will remain available in India on Kindle. In a statement reacting to developments, Prof. Doniger criticized "Indian law, which makes it a criminal rather than civil offence to publish a book that offends any Hindu, a law that jeopardises the physical safety of any publisher, no matter how ludicrous the accusation."

Suit Asks Ohio To Recognize Same-Sex Marriages On Birth Certificates

A suit was filed by three couples on Monday in an Ohio federal district court to require state officials to recognize same-sex marriages validly performed elsewhere when issuing birth certificates. The complaint (full text) in Henry v. Wymyslo, (SD OH, filed 2/10/2014) alleges that state and local health department officials will permit only one parent from married same-sex couples to be listed on the birth certificate of their children. It continues:

Plaintiffs challenge this unequal treatment as unconstitutional. These same Defendants were recently ordered to recognize valid out-of state marriages between same-sex couples on death certificates..... The reasoning from that case compels recognition of same-sex marriages on birth certificates.

Cincinnati Enquirer reports on the filing of the lawsuit.

DC Circuit: RFRA Does Not Protect Guantanamo Detainees

In Aamer v. Obama, (DC Cir., Feb. 11, 2014), the D.C. Circuit denied a preliminary injunction to Guantanamo detainees who brought a habeas corpus action to challenge the government's force feeding protocol used to protect the health of detainees engaged in protest hunger strikes. Among the detainees' claims was that their force feeding violates the Religious Freedom Restoration Act because it prevents them from from engaging in communal prayers during Ramadan. Judge Tatel's majority opinion (which also dealt at length with other issues) held that RFRA’s protections do not extend to Guantanamo detainees. He reaffirmed prior precedent in the D.C. Circuit that nonresident aliens do not qualify as protected “person[s]” within the meaning of RFRA. Judge Williams, dissenting, did not reach the RFRA issue because he urged dismissal of the entire action on jurisdictional grounds. [Thanks to Arthur Spitzer for the lead.]

Tuesday, February 11, 2014

Nevada Tells 9th Circuit It Will No Longer Defend Its Same-Sex Marriage Ban

According to AP, Nevada's attorney general yesterday filed a statement with the U.S. 9th Circuit Court of Appeals informing the court that the state will no longer defend its ban on same-sex marriage. The move comes in the pending appeal in Sevcik v. Sandoval, in which a Nevada federal district court upheld the ban against an Equal Protection Clause challenge. (See prior posting.) The attorney general told the court:

After thoughtful review and analysis, the state has determined that its arguments grounded upon equal protection and due process are no longer sustainable.

Nevada's Governor Brian Sandoval agrees with the attorney general.

As described by SCOTUSblog, the state changed its position after considering the 9th Circuit's decision last month in SmithKline Beecham Corp. v. Abbott Laboratories, (9th Cir., Jan. 21, 2014) holding that heightened scrutiny must be applied to equal protection claims based on sexual orientation. The case held that peremptory jury challenges may not be made on the basis of sexual orientation.

Developments In Utah Same-Sex Marriage Litigation

Numerous amicus briefs have been filed in the 10th Circuit in Kitchen v. Herbert, the appeal of the Utah federal district court's decision striking down the ban on same-sex marriage in Utah. Of particular interest is the amicus brief (full text) filed yesterday by major religious organizations urging reversal of the district court. The brief, filed by the United States Conference of Catholic Bishops; National Association of Evangelicals; The Church of Jesus Christ of Latter-Day Saints; The Ethics & Religious Liberty Commission of the Southern Baptist Convention; and Lutheran Church—Missouri Synod argues:

Undermining the husband-wife marital institution by redefining it to include same-sex couples will, in the long term, harm vital child-welfare interests that only the husband-wife definition can secure. The result will be more mothers and fathers concluding that the highest end of marriage is not the welfare of their children but the advancement of their own life choices. We know, from personal experience over numerous decades of ministering to families and children, that more focus on satisfying adult needs will not benefit vulnerable children.

The Salt Lake Tribune has a summary of the over 20 briefs filed in support of Utah's position, and reports at more length on the brief filed by religious organizations.

Meanwhile, last month the ACLU filed a lawsuit (press release) seeking to require Utah to recognize as valid the more than 1000 same-sex marriages performed in the state after the district court struck down the ban and before the U.S. Supreme Court stayed the decision. The complaint (full text) in Evans v. State of Utah, (UT 3d Dist. Ct., filed 1/21/2014), argues that by not fully recognizing the marriages, the state has deprived couples of liberty and property interests protected by the due process clause of the Utah constitution and by 42 USC Sec. 1983:

By placing recognition of their marriages “on hold,” the State of Utah has placed the legal status of all same-sex married couples, including Plaintiffs and their families and children, in legal limbo and created uncertainty as to their rights and status in virtually all areas of their lives.

The ACLU provides links to other documents and items relating to the case.

Home Schooler Sues To Play On Christian School's Atlhletic Teams

The Central Pennsylvania Patriot-News yesterday reported on a lawsuit by the mother of a home-schooled high school freshman who wants to play on a Christian school's soccer and basketball teams. Under the rules of the Pennsylvania Intercollegiate Athletic Association, home schoolers are allowed to play on public school teams in district in which they live. Here the parents want the boy to be able to participate on the teams of Covenant Christian Academy, also located in the boy's home district. Plaintiff says that PIAA is misinterpreting its own rules, and is also denying her the constitutional right to direct the education of her son. The suit was originally filed in state court, but defendants are seeking to remove it to federal court.

St. Louis Diocese Provides Court With List of Accused Priests and Victims

According to the St. Louis Post-Dispatch yesterday, the Catholic Archdiocese of St. Louis has complied with a trial court's order to turn over to the court and plaintiff's attorney in a pending lawsuit the names of priests who have been accused of sexually abusing minors over a 20-year period, as well as contact information of the victims. The order comes in a suit filed in 2011 by a woman who says she was abused by a now-defrocked priest. Last week the Missouri Supreme Court rejected the Archdiocese's challenge to the trial court's order. The list remains under seal. The trial court will appoint an attorney to make first contact with the victims, rather than having that contact come from plaintiff's lawyer.

Monday, February 10, 2014

Neighbor Sues Over Home's Use As Synaogue

KDFW News reported last week on a lawsuit in Dallas, Texas against a rabbi who is using a home in a residential neighborhood as a meeting place for his 25-person Orthodox Jewish congregation. David Schneider, who lives in the home across the street and was recently elected head of the homeowners association, says that the rabbi is violating homeowners association rules. Schneider is seeking $50,000 in damages contending that the synagogue has lowered his property values. Religious services are held in the synagogue twice a day, and Rabbi Yaakov Rich has filed a certificate with the City of Dallas notifying it of his use of the building as a synagogue, known as Congregation Toras Chaim. Liberty Institute is defending the synagogue, contending that the Religious Land Use and Institutionalized Persons Act protects the right to use the home for religious meetings and worship. (Press release.)

New Mexico Supreme Court Upholds Cultural Property Designation For Mount Taylor

In Rayellen Resources, Inc. v. New Mexico Cultural Properties Review Committee, (NM Sup. Ct., Feb. 6, 2014), the New Mexico Supreme Court upheld the decision of the state's Cultural Properties Review Committee to recognize 400,000 acres of public land on Mount Taylor as a registered cultural property under the New Mexico Cultural Properties Act. The mountain is a sacred site for the Navajos and several other Native American tribes. The court held that it was permissible for the Committee to use federal National Register guidelines and then went on to reject arguments that the Committee has misapplied these guidelines:

the Committee made numerous findings relating to Mount Taylor’s eligibility for listing, including that the nomination satisfied three of the four possible federal criteria because Mount Taylor was associated with significant contributions to our history and with persons significant in our past, and it offers a past and potential future yield of information about our history. Although these findings undoubtedly include a religious component, because religion is part of culture and history, the findings are nonetheless based primarily on historical evidence.... [S]ubstantial evidence supports the Committee’s findings on Mount Taylor’s historic eligibility....

The court, applying the Lemon test, also rejected the argument that the listing of Mount Taylor violates the Establishment Clause.

Sunday, February 09, 2014

Recent Prisoner Free Exercise Cases

In Wall v. Wade, (4th Cir., Feb. 3, 2014), the 4th Circuit vacated a Virginia federal district court's dismissal of damage claims and held that it is unconstitutional for a prison to condition inmates' participation in Ramadan observances on their providing some physical indicia of Islamic faith, such as a Quran, Kufi, prayer rug, or written religious material obtained from the prison Chaplain’s office.

In Holtz v. Karr, 2014 U.S. Dist. LEXIS 12519 (WD WA, Jan. 23, 2014), a Washington federal magistrate judge recommended that a Muslim inmate be permitted to proceed with his claims against the county alleging that jail policies interfere with his ability to practice Islam and are religiously discriminatory. Plaintiff's complaint covers religious living units, diet, and religious dress, items and prayer.

In Stevens v. Pennsylvania Department of Corrections, 2014 U.S. Dist. LEXIS 12586 (MD PA, Jan. 31, 2014), a Pennsylvania federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 13098, Jan. 14, 2014) and dismissed claims by a Native American inmate for $1 billion in damages for crushing his spirits; a "review of all religious freedoms towards Native American[s]"; and a written apology published in a newspaper after he did not hear his name called out for the Hoop worship service.

In Mitchell v. Fox, 2014 U.S. Dist. LEXIS 13845 (ED WA, Feb. 4, 2014), a Washington federal district court dismissed a Muslim inmate's complaint that his copy of the Qur'an was damaged and later taken and that two prayer books were taken during a search. He could have obtained another copy of the Qur'an from the chaplain.

In Gray v. Lewis, 2014 U.S. Dist. LEXIS 13899 (ND CA, Feb. 4, 2014), a California federal district court permitted an inmate who was a follower of the Yahweh religion to move ahead with his complaint that he was denied kosher meals.

In Fowler v. CDCR, 2014 U.S. Dist. LEXIS 13922 (ED CA, Feb. 3, 2014) and Nible v. CDCR, 2014 U.S. Dist. LEXIS 13924 (ED CA, Feb. 4, 2014), a California federal magistrate judge dismissed with leave to amend complaints by inmates that they were deprived of outdoor worship space chapel access, religious items and funds to practice the Asatru/Odinic religion, while mainstream religions were supported.

In Palermo v. New Hampshire State Prison, 2014 U.S. Dist. LEXIS 14096 (D NH, Feb. 4, 2014), a New Hampshire federal district court allowed an inmate to move ahead with his complaint that prison officials refused to recognize his religion; provide him with religious items or a religious diet; or allow him to receive religious posters or attend group worship.

In Ali v. Stephens, 2014 U.S. Dist. LEXIS 14460 (ED TX, Feb. 4, 2014), a Texas federal magistrate judge granted a Muslim inmate a TRO and preliminary injunction allowing him to wear a one-quarter inch beard, but denied a TRO and preliminary injunction on his request to wear a full beard and to wear his kufi cap throughout the prison at all times.

In Reiske v. Bruno, 2014 U.S. Dist. LEXIS 14696 (D CT, Feb. 6, 2014), a Connecticut federal district court refused to grant an inmate who is a second degree Wicca priest a TRO or preliminary injunction to require prison authorities to recognize his Wicca religion and allow him to purchase various religious items such as candles, oils, bowls and rope.

In Fox v. Stephens, 2014 U.S. Dist. LEXIS 15272 (SD TX, Feb. 6, 2014), a Texas federal district court dismissed an inmate's free exercise claims because they were not appropriately raised by a habeas corpus action and because the suit is subject to the 3-strike bar for frivolous in forma pauperis litigation.

Nigeria Cracking Down on Gays

Today's New York Times carries a long front-page article titled Wielding Whip and a Hard New Law, Nigeria Tries to ‘Sanitize’ Itself of Gays. Here is an excerpt:

Rights advocates say they have recorded arrests in multiple Nigerian states, but the country’s north has experienced the toughest crackdown. Mr. Jonathan’s national ban has redoubled the zeal against gay people here and elsewhere, according to officials and residents in Bauchi, where Shariah law prevails and green-uniformed Hisbah, or Islamic police officers, search for what is considered immoral under Islam.

“It’s reawakened interest in communities to ‘sanitize,’ more or less, to talk about ‘moral sanitization,’ ” Dorothy Aken’Ova, executive director of Nigeria’s International Center for Reproductive Health and Sexual Rights, said of the law. “Where it was quiet before, it’s gotten people thinking, ‘Who is behaving in a manner that may be gay?’ It’s driven people into the closet.”...

“God has not allowed this thing; we are not animals,” said Umar Inuwa Obi, 32, a student who said he was in the mob that hurled stones and bottles at the court and the prison van transporting the gay suspects two weeks ago.

“In Shariah court you are supposed to kill the man,” Mr. Obi said, adding that he favored this judgment. “But the government has refused. That’s why they started throwing stones and bottles.”

(See prior related posting.)

Justice Department Will Give Nation-Wide Recognition To Lawful Same-Sex Marriages

In a speech (full text) to the Human Rights Campaign dinner last night, U.S. Attorney General Eric Holder announced that the Justice Department will issue a new policy memorandum on Monday to formally instruct all Justice Department employees to give lawful same-sex marriages full and equal recognition in carrying out Justice Department activities in all states.

This means that same-sex spouses will be able to refuse to testify against their spouses in federal court proceedings, even in states that do not recognize same-sex marriages. Same-sex marriages will be treated the same as heterosexual marriages in bankruptcy proceedings, allowing same-sex couples to file jointly for bankruptcy and making alimony owed to a former same-sex spouse generally non-dischargeable. Federal inmates in same-sex marriages will have the same spousal visitation, furlough, correspondence and compassionate release rights as opposite-sex spouses. Same -sex spouses will be recognized in various benefit programs administered by the Department of Justice-- the Radiation Exposure Compensation Program; the September 11th Victim Compensation Fund; and the Public Safety Officers’ Benefits Program.

HRC issued a press release reacting to Holder's remarks, saying: "Today, our nation moves closer toward its ideals of equality and fairness for all."

UPDATE: Here is the Memorandum issued by the Attorney General.

Saturday, February 08, 2014

Magistrate Recommends Dismissal of Suit Over Disturbing Church Bells

In Devaney v. Kilmartin, (D RI, Feb. 6, 2014), a Rhode Island federal magistrate judge recommended dismissing a Narragansett, Rhode Island resident's complaint about constantly ringing church bells. The court described plaintiff's complaint:

the Amended Complaint focuses on St. Thomas More Church’s electronically-amplified bells, located across the street from Mr. Devaney’s home, which he contends have gonged and pealed 700 times per week at upwards of 100 decibels for at least thirteen years. The Amended Complaint adds another nearby church, St. Peter’s Episcopal Church, which Mr. Devaney avers has rung its electronically-amplified bells hourly during daylight “beginning after Plaintiff moved to his home” eighteen years ago. Mr. Devaney alleges that the constant ringing has caused emotional distress and denied him peaceful enjoyment of his property....

Recommending dismissal without prejudice, the magistrate judge concluded:

While Mr. Devaney’s exasperation is clear as a bell in his Amended Complaint, the connection between his pique and a plausible federal cause of action is not. It is conceivable that he may have an important claim arising under the United States Constitution; however, his pleading does not articulate one.

WPRI reports on the decision.