Religion Clause

Monday, August 24, 2015

Haredi Rabbis Urge Reporting of Child Abuse To Secular Authorities

Countering what has sometimes been a reluctance in the haredi (ultra-Orthodox) Jewish community to report suspected child abuse to civil authorities, over 100 prominent haredi rabbis and educators from across the United States have signed a public pronouncement calling for prompt notification to law enforcement. The statement (full text in report from Arutz Sheva) says in part;

We, the undersigned, affirm that any individual with firsthand knowledge or reasonable basis to suspect child abuse has a religious obligation to promptly notify the secular law enforcement of that information. These individuals have the experience, expertise and training to thoroughly and responsibly investigate the matter. Furthermore, those deemed “mandated reporters” under secular law must obey their State’s reporting requirements.

Many more rabbis are expected to sign the statement in coming weeks. (See prior related posting.)

School District Drops Band's Planned Half-Time Show Fearing It Violates Consent Decree

Having been held in contempt last month for violating a 2013 consent decree in which it was ordered to comply with a newly adopted policy on Religion in Public Schools (see prior posting), the Rankin County, Mississippi School Board last week told the Brandon High School band that it could not perform its planned half-time show at the season's opening football game. According to yesterday's Christian News, the band had planned to perform "How Great Thou Art" during half-time. While the song was selected last February with administrative support, the school district more recently said it would risk heavy fines if it were performed and would be required to terminate the employment of anyone connected with the performance. At last Friday's game, while the band did not perform, dozens of parents and students began singing the song from the stands.

Suit Threatened Against Catholic Hospital For Refusing Sterilization Procedure

The San Francisco Chronicle reported yesterday that the ACLU is threatening to sue a Catholic hospital in Redding, California because it refuses to perform sterilization procedures. Rachel Miller who is scheduled to have her second child in late September wants a tubal ligation performed at the same time. Her Catholic hospital in Redding, California-- owned by Dignity Health-- refuses to permit the procedure under its Ethical and Religious Directives. Miller would have to travel 160 miles to find a hospital that will take her insurance and perform the procedure. California law permits Catholic hospitals to refuse to perform abortions, but not other pregnancy-related procedures. The ACLU contends that the hospital's refusal amounts to sex discrimination and violates California's ban on the corporate practice of medicine by allowing a corporate entity's religious beliefs to override a doctor's medical decision.

UPDATE: CBS San Francisco reported on Aug. 25 that Mercy Medical Center has now approved the tubal ligation procedure for Rachel Miller.

Sunday, August 23, 2015

Recent Prisoner Free Exercise Cases

In Mitchell v. Daniels, 2015 U.S. Dist. LEXIS 108599 (MD AL, Aug. 18, 2015), an Alabama federal district court adopted a magistrate's recommendation and dismissed an inmate's complaint about inadequate security to prevent desecration of the Native American ceremonial grounds.

In Green v. Fox, 2015 U.S. Dist. LEXIS 109131 (CD CA, Aug. 17, 2015), a California federal district court dismissed without prejudice an inmate's habeas corpus petition seeking release so he could obtain medical treatment from a Christian Science practitioner that he was denied in prison.

In Avery v. Paramo, 2015 U.S. Dist. LEXIS 109127 (SD CA, Aug. 18, 2015), a California federal district court dismissed a Pagan-Wiccan inmate's retaliation claim, but permitted him to proceed with his complaint regarding refusal to accommodate Pagan/ Wiccan/ Asatru practices by providing a fence perimeter, fire pit, water line, and herb cultivation, and by providing him a monthly supply of honey, nuts, dried fruit, trail mix and non-yeast crackers.

In Allah v. Christburg, 2015 U.S. Dist. LEXIS 108590 (MD AL, Aug. 18, 2015), an Alabama federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 109611, July 27, 2015), and dismissed a complaint by an inmate who complained that he was not permitted to observe Ramadan, participate in Muslim prayer services or receive a Qur'an, prayer rug or Islamic literature. The inmate had failed to specify his religious affiliation when he was booked into the facility.

In Hosey-Bey v. Williams, 2015 U.S. Dist. LEXIS 109363 (MD AL, Aug. 19, 2015), an Alabama federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 110146, July 30, 2015) and dismissed an inmate's complaint that defendant ordered the Sunday school service of the Moorish Science Temple of America closed down after only 10 to 13 minutes because of a shortage of officers for security for the chapel.

In Hoeck v. Miklich, 2015 U.S. Dist. LEXIS 110921 (D CO, Aug. 20, 2015), a Colorado federal district court denied injunctive relief to an inmate who complained that he was not permitted to observe the holy days and diet of his Biblical Christian faith.

In Shabazz v. Cruzen, 2015 U.S. Dist. LEXIS 111210 (ND CA, Aug. 21, 2015) and Fadan v. Cruzen, 2015 U.S. Dist. LEXIS 111213 (ND CA, Aug. 21, 2015), a California federal district court permitted inmates to move ahead with their complaint that correctional officers would not allow Muslim inmates to pray in groups larger than four, despite a contrary ruling by the Religious Review Committee.

Church May Continue With Its RLUIPA and State RFRA Claims

In Church of Our Lord and Savior Jesus Christ v. City of Markham, Illinois, (ND IL, Aug. 19, 2015), plaintiff claimed that after it had operated in the same location for ten years without issue, it received a summons telling it to close on safety grounds because it had not received a conditional use permit. An Illinois federal district court allowed plaintiff to proceed with its "substantial burden" claims under RLUIPA and Illinois' RFRA, but dismissed its discrimination claim. It also allowed plaintiff to move ahead with its claim under the state constitution that the city's refusal to amend its zoning ordinance was arbitrary and capricious.

Obergefell Will Be Applied Retroactively To Social Security Claims

42 USC Sec. 416(h)(1)(A)(i) provides that whether a person is the spouse of another for Social Security purposes depends on the law of their state of domicile. Until now this has led the Social Security Administration to deny benefits to same-sex spouses who moved to or lived in a state which did not recognize their marriage. However, in an Aug. 20 press release, Lambda Legal reported:

Today, in a status conference with Lambda Legal in federal court in Chicago, the Department of Justice announced that the Social Security Administration (SSA) will apply the U.S. Supreme Court's recent landmark marriage ruling retroactively and process pending spousal benefits claims for same-sex couples who lived in states that did not previously recognize their marriages. According to the Department of Justice, the new policy will apply to previously filed claims still pending in the administrative process or litigation.

Muslim Leaders Issue Declaration On Global Climate Change

As reported by the Washington Post, last week Muslim leaders and scholars from 20 countries issued an Islamic Declaration on Global Climate Change. Issued in anticipation of the Conference of the Parties to the United Nations Framework Convention on Climate Change and the Meeting of the Parties to the Kyoto Protocol taking place in Paris this December, 2015, it urges well-off nations and oil-producing states to lead the way in phasing out greenhouse gas emissions. It calls on governments and business to commit themselves to 100 % renewable energy and/or a zero emissions strategy as early as possible.

10th Circuit Grants Stay In Contraceptive Mandate Case Pending Supreme Court Action On Cert.

As previously reported, in July a petition for certiorari was filed with the Supreme Court in Little Sisters of the Poor Home for the Aged v. Burwelll. In the case, the 10th Circuit upheld the Obama Administration's Affordable Care Act accommodation for religious non-profits that object to furnishing contraceptive coverage. On Friday, the 10th Circuit issued an order (full text) staying issuance of its mandate until the Supreme Court's either denies review or decides the case. Becket Fund issued a press release on the 10th Circuit's action.

Friday, August 21, 2015

6th Circuit Again Upholds ACA Accommodation For Religious Non-Profits

The U.S 6th Circuit Court of Appeals today, deciding a case that had been remanded to it (see prior posting) by the Supreme Court after that Court's Hobby Lobby decision, reaffirmed its earlier decision upholding against a RFRA challenge the Obama administration's Affordable Care Act accommodation for religious non-profits that object to furnishing their employees insurance coverage for contraceptives. In Michigan Catholic Conference v. Burwell, (6th Cir., Aug. 21, 2015), the 6th Circuit said in part:

Despite our attempts to describe how the accommodation actually works, it is perhaps inevitable that some Plaintiffs will still believe that they are morally complicit in sin, by being a part of a system that provides access to contraceptives.... However, it is not our role to determine a party’s moral complicity; we do not question here Plaintiffs’ “desire not to participate in the provision of contraception.” ... Our role is a more limited one: to determine whether, as a legal matter, the regulation represents a substantial burden to Plaintiffs’ rights under RFRA. That requires us to determine how the law works and what it asks of various actors. On this point, as we held before, “[t]he government’s imposition of an independent obligation on a third party does not impose a substantial burden on the appellants’exercise of religion.”

[Thanks to How Appealing for the lead.]

Illinois Becomes 4th State To Ban Gay Conversion Therapy For Minors

As reported by the Huffington Post, yesterday Illinois became the fourth state to ban gay conversion therapy for minors. Governor Bruce Rauner signed HB 217 (full text), the Youth Mental Health Protection Act which prohibits any mental health provider from engaging in sexual orientation change efforts with a person under the age of 18. The new law also broadly prohibits misleading advertising of conversion therapy:

No person or entity may, in the conduct of any trade or commerce, use or employ any deception, fraud, false pretense, false promise, misrepresentation, or the concealment, suppression, or omission of any material fact in advertising or otherwise offering conversion therapy services in a manner that represents homosexuality as a mental disease, disorder, or illness, with intent that others rely upon the concealment, suppression, or omission of such material fact. A violation of this Section constitutes an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act.

The new law, which becomes effective Jan. 1, 2016, includes extensive legislative findings supporting the therapy ban.

Illinois Statute Expands Permissible Student Prayer

Yesterday Illinois Governor Bruce Rauner signed HB 165 (full text) amending the Silent Reflection and Student Prayer Act to permit students during non-instructional time before or after school to engage not only in individually initiated prayer, but also "collectively initiated, non-disruptive prayer or religious-based meetings, including without limitation prayer groups, B I B L E (Basic Instruction Before Leaving Earth) clubs, or "meet at the flagpole for prayer" days," However these may not be "sponsored, promoted or endorsed in any manner by the school or any school employee."

Court Says Sale of Boston Church Was Invalid

In First Bostonview Management, LLC v. Bostonview Corp., (MA App., Aug. 19, 2015), the Massachusetts Appeals Court held the purported sale of the property of Boston's Swedenborgian Church on the Hill invalid. The court said in part:

[T]he sale of substantially all of the Bostonview church property (consisting of a church sanctuary, a parish meeting hall, a large apartment complex, offices, and parking spaces on prime land on Beacon Hill near the Massachusetts State House) was indisputably an "extraordinary transaction," and, if completed to the end would have stripped Bostonview of the very essence of its existence as a charitable corporation.... We conclude that the authority to make such a divesting asset/property sale contract ... was beyond the power of the charitable corporate board to delegate to two of its officers. The contract was void. The "shady" nature of the underlying prenegotiations to sell the church's very valuable (but sole) asset for $30 million -- including combined cash payments of close to $100,000 to two of the executive officers, and the purchase of the $94,000 luxury car for the church secretary -- only serves to demonstrate why restrictions on "extraordinary transactions" must be closely scrutinized by the charity's corporate board.

The court also held that: "subsequent approval or other conduct by the board of directors of a charitable corporation will not substitute for prior specific authorization to commit the charity to an extraordinary transaction."

Boston Business Journal gives additional background:

The case centered on developer Michael Perry’s 2004 agreement to pay $30 million to purchase the property.... Perry struck the agreement with Thomas J. Kennedy and Edward J. MacKenzie Jr., who were then officials at Bostonview Corp., the charitable organization that conducted business on behalf of the Swedenborgian church. MacKenzie, who has claimed he was an enforcer for incarcerated mobster Whitey Bulger, was later sentenced to 12 years in prison for allegedly stealing millions from the church.

130 Organizations Urge Obama To Rescind 2007 Justice Department Interpretation of RFRA

Yesterday a coalition of 130 religious, civil rights and advocacy organizations sent a letter (full text) to the President urging that the Justice Department's Office of Legal Counsel reconsider a 2007 Memorandum interpreting the interaction of the Religious Freedom Restoration Act with non-discrimination provisions in federal grant programs. The letter reads in part:

[T]he OLC Memo relies on flawed legal analysis and wrongly asserts that RFRA is “reasonably construed to require” a federal agency to categorically exempt a religiously affiliated organization from a grant program’s explicit statutory nondiscrimination provision, thus permitting the grantee to discriminate in hiring with taxpayer funds without regard to the government’s compelling interest in prohibiting such discrimination....

...[S]ome have cited the OLC Memo in arguing that RFRA should broadly exempt religiously affiliated contractors from the nondiscrimination requirements in Executive Order 11246, including those you added just last year that bar government contractors from discriminating against LGBT workers. And, some are trying to extend its reach beyond the context of hiring: Several grantees and contractors have cited the OLC Memo to support their arguments that the government should create a blanket exemption that would allow them to refuse to provide services or referrals required under those funding agreements, specifically in the context of medical care for unaccompanied immigrant children who have suffered sexual abuse.

ADL and Americans United each issued its own press release on the letter.

Thursday, August 20, 2015

Texas Supreme Court Rules On Houston Equal Rights Referendum Ballot Language

In yet another ruling on the referendum calling for the repeal of Houston, Texas' controversial Equal Rights Ordinance, the Texas Supreme Court yesterday in In re Williams and Woodfill, (TX Sup. Ct., Aug. 19, 2015), ruled on proper ballot language. It held that the vote must be on whether or not to approve the Ordinance, not on whether or not to approve its repeal. The Court also held that the city did not abuse its discretion by referring in the ballot language to the "Houston Equal Rights Ordinance." Houston Chronicle reports on the decision. (See prior related posting.)

Report Criticizes Collegiate Football Chaplaincy Programs

On Monday, the Freedom From Religion Foundation released a report titled Pray to Play: Christian Coaches and Chaplains Are Converting Football Fields Into Mission Fields. According to the Report:

Public universities and their employees cannot endorse, promote, or favor religion. Yet, many football coaches at public universities bring in chaplains—often from their own church or even members of their own family—to prey on and pray with students, with no regard for the rights of those students or the Constitution. These coaches are converting playing fields into mission fields and public universities are doing nothing to halt this breach of trust. They are failing their student athletes.

FFRF sent copies of the Report, which includes a Model Policy On Religion In Athletics, to 15 schools that appear to have the most problematic chaplaincies.

Slovakia Will Reject Muslim Migrants In EU Redistribution Plan

Last month, the European Union ministers agreed to a plan to redistribute some 32,000 of the 150,000 migrants from war-torn Syria, Iraq, Eritrea and Somalia that have found their way across the Mediterranean to Greece and Italy. As reported by TRT World, the EU hopes to reach agreement by the end of the year on redistribution of an additional 8,000. Meanwhile, The Telegraph reported yesterday that while Slovakia has agreed to accept 200 of the migrants, it says it will not accept any Muslims. An Interior Ministry spokesman said:

[W]e don't have any mosques in Slovakia so how can Muslims be integrated if they are not going to like it here?

EU sources say that while it would be legal to prioritize Christians because they are at extra risk of persecution, rejecting Muslims would be impermissible discrimination. But the Slovakian government says it plans to ask arriving migrants their religion.

Wednesday, August 19, 2015

7th Circuit: Rule Preventing Former Prison Employee From Marrying Inmate Is Unconstituitonal

In Riker v. Lemmon. (7th Cir., Aug. 14, 2015), the U.S. 7th Circuit Court of Appeals held that prison authorities had failed to adequately justify their refusal to allow Rebecca Riker, a former food services employee at an Indiana prison, a one-time visit in order to marry inmate Paul Vest who is serving a 50-year sentence for robbery. Riker met Vest when she was employed at the prison and Vest worked as a prisoner under her supervision. Riker left her job when it was discovered that she had a romantic relationship with Vest, which included sexual intercourse in a walk-in cooler at the facility. Relying in part on the U.S. Supreme Court's 1987 decision in Turner v. Safley, the 7th Circuit said in part:

The right to marry includes the right to select one’s spouse. See Obergefell, 135 S. Ct. at 2599 (noting “that the right to personal choice regarding marriage is inherent in the concept of individual autonomy” and that there is dignity in individuals’ “autonomy to make such profound choices”). The proper inquiry, therefore, is whether Ms. Riker was prohibited from marrying the spouse of her choosing. Because Ms. Riker has not been left with any alternative means of exercising her right to marry Vest, it is clear that the burden on that right was not minimal. ...

The Department also submits that the prohibition of Ms. Riker’s marriage is necessary to serve as a deterrent to current employees. It submits that “[t]he policy communicates to IDOC employees that if they begin an inappropriate relationship with an offender while working at an IDOC facility, they will not only be held accountable but also will be prevented from seeing the inmate for as long as he or she is incarcerated.” The Department has not provided any evidence, however, to support its contention that prohibiting Ms. Riker’s marriage acts as a deterrent or that such deterrence is necessary.

National Law Journal reports on the decision.

Court Decrees Final Injunction Terms For Monitoring Florida Prison Kosher Meal Policy

As previously reported, in April the U.S. Department of Justice won its long-running lawsuit against the state of Florida over its prisons' kosher meal policy. Last week in United States of America v. Secretary, Florida Department of Corrections, (SD FL, Aug. 12, 2015), the court settled on the final language for the injunction it issued by separate order. The parties agreed on the language on accountability and monitoring, but disagreed on the extent the Justice Department would have access to inspect prisons for compliance. The court largely accepted the Justice Department's proposed language, and gave the federal government access to personnel, prisoners and food facilities so it can monitor compliance. NorthEscambia.com reports on the court's order.

8th Circuit: Preacher's Free Speech Rights Not Infringed By State Fair Rules On Where He Can Stand

In Powell v. Noble, (8th Cir., Aug. 14, 2015), the U.S. 8th Circuit Court of Appeals agreed with the federal district court that a Christian preacher's free expression rights were not infringed when he was barred from delivering his religious message just outside the paid admission area at the Iowa State Fair. The court said in part:

The fair’s rule prohibiting impeding the flow of people in and out of the fairgrounds addresses the need to limit congestion and disruption and to facilitate safe and efficient access to the fair.... Powell retains alternative channels of communication on the fairgrounds.... While these alternatives may not be Powell’s first choice, “‘[t]he First Amendment does not demand unrestricted access to a nonpublic forum merely because use of that forum may be the most efficient means of delivering the speaker’s message.’” .... We also conclude the district court did not abuse its discretion in holding Powell is unlikely to succeed in showing the rule against bringing signs attached to poles and sticks to the fair is unreasonable....The state has a valid interest in protecting the safety of fairgoers... Neither are we persuaded by Powell’s argument that the rule is arbitrary because the fair allows mounted poles to support tents and flags and small sticks for the fair’s many food-on-a-stick offerings.

The court however remanded the case to the district court for it to consider whether the State Fair's unwritten rules on access to the fairgrounds are overly vague in violation of the due process clause. The Des Moines Register reports on the decision.