ACLU Sues Catholic Hospitals Over Denial of Abortions To Treat Serious Medical Complications

In a federal lawsuit filed last week, the ACLU sued a Michigan-based Catholic health care system charging that its hospitals violate federal law by denying appropriate emergency care to women suffering pregnancy complications, including miscarriages. The complaint (full text) in American Civil Liberties Union v. Trinity Health Corporation, (ED MI, filed 10/1/2015), contends that the hospitals, by following the Conference of Bishops' Ethical and Religious Directives for Catholic Health Care Services ban on terminating a woman's pregnancy under any conditions, violate the Emergency Medical Treatment and Active Labor Act as well as the Rehabilitation Act. In a press release announcing the filing of the lawsuit, the ACLU said in part:

We’re taking a stand today to fight for pregnant women who are denied potentially life-saving care because doctors are forced to follow religious directives rather than best medical practices. Catholic bishops are not licensed medical professionals and have no place dictating how doctors practice medicine, especially when it violates federal law.

Two Cert Denials of Interest As SCOTUS Opens 2015 Term

In the Order List issued yesterday at the beginning of the October 2015 Term, the U.S. Supreme Court denied certiorari in hundreds cases.  Among the cases in which the Court denied review were:

Phillips v. New York (Docket No. 14-1445): In the case, the U.S. 2nd Circuit Court of Appeals he U.S. Second Circuit Court of Appeals upheld New York's requirement that, subject to medical and religious exemptions, all children be vaccinated before attending public school. It also upheld, over free exercise objections, New York's regulation allowing officials to temporarily exclude students who are exempted from the vaccination requirement on religious grounds from school during an outbreak of a vaccine‐preventable disease. (See prior posting.) AP reports on the Court's action.

Sac and Fox Nation of Oklahoma v. Thorpe (Docket No. 14-1419): In the case the U.S. 3rd Circuit Court of Appeals held that despite its literal language, Congress did not intend the Native American Graves Protection and Repatriation Act to apply to protect Native American rights in a dispute between the sons of famous Native American Athlete Jim Thorpe and the Pennsylvania town that renamed itself after Thorpe in an agreement with Thorpe's widow (his third wife) to have his remains buried there.  (See prior posting). New York Daily News has more background and reports on the court's action.

Europe's Parliamentary Assembly Adopts Resolution on Freedom of Religion

Last week (Sept. 30), the Council of Europe's Parliamentary Assembly  adopted Resolution 2076 titled Freedom of Religion and Living Together in a Democratic Society.  The Resolution sets out the Assembly's primary concerns:

Many beliefs and churches are developing in Europe alongside the religions which have influenced the history of our continent. The Assembly notes with great regret and anxiety that this continues to give rise to tensions, lack of understanding and suspicion, and even to xenophobic attitudes, extremism, hate speech and the most despicable violence. This vicious circle must be broken....

[T]he Assembly considers that the principle of secularity does not require the elimination of religion from social space; quite the contrary, this principle, properly interpreted and implemented, protects the possibility for the different beliefs, religious and non-religious, to coexist peacefully while all parties respect shared principles and values.

The Resolution focuses on the extent to which governments may regulate certain religious practices:

...  Certain religious practices remain controversial within national communities. Albeit in different ways, the wearing of full-face veils, circumcision of young boys and ritual slaughter are divisive issues and the Assembly is aware of the fact that there is no consensus among Council of Europe member States on these matters....

As far as circumcision of young boys is concerned the Assembly ... out of a concern to protect children’s rights which the Jewish and Muslim communities surely share, recommends that member States provide for ritual circumcision of children not to be allowed unless practised by a person with the requisite training and skill, in appropriate medical and health conditions. Furthermore, the parents must be duly informed of any potential medical risk or possible contraindications and take these into account when deciding what is best for their child, bearing in mind that the child’s interest must be considered the first priority.

Where ritual slaughter is concerned, the Assembly is not convinced that legislation prohibiting this practice is really necessary, or that it would be the most effective way of ensuring the protection of animals; legislation which imposes strict requirements, like that of France and Germany, achieves a balanced reconciliation of the legitimate concern to protect animals from unjustified suffering and respect for the right to freedom of religion.

 The Council's resolutions are advisory. A video of the Council's debate on the Resolution is online.

9 Alabama Counties Stop Issuing Marriage Licenses In Response To Marriage Equality Ruling

AP reports today that in at least 9 of Alabama's 67 counties judges have completely stopped issuing marriage licences now that the U.S. Supreme Court has legalized same-sex marriages.  The judges are relying on a 1961 change in Alabama's law that made it optional rather than mandatory for probate courts to issue marriage licences.  This has created a region in southwest Alabama with a population of 78,000 in which residents will have to travel to other counties to obtain a license.

Recent Prisoner Free Exercise Cases

In Welch v. Spaulding, (6th Cir., Sept. 30, 2015), the U.S. 6th Circuit Court of Appeals in a 2-1 decision affirmed the district court's denial of qualified immunity to prison food service officials who are being sued by a Muslim inmate who claims that his Ramadan meals lacked sufficient caloric value.

In Merrick v. Ryan, 2015 Ariz. App. Unpub. LEXIS 1173 (AZ App., Sept. 24, 2015), an Arizona appeals court dismissed an inmate's suit claiming he was denied religious materials and practices. The suit asserting state law claims failed to name the state as a defendant.

In Moon v. Garcia, 2015 U.S. Dist. LEXIS 129291 (SD IL, Sept. 25, 2015), an Illinois federal district court permitted plaintiff, a former federal inmate, to proceed with his claim that authorities created a plan to disrupt authorized religious activities of Muslim inmates.

In Grayson v. Goetting, 2015 U.S. Dist. LEXIS 129290 (SD IL, Sept. 25, 2015), an Illinois federal district court permitted an African Hebrew Israelite inmate who had taken the Nazirite vow to proceed with his complaint that he was forced to remove his dreadlocks.

In Hudson v. Spencer, 2015 U.S. Dist. LEXIS 129304 (D MA, Sept. 25, 2015), in a suit by Nation of Islam inmates, a Massachusetts federal district court ordered correctional authorities to  provide plaintiffs access to televised recordings of Jumu'ah services led by an appropriate chaplain whenever an NOI chaplain is unavailable to lead services in person. However the court dismissed complaints about failure to accommodate various other NOI practices relating to fasting and feast sessions, religious attire and "spiritual drilling."

In Dicks v. Shearin, 2015 U.S. Dist. LEXIS 129824 (D MD, Sept. 28, 2015), a Maryland federal district court held that a Muslim inmate's rights may have been infringed when the former warden failed to follow a Department of Corrections policy that assured Muslim inmates fasting during Ramadan received the same caloric intake as non-fasting prisoners.

In Ramadan v. FBOP, 2015 U.S. Dist. LEXIS 129845 (SD WV, Sept. 28, 2015), a West Virginia federal district court rejected a Muslim inmate's challenge to the policy of barring congregational prayer, and his complaint that he was prevented for a period of time from bringing a copy of the Noble Quran into the chapel.

In Johnson v. Swibas, 2015 U.S. Dist. LEXIS 130379 (D CO, Sept. 28, 2015), a Colorado federal district court adopted a magistrate's recommendations and allowed an inmate to move ahead certain of the defendants with his complaint that he was denied access to kosher meals to which he is not allergic.

In Woodward v. Ali, 2015 U.S. Dist. LEXIS 130687 (ND NY, Sept. 29, 2015), a New York federal district court adopted a magistrate's recommendations and denied summary judgment to a Muslim inmate on his complaint that he was removed from the Ramadan meal list.

In Elmore v. Herring, 2015 U.S. Dist. LEXIS 131348 (ED NC, Sept. 29, 2015), a North Carolina federal district court dismissed complaints by a Muslim inmate regarding a prison's post-chapel strip-search policy, his allegations that Christian inmates are allowed more services and furnished more resources than Muslim inmates, and his complaint regarding the absence of a Halal diet.

Police Departments Adding "In God We Trust" To Patrol Cars

The New York Times, in an article posted yesterday, reviews the growing trend among law enforcement agencies in the South and Midwest to place the national motto "In God We Trust" on their squad cars. The Times reports:

“With the dark cloud that law enforcement has been under recently, I think that we need to have a human persona on law enforcement,” said Sheriff Brian Duke of Henderson County, Tenn. “It gave us an opportunity to put something on our cars that said: ‘We are you. We’re not the big, bad police.’ ”

But critics worry that displays of “In God We Trust” on taxpayer-funded vehicles cross the threshold of constitutionality, even though the courts have repeatedly brushed aside challenges to the motto, which Congress enshrined in 1956. Explanations like the one Sheriff Duke offered have not curbed those frustrations.

“This motto has nothing to do with the problem of police forces’ shooting people, but it’s a great way to divert attention away from that and wrap yourself in a mantle of piety so that you’re above criticism,” said Annie Laurie Gaylor, a co-president of the Freedom From Religion Foundation, a Wisconsin-based group that has demanded that law enforcement officials stop exhibiting the motto. “The idea of aligning the police force with God is kind of scary. That’s the first thing you’d expect to see in a theocracy.”

Class Action Filed Against Burma's President By Persecuted Rohingyas

As reported by Reuters and Courthouse News Service, this week a coalition of 19 Muslim American organizations and a Rohingya Muslim who previously lived in the State of Rakhine in Myanmar filed a class action lawsuit against the President of Burma (Myanmar) and several other current or former government officials of Myanmar or Rakhine state.  The complaint (full text) in Burma Task Force v. Sein, (SD NY, filed 10/1/2015), filed in federal district court in New York, alleges that defendants violated the Torture Victims Protection Act and the Alien Tort Claims Act, contending:

The Rohingya people numbering over 1.3 million is a Muslim minority living in western Myanmar. Although they are living in the country for generations they are denied citizenship and basic necessities including basic healthcare, work and schooling. They are  primary targets of hate crimes and discrimination amounting to genocide fueled by extremist nationalist Buddhist monks and Thein Sein government....

In 1982, the Burman supremacist government stripped most Rohingya of their citizenship. They were re-named “Bengalis,” and reclassified as foreign to Myanmar. Rohingya speak a different language and are not “Bengalis,” a different ethnic group that lives mostly in Bangladesh. Their only common identity is that both groups are Muslim.

Carson Want IRS To Penalize CAIR Over Its Call For Him To Leave Presidential Race

As previously reported, last month the Council on American-Islamic Relations called for Dr. Ben Carson to withdraw from the Republican Presidential contest after Carson told an interviewer that a Muslim should not be made President and that Islam is inconsistent with the U.S. Constitution.  Now, as reported by today's Washington Times, Dr. Carson is urging the Internal Revenue Service to immediately revoke CAIR's tax-exempt status.  Carson has posted a petition on his campaign website saying in part:

The Council on Islamic-American Relations (CAIR), a U.S. Muslim group, recently demanded that I withdraw as candidate for the 2016 presidential race. By doing so, the organization has brazenly violated IRS rules prohibiting tax-exempt nonprofits like CAIR to intervene in a political campaign on behalf of—or in opposition to—a candidate. 

5th Circuit (With Dissents) Denies En Banc Rehearing In Non-Profit Contraceptive Mandate Cases

In East Texas Baptist University v. Burwell, (5th Cir., Sept. 30, 2015), the U.S. 5th Circuit Court of Appeals denied a panel rehearing and, by a vote of 4-11, denied an en banc rehearing in three related cases, all raising challenges to the Obama administration's accommodation for religious non-profits that object to the Affordable Care Act requirement that their health insurance policies cover contraceptive services. The 3-judge panel held that plaintiffs had not shown a substantial burden on their religious exercise. (See prior posting.) Judge Jones, joined by Judges Clement and Owen filed a dissent from the denial of the en banc rehearing, saying in part:

This case goes to the heart of religious liberty protected by the Religious Freedom Restoration Act (“RFRA”).... How ironic that this most consequential claim of religious free exercise, with literally millions of dollars in fines and immortal souls on the line, should be denied when nearly every other individual religious freedom claim has been upheld by this court. How tragic to see the humiliation of sincere religious practitioners, which, coming from the federal government and its courts, implicitly denigrates the orthodoxy to which their lives bear testament. And both ironic and tragic is the harm to the JudeoChristian heritage whose practitioners brought religious toleration to full fruition in this nation. Undermine this heritage, as our founders knew, and the props of morality and civic virtue will be destroyed.

Austin American-Statesman reports on the rehearing denial.

Britain Exempts Sikhs From Safety Helmet Requirements

Britain's Department for Work and Pensions issued a press release yesterday announcing that Sikhs who wear turbans for religious reasons are now exempt in almost all workplaces from safety helmet rules.  Previously, an exemption was available only for Sikhs working in the construction industry.  Parliament in enacting the Deregulation Act 2015 extended the exemption to all industries.  Under Sections 6 and 7 of the Act, however, safety helmets may still be required for Sikh first responders and those in the military. Law & Religion UK blog reports on the changes.

USCIRF Extended To December 11 As Part of Congressional Continuing Resolution

The U.S. Commission on International Religious Freedom has received at least a temporary reprieve.  On Wednesday President Obama signed the Continuing Appropriations Act that funds the government until December 11.  The funding provisions are a rider to HR 719, the TSA Office of Inspection Accountability Act of 2015. (Full text of Act.)  In addition, Sec. 147 of the Act extends the life of the U.S. Commission on International Religious Freedom to December 11.  Without this extension, USCIRF would have ceased to exist on Sept. 30.

School Sued Over Refusal To Allow Religious Allusion On Donor's Plaque

A lawsuit was filed Wednesday against the Colorado School of Mines by an alumnus (a former member of the school's football team) because the school rejected an inscription he chose for his donor plaque.  The complaint (full text) in Lucas v. Johnson, (D CO, filed 9/30/2015), contends that as part of the school's fundraising campaign for a new Athletic Complex, donors could purchase a personalized nameplate to be placed in the new football locker room.  The donor could place a 3-line quote, along with certain other information, on his or her nameplate.  Alumnus Michael Lucas submitted only one line for his quote: "Colossians 3:23 & Micah 5:9."  The school rejected the quote because if one went to the text of the Colossians reference, it included mention of "the Lord." A school faculty member soliciting contributions told Lucas that his nameplate could not use a quote that contained the words God, Lord, or Jesus, but he could choose another Bible verse that did not contain those words.  Plaintiff contends this policy violates his 1st and 14th Amendment rights.  Alliance Defending Freedom issued a press release announcing the filing of the lawsuit.

Most of Rabbinical College's Challenges To Land Use Restrictions Are To Proceed To Trial

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, (SD NY, Sept. 29, 2015), a New York federal district court ruled on various motions in challenges to the land use ordinances of the Village of Pomona, New York that allegedly were adopted to prevent plaintiffs from constructing a planned rabbinical college. (See prior related posting.)  In a 145-page opinion, the court imposed limited sanctions on defendants for their destruction of a relevant Facebook posting:

Because Defendants concealed—and failed to disclose—the relevant Facebook post and potentially a portion of the accompanying text messages, the jury will be instructed that it may infer that the contents of the Facebook Post indicated discriminatory animus towards the Hasidic Jewish population. Defendants also will be precluded from offering evidence to rebut that specific inference, though they can still present evidence to indicate that the Challenged Laws were not adopted for discriminatory reasons.

The court went on to allow plaintiffs to proceed on their equal protection, free exercise, freedom of association, RLUIPA, Fair Housing Act and various state law challenges, denying motions by both parties for summary judgment.  However the court dismissed plaintiffs' free speech challenge, holding that "the fact that building a rabbinical college might enable religious speech does not render its construction speech itself."

Respondents In Oregon Wedding Cake Case Refuse To Post Bond For Their Appeal

As previously reported, in July the Oregon Bureau of Labor and Industries, as part of a cease and desist order, levied $135,000 in damages against the owners of Sweet Cakes by Melissa Bakery for their refusal to provide a wedding cake to a same-sex couple. Instead of paying the damages the owners have filed an appeal with the state court of appeals, but, according to yesterday's Oregonian, they refuse to provide the bond or irrevocable letter of credit that is required to pursue the appeal. Aaron and Melissa Klein apparently claim financial hardship even though crowdfunding sites set up to support them have raised some $515,000. State officials have now filed in court seeking a judgment that will allow them to attach assets belonging to the Kleins. [Thanks to Scott Mange for the lead.]

Anchorage, Alaska Passes LGBT Anti-Discrimination Law Over Religious Objections

Late Tuesday night, the Anchorage, Alaska Assembly by a vote of  9-2 enacted amendments to the city's equal rights ordinance barring discrimination on the basis of sexual orientation and gender identity in housing, employment, public accommodations and education. (Full text of Ordinance as proposed.) Alaska Dispatch News reporting on the Assembly's actions says that the ordinance will take effect when signed by Assembly Chair Dick Traini, expected on Friday. Mayor Ethan Berkowitz does not plan to veto the ordinance. A package of 17 proposed amendments (full text) were largely rejected. They focused on expanding religious exemptions and rules for gender-segregated restrooms.  According to the Dispatch News:

In the end, only two were approved: a Flynn amendment stating that nothing in the law would trump state and federal First Amendment rights, and an Evans amendment adding a reference to a Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church and School vs. EOCC, to define a “ministerial exemption.”

The Assembly narrowly rejected Assembly Chair Dick Traini's proposals to extend the city’s existing religious preference law to “nonprofit affiliates,” such as Providence Alaska Medical Center, and to add language that would prevent employers from firing employees for expressing religious views.

Opponents of the law, who argue that it infringes religious liberty, plan to seek a referendum to repeal it. The Assembly rejected a proposal to require a public advisory vote on the measure.  Alaska Public Media reported:

Opposition to the bill came primarily from two socially conservative Assembly Members from the Eagle River Chugiak area, Amy Demboski and Bill Starr, both of whom say it infringes on residents’ religious and free speech rights. Much of the audience was wearing red–a sign of opposition to the measure, called for by a coalition of conservative faith groups. After hours of impassioned testimony that often addressed the crowd instead of fellow Assembly Members, Starr left his seat behind the dais to speak from the floor as a citizen rather than official.

“I buy into that Bible, that book, that says homosexuality and that type of deviant behavior is wrong.”

He then slipped on a red vest before receiving the night’s only standing ovation.

“And I’ll tell you what red is–somebody said ‘well what what are you wearing red for?’ It’s the blood of Jesus Christ folks, that’s what it represents.”

CNN Says Warren Jeffs Still Directs FLDS Church From Prison

In a long investigative report on convicted sexual offender and FLDS Church leader Warren Jeffs, CNN quotes a private investigator who says that while day-to-day matters are run Jeffs' brother, Jeffs himself still "actively directs church matters from prison." CNN produced an hour-long special last night on Jeffs and life inside the polygamous FLDS Church.

DOJ Files RLUIPA Suit Against Illinois City Over Mosque Rezoning

The U.S. Department of Justice announced yesterday that it has filed suit against the city of Des Plaines, Illinois alleging that the city violated RLUIPA when it refused to rezone a vacant office building to allow the American Islamic Center to operate a place of worship there. The complaint (full text) in United States v. City of Des Plaines, Illinois, (ND IL, filed 9/30/2015) alleges the city violated the substantial burden, equal terms and discrimination provisions of RLUIPA. As summarized in the press release:

The complaint alleges that the city imposed parking standards and other zoning criteria that were not supported under its zoning ordinance and that it had never imposed on non-Muslim places of worship.

Chicago Tribune reports on the lawsuit.

Pope Francis Met With Kim Davis; Supports Conscientious Objection

In a press release issued yesterday, Liberty Counsel disclosed that Rowan County, Kentucky Clerk Kim Davis met with Pope Francis at the Vatican Embassy in Washington last Thursday. Davis' husband was also at the private meeting during which the Pope, speaking in English, thanked Davis for her courage and presented her with rosaries for her parents who are Catholic. Davis has refused to issue marriage licences to same-sex couples, and was jailed for contempt for several days as a result. (See prior posting.) In a press conference on his plane back to Rome (before the meeting with Davis was announced publicly), the Pope told reporters that conscientious objection is a human right. When asked whether that applies to government officials, the Pope responded: "It is a human right and if a government official is a human person, he has that right."

Archdiocese Must Go To Trial On Teacher's Hostile Work Environment Claims

In Bohnert v. Roman Catholic Archbishop of San Francisco, (ND CA, Sept. 25, 2015), a California federal district court refused to dismiss a hostile work environment and emotional distress suit by by a former biology teacher in a boys' Catholic high school.  As described by the court, male students at the school sexually harassed the teacher, including disseminating several "upskirt" photos and videos of her.  In a 38-page opinion, the court rejected the Archdiocese's  motion for summary judgment on its "ministerial exception" and "church autonomy" defenses, finding that numerous factual issues remain.

Recent Articles of Interest

From SSRN:

• Meital Pinto, The Absence of the Right to Culture of Minorities Within Minorities in Israel: A Tale of a Cultural Dissent Case, (4 Laws 579–601 (2015)).
• Janne Elisabeth Nijman, Grotius’ Imago Dei Anthropology: Grounding Ius Naturae et Gentium, (Martti Koskenniemi, Monica García-Salmones, and Paolo Amoroso (Eds.), International law and Religion (Forthcoming)).
• Eric Heinze, Hate Speech and Democratic Citizenship, (in Hate Speech and Democratic Citizenship, Oxford University Press, February 2016).
• Darryl Li, Jihad in a World of Sovereigns: Law, Violence, and Islam in the Bosnia Crisis, (Law and Social Inquiry, 2015).
• Christopher R. Hoyt, Income Tax Deductions for Charitable Bequests of IRD, (September 24, 2015).

From SSRN (Same-Sex Marriage):

• James M. Donovan, Half-Baked: The Demand by For-Profit Businesses for Religious Exemptions from Selling to Same-Sex Couples, (Loyola of Los Angeles Law Review, Vol. 49, 2015).
• Patrick Talbot, Same-Sex Marriage and Religious Liberty Clashes in the U.S., After Obergefell v. Hodges: (An American Constitutional Challenge), (Anthology on Religious Freedom by Center of Ethics and Socio-Religiosity Studies Petra Christian University (PCU), Forthcoming).
• Anthony C. Infanti, Victims of Our Own Success: The Perils of Obergefell and Windsor, (Ohio State Law Journal Furthermore, Forthcoming).
• Peter Nicolas, Obergefell's Squandered Potential, (California Law Review Circuit, 2015 Forthcoming).