RFRA Allows Insured To Refuse Contraceptive Coverage

In Wieland v. U.S. Department of Health and Human Services, (ED MO, July 21, 2016), a Missouri federal district court enjoined the federal government from enforcing the Affordable Care Act against a couple who, on religious grounds, object to participating in a healthcare plan that provides coverage for contraceptives and similarly object to providing contraceptive coverage to their daughters who are on their health insurance policy. Plaintiff, a Roman Catholic, is a Missouri state legislator and receives health insurance through the state's health care plan.  Finding that plaintiffs have standing because they might be able to find a plan that does not offer contraceptive coverage, the court went on to hold that RFRA bars enforcement of the mandate against plaintiffs, saying in part:

Defendants further argue that “[i]t is not a substantial burden on a person’s religion to subscribe to a group health plan that covers services that the person will not use for religious reasons, or that other individuals covered by the plan will elect, in the exercise of their personal choice, to utilize.” Plaintiffs contend that Defendants’ argument is, in essence, an attack on the sincerity of their religious beliefs, which the Supreme Court most recently in Hobby Lobby cautioned against. This Court agrees. Defendants’ argument is, in effect, an argument that Plaintiffs’ religious beliefs are unreasonable. However, the sincerity of Plaintiffs’ religious beliefs has not been disputed, and it is not for the Court “to say that [Plaintiffs’] religious beliefs are mistaken or insubstantial.”

The court went on to hold that even assuming that the government has a compelling interest in "a workable insurance system that covers a wide range of preventative health services," there are less restrictive means of achieving this goal:

the government could allow a system like that in place in Missouri before the Mandate, where individuals could simply check a box to opt out of contraceptive coverage.

Modern Healthcare reports on the decision. (See prior related posting.) [Thanks to Jeff Pasek for the lead.] 

Trump Again Calls For Repeal of Politicking Limits on Churches-- Some Background

In Donald Trump's acceptance speech at the Republican National Convention last night (full text from Politico), he repeated his previous promise to work for repeal of the Johnson Amendment, saying:

At this moment, I would like to thank the evangelical community who have been so good to me and so supportive. You have so much to contribute to our politics, yet our laws prevent you from speaking your minds from your own pulpits.

An amendment, pushed by Lyndon Johnson, many years ago, threatens religious institutions with a loss of their tax-exempt status if they openly advocate their political views.

I am going to work very hard to repeal that language and protect free speech for all Americans.

The relevant language is found in Section 501(c)(3) of the Internal Revenue Code which, in describing religious and charitable organizations that qualify for tax-exempt status, says that they may "not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office."

Here is a history and critique of the Johnson Amendment from the perspective of Alliance Defending Freedom, an organization that seeks its repeal. And here is an issue of Liberty Magazine containing four articles largely supporting the Amendment's underlying policy and constitutionality.

Plaintiffs Lack Standing To Challenge Florida Chabad Center

In Gagliardi v. City of Boca Raton, (SD FL, July 21, 2016), a Florida federal district court dismissed on standing grounds a challenge by residents and taxpayers of Boca Raton to zoning changes by the city that permitted a Chabad (Hasidic Jewish) group to construct a religious center.  Plaintiffs, who identified themselves as Christians, claim that the city's actions violated the Establishment clause, the equal protection and due process clauses, and the Florida Constitution.  Dismissing the complaint, with leave to file an amended complaint, the court said in part:

Plaintiffs fail to allege any injury at all, let alone one that is concrete and particularized. The closest they come to asserting an injury is when they allege that the building is “injurious to residents in the area including” Plaintiffs.... This allegation is insufficient because it merely states in conclusory fashion that the building is “injurious” without specifying how it causes injury...

Rejecting plaintiff's claim of taxpayer standing, the court said in part:

The only expenditure they identify is the payment of salaries to City employees who allegedly “provided favorable treatment to one religious group.”... “Nearly all governmental activities are conducted or overseen by employees whose salaries are funded by tax dollars. To confer taxpayer standing on such a basis would allow any municipal taxpayer to challenge virtually any governmental action at anytime...."

Palm Beach Sun Sentinel reports on the decision.

White House Hosts Belated Eid al-Fitr Reception

Yesterday afternoon, President Obama hosted a somewhat belated Eid al-Fitr reception at the White House. In his Remarks (full text) he said in part:

For Muslims across the United States and around the world, this is a time of spiritual renewal -- a time to reaffirm your duty to serve one another, especially the least fortunate among us.  And it’s a time to reflect on the values that guide you in your faith -- gratitude, compassion and generosity.  And it’s a reminder that those values of Islam -- which comes from the word salaam, meaning peace -- are universal.... 

Today is also another reminder that Muslims have always been a part of America.  In colonial times, many of the slaves brought over from Africa were Muslim.  We insisted on freedom of religion, in Thomas Jefferson’s words, for, “the Jew and Gentile, the Christian and the Mahometan.”  For more than two centuries, Muslim Americans of all backgrounds -- Arab and Asian, African and Latino, black and white -- have helped build America....  

And Muslim Americans have enriched our lives every single day.  You’re the doctors we trust with our health, entrepreneurs who create jobs, artists who inspire us, activists for social justice -- like the LGBT Muslims who are on the frontlines in the fight for equality....  You’re the athletes that we cheer for -- like American fencing champion Ibtihaj Muhammad... who is going to be proudly wearing her hijab when she represents America at the Rio Olympics.

DOJ Sues Township Over Denial of Zoning Variance For Mosque

The U.S. Department of Justice announced yesterday that it has filed suit against  Bensalem Township, Pennsylvania over the township's denial of a zoning variance to permit Bensalem Masjid to construct a mosque on property near a commercial area.  The complaint (full text) in United States v. Bensalem Township, Pennsylvania, (ED PA, filed July 21, 2016), alleges that the zoning denial violates the substantial burden, equal terms, discrimination and unreasonable limitations provisions of the Religious Land Use and Institutionalized Persons Act. Washington Times reports on the lawsuit.

Another Court Refuses To Enjoin California's Reproductive FACT Act

In Mountain Right to Life v. Harris, (CD CA, July 8, 2016), a California federal district court denied a preliminary injunction against enforcement of California's Reproductive FACT Act. The Act requires medical clinics that offer family planning or pregnancy related services to furnish clients a notice that California has public programs that provide free or low-cost access to family planning, pre-natal care and abortion services. Clinics offering pregnancy-related services that do not have licensed medical personnel on staff must provide notice of that fact. In the case, a faith-based crisis pregnancy center argued that the Act violates its free speech and free exercise rights. The court found that the center did not show a likelihood of success on the merits.  The court concluded that the state has a compelling interest in ensuring that people know whether or not they are receiving care from licensed professionals. The statute's other notice requirement is a constitutionally permissible regulation of professional speech to protect the government's substantial interest in its residents knowing the health care resources that are available. Two other federal district courts have reached similar conclusions. (See prior posting.)

Pence Accepting VP Nomination Defines Himself As A Christian First

At the Republican National Convention yesterday evening, Indiana Governor Mike Pence accepted the nomination for vice-president. (Full text of remarks.) In acknowledging his introduction to the audience by House Speaker Paul Ryan, Pence said:

Paul knows me well, and he knows the introduction I prefer is just a little bit shorter: I’m a Christian, a conservative and a Republican, in that order.

UPDATE: The New York Times yesterday traced the details of Pence's religious journey from the Catholic Church to Evangelical Christianity.

FLDS Leader and His Law Firm Sued Over Exploitation of Minors

Courthouse News Service reports on a lawsuit filed last week in Utah federal district court by 21 former members of the polygamous FLDS Church and their children.  In a 121-page complaint in Bistline v. Jeffs, (D UT, filed 7/13/2016)  (full text) the suit names as defendants FLDS leader Warren Jeffs, lawyer Rodney Parker and Parker's Utah law firm Snow, Christensen & Martineau, charging:

On or about August 6, 1998, Rulon Jeffs suffered a major stroke which left him largely impaired and paved the way for [Warren] Jeffs to eventually assume complete and absolute control of the FLDS. As Defendant Jeffs assumed greater control over the FLDS ..., the concept of celestial or spiritual “marriage” of children was not yet broadly practiced.... As he assumed the mantle of power that would later culminate in his self-avowed role as Prophet, ... Jeffs was committed to changing this state of affairs and was obsessed with the creation of a controlled society in which he was the absolute ruler and the wholesale rape of young girls by himself and others was treated as a ceremonially sacrosanct ritual. He sought to institutionalize this atrocious practice and to cloak it with the superficial trappings of legal acceptance, so he retained SC&M to develop an overarching scheme and plan, executed and developed by SC&M during period of years, to develop the legal framework within which Jeffs and his favored cohorts would possess means to enforce their lewd, sadistic, tortious and criminal wishes upon the FLDS people...

The complaint charges defendants with legal malpractice, breach of fiduciary duty, fraud, negligent misrepresentation, conspiracy, violation of the Trafficking Victims Protection Act, aiding and abetting, and violations of RICO.

In a statement denying wrongdoing, the Snow, Christensen & Martineau law firm said in part: "Our work in protecting religious liberties and other civil rights of the FLDS was not an endorsement of or complicity in illegal behavior."

Romania's Constitutional Court Upholds Proposed Traditional Marriage Amendment

Romania's Constitutional Court yesterday ruled unanimously that a proposal to amend Article 48 of the country's Constitution to preclude same-sex marriage is constitutional.  The Constitutional provision now reads: "The family is founded on the freely consented marriage of the spouses...."  According to Reuters, the proposed amendment would replace "the spouses" with "a man and a woman."  The petition proposing the amendment received 3 million signatures earlier this year.  The next steps will be for the amendment to be approved by Parliament and then submitted to a national referendum. The case has garnered international attention. The U.S. advocacy group Liberty Counsel submitted an amicus brief (full text) in support of the proposed amendment. Twenty-eight human rights groups, including Amnesty International, had urged the Court to reject the proposed amendment.

Settlement Leads To Dropping of Criminal Charges Against St. Paul Archdiocese

In St. Paul, Minnesota yesterday, a state trial court held a hearing on the progress so far in implementing a settlement agreement that was entered last December in civil charges brought against the Catholic Archdiocese of St. Paul & Minneapolis by the Ramsey County Attorney’s Office.  The suit filed last June alleged failure to protect children from abuse by former priest Curtis Wehmeyer. (See prior posting.) Also last June the County Attorney filed criminal charges against the Diocese.  As reported by AP, at yesterday's civil hearing the parties announced an agreement to also drop the criminal charges.  In exchange, the Archdiocese agreed to extend the civil settlement agreement to 2020. It also admitted wrongdoing and agreed that Archbishop Bernard Hebda will personally participate in at least three more restorative justice sessions with abuse victims.  In a Letter to the Faithful posted on the Archdiocese's website, Archbishop Hebda said in part:

Today, the Ramsey County Attorney dismissed the criminal charges. More importantly, through our Civil Settlement Agreement, [County Attorney] John Choi and I have committed to a course of action that will keep kids as safe as possible. I am grateful that his office will hold us accountable. Over the past year, we worked with Mr. Choi and his team to define how the Archdiocese can best create and maintain safe environments for children in our parishes, schools and communities. Over the past six months, we have demonstrated our commitment to that path. Today, we humbly acknowledge our past failures and look forward to continuing down that path to achieve those vital, common goals that together we all share.

Mormon Car Salesman Sues Claiming Religious Harassment By Employer

Arkansas Online reported yesterday on a religious discrimination lawsuit filed by a former auto salesman against a Fort Smith, Arkansas Ford dealership.  Richard Black says that about two weeks after he began working for Randall Ford, the used car manager began to question him intrusively about his religious beliefs. He particularly harassed him about his religious undergarments.  Black also complained that he was told to lie to customers about prices and deals in order to sell vehicles.  After 7 months he was fired, being told he did not fit in.  The suit was filed in state court in June and removed to federal court last week.

Turkey Dismisses 492 From Religious Affairs Directorate Over Coup Attempt

Reuters reported yesterday that in Turkey, 492 staff members have been removed from their positions at the Religious Affairs Directorate (Diyanet) on suspicion of involvement in the recent coup attempt against  President Tayyip Erdogan. The Diyanet employs over 100,000 people.  Turkey's government claims that cleric Fethullah Gulen was behind the coup.  Gulen, who now lives in the United States has denied the charges. (RNS).

1st Circuit: No Qualified Immunity In Establishment Clause Suit Against Puerto Rico Police Officials

In Marrero-Mendez v. Calixto-Rodriguez, (1st Cir., July 19, 2016), the U.S. 1st Circuit Court of Appeals agreed with a Puerto Rico federal district court that Puerto Rico police officials could not claim qualified immunity in a suit against them challenging opening of police formation meetings with Christian prayer. When plaintiff, an open atheist, complained to his commander about the prayers, the commander told him to stand aside, and shouted to the police formation that plaintiff was standing apart because "he doesn't believe in what we believe in." When plaintiff filed an administrative complaint, he was reassigned to duties that effectively demoted him.  The court concluded:

However complex the nuances of the Establishment Clause doctrine may be for cases without the direct coercion present in this case, a reasonable officer in March 2012 would have known that appellants' conduct amounted to direct and tangible coercion, a paradigmatic example of an impermissible establishment of religion.

2016 Republican Platform on International Religious Freedom

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the seventh and last in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Here is the Platform section titled Defending International Religious Freedom:

The U.S. Commission on International Religious Freedom, an initiative of Congressional Republicans, has been neglected by the current Administration at a time when its voice more than ever needs to be heard. Religious minorities across the Middle East have been driven from their ancient homelands, and thousands, there and in Africa, have been slaughtered for their faith in what the State Department has, belatedly, labeled genocide. The United States must stand with leaders, like President Sisi of Egypt who has bravely protected the rights of Coptic Christians in Egypt, and call on other leaders across the region to ensure that all religious minorities, whether Yazidi, Bahai, Orthodox, Catholic or Protestant Christians, are free to practice their religion without fear of persecution. At a time when China has renewed its destruction of churches, Christian home-schooling parents are jailed in parts of Europe, and even Canada threatens pastors for their preaching, a Republican administration will return the advocacy of religious liberty to a central place in its diplomacy, will quickly designate the systematic killing of religious and ethnic minorities a genocide, and will work with the leaders of other nations to condemn and combat genocidal acts.

2016 Republican Platform on Individual Conscience in Healthcare

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the sixth in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Here is the Platform section titled Protecting Individual Conscience in Healthcare:

America’s healthcare professionals should not be forced to choose between following their faith and practicing their profession. We respect the rights of conscience of healthcare professionals, doctors, nurses, pharmacists, and organizations, especially the faith-based groups which provide a major portion of care for the nation and the needy. We support the ability of all organizations to provide, purchase, or enroll in healthcare coverage consistent with their religious, moral, or ethical convictions without discrimination or penalty. We support the right of parents to determine the proper medical treatment and therapy for their minor children. We support the right of parents to consent to medical treatment for their minor children and urge enactment of legislation that would require parental consent for their daughter to be transported across state lines for abortion. Providers should not be permitted to unilaterally withhold services because a patient’s life is deemed not worth living. American taxpayers should not be forced to fund abortion. As Democrats abandon this four decade-old bipartisan consensus, we call for codification of the Hyde Amendment and its application across the government, including Obamacare. We call for a permanent ban on federal funding and subsidies for abortion and healthcare plans that include abortion coverage. 

2016 Republican Platform on School Choice and Title IX

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the fifth in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Note that the excerpts continue after the jump. Here are portions of the sections titled Choice in Education, and Title IX:

We support options for learning, including home-schooling, career and technical education, private or parochial schools, magnet schools, charter schools, online learning, and early-college high schools. We especially support the innovative financing mechanisms that make options available to all children: education savings accounts (ESAs), vouchers, and tuition tax credits. Empowering families to access the learning environments that will best help their children to realize their full potential is one of the greatest civil rights challenges of our time. A young person’s ability to succeed in school must be based on his or her God-given talent and motivation, not an address, ZIP code, or economic status. We propose that the bulk of federal money through Title I for low-income children and through IDEA for children with special needs should follow the child to whatever school the family thinks will work best for them.....

2016 Republican Platform on Marriage, Family and Society

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the fourth in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Note that the excerpt continues after the jump. Here is the Platform section titled Marriage, Family and Society:

Foremost among those institutions is the American family. It is the foundation of civil society, and the cornerstone of the family is natural marriage, the union of one man and one woman. Its daily lessons — cooperation, patience, mutual respect, responsibility, self-reliance — are fundamental to the order and progress of our Republic. Strong families, depending upon God and one another, advance the cause of liberty by lessening the need for government in their daily lives. Conversely, as we have learned over the last five decades, the loss of faith and family life leads to greater dependence upon government. That is why Republicans formulate public policy, from taxation to education, from healthcare to welfare, with attention to the needs and strengths of the family.

2016 Republican Platform on Abortion

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the third in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Note that the excerpt continues after the jump. Here is the lengthy Platform section titled The Fifth Amendment: Protecting Human Life:

The Constitution’s guarantee that no one can “be deprived of life, liberty or property” deliberately echoes the Declaration of Independence’s proclamation that “all” are “endowed by their Creator” with the inalienable right to life. Accordingly, we assert the sanctity of human life and affirm that the unborn child has a fundamental right to life which cannot be infringed. We support a human life amendment to the Constitution and legislation to make clear that the Fourteenth Amendment’s protections apply to children before birth.

2016 Republican Platform on Same-Sex Marriage

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the second in a series of posts that focus on Platform provisions dealing with moral values and religious liberty. Here is the Platform section titled Defending Marriage Against an Activist Judiciary:

Traditional marriage and family, based on marriage between one man and one woman, is the foundation for a free society and has for millennia been entrusted with rearing children and instilling cultural values. We condemn the Supreme Court’s ruling in United States v. Windsor, which wrongly removed the ability of Congress to define marriage policy in federal law. We also condemn the Supreme Court’s lawless ruling in Obergefell v. Hodges, which in the words of the late Justice Antonin Scalia, was a “judicial Putsch” — full of “silly extravagances” — that reduced “the disciplined legal reasoning of John Marshall and Joseph Storey to the mystical aphorisms of a fortune cookie.” In Obergefell, five unelected lawyers robbed 320 million Americans of their legitimate constitutional authority to define marriage as the union of one man and one woman. The Court twisted the meaning of the Fourteenth Amendment beyond recognition. To echo Scalia, we dissent. We, therefore, support the appointment of justices and judges who respect the constitutional limits on their power and respect the authority of the states to decide such fundamental social questions.

2016 Republican Platform on Religious Liberty

Yesterday the Republican Party at its national convention adopted its 2016 Platform (full text).  This is the first in a series of posts that will focus on Platform provisions dealing with moral values and religious liberty. Note that the excerpt continues after the jump. Here is the Platform's lengthy section on Religious Liberty:

The Bill of Rights lists religious liberty, with its rights of conscience, as the first freedom to be protected. Religious freedom in the Bill of Rights protects the right of the people to practice their faith in their everyday lives. As George Washington taught, “religion and morality are indispensable supports” to a free society. Similarly, Thomas Jefferson declared that “No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority.” Ongoing attempts to compel individuals, businesses, and institutions of faith to transgress their beliefs are part of a misguided effort to undermine religion and drive it from the public square. As a result, many charitable religious institutions that have demonstrated great success in helping the needy have been barred from receiving government grants and contracts.