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.

Tuesday, August 18, 2015

Comedian Takes On Televangelists Preaching Prosperity Gospel

Comedian John Oliver, host of the HBO late-night show "Last Week Tonight," has gained widespread attention for his Aug. 16 episode (YouTube video of episode) that took on televangelists who preach the Prosperity Gospel.  As reported by the Wall Street Journal, to illustrate the ease of creating a religious organization that can solicit tax-exempt contributions, Oliver filed paperwork to create his own church, Our Lady of Perpetual Exemption. The humorous 20-minute episode argues that some broadcast ministries exploit those who can least afford to donate.

Kentucky Clerk, Continuing Fight Against Issuing Marriage Licenses To Same-Sex Couples, Gets Short Reprieve

Rowan County, Kentucky Clerk Kim Davis is continuing her battle to obtain a religious exemption from the requirement that her office issue marriage licenses to same-sex couples.  As previously reported, last week a federal district court issued a preliminary injunction requiring her to end her resistance, at least as to the two same-sex couples suing her.  Davis' office has been refusing to issue marriage licences to anyone.  Yesterday in Miller v. Davis, (ED KY, Aug. 17, 2015), the district court refused to stay its injunction while an appeal to the 6th Circuit plays out.  The court found that Davis is not likely to succeed on the merits in the appeal nor is she likely to suffer irreparable harm without a stay. However the court did grant a shorter stay. The court said "realizing that emotions are running high on both sides of the debate," it would grant a stay while Davis appeals the denial of a longer stay during the appeal.

The Lexington Herald-Leader reports on these developments and reactions to them:
"Here in Morehead, we have a fairness ordinance (protecting the civil rights of gays and lesbians) that our city council passed unanimously in 2013," said Mary Hargis, a retired state worker holding a sign that read "Obey the law."
"So to have a county official on her own turn around and negate all that progress by making us look like backward, inbred hillbillies, she's just reinforcing all the stereotypes people had about us...
[Thanks to Tom Rutledge for the lead.]

UPDATE: On Aug. 19, the district court, saying the Federal Rules of Appellate Procedure require it to set an expiration date, issued an order (full text) providing that the stay it issued two days earlier will expire on Aug. 31 unless the 6th Circuit orders something else.

Monday, August 17, 2015

Today Is 100th Anniversary of Anti-Semitic Leo Frank Lynching

The Forward reminds us that today is the 100th anniversary of the anti-Semitic lynching of Leo Frank:
Frank was the superintendent of the National Pencil Factory in Atlanta in 1913 when Mary Phagan, a 13-year-old white employee, was murdered. Frank, 29, was an interloper in Georgia: a northerner and a Jew. The police quickly seized on him as a suspect. His trial, conducted in an atmosphere of rampant anti-Semitism and anti-Northern sentiment, led to his conviction and sentencing to death in the summer of 1913....
During his confinement, Frank’s advocates cast enough doubt on his conviction that Georgia’s governor commuted his sentence to life in prison, in June 1915.
It was a wildly unpopular decision in Georgia and not enough to save Frank’s life. He was moved to a rural prison 100 miles away in Milledgeville where, within a matter of weeks, an inmate slit Frank’s throat.
Frank survived the attack. But on the night of August 16, a lynch mob. organized by the leaders of Cobb County where Phagan’s family lived, stormed the prison. They bundled Frank into a car and drove him 150 miles to their county seat of Marietta, where they lynched him at dawn.
For anyone interested in an excellent and exhaustive history of the case, I recommend Steve Oney, And the Dead Shall Rise, (Vintage Books, 2003).

Recent Articles of Interest

From SSRN:

Sunday, August 16, 2015

Recent Prisoner Free Exercise Cases

In Ahmorae v. Davidson County Sheriff's Office, 2015 U.S. Dist. LEXIS 105329 (MD TN, Aug. 11, 2015), a Tennessee federal district court dismissed a Muslim inmate's complaint that on one occasion during Ramadan he was not served dinner.

In Sousa v. Wegman, 2015 U.S. Dist. LEXIS 105420 (ED CA, Aug. 11, 2015), a California federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 85208, June 29, 2015) and allowed an inmate to move ahead with his complaint that  he was repeatedly denied attendance at religious services, holiday celebrations, use of the sweat lodge, and formal recognition for his Mexican Indian faith. UPDATE: The court issued a corrected order on Aug. 13 (2015 U.S. Dist. Lexis 107582).

In Pelayo v. Hernandez, 2015 U.S. Dist. LEXIS 105521 (ED CA, Aug. 11, 2015), a California federal district court dismissed a Christian inmate's complaint that he was not allowed to bring his pocket Bible with him into the dining hall.

In Jaquez v. Birch, 2015 U.S. Dist. LEXIS 105818 (ND OK, Aug. 12, 2015), an Oklahoma federal district court dismissed an inmate's complaint that he had not been able to see or talk with the jail chaplain.

In Frazier v. Cooper, 2015 U.S. Dist. LEXIS 106707 (WD PA, Aug. 13, 2015), a Pennsylvania federal magistrate judge dismissed for failure to exhaust administrative remedies a complaint by an inmate who is a member of the Moorish Science Temple of America that his religious practice was being limited.

In Saif'Ullah v. Cruzen, 2015 U.S. Dist. LEXIS 107490 and in Mohammad-Bey v. Cruzen, 2015 U.S. Dist. LEXIS 107510 (ND CA, Aug. 13, 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.

Investigative Team Appointed To Study East Ramapo NY Schools

According to the New York Times, last Thursday the New York State Education Department appointed a team of three experts led by former New York City School Chancellor Dennis Walcott to study the operations of the struggling East Ramapo school system and offer recommendations. The Times reports:
Last fall, a former federal prosecutor appointed by the state to investigate the district found that the school board, which is dominated by Orthodox Jews, had diverted money from public schools to children who attend local yeshivas, leaving the district in dire financial trouble. The former prosecutor, Henry M. Greenberg, recommended that the state appoint a fiscal monitor with the power to override decisions by the school board. The State Assembly passed a bill in June that would have created such a position, but amid complaints from the East Ramapo school board that it would usurp local control of schools, the bill died in the State Senate.
Mr. Walcott and his team will not have the power to override decisions by the school board. But the state education commissioner, MaryEllen Elia, said in an interview that the department had been in discussions with the school board, and that she hoped the board would be amenable to the experts’ recommendations.
(See prior related posting.)

Saturday, August 15, 2015

DC Circuit: Allocation of Royalties To Religious Broadcasters Was Arbitrary and Capricious

Settling Devotional Claimants v. Copyright Royalty Board, (DC Cir., Aug. 14, 2015), is a suit involving a dispute among television ministries on how to divide among themselves the royalties paid by cable operators for re-transmission of the ministries’ television broadcasts for the years 2000-2003.  Under federal law, cable operators can retransmit programs initially aired on a broadcast station without further permission, but must deposit a royalty amount set by statute.  Each year the Copyright Royalty Judges determine how the royalties should be distributed. In an earlier phase of the proceedings the Judges determined the the total amount that should be allocated to devotional-religious programs. This phase of the proceedings involved the distribution of that amount among two competing groups-- a group of 23 ministries whose copyright broadcasts were distributed (the Settling Devotional Claimants) and a second group (Independent Producers Group) that claimed to represent 7 other ministries, but was held by the Royalty Judges to properly represent only four others. The Royalty Judges rejected the methodologies urged by both parties and instead used its own approach to allocate the royalties between the two groups.  The Court of Appeals held that the Royalty Judges' allocations were arbitrary and capricious, saying in part:
[The Devotional Claimants]  argue that, after the Royalty Judges ... simply split the difference between the two parties, and that decision was arbitrary and capricious and unsupported by substantial evidence. We agree with the Devotional Claimants..... King Solomon was not subject to the Administrative Procedure Act; the Royalty Judges are. 

Friday, August 14, 2015

DC Circuit Rejects Establishment Clause Challenge To ACA Religious Conscience Exemption

In Cutler v. U.S. Department of Health and Human Services, DC Cir., Aug. 14, 2015), the Court of Appeals for the D.C. Circuit rejected an Establishment Clause challenge to the religious conscience exemption in the Affordable Care Act.  The ACA exempts from the individual mandate members of traditional religious groups such as the Amish and Mennonites who are conscientiously opposed to acceptance of health benefits and whose sect makes provision for their dependent members. Plaintiff Jeffrey Cutler objected for personal, not religious, reasons to purchasing insurance that complies with ACA requirements. The court said in part:
The religious exemption in the Affordable Care Act, like its counterpart in the Social Security Act, accommodates religion by exempting all believers whose faith system provides an established, alternative support network that ensures individuals will not later seek to avail themselves of the federal benefits for which they did not contribute. Cutler is correct that the Affordable Care Act withholds a similar exemption for non-believers. But the Supreme Court has repeatedly held that “the government may accommodate religious practices without violating the Establishment Clause....

Suit Says Florida Will Not Issue Correct Birth Certificates To Married Lesbian Couples

A lawsuit was filed in federal district court in Florida yesterday challenging the birth certificate policy of Florida's Bureau of Vital Statistics.  The complaint (full text) in Chin v. Armstrong, (ND FL, Aug. 13, 2015), alleges:
When a child is born to a woman who is married to another woman ... the Bureau ... will not issue accurate birth certificates listing both parents.... Instead, the Bureau will issue only a certificate that falsely indicates that the child has only one parent and that omits the mother’s spouse as the child’s second parent.
The suit contends that this infringes plaintiffs' fundamental right to marry as well as denying them equal protection of the laws. Equality Florida Action issued a press release on the filing of the lawsuit.