HHS Rules That California Did Not Violate Weldon Amendment

Yesterday the Office for Civil Rights of the Department of Health and Human Services (OCR) issued a letter (full text) responding to complaints that the California Department of Managed Health Care violated the Weldon Amendment when it directed several health insurance companies to amend their plan documents to remove coverage limitations and exclusions for elective abortions. Subsequently California granted an exemption to one of the companies to allow it to offer plans that exclude abortion coverage to religious employers. The complaints were filed by churches, a religious organization, a church-run school and employees of a religiously-affiliated university.  In its Findings, OCR said in part:

By its plain terms, the Weldon Amendment's protections extend only to health care entities and not to individuals who are patients of, or institutions or individuals that are insured by, such entities.... Here none of the seven insurers that received the CDMHC letter ... objected to providing coverage for abortions..... As a result, there is no health care entity protected under the statute that has asserted religious or moral objections to abortion and therefore there is no covered entity that has been subject to discrimination within the meaning of the Weldon Amendment.

... A finding that CDMHC has violated the Weldon Amendment might require the government to rescind all funds appropriated ... to the State of California.... HHS' Office of General Counsel, after consulting with the Department of Justice, has advised that such a rescission would raise substantial questions about the constitutionality of the Weldon Amendment.

Los Angeles Times reports on OCR's ruling.

Trump Meets With Evangelical Leaders In New York

Washington Post has a lengthy account of Donald Trump's meeting in New York yesterday with a large group of Christian conservative leaders. Here are some excerpts from the article:

Donald Trump won a standing ovation from hundreds of Christian conservatives who came to New York City on Tuesday with a somewhat skeptical but willing attitude toward a man who has divided their group with comments on women, immigrants and Islam. In his comments, the presumptive GOP presidential nominee said he would end the decades-old ban on tax-exempt groups’ — including churches — politicking, called religious liberty “the No. 1 question,” and promised to appoint antiabortion Supreme Court justices....

Throughout the talk Trump emphasized that America was hurting due to what he described as Christianity’s slide to become “weaker, weaker, weaker.” He said he’d get department store employees to say “Merry Christmas” and would fight restrictions on public employees, such as public school coaches, from being allowed to lead sectarian prayer on the field....

While polls show that the majority of evangelicals — who make up about a fifth of the country — are favorable toward Trump, his campaign has bitterly divided Christian conservatives in general. Those who oppose him do so strongly, and later Tuesday, a separate group of conservatives — including leading evangelicals — were meeting to strategize about a possible third candidate.... 

“This meeting marks the end of the Christian Right,” Michael Farris, a national homeschooling pioneer and longtime figure of the Christian Right, wrote on his Facebook page Tuesday.  He noted that he was present at the first gathering of the Moral Majority in 1980: “The premise of the meeting in 1980 was that only candidates that reflected a biblical worldview and good character would gain our support. … Today, a candidate whose worldview is greed and whose god is his appetites (Philippians 3) is being tacitly endorsed by this throng. … This is a day of mourning.”

Also yesterday the Trump campaign announced a new 25-member Evangelical Executive Advisory Board.  The Board includes Michele Bachmann, James Dobson, Jerry Falwell and Ralph Reed.  A larger Faith and Cultural Advisory Committee will be announced later this month.  [Thanks to Scott Mange for the lead.]

UPDATE: Here is a full transcript of Trump's meeting.

4th Circuit Revives Some Claims In Challenge To School District's Graduation Practices

American Humanist Association v. Greenville County School District, (4th Cir., June 21, 2016), is a challenge to the graduation ceremony prayer policy of the Greenville County, South Carolina school district, as well as to its practice of holding some graduation ceremonies at a religious chapel on a local college campus.  In a largely procedural ruling, the U.S. 4th Circuit Court of Appeals vacated in part the district court's dismissal of the case.  On the challenge to graduation prayer, the court held that because the individual plaintiffs named in the lawsuit had moved out of state while the appeal was pending so their children no longer attended school in the district, the suit was moot as to them.  However it remanded for further discovery to determine whether the organizational plaintiff, American Humanist Association, continues to have standing because of the interests of other of its members.

The appeals court agreed with the district court that the claim for injunctive relief to bar holding of future graduation ceremonies in religious venues should be dismissed because while the case was still pending in district court plaintiffs moved within the district to schools that had never used religious venues for school events.  However the appeals court held that plaintiffs continued to have standing to pursue their claim for nominal damages because of past use of the religious chapel for graduation. American Humanist Association issued a press release announcing the decision. (See prior related posting.) Greenville News reports on the decision.

FLDS Leader Flees While On Bond Awaiting Trial

Lyle Jeffs, a leader of the polygamous FLDS Church, has fled while out on bond awaiting trial on charges of conspiracy to commit food stamp fraud and conspiracy to commit money laundering.  As reported by AP and KUTV News, after being denied bond several times as a potential flight risk, earlier this month Jeffs was finally released in home confinement on the condition he wear a GPS monitor and leave the Salt Lake City house where he was staying only for work, doctors' appointments and religious services.  A warrant for Jeffs arrest was issued Sunday.

Court Denies Preliminary Injunction Against Mississippi's Conscience Protection For County Clerks

In Alford v. Moulder, (SD MS, June 20, 2016), a Mississippi federal district court denied a preliminary injunction in a suit by a same-sex couple who are challenging Mississippi's recently enacted Freedom of Conscience Law, HB 1523.  The suit specifically challenges provisions in the law that allow county clerks to recuse themselves on religious or moral grounds from issuing marriage licences. (See prior posting.) The court held that plaintiffs failed to show that injury to them is "imminent" since they merely allege that they plan to apply for a marriage license sometime within the next three years.  Plaintiffs immediately filed a Motion for Reconsideration.

Meanwhile, the same judge heard oral arguments yesterday in a separate case that is also challenging HB 1523.  AP reports that in this suit, plaintiffs are arguing that provisions allowing clerks to recuse themselves in favor of another employee issuing the license could create public humiliation for a same-sex couple when they apply for a license.  "There can't be separate-but-equal marriage. There can't be Jim Crow kind of marriage," the couples' attorney told the court.  Four separate cases challenging HB 1523 have been filed, and the judge will hear oral arguments in the remaining two later this week.

New York Legislature Punts On Extending Statute of Limitations For Child Sex Abuse Claims

As reported by the New York Daily News, the New York legislature adjourned for the year early last Saturday morning without taking action on a pending bill, the Child Victims Act, that would have extended the statute of limitations for child sexual abuse claims by 5 years, created a 6-month window for currently stale claims, and treated suits against public and private entities alike. Bill Donohue, president of the Catholic League for Civil and Political Rights, said in a statement posted yesterday that he is proud of his organization's role in preventing enactment of the law, arguing in part:

If the statute of limitations were lifted on offenses involving the sexual abuse of minors, the only winners would be greedy and bigoted lawyers out to line their pockets in a rash of settlements. The big losers would be the poor, about whom the attorneys and activists care little: When money is funneled from parishioners to lawyers, services to the needy suffer.

New Report on Islamophobia In the United States

Yesterday the Council on American-Islamic Relations and the Center for Race and Gender at UC Berkeley released a report titled Confronting Fear: Islamophobia and its Impact in the U.S. 2013-2015.  The report suggests four priority areas in creating a national strategy to further American understanding of Islam:

1. ... [E]nhancing Muslim involvement in the issues of other domestic communities which face challenges to full and equal protection and participation in society.

2. Establishing in the public conscience that Islamophobia is identical to other forms of prejudice and undermines American ideals.

3. Empowering a diverse range of legitimate voices to persuasively contribute, particularly in the news media, to the views of Islam and American Muslims within public dialogue.

4. Enhancing community ability to impact U.S. political and policy life through public service, voting, and meaningful political contributions.

Examining the impact of Islamophobia in the United States, the report finds:

The U.S.-based Islamophobia network’s inner core is currently comprised of at least thirty-three groups whose primary purpose is to promote prejudice against, or hatred of, Islam and Muslims.... Between 2008 and 2013, inner-core organizations had access to at least $205,838,077 in total revenue. 

Paper Calls Out Anti-Semitic Harassment of Journalists

The Forward today is calling attention to the continuing anti-Semitic harassment on social media (mainly Twitter) of Jewish journalists (or those perceived to be Jewish).  The anti-Semitic messages have often come in response to journalists' coverage of Donald Trump's campaign. A June 7 Washington Post piece has examples. The Forward says:

Online bullying is a non-partisan activity — both the far left and the far right are quite good at it — but the virulent anti-Semitism many journalists experience today comes from what is known as the “alt-right,” shadowy white supremacists who mainly hide behind the anonymity of Twitter to traffic in horrible Holocaust imagery and directly threaten Jews.

Many of these threats draw on connections with Trump’s presidential campaign, using Trump’s image and targeting his critics, including several of our regular writers. Even if you don’t believe that the presumed Republican standard bearer has stoked this cyber-hate (which is a generous assumption), you have to admit that he appears to have done nothing to minimize or condemn it.

As a symbolic protest, The Forward says it will refuse for 24 hours (starting tomorrow) to publish anything mentioning Trump's name or his campaign.

Israeli Court Tells City To Remove Religiously Inspired Signs Directing Women To Wear Modest Clothes

In Israel yesterday, the Jerusalem District Court ordered the mayor of the city of Beit Shemesh to remove signs posted around the city by ultra-Orthodox Jews instructing women to wear long sleeves and long skirts. Other signs tell women to keep off sidewalks near synagogues and yeshivas where men congregate.  According to today's Haaretz, the suit seeking removal of the signs was filed three years ago on behalf of four Orthodox women who live in Beit Shemesh. They argue that the signs encourage violence and harassment against women who ignore them.  A Magistrate's Court ruled in the women's favor last year (see prior posting), but the city has ignored the ruling. So plaintiffs went to a higher court which has now given the city's mayor three weeks to remove the signs, and told the city to act more forcefully in the future to prevent new signs from going up.

Donald Trump On Profiling of Muslims

Yesterday in a phone interview with program host John Dickerson on CBS's Face the Nation, presumptive Republican nominee Donald Trump spoke about the possibility of profiling Muslims in the wake of the attack in Orlando on a gay nightclub. Here is an excerpt from the full transcript:

DICKERSON: When you talk about political correctness, should a Muslim buying ammunition and weapons get extra scrutiny?

TRUMP: I don't know about that.

I think, right now, we have some pretty big problems. And there are problems coming out of radical Islamic -- the radical Islamic groups. You have a very, very strong group of people that is radical Islamic, and that seems to be a problem.

DICKERSON: And you said you would check respectfully the mosques. How do you respectfully check a mosque?

TRUMP: Well, you do as they used to do in New York, prior to this mayor dismantling.

By the way, if you go to France right now, they're doing it in France. In fact, in some instances, they are closing down mosques. People don't want to talk about it. People aren't talking about it. But look at what they're doing in France. They are actually closing down mosques.

DICKERSON: Can I ask you just a bottom-line question before we move on? You like to speak plainly. In December, we talked, and you said there possibly should be profiling. Just as a bottom line here, are you talking about increasing profiling of Muslims in America?

TRUMP: Well, I think profiling is something that we're going to have to start thinking about as a country. And other countries do it.

And you look at Israel and you look at others, and they do it. And they do it successfully. And I hate the concept of profiling. But we have to start using common sense, and we have to use -- we have to use our heads.

I see people that -- and I have seen it recently. We had a case where very much in my case, where we had -- we had tremendous numbers of people coming into a speech I was making. And people that obviously had no guns, had no weapons, had no anything, and they were being -- they were going through screening.

And they were going through the same -- the same scrutiny, the absolute same scrutiny as somebody else that looked like it could have been a possible person. So, we really have to look at profiling. We have to look at it seriously.

And other countries do it. And it's not the worst thing to do. I hate the concept of profiling, but we have to use common sense. We're not using common sense.

Recent Articles and Books of Interest

From SSRN:

• Debbie Kaminer, Religious Accommodation in the American Workplace: The Impact of the Supreme Court's Decision in EEOC v. Abercrombie & Fitch, (June 10, 2016).
• Elizabeth Shakman Hurd, Review of Beyond Church and State by Matthew Scherer, (Augustinian Studies 47:1 (2016) 114–118).
• Danieli Evans, Religious Objections to the Death Penalty after Hobby Lobby, (Stanford Law & Policy Review, Vol. 27, No. 1, 2015).
• Abner S. Greene, A Secular Test for a Secular Statute, (University of Illinois Law Review, Vol. 34, 2016).
• Mark Walters, Challenging Orthodoxy: Towards a Restorative Approach to Combating the Globalization of Hate, (The Globalization of Hate: Internationalizing Hate Crime, Chapter 18, 2016).
• Jennifer Schweppe & Mark Walters, Hate Crimes: Legislating to Enhance Punishment, (Oxford Handbooks Online, Criminology and Criminal Justice, 2015).
• Mark Walters, Readdressing Hate Crime: Synthesizing Law, Punishment and Restorative Justice, (Hate, Politics, Law, Oxford University Press, Forthcoming).

From SmartCILP:

• Symposium: Religious Accommodation in the Age of Civil Rights. 9 Harvard Law & Policy Review 1-193 (2015).
• Scott Titshaw, Same-Sex Spouses Lost in Translation? How to Interpret “Spouse” in the E.U. Family Migration Directives, 34 Boston University International Law Journal 45 (2016).

Recent Books:

• John Witte, Jr. and Joel A. Nichols, Religion and the American Constitutional Experiment, Fourth Edition, (Oxford Univ. Press, April 2016).
• Danielle Keats Citron, Hate Crimes in Cyberspace, (Harvard Univ. Press, May 2016).
• Ferruh Yilmaz, How the Workers Became Muslims-- Immigration, Culture, and Hegemonic Transformation in Europe, (University of Michigan Press, 2016).
• Jonathan Fox, The Unfree Exercise of Religion-- A World Survey of Discrimination against Religious Minorities, (Cambridge Univ. Press, Feb. 2016).
• Norman Doe, Christian Law-- Contemporary Principles, (Cambridge Univ. Press, Nov. 2015).

Indian Court Sentences 24 For Roles In 2002 Gujarat Religious Riots

On Friday, a court in India imposed sentences on the 24 defendants who were convicted earlier this month in the 2002 killings of 69 Muslims during religious riots in Gujarat state. AFP reports that eleven of the Hindu defendants were sentenced to life in prison for their part in the massacre at the Gulbarg Society housing complex.  The court sentenced twelve others to seven years in jail, and the remaining defendant to ten years for rioting and arson.

Recent Prisoner Free Exercise Cases

In Davis v. Davis, (5th Cir., June 14, 2016), the 5th Circuit , while affirming in part, vacated and remanded a district court's refusal to allow Native American inmates to wear long hair or kouplocks. The district court had not evaluated plaintiffs' claims in light of the specific characteristics and security risks posed by each inmate.

In Rouser v. White, (9th Cir., June 17, 2016), the 9th Circuit, in a 2-1 decision, held that the district court had abused its discretion in terminating a 2011 consent decree that allowed a Wiccan inmate to practice his religion in various ways.

In Epps v. Hein, 2016 U.S. Dist. LEXIS 73906 (SD GA, June 6, 2016), a Georgia federal magistrate judge dismissed, but with leave to amend to allege a sincere religious belief, an inmate's complaint that he was denied a kosher Rastafarian diet.

In Ahdom v. Etchebehere, 2016 U.S. Dist. LEXIS 76149 (ED CA, June 9, 2016), a California federal district court permitted a Muslim inmate to move ahead under the free exercise clause with his complaint that he had been denied religious Ramadan Halal meals for a period of six days.

In Parker v. Shepard, 2016 U.S. Dist. LEXIS 77854 (SD GA, June 15, 2016), a Georgia federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 78216, April 18, 2016)  and denied a preliminary injunction to a Rastafarian inmate who wished to wear long hair and dreadlocks.

In Muhammad v. Crews, 2016 U.S. Dist. LEXIS 78744 (ND FL, June 15, 2016), a Florida federal district court, adopting a magistrate's recommendations in part, dismissed a number of claims by a Muslim inmate but remanded for evaluation under a proper framework his claim that he was denied a religious diet during a 4-year period.

In Owens v. Kernan, 2016 U.S. Dist. LEXIS 78854 (ED CA, June 16, 2016), a California federal magistrate judge dismissed a claim by an inmate serving a life sentence that denial of a conjugal visit to consummate his marriage violates his rights under RLUIPA.

Suit Seeks To Have Archbishop Sheen's Remains Moved To Illinois

Last Monday, the niece of the late Archbishop Fulton J. Sheen filed suit in a New York state trial court seeking to have Sheen's body, which is now buried in St. Patrick's Cathedral in New York City, disinterred and moved to a cathedral in Peoria, Illinois.  Sheen was ordained as a priest in Peoria.  He was the host of a widely watched award-winning television show titled Life Is Worth Living broadcast in the 1950's. Sheen served as Auxiliary Bishop of New York from 1951 to 1966.  He died in 1979.

Sheen is about to be beatified by the Vatican-- a step toward Sainthood.  The Beatification Ceremony will take place in Peoria since Peoria's Bishop Daniel Jenky was the Promoter for the Cause of Sainthood for Sheen.  According to the New York Times, New York church officials object to moving the remains, saying that it was Sheen's personal wish to be permanently buried beneath the high altar of St. Patrick’s Cathedral. They are apparently willing however to allow Sheen's remains to be moved temporarily to Peoria for the Beatification Ceremony, but then returned to New York.  The complaint (full text attached to press release) in Cunningham v. Trustees of St. Patrick's Cathedral, (Sup. Ct. NY County, filed 6/13/2016), contends that:

if Archbishop Sheen knew during his lifetime that he would be declared a Saint of the Roman Catholic Church that it would have been his wish that his remains be interred in St. Mary's Cathedral in Peoria.... St. Mary's was the church he attended with his family as a youth and where he made his first Holy Communion.

(See prior related posting.) As an aside, perhaps reflecting a deficient spell check program, the complaint (as opposed to the press release attached to it) consistently refers to Sheen's upcoming "Beautification" rather than "Beatification."

Canada Denies Entry To U.S. Mohel

Canadian border officials last month refused entry into Canada to a Detroit-based mohel who was crossing into neighboring Windsor in order to perform a Jewish ritual circumcision for a family in Windsor.  According to a June 8 report by the Detroit Jewish News, Dr. Craig Singer (a physician, as well as a mohel certified by Hebrew Union College) was told by border officials that he would need a permit as a temporary foreign worker, and that he could be prosecuted for performing a surgical procedure in Canada without proper authorization. Canada's Immigration and Refugee Protection Regulations, Paragraph 186(l) provide that a foreign national may work in Canada without a work permit "as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling."  Enforcement guidelines provide:

Persons seeking entry under the authority of R186(l) should be able to provide documentation to support their request for entry that addresses: the genuineness of the offer of employment of the religious denomination that seeks to employ them; and their ability to minister to a congregation under the auspices of that religious denomination.

House Holds Hearings On Global Religious Freedom

Yesterday a subcommittee of the House Foreign Affairs Committee held hearings titled The Global Religious Freedom Crisis and Its Challenge to U.S. Foreign Policy.  Witnesses from the State Department and the U.S. Commission on International Religious Freedom testified.  Transcripts of their testimony are available from the Committee's website.

Suit Between Indian Tribes Challenges Building Site For History Center

Non Doc reported yesterday on a federal court lawsuit filed in May by the Caddo Nation against the Wichita and Affiliated Tribes challenging the construction of a History Center by the Wichitas in western Oklahoma on land held jointly by the Wichita Tribe, Caddo Nation and Delaware Tribe.  A Caddo press release has further background.  The History Center is being built on a 71-acre parcel below a hill on which the Riverside Indian School is located.  The boarding school has been in operation since 1872 and was attended by Caddo students, as well as students from other tribes.  Students who died at the school were buried near it.  The Wichita say that all the graves are by the school at the top of the hill, but in the lawsuit members of the Caddo Nation contend that there are also graves at the site of the History Center below. According to Non Doc:

The Caddo filed a lawsuit May 25 seeking to halt construction for two weeks while the tribe conducted archeological work with ground-penetrating radar, or GPR, which can identify potential artifacts or features without the need to disturb a site by digging.

A U.S. District Court judge ordered a temporary stop to work at the site, one and a-half miles north of Anadarko, pending a hearing. The order was lifted May 31, and the Wichita resumed work. The Caddo then filed an appeal on June 7 to the 10th U.S. Circuit Court in Denver. No hearing date has been set at this time.

UN Commission Says ISIS Has Committed Genocide Against Yazidis

Yesterday, the International Commission of Inquiry on the Syrian Arab Republic established by the United Nations Human Rights Council issued a report (press release) concluding that ISIS' actions against the Yazidis constitutes genocide and amounts to crimes against humanity and war crimes. The 41-page report (full text) includes a Summary section which reads in part:

ISIS has sought to destroy the Yazidis through killings; sexual slavery, enslavement, torture and inhuman and degrading treatment and forcible transfer causing serious bodily and mental harm; the infliction of conditions of life that bring about a slow death; the imposition of measures to prevent Yazidi children from being born, including forced conversion of adults, the separation of Yazidi men and women, and mental trauma; and the transfer of Yazidi children from their own families and placing them with ISIS fighters, thereby cutting them off from beliefs and practices of their own religious community, and erasing their identity as Yazidis. The public statements and conduct of ISIS and its fighters clearly demonstrate that ISIS intended to destroy the Yazidis of Sinjar, composing the majority of the world’s Yazidi population, in whole or in part....

While noting States’ obligations under the Genocide Convention, the Commission repeated its call for the Security Council to refer urgently the situation in Syria to the International Criminal Court, or to establish an ad hoc tribunal with relevant geographic and temporal jurisdiction.

AP has more on the report.

In Liberia, Court Orders Sale of Seminary To Satisfy Amounts Owed To Fired President [UPDATED]

All Africa on Wednesday reported on the latest installment in the litigation in Liberia between Dr. Lincoln S. Brownell, the former president of Baptist Theological Seminary, and the Seminary.  Brownell was removed as president in 2007.  In 2013 he brought suit in Liberia's National Labour Court seeking damages for his removal, and the court awarded him $300,000 (US). In 2014, the Labour Court ordered the Seminary shut down, and now the Labour Court has issued a writ of execution on the property of the Seminary so Brownell can obtain the amounts due him under the court award. The writ calls for the sale of the real and personal property of the Seminary to realize the $300,000.  The writ calls for the arrest of the president of the Seminary if property cannot be found.

UPDATE: Front Page Africa (June 19) reported that Liberia's Supreme Court has issued a writ of prohibition preventing the sale of Seminary properties after evidence was introduced that the $300,000 had been paid.  The court immediately sent a team of sheriffs to reopen the Seminary.

Obama Meets At White House With Dalai Lama

President Obama met yesterday in the Map Room of the White House with the Dalai Lama, spiritual head of the Tibetan Buddhists and until his retirement in 2011 head of the exiled Tibetan government.  As reported by CNN, the meeting angered the Chinese who see the Dalai Lama as the head of a separatist movement.  In a statement (full text) issued after the meeting, the White House said:

The President and the Dalai Lama discussed the situation for Tibetans in the People’s Republic of China, and the President emphasized his strong support for the preservation of Tibet’s unique religious, cultural, and linguistic traditions and the equal protection of human rights of Tibetans in China....

... [T]he President reiterated the longstanding U.S. position that Tibet is a part of the People’s Republic of China, and the United States does not support Tibetan independence.  The Dalai Lama stated that he is not seeking independence for Tibet and hopes that dialogue between his representatives and the Chinese government will resume.