Posted on by Marc O. DeGirolami

Wheaton College Case Against HHS Dismissed on Standing and Ripeness Grounds

The U.S. District Court for the District of Columbia has dismissed Wheaton College’s complaint against Kathleen Sebelius and the Department of Health and Human Services on standing and ripeness grounds.  As to standing, the court held that Wheaton’s allegations only made out claims of “future possible injury” because HHS has informed Wheaton that it qualifies for the safe harbor provisions of the mandate, and because an enforcement action by HHS within the safe harbor is neither imminent nor likely.  As to ripeness, the court said: “Because they are in the process of being amended, the preventive services regulations are by definition a tentative agency position,” and therefore unfit for adjudication.

The case is Wheaton College v. Sebelius, 2012 WL 3637162 (D.D.C. Aug. 24, 2012).

Posted on by Mark Movsesian

District Court Dismisses Muslims’ Suit Against FBI Under State Secrets Doctrine

A federal district court in California ruled Tuesday that the state secrets doctrine precludes a religious-discrimination lawsuit local Muslims had filed against the FBI. Plaintiffs alleged that the FBI had violated their constitutional and civil rights by conducting “an indiscriminate ‘dragnet'” that “gathered information about them and other innocent Muslim Americans in Southern California” solely on the basis of their religion. Specifically, they alleged that the FBI had employed a covert operative to conduct surveillance of mosques and Muslims in southern California. The court ruled that litigation of plaintiffs’ claims would “require or unjustifiably risk disclosure of secret and classified information regarding the nature of the FBI’s counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies.” The court made its decision, with obvious reluctance, on the  basis of Attorney General Eric Holder’s formal invocation of the state secrets privilege and the court’s own “skeptical” examination of the FBI’s public and classified, ex parte, submissions. Plaintiffs, represented by the ACLU, plan to appeal. The case is Fazaga v. FBI, 2012 WL 3327092 (C.D. Cal., Aug. 14, 2012).

Posted on by Marc O. DeGirolami

Eleventh Circuit Remands Ten Commandmants Case on Standing Grounds

The U.S. Court of Appeals for the Eleventh Circuit has remanded a case to the district court involving a 5-foot-tall monument of the Ten Commandments which sits beside an entrance to the Dixie County Courthouse in Florida.  The plaintiff, a North Carolina resident who was considering whether to purchase property in the County, made his way to the Courthouse and saw the monument.  As the Eleventh Circuit put it, “the experience of seeing the statue was a negative one” (though after the shock had passed, he was able to recover and proceed with his business).

The plaintiff never did purchase any land in the County, but the ACLU used him in an attempt to get itself standing to sue the County for violating the Establishment Clause.  Standing demands a concrete injury.  When deposed, the plaintiff indicated that the reason he did not purchase property in the County was due to “the display of the monument” and because “I found other things I was offended by.”  A later affidavit by the plaintiff indicates instead that the monument was the but-for cause of his decision not to purchase property.  The district court denied a motion for summary judgment by the County on the issue of standing, and granted the ACLU’s motion for summary judgment on the merits.

For the Eleventh Circuit, the issue seems to be whether the plaintiff had standing to sue, and the remand has to do with an evidentiary question about the reasons for the plaintiff’s decision not to purchase property in the County.  The initial deposition and later affidavit seem to be in some tension (the Court called the affidavit “suspect, given that it seems designed to strengthen [plaintiff’s] standing claim”).  By granting the ACLU’s summary judgment motion, the district court improperly resolved a disputed factual question.

Judge Edmonson filed a separate opinion concurring in part and dissenting in part, arguing that the case should be dismissed now because plaintiff has failed to meet the standing requirement.  He would have relied on the “clear and unambiguous answers” in the deposition, not the later prepared affidavit, to dismiss the case.  Judge Edmonson notes that the “other things” that offended the plaintiff (as stated in the deposition) included: (1) a cartoon in the County assessor’s office depicting an American soldier telling a French official “Well, you didn’t make me show a Visa when I landed in Normandy”; (2) a writing in the assessor’s office that said something like “the only two who gave blood for you or gave their souls for you were Jesus and the veterans”; and (3) a website that included the words “Patriot Properties” and “Dixie” in its web address, which an employee in the assessor’s office recommended that plaintiff visit if he had more questions.  Plaintiff also stated that he was discomfited by the fact that the locals were “a bit cold.”

The case is ACLU of Florida, Inc. v. Dixie County, Florida (August 15, 2012).

Posted on by Mark Movsesian

DC Court of Appeals: Ministerial Exception Does Not Bar Minister’s Breach of Contract Suit Against Church

Here’s a reminder that, even after Hosanna-Tabor, the ministerial exception does not bar all lawsuits clergy bring against church employers. The DC Court of Appeals has allowed a minister’s breach of contract claim against her former congregation to go forward, notwithstanding the congregation’s claim of immunity. The Rev. Deloris Prioleau, an ordained AME pastor, had a series of one-year employment contracts with the Cornerstone AME Church in DC. When Cornerstone failed to pay Prioleau $39,000 it owed her on her final contract, she brought a breach of contract action. Last week, the DC Court of Appeals ruled that the action could proceed under the “neutral principles of law” approach. Prioleau’s suit, the court said, appeared to be “a straightforward contract case, uncomplicated by ecclesiastical considerations.” Moreover, the ministerial exception did not apply. Prioleau had not challenged Cornerstone’s “authority to hire, to fire, or to assign her duties” and did not seek “reinstatement.” (Oddly, the court did not discuss Hosanna-Tabor itself). The court ended its opinion with a warning, however:  “if it becomes apparent … that this dispute does in fact turn on matters of doctrinal interpretation or of church governance, the trial court may grant summary judgment to avoid ‘excessive entanglement with religion.'” The case is Second Episcopal District African Methodist Episcopal Church v. Prioleau, 2012 WL 3243190 (D.C. Court of Appeals, Aug. 9, 2012).

Posted on by Marc O. DeGirolami

District Court: Prohibiting Religious Groups From Feeding the Homeless in Park Likely to Violate Pennsylvania RFRA

Here’s an interesting case from Philadelphia involving the religious mission to feed the homeless.  The City of Philadelphia enacted a local ordinance prohibiting the distribution of food free of charge to three or more people anywhere in the Fairmont Park System (picnics for individual families, school trips, and so on, as well as special events, were exempted from the ordinance).  The City’s reasons for the ordinance had to do with civil order, sanitation, and also an asserted dignitarian interest on behalf of the homeless.  Several Christian religious groups had for decades distributed food to the homeless in the parks, but the mayor wanted these programs moved indoors.  A temporary relocation effort of one of the religious groups’ food-sharing programs resulted in a drastic reduction in the number of homeless people who partook of the food-sharing services.

Plaintiffs sought a preliminary injunction prohibiting the City from enforcing the ordinance, alleging that the ordinance violated their rights under the Pennsylvania Religious Freedom Protection Act (PRFPA), which is essentially Pennsylvania’s version of the federal Religious Freedom Restoration Act, as well as the First Amendment.  Readers will know that RFRA (as well as PRFPA) reinstated the interest-balancing test which preceded Employment Division v. Smith.  (One interesting feature of PRFPA is that it requires “clear and convincing evidence” as its standard for the “substantial burden” component).

The Court granted the preliminary injunction on PRFPA grounds (it avoided the constitutional issue).  It held that the plaintiffs (1) have a sincere belief that it is their religious obligation to “provide sustenance to the poor and needy” (and, added the Court, “Plaintiffs are not unique in this respect.  Acts of charity are central to Christian worship”); (2) the ordinance constitutes a “substantial burden” on the free exercise of plaintiffs’ religion; (3) the dignitarian “compelling interest” offered by the City was “difficult to comprehend”: “I am at a loss to understand how taking choice away from the homeless advances their dignity”; (4) even if reducing litter and other waste is a “compelling interest” (about which the Court expressed some skepticism), the City had not used the least restrictive means to achieve that interest (portable restrooms, trash compactors, additional maintenance staff, and other methods were raised by the Court).

One noteworthy item, which may have various broader applications.  In response to the City’s claim that it did not burden the plaintiffs’ free exercise because it did not impose “restrictions upon praying or preaching or reading the Gospel or engaging with the homeless [in the Park],” the Court said:

What defendants fail to appreciate is that to plaintiffs, sharing food with the poor is as much a form of religious worship as is prayer, preaching, or reading the Bible . . . . But defendants’ argument is not persuasive for an additional and more fundamental reason. Essentially, defendants have assumed the authority to ascribe [to] some of plaintiffs’ religious activities more religious significance than others, irrespective of the significance that plaintiffs themselves ascribe to their own religious activities. Defendants compound this error by offering to grant Rev. Little a limited exception for the food and drink she uses during her Communion service, which they characterize as a “core component of a religious service,” but not for the food Rev. Little shares with the homeless after the service despite the fact that Rev. Little considers this food an ongoing representation of the Communion observed during the service . . . . It is no more appropriate for defendants to “presume to determine the place of a particular belief in a religion” than it would be for me to do so.
 
The case is Chosen 300 Ministries, Inc. v. City of Philadelphia, 2012 WL 3235317 (E.D. Pa. Aug. 9, 2012). 
 
Posted on by Mark Movsesian

1st Circuit Applies Neutral Principles Approach in Church Copyright Dispute

Here’s an unusual church property dispute. The Holy Transfiguration Monastery in Brookline, Massachusetts brought a copyright infringement action against a former monk who had posted on his website English-language translations of ancient Christian texts the monastery had prepared. The former monk, now an archbishop in a different Christian communion, raised a number of copyright defenses, including fair use and non-originality. Last week, the First Circuit rejected all the archbishop’s defenses and ruled in favor of the monastery. The copyright issues are quite dense and apparently of real importance to copyright lawyers. For CLR Forum readers, though, the case is significant for its implications for church autonomy doctrine. The archbishop argued that the monastery’s statutes gave title to the texts to the monastery’s then-parent body, the Russian Orthodox Church Outside Russia, or ROCOR. (The monastery has since ended its affiliation with ROCOR). Using the neutral principles approach, the First Circuit rejected this argument. Applying “the Monastic Statutes’ plain terms,” and “without treading upon religious doctrine, church governance, and ecclesiastical laws,” title to the texts rested in the monastery, not ROCOR. The case is Society of the Holy Transfiguration Monastery, Inc. v. Gregory, 2012 WL 3125120 (1st Cir., Aug. 2, 2012).

Posted on by Mark Movsesian

UK Court: Child of Divorced Parents May Convert from Judaism to Christianity Despite Mother’s Objections

What a wrenching — and in its implications for how civil courts understand minority religious traditions, fascinating — case. An English judge has ruled that a 10-year old Jewish girl may be baptized over the objections of her mother, who wishes the girl to remain Jewish. The girl’s father and mother divorced two years ago. Both parents were Jewish, but after the divorce the father converted and joined the Church of England. The parents shared custody of the girl, and, on the weekends he had custody, the father took the girl with him to church. The girl eventually told him she wished to be baptized; unsure of her commitment, he put her off. The girl then approached a minister on her own and also raised the issue with her mother, who quickly filed a court application to stop the process.

In a judgment made public last week, the judge decided that the girl’s interests were best served by allowing baptism to go forward. As in any such case, the judge considered many factors, including the fact that the father and mother had not been observant Jews during the marriage; that since the divorce the mother had neither taken the  girl to synagogue nor arranged for Jewish religious instruction; that the father had not, as the mother and all four grandparents alleged, “brainwashed” the girl; and that baptism, which in the Anglican tradition is only the start of one’s relationship to the church, would not prevent the girl from changing her mind later.

Reading the judgment, one senses how painful this situation has been for all concerned and how hard the judge tried to do the right thing. I don’t wish to intellectualize matters inappropriately, but I was particularly struck by the judge’s reasoning with respect to the girl’s religious upbringing. It seems to me the judge understood Judaism in very Christian terms – or perhaps in very liberal, Western terms, which, in this case, turns out be the same thing. For the Read more

Posted on by Marc O. DeGirolami

District Court Dismisses Claim of Teaching Course from a “Christian Worldview”

The U.S. District Court for the District of Arizona has dismissed a claim by a woman who enrolled in a course called, “Introduction to Ethics” at a public community college, and who alleged that the teacher of the course “failed to teach the course according to the course description and instead taught her own Christian worldview,” in violation of the Establishment Clause.  The class, the plaintiff claimed, consisted of “indoctrination” rather than of instruction in various philosophical texts as set out in the course description.

After dismissing the claims for injunctive relief on grounds of mootness (the plaintiff had already completed the course and would not repeat it) the court also held that the plaintiff was not entitled to damages because of the doctrine of qualified immunity.  A little background: qualified immunity protects government officials from suit unless the particular right claimed to be violated  was ‘clearly established’ at the time of the challenged conduct.  The existence of the right needs to be “beyond debate.”

The court agreed with the defendants that although certain religious practices are clearly barred in the classroom (e.g., Bible reading, recitation of the Lord’s Prayer, posting of the Ten Commandments in every classroom, and several others), “the exact contours of what is allowed when using religious materials in a classroom and teaching from a religious perspective are not entirely clear.”  More from the court: “[J]ust becase a book, or chapters within a book, that are used in a classroom are theological in nature, the use of the book in a classroom does not automatically result in a violation of the Establishment Clause.”  And the fact that religion was discussed by the teacher was likewise not enough to make out an Establishment Clause violation.

The case is Smith v. Arizona, 2012 WL 3108818 (D. Ariz. July 31, 2012).

Posted on by Mark Movsesian

Memo to the Times Editorial Board: Read the Case

On Tuesday, the New York Times ran an editorial criticizing U.S. District Judge John Kane’s decision in one of the HHS Contraception Mandate cases, Newland v. Sebelius. Judge Kane issued a preliminary injunction blocking enforcement of the mandate against a corporation, Hercules Industries. The Times believes this ruling misreads the Constitution:

There is no constitutional precedent for individuals, much less corporations, allowing them to violate generally applicable laws because they may have a religious objection. Conversely, the company’s claim that its owners or officers have a First Amendment right to impose their personal religious beliefs on the corporation’s employees is groundless. The health insurance mandate does not place a substantial burden on religious exercise, so a federal statute protecting such exercise should not be in play.

Some of this critique is wrong, some is sloppy, and some is debatable.  But the key problem is that the critique is entirely inapposite. As my colleague Marc explained last week, Judge Kane expressly declined to address the corporation’s constitutional claims. He based his ruling solely on plaintiff’s RFRA argument. If you’re going to criticize a judicial opinion, you really should read it first.  (H/t: John McGinnis)

Posted on by Mark Movsesian

Sixth Circuit: County’s Denial of Permit for Creche Violates Free Speech Clause

Another skirmish in the Christmas Wars: the Sixth Circuit has decided that a county’s denial of a permit to erect a creche on public property violated the Free Speech Clause. For decades, a family in Macomb County, Michigan, had erected a Christmas creche on a roadway median.  In 2008, the Freedom From Religion Foundation told the county that the creche violated the Establishment Clause and asked that it be removed; after consulting counsel, the county revoked the permit. The family then sued the county, arguing, among other things, that the county had violated the family’s free speech rights. Yesterday, the Sixth Circuit agreed. In a unanimous decision by Judge Boggs, the panel held that the median was a traditional public forum and that the county had not shown a compelling interest in rejecting the creche. Although the government argued that safety concerns justified its decision, the court dismissed this as a litigation strategy. The real reason the county had rejected the creche, the court said, was to avoid a perceived Establishment Clause violation. But, notwithstanding the legal advice the county had received,  the creche did not violate the Establishment Clause. The creche, the court explained, was only one of a number of privately-sponsored displays in a public forum, and thus constitutionally unobjectionable. The case is Satawa v. Macomb County Road Commission, 2012 WL 3104511 (6th Cir., Aug. 1, 2012).