Posted on by Marc O. DeGirolami

States’ Lawsuit Against the HHS Mandate Dismissed

Yesterday was an active day for the HHS Mandate litigation.  The U.S. District Court for the District of Nebraska dismissed an action by several States (Nebraska, South Carolina, Texas, Florida, Ohio, and Oklahoma) and several organizational and individual plaintiffs against the mandate, also on grounds of standing and ripeness. 

The organizational and individual plaintiffs’ claims were dismissed on the ground that their health plans would be grandfathered in, and that the claim that they would be “trapped” in their plans, without any real allegation that they were planning to change their plans, was too “speculative” to serve as a basis for standing.

Likewise, the States’ claims of injury, said the court, were founded “in layers of conjecture” about what would happen if religious employers stop insuring and the possible effect on the States’ Medicaid programs.  These conjectures were too speculative to confer standing.

Just like (amazingly, almost exactly like) the D.C. District Court, this court ruled on the ripeness claim even though technically it did not need to.  Notwithstanding the fact the existing rule “should be considered ‘definitive’ by virtue of its formal promulgation,” the court found that the “tenative nature of the Department’s position” counseled declining review at this point.

I’m sensing a pattern here…

Posted on by Marc O. DeGirolami

Belmont Abbey College HHS Mandate Suit Dismissed on Standing and Ripeness Grounds

Yesterday, the U.S. District Court for the D.C. Circuit dismissed Belmont Abbey’s law suit alleging that the contraception mandate violates RFRA and the First Amendment.  The grounds are lack of standing and ripeness.  The court rejected the government’s claims that Belmont Abbey lacked standing because it qualified for “grandfathered” status.  It also rejected the government’s claim that any injury to Belmont was insufficiently imminent; the court held that the January 2014 deadline was not “too remote.”

But the court accepted the government’s claim that Belmont’s injury was too speculative because of the government’s stated intention to engage in new rulemaking before the expiration of the safe harbor.  It rejected Belmont’s claim that “non-binding promises of future rulemaking” can defeat standing, ruling that the government has done more than promise: it has published its plan to amend and it has issued a notice of proposed rulemaking.  “The government,” said the court, “has done nothing to suggest that it might abandon its efforts to modify the rule—indeed, it has steadily pursued that course—and it is entitled to a presumption that it acts in good faith.”  The court also dismissed the case for lack of ripeness.

There is an interesting feature of the case that appears in the ripeness discussion.  Belmont claimed that the case was ripe because even if the proposed rulemaking goes through, it would not be able to comply without violating its religious beliefs about contraception.  The court said this:

This argument assumes, however, that a particular approach described in the ANPRM—which would require health-insurance issuers to offer group plans without contraceptive coverage to organizations with religious objections while “simultaneously [providing] contraceptive coverage directly to the participants and beneficiaries covered under the organization’s plan with no cost sharing,” see 77 Fed.Reg. 16503—will make it into the final rule. Such an assumption is speculative. The ANPRM merely “presents questions and ideas to help shape discussions” regarding how best to accommodate organizations with religious objections to contraceptive coverage. Id. The Notice specifically states that it seeks input on the options it proposes “as well as new ideas to inform the next stage of the rulemaking process.” Id. (emphasis added). The rulemaking process is still in its early stages, and the contents of the final amendment have not yet been decided. It would thus be premature to find that the amendment will not adequately address Plaintiff’s concerns.

Belmont tried to resist this holding by claiming that all the government then needs to do to avoid adjudication is to file a notice of proposed rulemaking.  Though the court acknowledged this possibility, and it even said that the “circumstances are slightly less favorable to the agency here” than in another case where this possibility had been raised, it took the government at its word — or perhaps it is more accurate to say that the court took the government at its promised future word, whatever that word turns out to be.  Dismissal was without prejudice.

It would not surprise me at all if this were the approach taken by at least some other courts reviewing this litigation.

Posted on by Mark Movsesian

Virginia Ten Commandments Case Settles

A followup to a case we noted in October. Last month, a federal district court in Virginia approved a settlement in a case challenging the constitutionality of a Giles County high school’s display of the Ten Commandments. Under the terms of the settlement agreement, the school will replace the display with a page from a history textbook that mentions the Commandments without actually quoting them. As we discussed in October, the display pretty clearly ran afoul of existing Supreme Court case law, which is particularly strict about religious symbols in public schools.

Posted on by Mark Movsesian · 2 Comments

Turkish High Court Rules Against Monastery; EU Voices Concern

Another blow for Christian minorities in the Middle East: last week, Turkey’s highest court ruled against the Mor Gabriel Syriac Orthodox monastery (left), the oldest functioning Christian monastery in the world,  in a long-running lawsuit brought by local villagers. The lawsuit accused the monastery of “anti-Turkish activities,” including the illegal occupation of land that allegedly belongs to the government. Most commentators have dismissed the merits of the lawsuit — among other things, the suit claims the monastery occupies the site of a pre-existing mosque, even though the monastery predates Islam by centuries — and the high court’s behavior during the litigation has not reassured people. At one point, for example, the court apparently “lost” the documents the monastery submitted in support of its claim. The monastery will now appeal to the European Court of Human Rights, which ruled against Turkey in a similar case involving the Greek Orthodox a while ago.  The EU, meanwhile, has expressed “serious concern” about the decision.

Posted on by Marc O. DeGirolami

Wisconsin Supreme Court Plurality Dismisses Breach of Contract Claim Under Ministerial Exception

The Wisconsin Supreme Court has dismissed a breach of contract claim against St. Patrick Congregation, a Roman Catholic Church in the Archdiocese of Wisconsin.  The reasoning is…complicated.

The plaintiff had entered into a one-year contract with the Church as “Director of Faith Formation,” and the terms of the contract provided that dismissal was to occur only for “good cause” as determined by the Church.  It was undisputed that the plaintiff was a “ministerial employee,” but the plaintiff sued for her expectation damages (that is, she had already been paid for services rendered) when the Church terminated her.

The Church did not defend on the issue of whether the termination was for good cause.  It instead moved to dismiss under the First Amendment and Article I section 18 of the Wisconsin Constitution (“The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; … nor shall any control of, or interference with, the rights of conscience be permitted….”), on the basis that the plaintiff was a ministerial employee and that the Church is a religious institution.

The case was dismissed but the rationale is kind of a mess. 

Read more

Posted on by Mark Movsesian

Circumcision Controversies

A couple of weeks ago, Ron Colombo posted about a German regional court’s ruling that the circumcision of an infant boy,  requested by the boy’s parents for religious reasons, qualifies as a crime under German law. An English translation of the case is now available. A Muslim doctor circumcised a four-year old boy at the request of his parents, who wished to comply with Islamic law. German prosecutors charged the doctor with the crime of physically mistreating another person, but the trial court acquitted him. On appeal, the Cologne Regional Court held that, although the doctor was excused by reason of mistake, he had nonetheless committed a crime. Circumcision in these circumstances violates the child’s right to bodily integrity, the court held, and his right to decide for himself whether to be circumcised when he reaches adulthood. In the court’s words, “Circumcision for the purpose of religious upbringing constitutes a violation of physical integrity, and if it is actually necessary, it is at all events unreasonable.”

Although the court’s ruling obviously affects Muslims in Germany, it affects Jews as well, who, like Muslims, hold circumcision to be a religious obligation. Indeed, the Conference of European Rabbis has called an emergency meeting in Berlin this week to decide how to respond to the ruling. Meanwhile, religious circumcision is also causing a controversy here in New York. In a version of the circumcision ritual used by ultra-Orthodox Jews, the “metzitzah b’peh,” the person who performs the circumcision must suck the resulting blood from the infant’s circumcised penis. This action potentially exposes the infant to a fatal herpes infection — though some doctors discount the risk –and the New York City Board of Health has proposed a new regulation requiring that parents consent in writing before a metzizah b’peh is performed. A hearing on the proposed regulation will take place later this month.

Posted on by Marc O. DeGirolami

Permanent Injunction Issued in Bronx Household Case

The latest decision in this long legal battle (which began back in 1995) was written last Friday by United States District Judge Loretta Preska, who issued a permanent injunction against the City of New York from implementing its policy of excluding Bronx Household of Faith and other organizations engaged in “worship services” from using public school facilities on equal terms with other groups.  For some previous discussion of the case, see this, this, and this.

The court readopted its legal findings from the preliminary injunction, but addressed the City’s new claims as well.  It held that the policy violated the Free Exercise Clause because it (a) was not neutral, therefore lifting it out of the framework of Employment Division v. Smith; and (b) does not satisfy strict scrutiny. 

Read more

Posted on by Marc O. DeGirolami

Florida Appellate Court: Church Autonomy Doctrine Does Not Require Dismissal of Tort Claims

Readers may remember that in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court explicitly put to the side the question of the ministerial exception’s application to tort actions.

Here’s an interesting Florida appellate court case decided yesterday which describes some of the contours of the church autonomy doctrine in the context of relatively simple defamation and breach of fiduciary duty claims.  The plaintiff joined the First Pentecostal Church of South Brevard, Inc. and he befriended the pastor at the time.  The two developed a personal and professional friendship, and the pastor even sponsored the plaintiff to obtain a minister’s license in the greater Pentecostal church.  At some point, however, the relationship soured when the pastor accused the plaintiff of being gay and published those accusations to the congregation, including to the plaintiff’s fiancée’s father. 

Plaintiff filed a complaint for defamation and other causes of action and the defendant pastor moved to dismiss for lack of subject matter jurisdiction on the basis of the church autonomy doctrine.  The lower court dismissed.

The Florida appellate court reversed.  After finding that the church autonomy doctrine acts as a jurisdictional bar (rather than an affirmative defense…note that Hosanna-Tabor took a different view of the ministerial exception, and see also Howard Wasserman’s very good piece), the court held that the church autonomy doctrine did not shield an action by a minister of a church where there was no evidence that “the conduct in question had been undertaken ‘in furtherance of a sincerely held religious belief,’ and no claim that the church had failed to exercise control over its clergyman because of sincerely held religious beliefs and practices.”  The First Amendment, the court concluded, “does not grant Myers, as pastor of FPC, carte blanche to defame church members and ex-members . . . . This claim can be properly adjudicated without implicating the First Amendment.”

The case is Bilbrey v. Myers, 2012 WL 2465242 (Fla. App. Dist. June 29, 2012).

Posted on by Marc O. DeGirolami · 2 Comments

Fourth Circuit: No Establishment Clause Violation in Credits for Off-Campus Religious Education

The United States Court of Appeals for the Fourth Circuit has held that a South Carolina public school district policy of permitting its students to receive 2 units of credit for off-campus religious instruction does not violate the Establishment Clause.  The policy was adopted pursuant to a South Carolina state statute which authorized such credits with various limitations.  Several students in the school district took a class in a neighboring religious school entitled, “Christian Worldview,” the quality of which was assessed by another religious school (thereby obviating the need for the public school to evaluate the quality of the educational program).  The public school district did not officially promote or otherwise encourage its students to take the course, and it did not list the course on its catalog, though it did permit fliers to be distributed by its guidance counselors advertising the course — to be discussed and distributed only after a student expressed interest.  Over a 3 year period, about 20 of the district’s 1,500 students took the course each year.

The plaintiffs are parents and students in the district, as well as the Freedom From Religion Foundation, who believe that this policy violates the Establishment Clause.  The district court disagreed, and the Fourth Circuit affirmed.  After eliminating some of the plaintiffs on standing grounds (including FFRF), the court recognized the difference between a case like this and Zorach v. Clausen — the giving of academic credit for release time programs.  But the court found that this distinction was not important with respect to the constitutionality of release-time programs.  The one that mattered was the distinction between Illinois ex rel. McCollum (in which religious instruction was had within the public schools, and those who did not want it were compelled to go elsewhere) and Zorach (off-campus instruction), and the district’s approach was far closer to the latter.

Here is another interesting statement by the Fourth Circuit:

[P]rivate religious education is an integral part of the American school system. Indeed, States are constitutionally obligated to allow children and parents to choose whether to fulfill their compulsory education obligations by attending a secular public school or a religious private school . . . . It would be strange and unfair to penalize such students when they attempt to transfer into the public school system by refusing to honor the grades they earned in their religious courses, potentially preventing them from graduating on schedule with their public school peers. Far from establishing a state religion, the acceptance of transfer credits (including religious credits) by public schools sensibly accommodates the “genuine choice among options public and private, secular and religious.” Zelman v. Simmons-Harris, 536 U.S. 639, 662 (2002) (upholding an Ohio voucher initiative for this reason).

The case is Moss v. Spartanburg County School District Seven.

Posted on by Marc O. DeGirolami

Cert. Denied in the Mt. Soledad Cross Case

The Supreme Court has denied certiorari in the Ninth Circuit’s Mt. Soledad cross case, Trunk v. City of San Diego. 

Justice Alito issued a separate statement regarding the denial of cert.  Note that this is not a dissent from the denial of cert., but only a “statement.”  In his statement, Justice Alito makes clear that he agrees with the decision to deny cert. at this time.  The reason is the posture of the case.  In the Ninth Circuit decision, the panel (in an opinion by Judge McKeown) had not required that the cross be removed.  Instead, it had only required that the memorial in toto be modified so as to pass constitutional muster, in conformity with the approach the court laid out.  Justice Alito wrote:

Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will berequired to take, I agree with the Court’s decision to denythe petitions for certiorari.  Our denial, of course, does not amount to a ruling on the merits, and the Federal Government is free to raise the same issue in a later petition following entry of final judgment.

(footnotes and citations omitted). 

I have mentioned this before, but if you have not read Judge McKeown’s Trunk opinion, you’d do yourself a favor by checking it out.  One can agree or disagree with the outcome (I have my own disagreements with it), but I believe it to be a model of judicial craftsmanship and method.  Or…just wait for next spring to see in greater detail why I think Trunk is an elegant and methodologically appealing decision!