Can Publicly Held Corporations Have Religion But Not Morals?

As previously reported, yesterday the Trump Administration issued Interim Final Rules that expand exemptions from the Affordable Care Act contraceptive coverage mandate.  The Interim Rules create exemptions for entities with religious or moral objections, but create an interesting distinction between business entities asserting religious objections and those asserting moral ones.  A religious objector to furnishing contraceptive coverage may be either "A closely- held for-profit entity," or "A for-profit entity that is not closely held." (Release at pg. 160-161).  On the other hand, the new exemption for businesses with moral objections to furnishing contraceptive coverage includes only "A for-profit entity that has no publicly traded ownership interests (for this purpose, a publicly traded ownership interest is any class of common equity securities required to be registered under section 12 of the Securities Exchange Act of 1934)." (Release at pg. 98).  The Release (at pp. 51-56), in a lengthy explanation, asks for comments during the comment period on whether this distinction should be retained, saying in part:

The fact that many closely held for-profit entities brought challenges to the Mandate has led us to offer protections that would include publicly traded entities with religious objections to the Mandate if such entities exist. But the combined lack of any lawsuits challenging the Mandate by for-profit entities with non-religious moral convictions, and of any lawsuits by any kind of publicly traded entity, leads us to not extend the expanded exemption in these interim final rules to publicly traded entities, but rather to invite public comment on whether to do so....

Trump Administration Expands Contraceptive Mandate Exemptions For Religious and Moral Objectors

Yesterday the Trump Administration issued Interim Final Rules (effective immediately) that expand exemptions from the Affordable Care Act contraceptive coverage mandate for organizations, colleges and businesses that have religious or moral objections to furnishing coverage for employees (or enrolled students), as well as for employees who object to having such coverage.  The new Interim rules were issued in two releases, one covering religious exemptions (full text), and the second covering moral objections (full text).  A press release from the Department of Health and Human Service explains the new rules:

The Departments of Health and Human Services, Treasury, and Labor are announcing two companion interim final rules that provide conscience protections to Americans who have a religious or moral objection to paying for health insurance that covers contraceptive/ abortifacient services. Obamacare-compliant health insurance plans are required to cover “preventive services,” a term defined through regulation. Under the existing regulatory requirements created by the previous administration, employers, unless they qualify for an exemption, must offer health insurance that covers all FDA-approved contraception, which includes medications and devices that may act as abortifacients as well sterilization procedures.

Under the first of two companion rules released today, entities that have sincerely held religious beliefs against providing such services would no longer be required to do so. The second rule applies the same protections to organizations and small businesses that have objections on the basis of moral conviction which is not based in any particular religious belief....

Key Facts about today’s interim final rules:

• The regulations exempt entities only from providing an otherwise mandated item to which they object on the basis of their religious beliefs or moral conviction.

• The regulation leaves in place preventive services coverage guidelines where no religious or moral objection exists – meaning that out of millions of employers in the U.S., these exemptions may impact only about 200 entities, the number that that filed lawsuits based on religious or moral objections....

• The regulations leave in place government programs that provide free or subsidized contraceptive coverage to low income women, such as through community health centers....

Comments on the Interim Final Rules are due by Dec. 5.

The ACLU immediately announced that it was filing suit to challenge the Interim Rules.  The complaint (full text) in  ACLU v. Wright, (ND CA, filed 10/6/2017) contends that the Interim Rules violate the Establishment Clause as well as the equal protection components of the 5th Amendment, and the Administrative Procedure Act.

Attorney General Issues Guidance On Protection of Religious Liberty

Yesterday, Attorney General Jeff Sessions issued a 25-page Memorandum (full text) setting out the Justice Department's understanding of the scope of religious liberty protections. In a covering document, Sessions directed that the interpretive guidance in the Memorandum immediately be incorporated by the Department and U.S. Attorneys in all litigation, interpretative guidance and grant administration.  Among other things, the Memorandum provides:

RFRA applies even where a religious adherent seeks an exemption from a legal obligation requiring the adherent to confer benefits on third parties.

Sessions' Memorandum specifically endorses the Clinton Administration's 1997 Guidelines on Religious Exercise and Religious Expression in the Federal Workplace , saying:

The Clinton Guidelines have the force of an Executive Order, and they also provide useful guidance to private employers about ways in which religious observance and practice can reasonably be accommodated in the workplace.

AP reports on the Attorney General's Memorandum.saying that it "undercuts federal protections for LGBT people."

Defense Department Drops Training Material References To Southern Poverty Law Center

As previously reported, In August a Florida Christian Ministry filed suit against the Southern Poverty Law Center for damages allegedly suffered when the organization was placed on the SPLC's Anti-LGBT Hate Group list. Some other Christian groups have also sharply criticized the Southern Poverty Law Center for listing them as hate groups because of their stance on same-sex relationships.  Earlier this week, The Daily Caller reported that the Defense Department has officially severed all ties with the Southern Poverty Law Center.  DOD's Defense Equal Opportunity Management Institute has now removed all references to the SPLC in its training material.

DOJ Says Title VII Does Not Cover Transgender Discrimination

On Oct. 4, Attorney General Jeff Sessions issued a Memorandum (full text) reversing a prior Justice Department interpretation of the extent to which Title VII of the 1964 Civil Rights Act prohibits discrimination against transgender individuals.  Saying that it is dealing with "a conclusion of law, not policy", the Memorandum says in part:

Title VII's prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.  Therefore, as of the date of this memorandum, which hereby withdraws the December 15, 2014, memorandum, the Department of Justice will take that position in all pending and future matters (except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential further review).

The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals.  Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections.  Nor does this memorandum remove of reduce the protections against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals, under Title VII.

National Law Journal reports on the AG's action.

Religious Challenge To Missouri Informed Consent Abortion Law Goes To State High Court

In Doe v. Greitens, (MO App., Oct. 3, 2017), a Missouri appellate court transferred to the state Supreme Court an appeal in a religious freedom challenge to the state's abortion Informed Consent Law.  Missouri's law requires that a person seeking an abortion first receive a booklet containing specified information, including a statement that life begins at conception and that abortion will terminate the life of a separate, unique, living human being.  It also requires that the woman be given the opportunity to view an ultrasound and hear a fetal heartbeat, and then wait 72 hours before the abortion procedure.  According to the court:

Ms. Doe has alleged that the Informed Consent Law restricted her free exercise of religion and constitutes the state’s establishment of religion. The law, allegedly based on a religious tenet, required that she act and spend time and money, before undergoing a medical procedure in this state, contrary to actions—substantially motivated by her sincerely held religious beliefs—that she would have taken or refused to undertake....

Ms. Doe has alleged that Missouri’s Informed Consent Law unconstitutionally fosters an excessive government entanglement with religion in violation of the Establishment Clause. In this regard, she claims that the sole purpose of the law is to indoctrinate pregnant women into the belief held by some, but not all, Christians that a separate and unique human being begins at conception. Because the law does not recognize or include other beliefs, she contends that it establishes an official religion and makes clear that the state disapproves of her beliefs.

Under Missouri law, a transfer to the Supreme Court is required where a constitutional claims are real and substantial.

6th Circuit Hears Oral Arguments In RFRA Defense To Transgender Discrimination

The U.S. 6th Circuit Court of Appeals heard oral arguments (audio of arguments) in EEOC v. RG and GR Harris Funeral Homes Inc. In the case, a Michigan federal district court upheld a funeral home's defense under the Religious Freedom Restoration Act to a charge by the EEOC that the funeral home, in enforcing its dress code for males, engaged in gender stereotyping.  The funeral home dismissed a transgender employee who was in the process of transitioning from male to female. (See prior posting.)

Street Preacher's Suit Against Arresting Officer Is Dismissed

In Cranford v. Kluttz, (MD NC, Sept. 20, 2017), a North Carolina federal district court dismissed on qualified immunity grounds a suit against a police officer who arrested street preacher Brian Cranford at a Farmer's Market festival.  The arrest for disorderly conduct followed Cranford's shouting:

... [A]ll of those ladies over there. The Bible says that a woman should dress modestly. See a lot of ladies out here dressed like tramps and whores and prostitutes today. The Bible says you dress modestly.

Cranford was initially convicted, but then acquitted of the charges against him.  At issue in this damage action was whether the police officer had probable cause to arrest  Cranford, and that, in turn, depended on whether Cranford's remarks were directed to the crowd as a whole, or to a specific individual-- in particular the arresting officer's wife.  The court concluded that "the statement could ... reasonably be construed to have been directed to specific individuals in the crowd and intended to be provocative."

In dismissing the lawsuit, the court said in part:

The law is not established, much less clearly established, that a law enforcement officer may not arrest an individual exercising free speech and religious rights when that officer has probable cause to believe a crime has been committed.

Israel's Chief Rabbinate Urged To Allow DNA Evidence To Prove Jewish Descent In Some Cases

In Israel, the official Chief Rabbinate determines whether a person is Jewish under Orthodox Jewish religious law.  This determination is relevant to issues of marriage and burial in the country. Yesterday's Jerusalem Post reports that a leading Orthodox rabbi who is co-head of the Eretz Hemdah Institute for Advanced Jewish Studies has submitted to the Chief Rabbinate a scientific report that suggests a Mitochondrial DNA test should be allowed as an alternative method for some women to prove that they are Jewish.  Mitrochondrial DNA is inherited only through the mother, and 40% of Ashkenazi Jews have specific genetic markers showing descent from one of four Jewish women who settled in Europe over 1000 years ago.

New Report On Official and Favored State Religions

Yesterday the Pew Research Center yesterday issued a new 36-page report titled Many Countries Favor Specific Religions, Officially or Unofficially. It summarizes its findings as follows:

More than 80 countries favor a specific religion, either as an official, government-endorsed religion or by affording one religion preferential treatment over other faiths, according to a new Pew Research Center analysis of data covering 199 countries and territories around the world.

Islam is the most common government-endorsed faith, with 27 countries (including most in the Middle East-North Africa region) officially enshrining Islam as their state religion. By comparison, just 13 countries (including nine European nations) designate Christianity or a particular Christian denomination as their state religion.

But an additional 40 governments around the globe unofficially favor a particular religion, and in most cases the preferred faith is a branch of Christianity. Indeed, Christian churches receive preferential treatment in more countries – 28 – than any other unofficial but favored faith.

Suit Challenges New Version of Trump's Travel Ban As Establishment Clause Violation

Yesterday a lawsuit was filed challenging President Trump's newest iteration of his administration's travel ban.  The complaint (full text) in Iranian Alliances Across Borders v. Trump, (D MD, filed 10/3/2017), contends that the new ban set out in a Presidential Proclamation still targets Muslims in violation of the Establishment Clause, provisions of the Immigration and Nationality Act, and other provisions of the 1st and 5th Amendments.  The complaint alleges in part:

5. In a continuation of his unlawful Muslim ban, on September 24, 2017, President Trump issued the Proclamation, which suspends categorically and indefinitely, without a specified expiration date, the entry into the United States of nationals of five of the six countries included in the Second Executive Order (Iran, Libya, Syria, Yemen, and Somalia), as well as yet another Muslim-majority country (Chad). In an effort to disguise the Proclamation’s targeting of Muslims, the Proclamation adds North Korea, even though virtually no North Korean nationals travel to the United States, and adds Venezuela, but then imposes only limited restrictions on the non-immigrant entry of just a small group of Venezuelan government officials and their immediate family members.

6. Despite President Trump’s attempts to cloak this latest iteration of his Muslim ban in religiously neutral garb by invoking a national security review and including North Korea and Venezuela, the purpose and effect of the Proclamation remain unchanged: to keep Muslims from entering the United States.

In a related lawsuit filed this week, plaintiffs sought to enforce a FOIA request for copies of reports submitted to the President by the Secretary of the Department of Homeland Security.  The reports are cited in the President's Proclamation as the basis for determining which countries should be covered by the new travel ban.  Here is the complaint in the lawsuit, Brennan Center for Justice v. U.S. Department of State, (SD NY, filed 10/2/2017).

Americans United issued a press release announcing the filing of the lawsuits.  The press release includes links to other relevant documents as well.

Over Dissent, En Banc Rehearing Denied On Mississippi Conscience Protection Act

In Barber v. Bryant, (5th Cir., Sept. 29, 2017), the U.S. 5th Circuit Court of Appeals by a vote of 12-2 refused to grant an en banc rehearing in a challenge to a Mississippi law (HB 1523) that protects from discriminatory state action anyone who acts on religious or moral beliefs relating to traditional marriage, sex outside of marriage, or transgender rights.  In June, a 3-judge panel held that plaintiffs lack standing to challenge the law. (See prior posting.) Two judges dissented from the denial of an en banc rehearing in an opinion that argues:

... the panel opinion is wrong; the plaintiffs have standing to challenge HB 1523 under Supreme Court and Courts of Appeals precedents. The panel opinion misconstrues and misapplies the Establishment Clause precedent, and, as explained below, its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.

Court Enjoins Florida Law Restricting Abortion Advice

In Fuldwider v. Senior, (ND FL, Sept. 29, 2017), a Florida federal district court issued a preliminary injunction against enforcement of a Florida statute placing limits on individuals and organizations that provide advice or help to individuals seeking an abortion. Among those challenging the law were a minister and two rabbis who provide religious counseling that sometimes includes discussion of religious beliefs about abortion and sometimes includes referrals to organizations that provide abortions.

The challenged law requires those who provide advice or referrals to register with the state. It requires anyone making a referral to first provide a detailed explanation of abortion, including alternatives. Before referring a minor, the person or agency must also attempt to provide the same explanation to the minor's parents or guardian.  The court summarizes its holding:

This case presents a challenge to a state law that (1) imposes a content-and viewpoint-based requirement to register and pay a fee to engage in speech protected by the First Amendment and (2) makes it a crime not to simultaneously engage in compelled speech that the law describes so vaguely that even the state’s Attorney General does not know what is required. This order grants a preliminary injunction barring enforcement of these provisions.

ACLU issued a press release announcing the decision.

Suit Over Requirement To Remove Hijab For Booking Photo Moves Forward

In G.E. v. City of New York, (ED NY, Sept. 29, 2017), a New York federal district court refused to dismiss at summary judgment stage a free exercise claim by a Muslim woman who was required to remove her hijab for police booking photos.  Initially at the police precinct she was required to remove the head covering, but was allowed to do so in a private room with only a female photographer present.For a subsequent photo at Central Booking, she was required to remove her hijab with men present, despite her request to do so in a private room without men there.  The court said in part:

The City provides nothing in the way of record evidence (or for that matter, legal support) to explain why there were no alternative means of accommodating an arrestee’s religious beliefs at Central Booking at the time when G.E. was arrested – other than to recite the fact that the Central Booking camera was in a fixed location in view of both male and female detainees and staff. Nor does the City explain any resource, staff or other burdens the City would face were it to consider moving the camera, or providing some other accommodation. Not only are these factors central to the rational basis test itself, they are critical to the analysis here because the City did, in fact, change its policy to provide for such accommodation subsequent to G.E.’s arrest.

Various other claims by plaintiff were dismissed.

USCIRF Issues Report On Religious Freedom In Southeast Asia

The U.S. Commission on International Religious Freedom last week issued (press release) a new report titled A Right for All: Freedom of Religion or Belief in ASEAN. The report surveys religious freedom in each of the ten nations that make up the Association of Southeast Asian Nations.  The 35-page report concludes in general:

ASEAN and the individual Member States have an inconsistent record protecting and promoting human rights, and even more so with respect to freedom of religion or belief.

Recent Articles of Interest

From SSRN:

• Kyle C. Velte, Why the Religious Right Can't Have Its (Straight Wedding) Cake and Eat It Too: Breaking the Preservation-Through-Transformation Dynamic in Masterpiece Cakeshop V. Colorado Civil Rights Commission, (September 22, 2017).
• Mohamed A. Arafa, The Prohibition of Wearing Veil in Public Schools in Egypt: An Analysis of the Egyptian Supreme Constitutional Court Jurisprudence, (4 Revista de Investigações Constitucionais (Journal of Constitutional Research) 1, (Curitiba, Brasil) (Spring 2017)).
• Perry Dane, A Tale of Two Clauses: Privacy, Religion, and Constitutional Reason, (William & Mary Bill of Rights, Forthcoming).
• Brian Hutler, Religious Arbitration and the Establishment Clause, (Ohio State Journal on Dispute Resolution, Vol. 33, No. 3, 2018).
• Ethan Dazelle, I Take You to Be My [Religiously] Wedded Wife: The Prospect of Civil Marriage and Personality Law Expanding in the Levant, (May 10, 2017).
• Peter Bayer, Deontological Originalism: Moral Truth, Liberty, and, Constitutional 'Due Process', (September 27, 2017).
• Daniele D'Alvia, (Legal) Uncertainty: Takaful between English Common Law and Shari’A Law, (International Review of Law, 2017).
• Professor Rebecca Gould & Shamil Shikhaliev, ‘Beyond the Taqlīd/Ijtihād Dichotomy: Daghestani Legal Thought under Russian Rule’, (Islamic Law and Society, Vol. 24(1-2), p. 142-169, 2017).
• Jenni Millbank, Exploring the Ineffable in Women's Experiences of Relationality with Their Stored IVF Embryos, ((2017) Body & Society).
• Assaf Likhovski, Recent Trends in the Study of the Intellectual History of Law and Jewish Law Scholarship, (Forthcoming in Diné Yisrael (English section)).

Invocation Policy That Excludes Non-Theists Is Unconstitutional

In Williamson v. Brevard County, (MD FL, Sept. 30, 2017), a Florida federal district court held that the invocation practices of the Brevard (FL) Board of County Commissioners violate the Establishment Clause as well as free speech, free exercise, equal protection and various state constitutional provisions.  County Commissioners take turns inviting clergy or others to deliver an invocation at the beginning of each board meeting.  Commissioners, however, will only invite representatives of the faith-based community.  Non-theists may not deliver invocations, though they may speak during the public comment portion of a Board meeting.  The court, in a 69-page opinion, held:

Although the County contends that its invocation practice passes constitutional muster under Town of Greece, the Supreme Court's opinion in that case cannot be read to condone the deliberate exclusion of citizens who do not believe in a traditional monotheistic religion from eligibility to give opening invocations at County Board meetings. Neither Town of Greece nor any other binding precedent supports the County's arguments, and none of the County's asserted justifications for its practice holds water....

For a governmental entity to require, or attempt to require, "religious" content in invocations is, in effect (or, at best, but a step removed from) that entity composing prayers for public consumption or censoring the content of prayer....

Americans United issued a press release announcing the decision.

Reluctant Judge Holds Cross On County Seal Is Unconstitutional

In Freedom From Religion Foundation, Inc. v. County of Lehigh, (ED PA, Sept. 28, 2017), a Pennsylvania federal district court held that a large, central Latin cross in the seal and flag of Lehigh County, Pennsylvania violate the Establishment Clause under the Lemon test and the endorsement test.  However Judge Edward Smith devoted much of his opinion to explaining why he disagrees with the Supreme Court's interpretation of the Establishment Clause:

If the drafters’ intent and the plain text of the Establishment Clause had alone guided the evolution of modern First Amendment jurisprudence and shaped the law applicable to this case, its resolution would be cut-and-dry. By including a Latin cross on the Seal, the County has chosen to celebrate the Christian values important throughout its history. The County has not, however, legally compelled its citizens to practice and conform to Christianity, infringed on freedom of conscience, or created political conflict between the Christian Church and other religious sects. Simply put, the County of Lehigh did not intend to “establish” religion or institute a County religion when it adopted Commissioner Herzog’s design for the Seal. And if it had intended to do so, it has certainly failed—one of the plaintiffs himself testified that per the 2010 census, 49 percent of the County reported no religious affiliation at all....

While such considerations appear to be a matter of common-sense in determining whether a government has established a religion in violation of the First Amendment, binding precedent has taken the inquiry in a different direction.

FFRF issued a press release announcing the decision.

UPDATE: The judgment ordering a permanent injunction (full text) was entered on Nov. 2, 2017, to become effective 180 days later, and, if an appeal is filed, with a stay (except for any new uses of the seal) while the appeal is pending.

Recent Prisoner Free Exercise Cases

In Rogers v. Jackson, 2017 U.S. Dist. LEXIS 155893 (ED NC, Sept. 25, 2017), a North Carolina federal district court upheld a prison's designation of Five Percenters as a security threat group, as well as upholding restrictions on Nation of Islam. The court also sealed exhibits in the case because they would create a security risk if exposed to inmates.

In Gordon v. Combs, 2017 U.S. Dist. LEXIS 156357 (WD VA, Sept. 25. 2017), a Virginia federal district court allowed a Nation of Islam inmate to move ahead with his complaint that he was not allowed to participate in the fast of Ramadan in 2014.

In Bayadi v. Clarke, 2017 U.S. Dist. LEXIS 156356 (WD VA, Sept. 25, 2017), a Virginia federal district court allowed an inmate to move ahead with his claim under RLUIPA challenging a grooming policy that barred him from growing a beard.

In Rushdan v. Gear, 2017 U.S. Dist. LEXIS 156675 (ED CA, Sept. 25, 2017), a California federal magistrate judge held that an inmate's free exercise rights were not violated when authorities, while allowing him to use both his committed name and his religious name on prison forms, required his list his committed name first.

In Lightner v. Wenderlich, 2017 U.S. Dist. LEXIS 157831 (WD NY, Sept. 25, 2017), a New York federal district court allowed a Muslim inmate to move ahead with his claim that he could not receive a Halal diet containing meat, but dismissed without prejudice his claim regarding access to an Islamic study correspondence course.

In Olds v. Clarke, 2017 U.S. Dist. LEXIS 158328 (WD VA, Sept. 27, 2017), a Virginia federal district court dismissed a Rastafarian inmate's complaint about Common Fare religious diet and transfer of inmates who violate grooming standards.

In Kasel v. Sedgwick County Detention Facility, 2017 U.S. Dist. LEXIS 158598 (D KA, Sept. 27, 2017), a Kansas federal district court gave a Wiccan inmate one month to show cause why his complaint regarding denial of religious services and materials should not be dismissed.

In Chichakli v. Samuels, 2017 U.S. Dist. LEXIS 158703 (WD OK, Sept. 27, 2017), an Oklahoma federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 159964, Aug. 15, 2017) and allowed an inmate to move ahead with his complaint that the diet served him did not comply with kosher standards, but dismissed his complaint regarding access to religious materials and ability to engage in prayer.

In Peyton v. Walrath, 2017 U.S. Dist. LEXIS 158820 (WD VA, Sept. 27, 2017), a Virginia federal district court dismissed a Nation of Islam inmate's complaint regarding unlawful confiscation of religious materials and suspension of NOI group services.  Other complaints were dismissed for failure to exhaust administrative remedies.

In Lawson v. Carney, 2017 U.S. Dist. LEXIS 160030 (ED WA, Sept. 28, 2017), a Washington federal district court dismissed a Jewish inmate's complaint that his kosher diet was suspended for 77 days. UPDATE: The magistrate's recommendation in the case is at 2017 U.S. Dist. LEXIS 160272, Aug. 4, 2017.

Cheerleaders Can Move Ahead With Suit Over Religious-Themed Run-Through Banners

In a long-running dispute, a Texas state appeals court in Kountze Independent School District v. Matthews, (TX App, Sept. 28, 2017), held that run-through banners made and used by high school cheerleaders were private speech rather than government or school-sponsored speech. The cheerleaders sued when the school prohibited their placing religious messages on their banners. The court held that the cheerleaders' private speech is protected by the First Amendment and that the state has waived governmental immunity for suits alleging unconstitutional actions. (See prior related posting.)