Sunday, April 26, 2015

Recent Prisoner Free Exercise Cases

In West v. Grams, (7th Cir., April 22, 2015), the 7th Circuit vacated the district court's dismissal on mootness grounds of a Muslim inmate's RLUIPA claim. While the inmate had been transferred to another institution, the challenged policy of allowing religious services only if an outside volunteer is available to lead them is a system-wide policy.

In Holtz v. Pierce County, 2015 U.S. Dist. LEXIS 52453 (WD WA, April 20. 2015), a Washington federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 52448, April 1, 2015) and dismissed a number of claims by a Muslim inmate. Numerous claims were dismissed without prejudice for failure to exhaust administrative remedies. Claims relating to Halal meat and dessert; purchase of Kosher food; non-recorded visitations; threat and inappropriate language regarding religion by an officer; and conditions of housing unit regarding prayer were dismissed with prejudice.

In Desmond v. Phelps, 2015 U.S. Dist. LEXIS 52657 (D DE, April 22, 2015), a Delaware federal district court severed into three separate suits a case in which a number of inmates representing 3 different religions (Islam, Catholicism, Judaism) complained about availability of religious services.

In Allah v. Colorado Department of Corrections, 2015 U.S. Dist. LEXIS 52792 (D CO, April 22, 2015), a Colorado federal district court dismissed a Muslim inmate's complaint that after he had legally changed his name to a religious name, prison authorities only allowed him to use that as an a.k.a. along with name under which he was originally committed.

In Montague v. Schofield, 2015 U.S. Dist. LEXIS 53208 (ED TN, April 22, 2015), a Tennessee federal district court dismissed an inmate's complaint that religious programs have been curtailed and that Muslim inmates are allowed to purchase prayer oil only from a single vendor, but with general leave to amend because class action status had been denied for these and numerous other claims.

In El v. Wehling, 2015 U.S. Dist. LEXIS 53356 (D NJ, April 23, 2015), a New Jersey federal district court in dealing with a sprawling 537-page complaint raising 49 counts relating to plaintiff's arrest and his being charged with weapons and drug offenses among other things dismissed plaintiff's claim that his free exercise rights were infringed when officials used his given name rather than his Moorish name on court papers.

In Barstad v. Wright, 2015 U.S. Dist. LEXIS 53573 (WD WA, April 23, 2015), a Washington federal magistrate judge recommend dismissing an inmate's complaint that his free exercise rights were infringed by various mail rejections.

In Kuykendall v. Kennell, 2015 U.S. Dist. LEXIS 53798 (CD IL, April 24, 2015), an Illinois federal district court dismissed an inmate's complaint that his requests to change his religious affiliation from Catholic to Messianic Hebrew, then to Judaism, and lastly to Assemblies of Yahweh were not honored to legitimize his requests for a list of Jewish holidays, special religious holiday meals and a Kosher diet.

Egyptian Channel Cancels Program After Host's Criticism of Conservative Islam

Egypt's Daily News reported yesterday that the Al-Qahera Wal Nas satellite channel has cancelled the program hosted by commentator Islam El-Behiry after two lawsuits against it challenge El-Behiry's criticism of conservative Islamic schools of thought.  One suit filed by an independent lawyer calls for closing down the channel and removing episodes of the program from the Internet, accusing El-Behiry of "insulting the divine."  A second suit filed by the Grand Imam of Al-Azhar accuses El-Behiry of insulting Al-Azhar which Egypt's Constitution makes the main source of interpretation of Islamic law.  Egypt's President Abdel Fattah Al-Sisi has called for a reinterpretation of Islamic doctrine (see prior posting). In cancelling El-Behiry's show, the channel said:
We should let ‘enlightened’ religious preachers handle the task of renewing religious discourse.

Abercrombie Changes Dress Code As Supreme Court Decision Nears

As it awaits a Supreme Court decision in a case challenging its failure to provide a religious accommodation to its dress code for employees (see prior posting), Abercrombie & Fitch announced Friday that it will no longer hire employees based on body type or physical attractiveness.  According to the Washington Post,  the change comes as the company faces declining sales and less than six months after the long-time and controversial CEO Mike Jeffries stepped down.  The company's new dress code softens its "Look Policy," but employees among other things are still barred from wearing head coverings.  However the company says it will accommodate disabilities and "sincerely-held religious beliefs."

Saturday, April 25, 2015

FASB Proposes Changes In Accounting Standards For Non-Profits

On April 22, the Financial Accounting Standards Board issued an Exposure Draft containing proposed refinements in current accounting standards for Non-Profit Entities. (Full text). The proposals address several issues:
  • Deficiencies in the utility of information provided to donors, creditors, and others regarding an entity's liquidity stemming from misunderstandings of restrictions imposed by donors, laws, contracts, and governing boards on the entity's assets.
  • Inconsistencies in the reporting intermediate measures of operations in the statement of activities.
  • Inconsistencies in the type of information provided about the function and nature of operating expenses.
  • Misunderstandings about and opportunities to enhance the utility of the statement of cash flows.
BNA Daily Report for Executives (subscription required) has more on the proposed changes.

Arizona Wins $2.18M In Attorneys Fees From FLDS Controlled Towns

As previously reported, last September an Arizona federal district court imposed a $50,000 civil penalty under the Arizona Fair Housing Act against the FLDS-controlled towns of Colorado City, Ariz., and Hildale, Utah for denying utility service to a couple because they are not FLDS members. Now in Cooke v. Town of Colorado City, (D AZ, April 21, 2015), the court ordered defendants to pay the state of Arizona (which was an intervenor in the case) was awarded $2.18 million in attorneys fees. Salt Lake Tribune reports on the decision.

Friday, April 24, 2015

Supreme Court Denies Certiorari In Title VII Case

Last Monday, the U.S. Supreme Court denied certiorari in Macon v. J.C. Penney Co., (Docket No. 14-946, cert. denied 4/20/2015) (Order List.)  In the case, the U.S. 6th Circuit Court of Appeals in a Dec. 29, 2014 opinion (full text) affirmed the district court's dismissal of plaintiff's Title VII religious accommodation claim.  Plaintiff was fired when she refused to sign her company's Statement of Business Ethics because according to her Christian beliefs the Bible prohibited her from taking oaths or making promises. She also refused to sign a document titled Our Integrity Promise because it would prevent her from writing an autobiography that included her work experiences. BNA Daily Report for Executives (subscription required) reports on the denial of review.

Controversial Former Navy Chaplain Now Running For Colorado State Senate

Former Navy chaplain Gordon James Klingenschmitt, who gained national attention for his long-running battle with the military over regulations requiring chaplains to deliver inclusive prayers at military events (see prior posting), is back in the news. Klingenschmitt, who hosts a national religious television show under the pseudonym "Dr. Chaps," was elected to the Colorado state House of Representatives last November. Last month, Klingenschmitt was removed by the House Republican leader from the Health, Insurance and Environment Committee after Klingenschmitt suggested on his TV show that the brutal attack on a pregnant Longmont, Colorado woman was "the curse of God upon America for our sin of not protecting innocent children in the womb." (Denver Post, March 31).

The Colorado Independent published an interview with Klingenschmitt yesterday discussing Klingenschmitt's decision to run in 2016 for State Senate. Asked how he made the decision to run, Klingenschmitt responded in part:
I went on a three-day, water-only fast, day and night for 72 hours, and I prayed....  At the end of that time, I was reading in the Bible in Joshua, chapter one, where God blessed Joshua and told him, ‘Everywhere you set your foot you will claim as your territory.’ He was talking about ancient Israel. I was inspired by that.
It reminded me of many of the volunteers who knocked on doors for me in my previous campaign and maybe in my future campaign. Everywhere they set their foot, every time they knocked on a door, whether for me or another candidate, those citizens are taking back their territory. They are making a political claim, and almost a spiritual claim, on how they’re going to be represented in the Capitol here.....

Oklahoma Legislature Passes 2 Bills Protecting Clergy, Judges and Churches That Object To Same-Sex Marriage

The Oklahoma legislature this week gave final passage to HB 1007 (full text) protecting clergy and religious organizations that object to same-sex marriage.  The bill provides that clergy shall not be required to solemnize marriages that violate their conscience or religious beliefs.  Religious organizations shall not be required to provide religious-based services designed for engaged or married couples or couples where the services are directly related to solemnizing, celebrating, strengthening or promoting a marriage, such as religious counseling programs, courses, retreats and workshops, if doing so would violate the conscience or religious beliefs of an official of the organization.  Clergy and officials of religious organizations are immunized from civil liability for refusing to solemnize or furnish services for such marriages.

The legislature also gave final passage to SB 788 (full text) that (unless otherwise prohibited by law) protects judges who are authorized to perform marriages, as well as clergy, from being required to "perform or solemnize any marriage in violation of his or her right to the free exercise of religion guaranteed by the First Amendment to the United States Constitution." It also provides that no church or church-controlled organization shall be required to participate in a ceremony performing or solemnizing a marriage in violation of the church's or organization's religious beliefs.

Texas Chef Says Feeding Homeless In Park Is Protected By State's RFRA

San Antonio, Texas chef Joan Cheever was cited by police earlier this month for feeding the homeless in the city's Maverick Park.  According to a report last week by My San Antonio, Cheever has been serving restaurant quality food to the city's homeless for the last ten years. She has a food permit for her non-profit mobile food truck known as  Chow Train, but police cited her for transporting and serving the food from another vehicle.  The ticket carries a potential fine of $2000. At her June 23 court hearing, Cheever will argue that her activity is protected by the 1999 Texas Religious Freedom Restoration Act.

Sex Club Evades Zoning Restrictions By Becoming A Church

The Washington Post yesterday published a lengthy and fascinating account of a Nashville, Tennessee swingers sex club that has apparently gotten around a number of zoning hurdles put in its way by turning itself into a church-- the United Fellowship Center.  The club sold its downtown building at a profit as its neighborhood gentrified, and it purchased a new building in the suburban community of Madison.  At the time, the building was properly zoned for the social club's activities.  However the building was located between two churches and an upscale Christian academy.  Local zoning laws were soon amended to bar private clubs of any kind in the area where the building was located.  And the state legislature passed a law prohibiting private clubs at which people can  view or engage in sex from operating within 1,000 feet of a school. So the club became a church at which swingers meet, mingle and engage in the regular practice of their faith. It revised its building plans to give areas of the church appropriate names. Actual sex will have to move off premises. The church's attorney says:
They can sue us and say they want an injunction to stop us from operating, and we can say we have some tenets of the church sort of like the Ten Commandments.... 

Thursday, April 23, 2015

Employment Discrimination Suit Dismissed On Ministerial Exception Grounds

In Preece v. The Covenant Presbyterian Church, (D NE, April 22, 2015), a Nebraska federal district court held that the ministerial exception doctrine requires dismissal of employment discrimination claims by a church's former Director of Youth Ministry.  Richard Preece claimed that his employment was terminated in violation of Title VII and the Nebraska Fair Employment Practices Act because he obtained a divorce and in retaliation for complaining about sexual harassment by a pastor who was his direct supervisor.  The court held:
The plaintiff’s job duties reflected a role in him conveying the defendant’s message and carrying out its mission..... In this case, the defendant’s treatment of the plaintiff in relation to his sexual harassment allegation clearly implicates an internal church decision and management, rather than the outward physical acts of one pastor. Accordingly... this court finds the plaintiff’s sexual harassment claim is factually entwined and related to the plaintiff’s other claims, which the court may not review without excessive government entanglement with religion in violation of the First Amendment.

County Council Prayer Policy May Limit Invocations To Local Clergy

In Coleman v. Hamilton County, Tennessee, (ED TN, April 22, 2015), a Tennessee federal district court upheld the prayer policy of the Hamilton County, Tennessee Commission.  The policy allows any eligible member of the clergy in the county to deliver an opening invocation. Plaintiff argued that the Policy is unconstitutional because it only allows invocations to be delivered by members of the clergy who are part of an eligible and established assembly or congregation and makes no provision for other individuals to deliver the invocation. The court rejected the argument, saying:
Plaintiffs’ argument is clearly flawed and flies in the face of established Supreme Court precedent. In Marsh, the Supreme Court expressly authorized legislative bodies to appoint and retain a single person to give invocations at the beginning of official meetings. To find that each and every individual person under the jurisdiction of a particular legislative body has the right to give an opening prayer or invocation at the body’s meetings would effectively overrule not only Marsh, but an entire body of federal case law approving of the constitutionality of chaplains and non-discriminatory legislative prayer policies.
An ADF press release announced the decision.

Obama Urged To Appoint Near East Religious Freedom Envoy

Last year Congress passed and the President signed the Near East and South Central Asia Religious Freedom Act which provides that  the President may appoint a Special Envoy to Promote Religious Freedom of Religious Minorities in the Near East and South Central Asia. (See prior posting.)  However the President has never filled the authorized position.  The Washington Times reported this week that now members of Congress and religious activists are urging the President to move swiftly to fill the position as Christians face increasng threats in the Middle East.  Last week 43 members of Congress wrote the President urging speedy action, and on Monday over 50 organizations, scholars, religious leaders and human rights advocates wrote the President with a similar request, saying in part:
In the seven months since the legislation became law, discrimination, repression and outright violence against religious minorities has only escalated.

Plaintiffs Say LA County Continues To Use Seal With Cross In Violation of Agreement

According to the Los Angeles Times,, yesterday a group of Christian, Jewish and Muslim leaders in Los Angeles filed papers in federal court alleging that Los Angeles County is violating an agreement it entered in connection with a pending lawsuit challenging the new design of the county seal.  In February 2014, the religious leaders, represented by the ACLU, sued challenging the redesign that added a cross atop the depiction of the San Gabriel Mission that is already on the county seal. (See prior posting.)  Last June, the county agreed to stop using the new seal while the litigation was pending.  In yesterday's motion, plaintiffs claim that the seal containing the cross is still on the county supervisor's website, a cover sheet for a recent Board of Supervisors meeting transcript and a program for the county's "Women of the Year" luncheon.  The county contends that all of these are materials that were in place before the June agreement. The ACLU says that materials for every new Board of Supervisor's meeting involves a new use of the county seal.

Wednesday, April 22, 2015

Catholic Bishop Robert Finn, Convicted of Not Reporting Sex Abuse, Resigns

According to the National Catholic Reporter, the Vatican yesterday announced that Pope Francis has accepted the resignation of Bishop Robert Finn, head of the diocese of St. Joseph-Kansas City, Missouri.  In September 2012, Finn became the first bishop convicted criminally for failure to report suspicion of child abuse by a priest in his diocese. (See prior posting.) Parishioners have been calling for Finn's resignation, and Vatican's Congregation for Bishops conducted an apostolic visitation in September 2014 to investigate. In a posting on its website, the St. Joseph-Kansas City Diocese announced the resignation and the appointment of Kansas Archbishop Joseph F. Naumann as Apostolic Administrator of the Diocese.

Irish Court Dismisses Abuse Suit Against Religious Order Not Brought For 30 Years

In Cassidy v. The Provincialate, (Ireland Ct. App., April 16, 2015), Ireland's Court of Appeal held that a sex abuse suit seeking damages from the Religious Sisters of Charity should be dismissed for inordinate and inexcusable delay.  The suit was brought in 2012 by a 47-year old married mother of four who claimed that a male employee of the religious order assaulted, abused and raped her over a period of 4 years beginning in 1977 when she was between 12 and 16 years old. She alleged that the religious order was negligent in allowing the abuser (identified as "PD") to have ongoing unsupervised contact with children. The appeals court concluded that there was insufficient evidence of facts that would excuse plaintiff's delay in bringing suit, and the delay would cause great prejudice to defendant since the alleged abuser is now dead:
In the absence of PD, the defendant is not in a position to challenge or counter the allegations of abuse which the plaintiff makes.... [I]n circumstances where, almost to a man or woman, those who were alive at the time of the alleged abuse are dead or incapable of giving evidence, the defendant is once again left in a hopelessly vulnerable situation. Further, those witnesses that might have been able to assist in giving evidence referable to the issue as to whether or not the defendant ought to be deemed vicariously liable for the actions of PD, should findings of abuse be made against him, are effectively non existent.
Lexology reports on the decision.

Free Exercise Defense Raised For Teen Charged With Attempting To Support ISIS

The Chicago Sun-Times reported yesterday that the attorney for Chicago teenager Mohammed Hamzah Khan has filed a motion to dismiss the indictment against Khan on First Amendment grounds.  The 19-year-old Khan was arrested at O'Hare Airport in October as he and his younger brother and sister were trying to travel to the Middle East to join ISIS.  He was charged with knowingly attempting to provide material support and resources to a foreign terrorist organization.  According to a long and interesting article last month in Rolling Stone on the three siblings, Khan wrote in a letter to his parents:
An Islamic State has been established, and it is thus obligatory upon every able-bodied male and female to migrate.
In his motion to the court filed last week, Khan's attorney, Thomas Anthony Durkin, argued:
While it is easy to disagree with Mr. Khan’s unpopular religious beliefs and label them misguided simplistic, or even fundamentalist, it cannot be said that [they] were not sincerely held — and that is all that must be shown.

Jury Convicts 3 In "Coerced Get" Kidnappings

In Trenton, New Jersey yesterday a federal district court jury convicted 3 of the 4 defendants on trial on kidnapping related charges growing out of alleged arrangements to abduct, beat and torture recalcitrant Jewish husbands who refused to give their civilly divorced wives a religious divorce document (get). (See prior posting.) NJ Advance Media reported that the most prominent of the defendants, 69-year old Orthodox Jewish Rabbi Mendel Epstein, was found guilty only of conspiracy to commit kidnapping.  Prosecutors charged that he arranged the kidnappings and torture in exchange for as much as $60,000.  The jury found Rabbi Jay Goldstein, who allegedly acted as the scribe for the gets guilty of conspiracy to commit kidnapping and attempted kidnapping.  Rabbi Binyamin Stimler who allegedly acted as a witness for the get was also convicted of conspiracy and attempt. David "Ari" Epstein, son of Mendel, was acquitted on all charges.  All of the defendants were acquitted on the kidnapping counts against them.  Stimler's attorney says an appeal is planned.

Court Requires NY Transit Authority To Accept Anti-Islam Ads

In American Freedom Defense Initiative v. Metropolitan Transportation Authority, (SD NY, April 21, 2015), a New York federal district court granted a preliminary injunction to a pro-Israel advocacy group requiring the New York Metropolitan Transit Authority to accept the group's anti-Islam ad for display on the back of New York City buses. The ad included a picture of a man with his face largely covered by a keffiyeh and the language "Killing Jews is worship that draws us closer to Allah.  That's his jihad.  What's yours?"  The court found a likely infringement of plaintiff's free speech rights in a designated public forum.  It rejected the MTA's argument that the ad could be refused under its standards barring ads that will incite or provoke violence, saying that the MTA had not produced evidence that it would incite imminent violence. Reuters reports on the decision.  Last month, a Pennsylvania federal district court reached a similar conclusion regarding a different anti-Islamic ad from AFDI. (See prior posting.)

Israel's Women of The Wall Score Another First

The Jerusalem Post reported Monday that at Israel's Western Wall, the feminist group Women of the Wall succeeded for the first time in reading from a full-size Torah scroll at its monthly Rosh Chodesh prayer service at the Wall.  A scuffle broke out after a male worshipper in the men's area of the Wall passed one of the Torah scrolls available for public use to the women's area in violation of worship rules promulgated by the rabbi of the Western Wall. The Forward puts Monday's event in some perspective:
For Women of the Wall, this is a double victory: Not only did they read from a proper Torah, they also drew renewed attention to Western Wall Rabbi Shlomo Rabinowitz’s 2010 ban on Torah scrolls in the women’s section. While the Wall boasts more than 100 Torah scrolls, they’re all on the men’s side, preventing women from using them and making a full women’s holiday service next to impossible. If this incident creates enough pressure to remove Rabinowitz’s ban, it will be a win for Women of the Wall.
But really, Women of the Wall won its war two years ago. For decades, the group’s prayer was prohibited, its activists were detained and arrested, and their cause became a rallying cry for liberal Judaism — especially in the United States. But that ended in April 2013 when a Jerusalem district court judge ruled that their services were, in fact, legal.

Tuesday, April 21, 2015

North Carolina Counties Approve Display of "In God We Trust" Signs

Christian Post reported yesterday that the  McDowell County, North Carolina Board of Commissioners last week, working with the U.S. Motto Action Committee, approved placing "In God We Trust" signs in county buildings.  Two other county commissions in North Carolina took similar action earlier this year. Local reaction to the McDowell County decision has been mixed.

North Carolina Magistrates Forced To Resign Over Same-Sex Marriage Now Seek Reinstatement

As previously reported, last October North Carolina's Administrative Office of the Courts issued a memo stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples. The memo led a number of magistrates to resign rather than perform same-sex wedding ceremonies.  Now, according to ABC News, two of the magistrates who resigned filed a state court lawsuit earlier this month seeking reinstatement, injunctive relief, damages and attorneys' fees.  Former magistrates Gilbert Breedlove and Thomas Holland contend that their religious freedom rights were infringed by requiring them to officiate at same-sex marriages.

South African Court Awards Maintence and Child Support To Woman Divorced Only Under Islamic Law

A South African court has issued a precedent-setting ruling by awarding interim maintenance to a woman who was married and divorced under Islamic religious law, but without precedures required by South African civil law. Her husband divorced her by pronouncing a single valid talaq.   IOL News reports that in a ruling from the bench, a Durban High Court judge ruled that the cournty's Marriage Act applies.  Judge Fikile Mokgohloa awarded the woman the equivalent of $1650 (US) per month as maintenance for her and the two children and ordered the husband to pay reasonable education cost for the children not to exceed $400(US) per child per month.  The husband was also ordered to pay the equivalent of $1225(US) toward the wife's legal costs. The husband argued that under Islamic law, he was only required to pay maintenance for the wife, and then only for approximately three months (the mandatory waiting period of iddah).  The wife is now proceeding with a full civil divorce action.

Monday, April 20, 2015

Supreme Court Denies Review In RLUIPA Land Use Case

The U.S. Supreme Court today denied review in Lichtfield Historic District Commission v. Chabad Lubavitch of Litchfield County, Inc., (Docket No. 14-1001, cert. denied 4/20/2015) .(Order List). In the case, the Second Circuit Court of Appeals held that the district court had applied erroneous legal standards in deciding whether a refusal to allow a Jewish group to expand a building in Lichtfield's Historic District violates RLUIPA’s substantial burden and nondiscrimination provisions. (See prior posting.) AP reports on the Supreme Court's denial of review.

Utah Law Creates Uncertainty In Protections For County Clerks Refusing To Officiate At Same-Sex Marriages

Yesterday's Deseret News reports that in Utah, county clerks are closely examining one provision included in SB 297 titled "Protections for Religious Expression and Beliefs about Marriage, Family, or Sexuality." The law, signed by the governor last month and effective May 12, generally protects religious officials and religious organizations from being required to participate in, or furnish goods or services to, marriage ceremonies that violate their religious beliefs. (The 10th Circuit struck down Utah's ban on same-sex marriages last year. See prior posting.) SB 297 also protects individuals holding business or professional licenses from sanctions for expressing their religious views about marriage or sexuality in a nonprofessional setting. However amendments in SB 297 to Utah Code Sec. 17-20-4 for the first time require county clerks to assure a civil marriage official is available. It provides that county clerks shall
establish policies to ensure that the county clerk, or a designee of the county clerk who is willing, is available during business hours to solemnize a legal marriage for which a marriage license has been issued.
Designees do not need to be employees of the clerk's office.  It can be anyone in the county.  According to the Deseret News:
 Offering couples a list of designees seems to be the route many county clerks are going, though the definition of "designee" might be open to interpretation.
Some county officials believe it would allow them to delegate a person of their choosing such as a family member or friend to perform the ceremony on a one-time basis, something county clerks could do until the Legislature took that authority from them 10 years ago.
But that also raises the possibility that if a grandfather, for example, were designated to marry his granddaughter and her fiancĂ©, he would be obligated to marry any couple who asks from then on.   

Recent Articles of Interest

From SSRN:
From SmartCILP and elsewhere: