Monday, June 18, 2018

Suit Over School's Curriculum on Islam Survives Motion To Dismiss On Pleadings

Hilsenrath v. School District of the Chathams, (D NJ, June 13, 2018), involves a disagreement between a school board and a parent over whether the curriculum in the middle school World Cultures and Geography course unconstitutionally promotes or endorses Islam. According to the court:
plaintiff alleges, C.H. has been exposed to two videos and a worksheet that contain materials that members of the Islamic faith use to express religious beliefs or proselytize others.’ The Complaint begins with a quotation from those materials: “May God help us all find the true faith, Islam. Ameen.” This is captioned as the Chatham school authorities’ “call for the conversion of 7th grade students.” Such materials, the Complaint alleges, have a primary purpose of promoting and advancing the Islamic religion. The Complaint also alleges that the curriculum gives insufficient attention to the Christian and Jewish religions.
The school board responded that:
The videos on Islam ... occupied a small part of the school year. They were part of a curriculum that covered many cultures and religions and would have been understood in that context.
The court refused to dismiss the complaint at the pleading stage, concluding:
However valid, or not, the defendants’ arguments may turn out to be, they furnish no basis for dismissal of the complaint. The information about the totality of the curriculum, for example, does not appear on the face of the complaint. And the sensitive balancing required by Lemon cannot be performed on the basis of mere allegations. Such considerations are simply premature.

Sunday, June 17, 2018

Recent Prisoner Free Exercise Cases

In Dent v. Dennison, 2018 U.S. Dist. LEXIS 90043 (SD IL, May 30, 2018), an Illinois federal district court allowed an inmate to move ahead with his claim that he was excluded from 3 Protestant religious services in retaliation for filing a sexual harassment claim against a volunteer pastor at the prison for his anti-LGBT comments.

In Garner v. Lisenbe, 2018 U.S. Dist. LEXIS 90682 (ED MO. May 31, 2018), a Missouri federal district court dismissed an inmate's complaint that space formerly used for religious services was turned into housing units.

In Ervin v. Foxwell, 2018 U.S. Dist. LEXIS 91805 (D MD, June 1, 2018), a Maryland federal district court dismissed an inmate's complaint that he was served sausage with pork products in it for breakfast on one day.

In Savastano v. LaClair, 2018 U.S. Dist. LEXIS 93435 (ND NY, May 31, 2018), a New York federal magistrate judge recommended allowing a Muslim inmate to move ahead to seek injunctive relief on his complaint that there is no imam on staff and that he is denied a diet consistent with his religious beliefs.

In Estes v. Clarke, 2018 U.S. Dist. LEXIS 94322 (WD VA, June 5 2018), a Virginia federal district court granted summary judgment to a Jewish inmate who complained that the common fare diet does not meet the requirements for kosher food. It dismissed challenges regarding Passover, use of a Shofar and observance of fast days.

In Hill v. Tanner, 2018 U.S. Dist. LEXIS 94220 (ED LA, June 4, 2018), a Louisiana federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 95190, May 10, 2018) and held that mandatory streaming of religious services on all unit TV sets 3 times per week does not violate the Establishment or Free Exercise Clause.

In Banks v. Cuevas, 2018 U.S. Dist. LEXIS 95217 (ND OH, June 6, 2018), an Ohio federal district court, in  a suit by a Wiccan inmate who claimed interference with the practice of his religion and retaliation, held that a Bivens action for damages is not available in prisoner free exercise cases.

In Amon-Ra v. Ryan, 2018 U.S. Dist. LEXIS 96011 (D AZ, June 5, 3018), an Arizona federal district court dismissed a Muslim inmate's complaint that  he was denied a special meat for the Eid at the conclusion of Ramadan, that prison officials were one day off for their announced beginning of Ramadan and he ws not initially placed on the Ramadan turnout.

In Vick v. Core Civic, 2018 U.S. Dist. LEXIS 97658 (MD TN, June 11, 2018), a Tennessee federal district court, in a prisoner suit primarily focusing on other issues, held that an inmate can move ahead with his complaint that prisoners are not allowed to attend any religious services while housed in the RCA pod.

In Hargrove v. Frisby, 2018 U.S. Dist. LEXIS 98017 (SD OH, June 12, 2018), an Ohio federal magistrate judge recommended dismissing a Muslim inmate's complaint that while in disciplinary segregation for 3 months he could attend only 1 of the 2 types of Muslim religious services each week.

Police Misinformation To Parents Did Not Violate Their Religious Exercise Rights

Estate of Manolios v. Wickersham, (ED MI, June 13, 2018), is a suit against Macomb County, Michigan sheriff and police officers alleging numerous constitutional violations in their investigation of a fatal car accident.  The primary allegation was that authorities wrongfully identified Jonathan Manolios as the driver in order to protect the true driver who was a family friend of one of the investigating police officers. Among  the numerous allegations in the lawsuit was the following:
After the accident, Jonathan Manolios’ parents asked Defendants where their son’s body was found in relation to the crash scene. According to Plaintiffs, they sought this information because their religious beliefs required them to memorialize the location. Plaintiffs allege that Defendant Kennedy initially refused to provide this information, but then inaccurately identified the location...
The court dismissed this claim, saying:
... [T]he most that can be said of Kennedy’s alleged misconduct is that it failed to aid Plaintiffs in the practice of their religion. Plaintiffs did not know where Jonathon’s body was found after the accident regardless of what Kennedy did or did not do. As such, Plaintiffs could not have followed their religious obligation to memorialize that location even if Kennedy never provided the incorrect location.
In short, Plaintiffs identify no clearly establish law that would inform a reasonable official that the type of conduct alleged here violated Plaintiffs’ right to freely exercise their religion. For these reasons, the Court holds that Plaintiffs fail to state a viable First Amendment violation claim.

Saturday, June 16, 2018

Florida Appeals Court Upholds Priest's Objections To Testifying About Statements Made In Confessional

In Ronchi v. State of Florida(FL App., June 15, 2018), a Florida state appellate court held that it would violate Florida's Religious Freedom Restoration Act to require a Catholic priest, Fr. Vincenzo Ronchi, to testify about a sex abuse victim's statements made during a confession, even though the victim had waived the priest-penitent privilege.  The alleged abuse occurred when the victim was 7 and 13. She was 18 when the trial of her abuser was to take place. In quashing the trial court's order that the priest testify, the appellate court said in part:
.. [I]f Ronchi complies with the State’s demand that he testify as to his communications with the alleged victim during the Sacrament of Reconciliation, Ronchi would be forced to engage in conduct that is prohibited by the Catholic Church (and, indeed, would subject him to possible excommunication from the Church). Thus, the trial court’s order can only be upheld if the State establishes that coercing Ronchi’s testimony furthers a compelling governmental interest and is the least restrictive means to further that interest.
Here, it is undisputed that the State has a compelling governmental interest in prosecuting sex offenses perpetrated against children.... 
However, we disagree with the State’s contention that coercing Ronchi to testify ... would be the least restrictive means to further its compelling governmental interest of prosecuting Burton. First, as the State acknowledges, the testimony of Ronchi would, at most, be corroborative evidence.... Second, this case does not involve a child victim who, because of his or her tender age, might be unable to adequately testify as to the alleged sexual abuse. The alleged victim in this case is now an adult, and there is nothing in the record that suggests that she would be unable to testify as to the relevant events.

Friday, June 15, 2018

Canada's Supreme Court: Provinces Can Refuse Law School Accreditation Over LGBTQ Rights

In a pair of decisions today, the Supreme Court of Canada held that the bodies controlling the legal profession in British Columbia and Ontario can, without violating Canada's Charter of Rights and Freedoms, refuse to accredit Trinity Western University's proposed new law school.  At issue in Law Society of British Columbia v. Trinity Western University and in Trinity Western University v. Law Society of Upper Canada, (Sup. Ct. Canada, June 15, 2018), is the requirement by Trinity Western, an evangelical Christian university, that its students and faculty abide by a religiously-based code of conduct.  The so-called Community Covenant Agreement prohibits "sexual intimacy that violates the sacredness of marriage between a man and a woman."  In 7-2 decisions, the court concluded that the decision to refuse accreditation significantly advances the objective of maintaining equal access to and diversity in the legal profession and prevents the risk of significant harm to LGBTQ people.  In British Columbia decision, the court added:
The public confidence in the administration of justice could be undermined by the LSBC’s decision to approve a law school that forces some to deny a crucial component of their identity in the most  private and personal of spaces for three years in order to receive a legal education.
In the Ontario decision, the court said in part:
The LSUC’s decision means that TWU’s community members cannot impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm. The LSUC chose an interpretation of the public interest which mandates access to law schools based on merit and diversity, rather than exclusionary religious practices.
CBC News reports on the decision.

Court Enforces Document Subpoena Against Texas Catholic Bishops

Last year a suit was filed in Texas federal district court challenging the constitutionality of a Texas law that requires health providers to bury or cremate fetal remains after an abortion. (See prior related posting.) A preliminary injunction against enforcement of the law was issued in January.  Now, as the case moves toward trial, a federal district court has rejected a motion filed by the Texas Catholic Conference of Bishops attempting to quash a subpoena for documents.  In Whole Woman's Health v. Smith, (WD TX, June 13, 2018), the court rejected a free exercise challenge to a subpoena for e-mails relating to burial, cremation, or disposition of fetal or embryonic tissue.  The court said in part:
The documents requested do not address religious doctrine or church governance, but instead relate directly to a factual issue that will be central at trial: precisely what burial services are available, and will remain available, to abortion providers in Texas. That the primary organization presently offering to make those services available is a church does not make the relevant facts immune from discovery....
...  [E]ven if there would be some chilling effect on the members of the TCCB if the subpoenaed documents are produced—and that is doubtful—the Plaintiffs’ interest in obtaining the documents is sufficient to outweigh any such impact.

Settlement Reached In Muslim Women's Suit Against California Restaurant

A settlement agreement (full text) was reached yesterday in a lawsuit filed in May 2016 (see prior posting) by 7 Muslim women against a Laguna Beach, California restaurant.  The women claimed they were singled out because they were Muslim and were told to leave for overstaying the restaurant's 45-minute rule. The settlement is described in an ACLU press release:
Seven Muslim women ejected from an Urth Caffe restaurant by its management have obtained a settlement agreement requiring the restaurant chain to hold diversity trainings for its employees and update its policies....
Urth Caffe has also agreed, under the settlement, to clarify its seating policy to ensure it is applied consistently to all customers and to include in its employee handbook a requirement that customer diversity be respected.
The restaurant chain also agreed to open its Laguna Beach location all day on June 16 with free drinks and desserts for all customers in a public celebration of Eid al-Fitr, the end of the Muslim holy month of Ramadan.

Sessions Responds To Church Leaders' Criticism of Immigration Policy

As reported by NBC News, Attorney General Jeff Sessions yesterday in a speech to law enforcement officers in Ft. Wayne, Indiana (full text) responded to criticism from Christian evangelical groups of the Administration's policy of separating parents from children in arresting those crossing the border illegally.  Sessions said in part:
Let me take an aside to discuss concerns raised by our church friends about separating families. Many of the criticisms raised in recent days are not fair or logical and some are contrary to law.
First- illegal entry into the United States is a crime—as it should be. Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order....
Please note, Church friends, that if the adults go to one of our many ports of entry to claim asylum, they are not prosecuted and the family stays intact pending the legal process.
The problem is that it became well known that adults with children were not being prosecuted for unlawful entry and the numbers surged from 15,000 in 2013 to 75,000 four years later....
My request to these religious leaders who have criticized the carrying out of our laws to also speak up strongly to urge anyone who would come here to apply lawfully, to wait their turn, and not violate the law.

Suit Challenges Local Bans On Conversion Therapy For Minors

A suit was filed this week in a Florida federal district court challenging the constitutionality of ordinances enacted by the city of Boca Raton and by Palm Beach county which prohibit licensed counselors from practicing conversion therapy on minors.  The complaint (full text) in Otto v. City of Boca Raton, Florida, (SD FL, filed 6/13/2018), filed on behalf of counselors and their patients, contends that the ordinances violate speech and religious exercise rights under the federal and state constitutions, as well as state statutory protection of religious exercise and other state statutory provisions. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Thursday, June 14, 2018

Suit Alleges Viewpoint Discrimination In Distribution of Student Activity Fees

A suit was filed yesterday against officials at Ball State University by "Students for Life at BSU" alleging, among other things, viewpoint discrimination in distribution of student activity fees.  The complaint (full text) in Students for Life at Ball State University v. Hall, (SD IN, June 13, 2018), alleges that the pro-life student group's request for $300 from student activity fees was denied, apparently under the Guideline excluding from funding "[a]ny Organization which engages in activities, advocacy, or speech in order to advance a particular political interest, religion, religious faith, or ideology."  The suit alleges that the refusal violates plaintiffs' 1st and 14th Amendment rights.  ADF issued a press release announcing the filing of the lawsuit.

Pence Addresses Southern Baptist Convention Annual Meeting

Vice President Mike Pence yesterday delivered a 35-minute address (full text) at the Southern Baptist Convention Annual Meeting in Dallas, Texas.  He said in part:
... 40 years ago this spring, I heard the very message that Southern Baptists speak so faithfully across this nation every day ...that “God so loved the world, that He gave his only begotten Son, that whosoever might believe in Him would not perish, but have everlasting life.”  And I walked the sawdust trail that night in 1978, and gave my life to Jesus Christ, and it’s made all the difference....
So thank you for carrying that timeless message everyday with such faithfulness to the American people.  The truth is, Southern Baptists have always worked to bring about renewal of America, and new beginnings.  And as I stand before you today, I believe that our nation is in the midst of a time of renewal.  And we are in the midst of a new beginning of greatness in America.
CNN reported that some in attendance "were disturbed by the overtly political tone" of much of the rest of Pence's remarks, adding:
many Southern Baptists, particularly people of color and younger members, were put off by the decision to allow Pence a platform at what's supposed to be a nonpolitical event.

Another Permanent Injunction Against Contraceptive Mandate For Religious Colleges

In yet another in a line of cases, the Trump Administration has conceded that applying the Obama-era contraceptive mandate rules to religious non-profits would violate RFRA.  This time in Dordt College v. Azar, (ND IA, June 12, 2018), an Iowa federal district court issued a permanent injunction against enforcing the rules against Dordt College and Cornerstone University to the extent that doing so would violate their religious consciences.  This specifically includes services that the schools view as abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling.  Detroit Free Press reports on the decision. Cornerstone University is in Michigan, while Dordt College is located in Iowa.

DOJ Announces New Initiative To Protect Relocation For Religious Institutions

In a press release yesterday, the Department of Justice announced a new Place To Worship Initiative:
[The Initiative] will focus on protecting the ability of houses of worship and other religious institutions to build, expand, buy, or rent facilities....
The Department will work with the United States Attorney’s Offices to strengthen awareness of the land use provisions of RLUIPA by: hosting community outreach events across the country, educating municipal officials and religious organizations about RLUIPA’s requirements, and providing additional training and resources for federal prosecutors.
Along with launching the Initiative, DOJ also announced that it has filed a RLUIPA lawsuit against Borough of Woodcliff Lake, New Jersey.  The complaint (full text) in United States v. Borough of Woodcliff Lake, (D NJ, filed 6/13/2018), contends that the town imposed a substantial burden on a Chabad synagogue when it denied it a variance to allow it to expand on its current site.  The expansion plans were developed after attempts to acquire other sites were frustrated by the Borough.  New York Post reports on the lawsuit.

Wednesday, June 13, 2018

New USCIRF Chair Is Tibetan Buddhist

The U.S. Commission on International Religious Freedom announced that yesterday it elected Dr. Tenzin Dorjee, a Tibetan Buddhist, as its Chair, and Kristina Arriaga and Gayle Manchin as Vice-Chairs.  Dorjee is Associate Professor of Human Communication Studies at California State University, Fullerton. He has served as translator for the Dalai Lama.

Jewish Worshipers In Nigeria Arrested; Most Later Released On Bail

The Oracle reports that in Nigeria, nine Jewish worshipers were arrested on May 13 on charges of terrorism.  Eight of the nine were released on bail on Monday.  The ninth was still held because his file had disappeared. The arrests occurred while the nine were praying at the country home of Biafran separatist leader Nnamdi Kanu who considers himself Jewish.  Defendants' lawyer accuses the state of religious persecution, and says that anyone identifying with Kanu has become the target of Nigerian security forces.

Court Says Tribe Has Standing, But Did Not Prove Its RFRA Claim

As previously reported, in March an Oregon federal magistrate judge recommended dismissing a RFRA challenge to the destruction of sacred Native American burial grounds.  In reviewing the magistrate's recommendation, the district court in Slockish v. U.S. Federal Highway Administration, (D OR, June 11, 2018) held, disagreeing with the magistrate judge, that plaintiffs have standing to bring the challenge.  However the court still held that the RFRA claim should be dismissed because plaintiffs had not established a prima facie case of a substantial burden on their religious exercise.  Reporting on the decision, KUOW News says that members of the Confederated Tribes and Bands of the Yakama Nation and members of the Confederated Tribes of Grand Ronde will appeal to the 9th Circuit.

Permanent Injunction Issued In Ethics Battle By Alabama Justice

As previously reported, in March an Alabama federal district court issued a preliminary injunction, holding that provisions in the Alabama Canons of Judicial Ethics that were invoked against Alabama Supreme Court Justice Tom Parker are unconstitutional.  At issue was a ethics complaint over comments by Parker about the impact of the U.S. Supreme Court's Obergefell decision on an earlier Alabama Supreme Court order barring probate judges from issuing licenses for same-sex marriages.  Now the parties have agreed on the scope of a permanent injunction, and this week in Parker v. Judicial Inquiry Commission of the State of Alabama, (MD AL, June 11, 2018), the court issued an opinion and the consent injunction, barring the state Judicial Inquiry Commission from enforcing Canons 1, 2A and 3A(6):
to proscribe or punish any public comment by a judge unless the public comment can reasonably be expected to affect the outcome or impair the fairness of a proceeding pending or impending in any court. Public discussion by judges or judicial candidates of an issue of public importance cannot be proscribed or punished ... merely because that issue may happen to be the subject of a pending or impending proceeding in any court.
Liberty Counsel issued a press release on the court's action.

Tuesday, June 12, 2018

Church Sues, Surprised By Zoning Law Change

A suit was filed last week in a North Carolina federal district court by a small church challenging the zoning regulations that prevent it from using space it rented and renovated for worship services.  The complaint (full text) in At the Cross Fellowship Baptist Church Inc v. City of Monroe, North Carolina, (WD NC, filed 6/4/2018), recounts that the church leased the space after being assured by the landlord that another church had operated there in the recent past.  However, unknown to the church, an amended zoning law had been enacted in the interim which did not include churches as a permitted use there. The complaint alleges that the zoning ordinance violates its rights under RLUIPA and under the 1st and 14th Amendments.  ADF issued a press release announcing the filing of the lawsuit.