New Jersey Dioceses Release Names of Accused Priests

North Jersey Record reports that the five Catholic dioceses in New Jersey yesterday posted the names of 188 priests who have been credibly accused of sexually abusing children over past decades.79 of the priests listed are still living. In a letter to the faithful of the Archdiocese of Newark, Cardinal James Tobin announced that a new Independent Victim Compensation Program has been established.

Mosque Survives Motion To Dismiss Its RLUIPA and Constitutional Claims

In Garden State Islamic Center v. City of Vineland, (D NJ, Dec. 12, 2018), a New Jersey federal district court refused to dismiss a mosque's challenge to the denial of a final certificate of occupancy. The denial stems from the city's claim that the mosque is in violation of its septic system permit.  As summarized by the court:

GSIC claims that the Defendants’ actions are discriminatory in nature and are intended to prevent the GSIC from permanently opening and operating its house of worship/ religious education building through the discriminatory application of land use regulations, in violation of the Religious Land Use and Institutionalized Persons Act ... and the Constitutions of the United States and New Jersey. Plaintiff alleges that the City continually changed the requirements for the septic system, which they previously approved, for discriminatory purposes.

The septic tank issue was merely the latest in a series of procedural hurdles encountered by the mosque. The court concluded that "the sewage permit issue is a zoning law subject to RLUIPA." The court also refused to dismiss plaintiff's 1st and 14th Amendment claims and related New Jersey constitutional claims.

Rabbi Sues Condo Association For Religious and Disability Accommodations

Jersey Shore Online reports on a lawsuit filed yesterday in New Jersey federal district court by a retired Orthodox rabbi against his condominium association claiming religious and disability discrimination. Rabbi Philip Lefkowitz moved to the Jackson, NJ senior living community with his two sons in 2016.  All three are confined to wheelchairs because of complications from diabetes. Lefkowitz seeks permission to build a Sukkah -- a temporary structure for the Fall holiday of Sukkot-- that is larger than the association bylaws permit in order for the structure to be wheelchair accessible. He is also asking that a path be built between the sidewalk and a nearby gate that is currently kept locked.  He wants the gate equipped with a Sabbath-accessible lock so he and his sons can get to religious services.

New Jersey Dioceses Release Victims From Non-Disclosure Agreements

This week, Patrick Brannigan, executive director of the New Jersey Catholic Conference, announced that victims of priest sexual abuse are free to ignore confidentiality agreements they signed in settling their claims with dioceses in New Jersey.  Such agreements were used in settlements prior to 2002.  NJ.com reports on this statement issued by Brannigan:

Cardinal Joseph Tobin and the other Catholic bishops of New Jersey have no issue if someone who had signed a settlement agreement prior to 2002 speaks publicly about his or her ordeal. In fact, we tell survivors who come forward that we will inform law enforcement of their allegations, and we encourage them to do the same.

Cert Filed In Case Testing Limits of Trinity Lutheran Case

A petition for certiorari (full text) was filed on Tuesday with the U.S. Supreme Court in Morris County Board of Chosen Freeholders v. Freedom From Religion Foundation.  In the case, the New Jersey Supreme Court held that historic preservation grants to 12 churches (totaling $4.6 million) violate the Religious Aid Clause of the New Jersey Constitution.  The Court went on to hold that this interpretation does not violate the Free Exercise Clause of the U.S. Constitution. The petition for review frames the issues in the case as follows:

1. Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran [v. Comer].

2. Whether the categorical exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.

Becket issued a press release announcing the filing of the cert. petition.

Mahwah Settles New Jersey;'s Suit Against It Over Anti-Jewish Ordinances

A settlement agreement (full text) was reached yesterday in Grewal v. Towship of Mahwah. (D NJ).  In the case, New Jersey's attorney general charged the Town of Mahwah with religious discrimination aimed at preventing an influx of Orthodox Jews.  In particular, the suit pointed to an ordinance banning out-of-state residents from using public parks, and another aimed at preventing the construction of eruvs. (See prior posting.) The settlement acknowledges repeal of the parks ordinance and affirms the right of residents to build eruvs in the township. $350,000 in penalties and attorneys' fees were suspended so long as terms of the settlement are not violated in the next four years. Various record keeping and reporting requirements are also included in the settlement. NJ.com reports on the settlement. [Thanks to Steven H. Sholk for the lead.]

Appeals Court Remands Employment Discrimination Claim Against NJ Corrections Department

In Roseus v. State of New Jersey, (NJ App., Sept. 10, 2018), a New Jersey state appeals court remanded to the trial court a suit in which plaintiff claimed the Department of Corrections (DOC) violated the state's Law Against Discrimination when it dismissed him from a training program for corrections officers. DOC refused to grant  Marven Roseus, who for religious reasons does not shave his face or head, a religious accommodation to depart from the Department's grooming rules. The appeals court held:

[D]efendants moved for dismissal... Consequently, there is no record.... [W]e do not have a record of the DOC's actual grooming policy, the rationale for that policy, whether the DOC has granted accommodations to others from its grooming policy, whether the DOC engaged in a "bona fide effort" to accommodate plaintiff, and whether an accommodation to plaintiff would impose an "undue hardship" on the DOC. 

Teacher May Sue Catholic School For Pregnancy Discrimination

In Crisitello v. St. Theresa School, (NJ App., July 24, 2018), a New Jersey state appellate court reversed a trial court's dismissal of a discrimination suit brought against a Catholic parochial school by a former preschool lay teacher who had been fired for engaging in premarital sex. The teacher was terminated for violating the Church's ethical standards when it was found that she was pregnant and unmarried. Plaintiff sued under New Jersey's Law Against Discrimination, claiming pregnancy discrimination. The court said in part:

To be clear, in this case, plaintiff does not raise any challenge to defendant's religious doctrines or its right to specify a code of conduct for its employees based on that doctrine. Rather, she seeks an adjudication of her claim that she has been singled out for application of that doctrine as a pretext for impermissible discriminatory reasons. If proven, such conduct by defendant would be a violation of secular law protecting against discrimination....

In a case involving the firing of a pregnant employee, evidence of how male employees were treated is particularly useful in determining whether unmarried pregnant women are treated differently. Absent evidence that men are treated the same way as women who are terminated for engaging in premarital sex, a religious institution violates LAD because if "'women can become pregnant [and] men cannot,' it punishes only women for sexual relations because those relations are revealed through pregnancy." 

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.

New Jersey Legislature Again Votes To Ban All Marriages For Those Under 18

Yesterday the New Jersey legislature gave final passage to S-427 (full text). The bill prohibits persons under age 18 from entering into a marriage or civil union.  The bill eliminates the provisions in current law that allow persons to marry with parental consent at age 16 or with judicial approval at a younger age.  New Jersey Law Journal says that it is unclear whether Gov. Phil Murray will sign the bill.  Last year then-Governor Christie vetoed a similar bill, saying that without some exceptions it would violate religiously-based customs of some communities. (See prior posting.)

Native Americans Sue To Keep Use of Prayer Ground

On Monday, a suit was filed in New Jersey federal district court on behalf of the Native American Ramapough Lenape Nation claiming that local officials along with a neighboring housing association are attempting to prevent the Ramapoughs from using their own prayer ground for religious activities. (See prior related posting.)  The complaint (full text) in Ramapough Mountain Indians, Inc. v. Township of Mahwah, (D NJ, filed 5/14/2018), alleges in part:

Defendant Township of Mahwah is imposing cumulative crippling fines against plaintiff Ramapough of $12,500 per day, totalling $480,000 as of May 14, 2018, to end religious use of property, to eliminate sacred sites, and prevent assembly.

...  By letter dated September 5, 2017 Mahwah sent a letter purporting to revoke a 2012 zoning permit that it failed to disclose to Ramapough or State Courts recognizing religious use and logs with masks carved in them ... unilaterally and secretly without notice nor opportunity to be heard.

... Defendant Polo Club, in furtherance of this campaign to pressure the Ramapough Nation into ceasing its religious practices, to assemble and in fact to yield up the land, has made numerous unfounded complaints to the police department and used the New Jersey municipal "private warrant" process to bring criminal charges against Ramapough members.

Plaintiffs claim that these actions violate their 1st and 14th Amendment rights, RLUIPA and international treaties.  Courthouse News Service reports on the lawsuit.

New Jersey Supreme Court Says More Facts Needed To Decide Religious Capital Grants Challenge

In ACLU of New Jersey v. Hendricks, (NJ Sup. Ct., May 2, 2018), the New Jersey Supreme Court refused to decide on the record before it whether a $10.5 million grant to a Yeshiva and a $635,000 grant to a Christian theological Seminary violate the New Jersey Constitution.  The grants were awarded by the Secretary of Higher Education under  a state program designed to subsidize capital improvement projects at institutions of higher learning. The lower court held that the grants violated the Religious Aid Clause of the state constitution that prohibits using tax monies "for the maintenance of any minister or ministry".  However, the Supreme Court said:

Rather than address a matter of constitutional importance on an insufficiently developed record, the better course is to remand the matter for an evidentiary hearing to bring the relevant factual material into better focus. Among the questions to be explored are ... (1) the sectarian nature of these institutions of higher education; (2) whether, in the setting of the curriculum and training programs of these particular institutions, the grant funds will necessarily be used in the “maintenance of any minister or ministry”; and (3) the adequacy of promised restrictions, or other curbs, against sectarian use of the grant proceeds at present and into the future....

Accordingly, we will remand to the Secretary for the development of a record in accordance with this opinion.

Asbury Park Press reports on the decision.

Court Refuses To Dismiss Challenge To Town's Settlement Agreement On Mosque Construction

In Quick v. Township of Bernards, (D NJ, April 30, 2018), a New Jersey federal district court denied defendant's motion to dismiss a lawsuit challenging a settlement agreement entered by the Township of Bernards to settle a dispute over construction of a mosque in the Township.  Under the settlement agreement, a new Planning Board hearing on permitting construction of the mosque was to be held.  One of the stipulations, however, was that at the hearing "No commentary regarding Islam or Muslims will be permitted." (See prior posting).  Plaintiffs contend that this is an unconstitutional suppression of speech based on its content and viewpoint, is a prior restraint on speech, denies plaintiffs procedural due process, violates the Establishment Clause by favoring Islam over other religions, and violates the 1st Amendment's petition clause. New Jersey Law Journal reports on the decision.

New Jersey Supreme Court Says Grants To Churches Violate State Constitution

In Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders, (NJ Sup.Ct., April 18, 2018), the New Jersey Supreme Court held that historic preservation grants to 12 churches (totaling $4.6 million) violate the Religious Aid Clause of the New Jersey Constitution.  That clause (Art. I, Sec. 3) provides that no person shall be obliged to pay taxes for building or repairing any church. The court concluded that there is no implied exception to this prohibition for historical preservation.

The Court went on to hold that this interpretation does not violate the Free Exercise Clause of the U.S. Constitution:

The [U.S. Supreme Court's] holding of Trinity Lutheran does not encompass the direct use of taxpayer funds to repair churches and thereby sustain religious worship activities. See 137 S. Ct. at 2024 n.3. We therefore find that the application of the Religious Aid Clause in this case does not violate the Free Exercise Clause.

Justice Solomon filed a concurring opinion:

The majority concludes that the present case exceeds the scope of Trinity Lutheran since Morris County’s taxpayer-funded grants “went toward ‘religious uses.’”... However, that conclusion ignores New Jersey’s separate and substantial government interest at stake in this case -- historical preservation. I believe that had Morris County’s program been applied in a fundamentally neutral manner, the Religious Aid Clause could not bar funding to an otherwise qualified religious institution.

FFRF issued a press release announcing the decision.  Daily Record reports on the decision.

Settlement Reached With NYPD In Muslim Surveillance Case

Last week, a settlement agreement (filed in New Jersey federal district court on April 5) (full text) was reached in Hassan v. City of New York. As reported by the New York Times, this settles the last of three major lawsuits challenging the New York City Police Department's surveillance of the Muslim community following 9/11. This suit was brought by Muslims in New Jersey who had been subjects of surveillance.  The 3rd Circuit had refused to dismiss, holding that plaintiffs had adequately stated free exercise and equal protection claims (See prior posting.)  A press release from Muslim Advocates summarizes agreement:

Under the terms of the settlement, the NYPD has confirmed it will reform its discriminatory and unlawful practices by agreeing to:

• Not engage in suspicionless surveillance on the basis of religion or ethnicity;
• Permit plaintiff input to a first-ever Policy Guide, which will govern the Intelligence Bureau’s activities, and to publish the Guide to the public;
• Attend a public meeting with plaintiffs so they can express their concerns about the issues in the lawsuit directly to the NYPD Commissioner or senior ranking official;
• Pay businesses and mosques damages for income lost as a result of being unfairly targeted by the NYPD and pay individuals damages for the stigma and humiliation harms they suffered for being targeted on the basis of their religion.

Unordained Music Minister May Claim NJ Parsonage Exemption

In Clover Hill Reformed Church v. Township of Hillsborough, (NJ Tax Ct., March 23, 2018), the New Jersey Tax court held that, even though he is not ordained, a church's Minister of Music qualifies as an "officiating clergyman" so that he may claim the parsonage exemption from state property tax for the home furnished to him by the church. The court said in part:

Where adherents to a faith have a sincerely held belief that a person is a leader in providing worship services to a congregation, and that belief is corroborated by objective evidence of that person's training, experience, and responsibilities, the courts should hesitate to discount those beliefs because of the absence of an act, such as ordination, the court believes is necessary to impart the status of clergyman. It is not for the judiciary to impose on a religious congregation its view of who is or is not a clergyman in that congregation. The court's only role is to determine whether the legislative objectives expressed in the exemption statute have been met. 

New Jersey Limit On Activities of Religious Cemeteries Is Upheld

In Roman Catholic Archdiocese of Newark v. Christie, (D NJ, Feb. 23, 2018), a New Jersey federal district court rejected due process and equal protection challenges to a 2015 New Jersey law that prohibits private religious cemeteries from selling headstones, vaults and monuments.  The law was enacted to extend to religious ceremonies the separation of industries law that previously applied only to non-religious cemeteries.  AP reports on the decision.

Israeli Rabbinical Judges Immune In State Court At Suggestion of State Department

In Ben-Hiam v. Edri, (NJ App., Feb. 5, 2018), a New Jersey appellate court held that a State Department "suggestion of immunity" in a suit against foreign officials is binding on New Jersey courts when the State Department has found that the foreign officials were acting within the scope of their authority for a foreign sovereign.  At issue is a suit brought in New Jersey against six Israeli rabbinical judges and an official of the Rabbinical Religious Courts Administration of Israel.  The suit grew out of a divorce and child custody dispute filed in Israeli courts by a couple who lived in New Jersey, but were Israeli citizens who were married in Israel and had traveled to Israel when the divorce action was filed.  While the Israeli litigation was pending, the husband (plaintiff in this case) returned to the United States.  Competing custody rulings for the couple's daughter were issued in the U.S. and Israel. The Israeli rabbinical court awarded custody of the daughter to the mother, but was unable to grant a divorce because the husband refused to grant the wife a get (Jewish divorce document).

What happened next is explained by the New Jersey court:

Israeli law gives rabbinical courts the authority to issue certain sanctions to pressure a nonconsenting spouse to give consent to a get. Accordingly, to compel plaintiff to consent to the get, the rabbinical court issued a series of escalating sanctions against plaintiff. Ultimately, the rabbinical court issued an order finding that under Jewish law, plaintiff's refusal was criminal and that Jewish persons must avoid dealing with plaintiff. That rabbinical court order was sent to plaintiff's rabbi in New Jersey, and was published on several websites.

In April 2015, plaintiff filed a civil complaint ... in New Jersey. Specifically, plaintiff contended that defendants aided and abetted in the kidnapping of his daughter, defamed him, and intentionally inflicted emotional distress on him.

Suit Alleges Harassing Stake Out of Jewish Religious Services By Zoning Officials

A Jan. 24 story by GannettNJ reports on a lawsuit filed by Jackson, NJ resident Isaac Tawil who alleges that Township Council Vice President Rob Nixon has prompted zoning code enforcement officers to stake out his home on Friday evenings to observe Jewish religious services there.  The lawsuit alleges that "The repeated presence of these officers had a chilling effect, was intimidating and became a form of harassment."  The suit was filed in the context of increasing tensions between longtime residents and the growing Orthodox Jewish community that is moving into the Township.

Settlement Reached In NJ Mosque Zoning Lawsuit

Jersey Journal reported last week that a settlement has been reached in Bayonne Muslims v. City of  Bayonne, a RLUIPA lawsuit filed in New Jersey federal district court last May. (See prior posting.) Under the settlement, construction of a community center and mosque will be approved by Bayonne's Zoning Board after a revised application is filed and a public meeting is held.  The city will also pay $280,000 for plaintiff's attorneys' fees and an additional $120,000 in damages.

UPDATE: AP reported (March 13) that the Bayonne zoning board gave final approval to the project.