Baptist Children's Home Cannot Challenge Kentucky's Settlement of Establishment Clause Case

Pedreira v. Sunrise Children's Services, (WD KY, May 2, 2013) is the latest installment in the long-running Establishment Clause litigation challenging Kentucky's payments to a Baptist-operated child-care agency to provide residential treatment facilities for abused and neglected children. In March, the state agreed with plaintiffs to settle the case by placing new church-state safeguards in its contracts with child care agencies. (See prior posting.)   However, Sunrise Children's Services, the child-services agency whose practices were at issue, objected to the settlement arguing that the Settlement Agreement imposes obligations on it without giving it the opportunity to litigate the merits further. The court however rejected this argument, saying that new obligations are not imposed on Sunrise.  Instead any new obligations would be ones that Sunrise voluntarily assumes by entering a contract with the state on the new terms that the the state has agreed to include.

Recent Prisoner Free Exercise Cases

In Grissom v. Werholtz, (10th Cir., May 1, 2013), the 10th Circuit rejected an inmate's complaint that his free exercise rights were infringed when, in order to keep his Celtic cross, he was required to change his religious preference from Catholic to Protestant.

In Strother v. Myers, 2013 U.S. Dist. LEXIS 59574 (ED CA, April 24, 2013), a California federal magistrate judge recommended dismissing a Muslim inmate's complaints that  prayer oil was limited to two ounce bottles; the Kufi prayer cap could be worn only to and from services; and the ban on Muslims holding prayer services in the chapel without a staff member present.

In United States v. Bastien, 2013 U.S. Dist. LEXIS 59615 (ED NY, April 19, 2013), a New York federal district court, by way of a lengthy footnote in its decision, held that an inmate had failed to show that the free exercise his Santeria religion was substantially burdened when he was not provided a hut, herbs, incense, and a designated space and time to build a bonfire for religious worship.

In McKenzie v. Riley, 2013 U.S. Dist. LEXIS 60367 (MD AL, April 29, 2013), an Alabama federal district court rejected an inmate's claim that the Alabama Community Notification Act violated his free exercise rights when a church refused him membership on the basis of his status as a convicted sex offender.

In Chau v. Young, 2013 U.S. Dist. LEXIS 62291 (ND CA, April 30, 2013), a California federal district court permitted an inmate to proceed against the chaplain and members of the prison religious review committee with his complaint that he was improperly removed from the Muslim religious service list. Prison officials claimed he was a member of a disruptive and violent group.

In Kleinfeldt v. Gore, 2013 U.S. Dist. LEXIS 62494 (SD CA, May 1, 2013), a California federal district judge rejected an inmate's claim that his free exercise and RLUIPA rights were infringed when he was served inedible kosher meat.

In Cauthen v. Rivera, 2013 U.S. Dist. LEXIS 62472 (ED CA, April 30, 2013), a California federal magistrate judge permitted a Rastafarian inmate to proceed on his free exercise and RLUIPA claims complaining that his request that a body cavity search be conducted outside the view of female officers was refused and his clothes were forcibly cut away so the search could be performed.

In Dayson v. Caruso, 2013 U.S. Dist. LEXIS 62802 (WS MI, May 2, 2013), a Michigan federal district court rejected a free exercise complaint that Native American prisoners were not allowed to possess tobacco and matches in their personal property and were not allowed to engage in smudging in their cells. It also held that RLUIPA does not authorize damage claims against officials in their individual capacities.

In United States v. Hamrick, 2013 U.S. Dist. LEXIS 63095 (ED VA, May 1, 2013), a Virginia federal district court rejected an inmate's attempt to have prison authorities recognize only his adopted Coptic Orthodox Christian name, and also refused to change his name on his judgment and commitment order.

In Whitman v. Washington Department of Corrections, 2013 U.S. Dist. LEXIS 63116 (WD WA, May 1, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 63084, March 20, 2013) and dismissed a Muslim inmate's complaints, holding that Defendants cannot be held liable under RLUIPA for monetary damages and that any request for injunctive relief under RLUIPA is moot because issues relating to the Ramadan meals and vegetarian supplemental snacks were resolved. Plaintiff's complaint about the timing of the Eid-al-Fitr feast was dismissed for failure to exhaust administrative remedies.

North Carolina School Board Member Resigns Over Litigation Risk From Proposal To Open Meetings With Prayer

The Rockingham County, North Carolina Board of Education regularly opens its meetings with a moment of silence.  However, last month the Board engaged in an hour-long discussion of board member Ron Price's proposal to consider opening sessions with a prayer instead.  A vote on the proposal is scheduled for May 13.  According to the Winston-Salem Journal, one member of the school board isn't waiting for the vote. Board member Leonard Pryor announced Friday that he is resigning from the board. In a written statement decrying political polarization of the school board, Pryor said that the vote on prayer could open board members individually to lawsuits, and he is not willing to jeopardize his family's future over the issue.

No RLUIPA Violation In Zoning Denial For Faith-Based Treatment Facility

In Candlehouse, Inc. v. Town of Vestal, New York, (ND NY, May 3, 2013), a New York federal district court rejected a claim by Candlehouse Teen Challenge, a Christian non-profit organization, that the Town of Vestal violated RLUIPA in refusing to waive or change its zoning rules.  Candlehouse sought to use residentially-zoned property for a Christian faith-based residential treatment facility for young women struggling with addiction or emotional disorders. The court concluded that Candlehouse had not shown a close nexus between the denial of its proposed use of the property as a residence for more than 5 unrelated people and its exercise of religion. However the court allowed Candlehouse to move ahead with claims under the Americans With Disabilities Act and the federal Fair Housing Act alleging intentional discrimination and lack of reasonable accommodation.

California Court Says Bishop's Letter Did Not Waive Dennis Canon For Break-Away Parish

In Rasmussen v. Bunyan, (CA Super. Ct., May 1, 2013), a California trial court gave another win to The Episcopal Church in the long-running controversy over ownership of property of the break-away St. James Parish in Newport Beach, California. (See prior posting.)  In this opinion, the court held that a 1991 letter from the Bishop of Los Angeles specifically giving the Parish permission to purchase a piece of property in its own name "and not held in trust for the Diocese of Los Angeles, or the Corporation Sole" was ineffective to amend Canon 1.7.4 of The Episcopal Church (the Dennis Canon) that provides that parish property is held in trust for the Church and the Diocese.  In response to the break-away church's claim of estoppel based on the promises made by the Bishop, the court said:

The representations [in the 1991 letter] were made to St. James Parish and they were true so long as St James Parish remained a subordinate unit of the Diocese and Episcopal Church. They were not made to "St. James Church," the Local Church involved in this action.... Having disavowed affiliation with the Episcopal Church and the Diocese, the Local Church does not stand in the shoes of St. James Parish.

The Anglican Curmudgeon blog has extensive commentary on the decision. [Thanks to Allan Haley for the lead.]

ACLU Sues On Behalf of Westboro Picketers' Use of American Flag In Demonstrations

The ACLU of Iowa announced last month that it has filed a federal lawsuit on behalf of members of the Westboro Baptist Church-- known for its anti-gay picketing of veterans' funerals-- to prevent enforcement against them of Iowa's flag desecration statute (Iowa Code Sec. 718A.1A) that has already been declared unconstitutional.  The complaint (full text) in Phelps v. Red Oak Police Chief Drew Powers, (SD IA, filed 4/18/2013), alleges that police officials in Red Oak and Council Bluffs, Iowa have threatened to enforce the statutes against Westboro picketers who use American flags in their demonstrations. The complaint alleges:

An absence of respect for the United States flag and the elimination of that flag as an idolatrous symbol are core religious tenents of the Westboro Baptist Church, and a part of the religious message that members of that chuch are bound to convey to others in witnessing God's will according to their faith and practice.

In a 2007 case, an Iowa federal district court held that Iowa's flag desecration and misuse statutes were unconstitutionally void for vagueness. However they remain on the books, and Iowa Code Sec. 718A.6 provides that law enforcement officials may be removed from office for failure to enforce them.

Court Upholds Zoning Denial For Jewish School

In Joan Dachs Bais Yaakov Elementary School v. City of Evanston, (IL Cir. Ct. Cook County, April 30, 2013), an Illinois trial court upheld the city of Evanston's refusal to rezone property for use for an Orthodox Jewish elementary school. The court rejected plaintiff's claim for $3 million in damages for violation of the nondiscrimination provisions of RLUIPA. Evanston Now reports on the decision.

Another Small Business Challenge To Contraceptive Coverage Mandate Filed

Yet another lawsuit has been filed by a family-owned business and its major shareholder (who is also president of the company) challenging the Affordable Care Act contraceptive coverage mandate. Plaintiff Lilli Johnson, a Catholic, is a 50% stockholder of the Ohio company that manufactures air brake components; her 7 children own the remaining 50%.  The complaint (full text) in Johnson Welded Products, Inc. v. Sebelius, (D DC, filed 4/30/2012) alleges that the mandate is inconsistent with plaintiffs' Catholic religious beliefs:

As part of its corporate philosophy, JWP and its owners "subscribe to the Golden Rule".... The Golden Rule carries with it the command from Jesus to love one another as He has loved us. And Jesus loved us first and foremost by doing the will of the Father. Consequently, the Golden Rule is a mandate to follow God's law, which the contraceptive services mandate violates.

As part of its corporate philosophy, JWP and its owners "are continually aware that [their] success depends," in large measure, on their "freedom to exist as a private enterprise." This freedom to exist as a private enterprise includes the freedom to operate JWP consistent with the Catholic religious beliefs and convictions of its owners....

The complaint alleges violations of the 1st Amendment, RFRA and the Administrative Procedure Act. American Freedom Law Center announced the filing of the lawsuit.

Rhode Island Becomes 10th State To Legalize Same-Sex Marriage

AP reports that Rhode Island yesterday became the tenth state to legalize same-sex marriage as Gov. Lincoln Chafee signed the bill on the statehouse steps following its final passage by the House earlier in the day.  The new law (full text) includes provisions protecting the right of religious organizations and clergy to make their own decision regarding same-sex marriage:

[E]ach religious institution has exclusive control over its own religious doctrine, policy, and teachings regarding who may marry within its faith, and on what terms.... No court or ... governmental body ... shall compel, prevent, or interfere in any way with any religious institution's decisions about marriage eligibility within that particular faith's tradition....

[N]o regularly licensed or ordained clergyperson, minister, elder, priest, imam, rabbi, or similar official of any church or religious denomination ... is required to solemnize any marriage....

[A] religions organization, association, or society... shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges ... if ... related to:  (1) The solemnization ... or the celebration of a marriage, and such solemnization or celebration is in violation of its religious beliefs and faith; or  (2) The promotion of marriage through any social or religious programs or services, which violates the religious doctrine or teachings of religious organization, association or society.

Divorce Decree's Provision Allowing Mother To Take Children To Sunday School Does Not Violate Establishment Clause

In Roberts v. Roberts, (TX App., May 1, 2013), a Texas appeals court rejected a husband's claim that the divorce decree dissolving his marriage and appointing both parents as joint managing conservators of the children violated the Establishment Clause by requiring him on Sunday mornings when he had the children to allow his former wife to pick them up to take them to religious classes.  The court concluded

Just as the court has discretion to mold the decree to accommodate activities such as soccer games and music lessons if it finds them in the child’s best interest, it may accommodate a parent’s desire for the children’s religious education, provided that it does not favor one parent’s religion over another or over a preference for no religion.

3rd Circuit: Officer-Director of Closely Held Company Is Not Protected Against Religious Discrimination Under Title VII

In Mariotti v. Mariotti Building Products, Inc., (3d Cir., April 29, 2013), the U.S. 3rd Circuit Court of Appeals dismissed a Title VII religious discrimination claim brought by an officer-director-shareholder of a family owned corporation. Plaintiff Robert Mariotti was terminated as an employee and ultimately not re-elected to the board because of objections by other family members-- who were shareholders of the company-- to his "spiritual awakening." Applying the test developed in a parallel situation in the 2003 U.S. Supreme Court decision in Clackamas Gastroenterology Associates, PC v. Wells, the 3rd Circuit concluded that plaintiff's authority and control over the business preclude his being considered an "employee" covered by Title VII. Thompson Reuters reports on the decision.

Today Is National Day of Prayer

As called for by federal law (36 USC Sec. 119), President Obama this week issued a Presidential Proclamation proclaiming today as a National Day of Prayer. The Proclamation reads in part:

All of us have the freedom to pray and exercise our faiths openly. Our laws protect these God-given liberties, and rightly so. Today and every day, prayers will be offered in houses of worship, at community gatherings, in our homes, and in neighborhoods all across our country. Let us give thanks for the freedom to practice our faith as we see fit, whether individually or in fellowship.

Traditionally, the private National Day of Prayer Task Force has planned a ceremony that is held on Capitol Hill.This year the ceremony begins at 9:00 AM at the Cannon  House Office Building. Other ceremonies will be held around the country.

While the chairman of the Task Force for some years has been Shirley Dobson, each year there is also an Honorary Chairman. This year it is Pastor Greg Laurie of Harvest Christian Fellowship in Riverside, California. According to the Christian Post, LGBT advocacy groups such as Human Rights Campaign and OutServe-SLDN object to the choice of Laurie, calling his views "blatantly anti-LGBT."

Canadian Anglican Bishop Is Suing Blogger For Defamation

In Canada, Michael Bird, Bishop of the Anglican Diocese of Niagara, Ontario, has filed a defamation lawsuit against a blogger whose posts, Bird charges, holds him up to ridicule and contempt. According to yesterday's Hamilton Spectator, the lawsuit, which was filed in February, claims that David Jenkins' blog Anglican Samizdat has described Bird as a weak, ineffectual leader, a thief, an atheist and as someone with a sexual fetish. According to a blog posting by Jenkins, the statement of claim cites 31 separate blog postings.  The suit asks for $400,000 in damages and an injunction against Jenkins publishing further comments about Bishop Bird.  In a statement of defense, Jenkins says that many of the postings cited were humor or satire, and that others were fair comment on a public figure.  He says that the lawsuit is attempting to limit his freedom of expression and religion protected by the Canadian Charter of Rights.

Suit Challenges Maryland County's Invocation Policy At Commissioners' Meetings

A lawsuit was filed today in a Maryland federal district court by two residents of Carroll County (MD) challenging the County’s practice of regularly opening the public meetings of its Board of Commissioners with official Commissioner-delivered sectarian prayers.  The complaint (full text) in Hake v. Carroll County, Maryland, (D MD, filed 5/1/2013) alleges that during 2011 and 2012, some 54 Board of Commissioners meetings were opened with prayers that included specifically Christian references, while none of the prayers delivered during that period mentioned non-Christian deities.  The suit seeks a declaratory judgment that this violates the Establishment Clause and asks for an injunction against further sectarian prayers at Board meetings. The American Humanist Association announced the filing of the lawsuit.

Atheist Material To Be Available To Florida County's High Schoolers

The Freedom From Religion Foundation announced yesterday that the Central Florida Freethought Community will be making materials on Atheism available to students in eleven Orange County, Florida high schools tomorrow. The distribution date was chosen because tomorrow is the National Day of Prayer.  According to yesterday's Orlando Sentinel, the school district's legal counsel concluded that the group should be able to make the materials available on the same terms as World Changers of Florida was allowed to hand out Bibles in the schools in February. The materials will be left on a table in the commons area for students to take. Volunteers may not interact with students. While the school district approved several pamphlets, it rejected others that the atheist group wished to make available. A spokesman for the group said they would prefer that religion be exluded from schools, but "if they're going to have a religious discussion on campus, we need to be a part of it." Friendly Atheist blog has additional details. [Thanks to Scott Mange for the lead.]

Hundreds Exchange Vows As Colorado's Civil Union Law Takes Effect

The Denver Post reports that as Colorado's civil union law (see prior posting) took effect just after midnight this morning, hundreds of gay and lesbian couples applied for licences and exchanged vows.  An LGBT advocacy organization paid to have Denver's building housing the Clerk and Records Office open at midnight.  Denver Mayor Michael Hancock performed a number of the first civil union ceremonies, as did U.S. Rep. Diana DeGette, chair of the House of Representatives LGBT Equality Caucus. Municipal judges and clergy were also available to handle the rush of couples.

Survey Released On Views of World's Muslims On Religion, Politics and Society

The Pew Forum yesterday released a 226-page report titled The World's Muslims: Religion, Politics and Society. Based on surveys in 39 countries between 2008 and 2012, it examines the social and political views of Muslims around the world. Here is an excerpt from the Executive Summary:

In all but a handful of the 39 countries surveyed, a majority of Muslims say that Islam is the one true faith leading to eternal life in heaven and that belief in God is necessary to be a moral person. Many also think that their religious leaders should have at least some influence over political matters. And many express a desire for sharia – traditional Islamic law – to be recognized as the official law of their country.

The percentage of Muslims who say they want sharia to be “the official law of the land” varies widely around the world, from fewer than one-in-ten in Azerbaijan (8%) to near unanimity in Afghanistan (99%). But solid majorities in most of the countries surveyed across the Middle East and North Africa, sub-Saharan Africa, South Asia and Southeast Asia favor the establishment of sharia, including 71% of Muslims in Nigeria, 72% in Indonesia, 74% in Egypt and 89% in the Palestinian territories.

At the same time, the survey finds that even in many countries where there is strong backing for sharia, most Muslims favor religious freedom for people of other faiths. In Pakistan, for example, three-quarters of Muslims say that non-Muslims are very free to practice their religion, and fully 96% of those who share this assessment say it is “a good thing.” Yet 84% of Pakistani Muslims favor enshrining sharia as official law. These seemingly divergent views are possible partly because most supporters of sharia in Pakistan – as in many other countries – think Islamic law should apply only to Muslims. Moreover, Muslims around the globe have differing understandings of what sharia means in practice.

Abuse Victims Sue Religious Order

According to the Chicago Tribune, last Friday 31 men filed 3 lawsuits in Illinois state court against the Congregation of Christian Brothers growing out of sexual abuse decades ago at three high schools. Over half of the plaintiffs claim they were abused by a member of the order who was later convicted of indecent behavior in Washington state. The suit claims that the order shuffled this priest to the 3 high schools involved here.  A number of members of the order and two laymen are also named as defendants. The Christian Bothers filed for federal bankruptcy protection in April 2011. These plaintiffs filed their claims with the bankruptcy court, but so far have received no compensation.

USCIRF Issues 2013 Annual Report

The U.S. Commission on International Religious Freedom today transmitted to the President, Secretary of State and Congressional leaders its Annual Report on religious freedom around the world. The report, which covers the period from Jan. 31, 2012 to Jan. 31, 2013, recommends that the Secretary of State re-designate 8 countries as "countries of particular concern" (CPCs) under the International Religious Freedom Act-- Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan. It also recommended that 7 other countries be newly designated as CPCs-- Egypt, Iraq, Nigeria, Pakistan, Tajikistan, Turkmenistan, and Vietnam. CPCs are those countries in which the most egregious violations of religious freedom have occurred. In Appendices, the Report sets out detailed lists of Bahai and Christian prisoners in Iran; prisoners in Pakistan who have been sentenced to death or life in prison for violation of blasphemy laws; and prisoners in Uzbekistan arrested or sentenced due to their Muslim religious activities.

USCIRF recommends that 8 other countries be placed in Tier 2, as countries where there are increasing violations of religious freedom-- Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos, and Russia. The Tier 2 designation replaces the "Watch List" that appeared in prior USCIRF Annual Reports.

Finally the Report reviews 7 other countries and regions that USCIRF is monitoring because of religious freedom concerns-- Bahrain, Bangladesh, Belarus, Ethiopia, Turkey, Venezuela, and Western Europe.  In its review of Western Europe, the Report says:

During the past few years there have been increasing restrictions on, and efforts to restrict, various forms of religious expression in Western Europe, particularly religious dress and visible symbols, ritual slaughter, religious circumcision, and the construction of mosques and minarets. These, along with limits on freedom of conscience and hate speech laws, are creating a growing atmosphere of intimidation against certain forms of religious activity in Western Europe. These restrictions also seriously limit social integration and educational and employment opportunities for the individuals affected.

The Report also urges the State Department to do more to implement the International Religious Freedom Act, including developing with the Department of Homeland Security a lookout list of aliens who should be denied admission because they are responsible for severe violations of religious freedom.

Holder Speaking To ADL Commits To Protect All Religious and Ethnic Minorities

Attorney General Eric Holder yesterday spoke (full text of remarks) at the Anti-Defamation League's Centennial Summit in Washington, D.C.  In the wake of the Boston Marathon bombings, Holder emphasized the government's commitment to combating those who threaten members of any religious minority.  He said in part:

Although many forms of racial and ethnic prejudice may not be as widespread, or as institutionalized, as they were 100 years ago, a recent ADL report shows that anti-Semitism may once again be on the rise in a number of countries around the world.  By any measure, it remains disturbingly persistent in the United States, with more than 1,000 documented incidents in 2011 alone....

Then, after speaking of the government's ongoing investigation of the Boston bombings, Holder emphasized:

just as we will pursue relentlessly anyone who would target our people or attempt to terrorize our cities – the Justice Department is firmly committed to protecting innocent people against misguided acts of retaliation. 

In the dozen years since 9/11, this commitment has led the Department to investigate more than 800 incidents involving threats, assaults, and acts of vandalism and violence targeting Muslims, Arabs, Sikhs, South Asians, and others who are perceived to be members of these groups....

Only by forging close bonds between these groups can we ensure the safety – and the civil rights – of everyone in this country who may be targeted simply because of who they are, how they look, or what they believe.  And only by taking action to address discrimination and preserve religious liberty can we extend these rights to every individual or community of faith whose freedoms – or lives – are threatened.