State Prison Includes Private Bible College

The New York Times today reports on a Southern Baptist Bible College that operates inside the Louisiana State Penitentiary. So far it has 241 graduates, mostly lifers, including 15 Muslims who took the same courses but minister to Muslim inmates. In addition it has granted hundreds of certificates or associate degrees to men who then can act as informal counselors. The college has structured its operations to avoid church-state problems-- it is privately funded, voluntary and admits non-Christians.

School Jesus Portrait Case Settled

The Columbus Dispatch reports today that an Ohio federal district court has accepted a settlement in Doe v. Jackson City School District. The suit (see prior posting) was an Establishment Clause challenge to a portrait of Jesus displayed on an entrance wall at a Jackson, Ohio Middle School. In April, the school had agreed to take down the picture, but plaintiffs alleged that it was still in view of those entering an art-room storage area. Under the settlement, the school board has agreed to keep the picture off of school district property.  It is also paying $3000 damages to each of the 5 anonymous plaintiffs, and $80,000 in attorneys' fees to the ACLU and Freedom From Religion Foundation.

Florida Prison Authorities Allow Jewish Prisoner To Be Circumcised

Stanford Law School's Religious Liberty Clinic, in a release distributed by e-mail, reports that the Florida Department of Corrections, under threat of a RLUIPA lawsuit, has agreed that Jewish prisoner Pablo Diaz can be circumcised while in prison. The case, as described by the release, involves an unusual factual situation:

[Diaz] was born in Cuba to Jewish parents who decided not to have him circumcised as an infant for fear of political persecution. After returning to the faith as an adult through participation in prison ministry, Diaz petitioned tirelessly for the right to take part in the sacred ritual. Diaz viewed circumcision as indispensable to his standing before God. His request was supported by a mohel who offered to perform the procedure for free.

(See prior related posting.)

Council of Europe's Parliamentary Assembly Calls For Regulation of Ritual Circumcision

Last Tuesday, the Council of Europe's Parliamentary Assembly adopted Resolution 1952, Children's Right To Physical Integrity, and a related Recommendation to members. The Resolution provides in part:

The Parliamentary Assembly is particularly worried about a category of violation of the physical integrity of children, which supporters of the procedures tend to present as beneficial to the children themselves despite clear evidence to the contrary. This includes, amongst others, female genital mutilation, the circumcision of young boys for religious reasons, early childhood medical interventions in the case of intersexual children and the submission to or coercion of children into piercings, tattoos or plastic surgery....

The Assembly therefore calls on member States to:

...take the following measures with regard to specific categories of violation of children’s physical integrity:

...publicly condemn the most harmful practices, such as female genital mutilation, and pass legislation banning these.... 

clearly define the medical, sanitary and other conditions to be ensured for practices which are today widely carried out in certain religious communities, such as the non-medically justified circumcision of young boys....

According to the Jerusalem Post:

Large majorities rejected five amendments that sought to remove or alter references to the circumcision of boys. An amendment that removed a reference to the “religious rights of parents and families” was supported by a large majority of members.

The Resolution and Recommendation are not binding on EU members. Among reactions to the resolution are those of Brendan O'Neill at The Telebraphand Eugene Kontorovich at Volokh Conspiracy.

In Contraceptive Mandate Case, Court Allows Only Limited Delay For DOJ Because of Government Shut-Down

In Priests For Life v. U.S. Department of Health and Human Services, (D DC, Oct. 2, 2013), a D.C. federal district court denied the government's motion for a Stay of Litigation in Light of a Lapse of Appropriations in a suit challenging the final rules on application of the Affordable Care Act contraceptive coverage mandate to non-profit religious organizations. The Department of Justice sought the stay because DOJ attorneys, except in limited circumstances, are barred from working during the current government shut-down. However since previously the parties had agreed on various streamlining procedures conditioned on a court decision by December 31, the court concluded that only a limited extension of the briefing schedule would be granted. The government must now file its response to plaintiff's motion by Oct. 17. ACLJ issued a press release on the ruling. (See prior related posting.)

IRS Asks For Input On Form 1023 Used By Applicants for Non-Profit Tax Status

The Internal Revenue Service published in the Oct. 1 Federal Register a Notice and Request for Comments on changes that should be made in Form 1023, the form used by non-profit organizations to apply for Section 501(c)(3) status. The Notice also asks for comment on the burdens imposed by the Form.  Comments are due by Dec. 2.

NY Methodist Hospital Not Religious Institution For Ministerial Exception Doctrine or RFRA

Penn v. New York Methodist Hospital, 2013 U.S. Dist. LEXIS 142109 (SD NY, Sept. 30, 2013), is in part a Title VII discrimination and retaliation lawsuit by a former part-time staff chaplain at New York Methodist Hospital. Among its defenses, the hospital asserted the ministerial exception doctrine. The court rejected the defense however because of a lack of evidence that the hospital is a religious institution or is religiously affiliated. In 1975, the hospital had amended its articles of incorporation to delete provisions relating to its relationship with The United Methodist Church.  For the same reason, the Religious Freedom Restoration Act does not bar commencement of the action.

10th Circuit Tells District Court To Abate Proceedings In Contraceptive Mandate Case Until SCOTUS Disposes of Hobby Lobby

In Newland v. Sebelius, (10th Cir., Oct. 3, 2013), the U.S. 10th Circuit Court of Appeals held that a district court did not abuse its discretion in granting a preliminary injunction against enforcement of the Affordable Care Act contraceptive coverage mandate to a small business and its Catholic owners and officers who object to the mandate on religious liberty grounds. (See prior posting.) The court remanded the case to the district court, but ordered it to abate proceedings until the U.S. Supreme Court completes its consideration of the Hobby Lobby case in which a petition of certiorari has been filed. (See prior posting.)

Mosque Wins Preliminary Injunction Barring Enforcement of Zoning Change

In Al Falah Center v. City of Bridgewater, (D NJ, Sept. 30, 2013), a New Jersey federal district issued a preliminary injunction against enforcement of a zoning law change enacted quickly after a Muslim group applied for a permit to construct a mosque on land it had acquired. The new ordinance barred houses of worship on the newly-acquired land.  The court found a likelihood of success as to plaintiff's RLUIPA substantial burden claim. The court also denied defendants' motion for summary judgment on free exercise, equal protection and RLUIPA claims. The Newark Star-Ledger reports on the decision. Brennan Center has further background and links to pleadings in the case.

Recusal Motion Rejected In Milwaukee Archdiocese Reorganization Case

In In re Archdiocese of Milwaukee, 2013 U.S. Dist. LEXIS 141658 (ED WI, Oct. 1, 2013), Wisconsin federal district court judge Rudolph Randa denied a motion to recuse himself and vacate his earlier decision that a $55 million cemetery perpetual care trust fund is unavailable to creditors, including abuse victims, in the bankruptcy reorganization of the Milwaukee Catholic Archdiocese. (See prior posting.) The motion was based on the fact that in 1975 the judge had purchased a burial crypt for his parents in one of the Catholic Archdiocese's cemeteries. In denying the motion, Judge Rnada said in part:

Aging and death are facts of life, not just for judges. Over 500,000 individuals are interred in the Milwaukee Catholic Cemeteries, so my relation to some of those individuals is a characteristic that I share with countless members of this community. The logical conclusion of the Committee‟s argument is that none of these people could render an impartial decision this case. This is untenable, and it is objectively unreasonable.

The Milwaukee Journal-Sentinel reports on the decision.

Recent Prisoner Free Exercise Cases

In Conway v. Purves, 2013 U.S. Dist. LEXIS 112424 (ED MI, Aug. 9, 2013), a Michigan federal district court denied as moot Muslim inmates  challenges the nutritional adequacy of the meals provided during Ramadan 2013.The magistrate's recommendation in the case is at 2013 U.S. Dist. LEXIS 138997, July 18, 2013.

In Entler v. Knox, 2013 U.S. Dist. LEXIS 138837 (WD WA, Sept. 26, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 138838, Aug. 14, 2013)  and dismissed complaints by an inmate who was an adherent of the Essene Assembly of god that his rights were violated when authorities confiscated his religious headdress (made from a white t-shirt) and required him to wear his crucifix inside his clothing.

In Cotton v. Cate, 2013 U.S. Dist. LEXIS 138923 (ND CA, Sept. 24, 2013), a California federal district court held that an inmate who was an adherent of Shetaut Neter may proceed with his claims against the prison chaplain for failing to respond to his request for religious services, items for worship and access to a chaplain of his religion.

In Johns v. Lemmon, 2013 U.S. Dist. LEXIS 139132 (ND IN, Sept. 27, 2013), an Indiana federal district court ruled in favor of a Jewish inmate who, for religious reasons, wants his meals for Saturday delivered to him on Friday before the beginning of the Sabbath.

In Infinite Allah v. Commonwealth of Virginia, 2013 U.S. Dist. LEXIS 139238 (WD VA, Sept. 27, 2013), a Virginia federal district court held that there are issues of fact that preclude the award of summary judgment for the state in a suit by an inmate seeking recognition for his religious group, the Nation of Gods and Earths.

In Johnson v. Nevada ex rel. Board of Prison Commissioners, 2013 U.S. Dist. LEXIS 139426 (D NV, Sept. 26, 2013), a Nevada federal district court, rejecting in part a magistrate's recommendation (2013 U.S. Dist. LEXIS 139422, July 10, 2013), permitted an Orthodox Christian inmate to proceed with his claim for injunctive relief in order to receive kosher meals.

In Wilson v. Sabatka-Rine, 2013 U.S. Dist. LEXIS 139754 (D NE, Sept. 27, 2013), a Nebraska federal district court permitted a Wiccan inmate to proceed with his complaint that authorities confiscated his Tarot Cards and Gemstones. However the court dismissed claims of various other interferences with his ability to practice his Wiccan religion.

In Clay v. Steele, 2013 U.S. Dist. LEXIS 140056 (ED MO, Sept. 30, 2013), a Missouri federal district court dismissed a claim by an inmate who described his religion as Al-Islam that his rights were violated when he was not served meat as part of his religious diet.

Pennsylvania Same-Sex Marriage Ban Challenged In State Court

The Legal Intelligencer reported last week that 21 couples have filed a lawsuit in Pennsylvania's Commonwealth Court challenging the constitutionality of the state's ban on same-sex marriage.  The suit comes on the heels of  a challenge in federal court filed in July by the ACLU. (See prior posting.) Plaintiffs in the most recent case are couples who were issued marriage licences by Montgomery County clerk D. Bruce Hanes who began issuing them in July, despite the ban in state law. (See prior posting.)

10th Circuit Requires Strict Notice For Religious Accommodation, Ruling In Favor of Abercrombie & Fitch

In EEOC v. Abercrombie & Fitch Stores, Inc., (10th Cir., Oct. 1, 2013), the U.S. 10th Circuit Court of Appeals ruled in favor of Abercrombie & Fitch in a case in which a Muslim applicant for employment who wore a hijab (Muslim headscarf) to her employment interview was not hired. The EEOC claimed that Abercrombie failed to provide reasonable religious accommodation to Samantha Elauf whose hijab conflicted with Abercrombie's "look policy."  The court held that the EEOC had failed to show that Elauf had informed Abercrombie that she wore her hijab for religious purposes and that she needed a religious accommodation due to a conflict with Abercrombie's clothing policy. In describing a strict notice requirement, the majority said:

[E]ven if an employer was generally aware of the beliefs and observances that are traditionally associated with a particular religious group, and also knew that the applicant or employee displayed symbols associated with that group—or even that the applicant or employee specifically claimed to be a member of that group—ordinarily, the employer would still not know whether the conflicting practice in question actually stemmed from religious beliefs unless the particular applicant or employee informed the employer, because under Title VII ... religion is a uniquely personal and individual matter. ...

[E]ven if an employer has particularized, actual knowledge of the religious nature of the practice—that is, knowledge that the practice of a particular applicant or employee stems from his or her religious beliefs—that still would not be sufficient information to trigger the employer’s duty to offer a reasonable accommodation. That is because the applicant or employee may not actually need an accommodation. In other words, an applicant or employee may not consider his or her religious practice to be inflexible; that is, he or she may not feel obliged by religion to adhere to the practice.

Judge Ebel dissented in part, concluding that the case should be remanded for a jury trial. [Thanks to Steven H. Sholk for the lead.]

Anti-Gay Pastor Will Run For Governor Of Massachusetts

In Massachusetts, controversial anti-gay pastor Scott Lively announced in a press release on Monday that he will run for governor of the state, although he conceded that "it would take a miracle from God" for him to win.  Activists have sued Lively for fomenting anti-gay repression in Uganda. (See prior posting.) Explaining why he will run, Lively said in part:

The people of this state need a candidate who can clearly and unapologetically articulate Biblical values without fear or compromise. They need a candidate who will tell the simple truth that abortion is murder, and homosexuality is condemned by God (but that Jesus forgives and heals those who repent). That parents and not the state have authority over their children, because government is our servant and not our master. That socialism is slavery and humanism breeds corruption. But mostly they need a leader who will remind the people that Massachusetts was founded upon Jesus Christ and the Bible and that our future security and prosperity depend on restoring our trust in Him. “Blessed is the nation whose God is the Lord!” Psalm 33:12.

Edge yesterday reported on Lively and his decision to run.

3rd Circuit Upholds Sentence Imposed On Rabbi For Money Laundering

In United States v. Fish, (3rd Cir., Oct. 1, 2013), the U.S. 3rd Circuit Court of Appeals upheld a 46 month prison sentence imposed on a Brooklyn, New York rabbi who, in a plea agreement, plead guilty to one count of conspiracy to commit money laundering. (See prior posting.) The Orthodox rabbi, Mordchai Fish, was part of a scheme to launder money through tax exempt Jewish charities. The appeals court agreed with the trial court that the criminal activity qualified as sophisticated money laundering that called for a two-level sentencing enhancement under the federal Sentencing Guidelines. AP reports on the decision.

Arizona Appeals Court Upholds School Voucher Program

In Niehaus v. Huppenthal, (AZ App., Oct. 1, 2013), the Arizona Court of Appeals upheld against state constitutional challenge Arizona's Empowerment Scholarship Accounts program that provides school vouchers for students with disabilities. Parents can apply the scholarship money to any of eleven permissible uses, including tuition at private and parochial schools. The court held that the program does not violate Article 2, Section 12, of the Arizona Constitution that provides "n]o public money . . . shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment."  The court held:

The ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion. Any aid to religious schools would be a result of the genuine and independent private choices of the parents.

Nor does the program violate Article 9, Section 10 of the Arizona Constitution that provides: "[n]o tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation." Here, according to the court: "The specified object of the ESA is the beneficiary families, not private or sectarian schools."

The Arizona Daily Star reports on the decision.

Key Claims Of Favoritism To Jewish Private Schools Can Move Ahead

The Lower Hudson Journal News reports that on Monday, a New York federal district court dismissed a number of claims in a class action lawsuit against East Ramapo, NY school officials, but allowed key claims to move ahead. According to the report:

The lawsuit can now confront several of the most divisive issues in East Ramapo, including the placement of Hasidic and other Orthodox [Jewish] students in private special-education schools at public expense, the alleged purchase of religious textbooks for private schools, and whether the school board tried to sell two schools at below-market rates.

[The judge] also allowed the lawsuit to look at whether the school board hired Long Island-based lawyer Albert D’Agostino in 2009 as part of a conspiracy to place special-education students in private schools in a manner that forfeits state reimbursements.

The school district has long had tension between public school parents and the school board which they accuse of favoring Orthodox Jewish private schools. (See prior posting.)

Suit On Use Of Community Rooms For Religious Programs Settled

Liberty Counsel announced yesterday that a settlement has been reached in its lawsuit against Plainfield, Illinois, over policies that barred use of Community Rooms for a dozen specific types of activities including use for "Religious services or other religious purposes." The lawsuit (see prior posting) challenged the refusal to allow Liberty Counsel to use a room for an educational program promoting a Christian view of the founding of America. Under the settlement, the city will now allow the program, and will also change its policies to provide: "The Village does not prohibit an applicant from presenting civic, cultural, educational or informational programs from a religious viewpoint."

Disgruntled Church Member Can Proceed On Various Claims Against Church and Its Personnel

In Zhelezny v. Olesh, (OH App., Sept. 30, 2013), an Ohio state appellate court reversed in part a trial court's dismissal of a suit by a disgruntled former church member against the church, its pastors and various of its members.  Apparently the former church member, Vladimir Zhelezny, protested publicly against the church and its pastor in ways that led to heated arguments and physical confrontations.  As a result the pastor sent Zhelezny a letter in 2008 restricting his access to the church for one year, and then extended the ban for a second year.  After a 2010 altercation, a deputy sheriff removed Zhelezny from church premises and filed criminal trespass charges that were eventually dismissed.  Subsequently Zhelezny was involved in another physical confrontation at the church. Zhelezny sued alleging assault and battery; extortion;  malicious prosecution; violation of civil rights; civil conspiracy; and  intentional infliction of emotional distress.

The court held that the trial court erroneously relied on the ban letters in dismissing on the pleadings malicious prosecution and assault and battery claims, since the letters were not made part of the pleadings. The trial court also erred in dismissing most of the other state law claims on ecclesiastical abstention grounds. They can be decided without a need to examine purely ecclesiastical issues. However the federal civil rights conspiracy claims would require interpretation of ecclesiastical documents, which a civil court may not do.

Magistrate Rules On Admissibility of Expert Opinion In Negligent Supervision Suit Against LDS Church

In A.R. v. Corporation of the President of the Church of Jesus Christ of Latter-day Saints, 2013 U.S. Dist. LEXIS 140679 (D CO, Sept. 30, 2013), a Colorado federal magistrate judge ruled on an expert's qualifications and the portions his report that are admissible in a lawsuit charging the LDS Church with negligent hiring, negligent supervision, breach of fiduciary duty, and outrageous conduct.  The suit was filed by a 15-year old who had sexual relations with a 40-year old LDS Sunday school teacher who, she subsequently found out through Facebook, was engaged to another woman. The teacher, who has plead guilty to sexual assault, is also being sued. In assessing the expert's qualifications, the court said in part:

... [A]bsent any proof that there is a specific standard of care that applies to churches who are hiring Sunday school teachers, Mr. Isenstadt is qualified to render an opinion regarding the limited topic of the desirability of conducting a background check as part of hiring practices in general.