Brazilian Legislator Speaking At Evangelical Rally Orders Arrest For Lesbian Kiss In Audience

Global Voices reported last week on a Sept. 15 incident in Brazil in which police arrested two young women who stood on their chairs and demonstrably kissed each other romantically during an evangelical event in the city of São Sebastião.  Pastor Marco Feliciano, a Brazilian congressman and president of the House Commission for Human Rights and Minorities, interrupted his presentation to the audience of 70,000 to order police to arrest the two women. He told the audience: "This here isn't palace where anything goes, It’s the house of God."  Subsequently Feliciano justified his actions on Twitter, saying that the women were violating Art. 208 of the Brazilian Penal Code that prohibits disturbing a ceremony or practice of religious worship.

Faith Healing Mother's Conviction Upheld In Tennessee

In State of Tennessee v. Crank, (TN Ct. Crim. App., Sept. 26, 2013), the Tennessee Court of Criminal Appeals affirmed the conviction of Jacqueline Crank on one charge of child abuse or neglect related to the 2002 death of her teenage child.  The mother turned to prayer instead of medical treatment for her daughter who eventually died of cancer.  Tennessee has an exemption (TN Stat 39-15-402(c)) from child abuse charges for treatment  "through prayer alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner thereof in lieu of medical or surgical treatment." This exemption was apparently too narrow to cover Crank's attempts at faith healing.  Crank argued that this exemption is vague, and violates the Establishment Clause and equal protection clause, apparently attempting to get the court for that reason to strike down the entire child neglect statute. The court held, however, that even if the exemption is unconstitutional, it would just strike it from the law and uphold the remainder of the child neglect statute.  The court also refused to apply the Tennessee Preservation of Religious Freedom Act to the case because it was not enacted until several years after the prosecution in this case was commenced.

Sikhs In U.S. Continue To Be Stereotyped As Terrorists Because of Their Turbans

Last week the ACLU sent a letter (full text) to top officials of the Mississippi Department of Transportation complaining about mistreatment of a Sikh truck driver by DOT officers who told him that his kirpan was illegal. One officer taunted him, declaring that Sikhs are depraved and terrorists. Ultimately he was arrested for failing to obey an officer's command. As reported by an ACLU press release, when the truck driver returned to Mississippi for his court date, the judge ordered him ejected from the courtroom for wearing a turban, calling it a "rag," and delayed his hearing to the end of the day. All of this generated a Justice Department investigation and a revision of county non-discrimination policy. The ACLU also plans to file an ethics complaint against the judge.

Meanwhile, according to Arutz Sheva yesterday, the Sikh Coalition has asked major U.S. retailers to remove from their shelves Halloween masks of Osama bin-Laden wearing a turban, fearing that Sikhs are being stereotyped as terrorists because of their turbans. The action comes after last weekend's attack in New York on Columbia University faculty member Dr. Prabhjot Singh who was surrounded by a large group of teens shouting "get Osama" and "terrorist". [Thanks to Jack Levey for the lead.]

Recent Prisoner Free Exercise Cases

In Ford v. Palmer, (2d Cir., Sept. 24, 2013), the Second Circuit reversed the district court's dismissal of a Muslim inmate's retaliation claim. Plaintiff claims a corrections officer threatened to poison him for his reporting the officer's failure to provide him with hot water for his Ramadan breakfast.

In Williams v. Secretary Pennsylvania Department of Corrections, (3d Cir., Sept. 26, 2013), the Third Circuit affirmed the dismissal of a complaint by a Muslim inmate about the presence of a Christmas tree and Christmas wreaths in the interfaith chapel where Muslims held their weekly Jumu'ah services. The tree was placed in the back of the chapel during Muslim services.

In Gross v. Hartley, 2013 U.S. Dist. LEXIS 135012 (ED CA, Sept. 20, 2013) and Belmont v. Hartley, 2013 U.S. Dist. LEXIS 135008 (ED CA, Sept. 20, 2013), a California federal magistrate judge dismissed, with leave to amend, Muslim inmates' complaint that Muslims could use the prison chapel for prayer only when scheduled by the chaplain, and not at other times only with intermittent custodial coverage.

In Jones v. Washington, 2013 U.S. Dist. LEXIS 135067 (WD WA, Sept. 20, 2013), a Washington federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 135082, Sept. 5, 2013) and dismissed, with leave to amend, a Muslim inmate's complaint of religious discrimination and violation of his free exercise and free speech rights when his extended family visits were suspended after officials discovered he was involved in a "romantic" pen pal relationship with someone other than his wife. He was also told to end the pen pal relationship.

In Thomas v. McDaniel, 2013 U.S. Dist. LEXIS 134830 (D NV, Sept. 19, 2013) a Nevada federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 135090, July 22, 2013) and refused to grant summary judgment to a Muslim inmate who claimed that authorities kept him in administrative segregation without a proper hearing in retaliation for his insisting on participating in Muslim group worship, and that this violated his free exercise and equal protection rights.

In Cebertowicz v. Love, 2013 IL App (5th) 120273-U (IL App., Sept. 24, 2013), an Illinois state appellate court upheld dismissal of a Catholic inmate's free exercise claim, finding that he had not alleged facts suggesting that the denial of a meatless diet on all Fridays and Ash Wednesday substantially burdened his free exercise rights.

In Womble v. Berghuis, 2013 U.S. Dist. LEXIS 135443 (WD MI, Sept. 23, 2013), a Michigan federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 136713, Aug. 21, 2013) and refused to grant summary judgment to defendants in a Buddhist prisoner's complaint that he was wrongly taken off a strict vegan diet after a correctional officer inaccurately reported he had been seen eating eggs.

In Weaver v. Amato, 2013 U.S. Dist. LEXIS 136102 (ND NY, Sept. 24, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 136561, May 31, 2013) and dismissed plaintiff's complaint, stated in general terms, that involuntary protective custody inmates are precluded from practicing religion.

In Johns v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 135239 (WD MI, Sept. 23, 2013), a Michigan federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 136893, May 31, 2013) and upheld the denial of a vegetarian diet to a Nation of Islam inmate who changed his religious preference to Buddhist. The denial was based on the inmate's answers to three questions about Buddhism and a vegetarian diet, as well as on his record of food purchases.

In Smith-Bey v. Dodd, 2013 U.S. Dist. LEXIS 137363 (SD IN, Sept. 25, 2013), an Indiana federal district court dismissed free exercise and RLUIPA claims by a Muslim inmate (a member of the Moorish Science Temple of America) who objected to confiscation of a prayer rug, two bottles of prayer oil and prayer socks, as well as to the requirement that prayer oil be purchased from the prison commissary.

Developments In Religious Accommodation In Employment Lawsuits

The Sacramento Bee reported Friday that an Elk Grove, California car dealership, Maita Chevrolet, has settled a religious accommodation lawsuit brought against it by the EEOC. The suit claimed that Maita insisted on scheduling car salesman Anthony Okon, a Nigerian immigrant and Seventh-day Adventist, for Friday night and Saturday work shifts, and eventually fired him when he continued to take leave on Friday nights and Saturdays. Maita will pay its former employee $158,000, and will revise its personnel policy manual and undertake other training and reporting obligations.

Al.com reported last week that the city of Birmingham, Alabama has agreed to settle a Justice Department lawsuit against it claiming that it discriminated against a former public safety dispatcher on religious grounds.  The former employee,  Renee Gunn, who is an adherent of Messianic Judaism, resigned after the city insisted on scheduling her to work on her Sabbath.  Under the settlement, which must still receive court approval, the city will pay Gunn $80,000 in back wages and damages, and will rehire her with a work schedule that does not require her to work on her Sabbath.

The Laurinburg Exchange reported last week that the EEOC has has filed suit against two corporations that operate a chain of Kentucky Fried Chicken Restaurants in North Carolina and South Carolina for refusing to accommodate the religious beliefs on an employee.  Sheila Silver, a convert several years ago to the Pentecostal faith, was fired by Scottish Food Systems Inc. and Laurinburg KFC Take Home Inc. when she insisted on wearing a skirt instead of the pants required by the company's dress code.

Alabama Police Enlist Christian Pastors To Aid At Crime Scenes

The Atlantic last week reported on a new program instituted by the Montgomery, Alabama police department which places Christian pastors at crime scenes to counsel victims and witnesses, and pray with them. The department's chaplain acknowledges an evangelistic element in the program that is aimed largely at the city's black community. Its aim is to reduce Montgomery's murder rate, but the constitutionality of the program is questionable. Similar programs are apparently already functioning in Dayton, Ohio and Arlington, Texas. [Thanks to Scott Mange for the lead.]

Suit Challenges Kansas' Adoption of National Science Standards

Citizens for Objective Public Education (COPE) on Friday announced that it has filed a federal lawsuit challenging the adoption by the Kansas State Board of Education of the National Academy of Sciences Framework for K-12 Science Education  and the Next Generation Science Standards based on that Framework. The complaint (full text) in COPE v. Kansas State Board of Education, (D KA, filed 9/26/2013) contends that these:

will have the effect of causing Kansas public schools to establish and endorse a non-theistic religious worldview ... in violation of the Establishment, Free Exercise, and Speech Clauses of the First Amendment, and the Equal Protection Clauses of the 14th Amendment....

The F&S take impressionable children, beginning in Kindergarten, into the religious sphere by leading them to ask ultimate religious questions like what is the cause and nature of life and the universe - "where do we come from?"...

Instead of explaining to students that science has not answered these religious questions, the F&S seek to cause them to accept that controversial materialistic/ atheistic answers are valid.

The Huffington Post, reporting on the lawsuit, describes it as a suit by an anti-evolution group challenging a science curriculum that teaches evolution.

Recent Articles of Interest

From SSRN:

• Hassan J. Ndzovu, Is the Inclusion of the Kadhi Courts in the Kenyan Constitution Against the Principle of a Secular State?, (September 18, 2013).
• Iain T. Benson, The Search for Pluralism in the Writings of Said Nursi and John Courtney Murray: Prophetic Pluralism in Islam and Roman Catholicism, (September 19, 2013).
• Olga Litsenberger, German Lutherans and Catholics in Russia: Settling, Population Changes, Peculiarities of Integration and Adaptation, (July 8, 2013).
• Iain T. Benson, Law Deans, Legal Coercion and the Freedoms of Association and Religion in Canada, (The Advocate, Vol. 71, Part 5, pp. 671-675, September 2013).
• Iain T. Benson, Religious Interfaith Work in Canada and South Africa with Particular Focus on the Drafting of the South African Charter of Religious Rights and Freedoms, (HTS Teologiese Studies/Theological Studies, 69(1), July 2013).
• John Obi Ifediora, The Blood Libel Legend: Its Longevity and Popularity, (August 31, 2013).
• B. Jessie Hill, Anatomy of the Reasonable Observer, (79 Brooklyn Law Review (Forthcoming)).
• Adis Duderija, Maqāsid Al Shari Ah, Gender Egalitarian Qur’Ānic Hermeneutics and the Reformation of Muslim Family Law, (in Maqasid Al Shari’ah and Contemporary Muslim Reformist Thought, ed. Adis Duderija, Palgrave 2014, Forthcoming).
• Adis Duderija, Neo-Traditional Salafis in the West: Agents of (Self)-Exclusion, (in Samina Yasmeen, Muslims in the West and Social Exclusion, Ashgate, 2014, Forthcoming).
• Alex Reed, Subsidizing Hate: A Proposal to Reform the Internal Revenue Service's Methodology Test, (Fordham Journal of Corporate and Financial Law, Vol. 17, p. 824, 2012). 

From SmartCILP:

• John Infranca, Institutional Free Exercise and Religious Land Use, 34 Cardozo Law Review 1693-1750 (2013).

In Split Decision, South Carolina High Court Says Trustees' Defamation Suit Against Pastor Can Proceed

In a 3-2 decision in Banks v. St. Matthew Baptist Church, (SC Sup. Ct., Sept. 25, 2013), the South Carolina Supreme Court held that a defamation lawsuit by former trustees of a church against the church's pastor can proceed under the "neutral principles of law" approach without violating the First Amendment.  In the case, the trustees complained that at a congregational meeting, the pastor falsely charged them with mismanagement of funds, failing to insure an apartment building purchased with church funds and placing a mortgage on church property without his knowledge.

Chief Justice Toal and Justice Kittredge dissenting argued:

the Trustees ignore the pertinent facts that the alleged defamation took place during a congregational meeting and that the allegedly defamatory statements directly concerned their continued leadership, both financial and spiritual. Thus, the dispute here involved integral components of ecclesiastical governance.

In Illinois Challenge To Same-Sex Marriage Ban, Court Allows Further Proceedings On Equal Protection and Due Process Challenges

In Darby v. Orr, (IL Cir. Ct., Sept. 27, 2013), an Illinois state trial court gave a substantial victory to proponents of same-sex marriage in the state.  First the court held that the same-sex marriage ban is not facially neutral and that plaintiffs have alleged facts which, if proven at trial, would establish that they belong to a suspect or quasi-suspect class protected by the state constitution's equal protection clause.  It also allowed plaintiffs to move ahead on their due process challenge, holding that "the present case allows the Illinois courts to consider, for the first time, whether the concept of choice as an aspect of the fundamental right to marry ... might apply to same-sex couples seeking to marry." The court however dismissed plaintiffs claims that the same-sex marriage ban amounts to unconstitutional sex discrimination, violates the right to privacy protected by the state constitution and violates the special legislation ban in the state constitution. The Chicago Tribune reports on the decision.

A Kansas School Board Votes To Allow Student-Led Prayer At All Activities

At its Sept. 23 meeting, The Kansas USD 480 School Board (in Liberal Kansas) voted unanimously "to allow student led prayer at all USD 480 activities." (Board minutes). Last Tuesday's High Plains Leader & Times reported on the move:

Several years ago, LHS discontinued prayer at events like football games. Administration voiced concern that, by making the P.A. system available for prayers led by students or community members, the district could be perceived as sanctioning or even promoting traditional Christian prayer in violation of federal law. Student-led prayers then moved to the football field itself, prior to the game. However, no microphone or speaker system allowed spectators to hear such prayers. Monday night's vote will permit students to utilize the P.A. system for prayer before football games and all other special activities in the district.

Board president Delvin Kinser said that the LHS Christian fellowship group, StandOut, would participate in student-led prayer with enthusiasm.

[Thanks to Friendly Atheist blog via Scott Mange for the lead.]

New Jersey Trial Court Says State Equal Protection Guarantee Requires Allowing Same-Sex Marriage; Appeal Planned

In Garden State Equality v. Dow, (NJ Super. Ct., Sept. 27, 2013), a New Jersey State trial court held that after the U.S. Supreme Court's Windsor decision extending federal spousal benefits to same-sex married couples (but not to couples merely in civil unions), the equal protection guaranties of the New Jersey state constitution requires the state to extend the right to marry to same-sex couples. Previously New Jersey only recognized civil unions. The court ordered that its decision not take effect until Oct. 21 in order to give the state time to either effectuate or appeal the ruling. Friday's New Jersey Star-Ledger reports on the decision. According to PolitickerNJ on Friday, a spokesman for New Jersey Governor Chris Christie said that the administration would appeal the ruling to the New Jersey Supreme Court.

Oral Arguments In DC Circuit Contraceptive Mandate Case Available

Yesterday the D.C. Circuit Court of Appeals heard oral arguments in Gilardi v. U.S. Department of Health and Human Services. (Audio of oral arguments- download).  In the case, the district court refused to issue a preliminary injunction to prevent enforcement of the Affordable Care Act contraceptive coverage mandate in a suit by two related for-profit Subchapter S corporations and their Catholic owners. (See prior posting.)  The government views this case as the test case in the D.C. Circuit on small business free exercise and RFRA challenges to the mandate. (See prior posting.) AP reports on the oral arguments.

Catholic Religious Order Files Class Action Challenging Contraceptive Coverage Mandate

Another non-profit has filed suit challenging the Administration's compromise accommodation for their religious objections to the Affordable Care Act contraceptive coverage mandate. The Final Rules provide for insurance companies or third party administrators to furnish health plan enrollees with coverage for contraceptive services.  Yesterday, the Little Sisters of the Poor filed a class action on behalf of the 200 Catholic non-profits that participate in the Christian Brothers Employee Benefit Trust. The Trust is a self-insured "church plan". The complaint (full text) in Little Sisters of the Poor Home for the Aged v. Sebelius, (D CO, filed 9/24/2013) alleges that:

The trustees of the Christian Brothers Trust have not appointed an administrator of the Christian Brothers Trust that is willing to act as a “third party administrator” under the Final Mandate, because the Christian Brothers Trust would thereby be contracting for, arranging for or otherwise facilitating the provision of abortifacients, sterilizations and contraceptives in violation of Catholic teachings.

Becket Fund issued a press release announcing the filing of the lawsuit.

In India, Islamic Organization Sues Government For Defamation Over Police Memo

In India, the Islamic organization Jamaat-e-Islami Hind yesterday filed a defamation lawsuit in Bombay High Court against the Government of India, Government of the state of Maharashtra and the Maharashtra Director General of Police over a memo issued in April by the Mumbai police.  According to NDTV, the memo, circulated to all police stations, claimed that educational institutions run by Jamaat-e-Islami are attempting to enroll female students as jihadis. A Jamaat spokesman says that the police have admitted they made a mistake, but have not apologized in writing.

Today Is "See You At The Pole" Day

Today is the annual See You At the Pole Day. Begun in 1990, the event involves a prayer rally at the school flag pole, usually before school begins in the morning. (Background.) The student-sponsored events, coordinated by a Texas-based organization and supported by some 100 Christian churches and organizations, have spread to 20 countries. Organizers encourage students to pray for their friends, families, teachers, school, and nation.

EEOC Sues Over Company's Refusal To Accommodate Religious Objection To Biometric Hand Scanning

The EEOC filed a lawsuit in a West Virginia federal district court on Monday against Consol Energy and Consolidation Coal Co. charging that they had violated Title VII by failing to accommodate a Christian employee's religious objections to biometric hand scanning to track his time and attendance. According to the Clarksburg Exponent Telegram, Beverly R. Butcher Jr., a laborer at the companies' mining operation, believed that hand scanning involved the Mark of the Beast.  The company, relying on the scanner vendor's interpretation of the Mark of the Beast in Book of Revelation 13:16, offered to allow Butcher to scan his left hand (since the Biblical verse refers only to the right hand). However Bucher wanted instead to either keep written records of his hours or check in and out with a supervisor. The company rejected this, which allegedly led to Bucher retiring earlier than he otherwise would have done.

Court Says Spousal Privilege Does Not Apply To Couple In Civil Union

In Commonwealth of Kentucky v. Clary, (KY Cir. Ct., Sept. 23, 2013), a Kentucky trial court refused to apply the spousal privilege of Kentucky Rule of Evidence 504 to a couple who are parties to a Vermont civil union.  Under the rule, a spouse may refuse to testify, or prevent his or her spouse from testifying, about events occurring after the date of their marriage.  According to the Louisville Courier Journal, prosecutors trying Bobi Jo Clary for murder claim that her partner Geneva Case heard her admit to killing the victim, and saw Clary clean blood out of the victim's van and abandon it. The court explained that it need not decide whether the privilege must be applied to same-sex married couples since here the parties were only in a civil union.  Even though Vermont now recognizes same-sex marriage, the parties to a civil union in Vermont are required to take specified steps to convert the civil union to a marriage even for Vermont to recognize it. [Thanks to Thomas Rutledge for the lead.]

State Appeals Court Resolves Serbian Orthodox Church Dispute

Puskar v. Krco, (IL App., Sept. 23, 2013), involves a complicated dispute over whether or not the Serbian Orthodox Metropolitanante of New Gracanica Diocese of the United States and Canada reunited with the Serbian Orthodox Church based in Belgrade, Serbia.  In 1992, the two organizations took steps to unite by adopting Transitional Regulations.  Bishop Longin, appointed by the Belgrade church, announced in 2009 that a reorganization had occurred and that there is no longer a split between the Metropolitanante Diocese and the Belgrade Church.  Plaintiffs sued for a declaratory judgment and injunction, claiming that the Assembly of the Metropolitanante Diocese never authorized a reorganization and retained self-governing authority. The trial court dismissed on the basis of the ecclesiastical abstention doctrine, concluding that the focus of the suit was on the Bishop's duties and whether he had violated them.

In a 2-1 decision, a majority of the Illinois Court of Appeals disagreed, holding that plaintiffs merely sought an interpretation of the contractual relationship between the two churches, and in particular whether the Transitional Regulations are still in effect. The majority concluded that the Transitional Regulations expired according to their terms in 1995, and so the Metroplitanante Diocese is no longer governed by them.  Judge Spence dissenting argued that the case is primarily a dispute over church polity which the court is barred from deciding under the ecclesiastical abstention doctrine.

Drug Paraphernalia Charges Burden Rastafarian Teen's Free Exercise Rights

In In the Matter of the Welfare of: J.J.M.A., (MN App., Sept. 23, 2013), a Minnesota appellate court held that a 15-year old Rastafarian boy's free exercise rights protected by the Minnesota Constitution were violated when he was adjudicated delinquent for possessing drug paraphernalia. The boy claimed that his religion requires him to carry his cannabis pipe.  The court found that the drug paraphernalia statute as applied burdens the boy's sincerely held religious beliefs, and the state failed to show that the statute as applied is the least restrictive means to accomplish a compelling state interest. [Thanks to Volokh Conspiracy for the lead.]