Religion Clause

Thursday, May 29, 2014

Another ACA Contraceptive Coverage Challenge Filed By Catholic Diocese

Suits challenging the Affordable Care Act contraceptive coverage mandate continue to be filed by religious non-profits. The Catholic Diocese of Greensburg, Pennsylvania announced that on Tuesday it filed suit in a Pennsylvania federal district court challenging the requirement that its Catholic Charities and Catholic elementary schools sign a self-certification form that triggers contraceptive coverage being provided by their health plan's third-party administrator. Pittsburgh Tribune reports on the case.

2nd Circuit OK's "In God We Trust" On Money

In Newdow v. Peterson, (2d Cir., May 28, 2014), the U.S. 2nd Circuit Court of Appeals rejected challenges to 31 U.S.C. §§ 5112(d)(1) and 5114(b), which require that the national motto "In God We Trust" be placed on all coins and currency. The court agreed with 4 other Circuits that the statutory provisions do not violate the Establishment Clause, Free Exercise Clause, or RFRA, saying in part:

As the Supreme Court has repeatedly indicated in dicta, the statutes at issue in this case have a secular purpose and neither advance nor inhibit religion.....

Appellants argue that ... using currency ... requires them “to bear on their persons . . . a statement that attributes to them personally a perceived falsehood that is the antithesis of the central tenant of their religious system.”... Appellants also contend that using money forces them to proselytize.... We respectfully disagree.... As the Supreme Court has previously indicated, the carrying of currency, which is fungible and not publicly displayed, does not implicate concerns that its bearer will be forced to proclaim a viewpoint contrary to his own.

RNS reports on the decision.

Court Rejects Jurisdictional Defenses In IRS 501(c)(3) Policy Challenge

In Z Street, Inc., v. Koskinen, (D DC, May 27, 2014), the D.C. federal district court rejected a number of jurisdictional and procedural defenses raised by the Internal Revenue Service in a viewpoint discrimination suit brought by a conservative pro-Israel group challenging the IRS's "Israel Special Policy." Plaintiff alleges that the IRS has a policy of sending applications by Israel-related non-profit organizations seeking 501(c)(3) status to a special unit in the D.C. office to determine if the organization's policies differ from those of the Obama administration. Applications by such groups are allegedly subjected to additional review procedures not applied to others. In rejecting the IRS's motion to dismiss, the court said:

Defendant struggles mightily to transform a lawsuit that clearly challenges the constitutionality of the process that the IRS allegedly employs when it determines the tax-exempt status of certain organizations into a dispute over tax liability as a means of attempting to thwart this action’s advancement. But the instant complaint, which in no way seeks an assessment of the taxes to be paid or even a determination of the Plaintiff’s Section 501(c)(3) status, is not so easily deterred.

[Thanks to Steven H. Sholk for the lead.]

Wednesday, May 28, 2014

Nigeria's National Conference Adopts Recommendations On Religion

In Nigeria, The National Conference has been meeting since March 17. The National Conference grew out of a recommendation from a 13-member Presidential Advisory Committee on National Dialogue. The Conference is considering the reports of its 20 committees on different critical national issues. The Daily Times of Nigeria reports on yesterday's consideration of the report from the Committee on Religion. The National Conference adopted the Committee's recommendation that the government should no longer use public funds to sponsor any program, particularly religious pilgrimages. Instead the top religious bodies in the country should handle all matters relating to pilgrimages through Pilgrims Commissions managed under a law to be passed by the National Assembly.

The Conference has not yet passed on another recommendation of the Committee on Religion-- the proposed creation of a Religious Equity Commission authorized to advocate, and to enforce constitutional religious rights such as freedom of religion and freedom to acquire land for religious purposes.

While many applauded the work of the Committee on Religion, others criticized it for avoiding the issue of mission schools and the issue of regulating the location of worship centers.

Canadian Muslim Group Sues Prime Minister's Office For Defamation

The National Council of Canadian Muslims (NCCM) announced on Monday that it has commenced a defamation lawsuit against Prime Minister Stephen Harper and Jason MacDonald, the Prime Minister’s Communications Director. After NCCM sent a letter to the Prime Minister's office in January objecting to the inclusion of a particular rabbi on the Prime Minister's visit to Israel, a spokesman for the Prime Minister said that NCCM is "an organization with documented ties to a terrorist organization such as Hamas." On Jan. 28, NCCM initiated a libel notice against the Prime Minister's Office. Since there has been no retraction, NCCM filed suit. OnIslam reports on the lawsuit.

Tuesday, May 27, 2014

Neo-Pagan Religion Gets Formal Recognition In Siberian Republic

The Moscow Times reported yesterday that after 18 years of trying, the neo-pagan faith Aar Aiyy has finally received formal recognition as a "religious organization" in the Siberian Russian Republic of Sakha. Russia's Law On Freedom of Conscience and Religious Associations sets out the procedure for obtaining recognition. Under Russian law, religious organizations have greater rights than unrecognized religious groups.

Israel's High Court of Justice Invalidates A Stipend Program For Orthodox Yeshiva Students

Times of Israel reports on a decision handed down Sunday by a 7-judge panel of Israel's High Court of Justice invalidating a government program that awards 4-year Orthodox Jewish yeshiva students stipends designed to assure that they receive the equivalent of the minimum wage. The court ruled that, like another scholarship program it struck down in 2010, the stipends perpetuate favoritism toward yeshiva students and discriminate against "other groups, including women, those of other faiths, students belonging to other Jewish denominations and university students." It said that the program does not appear to carry out the government's goal of encouraging yeshiva students to enter the workforce after 4 years. The stipend cut-off takes effect next year. A separate program that aids longer-term yeshiva students was upheld by the Court.

Challenge To Oklahoma 10 Commandments Monument Can Move Forward

In American Atheists, Inc. v. Thompson, (WD OK, May 22, 2014), an Oklahoma federal district court refused to dismiss an Establishment Clause challenge to a Ten Commandments monument on the grounds of the Oklahoma state capitol. Even though the monument is identical physically to the one upheld in 2005 by the U.S. Supreme Court in Van Orden v. Perry, the court said that the physical setting and context in which it is displayed is different. The court also refused to dismiss plaintiffs' claim that the monument and the state's moratorium on other monuments violates the Equal Protection clause. The court however did dismiss one of the several plaintiffs for lack of standing. An American Atheists press release has more background.

Monday, May 26, 2014

Michigan Appeals Court: Ecclesiastical Proceedings Toll Statute of Limitations; Hierarchical Structure Poses Factual Question

In Chabad-Lubavitch of Michigan v. Schuchman, (MI App., May 22, 2014), a Michigan appellate court reversed a trial court's dismissal of a suit brought by Chabad-Lubavitch of Michigan in its property dispute with a local Chabad organization. Plaintiff claimed that property of Bais Chabad Torah Center of West Bloomfield should have been titled in the name of the Michigan parent entity rather than in the name of the local organization. The property claim was apparently first raised in a rabbinic panel proceeding as a counter-claim after the head of the West Bloomfield Chabad center filed complaints against the rabbi who heads the Michigan parent organization. The dispute has already been the subject of five decisions by Jewish rabbinic panels, all of which ruled that title should be in the name of the parent group. However the West Bloomfield Chabad center refused to comply and the rabbinic court gave the parent body permission to file this civil suit.

The court held that the ecclesiastical abstention doctrine would require it to defer to the decision of the Chabad rabbinic determinations if Chabad-Lubavitch is a hierarchical organization. The court concluded, however, that "there is a genuine issue of material fact regarding whether Chabad-Lubavitch is hierarchical in regard to property matters, and thus, whether the ecclesiastical abstention doctrine applies in this case."

In the course or reaching this conclusion, the court made interesting rulings on defendants' statute of limitations defense. It held that "the applicable statutes of limitation were equitably tolled during the time that the parties were engaged in the mandatory ecclesiastical dispute resolution process." It ruled that prior precedent refusing to toll statutes of limitation while parties are engaged in voluntary arbitration does not apply because the parties were involved in Chabad-Lubavitch's mandatory ecclesiastical procedure. But that left the question of when tolling ended:

[D]efendants dispute the date that the ecclesiastical dispute resolution process was concluded. Plaintiff maintains that the process was not complete until it received permission to bring a lawsuit in civil court.... Defendants maintain that plaintiff should have sought permission earlier so as to comply with the applicable statutes of limitations..... However, the parties’ dispute regarding when the internal procedure was final constitutes a factual question that is not appropriate for resolution by this Court on appeal. Moreover, resolution of the parties’ disagreement about when the internal dispute resolution process was final would require this Court to interpret religious doctrine or polity. Engaging in such an interpretation would be improper because the First Amendment “requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization.” ... Accordingly, we are required to defer to plaintiff’s claim that the procedure was not final until it received permission to file a civil lawsuit.... Therefore, plaintiff’s complaint was timely filed.

Sunday, May 25, 2014

Two Recent Religious Discrimination Suits In New York

Two interesting religious discrimination suits filed in New York have been reported on in recent days by the media. TMZ (May 21) reports that Nicole Johnson, a devout Muslim, is suing TV talk show host Bill Cunningham for mental anguish. She claims that when she showed up in the audience for a taping of Cunningham's show wearing her hijab (head scarf), show employees forced her to leave her front row seat and sit in the back. She says she was also prohibited from asking a question during the show.

The New York Post (May 25) reports that Mollie Fermaglich, a New York University faculty member, has sued claiming that after 20 years at NYU and a successful television career, she has been repeatedly passed over for promotion in favor of younger, male, non-Jewish faculty. She says that when she protested working on Passover, a colleague asked her: "Just how Jewish are you?" NYU says there is no basis for her claims.

Recent Prisoner Free Exercise Cases

In Sutton v. City of Philadelphia, 2014 U.S. Dist. LEXIS 70242 (ED PA, May 21, 2014). a Pennsylvania federal district court, while dismissing a Muslim inmate's complaint that he was sometimes not served his vegetarian meals, allowed him to move to trial on his claim that the food service company maintained a discriminatory religious alternative meal system that provided kosher meals that sometimes included meat, but only vegetarian halal meals.

In Covington v. Mountries, 2014 U.S. Dist. LEXIS 69204 (SD NY, May 20, 2014), a New York federal district court concluded that a Muslim inmate had adequately pled that a lock down which prevented him from attending weekly Jumu'ah services substantially burdened his religious exercise, but failed to allege defendant's involvement. The court gave plaintiff 45 days to amend his complaint.

In Gilmore v. Augustus, 2014 U.S. Dist. LEXIS 69296 (ED CA, May 19, 2014), a California federal magistrate judge refused to allow a Muslim inmate to amend his complaint to allege that he was unable to fully enjoy his religious worship because of pain and suffering from excessive force used against him by a correctional officer.

In Shehee v. Anlin, 2014 U.S. Dist. LEXIS 69290 (ED CA, May 19, 2014), a California federal magistrate judge dismissed with leave to amend a civil detainee's complaint that while he was granted a religious vegan diet, often servers ran out of food that met his dietary requirements.

In Price v. White, 2014 U.S. Dist. LEXIS 70133 (WD KY, May 21, 2014), a Kentucky federal district court dismissed on qualified immunity and mootness grounds a challenge by a Jewish inmate to grooming standards that required him to cut his hair.

In Leishman v. Patterson, 2014 U.S. Dist. LEXIS 69909 (D UT, May 20, 2014), a Utah federal district court dismissed damage claims by an inmate who was an adherent of Asatru who was not permitted to possess rune tiles made of wood or conduct Blot ceremonies.

In Harris v. Sawyer, 2014 U.S. Dist. LEXIS 70349 (D AZ, May 22, 2014), and Arizona federal district court dismissed with leave to amend an inmate's claim that on two occasions he was not allowed to attend religious services.

In Pressley v. Pennsylvania Department of Corrections, 2014 Pa. Commw. Unpub. LEXIS 308 (PA Commnw. Ct., May 23, 2014), a 3-judge panel of the Pennsylvania Commonwealth court dismissed 1st Amendment but not RLUIPA claims by a Muslim inmate who had requested a kosher diet because prison authorities were not cleaning cookware and serving utensils properly before using them for preparing halal meals.

In Williams v. Madrid, 2014 U.S. Dist. LEXIS 55826 (ED CA, April 21, 2014), a California federal magistrate judge dismissed without prejudice a complaint by an uncommitted civil detainee being held as a sexually violent predator that the Establishment Clause was violated when he was required to participate in the Better Lives Treatment Program.

Pope Visits Holy Land; Presses On Peace Efforts

Pope Francis is on a 3-day visit to the Holy Land, originally described by the Vatican as follows:

The Holy Father will travel to the Holy Land from Saturday, 24 May to Monday, 26 May, to celebrate the 50th anniversary of the historic embrace between Paul VI and Ecumenical Patriarch Athenagoras in Jerusalem on 5 January 1964.

The trip takes the Pope to Jordan, the Palestinian territories and Israel. the Full text of all the Papal addresses during the trip and all Vatican media reports on it are on a special Holy Land Pilgrimage website.

AP reports today that the Pope became heavily involved in encouraging Middle East peace efforts by inviting Palestinian President Mahmoud Abbas and Israeli President Shimon Peres to a summit in the Vatican next month to discuss the peace process. Both presidents have accepted. According to AP:

Peres has been a fervent support of Mideast peace efforts, and the independent-minded Israeli president, whose job is largely ceremonial, risks upsetting Prime Minister Benjamin Netanyahu with the move.

Saturday, May 24, 2014

South Dakota Suit Challenges Ban on Same-Sex Marriage

On Thursday, six couples filed a lawsuit in federal district court in South Dakota challenging the constitutionality of South Dakota's constitutional and statutory ban on same-sex marriage. The complaint (full text) in Rosenbrahn v. Daugaard, (D SD, filed 5/22/2014), contends that the ban violates the due process and equal protection clauses of the 14th Amendment, and that the refusal to recognize same-sex marriages performed elsewhere also violates plaintiffs' right to travel. As reported by AP, South Dakota Attorney General Marty Jackley says that he is obligated by law to defend the state's ban. With the filing of this lawsuit, only North Dakota with a ban on same-sex marriage that has not been challenged in the courts.

Friday, May 23, 2014

More Indictments In Kidnappings To Obtain Jewish Divorces From Recalcitrant Husbands

Yesterday the U.S. Attorney's Office for the District of New Jersey announced a new series of grand jury indictments in the investigation that began in 2011 of kidnappings and assaults to force recalcitrant Orthodox Jewish husbands to give their wives a religious divorce document (get). (See prior posting.) Yesterday's indictments charged four Orthodox Jewish rabbis and one of their sons with kidnapping and conspiracy. They face maximum sentences of life in prison. According to AP, the attorney for Rabbi Jay Goldstein, one of those charged, said that the case was "overcharged" and that prosecutors failed to take into account the individual circumstances of the women who were aided in obtaining divorces. Attorneys for other defendants called the charges false.

UPDATE: Jewish Voice reports that on May 24, FBI agents made two more arrests on kidnapping charges growing out of a 2009 abduction of a man in order to force him to give his wife a get. The two were charged in a criminal complaint, taken before a magistrate and released on $500,000 bail plus home detention and electronic monitoring. The two who were charged are David Epstein (who was also name in the indictment described in the main posting) and Chaim Rubin.

Russian Court Imposes Sanctions On Library of Congress For Failure To Return 7 Religious Books On Loan

Last year, a D.C. federal district court held the Russian government and three of its agencies in civil contempt for not complying with a 2010 default judgement ordering them to return two expropriated collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States. The court imposed civil sanctions of $50,000 per day until defendants comply with the court's order. (See prior posting.) In response, the Russian government filed suit in a Russian court to force the U.S. Library of Congress to return seven books from one of the two collections that were loaned to it. (See prior posting.) Now, according to The Forward, a Moscow arbitration court ruled yesterday that the Library of Congress must pay $50,000 in fines for every day the seven books are not returned. Russia claims that the books were loaned to the Library of Congress in 1991 for 60 days, but have never been sent back to Russia.

10th Circuit OK's Discipline of Police Officer Who Refused Order On Attendance At Mosque's Police Appreciation Event

In Fields v. City of Tulsa, (10th Cir., May 22, 2014), the U.S. 10th Circuit Court of Appeals dismissed a civil rights complaint filed by Tulsa, Oklahoma police captain Paul Fields who refused to comply with an order requiring him to arrange for two officers and a supervisor from his shift to attend a law enforcement appreciation day held at the Islamic Society of Tulsa. Fields objected that the order required him to enter a Mosque. The department suspended Fields for 10 days without pay and transferred him to a less attractive shift because of his refusal. Fields sued, claiming violations of the free exercise clause, establishment clause, his right to freedom of association and the equal protection clause. The court rejected all of these claims. The court held there was no free exercise violation because Fields wan not personally required to attend under the order. The event was a thank you from the Islamic community to the police department and did not require anyone to participate in religious activities. Tours of the mosque and discussions of Islam at the event were purely voluntary.

The court also upheld the refusal to allow Fields to amend his complaint to allege retaliation for filing the lawsuit in violation of his free speech rights. It concluded that the police department had a compelling interest that outweighed any restriction on speech. The Tulsa World reports that Fields lawyer says he will seek en banc review of the decision.

Washington Supreme Court Says Anti-Discrimination Law Requires Reasonable Accommodation of Religious Beliefs

In Kumar v. Gate Gourmet, Inc., (WA Sup. Ct., May 22, 2014), the Washington state Supreme Court, in a 5-4 decision, held that Washington's Law Against Discrimination implies a requirement that employers reasonably accommodate employees' religious practices. It went on to hold that the employees of an airport food service company stated a prima facie claim for failure to reasonably accommodate their religious dietary needs. For security reasons the employees could not bring their own food to work or leave for lunch, so the company furnished meals. However employees allege that the beef-pork meatballs served did not meet their religious requirements, and that when they informed the company it initially deceived them into eating food that violated their religious beliefs and then refused to accept any of the employees' proposed accommodations. The majority found that the employees had also adequately stated claims for disparate impact, battery, and negligent infliction of emotional distress.

Justice Madsen's dissent argued that implying a cause of action for reasonable accommodation improperly encroaches on the legislature's function. Even if it is implied, it should not be applied on these facts because there was no actual or threatened adverse employment action taken against the employees.

Thursday, May 22, 2014

Suit Claims High School Teachers Indoctrinated Girls Into Religious Cult

A lawsuit filed last Monday in Connecticut federal district court claims that three Spanish teachers and a guidance counselor at Connecticut's Avon High School engaged in "unlawful and predatory religious indoctrination of students." The 64-page complaint (full text) in Doe v. Mastoloni, (D CT, filed 5/19/2014), alleges 24 separate causes of action against the teachers, counselor, the Avon school district and Wellesley College. Brought by the parents of 3 daughters who were allegedly indoctrinated, and one of the daughters who broke free of the indoctrination, the complaint alleges:

6. All three girls experienced sudden and severe personality changes. They became flat and distant, reclusive, secretive, and non-communicative. They lost their humor and their empathy. They began speaking in a bizarre new language. They became unable to think critically or independently. They became dependent on the school teachers and guidance counselor who had indoctrinated them, especially Defendant Tanya Mastoloni.

7. On information and belief, the two older Doe sisters were indoctrinated into a religious cult that promotes martyrdom, and celebrates death. This has caused the elder Doe sisters to experience fantasies of suicidal ideation and martyrdom.

8. The youngest Doe daughter, J.D., was targeted to be indoctrinated into the same belief system, but she eventually broke free. J.D. has now joined her parents as a Plaintiff in this case.

9. The other two Doe daughters have, at the urging of Defendants Mastoloni, Kessler, Esposito, and Sullivan, cut off all of their communications with the rest of the Doe family, including extended family. They have also cut off all of their communications with their friends.

10. Defendants Mastoloni, Kessler, Esposito, and Sullivan pose a serious threat to the Avon community and the public at large. They each exert significant influence over the impressionable high school students who have been entrusted to their care. There is an obvious power differential between students and their teachers and guidance counselors.

11. Defendants Mastoloni, Kessler, Esposito, and Sullivan have consistently targeted minors and pursued them until they were of age in order to complete the conversion to martyrdom. Because of that, Defendants Mastoloni, Kessler, Esposito, and Sullivan pose a serious danger to students, students' families, and the public at large.

Courthouse News Service reports on the case.

UPDATE: Responding to the lawsuit, the Avon school superintendent said that the district had not previously been contacted about the allegations and the complaint has been turned over to counsel for review.

UPDATE 2: AP reported on March 5, 2018 that a settlement has been reached in the case.

RLUIPA Suit Challenges City's Refusal To Allow Homeless Ministry To Continue

A suit was filed last week in a California federal district court by the Stanford Law School Religious Liberty Clinic on behalf of a church in San Buenaventura, California that was denied a permit to continue to operate its ministry to the homeless in its current location. The complaint (full text) in Harbor Missionary Church Corp. v. City of San Buenaventura, (CD CA, filed 5/14/2014), contends that the church's rights under the 1st Amendment and RLUIPA were violated when the city refused to recognize that the current permit to operate as a church was sufficient to allow the church to continue to offer meals, clothing, laundry and shower facilities, Bible study and prayer to the homeless, and then refused to issue the church a conditional use permit to allow the ministry to continue. Here is Plaintiff's Memorandum in Support of Motion for Preliminary Injunction. Courthouse News Service reports on the case. [Thanks to Paul Harold for the lead.]