Religion Clause

Tuesday, November 19, 2013

Note To Readers-- Still Working With Template

Religion Clause followers know I have been tinkering with the blog's traditional template style. Some intensive users found the new format to require excessive scrolling. So I am tinkering some more-- now with a wider body and Arial typeface. This makes all but the longest posts readable without scrolling. I have also added a "Recent Posts" box at the top of the sidebar to allow you to browse recent post topics without scrolling. Particularly to those who liked the first new template, let me know it this eliminates its advantages for you. And for those who did not like it, let me know if this is still too much scrolling for you. By the way, all standard browsers allow you to increase or decrease the size of the print you are reading by zooming in or out.

Split Ohio Supreme Court Upholds Firing Of Science Teacher For Refusing To Remove Religious Materials

In a 4-3 decision today, the Ohio Supreme Court upheld the firing of middle school science teacher John Freshwater for insubordination in failing to comply with orders to remove religious materials from his classroom. In Freshwater v. Mount Vernon City School District Board of Education, (OH Sup. Ct., Nov. 19, 2013), Chief Justice O'Connor in an opinion joined by Justices French and O'Neill held that the school improperly ordered Freshwater to remove his personal Bible from his desk. The order infringed Freshwater's free exercise rights; the Bible posed no threat of an Establishment Clause violation because Freshwater did not use it while teaching. However, Freshwater was properly removed for insubordination in failing to comply with orders to remove other religious materials from his classroom. The Chief Justice added:

Accordingly, based on our resolution of this threshold issue, we need not reach the constitutional issue of whether Freshwater impermissibly imposed his religious beliefs in his classroom.

Justice Lanzinger wrote a separate opinion joining only the court's syllabus in the case, saying:

I would hold that the school district’s order that John Freshwater put away his personal Bible while students were present was a reasonable and valid attempt to avoid an Establishment Clause violation. That order did not infringe on Freshwater’s free speech rights, for he was not required to remove the Bible from the classroom—merely putting the book into a desk drawer during class time would have sufficed.

Justice Pfeifer, in a rather blistering dissent, argued that the core of the insubordination charges against Freshwater involved his refusal to remove his personal Bible. Pfeifer agreed with the lead opinion that the order to remove it was improper but disagreed on the handling of the remaining insubordination charges:

With the insubordination claim gutted, the lead opinion should have moved on to consider the constitutional issues remaining in the case. Instead, the majority walks away from the opportunity to provide helpful guidance....

Thus concludes the sorry saga of John Freshwater, excellent junior-high science teacher, terminated as a result of an extreme overreaction of the parents of a decent student, followed by even less informed and measured responses by Mount Vernon school administrators and the school board.... [T]hey have managed to divide a really nice community and cost the school board and/or its insurance providers well over a million dollars to free itself of a very good teacher. And the people they did it for left town.

There is a clear set of winners today: the lawyers.... They have told themselves that they are participating in the evolved version of the Scopes trial, when in reality they have created a modern Jarndyce and Jarndyce....

This court accepted jurisdiction in this case presumably to speak to the important issues of the Establishment Clause, academic freedom, and how schools may approach educating children about the scientific theories of evolution, which may directly clash with religious teachings of creation to which many children have been exposed at home and at church. Instead this court ... [leaves] the resolution of all these heady matters in the hands of a lone referee. Ironically, the lead opinion in this case proves the existence of God. Apparently, he’s an R.C. 3319.16 referee from Shelby.

Justice O'Donnell also filed a dissenting opinion, which was joined by Justices Pfeiffer and Kennedy. He argued that there was insufficient evidence to support the insubordination claim, and that Freshwater was improperly charged with injecting his personal religious beliefs into his teaching:

[T]he evidence in this case reveals that the school board has misinterpreted Freshwater’s effort to challenge students to think critically about evolutionary theory and instead construed his instruction as promoting intelligent design from a creationist perspective. This is a misimpression and contrary to the evidence in this case, and it is not a basis to terminate the contract of a teacher.

The school board ... apparently assumed that he could not fairly present lessons on evolution and stated that he “not only injected his subjective, biased, Christian religion based, non-scientific opinion into the instruction of eighth grade science students but also gave those students reason to doubt the accuracy and or veracity of scientists, science textbooks, and/or science in general.” Yet student scores on standardized tests stand as strong, persuasive evidence of the board’s faulty conclusion; those scores instead reveal that Freshwater did teach evolution as mandated by the curriculum. Moreover, teaching students to question and rethink accepted scientific theories is essential to their understanding of the scientific method, the key concept his science students learned in eighth grade.

The Supreme Court also issued a lengthy press release on the decision, and the Columbus Dispatch reports on the decision.

Federal Jury Awards Portland City Employee Damages In Religious Harassment Case

In Portland, Oregon, a federal jury earlier this month awarded a former city employee damages of $14,080. It found in its Nov. 8 special verdict (full text) that plaintiff was subjected to a hostile work environment based on her religion, and that the city knew or should have known about the situation and failed to take prompt effective remedial action. As reported by yesterday's Oregonian, the complaint (full text) in Griffin v. City of Portland, (D OR, filed 4/9/2013) claimed that co-worker Theresa Lareau harassed plaintiff KellyMarie Griffin about her strong Christian beliefs, repeatedly making profane statements that offended Griffin and telling Griffin: "I’m tired of your Christian attitude and your Christian shit all over your desk and your Christian shit all over the place. I’m going to file a complaint against you the next time I sneeze and you say 'bless you'. You’re just doing it for the attention; you wear it on your sleeve like a badge and I’m sick of it. It offends me."

Court Will Approve Settlement In Class Action By Michigan Muslim Inmates

According to the Wall Street Journal, at a hearing yesterday a Michigan federal court judge indicated he would approve a proposed settlement (full text) in a long-running class-action lawsuit by Muslim prisoners. Under the settlement in Dowdy-El v. Caruso, (ED MI), the state will provide Muslim inmates meals that comply with halal standards. The settlement does not require the meals to include meat, and the state says it plans to furnish vegan meals to meet its obligations. The settlement also provides a procedure for inmates who were disciplined because of conflicts between religious services and work, school or administrative detail assignments to have the record of disciplinary actions expunged.

Catholic Diocese of Gallup Becomes Ninth To File For Bankruptcy Protection

Last week (Nov. 12), the Catholic Diocese of Gallup-- which encompasses parts of New Mexico and Arizona-- became the ninth Catholic diocese in the United States to file for Chapter 11 bankruptcy reorganization. As reported by the Albuquerque Journal, the diocese includes a large part of the Navajo Nation, as well as 6 other tribes and pueblos. The day before the filing, the diocese posted a letter (full text) from Bishop Wall reiterating a statement he made in September that bankruptcy reorganization is "the only way to equitably and mercifully deal with the mounting sex abuse claims, still meet our commitment to [parishioners] and continue the outreach mission of the Church." Two separate bankruptcy petitions, along with a motion for joint administration of the two cases, were filed in federal bankruptcy court in New Mexico since the diocese is organized through two separate entities-- a New Mexico corporation sole and an Arizona corporation sole. The full text of all the legal documents involved are available from the Diocese's website. [Thanks to Douglas Carver for the lead.]

Monday, November 18, 2013

Hotel Settles Religious Discrimination Suit With EEOC

The EEOC announced today that the MCM Elegante Hotel in Albuquerque, New Mexico has agreed to settle a religious discrimination suit brought by the EEOC charging that the hotel refused to accommodate a Muslim employee, Safia Abdullah, who was hired for a housekeeping position. The hotel insisted that Abdullah remove her hijab (religious head scarf), and fired her when she refused. Under the settlement, the hotel will pay $100,000 in damages and consent to an injunction baring future discriminatory practices. It will also institute new training and notice procedures.

Former Israeli Chief Rabbi Arrested On Bribery Charges

In Israel, the country's former Chief Ashkenazi Rabbi Yona Metzger was arrested by police today on charges of bribery, money laundering, obstructing an investigation, and fraud. Haaretz reports that police suspect Metzger, as chief rabbi, took bribes totaling millions of shekels (1 NIS= $0.28 US) from non-profit organizations in exchange for advancing their interests. In June, as Metzger neared the end of his term as chief rabbi, it was initially announced that he was under investigation. (See prior posting).

USCIRF Issues New Policy Brief On Role of Shariah in Sudanese Law

The U.S. Commission on International Religious Freedom last week issued its most recent Policy Brief, this one titled Sudan’s Enduring Question: The Role of Shari'ah in the Constitution and Law, (Nov. 2013). The Policy Brief says in part:

In December 2010, Sudanese president Omar al-Bashir declared that Sudan’s new constitution will be based on his government’s interpretation of Islamic (Shari’ah) law. Senior officials continue to repeat his declaration, as opposition parties and civil society representatives insist that Sudan’s new constitution be based on universal human rights and reflect Sudan’s commitments to international human rights standards, including freedom of religion or belief.

Concerns about Shari’ah being central to a future constitution ignore the fact that Sudan’s current legal system already is based on a restrictive interpretation of Shari’ah provisions and corresponding hudood, or classes of crimes with set punishments.

Sunday, November 17, 2013

Recent Prisoner Free Exercise Cases

In Smith v. Goord, (2d Cir., Nov. 15, 2013), the 2nd Circuit affirmed dismissal of a Muslim inmate's RLUIPA and equal protection challenges to the lack of Islamic services at a facility where he was held for approximately 4 weeks.

In Awe v. Virginia Department of Corrections, 2013 U.S. Dist. LEXIS 161227 (WD VA, Nov. 12, 2013), a Virginia federal district court dismissed an inmate's claim that the Virginia Department of Corrections Common Fare policy requiring inmates to sign an agreement to consent to possible suspension from the diet violates his free exercise and equal protection rights. Plaintiff was suspended for having a fried egg from the master menu in his pocket.

In Gooch v. Georgia Department of Corrections, 2013 U.S. Dist. LEXIS 160882 (MD GA, Nov. 12, 2013), a Georgia federal district court adopted in part a magistrate's recommendation (2013 U.S. Dist. LEXIS 161630, Sept. 18, 2013) and permitted an inmate to proceed against various defendants on his claim that they failed to provide him with a specific diet required by his religion.

In Hall v. Bradshaw, 2013 U.S. Dist. LEXIS 162284 (WD NC, Nov. 14, 2013), a North Carolina federal district court dismissed an inmate's claim that his request for a Native American bible was denied.

President Announces Nominee For Assistant Attorney General For Civil Rights

Last Thursday, President Obama announced his intention to nominate Debo P. Adegbile as Assistant Attorney General to head the Civil Rights Division of the Department of Justice. The Civil Rights Division enforces federal anti-discrimination laws, including those that prohibit religious discrimination. The nominee has served since July as Senior Counsel to the United States Senate Judiciary Committee, and before that worked at the NAACP Legal Defense and Educational Fund.

NYPD's Grooming Rule Violates Free Exercise Rights of Orthodox Jewish Officer

In Litzman v. New York City Police Department, (SD NY, Nov. 15, 2013), Fishel Litzman, a member of the Chabad Lubavitch Orthodox Jewish movement, was accepted into the NYPD Police Academy and sworn in as a probationary police officer. He sued when his request for a religious accommodation to allow him to wear a one-inch long beard was denied and he was fired for continuing to wear his beard. NYPD policy allowed for medical and religious exceptions to the Department's no-beard rule, but only for beards that do not exceed one millimeter in length. A New York federal district court held that while the police department had not violated Title VII of the 1964 Civil Rights Act by failing to accommodate Litzman's religious exercise, it did violate his 1st Amendment free exercise rights and the New York City Human Rights Law.

The NYPD prevailed under Title VII because it carried its burden of showing that an accommodation would create "undue hardship." The New York City Human Rights Law similarly requires accommodation, but has a definition of "undue hardship" that creates a much higher hurdle for the employer. NYPD failed to meet that test. Analyzing plaintiff's 1st Amendment free exercise claim, the court concluded that strict scrutiny should be applied:

Here, the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound. The ... NYPD provides temporary exemptions to police officers who grow beards beyond the one-millimeter limit for special occasions, such as religious holidays, weddings, and funerals.... Defendants also admit that the NYPD has police officers with beards in excess of one-millimeter in length, not only because of formal exemptions due to undercover assignments, but also because the NYPD does not always enforce its personal appearance standards.... Because there is evidence that the NYPD exercises discretion with respect to a facially neutral rule in a discriminatory fashion, strict scrutiny is appropriate.

New York Daily News reports on the decision.

Obama Sends Greetings To Sikhs Celebrating Birthday of First Sikh Guru

Yesterday, President Obama issued a statement (full text) extending best wishes to Sikhs in the United States and around the world as they celebrate the anniversary of the birth of Guru Nanak Dev Ji, the first Sikh Guru. The statement says in part:

This sacred time is an occasion to reflect on Guru Nanak’s timeless teachings and the principles that are at the heart of Sikhism, including the equality of all human beings, the pluralism we cherish in diverse societies and the compassion we owe one another.

Note To Readers On Template Redesign

I have done a bit of a redesign on the template for Religion Clause blog, hopefully to make it more readable. I invite comments on whether it has succeeded.

Saturday, November 16, 2013

Panelists Lament Loss of Experience At IRS Exempt Organizations Unit

Yesterday's BNA Daily Report for Executives [subscription required] reports on a Nov. 15 conference on tax exempt organizations sponsored by the American Law Institute and American Bar Association at which speakers lamented the current situation in the Internal Revenue Service's Exempt Organizations unit. Here are some excerpts from the BNA report:

Most of the senior IRS officials who worked in the unit have either retired or been pushed out as a result of the May Tea Party scandal, said Marc Owens, a partner with Caplin & Drysdale.... “Everyone from the commissioner down to the director of rulings and agreements in the exempt organizations function were replaced by people with essentially no tax administration experience,” he said. “No experience interpreting the Internal Revenue Code, no experience dealing with taxpayers that apply the code, no experience in doing what the exempt organizations function has done and is in charge of doing.”... One of the impacts of less-experienced employees in recent years has been a dwindling number of technical advice memorandums, the panelists said. TAMs move audit cases to the IRS's national office....

Private Foundation That Funds Milwaukee Archdiocese Is Respondent In Securities Fraud Case Supreme Court Agrees To Review

Yesterday, the U.S. Supreme Court granted certiorari in Halliburton Co. v. Erica P. John Fund, (Docket No. 13-317, cert. granted 11/15/2013). (Order List.) This is the second time the case is before the Supreme Court. (The Court's 2011 opinion was Erica P. John Fund, Inc. v. Halliburton.) Reports on yesterday's decision by the Court to grant review, such as this report by Reuters, all focus on the main issue involved-- whether the Court will back off of the so-called "fraud-on-the-market theory" that makes it easier for securities fraud class actions to be brought in federal court. What few, if any, media are reporting is that the plaintiff-appellee, the Erica P. John Fund, was previously known as the Archdiocese of Milwaukee Supporting Fund. In recent years it has donated some $600,000 per year to the Catholic Archdiocese-- which is now in bankruptcy reorganization. Here are excerpts from a somewhat unflattering March 2011 report about the Fund by the Milwaukee Journal-Sentinel:

The nonprofit Erica P. John Fund, which has given millions of dollars to the archdiocese and other organizations over the years, is among a number of revenue sources expected to be scrutinized by creditors in the archdiocese's bankruptcy.

Victims and their attorneys question the timing of the name change in 2009, suggesting it may have been intended to obscure the fund's true purpose - to financially support the archdiocese - and may have been part of a broader effort by the archdiocese to shield its resources from being used for sex abuse claims....

Archdiocese spokesman Jerry Topczewski said the John Fund, as a private foundation, cannot be tapped to pay sex church abuse settlements and that its grants obtained by the archdiocese are restricted to specific uses....

Proceeds from the fund - more specifically, from the sale of a property it donated - were used to pay $450,000 in hush money in 1998 to a man who claimed to have been sexually assaulted by then-Archbishop Rembert Weakland when he was a seminary student years earlier. Weakland, who abruptly retired after the payment became public in 2002, has maintained that the relationship was consensual.

[An Archdiocese spokesman] said the building was donated before Erica John dictated that no family funds could be used to pay sex-abuse settlements. And federal authorities investigated the allocation but found no wrongdoing by the archdiocese because the money had not been diverted from a specific purpose.

Wrongful Death Suit Filed Against Philadelphia Catholic Archdiocese and Two Priests

The Legal Intelligencer reports that a wrongful death lawsuit was filed last Wednesday in a Pennsylvania state trial court against the Catholic Archdiocese of Philadelphia, Monsignor William Lynn and Rev. Robert L. Brennan. At issue is the death of Sean Patrick McIlmail who last month was found dead in his car from a drug overdose. The suit alleges that McIlmail, who was addicted to drugs, suffered psychologically and emotionally as a result of sexual abuse by Brennan, and that McIlmail developed "various psychological coping mechanisms" in order to deal with the trauma. The suit claims that the Archdiocese and Msgr. Lynn "protected Brennan in his position so as to facilitate his sexual abuse of children...." Criminal charges against Brennan were dropped after McIlmail's death. A jury had previously deadlocked on criminal charges against Brennan. Lynn was convicted last year of child endangerment for covering up sexual abuse by other priests. (See prior posting.)

Friday, November 15, 2013

Supreme Court In Unusual Move Gives Interim Relief On Grooming Rules To Muslim Prisoner

In an unusual order (full text) yesterday, the United States Supreme Court issued an injunction barring the Arkansas Department of Corrections from enforcing its grooming policy against Muslim inmate Gregory Holt "to the extent that it prohibits applicant from growing a one-half-inch beard in accordance with his religious beliefs." The order entered in the case of Holt v. Hobbs, (Docket No. 13-6827) will terminate either when the Court denies Holt's petition for certiorari, or, if it grants the petition, when the Court enters its judgment. AP reports that Holt is serving a life sentence for domestic violence and burglary after he cut his girlfriend's throat and stabbed her. Holt, who also goes by his religious name of Abdul Maalik Muhammad, is appearing pro se. He filed his handwritten application for an injunction while his cert. petition is pending with Justice Samuel Alito (who is assigned to receive such motions in 8th Circuit cases). Alito in turn referred the application to the entire court which issued yesterday's order. Here is the 8th Circuit's opinion upholding the prison system's grooming policy. [Thanks to How Appealing for the lead.]

5th Circuit Remands Sikh's RFRA Challenge To Ban On Kirpan In Federal Building

In Tagore v. United States, (5th Cir., Nov. 13, 2013), the U.S. 5th Circuit Court of Appeals rejected a Title VII religious discrimination claim by a Sikh employee of the Internal Revenue Service who lost her job after she insisted on wearing her kirpan into her federal office building. Federal law (18 USC Sec. 930) prohibits weapons with blades over 2.5 inches long in federal building. The court said that: "An employer need not accommodate an employee’s religious practice by violating other laws."

However the court remanded for reconsideration of plaintiff's RFRA claim in light of a Policy Directive issued by the Federal Protective Service after the case concluded in the district court. (See prior posting.) That Directive permits granting of exemptions in federal buildings for Sikh articles of faith, and thus possibly undercuts the government's argument regarding the need for uniform application of the weapons ban. The appeals court also held that, contrary to the district court's conclusion, plaintiff had created a genuine issue of material fact as to her sincere religious belief in wearing a 3-inch bladed kirpan. [Thanks to Blog From the Capital for the lead.]

Hawaii Court Upholds State's New Marriage Equality Law

In Hawaii, a trial court judge rejected a state constitutional challenge to the Hawaii's marriage equality law that was signed by the governor yesterday. According to the Honolulu Star-Advertiser, Circuit Court Judge Karl Sakamoto held yesterday that the legislature has the inherent authority to define marriage. In 1998, Hawaii voters approved an anti-gay marriage constitutional amendment. But unlike amendments in a number of other states, Hawaii's Art. I, Sec. 23 merely permits the state legislature to reserve marriage to opposite sex couples. Plaintiffs in the case, including a state representative, a Christian pastor and the head of Hawaii's Christian Coalition argued that in the 1998 amendment, voters intended to ban same-sex marriage. The court rejected this argument.