Religion Clause

Monday, July 15, 2013

New Petition To California Supreme Court Argues That Proposition 8 Must Still Be Enforced

While it has been widely assumed (see prior posting) that last month's U.S. Supreme Court decision in Hollingsworth v. Perry reinstating a federal district court's injunction had the effect of legalizing same-sex marriage in California, a petition filed Friday with the California Supreme Court argues that this is not the case. (ADF press release). The petition and accompanying memorandum (full text) in Hollingsworth v. O'Connell, (CA Sup. Ct., filed 7/12/2013) seeks a writ of mandate ordering 58 county clerks to enforce Proposition 8. Petitioners, who were the official proponents of Proposition 8, argue in part in their filing with the California Supreme Court:

The Perry injunction is no bar to this outcome, for at least two reasons. First, that injunction does not require any county clerk to cease future enforcement of Proposition 8. The Perry court’s authority was limited to providing injunctive relief for the four plaintiffs in that case. Because those plaintiffs have recently been married, all relief due under that injunction has already been provided, and therefore none of the county clerks are required by that injunction to stop enforcing Proposition 8 in the future. Second, and alternatively, the Perry injunction does not require the 56 county clerks who were not defendants to that action to stop enforcing Proposition 8. The injunction purports to cover all persons under the supervision or control of the named state defendants. But none of those state officials have authority to supervise or control county clerks when issuing marriage licenses. Therefore, the Perry injunction does not bind the 56 county clerks not named as defendants in that case.

Settlement In Lawsuit Challenging Park's Exclusion of Religious Activities

Last week the parties filed a Notice of Settlement in O'Neal v. Recreation and Park Commission for the Parish of East Baton Rouge, (MD LA, filed 7/8/2013). The federal lawsuit (full text of complaint) had been filed in June 2012 after park authorities told the Voices of Mercy Outreach Ministry that it could no longer use Cadillac Street Park for its Sidewalk Sunday School Outreach program. Park rules prohibit religious use of the facilities, but enforcement of the park policy made it difficult for the Ministry to reach at-risk youth who lived in low income neighborhoods near the park. The lawsuit alleged free speech, free exercise, Establishment Clause and equal protection violations. According to a July 12 ADF press release announcing the settlement, now:"the park commission has agreed to amend its Special Event Permit Policy and allow the group to meet at the park for four months without security and insurance and with the opportunity to reapply for a permit at the expiration of that time."

Sunday, July 14, 2013

Twitter Gives French Prosecutors Data On Origin Of Anti-Semitic Tweets

Last month a French appellate court ordered Twitter to turn over to the Union of Jewish French Students (UEJF) and four human rights groups the names of individuals who last October posted Tweets using anti-Semitic hashtags. (See prior posting.) When Twitter failed to comply, UEJF filed a $50 million suit against it. According to the New York Times,Twitter, in a statement released Friday, says it has now turned the names over to French prosecutors rather than the private groups. Twitter said:

in response to a valid legal request, Twitter has provided the prosecutor of Paris, Presse et Libertés Publiques section of the Paris Tribunal de Grande Instance, with data that may enable the identification of certain users that the Vice-Prosecutor believes have violated French law.

Pakistani Taliban In South Waziristan Impose Clothing Restrictions For Ramadan

In Pakistan, the Taliban have warned shop keepers in the tribal area of South Waziristan not to sell tight -fitting or see-through men's clothing during Ramadan. As reported yesterday by The News and Pakistan Today, the Taliban in the city of Wana issued a pamphlet threatening to fine shop keepers and close them down for at lest 5 days if they did not comply, describing such clothing as "un-Islamic and against Pashtun culture." It also warned male residents not to wear such clothing. Additionally, the pamphlet banned the sale of fireworks and threatened to jail anyone found not fasting during Ramadan.

Recent Prisoner Free Exercise Cases

In Mathis v. Monza, (3rd Cir., July 8, 2013), the 3rd Circuit rejected an inmate's argument that his Establishment Clause and equal protection rights were violated by a jail's policy allowing Restricted Housing Unit inmates to possess religious texts but not non-religious texts, and allowing them to have visits from religious advisers but not from others.

In Lewis v. Amato, 2013 U.S. Dist. LEXIS 94503 (ND NY, July 8, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 95532, June 7, 2013) and dismissed plaintiff's general claim that inmates in involuntary protective custody were precluded from practicing religion.

In Shields v. Foston, 2013 U.S. Dist. LEXIS 95776 (ED CA, July 9, 2013), a California federal magistrate judge recommended dismissing a Muslim inmate's RLUIPA claim objecting to prison regulations that deny conjugal visits to inmates serving a life sentence without the possibility of parole. Plaintiff argued that the policy prevented him from consummating his marriage and making it valid under Islamic law.

In Hernandez v. Pugh, 2013 U.S. Dist. LEXIS 96456 (ND OH, July 10, 2013), an Ohio federal district court denied a Jewish inmate's motion to reconsider the court's prior dismissal of his suit. The court held that plaintiff was not made to eat meat and dairy together in violation of Jewish law. Rather his stockpiling of meals during a fast day instead of taking the post-fast meal provided to others led to the problem.

In Handzlik v. Lain, 2013 U.S. Dist. LEXIS 96767 (ND IN, July 11, 2013) and in Bray v. Lain, 2013 U.S. Dist. LEXIS 97269 (ND IN, July 12, 2013), an Indiana federal district court permitted pre-trial detainees to proceed with their claims that the jail staff, for no legitimate reason, has intercepted books sent to them that they need to practice their religion.

In Alldred v. Keller, 2013 U.S. Dist. LEXIS 97045 (ED NC, July 11, 2013), a North Carolina federal district court permitted two Messianic Jewish inmates to proceed under RLUIPA and the 1st Amendment on their complaint that authorities denied them kosher meals as well as group worship on the Sabbath and holy days.

Saturday, July 13, 2013

Poland's Parliament Defeats Bill To Re-Introduce Kosher and Halal Slaughter

Last November, Poland's Constitutional Tribunal held that Jewish and Muslim ritual slaughter of animals without first stunning them violates Poland's animal protection laws. (See prior posting.) However the European Convention for the Protection of Animals for Slaughter allows EU countries to exempt religious slaughter from the general stunning requirements. As reported by EJP, before last year's court decision Poland had exports of between $330 and $460 million of halal beef sent to Muslim countries (mainly Turkey) and in kosher meat sent to Israel. The industry supported some 6000 jobs. A government-sponsored bill to again permit kosher and halal slaughter was introduced in Parliament, but yesterday the Sejm (lower house) defeated the bill by a vote of 178 for and 222 against. The Civic Platform party that holds 207 of the 460 seats in parliament decided that the vote involved an issue of conscience, freeing 38 of its members to vote against the bill the party sponsored.

Piotr Kadlcik, President of the Union of Jewish Communities of Poland, strongly criticized the vote, saying: "Populism, superstition and political interests won out. It looks like we've made a full circle and are heading back to what happened in Poland and Germany in the 1930s."

Church Camp May Proceed With Free Exercise Claim Challenging Water Diversion Project

In Ministerio Roca Solida v. United States, (D NV, July 10 2013), a Nevada federal district court allowed plaintiff, a Christian organization that operates a church camp, to move ahead with its lawsuit claiming that its free exercise and due process rights were infringed when the U.S. Fish and Wildlife Service engaged in a water diversion project that caused the camp to lose access to a desert stream that had previously flowed across the property. The stream was used for baptisms and religious meditation and fed into a recreational pond used by campers. The court also refused to dismiss plaintiff’s takings and Federal Tort Claims Act allegations.

Friday, July 12, 2013

Preliminary Injunction Denied In For-Profit Company's Challenge To Contraceptive Coverage Mandate

In Mersino Management Co. v. Sebelius, (ED MI, July 11, 2013), a Michigan federal district court refused to issue a preliminary injunction to bar enforcement of the Affordable Care Act's contraceptive coverage mandate against a for-profit corporation and its two Catholic shareholders. The court said in part:

Plaintiffs have not demonstrated that they are likely to succeed on their claims because ... Mersino Managment, as a secular forprofit company, cannot “exercise” religion and cannot act as the alter ego of its owners in challenging the contraceptive mandate under RFRA....

Mersino Management’s Articles of Incorporation do not mention a religious purpose, it does not employ persons of only a particular religious faith, it does not purport to conduct religious services as part of its business model..... Mersino Management is in the business of selling water bypass systems for profit. The fact that its owners may hold deep religious beliefs, and that the mission statement of the company includes a statement of fealty to God, does not convert this secular, for profit company into a religious organization capable of exercising religion. ....

Nor can Karen and Rodney Mersino impute their own religious beliefs to their corporation so that the corporation can act as their alter ego and assert those rights on behalf of the Mersinos....

Plaintiffs maintain that their sincerely held religious beliefs preclude them from indirectly providing the means for their employees to make the independent decision to purchase contraceptives.... Plaintiffs argue that courts that have concluded that any burden imposed on them by the regulations is too attenuated to be substantial are in fact questioning this fundamental sincerely held belief, which all parties agree courts are precluded from doing under a RFRA analysis. Plaintiffs claim this gives them a “silver bullet,” that by alleging sincerity, the discussion is over. Not so! As many courts have noted, permitting Plaintiffs to determine what constitutes “substantial” and then insulating this proposition from challenge, impermissibly converts the “substantial burden” requirement to an “any burden” showing.

British Soccer Player Sentenced To 3 Months For Anti-Muslim Rant On Twitter

In Britain on Wednesday, a player on the Witton Albion Football Club was sentenced to 3 months in jail for a drunken anti-Muslim rant on Twitter in the wake of the May murder of British soldier Lee Rigby. The Northwich Guardian and Irish Mirror report that footballer Shaun Tuck sent out a series of Tweets over a number of hours urging people to "‘bomb and gas every mosque in England." The Tweets were removed several hours later. In sentencing Tuck for violations of the Communications Act, the court said: "These messages were posted during a period of heightened racial tension following the brutal and public slaying of Drummer Lee Rigby at a time when community leaders, religious leaders, police and the victim’s family were calling for calm."

Swedish Court Allows Religious Objectors To Opt Out of High School Dance Instruction

In Sweden, the Administrative Court of Appeal (Kammarrätt) has ruled in favor of a family which on the basis of their Laestadian religious beliefs object to the dance component in their daughters' physical education course. Laestadianism is a conservative Lutheran movement. As reported by The Local earlier this week, Swedish education law provides that schools should develop their program to permit students to participate regardless of their religious beliefs. Under the court's decision, the family can now opt out of the otherwise mandatory part of the physical education course.

4th Circuit Rejects Religion-Based Challenges To Affordable Care Act Provisions and Upholds Employer Mandate

In Liberty University, Inc. v. Lew, (4th Cir., July 11, 2013), the U.S. 4th Circuit Court of Appeals, in addition to broadly upholding the constitutionality of the Affordable Care Act's employer mandate (see Reuters coverage), rejected free exercise, RFRA, Establishment Clause and equal protection challenges to other provisions of the Act. It held that:

Plaintiffs present no plausible claim that the Act substantially burdens their free exercise of religion, by forcing them to facilitate or support abortion or otherwise.

The court also rejected challenges to the two narrow religious exemptions in the ACA:.

The first exemption Plaintiffs challenge is the individual mandate’s religious conscience exemption. See 26 U.S.C. § 5000A(d)(2)(A). Plaintiffs maintain that this exemption discriminates against their religious practice by applying only to sects that conscientiously oppose a all insurance benefits, provide for their own members, and were established before December 31, 1950. The religious conscience exemption adopts an exemption of the Social Security Amendments of 1965 under 26 U.S.C. § 1402(g), which courts have consistently found constitutional under the Establishment Clause and the Fifth Amendment.....

The second individual mandate exemption challenged by Plaintiffs is the health care sharing ministry exemption. See 26 U.S.C. § 5000A(d)(2)(B). Plaintiffs maintain that it unconstitutionally selects an arbitrary formation date of December 31, 1999 as the eligibility cutoff. But even if the exemption’s cutoff date is arbitrary, it is not unconstitutional. For neither the cutoff’s text nor its history suggests any deliberate attempt to distinguish between particular religious groups. Accordingly, the cutoff need only satisfy the Lemon test.

Finally the court refused to consider plaintiffs' newly-added challenge to the more-recently adopted contraceptive coverage mandate because the issue had not been raised previously in the case.

Thursday, July 11, 2013

Russian Supreme Court Upholds Hijab Ban In Region's Schools

Russia's Supreme court yesterday affirmed a lower court decision upholding standards for school students' appearance adopted last October in the region of Stavropol. The regulations ban the wearing of the hijab (headscarf) by Muslim school girls. The Moscow Times and RIA Novosti report that the lawsuit was filed by members of the Muslim community who claim the regulation violates their constitutionally protected freedom of conscience and religion, and forces high school girls to either transfer to a religious school or study at home. The lower court concluded that the regulations were designed to promote equality among students of different denominations and faiths. The Supreme Court agreed, holding that the rules do not violate freedom of religion or infringe on the right to an education.

British Appeals Court Holds Christian B&B Owner Illegally Discriminated Against Gay Couple

In Black v. Wilkinson, (EWCA, July 9, 2013), Britain's Court of Appeal held that the Christian owner of a bed and breakfast operated from her home violated he Equality Act (Sexual Orientation) Regulations 2007 by limiting her two double rooms to married heterosexual couples. The B&B had a total of 3 rooms that were available for guests. The suit was brought by a gay couple who were turned away after they had made a reservation and submitted a deposit. Master of the Rolls Lord Dyson concluded that these actions amounted to both direct and indirect discrimination. He added:

It is clearly established that, as a matter of general principle, (i) the right of a homosexual not to suffer discrimination on the grounds of sexual orientation is an important human right (article 8 and 14), and (ii) the freedom to manifest one’s religion or belief under article 9(1) is also an important human right.... Neither is intrinsically more important than the other. Neither in principle trumps the other. But the weight to be accorded to each will depend on the particular circumstances of the case.....

In a press release, the Christian Institute (which funded the B&B owner's appeal) however pointed to language in Lord Dyson's opinion that led it to conclude there was still a possibility in future cases for some B&B's to justify restricting rooms to married couples.

Hopi Tribe Sues Navajos Over Access To Religious Sites

The Verde Independent reported yesterday on a lawsuit filed in federal district court in Arizona by the Hopi Indian Tribe against the Navajo Nation over access to Navajo land by Hopi religious practitioners. A 2006 agreement between the two tribes purporting to settle a decades-old dispute permits members of one tribe to enter the land of the other without a permit for religious practices. In addition Hopis were given the right to collect 18 eaglets from Navajo land each year. However now there is a dispute over whether Hopis may access religious shrines that are on specific "allotments"-- parcels held by the federal government for individual Navajos. The Hopis claim that the agreement allows them to access sites for the sacred gathering of golden eagles even if they are within allotments. The Navajos say that allotments are off limits to the Hopis. The issue is complicated by the fact that the map that was part of the 2006 agreement is considered confidential and was filed with the court under seal.

Wisconsin Supreme Court Dismisses As Moot Appeal Seeking Recognition of "Mature Minor" Doctrine For Religious Objections To Medical Treatment

In a 4-3 decision in Dane County v. Sheila W., (WI Sup. Ct., July 10, 2013), the Wisconsin Supreme Court dismissed as moot an appeal by a Jehovah's Witness asking the court to accept the "mature minor" doctrine as part of Wisconsin law. The doctrine permits older minors who can demonstrate sufficient understanding and appreciation of the consequences of their decision to independently make medical treatment decisions involving their own care, without parental consent. In this case, a trial court had appointed a temporary guardian for a 15-year old after neither she nor her parents would consent to a needed blood transfusion. The minor sought the ruling so she can make future decisions on her own to refuse blood transfusions. Writing for the 3 dissenters, Judge Gableman said: "this court has a responsibility to decide matters of great public importance that are likely to recur but evade appellate review." AP reports on the decision.

Challenger To County Commission Invocations Cannot Proceed As "Jane Doe"

In Doe v. County of Franklin, Missouri, (ED MO, July 3, 2013), a Missouri federal district court refused to allow plaintiff, who is challenging Christian invocations at County Commission meetings (see prior posting), to continue to pursue the case under a pseudonym. Plaintiff claimed she will be harassed and driven from the community if her name is made public. The court held, however:

plaintiff’s concerns do not overcome the constitutionally-embedded presumption of openness in judicial proceedings. Plaintiff has availed herself of the court system and in doing so, she has invited public scrutiny of her claims. And as noted, a hostile public reaction and the prospect of embarrassment are insufficient to justify proceeding anonymously.... Finally, plaintiff’s continued anonymity will jeopardize defendants’ legitimate concern that they will be unable to engage in meaningful discovery to explore the factual basis of plaintiff’s allegation that she was offended by defendants’ conduct.

Kosher Certifiers Tell ICANN That ".kosher" gTLD Should Be Rejected Along With ".halal"

As part of the process being followed by the Internet Corporation for Assigned Names and Numbers (ICANN) in approving numerous new generic top level domains (gTLD), ICANN receives advice from its Governmental Advisory Committee (GAC). As previously reported, the governments of several Islamic countries have raised concern about gTLDs that have religious connotations. An April 11 communique from GAC (full text) reflects some of these concerns:

The GAC recognizes that Religious terms are sensitive issues. Some GAC members have raised sensitivities on the applications that relate to Islamic terms, specifically .islam and .halal. The GAC members concerned have noted that the applicataions for .islam and .halal lack community involvement and support. It is the view of these GAC members that these applications should not proceed.

Earlier this week, The Domains reported that now the 5 largest organizations that certify food as kosher have written a joint letter to ICANN complaining

that the GAC, and ICANN in response, rightly raised concerns about the .halal gTLD application without raising those same concerns about the .kosher application....

The .kosher gTLD application raises the same religious sensitivities referenced in the GAC Beijing Communiqué related to the .halal gTLD application.

Therefore, it is appropriate for ICANN to provide equal treatment of the .halal and .kosher gTLD applications by denying both applications.

The application for the .kosher gTLD indicates that it is designed to promote a competing kosher certification agency that is not part of the big 5-- OK Kosher Certification-- and its clients.

Wednesday, July 10, 2013

Yeshiva High School Abuse Victims of 1970's and '80's Sue Yeshiva University

As reported by the New York Times, on Monday 19 former students at Yeshiva University High School for Boys filed a federal lawsuit against Yeshiva University and others seeking hundreds of millions of dollars in compensatory and punitive damages for alleged sexual abuse by two rabbis formerly at the high school-- the principal and a Talmud teacher. The accused abusers were not reported to authorities, but instead were allowed to leave the school quietly. Recently-retired former Yeshiva University president Rabbi Norman Lamm has apologized for not doing more. (See prior posting.) The 148-page complaint (full text) in Twersky v. Yeshiva University, (SD NY, filed 7/8/2013) alleges:

[F]or several decades, the administrators of Yeshiva University (“YU”) and The Marsha Stern Talmudical Academy− Yeshiva University High School for Boys (“YUHS”), including Rabbi Lamm himself, enclosed themselves in a “cocoon of callousness” by allowing several known sexual predators to assume and remain in exalted positions in YUHS’s administration and faculty.

The complaint alleges causes of action for fraudulent inducement, negligent infliction of emotional distress, deceptive business practices, false advertising, negligent misrepresentation, negligent supervision and retention, and violation of Title IX of the federal Civil Rights Act. Reporting on the filing of the lawsuit, The Forward quoted one of the plaintiffs who said: "It was necessary to file the suit because there was no proper response from Yeshiva University to any of our claims and to any of our pain. They just wouldn’t listen." [Thanks to Scott Mange for the lead.]

Outsourcing Of Alternative School To Christian Institution Violates Establishment Clause

In Kucera v. Jefferson County Board of School Commissioners, (ED TN, July 9, 2013), a Tennessee federal district court held that the Jefferson County (TN) school board violated the Establishment Clause when, for budgetary reasons, it eliminated the county Alternative School and instead contracted with Kingswood School, a Christian institution, to operate the county's program for students who had been suspended or expelled from their regular school. According to the court:

The average student that attended Kingswood would arrive on campus and see a church within the grounds. She would then see an intake staff member who was also an ordained minister. After intake, the student would attend secular classes, but would take home report cards branded with Christian language and symbols.... [S]he would need to have her parents routinely sign and return Family Feedback Forms that also contained bible verses. If she visited Kingswood's website, she would be greeted by the phrases "Christian environment" and "Christian education" among others. Benefactors would receive fundraising correspondence that contained Christian references and iconography, and assemblies would be held in the campus church.

... [T]he facts plainly establish that Kingswood is a religious institution-- a fine institution-- but an institution that should have never sought to operate a public alternative school as part of its ministry....The appearance of governmental endorsement of the Christian faith is too pronounced and non-believers, or students of a different faith, would likely feel divorced from Kingswood, a well-intentioned, but overtly-Christian school.

The principal and a teacher who lost their jobs when the county alternative school closed were awarded damages equal to their lost wages for the year the alternative school closed, plus attorneys fees. The school board was also permanently enjoined from contracting with Kingswood or another religious entity for the operation of its alternative school. (See prior related posting.)