Religion Clause

Tuesday, April 30, 2013

Convicted Philadelphia Monsignor Loses Appeal of Trial Errors

Last June, a Philadelphia, Pennsylvania jury found Msgr. William J. Lynn guilty on one count of child endangerment for enabling or covering up clergy sex abuse by others. (See prior posting.) Now, according to the Legal Intelligencer (April 25), a Philadelphia Court of Common Pleas judge has ruled against Lynn in his appeal of various rulings in the case. In a 235-page opinion in Commonwealth v. Lynn, Judge M. Teresa Sarmina held that it was not erroneous to admit into evidence information about 20 priests whose files Lynn reviewed in his role as secretary of clergy for the Archdiocese of Philadelphia. In this role he reviewed sexual abuse allegations. The challenged evidence went to Lynn's knowledge that priests posed a danger and to his motive of shielding the Church from scandal. The court also rejected Lynn's argument that the child endangerment law under which he was convicted did not cover those who did not directly supervise children.

Monday, April 29, 2013

Supreme Court Denies Review In Church Property Ownership Dispute

The U.S. Supreme Court today denied certiorari in Presbytery of Ohio Valley, Inc. v. OPC, Inc., Docket No. 12-907, cert den. 4/29/2013). (Order List.) In the case, the Indiana Supreme Court, in a 3-2 decision, held that the Presbyterian Church (USA) had failed to show that an express trust attached to property of a break-away congregation. However, the court remanded the case for trial on whether an implied resulting trust had been created by the congregation remaining a member of PC(USA). (See prior posting.) The petition for certiorari sought to have the Supreme Court resolve conflicting views of the Presbyterian Church's Property Trust Clause.

Suit Challenges School's Ban On 6th Grader Handing Out Anti-Abortion Flyers

A lawsuit was filed last week in a Minnesota federal district court challenging the policies of a Minnesota public charter school that prohibited a 6th grader from distributing anti-abortion flyers to her classmates during lunch time. The complaint (full text) in A.Z. v. Nova Classical Academy, (D MN, filed 4/25/2013), recounts that a school administrator told plaintiff and her friends that they could not pass out the flyers because some students find them offensive. The school took the position that below the high-school level, it can ban political, religious and controversial speech. The lawsuit claims that the 6th-grader plaintiff has religious beliefs that compel her to share her faith, beliefs and pro-life viewpoints with friends and classmates at school. It asserts that the school is discriminating against plaintiff's religious, pro-life viewpoint since it permits students to hand out other items such as birthday party invitations. The complaint alleges that the school's literature distribution policy violates plaintiff's free speech, free exercise, due process, equal protection and Establishment Clause rights. Alliance Defending Freedom issued a press release announcing the filing of the lawsuit.

Dutch Farewell Celebration For Queen Beatrix Creates Yom Kippur Conflict For Jews

Holland's Queen Beatrix, who recently turned 75, announced in January that after 33 years she is abdicating the throne and handing the crown over to her son. An official event in Rottrdam to wish the Queen a happy retirement has been scheduled for Sept. 14. JTA reported yesterday that Dutch chief rabbi Binyomin Jacobs says the Jewish community is distressed because the celebration coincides with Yom Kippur and thus many Jews will be unable to attend the farewell event. Jacobs said: "Jews are again faced with a reality in which they don’t belong, and that is painful." Limited availability of the conference center at which the event will be held makes it unlikely that it will be rescheduled.

New American Sikh Congressional Caucus Formed

IANS reported last week that 28 members of Congress from both political parties have joined the new American Sikh Congressional Caucus. The caucus is co-chaired by Rep. Judy Chu (D-CA) and Rep. David Valadao (R-CA). The Caucus plans to focus on issues such as dress regulations that prevent Sikhs from serving in the military; violence and bullying faced by Sikhs in the U.S.; racial profiling; and employment discrimination. [Thanks to Pew Forum for the lead.]

Sunday, April 28, 2013

Israeli Court Rejects Monastery's Suit Seeking Change In Separation Barrier Location

In Israel last week, after a 7-year legal battle a Special Appeals Committee of the Tel Aviv Magistrate's Court rejected a petition from Palestinian landowners in the town of Beit Jala and representatives of the nearby Salesian (Catholic) monastery to have the planned route of the Israel- West Bank separation barrier changed. According to Haaretz and The Guardian, plans call for the Salesian Nuns Convent in the Cremisan Valley (which houses a small community of elderly nuns) and the convent school to remain on the Palestinian side of the barrier, while the related Salesian monastery and the Convent's farmland will remain on the Israeli side. The court rejected on security grounds an alternative route that would have kept the monastery and farmland on the Palestinian side. This would have caused the barrier to run along lower land. (Also, according to a press release by the Society of St. Yves which brought the case to court, apparently it would have required the court to go beyond its jurisdiction and order dismantling of some of the barrier that has already been built.) Petitioners claim that the route upheld by the court was designed by Israel to facilitate an eventual annexation of the settlement of Har Gilo. The court rejected claims that the planned route violates treaties that Israel has signed with the Vatican. The Society of St. Yves pointed out that at least it had previously been successful in getting the convent and school onto the Palestinian side.

Recent Prisoner Free Exercise Cases

In Sweatman v. Rieben, 2013 Ala. Civ. App. LEXIS 96 (AL App., April 19, 2013), an Alabama state appeals court affirmed the dismissal of a prisoner's complaint that honor dorm inmates are required to attend religious services one a month. Plaintiff did not adequately preserve the issue on appeal.

In Perez v. Thaler, 2013 U.S. Dist. LEXIS 56817 (SD TX, March 18, 2013), a Texas federal magistrate judge recommended that a Jewish inmate be permitted to move ahead with his suit seeking transfer to a different prison unit where kosher meals are available.

In Williams v. Farris, 2013 U.S. Dist. LEXIS 57057 (SD IL, April 22, 2013), an Illinois federal district court dismissed a complaint by a pre-trial detainee of an elaborate conspiracy among his defense attorney, the prosecutor, and the state court to hold him for psychiatric review and medicate him in violation of his Muslim beliefs.

In Harrison v. Tarnoff, 2013 U.S. Dist. LEXIS 57634 (ED CA, April 20, 2013), a California federal magistrate judge permitted an inmate to move ahead with his claim that his free exercise rights were infringed when a prison official would not accept his request for a change to a Muslim name.

In Augustin v. Zych, 2013 U.S. Dist. LEXIS 57694 (WD VA, April 23, 2013), a Virginia federal district court dismissed an inmate's habeas corpus petition that alleged his due process and free exercise rights were infringed when he was not permitted to participate in the Rastafarian Ceremonial Meal.

In James v. Askren, 2013 U.S. Dist. LEXIS 58279 (ED WA, April 23, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 58474, April 8, 2013) and dismissed an inmate's suit alleging that several items he brought with him to prison-- two Qu'rans, two kufis, three bottles of prayer oils, incense sticks, a prayer rug and prayer beads-- were improperly removed from a box and apparently eventually donated to a local Islamic center.

In Smith v. Wildermuth, 2013 U.S. Dist. LEXIS 32906 (ND NY, March 11, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 58390, Jan. 24. 2013) and allowed a Muslim inmate to move ahead with his claim that a corrections officer infringed his rights under RLUIPA and the 1st Amendment when he punished him-- including leading a physical attack on him-- for continuing his prayers instead of immediately speaking to him.

In Morrow v. Kelley, 2013 U.S. Dist. LEXIS 57221 (ED AR, April 22, 2013), an Arkansas federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 57220, April 3, 2013) and permitted an inmate to proceed with his free exercise claim that authorities seized two religious books from his cell.

In Goodwill v. Clements, 2013 U.S. Dist. LEXIS 58038 (ED WI, April 22, 2013), a Wisconsin federal district court dismissed, with leave to amend, a former prisoner's claim that pagan inmates have been denied religious items, services, the use of land and have been punished or ignored.

In Powers v. Washington Department of Corrections, 2013 U.S. Dist. LEXIS 58828 (WD WA, April 23, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 58881, March 29, 2013) and dismissed a Muslim inmate's claims that nutritionally deficient meals during Ramadan violated his 1st and 8th Amendment rights. A claim that the Eid-al-Fitr feast was delayed was dismissed without prejudice for failure to exhaust internal remedies.

Saturday, April 27, 2013

9th Circuit Judge Rules Federal Public Defender Entitled To Same-Sex Spousal Health Benefits

In In re Alison Clark, (9th Cir., April 24, 2013), U.S. 9th Circuit Judge Harry Pregerson, acting in his capacity as Chair of the Federal Public Defender Standing Committee, held that the Administrative Office of the United States Courts acted wrongly in denying federal health care benefits to the same-sex spouse of an Oregon assistant federal public defender. Pregerson held that the rejection violated the health care plan’s specific ban on discrimination on the basis of sexual orientation. He also concluded that Oregon’s constitutional ban on recognizing same-sex marriage, as well as the federal Defense of Marriage Act are unconstitutional as violations of equal protection and substantive due process rights. He ordered the Administrative Office of the U.S. Courts to submit the public defender’s health benefits election form to the appropriate insurance carrier and, in the future, process applications without regard to the sex of the spouse or whether their marriage is recognized by their home state. He added that if the Office of Personnel Management blocks this relief, then plaintiff is entitled to monetary relief. The Salem (OR) Statesman-Journal reports on the decision.

Friday, April 26, 2013

Church Members May Challenge Bylaws That Disenfranchised Them

In Congregation of H.O.P.E.-L.I.F.E. Noah's Ark Church, Inc. v. Ramirez, (NY County Sup. Ct., April 23, 2013), a New York state trial court refused to dismiss a suit challenging the election of Richard Ramirez as H.O.P.E.-L.I.F.E.'s pastor. Plaintiffs alleged that after the death of the church's founder in 2007, Ramirez and his assistant pastor orchestrated Ramirez's appointment as pastor to control the church and the real estate that it owns. Plaintiffs claim that defendants disenfranchised exiting church members and created new bylaws to prevent future challenges to Ramirez. The suit, alleging fraud and negligent misrepresentation, seeks to have the bylaws declared null and void. The court rejected the argument that plaintiffs are seeking to have a religious issue resolved by a secular court. Allegations claim only violations of the New York Religious Corporation Law. The court also held that while plaintiff "Congregation" is not a formal entity, but merely the original members of the church, they may still sue by amending the caption of the lawsuit to reflect the name of each individual member.

Israeli Court Vindicates "Women of The Wall" Prayer Activities

In Israel yesterday, a Jerusalem District Court, affirming an earlier Magistrate Court's decision, held that police should not have arrested members of "Women of the Wall" for praying at the Western Wall wearing prayer shawls that, in Orthodox Jewish tradition, are only worn by men. (See prior posting.) The Jerusalem Post reports on the court's decision. The 1981 Regulations for the Protection of Holy Places to the Jews bar performing religious ceremonies at the Western Wall that are "not according to local custom" or that "may hurt the feelings of the worshipers." Judge Moshe Sobell, however, citing a 1994 opinion by Israeli Supreme Court Justice Shlomo Levin, ruled yesterday that "local custom" does not necessarily mean Orthodox Jewish practice. As to public disturbance charges, Sobell ruled that Women of the Wall were not suspected of violent or verbal behavior that would disturb the peace or endanger the public.

4th Circuit Says No Jurisdiction To Review Security Clearance Revocation

In Hegab v. Long, (4th Cir., April 25, 2013), the U.S. 4th Circuit Court of Appeals rejected a claim by an employee of the National Geospatial-Intelligence Agency that his top secret security clearance was unconstitutionally revoked. When Mahmoud Hegab married Bushra Nusairat, a review of his security clearance was conducted. His clearance was revoked, primarily because Nusairat had been employed by the non-profit Islamic Relief U.S.A. Judge Niemeyer, in an opinion in which Judge Davis concurred, held that the court lacks jurisdiction to review the merits of a security clearance determination, and that Hegab's constitutional allegations are merely a recharacterization of his challenge to the merits of the determination.

Judge Motz concurred, holding that the court lacked jurisdiction to review an individualized security clearance determination even when a constitutional violation is alleged. Judge Davis concurred, concluding that a colorable constitutional claim had been asserted, but that it is a non-justiciable political question. AP reports on the decision.

Wealthy Wall Street Church Faces Controversy and Litigation

In a front-page article yesterday, the New York Times called national attention to the controversy raging in New York's Trinity Wall Street Episcopal parish over whether the church is spending enough of its extensive wealth on charity and promoting Episcopal belief. The Village Voice carried a long article last December on the turmoil at the historic Lower Manhattan church. The Times says that disclosures in a pending lawsuit show that Trinity's assets-- largely Manhattan real estate-- amount to more than $2 billion. The February lawsuit was filed by Jeremy C. Bates, a former leader of the church's Congregational Council who believes the church is being too corporate and not acting on its values. The complaint (full text) in Bates v. Rector, Church Wardens, and Vestrymen of Trinity Church, in the City of New York, (Sup. Ct. NY County, filed 2/11/2013), challenges the manner in which votes are counted in the election of church wardens and vestrymen. Bates wants the court to rule that even in uncontested elections, candidates need to obtain support of a majority of the votes cast in order to be elected. The church argues that in uncontested elections, "no" votes can be ignored. The suit also seeks access to Trinity's financial statement.

Suit Challenges High School's Assemblies That Promoted Christianity

The American Humanist Association announced yesterday that this week it filed a federal lawsuit against a Flowood, Mississippi high school asserting an Establishment Clause challenge to three mandatory school assemblies that promoted Christianity. The complaint (full text) in M.B. v. Rankin County School District, (SD MS, filed 4/24/2013) alleges that Northwest Rankin High School held mandatory assemblies for various grade levels, led by members of the Pinelake Baptist Church. The Assembly began with a video about four troubled young men who found hope through Jesus. Then speakers urged students to embrace Christianity

Thursday, April 25, 2013

Supreme Court Hears Arguments In Title VII Retaliation Case Brought By Doctor Claiming Ethnic and Religious Discrimination

The U.S, Supreme Court yesterday heard oral arguments in University of Texas Southwest Medical Center v. Nassar, a Title VII retaliation case. (Transcript of oral arguments.) 42 USC 2000e-3(a) prohibits discrimination against an employee because that employee has opposed a discriminatory employment practice. As explained by Kevin Russell, recapping the argument on SCOTUS Blog, the issue in the case is whether an employee who claims retaliatory action must show that retaliation was the "but for" cause of his termination, or whether it is enough that it was one of several motivating factors. In this case, as summarized by Reuters, a physician of Middle Eastern descent, who was a medical school faculty member and a physician at an affiliated AIDS clinic, resigned his faculty position, complaining of discriminatory comments by his direct supervisor about his ethnic and religious background. He sought to be employed directly by the AIDS clinic, but the medical school prevented the hiring, claiming that an existing policy required clinic employees to have a university affiliation. SCOTUS Blog has links to all the briefs in the case.

Canadian Court Permits Hasidic Synagogue To Continue Despite Zoning Violation

Canada's National Post reports that last week a Quebec Superior Court ruled that given the "exceptional circumstances," a Hasidic synagogue in Montreal's Outremont neighborhood can continue to operate in violation of the city's zoning bylaw. The half-block on which the converted duplex that houses the synagogue is located is zoned residential. The city has accommodated the synagogue's activities since 1980 despite the zoning violation. The zoning controversy is part of long-running tensions between the Hasidic community and its neighbors. The decision in Montréal (Ville de) c. Congrégation Munchas Elozer Munkas, (Cour Superieure, April 18, 2013) is available online in French.

On Remand From Superme Court, Canadian Trial Court Says Key Witness Must Remove Niqab

As previously reported, last year in the case of R v. N.S., the Canadian Supreme Court held that whether a Muslim woman could be required to remove her niqab (full face veil) while testifying in court in a preliminary hearing should be decided by balancing concerns about trial fairness with religious freedom rights of the witness. In the case, N.S. (now 37 years old) accuses her uncle and cousin of abusing her 25 years ago. The Supreme Court remanded the case to the trial court to apply the balancing factors. Yesterday, according to the Toronto City News, Ontario trial Judge Norris Weisman handed down his decision requiring N.S. to remove her niqab while testifying. His opinion said in part:

I am satisfied by the evidence I have heard … that [her] wish to wear her niqab in court is based on a religious belief that is both sincere and strong Permitting her to wear her niqab while testifying in court does, however, create a serious risk to trial fairness. She is the key witness in the Crown’s case. Her credibility is very much in issue.

Journalist Claims Emory Law Prof-Rabbi Supported His Own Scholarship Through A Second Fictitious Persona

As previously reported, earlier this month an investigative reporter revealed that Emory Law Professor, Rabbi Michael Broyde, had created a sockpuppet (fictitious online identity)-- Rabbi Hershel Goldwasser-- which he used for 20 years to publish in scholarly journals, take part in online dialogues and even join a rival rabbinical organization. Now the same reporter in an article yesterday on The Jewish Channel charges that Broyde also created a second fictitious persona-- David Tzvi Keter-- and used him in an elaborate fiction to support Broyde's own scholarship.

At the center of this latest controversy is a 2009 article published by Broyde as a special supplement to the journal Tradition. The article, titled Hair Covering and Jewish Law: Biblical and Objective (Dat Moshe) or Rabbinic and Subjective (Dat Yehudit)?, argues that the prohibition in Jewish law on married women appearing in public with their hair uncovered is a rabbinic, not a biblical, prohibition. A year after the article appeared, the website Hirhurim published a letter purportedly from David Ketter claiming that several prominent Israeli rabbis he had consulted in 1949 had taken a rather lenient view of a married woman's obligation to cover her hair. In 2011, two rabbis published an article in the journal Dialogue For Jewish Issues & Ideas strongly criticizing Broyde's 2009 article. Broyde responded to the Dialogue article through a posting on Hirhurim. As a preliminary point he said:

I want to note additional sources that support my position which have come to light since my article came out. One, a recollection by David Keter of a conversation he had with Rav Shach, tz”l.

Wednesday, April 24, 2013

French Parliament Approves Same-Sex Marriage

In France yesterday, the lower house of Parliament, the National Assembly, by a vote of 331-225, approved a bill legalizing same-sex marriage. The bill was approved by the Senate earlier this month. Legifrance has links to the text of the bill, reports and legislative votes (all in French). As reported by CNN and the New York Times, a group of senators have filed a challenge with the Constitutional Council, which has a month to rule on the law's constitutionality. It is expected that the bill will be upheld and that President François Hollande will sign it in time for the first same-sex marriages to take place this summer. If finally approved, France will be the ninth European country to permit same-sex marriage. The others are Belgium, Denmark, Iceland, the Netherlands, Norway, Portugal, Spain and Sweden. (Background.)

6th Circuit Hears Oral Arguments In Homeschooling Asylum Case

As reported by the Christian Post and AP, the U.S. 6th Circuit Court of Appeals yesterday heard oral arguments in Romeike v. Holder, a case that is being widely followed by homeschool advocates. At issue is whether asylum should be granted to a German family who came to the United States because of Germany's mandatory school attendance law that does not permit homeschooling. 8 U.S.C. § 1101(a)(42)(A) defines a refugee who may be entitled to asylum as a person who is unable or unwilling to return to his home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."

The Romeikes emphasized in oral argument that theirs is a religious freedom claim. They say in their brief (full text) that they chose homeschooling because of anti-Christian and sexually inappropriate elements of the public school curriculum. They contend:

It is beyond dispute that religious homeschooling is a valid exercise of basic human rights, not just in the United States but also under international human rights norms. Germany is obligated to protect these rights under both its own Constitution and its voluntary adoption of international human rights treaties. Instead, Germany punishes homeschoolers for acts of conscience. The Romeikes will suffer such persecution if they are forced to return to Germany.

On the other hand, the Justice Department in its brief (full text) contends:

[T]he record contains no evidence suggesting that the government of Germany created the mandatory attendance requirement in order to punish homeschoolers or religious people, or that the law is unfairly administered in such a way that homeschoolers or members of any religion are specifically targeted.