Washington Court Enjoins Enforcement of Pharmacy Board Rules

A Washington federal district court has granted a preliminary injunction barring enforcement of Washington State Board of Pharmacy regulations that require pharmacists to fill all prescriptions even if doing so violates their religious beliefs. In Stormans, Inc. v. Selecky, (WD WA, Nov. 8, 2007), the court found that the regulations target religious beliefs:

The evidence thus far presented to the Court strongly suggests that the overriding objective of the subject regulations was, to the degree possible, to eliminate moral and religious objections from the business of dispensing medication.

... [T]he enforcement mechanism of the new law appears aimed only at a few drugs and the religious people who find them objectionable.

Applying strict scrutiny to the regulations, the court concluded:

the interests promoted by the regulations have more to do with convenience and heartfelt feelings than with actual access to certain medications. Patients understandably may not want to drive farther than the closest pharmacy and they do not want to be made to feel bad when they get there. These interests are certainly legitimate but they are not compelling interests of the kind necessary to justify the substantial burden placed on the free exercise of religion.

... On the evidence now before it, the Court cannot say that the subject regulations advance a compelling state interest and they are narrowly tailored to accomplish their announced purpose.... [T]he evidence suggests that the burden on the religious practices of plaintiffs is intentional not incidental, and substantial not minimal.

Relying on these findings, the court enjoined enforcement of the regulations against any pharmacy or pharmacist who refuses to fill a prescription for Plan B emergency contraceptives if they immediately refer the patient to a nearby source for it. Today's Seattle Times reports on the decision.

Federal Court Rejcts Attempt To Bar NJ Civil Rights Proceedings

In Ocean Grove Camp Meeting Association of the United Methodist Church v. Vespa-Papaleo, 2007 U.S. Dist. LEXIS 82577 (D NJ, Nov. 7, 2007), a New Jersey federal district court applied the Younger abstention doctrine, refusing to enjoin an investigation by the New Jersey Division on Civil Rights of a discrimination complaint filed by a lesbian couple. The Ocean Grove Camp Meeting Association refused to permit the couple to use its Boardwalk Pavilion for their civil union ceremony. (See prior posting.) Under the Younger doctrine, federal courts have discretion to abstain from exercising jurisdiction where their judgment would interfere with an ongoing state proceeding. The Association will be able to raise its constitutional objections in the state administrative proceeding. The New Jersey Star-Ledger covers the court's decision.

Mt. Soledad Establishment Clause Challenge Dismissed

A California federal district court has dismissed the Establishment Clause challenge to a federal law that took from the City of San Diego the Mt. Soledad Veterans' Memorial with its large cross. In Trunk v. City of San Diego, 2007 U.S. Dist. LEXIS 82647 (SD CA, Nov. 7, 2007), the court dismissed for lack of standing the challenge to Public Law 109-272 brought by plaintiff Steve Trunk, and also dismissed the City of San Diego from the remainder of the litigation.

The court rejected three theories of standing. It held that any denial of use of the Memorial as it now exists was not impacted by the mere transfer of land ownership. It rejected general taxpayer standing because invalidating the land transfer would not redress any injury Trunk suffered. Finally the court rejected Trunk's argument that the transfer gave him standing because it prevented the enforcement of a previous injunction based on the California Constitution. The U.S. as owner is not subject to the California Constitution. The court said:

Public Law 109-272 merely provides for the acquisition of land, the compensation of the land's owners, and the maintenance of the property as a veterans memorial. These are not religious actions, nor do they injure Trunk.... Trunk tries to conflate acquisition of the Mt. Soledad property with unconstitutional operation of the property.

The court additionally pointed out that if it were to invalidate the law being challenged, the federal government would still own the Memorial under a transfer to it by the city which was ultimately upheld by the courts. NBC San Diego covers the decision in a short story.

Georgia Governor Plans Prayer Service For Rain

Georgia's Governor Sonny Perdue is sending out invitations to a prayer service for rain to be held at the state Capitol next week. Wednesday's Atlanta Journal-Constitution reports on the move, taken as Georgia faces a record drought. Perdue, son of a Baptist preacher, has held similar services in the past. A spokesperson for the Governor said that he recognizes there is nothing the government can do to get more rain, so "the request has got to be made to a higher power." The AP reported yesterday that planners, who are inviting leaders from several faiths to the service, say the prayer service will be moved inside the Capitol in case of rain. [Thanks to Alliance Alert for the lead.]

Church Leader Gets Probation On Sacramental Marijuana Charges

Wednesday's Maui News reports that in Wailuku, Hawaii, 72-year old James Kimmel was ordered to pay a $3,000 fine and placed on five years probation after pleading no contest to charges of second-degree commercial promotion of marijuana and possessing drug paraphernalia. Kimmel, founder of the Religion of Jesus Church, argued that he was smoking marijuana and furnishing it to others as part of his religious beliefs that marijuana was a required sacrament. The court however rejected a Free Exercise defense. The court also ordered Kimmel to not to sell, possess or use alcohol or illegal drugs while on probation.

Suit Threatened Over Surveillance of Religious Order's Building

The Thomas More Law Center is threatening to sue Northville Township (MI) officials over their alleged surveillance of a house owned by the religious order, Miles Christi. Journal Newspapers yesterday reported that the surveillance camera was apparently intended to document increased parking density at the house in order to support the township's request that the religious order submit a plan and apply for a zoning variance. Thomas Moore Law Center's Richard Thompson says that the township's targeting of the religious order violates the Religious Land Use and Institutionalized Persons Act.

Sonoma CA Will Not Have Creches On City Plaza

Yesterday evening, the Sonoma (CA) City Council voted 3-2 against a proposal that would have for the first time permitted creches and other religious displays to be placed on Sonoma Plaza. The proposed law would have allowed groups to put up any kind of unattended display, so long as it was not obscene. Reporting on developments, the Sonoma News said speakers objected that this policy would permit swastikas and Confederate flags, as well a nativity scenes. The Sonoma Valley Ministerial Association had opposed the new policy, saying it would not serve the religious and spiritual health of the community. The crucial third vote against the proposal was obtained in a deal in which the existing policy permitting non-religious displays was also rescinded.

Civil Rights Groups Urge Investigation of White House Faith-Based Office

The Forward reports that the Coalition Against Religious Discrimination-- a 70 member umbrella civil rights group-- sent a letter on Nov. 2 to the House Committee on Oversight and Government Reform urging it to investigate the White House Office of Faith Based and Community Initiatives. The letter expressed concern that FBCI "may have been utilized to serve partisan political goals; may violate federal regulations, laws and the Constitution; and may lack proper monitoring." However a number of Jewish groups that would ordinarily be expected to join the letter did not sign it because they felt it was insufficiently nuanced, particularly in its criticism of the Administration's views on religious groups' rights to hire on the basis of religious affiliation. The Forward says: "The area of employment is particularly sensitive for Jewish groups, which do not want Jews and other religious minorities to face unlawful discrimination, but also want to defend Jewish institutions, such as federations, that have for decades accepted government money for social programs while recruiting Jews for certain staff positions."

Negligence Claims Against Religious Order In Sex Abuse Case Survive 1st Amendment

In John Doe Cs v. Capuchin Franciscan Friars, 2007 U.S. Dist. LEXIS 82072 (ED MO, Oct. 11, 2007), a Missouri federal district court refused to dismiss on First Amendment grounds a negligence claim against The Capuchin Franciscan Friars. Plaintiff claimed that defendants should have known that Catholic high school teacher Father Thaddeus Posey had a history of sexually abusing minors, and that defendants failed to act to protect students from him. In permitting the claim to proceed, the court said: "There is no allegation (or defense at this point in the case) that ecclesiastical and canon law is relevant to this case. The factual issues raised ... appear to be secular in nature and do require this Court to not resolve or inquire into any religious doctrines of Defendants."

College's Civility Code Enjoined In Suit By Students Who Stomped On Religious Flag

Today's San Francisco Chronicle reports that a federal magistrate judge indicated that he will issue a preliminary injunction barring San Francisco State University from enforcing in any disciplinary proceeding its rule requiring students to be civil to one another. The policy was the basis of a disciplinary investigation into actions of members of the College Republicans who stomped on two flags bearing the name of Allah during an anti-terrorism rally last year. While no violations were found, College Republicans in the lawsuit alleged that their free expression was chilled by the mere existence of the civility code that could be used against them in future demonstrations. University officials said they never intended the civility code to be used as the basis for disciplinary actions, and that they will rewrite the rules to make that clear.

No Free Exercise Claim For Limiting Disclosures to Clergyman

A Utah federal district court has held that the free exercise rights of Utah Department of Corrections employee Vivian Kosan were not violated when she was reprimanded for telling a religious leader about her charges of sexual harassment against Brandon Burr, one of her superiors in the Department of Corrections (DOC). In Kosan v. Utah Department of Corrections, 2007 U.S. Dist. LEXIS 82122 (D UT, Nov. 2, 2007), the court rejected Kosan's claim that banning her from speaking to Burr's LDS Stake President substantially burdened her free exercise rights and targeted "religious orders that take a proactive approach to problems encountered by their members." The court said that the order to refrain from discussing the alleged harassment was not specifically directed to communications with clergy, but rather to communications with "anyone" regarding the allegations and their investigation, all treated as confidential under DOC policies.

Rules on Bibles For Spectators and Athletes at 2008 Olympics Attract Notice

WorldNet Daily reported yesterday that Bibles will be among those items banned from housing units being constructed for athletes participating in the 2008 Beijing Olympics. The report generated complaints from members of Congress, among others. (WorldNet Daily). However later yesterday, Townhall.com said that the U.S. Olympic Committee received confirmation from Beijing Olympic officials that there will be no restrictions on Bibles being brought into the Olympic village.

Separately, the Olympics website says that spectators entering the country to attend the Olympics should take no more than one Bible into the country. China generally restricts imports of Bibles. The government-controlled Nanjing Amity Printing Co. has a monopoly on the printing of Bibles inside China. Another portion of the Olympics website tells visitors that "China is a country with religious freedom and respects every religion", and lists information on Buddhist, Christian and Muslim places of worship in Beijing.

Little notice has been given to another entry restriction for visitors posted on the Olympic site just before its warning about Bibles: "Any printed material, film, tapes that are 'detrimental to China's politics, economy, culture and ethics' are also forbidden to bring into China."

In Wales, Sikh Teen Challenges School's Jewelry Ban

In the United Kingdom, a Sikh teenager is challenging her school's dress code that prevents her from wearing a silver Kara bangle, one of the five symbols of Sikh identity. icWales yesterday reported that 14-year old Sarika Watkins-Singh was sent home by Aberdare Girls’ School for violating a regulation that limits girl's jewelry to a wrist watch and one pair of plain metal stud earrings. Watkins-Singh plans to file an appeal of the Welsh school's ruling in the High Court, claiming that it violates the 1976 Race Relations Act. The Equality and Human Rights Commission has advised that Sikhs are recognized as a racial group for purposes of that Act.

Catholic Bishops Counsel Was Formerly With Becket Fund

The Catholic News Service yesterday ran a profile of the new general counsel for the U.S. Conference of Catholic Bishops, Anthony R. Picarello Jr. An expert in religious freedom issues, Picarello previously served as vice president and general counsel for the Becket Fund For Religious Liberty. Picarello said his role with the Conference of Bishops is to help preserve "the freedom of the bishops to carry out the mission of the church." Picarello assumed his new position in mid-September.

House Passes Controversial Employment Non-Discriminnation Act

The New York Times reports that the U.S. House of Representatives yesterday passed H.R. 3685, the Employment Non-Discrimination Act by a vote of 235-184. The bill prohibits employment discrimination based on an individual’s actual or perceived sexual orientation. The law does not apply to religious organizations, nor does it apply to any school or college controlled by a religious organization or whose curriculum is directed toward the propagation of a particular religion. Opponents, however, argue that this exemption is still not broad enough. House Republican Whip Roy Blunt complained that the exemption does not apply to Christian bookstore owners or other small businesses in which people of faith are an integral part of the workforce. (Christian Newswire). Others claim that the bill "would require Christian organizations and pro-family groups who teach about the sin of homosexuality to hire gays." (Christian Post). The bill ultimately received backing of major civil rights groups even though it was amended to eliminate protection for transgender employees. (PageOneQ). (See prior related posting.) [revised]

Recent Prisoner Free Exercise Cases

In Grate v. Huffman, 2007 U.S. Dist. LEXIS 81790 (WD VA, Nov. 5, 2007), a Virginia federal district court rejected plaintiff's claim alleging that prison food supervisors failed to provide him with a proper Eid feast. Plaintiff alleged that the extra piece of fruit served with his meal was insufficient to properly observe the feast. The court found that the plaintiff failed to show that the meal served him placed a substantial burden on his religious rights or that it offended his religious beliefs.

In Blount v. Jabe, 2007 U.S. Dist. LEXIS 81789 (WD VA, Nov. 5, 2007), a Virginia federal district court rejected plaintiff prisoner's First Amendment and RLUIPA claims alleging that on two different dates the rules for Common Fare diets were violated because the Common Fare meal contained fish and dairy products together. The court found no intentional conduct that deprived plaintiff of his rights. It also concluded that no substantial burden was placed on plaintiff's free exercise of religion.

In Wares v. Simmons, 2007 U.S. Dist. LEXIS 81351 (D KS, Oct. 31, 2007), a Kansas federal district court upheld prison restrictions on the property that a prisoner can possess after he was sanctioned for refusing to participate in a sexual abuse treatment program. Plaintiff challenged a rule that permitted him only to possess primary religious texts of his faith, and not other religious books. Considering the claim after a remand by the 10th Circuit, the court held that preventing a Jewish prisoner from possessing the "Tanya" and/or the "Tehillim" did not substantially burden his exercise of religion. Moreover the policy served legitimate penological interests and that plaintiff had the alternative of donating his books to the prison library and using them there.

In Hewitt v. Henderson, 2007 U.S. Dist. LEXIS 80812 (WD LA, Sept. 6, 2007), a Louisiana federal district court dismissed a prisoners free exercise and equal protection claims. Under extended lockdown rules, plaintiff was not released from work for Friday Muslim prayer. He was, however, permitted to pray in his cellblock. The court found no violation of the prisoner's constitutional rights.

In Tirone v. Trella, 2007 U.S. Dist. LEXIS 79812 (D NJ, Oct. 29, 2007), a New Jersey federal district court rejected a free exercise challenge to a jail's high security lockdown policy that prevented plaintiff from attending weekly Jumah prayer services.

2008 Religious Freedom Moot Court Problem Released

This year's National Religious Freedom Moot Court competition, hosted by George Washington University Law School, is scheduled for Feb. 22-23, 2008. The competition is open to selected teams of second and third year students from ABA-accredited law schools. This year's problem was released earlier this week. Teams will argue a case involving a challenge to the Army's regulation of proselytizing activity by military chaplains. A second issue involves the extent to which the First Amendment and the Religious Freedom Restoration Act limit the ability of the armed forces to regulate the content of chaplains' worship services.

"In God We Trust" Posters Aproved For California School District Classrooms

KGET News reported yesterday that, after much debate, Kern High School District trustees in Bakersfield, California approved a proposal to display in every district classroom a poster portraying the Bill of Rights, The Constitution, the Declaration of Independence, and the national motto "In God We Trust." (See prior related posting.)

White House Meeting With Israeli Religious Leaders Will Discuss Temple Mount

Arutz Sheva reported last Sunday that, ahead of the planned Annapolis Mid-East peace talks, an unusual three-day meeting has been scheduled by the White House with Israeli rabbinical leaders, along with members of the Islamic Wakf and Israeli Christian leaders. Reportedly the Washington meetings will discuss a proposal for the Jerusalem "Holy Basin" to be administered by a joint committee, rather than remain under Israeli sovereignty. During one of Secretary of State Condeleezza Rice's visits to Israel last month, a secret meeting with Jewish, Muslim and Christian religious leaders to discuss the Temple Mount took place. Following that meeting, Rice said that she understood that religious matters were at the root of the disagreements, but said that "if this matter is not solved, then nothing will be solved." The invitees to the White House meeting include Rabbi She'ar-Yashuv Cohen, Chief Rabbi of Haifa, who is strongly opposed to any Israeli withdrawal from the Temple Mount. He believes it should be open to Jewish worship and a synagogue should be constructed there. [Thanks to Joel Katz for the lead.]

Sunni-Shiite Rivalries In New York Prisons

An article in today's New York Sun explores the growing tensions in new York state prisons between Sunni and Shiite Muslims. All but one of the Muslim chaplains in the New York prison system is Sunni. Shiite prisoners have been demanding their own chaplains and their own separate Friday religious services. The only prison Shiite imam in the state is currently precluded from entering any New York prison pending an internal investigation into whether he broke an undisclosed regulation.