Religion Clause

Tuesday, August 20, 2013

Religions of U.S. House Members Mapped

BuzzFeed yesterday posted an interesting set of maps that illustrate by district the religious affiliation of all 435 members of the U.S. House of Representatives. The posting adds:

There are 31 religions represented in the House, including 26 different sects of Christianity. Catholics make up the largest group with 136 members, followed by Baptists with 66 members, Methodists with 45 members, Anglicans/Episcopalians with 35 members, Presbyterians with 28 members, and Jews with 22 members. There is only one atheist.

Apaches Want Museum To Acknowledge That Objects Are Sacred and Part of Their Cultural Patrimony

The New York Times yesterday reported on a dispute over 77 Native American items in the collection of the American Museum of Natural History. The objects, include headwear, feathers, bows and arrows, medicine rings and satchels containing crystals and charms. The Museum agreed four years ago to return the objects to the Apache tribe, but the Apaches insist that the Museum first designate the items as "sacred" and "items of cultural patrimony"-- terms defined in the Native American Graves Protection and Repatriation Act. The Museum is only willing to refer to the objects as "cultural items." The Times quotes David Tarler, an expert on repatriation, who explains:

some Indian tribes feel the use of the term “cultural patrimony” in the documentation amounts to an acknowledgment that the objects should never have been removed from tribal hands without consent.... [S]uch an admission is “an important matter of healing” for those tribes. “They want affirmation that they have always owned the objects tribally”....

Catholic Non-Profit Sues Challenging Contraceptive Mandate Compromise

Now that the Department of Health and Human Services has issued final rules providing a compromise for religiously sponsored non-profits such as hospitals and colleges that object to the Affordable Care Act's contraceptive coverage mandate, suits challenging those rules are beginning to be filed by non-profits whose earlier challenges were dismissed on ripeness grounds. Yesterday the American Freedom Law Center announced the filing of this type of action on behalf of Priests for Life, whose earlier suit had been dismissed on ripeness grounds last April. The new complaint (full text) in Priests for Life v. U.S. Department of Health and Human Services, (D DC, filed 8/19/2013) alleges:

... Priests for Life, a Catholic organization, is morally prohibited based on its sincerely held religious convictions from cooperating with evil. Priests for Life objects to being forced by the government to purchase a health care plan that provides its employees with access to contraceptives, sterilization, and abortifacients, all of which are prohibited by its religious convictions. This is true whether the immoral services are paid for directly, indirectly, or even not at all by Priests for Life. Contraception, sterilization, and abortifacients are immoral regardless of their cost. And Priests for Life objects to the government forcing it into a moral dilemma with regard to its relationship with its employees and its very survival as an effective, pro-life organization.

Monday, August 19, 2013

NJ Governor Signs Bill Banning Conversion Therapy; Says He Disagrees With Church's View of Homosexuality As Sinful

New Jersey Governor Chris Christie today signed A 3371, a bill that bans licensed mental health, social work and counseling professionals from engaging in in sexual orientation change efforts with a person under 18 years of age. In his signing statement (full text), Christie said that while he is concerned about limiting parental choice, exposing children to the mental health risks of conversion therapy without clear evidence of benefits that outweigh the serious risks is not appropriate. A press release from the governor's office announcing the signing included an exchange between Christie and CNN's Pierce Morgan:

Piers Morgan: Is homosexuality a sin?

Governor Christie: Well my religion says it’s a sin. I mean I think, but for me, I’ve always believed that people are born with the predisposition to be homosexual. And so I think if someone is born that way it’s very difficult to say then that’s a sin. But I understand that my Church says that, but for me personally I don’t look at someone who is homosexual as a sinner.

USA Today reports on the bill signing.

Mediation In Litigation Over Sale Of Historic Torah Ornaments Breaks Down

AP reported last week that mediation has failed in the lawsuits between Newport, Rhode Island's historic Touro Synagogue and New York City's Congregation Shearith Israel that claims that it owns Touro. (See prior posting.) The dispute began with a decision in 2010 by Touro Synagogue to sell its valuable colonial Torah ornaments (now on loan to the Boston Mueum of Fine Arts) in order to endow future maintenance and clergy salaries. Shearith Israel opposes the sale. Touro Synagogue is celebrating its 250th anniversary this year.

Pakistani Cleric Charged With Planting Blasphemy Evidence Acquitted For Lack of Witnesses

In a widely-followed case in Pakistan last year, a court dismissed blasphemy charges that had been brought against a Christian girl, Rimsha Masih, after it appeared that a local mullah had planted charred pages from a Qur'an in the other papers that Masih was carrying in order to strengthen the case against her. (See prior posting.) Subsequently police arrested the mullah, Khalid Jadoon, and charged him with blasphemy for tearing out the pages he planted. However, Pakistan Today reports that on Saturday, Jadoon was acquitted for lack of evidence. All the witnesses in the proceedings retracted their prior statements against Jadoon.

Sunday, August 18, 2013

Recent Prisoner Free Exercise Cases

In Kaufman v. Pugh, (7th Cir., Aug. 16, 2013), the 7th Circuit held that an inmate's atheist study group request should be treated on an equal footing with requests by religious groups. Before denying the request for lack of interest, there must be a way for inmates to designate atheism as their alternative religious viewpoint. Denial of a new religious emblem and of used books sent to plaintiff was upheld.

In Jackson v. Phoenix, 2013 U.S. Dist. LEXIS 112974 (SD IL, Aug. 12, 2013), an Illinois federal district court permitted an inmate to proceed with his free exercise and RLUIPA claim that he was denied a halal diet.

In Clay v. Parker, 2013 U.S. Dist. LEXIS 113028 (WD TN, Aug. 12, 2013), a Tennessee federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 113410, July 23, 2013) and dismissed an inmate's free exercise and RLUIPA suit on statute of limitations grounds, holding that his administrative remedies were exhausted when plaintiff completed the internal prison system's complaint system, and not at the later date that he completed the Tennessee Human Rights Commission process.

In Rose v. Muhammed, 2013 U.S. Dist. LEXIS 113197 (SD NY, Aug. 7, 2013), a New York federal district court adopted a magistrate's recommendation (Rose v. Masiey, 2013 U.S. Dist. LEXIS 113741, July 16, 2013), and dismissed for failure to exhaust administrative remedies an inmate's complaints that the handling of food at Rikers Island facility led to meals that failed to comply with Halal requirements.

In Garnica v. Washington Department of Corrections, 2013 U.S. Dist. LEXIS 114322 (WD WA, Aug. 13, 2013), a Washington federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 114328, June 19, 2013) and dismissed a Muslim inmate's complaint regarding the adequacy of Ramadan meals and timing of the Eid ul-Fitr feast.

In Nellum v. Stiltner, 2013 U.S. Dist. LEXIS 114476 (ED CA, Aug. 12, 2013), a California federal magistrate judge recommended dismissing an inmate's free exercise complaint that his Bible was missing following a cell search.

In Coleman v. Jabe, 2013 U.S. Dist. LEXIS 114551 (WD VA, Au. 13, 2013), a Virginia federal district court dismissed a Salafi Muslim inmate's challenge to policies that establish an official compact-disc vendor; establish an official prayer-oil vendor; omit halal meat from VDOC's "Common Fare" diet; and result in grouping Salafi Muslims with Sunni Muslims for group worship.

In Nzaddi v. Dinardo, 2013 U.S. Dist. LEXIS 115508 (D MA, Aug. 14, 2013), a Massachusetts federal district court dismissed a transgender Bah'ai inmate's claims relating to wearing women's "religious headwear" for modesty, the practice of several holistic rituals, and "a religious-dietary syntax" involving unpeeled, unprocessed, uncooked and chemical-free food.

In Avery v. Elia, 2013 U.S. Dist. LEXIS 115775 (ED CA, Au. 14, 2013), a California federal magistrate judge allowed a Wiccan inmate to move ahead with his complaint that he was denied use of a fire pit and his religious altar was confiscated.

In Gray v. Stolle, 2013 U.S. Dist. LEXIS 116478 (ED VA, Aug. 16, 2013), a Virginia federal district court, while dismissing an inmate's other claims, allowed the inmate (who was studying Judaism) to move ahead with his complaint that his request for a kosher diet was denied.

In Depaola v. Ray, 2013 U.S. Dist. LEXIS 116553 (WD VA, Aug. 16, 2013), a Virginia federal district court adopted, with modifications, a magistrate's recommendations and rejected a Muslim inmate's complaint that female guards might have witnessed him being strip searched. It dismissed on qualified immunity grounds plaintiff's damage claims complaining about Jumu'ah services on muted DVD, and his inability to perform wudu and pray while on a transport to a court hearing. The court remanded to the magistrate for further consideration the issue of whether plaintiff is entitled to an injunction requiring close-captioning of the DVD Jumu'ah services. UPDATE: The magistrate's opinion is at 2013 U.S. Dist. LEXIS 117182, July 22, 2013.

Religious Group Leader's Conviction For Sexual Contact With Minor Upheld

In State of New Mexico v. Bent, (NM App., Aug. 15, 2013), the New Mexico Court of Appeals upheld the convictions of the leader of a New Mexico religious community for criminal sexual contact with a minor and contributing to the delinquency of a minor. According to the court:

Defendant was the leader of a religious group, and his convictions were based on unclothed experiences with two teenage girls who were members of the community, which he claimed were purely spiritual healings....

Among the numerous arguments that the court rejected in affirming Wayne Bent's conviction was an assertion by defendant that his counsel was ineffective by failing to raise a defense under New Mexico’s Religious Freedom Restoration Act.

UPDATE: The court issued a substituted opinion on Aug. 26.

Plaintiff's Objection To Name Badge States Valid Title VII Religious Discrimination Claim

In Ambrose v. Gabay ENT & Associates, P.C., (ED PA, Aug. 15, 2013), a Pennsylvania federal district court allowed a former medical receptionist to proceed with her Title VII religious discrimination and retaliation claims against her former employers who insisted that she wear a name badge that contained a list of workplace rules under the heading "Our Ten Commandments." Plaintiff found it sacrilegious to wear the badge because it contravened the Ten Commandments she follows as a tenet of her Roman Catholic faith. She was willing to post them elsewhere, but not wear them in a way that identified her personally with the statements.

Letter To Doctor Opposing Abortion Clinic Was Not True Threat Under FACE

In United States v. Dillard, (D KS, Aug. 15, 2013), a Kansas federal district court dismissed a civil action brought by the United States against pro-life advocate Angela Dillard under the federal Freedom of Access to Clinic Entrances Act. As related by the opinion:

On January 19, 2011, Angel Dillard wrote a letter to Dr. Mila Means, who had publicly announced plans to open an abortion services clinic in Wichita, Kansas. Most of the letter centers on arguments from Scripture, appeals to conscience, and the practical disadvantages and difficulties associated with such a clinic. But in the body of the letter, Dillard also wrote that “You will be checking under your car everyday—because maybe today is the day someone places an explosive under it.”

The court concluded that the letter did not constitute a true threat.

Qui Tam Action Claims Hawaii Churches Cheated Schools Out of Millions of Dollars of Rent

In Hawaii, a qui tam whistle blower lawsuit against 5 churches, originally filed under seal in March, was unsealed Aug. 14. The complaint (full text with press release) in State of Hawaii ex rel. Kahle and Huber v. New Hope International Ministries, (HI Cir. Ct., filed 3/22/2013), contends that the churches submitted false records and statements to deprive Hawaii schools of $5.6 million in unpaid or underpaid rent and utility charges for weekend use of school buildings, parking lots and facilities over the past 6 years. The churches routinely under reported the length of time they were using facilities and the extent of use. The suit asks for treble damages and civil penalties on behalf of the state. Under HRS 661.27, plaintiffs if successful in the action, are entitled to 15% to 25% of proceeds of the lawsuit. In their press release, the two individuals who filed the lawsuit contend that:

there is long‐standing and widespread abuse in the DOE’s “Community Use of School Facilities Program.” The abuse has cost taxpayers millions of dollars in lost revenue, and million‐dollar losses are continuing every year because of unpaid rental fees and utilities charges by literally hundreds of churches operating out of nearly as many public schools. Relators have called for the entire program to be audited, reformed and for all monies owing to be collected.

As part of their investigation, Relators produced a 2,242‐page report ...[which] contains substantial material evidence of widespread abuse and outright fraud perpetrated by churches, often with the explicit approval or knowledge of school principals and/or their designees. There are literally hundreds of churches operating out of Hawaii’s public schools every weekend, some of whom who have been holding worship services and other church activities at the same schools for 5, 10, 15, even 20 years and longer, without ever attempting to find an alternate location.

Honolulu Civil Beat and Friendly Atheist blog report on the lawsuit. [Thanks to Scott Mange for the lead.]

Saturday, August 17, 2013

Contraceptive Coverage Preliminary Injunction Followed Up by Stay of Proceedings

In Tonn & Blank Construction, LLC v. Sebelius, 2013 U.S. Dist. LEXIS 116173 (ND IN, Aug. 16, 2013), an Indiana federal district court that had previously issued a preliminary injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate against plaintiff construction company until the 7th Circuit decides two cases before it raising the same religious liberty issues, followed up by staying proceedings in plaintiff's case for the same period of time.

Malaysia Strips Foreign Resort Owner Of Residency For Allowing Muslim Prayer Room Use by Buddhists

Malay Mail reports today that in Malaysia, the Home Ministry has summarily stripped a resort owner from Singapore of his permanent residence status in Malaysia for allowing the Muslim prayer room at his resort to be used for meditation by a group of Buddhist tourists. The resort owner was held for four days by police while the incident was being investigated. Civil liberties advocates criticized the move, saying that resort owner should at least have been given a hearing before the action against him was taken.

Company's Disability Insurance Is Not An Exempt "Church Plan"

In Story v. Aetna Life Insurance Co., (ND TX, Aug. 8, 2013), a Texas federal district court held that the disability insurance policy covering employees of Texas Health Resources is not a "church plan" that is exempt from ERISA. The court concluded that the most that had been shown was that Texas Health Resources is a faith-based healthcare organization that takes religious principles into account in providing the health services it renders. It was not shown that its insurance plan was "established and maintained . . .. by a church or by a convention or association of churches" for its employees.

Friday, August 16, 2013

Egyptian Christian Churches and Property Are Attacked

Al Jazeera today carries a feature article titled Egypt's Christians Face Unprecedented Attacks. It reports that amid Wednesday's violence between the military and Muslim Brotherhood supporters, alleged Morsi supporters attacked dozens of Coptic Christian churches and Christian-owned properties. It added:

Mina Thabet, an activist with Christian rights group the Maspero Youth Union, told Al Jazeera on Friday that at least 32 churches had been “completely destroyed, burned or looted” in eight different governorates over the previous two days. The group also recorded dozens of other attacks on Christian-owned shops, businesses and schools around the country.

UPDATE: The U.S. Commission on International Religious Freedom issued a press release on Aug. 16 condemning the violence against protestors and the targeting of churches in Egypt.

Japan, South Korea Distressed At War Shrine Visits By Top Japanese Politicians

Japanese politicians angered China and South Korea yesterday when they marked the 68th anniversary of Japan's World War II surrender by visiting the Yasukuni shrine. China summoned Japan's ambassador to lodge a complaint about the visits. Britain's Morning Star reports that Japanese Prime Minister Shinzo Abe did not visit the shrine personally, but sent an offering through an aide. Two cabinet ministers paid respects in person wearing morning suits. The Shinto shrine honors Japanese war dead, including 14 top convicted war criminals. AFP reports that throughout the day yesterday, nearly 100 Japanese lawmakers-- including 3 cabinet ministers-- visited the controversial shrine. (See prior related posting.)

Permanent Injunction Issued Barring Oklahoma's 2010 Anti-Sharia Constitutional Amendment

In Awad v. Ziriaz, (WD OK, Aug. 15, 2013), an Oklahoma federal district court issued a permanent injunction barring Oklahoma election officials from certifying an anti-Sharia state constitutional amendment approved by 70% of Oklahoma voters in 2010. The court, following the 10th Circuit's approval in 2012 of a preliminary injunction in the case, said: "Because defendants have failed to satisfy strict scrutiny, the Court finds that the proposed amendment’s references to Sharia law violate the Establishment Clause." AP reports on the decision.

Report Urges Allowing Sermons to Endorse Political Candidates

In January 2011, the U.S. Senate Finance Committee's ranking member, Sen. Chuck Grassley, released a staff review of the activities of media-based ministries, focusing on the financial accountability of tax-exempt religious organizations. The Staff Memo also recommended that the IRS sponsor an Advisory Committee made up of representatives of churches and other organizations. In response, the Evangelical Council for Financial Responsibility set up a Commission on Accountability and Policy for Religious Organizations. (See prior posting.) The Commission issued an initial report in December 2012. (See prior posting.) In a press release issued Wednesday, the Commission announced the release of its final report. The report, Government Regulation of Political Speech by Religious and Other 501(c)(3) Organizations concludes that the status quo is untenable and makes a number of recommendations for change. Among the recommendations is the following:

The Commission believes that a communication related to one or more political candidates or campaigns that is made in the ordinary course of a 501(c)(3) organization’s regular and customary religious, charitable, educational, scientific, or other exempt purpose activities should not constitute a prohibited activity under Section 501(c)(3), so long as the organization does not incur more than de minimis incremental costs with respect to the communication.... The exception should expressly include sermons and other communications delivered as part of a religious organization’s regular and customary worship services, provided that no more than de minimis incremental costs are incurred for communications directly related to one or more political candidates or campaigns.

USA Today has additional coverage. [Thanks to Steven H. Sholk for the lead.]

UPDATE: In an Aug. 15 statement, Independent Sector took issue with the Commission's recommendations, saying: "Allowing the endorsement of political candidates, as this report calls for, is tantamount to allowing political agents to use the public’s goodwill towards the charitable sector as a vehicle to advance, through financial contributions, their own partisan political will."

Thursday, August 15, 2013

Federal Court Says Alien Tort Claim For LGBTI Persecution In Uganda Can Proceed

In Sexual Minorities Uganda v. Lively, (D MA, Aug. 14, 2013), a Massachusetts federal district court, in a 79-page opinion, refused to dismiss a suit under the federal Alien Tort Statute (as well as state civil conspiracy and negligence claims) brought by a Ugandan LGBTI advocacy group against an American evangelical anti-gay activist who allegedly "has attempted to foment, and to a substantial degree has succeeding in fomenting, an atmosphere of harsh and frightening repression against LGBTI people in Uganda." The suit against Scott Lively, president of the Abiding Truth Ministries, seeks damages as well as declaratory and injunctive relief. In permitting plaintiff to proceed with the lawsuit, the court said in part:

[M]any authorities implicitly support the principle that widespread, systematic persecution of individuals based on their sexual orientation and gender identity constitutes a crime against humanity that violates international norms..... [A]iding and abetting a crime against humanity is a well established offense under customary international law, and actions for redress of this crime have frequently been recognized by American courts as part of the subclass of lawsuits for which the ATS furnishes jurisdiction....

Second, the restrictions ... on extraterritorial application of the ATS do not apply to the facts as alleged in this case, where Defendant is a citizen of the United States and where his offensive conduct is alleged to have occurred, in substantial part, within this country. Indeed, Defendant ... is alleged to have maintained what amounts to a kind of “Homophobia Central” in Springfield, Massachusetts....

Third, clear authority supports Plaintiff’s standing here. Fourth, the argument that Defendant’s actions have constituted mere expression protected under the First Amendment is, again, premature..... [S]ufficient facts are alleged... to support the claim that Defendant’s behavior crossed well over any protective boundary established by the First Amendment. Fifth, and finally, the arguments attacking the claims under Massachusetts state law have not been convincingly developed.

Center for Constitutional Rights and The Rainbow Times report on the decision.