Court Rejects Free Exercise Challenge To Migratory Bird and Eagle Protection Laws

In United States v. Winddancer, 2006 U.S. Dist. LEXIS 41574 (MD Tenn., June 19, 2006), a Tennessee federal district court rejected claims of Ed Winddancer that his free exercise rights, as protected by the Religious Freedom Restoration Act (RFRA), are infringed by enforcing against him the provisions of the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA). Winddancer, who did not belong to federally recognized tribe, had been indicted for violating restrictions on possessing and bartering eagle and certain other bird feathers. As to the MBTA Winddancer only had standing to mount a “facial” challenge, since he could have applied for a permit and did not. The court held that he had not even alleged that there were not constitutional applications of the MBTA.

As to the BGEPA, the court held that the government has shown that its regulations further the compelling interests of preserving bald and golden eagles, and preserving recognized federal Indian tribes. It also found that the government had used the least restrictive means to do so. To expand access, as Winddancer advocated, to any sincere adherent of a Native American religion, even if the person was not a member of a recognized tribe, would create serious Establishment Clause problems.

Recent Prisoner Free Exercise Cases

Here is a new group of prisoner free exercise cases:

In Shilling v. Crawford, 2006 U.S. Dist. LEXIS 40845 (D. Nev., June 13, 2006), a Nevada federal district court permitted a Washington state prisoner who had been incarcerated for 18 months in Nevada to proceed against some of his named defendants in his claim that his free exercise and equal protection rights were infringed when he was denied kosher food. He alleged that the prison denied kosher food and other Judaic services to prisoners who were not born Jewish, while the prison accommodated religious dietary needs of other religious groups.

In Pinkston-El v. Snyder, 2006 U.S. Dist. LEXIS 41183 (SD Ill., March 28, 2006), an Illinois federal Magistrate Judge recommended that the First Amendment and Equal Protection claims of a prisoner challenging the Illinois Department of Corrections grooming policy be dismissed. Plaintiff, a member of the Moorish Science Temple wished to wear his hair in dreadlocks. Prison officials pointed to the problem that this posed in searching for possible contraband.

In Shawn K. Odneal TDCJ-CID #917382 v. Dretke, 2006 U.S. Dist. LEXIS 41536 (SD Tex., June 21, 2006), a Texas federal Magistrate Judge dismissed Free Exercise, RLUIPA and Equal Protection claims of a prisoner who claimed he was denied the opportunity to attend Native American religious ceremonies regularly because prison authorities failed to have enough chaplains and also refused, alternatively, to let him conduct the ceremonies himself with prison personnel present.

In Simon v. Miami County Incarceration Facility, 2006 U.S. Dist. LEXIS 41889 (SD Ohio, March 8, 2006), an Ohio federal Magistrate Judge held that a prisoner’s claims that equal religious services were not provided to various faiths should be dismissed for lack of evidence.

California City Heading Off 2006 "Christmas Wars"

Thursday's San Diego Union Tribune reports that attempts to head off "Christmas wars" in 2006 are already underway. In Chula Vista, California last week, City Council approved a new policy for the city's Holiday Festival: "The City recognizes that many of the traditions of the holiday season have religious underpinnings, and although the Holiday Festival is secular, no person or group will be denied the opportunity to participate in the Festival based on the religious message conveyed by their performance." Sign-ups will be open first to instructors who teach city Recreation Department classes, local schools and student groups.

Last year, with no policy in place, a city employee had barred The Jesus Christ Dancers-- a group of 8-to 12-year-old girls who perform to Christian-themed music-- from performing at the Festival. The American Family Association had sued the city over the incident in a case that is still pending in federal court. The new policy does not apply to activities outside of the Recreation Department-sponsored Festival, such as the mayor's Christmas tree lighting ceremony and the Downtown Business Association's Yule parade.

Valedictorian Will Sue Nevada School Officials

On Thursday, the Rutherford Institute announced that it has agreed to represent Brittany McComb, the Las Vegas, Nevada high school valedictorian whose microphone was unplugged by school officials when she began to speak about her Christian beliefs during her graduation speech. (See prior posting.) Attorneys plan to file suit in federal court claiming that McComb's free speech rights were violated and that she was denied equal protection of the laws.

Meanwhile, another incident reported in the Colorado Springs, Colorado Gazette earlier this month suggests that students are beginning to plan to mislead school officials about what they will say at graduation. High schooler Erica Corder departed from the draft of her graduation speech that she had submitted to the principal in order to sound a religious theme that she feared would otherwise have been banned. At the Colorado Springs High School ceremony, 15 students co-wrote a speech and each delivered 30-seconds of it. Erica Corder's surprise 30 seconds included the following: "We are all capable of standing firm and expressing our own beliefs, which is why I need to tell you about someone who loves you more than you could ever imagine. He died for you on a cross over 2,000 years ago, yet was resurrected and is living today in Heaven. His name is Jesus Christ. If you don't already know Him personally, I encourage you to find out more about the sacrifice He made for you, so that you now have the opportunity to live in eternity with Him." The school's principal has told Corder to send an e-mail to parents to explain herself and acknowledge the school was not involved.

Christian-Themed Film Gets "PG" Rating; Controversy Erupts

Jews On First this week has posted an interesting group of articles about the action of the Motion Picture Association of America in giving a "PG" rating to a new movie, Facing the Giants, which the MPAA says has some thematic elements that parents might want to know about in deciding whether their children should see the film. The film has a strong Christian theme, and initial reports said that the MPAA was focusing on Christian proselytization in the film. (Scripps-Howard, June 6.) A June 8 Action Alert sent out by the American Family Association said:

The Motion Picture Association of America (MPAA) is now warning parents of movies which contain a reference to the Christian faith, equating Christianity as being on the same level of sex, violence and profanity when it comes to objectionable material.

The MPAA is controlled by Hollywood moguls known for their bitter opposition to Christianity.

A new family film featuring miracles and a pro-God theme has earned the PG rating because it would offend non-believers. The MPAA refuses to give movies which promote the homosexual lifestyle a similar warning. In other words, MPAA warns parents if a movie has Christianity presented in a positive manner but refuses to warn them if homosexuality is presented in a positive manner.

Facing the Giants is the story of a Christian high school football coach who uses his undying faith to battle the giants of fear and failure. Due to the Christian content, the MPAA rated it PG, placing it in the same offensive category as sex, violence and profanity.

However, yesterday CTV.ca reported that after receiving 15,000 e-mails, MPAA said that the main reason for the PG rating was mature themes in the film, and its religious message is not the primary issue.

New York Challenges "Christian Skate Time" As Discriminatory

The Traditional Values Coalition this week sent a letter to New York Governor George Pataki complaining that the state's Division of Human Rights has warned an Accord, New York skating rink that its "Christian Music Skate Time" may violate the state's human rights law. (TVC press release.) NY Human Rights Law, Sec. 296(2 ) prohibits, among other things, religious discrimination by businesses. The agency wrote to the Skate Time 209 rink, and to the Ulster County Press in which the rink's Christian Skate Time was advertised, saying that the event during which contemporary Christian music is played for skaters "apparently denies or at a minimum, discourages non-Christian patronage" and "constitutes prima facie violation" of the Human Rights Law. TVC's letter defends the Christian Music Skate Time, saying that there are no special discounts for Christian skaters and no one is denied access to the rink if they are not Christian.

North Korea Criticizes US For Restricting Religious Freedom

The Associated Press reported yesterday that North Korea has turned the tables and accused the United States of religious repression because it did not permit the North Korean delegation into the U.S. to attend this week's General Assembly of the Presbyterian Church (USA) in Birmingham, Alabama. In the past, the U.S. State Department has charged North Korea with serious violations of religious liberty.

Florida Officially Adopts "In God We Trust" As Motto

In Florida yesterday, Gov. Jeb Bush signed into law a bill (H. 1145) formally making "In God We Trust" the official state motto. A House Staff Analysis had concluded that there likely were no serious Establishment Clause problems with adopting the motto. The Tallahassee Democrat reports that most people thought that this was already Florida's motto until two fourth-graders discovered that it was not formally in the state's statutes. Bush signed the law at a ceremony during this year's American Legion sponsored Boys State convention.

Japan's Supreme Court Rejects Challenge To Prime Minister's Shrine Visits

Today's Washington Post reports that Japan's Supreme Court has rejected a constitutional challenge to controversial visits by Prime Minister Junichiro Koizumi to Japan's Yasukuni Shrine which honors Japan's 2.5 million war dead, including criminals executed for war crimes after World War II. China and South Korea consider the shrine to be a glorification of Japan's past militarist policies. The court challenge, however, argued that the Prime Minister's visits to the shrine, which is also a Shinto Temple, were violations of the principle of separation of church and state. Koizumi argues that his visits were made in a private capacity to pray for peace. (See prior related postings: 1, 2, 3, 4. )

UPDATE: The Japan Times reported on June 24 that court dismissed the case on the ground that Koizumi's visits to the shrine in no way interfered with the plaintiffs' religious faith. The court avoided deciding whether Koizumi's visits were official or private.

Supreme Court Takes Expansive View Of Anti-Retaliation Provisions Of Title VII

In an decision yesterday, eight U.S. Supreme Court justices took an expansive view of what constitutes prohibited retaliation against workers who file discrimination complaints or assist in Title VII investigations or hearings. While the case involved discrimination on the basis of gender, it applies equally to religious discrimination. In Burlington Northern & Santa Fe Railway Co. v. White, (June 23, 2006), the court concluded that the anti-retaliation provisions of Title VII of the 1964 Civil rights Act (42 USC Sec. 2000e-3(a)), does not prohibit only retaliatory actions that relate to employment or occur at the workplace. They cover any action by an employer "that would have been materially adverse to a reasonable employee or job applicant.... [T]hat means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination."

The Court said that "petty slights, minor annoyances and simple lack of good manners" do not amount to retaliation: "A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination."

Justice Alito concurred in the result of the case, but took a narrower view of the standard for retaliation than the other justices articulated. Today's New York Times reports on the decision.

House Hearings On "Public Expression Of Religion Act"

Yesterday, the House Judiciary Committee's Subcommittee on the Constitution held hearings on H.R. 2679, the Public Expression of Religion Act. The bill provides that in suits claiming that state and local officials have violated the Establishment Clause claims, courts may only grant injunctions and not award either damages or attorneys fees. Here is the full text of the testimony of the four witnesses who appeared before the panel. Wall of Separation blog summarizes the testimony of the 3 witnesses favoring the bill and the one against, and links to a letter from Americans United opposing the bill. The witnesses favoring the bill argued that federal law on separation of church and state is so confusing that lawsuits seeking to uphold the principle should be discouraged. Rep. John Hostettler of Indiana who introduced the bill argued that the ACLU was using the threat of recovering attorneys' fees to intimidate public schools and other government entities.

Supreme Court, In Religion Case, Interprets Prisoner Litigation Requirements Strictly

The U.S. Supreme Court yesterday, in a 6-3 decision, interpreted the federal Prison Litigation Reform Act to made it harder for prisoners to get into court to challenge their treatment while incarcerated. The case, Woodford v. Ngo (June 22, 2006), involved a complaint by Viet Mike Ngo, who was placed in administrative segregation for "inappropriate activity" in the prison chapel, and later was prohibited from participating in various religious activities, such as confession, Holy Week services and Bible study. Yesterday's Washington Post reported on the decision.

42 USC 1997e(a) requires a prisoner to exhaust "such administrative remedies as are available" before bringing suit in federal court. The majority, in an opinion written by Justice Alito, held that this means that a prisoner who has missed a deadline for filing an administrative remedy is precluded from suing in federal court. Otherwise, they said, a prisoner could ignore the prison's internal grievance system. Chief Justice Roberts and Justices Scalia, Kennedy and Thomas joined the opinion. Justice Breyer wrote a concurring opinion generally agreeing, but saying that the exhaustion principle has some exceptions.

The dissent, written by Justice Stevens, and joined by Justices Souter and Ginsburg, said that all Congress meant was that the prisoner's grievance had to be turned down administratively before he sues. An administrative denial of a prisoner's claim because he failed to comply with some procedural deadline meets the exhaustion requirement and should allow the prisoner to proceed to federal court to vindicate his constitutional rights. The dissenters said that prisoners have little incentive to purposely evade using the prison's internal grievance system before filing suit.

New Jersey Court Refuses To Enforce Islamic Marriage Contract Provision

Newsday reported yesterday that an Essex County, New Jersey trial court has refused to enforce a previous agreement between a divorcing husband and wife that if the marriage broke up, the wife would get $50,000 as the mahr-- a payment to the wife that is part of the traditional marriage contract under Islamic law. American Muslims are increasingly asking civil courts to intervene in religious disputes such as this. In a similar case in 2002, a court in Passaic County upheld a $10,000 mahr as a legally enforceable contract between the husband and wife.

UPDATE: The case is Attia v. Amin (20-4-4287, Chancery Div., Essex County). Apparently the court's refusal to enforce the agreement stemmed from its conclusion that the amount of the payment was unfair and inequitable. Also important to the court was its finding that the agreement had been signed by the husband under duress, out of fear that if he did not do so the marriage would not take place and he would be deported. [From Daily Decision Alert forwarded by Steven Sholk, from Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.]

Indian Court Reverses Ban On Da Vinci Code

The Hindu reports that in India yesterday, the Andhra Pradesh High Court quashed the state government's order prohibiting the screening of The Da Vinci Code. The court said, "Freedom of speech and expression contributes to the richness and equilibrium of human existence." It also said that the Home Department officials who banned the film had not even seen it. Instead, the official "mechanically certified" the veto of a few objectors. The court ordered the government to pay damages of Rs. 10,000 each of the two film distributors who brought suit, and Rs. 2,500 to an individual plaintiff in the case.

10th Circuit Issues Slightly Revised Opinion In Land Use Case

On Tuesday, the U.S. 10th Circuit Court of Appeals vacated its former opinion in Grace United Methodist Church v. City of Cheyenne, (10th Cir., June 20, 2006), and issued a revised opinion with minor changes in it, again rejecting a church's appeal of a ruling that prevented it from constructing a day care center on property it owned. The Court of Appeals also upheld the district court's decision that Mountainview Homeowner's Association had standing to intervene in the case.

Court Upholds Secret Service Seizure Of Gospel Tracts That Look Like Currency

Religion News Service reports that on Tuesday a federal district court in Dallas, Texas denied a preliminary injunction to the Great News Network in its dispute with the U.S. Secret Service. The evangelical ministry based in Denton, Texas has been handing out gospel tracts that resemble $1 million bills. The tracts, that are the same size as a dollar bill, feature feature "1,000,000," a picture of President Grover Cleveland and, in small type, the words "This is Not Legal Tender" and "Department of Eternal Affairs." On the back, around the edge, the tract says: "The million-dollar question: Will you go to heaven?" The United States does not issue a $1 million bill.

Secret Service agents seized the tracts earlier this month after a North Carolina resident tried to deposit one in his personal bank account. (GNN release.) Great News Network argued to the court that the seizure violated its freedom of speech, press and religion. Brian Fahling, senior trial attorney with the American Family Association Center for Law & Policy, said that millions of the tracts have been distributed by Great News Network and others who have ordered them from Living Waters Publications, based in Bellflower, Calif.

Mt. Soledad Appeal Rejected By 9th Circuit

The San Diego UnionTribune reports that yesterday the U.S. 9th Circuit Court of Appeals turned down San Diego's appeal of a district order to remove the Mt. Soledad Cross or face a fine of $5000 per day. (See prior posting.) San Diego Mayor Jerry Sanders said that the city would comply with the order district court order if no other way of preserving the cross can be worked out.

UPDATE: Apparently the 9th Circuit's action was a refusal to grant a stay of the district court's order during the appeal of the case. At the same time, the 9th Circuit scheduled oral argument in the case for the week of October 16, 2006, long after the district court's deadline for removing the cross. (Release by Thomas More Law Center.)

UPDATE 2: The city of San Diego announced on Thursday that it will ask the U.S. Supreme Court to review the 9th Circuit's decision. (AP report.)

Appellate Arguments In Satmar Dispute Heard

On Tuesday, a New York state appellate court in Brooklyn heard arguments in litigation that will determine which of the sons of the recently deceased Satmar Rebbe, Moses Teitelbaum, will control the group's $500 million of property. Yesterday's New York Sun says that the issue before the court was whether Rabbi Moses Teitelbaum had the power in 2001 to expel the president of the Satmar congregation from the community, and whether a civil court can decide this question. A decision will help determine whether Rabbi Zalman or Rabbi Aaron will have control over assets ranging from cemetery plots to one of the world's largest synagogues which is under construction. (See prior posting.)

Religious Objections To Union Membership Interpreted By Washington AG

Washington state Attorney General Rob McKenna has issued an Opinion (AGO 2006 No. 14) interpreting RCW 41.80.100. The statute provides that state employees with a religious objection to union membership need not join the union representing an agency's employees. Instead, the objecting employee can make payments to the union for purposes that would be in harmony with his or her individual conscience. The AG's Opinion ruled that a state employee may assert a strongly held private religious objection to union membership, even if the objection is not based on the teachings of an established church or religious body. However, the worker's objection to union membership must be a religious one, and not merely a philosophical, sociological, ethical, or moral objection. Yesterday's Olympian reports on the issuance of the AG's Opinion.

Molestation Conviction Reversed For Excessive Focus On Victim's Religious Beliefs

In State of West Virginia v. Bolen, (W.Va. Sup. Ct., June 16, 2006) (majority opinion; dissent), the Supreme Court of Appeals of West Virginia ordered a new trial in the case of Matthew Bolen who had been sentenced to prison for first degree sexual assault. The state charged that when Bolen was 16, he repeatedly engaged in oral sex with a 7 year old neighbor boy.

Throughout the trial, the prosecution made extensive remarks about the victim's spiritual commitment, faithful church attendance and missionary activities. In his closing statement to the jury, the prosecutor suggested that a person as religious as the victim would not lie and risk burning in Hell for doing so. The Supreme Court found the trial judge committed plain error and the prosecutor acted improperly in ignoring West Virginia Rule of Evidence 610 which provides: "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced."

Justice Maynard dissenting said that Bolen's counsel never objected at trial to the state's references toBolen'ss religion. Today's Charleston (W. Va.) Daily Mail reports on the decision.