British Judge Says Muslim Woman Must Remove Full-Face Veil For Her Testimony, But With Accommodations

In a widely followed case in Britain, a trial court judge who allowed a Muslim woman charged with witness intimidation to keep her face fully covered by her niqab at her arraignment (see prior posting) has now ruled that she must uncover her face when giving evidence during her trial.  The Guardian reported yesterday that under a compromise arrangement, the woman will be able to testify behind a screen or by live video link where only the judge, counsel and jurors can see her face, but court spectators will not. This will allow jurors to assess her demeanor.  The court also ordered that there be no artist's sketch of the woman with her face uncovered, and ruled that the woman, who will be identified only by her initial, can keep her face covered during the rest of the trial.

Complex Settlement Reached In Maryland Church Zoning Dispute

The Gaithersburg (MD) Gazette reports that a complicated settlement has been reached in Bethel World Outreach Ministries of Montgomery County v. Montgomery County Council. The suit, currently on remand from the 4th Circuit (see prior posting), involves a zoning denial that barred a congregation from building an 800-seat church in an area zoned as an agricultural preserve.  Under the settlement, the county will pay the church $1.25 million which it will use in part to purchase an agricultural easement for the property it sought to rezone.  It will still be allowed to subdivide the land into 4 residential lots. Then it will develop property that it has located elsewhere in the county to build a 1,200-seat church.  The county will make water and sewer changes to accommodate this, and the church will consider shuttle service for overflow parking as well as the purchase of additional land for use as a school and for services.

Court Upholds Zoning Conditions Imposed On Residential Synagogue

In a decision handed down last month, a New Jersey state trial court upheld 14 challenged conditions imposed by the Teaneck Board of Adjustment on use of a house as a residential Orthodox synagogue in an area zoned for single family dwellings.  For example, the Board required that there be no outdoor celebratory activity.  In 554 Queen Anne Road, Inc. v. Teaneck Board of Adjustment, (NJ Super. Ct., Aug. 23, 2013), the court held:

Each of the conditions ... bears a rational and reasonable relationship to the foreseen consequences of granting the requested variances.

(See prior related posting.) [Thanks to Thomas Rockland for the lead.]

Islamic Center Sues Illinois City Over Zoning Change Denial

A federal court lawsuit was filed yesterday by an Islamic Center against Des Plaines, Illinois, alleging that the city and members of its city council violated the 1st and 14th Amendments and RLUIPA when they denied zoning changes so land and buildings the Center wanted to acquire could be used for religious worship and education.  The complaint (full text) in American Islamic Center v. City of Des Plaines, (D IL, filed 9/16/2013), alleges that the Islamic Center, most of whose 160 members are Bosnian Muslim refugees, obtained Plan Commission approval for its proposal for use of the now-vacant property, but that city council denied the changes by a vote of 5-3. The Daily Herald reports on the lawsuit.

TSA Says Passengers May Carry Sukkot Items Through Security Checkpoints

The Jewish holiday of Sukkot begins Wednesday night.  Last week, the Transportation Security Administration issued an advisory (full text) stating:

TSA’s screening procedures do not prohibit the carrying of the four plants used during Sukkot - a palm branch, myrtle twigs, willow twigs, and a citron - in airports, through or security checkpoints, or on airplanes. These plants or agricultural items are not on TSA’s Prohibited Items List. However, all persons and property will undergo security screening at the checkpoint.

Recent Articles of Interest

From SSRN:

• Zoe Robinson, What is a 'Religious Institution'?, (Boston College Law Review, Vol. 55, 2014, Forthcoming).
• Ethan Zadoff, Zadoff on Kwall: A Historians Critique, (Cardozo Law Review, Forthcoming).
• Jennifer Anglim Kreder, Lessons for Religious Liberty Litigation from Kentucky, (19 Wash. & Lee J. of Civ. Rts. & Soc. Justice, 2013).
• Shiva Falsafi, Religion, Women, and the Holy Grail of Legal Pluralism, (Cardozo Law Review, Forthcoming).
• Peter O'Brien, Islam and the Politics of Secularism in Europe, (APSA 2013 Annual Meeting Paper).
• Jeremy M. Christiansen, 'The Word Person...Includes Corporations': Why the Religious Freedom Restoration Act Protects Both For- and Nonprofit Corporations, (Utah Law Review, Forthcoming).

From elsewhere:

• Patrick E. Tolan, Jr., Compromising the Safety Net: How Limiting Tax Deductions for High-Income Donors Could Undermine Charitable Organizations, 46 Suffolk U.L. Rev. 329 (2013).

Recent Prisoner Free Exercise Cases

In Washington v. Gonyea, (2d Cir., Sep. 10, 2013), the 2nd Circuit held that RLUIPA does not provide a cause of action for damages against state officials in their individual capacities because the legislation was enacted pursuant to Congress’ spending power that allows the imposition of conditions, such as individual liability, only on those actually receiving the state funds. In a second summary opinion in the case issued the same day, the court affirmed the denial of plaintiff's due process claim and reversed dismissal of his First Amendment claim of retaliation for giving a copy of a Qur'an to a prison employee.

In Lofton v. St. Clair County Jail, 2013 U.S. Dist. LEXIS 127975 (SD IL, Sept. 9, 2013), an Illinois federal district court dismissed, with leave to file an amended complaint, an inmate's allegation that his ree exercise rights were infringed when he was allowed to attend only one religious service during his two-month confinement in jail.

In Carr v. Noble, 2013 U.S. Dist. LEXIS 128163 (SD OH, Sept. 9, 2013), an Ohio federal magistrate judge permitted an inmate to proceed with his claims against certain defendants alleging denial of his requests that the Christian Separatist religion be recognized and that Christian Separatist literature be made available to inmates in the chapel library, and complaining that Christian Separatist CDs were withheld and he was not permitted to donate them to the chapel library.

In Wilson v. Wetzel, 2013 U.S. Dist. LEXIS 128423 (MD PA, Sept. 9, 2013), a Pennsylvania federal district court allowed a Hebrew Israelite inmate to proceed against two correctional officers with his complaint that the disciplinary food loaf sanction imposed on him should have been suspended for the holy fast day of Gedaliah and he should have been  provided with a Kosher food bag for that day.

In Bogard v. Perkins, 2013 U.S. Dist. LEXIS 128892 (ND MI, Sept. 9, 2013), a Mississippi federal district court held that an inmate claiming to be a member of the Nazarite religious faith has no right under the 1st Amendment or RLUIPA to wear his hear in dreadlocks in violation of the Department of Corrections grooming policy.

In Diggs v. Volpe, 2013 U.S. Dist. LEXIS 111365 (SD NY, Aug. 7, 2013), a New York federal district court dismissed a suit by a Muslim inmate who complained that he could not attend Friday Jumu'ah services while he was in disciplinary confinement.

In Cox v. Stephens, 2013 U.S. Dist. LEXIS 129513 (SD TX, Sept. 11, 2013), a Texas federal district court modified a magistrate's recommendations (2013 U.S. Dist. LEXIS 129806, July 15, 2013) and permitted a Native American inmate to proceed on various claims against a prison official who violated departmental policy by denying adequate personnel to preside over religious pipe ceremonies, and to proceed with challenges to prison grooming policies and rules regarding possession of his medicine bag.

In Coleman v. Ryan, 2013 U.S. Dist. LEXIS 129774 (D AZ, Sept. 11, 2013), an Arizona federal district court permitted an inmate to proceed with his complaint that corrections officers wrongfully confiscated his rosary.

In Frost v. South Carolina Department of Corrections, 2013 U.S. Dist. LEXIS 130278 (D SC, Sept. 12, 2013), a South Carolina federal district court adopted a magistrate's recommendations (2103 U.S. Dist. LEXIS 130487, Aug. 9, 2013) and dismissed a Muslim inmate's complaints regarding the number of Shia imams, confiscation of a Qur'an, prohibition of Muslim inmates using empty cells for daily prayers and requiring inmates to arrive at a certain time to attend the Jumu'ah service.

In Brooks v. State of Hawaii, 2013 U.S. Dist LEXIS 130635 (D AZ, Sept. 8, 2013), an Arizona federal district court dismissed without prejudice a free exercise claim by an inmate who studied both Christianity and Islam, and who was removed from a voluntary Christian-based housing unit.   However he was allowed to proceed with a retaliation claim.

In Mauwee v. Nevada Department of Corrections, 2013 U.S. Dist. LEXIS 131250 (D NV, Sept. 13, 2013), a Nevada federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 131378, June 26, 2013) and dismissed a complaint by a Native American inmate that the Department of Corrections had ended a prior policy permitting access to raw foods for preparation of a ceremonial meal during the sweat lodge ceremony.

Court Denies Preliminary Injunction In Contraceptive Coverage Mandate Case

In M.K. Chambers Co. v. Department of Health and Human Services, (ED MI, Sept. 13, 2013), a Michigan federal district court refused to grant a preliminary injunction to prevent enforcement of the Affordable Care Act contraceptive coverage mandate against a a closely-held machinery components company and its two Catholic owners.  The court held that plaintiffs are unlikely to succeed on the merits of their 1st Amendment, RFRA and Administrative Procedure Act arguments, saying in part:

The Court takes as true, Plaintiffs’ deeply held religious beliefs. However, courts have held that the Mandate in question applies only to the corporate entity, not to its officers or owners, and that as to the individual owners, any burden imposed on them individually by the contraception mandate is remote and too attenuated to be considered substantial for purposes of the RFRA.

The court previously denied a temporary restraining order in the case. (See prior posting.)

Pentecostal Employee Loses Retaliation Claim As 5th Circuit Applies Recent Supreme Court Precedent

As previously reported, in a decision last January a Mississippi federal district court held that Title VII of the 1964 Civil Rights Act did not require a Mississippi county to allow a female juvenile detention officer who had converted to the Pentecostal faith to wear a skirt rather than pants at work.  However the court allowed plaintiff to proceed with her claim that her dismissal was in retaliation for her filing an EEOC complaint.  Now, on appeal, the 5th Circuit in Finnie v. Lee County, Mississippi, (5th Cir., Sept. 12, 2013), dismissed the retaliation claim.  The 5th Circuit applied the U.S. Supreme Court's decision from last year in University of Texas Southwestern Medical Center v. Nassar holding that in Title VII retaliation claims, plaintiff must show but-for causation, not merely a mixed motive. (See prior posting.) The 5th Circuit held that plaintiff failed to show that she would not have been terminated for violating the uniform requirement, if she had not filed an EEOC complaint.

Court Orders Pennsylvania County Clerk To Stop Issuing Same-Sex Marriage Licenses

In Commonwealth of Pennsylvania, Department of Health v. Hanes, (Comnw. Ct., Sept. 12, 2013) a Pennsylvania Commonwealth Court judge granted a writ of mandamus ordering Montgomery County court clerk D. Bruce Hanes to comply with all the provisions of Pennsylvania's Marriage Law.  The order stops Hanes from issuing marriage licenses to and accepting marriage certificates from same-sex couples. Hanes began to issue licenses to same-sex couples in July after the U.S. Supreme Court's Windsor decision. (See prior posting.) In ordering Hanes to comply with the state's ban on same-sex marriage, the court said:

Because only the General Assembly may suspend its own statutes and because only courts have the authority to determine the constitutionality of a statute, and because all statutes are presumptively constitutional, a public official “[i]s without power or authority, even though he is of the opinion that a statute is unconstitutional, to implement his opinion in such a manner as to effectively abrogate or suspend such statute which is presumptively constitutional until declared otherwise by the Judiciary.”... Based on the foregoing, it is clear that Hanes does not have standing to assert the purported unconstitutionality of the Marriage Law as a defense to the instant Petition.

The Pittsburgh Post-Gazette reports on the decision.

British Judge Allows Niquab At Arraignment Under Compromise Arrangement

The Guardian reports that in Britain yesterday, a London trial court judge allowed a Muslim woman to plead not guilty in a witness intimidation case while wearing a niqab that covered her face. The judge backed off of his August order requiring her to uncover her face in court, instead accepting a compromise under which a female police officer who saw the defendant's face when her custody photograph was taken now viewed her in a private room with her veil removed. The officer then testified under oath that the correct person was in court. The judge also heard arguments on whether the woman should also be allowed to wear the niqab during her full jury trial.

8th Circuit: Pride Festival's Limits On Bible Distributions Outside Festival Booths Are Invalid

In Johnson v. Minneapolis Park and Recreation Board, (8th Cir., Sept. 11, 2013), the U.S. 8th circuit Court of Appeals, in a 2-1 decision, held that the district court should have granted a preliminary injunction to allow an Evangelical Christian to distribute Bibles at the Twin Cities Pride Festival in a downtown Minneapolis park.  The majority concluded that a regulation which limits distribution of literature to those with booths at the Festival or elsewhere in the park (or else through a materials drop area) was not narrowly tailored to further a significant governmental interest in safety or in preventing congestion, particularly since Festival sponsors were allowed to solicit contributions outside booths and near entrances to the Festival. Judge Bye dissented, arguing that "the Board's regulation was a content-neutral time, place, and manner restriction and was narrowly tailored to serve a significant government interest which also provided ample alternative channels of communication." [Thanks to Blog From the Capital for the lead.]

Anti-Muslim Pastor Arrested On Way To Planned 9-11 Qur'an Burning

Law enforcement officials in Mulberry, Florida yesterday arrested controversial Florida pastor Terry Jones and his associate Pastor Marvin Sapp as they were driving to a park to burn 2,998 Qur'ans-- one for each victim of the 9-11 terrorist attacks. AP reports that the two men were carrying the Muslim holy books, soaked in kerosene, in a barbecue-style grill in a pickup truck. They were each charged with unlawful conveyance of fuel. In addition Sapp was charged with having no valid registration for his trailer, while Jones was charged with unlawful open carry of a firearm. (See prior related posting.)

Catholic and Evangelical Law Professors Publish Joint Statement On Theological Foundations of Civil Law

A group of 15 Evangelical and 14 Catholic law professors have just published a paper that has been 8 years in the making titled Evangelicals and Catholics Together On the Law: The Lord of Heaven and Earth. (Full text in Summer 2013 Journal of Christian Legal Thought). Heavy on theology, the 9-page joint statement begins with this explanation of purpose:

... we wish to speak from and to our respective communities about law, politics, and government. We speak from the conviction that law's place and role in society are shaped by enduring truths - truths that transcend the differences among cultures and traditions - about God, about the world, about the human person, and about what the entire human family is called by its divine creator and redeemer to be.

[Thanks to Rick Garnett for the lead.]

Suit Challenges Elementary School Graduation In Chapel With Christian Prayers

The American Humanist Association announced yesterday that it has filed a federal lawsuit against the Greenville County, South Carolina school district challenging on Establishment Clause grounds its practice of holding graduation for a Taylors, South Carolina elementary school in the chapel of North Greenville University. The University  describes itself as offering "a quality education in a biblically sound, Christ-centered environment." The complaint (full text) in American Humanist Association v. Greenville County School District, (D SC, filed 9/11/2013), claims that the graduation ceremony in the chapel also included two student-led Christian prayers that had been reviewed and approved by school staff.

Questionable Voter Campaign Aimed At New York City's Orthodox Jewish Williamsburg Residents

The Gothamist on Tuesday reported on a questionable get-out-the-vote campaign in New York City's Orthodox Jewish enclave of Williamsburg that includes a promise to enter those who vote into a raffle for $250 cash prizes and gift certificates.  Not far from polling locations, workers staff a table featuring signs mostly in Yiddish backing a favored slate of candidates. Apparently families of area yeshiva students were mailed cards entitling them to be entered in the raffle if they return the cards to these workers after they vote. Cards were also available from a van near polling stations. NY Election Law § 17-142 prohibits offering money or other valuable consideration to anyone to induce them to vote or refrain from voting. The nonprofit United Jewish Organizations denies claims that it was behind the voter campaign. [Thanks to Steven H. Sholk for the lead.]

Mormon Church Creates New Online Resources To Promote Religious Freedom

Earlier this week, the Church of Jesus Christ of Latter Day Saints announced that it has launched new online resources to help individuals understand the importance of freedom of religion. A Topic Page contains essays and videos on basic concepts, as well as links to additional resources.  A "Support Religious Freedom" Facebook page has also been created.

Relying On Hobby Lobby Case, Court Enjoins ACA Mandate's Application To 4 Contraceptive Methods

In Briscoe v. Sebelius, (D CO, Sept. 6, 2013), a Colorado federal district court granted a preliminary injunction to a for-profit corporation, two related for-profit LLCs and their evangelical Christian owner who have religious objections to contraceptive methods they believe operate as abortifacients.  The companies manage and operate senior care assisted living centers and skilled nursing facilities, and offer a self-insurance plan to their over 200 employees.  The court's preliminary injunction bars enforcing the Affordable Care Act's preventative care mandate against plaintiffs with respect to four FDA approved contraceptive methods: (1)Ella; (2) Plan B, Plan B One-Step, and Next Choice (Levonorgestrel); (3) the Copper IUD; and, (4) the IUD with Progestin. Last February, the court refused to grant a temporary restraining order in the case. (See prior posting.)  However, subsequently the 10th Circuit, en banc, decided the Hobby Lobby case, holding that corporations have free exercise rights, and that the contraceptive coverage mandate substantially burdened those rights without a compelling governmental interest. (See prior posting.) Relying on this holding, the district court here granted the relief sought. Live Action News reports on the decision.

On Anniversary of 9-11, Considering Bush 43's View of Radical Islam

Today is the 12th anniversary of the 9-11 attacks.  The events of Sept. 11, 2001 have caused some to question whether our traditional church-state and free exercise doctrines are adequate to deal with violence carried out in the name of radical Islam.  In considering that important issue, it is useful to look back at portions of the speech (full text) President George W. Bush delivered to the nation and a joint session of Congress nine days after the attacks.  Here are his conclusions:

The terrorists practice a fringe form of Islamic extremism that has been rejected by Muslim scholars and the vast majority of Muslim clerics -- a fringe movement that perverts the peaceful teachings of Islam. The terrorists' directive commands them to kill Christians and Jews, to kill all Americans, and make no distinction among military and civilians, including women and children....

I also want to speak tonight directly to Muslims throughout the world. We respect your faith. It's practiced freely by many millions of Americans, and by millions more in countries that America counts as friends. Its teachings are good and peaceful, and those who commit evil in the name of Allah blaspheme the name of Allah. (Applause.) The terrorists are traitors to their own faith, trying, in effect, to hijack Islam itself. The enemy of America is not our many Muslim friends; it is not our many Arab friends. Our enemy is a radical network of terrorists, and every government that supports them. (Applause.)...

The course of this conflict is not known, yet its outcome is certain. Freedom and fear, justice and cruelty, have always been at war, and we know that God is not neutral between them. (Applause.)

Court Rejects Challenge To "In God We Trust" On Currency

In Newdow v. United States, (SD NY, Sept. 9, 2013), a New York federal district court rejected Establishment Clause and free exercise challenges by atheists and secular humanists to the government's placing of the words "In God We Trust" on U.S. currency. The court held that "the inclusion of the motto on U.S. currency satisfies the purpose and effect tests enunciated in Lemon, and does not violate the Establishment Clause." In rejecting challenges under the free exercise clause and RFRA, the court concluded:

While Plaintiffs may be inconvenienced or offended by the appearance of the motto on currency, these burdens are a far cry from the coercion, penalty, or denial of benefits required under the "substantial burden" standard.

(See prior related posting.)