Religion Clause

Tuesday, January 28, 2014

U.S. Appeals To 7th Circuit On Tax Code's Parsonage Allowance

According to ABP, the Justice Department last week filed a notice of appeal with the U.S. 7th Circuit Court of Appeals in Freedom From Religion Foundation v. Lew. In the case, a federal district court held unconstitutional the provision in the Internal Revenue Code that for tax purposes excludes from income a minister's parsonage allowance. (See prior posting.) [Thanks to Steven H. Sholk for the lead.]

Tunisia Finalizes Adoption Of New Constitution

Tunisia Live reports that on Sunday night, Tunisia's National Constituent Assembly (NCA) give its final approval to the country's new constitution which has been drafted in a process that has taken nearly two years. The vote was 200 in favor; 4 against; and 12 abstentions. By receiving over a two-thirds vote, the document does not need to go to a popular referendum. Yesterday, the formal adoption was finalized as President Moncef Marzouki, Prime Minister Ali Laarayedh, and NCA Speaker Mustapha Ben Jaafar signed the document in a ceremony attended by political and civil society leaders as well as representatives of foreign governments. (Tunisia Live). The new constitution (full text in English) contains 146 articles, including the following that relate to the relationship of religion and state:

Preamble.... Expressing our people’s commitment to the principles of Islam and its open and moderate objectives, on sublime human values and the principles of universal human rights, inspired by our civilizational heritage accumulated over successive epochs of our history, and from our enlightened reformist movements that are based on the foundations of our Islamic-Arab identity and to the acquisitions of human civilisation, and adhering to the national gains achieved by our people; ...

Based on the dignified status of humankind; enhancing our cultural and civilizational affiliation to the Arab Islamic nation, on the basis of national unity that is based on citizenship, brotherhood, solidarity, and social justice; with a view to supporting Maghreb unity as a step towards achieving Arab unity, integrating with the Muslim and African nations, and cooperating with the peoples of the world; supporting the oppressed everywhere, and the people’s right to self-determination, and supporting just liberation movements at the forefront of which is the Palestinian liberation movement; and standing against all forms of occupation and racism; .... [Note: Article 143 provides: "This Constitution’s preamble is deemed an integral part of the Constitution."]

Article 1: Tunisia is a free, independent, sovereign state; its religion is Islam, its language Arabic, and its system the Republic. This article cannot be amended....

Article 6: The state protects religion, guarantees freedom of belief and conscience and religious practices, protects sanctities, and ensures the neutrality of mosques and places of worship away from partisan instrumentalisation. The state is committed to spreading the values of moderation and tolerance, and to protect the sacred and prevent it from being attacked, and is also committed to prohibit charges of apostasy (“takfir”) and incitement to hatred and violence, and to combat them.....

Article 20: All citizens, male and female alike, have equal rights and duties, and are equal before the law without any discrimination.....

Article 30: Freedom of opinion, thought, expression, media and publication shall be guaranteed. These freedoms shall not be subject to prior censorship....

Article 38.... The state shall guarantee the right to free public education at all stages and shall seek to provide the necessary means to achieve a high quality of education and training, as it shall work to embed youth in the Arab-Islamic identity and strengthen and promote the Arabic language and expand its usage, and openness to foreign languages and cultures, and dissemination of the culture of human rights.....

Article 46: Children are entitled to dignity, health, moral upbringing, and education from their parents and the state....

Article 125: The Human Rights Commission shall oversee the extent to which human rights and freedoms are respected, and promote human rights and freedoms....

Monday, January 27, 2014

White House Recognizes International Holocaust Remembrance Day

Today, President Obama issued a statement (full text) on International Holocaust Remembrance Day. He said in part:

Yet even on a day of solemn remembrance, there is room for hope. For January 27th is also the day Auschwitz was liberated 69 years ago. The noble acts of courage performed by liberators, rescuers, and the Righteous Among Nations remind us that we are never powerless. In our lives, we always have choices. In our time, this means choosing to confront bigotry and hatred in all of its forms, especially anti-Semitism. It means condemning any attempts to deny the occurrence of the Holocaust. It means doing our part to ensure that survivors receive some measure of justice and the support they need to live out their lives in dignity.

Meanwhile, according to JTA, on Friday the White House announced that it is appointing HHS staffer Aviva Sufian as Special Envoy for U.S. Holocaust Survivor Services. Her work will be directed toward survivors living in poverty and those not receiving services for which they are eligible.

Cert. Petition Seeks Contraceptive Mandate Accommodation Review By Supreme Court Before Circuit Court Decides Appeal

Last week, the Catholic non-profit pro-life organization Priests for Life filed a petition for certiorari (full text) with the U.S. Supreme Court in Priests for Life v. U.S. Department of Health and Human Services, (filed 1/23/2014). The petition asks for high court review even though the Court of Appeals for the D.C. Circuit has not yet ruled in a pending appeal. In the case, a federal district court held that no substantial burden was placed on the group's free exercise by requiring it to complete the self-certification form to opt into the Affordable Care Act contraceptive coverage accommodation for religious non-profits. (See prior posting.) AFLC issued a press release announcing the filing of the petition.

2nd Circuit: Chinese Asylum Applicant Wrongly Questioned By IJ About Doctrinal Knowledge

In Chang Qiang Zhu v. Holder, (2d Cir., Jan. 23, 2013), the U.S. Second Circuit Court of Appeals vacated and remanded for further proceedings the denial by an Immigration Judge of an application for asylum, withholding of removal and relief under the Convention Against Torture brought by a Chinese Christian man who claimed religious persecution in China. The court said in part:

The agency based its credibility determination primarily on Zhu’s testimony concerning his telling of the story of the biblical figure Paul to Chinese authorities during his detention. The agency found that Zhu’s demeanor while testifying was “hesitant” and “evasive” and his account of the story was inconsistent. The record, however, reveals that Zhu’s demeanor began to suffer only when the IJ required him to provide highly detailed information regarding the story of Paul. Indeed, while Zhu was able to explain that Paul was a disciple of Jesus Christ who persecuted Christians, and later converted to Christianity after being blinded on the road to Damascus, he struggled to answer more detailed questions such as what form Paul’s persecution of Christians took or in what year Paul converted to Christianity. By inquiring of Zhu and expecting him to provide this extensive detail, virtually all of which he testified to accurately in any event, the IJ contravened our holding in Rizal v. Gonzales, 442 F.3d 84,90 (2d Cir. 2006), which prohibits relying on a petitioner’s lack of doctrinal knowledge as the basis for an adverse credibility determination or denying relief.

The court also concluded that neither the Immigration Judge nor the Board of Immigration Appeal adequately considered Zhu's claim of a pattern or practice of persecuting Christians in China. The New York Daily News last week reported on the decision.

Sunday, January 26, 2014

Recent Prisoner Free Exercise Cases

In Cottriel v. Jones, 2014 U.S. Dist. LEXIS 6872 (WD OK, Jan. 21, 2014), an Oklahoma federal district court refused to hold the the Oklahoma Department of Corrections in contempt, finding that it has taken every reasonable step to comply with a prior injunction requiring it to furnish an Orthodox Jewish inmate with kosher food.

In Turner v. Hamblin, 2014 U.S. Dist. LEXIS 6986 (WD WI, Jan. 21, 2014), a Wisconsin federal district court dismissed a Muslim inmate's claim that his free exercise rights were infringed because prison officials cancelled Jumuah and Taleem services when an outside volunteer was not available to lead them.

In Hicks v. Ryan, 2014 U.S. Dist. LEXIS 7132 (D MA, Jan. 21, 2014), a Massachusetts federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that he was not allowed to attend church services while he was in the infirmary.

Marshall v. Pennsylvania Department of Corrections, 2014 U.S. Dist. LEXIS 7421 (MD PA, Jan. 22, 2014), is a Pennsylvania federal district court case in which an inmate is challenging the refusal to offer services for Nation of Islam and Muhammad's Temple of Islam adherents separate from broader Islamic services. The court concluded that prior opinions in the case already dealt with a number of issues raised in motions before it, denied plaintiff's motion to amend, and ordered defendants to comply with outstanding discovery requests.

In Cox v. Stephens, 2014 U.S. Dist. LEXIS 7578 (SD TX, Jan. 22, 2014), a Texas federal district court denied a motion by a program analyst to dismiss him as a defendant in a suit by a Native American inmate who claims that grooming rules and rules limiting his wearing of a medicine bag and his participation in a pipe ceremony infringe his free exercise rights.

In Redd v. Lutgen, 2014 U.S. Dist. LEXIS 8070 (ND IA, Jan. 23, 2014), an Iowa federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 155252, Oct. 28, 2013) and dismissed an inmate's complaint that his free exercise rights were infringed when he was told he must sign a "Ramadan Agreement" in order to participate in the Eid feast with other inmates, since his name appeared on the Ramadan list anyway.

In Clay v. Livingston, 2014 U.S. Dist. LEXIS 9186 (ND CA, Jan. 24, 2014), a California federal magistrate judge permitted a Muslim inmate to move ahead with his complaint that Muslims fasting during Ramadan did not receive their lunches.

Saturday, January 25, 2014

Anti-Semitic Packages and Graffiti In Italy Ahead of International Holocaust Remembrance Day

Times of Israel reports that in Italy this week, just ahead of International Holocaust Remembrance Day which falls on January 27 (background), boxes containing pigs' heads were sent to Rome's Great Synagogue, the Israeli embassy in Rome and Rome's Jewish Museum which is hosting an exhibit on the Holocaust. The package sent to the synagogue was delivered on Friday, while the one mailed to the Embassy was intercepted before it was delivered. On Saturday, graffiti reading "the Holocaust is a lie" and "Hannah Frank is a big liar" appeared outside a municipal building in Rome. According to Times of Israel, Rome's mayor condemned the actions, saying on Twitter: "Those who insult the Jewish community offend Rome..."

British Pakistani Sentenced To Death For Blasphemy In Pakistani Court; Sentence Unlikely To Be Carried Out

In Pakistan on Thursday, a court in Rawalpindi sentenced a 70-year old British man, Muhammad Asghar, to death for blasphemy. According to DAWN, the court also imposed a fine of $9500 (US). Asghar was arrested in 2010 after he wrote letters to various people, including the police, claiming that he is a prophet. The prosecutor said that Asghar made the same claim inside the courtroom. According to BBC News, Asghar is a British Pakistani from Edinburgh who came back to Pakistan to look after his family's property. The complaint against him under Sec. 295-C of the Pakistan Penal Code was filed by a tenant who had been served with an eviction notice by Asghar. Before returning to Pakistan, Asghar had been diagnosed as paranoid schizophrenic, but a medical panel appointed by the court in Pakistan rejected the claim of mental illness.

The death sentence is unlikely to be carried out since Pakistan has had a de facto moratorium on the death penalty since 2008. Asghar's lawyer says his conviction will be appealed, and the British foreign office plans to raise its concerns with the Pakistani government. [Thanks to Scott Mange for the lead.]

Friday, January 24, 2014

Supreme Court Enjoins Enforcement of Contraceptive Mandate Against Religious Non-Profit Contingent On Alternative Filing During Appeal

On New Year's Eve, U.S. Supreme Court Justice Sonia Sotomayor issued a temporary injunction to prevent immediate enforcement of the Affordable Care Act contraceptive coverage mandate compromise against the Little Sisters of the Poor. (See prior posting.) Now that the Supreme Court has received the government's response in the case, today the full Supreme Court issued the following unusual order , creating its own sort of compromise as the case proceeds on appeal:

The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders: If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit. To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators. The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.

Ohio Supreme Court Over 3 Dissents Refuses To Reconsider Science Teacher's Firing

In November, the Ohio Supreme Court, in a 4-3 decision, upheld the firing of middle school science teacher John Freshwater for insubordination in failing to comply with orders to remove religious materials from his classroom. (See prior posting.) On Wednesday, the Ohio Supreme Court denied a motion for reconsideration, but the same 3 justices who dissented originally also dissented from the refusal to reconsider. In Freshwater v. Mt. Vernon School District Board of Education, (OH Sup. Ct., Jan. 22, 2014), Justice O'Donnell filed a dissenting opinion (joined by Justices Pfeifer and Kennedy) saying: "This case now stands as a basis for school boards to violate the constitutional rights of veteran teachers and to terminate them for insignificant reasons."

Executor May Pursue Challenge To Assets Left To Legion of Christ

In Chu v. Legion of Christ Inc., (D RI, Jan. 13, 2014), a Rhode Island federal magistrate judge recommended that defendant's motion for summary judgment be denied in a lawsuit claiming that the scandal-ridden Catholic organization, Legion of Christ, used fraud and undue influence to induce college professor Dr. James Boa-Teh Chu to name the Legion as beneficiary of his retirement annuities. The court held that under Rhode Island law the executor of the estate, Chu's son Paul, has standing to bring the suit since if the gift fails the assets would revert to the estate. The court also rejected the claim that the executor lacks standing because Dr. Chu would have left his assets to another Catholic charity if they were not left to the Legion. The magistrate concluded:

All in all, through this muddle, one thing clearly emerges: the record in this case has more than sufficient evidence from which a fact finder could conclude that, absent the influence of The Legion, Dr. Chu’s beneficiary for some or all of his annuities would not necessarily have been another Catholic charity. Accordingly, I find that there is a genuine fact dispute regarding Dr. Chu’s charitable intent.

Examiner reports on the decision.

UPDATE: The federal district court issued an order on Feb. 26, 2014 adopting the magistrate's report and recommendation. (AP).

10th Circuit Rules For Native American Inmate In Cogent Review Of RLUIPA's Requirements

In a highly articulate 31-page opinion by Judge Gorsuch in Yellowbear v. Lampert, (10th Cir., Jan. 23, 2014), the U.S. 10th Circuit Court of Appeals yesterday reviewed each element of a RLUIPA prisoner's rights claim and reversed the trial court's summary judgment against a Native American inmate. Here is the court's description of the case:

Andrew Yellowbear will probably spend the rest of his life in prison. Time he must serve for murdering his daughter. With that much lying behind and still before him, Mr. Yellowbear has found sustenance in his faith. No one doubts the sincerity of his religious beliefs....

That takes us to the nub of our case. Mr. Yellowbear, an enrolled member of the Northern Arapaho Tribe, seeks access to the prison’s existing sweat lodge to facilitate his religious exercises. The prison has refused. The prison’s sweat lodge is located in the general prison yard and Mr. Yellowbear is housed in a special protective unit (not because of any disciplinary infraction he has committed, but because of threats against him). Prison officials insist that the cost of providing the necessary security to take Mr. Yellowbear from the special protective unit to the sweat lodge and back is “unduly burdensome.” Mr. Yellowbear disagrees and seeks relief under RLUIPA. For its part, the district court discerned no statutory violation and entered summary judgment against Mr. Yellowbear. Mr. Yellowbear asks us to undo that judgment so that his case might proceed to trial.

At the end of the day, we find that’s exactly the relief we must provide.

AP reports on the decision.

Litigation Resumes Over Insurance Coverage In Milwaukee Archdiocese Bankruptcy

As the Catholic Archdiocese of Milwaukee completes work on its plan of bankruptcy reorganization, litigation over insurance coverage resumes with competing court filings. The Milwaukee Journal-Sentinel reports that the Archdiocese filed suit yesterday in federal bankruptcy court seeking to recover reimbursement from OneBeacon Insurance Co. for over $2.6 million in legal fees incurred defending claims that the Archdiocese allowed priests who were known sexual abusers to have access to children. In litigation begun before the Archdiocese filed for bankruptcy, two state lower courts had ruled that the claims against the Archdiocese fell under the policy exclusion for intentional acts. The Archdiocese appealed those rulings to the Wisconsin Supreme Court, but before that court could decide the appeal the bankruptcy petition was filed and an automatic stay on litigation was triggered. Yesterday, OneBeacon Insurance Co. filed a motion asking the bankruptcy court to lift the automatic stay and allow the state Supreme Court to decide the matter.

Muslims Want Florida Prisons To Offer Halal Meals

Now that the Justice Department has won a preliminary injunction from a federal district court ordering Florida prisons to make kosher meals available by July 1 to all prisoners with a sincere religious basis for keeping kosher (see prior posting), Muslim groups are asking for Halal meals as well. In a press release yesterday, CAIR-Florida said:

We welcome the decision [on kosher food] as an important step in protecting religious rights of incarcerated individuals. It is only fair and equitable that if Jewish inmates receive kosher food, as they should, that Muslim inmates have access to halal meals. Muslim businesses in our state stand ready to offer the advice and services needed to provide halal meals to inmates.

According to the Huffington Post, Halal prison meals would cost only about one-third of the cost of kosher meals.

Thursday, January 23, 2014

Jury Awards $12.5 M Damages Against Florida Baptist Convention In Sex Abuse Case

Baptist Press (Jan. 21) reports that last week, after a 6-day trial on damages, a Lake County, Florida jury awarded damages of $12.5 million against the Florida Baptist Convention to a man who was molested by a former church planting pastor. In 2005, Douglas Myers, pastor of Triangle Community Church in Eustis, Florida sexually abused 13-year old Christopher Edwards. Myers has completed a 7-year prison sentence for that offense, and has subsequently been sentenced by Maryland courts for other earlier custodial child abuse offenses. The attorney for Florida Baptist Convention says he is confident that the civil jury verdict will be overturned on appeal because the pastor was never an employee of the Florida Baptist Convention.

Virginia's Attorney General Will Not Defend State's Ban On Same-Sex Marriage

In an NPR interview, Virginia's newly-elected Attorney General, Mark Herring, says that his office will no longer defend the state's ban on same-sex marriage. He has concluded that the ban violates the federal equal protection clause. The state's solicitor general will tell a federal court next week that the state is joining the plaintiffs in Bostic v. Rainey, a case challenging the constitutionality of Virginia's same-sex marriage ban. According to the Washington Post, defendants in the case include two county clerks who are represented by separate counsel, so there will still be a defense of the Virginia law presented.

Provisions On Religion In Draft Tunisian Constitution Provoke Intense Debate

In Tunisia, the National Constituent Assembly is debating the draft of a new Constitution. According to Tunisialive (Jan. 21): "After each article attains a majority vote, the document as a whole will be put to a vote in the assembly, with a two-thirds supermajority required for its adoption. If this is not attained, the constitution must face a popular referendum." (English translation of provisions adopted by Jan. 21.)

Debate over Art. 6 on the relationship between religion and state has been particularly heated, leading one Assembly member to faint on Tuesday night after standing and repeatedly shouting "Allahu Akbar" (God is great). Tunisialive (Jan. 22) reported on the sequence of events leading up to this:

Article 6, as passed originally, says the "state protects religion, guarantees freedom of belief and conscience and religious practices, protects sanctities, and ensures the neutrality of mosques and places of worship from partisan instrumentalisation." ...

The text was then amended, however, on January 5 after a dispute between leftist member Monji Rahoui and Islamist member Habib Ellouz, with the latter calling Rahoui an "enemy of Islam" while on a radio program. Rahoui claimed the remark caused him to receive death threats. The assembly then amended Article 6 to include a ban on takfir, or accusing someone of being a nonbeliever, and as well as a ban on "inciting violence."

The amendment was condemned by many religious conservatives, who sought a similar ban on insulting religion, moving lawmakers last night to suggest a compromise amendment, which would commit the state to "protect sanctities from all assault and ban takfir and incitement to hatred and violence."

(See prior related posting.)

U.S. Military Issues New Policy On Religious Accommodation

The Department of Defense yesterday adopted a revised policy on religious accommodation in the military by issuing significant amendments to Department of Defense Instruction 1300.17 on Accommodation of Religious Practices Within the Military Services. (Full text of amended Instruction.). The new policy provides generally that the Department of Defense places a high value on the rights of military personnel "to observe the tenets of their respective religions or to observe no religion at all." It then sets up elaborate criteria for determining whether to grant an exemption from a military rule on religious grounds:

A request for religious accommodation will be promptly granted if it will not affect mission accomplishment.
Where an accommodation would affect mission accomplishment, the "compelling interest"-"least restrictive means" standard of RFRA will be used if the military requirement involved "substantially burdens" a service member's exercise of religion.
Where mission accomplishment is affected and the military policy does not impose a substantial burden, an exemption from it on religious grounds will be denied whenever the needs of mission accomplishment outweigh the needs of the service member.

The directive specifically envisions that accommodations may include matters of grooming and appearance (including hair length), religious tattoos or religiously motivated body piercings. However, in defining when the military has a "compelling interest" in enforcing a policy, the directive provides:

DoD has a compelling government interest in ... elements of mission accomplishment such as military readiness, unit cohesion, good order, discipline, health, and safety, on both the individual and unit levels. An essential part of unit cohesion is establishing and maintaining uniform military grooming and appearance standards.

Wall Street Journal reports on the new policy.

Suit Challenges Blatant Promotion of Christianity In Louisiana School

The ACLU of Louisiana announced yesterday that it has filed a federal lawsuit against a western Louisiana parish school board on behalf of a married couple and their children/ stepchildren alleging that blatant promotion of Christianity by a Negreet (LA) school violates the Establishment Clause. One of the plaintiffs, the mother, has been a practicing Buddhist for 14 years and the lawsuit focuses particularly on harassment by the school of her 6th-grade son who is of Thai descent and a life-long Buddhist. The complaint (full text) in Lane v. Sabine Parish School Board, (WD LA, filed 1/22/2014) alleges in part:

[S]chool officials have a longstanding ... practice of promoting and inculcating Christian beliefs by sponsoring religious activities, as well as conveying religious messages to students.... [A]t Negreet, which serves students in kindergarten through twelfth grade, teachers ask students for professions of faith in class. At least one science teacher treats the Bible as scientific fact, telling students that the Big Bang never happened and that evolution is a “stupid” theory that “stupid people made up because they don’t want to believe in God.” Paintings of Jesus Christ, Bible verses, and Christian devotional phrases adorn the walls of many classrooms and hallways.... And staff members routinely lead students in Christian prayer....

[W]hen ... C.C..... enrolled in the sixth grade ..., he quickly became the target of proselytizing and harassment by one of his teachers ... who ... told her students that [C.C.'s] faith, Buddhism, is “stupid.”

[When C.C.'s parents complained] ... the Sabine Parish Superintendent of Schools ... told the Lanes that “[t]his is the Bible Belt” and that they would simply have to accept that teachers would proselytize students. She also asked whether C.C. had to be raised as a Buddhist and whether he could “change” his faith, and she suggested that C.C. transfer to another district school – more than 25 miles away where, in her words, “there are more Asians.”

In addition to filing suit, the ACLU plans to file complaints with the Department of Education and Department of Justice.