Recent Prisoner Free Exercise Cases

In Ghailani v. Holder, 2014 U.S. Dist. LEXIS 1986 (D CO, Jan., 8, 2014), a Colorado federal magistrate judge gave an inmate 30 days to file an amended complaint setting out more details of his claim that "special administrative measures" imposed on him violates his free exercise rights.

In Lewis v. Nevada, 2014 U.S. Dist. LEXIS 2045 (D NV, Jan. 7, 2014), a Nevada federal district court, while severing claims of several plaintiffs and dismissing a number of claims, permitted an African-American Hebrew Israelite inmate to move forward with his free exercise, RLUIPA and equal protection challenges to the denial of kosher meals and the insistence that he accept Common Fare meals. Plaintiff claimed that Jews who are white still receive kosher meals.

In Strickland v. Van Lanen, 2014 U.S. Dist. LEXIS 873 (ED WI, Jan. 3, 2014), a Wisconsin federal district court permitted a Muslim inmate to proceed with his complaint that strip searches in areas that lack privacy infringe his religious beliefs.

In Carmichael v. Geo Group, 2014 U.S. Dist. LEXIS 2697 (ED CA, Jan. 8, 2014), a California federal magistrate judge permitted a Muslim inmate to proceed with his complaint that he was denied a halal diet and the ability to purchase halal meat.

In Irvin v. Yates, 2014 U.S. Dist. LEXIS 2120 (ED CA, Jan. 8, 2014), a California federal magistrate judge dismissed with leave to file an amended complaint a Muslim inmate's free exercise, RLUIPA and equal protection claims.

In Sessing v. Beard, 2014 U.S. Dist. LEXIS 238 (ED CA, Jan. 2, 2013), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that his exercise of his Asatru (Odinism) faith is burdened by denial of his request for construction of an outdoor worship enclosure.

"Avoidable Consequences" Doctrine Prevents Recovery For Jehovah's Witness Death

In Braverman v. Granger, (MI App., Jan. 9, 2014), a Michigan appeals court held that the doctrine of "avoidable consequences" prevents recovery in a wrongful death medical malpractice suit brought by the personal representative of a deceased Jehovah's Witness woman who refused a blood transfusion that was needed to deal with complications from a kidney transplant.  The court rejected a test that would look to whether refusing a blood transfusion was subjectively reasonable in light of a person's religious beliefs, saying that this test would require the trier of fact  to decide either the reasonableness of a person's religion or of her decision to follow her religious beliefs in the face of death. The court held that instead "the proper inquiry is whether the blood transfusion was an objectively reasonable means to avoid or minimize damages following the person’s original injury...."

In a concurring opinion, Judge Boonstra added:

I write separately only to emphasize that our opinion should not be interpreted as reflective of any viewpoint regarding religion generally or any particular religious belief or expression. To the contrary, it is reflective of the spirit of the First Amendment of the United States Constitution, and its guarantee of every person’s right to freely exercise the religious beliefs and expressions of his or her choice, without governmental interference.

AP reports on the decision.

Grand Jury Refuses To Indict Snake Handling Pastor

In Campbell County Tennessee last Wednesday, a grand jury refused to hand down indictments against Rev. Andrew Hamblin who was charged after state wildlife officials raided his Tabernacle Church of God and seized 53 poisonous snakes handled by the congregation during worship services.  Hamblin is the co-star of the National Geographic Chanel's reality series Snake Salvation. (See prior posting.)  According to Religion News Service, Hamblin was allowed to address the grand jury for 30 minutes. He argued that the snakes belong to the church, not to him, and that the state's ban on them violates the congregation's religious liberty.

11th Circuit: Challenge To Removal of Prayer Dismissed On Standing Grounds

In Holyfield-Vega v. United States, (11th Cir., Jan. 8, 2014), the U.S. 11th Circuit Court of Appeals affirmed the dismissal for lack of standing plaintiff's complaint that the removal of prayer from schools and other areas violated her free exercise of religion. Plaintiff failed to describe how she had been injured by the challenged conduct.

Britain's Charity Commission Agrees To Register Insular Christian Church After It Makes Various Changes

Under British law, for an organization (including a religious organization) to be registered by the Charity Commission as a charity it must, among other things, show that it was created for the "public benefit." (See prior posting.) In 2012, the Charity Commission refused, on public benefit grounds, to register the Preston Down Trust (PDT) which supports the Plymouth Brethren Christian Church. The Commission found that the church's doctrine of "separation from evil" resulted in limited interaction with the community beyond the Brethren. It also heard evidence of disciplinary practices that were allegedly harmful. Following that decision, an appeal was filed, but it was stayed as the parties explored a negotiated settlement. Britian's Charity Commission announced this week that an agreement has been reached. In Application for the Registration of the Preston Down Trust, (Charity Commn., Jan. 3, 2014), the Charity Commission concluded that it is willing to register PDT on the basis of revisions in its governing document and changes in its practices that have lessened its insularity-- such as public access to worship, street preaching and a certain amount of engagement with the wider community including disaster relief. The Commission has also published a summary of the decision. Law & Religion UK blog reports further on the Commission's action, as does The Christian Institute. [Thanks to Alliance Alert for the lead.]

Vatican Says Its Former Nuncio to Dominican Republic Has Diplomatic Immunity and Is Not Extraditable On Sex Abuse Charges

The Vatican says that Polish Catholic Archbishop Josef Wesolowski who is being investigated on sex abuse charges by authorities in both the Dominican Republic and Poland has full diplomatic immunity.  AP reports today that Wesolowski, who served as Apostolic Nuncio (Ambassador) to the Dominican Republic from 2008 until 2013, was recalled to the Vatican and relieved of his position in August after Pope Francis was informed of rumors that Wesolowski sexually abused teenage boys in the Dominican Republic. Polish prosecutors recently inquired of the Vatican about Wesolowski's legal status as part of the investigation that they are also conducting, and were told that, in addition to diplomatic immunity, Wesolowski is a citizen of the Vatican City state and that the Vatican does not extradite its citizens. The Vatican says it is cooperating with Poland and the Dominican Republic in their investigations, and that two separate Vatican tribunals are investigating Wesolowski for both canonical and criminal violations.

Belated Objections By Jehovah's Witness Juror Cause Mistrial

As reported by the Washington Post, belated religious objections by a juror caused a Prince Georges County, Maryland trial court last Thursday to declare a mistrial in the manslaughter trial of Kevon Neal.  Neal, who was being pursued for driving a stolen car, was charged with causing the death of a police officer who lost control of his police cruiser in the chase. After 3 days of testimony, alternate jurors were released and the jury began deliberations.  At 1:00 a.m. of the day deliberations were to resume, a juror sent the judge a not saying that because of her beliefs as a Jehovah’s Witness, she could not "sit in judgment of another human being."  The juror has been charged with contempt of court and a hearing on that charge will be held Feb. 24. [Thanks to Steven Jamar via Religionlaw for the lead.]

U.S. and Utah Clarify Status of Same Sex Marriages That Were Performed In Utah Before Supreme Court Stay

U.S. Attorney General Eric Holder today issued a statement (full text) confirming that the federal government will recognize the same-sex marriages performed in Utah in the two weeks before the U.S. Supreme Court issued a stay stopping them while an appeal to the 10th Circuit is pending. Describing the Supreme Court's action as "an administrative step," Holder said in part:

for purposes of federal law, these marriages will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages.  These families should not be asked to endure uncertainty regarding their status as the litigation unfolds.

Meanwhile yesterday Utah's Attorney General distributed a letter (full text) to all County Attorneys and County Clerks in the state advising that they should send marriage certificates to same-sex couples whose marriage ceremonies took place between Dec. 20 and Jan. 6. The letter advises in part:

Based on our analysis of Utah law, the marriages were recognized at the time the ceremony was completed.

While the validity of the marriages in question must ultimately be decided by the legal appeals process ..., the act of completing and providing a marriage certificate for all couples whose marriage was performed prior to the morning of January 6, 2014, is administrative and consistent with Utah law.  Therefore, it is recommended that county clerks provide marriage certificates to all persons whose marriages were solemnized during this period as an administrative function and not a legal function. This would allow ... couples ... to have proper documentation in states that recognize same-sex marriage.

Advocacy Group Asks U.S. and 18 States To Recognize 1300 Utah Same-Sex Marriages

Given the uncertainty surrounding the status of some 1300 same-sex marriages that were solemnized in Utah between December 20 (when a district court legalized them) and Jan. 6 (when the U.S. Supreme Court stayed the district court order), Human Rights Campaign yesterday wrote the attorneys general in the 18 states that recognize same-sex marriages, asking them to recognize these marriages for any couples that travel through or relocate in their states. (Full text of letter.) (Press release.) The letter asks the AGs to issue advisory opinions declaring that they will do so. Reuters reports that Human Rights Campaign yesterday also wrote U.S. Attorney General Eric Holder asking that the federal government extend recognition to these marriages so that the couples will be eligible for federal benefits due to married couples.

Insurance Company Must Defend South Carolina Episcopal Church In Trademark Suit By Breakaway Diocese

In The Episcopal Church in South Carolina v. Church Insurance Company of Vermont, (D SC, Jan. 6, 2014), a South Carolina federal district court held that an commercial liability insurance policy issued by Church Insurance Company of Vermont requires the insurance company to defend The Episcopal Church in South Carolina (TEC-SC) in a state court lawsuit against it by a break-away diocese over which group has the right to use the Episcopal Church trade names, trademarks, services, and emblems. (See prior posting.) The court also held that the insurance company had breached its contract in refusing to defend TEC-SC, but that bad faith had not been shown. TEC-SC issued a press release announcing the decision.

Magazine Ranks Top Law Schools For Religiously Devout Students

The Winter 2014 issue of Pre-Law Magazine has published a new set of law school rankings-- Best Law Schools for the Devout. Topping the list of the 10 best law schools for devout Catholics are Ave Maria and University of St. Thomas-Minneapolis. Leading the list of the 5 best law schools for devout Christians (non-Catholic) are Liberty and Trinity. At the top of the 5 best for devout Mormons: Brigham Young and Creighton. Heading the list of the 5 best law schools for devout Jews are Cardozo and Touro. And topping the list of the 5 best law schools for devout Muslims are UCLA and Michigan State. [Thanks to Mirror of Justice for the lead.]

Fired Police Officer Sues Claiming Anti-Semitic Harassment

Courthouse News Service reported yesterday on a lawsuit filed in a Michigan state trial court (Oakland County) by Lowell Phillips, a former officer in the Ferndale, Michigan police department. Phillips was the only Jewish officer on the force, and he contends that he was subjected to a barrage of anti-Semitic harassment and discriminatory treatment.  After he was involved in a high-speed chase in which he ultimately killed a suspect in self-defense, the police department fired him. Phillips claims the police department used the shooting as a pretext, and that he was actually fired because he is Jewish and in retaliation for his complaining about harassment and discrimination.

Town Council Member Sworn In As First Open Pastafarian Office Holder

In Pomfret, New York last Friday, Christopher Schaeffer was sworn in as a member of the Town Council wearing a pasta colander on his head-- the traditional headgear of the satirical Pastafarian movement. Gawker reports that this is the first open member of the Church of the Flying Spaghetti Monster to be sworn into public office. Schaeffer told a local newspaper: "It's just a statement about religious freedom. It's a religion without any dogma." [Thanks to Arthur Spitzer for the lead.]

French Court Fines Muslim Woman For Wearing Niqab In Public

In France yesterday, a court in Versailles dismissed a constitutional challenge to France's 2010 law prohibiting women from wearing the niqab or burqa in public.  According to Voice of America,  the court fined Muslim convert Cassandra Belin 150 euros and imposed a 1-month suspended sentence for wearing the niqab in public and for insulting police who ticketed her for doing so. In a different case, a challenge to France's anti-niqab law is pending before the European Court of Human Rights.

Utah Will Deny New Benefits To Same-Sex Couples While Appeals Are Pending

As previously reported, on Dec. 20 a federal district court in Utah struck down Utah's ban on same-sex marriage.  However on January 6 the U.S. Supreme Court temporarily stayed the district court's order while an appeal is working its way through the 10th Circuit.  This left Utah authorities to figure out the status of some 1000 same-sex couples who were married in the state between Dec. 20 and January 6.  Yesterday Utah Attorney General Sean Reyes issued an Official Statement on how those marriages will be treated for now:

... We are unable to reach a legal conclusion as to the ultimate validity of marriage  between persons of the same sex who completed their marriage ceremony in Utah between Dec 20, 2013 and Jan. 6, 2014. That question remains unanswered and the answer will depend on the result of the appeal process.

The Office of the Attorney General has advised the Governor in this case and will continue to work with the Governor and the individual agencies as they evaluate the application of specific policies and benefits within their agencies. A review team has been established to advise on a case-by-case basis.....

While the ultimate validity of such marriages is subject to the decision of a higher court, it is clear that the State is bound by law to limit any benefits attaching after the stay.

CNN reports that the governor's office has advised all state cabinet officials that "state recognition of same-sex marital status is ON HOLD until further notice."

Sikh Woman Sues After Go Kart Facility Cuts Her Hair To Free Her In Accident

Courthouse News reported Tuesday on a suit filed recently in Chicago's Cook County (IL) Circuit Court by a Sikh woman who is distressed that the operators of a Go Kart track insisted on cutting her hair to free her after her hair was sucked into the engine of the Go Kart she was driving. Friends with Holly Hanjra at the time insisted that the staff of  Melrose Grand Prix call 911 rather than cut Hanjra's hair, because of its religious significance. The suit seeks damages for assault and battery; emotional distress; willful, wanton and negligent misconduct; and negligent hiring, retention and supervision.

Satanic Temple Releases Proposed Design For Oklahoma Capitol Monument

The New York-based Satanic Temple has released its proposed design for a monument it wishes to erect on the Oklahoma State House grounds to complement the Ten Commandments monument placed there in 2012.  According to Monday's National Journal:

The proposed monument features a 7-foot-tall Baphomet, a goat-headed creature which is sometimes used as a stand-in for Satan. The demon's lap, flanked by a smiling child on each side, will double as a seat for visitors.

The Temple has exceeded its $20,000 goal to pay for the statue, raising more than that on the crowd funding site Indiegogo. The Oklahoma Capitol Preservation Commission has placed all applications on hold while a challenge to the Ten Commandments monument by the ACLU works its way through the courts. (See prior posting.)

Massachusetts City Votes To Move Nativity Scene Back To City Hall

In Lowell, Massachusetts, the issue of December holiday displays has arisen early this year.   Today's Lowell Sun reports that City Council voted unanimously yesterday to approve a motion requesting that the Nativity scene which last year was moved to church property be returned this December to its traditional location at the plaza next to City Hall.  The motion also calls for the city to study how the display can be expanded to honor other traditions and cultures.  The display was moved last year after complaints and a legal review which concluded that the display posed constitutional problemss. Council member Rita Mercier who sponsored the motion to bring the display back to City Hall said yesterday: "I don't worry about what other people think. I worry about who that figure laying in the manger represents. I fear what he thinks."

Los Angeles County Seal Changed To Add Cross Atop Depiction of Mission Building

According to the DiamondBar-Walnut Patch, the Los Angeles County Board of Supervisors yesterday created a new Establishment Clause controversy, voting 3-2 to approve a motion (full text) to modify the county seal to add a cross atop the depiction of the San Gabriel Mission already on it.  A version of the seal that the county adopted in 1957 had included a cross.  In 2004 the ACLU objected and the county redesigned the seal to eliminate the cross and change other images on it. (Background.) The new seal depicted the San Gabriel Mission without a cross because in 2004 the cross that used to be on the Mission had been removed for retrofitting after an earthquake.  In 2009 the cross was reattached to the Mission.  Supporters of yesterday's change say that the depiction of the Mission had become "artistically and architecturally inaccurate."  Opponents say that argument is disingenuous.

Utah AG Studying Status of Same-Sex Marriages Already Performed In the State

Following yesterday's Supreme Court order that halts same-sex marriages in Utah while the appeal in Herbert v. Kitchen makes its way through the 10th Circuit, the status of same-sex couples who have married since the Dec. 20 district court decision allowing them is uncertain.  Yesterday the Utah Attorney General's Office issued an Official Statement  saying that it "is carefully evaluating the legal status of the marriages that were performed since the District Court’s decision and will not rush to a decision that impacts Utah citizens so personally." It explained:

There is not clear legal precedence for this particular situation. This is the uncertainty that we were trying to avoid by asking the District Court for a stay immediately after its decision.  It is very unfortunate that so many Utah citizens have been put into this legal limbo.

Noah Feldman has an interesting discussion of the Supreme Court's action at Bloomberg Opinion.