Recent Prisoner Free Exercise Cases

In Parks-El v. Fleming, (4th Cir., Jan. 10, 2007), the U.S. 4th Circuit Court of Appeals affirmed the dismissal of an inmate's equal protection claim, but vacated the dismissal of his RLUIPA and free exercise claims. The inmate had been suspended from attending chapel services because he was involved in posting unauthorized flyers in inmate housing units.

In Justus v. Southwest Virginia Regional Jail Authority, 2007 U.S. Dist. LEXIS 1161 (WD VA, Jan. 5, 2007), a Virginia federal district court rejected an inmate's challenge to a lock down that kept him in his cell when he said that he did not wish to attend religious services being held in his pod.

In Banks v. Fraiser, 2007 U.S. Dist. LEXIS 235 (D NJ, Jan. 3, 2007), a New Jersey federal district court dismissed a prisoner's claim that he was denied a religious "no meat" diet.

Another case, decided several months ago, has recently become available on LEXIS. In Boyd v. Lehman, 2006 U.S. Dist. LEXIS 94223 (WD WA, May 19, 2006), adopting Magistrate Judge's report and recommendation (2006 U.S. Dist. LEXIS 94222), a Washington federal district court dismissed claims by a prisoner that he was only given a vegetarian diet, and not one that included halal meat. It also rejected his claim regarding temporary problems with the time of Ramadan meals.

10th Circuit Says BYU Police Force Does Not Create Establishment Clause Problems

In Raiser v. Church of Jesus Christ of Latter Day Saints, (10th Cir., Jan. 10, 2007), the U.S. 10th Circuit Court of Appeals rejected a novel Establishment Clause claim. Aaron Raiser, an applicant to Brigham Young University's graduate school, sued claiming the University disclosed information about his prior psychiatric history. Part of his claim related to the University's sharing information about him with its police force. In particular, Raiser alleged that the "[state] statute . . . which allows [BYU] to maintain a state empowered police force . . . fosters an excessive governmental entanglement with religion," and that "[t]he state/church entanglement has injured Plaintiff." The court said that there was no religious component to the actions of the police force in dealing with Raiser, so that the district court was correct in holding that Raiser lacked standing to pursue an Establishment Clause claim.

Utah Files Brief Opposing Cert. In Polygamy Case

In October, convicted bigamist Rodney Holm filed a petition for certiorari [Westlaw link] with the U.S. Supreme Court seeking review of the Utah Supreme Court's determination that the state's polygamy laws were constitutional. Today's Salt Lake Tribune reports that the Utah Attorney General originally waived a response to Holm's petition, citing costs involved and the unlikelihood that cert. would be granted. However, the Supreme Court's clerk notified the state in November that the justices wanted Utah's views before they decided whether to grant certiorari. So on Friday the state filed a brief in opposition to the granting of cert., arguing that the case does not pose an issue of widespread national importance and that Holm's case, which involved a minor, is not the appropriate case to use for testing the constitutionality of the law.

European Court Finds Russia Violated Religious Rights of Jehovah's Witnesses

On Thursday, the European Court of Human Rights handed down a decision in Kuznetsov and Others v. Russia, (Application No. 184/02, Jan. 11, 2007), finding that various actions by the Russian government that disrupted religious services being held by Jehovah's Witnesses and which led to the termination of their lease for an auditorium in which to hold services violated their religious freedom as protected in Article 9 of the European Convention on Human Rights. The Institute On Religion and Public Policy issued a release detailing more information about the decision.

School Board Requires Opposing Views On Climate Change After Religious Objection To Gore's Film

In Federal Way, Washington, the School Board last week required that teachers showing Al Gore's film on climate change, An Inconvenient Truth, must also present their classes "a credible, legitimate opposing view" to Gore's views on global warming. In addition, teachers must obtain consent of the principal and superintendent to show the film. The Seattle Post-Intelligencer on Thursday reported that the school board action followed a complaint by parent Frosty Hardison-- who also believes in teaching creationism and opposes sex education in schools. Hardison said: "Condoms don't belong in school, and neither does Al Gore. He's not a schoolteacher. The information that's being presented is a very cockeyed view of what the truth is. ... The Bible says that in the end times everything will burn up, but that perspective isn't in the DVD." Meanwhile, Hardison's wife Gayla, said: "If you're going to come in and just say America is creating the rotten ruin of the world, I don't think the video should be shown." School board President Ed Barney said that the district has a policy of presenting both sides of controversial issues. [Thanks to Ronald L. Chichester for the lead.]

9th Circuit Vacates State Constitutional Challenge To Mt. Soledad Cross As Moot

Yesterday, in Paulson v. City of San Diego, (9th Cir., Jan. 12, 2007), the U.S. 9th Circuit Court of Appeals dismissed an appeal as moot and ordered the lower court to vacate its May 3, 2006 order to enforce a 1991 injunction to remove the Mt. Soledad cross from its prominent display on city land. The federal district court had found that the display of the cross violated provisions in California's constitution on separation of church and state. Last year, federal legislation divested the city of title to the land and transferred the Mt. Soledad Veterans War Memorial to the United States. So the city no longer has any interest in the Memorial and the federal government is not subject to the provisions of the California constitution. Today's San Diego Union-Tribune and North County Times covered the decision.

Clergy Abuse Claims Against Vatican May Proceed In U.S. Court

In O'Bryan v. Holy See, (WD KY, Jan. 10, 2007) [available in PACER], a Kentucky U.S. District Court issued an 18-page opinion interpreting the Foreign Sovereign Immunities Act (FSIA) to permit certain claims relating to clergy sexual abuse in the United States to be brought against the Vatican. It held that while the Vatican is a foreign state covered by the FSIA (see prior posting), the "tort exception" to the Act permits some of plaintiffs' claims to be brought in U.S. courts. It held that to the extent that archbishops, bishops and priests acted in the United States as officials or employees of the Vatican pursuant to Holy See policy, they were acting within the scope of their employment. The Vatican can thus be liable for clergy's failure to warn parishioners that their children would be under the care of known or suspected pedophiles, and for failing to report known or suspected abusers to state and local authorities. However the court left open the possibility that future evidence might show that the Holy See does not exert sufficient control over clergy to make them officials or employees of the Vatican.

Yesterday's Louisville Courier-Journal reporting on the decision quoted plaintiffs' attorney William McMurry who said that the lawsuit could lead to attorneys taking depositions of Vatican officials, obtaining copies of church documents and ultimately determining "what prompted all of the bishops to keep quiet, hide these pedophiles and refuse to report child abusers.".

Commentary: The First Amendment Dilemma In The Battle Against Islamic Terrorism

In the 1943 Flag Salute case that upheld the right of Jehovah's Witness students to refuse to salute the flag, Justice Robert Jackson wrote the following paragraph that has come to be seen as the essence of First Amendment protections: "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us." Since 9/11, a troubling question has been whether government officials may prescribe what is orthodox Islam in an attempt to distinguish radical jihadists-- who the U.S. is fighting-- from other Muslims whose religious practice the U.S. is dedicated to protect. Two developments this week point up the problem.

President Bush, speaking yesterday to military personnel and families at Ft. Benning, Georgia (full text) arguably attempted to define what is and is not a valid religious belief. He said: "It's important for the American people to understand al Qaeda still is in Iraq.... They don't believe in freedoms, like freedom to worship. I, frankly -- well, speaking about religion, these are murderers. They use murder as a tool to achieve their objective. Religious people don't murder. They may claim they're religious, but when you kill an innocent woman, or a child to create a political end, that's not my view of religion. And yet, there are a lot of peaceful, religious people in the Middle East."

On Tuesday the House of Representatives passed HR 1, a bill implementing recommendations of the 9/11 Commission. Title XIV is titled "Quality Educational Opportunities in Arab and Predominantly Muslim Countries". The bill establishes a fund to encourage educational reform in Arab and predominantly Muslim countries. One of the bill's goal is to "dramatically increase... the availability of modern basic education through public schools in Arab and predominantly Muslim countries, which will reduce the influence of radical madrassas and other institutions that promote religious extremism." (Sec. 1411(b)(1)). Is Congress here attempting to supplant the teaching of Islamic fundamentalism with a version of Islam that it finds more acceptable? If that is a fair characterization of the bill, are there any First Amendment objections to it?

Court Orders Release of Diocese Records To Insurance Companies

Yesterday's Boston Herald reported that Berkshire Superior Court Associate Justice John A. Agostini has ordered the Roman Catholic Diocese of Springfield, Massachusetts to release nearly 7,500 pages of documents to insurance companies that the Diocese is suing in order to get them to cover claims of 57 people who allege they were sexually abused by priests. The court rejected the Diocese's claim that the records are protected by the First Amendment or by the priest-penitent of psychotherapist-patient privilege. However the court agreed that some of the records are protected by the lawyer-client privilege. Insurers want to determine how the Diocese handled allegations of sexual abuse by priests when they received complaints. (See prior related posting.)

Rabbis Tell Congress To Raise Minimum Wage

The Religious Action Center of Reform Judaism reports that 450 rabbis and rabbinical students sent a letter to every member of Congress yesterday in support of an increase in the minimum wage to $7.25 per hour. Rabbi Jill Jacobs, Director of Education at Jewish Funds For Social Justice, is an authority on wage issues in Jewish law. Supporting the letter, she said: "Jewish labor law rests on the assumption that a full time worker shall earn enough to support his/her family."

New Jersey AG Says Clergy Need Not Perform Civil Unions

New Jersey Attorney General Stuart Rabner yesterday issued written advice to the State Registrar of Vital Statistics concluding that, when a New Jersey law authorizing civil unions takes effect on February 19, members of the clergy are not required to perform civil union ceremonies if doing so would conflict with "sincerely held religious beliefs". However public officials who are available to solemnize marriages would be violating the state's anti-discrimination laws if they refuse to also solemnize civil unions. (Press release; full text of letter.) The Associated Press reported on the AG's letter.

FDA's Approval Of Cloned Animals Poses No Issue For Kashrut Certification

While some conservative religionists have objected to the Food and Drug Administration's recent approval of the safety of milk and meat from cloned animals (see prior posting), apparently cloned animals pose no problems for Orthodox Jewish determinations of whether meat is kosher. Wednesday's Washington Jewish Times reports that Maryland Rabbi Yitzchok Breitowitz said: "I do not see a kashrus issue here. Judaism as a whole does allow us to use creative ways of reproduction." Avrom Pollak, head of the Star-K agency that certifies food as kosher, said: "If it looks like a cow, if it chews its cud like a cow, if it has split hooves like a cow, then it's a cow; and how it got to be a cow does not affect its kosher status."

Church's Proposed Deal With High School Debated

Los Angeles' Daily Breeze yesterday reported on an unusual proposal for use of El Segundo, California High School premises on Sundays by El Segundo Foursquare Church. Last November, a bond measure to repair the school's auditorium failed to pass. So now it is proposed that Foursquare Church will pay for $180,000 worth of renovations, in addition to paying a monthly rental, in exchange for using the school all day each Sunday. Loyola Law School Professor Kurt Lash said: ""If this is a unique deal that has not been offered to anybody else and is unlikely to be offered to anybody else, we might have a problem here as a public facility showing preference and getting uniquely involved with a religious group."

6th Circuit Holds Hospital Did Not Waive Reliance On Ministerial Exception To ADA

Yesterday, in Hollins v. Methodist Healthcare Inc., (6th Cir., Jan. 10, 2007), the U.S. 6th Circuit Court of Appeals held that the ministerial exception to claims under the Americans With Disabilities Act requires dismissal of a discrimination claim brought by resident in the clinical pastoral educational program of a religiously affiliated hospital. The court refused to accept plaintiff's argument that the hospital had waived its right to rely on the ministerial exception by agreeing it would not discriminate on the basis of disability when it sought and obtained accreditation from the Association of Clinical Pastoral Education. [Thanks to Blog from the Capital for the lead.]

Israeli Activist Claims House Arrest Monitoring Violates His Religious Freedom

In Israel, Avraham Zarbiv, an Haredi (ultra-Orthodox Jewish) activist, was removed from house arrest and placed in jail because he refused to wear an ankle bracelet to monitor his movements on the Sabbath. Yesterday's Jerusalem Post reports that there is a disagreement among Orthodox rabbis over whether wearing the bracelet is consistent with Sabbath restrictions. Haredi activists view the court's order against Zarbiv as an attack on religious freedom.

Rehearing and En Banc Review Sought In Boy Scouts Case

As previously reported, on December 18, 2006, in order to avoid deciding a federal constitutional question, the U.S. 9th Circuit Court of Appeals certified three questions to the California Supreme Court in Barnes-Wallace v. Boy Scouts of America. The lawsuit challenges the constitutionality of the City of San Diego's leasing, at nominal rentals, to the Boy Scouts city property on which the Scouts operate a campground and aquatic center. The 9th Circuit asked the California court to consider whether the leases, under state law, unconstitutionally provide support for a creed. However, on December 26, the 9th Circuit issued another order requesting the California Supreme Court to delay considering the certified questions because a 9th Circuit judge had filed a notice that might lead to en banc review. In a press release issued last week, the Boy Scouts revealed that they had filed a petition for rehearing and for en banc review with the 9th Circuit. The petition to the 9th Circuit (full text) argues that the panel majority's decision on standing was in conflict with controlling US Supreme Court decisions, and that it ignored the procedural posture of the case and failed to include the facts necessary for an informed resolution of the certified questions. [Thanks to How Appealing for the lead.]

House of Lords Refuses To Reject Sexual Orientation Anti-Discrimination Rules

Despite demonstrations and pressure from Christians, on Tuesday the House of Lords defeated a motion to reject Northern Ireland's Sexual Orientation Regulations. Gay.com reported yesterday that the Lords voted 199 - 68 to reject a motion by Lord Morrow who had argued that "the regulations threaten to override the conscience and free speech of Christians". (See prior related posting.)

Bus Company Sued By Employees For Religious Discrimination

Yesterday's Minneapolis Star Tribune reported that nine current and former employees of MV Transportation Inc. have filed a religious discrimination suit under both state and federal law in federal district court in Minneapolis. Among the allegations are that an MV manager read Bible passages to the employees, seven of whom are Muslim, confiscated their prayer rugs and forced them to listen to loud Christian music. The suit also alleges various acts of national origin discrimination. The Equal Employment Opportunity Commission investigated the employees' complaints and issued "right to sue" notices to them.

Egyptian Official Opposes Wearing of Niqab

Middle East Online yesterday reported that an aide to Egypt's Minister of Religious Endowments expelled a religious counselor attending a training session for religious advisors and prayer leaders because she refused to remove her niqab (full face veil). Minister Hamdi Zaqzuq, who opened the training session, later said: "I totally reject the niqab (face veil). No religious counselor needs to wear it since it is not required by Islamic law."

No Tax Exemption For Combined Synagogue- Living Quarters

In Sephardic Congregation of S. Monsey v Town of Ramapo, (Sup Ct Rockland Co. NY, Jan. 8, 2007), a New York state trial court has held that property owned by s Sephardic Jewish congregation and used both as its synagogue and as a residence for its rabbi is not tax exempt. Because the property is not used primarily for religious services, it is not exempt under RPTL 420-a. Because the rabbi has full-time outside employment as a special education teacher at a school, Yeshiva of North Jersey, he is only a part-time clergyman for the synagogue and, as such, the residence is not exempt as a parsonage under RPTL 462. Today's Lower Hudson Journal News covers the decision.