Religion Clause

Monday, April 12, 2010

Additional Recent Prisoner Free Exercise Cases

In Babcock v. Clarke, (9th Cir., April 6, 2010), the 9th Circuit held that requiring an inmate to use his committed name along with his religious name on correspondence, intead of his religious name alone, and requiring staff to refer to him only by his committed name, does not violate RLUIPA or the free exercise clause.

In Holley v. California Department of Corrections, (9th Cir., April 5, 2010), the 9th Circuit held that California had not waived sovereign immunity in a damage suit by an inmate who claimed that prison regulations requiring him to wear short hair placed a substantial burden on his exercise of religion.

In Henderson v. Langenbrunner, 2010 U.S. Dist. LEXIS 32558 (MD FL, April 2, 2010), a Florida federal district court rejected a Muslim inmate's complaint over a 35 minute delay in delivering his bagged meal for Ramadan.

In Perez v. New York State Department of Correctional Services, 2010 U.S. Dist. LEXIS 32500 (ND NY, March 16, 2010), a New York federal magistrate judge rejected an inmate's claim that a strip frisk after a Catholic Family Day event deterred him from attending other Catholic religious services.

In Smith v. Graziano, 2010 U.S. Dist. LEXIS 33878 (ND NY, April 6, 2010), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 33811, March 16, 2010), and held that an inmate's free exercise rights and his rights under RLUIPA were not infringed when Protestant religious services were not held on two Sundays.

In Robinson v. Roper, 2010 U.S. Dist. LEXIS 34286 (CD CA, April 7, 2010), a California federal district court adopted a magistrate's findings (2010 U.S. Dist. LEXIS 34281, Feb. 16, 2010), and found no violations of plaintiff's free exercise rights or rights under RLUIPA. Plaintiff, who was confined under the state's violent sexual predator law, complained that during a search of his room, his Bible, Koran and prayer rug were placed on the floor.

In Hazle v. Crofoot, 2010 U.S. Dist. LEXIS 34108 (ED CA, April 6, 2010), a California federal district court held that parole and correctional officers were liable for violating an Atheist inmate's Establishment Clause rights by requiring him, as a condition of parole, to attend a religion-based 12-step program.

In Myles v. Wallace, 2010 U.S. Dist. LEXIS 34684 (ND WV, April 8, 2010), a West Virginia federal district court adopted a magistrate's recommendations (2008 U.S. Dist. LEXIS 112631, Nov. 7, 2008) and held that no substantial burden was placed on an inmate's free exercise when two orders of religious materials he placed and paid for were by mistake placed in the chapel library instead of being delivered to him.

RLUIPA Suit Challenges Denial of Rezoning For Islamic Learning Center

The Council on American-Islamic relations last week announced that it had filed a RLUIPA lawsuit in federal court in Chicago challenging DuPage County's rejection of a zoning permit for the Irshad Learning Center that would serve some 30 Shia Muslim families primarily of Middle Eastern origin. No reasons were given by the County Board for rejecting the Naperville location, and Muslim community members fear the decision was influenced by anti-Islamic attitudes. The Chicago Tribune reports that the county's Development Committee had approved the project, but the Zoning Committee voted against it. Anti-Muslim demonstrations took place outside the County Board meeting. Before the vote, opponents claimed the Center had financial ties to a foundation suspected of aiding Iran's nuclear weapons program. Proponents believe the county imposed higher standards on the school than it would have done for a non-Muslim institution.

Sunday, April 11, 2010

British Religious Leaders Want Special Judicial Panel To Hear Religious Rights Cases

Today's London Times reports that Lord Carey, the former Archbishop of Canterbury, and other church leaders will support a motion being filed by attorneys for Christain relationship counsellor Gary McFarlane calling for a special Court of Appeals panel of five judges who understand religious issues to be appointed to hear McFarlane's appeal and future appeals involving religious rights. At issue in McFarlane's case is a ruling by the Employment Appeal Tribunal that religious discrimination prohibitions were not violated when McFarlane was dismissed by a counselling service for refusing to counsel same-sex couples. (See prior posting.) Critics of the court say that a series of rulings have shown a lack of understanding of Christian beliefs. They point especially to an opinion by Lord Neuberger, the Master of the Rolls, rejecting a complaint by marriage registrar Lillian Ladele who was disciplined when she refused to perform civil partnership ceremonies for same-sex couples. (See prior posting.)

Dutch Supreme Court Tells Christian Political Party To Give Women Leadership Roles

According to AP, Netherlands Supreme Court on Friday rejected religious freedom arguments and ruled that the fundamentalist Christian inspired Political Reformed Party (SGP) must accept women in leadership roles. The court held that the party's policies are in conflict with the 1979 U.N. Convention on the Elimination of All Forms of Discrimination Against Women. SGP has held two or three seats in Parliament since the 1920's and says that its policy stems from Biblical values. After the decision was announced, SGP released its slate of all male candidates for national elections in June. [Thanks to Scott Mange for the lead.]

Minister-Social Worker's Claim Under Title VII Survives Motion To Dismiss

In Moore v. Metropolitan Human Service District, 2010 U.S. Dist. LEXIS 34808 (ED LA, April 7, 2010), a Louisiana federal district court held that an ordained minister employed as a social worker at a state agency that provides services to individuals with addictive disorders stated a plausible religious discrimination claim under Title VII of the 1964 Civil Rights Act. Plaintiff Beulah Moore answered religious questions posed to her by patients. Her employer gave her an ultimatum to stop speaking about God at work, or else resign. The court held:

The Court finds that Metropolitan's argument that its conduct was appropriate because it prohibited Bible-based study at a state facility misses the point. Moore alleges that Metropolitan said she could not mention God at work.... If Moore's allegation is true-and the Court must assume that it is at this stage of the proceedings -a reasonable inference to draw is that Metropolitan prohibited Moore from mentioning God even when she was not speaking with Metropolitan clients. Such an unconditional prohibition could run afoul of Metropolitan's duty to reasonably accommodate Moore's religious beliefs. Moore's direct religious discrimination claim therefore survives Metropolitan's motion to dismiss.

Recent Prisoner Free Exercise Cases

In Abdulhaseeb v. Calbone (10th Cir., April 2, 2010), the 10th Circuit held that a Muslim prisoner adequately demonstrated the existence of a genuine issue of material fact as to whether the denial of halal food, and the denial of halal meat for an Islamic feast, substantially burdened his religious exercise. The 10th Circuit in the case for the first time for its circuit defined "substantial burden" under RLUIPA. Its definition includes requiring or imposing substantial pressure on an individual to engage in, or refrain from, conduct that violates a sincerely held religious belief.

In Nasious v. Grayson, 2010 U.S. Dist. LEXIS 30409 (D CO, March 29, 2010), a Colorado federal district court agreed with a federal magistrate (2010 U.S. Dist. LEXIS 30498, Feb. 17, 2010), that the policy of a detention facility to issue a single eating utensil, a spoon, to each inmate for the inmate to keep did not substantially burden plaintiff's religious exercise. Plaintiff claimed that his Jewish faith required that his kosher meals be eaten with disposable eating utensils.

In Goodson v. Maggi, 2010 U.S. Dist. LEXIS 30058 (WD PA, March 1, 2010), in an opinion largely focusing on other issues, a federal magistrate judge held that plaintiff, an inmate, had failed to allege how his inability to access a spiritual advisor and attend church services created a substantial burden or substantially impacted his ability to exercise a central tenet of his religion. However he was given an opportunity to amend his complaint.

In Blumenthal v. Armstrong, 2010 U.S. Dist. LEXIS 30050 (WD MI, March 29, 2010), a Michigan federal district court adopted recommendations of a magistrate (2010 U.S. Dist LEXIS 20174, Feb. 10, 2010), and upheld a prison's decision to remove an inmate from receiving a kosher diet based on his lack of adherence to Jewish religious practices and his purchasing of non-kosher items from the prison's store.

In Massenburg v. Adams, 2010 U.S. Dist. LEXIS 31226 (ED VA, March 31, 2010), a Virginia federal magistrate judge denied both defendants' motion to dismiss and plaintiff's motion for summary judgment in a damage action in which plaintiff, a member of the House of Israel, complained that he was given a job assignment that required him to work on his Sabbath.

In Pouncil v. Tilton, 2010 U.S. Dist. LEXIS 31094 (ED CA, March 31, 2010), a California federal district court held that a Muslim prisoner serving a life sentence properly stated a claim under RLUIPA in his challenge to a rule that prohibited him, in violation of his Muslim faith, from having conjugal visits with his wife.

In Barendt v. Gibbons, 2010 U.S. Dist. LEXIS 31004 (D NV, March 30, 2010), a Nevada federal district court adopted a magistrate's recommendation (2010 U.S. Dist. LEXIS 31011, Feb. 11, 2010), holding that plaintiff failed to demonstrate a substantial burden on his free exercise of religion under RLUIPA. Plaintiff who is Jewish claimed that the nightly count of inmates took place at the time of pre-Shabbat candle lighting, barring the ability to hold a group ceremony until later.

In Leonard v. Louisiana, 2010 U.S. Dist. LEXIS 31892 (WD LA, March 31, 2010), a Louisiana federal district court held that defendant's free exercise rights and his rights under RLUIPA were infringed by a prison's refusal to permit him to receive Nation of Islam's newspaper The Final Call solely because each issue contains "The Muslim Program" written by Elijah Muhammad.

In Strutton v. Meade, 2010 U.S. Dist. LEXIS 31944 (ED MO, March 31, 2010), a Missouri federal district court rejected complaints by an inmate being held indefinitely under the state's violent sexual predator law that a second Wiccan religious service each week was not permitted because there was no volunteer leader. It also rejected on pleading grounds his complaint that at one time he was not permitted to make Wiccan objects in Arts and Crafts class. Finally it rejected his claim that pressure from fellow-inmates at one AA meeting to recite the serenity prayer amounted to an Establishment Clause violation.

Mintun v. Peterson, 2010 U.S. Dist. LEXIS 31598 (D ID, March 30, 2010), involves a claim by a gay inmate that he was prevented from participating in the inmate-run choir or Christian Fellowship services because of beliefs of fellow inmates that homosexuality is a sin. An Idaho federal district court denied defendants' motion for summary judgment on plaintiff's free exercise and RLUIPA claims for lack of evidence. The court rejected plaintiff's retaliation and equal protection claims.

In Levy v. Holinka, 2010 U.S. Dist. LEXIS 31743 (WD WI, Marach 30, 2010), a Wisconsin federal district court rejected RFRA, free exercise and establishment clause claims of a Hebrew Israelite prisoner who complained that he was not permitted to wear a turban.

Saturday, April 10, 2010

Unique Arrangement For Catholic Schools Converted To Charter Schools

In Indianapolis, Indiana last Monday, officials approved the conversion of two Catholic elementary schools into taxpayer-supported charter schools. According to today's Louisville (KY) Courier-Journal, unlike similar conversions in New York City and Washington, D.C. (see prior postings 1, 2) where the charter schools were then operated by secular organizations, in Indianapolis they will be operated by ADI Charter Schools, Inc., a non-profit group organized by the Catholic archdiocese. The schools will end religious education classes during the school day and will remove or cover religious symbols and displays. They will teach a secular version of the character education program already in use. Bookkeeping for state funds will be done off-site.

11th Circuit: Ministerial Exception Doctrine Applies To Suits Under Section 1981

In McCants v. Alabama-West Florida Conference of the United Methodist Church, Inc., (11th Cir., April 5, 2010), the 11th Circuit dismissed a suit brought by an African-American former pastor of the United Methodist Church against his former church employer. The lawsuit, brought under 42 USC Sec. 1981, charged racial discrimination and retaliation in preventing him from being reappointed pastor of two congregations. The court held that the Free Exercise and Establishment Clauses require the "ministerial exception" doctrine to extend to suits under Section 1981, as well as to Title VII lawsuits.

5th Circuit Hears Oral Arguments In Religious Candy Cane Lawsuit

On Wednesday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Moran v. Plano Independent School District. (Audio recording of oral arguments.) Last December, the 5th Circuit remanded to the district court the question of whether school rules in effect prior to 2005 that restricted the distribution of materials by students were constitutional. The rules were challenged after they were applied to bar a students from distributing religious themed candy cane pens. While new rules adopted in 2005 were upheld, the question of nominal damages against school officials for enforcing the old rules remained open. (See prior posting.) The district court on remand ruled against school officials. As reported by the Dallas Morning News, the appeal argued Wednesday focused on the question of whether the school principals involved had qualified immunity for their conduct. This turns on whether constitutional rules regarding the free speech rights of elementary school students to distribute non-curricular materials were "clearly established." During oral arguments, both sides avoided answering a question from Judge Catharina Hayes, who asked: "Why does Plano seem to have so many issues?" Liberty Institute, which represents the students in the case, issued a press release on the oral arguments.

Friday, April 09, 2010

Ecclesiastical Abstention Applies To Both Congregational and Hierarchical Churches

In Ad Hoc Committee of Parishioners of Our Lady of the Son Catholic Church, Inc. v. Reiss, (AZ App., Feb. 23, 2010), an Arizona appellate court held that the ecclesiastical abstention doctrine applies to congregational churches in the same way that it applies to hierarchical ones. The court dismissed claims that Father Paul Andrade was improperly appointed as priest and Board Member of the separate Tridentine congregation because he was not validly ordained before 1968, as required by the church's articles.. It also dismissed a second claim that the Board improperly removed Father Andrade, holding that his firing was a purely ecclesiastical matter. Finally it dismissed a dispute among factions in the church over use of church funds.

Justice Stevens Announces Retirement

The Washington Post reports that today U.S. Supreme Court Justice John Paul Stevens notified President Obama that he will retire one day after the end of the current Supreme Court term. (Full text of Stevens resignation letter.) Justice Stevens religion clause jurisprudence is reviewed in the following articles: Eduardo M. Penalever, Treating Religion as Speech: The Religion Clause Jurisprudence of Justice Stevens (SSRN, November 2005); Christopher L. Eisgruber, Justice Stevens, Religious Freedom, and the Value of Equal Membership, 74 Fordham L. Rev. 2177 (2006); Robert F. Nagel, Justice Stevens' Religion Problem, (June/July 2003 First Things).

New Jersey Supreme Court Defines Cleric-Penitent Privilege

In a decision handed down Wednesday, the New Jersey Supreme Court, for the first time since N.J.S.A. 2A:84A-23 was amended in 1994, defined the scope of the cleric-penitent privilege. In State of New Jersey v. J.G., (NJ Sup. Ct., April 7, 2010), in a 6-1 decision, the court held that:

the cleric-penitent privilege applies when, under the totality of the circumstances, an objectively reasonable penitent would believe that a communication was secret, that is, made in confidence to a cleric in the cleric's professional character or role as a spiritual advisor.

At issue in the case is a conversation between a defendant accused of sexually abusing his daughters and a pastor that defendant had known for over thirty years. The state argued that the pastor was not acting as a spiritual advisor, but was acting to protect defendant's children. The court reversed and remanded the case since it was unclear whether the trial court had applied an objective reasonableness standard.

Justice Rivera-Soto dissented, arguing that the majority has "secularized" the privilege, based on an "unexpressed but nevertheless palpable fear of entangling itself in religious controversy." He urged a different standard: "in order for the cleric-penitent privilege to make sense, the question of whether the communication was made 'in confidence' must be informed and governed by the fundamental tenets and practices of the religious belief represented by the cleric and espoused by the penitent." He also objected that the parties had not been given an opportunity to develop their evidence in light of the new standard announced by the majority.

Anti-Abortion Tax Protester Sent To Jail In Canada

In Canada, a judge in Fredericton, New Brunswick has ordered anti-abortion tax protester, David Little, to jail for 66 days for refusing to pay $3000 in fines imposed when he was convicted of failing to file tax returns. According to yesterday's Winnipeg Free Press, Little, a 66-year old Roman Catholic, says he will never file a tax return so long as there is tax-funded abortion in Canada. He now faces a new charge for failing to follow a judge's order to file the past delinquent returns.

Priest's Suit Against Bishop Dismissed On Church Autonomy Grounds

A Nevada trial court has dismissed on church autonomy grounds a lawsuit brought by Rev. Richard DeMolen, a Catholic priest, against the Diocese of Reno and Bishop Randolph Calvo. The priest claimed that Bishop Calvo defamed him in a letter sent to parishioners. However the court said that the letter was part of the church's internal decision-making process. Fr. DeMolen was fired when he sought a court protective order after receiving a death threat he believed was from someone in the parish. According to yesterday's Reno Gazette Journal, the court held that the First Amendment precludes it from becoming involved in a contractual dispute between an employee and the religious organization that employs him.

British Nurse Loses In Bid To Wear Cross On Necklace

Earlier this week, an Employment Tribunal in Britain upheld a decision by a hospital banning Christian nurse Shirley Chaplin from wearing a cross on a chain around her neck. According to Wednesday's BBC News, the hospital's dress code bars front-line staff from wearing necklaces because patients might grab them. Chaplin argued that the ban prevents her from expressing her religious beliefs. However the Tribunal found no direct or indirect religious discrimination. Chaplin intends to appeal, saying that Christians feel "quite persecuted" by the decision.

Indian Court Rejects Government Involvement In Islamic Bank

In the Indian state of Kerala, a 2-judge bench of the High Court held that neither the state nor any of its instrumentalities may be involved with the creation of an Islamic banking institution. According to today's Business Standard and The Peninsula, the ruling came in a public interest lawsuit that alleged government involvement in a Shariah-compliant bank would amount to unconstitutional preference for one religion. The Kerala State Industrial Development Corporation (KSIDC) had planned to take a 13% interest in the Islamic bank. However under the ruling, promoters may go ahead and organize the bank without state involvement, so long as the proper procedures are followed and the required permissions obtained.

Claims Against Controversial School Teacher Continue After Summary Judgment Motion Is Denied

In Doe v. Mount Vernon City School District Board of Education, (SD OH, April 6, 2010), an Ohio federal district court ruled on several summary judgment motions in the lawsuit against controversial middle school science teacher John Freshwater by one of his students. The lawsuit alleged violations of the Establishment Clause. Four copies of the Ten Commandments were posted in Freshwater's classroom. He kept his personal Bible on his desk, and a box of Bibles were stored in the back of the classroom for use by the school's Fellowship of Christian Athletes. Freshwater was the faculty advisor to FCA. The student also alleged a battery growing out of an experiment with a Tesla coil which allegedly left a mark on his arm in the shape of a Christian cross. The court denied plaintiff summary judgment on these claims, finding there were genuine issues of fact as to whether the Establishment Clause was violated and as to whether the Tesla coil experiment constituted a battery. However the court dismissed Freshwater's counterclaims for defamation and intentional infliction of emotional distress. Yesterday's Mt. Vernon (OH) News reported on the decision. (See prior related posting.)

Federal Lawsuit Challenges Capital Appropriations To Religious Organizations

Chicago activist Rob Sherman has taken another step in his campaign to challenge the state legislative appropriations to houses of worship, parochial schools and religious institutions that were placed in last year's Illinois capital budget. (See prior posting.) On Wednesday he filed a federal lawsuit against the governor and two other state officials seeking to enjoin disbursement of appropriations to 155 groups, or to force recoupment of any funds already distributed. The lawsuit also raises questions about 20 other grants. The complaint (full text) in Sherman v. Quinn, (CD IL, April 7, 2010), alleges that these appropriations violate the federal Establishment Clause. It also alleges that they violate provisions of the Illinois Constitution that require public funds to be used only for public purposes (Art. VIII, Sec. 1), that prohibit forcing any person to support a place of worship (Art. I, Sec. 3), and bar appropriations in aid of any church or for sectarian purposes (Art. X, Sec. 3).

Thursday, April 08, 2010

First Shariah-Compliant Space Satellite Insurance Policy Is Written

Yahsat, a satellite communications company owned by the government of Abu Dhabi, has broken new ground by purchasing a Shariah-compliant insurance policy as part of the insurance package on the two satellites it plans to launch in 2011. Space News reported yesterday that the policy supplements two larger conventional policies previously acquired. The new Shariah-compliant policy written by Abu Dhabi-based Methaq Takaful Insurance Co. was reviewed by a Shariah supervisory board to assure that it complies with Islamic law. The board also examined the intended use and customers of the satellites. The policy is seen as a prototype for future space insurance coverage in the Middle East and elsewhere in the Muslim world.

Possibility In Offing of Supreme Court Without Protestant Justices

NPR yesterday reported that with the anticipated retirement this year of U.S. Supreme Court Justice John Paul Stevens, the country for the first time may have a Supreme Court with no Protestant Justices. The two leading candidates to replace Stevens-- U.S. Solicitor General Elena Kagan and D.C. Circuit Judge Merrick Garland-- are both Jewish. If one of them is ultimately confirmed, the Court would have 6 Catholic and 3 Jewish justices.

Kenyan Religious Leaders Oppose New Draft Constitution

In Kenya, Cardinal John Njue of Nairobi, chairman of the Kenyan bishops' conference, and Rev. Peter Karanja , general secretary of the National Council of Churches say they will mobilize Christians to vote against Kenya's new draft constitution in the June referendum on it. Catholic News Service yesterday reported that the religious leaders object to the fact that the constitution would legalize abortion and would keep in place Islamic courts. However other religious leaders-- an Anglican archbishop and a priest known for his human rights work -- support the new constitution.

UPDATE: The Standard reported Thursday that church leaders are softening their opposition to the proposed constitution after a meeting with President Kibaki and Prime Minister Raila Odiga.
Church leaders and the President agreed to set up a committee to dialogue on controversial issues surrounding the proposed new constitution.

Vaccination Objection Held To Be Sincere, But Not Religious

In Caviezel v. Great Neck Public Schools, (ED NY, April 5, 2010), a New York federal district court refused to grant a preliminary injunction to force the Great Neck school system to grant plaintiffs an exemption from the requirement their child be vaccinated in order to enroll. The New York Public Health Law provides an exemption for children whose parents hold genuine and sincere religious beliefs against vaccination. The court concluded that while plaintiffs genuinely and sincerely oppose vaccination for their child, their objections are not "religious" in nature. Part of plaintiff's reasons involve safety concerns. Her other reasons are closer to a secular philosophy. She believes the human body is a perfect creation and we do not need to inject vaccines into it. Yesterday's New York Law Journal reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Ministerial Exception Precludes Wage and Hour Suit Against Scientology

In Headley v. Church of Scientology International, (CD CA, April 2, 2010), a California federal district court dismissed a claim by a Church of Scientology staff member that the Church violated state and federal labor laws. The court said:

Here, even if Plaintiff could establish the alleged federal and state labor law violations, there is no dispute that she: (1) was employed by a religious institution; (2) was chosen for her position based largely on religious criteria; and (3) performed religious duties and responsibilities. She worked for ... institutions within the Church of Scientology. She also was able to hold the positions she had with Defendants based largely on religious criteria, namely her commitment to 1,000,000,000 years of service to Scientology and the lifestyle constraints that come with being a member of the Sea Org.... Finally ... she performed various religious duties and responsibilities, most notably "auditing" and "cramming." For these reasons ... the ministerial exception would apply. Thus, her first cause of action fails.

According to AP's report on the decision, plaintiff alleged that she worked 100-hour weeks at almost no pay as part of Scientology's elite Sea Organization. (See prior related posting.) The Church of Scientology issued a press release on the decision.

Wednesday, April 07, 2010

Morocco Expels 50 Christians; US Government and Religious Group Protest

Morocco last month expelled around 50 Christians accused of proselytizing Muslims in violation of Moroccan law. (Moroccan authorities say the number was 27.) UAE's The National today reports that the expulsions include 16 staffers at the Village of Hope who were accused of using foster care as a cover for converting Moroccan children to Christianity. The Minneapolis Star Tribune yesterday reported that the expulsions targeted other foreign-run orphanages as well. The issue seems to be informal influence on the children by the Christian foster families, even though the children are formally taught the Qur'an in schools operated by the orphanages.

U.S. Ambassador to Morocco, Sam Kaplan, has urged that the aid workers be given due process rights. Kaplan is one of the few Jewish diplomats representing the U.S. in Arab countries. Morocco has a long tradition of tolerance of Jews and Christians, but the evangelical community sees the expulsions as a political gesture to Islamic fundamentalists. Nationals of Britain, Netherlands and South Korea were also expelled. Politicians and the media in the Netherlands also protested strongly. (Morocco Board News Service 3/10). [Correction.] Meanwhile, leaders of the Evangelical Church Alliance International met with the Ambassador of Morocco at the Moroccan Embassy in Washington, D.C. An Alliance press release reports they urged Morocco to adopt a clear definition of "proselytizing" to guide foreign Christians. It concludes that: "It was the consensus of the Evangelical leaders present that the Moroccan government understands our concerns and also wishes to strengthen the bonds of friendship that exist between us and to seek new and productive ways to keep the established bridges intact."

Australian Police Stop Crucifixion Reenactment As Offensive

Last Saturday, police in the Australian town of Geelong, Victoria, stopped a graphic depiction of Jesus' crucifixion being enacted in a busy shopping area. Police say the semi-nude Jesus covered with fake blood violated laws prohibiting offensive behavior in public. The Herald Sun and The Australian report that police stopped the performance 40 minutes into the one hour pageant after it apparently distressed young children watching. Church leaders plan to complain to Victoria's police chief about their treatment. Police reportedly later conceded the group was not technically breaking any law.

Blogger States Free Speech and Establishment Clause Claims

In Rich v. City of Jacksonville, (MD FL, March 31, 2010), a Florida federal district court refused to dismiss claims by a blogger in a lawsuit against a police officer and an assistant state attorney. Tom Rich began an anonymous blog on which he raised concerns about the pastor of First Baptist Church in Jacksonville. Police officer Robert Hinson, who was also on the pastor's security detail, opened an investigation in order to be able to subpoena Google and Comcast to discover the owner of the blog. Hinson obtained subpoenas from defendant Stephen Siegel in the Office of the State Attorney. After Hinson or Siegel told church officials that the blogger was Tom Rich, the church issued trespass warnings against Rich and his wife, barring them from church premises. (See prior posting.) The court concluded that, if proven, the allegations would support a finding that plaintiff's right to anonymous speech was infringed, and that the Establishment Clause was violated because defendants had no secular purpose for their actions. The court however dismissed another portion of the complaint on 11th Amendment grounds-- a damage claim against the state attorney in her official capacity. Yesterday's Florida Times-Union reported on the decision.

Complaint Filed Over Local Official's Washing of Government Employees' Feet

In St. Bernard Parish, Louisiana, the ACLU has sent a letter to Parish President Craig Taffaro complaining about the official's decision on the Thursday before Easter to wash the feet of Parish employees. WSDU News reported yesterday that Taffaro says he did not see the practice as a religious act, but as an act of public service. Taffaro also says that no employee was coerced into participating. The ACLU's letter argues that Taffaro is imposing his religion on government employees. Foot washing is practiced by certain Christian denominations based on words of Jesus in John 13: 14-17. (Background.)

Tuesday, April 06, 2010

Man Arrested After Suit Claims Religious Entitlement To Use Force At Abortion Clinic

In Plano, Texas, the FBI has arrested Erlyndon Joseph ''Joey'' Lo on charges of using interstate commerce to communicate a threat and threatening force to intimidate clients and employees of a reproductive health service. New York Times reported yesterday that the charges grew out of a class action lawsuit filed by the 27-year old Lo in Plano, Texas in which he threatened to use deadly force to stop an abortion at a named clinic in Dallas if the U.S. Supreme Court did not act immediately to stop abortion. He alleged:

My religious beliefs include the beliefs that an individual is alive at the moment of conception, abortion is murder and is the worst murder of all murders possible because these babies are completely defenseless, and I am entitled under my religious beliefs to use deadly force if necessary to save the innocent life of another.

The lawsuit was brought against the Supreme Court an asked for $999 trillion in damages. [Thanks to Scott Mange for the lead.]

Court Enjoins Military Base Rule That Bars Anti-Islamic Decals On Vehicles

In Nieto v. Flatau, (ED NC, March 31, 2010), a North Carolina federal district court enjoined officials at Camp Lejeune (NC) from enforcing a Base regulation prohibiting the display of extremist, indecent or racist messages on vehicles. Plaintiff was ordered to remove several anti-Islamic decals from his vehicle. The court concluded that the military base is a non-public forum. However it found that that the regulation was not applied in a viewpoint-neutral manner since pro-Islamic decals would be allowed. AP reported on the decision last week. (See prior related posting.) [Thanks to First Amendment Center via Charlotte E. Hunter for the lead.]

President Obama Hosts Easter Prayer Breakfast

The White House this morning hosted Christian leaders from across the country at an Easter Prayer Breakfast. In remarks delivered in the East Room (full text), the President said in part:

One of my hopes upon taking this office was to make the White House a place where all people would feel welcome. To that end, we held a Seder here to mark the first Passover. We held an Iftar here with Muslim Americans to break the daily fast during Ramadan. And today, I’m particularly blessed to welcome you, my brothers and sisters in Christ, for this Easter breakfast....

I can’t tell any of you anything about Easter that you don’t already know. (Laughter.) .... But what I can do is tell you what draws me to this holy day and what lesson I take from Christ’s sacrifice and what inspires me about the story of the resurrection.

For even after the passage of 2,000 years, we can still picture the moment in our mind's eye. The young man from Nazareth marched through Jerusalem; object of scorn and derision and abuse and torture by an empire. The agony of crucifixion amid the cries of thieves. The discovery, just three days later, that would forever alter our world -- that the Son of Man was not to be found in His tomb and that Jesus Christ had risen. We are awed by the grace He showed even to those who would have killed Him. We are thankful for the sacrifice He gave for the sins of humanity. And we glory in the promise of redemption in the resurrection.

And such a promise is one of life’s great blessings, because, as I am continually learning, we are, each of us, imperfect. Each of us errs -- by accident or by design. Each of us falls short of how we ought to live. And selfishness and pride are vices that afflict us all.

Supreme Court Refuses Review In Alleged Anti-Muslim Bias of Juror

Yesterday the U.S. Supreme Court denied certiorari in Al-Turki v. Colorado (Docket No. 09-700) (Order List.) In the case, Colorado state courts refused to exclude or allow closer questioning in voir dire of a potential juror who said he might be prejudiced against Muslims. The man was seated on the jury in a trial that included anti-Muslim themes and comments. Yesterday's Christian Science Monitor and Scotus Blog both discuss the case in which the government of Saudi Arabia filed an amicus brief urging the court to grant review.

Sunday, April 04, 2010

Recent Prisoner Free Exercise Cases

In Howard v. Skolnik, (9th Cir., March 30, 2010), the 9th Circuit rejected a prisoner's free exercise claim based on two alleged incidents of interference with his fasting. However the court vacated summary judgment and remanded for further proceedings plaintiff's objection to the calcelling of Nation of Islam prayer services.

In Jones v. Bullard, 2010 U.S. Dist. LEXIS 27377 (ED MO, March 23, 2010), a Missouri federal magistrate judge concluded that a detainee's free exercise rights were not substantially burdened when he was at various times inadvertently offered a food tray containing pork, but was given an alternative when he objected.

In Guarneri v. Hazzard, 2010 U.S. Dist. LEXIS 26966 (ND NY, March 22, 2010), a New York federal district court held that an inmate's free exercise rights were not substantially burdened by refusal to provide him with a Catholic priest.

In Black v. Fischer, 2010 U.S. Dist LEXIS 27439 (ND NY, March 23, 2010), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 27356, Feb. 4, 2010) and held that defendants were entitled to qualified immunity in a damage action in which a former prisoner complained that his attempt to change religious designation while in prison was denied under a Department of Corrections policy that allowed inmates to change their religion only once every 12 months.

In Malik v. Ozmint, 2010 U.S. Dist. LEXIS 26397 (D SC, March 19, 2010), a South Carolina federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 26385, Feb. 16, 2010) and dismissed a claim by a Sunni Muslim prisoner that his rights under RLUIPA were violated by prison grooming polices that required him to wear short hear and be clean shaven.

In Ingram v. Hyland, 2010 U.S. Dist. LEXIS 25964 (ED WI, Feb. 26, 2010), a Wisconsin federal district court held that an inmate arguably states a free exercise and RLUIPA claim in objecting to an order that he and his wife (a criminal co-defendant) have no contact. Plaintiff argued that denial of contact for the reconciliation of marriage violates his religious beliefs.

In Greenup v. Gusman, 2010 U.S. Dist. LEXIS 29180 (ED LA, March 26, 2010), a Louisiana federal magistrate judge held that various of plaintiff's claims that his Islamic faith was not being accommodated were moot. His claim for mental anguish was barred by a federal statutory provision barring a prisoner from recovering damages for emotional injury unaccompanied by physical injury.

In Green v. Harry, 2010 U.S. Dist. LEXIS 30127 (WD MI, March 29, 2010), a Michigan federal district judge adopted the recommendation of a federal magistrate (2010 U.S. Dist. LEXIS 29767, Jan. 26, 2010) and rejected a Muslim plaintiff's complaints about non-pork items being placed next to pork items.

Unusual Free Exercise Assertion In FOIA Case Rejected

In Banks v. Department of Justice, (D DC, March 26, 2010), the D.C. federal district court found unpersuasive an unusual argument in a Freedom of Information Act case. Plaintiff, seeking various records about himself and others argued that "his religion, Thelema, mandates that he access the records to purge all the negative energy from his life in a religious ritual." Plaintiff, a Lakota Sioux Native American, sought the information from the U.S. Postal Inspection Service and the Federal Bureau of Prisons.

Muslim Tourists Scuffle With Police After Attempt To Pray In Former Mosque, Now A Cathedral

In Cordoba, Spain last Wednesday, security guards and police scuffled with a group of Muslim tourists from Austria who were visiting the Roman Catholic Mezquita Catedral-- a UNESCO World Heritage site. According to AP, the Great Mosque of Cordoba was built after the Moorish invasion of Spain in the 8th century, and the building was turned into a Catholic cathedral in 1236 when King Ferdinand captured Cordoba. Six or seven of the 120 Muslim tourists who entered the church began to pray. Security guards told them to stop, an argument ensued, and the National Police were called. Two of those praying got into a shoving match with officers and were arrested for disobeying and threatening law enforcement officers.

Saturday, April 03, 2010

Church As Murder Location Amounts to Aggravating Circumstance In Sentencing

On Thursday, a Kansas judge sentenced Scott Roeder, convicted killer of abortion doctor George Tiller, to life in prison with no possibility of parole for 50 years. Yesterday's Topeka Capital-Journal points out that in imposing sentence, the judge concluded that the fact the murder was committed in a church was an aggravating circumstance. Kansas law lists as an aggravating circumstance the fact that "defendant committed the crime in an especially heinous, atrocious or cruel manner." Judge Warren Wilbert said that a church is supposed to be a place of peace and tranquility. During sentencing, defendant Roeder responded that he didn't consider the building a church because its congregants did not hold Tiller accountable for performing abortions. He called it a "synagogue of Satan." (See prior related posting.)

Court Finds That Church Trustee Breached Duty In Conveying Property

In Garmon v. Reynolds, (IN App., March 31, 2010), an Indiana appellate court resolved a dispute over whether the son of the founding pastor of the Zion Temple Apostolic Church validly conveyed certain parcels of church property to a privately held trust. The appellate court agreed with the trial court that while Kenneth Garmon is the sole surviving trustee of Church, he breached his fiduciary duty when he voluntarily left Church to attend a different church for nearly a year after his father's death, and attempted to convey the disputed property to a privately-held trust corporation over which the congregation would have no control. The court also rejected the claim that the First Amendment precluded it from asserting jurisdiction. In its view, the case did not concern extensive ecclesiastical matters or require interpretation of church doctrines.

Catholic High School Fails To Show Substantial Free Exercise Burden From Zoning Denial

Academy of Our Lady of Peace v. City of San Diego, 2010 U.S. Dist. LEXIS 31873 (SD CA, April 1, 2010), is a RLUIPA and a 1st and 14th Amendment challenge by a Catholic college-preparatory high school to San Diego's refusal to issue zoning permits so the school can add a classroom building and parking structure to its campus. A California federal district court refused to grant summary judgment to the school, holding that it had failed to come forward with evidence that a substantial burden had been placed on its religious exercise.

President Obama Marks Easter and Passover

President Obama's Weekly Address today (full text and video recording) focused on Passover and Easter. He said in part:

This is a week of faithful celebration. On Monday and Tuesday nights, Jewish families and friends in the United States and around the world gathered for a Seder to commemorate the Exodus from Egypt and the triumph of hope and perseverance over injustice and oppression. On Sunday, my family will join other Christians all over the world in marking the resurrection of Jesus Christ.

And while we worship in different ways, we also remember the shared spirit of humanity that inhabits us all – Jews and Christians, Muslims and Hindus, believers and nonbelievers alike.

Amid the storm of public debate, with our 24/7 media cycle, in a town like Washington that’s consumed with the day-to-day, it can sometimes be easy to lose sight of the eternal. So, on this Easter weekend, let us hold fast to those aspirations we hold in common as brothers and sisters, as members of the same family – the family of man.

On Thursday night, Obama hosted a Seder dinner in the Old Family Dining Room of the White House for some friends, White House employees, and their families. In an article last month, the New York Times traced the background of this event which began with an improvised Seder in April 2008 during the Presidential campaign.

The Obama family will join a D.C. congregation for Easter services tomorrow, according to the Washington Post. However the White House has not disclosed the identity of the church in an attempt to not attract onlookers who would disturb the services.

UPDATE: The D.C. congregation at which the Obama's worshiped for Easter was Allen Chapel AME Church in Southeast Washington. (Afro, 4/5).

Friday, April 02, 2010

Annual White House Easter Egg Roll Will Add Healthful Events

This year's annual White House Easter Egg Roll will be held Monday, April 5. BWW reports today that the event will build on the First Lady's campaign against childhood obesity. In addition to the traditional Easter egg hunt and roll, the event will feature sports zones, activities built around the White House kitchen garden, and an instructional dance center. Music acts and story time readers will have their performances broadcast live on the Internet.

Malaysian Court's Caning Sentence Commuted By Sultan, Over Objections of Muslim Lawyers' Group

In a widely publicized decision last year, a Shariah court in Malaysia imposed a sentence of caning on Kartika Sari Dewi Shukarno who was found drinking beer at a hotel bar. (See prior posting 1, 2.) Today's Malaysian Insider reports that the sentence has now been commuted by the Sultan of Pahang, who is also head of Islam in the Malaysian state. He ordered her to instead perform 3 weeks community service at a children's home. However the Malaysian Muslim Lawyer's Association is disputing the commutation, saying that it may not be in accordance with Islamic law.

8th Circuit Holds Temp Agency Could Enforce No-Headwear Rule of Employer

In EEOC v. Kelly Services, Inc., (8th Cir., March 25, 2010), the 8th Circuit rejected charges that Kelly, a temp agency, discriminated against Asthma Suliman, a Muslim woman, when it refused to refer her to a job at a printing plant because she insisted on wearing a khimar. The employer, Nathan Printing, prohibited wearing of loose clothing or headwear because of the danger that it could become tangled in printing machinery. According to the court, the EEOC failed to prove that there was an available position at the printing plant to which Kelly could have referred Suliman. Even if there was, Kelly showed a legitimate, non-discriminatory reason for failing to refer Suliman. Title VII does not require that an employment agency being sued for religious discrimination also prove that the employer to which it would be referring a worker would suffer an undue hardship if it were to accommodate the worker's religious needs. [Thanks to Steven H. Sholk for the lead.]

California Supreme Court Rejects Krsihna Challenge To Airport Anti-Solicitation Ordinance

In International Society for Krishna Consciousness of California, Inc. v. City of Los Angeles, (CA Sup. Ct., March 25, 2010), the California Supreme Court concluded that a city ordinance prohibiting individuals from soliciting funds at Los Angeles International Airport is a reasonable time, place and manner restriction that does not violate the California constitution. In so holding, the majority also refused to answer a question referred to it by the 9th Circuit-- whether the airport is a public forum. (See prior posting.) The long-running case involves activity by Krishna adherents to practice sankirtan-- approaching people in public to proselytize, solicit donations, sell and distribute literature and disseminate information. Two concurring opinions reached the public forum issue, but came out on opposite sides of it.

EEOC Sues Lowes For Failing To Accommodate Sunday Sabbath Observer

The EEOC announced earlier this week that it has filed suit against Lowe's Home Centers alleging that Lowe's failed to accommodate the needs of a Baptist employee who had religious objections to working on Sundays. The suit seeks to have the employee (now on part-time status) reinstated as a full time employee with accommodations for his religious beliefs. It also asks for back pay and damages, and an injunction requiring Lowe's to provide reasonable accommodation for sincerely held religious beliefs.

Claim By Hasidic Jews That Challenge To Zoning Was Pretext For Discrimination Is Dismissed

Mosdos Chofets Chaim, Inc. v. Village of Wesley Hills, (SD NY, March 31, 2010), is the latest in a series of legal maneuvers involving tension between several New York villages and the Orthodox and Hasidic Jewish families moving in increasing numbers to Ramapo (NY) and areas around it in Rockland County. In prior cases, plaintiffs claimed that discriminatory zoning by villages were an attempt to exclude Orthodox and Hasidic Jews. This suit grows out of an alleged attempt by several nearby villages to block a proposed revision in Ramapo's zoning law that was designed to accommodate the need of the Orthodox and Hasidic community.

In 2004, four villages and two Ramapo residents filed a lawsuit (the Chestnut Ridge action) challenging on environmental grounds Ramapo's zoning changes. In the current lawsuit, Orthodox and Hasidic plaintiffs claim that the filing of the Chestnut Ridge action was in fact an attempt to use intimidation to prevent the spread of the Orthodox and Hasidic communities. The court concluded that the Noerr-Pennington doctrine and the First Amendment right to petition bar plaintiffs from maintaining a civil rights action against defendants when defendants merely petitioned the courts. However the lawsuit was dismissed without prejudice giving plaintiffs an opportunity to refile to seek to defeat defendants' qualified immunity.

Gospel Tracts In Form of $1M Bills Do Not Violate Counterfeiting Laws

Darrel Rundus' Great News Network is a Christian evangelizing organization. Its most successful Gospel tract is one made to look like U.S. currency in the form of a $1 million dollar bill (a denomination of currency not issued by the United States). On the reverse of the bill is an inscription that includes: "The million dollar question. Will you go to heaven!" In Rundus v. United States, (ND TX, March 30, 2010), a Texas federal district court held that the Gospel tract does not violate U.S. counterfeiting laws (18 USC 474 and 475) because it neither poses a risk of fraud nor does it pose a risk of facilitating would-be counterfeiters. The court went on to hold that Secret Service agents violated the 4th Amendment in 2006 by seizing the million dollar bills from GNN's offices without a warrant or valid consent. It ordered return of the seized property. Liberty Counsel yesterday issued a press release announcing the decision. (See prior related posting.)

Christian Counseling Student's Discrimination Claim Survives Motions To Dismiss

In Ward v. Members of the Board of Control of Eastern Michigan University, 2010 U.S. Dist. LEXIS 27861 (ED MI, March 24, 2010), a Michigan federal district court denied defendants' motions to dismiss a lawsuit brought by a graduate student in Eastern Michigan University's counseling program who was dismissed from the program after, in a Practicum, she refused to counsel a client on a homosexual relationship. The lawsuit alleges that plaintiff's expression and free exercise rights, as well as her due process and equal protection rights, were infringed because of disagreement with her Christian beliefs regarding homosexuality.

Thursday, April 01, 2010

Israel's Supreme Court Says Muslim Prisoners Not Entitled To Bread During Passover

According to YNet News, last week a 3-judge panel of Israel's Supreme Court ruled that the government is not obligated to serve Muslim prison inmates fresh bread during Passover. In a 2-1 decision, the court ruled that for both practical and religious reasons, serving of leavened products in prison facilities where both Jewish and Arab prisoners live together is not required during Passover. In facilities housing only Arab prisoners, inmates are furnished leavened products ahead of Passover which they can use all week. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Cert. Filed In School's Ban of Religious Music In Holiday Concerts

On Monday, a petition for certiorari (full text) was filed in Stratechuck v. Board of Education, South Orange- Maplewood School District. In the case, the U.S. 3rd Circuit Court of Appeals upheld a New Jersey school district's policy banning celebratory religious holiday music at school-sponsored holiday concerts. (See prior posting.) A press release on the filing was issued by the Thomas More Law Center.

Lawsuit Challenges Health Care Bill on Free Exercise Grounds

Last week, moments after President Obama signed the health care reform bill, the Thomas More Law Center filed suit on behalf of itself and four individuals challenging the constitutionality of the new law on a number of grounds including a claim that it violates plaintiffs' free exercise rights. (Press release.) The complaint (full text) in Thomas More Law Center v. Obama, (ED MI, filed 3/23/2010) alleges in part that plaintiffs are:

being forced to contribute to the funding of abortion, which, according to their deeply held religious beliefs and convictions, is a grave moral disorder since it is the deliberate killing of an innocent human being....

According to the teaching of the Catholic Church, abortion is a crime which no
human law can legitimize. Consequently, there is no obligation in conscience to obey such a law; instead, there is a grave and clear obligation to oppose such laws by conscientious objection.

Catholic Church Challenges Baltimore Ordinance Regulating Pregnancy Counseling Centers

According to the Baltimore (MD) Sun, the Archdiocese of Baltimore has filed a federal lawsuit challenging the constitutionality of a Baltimore ordinance that requires pregnancy counseling centers to post signs (in English and Spanish) informing clients that they do not refer women for abortion or birth control. Proponents of the law say it assures that women have accurate health information. The lawsuit claims that the law violates First Amendment expression and religion rights of church members.

NY High Court: Hate Crime Law Can Apply To Property Offenses

In People v. Assi, (NY Ct. App., March 30, 2010), New York's high court held that New York's Hate Crimes Act of 2000 can cover religiously-motivated property crimes, as well as crimes against persons. Defendant in the case admitted to attempting to fire bomb a synagogue to protest the shooting of a Palestinian child by the Israeli Army. Today's Riverdale Press reports on the decision.

Subsidized Housing Project Attacked on Establishment Clause Grounds

The Washington Post last week reported that opposition to a government subsidized affordable housing project in Arlington County, Virginia has turned into a church-state argument. To find space for housing near the suburban D.C Metro station, the county will pay subsidies to a developer who will build apartments over the First Baptist Church of Clarendon. A non-profit group bought air rights over the church last year. A new sanctuary will also be constructed, and the church and housing project will share an entrance, lobby and elevator. Opponents argue that the subsidies are really a way to bail out a church that is in financial difficulty. A federal district court will hear arguments tomorrow on a motion to dismiss the complaint that alleges Establishment Clause violations. [Thanks to Robert Tuttle for the lead.]

Taxpayers Have Standing To Challenge TVPA Grant To Catholic Bishops

In ACLU of Massachusetts v. Sebelius, (D MA, March 22, 2010), a Massachusetts federal district court held that taxpayers have standing to challenge a grant to the U.S. Conference of Catholic Bishops under the Trafficking Victims Protection Act. USCCP made grants to subcontractors, and specified in all of them that no referrals could be made for abortion services of contraceptive materials. In finding standing, the court said:

The issue is by no means open and shut, but the court is of the view that the ACLU has met its burden under Flast of showing a link between the congressional power to tax and spend and a possible violation of the Establishment Clause in the grant of public funds to the USCCB....

In closing, I do not pretend that Hein offers clear direction to lower courts as to how to draw the line between just enough congressional involvement to confer taxpayer standing and too little so as to deny it. I further recognize that the distinction between congressional and executive spending propounded in Hein may be unrealistic given the complexities of modern interactions between Congress and the Executive Branch. I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies. I also agree that a rule that has no enforcement mechanism is not a rule at all. Taxpayer standing may not be the best or the most desirable or even a necessary means of enforcing the separation of church and state, but unless the Supreme Court decrees differently, it is one of the principal tools available. The uncertainty of the scope of taxpayer standing necessarily invites decisions lacking in consistency. I have no doubt that many of my colleagues would (and will) in all good faith draw the line differently than have I. But until the Supreme Court gives definitive guidance, judges will have to decide using their best understanding of the law as it exists. That is what I have attempted to do here.

Wednesday, March 31, 2010

10th Circuit: No State RFRA Claim For Objectionable Autopsy

In Ross v. Board of Regents of the University of New Mexico, (10th Cir., March 23, 2010), the 10th Circuit Court of Appeals refused to permit family members to sue under New Mexico’s Religious Freedom Restoration Act challenging an autopsy performed on a San Carlos Apache man that allegedly violate his religious beliefs. The court concluded that decedent did not engage in an "act or refusal to act" that was substantially motivated by religious belief. Thus New Mexico RFRA's protection of free exercise of religion was not implicated. The court also rejected various other challenges to the autopsy

Supreme Court Denies Cert. In Religious Music Case Over Alito Dissent

Last week, the U.S. Supreme Court denied certiorari in Nurre v. Whitehead, (Docket No. 09-671, March 22, 2010). In the case, the U.S. 9th Circuit Court of Appeals, in a 2-1 ruling, held that school officials did not violate a student's free speech rights when they barred her from performing an instrumental version of Ave Maria at her Everett, Washington high school's graduation ceremony. (See prior posting.) Justice Alito filed a rare dissent to the denial of review. He argued:

A reasonable reading of the Ninth Circuit’s decision is that it authorizes school administrators to ban any controversial student expression at any school event attended by parents and others who feel obligated to be present because of the importance of theevent for the participating students. A decision with such potentially broad and troubling implications merits our review.

National Law Journal reported on the cert. denial.

Obama Announces Recess Appointments To EEOC

Last Saturday, the White House announced it intent to make 15 recess appointments to high level government positions. The nominations are currently stalled in the Senate. Four of the 15 are for the Equal Employment Opportunity Commission: Jacqueline A. Berrien for EEOC Chair; Chai R. Feldblum for EEOC Commissioner; Victoria A. Lipnic for EEOC Commissioner; and P. David Lopez for General Counsel of the EEOC. As recess appointees, these individuals will hold office until the end of the Senate's session in 2011. (CRS background.) However their names will remain before the Senate for confirmation for the full terms of their offices. The EEOC enforces federal laws barring discrimination in employment, including the ban on religious discrimination.

Sunday, March 21, 2010

Recent Prisoner Free Exercise Cases

In Clark v. Small, 2010 U.S. Dist. LEXIS 23731 (SD CA, March 15, 2010), a California federal district court permitted an inmate to proceed with his claim that he was not permitted to celebrate Ramadan, but dismissed his equal protection and due process challenges.

In Hartmann v. California Department of Corrections and Rehabilitation, 2010 U.S. Dist. LEXIS 23848 (ED CA, March 15, 2010), a California federal magistrate judge concluded that inmates failed to state a claim against the California State Personnel Board in connection with their complaint that no Wiccan prison chaplains were hired for their facility.

In Jackson v. Boucaud, 2010 U.S. Dist. LEXIS 23760 (SD GA, March 15, 2010), a Georgia federal district court accepted a federal magistrate's recommendations (2009 U.S. Dist. LEXIS 125893, Dec. 31, 2009) and dismissed an inmate's claims that his rights were infringed when he was not permitted to borrow in inter-library loan a copy of The Bible Code. He failed to allege how denial of the book infringed his sincerely held religious beliefs.

In Holley v. Johnson, 2010 U.S. Dist. LEXIS 23898 (WD VA, March 16, 2010), a Virginia federal magistrate judge permitted an inmate to proceed with challenges under RLUIPA and the due process clause to confiscation of religious materials of the Nation of Gods and Earths (also known as the Five Percent Nation of Islam).

In Boles v. Newth, 2009 U.S. Dist. LEXIS 126028 (D CO, Nov. 13, 2009), a Colorado federal magistrate judge concluded that damage to an inmate's religious objects and religious books did not create a meaningful burden on his practice of religion.

In Borzych v. Frank, 2010 U.S. Dist. LEXIS 25194 (WD WI, March 17, 2010), a Wisconsin federal district judge rejected an inmate's claim that his First and Fourteenth Amendment rights, and his rights under RLUIPA, were violated by a prison policy that prohibits practitioners of Odinism from having runes.

In McChesney v. Hogan, 2010 U.S. Dist. LEXIS 25717 (ND NY, March 18, 2010), a New York federal district court accepted a magistrate's recommendations (2010 U.S. Dist. LEXIS 25705, Feb. 26, 2010), and permitted a civilly committed offender who is an atheist,to proceed on a claim for injunctive relief, but not for damages, on his complaint that material used in the sexual offender treatment program were premised on religious principles.

In Damron v. Sims, 2010 U.S. Dist. LEXIS 25166 (SD OH, March 17, 2010), an Ohio federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 25158, Jan. 27, 2010) and dismissed claims by prisoners who were Christian Separatists that they have been denied in various ways the free exercise of their religion. The court held that plaintiffs pointed only to general policies and failed to allege particular instances in which their rights were infringed.

In Brown v. Michigan Department of Corrections, 2010 U.S. Dist. LEXIS 25396 (ED MI, March 18, 2010), a Michigan federal district court adopted a federal magistrate's recommendations (2009 U.S. Dist. LEXIS 126067, Oct. 28, 2009) and rejected both on statute of limitations grounds and on the merits an inmate's argument that his free exercise rights were violated when he was not permitted to talk about his religious beliefs during the Assaultive Offender Program.

In Anderson v. Craven, 2010 U.S. Dist. LEXIS 25140 (D ID, March 16, 2010), an Idaho federal district court refused to dismiss an inmate's claim that his rights were violated when, as a condition of parole, he was forced to attend the Therapeutic Community program which, allegedly, is religion based.

In Funzie v. Little, 2010 U.S. Dist. LEXIS 25771 (MD TN, March 18, 2010, a Tennessee federal district court adopted a magistrate's findings (2010 U.S. Dist. LEXIS 25768, Jan. 12, 2010) and dismissed plaintiff's objections to the seizure and screening of his religious materials by the security threat group.

Church Claims It Was Misled Into Not Applying For Tax Exemption

Knox News yesterday reported that a church in Knoxville, Tennessee is making an unusual argument in an attempt to avoid $53,000 in back taxes that it did not realize it owed. Tennessee law gives a church three years to apply for a property tax exemption when it replaces its previously exempt property with new property. New Covenant Baptist Church bought new property and began to occupy it as a church in 2005. It thought its previous property was exempt since it never received a tax bill. However in fact the county wrongly omitted its previous property from the tax rolls because the church had never properly applied for an exemption. In In re New Covenant Baptist Church, Inc., (TN Bd. Equal., Feb. 26, 2010), the Tennessee Board of Equalization concluded that the church was not entitled to the grace period for its new property because its previous property was not in fact exempt. In a letter to the Knox County Commission and a draft legal complaint, the church argues that the fault lies with the Knox County Tax Assessor who misled the Church into assuming that its prior property was exempt. The church obtained an exemption beginning Nov. 2006, but its taxes for the two prior years remain at issue.

Church Synod Sued After Ordering Changes In College's Board

According to last Thursday's Christian Post, one lawsuit has been dropped, but a second is still pending after the General Synod of the Associate Reformed Presbyterian Church removed the board of trustees and installed an interim board at Erskine College in Due West, South Carolina. Christianity Today last week reported on the March 3 meeting of the General Synod which acted on a March 2 Report of Moderator's Commission that recommended reducing the size of the college's Board from 34 (plus 23 advisory members) to 16. A Preliminary Report issued in February found numerous problems as the college searches for a new president. Among the findings were: "A significant majority of the professors interviewed had no understanding of how the Christian faith could be meaningfully integrated into their discipline."

All of this led to a lawsuit being filed against the General Synod by Scott Mitchell who is the chairman of both the old board that was removed and of the new interim board that was appointed. It alleged that the General Synod violated Erskine's charter and bylaws in the action it took. The court issued a temporary restraining order barring a change in the bylaws to reduce the size of the board. (Columbia (SC) The State.) However now at the direction of Erskine's executive committee, Mitchell has withdrawn his lawsuit. However a second lawsuit filed by the Alumni Association and three trustees is still pending.

UPDATE: On April 9, a state court judge issued a preliminary injunction in the Alumni Association's suit, freezing the status quo while the litigation is pending. (Erskine College Press Release.)

China Imposes New Financial Audit Rules On Religious Institutions

According to AsiaNews.it last week, China's State Religious Affairs Administration has issued new rules requiring all religious institutions to file audited annual financial reports. The agency said the rules are designed to help the government supervise finances and prevent embezzlement and misappropriation of funds from the country's 130,000 religious institutions. Religious organizations are seen as public institutions under Chinese law.

Court Upholds Rights of Evangelists To Leaflet At Catholic Parish Festival

Teesdale v. City of Chicago, (ND IL, March 17, 2010), is a suit by Garfield Ridge Baptist Church and five of its members who were prevented by police acting as security guards from handing out religious tracts, and from using a megaphone, at a Festival being held (with a city permit) by a Catholic parish on parish grounds and surrounding streets. The court held that it was a violation of plaintiff's clearly established rights to prevent them from leafleting, and that a question of fact remained as to whether preventing them from using a megaphone was reasonable. The court also refused to dismiss the false arrest claim by one of the plaintiffs who was arrested for trespassing. The court however did dismiss plaintiffs equal protection claims and their claims under the Illinois Religious Freedom Restoration Act. Preventing them from distributing literature on one afternoon at one place did not constitute a substantial burden on their religious exercise. Finally the court held that plaintiffs can proceed against the city itself only for equitable relief. Plaintiffs' attorneys issued a press release on the decision.

Saturday, March 20, 2010

House Committee Holds Hearing On Outreach To Muslim Communities To Foil Terrorism

On March 17, the U.S. House of Representatives Committee on Homeland Security held hearings on Working with Communities to Disrupt Terror Plots. The full text of statements of the Chair and of six witnesses, as well as a video recording of the hearing, is available on the Committee's website. Witnesses focused largely on how to create relationships with American Muslim communities.

Appeal Filed By Intervenors Challenging Consent Decree On Religion In Schools

The Pensacola (FL) News-Journal reports that an appeal has been filed with the U.S. 11th Circuit Court of Appeals in Minor Doe I v. School Board for Santa Rosa County, Florida. In the case, a federal district court in February rejected an attempt by the Christian Educators Association International, representing teachers, to intervene to seek a modification of a consent decree under which the Santa Rosa County school board was enjoined from various activities that promoted religion in school classrooms and at school events. (See prior posting.)

New Head of al-Azhar Appointed In Egypt

Trade Arabia reports that on Friday, Egyptian President Hosni Mubarak appointed Sheikh
Ahmed El-Tayeb as the head of al-Azhar to succeed Sheikh Mohamed Sayed Tantawi who died on March 10. (See prior posting.) Al-Azhar is Egypt's most prestigious institution of Islamic learning, and one of the preeminent centers of Sunni learning in the world. Sheikh El-Tayeb has been head of al-Azhar University since 2003. In a 2004 interview he stressed the importance of teaching about the diversity of the Islamic heritage and of opening channels of communication with European countries. El-Tayeb's new position places him as the leader of the entire al-Azhar, which includes educational institutions throughout Egypt.

Pope Sends Pastoral Letter To Irish Catholics Addressing Clergy Sexual Abuse

Vatican Radio reports that Pope Benedict XVI today sent a Pastor Letter to all Catholics in Ireland apologizing for the sexual abuse of young people by Catholic clergy, and for the way in which the matter was handled by local clergy and religious superiors. Last May, a special government commission released a lengthy report on abuse at Catholic institutions in Ireland from 1936 to the present. (See prior posting.) The Pope's letter (full text) charged Irish bishops with "grave errors of judgment" and "failures of leadership." According to BBC News, groups representing victims of abuse have a mixed reaction to the Pope's letter, with some believing that Irish Cardinal Sean Brady should resign because of his reported role in the cover up of abuse charges. Others, however, pointing to the passage in the letter instructing bishops and religious superiors to "cooperate with civil authorities in their area of competence," say this means the Pope believes that those guilty of sexual abuse should face criminal prosecution.

Friday, March 19, 2010

Court Rejects Street Preachers' Challenge To Permit Ordinance

In Bethel v. City of Montgomery, 2010 U.S. Dist. LEXIS 24949 (MD AL, March 2, 2010), two street preachers challenged the requirement imposed by Montgomery, Alabama that they obtain a permit before preaching on public streets. A federal magistrate judge rejected their facial challenge to the ordinance, concluding it is a neutral time, place and manner restriction that is permissible under the First Amendment. The magistrate judge also rejected plaintiffs' equal protection and Fourth Amendment claims, recommending that the complaint be dismissed.

Suit Over School Rules That Banned Pro-Life T-Shirt Is Settled

Alliance Defense Fund on Wednesday announced the settlement of a lawsuit challenging the policies of a Pennsylvania school district under which a middle school student was told to remove a pro-life T-shirt which carried the message: "Abortion is not Healthcare." (See prior posting.) The Notice of Voluntary Dismissal in E.B. v. West Shore School District, (MD PA, filed 3/17/2010), says that the school district has revised it policy on school expression to eliminate a provision that allowed officials to ban expression that seeks to establish the supremacy of a particular religious denomination or viewpoint. The school district also revised its dress and grooming policy to eliminate a a ban on clothing that creates a hostile educational environment or displays discriminatory bias or animus.

Council Considering Policy on Proclamations for Religious Holidays

In North Miami Beach, Florida, city council's multicultural committee submitted recommendations Tuesday for a council policy on issuing proclamations recognizing religious holidays. Yesterday's Miami Herald reports that under the proposal, council would issue an official proclamation for only one holiday for each religion. The report generated some controversy however because it provides that proclamations should be issued fairly, for holidays of "all legal recognized religions." Committee chairman, Thomas Pinder, says this means no proclamations should be issued for religions considered to be cults or known to practice illegal acts as part of their ceremonies or worship. The report calls for a subcommittee to identify the various religions practiced by North Miami Beach residents, and for it to specify the one main holiday that should be recognized by the council for each of the religions.

Belgian Court Suspends Ban On Islamic Headscarves

Yesterday, Belgium's Council of State suspended a ban on Islamic headscarves that had been imposed on Muslim school girls in the Dutch-speaking region of Flanders. Earth Times reports that the Flanders regional educational council imposed the ban last year after teachers complained that some parents were forcing their daughters to wear the headscarves against their will. In ruling on a challenge to the order, the Council of State said it is not clear whether the educational council had the authority to issue the ban. The Council of State referred to the Constitutional Court the question of whether action by the Flemish Parliament was required before the ban could be imposed.