Court Rejects Suit Against Catholic Order By Adult Children of Priest

In Latty v. St. Joseph's Society of the Sacred Heart, (MD Ct. Spec. App., April 4, 2011), a Maryland appellate court dismissed a lawsuit for damages brought against the Josephite Fathers by a woman over 50 years old and a man over 60 years old, both of whom recently discovered that their biological father was likely a Catholic priest-- Father Francis E. Ryan-- who was a member of the Josephites. In the 1940's and '50's, Ryan became romantically involved with a woman who was an organist at his church.  She subsequently gave birth to plaintiffs.  Plaintiffs claim that the Josephite Fathers covered up Ryan's affair and concealed the fact that he was plaintiffs' father. The court said it did not have to decide whether the First Amendment barred the lawsuit because the court could dispose of it on other grounds.  It rejected on the merits plaintiffs' claims of concealment; intentional infliction of emotional distress; negligent hiring, supervision and retention; and breach of fiduciary duty.

Recent Prisoner Free Exercise Cases

In Reiss v. Stansel, 2011 U.S. Dist. LEXIS 33280 (D AZ, March 28, 2011), an Arizona federal district court dismissed claims brought against Immigration and Customs Enforcement officials who were charged by plaintiff with failing to report to higher officials the failure of employees of a private prison facility to accommodate his request for accommodation of his Jewish religious practices.

Marcusse v. United States, 2011 U.S. Dist. LEXIS 33786 (WD MI, March 30, 2011) is a suit by a prisoner to set aside her fraud sentence on various grounds. The court rejected her argument that her church had been targeted and that her due process rights were violated by the government's use of terms such as "checkbook church." It reserved judgment on the inmate's argument that jury instructions failed to address her good faith belief about her church's tax exemption.

In Williams v. Beard, 2011 U.S. Dist. LEXIS 34310 (MD PA, March 30, 2011), a Pennsylvania federal district court rejected a Muslim inmate's complaint regarding Christmas decorations in the prison's multi-faith chapel.

In Banks v. Almazar, 2011 U.S. Dist. LEXIS 33739 (ND IL, March 30, 2011), two Muslim men who were involuntarily committed to a mental health treatment center claim they were denied access to Jum'ah services, and one of the plaintiffs claims he was denied an adequate diet that met his religious needs.  As to most claims, an Illinois federal district court held that there were still factual issues to be determined-- many relating to which defendants were involved-- so that summary judgment was not appropriate. However it did award one plaintiff summary judgment on his claim that his free exercise rights were violated in being denied access to religious services.

In Lowery v. Edmondson, 2011 U.S. Dist. LEXIS 33795 (ED OK, March 29, 2011), inmates who are members of the Moorish Science Temple of America complain that the prison's headgear policy discriminates against them by requiring all religious headgear to lay flat on the head, and also complain that they are not permitted to keep their fezzes in their cells. An Oklahoma federal district court dismissed a number of the claims for failure to exhaust administrative remedies, but permitted one plaintiff to move ahead with his claim regarding keeping his fez in his cell and wearing it for religious services.

In Roberts v. Klein, 2011 U.S. Dist. LEXIS 34053 (D NV, March 22, 2011), a Nevada federal district court permitted a "Black Inmate of Jewish Tenet and Faith" to proceed with his challenge to denying him kosher meals because his Jewish faith was not verified by an outside entity. Plaintiff also claimed that white inmates were not required to have such verification. He was also permitted to move ahead on his claim that black inmates, but not white inmates, of Jewish faith have their work assignments terminated for attending Jewish services.

Church Has No Vested Right Under Prior Zoning Ordinance

In Christian Assembly Rios De Agua Viva v. City of Burbank, (IL App., March 31, 2011), an Illinois appellate court refused to grant a congregation a preliminary injunction to permit it to operate a church on property it has contracted to purchase.  The city recently amended its zoning ordinance precludes churches on the property in question. The church argued it had a vested right under the pre-amended ordinance to operate on the property. The court disagreed, since the church's argument was based merely on its belief that the pre-amendment ordinance violated state and federal law and the requirement that churches obtain a special use permit could be successfully challenged. The court went on to uphold the amended ordinance that excluded from commercial districts any uses that did not produce taxable income.

Chabad Seeks Civil Contempt Sanctions Against Russian Government In Expropriated Library Case

In an unusual legal move Monday, Chabad-Lubavitch filed a motion (full text) with the U.S. District Court for the District of Columbia asking it to impose civil contempt sanctions on the Russian government for Russia's failure to comply with a default judgment ordering it to return two valuable expropriated collections of Jewish books to Chabad. (See prior posting.) The motion filed in Agudas Chasidei Chabad of the United States v. Russian Federation suggests sanctions of at least $25,000 per day. Reporting on the filing of the motion, Blog of Legal Times quotes Chabad's attorney Nathan Lewin who said that a recent D.C. Circuit case imposing civil contempt sanctions on the Democratic Republic of Congo set the state for Chabad's motion.

Trial Court Invalidates Illinois Pharmacy Board Rule On Dispensing Plan B

An Illinois state trial court judge yesterday in Morr-Fitz, Inc. v. Blagojevich, held that an Illinois State Pharmacy Board rule requiring pharmacies to dispense Plan B and other forms of emergency contraception violates Illinois' Health Care Right of Conscience Act, the Illinois Religious Freedom Restoration Act (RFRA), and the 1st Amendment's free exercise clause. Life News reports that the court countered the government's contention that it had a compelling interest in assuring timely access to drugs by indicating that there was no evidence that anyone was ever unable to obtain emergency contraception because of a religious objection. According to the Chicago Sun Times, the state plans to appeal the decision. (See prior related posting.)

Arizona Legislature Passes Broad Protection For Religious Beliefs In Occupational Licensing

After passage by the state Senate last month, on Monday the Arizona House of Representatives passed and sent to the governor for her signature SB 1288, a broad bill protecting against basing denial of occupational licenses or positions on public bodies based on a person's exercise of religion. The bill provides:

A. Government shall not deny, suspend or revoke a professional or occupational license, certificate or registration based on a person's exercise of religion.

B. Government shall not deny, suspend or revoke a professional or occupational license, certificate or registration based on a person's refusal to affirm a statement that is contrary to the person's sincerely held moral or religious beliefs, regardless of whether those beliefs are specifically espoused by a recognized church or religious body.

C. A person's exercise of religion is not unprofessional conduct.

D. Government shall not deny a person a position on a board, commission, committee or public body based on the person's religious beliefs or exercise of religion.

E. This section does not authorize any person to engage in sexual misconduct or any criminal conduct.

F. For purposes of this section ... "sexual misconduct" means any sexual conduct proscribed by the person's licensing board or agency. Sexual misconduct does not include religious expression or beliefs.

Yesterday's Verde Independent sets out examples given by legislators of situations at which the bill is directed.  In 2008, the State Bar of Arizona proposed adding "sexual orientation" to an oath taken by lawyers that they will not permit "considerations of gender, race, age, nationality, disability or social standing to influence my duty of care."  In Minnesota, license issues were raised when Muslim cab drivers refused to transport. passengers carrying alcohol.

Utah University President Speaks On Challenges To Religious Freedom

University of Utah president Michael K. Young, formerly a member of the U.S. Commission on International Religious Freedom and an advisor on religious freedom to the Church of Jesus Christ of Latter Day Saints, addressed the LDS International Society on Monday on the challenges to religious freedom. KSL News reports on the speech in which Young elaborated on three arguments he says that critics are using to limit freedom of religion in the U.S.: (1) Religion is not special; (2) Religion is good, but a private affair; and (3) Religion has a negative impact.  In the Q and A, Young, expanding on his contention that Mormons should be among the most passionate civil libertarians in the world, said: "we all ought to be members of the ACLU."

In France, Controversial Debate On Secularism Is Held

At a hotel in Paris yesterday, some members of France's governing party, the Union for a Popular Movement, held a controversial debate on the nature of secularism in France. 600 religious leaders, legislators and journalists attended.  The New York Times reports that the three-hour debate was initiated by President Nicolas Sarkozy and organized by the leader of his party, but some, including Prime Minister Francois Fillon, refused to take part out of concern the debate would stigmatize Muslims and push the party too far to the right. Leaders of six major religions issued a joint statement expressing concern about the debate. Those who organized the event are trying to support a Westernized version of Islam that accepts gender equality and the French cultural norm that religious beliefs are a private matter.

Meanwhile RFI reports on a successful one-year government-sponsored diploma at the Catholic Institute of Paris that teaches Muslim religious and cultural leaders about France's secular tradition. However fewer students are enrolling in reaction to France's ban on the full face veil and this week's debate on secularism, which they see as scapegoating of Muslims.

Civil Courts May Not Decide Questions of How Church Presents Financial Records To Members

In Nelson v. Baker, (KY App., April 1, 2011), the Kentucky Court of Appeal dismissed a lawsuit brought by members of a Baptist church complaining, among other things, that defendants were not reporting to members on the church's financial affairs. the Court of Appeals held that, based on the First Amendment, it lacked jurisdiction over the complaint because: "The Church’s financial records and method of presentation to the congregation are clearly matters of internal governance and organization, and are, therefore, not subject to interference by the court."

US Female Troops In Afghanistan Often Wear Head Scarves While Interacting With Local Population

American military officials are defending Department of Defense policy that encourages female service members in Afghanistan to wear head scarves, similar to traditional Afghan hijabs, when interacting with local civilians. CNN reported yesterday that American women are not being ordered to wear the head scarves, but many do as a sign of courtesy and respect toward the local population. Since Afghan culture bars women from interacting with men who are not members of their family, female troops are the ones to interact with local women.

Suit Challenges Prayer Mural In High School

The ACLU of Rhode Island yesterday announced that it has filed a federal lawsuit on behalf of a high school student challenging an 8-foot high prayer mural that has been displayed on the wall in the auditorium of Cranston (RI) High School West and of a Cranston middle school for nearly 50 years. The complaint (full text) in Ahlquist v. City of Cranston, (D RI, filed 4/4/2011) says that the prayer was adopted as the official school prayer of Cranston West around 1960.  It begins by asking "Our Heavenly Father" to grant students the desire to do their best, to help them grow, be kind, be good sports, and the like.  The suit alleges that display of the prayer violates plaintiff's 1st and 14th Amendment rights.

UPDATE: Here is plaintiff's Trial Memorandum of Law, filed 9/9/2011.

Supreme Court Holds Taxpayers Lack Standing To Challenge Tax Credits For Tuition Contributions

In a 5-4 opinion today in Arizona Christian School Tuition Organization v. Winn, (Sup. Ct., April 4, 2011), the U.S. Supreme Court held that taxpayers lacked standing to bring an Establishment Clause challenge to Arizona's program that provides tax credits for contributions to school tuition organizations that in turn provide scholarships to students in private schools-- many of them religious schools.  Kennedy's opinion (joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito) rejected plaintiffs' argument that the standing rule announced in Flast v. Cohen applies, saying:

In their view the tax credit is, for Flast purposes, best understood as a governmental expenditure. That is incorrect. It is easy to see that tax credits and governmental expenditures can have similar economic  consequences, at least for beneficiaries whose tax liability is sufficiently large to take full advantage of the credit. Yet tax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are “extracted and spent” knows that he has in some small measure been made to contribute to an establishment in violation of conscience.... In that instance the taxpayer’s direct and particular connection with the establishment does not depend on economic speculation or political conjecture. The connection would exist even if the conscientious dissenter’s tax liability were unaffected or reduced...... When the government declines to impose a tax, by contrast, there is no such connection between dissenting taxpayer and alleged establishment. Any financial injury remains speculative.... And awarding some citizens a tax credit allows other citizens to retain control over their own funds in accordance with their own consciences.

Justice Scalia also wrote a concurrence, joined by Justice Thomas, urging that Flast be overruled.

Justice Kagan wrote a dissent, joined by Justices Ginsburg, Breyer and Sotomayor, arguing that the majority's "arbitrary distinction" between expenditures and tax credits:

threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion. Precisely becauseappropriations and tax breaks can achieve identical objec-tives, the government can easily substitute one for the other. Today’s opinion thus enables the government toend-run Flast’s guarantee of access to the Judiciary.

Philadelphia Police Handling of Gay Pride Protesters Is Upheld

In Marcavage v. City of Philadelphia, 2011 U.S. Dist. LEXIS 34999 (ED PA, March 31, 2011), a Pennsylvania federal district court dismissed a civil rights lawsuit filed by evangelical Christian street preacher Michael Marcavage against the city of Philadelphia. The lawsuit grew out of the action of police at four separate gay pride and gay marriage events at which Marcavage and members of his Repent America organization preached against homosexuality.  Police separated Marcavage and his group from the crowd and allowed them from a new location to preach using amplified sound, leaflets and large signs. Finding these actions to be valid neutral time, place and manner regulations of speech, the court said:  "the City has a legitimate interest in preventing Marcavage — as a counter-protestor of a permitted event — from interfering with the message of the permit holder and ensuring the safety of both the participants as well as Marcavage and his group."

Maryland Appeals Court Upholds Prenup Interpretation By Bet Din

In Lang v.Levi, (MD Ct. Spec. App., April 1, 2011), a Maryland appellate court upheld a decision by a Jewish arbitration panel (Bet Din) refusing to award a wife liquidated damages under provisions of a pre-nuptial agreement.  When Julie Lang and Zion Levi were married, they agreed that if they separated, Levi would pay Lang $100 per day until he granted her a Jewish divorce document (get).  The Bet Din however decided that no damages were due to Lang because because Levi was willing to give her a get soon after the parties stopped living together and Lang initially refused. Lang claims the Bet Din exceeded its authority and that its decision was irrational. The court disagreed. It also held that the Establishment Clause barred it from inquiring whether there is a basis in Jewish law for the procedures used by the Bet Din that resulted in an initial decision being reversed.

The court also rejected Lang's argument that the procedures of the Bet Din violated the requirements of the Maryland Uniform Arbitration Act by requiring her counsel to submit questions to witnesses through Bet Din members instead of permitting direct cross examination.  The court said that so long as the proceedings conform to notions of basic fairness and the litigants have knowingly and voluntarily agreed to the procedures, an arbitration proceeding in a Bet Din is valid, even if it does not comply with the requirements of the MUAA.

Recent Articles of Interest

From SSRN:

• A. Govindjee and Jacques Malherbe, A Question of Blood: Constitutional Perspectives on Medical Decision-Making for Children of Jehovah’s Witnesses, (Journal of Contemporary Roman-Dutch Law, Vol. 73, p. 61, 2010).
• Steven Menashi, Cain as His Brother's Keeper: Property Rights and Christian Ethics in Locke's Two Treatises of Government, (Seton Hall Law Review, Vol. 42, 2012).
• John D. Inazu, Between Liberalism and Theocracy, (Campbell Law Review, 2011).
• Caroline Mala Corbin, Nonbelievers and Government Religious Speech, (Iowa Law Review, Vol. 97, 2011).
• Patrick McKinley Brennan, Lawmaking, Administration, and Traces of Civic Republicanism: Thought on Jean Porter’s Ministers of the Law, (Journal of Catholic Social Thought: Symposium on Jean Porter's Ministers of the Law: Natural Law Theory of Legal Authority, Forthcoming; Villanova Law/Public Policy Research Paper No. 2010-22).
• Rev. John J. Coughlin, O.F.M., Constitutional Law and Canon Law: The Impact of Neutral Rules on Hierarchical Churches, (Contemporary Issues In Canon Law, Patricia M. Dugan, ed., Gratianus Series, Wilson and Lafleur, 2011).
• Linda Greenhouse and Reva B. Siegel, Before (and after) Roe V. Wade: New Questions About Backlash, (Yale Law Journal, Forthcoming).
• James J. Knicely and John W. Whitehead, In God We Trust: The Judicial Establishment of American Civil Religion, (John Marshall Law Review, Vol. 43, p. 869, 2010).
• Nicholas Walter, The Status of Religious Arbitration in the United States and Canada, (April 2, 2011).
• Heather Kennedy, Intolerance in the Name of Tolerance: Will the United States Supreme Court’s Circular Reasoning in its Decision of Christian Legal Society v. Martinez be the Downfall of Student Organizations as We Know Them?, (January 24, 2011).
• Dawinder S. Sidhu, Interpreting and Revising Title VII to Prohibit Workplace Segregation Premised on Religion, (March 19, 2011).

From SmartCILP:

• Louis J. Virelli III, Judging Darwin: Understanding the New Distributive Model of Evolution Instruction, 13 University of Pennsylvania Journal of Constitutional Law 81-144 (2010).

Recent Prisoner Free Exercise Cases

In Green v. Caruso, 2011 U.S. Dist. LEXIS 30520 (WD MI, March 24, 2011), a Michigan federal district court rejected a Muslim prisoner's claims that his rights were violated by prison authorities allowing his food to be contaminated with pork and their refusal to call him by his Muslim name.

In Keyes v. Krick, 2011 U.S. Dist. LEXIS 30665 (D CO, March 23, 2011), a Colorado federal district court held that while an inmate stated a free exercise claim through his allegations that he was not permitted to discuss his religious beliefs as part of his drug abuse program, the court dismissed the claim on qualified immunity grounds.

In Miller v. Fischer, 2011 U.S. Dist. LEXIS 30605 (ND NY, March 24, 2011), a New York federal district court accepted a magistrate's recommendations (2009 U.S. Dist. LEXIS 130773, Sept. 22, 2009), and dismissed plaintiff's claim that his rights were violated when prison authorities refused to allow him to possess incense and an incense burner he needed to practice his Pagan/ Wiccan religion.

In Johnson v. Smith, 2011 U.S. Dist. LEXIS 31511 (ND GA, March  25, 2011), a Georgia federal district court dismissed an inmate's complaint that jail officials took his Bible from him while he was in disciplinary isolation.

In Mincy v. DeParlos, 2011 U.S. Dist. LEXIS 31168 (MD PA, March 24, 2011), a Pennsylvania federal district court rejected a Muslim inmate's claims that prison authorities failed to accommodate his Ramadan fast, denied him access to Jum'ah services on one occasion due to the sign-up policy, had an unequal policy on distribution of religious materials and denied Muslim inmates the right to distribute Zakat from their inmate accounts.

In Martinez v. Brown, 2011 U.S. Dist. LEXIS 31247 (SD CA, March 24, 2011), a California federal district court refused to certify, for purposes of a class action asserting free exercise claims, two subclasses--  Native American prisoners in the general prison population and Native American prisoners confined to security, administrative, protective and psychiatric housing units.

In Jackson v. Thomas, 2011 U.S. Dist. LEXIS 31896 (CD CA, March 25, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 31894, March 1, 2011), and permitted plaintiff, who was housed at a state hospital as a sexually violent predator, to move ahead with his challenge to the hospital's refusal to permit him to attend church services when he had his access level reduced for 29 days.

In Riley v. Beard, 2011 U.S. Dist. LEXIS 32640 (WD PA, March 29, 2011), a Pennsylvania federal district court dismissed a Muslim inmate's 1st Amendment challenge, but permitted him to proceed with his RLUIPA claim that his free exercise of religion was substantially burdened when prison authorities insisted that he pay to obtain dates with which to break the Ramadan fast and to share in the Eid al-Fitr feast. Plaintiff alleged he was indigent and that his administrative segregation prevented him from obtaining prison employment.

In Williams v. Sibbett, 2011 U.S. Dist. LEXIS 32385 (D UT, March 25, 2011), a Utah federal district court dismissed a series of claims by an inmate charging the Utah Board of Pardons and Parole with considering religion in making parole decisions and in favoring members of the Mormon church.

In Silvagnoli v. Sister Marylou, 2011 U.S. Dist. LEXIS 32989 (WD NY, March 29, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 32983, March 4, 2011) and dismissed a Santeria prisoner's complaint that the coordinating chaplain inspected his Santeria shrine, and that he was denied access to the stove in the kitchen early in the morning to use to make coffee as a daily offering to the saints and his ancestors.

Evidence of Religious Belief As Motive For Murder Is Admissible Over Free Exercise Challenge

In State of Oregon v. Brumwell, (OR Sup. Ct. March 25, 2011), the Oregon Supreme Court, in reviewing the murder conviction and death sentence imposed on defendant, rejected defendant's argument that evidence of Satanism introduced at the penalty phase of his trial violated his free exercise rights. The evidence at the penalty phase of the trial for murder of a fellow-inmate related to the motive for an earlier murder for which defendant was in prison.  The Court held:

[D]efendant's argument assumes that the evidence was admitted only to prove that he was an adherent of a disfavored religion, and he argues that evidence admitted for that purpose infringes the free exercise of his religious beliefs. The difficulty with defendant's argument is the assumption that underlies it. As explained above, the trial court admitted the challenged evidence because it bore on defendant's motive ...without regard to the specific nature of the motive. Given the trial court's religion-neutral ruling, defendant's state constitutional argument fails.

South Dakota Law Protects Religious Orders From Native American Sex Abuse Lawsuits

A South Dakota trial court judge on Thursday dismissed a sexual abuse lawsuit that had been brought by ten Native American plaintiffs against the Catholic Diocese of Sioux Falls, Blue Cloud Abbey, the Oblate Sisters of the Blessed Sacrament and the Sisters of the Blessed Sacrament. The Rapid City (SD) Journal reports that the court dismissed negligence and breach of fiduciary duty claims against the religious entities that staffed the St. Paul's School on the Yankton Reservation prior to 1975 when it came under tribal control. The dismissal follows up on a ruling the judge made in February.  The court relied on a 2010 amendment to South Dakota's statute of limitations for damage actions stemming from childhood sexual abuse (SDCL 26-10-25).  That amendment provides that "no person who has reached the age of forty years may recover damages from any person or entity other than the person who perpetrated the actual act of sexual abuse," even if the suit was brought within the statutory 3 years from the time the injury caused by the act was, or should have been, discovered. The attorney for plaintiffs charges that the 2010 law, backed by religious orders, targets the rights of Lakota and Oglala people who were students during the reservation boarding school era. He says Thursday's decision will be appealed. Nearly 70 cases have been filed by former St. Paul's students and another 17 by former students at the St. Francis Mission school on the Rosebud Reservation, charging physical, sexual and emotional abuse in the 1950's, 60's and 70's.

Preliminary Injunction Forces Bus System To Accept Ads From Anti-Jihad Group

In American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation ("SMART"), (ED MI, March 31, 2011), a Michigan federal district court granted a preliminary injunction preventing the bus system in four southeastern Michigan counties from rejecting anti-jihad ads that plaintiff sought to place on buses.  According to a press release from the Thomas More Law Center, the ads read: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get Answers!" SMART rejected the ads under its policy that prohibited, among others, political ads or ads that are likely to hold any group up to scorn or ridicule. The court held that while it is likely that the bus advertising space  is a non-public forum, the restriction is unconstitutional because "there is nothing in the policy that can guide a government official to distinguish between permissible and impermissible advertisements in a non-arbitrary fashion."

12 Killed At U.N. Mission In Afghanistan After Demonstration Against Florida Qur'an Burning

According to CNN, at least 12 people were killed and 24 injured in Afghanistan's Mazar e-Sharif in an attack on a United Nations assistance mission building. The attack with knives and small arms followed a demonstration protesting a reported burning of a Qur'an last month by controversial Florida pastor Terry Jones. (See prior related posting.) The dead included 8 U.N. workers and 4 Afghans.

8th Circuit: Title VII Does Not Require Saturdays Off For Postal Worker

In Harrell v. Donahue, (8th Cir., March 31, 2011), the 8th Circuit held that the U.S. Postal Service was not required to accommodate a Seventh Day Adventist letter carrier's request to have every Saturday off. The court ruled that the refusal to accommodate did not violate Title VII of the 1964 Civil Rights Act because accommodation would have required violation of the Postal Service's collective bargaining agreement, or or its seniority system. The court also rejected plaintiff's RFRA claim, holding that Title VII is the exclusive remedy for employment discrimination claims by federal workers. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

National Park Service Asked To Create Policy On Religious Displays

Public Employees for Environmental Responsibility, a national non-profit alliance of local, state and federal scientists, law enforcement officers, and land managers, yesterday issued a press release complaining that the National Park Service has failed to create a policy regarding religious displays on federal park lands.  The group points to two recent controversies that remain unresolved.  One involves a Buddhist stupa on the grounds of the Petroglyph National Monument in New Mexico. The other involves bronze plaques with biblical verses in Arizona’s Grand Canyon National Park. The stupa was on land purchased by a national park. The bronze plaques, which were removed by Park Service officials, but whose placement is being reconsidered, belong to the Evangelical Sisterhood of Mary. Yesterday's Denver Post reports on the situation.

Native American Student Sues To Challenge Dress Code Barring Long Hair

The ACLU of Louisiana announced yesterday that it has filed a federal lawsuit on behalf of a Native American junior high school student challenging the Livingston Parish (LA) Dress Code after the student was suspended for wearing long hair in accordance with the cultural and religious traditions of the United Houma Nations tribe.  The complaint (full text) in  Doe v. Livingston Parish School Board, (MD LA, filed 3/31/2011) claims that the student's free exercise and free expression rights, his rights under the Louisiana Preservation of Religious Freedom Act, and his parents due process rights to control the education and religious upbringing of their son, have all been violated. Houma Courier reports on the lawsuit.

Suit Challenges Suspension of Student For Preaching, Bringing Bible To School

A lawsuit filed last week in a California federal district court charges that the Grossmont Union High School District infringed the constitutional rights of 16-year old Kenneth Dominguez when it told him he could not bring his Bible to school or preach at school. According to a press release from the Pacific Justice Institute, eventually the student was suspended for two days when he refused to comply.  According to yesterday's San Diego Union Tribune, the school district says that Dominguez has a history of disruptive behavior and was interrupting class.

Lawsuit Challenges Denial of Demolition Permit For Mormon Chapel To Be Built

The Albany (NY) Times Union yesterday reported that the Church of Jesus Christ of Latter Day Saints is suing the city of Albany and its Planning Board in state court over their refusal to issue a permit so that the church can demolish a former Catholic school building in preparation for construction of a Mormon chapel. The suit alleges that the refusal violates RLUIPA and that the city's demolition review ordinance is unconstitutional. The Planning Board says that the now-empty Catholic school building is intertwined with the character of the neighborhood and could be renovated for use at the same cost as building a new chapel.

Plaintiff Can Move Ahead On Some Claims Growing Out of Dispute Over Driver's License Photo

Islam v. City of Bridgeton, 2011 U.S. Dist. LEXIS 32411 (D NJ, March 28, 2011), is a lawsuit growing out of a heated exchange between a Muslim woman (named Pamela Winrow Islam) and the manager of a branch office of the New Jersey Motor Vehicle Commission over the conditions under which Islam could have her drivers' license photo taken wearing a religious headscarf. The argument ended in a local police officer escorting Muslim out. The parties disagree over whether force was used to do so. Islam sued alleging violation of various of her constitutional rights, violation of New Jersey's Law Against Discrimination, as well as false arrest and malicious prosecution. The court allowed plaintiff to move ahead with various of her claims as to some of the defendants, but not as to  others.

In Disadvantaged Business Enterprise Program, Anti-Union Views Are Not Religious Beliefs

In Best Wood Judge Firewood and Tree Service v. U.S. Department of Transportation, 2011 U.S. Dist. LEXIS 32405 (ED WI, March 25, 2011), a Wisconsin federal district court rejected a claim by the owner of a land clearing business that his free exercise rights were infringed when he was denied certification that would have made him eligible for a federally-funded Disadvantaged Business Enterprise program. Owner Thomas Holzrichter claimed he was "socially disadvantaged" since he had consistently been denied subcontracts on Wisconsin Department of Transportation projects because neither he nor his employees were union members. Holzrichter claimed that he had strong moral and religious beliefs that precluded him from joining a union. However the court held:

Holzrichter admits that his Roman Catholic faith does not reject union membership. Moreover, Holzrichter is not opposed to all unions or the concept of union membership—and approves of teachers' and state workers' unions such as his wife's union—thereby reducing any inference that he holds an anti-union belief "religiously." Holzrichter is vehemently opposed to joining Local 139, and that objection may be based in his personal beliefs, ethics and morals. But in this court's opinion Holzrichter's opposition to Local 139 alone does not equate with his devotion to the divine, an ultimate being, or that which has ultimate importance. Holzrichter's opposition to Local 139 is neither required by a religious faith nor part of any personal religiousness; it is a personal preference based on personal principles.

Suit In Lebanon Attacks Politician For Criticizing Veiled Muslim Women

Lebanon's Daily Star reports on a lawsuit that has been filed in Beirut against Wiam Wahhab, leader of the Tawhid Party, by 70 Lebanese and Saudi women for remarks Wahhab made about Muslim women's veils. In a television interview earlier this month, Wahhab described Saudi women as being made to wear “black trash bags."  The lawsuit claims that Wahhab should be prosecuted for inciting religious hatred (Lebanon Penal Code Art. 317) and insulting religion (Lebanon Penal Code Art. 474). Plaintiffs also want the court to shut down the Tawhid Party.  Wahhab has apologized for his remarks, saying they were aimed a Saudi authorities for their oppressive treatment of women.

Anti-Abortion Group Challenges Library's Rules For Use of Meeting Rooms

An anti-abortion group, 40 Days for Life, filed a federal lawsuit yesterday against a Wisconsin public library that cancelled the group's scheduled showing in a library public meeting room of a film titled Blood Money.  The library claimed that the film would interfere with normal use of the library and therefore was in violation of the library's rules for use of meeting rooms.  The Memorandum in Support of Motion for Temporary Restraining Order and Preliminary Injunction  (full text) in 40 Days For Life of Wassau v. Illick, (WD WI, filed 3/30/2011), claims that the Marathon County (WI) library's standards for use of public meeting rooms are vague and place unlimited discretion in the hands of the library director and trustees. It also claims the rules are not viewpoint neutral. Thomas More Society yesterday issued a press release announcing the filing of the lawsuit.

UPDATE: In a letter dated March 31, counsel for Marathon County  wrote plaintiffs' counsel informing them  that  the library will now permit showing of the scheduled film. The letter says in part: "Although the library had legitimate concerns raised by Facebook postings regarding the staging of a protest at the library as a result of you client's actions, it has been determined that this matter should not be litigated." (TMS press release).

New York Syrian Jewish Community Leader Pleads Guilty To Money Laundering

The U.S. Attorney's Office in Trenton, New Jersey announced on Monday that 89-year old Rabbi Saul Kassin, a leader of New York's Syrian Jewish community pleaded guilty to an Information (full text) charging him with operating an illegal money remitting business. As summarized by JTA:

Kassin confessed to using his Magen Israel Society to launder money given to him by Solomon Dwek, a real-estate tycoon and the son of a prominent Syrian rabbi who was arrested in 2006 for a $50 million bank fraud. Under the system, Kassin and the charity kept 10 percent. Dwek later became a federal informant.

As part of his plea agreement, prosecutors will nos seek a prison sentence. However Kassin agreed to forfeit $367,500 in funds seized from the Magen Israel Society's bank account. He could also be fined up to $250,000. (See prior related posting.) Kassin was originally arrested as part of a larger public corruption and money laundering probe in 2009. (See prior posting.)

Court Agrees University Could Not Reasonably Accommodate Program Coordinator's Sabbath Needs

In Crider v. University of Tennessee, Knoxville, (ED TN, March 28, 2011), a Tennessee federal district court dismissed a case brought by a Seventh Day Adventist who claimed that the University of Tennessee failed to accommodate her religious beliefs that precluded her from performing any work from sundown Friday to sundown Saturday.  Kimberly Crider was hired as coordinator in the University's Programs Abroad Office. Among her responsibilities was the monitoring on rotating week ends of an emergency cell phone that could be called by students and faculty who are traveling abroad. Various other job responsibilities also called for week end work. The court found that the University could not reasonably accommodate Crider without incurring undue hardship. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

4th Circuit Upholds West Virginia's Vaccination Requirements Over Constitutional Challenges

In Workman v. Mingo County Board of Education, (4th Cir., March 22, 2011), the U.S. 4th Circuit Court of Appeals upheld West Virginia's statute requiring vaccination for various diseases as a condition of attending school. The court rejected plaintiff's free exercise, equal protection  and substantive due process challenges to the requirement. (See prior related posting.) The Charleston Gazette reporting on the case yesterday says that plaintiff will seek review of the decision in the Supreme Court.

Muslim Center's Zoning Claims Move Ahead, But Individual Capacity Claims Dismissed

In Irshad Learning Center v. County of DuPage, (ND IL, March 28, 2011), an Illinois federal district court dismissed individual capacity claims against county officials, but permitted plaintiffs to move ahead with most of their other challenges to the denial of a conditional use permit to use their property for Muslim religious purposes and educational activities. The lawsuit alleges that the county violated RLUIPA, the Illinois Religious Freedom Restoration Act and various constitutional provisions in denying the zoning request. The court held that individual members of the County Board and Zoning Board of Appeals have quasi-judicial immunity from liability for the zoning decisions they made. The court refused to dismiss plaintiffs' claims against the county charging violations of the equal terms and substantial burden provisions of RLUIPA and the Equal Protection  and Free Exercise Clauses. Yesterday's Naperville (IL) Sun reported on the decision.

Muslim Brotherhood In Egypt Invites Copts To Join Its New Political Party

Al Masyr Al Youm today reports that Egyptian Muslim Brotherhood Supreme Guide Mohamed Badie has invited Coptic Christians to join the Freedom and Justice Party-- the new political party which the Brotherhood plans to form. Badie says the new party will not preach religion. It will organize athletic and artistic activities, and support new economic institutions, hospitals and schools. The Supreme Council of Egypt's Armed Forces has approved a new law that bars the formation of political parties based on religion. (See prior posting.)

10th Circuit Upholds Bald Eagle Protection Regulations Over RFRA Challenge

In a complicated opinion yesterday, the U.S. 10th Circuit Court of Appeals upheld the current federal regulations that implement the Bald and Golden Eagle Protection Act against a claim that they infringe the religious freedom of adherents of Native American religions who are not members of federally recognized Indian tribes.  In United States v. Wilgus, (10th Cir., March 29, 2011), the court gave this background:

16 U.S.C. § 668, prohibits possession of the feathers or parts of eagles, but contains an exception to the ban when the feathers are possessed "for the religious purposes of Indian tribes." Id. § 668a. The regulations implementing the exception limit its scope to members of federally-recognized tribes only, who are allowed to apply to the government for permits. 50 C.F.R. § 22.22. Wilgus is a follower of a Native American faith, but is not a member of a federally-recognized tribe, nor is he Indian by birth.

Faced with prosecution, Wilgus interposed as a defense the Religious Freedom Restoration Act ... which prohibits the federal government from substantially burdening the religious freedom of individuals, unless it does so to forward a compelling governmental interest via the least restrictive means. Wilgus argues that the government’s choice to limit legal possession of eagle feathers to members of federally-recognized tribes substantially burdens his religious exercise which, he claims, requires him to possess eagle feathers.

In an earlier en banc decision, the 10th Circuit had held that defendant's religious exercise was substantially burdened, but that the government had two compelling interests for doing so. In yesterday's decision, the 10th Circuit dealt with the remaining issue-- whether the current regulation is the least restrictive means of furthering the government's interests in protecting the bald eagle as our national symbol and in fostering Native American  culture and religion. It held that it is.

In the course of its decision, the court refined the articulation of the government's compelling interests. It concluded that the interest was one of protecting the culture of federally-recognized Indian tribes, not protecting Native American religion more generally. It said that the broader formulation would run afoul of the Establishment Clause:

"When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality...." [citation omitted]. If we were to hold that the federal government has a compelling interest in fostering Native American culture generally by providing special exceptions to criminal laws for Native American religious practices, we are concerned this might run up against this principle.

By adopting the federally-recognized tribes version of the interest, however, we remain on safe ground, based on the Supreme Court’s conclusion that federally recognized tribes are political—rather than religious or racial—in nature.

AP reports on the decision.

Senate Subcommittee Holds Hearing On Protecting Civil Rights of American Muslims

The U.S. Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights held a hearing yesterday on Protecting the Civil Rights of American Muslims. A webcast of the entire hearing as well as transcripts of statements made by the four witnesses and two committee members are all available on the Judiciary Committee's website. A report on the hearing from Religion News Service describes the widely publicized hearing as follows:

In many ways, the hearing led by Senate Democrats on Tuesday (March 29) was the dramatic antithesis of one House Republicans held earlier this month on homegrown Islamic radicalism.

Instead of gavel-banging, decorum prevailed. Sober statistics stood in for emotional anecdotes, and laughter, not sobs, resounded in the committee room. While an audience packed the gallery, the dais was empty save for the six senators who came and went.

But the most striking change was the second hearing’s focus: Crimes committed against American Muslims, not by them.

(See prior related posting.)

Police In India Arrest 14 For Illegal Conversion To Christianity

Today's Hindustan Times reports that in the Indian state of Orissa yesterday, police arrested 14 individuals, mostly tribals, on charges that they converted illegally to Christianity.  They were charged with violating the Orissa Freedom of Religion Act 1967 which provides that no person shall "convert or attempt to convert, either directly or otherwise, any person from one religious faith to another by the use of force or by inducement or by any fraudulent means". Police are also looking for the pastor behind their conversion.

UPDATE: A report in Christian Today clarifies the basis for the arrest of the 14 individuals who converted. Under the Orissa Freedom of Religion Act 1989, citizens wishing to convert must undergo a police inquiry of their reasons for converting. The conversion must be approved by police and a local magistrate. (See prior posting.)

Punitive Damage Claim Added In Chicago Priest Sexual Abuse Case Against Jesuits

In a previously filed clergy sexual abuse case against the Jesuit order in Chicago, plaintiffs yesterday filed a lengthy motion (full text) seeking to add a claim for punitive damages. Today's New York Times reports on the case which involves abuse committed by former priest Donald McGuire who is now serving a 25-year prison sentence. The motion in John Doe 117 v. Chicago Province of the Society of Jesus, (Cook Co. Cir. Ct., motion filed 3/28/2011) alleges that "the Chicago Jesuits were aware of McGuire's 'problems' with young boys since his ordination in the early 1960's, yet did nothing to stop his abuse of children ... despite many specific warnings regarding McGuire and his pedophilic tendencies."

Judge Backs Off Sentencing Defendants To Read Bible Study Workbook

In Houston, Texas, a new criminal court trial judge has run into a church-state controversy only a few months after taking office. KHOU News yesterday reported that Judge John Clinton offered defendants in his court an option to community service. They could read the book "The Heart of a Problem" and return to discuss it with him in a few months. The book is a Bible study workbook that promotes victorious Christian living. After Harris County lawyers raised questions, Clinton backed off his plan. He said: "All I was trying to do was help. I was told about the book. I received the book. I read the book. I thought, 'Hey this is a great book.' Again, me thinking based on my faith, not thinking in general." Clinton says any defendant who has already been sentenced to read the book can choose something else instead.

Former Alabama Chief Justice Roy Moore To Set Up Presidential Exploratory Committee

Former Alabama Supreme Court Chief Justice Roy Moore is planning to set up a presidential exploratory committee according to a report by CNN. The former judge was removed from office in 2003 for defying a federal court order to remove a large granite Ten Commandments monument that he had placed in Alabama's state courthouse. Moore is a conservative Christian and an active member of the tea party movement. His campaign will focus on repealing the health care reform law, lowering taxes, limiting government and eliminating progressive income taxes.

Closing Arguments Begin In Canadian Test of Polygamy Ban

In Canada, in the British Columbia Supreme Court, closing arguments began yesterday in the reference case testing the constitutionality of Canada's criminal ban on polygamy. The trial began in November. (See prior posting.) The Vancouver Sun yesterday reported that in his closing argument lawyer Craig Jones, representing the B.C. attorney general argued against "the position of the court-appointed amicus that the law is invalid because it was an attempt to force a white, Christian morality on society." He also argued that the polygamy ban applies to multi-party conjugal relationships involving gays and lesbians as well as heterosexuals. Thousands of pages of pleadings, transcripts and other documents from the trial are available online.

Suit Challenges Nevada Law Limiting Marriage Officiants To Clergy Or Government Officials

Yesterday's Las Vegas Sun reports that the ACLU of Nevada has filed a lawsuit in federal court against the state of Nevada and Clark County (NV) challenging the constitutionality of the state law that limits the issuance of state certificates to perform marriages to clergy, judges and commissioners and deputy commissioners of civil marriage.  The lawsuit argues that requiring private individuals to have a religious affiliation in order to perform marriage ceremonies, as is now required, violates the Establishment Clause, the Equal Protection Clause and the No-Religious Test clause of the U.S. constitution, as well as the Nevada constitution. One of the plaintiffs, Raul Martinez-- an atheist and member of the American Humanist Association-- has twice had his application for a "Permanent Certificate of Authority to Solemnize Marriages" turned down. Two other of the plaintiffs are a couple engaged to be married seeking to have a secular ceremony in a romantic location of their choosing.

UPDATE: Here is the full text of the complaint in Martinez v. Clark County, Nevada, (D NV, filed 3/27/2011), and a report on the case from Courthouse News Service.

Groups Ask EEOC To Ban Placement of Religious Employees Outside of Public View

A group of 25 religious and civil rights groups last week sent a letter (full text) to the U.S. Equal Employment Opportunity Commission complaining about federal court decisions that have permitted companies to segregate "visibly religious employees," such as Sikhs wearing turbans or Muslim women wearing  hijabs, in positions where they are not seen by company customers. The letter asks the EEOC to:

Issue written guidance clarifying that religious accommodations requiring segregation from customers in the name of corporate image constitute adverse employment actions and can never be deemed "reasonable" under Title VII.

What Is At Issue In the Hosanna-Tabor Case?

Today the Supreme Court granted certiorari in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. (See prior posting.) The petition for certiorari describes the Question Presented as follows:

The federal courts of appeals have long recognized the "ministerial exception," a First Amendment doctrine that bars most employment-related lawsuits brought against religious organizations by employees performing religious functions. The circuits are in complete agreement about the core applications of this doctrine to pastors, priests, and rabbis. But they are evenly divided over the boundaries of the ministerial exception when applied to other employees. The question presented is:

Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

There are several related and overlapping rules of law in cases in which private parties are suing religious organizations.  One is the constitutionally-based "ecclesiastical abstention" doctrine which holds that civil courts should not entangle themselves in disputes that involve questions of theological interpretation, church discipline, religious law, religious custom or ecclesiastical rule.

A related but separate question arises when a regulatory statute includes a specific exemption for religious organizations.  Here the scope of the exemption depends upon the specific statutory language. Thus a provision in the Americans With Disabilities Act allows religious organizations and schools to give an employment preference to individuals of a particular religion, and allows religious organizations to require employees to conform to the religious tenets of the organization.

The third legal rule is the one involved in Hosanna- Tabor-- the "ministerial exception." This is a judicially created exception to the application of employment discrimination laws. The exception originated out of constitutional concerns over judges imposing themselves in decisions by congregations about who will serve them as clergy. If a congregation fires a pastor for giving uninspiring sermons, the government should not decide whether that evaluation is correct.  If a synagogue refuses to employ a rabbi because he is not sufficiently traditional in his beliefs, no court should be in the business of deciding whether that is an accurate assessment.  However sometimes the reasons for firing, or refusing to hire, a member of the clergy may be ones which, in other employment contexts, would be impermissible. The action may have been based on considerations such as gender, race, age or disability. Often the parties have different views of the reasons underlying an employment decision and the court is being asked to determine the true motivation.  Where the ministerial exception applies, a court will not consider claims that improper motivations were involved. So the ministerial exception deprives clergy of employment protections available to all other employees and makes serving as a member of the clergy a risky occupation.

Hosanna- Tabor raises the question of how many other employees of religious organizations should be subject to the same risks of having no recourse when they have been dismissed for frivolous or perverse reasons having no relation to religious doctrine. The 6th Circuit held that whether an employee is a "minister" for purposes of this exemption depends on whether "the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship." It found that Cheryl Perich's duties were not primarily religious so she could pursue a claim that she was dismissed in violation of the Americans With Disabilities Act. Some other circuits have concluded that the ministerial exception applies so long as an employee of a religious organization has some religious duties or responsibilities, even if those are not the person's primary duties. That test would have precluded Perich from suing.

Supreme Court Grants Review In "Ministerial Exception" Case

The U.S. Supreme Court today granted certiorari in a case involving the scope of the "ministerial exception" to federal anti-discrimination laws.  The case is Hosanna- Tabor Church v. EEOC, (Docket No. 10-553, cert. granted 3/28/2011). (Order List.) In the case, the 6th Circuit held that parochial school teachers who teach primarily secular subjects are covered by the Americans With Disabilities Act and are not "ministerial employees" who are excepted from coverage. (See prior posting.)  Scotus blog has links to various documents in the case.

Court Rules On Discovery Motions In Clergy Sex Abuse Case

In Dotson v. Hartford Roman Catholic Diocesan Corp., 2011 Conn. Super. LEXIS 386 (CT Super., Feb. 17, 2011), a Connecticut trial court ruled on a number of discovery motions filed by a priest, two Catholic churches and the Hartford Diocese in a lawsuit by a victim of alleged clergy sexual abuse. Among its rulings were the following. The court agreed to "issue a protective order preventing the plaintiff from disseminating any videotaped deposition testimony, transcripts of such testimony and any other information obtained through discovery and not filed with the court in order to protect the parties' right to a fair trial." The court also ruled that it would inspect in camera the priest's personnel file to determine which documents should be released in discovery. The court rejected the diocese's argument that the 1st Amendment protected it from producing a secret archival file. The court said: "it is difficult for the court to imagine that the compelled disclosure of certain documents that are maintained pursuant to canon law would result in an entanglement of the court in church matters sufficient to result in a violation of the diocese's first amendment rights."

Indian Court Says Priest's Celibacy Vow Does Not Invalidate Marriage or Bequest

A court in New Delhi, India has upheld the will of a Christian priest who secretly converted to Islam, married and bequeathed property to his son. Today's Times of India reports that the priest's family challenged the validity of the will and the priest's marriage on the ground that the priest took a vow of celibacy. The court wrote: "To marry is a fundamental right of a person, being an integral part of right to life and personal liberty. Tenets of a religion may interdict its followers from becoming a priest (father ) but cannot invalidate a marriage, which is legal otherwise."

Recent Articles of Interest

From SSRN:

• Michael Heise and Gregory C. Sisk, Ideology 'All the Way Down'? An Empirical Study of Establishment Clause Decisions in the Federal Courts, (Michigan Law Review, Vol. 110, 2012).
• Mark L. Movsesian, Foreword: Laicite in Comparative Perspective, (Journal of Catholic Legal Studies, Vol. 49, 2010).
• Alexander Volokh, Everything We Know About Faith-Based Prisons, (March 17, 2011).
• Will Shen and Rohan Bruce Edward Price, Confucianism, Employee Activism and the Case for Moral Relativism, (March 18, 2011).
• Snehashish Ghosh, The Tryst of Destiny: Political Obligation and Religion, (March 25, 2011).
• Luke Goodrich, The Health Care and Conscience Debate: Obama Strikes a Blow Against Conscience, (March 15, 2011).
• Chase D. Anderson, A Quest for Fair and Balanced: The Supreme Court, State Courts, and the Future of Same-Sex Marriage Review after Perry, (Duke Law Journal, Vol. 60, No. 6, p. 1413, 2011).
• Stephen Thuku Mbaaro, Freedom of Expression and Public Order: Exploring the Need for Hate Speech Legislation in Kenya, (March 26, 2011).
• Mridushi Swarup, Protection of Scheduled Tribes Under the Indian Constitution: Promise and Performance, (March 20, 2011).
• James E. Pfander, Resolving the Qualified Immunity Dilemma: Constitutional Tort Claims for Nominal Damages, (Columbia Law Review, Forthcoming).

From SmartCILP:

• A Dialogue Commemorating the Fiftieth Anniversary of To Kill a Mockingbird's Publication. Article by Lance McMillian; response by Judy M. Cornett; reply by Lance McMillian, [Table of Contents], 77 Tennessee Law Review 701-802 (2010).

Muslim Brotherhood Could Become Important Politically In Libya

CNN on Friday reported that the Muslim Brotherhood in Libya could become an important force in a post-Gadhafi Libya. Founded in the 1950's, the Libyan Brotherhood is comprised mainly of religious educated middle class Libyans and of individuals on university campuses in Tripoli and Behghazi. Dr. Abdulmonem Hresha, a prominent member of the Libyan Brotherhood who now lives in London, says if the organization forms a political party, it will embrace a multi-party democracy, but will press for legislation based on Qur'anic principles such as the continued ban on the sale of alcohol. CNN speculates that the Brotherhood could siphon off support that might otherwise go to al Qaeda or other Islamist groups.

Recent Prisoner Free Exercise Cases

In Sayed v. Profitt, (10th Cir., March 18, 2011), the 10th Circuit rejected the contentions of a Muslim prisoner that he was entitled to a complete shower before the Jum'ah service. Contrary to the inmate's contention, the court found he could perform partial ablution at the sink in his cell and thereby comply with Muslim beliefs.

In LaPine v. Caruso, 2011 U.S. Dist. LEXIS 27987 (WD MI, March 18, 2011), a Michigan federal district court allowed an inmate to proceed against two defendants on his equal protection claim that alleges defendants limited Native American services to 3-5 minutes and did not permit the Prisoner Benefit Fund to be spent on herbs for Native American religious ceremonies.

In Bowers v. Burnett, 2011 U.S. Dist. LEXIS 27929 (WD MI, March 18, 2011), a Michigan federal district court adopted a magistrate's conclusion (2009 U.S. Dist. LEXIS 130756, July 27, 2009) that rejected a Buddhist inmate's claims growing out of the denial to him of a vegan diet. The court held: "Plaintiff's claims for declaratory and injunctive relief are moot. Plaintiff's claims against Defendants in their official capacity are barred by the Eleventh Amendment. The RLUIPA does not authorize Plaintiff's claims against Defendants in their individual capacities. Alternatively, Defendants are entitled to qualified immunity on all of Plaintiff's claims against them in their individual capacities."

In Smittle v. Nevada Department of Corrections, 2011 U.S. Dist. LEXIS 28520 (D NV, March 8, 2011), a Nevada federal district court rejected without prejudice defendants' motion to dismiss for lack of exhaustion a Native American inmate's complaint regarding relocation of the prison's sweat lodge.

In Spencer v. Whorton, 2011 U.S. Dist. LEXIS 28922 (D NV, March 7, 2011), a Nevada federal district court largely accepted the recommendation of a magistrate (2010 U.S. Dist. LEXIS 142160, Nov. 18, 2010) and dismissed, partly on mootness grounds, an inmate's complaints regarding interference with Asatru/Odinist religious practices.

In Mueller v. Jabe, 2011 U.S. Dist. LEXIS 28891 (WD VA, March 18, 2011), a Virginia federal district court concluded that a former inmate's rights under the 1st and 14th Amendments and RLUIPA were not violated when the Department of Corrections failed to permit him to observe Catholic Holy Days of Obligation b y refraining from work.

In Colliton v. Gonzalez, 2011 U.S. Dist. LEXIS 29954 (SD NY, March 23, 2011), a New York federal district court denied an inmate's motion for reconsideration of his claim that his rights were violated when he was prevented from attending Catholic Mass while housed in the close custody housing unit at Rikers Island.

In Jones v. Oconee County Jail, 2011 U.S. Dist. LEXIS 29365 (MD GA, March 22, 2011), a Georgia federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 29387, Jan. 25, 2011) and permitted an inmate to move ahead with his claim that jail authorities permitted Christian worship services but not Islamic ones, and that he was denied kosher meals that conform to his religious needs as a Muslim.

In Rivera v. Hartley, 2011 U.S. Dist. LEXIS 30005 (ED CA, March 22, 2011), a California federal magistrate judge recommend rejection of an inmate's Establishment Clause challenge to a finding that he was not suitable for parole. Plaintiff claimed the denial stemmed from his refusal to attend religion-based AA or NA programs. However the court concluded that the parole decision was based on his non-participation in any self-help programs concerning anger management or substance abuse.

In Hill v. Sisto, 2011 U.S. Dist. LEXIS 29415 (CD CA, March 223, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 29424, Jan. 26, 2011), concluding that an inmate's claim that his rights under the Establishment Clause were violated in his parole hearing is not an issue that a federal court can consider in a habeas corpus proceeding. Plaintiff claimed his rights were violated when he was required to participate in a religion-based AA or NA program without some evidence of drug or alcohol use in prison.

Muslims Claim Bad Treatment At U.S. Border Upon Entry From Canada

The Michigan Chapter of the Council on American Islamic Relations this week said that it is receiving dozens of complaints about inappropriate questions and treatment of Muslims crossing into the United States from Canada through border check points in Detroit and Port Huron, Michigan. Yesterday's Detroit News says the complaints range from those of a dozen Somali women who say they were searched in invasive and humiliating ways, to that of an Imam who was handcuffed, searched and questioned for over three hours at Detroit Metropolitan Airport. Muslims say they are often questioned by border guards about their religious practices.

Army Training Its Chaplains For Repeal of "Don't Ask, Don't Tell"

CNN reported yesterday that the Army Chaplain Corps for the last month has been training its 2900 members on what repeal of the "Don't Ask, Don't Tell" policy will mean for chaplains.Chaplains who are unable to reconcile themselves to the policy will be allowed to apply for a voluntary separation from the military. So far, no religious group that endorses chaplains has said that it will withdraw its endorsements to prevent their chaplains from serving. Indeed, so far no individual chaplain has asked for a voluntary separation. A chaplain corps spokesman said: "There's no change for the chaplain corps. We'll continue representing our endorsing groups and balance that with our role as officers and soldiers serving all."

Northwestern States Jesuit Order Reaches $166M Settlement Of Sexual Abuse Claims

The largest settlement ever in a clergy sexual abuse case has been reached between the Oregon Province of the Society of Jesus and 470 victims, most of whom were abused at Native American mission schools by Jesuit priests from the 1940's to the 1990's. CNN reported yesterday that the Province (comprised of Jesuits in five Western states), which is now in bankruptcy (see prior posting), has settled the claims for $166.1 million. Of that, $118 million will be paid by the Province's insurers. In 2007, before filing for bankruptcy, the religious order agreed to pay $50 million to to dozens of Alaska Natives who claimed sexual abuse by Jesuit priests over a 30-year period. (See prior posting.)

Federal Court Refuses To Dismiss Challenge To Zoning Denial For Bible Camp

in Eagle Cove Camp and Conference Center, Inc. v. Town of Woodboro, Wisconsin, (WD WI, March 24, 2011), a Wisconsin federal district court rejected ripeness and jurisdictional defenses put forward by a Wisconsin town in a challenge to its denial of zoning approval for a year-round Bible camp. Plaintiffs claimed the denial violated RLUIPA, the 14th Amendment's equal protection clause, the 1st Amendment's free exercise clause, freedom of worship protections of the state constitution, the federal ADA and the Rehabilitation Act. (See prior related posting.) [Thanks to Art Jaros for the lead.]

Montreal Cabbie Can Keep Some Religious Objects In Taxi Under Settlement Agreement

In Canada, Montreal cabbie Arieh Perecowicz has reached an out-of-court settlement with the Montreal taxi bureau and has agreed to drop his appeal of four tickets he received for violating a Bureau du taxi rule that bars drivers from having items or inscriptions in their cab that are not necessary for the cab to be in service. Some of the items for which Perecowicz was cited were ones reflecting his Jewish faith. (See prior posting.) According to today's Toronto Globe and Mail, under the settlement city officials will permit Perecowicz to keep two mezuzahs (small parchment scrolls) and a photo of former Lubavitch leader Rabbi Menachem Schneerson in his cab. The city will also withdraw four outstanding citations issued to Perecowicz, but the cab driver will still have to pay the four original tickets, along with fines of over $1000, which are the subject of his current appeal. In addition, the Bureau du taxi has issued a new directive to its inspectors encouraging them to show tolerance toward religious objects in cabs and not issue citations unless the religious objects pose a danger to passenger safety or are used for proselytizing.

Times Says Muslim Brotherhood Is Has Growing Political Power In Egypt

In a front page analysis of developments in Egypt, the New York Times today says:

In post-revolutionary Egypt, where hope and confusion collide in the daily struggle to build a new nation, religion has emerged as a powerful political force, following an uprising that was based on secular ideals. The Muslim Brotherhood, an Islamist group once banned by the state, is at the forefront, transformed into a tacit partner with the military government that many fear will thwart fundamental changes.

It is also clear that the young, educated secular activists who initially propelled the nonideological revolution are no longer the driving political force — at least not at the moment

Arizona Legislature Passes Bill Protecting Religious Expression and Religious Groups At Colleges

The East Valley Tribune reported yesterday that the Arizona Senate has passed HB 2565 that will bar colleges and universities from discriminating against students because of their religious beliefs or religious expression and will permit religious and political student groups to exclude members who do not share their beliefs. The bill was passed by the House earlier this month.

The bill provides that when a classroom assignment or discussion requests students' viewpoints, a student may not be rewarded or punished based on the religious content of that viewpoint. It provides that a university may not discipline a student in a counseling, social work or psychology program because the student refuses to counsel a client about goals that conflict with the student's sincerely held religious belief so long as the student consults with the instructor to determine the proper course of action to avoid harm to the client. The bill goes on to provide that universities may not refuse to recognize student groups because of the religious, political or philosophical content of the group's speech, including worship.  It provides that political and religious student groups may select leaders and members, resolve disputes and order the group's internal affairs according to their political or religious mission. Finally the bill assures that students have the right to speak, carry sign and distribute flyers in public forums unless the university has a compelling interest to regulate the speech.

UN Human Rights Council Adopts Resolution on Freedom of Belief That Drops "Defamation of Religion" Concept

In a major policy shift, the 47-member United Nations Human Rights Council yesterday unanimously adopted a Resolution on Freedom of Religion or Belief (full text) which omits any reference to the concept of "defamation of religion" and instead focuses on the individual's right to freedom of belief.  Reuters and the Washington Post both quote the U.S.-based Human Rights First campaign that called the resolution "a huge achievement because...it focuses on the protection of individuals rather than religions." For many years, the Organization of the Islamic Conference had pressed to create a concept of "defamation of religion" that has been widely criticized in the United States and by a number of other Western countries. (See prior posting.) Muslim countries set aside that 12-year campaign and joined in approving yesterday's resolution.

The U.S. Commission on International Religious Freedom issued a statement applauding the Human Rights Council's action.  USCIRF said in part that it welcomes the Council's "significant step away from the pernicious 'defamation of religions' concept."  It explained:

The defamation concept undermines individual rights to freedom of religion and expression; exacerbates religious intolerance, discrimination, and violence; and provides international support for domestic blasphemy laws that often have led to gross human rights abuses. The Organization of the Islamic Conference (OIC) has promoted this flawed concept at the United Nations for more than a decade.

USCIRF and others, including the State Department, members of Congress, and NGOs, have worked hard against the defamation of religions concept for years. USCIRF specifically applauds Secretary Clinton and her team for today’s result. We also thank Representatives Eliot Engel (D-NY), Christopher Smith (R-NJ), Shelley Berkley (D-NV), and Frank Wolf (R-VA), for their leadership roles on this issue....

Egypt Adopts New Law On Political Parties Barring Parties Based On Religion

M and C reports that Egypt's interim cabinet on Wednesday approved a new law that creates a framework for creating political parties.  Reuters has summarized the provisions of the new law:

* The parties' principles, programmes, activities and selection of leaders and members must not be based on religion, geography or race. There should be no discrimination on the basis of sex, language, ethnicity or religion.
* Parties must not establish military or paramilitary wings, must not be part of any foreign political organisation and must declare their principles, goals and financial means.
* Parties must provide written notification of their intention to begin work to a parties committee made up of judges.... The notification must be signed by 1,000 founder members....
* Parties will enjoy legal status and can start work 30 days after providing their paperwork to the parties committee, as long as the committee does not object....

Al Masry Al Youm says that Coptic Christians welcome the new law.  A member of the Muslim Brotherhood says he is preparing to create a party that will not be religious based. The Muslim Brotherhood itself will apparently be able to continue to exist since it is a political group, not a political party.

Company's Faith-Based Sales Training Challenged By Former Employee

Yesterday's Pittsburgh (PA) Tribune-Review reports on a lawsuit filed against a Beaver County (PA) bathroom remodeling company by a woman who alleges she was forced out of her job with the company by the company's insistence that she attend faith-based training sessions to increase her trust in God.  Jo A. Yochum says that when she was hired by Bath Fitter of Pittsburgh, she agreed to have $90,000 withheld from the commissions on her first $3 million in sales to pay for a specialized sales training course. She says the course turned out to be little more than religious proselytizing and indoctrination. The company says that Yochum had an opportunity to review the training program before she accepted it, and that she previously endorsed the training program.

Suit Challenges New York City's Disclosure Requirements For Crisis Pregnancy Centers

A federal lawsuit was filed yesterday on behalf of a number of crisis pregnancy centers challenging on 1st Amendment grounds New York City's recently-enacted ordinance that requires pregnancy services centers to make various disclosures about the services they do and do not offer. The law requires centers to disclose (in Spanish and English) on a sign in their waiting room, on their website, in any ads and orally to clients whether they provide referrals for abortion or contraceptive services or prenatal care . They must also disclose whether they have a medical provider on staff. (See prior posting.) The complaint (full text) in Evergreen Association, Inc. v. City of New York, (SD NY, filed 3/24/2011), alleges that the ordinance violates state and federally protected freedoms of speech, association, assembly and the press and that it is unconstitutionally vague in defining the centers and the kinds of ads that are covered. American Center for Law and Justice which filed the lawsuit issued a press release emphasizing their claim that the law "unconstitutionally compels Plaintiffs to speak messages that they have not chosen for themselves, with which they do not agree, and that distract from and detract from the messages they have chosen to speak."

Teaching of Religion In Australian Schools Is Challenged

In Australia, a claim has been filed with the Equal Opportunity Commission against the state of Victoria challenging the teaching of religion in state schools. ABC News reported yesterday that parents claim that if their children opt out of religious classes, they are sometimes left unsupervised. They claim that it is discriminatory to force young children to identify themselves as non-believers and walk out of the classroom.

Florida Judge Issues Explanatory Opinion In Mosque Arbitration Case

On Tuesday a Florida state circuit court judge issued a written opinion in Mansour v. Islamic Education Center of Tampa, Inc., (FL Cir. Ct., March 22, 2011), in order to "discuss the facts, procedural history and analysis" that led to a now-controversial order that Islamic law would be used in deciding whether to enforce an arbitration award between a mosque and certain trustees of the mosque who had been removed from office. (See prior posting.) The court explained:

From the outset of learning of the purported arbitration award, the court’s concern has been whether there were ecclesiastical principles for dispute resolution involved that would compel the court to adopt the arbitration decision without considering state law. Decisional case law both in Florida and the United States Supreme Court tells us that ecclesiastical law controls certain relations between members of a religious organization, whether a church, synagogue, temple or mosque....

The court has concluded that as to the question of enforceability of the arbitrator's award the case should proceed under ecclesiastical Islamic law.... The court will require further testimony to determine whether the Islamic dispute resolution procedures have been followed in this matter.

[Thanks to Michael A. Helfand via Religionlaw for the lead.] 

9th Circuit Continues Ban On Same-Sex Marriages In California As Appeals Go On

Scotus Blog reports that the 9th Circuit yesterday, in the ongoing challenge to the constitutionality of California's Proposition 8, refused to lift its earlier order barring same-sex marriages while appeals of the district court's invalidation of Prop 8 were proceeding through the courts. Yesterday's order (full text) in the case (which is now captioned Perry v. Brown) said the court was denying plaintiffs' motion "at this time." Currently the case is winding its way through the courts on the issue of whether plaintiffs have standing to challenge Proposition 8. (See prior posting).

Recent Prisoner Free Exercise Cases

In Coleman v.Caruso, 2011 U.S. App. LEXIS 5328 (6th Cir., March 16, 2011), the 6th Circuit rejected an inmate's claim that prison policy on administrative segregation violates prisoners' free exercise rights as protected by RLUIPA.  The court concluded that limits on television available and on battery operated devices in administrative segregation did not place a substantial burden on the free exercise of religion.

In Ajaj v. Federal Bureau of Prisons, 2011 U.S. Dist. LEXIS 26393 (D CO, March 10, 2011), a Colorado federal district court rejected on various grounds, including failure to allege personal participation by various defendants in the alleged violations, a Muslim inmate's complaints that his practice of religion was burdened by lack of halal meals, and interference with his ability to celebrate religious holidays, participate in congregational prayer and obtain certain religious items.

In Greenwood v. Maketa, 2011 U.S. Dist. LEXIS 26911 (D CO, March 3, 2011), a Colorado federal district court allowed an inmate to proceed against some defendants named in the suit on his complaint that he was not allowed to mail out religious study guides, and that despite his switch from Christianity to the Muslim faith he is being forced to eat non-kosher meals and was not [sic.] removed from the Ramadan list.

In Knight v. Mulvaney, 2011 U.S. Dist. LEXIS 26778 (WD MI, March 15, 2011), a Michigan federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 26649, Feb. 4, 2011) and dismissed claims by an inmate (who has now been released) that his rights were violated when he was designated a security threat group leader for practicing the tenets of Nation of Islam in organizing NOI services, and for possessing religious literature from the group.

In Smith v. California Board of Parole Hearings, 2011 U.S. Dist. LEXIS 26876 (CD CA, March 14, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 26849, Feb. 9, 2011), and rejected an inmate's claim that his Establishment Clause rights were violated when, in the hearing that led to his denial of parole, board members discussed his failure to continue going to AA/NA programs. Petitioner said he had objections to the religious nature of the programs.

In Riley v. Beard, 2011 U.S. Dist. LEXIS 27092 (MD PA, March 14, 2011), a Pennsylvania federal district court held that RLUIPA was not violated by a prison policy that barred Muslim prisoners from consuming special foods available for purchase for Muslim religious feasts when they did not have money to pay for them. Inmates who cannot pay are allowed to celebrate the feast with the regular prison menu.