Religion Clause

Tuesday, April 12, 2011

State Judge Tells Administrator of FLDS Trust To Ignore Federal Court Order

As previously reported, last week Utah federal district judge Dee Benson signed a temporary order giving control of the United Effort Plan Trust back to the FLDS Church. (See prior posting.) Benson had already ruled that the efforts of Utah state courts to reform the trust were unconstitutional. Now, according to yesterday's Salt Lake Tribune, the state judge who has been presiding over the attempts to reform the trust has ordered the special trust administrator she has appointed not to turn assets or documents over to the Church until appeals in state and federal courts are resolved. Third District Judge Denise Lindberg ordered administrator Bruce Wisan not to comply with the federal court order, saying: "Until all these thorny issues are finally resolved by the appropriate appellate courts ... this court must continue its oversight of the trust." However she also ordered Wisan not to make major changes while the appeals are underway.

D.C. Vouchers In, Local Funding of Abortions Out, In Budget Bill; City Officials Protest

The budget deal reached Saturday night between the President and Congress apparently includes two controversial riders supported by Republicans relating to Washington, DC. AP reports that the compromise reinstates a ban on the District of Columbia using its own local tax funds to pay for abortions for poor women. Also, according to World Magazine, the President agreed to include the SOAR Act as part of the final budget bill. The act reopens the voucher program that provides funds for poor parents in the District of Columbia to send their children to a school of their choice, including private and parochial schools. The bill also increases the amount of the scholarship granted to each student to between $8000 and $12,000 per child, depending on grade level. The majority of D.C. city council supports the voucher program, but the mayor and D.C.'s Congressional delegate oppose it. Still unclear is whether the final bill will also ban the use of local funds for needle exchange programs. On Monday, a demonstration near the Hart Senate Office Building protested the treatment of D.C. in the bill. According to Politico, D.C. Mayor Vincent Gray and six members of city council were arrested in the protest.

RLUIPA Lawsuit Involves Dispute Over The Current Zoning Designation of Shopping Center

A Bolingbrook, Illinois church has filed a federal lawsuit under RLUIPA alleging that the village is substantially burdening its free exercise of religion by refusing to allow it to operate in Bolingbrook Commons, a shopping center that is already zoned to permit churches and in which another church is located. The complaint (full text) in Liberty Temple Full Gospel Church, Inc. v. Village of Bolingbrook, (ED IL, filed 3/30/2011), alleges that village officials claim the shopping center is zoned B-2 (which does not allow churches), even though the village zoning map designates the area as B-4 (commercial). According to Bolingbrook Patch, the current zoning maps show Bolingbrook Commons in an area colored orange with no B-2 label near it. Village officials say the maps have been removed from the Village website in order to update them so that the zones show more clearly. The complaint claims the mayor told a church Elder that the village already has enough churches and that the landlord should never have executed a lease to the church without the mayor's permission.

UPDATE: Chicago Tribune reports (4/12) that Liberty Temple Full Gospel Church has been granted a temporary restraining order by the federal district court that will allow it to open its church in Bolingbrook Commons. Also, here is the zoning map that was at issue (via Tom Ciesielka).

Monday, April 11, 2011

Science Teacher's Appeal of Firing Remanded To State Court

In January, the Mount Vernon, Ohio Board of Education fired middle school science teacher John Freshwater on the basis of a referee's report that concluded Freshwater used his classroom to advance his Christian religious views. (See prior posting.) Pursuant to Ohio Rev. Code 3319.16, Freshwater appealed his dismissal to a state common pleas court. The school board, invoking 28 USC 1441, sought to remove the case to federal court based on the court's federal question jurisdiction. Last week in Freshwater v. Mount Vernon City School District Board of Education, (SD OH, April 5, 2011), an Ohio federal district court invoked the Younger abstention doctrine and remanded the case to state court. Today's Columbus Dispatch reports on the decision.

Demonstrators Against France's Ban On Muslim Veils Are Arrested

In Paris on Saturday, French police arrested 59 people who attempted to demonstrate at Place de la Nation to protest the taking effect today of France's ban on Muslim women wearing the niqab or burqa-- which involve full face veils-- in public. (See prior posting.) AP reports that all but 6 of those arrested have been released. Police were also ordered to arrest two others traveling to France from Britain and Belgium. Paris police banned Saturday's rally on the grounds that it threatened public order. The demonstration was called by the group Unicite Tawhib, which is associated with websites that call for Islam to dominate France and the world. Police say Jewish groups and others had planned counter protests.

UPDATE: Global News reports that as the ban on the full-face veil took effect on Monday, several women wearing veils appeared in front of Paris' Notre Dame Cathedral. Two of the women were arrested for taking part in an unauthorized protest. Women can be fined up to $215 (US) or required to attend special citizenship classes. Police have been instructed not to forcibly remove veils from women.

Sunday, April 10, 2011

Another Rabbi Pleads Guilty To Money Laundering In New Jersey Court

On Friday, Orthodox Rabbi Mordchai Fish plead guilty to using purported charitable organizations to launder some $900,000 in 15 separate transactions with developer Solomon Dwek, who became a cooperating witness for the government. According to a release by the U.S. Attorney's Office, Fish received approximately 10% of the funds for his efforts. The Information filed in the case also seeks forfeiture of $90,000 of funds from Fish. Fish has agreed to the forfeiture. Fish's arrest was part of a large sting operation conducted in 2009 that led to charges against 44 public officials and rabbis. (See prior posting.) Last month, another rabbi arrested in the sting operation plead guilty as well. (See prior posting.) Yesterday's Newark Star-Ledger, reporting on Fish's plea, describes the efforts Fish made to hide his participation-- changing cell phones, speaking in a combination of English, Yiddish and Hebrew, and referring to laundered money as "gemoras" in order not to use the term "cash". Sentencing is scheduled for July 28 where Fish is likely to receive a sentence between 33 months and 5 years.

Town Reverses Itself On Roadside Bible Verse Sign

In reaction to a lawsuit filed against it last month (see prior posting), the town of Chichester, New Hampshire's Planning Board has reversed itself and by a vote of 5-2 has agreed to permit an electronic roadside sign that displays a different Bible verse every day to be put up on property along Route 4. A press release by Alliance Defense Fund says that opponents originally argued that the sign might display "objectionable" Bible verses and might distract drivers more than commercial signs.

Suit Challenges High School's Refusal To Recognize Pro-Life Student Club

A federal court lawsuit was filed last week in Minnesota challenging a public high school's refusal to recognize a pro-life student group, the ALIV (All Life Is Valuable) Club, as an official student organization. The complaint (full text) in ALIV Club v. Independent School District #885, (D MN, filed 4/7/2011), alleges that the school refused recognition because the club "does not support the student body as a whole." The suit was filed by the club and a Christian student who is a member and leader of the group. It alleges that the school district has violated the Equal Access Act, the freedom of expression and religion provisions of the 1st Amendment, as well as the equal protection and due process clauses of the 14th Amendment. Friday's Minnesota Independent reported on the case.

Recent Prisoner Free Exercise Cases

In Sareini v. Burnett, 2011 U.S. Dist. LEXIS 34525 (ED MI, March 31, 2011), a Michigan federal district court permitted a Muslim plaintiff to move ahead with his complaint that prison authorities cross-contaminate the vegetarian meal option offered to inmates. However it rejected his claim that his rights were violated when he was denied a halal diet and not permitted to possess certain religious items. The court also rejected a claim that prisoner banquet restrictions prevented accommodation of Muslim religious holidays. The magistrate's recommendation is at 2010 U.S. Dist. LEXIS 142414, Dec. 23, 2010.

In Hennis v. Tedrow, 2011 U.S. Dist. LEXIS 34705 (WD PA, March 31, 2011), a Pennsylvania federal district court rejected claims by a practitioner of "orthodox Nazarite vow Rastafarianism" that his rights were violated when he was told to cut his dreadlocks, and was denied vegetarian meals during a lock down. The court dismissed without prejudice for failure to exhaust administrative remedies his claim that he was deprived of his religious headgear.

In Inzunza v. Moore, 2011 U.S. Dist. LEXIS 34610 (ND TX, March 31, 2011), a Texas federal magistrate judge rejected an inmate's complaint that House of Yahweh members are not permitted to worship together as a separate religious group. There is no outside volunteer presently available to lead the services.

In Brown v. Graham, 2011 U.S. Dist. LEXIS 34345 (ND NY, March 31, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 34383, March 30, 2011), and dismissed an inmate's complaint that his rights were violated when on one occasion he was deprived of a kosher meal.

In Hemphill v. Jones, 2011 U.S. Dist. LEXIS 35040 (ED OK, March 31, 2011), an Oklahoma federal district court rejected a claims by an adherent of nations of Gods and Earths that his rights were violated when on one occasion his vegetarian/ non-pork food tray was cross contaminated, and when a package containing religious items-- vials of oil and home made soap-- was diverted for inspection and never delivered to him.

In Corouthers v. Flowers, 2011 U.S. Dist. LEXIS 35004 (ND FL, March 16, 2011), a Florida federal magistrate judge recommended dismissing a Muslim inmate's claim for $30,000 in damages and mandatory injunctive relief. Plaintiff objected to Muslim prison chaplains calculating the dates of Ramadan using a calendar rather than the actual sighting of the moon.

In Hartmann v. California Department of Corrections and Rehabilitation, 2011 U.S. Dist. LEXIS 36409 (ED CA, March 24, 2011), a California federal district court dismissed a claim against the Secretary of the California Corrections Department complaining that prisons do not employ Wiccan chaplains. The complaint lacked allegations that connected the Secretary to the challenged policy.

In Kirksey v. Frank, 2011 U.S. Dist. LEXIS 36297 (D HI, March 31, 2011), an Hawaii federal district court rejected a Muslim inmate's claim that he was denied a diet consistent with his religious belief and was denied access to religious items.

In Brady v. Marsh, 2011 U.S. Dist. LEXIS 36685 (ED CA, March 28, 2011), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that while in the Solano County jail he was not provided with a kosher diet or a Torah.

In Cacciaguidi v. State, (ID App., April 5, 2011), an Idaho appeals court rejected an inmate's claim that her free exercise rights were violated when the staff of a drug rehabilitation program did not permit her to say "God" in therapeutic community proceedings. It also rejected her claim that her free exercise rights were violated by not being able to defend herself against false charges from other participants in the therapeutic community.

In Sisneroz v. Whitman, 2011 U.S. Dist. LEXIS 37240 (ED CA, April 5, 2011), a California federal district court rejected claims by a civil detainee that his free exercise rights were violated when he was not permitted to participate in religious services while being held in jail.

In Maxwell v. Golden, 2011 U.S. Dist. LEXIS 33944 (ED AR, March 29, 2011), an Arkansas federal district court accepted most of a magistrate's recommendations (2011 U.S. Dist. LEXIS 37587, Feb. 7, 2011), and held that an inmate's free exercise rights were not violated by denying him the right to correspond with a female inmate to whom he claimed to be married. Plaintiff claims they were married pursuant to their G-Doffeeist religion. The court permitted plaintiff to proceed with his free expression challenge to the inmate correspondence policy that required him to produce a marriage license or court documentation of his marriage to correspond with his wife.

Saturday, April 09, 2011

Dutch Parliament Will Vote On Banning Kosher and Halal Slaughter

Netherlands Parliament is expected to vote later this month on a bill that, if passed, will outlaw kosher and halal slaughtering of animals. AP reports that the bill would eliminate the exemption that now allows slaughter according to Jewish and Muslim religious requirements without animals first being stunned. The bill may pass because it is supported by an alliance of the Party of the Animals, an animal rights party, and the far right Freedom Party (which is particularly hostile to Dutch Muslims). Centrist parties say the bill is a distraction from the much more serious problem of abuses at regular slaughterhouses. Netherlands' Christian Democratic Party opposes the bill because it will tarnish the country's image as a haven of tolerance for religious minorities. Netherlands was one of the first European countries to allow Jews to practice their religion openly. (Background.)

Ambassador Responds To IG's Critical Report On His Religious Writing And Speeches

U.S. Ambassador to Malta, Douglas Kmiec, an important Catholic supporter of President Obama, reacted yesterday to a report that the State Department Inspector General's Office had released earlier this week criticizing him for spending too much time on writing and speaking on subjects outside his core mission. These writings and speeches have focused on issues such as his religious beliefs and abortion. (See prior posting.) According to AP, Kmiec said in part:

I must say that I am troubled and saddened that a handful of individuals within my department in Washington seem to manifest a hostility to expressions of faith and efforts to promote better interfaith understanding. Our constitution proudly protects the free exercise of religion - even for ambassadors.

State Department Releases 2010 Country Reports On Human Rights Practices

Secretary of State Hillary Clinton yesterday released the State Department's 2010 Country Reports on Human Rights Practices. The reports cover in detail human rights conditions in over 190 countries. The introduction has the following to say about religious freedom around the world:

In Saudi Arabia in 2010, the government restricted access to the Internet.... The official Communications and Information Technology Commission (CITC) ... blocked sites, including pages about Hinduism, Judaism, Christianity, and certain forms of Islam deemed incompatible with Sharia law and national regulations....

In Pakistan, religious freedom violations and violence and discrimination against religious minorities continued. The blasphemy laws were used to harass religious minorities as well as vulnerable Muslims or Muslims with minority views. (In the first two months of 2011, two senior government officials who publicly challenged these laws were brutally killed.) In Saudi Arabia, there were severe restrictions on religious freedom and discrimination on the basis of religion was common. In China, the government continued to demonize the Dalai Lama and harshly repress Uighur Muslims in Xinjiang and Tibetan Buddhists. There were reports of increases in anti-Semitic acts around the world, including the desecration of cemeteries, graffiti, and blood-libel rhetoric, as well as Holocaust denial, revisionism, and glorification. There have also been spikes in expressions of anti-Semitism during events in the Middle East.

Secretary Clinton also announced the creation of a new website, humanrights.gov that offers "one-stop shopping for information about global human rights from across the United States Government."

Friday, April 08, 2011

Control of United Effort Plan Trust Given Back To FLDS Church

Following up on his January decision holding unconstitutional the five years of Utah state court proceedings aimed at reforming the polygamous FLDS Church's United Effort Plan Trust, federal district judge Dee Benson on Thursday signed a temporary order handing control of the Trust back to FLDS Church leaders. Deseret News reports on the court's action. The court's January decision is already under appeal to the 10th Circuit.

Arrest of Mardi Gras Demonstrator For Disorderly Conduct Upheld

In Bethel v. City of Mobile, 2011 U.S. Dist. LEXIS 36972 (SD AL, April 5, 2011), an Alabama federal district court found that police officers had probable cause to arrest a Mardi Gras demonstrator for disorderly conduct. Plaintiff Orlando Bethel, along with his wife and three children, attended the Mobile (AL) Mardi Gras parade in order to evangelize their religious beliefs. They carried signs with messages such as: "God hates you wicked baby killing whores repent." A woman attending the parade complained to police officers that Bethel had shouted at her 13-year old daughter (who was sitting on her boyfriend's lap), calling her a whore and a prostitute. Police took Bethel and his family into custody and seized their signs. The court concluded that the language used by Bethel arguably were fighting words justifying the arrest. It rejected his argument that his arrest violated his 1st Amendment and equal protection rights, and that seizure of his signs violated the 4th Amendment.

Wal-Mart Need Not Accommodate Religious Belief In Admonishing Gay Fellow-Employees

In Matthews v. Wal-Mart Stores, Inc., (7th Cir., March 31, 2011), the U.S. 7th Circuit Court of Appeals upheld Wal-Mart's firing of an employee for violating the company's anti-harassment policy. Stock clerk Tanisha Matthews was fired after she screamed at a gay employee that God does not accept gays and they will go to hell. Matthews sued Wal-Mart for religious discrimination under Title VII of the 1964 Civil Rights Act, claiming that the belief that gays will go to hell is part of her Apostolic Christian faith. The court said:

[I]f Matthews is arguing that Wal-Mart must permit her to admonish gays at work to accommodate her religion, the claim fails.... In this case, such an accommodation could place Wal-Mart on the "razor’s edge" of liability by exposing it to claims of permitting workplace harassment.

Chicago's Edge on Tuesday reported on the decision.

State Department Says Ambassador Spends Too Much Time On Religious Writing

AP reports that yesterday the State Department's inspector general released a report (full text) critical of U.S. ambassador to Malta, Douglas Kmiec. The report says that Kmeic spends too much time writing and speaking on extraneous subjects. AP says these have included writing and speaking on his religious beliefs and issues such as abortion. This detracts from his attention to core mission goals such as maritime security and promoting American business. While Kmiec is widely respected in Malta, apparently embassy staff is unhappy about the amount of time they have to spend reviewing his writing. Kmiec says he has a special mandate to promote President Obama's interfaith initiatives. Before being confirmed as ambassador, Kmiec was on the faculty of Pepperdine University Law School. From 2001-03 he was dean at Catholic University's law school. [Revised]

Church Denied Preliminary Injunction In Zoning Dispute

In Merrimack Congregation of Jehovah's Witnesses v. Town of Merrimack, 2011 U.S. Dist. LEXIS 36090 (D NH, March 31. 2011), a New Hampshire federal district court agreed with the conclusion previously reached by a magistrate judge (see prior posting) that a Jehovah's Witness congregation was not entitled to a preliminary injunction to override a zoning denial by the Merrimack (NH) Zoning Board of Adjustment. The congregation, which wished to build a Kingdom Hall in an area zoned residential, argued that the zoning ordinance as applied to churches is an unconstitutional prior restraint. The court disagreed, holding in part that "the location of a church, absent other expressive issues, does not implicate the right to free expression." It also concluded that the zoning restriction does not burden the free exercise of religion.

Thursday, April 07, 2011

Malaysian Official Says Non-Muslims Quoting Qur'an To Question Islam Can Be Prosecuted

A Malaysian government minister says that non-Muslims who quote verses from the Qur'an for ulterior motives or to question Islamic practices may be prosecuted under the country's Penal Code (Sec. 295 - 298A) for insulting the Qur'an. Today's edition of The Star reports that Minister in the Prime Minister’s Department Datuk Seri Jamil Khir Baharom says there is no law prohibiting non-Muslims from reciting verses from the Qur'an if it is done to understand Islam. However a National Fatwa Council edict issued last December concludes that non-Muslims who quote or interpreted Quranic verses freely on their own understanding and without sincerity are to be seen as insulting the Qur'an.

British Localism Proposal Raises Religious Discrimination Questions

In Britain last December, the government proposed a new Localism Bill, designed to shift power away from central government to local communities and local organizations. (Background.) A part of the proposal is a "community right to challenge" that gives local voluntary and community groups the right to express an interest in taking over the offering of a local service. It also includes a "community right to bid" provision. This calls for local communities to give private community organizations the right to bid on local facilities that are important to community life when the community decides to sell or close them. In a press release today, the British Humanist Association raises the question of whether community services will be offered on a discriminatory basis if religious organizations take them over under these provisions. The government says that these groups will be subject to the provisions of the Equality Act 2010, but it is also seeking ways to prevent extremist groups from taking over local services. A British Humanist Association spokesperson says this is not sufficient, fearing that religious groups will be allowed to discriminate, in part because of exceptions currently in the Equality Act.

Conservative Christian College Prof May Have Free Speech Claim In Denial of Promotion

In Adams v. Trustees of the University of North Carolina- Wilmington, (4th Cir., April 6, 2011), a conservative Christian college faculty member alleged discrimination in the university's refusal to promote him to full professor. He expressed his views largely as a columnist and on radio and television rather than in traditional research. He was also an activist advisor to Christian student groups. The court rejected his Title VII claim, finding he had not proven religious discrimination. However it held that he may have a First Amendment claim based on the right of public employees to be free of retaliation for their speech as a citizen on matters of public concern:

Adams' speech was clearly that of a citizen speaking on a matter of public concern. Adams’ columns addressed topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion, and morality.

At issue, however, was how to interpret the Supreme Court's 2006 decision in Garcetti v. Ceballos which held that "when a public employee makes a statement pursuant to his 'official duties,' he does not ‘speak as a citizen'." The 4th Circuit concluded:

Put simply, Adams' speech was not tied to any more specific or direct employee duty than the general concept that professors will engage in writing, public appearances, and service within their respective fields. For all the reasons discussed above, that thin thread is insufficient to render Adams’ speech "pursuant to [his] official duties" as intended by Garcetti.

The court remanded the case to the district court for it to determine whether the other elements of a First Amendment claim were present-- whether the employee's interest in speaking on the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public, and whether the employee's speech was a substantial factor in the adverse employment decision. AP reports on the decision.

Released Time Program With Academic Credit Is Upheld

A South Carolina federal district court on Tuesday upheld the constitutionality of the "released time" program of a Spartanburg (SC) high school. In Moss v. Spartanburg County School District No. 7, (D SC, April 5, 2011), the court concluded that religious instruction offered under the South Carolina Released Time Credit Act which allows academic credit to be given for a "released time" class is consistent with the Establishment Clause. Under the school's program, a grade in the religion course was awarded by an accredited Christian high school, and that credit is then accepted by the public school system. Applying the Lemon test, the court said:

[T]he School District’s released time policy is facially neutral, favoring no particular religion or denomination. Further, the policy’s plain language and the School District’s implementation of the released time policy evidence an intent to passively accommodate religion and to insulate itself from pervasive monitoring and oversight of the overtly religious instruction.

Reporting on the decision, GoUpstate explains:

The elective course in question has been offered to Spartanburg High School students since 2007 and is held next door to the high school at St. Christopher's Episcopal Church. Spartanburg County Bible Education in School Time teaches the course, and credit is transferred to Spartanburg High from Oakbrook Preparatory School, a private school in Spartanburg.

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.

Wednesday, April 06, 2011

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.

Tuesday, April 05, 2011

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.

Monday, April 04, 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).

Sunday, April 03, 2011

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.

Saturday, April 02, 2011

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."

Friday, April 01, 2011

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.

Thursday, March 31, 2011

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.]

Wednesday, March 30, 2011

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.)

Tuesday, March 29, 2011

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.