Friday there was yet another development in Fundamentalist Church of Jesus Christ of Latter Day Saints v. Lindberg, this time in response to an emergency motion filed by state judge Denise Lindberg. Attempting to defuse the battle between state and federal courts over what to do with the FLDS United Effort Plan Trust (see prior posting), the 10th Circuit Court of Appeals issued a stay of both the preliminary injunction issued by the federal district court that handed the trust back to the FLDS Church and the district court order issued to state judge Denise Lindberg to show cause why she should not be held in contempt for defying the federal court order. The 10th Circuit ordered that no action should be taken to implement or enforce either of these. (Full text of stay order). All the parties were invited to brief the issues by April 22, and the FLDS Church was instructed to cover at least the issues of laches, res judicata, judicial immunity, and the propriety of injunctive and/or declaratory relief against Judge Lindberg. The Deseret News reports on the 10th Circuit's action.
UPDATE: AP reports that on April 27, the 10th Circuit extended the stay while the appeal is pending.
Saturday, April 16, 2011
Friday, April 15, 2011
Israeli Rabbi Seeks Imam's Help In Preventing Sale Of Leavened Products During Passover
With the Jewish holiday of Passover approaching-- it begins Monday night-- Israeli authorities are again faced with issues of enforcing the country's law against businesses publicly displaying leavened products (hametz) for sale or consumption. (See prior related posting.) Apparently in recent years, the northern Israeli city of Akko has become a center for non-religious Jews seeking to buy hametz. The ban on selling hametz does not apply to Akko's mostly-Arab Old City. YNet News today reports that Akko's chief rabbi, Yosef Yashar, has approached the influential imam of the city's al-Jazar Mosque, Sheikh Samir Asi, and asked him to attempt to to get Arab business owners to voluntarily refuse to sell hametz to Jews during Passover. The sheikh says he will ask business owners to honor the rabbi's request, but he is not certain how many will comply.
Hungary's Controversial New Constitution To Be Voted On Monday
In Hungary, civil society groups have called protests for today to express their opposition to the draft new Constitution (summary of changes) for the country. According to Reuters, the new Constitution has been a long-held goal of the Fidesz Party that last year won a majority of the seats in Hungary's National Assembly. The Party says that the new Constitution, replacing Hungary's Communist-era document, will complete the democratization process that began in 1989. Critics of the new document, whose text was released only last month, say it reflects Christian and nationalist thinking. A European Parliament group says that while the new document prohibits discrimination on the basis of race, sex, disability, language, religion, political views, national or social origins, ownership of assets, or birth, it does not ban discrimination on the basis of sexual orientation or gender identity. Among the other controversial provisions are ones that protect the life of the fetus beginning at conception and a provision that defines marriage as the union of a man and a woman. It is expected that the National Assembly will approve the new constitution on Monday and that it will come into force on January 1, 2010. Here is the full text of the proposed Constitution in Hungarian.
School Board Reluctantly Bans Administrators From Sending Religious Messages To Employees
In Florence, South Carolina yesterday, the Florence School District 1 board unanimously but reluctantly banned administrators from sending religious messages to school employees. According to SCNow, the interim superintendent and a school principal had been sending e-mail and memos containing religious messages, and sometimes overt proselytization, to school district employees. The e-mails included daily scriptures, bits of Christian theology and suggested hymns for times of stress. Americans United for Separation of Church and State had complained to the school board earlier this month about the situation.
Federal-State Court Judges In Utah Continue To Spar Over FLDS Trust
Tensions are growing between Utah state and federal courts over state attempts to reform the FLDS United Effort Plan Trust. As previously reported, the Utah Federal District Court held that the state had acted unconstitutionally in its five-years of proceedings and last week issued an preliminary injunction handing control of the Trust back to the FLDS Church. In response, state court Judge Denise Lindberg ordered special fiduciary Bruce Wisan to ignore the federal court order until the issues are sorted out on appeal. (See prior posting.) Now, in the latest development, the federal court yesterday issued an order (full text) requiring Judge Lindberg to appear on Monday to show cause why she should not be held in contempt for ignoring and countermanding the federal court's preliminary injunction. According to KCSG-TV News, originally the show cause hearing was scheduled for today (Friday), and when Judge Lindberg's attorney told federal judge Dee Benson that Lindberg would be in Arizona at her uncle's funeral, Benson suggested he might dispatch federal marshals to force Lindberg to appear before she left Utah.
Justice Department Joins Challenge To Jail's Policy On Religious Literature
The Justice Department announced Wednesday that it has filed a lawsuit against the Berkeley County, South Carolina sheriff's office, seeking to join a suit already filed by the ACLU challenging the mail policy at the Berkeley County Detention Center. The jail prohibits sending of any books, magazines or newspapers to inmates, except for copies of the Bible. (See prior posting.) The Justice Department alleges that the detention facility, in violation of RLUIPA, burdens inmates' practice of religion by denying them religious texts other than the Bible and violates the Establishment Clause by favoring the Bible over texts used in other religious traditions. The suit also claims more broadly that the ban on non-religious literature violates the 1st Amendment's free speech provisions.
7th Circuit: No Standing To Challenge National Day of Prayer
In Freedom From Religion Foundation, Inc. v. Obama, (7th Cir., April 14, 2011), the U.S. 7th Circuit Court of Appeals held that Freedom from Religion Foundation and its members lack standing to challenge either the constitutionality of the federal statute that creates a National Day of Prayer or the Presidential proclamations issued under that statute. While all three judges concluded that plaintiffs lack standing, the opinion by Judge Easterbrook (joined by Judge Manion) swept more broadly in doing so that did the concurring opinion by Judge Williams.
As to the statute-- 36 USC Sec. 119-- which directs the President to issue a Proclamation each year declaring the first Thursday in May as a national day of prayer, Judge Easterbrook concluded that since it merely imposes a duty on the President, only the President is injured enough by the statute to have standing. Others cannot "object to a statute that imposes duties on strangers." The President's proclamation, on the other hand, are addressed to plaintiffs, like all other citizens. However since the Proclamations merely make a request that citizens are free to deny, no one is injured by them. Judge Easterbrook continued:
As to the statute-- 36 USC Sec. 119-- which directs the President to issue a Proclamation each year declaring the first Thursday in May as a national day of prayer, Judge Easterbrook concluded that since it merely imposes a duty on the President, only the President is injured enough by the statute to have standing. Others cannot "object to a statute that imposes duties on strangers." The President's proclamation, on the other hand, are addressed to plaintiffs, like all other citizens. However since the Proclamations merely make a request that citizens are free to deny, no one is injured by them. Judge Easterbrook continued:
Plaintiffs contend that they are injured because they feel excluded, or made unwelcome, when the President asks them to engage in a religious observance that is contrary to their own principles.... [However] offense at the behavior of the government, and a desire to have public officials comply with (plaintiffs’ view of) the Constitution, differs from a legal injury. The “psychological consequence presumably produced by observation of conduct with which one disagrees” is not an “injury” for the purpose of standing.Judge Williams, concurring, found this case to be closer, and the Supreme Court precedent to be less clear, that Judge Easterbrook asserted. Williams wrote:
The [Supreme] Court simply has not been clear as to what distinguishes the psychological injury produced by conduct with which one disagrees from an injury that suffices to give rise to an injury-in-fact in Establishment Clause cases.... [The Supreme] Court has decided cases in many contexts where the plaintiffs claimed that they were hurt by exposure to unwelcome religious messages from the government.... In all of those cases, the Court treated standing as sufficient, even though it appears that nothing was affected but the religious or irreligious sentiments of the plaintiffs.....In the case, the district court had found that plaintiffs had standing, and later concluded that the federal statute violates the Establishment Clause. (See prior posting.) AP reports on the decision. FFRF immediately issued a press release announcing that it will seek en banc review.
Thursday, April 14, 2011
11th Circuit En Banc Upholds City's Limits On Feeding Homeless In City Parks
In First Vagabonds Church of God v. City of Orlando, Florida, (11th Cir., April 12, 2011), the 11th Circuit Court of Appeals en banc upheld a municipal ordinance that limits the number of feedings of large groups that any person or political organization can sponsor in centrally located city parks in Orlando (FL). The court held that even if feeding the homeless is expressive conduct, the ordinance as applied to the organization Orlando Food Not Bombs is a reasonable time, place or manner regulation. A majority of the 3-judge panel in the case had held that feeding of the homeless here was not expressive conduct. (See prior posting.) The en banc court did not review other aspects of the 3-judge panel's decision, so the panel's rulings rejecting attacks on the ordinance under the free exercise, due process and equal protection clauses, and under the Florida Religious Freedom Restoration Act, were reinstated.
Second Lawsuit Against Georgia County Filed Over Zoning Denial For Churches
For the second time this year (see prior posting), a federal lawsuit has been filed against Coweta County, Georgia challenging its denial of a conditional use permit to a predominately African-American church. At issue in the latest suit is the county's refusal to allow Holy Is The Way Ministries to build a church on a rural tract of land it has contracted to purchase. The county Board of Commissioners denied the church's application, rejecting a recommendation of the Board of Zoning Appeals. The complaint (full text) in Holiness Is The Way Ministries, Inc. v. Coweta County, Georgia, (ND GA, filed 4/13/2011), alleges violations of RLUIPA as well as numerous constitutional violations. Among other claims, plaintiffs charge that the provision in the county's zoning ordinance that calls for churches and other places of worship to obtain a conditional use permit to locate in areas zoned Rural Conservation is unconstitutional. The complaint alleges that since this requires the county to analyze the content of speech and other expressive activity in order to determine whether a gathering is "a Church or other place of worship," this violates the 1st Amendment's protection of freedom of expression as well as the Establishment Clause. Alliance Defense Fund issued a press release announcing the filing of the lawsuit.
Community College Board Settles Suit Challenging Prayers At School Ceremonies
A settlement has been reached between the South Orange County (CA) Community College District and plaintiffs challenging the practice of opening various official college events with prayer. The agreement in Westphal v. Wagner, (CD CA, March 31, 2011), calls for an end to prayers at scholarship ceremonies and Chancellor's Opening Session at the community colleges involved. However commencement ceremonies will continue to feature either a non-sectarian prayer or moment of silence. Mission Viejo Patch reports on the agreement reached by the Community College District with Americans United for Separation of Church and State. Last May, the court had denied a preliminary injunction against invocations at graduation, and that ruling was being appealed to the 9th Circuit. (See prior posting.) A trial on the request for a permanent injunction was scheduled to start today, but the settlement led to its cancellation. [corrected]
Chicago Will No Longer Enforce Law Barring Church Picketing During Services
Tuesday's Chicago Sun-Times reports that the city of Chicago has stopped enforcing an ordinance (Chicago Municipal Code Sec. 8-4-010(j)) that bans demonstrations or picketing within 150 feet of a place of worship while services are being conducted and for one-half hour before and after services. The city's law department has concluded that the ordinance is unconstitutional because it discriminates on the basis of subject matter by providing an exception for pickets involved in a labor dispute. The issue arose when, last year, the Church of Scientology, in order to prevent picketing, posted a sign at its headquarters stating that religious services are being held every day from 9:30 am to 10:00 pm. When anti-Scientology protesters were asked by police to leave, lawyer Alex Hageli refused in order to be cited and raise a challenge. The alternative grounds relied upon by the law department avoids deciding the validity of Scientology's attempt to circumvent the law. Hageli was back last Saturday picketing the Scientology headquarters.
Kentucky Court Upholds Rejection of "In God We Trust" Specialty Plates
A Kentucky state trial court has upheld a decision by the Kentucky Transportation Cabinet refusing to approve an "In God We Trust" specialty license plate that an anti-pornography group wanted issued to help it raise funds. XBIZ reported yesterday that the court denied the application by the group Reclaim Our Culture Kentuckiana (ROCK) for the specialty plate because the phrase 'In God We Trust' does not indicate to persons viewing the plate anything about the purpose of the plate's sponsor. Meanwhile, the state has begun to make "In God We Trust" plates available as standard issue plates, rather than specialty plates. (See prior related posting.)
Lawsuit Alleges Retaliation For Complaint About Handling Of Accused Priest
Yesterday's Louisville Courier Journal reports on an interesting Kentucky state court lawsuit in which a former bookkeeper for the Catholic Archdiocese of Louisville claims she was wrongfully fired from her position in retaliation for her complaining that Rev. James Schook, a priest accused of past sexual abuse ,was permitted to reside for several months without supervision at a local church where children were present. Former bookkeeper Margie Weiter says that this violates Archdiocese policy. The Archdiocese says it fired Weiter for budgetary reasons, and that it has the right to use discretion in preventing employees from making potentially defamatory statements about priests whose cases are still under investigation. It also seeks dismissal of the case, arguing that how it handled Schook is a matter of internal church discipline of clergy over which civil courts, under the First Amendment, have no jurisdiction.
Wednesday, April 13, 2011
State Department Serves Vatican With Court Papers On Behalf of Clergy Abuse Plaintiff
In a press release yesterday, plaintiffs' attorney in John Doe 16 v. Holy See, announced that the State Department had served process by diplomatic means on the Vatican in a lawsuit pending in a Wisconsin federal court charging the Pope and two high-ranking cardinals with covering up sexual abuse by a priest in the 1960's at a Catholic school for the deaf in Milwaukee, Wisconsin. (See prior posting.) The summons and complaint was accompanied by a diplomatic note (full text) from the State Department to the Vatican. AP reports on developments. [Thanks to Religion News Service for the lead.]
Priest Convicted In 2006 of Old Murder of Nun Gets New Hearing On Some Evidence
A Toledo, Ohio Catholic priest who was convicted in 2006 of murdering a nun 26 years earlier has been granted a hearing later this month on two challenges to his conviction. In State of Ohio v. Robinson, (Com. Pl., April 11, 2011), a state trial court judge ruled that defendant Gerald Robinson is entitled to a hearing to adduce evidence from some 136 documents relating to the case that had been misfiled and never furnished to him before trial Judge Gene Zmuda also allowed Robinson to challenge affidavits from his trial counsel that the state used as evidence in opposing Robinson's petition for post-conviction relief. Yesterday's Toledo Blade reports on the case. Testimony in Robinson's trial in 2006 suggested ritualistic murder was involved. (See prior posting.)
Swiss Court Acquits Protesters Who Planned To Burn Bible, Qur'an
World Radio Switzerland and Swissinfo.ch reported yesterday that a judge has acquitted three Hindu men who were arrested when they announced last year that they planned to burn the Bible and the Qur'an outside the federal parliament building in Bern's Parliament Square. The three, who want the Bible and Qur'an banned for children, claim that the religious books encourage violence and contain pornographic material. The court ruled that the defendants did not break Swiss law on freedom of faith and religious practice in announcing their intent to burn the books. They were assessed half the court costs, however, on the ground that they had injured the religious feelings of others. But that amount was largely offset by an award to them for the two days they spent in custody.
Utah Supreme Court Hears Re-argument In FLDS United Effort Plan Trust Cases
The Utah Supreme Court yesterday reheard oral argument in two cases involving the FLDS United Effort Plan Trust. An audio recording of the full arguments is available online. The first case, FLDS v. Lindberg, involves the question of whether FLDS church members can collaterally attack reform of the trust over three years after the trial court entered its order. The second case, Snow, Christensen and Martineau, involves the trial's court's disqualification of a law firm from representing FLDS members in an action against the trust because the firm previously had a legal relationship with the trust. (See prior posting.) The state Supreme Court ordered re-argument after a federal judge held that Utah state courts acted unconstitutionally in ordering reform of the FLDS United Effort Plan Trust. (See prior posting.) AP reports on the argument.
Arizona Governor Vetoes Free Exercise Legislation Out of Concern It Could Protect FLDS Members
Arizona Governor Jan Brewer on Monday vetoed SB 1288, a bill that would have prohibited denial or revocation of occupational licenses based on a person's exercise of religion. (See prior posting.) The Verde (AZ) Independent reports that Brewer's veto message stated broadly that: "This bill could protect conduct that harms the public but cannot be readily addressed if the person claims that the conduct is based on religious beliefs." Apparently her veto was based primarily on her concern that the bill would have prevented the suspension of certification of police officers who practiced polygamy in the FLDS-controlled town of Colorado City, Arizona. It might well have also protected officers who refused to give information regarding fugitive FLDS leader Warren Jeffs, claiming that protecting him was a religious practice. Brewer says she will cooperate with the legislature next session to draft a more acceptable version of the law.
UPDATE: Here is the full text of the Governor's veto letter. [Thanks to Volokh Conspiracy.]
UPDATE: Here is the full text of the Governor's veto letter. [Thanks to Volokh Conspiracy.]
Litigious Preacher Sues School District Over Students' Rights To Wear T-Shirts
The Dayton (OH) Daily News reports that on Friday, fire-and-brimstone preacher Orlando Bethel and his wife Glynis filed a federal lawsuit against the Middletown, Ohio school district after school officials objected to the T-shirts worn by their daughter Zoe. The complaint (full text) in Bethel v. Middletown City School District, (SD OH, filed 4/8/2011), challenges the constitutionality of Ohio's compulsory school attendance law and a school practice of having children stand to recite the Pledge of Allegiance. In addition the suit alleges that school officials have interfered with the free exercise rights of plaintiffs' children to wear T-shirts with religious messages on them. Plaintiffs' daughter on one day wore a T-shirt that proclaimed "God Hates Whores." On another day she wore a shirt with the slogan: "God Hates Muslims Gays." The complaint alleges in part that: "Glynis Bethel, in order to talk about JESUS CHRIST on the campus used her minor children to strategically plant them in the schools to preach the gospel of JESUS CHRIST as an expression of their Religious beliefs..."
Last Friday police arrested Orlando Bethel on charges of obstructing official business as he interfered with officers' questioning of two of his children about whether the parents were forcing Zoe Bethel to wear the T-shirts. On Monday Orlando Bethel was fined $150 and given a 30-day suspended sentence. The Bethel's have filed some 50 similar lawsuits, mostly in southern states. The pleadings in a number of these lawsuits are posted on the Repent or Burn in Hell message board.
UPDATE: On April 21, an Ohio federal magistrate judge recommended dismissal of the Bethel's lawsuit. (Dayton Daily News.)
Last Friday police arrested Orlando Bethel on charges of obstructing official business as he interfered with officers' questioning of two of his children about whether the parents were forcing Zoe Bethel to wear the T-shirts. On Monday Orlando Bethel was fined $150 and given a 30-day suspended sentence. The Bethel's have filed some 50 similar lawsuits, mostly in southern states. The pleadings in a number of these lawsuits are posted on the Repent or Burn in Hell message board.
UPDATE: On April 21, an Ohio federal magistrate judge recommended dismissal of the Bethel's lawsuit. (Dayton Daily News.)
Guns In Church For Self-Defense OK'd By Virginia Attorney General
Virginia's Attorney General last week issued an opinion (full text) concluding that under state law is is permissible for a citizen to carry firearms into a place of worship for personal safety purposes. Section 18.2-283 of the Virginia Code outlaws carrying firearms to a place of worship while a meeting for religious purposes is being held only if done so "without good and sufficient reason." Self-defense and personal safety constitute "good and sufficient reason" under the statute according to the AG's Opinion. However, the Opinion also makes it clear that: "Churches, synagogues, mosques and other religious entities can, like any other owner of property, restrict or ban the carrying of weapons onto their private property." [Thanks to First Amendment Law Prof Blog via Volokh Conspiracy for the lead.]
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).
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.
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.
Recent Articles of Interest
From SSRN:
Church-State and Religious Liberty:
Church-State and Religious Liberty:
- Diane Webber, Education as a Counterterrorism Tool and the Curious Case of the Texas School Book Resolution, (Maryland Law Journal of Race, Religion, Gender and Class, Forthcoming).
- Winnifred Fallers Sullivan, Religion, Land, and Rights, (Berkeley Journal of Middle Eastern and Islamic Law, Spring 2011).
- Iain T. Benson, That False Struggle between Believers and Non-Believers, (Oasis, Vol. 12, December 2010).
- Christoph Engel, Law as a Precondition for Religious Freedom, (MPI Collective Goods Preprint No. 2011/6, April 2011).
- Robert J. Miller, Christianity, American Indians, and the Doctrine of Discovery, (Remembering Jamestown: Hard Questions About Christian Mission, Amos Yong, Barbara Brown Zikmund, eds., Pickwick Publications, 2010).
- Nancy J. Kippenhan, Seeking Truth on the Other Side of the Wall: Greenleaf’s Evangelists Meet the Federal Rules, Naturalism, and Judas, (Liberty Law Review, Vol. 5, No. 1, 2010).
- Jeffrey Shulman, Epic Considerations: The Speech that the Supreme Court Would Not Hear in Snyder v. Phelps, (Cardozo Law Review de Novo, pp. 35-42, 2011).
- Richard Schragger, The Politics of Free Exercise After Employment Division v. Smith: Same-Sex Marriage, the 'War on Terror,' and Religious Freedom, (April 5, 2011).
- William A. Fischel, Do Amish One-Room Schools Make the Grade? The Dubious Data of Wisconsin v. Yoder, (March 31, 2011).
- Avishalom Westreich, Umdena as a Ground for Marriage Annulment: Between Mistaken Transaction (Kiddushei Ta‘ut) and Terminative Condition, (Jewish Law Association Studies, Vol. 20, pp. 330-352, 2010).
- Muhammad Munir, The Causes of War in Islam: Infidelity or the Defence of Faith?, (April 3, 2011).
- Omar Salah, Islamic Finance: Developments in the Sukuk Market, (Law and Financial Markets Review, Vol. 4, No. 5, pp. 507-517, September 2010).
- John J. Coughlin, Antinomianism and Legalism in Canon Law, (Contemporary Issues In Canon Law, Patricia M. Dugan, ed., Wilson and Lafleur, 2011).
- Qazi Irfan, Riba and Hadith of Six Commodities, (March 18, 2011).
- Geoffrey P. Miller, Law and Economics Versus Economic Analysis of Law, (NYU Law and Economics Research Paper No. 11-16, April 7, 2011).
From SmartCILP and elsewhere:
- Fatou Kine Camara and Abdourahmane Seck, Secularity and Freedom of Religion in Senegal: Between a Constitutional Rock and a Hard Reality, 2010 Brigham Young University Law Review 859-884.
- Hugo Leonel Ruano, In Search of New Believers: How the Guatemalan Religious Panorama Has Changed in Recent Decades, 2010 Brigham Young University Law Review 895-920.
- Paul Babie and Neville Rochow, Feels Like Deja Vu: Religious Freedom Under a Proposed Australian Bill of Rights, 2010 Brigham Young University Law Review 821-854.
- Tayseir M. Mandour, Islam and Religious Freedom: Role of Interfaith Dialogue in Promoting Global Peace, 2010 Brigham Young University Law Review 885-893.
- Kanak Bikram Thapa, Religion and Law in Nepal 2010 Brigham Young University Law Review 921-930.
- Ira C. Lupu, David Masci, Jesse R. Merriam, and Robert W. Tuttle, Churches in Court: The Legal Status of Religious Organizations in Civil Lawsuits, Pew Forum on Religion and Public Life, March 2011.
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.
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....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."
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.
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.
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.
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.
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:
Justice Kagan wrote a dissent, joined by Justices Ginsburg, Breyer and Sotomayor, arguing that the majority's "arbitrary distinction" between expenditures and tax credits:
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.
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.
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.
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