Recent Prisoner Free Exercise Cases

In McKennie v. Texas Department of Criminal Justice, 2012 U.S. Dist. LEXIS 16924 (WD TX, Feb. 10, 2012), a Texas federal district court held that the rights of a Hebrew-Israelite inmate under RLUIPA were not violated  when he was not permitted to congregate on the Sabbath with his fellow believers without a religious volunteer present and was not provided a vegan diet.

In Mathis v. Manza, 2012 U.S. Dist. LEXIS 17147 (WD PA, Feb.9, 2012), a Pennsylvania federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 17148, Jan 18, 2012) and dismissed equal protection and Establishment Clause claims brought by a non-religious inmate in a jail's restricted housing unit who complained that religious inmates are allowed access to religious texts and jail visits from religious advisers, while he is not allowed access to non-religious texts and extra visits.

In Delgado v. Ballard, 2012 U.S. Dist. LEXIS 16807 (SD WV, Feb. 10, 2012), a West Virginia federal district court rejected RLUIPA. equal protection and retaliation claims by an inmate who adhered to a Taino/Arawak belief system. Plaintiff complained about hair length restrictions, restrictions on tobacco use, restrictions on his use of music during religious observances and interference with his mail. The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 153093, Oct. 6, 2011.

In Santos v. Allen, 2012 U.S. Dist. LEXIS 17206 (D NV, Feb. 13, 2012), a Nevada federal district court held that an inmate had no free exercise claim based on the loss or destruction of a mail-order Passover meal. However the court permitted another free exercise claim, not described in the opinion, to proceed.

In Hallman v. Metts, 2012 U.S. Dist. LEXIS 17393 (D SC, Feb. 13, 2012), a South Carolina federal district court rejected a Muslim inmate's claims that he was not provided adequate and appropriate meals during Ramadan, that he was not provided adequate privacy in communal rest rooms, that n Imam was provided and that he was prevented from praying with other Muslims. The magistrate's recommendation in the case is at 2012 U.S. Dist. LEXIS 17390, Jan. 19, 2912.

In Shabazz v. Virginia Department of Corrections, 2012 U.S. Dist. LEXIS 17746 (ED VA, Feb. 13, 2012), a Virginia federal district court ordered various defendants to file a memo explaining their position on equal protection, free exercise and RLUIPA claims of a Nation of Islam plaintiff who wished to purchase Nation of Islam non-music CDs directly from The Final Call. Prison authorities required him to go through the Faith Review Committee for approval to add them to the catalog of the prison's distributor.

In Murden v. DeRose, 2012 U.S. Dist. LEXIS 19112 (MD PA, Feb. 15, 2012), a Pennsylvania federal district court rejected an inmate's claim that his free exercise rights were infringed when, his copy a Qur'an was confiscated for 16 days in a general cleaning of cell contents undertaken in response to a riot.

In Mujahid v. Cunningham, 2012 U.S. Dist. LEXIS 19773 (WD WA, Feb. 16, 2912), a Washington federal district court dismissed an inmate's complaint that unidentified mail room staff trashed or rejected several religious books, magazines and publications. The magistrate's recommendation is at 2011 U.S. Dist. LEXIS 153281, Nov. 8, 2011.

In Barbosa-Orona v. Flores-Dasta, 2012 U.S. Dist. LEXIS 19951 (D PR, Feb. 15, 2012), a Puerto Rico federal district court held that a Catholic inmate who claims he had made a religious vow not to cut his hair had failed to exhaust his administrative remedies before suing over the forced cutting of his hair by prison guards.

In Palermo v. Wrenn, 2012 U.S. Dist. LEXIS 19154 (D NH, Feb. 8, 2012), a New Hampshire federal magistrate judge recommended permitting an inmate to move ahead with his free exercise, RLUIPA and equal protection claims against two defendants. Plaintiff alleged that he was denied access to Asatrú religious services, religious items, literature, and a religious diet on the basis that Asatrú is not a religion, but a white supremacist group.

In Vazquez v. Waln, 2012 U.S. Dist. LEXIS 18186 (D NC, Feb. 14, 2012), a North Carolina federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 153278, Nov. 28, 2011) and permitted an inmate to move ahead with his free exercise and RLUIPA claims that a correctional officer
interfered with his religious practices by seizing his Religious Box which he needed to engage in prayers. However the court rejected his due process challenge to the seizure.

2nd Circuit: TRO On Church Use of Schools Only Applies To One Church

As previously reported, on Thursday a New York federal district court issued a temporary restraining order in the long-running case of Bronx Household of Faith v. New York City Board of Education, temporarily barring the Board of Education from enforcing a Chancellor's Regulation precluding use of school buildings for religious worship. Yesterday, the U.S. 2nd Circuit Court of Appeals issued an order (full text) in the case, clarifying that the TRO applies only to evicting Bronx Household of Faith, and does not apply to protect other churches that are not parties to the litigation. However the Circuit Court refused to stay the TRO as it applies to Bronx Household of Faith. Reporting on the 2nd Circuit order, New York Law Journal says that the city and some 50 religious groups had understood the TRO to apply to churches using any public school, and a number of churches were scrambling to get permits for this Sunday.

Canada's Supreme Court Upholds Quebec's Ethics and Religious Culture Program In Schools

In S.L. v. Commission scolaire des Chênes, (Canada Sup. Ct., Feb. 17, 2012), the Supreme Court of Canada rejected a religious liberty challenge to the mandatory Ethics and Religious Culture Program that in 2008 replaced Catholic and Protestant programs of religious and moral instruction. Two parents challenged the program, arguing that it interfered with their obligation to pass on the teachings of the Catholic religion to their children. Justice Deschamps' opinion for 7 justices held:

Parents are free to pass their personal beliefs on to their children if they so wish.  However, the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society.  The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligations with regard to public education.  Although such exposure can be a source of friction, it does not in itself constitute an infringement of s. 2(a) of the Canadian Charter and of s. 3 of the Quebec Charter.

A concurring opinion by Justices LeBel and Fish agreed that on the current record, the program should not be struck down. They said, however, that once the program is full implemented so that the actual content and approach are known, it may be that a valid challenge will be available.

One News Now reports on the decision. (See prior related posting.)

Dutch Court Dismisses Charges Against Jewish Man Who Could Not Produce ID On Sabbath

DutchNews.nl reports today that an appeals court in the Hague has dismissed charges of failing to produce an identification card that had been brought against an Orthodox Jewish man who for religious reasons did not carry his ID on the Sabbath.  A court spokesman said that the defendant's religious requirement was more important than the requirement to meet Dutch law.

UPDATE: DutchNews.nl (Feb. 22) reports that the public prosecution department will appeal the decision.

Preacher Loses Challenge To University's Speaker Rules

In McGlone v. Cheek, 2012 U.S. Dist. LEXIS 18820 (ED TN,  Feb. 15, 2012), a Tennessee federal district court upheld rules at the University of Tennessee that permit outside speakers on campus only if they are sponsored by a student organization. The rule was challenged by a Christian preacher who wanted to share his religious beliefs at various outdoor areas on campus, but did not have student organizational sponsorship.  The court held that the University's rules were reasonable content-neutral restrictions on use of a limited public forum. The court also rejected vagueness and overbreadth challenges.

Court Can Apply "Neutral Principles" To Dispute Over Removal Of Church Board Members

In Bendross v. Readon, (FL Aoo., Feb. 15, 2012), a Florida appeals court held that the ecclesiastical abstention doctrine does not apply to prevent a civil court from adjudicating a dispute over the make up of the a church's board.  Bible Missionary Baptist Church was incorporated as a non-profit corporation under Florida law. Eugene Rice, a member of the church's board,, filed the corporation's 2010 annual report with the state without notice to the remaining directors. The report removed four members of the board and added three new directors. Other board members objected, and eventually filed suit. The court held that since the church by-laws were silent on procedures for removing board members, default provisions in the non-profit corporation law should apply. The court explained:

Because the statute unambiguously establishes procedures of uniform law, the instant dispute "can be resolved by applying neutral principles of law without inquiry into religious doctrine and without resolving a religious controversy." ...  The court is not asked to interpret religious doctrine or to evaluate church policies. The allegations at the heart of the complaint — that Appellees improperly attempted to remove members of the Board of Trustees — are entirely controlled by neutral application of section 617.0808.

House Committee Holds Hearing On Obama Contraception Coverage Mandate

The House Committee on Oversight and Government Reform yesterday held a hearing titled Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?  Eleven witnesses appeared on two panels before the committee. The Committee's website has transcripts of the prepared statements of the witnesses along with videos of the hearing. Reporting on the hearing, McClatchy Newspapers said:

Leaders from the Catholic, Jewish, Baptist and Lutheran faiths joined in opposition to a proposed federal mandate that would require church-affiliated employers to cover birth control in their health plans.

The leaders took part in a highly politicized oversight hearing led by one of President Barack Obama's chief critics, Rep. Darrell Issa, R-Calif. But for those leaders, the issue was deeply serious and personal, touching on one of the basic tenets of the nation's democracy and raising questions about government's place in the faith community.

AP reports that Democrats on the committee were unhappy that Republicans accepted only one Democratic witness. Democrats were also concerned about the fact that only two women were slated as witnesses.

UPDATE: Apparently only ten of the witnesses appeared, with Barry Lynn of Americans United not appearing.

New Jersey Legislature Passes Same-Sex Marriage Bill; Veto Expected

In New Jersey yesterday the Assembly gave final legislative approval to a bill legalizing same-sex marriage. However, according to a report by AP, it is expected that Gov. Chris Christie will veto the bill. The bill (full text) earlier this week passed the state Senate by a vote of 24-16, and then passed the lower house yesterday by a vote of 41-33.

New TRO Issued In Bronx Household Case, Keeping Churches In School Buildings

As reported by AP, yesterday a New York federal district court issued a temporary restraining order (full text) against the New York City Board of Education in Bronx Household of Faith v. New York City Board of Education, a suit that most observers had assumed was concluded.  The TRO temporarily bars the Board of Education from enforcing against a small Bronx church Chancellor's Regulation D-180.  That regulation bars public schools from allowing their buildings to be used for religious worship services or otherwise as a house of worship even though the buildings are available to be used outside of normal school hours for programs by community groups. Most observers thought that the validity of the regulation had been definitively upheld when last December the U.S. Supreme Court denied certiorari in this case which has worked its way up and down the courts for 17-years. (See prior posting.)  After the Supreme Court's denial of review of the 2nd Circuit's decision, widely published media reports indicated that scores of churches were being forced to seek out new places to meet, at significant extra cost to the churches. On Feb. 3, plaintiffs in Bronx Household however filed a new motion (full text) in federal district court seeking a preliminary injunction against enforcement of the school board rule, asserting:

While the Second Circuit ruled in June 2011, that the Department’s policy did not violate the Free Speech Clause of the First Amendment, neither this Court nor the Second Circuit have ever analyzed the Department’s policy under the Free Exercise Clause.... Further, that decision also requires new analysis of the Church’s Establishment Clause claim because it excessively entangles the government with religion.

In issuing the 10-day TRO yesterday, Judge Loretta Preska found that plaintiffs had demonstrated irreparable harm and a likelihood of success on the merits of their Free Exercise Clause and Establishment Clause claims. She also said that a written opinion explaining her ruling further would follow.

State Appeals Court Affirms Attorney Sanctions In Jews For Jesus Case

According to a press release yesterday by Liberty Counsel, a Florida state appeals court has affirmed a trial court order requiring attorney Barry Silver to pay $56,000 in attorneys' fees incurred by Jews for Jesus in a long running case in the state courts of Florida. The case was filed by Silver on behalf of Edith Rapp who claimed that Jews for Jesus published a false report from her missionary stepson that she had joined the organization. The trial court found that the pleadings included redundant, immaterial and scandalous content that the court had previously ordered stricken, and that this involved bad faith litigation conduct on the part of attorney Silver. (See prior posting.) Liberty Counsel also said that the appeals court indicated that if Silver files more motions on appeal, their denial will lead to more sanctions.

Challenge To Excommunication Dismissed Under Church Autonomy Doctrine

In Cassell v. Christian Science Board of Directors, 2012 Mass. App. Unpub. LEXIS 173 (MA App., Feb. 15, 2012), the Appeals Court of Massachusetts affirmed the trial court's application of the church autonomy doctrine and dismissed a challenge by plaintiff to her excommunication from the Christian Science church. Plaintiff was a member of a "restoration group" that challenged modernization efforts by the board. The court said it was clear that "the First Amendment forbids courts from interfering with a church's internal governance or with the excommunication of its members." The court held that plaintiff's appeal was frivolous and awarded attorneys' fees to defendant.

Christian Employee's Title VII Claim May Proceed

In Grant v. I.N.I. Corp., 2012 U.S. Dist. LEXIS 18113 (D SC, Feb. 14, 2012), a South Carolina federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 18116, Jan. 25, 2012) and permitted a Christian employee to proceed with a Title VII religious discrimination claim. Plaintiff alleged that he  informed his employer about his obligations to his church on Saturdays and Sundays, but that he was continuously scheduled him for Saturday shifts. Management failed to respond to his complaints.  He alleges that he was harassed because of the complaints and eventually was terminated from his position.

Revised Contraceptive Coverage Mandate Challenged In Lawsuit

The first lawsuit to challenge the Obama Administration's revised health care reform mandate on insurance coverage for contraceptive services was filed yesterday by Priests for Life, an organization with 50 to 60 employees. The complaint (full text) in Priests for Life v. Sebelius, (ED NY, filed 2/15/2012), claims that the group's free exercise and free speech rights, as well as its rights under RFRA are violated by the mandate requiring its health insurance policy to cover contraceptive services. The suit also claims violations of the Administrative Procedure Act.  Focusing for the first time in litigation on the Obama administration's new framework that calls for insurance companies to provide contraceptive coverage without charge when a religious employer has moral or religious objections to paying for such coverage, the complaint alleges:

There is no logical or moral distinction between the original contraceptive services mandate and the “revised” regulation announced on February 10, 2011. Employers who offer health insurance do not pay for individual benefits and products as they are provided. Rather, they pay a premium for a policy that gives their employees access to covered benefits and products when they need them. Under the “revised” regulation, all non-exempted health plans must include contraceptive services among their covered benefits. The choice for religious employers is still between paying an insurer to provide their employees with access to a product that violates their convictions (i.e., contraceptives, sterilization, and abortifacients) or paying a large annual fine to the federal government.

A press release from the American Freedom Law Center reported on the filing of the suit.

Mexican Catholic Church Criticized Over Voter Guidelines

Mexico's Constitution (Art. 130) provides that: "priests and ministers cannot form political associations nor carry out propaganda for any candidate, party or political group." AP reported yesterday that Mexico's Catholic Church is being criticized for releasing voter guidelines for the faithful as the July 1 presidential elections approach. The guidelines appear to be in technical compliance with the constitutional requirement, but they implicitly endorse certain candidates. The guidelines say that Catholics may not "choose as a political option those who support or promote false rights or liberties that attack the teachings contained in the Holy Scriptures, tradition and doctrine of the Church." They also say that Catholics should watch for whether candidates and parties support the right to life. These warnings appear to be directed against candidates from the Democratic Revolutionary Party which, in control of the Mexico City government, has legalized abortion and same-sex marriage.

Mormon Church Apologizes For Posthumous Baptism of Holocaust Victims; Comment Sought From Romney

The Los Angeles Times reported yesterday that Mormon Church leaders have apologized to the family of Simon Wiesenthal, a Holocaust survivor and activist in tracking down Nazi war criminals, for the posthumous proxy baptism of Wiesenthal's parents who were Holocaust victims. The proxy ceremonies took place last month at Mormon temples in Arizona and Utah, despite an agreement in 2010 between the Church of Jesus Christ of Latter Day Saints and the American Gathering of Jewish Holocaust Survivors and Their Descendants that the Church would end the practice by removing the names of Holocaust victims from its data base. Mormon Church spokesman Scott Trotter told the Salt Lake Tribune that the church member who submitted the names of Wiesenthal's parents for baptism engaged in a "serious breach of our protocol, and we have suspended indefinitely this person’s ability to access our genealogy records."

Meanwhile the Huffington Post yesterday reported that Holocaust survivor and Nobel Peace Prize winner Elie Wiesel is calling for Republican Presidential candidate Mitt Romney to speak out on the issue of posthumous proxy baptism of Jews after a researcher reported that the names of two of Wiesel's ancestors-- as well as the name of Wiesel himself who is still alive-- had been submitted to a restricted genealogy website from which a process for proxy baptism can be initiated.

British Muslim Cabinet Minister Urges Greater Role For Christianity In Public LIfe

In Britain, Sayeeda Warsi, Co-Chairman of the Conservative Party and the first Muslim to serve as a full member of the British Cabinet is leading a ministerial delegation from the United Kingdom to the Vatican to mark the 30th anniversary of Margaret Thatcher's restoration of Britain's full diplomatic relations with the Holy See. Writing in today's London Telegraph, Warsi argues for a stronger role for Christianity and religion  more generally in Britain and elsewhere in Europe. She says in part:

[T]his trip is about more than a Valentine’s Day “love in” with our Catholic neighbours. This is about recognising the deep and intrinsic role of faith here in Britain and overseas. For a number of years I have been saying that we need to have a better understanding of faith in our country.....

I will be arguing that to create a more just society, people need to feel stronger in their religious identities and more confident in their creeds. In practice this means individuals not diluting their faiths and nations not denying their religious heritages....

I will be arguing for Europe to become more confident and more comfortable in its Christianity. The point is this: the societies we live in, the cultures we have created, the values we hold and the things we fight for all stem from centuries of discussion, dissent and belief in Christianity....

My fear today is that a militant secularisation is taking hold of our societies. We see it in any number of things: when signs of religion cannot be displayed or worn in government buildings; when states won’t fund faith schools; and where religion is sidelined, marginalised and downgraded in the public sphere.

It seems astonishing to me that those who wrote the European Constitution made no mention of God or Christianity. 

"Under God" In Pledge Questioned Under State Constitution

Yesterday's Boston Herald reports on the lawsuit under way in state court in Massachusetts challenging the inclusion of the phrase "under God" in the Pledge of Allegiance. Unlike previous challenges, this one relies on the equal protection clause of the Massachusetts state constitution.  The lawsuit argues that atheist children are made to feel marginalized when the Acton, Massachusetts schools recite the pledge that includes the reference to God, even though any child may be excused from joining in the pledge. Last October, other parents as well as the Knights of Columbus filed a motion to intervene in the case to support the constitutionality of the Pledge (full text of memo in support). A hearing in the case was held yesterday. WCVB-TV reports that attorneys for the plaintiff argued: "This is a daily exercise that favors a particular religious view and defines patriotism according to a particular religious belief."

6th Circuit: Injunction Granted To Allow Proselytizing At Sweet Corn Festival

In Bays v. City of Fairborn, (6th Cir., Feb. 13, 2012), the U.S. 6th Circuit Court of Appeals held that a preliminary injunction should issue to prevent enforcement of the policy at the annual Fairborn Sweet Corn Festival held at a 200-acre park in Fairborn, Ohio that allows sales or soliciting of causes only from booths at the Festival. The court read the policy as even barring one-on-one conversations. The suit was filed by two Christian men who wanted to walk around and preach, distribute literature and display signs at the Festival. The court concluded that the policy is not narrowly tailored to serve a significant governmental interest.  It pointed out: "Here, there is no fence surrounding the Festival at Community Park and no admission fee to enter.... And Fairborn does little to demonstrate the significance of crowd control at the Festival." AP reports on the decision.

Israel Will Not Extradite Fugitive To U.S. Unless He Will Have Kosher Food In Prison

According to Haaretz, a trial court in Israel on Sunday ruled that a U.S. request for extradition of a convicted hit-and-run driver should be denied unless it is assured that the driver will have access to kosher food while serving his sentence. Jerusalem District Court Judge Ben-Tzion Greenberger pointed to Israel's Extradition Law that prohibits extradition where it will "harm public policy or a crucial interest of the State of Israel." According to the court, if Wayne is not assured kosher food, it would be "a serious violation of his most basic rights to freedom of religion and worship."

In 1998, Lawrence Seth Wayne was sentenced to 19 years in prison by a Florida court on charges of DUI manslaughter. In 2000, after losing an appeal but before he was sent to prison, Wayne fled to Israel using a forged passport and assumed name. Wayne was finally located in Israel last year. Florida stopped offering a kosher food alternative to its inmates in 2007 (see prior posting) but in 2010 began a trial program to reinstate availability through the Aleph Institute. (See prior posting.)  The United States could still obtain Wayne's extradition by promising that he will obtain kosher food in his Florida prison or that he will serve his sentence in one of the 35 other states, or in a federal prison, that provide kosher food.  However, according to Haaretz, "Florida has refused to allow Wayne to receive kosher food in prison even if he pays for it privately, and insists he must begin serving his sentence in Florida while awaiting the proceedings to transfer him to another state."

Recent Prisoner Free Exercise Cases-- Second Weekly Installment

In Theron v. County of York, 2012 U.S. Dist. LEXIS 16377 (MD PA, Feb. 9, 2012), a Pennsylvania federal district court dismissed claims by an immigration detainee that while housed at a state prison he was not provided an Imam for Jumah services or Halal food during Ramadan, and that one of the defendants destroyed a Quran during a cell search.

In Blankenship v. Reginald, 2012 U.S. Dist. LEXIS 16481 (SD OH, Feb. 9, 2012), an Ohio federal district court refused to appoint counsel and ordered an Asatru inmate to file an amended complaint in a damage claim which was severed from a class action for injunctive relief on behalf of Asatru inmates that was previously resolved. Damage claims under RLUIPA were dismissed.

In Wilson v. Sabatka-Rine, 2012 U.S. Dist. LEXIS 15844 (D NE, Feb. 9, 2012), a Nebraska federal district court dismissed, with leave to file an amended complaint, claims by a Wiccan inmate that he was not allowed to attend group rituals, was denied possession of his religious medallion for 30 days, while in segregation was denied hardcover books and several religious items, and that authorities failed to recruit Wiccan clergy.

In Alexander v. California Department of Corrections, 2012 U.S. Dist. LEXIS 16019 (ED CA, Feb. 8, 2012), a California federal magistrate judge recommended dismissing an inmate's challenge to a California prison regulation that prohibits inmates from possessing non-obscene, "sexually explicit material."  Among the challenges rejected was the claim that the provision promotes religious belief in violation of the Establishment Clause.

In Nassar v. Butler County Jail, 2012 U.S. Dist. LEXIS 16421 (SD OH, Feb. 9, 2012), an Ohio federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 153057, Sept. 1, 2011) and dismissed a Muslim inmate's complaint that authorities did not provide him adequate Ramadan meals and wrongfully removed him from the Ramadan observance list while he was a pretrial detainee.

In Snyder v. Swarthout, 2012 U.S. Dist. LEXIS 16300 (ED CA, Feb. 7, 2012), a California federal magistrate judge recommended denying an inmate's habeas corpus petition, rejecting the claim that the Board of Parole Hearings conditioned his release on parole on his participating in a religious 12-step program of NA or AA.

Saudi Writer Deported Home To Face Blasphemy Charges

The New York Times reported yesterday that Saudi journalist Hamza Kashgari was stopped by Malaysian authorities at Kuala Lumpur airport on Thursday and was deported back to Saudi Arabia at the request of the Saudi king where the journalist will face blasphemy charges. The journalist has angered Saudis by writing in a series of tweets on Twitter about an imaginary meeting with the Prophet Muhammad. The Daily Beast quotes some of the tweets. Human Rights Watch says that Kashgari will face a possible death sentence in Saudi Arabia. Kashgari was attempting to fly on to New Zealand when he was detained.  A lawyer hired by Kashgari's family obtained an order from a Malaysian court on Sunday that would stop Kashgari's deportation, but the lawyer discovered that Kashgari had by then already been returned to the Saudis on a private Saudi jet.

Recent Articles of Interest

From SSRN:

• Frederick Mark Gedicks, Establishment Clause Incorporation: A Logical, Textual, and Historical Defense, (January 31, 2012).
• Nima Mersadi Tabari, The Sharia’h Dimension of the Persian Gulf's Hydrocarbon Resources, (February 1, 2012).
• Munir Ahmad Mughal, Schools of Islamic Jurisprudence, (January 31, 2012).
• Jeffrey L. Callen and Xiaohua Fang, Religion and Stock Price Crash Risk, (January 31, 2012).

From SmartCILP:

• Joshua Dubler, Religion and the Practices of Popular Constitutionalism: Sarah Gordon's The Spirit of the Law. (Reviewing Sarah Barringer Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America), [Abstract], 36 Law & Social Inquiry 1062-1088 (2011).
• Richard H. Hiers, Ancient Laws, Yet Strangely Modern: Biblical Contract and Tort Jurisprudence, 88 University of Detroit Mercy Law Review 473-496 (2011).
• Victor N. Metallo, PROCEDAMUS IN PACE Serving Justice: RLUIPA Resonates the Teachings of Dignitatis Humanae, and the Third Circuit’s “Substantial Burden” Test Provides a Thorough, Fair Inquiry into a Prisoner’s Religious Exercise, 88 University of Detroit Mercy Law Review 498-526 (2011).
• Douglas Laycock, McElroy Lecture. Sex, Atheism, and the Free Exercise of Religion, 88 University of Detroit Mercy Law Review 407-432 (2011).

Lawsuit Challenges Limits On Keeping Animals As Impairment of Religious Freedom

Cecil Daily reported last Friday on a federal lawsuit field by a Chesapeake, Maryland man who has been ordered by Cecil County (MD) officials to get rid of his pet goat.  Under the county zoning code, a homeowner can keep animals, other than dogs and cats, only on property that is at least an acre in size.  However homeowner Craig Balunsat says that he needs his goat, as well as his six chickens and two ducks in order to practice his Native American religious beliefs. His lawsuit alleges that his "native American religious beliefs require the keeping of his pets as a balance of symbiosis and harmony between animals and humans, and his Messianic Judaism Christian beliefs coincide with this."

British Court Acquits Street Preacher Who Condemned Gay Couple

The London Mail reports that lay Christian street preacher, Michael Overd, was acquitted last Thursday by Taunton Deane Magistrates court of charges of directing threatening or abusive language at Craig Manning and Craig Nichol, a gay couple. Apparently Overd had a previous altercation with the couple in 2010. When he saw them again in July 2011, he said: "I have already told these two sinners over here that they are going to burn in hell." Nichol asked who he was to judge him. Overd replied that it is God's words. Overd's attorney argued that Overd was merely reciting a passage from 1 Corinthians that reads: "Neither the sexually immoral nor idolaters nor adulterers nor homosexuals nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God."

Scientology Church Withdraws Temporary Injunction Request To Avoid More Damaging Testimony [Corrected]

According to the San Antonio Express-News, the Church of Scientology last Friday decided to withdraw its request for a temporary injunction in a suit against a former church official and her husband after testimony by defendant in a Texas state court in the case described physical abuse and detention of Scientology adherents who fell out of favor with church leadership.  Debbie Cook, who spent 29 years with the church, including 17 as an official at its spiritual headquarters in Clearwater, Florida, left the church in 2007. In exchange for a payment of $100,000, she and her husband signed a nondisclosure agreement. However last December she sent out an e-mail to other Scientologists charging that the church had strayed from the teachings of its founder, L. Ron Hubbard. In January, the Church sued charging breach of the nondisclosure agreement. But in court, Cook's attorney argued that the agreement was signed under extreme duress. The Express-News described Cook's testimony supporting this defense as "lurid and highly damaging" to the church. In moving for dismissal of its case, attorney for the Church of Scientology said that withdrawal  will "prevent the defendant from using the court as a pulpit for false statements." [An earlier version of this posting incorrectly reported that the entire lawsuit, rather than just the request for a temporary injunction, had been withdrawn.]

Victim Withdraws Suit Against Vatican In Favor of Bankruptcy Proceedings

Now that sex abuse victim claims have all been filed (see prior posting) in the bankruptcy proceedings of the the Catholic Archdiocese of Milwaukee, the Archdiocese reports that in bankruptcy court proceedings on Feb. 9:

The judge ruled that the claimants could no longer bring a negligence claim against the archdiocese.  It also found that the claimant seeking to upset a prior settlement failed to meet the high standard under Wisconsin law to upset the settlement and disallowed the claim.  The judge determined that the question of whether the fraud claims should be dismissed on statute of limitations grounds needed to be considered in further proceedings that would determine the factual issues.

The Milwaukee Journal-Sentinel reported yesterday that in response to the court's allowing the fraud claims to proceed to trial, a lawsuit filed in 2010 (see prior posting) against the Holy See, the Pope, and two Vatican cardinals has been withdrawn.  The suit sought damages because of sexual abuse plaintiff suffered in the early 1960's at the hands of Rev. Lawrence Murphy who taught at St. John's School for the Deaf in suburban Milwaukee. Jeffrey Anderson, attorney for the plaintiff, who also represents victims in the bankruptcy proceedings, said that his client "felt that his energies would be best spent working alongside fellow survivors toward justice and healing at the archdiocese level." Presumably the plaintiff has filed a claim in the bankruptcy proceedings.

British Court Rules On Opening Town Council Meetings With Prayer

The dispute over opening city council sessions with prayer which has surfaced in many U.S. cities has now, according to the Telegraph, also become the subject of legal dispute in Britain.  A trial court has ruled in a challenge to the practice brought by the National Secular Society and a secular member of Council in the town of Bideford.  In National Secular Society v. Bideford Town Council, (EWHC, Feb. 10, 2012), the London High Court held that under the Local Government Act 1972, there is no statutory authority for a town council to have prayers or a period of quiet reflection as a part of the Council's business. It went on to hold, however, that if prayer were permitted, it would not violate the religious discrimination provisions of the Equality Act 2006 (now replaced by the Equality Act 2010). The court, referring to claims by the secular member of Council, said in part:

I do not see that the feelings of discomfort or exclusion which he has, and which he says are shared by a number of other actual or possible Councillors in the minority on this issue, should be regarded as a discriminatory disadvantage when its elimination would prevent the degree of comfort or composure which the majority seek being achieved, merely substituting one set of uncomfortable feelings for another.

However, according to today's Telegraph, Communities and Local Government Secretary Eric Pickles says that Britain's new Localism Act 2011 which will become effective in the next few weeks gives Councils a new “power of competence” to determine their own procedures.  According to Pickles, this new power should be broad enough to allow Councils to include prayers to open their meetings.

Recent Prisoner Free Exercise Cases

In Sharp v. Johnson, (3d Cir., Feb. 9, 2012), inmates who were members of the Habashi sect of Sunni Islam sought, and were refused, separate religious services from the existing Sunni services. In affirming the district court's judgment for defendants, the 3rd Circuit held that RLUIPA does not impose liability for damages in suits against defendants in their individual capacities. It also held that prison officials, in defending against a 1st Amendment free exercise claim, have the burden to show a connection between a restriction and penological interests, but the trial court error in that regard did not matter because here defendants had qualified immunity.

In Davis v. Castelloe, (4th Cir., Feb. 2, 2012), the 4th Circuit, reversing the district court, held that an inmate's free exercise claim survives frivolity review. The district court (2011 U.S. Dist. LEXIS 152786, ED NC, April 15, 2011) had dismissed plaintiff's claim that religious property belonging to him, including a prayer book, other books, a rosary and a crucifix were destroyed by the chaplain who was "anti-Catholic" and who denied the Catholic community equal time as other religious groups.

In Damron v. Jackson, 2012 U.S. Dist. LEXIS 13359 (SD OH, Feb. 3, 2012), an Ohio federal district court denied a motion to amend its earlier decision that rejected a complaint over a prison's refusal to permit separate congregate worship services for Christian Separatist adherents.

In Lindh v. Warden, Federal Correctional Institution, Terre Haute, Indiana, 2012 U.S. Dist. LEXIS 13121 (SD IN, Feb. 3, 2012), an Indiana federal district court, in a lawsuit by convicted enemy combatant John Walker Lindh, held that recitation of the 5 daily Muslim group prayers is a religious exercise based on Lindh's sincerely held religious beliefs. But genuine issues of material fact remain as to whether a restriction on group prayer substantially burdened Lindh's free exercise and, if it did, whether the government showed a compelling interest and least restrictive means.

In Thaxton v. Simmons, 2012 U.S. Dist. LEXIS 12841 (ND NY, Feb. 2, 2012), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 13555, Jan. 5, 2012) and dismissed an inmate's claim that his free exercise rights were violated when his kosher food tray was contaminated on two occasions.

In Lister v. Coleman, 2012 U.S. Dist. LEXIS 15016 (ND OH, Feb. 6,2012), an Ohio federal district court held that an inmate had not sufficiently alleged a free exercise claim through a general allegation that he was denied the right to purchase religious items to practice his Native American Indian religion.

In Martz v. SCI-Coal Township Therapeutic Community, 2012 U.S. Dist. LEXIS 15821 (MD PA, Feb. 8, 2012), a Pennsylvania federal district court permitted an inmate to proceed against certain defendants on his complaint that he was required, in order to receive favorable parole consideration, to complete a substance abuse program that violated his religious beliefs.

In Porter v. Van Tatenhove, 2012 U.S. Dist. LEXIS 15396 (WD MI, Feb. 8, 2012), a Michigan federal district court rejected claims by an inmate that he had the right to have his religious name, which he legally adopted after his commitment, appear on his prison pass.

In Johnson v. Alvarez, 2012 U.S. Dist. LEXIS 14253 (D NV, Feb. 7, 2012), a Nevada federal district court denied an inmate a preliminary injunction, rejecting his claim that he was disciplined for disobedience solely because he was a Muslim practicing his religious beliefs.

In North v. Clarke, 2012 U.S. Dist. LEXIS 15204 (ED VA, Feb. 7, 2012), a Virginia federal district court  granted an inmate summary judgment, holding that a Department of Corrections policy that allows inmates to receive music and religious CD's, but not secular spoken-word CD's, violates the 1st and 14th Amendments. However, the court denied an award of damages on qualified immunity grounds.

In Cottier v. Schaeffer, 2012 U.S. Dist. LEXIS 14062 (D SD, Feb. 6, 2012), a South Dakota federal district court held that plaintiff failed to plead facts to support his claim that, while in prison, he has not been permitted to "worship through ceremonials and traditional rites of the Lakota Nation."

In Turner v. Gibson, 2012 U.S. Dist. LEXIS 16065 (ED CA, Feb. 9, 2012), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that Catholic, Muslim, Buddhist and Jewish prisoners in administrative segregation are not provided spiritual counseling or services.

In Colvin v. Caruso, 2012 U.S. Dist. LEXIS 16151 (WD MI, Feb. 9, 2012), a Michigan federal district court, in a case on remand from the 6th Circuit, issued declaratory relief finding that a Department of Corrections policy that provides a prisoner's religious menu is to be revoked for mere possession of "any food item that violates a tenet of his or her designated religion" violates prisoners' free exercise rights. Here plaintiff was taken off a kosher diet after a non-kosher powder protein supplement was found in his cell.

7th Circuit: Appeal of Orders In Land Transfer To Catholic School Is Moot and Untimely

In Wirtz v. City of South Bend, (7th Cir., Feb. 7, 2012), the U.S. 7th Circuit Court of Appeals dismissed as untimely and moot an appeal by the city of South Bend, Indiana of two orders by the trial court in litigation over the city's transfer of property to a Catholic high school for an athletic complex.  A district court rejected two plans for the transfer, on Establishment Clause grounds (see prior posting), but ultimately approved the transfer under an arrangement where the Catholic school was the highest bidder. In an appeal from the district court's approval of the transfer, the city seeks to challenge the two previous orders that disapproved earlier plans, arguing that they create precedent that will prevent the city from transferring land to religious institutions in the future. The court said that the city should instead have filed a timely appeal from the first denials.WSBT-TV reports on the decision.

Christian Evangelists May Continue Suit Against Dearborn Over Arrests

In Acts 17 Apologetics v. City of Dearborn, (ED MI, Feb. 7, 2012), a Michigan federal district court refused to grant summary judgment to the City of Dearborn in a suit against it by three Christian evangelists who sued over their arrest and subsequent breach of the peace trial for proselytizing Muslims at Dearborn's Arab International Festival. Plaintiffs assert 12 causes of action growing out of their treatment. The court held that on the facts of this case, a state court's finding that authorities had probable cause to arrest defendants does not preclude the federal court from reexamining that issue. The Dearborn Press & Guide reports on the decision. (See prior related posting.)

British Appeals Court Upholds Damages For Religious Refusal To Rent Hotel Room To Same-Sex Couple

In Bull v. Hall & Preddy, (EWCA, Feb. 10, 2012), the Court of Appeal of England and Wales upheld a damage award against a Christian couple who operated a hotel for refusing, on religious grounds, to rent a double-bedded room to a same-sex couple that had reserved it.  The court held that the refusal amounted to direct discrimination in violation of the Equality Act (Sexual Orientation) Regulations 2007. Appellants argued that applying the Regulations to them violated their right of thought, conscience and religion protected by Art. 9 of the European Convention on Human Rights. The court rejected the argument. Lady Justice Rafferty in her opinion wrote:

Whilst the Appellants’ beliefs about sexual practice may not find the acceptance that once they did, nevertheless a democratic society must ensure that their espousal and expression remain open to those who hold them. It would be unfortunate to replace legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the Appellants’ beliefs); rather there should be achieved respect for the broad protection granted to religious freedom.... Any interference with religious rights.... must satisfy the test of `anxious scrutiny’. However, in a pluralist society it is inevitable that from time to time, as here, views, beliefs and rights of some are not compatible with those of others. ...I do not consider that the Appellants face any difficulty in manifesting their religious beliefs, they are merely prohibited from so doing in the commercial context they have chosen.

The Telegraph reports on the decision. (See prior related posting.)

Supreme Court Review Sought In Mt. Soledad Cross Case

A petition for certiorari (full text) was filed with the U.S. Supreme Court on Thursday in City of San Diego v. Trunk, (cert. filed 2/9/2012). In the case, a 3-judge panel of the 9th Circuit held that the now federally-owned Mt. Soledad Memorial featuring a 43-foot high cross conveys a government message of endorsement of religion that violates the Establishment Clause. Subsequently the full 9th Circuit refused an en banc rehearing. However 5 judges, joined an opinion dissenting from the denial of en banc review. (See prior posting.) Liberty Institute issued a press release on the filing of the petition for review with the Supreme Court. AP reports that a rally by 75 supporters to mark the filing of the petition also drew three dozen opponents.

Obama Adopts New Compromise On Contraceptive Coverage; Opponents Say It Is Insufficient

As reported by CNN, President Obama today announced a compromise in the dispute over whether health insurance policies offered to employees by religiously affiliated institutions will need to cover contraceptive services. (See prior related posting.)  According to a Fact Sheet released by the White House, "if a woman works for religious employers with objections to providing contraceptive services as part of its health plan, the religious employer will not be required to provide contraception coverage, but her insurance company will be required to offer contraceptive care free of charge." The Becket Fund quickly issued a press release calling the White House's new policy a "false compromise," explaining:

First, hundreds if not thousands of religious organizations self insure, meaning that they will still be forced to pay for these services in violation of their religious beliefs. Second, it is unclear which religious organizations are permitted to claim the new exemption, and whether it will extend to for-profit organizations, individuals, or non-denominational organizations. Third, money is fungible, and many religious organizations may still object to being forced to pay money to an insurance company which will turn around and provide contraception to its employees for free.

UPDATE: The U.S. Conference of Catholic Bishops also issued a statement on Friday (full text) saying that while the new policy requires careful moral analysis, the "only complete solution" is is for HHS to rescind the coverage mandate.

Texas Graduation Prayer Litigation Settled

Apparently bowing to the trial court judge's pressure to settle the case (see prior posting), the parties yesterday  entered a settlement agreement (full text) in Schultz v. Medina Valley Independent School District, (WD TX, Feb. 9, 2012). The suit, filed by Americans United, challenged the school district's plan to include student-led prayers in its graduation ceremony.  The settlement covers not only graduation prayer, but a range of issues relating to religion in the public schools. (AU press release). Under the settlement, the valedictorian or class president can deliver remarks at graduation. The school may not suggest, revise or edit the content of the remarks, and must deliver an oral and written disclaimer stating that students' remarks reflect their personal views and are not endorsed by the school. In this context, a prayer by a graduation speaker is permitted, but school district personnel on stage may not stand during the student prayer. The settlement also bars school teachers and administrators during school or school-sponsored activities from proselytizing, initiating prayers or joining students in prayer. Officials will not display religious symbols or quotations in school. No prayer will be included at football games, scholarship ceremonies or award banquets. The District will disclaim sponsorship of student speeches at games and activities. The school district will offer annual training for personnel as to student rights and will include information in the student handbook on the issue of religion in schools.

The court's Order approving the settlement (full text) reflected Judge Biery's idiosyncratic style.  The judge not only added an Appendix captioned An Ironic Venue for Separation of Church and State Litigation, but also added a "Personal Statement" to the Order. The Statement reads:

During the course of this litigation, many have played a part:

To the United States Marshal Service and local police who have provided heightened security: Thank you.

To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you.

To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability.

To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.

To the lawyers who have advocated professionally and respectfully for their clients' respective positions: Bless you.

The San Antonio Express-News reports on these developments.

Suit Filed Challenging Forest Service Approval of Jesus Statue

On Wednesday, the Freedom From Religion Foundation announced that it filed a federal lawsuit challenging the U.S. Forest Service's recent renewal of a permit for the Knights of Columbus to continue to display of a statue of Jesus near the top of a ski lift at the Whitefish Mountain Resort in Montana's Flathead National Forest. (See prior posting.) The complaint (full text) in Freedom From Religion Foundation, Inc. v. Weber, (D MT, filed 2/7/2012), alleges that the continued authorization of the statue violates the Establishment Clause. It claims that the actions of the Forest Service "in perpetuating a religious shrine on federal property, give the public appearance of government endorsement of religion, including an unmistakable symbolic link between the government and religion." The suit asks the court to order withdrawal of the permit and removal of the statue from Forest Service property. The American Center for Law and Justice quickly announced that it would file an amicus brief supporting the constitutionality of the statue. The Flathead (MT) Beacon reports on the lawsuit.

Suit Challenges 10 Commandments Monument At A New Mexico City Hall

The ACLU of New Mexico announced yesterday that it has filed a federal lawsuit on behalf of two Bloomfield, NM citizens seeking removal of a large Ten Commandments monument erected last year on the lawn of city hall. The complaint (full text) in Felix v. City of Bloomfield, New Mexico, (D NM, filed 2/8/2012), asserts that the monument violates the Establishment Clause. The complaint chronicles the various resolutions adopted by city council, largely at the urging of then council-member Kevin Mauzy, that led to the authorization of the monument. Among other things, the complaint contends that the city's religious purpose in authorizing the monument is demonstrated by the close working relationship that Mauzy had with the Alliance Defense Fund in obtaining city authorization. The Farmington (NM) Daily Times reports on the lawsuit.

Catholic News Organization Sues Over Contraception Coverage Mandate

The Becket Fund announced yesterday that it has filed a federal lawsuit in Alabama on behalf of a non-profit Catholic news organization challenging the application to it of the federal Mandate under the Affordable Care Act requiring health insurance policies (with limited exceptions) to cover contraceptive services for women.  The complaint (full text) in Eternal Word Television Network, Inc. v. Sebelius, (ND AL, filed 2/9/2012), alleges that EWTN, founded in 1981 by a cloistered nun, has grown to now become the largest Catholic media network in the world with 340 employees. The complaint asserts:

28. As part of its commitment to Catholic social teaching, EWTN promotes the well-being and health of its employees. In furtherance of these beliefs, EWTN has striven over the years to provide employee health coverage superior to coverage generally available in the Alabama market.

29. Moreover, as part of its religious commitment to the authoritative teachings of the Catholic Church, EWTN ensures that its insurance policies do not cover drugs, devices, services or procedures inconsistent with its faith. In particular, EWTN has taken great pains through the years to ensure that its insurance plans do not cover sterilization, contraception, or abortion.

The complaint claims that the mandate violates the Religious Freedom Restoration Act, the Free Exercise, free expression and Establishment clauses of the 1st Amendment, as well as the Administrative Procedure Act.

EWTN also issued a statement announcing the lawsuit, saying in part:

"We are taking this action to defend not only ourselves but also to protect other institutions – Catholic and non-Catholic, religious and secular – from having this mandate imposed upon them".... "The government is forcing EWTN, first, to inform its employees about how to get contraception, sterilization and abortifacient drugs, a concept known as forced speech. To make the matter worse, the government then will force EWTN to use its donors' funds to pay for these same morally objectionable procedures or to pay for the huge fines it will levy against us if we fail to provide health care insurance.

Becket Fund had previously filed two similar lawsuits (see prior posting 1, 2) on behalf of religiously-affiliated universities. Discussion of the Mandate in the media has generally focused on Catholic universities and hospitals. This appears to be the first significant challenge brought by an organization outside those two categories. ABC News reports on the new lawsuit.

UPDATE: According to Friday's Detroit Free Press, Michigan state attorney general Bill Schuette say he will take the lead in assembling states to file an amicus brief supporting the Becket Fund's position in the three cases.

University May Fire Human Resources VP For Expressing Her Religiously-Based Views On Gays

In Dixon v. University of Toledo, 2012 U.S. Dist. LEXIS 14934 (ND OH, Feb. 6, 2012), an Ohio federal district court upheld action by the University of Toledo in dismissing the Associate Vice President for Human Resources who, based on her religious views, published (without identifying her position with the University) a response to an op-ed in a local newspaper in which she objected to the idea that homosexuals are "civil rights victims" and said that homosexuality is purely a choice. In her suit challenging her dismissal, plaintiff alleged free speech and equal protection violations, repeatedly citing her religious views. The court held that plaintiff's free speech rights were not infringed because the nature of her position with the University meant that her statement could disrupt the Human Resources Department and cause prospective employees who are gay or lesbian to reconsider or withdraw their applications. Her statement could also lead to challenges to her employment decisions. The court also rejected plaintiff's equal protection claim.

Alleged West Point Establishment Clause Violation Would Not Support Relief Sought By Plaintiff

In Spadone v. McHugh, (D DC, Feb. 8, 2012), plaintiff was any Army recruit who had been expelled from the U.S. Military Academy at West Point after he plagiarized an essay in an Advanced Composition class. In suing to seek reinstatement, he claimed, among other things, that West Point violated the Establishment Clause when a panel investigating charges against him concluded he had not properly shown contrition or accepted responsibility and ordered him to stand with his body rigid in a military posture and to read aloud the "Cadet’s Prayer." The court concluded that even if plaintiff was correct, the violation would yield an order barring forced religious prayer, and not the preliminary injunction plaintiff sought ordering him re-enrolled in West Point.

Tribal Free Exercise Challenge To Road Project May Continue

In Slockish v. U.S. Federal Highway Administration, 2012 U.S. Dist. LEXIS 14422 (D OR, Feb. 6, 2012), an Oregon federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 152892, Sept. 21, 2011), and allowed members of the Yakima Nation Indian tribe to proceed with free exercise and RFRA claims against the Federal Highway Administration. In the case, plaintiffs claimed that a road widening project damaged sacred burial grounds, destroyed religious artifacts and buried a historic camp site, and that a new guard rail blocked their access to the camp site. The court, distinguishing the Supreme Court's decision in Lyng v. Northwest Indian Protective Association, held that there are disputes of fact that prevent granting summary judgment to defendants. The court, however, rejected a number of claims, including assertions of a protected right to maintain traditional culture and a claimed right of familial association to meditate and worship in the presence of ancestors.

U.S. Officials Help Mark Jewish Holiday of Tu Bishvat

Yesterday was the Jewish holiday of Tu Bishvat, a minor holiday also known as the "New Year of the trees."  Haaretz reports that to commemorate the day, the U.S. Department of Agriculture Under-Secretary who oversees the U.S. Forest Service, Harris Sherman, planted a redwood tree in a ceremony held near USDA headquarters in Washington. Other Obama officials this week planted trees in Arizona, Colorado and Israel to mark the holiday.

Washington State Legislature Passes Same-Sex Marriage Bill With Protections For Religious Organizations

The Washington state legislature yesterday gave final passage, and sent to the governor for her signature, SB 6239 legalizing same-sex marriage in the state. The House of Representatives passed the bill by a vote of 55-43, after the state Senate passed it last week by a vote of 28-21. (See prior related posting.)  CNN reports that Gov. Christine Gregoire will sign the bill that will go into effect in June at the end of the legislative session-- unless opponents place it on the November ballot to seek voter disapproval. The bill contains a number of provisions to protect churches, religious organizations and clergy. No member of the clergy is required to perform or recognized a same-sex marriage. No religious organization or religiously affiliated educational institution is required to provide accommodations, facilities (including campus chapels), goods or services related to the solemnization of a marriage. The bill also provides that:

No state agency or local government may base a decision to penalize, withhold benefits from, or refuse to contract with any religious organization on the refusal of a person associated with such religious organization to solemnize or recognize a marriage under this section.

 The bill defines "religious organization" to include faith-based social service organizations even if they offer services to the broader community.

11th Circuit: No Religious Discrimination In Lay Off of Christian Counselor

In Walden v. Centers for Disease Control and Prevention, (11th Cir., Feb. 7, 2012), the U.S. 11th Circuit Court of Appeals rejected claims by Marcia Walden, a counselor in an employee assistance program at the CDC, that her free exercise rights under the 1st Amendment and RFRA were violated when she was laid off because of the way in which she handled a client in need of same-sex relationship counseling. Walden was employed by Computer Sciences Corp. which ran the employee assistance program for CDC, and her lay off came when CDC insisted on it.  Walden is a devout Christian who believes that same-sex relationships are immoral.  She referred a CDC employee client to an outside counselor, telling the client that the referral was "based on my personal values".  The client said she felt "judged and condemned" by this referral. Walden refused the suggestion that in the future in referring out a gay or lesbian client, she not say it is because of her values. The court concluded:

The record is devoid of evidence supporting Ms. Walden’s claim that either defendant called for her removal from the EAP contract due to her religiously-based need to refer clients who needed same-sex relationship counseling.

Instead, ... they were concerned that she would behave the same way [in referring out a client] if a similar situation were to arise in the future. And, significantly, Ms. Walden testified that it was not part of her “religious beliefs” to tell clients ... that she could not counsel them due to her religious beliefs or personal values. Instead, she said she wanted “to be honest with my clients.”... She ... explained that “it seemed unfair that [Ms. Doe] was able to talk about being gay and lesbian, and yet I couldn’t freely talk about me and my religious beliefs, or being Christian.... To me, it’s about honesty. If she can be honest – I mean, I should be honest about why I’m transferring her.”

The court also rejected Walden's Title VII employment discrimination claim because reasonable accommodation had been offered by encouraging Walden to seek another position within the company. The Wall Street Journal yesterday reported on the decision.

Evolution Weekend Designed To Show Religious Acceptance of Science

This week end is the 7th annual Evolution Weekend, sponsored by the Clergy Letter Project. The weekend is designed to demonstrate that many religious faiths see no conflict between religion and science. The Project website says:

Religious people from many diverse faith traditions and locations around the world understand that evolution is quite simply sound science; and for them, it does not in any way threaten, demean, or diminish their faith in God. In fact, for many, the wonders of science often enhance and deepen their awe and gratitude towards God.

Suit Challenges Exclusion of Unvaccinated Students When Disease Occurs

Today's New York Daily News reports that two parents are suing school officials over decisions by two principals to send unvaccinated children home when other students at their schools contracted communicable diseases.  Plaintiffs had invoked a state law that allowed them to object on religious grounds to having their children vaccinated. They are now challenging a Chancellor's regulation that allows principals to exclude unvaccinated children for up to 3 weeks when others have contracted measles, mumps, chicken pox or other similar diseases. Neither plaintiff would disclose their religious affiliation, but one explained: "It is my opinion that resorting to vaccinations demonstrates a lack of faith in God, which would anger God and therefore be sacrilegious." The suit was originally filed in state court but has been removed to federal district court in Brooklyn where the court may schedule an emergency hearing soon.

Indian Court Orders State To Pay For 2002 Riot Damage To Religious Buildings

The High Court in the Indian state of Gujarat today ordered the state government to pay compensation to over 500 religious structures that were damaged in riots in 2002, according to the Economic Times. More than 1000 people were killed in the 2002 Muslim-Hindu riots that followed the burning of a train that was transporting Hindu pilgrims. (Background.) The 3-judge court in Gujarat found that inaction and negligence by the state government in preventing the riots resulted in large-scale damage to religious structures. The court ruled in a case brought by the Islamic Relief Committee of Gujarat. The government has already paid damages for destruction of homes and commercial establishments. The High Court ordered the principal judges of the state's 26 districts to receive applications from religious organizations and send their decisions on them to the High Court within 6 months.

USCIRF Urges Obama To Raise Human Rights Issues With China's VP

Chinese Vice President Xi Jinping will be visiting the United States next week. (Voice of America). Yesterday, the U.S. Commission on International Religious Freedom sent a letter (full text) to President Obama urging him to raise human rights and religious freedom concerns during his meetings with Xi, and to take other suggested steps to demonstrate U.S. concern about human rights in China.

White House Suggests Some Bargaining Room On Contraceptive Coverage Mandate

Facing a continued barrage of criticism particularly from Catholic organizations over its mandate requiring coverage of contraceptive services in health insurance plans offered by religiously affiliated universities and hospitals, the White House yesterday suggested that there may be room for compromise.  In the daily press briefing (full text), White House Press Secretary Jay Carney engaged in this exchange with reporters:

          Q   ...  On the decision about the religious-affiliated groups and contraception, you were asked last week if there’s a debate within the administration about reconsidering, and you flatly said, no, the decision has been made.  Does that absolutely remain the case, no reconsideration?

         MR. CARNEY:  It does.  The President is committed to making sure that all women have access to these important preventive services.  But I think it is important to remember what was clearly stated when this policy decision was announced and that is that we will be working with those organizations and individuals who have concerns about the implementation of this rule, and that’s why that time period of a full year beginning in August of 2012 was put into place because the President is very interested in finding the appropriate balance between religious beliefs and convictions -- and he takes those very seriously -- and his commitment to making sure that women of all faiths have access to these important health care preventive services.  So that process will continue. And I think that that point was overlooked in the initial coverage of the decision....

       Q    ... [T]here’s a perception out there -- and in some cases David Axelrod’s comments led some to think that the very implementation you’ve talked about over the next year or so will lead to a different outcome, that in the rule-making, there will be some deal cut, some out given to get away from this controversy.  Ultimately, no matter how it’s implemented, will the bottom line remain the same, that these organizations have to provide that contraceptive coverage?

        MR. CARNEY:  The President’s interest is in making sure that -- on the one side of this balance ... that all ... women here, have access to the same preventive care services.

        He is also concerned about and understands the religious concerns that have been raised and takes seriously the religious convictions that are behind the concerns that have been raised.  And we will work in this period to see if there is a way, to try to find a way to make sure that the implementation of the policy or to see if the implementation of the policy can be done in a way that allays some of those concerns.

        But there are ways to I think help resolve this issue that ensures that we provide that important preventive service, that health care coverage, to all women, and that tries -- in a way that also tries to allay some of these concerns.

The Los Angeles Times characterized Carney's comments as more a shift in emphasis than substance.

South Carolina Now Sells Specialty "I Believe" Plates

AP reported yesterday that South Carolina motorists can now purchase "I Believe" license tags. They have been available since January 4, when they were added to some 130 other specialty plates. By the end of January, 56 pf the new tags had been sold. Specialty plates cost an added $25 which goes to the sponsoring charity.  The new plates are sponsored by www.IBELIEVEsc.net, which will use the profits for nonpolitical community efforts. The plates (photo) feature the letters "JC" between 3 crosses on a hill and the plate number, and also display the sponsoring charity's name.  In 2009, a federal district court held that a special South Carolina government-sponsored statutory authorization of an "I Believe" license tag violated the Establishment Clause. (See prior posting.) The new plates are being issued under the general provisions of SCL Sec. 56-3-8000 "Non-profit organization license plates."

Split 9th Circuit Invalidates Proposition 8 Without Broadly Ruling On Same-Sex Marriage Right

The 9th Circuit U.S. Court of Appeals today, in a 2-1 decision struck down California's Proposition 8 that eliminated the right-- previously created by the California Supreme Court's interpretation of the state constitution-- for same-sex couples to marry. In Perry v. Brown, (9th Cir., Feb. 7, 2012), [opinion on alternate website in case of traffic overload] Judge Reinhardt, in an opinion joined by Judge Hawkins, held that even though California may not have had the obligation to grant same-sex couples the right to marry, once it did, it could not take that right away without some legitimate reason for doing so. Here there was no legitimate reason. Instead, the majority concluded:

Proposition 8 servers no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for "laws of this sort."

The court briefly discussed the argument that Proposition 8 furthered a legitimate interest in protecting religious liberty.  The majority said:

the religious-liberty interest that Proposition 8 supposedly promoted was to decrease the likelihood that religious organizations would be penalized, under California's antidiscrimination laws and other government policies concerning sexual orientation, for refusing to provide services to families headed by same-sex spouses. But Proposition 8 did nothing to affect those laws.... Amicus's argument is thus more properly read as an appeal to the Legislature, seeking reform of the state's antidiscrimination laws to include greater accommodations for religious organizations.

Judge Smith dissented on this issue, concluding that people of California might have rationally believed that Proposition 8 is related to responsible procreation and optimal parenting.

The Court unanimously held that the proponents of Proposition 8 had standing to bring the appeal, and unanimously refused to accept the argument that the decision should be vacated because of the trial judge's interest in being able to marry his own same-sex partner.

Washington Post reports on the decision.

Bishops' Health Insurance Letter Created Special Issues For Military Chaplains

As previously reported, On Jan. 29 Catholic Churches around the country read similar letters from their local bishops condemning the Obama administration's new rules requiring contraception coverage by most health plans, with exemptions that are too narrow to include most Catholic schools and hospitals. It appears that the letter posed particular issues for Catholic chaplains in the U.S. military who received a letter to read from Archbishop Timothy Broglio, head of the Archdiocese for the Military Services USA. God and Country blog reports that  Army’s Office of the Chief of Chaplains e-mailed senior chaplains advising them that Broglio had not coordinated the letter with the Chief of Chaplains Office. The e-mail advised chaplains not to read the letter from the pulpit, but instead to merely mention it in Mass announcements and distribute it in printed form in the back of the chapel. Archbishop Broglio, who apparently believed that this interference violated his religious liberty, contacted Army Secretary John McHugh. Their discussions led to the Army withdrawing its objections to the letter being read from the pulpit, but Broglio removing from the letter one sentence that could have been seen as encouraging civil disobedience. The sentence read: "“We cannot — we will not — comply with this unjust law"

France Opens First Municipal Muslim Cemetery

AFP and RFI report that on Monday, France opened its first municipal Muslim cemetery.  France's 1905 law on the separation of church and state bars creating municipal cemeteries limited to only one religion. This means that cities have been limited to setting aside Muslim-only sections in existing cemeteries.  However the new Muslim cemetery was opened in the city of Strasbourg in the Alsace-Moselle region which is subject to a different basic law because it came under French control only after World War I. Muslims in France see the new cemetery as an important symbol of their belonging after a series of measures aimed at maintaining France's secular tradition, such as one barring wearing the full-face veil (see prior posting), were perceived as anti-Muslim.

Court Says Christian Prayers At County Board Meetings Violate Establishment Clause

On Friday, a Virginia federal district court issued three separate opinions in Jane Doe v. Pittsylvania County, Virginia, (WD VA, Feb. 2, 2012).  In the first opinion, the court denied defendants' motion to dismiss the lawsuit which challenges on Establishment Clause grounds the Pittsylvania County Board of Supervisors' practice of opening its sessions with Christian prayers.The court held that plaintiff, who regularly attends Board meetings, has standing to bring the challenge. The court also rejected defendants' arguments that doctrines of legislative immunity and privilege require dismissal. It concluded that plaintiff adequately alleged that the county's practice violates the Establishment Clause.

In a second opinion, the court granted a preliminary injunction, barring the county "during the pendency of this case, from continuing its present practice of routinely opening its meetings with Christian prayers." It held that plaintiff is "likely to prevail on her claim that the Board's practice of regularly opening meetings with prayers making specific reference to Jesus Christ constitutes government advancement and endorsement of one faith..."

Finally in a third opinion, the court held that plaintiff cannot continue to prosecute the case as "Jane Doe," but must furnish her actual name if she intends to proceed with the lawsuit. An ACLU press release reports on the decisions.

Recent Articles and Forthcoming Books of Interest

Articles from SSRN:

• Abdulla Galadari, Diversity in Heaven: Qur’anic Perspective Beyond Pluralism, (The International Journal of Diversity in Organizations, Communities and Nations, Vol. 11, No. 3, pp. 135–150, 2012).
• Nina J. Crimm, Reframing the Issue and Cultivating U.S.-based Muslim Humanitarian Relief Organizations, (March 20, 2011).
• KIIT Law School, Shakti Deb, A Critical Analysis of Child Marriage Law in India with Special Reference to Hindu Law, (February 2, 2012).

Forthcoming books:

• Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion, Random House, March 13, 2012).
• John J. Coughlin, Law, Person, and Community: Philosophical, Theological, and Comparative Perspectives on Canon Law, (Oxford Univ. Press, Feb. 2012).
• Martha C. Nussbaum, The New Religious Intolerance: Overcoming the Politics of Fear in an Anxious Age, (Harvard Univ. Press, March 19, 2012).

Ron Paul Supporters Object To Religious Limits For Participating In Late Nevada Caucus

As previously reported, the Nevada Republican Party yesterday scheduled an evening caucus to accommodate Orthodox Jews who could not attend Saturday daytime caucuses for religious reasons. The New York Times reports, however, that the party required anyone attending the caucus to sign a declaration under penalties of perjury that he or she had been unable to attend a caucus earlier in the day because of "my religious beliefs."  This would essentially limit participation to observant Jews and Seventh Day Adventists. However many Ron Paul supporters-- encouraged by Paul campaign robo-calls-- who had been unable to participate in earlier caucuses for other reasons tried to attend the evening caucus. Some who refused to sign the declaration were turned away.  The Paul campaign Nevada chairman said that this amounts to illegally creating a religious test to vote, and suggested that a lawsuit could be forthcoming. Apparently a number of Paul supporters signed the declaration even though they had non-religious reasons for attending. At the caucus, Paul receive 183 votes-- nearly 58% of those cast in the caucus. This seems to be an unlikely result if the caucus was attended mainly by Orthodox Jews given Paul's views on Israel.