Church Sues Over Permit Denial To Leaflet Outside LDS Temple Open House

The ACLU of Utah announced Tuesday that it had filed a federal lawsuit on behalf of the Main Street Church of Brigham City challenging the constitutionality of Brigham City, Utah's so-called Free Speech Zone Ordinance that requires a permit for the Church to hand out literature on the sidewalks of the city.  The complaint (full text) in Main Street Church of Brigham City v. Brigham City, Utah, (D UT, filed 9/11/2012), alleges that the Church wants to hand out literature on differences between its beliefs and those of the Church of Jesus Christ of Latter Day Saints.  It wants to leaflet and engage in discussions with those receiving their literature during the month-long Open House for the LDS Temple in Brigham City.  It applied for a permit to carry out its activities on the public sidewalks adjacent to the streets on all four sides of the LDS Temple, but the city denied permission to leaflet on the two sidewalks with the heaviest pedestrian traffic. The suit alleges that the ordinance unconstitutionally restricts plaintiff's freedom of expression and assembly as well as its free exercise of religion.

Hobby Lobby Challenges ACA Contraceptive Coverage Mandate On Religious Grounds

Yesterday the Becket Fund announced yet another lawsuit challenging on free exercise grounds the contraception coverage mandate under the Affordable Care Act.  This time the plaintiffs are Hobby Lobby, a privately held chain of hobby supply stores that operates over 500 stores in 41 states with a total of over 13,000 employees, and Mardel, Inc., a chain of 35 bookstores in 7 states that sells Christian themed materials.  Both companies are owned by the Green family who are Evangelical Christians. The complaint (full text) in Hobby Lobby Stores, Inc. v. Sebelius, (WD OK, filed 9/12/2012), sets forth the Green family's religious beliefs opposing furnishing of coverage for "abortion-causing" contraceptive drugs and IUDs, such as Plan B and Ella. They do not object to providing coverage for other contraceptives.  The complaint sets out at length the manner in which the owners' Christian values are reflected in their operation and management of Hobby Lobby. The suit alleges violation of the 1st and 5th Amendments, the Religious Freedom Restoration Act and the Administrative Procedure Act.

Egypt Plans Legal Action Against Makers of Anti-Muslim Film

Reuters reports that Egyptian President Mohamed Mursi has asked the Egyptian embassy in Washington, D.C. to take legal action in the U.S. against the makers of the film Innocence of Muslims. The film was cited as the reason for attacks on the U.S. Embassy in Egypt yesterday.

U.S. Embassy's Initial Statement Criticizing Anti-Muslim Video Leads To Political Controversy

As reported by CBS News, the statement initially issued by the U.S. Embassy in Cairo, Egypt yesterday as demonstrators outside it began to protest an anti-Muslim film made in the United States has created a political controversy.  The Embassy statement read as follows in full:

The Embassy of the United States in Cairo condemns the continuing efforts by misguided individuals to hurt the religious feelings of Muslims – as we condemn efforts to offend believers of all religions. Today, the 11th anniversary of the September 11, 2001 terrorist attacks on the United States, Americans are honoring our patriots and those who serve our nation as the fitting response to the enemies of democracy. Respect for religious beliefs is a cornerstone of American democracy. We firmly reject the actions by those who abuse the universal right of free speech to hurt the religious beliefs of others.

Then, after word also came of attacks on the U.S. Consulate in Libya, but before it was known that U.S. Ambassador J. Christopher Stevens had been killed, Republican nominee Mitt Romney issued the following statement:

I'm outraged by the attacks on American diplomatic missions in Libya and Egypt and by the death of an American consulate worker in Benghazi.

It's disgraceful that the Obama Administration's first response was not to condemn attacks on our diplomatic missions, but to sympathize with those who waged the attacks.

Then, as reported by ABC News, the Obama administration moved to distance itself from the statement issued by the Cairo embassy. An administration official said: "no one in Washington approved that statement before it was released and it doesn’t reflect the views of the U.S. government."

This morning, Mitt Romney renewed his criticism in a statement (full text) delivered in Jacksonville, Florida. He said in part:

We have confidence in our cause in America. We respect our Constitution. We stand for the principles our Constitution protects. We encourage other nations to understand and respect the principles of our Constitution, because we recognize that these principles are the ultimate source of freedom for individuals around the world.

I also believe the administration was wrong to stand by a statement sympathizing with those who had breached our embassy in Egypt, instead of condemning their actions. It’s never too early for the United States government to condemn attacks on Americans and to defend our values.

The White House distanced itself last night from the statement, saying it wasn’t cleared by Washington. That reflects the mixed signals they’re sending to the world.

Then in response to a reporter's question, Romney added:

The president takes responsibility not just for the words that come from his mouth, but also for the words that come from his ambassadors , from his administration, form his embassies, from his state department. They clearly sent mixed messages to the world. The statement that came from the administration — and the embassy is the administration — the statement that came from the administration was a statement which is akin to apology. And I think was a severe miscalculation. They clearly ...sent mixed messages to the world.

 Meanwhile, at the White House today, President Obama released a statement which reads in part:

I strongly condemn the outrageous attack on our diplomatic facility in Benghazi.... While the United States rejects efforts to denigrate the religious beliefs of others, we must all unequivocally oppose the kind of senseless violence that took the lives of these public servants.

California Developer Behind Film That Triggered Attacks In Egypt and Libya

Fox News reports today that Sam Bacile, who wrote and directed the controversial film Innocence of Muslims (YouTube trailer for film) went into hiding Tuesday after the film was blamed in the attacks on the U.S. embassy in Egypt and the U.S. consulate in Libya. (See prior posting.) Bacile said he intended the film to be provocative, describing Islams as "a cancer." Bacile is a California real estate developer who identifies himself as an Israeli Jew. He says he financed the $5 million film with donations from more than 100 Jewish donors.

Israeli Court Rejects Reception Hall Owners' Religious Objections To Same-Sex Marriage

According to Haaretz today, the Jerusalem Magistrate's Court has for the first time under Israeli law held that owners of a reception hall may not refuse on religious grounds to host a same-sex wedding reception. The court awarded damages of 60,000 NIS ($15,196 US) and imposed 20,000 NIS in legal fees and court costs on the owners of the reception hall who are members of a sect of Messianic Jews. A lesbian couple, Tal Ya'akovovich and Yael Biran, booked the hall for a reception, but the owners canceled the reservation when they realized the reception was for a same-sex couple. The owners say that based on verses from the Old and New Testaments, they believe that homosexuality is an "abomination." The court refused to accept the owners' claim that their business has a religious character.  The court said:

Every person who opens a public business in Israel should know that they must serve the whole public equally, without discrimination, according to laws, which cover sexual orientation as well. As soon as the defendants opened their doors to all, they cannot close them for those who they believe do not meet the requirements found in the Bible or New Testament, thereby damaging their dignity and sensitivities.

The court also said:

Rejection, verbal abuse, and humiliation of another based on their sex or sexual orientation constitutes sexual harassment. Sexual harassment does not only include sexual exploitation, but also, and perhaps principally, ridiculing another person for their sex or sexual orientation… and in this case, the plaintiffs were ridiculed because of their sexual orientation

Virginia Grants Over 7,000 Religious Exemptions From Compulsory Education

Code of Virginia § 22.1-254 generally requiring school attendance by children goes on to provide:

A school board shall excuse from attendance at school: 

1. Any pupil who, together with his parents, by reason of bona fide religious training or belief is conscientiously opposed to attendance at school. For purposes of this subdivision, "bona fide religious training or belief" does not include essentially political, sociological or philosophical views or a merely personal moral code....

Virginia is only one of 4 states that has a specific religious exemption, and is the only state that has no explicit alternative educational requirement for those granted an exemption.  Yesterday's Charlottesville (VA) Daily Progress reports that a study by the Child Advocacy Clinic at the University of Virginia law school found that 7,296 children were granted exemptions under this provision in the 2010-11 school year. This is up from 5,479 in the previous year. While the student's views, as well as those of his or her parents are supposed to be considered by the local school board in granting exemptions, the study found that the schools had contact with the students involved in only 10% of the cases, and in less than 1% had direct contact with the student. Almost 95% of the school boards said they had never denied a request for exemption.

Anti-Muslim Video Cited In Attacks On U.S. Embassies In Egypt and Libya

The U.S. embassy in Egypt and the U.S. consulate in Libya were attacked yesterday, by demonstrators citing the movie "Innocence of Muslims" as the reason. Reuters reports that U.S. ambassador to Libya, Christopher Stevens and 3 staff members were killed in a rocket attack on their car as they were being driven from the consulate building to a safer location..  The New York Times reports these details on the video:

The mobs were set off by Egyptian media reports about a 14-minute trailer for the video, called “Innocence of Muslims,” that was released on the Web. The trailer opens with scenes of Egyptian security forces standing idle as Muslims pillage and burn the homes of Egyptian Christians. Then it cuts to cartoonish scenes depicting the Prophet Muhammad as a child of uncertain parentage, a buffoon, a womanizer, a homosexual, a child molester and a greedy, bloodthirsty thug.

The trailer was uploaded to YouTube by Sam Bacile, whom The Wall Street Journal Web site identified as a 52-year old Israeli-American real estate developer in California. He told the Web site he had raised $5 million from 100 Jewish donors to make the film. “Islam is a cancer,” Mr. Bacile was quoted as saying.

The video gained international attention when a Florida pastor began promoting it along with his own proclamation of Sept. 11 as “International Judge Muhammad Day.”

In a statement on Tuesday, the pastor, Terry Jones of Gainesville, Fla., called the film “an American production, not designed to attack Muslims but to show the destructive ideology of Islam” and said it “further reveals in a satirical fashion the life of Muhammad.”

In a statement (full text) issued yesterday, Secretary of State Hillary Rodham Clinton said in part:

I condemn in the strongest terms the attack on our mission in Benghazi today.... Some have sought to justify this vicious behavior as a response to inflammatory material posted on the Internet. The United States deplores any intentional effort to denigrate the religious beliefs of others. Our commitment to religious tolerance goes back to the very beginning of our nation. But let me be clear: There is never any justification for violent acts of this kind.

6th Circuit: Policeman's Prayer With Defendant Not Cause of Incriminating Statements

In United States v. Wynn, (6th Cir., Sept. 7, 2012), the U.S. 6th Circuit Court of Appeals refused to suppress incriminating statements made by defendant, Kenneth Wynn, who was convicted of firearms possession violations.  Wynn argued that his statements were made after a police officer invited him to pray, that this constituted a custodial interrogation, and he had not received Miranda warnings.  The district court however had found that the incriminating statements were made as an emotional response to Wynn's girlfriend's refusal to speak with him when he was sitting in a police car, not in response to any prayer or statement by the police.

2nd Circuit Affirms Dismissal of Dissident Hasidic Group's Discrimination Claims Against Kiryas Joel

In Kiryas Joel Alliance v. Village of Kiryas Joel, (2d Cir., Sept. 10, 2012), the U.S. 2nd Circuit Court of Appeals affirmed a New York federal district court's dismissal of a lawsuit filed by a dissident faction of the Satmar Hasidic sect living in Village of Kiryas Joel, New York. Plaintiffs reject the authority of the sect's current Grand Rebbe, Aron Teitelbaum, who leads the dominant religious organization in the Village, Congregation Yetev. Plaintiffs claim that because of their refusal to accept the Grand Rebbe, they have been discriminated against in various ways by the Village, which is run by Congregation Yetev members. The court dismissed plaintiffs' claims of discriminatory application of zoning law to them on res judicata grounds. It held that plaintiffs lack standing to assert certain claims of injury to non-parties to the litigation. It rejected plaintiffs' equal protection religious discrimination claims, finding that plaintiffs had not shown that defendants were motivated by religious, as opposed to political, differences. Finally the court also rejected plaintiffs' Establishment Clause and conspiracy claims.

State Court Refuses To Enforce Mahr Agreement In Divorce Action

In Soleimani v. Soleimani, (KA Dist. Ct., Aug. 28, 2012), a divorce action, a Kansas state trial court refused to enforce a mahr agreement-- an Islamic premarital contract-- under which the wife claimed she was entitled her to $677,000 from her husband.  The court said in part:

The parties agreed in the Pretrial Order to the application of Kansas law.  By urging the Court to adopt and interpret a mahr contract that is written in Farsi and dictated by interpretations of Iranian and/or religious law, the Court would be compelled to apply a contract 1) it cannot read and 2) that is contrary to the public policy of Kansas law....

Another cautionary concern in enforcing a mahr agreement is that they stem from jurisdictions that do not separate church and state, and may, in fact, embed discrimination through religious doctrine. This, in turn, creates an obvious tension between the Establishment and Equal Protection Clauses under the federal constitution [and similar state provisions]....

Perpetuating such discrimination under the guise of judicial sensitivity to Establishment Clause prohibitions would, in effect, abdicate the judiciary’s overall constitutional role to protect such fundamental rights.... Even assuming this Court could interpret the contract, it would then be put in the dilemma of fashioning a remedy under a contract that clearly emanates from a legal code that may be antithetical to Kansas law.  

Volokh Conspiracy has more on the decision. [Thanks to Steven H. Sholk for the lead.]

Iranian Pastor, Originally Sentenced To Death, Is Released From Custody

According to the London Mail, Iranian Christian pastor Youcef Nadarkhani has been released from prison after extensive pressure from foreign governments.  Last year, Nadarkhani (who was born to Muslim parents) was convicted by a provincial court of apostasy and sentenced to death. On appeal, Iran's Supreme Court upheld the death sentence, but remanded to the lower court for re-examination of  whether Nadarkhani had been a practicing Muslim adult before converting to Christianity. The Supreme Court also said that the death sentence could be overturned if Nadarkhani recanted. However the 34-year-old pastor refused to do so. (See prior posting.)  At a hearing on Saturday, charges against Nadarkhani were reduced to evangelizing Muslims, which carries a 3-year sentence.  He was released from custody for time served. [Thanks to Pew Sitter for the lead.]

Florida Democratic County Official Resigns Over His Remarks About Christian Supporters of Israel

The Palm Beach Post reports that Palm Beach County, Florida, Democratic Party Chairman Mark Alan Siegel resigned Friday, two days after making controversial remarks about pro-Israel Christians.  Interviewed at the Democratic National Convention by Patriot Update's Scottie Hughes, Siegel-- who is Jewish-- said of Christians who support Israel:

They’re not our friends. They want Israel to pursue policies which are antithetical with its security and existence. The worst possible allies for the Jewish state are the fundamentalist Christians, who want Jews to die and convert so they can bring on the second coming of their Lord. It is a false friendship. They are seeking their own ends and not ours.

After initially saying that he would merely take a leave of absence, Siegel then resigned completely, saying: "My comments merely served as a distraction to the good work of Democrats in Palm Beach. Again, I express my deepest apologies to anyone I may have offended."

Presbyterian Congregation's Property Belongs To Parent Church

In Windwood Presbyterian Church, Inc. v. The Presbyterian Church (USA), (TX App., Aug. 30, 2012), a Texas appeals court held that under both the rule of deference to decisions of a parent hierarchical church and the application of neutral principles of law, the property of a Houston, Texas Presbyterian congregation belongs to the parent church. The court concluded:

by joining the PCUSA in 1983 and remaining a member of that hierarchical church, Windwood has assented to following PCUSA’s constitution, which includes a trust provision over Windwood’s property in PCUSA’s favor.

Recent Articles of Interest

From SSRN:

• Christopher C. Lund, The Future of the Establishment Clause in Context: A Response to Ledewitz, (Chicago-Kent Law Review, Vol. 87, p. 767, 2012, symposium).
• Nicholas Walter, Religious Arbitration in the United States and Canada, (Santa Clara Law Review, Vol. 52, No. 2, 2012).
• Michael A. Helfand, Religion's Footnote Four: Church Autonomy as Arbitration, (Minnesota Law Review, Vol. 97, Forthcoming).
• Robert W. Nicholson, Managing the Divine Jurisdiction: Sacred Space and the Limits of Law on the Temple Mount (1917-1948), (August 31, 2012).
• Justin Pierce, Blasphemy: Religious or Secular Law?,  (September 5, 2012).
• Robert C. Blitt, Springtime for Freedom of Religion or Belief: Will Newly Democratic Arab States Guarantee International Human Rights Norms or Perpetuate Their Violation?, (September 8, 2012).
• Beverley Baines, Polygamy and Feminist Constitutionalism, (in B. Baines, D. Barak-Erez, and T. Kahana, eds., Feminist Constitutionalism: Global Perspectives, Cambridge University Press, 2012).

President Declares This Weekend As Days of Prayer and Remembrance For 9-11 Victims

Last Friday, as we near the 11th anniversary of the 9-11 attacks, President Barack Obama issued a Proclamation (full text) declaring September 7 through 9 as National Days of Prayer and Remembrance for the victims of 9-11.

Recent Prisoner Free Exercise Cases

In Morris v. Morrison, (8th Cir., Aug. 31, 2012), the 8th Circuit Court of Appeals affirmed an Iowa district court's dismissal on qualified immunity grounds of a prisoner's lawsuit alleging damage to religious property during a prison cell search.

In Davilla v. National Inmate Appeals Coordinator, 2012 U.S. Dist. LEXIS 124451 (SD GA, Aug. 31, 2012), a Georgia federal district court, disagreeing in part with a magistrate's recommendation, permitted an inmate to proceed with his 1st Amendment challenge to prison policies that bar him from receiving religious items (here Santeria beads and cowrie divination shells) through authorized vendors.  The court also allowed plaintiff to proceed with his claim for injunctive relief under RFRA, but held that damages are not recoverable as a remedy under RFRA. UPDATE: The magistrate's recommendation is at 2012 U.S. Dist. LEXIS 130391, June 15, 2012).

In Oliverez v. Albitre, 2012 U.S. Dist. LEXIS 124553 (ED CA, Aug. 31, 2012), a California federal magistrate judge recommended that an inmate be permitted to proceed with his 1st Amendment claim against the chaplain's office Native American spiritual leader, but not against the warden, for denying him access to his previously-purchased spiritual oil for worship.

In Mendez v. Trevino, 2012 U.S. Dist. LEXIS 124591 (ED CA, Aug. 30, 2012), a California federal magistrate judge dismissed, with leave to amend, a suit by a Native American "Yaqui" Indian whose religious practice involves both Native American and Christian elements. He was not allowed to attend Native American services because he was already attending Christian services and because of hearsay information of drug usage and beadwork sale.

In Jones v. Petty, 2012 U.S. Dist. LEXIS 124850 (MD GA, Sept. 4, 2012), a Georgia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 124849, Aug. 2, 2012) and dismissed a Muslim inmate's complaint that he was prevented from practicing Ramadan, obtaining a prayer rug and religious books, obtaining his prayer towel, and obtaining a pork-free breakfast tray.

In Walters v. Santa Clara Department of Corrections Elmwood Facility Commander 2012 U.S. Dist. LEXIS 125281 (ND CA, Sept. 4, 2012), a California federal district court permitted a Muslim inmate to proceed with his 1st Amendment, RLUIPA and equal protection complaints alleging failure to provide him an adequate religious diet.

In Countryman v. Palmer, 2012 U.S. Dist. LEXIS 125224 (D NV, Aug. 6, 2012), a Nevada federal magistrate judge recommended denial of a preliminary injunction in a suit by an Episcopalian inmate who objected to the prison's cancellation of a planned 3-day event by the Kairos Prison Ministries.

In Malipurathu v. Jones, 2012 U.S. Dist. LEXIS 124988 (WD OK, Sept. 4, 2012), an Oklahoma federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 124983, June 14, 2012) and rejected complaints of a Sikh inmate who had been dismissed from a drug treatment program in which he had been placed in lieu of incarceration. Plaintiff objected that the program included Christian-based prayers.

In Howard v. Wiglesworth, 2012 U.S. Dist. LEXIS 125617 (SD MI, Sept. 5, 2012), a Mississippi federal magistrate judge dismissed a lawsuit by a Rastafarian inmate complaining that no Rastafarian religious services were offered (no one was available to lead them), and claiming that he was not provided a religious diet or permitted to wear his dreadlocks.

In Jahad Ali #56036 v. Clements, 2012 U.S. Dist. LEXIS 125612 (D CO, Sept. 4, 2012), a Colorado federal magistrate judge ruled that an inmate's complaint that prison authorities refused to honor a 1992 agreement to recognize his religious and legal name needed to be amended within 30 days to set forth appropriate allegations or it will be dismissed.

In Manson v. Sexton, 2012 U.S. Dist. LEXIS 125750 (ND AL, Sept. 5, 2012), an Alabama federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 125733, Aug. 8. 2012) and dismissed without prejudice an inmate generalized claim that he was provided religious materials that were not "necessarily of [his] belief."

Pakistani Girl Charged With Blasphemy Released On Bail

In Pakistan today, Rimsha Masih, a Christian girl being held on controversial blasphemy charges, was released on 1 million rupees ($10,500 US) bail. The New York Times reports that Masih was driven away in secrecy from a Rawalpindi prison to a waiting helicopter. The court found that she is 14 years old, with a mental capacity lower than that.  Masih, who works as a sweeper, was charged with burning pages from a holy book, while a Muslim cleric was charged with planting pages from the Qur’an to make her actions appear worse. (See prior posting.) The case has been widely publicized internationally as an example of abuses in the use of Pakistan’s blasphemy laws.

Suit Challenging Exclusion From Courtroom Because of Religious Headdress Can Proceed Against City

In Daniels v. City of North Charleston, 2012 U.S. Dist. LEXIS 126314 (D SC, Sept. 6, 2012), a South Carolina federal district court adopted a magistrate’s recommendations (2012 U.S. Dist. LEXIS 126767, Aug. 9, 2012) and permitted plaintiff (an adherent of the East African Hebrew religion) to move ahead with several of his claims growing out of the refusal of Municipal Court constables to allow him to enter the court room wearing religious headdress . The court allowed plaintiff to proceed on his charges that the city violated his free exercise rights under the federal constitution as well as under the South Carolina Religious Freedom Act. It also allowed him to proceed on certain common law claims. However religious discrimination and other constitutional claims against the constables in their individual capacities were dismissed on the basis of quasi-judicial immunity.

Feds Concur In Eliminating Offensive Name Of New Hampshire Pond

The Nashua (NH) Telegraph reports today that the U.S. Board of Geographic Names has officially approved the name change of a small pond in Mont Vernon, Hew Hapmshire so that it is no longer officially known as "Jew Pond." Instead its official name is now "Carleton Pond", though the USGS still lists" Jew Pond," as well as "Spring Pond," as a "variant name." The pond was created for a local hotel a century ago by damming a small brook. Originally called Spring Pond, it began to be called Jew Pond in the 1930's when the hotel was owned for a few years by Jewish businessmen from Boston. The name Jew Pond, which was seen as offensive by many, was changed by the town after the town's health officer, Rich Masters, raised the issue last year.

Missouri Bishop Convicted Of Failing To Report Suspicion of Child Abuse

Yesterday in Kansas City, Missouri, a state court judge after a brief non-jury trial convicted Catholic Bishop Robert W. Finn on one misdemeanor count of failing to report suspicion of child abuse (MRS 210.115). According to the Kansas City Star, this makes Finn the highest ranking U.S. Catholic cleric convicted in the Church's sex abuse scandals.  The charges grew out of the Church's discovery in December 2010 of hundreds of lewd photos of young girls on the laptop computer of of priest Shawn Ratigan. Police were not notified until May 2011. Finn was convicted on a charge covering the period from Feb. through May 2011, while he was acquitted on a second charge covering an earlier period of time. Finn was sentenced to two years' probation. If he complies with all the conditions, his criminal conviction could then be expunged.  Those conditions include strengthening training for clergy and administrators on child abuse reporting and recognizing child pornography; creating a $10,000 victim counseling fund; drawing up an approved list of treatment providers; and maintaining an ombudsman. Originally Finn's case had been set for a jury trial, but prosecutors and defense attorney instead yesterday submitted 69 paragraphs of stipulated facts in a bench trial. In exchange for his cooperation in the case, authorities agreed not to prosecute second-ranking diocese official, Monsignor Robert Murphy, who ultimately reported suspicions to the police.

Fact Issues Remain In Nursing Aide's Firing After Refusing To Pray Rosary With Resident

Norbach v. Woodland Village Nursing Home Center, Inc., (SD MI, Sept. 4, 2012), is a Title VII religious accommodation lawsuit filed by a woman who was employed as an activity aide at a nursing home.  She was fired for insubordination after she refused to pray the rosary with a Catholic resident suffering from Alzheimer's disease. A Mississippi federal district court refused defendant's motion for summary judgment finding that a number of material questions of fact remain to be determined.  These include whether there were also other reasons for plaintiff's termination, whether praying the rosary conflicts with her religious beliefs and whether the nursing home could make a reasonable accommodation of her beliefs without experiencing an undue hardship. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

9th Circuit Hears Oral Arguments In Religious Workers' Visa Case

Last week (Aug. 27), the U.S. 9th Circuit Court of Appeals heard oral arguments in Ruiz-Diaz v. United States. In the case, a Washington federal district court rejected a challenge to immigration rules that treat religious workers applying to adjust their immigration status to become permanent residents differently from those in various other employment-based preference categories. (See prior posting.) An audio recording of the full arguments is available online, and Courthouse News has a summary of the oral arguments. Appellants argued  in part that delays in the adjustment of status may lead to a religious worker having to leave the country and a church being deprived of the right to practice its religion because it cannot find a replacement.

South Dakota High Court Dismisses Claims Based On Sex Abuse At Indian Reservation School

As reported by the Sioux City Journal, the South Dakota Supreme Court on Wednesday, in two opinions, dismissed several claims that had been filed by a number of former students of St. Paul's School on the Yankton Indian Reservation.  Plaintiffs claimed they had been sexually abused over 35 years ago while attending the boarding school that was operated by various Catholic religious orders and organizations.  In Bernie v. Blue Cloud Abbey, (SD Sup. Ct., Sept. 5, 2012), the court held that the extended statute of limitations for childhood sexual abuse in effect when the suit was filed does not extend the time for filing suit against the religious orders or the Diocese of Sioux Falls, as opposed to the claims against the perpetrators themselves. The extended limitation period only applies to suits alleging intentional conduct involving an act that would have constituted a felony. It does not apply to claims against "non-perpetrating defendants who are sued for negligence or on other theories of liability not involving intentional, criminal conduct."

In Bernie v. Catholic Diocese of Sioux Falls, (SD Sup. Ct., Sept. 5, 2012), the South Dakota Supreme Court rejected a respondeat superior claim against the Diocese of Sioux Falls because the alleged acts "were solely in the perpetrators’ own interests and were not in furtherance of the pursuit of any Diocesan business."  It also rejected negligence and breach of fiduciary duty claims against the Diocese because plaintiffs failed to show an agency relationship between the Diocese and the religious orders operating the school. Nor did the Diocese's relationship with the students create a fiduciary duty of protection.

Military Judge Orders Hasan To Shave Beard, Rejecting RFRA Claim

Yesterday at Fort Hood, Texas, a military judge in the court martial of accused mass killer Maj. Nidal Hasan has ordered Hasan to shave his beard or be forcibly shaved. The New York Times and a press release from Ft. Hood provide details on the decision. Hasan claims he has grown the beard for religious reasons.  The judge, Col. Gregory Gross, ruled that the Religious Freedom Restoration Act applies to court martial proceedings, but that the government has a compelling interest in requiring Hasan to shave because his wearing the beard would make it more difficult for witnesses to identify him.  The prosecution also introduced evidence that Hasan grew the beard in part to identify himself with the radical Islamic Mujahedeen. Col. Gross ruled that his order will not be carried out until Hasan has a chance to appeal the ruling.

Minnesota Board Exempts Catholic Organization Employee's Pro-Gay Marriage Contribution From Disclosure

Minnesota Statutes 10A.20 requires every political committee to file disclosure reports identifying anyone who has contributed over $100 to a candidate or to a campaign for a ballot issue, but allows an exemption where an individual "demonstrates by clear and convincing evidence that disclosure would expose the ... contributor to economic reprisals, loss of employment, or threat of physical coercion."  In an interesting decision last month in In re Application of John Doe, (MN Campg. Fin. & Pub. Discl. Bd., Aug. 7, 2012), the Minnesota Campaign Finance and Public Disclosure Board granted an exemption to an employee of a Catholic organization who had contributed $600 to an organization that opposes the Marriage Amendment that will appear on the November ballot. That proposed amendment provides that "only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota." The contributor argued that "because his job requires him to represent the Catholic organization’s policies to others from time to time, if his opposition to the marriage amendment was known, it would cause immense strain in his working relationships." The Board concluded that "Mr. Doe has established by clear and convincing evidence that the itemized report of his contribution to Minnesotans United for All families would expose him to the loss of his employment." Dale Carpenter at Volokh Conspiracy has more on the decision.

European Court Interprets When EU Country Must Grant Asylum For Religious Persecution

In Bundesrepublik Deutschland v Y and Z, (EU Ct. Justice, Sept. 5, 2012), the Court of Justice of the European Union interpreted the EU's directive on the status of refugees in the case of two Pakistani members of the Ahmadiyya community who are seeking asylum in Germany.  As summarized by the Court's press release::

The Bundesverwaltungsgericht (Federal Administrative Court,  Germany), before which the disputes have been brought, asks the Court of Justice to specify what restrictions on the practice of a religion may be considered as persecution justifying the grant of refugee status.

In today’s judgment, the Court finds, first, that only certain forms of severe interference with the right to freedom of religion, and not any interference with that right, may constitute an act of persecution requiring the competent authorities to grant refugee status....

... [A]cts which may constitute a severe violation include serious acts which interfere with a person’s freedom not only to practice his faith in private circles but also to live that faith publicly.... [A] violation of the right to freedom of religion may constitute persecution where, because of the exercise of that liberty in his country of origin, there is a genuine risk that the asylum applicant will ... be prosecuted or subject to inhumane or degrading punishment.... [W]here the participation in formal worship... may give rise to such a risk, the violation of the right to freedom of religion may be sufficiently serious.

...[T]he protection afforded on the basis of persecution on religious grounds extends both to forms of personal or communal conduct which the person concerned considers to be necessary to him ... and to those prescribed by religious doctrine....

Finally ... where it is established that, upon his return to  his country of origin, the person concerned will engage in a religious practice which will expose him to a real risk of persecution, he should be granted refugee status.... [I]n assessing an application for refugee status on an individual basis, the national authorities cannot reasonably expect the applicant to abstain from the manifestation or practice of certain religious acts.

Deutsche Welle reports on the decision.

Retaliation Claim Survives In Employee's Religious Discrimination Suit

In Chukwueze v. NYCERS (New York City Employees' Retirement System), (SD NY, Aug. 30, 2012), a New York federal district court allowed an evangelical Christian of West Indian descent, a former employee of NYCERS, to proceed with his claim that he was fired in retaliation for his complaints about religious discrimination by his supervisor, Michelle Gaddy. However the court dismissed other of his claims, including a hostile work environment claim.  At issue was Omar Chukwueze's ongoing disputes with Gaddy over his requests to use leave to take off for various religious holidays, and claims that Gaddy continually berated him in the presence of his entire unit for his requests. [Thanks to Steven H. Sholk for the lead.]

Official Says NYPD No Longer Surveilling New Jersey Muslim Groups

Yesterday, New Jersey state attorney general Jeffrey Chiesa told a group of Muslim leaders that the New York City Police Department's Demographics Unit that conducted surveillance of Muslim businesses, religious leaders and student groups is no longer operating in New Jersey. (See prior related posting.) According to an AP report carried by the Huffington Post, Chiesa however stood by his previously announced conclusion that the NYPD had not violated any New Jersey laws when it secretly spied on Muslim neighborhoods and organizations, infiltrated Muslim student groups and videotaped mosque-goers in New Jersey. Chiesa's remarks came at the first meeting of an outreach committee that has been formed to repair relations between New Jersey law enforcement officials and the Muslim community. An NYPD spokesman though said that the NYPD is "continuing and will continue to follow leads wherever they take us, including out-of-state."

Berlin Will Not Prosecute Religious Circumcision If Specified Conditions Are Met

Jurist reports that in Germany, state of Berlin Justice minister Thomas Heilmann announced in a press release yesterday (full text in German) that the state will not prosecute anyone performing a circumcision on a young boy so long as (1) the parents consent in writing after being informed of the risks, (2) the parents have a religious motivation for the procedure, and (3) the procedure is performed in accordance with acknowledged medical standards. The statement came in response to an inquiry by a Jewish hospital in Berlin after a court in Cologne ruled in June that parents do not have the right to authorize religious circumcision for their minor sons. (See prior posting.)

Democrats Amend Platform To Restore Language Specifically Mentioning God

As reported by ABC News, the Democratic National Convention at the beginning of its session today voted to amend its previously adopted Platform to restore the following language that had appeared in the 2008 Platform, but had been omitted from this year's document:

We need a government that stands up for the hopes, values and interests of working people, and gives everyone willing to work hard the chance to make the most of their God-given potential.

The Republicans had strongly criticized the omission of this sentence since it meant that the word "God" did not appear anywhere in the Democratic Platform, while the Republican Platform uses the word "God" 12 times. (See prior related posting.) The 2012 Democratic Platform did already have a section on Faith. (See prior posting.) The vote today also restored language from the 2008 Platform recognizing Jerusalem as the capital of Israel. Procedurally the amendment required a 2/3 vote, and Convention chairman Antonio Villaraigosa took the voice vote 3 times in a row before declaring the Platform amendments had passed.

European Court Hears 4 British Cases On Accommodating Christian Employees' Beliefs

Yesterday the European Court of Human Rights held a Chamber hearing on four cases from the United Kingdom raising issues of religious accommodation.  The cases are Chaplin v. the United Kingdom (application no. 59842/10), Eweida v. the United Kingdom (no. 48420/10), Ladele v. the United Kingdom (no. 51671/10) and McFarlane v. the United Kingdom (no. 36516/10). (Links are to prior postings on each case.) As reported by EurActiv, two of the cases involved Christians women who were not permitted by their employers to wear a cross around their neck. The other two cases involve Christian employees who object on religious grounds to same-sex marriage. One refused to provide counseling to same-sex couples. The other case involves a registrar who refused to officiate at same-sex civil union ceremonies. The European Court has issued a press release describing the cases, and has posted a webcast of the hearing.

California Passes Bill To Prevent Employment Discrimination Over Religious Hair Style or Dress

The California legislature last week passed and sent to the governor for his signature two related bills-- AB 1964 and AB 2386-- that together expand the definition of "religion" and related terms in the state's employment discrimination law to clarify the meaning of religious dress and grooming practices.  The amendment defines them broadly to include head or face coverings, jewelry, or artifacts, and all forms of head, facial, and body hair that are part of the individual's religious observance.  The amendments also provide that it is not a reasonable accommodation of an individual's religious dress or grooming practices to segregate the employee from other employees or the public.  (By their terms, both bill must be signed by the governor for either to become effective.)  IndiaWest reports that AB 1964 (the broader of the 2 bills) was supported by 18 civil rights organizations led by the Sikh Coalition. [Thanks to Don Byrd for the lead.]

Hindu Leader Ordered To Jail Pending Sentencing On Abuse of Visa Program

The Milwaukee Journal Sentinel reports that a Wisconsin federal district judge has ordered a convicted Hindu religious leader to jail pending his sentencing next month.  Last November, Sagarsen Haldar (also known as Gopal Hari Das) was convicted of conspiracy to defraud the government after it was shown that he had abused the religious worker visa program.  Haldar filed 25 applications with the State Department claiming that the people he was sponsoring would be working at his Hindu temple in Milwaukee. In fact, however, they were working as cab drivers or at convenience stores and turning their cash earnings over to Haldar who had charged them up to $30,000 to arrange their entry. After his conviction, Haldar had been allowed to remain free pending sentencing.  However he has now apparently violated conditions of his release by not reporting a contact with police in a shoplifting incident to his probation officer, and in filing false documents with the court in seeking a new trial. Last week Judge Rudolph Randa revoked Haldar's release, saying that there is a danger he may flee to his native India before his sentencing.

Democratic 2012 Platform: Provisions on Faith In America, Civil Rights, and Social Issues

As reported by Raw Story, the Democratic Party released it 2012 Platform (full text) on Monday night. It includes a number of provisions on the role of faith in America and on issues that have been of particular concern to religious groups.  The Platform section titled "Strengthening the American Community" includes the following:

Faith has always been a central part of the American story, and it has been a driving force of progress and justice throughout our history. We know that our nation, our communities, and our lives are made vastly stronger and richer by faith and the countless acts of justice and mercy it inspires. Faith- based organizations will always be critical allies in meeting the challenges that face our nation and our world – from domestic and global poverty, to climate change and human trafficking. People of faith and religious organizations do amazing work in communities across this country and the world, and we believe in lifting up and valuing that good work, and finding ways to support it where possible. We believe in constitutionally sound, evidence-based partnerships with faith-based and other non-profit organizations to serve those in need and advance our shared interests. There is no conflict between supporting faith-based institutions and respecting our Constitution, and a full commitment to both principles is essential for the continued flourishing of both faith and country.

The Platform supports "comprehensive immigration reform that supports our economic goals and reflects our values as both a nation of laws and a nation of immigrants;" "policies that truly value families," and "a woman’s right to make decisions regarding her pregnancy, including a safe and legal abortion, regardless of ability to pay." It also provides:

We support marriage equality and support the movement to secure equal treatment under law for same-sex couples. We also support the freedom of churches and religious entities to decide how to administer marriage as a religious sacrament without government interference.

The Platform Section on Civil Rights says in part:

At the core of the Democratic Party is the principle that no one should face discrimination on the basis of race, ethnicity, national origin, language, religion, gender, sexual orientation, gender identity, or disability status. Democrats support our civil rights statutes and we have stepped up enforcement of laws that prohibit discrimination in the workplace and other settings. We are committed to protecting all communities from violence. We are committed to ending racial, ethnic, and religious profiling and requiring federal, state, and local enforcement agencies to take steps to eliminate the practice....

 ...we must continue our work to prevent vicious bullying of young people and support LGBT youth... The Administration has said that the word 'family' in immigration includes LGBT relationships in order to protect bi-national families threatened with deportation.

 The Platform also contains sections on "Combating Human Trafficking" and on "Gay Rights As Human Rights."

Who Will Offer Prayers At the Democratic Convention?

As with the Republicans (see prior posting), so the Democrats have a diverse group offering invocations and benedictions at their convention (CNN), which begins today. Here is the lineup (updated from earlier posting):

Tuesday:

• Invocation-- His Eminence Metropolitan Nicholas (Bishop of the Greek Orthodox Diocese of Detroit).
• Benediction-- Jena Lee Nardella (Founder and Executive Director of Blood: Water Mission).

Wednesday:

• Invocation-- Vashti Murphy McKenzie (presiding bishop in the African Methodist Episcopal Church)
• Benediction-- Rabbi David Wolpe (Sinai Temple in Los Angeles).

Thursday:

• Invocation--  Rev. Gabriel Salguero (president of the National Latino Evangelical Coalition).
• Benediction-- Cardinal Timothy Dolan, (Archbishop of New York).

Also, Sister Simone Campbell, executive director of the Network lobby, and chief organizer of the "Nuns on the Bus" tour, will speak at the Convention on Wednesday.

In India, Former BJP Official and 30 Others Sentenced In 2002 Gujarat Hindu-Muslim Riots

Time reports that last Friday, in the Indian state of Gujarat a special court sentenced Maya Kodnani, the former state minister for women and child development, to 28 years in prison for her role in the 2002 Naroda Patiya massacre during which Hindus killed 96 Muslims as part of widespread Hindu-Muslim violence following the firebombing of a train carrying Hindu pilgrims. Thirty other defendants were sentenced to life in prison in connection with the massacre. (See prior related posting.) According to the Business Standard, the court found that Kodnani was one of the principal conspirators and that she played a role in instigating the Hindu mobs.  In its 1,969 page judgment, the court said: "This court firmly believes that had the instigation not been done by A-37 (Maya Kodnani), had the offence not been abetted by her, the communal riots would not have spread at Naroda Patiya on such large scale."  Kodnani has been an important member of the Bharatiya Janata Party (BJP) which is the ruling party in Gujarat and the main opposition party in India's central government.  However BJP leaders distanced the party from her after the verdict, pointing out that in 2002 when the riots took place she was a state legislator, not a cabinet minister. She was made a minister subsequently.

Ultra-Orthodox Rabbis Say They Will Not Comply With NYC Circumcision Informed Consent Rule If It Is Adopted

As previously reported, the New York City Health Department will vote on Sept. 13 on proposed rules to require written informed consent by parents to a controversial Jewish ritual circumcision method that health authorities say can spread herpes.  The procedure, known as metzitzah b’peh, involves use of the mohel's mouth-- rather than the more commonly used sterile pipette-- to suction blood from the circumcision site and is used only by certain Orthodox Jewish sects. On Sunday, both the New York Post and Vos Iz Neias? blog report that some 200 ultra-Orthodox rabbis have signed onto a Proclamation (full text in Yiddish) saying that the Health Department "printed and spread lies. . . in order to justify their evil decree." Rabbi David Niederman, executive director of the United Jewish Organization of Williamsburg, said that mohels will not comply with the regulation if it is approved.  He said: "For the government to force a rabbi who’s practicing a religious act to tell his congregants it’s dangerous is totally unacceptable. You’re forcing the mohel and the parent to sign a piece of paper that contradicts their religious convictions."

Warrant To Search Everyone For Drugs At Church-Sponsored Concert Is Invalid

Church of Universal Love and Music v. Fayette County, (WD PA, Aug. 31, 2012), is a suit for damages claiming violations of the 1st and 4th Amendment in the execution of a warrant allowing the search of "all persons present" at a concert on the property of the Church of Universal Love and Music. (See prior related posting.)  Finding that the warrant was invalid, the court said that even though there was widespread drug use on the property, "the affidavit tendered to the issuing judge did not set forth reasonable grounds to believe that all persons on the premises at the time were engaged in criminal activity, or that the premises were dedicated to criminal activity." However, the court said this does not establish liability because of various defenses asserted. The court found that insofar as personal capacity claims are being asserted, two of the officers have qualified immunity. However the prosecutor does not have absolute prosecutorial immunity for his activities as lead coordinator of the county drug task force. The court also refused to dismiss plaintiffs' Monell claim against the county that alleged a policy of harassing the church. Defendants did not seek dismissal of Plaintiffs' claims of retaliation based on First Amendment free exercise, free speech, and free association.

Cleric Arrested For Falsifying Evidence In Pakistan Blasphemy Case

In Pakistan, the blasphemy case against Rimsha Masih, the developmentally disabled Christian girl who was arrested for burning sacred documents (see prior posting), has taken an unexpected turn.  According to the New York Times yesterday, a 30-year old Muslim cleric who is at the forefront of those calling for the girl's prosecution was arrested Saturday on charges of falsifying evidence against her. A muezzin in the mosque led by Mohammad Khalid Chisti went before a magistrate and charged that Chisti added two pages from the Qur'an to burned papers that were taken from the girl-- who had only burned pages of the Noorani Qaida, a holy text used to teach children the Qur'an. The muezzin told police: "I tried to stop him, but he said that this would strengthen our case."

Naturist's Free Exercise Rights Not Violated By Fencing of Nude Beach

In Wittbold v. Miami-Dade County, (SD FL, Aug. 31, 2012), a Florida federal district court dismissed without prejudice plaintiff's claim that defendants violated his free exercise rights by limiting nude sunbathing to an area of a Florida beach they fenced in. Thomas Wittbold alleges religious discrimination because he cannot practice his religion of Naturism outside the fenced area, and claims that forcing him to worship in an artificially created restrictive area amounts to false imprisonment. The court concluded, however that "Plaintiff can exercise his religion within the nude beach.  Plaintiff does not allege how the fence or signs prevent him from exercising his religion." The court also dismissed without prejudice plaintiff's claim that he was discriminated against in violation of state law because he failed to allege that he had filed a complaint with the state's Commission on Human Relations.

Alabama High Court Dismisses Pastor's Defamation Claim On 1st Amendment Grounds

In In re Higgs v. Bole, (AL Sup. Ct., Aug. 31, 2012), the Alabama Supreme Court dismissed a defamation, invasion of privacy and intentional infliction of emotional distress lawsuit brought by Lawton Higgs, Sr., a United Methodist pastor, against a lay member of the Church of the Reconciler (COR).  Tom Bole, a lay member of COR, wrote to Rev. Ron Schultz, a district supervisor of the North Alabama Conference of the United Methodist Church, charging COR pastor emeritus Lawton Higgs, Sr., and his son Kevin Higgs who served as COR's senior minister, with accounting irregularities, as well as expressing concern about the pastors' liberal political rhetoric. The Conference began an investigation, but on May 26, 2011, informed various COR members that the complaint was dismissed and that the Higgs' would be transferred out of any role in the congregation.  At that point, Bole sent a e-mail to numerous members of the congregation charging the Higgs' with wrongful conduct. Lawton Higgs, Sr. sued. Finding that his claims were intertwined with the underlying investigation by the Conference, the court concluded:

Any attempt to adjudicate Higg's claim would require an impermissible inquiry into the Conference's investigation of the complaints against Higgs and Kevin, into the results of the investigation conducted by the Conference, into the factual findings that formed the basis for the resolution and into the Conference's decision to remove Higgs and Kevin from COR.... Additionally, allowing the claims regarding Bole's May 31, 2011 conversation ... and ...  e-mails ...  to proceed could have a chilling effect on communication among members of a congregation regarding church leadership.... For these reasons, the trial court did not have subject-matter jurisdiction over Higg's claims against Bole by virtue of the First and Fourteenth Amendments to the United States Constitution.

Recent Articles and Book of Interest

From SSRN:

• Cornelia Koch, The Sky is Falling If Judges Decide Religious Controversies! - Or is it? The German Experience of Religious Freedom under a Bill of Rights, (P. Babie and N. Rochow (eds), Freedom of Religion under the Bill of Rights', University of Adelaide Press, Adelaide 190-215, 2012).
• Paul T. Babie and Neville Grant Rochow, SC, Protecting Religious Freedom under Bills of Rights: Australia as Microcosm, (P. Babie and N. Rochow (eds), Freedom of Religion under the Bill of Rights', University of Adelaide Press, Adelaide 190-215, 2012).
• Ngaire Naffine, How Religion Constrains Law and the Idea of Choice, (P. Babie and N. Rochow (eds), Freedom of Religion under the Bill of Rights', University of Adelaide Press, Adelaide 190-215, 2012).
• Jonathan C. Augustine, Environmental Justice and Eschatology in Revelation, (Loyola Law Review, New Orleans, Vol. 58, No. 2, 2012, Forthcoming).
• Bruce MacDougall, Elsje Bonthuys, Kenneth Norrie, and Marjolein Van den Brink, Conscientious Objection to Creating Same-Sex Unions: An International Analysis, (Canadian Journal of Human Rights, Vol. 1, No. 1, pp. 127-164, 2012).
• Patrick McKinley Brennan, The Mighty Work of Making Nations Happy: A Response to James Davison Hunter, (Pepperdine Law Review, Forthcoming).
• Carl H. Esbeck, Defining Religion Down: Hosanna-Tabor, Martinez, and the U.S. Supreme Court, (First Amendment Law Review, Forthcoming).
• Terri Day and Leticia M Diaz, The Affordable Care Act and Religious Freedom: The Next Battleground, Georgetown Journal of Law & Public Policy, Vol. 11, No. 1, 2012.
• Rachel Gillum and David C. Wilson, American Muslims or Muslim Americans?: Impact of Perceived Discrimination on Confidence in Security Institutions, (August 27, 2012).
• Bradley T. Borden and Katherine E. David, Sales of Church Real Property to Parishioners, (24 Tax’N Exempts 3, July/Aug. 2012).

From SmartCILP:

• Jack B. Harrison, The Strange Intersection Between Law, Religion, and Government in the Regulation of Marriage, 6 Charleston Law Review 547-568 (2012).
• Kim Benita Vera, From Papal Bull to Racial Rule: Indians of the Americas, Race, and the Foundations of International Law, [Abstract], 42 California Western International Law Journal 453-472 (2012).

Recent Book:

• Shimon Gershon Rosenberg, Zot Briti (This Is My Covenant: Conversion, Secularization, Civil Marriage ), edited by Amnon S. Dukov, Zohar Maor, Moshe S. Faloch, The Institute for the Advancement of Rabbi Shagar's Writings, 258 pages (in Hebrew ). Reviewed in Haaretz.

Reverend Sun Myung Moon Dies

Rev. Sun Myung Moon, controversial founder of the Unification Church, died Monday local time in a hospital near Seoul, South Korea. AP reports that the 92-year old religious leader died of pneumonia.  The Unification Church claims to have 3 million members worldwide, but critics dispute that figure.  It also has acquired extensive business interests, including the Washington Times (which has an extensive article on Rev. Moon's life) and Connecticut's University of Bridgeport.

Court Balances Privacy Concerns In Establishment Clause Discovery Order

A Kentucky federal district court has resolved a discovery issue in the long-running case claiming that Kentucky's funding of the Sunrise Children’s Services (formerly Kentucky Baptist Homes for Children) violates the Establishment Clause. (See prior posting.) In Pedreira v. Sunrise Children's Services, (WD KY, Aug. 30, 2012), a Kentucky federal district court, balancing the privacy concerns of former residents with plaintiffs' need for information, held that KBHC will be required to disclose in discovery the names of former residents who complained of religious proselytization, but not those who complained merely of religious intolerance. It will also be required to disclose names of former employees.

Recent Prisoner Free Exercise Cases

In Murphy v. Lockhart, 2012 U.S. Dist. LEXIS 120548 (ED MI, Aug. 24, 2012), a Michigan federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 156028, Oct. 18, 2011) and dismissed an inmate's 1st and 14th Amendment and RLUIPA objections to the prison's refusal to allow him to receive a book he ordered from the Power of Prophecy Ministries entitled Codex Magica: Secret Signs, Mysterious Symbols, and Hidden Codes of the Illuminati, because it contains information on how to write letters in code.

In Howard v. Skolnik, 2012 U.S. Dist. LEXIS 120342 (D NV, Aug. 23, 2012), a Nevada federal district court dismissed an inmate's objections that prison authorities held only one Muslim service each week. He wanted a separate Nation of Islam service entirely in English. The court awarded plaintiff damages of $120 for 12 lost legal and religious cassette tapes.

In Washington v. Brown, 2012 U.S. Dist. LEXIS 120950 (ED CA, Aug. 23, 2012), a California federal magistrate judge recommended dismissing RLUIPA damage claims by a Muslim inmate who contended that he was not placed on the Ramadan fast list and was not permitted to make up the fast days he missed. The court concluded that: "The plain language of RLUIPA appears to contemplate the creation of a damages remedy against state actors in their individual capacities.... [H]owever, Congress' Spending Clause power does not provide it with authority to enact a private right of action with a monetary damages remedy against individual defendants who are not recipients of federal funds."

In Gulino v. Crossdale, 2012 U.S. Dist. LEXIS 120235 (D CT, Aug. 22, 2012), a Connecticut federal district court dismissed an inmate complaint that a religious object he wore around his neck was confiscated and lost.

In Merrell v. Allred, 2012 U.S. Dist. LEXIS 120311 (D CO, Aug. 24, 2012), a Colorado federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 120312, July 17, 2012) and permitted an inmate to proceed with this claim under RLUIPA that he is being required to undergo an annual TB test despite his protest that the injections violate his religious beliefs.

In Wilson v. Kelly, 2012 U.S. Dist. LEXIS 121293 (ND NY, Aug. 27, 2012), a New York federal district court in an unusual move rejected a part of a magistrate's recommendations (2012 U.S. Dist. LEXIS 121450, June 22, 2012) and permitted an inmate to proceed with his claim that one of the defendants retaliated against him for filing a grievance by having his name removed from the kitchen Ramadan list. However the court dismissed his complaint that he missed 7 religious services while in keep lock confinement.

In Grissom v. Werholtz, 2012 U.S. Dist. LEXIS 121694 (D KS, Aug. 28, 2012), a Kansas federal district court dismissed an inmate's complaint that the chaplain required him to sign a change of religion form in order for him to keep a Celtic cross and chain that he possessed. The cross was not a crucifix and so was not authorized for Catholic prisoners.

In McChesney v. Hogan, 2012 U.S. Dist. LEXIS 120509 (ND NY, Aug. 23, 2012), a New York federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 122503, July 30, 2012) and dismissed a claim by a civilly committed atheist that forcing him to participate in various specific sex offender treatment programs violates his free exercise rights and the Establishment Clause.

In Whitfield v. Tulp, 2012 U.S. Dist. LEXIS 123144 (ED CA, Aug. 28, 2012), a California federal magistrate judge dismissed a former inmate's various constitutional and statutory claims growing out of correctional officers' refusal to allow him to send his excess personal and legal property to a friend.  His property, including religious materials and a Bible, was confiscated and destroyed. The court concluded: "there is no support for a claim that Defendants acted to prevent Plaintiff from engaging in the practice of his religion."

In Thomas v. Connolly, 2012 U.S. Dist. LEXIS 123951 (SD NY, Aug. 30, 2012), a New York federal district court adopted a magistrate's recommendations and dismissed a Muslim inmate's complaint that his free exercise rights were infringed when he was not permitted to distribute food as an act of charity for his Zakat-ul-Fitr obligation, and when confusion in scheduling caused him to be unable to participate in observance of the first and last days of the Ten Days of Muharram Festival.

In Knight v. Mulvaney, 2012 U.S. Dist. LEXIS 123325 (WD MI, Aug. 30, 2012), a Michigan federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 123622, July 30, 2012) and dismissed a claim by a Nation of Islam inmate who claimed his free exercise, 14th Amendment and RLUIPA rights were violated when he was placed in temporary segregation and was designated a security threat group leader for proselytizing other prisoners and possessing religious literature.

Denial of Unemployment Benefits To Seventh Day Adventist Held Unconstitutional

In Nyaboga v. Evangelical Lutheran Good Samaritan Society, (MN App., Aug. 27, 2012), a Minnesota appellate court held that it is a violation of the Free Exercise Clause to deny unemployment compensation benefits to a nurse who was terminated from her position because of her absence for religious reasons.  Risper Nyaboga, a Seventh Day Adventist, previously worked Saturday shifts but became more observant after she was rebaptised. A record of tardiness and absence led to her firing.  None of the tardinesses and only a handful of the absences were for religious reasons. Most related to childcare issues.  She was warned that 2 more tardinesses or one more absence would lead to her firing. She was then terminated when she was absent on a Saturday on which she could not find another nurse to cover her shift. Thus, according to the court: "Although Nyaboga had a history of tardiness, the conduct that triggered her discharge was an absence for religious reasons."

Upscale Religiously-Affiliated Retirement Community Does Not Get Tax Exemption

In Franciscan Communities, Inc. v . Hamer, (IL App., Aug. 28, 2012), an Illinois appellate court agreed with the state Department of Revenue that a continuing care retirement community (known as Village at Victory Lake (VL)) operated by the Franciscan Sisters does not (except for the chapel) qualify for a property tax exemption under provisions exempting property used exclusively for religious or charitable purposes. The court said in part:

It is FC’s position that civil authorities must accept not only a religious organization’s characterization of its beliefs but also the entity’s characterization of its use of the subject property. Under this theory, no property taxes could ever be imposed on any property a religious organization declared was used exclusively for religious purposes, regardless of the true facts. This is contrary to established law.....

... [T]he primary use of VL was for upscale senior housing and care with an enhanced lifestyle.  To be sure, there was a religious component, but ... advancing religion was not VL’s primary purpose....  Here, we are not called upon to decide whether the Sisters engage in religious activities.  It is a given that they do, but the evidence overwhelmingly showed that the operation of VL was businesslike and characteristic of a commercial enterprise. VL was not giving care to the  elderly; it was selling care to the  elderly, as well as a certain lifestyle for those in independent living, at competitive market rates.

Religious Wedding Without License Is Not Remarriage That Terminates Spousal Support Order

California Family Code Section 4337 provides that the obligation under a court order to support a former spouse terminates when the former spouse remarries. In Left v. Left, (CA App., Aug. 23, 2012), a California appeals court held however that when a divorced wife goes through a Jewish religious marriage, performed without also having a marriage license from the state, her former husband’s support obligation is not terminated.  The issue arose in the dissolved marriage of Andrea and Andrew Left.  In June 2008, the trial court entered an order of dissolution as well as temporary child and spousal support. A number of other contested issues though remained for decision by the court.  In December 2008, Andrea became engaged to Dr. Todd Katzman and planned an elaborate wedding for May 2009.  Invitations were sent out and plans made.  As the wedding date approached, it became clear that Andrea and Andrew would not be able to resolve the remaining contested issues in the divorce before May. So Andrea and Todd went ahead with the celebration, signing a ketubah (Jewish marriage contract), and proceeding with a ceremony presided over by a rabbi, who was told only 30 minutes before the ceremony that there had been a problem getting the marriage license. The rabbi did not inform the guests at the ceremony of this. In holding that this ceremony did not terminate the prior support order, the court said:

it is reasonable to conclude that the Legislature never intended that the term “remarriage,” within the meaning of section 4337, would encompass a commitment ceremony where the couple intentionally did not meet the legal requirements of marriage.

National Law Journal reports on the decision.

Romney's Work As Lay Mormon Pastor Detailed To Convention

Reuters reports on the three speakers last night at the Republican National Convention who focused in detail on nominee Mitt Romney's activities as a lay Mormon pastor in a Boston area Mormon church in the late 1970's.  Grant Bennett (full text of remarks), who served as Romney's assistant in the church and later himself became pastor, described Romney's work:

For one or two evenings each week and several hours every weekend -- week after week and year after year -- he met with those seeking help with the burdens of real life, burdens we all face at one time or another: unemployment, sickness, financial distress, loneliness.

Mitt prayed with and counseled church members seeking spiritual direction, single mothers raising children, couples with marital problems, youth with addictions, immigrants separated from their families, and individuals whose heat had been shut off.

Then Ted and Pat Oparowski (full text of remarks) described Romney's visits with their terminally ill 14-year old son, and Pam Finlayson (full text of remarks) told of Romney's clergy visits to the hospital and other help and support from the Romney family after her daughter was born three and a half months premature.

Indian State's Requirement of Notifying State of Intended Conversion Ruled Unconstitutional

In Evangelical Fellowship of India v. State of Himachal Pradesh, (HC Himachal Pradesh, Aug. 30, 2012), a 2-judge panel the High Court of the Indian state of Himachal Pradesh struck down as unconstitutional provisions in Himachal Pradesh's Freedom of Religion Act 2006 and the implementing rules that require a person intending to convert from one religion to another to give 30 days prior notice to the District Magistrate, except where the person is reverting to his original religion. The court said in part:

[E]ach and every citizen of this country has a right not only to follow his own beliefs but also has a right to change his beliefs....

A person's belief or religion is something very personal to him.  The State has no  right  to ask  a person  to disclose what is his personal belief....   Any conversion, which take place by “force”, “fraud” or “inducement”, must be dealt with strictly in accordance with law which we have held to be valid.  At the same time, the right to privacy and the right to change the belief of a citizen cannot be taken away under the specious plea that public order may be affected.

Times of India reports on the decision.

Jehovah's Witness Teachers Sue Over Refusal To Rehire

Naples (FL) News reports on a suit filed last week in a Florida federal district court by two teachers who claim that a Fort Myers elementary school  refused to rehire them after the principal found that they are members of the Jehovah's Witnesses.  Kristine and Gerardo Rosales contend that Principal Holly Bell, with whom they previously had a close relationship, refused to "engage in any meaningful communication or interaction" with them, especially after they refused to attend the school's Christmas event.  Jehovah's Witnesses religion does not permit celebration of Christmas. The lawsuit alleges that the principal denied Kristine Rosales' tenure by failing to follow the evaluation provisions of the collective bargaining agreement, and that she claimed a non-existent reduction in forces as a reason for not rehiring Geraldo Rosales.

Plaintiffs Have Standing To Challenge Tax Exemption For Parsonage Allowance

In Freedom From Religion Foundation, Inc. v. United States, (WD WI, Aug. 29. 2012), a Wisconsin federal district court held that officers of the Freedom From Religion Foundation have standing to bring Establishment Clause and equal protection challenges to the constitutionality of Internal Revenue Code Sec. 107 that excludes from taxable income the parsonage allowance or the rental value of a home provided to members of the clergy. The court found that plaintiffs have alleged "injury in fact" because they contend that they receive a housing allowance from their employer and do not receive the same exemption from taxation for the amounts they are given. The court said in part:

plaintiffs' allegation of discriminatory treatment is distinct from a simple disagreement with the government's conduct.... I disagree with defendant that plaintiffs lack standing because they have a "generalized grievance." The Supreme Court has rejected the view that a plaintiff does not suffer an injury in fact simply because it is "widely shared.".... 

More important, defendant cites no statute that prohibits plaintiffs from bringing this action. As defendant acknowledges, the Anti-Injunction Act, 26 U.S.C. § 7421, bars suits that seek to  enjoin the government from assessing or collecting a tax, not from eliminating an exemption, so it does not apply to this case. 

(See prior related posting.) [Thanks to Bob Ritter for the lead.]

8th Circuit: Excluding Good News Club Was Unconstitutional Viewpoint Discrimination

In Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District No. 1, (8th Cir., Aug. 29, 2012), the U.S. 8th Circuit Court of Appeals held that the district court abused its discretion in denying a preliminary injunction sought by plaintiff to keep its Good News Clubs as part of Minneapolis Jenny Lind Elementary School's after school program. The court said:

We agree with CEF's assertion that  the district has engaged in viewpoint discrimination by ousting CEF from the after-school program.... [T]he primary difference between CEF and other groups participating in the after-school program, all of which provide the enrichment programming ... is that "prayer and proselytizing" take place during CEF's meetings....

The district court also found that the district had a compelling interest in excluding CEF from the after-school program resources in order to avoid an Establishment Clause violation.... The compelling interest in avoiding an Establishment Clause violation, according to the district, justifies any possible viewpoint discrimination. We disagree....

... [W]hether the content of CEF's GNC meetings was private speech or school-sponsored speech is the key to analyzing the district's Establishment Clause defense to its practice of viewpoint discrimination. We find erroneous the district court's conclusion that the GNC's message was school or district sponsored when it was part of the after-school program.

Murfreesboro Mosque Neighbors Permitted To Intervene In Justice Department's RLUIPA Suit

In United States v. Rutherford County, Tennessee, (MD TN, Aug. 29, 2012), a Tennessee federal district court permitted neighbors of the Islamic Center of Murfreesboro to intervene in a RLUIPA lawsuit brought by the Justice Department.  In earlier proceedings in the case, the United State obtained a temporary restraining order requiring county officials to expedite the issuance of an occupancy permit for the controversial mosque in Murfreesboro.  (See prior posting). At issue is a decision by a state court that the county violated the state's Open Meetings Act when it publicized the Planning Commission meeting only in the Murfreesboro Post. The court held that intervenors will be limited to presenting their position on whether the Chancery Court Orders constitute a land use regulation under RLUIPA and, if so, whether they impose a substantial burden on the Islamic Center's free exercise of religion. Intervenors will not be able to raise issues relating to their allegation of connections between two mosque board members and Hamas. The Tennessean reports on the decision.

VP Nominee Ryan Impacted By His Catholic Beliefs

Paul Ryan last night accepted the Republican nomination for vice-president. (Washington Post.) Earlier this month, the Wall Street Journal reported on the impact of Ryan's Catholic religious faith on his political and policy views:

... Ryan is a practicing Catholic who attends church regularly, takes part in a weekly prayer group on Capitol Hill and flies home on Thursday nights so he can take his children to their Catholic school the next morning. And when he debates Vice President Joe Biden this fall, each party will be represented by a practicing Catholic.

But Catholicism also grounds his thinking about politics and the basic relationship between the individual and the state. He has invoked a principle called "subsidiarity" in justifying his view that people are more apt to flourish under government that is limited in its size and reach. And he spoke out amid the church leadership's fight with the Obama administration over its mandate that employers, including Catholic institutions, be required to provide contraception coverage in their insurance plans.

Mr. Ryan's use of Catholic teachings has drawn criticism by others in the church who believe he is selectively interpreting religious doctrine to make a case for market capitalism.

Plaintiffs Denied Preliminary Injunction, But May Develop As-Applied Challenge To Legislative Prayer

In Jones v. Hamilton County, Tennessee, (ED TN, Aug. 29, 2012), a Tennessee federal district court refused to issue a preliminary injunction in a facial challenge to the policy of Hamilton County of opening its Commission meetings with a prayer. However the court permitted plaintiffs to proceed to develop a record as to whether the policy as applied violates the Establishment Clause. Plaintiffs objected to Christian prayers offered by various speakers under the county's prior informal prayer policy. Shortly after this lawsuit was filed, the county adopted a formal invocation policy providing for prayers to be offered by clergy from any of the religious congregations in the county.  WRCB-TV reports on the decision.

New Mexico Clarifies Vaccination Exemption Covers Only Religious, Not Philosophical, Objections

New Mexico Statutes 24-5-3 provides an exemption for school children from immunization requirements if the child's parents file an affidavit that the child's "religious beliefs, held either individually or jointly with others, do not permit the administration of vaccine or other immunizing agent."  According to Tuesday's Santa Fe New Mexican, the New Mexico Department of Health has changed the form that parents must file to make clear that philosophical, rather than religious, beliefs are not a basis for exemption.  The new form specifically requires parents to state their religious belief.  Officials have become concerned over rising exemption rates and an increase in vaccine-preventable disease.