Religion Clause

Monday, October 15, 2012

Sunday, October 14, 2012

Recent Prisoner Free Exercise Cases

In Davis v. Powell, 2012 U.S. Dist. LEXIS 144067 (SD CA, Oct. 4, 2012), a California federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 144072, July 25, 2012), and permitted a Muslim inmate to proceed with his free exercise and RLUIPA claims growing out of a temporary total ban on Islamic prayer oil, and his equal protection claim against one defendant for instituting a policy restricting religious items to quarterly packages.

In Santos v. Caudle, 2012 U.S. Dist. LEXIS 144628 (MD PA, Oct. 5, 2012), a Pennsylvania federal district court dismissed for failure to exhaust administrative remedies an inmate's claim that his kosher diet was wrongly suspended for 90 days.

In Washington v. Brown, 2012 U.S. Dist. LEXIS 145550 (ED CA, Oct. 5, 2012), a California federal district court, in an inmate's suit for monetary damages under RLUIPA, held that "based on ... the lack of any allegations ... suggesting that the denial of his religious diet would lead in the aggregate to a substantial effect on interstate commerce, the court concludes that plaintiff's claims do not come within the Commerce Clause underpinnings of RLUIPA." The magistrate's recommendations in the case are at 2012 U.S. Dist. LEXIS 120950, Aug. 24, 2012).

In Rowe v. Lemon, (IN App., Oct. 9, 2012), and Indiana appellate court held that the state had not shown as a matter of law that an inmate who adhered to Identity Christianity lacked sincere religious reasons for requesting a kosher diet, though the court described his claim as "arguably ... eyebrow-raising." It denied summary judgment to either side, concluding that issues of fact remain.

In Elfand v. County of Sonoma, 2012 U.S. Dist. LEXIS 146179 (ND CA, Oct. 9, 2012), a California federal district court dismissed on qualified immunity grounds a Jewish inmate's complaints over delays in responding to his requests for religious accommodation, including his request for kosher meals.

In Miles v. Moore, 2012 U.S. Dist. LEXIS 147451 (ED VA, Oct. 10, 2012), a Virginia federal district court dismissed plaintiff's complaint that (before recent amendments to prison rules) inmates were only allowed to sign up for religious programs during an open enrollment period once a quarter, which he missed because he was in isolation. The court held his request for injunctive relief is moot and damages are not recoverable under RLUIPA.

In Pittman-Bey v. Clay, 2012 U.S. Dist. LEXIS 146994 (SD TX, Sept. 19, 2012), a Texas federal magistrate judge recommended permitting an Hanafi Muslim inmate to move ahead with his 1st Amendment damage claim (other than for emotional damges) for denying him Ramadan meals. Under now-amended rules, Ramadan meals were not allowed to inmates who did not also attend Jumah services. Hanafi teachings barred plaintiff from attending Jumah services while in prison.

In Payne v. Lucas, 2012 U.S. Dist. LEXIS 146982 (D SC, Oct. 12, 2012), a South Carolina federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 147364, July 19, 2012) and dismissed a pre-trial detainee's request for a vegan diet and for a specific Catholic priest to be added to his visitor list.

2nd Circuit Upholds Denial of Vaccination Exemption

In Caviezel v. Great Neck Public Schools, (2d Cir., Oct. 12, 2012), the 2nd Circuit Court of Appeals affirmed the district court and rejected parents' constitutional challenges to New York's denial to them of a religious exemption from the requirement their children be vaccinated in order to attend public schools. The 2nd Circuit found no clear error in the trial court's conclusion that plaintiffs had failed to show a genuine and sincere religious belief which would prohibit vaccinations.

Georgian Orthodox Church's Role In Parliamentary Elections Seen As Important

In an article posted yesterday, the New York Times reported on the role of the Georgian Orthodox Church in last week's Parliamentary elections in the nation of Georgia. The election replaced President Mikheil Saakashvili's government with one formed by Bidzina Ivanishvili. The Church has had a number of disagreements with the Saakashvili government, especially over legislation granting other religions equal status with the Orthodox Church in Georgia. Saakashvili was associated by Church conservatives with lax Western values. Patriarch Ilia II insisted that the Church maintain neutrality in the election, but that signaled it was not endorsing the government. One scholar described it as "a very active and anti-governmental neutrality." As the election approached, Patriarch Ilia arranged for an airplane carrying icons and holy relics to circle over the country while priests prayed for its future.

1st Amendment Challenge To FBI-CIA Infiltration of Mosques Dismissed

In Zeiny v. United States, (ND CA, Oct. 10, 2012), a California federal district court dismissed a claim by a Muslim man, originally born in Egypt, that the CIA and FBI has violated his 1st Amendment rights by infiltrating Islamic centers. He alleged that members of the Muslim community are deprived of the right to attend religious services without fear of law enforcement agents spying on them, and that his free speech in Islamic Centers is obstructed for fear of CIA action against him.

Italian Court Invalidates Attempt To Tax Church-Owned Property

In Italy last Monday, the Council of State invalidated a decree issued last February that would have subjected to taxation much of the now tax exempt property held by the Catholic Church. The decree was an attempt to conform Italian law to European Union requirements. EU antitrust officials are investigating whether current exemptions amount to illegal government subsides of commercial activities.(See prior related posting.) According to The Right Perspective, the Council on Monday held that the decree is "too heterogeneous" and goes “beyond the competences" of a tax law. The Church owns 20% of the property in Italy. Purely commercial property it owns is already subject to tax. The new law would have expanded taxation to include property that generates profits, but which is now tax free because some percentage of the activities on it are religious, such as a shopping center that includes a chapel. According to ANSA, Italy's Economy Minister says that despite the court decision, the government is still determined to extend the property tax to Church property.

Saturday, October 13, 2012

Despite Days In Jail For Contempt, Two Men Insist On Using Church Name Found To Be A Trademark Infringement

Yesterday's Jackson, Tennessee Sun carries an interesting interview with Walter McGill and Luke Chartier, members of a small Guys, Tennessee church who have recently been released after serving 30 days and 10 days respectively in jail for civil contempt growing out of a trademark infringement case they lost to the Seventh Day Adventist Church. (See prior posting.) The contempt sanctions were approved by a federal district court in General Conference Corporation of Seventh Day Adventists v. McGill, (WD TN, April 5, 2012). The two men insist on calling their small church "The Creation 7th Day & Adventist Church." In the published interview, they say, in part:

We were told by God to use the name “Creation 7th Day Adventist” or “Creation Seventh Day Adventist” (spelled either way). We made an effort to show good faith in compromising in our advertising. We changed to “The Creation 7th Day & Adventist Church” (for the world church) or, at Guys, “A Creation 7th Day & Adventist Church” for the single congregation. Neither the plaintiffs nor the court recognized our “good-faith compromise” to be adequate. The fact is this: We refuse to give up our “God-given name,” which is “Creation Seventh Day Adventist.” Until God tells us differently, we must adhere to his mandate.

Justice Department Announces Non-Prosecution Policy For Certain Tribal Eagle and Protected Bird Ceremonial Use

Yesterday the U.S. Department of Justice announced that it has issued a Memorandum (full text) to its enforcement personnel formalizing a uniform policy that assures members of federally recognized Indian tribes that they will not be prosecuted under the Bald and Golden Eagle Protection Act or the Migratory Bird Treaty Act for certain specified limited use of eagle and other protected bird feathers and parts in cultural and religious activities. Under the policy, tribal members (without obtaining a Fish and Wildlife Service permit) may possess, use, wear and travel with bird feathers or parts; acquire from the wild, without compensation, naturally molted or fallen feathers; give or exchange feathers and bird parts with other members of federally recognized tribes for their use, including to craftsmen (who may be paid for their work) for fashioning into objects for use in tribal religious or cultural activities. The Justice Department. however, will continue to prosecute both tribal members and non-members for illegal killing of eagles and other migratory birds, and for buying or selling of the feathers or other parts of protected birds. (See prior related posting.) CNN reported on the Justice Department's policy announcement.

Suit Challenges City's Ban On Traditional Nativity Diorama In Park

Earlier this week, a suit was filed in a California federal district court challenging the 2010 decision of the city of Santa Monica to adopt regulations that bar a group comprised of 13 churches and a police organization from continuing the 60-year tradition of erecting a series Christmas story dioramas in Palisades Park during the holiday season. In recent years, the display consisted of a sequential 14-scene story of Christmas. Each display was in an 18-foot long booth and included life-size mannequins and props. The city took the action after controversy in recent years when secular groups won substantial space in a neutral lottery for space and put up secular and anti-religious signs. The complaint (full text) in Santa Monica Nativity Scenes Committee v. City of Santa Monica, (CD CA, filed 10/9/2012) contends:

By amending the ordinance ... Defendant City succumbed to a "heckler's veto" and has thereby given preference to a messages hostile to religion, particularly Christianity.

It claims the city has imposed a content-based restriction on speech, has violated the Establishment Clause by adopting a policy that reflects hostility to Christianity and our nation's religious heritage, and has violated the equal protection clause by denying use of a public forum to those whose messages it finds unacceptable.

CBS News reports on the lawsuit.

Friday, October 12, 2012

Vice-Presidential Debate Explores Candidates' Religious Views

In last night's vice-presidential debate (full transcript), one question by moderator Martha Raddatz went directly to the candidates' religious views. Here is a slightly edited version of the exchange:

RADDATZ: ... We have two Catholic candidates, first time, on a stage such as this. And I would like to ask you both to tell me what role your religion has played in your own personal views on abortion.....

RYAN: I don't see how a person can separate their public life from their private life or from their faith. Our faith informs us in everything we do. My faith informs me about how to take care of the vulnerable, of how to make sure that people have a chance in life.... Now, you want to ask basically why I'm pro-life? It's not simply because of my Catholic faith. That's a factor, of course. But it's also because of reason and science.

You know, I think about 10 1/2 years ago, my wife Janna and I went to Mercy Hospital in Janesville where I was born, for our seven week ultrasound for our firstborn child, and we saw that heartbeat. A little baby was in the shape of a bean. And to this day, we have nicknamed our firstborn child Liza, "Bean." Now I believe that life begins at conception.

... Now I understand this is a difficult issue, and I respect people who don't agree with me on this, but the policy of a Romney administration will be to oppose abortions with the exceptions for rape, incest and life of the mother. What troubles me more is how this administration has handled all of these issues. Look at what they're doing through Obamacare with respect to assaulting the religious liberties of this country. They're infringing upon our first freedom, the freedom of religion, by infringing on Catholic charities, Catholic churches, Catholic hospitals.

Our church should not have to sue our federal government to maintain their religious liberties. And with respect to abortion, the Democratic Party used to say they wanted it to be safe, legal and rare. Now they support it without restriction and with taxpayer funding. Taxpayer funding in Obamacare, taxpayer funding with foreign aid. The vice president himself went to China and said that he sympathized and wouldn't second guess their one child policy of forced abortions and sterilizations. That to me is pretty extreme....

BIDEN: My religion defines who I am, and I've been a practicing Catholic my whole life. And has particularly informed my social doctrine. The Catholic social doctrine talks about taking care of those who - who can't take care of themselves, people who need help. With regard to - with regard to abortion, I accept my church's position on abortion as a - what we call a (inaudible) doctrine. Life begins at conception in the church's judgment. I accept it in my personal life.

But I refuse to impose it on equally devout Christians and Muslims and Jews, and I just refuse to impose that on others, unlike my friend here, the - the congressman. I - I do not believe that we have a right to tell other people that - women they can't control their body. It's a decision between them and their doctor. In my view and the Supreme Court, I'm not going to interfere with that. With regard to the assault on the Catholic church, let me make it absolutely clear, no religious institution, Catholic or otherwise, including Catholic Social Services, Georgetown Hospital, Mercy Hospital, any hospital, none has to either refer contraception, none has to pay for contraception, none has to be a vehicle to get contraception in any insurance policy they provide. That is a fact.

.... Now with regard to the way in which the - we differ, my friend says that he - well I guess he accepts Governor Romney's position now, because in the past he has argued that there was - there's rape and forcible rape. He's argued that in the case of rape or incest, it was still - it would be a crime to engage in having an abortion. I just fundamentally disagree with my friend....

RYAN: All I'm saying is, if you believe that life begins at conception, that, therefore, doesn't change the definition of life. That's a principle. The policy of a Romney administration is to oppose abortion with exceptions for rape, incest and life of the mother.....

Malaysian Court Upholds Shariah Provision Barring Cross Dressing

In Malaysia yesterday, the High Court in Seremban ruled against four transgender plaintiffs who sued in civil court to bar enforcement against them of a law-- enforced in Shariah courts-- that bans Muslim men from cross dressing in women's clothing. AP and BikyaMasr report that four transgender activists who had previously been arrested by religious authorities for violating the law had challenged the law as infringing freedom of expression and as violating the constitutional prohibition on gender discrimination. The government argues that the protection against gender discrimination does not cover sexual orientation. The court held that Muslim transsexuals cannot be exempted from Shariah law applying to them. The four plaintiffs have undergone hormone therapy and present themselves in public as women.

British Soccer Players Are Told New Team Shirts Violate Sharia Law

In Britain earlier this week, Newcastle's soccer team, the Magpies, signed a lucrative deal with Wonga.com, a short-term loan company that operates online, under which Wonga becomes the team's shirt sponsor beginning in the 2013-14 season. (Goal.com). Now, according to Goal.com, Shaykh Ibrahim Mogra, assistant general secretary of the Muslim Council of Britain, has told Muslim players that they will violate Sharia law if they wear the shirts. Under Islamic law, Muslims are not allowed to benefit from the lending of money. Wonga charges over 4000% interest on its loans. Four players on the current Newcastle squad are practicing Muslims.

Suit Filed Challenging NYC Informed Consent Requirements For Certain Ritual Circumcisions

A widely anticipated lawsuit was filed in federal district court in New York yesterday challenging a recently adopted New York City Board of Health regulation requiring informed consent from parents before a controversial method is used in the Jewish religious circumcision of their infant sons. (See prior posting.) As reported by the Wall Street Journal, three Orthodox Jewish organizations and three rabbis sued challenging the city's new requirement that mohels who use metzitzah b'peh (oral suction) when circumcising infants first obtain signed written consent forms from parents warning them of the risk of transmission of diseases such as herpes simplex. The suit contends that the city lacks proof that the procedure poses health risks, and that the regulation unconstitutionally forces private citizens to convey information they do not believe.

UPDATE: The full text of the complaint in Central Rabbinical Congress of the USA and Canada v. New York City Department of Health & Mental Hygiene, (SD NY, filed 10/11/2012) is now available. The complaint asserts a compelled speech claim, as well as free exercise claims under the U.S. and New York state constitutions.

Atlanta Archdiocese Sues Over Contraceptive Insurance Coverage Mandate

The Catholic Archdiocese of Atlanta announced yesterday that it has filed suit in a Georgia federal district court challenging the mandate that health insurance policies cover contraceptive services. Joining the Archdiocese as plaintiffs are the Diocese of Savannah; Catholic Charities of the Archdiocese of Atlanta; and Christ the King School, Atlanta. The complaint (full text) in Roman Catholic Archdiocese of Atlanta v. Sebelius, (ND GA, filed 10/5/2012) alleges that the mandate violates the 1st Amendment, RFRA, the Administrative Procedure Act and amounts to an unconstitutional delegation of legislative authority. Dozens of other Catholic organizations and dioceses have already filed similar suits. (See prior posting.)

Thursday, October 11, 2012

Philippines Enters Agreement With Islamic Rebels; Will Create Area With Sharia Law For Muslims

In the Philippines last Sunday, President Benigno Aquino announced that a preliminary agreement has been reached with the Moro Islamic Liberation Front that will end a Muslim insurgency in Mindanao that has gone on for many years. The framework agreement is scheduled to be signed on Oct. 15. The agreement calls for establishment of an area called Bangsamoro. According to the Philippine Daily Inquirer, Sharia law rather than the Civil Code will apply to Muslims in Bangsamoro, but any law or regulation to be adopted by the region must assure basic constitutional rights and liberties, including separation of religion and state. Any Islamic religious schools (madaris) will be privately funded. The state will continue to regulate public schools, but will be culturally sensitive in creating the curriculum. A 15-member Transition Commission will work out details of the agreement. Some commentators are concerned that the arrangement will infringe religious liberties of both Muslims and Christians in the area.

UPDATE: In the United States, the White House welcomed the signing of the agreement in an Oct. 15 statement by the Office of the Press Secretary. The White House says that the agreement "marks another step toward ending insurrection and restoring good governance."

German Court Refuses To Excuse Muslim Girl From Co-Ed School Swimming Classes

Gatestone Institute reports on a Sept. 28 decision by the Hessian Administrative Court in Germany refusing to excuse a 12-year old Muslim girl from co-ed swimming lessons in her school. The court, emphasizing that religious minorities must avoid segregating themselves, said that the girl's religious beliefs could be accommodated by her wearing a full-body swimsuit (also known as a "burkini"), as do several other Muslim girls at her school. The girl's lawyer said the 12-year old does not want to wear a burkini because it makes her look ugly, and seeing other boys and girls in short clothes violates her modesty. Because of the importance of the case, the court is asking the Federal Administrative Court to review the decision.

Trespass Conviction of Church Member Reversed

In a 2-1 decision in Semenick v. State of Indiana, (IN App., Oct. 9, 2012), and Indiana appellate court reversed the criminal trespass conviction of a long-time church member who was evicted from church services by an off-duty police officer acting as a security guard after the church member complained that a volunteer greeter was speaking too loudly with others during the service. The majority held that the church member had a right to be on church premises and there was no evidence that the off-duty police officer had authority to take sides in a dispute between members and ask one of them to leave. Judge Mathias dissenting argued that defendant's conduct during services was disruptive. The jury, he argued, could reasonably conclude that defendant did not have a contractual interest in the property at issue, and knowingly or intentionally refused to leave the Church after having been asked to do so by an agent of the Church.

Denial of Loan Guarantee for Faith-Based Group Remanded For Consideration of Constitutional Issues

In Care Net Pregnancy Center of Windham County v. U.S. Department of Agriculture, (D DC, Oct. 10, 2012), a Christian pregnancy resource center in Brattleboro, Vermont challenged the Department of Agriculture's denial to it of a loan under the agency's Community Facilities Loan Program. The agency sought to purchase and renovate property for it to use as its permanent facility. While faith-based organizations are eligible to participate in the program, inherently religious activities cannot be supported. Part of Care Net's program included Bible study or Bible centered teaching. The USDA's Appeals Division Hearing Officer concluded that:

Due to the fluctuating nature of [Care Net’s] program and due to a lack of reliable classroom information provided by [Care Net], [the USDA] is unable to realistically separate the eligible activities from the inherently religious activities either by time or space, thereby creating an excessive entanglement between Government and religion.... [Care Net] has not satisfactorily shown that the amount of direct USDA assistance requested does not exceed the cost of the proposed acquisition and renovation attributable to eligible program activities.

The court concluded that this was a reasonable interpretation of the agency's regulations. However the court remanded the case to the USDA's Appeals Division for it to consider Care Net’s claims under the Free Speech and Equal Protection Clauses, the USDA’s defense under the Establishment Clause, and Care Net’s Fair Housing Act claim.

Another Suit Filed Challenging ACA Contraceptive Coverage Mandate

New suits continue to be filed challenging the mandate under the Affordable Care Act requiring that most insurance policies cover contraceptive services. The latest is Korte v. U.S. Department of Health and Human Services, (SD IL, filed 10/9/2012) (full text of complaint) in which the two controlling shareholders of a family-owned construction firm with 90 employees allege that complying with the Mandate would require them to violate their Catholic religious beliefs. Plaintiffs also filed a Memorandum of Law in support of their motion for partial summary judgment and a Memorandum of Law in support of their motion for a preliminary injunction. In a press release, the American Center for Law and Justice announced the filing of the lawsuit.

School Ban On Student Distribution of Proselytizing Messages Is Viewpoint Discrimination

In Gilio v. School Board of Hillsborough County, Florida, (MD FL, Oct. 5, 2012), a Florida federal magistrate judge recommended issuance of a preliminary injunction to allow a 4th grade student to distribute invitations to a church organized Easter egg hunt to fellow classmates. The invitation indicated that the purpose of the event was "To have fun and learn the true meaning of Easter." According to the court:

Board Policy 9700 bans the distribution of materials from religious institutions or organizations that “contain a proselytizing message (i.e., promote the benefits of the specific religion).” The policy also states that school officials shall use the criteria in Board Policy 5722 to determine whether materials are suitable for distribution at school. In turn, one provision in Board Policy 5722 explains that materials are not appropriate if they “[s]eek to establish the supremacy of a particular religious denomination, sect, or point of view over any other religious denomination, sect, or point of view[.]”...

As applied to J.G.’s invitations, the contested provisions ... permit viewpoint discrimination because they target proselytizing messages solely from a religious perspective.... Board Policy 9700 applies only to religious institutions and organizations – not secular groups. The policy also defines “proselytizing messages” exclusively in relation to religious speech, or messages that “promote the benefits of the specific religion.” But proselytizing also has a broader meaning, such as “recruit[ing] members for an institution, team, or group.”... Although the School Board asserts that the policies are viewpoint neutral because they apply equally to all religions, regardless of the underlying theology, this argument is not persuasive.

Student Press Law Center reports on the decision.

Wednesday, October 10, 2012

Russian Court Suspends Sentence Of One Pussy Riot Band Member

In Russia today, according to Reuters, the Moscow City Court suspended the sentence of Yekaterina Samutsevich, one of the 3 members of the punk rock band Pussy Riot who had been given a 2-year prison sentences for hooliganism motivated by religious hatred growing out of a protest performance after the band entered Christ the Savior Cathedral. (See prior posting.) It turns out that Samutsevich had not taken part in the actual performance because she had been stopped and led away before it began. The court however reaffirmed the sentences of the other 2 band members, rejecting the argument they made in appealing their sentences that they did not intend to offend religious believers, but instead "to speak out against the merger between spiritual figures and the political elite of our country."

Indian Court Says Scholarship Program Creates Religious Discrimination

In the Indian state of Gujarat on Monday, a 2-judge bench of the high court upheld the state government's refusal to implement a central government program that awards scholarships to children of 5 minority groups. According to the Times of India, the court ruled that the program violates Article 15(1) of the Indian Constitution by favoring students of one religious group over another. The Constitution bars the State from discriminating against any citizen on grounds of religion, race, caste, sex, or place of birth. The central government says the program is not discriminatory, but is designed to help backward groups and has been implemented in other states. However, rather than implementing its judgment, the court referred the case to a larger bench since an opposite view was taken by another division bench in 2009.

N.Y. Court Recognizes UAE Judgment Enforcing Mahr Agreement

In S.B. v. W.A., (Sup. Ct. N.Y., Sept. 26, 2012), a New York trial court issued an order declaring enforceable an Abu Dhabi court's judgment in a divorce proceeding under the law of the United Arab Emirates enforcing a Muslim couple's Mahr agreement. Defendant raised 1st Amendment objections since the agreement had been entered as part of a religious ceremony two months after the parties' civil marriage. The court concluded, however: "Since a Mahr agreement may be enforced according to neutral principles of law, it will survive any constitutional challenge and be enforceable as a contractual obligation." The agreement entitled the wife to $250,000 in case of a divorce. Volokh Conspiracy has more on the case. [Thanks to Steven H. Sholk for the lead.]

Tuesday, October 09, 2012

Legislative Religious Freedom Caucuses In 9 States Announced

Leaders representing a bi-partisan group of 120 state legislators today announced the formation of religious freedom caucuses in nine state legislatures-- Arizona, Colorado, Florida, Idaho, Kansas, Missouri, New Hampshire, Oklahoma, and Tennessee. Leaders hope to have caucuses formed in all 50 states by the end of 2013. The caucuses will create legislative agendas for strengthening religious liberty in consultation with diverse faith communities, and will create educational materials on religious freedom.

Cert. Denied In RLUIPA Land Use Case

Today, the U.S. Supreme Court denied review in Gutay Christian Fellowship v. San Diego County, CA, (Docket No. 11-1451, certiorari denied 11/9/2012). (Order List.) In the case, the U.S. 9th Circuit Court of Appeals dismissed on ripeness grounds a church's RLUIPA land use lawsuit. The church had not actually filed an application for a modification of use permit. (See prior posting.)

New Jersey Police Charge Proselytizers With Breach of Peace

According to Christian News, police in Jersey City, New Jersey on Saturday cited six members of the Bread of Life Fellowship for breach of the peace when members of the public complained about their preaching, one-on-one witnessing, and handing out of Gospel tracts in Jersey City's Journal Square. Police told the six men who were ticketed that in the future they need a special permit to carryout their proselytizing on the publicly owned property. A hearing on the breach of peace charges is set for next month in Municipal Court. [Thanks to Andrew Reibman for the lead.]

Two More Suits Challenge Contraceptive Coverage Mandate Under Affordable Care Act

New lawsuits continue to be filed challenging the Obama administration’s Mandate under the Affordable Care Act requiring most health insurance policies to cover contraceptive services. A corporation that manufactures precision auto parts, an affiliated limited liability company that manufactures precision medical components, and the Catholic family that owns both companies has filed suit in federal district court in Michigan challenging the Mandate on 1st Amendment, RFRA and Administrative Procedure Act grounds. The complaint (full text) in Autocam Corporation v. Sebelius, (WD MI, filed 10/8/2012) contends that the companies will face fines of $66,000 per day for noncompliance with the Mandate. The Thomas More Society issued a press release announcing the filing of the lawsuit.

Meanwhile, in Texas, two Baptist schools, East Texas Baptist University and Houston Baptist University have also filed suit in federal district court challenging the Mandate. The complaint (full text) in East Texas Baptist University v. Sebelius, (SD TX, filed 10/9/2012) challenges the Mandate on similar grounds. Becket Fund issued a press release announcing the filing of this lawsuit.

As is typical with the numerous suits that have been filed, Catholic institutions and plaintiffs complain that contraception coverage of all kinds is inconsistent with their religious beliefs, but emphasize required coverage for contraceptive drugs and devices that may prevent implantation of fertilized eggs which plaintiffs see as abortion. Protestant plaintiffs focus only on coverage of those contraceptive methods seen as abortifacients.

Sunday, October 07, 2012

Powers of Saudi Religious Police Are Curbed

BBC reported last week that in Saudi Arabia, Abdul Latif Abdul Aziz al-Sheikh, head of the country's Commission for the Promotion of Virtue and Prevention of Vice, has announced new limits on the power of the religious police. Arrests, interrogations, house raids and searches will now be carried out by other government agencies, as the public is increasingly criticizing aggressive enforcement by the Commission's mutawa.

Canadian Government's Cut In Prison Chaplains Is Criticized

The Windsor Star reported yesterday that the Canadian government's decision to stop funding for 50 part-time minority faith chaplains who serve in the Canadian prison system is being criticized by both NDP and Liberal opposition members of Parliament. The move, which affects 31 Christian and 18 non-Christian part-time chaplains will save the government $1.3 million. The 80 full time prison chaplains (all but 1 of whom is Catholic or Protestant) will now serve the non-Christian inmate population. Those opposed to the move by the Conservative government say it infringes religious freedom. Jewish, Muslim and Sikh clergy involved in the program also criticized the cuts. The government's move does not affect some 2500 volunteers who offer religious services, nor does it impact spiritual services for aboriginal inmates.

Recent Prisoner Free Exercise Cases

In Rodriguez v. Hubbard, 2012 U.S. Dist. LEXIS 141089 (ED CA, Sept. 28, 2012), a California federal magistrate judge permitted a Native American inmate to proceed with his free exercise and equal protection challenges (but not his RLUIPA claims) to confiscation of his sacred pipe and bag, a medicine bundle, various bird wings and feathers and spiritual necklaces, as well as denial of spiritual counseling that took place at his former prison.

In Rahman v. Fischer, 2012 U.S. Dist. LEXIS 140455 (ND NY, Sept. 28, 2012), a New York federal district court dismissed for lack of jurisdiction an attempt by Shiite inmates to enforce a settlement in an earlier case in a different federal court. It dismissed, but with with leave to amend, plaintiff's complaint regarding denial of Shiite study classes, books and a locker to store Shiite religious texts.

In Wright v. Hedgepeth, 2012 U.S. Dist. LEXIS 142035 (ND CA, Sept. 30, 2012), a California federal district court allowed a Muslim inmate to proceed with complaints regarding a religious diet and denial of attendance at various religious services. Plaintiff contends that part of the reason for the problem is prison officials' reliance upon inaccurate information about Muslim religious requirements provided by the Muslim chaplain who practices a different, non-traditional version of Islam. The court referred the case to the Pro Se Prisoner Settlement Program.

In Womble v. Berghuis, 2012 U.S. Dist. LEXIS 142704 (WD MI, Oct. 3, 2012), a Michigan federal district court dismissed a number of defendants, but allowed a Buddhist inmate to proceed against two others on claims that he was wrongly removed from the vegan food line for a period of 4 months.

In Clark v. Florida, 2012 U.S. Dist. LEXIS 142423 (MD FL, Oct. 2, 2012), a Florida federal district court dismissed an inmate's claim that he was placed in confinement and stripped of his clothing due to his talking in tongues, which he believes is a sign of his "supernatural" spiritual powers.

In Parms v. Harlow, 2012 U.S. Dist. LEXIS 142382 (WD PA, Oct. 2, 2012), a Pennsylvania federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 142381, Sept. 11, 2012) and dismissed a deaf inmate's claim that his free exercise rights were violated when prison authorities refused to provide him an interpreter so he could understand religious services.

In Jihad v. Fabian, 2012 U.S. Dist. LEXIS 141272 (D MN, Oct. 1, 2012), a Minnesota federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 142519, Sept. 7, 2012) and dismissed a Muslim inmate's claim that prison authorities have failed to comply with a settlement agreement in an earlier case involving plaintiff's access to halal meals. The court held the enforcement of the agreement is a matter for state courts.

In Miller v. County of Nassau, 2012 U.S. Dist. LEXIS 143267 (ED NY, Oct. 3, 2012), a New York federal district court dismissed, with leave to amend, a claim that prison authorities favor favor the Catholic, Jewish, Protestant and Muslim religions over others such as Rastafarian, Santeria, and Native American religions.

In Davis v. Abercrombie, 2012 U.S. Dist. LEXIS 141568 (D HI, Sept. 30, 2012), an Hawaii federal district court refused to issue a preliminary injunction in a suit by two inmates who were practitioners of the Native Hawaiian religion, one of whose prayer object was confiscated and the other whose prayer object was damaged.

In Williams v. Bedsole, 2012 U.S. Dist. LEXIS 143148 (MD AL, Sept. 6, 2012), an Alabama federal magistrate judge recommended dismissing, on the basis of qualified immunity, an inmate's complaint that his religious freedom was infringed when, as part of his participation in the Crime Bill Program, he was forced to stand and face the flag during the Pledge of Allegiance.

In Palermo v. White, 2012 U.S. Dist. LEXIS 142515 (D NH, Sept. 4, 2012), a New Hampshire federal magistrate judge recommended allowing an inmate to move ahead with his complaint that the prison chaplain refused to recognize his pagan religion or provide him with a book, religious items or space to practice his religion.

Suspect Charged By Feds In Ohio Mosque Arson Attack

In Toledo, Ohio on Friday, federal officials filed charges against a 52-year old Indiana man for setting fire to the prayer room of a Toledo, Ohio mosque on Sept. 30. The Toledo Blade reports that Randy Linn was charged with one count of damage to religious property in violation of 18 USC Sec. 247, and one count of use of fire or explosives in connection with the commission of a federal felony in violation of 18 USC Sec. 844(h). The Affidavit in Support of a Criminal Complaint (full text) filed by the FBI says that Linn is an ex-marine who reportedly has recently made anti-Muslim comments, including complaining about the international Muslim community's reaction to a controversial YouTube video and has complained about recent attacks on U.S. embassies and the death of military personnel in the Middle East. While in a police car at the time of his arrest, Linn cursed Muslims. At a press conference on Friday, Wood County, Ohio prosecutors (who dropped state charges in favor of the federal charges) called the arson an act of terrorism.

Saturday, October 06, 2012

Federal Court Issues Consent Judgment Barring Enforcement of Montana Law On Clergy Pressuring Voters

In Zastrow v. Bullock, (D MT, Oct. 2, 2012), a Montana federal district court entered a permanent injunction with the consent of all parties barring enforcement of a Montana statute, MCA § 13-35-218(2) which provides:

A person who is a minister, preacher, priest, or other church officer or who is an officer of any corporation or organization, religious or otherwise, may not, other than by public speech or print, urge, persuade, or command any voter to vote or refrain from voting for or against any candidate, political party ticket, or ballot issue submitted to the people because of the person's religious duty or the interest of any corporation, church, or other organization.

The injunction also bars enforcement of MCA § 13-13-113(1) which requires the text of § 13-35-218(2) to be included in "Warning Posters" displayed in polling stations throughout the state. As reported by the Bozeman Daily Chronicle, the suit was filed by an Assemblies of God minister who was arrested for trespass after he refused to leave an area in a park commonly used to gather signatures. Pastor Calvin Zastrow was attempting to convince voters that they had a religious duty to support pro-life initiatives and candidates. The state subsequently dropped charges against Zastrow. Apparently the law, originally enacted in 1913, has never been enforced.

9th Circuit Upholds Religious Workers' Visa Procedures

In Ruiz-Diaz v. United States, (9th Circuit, Oct. 5, 2012), the U.S. 9th Circuit Court of Appeals rejected RFRA and 14th Amendment challenges 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.) Rejecting a challenge under the Religious Freedom Restoration Act, the court said:

The fundamental flaw in the plaintiffs’ reliance on RFRA is that the challenged regulation does not affect their ability to practice their religion. They are subject to removal after five years because their visas have expired, not because they are practicing their religion.

The court also rejected plaintiffs' equal protection and due process challenges to the regulations. Courthouse News Service reports on the decision.

Pope's Former Butler Sentenced For Theft of Papal Letters

In the Vatican today, the trial of Pope Benedict XVI's former butler concluded with Paolo Gabriele being sentenced to 18 months in jail for stealing the Pope's private correspondence. Some of the letters were published in a best-selling book by Italian journalist Gianluigi Nuzzi. According to the London Observer, the court ordered Gabriele to begin the sentence under house arrest, while a Vatican spokesman said that there was a chance that the Pope would pardon Gabriele. Author and Vatican expert Marco Politi told The Observer:

The scandal has done enormous damage to the Vatican, shedding light on corruption, conflicts between Benedict's secretary of state and senior cardinals and clashes over the need for transparency at the Vatican bank.... The Vatican wanted to close this case rapidly, so the trial was political and the sentence was mild to put an end to the matter.

The prosecution stressed that there is not proof that Gabriele had accomplices, but some critics are skeptical. (See prior related posting.)

Court Finds No Racial Discrimination Against Employee By Billy Graham Organization

In McCallum v. Billy Graham Evangelistic Association, (WD NC, Oct. 5, 2012), a North Carolina federal district court dismissed a Title VII racial discrimination claim that was brought by a former administrative assistant whose job was eliminated by the Billy Graham Evangelistic Association. Plaintiff, Kimberly McCallum, was the only African American employed in BGEA's executive offices. She claims that her loss of her job was triggered by her complaining that BGEA was biased against African-American churches. In a previous decision in the case, the court concluded that the ministerial exception doctrine did not apply because McCallum's duties were not part of the spiritual and pastoral mission of the church and did not involve church governance. Now the court also concluded that the suit is not barred by the church autonomy doctrine because "religion plays a minimal to non-existent role" in the discrimination claim. However the court granted summary judgment to defendants because "a jury could not reasonably find or infer that discrimination was a motivating factor in any of the challenged employment decisions of BGEA."

Friday, October 05, 2012

Washington High Court Splits In Ministerial Exception Case

In Erdman v. Chapel Hill Presbyterian Church, (WA Sup. Ct., Oct. 4, 2012), the Washington Supreme Court in a case producing 3 opinions (lead opinion, concurrence, dissent/concurrence) dismissed a former church employee's claim against the church for negligent supervision and negligent retention of its minister. The court also remanded plaintiff's Title VII claims for further consideration in light of the U.S. Supreme Court's Hosanna-Tabor decision. The case grew out of a dispute between plaintiff, Angela Erdman (the church's executive for stewardship and chief financial officer) and the church's senior pastor, Dr. Mark Toone, over tax, accounting and reimbursement issues relating to tours to religious and historical sites that Toone led for the church. The dispute led to Erdman's firing.

Erdman claimed that Toone intimidated her, verbally abused her, and threatened her in connection with her employment. She filed a complaint with the Presbytery of Olympia, which ruled against her, and she failed to appeal that decision within the church hierarchy. All the judges of the Washington Supreme Court held that Erdman's negligent supervision/retention claims should be dismissed because civil courts must accept the ruling of an hierarchical church' governing body on questions of discipline, faith, or ecclesiastical rule, custom, or law. In addition, 4 judges in the lead opinion held that Erdman's claims must be dismissed under the ministerial exception doctrine. The concurrence concluded that it was not necessary to reach the ministerial exception question. Four judges in the dissent/concurrence held that the ministerial exception doctrine does not apply here, and that the court should use the "neutral principles of law" approach in deciding the case, saying that this is the "best way to protect churches from judicial interference and individuals from the categorical deprivation of their rights based on the sectarian nature of the tortfeasors."

British Appeals Court Says Mother Can Move Children From Charedi To Modern Orthodox Jewish School

In Re G (Children), (ECWA, Oct. 4, 2012), the England and Wales Court of Appeal affirmed a trial court's decision settling a dispute over the religious education of the children of an Orthodox Jewish couple who had separated after their marriage broke down. Both the mother and father had come from the Hassidic community. Both parents agreed to the trial court's order that the 5 children (3 girls and 2 boys) live with the mother, and that the father have extensive contact with them. The court sided with the mother who wants to move the children from a Charedi (ultra-Orthodox) school to a Modern Orthodox Jewish school so that they can "have opportunities she did not have, and the father did not have, to study for A levels and go to university if they want to, and to get jobs and support themselves." The father objected to the change in life style this would create for the children. the Court of Appeal, in siding with the mother, said in part:

First, we must recognise that equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls. Second, we foster, encourage and facilitate aspiration: both aspiration as a virtue in itself and, to the extent that it is practical and reasonable, the child's own aspirations..... Third, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead – what kind of person they want to be – and to give effect so far as practicable to their aspirations. Put shortly, our objective must be to maximise the child's opportunities in every sphere of life as they enter adulthood. And the corollary of this, where the decision has been devolved to a 'judicial parent', is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child's ability to make such decisions in future.

The Telegraph reports on the decision.

Pulpit Freedom Sunday Is This Weekend

The Washington Post reports that 1,400 pastors will be participating in Pulpit Freedom Sunday this weekend. Sponsored by Alliance Defending Freedom, the day is designed to challenge the Internal Revenue Code provisions that bar 501(c)(3) non-profit organizations (including churches) from endorsing or opposing political candidates. Sponsors of Pulpit Freedom Sunday ask pastors to preach from their pulpits on Sunday in accordance with biblical Truth and church doctrine about one or more candidates. The IRS is unlikely to be able to respond with enforcement actions against offending churches because a 2009 court decision required the IRS to enact new regulations determining who can authorize church tax inquiries, and proposals issued by the agency in response have not yet been adopted. (See prior posting.)

Thursday, October 04, 2012

Jehovah's Witness Sues Low-Income Housing Project For Discrimination

The New York Daily News today reports on a federal religious discrimination lawsuit filed by Larry Jackson, a Jehovah's Witness who says he was denied a unit in the low income Glass Factory housing complex in New York City because an employee of the housing project was concerned that he would proselytize door to door in the 45-unit building. The suit against officials of the Bowery Residents Committee seeks $60,000 in punitive damages and an apology. The state Division of Human Rights found probable cause in the case, opening the way for the federal lawsuit. Jackson now lives in shelter in Queens.

Article Reports On Christian Proselytizing By Fellow Students In Georgia Public Schools

Jews On First this week has posted a lengthy article on the proselytizing pressure from fellow-students experienced by Jewish students in the public schools in the Atlanta (GA) area. The article also reports on problems faced by Jewish students relating to absences for religious holidays, and the general pervasiveness of Christianity in the public schools of the Southeast:

Christianity seeps into the South's public schools on several levels. A former football coach, Rick Gage, leads the Duluth, Ga.-based GO TELL Ministries under whose auspices he presents anti-drug or anti-sex speeches in schools that have underlying Christian messages. Its website states: "The purpose of GO TELL Ministries is to reach as many people as possible for God's Kingdom."

The Fellowship of Christian Athletes has clubs in just about every high school in the area.

As long as the religious clubs are run by the students themselves, there is generally no legal issue. But it's not always clear cut. As [Georgia ACLU Director Debbie] Seagraves points out, "Everywhere you go in this state, you will find problems that border on being unconstitutional."

Recent Prisoner Free Exercise Cases

In Dominguez v. Department of Mental Health, 2012 U.S. Dist. LEXIS 138637 (ED CA, Sept. 26, 2012), a California federal magistrate judge's recommendation concluded that the California Department of Corrections and Rehabilitation has 11th Amendment immunity from damages or retrospective injunctive relief in an inmate's claim that his free exercise rights as a Native American were infringed.

In Fulbright v. Jones, 2012 U.S. Dist. LEXIS 138355 (WD OK, Sept. 26, 2012), an Oklahoma federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 138351, Aug. 13, 2012) and held that a 2006 injunction in another case ordering kosher meals for inmates covered only the plaintiffs in that case and cannot be used by another inmate to now receive kosher meals.

In Wilson v. Rascoe, 2012 U.S. Dist. LEXIS 136771 (ND MS, Sept. 25, 2012), a Mississippi federal district court dismissed an inmate's complaint that in one instance when he was in lock down, authorities took so long to respond to his call button that he missed Sunday church services.

In Janali v. Corrections Corporation of America, 2012 U.S. Dist. LEXIS 136905 (SD MS, Sept. 25, 2012), a Mississippi federal district court refused to adopt a magistrate's recommendation (2012 U.S. Dist. LEXIS 136906, Sept. 4, 2012) that claims of a Shia Muslim inmate for separate religious services and a halal diet be dismissed. The court held instead that there should first be a ruling on whether plaintiff's RLUIPA claims are properly before the court (or should be allowed in an amended complaint), and whether discovery should be permitted.

In Ross v. Duby, 2012 U.S. Dist. LEXIS 137465 (WD MI, Sept. 26, 2012), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 138402, Sept. 10, 2012) and dismissed an inmate's claim for damages growing out of a refusal to supply him with a kosher diet. Plaintiff failed to prove that his belief is religious in his own scheme of things or is sincerely held.

In Marzett v. Brown, 2012 U.S. Dist. LEXIS 140199 (ED LA, Sept. 26, 2012), a Louisiana federal district court allowed an inmate to proceed with his claim that prison officials are completely stifling his observance of his Muslim faith, denying Muslim religious services, clergy and materials.

In Ford v. Smith, 2012 U.S. Dist. LEXIS 140466 (ND NY, Sept. 28, 2012), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 140453, Aug. 17, 2012) and dismissed claims by a Nation of Islam inmate that this free exercise and RLUIPA rights were infringed when he was denied hot water to prepare oatmeal for his pre-dawn Ramadan meals.

Wednesday, October 03, 2012

Bible Publisher Sues Challenging Contraception Coverage Mandate

A lawsuit filed yesterday by the Bible publishing company Tyndale House joins the long line of lawsuits challenging the Obama administration's contraceptive coverage mandate under the Affordable Care Act. The complaint (full text) in Tyndale House Publishers, Inc. v. Sebelius, (D DC, filed 10/2/2012) alleges that:

Tyndale and its owners are Christians who are committed to biblical principles, including the belief that all human beings are created in the image and likeness of God from the moment of their conception/fertilization. But Defendants’ recently enacted regulatory mandate under PPACA forces Tyndale to provide and pay for drugs and devices that it and its owners’ believe can cause the death of human beings created in the image and likeness of God shortly after their conception/fertilization.

An ADF press release announcing the filing of the lawsuit explains:

The publisher is subject to the mandate because Obama administration rules say for-profit corporations are categorically non-religious, even though Tyndale House is strictly a publisher of Bibles and other Christian materials and is owned by the non-profit Tyndale House Foundation.

Liberal Egyptian Party Files Criminal Complaint Over Fatwa Issued Against It

Egypt's Constitution Party which was formed last August to provide a liberal alternative to Islamist parties last week filed a complaint with prosecutors over a religious fatwa issued against it. Ahram Online reports that Mohamed El-Athry, an Islamist sheikh and member of Egypt's Constituent Assembly issued a widely-circulated fatwa prohibiting anyone from joining the Constitution Party. Salafist preacher Wagdy Ghoneim posted a video online strongly supporting the fatwa and calling the Constitution Party an infidel organization. Last Thursday the Constitution Party filed a complaint with the supreme state security prosecutors charging El-Athry and Ghoneim with slander and public insult.

California Governor Signs Law Excusing Objecting Clergy From Performing Same-Sex Weddings

In California, on Sept. 30, Gov. Jerry Brown signed SB 1140 making it clear that clergy who object to same-sex marriage need not perform same-sex ceremonies. The new law defines marriage as a civil, not a religious, contract. It also provides that no member of the clergy shall be required to solemnize a marriage that is contrary to his or her faith. Refusal to do so will not affect the tax exempt status of any entity. LGBT Weekly reports on the new law.

Tuesday, October 02, 2012

Religious Worker Visa Program Extended For 3 Years

On Sept. 28, President Obama signed into law S. 3245, a bill that, among other things, extends for 3 years the Special Immigrant Nonminister Religious Worker Program. JTA reports that the program makes up to 5,000 visas a year available to religious workers of all religious persuasions.

Street Preacher Succeeds In His Suit Against Noise Ordinance

In Hampsmire v. City of Santa Cruz, (ND CA, Sept. 28, 2012), a California federal district court, in a suit by a Christian street preacher, struck down as void for vagueness the city of Santa Cruz's noise ordinance which provides:

No person shall make, cause, suffer or permit to be made any noises or sounds (a) which are unreasonably disturbing or physically annoying to people of ordinary sensitiveness or which are so harsh or so prolonged or unnatural or unusual in their use, time or place as to cause physical discomfort to any person, and (b) which are not necessary in connection with an activity which is otherwise lawfully conducted.

The court said, in enjoining enforcement of the ordinance in its present form, said: "While the prohibition on 'unreasonably disturbing' noises establishes an objective standard, the 'necessary' exemption is not similarly tethered to any identifiable criteria."

Court Dismisses Challenge To "Year of the Bible" Resolution Despite Harsh Words About It

In Freedom From Religion Foundation, Inc. v. Saccone, (MD PA, Oct. 1, 2012), a Pennsylvania federal district court, while finding that plaintiffs had standing, dismissed on legislative immunity grounds a lawsuit challenging as an Establishment Clause violation a Pennsylvania House of Representatives resolution declaring 2012 to be the "Year of the Bible." (See prior posting.) The court however made it clear that despite the dismissal, it has considerable problems with the resolution:

... the court’s determination that the defendants engaged in a "legislative act" for purposes of immunity should not be viewed as judicial endorsement of this resolution. It most certainly is not. At best, H.R. 535 is a benign attempt to reaffirm the underlying principles of the Reagan proclamation of 1983. At worst, it is premeditated pandering designed to provide a reelection sound bite for use by members of the General Assembly. But regardless of the motivation behind H.R. 535, its express language is proselytizing and exclusionary.... The court is compelled to shine a clear, bright light on this resolution because it pushes the Establishment Clause envelope behind the safety glass of legislative immunity. That it passed unanimously is even more alarming. This judicial rebuke of the resolution is not intended to impugn the religious beliefs of any citizen. To the contrary, the court’s disapprobation is directed to the blatant use of legislative resources in contravention of the spirit – if not the letter – of the Establishment Clause. At a time when the Commonwealth of Pennsylvania faces massive public policy challenges, these resources would be far better utilized in meaningful legislative efforts for the benefit all of the citizens of the Commonwealth, regardless of their religious beliefs.

The Philadelphia Inquirer reports on the decision.

California Governor Signs Law Banning Reparative Therapy For Minors; 2 Lawsuits Threatened

As reported by AP, in California on Saturday Gov. Jerry Brown signed SB No. 1172, a bill that prohibits mental health professionals from engaging in sexual orientation change efforts (so-called reparative therapy) with a patient under 18 years of age. The new law applies only to licensed therapists, not clergy who advise young people. But it will impact licensed Christian psychotherapists who counsel teenage clients. Two Christian legal groups, the California-based Pacific Justice Institute and Florida-based Liberty Counsel have announced that they will file federal lawsuits challenging the law's constitutionality.

UPDATE: The full text of the complaint in Liberty Counsel's lawsuit, Pickup v. Brown, (ED CA, filed 10/4/2012) is available online, while ABC News reports on details of the Pacific Justice Institute's suit.

Supreme Court Term Opens With Several Items of Interest

Yesterday the U.S. Supreme Court opened its new term. As reported by the Huffington Post, on Sunday, a day before the new term opened, six of the justices attended the annual Red Mass that is sponsored by the John Carroll Society. In attendance at the Cathedral of St. Matthew the Apostle were Justices John Roberts, Antonin Scalia, Elena Kagan, Anthony Kennedy, Clarence Thomas and Stephen Breyer. Archbishop Timothy P. Broglio, Archbishop for the Military Services, USA, delivered the homily (full text).

As usual on the first day of the term, the Court issued a large number of orders (over 2000). (Order List.) Among those, it denied certiorari in two cases of interest. It refused review in Presbytery of of South Louisiana v. Carrollton Presbyterian Church, (Docket No. 11-1393). In the case a Louisiana state appellate court upheld the right of a Presbyterian congregation to sell real property titled in its name. It held that a provision in the PCUSA's Book of Order regarding rights of the parent church does not apply to this case. (See prior posting.)

The Court also denied review in Rubashkin v. United States, (Docket No. 11-1203). In the case, the U.S. 8th Circuit Court of Appeals rejected a motion for a new trial and a challenge to the length of the sentence imposed on Sholom Rubashkin, the Orthodox Jewish former vice president of the kosher meat processing firm, Agriprocesors, in Postville, Iowa. Rubashkin was convicted on financial fraud charges. (See prior posting.)

In a somewhat unusual move, the Court ordered the United States, the defendant, to file a response to the motion for a rehearing in Liberty University v. Geithner, (Docket No. 11-438), a case involving challenges to the Affordable Care Act. The Court had previously denied certiorari in the case in which a majority of a 4th Circuit panel concluded that the federal tax Anti-Injunction Act bars consideration of the challenge to the law. (See prior posting.) In a press release, Liberty Counsel explains that it is seeking the rehearing because the Supreme Court in its decision in other cases last June decided that the Anti-Injunction Act does not apply. Plaintiffs want their case remanded, now that the procedural hurdle is removed, for consideration of their free exercise and RFRA claims regarding alleged funding of abortions.

Sunday, September 30, 2012

PUBLICATION SCHEDULE: LOOK FOR NEW POSTINGS ON TUESDAY NIGHT

Russian City Halts Ticket Sales For Musical To Consider Religious Offense Complaint

Russia's Duma is considering amendments to the country's criminal code to specifically outlaw causing of religious offense. As reported last week by RIA Novosti, the bill was drafted in the wake of the sentencing of 3 members of the punk rock group Pussy Riot for hooliganism after their performance in a Moscow cathedral. The proposed law would impose a sentence ranging from a fine to up to 5 years in prison for violation of its prohibitions. Apparently relying on the proposed legislation, 18 Orthodox Christian private citizens in the Russian city of Rostov-on-Don have complained to the city about the scheduled performance of the rock opera Jesus Christ Superstar. They contend that it is an inaccurate portrayal of Jesus. RT reported yesterday that the city administration has ordered the theater to stop selling tickets for the performance while the city considers the complaint.

Diocese Fails To Get Summary Judgment In Suit To Hold It Responsible For Clergy Sexual Abuse

In Colomb v. Roman Catholic Diocese of Burlington Vermont, Inc., (D VT, Sept. 28, 2012), a Vermont federal district court refused to grant summary judgment to a Catholic diocese in a suit that is seeking to hold it responsible for sexual abuse in the 1970's by Father Edward Paquette and other priests. First the court ruled that it is impossible to rule as a matter of law that the statute of limitations has run since it must be determined when plaintiff made the connection between his longstanding psychological issues and the sexual abuse he suffered as a child. It also refused to grant summary judgment based on various objections to the way in which damages are awarded and rejected the claim that the 1st Amendment precludes a suit against the diocese for negligent hiring or supervision.

Recent Prisoner Free Exercise Cases

In Fistell v. Suthers, 2012 U.S. Dist. LEXIS 133718 (D CO, Sept. 19, 2012), a Colorado federal district court refused to hold prison authorities in contempt of a prior injunction for their failure to furnish an inmate a kosher meal for breakfast and lunch on one day while the prison was on lock down because of a power outage. Kosher meals had been furnished during numerous other lock downs.

In Rice v. Ramsey, 2012 U.S. Dist. LEXIS 134284 (ND CA, Sept. 18, 2012), a California federal district court dismissed on the merits an inmate's complaint that AEM Muslims were refused separate access to the interfaith chapel to conduct classes and their request to hire a full or part time AEM imam was denied. Plaintiff's complaint regarding denial of Suhoor meals was dismissed for failure to exhaust administrative remedies.

In Cato v. Ramos, 2012 U.S. Dist. LEXIS 134163 (WD NY, Sept. 19, 2012), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 134150, Aug. 10, 2012) and dismissed an inmate's claim that a staffer at the prison facility where he was formerly housed interfered with the provision of Rastafarian holy day meals and discriminated against Rastafarian inmates.

In Native American Council of Tribes v. Weber, 2012 U.S. Dist. LEXIS 133937 (D SD, Sept. 19, 2012), a South Dakota federal district court held that the South Dakota prison system violated RLUIPA when it banned all tobacco, including its use in Native American religious ceremonies. According to the court: "the ban was implemented to effectuate what defendants believed was the advice of the medicine men and spiritual leaders regarding the Lakota religion rather than due to security reasons. Defendants essentially enforced what they determined to be the more "traditional" Lakota belief. But the state may not determine what is "traditional" or "orthodox" within a certain religious tradition."

In Reeder v. Hogan, 2012 U.S. Dist. LEXIS 134709 (ND NY, Sept. 19, 2012), a New York federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 134710, July 11, 2012) and dismissed an inmate's suit against the prison's "grievance sergeant" complaining about not receiving Ramadan meals.

In Rowser v. Desousa, 2012 U.S. Dist. LEXIS 134858 (SD NY, Sept. 17, 2012), a New York federal district court dismissed a suit by an inmate complaining about an attempted strip frisk that violates Muslim religious rules.

In Myers v. Burdick, 2012 U.S. Dist. LEXIS 135999 (ED WI, Sept. 24, 2012), a Wisconsin federal district court permitted an inmate to proceed with his RLUIPA claim (but not his free exercise or equal protection claims) challenging the prison system's policy on tarot cards. The court held that "a factfinder could conclude that a total denial of all tarot cards other than the Aquarian Tarot and specifically the denial of the Golden Dawn Tarot and its companion book, was not the least restrictive means of furthering a compelling governmental interest."

In Coleman v. Allen, 2012 U.S. Dist. LEXIS 135816 (MD AL, Sept. 24, 2012), an Alabama federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 136411, Sept. 7, 2012) and dismissed claims by a Native American inmate regarding constraints on religious ceremonies, ordering of religious items, use of sweat lodge and tobacco, interruption of religious services, and access to ceremonial grounds at the prison in which he was formerly held.

In Riley v. DeCarlo, 2012 U.S. Dist. LEXIS 137279 (WD PA, Sept. 25, 2012), a Pennsylvania federal district court dismissed a complaint by a Muslim inmate that he was not furnished with a Halal diet.

In Bonilla v. Annucci, 2012 U.S. Dist. LEXIS 137235 (ND NY, Sept. 25, 2012), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 137241, Aug. 16, 2012), and permitted inmates who are members of Nations of Gods and Earth to move ahead with their free exercise and RLUIPA claims regarding restrictions on congregative opportunities and wearing crowns (but not as to restrictions on displaying symbols, flag and texts). The court also allowed plaintiffs to move ahead with their equal protection challenges to restrictions on displaying NGE symbols and the Universal Flag, wearing crowns, and on congregating for services, classes, and on Honor Days.

Saturday, September 29, 2012

Court Refuses To Enjoin Enforcement of Missouri's House of Worship Protection Act

In Survivors Network of Those Abused by Priests v. Joyce, (ED MO, Sept. 28, 2012), a Missouri federal district court refused to issue a preliminary injunction to prevent enforcement of Missouri's House of Worship Protection Act against a group representing clergy sex abuse victims. SNAP, which engages in peaceful picketing and leafleting outside of churches, claims the recently effective law infringes their free speech rights and is unconstitutionally vague. The court, however, held that plaintiffs failed to show a likelihood of success on the merits of their claims. It concluded that the statute is a content-neutral time, place and manner regulation:

Plaintiffs here, as peaceful demonstrators, face relatively minimal restriction on their activities. They may freely walk on the public areas adjacent to houses of worship, carry signs and banners, and distribute leaflets communicating their message before services, when services are not being held, and Plaintiffs may do so even during worship services, as long the manner in

The court also rejected plaintiffs' claim that both the definition of "house of worship" and the definition of the prohibited conduct are overly broad and vague:

What the statute prohibits is willful behavior intended to interfere with the successful conduct of a worship service. The probability that a reasonable person would not understand any of the common terms used to describe the prohibited behavior is quite remote.