Religion Clause

Sunday, February 03, 2013

Recent Prisoner Free Exercise Cases

In Thompson v. Smeal, (3d Cir., Feb. 1, 2013), the 3rd Circuit vacated the trial court's decision and remanded for further proceedings an inmate's complaint that Christian inmates were not allowed to congregate for special feasts on Christmas and Easter, even though various other religious groups were allowed special religious meals.

In Weeks v. Corizon Medical Services, 2013 U.S. Dist. LEXIS 10016 (ED MO, Jan. 25, 2013), a Missouri federal district court dismissed an inmate's complaint that he was forcibly injected with a tuberculosis test, in violation of his sincerely held beliefs as a member of The House of Yahweh.

In Lewis v. Zon, 2013 U.S. Dist. LEXIS 10374 (WD NY, Jan. 25, 2013), a New York federal district court dismissed a Jewish inmate's complaint that his RLUIPA and free exercise rights were violated by prison policies in the Special Housing Unit requiring the plastic wrap covering his kosher meals to be removed and barring him from attending congregational services. It also rejected his claim that denying him food he needed for medical reasons on Jewish fast days violates the Establishment Clause.

In Pennick v. Williamson, 2013 U.S. Dist. LEXIS 10420 (WD WA, Jan.25, 2012), a Washington federal district court dismissed on qualified immunity grounds an inmate's complaint that for two days he was mistakenly left off the list of those to receive Passover food. In a separate order (2013 U.S. Dist. LEXIS 10489, Jan. 24, 2013) the court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 185127, Oct. 19 2012) to allow plaintiff to proceed with his complaint regarding what lists control entitlement to Passover meals.

In Blanks v. Cate, 2013 U.S. Dist. LEXIS 11233 (ED CA, Jan. 25, 2013), a California federal magistrate judge recommended dismissing complaints by a Rastafarian inmate that authorities failed to procure a Rastafarian chaplain, did not provide a separate outside place of Rastafarian worship, delayed issuing renewed artifact chronos and approval of a Rastafarian religious vendor.

In Ward v. Rich, 2013 U.S. Dist. LEXIS 11310 (CD CA, Jan. 25, 2013), a California federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 185223, Sept. 26, 2012) and dismissed claims that an inmate was punished for continually singing gospel songs, and that he was denied his Bible for three days.

In Warren v. Washington, 2013 U.S. Dist. LEXIS 12679 (WD MI, Jan. 30, 2013), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185360, Dec. 10, 2012) and dismissed an Orthodox Jewish inmate's complaint that he was discriminated against, was banned from the building where the Messianic Jewish group was allowed to continue their services, and was forced to practice his religion outside on a smoke pad.

In Crawford v. Bukowski, 2013 U.S. Dist. LEXIS 12113 (CD IL, Jan. 28, 2013), an Illinois federal district court dismissed an inmate's claim that he was denied vegan meals that were required by his religious beliefs.

In Papa v. Chester County Prison, 2013 U.S. Dist. LEXIS 13054 (ED PA, Jan. 31, 2013), a Pennsylvania federal district court dismissed an inmate's complaint that he had not received kosher meals, had rarely seen a rabbi, did not have his worship requests met and received a Tanach only after significant delay.

In Sargent v. New Hampshire Department of Corrections, 2013 U.S. Dist. LEXIS 13964 (D NH, Jan. 31, 2013), a New Hampshire federal magistrate judge in a supplemental report concluded that an inmate's free exercise rights were not violated when he was barred from proselytizing other inmates during the sex offender treatment program.

In Ericson v. Magnusson, 2013 U.S. Dist. LEXIS 12992 (D ME, Jan. 31, 2013), a Maine federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185504, Dec. 18, 2012) and permitted an inmate to move ahead with claims for declaratory or injuntive relief based on his complaint that he was not allowed to attend Protestant worship services or fast, and was not given access to sufficient hymnal books or a baptismal font.

Saturday, February 02, 2013

Court Dismisses Challenge to Hebrew National's Kosher Certification

In Wallace v. ConAgra Foods, Inc., (D MN, Jan. 31, 2013), a Minnesota federal district court dismissed a suit by consumers who claim that ConAgra misrepresented on packaging that Hebrew National products are made of "100% kosher beef." Plaintiffs claim that the method of cattle slaughter used by the contractor that slaughters cattle for ConAgra fails to meet standards for kosher slaughter even though a certifying agency, Triangle K, certifies the beef as kosher. The court concluded that whether products meet the standards for kosher meat "is a religious question that is not the proper subject of inquiry" by a civil court, even though this will leave consumers without a remedy, other than not purchasing Hebrew National products or those certified by Triangle K. (See prior related posting.)

Court Dismisses Priest's Suit Against Parishioner On Ecclesiastical Abstention Grounds

In Jennison v. Prasifka, (TX App., Jan. 28, 2013), a Texas state appellate court invoked the ecclesiastical abstention doctrine to dismiss a suit by an Episcopal priest against a parishioner alleging slander, tortious interference with contractual relationship and wrongful discharge. Plaintiff, Raymond Jennison, who also was a stockbroker, sued over a letter that Jeanette Prafiska had written to the Bishop complaining that Jennison had been churning her brokerage account. In response the Bishop placed Jennison on inactive status as a priest. The court held:

Jennison’s claims ... are inextricably intertwined with the church’s investigation of his performance as a priest and the discipline imposed by the church for inadequate performance.... Therefore, adjudication of Jennison's claims would neccessariIy require an inquiry into and interpretation of canon law, application of church policies, and the church’s assessment of Jennison’s fitness to perform the duties of a priest....[This] would impinge upon the church’s ability to manage its internal affairs and impair the effectiveness of the church’s disciplinary process.

Friday, February 01, 2013

4th Circuit Decides Test For Zoning Denial Substantial Burden Under RLUIPA

In Bethel World Outreach Ministries of Montgomery County v. Montgomery County Council, (4th Cir., Jan. 31, 2013), the U.S. 4th Circuit Court of Appeals clarified the standard to be applied under the Religious Land Use and Institutionalized Persons Act to claims that a zoning denial imposed a "substantial burden" on a church's free exercise of religion. To show a substantial burden, a religious organization need not show that the challenged land use regulation pressured it to violate its beliefs. Instead, it need only show that the government regulation puts substantial pressure on it to modify its behavior. Also, the religious organization need not show that the land use regulation targeted it. Applying these tests, the court reversed the district court's grant of summary judgment to the county on plaintiff's substantial burden claim. However the court affirmed the dismissal of RLUIPA discrimination and unreasonable limitation claims, as well as of state and federal constitutional claims.

Administration Issues Proposed Rules On Contraceptive Coverage Exemption For Non-Profit Religious Instituitons

The Centers for Medicare & Medicaid Services today issued a Notice of Proposed Rulemaking building on last March's Advance Notice, designed to accommodate objections of religious non-profit organizations to the Affordable Care Act contraceptive coverage mandate. Under today's proposal:

Group health plans of "religious employers" are totally exempt from the contraceptive coverage mandate. Today's proposal revises the definition of "religious employer" from the March release. The proposed exemption now conforms to language in Internal Revenue Code Sec. 6033-- any church, integrated auxiliary of a church, convention or association of churches, or religious order is a "religious employer." This eliminates a narrower test suggested in the Advance Notice.

Today's proposal also fleshes out accommodations for non-profit religious organizations that do not meet the definition of "religious employer", but oppose providing coverage for some or all contraceptive services They may self-certify their objection to their health insurance issuer or third-party administrator. The health insurer will issue the organization's employees (or students if the religious organization is a college or university) an individual market contraceptive coverage policy at no cost. The insurer can afford to do this because the policies cover the same set of individuals they are already insuring, and they will experience lower costs from improvements in women’s health and fewer childbirths.

Today's proposals give no relief to for-profit businesses whose owners object on religious grounds to the contraceptive coverage mandate.

UPDATE: The full text proposed rules were published in the Feb. 6 Federal Register.

LA Archbishop Sanctions Predecessor Over Handling of Abusive Priests

AP reports that less than two weeks after priest personnel files were released in a settlement of a clergy sexual abuse lawsuit (see prior posting), retired Archbishop Roger Mahony and one of his top aides were sanctioned by Mahony's successor, Archbishop Jose Gomez. In a statement (full text) posted on the Archdiocese website, Gomez announced the unprecedented steps:

I cannot undo the failings of the past that we find in these pages. Reading these files, reflecting on the wounds that were caused, has been the saddest experience I’ve had since becoming your Archbishop in 2011.

My predecessor, retired Cardinal Roger Mahony, has expressed his sorrow for his failure to fully protect young people entrusted to his care. Effective immediately, I have informed Cardinal Mahony that he will no longer have any administrative or public duties. Auxiliary Bishop Thomas Curry has also publicly apologized for his decisions while serving as Vicar for Clergy. I have accepted his request to be relieved of his responsibility as the Regional Bishop of Santa Barbara.

The released files show various actions by Mahony and Curry transferring accused pedophile priests and shielding them from law enforcement authorities. (See prior posting).

Iceland's Parliament Gives Secular Life Stance Groups Equal Status With Religions

The National Secular Society reports that this week, Iceland's Parliament (Althing) passed a law to allow the Icelandic Ethical Humanist Association, along with other secular life stance organizations, to register and obtain equal legal status with religions. The new law also provides that babies will no longer be automatically be registered into their mother's religion. Instead it will be registered into the religion or secular life stance of both parents, but only if both parents have the same religion or life stance.

Fatwa Opposes Lebanese President's Call For Legalizing Civil Marriage

In Lebanon, when couples of different religious affiliations wish to marry, they must travel outside of the country to do so. Last Sunday, the country's President, Michel Sulaiman , indicated that he would support legislation to create civil marriage inside Lebanon. As reported by Gulf News this week, a day after the President's statement, Grand Mufti Shaikh Mohammad Rashid Qabbani, Lebanon's top Sunni Muslim authority, issued a fatwa stating:

Any Muslim with legal or executive authority in Lebanon who supports the legalisation of civil marriage is an apostate and outside the religion of Islam.

Mandate Challenge By St. Louis Archdiocese Dismissed on Ripeness and Standing Grounds

Echoing the holdings in a number of other cases in which non-profit religious entities have filed suit to challenge the Affordable Care Act contraceptive coverage mandate, a Missouri federal district court on Tuesday dismissed for lack of ripeness and standing the complaint filed by the St. Louis Catholic Archdiocese and its Catholic Charities affiliate. In Archdiocese of St. Louis v. Sebelius, (ED MA, Jan. 29, 2013), the court held:

Because the preventive services coverage regulations are currently undergoing a process of amendment to accommodate Plaintiffs’ religious objections, and because Plaintiffs are protected from enforcement by the safe harbor, the Court concludes that Plaintiffs’ claims are not ripe for judicial review.

The court also concluded that plaintiffs lack standing because promised amendments may result in the mandate never applying to them. St. Louis Review reports on the decision.

Thursday, January 31, 2013

2nd Circuit Upholds Middle School's Exclusion of Religious Blessing From Student's Speech At School Ceremony

In A.M. v. Taconic Hills Central Hills School District, (2d Cir., Jan. 30, 2013), the U.S. 2nd Circuit Court of Appeals rejected a free speech claim by a middle school student, the co-president of student council, who was not permitted to include a religious blessing at the end of her remarks at the school's Moving-Up Ceremony. The court concluded that the Ceremony was a school-sponsored expressive activity and that the student's speech would be perceived as being endorsed by the school. It held that under the standard set out by the Supreme Court in its Hazelwood opinion, requiring the student to remove the purely religious content from her speech was reasonably related to the legitimate pedagogical concern of avoiding a violation of the Establishment Clause.

7th Circuit Enjoins Enforcement of Contraceptive Coverage Mandate Against Catholic-Owned Small Business

In Grote v. Sebelius, (7th Cir., Jan. 30, 2013), the U.S. 7th Circuit Court of Appeals in a 2-1 decision issued an injunction pending appeal to prohibit enforcement of the Affordable Care Act contraceptive coverage mandate against a Catholic-owned for-profit small business and its owners. The company (formed as an LLC with a corporation as its managing member) manufactures vehicle safety systems and employs 1148 people at various locations. The majority largely relied on its earlier decision in Korte v. Sebelius (see prior posting) in finding that plaintiffs' free exercise rights are substantially burdened in violation of the Religious Freedom Restoration Act. The majority concluded that plaintiffs' case here is stronger than in Korte because this is a self-insured plan, and plaintiffs have never covered contraceptive services for their employees. The majority added:

the government’s minimalist characterization of the burden continues to obscure the substance of the religious‐liberty violation asserted here.

Judge Rovner dissented at length, saying in part:

the obligation to cover contraceptives falls not on the Grotes personally but on Grote Industries’ health care plan.... The owners of an LLC or corporation, even a closely‐held one, have an obligation to respect the corporate form, on pain of losing the benefits of that form should they fail to do so.... The Grotes are not at liberty to treat the company’s bank accounts as their own; co‐mingling personal and corporate funds is a classic sign that a company owner is disregarding the corporate form and treating the business as his alter ego. So long as the business’s liabilities are not the Grotes’ liabilities – which is the primary and “invaluable privilege” conferred by the corporate form, ... neither are the business’s expenditures the Grotes’ own expenditures. To suggest, for purposes of the RFRA, that monies used to fund the Grote Industries health plan – including, in particular any monies spent paying for employee contraceptive care – ought to be treated as monies from the Grotes’ own pockets would be to make an argument for piercing the corporate veil. I do not understand the Grotes to be making such an argument....

Medical decisions are made in private on an individual basis. Any given medical decision, depending on the nature of the patient’s condition, the available treatments, and the circumstances confronted by doctor and patient, might be inconsistent with the religious beliefs of one or more owners of the company that sponsors the patient’s workplace insurance. Holding that a company shareholder’s religious beliefs and practices are implicated by the autonomous health care decisions of company employees, such that the obligation to insure those decisions, when objected to by a shareholder, represents a substantial burden on that shareholder’s religious liberties, strikes me as an unusually expansive understanding of what acts in the commercial sphere meaningfully interfere with an individual’s religious beliefs and practices.

Default Judgment Upheld Against Old Order Amish Member For Ignoring Building Code

In Eau Claire County v. Borntreger, (WI App., Jan. 29, 2013), a Wisconsin appeals court upheld a trial court's refusal to reopen a default judgment that had been entered against a member of the Old Order Amish for failing to comply with the county building code in constructing a one-family residence. The appeals court concluded that defendant had not established a meritorious religious defense to the provisions of the code that the county sought to enforce, even though defendant might have a religious defense to other provisions of the code. Defendant's religious objections to installing smoke detectors does not excuse non-compliance with the requirement that the building be structurally sound. WTAQ reports on the decision.

FBI Issues New Hate Crime Reporting Guidelines and Training Manual

ADL's Civil Rights Blog reports on the FBI's release last month of a new guide on reporting of hate crimes titled Hate Crime Data Collection Guidelines and Training Manual. According to the Introduction in the Manual, it

is intended to assist law enforcement agencies in reporting incidents of hate crime to the FBI UCR Program. It addresses policy, the types of bias crime to be reported, how to identify a hate crime, and guidelines for reporting hate crime.

[Thanks to Michael Lieberman for the lead.]

Ministerial Exception Ends Wrongful Termination Lawsuit Against United Methodist Agency

In Mills v. Standing General Commission on Christian Unity, (NY Sup. Ct., Jan. 29, 2013), a New York state trial court dismissed a breach of contract wrongful termination lawsuit that had been filed by a former Associate General Secretary of Dialogue and Interfaith Relations for a program-related agency of The United Methodist Church. The court concluded that the ministerial exception doctrine applies because plaintiff had a role in conveying the Church's message and carrying out its mission. Deciding the case would require the court to interpret the Church's Book of Discipline. Furthermore plaintiff failed to show that there was an employment contract between him and defendant Thompson Reuters News & Insight reported on the decision.

Amicus Briefs In Same-Sex Marriage Cases Now Available Online

Numerous amicus briefs have now been filed in the two Supreme Court same-sex marriage cases that will be argued on March 26 and 27. A number of the amici are religiously affiliated organizations. Scotus Blog has links to the full text of all the briefs in Hollingsworth v. Perry and in United States v. Windsor.

Wednesday, January 30, 2013

Some Rabbis Will Refuse To Comply With NYC Informed Consent Circumcision Rule

As previously reported, a New York federal district court earlier this month refused to issue a preliminary injunction to block enforcement of the New York City Health Department's rule requiring that a mohel (Jewish ritual circumciser) obtain a written informed consent form from parents before he performs a circumcision using the oral suction technique (metzitzah b'peh). The Forward reports today that some Orthodox rabbis say they will refuse to comply with the rule. The American Board of Ritual Circumcision says that its members will not have parents sign the waiver forms. Other Orthodox groups however are not necessarily urging civil disobedience.

Florist Sued For Discrimination After Refusing To Deliver Flowers To Winning Establishment Clause Plaintiff

Following up on a right-to-sue letter it obtained from the Rhode Island Commission for Human Rights (see prior related posting), the Freedom From Religion Foundation has filed a state court lawsuit against a florist who refused to deliver flowers ordered by FFRF for a successful plaintiff in an Establishment Clause case. The complaint (full text) in Freedom From Religion Foundation, Inc. v. Plowman, (RI Super. Ct., filed 1/25/2013), grows out of FFRF's sending of congratulatory flowers to 16-year old Jessica Ahlquist who successfully challenged a prayer mural that hung in the auditorium of Cranston West High School. (See prior posting.) The florist refused to deliver the order, and defended the decision publicly as the right to free speech, saying that an independent owner can choose his customers. The complaint alleges that the refusal violates RI Gen. Stat. Chap. 11-24, Rhode Island's ban on denial of equal access to public accommodations based on religion, or, in this case, based on non-belief. FFRF issued a press release announcing the filing of the lawsuit.

Hare Krishna Priest Sentenced To 3 Years In Visa Fraud Case

Last week, a federal district court in Milwaukee, Wisconsin, sentenced Hare Krishna priest Sagarsen Haldar to 3 years in prison for bringing sham priests from India to the United States under the religious worker visa program, and extorting money from them. US Indian reports that the priest, also known as Gopal Hari Das, was convicted of conspiracy to defraud the government,

Suit Challenges Mall's Restriction On Proselytizing

The Pacific Justice Institute announced last week that it had filed suit in a Tulare County, California state court on behalf of John Vadnais, an elder at a local church, who wants to share his Christian belief with other shoppers at Visala Mall. Mall management has told him that he may not approach strangers in the mall to talk about religion, The suit alleges violation of Vadnais' free speech rights and the public accommodation law.

Tuesday, January 29, 2013

House of Commons Passes Bill Allowing Royals to Marry Catholics

In Britain yesterday, the House of Commons completed its action on the Succession to the Crown Bill. Now that Commons passed the bill on its third reading, it goes to the House of Lords for debate and vote. Among other things, the bill removes the disqualification from succession to the Crown of a royal heir who has married a Roman Catholic. The bill also eliminates consideration of gender in determining the order of succession to the throne, and limits to the 6 people in line for the throne the requirement of royal consent to their marriage. CBC News reported yesterday that Prince Charles is concerned about the impact of the bill on the relationship of the Crown to the Church of England. However the Church of England does not oppose the bill.

School Accommodates Muslim Students' Prayer Needs If They Have High Grades

The Washington Post reported yesterday on an interesting method of accommodating Muslim students' religious needs at Prince Georges County, Maryland, Parkdale High School. The suburban Washington D.C. school allows students who are members of the Muslim Students Association and who have parental permission to do so to leave class and pray together for 8 minutes each day so long as the student has high grades. Ten students currently qualify for the daily pass, and another student is working hard to raise his grades so he can join the prayer group.

Texas Legislator Proposes Offsetting State Tax Refund For Contraceptive Coverage Refusal

As reported by Courthouse News Service yesterday, a bill has been introduced in the Texas legislature that would give offsetting state tax refunds or credits to any business that pays a federal fine for refusing on conscience grounds to offer employees a health insurance plan that includes emergency contraception. H.B. 649 provides that a business is entitled to an offsetting refund of sales taxes, state franchise taxes, and any other tax paid if it refused solely because of the religious convictions of its owner, to comply with the contraceptive coverage mandate. The bill was introduced Jan. 23 by Republican representative Jonathan Stickland.

Monday, January 28, 2013

Iran Sentences Pastor To 8 Years In Prison

Reuters reported yesterday that Iranian-American Christian pastor Saeed Abedini has been sentenced to 8 years in prison by an Iranian court after his attorney had only one day to present his defense to charges of threatening Iran's national security through his leadership in Christian house churches. A U.S. State Department spokesman said: "We condemn Iran's continued violation of the universal right of freedom of religion and we call on the Iranian authorities to respect Mr. Abedini's human rights and release him." (See prior related posting.)

Sunday, January 27, 2013

Today Is International Holocaust Memorial Day

Today is International Holocaust Memorial Day-- so designated by the United Nations which chose the date of the liberation of Auschwitz-Birkenau for the commemoration. (Holocaust Memorial Museum). President Obama issued a statement (full text) saying in part:

On January 27th, International Holocaust Remembrance Day, we honor the memories of the 6 million Jews and millions of other innocent victims whose lives were tragically taken during the Holocaust over sixty years ago. Those who experienced the horrors of the cattle cars, ghettos, and concentration camps have witnessed humanity at its very worst and know too well the pain of losing loved ones to senseless violence.

But while this is a time for mourning and reflection, it is also the time for action. On this day, we recall the courage, spirit, and determination of those who heroically resisted the Nazis, exemplifying the very best of humanity. And like these courageous individuals, we must commit ourselves to resisting hate and persecution in all its forms.

According to Deutsche Welle German Chancellor Angela Merkel in her weekly online podcast said in part:

Naturally, [Germany has] an everlasting responsibility for the crimes of national-socialism, for the victims of World War II, and above all, for the Holocaust.

Court Rejects Religious Discrimination Claim Against School For Not Passing Student

In Kajoshaj v. City of New York, (ED NY, Jan. 23, 2013), a New York federal district court rejected claims by an Albanian-American Muslim that the New York City schools discriminated against his son on the basis of religion and national origin when Public School 180 kept his son in 5th grade rather than passing him to the 6th grade. The court rejected plaintiff's claim under Title VI of the 1964 Civil Rights Act, quoting New York courts in saying: "Strong policy considerations militate against the intervention of courts in controversies relating to an educational institution's judgment of a student's academic performance." The court also rejected equal protection, due process and state law challenges.

Recent Prisoner Free Exercise Cases

In Davila v. Marshall, 2013 U.S. Dist. LEXIS 8816 (SD GA, Jan. 23, 2013), a Georgia federal magistrate judge allowed an inmate to proceed with his complaint that prison authorities have not allowed him to have Santeria beads, cowrie shells, or his Bible.

In McBryde v. Thomas, 2013 U.S. Dist. LEXIS 8492 (D MT, Jan. 22, 2013), a Montana federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185017, Nov. 27, 2012) and permitted an inmate to proceed against various defendants with his complaint that he was required to participate in an AA/NA program with religious content.

In Sampson v. Lee, 2013 U.S. Dist. LEXIS 8628 (WD VA, Jan. 22, 2013), a Virginia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185003, Dec. 19, 2012) and dismissed an inmate's complaint that he was removed from a no-pork special diet for 14 days.

In Holmes v. Conway, 2013 U.S. Dist. LEXIS 8138 (ND GA, Jan. 18, 2013), a Georgia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 184982, Dec. 21, 2012) and dismissed an inmate's complaint that he was denied a Halal diet. Jail officials offered him a vegetarian diet, and the jail does not serve pork.

In Hachmeister v. Kline, 2013 U.S. Dist. LEXIS 8323 (D KS, Jan. 22, 2013), a Kansas federal district court held that a Muslim inmate's clam for damages of $100 million because of an alleged denial of 8 of his religious meals are completely conclusory and subject to dismissal unless plaintiff files an amended complaint alleging appropriate facts.

In McDaniel v. Fizer, 2013 U.S. Dist. LEXIS 9622 (D AZ, Jan. 24, 2013), an Arizona federal district court allowed a Muslim inmate to proceed with his complaint against certain of the defendants that authorities denied him a kosher diet for 11 months.

Suit Claims State Cannot Bar Religious Discrimination In Hiring At For-Profit Christian School

California's Fair Employment and Housing Act contains an exemption for non-profit religious associations or corporations. (Govt. Code Sec. 12940(j)(4)(B)). The Ventura County Star reported on Friday that two former teachers at a Christian school in Thousand Oaks, California have threatened to file a lawsuit challenging their firing. They were dismissed after they refused to provide Little Oaks School with a statement of faith and a reference from a pastor. The school is incorporated as a for-profit corporation, but is owned by the non-profit Calvary Chapel of Thousand Oaks. As a pre-emptive measure last Wednesday, the school filed a federal court lawsuit against the two teachers and their law firm attempting to enjoin them from filing a lawsuit in state court. The school argues that the California Fair Employment and Housing Act is unconstitutional insofar as it restricts a religious school's hiring practices, even when the school is incorporated as a for-profit institution.

Saturday, January 26, 2013

Court Orders Legion of Christ Documents Unsealed

In Dauray v. Estate of Mee, (RI Super. Ct., Jan. 23, 2013), a Rhode Island Superior Court permitted the AP, the New York Times, the Providence Journal and the Catholic Reporter to intervene to challenge a protective order that had been entered by a probate judge sealing documents that had been produced during discovery by the scandal-ridden Legion of Christ. Plaintiff, who attempted to claim that her aunt was improperly induced to leave the Legion $60 million in her will, also challenged the protective order. The court held:

The Moving Parties ... clearly ... have a right of access to the exhibits filed with the Motion for Summary Judgment because the Court relied on those documents as part of its adjudicating function.... Additionally ... the Moving Parties have a right of access to discovery motions and their related exhibits..... The public has a great interest in the openness of its courts.... [P]ublic scrutiny of the courts provides a check on the judiciary and ―diminishes the possibilities for injustice, incompetence, perjury and fraud.

AP reports on the lifting of the protective order and says that the Legion immediately filed a motion to block release of the documents. In an earlier decision, the court held that the niece lacked standing to bring the challenge to her aunt's will. (See prior posting.)

Friday, January 25, 2013

Milwaukee Archdiocese Approaching Insolvency In Reorganization

The Milwaukee Journal-Sentinel reported yesterday that the Catholic Archdiocese of Milwaukee is approaching administrative insolvency in its Chapter 11 bankruptcy reorganization. It has filed a motion asking the bankruptcy court to suspend most of its payments to attorneys and consultants. Otherwise, by April it will have a cash shortfall of $488,000. If it falls into administrative insolvency, the bankruptcy judge could appoint a trustee to manage the Archdiocese's day-to-day affairs, or could totally dismiss the case which would allow creditors to sue in state court. The Archdiocese will continue to use funds from its insurers to pay lawyers to oppose sex abuse claims.

Plea Deal Reached In Church Youth Group Mock Kidnapping Case

A church in Dauphin County, Pennsylvania and its pastor have reached a plea agreement with prosecutors in connection with charges growing out of a church youth group activity that went awry. The Harrisburg Patriot-News reported yesterday on the assault and false imprisonment charges that were brought against Glad Tidings Assembly of God of Lower Swatara Township and youth pastor Andrew Jordan who staged a mock kidnapping at a youth group meeting to dramatize the dangers faced by missionaries in some countries. A mother of a 14-year old girl who was frightened by the kidnapping complained to authorities. Under the plea agreement, the church will pay a $10,000 fine, and the youth pastor will avoid a criminal record through the accelerated rehabilitative disposition program. He will pay a $500 penalty, serve up to a year of probation and do 50 hours of community service. (See prior related posting.) [Thanks to Carl H. Silverman for the lead.]

Another Small Business Challenge To ACA Mandate Filed

Another for-profit closely-held business has joined the stream of those suing to challenge the Affordable Care Act contraceptive coverage mandate on the ground that it violates the religious beliefs of the company owners. The complaint (full text) in Gilardi v. U.S. Department of Health and Human Services, (D DC, filed 1/24/2013) challenges the application of the mandate to two related corporations, Freshway Foods and Fresway Logistics, Inc., which process, pack and ship fresh produce. One of the companies has 340 full-time employees, while the other has 55. The two individual plaintiffs, who each own 50% of the shares of each company, are Catholics who believe in the Catholic Church's teachings on abortion, sterilization and contraception. The complaint alleges RFRA, free exercise, free speech and Administrative Procedure Act violations. American Center for Law and Justice issued a press release announcing the filing of the lawsuit.

Contraceptive Mandate Challenge By Pennsylvania Diocese Dismissed On Ripeness Grounds

In Persico v. Sebelius, (WD PA, Jan. 22, 2013), a Pennsylvania federal district court dismissed on ripeness grounds a challenge to the Affordable Care Act's contraceptive mandate brought by the Catholic Diocese of Erie, Pennsylvania and two organizations affiliated with Pennsylvania Catholic Charities. As have most other courts that have dealt with challenges to the ACA mandate by religious non-profit employers, the court concluded:

Under the "safe harbor" provisions established by current regulations, Plaintiffs are protected from any potential enforcement action relative to the Mandate until at least January 1, 2014. In addition, the Defendants have repeatedly stated their intent to amend the Mandate, well before January 1, 2014, for the express purpose of accommodating the Plaintiffs' religiously motivated objections to the regulation.

Thursday, January 24, 2013

Fundamentalist Pastor Changes Name of Radio Show To Settle Infringement Suit

The Denver Post reported last week on the settlement of a lawsuit filed in New York federal district court last November by National Public Radio's Science Friday against fundamentalist Christian pastor Bob Enyart. The suit charged Enyart with trademark infringement and cybersquatting. Enyart used the name "Real Science Friday" for his radio show that was devoted to challenging mainstream science reporting on the age of the earth and evolution. The NPR program was concerned that people searching for it would be confused and go to Enyart's program. A confidential settlement was confirmed by a court order issued in December. As part of the settlement, Enyart changed the name of his broadcasts to Real Science Radio. [Thanks to John Kulesz for the lead.]

Catholic Hospital's Defense In Wrongful Death Case Apparently Contradicts Catholic Teachings

Denver Westward News and the Colorado Independent this week report on a wrongful death lawsuit against Catholic Health Initiatives that runs a hospital in Canon City, Colorado in which the hospital's defense seems to contradict teachings of the Catholic Church. Jeremy Stodghill sued the hospital for the death of his pregnant wife and the twins she was carrying. Lori Stodghill, who weighed over 400 pounds, died in the hospital's emergency room of a pulmonary embolism. Plaintiff argues that at least the hospital should have performed a cesarean section to save the twins. A trial court and the state court of appeals so far has accepted the hospital's defense is that the fetuses are not persons under the wrongful death statute. This is consistent with a long-standing interpretation by state courts that define "person" under the Wrongful Death Act to include only those born alive. Stodghill has appealed to the state Supreme Court.

Maryland High Court Says Apartment Building Housing Mormon Ordinance Workers Is A Tax Exempt Convent

In Green v. Church of Jesus Christ of Latter-Day Saints, (MD Ct. App., Jan. 23, 2013), the Maryland Court of Appeals, the state's highest court, ruled that an apartment complex owned by the Mormon Church used to house a revolving group of ordinance workers who perform religious ceremonies full-time for a two-year period at the Church’s Washington, D.C. Temple is entitled to a tax exemption as a "convent." The majority of these workers are retired married couples. The court interpreted "convent" as used in Md. Code 7-204 to mean "a community of people who live together, follow strict religious vows, and devote themselves full-time to religious work." The court held that the Tax Court's narrower definition accorded only with certain religious traditions such as the Catholic or Anglican churches.

Supreme Court Denies Cert. In Challenge To Grant For Restoring Bald Knob Cross

On Tuesday, the U.S. Supreme Court denied certiorari in Sherman v. Illinois, (Docket No. 12-621, cert. denied 1/22/2013). (Order list.) In the case, the U.S. 7th Circuit Court of Appeals held that activist and atheist Robert Sherman lacked taxpayer standing to challenge a $20,000 grant by the Illinois Department of Commerce and Economic Opportunity to Friends of the Cross as part of the cost of restoring the Bald Knob Cross, an Illinois tourist attraction. Nor could he force Friends of the Cross to return the funds to the state. (See prior posting.) The Southern Illinoisan reports on the Supreme Court's denial of review and the reactions of those involved. Sherman, in a posting on his website, said: "Today's refusal to take my case means that any Legislative body, whether it be Congress, a State Legislature or a local unit of government, can make blatantly unconstitutional grants to advance religion simply by naming an Executive Branch agency as the middleman in the transaction.... What a fraud against the taxpayers of this country."

Ex-Scientologists Sue Charging Church With Fraud and Deception

The Tampa Bay Times reports that a lawsuit was filed Wednesday in a Florida federal district court against the Church of Scientology by a California couple, Luis and Rocio Garcia, who charge 5 Scientoloty entities with fraud and deception. The Garcia's say they gave the church $340,000 for a planned "Super Power" building in Clearwater, Florida that after 14 years is still incomplete. They claim that Scientology purposely kept the building incomplete in order to raise more money for it. They also seek return of $69,000 the put on deposit for counseling and for meals and accommodations aboard Scientology's cruise ship. They also say they gave over $40,000 to the International Association of Scientologists in fundraising appeals for projects that did not exist or were misrepresented. Among other things, the Garcia's allege that Scientology made a video using actors to impersonate earthquake victims. The Garcia's, who no longer belong to Scientology, gave it $1.3 million during their 28 years as church members, and spent $300,000 on Scientology services. The lawsuit particularly focuses on the role of Scientology leader David Miscavige. A Scientology spokesperson said : "This frivolous suit is filed by the same group of apostates the [St. Petersburg] Times has been supporting for four years..." The St. Petersburg Times ran a long expose on the church in 2009. (See prior posting.)

Suit Challenges NY Exclusion of Religious Schools From Child Protection Requirements

Vos Iz Neias? reported yesterday on a federal lawsuit filed in a New York federal district court by a minor student enrolled in a Nassau county yeshiva and by her father against the New York State Assembly and its legislative leaders. The suit claims that students' equal protection and free exercise rights are violated by the state legislature' exclusion of religious schools from state child protection laws that are mandatory in public schools. Among the requirements at issue are schools educating students in abduction prevention, running fingerprint and criminal background checks on all employees and a requirement to report child abuse that takes place in an educational setting.

Wednesday, January 23, 2013

Mixed Reactions In Orthodox Jewish Community to 103-Year Sentence of Satmar For Sex Abuse

The Forward today reports on the reaction in the Orthodox Jewish Satmar community to the sentencing by a New York state trial judge of 54-year old Nechemya Weberman, a prominent member of the community, to 103 years in prison for sexually abusing a young Orthodox Jewish girl who was sent to the unlicensed therapist for counseling. Weber was found guilty on 59 counts related to the abuse that took place over a 3-year period beginning when the victim was 12. Some see the sentence as excessive and as likely to undercut efforts by Brooklyn's district attorney to get more cooperation from the Satmar community in investigations of sexual abuse complaints. (See prior related posting.) Others though say that the sentence shows victims that justice can be achieved through going to civil authorities.

Israel's Religious Parties Do Well In Election; But Coalition May Choose Between Them

In Israeli elections yesterday, religious parties emerged stronger than before. According to YNet News final tally, Shas and Habayit Hayehudi (Jewish Home) each won 11 seats, while United Torah Judaism won 7 seats in the 120-seat Knesset. In the outgoing Knesset, Shas had 11 seats, United Torah Judaism had 5 and Habayit Hayehudi had 3. In an interview last week reported in Haaretz, Habayit Hyehudi leader Naftali Bennett suggested that his party would like to be part of a Netanyahu coalition, and would be a stable, loyal and practical partner. Bennett says his party is centrist and will not be controlled by far-right rabbis. He explained:

We're not coming along to topple a right-wing government over every little thing. As long as no decision is made to hand over territory, we have no reason to leave the government."

Haaretz says that "Netanyahu will be forced to choose whether Habayit Hayehudi or the ultra-Orthodox parties will be members of his coalition."

Accommodating Store Manager's Sabbatarian Beliefs Would Impose Undue Hardship

In EEOC v. Rent-A-Center, Inc., (D DC, Jan. 18, 2013), the D.C. federal district court dismissed an EEOC lawsuit against a rent-to-own business finding that accommodating the religious beliefs of store manager Ferdinand Charles would impose an undue hardship on the company. Charles' religious beliefs prohibited him from working on Saturdays, the store's busiest day. The store is closed on Sundays and the company requires all managers to work on Saturdays. The court said that the EEOC was asking for the store to allow its most important employee to regularly be absent on the most important day of the week.

Kazakhstan Has Prosecuted 7 For Illegal Missionary Activity

According to a report yesterday by Forum 18, in Kazakhstan, seven people - four Jehovah's Witnesses, two Muslims and a Protestant – have been prosecuted for illegal missionary activity since August 2012. Three others expect to be prosecuted. The prosecutions under Article 375, Part 3 of the Code of Administrative Offences are punishable by fines of up to 100 Minimum Financial Indicators, an amount equal to several months average wages in Kazakhstan.

Court Refuses To Dismiss Challenge To 10 Commandments Monument

In Freedom From Religion Foundation, Inc. v. New Kensington-Arnold School District, 2013 U.S. Dist. LEXIS 8269 (WD PA, Jan. 22, 2013), a Pennsylvania federal district court denied defendants' motion to dismiss a challenge to the constitutionality of a 6-foot tall 10 Commandments monument that has stood for decades at the entrance to Valley High School. After discussing what it sees as four different Establishment Clause tests that have been announced by the Supreme Court, the court concluded that while perhaps it may later find plaintiffs' case untenable, "a fair reading of the Complaint at this stage of the proceedings leads to the conclusion that the factual allegations provided by Plaintiffs ... at least having stated a facially plausible claim." FFRF has links to all the pleadings in the case.

Cert. Denied In Challenge To Judge's Sentencing Remarks Invoking Religion

The U.S. Supreme Court yesterday denied certiorari in Deyton v. Keller (Docket No. 12-6230, cert. denied 1/22/2013) (Order List). In the case, the U.S. 4th Circuit Court of Appeals denied a habeas corpus petition from 3 robbers who were sentenced to ten consecutive 64 to 86 month terms for their armed robbery of a church during Sunday services. Petitioners unsuccessfully claimed that the judge's remarks during sentencing impermissibly referenced religious beliefs. (See prior posting.) The Christian Science Monitor reports on the Supreme Court's denial of review.

Tuesday, January 22, 2013

Court Documents Show Cover-Up of Abusive Priests By LA Archdiocese

The Los Angeles Times and New York Times reported yesterday that documents filed this month by the Catholic Archdiocese of Los Angeles in a civil action disclose more clearly than before that now-retired Cardinal Roger Mahony and his advisor on sex abuse cases, Msgr. Thomas J. Curry, worked to keep evidence of child molestation by three priests from law enforcement officials. According to the LA Times:

Fifteen years before the clergy sex abuse scandal came to light, Archbishop Roger M. Mahony and a top advisor plotted to conceal child molestation by priests from law enforcement, including keeping them out of California to avoid prosecution, according to internal Catholic church records released Monday....

[M]emos written in 1986 and 1987 by Mahony and Msgr. Thomas J. Curry ... offer the strongest evidence yet of a concerted effort by officials in the nation's largest Catholic diocese to shield abusers from police. The newly released records, which the archdiocese fought for years to keep secret, reveal in church leaders' own words a desire to keep authorities from discovering that children were being molested.

In the confidential letters, filed this month as evidence in a civil court case, Curry proposed strategies to prevent police from investigating three priests who had admitted to church officials that they abused young boys. Curry suggested to Mahony that they prevent them from seeing therapists who might alert authorities and that they give the priests out-of-state assignments to avoid criminal investigators.

[Thanks to Scott Mange for the lead.]

Burger King Franchise Settles Religious Accommodation Lawsuit

Courthouse News Service reports that the parties filed a joint motion for entry of a consent decree (full text) on Jan. 16 in EEOC v. Fries Restaurant Management LLC, (ND TX). In the suit, Ashanti McShan, a Pentecostal woman who was hired as a cashier at a Burger King franchise, alleged she was fired after defendant refused to accommodate her religious beliefs and allow her to wear a skirt instead of uniform pants. In the settlement, the restaurant agreed to pay McShan $5,000 in back wages and $20,000 for mental anguish and other damages. The company also agreed to post notices of its non-discrimination policy and conduct training sessions for managers.

Today Is 40th Anniversary of Roe v. Wade; Religious Attitudes and Positions On Repeal Vary

Today is the 40th anniversary of the U.S. Supreme Court's decision in Roe v. Wade. Last week, the Pew Research Center released a survey report titled Roe v. Wade at 40: Most Oppose Overturning Abortion Decision. The survey found:

White evangelical Protestants are the only major religious group in which a majority (54%) favors completely overturning the Roe v. Wade decision. Large percentages of white mainline Protestants (76%), Black Protestants (65%) and white Catholics (63%) say the ruling should not be overturned. Fully 82% of the religiously unaffiliated oppose overturning Roe v. Wade.

Half of Americans who attend religious services at least weekly favor completely overturning the Roe v. Wade decision, compared with just 17% of those who attend less often.

Pew Forum has also compiled a guide to Religious Groups' Official Positions on Abortion, with links to material on the views of 17 major religious communities.

Monday, January 21, 2013

Georgia's Education Contribution Tax Credit Becomes Controversial Because of Anti-Gay Policies of Schools

The New York Times reported yesterday that the state of Georgia's popular tax credit program for contributions to private school scholarship programs has become controversial because more than 115 religiously sponsored schools that benefit from the program have explicit bans on attendance by gay, lesbian and bisexual students. A 17-page report (full text) issued this month by the Southern Education Foundation documents the problem. The issue is likely to gain attention as State Representative Earl Ehrhart plans to propose an increase in the total amount allocated for tax credits under the program. [Thanks to Scott Mange for the lead.]

Lots of Prayer Services Surround Inauguration Today-- Diversity and Controversy

Yesterday, the day of President Obama's official swearing-in, the Obama family attended Sunday services at the historic Metropolitan African Methodist Episcopal Church in Washington. (Huffington Post). Today's formal Presidential inauguration events will begin with the President attending a worship service at St. John's Episcopal Church across Lafayette Square from the White House. An inauguration day prayer service attended by the President prior to his swearing-in has been a tradition since the time of Franklin Roosevelt. On Tuesday, the President, Vice-President and their spouses will attend the 57th Presidential Inaugural Prayer Service, an interfaith service at Washington National Cathedral. (CNN).

Meanwhile today, two unofficial prayer breakfasts are planned in Washington. (Toledo Blade.) The one sponsored by religious conservatives at the Washington Marriott Wardman Park hotel, the Presidential Inaugural Prayer Breakfast, has become so controversial that the Senate Chaplain, Rev. Barry Black, has withdrawn. However the House Chaplain Rev. Patrick J. Conroy will attend. According to Washington Whispers, the breakfast: "features special guests Pat Robertson, a televangelist whose commentary has managed to offend gays, Haitians and feminists alike, Jonathan Cahn, a preacher who believes some of Obama's actions are apocalyptic, and Joseph Farah, the editor of WorldNetDaily who has long pushed the birther conspiracy theories about the president's citizenship." A second prayer breakfast, sponsored by Ask for America, will be held at the Willard Intercontinental Hotel. It will feature speakers more in line with President Obama's outlook, including Ambassador Suzan Johnson Cook, International Ambassador for Religious Freedom; Rev. Luis Cortes, Jr. President of Esperanza; Dr. Meadowlark Lemon, Mr. Basketball of the Harlem Globetotters; Brian Roquemore, America's All Stars Youth Organization; and Bishop Roderick Caeser, Bethel Gospel Tabernacle, Queens NY.

All of this of course is in addition to the previously reported switch in pastors for the benediction at the formal Inauguration Ceremony.

Sunday, January 20, 2013

Recent Prisoner Free Exercise Cases

In Jordan v. Fuller, (10th Cir., Jan. 9, 2013), the 10th Circuit affirmed the dismissal of a claim by an inmate claiming to be affiliated with a religion known as the Ever Increasing Faith alleging violation of his rights when he was refused a non-meat diet.

In Medina v. Youngblood, 2013 U.S. Dist. LEXIS 5481 (ED CA, Jan. 14, 2013), a California federal magistrate judge permitted a Messianic Jewish inmate to pursue his claim for a kosher diet, but rejected his complaint he was denied religious literature.

In Lewis v. Skolnik, 2013 U.S. Dist. LEXIS 6618 (D NV, Jan. 16, 2013), a Nevada federal district court allowed a Hebrew Israelite inmate to proceed with his equal protection challenge to a prison rule that limited kosher meals to inmates who obtained outside verification that they were Orthodox or Conservative Jews. Certain other claims were dismissed.

In Cunningham v. Womack, 2013 U.S. Dist. LEXIS 6286 (WD KY, Jan. 15, 2013), a Kentucky federal district court dismissed a pre-trial detainee's complaint, including a complaint that on one occasion he was told to leave the worship service he had attended numerous times before.

In Hewitt v. Morris, 2013 U.S. Dist. LEXIS 6313 (D SC, Jan. 15, 2013), a South Carolina federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 184677, Dec. 20, 2012) and awarded nominal damages of $1 plus costs to an inmate who complained that he was denied Vaisnavism (Krishna Consciousness) services and religious materials because the Department of Corrections refused to recognize Krishna Consciousness as a religion.

In Quinn v. Knab, 2013 U.S. Dist. LEXIS 7804 (SD OH, Jan. 18, 2013), an Ohio federal magistrate judge recommended denying defendants' claim that a Christian Identity inmate had not exhausted his administrative remedies in attempting to obtain accommodation of dietary and hair length needs so he could take a Nazarite vow.

Appeals Court Upholds Rabbi's Firing With Differing Views On Ministerial Exception

In Ballaban v. Bloomington Jewish Community, (IN App., Jan. 17, 2013), a 3-judge Indiana appellate court, with each judge writing a separate opinion, rejected a rabbi's claim that he had been wrongfully dismissed as congregational rabbi before the end of his 3-year contract. The congregation claimed that the firing was the result of complaints about the rabbi's angry outbursts and hostile behavior and his placing the tax exempt status of the synagogue at risk by accepting a donation intended for a single recipient and assuring the donor it would be tax deductible. Rabbi Steven Ballaban claimed he was fired in retaliation for his reporting to authorities possible improper conduct by a teacher accused of massaging children under their clothes. The trial court held that while it is likely that Indiana law bars discharge of a member of the clergy for reporting child abuse, plaintiff failed to show that is why he was fired. On appeal, the congregation urged that the trial court was correct because the ministerial exception applies to require dismissal of the suit. All 3 appeals court judges would affirm the trial court's dismissal of Ballaban's suit, but each on different reasoning.

Judge Brown held that the court need not decide whether the ministerial exception applies when a minister's employment was terminated for reporting child abuse or neglect since the ministerial exception does apply to firings for the other reasons put forward by the congregation, and on appeal Ballaban (appearing pro se) does not challenge the termination of his employment on these grounds. Judge Bailey concurred, arguing:

We should not, and cannot, be drawn into deciding whether an individual engaged in conduct becoming a spiritual leader. Accordingly, the ministerial exception applies and our discussion should proceed no further, despite Rabbi Ballaban’s vigorous efforts to recast the dispute as purely secular conduct involving a statutory duty to report.

Judge Vaidik concurred, saying that: "the ministerial exception does not allow a congregation to fire a spiritual leader who refuses to commit a criminal offense... [However] the designated evidence does not reveal that the reason for Ballaban’s termination was his child-abuse reporting."

NYT: Same-Sex Married Couples Face Continuing Unequal Treatment In Military

A front-page article in today's New York Times explores the continuing unequal treatment of married same-sex couples in the military. Despite the repeal of Don't Ask, Don't Tell, the Defense of Marriage Act still bars recognition of same-sex marriages for purposes of various benefits. There is also less formal discrimination. At a military retreat at Ft. Bragg designed to help couples cope with the pressures of deployments and relocations, a same-sex couple was asked to leave because they were making others uncomfortable. The retreat was organized by military chaplains, and the lesbian couple had been told in advance that they were welcome. The chaplains now say that was erroneous advice.

District Court Extends Bivens To Damage Actions For Free Exercise Violations

In an important decision last week, a New York federal district court judge extended the Bivens damage remedy for violation of constitutional rights to deprivations of First Amendment free exercise rights. Turkmen v. Ashcroft, (ED NY, Jan. 15, 2013), grew out of federal government investigative actions in the wake of the 9/11 attacks. Arab and Muslim non-citizens who had violated the immigration laws were arrested and placed in harsh confinement conditions for several months to encourage their cooperation. According to the court, as part of the operation, officers at the Metropolitan Detention Center and the Passaic Jail interfered with Muslim detainees' ability to observe their religion:

[W]hen the Detainees requested copies of the Koran, officers delayed for weeks or months before providing them; the MDC and the Passaic Jail failed to provide food that conformed to the Halal diet, despite the Detainees’ requests for such food; the MDC had no clock visible to the MDC Detainees, and officers regularly refused to tell them the time of day or the date so they could conform to daily Islam prayer requirements and observe Ramadan; and officers constantly interrupted the Detainees’ prayers by banging on their cell doors, yelling and making noise, screaming derogatory anti-Muslim comments, videotaping them, handing out hygiene supplies, and/or telling them to “shut the fuck up” while they were trying to pray.

The court held that even though the Supreme Court in the Iqbal case expressed skepticism on whether Bivens should be available for free exercise violations, it would extend Bivens because otherwise there is no remedy available to plaintiffs for the free exercise violations:

[P]laintiffs are not complaining simply about facially neutral BOP policies that substantially burden their free exercise of religion. If they were, I might conclude that their “full access to remedial mechanisms established by the BOP, including suits in federal court for injunctive relief . . . and grievances filed through BOP’s Administrative Remedy Program ... provides sufficiently meaningful redress to preclude the implication of a Bivens damages remedy. But the plaintiffs allege a series of acts that were directed only at them (and the class of detainees they seek to represent) with the specific intent to deny them the right to practice their religion... The precise purpose of the Bivens damages remedy is to deter individual officers from engaging in such unconstitutional conduct.

The court also allowed plaintiffs to move forward with their Bivens equal protection claim against MDC officials charging implementation of policies specifically targeting Arabs and Muslims.

The Center for Constitutional Rights has background and links to all the primary source documents in the long running case that was filed as a class action.

Saturday, January 19, 2013

Pakistan's Ambassador To U.S. Faces Blasphemy Investigation At Home

According to reports this week from the Pakistan News Service and from Dawn, a two-judge panel of Pakistan's Supreme Court has ordered the Multan City Police Officer to investigate a complaint that Pakistan's ambassador to the United States, Sherry Rehman, committed blasphemy in November 2010 in an interview on a talk show on a private TV channel. Presumably the interview related to Rehman's attempt at that time to get the National Assembly to eliminate the death penalty for blasphemy. Lower courts had refused to register a case against Rehman. According to NBC News, the complaint against Rehman was filed by Muhammad Faheem Ahkter Gill, a 31-year-old owner of a marble business in the city of Multa who said he felt it was his responsibility to do something about the remarks by Rehman which he felt were derogatory to the Prophet Muhammad.

Canadian Law Deans Oppose New Christian Law School Because of Its Bar On Same-Sex Relationships

In Canada last June, Trinity Western University, a Christian liberal arts university in British Columbia, proposed to start a new law school. This week, the Vancouver Sun and the National Post report that deans of other Canadian law schools are opposing the proposal because of its Biblical-based "community covenant" which requires staff, faculty and students to refrain from homosexual relationships (as well as gossip, lying, smoking and consuming alcohol). In a letter to the Federation of Canadian Law Societies from the Council of Canadian Law Deans written last November, but only made public recently, the deans say:

This is a matter of great concern for all members. … Discrimination on the basis of sexual orientation is unlawful in Canada and fundamentally at odds with the core values of all Canadian law schools.

The deans also question whether true academic freedom exists at the university because of the community covenant. However supporters of the university say that the deans have an anti-religious bias. In 2001, the Canadian Supreme Court in Trinity Western University v. British Columbia College of Teachers, upheld the right of Trinity Western's teacher training program to apply the community covenant to bar homosexual relationships.

Friday, January 18, 2013

Tax Court Rejects Free Exercise and Equal Protection Challenge To Exclusion of Navajo Clan Relatives As Children

In Begay v. Commissioner, (USTC, Jan. 16, 2013), the U.S. Tax Court held that the definition of dependents in Sec. 152 of the Internal Revenue Code does not violate the free exercise or equal protection rights of a taxpayer who is a tribal elder of the Navajo Indian Nation. At issue was the government's refusal to allow petitioner to treat a "clan relative" as a "qualifying child" in order to obtain head of household filing status, the earned income credit, and child tax credit. In Navajo culture and tradition, children are considered children of everyone in their clan. Taxpayer argued that the exclusion from the section 152(c)(2) of obligatory clan-based relationships violates her free exercise and equal protection rights.

4th Circuit: Public Schools Not Required To Provide Rehabilitation Act Services To Students In Private Religious Schools

In D.L. v. Baltimore City Board of School Commissioners, (4th Cir., Jan. 16, 2013), the U.S. 4th Circuit Court of Appeals held that Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) does not require the Baltimore city school board to provide educational services to students enrolled in private religious schools. Here the parents of a student in a Jewish school sought special services for their 8th grader who suffered from ADHD and anxiety. The court also concluded that requiring a student to enroll in public school in order to access Section 504 services does not unconstitutionally infringe free exercise rights or parents' right to choose a private religious school for their child. It said:

The right to a religious education does not extend to a right to demand that public schools accommodate Appellants’ educational preferences.... The school board need not serve up its publicly funded services like a buffet from which Appellants can pick and choose.

USCIRF Calls on Iran To Release American Pastor Held On National Security Charges

The U.S. Commission on International Religious Freedom issued a press release on Wednesday calling for the government of Iran to release Iranian-American pastor Saeed Abedeni who was arrested in September for his involvement with the underground house church movement. According to USCIRF:

The national security charges leveled against Mr. Abedini are bogus and are a typical tactic by the Iranian government to masquerade the real reason for the charges: to suppress religious belief and activity of which the Iranian government does not approve.

Abedini apparently is scheduled to come before Revolutionary Court judge Pir-Abbassi next week. The judge is known for swift trials and harsh penalties.

Cemetery Trust Assets Included In Bankruptcy Estate of Milwaukee Archdiocese

In Listecki v. Official Committee of Unsecured Creditors, (ED WI Bkrptcy., Jan. 17, 2013), a Wisconsin federal bankruptcy court rejected attempts by the Archbishop of Milwaukee in the Archdiocese's Chapter 11 reorganization case to shield assets of a Catholic Cemetery Perpetual Care Trust from creditors. The Trust argued that including its assets in the bankruptcy estate would violate the Religious Freedom Restoration Act and the free exercise clause of the 1st Amendment. The court disagreed, concluding that RFRA only applies against the government, not in a suit against the creditors' committee which not a government actor and is not acting under color of law. The court also concluded that RFRA may not be used to invalidate a state law, such as the Wisconsin fraudulent transfer law; and neutral, generally applicable provisions of the Bankruptcy Code do not violate the 1st Amendment's free exercise clause.

Meanwhile, the Milwaukee Journal-Sentinel reported yesterday that in the Archdiocese's bankruptcy proceedings, lawyers for sex-abuse victims are now asking the court to make public all records involving credibly accused priests, as well as their depositions and other documents. The request comes after a controversy over the Archdiocese's failure to provide the Fond du Lac police department information on an accused and defrocked priest.

Catholic Schools In Indonesian Municipality Agree To Give Koranic Education To Muslim Students

The Jakarta Post reported yesterday that six Catholic schools in the Indonesian municipality of Bitar, East Java, have agreed to provide offsite Islamic lessons to their Catholic students in compliance with Mayoral Decree No. 8/2012 issued last year requiring all Muslim students to be able to read and write Koranic verses. City officials had threatened to close down the six schools if they did not comply. Indonesia's education law provides that every student is entitled to receive religious education imparted by an educator of the his or her religion, and that the government must furnish such teachers if a private school cannot do so. Apparently this provision has not been enforced against Islamic schools that have Buddhist, Christian or Hindu students enrolled.

Another Missouri Town Enacts Funeral Picketing Ban

Citing an 8th Circuit en banc decision last October upholding another Missouri town's funeral picketing ban, Creve Coeur, Missouri has now passed its own ordnance aimed at picketing by the Kansas-based Westboro Baptist Church. The Creve Coeur Patch reported that the ordinance, passed last Monday, bans protests knowingly taking place within 300 feet of "any residence, cemetery, funeral home, church, synagogue, or other establishment or location during or within one (1) hour before or one (1) hour after any actual funeral or burial service at that place."

Thursday, January 17, 2013

Contempt Sanctions Imposed On Russian Government For Failure To Return Expropriated Jewish Books

In Agudas Chasidei Chabad of the United States v. Russian Federation, (D DC, Jan. 16, 2013), the D.C. federal district court held the Russian government and three of its agencies in civil contempt for not complying with a 2010 default judgement ordering it to return two expropriated collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States. Despite objections by the United States government, the court imposed civil sanctions of $50,000 per day until defendants comply with the court's order. Blog of the Legal Times reports on the decision.

UPDATE: According to Interfax (Jan. 17), the Russian presidential representative for international cultural cooperation Mikhail Shvydkoy does not understand the court's contempt findings. He said:

Russia earlier honored all agreements on this issue. The problem was discussed within the Gore-Chernomyrdin commission's framework, and we reached quite a reasonable compromise with the American side then. We set up the Center of Oriental Literature at the Russian State Library, where, in particular, the Schneerson collection is stored, and it is accessible to any citizens, including Russian and others. A prayer room was also set up there, where religious cults can be observed. I had assumed the issue was settled.

He added: "Transferring books from the Russian State Library violates the law, it is prohibited."

Study On Texas Public School Bible Courses Released

Yesterday the Texas Freedom Network released a study titled Reading, Writing & Religion II: Texas Public School Bible Courses in 2011-12. Key findings are:

Many Bible course teachers lack the proper training required by the Legislature. Moreover, curriculum standards adopted by the State Board of Education are far too broad to help school districts create academically sound and legally appropriate courses. Consequently, many courses are not academically rigorous and include numerous errors, distortions and other problems.

Many Bible courses reflect the religious beliefs of the teachers and sectarian instructional materials they use in their classrooms. In every course in which religious bias is present, instruction reflects a Protestant -- most often a conservative Protestant -- perspective, including a literal interpretation of the Bible.

Many courses teach students to interpret the Bible and even Judaism through a distinctly Christian lens. Anti-Jewish bias -- sometimes intentional but often not -- is not uncommon.

A number of courses and their instructional materials incorporate pseudo-scholarship, including claims that the Bible provides scientific proof of a 6,000-year-old Earth (young Earth creationism) and that the United States was founded as a Christian nation based on biblical Christian principles. At least one district's Bible course includes materials suggesting that the origins of racial diversity among humans today can be traced back to a curse placed on Noah's son in the biblical story of the flood. Such claims have long been a foundational component of some forms of racism.

Despite the state's failure to implement HB 1287 effectively, a number of school districts did succeed in offering Bible courses that largely comply with legal and constitutional requirements, are academically serious and avoid many of the serious problems noted in most other districts. These successful courses can be found in urban, suburban and rural districts.

1st Circuit: Establishment Clause Challenge To HHS Contract With Bishops Is Moot

In American Civil Liberties Union of Massachusetts v. United States Conference of Catholic Bishops, (1st Cir., Jan. 15, 2013), the U.S. 1st Circuit Court of Appeals remanded with instructions to dismiss as moot a suit brought in 2009 alleging that the U.S. Department of Health and Human Services violated the Establishment Clause when it contracted with the U.S. Conference of Catholic Bishops to provide services under the Trafficking Victims Protection Act. The appeals court held that the expiration of the contract with USCCB rendered the challenge moot, rejecting the district court's conclusion that the case fell under the "voluntary cessation" exception to the mootness doctrine. The 1st Circuit also held that the exception for conduct "capable of repetition, yet evading review" does not apply. [Thanks to Alliance Alert for the lead.]

Wednesday, January 16, 2013

Today Is Religious Freedom Day

Today is Religious Freedom Day, the anniversary of the passage of the Virginia Statute for Religious Freedom in 1786. Each year the President issues a proclamation marking the day. So far this year's proclamation has not been posted on the White House website. Presumably it will appear later today and this post will be updated with a link to it.

UPDATE: Here is the Presidential Proclamation-- Religious Freedom Day 2013.

New Pick To Deliver Inauguration Benediction Reported

CNN reports that Rev. Luis León, pastor of St. John's Episcopal Church, located across Lafayette Park from the White House, has been chosen to deliver the benediction at President Obama's inauguration next Monday. León replaces evangelical pastor Louie Giglio who withdrew after an anti-gay sermon he preached in the 1990's surfaced. (See prior posting.) León, a naturalized citizen, was born in Cuba and came to the United States at age 11.

Polish Court Upholds Cross Hanging In Parliament

According to a report yesterday from Polskie Radio, a trial court in Poland has ruled against 7 members of Parliament from the anti-clerical Palikot's Movement party who sought to have a cross that hangs in the debating chamber of Parliament removed. Plaintiffs claimed that the presence of the cross favored one religion over another. However, Judge Alicja Fronczyk held that "the presence of a religious symbol in a public place, such as parliament, does not violate freedom of conscience." Plaintiffs intend to appeal.

Another Small Business Challenge To Federal Contraceptive Coverage Mandate Filed

Yet another lawsuit by a for-profit small business challenging the Affordable Care Act contraceptive coverage mandate was filed Monday-- this time by a Missouri-based plumbing products corporation and its Catholic owners. The complaint (full text) in Sioux Chief Mfg. Co., Inc. v . Sebelius, (WD MO, filed 1/14/2013), contends that the mandate violates plaintiffs' rights under the 1st and 5th Amendments, the Religious Freedom Restoration Act, and the Administrative Procedure Act. Alliance Defending Freedom issued a press release announcing the filing of the case.

TRO Issued In Small Business Conscience Challenge To State Contraceptive Mandate

In recent months there has been an outpouring of religious liberty concerns over the federal contraceptive coverage mandate. However, as pointed out by The Catholic Review, 28 states have their own contraceptive coverage mandates, albeit with religious employer exemptions of various sorts, and often with exclusions for self-insured ERISA plans. Courts in New York and California have upheld state mandates over objections of church agencies, and the U.S. Supreme Court refused review in both cases. Now a new challenge to a state mandate-- this time in Illinois-- has met initial success in a case brought by a Catholic-owned small business. Triune Health Group, Inc. has already won a preliminary injunction against the federal mandate. (See prior posting.) Now, in Yep v. Illinois Department of Insurance, (Dupage Co. IL Cir. Ct., Jan. 15, 2013), an Illinois state trial court has issued a temporary restraining order against the Illinois state insurance mandate (215 ILCS 5/356z.4) in a suit by Triune and its Catholic owners who claim that the state mandate violates the rights guaranteed to them by the Illinois Religious Freedom Restoration Act, the Illinois Health Care Right of Conscience Act and the Illinois state constitution. The court concluded that "Plaintiffs have raised a fair question as to the likelihood of success on their claim that the contraception mandate imposes a substantial burden on their religious exercise." Thomas More Society issued a press release announcing the decision.

Zoning Challenge Fails Under RLUIPA But Succeeds On Other Grounds

In New England Prayer Center, Inc. v. Planning & Zoning Commission of the Town of Easton, 2012 Conn. Super. LEXIS 3063 (CT Super, Dec. 13, 2012), the New England Prayer Center sought a special permit so it could build a house of worship on land it leased from the town. The Zoning and Planning Commission granted the permit only with a number of conditions attached. Plaintiff challenged 5 of the conditions. A Connecticut state trial court held that plaintiff had not shown RLUIPA violations, but the court sustained on other grounds plaintiff's objections to the conditions placed on it. The trial court speculated that plaintiff had purposely made little effort to focus on RLUIPA claims in order to later assert those claims in federal court, as permitted by 42 USC 2000cc-2(c) where there has not been a full and fair adjudication of the claim in state court.