Recent Prisoner Free Exercise Cases

In Shabazz v. Virginia Department of Corrections, 2013 U.S. Dist. LEXIS 36317  (ED VA, March 15, 2013), a Virginia federal district court dismissed complaints by a Nation of Islam inmate that he is not permitted to purchase NOI religious non-music CDs directly from The Final Call, but must petition to have them added to the catalog of the prison's exclusive vendor.

In Loccenitt v. City of New York, 2013 U.S. Dist. LEXIS 36330 (SD NY, March 15, 2013), a Muslim inmate sued complaining of a lack of Halal meals and inability of inmates in the special housing unit to attend Friday Jummah services.A New York federal district court permitted plaintiff to move ahead on the Jummah services claim against certain defendants and held that an amended complaint could be filed expanding on the Halal meal claim.

In Carter v. Washington Department of Corrections, 2013 U.S. Dist. LEXIS 36365 (WD WA, March 15, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 36367, Feb. 27, 2013) and dismissed a Muslim inmate's complaint about the 2010 Ramadan meal policy.

In Smith v. Riley, 2013 U.S. Dist. LEXIS 35273 (ND AL, March 14, 2013), an Alabama federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 36439, Feb. 7, 2013) and dismissed an Odinist inmate's complaint that he was denied various religious items, some of his books were confiscated and he was discriminated against. The court also dismissed his challenge to the prison's faith-based honor dorms.

In Phillips v. Lecuyer, 2013 U.S. Dist. LEXIS 35267 (ND NY, March 14, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 36452, Feb. 19, 2013), and held that an SHU inmate's threat to facility security justified the refusal to allow him to participate in Native American religious ceremonies with the facility's general population.

In Shapiro v. Community First Services, 2013 U.S. Dist. LEXIS 37137 (ED NY, March 18, 2013), a New York federal district court refused to dismiss a Quaker inmate's suit against employees of a halfway house complaining that during his 3-week residence, the 3-hour weekly pass he was given was not long enough to allow him to travel to and from, and attend, his religious services.

In Jean-Laurent v. Lawrence, 2013 U.S. Dist. LEXIS 38004 (SD NY, March 19, 2013), a New York federal district court dismissed on qualified immunity grounds a claim for damages by a Muslim inmate who claimed his religious beliefs were infringed when he was required to stand in his underwear while his belongings were searched by male and female officers, and was required to proceed to the shower fully in the nude with a female officer less than 15 feet away.

In French v. Maryland Division of Corrections, 2013 U.S. Dist. LEXIS 37862 (D MD, March 15, 2013), a Maryland federal district court dismissed complaints by two Muslim inmates regarding accommodation of Ramadan fasting and failure to provide meals expressly labeled Halal.

In Blanks v. Cate, 2013 U.S. Dist. LEXIS 11233 (ED CA, March 25, 2013), a California federal magistrate judge, in an amended opinion after reconsideration in light of an intervening 9th Circuit decision, again recommended dismissing complaints that authorities failed to procure a Rastafarian chaplain, did not provide a separate outside place of Rastafarian worship, refused to allow possession of religious items and failed to approve a Rastafarian religious vendor.

In Evans v. Jabe, 2013 U.S. Dist. LEXIS 38745 (ED VA, March 18, 2013), a Virginia federal district court dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint about authorities cutting short weekly Jummah services. However the court refused to dismiss at this time plaintiff's complaint that an institutional lock down interfered with meals to allow his Ramadan fasting.

In Stiles v. Shick, 2013 U.S. Dist. LEXIS 40301 (WD NC, March 22, 2013), a North Carolina federal district court dismissed an inmate's claim that prison officials should have purchased an Indian Bible for him.

In Cryer v. Spencer, 2013 U.S. Dist. LEXIS 39447 (D MA, March 21, 2013), a Massachusetts federal district court allowed an inmate to move ahead with claims for declaratory and injunctive relief, but not for damages, in his suit claiming denial of access to a cassette player and Native American audiotapes, and to a Native American clergy member or volunteer.

In Cunningham v. Fayette County Detention Center, (KY App., March 22, 2013), a Kentucky appeals court dismissed a claim for declaratory relief by a Muslim pre-trial detainee who was precluded from participating in group prayer during Ramadan. The court held that the claim is moot because plaintiff is no longer at the detention center involved.

Teachers May Proceed With Free Exercise Challenge To Board's Ending of Sick Leave Use For Religious Holidays

In Berkowitz v. East Ramapo Central School District, (SD NY, March 21, 2013), Jewish teachers and nurses sued after school officials refused to abide by provisions in collective bargaining agreements allowing teachers and school nurses to use paid sick leave days for observance of religious holidays. The school board's change in policy was taken in response to New York state appeals court case holding that compliance with a somewhat different religious observance policy was a violation of the Establishment Clause. In the suit challenging the East Ramapo policy change, a New York federal district court found that the school board's actions did not violate the Establishment Clause or the equal protection clause. However the court held that plaintiffs may proceed with their 1st Amendment and New York state Constitution free exercise challenges.  The court concluded that the collective bargaining agreement provisions here are an appropriate accommodation of religious exercise and do not violate the Establishment Clause.

Another ACA Mandate Challenge By Catholic Non-Profits Dismissed On Ripeness Grounds

In Franciscan University of Steubenville v. Sebelius, (SD OH, March 22. 2013), an Ohio federal district court, following the lead of 15 other federal courts, dismissed for lack of ripeness a challenge to the Affordable Care Act contraceptive coverage mandate in a suit brought by two Catholic non-profits.  Plaintiffs were Franciscan University and the Michigan Catholic Conference. The court concluded:

The “safe harbor” provision, which protects Plaintiffs from enforcement presently, coupled with ongoing process to amend the ACA regulations to address Plaintiffs’ concerns, which is substantiated by the recently published NPRM, makes the harm Plaintiffs allege unlikely to ever occur.

AP reports on the decision.

Malta's New Prime Minister Seeking To Amend Concordat With Vatican On Marriages

Earlier this month, in Malta the Labour Party for the first time in 15 years won control of the government. The new Prime Minister is Joseph Muscat. (Deutsche Welle). The Times of Malta reports today that Muscat will be seeking talks with the Vatican to revise Malta's 1993 Concordat with the Vatican on "The Recognition of Civil Effects to Canonical Marriages and to the Decisions of the Ecclesiastical Authorities and Tribunals About the Same Marriages" (full text).  The prime minister is proposing reforms that will make the civil courts supreme in regard to marriage law. (Malta has 10 separate Concordats with the Vatican on various topics.) Malta's Archbishop Paul Cremona says that the Church is available for such talks. The Prime Minister said that the government also has a mandate to legislate civil unions.

Kentucky Governor Vetoes "Flawed" Religious Freedom Bill

Earlier this month the Kentucky legislature passed HB 279, a religious freedom bill, that provided:

Government shall not substantially burden a person's freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A "burden" shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.

On Friday Gov. Steve Beshear vetoed the bill. In his veto message (full text), he called the bill "flawed," saying in part:

as written, the measure is itself vague, and thereby creates impermissible uncertainty for businesses, individuals and governmental agencies as to the boundaries of existing laws.

In a press release, the Governor's office expanded on the reasons for the veto, objecting to the heightened standard of "clear and convincing proof" and the unclear definition of "burden," both of which make the law different from the federal Religious Freedom Restoration Act. The press release listed dozens of organizations and public officials who supported the governor's veto. Their concerns included possible weakening of local civil rights laws; negative impact on enforcement of drug laws; financial burdens on local governments; and possible withholding of needed medical care or use of religion as a justification for abuse. The governor said he is willing to work with supporters to develop a bill that avoids the unintended consequences of this version.

According to the Richmond Register, the state Senate is prepared to vote to override the governor's veto. However it is less clear whether the House will do so.

Appeals Court Says Church of Cognitive Therapy Is Not A "Religion"

In State of Idaho v. Cordingley, (ID App., March 21, 2013), an Idaho appeals court rejected defendant's claim that possession of marijuana and paraphernalia charges against him should be dropped on religious freedom grounds. Defendant claimed that he was the founder of the Church of Cognitive Therapy (COCT) which established the use of marijuana as a "sacrament." The appeals court agreed with the lower court's ruling that COCT is not a "religion" for purposes of Idaho's Free Exercise of Religion Protected Act. Instead COCT's purpose is merely "to facilitate the use of marijuana, as an accompaniment to a member’s other religious (or nonreligious) beliefs." In reaching that conclusion, the court adopted a multi-factor test for defining religion that had been set out by the 10th Circuit.

UPDATE: A petition for review has been filed with the Idaho Supreme Court. It is available at 2013 Ida. LEXIS 124 (March 21, 2013).

Jehovah's Witnesses In Puerto Rico Get Access To Locked Neighborhoods

A Puerto Rico federal district court, in a case on remand from the 1st Circuit (see prior posting), has ordered neighborhood homeowners' associations (urbanizations) that allow entry into the neighborhood only through an unmanned locked gate operated by a key, access code or beeper to provide Jehovah's Witnesses who wish to proselytize in the neighborhood access equal to that of residents.  In Watchtower Bible Tract Society of New York, Inc.v. Rodriguez, (D PR, March 21, 2013), the court said that this remedy prevents Jehovah's Witnesses' free exercise and expression rights from being limited by any time, place or manner restrictions. The court refused to decide at this time which urbanizations are legitimately using unmanned gates, saying that municipalities should first make that determination. Politics 365 reports on the decision.

Report Claims Religious Liberty Arguments Are Being Used To Stifle Civil Rights

Political Research Associates, an organization devoted to challenging the right and advancing social justice, this week issued a report written by Jay Michaelson titled Redefining Religious Liberty-- The Covert Campaign Against Civil Rights. The Report's Executive Summary reads in part:

A highly-active, well-funded network of conservative Roman Catholic intellectuals and evangelicals are waging a vigorous challenge to LGBTQ and reproductive rights by charging that both threaten their right-wing definition of “religious liberty.” The Christian Right campaign to redefine “religious liberty” has been limiting women’s reproductive rights for more than a decade and has recently resulted in significant religious exemptions from antidiscrimination laws, same-sex marriage laws, policies regarding contraception and abortion, and educational policies. Religious conservatives have succeeded in reframing the debate, inverting the victim-oppressor dynamic, and broadening support for their agenda.

While the religious liberty debate is a growing front in the ongoing culture wars, it is actually an old argument repurposed for a new context. In the postwar era, the Christian Right defended racial segregation, school prayer, public religious displays, and other religious practices that infringed on the liberties of others by claiming that restrictions on such public acts infringed upon their religious liberty. Then as now, the Christian Right turned antidiscrimination arguments on  their heads: instead of African Americans being discriminated against by segregated Christian universities, the universities were being discriminated against by not being allowed to exclude them; instead of public prayers oppressing religious minorities, Christians are being oppressed by not being able to offer them.

Another Small Business Sues To Challenge Contraceptive Coverage Mandate

Lawsuits by small businesses and their owners asserting religious objections to the Affordable Care Act's contraceptive coverage mandate continue to be filed. The latest is Eden Foods, Inc. v. Sebelius, (ED MI, filed 3/20/2013) (full text of complaint). The suit was filed by the corporation and its chairman, president and sole shareholder, Michael Potter. Eden manufactures and sells natural and organic foods, including a line of kosher food. The complaint asserts, in part:

Plaintiff Michael Potter cannot compartmentalize his conscience or his religious beliefs from his daily work and actions as the Chairman, President, and sole shareholder of Plaintiff Eden Foods. Therefore, Plaintiff Michael Potter and Plaintiff Eden Foods share a common mission of conducting their business operations with integrity and consistent with the teachings, mission, and values of the Catholic Church.

The complaint asserts 1st Amendment, RFRA and Administrative Procedure Act claims. Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Colombia's Council of State Invalidates Regulations Mandating Hospitals Perform Certain Abortions

In 2006, Colombia's Constitutional Court struck down the country's total ban on abortions and ruled that abortion must be allowed in cases of rape, incest, fetal malformation or where the life of the mother is threatened. (Background.) Later that year, the country's Ministry of Social Protection issued a decree to implement the court's decision, and refused to exempt Catholic hospitals that had religious objections to performing abortions. In 2009, the Council of State, Colombia's highest administrative court, suspended the decree while considering its constitutionality.  Now, according to a report yesterday by LifeSite News, the Council of State has ruled that the implementing decree is invalid.  It concluded that the Ministry can only issue decrees to implement laws passed by the legislature.  Only the National Congress can issue regulations to implement Constituitonal Court rulings.

Justin Welby Enthroned As New Archbishop of Cantebury

Reuters reports that in Britain today, Justin Welby was officially enthroned as the 105th Archbishop of Canterbury. The Telegraph describes the elaborate ceremony held at Cantebury Cathedral which made Welby the head of the Church of England and the leader of the Anglican Communion around the world. In his inaugural sermon (full text), Archbishop Justin said in part:

For more than a thousand years this country has to one degree or another sought to recognise that Jesus is the Son of God; by the ordering of its society, by its laws, by its sense of community. Sometimes we have done better, sometimes worse. When we do better we make space for our own courage to be liberated, for God to act among us and for human beings to flourish. Slaves were freed, Factory Acts passed, and the NHS and social care established through Christ-liberated courage. The present challenges of environment and economy, of human development and global poverty, can only be faced with extraordinary courage.

The new archbishop brings an unusual personal history to the position.  For 11 years before beginning his theological studies, he worked as an executive in French and British oil exploration and production companies. While he was in France, his 7-month old daughter was killed in a car crash.  Welby's paternal grandfather, Bernard Weiler, was a German Jewish immigrant who moved to England in 1884. (Background). The Archbishop's father led a complicated and secretive life. Welby learned his true family history only as an adult.

Russian Court Rejects Initial Appeal of Sentences By Pussy Riot Members

According to Sky News, in Russia the presidium of the Moscow City Court on March 15 rejected an appeal by Nadezhda Tolokonnikova and Maria Alyokhina, the two members of the punk group Pussy Riot who have been sentenced to two-years in remote prison camps for 'hooliganism motivated by religious hatred." (See prior posting.)  The sentence came in the band's prosecution for an anti-Putin protest performance in Christ the Savior Cathedral. In addition to rejecting the defendants' appeal, the court also rejected an official complaint by Russia's rights ombudsman who sought a new trial for the women, claiming that their actions were not serious enough to be classified as a crime. The judge ruled that the sentence was "fair and proportional to the offence."  The women now plan an appeal to the chairman of the Moscow City Court, and then to the Supreme Court.

British Guest House Owners Get Around Decision Barring Discrimination Against Same-Sex Couples

Last year, England's Court of Appeal upheld upheld a damage award under Britain's Equality Act against a Christian couple who operated a hotel for refusing, on religious grounds, to rent a double-bedded room to a same-sex couple that had reserved it. (See prior posting.) According to today's London Telegraph, the couple say they have now found a way to continue to refuse to rent rooms to same-sex couples. Peter and Hazelmary Bull have turned their guest house into a not-for-profit organization that offers respite care for Christians.  Guests are limited to those who are in agreement with the Bulls' Christian values. Presumably this move allows the Bulls to rely on the exemption in Schedule 23 of the Equality Act which, among other things, permits non-profit organizations formed "to enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief" to discriminate on the basis of religion or sexual orientation in providing facilities or services. Meanwhile the Bulls are also pursuing an appeal of the original decision to the Supreme Court.

5th Circuit Says Bar On Monks' Sale of Caskets Is Unconstitutional

In St. Joseph Abbey v. Castille, (5th Cir., March 20, 2013), the U.S. 5th Circuit held unconstitutional rules issued by the Louisiana Board of Funeral Directors that limit the sale of caskets to funeral homes. The law was challenged by a group of Benedictine monks who make and sell wooden caskets at prices significantly lower than offered by funeral homes. In finding that the law violates the due process and equal protection clauses, the court said:

The great deference due state economic regulation does not demand judicial blindness to the history of a challenged rule or the context of its adoption nor does it require courts to accept nonsensical explanations for regulation. The deference we owe expresses mighty principles of federalism and judicial roles. The principle we protect from the hand of the State today protects an equally vital core principle – the taking of wealth and handing it to others when it comes not as economic protectionism in service of the public good but as “economic” protection of the rulemakers’ pockets. Nor is the ghost of Lochner lurking about. We deploy no economic theory of social statics or draw upon a judicial vision of free enterprise. Nor do we doom state regulation of casket sales. We insist only that Louisiana’s regulation not be irrational – the outer-most limits of due process and equal protection....  

The funeral directors have offered no rational basis for their challenged rule and, try as we are required to do, we can suppose none...

The New Orleans Times-Picayune reports on the decision. (See prior related posting.)

Kentucky Settles Establishment Clause Case With New Safeguards For Child-Care Agencies

A settlement agreement has been reached in the long-running litigation in Pedreira v. Kentucky Baptist Homes for Children (see prior posting).  Yesterday both ABP and an ACLU press release reported on the Settlement Agreement (full text) in the case in which taxpayers charged that payment of state funds to KBHC for the care of children violates the Establishment Clause. The ACLU describes the settlement terms:

Under the settlement, child-care agencies that contract with the state will be forbidden to discriminate in any manner against any child based on the child's views about religion or to pressure children to participate in religious worship or instruction. Publicly funded child-care agencies and foster homes across the state also will be barred from placing religious items in children's rooms without their consent, and religious materials will be given only to children who request them.

In addition, prior to placing a child with a religiously affiliated child-care agency or foster home, the state will inform children and parents of the provider's religious affiliation, and if the child or parent objects, the state will endeavor to provide an alternative placement.

UPDATE: While the state of Kentucky is agreeing to a settlement, Sunrise Children's Services (formerly known as Kentucky Baptist Home for Children) says in a March 21 press release that it is not and is pressing for a ruling on the merits. It claims that it does not engage in religious coercion, nor does government money subsidize any religious activity.

Plaintiffs May Move Ahead On Some of Their Claims Charging Anti-Semitic Bullying

In Shively v. Green Local School District Board of Education, (ND OH, Feb. 28, 2013), parents filed suit claiming that school officials and employees failed to prevent or respond to physical, verbal and electronic religion-based and gender-based bullying of their daughter that went on for years.  Among the many instances of bullying set out in the complaint are claims that students regularly told their daughter she would "rot in Hell" because she did not believe in Jesus Christ, and regularly called her a "dirty Jew" or "Hitler."  An Ohio federal district court permitted plaintiffs to move ahead with substantive due process and equal protection allegations, as well as claims of negligence. However it dismissed several other claims, including one based on the free exercise clause. The court said:

Plaintiffs argue that [their daughter] T.S. has the right to be left alone regarding her religion. Moreover, she has the right not to be punished or put at some disadvantage for being Jewish.... While the events described ... are disturbing on many levels, the Amended Complaint ... presents no facts suggesting that Defendants compromised Plaintiffs’ ability to practice religion.

Factual Issues Remain In 7th Day Adventists' Challenge To Solicitation Ordinance

In South-Central Conference of Seventh Day Adventists v. City of Alabaster, (ND AL, March 19, 2013), Seventh Day Adventists sued to enjoin the city of Alabaster, Alabama from enforcing its Solicitation Permit Ordinance against the church's Literature Evangelists who canvass door-to-door in the summer. Both parties moved for summary judgment. The court held that whether enforcement of the ordinance against plaintiffs violates the 1st Amendment depends on whether they are engaged in commercial or non-commercial speech. It continued:

If ... the Literature Evangelists were evangelizing and selling books, then ... the Plaintiffs’ speech would be religious in nature, and the Ordinances would be invalid as restricting First Amendment protected speech.... [However if] the Literature Evangelists were exclusively selling books and not evangelizing in any way, ... Plaintiffs’ speech would be commercial in nature, and the City could presumably regulate it....

All one must do is read the Literature Evangelists’ and City citizens’ divergent explanations ... to realize that the two distinct narratives that emerge cannot be reconciled. Because the court cannot resolve these differing accounts ... without making some credibility and factual determinations, the court must deny summary judgment for both parties.

Pope's Record Of Dealing With Abusive Priests Is Reviewed

The Washington Post this week reviewed the record of Pope Francis in dealing with sex abuse by priests when he served as Archbishop of Buenos Aires. It focuses particularly on issues raised by the case of  Father Julio Cesar Grassi. The Post reports:

during most of the 14 years that Bergoglio served as archbishop of Buenos Aires, rights advocates say, he did not take decisive action to protect children or act swiftly when molestation charges surfaced; nor did he extend apologies to the victims of abusive priests after their misconduct came to light.

It adds however:

There is no evidence that Bergoglio played a role in covering up abuse cases. Several prominent rights groups in Argentina say the archbishop went out of his way in recent years to stand with secular organizations against crimes such as sex trafficking and child prostitution. They say that Bergoglio’s resolve strengthened as new cases of molestation emerged in the archdiocese and that he eventually instructed bishops to immediately report all abuse allegations to police.

Meanwhile, the National Catholic Reporter yesterday said that the Pope supports zero tolerance of child abuse, citing an interview with him last year.

France's High Court Rules Private School Cannot Fire Muslim Teacher For Wearing Hijab

According to France 24, yesterday the Social Chamber of the Cour de Cassation (France's highest court) ruled that a private nursery school discriminated on the basis of religious belief against a Muslim teacher when it fired her for refusing to remove her hijab while at work. The court held that the principle of secularism established by the French constitution does not apply to private employers, so it cannot be invoked to deprive private employees of the anti-discrimination protections of France's Labor Code. The court ordered the school to pay a fine of 2500 Euros to the fired teacher, Fatima Afif. The court issued a Communique (full text in French) summarizing its decision as well as a decision in a companion case in which it held that the principle of secularism and neutrality did justify dismissing a public service employee for wearing a hijab. According to the court, the prohibition on manifesting religious beliefs by external signs, particularly clothing, applies even to employees providing a public service through a private employer. The employee involved worked for a city's health insurance fund.

Diocese To Pay $700K In Abuse Suit, Avoiding New Trial

The Milwaukee Journal-Sentinel reported yesterday that the Catholic Diocese of Green Bay (WI) has agreed to pay $700,000 in damages to two brothers who were sexually assaulted in the 1970's by now-defrocked priest John Patrick Feeney.  This amount is the damages awarded last July by a state court jury that heard the case.  Subsequently however the verdict was overturned because of juror misconduct, and a new trial had been scheduled to start in May.

Company Charged With Religious Discrimination By EEOC Settles Suit

The EEOC yesterday announced that a Nebraska-based lighting products company has agreed to settle a religious discrimination lawsuit brought against it by the Commission. According to the EEOC complaint, a Tulsa, Oklahoma branch manager advertised for an operations supervisor through the website of a Tulsa church. When Edward Wolf who was not a member of that church applied for the position, most of his job interview focused on his religious activities and beliefs. He was asked to list the churches he had attended, when and where he was "saved", and whether he would attend Bible study at work before clocking in.  Wolf was not hired for the position after the branch manager expressed dissatisfaction with his answers. In the settlement agreement, which must still be approved by the court, Voss Lighting Co. has agreed to pay $82,500 and will also  undertake specified steps to prevent future religious discrimination.

UPDATE: The court approved the settlement on March 20. (Tulsa World).

Was Religious Accommodation Needed For SCOTUS Arguments In Same-Sex Marriage Cases?-- An Editorial Commentary

While much has been written about the intersection of religious belief and same-sex marriage, next week's oral arguments before the U.S. Supreme Court in two same-sex marriage cases pose another religious issue that has hardly been noticed.  Oral arguments are scheduled for March 26 in Hollingsworth v. Perry, and on March 27 in United States v. Windsor. These dates are the first two days of Passover-- holidays in the Jewish calendar on which traditional Jews abstain from work.  One wonders if anyone involved sought, or thought about, religious accommodation.  Three Supreme Court Justices are Jewish (Justices Breyer, Ginsburg and Kagan). One of the eight attorneys presenting oral arguments is Jewish (Roberta Kaplan). The individual who created the legal issue in one of the cases was Jewish-- Edie Windsor's deceased partner, Thea Spyer. Amicus briefs in the cases have been filed by the American Jewish Committee, and by a broad coalition of religious groups that include national organizations representing the Conservative, Reform and Reconstructionist branches of Judaism.

Among the numerous rallies, demonstrations and events planned in Washington next week to coincide with oral arguments, the United for Marriage Coalition has scheduled "Parting the Waters: A Seder for Love, Liberation & Justice" on Tuesday evening, March 26.  So at least someone has noticed the significance of the dates.

In Israel, New Government Is Formed Without Haredi Parties In Coalition

In Israel yesterday, Benjamin Netanyahu's new coalition government was sworn in, without the two haredi (ultra-Orthodox) parties that had traditionally been part of past coalitions included in the government. Instead Netanyahu's coalition relies mainly on the secular Yesh Atid party and the religious pro-settler Jewish Home party.  The Times of Israel chronicles the bitter comments by the haredi Shas and United Torah Judaism lawmakers who now find themselves in their new role as members of opposition parties in the Knesset. AP reports that Yesh Atid will move quickly to submit a bill to reform the military draft to include Orthodox yeshiva students, and will also press for inclusion of more instruction in math, science and English in haredi schools.

Affordable Care Act Pre-Empts State Law Giving Opt Out From Contraceptive Coverage

In Missouri Insurance Coalition v. Huff, (ED MO, March 14, 2013), a Missouri federal district court issued a declaratory judgment finding invalid provisions of Missouri law that permit an opt-out on moral or religious grounds from the federal Affordable Care Act mandate, as well as the state mandate, that health insurance policies cover contraceptive services.  The court concluded that Missouri Revised Statutes § 376.1199, subdivisions 4, 5, and 6(1), (2) and (3) are pre-empted by the federal Affordable Care Act. Those sections provide in part:

Any health benefit plan ... shall provide clear and conspicuous written notice ... : (1) Whether coverage for contraceptives is or is not included; (2) That an enrollee ... has the right to exclude coverage for contraceptives if such coverage is contrary to his or her moral, ethical or religious beliefs; (3) That an enrollee who is a member of a group health benefit plan without coverage for contraceptives has the right to purchase coverage for contraceptives....

The court said:

Here, the federal law and regulations, with limited exceptions, provide that insurers must provide contraceptive coverage, without cost-sharing by an insured. The State law says that insurers cannot provide contraceptive coverage to any person or entity that objects to such coverage based on any moral, ethical, or religious objection. The Court is hard-pressed to see how this does not create a direct conflict for Missouri health insurers.

The court had previously issued a temporary restraining order in the case. AP reports on last week's decision.

House Panel Holds Hearing On Plight of Religious Minorities In Iran

Last Friday, the U.S. House of Representatives Tom Lantos Human Rights Commission held a hearing on The Worsening Plight of Religious Minorities in Iran. In its background statement, the Commission says:

Since the beginning of 2012, there has been an increase in the arrest, imprisonment and killing of religious and cultural minorities in Iran – particularly Christians, Baha’is and Sufi Muslims. 

Transcripts of the testimony of the five witnesses appearing before the Commission are available on the Commission's website.

Ban On School Girls Wearing Hijabs In Russian Caucasus Region Stirs Controversy

The New York Times yesterday reported on the controversy that has been set loose in Stavropol, a region in Russia at the edge of the Caucasus mountain range, after authorities in the far eastern part of the region have banned girls from wearing hijabs in public schools. According to the Times, while Stavropol is 81% ethnic Russian, conservative Muslim Dagestanis have been moving into the region, though only a few girls in a few villages actually wore hijabs to school. The Times continues:

Nevertheless, with conservative, pro-church sentiment surging in Russia, national news broadcasts highlighted the Stavropol story, showing an administrator guiding a child in a hijab back onto the school bus and sending her home.

The ban is being challenged in court, with a first hearing scheduled for tomorrow.

Self-Described Moorish American Nationals Are Taking Over Unoccupied Homes

The Washington Post yesterday reported on an "odd and perplexing phenomenon popping up in cities across the country" in which individuals, claiming to be Moorish American Nationals take over foreclosed or unoccupied homes-- often very expensive ones-- distorting tenets of the Moorish Science Temple of America to support their actions. Asserting claims that black people lived in what is now the United States long before Europeans arrived, they create elaborate arguments that various land instruments are invalid and local laws need not be obeyed. Generally police show up within a few days to evict the trespassers.

Supreme Court Denies Cert. In Establishment Clause Challenge To KY Homeland Security Statutes

The U.S. Supreme Court today denied review in American Atheists, Inc. v. Kentucky Office of Homeland Security, (Docket No. 12-613, certiorari denied 3/18/2013). (Order List.) In the case, a Kentucky state appeals court, in a 2-1 decision, rejected an Establishment Clause challenge to legislative findings enacted as part of Kentucky's 2002 Antiterrorism Act. The findings recited that "the safety and security of the Commonwealth cannot be achieved apart from reliance on Almighty God...." Another statute called on the state Department of Homeland Security to include in agency training and educational materials the language regarding reliance on God. (See prior posting.) The Kentucky Supreme Court denied review.

Bibliography of 2012 Jewish Law Publications Released

The Association of American Law Schools Section on Jewish Law last week published its March 2013 Newsletter which includes an 11-page bibliography of books and articles on Jewish Law published last year. The bibliography also includes a list of specialty journals.

Recent Articles of Interest

From SSRN:

• Kenneth L Marcus, Is Anti-Semitism Unique?: Review of Clemens Heni, Antisemitism: A Specific Phenomenon (Berlin: Edition Critic, 2013) (2013). Brandeis Brief (March 2013).
• Steven H. Resnicoff, Family Planning and Government Regulation – Jewish Law Perspective, (DePaul Journal of Health Care Law, Forthcoming).
• Alan Hurst, Hosanna-Tabor and the Exaggerated Decline of Separationism, (March 7, 2013).
• Marc O. DeGirolami, Book Review, Stephen v. Monsma, Pluralism and Freedom: Faith-Based Organizations in a Democratic Society, (Journal of Church and State (Forthcoming)).
• Russell Powell, Evolving Views of Islamic Law in Turkey, (March 14, 2013).
• Anna Jane Kloeden High, Government Beyond Law: Exploring Charity Regulation and Spaces of Order in China, (December 1, 2011).
• Andy G. Olree, 'Pride Ignorance and Knavery': James Madison's Formative Experiences with Religious Establishments, (Harvard Journal of Law and Public Policy, Vol. 36, No. 1, 2013). 

From SmartCILP and elsewhere:

• Victor E. Schwartz and Christopher E. Appel, Robert S. Marx Lecture. The Church Autonomy Doctrine: Where Tort Law Should Step Aside, (80 University of Cincinnati Law Review 431-499 (2011)).
• CambridgeBlog, Virtual Roundtable: Same-Sex Marriage, (March 15, 2013).

[Updated]

Recent Prisoner Free Exercise Cases

In Blount v. Phipps, 2013 U.S. Dist. LEXIS 31760 (WD VA, March 6, 2013), a Virginia federal district court dismissed complaints by a Muslim inmate that correctional officers delayed in returning two confiscated religious books, and that officials forced him to violate his Ramadan fast by refusing to alter the pill pass schedule.

In Bayadi v. Mathena, 2013 U.S. Dist. LEXIS 31757 (WD VA, March 5, 2013), a Virginia federal district court permitted a Sunni Muslim inmate to proceed, at least for now, with his RLUIPA claim for injunctive relief in which he complains officers refused to accommodate his need to grow a beard for religious reasons. The court gave defendants 30 days to file a second motion for summary judgment dealing with compelling interests and least restrictive means.

In Scott v. Erdogan, 2013 U.S. Dist. LEXIS 31703 (MD PA, March 4, 2013), a Pennsylvania federal district court adopted only in part a magistrate's recommendations (2013 U.S. Dist. LEXIS 30423, Jan. 30, 2013) and allowed a Muslim inmate to proceed with his complaint against two defendants. Plaintiff alleged that the prison system only provided services and instruction in Wahabi Islam, and that this infringed his right to practice orthodox Sunni Islam. Plaintiff also complained about certain practices during Ramadan.

In Alvarez v. Cate, 2013 U.S. Dist. LEXIS 32577 (ND CA, March 8, 2013), a California federal district court refused to grant summary judgment to defendants on RLUIPA and free exercise claims by an inmate whose drawings of various Aztec symbols were confiscated when he attempted to mail them to his family. Prison authorities claimed the drawings promote gang activity. The case was referred to the pro se prisoner mediation program.

In Cejas v. Myers, 2013 U.S. Dist. LEXIS 33393 (ED CA, March 11, 2013), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that Buddhist inmates are being denied access to the chapel for services without a chaplain or custody officer present.

In Davis v. Castelloe, 2013 U.S. Dist. LEXIS 32963 (ED NC, March 11, 2013), a North Carolina federal district court dismissed an inmate's complaint that the prison chaplain denied Catholic inmates time equal to that given other religious groups.

In Rahman v. Shearin, 2013 U.S. Dist. LEXIS 33853 (D MD, March 12, 2013), a Maryland federal district court dismissed an inmate's complaint that he was denied the right to participate in Sunni Muslim prayer services because prison officials wrongly had him listed as a member of Nation of Islam.

In Davis v. Flores, 2013 U.S. Dist. LEXIS 34215 (ED CA, March 11, 2013), a California federal district court dismissed a Muslim inmate's complaint that Friday Jumu'ah services for Level 4 inmates were suspended for several months after the prior Muslim chaplain was fired, instead of allowing unsupervised services.

In Wisniewski v. Mueller, 2013 U.S. Dist. LEXIS 22697 (D SC, Feb. 20, 2013), a South Carolina federal district court dismissed on ripeness grounds because plaintiff had been transferred to a different prison a complaint that prison policies barring magazines and paper materials in cells deprived him of the ability to receive Christian materials to study his faith. The magistrate's recommendation is at 2013 U.S. Dist. LEXIS 33484, Jan. 2, 2013.

In Haight v. Thompson, 2013 U.S. Dist. LEXIS 36062 (WD KY, March 15, 2013), a Kentucky federal district court on various grounds dismissed compaints by death row inmates that they were denied visits from clergy of their choice, were denied access to a sweat lodge to practice Native American religious ceremonies and were denied certain foods for use in a Native American powwow to be held at the prison.

Court Says Ban On Picketing Near Homes Survives Constitutional Challenge

In Bell v. City of Winter Park, (MD FL, March 6, 2013), a Florida federal district court upheld the constitutionality of an anti-picketing ordinance against free speech and free exercise claims. The law which bars picketing or protests within 50 feet of any dwelling was enacted after the president of Orlando's Planned Parenthood complained about shouting anti-abortion protesters carrying graphic signs in front of her house. The court held that this is a content-neutral time, place and manner regulation that does not violate free speech protections, and is a neutral generally-applicable law that survives a free exercise challenge.

Obama Names Delegation To Attend Pope's Inauguration Mass

Yesterday President Obama announced the designation of a Presidential Delegation to attend the Inauguration Mass of newly-elected Pope Francis in the Vatican on Tuesday. Vice-President Joe Biden will lead the delegation. The other members are New Mexico Governor Susana Martinez, House Democratic Leader Nancy Peolsi, and Georgetown University President Dr. John J. DeGioia.

Now Stymied Lawsuit In Russia Seeks To Invalidate Sale of Alaska To Protect Its Orthodox Christians From Same-Sex Marriage

RIA Novosti reports today on an attempt in Russia by an obscure ultraconservative Russian Orthodox religious group--  Pchyolki ("Bees)-- to sue the United States to invalidate Russia's sale of Alaska to the U.S. in 1867. Pchyolki says that the suit was motivated by President Barack Obama's support for legalizing same-sex marriage. Pchyolki says this threatens freedom of religion for Alaska’s Orthodox Christians, who "would never accept sin for normal behavior." The lawsuit cites technical violations of the terms of the 1867 treaty. Art. VI of the treaty called for the U.S. to pay Russia $7.2 million "in gold."  The complaint filed in a Moscow arbitrage court says payment was made instead by check.

The suit was originally filed in Moscow in January, and Pchyolki had until this week to file certain additional papers and notify the U.S. government of the lawsuit. It failed to do so, and the court has therefore not processed the lawsuit.

School District Moves Jesus Portrait To Another School, Presumably Strengthening Their Defense

As previously reported, last month parents and a student who attends Jackson, Ohio Middle School filed a federal court lawsuit against the school district seeking removal of a portrait of Jesus that has been displayed for 65 years on an entrance wall in the school. Shortly after the suit was filed, the school board voted unanimously to keep the portrait up, saying that it is protecting student free speech rights.  It claimed that the portrait belongs to, and was put up, but the Hi-Y club whose name is on the portrait frame. The board said the portrait is part of a "limited public forum" in which other student organizations can also hang portraits related to their purposes in the schools.(AP, 2/15/13).

The Columbus Dispatch reports today on a new development that presumably is intended to strengthen the school's case.  This week, at the request of the Hi-Y Club, the portrait was moved from the middle school building to a high school building.  The Hi-Y is a high school club, and when the portrait was put up in 1947, the middle-school building housed the high school. When the high school moved to a new building, the portrait was never moved. Now the Hi-Y students say they want the portrait in the building where the club currently meets and where its members are students. School Superintendent Phil Howard said: "We have to respect the rights of the club. Failure to do so might ... turn... the portrait into government speech."

In Syrian Rebel Areas, Islamists Are Setting Up Religious Courts

NPR reported yesterday that in Syria, as rebels have taken control of the northern part of the country, Islamists are setting up religious courts to dispense justice. However in cities like Mayadeen and Aleppo, moderate Muslims are objecting.

Court Refuses To Enforce Settlement In Good News Club Lawsuit

After the 8th Circuit last year held that a preliminary injunction should issue to permit Child Evangelism Fellowship's Good News Clubs to participate in a Minneapolis elementary school's after-school programming (see prior posting), the parties decided to settle the lawsuit. They filed a stipulation with the district court that provided for the school district to reinstate the Good News Clubs and pay plaintiffs' attorneys fees. It also sought the issuance of a permanent injunction and asked the court to retain jurisdiction for purposes of enforcing the injunction. In Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District No. 1, (D MN, March 12, 2013), the district court, in an unusual move, held that

the parties have not demonstrated that permanent injunctive relief is necessary or warranted.... Instead, because the District has voluntarily agreed to cease the challenged conduct, the Court finds that there is no threat of future irreparable harm to CEF and therefore an injunction should not issue.... Because the Court will decline to enter a permanent injunction and exercise continuing jurisdiction over this matter, the Court’s approval of the parties’ Stipulation is no longer necessary, and the document is now simply a private settlement.

Utah High Court Rules That Reformed FLDS Trust Is Different Legal Client Than Original UEP Trust

In a 3-2 decision in Snow Christensen & Martineau v. Lindberg, (UT Sup. Ct., March 12, 2013), the Utah Supreme Court ruled this week on yet another of the complex legal issues flowing from Utah courts' attempt to reform the United Effort Plan Trust that holds property of members of the polygamous FLDS Church. At issue was whether the law firm that once represented the original trust could now represent clients in challenges against the reformed trust, and whether the law firm had to turn privileged records over to the special fiduciary. The Supreme Court held that the reformation of the trust so changed it that it is no longer the same client as the original trust:

In reforming the UEP Trust, the district court stripped the Trust of its essential religious purpose and required that the Trust be administered according to secular principles.

Therefore, the Supreme Court majority held that the trial court erred in disqualifying the firm from representing FLDS members in their challenge to actions of the special fiduciary and in ordering the firm to disgorge privileged records to the special fiduciary. Deseret News reports on the decision.

Pizza Founder Wins Preliminary Injunction Against Contraceptive Coverage Mandate

A Michigan federal district court yesterday issued a preliminary injunction against enforcement of the Affordable Care Act contraceptive coverage mandate in a suit by Domino's Pizza founder Tom Monaghan and his property management company Domino farms Corp. In Monaghan v. Sebelius, (ED MI, March 14, 2013), the court held that plaintiffs are likely to succeed on their Religious Freedom Restoration Act challenge, writing:

the Court finds that DF is merely the instrument through and by which Monaghan expresses his religious beliefs. Accordingly, DF may assert an RFRA claim on Monaghan’s behalf. The Court takes no position as to whether DF has an independent right to freely exercise religion....

The Court’s task is not to question whether providing coverage is against Monaghan’s religious beliefs; that much is largely taken on Monaghan’s word.... Rather, the Court’s task is to determine whether this burden on Monaghan’s religious exercise is substantial. The Court finds that it is. Monaghan must violate his beliefs and modify his behavior or else pay substantial fines.

The court went on to hold that the government had not shown it has a compelling interest to enforce the mandate against these particular plaintiffs, given the numerous exemptions that lead to 190 million people being outside the mandate's coverage. Thomas More Law Center issued a press release on the decision.

Church's Zoning Challenge Dismissed On Ripeness Grounds

In St. Vincent De Paul Place v. City of Norwich, (D CT, March 13, 2013), a Connecticut federal district court dismissed on ripeness grounds a suit challenging the refusal of the city to issue a church a permit to operate a soup kitchen from a former religious school building. Plaintiffs should have applied for a variance before filing suit.

Suit Challenges "In God We Trust" On Coins and Currencuy

The Freedom From Religion Foundation, New York City Atheists, and 18 individual plaintiffs filed suit early last month in New York federal district court challenging on Establishment Clause, as well as other constitutional and statutory grounds, the use of the phrase "In God We Trust" on the nation's coins and currency.  The 78-page complaint (full text) in Newdow v. Congress of the United States, (SD NY, filed 2/1/2013), is described by an FFRF press release issued yesterday as "a tour de force of historical research, [which] unequivocally shows that there was a purely religious purpose and intent behind putting God on our coinage."  Honorary FFRF board member Mike Newdow is acting as legal counsel in the suit. First-named plaintiff, Rosalyn Newdow is apparently Michael Newdows mother. (Background). In 2006, Michael Newdow as plaintiff lost a similar challenge in a California federal district court suit. (See prior posting.)

Sikh Man Says California's Assault Weapons Ban Violates His Religious Beliefs

A lawsuit filed in a California federal district court this week by a Yuba City man alleges that California's ban on assault weapons, as well as its ban on carrying loaded firearms in one's vehicle and certain other places, violates the free exercise rights of plaintiff, a Sikh.  The complaint (full text) in Khalsa v. State of California, (ED CA, filed 3/12/2013) alleges:

Mainstream Sikh doctrine since the time of Guru Gobind Singh requires that Sikhs be at all times FULLY prepared to defend themselves and others against injustice. Some splinter groups attempt this by wearing symbolic miniature daggers in their turbans, to comply with this requirement. But mainstream Sikhs believe that the requirement is a literal and true moral duty.

Citing attacks and threats on Sikhs since 9/11, plaintiff also claims that the Second Amendment protects his right to be reasonably armed  in places and at times in which he and other Sikhs are likely to be attacked-- in his home, on the streets and in his temple. News10 reports on the lawsuit.

Another Small Business Owner Challenges Contraceptive Coverage Mandate, But With Special Symbolism

Thomas More Law Center yesterday announced that another lawsuit by a small business and its owner challenging the contraceptive coverage mandate of the Affordable Care Act was filed this week.  This time the challengers were Southern Baptist plaintiff Thomas Beckwith and the Florida-based Beckwith Electric Company, Inc. The individual plaintiff is a 93% stockholder and CEO of the company.  The complaint (full text) in Beckwith Electric Company, Inc. v. Sebelius, (MD FL, filed 3/12/2013), asserts legal challenges similar to many of the other suits that have been filed in recent months.  This suit however has two unique symbolic elements to it. First, according to Baptist Press, this is the 50th lawsuit filed challenging the mandate. Second, the suit alleges that Thomas Beckwith is "a descendant of the Beckwiths, who in 1626 endured the hardships of the lengthy and storm-ridden voyage to America on a 40-foot boat called the "Sparrow Hawk"; the Beckwiths landed on these shores to escape religious persecution in England."

ACLU Challenges Christian Prayers At County Commission Meetings

The ACLU of North Carolina announced yesterday that it has filed suit on behalf of three Rowan County (NC) citizens challenging the opening of nearly all County Board of Commissioners meetings with sectarian prayer. The federal court complaint (full text) in Lund v. Rowan County, North Carolina, (MD NC, filed 3/12/2013), alleges that 139 of the past 143 Board meetings were opened with prayers that concluded with references to Jesus or other Christian concepts. The suit argues that this violates the Establishment Clause as well as provisions of the North Carolina Constitution.  Plaintiffs also filed a motion for preliminary injunction and a memorandum in support of the motion.

Court Upholds Parent Church Body's Closing of Church and Takeover of Assets

In Metropolitan District of the Christian and Missionary Alliance v. Community Church of Paramus of the Christian and Missionary Alliance, Inc., (NJ App., March 8, 2013), a New Jersey appeals court rejected a challenge to the decision by the Christian and Missionary Alliance to close the Community Church and acquire title to its assets pursuant to a reversionary clause in the church's constitution. The decision to close the church came after its attendance dwindled and it was discovered that $68,000 in assets had been embezzled. Affirming the trial court's decision upholding the action of the parent body, the appeals court said:

We cannot parse the ecclesiastical constitution and rules of the CMA and the Metropolitan District and then apply neutral principles to determine whether the denomination's designated authority, the district executive committee, properly interpreted and applied such constitution and rules in this case. Matters of church governance, predicated upon its principles and hierarchical structure, should not be the subject of secular judicial resolution. "In disputes involving a church governed by a hierarchical structure, courts should defer to the result reached by the highest church authority to have considered the religious question at issue."

Argentine Cardinal Jorge Mario Bergoglio Named Pope Francis I

As reported by the Washington Post and AP, a new Pope has been elected today-- Argentine Cardinal Jorge Mario Bergoglio, who has chosen the name Pope Francis I. The Pope, a Jesuit, is the first Pope ever from the Americas.

UPDATE: President Obama on Wednesday afternoon issued a statement (full text) offering warmest wishes to the new Pope on behalf of the American people. The statement said in part:

Just as I appreciated our work with Pope Benedict XVI, I look forward to working with His Holiness to advance peace, security and dignity for our fellow human beings, regardless of their faith.  

Melissa Rogers To Be Appointed To Head President's Faith-Based Office

Melissa Rogers will be appointed to head the White House Office of Faith-Based and Neighborhood Partnerships, according to a press release today from the Baptist Joint Committee for Religious Liberty. Rogers is Director, of the Wake Forest University Center for Religion and Public Affairs and is a Nonresident Senior Fellow at the Brookings Institution.  She previously served as executive director of the Pew Forum on Religion and Public Life, and as general counsel of the Baptist Joint Committee for Religious Liberty.  Rogers served as chair of the President’s Advisory Council on Faith-based and Neighborhood Partnerships in 2009-10 and was part of a task force that that in March 2010 issued a report on Reform of the Office of Faith-Based and Neighborhood Partnerships that dealt with a number of the difficult church-state issues involved in government funding of faith-based social services. Rogers will succeed Joshua DuBois who resigned as director of the faith-based office last month. (See prior posting.)

3rd Circuit Upholds Elementary School Student's Right To Distribute Christmas Party Invitations

In K.A. v. Pocono Mountain School District, (3d Cir., March 12, 2013), the U.S. 3rd Circuit Court of Appeals upheld the right of a 5th grade student to hand out invitations to her classmates to a Christmas party at her church when classmates are allowed to hand out invitations to birthday parties, Halloween parties and the like during non-instructional time. Affirming the district court's grant of a preliminary injunction (see prior posting), the court held that the Supreme Court's Tinker decision should apply in the elementary school context as well as for older students.  It said:

the Tinker analysis has sufficient flexibility to accommodate the educational, developmental, and disciplinary interests at play in the elementary school environment.

The court concluded: "the School District‘s failure in this appeal to identify any disruption caused by K.A.‘s invitation, makes it reasonably likely that K.A. will prevail in this litigation." AP reports on the decision.

2nd Circuit: Mets Did Not Breach Vendor Contract In Barring Kosher Food Sales On Sabbath

In Kosher Sports, Inc. v. Queens Ballpark Company, LLC, (2d Cir., March 12, 2013), the U.S. 2nd Circuit Court of Appeals affirmed the district court's decision in a contract dispute over the sale of kosher hot dogs at New York Mets home games at Citi Field.  The appeals court agreed that the ballpark owner did not breach its agreement with a kosher food vendor by prohibiting the vendor from selling kosher food at Friday night and Saturday games.  In an article on the decision, The Forward reports that Kosher Sports Inc. had taken steps to allow for pre-cooking of food and operation of its carts by non-Jews so that there would be no violation of the Sabbath. The Mets organization however was concerned with appearances that could undermine fans' confidence that the food being sold was kosher. (See prior related posting.) [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

Los Angeles Archdiocese Settles 4 Suits For Nearly $10 Million

AP reported yesterday that the Catholic Archdiocese of Los Angeles has agreed to settle four cases against it by abuse victims of now-defrocked priest Michael Baker for a total of nearly $10 million. The abuse allegations cover 26 years-- 1976 to 2000. Two of the cases named Cardinal Roger Mahony who failed for many years to remove Baker. Released documents show that Mahony helped shield abusive priests. (See prior posting.)  An attorney for the Archdiocese says that the Archdiocese is responsible for Baker's actions. Two of the cases were set to go to trial next month, and the judge had ruled that plaintiffs could seek punitive damages. In the settlement, two of the plaintiffs will receive $4 million each, and two other will each receive $1 million.

School Revises Student Demonstration Rules In Settlement of Case

Thomas More Society announced yesterday that a settlement has been reached with Sinclair Community College in Dayton, Ohio in Deddens v. Warren County Montgomery County Community College District, (SD OH, filed 7/6/2012), a lawsuit filed last year after college rules were invoked to bar signs at a student-organized Stand Up for Religious Freedom Rally. (See prior posting.) The college has revised its policies to allow broader exercise of 1st Amendment rights.

Colorado Legislature Approves Civil Unions; Governor Expected To Sign Bill

The Colorado legislature today gave final passage to SB 13-11, the Colorado Civil Union Act, authorizing both same-sex and opposite-sex civil unions and giving parties to a civil union the same rights and obligations as spouses. It provides that a civil union may be certified by a judge, a magistrate, the parties or "in accordance with any mode of recognition ... by any religious denomination."  AP reports that Governor John Hickenlooper has said he will sign the bill, Many Republicans have expressed concern about the absence in the bill of religious exemptions for those opposed to civil unions.  Supporters say this would invite discrimination.  In 2006, Colorado approved a state constitutional amendment barring gay marriage-- but not civil unions.

Hungarian Parliament Passes Constitutional Amendment Giving Parliament Power To Recognize Religious Communities

Deutsche Welle reports that yesterday the Hungarian parliament passed a package of Constitutional amendments. Among other things, they limit the power of the country's Constitutional Court. They also effectively overrule a Constitutional Court decision handed down last month (see prior posting). That decision invalidated Hungary's Law on Legal Status of Churches that required all but 14 traditional faiths to apply to Parliament for recognition. The new constitutional amendments specifically authorize parliament to decide on recognition of religious communities,

Judge Rejects Request To Exclude Jews From Jury In Accused Terrorist's Trial

A federal district court judge in New York City yesterday denied a motion by counsel for an accused terrorist who wanted to exclude Jews from the jury because there will be inflammatory testimony at trial about Jews and Zionism.  ABC News reports that Frederick Cohn, the lawyer representing Abdel Hameed Shehadeh who is accused of making false statements about plans to kill Americans in Afghanistan, initially made the request last month to Judge Eric Vitaliano.

Pennsylvania Seminary Seeks To Intervene In Texas Schools' Challenge To Contraceptive Coverage Mandate

In a press release yesterday, the Pennsylvania-based Westminster Theological Seminary announced that it has filed a Motion to Intervene (full text) as a plaintiff in a Texas federal district court lawsuit brought  by East Texas Baptist University and Houston Baptist University challenging the Affordable Care Act contraceptive coverage mandate. (See prior posting.)

Meanwhile according to the South Bend (IN) Tribune , in a separate case, Notre Dame University filed a notice of appeal to the 7th Circuit in its challenge to the contraceptive coverage mandate. The district court dismissed its lawsuit on standing and ripeness grounds. (See prior posting.)

Suit Challenges Catholic Cemetery's Headstone Rules

The Indianapolis (IN) Star reported yesterday on a lawsuit against an arm of the Indianapolis Archdiocese over rules of a North Vernon, Indiana cemetery. Shannon Carr spent $9600 on a  black granite headstone for her late husband that reflected his interests.  It is shaped like a couch and depicts images of a deer, a dog and color logos of NASCAR and the Indianapolis Colts. St. Joseph Catholic Church notified the monument maker that the marker did not meet cemetery requirements.  The priest at St. Joseph says that even though regulations were not formalized until after Carr purchased the monument, Carr was notified before she purchased the marker that the Parish Council had determined that it was too secular under informal rules that were understood at that time. The Archdiocese attorney says that the court lacks jurisdiction over the case because deciding it would involve civil authorities in church affairs. [Thanks to Amy Edmonds for the lead.]

Media Speculates On Leading Candidates For New Pope

With the Conclave to elect a new Pope scheduled to begin in the Vatican tomorrow, AP reports on the leading contenders as of yesterday. It says the Vatican Curia is backing Brazilian Odilo Scherer who would be expected to appoint an Italian insider as Secretary of State, the number 2 position that runs day-to-day affairs. American cardinals are leading a push for a reform-minded pope and are backing Milan archbishop Angelo Scola. Three American Cardinals are also being mentioned as candidates-- Cardinal Sean O'Malley of Boston,  Cardinal Timothy Dolan of New York, and Cardinal Donald Wuerl of Washington,  Italy has the largest group of Cardinal electors and Italians had been elected to the Papacy for 455 years prior to 1978 when splits in the Italian delegation ended the tradition with the election of Pope John Paul II.

Recent Articles of Interest

From SSRN:

• Mohammad Abdullah , Analysing the Role of Shariah Supervisory Boards in Islamic Financial Institutions, (February 1, 2012).
• Joanie Sompayrac and Victoria Rose Burge, Does the Defense of Marriage Act Prevent the Internal Revenue Service from Treating All 'Married' Couples Equally?, (Journal of Accounting, Ethics & Public Policy, Vol. 14, No. 1, 2013).
• Mohammad Fadel, Judicial Institutions, the Legitimacy of Islamic State Law and Democratic Transition in Egypt: Can a Shift toward Common Law Model of Adjudication Improve the Prospects of a Successful Democratic Transition?, (Forthcoming in International Journal of Constitutional Law).
• Mark Rienzi, God and the Profits: Is There Religious Liberty for Money-Makers?, (March 7, 2013).
• Stephen M. Bainbridge, Using Reverse Veil Piercing to Vindicate the Free Exercise Rights of Incorporated Employers, (The Green Bag, Vol. 16, No. 3, Spring 2013).
• Nan D. Hunter and Suzanne B. Goldberg, Brief of Amici Curiae Professors Nan D. Hunter, et al., Addressing the Merits in Support of Respondents, (Georgetown Public Law Research Paper No. 13-019., Feb. 27, 2013).

From SmartCILP and elsewhere:

• Kurt M. Denk, Jurisprudence That Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse, 88 Notre Dame Law Review 323-393 (2012).
• Jay Alan Sekulow and Erik M. Zimmerman. Reflections on Jews for Jesus: Twenty-five Years Later, 25 Regent University Law Review 1-23 (2012-2013).
• Michael J. Klarman, How Same-Sex Marriage Came to Be, Harvard Magazine, 30-35, March-April 2013.
• The March-April 2013 issue of Moment Magazine is devoted to Religious Freedom.

Pakistani Muslims Burn Christian Homes After Christian Is Charged With Blasphemy

CNN reports today:

Outraged Pakistani Christians took to the streets of Lahore on Sunday, protesting a rash of violence against their community over the weekend.  Demonstrators denounced the burning of more than 100 homes of Christians on Saturday -- a spree spurred by allegations that a Christian man made remarks against the Muslim prophet Mohammed.

The blasphemy charges were filed against Sawan Masih who denies the charges and says they were filed after he and two other men got into an argument while drinking.  Pakistan's Human Rights Commission said:

The attack is yet another shameful incident against a vulnerable community and further confirmation of the slide toward extremism in society on the one hand and, on the other hand, the apathy and inaction that has become the norm among the police. 

UPDATE: Pakistan's President Asif Zardari on Sunday instructed the Prime Minister to compensate each Christian family affected in the amount of 500,000 Rs (approximately $5000 US). He also pledged protection of non-Muslim citizens to the same extent as Muslims and said those involved in the vandalism should be brought to justice. He asked religious leaders for suggestions on how to prevent misuse of the blasphemy law. (Pakistan Today 3/11).

Puerto Rican Police Sued By Atheist Officer Over Workplace Prayer

The ACLU of Puerto Rico announced Friday that it has filed a lawsuit in federal court on behalf of a police officer who is an atheist who was harassed and demoted to handling menial tasks after he refused to participate in Christian prayer made a part of a workplace meeting by a police commander. Departmental meetings continue to include Christian prayers. The complaint (full text) in Marrero-Mendez v.Pesquera, (D PR, filed 3/8/2013), charges that the practice violates the Establishment Clause as well as various Puerto Rican statutory and constitutional provisions. According to an AP report: "It is one of the first cases of its kind filed in the deeply religious U.S. territory, where 85 percent of the people consider themselves Roman Catholic and a large minority is Protestant."

Recent Prisoner Free Exercise Cases

In White v. Lee, 2013 U.S. App. LEXIS 4470 (9th Cir., March 4, 2013), the 9th Circuit affirmed the dismissal of an inmate's RLUIPA and free exercise claims finding that plaintiff's religious beliefs in opposition to blood transfusions did not impact his prison physicians' chosen course of treatment for his knee pain.

In Muhammad v. Davis, 2013 U.S. Dist. LEXIS 27557 (MD FL, Feb. 28, 2013), a Florida federal district court permitted a Muslim inmate to move ahead with his claim for injunctive relief in a suit claiming that his rights under RLUIPA were violated when prison authorities refused to recognize his need to begin the Ramadan fast 90 minutes before sunrise (at Fajr).

In Buckley v. Scribner, 2013 U.S. Dist. LEXIS 27833 (ED CA, Feb 28, 2013), a California federal magistrate judge recommended allowing a Jewish inmate to move ahead with his claims that his kippahs and tallit were confiscated and destroyed and that he was denied chapel access on one day.

In Pittman-Bey v. Clay, 2013 U.S. Dist. LEXIS 29668 (SD TX, March 4, 2013), a Texas federal district court held that prison officials are entitled to qualified immunity in a damage action against them alleging free exercise violations because neither binding precedent nor a consensus of authority made it clear that an inmate had a free exercise right to receive the Ramadan meals when he refused to attend weekly Jumu'ah services based on his religious beliefs.

In Stanley v. Wenerowicz, 2013 U.S. Dist. LEXIS 30005 (MD PA, March 1, 2013), a Pennsylvania federal district court permitted a Muslim to proceed against certain defendants on his claim that  he was improperly transferred to a Virginia prison where he was required to shave in violation of his religious beliefs, even though he had been granted an exemption from frooming requirements by Pennsylvania correctional authorities.

In Jamison v. Bamberg, 2013 U.S. Dist. LEXIS 29347 (D SC, March 5, 2013), a South Carolina federal district court adopted a magistte's recommendation (2012 U.S. Dist. LEXIS 186577, Nov. 28, 2012) and dismissed an inmate's complaint that he was not provided a kosher diet and subsequently a House of Yahweh diet.

In McCoy v. Henderson, 2013 U.S. Dist. LEXIS 30881 (D KA, March 6, 2013), a Kansas federal district court dismissed an inmate's complaint that he was improperly denied kosher meals.

In Villanueva v. Rivera, 2013 U.S. Dist. LEXIS 29479 (D SC, March 4, 2013), a South Carolina federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 29484, Jan. 7, 2013) and dismissed an inmate's complaint that the prison system refused to recognize Kingism as a religion.

Free Exercise and Establishment Clause Challenges To NC Marriage Laws Dismissed On Procedural Grounds

In Thigpen v. Cooper, (NC Ct. App., March 5, 2013), a North Carolina state appellate court, without reaching the merits of the claim, dismissed a suit seeking a declaratory judgment that three of the state's marriage statutes are unconstitutional.  Plaintiff claimed that the statutes violate the Establishment Clause by making clergy agents of the state to perform a marriage ceremony; that  they violate free exercise protections because the state requires individuals entering into marriage to participate in a state-prescribed ceremony; and that it is unconstitutional for the state to prohibit members of the clergy from solemnizing the marriage of same-sex couples. (See prior posting.)  The only defendants named were the state of North Carolina and the state Attorney General in his official capacity. The court held that a state is not a "person" for purposes of 42 USC Sec. 1983, the federal statute giving plaintiffs a cause of action to challenge the state laws. It held further that the suit is not properly brought against the attorney general, because he plays no role in enforcing the marriage statutes being challenged.

Clergy-Communicant Privilege Does Not Extend To Lay Religious Counselors

In United States v. Dillard, (D KA, March 7, 2013), a Kansas federal magistrate judge [corrected] held that the clergy-communicant privilege extends only to members of the clergy and not to a lay counselor providing religious counseling or other support through a religious program. Defendant, Angel Dillard, visited inmates at the Sedgwick County jail through a non-profit religious ministries program.  In the case, the federal government is seeking information on Dillard's communications through the program with Scott Roeder, who is serving a life sentence for of murdering abortion provider Dr. George Tiller (see prior posting), and with another inmate who says that Dillard solicited his participation in unlawful activities against abortion providers. In rejecting Dillard's claim of privilege, the court said:

Extending the privilege to “counselors” and other lay members would require the Court to undertake the constitutionally-hazardous task of analyzing whether counseling was or was not “religious” – and possibly even balancing whether the religious component of a communication is substantial enough to require protection.

Latest Contraceptive Coverage Mandate Decision Includes Several New Twists

A Pennsylvania federal district court on Wednesday handed down a decision in a case challenging the contraceptive coverage mandate promulgated under the Affordable Care Act.  Unlike other cases decided so far, this one combined a challenge by a non-profit college and two for-profit businesses that do not appear to have any relation to the college.  The 69-page opinion reached different results as to the different challengers.  In Geneva College v. Sebelius, (WD PA, March 6, 2013), the court held that while the non-profit, Reformed Presbyterian Church-sponsored Geneva college had standing to challenge the mandate, its lawsuit should be dismissed for lack of ripeness. Under Feb. 13 proposed rules, Geneva may be exempted from compliance.

The court, however, handed down a more complex ruling as to the challenges by the for-profit businesses, refusing to dismiss their RFRA, free exercise and Administrative Procedure Act claims. It held that one of the companies, a closely-held corporation in the lumber business, has standing to assert its Catholic owners' free exercise rights under the 1st Amendment and RFRA. However the court held that the other business, a sole proprietorship, cannot assert a claim since it is not a separate entity. Instead its owner, who is also a plaintiff in the case, may assert the business' rights in his own name.

The court went on to apply the strict scrutiny standard, both under RFRA, and under the 1st Amendment as well finding that extensive exemptions prevent the mandate from being a "generally applicable" law. The court concluded that the owners had put forward a plausible claim that the mandate will impose a substantial burden on their religious beliefs, and that the government has failed to show a compelling interest in enforcing the mandate against these defendants. The court dismissed Establishment Clause, free speech and due process challenges.

Finally, in what may be a first in the many decisions handed down so far in challenges to the mandate, the court held that "plaintiffs set forth sufficient factual allegations to support a plausible claim that the notice and comment requirements of the APA were violated." ADF issued a press release on the decision.

UN Special Rapporteur Presents Findings On Rights of Religious Minorities

On March 5, Heiner Bielefeldt, United Nations Special Rapporteur on freedom of religion or belief, presented a report to the United Nations Human Rights Council on protecting religious minorities. (UN Press Release.) The Report (dated Dec. 24, 2012) (full text) concludes:

Human rights violations against persons belonging to religious minorities include disproportionate bureaucratic restrictions; denial of appropriate legal status positions needed to build up or uphold a religious infrastructure; systematic discrimination and partial exclusion from important sectors of society; discriminatory rules within family laws; indoctrination of children from minorities in public schools; publicly stoked prejudices and vilification sometimes connected with historic traumas and national mythologies; acts of vandalism and desecration; prohibition or disruption of religious ceremonies; threats and acts of violence; interference in the community’s internal affairs; confiscation of community property; criminal sanctions; denial of asylum, possibly resulting in extraditions and exposure to serious risks of persecution.

The report concludes with 30 recommendations, the most controversial of which is:

States should repeal any criminal law provisions that penalize apostasy, blasphemy and proselytism as they may prevent persons belonging to religious or belief minorities from fully enjoying their freedom of religion or belief.

Charisma News reports on these developments.

Suit Says Forest Service Did Not Adequately Protect Tribal Sacred Site In Permitting Uranium Mine

Yesterday, the Havasupai Tribe, along with three environmental groups, filed suit against the U.S. Forest Service challenging its decision to allow operation of a uranium mine near Grand Canyon National Park based only on a 1986 federal environmental review. (Press release).  The complaint (full text) in Grand Canyon Trust v. Williams, (D AZ, filed 3/7/2013) claims that the Forest Service failed to comply with environmental, mining, public land, and historic preservation laws. It alleges, among other things, that while the Forest Service has designated the area as Traditional Cultural Property and has recognized that it is a sacred site to the Havasupai Tribe and has begun consultations with the Tribe, it refuses to carry out a complete "Section 106 process" under the National Historic Preservation Act, which would include developing a memorandum of agreement with the tribe and state historic preservation office before restarting mining operations.

Court Refuses To Dismiss Challenge To 10 Commandments Monument

In Freedom From Religion Foundation, Inc. v. Connellsville Area School District, (WD PA, March 7, 2013), a Pennsylvania federal district court refused to dismiss an Establishment Clause challenge to a 6-foot tall stone monument containing the Ten Commandments located near the auditorium entrance to a junior high school.  The monument was donated to the school by the Fraternal Order of Eagles in 1957.  In allowing plaintiffs to move ahead, the court said in part:

Establishment Clause challenges are all unique and driven by the particular facts of the case. Plaintiffs are entitled to a reasonable time in which they may conduct limited discovery in their attempt to garner support for the cause they pursue, such as developing evidence from sources other than the commentary posted by board members with regard to the School District’s purpose for accepting and maintaining the monument. Discovery will also afford Defendant the opportunity to inquire deeper into whether particular hypersensitivities exist such that the viewpoint of a reasonable observer would differ, uncover the historical background of the monolith, and confirm the claimed nature of the content on the display.

The Pittsburgh Tribune-Review reports on the decision.

9th Circuit: Religious Healing Center Must Produce Subpoenaed Documents

Optimum Health Institute (OHI) is a healing ministry of the Free Sacred Trinity Church that operates two holistic healing centers. In Cason v. Federated Life Insurance Co., (9th Cir., March 6, 2013), the U.S. 9th Circuit Court of Appeals upheld a district court's civil contempt order against OHI after it refused to produce documents sought by Federated Life Insurance Company relating to attendance at OHI by Cheryl Cason who was suing the insurance company. The court rejected OHI's argument that forcing it to produce the documents would violate its First Amendment rights. OHI's ability to practice its religion would, at most, have been only incidentally affected, and no associational privacy was infringed. Cason already admitted she attended OHI, and OHI was permitted to redact the names of others from the documents it produced.

California Trial Court Issues Tentative Ruling Against Episcopal Church In Property Dispute

A California state trial court has issued a tentative ruling (full text), subject to change if either party requests oral argument, in Diocese of San Joaquin v. Schofield, (Fresno Super. Ct., March 6, 2013). The case involves an attempt by The Episcopal Church to establish its title to property of the break-away San Joaquin Diocese.  As previously reported, a state appeals court held that the trial court should apply neutral principles of law to determine the validity of property transfers allegedly made by break-away Bishop John-David Schofield before he was replaced. The Episcopal Church moved for summary judgment, arguing that because all the property transfers occurred after Schofield was removed as Bishop, the transfers were invalid. The court, in its tentative ruling, however refused to grant the motion, saying:

It is not enough for plaintiffs to merely state that Schofield was not the Episcopal Bishop of the Diocese of San Joaquin when he effected the transfers at issue. Plaintiffs were also required to show that, under neutral principals of law, Schofield lacked the authority to effect such transfers.... An individual incorporated as a corporation sole "may at any time amend the articles of incorporation of the corporation...."   (Corp. Code, § 10010.)... Plaintiffs have utterly failed to present either facts or evidence from which this court could conclude that the December 8, 2007 amendments enacted to leave the Episcopal Church were invalid.... In short, there is nothing to for this court to review under neutral principals of law.

Anglican Curmudgeon blog comments on the tentative ruling.