Recent Prisoner Free Exercise Cases

In Sanders v. Cain, 2013 U.S. Dist. LEXIS 47634 (MD LA, March 29, 2013), a Louisiana federal district court permitted an inmate to proceed with his complaint that Mormon inmates were not allowed to hold worship services on Sundays at the main prison complex interfaith chapel. However the court dismissed various other claims, including complaints of lack of office space and fund-raisers to purchase religious material for the Mormon community, as well as retaliation and defamation claims.

In Catanzaro v. Harry, 2013 U.S. Dist. LEXIS 46671 (WD MI, Feb. 19, 2013), a Michigan federal magistrate judge recommended dismissal of an inmate's claim that he was not allowed to attend church services while he was on parole to a Residential Sex Offender Program.

In Johnson v. Bailey, 2013 U.S. Dist. LEXIS 46473 (SD IL, March 30, 2013), an Illinois federal magistrate judge found no free exercise or RLUIPA violations at present in the time given a Buddhist inmate to eat his meals. The court said however that if, as was the case two yeas ago, the inmate had only 2 to 5 minutes to eat his religious diet, this would be a substantial burden on his religious practice.

In Rippy v. North Carolina, 2013 U.S. Dist. LEXIS 45666 (WD NC, March 29, 2013), an inmate claimed his free exercise rights were infringed when he was denied access to a yoga class and a 12-step program and was told to behave during an Islamic service. A North Carolina federal district court dismissed the in forma pauperis action pursuant to the Prisoner Litigation Reform Act because the inmate had previously filed 3 other suits dismissed as frivolous.

In Dickerson v. Gusman, 2013 U.S. Dist. LEXIS 47592 (ED LA, April 2, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 47595, March 7, 2013) and dismissed for lack of prosecution an inmate's complaint that he is not allowed to attend Jumah and other Islamic services.

In Taylor v. Godinez, 2013 U.S. Dist. LEXIS 48596 (SD IL, April 3, 2013), an Illinois federal district court rejected the free exercise and RLUIPA claims by an inmate who was an ordained Baptist minister who attempted to satisfy his tithing obligations by giving away 10% of his commissary purchases to other inmates. He was disciplined for violating prison rules against trading and trafficking.

In Watkins v. Haynes, 2013 U.S. Dist. LEXIS 43881 (SD GA, March 27, 2013), a Georgia federal district court rejected in part a magistrate's recommendations (2012 U.S. Dist. LEXIS 187476, Aug. 23, 2012) and dismissed on qualified immunity grounds a claim by a Rastafarian inmate for a non-flesh food diet cooked and served with separate vessels and utensils from meat items.

In Prall v. Supreme Court, 2013 U.S. Dist. LEXIS 48788 (D NJ, April 4, 2013), a New Jersey federal district court dismissed complaints about disapproval and rejection in earlier state court proceedings of an inmate's conscientious objection (based on his Nation of Gods and Earth's beliefs) to participation in the criminal justice system.

In Gowers v. Haleen, 2013 U.S. Dist. LEXIS 49709 (D UT, April 4, 2013), a Utah federal district court rejected a Mormon inmate's complaints that his free exercise rights were infringed when he was denied participation in auxiliary religious activities such as choir, piano or organ practice; he was randomly excluded from worship services; and he was suspended from all activities including worship services for disciplinary reasons.

In Heim v. York County Prison, 2013 U.S. Dist. LEXIS 50074 (MD PA, April 8, 2013), a Jewish inmate complained about delays in responding to his kosher diet request and retaliation, including anti-Semitic caricatures, because of his insistence on a kosher diet. A Pennsylvania federal district court dismissed his suit against institutional and supervisory defendants, but permitted him to proceed against the chaplain, the complaint supervisor and the correctional officers that allegedly harassed him.

In People v. Osman, 2013 Cal. App. Unpub. LEXIS 2487 (CA App., April 8, 2013), a California state appellate court rejected free exercise and equal protection challenges to a risk factor analysis for sex offenders used by the probation department which treated as added risk the fact that an individual had not lived with a lover for at least 2 years. Defendant argued that his Muslim religion bars cohabitation before marriage.

In Abpikar v. Martin, 2013 U.S. Dist. LEXIS 50433 (ED CA, April 6, 2013), a California federal magistrate judge permitted a federal inmate to proceed on his complaint that he was not permitted to participate in group worship with other Muslim inmates.

Court Approves Recovery For Chicago's Meritless Lawsuit Against Religious Group

In World Outreach Conference Center v. City of Chicago, 2013 U.S. Dist. LEXIS 46943 (ND IL, April 1, 2013), on remand from the 7th Circuit (see prior posting), an Illinois federal district court resolved the remaining issues in a challenge to the City of Chicago's rezoning of a former YMCA building.  World Outreach Center, a religious organization, was delayed for two years while it obtained required licenses and permits from housing Hurricane Katrina evacuees there and from operating it as a community center.  The court rejected most of World Outreach's equal protection and religious discrimination claims. However the court held that the City had imposed a substantial burden on World Outreach by filing and maintaining a meritless lawsuit against it, and that World Outreach is entitled to recover the attorneys' fees it incurred in defending the lawsuit. It concluded that an inference of hostility to religion could be drawn from the filing of the suit.

UPDATE: An Amended Opinion was issued on June 10, 2013.

2nd Circuit: Establishment Clause Claim that "Feminism Is Religion" Dismissed On Collateral Estoppel Grounds

In Hollander v. Members of the Board of Regents of the University of the State of New York, (2d Cir., April 10, 2013), the 2nd Circuit dismissed on collateral estoppel grounds an action claiming that the state and federal governments have violated the Establishment Clause by providing funding to Columbia University which maintains an Institute for Research on Women’s and Gender Studies and a Women’s Studies program. Plaintiff argues that feminism is a "modern-day religion." The courts had dismissed a similar suit in 2010 on standing grounds, and so the issue cannot now be relitigated. The court added: "Hollander is an attorney. Before again invoking his feminism-as-religion thesis in support of an Establishment Clause claim, we expect him to consider carefully whether his conduct passes muster under Rule 11," the procedural rule that imposes sanctions on attorneys for filing frivolous lawsuits. (See prior related posting.)

EEOC Raises Triable Questions of Fact On Abercrombie's Failure To Hire Muslim Teenager

Equal Employment Opportunity Commission v Abercrombie & Fitch Stores Inc., (ND CA, April 9, 2013), involves the question of whether Abercrombie & Fitch violated Title VII of the 1964 Civil Rights Act when it failed to hire a Muslim teenager, Halla Banafa, as a part-time stock-room employee. Banafa wore a hijab to her job interview. Abercrombie has a "Look Policy" that governs the dress of employees, and it precludes any kind of head wear (though the company has made exceptions). A California federal district court rejected several of Abercrombie's defenses and held that triable issues of fact exist as to whether Banafa's religion was the motivating factor in her failure to be hired.

One of Abercrombie's more interesting defenses was a 1st Amendment argument that "forcing Abercrombie to grant a Look Policy accommodation to a Muslim in-store employee who wears a hijab for religious reasons would... amount to the government's compelling it to advertise a fashion inconsistent with its “East Coast” and “preppy” style...."  The court said, however, that "Abercrombie cannot achieve an end-run around Title VII by elevating the appearance of its stock room employees to protected commercial speech." However it left open "the more difficult question of whether a living model, whose stated job responsibility is to advertise Abercrombie's brand, constitutes commercial speech." [Thanks to Jeffrey Pasek for the lead.]

6th Circuit: Church Has Standing To Sue Over Police Investigations of Loud Music

In Faith Baptist Church v. Waterford Township, (6th Cir., April 11, 2013), the U.S. 6th Circuit Court of Appeals held that a Michigan federal district court was wrong in denying a  church standing to complain about police investigations of complaints about loud music coming from the church during rehearsals, services and concerts. (See prior posting.)  The 6th Circuit said:

Plaintiffs have shown they have a reasonable fear that their speech, free exercise of religion, and freedom of association will be chilled.... Although Defendants did not actually enforce the ordinance, they credibly threatened to do so. As a result, Plaintiffs sustained a concrete and particularized injury.

The court also held that  claims against the prosecuting attorney in his individual capacity for injunctive and declaratory relief were improperly dismissed by the district court on qualified immunity grounds.  However the appeals court affirmed the district court's dismissal of civil conspiracy, equal protection and 4th Amendment claims, as well as all claims against the prosecuting attorney in his official capacity and for monetary damages in his individual capacity. [Thanks to Brian D. Wassom for the lead.]

Appeals Court: Wrong Standard Used In Denying YMCA's Property Tax Exemption

In Larimer County Board of Commissioners v. Colorado Property Tax Administrator, (CO App., April 11, 2013), a Colorado state appeals court held that the Board of Assessment Appeals applied the wrong legal test in denying the YMCA (except for its chapels and religious activity center) a religious purposes exemptions from property taxes for its two extensive recreational sites. The court concluded that the appeals Board had not applied the statutory presumption in favor of an exemption where an applicant has filed a declaration that sets forth its religious mission and purposes. Instead the Board's engaged in a detailed examination of a number of factors in determining that the YMCA's uses were not solely and exclusively religious.  The court said that this approach fosters an excessive government entanglement with religion. Also the Board erred in not considering whether the YMCA qualified for a partial charitable use exemption.

Azerbaijan's President Approves Restrictive Law On Distribution of Religious Books and Materials

News.Az today reports that Azerbaijan's president Ilham Aliyev has signed an order approving amendments to the Law on Freedom of Religion. Under the amendments, individuals and religious organizations can only acquire and use religious books, e-books, videos and other religious products and materials that are labeled with a special control stamp by government authorities. Government approval is required for the production, import or export of religious materials which must also be marked with a special control stamp before distribution.  Sale of religious materials can take place only at specialized locations established with government approval.

2 Studies Released: Religious Courts In US and State Bans on Applying Foreign Or Religious Law

Earlier this week, the Pew Forum On Religion & Public Life released two related studies. The first, titled Applying God’s Law: Religious Courts and Mediation in the U.S. surveys the routine operation of religious courts across the United States. The second is titled State Legislation Restricting Use of Foreign or Religious Law.  It surveys developments in 32 states in which legislation has been proposed, including 6 in which legislation has been enacted, to ban state courts from considering foreign or religious law in their decision making.

President Awards Medal of Honor Posthumously To Korean War Army Chaplain

Yesterday, President Obama awarded the Medal of Honor posthumously to Army Chaplain Emil Kapaun for his bravery during the Korean War. (White House Blog report.)  The President recounted at length Chaplain Kapaun's bravery in comforting the dying in a battle with Chinese troops early in the Korean War at Unson, and his subsequent service to his fellow prisoners of war in their prison camp where Kapun eventually died from disease and mistreatment. (Full text of President's remarks.)

In 2-1 Decision, State Appeals Court Says Judge's Reference To Biblical Passage Was Not A Problem

In In re Marriage of Sarah Peterson v. Adam Peterson,(MN Ct. App., March 25, 2013), the Minnesota Court of Appeals, in a 2-1 decision, upheld a trial court's award of sole physical custody of 3 minor children to the wife in a divorce action. One issue in the case was whether the trial judge improperly interjected her personal beliefs about a Biblical passage regarding a husband's authority to make decisions in the home.  The majority concluded that the judge's "brief, personal comments" were not an abuse of discretion, particularly since husband's lawyer did not object to them.

Judge Ross, dissenting in part, however took a very different view of the trial judge's comments that in her own marriage she dismissed the Biblical injunction that wives should obey their husbands. The dissent said in part:

I think a district court acts beyond its broad discretion in deciding child custody if the judge personally suggests her approval or disapproval of a religious doctrine that only one of the parties holds.... [K]nowing that the doctrine had taken a lead role in the custody trial, the judge revealed her bias by volunteering that in her own marriage she had “dismissed” the doctrine.

Judge Ross also expressed another concern:

Despite overwhelming evidence and findings recognizing that the children have always attended and continue to be actively involved in the marital church where they grew up, the district court never assesses how the children’s need for stability is impacted by the disruption in their church-related activities if Sarah has sole physical custody.

The Minneapolis Star Tribune reports on the decision.

Israeli Court Orders Release of Women Arrested For Praying With Prayer Shawls At Western Wall

In Israel, a Jerusalem Magistrate's Court yesterday ordered the release of 5 women who had been arrested after participating with Women of the Wall in their monthly women's prayer service near the Western Wall. According to Times of Israel, the women were arrested for wearing prayer shawls (traditionally worn only by men) during their Rosh Hodesh (new month) service. Women of the Wall have engaged in increasingly large prayer services since 1988 in their efforts to obtain legal recognition of egalitarian Jewish prayer at the Wall. The arrests came just as the Israeli government is moving toward a possible compromise between the more liberal branches of Judaism and the Orthodox rabbis who currently control the customs observed at the Western Wall plaza.  Judge Sharon Lary-Bavly, in ordering the women's release from custody, said that there were no grounds for their arrest and likened actions by the police to blaming a rape victim for the clothes she wears.

UPDATE: A transcript of the Court hearing and judge's ruling is available online via Failed Messiah blog.

President's Faith-Based Advisory Council Issues Report On Combating Human Trafficking

Yesterday the President's Advisory Council on Faith-based and Neighborhood Partnerships presented its recommendations on combating human trafficking in a 35-page report titled Building Partnerships to Eradicate Modern-Day Slavery. Advisory Council chair Susie Stern presented the report, and Melissa Rogers, director of the White House Faith-Based Office thanked the Advisory Council for its recommendations.

7th Circuit: Civil Courts Are Bound By Church Ruling That Defendant Is Not A Member Of A Religious Order

McCarthy v. Fuller, (7th Cir., April  10, 2013), is a complicated dispute over who is entitled to the possession of documents and artifacts of Sister Mary Ephrem who claimed to have experienced a series of apparitions of the Virgin Mary in which Mary told Sister Ephrem, "I am Our Lady of America." Sister Ephrem willed all her property to Sister Mary Joseph Therese, referred to in the litigation by her birth name, Patricia Fuller.  However, a lawyer, Kevin McCarthy and a Catholic layman, Albert H. Langsenkamp, who claims to be a Papal Knight of the Holy Sepulcher, contend they are entitled to the property and artifacts after they had a falling out with Fuller.  In this decision, an interlocutory appeal of an Indiana federal district court's order, the U.S. 7th Circuit Court of Appeals held that civil courts must recognize a ruling by the Holy See that "Patricia Ann Fuller is not a member of any religious Institute, formally recognized by the Catholic Church." That status is relevant to several issues in the litigation brought by McCarthy against Fuller-- allegations by Fuller that McCarthy defamed her by calling her a "fake nun," and allegations by McCarthy that Fuller defrauded him by misrepresenting herself as being a nun and living in a convent. Writing for a unanimous 7th Circuit panel, Judge Posner said:

In [its amicus brief] the Holy See has spoken, laying to rest any previous doubts: Fuller has not been a member of any Catholic religious order for more than 30 years. Period. The district judge has no authority to question that ruling. A jury has no authority to question it. We have no authority to question it.

AP reports on the decision.

Kansas Governor Signs Preservation of Religious Freedom Act

Yesterday, Kansas governor Sam Brownback signed HB 2203, the Preservation of Religious Freedom Act (full text). The new law provides in part:

Government shall not substantially burden a person’s civil right to exercise of religion even if the burden results from a rule of general applicability, unless such government demonstrates, by clear and convincing evidence, that application of the burden to the person: (1) Is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest....

Section 4 of the new law, however, limits its application in a number of ways.  Among other things, it does not apply to suits challenging prison or jail rules or conditions. It also does not authorize the application or enforcement in Kansas courts "of any law, rule, code or legal system other than the laws of the state of Kansas and of the United States." AP has further background on the law.

Singapore Court Refuses To Strike Down Ban On Male Homosexual Conduct

In Lim Meng Suang v. Attorney General, (Singapore High Ct., April 9, 2013), a Republic of Singapore trial court refused to declare Singapore's ban on male homosexual conduct to  be unconstitutional. Holding that the  ban is "an issue of morality and social values," the court in a lengthy opinion concluded that it cannot substitute its own views for that of Parliament where Parliament's decision is not "undeniably wrong." The National Law Journal, reporting on the decision, quotes the reaction of the gay couple who unsuccessfully challenged the law: "it is disheartening that we are criminals in the eyes of the law because of a segment of society ... insist on pushing their version of religion and morality on us."

President Renews Faith-Based Advisory Council

Last Friday, President Obama issued an Executive Order (full text) extending the life of the President's Advisory Council on Faith-Based and Neighborhood Partnerships for another two years. [Thanks to Blog From the Capital for the lead.]

Washington State AG Sues Florist Who Refused To Sell Flowers For Gay Wedding

Washington state attorney general Bob Ferguson announced yesterday that his office has filed a consumer protection lawsuit against a retail florist for refusing to sell flowers to a customer who wanted to purchase them for his wedding.  The complaint (full text) in  State of Washington v. Arlene's Flowers, Inc.,(Super Ct., filed 4/9/2013), alleges that the flower shop owner, Barronelle Stutzman, told customer Robert Ingersoll that she could not provide the flowers for his same-sex wedding "because of [her] relationship with Jesus Christ." The complaint alleges further that the sexual orientation discrimination involved here is a violation of the public accommodate provisions of Washington's Law Against Discrimination and thus a per se violation of the state's Consumer Protection Act. AP reports on the lawsuit.

South African Human Rights Commission Says Christian Center Violates LGBTI Rights

The South African Human Rights Commission yesterday issued a statement finding the Christian-affiliated Creare Training Centre has violated Lesbian, Gay, Bisexual, and Transgender (LGBTIs) rights to equality, dignity, religion, freedom of association, freedom and security of the person and education. The Centre was created by Our Father's Home Church and specializes in Christian studies and Christian Arts and Mission, It does not permit anyone in a same-sex "lifestyle" who "is not willing to be disciplined in this regard" to continue to study or lecture at the Centre. The Centre adds: "We offer ministry to help people that want to change their sexual orientation...." Gay Star News reports on the statement.

Catholic Diocese Sues Metals Dealer For Buying Stolen Church Vessels

According to the Toledo Blade, on Monday the Catholic Diocese of Toledo filed suit in an Ohio state trial court against a precious metals dealer that bought a solid silver gold-plated chalice and a gold ciborium. Both items were stolen from local Catholic churches. The complaint alleges that Toledo Coin Exchange "knew or should have known that the person from whom he purchased the stolen items was either a thief or a receiver of stolen property."

White House Issues Yom Hashoah Statement

Yesterday was Yom Hashoah, Holocaust Remembrance Day, on the Jewish calendar. The White House released a statement from President Obama (full text) marking the commemoration. The statement said in part:

Today, we honor the memories of the six million Jewish victims and millions of others who perished in the darkness of the Shoah.  As we reflect on the beautiful lives lost, and their great potential that would never be fulfilled, we also pay tribute to all those who resisted the Nazis’ heinous acts and all those who survived.

JTA reports on this, as well as a separate statement by Rep. Nancy Peolsi.

Romanian High Court Rejects Strange Religious Malpractice Lawsuit

The London Daily Mail reported last Saturday that Romania's High Court of Cassation has affirmed a lower court's decision rejecting a bizarre "religious malpractice" suit brought by lawyer Madalin Ciculescu against Orthodox bishop Constantin Argatu and four priests.  The lawsuit claims that the clergy failed to properly exorcise demons that were responsible for the bad smells that were ruining Cirlescu's business. Plaintiff says that the demons are now haunting him at home as well. The court agreed with the Church that the continued bad smells are imagined, and ordered Ciculescu to pay defendants' legal costs. Ciculescu says he plans to appeal to the European Court of Human Rights.

10th Circuit: School Did Not Violate Constitution In Preventing Religious Group From Distributing Fetus Dolls

In Taylor v. Roswell Independent School District, (10th Cir., April 8, 2013), the U.S. 10th Circuit Court of Appeals rejected 1st and 14th Amendment challenges by student members of a religious group, Relentless, to decisions by Roswell, New Mexico school officials that prevented them from distributing 2500 rubber fetus dolls to other high school students. The schools took the action after disruptions, described by the court as follows, caused by an initial distribution of the dolls:

Many students pulled the dolls apart, tearing the heads off and using them as rubber balls or sticking them on pencil tops. Others threw dolls and doll parts at the “popcorn” ceilings so they became stuck. Dolls were used to plug toilets. Several students covered the dolls in hand sanitizer and lit them on fire. One or more male students removed the dolls’ heads, inverted the bodies to make them resemble penises, and hung them on the outside of their pants’ zippers.

The court also reject plaintiffs' challenge to a district policy requiring pre-approval for distribution of all non-school sponsored material on school grounds. Summarizing its 55-page opinion, the court said:

Plaintiffs’ free speech challenges fail because school officials reasonably forecasted that the distribution would cause substantial disruption and because the distribution did cause substantial disruption. Plaintiffs’ free exercise and equal protection claims fail because the decision to stop the distribution was not based on religion, and Plaintiffs failed to show they were treated differently from similarly situated students. Plaintiffs’ facial challenge to the school policy also fails. The policy is not unconstitutional under the prior restraint doctrine because it constrains official discretion and contains adequate procedural safeguards—and because it applies to the school environment where greater deference is given to school officials. It is not void for vagueness because students of ordinary intelligence can understand its meaning and it neither authorizes nor encourages arbitrary or discriminatory enforcement.

Education Week reports on the decision.

Yeshiva's Zoning Challenge Dismissed On Ripeness Grounds

In Sheri Torah v. South Blooming Grove & Planning Board of the Village of South Blooming Grove, 2013 U.S. Dist. LEXIS 49797 (SD NY, March 28, 2013), a New York federal district court dismissed a suit by a Hasidic Jewish organization claiming that the village's failure to act on an application for a special permit to operate a yeshiva on plaintiff's leased property violates RLUIPA as well as various federal and state constitutional protections. The court concluded that the dispute is not ripe for review because "plaintiff has not plead that it has obtained a final decision from the Village on its application, and it has not shown that the narrow futility exception to this rule applies."

Philadelphia Archdiocese Finds 3 Accused Priests Unsuitable For Ministry

Yesterday the Catholic Archdiocese of Philadelphia announced that Father Joseph J. Gallagher and Father Mark S. Gaspar have been found unsuitable for ministry. The two were among the 21 priests placed on administrative leave after the release of a grand jury report in February 2011 on the handling of sex abuse complaints. The Archdiocese also ruled that a third priest, retired Monsignor Richard T. Powers, who was not listed in the 2011 grand jury report is unsuitable for ministry. The action was based on a substantiated allegation of sexual abuse of a minor that occurred 40 years ago outside the Archdiocese of Philadelphia. All the priests may appeal their removal to the Vatican. ABC News reports on the decisions which were made by Archbishop Charles Chaput.

Recent Articles of Interest

From SSRN:

• Jed Glickstein, Should the Ministerial Exception Apply to Functions, Not Persons?, (Yale Law Journal, Forthcoming).
• Jay Wexler, Some Thoughts on the First Amendment's Religion Clauses and Abner Greene's Against Obligation, with Reference to Patton Oswalt's Character 'Paul from Staten Island' in the Film Big Fan, (Boston University Law Review, 2013).
• Andrew J. Hull, Complete or Partial Accommodation: An Analysis of the Federal Circuit Split Over the Duty of the Employer to Reasonably Accommodate the Religious Beliefs of the Employee, (Regent University Law Review, Vol. 25, No. 1, 2012).
• Anthony C. Infanti, LGBT Families, Tax Nothings, (Journal of Gender, Race and Justice, Forthcoming).
• Geetanjali Srikantan, The Difficulties of Religious Pluralism in India: Analysing the Place of Worship as a Legal Category in the Ayodhya and Bababudangiri Disputes, (July 1, 2012).
• Ihsan Yilmaz, Towards a Muslim Secularism? An Islamic ‘Twin Tolerations’ Understanding of Religion in the Public Sphere, (Turkish Journal of Politics, Vol. 3, No. 2, Winter 2012).

From SmartCILP:

• Vincent J. Samar, Religion / State: Where the Separation Lies, 33 Northern Illinois University Law Review 1-64 (2012).
• Special Issue: The Authoriality of Religious Law. Guest Editor Massimo Leone; preface by Massimo Leone; articles by Julia J.A. Shaw, Michael Salter, David S. Caudill, Paolo Heritier, Ugo Volli, Shulamit Almog, Lotem Perry-Hazan and Massimo Leone. 26 International Journal for the Semiotics of Law 91-239 (2013).

Roundup of Recent Employment Discrimination Cases

Here is a roundup of recent developments in cases involving religious discrimination in employment:

The EEOC announced on April 4 that it has sued Bo-Cherry, Inc., a North Carolina corporation that operates several Bojangles' restaurants, charging failure to accommodate a Muslim job applicant's religious exercise, by requiring him to shave his beard rather than using a beard net.

In New York last week, a Muslim employee of the New York City Transit Authority who had worked for over ten years as a car cleaner filed a federal court lawsuit claiming that when he transferred to a different depot, he faced a campaign of hostility toward his religion and failure to accommodate his religious observances. Gothamist reports on the lawsuit. The complaint (full text) in Ahmed v. New York City Transit Authority, (ED NY, filed 4/3/2013) details interference with plaintiff's ability to attend Friday Jummah services, as well as other observances.

In Price v. Warrensville Heights City Schools, 2013 U.S. Dist. LEXIS 45552 (ND OH, March 29, 2013), an Ohio federal district court rejected a claim by a para-professional that the Warrensville Heights schools used insubordination charges as a pretext for terminating her, when their real reason was her refusal to join the principal's church and defendants belief that plaintiff's lesbian sexual orientation equated with her Pentecostal religious beliefs. The magistrate's decision in the case is at 2012 U.S. Dist. LEXIS 187333 (ND OH, May 3, 2012).

Recent Prisoner Free Exercise Cases

In Lewis v. Sternes, (7th Cir., March 28. 2013), the 7th Circuit affirmed an Illinois federal district court's rejection of a complaint by an inmate who was a member of the African Hebrew Israelites of Jerusalem. Plaintiff claimed that his free exercise rights were violated by authorities' insistence that he cut his dreadlocks because they pose a security risk.

In Watkins v. Haynes, 2013 U.S. Dist. LEXIS 43881 (SD GA, March 27, 2013), a Georgia federal district court adopted only in part a magistrate's recommendations (2012 U.S. Dist. LEXIS 187476, Aug. 23, 2012) in a claim by  a Rastafarian inmate that he was denied a religious diet. The court rejected a statute of limitations defense but dismissed the suit on qualified immunity grounds.

In Guillory v. Fischer, 2013 U.S. Dist. LEXIS 43986 (ND NY, March 28, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 43981, March 7, 2013) and permitted a Jewish inmate to move ahead with complaints that he was prevented from observing the Fast of Tammu and the festival of Sukkot.

In Crump v. Prelesnik, 2013 U.S. Dist. LEXIS 45126 (WD MI, March 29, 2013), a Michigan federal district court, agreeing with the conclusions of a federal magistrate judge (2013 U.S. Dist. LEXIS 46666, Feb. 13, 2013), and dismissed a Muslim inmate's complaint that he was not permitted to participate in Friday group prayer without signing the prison's form declaring he is a Muslim.

In Handy v. Diggins, 2013 U.S. Dist. LEXIS 45561 (D CO, March 29, 2013), a Colorado federal district court rejected in part a magistrate's recommendations (2013 U.S. Dist. LEXIS 45542, Feb. 26, 2013) and permitted a Muslim inmate to proceed with his claim that his free exercise rights were infringed when prison authorities denied him a kosher diet.

In Thomas v. Lawler, 2013 U.S. Dist. LEXIS 44281 (MD PA, March 28, 2013), a Pennsylvania federal district court granted certain discovery requests by a physically disabled Muslim inmate who was suing claiming he is forced to climb five flights of stairs for Muslim worship in a chapel with insufficient space and without a restroom. The discovery requests granted were ones relating to past 1st Amendment violations by defendant prison authorities.

In Coleman v. Jabe, 2013 U.S. Dist. LEXIS 41421 (WD VA, March 25, 2013), a Salafi Muslim inmate alleged dozens of infringement of his religious rights. A Virginia federal district court dismissed all of the claims except "his RLUIPA claims for injunctive and declaratory relief regarding the compact-disc policy, the prayer-oil policy (only as it relates to purchasing the oil from Keefe Commissary), the halal-diet policy, and the Salafism policy." The federal magistrate's recommendations in the case are at 2012 U.S. Dist. LEXIS 187385, Dec. 26, 2012.

In Gambino v. Payne, 2013 U.S. Dist. LEXIS 46576 (WD NY, March 28, 2013), a New York federal district court dismissed, with leave to amend, a complaint by a Jewish inmate that, as a pre-trial detainee, his kosher meals were mutilated, smashed, shaken and contaminated with pubic hair on a daily basis.

In Jones v. Conrad, 2013 U.S. Dist. LEXIS 44534 (ED AR, March 28, 2013), an Arkansas federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 44535, Feb. 15, 2013) and dismissed a complaint by an inmate that his rights were violated when he was denied swastika mail sent to him, and when he was denied a receipt of "Islam in History" because it was shipped in the same package as a prohibited book titled "Pornoland."

Court Denies TRO Against Contraceptive Coverage Mandate To Manufacturing Company

In MK Chambers Co. v. Department of Health and Human Services, (ED MI, April 3, 2013), a Michigan federal district court refused to issue an ex parte temporary restraining order to prevent enforcement of the Affordable Care Act contraceptive coverage mandate against a closely-held machinery components company and its two Catholic owners.  The court held that plaintiffs had not shown that they are likely to succeed either on their 1st Amendment or RFRA challenges.  As to RFRA, the court said:

Courts have held that the Mandate in question applies only to the corporate entity, not to its officers or owners, and that as to the individual owners, any burden imposed on them individually by the contraception mandate is remote and too attenuated to be considered substantial for purposes of the RFRA.... At this stage of the proceedings, without benefit of Defendants' response, Plaintiffs have not shown that Plaintiffs will prevail under the RFRA.

Attorneys Raise Interesting Arguments Seeking Release of Amish Convicted of Hate Crimes

AP and the Cleveland Plain Dealer report on interesting attempts by lawyers to obtain release while their appeals are pending for Samuel Mullet and several of his Bergholz Amish followers who were convicted last year on hate crime charges for hair and beard cutting attacks on a rival group of Amish. (See prior posting.)  Attorneys claim that assigning the convicted Amish to prisons around the country, some 1,000 miles away from home, is cruel and unusual punishment.  Relatives of the convicted Amish, because of religious restrictions on means of travel, cannot fly to see them, and must hire drivers to visit them by automobile. The motions also argue that language in last year's Supreme court decision upholding Obamacare as a tax, but not as a regulation of commerce, casts doubt on the constitutionality of the hate crimes law as applied to this case where the interstate commerce nexus was that the clippers and scissors used in the attacks came from out of state. The motions also argue that the hate crime law was not intended to apply to disputes among a religious group's own members.

UPDATE: On April 9, Federal Judge Dan Polster denied Samuel Mullet's motion for release, ruling that he still poses a threat to his Amish community and that his appeal does not raise substantial questions of law. (AP).

Biden and Obama Speak At White House Easter Prayer Breakfast

Yesterday, President Obama and Vice President Biden marked the end of the Easter season with a White House Prayer Breakfast.  The White House has released the full text of their remarks. In introductory remarks, Vice President Biden said in part:

For me, the essence of my faith is tolerance:  not being judgmental about people of different faiths.  When I was in Rome a few weeks ago, Pope Francis spoke movingly in his homily about our commitments to each other, not just as people of faith, but, he went on to say, but as human beings.

President Obama then spoke, saying in part:

To all the pastors in the house, I hope you’ve enjoyed some well-deserved rest after a very busy Holy Week.  I see some chuckles, so maybe not.  (Laughter.)  Here at the White House, I’m pleased to say that we survived yet another Easter Egg Roll.  (Laughter.)

Now, if you’ve been to this breakfast before, you know that I always try to avoid preaching in front of people who do it for a living.  That's sound advice.  So this morning, I'm just going to leave the sermon to others and offer maybe a few remarks as we mark this -- the end of this Easter season.

In these sacred days, those of us as Christians remember the tremendous sacrifice Jesus made for each of us –- how, in all His humility and His grace, He took on the sins of the world and extended the gift of salvation.  And we recommit ourselves to following His example –- to loving the Lord our God with all our hearts and all our souls and with all our minds, and to loving our neighbors as ourselves. 

That’s the eternal spirit of Easter.  And this year, I had -- I think was particularly special for me because right before Easter I had a chance to feel that spirit during my trip to the Holy Land.  And I think so many of you here know there are few experiences more powerful or more humbling than visiting that sacred earth. 

NYC Reports 2 Infant Post-Circumcision Herpes Infections Despite New Regulations

Last September, New York City's Board of Health adopted a controversial rule that requires informed consent from a parent or guardian in a Jewish ritual circumcision where a mohel will use the controversial procedure known as metzitzah b’peh.  The procedure, whose use is limited to certain Orthodox Jewish ritual circumcisions, involves use of the mohel's mouth-- rather than the more commonly used sterile pipette-- to suction blood from the circumcision site. (See prior posting.) Nevertheless, according to ABC News yesterday, in the last 3 month, two infants in New York City's ultra-Orthodox community have been infected with herpes following their circumcision

Hundreds of Thousands of Bangladeshis Demonstrate For Blasphemy Law

In Bangladesh today, hundreds of thousands of protesters supporting the Islamist group Hefazat-e-Islam descended on the capital Dhaka in support of 13 demands by the group, including a call for enactment of a blasphemy law with a death penalty aimed at those the protesters call "atheist bloggers." As reported by Al Jazeera the protests are a reaction to trials and sentences imposed on leaders of the Jamaat-e-Islami party for crimes committed during the country's bloody 1971 Liberation War. Secularists staged a rival protest. The bloggers who are the targets of the call for a blasphemy law have pressed for imposition of the death sentence on those found guilty of war crimes during the country's war of liberation.

Milwaukee Archdiocese To Release Records On Handling Priest Sex Abuse

According to yesterday's Pierce County Herald, the Milwaukee Catholic Archdiocese has agreed, as part of its bankruptcy plan, to release records showing how it dealt over the last 40 years with priests accused of child sexual abuse. Some 3000 pages of documents will be released on July 1 on the Archdiocese website. In a Chapter 11 Update posted on the Archdiocese website,  Archbishop Listecki describes at length the documents that will be released and a summary of what they will reveal. The documents will include depositions of Archbishop Weakland, Bishop Sklba and Cardinal Dolan taken in the Chapter 11 bankruptcy proceeding. Archbishop Listecki said:

I believe sharing these documents publicly will finally bring to a close a criticism that the Church continues to hide or conceal information, or that there are “secret files” tucked away in our archives.  I can assure you, there are not.

The documents apparently do not deal with priests in religious orders or non-clergy church personnel accused of abusing children.

Juvenile Court May Order Immunization of Children In State Custody Over Religious Objections of Parents

In In re M.M., (OR App., April 3, 2013), the Oregon Court of Appeals upheld the authority of a juvenile court to order immunization of children who are wards of the court, even though the children's mother and father have religious objections to immunization.  At issue is a court order involving eight children (between 1 and 8 years old) taken from their parents and placed in custody of the Department of Human Services after the court found their conditions endangered their welfare. The court held that "nothing in the juvenile code provisions that authorize the juvenile court or a child's legal custodian or guardian to make health-care decisions for a child limits that authority by providing or recognizing a right of parents to exempt their children from immunization."  The court also concluded that "the order did not unlawfully infringe on parents' constitutional rights to direct the upbringing of their children." The Oregonian reports on the decision.

Pakistan Tests Islamic Knowledge of Legislative Candidates

Pakistan's Constitution, Art. 62, provides, among other things, that a person shall not be qualified to be a member of Parliament (Majlis-e-Shoora) unless "he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins." Yesterday's Wall Street Journal reports that for the first time election officials are enforcing this provision for candidates in the May 11 elections for the lower house of parliament and for four provincial legislatures. Individuals filing to be candidates are being asked to recite verses of the Qur'an or prayers. Their responses are being shown on television. In the country, 17,186 candidates are running for 849 contested legislative seats. Candidate screening is being carried out by judges temporarily working for the independent Election Commission. Candidates are being screened to see if they meet other constitutional requirements as well, such as being "of good character and ... not commonly known as one who violates Islamic Injunctions," and being "sagacious, righteous and non-profligate and honest and ameen."

UPDATE: On Friday evening, a Lahore High Court justice issued an order instructing election officials to "immediately refrain from asking random intrusive and inquisitive questions that have no nexus with information given in the nomination papers or do not arise from the objections raised by the other side."  (Zee News).

New Egyptian Law Will Permit Religious Slogans In Election Campaigns

Bloomberg News reports that on Wednesday, the upper house of Egypt's parliament-- the Islamist led Shura Council-- approved a new political rights law that drops the ban on religious slogans in election campaigns.  It instead replaces the ban with a prohibition of slogans involving "gender and religious discrimination." (The Shura council is the only branch of parliament functioning, since the courts shut down the lower chamber.)  Secularists and human rights groups are critical of the new law, saying it is an attempt by the Muslim Brotherhood to take the political battle in a religious direction. According to Xinhua, some analysts believe the Supreme Constitutional Court will strike down the law on the basis that Chap. I, Art. 6 of Egypt's Constitution prohibits political parties based on religion.

Classroom Exercise Using "Jesus" To Illustrate Cultural Symbols Leads To Threats Against Instructor and University

According to the Palm Beach Post, last week Florida Atlantic University placed a non-tenured Communications instructor on paid administrative leave for his own safety and to prevent further disruptions to the University's operations, after he and the Communication and Multimedia Studies Department received numerous threats over a textbook exercise that the instructor used in a Feb. 25 class. The instructor, Deandre Poole, who is also vice chairman of the Palm Beach County Democratic Party, was teaching a course in intercultural communications using a standard textbook, "Intercultural Communication: A Contextual Approach."  He took an exercise from the instructor's manual that accompanies the book. As described by the Palm Beach Post:

The manual, which warns that the exercise is “a bit sensitive,” says the teacher should have students write “Jesus” on a piece of paper, then put the paper on the floor and “think about it for a moment. After a brief period of silence, instruct them to step on the paper. Most will hesitate. Ask why they can’t step on the paper. Discuss the importance of symbols in culture.”

One student, Ryan Rotela, objected to the exercise, and after class shouted at Poole and threatened to go to the media.  Poole filed an incident report with campus security and the student was ordered not to attend class further until the issue was resolved.  Rotela then went to a local television station with the story, which quickly gained national attention. Poole, the University and the county Democratic Party have received threatening calls and hate mail, some of them racist. Subsequently disciplinary charges against the student were dropped and the University announced the exercise would not be used again. Nevertheless, a local pastor plans to lead a "Take A Stand For Jesus" march to the University.

Poole, who does not want his teaching career defined by this incident, describes himself as a very religious Christian.

Hopi Tribe Seeks To Stop Auction of Sacred Artifacts In France

The Hopi Indian Tribe of Arizona is enlisting the help of the U.S. government to try to stop an auction in Paris next week of $1 million worth of sacred Hopi artifacts.  According to the New York Times yesterday, the Hopi spiritual items are being sold by a collector who purchased them over a 30-year period in the United States. The Hopis have sent a letter of objection to the Néret-Minet auction house, citing a clause in the tribe's 1936 Constitution that they say demonstrates the items are "held under religious custody by the Hopi people." Even though international agreements allow foreign nations to enlist U.S. aid in retrieving their antiquities from the United States, the U.S. does not have reciprocal agreements covering U.S. artifacts abroad.

IRS Revokes Closed Hospital's "Church Plan" Ruling To Get Insurance For Retirees

The New York Times reported earlier this week on the unusual recent decision by the Internal Revenue Service to revoke its 2003 "church plan" designation for the employee retirement plan of Hospital Center of Orange. This allows the Pension Benefit Guaranty Corporation to pick up payments to retirees of the financially-troubled Catholic-affiliated New Jersey hospital that closed 8 years ago. The Times says that the hospital's problems:

underscores a wrinkle in the federal pension law, which some faith-based employers have used to save money, despite the risks. Churches and workplaces with religious affiliations have been able to avoid the complex and costly requirements of the federal pension law, known as Erisa, by obtaining an I.R.S. ruling that their pension plans were church plans.

The designation not only freed them from having to fund their workers’ benefits, it also meant they could stop paying insurance premiums to the government and receive refunds on their last six years’ worth of premiums.

Tough economic times, and pitches from benefits consultants, have prompted more than 100 faith-based employers to seek church plan status....

[Thanks to Ken Myers for the lead.] 

13 State AG's Urge Broader Conscience Exemptions From Contraceptive Coverage Mandate

The Attorneys General of 13 states last week submitted to the Department of Health and Human Services a joint letter (full text) commenting on the Department's proposed rules that attempt to accommodate objections raised by non-profit religious organizations to the scope of the Affordable Care Act contraceptive coverage mandate. The letter urges the federal government to extend to all religious-affiliated nonprofits the exception that is available to houses of worship. It also calls for creation of a meaningful exception to the mandate for for-profit business owners who object on conscience grounds. Christian Post reports on the letter.

North Carolina Legislators Propose Nullification Resolution In Response To County Prayer Policy Challenge

As previously reported, last month the ACLU of North Carolina filed suit on behalf of three Rowan County (NC) citizens challenging the opening of nearly all County Board of Commissioners meetings with sectarian prayer.  In response, on April 1 two members of the state House of Representatives from Rowan County (with 12 co-sponsors) introduced what amounts to a nullification resolution. HJR 494 (full text) provides (after a series of whereas clauses asserting states' rights theories):

SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

AP and Huffington Post yesterday reported on the bill.

UPDATE: According to an April 4 report by WRAL, House Speaker Thom Tillis' office says the resolution is dead and will not be voted on.

Cert. Petition Filed In Hutterite Challenge To Workers Comp Coverage

A petition for certiorari (full text) was filed Monday with the U.S. Supreme Court in Big Sky Colony, Inc. v. Montana Department of Labor and Industry. In the case, the Montana Supreme Court in a 4-3 decision upheld against constitutional attack amendments to the state's workers compensation law that bring Hutterite Colonies within the definition of those covered when their members perform agricultural, manufacturing or construction services for in-kind services rather than wages. Becket Fund's website furnishes more information on the case.

Court Says Catholic University's Challenge To Contraceptive Coverage Mandate Is Not Ripe For Decisiion

In Ave Maria University v. Sebelius, (MD FL, March 29, 2013), a Florida federal district court dismissed on ripeness grounds a challenge by a Catholic university to the Affordable Care Act contraceptive coverage mandate. The court said in part:

The crux of Defendants’ ripeness argument is that they are in the process of amending the challenged regulations to accommodate religious concerns and that they have represented that they will never enforce the regulations in their current form against Ave Maria or any similarly situated entity. Ave Maria concedes that it is eligible for a temporary enforcement safe harbor.... This Court therefore joins the overwhelming majority of courts to have addressed similar challenges by similarly situated plaintiffs in concluding that Ave Maria’s claims are not ripe for adjudication.

Ave Herald reports on the decision.

Virginia Law On Marriage Officiants Discriminates Against Sikhs

In In re Dhanoa, (VA Cir. Ct., March 29, 2013), a Virginia trial court held that while Sikh temples do not have clergy, and thus members cannot rely on Va. Code Sec. 20-23 to perform marriage ceremonies, Sikhs do qualify under Va. Code Sec. 20-26 as members of a religious society that does not have ordained ministers.  The court went on to hold that two of the conditions imposed by Sec. 20-26 are unconstitutional-- the requirement that only one person per "religious society" may be authorized to certify marriages and the requirement that the person chosen by the religious society post a $500 bond.  The court held that the these requirements discriminate against Sikhs on the basis of religion. The ACLU issued a press release reporting on the decision.

Canadian Court Says Police Religious Ruse Did Not Violate Murder Defendants' Religious Freedom

In Regina v. Welsh, (ON Ct. App., April 2, 2013) the Court of Appeal of the Canadian province of Ontario upheld that an elaborate ruse in which an undercover policeman posed as a practitioner of the Jamaican Obeah spiritual-mystical system to obtain incriminating statements from two of three co-defendants in a first-degree murder case. The court rejected arguments that the undercover operation violated defendants' religious freedom protected by Sec. 2 of the Canadian Charter of Rights and Freedoms. In a 91-page opinion, the court also rejected a number of other challenges to the undercover operation and the admission into evidence of the incriminating statements. The Toronto Star reports on the decision.

Ohio School Will Remove Jesus Portrait After Insurer Balks

As previously reported, earlier this year a suit was filed in an Ohio federal district court seeking to have the Jackson (OH) school district remove a portrait of Jesus that has hung in a school for 65 years and was recently moved to another school. The school justified the portrait saying it is the property of the student Hi-Y Club. According to ABC6 News, in a hearing yesterday on a temporary restraining order the school agreed to take down the portrait-- because the school board's insurance company says it will not cover the costs of the lawsuit. The school board now expects a lawsuit from the Hi-Y group that it has ordered to take down the portrait.

Woman Sues After Being Thrown Off Metrorail For Singing Spirituals

CBS4 Miami reports on a lawsuit filed in Miami, Florida on Monday against the security company that furnishes guards for Miami's Metrorail and a guard who forced an 82-year old woman from a train for singing spiritual hymns.  Miami-Dade Transit says its rules prohibit anyone from singing, dancing or playing a musical instrument on the train without a permit. The lawsuit says that Emma Anderson was on the train to get some fresh air and find comfort in her faith following the recent death of her brother. She was bruised attempting to reclaim her small rolling suitcase from the guard who grabbed it when he told her to get off the train. The suit alleges assault, battery and negligence. Anderson's attorney says she was targeted because of her race and religion.

Requiring Religious Non-Profit To Pay Rent For Parking Lot Does Not Violate RLUIPA

In Parish of Jefferson v. Daughters of St. Paul Inc., 2013 La. App. LEXIS 599 (LA App., March 27, 2013), a Louisiana appeals court rejected a RLUIPA land use claim brought by Pauline Books & Media, a non-profit corporation of religious women who share their beliefs through media. A Jefferson Parish ordinance requires the corporation to pay rent to the Parish government for use of Parish property located in front of Pauline Books for parking by Pauline Books' customers.The court held that the required lease payments do not impose a substantial burden on Pauline Books religious exercise.

Palestinian President Recognizes Jordanian King's Role As Protector Of Jerusalem Muslim Holy Sites

According to the Times of Israel, last Sunday Jordan's King Abdullah II and Palestinian President Mahmoud Abbas signed an agreement (full text) reaffirming the role of the Jordanian king as Custodian of the Muslim Holy Sites in Jerusalem, including Al-Aqsa Mosque and the Dome of the Rock. The agreement provides that the Jordanian king has the right "to represent the interests of the Holy Sites in relevant international forums and competent international organizations."

Recent Artcles of Interest

From SSRN:

• SpearIt, Religion as Rehabilitation? Reflections on Islamin the Correctional Setting, (Whittier Law Review, Vol. 34, 2012, Forthcoming).
• Kristen Kyle-Castelli, Standing and the EstablishmentClause in the Wake of Arizona Christian School Tuition Organization v. Winn:Who is the Proper Plaintiff to Take a Stand in Tax Credit School Cases? , (82 Miss. L.J. Supra 239 (2013)).
• Davina Cooper and Didi Herman, Up Against the PropertyLogic of Equality Law: Conservative Christian Accommodation Claims and GayRights, (Feminist Legal Studies, Vol. 21, No. 1, 2013).
• Paola Bernardini, Religious Liberty: A Common Challenge forCatholic-Muslim Dialogue, (Ave Maria Law Review, Vol. 11, No. 1, p. 31, 2012).
• Stephen L. Mikochik, Teaching About Religion in the PublicSchools, Ave Maria Law Review, Vol. 11, No. 1, p. 149, Fall 2012.
• Damian P, Fedoryka, The Foundation of Rights in Popes JohnPaul II and Benedict XVI from the Perspective of the Gift , Ave Maria Law Review, Vol. 11, No. 1, p. 65, 2012).
• Russell Powell, Shari'a Politics: Islamic Law and Societyin the Modern World (Book Review), (28 Journal of Law and Religion 287 (2012)).
• T. Ward Frampton, 'Some Savage Tribe': Race, LegalViolence, and the Mormon War of 1838, (Journal of Mormon History, Forthcoming).
• Frederick Mark Gedicks, Dignity, History, and Religious-Group Rights, (San Diego Law Review, Vol. 50, 2013).
• Frederick Mark Gedicks, True Lies: Canossa as Myth, (San Diego Law Review, Forthcoming).
• Holly Fernandez Lynch, Religious Liberty, Conscience, andthe Affordable Care Act, (ETHICAL PERSPECTIVES, Vol. 20, No. (1) pp. 118-131 (2013)).

From SmartCILP:

• Fracois Dessemontet, The Application of Soft Law, Halakha and Sharia by International Arbitral Tribunals, [Abstract],23 American Review of International Arbitration 545-565 (2012).
• Kristin A. Olbertson, Religion and Rights in Nineteenth-Century American Law: Reflections on the Work of Elizabeth B. Clark, 53 American Journal of Legal History 121-130 (2013).
• Sands, Kathleen. Territory, wilderness, property, and reservation: land and religion in Native American Supreme Court cases. 36 Am. Indian L. Rev. 253-320 (2011-2012).
• Journal of Law and Religion, Vol. 28, No. 1 (2012- 2013) has recently been published.

Muslim Group Prevails On Free Exercise and RLUIPA Substantial Burden Challenges To Zoning Denial

In a detailed 70-page opinion in Irshad Learning Center v. County of DuPage, (ND IL, March 29, 2013), an Illinois federal district court held that DuPage County Illinois violated the substantial burden provisions of RLUIPA and the Illinois Religious Freedom Act Restoration Act, as well as the free exercise provisions of the U.S. and Illinois constitutions in denying a Muslim religious and educational group a conditional use permit to use certain property for religious and educational purposes. However the court rejected plaintiff's RLUIPA equal terms and non-discrimination claims, as well as its constitutional equal protection claim. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Bolds v. Cavazos, 2013 U.S. Dist. LEXIS 40393 (ED CA, March 20, 2013), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that the confiscation of his television set infringed his free exercise rights by preventing him from receiving religious programming.

In McClendon v. Caruso, 2013 U.S. Dist. LEXIS 40884 (WD MI, March 25, 2013), a Michigan federal district court dismissed an inmate's complaint that his free exercise rights were infringed when authorities treated his religious fast as if it was a hunger strike and required him to undergo to a check of his vital signs.

In Washington v. Caldwell, 2013 U.S. Dist. LEXIS 40764 (ED MI, March 22, 2013), a Michigan federal district court, adopting a magistrate's recommendation (2013 U.S. Dist. LEXIS 43707, Jan. 31, 2013), dismissed a complaint by a Protestant inmate that the prison chaplain refused to put him on the list for the Muslim fast of Ramadan.

In McKissick v. Owens, 2013 U.S. Dist. LEXIS 41703 (SD GA, March 25, 2013), a Georgia federal district court agreed with a magistrate's recommendations and dismissed an inmate's complaint that his free exercise rights were violated when non-vegan trays were used to serve vegan meals. UPDATE: The magistrate's decision is at 2013 U.S. Dist. LEXIS 46165, Feb. 21, 2013.

In Handy v. Cummings, 2013 U.S. Dist. LEXIS 41282 (D CO, March 25, 2013), a Colorado federal district court, rejecting parts of a magistrate's recommendations (2012 U.S. Dist. LEXIS 187115, Nov. 27, 2012), held that genuine issues of fact remain in connection with a Muslim inmate's complaint that his Islamic prayer book and prayer schedule were confiscated and then lost.

In Bloom v. Jennings, 2013 U.S. Dist. LEXIS 41970 (WD VA, March 25, 2013), a Virginia federal district court dismissed an inmate's complaint that he was prohibited from possessing his rosary because it violated restrictions on altered property and from possessing his cross necklace because it violates restrictions on the size of medallions.

In Miller v. Bouchard, 2013 U.S. Dist. LEXIS 41849 (ND NY, March 26, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 41853, March 4, 2013) and dismissed a Muslim inmate's complaint that he was prohibited from praying or wearing his Kufi while outside of his cell.

In Todd v. California Department of Corrections and Rehabilitation, 2013 U.S. Dist. LEXIS 43008 (ED CA, March 26, 2013), California magistrate judge recommended dismissing an inmate's complaint regarding his religious diet and confiscation of Creativity material. The court concluded that Creativity is not a religion, but merely a secular belief system based on an isolated teaching: the promotion of the White Race.

In Mootry v. Flores, 2013 U.S. Dist. LEXIS 42942 (ED CA, March 25, 2013), a California federal magistrate judge permitted a Muslim inmate to move ahead with his complaint that he was not allowed to attend Jumu'ah services in the absence of a Muslim chaplain or a volunteer to supervise inmate ministers, and prison authorities failed to obtain such a person to supervise services.

In Holman v. Hogue, 2013 U.S. Dist. LEXIS 32849 (WD PA, March 8, 2013), a Pennsylvania federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 42770, Feb. 15, 2013) and dismissed a Muslim inmate's complaint that the county jail in which he was incarcerated does not provide an Imam for religious services.

In Griffin v. Superintendent, 2013 U.S. Dist. LEXIS 37069 (ND NY, March 18, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 42064, Jan. 31, 2013) and dismissed a habeas corpus petition brought by an inmate who was denied parole after refusing to take the  Sex Offender Counseling and Treatment Program because assuming responsibility for the offense in the program would require him to lie in violation of his Jehovah's Witness religious beliefs.

In Mobley v. Coleman, 2013 Pa. Commw. LEXIS 78 (PA Commwlth. Ct., March 27, 2013), the Pennsylvania Commonwealth Court ruled that a Nation of Islam inmate can move ahead with his claims that the lack of separate Nation of Islam services violates his federal and state free exercise rights. But it rejected his claims that his rights under RLUIPA and the Pennsylvania Religious Freedom Protection Act were also violated.

White House Easter Weekend Statements and Releases

President Obama yesterday used his weekly address (full text) to extend Easter and Passover greetings. He said in part:

As Christians, my family and I remember the incredible sacrifice Jesus made for each and every one of us – how He took on the sins of the world and extended the gift of salvation. And we recommit ourselves to following His example here on Earth. To loving our Lord and Savior. To loving our neighbors. And to seeing in everyone, especially “the least of these,” as a child of God. 

Of course, those values are at the heart not just of the Christian faith; but of all faiths. From Judaism to Islam; Hinduism to Sikhism; there echoes a powerful call to serve our brothers and sisters. To keep in our hearts a deep and abiding compassion for all. And to treat others as we wish to be treated ourselves.

The previous day-- Good Friday-- the White House also issued a Statement by the President on Easter Weekend, as well as the Complete 2013 Easter Egg Roll Program and Talent Line-up.

Court Rejects Challenge To World Trade Center Cross In 9-11 Museum

In American Atheists, Inc. v. Port Authority of NY and NJ, (SD NY, March 28, 2013), a New York federal district court rejected constitutional challenges to the inclusion of the World Trade Center Cross—two beams that survived the collapse of the World Trade Center—as part of the  National September 11 Museum in lower Manhattan.  While finding that the decision by the World Trade Center Foundation to include the 17-foot tall cross as part of the displays amounted to state action, the court nevertheless held that the decision does not violate the federal Establishment Clause or Equal Protection Clause, nor does it violate parallel provisions of the New York or New Jersey Constitutions or state anti-discrimination laws. In rejecting the Establishment Clause challenge, the court said in part:

Because a reasonable observer would be aware of the history and context of the cross and the Museum-- especially given that the cross will be housed in the “Finding Meaning at Ground Zero” section, accompanied by placards explaining its meaning and the reason for its inclusion, and surrounded by secular artifacts--  no reasonable observer would view the artifact as endorsing Christianity.

In a press release following the decision, American Atheists said: "We will appeal. We’re fighting it. This is not dead. This is a place where religion destroyed American lives."  CNN reports on the decision.

Appeals Court Remands Church Property Dispute for Determination of Whether Plaintiffs Were Church Members

God's Hope Builders, Inc. v. Mount Zion Baptist Church of Oxford, Georgia,(GA App., March 28, 2013), is a case involving a property dispute between two factions in a Baptist church, one of which wanted the church to retain its Southern Baptist affiliation and feared that under its new pastor it was becoming an Independent Baptist church. The church's sole deacon/director transferred the church's property and other assets to God’s Hope Builders, a non-profit corporation affiliated with the Southern Baptist Convention. The church's current pastor and 36 purported members sued to invalidate the transfer. The trial court held that plaintiffs represented a majority of the church and thus had standing to bring the suit.  It held further that the property and asset transfer was unlawful. The appeals court concluded however that the "the record was insufficient to allow the trial court to definitively determine this crucial threshold issue" of whether plaintiffs represented a majority of church membership.

The appeals court held that in deciding whether plaintiffs were church members, the trial court had misconstrued the provision in the church's bylaws providing:

Any person publicly confessing personal faith in the Lord Jesus Christ, giving evidence of a regenerate heart and adapting [sic] the views of faith and practice held by the church, after baptism shall be admitted into the membership of the church.

The trial court counted 16 people as members even though there was no evidence that they had been baptized.  The trial court also failed to indicate how it determined the total church membership. The appeals court remanded the case instructing the trial court "to definitively determine whether plaintiffs are members of the church pursuant to the church’s bylaws—to the extent that it can do so without engaging in a subjective analysis of ecclesiastical matters—and whether plaintiffs constitute a majority based on the church’s total members so as to have standing to bring suit."

Employer Must Accommodate Sincere Religious Belief Even If Not Part of Formal Religion's Doctrines

In Telfair v. Federal Express Corp., (SD FL, March 28, 2013), a Florida federal district court held that two Jehovah's Witness employees could establish a prima facie case under Title VII of the 1964 Civil Rights Act of failure to accommodate their sincerely held religious beliefs even though their beliefs were not part of formal Jehovah's Witness doctrine.  It is sufficient that plaintiffs subjectively believed that the practice of field ministry and engagement in Bible study on Saturdays was a necessary expression of their religion. However, the court granted defendant's motion for summary judgment, finding that Federal Express had offered plaintiffs reasonable accommodation of their need not to work on Saturdays.

10th Circuit Grants Hobby Lobby En Banc Initial Hearing In Contraceptive Coverage Mandate Challenge

The U.S. 10th Circuit Court of Appeals today issued an Order (full text) in Hobby Lobby Stores Inc. v. Sebelius, (10th Cir., March 29, 2013), granting an unusual initial en banc hearing, rather than an intitial hearing before a 3-judge panel, in the high-profile case. The case involves the appeal of an Oklahoma federal district court's decision upholding application of the Affordable Care Act contraceptive coverage mandate against two related small businesses and their Christian owners. (See prior posting.) The 10th Circuit aso indicated that it would expedite oral argument in the case.  The 10th Circuit previously refused to grant an injunction pending resolution of the appeal. (See prior posting.) Becket Fund issued a press release announcing the court's action.

11th Circuit Upholds City's Prayer Policy

In Atheists of Florida, Inc. v. City of Lakeland, Florida, (11th Cir., March 26, 2013), the U.S. 11th Circuit Court of Appeals upheld against an Establishment Clause challenge the invocation policy formally adopted by Lakeland, Florida City Commission's Resolution 4848 shortly after this lawsuit was filed challenging an earlier informal policy.  The formal policy calls for inviting clergy from all local congregations to volunteer to deliver an invocation prior to the formal opening of city council meetings, and choosing volunteers largely on a first-come, first-serve basis. The court said in part:

[W]e conclude that AOF has failed to demonstrate that the adoption of Resolution 4848 resulted in proselytizing or advancing the Christian religion over all others solely because the speakers who were selected included sectarian references in their prayers. We also conclude that we lack jurisdiction to decide AOF’s challenge to the Lakeland City Commission’s pre-March 2010 speaker selection practice ... because that issue is moot...

The court's conclusion is similar to that of the 9th Circuit in a case handed down the same day. (See prior posting.)

Some Protest German Ban on Good Friday Dancing

Today's Wall Street Journal reports on protests in Germany over "Tanzverbot"-- the ban in each of Germany's 16 states on organized dancing at clubs and discos on Good Friday.  Some state laws also ban dancing on several other religious days throughout the year, including Christmas Eve. In Frankfurt yesterday, some two dozen protesters rallied around the slogan: "I'll let you pray-- you let me dance." However supporters of the ban say it is a way of showing respect for Germany's Christian tradition.

Pennsylvania Bill Would Limit Pseudonyms In Church-State Cases

In Pennsylvania earlier this month, state Representative Tim Krieger, concerned about lawsuits challenging Ten Commandment displays in two Pennsylvania school districts, introduced a bill to prevent litigants from proceeding anonymously in most litigation challenging the public display of religious symbols.  His HB No. 922 provides:

Notwithstanding any other provision of law to the contrary, in a suit to suppress, remove or otherwise inhibit the display or use of religious symbols in public locations, including public schools, the court shall not permit a party to participate by pseudonym and shall not seal the records in the case absent a showing, by clear and convincing evidence, that a party would otherwise suffer serious physical harm.

Seeking co-sponsors, Krieger describes the bill as "Guaranteeing Transparency in Litigation Affecting Religious Liberties."  The Pittsburgh Tribune-Review reports on the bill's introduction.

Court Says City's Restrictions On Feeding Homeless Violate Religious Freedom

In Big Hart Ministries Assoc., Inc. v. City of Dallas, (ND TX, March 25, 2013), a Texas federal district court held that under the Texas Religious Freedom Restoration Act the criteria in Dallas' Food Establishment Ordinance that must be met by organizations feeding the homeless violate the religious exercise rights of two organizations that feed and minister to the unsheltered homeless population in Dallas. The court concluded that the city had not shown a compelling interest in restricting feeding of the homeless by religious institutions, despite the city's argument that the organizations are thwarting the city's attempt to get the homeless off the streets and into clinics or shelters. Dallas News reports on the decision.

Some of Church Officer's Liability To Synod Not Dischargeable In Bankruptcy

Southeastern Pennsylvania Synod of the Evangelical Lutheran Church in America v. Gotwald, (Bkrptcy. ED PA, March 26, 2013), is an opinion in an adversary proceeding filed by the Lutheran Synod attempting to prevent a bankruptcy court from discharging a congregational officer's asserted liability to the Synod growing out of actions surrounding the split off of a Philadelphia congregation from the Synod. After being placed in involuntary synodical administration, Philadelphia's Evangelical Lutheran Church of the Redeemer incorporated a new church entity, transferred church property to it, and then took out a $275,000 loan on the transferred property. Judith Gotwald was an officer of Redeemer and was one of two individuals who controlled the bank account in which the proceeds of the $275,000 loan were deposited.

Redeemer and the Synod both filed suit in state court in Pennsylvania. The Synod succeeded in obtaining an injunction ordering Gotwald to deliver to the Synod Trustees all keys to the Redeemer buildings, and all of Redeemer’s books, records and financial assets. Gotwald only delivered church records and did not deliver control of the bank account.

Meanwhile Gotwald filed a Chapter 13 bankruptcy petition. In this decision, the bankruptcy court concluded that any debt Gotwald may owe arising out of her participation in the mortgage loan on Redeemer property is dischargeable in bankruptcy. However, because Gotwald knowingly failed to comply with the state court injunction (and did not established a defense based on the advice of counsel), damages from her actions in concealing the bank account and dissipating the loan proceeds are not dischargeable.  Liability for those actions constitute a debt to the Synod for "willful and malicious injury" that is nondischargeable under 11 U.S.C. §523(a)(6).

Kentucky Legislature Overrides Veto of Religious Freedom Bill

The Kentucky General Assembly voted Tuesday to override Gov. Steve Beshear's veto of HB 279 (see prior posting), a religious freedom bill that many found vague in its coverage. According to the Lexington Herald-Leader, the vote to override was 79-15 in the Democratic-controlled House, and 32-6 in the Republican controlled Senate. The bill, which is more protective of religious freedom than the analogous federal Religious Freedom Restoration Act, was introduced in response to a Kentucky Supreme Court ruling last year upholding a state law requiring the Amish to display bright orange safety triangles on their buggies. (See prior posting.)  However opponents of the bill say it might allow individuals to invoke their religious beliefs to ignore local ordinances that bar discrimination on the basis of sexual orientation. [Thanks to Blog from the Capital for the lead.]

North Dakota Legislature Submits Personhood Amendment To Voters

The North Dakota Legislative Assembly gave final approval last week to a proposed "Personhood" amendment to the state constitution. Senate Concurrent Resolution 4009 provides:

The inalienable right to life of every human being at any stage of development must be recognized and protected.

State voters will be asked to vote on the amendment in the November 2014 general election. As reported by Policymic, this week Governor Jack Dalrymple also signed three other bills placing restrictions on abortions and, in the view of many, directly challenging Roe v. Wade. As described by the Fargo-Moorhead Forum, House Bill 1305 bans abortions performed solely for gender selection or genetic abnormalities; House Bill 1456 bans abortions if a fetal heartbeat is detected; and Senate Bill 2305 requires physicians who perform abortions to have admitting and staff privileges at a hospital within 30 miles of the abortion facility.

District Court Enjoins County's Opening of Meetings With Christian Prayers

In Hudson v. Pittsylvania County, Virginia, (WD VA, March 27, 2013), a Virginia federal district court issued a permanent injunction against the prayer policy of the Board of Supervisors of Pittsylvania County, Virginia.  Prior to the entry of a preliminary injunction in Feb. 2012 (see prior posting), the Board consistently opened each meeting with a prayer offered by a Board member and making specific Christian references. The court held that plaintiff, a non-Christian who attends Board meetings, has standing to sue. It concluded that the Board's sectarian prayers violate the Establishment Clause. The court's injunction prohibits the Board "from repeatedly opening its meetings with prayers associated with any one religion." An ACLU press release discusses the court's decision. [Thanks to Scott Mange for the lead.]

German Atheist Company Claims Discrimination By US Postal Service Workers

A German company, Atheist Shoes, claims that the U.S. Postal Service is delaying and losing its deliveries because of the company's beliefs. The small company, which designs and produces shoes, was created by a group of atheists. Here is a portion of the company's full account (apparently posted earlier this week) of its experiences in shipping its shoes to customers in the United States:

We have lots of customers in the USA, but sometimes the shoes we send them take longer than they should to arrive, or even go missing. and, when some of our customers asked us not to use Atheist-branded packing tape on their shipments, we started to wonder if the delays were caused by the US Postal Service taking offence at our overt godlessness.

So, we launched an experiment. We sent 178 packages to 89 people, in 49 US states. Each person was sent 2 packages; one sealed with Atheist-branded packing tape, the other with a neutral tape.

They all left Berlin on November 21st, 2012, and, in theory, the branded and unbranded packages should have traveled at exactly the same speed. Atheist-branded packages took on average 3 days longer to reach their destinations. 9 Atheist packages went missing, and just 1 non-branded....

Having run a series of control tests in Germany and Europe, which demonstrate no such bias, the problem appears to lie in the USA and is likely explained by the differential handling of packages by the employees of the US Postal Service....

We're no longer using Atheist-packing tape on our shipments to the USA and delivery times are already improving....

[Thanks to Boing Boing via Scott Mange for the lead.]

9th Circuit: City's Invocation Policy Upheld Despite Christian References In Many Prayers

In Rubin v. City of Lancaster, (9th Cir., March 26, 2013), the U.S. 9th Circuit Court of Appeals rejected an Establishment Clause challenge to the Lancaster, California city council's practice of opening its sessions with a prayer.  The city solicits volunteers from local congregations of all faiths. Plaintiffs however object that a number of invocations still invoked Jesus' name. The court held, however, that sectarian Christian references are not prohibited by the Establishment Clause, so long as the city has not taken steps to affiliate itself with Christianity. The fact that most of the invocations are offered by Christian clergy is merely a function of the city's demographics and choices religious leaders make on whether to respond to the city's invitation to offer an invocation. The court added that asking judges to decide what amounts to a sectarian reference in a prayer: "not only embroils judges in precisely those intrareligious controversies that the Constitution requires us to avoid, but also imposes on us a task that we are incompetent to perform."

State Appeals Court Upholds Taxation Of Part of Church's Family Life Center

In Christ Church Pentecostal v. Tennessee State Board of Equalization, (TN App., March 21, 2013), the Tennessee Court of Appeals upheld a determination by the State Board of Equalization that a portion of a church's multi-million dollar family life center is not exempt from property taxes. The court agreed that the physical fitness center/gymnasium is entitled to only a 50% exemption because it is open for public use on a membership fee basis in addition to its church-oriented uses. It agreed that the center's cafe/bookstore is not entitled to any exemption because it is retail in nature and not used for religious purposes. The court also rejected free exercise, Establishment Clause and equal protection challenges to the tax rulings.