Recent Prisoner Free Exercise Cases

In Grissom v. Werholtz, (10th Cir., May 1, 2013), the 10th Circuit rejected an inmate's complaint that his free exercise rights were infringed when, in order to keep his Celtic cross, he was required to change his religious preference from Catholic to Protestant.

In Strother v. Myers, 2013 U.S. Dist. LEXIS 59574 (ED CA, April 24, 2013), a California federal magistrate judge recommended dismissing a Muslim inmate's complaints that  prayer oil was limited to two ounce bottles; the Kufi prayer cap could be worn only to and from services; and the ban on Muslims holding prayer services in the chapel without a staff member present.

In United States v. Bastien, 2013 U.S. Dist. LEXIS 59615 (ED NY, April 19, 2013), a New York federal district court, by way of a lengthy footnote in its decision, held that an inmate had failed to show that the free exercise his Santeria religion was substantially burdened when he was not provided a hut, herbs, incense, and a designated space and time to build a bonfire for religious worship.

In McKenzie v. Riley, 2013 U.S. Dist. LEXIS 60367 (MD AL, April 29, 2013), an Alabama federal district court rejected an inmate's claim that the Alabama Community Notification Act violated his free exercise rights when a church refused him membership on the basis of his status as a convicted sex offender.

In Chau v. Young, 2013 U.S. Dist. LEXIS 62291 (ND CA, April 30, 2013), a California federal district court permitted an inmate to proceed against the chaplain and members of the prison religious review committee with his complaint that he was improperly removed from the Muslim religious service list. Prison officials claimed he was a member of a disruptive and violent group.

In Kleinfeldt v. Gore, 2013 U.S. Dist. LEXIS 62494 (SD CA, May 1, 2013), a California federal district judge rejected an inmate's claim that his free exercise and RLUIPA rights were infringed when he was served inedible kosher meat.

In Cauthen v. Rivera, 2013 U.S. Dist. LEXIS 62472 (ED CA, April 30, 2013), a California federal magistrate judge permitted a Rastafarian inmate to proceed on his free exercise and RLUIPA claims complaining that his request that a body cavity search be conducted outside the view of female officers was refused and his clothes were forcibly cut away so the search could be performed.

In Dayson v. Caruso, 2013 U.S. Dist. LEXIS 62802 (WS MI, May 2, 2013), a Michigan federal district court rejected a free exercise complaint that Native American prisoners were not allowed to possess tobacco and matches in their personal property and were not allowed to engage in smudging in their cells. It also held that RLUIPA does not authorize damage claims against officials in their individual capacities.

In United States v. Hamrick, 2013 U.S. Dist. LEXIS 63095 (ED VA, May 1, 2013), a Virginia federal district court rejected an inmate's attempt to have prison authorities recognize only his adopted Coptic Orthodox Christian name, and also refused to change his name on his judgment and commitment order.

In Whitman v. Washington Department of Corrections, 2013 U.S. Dist. LEXIS 63116 (WD WA, May 1, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 63084, March 20, 2013) and dismissed a Muslim inmate's complaints, holding that Defendants cannot be held liable under RLUIPA for monetary damages and that any request for injunctive relief under RLUIPA is moot because issues relating to the Ramadan meals and vegetarian supplemental snacks were resolved. Plaintiff's complaint about the timing of the Eid-al-Fitr feast was dismissed for failure to exhaust administrative remedies.

North Carolina School Board Member Resigns Over Litigation Risk From Proposal To Open Meetings With Prayer

The Rockingham County, North Carolina Board of Education regularly opens its meetings with a moment of silence.  However, last month the Board engaged in an hour-long discussion of board member Ron Price's proposal to consider opening sessions with a prayer instead.  A vote on the proposal is scheduled for May 13.  According to the Winston-Salem Journal, one member of the school board isn't waiting for the vote. Board member Leonard Pryor announced Friday that he is resigning from the board. In a written statement decrying political polarization of the school board, Pryor said that the vote on prayer could open board members individually to lawsuits, and he is not willing to jeopardize his family's future over the issue.

No RLUIPA Violation In Zoning Denial For Faith-Based Treatment Facility

In Candlehouse, Inc. v. Town of Vestal, New York, (ND NY, May 3, 2013), a New York federal district court rejected a claim by Candlehouse Teen Challenge, a Christian non-profit organization, that the Town of Vestal violated RLUIPA in refusing to waive or change its zoning rules.  Candlehouse sought to use residentially-zoned property for a Christian faith-based residential treatment facility for young women struggling with addiction or emotional disorders. The court concluded that Candlehouse had not shown a close nexus between the denial of its proposed use of the property as a residence for more than 5 unrelated people and its exercise of religion. However the court allowed Candlehouse to move ahead with claims under the Americans With Disabilities Act and the federal Fair Housing Act alleging intentional discrimination and lack of reasonable accommodation.

California Court Says Bishop's Letter Did Not Waive Dennis Canon For Break-Away Parish

In Rasmussen v. Bunyan, (CA Super. Ct., May 1, 2013), a California trial court gave another win to The Episcopal Church in the long-running controversy over ownership of property of the break-away St. James Parish in Newport Beach, California. (See prior posting.)  In this opinion, the court held that a 1991 letter from the Bishop of Los Angeles specifically giving the Parish permission to purchase a piece of property in its own name "and not held in trust for the Diocese of Los Angeles, or the Corporation Sole" was ineffective to amend Canon 1.7.4 of The Episcopal Church (the Dennis Canon) that provides that parish property is held in trust for the Church and the Diocese.  In response to the break-away church's claim of estoppel based on the promises made by the Bishop, the court said:

The representations [in the 1991 letter] were made to St. James Parish and they were true so long as St James Parish remained a subordinate unit of the Diocese and Episcopal Church. They were not made to "St. James Church," the Local Church involved in this action.... Having disavowed affiliation with the Episcopal Church and the Diocese, the Local Church does not stand in the shoes of St. James Parish.

The Anglican Curmudgeon blog has extensive commentary on the decision. [Thanks to Allan Haley for the lead.]

ACLU Sues On Behalf of Westboro Picketers' Use of American Flag In Demonstrations

The ACLU of Iowa announced last month that it has filed a federal lawsuit on behalf of members of the Westboro Baptist Church-- known for its anti-gay picketing of veterans' funerals-- to prevent enforcement against them of Iowa's flag desecration statute (Iowa Code Sec. 718A.1A) that has already been declared unconstitutional.  The complaint (full text) in Phelps v. Red Oak Police Chief Drew Powers, (SD IA, filed 4/18/2013), alleges that police officials in Red Oak and Council Bluffs, Iowa have threatened to enforce the statutes against Westboro picketers who use American flags in their demonstrations. The complaint alleges:

An absence of respect for the United States flag and the elimination of that flag as an idolatrous symbol are core religious tenents of the Westboro Baptist Church, and a part of the religious message that members of that chuch are bound to convey to others in witnessing God's will according to their faith and practice.

In a 2007 case, an Iowa federal district court held that Iowa's flag desecration and misuse statutes were unconstitutionally void for vagueness. However they remain on the books, and Iowa Code Sec. 718A.6 provides that law enforcement officials may be removed from office for failure to enforce them.

Court Upholds Zoning Denial For Jewish School

In Joan Dachs Bais Yaakov Elementary School v. City of Evanston, (IL Cir. Ct. Cook County, April 30, 2013), an Illinois trial court upheld the city of Evanston's refusal to rezone property for use for an Orthodox Jewish elementary school. The court rejected plaintiff's claim for $3 million in damages for violation of the nondiscrimination provisions of RLUIPA. Evanston Now reports on the decision.

Another Small Business Challenge To Contraceptive Coverage Mandate Filed

Yet another lawsuit has been filed by a family-owned business and its major shareholder (who is also president of the company) challenging the Affordable Care Act contraceptive coverage mandate. Plaintiff Lilli Johnson, a Catholic, is a 50% stockholder of the Ohio company that manufactures air brake components; her 7 children own the remaining 50%.  The complaint (full text) in Johnson Welded Products, Inc. v. Sebelius, (D DC, filed 4/30/2012) alleges that the mandate is inconsistent with plaintiffs' Catholic religious beliefs:

As part of its corporate philosophy, JWP and its owners "subscribe to the Golden Rule".... The Golden Rule carries with it the command from Jesus to love one another as He has loved us. And Jesus loved us first and foremost by doing the will of the Father. Consequently, the Golden Rule is a mandate to follow God's law, which the contraceptive services mandate violates.

As part of its corporate philosophy, JWP and its owners "are continually aware that [their] success depends," in large measure, on their "freedom to exist as a private enterprise." This freedom to exist as a private enterprise includes the freedom to operate JWP consistent with the Catholic religious beliefs and convictions of its owners....

The complaint alleges violations of the 1st Amendment, RFRA and the Administrative Procedure Act. American Freedom Law Center announced the filing of the lawsuit.

Rhode Island Becomes 10th State To Legalize Same-Sex Marriage

AP reports that Rhode Island yesterday became the tenth state to legalize same-sex marriage as Gov. Lincoln Chafee signed the bill on the statehouse steps following its final passage by the House earlier in the day.  The new law (full text) includes provisions protecting the right of religious organizations and clergy to make their own decision regarding same-sex marriage:

[E]ach religious institution has exclusive control over its own religious doctrine, policy, and teachings regarding who may marry within its faith, and on what terms.... No court or ... governmental body ... shall compel, prevent, or interfere in any way with any religious institution's decisions about marriage eligibility within that particular faith's tradition....

[N]o regularly licensed or ordained clergyperson, minister, elder, priest, imam, rabbi, or similar official of any church or religious denomination ... is required to solemnize any marriage....

[A] religions organization, association, or society... shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges ... if ... related to:  (1) The solemnization ... or the celebration of a marriage, and such solemnization or celebration is in violation of its religious beliefs and faith; or  (2) The promotion of marriage through any social or religious programs or services, which violates the religious doctrine or teachings of religious organization, association or society.

Divorce Decree's Provision Allowing Mother To Take Children To Sunday School Does Not Violate Establishment Clause

In Roberts v. Roberts, (TX App., May 1, 2013), a Texas appeals court rejected a husband's claim that the divorce decree dissolving his marriage and appointing both parents as joint managing conservators of the children violated the Establishment Clause by requiring him on Sunday mornings when he had the children to allow his former wife to pick them up to take them to religious classes.  The court concluded

Just as the court has discretion to mold the decree to accommodate activities such as soccer games and music lessons if it finds them in the child’s best interest, it may accommodate a parent’s desire for the children’s religious education, provided that it does not favor one parent’s religion over another or over a preference for no religion.

3rd Circuit: Officer-Director of Closely Held Company Is Not Protected Against Religious Discrimination Under Title VII

In Mariotti v. Mariotti Building Products, Inc., (3d Cir., April 29, 2013), the U.S. 3rd Circuit Court of Appeals dismissed a Title VII religious discrimination claim brought by an officer-director-shareholder of a family owned corporation. Plaintiff Robert Mariotti was terminated as an employee and ultimately not re-elected to the board because of objections by other family members-- who were shareholders of the company-- to his "spiritual awakening." Applying the test developed in a parallel situation in the 2003 U.S. Supreme Court decision in Clackamas Gastroenterology Associates, PC v. Wells, the 3rd Circuit concluded that plaintiff's authority and control over the business preclude his being considered an "employee" covered by Title VII. Thompson Reuters reports on the decision.

Today Is National Day of Prayer

As called for by federal law (36 USC Sec. 119), President Obama this week issued a Presidential Proclamation proclaiming today as a National Day of Prayer. The Proclamation reads in part:

All of us have the freedom to pray and exercise our faiths openly. Our laws protect these God-given liberties, and rightly so. Today and every day, prayers will be offered in houses of worship, at community gatherings, in our homes, and in neighborhoods all across our country. Let us give thanks for the freedom to practice our faith as we see fit, whether individually or in fellowship.

Traditionally, the private National Day of Prayer Task Force has planned a ceremony that is held on Capitol Hill.This year the ceremony begins at 9:00 AM at the Cannon  House Office Building. Other ceremonies will be held around the country.

While the chairman of the Task Force for some years has been Shirley Dobson, each year there is also an Honorary Chairman. This year it is Pastor Greg Laurie of Harvest Christian Fellowship in Riverside, California. According to the Christian Post, LGBT advocacy groups such as Human Rights Campaign and OutServe-SLDN object to the choice of Laurie, calling his views "blatantly anti-LGBT."

Canadian Anglican Bishop Is Suing Blogger For Defamation

In Canada, Michael Bird, Bishop of the Anglican Diocese of Niagara, Ontario, has filed a defamation lawsuit against a blogger whose posts, Bird charges, holds him up to ridicule and contempt. According to yesterday's Hamilton Spectator, the lawsuit, which was filed in February, claims that David Jenkins' blog Anglican Samizdat has described Bird as a weak, ineffectual leader, a thief, an atheist and as someone with a sexual fetish. According to a blog posting by Jenkins, the statement of claim cites 31 separate blog postings.  The suit asks for $400,000 in damages and an injunction against Jenkins publishing further comments about Bishop Bird.  In a statement of defense, Jenkins says that many of the postings cited were humor or satire, and that others were fair comment on a public figure.  He says that the lawsuit is attempting to limit his freedom of expression and religion protected by the Canadian Charter of Rights.

Suit Challenges Maryland County's Invocation Policy At Commissioners' Meetings

A lawsuit was filed today in a Maryland federal district court by two residents of Carroll County (MD) challenging the County’s practice of regularly opening the public meetings of its Board of Commissioners with official Commissioner-delivered sectarian prayers.  The complaint (full text) in Hake v. Carroll County, Maryland, (D MD, filed 5/1/2013) alleges that during 2011 and 2012, some 54 Board of Commissioners meetings were opened with prayers that included specifically Christian references, while none of the prayers delivered during that period mentioned non-Christian deities.  The suit seeks a declaratory judgment that this violates the Establishment Clause and asks for an injunction against further sectarian prayers at Board meetings. The American Humanist Association announced the filing of the lawsuit.

Atheist Material To Be Available To Florida County's High Schoolers

The Freedom From Religion Foundation announced yesterday that the Central Florida Freethought Community will be making materials on Atheism available to students in eleven Orange County, Florida high schools tomorrow. The distribution date was chosen because tomorrow is the National Day of Prayer.  According to yesterday's Orlando Sentinel, the school district's legal counsel concluded that the group should be able to make the materials available on the same terms as World Changers of Florida was allowed to hand out Bibles in the schools in February. The materials will be left on a table in the commons area for students to take. Volunteers may not interact with students. While the school district approved several pamphlets, it rejected others that the atheist group wished to make available. A spokesman for the group said they would prefer that religion be exluded from schools, but "if they're going to have a religious discussion on campus, we need to be a part of it." Friendly Atheist blog has additional details. [Thanks to Scott Mange for the lead.]

Hundreds Exchange Vows As Colorado's Civil Union Law Takes Effect

The Denver Post reports that as Colorado's civil union law (see prior posting) took effect just after midnight this morning, hundreds of gay and lesbian couples applied for licences and exchanged vows.  An LGBT advocacy organization paid to have Denver's building housing the Clerk and Records Office open at midnight.  Denver Mayor Michael Hancock performed a number of the first civil union ceremonies, as did U.S. Rep. Diana DeGette, chair of the House of Representatives LGBT Equality Caucus. Municipal judges and clergy were also available to handle the rush of couples.

Survey Released On Views of World's Muslims On Religion, Politics and Society

The Pew Forum yesterday released a 226-page report titled The World's Muslims: Religion, Politics and Society. Based on surveys in 39 countries between 2008 and 2012, it examines the social and political views of Muslims around the world. Here is an excerpt from the Executive Summary:

In all but a handful of the 39 countries surveyed, a majority of Muslims say that Islam is the one true faith leading to eternal life in heaven and that belief in God is necessary to be a moral person. Many also think that their religious leaders should have at least some influence over political matters. And many express a desire for sharia – traditional Islamic law – to be recognized as the official law of their country.

The percentage of Muslims who say they want sharia to be “the official law of the land” varies widely around the world, from fewer than one-in-ten in Azerbaijan (8%) to near unanimity in Afghanistan (99%). But solid majorities in most of the countries surveyed across the Middle East and North Africa, sub-Saharan Africa, South Asia and Southeast Asia favor the establishment of sharia, including 71% of Muslims in Nigeria, 72% in Indonesia, 74% in Egypt and 89% in the Palestinian territories.

At the same time, the survey finds that even in many countries where there is strong backing for sharia, most Muslims favor religious freedom for people of other faiths. In Pakistan, for example, three-quarters of Muslims say that non-Muslims are very free to practice their religion, and fully 96% of those who share this assessment say it is “a good thing.” Yet 84% of Pakistani Muslims favor enshrining sharia as official law. These seemingly divergent views are possible partly because most supporters of sharia in Pakistan – as in many other countries – think Islamic law should apply only to Muslims. Moreover, Muslims around the globe have differing understandings of what sharia means in practice.

Abuse Victims Sue Religious Order

According to the Chicago Tribune, last Friday 31 men filed 3 lawsuits in Illinois state court against the Congregation of Christian Brothers growing out of sexual abuse decades ago at three high schools. Over half of the plaintiffs claim they were abused by a member of the order who was later convicted of indecent behavior in Washington state. The suit claims that the order shuffled this priest to the 3 high schools involved here.  A number of members of the order and two laymen are also named as defendants. The Christian Bothers filed for federal bankruptcy protection in April 2011. These plaintiffs filed their claims with the bankruptcy court, but so far have received no compensation.

USCIRF Issues 2013 Annual Report

The U.S. Commission on International Religious Freedom today transmitted to the President, Secretary of State and Congressional leaders its Annual Report on religious freedom around the world. The report, which covers the period from Jan. 31, 2012 to Jan. 31, 2013, recommends that the Secretary of State re-designate 8 countries as "countries of particular concern" (CPCs) under the International Religious Freedom Act-- Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan. It also recommended that 7 other countries be newly designated as CPCs-- Egypt, Iraq, Nigeria, Pakistan, Tajikistan, Turkmenistan, and Vietnam. CPCs are those countries in which the most egregious violations of religious freedom have occurred. In Appendices, the Report sets out detailed lists of Bahai and Christian prisoners in Iran; prisoners in Pakistan who have been sentenced to death or life in prison for violation of blasphemy laws; and prisoners in Uzbekistan arrested or sentenced due to their Muslim religious activities.

USCIRF recommends that 8 other countries be placed in Tier 2, as countries where there are increasing violations of religious freedom-- Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos, and Russia. The Tier 2 designation replaces the "Watch List" that appeared in prior USCIRF Annual Reports.

Finally the Report reviews 7 other countries and regions that USCIRF is monitoring because of religious freedom concerns-- Bahrain, Bangladesh, Belarus, Ethiopia, Turkey, Venezuela, and Western Europe.  In its review of Western Europe, the Report says:

During the past few years there have been increasing restrictions on, and efforts to restrict, various forms of religious expression in Western Europe, particularly religious dress and visible symbols, ritual slaughter, religious circumcision, and the construction of mosques and minarets. These, along with limits on freedom of conscience and hate speech laws, are creating a growing atmosphere of intimidation against certain forms of religious activity in Western Europe. These restrictions also seriously limit social integration and educational and employment opportunities for the individuals affected.

The Report also urges the State Department to do more to implement the International Religious Freedom Act, including developing with the Department of Homeland Security a lookout list of aliens who should be denied admission because they are responsible for severe violations of religious freedom.

Holder Speaking To ADL Commits To Protect All Religious and Ethnic Minorities

Attorney General Eric Holder yesterday spoke (full text of remarks) at the Anti-Defamation League's Centennial Summit in Washington, D.C.  In the wake of the Boston Marathon bombings, Holder emphasized the government's commitment to combating those who threaten members of any religious minority.  He said in part:

Although many forms of racial and ethnic prejudice may not be as widespread, or as institutionalized, as they were 100 years ago, a recent ADL report shows that anti-Semitism may once again be on the rise in a number of countries around the world.  By any measure, it remains disturbingly persistent in the United States, with more than 1,000 documented incidents in 2011 alone....

Then, after speaking of the government's ongoing investigation of the Boston bombings, Holder emphasized:

just as we will pursue relentlessly anyone who would target our people or attempt to terrorize our cities – the Justice Department is firmly committed to protecting innocent people against misguided acts of retaliation. 

In the dozen years since 9/11, this commitment has led the Department to investigate more than 800 incidents involving threats, assaults, and acts of vandalism and violence targeting Muslims, Arabs, Sikhs, South Asians, and others who are perceived to be members of these groups....

Only by forging close bonds between these groups can we ensure the safety – and the civil rights – of everyone in this country who may be targeted simply because of who they are, how they look, or what they believe.  And only by taking action to address discrimination and preserve religious liberty can we extend these rights to every individual or community of faith whose freedoms – or lives – are threatened.

Convicted Philadelphia Monsignor Loses Appeal of Trial Errors

Last June, a Philadelphia, Pennsylvania jury found Msgr. William J. Lynn guilty on one count of child endangerment for enabling or covering up clergy sex abuse by others. (See prior posting.) Now, according to the Legal Intelligencer (April 25), a Philadelphia Court of Common Pleas judge has ruled against Lynn in his appeal of various rulings in the case. In a 235-page opinion in Commonwealth v. Lynn, Judge M. Teresa Sarmina held that it was not erroneous to admit into evidence information about 20 priests whose files Lynn reviewed in his role as secretary of clergy for the Archdiocese of Philadelphia. In this role he reviewed sexual abuse allegations. The challenged evidence went to Lynn's knowledge that priests posed a danger and to his motive of shielding the Church from scandal. The court also rejected Lynn's argument that the child endangerment law under which he was convicted did not cover those who did not directly supervise children.

Supreme Court Denies Review In Church Property Ownership Dispute

The U.S. Supreme Court today denied certiorari in Presbytery of Ohio Valley, Inc. v. OPC, Inc., Docket No. 12-907, cert den. 4/29/2013). (Order List.)  In the case, the Indiana Supreme Court, in a 3-2 decision, held that the Presbyterian Church (USA) had failed to show that an express trust attached to property of a break-away congregation.  However, the court remanded the case for trial on  whether an implied resulting trust had been created by the congregation remaining a member of PC(USA). (See prior posting.) The petition for certiorari sought to have the Supreme Court resolve conflicting views of the Presbyterian Church's Property Trust Clause.

Suit Challenges School's Ban On 6th Grader Handing Out Anti-Abortion Flyers

A lawsuit was filed last week in a Minnesota federal district court challenging the policies of a Minnesota public charter school that prohibited a 6th grader from distributing anti-abortion flyers to her classmates during lunch time.  The complaint (full text) in A.Z. v. Nova Classical Academy, (D MN, filed 4/25/2013), recounts that a school administrator told plaintiff and her friends that they could not pass out the flyers because some students find them offensive.  The school took the position that below the high-school level, it can ban political, religious and controversial speech. The lawsuit claims that the 6th-grader plaintiff  has religious beliefs that compel her to share her faith, beliefs and pro-life viewpoints with friends and classmates at school. It asserts that the school is discriminating against plaintiff's religious, pro-life viewpoint since it permits students to hand out other items such as birthday party invitations. The complaint alleges that the school's literature distribution policy violates plaintiff's free speech, free exercise, due process, equal protection and Establishment Clause rights. Alliance Defending Freedom issued a press release announcing the filing of the lawsuit.

Dutch Farewell Celebration For Queen Beatrix Creates Yom Kippur Conflict For Jews

Holland's Queen Beatrix, who recently turned 75, announced in January that after 33 years she is abdicating the throne and handing the crown over to her son. An official event in Rottrdam to wish the Queen a happy retirement has been scheduled for Sept. 14. JTA reported yesterday that Dutch chief rabbi Binyomin Jacobs says the Jewish community is distressed because the celebration coincides with Yom Kippur and thus many Jews will be unable to attend the farewell event.  Jacobs said: "Jews are again faced with a reality in which they don’t belong, and that is painful."  Limited availability of the conference center at which the event will be held makes it unlikely that it will be rescheduled.

New American Sikh Congressional Caucus Formed

IANS reported last week that 28 members of Congress from both political parties have joined the new American Sikh Congressional Caucus. The caucus is co-chaired by Rep. Judy Chu (D-CA) and Rep. David Valadao (R-CA). The Caucus plans to focus on issues such as dress regulations that prevent Sikhs from serving in the military; violence and bullying faced by Sikhs in the U.S.; racial profiling; and employment discrimination. [Thanks to Pew Forum for the lead.]

Recent Articles of Interest

From SSRN:

• Steven J. Willis, Taxes and Religion: The Hobby Lobby Contraceptive Cases, (April 22, 2013).
• Kaimipono David Wenger, 'The Divine Institution of Marriage': An Overview of LDS Involvement in the Proposition 8 Campaign, (St. John's Journal of Civil Rights and Economic Development, Vol. 26, No. 3, p. 705, 2012).
• Ibrahim Nuruddeen Muhammad, Waqf, Values and the Ulama: Towards Harnessing Philanthropy for Community Uplift in Northern Nigeria, (April 19, 2013).

From SmartCILP:

• Conference: The Foundation of Human Rights: Catholic Contributions, Part II. Articles by Jane Adolphe, Paola Bernardini, Richard H. Bulzacchelli, Damian P. Fedoryka, Kevin Hugh Govern, Joseph M. Isanga, Stephen L. Mikochik and Wolfgang Waldstein. 11 Ave Maria Law Review 1-192 (2012).
• Joe Dryden, The Religious Viewpoint Antidiscrimination Act: Using Students as Surrogates to Subjugate the Establishment Clause, (82 Mississippi Law Journal 127-182 (2013)).
• Timothy D. Peters, Comic Book Mythology: Shyamalan's Unbreakable and the Grounding of Good in Evil, (16 Law Text Culture 243-276 (2012)).
• William M. Woodyard & Chad G. Marzen, Is Greed Good? A Catholic Perspective on Modern Usury, (27 BYU Journal of Public Law 185-227 (2012)).
• Legal Punishment as Civil Ritual: Making Cultural Sense of Harsh Punishment. Article by SpearIt; responses by Angela P. Harris, Carlton Waterhouse, Varun Soni. 82 Mississippi Law Journal 1-66 (2013).

Israeli Court Rejects Monastery's Suit Seeking Change In Separation Barrier Location

In Israel last week, after a 7-year legal battle a Special Appeals Committee of the Tel Aviv Magistrate's Court rejected a petition from Palestinian landowners in the town of Beit Jala and representatives of the nearby Salesian (Catholic) monastery to have the planned route of the Israel- West Bank separation barrier changed. According to Haaretz and The Guardian, plans call for the Salesian Nuns Convent in the Cremisan Valley (which houses a small community of elderly nuns) and the convent school to remain on the Palestinian side of the barrier, while the related Salesian monastery and the Convent's farmland will remain on the Israeli side. The court rejected on security grounds an alternative route that would have kept the monastery and farmland on the Palestinian side. This would have caused the barrier to run along lower land. (Also, according to a press release by the Society of St. Yves which brought the case to court, apparently it would have required the court to go beyond its jurisdiction and order dismantling of some of the barrier that has already been built.) Petitioners claim that the route upheld by the court was designed by Israel to facilitate an eventual annexation of the settlement of Har Gilo. The court rejected claims that the planned route violates treaties that Israel has signed with the Vatican. The Society of St. Yves pointed out that at least it had previously been successful in getting the convent and school onto the Palestinian side.

Recent Prisoner Free Exercise Cases

In Sweatman v. Rieben, 2013 Ala. Civ. App. LEXIS 96 (AL App., April 19, 2013), an Alabama state appeals court affirmed the dismissal of a prisoner's complaint that honor dorm inmates are required to attend religious services one a month. Plaintiff did not adequately preserve the issue on appeal.

In Perez v. Thaler, 2013 U.S. Dist. LEXIS 56817 (SD TX, March 18, 2013), a Texas federal magistrate judge recommended that a Jewish inmate be permitted to move ahead with his suit seeking transfer to a different prison unit where kosher meals are available.

In Williams v. Farris, 2013 U.S. Dist. LEXIS 57057 (SD IL, April 22, 2013), an Illinois federal district court dismissed a complaint by a pre-trial detainee of an elaborate conspiracy among his defense attorney, the prosecutor, and the state court to hold him for psychiatric review and medicate him in violation of his Muslim beliefs.

In Harrison v. Tarnoff, 2013 U.S. Dist. LEXIS 57634 (ED CA, April 20, 2013), a California federal magistrate judge permitted an inmate to move ahead with his claim that his free exercise rights were infringed when a prison official would not accept his request for a change to a Muslim name.

In Augustin v. Zych, 2013 U.S. Dist. LEXIS 57694 (WD VA, April 23, 2013), a Virginia federal district court dismissed an inmate's habeas corpus petition that alleged his due process and free exercise rights were infringed when he was not permitted to participate in the Rastafarian Ceremonial Meal.

In James v. Askren, 2013 U.S. Dist. LEXIS 58279 (ED WA, April 23, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 58474, April 8, 2013) and dismissed an inmate's suit alleging that several items he brought with him to prison-- two Qu'rans, two kufis, three bottles of prayer oils, incense sticks, a prayer rug and prayer beads-- were improperly removed from a box and apparently eventually donated to a local Islamic center.

In Smith v. Wildermuth, 2013 U.S. Dist. LEXIS 32906 (ND NY, March 11, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 58390, Jan. 24. 2013) and allowed a Muslim inmate to move ahead with his claim that a corrections officer infringed his rights under RLUIPA and the 1st Amendment when he punished him-- including leading a physical attack on him-- for continuing his prayers instead of immediately speaking to him.

In Morrow v. Kelley, 2013 U.S. Dist. LEXIS 57221 (ED AR, April 22, 2013), an Arkansas federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 57220, April 3, 2013) and permitted an inmate to proceed with his free exercise claim that authorities seized two religious books from his cell.

In Goodwill v. Clements, 2013 U.S. Dist. LEXIS 58038 (ED WI, April 22, 2013), a Wisconsin federal district court dismissed, with leave to amend, a former prisoner's claim that pagan inmates have been denied religious items, services, the use of land and have been punished or ignored.

In Powers v. Washington Department of Corrections, 2013 U.S. Dist. LEXIS 58828 (WD WA, April 23, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 58881, March 29, 2013) and dismissed a Muslim inmate's claims that nutritionally deficient meals during Ramadan violated his 1st and 8th Amendment rights. A claim that the Eid-al-Fitr feast was delayed was dismissed without prejudice for failure to exhaust internal remedies.

9th Circuit Judge Rules Federal Public Defender Entitled To Same-Sex Spousal Health Benefits

In In re Alison Clark, (9th Cir., April 24, 2013), U.S. 9th Circuit Judge Harry Pregerson, acting in his capacity as Chair of the Federal Public Defender Standing Committee, held that the Administrative Office of the United States Courts acted wrongly in denying federal health care benefits to the same-sex spouse of an Oregon assistant federal public defender.  Pregerson held that the rejection violated the health care plan’s specific ban on discrimination on the basis of sexual orientation. He also concluded that Oregon’s constitutional ban on recognizing same-sex marriage, as well as the federal Defense of Marriage Act are unconstitutional as violations of equal protection and substantive due process rights.  He ordered the Administrative Office of the U.S. Courts to submit the public defender’s health benefits election form to the appropriate insurance carrier and, in the future, process applications without regard to the sex of the spouse or whether their marriage is recognized by their home state. He added that if the Office of Personnel Management blocks this relief, then plaintiff is entitled to monetary relief.  The Salem (OR) Statesman-Journal reports on the decision.

Church Members May Challenge Bylaws That Disenfranchised Them

In Congregation of H.O.P.E.-L.I.F.E. Noah's Ark Church, Inc. v. Ramirez, (NY County Sup. Ct., April 23, 2013), a New York state trial court refused to dismiss a suit challenging the election of Richard Ramirez as H.O.P.E.-L.I.F.E.'s pastor.  Plaintiffs alleged that after the death of the church's founder in 2007, Ramirez and his assistant pastor orchestrated Ramirez's appointment as pastor to control the church and the real estate that it owns. Plaintiffs claim that defendants disenfranchised exiting church members and created new bylaws to prevent future challenges to Ramirez. The suit, alleging fraud and negligent misrepresentation, seeks to have the bylaws declared null and void.  The court rejected the argument that plaintiffs are seeking to have a religious issue resolved by a secular court. Allegations claim only violations of the New York Religious Corporation Law. The court also held that while plaintiff "Congregation" is not a formal entity, but merely the original members of the church, they may still sue by amending the caption of the lawsuit to reflect the name of each individual member.

Israeli Court Vindicates "Women of The Wall" Prayer Activities

In Israel yesterday, a Jerusalem District Court, affirming an earlier Magistrate Court's decision, held that police should not have arrested members of "Women of the Wall" for praying at the Western Wall wearing prayer shawls that, in Orthodox Jewish tradition, are only worn by men. (See prior posting.) The Jerusalem Post reports on the court's decision.  The 1981 Regulations for the Protection of Holy Places to the Jews bar performing religious ceremonies at the Western Wall  that are "not according to local custom" or that "may hurt the feelings of the worshipers."  Judge Moshe Sobell, however, citing a 1994 opinion by Israeli Supreme Court Justice Shlomo Levin, ruled yesterday that "local custom" does not necessarily mean Orthodox Jewish practice. As to public disturbance charges, Sobell ruled that Women of the Wall were not suspected of violent or verbal behavior that would disturb the peace or endanger the public.

4th Circuit Says No Jurisdiction To Review Security Clearance Revocation

In Hegab v. Long, (4th Cir., April 25, 2013), the U.S. 4th Circuit Court of Appeals rejected a claim by an employee of the National Geospatial-Intelligence Agency that his top secret security clearance was unconstitutionally revoked.  When Mahmoud Hegab married Bushra Nusairat, a review of his security clearance was conducted.  His clearance was revoked, primarily because Nusairat had been employed by the non-profit Islamic Relief U.S.A.  Judge Niemeyer, in an opinion in which Judge Davis concurred, held that the court lacks jurisdiction to review the merits of a security clearance determination, and that Hegab's constitutional allegations are merely a recharacterization of his challenge to the merits of the determination.

Judge Motz concurred, holding that the court lacked jurisdiction to review an individualized security clearance determination even when a constitutional violation is alleged. Judge Davis concurred, concluding that a colorable constitutional claim had been asserted, but that it is a non-justiciable political question. AP reports on the decision.

Wealthy Wall Street Church Faces Controversy and Litigation

In a front-page article yesterday, the New York Times called national attention to the controversy raging in New York's Trinity Wall Street Episcopal parish over whether the church is spending enough of its extensive wealth on charity and promoting Episcopal belief.  The Village Voice carried a long article last December on the turmoil at the historic Lower Manhattan church.  The Times says that disclosures in a pending lawsuit show that Trinity's assets-- largely Manhattan real estate-- amount to more than $2 billion. The February lawsuit was filed by Jeremy C. Bates, a former leader of the church's Congregational Council who believes the church is being too corporate and not acting on its values. The complaint (full text) in Bates v. Rector, Church Wardens, and Vestrymen of Trinity Church, in the City of New York, (Sup. Ct. NY County, filed 2/11/2013), challenges the manner in which votes are counted in the election of church wardens and vestrymen. Bates wants the court to rule that even in uncontested elections, candidates need to obtain support of a majority of the votes cast in order to be elected. The church argues that in uncontested elections, "no" votes can be ignored.  The suit also seeks access to Trinity's financial statement.

Suit Challenges High School's Assemblies That Promoted Christianity

The American Humanist Association announced yesterday that this week it filed a federal lawsuit against a Flowood, Mississippi high school asserting an Establishment Clause challenge to three mandatory school assemblies that promoted Christianity. The complaint (full text) in M.B. v. Rankin County School District, (SD MS, filed 4/24/2013) alleges that Northwest Rankin High School held mandatory assemblies for various grade levels, led by members of the Pinelake Baptist Church.  The Assembly began with  a video about four troubled young men who found hope through Jesus. Then speakers urged students to embrace Christianity

Supreme Court Hears Arguments In Title VII Retaliation Case Brought By Doctor Claiming Ethnic and Religious Discrimination

The U.S, Supreme Court yesterday heard oral arguments in University of Texas Southwest Medical Center v. Nassar, a Title VII retaliation case. (Transcript of oral arguments.)  42 USC 2000e-3(a) prohibits discrimination against an employee because that employee has opposed a discriminatory employment practice. As explained by Kevin Russell, recapping the argument on SCOTUS Blog, the issue in the case is whether an employee who claims retaliatory action must show that retaliation was the "but for" cause of his termination, or whether it is enough that it was one of several motivating factors. In this case, as summarized by Reuters, a physician of Middle Eastern descent, who was a medical school faculty member and a physician at an affiliated AIDS clinic, resigned his faculty position, complaining of discriminatory comments by his direct supervisor about his ethnic and religious background.  He sought to be employed directly by the AIDS clinic, but the medical school prevented the hiring, claiming that an existing policy required clinic employees to have a university affiliation. SCOTUS Blog has links to all the briefs in the case.

Canadian Court Permits Hasidic Synagogue To Continue Despite Zoning Violation

Canada's National Post reports that last week a Quebec Superior Court ruled that given the "exceptional circumstances," a Hasidic synagogue in Montreal's Outremont neighborhood can continue to operate in violation of the city's zoning bylaw. The half-block on which the converted duplex that houses the synagogue is located is zoned residential. The city has accommodated the synagogue's activities since 1980 despite the zoning violation. The zoning controversy is part of long-running tensions between the Hasidic community and its neighbors. The decision in Montréal (Ville de) c. Congrégation Munchas Elozer Munkas, (Cour Superieure, April 18, 2013) is available online in French.

On Remand From Superme Court, Canadian Trial Court Says Key Witness Must Remove Niqab

As previously reported, last year in the case of R v. N.S., the Canadian Supreme Court held that whether a Muslim woman could be required to remove her niqab (full face veil) while testifying in court in a preliminary hearing should be decided by balancing concerns about trial fairness with religious freedom rights of the witness. In the case, N.S. (now 37 years old) accuses her uncle and cousin of abusing her 25 years ago. The Supreme Court remanded the case to the trial court to apply the balancing factors. Yesterday, according to the Toronto City News, Ontario trial Judge Norris Weisman handed down his decision requiring N.S. to remove her niqab while testifying. His opinion said in part:

I am satisfied by the evidence I have heard … that [her] wish to wear her niqab in court is based on a religious belief that is both sincere and strong Permitting her to wear her niqab while testifying in court does, however, create a serious risk to trial fairness. She is the key witness in the Crown’s case. Her credibility is very much in issue.

Journalist Claims Emory Law Prof-Rabbi Supported His Own Scholarship Through A Second Fictitious Persona

As previously reported, earlier this month an investigative reporter revealed that Emory Law Professor, Rabbi Michael Broyde, had created a sockpuppet (fictitious online identity)-- Rabbi Hershel Goldwasser-- which he used for 20 years to publish in scholarly journals, take part in online dialogues and even join a rival rabbinical organization.  Now the same reporter in an article yesterday on The Jewish Channel charges that Broyde also created a second fictitious persona-- David Tzvi Keter-- and used him in an elaborate fiction to support Broyde's own scholarship.

At the center of this latest controversy is a 2009 article published by Broyde as a special supplement to the journal Tradition.  The article, titled Hair Covering and Jewish Law: Biblical and Objective (Dat Moshe) or Rabbinic and Subjective (Dat Yehudit)?, argues that the prohibition in Jewish law on married women appearing in public with their hair uncovered is a rabbinic, not a biblical, prohibition.  A year after the article appeared, the website Hirhurim published a letter purportedly from David Ketter claiming that several prominent Israeli rabbis he had consulted in 1949 had taken a rather lenient view of a married woman's obligation to cover her hair. In 2011, two rabbis published an article in the journal Dialogue For Jewish Issues & Ideas strongly criticizing Broyde's 2009 article. Broyde responded to the Dialogue article through a posting on Hirhurim. As a preliminary point he said:

I want to note additional sources that support my position which have come to light since my article came out. One, a recollection by David Keter of a conversation he had with Rav Shach, tz”l.

French Parliament Approves Same-Sex Marriage

In France yesterday, the lower house of Parliament, the National Assembly, by a vote of 331-225, approved a bill legalizing same-sex marriage. The bill was approved by the Senate earlier this month. Legifrance has links to the text of the bill, reports and legislative votes (all in French). As reported by CNN and the New York Times, a group of senators have filed a challenge with the Constitutional Council, which has a month to rule on the law's constitutionality.  It is expected that the bill will be upheld and that President François Hollande will sign it in time for the first same-sex marriages to take place this summer. If finally approved, France will be the ninth European country to permit same-sex marriage. The others are Belgium, Denmark, Iceland, the Netherlands, Norway, Portugal, Spain and Sweden. (Background.)

6th Circuit Hears Oral Arguments In Homeschooling Asylum Case

As reported by the Christian Post and AP, the U.S. 6th Circuit Court of Appeals yesterday heard oral arguments in Romeike v. Holder, a case that is being widely followed by homeschool advocates.  At issue is whether asylum should be granted to a German family who came to the United States because of Germany's mandatory school attendance law that does not permit homeschooling.  8 U.S.C. § 1101(a)(42)(A) defines a refugee who may be entitled to asylum as a person who is unable or unwilling to return to his home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."

The Romeikes emphasized in oral argument that theirs is a religious freedom claim. They say in their brief (full text) that they chose homeschooling because of anti-Christian and sexually inappropriate elements of the public school curriculum. They contend:

It is beyond dispute that religious homeschooling is a valid exercise of basic human rights, not just in the United States but also under international human rights norms. Germany is obligated to protect these rights under both its own Constitution and its voluntary adoption of international human rights treaties. Instead, Germany punishes homeschoolers for acts of conscience. The Romeikes will suffer such persecution if they are forced to return to Germany. 

On the other hand, the Justice Department in its brief (full text) contends:

[T]he record contains no evidence suggesting that the government of Germany created the mandatory attendance requirement in order to punish homeschoolers or religious people, or that the law is unfairly administered in such a way that homeschoolers or members of any religion are specifically targeted.

Britain's House of Commons Debates Place of Sharia Law In England

In Britain yesterday, in the House of Commons, MP Kris Hopkins opened a debate on Sharia Law, questioning whether the government planned to recognize and provide resources for Sharia councils. The full text of the debate is available from the House of Commons website. Responding to Hopkins questions, Under-Secretary of State for Justice Helen Grant said in part:

... [S]haria law has no jurisdiction under the law of England and Wales and the courts do not recognise it. There is no parallel court system in this country, and we have no intention of changing the position in any part of England and Wales.

... [S]haria law is the code of personal religious law governing the conduct of Muslims. Those principles can extend to all aspects of people’s lives. There are a number of sharia councils in England and Wales that help Muslim communities resolve civil and family disputes by making recommendations by which they hope that the parties will abide, but I make it absolutely clear that they are not part of the court system in this country and have no means of enforcing their decisions. If any of their decisions or recommendations are illegal or contrary to public policy—including equality policies such as the Equality Act 2010—or national law, national law will prevail all the time, every time. That is no different from any other council or tribunal, whether or not based on sharia law.

Court Rejects Farmer's Religious Objections To Appealing Administrative Order

The Baraboo, Wisconsin News Republic and Wisconsin Ag report that a Wisconsin state trial court judge in a ruling from the bench on Monday rejected a religious freedom defense to an aspect of the four misdemeanor charges against Amish dairy farmer Vernon Hershberger.  The Loganville (WI) farmer is charged with ignoring a Wisconsin Department of Agriculture, Trade and Consumer Protection order to discontinue sales of unpasteurized milk at his farm. The state argues, in part, that Hershberger never appealed the state's hold order.  Hershberger says that his religious beliefs precluded his filing an appeal which, he says, would have been an act of aggression.  Hershberger in the past filed an appeal of his bond conditions in a criminal case; but he says that his religious objections only apply to appeals in civil cases. The court held that Hershberger had not provided sufficient evidence to support his "nuanced" religious objections.

Tax Objector's Religious Freedom Challenges to Indictment Rejected

In United States v. Ogilvie, 2013 U.S. Dist. LEXIS 57195 (D NV, April 19, 2013), a Nevada federal district court rejected attempts by a defendant, indicted on conspiracy charges for failure to pay federal taxes, to invoke religious liberty claims to obtain a dismissal of the indictment. The court rejected defendant's 1st Amendment and RFRA objections to the income tax, saying "the interest in maintaining an efficient and orderly taxation system is compelling justification for burdens on religious freedom." It also rejected his claim that the collection of income taxes violates the Establishment Clause because income taxes are a tenet of the religion of socialism. Finally, the court rejected defendant's objection to the appointment of stand-by counsel, despite defendant's claim that his religious belief does not allow him to be represented by counsel.

USCIRF Wants U.S. At United Nations To Focus On Religious Freedom Violations In 5 Countries

Yesterday the U.S. Commission on International Religious Freedom released the text of a letter that the Commission has recently sent to Secretary of State John Kerry urging the U.S. to raise specific issues during the United Nations Human Rights Council’s Universal Periodic Review this month. USCIRF wants the U.S. to  question violations of religious freedom and human rights in Uzbekistan, Turkmenistan, Russia, Azerbaijan, and Bangladesh.

Second Child of Faith-Healing Couple Dies While Parents Are On Probation For Earlier Death

The Philadelphia (PA) Inquirer yesterday reported on the probation-violation hearing in Common Pleas Court in Philadelphia in the case of Herbert and Catherine Schaible. The couple-- members of the First Century Gospel Church that calls for prayer rather than medical care-- did not seek medical help for their 8-month old son who died last week after days of breathing problems and diarrhea. The couple told police: "Our religion tells us not to call a doctor."  In 2011, the couple were convicted of involuntary manslaughter and placed on probation after their 2-year old son died when they failed to seek medical care for his pneumonia. A condition of their probation was that they seek medical care in the future whenever any of their children became ill. (See prior posting.) Philadelphia's child welfare agency has now placed the couple's 7 other children in foster homes. Prosecutors are awaiting the medical examiner's report in the most recent death before deciding whether to charge the couple criminally.

Pennsylvania's Child Protective Services Law, Sec. 3490.4 provides that a child will not be deemed to be abused where the parent has not sought medical care because of seriously held religious beliefs. However the county may monitor the child and seek court-ordered medidal intervention.

Australian State Exempts Sikhs From Bike Helmet Requirement

In the Australian state of Queensland, the Transport Minister today announced that Transport Operations (Road Use Management – Road Rules) Regulation 2009 is being amended to exempt Sikhs from the requirement to wear a bicycle helmet. The helmets will not fit over turbans that Sikhs wear for religious reasons. According to the Brisbane Times, the amended Regulations will provide an exemption for an individual's longstanding religious beliefs. The change came after a court last month refused to impose a fine or demerit points on the license of cyclist Jasdeep Atwal, a Sikh, who was booked for riding without a helmet. (Brisbane Times, 3/27). The exemption will not apply to motorcyclists.

USCIRF Issues Report On Promoting Religious Freedom In Syria

The U.S. Commission on International Religious Freedom yesterday released a 13-page special report titled Protecting and Promoting Religious Freedom In Syria. The Report argues that: "U.S. leadership is vital, both to press the al-Assad government to cease its severe human rights violations and to ensure that any future government protects human rights and religious freedoms for all Syrians."

Second Suit Filed Against Florist Who Refused To Sell Flowers For Same-Sex Wedding

The ACLU of Washington State announced last week that it has filed a discrimination lawsuit against a Kennewick, Washington florist who refused, because of her religious beliefs, to sell a male couple flowers for their same-sex wedding. The state-court complaint (full text) in Ingersoll v. Arlene's Flowers, (WA Super. Ct., filed 4/18/2013), seeks an injunction and damages for violation of the Washington Law Against Discrimination and the Washington Consumer Protection Act. The suit by the same-sex couple follows a similar one against the florist filed by the Washington state attorney general earlier this month. (See prior posting.)

State Department Issues 2012 Country Reports On Human Rights; China Responds In Kind

On April 19, the U.S. State Department submitted to Congress the 2012 Country Reports on Human Rights Practices. (Press release). Among the issues highlighted in the Introduction to the Reports are Chinese repression of rights of  ethnic Uighurs and Tibetans, as well as anti-Semitism in the Middle East, Europe and Latin America.

China yesterday responded by issuing its own report on the Human Rights Record of the United States in 2012. While focusing mainly on other human rights issues, the report by the State Council Information Office of the People's Republic of China decried religious discrimination in the U.S. against Muslims.

Recent Articles of Interest

From SSRN:

• Marshall Thompson, Tortured Morals: The Illegality and Immorality of the Enhanced Interrogation Program from an LDS Perspective, (April 10, 2013).
• Patrick M. Garry and John P. Garry, The Establishment Clause and the Making of a New Secularism: A Review Essay on Church, State and the Crisis in American Secularism by Bruce Ledewitz, (Duquesne University Law Review, Vol. 51, No. 1, 2013).
• Brian Michael McCall, The Church and the Usurers: Unprofitable Lending for the Modern Economy, (April 10, 2013).
• Donna Carol Litman and Steven H. Resnicoff, Jewish and American Inheritance Law: Commonalities, Clashes, and Estate Planning Consequences,(in L. Moscovits (ed.), Jewish Law Association Studies XXII (2012)). 
• Robert K. Vischer, Do For-Profit Businesses Have Free Exercise Rights?, (Journal of Contemporary Legal Issues, 2013, Forthcoming).
• Douglas Laycock and Thomas C. Berg, Protecting Same-Sex Marriage and Religious Liberty, (99 Virginia Law Review In Brief (2013)).
• Mark D. Rosen, Religious Institutions, Liberal States, and the Political Architecture of Overlapping Spheres, (University of Illinois Law Review, Forthcoming).
• James David Nelson, Conscience, Incorporated, (April 8, 2013).
• Nelson Robert Lund, Same-Sex Marriage in the Courts of Law and Reason, (Engage: The Journal of the Federalist Society's Practice Groups, Vol. 14, No. 1, pp. 34-35, February 2013).
• Gianluca Parolin, (Re)Arrangement of State/Sharī'ah Relations in Egypt's Constitutional Transition (April 15, 2013). NYU School of Law, Public Law Research Paper No. 13-15.
• Michael Stokes Paulsen, The Plausibility of Personhood, (74 Ohio State Law Journal 14 (2012)).
• Nina J. Crimm, What Could Globalization Mean for Domestic Islamic-Socio-Political Activism?, (36 Fordham International Law Journal 600 (Symposium Issue, 2013).
• François-Xavier Licari, L'Arbitrage Rabbinique, Entre Droit Talmudique Et Droit Des Nations (Rabbinic Arbitration, Between Talmudic Law and the Law of the Gentiles), (Revue de l'arbitrage 2013, pp. 57-120). 

Court Grants Preliminary Injunction Barring Enforcement of Contraceptive Coverage Mandate Against Small Business

A Pennsylvania federal district court last week issued a preliminary injunction baring the federal government from enforcing the Affordable Care Act contraceptive coverage mandate against Seneca Hardware Lumber Co., Inc. and its Catholic owners. In Geneva College v. Sebelius, (WD PA, April 19, 2013), the court held that under RFRA the mandate imposes a substantial burden on the business owners who are being forced to choose between violating their deeply held religious beliefs and causing their closely held corporation to terminate their health insurance coverage. It also concluded that the government had not shown a compelling interest in refusing to exempt this company from the mandate:

In light of the myriad exemptions to the mandate’s requirements already granted and conceding that the requirement does not include small employers similarly situated to SHLC, the requirement is “woefully underinclusive” and therefore does not serve a compelling government interest.

(See prior related posting.)

Recent Prisoner Free Exercise Cases

In Davis v. Abercrombie, 2013 U.S. Dist. LEXIS 52479 (D HI, April 11, 2013), an Hawaii federal district court allowed three Native Hawaiian inmates to proceed with claims seeking to practice their Native Hawaiian religion in various ways. Most of the claims brought by several other Native Hawaiian inmates were dismissed for failure to exhaust administrative remedies. However state law claims were permitted to proceed.

In Jenkins v. Knight, 2013 U.S. Dist. LEXIS 52613 (SD IN, April 11, 2013), an Indiana federal district court dismissed an inmate's claims, among other things, that his free exercise and RLUIPA rights were infringed when he was removed as spokesperson for the Native American Circle.

In Wells-Bey v. Kopp, 2013 U.S. Dist. LEXIS 54839 (D MD, April 16, 2013), a Maryland federal district court rejected a Muslim inmate's complaint that the Department of Corrections violated his free exercise rights by providing an lacto-ovo diet instead of a non-vegetarian Halal diet. However the court refused to dismiss his complaint that the diet was inappropriate for him because of an allergy to eggs.

In Wilson v. Padgham, 2013 U.S. Dist. LEXIS 54768 (ND FL, April 17, 2013), a Florida federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 54765, April 5, 2013) and dismissed under the "three-strike" rule an inmate's in pauperis lawsuit challenging as free exercise and RLUIPA violations the prison's  grooming policy, lack of space for daily prayers, threats of retaliation, and a ban on congregate prayer in the housing dormitory.

In Stevens v. Yates, 2013 U.S. Dist. LEXIS 55937 (ED CA, April 17, 2013), a California federal magistrate judge dismissed, with leave to amend, allegations by a Muslim inmate that he was denied access to the chapel and to a Muslim chaplain, that he was temporarily denied a head covering, and that he had a dispute regarding the date on which Ramadan ended.

Boy Scouts Propose To Lift Ban On Gay Members, But Still Bar Gay Leaders

On Friday, the National Executive Committee of the Boy Scouts of America sent a letter to the approximately 1400 voting members of its National Council forwarding a lengthy Resolution (full text) that provides in part:

No youth may be denied membership in the Boy Scouts of America on the basis of sexual orientation or preference alone.

The Resolution will be voted on at the Annual Meeting in May. Under the proposal, the Scouts will maintain its current policy that bars from adult leadership positions "individuals who are open or avowed homosexuals or who engage in behavior that would become a distraction to the mission of the BSA." The Boy Scouts has also posted a Memberships Standards Executive Summary and a Frequently Asked Questions document on the controversial proposal that emerged after an extensive study of attitudes. (Seer prior related posting.) The New York Times reports that the new proposal has drawn criticism from conservative Christian groups who accuse the Scouts of caving in to political pressure. Meanwhile gay rights groups criticized the decision to maintain the ban on homosexual scout leaders, saying it perpetuates stereotypes about gay men. Churches, many (but not all) of which consider homosexual conduct to be sinful, sponsor many Boy Scout troops around the country. (See prior posting.)

Overruling Magistrate, Court Says Clergy-Penitent Privilege Applies To Unordained Minister

In United States v. Dillard, (D KA, April 19, 2013) a Kansas federal district court rejected a magistrate judge's ruling (see prior posting) and held that:

the modern federal clergy-penitent privilege is not restricted to persons with formal ordination. The policies underlying the privilege apply with equal force to lay persons who regularly conduct religious counseling sessions.

Defendant Angel Dillard ministers to inmates in the Sedgwick, Kansas County Jail through Christian Ministries to Offenders, Inc. (CMO).  Dillard's communications with Scott Roeder, who is serving a life sentence for of murdering abortion provider Dr. George Tiller, and with another inmate, are sought by the government in a civil case it has filed against Dillard charging that she sent a threatening letter to an abortion provider.

In reaching its conclusion that Dillard's communications were privileged, the court relied both on the Kansas statute (K.S.A. 60-429) which privileges penitential communications with "regular" as well as with "duly ordained" ministers, and on proposed Rule 506 of the Federal Rules of Evidence. The court said:

Limiting the federal clergy-penitent privilege to formally ordinated ministers would have the inescapable effect of shutting down prison ministry programs not only in Kansas, but throughout the nation. Programs such as CMO depend on the volunteer services of lay ministers, and could not survive if the private communications between prisoners and ministry volunteers were unprotected from government scrutiny. As a consequence, ministry programs serving thousands of inmates would be directly imperilled.

Missouri House of Worship Protection Act Upheld

In Survivors Network of Those Abused by Priests v. Joyce, (ED MO, April 19, 2013), a Missouri federal district court upheld the constitutionality of Missouri's House of Worship Protection Act. The statute prohibits intentionally and unreasonably disturbing a worship service or intentionally interfering with a person seeking access to a house of worship or exercising religious rights there. The challenge to the law was filed by two groups. One (SNAP) regularly pickets and leaflets outside of churches where clergy alleged to have sexually abused children have served. The other (Call To Action) engages in peaceful vigils outside Catholic churches supporting issues such as LGBT equality and equality for women in the Church.  Granting summary judgment to defendants, the court concluded that the statute is a content-neutral time, place and manner regulation that is neither impermissibly vague nor constitutionally overbroad. (See prior related posting.)

Penalty Enhancement For Meth Labs Near Churches Survives Establishment Clause Attack

In People of the State of Illinois v. Stewart, (IL App., April 16, 2013), an Illinois state appeals court, following state Supreme Court precedent, upheld a state statute (720 ILCS 646/15(b)(1)(H) that provides an enhanced criminal penalty for participating in the manufacturing of methamphetamine within 1,000 feet of a place of worship or parsonage.  Rejecting an Establishment Clause challenge, the court said: "The penalty enhancement... acts not as an establishment of religion but, rather, as a protection for those people particularly vulnerable to the evils of drug trafficking."

Oklahoma Governor Signs Bill Limiting Use of Foreign Law In State Courts

Just days after the Oklahoma legislature passed the bill, Oklahoma Governor Mary Fallin on Friday signed HB 1060 (full text), a bill that limits application of foreign law by Oklahoma courts. (KRMG News). Largely tracking the American Law for American Courts Model Act, the new Oklahoma statute bars courts, arbitration tribunals or administrative agencies from basing their rulings or decisions on foreign law that would not grant the affected parties the same fundamental rights and liberties that are guaranteed by the U.S. and Oklahoma Constitutions. Among the qualifications on the Act's broad ban is one that attempts to protect religious organizations adjudicating ecclesiastical matters. Last year, the U.S. 10th Circuit Court of Appeals held that an earlier Oklahoma constitutional amendment aimed more directly at the application of Sharia Law violated the Establishment Clause. (See prior posting.)

Pastor's Suit For Defamation Dismissed Under Ecclesiastical Abstention Doctrine

In Torralva v. Peloquin, (TX App, April 18, 2013), a Texas appeals court held that the ecclesiastical abstention doctrine and the ministerial exception bar defamation, interference with contract and infliction of emotional distress claims brought by a Baptist associate pastor against his church's former head pastor, a deacon and three other congregants.  Plaintiff Armando Torralva alleged that defendants attempted to destroy his character and ruin him socially by claiming that a picture he e-mailed to the church's head pastor amounted to pornography.  The picture, from publicity by another church for a program for married couples, showed a fully clothed couple lying in bed embracing, and was captioned "Ignite Your Marriage ... Mattress Not Included."

In dismissing Torralva's claims, the appeals court said:

Each of Torralva’s causes of action are based on appellees’ allegedly taking action against him for conduct that they viewed as inappropriate for an associate pastor. There was no evidence adduced that Torralva’s reputation was harmed outside of the Church community.... Thus, trial on Torralva’s claims would require an analysis of "church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required." ... The ecclesiastical abstention doctrine precludes subject matter jurisdiction over those causes of action.

Virginia High Court Largely Awards Break-Away Congregation's Property To The Episcopal Church

In The Falls Church v. Protestant Episcopal Church in the United States of America, (VA Sup. Ct, April 18, 2013), the Virginia Supreme Court affirmed in part a trial court's opinion (see prior posting) and ordered that property of a break-away congregation be conveyed to The Episcopal Church (TEC) and the Episcopal Diocese in Virginia. While applying a "neutral principles of law" approach to the property dispute, the Supreme Court disagreed with the trial court's analysis of Virginia law. The Supreme Court held that statutory changes enacted by the Virginia legislature in 1993 repealed the state's prior limitations on the creation of denominational trusts and validated property conveyances made for the benefit of any diocese or religious organization. The Supreme Court went on to hold that after this change, the Episcopal Church's "Dennis Canon" supports the imposition of a constructive trust on the local congregation's property in favor of TEC. The Court remanded for further proceedings the issue of who is entitled to personal property acquired by the local congregation after its vote to disaffiliate from TEC.

Justice McClanahan filed a concurring opinion arguing that "the Diocese acquired their interest in the disputed church property, not merely by a constructive trust, but rather by an express trust pursuant to the Dennis Canon..." He reached this conclusion by arguing that prior Virginia law that prohibited the enforcement of express denominational trusts violated the Establishment Clause.

Reporting on the decision, the Washington Post places the lengthy and complex litigation involving one of the country's largest Episcopal churches in some context:

The Virginia Supreme Court ruled for the Episcopal Church on Thursday in a bitter, multi­million-dollar property dispute with a conservative congregation that had left the denomination over the Bible’s view of homosexuality and other issues....

On Thursday, the Supreme Court affirmed that the property was rightly given to the mainline denomination but said some of the nearly $3 million in church coffers belongs to the Falls Church Anglican congregation.

  [Thanks to Bob Tuttle for the lead.]

Cross Dispute Settled By Auction of Public Land To Non-Profit Group

Yesterday's Riverside, California Press-Enterprise reports on last week's unusually amicable resolution of a dispute over the cross atop Riverside’s Mount Rubidoux.  The mountain has been a public park since 1955. Last summer, Americans United for Separation of Church and State complained about the cross, and the city in response decided to sell off by auction the .43 acre plot of land on which the cross stands. At the April 11 auction, Totally Mt. Rubidoux, a coalition of three local nonprofits formed to preserve the cross, cast the winning bid of $10,500. (Press-Enterprise 4/11) Americans United says it is satisfied because "this cross will no longer be on public property, so it will no longer send a message that the city favors the Christian religion."

Unusual Fall-Out and Comments Follow Food Company's Challenge To ACA Mandate

As previously reported, last month Eden Foods, a natural and organic food company, filed what seemed to be a clone of the numerous lawsuits by Christian-owned companies challenging the Affordable Care Act contraceptive coverage mandate. However, yesterday Salon reported on the far-from-typical subsequent developments. First, Salon reports a "massive backlash among [Eden's] liberal customer base."  Much of the opposition appeared as comments on Eden's Facebook page.  Second, in an earlier Salon interview Eden CEO Michael Potter cast substantial doubt on whether his objections were really religion-based.  Potter said:

I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control. What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.

Interfaith Service In Boston Marks Marathon Bombing

Yesterday, in the aftermath of the Boston Marathon bombings, Boston's Cathedral of the Holy Cross hosted a Healing Our City Interfaith Service. The schedule of speakers included the mayor of Boston, the governor of Massachusetts, President Barack Obama, and religious leaders representing the Catholic, Greek Orthodox, Protestant, Jewish and Muslim faiths. The Catholic Sun reports on the service.  In his remarks (full text) President Obama said in part:

Scripture tells us to “run with endurance the race that is set before us.”  As we do, may God hold close those who’ve been taken from us too soon.  May He comfort their families.

The White House reports:

After the service, President and Mrs. Obama stopped by Boston's Cathedral High School to thank some of Boston's first responders and volunteers for their tireless efforts over the past few days, and then the President visited patients, their families and hospital staff at Massachusetts General Hospital, while the First Lady stopped by Boston Children’s Hospital and Brigham and Women’s Hospital.

The full text of remarks by Governor Deval Pattick and Cardinal Sean O'Malley are also available. C-Span has a video of the entire service.

Christian Club's Suit Against Snow College Settled

The Salt Lake Tribune reported yesterday that a Utah federal district court has approved a settlement in Solid Rock Christian Club v. Wyatt.  The suit, against Ephraim, Utah's public 2-year Snow College, claimed that the school's policy unconstitutionally treated student groups affiliated with religious institutions differently than other student groups. The school relegated to "affiliate" status student groups that are affiliated with commercial, for-profit or religious institutions, and also placed limits on plaintiffs' participation in the "Paint the Town" Homecoming activity. (See prior posting.) Under the settlement, the school distributed a new handbook that eliminates the tiered classification of student groups and changes the method by which funds are distributed to student organizations. The school also affirmed that while it currently does not plan to sponsor the "Paint the Town" event, if it does so in the future it will not restrict religious themes or imagery. The school also paid $12,000, of which all but $800 went for attorney's fees to Alliance Defending Freedom.

5th Circuit: Factual Issues Require Trial In Bus Driver's Religious Accommodation Claim

In Antoine v. First Student Inc., (5th Cir., April 10, 2013), the U,S, 5th Circuit Court of Appeals held that disputed issues of fact require that a Title VII religious accommodation claim brought by a Seventh Day Adventist be remanded for trial to the Louisiana federal district court.  At issue is the attempt by plaintiff, a school bus driver, to adjust his work shift to avoid working after sunset on Friday afternoons when his Sabbath began. The court held that factual issues remain as to whether the bus company, First Student, Inc., reasonably accommodated driver Robert Antoine's religious needs:

First Student asserts that it was solely Antoine’s responsibility to find a replacement driver, while Antoine asserts that First Student offered to find a substitute driver and then failed to follow through on this offer. As to the second issue, First Student contends that the CBA [collective bargaining agreement] generally prohibits voluntary shift swaps, but that it intended to circumvent this general prohibition if Antoine first found someone to take his shift. On the other hand, Antoine asserts that First Student never pursued a preliminary agreement from the union to consider any alterations to the CBA in order to accommodate him. 

Adventist News Network reports on the decision.

9th Circuit Oral Arguments Available In Challenge To California Teen Reparative Therapy Ban

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in two cases challenging California's ban on mental health care professionals providing so-called reparative therapy to teens.  California last year enacted the Sexual Orientation Change Efforts provision (full text) that bars mental health care providers from engaging in efforts to change the sexual orientation of anyone under 18 years of age. Separate federal district court judges took opposing positions on whether the law violates free expression protections. (See prior posting.) Appeals in both cases were heard yesterday. The audio of the arguments in Pickup v. Brown and in Welch v Brown is available from the 9th Circuit's website. AP reports on the oral arguments.