Religion Clause

Friday, May 17, 2013

Rabbi's Sex Assault Conviction May Encourage Others In New Jersey Orthodox Community To Bring Complaints To Civil Authorities

AP reported earlier this week that a guilty plea in the sexual assault trial of former yeshiva teacher Rabbi Yosef Kolko "may be a watershed for the prosecutor's office and the Orthodox Jewish community in Lakewood [New Jersey]." The plea came Monday, part way through Kolko's trial, after two others claiming to have been abused by Kolko contacted the prosecutor's office last week. The Orthodox Jewish community in Lakewood has been reluctant to report sex abuse complaints to civil authorities, preferring instead to handle them through rabbis and rabbinical courts. (See prior posting.) In this case, the young victim's family had been ostracized by the community for taking the case to civil courts. Senior Assistant Prosecutor Laura Pierro said she hoped that this trial would open the door to others in the community cooperating with prosecutors.

Convictions Handed Down In Securities Fraud Conspiracy That Used Ministers To Sell Stock

The U.S. Attorney's Office for the Western District of Missouri announced Wednesday that 5 defendants were convicted in federal court in a $10.2 million securities fraud conspiracy involving the use of clergy to sell shares in Petro America Corporation. Nine other plead guilty in the conspiracy. According to the press release:

The defendants used religious language in their pitches and often recruited through churches. [Defendant] Hawkins cultivated relationships with numerous ministers, whom he dubbed the Ministers Alliance. The Ministers Alliance was a group of about 15 ministers (most of whom resided in the Kansas City area) who supported and promoted Petro America. He gave them white fedora hats and millions of Petro shares, which he encouraged them to sell secretly, accepting kick-backs from the proceeds. Members of the Ministers Alliance sold Petro shares to their congregants and others. The Ministers Alliance frequently met at restaurants and participated in weekly conference calls with hundreds of investors in dozens of states.

Louisiana Appeals Court Upholds Election, Injunctive Relief In Baptist Church Dispute

In Thornton v. Carthon, 2013 La. App. LEXIS 923 (LA App., May 15, 2013), a Louisiana state appeals court affirmed the trial court's decision confirming the court-ordered election of the board of trustees of Shreveport's Baptist Temple Church. Some of the newly elected trustees had been attempting to call a membership meeting to oust Rev. Alvin Carthon as the church's pastor. The trial court found, and the appeals court agreed, that a membership meeting purporting to vote Carthon out had been premature, but that Carthon should be enjoined from entering the church without court approval and from acting on behalf of the church in any natter. Affirming the trial court's judgment, the appeals court said: "The court's rulings sanctioning the newly-elected Board and holding Rev. Carthon's immediate participation in abeyance were clearly aimed at allowing the Board and church membership time to deliberate and choose the ministerial leadership for the church."

Kansas City Diocese Settles A Child Pornography Lawsuit

The Kansas City Star reported that on Tuesday the Kansas City-St. Joseph (MO) Catholic Diocese has agreed to settle a child pornography lawsuit filed against it, Bishop Robert Finn and Catholic priest Shawn Ratigan, for $600,000. The suit was brought by parents of a girl who claimed that Ratigan took sexually explicit photos of the girl when she was 2 years old, and distributed them over the Internet. Ratigan plead guilty to child pornography charges last year, and is awaiting sentence. Bishop Finn was found guilty last year on misdemeanor charges of failing to report suspicion of child abuse. (See prior posting.)

In the civil suit settled this week, the only claim the court permitted to move ahead was one alleging that Bishop Finn and the diocese possessed child pornography by viewing and making copies of Ratigan's photos. The court must still approve the structure of the settlement, which will be covered by insurance. The diocese has been named in dozens of priest sexual abuse lawsuits, including three others involving Ratigan.

Thursday, May 16, 2013

Florist Counter-Sues State AG Over Right To Refuse To Create Floral Arrangements For Same-Sex Wedding

As previously reported, last month the Washington state attorney filed a consumer protection lawsuit in state court against a retail florist for refusing, because of her religious opposition to same-sex marriage, to furnish floral arrangements for a customer's same-sex wedding. Now defendants Arlene's Flowers, Inc. and its owner Barronelle Stutzman, have not merely filed an answer, but at the same time filed a third-party complaint, counter-suing the state attorney general for violating the shop owner's free speech and free exercise rights under the U.S. and Washington state constitutions. The third party complaint (full text) in State of Washington v. Arlene's Flowers Inc., (WA Super Ct., filed 5/16/2013) alleges in part:

Barronelle is being sued, and she fears future suits by the Attorney General, for following her conscience in her work, which has resulted in a chilling effect in the exercise of her constitutional rights and a chill in the exercise of constitutional rights by other small business owners in Washington.

Alliance Defending Freedom issued a press release announcing the filing of the counter-suit.

In Wake of IG Report, Evangelical Leaders Charge IRS Also Dealt Improperly With Religious Non-Profits

As widely reported, this week the Treasury Department's Inspector General for Tax Administration issued a report (full text) concluding that the Internal Revenue Service used inappropriate criteria in reviewing applications of Tea Party and similar conservative organizations for tax exempt 501(c)(4) status. Now, two well-known Christian evangelical leaders are claiming that the IRS also dealt improperly with certain conservative religious non-profits.

In a May 14 press release, Dr. James Dobson said that Family Talk Action Corp., formed to provide Christ-oriented advice and education and speak on cultural issues that affect the family, filed its Form 1024 application for 501(c)(4) status in September 2011. In March 2013 the group still had not received its determination letter. The attorney who filed the application had a conversation with the IRS reviewing agent. According to the press release:

Ms. Medley [the IRS agent] responded saying, I don't think your Form 1024 ... will be granted because Family Talk Action is "not educational" because it does not present all views. She continued, saying that Family Talk Action sounded like a "partisan right-wing group" because, according to Ms. Medley, it only presents conservative viewpoints. She then added, "you're political" because you "criticized President Obama, who was a candidate."

Opposing Views has more on the case.

Meanwhile, as reported by CNN, on May 14 prominent evangelical leader Franklin Graham wrote President Obama (full text of letter) complaining of tax audits last year. After the Billy Graham Evangelistic Association ran full page ads supporting North Carolina's proposed Marriage Amendment, the Association as well as an affiliated group, Samaritan's Purse, were notified by IRS that a review would be conducted of their tax status as Section 501(c)(3) organizations for the 2010 tax year. Franklin wrote:

I do not believe that the IRS audit of our two organizations last year is a coincidence-- or justifiable.

UPDATE: On May 17, the Thomas More Society (TMS) announced that it has submitted 150 pages of materials (full text) to the House Ways and Means Committee which, according to TMS, shows IRS harassment of pro-life organizations.

6th Circuit Denies Asylum To German Family Claiming Persection of Home Schoolers

In a case that has been closely followed by home-school advocates, the U.S. 6th Circuit Court of Appeals this week denied asylum to a German family that claimed persecution because of Germany's ban on home schooling. As reported by RNS, the evangelical Christian family prefers home schooling largely for religious reasons. In Romeike v. Holder, (6th Cir., May 14, 2013), in an opinion by Judge Sutton, the court said in part:

When the Romeikes became fed up with Germany’s ban on homeschooling and when their prosecution for failure to follow the law led to increasingly burdensome fines, they came to this country with the hope of obtaining asylum. Congress might have written the immigration laws to grant a safe haven to people living elsewhere in the world who face government strictures that the United States Constitution prohibits. But it did not. The relevant legislation applies only to those who have a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). There is a difference between the persecution of a discrete group and the prosecution of those who violate a generally applicable law. As the Board of Immigration Appeals permissibly found, the German authorities have not singled out the Romeikes in particular or homeschoolers in general for persecution.

Judge Rogers wrote a short concurring opinion in addition to joining the majority opinion.

Georgia Governor Orders Gideon Bibles Returned To State Park Cabins

AP reports today on the controversy that has arisen in the state of Georgia over whether it is appropriate to permit Gideon Bibles to be placed in rooms of cabins at state-owned resorts. Atheist Ed Buckner complained about the Bibles after his family visited a state part to celebrate his son's birthday. In response, officials removed the Bibles while the state attorney general looked into the matter. The attorney general soon issued an opinion saying that the Bibles are allowable, and yesterday Gov.Nathan Deal ordered them all returned to cabins in the state parks. The governor issued a press release saying:

Out of an abundance of caution to avoid potential litigation, the commissioner removed the Bibles from rooms – though they were still available on site – after a complaint from a visitor. The attorney general and I agree that the state is on firm legal footing as we move to return the Bibles to the rooms. These Bibles are donated by outside groups, not paid for by the state, and I do not believe that a Bible in a bedside table drawer constitutes a state establishment of religion. In fact, any group is free to donate literature.

UPDATE: American Atheists announced (May 17) that it is taking the Governor up on his offer and is sending "enough popular atheist books to place one in every state park cabin in the state."

Tuesday, May 14, 2013

Christian Evangelists Escorted From 2012 Arab International Festival Lose Civil Rights Suit

In Bible Believers v. Wayne County, (ED MI, May 14, 2013), a Michigan federal district court dismissed a suit for declaratory and injunctive relief and nominal damages brought by a group of traveling Christian evangelicals who were escorted away by police and threatened with dsorderly conduct citations at last year's Arab International Festival in Dearborn, Michigan. The group preached, using a megaphone, for 90 minutes, insulting and denouncing Islam. Festival attendees-- particularly children-- began hurling objects at the preachers. Police officials tried to stem the crowd. Eventually, however, fearing someone would be injured, they ordered the preachers to leave. The court concluded that police acted in a content-neutral manner and were justified in stopping the speakers because of the actual violence that occurred, even if the violence stemmed from the crowd's disagreement with the speakers. The court said:

Even when construing the evidence in the light most favorable to Plaintiffs, the evidence also suggests that sheer size of the crowd and expanse of the Festival grounds made it unfeasible to proceed against the crowd.

The court also rejected plaintiffs' free exercise and equal protection claims, and held that even if there was a constitutional violation, municipal liability is inappropriate.

Plaintiffs have filed an immediate Notice of Appeal to the 6th Circuit. The American Freedom Law Center issued a press release on the decision. The Dearborn Press and Guide reported on the decision.

EEOC Sues Medical Services Company That Required Employees To Participate In Scientology Classes

The EEOC announced last week that it has filed a Title VII lawsuit against the Florida-based Dynamic Medical Services, Inc. for requiring its employees to attend courses that used Scientology religious practices. The suit-- alleging hostile work environment and failure to accommodate employees' religious beliefs-- claims that the Miami company that provides medical and chiropractic services required its employees to spend at least half their work days in courses that involved practices such as screaming at ashtrays or staring at someone for eight hours without moving. Employees were instructed to attend courses at the Church of Scientology, and one employee was required to under go an E-meter "audit." Two employees who refused to participate were terminated.

Suit Against Church Over Pastor's Sexual Assault Dismissed on Collateral Estoppel Grounds

In Liddie v United Community Church of God, (NY Queens Co Sup Ct, April 30, 2013), a New York trial court dismissed on res judicata and collateral estoppel grounds a suit against United Community Church by a woman who claims she was sexually assaulted by the church's pastor while attending a bible study class at the the church. The court found that the issues raised had already been decided on the merits in a prior action in which the court dismissed the claims against the church, finding they failed to state a cause of action.

NEW EEOC Commissioner Sworn In

Yesterday, Jenny R. Yang was sworn in as a Commissioner of the U.S. Equal Employment Opportunity Commission, bringing the EEOC up to its full 5 commissioners. (EEOC press release.) Yang was nominated by President Obama in August 2012 and her nomination was finally confirmed by the Senate on April 25, 2013. Since 2003, Yang was a partner in the law firm of Cohen, Milstein, Sellers & Toll where she litigated civil rights and employment discrimination cases. Prior to that, she was with the Justice Department's Civil Rights Division. The EEOC enforces federal employment anti-discrimination laws, including those barring religious discrimination in employment.

Monday, May 13, 2013

Minnesota Becomes 12th State To Legalize Same-Sex Marriage.

The Minnesota state Senate today, by a vote of 37-30, gave final passage to HF 1054, a bill authorizing same-sex civil marriage in the state. The House of Representatives passed the bill last week by a vote of 75-59. (Legislative history.) According to the New York Times, Governor Mark Dayton promised he will sign the bill tomorrow (Tuesday) afternoon. This will make Minnesota the 12th state to legalize same-sex marriage.

The new law includes a number of protections for clergy and religious organizations that object to same-sex marriage. It provides that non-profit religious organizations and educational facilities they operate or supervise can take action on the basis of sexual orientation with respect to education, employment, housing and real property, or use of facilities, except as to secular business activities unrelated to the organization's religious or educational purposes. Also these religious and educational institutions may refuse to furnish goods, services, facilities, or accommodations directly related to the solemnization or celebration of a civil marriage that is in violation of the organization's religious beliefs. They may not be subject to any fine, liability or loss of tax exempt status for such refusal. No member of the clergy or other person authorized to solemnize marriages may be subject to liability or any penalty for refusing to solemnize a marriage for any reason.

The bill also changes all references in Minnesota statues from "marriage" to "civil marriage", and assures same-sex couples married in Minnesota that Minnesota courts will be available for any future dissolution of the marriage if the couple has moved to a state that refuses to recognize same-sex marriage and divorce.

2012 Report On Catholic Diocese Child Protection Compliance and Complaints Issued

Last week, the U.S. Conference of Catholic Bishops released the 2012 annual audit (full text) on diocesan compliance with the Charter for the Protection of Children and Young People. A May 9 Release from the U.S. Conference of Catholic Bishops summarizes the findings of the annual report. The audit showed full Charter compliance by all but four dioceses. The accompanying survey of abuse allegations lodged in 2012 showed 363 new allegations relating to abuse taking place in past years and 34 allegations of abuse of minors occurring in 2012. Of the 34 allegations of recent abuse, six were found to be credible and 15 are still under investigation. The allegations of past and current abuse were from 390 people against 313 priests or deacons. 84% of the victims were male. About half were between 10 and 14 when the abuse began.17% were between 15 and 17. 19% were under the age of 10 when the abuse started. As it has done in the past, the Diocese of Lincoln, Nebraska refused to be audited for Charter compliance or to respond to the survey. 3 Eastern rite eparchies also refused to be audited.

Dioceses, eparchies and religious orders spent $148.3 million in 2012 for settlements, attorneys fees, therapy for victims and support for offenders. Another $26.5 million was spent on child protection programs.

Sunday, May 12, 2013

Campus Police File Indecent Exposure Charges In Art Student's Naked Portrayal of the Pope

According to KDKA News, in Pittsburgh (PA) last week campus police at Carnegie Mellon University filed misdemeanor indecent exposure charges against two students growing out of their conduct at the College of Fine Arts' Anti-Gravity Downhill Derby. The event was part of the University's April 18-20 Spring Carnival. One of the two students charged was 19-year old Katherine O’Connor who appeared in the art school's parade dressed as the pope, naked from the waist down with her pubic hair shaved in the shape of a cross, and passing out condoms. Prior to the announcement of the filing of charges, the Pittsburgh Catholic Diocese had issued a statement saying that it was glad the university was taking seriously complaints about the matter, and said that the student involved "truly offended Catholics and the faith we hold sacred." In a May 10 message (full text) announcing filing of the misdemeanor charges, Carnegie Mellon president Jared Cohon said in part:

The students took part in a campus art event and, in the case of the student who portrayed herself as the Pope, made an artistic statement which proved to be controversial. While I recognize that many found the students’ activities deeply offensive, the university upholds their right to create works of art and express their ideas. But, public nudity is a violation of the law and subject to appropriate action.

Recent Prisoner Free Exercise Cases

In Widi v. United States Department of Justice, 2013 U.S. Dist. LEXIS 62269 (D ME, May 1, 2013), a Maine federal district court dismissed as "fanciful" an inmate's claims, including free exercise claims, objecting to a tuberculosis test.

In Cox v. Glebe, 2013 U.S. Dist. LEXIS 66497 (WD WA, May 9, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 66563, March 29, 2013) and rejected a Protestant inmate's claim that prison authorities violated the establishment clause by serving all inmates meatless meals on Wednesdays and Fridays during Lent.

In Irvin v. Yates, 2013 U.S. Dist. LEXIS 66564 (ED CA, May 9, 2013), a California federal magistrate judge allowed plaintiff to move ahead with his complaint that Muslim inmates were denied access to the chapel and forced to attend religious services in the yard, and that they were denied religious dietary accommodations. Claims as to temporary suspension of inmate purchases of religious oils, and as to failure to hire a new Muslim chaplain were dismissed with leave to amend.

In Spivey v. Chapman, 2013 U.S. Dist. LEXIS 66828 (SD IL. May 10, 2013), an Illinois federal district court adopted part of a magistrate's recommendation (2013 U.S. Dist. LEXIS 67778, March 21, 2013) and permitted a Reform Jewish inmate to proceed with his claim that authorities refused for discriminatory reasons to modify his work schedule so he could take off for his Sabbath. However it concluded that his RLUIPA claim for injunctive relief is moot because he has been moved to a different prison. [Updated].

In Hicks v. Ryan, 2013 U.S. Dist. LEXIS 66930 (D MA, May 9, 2013), a Massachusetts federal district court permitted an inmate to move ahead with his claim that prison authorities barred wheelchair bound inmates from attending church services and instead limited them to short bedside visits from nuns.

In Perkins v. Chandler, 2013 U.S. Dist. LEXIS 66715 (WD KY, May 9, 2013), a Kentucky federal district court dismissed an inmate's claim that denial of his parole was based on false charges of homosexual conduct in retaliation for his practice of the Islamic religion, and that the charges were a defamation of his religion.

School Board Cancels Official 6th Grade Graduation After Complaints About Prayer; Privately Sponsored Ceremony Planned

In Lake City, Arkansas, the Riverside School District has voted "to no longer sponsor the 6th grade graduation" after the Freedom From Religion Foundation, on behalf of a parent, wrote to object to prayer being part of the graduation ceremony. Yesterday's Christian Post reports that instead several mothers are organizing a graduation ceremony at a local church. Parent Kelly Adams, who objected to the Board's cancellation of the ceremony, argued: "We serve a God. And we should have the right to serve that God anywhere."

Saudi Court Sentences 2 To Jail, Lashings For Aiding Woman's Conversion To Christianity

Naharnet today reports that a court in the Saudi Arabian city of Khobar has sentenced two men for helping a young woman, identified only as "the girl of Khobar", convert to Christianity and flee to Sweden. All 3 were co-workers at an insurance company in Khobar. A Lebanese man was sentenced to 6 years in prison and 300 lashes for encouraging the conversion. A Saudi man was sentenced to 2 years in prison and 200 lashes for helping the woman flee the country. The defendants say they will appeal. Still pending are possible charges of corruption and forging official document that allowed the woman to leave Saudi Arabia without her family's consent.

Turkey's Constitution Drafters Agree On Freedom of Religion Clause That Will Permit Headscarves In Public Service

The Turkish Parliament in 2011 created a Constitutional Reconciliation Commission made up of representatives of each of the country's four political parties to draft a new constitution. (Background.) World Bulletin reported yesterday that the Commission, which has missed several deadlines for completing its work, has now agreed on a compromise provision on freedom of religion that will allow Muslim women to wear headscarves while serving in government positions. The compromise came after the Republican People's Party (CHP) backed off of its former objections. The Commission has agreed on the following language:

No one can be forced to participate in religious practices or ceremonies or express their religious beliefs or thoughts. No one can be prohibited from or denounced for fulfilling the requirements of their religious beliefs.

The Commission also agreed on other language to guarantee the equality of all citizens.

Saturday, May 11, 2013

Psychiatrist's License Suspended After His Diagnosis of 16-Year Old As Suffering From Evil Spiritual Entities

As reported by the Boston Globe, on May 8 the Massachusetts Board of Registration in Medicine suspended the medical license of psychiatrist Raymond W. Kam, saying that his conduct in treating a 16-year old patient last year called into question his competence to practice medicine. Kam last year had already signed a voluntary agreement not to practice medicine. Kam, a Boston Children's Hospital psychiatrist, became convinced that the patient was being hurt by "evil spiritual entities." Kam gave the girl a cross to wear in exchange for a different religious symbol she had on. After the girl was discharged from the hospital, Kam, who had withdrawn from the girl's treatment team, obtained permission from the girl's father to act as her spiritual mentor, taking her to his church and exchanging text messages with her. When the girl was kicked out of her house, Kam offered to let her stay at his house on several occasions. He failed to report to authorities an incident in which the girl's mother pushed her down a flight of stairs and tried to asphyxiate her.

The state Board also reprimanded a second psychiatrist who had failed to report the girl's abuse to authorities. Kam could regain his license next year if he completes a psychiatric evaluation and enters a 5-year probation agreement.

Court Dismisses Land Use Complaint By Ranch Owner Seeking To Build Chapel

In Anselmo v. County of Shasta, California, (ED CA, May 9, 2013), a California federal district court dismissed on ripeness grounds a RLUIPA claim by the Catholic owner of a ranch and winery challenging the County of Shasta's assertion that he was violating zoning rules by building a private chapel on his land. The court said:

Plaintiffs never completed the application process for either a rezoning permit or a building permit, and the Notice of Non-Compliance and Warning Notices only indicate that the property is currently violating land use regulations.

The court also rejected plaintiffs' free exercise and due process claims. (See prior related posting.) KHSL TV reports on the decision.

Friday, May 10, 2013

In Israel "Women of the Wall" Pray With Police Protection After Winning Court Ruling

In Israel today, Women of the Wall held their first prayer session since a court decision (see prior posting) vindicating their right to pray at Jerusalem's Western Wall wearing prayer shawls (traditionally worn only by men). The women's group, pressing for women's religious rights, worships at the Western Wall each month on Rosh Chodesh (the beginning of the new month). The Jerusalem Post reports that several thousand male yeshiva students and haredi (ultra-Orthodox) school girls gathered at the Wall to protest. The school girl protest was apparently devised by Knesset members from the United Torah Judaism party. A large number of police were at the Wall and attempted to create a protective barrier between the men's and women's sections. Protesters shouted threw water bottles and other objects at the women, and spit at them. Three haredi men were arrested for disturbing the peace.

In an interview with the Jerusalem Post, the Orthodox rabbi in charge of the Western Wall site expressing distress over the events and asked the Women of the Wall to stop their activities, He said they are a small group trying to sow discord and force their opinions on others. Meanwhile, Huffington Post reports on a statement issued by Women of the Wall praising the police for the protection they provided, and "call[ing] on ultra-Orthodox leadership to denounce all forms of violence against women."

Indian Court Sentences 3 To Life In Prison for 1984 Anti-Sikh Killings

The Business Standard reports that a court in India yesterday sentenced 3 defendants to life in prison for killing 5 people in 1984 in anti-Sikh riots that followed the assassination of prime minister Indira Gandhi. The prosecution had sought the death penalty. Two others involved (a former councilor and former legislator) were sentenced to 3 years for rioting. All 5 also received fines. The 5 were convicted in a trial last month. In that trial, Indian National Congress Party leader Sajjan Kumar was acquitted.

Court Denies Freedom of Information Request Relating To NYPD Surveillance of Muslims

In Asian American Legal Defense & Education Fund v. New York City Police Department, (NY Sup. Ct., May 6, 2013), a New York trial court upheld the NYPD's rejection of a Freedom of Information Law request by two groups seeking to learn more about the city's domestic surveillance program that targeted Muslims. The groups sought information regarding record keeping and retention, policy guidelines and statistics related to the surveillance. The court said that the city properly relied on the statutory exemption for information "compiled for law enforcement purposes and which, if disclosed, would: (i) interfere with law enforcement investigations or judicial proceedings; [or] (iii) identify a confidential source or disclose confidential information relating to a criminal investigation; or (iv) reveal criminal investigative techniques or procedures ." The court also identified several other exceptions that would justify denial of parts of the FOIL request. The New York Daily News reports on the decision.

Land Agreement Under Reformed FLDS United Effort Plan Trust Upheld

In Town of Colorado City v. United Effort Plan Trust, (D AZ, May 8. 2013), an Arizona federal district court gave a victory to the state of Utah in its efforts to reform the United Effort Plan Trust which holds property occupied by members of the polygamous Fundamentalist Church of Latter Day Saints (FLDS). In this lawsuit, the twin towns of Colorado City, Arizona and Hildale, Utah (along with their water and electric companies) sought a declaratory judgment as to (1) whether transfers of property by the court-appointed special fiduciary are constitutional, and (2) whether the Cookes who occupy a parcel of land under a 2008 agreement with the special fiduciary or Robert Black who previously occupied it through a 1999 oral agreement under the unreformed trust have a legal right to it.

As to the constitutional issue, the court held that while the claim was not barred by res judicata or collateral estoppel (see prior posting), the towns are barred by the doctrine of laches from asserting their claims:

Plaintiffs waited years to assert that claim, during which hundreds of property transactions were completed in reliance on the validity of the reformed trust and Mr. Wisan’s actions

On the question of right to occupancy, the court ruled in favor of the Cookes. It focused on language in the trust at the time Black obtained his occupancy rights: "use of property owned by the United Effort Plan Trust is not and does not
become a right or claim of anyone who may benefit in any way from the Trust." It also concluded that the statute of frauds precludes Black from asserting a claim of property rights and that Black has abandoned any rights he had in the property.

Thursday, May 09, 2013

Puerto Rico Federal Court Issues Opinion Explaining Its Prior Order On Proselytizers' Access To Gated Communities

In a long-running free-exercise/ free-speech case, in March a the federal district court in Puerto Rico, on remand from the 1st Circuit, ordered neighborhood homeowners' associations (urbanizations) that allow entry into the neighborhood only through an unmanned locked gate operated by a key, access code or beeper to provide Jehovah's Witnesses who wish to proselytize in the neighborhood access equal to that of residents. (See prior posting.) Apparently the negative response to the ruling impelled the court to issue an opinion further explaining its order. Watchtower Bible Tract Society of New York, Inc. v. Municipality of Santa Isabel, (D PR, May 6, 2013), is an opinion captioned: "Order Summarizing the Law and Court Orders Regarding the Right of Jehovah's Witnesses To Access Public Streets In Gated Communities In Puerto Rico." In it, the court said in part:

The Court is aware this case has sparked extreme public debate... The Court is not deaf to the concerns of the general public that resides in gated communities. To be sure, as much as this case is about civil liberties, it is also about the frightening amount of crime currently suffocating the island. The general public, as evidenced by the hordes of motions recently filed by the Municipal Defendants, appears not to grasp the notion that this Court is only enforcing an order of a higher court. In doing so, this Court must strike a balance between a legitimate form of protection against crime and protecting the civil liberties of the citizenry in Puerto Rico....

The Court has not granted unfettered access to violent criminals, nor should any knowledgeable or reputable person spread such fear. The gates were erected as a means to reduce crime on the island. Since the enactment of the Control Access Law, crime has not substantially abated on the island. The Court is not aware of a single instance in which any Jehovah’s Witness has been charged or convicted of a crime while expressing his or her religious beliefs. The Jehovah’s Witnesses enjoy the same First Amendment rights as all residents of Puerto Rico. If access to public streets can be denied to them, then access can be denied to anyone. For example, an aspiring politician will be barred from going door-to-door seeking endorsements. Likewise, the press could also be prevented from entering a gated community to cover the reactions of residents to a court ruling, as that in this case. More so, during Easter, Catholics could similarly be barred from participating in a Via Crucis on public streets....

A copy of this order shall be provided by each Municipality to the administrator of every gated community.

Catholic Army Sergeant Claims Harassment Because Fellow-Soldiers Thought She Was Muslim

AP reported at length yesterday on the problems faced in the U.S. Army by Sgt. 1st Class Naida Hosan who is Catholic, but whose fellow-soldiers thought she was Muslim. She was taunted so much by other soldiers that before deploying to Afghanistan last year, she changed her name to Naida Christian Nova. However this did not stop the anti-Muslim slurs and jokes directed at her. Nova is a multicultural Farsi linguist. She says that when she filed a formal complaint about her treatment in 2007, her commander removed her from her job and ordered her to take a mental health evaluation. Ultimately she was sent back from Afghanistan to Ft. Bragg and threatened with an involuntary termination of her military career for "ineffective leadership." After a federal lawsuit was filed, the Army dropped all its disciplinary charges and Nova has re-enlisted.

Another Contraceptive Coverage Challenge Filed By A For-Profit Small Business

Suits challenging the Affordable Care Act contraceptive coverage mandate continue to be filed. Thomas More Law Center announced the filing of a suit yesterday on behalf of a family-owned company that is a leading supplier of custom injection molding products, and on behalf of the four brothers who own and control the business. Three of the brothers are Catholic and one is Baptist. The complaint (full text) in M&N Plastics, Inc. v. Sebelius, (ED MI, filed 5/8/2013), asserts that plaintiffs in particular object to the requirement that the health insurance policies they provide cover Plan B and ella "since they believe those drugs could prevent a human embryo, which they understand to include a fertilized egg before it implants in the uterus, from implanting in the wall of the uterus, causing the death of a person." The complaint alleges that the mandate violates the 1st Amendment, RFRA and the Administrative Procedure Act.

Texas Trial Court Says Cheerleaders Can Use Run-Throughs With Religious Messages

A Texas trial court yesterday decided a widely-followed Establishment Clause case. In Matthews v. Kountze Independent School District, (TX Dist. Ct., May 8, 2013), the court rejected an Establishment Clause challenge to high school cheerleaders displaying their own banners and "run-throughs" containing religious messages at football games and other sporting events. The court had previously issued a temporary injunction after concluding that the cheerleaders were engaging in private religious expression. (See prior posting.) In yesterday's brief decision, the court said in part:

The evidence in this case confirms that religious messages expressed on run-through banners have not created, and will not create, an establishment of religion in the Kountze community.

After the decision, Texas attorney-general Greg Abbot issued a statement (full text) saying in part:

This is a victory for religious liberties and for high school cheerleaders who stood up to powerful forces that tried to silence their voices. The Freedom From Religion Foundation was wrong in trying to bully Kountze ISD into prohibiting the cheerleaders from displaying banners with religious messages. Our Constitution has never demanded that students check their religious beliefs at the schoolhouse door.

Texas Governor Rick Perry also issued a statement (full text), praising the cheerleaders of showing "great resolve and maturity beyond their years." Liberty Institute issued a press release announcing the decision, and ABC News reports on the decision in the widely-followed case. The Freedom From Religion Foundation issued a press release calling the decision "misguided."

Wednesday, May 08, 2013

Statement Clarifies Charges That Military Has Been Hostile To Evangelical Christians

In recent weeks, the blogosphere has been filled with various charges that the U.S. military has taken actions seen as hostile to evangelical Christians. On Monday, the Southern Baptist Convention's North American Mission Board and Ethics and Religious Liberty Commission issued a statement (full text) finally bringing some clarity to what actually happened. As it turns out, the military has admitted that some of its actions were erroneous and corrected them. Other actions were mischaracterized in the media. The military does take the position that "proselytizing", defined as unwelcome coercion of religious beliefs, would be considered a Uniform Code of Military Justice offense. Unwelcome advances are seen as violating good order and discipline by forcing faith beliefs on others.

City Officials Tell Store Owner To Remove Madonna Statue From Traffic Island

West Springfield, Massachusetts has created a beautification initiative under which businesses and individuals on the West Side agree to landscape and maintain specific parcels of public property. According to today's The Republican, officials in West Springfield have told local pizza store owner Antonio Liquori that he has gone too far in his beautification activities. After receiving several complaints, officials have ordered Liquori to remove a statute of the Virgin Mary that he put up nearly a year ago on a traffic island he has adopted. At least one local resident, Joan Palermo, is mounting a petition drive to get the statute returned. According to 22 News, Palermo complained: "Everyone I know was very upset…The Virgin Mary wasn't doing anything, she was beautiful." City officials say that in the future, beautification efforts will be limited to plantings.

Settlement Reached In Suit By Christian Proselytizers Arrested At Arab International Festival; More Confrontations Likely This Year

The American Freedom Law Center announced this week that a settlement has been reached in Acts 17 Apologetics v. City of Dearborn. In the case, three Christian evangelists sued over their arrest and subsequent breach of the peace trial for proselytizing Muslims at Dearborn, Michigan's Arab International Festival. (See prior posting.) Under the settlement agreement, the city will post a public apology on its website, remove from its website a press release and letter from the mayor that contained derogatory comments about Christians, and will pay an undisclosed amount to plaintiffs.

Meanwhile Dearborn's mayor announced last month that this year the site of the festival was being moved to a local park, a site that the police can better control. (Detroit Free Press, April 29). It is likely that police will face challenges at the June 14-17 festival this year. According to yesterday's Oakland County Daily Tribune, inflammatory anti-Muslim Florida pastor Terry Jones plans to attend the festival again this year:

Jones announced that he and Pastor Wayne Sapp will be joined by Ruben Israel of the Bible Believers, whose appearance at last year’s festival led to items being thrown at them and the video being posted on YouTube; Pastor David Grisham of Repent Amarillo; and Rabbi Nachum Shifren of the California Security Council.

DC Circuit Grants Government's Strategic Motion For Dismissal of Its Contraceptive Coverage Appeal [UPDATED]

As reported by the Christian Science Monitor, last week the D.C. Circuit Court of Appeals granted the government's motion to dismiss its appeal of a preliminary injunction won by Tyndale House, a for-profit Bible publishing company, against enforcement of the Affordable Care Act contraceptive coverage mandate. (See prior posting.) An appeal is pending in the D.C. Circuit in another case raising the same issues and it is being heard by a different 3-judge panel that apparently the government considers more sympathetic to its arguments. Tyndale House had opposed the government's motion to dismiss the appeal, but now that it has been dismissed Tyndale House lawyers say: "The government dismissed its appeal because it knows how ridiculous it sounds arguing that a Bible publisher isn’t religious enough to qualify as a religious employer."

UPDATE: The issue of the motivation behind the government's motion is more complex than suggested above. It turns out that the 3-judge panel which denied appellants an injunction pending appeal in the other pending case, Gilardi v. Sebelius, also granted an expedited appeal and ordered that "the case be scheduled for oral argument on the same day and before the same panel as Tyndale House Publishers, Inc. v. Sebelius", sometime in September. (Full text of order denying injunction and ordering same panel.) Of course, now there is no "same panel" to hear the Gilardi appeal, and it is unclear whether it will go before the panel that heard and denied the motion in Gilardi for an injunction pending appeal-- the one presumably favored by the government. So it may be that the government merely thought that Gilardi was a better case on the merits for it to use to test the issue since the companies there are not engaged in a business related to religion in the way a Bible publisher in Tyndale is. (See prior related posting.) [Thanks to Duane Schmidt for the lead.]

Tuesday, May 07, 2013

Delaware Becomes 11th State To Permit Same-Sex Marriages

As reported by the New York Times, Delaware today became the 11th state to authorize same-sex marriage. The new law also converts exiting Delaware civil unions into marriages. House Bill No. 75 (full text) was passed last month by the state House of Representatives by a vote of 28-18. The state Senate passed the bill just before 7:00 pm tonight by a vote of 12-9. (Legislative history.) Gov. Jack Markell signed the bill within minutes of its passage. The new law protects clergy who object to performing same-sex marriages. It provides:

nothing in this section shall be construed to require any person (including any clergyperson or minister of any religion) authorized to solemnize a marriage to solemnize any marriage, and no such authorized person who fails or refuses for any reason to solemnize a marriage shall be subject to any fine or other penalty for such failure or refusal. Notwithstanding the preceding sentence, a clerk of the peace who issues a marriage license, or a deputy thereof, shall be required to perform a solemnization of such marriage if requested by the applicants for such license.

Louisiana Supreme Court Invalidates State School Voucher Program

The Louisiana Supreme Court today in a 6-1 decision held that the state's school voucher program enacted in 2012 violates the state constitution. In Louisiana Federation of Teachers v. State of Louisiana, (LA Sup. Ct., May 7, 2013), the majority addressed both the statute creating the program (Act 2) and the Senate concurring resolution (SCR 99) approving the funding formula created by the State Board of Elementary and Secondary Education. The majority said:

SCR 99 and Act 2 unconstitutionally divert MFP [Minimum Foundation Program] funds to nonpublic entities in violation of La. Const. art. VIII, § 13(B), which requires state MFP funds to be allocated equitably to “parish and city school systems.” We also hold that ... SCR 99 did not satisfy all that the constitution requires of a matter intended to have the effect of law. SCR 99 was not timely introduced or considered in the legislative session and the final vote on SCR 99 was insufficient to enact a matter intended to have the effect of law.

Justice Guidry filed a dissenting opinion. The Advertiser has reactions of various Louisiana officials to the decision.

Some New Jersey Legislators Question State Construction Funding Award To Jewish Rabbinical School

Yesterday's Newark Star-Ledger reports that in New Jersey, some Democrats are questioning the inclusion of a large, all-male Orthodox Jewish rabbinical school among the institutions of higher education that will participate in the $1.3 billion of state financing for construction at New Jersey colleges and universities. The 6,600 student Beth Medrash Govoha, based in Lakewood, is scheduled to receive $10.6 million for a new library and academic center. Assembly Speaker Sheila Oliver says that the school essentially has a religious test for admission. Students who wish to enroll must speak Hebrew, know Jewish sacred texts and agree not to date during their the first six months at the school. The school's vice president denies that it imposes a religious test, saying however that the school does have strict educational standards. The head of the school, Rabbi Aaron Kotler, traveled with Gov. Christie to Israel last year, and the Orthodox Jewish community has endorsed Christie in his race for re-election. The higher education bond bill passed last year originally would have excluded schools that primarily train ministers, priests or rabbis, but that limitation was removed after a lobbyist retained by Beth Medrash Govoha met with New Jersey legislators. The state legislature has 60 days to reject the governor's list of schools that will participate.

Court Rejects Proposed Settlement In Challenge To Nevada's Prison Policy On Kosher Food

In Ackerman v. State of Nevada Department of Corrections, (D NV, May 3, 2013), a Nevada federal district court rejected a proposed settlement of a class action brought on behalf of 205 inmates who objected to the state prison system's provision of a common fare menu instead of kosher food. The court also dissolved the preliminary injunction it had previously issued to allow plaintiffs to continue to receive kosher meals, and decertified the plaintiff class, some of whom now apparently had diverging interests. This means that the state can move ahead with its original plans. As reported by the Las Vegas Sun, under the proposed settlement, the state would have had an outside organization certify the prison kitchen preparing the common fare meals as kosher. However more than 20% of the inmates who were members of the plaintiff class, including the lead plaintiff, objected to the settlement. Complaining members of the class insisted that they were inadequately represented by counsel. The court said in part:

the Court continues to recognize that the likelihood of success on the merits is not strong. What has changed since the original injunction order is that the balance of equities no longer tips sharply in favor of Plaintiff or any of the class. Defendants, as representatives of the State of Nevada and its citizens, have borne the financial burden of delaying implementation of a cost-cutting menu, at a time when the state is experiencing budget emergencies.

Monday, May 06, 2013

Indiana Suit Against Catholic Diocese Seeks Damages For Disabled Daughter's Sexual Encounter At Abstinence Retreat

The Indianapolis Star reported yesterday on a lawsuit pending in state court in Daviess County, Indiana, brought against the Catholic Diocese of Evansville and several others by the mother of a developmentally disabled young woman over events at a church-sponsored abstinence retreat 5 years ago. The daughter (then 23 years old), who because of her mental condition was unable to legally consent, had sex with a 25-year old man also attending the retreat. Subsequently, in a plea deal, he was apparently convicted of rape and deported. The lawsuit brought by Silvia Gameros charges the Diocese with failing to protect her daughter and then trying to cover up the incident. The suit also names as defendants Our Lady of Hope Catholic Church (the parish that hosted the retreat for Hispanic youths), and two outreach workers with the diocese's Guadalupe Center which sponsored the retreat. One of those workers, a friend, extended a last-minute invitation to the daughter to attend, in part in an effort to get a large attendance. The suit seeks damages to cover the medical care and counseling of the daughter, as well as punitive damages.

Can High School Students Pray Instead Of Going To Class?

The question of what limits there are on student-initiated prayer in schools has surfaced in Lumpkin County, Georgia. According to Fox5 News, last Wednesday a student member of Lumpkin County High School's Fellowship of Christian Athletes showed up at the coach's office at 7:30 am and began to pray with the coach. The prayer lasted over two hours, and before it was finished some 50 students had joined in the prayer that extended into first period when they should have been in class. Lumpkin County Schools Superintendent Dewey Moye says that the students were within their right, but that from now on there will be no prayers during school hours. According to Opposing Views, the ACLU is investigating the incident.

In Bangladesh, 3 Killed In Demonstration Demanding Blasphemy Law With Death Penalty

Yesterday in Dhaka, the capital of Bangladesh, three people were killed and at least 50 were injured in clashes between security forces and demonstrators who are demanding a blasphemy law with provision for the death penalty. According to Al Jazeera, demonstrators are supporters of a new group, Hefazat-e-Islam, which has a list of 13 demands, including mandatory religious education, a ban on men and women mixing freely together and restoring pledges to Allah in the constitution.

Obama Sends Greetings To Those Observing Orthodox Christian Easter

Yesterday was Easter on the Orthodox Christian calendar. On Saturday, President Obama issued a statement (full text) extending best wishes from himself and the First Lady to Orthodox Christians in the U.S. and around the world observing Holy Friday and the Feast of the Resurrection. The statement said in part:

For millions of Orthodox Christians, this is a joyful time. But it’s also a reminder of the sacrifice Christ made so that we might have eternal life. His decision to choose love in the face of hate; hope in the face of despair is an example we should always strive to follow. But it’s especially important to remember this year, as members of the Orthodox community have been confronted with persecution and violence, particularly in the Middle East and North Africa.

Sunday, May 05, 2013

Baptist Children's Home Cannot Challenge Kentucky's Settlement of Establishment Clause Case

Pedreira v. Sunrise Children's Services, (WD KY, May 2, 2013) is the latest installment in the long-running Establishment Clause litigation challenging Kentucky's payments to a Baptist-operated child-care agency to provide residential treatment facilities for abused and neglected children. In March, the state agreed with plaintiffs to settle the case by placing new church-state safeguards in its contracts with child care agencies. (See prior posting.) However, Sunrise Children's Services, the child-services agency whose practices were at issue, objected to the settlement arguing that the Settlement Agreement imposes obligations on it without giving it the opportunity to litigate the merits further. The court however rejected this argument, saying that new obligations are not imposed on Sunrise. Instead any new obligations would be ones that Sunrise voluntarily assumes by entering a contract with the state on the new terms that the the state has agreed to include.

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.

Saturday, May 04, 2013

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.

Friday, May 03, 2013

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.

Thursday, May 02, 2013

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.

Wednesday, May 01, 2013

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.

Tuesday, April 30, 2013

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.