Recent Prisoner Free Exercise Cases

In Hazle v. Crofoot, (9th Cir., Aug. 23, 2013), the 9th Circuit held that an inmate whose parole was revoked after he refused to participate in a faith-based drug treatment program is entitled to compensatory damages. The court also remanded for further consideration plaintiff's claim for injunctive relief.

In Warner v. Patterson, (10th Cir., Aug. 22, 2013), the 10th Circuit dismissed as moot an Odinist inmate's RLUIPA challenge to the denial to him of break-the-fast boxes and a blanket ban on materials from a particular publisher. Plaintiff was no longer in custody of the Utah Department of Corrections but, instead, had been temporarily transferred to federal custody to face federal charges.

In Smith v. Donahue, 2013 Ind. App. Unpub. LEXIS 1069 (IN App., Aug. 14, 2013), an Indiana appellate court upheld the denial of a new trial to an inmate who lost in a jury trial on his claim that authorities impeded his ability to convert from Roman Catholicism to Wicca, denied him items he needed to practice his new religion, treated him differently from other inmates and established Christianity as an institutional religion.

In Bell v. Parsons, 2013 U.S. Dist. LEXIS 117155 (WD NC, Aug. 19, 2013), a North Carolina federal district court dismissed a Muslim inmate's complaint that this observance of Ramadan was disrupted when the contents of his cell, including  a prayer rug, prayer oils, two Qur'an texts, two kufis, a prayer schedule and plastic prayer beads were removed as part of an emergency response to fires being set by prisoners.

In Rognirhar v. Foston, 2013 U.S. Dist. LEXIS 117291 (ED CA, Aug. 19, 2013), a California federal district court dismissed as moot a complaint by an Asatru inmate that he was not permitted to wear an uncut beard. New regulations permit long beards.

In Alan v. Twaddell, 2013 U.S. Dist. LEXIS 117404 (CD IL, Aug. 20, 2013), an Illinois federal district court allowed an African Hebrew Israelite inmate to move ahead with his complaint that his rights have been infringed because he is not able to get his dinner served after sunset on Saturday night. He believes he must fast on his Sabbath until sunset.

In Legate v. Stephens, 2013 U.S. Dist. LEXIS 117236 (SD TX, Aug. 19, 2013), a Texas federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 117770, July 17, 2013) and permitted a Native American inmate to proceed with his claim that the prison's grooming policy (requiring him to cut his hair), as well as other security and health policies (restricting his use of tobacco and wearing his medicine pouch) burden his religious practice.

In White v. Linderman, 2013 U.S. Dist. LEXIS 117853 (D AZ, Aug. 20, 2013), an Arizona federal district court permitted a Messianic Jewish inmate to proceed with his complaint that he has been denied a kosher diet. The court criticized the prison's requirement that plaintiff  furnish documentation from an outside source that Messianic Jews follow kosher rules.

In Nimmons v. Fischer, 2013 U.S. Dist. LEXIS 117737 (WD NY, Aug. 20, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 118059, July 30, 2013) and dismissed without prejudice an inmate's complaint that his 1st Amendment rights were infringed when authorities confiscated a manuscript he was writing regarding The Nation of Gods and Earths inmates.

In Clay v. Livingston, 2013 U.S. Dist. LEXIS 118116 (ND CA, Aug. 20, 2013), a California federal magistrate judge dismissed as moot, with leave to amend, a Muslim inmate's complaint that Muslim inmates who are fasting during Ramadan are not receiving their lunches.

In Houston v. Schriro, 2013 U.S. Dist. LEXIS 118867 (SD NY, Aug. 20, 2013), a New York federal district court permitted a Muslim inmate to move ahead with his claim that he he was denied low-sodium Halal meals, being told he would have to change his religious preference in order to receive a low sodium diet that would have ameliorated his high blood pressure and high cholesterol.

RLUIPA-- Indecipherable By "Normal People"?

Those who deal on a regular basis with issues under the Religious Land Use and Institutionalized Person Act sometimes forget that the statute can be perplexing to lawyers and judges who do not regularly encounter it.  Nothing illustrates this as vividly as last week's 7th Circuit opinion by Chief Judge Frank Easterbrook in Mutawakkil v. Huibregtse, (7th Cir., Aug. 19, 2013).  In the case the court held that a prison inmate did not suffer a substantial burden on his free exercise rights in violation of RLUIPA by a state prison rule that requires a formal state-court name change before an inmate can use a religious or spiritual name as his only name. Otherwise the name can be used only along with the name under which the individual was committed to prison. Here the inmate, who was serving a long term for murder, wanted to use the name Prince Atum-Ra Uhuru Mutawakkil.  In introducing his discussion of the Religious Land Use and Institutionalized Persons Act, Judge Easterbrook wrote:

This leaves the statute, which often goes by the unpronounceable initialism RLUIPA but which we call "the Act" so that the opinion can be understood by normal people.

Indian State Promulgates Anti-Black Magic Ordinance After Murder of Rationalist Crusader

As reported by the Hindustan Times, the Indian state of Maharashtra became the first state to ban black magic as the governor last night signed into law as an Ordinance-- rather than waiting for state assembly approval-- a long-pending ban on such practices.  An Ordinance remains in effect for 6 months, but can be reissued. As summarized by the Times of India, the new ordinance:

* Prohibits practice, promotion and propagation of human sacrifice, other inhuman, evil and Aghori practices and black magic, unauthorized, illegal practices of medicine or healing or curing by quacks, conmen etc.

* Such practices will be treated as offence and punishable with imprisonment for a term of six months extending up to seven years along with a fine ranging from Rs 5,000 to Rs 50,000. The offences to be non-bailable.

The action follows the murder last week  in Pune of rationalist crusader Narendra Dabholkar. Today's New York Times carries a front-page story on his murder.

Suit Challenges New Jersey's New Law Banning Conversion Therapy For Minors

Yesterday, just days after New Jersey Governor Chris Christie signed  a bill that bans licensed mental health, social work and counseling professionals from engaging in in sexual orientation change therapy with minors, Liberty Counsel announced the filing of a federal lawsuit on behalf of affected counselors challenging the new law. The complaint (full text) in King v. Christie, (D NJ, filed 8/22/2013) claims that the new law violates plaintiffs' free expression and free exercise rights under the federal and state constitutions, as well as parents right to direct the upbringing and education of their children.

USCIRF Issues New Report On Religious Freedom In Burma

The U.S. Commission on International Religious Freedom yesterday issued the findings of a staff visit to Burma in May.  In a Policy Brief titled Burna: Implications of Religious and Ethnic Violence, the report concluded in part:

Burma is currently designated by the State Department as a “country of particular concern” ... as ongoing political reforms have yet to dramatically improve the situation.... Sectarian and societal violence, anti-Muslim exclusionary campaigns, and military incursions have caused egregious religious freedom violations against Muslims and some ethnic minority Christians. Nonetheless, in areas where the military has retreated from daily governance, the worst human rights abuses have receded.... Legal restrictions on some religious activities remain in place, but are enforced sporadically, if at all, depending on region, ethnicity, and religious group. The situation of the ethnic minority Rohingya ... remains a profound humanitarian and political crisis. It threatens to inflame anti-Muslim prejudices in other parts of the country, create large refugee flows in the region, instigate additional sectarian violence and discrimination, and potentially undermine the political reform process. 

Two New Mexico Counties Begin Issuing Same-Sex Marriage Licenses

In New Mexico this week, according to the Santa Fe New Mexican, two county clerks began issuing licenses for same-sex marriages. On  Aug. 21, Doña Ana County Clerk Lynn Ellins began issuing the licenses, saying that there is nothing in state law to prohibit it.  The state attorney general said he would not intervene. Then on Aug. 22, a state trial court judge in Hanna v. Salazar issued a writ of mandamus ordering Santa Fe County Clerk Geraldine Salazar to issue a marriage licence to a same-sex couple who sued after their license application was denied. The county clerk responded enthusiastically, saying:

Now that Judge Singleton has ordered me to issue a license to Messrs. Hanna and Hudson on constitutional grounds, I intend to do so and to issue a license to any same-sex couple who desires one and are otherwise qualified. By complying with the judge’s order we will be issuing licenses legally and will not continue to use limited county resources on further litigation.

At least 45 same-sex couples were issued licenses yesterday.

USCIRF Commissioners Say CPC Redesignation Is Needed

In an Aug. 21 Washington Post op ed, Robert George and Katrina Lantos Swett, chair and vice-chair of the U.S. Commission on International Religious Freedom, strongly criticize the Administration for failing to redesignate "countries of particular concern" (CPC) under the International Religious Freedom Act.  CPC designation indicates that a country has a particularly egregious record with regard to religious freedom.  The op-ed says in part:

The Bush administration issued several designations in its first term but let the process fall off track in its second. The Obama administration issued designations only once during its first term, in August 2011.

 The result? Violators such as Egypt, Pakistan and Vietnam are escaping the accountability that the International Religious Freedom Act is meant to provide.

 Even those nations currently designated as “countries of particular concern” could escape accountability if there are no designations this month; under the law, countries remain designated until removed, but any corresponding penalties expire after two years. Without new designations, sanctions attached in 2011 to Burma, China, Eritrea, Iran, North Korea and Sudan will expire this month. And while those countries are subject to sanctions under other U.S. laws, allowing the International Religious Freedom Act’s sanctions authority to expire would send the disturbing message that the United States won’t implement its own law on religious freedom.

FFRF Has Standing To Challenge Differential Form 990 Requirements

In Freedom From Religion Foundation v. Werfel, (WD WI, Aug. 22, 2013), a Wisconsin federal district court held that the Freedom From Religion Foundation has standing to challenge on Establishment Clause and equal protection grounds the Internal Revenue Service's requirement that secular non-profits file an annual report on Form 990, while churches are not required to file. However the court concluded preliminarily that FFRF is unlikely to be harmed in the future by the requirement that secular non-profits (unlike churches) must file detailed Form 1023 and pay a fee in order to apply for tax exempt status.  FFRF has already filed its application and will not be required to do so again.

New Mexico High Court Says No Human Rights Law Exception For Wedding Photographer

In Elane Photography, LLC v. Willock, (NM Sup, Ct., Aug. 22, 2013), the New Mexico Supreme Court held that the New Mexico Human Rights Act requires a commercial photography business to serve same-sex couples on the same basis as opposite-sex couples. The 1st Amendment does not require an exception for creative or expressive professions. The court reasoned:

A holding that the First Amendment mandates an exception to public accommodations laws for commercial photographers would license commercial photographers to freely discriminate against any protected class on the basis that the photographer was only exercising his or her right not to express a viewpoint with which he or she disagrees. Such a holding would undermine all of the protections provided by antidiscrimination laws.

Finally the court held that the New Mexico Religious Freedom Restoration Act does not apply to the case because the government is not a party.

Concurring specially, Justice Bosson said in part:

... [T]his case provokes reflection on what this nation is all about, its promise of fairness, liberty, equality of opportunity, and justice. At its heart, this case teaches that at some point in our lives all of us must compromise, if only a little, to accommodate the contrasting values of others. A multicultural, pluralistic society, one of our nation’s strengths, demands no less.

Wall Street Journal reports on the decision.

Proposed Amendments To Egypt's Constitution Given To President

Al Ahram reports that in Egypt on Tuesday, the 10-member technical committee that had been charged with drafting amendments to Egypt's 2012 constitution gave its proposed draft to interim president Adlhy Mansour. The draft retains Article 2 that declares Islam country's religion, but eliminates Article 219 that sets out rules for determining what is shariah law. The committee also changed Article 6 to ban political parties based on religion or on mixing religion with politics. This could lead to the dissolution of the Muslim Brotherhood's Freedom and Justice Party.

Settlement In Suit Challenging School RFID Badges On Religious Grounds

A settlement has been reached in a suit by a Texas high school student  who objected on religious grounds to wearing a Smart ID badge containing an RFID chip. The student's father claimed that wearing the badge would be the mark of the beast, and he had religious objections to the school tracking his daughter. (See prior posting.) According to today's San Antonio Express News, Andrea Hernandez' magnet school has decided to drop the use of RFID badges. Under the settlement, Hernandez will now be allowed to return to the school.

New York's Increasing Ultra-Orthodox Jewish Population Poses Accommodation Issues

The New York Times yesterday reported on the religious accommodation issues posed by the rising numbers and increased political influence of Hasidic and other ultra-Orthodox Jews in New York City. Now numbering 330,000, they have tangled with city regulatory authorities over issues such as female life guards at women-only swim sessions at a municipal pool, use of ground water wells for water to produce matzah, and businesses in Hasidic neighborhoods posting signs barring immodestly dressed women.  The Times says: "A politically astute new generation of ultra-Orthodox leaders has become savvy at navigating the halls of government, while the grand rabbis of Hasidic sects wield electoral power like few religious leaders can, turning followers into cohesive voting blocs." [Thanks to Scott Mange for the lead.]

Statements To Pastor Not Covered By Religious Privilege

In State of New Hampshire v. Willis, (NH Sup. Ct., Aug. 21, 2013), the New Hampshire Supreme Court held that a trial court properly admitted statements a criminal defendant made to his church pastor. Defendant Ernest Willis, who was convicted on three counts of sexual assault involving a minor, argued that the religious privilege should have protected the statements. The court concluded however that one of the statements was admissible "because of the presence of [the pastor's] wife, whom the trial court found to be an ‘extraneous’ third party.” As to a second statement, made to the pastor alone, the Court concluded

whether a communication is a “confidence” within the meaning of the religious privilege depends upon the objectively reasonable expectations of the communicant, under the totality of the circumstances....  Because our law provides that any statement to a clergyperson that might be helpful in establishing child abuse is not protected by the privilege, a communicant cannot have an objectively reasonable expectation that such a statement will remain confidential.

 AP reports on the decision.

Suit Challenging IRS Non-Enforcement of Politicking Ban Against Churches Survives Dismissal Motion

In Freedom From Religion Foundation v. Shulman, (WD WI, Aug. 19, 2013), a Wisconsin federal district court refused to dismiss a lawsuit against the Internal Revenue Service alleging that IRS enforcement policies favors religious non-profits over other 501(c)(3) organizations. The suit alleges that the IRS does not enforce the ban on political campaign activity against churches and religious organizations, while it fully enforces it against others.  The court held that the Freedom From Religion Foundation, itself a 501(c)(3) organization, has standing to bring the action, and that the government has waived sovereign immunity through Section 702 of the Administrative Procedure Act.  As pointed out in the FFRF's press release on the decision, this means that the case will now proceed to discovery. Huffington Post reports on the decision. [Thanks to Michael Gompertz for the lead.]

USCIRF Warns About Religious Violence In Nigeria

The U.S. Commission on International Religious Freedom has recently issued a Fact Sheet on Boko Haram's religiously motivated violence in Nigeria. The Fact Sheet (full text) explains:

Boko Haram (a Hausa-language name northern Nigerians gave to the militants that means “western education is a sin”) originated in northern Nigeria’s Yobe and Borno states in 2002 and is now a dangerous threat to Nigeria’s stability. The group regards the federal and northern state governments, as well as the country’s political and religious elites, as morally corrupt. It further rejects the West and the secular state, seeking the universal implementation of “pure” Shari’ah law to resolve the ills northern Nigerian Muslims face. While the 12 northern Nigerian states already apply Shari’ah in their jurisdictions, Boko Haram believes that it has been corrupted by politicians for their own purposes....

Woman, Banned From Church, Charged With Trespassing

Yesterday's Greensboro (NC) News & Record reports on the criminal trespass charges that have been filed against 62-year old Marilyn Baird who insists on attending New Hope Missionary Baptist Church even though the pastor and church officers have banned her from the building for her criticism of church financial practices.  When Baird nevertheless attended on July 7, police were called to escort her out.  A week later, when she appeared again, she was arrested outside the sanctuary for second degree trespassing. Her case will be heard in court on Sept. 17.

Russian Police Stop Unsanctioned Procession By Church of Flying Spaghetti Monster

Some in Russia apparently fail to appreciate the humor of the "Pastafarian" movement.  Raw Story reports that on Saturday, Moscow police detained eight followers of the Church of the Flying Spaghetti Monster for attempting to hold an unsanctioned rally:

Followers of the Church of the Flying Spaghetti Monster planned to hold a “pasta procession” in Moscow and St. Petersburg to honor the birthday of Robert De Niro, who once played a character named Noodle in the movie Once Upon A Time in America.

The “pasta procession” in Moscow was disrupted by the Orthodox activist group Bozhaya Volya, or God’s Will, who sprayed ketchup on a march participants. The Orthodox group has held demonstrations against homosexuality, the punk rock group Pussy Riot, and the Darwin natural history museum.

Suit Challenges 10 Commandments On Oklahoma Capitol Grounds

The ACLU of Oklahoma yesterday filed a state court lawsuit on behalf of several plaintiffs challenging the constitutionality under the state constitution of a Ten Commandments monument that was erected on the State Capitol grounds in 2012. (See prior related posting.) The complaint (full text) in Prescott v. Oklahoma Capitol Preservation Commission, (OK Dist. Ct., filed 8/19/2013) contends that the monument, paid for personally by a member of the Oklahoma House of Representatives and his family, constitutes an illegal "appropriation of public property" in support of religion, in violation of Art. 2, Sec. 5 of the Oklahoma Constitution. The complaint contains an extensive analysis of the religious implications of the text and design of the monument-- which are similar to those of monuments placed around the country by the Fraternal Order of Eagles.  In its press release announcing the filing of the lawsuit, the ACLU said in part:

The lawsuit also seeks to remedy the state monument’s impact on Jewish and Christian believers. The government has taken a text that, in various forms, is deeply sacred in both of these faiths and have trivialized its religious meaning by placing it in a political and secular context, with its proponents arguing that the monument is a constitutionally permissible recitation of a purely non-religious history of our legal system and government.

No 1st Amendment Bar To Suit Against Diocese Over Priest Sex Abuse

In Givens v. St. Adalbert Church, 2013 Conn. Super. LEXIS 1704 (CT Super. Ct., July 25, 2013), a Connecticut trial court rejected the contention of a Catholic diocese that the 1st Amendment and the ministerial exception doctrine preclude civil courts from deciding claims against religious institutions growing out of sexual abuse by a member of the clergy. The court, however, did dismiss two paragraphs of the complaint which would have required it to decide disputed issues of religious doctrine and practice.

Religions of U.S. House Members Mapped

BuzzFeed yesterday posted an interesting set of maps that illustrate by district the religious affiliation of all 435 members of the U.S. House of Representatives. The posting adds:

There are 31 religions represented in the House, including 26 different sects of Christianity. Catholics make up the largest group with 136 members, followed by Baptists with 66 members, Methodists with 45 members, Anglicans/Episcopalians with 35 members, Presbyterians with 28 members, and Jews with 22 members. There is only one atheist.

Apaches Want Museum To Acknowledge That Objects Are Sacred and Part of Their Cultural Patrimony

The New York Times yesterday reported on a dispute over 77 Native American items in the collection of the American Museum of Natural History.  The objects, include headwear, feathers, bows and arrows, medicine rings and satchels containing crystals and charms. The Museum agreed four years ago to return the objects to the Apache tribe, but the Apaches insist that the Museum first designate the items as "sacred" and "items of cultural patrimony"-- terms defined in the Native American Graves Protection and Repatriation Act. The Museum is only willing to refer to the objects as "cultural items." The Times quotes David Tarler, an expert on repatriation, who explains:

some Indian tribes feel the use of the term “cultural patrimony” in the documentation amounts to an acknowledgment that the objects should never have been removed from tribal hands without consent.... [S]uch an admission is “an important matter of healing” for those tribes. “They want affirmation that they have always owned the objects tribally”....

Catholic Non-Profit Sues Challenging Contraceptive Mandate Compromise

Now that the Department of Health and Human Services has issued final rules providing a compromise for religiously sponsored non-profits such as hospitals and colleges that object to the Affordable Care Act's contraceptive coverage mandate, suits challenging those rules are beginning to be filed by non-profits whose earlier challenges were dismissed on ripeness grounds.  Yesterday the American Freedom Law Center announced the filing of this type of action on behalf of Priests for Life, whose earlier suit had been dismissed on ripeness grounds last April. The new complaint (full text) in Priests for Life v. U.S. Department of Health and Human Services, (D DC, filed 8/19/2013) alleges:

... Priests for Life, a Catholic organization, is morally prohibited based on its sincerely held religious convictions from cooperating with evil. Priests for Life objects to being forced by the government to purchase a health care plan that provides its employees with access to contraceptives, sterilization, and abortifacients, all of which are prohibited by its religious convictions. This is true whether the immoral services are paid for directly, indirectly, or even not at all by Priests for Life. Contraception, sterilization, and abortifacients are immoral regardless of their cost. And Priests for Life objects to the government forcing it into a moral dilemma with regard to its relationship with its employees and its very survival as an effective, pro-life organization. 

NJ Governor Signs Bill Banning Conversion Therapy; Says He Disagrees With Church's View of Homosexuality As Sinful

New Jersey Governor Chris Christie today signed A 3371, a bill that bans licensed mental health, social work and counseling professionals from engaging in in sexual orientation change efforts with a person under 18 years of age. In his signing statement (full text), Christie said that while he is concerned about limiting parental choice, exposing children to the mental health risks of conversion therapy without clear evidence of benefits that outweigh the serious risks is not appropriate. A press release from the governor's office announcing the signing included an exchange between Christie and CNN's Pierce Morgan:

Piers Morgan: Is homosexuality a sin?

Governor Christie: Well my religion says it’s a sin. I mean I think, but for me, I’ve always believed that people are born with the predisposition to be homosexual. And so I think if someone is born that way it’s very difficult to say then that’s a sin. But I understand that my Church says that, but for me personally I don’t look at someone who is homosexual as a sinner.

USA Today reports on the bill signing.

Mediation In Litigation Over Sale Of Historic Torah Ornaments Breaks Down

AP reported last week that mediation has failed in the lawsuits between Newport, Rhode Island's historic Touro Synagogue and New York City's Congregation Shearith Israel that claims that it owns Touro. (See prior posting.) The dispute began with a decision in 2010 by Touro Synagogue to sell its valuable colonial Torah ornaments (now on loan to the Boston Mueum of Fine Arts) in order to endow future maintenance and clergy salaries. Shearith Israel opposes the sale. Touro Synagogue is celebrating its 250th anniversary this year.

Recent Articles of Interest

From SSRN:

• Helen M. Alvare, Constitutional Abortion and Culture, (Christian Bioethics, Vol. 19, No. 2, pp. 133-149, August 2013).
• Haider Ala Hamoudi, The Impossible, Highly Desired Islamic Bank, (William & Mary Business Law Review, Vol. 5, 2013).
• Neil James Foster, Anti-Vilification Laws and Freedom of Religion in Australia - Is Defamation Enough?, (June 08, 2013).
• Timothy J. Geverd, Establishment, Incorporation, and Endorsement: Everson's Muddled Legacy of Incorporation and Legislating Out of the Passive Display Quandary, (August 15, 2013).
• Brian K. Mosley, Zoning Religion Out of the Public Square: Constitutional Avoidance and Conflicting Interpretations of RLUIPA's Equal Terms Provision, (Arizona Law Review, Vol. 55, pp. 465-97 (2013)).
• Yuksel Sezgin & Mirjam Künkler, Regulation of 'Religion' and the 'Religious': The Politics of Judicialization and Bureaucratization in India and Indonesia, (August 9, 2013).

From SmartCILP:

• Leslie C. Griffin, The Sins of Hosanna-Tabor, 88 Indiana Law Journal 981-1019 (2013).
• Robert Jon Araujo, A Trinity of Viewpoints On the Moral Perspective In the Public Square: Murray, Kennedy, and Cuomo, [Abstract], 27 Notre Dame Journal of Law, Ethics & Public Policy 333-376 (2013).
• John Schoenig, Parental Choice, Catholic Schools, and Educational Pluralism At the Dawn of a New Era in K-12 Education Reform, [Abstract], 27 Notre Dame Journal of Law, Ethics & Public Policy 513-539 (2013). 

Pakistani Cleric Charged With Planting Blasphemy Evidence Acquitted For Lack of Witnesses

In a widely-followed case in Pakistan last year, a court dismissed blasphemy charges that had been brought against a Christian girl, Rimsha Masih, after it appeared that a local mullah had planted charred pages from a Qur'an in the other papers that Masih was carrying in order to strengthen the case against her. (See prior posting.) Subsequently police arrested the mullah, Khalid Jadoon, and charged him with blasphemy for tearing out the pages he planted.  However, Pakistan Today reports that on Saturday, Jadoon was acquitted for lack of evidence. All the witnesses in the proceedings retracted their prior statements against Jadoon.

Recent Prisoner Free Exercise Cases

In Kaufman v. Pugh, (7th Cir., Aug. 16, 2013), the 7th Circuit held that an inmate's atheist study group request should be treated on an equal footing with requests by religious groups. Before denying the request for lack of interest, there must be a way for inmates to designate atheism as their alternative religious viewpoint. Denial of a new religious emblem and of used books sent to plaintiff was upheld.

In Jackson v. Phoenix, 2013 U.S. Dist. LEXIS 112974 (SD IL, Aug. 12, 2013), an Illinois federal district court permitted an inmate to proceed with his free exercise and RLUIPA claim that he was denied a halal diet.

In Clay v. Parker, 2013 U.S. Dist. LEXIS 113028 (WD TN, Aug. 12, 2013), a Tennessee federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 113410, July 23, 2013) and dismissed an inmate's free exercise and RLUIPA suit on statute of limitations grounds, holding that his administrative remedies were exhausted when plaintiff completed the internal prison system's complaint system, and not at the later date that he completed the Tennessee Human Rights Commission process.

In Rose v. Muhammed, 2013 U.S. Dist. LEXIS 113197 (SD NY, Aug. 7, 2013), a New York federal district court adopted a magistrate's recommendation (Rose v. Masiey, 2013 U.S. Dist. LEXIS 113741, July 16, 2013), and dismissed for failure to exhaust administrative remedies an inmate's complaints that the handling of food at Rikers Island facility led to meals that failed to comply with Halal requirements.

In Garnica v. Washington Department of Corrections, 2013 U.S. Dist. LEXIS 114322 (WD WA, Aug. 13, 2013), a  Washington federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 114328, June 19, 2013) and dismissed a Muslim inmate's complaint regarding the adequacy of Ramadan meals and timing of the Eid ul-Fitr feast.

In Nellum v. Stiltner, 2013 U.S. Dist. LEXIS 114476 (ED CA, Aug. 12, 2013), a California federal magistrate judge recommended dismissing an inmate's free exercise complaint that his Bible was missing following a cell search.

In Coleman v. Jabe, 2013 U.S. Dist. LEXIS 114551 (WD VA, Au. 13, 2013), a Virginia federal district court dismissed a Salafi Muslim inmate's challenge to policies that establish an official compact-disc vendor; establish an official prayer-oil vendor; omit halal meat from VDOC's "Common Fare" diet; and result in grouping Salafi Muslims with Sunni Muslims for group worship.

In Nzaddi v. Dinardo, 2013 U.S. Dist. LEXIS 115508 (D MA, Aug. 14, 2013), a Massachusetts federal district court dismissed a transgender Bah'ai inmate's claims relating to wearing women's "religious headwear" for modesty, the practice of several holistic rituals, and "a religious-dietary syntax" involving unpeeled, unprocessed, uncooked and chemical-free food.

In Avery v. Elia, 2013 U.S. Dist. LEXIS 115775 (ED CA, Au. 14, 2013), a California federal magistrate judge allowed a Wiccan inmate to move ahead with his complaint that he was denied use of a fire pit and his religious altar was confiscated.

In Gray v. Stolle, 2013 U.S. Dist. LEXIS 116478 (ED VA, Aug. 16, 2013), a Virginia federal district court, while dismissing an inmate's other claims, allowed the inmate (who was studying Judaism) to move ahead with his complaint that his request for a kosher diet was denied.

In Depaola v. Ray, 2013 U.S. Dist. LEXIS 116553 (WD VA, Aug. 16, 2013), a Virginia federal district court adopted, with modifications, a magistrate's recommendations and rejected a Muslim inmate's complaint that female guards might have witnessed him being strip searched. It dismissed on qualified immunity grounds plaintiff's damage claims complaining about Jumu'ah services on muted DVD, and his inability to perform wudu and pray while on a transport to a court hearing. The court remanded to the magistrate for further consideration the issue of whether plaintiff is entitled to an injunction requiring close-captioning of the DVD Jumu'ah services. UPDATE: The magistrate's opinion is at 2013 U.S. Dist. LEXIS 117182, July 22, 2013.

Religious Group Leader's Conviction For Sexual Contact With Minor Upheld

In State of New Mexico v. Bent, (NM App., Aug. 15, 2013), the New Mexico Court of Appeals upheld the convictions of the leader of a New Mexico religious community for criminal sexual contact with a minor and contributing to the delinquency of a minor. According to the court:

Defendant was the leader of a religious group, and his convictions were based on unclothed experiences with two teenage girls who were members of the community, which he claimed were purely spiritual healings....

Among the numerous arguments that the court rejected in affirming Wayne Bent's conviction was an assertion by defendant that his counsel was ineffective by failing to raise a defense under New Mexico’s Religious Freedom Restoration Act.

UPDATE: The court issued a substituted opinion on Aug. 26.

Plaintiff's Objection To Name Badge States Valid Title VII Religious Discrimination Claim

In Ambrose v. Gabay ENT & Associates, P.C., (ED PA, Aug. 15, 2013), a Pennsylvania federal district court allowed a former medical receptionist to proceed with her Title VII religious discrimination and retaliation claims against her former employers who insisted that she wear a name badge that contained a list of workplace rules under the heading "Our Ten Commandments." Plaintiff found it sacrilegious to wear the badge because it contravened the Ten Commandments she follows as a tenet of her Roman Catholic faith. She was willing to post them elsewhere, but not wear them in a way that identified her personally with the statements.

Letter To Doctor Opposing Abortion Clinic Was Not True Threat Under FACE

In United States v. Dillard, (D KS, Aug. 15, 2013), a Kansas federal district court dismissed a civil action brought by the United States against pro-life advocate Angela Dillard under the federal Freedom of Access to Clinic Entrances Act. As related by the opinion:

On January 19, 2011, Angel Dillard wrote a letter to Dr. Mila Means, who had publicly announced plans to open an abortion services clinic in Wichita, Kansas. Most of the letter centers on arguments from Scripture, appeals to conscience, and the practical disadvantages and difficulties associated with such a clinic. But in the body of the letter, Dillard also wrote that “You will be checking under your car everyday—because maybe today is the day someone places an explosive under it.”

The court concluded that the letter did not constitute a true threat.

Qui Tam Action Claims Hawaii Churches Cheated Schools Out of Millions of Dollars of Rent

In Hawaii, a qui tam whistle blower lawsuit against 5 churches, originally filed under seal in March, was unsealed Aug. 14. The complaint (full text with press release) in State of Hawaii ex rel. Kahle and Huber v. New Hope International Ministries, (HI Cir. Ct., filed 3/22/2013), contends that the churches submitted false records and statements to deprive Hawaii schools of $5.6 million in unpaid or underpaid rent and utility charges for weekend use of school buildings, parking lots and facilities over the past 6 years. The churches routinely under reported the length of time they were using facilities and the extent of use.  The suit asks for treble damages and civil penalties on behalf of the state. Under HRS 661.27, plaintiffs if successful in the action, are entitled to 15% to 25% of proceeds of the lawsuit.  In their press release, the two individuals who filed the lawsuit contend that:

there is long‐standing and widespread abuse in the DOE’s “Community Use of School Facilities Program.” The abuse has cost taxpayers millions of dollars in lost revenue, and million‐dollar losses are continuing every year because of unpaid rental fees and utilities charges by literally hundreds of churches operating out of nearly as many public schools.  Relators have called for the entire program to be audited, reformed and for all monies owing to be collected.

As part of their investigation, Relators produced a 2,242‐page report ...[which] contains substantial material evidence of widespread abuse and outright fraud perpetrated by churches, often with the explicit approval or knowledge of school principals and/or their designees. There are literally hundreds of churches operating out of Hawaii’s public schools every weekend, some of whom who have been holding worship services and other church activities at the same schools for 5, 10, 15, even 20 years and longer, without ever attempting to find an alternate location.

Honolulu Civil Beat and Friendly Atheist blog report on the lawsuit. [Thanks to Scott Mange for the lead.]

Contraceptive Coverage Preliminary Injunction Followed Up by Stay of Proceedings

In Tonn & Blank Construction, LLC v. Sebelius, 2013 U.S. Dist. LEXIS 116173 (ND IN, Aug. 16, 2013), an Indiana federal district court that had previously issued a preliminary injunction barring enforcement of the Affordable Care Act contraceptive coverage mandate against plaintiff construction company until the 7th Circuit decides two cases before it raising the same religious liberty issues, followed up by staying proceedings in plaintiff's case for the same period of time.

Malaysia Strips Foreign Resort Owner Of Residency For Allowing Muslim Prayer Room Use by Buddhists

Malay Mail reports today that in Malaysia, the Home Ministry has summarily stripped a resort owner from Singapore of his permanent residence status in Malaysia for allowing the Muslim prayer room at his resort to be used for meditation by a group of Buddhist tourists. The resort owner was held for four days by police while the incident was being investigated. Civil liberties advocates criticized the move, saying that resort owner should at least have been given a hearing before the action against him was taken.

Company's Disability Insurance Is Not An Exempt "Church Plan"

In Story v. Aetna Life Insurance Co., (ND TX, Aug. 8, 2013), a Texas federal district court held that the disability insurance policy covering employees of Texas Health Resources is not a "church plan" that is exempt from ERISA. The court concluded that the most that had been shown was that Texas Health Resources  is a faith-based healthcare organization that takes religious principles into account in providing the health services it renders. It was not shown that its insurance plan was "established and maintained . . .. by a church or by a convention or association of churches" for its employees.

Egyptian Christian Churches and Property Are Attacked

Al Jazeera today carries a feature article titled Egypt's Christians Face Unprecedented Attacks.  It reports that amid Wednesday's violence between the military and Muslim Brotherhood supporters, alleged Morsi supporters attacked dozens of Coptic Christian churches and Christian-owned properties. It added:

Mina Thabet, an activist with Christian rights group the Maspero Youth Union, told Al Jazeera on Friday that at least 32 churches had been “completely destroyed, burned or looted” in eight different governorates over the previous two days. The group also recorded dozens of other attacks on Christian-owned shops, businesses and schools around the country.

UPDATE: The U.S. Commission on International Religious Freedom issued a press release on Aug. 16 condemning  the violence against protestors and the targeting of churches in Egypt.

Japan, South Korea Distressed At War Shrine Visits By Top Japanese Politicians

Japanese politicians angered China and South Korea yesterday when they marked the 68th anniversary of Japan's World War II surrender by visiting the Yasukuni shrine. China summoned Japan's ambassador to lodge a complaint about the visits.  Britain's Morning Star reports that Japanese Prime Minister Shinzo Abe did not visit the shrine personally, but sent an offering through an aide.  Two cabinet ministers paid respects in person wearing morning suits. The Shinto shrine honors Japanese war dead, including 14 top convicted war criminals.  AFP reports that throughout the day yesterday, nearly 100 Japanese lawmakers-- including 3 cabinet ministers-- visited the controversial shrine. (See prior related posting.)

Permanent Injunction Issued Barring Oklahoma's 2010 Anti-Sharia Constitutional Amendment

In Awad v. Ziriaz, (WD OK, Aug. 15, 2013), an Oklahoma federal district court issued a permanent injunction barring Oklahoma election officials from certifying an anti-Sharia state constitutional amendment approved by 70% of Oklahoma voters in 2010. The court, following the 10th Circuit's approval in 2012 of a preliminary injunction in the case, said: "Because defendants have failed to satisfy strict scrutiny, the Court finds that the proposed amendment’s references to Sharia law violate the Establishment Clause." AP reports on the decision.

Report Urges Allowing Sermons to Endorse Political Candidates

In January 2011, the U.S. Senate Finance Committee's ranking member, Sen. Chuck Grassley, released a staff review of the activities of media-based ministries, focusing on the financial accountability of tax-exempt religious organizations. The Staff Memo also recommended that the IRS sponsor an Advisory Committee made up of representatives of churches and other organizations.  In response, the Evangelical Council for Financial Responsibility set up a Commission on Accountability and Policy for Religious Organizations.  (See prior posting.) The Commission issued an initial report in December 2012. (See prior posting.) In a press release issued Wednesday, the Commission announced the release of its final report. The report, Government Regulation of Political Speech by Religious and Other 501(c)(3) Organizations concludes that the status quo is untenable and makes a number of recommendations for change.  Among the recommendations is the following:

The Commission believes that a communication related to one or more political candidates or campaigns that is made in the ordinary course of a 501(c)(3) organization’s regular and customary religious, charitable, educational, scientific, or other exempt purpose activities should not constitute a prohibited activity under Section 501(c)(3), so long as the organization does not incur more than de minimis incremental costs with respect to the communication.... The exception should expressly include sermons and other communications delivered as part of a religious organization’s regular and customary worship services, provided that no more than de minimis incremental costs are incurred for communications directly related to one or more political candidates or campaigns.

USA Today has additional coverage.  [Thanks to Steven H. Sholk for the lead.]

UPDATE: In an Aug. 15 statement, Independent Sector took issue with the Commission's recommendations, saying: "Allowing the endorsement of political candidates, as this report calls for, is tantamount to allowing political agents to use the public’s goodwill towards the charitable sector as a vehicle to advance, through financial contributions, their own partisan political will."

Federal Court Says Alien Tort Claim For LGBTI Persecution In Uganda Can Proceed

In Sexual Minorities Uganda v. Lively,  (D MA, Aug. 14, 2013), a Massachusetts federal district court, in a 79-page opinion, refused to dismiss a suit under the federal Alien Tort Statute (as well as state civil conspiracy and negligence claims) brought by a Ugandan LGBTI advocacy group against an American evangelical anti-gay activist who allegedly "has attempted to foment, and to a substantial degree has succeeding in fomenting, an atmosphere of harsh and frightening repression against LGBTI people in Uganda." The suit against Scott Lively, president of the Abiding Truth Ministries, seeks damages as well as declaratory and injunctive relief. In permitting plaintiff to proceed with the lawsuit, the court said in part:

[M]any authorities implicitly support the principle that widespread, systematic persecution of individuals based on their sexual orientation and gender identity constitutes a crime against humanity that violates international norms.....  [A]iding and abetting a crime against humanity is a well established offense under customary international law, and actions for redress of this crime have frequently been recognized by American courts as part of the subclass of lawsuits for which the ATS furnishes jurisdiction.... 

Second, the restrictions ... on extraterritorial application of the ATS do not apply to the facts as alleged in this case, where Defendant is a citizen of the United States and where his offensive conduct is alleged to have occurred, in substantial part, within this country. Indeed, Defendant ... is alleged to have maintained what amounts to a kind of “Homophobia Central” in Springfield, Massachusetts....

Third, clear authority supports Plaintiff’s standing here. Fourth, the argument that Defendant’s actions have constituted mere expression protected under the First Amendment is, again, premature..... [S]ufficient facts are alleged... to support the claim that Defendant’s behavior crossed well over any protective boundary established by the First Amendment. Fifth, and finally, the arguments attacking the claims under Massachusetts state law have not been convincingly developed.

Center for Constitutional Rights and The Rainbow Times report on the decision.

Abuse Victims Say Judge Had Conflict of Interest In Milwaukee Archdiocese Trust Fund Ruling

As previously reported, last month Wisconsin federal district court judge Rudolph T. Randa held that a $55 million cemetery perpetual care trust fund is unavailable to creditors, including abuse victims, in the bankruptcy reorganization of the Milwaukee Catholic Archdiocese.  On Monday, the Unsecured Creditors' Committee (representing abuse victims) filed a Motion to Vacate the Judgment and a Memorandum in Support of the Motion, as well as a Motion to require Judge Randa to recuse himself and a Memorandum in Support of the Motion. Petitioners argue:

at least nine of Judge Randa’s relatives (including his mother, his father and his wife’s parents) are buried in cemeteries owned and operated by the Debtor, the very cemeteries that are to be maintained with the funds moved from the Debtor’s accounts to the Cemetery Trust before filing for bankruptcy.... [In addition] he is a party to a contract wherein the Cemetery Trust is the exclusive provider of care and maintenance for [his parents'] burial crypts, with an interest in how the funds are used.

Yesterday's Milwaukee Journal-Sentinel reporting on the motions, says that Judge Randa's ruling removed the last major asset available for a settlement with abuse victims.

L.A. Will Pay $950,000 In Attorney's Fees In RLUIPA Lawuit

The Los Angeles Times reports that Los Angeles City Council yesterday voted unanimously to pay $950,000 in attorneys' fees and costs to finally conclude a long-running RLUIPA lawsuit that was filed against it in 2010 by an Orthodox Jewish congregation seeking to use a residential property as a synagogue.  In May in Congregation Etz Chaim v. City of Los Angeles, (CD CA, May 15, 2013), a California federal district court held that the city's denial of a conditional use permit and a variance to the congregation violated RLUIPA. (See prior related posting).

New Contraceptive Coverage Challenge-- Individual Employee Seeks Religious Exemption

In the wake of dozens of lawsuits by for-profit businesses challenging the Affordable Care Act contraceptive coverage mandate on religious liberty grounds, yesterday the other shoe dropped as an individual-- who happens to also be a state legislator-- sued to obtain a court order allowing him to opt out of contraceptive coverage provided in his employer's plan. The complaint (full text) in Wieland v. U.S. Department of Health and Human Services, (ED MO, filed 8/14/2013), alleges that previously legislator Paul Wieland and his wife were able to choose a state health plan that did not cover contraceptives, abortifacients or sterilization, but that because of the mandate his insurer notified him that effective August 1 he would be placed in a plan that covers contraception and sterilization.  The complaint contends that plaintiffs, because of their Christian religious beliefs, do not want to furnish this coverage for their three daughters, age 12, 18 and 19. It contends that their premiums went up to pay for contraceptive and sterilization coverage, and that their premiums also partially fund medical services to other employees covered under the same plan.

In the complaint, plaintiffs cite Mo. Rev. Stat. § 191.724, enacted last year, that provides: "No employee... shall be compelled to obtain coverage for, or be discriminated against or penalized for declining or refusing coverage for, abortion, contraception, or sterilization in a health plan if such items or procedures are contrary to the religious beliefs or moral convictions of such employee or person."  A related provision of Missouri law was declared invalid by a federal court last year. (See prior posting.) The complaint filed yesterday contends that the mandate violates plaintiffs' rights under RFRA, the 1st and 5th Amendments and the Administrative Procedure Act. Thomas More Society announced the filing of the lawsuit. The St. Louis Post Dispatch reports on the suit.

California Supreme Court Rejects Last Ditch Effort To Enforce Proposition 8

As reported by the Los Angeles Times, the California Supreme Court yesterday denied the petition for a writ of mandate that was filed last month seeking to require county clerks in the state to enforce Proposition 8's ban on same-sex marriages, despite the U.S. Supreme Court's decision in June in Hollingsworth v. Perry.  The state supreme court's Aug. 14 order (full text) in Hollingsworth v. O'Connell did not give reasons for the denial of the writ of mandate. Petitioners had argued (see prior posting) that the injunction in Hollingsworth v. Perry (see prior posting) should be read narrowly to cover only the specific plaintiffs or specific counties involved in the case.

Split 3rd Circuit Denies En Banc Rehearing In Contraceptive Coverage Case

By a vote of 7-5 yesterday the U.S. 3rd Circuit Court of Appeals denied an en banc rehearing in Conestoga Wood Specialties Corp. v. Secretary of U.S. Department of Health and Human Services. In the case, a 3-judge panel in a 2-1 decision last month denied a preliminary injunction sought by a family-owned business to stop enforcement of the Affordable Care Act contraceptive coverage mandate. (See prior posting.) Alliance Defending Freedom announced that it would now petition the U.S. Supreme Court to review the decision.

Cameroon Closing A Number of Unregistered Christian Churches

Voice of America and the Cameroon Tribune report that in the west African nation of Cameroon the government has begun closing down a number of illegal Christian churches which it says are engaging in activities that are a threat to public order. The churches say that they have been targeted because their pastors have criticized the government of President Paul Biya. However, the government contends that the churches have engaged in a variety of improper activities from disturbing neighborhoods by use of loud speakers and instruments, to dividing families. Cameroon law requires government approval and registration of religious groups that wish to operate in the country. (Background.) The government says that the churches being closed have not registered and do not intend to do so.

Buckingham Palace Lists Young Albert and Leopold In Line of Succession Even Though They Are Catholic

Great Britain's 1701 Act of Settlement prohibits Catholics from succeeding to the throne. However, as reported Monday by The Express, on the Official Website of the British Monarchy five-year old Albert and three-year old Leopold are listed as 39th and 40th in line for the throne even though they are Catholics.  The boys' father, Lord Nicholas Windsor (great-grandson of George V), converted to Catholicism in 2001. His Croatian wife Paola is also a Catholic, and the two boys were baptized as Catholics. Buckingham Palace has not commented on the boys' inclusion in the Line of Succession, but some have suggested that they would not be disqualified until they are old enough to make up their own minds about religion, perhaps at the time of their confirmation.

Good News Clubs Sues School District Over Discriminatory Fees

Yesterday Child Evangelism Fellowship filed a federal lawsuit against the Cleveland, Ohio school district alleging that an elementary school applied the school district's fee policy in a manner that discriminated against CEF's Christian-based Good News Clubs. The complaint (full text) in Child Evangelism Fellowship of Ohio, Inc. v. Cleveland Metropolitan School District, (ND OH, filed 8/13/2013) alleges that the school district violated CEF's 1st and 14th Amendment rights by imposing a facilities use fee on it for use of school space for after-school meetings, but waiving the fee for the Boy Scouts. Liberty Counsel announced the filing of the lawsuit.

2014 National Religious Freedom Moot Court Competition Announced

George Washington University Law School has announced the details of its 2014 Religious Freedom Moot Court Competition for law school students. This year's Problem involves a challenge to a federal program that provides financial assistance for rebuilding after natural disasters.  At issue is the hypothetical program's coverage of houses of worship along with other community facilities. The Competition will be held Feb. 7-8, 2014 in Washington, D.C.

Illinois Diocese Settles Sex Abuse Lawsuit

According to today's Bergen County (NJ) Record, the Catholic Diocese of Peoria, Illinois has agreed to pay $1.35 million in a settlement of a lawsuit alleging that John J. Meyers-- its former bishop and now Archbishop of Newark-- failed to adequately investigate a 1995 report of sexual abuse by a priest. Plaintiff in the lawsuit and at least three other boys were abused by the priest, Monsignor Thomas W. Maloney, after the 1995 complaint against him.

Another Contraceptive Coverage Mandate Challenge; DOJ Wants Gilardi To Be Test Case In DC Circuit

Last week, yet another lawsuit was filed by a for-profit corporation and its owners challenging the Affordable Care Act's contraceptive coverage mandate.  The complaint (full text) in Trijicon, Inc. v. Sebelius, (D DC, filed Aug. 7, 2013), alleges:

The Mandate illegally and unconstitutionally requires Trijicon to violate its and its owners’ religious beliefs by forcing the company to provide abortion-inducing items, such as “Plan B” (the so-called “morning after pill”), Ella (the so-called “week after pill”), and intauterine devices (“IUDs”).

Trijicon is a leading manufacturer of sights and rifle scopes sold to hunters and to the military.  According to an Aug. 9 press release from Alliance Defending Freedom, the Justice Department has now notified the court that (as explained in plaintiffs'  motion for preliminary injunction) it will not oppose the granting of a preliminary injunction, so long as Plaintiffs agree to stay proceedings pending the D.C. Circuit Court of Appeals final disposition of a similar challenge to the ACA in Gilardi v. Sebellius. The government's action is consistent with steps it has taken in other cases to use Gilardi as the vehicle for the DC Circuit to pass on business challenges to the mandate.

An interesting side note-- in 2010 Trijicon became the center of news coverage when it agreed to stop including coded references to Bible verses as part of the serial number on rifle sights supplied to the military. (See prior posting.)

Court Temporarily Permits Continuation of Challenged Lease To Jewish School

An Albany County, New York trial court judge last week stayed until at least Oct. 18 a decision by the State Education Commissioner that would have invalidated a lease of a school building by the East Ramapo Central School District to an ultra-Orthodox Jewish girls' school operated by Congregation Avir Yakov of New Square, NY.  According to Sunday's Lower Hudson Journal News, originally the school building was sold to Avir Yakov for $3.1 million, but that sale was cancelled by the State Education Commissioner after the Attorney General's office charged that Avir Yakov had paid off an appraiser to submit an artificially low appraisal of the building. Since then, East Ramapo has rented the building to Avir Yakov for $19.000 a month plus $2000 per month for the right of first refusal to buy the building. The Education Commissioner, responding to the complaint of the Save Our Schools Coalition, decided that this was an inadequate rental amount.  East Ramapo argued for the stay pending appeal of the Commissioner's decision because  the school district would have had to cut school services to reflect its loss of the $252,000 of income it anticipated this year from the lease.  A cancellation would also have left the Jewish school without a building just as the school year begins.

Israel's National Tennis Team Gets Monetary Penalty For Rescheduling of Yom Kippur Match

JTA reports today that Israel's national tennis team has been ordered by the International Tennis Federation to pay the Belgian Tennis Association over $13,000 for the inconvenience of rescheduling a Davis Cup match that was originally to take place on Yom Kippur.  Initially the Belgian team refused to reschedule the Sept. 14 match in Antwerp. The International Tennis Federation stepped in and changed the date to Sept. 15, but with the monetary penalty. The Israel Tennis Association is a non-profit organization.

Tennessee Magistrate Objects To Child Being Named "Messiah"

AP and WBIR report on the decision of a Newport, Tennessee Child Support Magistrate who last week ordered that a 7-month old child's name be changed to Martin instead of Messiah, even though Messiah was among the fastest rising baby names last year. The parents were in court because they could not agree on a last name for their child, but Magistrate Lu Ann Ballew ordered the child's first name changed also. She ruled that it is in the best interest of the child, particularly if he grows up in largely Christian Cocke County (TN).  In issuing the order that the boy be named Martin DeShawn McCullough (incorporating the last names of both parents), Magistrate Ballew said: "The word Messiah is a title and it's a title that has only been earned by one person and that one person is Jesus Christ." The child's mother is appealing the magistrate's decision to the Tennessee Chancery Court. A hearing is scheduled for Sept. 17.

Suit Charges School Officials With Ignoring Anti-Jewish Harassment of 13-Year Old

The Quincy (MA) Patriot Ledger reports on a lawsuit filed July 30 in Massachusetts federal district court by the parents of a 13-year old charging Carver, Massachusetts school officials with ignoring and failing to prevent anti-Semitic harassment and bullying of their son.  The suit alleges that since the boy began attending Carver Middle High School in 2011 he has been subjected to derogatory slurs, Nazi salutes and physical abuse from a group of other boys, two of whom were arraigned last month on assault and battery and civil rights charges.

Recent Articles and Books of Interest

From SSRN:

• Kara Loewentheil, When Free Exercise Is A Burden: Protecting 'Third Parties' in Religious Accommodation Law, (August 6, 2013).
• Susan C. Hascall, Islamic Commercial Law and Social Justice: Shari’ah Compliant Companies, Workers’ Rights, and the Living Wage, (St. John's Law Review, Vol. 88, No. 1, 2014).
• Engy Abdelkader, To Judge or Not to Judge: A Comparative Analysis of Islamic Jurisprudential Approaches to Female Judges in the Muslim World (Indonesia, Egypt and Iran), (Fordham International Law Journal, Forthcoming).
• Iain T. Benson, Religious Interfaith Work in Canada and South Africa with Particular Focus on the Drafting of a South African Charter of Religious Rights and Freedoms, (HTS Teologiese Studies/Theological Studies 69(1), Art. #1319, DOI: org/10.4102/hts.v69i1.1319 (2013)).
• Muhammad Munir, Freedom of Expression, Information, Thought and Religion in Islam and Convention on the Rights of the Child (CRC), (July 13, 2013).

From SmartCILP:

• William E. Nelson, The Persistence of Puritan Law: Massachusetts, 1660-1760, [Abstract], 49 Willamette Law Review 307-409 (2013).

New Books:

• Steven D. Smith, The Rise and Decline of American Religious Freedom, (Harvard Univ. Press, Feb. 2014).
• Kimberly D. Richman, License to Wed: What Legal Marriage Means to Same-Sex Couples, (NYU Press, Dec. 2013).

British Equalities Office Implements Long Process to Implement Ban On Caste Discrimination

For a number of years, Britain has debated whether to include caste discrimination among individuals from the Indian subcontinent as part of its anti-discrimination laws. The Equality Act 2010, Sec. 9, gave the government authority to issue an Order to include caste discrimination. Then the Enterprise and Regulatory Reform Act 2013, Sec. 97, required the government to issue such an Order, and not repeal it until at least 2015.  Last month the Government Equalities Office issued a timetable (full text) for public consultation and drafting of the caste legislation, projecting that a final draft Order would be introduced into Parliament in Summer 2015. The Dalit Solidarity Network, in a July 29 press release, charged that the timetable is really an attempt by the government to delay or kill the ban.  As reported yesterday by the Times of India, the Alliance of Hindu Organisations opposes the ban:

For the AHO, the two-year consultation has come as a fulfillment of its demand. It wants the consultation to address "the issues of definition of caste, the need to avoid disclosure of caste and a sunset clause to allow the removal of the legislation". AHO has also expressed concerns about the "intolerant, offensive and inaccurate comments" that had been made, "in particular in the House of Lords", against the Hindu community during the debates in April on the anti-caste discrimination law.

Recent Prisoner Free Exercise Cases

In Williams v. Allen, 2013 U.S. Dist. LEXIS 109388 (MD GA, Aug. 5, 2013), a Georgia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 110468, July 3, 2013) and permitted a Muslim inmate to proceed against the prison warden with his complaint that his free exercise rights were infringed when he was denied a nutritionally adequate vegan diet.

In Salim v. Carlson, 2013 U.S. Dist. LEXIS 110459 (ED WI, Aug. 6, 2013), a Wisconsin federal district court, finding factual disputes, allowed a Muslim inmate to move ahead with his complaint that while in administrative segregation he was denied a Qur'an, and was denied a Salat schedule and clock, the opportunity to fast during Ramadan and to participate in feast day activities.

In Leach v. New York City, 2013 U.S. Dist. LEXIS 110611 (SD NY, Aug. 2, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 110658, March 6, 2013) and dismissed a suit by an inmate who claimed to be an "unorthodox [J]ewish religious observer". Plaintiff complained that the City failed to provide him with Kosher Matzos on a regular basis and did not allow him to speak with a Rabbi on one occasion.

In Diggs v. Volpe, 2013 U.S. Dist. LEXIS 111365 (SD NY, Aug. 7, 2013), a New York federal district court dismissed a Muslim inmate's complaint that for a 4-month period while in disciplinary confinement he was unable to attend congregate religious services.

In Vazquez v. Officer Waln, 2013 U.S. Dist. LEXIS 111437 (MD NC, Aug. 7, 2013), a North Carolina federal magistrate judge dismissed RLUIPA, free exercise and equal protection claims by a Mexican-born Native American inmate who objected when Religious Box was confiscated because he failed to store it in his locker.

In Perry v. Knowles, 2013 U.S. Dist. LEXIS 111617 (ED TN, Aug. 8, 2013), a Tennessee federal district court dismissed an inmate's complaint that the jail administrator confiscated his religious material and failed to tell him the time so he would know when to pray.

In Mead v. Palmer, 2013 U.S. Dist. LEXIS 112291 (ND IA, Aug. 9, 2013), an Iowa federal district court permitted a civilly committed sex offender to proceed with his complaint that for two years authorities have refused to furnish him with a minister of his faith to minister to him in a Sunday service.

U.S. Flies Rescued Family Back After Their Failed Attempt To Sail To Kiribati For Religious Freedom

AP reports that U.S. Embassy officials in Chile have arranged for the flight back to the United States of 5 members of a northern Arizona family who were rescued after 2 months at sea in a failed attempt to sail their small boat from California to the island nation of Kiribati. According to Hannah Gastonguay, her family left the U.S. because they were fed up with government interference with religious independence. She said that as Christians they don't believe in "abortion, homosexuality, in the state-controlled church," and objected to being "forced to pay these taxes that pay for abortions we don't agree with." The Gastonguays are not members of any church; their beliefs come through reading the Bible and prayer.

Glitch In Affordable Care Act Threatens Viability Of Church Health Plans; Fix Introduced But Unlikely To Pass

Religion News Service reports today on a technical glitch in the Affordable Care Act that will make it difficult for churches to continue to offer church health plans.  Under the Act, tax credits are available to low-income and middle class families to assist them in purchasing insurance through the government-run exchanges.  However the same credits are not available for church employees to use to purchase insurance under church plans. This means that many clergy and other church employees who qualify for tax credits are likely to pull out of church plans and purchase insurance on exchanges. That may well jeopardize the viability of church plans.  S. 1164, The Church Health Plan Act of 2013, was introduced in June by Senators Mark Pryor (Ark.) and Chris Coons (Del.) to correct this inconsistency so tax credits can be used for church plans.  However Republican opposition to enacting improvements to Obamacare make it unlikely that the bill will be enacted.

Same-Sex Marriage Developments Continue

Developments stemming from the U.S. Supreme Court's recent same-sex marriage decisions continue to be reported:

According to yesterday's Deseret News, Utah businessman Jonathan Johnson, executive vice chairman of  Overstock.com, is undertaking a national campaign, beginning in Utah, urging states to amend their constitutions to protect religious organizations from being required to  "solemnize, officiate in, or recognize any particular marriage or religious rite of marriage in violation of its beliefs."

Under American immigration law, an individual may receive a derivative visa if his or her spouse or first-degree relative is eligible for U.S. residency.  Haaretz reports that the American embassy in Israel has issued its first derivative visas to Israeli same-sex spouses who were married legally outside of Israel.

Court Invalidates Temporary Land Use Limits On Pregnancy Center As Overbroad and Vague

In The Life Center, Inc. v. City of Elgin, Illinois, (ND IL, Aug. 8, 2013), an Illinois federal district court invalidated Elgin's temporary land use provision as unconstitutionally overbroad and vague. The ordinance was challenged by The Life Center, a religiously-based organization that furnishes pregnant women with religious literature and certain prenatal services. Its mobile facility operates from commercial parking lots with the consent of the owners.  The ordinance limits the number of days the facility can operate. The court held:

The definitions under the Code for the terms "land use" and "structure" are so broad, they would encompass virtually all types of activity, including a substantial amount of activity protected under the First Amendment.

Plaintiffs claim that the 2012 amendments to the city ordinance that put in place the challenged provisions were targeting The Life Center. Christian Newswire carries TLC's press release on the decision.

U.S. Amicus Brief In Supreme Court Supports Town's Invocation Policy

Some two dozen amicus briefs in support of the Town of Greece, New York's prayer policy have been filed with the U.S. Supreme Court in Galloway v. Town of Greece. The case is scheduled to be argued this term.  (Amicus briefs in support of plaintiffs challenging the policy are not yet due.) Among the most interesting of the briefs supporting the town is the one filed by the Solicitor General on behalf of the United States. (Full text.) In the brief filed Aug. 2, the SG argues that legislative prayer which does not proselytize, disparage any religion or advance a particular faith does not violate the Establishment Clause "merely because most prayer-givers are Christian and many or most of their prayers contain sectarian references." The brief adds: "Neither federal courts nor legislative bodies are well suited to police the content of such prayers." The Second Circuit held that the town's invocation practices convey the impression that it is endorsing Christianity. (See prior posting.)

Obama Sends Muslims Eid-al-Fitr Greetings

The White House yesterday released a statement (full text) sending warmest greetings from the President and First Lady to Muslims in the U.S. and around the world celebrating Eid-al-Fitr. The President also used the statement to highlight the humanitarian food and other aid being sent to the people of Syria.

Plaintiff Gives Up On Trying to Hold Vatican Liable In Priest Abuse Case

On Aug. 5, the U.S. 9th Circuit Court of Appeals dismissed at the request of the parties the appeal in Doe v. Holy See which sought to hold the Vatican vicariously liable in a priest sexual abuse case. AP reports that plaintiff's lawyer Jeff Anderson said that his client has grown tired after ten years of litigation. Vatican Radio has published an interview about the case with the Vatican's lawyer Jeffrey Lena. (See prior related posting.)

Suit Challenges Revised Contraceptive Coverage Mandate Accommodation for Non-Profits

In June, the Department of Health and Human Services issued final rules providing a compromise for religiously sponsored non-profits such as hospitals and colleges that object to the Affordable Care Act's contraceptive coverage mandate. (See prior posting.) The Becket Fund announced yesterday that a lawsuit challenging these revised rules has been filed by Colorado Christian University whose attempt last year to challenge the mandate was dismissed on ripeness grounds. The complaint (full text) in Colorado Christian University v. Sebelius,  (D CO, filed 8/7/2013) contends that the final compromise is "meaningless,"  saying in part:

147. In sum, for both insured and self-insured organizations, the accommodation is nothing more than a shell game that attempts to disguise the religious organization’s role as the central cog in the government’s scheme for expanding access to contraceptive and abortifacient services.

148. Despite the accommodation’s convoluted machinations, a religious organization’s decision to offer health insurance and its self-certification continue to serve as the sole triggers for creating access to free contraceptive and abortifacient services.

State Department Launches New Office of Faith Based Community Initiatives

Last October, the U.S. State Department's Religion and Foreign Policy Working Group issued a White Paper recommending creation of an institutionalized mechanism for the State Department to use in communicating and collaborating with religious communities around the world. At a press conference today, Secretary of State John Kerry announced the launching of the State Department's Office of Faith Based Community Initiatives whose mission is to partner with faith communities to solve global challenges. The Office will be headed by Dr. Shaun Casey.  Also speaking at the press conference, Melissa Rogers, Director of the White House Office of Faith-Based and Neighborhood Partnerships, issued some 1st Amendment cautions, saying:

[A] guiding principle for all of this work will be that our actions must be consistent with the United States Constitution. Employees of our government can and should engage faith-based leaders and communities on US policy priorities just as they do other civil society leaders and communities. At the same time, our precious religious freedom guarantees of the First Amendment mean that we must observe some special rules when we engage religious actors and matters, such as ensuring governmental neutrality toward faith. All diplomatic and consular posts will receive guidance and continuing assistance on these important issues.

The exact relationship of the new office to existing State Department officials concerned with religious issues is not clear, though both Secretary Kerry and Dr. Casey assured cooperation with them.  Currently serving in roles related to religion are  Ambassador-at-Large for International Religious Freedom Suzan Johnson Cook, Special Envoy to the Organization of Islamic Cooperation Rashad Hussain, Special Envoy to Monitor and Combat Anti-Semitism Ira Forman, and Special Representative to Muslim Communities Farah Pandith.

Meanwhile, The Immanent Frame has published an exchange between 17 experts on the prospects for the new Office and its implications for religious diversity and non-religious civil society organizations.

Federal Faith-Based Partnership Reforms Grind Slowly Ahead With New OMB Memo

As previously reported, in April 2012 the White House issued the Recommendations of the Interagency Working Group on Faith-Based and Other Neighborhood Partnerships which provides federal agencies with guidance on carrying out Executive Order 13559 (Nov. 17, 2010)-- the executive order that adopted a number of recommendations of the President's faith-based task force. Now, as announced last week by the White House Office of Faith-based and Neighborhood Partnerships, the Office of Management and Budget has finally issued a Memorandum (full text) instructing federal agencies to take steps, consistent with that Report, to carry out the 2010 Executive Order.  However, further delay is likely since the Memorandum states that the Working Group that created the 2012 Report will now be reconvened to develop a plan for agency implementation of the Executive Order. After that plan is issued, agencies will have 120 days to send OMB their agency-specific plan for amending their rules and guidance documents. Religion News Service yesterday reported on  these developments. [Thanks to Michael Lieberman for the lead.]

Kenyan Lawyer Wants International Court To Vindicate Jesus

According to a report last week in the Jerusalem Post and an earlier report by Standard Digital News, a Kenyan lawyer is attempting to get the International Court of Justice (ICJ) to give legal vindication to Jesus by declaring his trial before the Roman courts centuries ago a legal nullity. The suit was originally filed in the High Court of Kenya in 2007. (Full text of complaint.) When the Kenyan courts rejected the suit, lawyer Dola Indidis petitioned the ICJ.  The suit names , Tiberius (emperor of Rome, 42 BC-37 AD), Pontius Pilate (Governor of Judea), Annas, Jewish Chief Priest, Elders and Teachers and King Herod as defendants. It also names the Republic of Italy and the State of Israel on the theory that they are the successors to the laws of the Roman Empire that were in force at the time of Jesus' crucifixion. An ICJ spokesman says it only has jurisdiction in suits between states, and not here where a private party is suing. However Indidis says that the ICJ has constituted a panel to hear the case.

Former School Employee Who Suffered Religious Pressure Can Proceed On Discrimination and Retaliation Claims

In Scott v. Montgomery County School Board, (WD VA, Aug 5, 2013), a Virginia federal district court allowed a former school library media aide to move forward with her religious discrimination and retaliation claims growing out of alleged Christian religious pressure from her immediate supervisor. The court however dismissed plaintiff's hostile work environment claim, as well as her claim for punitive damages.

Wire Service Exempt From State Anti-Discrimination Ban In Refusal To Publish Article On Religious Beliefs

In Medhi v. Commission on Human Rights and Opportunities, (CT App., official release date: Aug. 13, 2013), the Appellate Court of Connecticut dismissed a suit in which plaintiff claimed he had been discriminated against on the basis of religion when the Associated Press refused to publish articles he had written regarding his religious beliefs.  The court affirmed the Human Rights Commission's holding that AP was exempt from the ban on religious discrimination in public accommodations (CT Stat. § 46a-64 (a)) where the complaint alleged a matter reserved for journalistic discretion. Ordering AP to print the material would have violated the 1st Amendment.

Air Force Agrees That Officers May Take Secular Version of Commissioning Oath

The American Humanist Association reports today that the U.S. Air Force has responded positively to its letter complaining on behalf of an Officer Trainee about Air Force Form 133 (Oath of Office).  The oath of office on the form (while allowing the individual signing it to "affirm" rather than "swear") ends with the phrase "so help me God." AHA's letter, complaining on constitutional grounds, was sent on behalf of an officer trainee who was required by his flight commander to sign the oath, even though the theistic reference violates his beliefs. The Officer Trainee was also told he would be required to take an identical verbal oath.  Air Force officials, admitting their mistake and apologizing, now assure AHA that the Officer Trainee will be permitted to take a secular version of the verbal oath that is administered, and will be allowed to revise the written version he signed. Other members of the graduating class are also being advised of the secular option.

Russian Kopimists Plan To Challenge Internet Piracy Law As Insult To Religious Feelings

In Russia, a new law that takes effect this week aimed at stopping Internet piracy has given a stronger hand to copyright holders. (Hollywood Reporter.)  Opponents of the law have devised an ingenious new strategy.  As reported by RT and by Network World, activists in 5 Russian cities will apply to register the Missionary Church of Kopimism as a religion. Kopimism is a movement, centered in Sweden, that believes sharing information is a sacred value. Once the Kopimists complete the paperwork, they then plan to file suit to invalidate the new anti-piracy law on the ground that it violates another recent law that prohibits insulting the religious beliefs and feelings of citizens. (See prior posting.)

County Commissioners Pray In Another Room To Technically Comply With Court Order

As previously reported, last month a federal district court issued a preliminary injunction barring the Rowan County, North Carolina Board of Commissioners from opening Board meetings with sectarian prayers. According to the Salisbury Post, at yesterday's Board meeting the commissioners showed technical compliance. After opening the meeting and reading a statement saying they believed the injunction was unconstitutional, the commissioners briefly recessed the meeting so that they could go into another room and pray. During the three minutes they were gone, someone attending the meeting stood up and offered their own prayer, ending "in Jesus' name." The commissioners returned before that prayer was completed.

Indicted Minister of Cannabis Church Wins Partial RFRA Victory

Hawai'i Daily News reports that last Wednesday a Hawaii federal district court gave a partial victory to Rev. Roger Christie who is charged with distributing marijuana to his parishioners as part of his religious ministry.  Judge Leslie E. Kobayashi ruled that as a matter of law, two of the elements of a Religious Freedom Restoration Act defense have been shown.  Christie's actions stem from a sincere belief in a legitimate religion, and the government has substantially burdened his religious exercise. The government can still prevail if at trial it shows that it had a compelling interest in barring the religious use of cannabis here, and that it used the least restrictive means to further that interest.

Australian Election Date Moved, Avoiding Conflict With Yom Kippur

Australia's Prime Minister Kevin Rudd yesterday called elections for Sept. 7, instead of the Sept. 14 date that had been set by former Prime Minister Julia Gillard.  The Sept. 14 date conflicted with the Jewish holy day of Yom Kippur. As reported by the Times of Israel:

Australia, home to more than 100,000 Jews, has compulsory voting, meaning all citizens must cast their vote in national elections or face a penalty, usually a fine or community service. Since elections are always held on Saturdays, Orthodox Jews are already used to casting their votes via the mail, but there was concern that [if elections were scheduled for Yom Kippur] less observant members of the community may fail to follow suit and miss voting by going to synagogue.