Religion Clause

Monday, September 02, 2013

Court Dismisses Suit By Hutterite Faction Against Opposing Attorneys

In Hutterville Hutterian Brethren v. Sveen, (D SD, Aug. 30, 2013), a South Dakota federal district court dismissed the latest in a long series of lawsuits and appeals surrounding a schism in the Hutterite colonies in the Dakotas and Minnesota. This suit for damages against the attorneys who represented the large majority of colonies that followed Rev. Joseph Wipf, as well as against the court-appointed receiver, alleged fraud, deceit, breach of fiduciary duty and RICO violations. It was filed by the small group of 5 colonies that remained loyal to Rev. Jacob Kleinsasser (who was accused of improper financial dealings). The court concluded:

... [A]s previous litigation has made clear, since voting memberships, directorships and officerships of Hutterville are inseparable from religious principles, these matters are shielded from judicial scrutiny under the First Amendment. ...[C]orporate governance cannot be decided without 'extensive inquiry into religious doctrine and beliefs' of the Hutterian faith."...

As individuals, the Waldner Plaintiffs as claimed members of Hutterville, the communal corporation, have no individual claims for money damages against the Wipf faction lawyers and court-appointed receiver. Having no individual claims is different from having no standing to bring separate claims for the same damages on behalf of Hutterville. The latter claims get dismissed for lack of standing. The former individual claims get dismissed for lack of any property right to make these types of property damages claims due to their individual renunciation of individual property.

(See prior related posting.)

Sunday, September 01, 2013

Court Allows Another Plaintiff To Intervene In Schools' Contraceptive Coverage Mandate Challenge

In East Texas Baptist University v. Sebelius, (SD TX, Aug. 30, 2013), a Texas federal district court permitted the Pennsylvania-based Westminster Theological Seminary to intervene as a plaintiff in a challenge to the Affordable Care Act contraceptive coverage mandate that was brought by East Texas Baptist University and Houston Baptist University. The court held that venue was not an obstacle to otherwise permissive intervention.

Recent Prisoner Free Exercise Cases

In Green v. Beck, (4th Cir., Aug. 27, 2013), the 4th Circuit reversed a trial court's dismissal of an inmate's claim that his free exercise rights were violated when prison officials failed to recognize and issue him an ID card with his legal name which had been changed for religious reasons.

In Jehovah v. Clarke, 2013 U.S. Dist. LEXIS 119627 (ED VA, Aug. 20, 2013), a Virginia federal district court dismissed the RLUIPA and free exercise claims by an inmate challenging rules that bar him from taking communion using wine, and instead only allow juice. Plaintiff alleged that he is "Jewish, Israeli, Italian, Latino, Greek, and other things" and that his religion requires that he take communion with unleavened kosher bread, pure red grape wine and pure honey, olive oil, powdered sugar, white sugar, cinnamon, and water.

In Kramer v. Conway, 2013 U.S. Dist. LEXIS 119914 (ND GA, Aug. 23, 2013), a Georgia federal district court held that a Gwinnett County jail ban on hardback books in cells, limit on number of soft-cover books in cells and on the weight of packages received do not violate an Orthodox Jewish inmate's 1st Amendment free exercise rights. A number of accommodations had already been granted to plaintiff. The court dismissed plaintiff's RUIPA challenge because he failed to provide evidence that the jail received federal funds.

In Hunter v. Zodwin, 2013 U.S. Dist. LEXIS 120361 (CD CA, Aug 22, 2013), a California federal district court dismissed as frivolous an inmate's habeas corpus petition claiming that he had received a pardon from the Supreme pardoning authority of the Moorish Science Temple of America.

In Barton v. Snaza, 2013 U.S. Dist. LEXIS 120422 (WD WA, Aug. 19, 2013), a Washington federal magistrate judge dismissed, with leave to amend, an inmate's complaint that two of his "personal religious (Asatru/Odinist) books" were confiscated by an unidentified person.

In Grigsby v. Gaetz, 2013 U.S. Dist. LEXIS 120529 (SD IL, Aug. 26, 2013), an Illinois federal district court permitted a Muslim inmate to proceed against two defendants on his complaint that his Ramadan tray was cancelled after 22 days of Ramadan in violation of his free exercise rights. Other claims were dismissed.

In Neri v. New Jersey State Parole Board, 2013 U.S. Dist. LEXIS 121444 (D NJ, Aug. 27, 2013), a New Jersey federal district court dismissed, with leave to amend, an inmate's complaint that he had no way to practice his religion or attend church services while at the Central Reception and Assignment Facility.

In Avery v. Virga, 2013 U.S. Dist. LEXIS 122121 (ED CA, Aug. 27, 2013), a California federal magistrate judge permitted a pagan inmate to proceed on various of his claims against prison authorities for failing to respond to his complaints that fellow inmates were repeatedly entering the secured designated-pagan area to destroy cultivated herbs and steal religious artifacts.

In Amaker v. Goord, 2013 U.S. Dist. LEXIS 122354 (WD NY, Aug. 27, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 122797, Aug. 8, 2013) and ordered expungement from a Nation of Islam inmate's record any of the disciplinary charges obtained in violation of his rights under RLUIPA and the First Amendment.

In White v. Smyers, 2013 U.S. Dist. LEXIS 122937 (ED CA, Aug. 27, 2013), a California federal magistrate judge held an inmate's complaint that authorities did not provide him a follow-up consultation with a second orthopedic surgeon who might perform surgery with a blood transfusion alternative (because of the inmate's religious beliefs) is a claim that should be pursued under the 8th Amendment and not as a free exercise claim.

In Antonetti v. Vegas, 2013 U.S. Dist. LEXIS 124601 (D NV, Aug. 30, 2013), a Nevada federal district court permitted an inmate to proceed with his complaint that he was denied kosher meals. Various other claims were dismissed.

Ginsburg Becomes First SCOTUS Justice To Officiate At Same-Sex Wedding

Justice Ruth Bader Ginsburg yesterday became the first U.S. Supreme Court Justice to officiate at a same-sex wedding ceremony. NBC reports that Ginsburg officiated at the marriage of John F. Kennedy Center for the Performing Arts President Michael M. Kaiser, to economist John Roberts. Kaiser is a long-time friend of Ginsburg. The wedding took place in the atrium of the Kennedy Center.

Texas Supreme Court Says Only "Neutral Principles" Approach Should Be Used In Church Property Cases

Last week, the Texas Supreme Court decided two cases involving a property ownership disputes between The Episcopal Church and break-away congregations. In Masterson v. Diocese of Northwest Texas, (TX Sup. Ct. Aug. 30, 2013) (opinion of court; concurrence; dissent), the Texas Supreme Court held that Texas courts should use only the "neutral principles of law" approach in deciding church property cases. Since the lower court had used the deference to hierarchical authority approach, its decision was reversed. The justices then split on how the neutral principles doctrine applied in the case, involving a parish's amendment of its articles of incorporation and bylaws to withdraw from TEC and the Diocese and revoke trusts in their favor on the corporation’s property. Two justices dissented from the majority's guidance on the application of the corporation law, while two concurring justices thought that it was premature for the court to decide those fact-intensive issue.

In The Episcopal Diocese of Fort Worth v. The Episcopal Church, (TX Sup. Ct., Aug. 30, 2013), (opinion of the court; dissent), the court similarly decided that the neutral principles approach must be used in deciding ownership of property of the break-away Fort Worth diocese. However only 4 justices agreed with the guidance in the court's opinion on application of neutral principles in the case. Four other justices dissenting argued that the court lacked jurisdiction to hear the case on direct appeal from the trial court.

Saturday, August 31, 2013

Detroit Man Pleads Guilty To Stealing Father's Body In Hopes of His Resurrection

Last Monday in Detroit (MI), 48-year old Vincent Bright plead guilty to stealing the body of his 93-year old father from a Detroit cemetery. According to AP, Bright, who is religious, stored the body in his home freezer in hopes that his father would be resurrected. Under the plea agreement, Bright, who could have been sentenced to 10 years in prison, will instead get probation, with credit for time served.

11th Circuit: Synagogue's Challenge To Historic Landmark Designation Is Ripe For Adjudication

In Temple B'nai Zion, Inc. v. City of Sunny Isles Beach, Florida, (11th Cir., Aug. 29, 2013), the U.S. 11th Circuit court of Appeals held that a suit by a synagogue challenging its designation as a historic landmark is ripe for adjudication. The court held that the synagogue's challenge of the designation as a violation of the state and federal constitutions, RLUIPA and the Florida Religious Freedom Restoration Act is sufficiently developed to obtain judicial resolution, even though the city has not yet applied any land use restrictions to the synagogue. The opinion describes at length the antagonism of the city's mayor, a former member of the synagogue, to the synagogue when it moved from embracing Conservative Judaism to becoming an Orthodox synagogue. The Miami Herald reports on the decision.

Friday, August 30, 2013

Non-Profits Continue To Refile Challenges To Contraceptive Coverage Mandate

Religious non-profits whose challenges to the Affordable Care Act contraceptive coverage mandate were dismissed on ripeness grounds before the final rules were promulgated continue to refile challenges attacking the final version of the rules on religious liberty grounds. Yesterday, Ave Maria University filed a new lawsuit. The 16-count complaint (full text) in Ave Maria University v. Sebelius, (MD FL, filed 8/29/2013) challenges the mandate as violating the 1st and 14th Amendments, RFRA and the Administrative Procedure Act. The Ft. Myers, Florida News-Press reports on the filing.

Meanwhile, earlier this month several Washington, DC Catholic schools and charities, along with the Washington Archdiocese filed a motion asking the D.C. Circuit Court of Appeals-- in the pending appeal of their earlier challenge-- to issue a preliminary injunction and remand the case to the district court for further proceedings on the merits. The motion and supporting memorandum (full text) in Roman Catholic Archbishop of Washington v. Sebelius, DC Cir., filed 8/12/2013) is available online via Becket Fund' comprehensive HHS Information Central webpage.

Appeals Court Says Guardian For Medical Decisions of Amish Child Can Be Appointed Even If Parents Are Not Unfit

In In re Guardianship of S.H., (OH App., Aug. 27. 2013), an Ohio appellate court ruled that a probate court should have considered whether a guardian for the purposes of making medical decisions should have been appointed for a 10-year old Amish girl, even though the girl's parents have not been found to be unsuitable. An AP report summarizes the background:

An appeals court has sided with a hospital that wants to force a 10-year-old Amish girl to resume chemotherapy after her parents decided to stop the treatments.... The hospital believes Sarah's leukemia is very treatable but says she will die without chemotherapy.....

Andy Hershberger, the girl's father, said the family agreed to begin two years of treatments for Sarah last spring but stopped a second round of chemotherapy in June because it was making her extremely sick.... Sarah begged her parents to stop the chemotherapy and they agreed after a great deal of prayer.... The family, members of an insular Amish community, shuns many facets of modern life and is deeply religious.... They opted to consult with a wellness center and treat Sarah with natural medicines, such as herbs and vitamins, and see another doctor who is monitoring their daughter.... Hershberger said they have not ruled out returning to Akron Children's Hospital if Sarah's health worsens.

Seventh Day Adventist Required To Work On Saturdays May Proceed On Breach of Contract Claim

In Webster v. Dolgencorp, LLC, (D NJ, Aug. 22, 2013), a New Jersey federal district court permitted a Seventh Day Adventist who sued complaining that his Dollar General Store employer refused to accommodate his refusal to work on Saturdays to proceed on his claims for breach of contract and breach of implied covenant of good faith and fair dealing. However it held that plaintiff had not so far plead adequate facts to support a Title VII hostile work environment claim. Several other claims were dismissed on statute of limitations grounds. Courthouse News Service reports on the decision.

9th Circuit Rejects Challenges To California Ban On Reparative Therapy For Minors

In Pickup v. Brown, (9th Cir., Aug. 29, 2013), the U.S. 9th Circuit Court of Appeals upheld the constitutionality of California Senate Bill 1172 that bans state-licensed mental health providers from engaging in sexual orientation change efforts with patients under 18. The court rejected claims that the law violates free speech rights of practitioners and minor patients, claims that it violates fundamental parental rights, and assertions that the law is overbroad and vague. The court said in part:

Senate Bill 1172 regulates conduct. It bans a form of medical treatment for minors; it does nothing to prevent licensed therapists from discussing the pros and cons of SOCE with their patients. Senate Bill 1172 merely prohibits licensed mental health providers from engaging in SOCE with minors.... Under its police power, California has authority to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful and ... the fact that speech may be used to carry out those therapies does not turn the prohibitions of conduct into prohibitions of speech.

AP reports on the decision. (See prior related posting.)

Woman Sues Jehovah's Witness Church Alleging Inaction In Sexual Abuse By Elder 25+ Years Ago

The Albuquerque Journal reported yesterday on a lawsuit by a 35-year old woman against the Los Lunas (NM) Congregation of Jehovah’s Witnesses. The suit, filed in New Mexico state court, alleges that plaintiff was sexually abused in 1987 (when she was 8 years old) by an elder of the congregation. It alleges that plaintiff's mother had been raped by the elder. When she told other church elders, they not only failed to remove the accused elder, but insisted that the mother demonstrate her forgiveness by hosting the accused elder and his family in their home, and by permitting her children to spend time, including nights, at the elder's home under his supervision. The suit claims that the mother complied under duress, and this gave the elder access to abuse plaintiff. The lawsuit also names the Watchtower Bible and Tract Society of New York, which oversees the church, and a former elder.

IRS Rules That Legal Same-Sex Marriages Will Be Recognized For Tax Purposes, Regardless Of Couple's Current Domicile

The Internal Revenue Service announced yesterday that legally-married same-sex couples will be treated as married for federal tax purposes, even if they live in a state that refuses to recognize their legal marriage that was performed elsewhere. The new policy is formally reflected in Revenue Ruling 2013-17 which defends the gender-neutral reading of gender-specific terms in the Internal Revenue Code that the new policy requires. However, the ruling does not extend to domestic partnerships, civil unions, or other similar formal relationships recognized, but not called marriage, under state law. The IRS also issued updated Frequently Asked Questions for same-sex couples and updated FAQs for registered domestic partners and individuals in civil unions.

Kerry Calls On Iranians To Release Christian Pastor

U.S. Secretary of State John Kerry issued a statement on Wednesday calling for Iran to help in the return of three U.S. citizens. One of those is Iranian-American Christian pastor Saeed Abedini who was sentenced in January to 8 years in prison by an Iranian court on charges of threatening Iran's national security through his leadership in Christian house churches. (See prior posting.) Kerry's statement comes only days after the Aug. 25 rejection by the Tehran Court of Appeals of Abedini's appeal of his sentence. The American Center for Law and Justice issued a statement yesterday welcoming the State Department's re-engagement on Abedini's case.

Thursday, August 29, 2013

New Survey On State of the Bible Released

The American Bible Society this week released a survey titled State of the Bible in 2013. (Full text.) (Summary of findings.) Among its findings: 66% of adults see it as important to teach the values found in the Bible in public schools. 31% of adults say that their political views are greatly influenced by their faith, while 69% say their faith has at least a little influence on their political views. 54% of adults agreed with the statement, "the Bible and politics do not mix." 22% of adults believe the Bible should be taken literally, word for word. [Thanks to Blog From the Capital for the lead.]

Canadian Tax Court Rules FLDS Community Does Not Come Under Provision For Sharing of Tax Liability

In a 92-page opinion in Blackmore v. The Queen, (Tax Ct. Canada, Aug. 21, 2013), the Tax Court of Canada ruled that the polygamous FLDS community of Bountiful, British Columbia does not fall under Sec. 143 of Canada's Income Tax Act which allows communal religious organizations such as the Hutterites to elect to have community income taxed to individual members of the community. The ruling means that other Bountiful residents will not be liable for the taxes and penalties flowing from the $1.8 million understatement of income by FLDS leader Winston Blackmore. (In a related ruling, the court detailed reasons for allowing Dr. John Walsh to testify as an expert witness.) The Vancouver Sun reported yesterday, however, that testimony at the trial suggests Blackmore may still pass on the tax liability to his followers through requiring additional tithing or making a "famine call" on them to live for three months on their stored food so they can hand over their grocery money to him.

Another Preliminary Injunction To Allow Gilardi As Contraceptive Coverage Test Case In D.C. Circuit

The federal government is continuing to agree to preliminary injunctions in small business challenges to the Affordable Care Act contraceptive coverage mandate filed in federal district court in the District of Columbia in order to allow the Gilardi case to be the test case for the D.C. Circuit. (See prior posting.) In the latest example, the D.C. federal district court granted an unopposed motion for a preliminary injunction on that basis in Willis Law v. Sebelius, (D DC, Aug. 23, 2013). (See prior related posting.) Thomas More Law Center announced the grant of the preliminary injunction.

AP Reveals NYPD Investigative Techniques Aimed At Mosques

AP reported yesterday that the New York Police Department has since 9/11 subjected at least a dozen mosques to "Terrorism Enterprise Investigations." By declaring an entire mosque a terrorism enterprise, police under their so-called Handschu Guidelines, can use informants to record sermons, spy on imams and treat anyone who attends mosque services as a suspect. Police have also attempted to infiltrate the boards of Islamic organizations to obtain intelligence.

Wednesday, August 28, 2013

Education Department Dismisses Complaint That Anti-Israel Incidents Subjected Jewish Students To Hostile Environment

The University of California Berkeley announced yesterday that the U.S. Department of Education’s Office for Civil Rights has dismissed a complaint contending that three incidents involving criticism of Israel created a hostile environment for Jewish students that the University had an obligation to curtail. In its Aug. 19 letter (full text) informing the University that its investigation of the complaint is being closed, the DOE said in part that the events:

constituted expression on matters of public concern directed to the University community. In the university environment, exposure to such robust and discordant expressions, even when personally offensive and hurtful, is a circumstance that a reasonable student in higher education may experience. In this context, the events ... do not constitute actionable harassment.

In 2011, a federal district court had reached a similar conclusion. (See prior posting.)

Controversial Anti-Muslim Pastor Is Flooded Out Of Planned Qur'an Burning Site

The Lakeland, Florida Ledger reported yesterday that controversial anti-Muslim pastor Terry Jones is looking for an alternative site for his planned provocative commemoration of this year's anniversary of the 9-11 attacks. Jones had planned to burn 2,998 Qur'ans-- one for each American lost in the attacks. However, the yard of Mulberry, Florida resident Bill McKinney where the burning was to take place is flooded. The site of an old cow pasture, it has been under water for a month. So Jones is now looking for a new venue somewhere near Mulberry. Jones has sold his old church, Dove World Outreach Center in Gainesville. (See prior related posting.)

Al Jazeera Profiles Federal and State Legislative Prayer Caucuses

Al Jazeera yesterday carried a lengthy feature article on the U.S. Congressional Prayer Caucus, and efforts to create prayer caucuses in state legislatures as well. Here is an excerpt:

When Congress is in session, the members meet weekly in Room 219 of the U.S. Capitol to pray and "seek God’s wisdom and guidance in leading our great nation," according to a caucus promotional video. The caucus now boasts 97 members, mostly Republicans.

But critics charge that the group ... distorts the meaning of religious freedom. Secular advocates and religious leaders say the CPC's claims that the United States was founded as a Christian nation and that Christians' religious liberties are now under threat are false. Rather, critics say, the caucus' efforts to place a government imprimatur on Christian prayer and inject a particular religious view into policy and legislation violate the separation of church and state.

Queensland Will Move Ahead With Religious Exemption To Bicycle Helmet Rule

Today's Brisbane Courier Mail reports that Campbell Newman, premier of the Australian state of Queensland, has decided to introduce legislation to amend the Queensland Road Rules to provide a religious exemption to the state's bicycle helmet requirement. The exemption, urged by Sikhs in Australia, will cover those who practice a religion that requires a head covering be worn that prevents use of a helmet. The government is moving ahead with the proposal despite studies that show serious head injury is 5 times more likely for those wearing a turban than a helmet. The states of Victoria, South Australia and Western Australia already have similar exemptions.

Tuesday, August 27, 2013

Moorish Science Defenses To Neglect Charges Rejected

In In re A.E. & D., 2013 Ill. App. Unpub. LEXIS 1873 (IL App., Aug. 26, 2013), an Illinois appeals court rejected several religion-based defenses raised by the mother of two children who was found unfit because of medical neglect and creating an environment injurious to her children's welfare. The court rejected respondent's claim that it lacked jurisdiction. Respondent argued that her children are part of the trust corpus of the Moorish Science Temple of America and that MSTA should have been made a party to the case. The court also held that respondent's free exercise rights do not permit her to avoid seeking proper medical care for her children.

City Was Premature In Acting Against Church's Feared Homeless Encampment

In New Life Evangelistic Center v. City of St. Louis, 2013 U.S. Dist. LEXIS 120783 (ED MO, Aug. 26, 2013), a Missouri federal district court refused to dismiss a lawsuit by a church that claimed its due process and free exercise rights were infringed when the city issued an emergency condemnation order against its property on which it had erected a large tent and eight smaller tents. The city feared that the church intended to created a sleeping encampment for the homeless on the property. The church claimed, however, that it intended to use the property for worship and outreach to the homeless. Dismissing the city's counterclaim for injunctive and declaratory relief, the court concluded that no permits were required for the present uses of the property, and that the city was premature in acting merely on speculation that a tent city in violation of the building code would be set up.

Pastafarian Wears "Religious" Headgear In Texas Driver's License Photo

Apparently the state of Texas has no problem with individuals wearing religious headgear in their driver's license photos. Daily Caller reported yesterday that Texas Tech University student Eddie Castillo, claiming to be a Pastafarian, has become the first person to wear a pasta strainer on his head in his ID photo. Castillo told Department of Motor Vehicle officials in the Lubbock office that the silver metal pasta strainer is a religious symbol to him. DMV officials are apparently still considering whether his license is valid. Pastafarianism, also known as the Church of the Flying Spaghetti Monster, is generally seen as a parody on religion, even though its website says it is a real religion.

Federal Court Says S.C. Episcopal Diocese Controversy Should Be Resolved In State Court

In vonRosenberg v. Lawrence, (D SC, Aug. 23, 2013), a South Carolina federal district court declined to exercise jurisdiction over a trademark infringement case growing out of the ongoing controversy between a large break-away portion of the Episcopal Diocese of South Carolina and the smaller number of parishes that remain loyal to The Episcopal Church. The court held that the trademark dispute is part of a larger dispute over ownership of the Diocese's property which is being litigated in state court (see prior posting), and concluded that it is "judicially impractical to retain jurisdiction over a fragmented claim that has been separated from the larger controversy." The State reports on the decision, and Anglican Curmudgeon blog comments at length on the decision from the perspective of the break-away congregations.

Monday, August 26, 2013

Egyptian Military Enlists Clerics To Justify Violence Against Morsi Supporters

The New York Times reports in a front-page article today that the Egyptian military has begun a propaganda campaign using Muslim scholars to prevent insubordination among soldiers and police. Sometimes using clerics appointed by former president Hosni Mubarak, the military has produced videos that tell soldiers they have a religious duty to use deadly force against Muslim Brotherhood supporters of ousted president Mohamed Morsi.

Quebec Values Charter Proposal Will Ban Sikh, Muslim and Jewish Religious Head Coverings For Public Employees

In the Canadian province of Quebec, the ruling Party Quebecois plans to introduce a Charter of Quebec Values which, among other things, will ban public employees from wearing religious head coverings or visible crucifixes in the workplace. The ban will cover Sikh turbans, Muslim niqabs and hijabs, and Jewish kippahs. According to a Canadian Press report yesterday, Quebec Premier Pauline Marois says the Charter will be a unifying force for the province. According to a Canadian Press article last week, there is particular concern that a ban would drive out Middle Eastern health care professionals who now work at Montreal hospitals, leading to longer hospital wait times. The proposed Charter would allow culturally specific hospitals — such as Montreal’s Jewish General — to seek an exemption.

Journal of Law and Religion Moves To New Editorial Home At Emory

National Jurist reports this month that the Journal of Law and Religion, previously published at Hamline University School of Law, has moved to a new editorial home at Emory University. In a "refreshed editorial direction," the Journal plans to expand its coverage to include the place of law in religious canons, sacred texts and religious traditions; and the place of ritual and liturgy in the operation of state legal and political systems. The well-respected Journal has been housed at Hamline since its founding in 1982. According to the Journal's website, Emory's Center for the Study of Law and Religion will publish the Journal through Cambridge University Press. Apparently the effective date of the move was Aug. 15.

Sunday, August 25, 2013

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.

Saturday, August 24, 2013

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.

Friday, August 23, 2013

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.

Thursday, August 22, 2013

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.]

Wednesday, August 21, 2013

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.

Tuesday, August 20, 2013

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.

Monday, August 19, 2013

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.

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.

Sunday, August 18, 2013

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.]

Saturday, August 17, 2013

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.

Friday, August 16, 2013

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."

Thursday, August 15, 2013

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.