Religion Clause

Tuesday, September 10, 2013

Muslim Woman Wins Title VII Challenge To Abercrombie's "Look Policy"

In EEOC v. Abercrombie & Fitch Stores, Inc, (ND CA, Sept. 3, 2013), a California federal district court granted partial summary judgment in a Title VII case to a Muslim woman, Umme-Hani Khan, who was terminated from her employment with Abercrombie & Fitch when she insisted on wearing her headscarf (hijab) for religious reasons. The company insisted that Khan comply with its "Look Policy." The court rejected Abercrombie's claim that accommodation of Khan's religious beliefs would impose an undue hardship. It also rejected Abercrombie's argument that its Look Policy was protected by the 1st Amendment's commercial speech doctrine because store associates were in effect living advertisements. CAIR issued a press release announcing the decision.

Monday, September 09, 2013

Group Urges SEC To Expand Accredited Investor Rule To Cover Same-Sex Couples

The U.S. Supreme Court's Windsor decision striking down Section 3 of the Defense of Marriage Act is rippling through unexpected corners of federal regulation. A group of investors and entrepreneurs calling themselves StartupEquality.org last week sent a letter (full text) to the Securities and Exchange Commission urging the expansion of SEC's Regulation D that allows businesses to raise capital from wealthy investors in private placements without filing a full registration statement. SEC Rule 501 defines "accredited investors"-- those who may purchase in private placements-- as including spouses who jointly meet certain income or net worth levels. The group's letter says that the Windsor decision should be read to automatically extend Rule 501 to same-sex married couples, and urges the SEC to expand the rule so that same-sex couples in civil unions, domestic partnership arrangements and the like who are unable to marry may also aggregate their income and assets to determine accredited investor status.

Presidential Proclamation Declared Last Weekend Days of Prayer and Remembrance For 9-11 Victims

Last Friday President Obama issued a Presidential Proclamation (full text) declaring Friday, September 6 through Sunday, September 8, 2013, as National Days of Prayer and Remembrance to remember the victims of 9-11. The Proclamation calls on the people of the United States, and others around the world, to honor and remember the victims and their families through prayer, contemplation, memorial services, the visiting of memorials, the ringing of bells, evening candlelight remembrance vigils, and other appropriate ceremonies and activities.

Federal Lawsuit Challenges Noise From Church Bells

The Providence Journal reported last week on a pro se federal lawsuit filed by a Narragansett, Rhode Island man, John Devaney, who objects to the noise from the bells of St. Thomas More Catholic Parish directly across from his home, as well as those of an Episcopal Church nearby. Naming Attorney General Peter F. Kilmartin, Diocese of Providence Bishop Thomas J. Tobin, Archbishop Carlo Maria Vigano, apostolic nuncio to the United States, and Pope Francis as defendants, as well as the administrator of the Epsicopal church, the suit claims that the bells deny Devaney his constitutional rights and the peaceful enjoyment of his property. Claiming that there are 700 amplified claps and gongs each week, the suit seeks to require the town to apply its noise ordinances to churches and to require the St. Thomas More to reduce the number and volume of its chimes. The Catholic parish's bells ring for one minute 3 times a day on weekdays, twice on Saturdays and once on Sundays. The diocese claims that Devaney is harassing visitors, worshipers and staff of the parish.

Southern Baptist Convention Bars Its Military Chaplains From Participating In Same-Sex Weddings

The North American Mission Board on Aug. 29 released new Guidelines (full text) clarifying the expectations for all military and VA chaplains endorsed by the Southern Baptist Convention in light of the Supreme Court's invalidation of the Defense of Marriage Act. The new Guidelines provide in part:

All ministries regarding human sexuality will reflect the historic, natural and biblical view of marriage as God's lifelong gift of "the uniting of one man and one woman in covenant commitment for a lifetime."...

Southern Baptists believe that "all forms of sexual immorality, including adultery, homosexuality and pornography" ... are condemned by Holy Scripture as sin.... Responsible pastoral care will seek to offer repentance and forgiveness, help and healing, and restoration through the mercy and grace of Jesus Christ;s sacrificial gift of love on the cross.

NAMB-endorsed chaplains will not conduct or attend a wedding ceremony for any same-sex couple, bless such a union or perform counseling in support of such a union, assist or support paid contractors or volunteers leading same-sex relational events, nor offer any kind of relationship training or retreat, on or off of a military installation, that would give the appearance of accepting the homosexual lifestyle or sexual wrongdoing. This biblical prohibition remains in effect irrespective of any civil law authorizing same-sex marriage or benefits to the contrary....

[NAMB-endorsed chaplains may not conduct] a service jointly with a chaplain, contractor or volunteer who personally practices a homosexual lifestyle or affirms a homosexual lifestyle or such conduct.

AP reports on the new Guidelines.

Cert. Petition Filed In Obamacare Case

Last Thursday, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Liberty University v. Lew. In the case, the 4th Circuit, upheld the constitutionality of the Affordable Care Act's employer mandate and rejected free exercise, RFRA, Establishment Clause and equal protection challenges to other provisions of the Act. Liberty Counsel issued a press release announcing the filing of the petition.

Sunday, September 08, 2013

German Police Raid Christian Sect; Take Children Into Foster Care

AP reports that police in southern Germany on Friday raided two locations of the so-called "Twelve Tribes", a Christian religious sect, and took 40 children for placement into foster care for fear that they are being abused. The children ranged in age from 1 to 17. Police seized sticks allegedly used to hit the children. Sect members acknowledge that they believe in spanking children, but denied any wrongdoing. An investigation has been opened by police into the sect that was founded by a Tennessee high school teacher in the 1970's, and which has had run-ins with authorities in the United States in the past as well. The group has also had problems with German authorities in the past for violating laws barring homeschooling of their children. The Blaze has a longer report on the raid.

Texas AG Says City's Ban On Officials Demonstrating Bias By Word or Deed is Unconstitutional

On Thursday, the San Antonio, Texas city council adopted, by a vote of 8-3 an ordinance (full text) expanding its non-discrimination bans to include discrimination on the basis of sexual orientation, gender identity and veteran status. It provides, however, that nothing in the ordinance "shall be construed as requiring any person or organization to support or advocate any particular lifestyle or religious view, or advance any particular message or idea." One of the most controversial portions of the new law is the provision that:

No appointed official or member of a board or commission shall engage in discrimination or demonstrate a bias, by word or deed, against any person, group of persons, or organization on the basis of race, color, religion, national origin, sex, sexual orientation, gender identity, veteran status, age or disability, while acting in their official capacity while in such public position.

The Texas Tribune reported Friday that state attorney general Greg Abbott takes the position that this ban violates the free speech and free exercise provisions of the Texas and U.S. constitutions and opens the city to possible lawsuits. He says that the provision could expose officials to removal from office for speaking in favor of Texas' constitutional ban on same-sex marriage.

Recent Prisoner Free Exercise Cases

In Washington v. Afify, 2013 U.S. Dist. LEXIS 125523 (WD NY, Sept. 3, 2013), a New York federal district court dismissed claims by a Muslim inmate that his free exercise rights were infringed by assignment of a cell mate who exposed him to pornographic images and sexually explicit TV and music; that he was denied "religious" meals during Ramadan unless he agreed to work in the mess hall; and that he was not allowed to attend religious services because of misbehavior reports.

In McCallon v. Lasalle Management Co., 2013 U.S. Dist. LEXIS 125768 (WD LA, Sept. 3, 2013), a Louisiana federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 125765, Aug. 5, 2013) and dismissed a Muslim inmate's complaints regarding the method of appointing an imam, limitations on participation in Jum'ah services, an improper Ramadan diet and no Eid feast.

In Price v. White, 2013 U.S. Dist. LEXIS 125946 (WD KY, Sept. 3, 2013), a Kentucky federal district court allowed a Jewish inmate to proceed with his claim that his free exercise and RLUIPA rights were violated when he was forced to shave his head while in segregation, in violation of his religious beliefs.

In Watts v. Byars, 2013 U.S. Dist. LEXIS 126148 (D SC, Sept. 3, 2013), a South Carolina federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 125997, June 10, 2013) and rejected a Muslim inmate's complaint that he was served a vegetarian rather than a Halal menu.

In Martz v. Sci-Coal Township Therapeutic Community, 2013 U.S. Dist. LEXIS 125884 (MD PA, Sept. 4, 2013), a Pennsylvania federal district court allowed an inmate to proceed on his claim that he was denied parole on his earliest release date for failure to attend a drug and alcohol program whose secular option to the religious/spiritual segment existed only on paper and not in reality.

In Patel v. Brewton, 2013 U.S. Dist. LEXIS 126242 (SD GA, Sept. 4, 2013), a Georgia federal magistrate judge recommended that an inmate be permitted to proceed on his complaint that defendant improperly ended his religious meals.

In Taylor v. Hubbard, 2013 U.S. Dist. LEXIS 126311 (ED CA, Sept. 4, 2013), a California federal magistrate judge recommended allowing an inmate who practiced Thelema to proceed with claims that some of his religious items were confiscated. Other claims were dismissed for failure to exhaust administrative remedies.

In Tatum v. Clarke, 2013 U.S. Dist. LEXIS 126821 (ED WI, Sept. 5, 2013), a Wisconsin federal district court rejected an inmate's claim that while in jail he was subjected to a year-long retaliatory conspiracy based on his religion. However he was permitted to proceed with certain other religion claims.

In Allen v. Mikarimi, 2013 U.S. Dist. LEXIS 126996 (ND CA, Sept. 5, 2013), a California federal district court dismissed certain defendants and permitted a Muslim inmate to proceed against others on his complaint that Muslims were denied group worship services, while other religious groups were allowed them.

In Ricks v. Albitre, 2013 U.S. Dist. LEXIS 127662 (ED CA, Sep. 5, 2013), a California federal magistrate judge held that an inmate could proceed against certain of the defendants on the claim that they substantially burdened the practice of his religion by failing to provide Wiccan services and failing to purchase Wiccan materials and artifacts.

Appeals Court Upholds Rejection of Noncomplying Articles of Incorporation For Corporation Sole

In Roman Catholic Bishop of San Jose v. Bowen, (CA App., Sept. 5, 2013), a California state appellate court upheld a decision by the Secretary of State to refuse to file the articles of incorporation for "Pastor of Santee Catholic Mission, a corporation sole," because the dissolution provision in the articles does not comply with the requirement of California law that in case of dissolution any remaining assets be distributed to the religious organization governed by the corporation sole. (Corp. Code Sec. 10015). The articles submitted called for assets on dissolution to go to the Roman Catholic Bishop of San Jose instead of to the Santee Catholic Mission Parish. The Church had argued that the dissolution provisions in the articles were designed to assure that assets remain with the Catholic community if the parish is suppressed.

Westboro Baptist Church Claims Discriminatory Enforcement of Nebraska Funeral Picketing Law

ABP reports that Shirley Phelps-Roper, a member of Westboro Baptist Church, last week filed an amended complaint in her "as applied" challenge to Nebraska's funeral picketing law. The complaint alleges discriminatory enforcement of the law against Westboro, known particularly for its anti-gay picketing of military funerals. It cites at least 16 instances of strict enforcement against Westboro picketers, keeping them blocks away, and says that counter-protesters such as motorcycle riders and other citizens are permitted to gather closer to funeral services. It also claims that local officials have taken legal action against Westboro picketers because of disagreement with their viewpoint. The case was remanded to the district court last April in an 8th Circuit decision in Phelps-Roper v. Troutman, following the 8th Circuit's en banc decision upholding Missouri's funeral picketing law.

Saturday, September 07, 2013

Georgia State AG Says Public Utilities Commission Cannot Direct Fine Money To Care Net Pregnancy Centers

The Atlanta Journal Constitution reported Thursday that the Georgia's Attorney General, Sam Olens, has advised the Georgia Public Utilities Commission that it lacks authority to approve a proposal by two GPUC members that would have diverted a $10,000 fine imposed on a telephone company to Care Net, a religious pregnancy counseling charity with ties to the two commissioners who back the plan. While the Public Utilities Commission can enter settlement with companies under which they agree to alternatives to a fine, it is required that there be a connection between the proposed use of funds and the violation. So customer refunds, or training to prevent natural gas accidents would be permissible. But here the connection is not clear. Commissioner H. Doug Everett who proposed the plan (and whose wife works as an unpaid Care Net volunteer) says there is a connection. One of the violations for which Peerless Network of Georgia was cited was a failure to ensure the confidentiality of family violence shelters. Commissioner Tim Echols, a Care Net advisory board volunteer who received consulting fees from the parent organization in 2006, supports Everett's plan, with the condition that if it does not pass, the settlement would direct the $10,000 to charitable medical clinics for expanded broadband access.

Suit By Jewish Nursing Student Seeking Excused Absences On Holidays Is Settled

On Wednesday, just before that start of the Jewish holiday of Rosh Hashanah, Dallas County (TX) Community College District announced a settlement in a case that had been filed the day before by an Orthodox Jewish student in the school's nursing program who sought accommodation of his religious beliefs. As reported by the Dallas Observer, the school threatened to drop student Hillel Rodin from the program because he would be missing a mandatory orientation on Thursday (Rosh Hashanah) as well as four additional days of clinical observation scheduled for other Jewish holidays. In settling the case, the parties agreed that Rodin would make up his clinical requirements on appropriate dates in January 2014. Originally the school insisted that Rodin seek a dispensation from his rabbi allowing him to attend class on the holidays and make clinical rounds on those days, merely postponing writing his observations and diagnoses until after the holiday ended.

Massachusetts High Court Hears State Constitutional Challenge To Pledge

On Sept. 4, the Massachusetts Supreme Judicial court heard oral arguments (video of full arguments) in Doe v. Acton-Boxborough Regional School District. The suit was brought by an atheist-humanist family challenging the constitutionality of the daily recitation of the Pledge of Allegiance in Massachusetts schools. (No student who objects is required to recite the pledge.) The trial court rejected a challenge under the Massachusetts state constitution to the practice, holding that insertion of the phrase "under God" was merely a reference to historical and religious traditions. (See prior posting.) RNS describes the 35 minute oral argument.

Another Small Business Challenge To Contraceptive Coverage Mandate Filed

This week a suit was filed by another for-profit family-owned business, along with its two controlling officers, challenging the Affordable Care Act contraceptive coverage mandate under the 1st Amendment, the Religious Freedom Restoration Act and the Administrative Procedure Act. The complaint (full text) in Barron Industries, Inc. v. Sebelius, (D DC, filed 9/4/2013) involves a Michigan-based metal products company with 56 full-time employees. The complaint alleges in part:

Plaintiffs operate by their business practices, pursuant to their guiding principle— which is their faith in God—and receive grace and guidance from God in all their business practices, including Plaintiffs’ selection of health insurance....

Based on the teachings of the Catholic Church, and their deeply held religious beliefs, Plaintiffs do not believe that contraception, sterilization, or abortion are properly understood to constitute medicine, health care, or a means of providing for the well being of persons. Indeed, Plaintiffs believe these procedures involve gravely immoral practices, specifically the intentional destruction of innocent human life. Therefore, Plaintiffs seek to exclude this objectionable coverage from their health insurance plan.

The Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Wednesday, September 04, 2013

Nidal Hasan's Beard Finally Shaved Forcibly By Army

AP reports today that Major Nidal Hasan who was convicted and sentenced to death for killing 13 and wounding 30 in a 2009 shooting rampage at Fort Hood has had his beard forcibly shaved in the military detention barracks at Fort Leavenworth where he is on death row. After extensive litigation, Hasan, a Muslim, was allowed to keep the beard he had grown for religious reasons during his trial. (See prior posting.) Fort Leavenworth officials previously said that Hasan would be subject to military grooming regulations there. [Thanks to Scott Mange for the lead.]

Obama In Stockholm Honors Raoul Wallenberg; Sends Rosh Hashanah Greetings

President Obama, who is in Sweden today, visited the Great Synagogue in Stockholm to honor Swedish diplomat Raoul Wallenberg who shielded thousands of Jews from the death camps in World War II. In his remarks (full text), Obama said in part:

This evening is the first night of the Jewish High Holidays -- Rosh Hashanah. For our Jewish friends, it’s a time of joy and celebration, to give thanks for our blessings, and to look ahead to the coming year. So to all our Jewish friends here in Sweden, in the United States, and around the world, especially in Israel -- I want to wish you and your families a sweet and happy new year. Shanah Tova.

Vermont Federal Court Has General Jurisdiction Over New York Diocese In Abuse Case

In Shovah v. Mercure, (D VT, Sept. 3, 2013), a Vermont federal district court held that the Diocese of Albany, New York has sufficient contacts with Vermont, primarily through priests who have conducted worship services there, to create general jurisdiction over the diocese in Vermont. The holding comes in a suit in which plaintiff, a victim of priest sexual abuse, alleges that the Diocese breached its fiduciary duty to by permitting the alleged abuser, former priest Gary Mercure, to hold himself out as a Catholic Priest and that it negligently supervised Mercure.

PETA Becomes Advocate For Buddhist Prisoner Seeing Vegetarian Diet

As those who follow Religion Clause's weekly summary of prisoner free exercise cases know, law suits over religious dietary accommodation arise in federal courts virtually every week. AP reported yesterday on a new organizational advocate that has dipped its toe into the fray. Buddhist inmate Howard Cosby has been attempting to get a vegetarian diet for religious reasons at his Connecticut prison. Prison officials insist on including fish three times per week in his meals. So Cosby has enlisted the held of the animal rights group, People for the Ethical Treatment of Animals (PETA). As PETA explains in its release on the situation:

This week, PETA wrote to the prison in Cosby's behalf, pointing out that a) fish are not vegetables, as most of us learned in high school biology class, and that b) there is ample legal precedent for granting prisoners the right to vegan and vegetarian meals under the Religious Land Use and Institutionalized Persons Act....

Gallup, NM Catholic Diocese To File Chapter 11 Bankruptcy

The St. Louis Post-Dispatch reports that the Catholic Diocese of Gallup, New Mexico plans to file in federal bankruptcy court for Chapter 11 reorganization. In an August 29 announcement, the Diocese said that the decision was impelled by the increasing number of claims by clergy sex-abuse victims. Bishop James S. Wall explained:

It is very important to me that everyone understands that I have not taken this step to avoid responsibility for what happened or to hide anything. On the contrary, I firmly believe that Chapter 11 is the most merciful and equitable way for the Diocese to address its responsibility, to continue to meet its commitment to institute programs and prevent abuse, and to continue its mission to all those who depend on the outreach of the Church....

The Gallup diocese will be the ninth U.S. Catholic diocese or archdiocese to seek Chapter 11 protection.

President Will Appoint James Zogby To USCIRF

Last week, President Obama announced his intent to appoint Dr. James J. Zogby, President of the Arab American Institute, as a member of the U.S. Commission on International Religious Freedom. Yesterday USCIRF issued a press release welcoming Zogby to the Commission.

Tuesday, September 03, 2013

Christian Group Wins Challenge To Dearborn's Special Event Permit Ordinance

In Stand Up America Now v. City of Dearborn, (ED MI, Aug. 30, 2013), a Michigan federal district court held unconstitutional Dearborn ordinances requiring applicants for a special event permit to sign an indemnification agreement, with terms established in the unfettered discretion of the the city's legal department. The case was brought by Stand Up America Now, an organization founded by Florida pastors Terry Jones and Wayne Sapp. The organization's purpose is "to proclaim the Holy Bible to Muslims and to educate people about the threat of Sharia law to our Nation’s fundamental principles of freedom by traveling around the country speaking about Christianity at Muslim events and mosques." The Thomas More Law Center issued a press release announcing the decision. (See prior related posting.)

Canadian Court Dismisses Religious Discrimination Challenge To Royal Succession Rules

Earlier this year, Canada's Parliament passed the Succession to the Throne Act, 2013, which gives assent to the amendments now passed by the British Parliament that eliminate preferences for male heirs in succession to the throne, and eliminates the ban on a monarch being married to a Catholic. However the British initiative retains the ban on a Catholic actually becoming king or queen of England. In Tesky v. Canada (Attorney General), (Ont. Super. Ct., Aug. 9, 2013), an Ontario trial court dismissed a suit brought by a Catholic recent law graduate contending that Canada's Charter of Rights and Freedoms precludes Canada from consenting to legislation that discriminates on the basis of religion. The court held that the rules of succession cannot be challenged under the Charter of Rights and Freedoms because the succession rules themselves are in effect part of the Constitution. It also concluded that plaintiff lacks standing to challenge the rules:

[Plaintiff] ... is a member of the Catholic faith but that appears to be his only interest in the issues raised in this application. He has no connection to the Royal Family. He raises a purely hypothetical issue which may never occur, namely a Roman Catholic Canadian in line for succession to the throne being passed over because of his or her religion. Should this ever occur a proper factual matrix would be available to the court to deal with a matter of this importance.

Yesterday's Law Times reported on the decision.

Suit Challenges South Carolina's Refusal To Recognize Same-Sex Marriages

Last week, a suit was filed in a South Carolina federal district court challenging the state's refusal to allow same-sex marriages and its refusal to recognize same-sex marriages legally performed in other states. The complaint (full text) in Bradacs v. Haley, (D SC, filed 8/28/2013), contends that South Carolina's statutory law (SC Code 20-1-15) and its constitutional provision barring recognition of plaintiffs' marriage (Art. XVII, Sec. 15) violate the due process, equal protection and full faith and credit clauses of the Constitution. The State reports on the lawsuit that was filed by Highway Patrol Trooper Katherine Bradacs and her spouse, Tracie Goodwin, who were married in the District of Columbia last year.

Monday, September 02, 2013

Times Focuses On Justice Kennedy's Role In Gay Rights Legal Victories

Today's New York Times carries a front-page story titled Surprising Friend of Gay Rights in a High Place, tracing Justice Anthony Kennedy's important role in legal victories for the gay rights movement. It says in part:

Justice Kennedy has emerged as the most important judicial champion of gay rights in the nation’s history, having written three landmark opinions on the subject, including this summer’s Windsor decision, which overturned a ban on federal benefits for married same-sex couples. Those rulings collectively represent a new chapter in the nation’s civil rights law, and they have cemented his legacy as a hero to the gay rights movement.

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.