Recent Prisoner Free Exercise Cases

In Goode v. Bruno, 2013 U.S. Dist. LEXIS 140404 (D CT, Set. 30, 2013), a Connecticut federal district court allowed a Wiccan prisoner to proceed with most of his claims against the Department of Corrections Religious Services Director for failing to allow him to observe 8 seasonal holidays, participate in various rituals and purchase various religious items.

In Banks v. Beard, 2013 U.S. Dist. LEXIS 140629 (MD PA, Sept. 30, 2013), a Pennsylvania federal district court dismissed a complaint that indigent Muslim inmates were unable to participate in the purchase of optional menu items for the feasts of Eid al-Fitr and Eid al-Adhah, and that Muslim inmates lack access to prayer oils.

In Blue v. Skolnik, 2013 U.S. Dist. LEXIS 140901 (D NV, Sept 30, 2013), a Nevada federal district court adopted a magistrate's recommendations (2013 U.S. Dist LEXIS 140920, Aug. 21, 2013) and permitted a Jewish inmate to move ahead with his complaint alleging extensive delays in furnishing him a kosher diet.

In Uduko v. Cozzens, 2013 U.S. Dist. LEXIS 141178 (ED MI, Oct. 1, 2013), a Michigan federal district court adopted a magistrate's findings (2013 U.S. Dist. LEXIS 140802, July 26, 2013) and permitted an inmate to proceed with his claim that his removal as leader of the prison Protestant faith group was in retaliation for protesting the cancellation of a planned religious retreat and for lodging a complaint against two officers.

In Walker v. Artus, 2013 U.S. Dist. LEXIS 141574 (ND NY,Set. 27, 2013), a federal magistrate judge recommended dismissing a Muslim inmate's suit seeking to require prison authorities to provide a closed circuit TV or audio feed of Jumu'ah services to inmates in Special Housing Unit who are not permitted to attend congregate religious services.

In Kadamovas v. Lockett, 2013 U.S. Dist. LEXIS 141795 (SD IN, Sept. 30, 2013), an Indiana federal district court dismissed a complaint by an Orthodox Christian inmate that his religious common fare diet was nutritionally inadequate, spoiled, or insufficient. The court held plaintiff had failed to show that named defendants were directly involved in any free exercise or RFRA violation.

In LaRock v. Amato, 2013 U.S. Dist. LEXIS 142002 (ND NY, Sept. 30, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 142029, June 4, 2013) and dismissed an inmate's general claim that all involuntary protective custody inmates are precluded from practicing religion.

In Gambino v. Pugh, 2013 U.S. Dist. LEXIS 142138 (ND OH, Oct. 1, 2013), an Ohio federal district court dismissed an inmate's complaint that he was denied kosher meals and Jewish literature. Plaintiff failed a written test as to his sincere belief in the Jewish faith and refused to re-take the test.

In Rumsey v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 140956 (WD MI, Sept. 30, 2013), a Michigan federal district court largely adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 142633, June 24, 2013) and dismissed most of plaintiffs' claims that their right to practice their Native American religion had been infringed through, among other things, dismantling of a sweat lodge. Plaintiffs were allowed to proceed on their complaint that they were ordered to move their religious ceremonies indoors and that they were required to have at least 5 Native American Traditional Way members present in order to conduct group worship.

In Kamau v. Louisiana State Police Department, 2013 U.S. Dist. LEXIS 142861 (WD LA,Sept 30, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 142860, Sept. 9, 2013) and dismissed a Muslim inmate's complaint that he was not permitted to join with others in Juman prayer outside his dormitory room.

In Harris v. Pimentel, 2013 U.S. Dist. LEXIS 143432 (ED CA, Sept. 30, 2013), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's claim that his free exercise rights were infringed when, during a search of his cell, a correctional officer stepped on plaintiff's copy of the Qur'an and slid it under the bunk on the floor.

House Passes Resolution Encouraging No Reduction In Military Religious Services During Shut Down

Military Times reports that the House of Representatives yesterday passed H. Con. Res. 58 urging the Secretary of Defense to not allow the government shut down reduce the offering of religious services on military bases. The vote for the resolution was 400-1.  Military chaplains continue to work during the shut down, but the resolution is aimed at contract personnel who are involved in performing religious services or conducting religious activities.

State Prison Includes Private Bible College

The New York Times today reports on a Southern Baptist Bible College that operates inside the Louisiana State Penitentiary. So far it has 241 graduates, mostly lifers, including 15 Muslims who took the same courses but minister to Muslim inmates. In addition it has granted hundreds of certificates or associate degrees to men who then can act as informal counselors. The college has structured its operations to avoid church-state problems-- it is privately funded, voluntary and admits non-Christians.

School Jesus Portrait Case Settled

The Columbus Dispatch reports today that an Ohio federal district court has accepted a settlement in Doe v. Jackson City School District. The suit (see prior posting) was an Establishment Clause challenge to a portrait of Jesus displayed on an entrance wall at a Jackson, Ohio Middle School. In April, the school had agreed to take down the picture, but plaintiffs alleged that it was still in view of those entering an art-room storage area. Under the settlement, the school board has agreed to keep the picture off of school district property.  It is also paying $3000 damages to each of the 5 anonymous plaintiffs, and $80,000 in attorneys' fees to the ACLU and Freedom From Religion Foundation.

Florida Prison Authorities Allow Jewish Prisoner To Be Circumcised

Stanford Law School's Religious Liberty Clinic, in a release distributed by e-mail, reports that the Florida Department of Corrections, under threat of a RLUIPA lawsuit, has agreed that Jewish prisoner Pablo Diaz can be circumcised while in prison. The case, as described by the release, involves an unusual factual situation:

[Diaz] was born in Cuba to Jewish parents who decided not to have him circumcised as an infant for fear of political persecution. After returning to the faith as an adult through participation in prison ministry, Diaz petitioned tirelessly for the right to take part in the sacred ritual. Diaz viewed circumcision as indispensable to his standing before God. His request was supported by a mohel who offered to perform the procedure for free.

(See prior related posting.)

Council of Europe's Parliamentary Assembly Calls For Regulation of Ritual Circumcision

Last Tuesday, the Council of Europe's Parliamentary Assembly adopted Resolution 1952, Children's Right To Physical Integrity, and a related Recommendation to members. The Resolution provides in part:

The Parliamentary Assembly is particularly worried about a category of violation of the physical integrity of children, which supporters of the procedures tend to present as beneficial to the children themselves despite clear evidence to the contrary. This includes, amongst others, female genital mutilation, the circumcision of young boys for religious reasons, early childhood medical interventions in the case of intersexual children and the submission to or coercion of children into piercings, tattoos or plastic surgery....

The Assembly therefore calls on member States to:

...take the following measures with regard to specific categories of violation of children’s physical integrity:

...publicly condemn the most harmful practices, such as female genital mutilation, and pass legislation banning these.... 

clearly define the medical, sanitary and other conditions to be ensured for practices which are today widely carried out in certain religious communities, such as the non-medically justified circumcision of young boys....

According to the Jerusalem Post:

Large majorities rejected five amendments that sought to remove or alter references to the circumcision of boys. An amendment that removed a reference to the “religious rights of parents and families” was supported by a large majority of members.

The Resolution and Recommendation are not binding on EU members. Among reactions to the resolution are those of Brendan O'Neill at The Telebraphand Eugene Kontorovich at Volokh Conspiracy.

In Contraceptive Mandate Case, Court Allows Only Limited Delay For DOJ Because of Government Shut-Down

In Priests For Life v. U.S. Department of Health and Human Services, (D DC, Oct. 2, 2013), a D.C. federal district court denied the government's motion for a Stay of Litigation in Light of a Lapse of Appropriations in a suit challenging the final rules on application of the Affordable Care Act contraceptive coverage mandate to non-profit religious organizations. The Department of Justice sought the stay because DOJ attorneys, except in limited circumstances, are barred from working during the current government shut-down. However since previously the parties had agreed on various streamlining procedures conditioned on a court decision by December 31, the court concluded that only a limited extension of the briefing schedule would be granted. The government must now file its response to plaintiff's motion by Oct. 17. ACLJ issued a press release on the ruling. (See prior related posting.)

IRS Asks For Input On Form 1023 Used By Applicants for Non-Profit Tax Status

The Internal Revenue Service published in the Oct. 1 Federal Register a Notice and Request for Comments on changes that should be made in Form 1023, the form used by non-profit organizations to apply for Section 501(c)(3) status. The Notice also asks for comment on the burdens imposed by the Form.  Comments are due by Dec. 2.

NY Methodist Hospital Not Religious Institution For Ministerial Exception Doctrine or RFRA

Penn v. New York Methodist Hospital, 2013 U.S. Dist. LEXIS 142109 (SD NY, Sept. 30, 2013), is in part a Title VII discrimination and retaliation lawsuit by a former part-time staff chaplain at New York Methodist Hospital. Among its defenses, the hospital asserted the ministerial exception doctrine. The court rejected the defense however because of a lack of evidence that the hospital is a religious institution or is religiously affiliated. In 1975, the hospital had amended its articles of incorporation to delete provisions relating to its relationship with The United Methodist Church.  For the same reason, the Religious Freedom Restoration Act does not bar commencement of the action.

10th Circuit Tells District Court To Abate Proceedings In Contraceptive Mandate Case Until SCOTUS Disposes of Hobby Lobby

In Newland v. Sebelius, (10th Cir., Oct. 3, 2013), the U.S. 10th Circuit Court of Appeals held that a district court did not abuse its discretion in granting a preliminary injunction against enforcement of the Affordable Care Act contraceptive coverage mandate to a small business and its Catholic owners and officers who object to the mandate on religious liberty grounds. (See prior posting.) The court remanded the case to the district court, but ordered it to abate proceedings until the U.S. Supreme Court completes its consideration of the Hobby Lobby case in which a petition of certiorari has been filed. (See prior posting.)

Mosque Wins Preliminary Injunction Barring Enforcement of Zoning Change

In Al Falah Center v. City of Bridgewater, (D NJ, Sept. 30, 2013), a New Jersey federal district issued a preliminary injunction against enforcement of a zoning law change enacted quickly after a Muslim group applied for a permit to construct a mosque on land it had acquired. The new ordinance barred houses of worship on the newly-acquired land.  The court found a likelihood of success as to plaintiff's RLUIPA substantial burden claim. The court also denied defendants' motion for summary judgment on free exercise, equal protection and RLUIPA claims. The Newark Star-Ledger reports on the decision. Brennan Center has further background and links to pleadings in the case.

Recusal Motion Rejected In Milwaukee Archdiocese Reorganization Case

In In re Archdiocese of Milwaukee, 2013 U.S. Dist. LEXIS 141658 (ED WI, Oct. 1, 2013), Wisconsin federal district court judge Rudolph Randa denied a motion to recuse himself and vacate his earlier decision that a $55 million cemetery perpetual care trust fund is unavailable to creditors, including abuse victims, in the bankruptcy reorganization of the Milwaukee Catholic Archdiocese. (See prior posting.) The motion was based on the fact that in 1975 the judge had purchased a burial crypt for his parents in one of the Catholic Archdiocese's cemeteries. In denying the motion, Judge Rnada said in part:

Aging and death are facts of life, not just for judges. Over 500,000 individuals are interred in the Milwaukee Catholic Cemeteries, so my relation to some of those individuals is a characteristic that I share with countless members of this community. The logical conclusion of the Committee‟s argument is that none of these people could render an impartial decision this case. This is untenable, and it is objectively unreasonable.

The Milwaukee Journal-Sentinel reports on the decision.

Recent Prisoner Free Exercise Cases

In Conway v. Purves, 2013 U.S. Dist. LEXIS 112424 (ED MI, Aug. 9, 2013), a Michigan federal district court denied as moot Muslim inmates  challenges the nutritional adequacy of the meals provided during Ramadan 2013.The magistrate's recommendation in the case is at 2013 U.S. Dist. LEXIS 138997, July 18, 2013.

In Entler v. Knox, 2013 U.S. Dist. LEXIS 138837 (WD WA, Sept. 26, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 138838, Aug. 14, 2013)  and dismissed complaints by an inmate who was an adherent of the Essene Assembly of god that his rights were violated when authorities confiscated his religious headdress (made from a white t-shirt) and required him to wear his crucifix inside his clothing.

In Cotton v. Cate, 2013 U.S. Dist. LEXIS 138923 (ND CA, Sept. 24, 2013), a California federal district court held that an inmate who was an adherent of Shetaut Neter may proceed with his claims against the prison chaplain for failing to respond to his request for religious services, items for worship and access to a chaplain of his religion.

In Johns v. Lemmon, 2013 U.S. Dist. LEXIS 139132 (ND IN, Sept. 27, 2013), an Indiana federal district court ruled in favor of a Jewish inmate who, for religious reasons, wants his meals for Saturday delivered to him on Friday before the beginning of the Sabbath.

In Infinite Allah v. Commonwealth of Virginia, 2013 U.S. Dist. LEXIS 139238 (WD VA, Sept. 27, 2013), a Virginia federal district court held that there are issues of fact that preclude the award of summary judgment for the state in a suit by an inmate seeking recognition for his religious group, the Nation of Gods and Earths.

In Johnson v. Nevada ex rel. Board of Prison Commissioners, 2013 U.S. Dist. LEXIS 139426 (D NV, Sept. 26, 2013), a Nevada federal district court, rejecting in part a magistrate's recommendation (2013 U.S. Dist. LEXIS 139422, July 10, 2013), permitted an Orthodox Christian inmate to proceed with his claim for injunctive relief in order to receive kosher meals.

In Wilson v. Sabatka-Rine, 2013 U.S. Dist. LEXIS 139754 (D NE, Sept. 27, 2013), a Nebraska federal district court permitted a Wiccan inmate to proceed with his complaint that authorities confiscated his Tarot Cards and Gemstones. However the court dismissed claims of various other interferences with his ability to practice his Wiccan religion.

In Clay v. Steele, 2013 U.S. Dist. LEXIS 140056 (ED MO, Sept. 30, 2013), a Missouri federal district court dismissed a claim by an inmate who described his religion as Al-Islam that his rights were violated when he was not served meat as part of his religious diet.

Pennsylvania Same-Sex Marriage Ban Challenged In State Court

The Legal Intelligencer reported last week that 21 couples have filed a lawsuit in Pennsylvania's Commonwealth Court challenging the constitutionality of the state's ban on same-sex marriage.  The suit comes on the heels of  a challenge in federal court filed in July by the ACLU. (See prior posting.) Plaintiffs in the most recent case are couples who were issued marriage licences by Montgomery County clerk D. Bruce Hanes who began issuing them in July, despite the ban in state law. (See prior posting.)

10th Circuit Requires Strict Notice For Religious Accommodation, Ruling In Favor of Abercrombie & Fitch

In EEOC v. Abercrombie & Fitch Stores, Inc., (10th Cir., Oct. 1, 2013), the U.S. 10th Circuit Court of Appeals ruled in favor of Abercrombie & Fitch in a case in which a Muslim applicant for employment who wore a hijab (Muslim headscarf) to her employment interview was not hired. The EEOC claimed that Abercrombie failed to provide reasonable religious accommodation to Samantha Elauf whose hijab conflicted with Abercrombie's "look policy."  The court held that the EEOC had failed to show that Elauf had informed Abercrombie that she wore her hijab for religious purposes and that she needed a religious accommodation due to a conflict with Abercrombie's clothing policy. In describing a strict notice requirement, the majority said:

[E]ven if an employer was generally aware of the beliefs and observances that are traditionally associated with a particular religious group, and also knew that the applicant or employee displayed symbols associated with that group—or even that the applicant or employee specifically claimed to be a member of that group—ordinarily, the employer would still not know whether the conflicting practice in question actually stemmed from religious beliefs unless the particular applicant or employee informed the employer, because under Title VII ... religion is a uniquely personal and individual matter. ...

[E]ven if an employer has particularized, actual knowledge of the religious nature of the practice—that is, knowledge that the practice of a particular applicant or employee stems from his or her religious beliefs—that still would not be sufficient information to trigger the employer’s duty to offer a reasonable accommodation. That is because the applicant or employee may not actually need an accommodation. In other words, an applicant or employee may not consider his or her religious practice to be inflexible; that is, he or she may not feel obliged by religion to adhere to the practice.

Judge Ebel dissented in part, concluding that the case should be remanded for a jury trial. [Thanks to Steven H. Sholk for the lead.]

Anti-Gay Pastor Will Run For Governor Of Massachusetts

In Massachusetts, controversial anti-gay pastor Scott Lively announced in a press release on Monday that he will run for governor of the state, although he conceded that "it would take a miracle from God" for him to win.  Activists have sued Lively for fomenting anti-gay repression in Uganda. (See prior posting.) Explaining why he will run, Lively said in part:

The people of this state need a candidate who can clearly and unapologetically articulate Biblical values without fear or compromise. They need a candidate who will tell the simple truth that abortion is murder, and homosexuality is condemned by God (but that Jesus forgives and heals those who repent). That parents and not the state have authority over their children, because government is our servant and not our master. That socialism is slavery and humanism breeds corruption. But mostly they need a leader who will remind the people that Massachusetts was founded upon Jesus Christ and the Bible and that our future security and prosperity depend on restoring our trust in Him. “Blessed is the nation whose God is the Lord!” Psalm 33:12.

Edge yesterday reported on Lively and his decision to run.

3rd Circuit Upholds Sentence Imposed On Rabbi For Money Laundering

In United States v. Fish, (3rd Cir., Oct. 1, 2013), the U.S. 3rd Circuit Court of Appeals upheld a 46 month prison sentence imposed on a Brooklyn, New York rabbi who, in a plea agreement, plead guilty to one count of conspiracy to commit money laundering. (See prior posting.) The Orthodox rabbi, Mordchai Fish, was part of a scheme to launder money through tax exempt Jewish charities. The appeals court agreed with the trial court that the criminal activity qualified as sophisticated money laundering that called for a two-level sentencing enhancement under the federal Sentencing Guidelines. AP reports on the decision.

Arizona Appeals Court Upholds School Voucher Program

In Niehaus v. Huppenthal, (AZ App., Oct. 1, 2013), the Arizona Court of Appeals upheld against state constitutional challenge Arizona's Empowerment Scholarship Accounts program that provides school vouchers for students with disabilities. Parents can apply the scholarship money to any of eleven permissible uses, including tuition at private and parochial schools. The court held that the program does not violate Article 2, Section 12, of the Arizona Constitution that provides "n]o public money . . . shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment."  The court held:

The ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion. Any aid to religious schools would be a result of the genuine and independent private choices of the parents.

Nor does the program violate Article 9, Section 10 of the Arizona Constitution that provides: "[n]o tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation." Here, according to the court: "The specified object of the ESA is the beneficiary families, not private or sectarian schools."

The Arizona Daily Star reports on the decision.

Key Claims Of Favoritism To Jewish Private Schools Can Move Ahead

The Lower Hudson Journal News reports that on Monday, a New York federal district court dismissed a number of claims in a class action lawsuit against East Ramapo, NY school officials, but allowed key claims to move ahead. According to the report:

The lawsuit can now confront several of the most divisive issues in East Ramapo, including the placement of Hasidic and other Orthodox [Jewish] students in private special-education schools at public expense, the alleged purchase of religious textbooks for private schools, and whether the school board tried to sell two schools at below-market rates.

[The judge] also allowed the lawsuit to look at whether the school board hired Long Island-based lawyer Albert D’Agostino in 2009 as part of a conspiracy to place special-education students in private schools in a manner that forfeits state reimbursements.

The school district has long had tension between public school parents and the school board which they accuse of favoring Orthodox Jewish private schools. (See prior posting.)

Suit On Use Of Community Rooms For Religious Programs Settled

Liberty Counsel announced yesterday that a settlement has been reached in its lawsuit against Plainfield, Illinois, over policies that barred use of Community Rooms for a dozen specific types of activities including use for "Religious services or other religious purposes." The lawsuit (see prior posting) challenged the refusal to allow Liberty Counsel to use a room for an educational program promoting a Christian view of the founding of America. Under the settlement, the city will now allow the program, and will also change its policies to provide: "The Village does not prohibit an applicant from presenting civic, cultural, educational or informational programs from a religious viewpoint."

Disgruntled Church Member Can Proceed On Various Claims Against Church and Its Personnel

In Zhelezny v. Olesh, (OH App., Sept. 30, 2013), an Ohio state appellate court reversed in part a trial court's dismissal of a suit by a disgruntled former church member against the church, its pastors and various of its members.  Apparently the former church member, Vladimir Zhelezny, protested publicly against the church and its pastor in ways that led to heated arguments and physical confrontations.  As a result the pastor sent Zhelezny a letter in 2008 restricting his access to the church for one year, and then extended the ban for a second year.  After a 2010 altercation, a deputy sheriff removed Zhelezny from church premises and filed criminal trespass charges that were eventually dismissed.  Subsequently Zhelezny was involved in another physical confrontation at the church. Zhelezny sued alleging assault and battery; extortion;  malicious prosecution; violation of civil rights; civil conspiracy; and  intentional infliction of emotional distress.

The court held that the trial court erroneously relied on the ban letters in dismissing on the pleadings malicious prosecution and assault and battery claims, since the letters were not made part of the pleadings. The trial court also erred in dismissing most of the other state law claims on ecclesiastical abstention grounds. They can be decided without a need to examine purely ecclesiastical issues. However the federal civil rights conspiracy claims would require interpretation of ecclesiastical documents, which a civil court may not do.

Magistrate Rules On Admissibility of Expert Opinion In Negligent Supervision Suit Against LDS Church

In A.R. v. Corporation of the President of the Church of Jesus Christ of Latter-day Saints, 2013 U.S. Dist. LEXIS 140679 (D CO, Sept. 30, 2013), a Colorado federal magistrate judge ruled on an expert's qualifications and the portions his report that are admissible in a lawsuit charging the LDS Church with negligent hiring, negligent supervision, breach of fiduciary duty, and outrageous conduct.  The suit was filed by a 15-year old who had sexual relations with a 40-year old LDS Sunday school teacher who, she subsequently found out through Facebook, was engaged to another woman. The teacher, who has plead guilty to sexual assault, is also being sued. In assessing the expert's qualifications, the court said in part:

... [A]bsent any proof that there is a specific standard of care that applies to churches who are hiring Sunday school teachers, Mr. Isenstadt is qualified to render an opinion regarding the limited topic of the desirability of conducting a background check as part of hiring practices in general.

Brazilian Legislator Speaking At Evangelical Rally Orders Arrest For Lesbian Kiss In Audience

Global Voices reported last week on a Sept. 15 incident in Brazil in which police arrested two young women who stood on their chairs and demonstrably kissed each other romantically during an evangelical event in the city of São Sebastião.  Pastor Marco Feliciano, a Brazilian congressman and president of the House Commission for Human Rights and Minorities, interrupted his presentation to the audience of 70,000 to order police to arrest the two women. He told the audience: "This here isn't palace where anything goes, It’s the house of God."  Subsequently Feliciano justified his actions on Twitter, saying that the women were violating Art. 208 of the Brazilian Penal Code that prohibits disturbing a ceremony or practice of religious worship.

Faith Healing Mother's Conviction Upheld In Tennessee

In State of Tennessee v. Crank, (TN Ct. Crim. App., Sept. 26, 2013), the Tennessee Court of Criminal Appeals affirmed the conviction of Jacqueline Crank on one charge of child abuse or neglect related to the 2002 death of her teenage child.  The mother turned to prayer instead of medical treatment for her daughter who eventually died of cancer.  Tennessee has an exemption (TN Stat 39-15-402(c)) from child abuse charges for treatment  "through prayer alone in accordance with the tenets or practices of a recognized church or religious denomination by a duly accredited practitioner thereof in lieu of medical or surgical treatment." This exemption was apparently too narrow to cover Crank's attempts at faith healing.  Crank argued that this exemption is vague, and violates the Establishment Clause and equal protection clause, apparently attempting to get the court for that reason to strike down the entire child neglect statute. The court held, however, that even if the exemption is unconstitutional, it would just strike it from the law and uphold the remainder of the child neglect statute.  The court also refused to apply the Tennessee Preservation of Religious Freedom Act to the case because it was not enacted until several years after the prosecution in this case was commenced.

Sikhs In U.S. Continue To Be Stereotyped As Terrorists Because of Their Turbans

Last week the ACLU sent a letter (full text) to top officials of the Mississippi Department of Transportation complaining about mistreatment of a Sikh truck driver by DOT officers who told him that his kirpan was illegal. One officer taunted him, declaring that Sikhs are depraved and terrorists. Ultimately he was arrested for failing to obey an officer's command. As reported by an ACLU press release, when the truck driver returned to Mississippi for his court date, the judge ordered him ejected from the courtroom for wearing a turban, calling it a "rag," and delayed his hearing to the end of the day. All of this generated a Justice Department investigation and a revision of county non-discrimination policy. The ACLU also plans to file an ethics complaint against the judge.

Meanwhile, according to Arutz Sheva yesterday, the Sikh Coalition has asked major U.S. retailers to remove from their shelves Halloween masks of Osama bin-Laden wearing a turban, fearing that Sikhs are being stereotyped as terrorists because of their turbans. The action comes after last weekend's attack in New York on Columbia University faculty member Dr. Prabhjot Singh who was surrounded by a large group of teens shouting "get Osama" and "terrorist". [Thanks to Jack Levey for the lead.]

Recent Prisoner Free Exercise Cases

In Ford v. Palmer, (2d Cir., Sept. 24, 2013), the Second Circuit reversed the district court's dismissal of a Muslim inmate's retaliation claim. Plaintiff claims a corrections officer threatened to poison him for his reporting the officer's failure to provide him with hot water for his Ramadan breakfast.

In Williams v. Secretary Pennsylvania Department of Corrections, (3d Cir., Sept. 26, 2013), the Third Circuit affirmed the dismissal of a complaint by a Muslim inmate about the presence of a Christmas tree and Christmas wreaths in the interfaith chapel where Muslims held their weekly Jumu'ah services. The tree was placed in the back of the chapel during Muslim services.

In Gross v. Hartley, 2013 U.S. Dist. LEXIS 135012 (ED CA, Sept. 20, 2013) and Belmont v. Hartley, 2013 U.S. Dist. LEXIS 135008 (ED CA, Sept. 20, 2013), a California federal magistrate judge dismissed, with leave to amend, Muslim inmates' complaint that Muslims could use the prison chapel for prayer only when scheduled by the chaplain, and not at other times only with intermittent custodial coverage.

In Jones v. Washington, 2013 U.S. Dist. LEXIS 135067 (WD WA, Sept. 20, 2013), a Washington federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 135082, Sept. 5, 2013) and dismissed, with leave to amend, a Muslim inmate's complaint of religious discrimination and violation of his free exercise and free speech rights when his extended family visits were suspended after officials discovered he was involved in a "romantic" pen pal relationship with someone other than his wife. He was also told to end the pen pal relationship.

In Thomas v. McDaniel, 2013 U.S. Dist. LEXIS 134830 (D NV, Sept. 19, 2013) a Nevada federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 135090, July 22, 2013) and refused to grant summary judgment to a Muslim inmate who claimed that authorities kept him in administrative segregation without a proper hearing in retaliation for his insisting on participating in Muslim group worship, and that this violated his free exercise and equal protection rights.

In Cebertowicz v. Love, 2013 IL App (5th) 120273-U (IL App., Sept. 24, 2013), an Illinois state appellate court upheld dismissal of a Catholic inmate's free exercise claim, finding that he had not alleged facts suggesting that the denial of a meatless diet on all Fridays and Ash Wednesday substantially burdened his free exercise rights.

In Womble v. Berghuis, 2013 U.S. Dist. LEXIS 135443 (WD MI, Sept. 23, 2013), a Michigan federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 136713, Aug. 21, 2013) and refused to grant summary judgment to defendants in a Buddhist prisoner's complaint that he was wrongly taken off a strict vegan diet after a correctional officer inaccurately reported he had been seen eating eggs.

In Weaver v. Amato, 2013 U.S. Dist. LEXIS 136102 (ND NY, Sept. 24, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 136561, May 31, 2013) and dismissed plaintiff's complaint, stated in general terms, that involuntary protective custody inmates are precluded from practicing religion.

In Johns v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 135239 (WD MI, Sept. 23, 2013), a Michigan federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 136893, May 31, 2013) and upheld the denial of a vegetarian diet to a Nation of Islam inmate who changed his religious preference to Buddhist. The denial was based on the inmate's answers to three questions about Buddhism and a vegetarian diet, as well as on his record of food purchases.

In Smith-Bey v. Dodd, 2013 U.S. Dist. LEXIS 137363 (SD IN, Sept. 25, 2013), an Indiana federal district court dismissed free exercise and RLUIPA claims by a Muslim inmate (a member of the Moorish Science Temple of America) who objected to confiscation of a prayer rug, two bottles of prayer oil and prayer socks, as well as to the requirement that prayer oil be purchased from the prison commissary.

Developments In Religious Accommodation In Employment Lawsuits

The Sacramento Bee reported Friday that an Elk Grove, California car dealership, Maita Chevrolet, has settled a religious accommodation lawsuit brought against it by the EEOC. The suit claimed that Maita insisted on scheduling car salesman Anthony Okon, a Nigerian immigrant and Seventh-day Adventist, for Friday night and Saturday work shifts, and eventually fired him when he continued to take leave on Friday nights and Saturdays. Maita will pay its former employee $158,000, and will revise its personnel policy manual and undertake other training and reporting obligations.

Al.com reported last week that the city of Birmingham, Alabama has agreed to settle a Justice Department lawsuit against it claiming that it discriminated against a former public safety dispatcher on religious grounds.  The former employee,  Renee Gunn, who is an adherent of Messianic Judaism, resigned after the city insisted on scheduling her to work on her Sabbath.  Under the settlement, which must still receive court approval, the city will pay Gunn $80,000 in back wages and damages, and will rehire her with a work schedule that does not require her to work on her Sabbath.

The Laurinburg Exchange reported last week that the EEOC has has filed suit against two corporations that operate a chain of Kentucky Fried Chicken Restaurants in North Carolina and South Carolina for refusing to accommodate the religious beliefs on an employee.  Sheila Silver, a convert several years ago to the Pentecostal faith, was fired by Scottish Food Systems Inc. and Laurinburg KFC Take Home Inc. when she insisted on wearing a skirt instead of the pants required by the company's dress code.

Alabama Police Enlist Christian Pastors To Aid At Crime Scenes

The Atlantic last week reported on a new program instituted by the Montgomery, Alabama police department which places Christian pastors at crime scenes to counsel victims and witnesses, and pray with them. The department's chaplain acknowledges an evangelistic element in the program that is aimed largely at the city's black community. Its aim is to reduce Montgomery's murder rate, but the constitutionality of the program is questionable. Similar programs are apparently already functioning in Dayton, Ohio and Arlington, Texas. [Thanks to Scott Mange for the lead.]

Suit Challenges Kansas' Adoption of National Science Standards

Citizens for Objective Public Education (COPE) on Friday announced that it has filed a federal lawsuit challenging the adoption by the Kansas State Board of Education of the National Academy of Sciences Framework for K-12 Science Education  and the Next Generation Science Standards based on that Framework. The complaint (full text) in COPE v. Kansas State Board of Education, (D KA, filed 9/26/2013) contends that these:

will have the effect of causing Kansas public schools to establish and endorse a non-theistic religious worldview ... in violation of the Establishment, Free Exercise, and Speech Clauses of the First Amendment, and the Equal Protection Clauses of the 14th Amendment....

The F&S take impressionable children, beginning in Kindergarten, into the religious sphere by leading them to ask ultimate religious questions like what is the cause and nature of life and the universe - "where do we come from?"...

Instead of explaining to students that science has not answered these religious questions, the F&S seek to cause them to accept that controversial materialistic/ atheistic answers are valid.

The Huffington Post, reporting on the lawsuit, describes it as a suit by an anti-evolution group challenging a science curriculum that teaches evolution.

Recent Articles of Interest

From SSRN:

• Hassan J. Ndzovu, Is the Inclusion of the Kadhi Courts in the Kenyan Constitution Against the Principle of a Secular State?, (September 18, 2013).
• Iain T. Benson, The Search for Pluralism in the Writings of Said Nursi and John Courtney Murray: Prophetic Pluralism in Islam and Roman Catholicism, (September 19, 2013).
• Olga Litsenberger, German Lutherans and Catholics in Russia: Settling, Population Changes, Peculiarities of Integration and Adaptation, (July 8, 2013).
• Iain T. Benson, Law Deans, Legal Coercion and the Freedoms of Association and Religion in Canada, (The Advocate, Vol. 71, Part 5, pp. 671-675, September 2013).
• Iain T. Benson, Religious Interfaith Work in Canada and South Africa with Particular Focus on the Drafting of the South African Charter of Religious Rights and Freedoms, (HTS Teologiese Studies/Theological Studies, 69(1), July 2013).
• John Obi Ifediora, The Blood Libel Legend: Its Longevity and Popularity, (August 31, 2013).
• B. Jessie Hill, Anatomy of the Reasonable Observer, (79 Brooklyn Law Review (Forthcoming)).
• Adis Duderija, Maqāsid Al Shari Ah, Gender Egalitarian Qur’Ānic Hermeneutics and the Reformation of Muslim Family Law, (in Maqasid Al Shari’ah and Contemporary Muslim Reformist Thought, ed. Adis Duderija, Palgrave 2014, Forthcoming).
• Adis Duderija, Neo-Traditional Salafis in the West: Agents of (Self)-Exclusion, (in Samina Yasmeen, Muslims in the West and Social Exclusion, Ashgate, 2014, Forthcoming).
• Alex Reed, Subsidizing Hate: A Proposal to Reform the Internal Revenue Service's Methodology Test, (Fordham Journal of Corporate and Financial Law, Vol. 17, p. 824, 2012). 

From SmartCILP:

• John Infranca, Institutional Free Exercise and Religious Land Use, 34 Cardozo Law Review 1693-1750 (2013).

In Split Decision, South Carolina High Court Says Trustees' Defamation Suit Against Pastor Can Proceed

In a 3-2 decision in Banks v. St. Matthew Baptist Church, (SC Sup. Ct., Sept. 25, 2013), the South Carolina Supreme Court held that a defamation lawsuit by former trustees of a church against the church's pastor can proceed under the "neutral principles of law" approach without violating the First Amendment.  In the case, the trustees complained that at a congregational meeting, the pastor falsely charged them with mismanagement of funds, failing to insure an apartment building purchased with church funds and placing a mortgage on church property without his knowledge.

Chief Justice Toal and Justice Kittredge dissenting argued:

the Trustees ignore the pertinent facts that the alleged defamation took place during a congregational meeting and that the allegedly defamatory statements directly concerned their continued leadership, both financial and spiritual. Thus, the dispute here involved integral components of ecclesiastical governance.

In Illinois Challenge To Same-Sex Marriage Ban, Court Allows Further Proceedings On Equal Protection and Due Process Challenges

In Darby v. Orr, (IL Cir. Ct., Sept. 27, 2013), an Illinois state trial court gave a substantial victory to proponents of same-sex marriage in the state.  First the court held that the same-sex marriage ban is not facially neutral and that plaintiffs have alleged facts which, if proven at trial, would establish that they belong to a suspect or quasi-suspect class protected by the state constitution's equal protection clause.  It also allowed plaintiffs to move ahead on their due process challenge, holding that "the present case allows the Illinois courts to consider, for the first time, whether the concept of choice as an aspect of the fundamental right to marry ... might apply to same-sex couples seeking to marry." The court however dismissed plaintiffs claims that the same-sex marriage ban amounts to unconstitutional sex discrimination, violates the right to privacy protected by the state constitution and violates the special legislation ban in the state constitution. The Chicago Tribune reports on the decision.

A Kansas School Board Votes To Allow Student-Led Prayer At All Activities

At its Sept. 23 meeting, The Kansas USD 480 School Board (in Liberal Kansas) voted unanimously "to allow student led prayer at all USD 480 activities." (Board minutes). Last Tuesday's High Plains Leader & Times reported on the move:

Several years ago, LHS discontinued prayer at events like football games. Administration voiced concern that, by making the P.A. system available for prayers led by students or community members, the district could be perceived as sanctioning or even promoting traditional Christian prayer in violation of federal law. Student-led prayers then moved to the football field itself, prior to the game. However, no microphone or speaker system allowed spectators to hear such prayers. Monday night's vote will permit students to utilize the P.A. system for prayer before football games and all other special activities in the district.

Board president Delvin Kinser said that the LHS Christian fellowship group, StandOut, would participate in student-led prayer with enthusiasm.

[Thanks to Friendly Atheist blog via Scott Mange for the lead.]

New Jersey Trial Court Says State Equal Protection Guarantee Requires Allowing Same-Sex Marriage; Appeal Planned

In Garden State Equality v. Dow, (NJ Super. Ct., Sept. 27, 2013), a New Jersey State trial court held that after the U.S. Supreme Court's Windsor decision extending federal spousal benefits to same-sex married couples (but not to couples merely in civil unions), the equal protection guaranties of the New Jersey state constitution requires the state to extend the right to marry to same-sex couples. Previously New Jersey only recognized civil unions. The court ordered that its decision not take effect until Oct. 21 in order to give the state time to either effectuate or appeal the ruling. Friday's New Jersey Star-Ledger reports on the decision. According to PolitickerNJ on Friday, a spokesman for New Jersey Governor Chris Christie said that the administration would appeal the ruling to the New Jersey Supreme Court.

Oral Arguments In DC Circuit Contraceptive Mandate Case Available

Yesterday the D.C. Circuit Court of Appeals heard oral arguments in Gilardi v. U.S. Department of Health and Human Services. (Audio of oral arguments- download).  In the case, the district court refused to issue a preliminary injunction to prevent enforcement of the Affordable Care Act contraceptive coverage mandate in a suit by two related for-profit Subchapter S corporations and their Catholic owners. (See prior posting.)  The government views this case as the test case in the D.C. Circuit on small business free exercise and RFRA challenges to the mandate. (See prior posting.) AP reports on the oral arguments.

Catholic Religious Order Files Class Action Challenging Contraceptive Coverage Mandate

Another non-profit has filed suit challenging the Administration's compromise accommodation for their religious objections to the Affordable Care Act contraceptive coverage mandate. The Final Rules provide for insurance companies or third party administrators to furnish health plan enrollees with coverage for contraceptive services.  Yesterday, the Little Sisters of the Poor filed a class action on behalf of the 200 Catholic non-profits that participate in the Christian Brothers Employee Benefit Trust. The Trust is a self-insured "church plan". The complaint (full text) in Little Sisters of the Poor Home for the Aged v. Sebelius, (D CO, filed 9/24/2013) alleges that:

The trustees of the Christian Brothers Trust have not appointed an administrator of the Christian Brothers Trust that is willing to act as a “third party administrator” under the Final Mandate, because the Christian Brothers Trust would thereby be contracting for, arranging for or otherwise facilitating the provision of abortifacients, sterilizations and contraceptives in violation of Catholic teachings.

Becket Fund issued a press release announcing the filing of the lawsuit.

In India, Islamic Organization Sues Government For Defamation Over Police Memo

In India, the Islamic organization Jamaat-e-Islami Hind yesterday filed a defamation lawsuit in Bombay High Court against the Government of India, Government of the state of Maharashtra and the Maharashtra Director General of Police over a memo issued in April by the Mumbai police.  According to NDTV, the memo, circulated to all police stations, claimed that educational institutions run by Jamaat-e-Islami are attempting to enroll female students as jihadis. A Jamaat spokesman says that the police have admitted they made a mistake, but have not apologized in writing.

Today Is "See You At The Pole" Day

Today is the annual See You At the Pole Day. Begun in 1990, the event involves a prayer rally at the school flag pole, usually before school begins in the morning. (Background.) The student-sponsored events, coordinated by a Texas-based organization and supported by some 100 Christian churches and organizations, have spread to 20 countries. Organizers encourage students to pray for their friends, families, teachers, school, and nation.

EEOC Sues Over Company's Refusal To Accommodate Religious Objection To Biometric Hand Scanning

The EEOC filed a lawsuit in a West Virginia federal district court on Monday against Consol Energy and Consolidation Coal Co. charging that they had violated Title VII by failing to accommodate a Christian employee's religious objections to biometric hand scanning to track his time and attendance. According to the Clarksburg Exponent Telegram, Beverly R. Butcher Jr., a laborer at the companies' mining operation, believed that hand scanning involved the Mark of the Beast.  The company, relying on the scanner vendor's interpretation of the Mark of the Beast in Book of Revelation 13:16, offered to allow Butcher to scan his left hand (since the Biblical verse refers only to the right hand). However Bucher wanted instead to either keep written records of his hours or check in and out with a supervisor. The company rejected this, which allegedly led to Bucher retiring earlier than he otherwise would have done.

Court Says Spousal Privilege Does Not Apply To Couple In Civil Union

In Commonwealth of Kentucky v. Clary, (KY Cir. Ct., Sept. 23, 2013), a Kentucky trial court refused to apply the spousal privilege of Kentucky Rule of Evidence 504 to a couple who are parties to a Vermont civil union.  Under the rule, a spouse may refuse to testify, or prevent his or her spouse from testifying, about events occurring after the date of their marriage.  According to the Louisville Courier Journal, prosecutors trying Bobi Jo Clary for murder claim that her partner Geneva Case heard her admit to killing the victim, and saw Clary clean blood out of the victim's van and abandon it. The court explained that it need not decide whether the privilege must be applied to same-sex married couples since here the parties were only in a civil union.  Even though Vermont now recognizes same-sex marriage, the parties to a civil union in Vermont are required to take specified steps to convert the civil union to a marriage even for Vermont to recognize it. [Thanks to Thomas Rutledge for the lead.]

State Appeals Court Resolves Serbian Orthodox Church Dispute

Puskar v. Krco, (IL App., Sept. 23, 2013), involves a complicated dispute over whether or not the Serbian Orthodox Metropolitanante of New Gracanica Diocese of the United States and Canada reunited with the Serbian Orthodox Church based in Belgrade, Serbia.  In 1992, the two organizations took steps to unite by adopting Transitional Regulations.  Bishop Longin, appointed by the Belgrade church, announced in 2009 that a reorganization had occurred and that there is no longer a split between the Metropolitanante Diocese and the Belgrade Church.  Plaintiffs sued for a declaratory judgment and injunction, claiming that the Assembly of the Metropolitanante Diocese never authorized a reorganization and retained self-governing authority. The trial court dismissed on the basis of the ecclesiastical abstention doctrine, concluding that the focus of the suit was on the Bishop's duties and whether he had violated them.

In a 2-1 decision, a majority of the Illinois Court of Appeals disagreed, holding that plaintiffs merely sought an interpretation of the contractual relationship between the two churches, and in particular whether the Transitional Regulations are still in effect. The majority concluded that the Transitional Regulations expired according to their terms in 1995, and so the Metroplitanante Diocese is no longer governed by them.  Judge Spence dissenting argued that the case is primarily a dispute over church polity which the court is barred from deciding under the ecclesiastical abstention doctrine.

Drug Paraphernalia Charges Burden Rastafarian Teen's Free Exercise Rights

In In the Matter of the Welfare of: J.J.M.A., (MN App., Sept. 23, 2013), a Minnesota appellate court held that a 15-year old Rastafarian boy's free exercise rights protected by the Minnesota Constitution were violated when he was adjudicated delinquent for possessing drug paraphernalia. The boy claimed that his religion requires him to carry his cannabis pipe.  The court found that the drug paraphernalia statute as applied burdens the boy's sincerely held religious beliefs, and the state failed to show that the statute as applied is the least restrictive means to accomplish a compelling state interest. [Thanks to Volokh Conspiracy for the lead.] 

Russian Court In Controversial Decision Bans Salafist Translation of Qur'an

In Russia last week, the Novorossiysk Oktyabrsky District Court ruled that a translation of the Qur'an into Russian by Azerbaijani philosopher Elmir Kuliyev should be banned under the federal law barring extremist materials, and that copies of it should be destroyed. The translation was published in Saudi Arabia in 2002.  According to Interfax and AP, Ravil Gainutdin, head of the Council of Muftis of Russia, strongly criticized the court's ruling in an open letter to President Vladimir Putin released Monday. He said the ruling violates freedom of religion protections in the Russian Constitution and international law, and called for the case to be retried with experts on Islam as witnesses. However, Farid Salman, the head of the Ulema Council of the All-Russian Muslim Board, has a different opinion. He agreed with the court's ruling, saying that Kuliyev's views reflect "the Salafi school, not the sect of Islam that is traditionally practiced by Russia's Muslims."

UPDATE: Forum 18 has more details on the decision and the mixed reaction to it among Russian Muslims.

New Google Website Simplifies Comparative Constitutional Analysis

Google announced yesterday that it has launched Constitute, a new website, created by the Comparative Constitutions Project that digitizes and makes searchable the world's 160 national constitutions.  Particularly relevant to Religion Clause readers, by browsing and clicking Constitute's topics menu, a user can easily pull up the relevant texts from the constitutions of 150 countries on freedom of religion. Mashable has more on the new website.

Ceremonial Renaming of Street Leads to Unusual Lawsuit Claiming Religious Liberty Violation

In August, in what the local press called "street naming season in Patterson," the Patterson, New Jersey City Council renamed a section of Van Houten Street on which the Jalalabad Jam-E-Masjid mosque is located as Alhaj Forman Ali Street to honor a local Muslim who was said to have played an instrumental role in the founding of the Islamic Foundation of New Jersey that built the mosque.  The seemingly innocuous resolution however has become extremely controversial in the Bangladeshi Muslim community of Patterson.

 According to yesterday's Patterson Press, leaders of the mosque say that they were not consulted on the ceremonial resolution, and that the renaming violates their religious beliefs.  They say that it is a fundamental principle of Islam that the mosque belongs to the entire community, and no one person or family may be honored above others in connection with their contribution to the mosque. They say that many members threaten to leave the mosque because it has been tainted as a place of worship by the naming of the street in front of it in honor of one person. They also claim that Councilman Mohammed Aktraruzzman who proposed the ceremonial resolution did so to repay his political supporters, and that the resolution exaggerates Ali's contributions to the Muslim community.  City Council is scheduled to vote today on whether to rescind the August resolution.  Ahead of that vote, on Sunday, mosque leaders filed a federal lawsuit claiming that the actions of city officials violated their free exercise rights.

Abercrombie Settles Two EEOC Lawsuits; Will Modify "Look Policy" To Accommodate Hijab

Clothing retailer Abercrombie & Fitch has settled two lawsuits brought by the EEOC challenging the company's "look policy" under which Abercrombie refused to permit Muslim employees to wear a hijab (head scarf).  AP and Religion News Service yesterday reported that the company will now permit employees to wear the hijab.  In the settlements, Abercrombie also will pay $48,000 in damages to Hani Khan who was fired when a new district manager visited the store and saw her head scarf. (See prior posting.)  It will pay $23,000 to Halla Banafa who was not hired after she wore a hijab to her job interview. (See prior posting.)

Egyptian Court Outlaws Muslim Brotherhood; Leaders Arrested; Assets Frozen

AP reports that in Egypt yesterday, the Cairo Court for Urgent Matters ordered the Muslim Brotherhood banned and its assets confiscated. The ruling covers the Brotherhood itself, as well as its affiliates and any institution receiving financial support from it.  The court ordered confiscation of all the organization's assets, and the creation of an independent committee to manage the group's funds until further orders from the court. In ordering the ban, the court said that the Brotherhood had used Islam "as a cover to activities that violate Islam and its rulings."  If the ban is upheld on appeal, authorities will be able to close down the Brotherhood's network of businesses, schools, hospitals and charities. For 85 years prior to 2011, the Brotherhood had been outlawed and operated under cover in Egypt. Separately, AP reports that on Tuesday authorities arrested senior leaders of the Brotherhood and the Cairo Criminal Court froze the assets of 14 Brotherhood leaders, including Mohammed Badie.

Ontario Legislature Rejects Quebec Limits On Religious Dress

As previously reported, last month Quebec's ruling Party Quebecois announced it would 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. Last Thursday, as reported by JTA, the Legislative Assembly of Ontario unanimously passed a resolution (full text at pg. 3) disagreeing with Quebec's move.  The resolution provides:

That, in the opinion of this House, the Government of Ontario should oppose any legislation that would restrict or prohibit people's freedom of expression and religion in public places and affirm that Ontario greatly values our diverse population and the social, cultural and economic contributions they make to help our society thrive.

Recent Articles of Interest

From SSRN:

• Paul Horwitz, Rethinking the Law, Not Abandoning It: A Comment on 'Overlapping Jurisdictions', (4 Faulkner Law Review 351 (2013)).
• Jordan J. Ballor, The Ecumenical Challenge of Catholicity, (Journal of Christian Legal Thought 3, No. 2 (Fall 2013)).
• Caroline Mala Corbin, Corporate Religious Liberty, (September 18, 2013).
• Frederick Mark Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion,(September 19, 2013).
• Dhrubajyoti Bhattacharya, At the Intersection of Law, Human Rights, and Religion, (Global Health Disputes and Disparities (Routledge, London: 2012)).
• Helen J. Knowles, Taking Justice Kennedy Seriously: Why Windsor Was Decided 'Quite Apart from Principles of Federalism', (September 1, 2013).
• Julien Mailland, The Blues Brothers and the American Constitutional Protection of Hate Speech: Teaching the Meaning of the First Amendment to Foreign Audiences, (Michigan State International Law Review, Vol. 21, No. 2, p. 451, 2013).
• Douglas NeJaime, Windsor's Right to Marry, (123 Yale Law Journal Online 219 (2013)).
• Jade Wong & Andreas Ortmann, Do Donors Care about the Price of Giving? A Review of the Evidence, with some Theory to Organize It, (UNSW Australian School of Business Research Paper No. 2013-22 (2013)). 

From SSRN-- European and Islamic Law:

• Rafael Palomino, Manual Breve de Derecho Eclesiástico del Estado (Spanish Law and Religion in a Nutshell), (January 9, 2013).
• Casey Jo Cooper, From the Watch Tower to the Acropolis: The Search for a Consistent Religious Freedom Standard in an Inconsistent World, (Emory International Law Review, Vol. 28, No. 1, 2014, Forthcoming).
• Monica Lugato, National Policy Towards Religious Associations within the Framework of European Law, (Il Diritto dell'Unione Europea, 3/2013, Forthcoming).
• Tobias Lock, An Additional Protective Layer: The Case of Religious Discrimination in the United Kingdom and Germany, (Edinburgh School of Law Research Paper No. 2013/32 (2013)).
• Hamid Harasani, The Role of Ijtihād in Progressing Islamic Law in Modern Times, (10 US-China Law Review 361).

From SmartCILP:

• Robert A. Destro,"You Have the Right to Remain Silent": Does the U.S. Constitution Require Public Affirmation of Same-Sex Marriage?, 27 BYU Journal of Public Law 397-440 (2013).
• Pascale Fournier & Pascal McDougall, False Jurisdictions? A Revisionist Take On Customary (Religious) Law in Germany, 48 Texas International Law Journal 435-463 (2013).

Rhode Island High School Gets New Secular Mural

In 2012, a Rhode Island federal district court in a high profile Establishment Clause case ordered Cranston (RI) High School to take down a prayer mural that had hung in the school's auditorium for 50 years.  (See prior posting.) Last week, to celebrate its 50th reunion, the Class of 1963 that had presented the original mural to the school replaced it with a new one that eliminates all religious references.  According to Friday's Providence Journal, the new mural contains seven lines to guide students, in the form of an acrostic with the first letter of each line spelling "Falcons". The Class also presented a new banner containing the school creed to replace the old one that had also hung in the auditorium.

UPDATE: The Cranston Patch (9/23) reports that there has been a delay in hanging the new mural because of typos discovered in it. Also it needs to be confirmed that they comply with the fire code.

Recent Prisoner Free Exercise Cases

In Davis v. Abercrombie, 2013 U.S. Dist. LEXIS 131525 (D HI, Sept. 13, 2013), a Hawaii federal district court dismissed the governor of Hawaii as a defendant in a suit complaining that plaintiffs were unable to observe their Native Hawaiian religion at two private prisons in Arizona in which Hawaii houses inmates. The court also dismissed as to all defendants a claim under the Hawaii constitution.

In Chernetsky v. Nevada, 2013 U.S. Dist. LEXIS 132804 (D NV, Sept. 17, 2013), a Nevada federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 132806, Aug. 14, 2013) and refused to permit a Wiccan inmate to file an amended complaint asserting constitutional claims that were previously abandoned on appeal.

In Muhammad v. Jenkins, 2013 U.S. Dist. LEXIS 132913 (SD NY, Sept. 13, 2013), a New York federal district court denied qualified immunity in a suit against a parole officer who allegedly for retaliatory reasons barred a Nation of Islam parolee from attending the mosque of his choice and refused to extend his curfew so he could attend evening classes there.  Claims against the parole board chairwoman were dismissed.

In Mendez v. Amato, 2013 U.S. Dist. LEXIS 132346 (ND NY, Sept. 17, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 132909, June 18, 2013) and dismissed a general claim by a former jail inmate that involuntary protective custody inmates were precluded from practicing religion when they were isolated from general population religious services.

In Penwell v. Holtgeerts, 2013 U.S. Dist. LEXIS 133011 (WD WA, Sept. 16, 2013), a Washington federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 133014, July 9, 2013), and dismissed a Christian inmate's complaint that regulations barring him from wearing his wedding rings in jail violated his free exercise and equal protection rights.

In Scott v. Ellis, 2013 U.S. Dist. LEXIS 133319 (D NJ, Sept. 18, 2013), a New Jersey federal district court dismissed an inmate's complaint that the warden ordered he not be allowed to participate in the Eid prayer.

In Walters v. Santa Clara Department of Corrections, 2013 U.S. Dist. LEXIS 134386 (ND CA, Sept. 19, 2013), a California federal district court dismissed a Muslim inmate's RLUIPA and free exercise complaints over the adequacy of his Halal diet and over a threat to end his Halal diet if he continued to trade food.

Mortgage Company Wins Preliminary Injunction In Contraceptive Coverage Challenge

In Armstrong v. Sebelius, (D CO, Sept. 17, 2013), a Colorado federal district court granted a preliminary injunction to Cherry Creek Mortgage Co. and its Evangelical Christian owners who claim their religious liberty is infringed by the Affordable Care Act contraceptive coverage mandate. Earlier this month, the 10th Circuit (full text of Sept. 5 opinion), citing its Hobby Lobby decision, reversed an earlier district court denial of a preliminary injunction and remanded the case to the district court. An unusual feature of this case is the fact that challengers only realized belatedly that their existing health insurance policy covered the contraceptives to which they object. (See prior posting.) In granting the preliminary injunction, the court said:

Here, the status quo is that Cherry Creek Mortgage has been and still is providing the coverage to which plaintiffs object. That being so, the preliminary injunction does not preserve the status quo, which is the stuff of most injunctions, but instead alters it. The answer is that the status quo would be Cherry Creek’s refusing to provide coverage for what they classify as abortifacients had they not unwittingly begun to provide the coverage and then run into an insurmountable roadblock when they directed their insurer to terminate the coverage.

Labor Department Recognizes Same-Sex Marriages Under ERISA

On Wednesday, the U.S. Department of Labor issued Technical Release No. 2013-04  providing guidance on applying the Supreme Court's Windsor decision to regulations under ERISA and the Internal Revenue Code relating to employee benefit plans. (News release.) The Technical Release provides in part:

the term "spouse" will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term "marriage" will be read to include a same-sex marriage that is legally recognized as a marriage under any state law....

The terms "spouse" and "marriage," however, do not include individuals in a formal relationship recognized by a state that is not denominated a marriage under state law, such as a domestic partnership or a civil union, regardless of whether the individuals who are in these relationships have the same rights and responsibilities as those individuals who are married under state law. The foregoing sentence applies to individuals who are in these relationships with an individual of the opposite sex or same sex.

[Thanks to Alliance Alert for the lead.]

Christian Universities Sue Challenging Contraceptive Coverage Mandate

Yet another lawsuit challenging the Affordable Care Act contraceptive coverage mandate has been filed, this time by four Christian universities-- Southern Nazarene, Oklahoma Wesleyan,  Oklahoma Baptist, and Mid-America Christian. The complaint (full text) in Southern Nazarene University v. Sebelius, (WD OK, filed 9/20/2013) contends that the final regulations (see prior posting) creating a compromise for religious non-profit organizations that object to furnishing contraceptive coverage is insufficient. The lawsuit contends that the final version of the regulations:

still conscripts the Universities into the government’s scheme, forcing them to obtain an insurer or third-party claims administrator and submit a form that specifically causes that insurer or third-party administrator to arrange payment for the objectionable drugs, so that such coverage will apply to the Universities’ own employees as a direct consequence of their employment with the Universities and of their participation in the health insurance benefits the Universities provide them.

Alliance Defending Freedom issued a press release yesterday announcing the filing of the lawsuit.

Church Denied Relief On Denial of Property Tax Exemption

In Church of the Isaiah 58 Project of Arizona, Inc. v. La Paz County, Arizona, (AZ App., Sept. 12, 2013), an Arizona state appellate court affirmed the state tax court's dismissal of a church's suit for injunctive and declaratory relief after the church was wrongly denied a property tax exemption.  The county tax assessor had claimed that the only acceptable evidence for granting an exemption was an Internal Revenue Service Letter of Determination. For a subsequent year, however, the county accepted a letter from the Arizona Department of Revenue instead. The court held that the state's anti-injunction statute bars injunctive relief because taxing authorities acted under a "semblance of authority."  Also, declaratory relief was properly denied because the church did not pay the assessed taxes before filing suit.

Cert. Petitions Filed In Two Contraceptive Coverage Mandate Cases

Scotus blog reports that on Thursday, petitions for certiorari to the U.S. Supreme Court were filed in two separate cases challenging the Affordable Care Act contraceptive coverage mandate. One petition (full text) seeks review of the Third Circuit's decision in Conestoga Wood Specialties Corp. v. Sebelius. In a 2-1 decision in the case, the majority held that "for-profit, secular corporations cannot engage in religious exercise," and the conscience rights of the owners of a corporation do not pass through to the corporation. (See prior posting.) The second petition (full text) seeks review of Tenth Circuit's decision in Sebelius v. Hobby Lobby Stores, Inc.  In the case in an en banc decision, a majority held that that corporations have free exercise rights and that the contraceptive coverage mandate substantially burdens those rights without a compelling governmental interest. (See prior posting.) [Thanks to James Oleske via Religionlaw for the lead.]

Judge Reverses Magistrate,Says Child Can Be Named "Messiah"

In Newport, Tennessee yesterday, a Cocke County Chancery Court judge reversed a widely publicized decision handed down last month by a Child Support Magistrate who ruled that parents could not name their 7-month old child "Messiah". Magistrate Lu Ann Ballew said: "The word Messiah is a title and it's a title that has only been earned by one person and that one person is Jesus Christ." (See prior posting.) According to USA Today:

Chancellor Telford E. Forgety Jr. overturned Ballew's decision, ruling that the lower court acted unconstitutionally. He said the lower court violated the establishment clause of the U.S. Constitution, and added that the court's purpose was to determine the last name of the child, not his first name.

[Thanks to Scott Mange for the lead.] 

Can Navy Yard Shooter's Interest In Buddhism Shed Light On His Mental State?

In the aftermath of yesterday's mass shooting at the Washington Navy Yard, the Washington Post explores the question of whether shooter Aaron Alexis' interest in Buddhism can help in understanding Alexis' mental state:

Buddhism can seem particularly appealing to "mentally unbalanced people seeking to right the ship of their lives, to self-medicate, to curb their impulses, or to give them a firmer grip on reality," Clark Strand, a contributing editor to the Buddhist publication Tricycle magazine and a former Zen monk, said in an interview.... 

[Buddhist blogger Justin] Whitaker posed this: Are there particular issues for people who delve deeply into meditation, but disconnected from Buddhism’s history and theology?

Religious Freedom Agency Loses Attempt To Dismiss Former Employee's Discrimination Suit

In Ghori-Ahmad v. U.S. Commission on International Religious Freedom, (D DC, Sept. 17, 2013), the DC federal district court refused to dismiss claims of religious and national origin discrimination, and of retaliation, bought by a former employee of the U.S. Commission on International Religious Freedom.  Ghori-Ahmad, a lawyer and expert on South Asian affairs, is a Muslim of Indian descent who in 2009 was originally offered a full-time job with USCIRF, but then had the offer rescinded and ended up with only a 90-day position that the agency refused to extend. Her lawsuit claims that her original offer was withdrawn, and her temporary position was not extended, because of anti-Muslim bias of two of the USCIRF commissioners. (See prior posting.)  The court first rejected USCIRF's claim that as a matter of law Ghori-Ahmad was an independent contractor with the agency, not an employee covered by the anti-discrimination provisions of the Congressional Accountability Act when her position was not extended. It held that factual issues remain as to her status.  The court also rejected USCIRF's claim that no materially adverse action had been taken against Ghori-Ahmad. The court, however, did dismiss plaintiff's detrimental reliance claim, refusing to exercise supplemental jurisdiction to hear it.

Yemeni Court Imposes Sharia Punishment of Amputation; Rights Group Objects

AFP reports that for the first time in over ten years, a court in Yemen has sentenced a defendant convicted of robbery to the punishment of amputation, as prescribed by shariah law.  Earlier this week, a court in Sanaa ordered amputation of the right hand and left foot of defendant who attacked his victim and robbed him of cash he was carrying in a vehicle belonging to a money exchange firm. Amnesty International has called on Yemen to commute the sentence, saying it amounts to torture in violation of international law.

6th Circuit Rejects Closely-Held Business Challenge To Contraceptive Mandate

In Autocam Corp. v. Sebelius, (6th Cir., Sept. 17, 2013), the 6th Circuit Court of Appeals denied  a preliminary injunction in an Affordable Care Act contraceptive coverage mandate challenge.  The suit was brought by two related closely-held businesses (a corporation and an LLC) and by their Catholic owners.  The shareholder-owners describe the companies as "the business form through which [they] endeavor to live their vocation as Christians in the world." The court held, however, that the coverage mandate falls on the corporations, not their owners, so owners cannot bring a free exercise claim in their individual capacities. As to the claim by the businesses themselves, the court held that a for-profit secular corporation "is not a 'person' capable of 'religious exercise' as intended by RFRA." Christian Science Monitor reports on the decision.

Bahrain Government Sues To Dissolve Islamic Scholars' Council

GulfNews reports that yesterday Bahrain's Ministry of Justice, Islamic Affairs and Endowments filed suit to dissolve the Islamic Scholars’ Council, seeking to shut it down and liquidate its financial assets.  The government says that the Scholars' Council has refused to become a member of the new Supreme Council for Islamic Affairs and instead is operating illegally as a cover for political activity.

British Judge Says Muslim Woman Must Remove Full-Face Veil For Her Testimony, But With Accommodations

In a widely followed case in Britain, a trial court judge who allowed a Muslim woman charged with witness intimidation to keep her face fully covered by her niqab at her arraignment (see prior posting) has now ruled that she must uncover her face when giving evidence during her trial.  The Guardian reported yesterday that under a compromise arrangement, the woman will be able to testify behind a screen or by live video link where only the judge, counsel and jurors can see her face, but court spectators will not. This will allow jurors to assess her demeanor.  The court also ordered that there be no artist's sketch of the woman with her face uncovered, and ruled that the woman, who will be identified only by her initial, can keep her face covered during the rest of the trial.

Complex Settlement Reached In Maryland Church Zoning Dispute

The Gaithersburg (MD) Gazette reports that a complicated settlement has been reached in Bethel World Outreach Ministries of Montgomery County v. Montgomery County Council. The suit, currently on remand from the 4th Circuit (see prior posting), involves a zoning denial that barred a congregation from building an 800-seat church in an area zoned as an agricultural preserve.  Under the settlement, the county will pay the church $1.25 million which it will use in part to purchase an agricultural easement for the property it sought to rezone.  It will still be allowed to subdivide the land into 4 residential lots. Then it will develop property that it has located elsewhere in the county to build a 1,200-seat church.  The county will make water and sewer changes to accommodate this, and the church will consider shuttle service for overflow parking as well as the purchase of additional land for use as a school and for services.

Court Upholds Zoning Conditions Imposed On Residential Synagogue

In a decision handed down last month, a New Jersey state trial court upheld 14 challenged conditions imposed by the Teaneck Board of Adjustment on use of a house as a residential Orthodox synagogue in an area zoned for single family dwellings.  For example, the Board required that there be no outdoor celebratory activity.  In 554 Queen Anne Road, Inc. v. Teaneck Board of Adjustment, (NJ Super. Ct., Aug. 23, 2013), the court held:

Each of the conditions ... bears a rational and reasonable relationship to the foreseen consequences of granting the requested variances.

(See prior related posting.) [Thanks to Thomas Rockland for the lead.]

Islamic Center Sues Illinois City Over Zoning Change Denial

A federal court lawsuit was filed yesterday by an Islamic Center against Des Plaines, Illinois, alleging that the city and members of its city council violated the 1st and 14th Amendments and RLUIPA when they denied zoning changes so land and buildings the Center wanted to acquire could be used for religious worship and education.  The complaint (full text) in American Islamic Center v. City of Des Plaines, (D IL, filed 9/16/2013), alleges that the Islamic Center, most of whose 160 members are Bosnian Muslim refugees, obtained Plan Commission approval for its proposal for use of the now-vacant property, but that city council denied the changes by a vote of 5-3. The Daily Herald reports on the lawsuit.

TSA Says Passengers May Carry Sukkot Items Through Security Checkpoints

The Jewish holiday of Sukkot begins Wednesday night.  Last week, the Transportation Security Administration issued an advisory (full text) stating:

TSA’s screening procedures do not prohibit the carrying of the four plants used during Sukkot - a palm branch, myrtle twigs, willow twigs, and a citron - in airports, through or security checkpoints, or on airplanes. These plants or agricultural items are not on TSA’s Prohibited Items List. However, all persons and property will undergo security screening at the checkpoint.

Recent Articles of Interest

From SSRN:

• Zoe Robinson, What is a 'Religious Institution'?, (Boston College Law Review, Vol. 55, 2014, Forthcoming).
• Ethan Zadoff, Zadoff on Kwall: A Historians Critique, (Cardozo Law Review, Forthcoming).
• Jennifer Anglim Kreder, Lessons for Religious Liberty Litigation from Kentucky, (19 Wash. & Lee J. of Civ. Rts. & Soc. Justice, 2013).
• Shiva Falsafi, Religion, Women, and the Holy Grail of Legal Pluralism, (Cardozo Law Review, Forthcoming).
• Peter O'Brien, Islam and the Politics of Secularism in Europe, (APSA 2013 Annual Meeting Paper).
• Jeremy M. Christiansen, 'The Word Person...Includes Corporations': Why the Religious Freedom Restoration Act Protects Both For- and Nonprofit Corporations, (Utah Law Review, Forthcoming).

From elsewhere:

• Patrick E. Tolan, Jr., Compromising the Safety Net: How Limiting Tax Deductions for High-Income Donors Could Undermine Charitable Organizations, 46 Suffolk U.L. Rev. 329 (2013).