9th Circuit Hears Oral Arguments By Proposition 8 Backers For Disclosure Exemption

On Friday, the U.S.9th Circuit Court of Appeals heard oral arguments in ProtectMarriage.com - Yes on 8 v. Bowen. (Audio of full arguments.) As reported by the San Francisco Chronicle, at issue is the attempt by backers of California's 2008 Proposition 8 to avoid California's required filing of the names of contributors of $100 or more to the campaign to pass the now-overturned Prop 8 ban on same-sex marriage. Appellants say that backers have already suffered vandalism, hate mail, boycotts and death threats. While the names of contributors have already been released by state court order, appellants want the federal court to order the state to remove the names from its website, seal its files, and grant a filing exemption for future elections.

Recent Prisoner Free Exercise Cases

In Smith v. City of New York, 2013 U.S. Dist. LEXIS 144122 (SD NY, Sept. 26, 2013), eight Rikers Island inmates sued alleging that unlike other religions, Muslims were not given dedicated prayer space, religious materials or adequate Halal meals.  One plaintiff was dismissed because of a prior settlement; and 4 more were dismissed for failing to exhaust administrative remedies.  An exhaustion hearing was scheduled for the other three.

In Brown v. Fischer, 2013 U.S. Dist. LEXIS 145586 (WD NY, Oct. 8, 2013), a New York federal district court dismissed a Jewish inmate's claim that his free exercise rights were infringed when one of his kosher meals contained a package of what he believed was non-kosher salami.

In Israel, Women of the Wall Leaders Split On Concessions

In Israel, there has been a policy split among leaders of Women of the Wall, the group that has been pressing for equal rights for women to pray at the Western Wall wearing prayer shawls and reading from the Torah. Haaretz reported yesterday that last Sunday the WOW board, on the recommendation of the group's chair Anat Hoffman, voted to move their religious services from the women's section of the Western Wall Plaza to a new egalitarian section set up by the government, subject to a number of conditions. Among the conditions are that there be one entrance to a contiguous area encompassing all three sections of the Plaza, there be equal funding, and that the egalitarian space be run by a board that includes equal representation for women.  Yesterday a dozen long-time WOW activists-- most now in the United States-- released a letter taking issue with the decision of the WOW board.  The dissenters insist that the group pursue its original goal of equal rights to pray in the original women's section at the Wall.  Some of the dissenters are Orthodox and object to praying in the same space as men.

Vatican Recalls Medals After Embarrassing Misspelling Is Discovered

The Vatican on Tuesday abruptly recalled more than 6000 medals it had commissioned to commemorate the pontificate of Pope Francis.  As reported by the Huffington Post, just as the medals produced by the Italian Mint went on sale it was discovered that the name of Jesus had been misspelled in the Latin quotation around the edge of the reverse side.  The coin read "Vidit ergo Lesus..." instead of "Vidit ergo Jesus...." Four of the coins, however, were sold before they were recalled. Those are now valuable collectors' items.

More Arrests In Forced Jewish Divorce Kidnappings

In New Jersey, a superseding criminal complaint (full text) was issued yesterday in United States v. Epstein,(D NJ, Oct.10, 2013), adding 6 defendants to the 4 previously named (see prior posting) in a federal kidnapping case against men who allegedly operated an arrangement under which recalcitrant Orthodox Jewish husbands were seized and physically threatened or injured to force them to grant a religious divorce (get) to their wives who had already obtained a civil divorce decree. The 6 additional defendants are alleged to be the "'tough guys' and/or witnesses who participate in the actual kidnapping and assault of the recalcitrant husbands...."  The Newark Star-Ledger reports:

Most of those arrested were taken into custody at a Middlesex County warehouse Wednesday night — some wearing Halloween masks and one in a Metallica T-shirt — as they waited to grab a supposed victim....

U.S. Attorney Paul Fishman said at least one of those charged admitted he had participated in similar kidnappings in the past and investigators believe there may have been as many as several dozen assaults conducted by the same group over a period of many years.

Failed Messiah reports that more arrests are likely to follow "as dominoes."  Meanwhile, Haaretz yesterday carried an interesting op-ed titled Rabbis who beat men into divorcing their wives: villains or heroes?. [Thanks to Steven H. Sholk for the lead.]

Brazil Launches Campaign To Promote Religious Tolerance

Religion News Service reported yesterday on a new diversity campaign launched by the government of Brazil designed to combat religious discrimination by public officials and religious abuse by individuals. Intolerance has been directed particularly at adherents of Candomble and the closely related Umbanda African religious faiths. In the highest profile incident a year ago,  Marcos Antonio Marcelino, a practitioner of Candomble, was shot and killed by his neighbor after police ignored complaints from him and his wife about religious abuse.  The rise in incidents, to 109 last year, coincides with changing religious demographics in Brazil. The number of Catholics is declining while the number of evangelicals is increasing, with some neo-Pentecostal churches preaching hate of African religions.

New Jersey Judge Refuses Stay Pending Appeal of Same-Sex Marriage Ruling

A New Jersey trial court judge yesterday refused to grant a stay pending appeal of her decision that beginning Oct. 21,  New Jersey must extend the right to marry to same-sex couples. (See prior posting.)  According to the New York Times, in her decision Judge Mary C. Jacobson wrote that the state had not shown that is is likely to succeed on appeal, and a stay would delay the ability of same-sex couples to become eligible for federal tax and retirement benefits, spousal coverage under Medicare and the ability to sponsor a non-citizen spouse for residency.  The state immediately appealed the denial of a stay.

UPDATE:  The New Jersey Supreme Court on Oct. 11 issued an order granting a direct expedited appeal of the decision, and also taking jurisdiction over the motion to stay pending appeal. [Thanks to Volokh Conspiracy for the lead,]

Cert.Filed In German Home Schooling Asylum Case

Yesterday the Home School Legal Defense Association announced that it had filed a petition for certiorari with the U.S Supreme Court in Romeike v. Holder.  In the case, the 6th Circuit  denied asylum to a German family that claimed persecution because of Germany's ban on home schooling which the family favored largely for religious reasons.. (See prior posting.) Charisma News reports on developments.

Feds Charge 2 Orthodox Rabbis, 2 Others, In Kidnap and Torture Plans Against Husbands Who Refuse Wives A Religious Divorce

Two Orthodox rabbis and two other men were arrested last night in New York and New Jersey on federal charges (full text of criminal complaint) of plotting to kidnap and torture a man to force him to grant his wife a Jewish divorce (get).  AP, the New York Daily News and the Newark Star-Ledger all have stories on the arrest of 68-year old Brooklyn Rabbi Mendel Epstein and Rabbi Martin Wolmark  who allegedly charged women tens of thousands of dollars to use violence against their recalcitrant husbands who refuse to grant a Jewish divorce after a civil divorce has been obtained.  An Orthodox woman cannot remarry in a religious ceremony without a get.

Police also arrested two other men-- Ariel Potash whose role was to act as the wife's agent to accept the get in the religious divorce ceremony, and a man identified only as "Yaakov" who was apparently one of the "toughs."  As many as 6 other people may also be charged in the case which grew out of a similar 2011 case brought against Rabbi David Wax and his wife. (See prior posting.) Wax is now apparently cooperating with authorities. Last night's arrests came after two undercover agents-- one posing as a wife and the other as her brother-- were charged $10,000 for approval by a rabbinical court of a kidnapping and $50,000 to $60,000 to pay those who roughed up the purported husband.  A rabbinical court in Monsey, New York, presided over by Rabbi Wolmark, actually approved the kidnapping plan last week by issuing a ruling (psak din) after the purported husband failed to respond to a contempt order (seruv) issued by the religious court. [Thanks to Failed Messiah blog for the link to the complaint and to Scott Mange for the lead.]

UN Committee Says France Violated Sikh's Rights By Demanding Turban Be Removed For Passport Photo

The United Nations Human Rights Committee, in a decision dated Sept. 26 and released last week has ruled (full text of decision in French) that France violated the religious freedom of a Sikh man by requiring that he remove his turban for his passport photo. The Committee monitors compliance with the International Covenant on Civil and Political Rights. United Sikhs and the Wall Street Journal report on the decision.

Presbyterian Church Property Dispute Remanded To State Court

In Highland Park Presbyterian Church, Inc. v. Grace Presbytery, Inc., (ND TX, Oct 7, 2013), a Texas federal district court remanded to state court a church property ownership suit that had been removed to federal court.  At issue is whether $30 million of real property of the Highland Park Presbyterian Church was held in trust for the Presbyterian Church (USA). Highland Park is in the process of breaking away from PC(USA) because of theological differences. Removal to federal court is permitted only if the complaint states a claim under the U.S. Constitution or federal law. Here the claim is merely that the U.S. Constitution may later be violated as the case moves forward if the state court exercises its authority too broadly. Christian Post reports on the decision and provides more background.

Mennonite Art Gallery Owners Sue State Civil Rights Commission Over Hosting Same-Sex Marriages

A lawsuit was filed this week in an Iowa state trial court by a Mennonite couple who are seeking to prevent the Iowa Civil Rights Commission from moving ahead on a complaint that the couple refused to host a same-sex wedding ceremony in their art gallery in violation of the ban on discrimination in public accommodations.  The complaint (full text) in Odgaard v. Iowa Civil Rights Commission, (IA Dist.Ct., filed 10/7/2013) explains that the art gallery is housed in a former Lutheran Church building.  The primary revenue source for the Odegaard's gallery (a sole proprietorship) is planning, facilitating and hosting wedding ceremonies in the former sanctuary of the church building which still retains its original stained glass windows. The Odegaards allege that their "religious beliefs forbid them from planning, facilitating, or hosting wedding ceremonies that contradict their religious understanding of marriage."  In addition to alleging that requiring them to either host same-sex weddings or stop hosting all weddings violates religious exercise and free speech provisions of the state and U.S. constitutions, plaintiffs also rely on a provision in the state Civil Rights Act providing that the Act "shall not be construed to allow marriage between persons of the same sex...." Becket Fund announced the filing of the lawsuit, and Christian Post reports further on the suit.

Muslim Man Gets Default Judgment In Employment Accommodation Case

The Seattle Times reports that on Sept. 27, a Washington federal district court judge issued a default judgment in an employment discrimination lawsuit against American Patriot Security.  Muslim security guard Abdulkadir Omar, a resident of Sea Tac, Washington, was fired for refusing to shave his close-cropped beard that he wore for religious reasons. The court awarded over $66,000 in back salary, attorney fees and court costs after the company failed to raise a defense to the charges of failure to accommodate plaintiff's religious beliefs.

Turkey Lifts Ban On Wearing of Hijab In Public Institutions

Euronews reported yesterday that Turkey has lifted its 90-year old ban on wearing of Islamic headscarves in the workplace and in universities. The ban on civil servants wearing overt symbols of religious affiliation was originally put in place in 1925 by Mustafa Ataturk who founded Turkey as a secular republic.  In making the change, Prime Minister Recep Tayyip Erdogan said that the ban on headscarves in public institutions violated freedom of religion and conscience. However his critics see this as part of his Islamic agenda. Other changes also adopted give greater freedom to Kurds, lifting the ban on their using letters in their minority languages that are not part of the Turkish alphabet.

British Scouts Adopt Alternative Promise For Nonbelievers Omitting Reference To God

NBC News reported yesterday that in Britain, the British Scouting Association will make available an alternative Scout Promise that omits reference to God or faith.  Beginning next January, it can be used by scouts who do not profess a religious faith. Instead of reading: "On my honor, I promise that I will do my best, to do my duty to God and to the Queen...", the alternative Promise reads: "I promise that I will do my best to uphold our Scout values...." It joins alternative versions that have been available for nearly 50 years for Muslims, Hindus, Buddhists, and non-UK citizens. The British Girl Guides have already totally dropped phrase "to love my God" from their promise recited by everyone.

Pennsylvania Dioceses File New Challenges To Contraceptive Coverage Mandate

According to AP and the Pittsburgh Post Gazette, the Catholic Diocese of Pittsburgh along with its affiliated Catholic Charities have joined the list of religious non-profits that have refiled challenges to the Affordable Care Act contraceptive coverage mandate now that the final regulations are in place. The complaint filed yesterday contends that the accommodation provided for in the final regulations still requires the religious organizations to subsidize contraceptive services, including contraceptives seen as abortifacients. The diocese's earlier challenge was dismissed last November on ripeness and standing grounds. (See prior posting.)

A similar suit was also filed yesterday by the Catholic Diocese of Erie (PA), according to the Erie Times-News. (See prior posting.)

First Amendment Does Not Protect Diocese From Discovery Request

In Herx v.Diocese of Fort Wayne- South Bend, Inc., (ND IN, Oct. 7, 2013), an Indiana federal district court rejected a Catholic diocese's First Amendment defenses to a discovery request. Plaintiff is a former Catholic elementary school teacher whose contract was not renewed after the school learned that she had become pregnant through in vitro fertilization. The school claimed she had violated the "morals clause" in her teaching contract. In discovery, plaintiff sought information on how the morals clause had been applied to other teachers. The court rejected the diocese's argument that this is an improper inquiry into religiously based matters of a religious employer in violation of the Establishment and Free Exercise Clauses. It also rejected the argument that Title VII and the ADA exempt it from these discovery requests.

Justice Scalia Talks About His Religious Views and Much More

The Oct. 6 New York Magazine features a fascinating interview with Justice Antonin Scalia, including this excerpt about his religious beliefs that has received much attention: (interviewer's questions in bold):

Whatever you think of the opinion, Justice ­Kennedy is now the Thurgood Marshall of gay rights. [Nods.]

I don’t know how, by your lights, that’s going to be regarded in 50 years. I don’t know either. And, frankly, I don’t care. Maybe the world is spinning toward a wider acceptance of homosexual rights, and here’s Scalia, standing athwart it. At least standing athwart it as a constitutional entitlement. But I have never been custodian of my legacy. When I’m dead and gone, I’ll either be sublimely happy or terribly unhappy.

You believe in heaven and hell? Oh, of course I do. Don’t you believe in heaven and hell?

No. Oh, my.

Does that mean I’m not going? [Laughing.] Unfortunately not!

Wait, to heaven or hell? It doesn’t mean you’re not going to hell, just because you don’t believe in it. That’s Catholic doctrine! Everyone is going one place or the other.

But you don’t have to be a Catholic to get into heaven? Or believe in it? Of course not!

Oh. So you don’t know where I’m going. Thank God. I don’t know where you’re going. I don’t even know whether Judas Iscariot is in hell. I mean, that’s what the pope meant when he said, “Who am I to judge?” He may have recanted and had severe penance just before he died. Who knows?

The entire interview is worth a read.

Appeals Court Says Guardian For Medical Decisions Should Have Been Appointed For Amish Girl

In In Re: Guardianship of S.H., (OH Ct. App., Oct. 1, 2013), an Ohio appeals court held that the probate court abused its discretion in refusing to appoint a guardian for the purposes of making medical decisions for an Amish girl suffering from leukemia.  The parents, at the girl's request, stopped chemotherapy treatment. The court, however, concluded that treatment would be in the girl's best interest, saying:

While we have no doubt that, the parents are acting in accordance with their principles, beliefs and honest convictions and that their goal may be a laudable one, it does not nullify or supersede the right of the state and the probate court to protect the health and well-being of a child.

The court held that under Ohio law, a finding of parental unsuitability is not necessarily required before appointing a guardian. AP reports on the decision. (See prior related posting.)

Cert. Denials of Interest Today

As is typical of the first day of the Supreme Court's new term, today the court issued a nearly 80-page list of cases in which it has denied certiorari. (Order list.)  Among the cases that the Court has refused to review are:

First Korean Church of New York, Inc. v. Cheltenham Township Zoning Hearing Board (Docket No. 12-1399).  In the case a Pennsylvania federal district court granted summary judgment to defendants in a lawsuit by First Korean Church that had been prevented by township zoning ordinances from using a 33.8 acre property for a church and seminary.(See prior posting.)The Third Circuit affirmed in a 3-paragraph opinion.

Dixon v. University of Toledo (Docket No. 12-1402). In the case the Sixth Circuit Court of Appeals held that the University of Toledo (OH) did not violate the 1st Amendment free speech rights of its Associate Vice President for Human Resources when it terminated her because of an op-ed column she wrote expressing her views about homosexuality. (See prior posting.)

A.M.v. Taconic Hills Central School (Docket No. 12-1479). In the case the Second Circuit Court of Appeals rejected a free speech claim by a middle school student, the co-president of student council, who was not permitted to include a religious blessing at the end of her remarks at the school's Moving-Up Ceremony. (See prior posting.)

UPDATE: The Supreme Court also denied cert. in two other cases of interest:

Big Sky Colony, Inc. v. Montana Department of Labor and Industry, (Docket No. 12-1191).  In the case, the Montana Supreme Court upheld amendments to the state's workers compensation law that bring Hutterite Colonies within the definition of those covered when their members perform agricultural, manufacturing or construction services for in-kind services rather than wages.(See prior posting.) [Thanks to Luke Goodrich for the lead.]

Church of Scietology v. DeCrescenzo, (Docket No. 12-1495).  As described in the cert. petititon (2013 WL 3225967) the trial court, following California precedent, limited the clergy-penitent privilege to communications made to a single minister, and thus refused to find the privilege applicable to communications made in the course of the Scientology practice of "auditing". The state appellate and supreme courts summarily denied review.

Recent Articles of Interest

From SSRN:

• Louis J. Sirico, Benjamin Franklin, Prayer, and the Constitutional Convention: History as Narrative, (Legal Communication & Rhetoric: JALWD, Vol. 10, 2013).
• Jeff Redding, Querying Edith Windsor, Querying Equality, (Villanova Law Review, Vol. 59, 2013).
• Avishalom Westreich & Pinhas Shifman, A Civil Legal Framework for Marriage and Divorce in Israel, (The Metzilah Center for Zionist, Jewish, Liberal and Humanist Thought, Ruth Gavison, ed, May 2013).
• Tamir Moustafa, Judging in God's Name: State Power, Secularism, and the Politics of Islamic Law in Malaysia, (Oxford Journal of Law and Religion, Vol. 2, (2013)).
• Audrey Macklin, Multiculturalism Meets Privatisation: The Case of Faith-Based Arbitration, (International Journal of Law in Context, 9,3 pp. 1-23 (2013)).
• Bernard M. Levinson & Jeffrey Stackert, Between the Covenant Code and Esarhaddon's Succession Treaty: Deuteronomy 13 and the Composition of Deuteronomy, (Journal of Ancient Judaism 3 (2012): 123-140).
• Claudia E. Haupt, Active Symbols, (55 Boston College Law Review (forthcoming 2014)).
• Hamid Harasani, Islamic Law of Wills: An Overview, (October 1, 2012).
• William Baude, Interstate Recognition of Same-Sex Marriage after Windsor, NYU Journal of Law & Liberty, Vol. 8, 2013, Forthcoming. 

From SmartCILP:

• Hanna Lerner, The Political Infeasibility of "Thin" Constitutions: Lessons from 2003-2006 Israeli Constitutional Debates, [Abstract], 22 Journal of Transnational Law &Policy 85-121 (2012-2013).
• Bashar H. Malkawi, Shari'ah Board in the Governance Structure of Islamic Financial Institutions, [Abstract], 61 American Journal of Comparative Law 539-577 (2013).
• Daniel W. Morton-Bentley, Seeing Isn't Believing: Ahlquist v. City of Cranston and the Constitutionality of Religious Displays under the Establishment Clause, [Abstract], 18 Roger Williams University Law Review 172-199 (2013).
• Symposium on Overlapping Jurisdictions: What Role for Conscience and Religion?, Foreword by Michael J. DeBoer; articles by John Witte, Jr., Joel A. Nichols, Robert L. McFarland and Elizabeth Sepper; responses by Paul Horwitz, Jonathan F. Will and Jeffrey B. Hammond. 4 Faulkner Law Review 299-444 (2013).

In Israel, Ovadia Yosef, Spiriutal Leader of Shas Party, Dies

In Israel, Rabbi Ovadia Yosef, spiritual leader of the important Shas Party died today at age 93. Shas is an Orthodox religious political party that particularly represents interests of Sephardic Jews. The New York Times and Jerusalem Post both report at length on reactions to Yosef's death and on his career.

Senate Chaplain Warns Senators In His Invocations

The New York Times in a front page article today reviews the admonitions that Senate Chaplain Barry C, Black has delivered in his invocations in recent days. Foe example, Black, a Seventh Day Adventist and former Navy rear admiral, one day prayed: "Save us from the madness."  Another day he urged in his opening prayer: "May they remember that all that is necessary for unintended catastrophic consequences is for good people to do nothing."

Annual Red Mass Held Yesterday In D.C.-- 5 Justices Attend

Yesterday, the annual Red Mass sponsored by the John Carroll Society was held at the Cathedral of St. Matthew the Apostle in Washington, D.C.  Blog of the Legal Times reports that 5 Supreme Court Justices attended-- Chief Justice Roberts, and Justices Scalia, Thomas, Breyer and Kagan. The Mass, always held on the Sunday before the beginning of the Supreme Court's term, is designed to bless the Supreme Court as well as other judges and government officials. The White House Chief of Staff, the Solicitor General and several other federal court judges also attended.

Nebraska High Court: 16 Year Old Too Immature To Consent To Abortion, Despite Fear of Religious Foster Parents' Reaction

In In re Petition of Anonymous 5, (NE Sup. Ct., Oct. 4, 2013), the Nebraska Supreme Court in a 5-2 decision ruled that a 16 year-old girl living in foster care had not established that she is sufficiently mature and well informed about abortion to have the procedure without the consent of a guardian.  The girl had testified that her foster parents have strong religious beliefs about abortion. She feared that if they learned of her pregnancy, she might lose her foster placement. She also believed that they would at least take it out on her and tell her siblings that she is a bad person. The trial court had held that one of the foster parents needs to give consent, and their religious beliefs did not mean they would not act in the girl's best interest. The Supreme Court majority concluded it could not reach the issue of who should give consent, while the dissenters argued that the girl is in legal limbo because her legal guardian is the state Department of Health and Human Services whose regulations bar either consenting or refusing to consent to an abortion. Raw Story reports on the decision.

Judge Admonished For Publicly Refusing To Perform Same-Sex Marriages

In In re the Honorable Gary R. Tabor, (WA Commn. on Judicial Conduct, Oct. 4, 2013), the Washington state Commission on Judicial Conduct entered a Stipulation, Agreement and Order of Admonishment against a state trial court judge who publicly stated that he would not perform same-sex marriages in his judicial capacity, while continuing to perform opposite-sex marriages.The Agreement provides in part:

Rules 1.1, .1.2 and 3 .1 (C) of the Code [of Judicial Conduct] oblige judges to avoid impropriety and the appearance of impropriety by acting at all times in a manner that promotes public confidence in their independence, integrity and impartiality.

Washington State's law against discrimination, RCW 49.60, sets forth classes of people protected by law against discrimination. Sexual orientation is included in the classes of people protected. Respondent accepts the Commission's determination that, by announcing he would not solemnize same-sex marriages due to his philosophical and religious concerns while continuing to solemnize opposite-sex marriages, he appeared to express a discriminatory intent against a statutorily protected class of people thereby undermining public confidence in his impartiality.

When initially contacted by the Judicial Conduct Commission, Judge Tabor stopped performing all marriages in his judicial capacity. The Olympian reports on the Commission's action.

Group Seeks Records of Contacts Between DOD and Mikey Weinstein

Judicial Watch, a conservative advocacy group, announced last month that it has filed a Freedom of Information Act lawsuit seeking all records of communications between the Department of Defense and Mikey Weinstein, founder of the Military Religious Freedom Foundation.  Weinstein has been active in opposing Christian proselytization in the military. (See prior posting.) Explaining the lawsuit, Judicial Watch President Tom Finton said:

The American people deserve to know the full truth about just how close the relationship is between anti-Christian activist Mikey Weinstein and the Obama Department of Defense. There is increasing intolerance for the First Amendment rights of traditional Christians in today's military.

Wisconsin District's Schools Scuttle Holiday Concerts

According to yesterday's Sheboygan Press, elementary schools in Wausau, Wisconsin will no longer hold holiday concerts, and the elite extra-curricular Master Singers choir group at Wausau West High School will be temporarily disbanded.  The moves came after the school board's attorney developed new guidelines for December concerts.  They call for five secular songs for each religious one if the concert contains holiday music. The district also created a committee of 4 teachers to approve all holiday concert selections.  The committee did not have time to get to the Master Singers proposed selections at its Sept. 26 meeting, leaving the choir insufficient time to prepare.

UPDATE: The Wausau Daily Herald reports that after a strong negative reaction to the board's actions, at an Oct. 10 meeting the board voted to place the decision on whether to hold winter concerts back in the hands of school principals, and revert to the former policy of having principals review song lists for each concert. However the board will update the music policy for next year with public input. [Thanks to Blog From the Capital for the lead.]

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.