Recent Prisoner Free Exercise Cases

In Sanchez v. Earls, (8th Cir., Oct. 16, 2013), the 8th Circuit dismissed an inmate's complaint that he was not allowed to possess his crucifix and chain because it was valued at over $100.

In Nance v. Miser, 2013 U.S. Dist. LEXIS 144714 (D AZ, Oct. 7, 2013), an Arizona federal district court held that a Muslim inmate can move forward on his claim that he was denied a Halal diet with meat, and on his claim for damages for delay in granting him a shaving waiver.

In Ind v. Colorado Department of Corrections, 2013 U.S. Dist. LEXIS 146717 (D CO, Oct. 10, 2013), a Colorado federal district court allowed an inmate who is a member of the Christian Separatist faith to move ahead with his claim that his religious freedom is infringed by restrictions on books, magazines and correspondence courses for prisoners in administrative segregation, and with his claim that he was classified as a member of a security threat group because of his religion.

In Shaw v. Hall, 2013 U.S. Dist. LEXIS 145860  (MD GA, Oct. 9, 2013), a Georgia federal district court permitted a Muslim inmate to amend his complaint to pursue claims arising after the suit was originally filed involving denial of meals and medication before daylight during Ramadan. The court rejected defendants' claim that these cannot be raised because administrative remedies were not exhausted before the original filing of the lawsuit.

In Finn v. Medlin, 2013 U.S. Dist. LEXIS 145361 (SD GA, Oct. 8, 2013), a Georgia federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 145912, July 25, 2013) and dismissed an inmate's challenge to a rule barring insulin dependent diabetics from living in the faith-based dorm.

In LaPlante v. Lovelace, 2013 U.S. Dist. LEXIS 145870 (WD MI, Oct. 9, 2013), a Michigan federal district court allowed an inmate to move ahead with a claim that his free exercise rights were infringed when he was not allowed to attend church services because of a no-contact order between him and another inmate, and a challenge to the jail's rule against receiving books, including a Bible, through the mail.

In Ford v. Bureau of Prisons, 2013 U.S. Dist. LEXIS 147524 (MD PA, Oct. 11, 2013), a Pennsylvania federal district court dismissed a complaint by a Nation of Islam inmate that no break fast meals were provided on certain NOI holidays and that other impediments were placed in the way of practicing his religion.

In Jackson v. Keith, 2013 U.S. Dist. LEXIS 146441 (WD LA, Oct. 9, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 146443, June 3, 2013) and dismissed an inmate's complaint regarding delays and a cancellation of call-outs for the Islamic Community of Winnfield.

In Clark v. Tucker, 2013 U.S. Dist. LEXIS 147572 (MD FL, Oct. 11, 2013), a Florida federal district court dismissed with leave to amend an inmate's complaint that he was placed in confinement for four weeks without any clothes for speaking in tongues.

Cert. Denied In Monks' Victory Over Restrictive Rules Limiting Sale of Caskets

Last Tuesday, the U.S. Supreme Court denied review in Castille v. St. Joseph Abbey, (Docket No. 13-91, certiorari denied 10/15/2013). (Order List.) In the case, the U.S. 5th Circuit held unconstitutional rules issued by the Louisiana State Board of Embalmers and Funeral Directors that only allow funeral homes to sell caskets. The law was challenged by a group of Benedictine monks who make and sell wooden caskets at prices significantly lower than offered by funeral homes. (See prior posting.) The Baton Rouge Advocate yesterday reported on the Court's action.

New York Mayoral Candidate Criticized For Breach of Customs In Orthodox Jewish Neighborhood

New York City Republican mayoral candidate Joe Lhota is being criticized for his lack of familiarity with Orthodox Jewish customs during campaign stops this week in Brooklyn's Boro Park neighborhood.  According to Haaretz yesterday, in a stop at a small Orthodox synagogue, Lhota had female staffers among those who walked  with him into an ongoing sex-segregated prayer service.  Subsequently at a kosher soup kitchen, Lhota twice tried to shake hands with Orthodox Jewish women whose beliefs preclude physical contact with men other than their husband.  Lhota's Democratic opponent in the mayoral race, Bill de Blasio, said:  "I find it perplexing that he would have organized an event in a situation women wouldn’t have access to."

New Jersey Supreme Court Refuses Stay of Decision Allowing Same-Sex Marriage

The New Jersey Supreme Court yesterday denied a stay of a trial court's decision (see prior posting) extending the right to marry to same-sex couples. Before this decision, New Jersey law allowed same-sex couples to enter civil unions, but not to marry.  Beginning Monday they will now be able to marry.  In Garden State Equality v. Dow, (NJ Sup. Ct., Oct. 18, 2013), the state Supreme Court held unanimously that the state had not shown a reasonable probability of success on the merits in its appeal, saying:

The State's statutory scheme effectively denies committed same-sex partners in New Jersey the ability to receive federal benefits now afforded to married partners.

Bergen County Record reports on the decision.

French Constitutional Council Rejects Mayors' Attempt To Avoid Performing Same-Sex Marriages

France's Constitutional Council, its highest constitutional tribunal, today rejected claims by seven mayors that their freedom of conscience is violated by imposing on them an obligation to perform same-sex marriages.  According to Reuters, French law requires all couples to be married in civil ceremonies conducted by mayors or their deputies, after which the couples may also have a religious ceremony. After several mayors announced they would not perform same-sex marriages, the Interior Minister issued a memo warning them that they risked five years in jail or a 7,500€ fine. Here is the full text (in French) of today's decision in M. Frank M. et autres, (Const. Counc., Oct. 18, 2013) rejecting the mayors' complaint that no conscience clause was included in France's same sex marriage law enacted last May.  It is expected that the case will be appealed to the European Court of Human Rights.  [Thanks to Scott Mange for the lead.]

Oregon Will Recognize Out-of-State Same Sex Marriages For Purposes Of Tax and Benefit Laws

In Oregon, an Oct. 16 opinion of the Deputy Attorney General (full text) concludes that state agencies can and should recognize same-sex marriages validly performed in other states, for purposes of administering tax laws and benefit programs. Oregon permits same-sex domestic partnerships, and under the Oregon Family Fairness Act, domestic partners are entitled to the same benefits as married couples.  This week's opinion allows similar treatment for couples not registered as domestic partners in Oregon but validly married elsewhere, despite Oregon's state constitutional provision (Art. XV, Sec. 5a) prohibiting same-sex marriage. The opinion concludes that construing the constitutional provision to prohibit the recognition of out-of-state same-sex marriages would likely violate the federal constitution. BuzzFeed discusses the opinion and reprints a memo from the state Department of Administrative Services to state agency directors directing that "Oregon agencies must recognize all out-of-state marriages for the purposes of administering state programs." [Thanks to Dale Carpenter at Volokh Conspiracy for the lead.]

U.S. Ambassador-At-Large For International Religious Freedom Resigns

World reports that U.S. Ambassador-at-Large for International Religious Freedom Suzan Johnson Cook has resigned.  Wednesday was her last day at the U.S. State Department. Here is World's assessment of Cook's tenure:

[O]verall Cook left little impression among religious freedom advocates. She came to the position with a background as a pastor, with no diplomatic experience, and never seemed to embrace that diplomatic role for herself. While religious freedoms, especially in the Middle East, have spiraled downward in the last couple years, Cook did little publicly in the way of advocacy beyond presenting annual reports on violations.

[Thanks to Blog From the Capital for the lead.]

Camp Counselor Seeks To Withdraw Guilty Plea In Sex Assault Case, Claiming Pressure From Orthodox Jewish Community Led To Plea

In Toms River, New Jersey yesterday, a state Superior Court judge heard testimony in connection with the motion by former Orthodox Jewish camp counselor Yosef Kolko to withdraw his guilty plea to charges of sexual assault against a boy when the boy was 11 and 12 years old.  According to the Asbury Park Press, Kolko claims he was the target of a campaign in the Lakewood (NJ) Orthodox Jewish community to pressure him to plead guilty in order to avoid the negative publicity for the community that would come with a trial. Witnesses for Kolko say the campaign involved a combination of vivid descriptions of what prison would be like, and an offer of $100,000 and a job when he got out of jail if he plead guilty. Kolko steadfastly maintained his innocence until he decided to plead guilty while the trial was under way.

Belgian Animal Rights Group Accused of Exploiting Holocaust In Campaign Against Ritual Slaughter

In Belgium, Jewish and Muslim groups are strongly criticizing a radio ad calling for an end to Halal and kosher slaughter of animals (which is performed without first stunning the animal).  The ad was produced by the Antwerp-based animal welfare group GAIA.  According to yesterday's Times of Israel, the ad, which was sent by e-mail to 200 politicians, is seen by critics as using Holocaust themes to further the group's animal rights cause.  The ad delivers testimony of capture and transportation from a lamb waiting for slaughter. A Jewish spokesman called the ad "a new example of the trivialization of the crime of genocide..." However GAIA said: "This is an attempt to describe what animals experience now without any religious or historic connotations."

Missouri Bill To Restore School Christmas Celebrations Takes Effect After Override of Governor's Veto

As previously reported, last July Missouri Governor Jay Nixon vetoed HB 278 that provides:

No state or local governmental entity, public building, public park, public school, or public setting or place shall ban or otherwise restrict the practice, mention, celebration, or discussion of any federal holiday.

The bill was particularly aimed at restoring Christmas celebrations. Last week's St. Louis Jewish Light reports however that in an action largely unnoticed by the media (see this coverage), on Sept. 11 the state legislature voted to override the governor's veto.  The bill went into effect Oct. 11. In a letter sent to Missouri school administrators and board members, the bill's sponsor Rep. Rick Brattin wrote:

It is an honor for me to play a role in this process and to stand in defense to celebrate our holidays in the same ways that our parents and grandparents did. My hope is that HB 278 will help reverse the chilling effect we have seen on the ability of teachers and students to observe these holidays.

[Thanks to Joe Bernstein for the lead.]

Religious Pre-School's Exclusion From State Grant Program Required By State Constitution

In Trinity Lutheran Church of Columbia, Inc. v. Pauley, 2013 U.S. Dist. LEXIS 147674 (WD MO, Sept. 26, 2013),  a Missouri federal district court upheld the policy of the Missouri Department of Natural Resources Solid Waste Management Program to exclude from its Scrap Tire Program any organization controlled by a church or by a religious sect or denomination. Thus plaintiff's religiously-affiliated day care and preschool facility could not apply for a grant under the program to buy recycled tires to resurface its playground. First the court concluded that providing a grant through the Scrap Tire Program would violate Art. I, Sec. 7 of the Missouri constitution that prohibits the expenditure of any public funds to aid a church or religious denomination.  The court then rejected arguments that the ban violated plaintiff's free exercise, establishment clause, free speech and equal protection rights under the U.S. Constitution.

Still No Burial Decision For Nazi War Criminal After Controversial Funeral Disrupted

As previously reported, when convicted Nazi war criminal Erich Priebke died in Italy last week, the Vatican prohibited any church in Rome from celebrating a funeral mass for him.  However, as reported Tuesday by the International Business Times, the renegade traditionalist Society of St. Pius X decided to allow the funeral to be held at its Pius X Institute in the town of Albano Laziale just outside of Rome. Dozens of demonstrators attacked Priebke's hearse chanting "murderer" and anti-Fascist slogans as the body was moved to the Institute, and the mayor of the town said he would not allow burial there.  Now JTA reports that the funeral ceremony was called off when authorities refused to allow participants to enter, and Priebke's body is being held at a military airport with no final decision about burial.

Suit Challenges Oregon Same-Sex Marriage Ban

According to the Willamette Week, two same-sex couples filed suit in federal district court in Oregon this week challenging Oregon's state constitutional ban on same-sex marriage. One of the couples wants to marry in Oregon; the other couple wants its Canadian same-sex marriage recognized in Oregon. The complaint (full text) in Geiger v. Kitzhaber, (D OR, filed 10/15, 2013), contends that the Oregon constitutional ban violates the equal protection and due process clauses of the 14th Amendment. [Thanks to Alliance Alert for the lead.]

Amtrak Bus Driver Refuses To Allow Sikh Student To Board Wearing Kirpan

In Davis, California last Saturday, an Amtrak bus driver barred a Sikh college student from boarding the bus that connects with a train in Sacramento because the student was wearing his kirpan (Sikh ceremonial dagger). According to the Davis Enterprise, 20-year old managerial economics student Harsimran Singh had often worn his kirpan on this same bus. This time however, the driver called police when he spotted the 9-inch kirpan, and refused to allow Singh to board unless he would place the kirpan in his back pack and store it in the bus luggage compartment.  The Sikh faith requires wearing the kirpan next to one's body.

French High Court Upholds Scientology Fraud Convictions

AFP reports that in France, the Cour de Cassation, the country's highest court, yesterday upheld the 2009 fraud conviction of two French affiliates of the Church of Scientology for manipulating two women into buying products or enrolling in courses. (See prior posting.) Scientology's Celebrity Centre and its bookshop in Paris were fined the equivalent of $812,000 (US).  The court rejected Scientology's claim that the convictions violated its religious freedom.  France does not consider Scientology to be a religion.  The church is expected to appeal to the European Court of Human Rights.

President Issues Eid al-Adha Greetings

Yesterday, President Obama issued a statement (full text) extending best wishes for Eid al-Adha to Muslims around the world and congratulating those who performed the Hajj this year. The statement reads in part:

To commemorate Eid al-Adha, Muslims around the world are joining other faith communities in offering their assistance to those suffering from hunger, disease, and conflict.  Their service is a powerful example of the positive role that faith can play in motivating communities to work together to address shared challenges.

Another Non-Profit Challenge To Contraceptive Coverage Mandate

Last week, yet another lawsuit challenging the Affordable Care Act contraceptive coverage mandate was filed. The Becket Fund announced the filing of the class action by three Christian religious non-profits on behalf of over 100 ministries that currently receive health benefits through the Southern Baptist Convention's GuideStone Financial Resources, one of the largest multi-employer church health care plans in the country. The complaint (full text) in Reaching Souls International, Inc. v. Sebelius, (WD OK, filed 10/11/2013) contends that even under the final regulations that allow religious non-profits to have a third-party administrator furnish contraceptive coverage, plaintiffs' religious exercise is burdened because they are required to facilitate coverage for contraceptives that they consider to be abortifacients.

Woman Sues Christian Group Saying She Was Fired For Divorce While Men Were Treated Differently

Religion News Service reports on a lawsuit against InterVarsity Christian Fellowship by a former spiritual director who says she was fired because of her divorce.  IVCF has a Separation and Divorcing Staff Policy under which Alyce Conlon was placed on paid leave when she informed her supervisors that she and her husband were considering separating. When she was not successful in reconciling, she was fired.  She claims that two male colleagues who divorced and remarried were treated differently, being allowed to remain on staff.  IVCF responded to the lawsuit by saying in part:

As a Christian organization, InterVarsity Christian Fellowship’s credibility and witness depends on its ability to hire and retain personnel who share and abide by InterVarsity’s faith commitments. It is deeply regrettable that a former employee has chosen to challenge this key constitutional liberty.”

Animal Rights Activists Disrupt Eid al-Adha Animal Slaughter In Poland

In Poland yesterday, animal rights activists disrupted Eid al-Adha celebrations that traditionally involve the slaughter of live animals. AlJazeera reports that in the village of Bohoniki, activists tried to require Muslim Tatars to comply with the  requirement that animals be stunned before they are slaughtered. (See prior posting.) However religious leader Tomasz Miśkiewicz said at least one animal was killed to keep the culture of Muslim Tatars alive.

Cert. Filed In Contraceptive Mandate Case

The Thomas More Society announced that a petition for certiorari (full text) was filed today in the U.S. Supreme Court seeking review of the 6th Circuit's decision in Autocam Corp. v. Sebelius.  In the case, the 6th Circuit denied  a preliminary injunction in an Affordable Care Act contraceptive coverage mandate challenge by two related small businesses and their Catholic owners (See prior posting.)

North Carolina County Official Takes Step To Advance Same-Sex Marriage [Corrected]

In North Carolina, AP reports that Buncombe County Register of Deeds Drew Reisinger said yesterday that he will begin accepting marriage license applications from same-sex couples, but will then merely hold the applications and seek legal advice from state Attorney General Roy Cooper. The county official's statement came just hours after Attorney General Cooper said he personally supports same-sex marriage, but will defend the state's constitutional ban on same-sex marriage in court. [An earlier version of this posting incorrectly referred to South Carolina.]

Suit Challenges Lay-Off of Contract Military Chaplains During Government Shut-Down

The Thomas More Law Center announced yesterday that it has filed a suit on behalf of Catholic priest Fr. Ray Leonard, who is a civilian under contract with the Department of Defense to provide Catholic religious services at a naval submarine base.  The suit was also filed on behalf of one of Leonard's congregants.  The complaint (full text) in Leonard v. U.S. Department of Defense, (D DC, filed 10/14/2013) contends that plaintiffs' rights under the 1st Amendment and RFRA are violated because Leonard is unable to continue to celebrate daily mass at the naval base during the government shutdown. As interpreted by the Department of Defense, the recently enacted Pay Our Military Act is not broad enough to cover civilian contract chaplains, and the Anti-Deficiency Act, 31 USC 1342, prohibits the government from receiving Leonard's services free of charge. The suit seeks to enjoin application of the Anti-Deficiency Act to Leonard's speech and activities as a Catholic priest. CNN Wire reports on the case.

UPDATE: In an Oct. 16 press release, the Thomas More Law Center reports that the Justice Department and Department of the Navy decided that Fr. Leonard could resume all his religious duties as of that date.  However the lawsuit will continue to prevent a recurrence of the ban in any future government shutdown.

Malaysia Appeals Court Upholds Ban On Catholic Newspaper Using "Allah"

As reported by Reuters, the Court of Appeal of Malaysia today, in a 3-0 decision, reversed the High Court (see prior posting) and upheld a licensing condition imposed by the Minister of Security prohibiting the Catholic newspaper The Herald from using the word "Allah" in its Malay language edition to refer to God.  In Negeri v. Titular Roman Catholic Archbishop of Kuala Lumpur, (Malay. Ct. App., Oct. 14, 2013), the judges' views were encapsulated in a Summary of Decision, which was accompanied by separate opinions by Judges Mohamed Apandi Bin Ali (full text), Abdul Aziz Bin Abd Rahim (full text), and Mohd Zawawi Bin Salleh (full text).  The court held:

It is our common finding that the usage of the name “Allah” is not an integral part of the faith and practice of Christianity. From such finding, we find no reason why the respondent is so adamant to use the name “Allah” in their weekly publication. Such usage, if allowed, will inevitably cause confusion within the community.....

[T]he welfare of an individual or group must yield to that of the community.... [T]his is how the element of “in peace and harmony” in Article 3(1) is to be read with the freedom of religion in Article 11(1) of the Federal Constitution....

[S]ufficient material have been considered by the Minister in discharging his function and statutory power under the Printing Presses And Publications Act 1984. Although the test under the written law is subjective, there are sufficient evidence to show that such subjective decision was derived by considering all facts and circumstances in an objective manner. Thus, there is no plausible reason for the High Court to interfere with the Minister's decision.

In the case, (See prior related posting.)

Nazi War Criminal Erich Priebke Dies; Church, Italian and Argentine Governments, Refuse Funerals For Him

Convicted Nazi war criminal Erich Priebke died Friday at age 100 while serving a life sentence under house arrest in Rome at the home of his lawyer. As reported by AP, Priebke (after living nearly 50 years in Argentina) was extradited in 1995 to stand trial in Italy for the 1944 massacre at the Ardeatine Caves outside Rome in which 335 civilians were killed.  Pope Francis' vicar for Rome, Cardinal Agostino Vallini, has prohibited any church in Rome from celebrating a funeral mass for Priebke. The Rome archdiocese says his funeral must be held at home in strict privacy. Rome's police and civil officials said they would also bar any public ceremony out of security concerns. Meanwhile, Argentine Foreign Minister Hector Timerman said that Priebke's body would not be allowed into Argentina either. However Priebke' lawyer Paolo Giachini argued that as a practicing Catholic, Priebke deserves a Catholic funeral as a matter of his religious liberty. He suggested that Priebke might be buried in Germany, and a German Foreign Ministry spokesman said that German citizens had that right, though no request has been made by any of Priebke's family members.

Court Upholds Enforcement of Christian Arbitration Agreement In Wrongful Death Suit

In Spivey v. Teen Challenge of Florida, Inc. (FL App., Oct. 11, 2013), a Florida state appellate court upheld a trial court's enforcement of a Christian-based arbitration/ mediation agreement, requiring a mother to resolve her wrongful death action against a residential substance abuse program under the agreement that invoked rules of the Association of Christian Conciliation Services. The court observed that "private religious arbitration ... is exceedingly common in our pluralistic religious society...."

Holding that the mother, as the personal representative of her deceased 19-year old son, was bound by the agreement he signed, the court rejected several constitutional challenges to enforcement of the arbitration agreement.  The mother argued that she should not be required to engage in mediation that includes prayer as a part of the process, but the court held that "a personal representative generally cannot object that fulfilling the deceased’s wishes offends the religious sensibilities of the personal representative." The court concluded:

Indeed, had the trial court determined that the arbitration agreement was unenforceable due to its religious nature, its action “could itself arguably constitute an impermissible entanglement” under religion clause jurisprudence.

Recent Articles and Books of Interest

From SSRN:

• Muhammed Tawfiq Ladan, Managing Diversities for Peaceful Co-Existence in a Democratic Nigeria: A Human Rights Perspective, (August 20, 2013).
• Andrew Koppelman, 'Freedom of the Church' and the Authority of the State, (Journal of Contemporary Legal Issues, Forthcoming).
• Stephen M. Bainbridge, Must Salmon Love Meinhard? Agape and Partnership Fiduciary Duties, (UCLA School of Law, Law-Econ Research Paper No. 13-17, 2013).
• Perry Dane, Nature, Equality, and Same-Sex Marriage, (Buffalo Law Review Forthcoming).
• Benjamin L. Berger, Religious Diversity, Education, and the 'Crisis' in State Neutrality, (Canadian Journal of Law and Society, Forthcoming).

From SmartCILP:

• Julia Halloran McLaughlin, Taking Religion Out of Civil Divorce, 65 Rutgers Law Review 395-446 (2013).
• Symposium. In Search of a 'Grand Unified Theory': Thirty Years with the Endorsement Test. Articles by Carl H. Esbeck, Edward M. Gaffney, Jr., Patrick M. Garry, William M. Janssen and Andrew Koppelman. 7 Charleston Law Review 607-725 (2013).

Recent  Books:

• Daniel Jonah Goldhagen, The Devil That Never Dies: The Rise and Threat of Global Antisemitism (Little Brown, Sept. 2013), reviewed by the New York Times.
• Robert L. LaCosta, Gamaliel’s Advice: Taking Down God, (WestBow Press, June 2013), reviewed by the La Jolla Light.
• Denise A. Spellberg, Thomas Jefferson's Qur'an: Islam and the Founders, (Knopf, Oct. 1, 2013).

Hajj Begins; Fewer Visas Because of Health Concerns

In Saudi Arabia, the hajj began yesterday. AP reports that the Saudis cut the number of hajj visas by 20% for each country out of concern over a respiratory virus that has killed over 50 people in Saudi Arabia this year. The more than 2 million pilgrims this year (a 1 million reduction from last year) reflects fewer visas for the elderly, pregnant women and those with chronic illnesses.

Traditional Marriage Group Sues IRS Alleging Illegal Release of Tax Returns To Opponents

Earlier this month, the National Organization for Marriage-- an organization whose purpose is to protect traditional marriage and the faith organizations that support it-- announced that it has filed suit against the Internal Revenue Service over the alleged illegal release of its 2008 confidential tax return to ideological opponents. The complaint (full text) in National Organization For Marriage, Inc. v. U.S. Internal Revenue Service, (ED VA, filed 10/3/2013) alleges:

In March 2012, individuals employed by the IRS ... disclosed NOM's confidential ... 2008 IRS Fonn 990, Schedule B, which contains the names, home addresses, and contribution amounts of NOM's 2008 donors, to one or more third parties, including NOM's ideological opponent, the Human Rights Campaign....  On information and belief, the individuals from the IRS chose to make this disclosure ... specifically intending that those third parties would widely publish the information.... NOM's confidential return information was subsequently published on the Internet by third parties, including HRC and the Huffington Post ... making it available to millions of people. These disclosures are part of a deliberate attempt to chill the First Amendment activity of NOM, its donors, and others who associate with NOM.

The complaint seeks damages and injunctive relief.

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.